Company Reports; Financial Statements. (a) The Company has filed or furnished, as applicable, on a timely basis, all forms, statements, certifications, reports and documents required to be filed or furnished by it with or to the SEC pursuant to the Exchange Act or the Securities Act since June 30, 2014 (the “Applicable Date”) (the forms, statements, reports and documents filed with or furnished to the SEC since the Applicable Date and those filed with or furnished to the SEC subsequent to the date of this Agreement, in each case as amended, the “Company Reports”). Each of the Company Reports, at the time of its filing or being furnished complied or, if not yet filed or furnished, will comply in all material respects with the applicable requirements of the Securities Act, the Exchange Act and the Xxxxxxxx-Xxxxx Act of 2002 (the “Xxxxxxxx-Xxxxx Act”), and any rules and regulations promulgated thereunder applicable to the Company Reports. As of their respective dates (or, if amended prior to the date of this Agreement, as of the date of such amendment), the Company Reports did not, and any Company Reports filed with or furnished to the SEC subsequent to the date of this Agreement will not, contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements made therein, in light of the circumstances in which they were made, not misleading. (b) The Company is in compliance in all material respects with the applicable listing and corporate governance rules and regulations of Nasdaq. (c) The Company maintains disclosure controls and procedures required by Rule 13a-15 or 15d-15 under the Exchange Act. Such disclosure controls and procedures are designed to ensure that information required to be disclosed by the Company in its filings with the SEC under the Exchange Act is recorded and reported on a timely basis to the individuals responsible for the preparation of the Company’s filings with the SEC under the Exchange Act. The Company maintains internal control over financial reporting (as defined in Rule 13a-15 or 15d-15, as applicable, under the Exchange Act). Such internal control over financial reporting is designed to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with GAAP. The Company has disclosed, based on the most recent evaluation of its Chief Executive Officer and its Chief Financial Officer prior to the date of this Agreement, to the Company’s auditors and the audit committee of the Company’s Board of Directors (x) any significant deficiencies and material weaknesses in the design or operation of its internal controls over financial reporting that are reasonably likely to adversely affect the Company’s ability to record, process, summarize and report financial information and (y) any fraud, whether or not material, that involves management or other employees who have a significant role in the Company’s internal control over financial reporting. The Company has made available prior to the date of this Agreement to Parent (I) either materials relating to or a summary of any disclosure of matters described in clauses (x) or (y) in the preceding sentence made by management of the Company to its auditors and audit committee on or after the Applicable Date and prior to the date of this Agreement and (II) any material communication on or after the Applicable Date and prior to the date of this Agreement made by management of the Company or its auditors to the audit committee as required by the listing standards of Nasdaq, the audit committee’s charter or professional standards of the Public Company Accounting Oversight Board. Since the Applicable Date and prior to the date of this Agreement, no complaints from any source regarding a material violation of accounting procedures, internal accounting controls or auditing matters or compliance with Law, including from Company Employees regarding questionable accounting, auditing or legal compliance matters have, to the Knowledge of the Company, been received by the Company. (d) Each of the consolidated balance sheets included in or incorporated by reference into the Company Reports (including the related notes and schedules) fairly presents or, in the case of Company Reports filed after the date of this Agreement, will fairly present, in each case, in all material respects, the consolidated financial position of the Company and its Subsidiaries, as of the date of such balance sheet, and each of the consolidated statements of operations, cash flows and changes in stockholders’ equity (deficit) included in or incorporated by reference into the Company Reports (including any related notes and schedules) fairly presents, or, in the case of Company Reports filed after the date of this Agreement, will fairly present, in each case, in all material respects, the results of operations, retained earnings (loss) and changes in financial position, as the case may be, of the Company and its Subsidiaries for the periods set forth therein (subject, in the case of unaudited statements, to notes and normal year-end audit adjustments that are not or will not be material in amount or effect), in each case in accordance with GAAP consistently applied during the periods involved, except as may be noted therein or in the notes thereto. (e) Neither the Company nor any of its Subsidiaries has incurred any Indebtedness, or issued or sold any debt securities or rights to acquire any debt security of the Company or any of its Subsidiaries, the terms of which, or the terms of any instrument under which such Indebtedness, debt securities or rights were issued, requires the public listing of such Indebtedness, debt securities or rights or the maintenance by the Company or any of its Subsidiaries of registration under the Exchange Act.
Appears in 8 contracts
Samples: Merger Agreement, Agreement and Plan of Merger (Fox Corp), Amended and Restated Agreement and Plan of Merger (New Fox, Inc.)
Company Reports; Financial Statements. (ai) The Company has filed or furnished, as applicable, on a timely basis, all forms, statements, certifications, reports and documents required to be filed or furnished by it with or to the SEC pursuant to the Exchange Act or the Securities Act of 1933, as amended (the “Securities Act”), since June 30December 31, 2014 2011 (the “Applicable Date”) (the forms, statements, certifications, reports and documents filed with or furnished to the SEC since the Applicable Date and those filed with or furnished to the SEC subsequent to the date of this Agreementhereof, in each case as amendedincluding any amendments thereto, the “Company Reports”). Each of the Company Reports, at the time of its filing or being furnished complied or, if not yet filed or furnished, will comply in all material respects with the applicable requirements of the Securities Act, Act and the Exchange Act and the Xxxxxxxx-Xxxxx Act of 2002 (the “Xxxxxxxx-Xxxxx Act”), and any rules and regulations promulgated thereunder applicable to the Company Reports. As of their respective dates (or, if amended prior to the date of this Agreementhereof, as of the date of such amendment), the Company Reports did not, and any Company Reports filed with or furnished to the SEC subsequent to the date of this Agreement hereof will not, contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements made therein, in light of the circumstances in which they were made, not misleading.
(bii) The Company is in compliance in all material respects with the applicable listing and corporate governance rules and regulations of Nasdaqthe NYSE.
(ciii) The Company maintains disclosure controls and procedures required Each of the consolidated balance sheets included in or incorporated by Rule 13a-15 or 15d-15 under the Exchange Act. Such disclosure controls and procedures are designed to ensure that information required to be disclosed by reference into the Company Reports (including the related notes and schedules) fairly presents in all material respects, or, in the case of Company Reports filed after the date hereof, will fairly present in all material respects the consolidated financial position of the Company and its filings with consolidated Subsidiaries as of its date and each of the SEC under consolidated statements of (loss) income, comprehensive (loss) income, cash flows and equity included in or incorporated by reference into the Exchange Act is recorded Company Reports (including any related notes and reported on a timely basis to schedules) fairly presents in all material respects, or, in the individuals responsible case of Company Reports filed after the date hereof, will fairly present in all material respects, the financial position, results of operations and cash flows, as the case may be, of the Company and its consolidated Subsidiaries for the preparation periods set forth therein (subject, in the case of unaudited statements, to notes and year-end adjustments), in each case in accordance with U.S. generally accepted accounting principles (“GAAP”) applied consistently during the Company’s filings with the SEC under the Exchange Act. periods presented, except as may be noted therein.
(iv) The Company maintains internal control over financial reporting (as defined in Rule 13a-15 or 15d-15, as applicable, under the Exchange Act). Such internal control over financial reporting is designed to provide effective in providing reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with GAAPGAAP in all material respects. The Except as has not had, and would not be reasonably likely to have, individually or in the aggregate, a Company Material Adverse Effect, (A) the Company maintains disclosure controls and procedures required by Rule 13a-15 or 15d-15 under the Exchange Act that are effective to ensure that information required to be disclosed by the Company is recorded and reported on a timely basis to the individuals responsible for the preparation of the Company’s filings with the SEC and other public disclosure documents and (B) the Company has disclosed, based on the its most recent evaluation of its Chief Executive Officer and its Chief Financial Officer prior to the date of this Agreement, to the Company’s outside auditors and the audit committee of the Company’s Board board of Directors directors of the Company (x1) any significant deficiencies and material weaknesses in the design or operation of its internal controls over financial reporting (as defined in Rule 13a-15(f) under the Exchange Act) that are reasonably likely to adversely affect the Company’s ability to record, process, summarize and report financial information and (y2) any fraud, known to the Company, whether or not material, that involves management or other employees who have a significant role in the Company’s internal control controls over financial reporting. The Company has made available prior to the date of this Agreement to Parent (I) either materials relating to or a summary of any disclosure of matters described in clauses (x) or (y) in the preceding sentence made by management of the Company to its auditors and audit committee on or after the Applicable Date and prior to the date of this Agreement and (II) any material communication on or after the Applicable Date and prior to the date of this Agreement made by management of the Company or its auditors to the audit committee as required by the listing standards of Nasdaq, the audit committee’s charter or professional standards of the Public Company Accounting Oversight Board. Since the Applicable Date and prior to the date of this Agreement, no complaints from any source regarding a material violation of accounting procedures, internal accounting controls or auditing matters or compliance with Law, including from Company Employees regarding questionable accounting, auditing or legal compliance matters have, to the Knowledge of the Company, been received by the Company.
(d) Each of the consolidated balance sheets included in or incorporated by reference into the Company Reports (including the related notes and schedules) fairly presents or, in the case of Company Reports filed after the date of this Agreement, will fairly present, in each case, in all material respects, the consolidated financial position of the Company and its Subsidiaries, as of the date of such balance sheet, and each of the consolidated statements of operations, cash flows and changes in stockholders’ equity (deficit) included in or incorporated by reference into the Company Reports (including any related notes and schedules) fairly presents, or, in the case of Company Reports filed after the date of this Agreement, will fairly present, in each case, in all material respects, the results of operations, retained earnings (loss) and changes in financial position, as the case may be, of the Company and its Subsidiaries for the periods set forth therein (subject, in the case of unaudited statements, to notes and normal year-end audit adjustments that are not or will not be material in amount or effect), in each case in accordance with GAAP consistently applied during the periods involved, except as may be noted therein or in the notes thereto.
(e) Neither the Company nor any of its Subsidiaries has incurred any Indebtedness, or issued or sold any debt securities or rights to acquire any debt security of the Company or any of its Subsidiaries, the terms of which, or the terms of any instrument under which such Indebtedness, debt securities or rights were issued, requires the public listing of such Indebtedness, debt securities or rights or the maintenance by the Company or any of its Subsidiaries of registration under the Exchange Act.
Appears in 4 contracts
Samples: Agreement and Plan of Merger (Potomac Electric Power Co), Agreement and Plan of Merger (Exelon Corp), Merger Agreement (Exelon Corp)
Company Reports; Financial Statements. (ai) The Company has filed or furnished, as applicable, on a timely basis, basis all forms, statements, certifications, reports and documents required to be filed or furnished by it with or to the SEC pursuant to the Exchange Act or the Securities Act since June 30December 31, 2014 2016 (the “Applicable Date”) (the forms, statements, reports and documents filed with or furnished to the SEC since the Applicable Date and those filed with or furnished to the SEC subsequent to the date of this Agreement, in each case as amendedincluding any amendments thereto, the “Company Reports”). Each of the Company Reports, at the time of its filing or being furnished complied orcomplied, or if not yet filed or furnished, will comply when so filed or furnished comply, in all material respects with the applicable requirements of the Securities Act, the Exchange Act and the Xxxxxxxx-Xxxxx Act of 2002 (the “Xxxxxxxx-Xxxxx Act”), and any rules and regulations promulgated thereunder applicable to the Company Reports. As of their respective dates (or, if amended prior to the date of this Agreement, as of the date of such amendment), the Company Reports did not, and any none of the Company Reports filed with or furnished to the SEC subsequent to the date of this Agreement will notwhen so filed or furnished, contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements made therein, in light of the circumstances in which they were made, not misleading.
(b) . The Company is in compliance in all material respects with the applicable listing and corporate governance rules and regulations of Nasdaqthe NYSE.
(cii) The Company maintains disclosure controls and procedures required by Rule 13a-15 or 15d-15 under the Exchange Act. Such disclosure controls and procedures are reasonably designed to ensure that all material information required to be disclosed by the Company in its filings with the SEC under the Exchange Act is recorded and reported on a timely basis to the individuals responsible for the preparation of the Company’s filings with the SEC under the Exchange Actand other public disclosure documents. The Company maintains internal control over financial reporting (as defined in and meeting the requirements of Rule 13a-15 or 15d-15, as applicable, under the Exchange Act). Such internal control over financial reporting is designed to provide effective in providing reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with GAAP and includes policies and procedures that (A) pertain to the maintenance of records that in reasonable detail accurately and fairly reflect the transactions and dispositions of the assets of the Company and its Subsidiaries, (B) provide reasonable assurance that transactions are recorded as necessary to permit preparation of financial statements in accordance with GAAP, and that receipts and expenditures of the Company and its Subsidiaries are being made only in accordance with authorizations of management and directors of the Company, and (C) provide reasonable assurance regarding prevention or timely detection of unauthorized acquisition, use or disposition of the Company’s or any of its Subsidiaries’ assets that would be reasonably likely to have a material effect on its financial statements. The Company has disclosed, based on the most recent evaluation of its Chief Executive Officer chief executive officer and its Chief Financial Officer chief financial officer prior to the date of this Agreement, to the Company’s its auditors and the audit committee of the Company’s Board its board of Directors directors (x1) any significant deficiencies and material weaknesses in the design or operation of its internal controls control over financial reporting that are reasonably likely to adversely affect the Company’s ability to record, process, summarize and report financial information and has identified for the Company’s auditors and audit committee of its board of directors any material weaknesses in internal control over financial reporting and (y2) any fraud, whether or not material, that involves management or other employees who have a significant role in the Company’s internal control over financial reporting. The Company has made available prior to the date of this Agreement to Parent (I) either materials relating to or a summary of any disclosure of matters described in clauses (x) or (y) in the preceding sentence made by management of the Company to its auditors and audit committee on or after the Applicable Date and prior to the date of this Agreement and (II) any material communication on or after the Applicable Date and prior to the date of this Agreement made by management of the Company or its auditors to the audit committee as required by the listing standards of Nasdaq, the audit committee’s charter or professional standards of the Public Company Accounting Oversight Board. Since the Applicable Date Date, no material complaints from any source regarding accounting, internal accounting controls or auditing matters, and prior to no material concerns from Company employees regarding questionable accounting or auditing matters, have been received by the Company. As of the date of this Agreement, no there have not been, since the Applicable Date, any material complaints from any source or concerns made through the Company’s whistleblower hot line or equivalent system for receipt of employee concerns regarding a material violation possible violations of accounting procedures, internal accounting controls or auditing matters or compliance with Law, including from Company Employees regarding questionable accounting, auditing that remain outstanding or legal compliance matters have, to the Knowledge of the Company, been received by the Companyunresolved.
(diii) Each of the consolidated balance sheets included in or incorporated by reference into the Company Reports (including the related notes and schedules) fairly presents or, in the case of Company Reports filed after the date of this Agreement, will fairly present, in each case, in all material respects, the consolidated financial position of the Company and its Subsidiaries, as of the date of such balance sheet, and each of the consolidated statements of operations, cash flows and changes in stockholders’ equity (deficit) included in or incorporated by reference into the Company Reports (including any related notes and schedules) fairly presents, or, in the case of Company Reports filed after the date of this Agreement, will fairly presentpresent in all material respects, the consolidated financial position of the Company and its consolidated Subsidiaries as of its date and each of the consolidated statements of operations, comprehensive income, changes in equity and cash flows included in or incorporated by reference into the Company Reports, including any related notes and schedules, fairly presents in all material respects, or, in each casethe case of Company Reports filed after the date of this Agreement, will fairly present in all material respects, the results of operations, cash flows, retained earnings (loss) and changes in financial position, as the case may be, of the Company and its consolidated Subsidiaries for the periods set forth therein (subject, in the case of unaudited statements, to notes and normal year-end audit adjustments that are not or will not be material in amount or effect), in each case in accordance with GAAP U.S. generally accepted accounting principles (“GAAP”) consistently applied during the periods involved, except as may be noted therein or in the notes theretotherein.
(e) Neither the Company nor any of its Subsidiaries has incurred any Indebtedness, or issued or sold any debt securities or rights to acquire any debt security of the Company or any of its Subsidiaries, the terms of which, or the terms of any instrument under which such Indebtedness, debt securities or rights were issued, requires the public listing of such Indebtedness, debt securities or rights or the maintenance by the Company or any of its Subsidiaries of registration under the Exchange Act.
Appears in 3 contracts
Samples: Merger Agreement (Cleveland-Cliffs Inc.), Merger Agreement (Cleveland-Cliffs Inc.), Merger Agreement (Ak Steel Holding Corp)
Company Reports; Financial Statements. (ai) The To the best knowledge of the Company, each of the Company and its Subsidiaries has filed or furnished, as applicable, on a timely basis, made all forms, statements, certifications, reports and documents filings required to be filed or furnished by it made with or to the SEC pursuant to the Exchange Act or the Securities Act since June 30, 2014 (the “Applicable Date”) (the forms, statements, reports and documents filed with or furnished to the SEC since the Applicable Date and those January 1, 2002 (collectively, including any such reports filed with or furnished to the SEC subsequent to the date of this Agreement, in each case as amendedhereof, the “Company Reports”). Each , none of the Company Reports, at the time or any of its Subsidiaries has made or is or has been required to make any filing or being furnished complied orwith any other Governmental Entity since January 1, if not yet filed or furnished2002, will comply in all material respects with the applicable requirements other than Tax filings and other routine corporate filings and each of the Securities ActCompany and its Subsidiaries has made available to the Parent each schedule, the Exchange Act and the Xxxxxxxx-Xxxxx Act of 2002 report or other filing (including any amendments or supplements thereto) prepared by it since December 31, 2003 (the “Xxxxxxxx-Xxxxx ActAudit Date”), each in the form (including exhibits and any rules amendments or supplements thereto) filed with the SEC. The Company has made available to Parent true and regulations promulgated thereunder complete copies of each Company Report and each of the Company Reports so delivered (A) are, and any Company Reports filed with the SEC subsequent to the date hereof will be, in material compliance with all Laws and other requirements applicable to such Company Reports and (B) were, and any Company Reports filed with the SEC subsequent to the date hereof will be, timely made. Neither the Company Reportsnor any of its Subsidiaries has received or is otherwise aware of any comments or inquiries from the SEC relating to any Company Report that, individually or in the aggregate, have had or is reasonably expected to have a Company Material Adverse Effect, or is reasonably expected to prevent, materially delay or materially impair the ability of the Company to consummate the Merger or any other transactions contemplated by this Agreement. As of their respective dates (or, or if amended prior to the date of this Agreementamended, as of the date of such amendment), the Company Reports did not, and any Company Reports filed with or furnished to the SEC subsequent to the date of this Agreement hereof will not, contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements made therein, in light of the circumstances in which they were made, not misleading.
(b) The Company is in compliance in all material respects with the applicable listing and corporate governance rules and regulations of Nasdaq.
(c) The Company maintains disclosure controls and procedures required by Rule 13a-15 or 15d-15 under the Exchange Act. Such disclosure controls and procedures are designed to ensure that information required to be disclosed by the Company in its filings with the SEC under the Exchange Act is recorded and reported on a timely basis to the individuals responsible for the preparation of the Company’s filings with the SEC under the Exchange Act. The Company maintains internal control over financial reporting (as defined in Rule 13a-15 or 15d-15, as applicable, under the Exchange Act). Such internal control over financial reporting is designed to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with GAAPfact. The Company has disclosed, based on the most recent evaluation of its Chief Executive Officer and its Chief Financial Officer prior delivered to the date Parent true and complete copies of this Agreement, to the Company’s auditors and the audit committee of the Company’s Board of Directors (x) any significant deficiencies and material weaknesses in the design or operation audited consolidated financial statements of its internal controls over financial reporting that are reasonably likely to adversely affect PCX for the Company’s ability to recordfiscal year ended December 31, process2003, summarize and report financial information and (y) any fraudthe unaudited consolidated financial statements of PCX for the quarterly periods ended March 31, whether or not material2004 and June 30, that involves management or other employees who have a significant role in 2004, and (z) the Company’s internal control over unaudited consolidated financial reporting. The statements of the Company has made available prior to for the date of this Agreement to Parent quarterly period ended September 30, 2004 (Ithe “September 30, 2004 Company Financial Statements”) either materials relating to or a summary of any disclosure of matters described in clauses ((x) or ), (y) in the preceding sentence made by management of the Company to its auditors and audit committee on or after the Applicable Date and prior to the date of this Agreement and (IIz) any material communication on or after the Applicable Date and prior to the date of this Agreement made by management of the Company or its auditors to the audit committee as required by the listing standards of Nasdaqcollectively, the audit committee’s charter or professional standards of the Public “Company Accounting Oversight BoardFinancial Statements”). Since the Applicable Date and prior to the date of this Agreement, no complaints from any source regarding a material violation of accounting procedures, internal accounting controls or auditing matters or compliance with Law, including from Company Employees regarding questionable accounting, auditing or legal compliance matters have, to the Knowledge of the Company, been received by the Company.
(d) Each of the consolidated balance sheets included in or incorporated by reference into the Company Reports Financial Statements (including the related notes and schedules) fairly presents or, in the case of Company Reports filed after the date of this Agreement, will fairly present, in each case, in all material respects, the consolidated financial position of the Company and its Subsidiaries, Subsidiaries as of the its date of such balance sheet, and each of the consolidated statements of operationsincome, retained earnings, and cash flows and of changes in stockholders’ equity (deficit) financial position included in or incorporated by reference into the Company Reports Financial Statements (including any related notes and schedules) fairly presents, or, in the case of Company Reports filed after the date of this Agreement, will fairly present, in each case, in all material respects, presents the results of operations, retained earnings (loss) earnings, stockholders’ equity, cash flows and changes in financial position, as the case may be, of the Company and its Subsidiaries for the periods set forth therein (subject, in the case of unaudited statements, to the absence of notes and normal year-end audit adjustments that are not or adjustments, which will not be material in amount or effect), in each case in accordance conformity with GAAP U.S. generally accepted accounting principles (“GAAP”) consistently applied during the periods involved, except as may be noted therein or in the notes theretotherein.
(eii) Neither the Company nor any of its Subsidiaries has incurred any Indebtedness, or issued or sold any debt securities or rights to acquire any debt security The consolidated accounts receivable and accounts payable of the Company Company, for the period following the Calculation Month-End, will have been paid, collected or any accrued, as the case may be, in the ordinary and usual course of its Subsidiaries, the terms of which, or the terms of any instrument under which such Indebtedness, debt securities or rights were issued, requires the public listing of such Indebtedness, debt securities or rights or the maintenance by the Company or any of its Subsidiaries of registration under the Exchange Actbusiness consistent with past practice.
Appears in 3 contracts
Samples: Agreement and Plan of Merger (Archipelago Holdings Inc), Agreement and Plan of Merger (Archipelago Holdings Inc), Agreement and Plan of Merger (Archipelago Holdings Inc)
Company Reports; Financial Statements. (a) The Company has filed or furnished, as applicable, on a timely basis, all forms, statements, certifications, reports and documents Company Reports required to be filed or furnished by it with or to the SEC pursuant to the Exchange Act or the Securities Act since June 30SEC. As of their respective filing date or, 2014 (the “Applicable Date”) (the formsif amended, statements, reports and documents filed with or furnished to the SEC since the Applicable Date and those filed with or furnished to the SEC subsequent to as of the date of this Agreementthat last such amendment, in each case as amended, the “Company Reports”). Each of the Company Reports, at the time of its filing or being furnished Report has complied or, if not yet filed or furnished, will comply in all material respects with the applicable requirements of the Securities Act, the Exchange Act and the Xxxxxxxx-Xxxxx Act of 2002 (the “Xxxxxxxx-Xxxxx Exchange Act”), and any rules and regulations promulgated thereunder applicable to the Company Reports. As of their respective dates (or, if amended prior to the date of this Agreement, as applicable, except as would not, individually or in the aggregate, reasonably be likely to have a Company Material Adverse Effect. None of the date of such amendment), the Company Reports did notcontained when filed (and, in the case of registration statements and any Company Reports filed with or furnished to proxy statements, on the SEC subsequent to dates of effectiveness and the date dates of this Agreement will notmailing, contain respectively) any untrue statement of a material fact or omit omitted or omits or will omit, as the case may be, to state a material fact required to be stated or incorporated by reference therein or necessary to make the statements made therein, in the light of the circumstances in under which they were or are made, not misleading.
(b) The Company is has made available (including via the SEC’s XXXXX system, as applicable) to Parent all of the Company Financial Statements. The Company Financial Statements fairly present, in compliance conformity in all material respects with GAAP, in each case, consistently applied for the applicable listing periods involved, the consolidated financial position of the Company at the respective dates thereof and corporate governance rules the consolidated results of its operations and regulations changes in cash flows for the respective periods indicated (subject, in the case of Nasdaqunaudited statements, to normal year-end audit adjustments consistent with GAAP).
(c) There are no liabilities of the Company or any of its Subsidiaries, whether fixed, contingent or otherwise, other than liabilities (i) disclosed and provided for in the Company Balance Sheet or in the balance sheets included in the Company Reports filed prior to the date of this Agreement, (ii) incurred in the ordinary course of business since December 31, 2018, (iii) incurred on behalf of the Company in connection with the transactions contemplated by this Agreement or (iv) which would not, individually or in the aggregate, reasonably be likely to have a Company Material Adverse Effect.
(d) The Company maintains “disclosure controls and procedures required by Rule 13a-15 or 15d-15 procedures” (as defined in Rules 13a-15(e) and 15d-15(e) under the Exchange Act. Such disclosure controls and procedures are ) reasonably designed to ensure that information required to be disclosed by the Company in reports that its filings with the SEC files or submits under the Exchange Act is recorded recorded, processed, summarized and reported on a timely basis within the time periods specified in the rules and forms of the SEC and that such information is accumulated and communicated to the individuals responsible for the preparation management of the Company’s filings Company as appropriate to allow timely decisions regarding required disclosure and to make the certifications required by the Exchange Act with respect to the SEC Company Reports.
(e) The Company maintains a system of “internal control over financial reporting” (as defined in Rules 13a-15(f) and 15d-15(f) under the Exchange Act. The Company maintains internal control over financial reporting (as defined in Rule 13a-15 or 15d-15, as applicable, under the Exchange Act). Such internal control over financial reporting is designed ) sufficient to provide reasonable assurance regarding the reliability of financial reporting (i) that receipts and expenditures are made in accordance with management’s authorization, (ii) that transactions are recorded as necessary to permit the preparation of financial statements for external purposes in accordance with GAAP. GAAP and (iii) regarding prevention and timely detection of the unauthorized acquisition, use or disposition of the Company’s assets that could have a material effect on the financial statements.
(f) The Company has disclosed, based on the most recent evaluation of its Chief Executive Officer and its Chief Financial Officer prior to the date of this Agreementinternal control over financial reporting, to the Company’s auditors and the audit committee of the board of directors of the Company’s Board of Directors , (xi) any all “significant deficiencies and deficiencies” or “material weaknesses weaknesses” in the design or operation of its internal controls control over financial reporting that which are reasonably likely to adversely affect the Company’s ability to record, process, summarize and report financial information and (yii) any fraud, whether or not material, that involves management or other employees who have a significant role in the Company’s internal control over financial reporting. The Company has made available prior to For the date purposes of this Agreement to Parent (I) either materials relating to or a summary of any disclosure of matters described in clauses (x) or (y) in the preceding sentence made by management of the Company to its auditors and audit committee on or after the Applicable Date and prior to the date of this Agreement and (II) any material communication on or after the Applicable Date and prior to the date of this Agreement made by management of the Company or its auditors to the audit committee as required by the listing standards of NasdaqSection 4.08(f), the audit committee’s charter or professional standards terms “significant deficiency” and “material weakness” shall have the meanings assigned to them in Appendix A of Auditing Standard No. 5 of the Public Company Accounting Oversight Board. Since the Applicable Date and prior to , as in effect on the date of this Agreement, no complaints from any source regarding a material violation of accounting procedures, internal accounting controls or auditing matters or compliance with Law, including from Company Employees regarding questionable accounting, auditing or legal compliance matters have, to the Knowledge of the Company, been received by the Company.
(dg) Each of the consolidated balance sheets included in or incorporated by reference into the Company Reports Since December 31, 2018, (including the related notes and schedulesi) fairly presents or, in the case of Company Reports filed after the date of this Agreement, will fairly present, in each case, in all material respects, the consolidated financial position of the Company and its Subsidiaries, as of the date of such balance sheet, and each of the consolidated statements of operations, cash flows and changes in stockholders’ equity (deficit) included in or incorporated by reference into the Company Reports (including any related notes and schedules) fairly presents, or, in the case of Company Reports filed after the date of this Agreement, will fairly present, in each case, in all material respects, the results of operations, retained earnings (loss) and changes in financial position, as the case may be, of the Company and its Subsidiaries for the periods set forth therein (subject, in the case of unaudited statements, to notes and normal year-end audit adjustments that are not or will not be material in amount or effect), in each case in accordance with GAAP consistently applied during the periods involved, except as may be noted therein or in the notes thereto.
(e) Neither neither the Company nor any of its Subsidiaries has incurred received any Indebtednessmaterial complaint, allegation, assertion or issued claim, regarding the accounting or sold auditing practices, procedures, methodologies or methods of the Company or any debt securities of its Subsidiaries or rights to acquire their respective internal accounting controls, including any debt security credible complaint, allegation, assertion or claim that the Company or any of its Subsidiaries has engaged in questionable accounting or auditing practices, and (ii) no attorney representing the Company or any of its Subsidiaries, whether or not employed by the terms Company or any of whichits Subsidiaries, has reported evidence of a material violation of securities Laws, breach of fiduciary duty or the terms of any instrument under which such Indebtedness, debt securities or rights were issued, requires the public listing of such Indebtedness, debt securities or rights or the maintenance similar violation by the Company or any of its Subsidiaries or their respective officers, directors, employees or agents to the board of registration directors of the Company or any committee thereof or to any director or officer of the Company pursuant to the rules of the SEC adopted under Section 307 of the Xxxxxxxx-Xxxxx Act of 2002.
(h) There are no “off balance sheet arrangements” as defined in Item 303 of Regulation S-K under the Exchange Securities Act, to which the Company or any of its Subsidiaries is a party.
Appears in 3 contracts
Samples: Merger Agreement (Fidelity National Financial, Inc.), Merger Agreement (Fidelity National Financial, Inc.), Merger Agreement (FGL Holdings)
Company Reports; Financial Statements. (ai) The Since December 31, 2007, the Company has and its Subsidiaries have filed or furnished, as applicable, on a timely basis, basis (taking into account all applicable grace periods) all material forms, statements, certifications, reports and other documents required to be filed or furnished by it with or to them under the SEC pursuant to Public Utility Holding Company Act of 2005, the Exchange Energy Policy Act or of 2005, the Securities FPA, the Communications Act since June 30of 1934, 2014 and the Laws of FERC, the Department of Energy, the FCC and applicable state public utility Laws (the “Applicable Date”) (the such forms, statements, certifications, reports and other documents filed with or furnished to the SEC since the Applicable Date December 31, 2007 and those filed with or furnished to the SEC subsequent to the date of this Agreementhereof, in each case as amendedcollectively, the “Company Reports”). Each Company Report, as of its filing date (or if amended, as of the date of such amendment), complied or, if not yet filed or furnished, will comply in all material respects with applicable requirements of applicable Laws and the rules and regulations thereunder. Since December 31, 2007, the Company and its Subsidiaries have filed or furnished, as applicable, on a timely basis (taking into account all applicable grace periods) all forms, certifications, reports, registration statements, definitive proxy statements and other documents required to be filed or furnished by them with the SEC under the Securities Act and the Exchange Act (such forms, certifications, reports, registration statements, definitive proxy statements and other documents filed or furnished since December 31, 2007 and those filed or furnished subsequent to the date hereof, collectively, the “Company SEC Reports”). Each of the Company ReportsSEC Reports (including any financial statements or schedules included therein), at the time of its filing or being furnished (or if amended, as of the date of such amendment), complied or, if not yet filed or furnished, will comply in all material respects with the applicable requirements of the Securities Act, the Exchange Act and the Xxxxxxxx-Xxxxx Act of 2002 (the “Xxxxxxxx-Xxxxx Act”), and any rules and regulations promulgated thereunder applicable to the Company SEC Reports. As of their respective dates (or, if amended prior to the date of this Agreementhereof, as of the date of such amendment), the Company SEC Reports did not, and any Company SEC Reports filed with or furnished to the SEC subsequent to the date of this Agreement hereof will not, contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements made therein, in light of the circumstances in which they were made, not misleading. As of the date hereof, there are no material outstanding or unresolved comments received from the SEC with respect to any of the Company SEC Reports.
(b) The Company is in compliance in all material respects with the applicable listing and corporate governance rules and regulations of Nasdaq.
(c) The Company maintains disclosure controls and procedures required by Rule 13a-15 or 15d-15 under the Exchange Act. Such disclosure controls and procedures are designed to ensure that information required to be disclosed by the Company in its filings with the SEC under the Exchange Act is recorded and reported on a timely basis to the individuals responsible for the preparation of the Company’s filings with the SEC under the Exchange Act. The Company maintains internal control over financial reporting (as defined in Rule 13a-15 or 15d-15, as applicable, under the Exchange Act). Such internal control over financial reporting is designed to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with GAAP. The Company has disclosed, based on the most recent evaluation of its Chief Executive Officer and its Chief Financial Officer prior to the date of this Agreement, to the Company’s auditors and the audit committee of the Company’s Board of Directors (x) any significant deficiencies and material weaknesses in the design or operation of its internal controls over financial reporting that are reasonably likely to adversely affect the Company’s ability to record, process, summarize and report financial information and (y) any fraud, whether or not material, that involves management or other employees who have a significant role in the Company’s internal control over financial reporting. The Company has made available prior to the date of this Agreement to Parent (I) either materials relating to or a summary of any disclosure of matters described in clauses (x) or (y) in the preceding sentence made by management of the Company to its auditors and audit committee on or after the Applicable Date and prior to the date of this Agreement and (II) any material communication on or after the Applicable Date and prior to the date of this Agreement made by management of the Company or its auditors to the audit committee as required by the listing standards of Nasdaq, the audit committee’s charter or professional standards of the Public Company Accounting Oversight Board. Since the Applicable Date and prior to the date of this Agreement, no complaints from any source regarding a material violation of accounting procedures, internal accounting controls or auditing matters or compliance with Law, including from Company Employees regarding questionable accounting, auditing or legal compliance matters have, to the Knowledge of the Company, been received by the Company.
(dii) Each of the audited consolidated balance sheets financial statements and unaudited interim consolidated financial statements of the Company included in or incorporated by reference into the Company SEC Reports as amended prior to the date hereof (including the related notes and schedules) fairly presents or(collectively, the “Company Financial Statements”) has been, and in the case of Company SEC Reports filed after the date hereof will be, prepared in accordance with United States generally accepted accounting principles (“GAAP”), consistently applied during the periods involved (except as may be indicated therein or in the notes thereto and subject, in the case of Company Reports filed after the date of this Agreementunaudited statements, will fairly present, in each case, in all material respects, the consolidated financial position of the Company to normal year-end audit adjustments) and its Subsidiaries, as of the date of such balance sheet, and each of the consolidated statements of operations, cash flows and changes in stockholders’ equity (deficit) included in or incorporated by reference into the Company Reports (including any related notes and schedules) fairly presents, or, in the case of Company SEC Reports filed after the date of this Agreementhereof, will fairly present, in each case, in all material respects, respects the results of operations, retained earnings (loss) and changes in consolidated financial position, as the case may be, position of the Company and its Subsidiaries as of the dates thereof and the results of their operations and consolidated cash flows for the periods set forth therein (then ended, subject, in the case of the unaudited interim financial statements, to notes and normal year-end audit adjustments that are not or will not be material in amount or effect), in each case in accordance with GAAP consistently applied during the periods involved, except as may be noted therein or in the notes theretoadjustments.
(e) Neither the Company nor any of its Subsidiaries has incurred any Indebtedness, or issued or sold any debt securities or rights to acquire any debt security of the Company or any of its Subsidiaries, the terms of which, or the terms of any instrument under which such Indebtedness, debt securities or rights were issued, requires the public listing of such Indebtedness, debt securities or rights or the maintenance by the Company or any of its Subsidiaries of registration under the Exchange Act.
Appears in 3 contracts
Samples: Merger Agreement (Icahn Enterprises L.P.), Merger Agreement (Dynegy Inc.), Merger Agreement (Dynegy Inc.)
Company Reports; Financial Statements. (ai) The Company has filed or furnished, as applicable, on a timely basis, all forms, statements, certifications, reports and documents required to be filed or furnished by it with or to the SEC pursuant to Securities and Exchange Commission (the “SEC”) under the Exchange Act or the Securities Act of 1933, as amended (the “Securities Act”) since June 30December 31, 2014 2003 (the “Applicable Date”) (the forms, statements, reports and documents filed with or furnished to the SEC since the Applicable Date and those filed with or furnished to the SEC subsequent to the date of this Agreementhereof, in each case as amendedincluding any amendments thereto, the “Company Reports”). Each of the Company Reports, at the time of its filing or being furnished complied or, if not yet filed or furnished, will comply in all material respects with the applicable requirements of the Securities Act, the Exchange Act and the Xxxxxxxx-Xxxxx Act of 2002 (the “Xxxxxxxx-Xxxxx Act”), and any rules and regulations promulgated thereunder applicable to the Company Reports. As of their respective dates (or, if amended prior to the date of this Agreementhereof, as of the date of such amendment), the Company Reports did not, and any Company Reports filed with or furnished to with the SEC subsequent to the date of this Agreement hereof will not, contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements made therein, in light of the circumstances in which they were made, not misleading, provided, that the Company makes no representation or warranty regarding any information provided in writing by Parent or any of its Subsidiaries for inclusion in such Company Reports filed after the date hereof.
(bii) The Company is in compliance in all material respects with the applicable listing and corporate governance rules and regulations of Nasdaqthe NYSE. For purposes of this Agreement, the term “Affiliate” when used with respect to any party shall mean any Person who is an “affiliate” of that party within the meaning of Rule 405 promulgated under the Securities Act.
(ciii) The Company maintains disclosure controls and procedures required by Rule 13a-15 or 15d-15 under the Exchange Act. Such The Company has evaluated the effectiveness of the Company’s disclosure controls and procedures are designed to ensure that information required to be disclosed by the Company in its filings with the SEC under the Exchange Act is recorded and reported on a timely basis and, to the individuals responsible for extent required by applicable Law, presented in any applicable Company Report or any amendment thereto its conclusions about the preparation effectiveness of the Company’s filings with disclosure controls and procedures as of the SEC under end of the Exchange Actperiod covered by such Report or amendment based on such evaluation. The Company maintains internal control over financial reporting (as defined in Rule 13a-15 or 15d-15, as applicable, under the Exchange Act). Such The Company has evaluated the effectiveness of the Company’s internal control over financial reporting is designed and, to provide reasonable assurance regarding the reliability extent required by applicable Law, presented in any applicable Company Report or any amendment thereto its conclusions about the effectiveness of the internal control over financial reporting and as of the preparation end of financial statements for external purposes in accordance with GAAPthe period covered by such Report or amendment based on such evaluation. The Company has disclosed, based on the most recent evaluation of its Chief Executive Officer chief executive officer and its Chief Financial Officer chief financial officer prior to the date of this Agreementhereof, to the Company’s auditors and the audit committee of the Company’s Board board of Directors directors (xA) any significant deficiencies and material weaknesses in the design or operation of its internal controls over financial reporting that are reasonably likely expected to adversely affect the Company’s ability to record, process, summarize and report financial information and has identified for the Company’s auditors and audit committee of the Company’s board of directors any material weaknesses in internal control over financial reporting and (yB) any fraud, whether or not material, that involves management or other employees who have a significant role in the Company’s internal control over financial reporting. The Company has made available prior to the date of this Agreement to Parent (Ix) either materials relating to or a summary of any such disclosure of matters described in clauses (x) or (y) in the preceding sentence made by management of to the Company to its Company’s auditors and audit committee on or after since the Applicable Date and prior to the date of this Agreement and (IIy) any material communication on or after since the Applicable Date and prior to the date of this Agreement made by management of or the Company or its Company’s auditors to the audit committee as required or contemplated by the listing standards of Nasdaqthe NYSE, the audit committee’s charter or professional standards of the Public Company Accounting Oversight Board. Since the Applicable Date and prior to the date of this AgreementDate, no material complaints from any source regarding a material violation of accounting proceduresaccounting, internal accounting controls or auditing matters or compliance with Law, including from Company Employees regarding questionable accounting, auditing or legal compliance matters have, to the Knowledge of the Company, have been received by the Company. The Company has made available to Parent a summary of all complaints or concerns relating to other matters made since the Applicable Date through the Company’s whistleblower hot line or equivalent system for receipt of employee concerns regarding possible violations of Law. No attorney representing the Company or any of its Subsidiaries, whether or not employed by the Company or any of its Subsidiaries, has reported evidence of a violation of securities Laws, breach of fiduciary duty or similar violation by the Company or any of its officers, directors, employees or agents to the Company’s chief legal officer, audit committee (or other committee designated for the purpose) of the board of directors or the board of directors pursuant to the rules adopted pursuant to Section 307 of the Xxxxxxxx-Xxxxx Act or any Company policy contemplating such reporting, including in instances not required by those rules.
(div) Each of the consolidated balance sheets included in or incorporated by reference into the Company Reports (including the related notes and schedules) fairly presents presents, or, in the case of Company Reports filed after the date of this Agreementhereof, will fairly present, in each case, present in all material respects, respects the consolidated financial position of the Company and its Subsidiaries, consolidated Subsidiaries as of the its date of such balance sheet, and each of the consolidated statements of operationsincome, cash flows and changes in stockholders’ shareholders equity (deficit) and cash flows included in or incorporated by reference into the Company Reports (including any related notes and schedules) fairly presents, or, or in the case of Company Reports filed after the date of this Agreementhereof, will fairly present, in each case, present in all material respects, respects the results of operations, retained earnings (loss) and changes in financial position, as the case may be, of the Company and its consolidated Subsidiaries for the periods set forth therein (subject, in the case of unaudited statements, to notes and normal year-end audit adjustments that are not or will not be material in amount or effect), in each case in accordance with GAAP (except, in the case of unaudited statements, as permitted by Form 10-Q) consistently applied during the periods involved, except as may be noted therein or in the notes theretotherein.
(e) Neither the Company nor any of its Subsidiaries has incurred any Indebtedness, or issued or sold any debt securities or rights to acquire any debt security of the Company or any of its Subsidiaries, the terms of which, or the terms of any instrument under which such Indebtedness, debt securities or rights were issued, requires the public listing of such Indebtedness, debt securities or rights or the maintenance by the Company or any of its Subsidiaries of registration under the Exchange Act.
Appears in 3 contracts
Samples: Merger Agreement (Banta Corp), Merger Agreement (Banta Corp), Merger Agreement (RR Donnelley & Sons Co)
Company Reports; Financial Statements. (ai) The Company has filed or furnished, as applicable, on a timely basis, basis all forms, statements, certifications, reports and documents required to be filed or furnished by it with or to the SEC pursuant to Securities and Exchange Commission (the “SEC”) under the Securities Exchange Act of 1934, as amended (the “Exchange Act”) or the Securities Act of 1933, as amended (the “Securities Act”) since June 30April 5, 2014 2006 (the “Applicable Date”) (the ). All such forms, statements, reports and documents filed with or furnished to the SEC since the Applicable Date and those filed with or furnished to the SEC subsequent to the date of this Agreement, in each case including any amendments thereto, are referred to as amended, the “Company Reports”). Each of the Company Reports, at the time of its filing (except as and to the extent such Company Report has been amended, modified or being furnished superseded in any subsequent Company Report filed prior to the date of this Agreement) complied or, if not yet filed or furnishedfiled, will comply in all material respects with the applicable requirements of the Securities Act, the Exchange Act and the XxxxxxxxSxxxxxxx-Xxxxx Act of 2002 (the “XxxxxxxxSxxxxxxx-Xxxxx Act”), and any rules and regulations promulgated thereunder applicable to the Company Reports. As of their respective dates (orexcept as and to the extent such Company Report has been amended, if amended modified or superseded in any subsequent Company Report filed prior to the date of this Agreement, in which case as of the date of such amendment, modification or superseding filing), the Company Reports did not, and any Company Reports filed with or furnished to the SEC subsequent to the date of this Agreement hereof will not, contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements made therein, in light of the circumstances in under which they were made, not misleading.
(bii) The Company is in compliance in all material respects with the applicable listing and corporate governance rules and regulations of Nasdaqthe NASDAQ. Except as permitted by the Exchange Act or rules of the SEC, since the Applicable Date, neither the Company nor any of its Affiliates has made, arranged or modified (in any material way) any extensions of credit in the form of a personal loan to any executive officer or director of the Company. For purposes of this Agreement, the term “Affiliate” when used with respect to any party shall mean any Person who is an “affiliate” of that party within the meaning of Rule 405 promulgated under the Securities Act.
(ciii) The Company maintains “disclosure controls and procedures required by Rule 13a-15 procedures” as defined in Rules 13a-15(e) or 15d-15 under 15d-15(e) of the Exchange Act. Such disclosure controls and procedures are designed to ensure that (A) information required to be disclosed by the Company in its filings with the SEC reports that it files or submits under the Exchange Act is recorded recorded, processed, summarized and reported on a timely basis to the individuals responsible for the preparation of such reports within the time periods specified in the rules and forms of the SEC, and (B) all such information is accumulated and communicated to the Company’s filings with management as appropriate to allow timely decisions regarding required disclosure and to make the SEC certifications of the principal executive officer and principal financial officer of the Company required under the Exchange ActAct with respect to such reports. The Company maintains internal control over financial reporting (as defined in Rule 13a-15 or 15d-15, as applicable, under the Exchange Act). Such internal control over financial reporting is designed effective in all material respects to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with United States generally accepted accounting principles (“GAAP”) and includes policies and procedures that (x) pertain to the maintenance of records that in reasonable detail accurately and fairly reflect the transactions and dispositions of the asset of the Company, (y) provide reasonable assurance that transactions are recorded as necessary to permit preparation of financial statements in accordance with GAAP, and that receipts and expenditures of the Company are being made in accordance with authorizations of management and directors of the Company, and (z) provide reasonable assurance regarding prevention or timely detection of unauthorized acquisition, use or disposition of the Company’s assets that could have a material effect on its financial statements. The Company has disclosed, based on the most recent evaluation of its Chief Executive Officer and its Chief Financial Officer prior to the date of this Agreementhereof, to the Company’s auditors and the audit committee of the Company’s Board board of Directors directors (xi) any significant deficiencies and material weaknesses in the design or operation of its internal controls control over financial reporting that are reasonably likely to adversely affect the Company’s ability to record, process, summarize and report financial information and has identified for the Company’s auditors and the audit committee of the Company’s board of directors any material weaknesses in internal control over financial reporting and (yii) any fraud, whether or not material, that involves management or other employees who have a significant role in the Company’s internal control over financial reporting. The Company has made available prior to the date of this Agreement to Parent (IA) either materials relating to or a summary of any such disclosure of matters described in clauses (x) or (y) in the preceding sentence made by management of to the Company to its Company’s auditors and the audit committee on or after since the Applicable Date, and (B) any communication since the Applicable Date and prior to the date of this Agreement and (II) any material communication on or after the Applicable Date and prior to the date of this Agreement made by management of or the Company or its Company’s auditors to the audit committee as required or contemplated by the listing standards of Nasdaqthe NASDAQ, the audit committee’s charter or professional standards of the Public Company Accounting Oversight Board. Since the Applicable Date, no material complaints from any source regarding accounting, internal accounting controls or auditing matters, and no concerns from Company employees regarding questionable accounting or auditing matters, have been received by the Company. The Company has made available to Parent a summary of all such material complaints or concerns made since the Applicable Date through the Company’s whistleblower hot-line or equivalent system maintained by the Company for receipt of employee concerns regarding possible violations of Law. No attorney who represents the Company on an ongoing and material basis, whether or not employed by the Company, has reported evidence of a violation of securities Laws, breach of fiduciary duty or similar violation by the Company or any of its officers, directors, employees or agents to the Company’s chief legal officer, any committee of the board of directors or the board of directors pursuant to rules adopted under Section 307 of the Sxxxxxxx-Xxxxx Act or any Company policy contemplating such reporting, including in instances not required by those rules.
(iv) (x) As amended, supplemented or corrected by Company Reports filed prior to the date of this Agreement, no complaints from any source regarding a material violation of accounting procedures, internal accounting controls or auditing matters or compliance with Law, including from Company Employees regarding questionable accounting, auditing or legal compliance matters have, to the Knowledge of the Company, been received by the Company.
(d) Each each of the consolidated balance sheets included in or incorporated by reference into the Company Reports (including the related notes and schedules) fairly presents in all material respects, or, (y) in the case of Company Reports filed after the date of this Agreementhereof, will fairly present, in each case, present in all material respects, in each case of (x) and (y), the consolidated financial position of the Company and its Subsidiaries, as of the its date of such balance sheet, and each of the consolidated statements of operationsincome, cash flows and changes in stockholdersshareholders’ equity (deficit) and cash flows included in (or incorporated by reference into into) the Company Reports (including any related notes and schedules) fairly presentspresents in all material respects, or, in the case of Company Reports filed after the date of this Agreementhereof, will fairly present, in each case, present in all material respects, respects the results of operations, retained earnings (loss) and changes in financial position, as the case may be, of the Company and its Subsidiaries for the periods set forth therein (subject, in the case of unaudited statements, to notes and normal year-end audit adjustments that are not or will not be material in amount or effect), in each case in accordance with GAAP consistently applied during the periods involved, except as may be noted therein or in the notes theretotherein.
(e) Neither the Company nor any of its Subsidiaries has incurred any Indebtedness, or issued or sold any debt securities or rights to acquire any debt security of the Company or any of its Subsidiaries, the terms of which, or the terms of any instrument under which such Indebtedness, debt securities or rights were issued, requires the public listing of such Indebtedness, debt securities or rights or the maintenance by the Company or any of its Subsidiaries of registration under the Exchange Act.
Appears in 3 contracts
Samples: Merger Agreement (Visicu Inc), Merger Agreement (Cardinal Health Partners Lp), Merger Agreement (Sterling Venture Partners L P)
Company Reports; Financial Statements. (a) The Company has filed delivered or furnishedmade available to Parent each registration statement, as applicablereport, on a timely basis, all forms, statements, certifications, reports and documents required to be filed proxy statement or furnished information statement prepared by it with or to since December 31, 1996 (the SEC pursuant to "Audit Date"), including (i) the Exchange Act or Company's Annual Report on Form 10-K for the Securities Act since year ended December 31, 1996 and (ii) the Company's Quarterly Reports on Form 10-Q for the periods ended March 31, 1997, June 30, 2014 1997 and September 30, 1997, each in the form (including exhibits, annexes and any amendments thereto) filed with the Securities and Exchange Commission (the “Applicable Date”"SEC") (the formscollectively, statements, including any such reports and documents filed with or furnished to the SEC since the Applicable Date and those filed with or furnished to the SEC subsequent to the date of this Agreement, in each case as amendedhereof, the “"Company Reports”"). Each of the Company Reports, at the time of its filing or being furnished complied or, if not yet filed or furnished, will comply in all material respects with the applicable requirements of the Securities Act, the Exchange Act and the Xxxxxxxx-Xxxxx Act of 2002 (the “Xxxxxxxx-Xxxxx Act”), and any rules and regulations promulgated thereunder applicable to the Company Reports. As of their respective dates (or, if amended prior to the date of this Agreement, as of the date of such amendment)dates, the Company Reports did not, and any Company Reports filed with or furnished to the SEC subsequent to the date of this Agreement hereof will not, contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements made therein, in light of the circumstances in which they were made, not misleading.
(b) The Company is in compliance in all material respects with the applicable listing and corporate governance rules and regulations of Nasdaq.
(c) The Company maintains disclosure controls and procedures required by Rule 13a-15 or 15d-15 under the Exchange Act. Such disclosure controls and procedures are designed to ensure that information required to be disclosed by the Company in its filings with the SEC under the Exchange Act is recorded and reported on a timely basis to the individuals responsible for the preparation of the Company’s filings with the SEC under the Exchange Act. The Company maintains internal control over financial reporting (as defined in Rule 13a-15 or 15d-15, as applicable, under the Exchange Act). Such internal control over financial reporting is designed to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with GAAP. The Company has disclosed, based on the most recent evaluation of its Chief Executive Officer and its Chief Financial Officer prior to the date of this Agreement, to the Company’s auditors and the audit committee of the Company’s Board of Directors (x) any significant deficiencies and material weaknesses in the design or operation of its internal controls over financial reporting that are reasonably likely to adversely affect the Company’s ability to record, process, summarize and report financial information and (y) any fraud, whether or not material, that involves management or other employees who have a significant role in the Company’s internal control over financial reporting. The Company has made available prior to the date of this Agreement to Parent (I) either materials relating to or a summary of any disclosure of matters described in clauses (x) or (y) in the preceding sentence made by management of the Company to its auditors and audit committee on or after the Applicable Date and prior to the date of this Agreement and (II) any material communication on or after the Applicable Date and prior to the date of this Agreement made by management of the Company or its auditors to the audit committee as required by the listing standards of Nasdaq, the audit committee’s charter or professional standards of the Public Company Accounting Oversight Board. Since the Applicable Date and prior to the date of this Agreement, no complaints from any source regarding a material violation of accounting procedures, internal accounting controls or auditing matters or compliance with Law, including from Company Employees regarding questionable accounting, auditing or legal compliance matters have, to the Knowledge of the Company, been received by the Company.
(d) Each of the consolidated balance sheets included in or incorporated by reference into the Company Reports (including the related notes and schedules) fairly presents orpresents, in the case of Company Reports filed after the date of this Agreement, or will fairly present, in each case, in all material respects, the consolidated financial position of the Company and its Subsidiaries, Subsidiaries as of the its date of such balance sheet, and each of the consolidated statements of operations, cash flows income and of changes in stockholders’ equity (deficit) financial position included in or incorporated by reference into the Company Reports (including any related notes and schedules) fairly presents, or, in the case of Company Reports filed after the date of this Agreement, or will fairly present, in each case, in all material respects, the consolidated results of operations, retained earnings (loss) and changes in financial position, as the case may be, of the Company and its Subsidiaries for the periods set forth therein (subject, in the case of unaudited statements, to notes and normal year-end audit adjustments that are not or will not be material in amount or effect), in each case in accordance with GAAP generally accepted accounting principles ("GAAP") consistently applied during the periods involved, except as may be noted therein therein. The Company has delivered or in made available to Parent true and complete copies of the notes thereto.
(e) Neither the Company nor any annual and quarterly statements of its Subsidiaries has incurred any Indebtedness, or issued or sold any debt securities or rights to acquire any debt security each of the Company Insurance Subsidiaries as filed with the applicable insurance regulatory authorities for the years ended December 31, 1994, 1995 and 1996 and the quarterly periods ended March 31, 1997, June 30, 1997 and September 30, 1997, including all exhibits, interrogatories, notes, schedules and any actuarial opinions, affirmations or certifications or other supporting documents filed in connection therewith (collectively, the "Company SAP Statements"). The Company SAP Statements were prepared in conformity with statutory accounting practices prescribed or permitted by the applicable insurance regulatory authority consistently applied for the periods covered thereby and present fairly the statutory financial position of such Company Insurance Subsidiaries as at the respective dates thereof and the results of operations of such Subsidiaries for the respective periods then ended. The Company SAP Statements complied in all material respects with all applicable laws, rules and regulations when filed, and no material deficiency has been asserted with respect to any Company SAP Statements by the applicable insurance regulatory body or any of its Subsidiaries, the terms of which, other governmental agency or the terms of any instrument under which such Indebtedness, debt securities or rights were issued, requires the public listing of such Indebtedness, debt securities or rights or the maintenance by body. The annual statutory balance sheets and income statements included in the Company SAP Statements have been audited by Ernst & Young LLP, and the Company has delivered or made available to Parent true and complete copies of all audit opinions related thereto. The Company has delivered or made available to Parent true and complete copies of all examination reports of insurance departments and any of its Subsidiaries of registration under insurance regulatory agencies since January 1, 1994 relating to the Exchange ActCompany Insurance Subsidiaries.
Appears in 3 contracts
Samples: Merger Agreement (Usf&g Corp), Merger Agreement (St Paul Companies Inc /Mn/), Merger Agreement (St Paul Companies Inc /Mn/)
Company Reports; Financial Statements. (ai) The Company has filed or furnished, as applicable, on a timely basis, all forms, statements, certifications, reports and documents required to be filed or furnished by it with or to the SEC pursuant to the Exchange Act or the Securities Act since June 30December 31, 2014 (the “Applicable Date”) (the forms, statements, reports and documents filed with or furnished to the SEC since the Applicable Date and those filed with or furnished to the SEC subsequent to the date of this Agreement, in each case as amended, the “Company Reports”). Each of the Company Reports, at the time of its filing or being furnished complied or, if not yet filed or furnished, will comply in all material respects with the applicable requirements of the Securities Act, the Exchange Act and the Xxxxxxxx-Xxxxx Act of 2002 (the “Xxxxxxxx-Xxxxx Act”), and any rules and regulations promulgated thereunder applicable to the Company Reports. As of their respective dates (or, if amended prior to the date of this Agreement, as of the date of such amendment), the Company Reports did not, and any Company Reports filed with or furnished to the SEC subsequent to the date of this Agreement will not, contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements made therein, in light of the circumstances in which they were made, not misleading.
(bii) The Company is in compliance in all material respects with the applicable listing and corporate governance rules and regulations of Nasdaqthe NYSE.
(ciii) The Company maintains disclosure controls and procedures required by Rule 13a-15 or 15d-15 under the Exchange Act. Such disclosure controls and procedures are designed to ensure that information required to be disclosed by the Company in its filings with the SEC under the Exchange Act is recorded and reported on a timely basis to the individuals responsible for the preparation of the Company’s filings with the SEC under the Exchange Act. The Company maintains internal control over financial reporting (as defined in Rule 13a-15 or 15d-15, as applicable, under the Exchange Act). Such internal control over financial reporting is designed to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with GAAP. The Company has disclosed, based on the most recent evaluation of its Chief Executive Officer and its Chief Financial Officer prior to the date of this Agreement, to the Company’s auditors and the audit committee of the Company’s Board of Directors (x) any significant deficiencies and material weaknesses in the design or operation of its internal controls over financial reporting that are reasonably likely to adversely affect the Company’s ability to record, process, summarize and report financial information and (y) any fraud, whether or not material, that involves management or other employees who have a significant role in the Company’s internal control over financial reporting. The Company has made available prior to the date of this Agreement to Parent (I) either materials relating to or a summary of any disclosure of matters described in clauses (x) or (y) in the preceding sentence made by management of the Company to its auditors and audit committee on or after the Applicable Date and prior to the date of this Agreement and (II) any material communication on or after the Applicable Date and prior to the date of this Agreement made by management of the Company or its auditors to the audit committee as required by the listing standards of Nasdaqthe NYSE, the audit committee’s charter or professional standards of the Public Company Accounting Oversight Board. Since the Applicable Date June 30, 2016 and prior to the date of this Agreement, no complaints from any source regarding a material violation of accounting procedures, internal accounting controls or auditing matters or compliance with Law, including from Company Employees regarding questionable accounting, auditing or legal compliance matters have, to the Knowledge of the Company, been received by the Company.
(div) Each of the consolidated balance sheets included in or incorporated by reference into the Company Reports (including the related notes and schedules) fairly presents or, in the case of Company Reports filed after the date of this Agreement, will fairly present, in each case, in all material respects, the consolidated financial position of the Company and its Subsidiaries, as of the date of such balance sheet, and each of the consolidated statements of operations, cash flows and changes in stockholders’ equity (deficit) included in or incorporated by reference into the Company Reports (including any related notes and schedules) fairly presents, or, in the case of Company Reports filed after the date of this Agreement, will fairly present, in each case, in all material respects, the results of operations, retained earnings (loss) and changes in financial position, as the case may be, of the Company and its Subsidiaries for the periods set forth therein (subject, in the case of unaudited statements, to notes and normal year-end audit adjustments that are not or will not be material in amount or effect), in each case in accordance with GAAP consistently applied during the periods involved, except as may be noted therein or in the notes thereto.
(ev) Neither the Company nor any of its Subsidiaries has incurred any Indebtedness, or issued or sold any debt securities or rights to acquire any debt security of the Company or any of its Subsidiaries, the terms of which, or the terms of any instrument under which such Indebtedness, debt securities or rights were issued, requires the public listing of such Indebtedness, debt securities or rights or the maintenance by the Company or any of its Subsidiaries of registration under the Exchange Act. As used in this Agreement, the term “Indebtedness” means, with respect to any Person, without duplication, all obligations or undertakings by such Person (i) for borrowed money (including deposits or advances of any kind to such Person); (ii) evidenced by bonds, debentures, notes or similar instruments; (iii) for capitalized leases or to pay the deferred and unpaid purchase price of property or equipment; (iv) pursuant to securitization or factoring programs or arrangements; (v) pursuant to guarantees and arrangements having the economic effect of a guarantee of any Indebtedness of any other Person (other than between or among any of Parent and its wholly owned Subsidiaries or between or among the Company and its wholly owned Subsidiaries); (vi) to maintain or cause to be maintained the financing or financial position of others; (vii) net cash payment obligations of such Person under swaps, options, derivatives and other hedging Contracts or arrangements that will be payable upon termination thereof (assuming termination on the date of determination) or (viii) letters of credit, bank guarantees, and other similar Contracts or arrangements entered into by or on behalf of such Person to the extent they have been drawn upon.
Appears in 3 contracts
Samples: Merger Agreement, Merger Agreement (At&t Inc.), Merger Agreement (Time Warner Inc.)
Company Reports; Financial Statements. (ai) The Company has filed or furnished, as applicable, on a timely basis, all forms, statements, certifications, reports and documents required to be filed or furnished by it with or to the SEC pursuant to the Exchange Act or the Securities Act since June 30December 31, 2014 2016 (the “Applicable Date”) (the forms, statements, reports reports, certifications and documents filed with or furnished to the SEC since the Applicable Date and those filed with or furnished to the SEC subsequent to the date of this AgreementSEC, in each case as amendedincluding any amendments thereto, the “Company Reports”). Each Since the Applicable Date each of the Company Reports, at the time of its filing or being furnished complied or, if not yet filed or furnished, will comply in all material respects with the applicable requirements of the Securities Act, the Exchange Act and the Xxxxxxxx-Xxxxx Act of 2002 (the “Xxxxxxxx-Xxxxx Act”), and any rules and regulations promulgated thereunder applicable to the Company Reports. As of their respective dates (or, if amended prior to the date of this Agreement, as of the date of such amendment), the Company Reports filed or furnished to the SEC since the Applicable Date did not, and any Company Reports filed with or furnished to the SEC subsequent to the date of this Agreement will not, contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements made therein, in light of the circumstances in which they were made, not misleading.
, except for any statements with respect to information supplied by (bor which will be supplied by) The Company is in compliance in all material respects with the applicable listing and corporate governance rules and regulations or on behalf of Nasdaq.
(c) The Company maintains disclosure controls and procedures required by Rule 13a-15 or 15d-15 under the Exchange Act. Such disclosure controls and procedures are designed Parent, as to ensure that information required to be disclosed by which the Company in its filings with the SEC under the Exchange Act is recorded and reported on a timely basis to the individuals responsible for the preparation makes no representation or warranty. As of the Company’s filings with the SEC under the Exchange Act. The Company maintains internal control over financial reporting (as defined in Rule 13a-15 or 15d-15, as applicable, under the Exchange Act). Such internal control over financial reporting is designed to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with GAAP. The Company has disclosed, based on the most recent evaluation of its Chief Executive Officer and its Chief Financial Officer prior to the date of this Agreement, there are no outstanding comments from, or unresolved issues raised by, the staff of the SEC with respect to the Company’s auditors and the audit committee Company Reports. As of the Company’s Board of Directors (x) any significant deficiencies and material weaknesses in the design or operation of its internal controls over financial reporting that are reasonably likely to adversely affect the Company’s ability to record, process, summarize and report financial information and (y) any fraud, whether or not material, that involves management or other employees who have a significant role in the Company’s internal control over financial reporting. The Company has made available prior to the date of this Agreement to Parent (I) either materials relating to or a summary of any disclosure of matters described in clauses (x) or (y) in the preceding sentence made by management of the Company to its auditors and audit committee on or after the Applicable Date and prior to the date of this Agreement and (II) any material communication on or after the Applicable Date and prior to the date of this Agreement made by management of the Company or its auditors to the audit committee as required by the listing standards of Nasdaq, the audit committee’s charter or professional standards of the Public Company Accounting Oversight Board. Since the Applicable Date and prior to the date of this Agreement, no complaints enforcement action by the staff of the SEC has been initiated against the Company relating to disclosure contained or omitted from any source regarding a material violation of accounting procedures, internal accounting controls or auditing matters or compliance with Law, including from Company Employees regarding questionable accounting, auditing or legal compliance matters have, to the Knowledge of the Company, been received by the CompanyReport.
(dii) Each of the consolidated balance sheets included in or incorporated by reference into the Company Reports (including the related notes and schedules) fairly presents or, in since the case of Company Reports filed after the date of this Agreement, will fairly present, in each case, in all material respects, the consolidated financial position of the Company and its Subsidiaries, as of the date of such balance sheet, and each of the consolidated statements of operations, cash flows and changes in stockholders’ equity (deficit) included in or incorporated by reference into the Company Reports (including any related notes and schedules) Applicable Date fairly presents, or, in the case of Company Reports filed after the date of this Agreement, will fairly presentpresent the consolidated financial position of the Company and its consolidated Subsidiaries as of its date and each of the consolidated statements of income, shareholders’ equity and cash flows included in each caseor incorporated by reference into the Company Reports since the Applicable Date (including any related notes and schedules) fairly presents, or in all material respectsthe case of Company Reports filed after the date of this Agreement, will fairly present the results of operations, retained earnings (loss) and changes in financial position, as the case may be, of the Company and its Subsidiaries such companies for the periods set forth therein (subject, in the case of unaudited statements, to notes and normal year-end audit adjustments that are not or will not be material in amount or effectadjustments), in each case in accordance with GAAP consistently applied during the periods involved, except as may be noted therein or in the notes theretotherein.
(e) Neither the Company nor any of its Subsidiaries has incurred any Indebtedness, or issued or sold any debt securities or rights to acquire any debt security of the Company or any of its Subsidiaries, the terms of which, or the terms of any instrument under which such Indebtedness, debt securities or rights were issued, requires the public listing of such Indebtedness, debt securities or rights or the maintenance by the Company or any of its Subsidiaries of registration under the Exchange Act.
Appears in 3 contracts
Samples: Merger Agreement (Cheniere Energy Inc), Merger Agreement (Cheniere Energy Inc), Merger Agreement (Cheniere Energy Partners LP Holdings, LLC)
Company Reports; Financial Statements. (ai) The Since October 1, 2008, the Company has filed or furnished, as applicable, on a timely basis, basis all forms, statements, certifications, reports and documents required to be filed or furnished by it with or to the SEC pursuant to the Exchange Act or the Securities Act since June 30, 2014 (the “Applicable Date”) (the forms, statements, reports and documents filed with or furnished to the SEC since the Applicable Date October 1, 2008 and those filed with or furnished to the SEC subsequent to the date of this Agreementhereof, in each case as amendedincluding any amendments thereto, the “Company Reports”). Each of the Company Reports, at the time of its filing or being furnished complied or, if not yet filed or furnished, will comply comply, in all material respects with the applicable requirements of the Securities Act, the Exchange Act and the Xxxxxxxx-Xxxxx Act of 2002 (the “Xxxxxxxx-Xxxxx Act”), and any rules and regulations promulgated thereunder applicable to the Company Reports. As of their respective dates (or, if amended prior to the date of this Agreementamended, as of the date of such amendment), the Company Reports did not, and any Company Reports filed with or furnished to the SEC subsequent to the date of this Agreement hereof will not, contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements made therein, in light of the circumstances in which they were made, not misleading.
(bii) The Company is in compliance in all material respects with the applicable listing and corporate governance rules and regulations of NasdaqNASDAQ and the Xxxxxxxx-Xxxxx Act.
(ciii) The Company maintains disclosure controls and procedures required by Rule 13a-15 or 15d-15 under the Exchange Act. Such disclosure controls and procedures are designed to ensure that information required to be disclosed by the Company in its filings with the SEC under the Exchange Act is recorded and reported on a timely basis to the individuals responsible for the preparation of the Company’s filings with the SEC under the Exchange Act. The Company maintains system of internal control over financial reporting (as defined in Rule 13a-15 Rules 13a-15(f) and 15d-15(f) of the Exchange Act) is effective in providing reasonable assurance (A) that the Company maintains records that in reasonable detail accurately and fairly reflect its transactions and dispositions of assets, (B) that transactions are recorded as necessary to permit preparation of financial statements in conformity with GAAP, (C) that transactions are executed only in accordance with authorizations of management and the Company Board and (D) regarding prevention or 15d-15timely detection of the unauthorized acquisition, use or disposition of the Company’s assets. The Company’s “disclosure controls and procedures” (as applicable, defined in Rules 13a-15(e) and 15d-15(e) under the Exchange Act). Such internal control over financial reporting is ) are reasonably designed to provide reasonable assurance ensure that all information (both financial and non-financial) required to be disclosed by the Company in the reports that it files, furnishes or submits under the Exchange Act is recorded, processed, summarized and reported within the time periods specified in the rules and forms of the SEC, 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 reliability certifications of the chief executive officer and chief financial reporting and officer of the preparation of financial statements for external purposes in accordance Company required under the Exchange Act with GAAPrespect to such reports. The Company has disclosed, based on the most recent evaluation of its Chief Executive Officer chief executive officer and its Chief Financial Officer chief financial officer prior to the date of this Agreementhereof, to the Company’s auditors and the audit committee of the Company’s Company Board of Directors (xA) any “significant deficiencies and deficiencies” or “material weaknesses weaknesses” in the design or operation of its internal controls over financial reporting that are would reasonably likely be expected to adversely affect the Company’s ability to record, process, summarize and report financial information and has identified for the Company’s auditors and audit committee of the Company Board any material weaknesses in internal control over financial reporting and (yB) any fraud, whether or not material, that involves management or other employees who have a significant role in the Company’s internal control over financial reporting. The Company has made available prior to the date of this Agreement to Parent (Ix) either materials relating to or a summary of any such disclosure of matters described in clauses (x) or (y) in the preceding sentence made by management of to the Company to its Company’s auditors and audit committee on or after the Applicable Date and prior to the date of this Agreement since October 1, 2008 and (IIy) any material communication on or after the Applicable Date and prior to the date of this Agreement since October 1, 2008 made by management of or the Company or its Company’s auditors to the audit committee as required or contemplated by the listing standards of NasdaqNASDAQ, the audit committee’s charter or professional standards of the Public Company Accounting Oversight Board. Since the Applicable Date and prior to the date For purposes of this Agreement, the terms “significant deficiency” and “material weakness” shall have the meanings assigned to them by the Public Company Accounting Oversight Board Interim Standard AU 325 parts 2 and 3, as in effect on the date hereof. Since October 1, 2008, no material complaints from any source regarding a material violation of accounting proceduresaccounting, internal accounting controls or auditing matters or compliance with Lawmatters, including and no concerns from Company Employees employees regarding questionable accountingaccounting or auditing matters, auditing or legal compliance matters have, to the Knowledge of the Company, have been received by the Company. The Company has made available to Parent a summary of all material complaints or concerns relating to other matters made since October 1, 2008 through the Company’s whistleblower hot-line or equivalent system for receipt of employee concerns regarding possible violations of Law. No attorney representing the Company or its Subsidiary, whether or not employed by the Company or its Subsidiary, has reported evidence of a violation of Securities Laws, breach of fiduciary duty or similar violation by the Company or any of its officers, directors, employees or agents to the Company’s chief legal officer, audit committee (or other committee designated for the purpose) of the Company Board or the Company Board pursuant to the rules adopted pursuant to Section 307 of the Xxxxxxxx-Xxxxx Act or any Company policy contemplating such reporting, including in instances not required by those rules.
(div) Neither the Company nor its Subsidiary is a party to, nor has any commitment to become a party to, any joint venture, off-balance sheet partnership or any similar Contract (including any Contract or arrangement relating to any transaction or relationship between or among the Company, on the one hand, and any unconsolidated Affiliate, including any structured finance, special purpose or limited purpose entity or Person, on the other hand), or any “off-balance sheet arrangements” (as defined in Item 303(a) of Regulation S-K promulgated by the SEC), where the result, purpose or intended effect of such Contract is to avoid disclosure of any material transaction involving, or material liabilities of, the Company in its published financial statements or other Company Reports.
(v) Each of the consolidated balance sheets included in or incorporated by reference into the Company Reports (including the related notes and schedules) fairly presents or, in the case of Company Reports filed after the date of this Agreementhereof, will fairly present, in each case, in all material respects, the consolidated financial position of the Company and its Subsidiaries, as of the its date of such balance sheet, and each of the consolidated statements of operationsincome, changes in shareholders’ equity and cash flows and changes in stockholders’ equity (deficit) included in or incorporated by reference into the Company Reports (including any related notes and schedules) fairly presents, presents or, in the case of Company Reports filed after the date of this Agreementhereof, will fairly present, in each case, in all material respects, the results of operations, retained earnings (loss) and changes in financial position, as the case may be, of the Company and its Subsidiaries for the periods set forth therein (subject, in the case of unaudited statements, to notes and normal year-end audit adjustments that are not or will not be material in amount or effect), in each case ; in accordance with GAAP U.S. generally accepted accounting principles (“GAAP”) consistently applied during the periods involved, except as may be noted therein therein.
(vi) Except for (A) those liabilities that are reflected or reserved against on the audited consolidated balance sheet of the Company and its Subsidiary as of September 30, 2011 (the “Most Recent Balance Sheet”), (B) liabilities incurred in the ordinary course of business consistent with past practice since the date of the Most Recent Balance Sheet, and (C) obligations incurred pursuant to this Agreement, neither the Company nor its Subsidiary has incurred any liability of the type required to be set forth on a balance sheet prepared in accordance with GAAP that, individually or in the notes thereto.
(e) Neither the Company nor any of its Subsidiaries aggregate with other such liabilities, has incurred any Indebtednesshad, or issued or sold any debt securities or rights would reasonably be expected to acquire any debt security of the have a Company or any of its Subsidiaries, the terms of which, or the terms of any instrument under which such Indebtedness, debt securities or rights were issued, requires the public listing of such Indebtedness, debt securities or rights or the maintenance by the Company or any of its Subsidiaries of registration under the Exchange ActMaterial Adverse Effect.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Gilead Sciences Inc), Merger Agreement (Pharmasset Inc)
Company Reports; Financial Statements. (a) The Company has and its Subsidiaries have filed or furnished, as applicable, on a timely basis, all forms, statements, certifications, reports and documents required to be filed or furnished by it with or to the SEC Securities and Exchange Commission (the “SEC”) pursuant to the Exchange Act or the Securities Act since June 30January 1, 2014 (the “Applicable Date”) 2008 (the forms, statements, certifications, reports and documents filed with or furnished to the SEC since the Applicable Date January 1, 2008 and those filed with or furnished to the SEC subsequent to the date of this Agreementhereof, in each case as amendedincluding any amendments thereto, the “Company Reports”). Each of the Company Reports, at the time of its filing or being furnished complied or, if not yet filed or furnished, will comply in all material respects with the applicable requirements of the Securities Act, the Exchange Act and the Xxxxxxxx-Xxxxx Act of 2002 1933 (the “Xxxxxxxx-Xxxxx Securities Act”), ) and the Securities Exchange Act of 1934 (the “Exchange Act”) and any rules and regulations promulgated thereunder applicable to the Company Reports. As of their respective dates (or, if amended prior to the date of this Agreementhereof, as of the date of such amendment), the Company Reports did not, and any Company Reports filed with or furnished to the SEC subsequent to the date of this Agreement hereof will not, contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements made therein, in light of the circumstances in which they were made, not misleading.
(b) The Company is in compliance in all material respects with the applicable listing and corporate governance rules and regulations of Nasdaq.
(c) The Company maintains disclosure controls and procedures required by Rule 13a-15 or 15d-15 under the Exchange Act. Such disclosure controls and procedures are designed to ensure that information required to be disclosed by the Company in its filings with the SEC under the Exchange Act is recorded and reported on a timely basis to the individuals responsible for the preparation of the Company’s filings with the SEC under the Exchange Act. The Company maintains internal control over financial reporting (as defined in Rule 13a-15 or 15d-15, as applicable, under the Exchange Act). Such internal control over financial reporting is designed to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with GAAP. The Company has disclosedmade available to Parent copies of all material correspondence between the SEC and the Company since January 1, based on the most recent evaluation 2008. As of its Chief Executive Officer and its Chief Financial Officer prior to the date of this Agreement, there are no material outstanding or unresolved comments received from the SEC staff with respect to the Company’s auditors and the audit committee Company Reports. Except for US Oncology, Inc., none of the Company’s Board of Directors (x) Subsidiaries is or has been required to file any significant deficiencies and material weaknesses in the design or operation of its internal controls over financial reporting that are reasonably likely to adversely affect the Company’s ability to recordform, process, summarize and report financial information and (y) any fraud, whether or not material, that involves management or other employees who have a significant role in document with the Company’s internal control over financial reporting. The Company has made available prior to the date of this Agreement to Parent (I) either materials relating to SEC or a summary of any disclosure of matters described in clauses (x) securities exchange or (y) in the preceding sentence made by management of the Company to its auditors and audit committee on or after the Applicable Date and prior to the date of this Agreement and (II) any material communication on or after the Applicable Date and prior to the date of this Agreement made by management of the Company or its auditors to the audit committee as required by the listing standards of Nasdaq, the audit committee’s charter or professional standards of the Public Company Accounting Oversight Board. Since the Applicable Date and prior to the date of this Agreement, no complaints from any source regarding a material violation of accounting procedures, internal accounting controls or auditing matters or compliance with Law, including from Company Employees regarding questionable accounting, auditing or legal compliance matters have, to the Knowledge of the Company, been received by the Companyquotation service.
(db) Each of the consolidated balance sheets included Financial Statements (including in or incorporated by reference into all cases the notes and schedules thereto, if any) (i) was prepared in accordance with the books and records of the Company Reports and its Subsidiaries; (including ii) was prepared in accordance with GAAP consistently applied throughout the related notes periods covered thereby; and schedules(iii) fairly presents or, in the case of Company Reports filed after the date of this Agreement, will fairly present, in each casefairly, in all material respects, the consolidated financial position of the Company and its Subsidiaries, Subsidiaries as of the date of at such balance sheet, dates and each of the consolidated statements of operations, cash flows and changes in stockholders’ equity (deficit) included in or incorporated by reference into the Company Reports (including any related notes and schedules) fairly presents, or, in the case of Company Reports filed after the date of this Agreement, will fairly present, in each case, in all material respects, the results of operations, retained earnings (loss) stockholders’ equity and changes in financial position, as the case may be, cash flows of the Company and its Subsidiaries for the such periods set forth therein (subjecton a consolidated basis, in the case of unaudited statements, subject to notes and normal year-end audit adjustments that are not or will not adjustments, none of which would be material in amount or effect)material, in each case in accordance with GAAP consistently applied during the periods involved, except as may be noted therein individually or in the notes theretoaggregate, and the absence of notes. Since January 1, 2010, there has been no change in any accounting policies, principles, methods or practices, including any change with respect to reserves (whether for bad debts, contingent liabilities or otherwise), of the Company. Since January 1, 2005, no audit firm has ever declined or indicated its inability to issue an opinion with respect to any financial statements of the Company.
(ec) Neither Since January 1, 2008, the Company nor any and each of its Subsidiaries has incurred any Indebtedness, or issued or sold any debt securities or rights had in place “disclosure controls and procedures” (as defined in Rules 13a-15(e) and 15d-15(e) promulgated under the Exchange Act) reasonably designed and maintained to acquire any debt security of the Company or any of its Subsidiaries, the terms of which, or the terms of any instrument under which such Indebtedness, debt securities or rights were issued, requires the public listing of such Indebtedness, debt securities or rights or the maintenance ensure that all information (both financial and non-financial) required to be disclosed by the Company or any of its Subsidiaries of registration in the reports that it files or submits to the SEC under the Exchange ActAct is recorded, processed, summarized and reported within the time periods specified in the rules and forms of the SEC and that such information is accumulated and communicated to the Company’s or such Subsidiary’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 or such Subsidiary required under the Exchange Act with respect to such reports. The Company and each of its Subsidiaries (i) make and keep accurate books and records that fairly reflect the transactions and dispositions of assets of the Company or such Subsidiary, as the case may be, and (ii) maintain internal accounting controls which provide reasonable assurance that (a) transactions are recorded as necessary to permit preparation of their respective financial statements in conformity with GAAP, (b) receipts and expenditures are made only in accordance with general or specific authorizations of management and directors of the Company or such Subsidiary, (c) access to their respective assets is permitted only in accordance with general or specific authorizations of management and directors of the Company or such Subsidiary and (d) the reported accounting for their respective assets and liabilities is compared with existing assets and liabilities at reasonable intervals.
(d) The items marked with an asterisk on Section 2.4(d) of the Company Disclosure Schedule are true and correct.
Appears in 2 contracts
Samples: Merger Agreement (US Oncology Holdings, Inc.), Merger Agreement (McKesson Corp)
Company Reports; Financial Statements. (ai) The Company has filed or furnished, as applicable, on a timely basis, all forms, statements, certifications, reports and documents required to be filed or furnished by it with or to the SEC pursuant to the Securities Exchange Act of 1934, as amended (the “Exchange Act”), or the Securities Act of 1933, as amended (the “Securities Act”), since June 30January 1, 2014 2011 (the “Applicable Date”) (the forms, statements, reports and documents filed with or furnished to the SEC since the Applicable Date and those filed with or furnished subsequent to the SEC subsequent date of this Agreement, including any amendments thereto, the “Company Reports”). The Company has made available to Parent true, complete and unredacted copies of the Company Reports filed or furnished prior to the date of this Agreement, in each case as amended, to the “Company Reports”)extent not publicly filed in unredacted form. Each of the Company Reports, at the time of its filing or being furnished (or, if amended or superseded by a subsequent filing prior to the date of this Agreement, as of the date of the last such amendment or superseded filing), complied or, if not yet filed or furnished, will comply in all material respects with the applicable requirements of the Securities Act, the Exchange Act and the Xxxxxxxx-Xxxxx Act of 2002 (the “Xxxxxxxx-Xxxxx Act”), and any rules and regulations promulgated thereunder applicable to the Company Reports. As of their respective dates (or, if amended prior to the date of this Agreement or superseded by a subsequent filing prior to the date of this Agreement, as of the date of the last such amendmentamendment or superseded filing), the Company Reports did not, and any Company Reports filed with or furnished to the SEC subsequent to the date of this Agreement will not, contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements made therein, in light of the circumstances in which they were made, not misleading.
(bii) The Company is in compliance in all material respects with the applicable listing and corporate governance rules and regulations of Nasdaqthe NYSE. Except as permitted by the Exchange Act, including Sections 13(k)(2) and (3) or rules of the SEC, since the enactment of the Xxxxxxxx-Xxxxx Act, neither the Company nor any of its Affiliates has made, arranged or modified (in any material way) any extensions of credit in the form of a personal loan to any executive officer or director of the Company. For purposes of this Agreement, the term “Affiliate,” when used with respect to any party, shall mean any Person who is an “affiliate” of that party within the meaning of Rule 405 promulgated under the Securities Act.
(ciii) The Company maintains disclosure controls and procedures required by Rule 13a-15 or 15d-15 under the Exchange Act. Such disclosure controls and procedures are designed and maintained to ensure that information required to be disclosed by the Company in its filings with the SEC under the Exchange Act is recorded and reported on a timely basis to the individuals responsible for the preparation of the Company’s filings with the SEC under the Exchange Actand other public disclosure documents. The Company maintains internal control over financial reporting (as defined in Rule 13a-15 or 15d-15, as applicable, under the Exchange Act). Such internal control over financial reporting is designed to provide effective in providing reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with GAAP and includes policies and procedures that (i) pertain to the maintenance of records that in reasonable detail accurately and fairly reflect the transactions and dispositions of the assets of the Company, (ii) provide reasonable assurance that transactions are recorded as necessary to permit preparation of financial statements in accordance with GAAP, and that receipts and expenditures of the Company are being made only in accordance with authorizations of management and directors of the Company, and (iii) provide reasonable assurance regarding prevention or timely detection of unauthorized acquisition, use or disposition of the Company’s assets that could have a material effect on its financial statements. The Company has disclosed, based on the most recent evaluation of its Chief Executive Officer chief executive officer and its Chief Financial Officer chief financial officer prior to the date of this Agreement, to the Company’s auditors and the audit committee of the Company’s Board board of Directors directors (xA) any significant deficiencies and material weaknesses in the design or operation of its internal controls control over financial reporting that are reasonably likely to adversely affect the Company’s ability to record, process, summarize and report financial information and has identified for the Company’s auditors and audit committee of the Company’s board of directors any material weaknesses in internal control over financial reporting and (yB) any fraud, whether or not material, that involves management or other employees who have a significant role in the Company’s internal control over financial reporting. The Company has made available prior to To the date of this Agreement to Parent (I) either materials relating to or a summary of any disclosure of matters described in clauses (x) or (y) in the preceding sentence made by management knowledge of the Company to its auditors and audit committee on or after Company, since the Applicable Date and prior to the date of this Agreement and (II) any material communication on or after the Applicable Date and prior to the date of this Agreement made by management of the Company or its auditors to the audit committee as required by the listing standards of Nasdaq, the audit committee’s charter or professional standards of the Public Company Accounting Oversight Board. Since the Applicable Date and prior to the date of this AgreementDate, no material complaints from any source regarding a material violation of accounting proceduresaccounting, internal accounting controls or auditing matters or compliance with Law, including from Company Employees regarding questionable accounting, auditing or legal compliance matters have, to the Knowledge of the Company, have been received by the Company.
(div) Each of the consolidated balance sheets included in or incorporated by reference into the Company Reports (including the related notes and schedules) fairly presents or, in the case of Company Reports filed after the date of this Agreement, will fairly present, in each case, in all material respects, the consolidated financial position of the Company and its Subsidiaries, as of the date of such balance sheet, and each of the consolidated statements of operations, cash flows and changes in stockholders’ equity (deficit) included in or incorporated by reference into the Company Reports (including any related notes and schedules) fairly presents, or, in the case of Company Reports filed after the date of this Agreement, will fairly present, the consolidated financial position of the Company and its consolidated Subsidiaries in all material respects, as of its date and each caseof the consolidated statements of income, stockholders’ equity and cash flows included in or incorporated by reference into the Company Reports (including any related notes and schedules) fairly presents, or in the case of Company Reports filed after the date of this Agreement, will fairly present in all material respects, the results of operations, retained accumulated earnings (lossor losses) and changes in financial position, as the case may be, of the Company and its Subsidiaries such companies for the periods set forth therein (subject, in the case of unaudited statements, to notes and normal year-end audit adjustments that are not or will not be material in amount or effect), in each case in accordance with GAAP consistently applied during the periods involved, except as may be noted therein or in the notes theretotherein.
(e) Neither the Company nor any of its Subsidiaries has incurred any Indebtedness, or issued or sold any debt securities or rights to acquire any debt security of the Company or any of its Subsidiaries, the terms of which, or the terms of any instrument under which such Indebtedness, debt securities or rights were issued, requires the public listing of such Indebtedness, debt securities or rights or the maintenance by the Company or any of its Subsidiaries of registration under the Exchange Act.
Appears in 2 contracts
Samples: Merger Agreement (Medicis Pharmaceutical Corp), Merger Agreement (Valeant Pharmaceuticals International, Inc.)
Company Reports; Financial Statements. (a) The Company has filed or furnished, as applicable, on a timely basisbasis (taking into account all applicable extensions and grace periods), all forms, statements, certifications, reports and documents required to be filed or furnished by it with or to the SEC pursuant to the Exchange Act or the Securities Act of 1933, as amended (the “Securities Act”), since June 30December 31, 2014 2010 (the “Applicable Date”) (the forms, statements, reports and documents filed with or furnished to the SEC since the Applicable Date and those filed with or furnished to the SEC subsequent to the date of this Agreement, in each case as amendedincluding any amendments thereto, the “Company Reports”). Each of the Company Reports, at the time of its filing or being furnished complied or, if not yet filed or furnished, will comply in all material respects with the applicable requirements of the Securities Act, the Exchange Act and the Xxxxxxxx-Xxxxx Act of 2002 (the “Xxxxxxxx-Xxxxx Act”)2002, and any rules and regulations promulgated thereunder applicable to the Company Reports. As of their respective dates (or, if amended prior to the date of this Agreement, as of the date of such amendment), the Company Reports did not, and any Company Reports filed with or furnished to the SEC subsequent to the date of this Agreement will not, contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements made therein, in light of the circumstances in which they were made, not misleading. To the Knowledge of the Company, as of the date of this Agreement, there are no outstanding or unresolved comments from the SEC staff with respect to the Company Reports and none of the Company Reports is the subject of ongoing SEC review or investigation. No Company Subsidiary is required to file any form, report or other document with the SEC. The Company has made available to Parent all comment letters received from the SEC or the SEC staff from the Applicable Date to the date of this Agreement, and all responses thereto and shall promptly make available to Parent any such comment letters and responses dated after the date of this Agreement. Section 5.5 of the Company Disclosure Letter lists all effective registration statements filed by the Company on Form S-3 or Form S-8 or otherwise relying on Rule 415 under the Securities Act.
(b) The Company is in compliance in all material respects with the applicable listing and corporate governance rules and regulations of Nasdaq.
(c) The Company maintains disclosure controls and procedures required by Rule 13a-15 or 15d-15 under the Exchange Act. Such disclosure controls and procedures are reasonably designed to ensure that information required to be disclosed by the Company in its filings with the SEC under the Exchange Act is recorded and reported on a timely basis to the individuals responsible for the preparation of the Company’s filings with the SEC under the Exchange Actand other public disclosure documents. The Company maintains internal control over financial reporting (as defined in Rule 13a-15 or 15d-15, as applicable, under the Exchange Act). Such internal control over financial reporting is designed to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with GAAPgenerally accepted accounting principles and includes policies and procedures that (i) pertain to the maintenance of records that in reasonable detail accurately and fairly reflect the transactions and dispositions of the asset of the Company, (ii) provide reasonable assurance that transactions are recorded as necessary to permit preparation of financial statements in accordance with generally accepted accounting principles, and that receipts and expenditures of the Company are being made only in accordance with authorizations of management and directors of the Company, and (iii) provide reasonable assurance regarding prevention or timely detection of unauthorized acquisition, use or disposition of the Company’s assets that could have a material effect on its financial statements. The Company has disclosed, based on the most recent evaluation of its Chief Executive Officer chief executive officer and its Chief Financial Officer chief financial officer prior to the date of this Agreement, to the Company’s auditors and the audit committee of the Company’s Board of Directors (x) any significant deficiencies and material weaknesses in the design or operation of its internal controls over financial reporting that are reasonably likely to adversely affect the Company’s ability to record, process, summarize and report financial information and has identified for the Company’s auditors and audit committee of the Company Board any material weaknesses in internal control over financial reporting and (y) any fraud, whether or not material, that involves management or other employees who have a significant role in the Company’s internal control over financial reporting. The Company has made available prior to the date of this Agreement to Parent (I) either materials relating to or a summary of any disclosure of Any matters described in clauses (x) or (y) above are described in the preceding sentence made by management Section 5.5(c) of the Company Disclosure Letter. Any material change in internal control over financial reporting and any significant deficiency or material weakness in the design or operation of internal control over financial reporting required to its auditors and audit committee on be disclosed in any Company Report or after in any form, report or document filed by the Company with the SEC since the Applicable Date has been so disclosed and prior to the date of this Agreement and (II) any material communication on or after the Applicable Date and prior to the date of this Agreement made by management of the Company or its auditors has taken reasonable steps to the audit committee as required by the listing standards of Nasdaq, the audit committee’s charter or professional standards of the Public Company Accounting Oversight Board. Since the Applicable Date remediate each significant deficiency and prior to the date of this Agreement, no complaints from any source regarding a material violation of accounting procedures, internal accounting controls or auditing matters or compliance with Law, including from Company Employees regarding questionable accounting, auditing or legal compliance matters have, to the Knowledge of the Company, been received by the Companyweakness previously so disclosed.
(d) Each of the consolidated balance sheets included in in, or incorporated by reference into into, the Company Reports (including the related notes and schedules) fairly presents or, in the case of Company Reports filed after the date of this Agreement, will fairly present, in each case, in all material respects, the consolidated financial position of the Company and its Subsidiaries, as of the date of such balance sheet, and each of the consolidated statements of operations, cash flows and changes in stockholders’ equity (deficit) included in or incorporated by reference into the Company Reports (including any related notes and schedules) fairly presents, or, in the case of Company Reports filed after the date of this Agreement, will fairly present, in all material respects, the consolidated financial position of the Company and its consolidated Subsidiaries as of its date and each caseof the consolidated statements of comprehensive income (loss), operations, stockholders’ equity and cash flows included in or incorporated by reference into the Company Reports (including any related notes and schedules) fairly presents, in all material respects, or in the case of Company Reports filed after the date of this Agreement, will fairly present, in all material respects, the results of operations, retained earnings (loss) and changes in financial position, as the case may be, of the Company and its consolidated Subsidiaries for the periods set forth therein (subject, in the case of except that unaudited statements, to statements may not contain notes and are subject to normal year-end audit adjustments that are not or will not be material in amount or effect), in each case (i) in accordance with GAAP U.S. generally accepted accounting principles consistently applied during the periods involved, except as may be noted therein and (ii) such consolidated financial statements, complied or will comply as to form in all material respects with applicable accounting requirements and the notes published rules and regulations of the SEC with respect thereto.
(e) Neither the Company nor any of its Subsidiaries has incurred any Indebtedness, or issued or sold any debt securities or rights to acquire any debt security None of the Company information supplied or any of its Subsidiaries, the terms of which, or the terms of any instrument under which such Indebtedness, debt securities or rights were issued, requires the public listing of such Indebtedness, debt securities or rights or the maintenance to be supplied by the Company for inclusion or incorporation by reference in the Proxy Statement will, at the date it is first mailed to the holders of Shares or at the time of the Stockholders Meeting, contain any untrue statement of its Subsidiaries a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of registration the circumstances under which they are made, not misleading. The Proxy Statement will comply as to form in all material respects with the requirements of the Exchange ActAct and the rules and regulations promulgated thereunder, Delaware law and any other applicable Laws, except that no representation or warranty is made by the Company with respect to statements made or incorporated by reference therein based on information supplied by Parent or Merger Sub specifically for inclusion or incorporation by reference therein. The Company will include in their entirety, as well as a fair summary of the analysis underlying, the fairness opinions of X.X. Xxxxxx Securities LLC and Centerview Partners LLP in the Proxy Statement, including any amendments thereof and supplements thereto.
Appears in 2 contracts
Samples: Merger Agreement (Optimer Pharmaceuticals Inc), Merger Agreement (Cubist Pharmaceuticals Inc)
Company Reports; Financial Statements. (a) The Since July 1, 2009, the Company has filed or furnished, as applicable, on a timely basis, basis all forms, statements, certifications, reports and documents required to be filed or furnished by it with or to the SEC pursuant to the Exchange Act or the under Applicable Securities Act since June 30, 2014 (the “Applicable Date”) Laws (the forms, statements, certifications, reports and documents filed with or furnished to the SEC since the Applicable Date July 1, 2009 and those filed with or furnished to the SEC subsequent to the date of this Agreementhereof, in each case as amendedincluding any amendments thereto, the “Company Reports”). Each of the Company ReportsReports required to be filed or furnished under Applicable Securities Laws, at the time of its filing or being furnished complied or, if not yet filed or furnished, will comply comply, in all material respects with the applicable requirements of the Applicable Securities Act, the Exchange Act and the Xxxxxxxx-Xxxxx Act of 2002 (the “Xxxxxxxx-Xxxxx Act”), and any rules and regulations promulgated thereunder applicable to the Company ReportsLaws. As of their respective dates (or, if amended prior to the date of this Agreementamended, as of the date of such amendment), the Company Reports did not, and any Company Reports filed with or furnished to the SEC subsequent to the date of this Agreement hereof will not, contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements made therein, in light of the circumstances in which they were made, not misleading. All of the Company Reports required to be filed or furnished under Applicable Securities Laws are, or if not yet filed or furnished will be, publicly available on SEDAR or XXXXX to the extent required by Applicable Securities Laws. The Company has not filed any confidential material change report that at the date hereof remains confidential or, other than confidential treatment requests filed with the SEC for which a confidentiality order has been granted by the SEC, any other confidentiality filings under any Applicable Securities Laws.
(b) The Company is in compliance in all material respects with the applicable listing and corporate governance rules and regulations of Nasdaqthe Exchanges and Applicable Securities Laws.
(c) The Company maintains disclosure controls and procedures required by Rule 13a-15 or 15d-15 is a “reporting issuer” under the Exchange ActApplicable Securities Laws of the provinces of British Columbia, Alberta, Saskatchewan, Manitoba, Quebec, Ontario and Nova Scotia, and is not in default of any Applicable Securities Laws of any such Canadian jurisdiction. Such disclosure controls and procedures are designed to ensure that information required to be disclosed by the Company in its filings with the SEC under the Exchange Act is recorded and reported on a timely basis to the individuals responsible for the preparation None of the Company’s filings with the SEC Subsidiaries is subject to any continuous or periodic, or other disclosure requirements under the Exchange Actany Applicable Securities Laws in any jurisdiction. The Company maintains has not taken any action to cease to be a reporting issuer in any province of Canada nor has the Company received notification from any Securities Authorities seeking to revoke the reporting issuer status of the Company. The Company is a “foreign private issuer” (as such term is defined in Rule 3b-4 under the 1934 Act).
(d) No delisting, suspension of trading in or cease trading order with respect to the Common Shares is pending or, to the knowledge of the Company, threatened.
(e) The Company’s system of internal control over financial reporting (as defined in Rule 13a-15 or 15d-15, as applicable, under Rules 13a-15(f) and 15d-15(f) of the Exchange 1934 Act). Such internal control over financial reporting ) is designed to provide effective in providing reasonable assurance regarding that (A) the reliability Company maintains records that in reasonable detail accurately and fairly reflect its transactions and dispositions of financial reporting and the assets, (B) transactions are executed in accordance with management’s general or specific authorization, (C) transactions are recorded as necessary (I) to permit preparation of financial statements for external purposes in accordance conformity with GAAP. The Company has disclosed, based on the most recent evaluation of its Chief Executive Officer and its Chief Financial Officer prior to the date of this Agreement, to the Company’s auditors and the audit committee of the Company’s Board of Directors (x) any significant deficiencies and material weaknesses in the design or operation of its internal controls over financial reporting that are reasonably likely to adversely affect the Company’s ability to record, process, summarize and report financial information and (y) any fraud, whether or not material, that involves management or other employees who have a significant role in the Company’s internal control over financial reporting. The Company has made available prior to the date of this Agreement to Parent (I) either materials relating to or a summary of any disclosure of matters described in clauses (x) or (y) in the preceding sentence made by management of the Company to its auditors and audit committee on or after the Applicable Date and prior to the date of this Agreement and (II) any material communication on or after the Applicable Date and prior to the date of this Agreement made by management of the Company or its auditors to the audit committee as required by the listing standards of Nasdaq, the audit committee’s charter or professional standards of the Public Company Accounting Oversight Board. Since the Applicable Date and prior to the date of this Agreement, no complaints from any source regarding a material violation of accounting procedures, internal accounting controls or auditing matters or compliance with Law, including from Company Employees regarding questionable accounting, auditing or legal compliance matters have, to the Knowledge of the Company, been received by the Company.
(d) Each of the consolidated balance sheets included in or incorporated by reference into the Company Reports (including the related notes and schedules) fairly presents or, in the case of Company Reports filed after the date of this Agreement, will fairly present, in each case, in all material respects, the consolidated financial position of the Company and its Subsidiaries, as of the date of such balance sheet, and each of the consolidated statements of operations, cash flows and changes in stockholders’ equity (deficit) included in or incorporated by reference into the Company Reports (including any related notes and schedules) fairly presents, or, in the case of Company Reports filed after the date of this Agreement, will fairly present, in each case, in all material respects, the results of operations, retained earnings (loss) and changes in financial position, as the case may be, of the Company and its Subsidiaries maintain accountability for the periods set forth therein (subject, in the case of unaudited statements, to notes and normal year-end audit adjustments that are not or will not be material in amount or effect), in each case in accordance with GAAP consistently applied during the periods involved, except as may be noted therein or in the notes thereto.
(e) Neither the Company nor any of its Subsidiaries has incurred any Indebtedness, or issued or sold any debt securities or rights to acquire any debt security of the Company or any of its Subsidiaries, the terms of which, or the terms of any instrument under which such Indebtedness, debt securities or rights were issued, requires the public listing of such Indebtedness, debt securities or rights or the maintenance by the Company or any of its Subsidiaries of registration under the Exchange Act.assets,
Appears in 2 contracts
Samples: Acquisition Agreement, Acquisition Agreement
Company Reports; Financial Statements. (ai) The Since January 29, 2010 (the “Applicable Date”), the Company has filed or furnished, as applicable, on a timely basis, basis (taking into account all applicable grace periods) all forms, statements, certifications, reports reports, statements and documents required to be filed or furnished by it with or to the SEC pursuant to the Securities Act and the Exchange Act or the Securities Act since June 30, 2014 (the “Applicable Date”) (the such forms, statementscertifications, reports reports, statements and documents filed with or furnished to the SEC since the Applicable Date and those filed with or furnished to the SEC subsequent to the date of this Agreement, in each case as amendedincluding any amendments thereto, the “Company SEC Reports”). Each of the Company ReportsSEC Reports (including any financial statements or other schedules included therein), at the time of its filing or being furnished furnished, complied or, if not yet filed or furnished, will comply in all material respects with the applicable requirements of the Securities Act, the Exchange Act and the Xxxxxxxx-Xxxxx Act of 2002 (the “Xxxxxxxx-Xxxxx Act”), ) and any rules and regulations promulgated thereunder applicable to the Company SEC Reports. As of their respective dates (or, if amended prior to the date of this Agreement, as of the date of such amendment), the Company SEC Reports did not, and any Company SEC Reports filed with or furnished to the SEC subsequent to the date of this Agreement will not, contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements made therein, in light of the circumstances in which they were made, not misleading. As of the date hereof, there are no material outstanding or unresolved comments received from the SEC with respect to any of the Company SEC Reports.
(b) The Company is in compliance in all material respects with the applicable listing and corporate governance rules and regulations of Nasdaq.
(cii) The Company maintains disclosure controls and procedures required by Rule 13a-15 or 15d-15 under the Exchange Act. Such disclosure controls and procedures are reasonably designed to ensure that material information required to be disclosed by the Company in its filings with the SEC under the Exchange Act is recorded and reported on a timely basis to the individuals responsible for the preparation of the Company’s filings with the Company SEC under the Exchange ActReports. The Company maintains internal control over financial reporting (as defined in Rule 13a-15 or 15d-15, as applicable, under the Exchange Act). Such internal control over financial reporting is designed to provide effective in providing reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with United States generally accepted accounting principles (“GAAP. ”).
(iii) The Company has disclosed, based on the most recent evaluation of its Chief Executive Officer and its Chief Financial Officer prior to the date of this Agreementhereof, to the Company’s auditors and the audit committee of the Company’s Board of Directors of the Company (xA) any significant deficiencies and material weaknesses in the design or operation of its internal controls control over financial reporting that are reasonably likely to (as defined in Rule 13a-15(f) of the Exchange Act) which would adversely affect in any material respect the Company’s ability to record, process, summarize and report financial information and (yB) any fraud, whether or not material, fraud that involves management or other employees who have a significant role in the Company’s internal control over financial reporting. The Company has made available prior to the date of this Agreement to Parent (I) either materials relating to or a summary of any disclosure of matters described in clauses (x) or (y) in the preceding sentence made by management of the Company to its auditors and audit committee on or after the Applicable Date and prior to the date of this Agreement and (II) any material communication on or after the Applicable Date and prior to the date of this Agreement made by management of the Company or its auditors to the audit committee as required by the listing standards of Nasdaq, the audit committee’s charter or professional standards of the Public Company Accounting Oversight Board. Since the Applicable Date and prior to the date of this Agreement, no complaints from any source regarding a material violation of accounting procedures, internal accounting controls or auditing matters or compliance with Law, including from Company Employees regarding questionable accounting, auditing or legal compliance matters have, to the Knowledge of the Company, been received by the Company.
(div) The Company is in compliance in all material respects with the applicable provisions of the Xxxxxxxx-Xxxxx Act and the applicable listing and corporate governance rules and regulations of the NYSE.
(v) Each of the consolidated balance sheets included in or incorporated by reference into the Company SEC Reports (including the related notes and schedules) fairly presents in all material respects, or, in the case of Company SEC Reports filed after the date of this Agreement, will fairly present, in each case, present in all material respects, the consolidated financial position of the Company and its Subsidiaries, consolidated Subsidiaries as of the its date of such balance sheet, and each of the consolidated statements of operationsearnings (loss), shareowners’ equity and comprehensive income (loss) and cash flows and changes in stockholders’ equity (deficit) included in or incorporated by reference into the Company SEC Reports (including any related notes and schedules) (such balance sheets, statements of earnings (loss), shareowners’ equity and comprehensive income (loss) and cash flows, including any related notes and schedules, collectively, the “Company Financial Statements”) fairly presentspresents in all material respects, or, or in the case of Company SEC Reports filed after the date of this Agreement, will fairly present, in each case, present in all material respects, the changes in financial position, results of operations, operations and retained earnings (loss) and changes in financial position), as the case may be, of the Company and its consolidated Subsidiaries for the periods set forth therein (subject, in the case of unaudited statements, to notes and normal year-end audit adjustments that are not or will not be material in amount or effectadjustments), in each case case, in accordance with GAAP consistently applied during the periods involvedGAAP, except as may be noted therein or in the notes thereto.
(e) Neither the Company nor any of its Subsidiaries has incurred any Indebtedness, or issued or sold any debt securities or rights to acquire any debt security of the Company or any of its Subsidiaries, the terms of which, or the terms of any instrument under which such Indebtedness, debt securities or rights were issued, requires the public listing of such Indebtedness, debt securities or rights or the maintenance by the Company or any of its Subsidiaries of registration under the Exchange Act.
Appears in 2 contracts
Samples: Merger Agreement (Wolverine World Wide Inc /De/), Merger Agreement (Collective Brands, Inc.)
Company Reports; Financial Statements. (a) The Company has filed or furnished, as applicable, on a timely basis, all forms, statements, certifications, reports and documents required to be filed or furnished by it with or to the SEC pursuant to the Exchange Act or the Securities Act since June 30, 2014 (the “Applicable Date”) (” and the forms, statements, reports and documents filed with or furnished to the SEC since the Applicable Date and those filed with or furnished to the SEC subsequent to the date of this the Agreement, in each case as amendedincluding any amendments or supplements thereto, the “Company Reports”). No Subsidiary of the Company is required to file or furnish any periodic reports with the SEC. Each of the Company Reports, at the time of its filing or being furnished complied or, if not yet filed or furnished, will comply when filed or furnished, in all material respects with the applicable requirements of the Securities Act, the Exchange Act Act, applicable accounting standards and the Xxxxxxxx-Xxxxx Act of 2002 (as amended and including the “Xxxxxxxx-Xxxxx Act”rules and regulations promulgated thereunder), and any rules and regulations promulgated thereunder applicable to the Company Reports. As of their respective dates (or, if amended prior to the date of this the Agreement, as of the date of such amendment), the Company Reports did not, and any Company Reports filed with or furnished to the SEC subsequent to the date of this the Agreement will not, contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements made therein, in light of the circumstances in which they were made, not misleading, except to the extent corrected by a subsequently filed Company Report prior to the date hereof.
(b) The Company is in compliance in all material respects with the applicable listing and corporate governance rules and regulations of Nasdaq.
(c) The Company maintains disclosure controls and procedures required by Rule 13a-15 or 15d-15 under the Exchange Act. Such disclosure controls and procedures are designed to ensure that information required to be disclosed by the Company in its filings with the SEC under the Exchange Act is recorded and reported on a timely basis to the individuals responsible for the preparation of the Company’s filings with the SEC under the Exchange Act. The Company maintains internal control over financial reporting (as defined in Rule 13a-15 or 15d-15, as applicable, under the Exchange Act). Such internal control over financial reporting is ) that are designed to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with GAAP. The Company has disclosed, based on the most recent evaluation of its Chief Executive Officer U.S. GAAP and its Chief Financial Officer prior includes policies and procedures that (i) pertain to the date maintenance of this Agreement, to records that in reasonable detail accurately and fairly reflect the transactions and dispositions of the assets of the Company’s auditors , (ii) provide reasonable assurance that transactions are recorded as necessary to permit preparation of financial statements in accordance with U.S. GAAP, and that receipts and expenditures of the audit committee Company are being made in accordance with authorizations of management and directors of the Company, and (iii) provide reasonable assurance regarding prevention or timely detection of unauthorized acquisition, use or disposition of the Company’s Board of Directors (x) any significant deficiencies and material weaknesses in the design or operation of its internal controls over financial reporting assets that are reasonably likely to adversely affect the Company’s ability to record, process, summarize and report financial information and (y) any fraud, whether or not material, that involves management or other employees who could have a significant role in the Company’s internal control over material effect on its financial reporting. The Company has made available prior to the date of this Agreement to Parent (I) either materials relating to or a summary of any disclosure of matters described in clauses (x) or (y) in the preceding sentence made by management of the Company to its auditors and audit committee on or after the Applicable Date and prior to the date of this Agreement and (II) any material communication on or after the Applicable Date and prior to the date of this Agreement made by management of the Company or its auditors to the audit committee as required by the listing standards of Nasdaq, the audit committee’s charter or professional standards of the Public Company Accounting Oversight Board. Since the Applicable Date and prior to the date of this Agreement, no complaints from any source regarding a material violation of accounting procedures, internal accounting controls or auditing matters or compliance with Law, including from Company Employees regarding questionable accounting, auditing or legal compliance matters have, to the Knowledge of the Company, been received by the Companystatements.
(dc) Each of the consolidated balance sheets included in or incorporated by reference into the Company Reports (including the related notes and schedules) fairly presents presents, or, in the case of Company Reports filed after the date of this the Agreement, will fairly present, in each case, in all material respects, the consolidated financial position of the Company and its Subsidiaries, consolidated Subsidiaries as of the date of such balance sheetits date, and each of the consolidated statements of operationsincome, changes in shareholders’ equity and cash flows and changes in stockholders’ equity (deficit) included in or incorporated by reference into the Company Reports (including any related notes and schedules) fairly presents, or, or in the case of Company Reports filed after the date of this the Agreement, will fairly present, in each case, in all material respects, the results of operations, retained earnings (loss) and changes in financial positionshareholders’ equity and cash flows, as the case may be, of the Company and its consolidated Subsidiaries for the periods set forth therein (subject, in the case of unaudited interim statements, to notes and normal year-end audit adjustments that are not or will not be material and the exclusion of certain notes in amount or effectaccordance with the rules of the SEC relating to unaudited financial statements), in each case in accordance with GAAP consistently applied during U.S. GAAP, Regulation S-X and the periods involved, rules and standards of the Public Company Accounting Oversight Board except as may be noted therein or in the notes theretotherein.
(ed) Neither The Company has implemented disclosure controls and procedures (as defined in Rule 13a-15(e) of the Company nor any of Exchange Act) that are reasonably designed to ensure that material information relating to the Company, including its Subsidiaries has incurred any IndebtednessSubsidiaries, or issued or sold any debt securities or rights required to acquire any debt security be included in reports filed under the Exchange Act is made known to the chief executive officer and chief financial officer of the Company or any of its Subsidiariesother Persons performing similar functions by others within those entities. Neither the Company nor, to the Company’s Knowledge, the terms Company’s independent registered public accounting firm has identified or been made aware of which“significant deficiencies” or “material weaknesses” (as defined by the Public Company Account Oversight Board) in the design or operation of the Company’s internal controls and procedures which are reasonably likely to adversely affect the Company’s ability to record, process, summarize and report financial data, in each case which has not been subsequently remediated. To the Company’s Knowledge, there is no fraud, whether or not material, that involves the terms of any instrument under which such Indebtedness, debt securities Company’s management or rights were issued, requires other employees who have a significant role in the public listing of such Indebtedness, debt securities or rights or the maintenance internal control over financial reporting utilized by the Company or any of and its Subsidiaries of registration under the Exchange ActSubsidiaries.
Appears in 2 contracts
Samples: Merger Agreement (Diodes Inc /Del/), Merger Agreement (Pericom Semiconductor Corp)
Company Reports; Financial Statements. (a) The Company has filed or furnishedfiled, as applicable, on in a timely basismanner, with the Securities and Exchange Commission (the “SEC”) and made available to Parent all registration statements, prospectuses, reports, schedules, forms, statements, certifications, reports certifications and other documents (including exhibits and all other information incorporated by reference therein) required to be so filed or furnished by it with or to the SEC pursuant to Company since January 1, 2001, other than the Exchange Act or the Securities Act since June 30Proxy Statement (collectively, 2014 (the “Applicable Date”) (the forms, statements, including any such reports and documents filed with or furnished to the SEC since the Applicable Date and those filed with or furnished to the SEC subsequent to the date of this Agreement, in each case hereof and as amended, the “Company Reports”). Each As of their respective dates, the Company Reports, at the time of its filing or being furnished Reports complied or, if not yet filed or furnished, will comply in all material respects with the applicable requirements of the Securities Act, the Exchange Act and the Xxxxxxxx-Xxxxx Act of 2002 (Exchange Act, as the “Xxxxxxxx-Xxxxx Act”)case may be, and any the applicable rules and regulations promulgated thereunder applicable to the Company Reports. As of their respective dates (or, if amended prior to the date of this Agreement, as of the date SEC promulgated thereunder, and none of such amendment), the Company Reports did notcontained, and any no Company Reports filed with or furnished to the SEC subsequent to the date hereof will contain, as of this Agreement will nottheir respective dates, contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements made therein, in light of the circumstances in which they were made, not misleading.
(b) The , except to the extent corrected by a subsequently filed Company Report filed with the SEC prior to the date hereof. No Subsidiary of the Company is required to make any filings with the SEC. The consolidated financial statements of the Company included in compliance the Company Reports comply in all material respects with the applicable listing accounting requirements and corporate governance the published rules and regulations of Nasdaq.
(c) The Company maintains disclosure controls and procedures required by Rule 13a-15 or 15d-15 under the Exchange Act. Such disclosure controls and procedures are designed to ensure that information required to be disclosed by the Company in its filings with the SEC under the Exchange Act is recorded and reported on a timely basis to the individuals responsible for the preparation of the Company’s filings with the SEC under the Exchange Act. The Company maintains internal control over financial reporting respect thereto, fairly present (as defined in Rule 13a-15 or 15d-15, as applicable, under the Exchange Act). Such internal control over financial reporting is designed to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with GAAP. The Company has disclosed, based on the most recent evaluation of its Chief Executive Officer and its Chief Financial Officer prior to the date of this Agreement, to the Company’s auditors and the audit committee of the Company’s Board of Directors (x) any significant deficiencies and material weaknesses in the design or operation of its internal controls over financial reporting that are reasonably likely to adversely affect the Company’s ability to record, process, summarize and report financial information and (y) any fraud, whether or not material, that involves management or other employees who have a significant role in the Company’s internal control over financial reporting. The Company has made available prior to the date of this Agreement to Parent (I) either materials relating to or a summary of any disclosure of matters described in clauses (x) or (y) in the preceding sentence made by management of the Company to its auditors and audit committee on or after the Applicable Date and prior to the date of this Agreement and (II) any material communication on or after the Applicable Date and prior to the date of this Agreement made by management of the Company or its auditors to the audit committee as required by the listing standards of Nasdaq, the audit committee’s charter or professional standards of the Public Company Accounting Oversight Board. Since the Applicable Date and prior to the date of this Agreement, no complaints from any source regarding a material violation of accounting procedures, internal accounting controls or auditing matters or compliance with Law, including from Company Employees regarding questionable accounting, auditing or legal compliance matters have, to the Knowledge of the Company, been received by the Company.
(d) Each of the consolidated balance sheets included in or incorporated by reference into the Company Reports (including the related notes and schedules) fairly presents orsubject, in the case of Company Reports filed after the date of this Agreementan unaudited financial statement, to normal recurring audit adjustments not material in amount), or will fairly present, in each case, in all material respects, the consolidated financial position of the Company and its Subsidiaries, Subsidiaries as of the date of such balance sheet, dates thereof and each of the consolidated statements of operations, operations and statements of cash flows and changes in stockholders’ equity (deficit) included in or incorporated by reference into the Company Reports (including any related notes and schedules) fairly presents, or, in the case of Company Reports filed after the date of this Agreement, will fairly present, in each case, in all material respects, the results of operations, retained earnings (loss) and changes in financial position, as the case may be, of the Company and its Subsidiaries for the periods set forth therein (subject, in the case of unaudited statements, to notes and normal year-end audit adjustments that are not or will not be material in amount or effect)then ended, in each case in accordance with GAAP generally accepted accounting principles consistently applied (“GAAP”) during the periods involved, except as may be noted therein or in the notes thereto.
(e) Neither the . The Company nor any of its Subsidiaries has incurred any Indebtedness, or issued or sold any debt securities or rights heretofore made available to acquire any debt security of the Company or any of its Subsidiaries, the terms of which, or the terms Parent a complete and correct copy of any instrument under amendments or modifications which such Indebtednessare required to be filed with the SEC but have not yet been filed with the SEC to (i) agreements, debt securities documents or rights were issued, requires the public listing of such Indebtedness, debt securities or rights or the maintenance other instruments which previously have been filed by the Company or with the SEC pursuant to the Exchange Act and (ii) the Company Reports themselves. The Company has responded to all comment letters of the staff of the SEC relating to the Company Reports and the SEC has not asserted that any of its Subsidiaries such responses is inadequate, insufficient or otherwise non-responsive. The Company has heretofore made available to Parent true, correct and complete copies of registration under all correspondence with the Exchange ActSEC occurring since January 1, 2001.
Appears in 2 contracts
Samples: Merger Agreement (Biomet Inc), Merger Agreement (Interpore International Inc /De/)
Company Reports; Financial Statements. (ai) The Except as set forth in Section 5.1(e)(i) of the Company Disclosure Letter, each of the Company and each of the Filing Subsidiaries has filed or furnished, as applicable, on a timely basis, all forms, statements, certifications, reports and other documents (including exhibits, financial statements and schedules thereto, and other information incorporated therein) required to be filed or furnished by it with or to the SEC Securities and Exchange Commission (the “SEC”) pursuant to the Exchange Act or the Securities Act of 1933 and the rules and regulations promulgated thereunder, as amended (the “Securities Act”) or any Contract governing any indebtedness of the Company or such Filing Subsidiary requiring such filings to be made since June 30December 31, 2014 2012 (the “Applicable Date”) (the forms, statements, certifications, reports and documents filed with or furnished to the SEC since the Applicable Date and those filed with or furnished to the SEC subsequent to the date of this Agreementhereof, in each case as amendedincluding any amendments thereto, the “Company Reports”). Each Except as set forth in Section 5.1(e)(i) of the Company Disclosure Letter, each of the Company Reports, including any financial statements or schedules included therein, at the time of its filing or being furnished complied or, if not yet filed or furnished, will comply comply, in all material respects with the applicable requirements of the Securities Act, the Exchange Act and the Xxxxxxxx-Xxxxx Act of 2002 2002, as amended, and the rules and regulations promulgated thereunder (the “Xxxxxxxx-Xxxxx Act”), and any rules and regulations promulgated thereunder ) applicable to the Company Reports. As Except as set forth in Section 5.1(e)(i) of the Company Disclosure Letter, as of their respective dates (or, if amended prior to to, or after, the date of this Agreementhereof, as of the date of such amendment), the Company Reports filed with or furnished to the SEC prior to the date hereof did not, and any Company Reports filed with or furnished to the SEC subsequent to the date of this Agreement hereof will not, contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements made therein, in light of the circumstances in which they were made, not misleading. There are no outstanding or unresolved comments received from the SEC staff with respect to the Company Reports. None of the Company Reports is, to the Knowledge (as defined below) of the Company, the subject of ongoing SEC review.
(bii) The Each of the consolidated balance sheets included in, or incorporated by reference into, the Company is in compliance Reports, as amended prior to the date hereof (including the related notes and schedules thereto) fairly presents in all material respects with respects, or, in the case of Company Reports filed after the date hereof, will fairly present in all material respects, the financial position of the applicable listing entity and corporate governance rules its consolidated Subsidiaries as of its date (and regulations if amended, as of Nasdaqthe date of the last such amendment prior to the date hereof) and each of the statements of consolidated income, comprehensive income, cash flows and shareholders’ equity included in or incorporated by reference into the Company Reports (including any related notes and schedules thereto), as finally amended prior to the date hereof, fairly presents in all material respects, or, in the case of Company Reports filed after the date hereof, will fairly present in all material respects, the financial position, results of operations and cash flows, as the case may be, of the applicable entity and its consolidated Subsidiaries for the periods set forth therein (subject, in the case of unaudited statements, to the lack of notes and to normal year-end adjustments), in each case in accordance with GAAP, except as may be noted therein.
(ciii) The Company maintains disclosure controls and procedures required by Rule 13a-15 or 15d-15 under the Exchange Act. Such disclosure controls and procedures are designed to ensure that information required to be disclosed by Except as set forth on Section 5.1(e)(iii) of the Company in its filings with Disclosure Letter, the SEC under the Exchange Act is recorded and reported on a timely basis to the individuals responsible for the preparation of the Company’s filings with the SEC under the Exchange Act. The Company maintains internal control over financial reporting (as defined in Rule 13a-15 or 15d-15, as applicable, under the Exchange Act). Such internal control over financial reporting is designed to provide effective in providing reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with GAAP, in each case, in each case, in all material respects. The Except as has not had, individually or in the aggregate, a material effect on the nature or reliability of the information disclosed in the Company’s periodic reports filed under the Exchange Act,
(A) each of the Company and the Filing Subsidiaries maintains disclosure controls and procedures required by Rule 13a-15 or 15d-15 under the Exchange Act that are effective to ensure that information required to be disclosed by it is recorded and reported on a timely basis to the individuals responsible for the preparation of its filings with the SEC and other public disclosure documents (including its chief executive officer and chief financial officer) and (B) neither the Company nor any of the Filing Subsidiaries has disclosed, and is not required to disclose, based on the its most recent evaluation of its Chief Executive Officer and its Chief Financial Officer prior to the date of this Agreement, to the Company’s its outside auditors and the audit committee of the Company’s Board its board of Directors directors (xor similar governing body): (1) any significant deficiencies and material weaknesses in the design or operation of its internal controls over financial reporting (as defined in Rule 13a-15(f) under the Exchange Act) that are reasonably likely to adversely affect the Company’s its ability to record, process, summarize and report financial information and (y2) any fraud, known to it, whether or not material, that involves management or other employees who have a significant role in the Company’s its internal control controls over financial reporting. The Company has made available prior to the date of this Agreement to Parent (I) either materials relating to or a summary of any disclosure of matters described in clauses (x) or (y) in the preceding sentence made by management of the Company to its auditors and audit committee on or after the Applicable Date and prior to the date of this Agreement and (II) any material communication on or after the Applicable Date and prior to the date of this Agreement made by management of the Company or its auditors to the audit committee as required by the listing standards of Nasdaq, the audit committee’s charter or professional standards of the Public Company Accounting Oversight Board. Since the Applicable Date and prior to the date of this Agreement, no complaints from any source regarding a material violation of accounting procedures, internal accounting controls or auditing matters or compliance with Law, including from Company Employees regarding questionable accounting, auditing or legal compliance matters have, to the Knowledge of the Company, been received by the Company.
(div) Each of the consolidated balance sheets included in Except as has not had and would not have, individually or incorporated by reference into the Company Reports (including the related notes and schedules) fairly presents or, in the case of aggregate, a Company Reports filed after the date of this AgreementMaterial Adverse Effect, will fairly present, in each case, in all material respects, the consolidated financial position of the Company and its Subsidiaries, as of the date of such balance sheet, and each of the consolidated statements of operations, cash flows and changes in stockholders’ equity (deficit) included in or incorporated by reference into the Company Reports (including any related notes and schedules) fairly presents, or, in the case of Company Reports filed after the date of this Agreement, will fairly present, in each case, in all material respects, the results of operations, retained earnings (loss) and changes in financial position, as the case may be, of the Company and its Subsidiaries for is in compliance with the periods set forth therein (subjectapplicable provisions of the Xxxxxxxx-Xxxxx Act. Without limiting the generality of the foregoing, in the case of unaudited statements, to notes and normal year-end audit adjustments that are not or will not be material in amount or effect), in each case in accordance with GAAP consistently applied during the periods involved, except as may be noted therein or in the notes thereto.
(e) Neither neither the Company nor any of its Subsidiaries has incurred any Indebtednessis a party to, or issued has a commitment to become a party to, any joint venture, off-balance sheet partnership or sold any debt securities similar Contract or rights arrangement (including any Contract or arrangement relating to acquire any debt security of transaction or relationship between or among the Company or any of its Subsidiaries, on the terms one hand, and any unconsolidated Affiliate, including any structured finance, special purpose or limited purpose entity or Person, on the other hand) or any “off-balance sheet arrangements” (as defined in Item 303(a) of whichRegulation S-K of the SEC), where the result, purpose or effect of such Contract or arrangement is to avoid disclosure of any material transaction involving, or the terms of any instrument under which such Indebtednessmaterial liabilities of, debt securities or rights were issued, requires the public listing of such Indebtedness, debt securities or rights or the maintenance by the Company or any of its Subsidiaries of registration under in the Exchange ActCompany Reports or the financial statements included therein.
Appears in 2 contracts
Samples: Merger Agreement (Nextera Energy Inc), Merger Agreement (Energy Future Intermediate Holding CO LLC)
Company Reports; Financial Statements. (a) The Company has timely filed or furnished, as applicable, on a timely basis, all forms, statements, certifications, reports and documents Company Reports required to be filed or furnished by it with or to the SEC pursuant to the Exchange Act or the Securities Act since June 30, 2014 (the “Applicable Date”) (the forms, statements, reports and documents filed with or furnished to the SEC since the Applicable Date January 1, 2008 and those will timely file all Company Reports required to be filed with or furnished the SEC after the date hereof and prior to the SEC subsequent to the date of this Agreement, in each case as amended, the “Company Reports”)Effective Time. Each No subsidiary of the Company Reportsis subject to the reporting requirements of Section (13)a) or 15(d) of the Exchange Act. Each Company Report has complied, at the time of its filing or being furnished complied or, if not yet filed or furnished, will comply as the case may be, in all material respects with the applicable requirements of the Securities Act, the Exchange Act and the Xxxxxxxx-Xxxxx Act of 2002 (the “Xxxxxxxx-Xxxxx Act”), and any rules and regulations promulgated thereunder applicable to thereunder, or the Exchange Act, and the rules and regulations promulgated thereunder, as applicable, each as in effect on the date so filed, except for: (i) in the case of Company Reports. As Reports filed on or before the date of their respective dates (or, if this Agreement that were amended prior to or superseded on or before the date of this Agreement, as by the filing of the date applicable amending or superseding Company Reports; and (ii) in the case of such amendment), the Company Reports did not, and any Company Reports filed with or furnished to the SEC subsequent to after the date of this Agreement that are amended or superseded before the Effective Time, by the filing of the applicable amending or superseding Company SEC Reports. None of the Company Reports (including any financial statements or schedules included or incorporated by reference therein) contained or will notcontain, contain as the case may be, when filed (and, in the case of registration statements and proxy statements, on the dates of effectiveness and the dates of mailing, respectively) any untrue statement of a material fact or omit omitted or omits or will omit, as the case may be, to state a material fact required to be stated or incorporated by reference therein or necessary to make the statements made therein, in the light of the circumstances in under which they were or are made, not misleading.
(b) The Each of the Chief Executive Officer and Chief Financial Officer has made all certifications required by Rules 13a-14 and 15d-14 under the Exchange Act and Sections 302 and 906 of the Xxxxxxxx-Xxxxx Act with respect to the applicable Company is Reports filed prior to the date hereof (collectively, the “Certifications”) and the statements contained in compliance such Certifications were accurate in all material respects with as of the applicable listing and corporate governance rules and regulations of Nasdaqfiling thereof.
(c) The Company maintains disclosure controls has made available (including via the SEC’s XXXXX system, as applicable) to Parent all of the Company Financial Statements and procedures required by Rule 13a-15 or 15d-15 under all material correspondence (if such correspondence has occurred since January 1, 2008) between the Exchange Act. Such disclosure controls SEC on the one hand, and procedures are designed to ensure that information required to be disclosed the Company and any of the Scheduled Subsidiaries, on the other hand received by the Company prior to the date of this Agreement. As of the date hereof, there are no outstanding or unresolved comments in its filings with comment letters from the SEC under staff with respect to any of the Company Reports. To the Knowledge of the Company, as of the date hereof, none of the Company Reports is the subject of ongoing SEC review, outstanding SEC comment or outstanding SEC investigation. All of the Company Financial Statements comply in all material respects with applicable requirements of the Exchange Act is recorded and reported have been prepared in accordance with GAAP applied on a timely consistent basis to throughout the individuals responsible periods involved (except as may be indicated in the notes thereto) and fairly present in all material respects in accordance with GAAP the consolidated financial position of the Company at the respective dates thereof and the consolidated results of its operations and changes in cash flows for the preparation periods indicated (subject, in the case of unaudited statements, to normal year-end audit adjustments consistent with GAAP). As of the Company’s filings date hereof, the books and records of Company and its Subsidiaries have been maintained in all material respects in accordance with GAAP and any other applicable legal and accounting requirements and reflect only actual transactions. As of the SEC under the Exchange Act. date hereof, Armanino XxXxxxx LLP has not resigned or been dismissed as independent public accountants of Company as a result of or in connection with any disagreements with Company on a matter of accounting principles or practices, financial statement disclosure or auditing scope or procedure.
(d) The Company has implemented and maintains a system of internal control over financial reporting (as defined in Rule 13a-15 or 15d-15, as applicable, under the Exchange Act). Such internal control over financial reporting is designed accounting controls sufficient to provide reasonable assurance assurances regarding the reliability of financial reporting and the preparation of financial statements in accordance with GAAP. Such internal controls are sufficient to provide reasonable assurance regarding the reliability of the Company’s financial reporting and the preparation of Company financial statements for external purposes in accordance with GAAP. The Company has disclosedBetween January 1, based on 2008 and the most recent evaluation date of its this Agreement, the Company’s Chief Executive Officer and its Chief Financial Officer prior to the date of this Agreement, have disclosed to the Company’s auditors and the audit committee of the Company’s Company Board of Directors (xi) any all significant deficiencies and material weaknesses in the design or operation of its internal controls over financial reporting that are reasonably likely to adversely affect the Company’s ability to record, process, summarize and report financial information and (yii) any fraud, whether or not material, that involves management or other employees who have a significant role in the Company’s internal control over financial reportingcontrols, and the Company has provided to Parent copies of any material written materials relating to each of the foregoing. The Company has made available prior implemented and maintains disclosure controls and procedures (as defined in Rule 13a-15(e) of the Exchange Act) designed to ensure that information relating to the date of this Agreement Company, including its consolidated Subsidiaries, required to Parent (I) either materials relating to or a summary of any disclosure of matters described in clauses (x) or (y) be disclosed in the preceding sentence reports the Company files or submits under the Exchange Act is made by management known to the Chief Executive Officer and the Chief Financial Officer of the Company by others within those entities. Such disclosure controls and procedures are effective in timely alerting the Company’s Chief Executive Officer and its Chief Financial Officer to material information required to be included in the Company’s periodic reports required under the Exchange Act.
(e) The records, systems, controls, data and information of Company and Scheduled Subsidiaries are recorded, stored, maintained and operated under means (including any electronic, mechanical or photographic process, whether computerized or not) that are under the exclusive ownership and direct control of Company or Scheduled Subsidiaries or their accountants (including all means of access thereto and therefrom), except for any non-exclusive ownership and non-direct control that would not have a material adverse effect on Company’s system of internal accounting controls.
(f) The Company is, and since January 1, 2008 has been, in compliance in all material respects with the applicable provisions of the Xxxxxxxx-Xxxxx Act.
(g) The Company has adopted a code of ethics, as defined by Item 406(b) of Regulation S-K promulgated under the Exchange Act, for senior financial officers, applicable to its auditors and audit committee on principal financial officer, comptroller or after the Applicable Date and prior to the date of this Agreement and (II) principal accounting officer, or persons performing similar functions. The Company has promptly disclosed any material communication on change in or after the Applicable Date and prior to the date of this Agreement made by management waiver of the Company or its auditors to the audit committee Company’s code of ethics, as required by the listing standards Section 406(b) of Nasdaq, the audit committee’s charter or professional standards of the Public Company Accounting Oversight BoardXxxxxxxx-Xxxxx Act. Since the Applicable Date and prior to the date of this Agreement, no complaints from any source regarding a material violation of accounting procedures, internal accounting controls or auditing matters or compliance with Law, including from Company Employees regarding questionable accounting, auditing or legal compliance matters have, to To the Knowledge of the Company, since its adoption of a code of ethics, there have been received by no violations of provisions of the Company’s code of ethics.
(dh) Each There are no Liabilities of the consolidated balance sheets included in or incorporated by reference into the Company Reports (including the related notes and schedules) fairly presents or, in the case of Company Reports filed after the date of this Agreement, will fairly present, in each case, in all material respects, the consolidated financial position of the Company and its Subsidiaries, as of the date of such balance sheet, and each of the consolidated statements of operations, cash flows and changes in stockholders’ equity (deficit) included in or incorporated by reference into the Company Reports (including any related notes and schedules) fairly presents, or, in the case of Company Reports filed after the date of this Agreement, will fairly present, in each case, in all material respects, the results of operations, retained earnings (loss) and changes in financial position, as the case may be, of the Company and its Subsidiaries for the periods set forth therein (subject, in the case of unaudited statements, to notes and normal year-end audit adjustments that are not or will not be material in amount or effect), in each case in accordance with GAAP consistently applied during the periods involved, except as may be noted therein or in the notes thereto.
(e) Neither the Company nor any of its Subsidiaries has incurred any Indebtedness, or issued or sold any debt securities or rights to acquire any debt security of the Company or any of its Subsidiaries, the terms of which, or the terms of any instrument under which such Indebtedness, debt securities or rights were issued, requires the public listing of such Indebtedness, debt securities or rights or the maintenance by the Company or any of its Subsidiaries of registration any kind whatsoever, whether or not accrued and whether or not contingent or absolute, that are material to the Company and its Subsidiaries taken as a whole and that are required by GAAP to be set forth on the Company Financial Statements and are not set forth on the Company Financial Statements, other than (i) Liabilities incurred on behalf of the Company as a result of this Agreement and the transactions contemplated by this Agreement, (ii) Liabilities incurred in the ordinary course of business since December 31, 2009, none of which would reasonably be expected to have a Company Material Adverse Effect and (iii) Liabilities for performance of the Company’s obligations under the Exchange Actits contracts.
Appears in 2 contracts
Samples: Merger Agreement (Sonicwall Inc), Merger Agreement (Sonicwall Inc)
Company Reports; Financial Statements. (a) The Company has filed or furnished, as applicable, on a timely basis, all forms, statements, certifications, reports and documents Company Reports required to be filed or furnished by it with or to the SEC Securities Authorities pursuant to the Exchange Act or the Securities Act Laws since June 30December 31, 2014 2012 (the “Applicable Date”) (the forms, statements, reports and documents filed with or furnished to the SEC since the Applicable Date and those filed with or furnished to the SEC subsequent to the date of this Agreement, in each case as amendedincluding any amendments thereto, the “Company Reports”). Each of the Company Reports, at the time of its filing or being furnished complied furnished, complied, or, if not yet filed or furnished, will comply comply, in all material respects respects, with the applicable requirements of the Securities Act, the Exchange Act Laws and the Xxxxxxxx-Xxxxx Act of 2002 (the “Xxxxxxxx-Xxxxx Act”), and any rules and regulations promulgated thereunder applicable to the Company Reports. As of their respective dates (or, if amended prior to the date of this Agreement, as of the date of such amendment), the Company Reports did not, and any Company Reports Report filed with or furnished to the SEC Securities Authorities subsequent to the date of this Agreement will not, contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements made therein, in light of the circumstances in which they were made, not misleading. The Company has made available to the Parent true and complete copies of all material written comment letters from the staff of the Securities Authorities since the Applicable Date through the date of this Agreement relating to the Company Reports and all material written responses of the Company through the date of this Agreement thereto other than with respect to requests for confidential treatment or which are otherwise publicly available on XXXXX or SEDAR. As of the date hereof, there are no outstanding or unresolved comments in comment letters received from staff of any Securities Authority with respect to any Company Report and, to the Company’s Knowledge, none of the Company Reports (other than confidential treatment requests) are the subject of ongoing Securities Authority review. There are no material internal investigations or, to the Company’s Knowledge, any material Securities Authority inquiries or investigations or other material inquiries or investigations by or before a Governmental Entity pending or threatened, in each case regarding any accounting practices of the Company. The representations and warranties in this Section (5)(a) do not apply to any information included in any Company Report to the extent supplied by Parent for inclusion or incorporation by reference therein.
(b) The Company is a “reporting issuer” under Canadian Securities Laws in each of the provinces of Canada. The Company does not have any securities listed for trading on any securities exchange other than the TSX and NASDAQ, nor is the Company subject to any continuous or periodic or other disclosure requirements under the securities laws of any other jurisdiction. None of the Company’s Significant Subsidiaries is subject to any continuous or periodic, or other disclosure requirements under any securities laws in any jurisdiction. Since the Applicable Date, the Company has not taken any action to cease to be a reporting issuer in any province of Canada nor has the Company received prior to the date hereof written notification from any Securities Authority seeking to revoke the reporting issuer status of the Company. Since the Applicable Date, to the Company’s Knowledge, no delisting, suspension of trading or cease trade or other order or restriction with respect to any securities of the Company, as applicable, is pending, in effect or has been threatened by any applicable Governmental Entity (other than in connection with the Transactions), and the Company is not subject to any formal or informal review, enquiry, investigation or other proceeding relating to any such order or restriction. The Company has not as of the date of this Agreement filed any confidential material change report (which at the date of this Agreement remains confidential) or any other confidential filings (including redacted filings, other than the redaction of information from a material contract which is permitted by applicable Securities Laws to be so redacted) filed to or furnished with, as applicable, any Securities Authority.
(c) The Company is in compliance in all material respects with the applicable provisions of the Xxxxxxxx-Xxxxx Act and the applicable listing and corporate governance rules and regulations of Nasdaqthe TSX and NASDAQ.
(cd) The Company has established and maintains disclosure controls and procedures required by Rule 13a-15 or 15d-15 under the U.S. Exchange Act. Such disclosure controls and procedures are designed effective to ensure provide reasonable assurance that information required to be disclosed by the Company in its filings with the SEC under the Exchange Act is recorded and reported on a timely basis to the individuals responsible for the preparation of the Company’s filings with the SEC under the Exchange Actand other public disclosure documents. The Company maintains internal control over financial reporting (as defined in Rule 13a-15 or 15d-15, as applicable, under the U.S. Exchange Act). Such internal control over financial reporting is designed to provide effective in providing reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with GAAP. The Company has disclosed, based on the most recent evaluation of its Chief Executive Officer GAAP and its Chief Financial Officer prior includes policies and procedures that (i) pertain to the date maintenance of this Agreement, to records that in reasonable detail accurately and fairly reflect the Company’s auditors transactions and dispositions of the audit committee assets of the Company’s Board of Directors (x) any significant deficiencies and material weaknesses in the design or operation of its internal controls over financial reporting that are reasonably likely to adversely affect the Company’s ability to record, process, summarize and report financial information and (y) any fraud, whether or not material, that involves management or other employees who have a significant role in the Company’s internal control over financial reporting. The Company has made available prior to the date of this Agreement to Parent (I) either materials relating to or a summary of any disclosure of matters described in clauses (x) or (y) in the preceding sentence made by management of the Company to its auditors and audit committee on or after the Applicable Date and prior to the date of this Agreement and (II) any material communication on or after the Applicable Date and prior to the date of this Agreement made by management of the Company or its auditors to the audit committee as required by the listing standards of Nasdaq, the audit committee’s charter or professional standards of the Public Company Accounting Oversight Board. Since the Applicable Date and prior to the date of this Agreement, no complaints from any source regarding a material violation of accounting procedures, internal accounting controls or auditing matters or compliance with Law, including from Company Employees regarding questionable accounting, auditing or legal compliance matters have, to the Knowledge of the Company, been received by the Company.
(d) Each of the consolidated balance sheets included in or incorporated by reference into the Company Reports (including the related notes and schedules) fairly presents or, in the case of Company Reports filed after the date of this Agreement, will fairly present, in each case, in all material respects, the consolidated financial position of the Company and its Subsidiaries, as of the date of such balance sheet, and each of the consolidated statements of operations, cash flows and changes in stockholders’ equity (deficit) included in or incorporated by reference into the Company Reports (including any related notes and schedules) fairly presents, or, in the case of Company Reports filed after the date of this Agreement, will fairly present, in each case, in all material respects, the results of operations, retained earnings (loss) and changes in financial position, as the case may be, of the Company and its Subsidiaries for the periods set forth therein (subject, in the case of unaudited statements, to notes and normal year-end audit adjustments that are not or will not be material in amount or effect), in each case in accordance with GAAP consistently applied during the periods involved, except as may be noted therein or in the notes thereto.
(e) Neither the Company nor any of its Subsidiaries has incurred any Indebtedness, or issued or sold any debt securities or rights to acquire any debt security of the Company or any of its Subsidiaries, the terms of which, or the terms of any instrument under which such Indebtedness, debt securities or rights were issued, requires the public listing of such Indebtedness, debt securities or rights or the maintenance by the Company or any of its Subsidiaries of registration under the Exchange Act.,
Appears in 2 contracts
Samples: Arrangement Agreement (Unitedhealth Group Inc), Arrangement Agreement (Catamaran Corp)
Company Reports; Financial Statements. (a) The Company has filed or furnished, as applicable, on a timely basis, basis all forms, statements, certifications, reports and documents required to be filed or furnished by it with or to the SEC pursuant to the Exchange Act or the Securities Act since June 30, 2014 31 December 2010 (the “Applicable Date”) (the forms, statements, reports and documents filed with or furnished to the SEC since the Applicable Date and those filed with or furnished to the SEC subsequent to the date of this AgreementDate, in each case as amendedincluding any amendments thereto, the “Company Reports”). Each of the Company Reports, at the time of its filing or being furnished complied or, if not yet filed or furnished, will comply or if amended or superseded by a subsequent filing prior to the date hereof, as of the date of such amendment or superseding filing, complied as to form in all material respects with the applicable requirements of the Securities Act, the Exchange Act and the Xxxxxxxx-Xxxxx Act of 2002 (the “Xxxxxxxx-Xxxxx Act”), and any rules and regulations promulgated thereunder applicable to the Company Reports. As of their respective dates (or, if amended prior to the date of this Agreement, as of the date of such amendment)filing dates, the Company Reports did not, and any Company Reports filed with or furnished to the SEC subsequent to the date of this Agreement will not, not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements made therein, in light of the circumstances in which they were made, not misleading, except to the extent that the information in such Company Report has been amended or superseded by a later Company Report filed prior to the date hereof. Each of the principal executive officer and the principal financial officer of the Company (or each former principal executive officer and each former principal financial officer of the Company, as applicable) has made all certifications required by Rule 13a-14 or 15d-14 under the Exchange Act and Sections 302 and 906 of the Xxxxxxxx-Xxxxx Act with respect to the Company Reports, and, to the knowledge of the Company, the statements contained in such certifications are true and accurate in all material respects. For purposes of this clause 1.4, “principal executive officer” and “principal financial officer” shall have the meanings given to such terms in the Xxxxxxxx-Xxxxx Act.
(b) The Company is in compliance in all material respects with the applicable listing and corporate governance rules and regulations of Nasdaqthe NASDAQ Stock Market. Except as permitted by the Exchange Act, including Sections 13(k)(2) and (3) or rules of the SEC, since the enactment of the Xxxxxxxx-Xxxxx Act, neither the Company nor any of its affiliates has made, arranged or modified (in any material way) any extensions of credit in the form of a personal loan to any executive officer or director of the Company.
(c) The Company maintains a system of disclosure controls and procedures required by Rule 13a-15 13a-15(e) or 15d-15 15d-15(e) under the Exchange Act. Such disclosure controls and procedures are designed to ensure that all material information required to be disclosed by the Company in its filings with the SEC under the Exchange Act is recorded and reported on a timely basis within the time periods specified in the rules and forms of the SEC, and that all such information is communicated to the individuals responsible for the preparation of the Company’s filings with the SEC under the Exchange Actmanagement as appropriate to allow timely decisions regarding such required disclosure. The Company maintains a system of internal control controls over financial reporting (as defined in Rule 13a-15 13a-15(f) or 15d-1515d-15(f), as applicable, under the Exchange Act). Such internal control controls over financial reporting is designed are sufficient to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with US GAAP and includes policies and procedures that (i) pertain to the maintenance of records that in reasonable detail accurately and fairly reflect the transactions and dispositions of the assets of the Company, (ii) provide reasonable assurance that transactions are recorded as necessary to permit preparation of financial statements in accordance with US GAAP, and that receipts and expenditures of the Company are being made only in accordance with authorisations of management and directors of the Company, and (iii) provide reasonable assurance regarding prevention or timely detection of unauthorised acquisition, use or disposition of the Company’s assets that would have a material effect on its financial statements. The Company has disclosed, based on the most recent evaluation of its Chief Executive Officer chief executive officer and its Chief Financial Officer chief financial officer prior to the date of this Agreementhereof, to the Company’s auditors and the audit committee of the Company’s Company Board of Directors (xthe “Company Audit Committee”) (A) any “significant deficiencies deficiencies” and “material weaknesses weaknesses” (each as defined in Public Company Accounting Oversight Board Auditing Standard 2, as in effect on the date of this Agreement) in the design or operation of its internal controls over financial reporting that are reasonably likely to adversely affect in any material respect the Company’s ability to record, process, summarize summarise and report financial information and has identified for the Company’s auditors and Company Audit Committee any such material weaknesses and (yB) any fraudfraud within their knowledge, whether or not material, that involves management or other employees who have a significant role in the Company’s internal control controls over financial reporting. The Company has made available prior to the date of this Agreement to Parent (I) either materials relating to or AMEC a summary of any such disclosure of matters described in clauses (x) or (y) in the preceding sentence made by management of to the Company to its Company’s auditors and audit committee on or after Company Audit Committee since the Applicable Date and prior to the date of this Agreement and (II) any material communication on or after the Applicable Date and prior to the date of this Agreement made by management of the Company or its auditors to the audit committee as required by the listing standards of Nasdaq, the audit committee’s charter or professional standards of the Public Company Accounting Oversight Board. Since the Applicable Date and prior to the date of this Agreement, no complaints from any source regarding a material violation of accounting procedures, internal accounting controls or auditing matters or compliance with Law, including from Company Employees regarding questionable accounting, auditing or legal compliance matters have, to the Knowledge of the Company, been received by the CompanyDate.
(d) Each of the consolidated balance sheets included financial statements contained in or incorporated by reference into the Company Reports (including the related notes and schedules) fairly presents or, in the case of Company Reports filed after the date of this Agreement, will fairly present, in each case, in all material respects, respects the consolidated financial position of the Company and its Subsidiaries, consolidated subsidiaries as of the its date of such balance sheet, and each of the consolidated statements results of operations, operations and cash flows and changes in stockholders’ equity (deficit) included in or incorporated by reference into the Company Reports (including any related notes and schedules) fairly presents, or, in the case of Company Reports filed after the date of this Agreement, will fairly present, in each case, in all material respects, the results of operations, retained earnings (loss) and changes in financial position, as the case may be, of the Company and its Subsidiaries such companies for the periods set forth therein (subject, in the case of unaudited statements, to notes and normal year-end audit adjustments that are not or will not be material in amount or effectadjustments), in each case in accordance with US GAAP consistently applied during the periods involved, except as may be noted therein or in the notes theretotherein.
(e) Neither Prior to the date hereof, the Company nor any has provided a true, correct and complete copy of its Subsidiaries has incurred any Indebtedness, or issued or sold any debt securities or rights to acquire any debt security the audited statutory accounts of the Company or any for the fiscal year ended 31 December 2012 and such statutory accounts have been prepared in accordance with applicable Laws. Since the date of its Subsidiariessuch statutory accounts, the terms Company has not suffered a capital loss within the meaning of which, or article 725 para. 1 of the terms Swiss Code of any instrument under which such Indebtedness, debt securities or rights were issued, requires Obligations and it is not over-indebted within the public listing meaning of such Indebtedness, debt securities or rights or article 725 para. 2 of the maintenance by the Company or any Swiss Code of its Subsidiaries of registration under the Exchange ActObligations.
Appears in 2 contracts
Samples: Implementation Agreement (Amec PLC), Implementation Agreement (Amec PLC)
Company Reports; Financial Statements. (a) The Company has made available to Novartis each registration statement, report, proxy statement or information statement filed or furnishedby it since December 31, 2004 (the “Audit Date”), including (x) the Company’s Annual Report on Form 10-K for the year ended December 31, 2004, and (y) the Company’s Quarterly Reports on Form 10-Q for the periods ended March 31, 2005 and June 30, 2005, each in the form (including exhibits, annexes and any amendments thereto) filed with the Securities and Exchange Commission (“SEC”), which, together with any such reports filed subsequent to the date hereof, are referred to as applicable, on a timely basis, the “Company Reports”. The Company has filed and furnished all forms, statements, certifications, reports and documents required to be filed or furnished by it with or to the SEC pursuant to the Exchange Act or the Securities Act applicable securities statutes, regulations, policies and rules since June 30January 1, 2014 (the “Applicable Date”) (the forms, statements, reports and documents filed with or furnished to the SEC since the Applicable Date and those filed with or furnished to the SEC subsequent to the date of this Agreement, in each case as amended, the “2004. The Company Reports”). Each of the Company Reports, at the time of its filing or being furnished complied or, if not yet filed or furnished, will comply Reports were prepared in all material respects in accordance with the applicable requirements of the Securities Act, Act and the Exchange Act and complied in all material respects with the Xxxxxxxx-Xxxxx Act of 2002 (the “Xxxxxxxx-Xxxxx Act”), and any rules and regulations promulgated thereunder then applicable to the Company Reportsaccounting standards. As of their respective dates (orand, if amended prior to the date of this Agreementamended, as of the date of such amendment), ) the Company Reports did not, and any Company Reports filed with or furnished to the SEC subsequent to the date of this Agreement will not, contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements made therein, in light of the circumstances in which they were made, not misleading.
(b) The Company is in compliance in all material respects with the applicable listing and corporate governance rules and regulations of Nasdaq.
(c) The Company maintains disclosure controls and procedures required by Rule 13a-15 or 15d-15 under the Exchange Act. Such disclosure controls and procedures are designed to ensure that information required to be disclosed by the Company in its filings with the SEC under the Exchange Act is recorded and reported on a timely basis to the individuals responsible for the preparation of the Company’s filings with the SEC under the Exchange Act. The Company maintains internal control over financial reporting (as defined in Rule 13a-15 or 15d-15, as applicable, under the Exchange Act). Such internal control over financial reporting is designed to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with GAAP. The Company has disclosed, based on the most recent evaluation of its Chief Executive Officer and its Chief Financial Officer prior to the date of this Agreement, to the Company’s auditors and the audit committee of the Company’s Board of Directors (x) any significant deficiencies and material weaknesses in the design or operation of its internal controls over financial reporting that are reasonably likely to adversely affect the Company’s ability to record, process, summarize and report financial information and (y) any fraud, whether or not material, that involves management or other employees who have a significant role in the Company’s internal control over financial reporting. The Company has made available prior to the date of this Agreement to Parent (I) either materials relating to or a summary of any disclosure of matters described in clauses (x) or (y) in the preceding sentence made by management of the Company to its auditors and audit committee on or after the Applicable Date and prior to the date of this Agreement and (II) any material communication on or after the Applicable Date and prior to the date of this Agreement made by management of the Company or its auditors to the audit committee as required by the listing standards of Nasdaq, the audit committee’s charter or professional standards of the Public Company Accounting Oversight Board. Since the Applicable Date and prior to the date of this Agreement, no complaints from any source regarding a material violation of accounting procedures, internal accounting controls or auditing matters or compliance with Law, including from Company Employees regarding questionable accounting, auditing or legal compliance matters have, to To the Knowledge of the Company, been received by there are no outstanding comment letters or requests for information from the CompanySEC with respect to any Company Report.
(db) Each of the consolidated balance sheets included in or incorporated by reference into the Company Reports (including the related notes and schedules) filed on or prior to the date of this Agreement fairly presents orpresents, in the case of Company Reports and if filed after the date of this Agreement, will fairly present, in each case, in all material respects, the consolidated financial position of the Company and its Subsidiaries, as of the date of such balance sheetits date, and each of the consolidated statements of operations, cash flows and of changes in stockholders’ equity (deficit) included in or incorporated by reference into the Company Reports (including any related notes and schedules) fairly presents, or, in the case of Company Reports and if filed on or after the date of this Agreement, will fairly present, in each case, in all material respects, the results of operations, retained earnings (loss) and changes in financial position, as the case may be, of the Company and its Subsidiaries for the periods set forth therein (subject, in the case of unaudited statements, to notes and normal year-end audit adjustments that are not or will not be material in amount or effectadjustments), in each case in accordance with GAAP U.S. generally accepted accounting principles (“GAAP”) consistently applied during the periods involved, except as may be noted therein or therein. The Company has designed and maintains a system of internal controls over financial reporting (as defined in Rules 13a-15(f) and 15d-15(f) of the Exchange Act) sufficient to provide reasonable assurances regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles. The Company (A) has designed and maintains disclosure controls and procedures (as defined in Rules 13a-15(e) and 15d-15(e) of the Exchange Act) to ensure that material information required to be disclosed by the Company in the notes theretoreports that it files or submits under the Exchange Act is recorded, processed, summarized and reported within the time periods specified in the SEC’s rules and forms and is accumulated and communicated to the Company’s management as appropriate to allow timely decisions regarding required disclosure, and (B) has disclosed, based on its most recent evaluation of such disclosure controls and procedures prior to the date hereof, to the Company’s auditors and the audit committee of the Company Board (1) any significant deficiencies and material weaknesses in the design or operation of internal controls over financial reporting that are reasonably likely to adversely affect in any material respect the Company’s ability to record, process, summarize and report financial information and (2) any fraud, whether or not material, that involves management or other employees who have a significant role in the Company’s internal controls over financial reporting.
(ec) Neither Since December 31, 2004, (x) through the date hereof, to the Knowledge of the Company neither the Company nor any of its Subsidiaries nor any director, officer, employee, auditor, accountant or representative of the Company or any of its Subsidiaries has incurred received or otherwise had or obtained knowledge of any Indebtednessmaterial complaint, allegation, assertion or issued claim, whether written or sold oral, regarding the accounting or auditing practices, procedures, methodologies or methods of the Company or any debt securities of its Subsidiaries or rights to acquire their respective internal accounting controls, including any debt security material complaint, allegation, assertion or claim that the Company or any of its Subsidiaries has engaged in questionable accounting or auditing practices, and (y) no attorney representing the Company or any of its Subsidiaries, the terms of which, whether or the terms of any instrument under which such Indebtedness, debt securities or rights were issued, requires the public listing of such Indebtedness, debt securities or rights or the maintenance not employed by the Company or any of its Subsidiaries Subsidiaries, has reported evidence of registration under a material violation of securities Laws, breach of fiduciary duty or similar violation by the Exchange ActCompany or any of its officers, directors, employees or agents to the Company Board or any committee thereof or to the General Counsel or Chief Executive Officer of the Company.
Appears in 2 contracts
Samples: Merger Agreement (Chiron Corp), Agreement and Plan of Merger (Novartis Ag)
Company Reports; Financial Statements. (a) The Company has timely filed or furnished, as applicable, on a timely basis, all forms, statements, certifications, reports and documents Company Reports required to be filed or furnished by it with or to the SEC pursuant to the Exchange Act on or the Securities Act since June 30, 2014 (the “Applicable Date”) (the forms, statements, reports and documents filed with or furnished to the SEC since the Applicable Date and those filed with or furnished to the SEC subsequent prior to the date of this Agreement, in each case as amended, hereof and will timely file all Company Reports required to be filed with the “Company Reports”)SEC after the date hereof and prior to the Effective Time. Each of Company Report has complied, or will comply, as the Company Reportscase may be, at the time of its filing or being furnished complied or, if not yet filed or furnished, will comply in all material respects with the applicable requirements of the Securities Act, the Exchange Act and the Xxxxxxxx-Xxxxx Act of 2002 (the “Xxxxxxxx-Xxxxx Act”), and any rules and regulations promulgated thereunder applicable to thereunder, or the Company Reports. As of their respective dates (orExchange Act, if amended prior to and the rules and regulations promulgated thereunder, as applicable, each as in effect on the date so filed. None of this Agreement, as of the date of such amendment), the Company Reports did not(including any financial statements or schedules included or incorporated by reference therein) contained or will contain, as the case may be, when filed (and, in the case of registration statements and any Company Reports filed with or furnished to proxy statements, on the SEC subsequent to dates of effectiveness and the date dates of this Agreement will notmailing, contain respectively) any untrue statement of a material fact or omit omitted or omits or will omit, as the case may be, to state a material fact required to be stated or incorporated by reference therein or necessary to make the statements made therein, in the light of the circumstances in under which they were or are made, not misleading. No executive officer of the Company has failed in any respect to make the certifications required of him or her under Section 302, 404 or 906 of the Xxxxxxxx-Xxxxx Act with respect to any Company Report. The Company has no outstanding (nor has arranged or modified since the enactment of the Xxxxxxxx-Xxxxx Act) “extensions of credit” (within the meaning of Section 402 of the Xxxxxxxx-Xxxxx Act) to any directors or executive officers (as defined in Rule 3b-7 under the Exchange Act) of the Company. Between December 31, 2009 and the date hereof, no event has occurred (other than the execution of this Agreement) that requires or will require the Company to file a Form 8-K with the SEC that has not been filed prior to the date hereof by the Company.
(b) The Company has made available (including via the SEC’s XXXXX system, as applicable) to Parent all of the Company Financial Statements. All of the Company Financial Statements complied as to form in all material respects with the published rules and regulations of the SEC with respect thereto as of their respective dates, have been prepared in accordance with GAAP applied on a consistent basis throughout the periods involved (except as may be indicated in the notes thereto) and fairly present in all material respects the consolidated financial position of the Company at the respective dates thereof and the consolidated results of its operations and changes in cash flows for the periods indicated (subject, in the case of unaudited statements, to normal year-end audit adjustments consistent with GAAP).
(c) The Company has implemented and maintains a system of internal accounting controls sufficient to provide reasonable assurances (i) regarding the reliability of financial reporting and the preparation of financial statements in accordance with GAAP (ii) that receipts and expenditures of the Company are being made only in accordance with authorizations of management and the Company Board of Directors, and (iii) regarding prevention or timely detection of the unauthorized acquisition, use or disposition of the Company’s assets that could have a material effect on the Company’s financial statements. The Company has (i) implemented and maintains disclosure controls and procedures (as defined in Rule 13a-15(e) of the Exchange Act) to ensure that information relating to the Company that is required to be disclosed in any Company Report, is reported within the time periods specified in the rules and forms of the SEC, 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 principal executive officer and principal financial officer (each as defined in Item 402(a)(3) of Regulation S-K under the Exchange Act) of the Company required under the Exchange Act with respect to such reports and (ii) disclosed, based on its most recent evaluation prior to the date hereof, to the Company’s outside auditors and the audit committee of the Company Board of Directors (A) any significant deficiencies and material weaknesses in the design or operation of internal controls over financial reporting (as defined in Rule 13a-15(f) of the Exchange Act) which are reasonably likely to adversely affect the Company’s ability to record, process, summarize and report financial information and (B) any fraud, whether or not material, that involves management or other employees who have a significant role in the Company’s internal controls over financial reporting. These disclosures were made in writing by management to the Company’s auditors and the audit committee of the Company’s Board of Directors and a copy has previously been made available to Parent. There is no reason to believe that the Company’s outside auditors and its principal executive officer and principal financial officer (each as defined in Item 402(a)(3) of Regulation S-K under the Exchange Act) will not be able to give the certifications and attestations required for future reports filed under the Exchange Act, pursuant to the rules and regulations adopted pursuant to Section 404 of the Xxxxxxxx-Xxxxx Act, without qualification, when due.
(d) Since December 31, 2009, (i) to the Knowledge of the Company, no director, officer, employee, auditor, accountant or representative of the Company has received or otherwise had or obtained knowledge of any material complaint, allegation, assertion or claim, whether written or oral, regarding the accounting or auditing practices, procedures, methodologies or methods of the Company or its internal accounting controls, including any material complaint, allegation, assertion or claim that the Company has engaged in improper accounting or auditing practices, and (ii) no attorney representing the Company, whether or not employed by the Company, has reported evidence of a material violation of securities Laws, breach of fiduciary duty or similar violation by the Company or any of its officers, directors, employees or agents to the Company Board of Directors or any committee thereof or to any director or officer of the Company.
(e) There are no Liabilities of the Company of any kind whatsoever, whether or not accrued and whether or not contingent or absolute, that are material to the Company and that are not set forth on the Company Financial Statements, other than (i) Liabilities incurred on behalf of the Company under this Agreement and (ii) Liabilities incurred in the ordinary course of business consistent with past practice since December 31, 2009, none of which would reasonably be expected to have a Company Material Adverse Effect.
(f) The Company is in compliance in all material respects with the applicable listing and corporate governance rules and regulations of Nasdaq.
(cg) The Company maintains disclosure controls is not a party to, and procedures required by Rule 13a-15 has no commitment to become a party to, any joint venture, off balance sheet partnership or 15d-15 under the Exchange Act. Such disclosure controls and procedures are designed any similar contract (including any contract or arrangement relating to ensure that information required to be disclosed by the Company in its filings with the SEC under the Exchange Act is recorded and reported on a timely basis to the individuals responsible for the preparation of any transaction or relationship between or among the Company’s filings with , on the SEC under one hand, and any unconsolidated Affiliate, including any structured finance, special purpose or limited purpose entity or Person, on the Exchange Act. The Company maintains internal control over financial reporting other hand, or any “off balance sheet arrangements” (as defined in Rule 13a-15 or 15d-15, as applicable, Item 303(a) of Regulation S-K under the Exchange Act). Such internal control over financial reporting ), where the result, purpose or intended effect of such contract is designed to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with GAAP. The Company has disclosed, based on the most recent evaluation of its Chief Executive Officer and its Chief Financial Officer prior to the date of this Agreement, to the Company’s auditors and the audit committee of the Company’s Board of Directors (x) any significant deficiencies and material weaknesses in the design or operation of its internal controls over financial reporting that are reasonably likely to adversely affect the Company’s ability to record, process, summarize and report financial information and (y) any fraud, whether or not material, that involves management or other employees who have a significant role in the Company’s internal control over financial reporting. The Company has made available prior to the date of this Agreement to Parent (I) either materials relating to or a summary avoid disclosure of any disclosure of matters described in clauses (x) material transaction involving, or (y) in the preceding sentence made by management of the Company to its auditors and audit committee on or after the Applicable Date and prior to the date of this Agreement and (II) any material communication on or after the Applicable Date and prior to the date of this Agreement made by management of the Company or its auditors to the audit committee as required by the listing standards of NasdaqLiabilities of, the audit committee’s charter or professional standards of the Public Company Accounting Oversight Board. Since the Applicable Date and prior to the date of this Agreement, no complaints from any source regarding a material violation of accounting procedures, internal accounting controls or auditing matters or compliance with Law, including from Company Employees regarding questionable accounting, auditing or legal compliance matters have, to the Knowledge of the Company, been received by the Company.
(d) Each of the consolidated balance sheets included in or incorporated by reference into the Company Reports (including the related notes and schedules) fairly presents or, in the case of Company Reports filed after the date of this Agreement, will fairly present, in each case, in all material respects, the consolidated financial position of the Company and its Subsidiaries, as of the date of such balance sheet, and each of the consolidated statements of operations, cash flows and changes in stockholders’ equity (deficit) included in or incorporated by reference into the Company Reports (including any related notes and schedules) fairly presents, or, in the case of Company Reports filed after the date of this Agreement, will fairly present, in each case, in all material respects, the results of operations, retained earnings (loss) and changes in financial position, as the case may be, of the Company and its Subsidiaries for the periods set forth therein (subject, in the case of unaudited statements, to notes and normal year-end audit adjustments that are not or will not be material in amount or effect), in each case in accordance with GAAP consistently applied during the periods involved, except as may be noted therein or in the notes theretoReports.
(e) Neither the Company nor any of its Subsidiaries has incurred any Indebtedness, or issued or sold any debt securities or rights to acquire any debt security of the Company or any of its Subsidiaries, the terms of which, or the terms of any instrument under which such Indebtedness, debt securities or rights were issued, requires the public listing of such Indebtedness, debt securities or rights or the maintenance by the Company or any of its Subsidiaries of registration under the Exchange Act.
Appears in 2 contracts
Samples: Merger Agreement (Emergent BioSolutions Inc.), Merger Agreement (Trubion Pharmaceuticals, Inc)
Company Reports; Financial Statements. (a) The Company has filed or furnished, as applicable, on a timely basis, all forms, statements, certifications, reports and documents required to be filed or furnished by it with or to the SEC pursuant to the Exchange Act Act, or the Securities Act Act, since June 30December 31, 2014 (the “Applicable Date”) (the forms, statements, certifications, reports and documents filed with or furnished to the SEC since the Applicable Date and those filed with or furnished to the SEC subsequent to the date of this Agreement, in each case as amendedincluding any amendments thereto, the “Company Reports”). Each of the Company Reports, at the time of its filing or being furnished complied or, if not yet filed or furnished, will comply in all material respects with the applicable requirements of the Securities Act, the Exchange Act and the Xxxxxxxx-Xxxxx Act of 2002 (the “Xxxxxxxx-Xxxxx Act”), and any rules and regulations promulgated thereunder applicable to the Company Reports. As of their respective dates (or, if amended prior to the date of this Agreement, as of the date of such amendment), the Company Reports did not, and any Company Reports filed with or furnished to the SEC subsequent to the date of this Agreement will not, contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements made therein, in light of the circumstances in which they were made, not misleading.
(b) The Company is in compliance in all material respects with the applicable listing and corporate governance rules and regulations of Nasdaqthe NYSE. Except as permitted by the Exchange Act, including Sections 13(k)(2) and (3), or rules of the SEC, since the enactment of the Xxxxxxxx-Xxxxx Act, neither the Company nor any of its Affiliates has made, arranged or modified (in any material way) any extensions of credit in the form of a personal loan to any executive officer or director of the Company.
(c) The Company has established and maintains a system of disclosure controls and procedures as required by Rule 13a-15 or 15d-15 under the Exchange Act. Such disclosure controls and procedures are designed to ensure that material information required to be disclosed by the Company in its filings with the SEC periodic reports filed or submitted under the Exchange Act is recorded recorded, processed, summarized and reported on a timely basis to within the individuals responsible for time periods specified in the preparation rules and forms of the Company’s filings with the SEC under the Exchange ActSEC. The Company maintains internal control over all material financial reporting (as defined in Rule 13a-15 or 15d-15, as applicable, under the Exchange Act). Such internal control over material financial reporting is designed to provide effective in providing reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with GAAPGAAP in all material respects. The Company has disclosed, based on the most recent evaluation of its Chief Executive Officer chief executive officer and its Chief Financial Officer chief financial officer prior to the date of this Agreement, to the Company’s auditors and the audit committee of the Company’s Company Board of Directors (xi) any significant deficiencies and material weaknesses in the design or operation of its internal controls over financial reporting that are reasonably likely to adversely affect the Company’s ability to record, process, summarize and report financial information and has identified for the Company’s auditors and audit committee of the Company Board any material weaknesses in internal control over financial reporting and (yii) any fraud, whether or not material, that involves management or other employees who have a significant role in the Company’s internal control over financial reporting. The Company has made available prior to the date of this Agreement to Parent (I) either materials relating to or a summary of any disclosure of matters described in clauses (x) or (y) in the preceding sentence made by management of the Company to its auditors and audit committee on or after the Applicable Date and prior to the date of this Agreement and (II) any material communication on or after the Applicable Date and prior to the date of this Agreement made by management of the Company or its auditors to the audit committee as required by the listing standards of Nasdaq, the audit committee’s charter or professional standards of the Public Company Accounting Oversight Board. Since the Applicable Date and prior to the date of this AgreementDate, no material complaints from any source regarding a material violation of accounting proceduresaccounting, internal accounting controls or auditing matters or compliance with Lawmatters, including and no concerns from Company Employees employees regarding questionable accountingaccounting or auditing matters, auditing or legal compliance matters have, to the Knowledge of the Company, have been received by the Company.
(d) Each of the consolidated balance sheets included in or incorporated by reference into the Company Reports (including the related notes and schedules) fairly presents in all material respects, or, in the case of Company Reports filed after the date of this Agreement, will fairly present, in each case, present in all material respects, respects the consolidated financial position of the Company and its Subsidiaries, Subsidiaries as of the its date of such balance sheet, and each of the consolidated balance sheets, consolidated statements of operationscomprehensive income, cash flows and consolidated changes in stockholders’ equity (deficit) and consolidated statements of cash flows included in or incorporated by reference into the Company Reports (including any related notes and schedules) fairly presentspresents in all material respects, or, or in the case of Company Reports filed after the date of this Agreement, will fairly present, in each case, present in all material respects, respects the consolidated results of operations, retained earnings (loss) and changes in financial position, as the case may be, of the Company and its Subsidiaries for the periods set forth therein (subject, in the case of unaudited statements, to the absence of notes and normal year-end audit adjustments that are not or will not be material in amount or effect), in each case in accordance with all applicable rules and regulations of the SEC and GAAP consistently applied during the periods involved, except as may be noted therein or in the notes thereto.
(e. There are no material off-balance sheet arrangements of any type required to be disclosed pursuant to Item 303(a)(4) Neither of Regulation S-K that have not been so described in the Company Reports filed prior to the date hereof nor any of its Subsidiaries has incurred obligations to enter into any Indebtedness, or issued or sold any debt securities or rights to acquire any debt security such arrangements. As of the Company date of this Agreement, there are no material outstanding or any of unresolved comments in comment letters received from the SEC or its Subsidiaries, the terms of which, or the terms of any instrument under which such Indebtedness, debt securities or rights were issued, requires the public listing of such Indebtedness, debt securities or rights or the maintenance by the Company or any of its Subsidiaries of registration under the Exchange Actstaff.
Appears in 2 contracts
Samples: Merger Agreement (Straight Path Communications Inc.), Merger Agreement (Straight Path Communications Inc.)
Company Reports; Financial Statements. (a) The filings required to be made by Company has since January 1, 2006 under the Securities Act and the Exchange Act have been filed or furnishedwith the SEC and under the SRC have been filed with the PSEC, as applicablewith copy to the PSE, on a timely basis, including all forms, statements, certificationsreports, reports agreements (oral or written) and documents required all documents, exhibits, amendments and supplements appertaining thereto, and complied, as of their respective dates or as of the date of final amendment, as applicable, and in the case of such filings made after the date hereof will comply, in all material respects with all applicable requirements of applicable Law. Company has made available (except to be the extent available through the SEC’s Electronic Data Gathering, Analysis and Retrieval system (“XXXXX”), to Purchaser each registration statement, report, proxy statement and information statement filed or furnished by it with or to the SEC pursuant to the Exchange Securities Act or the Securities Exchange Act since June 30, 2014 (and with the “Applicable Date”) (the forms, statements, reports and documents filed with or furnished PSEC pursuant to the SEC since the Applicable Date and those filed SRC, with or furnished copy to the SEC subsequent to the date of this AgreementPSE since January 1, in each case as amended2006 (all such filings, including all amendments and supplements thereto, the “Company Reports”). Each Company is a “foreign private issuer” as such term is defined under Rule 3b-4 of the Exchange Act. None of the Company Reports, at Reports (in the time case of its filing or being furnished complied or, if not yet Company Reports filed or furnished, will comply in all material respects with the applicable requirements of pursuant to the Securities Act, the Exchange Act and the Xxxxxxxx-Xxxxx Act of 2002 (the “Xxxxxxxx-Xxxxx Act”), and any rules and regulations promulgated thereunder applicable to the Company Reports. As of their respective dates (or, if amended prior to the date of this Agreement, as of their effective dates, contained, nor in the date case of such amendment), the Company Reports did not, and any Company Reports filed with or furnished to the SEC subsequent to after the date of this Agreement hereof will notcontain, contain any untrue statement of a material fact or omit omitted to state a material fact required to be stated therein or necessary to make the statements made therein not misleading. None of the Company Reports (in the case of Company Reports filed pursuant to the Exchange Act) as of the respective dates filed with the SEC or first mailed to shareholders, as applicable, contained, nor in the case of such Company Reports filed after the date hereof will contain, any untrue statement of a material fact or omitted to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. None of the Company Reports (in the case of Company Reports filed with the PSEC or PSE) as of the respective dates filed with the PSEC, PSE or first mailed to shareholders, as applicable, contained, nor in the case of such Company Reports filed after the date hereof will contain, any untrue statement of material fact or omitted or will omit, as applicable, to state any material fact necessary in order to make the statements therein, in light of the circumstances in under which they were made, not misleading.
(b) . The consolidated financial statements of Company is and its Subsidiaries included in compliance or incorporated by reference into the Company Reports comply, and in the case of consolidated financial statements included in or incorporated by reference into the Company Reports filed after the date hereof will comply, as to form in all material respects with the applicable listing accounting requirements and corporate governance published rules and regulations of Nasdaq.
(c) The Company maintains disclosure controls and procedures required by Rule 13a-15 or 15d-15 under the Exchange Act. Such disclosure controls and procedures are designed to ensure that information required to be disclosed by the Company in its filings with the SEC under the Exchange Act is recorded and reported on a timely basis to the individuals responsible for the preparation of the Company’s filings with the SEC under the Exchange Act. The Company maintains internal control over financial reporting (as defined in Rule 13a-15 or 15d-15PSEC, as applicable, under the Exchange Act)with respect thereto. Such internal control over financial reporting is designed to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with GAAP. The Company has disclosed, based on the most recent evaluation of its Chief Executive Officer and its Chief Financial Officer prior to the date of this Agreement, to the Company’s auditors and the audit committee of the Company’s Board of Directors (x) any significant deficiencies and material weaknesses in the design or operation of its internal controls over financial reporting that are reasonably likely to adversely affect the Company’s ability to record, process, summarize and report financial information and (y) any fraud, whether or not material, that involves management or other employees who have a significant role in the Company’s internal control over financial reporting. The Company has made available prior to the date of this Agreement to Parent (I) either materials relating to or a summary of any disclosure of matters described in clauses (x) or (y) in the preceding sentence made by management of the Company to its auditors and audit committee on or after the Applicable Date and prior to the date of this Agreement and (II) any material communication on or after the Applicable Date and prior to the date of this Agreement made by management of the Company or its auditors to the audit committee as required by the listing standards of Nasdaq, the audit committee’s charter or professional standards of the Public Company Accounting Oversight Board. Since the Applicable Date and prior to the date of this Agreement, no complaints from any source regarding a material violation of accounting procedures, internal accounting controls or auditing matters or compliance with Law, including from Company Employees regarding questionable accounting, auditing or legal compliance matters have, to the Knowledge of the Company, been received by the Company.
(d) Each of the consolidated balance sheets included in or incorporated by reference into the Company Reports (including the related notes and schedules) fairly presents orpresents, and in the case of consolidated balance sheets included in or incorporated by reference into Company Reports filed after the date of this Agreement, hereof will fairly present, in each casefairly, in all material respects, the consolidated financial position of the Company and its Subsidiaries, Subsidiaries as of the date of such balance sheetits date, and each of the consolidated statements of operations, income and consolidated statements of cash flows and changes in stockholders’ equity (deficit) included in or incorporated by reference into the Company Reports (including any related notes and schedules) fairly presents, or, and in the case of consolidated statements of income and consolidated statements of cash flows included in or incorporated by reference into Company Reports filed after the date of this Agreement, hereof will fairly present, in each casefairly, in all material respects, the results of operations, retained earnings (loss) and changes in financial position, as the case may be, of the Company and its Subsidiaries for the periods set forth therein (subject, in the case of unaudited statements, to the absence of notes and normal year-end audit adjustments that are not or will not be material in amount or effectadjustments), in each case in accordance with U.S. GAAP with respect to any Company Reports filed under the Securities Act or Exchange Act with the SEC or with international general accepted accounting principles (“International GAAP”) with respect to any Company Reports filed under the SRC with the PSEC, with copy to the PSE, consistently applied during the periods involved, except as may be noted therein or therein. Company is in compliance in all material respects with the notes thereto.
applicable listing and corporate governance rules and regulations of NASDAQ and the PSE. Company’s disclosure controls and procedures (eas defined in sections 13a-15(e) Neither the Company nor any and 15d-15(e) of its Subsidiaries has incurred any Indebtedness, or issued or sold any debt securities or rights to acquire any debt security of the Company or any of its Subsidiaries, the terms of which, or the terms of any instrument under which such Indebtedness, debt securities or rights were issued, requires the public listing of such Indebtedness, debt securities or rights or the maintenance by the Company or any of its Subsidiaries of registration under the Exchange Act) effectively enable Company to comply with, and the appropriate officers of Company to make all certifications required under, the United States Xxxxxxxx-Xxxxx Act of 2002 and the regulations promulgated thereunder (the “Xxxxxxxx-Xxxxx Act”) and otherwise with applicable Law.
Appears in 2 contracts
Samples: Acquisition Agreement (Ayala Corp), Acquisition Agreement (eTelecare Global Solutions, Inc.)
Company Reports; Financial Statements. (a) The Company has timely filed or furnished, as applicable, on a timely basis, all forms, statements, certifications, reports and documents Company Reports required to be filed or furnished by it with or to the SEC pursuant to the Exchange Act or the Securities Act since June 30, 2014 (the “Applicable Date”) (the forms, statements, reports and documents filed with or furnished to the SEC since the Applicable Date and those filed with or furnished to the SEC subsequent to the date of this Agreement, in each case as amended, the “Company Reports”)SEC. Each of the Company Reports, at the time of its filing or being furnished Report has complied or, if not yet filed or furnished, will comply in all material respects with the applicable requirements of the Securities Act, the Exchange Act and the Xxxxxxxx-Xxxxx Act of 2002 (the “Xxxxxxxx-Xxxxx Exchange Act”), and any rules and regulations promulgated thereunder applicable to the Company Reports. As of their respective dates (oras applicable, if amended prior to each as in effect on the date so filed. None of this Agreement, as of the date of such amendment), the Company Reports did not(including any financial statements or schedules included or incorporated by reference therein) contained when filed (and, in the case of registration statements and any Company Reports filed with or furnished to proxy statements, on the SEC subsequent to dates of effectiveness and the date dates of this Agreement will notmailing, contain respectively) any untrue statement of a material fact or omit omitted or omits or will omit, as the case may be, to state a material fact required to be stated or incorporated by reference therein or necessary to make the statements made therein, in the light of the circumstances in under which they were or are made, not misleading. As of the date hereof, there are no material outstanding or unresolved comments received by the Company from the SEC with respect to any Company Reports. None of the Subsidiaries is required to file any form, report or other document with the SEC.
(b) The Company has made available (including via the SEC’s XXXXX system, as applicable) to Parent all of the Company Financial Statements. All of the Company Financial Statements comply, as of their respective dates of filing with the SEC, in all material respects with the applicable accounting requirements and the published rules and regulations of the SEC with respect thereto, and have been prepared in accordance with GAAP applied on a consistent basis throughout the periods involved (except as may be indicated in the notes thereto), and fairly present in all material respects the consolidated financial position of the Company and its Subsidiaries at the respective dates thereof and the consolidated results of its operations, changes in shareholders equity and cash flows for the periods indicated (subject, in the case of unaudited statements, to normal year-end audit adjustments consistent with GAAP).
(c) There are no Liabilities of the Company or any of its Subsidiaries that, if known, would be required by GAAP to be reflected on a consolidated balance sheet of the Company and its Subsidiaries (or in the notes thereto), other than (i) Liabilities disclosed and provided for in the Company Balance Sheet or in the notes thereto or in the Company’s consolidated balance sheet as at March 31, 2012 (or the notes thereto) included in the Company’s 10-Q filed prior to the date of this Agreement for the fiscal quarter ended Xxxxx 00, 0000, (xx) Liabilities incurred on behalf of the Company in connection with the transactions contemplated by this Agreement and (iii) Liabilities incurred in the ordinary course of business since March 31, 2012, none of which has had or reasonably would be expected to have, individually or in the aggregate, a Company Material Adverse Effect.
(d) Since January 1, 2010, the Company has been and is in compliance in all material respects with (A) the applicable provisions of the Sarbanes Oxley Act of 2002 and the rules and regulations promulgated thereunder and (B) the applicable listing and corporate governance rules and regulations of Nasdaqthe New York Stock Exchange.
(ce) The Company has established and maintains disclosure controls and procedures and internal controls over financial reporting (as such terms are defined in paragraphs (e) and (f), respectively, of Rule 13a-15 under the Exchange Act) as required by Rule 13a-15 or 15d-15 under the Exchange Act. Such The Company’s disclosure controls and procedures are designed to ensure that information required to be disclosed by in the Company in its filings with the SEC Company’s periodic reports filed or submitted under the Exchange Act is recorded recorded, processed, summarized and reported on a timely basis within the required time period and that all such information is accumulated and communicated to the individuals responsible for Company’s management as appropriate to allow timely decisions regarding required disclosure and to make the preparation certifications required pursuant to Section 302 and 906 of the Xxxxxxxx-Xxxxx Act of 2002, as amended. The Company’s management has completed an assessment of the effectiveness of the Company’s filings with the SEC under the Exchange Act. The Company maintains internal control controls over financial reporting (as defined in Rule 13a-15 or 15d-15compliance with the requirements of Section 404 of the Xxxxxxxx-Xxxxx Act of 2002, as applicableamended, under for the Exchange Act). Such internal control over financial reporting is designed to provide reasonable assurance regarding the reliability of financial reporting year ended December 31, 2011, and the preparation of financial statements for external purposes in accordance with GAAP. such assessment concluded that such controls were effective.
(f) The Company has disclosed, based on the most recent evaluation of its Chief Executive Officer and its Chief Financial Officer prior to the date of this Agreement, disclosed to the Company’s auditors and the audit committee of the Company’s Company Board of Directors Directors, based on its most recent evaluation prior to the date hereof, (xi) any significant deficiencies and material weaknesses in the design or operation of its internal controls over financial reporting that which are reasonably likely to adversely affect in any material respect the Company’s ability to record, process, summarize and report financial information and (yii) any fraud, whether or not material, that involves management or other employees who have a significant role in the Company’s internal control controls over financial reporting. The Company has made available prior to the date of this Agreement to Parent (I) either materials relating to or a summary of not received any disclosure of matters described in clauses (x) or (y) in the preceding sentence made by management of the Company to its auditors credible and audit committee on or after the Applicable Date and prior to the date of this Agreement and (II) any material communication on or after the Applicable Date and prior to the date of this Agreement made by management of the Company or its auditors to the audit committee as required by the listing standards of Nasdaqcomplaints since January 1, the audit committee’s charter or professional standards of the Public Company Accounting Oversight Board. Since the Applicable Date and prior to the date of this Agreement, no complaints from any source 2010 regarding a material violation of accounting proceduresaccounting, internal accounting controls or auditing matters or compliance with Lawmatters, including from Company Employees any such complaint regarding questionable accountingaccounting or auditing matters. Since January 1, auditing or legal compliance matters have2010, to the Knowledge none of the Company, been received by the Company.
(d) Each of the consolidated balance sheets included in or incorporated by reference into the Company Reports (including the related notes and schedules) fairly presents or, in the case of Company Reports filed after the date of this Agreement, will fairly present, in each case, in all material respects, the consolidated financial position independent public accountants of the Company and its Subsidiaries, or any Subsidiary has resigned or been dismissed as of the date of such balance sheet, and each of the consolidated statements of operations, cash flows and changes in stockholders’ equity (deficit) included in or incorporated by reference into the Company Reports (including any related notes and schedules) fairly presents, or, in the case of Company Reports filed after the date of this Agreement, will fairly present, in each case, in all material respects, the results of operations, retained earnings (loss) and changes in financial position, as the case may be, independent public accountants of the Company and its Subsidiaries for the periods set forth therein (subject, in the case or any Subsidiary as a result of unaudited statements, to notes and normal year-end audit adjustments that are not or will not be material in amount or effect), in each case in accordance with GAAP consistently applied during the periods involved, except as may be noted therein or in connection with any disagreement with the notes thereto.
(e) Neither Company or any Subsidiary on a matter of accounting principles or practices, financial statement disclosure or auditing scope or procedure. Since January 1, 2010, neither the Company nor any of its Subsidiaries has incurred made any Indebtedness, or issued or sold prohibited loans to any debt securities or rights to acquire any debt security executive officer of the Company or any of its Subsidiaries, the terms of which, or the terms of any instrument under which such Indebtedness, debt securities or rights were issued, requires the public listing of such Indebtedness, debt securities or rights or the maintenance by the Company or any of its Subsidiaries of registration (as defined in Rule 3b-7 under the Exchange Act) or director of the Company.
(g) As of the date hereof, the Company has not identified any material weaknesses in the design or operation of its internal controls over financial reporting.
Appears in 2 contracts
Samples: Merger Agreement (Genesee & Wyoming Inc), Merger Agreement (Railamerica Inc /De)
Company Reports; Financial Statements. (a) The Company has timely filed or furnished, as applicable, on a timely basiseach form, all formsproxy statement, statementscertification, certifications, reports report and documents other document required to be filed or furnished by it the Company with or to the SEC pursuant to the Exchange Act or the Securities Act since June 30July 1, 2014 2009 (the “Applicable Date”) (the formstogether with all exhibits and schedules thereto and all information incorporated therein by reference, statements, reports and documents filed with including any amendments or furnished to the SEC since the Applicable Date and those filed with or furnished to the SEC subsequent to the date of this Agreement, in each case as amendedsupplements thereto, the “Company Reports”). Each As of their respective dates, each of the Company Reports, at the time of its filing or being furnished Reports complied or, if not yet filed or furnished, will comply as to form in all material respects with the applicable requirements of the Securities Act, the Exchange Act and the Xxxxxxxx-Xxxxx Act of 2002 (the “Xxxxxxxx-Xxxxx Act”), and any rules and regulations promulgated thereunder applicable to the Company Reports. As of their respective dates (or, if amended prior to the date of this Agreementhereof, as of the date of such amendment, taking into the account the content of the amendment), the Company Reports did not, and any Company Reports filed with or furnished to the SEC subsequent to the date of this Agreement will not, not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements made therein, in light of the circumstances in which they were made, not misleading. The Company has made available to Parent correct and complete copies of all material correspondence between the SEC, on the one hand, and the Company and any of its Subsidiaries, on the other hand, occurring since the Applicable Date and prior to the date hereof (other than those that are publicly available). Except as set forth on Section 3.5(a) of the Company Disclosure Schedule, as of the date hereof, there are no outstanding or unresolved comments in comment letters from the SEC staff with respect to any of the Company Reports. Except as set forth on Section 3.5(a) of the Company Disclosure Schedule, to the Knowledge of the Company, as of the date hereof, none of the Company Reports is the subject of ongoing SEC review, outstanding SEC comment or outstanding SEC investigation.
(b) The Company is in compliance in all material respects with the applicable listing and corporate governance rules its Subsidiaries have established and regulations of Nasdaq.
(c) The Company maintains disclosure controls and procedures required by Rule 13a-15 or 15d-15 under the Exchange Act. Such disclosure controls and procedures are designed to ensure that information required to be disclosed by the Company in its filings with the SEC under the Exchange Act is recorded and reported on a timely basis to the individuals responsible for the preparation of the Company’s filings with the SEC under the Exchange Act. The Company maintains maintain internal control over financial reporting (as defined in and in accordance with the requirements of Rule 13a-15 or 15d-15, as applicable, under 13a-15(f) of the Exchange Act). Such internal control over financial reporting is designed ) effective to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with GAAP. The Company and its Subsidiaries have established and maintain disclosure controls and procedures (as defined in and in accordance with the requirements of Rule 13a-15(e) of the Exchange Act) effective to ensure that material information required to be disclosed by the Company is reported on a timely basis to the individuals responsible for the preparation of the Company’s filings with the SEC. The Company has disclosed, based on the most recent evaluation of its Chief Executive Officer chief executive officer and its Chief Financial Officer chief financial officer prior to the date of this Agreement, to the Company’s outside auditors and the audit committee of the Company’s Company Board of Directors (xA) any significant deficiencies and material weaknesses in the design or operation of its the Company’s internal controls control over financial reporting (as defined in Rule 13a-15(f) of the Exchange Act) that are reasonably likely to adversely affect the Company’s ability to record, process, summarize and report financial information and (yB) any fraud, whether or not material, fraud that involves management or other employees who have a significant role in the Company’s internal control over financial reporting. The Company has made available prior to the date of this Agreement to Parent (I) either materials relating to or a summary of any disclosure of matters described in clauses (x) or (y) in the preceding sentence made by management of the Company to its auditors and audit committee on or after the Applicable Date and prior to the date of this Agreement and (II) any material communication on or after the Applicable Date and prior to the date of this Agreement made by management of the Company or its auditors to the audit committee as required by the listing standards of Nasdaq, the audit committee’s charter or professional standards of the Public Company Accounting Oversight Board. Since the Applicable Date and prior to the date of this Agreement, no complaints from any source regarding a material violation of accounting procedures, internal accounting controls or auditing matters or compliance with Law, including from Company Employees regarding questionable accounting, auditing or legal compliance matters have, to the Knowledge of the Company, been received by the Company.
(dc) Each of the consolidated balance sheets financial statements of the Company and its Subsidiaries included in or incorporated by reference into the Company Reports (including the related notes and schedules) fairly presents or, in the case of Company Reports filed after the date of this Agreement, will fairly presentincluding, in each case, the related notes thereto) (the “Company Financial Statements”) fairly presents, in all material respects, the consolidated financial position of the Company and its Subsidiaries, Subsidiaries as of the date of such balance sheet, respective dates thereof and each of the consolidated statements results of operations, operations and cash flows and changes in stockholders’ equity (deficit) included in or incorporated by reference into the Company Reports (including any related notes and schedules) fairly presents, or, in the case of Company Reports filed after the date of this Agreement, will fairly present, in each case, in all material respects, the results of operations, retained earnings (loss) and changes in financial position, as the case may be, of the Company and its Subsidiaries for the respective periods set forth therein (subject, in the case of unaudited financial statements, to notes and normal year-end audit adjustments that are not or will not be material in amount or effectadjustments), and, in each case case, were prepared in accordance with GAAP U.S. generally accepted accounting principles (“GAAP”) consistently applied during the periods involved, except as may be noted therein or in the notes theretotherein.
(e) Neither the Company nor any of its Subsidiaries has incurred any Indebtedness, or issued or sold any debt securities or rights to acquire any debt security of the Company or any of its Subsidiaries, the terms of which, or the terms of any instrument under which such Indebtedness, debt securities or rights were issued, requires the public listing of such Indebtedness, debt securities or rights or the maintenance by the Company or any of its Subsidiaries of registration under the Exchange Act.
Appears in 2 contracts
Samples: Merger Agreement (Providence Equity Partners VI L P), Merger Agreement (Sra International Inc)
Company Reports; Financial Statements. (ai) The Company has filed or furnished, as applicable, on a timely basis, basis all forms, statements, certifications, reports and documents required to be filed or furnished by it with or to the SEC pursuant to the Exchange Act or the Securities Act Laws since June 30December 31, 2014 2005 (the “Applicable Date”) (the forms, statements, reports and documents filed with or furnished to the SEC since the Applicable Date and those filed with or furnished to the SEC subsequent to the date of this Agreementhereof, in each case as amendedincluding any amendments thereto, the “Company Reports”). Each of the Company Reports, at the time of its filing or being furnished complied or, if not yet filed or furnished, will comply in all material respects with the applicable requirements of the Securities Act, the Exchange Act and the Xxxxxxxx-Xxxxx Act of 2002 (the “Xxxxxxxx-Xxxxx Act”)Laws, and any rules and regulations promulgated thereunder applicable to the Company Reports. As of their respective dates (or, if amended prior to the date of this Agreementhereof, as of the date of such amendment), the Company Reports did not, and any Company Reports filed with or furnished to the SEC subsequent to the date of this Agreement hereof will not, contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements made therein, in light of the circumstances in which they were made, not misleading.
(bii) The Company is in compliance in all material respects with the applicable listing and corporate governance rules and regulations of Nasdaq.
(c) The Company maintains disclosure controls and procedures required the NYSE. Except as permitted by Rule 13a-15 or 15d-15 under the Exchange Act. Such disclosure controls , including Sections 13(k)(2) and procedures are designed to ensure that information required to be disclosed (3), or by rules of the SEC, since the enactment of the Xxxxxxxx-Xxxxx Act, neither the Company in its filings with the SEC under the Exchange Act is recorded and reported on a timely basis to the individuals responsible for the preparation of the Company’s filings with the SEC under the Exchange Act. The Company maintains internal control over financial reporting (as defined in Rule 13a-15 or 15d-15, as applicable, under the Exchange Act). Such internal control over financial reporting is designed to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with GAAP. The Company has disclosed, based on the most recent evaluation nor any of its Chief Executive Officer and its Chief Financial Officer prior to the date of this Agreementaffiliates has made, to the Company’s auditors and the audit committee of the Company’s Board of Directors arranged or modified (xin any material way) any significant deficiencies and material weaknesses extensions of credit in the design form of a personal loan to any executive officer or operation director of its internal controls over financial reporting that are reasonably likely to adversely affect the Company’s ability to record, process, summarize and report financial information and (y) any fraud, whether or not material, that involves management or other employees who have a significant role in the Company’s internal control over financial reporting. The Company has made available prior to the date of this Agreement to Parent (I) either materials relating to or a summary of any disclosure of matters described in clauses (x) or (y) in the preceding sentence made by management of the Company to its auditors and audit committee on or after the Applicable Date and prior to the date of this Agreement and (II) any material communication on or after the Applicable Date and prior to the date of this Agreement made by management of the Company or its auditors to the audit committee as required by the listing standards of Nasdaq, the audit committee’s charter or professional standards of the Public Company Accounting Oversight Board. Since the Applicable Date and prior to the date of this Agreement, no complaints from any source regarding a material violation of accounting procedures, internal accounting controls or auditing matters or compliance with Law, including from Company Employees regarding questionable accounting, auditing or legal compliance matters have, to the Knowledge of the Company, been received by the Company.
(diii) Each of the consolidated balance sheets included in or incorporated by reference into the Company Reports (including the related notes and schedules) fairly presents presents, or, in the case of Company Reports filed after the date of this Agreementhereof, will fairly present, in each case, in all material respects, present the consolidated financial position of the Company and its Subsidiaries, consolidated Subsidiaries as of the its date of such balance sheet, and each of the consolidated statements of operationsincome, cash flows and changes in stockholders’ equity (deficit) and cash flows included in or incorporated by reference into the Company Reports (including any related notes and schedules) fairly presents, or, or in the case of Company Reports filed after the date of this Agreementhereof, will fairly present, in each case, in all material respects, present the results of operations, retained earnings (loss) and changes in financial position, as the case may be, of the Company and its Subsidiaries such companies for the periods set forth therein, in each case in accordance with U.S. generally accepted accounting principles (“GAAP”) consistently applied during the periods involved, except as may be noted therein (subject, in the case of unaudited statements, to notes and normal year-end audit adjustments that are not or will not be material in amount or effect), in each case in accordance with GAAP consistently applied during the periods involved, except as may be noted therein or in the notes thereto.
(e) Neither the Company nor any of its Subsidiaries has incurred any Indebtedness, or issued or sold any debt securities or rights to acquire any debt security of the Company or any of its Subsidiaries, the terms of which, or the terms of any instrument under which such Indebtedness, debt securities or rights were issued, requires the public listing of such Indebtedness, debt securities or rights or the maintenance by the Company or any of its Subsidiaries of registration under the Exchange Act.
Appears in 2 contracts
Samples: Merger Agreement (Mitsubishi Ufj Financial Group Inc), Agreement and Plan of Merger (Bank of Tokyo - Mitsubishi Ufj, LTD)
Company Reports; Financial Statements. (ai) The Company has filed or furnished, as applicable, on a timely basis, all forms, statements, certifications, reports and documents required to be filed or furnished by it with or to the SEC pursuant to the Securities Exchange Act of 1934 (the “Exchange Act”) or the Securities Act since June 30, 2014 (the “Applicable Date”) (the such filed or furnished forms, statements, reports and documents filed with or furnished to the SEC since the Applicable Date and those filed with or furnished to the SEC subsequent to the date of this Agreementdocuments, in each case as amendedincluding any amendments thereto, the “Company Reports”). Each of the Company Reports, at the time of its filing or being furnished complied or, if not yet filed or furnished, will comply in all material respects with the applicable requirements of the Securities Act, the Exchange Act and the Xxxxxxxx-Xxxxx Act of 2002 (the “Xxxxxxxx-Xxxxx Act”), and any rules and regulations promulgated thereunder applicable to the Company ReportsReports (the “Xxxxxxxx-Xxxxx Act”). As of their respective dates (or, if amended prior to the date of this Agreement, as of the date of such amendment), the Company Reports did not, and any Company Reports filed with or furnished to the SEC subsequent to the date of this Agreement will not, contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements made therein, in light of the circumstances in under which they were made, not misleading. None of the Company’s Subsidiaries is required to file periodic reports with the SEC pursuant to the Exchange Act.
(bii) The Company is and has been since July 19, 2012 in compliance in all material respects with the applicable listing and corporate governance rules and regulations of Nasdaqthe NASDAQ.
(ciii) The Company maintains disclosure controls and procedures required by Rule 13a-15 or 15d-15 under the Exchange Act. Such disclosure controls and procedures are designed to ensure that material information required relating to be disclosed by the Company in its filings with the SEC under the Exchange Act is recorded and reported on a timely basis made known to the individuals responsible for the preparation of the Company’s filings with the SEC under the Exchange Acton a timely basis. The Company maintains internal control over financial reporting (as defined in Rule 13a-15 or 15d-15, as applicable, under the Exchange Act). Such internal control over financial reporting is designed to provide sufficient in providing reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with GAAP. The Company has disclosed, based on the its most recent evaluation of its Chief Executive Officer and its Chief Financial Officer the Company’s internal control over financial reporting prior to the date of this Agreement, to the Company’s auditors and the audit committee of the Company’s Board board of Directors directors (x) any all significant deficiencies and material weaknesses in the design or operation of its internal controls over financial reporting that are reasonably likely to adversely affect the Company’s ability to record, process, summarize and report financial information and (y) any fraud, whether or not material, that involves management or other employees who have a significant role in the Company’s internal control over financial reporting. The Company has made available prior to To the date of this Agreement to Parent (I) either materials relating to or a summary of any disclosure of matters described in clauses (x) or (y) in the preceding sentence made by management of the Company to its auditors and audit committee on or after the Applicable Date and prior to the date of this Agreement and (II) any material communication on or after the Applicable Date and prior to the date of this Agreement made by management of the Company or its auditors to the audit committee as required by the listing standards of Nasdaq, the audit committeeCompany’s charter or professional standards of the Public Company Accounting Oversight Board. Since the Applicable Date and prior to the date of this Agreementknowledge, no material formal complaints from any source regarding a material violation of accounting proceduresaccounting, internal accounting controls or auditing matters or compliance with Law, including from Company Employees regarding questionable accounting, auditing or legal compliance matters have, to the Knowledge of the Company, have been received by the Company. As of the date of this Agreement, the Company has not received any material complaints through the Company’s whistleblower hot line or equivalent system for receipt of employee concerns regarding possible violations of Law. No attorney representing the Company or any of its Subsidiaries, whether or not employed by the Company or any of its Subsidiaries, has reported evidence of a violation of securities Laws, breach of fiduciary duty or similar violation by the Company or any of its officers, directors, employees or agents to the Company’s chief legal officer, audit committee (or other committee designated for the purpose) of the board of directors or to the board of directors pursuant to the rules adopted pursuant to Section 307 of the Xxxxxxxx-Xxxxx Act or any Company policy contemplating such reporting.
(div) Neither the Company nor any of its Subsidiaries is a party to, nor has any commitment to become a party to, any joint venture, off-balance sheet partnership or any similar Contract (including any Contract or arrangement relating to any transaction or relationship between or among the Company and any of its Subsidiaries, on the one hand, and any unconsolidated Affiliate, including any structured finance, special purpose or limited purpose entity or Person, on the other hand), or any “off-balance sheet arrangements” (as defined in Item 303(a) of Regulation S-K promulgated by the SEC), where the result, purpose or intended effect of such Contract is to avoid disclosure of any material transaction involving, or material liabilities of, the Company or any of its Subsidiaries in the Company’s or such Subsidiary’s published financial statements or other Company Reports. For purposes of this Agreement, the term “Affiliate” when used with respect to any party shall mean any Person that is an “affiliate” of that party within the meaning of Rule 405 promulgated under the Securities Act.
(v) Each of the consolidated balance sheets included in or incorporated by reference into the Company Reports (including the related notes and schedules) fairly presents or, in the case of Company Reports filed after the date of this Agreement, will fairly present, in each casepresents, in all material respects, the consolidated financial position of the Company and its Subsidiaries, as of the date of such balance sheet, and each of the consolidated statements of operations, cash flows and changes in stockholders’ equity (deficit) included in or incorporated by reference into the Company Reports (including any related notes and schedules) fairly presents, or, in the case of Company Reports filed after the date of this Agreement, will fairly present, in all material respects, the consolidated financial position of the Company and its consolidated Subsidiaries as of its date and each caseof the consolidated statements of operations, changes in shareholders’ equity (deficit) and cash flows included in or incorporated by reference into the Company Reports (including any related notes and schedules), fairly presents, in all material respects, or in the case of Company Reports filed after the date of this Agreement, will fairly present, in all material respects, the results of operations, retained earnings (loss) and changes in financial position, as the case may be, of the Company and its Subsidiaries such companies for the periods set forth therein (subject, in the case of unaudited statements, to notes and normal year-end audit adjustments that are not or will not be material in amount or effect), and each of the foregoing financial statements was prepared or, in the case of Company Reports filed or furnished after the date of this Agreement, will be prepared in each case in accordance with GAAP consistently applied during the periods involved, except as may be noted therein or in the notes theretotherein.
(evi) Neither Subject to any reserves set forth in the Company nor any of its Subsidiaries has incurred any IndebtednessReports, or issued or sold any debt securities or rights to acquire any debt security of the accounts receivable shown on the Company Reports represent valid, bona fide claims against debtors for sales and other charges. The amount carried for doubtful accounts and allowances disclosed in the Company Reports was calculated in accordance with GAAP and in a manner consistent with prior periods. To the Company’s knowledge, there is no contest, claim, defense or any right of its Subsidiariessetoff, other than returns in the ordinary course of business, relating to the amount or validity of such accounts receivable. As used herein, the terms “to the Company’s knowledge” or “to the knowledge of whichthe Company” mean the actual knowledge of Xxxxxx Xxxxxx, or the terms of any instrument under which such IndebtednessXxxx Xxxxxxx, debt securities or rights were issuedXxxxx Xxxxxxx, requires the public listing of such IndebtednessXxxxxxx Xxxxxx and Xxxxx Xxxxx, debt securities or rights or the maintenance by the Company or any of its Subsidiaries of registration under the Exchange Actafter due inquiry.
Appears in 2 contracts
Samples: Merger Agreement (Priceline Com Inc), Merger Agreement (KAYAK Software Corp)
Company Reports; Financial Statements. (a) The Company has filed or furnished, as applicable, on a timely basis, basis all forms, statements, certifications, reports and documents required to be filed or furnished by it with or to the SEC pursuant to the Exchange Act or the Securities Act since June 3028, 2014 (the “Applicable Date”) (the such filed or furnished forms, statements, reports and documents filed with or furnished to the SEC since the Applicable Date and those filed with or furnished to the SEC subsequent to the date of this Agreementdocuments, in each case as amendedincluding any amendments thereto, the “Company Reports”). Each of the Company Reports, at the time of its filing or being furnished complied or, if not yet filed or furnished, will comply in all material respects with the applicable requirements of the Securities Act, the Exchange Act and the Xxxxxxxx-Xxxxx Act of 2002 (the “Xxxxxxxx-Xxxxx Act”), and any rules and regulations promulgated thereunder applicable to the Company Reports. As of their respective dates (or, if amended prior to the date of this Agreement, as of the date of such amendment), the Company Reports did not, and any Company Reports filed with or furnished to the SEC subsequent to the date of this Agreement will not, contain any untrue statement of a material fact fact, or omit to state a material fact required to be stated therein or necessary to make the statements made therein, in light of the circumstances in which they were made, not misleading. To the Knowledge of the Company, none of the Company Reports is the subject of an ongoing or outstanding Action by the SEC. As of the date of this Agreement, there are no outstanding or unresolved comments in comment letters received by the Company from the SEC or its staff with respect to any of the Company Reports. To the Knowledge of the Company, there has been no correspondence between the SEC and the Company between the Applicable Date and the date of this Agreement that is not available on the SEC’s Electronic Data Gathering Analysis and Retrieval database.
(b) The Since the Applicable Date, the Company has been and is in compliance in all material respects with the applicable provisions of the Xxxxxxxx-Xxxxx Act and the applicable listing and corporate governance rules and regulations of Nasdaq.
(c) The Company maintains disclosure controls and procedures required by Rule 13a-15 or 15d-15 under the Exchange Act. Such disclosure controls and procedures are designed effective to ensure that information required to be disclosed by the Company in its filings with the SEC under the Exchange Act is recorded and reported on a timely basis to the individuals responsible for the preparation of the Company’s filings with the SEC under the Exchange Actand other public disclosure documents. The Company maintains internal control over financial reporting (as defined in Rule 13a-15 or 15d-15, as applicable, under the Exchange Act). Such internal control over financial reporting is designed to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with GAAP. The Company has disclosed, based on the most recent evaluation of its Chief Executive Officer chief executive officer and its Chief Financial Officer chief financial officer prior to the date of this Agreement, to the Company’s auditors and the audit committee of the Company’s Board board of Directors directors of the Company (xA) any significant deficiencies and material weaknesses in the design or operation of its internal controls over financial reporting that are reasonably likely expected to adversely affect the Company’s ability to record, process, summarize and report financial information and has identified for the Company’s auditors and audit committee of the board of directors of the Company any material weaknesses in internal control over financial reporting and (yB) any fraud, whether or not material, that involves management or other employees who have a significant role in the Company’s internal control over financial reporting. The Company has made available prior to the date of this Agreement to Parent (I) either materials relating to or a summary of any disclosure of matters described in clauses (x) or (y) in the preceding sentence made by management of the Company to its auditors and audit committee on or after the Applicable Date and prior to the date of this Agreement and (II) any material communication on or after the Applicable Date and prior to the date of this Agreement made by management of the Company or its auditors to the audit committee as required by the listing standards of Nasdaq, the audit committee’s charter or professional standards of the Public Company Accounting Oversight Board. Since the Applicable Date and prior to the date of this AgreementDate, no material complaints from any source regarding a material violation of accounting proceduresaccounting, internal accounting controls or auditing matters or compliance with Lawmatters, including and no material concerns from Company Employees employees regarding questionable accountingaccounting or auditing matters, auditing or legal compliance matters have, to have been received by the Company. To the Knowledge of the Company, been received no attorney representing the Company or any of its Subsidiaries, whether or not employed by the Company or any of its Subsidiaries, has reported evidence of a violation of securities Laws, breach of fiduciary duty or similar violation by the Company or any of its officers, directors, employees or agents to the Company’s chief legal officer, audit committee (or other committee designated for the purpose) of the board of directors of the Company or the board of directors of the Company pursuant to the rules adopted pursuant to Section 307 of the Xxxxxxxx-Xxxxx Act or any Company policy contemplating such reporting, including in instances not required by those rules.
(d) Each of the consolidated balance sheets included in or incorporated by reference into the Company Reports (including the related notes and schedules) (i) fairly presents or, in the case of Company Reports filed after the date of this Agreement, will fairly present, in each case, in all material respects, the consolidated financial position of the Company and its Subsidiaries, as of the date of such balance sheet, and each of the consolidated statements of operations, cash flows and changes in stockholders’ equity (deficit) included in or incorporated by reference into the Company Reports (including any related notes and schedules) fairly presents, or, in the case of Company Reports filed after the date of this Agreement, will fairly presentpresent in all material respects, the consolidated financial position of the Company and its consolidated Subsidiaries as of its date and each of the consolidated statements of operations, stockholders’ equity and cash flows included in or incorporated by reference into the Company Reports (including any related notes and schedules), (ii) fairly presents in all material respects, or, in each casethe case of Company Reports filed after the date of this Agreement, will fairly present in all material respects, the results of operations, retained earnings (loss) stockholders’ equity and changes in financial positioncash flows, as the case may be, of for the Company and its consolidated Subsidiaries for the periods set forth therein (subject, in the case of unaudited statements, to notes and normal year-end audit adjustments that are not or will not be material in amount or effect), and (iii) in each case case, were prepared in accordance with GAAP consistently applied during the periods involved, except as may be noted therein or and except, in the notes thereto.
(e) Neither the Company nor any case of its Subsidiaries has incurred any Indebtednessunaudited statements, or issued or sold any debt securities or rights to acquire any debt security as permitted by Form 10-Q of the Company or any of its Subsidiaries, the terms of which, or the terms of any instrument under which such Indebtedness, debt securities or rights were issued, requires the public listing of such Indebtedness, debt securities or rights or the maintenance by the Company or any of its Subsidiaries of registration under the Exchange ActSEC.
Appears in 2 contracts
Samples: Merger Agreement (G&k Services Inc), Merger Agreement (Cintas Corp)
Company Reports; Financial Statements. (a) The Company has timely filed or furnished, as applicable, on a timely basis, all forms, statements, certifications, reports and documents Company Reports required to be filed or furnished by it with or to the SEC pursuant to the Exchange Act or the Securities Act since between June 30, 2014 (the “Applicable Date”) (the forms, statements, reports and documents filed with or furnished to the SEC since the Applicable Date and those filed with or furnished to the SEC subsequent to the date of this Agreement, in each case as amended, the “Company Reports”)hereof. Each No Subsidiary of the Company Reports, at is subject to the time reporting requirements of its filing Section 13(a) or being furnished 15(d) of the Exchange Act. Each Company Report has complied or, if not yet filed or furnished, will comply in all material respects as of its date (or, if amended prior to the date hereof, as finally amended prior to the date hereof) with the applicable requirements of the Securities Act, the Exchange Act and the Xxxxxxxx-Xxxxx Act of 2002 (the “Xxxxxxxx-Xxxxx Act”), and any rules and regulations promulgated thereunder applicable to thereunder, or the Company Reports. As of their respective dates (orExchange Act, if amended prior to and the rules and regulations promulgated thereunder, as applicable, each as in effect on the date so filed (or amended). None of this Agreement, as of the date of such amendment), the Company Reports did not(including any financial statements or schedules included or incorporated by reference therein) contained, when filed (and, in the case of registration statements and any Company Reports filed with or furnished to proxy statements, on the SEC subsequent to dates of effectiveness and the date dates of this Agreement will notmailing, contain respectively) any untrue statement of a material fact or omit omitted, as the case may be, to state a material fact required to be stated or incorporated by reference therein or necessary to make the statements made therein, in the light of the circumstances in under which they were made, not misleading.
(b) The Each of the Chief Executive Officer and Chief Financial Officer of the Company is has made all certifications required by Rules 13a-14 and 15d-14 under the Exchange Act and Sections 302 and 906 of the Xxxxxxxx-Xxxxx Act with respect to the applicable Company Reports filed prior to the date hereof (collectively, the “Certifications”) and the statements contained in compliance such Certifications are accurate in all material respects with as of the applicable listing and corporate governance rules and regulations of Nasdaqfiling thereof.
(c) The Company maintains disclosure controls and procedures required by Rule 13a-15 or 15d-15 under the Exchange Act. Such disclosure controls and procedures are designed has made available to ensure that information required to be disclosed by Parent all of the Company in its filings with Financial Statements and all material correspondence (if such correspondence has occurred since June 30, 2014 through the date hereof) between the SEC under on the one hand, and the Company and any of its Subsidiaries, on the other hand. As of the date hereof, there are no outstanding or unresolved comments in comment letters from the SEC staff with respect to any of the Company Reports. To the Knowledge of the Company, as of the date hereof, none of the Company Reports is the subject of ongoing SEC review, outstanding SEC comment or outstanding SEC investigation. All of the Company Financial Statements comply in all material respects with applicable requirements of the Exchange Act is recorded and reported have been prepared in accordance with GAAP applied on a timely consistent basis to throughout the individuals responsible periods involved (except as may be indicated in the notes thereto) and fairly present in all material respects, or will present in all material respects, as the case may be, the consolidated financial position of the Company at the respective dates thereof and the consolidated results of its operations and changes in cash flows for the preparation periods indicated (subject, in the case of unaudited statements, to normal year-end audit adjustments and any other adjustments described therein, in each case consistent with GAAP). As of the Company’s filings date hereof, the books and records of Company and its Subsidiaries have been maintained in all material respects in accordance with the SEC under the Exchange Act. GAAP and any other applicable legal and accounting requirements and reflect only actual transactions.
(d) The Company maintains and its Subsidiaries have implemented and maintain a system of internal control over financial reporting (as defined in Rule 13a-15 or 15d-15, as applicable, under the Exchange Act). Such internal control over financial reporting is designed accounting controls sufficient to provide reasonable assurance assurances regarding the reliability of financial reporting and the preparation of financial statements in accordance with GAAP. Such internal controls are sufficient to provide reasonable assurance regarding the reliability of the Company’s financial reporting and the preparation of Company financial statements for external purposes in accordance with GAAP. The Since June 30, 2014 through the date hereof, the Company has disclosed, based on the most recent evaluation of its Chief Executive Officer and its Chief Financial Officer prior to the date of this Agreement, disclosed to the Company’s auditors and the audit committee of the Company’s Company Board of Directors (xi) any all significant deficiencies and material weaknesses in the design or operation of its internal controls over financial reporting that are reasonably likely to adversely affect the Company’s ability to record, process, summarize and report financial information and (yii) any fraud, whether or not material, that involves management or other employees who have a significant role in the Company’s internal control over financial reportingcontrols, and the Company has made available to Parent copies of any material written materials relating to each of the foregoing. The Company has made available prior implemented and maintains disclosure controls and procedures (as defined in Rule 13a-15(e) under the Exchange Act) designed to ensure that information relating to the date of this Agreement Company, including its consolidated Subsidiaries, required to Parent (I) either materials relating to or a summary of any disclosure of matters described in clauses (x) or (y) be disclosed in the preceding sentence reports the Company files or submits under the Exchange Act is made known to the Company’s management by others within those entities. Such disclosure controls and procedures are reasonably designed to ensure that the Company’s management is timely alerted to material information required to be included in the Company’s periodic reports required under the Exchange Act.
(e) The Company has for the past two (2) years been in compliance in all material respects with the applicable provisions of the Xxxxxxxx-Xxxxx Act.
(f) The Company has adopted a code of ethics, as defined by Item 406(b) of Regulation S-K promulgated under the Exchange Act, for senior financial officers, applicable to its auditors and audit committee on principal financial officer, comptroller or after the Applicable Date and prior to the date of this Agreement and (II) principal accounting officer, or persons performing similar functions. The Company has promptly disclosed, by filing a Form 8-K, any material communication on change in or after the Applicable Date and prior to the date of this Agreement made by management waiver of the Company or its auditors to the audit committee Company’s code of ethics, as required by the listing standards Section 406(b) of Nasdaq, the audit committee’s charter or professional standards of the Public Company Accounting Oversight BoardXxxxxxxx-Xxxxx Act. Since the Applicable Date and prior to the date of this Agreement, no complaints from any source regarding a material violation of accounting procedures, internal accounting controls or auditing matters or compliance with Law, including from Company Employees regarding questionable accounting, auditing or legal compliance matters have, to To the Knowledge of the Company, there have been received by no violations of provisions of the Company’s code of ethics since its adoption.
(dg) Each of the consolidated balance sheets included in or incorporated by reference into the Company Reports (including the related notes and schedules) fairly presents or, in the case of Company Reports filed after the date of this Agreement, will fairly present, in each case, in all material respects, the consolidated financial position of the Company and its Subsidiaries, as of the date of such balance sheet, and each of the consolidated statements of operations, cash flows and changes in stockholders’ equity (deficit) included in or incorporated by reference into the Company Reports (including any related notes and schedules) fairly presents, or, in the case of Company Reports filed after the date of this Agreement, will fairly present, in each case, in all material respects, the results of operations, retained earnings (loss) and changes in financial position, as the case may be, of the Company and its Subsidiaries for the periods set forth therein (subject, in the case of unaudited statements, to notes and normal year-end audit adjustments that There are not or will not be material in amount or effect), in each case in accordance with GAAP consistently applied during the periods involved, except as may be noted therein or in the notes thereto.
(e) Neither the Company nor any of its Subsidiaries has incurred any Indebtedness, or issued or sold any debt securities or rights to acquire any debt security no Liabilities of the Company or any of its SubsidiariesSubsidiaries that are material to the Company and its Subsidiaries taken as a whole, are required by GAAP to be set forth on the terms Company Financial Statements and are not set forth on the Company Financial Statements (or the notes thereto), other than (i) Liabilities incurred by or on behalf of whichthe Company under, or otherwise permitted by, this Agreement or otherwise in connection with the terms transactions contemplated by this Agreement, (ii) Liabilities incurred in the ordinary course of any instrument business consistent with past practice since March 31, 2016, none of which would reasonably be expected to have a Company Material Adverse Effect, and (iii) Liabilities for performance of the Company’s obligations under which such Indebtedness, debt securities or rights were issued, requires the public listing of such Indebtedness, debt securities or rights or the maintenance by the Company or any of its Subsidiaries of registration under the Exchange ActContracts.
Appears in 2 contracts
Samples: Merger Agreement (Thoma Bravo Fund Xii, L.P.), Merger Agreement (Imprivata Inc)
Company Reports; Financial Statements. (a) The Except as set forth in Section 3.5(a) of the Company Disclosure Letter, since January 1, 2011, the Company has timely filed or furnished, otherwise furnished (as applicable) all registration statements, on a timely basisprospectuses, all forms, reports, definitive proxy statements, certificationsschedules, reports statements and documents required to be filed or furnished by it with or to under the SEC pursuant to the Exchange Securities Act or the Securities Act since June 30, 2014 (the “Applicable Date”) (the forms, statements, reports and documents filed with or furnished to the SEC since the Applicable Date and those filed with or furnished to the SEC subsequent to the date of this Agreement, in each case as amended, the “Company Reports”). Each of the Company Reports, at the time of its filing or being furnished complied or, if not yet filed or furnished, will comply in all material respects with the applicable requirements of the Securities Exchange Act, as the Exchange Act and case may be, together with all certifications required pursuant to the Xxxxxxxx-Xxxxx Act of 2002 (the “Xxxxxxxx-Xxxxx Act”) (such documents and any other documents filed by the Company or any of its Subsidiaries with the Securities and Exchange Commission (the “SEC”), including exhibits and any rules and regulations promulgated thereunder applicable to other information incorporated therein as they have been supplemented, modified or amended since the time of filing, collectively, the “Company ReportsSEC Documents”). As of their respective filing dates (or, if amended or superseded by a filing prior to the date of this Agreement, as of then on the date of such amendmentfiling), the Company Reports SEC Documents (i) did not, and any Company Reports filed with or furnished to the SEC subsequent to the date of this Agreement will not, not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements made therein, in light of the circumstances in under which they were made, not misleadingmisleading and (ii) complied in all material respects with the applicable requirements of the Exchange Act or the Securities Act, as the case may be, the Xxxxxxxx-Xxxxx Act and the applicable rules and regulations of the SEC thereunder. Each Company SEC Document to be filed subsequent to the date of this Agreement will have complied in all material respects with the Securities Act, the Exchange Act and the Xxxxxxxx-Xxxxx Act, as the case may be. None of the Company’s Subsidiaries is required to make any filings with the SEC. All of the audited consolidated financial statements and unaudited consolidated interim financial statements of the Company included in the Company SEC Documents (together with the related notes and schedules thereto, collectively, the “Company Financial Statements”)
(A) have been prepared from, and are in accordance with, the books and records of the Company and the Company’s Subsidiaries in all material respects, (B) have been prepared in accordance with GAAP applied on a consistent basis during the periods involved (except as may be indicated in the notes thereto or, in the case of interim financial statements, for normal and recurring year-end adjustments) and (C) fairly present in all material respects the consolidated financial position and the consolidated results of operations, cash flows and changes in stockholders’ equity of the Company and its Subsidiaries as of the dates and for the periods referred to therein.
(b) The Company is in compliance in all material respects with (i) the applicable provisions of the Xxxxxxxx-Xxxxx Act and (ii) the applicable listing and corporate governance rules and regulations of NasdaqNASDAQ.
(c) The Company maintains Company’s disclosure controls and procedures required by Rule 13a-15 or 15d-15 under (as defined in Rules 13a-15(e) and 15d-15(e) of the Exchange Act. Such disclosure controls ), as required by Rules 13a-15(a) and procedures 15d-15(a) of the Exchange Act, are reasonably designed to ensure that all material information required to be disclosed by the Company in its filings with the SEC reports it files or furnishes under the Exchange Act is recorded made known to the chief executive officer and the chief financial officer of the Company by others within the Company to allow timely decisions regarding required disclosure as required under the Exchange Act and is recorded, processed, summarized and reported on a timely basis to within the individuals responsible for time periods specified by the preparation SEC’s rules and forms. The Company has evaluated the effectiveness of the Company’s filings with disclosure controls and procedures and, to the extent required by applicable Law, presented in any applicable Company SEC under Document that is a report on Form 10-K or Form 10-Q, or any amendment thereto, its conclusions about the Exchange Act. The Company maintains internal control over financial reporting (effectiveness of the disclosure controls and procedures as defined in Rule 13a-15 of the end of the period covered by such report or 15d-15, as applicable, under the Exchange Act). Such internal control over financial reporting is designed to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with GAAPamendment based on such evaluation. The Company has disclosed, based on the its most recent evaluation of its Chief Executive Officer and its Chief Financial Officer prior to the date of this Agreementinternal control over financial reporting, to the Company’s its outside auditors and the audit committee of the Company’s Company Board of Directors (xi) any all significant deficiencies and material weaknesses in the design or operation of its internal controls control over financial reporting that are would reasonably likely be expected to adversely affect the Company’s ability to record, process, summarize and report financial information and (yii) any fraud, whether or not material, that involves management or other employees who have a significant role in the Company’s internal control over financial reporting. There has not been any such disclosure made by management to the Company’s outside auditors or the audit committee of the Company Board since January 1, 2011.
(d) To the Company’s Knowledge, none of the Company SEC Documents (other than confidential treatment requests) is the subject of ongoing SEC review. The Company has made available prior to Parent true and complete copies of all written comment letters from the staff of the SEC received since January 1, 2011 through the date of this Agreement to Parent (I) either materials relating to or a summary of any disclosure of matters described in clauses (x) or (y) in the preceding sentence made by management Company SEC Documents and all written responses of the Company to its auditors and audit committee on or after the Applicable Date and prior to thereto through the date of this Agreement and (II) any material communication on or after the Applicable Date and prior other than with respect to the date requests for confidential treatment. As of this Agreement made by management of the Company or its auditors to the audit committee as required by the listing standards of Nasdaq, the audit committee’s charter or professional standards of the Public Company Accounting Oversight Board. Since the Applicable Date and prior to the date of this Agreement, there are no complaints outstanding or unresolved comments in comment letters received from the SEC staff with respect to any source regarding a material violation of accounting procedures, internal accounting controls or auditing matters or compliance with Law, including from Company Employees regarding questionable accounting, auditing or legal compliance matters have, to the Knowledge of SEC Documents other than confidential treatment requests. To the Company’s Knowledge, been received by the Company.
(d) Each as of the consolidated balance sheets included in or incorporated by reference into the Company Reports (including the related notes and schedules) fairly presents or, in the case of Company Reports filed after the date of this Agreement, will fairly presentthere are no SEC inquiries or investigations, in each case, in all material respects, the consolidated financial position of the Company and its Subsidiaries, as of the date of such balance sheet, and each of the consolidated statements of operations, cash flows and changes in stockholders’ equity (deficit) included in other governmental inquiries or incorporated by reference into the Company Reports (including any related notes and schedules) fairly presents, or, in the case of Company Reports filed after the date of this Agreement, will fairly present, in each case, in all material respects, the results of operations, retained earnings (loss) and changes in financial position, as the case may be, of the Company and its Subsidiaries for the periods set forth therein (subject, in the case of unaudited statements, to notes and normal year-end audit adjustments that are not investigations or will not be material in amount internal investigations pending or effect)threatened, in each case in accordance with GAAP consistently applied during the periods involved, except as may be noted therein or in the notes thereto.
(e) Neither the Company nor regarding any of its Subsidiaries has incurred any Indebtedness, or issued or sold any debt securities or rights to acquire any debt security accounting practices of the Company or any of its Subsidiaries, the terms of which, or the terms of any instrument under which such Indebtedness, debt securities or rights were issued, requires the public listing of such Indebtedness, debt securities or rights or the maintenance by the Company or any of its Subsidiaries of registration under the Exchange ActCompany.
Appears in 2 contracts
Samples: Merger Agreement (Contango Oil & Gas Co), Merger Agreement (Crimson Exploration Inc.)
Company Reports; Financial Statements. (ai) The Company has filed or furnished, as applicable, on a timely basis, basis all forms, statements, certifications, reports and documents required to be filed or furnished by it with or to the SEC pursuant to under the Exchange Act or the Securities Act since June 30December 31, 2014 2004 (the “Applicable Date”) (the forms, statements, reports and documents filed with or furnished to the SEC since the Applicable Date and those filed with or furnished to the SEC subsequent to the date of this Agreement, in each case as amendedhereof including any amendments thereto, the “Company Reports”). Each of the Company Reports, at the time of its filing or being furnished complied orcomplied, or if not yet filed or furnished, will comply comply, in all material respects with the applicable requirements of the Securities Act, the Exchange Act and the Xxxxxxxx-Xxxxx Act of 2002 (the “Xxxxxxxx-Xxxxx Act”), and any rules and regulations promulgated thereunder applicable to the Company Reports. As of their respective dates (or, if amended prior to the date of this Agreementhereof, as of the date of such amendment), ) the Company Reports did not, and any Company Reports filed with or furnished to with the SEC subsequent to the date of this Agreement hereof will not, contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements made therein, in light of the circumstances in which they were made, not misleading.
(bii) The Company’s consolidated financial statements (including, in each case, any notes thereto) contained in the Company Reports, were or will be prepared in accordance with GAAP applied on a consistent basis throughout the periods indicated (except as may be indicated in the notes thereto or, in the case of interim consolidated financial statements, where information and footnotes contained in such financial statements are not required to be in compliance with GAAP), and in each case such consolidated financial statements fairly presented, in all material respects, the consolidated financial position, results of operations and cash flows of the Company and the consolidated Subsidiaries of the Company as of the respective dates thereof and for the respective periods covered thereby (subject, in the case of unaudited statements, to normal year-end adjustments which were not and which are not expected to be, individually or in the aggregate, material to the Company and its consolidated Subsidiaries taken as a whole).
(iii) The Company is in compliance in all material respects with the applicable listing and corporate governance rules and regulations of the Nasdaq.
(civ) The Company maintains disclosure controls and procedures required by Rule 13a-15 or 15d-15 under the Exchange Act. Such disclosure controls and procedures are designed effective to ensure that information required to be disclosed by the Company in its filings with the SEC under the Exchange Act is recorded and reported on a timely basis to the individuals responsible for the preparation of the Company’s filings with the SEC under the Exchange Actand other public disclosure documents. The Company maintains internal control over financial reporting (as defined in Rule 13a-15 or 15d-15, as applicable, under the Exchange Act). Such internal control over financial reporting is designed to provide effective in providing reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with GAAP. generally accepted accounting principles and includes policies and procedures that (i) pertain to the maintenance of records that in reasonable detail accurately and fairly reflect the transactions and dispositions of the asset of the Company, (ii) provide reasonable assurance that transactions are recorded as necessary to permit preparation of financial statements in accordance with generally accepted accounting principles, and that receipts and expenditures of the Company are being made only in accordance with authorizations of management and directors of the Company, and (iii) provide reasonable assurance regarding prevention or timely detection of unauthorized acquisition, use or disposition of the Company’s assets that could have a material effect on its financial statements.
(v) The Company has disclosed, based on the most recent evaluation of its Chief Executive Officer chief executive officer and its Chief Financial Officer chief financial officer prior to the date of this Agreementhereof, to the Company’s auditors and the audit committee of the Company’s Board board of Directors directors (xA) any significant deficiencies and material weaknesses in the design or operation of its internal controls over financial reporting that are reasonably likely to adversely affect the Company’s ability to record, process, summarize and report financial information and has identified for the Company’s auditors and audit committee of the Company’s board of directors any material weaknesses in internal control over financial reporting and (yB) any fraud, whether or not material, that involves management or other employees who have a significant role in the Company’s internal control over financial reporting. The Company has made available prior to the date of this Agreement to Parent (Ii) either materials relating to or a summary of any such disclosure of matters described in clauses (x) or (y) in the preceding sentence made by management of to the Company to its Company’s auditors and audit committee on or after since the Applicable Date and prior to the date of this Agreement and (IIii) any material communication on or after since the Applicable Date and prior to the date of this Agreement made by management of or the Company or its Company’s auditors to the audit committee as required or contemplated by the listing standards of Nasdaq, the audit committee’s charter or professional standards of the Public Company Accounting Oversight Board. Since the Applicable Date and prior to the date of this AgreementDate, no material complaints from any source regarding a material violation of accounting proceduresaccounting, internal accounting controls or auditing matters or compliance with Lawmatters, including and no concerns from Company Employees employees regarding questionable accountingaccounting or auditing matters, auditing or legal compliance matters have, to the Knowledge of the Company, have been received by the Company. The Company has made available to Parent a summary of all material complaints or concerns relating to other matters made since the Applicable Date through the Company’s whistleblower hot-line or equivalent system for receipt of employee concerns regarding possible violations of Law. No attorney representing the Company or any of its Subsidiaries, whether or not employed by the Company or any of its Subsidiaries, has reported evidence of a violation of securities laws, breach of fiduciary duty or similar violation by the Company or any of its officers, directors, employees or agents to the Company’s chief legal officer, audit committee (or other committee designated for the purpose) of the board of directors or the board of directors pursuant to the rules in adopted pursuant to Section 307 of the Xxxxxxxx-Xxxxx Act or any Company policy contemplating such reporting, including in instances not required by those rules.
(dvi) Each of the consolidated balance sheets included in or incorporated by reference into the Company Reports (including the related notes and schedules) fairly presents or, in the case of Company Reports filed after the date of this Agreement, will fairly present, in each case, in all material respects, the consolidated financial position of the Company and its Subsidiaries, as of the date of such balance sheet, and each of the consolidated statements of operations, cash flows and changes in stockholders’ equity (deficit) included in or incorporated by reference into the Company Reports (including any related notes and schedules) fairly presents, or, in the case of Company Reports filed after the date of this Agreement, will fairly present, in each case, in all material respects, the results of operations, retained earnings (loss) and changes in financial position, as the case may be, of the The Company and its Subsidiaries for the periods set forth therein (subject, in the case of unaudited have timely filed all reports and statements, together with any amendments required to notes be made with respect thereto, that they were required to file since December 31, 2004 with (A) the Federal Reserve Board and normal year-end audit adjustments that are not (B) any other Regulatory Authority, and all other material reports and statements required to be filed by it since December 31, 2004, including, without limitation, the rules and regulations of the FDIC, the OCC or will not be any other Regulatory Authority, and has paid all fees and assessments due and payable in connection therewith. As of their respective dates, such reports and statements complied in all material in amount or effect)respects with all the laws, in each case in accordance rules and regulations of the applicable Regulatory Authority with GAAP consistently applied during the periods involved, except as may be noted therein or in the notes theretowhich they were filed.
(evii) Neither Since December 31, 2004, neither the Company nor any of its Subsidiaries has incurred any Indebtednessobligations or liabilities (whether or not accrued, contingent or issued otherwise and whether or sold not required to be disclosed, including those related to environmental and occupational safety and health matters) other than in the ordinary and usual course of business consistent with past practice (excluding the incurrence of expenses related to this Agreement and the transactions contemplated hereby).
(viii) Since December 31, 2004, (A) each of the Company and each of its Subsidiaries has conducted its business only in, and has not engaged in any debt securities material transaction other than according to, the ordinary and usual course of such business consistent with past practice and (B) no event has occurred or rights circumstance arisen that, individually or taken together with all other facts, circumstances and events (described in any paragraph of this Section 5.02 or otherwise) has had or could be reasonably likely to acquire have a Company Material Adverse Effect or prevent, materially delay or materially impair the ability of the Company to consummate the transactions contemplated by this Agreement.
(ix) Since December 31, 2004, there has not been (A) any debt security of material damage, destruction or other casualty loss with respect to any material asset or property owned, leased or otherwise used by the Company or any Subsidiary of its Subsidiariesthe Company, the terms of whichwhether or not covered by insurance, (B) any declaration, setting aside or the terms payment of any instrument under which such Indebtednessdividend or other distribution in cash, debt securities stock or rights were issuedproperty in respect of the capital stock of the Company other than as set forth in the Company Reports, requires (C) any change by the public listing of such IndebtednessCompany in accounting principles, debt securities practices or rights methods or (D) any increase in the maintenance compensation payable or that could become payable by the Company or any of its Subsidiaries to officers or key employees or any amendment of registration under any of the Exchange ActBenefit Plans other than increases or amendments in the ordinary and usual course consistent with past practice.
Appears in 2 contracts
Samples: Merger Agreement (First Community Bancorp /Ca/), Merger Agreement (Community Bancorp Inc)
Company Reports; Financial Statements. (a) The Company has filed or furnished, as applicable, on a timely basis, all forms, statements, certifications, reports and documents required to be filed or furnished by it with or to the SEC pursuant to the Exchange Act or the Securities Act since June 30January 31, 2014 2015 (the “Applicable Date”) (” and the forms, statements, reports and documents filed with or furnished to the SEC since the Applicable Date and those filed with or furnished to the SEC subsequent to the date of this Agreement, in each case as amendedincluding any amendments or supplements thereto, the “Company Reports”). No Subsidiary of the Company is required to file or furnish any periodic reports with the SEC. Each of the Company Reports, at the time of its filing or being furnished complied or, if not yet filed or furnished, will comply when filed or furnished, in all material respects with the applicable requirements of the Securities Act, the Exchange Act Act, applicable accounting standards and the Xxxxxxxx-Xxxxx Act of 2002 (as amended and including the “Xxxxxxxx-Xxxxx Act”rules and regulations promulgated thereunder), and any rules and regulations promulgated thereunder applicable to the Company Reports, each as in effect on the date so filed. As of their respective dates (or, if amended prior to the date of this Agreement, as of the date of such amendment), the Company Reports did not, and any Company Reports filed with or furnished to the SEC subsequent to the date of this Agreement will not, contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements made therein, in light of the circumstances in which they were made, not misleading, except to the extent corrected by a subsequently filed Company Report prior to the date hereof.
(b) The Company is in compliance in all material respects with the applicable listing and corporate governance rules and regulations of Nasdaq.
(c) The Company maintains disclosure controls and procedures required by Rule 13a-15 or 15d-15 under the Exchange Act. Such disclosure controls and procedures are designed to ensure that information required to be disclosed by the Company in its filings with the SEC under the Exchange Act is recorded and reported on a timely basis to the individuals responsible for the preparation of the Company’s filings with the SEC under the Exchange Act. The Company maintains internal control over financial reporting (as defined in Rule 13a-15 or 15d-15, as applicable, under the Exchange Act). Such internal control over financial reporting is ) that are designed to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with GAAP. The Company has disclosed, based on the most recent evaluation of its Chief Executive Officer U.S. GAAP and its Chief Financial Officer prior includes policies and procedures that (i) pertain to the date maintenance of this Agreement, to records that in reasonable detail accurately and fairly reflect the transactions and dispositions of the assets of the Company’s auditors , (ii) provide reasonable assurance that transactions are recorded as necessary to permit preparation of financial statements in accordance with U.S. GAAP, and that receipts and expenditures of the audit committee Company are being made in accordance with authorizations of management and directors of the Company, and (iii) provide reasonable assurance regarding prevention or timely detection of unauthorized acquisition, use or disposition of the Company’s Board of Directors (x) any significant deficiencies and material weaknesses in the design or operation of its internal controls over financial reporting assets that are reasonably likely to adversely affect the Company’s ability to record, process, summarize and report financial information and (y) any fraud, whether or not material, that involves management or other employees who could have a significant role in the Company’s internal control over material effect on its financial reporting. The Company has made available prior to the date of this Agreement to Parent (I) either materials relating to or a summary of any disclosure of matters described in clauses (x) or (y) in the preceding sentence made by management of the Company to its auditors and audit committee on or after the Applicable Date and prior to the date of this Agreement and (II) any material communication on or after the Applicable Date and prior to the date of this Agreement made by management of the Company or its auditors to the audit committee as required by the listing standards of Nasdaq, the audit committee’s charter or professional standards of the Public Company Accounting Oversight Board. Since the Applicable Date and prior to the date of this Agreement, no complaints from any source regarding a material violation of accounting procedures, internal accounting controls or auditing matters or compliance with Law, including from Company Employees regarding questionable accounting, auditing or legal compliance matters have, to the Knowledge of the Company, been received by the Companystatements.
(dc) Each of the consolidated balance sheets included in or incorporated by reference into the Company Reports (including the related notes and schedules) fairly presents or, in filed with the case of Company Reports filed after the date of this Agreement, will fairly present, in each case, in all material respects, the consolidated financial position of the Company and its Subsidiaries, as of the date of such balance sheet, and each of the consolidated statements of operations, cash flows and changes in stockholders’ equity (deficit) included in or incorporated by reference into the Company Reports (including any related notes and schedules) SEC fairly presents, or, in the case of Company Reports filed after the date of this Agreement, will fairly present, in all material respects, the consolidated financial position of the Company and its consolidated Subsidiaries as of its date, and each caseof the consolidated statements of income, changes in shareholders’ equity and cash flows included in or incorporated by reference into the Company Reports (including any related notes and schedules) filed with the SEC fairly presents, or in the case of Company Reports filed after the date of this Agreement, will fairly present, in all material respects, the results of operations, retained earnings (loss) and changes in financial positionshareholders’ equity and cash flows, as the case may be, of the Company and its consolidated Subsidiaries for the periods set forth therein (subject, in the case of unaudited interim statements, to notes and normal year-end audit adjustments that are not or will not be material and the exclusion of certain notes in amount or effectaccordance with the rules of the SEC relating to unaudited financial statements), in each case in accordance with GAAP consistently applied during U.S. GAAP, Regulation S-X and the periods involved, rules and standards of the Public Company Accounting Oversight Board except as may be noted therein or in the notes theretotherein.
(ed) Neither The Company has implemented disclosure controls and procedures (as defined in Rule 13a-15(e) of the Company nor any of Exchange Act) that are reasonably designed to ensure that material information relating to the Company, including its Subsidiaries has incurred any IndebtednessSubsidiaries, or issued or sold any debt securities or rights required to acquire any debt security be included in reports filed under the Exchange Act is made known to the chief executive officer and chief financial officer of the Company or any of its Subsidiariesother Persons performing similar functions by others within those entities. Neither the Company nor, to the Company’s Knowledge, the terms Company’s independent registered public accounting firm has identified or been made aware of which“significant deficiencies” or “material weaknesses” (as defined by the Public Company Account Oversight Board) in the design or operation of the Company’s internal controls and procedures which are reasonably likely to adversely affect the Company’s ability to record, process, summarize and report financial data, in each case which has not been subsequently remediated. There is no fraud, whether or not material, that involves the terms of any instrument under which such Indebtedness, debt securities Company’s management or rights were issued, requires other employees who have a significant role in the public listing of such Indebtedness, debt securities or rights or the maintenance internal control over financial reporting utilized by the Company or any of and its Subsidiaries of registration under the Exchange ActSubsidiaries.
Appears in 2 contracts
Samples: Merger Agreement (Sigma Designs Inc), Merger Agreement (Silicon Laboratories Inc)
Company Reports; Financial Statements. (ai) The Company has filed or furnished, as applicable, on a timely basis, basis all forms, statements, certifications, reports and documents required to be filed or furnished by it with or to the SEC pursuant to the Exchange Act or the Securities Act since June 30December 31, 2014 2015 (the “Applicable Date”) (the forms, statements, reports and documents filed with or furnished to the SEC since the Applicable Date and those filed with or furnished to the SEC subsequent to the date of this Agreement, in each case as amendedincluding any amendments thereto, the “Company Reports”). The MLP has filed or furnished, as applicable, on a timely basis all forms, statements, certifications, reports and documents required to be filed or furnished by it with the SEC pursuant to the Exchange Act or the Securities Act since the Applicable Date (the forms, statements, reports and documents filed or furnished since the Applicable Date and those filed or furnished subsequent to the date of this Agreement, including any amendments thereto, the “MLP Reports”). Each of the Company Reports and MLP Reports, at the time of its filing or being furnished complied orcomplied, or if not yet filed or furnished, will comply when so filed or furnished comply, in all material respects with the applicable requirements of the Securities Act, the Exchange Act and the Xxxxxxxx-Xxxxx Act of 2002 (the “Xxxxxxxx-Xxxxx Act”), and any rules and regulations promulgated thereunder applicable to the Company Reports or MLP Reports, as applicable. As of their respective dates (or, if amended prior to the date of this Agreement, as of the date of such amendment), the Company Reports and the MLP Reports did not, and any none of the Company Reports and the MLP Reports filed with or furnished to the SEC subsequent to the date of this Agreement will notwhen so filed or furnished, contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements made therein, in light of the circumstances in which they were made, not misleading.
(b) The . Each of the Company and the MLP is in compliance in all material respects with the applicable listing and corporate governance rules and regulations of Nasdaqthe NYSE.
(cii) The Each of the Company and the MLP maintains disclosure controls and procedures required by Rule 13a-15 or 15d-15 under the Exchange Act. Such disclosure controls and procedures are reasonably designed to ensure that all material information required to be disclosed by the Company in its filings with or the SEC under the Exchange Act MLP, as applicable, is recorded and reported on a timely basis to the individuals responsible for the preparation of the Company’s or the MLP’s, as applicable, filings with the SEC under the Exchange Actand other public disclosure documents. The Company maintains and the MLP each maintain internal control over financial reporting (as defined in and meeting the requirements of Rule 13a-15 or 15d-15, as applicable, under the Exchange Act). Such internal control over financial reporting is designed to provide effective in providing reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with GAAP. The Each of the Company and the MLP has disclosed, based on the most recent evaluation of its Chief Executive Officer chief executive officer and its Chief Financial Officer chief financial officer prior to the date of this Agreement, to the Company’s its auditors and the audit committee of the Company’s Board its board of Directors directors (x1) any significant deficiencies and material weaknesses in the design or operation of its internal controls over financial reporting that are reasonably likely to adversely affect the Company’s or the MLP’s, as applicable, ability to record, process, summarize and report financial information and has identified for the Company’s or the MLP’s, as applicable, auditors and audit committee of its board of directors any material weaknesses in internal control over financial reporting and (y2) any fraud, whether or not material, that involves management or other employees who have a significant role in the Company’s or the MLP’s internal control over financial reporting. The Company has made available prior to Parent as of the date of this Agreement to Parent hereof (Ix) either materials relating to or a summary of any such disclosure of matters described in with respect to clauses (x1) or and (y2) in of the preceding sentence made by management of to the Company to its Company’s auditors and audit committee on or after the Applicable Date and prior to the date of this Agreement since December 31, 2016 and (IIy) any material communication on or after the Applicable Date and prior to the date of this Agreement since December 31, 2016 made by management of or the Company or its Company’s auditors to the audit committee as required or contemplated by the listing standards of Nasdaqthe NYSE, the audit committee’s charter or professional standards of the Public Company Accounting Oversight Board. Since the Applicable Date and prior to the date of this Agreement, no complaints from any source regarding a material violation of accounting procedures, internal accounting controls or auditing matters or compliance with Law, including from Company Employees regarding questionable accounting, auditing or legal compliance matters have, to the Knowledge of the Company, been received by the Company.
(diii) Each of the consolidated balance sheets included in or incorporated by reference into the Company Reports or the MLP Reports (including the related notes and schedules) fairly presents in all material respects, or, in the case of Company Reports and MLP Reports filed after the date of this Agreement, will fairly present, in each case, present in all material respects, the consolidated financial position of the Company and its consolidated Subsidiaries (or, in the case of the consolidated balance sheets included in or incorporated by reference into the MLP Reports, of the MLP and its consolidated Subsidiaries, ) as of the its date of such balance sheet, and each of the consolidated statements of operations, comprehensive income, changes in equity and cash flows and changes in stockholders’ equity (deficit) included in or incorporated by reference into the Company Reports (or, in the case of the consolidated statements of operations, comprehensive income, changes in equity and cash flows included in or incorporated by reference into the MLP Reports, of the MLP and its consolidated Subsidiaries), including any related notes and schedules) , fairly presentspresents in all material respects, or, in the case of Company Reports and MLP Reports filed after the date of this Agreement, will fairly present, in each case, present in all material respects, the results of operations, cash flows, retained earnings (loss) and changes in financial position, as the case may be, of the Company and its consolidated Subsidiaries (or as applicable, the MLP and its consolidated Subsidiaries) for the periods set forth therein (subject, in the case of unaudited statements, to notes and normal year-end audit adjustments that are not or will not be material in amount or effect), in each case in accordance with GAAP U.S. generally accepted accounting principles (“GAAP”) consistently applied during the periods involved, except as may be noted therein or in the notes theretotherein.
(e) Neither the Company nor any of its Subsidiaries has incurred any Indebtedness, or issued or sold any debt securities or rights to acquire any debt security of the Company or any of its Subsidiaries, the terms of which, or the terms of any instrument under which such Indebtedness, debt securities or rights were issued, requires the public listing of such Indebtedness, debt securities or rights or the maintenance by the Company or any of its Subsidiaries of registration under the Exchange Act.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Andeavor), Merger Agreement (Marathon Petroleum Corp)
Company Reports; Financial Statements. (ai) The Company has filed or furnished, as applicable, on a timely basis, basis all forms, statements, certifications, reports and documents required to be filed or furnished by it with or to the SEC pursuant to the Exchange Act or the Securities Act since June 30December 31, 2014 2013 (the “Applicable Date”) (the forms, statements, reports and documents filed with or furnished to the SEC since the Applicable Date and those filed with or furnished to the SEC subsequent to the date of this Agreement, in each case as amendedincluding any amendments thereto, the “Company Reports”). The MLP has filed or furnished, as applicable, on a timely basis all forms, statements, certifications, reports and documents required to be filed or furnished by it with the SEC pursuant to the Exchange Act or the Securities Act since the Applicable Date (the forms, statements, reports and documents filed or furnished since the Applicable Date and those filed or furnished subsequent to the date of this Agreement, including any amendments thereto, the “MLP Reports”). Each of the Company Reports and MLP Reports, at the time of its filing or being furnished complied orcomplied, or if not yet filed or furnished, will comply when so filed or furnished comply, in all material respects with the applicable requirements of the Securities Act, the Exchange Act and the Xxxxxxxx-Xxxxx Act of 2002 (the “Xxxxxxxx-Xxxxx Act”), and any rules and regulations promulgated thereunder applicable to the Company Reports or MLP Reports, as applicable. As of their respective dates (or, if amended prior to the date of this Agreement, as of the date of such amendment), the Company Reports and the MLP Reports did not, and any none of Company Reports and the MLP Reports filed with or furnished to the SEC subsequent to the date of this Agreement will notwhen so filed or furnished, contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements made therein, in light of the circumstances in which they were made, not misleading.
(b) The . Each of the Company and the MLP is in compliance in all material respects with the applicable listing and corporate governance rules and regulations of Nasdaqthe NYSE.
(cii) The Each of the Company and the MLP maintains disclosure controls and procedures required by Rule 13a-15 or 15d-15 under the Exchange Act. Such disclosure controls and procedures are reasonably designed to ensure that all material information required to be disclosed by the Company in its filings with or the SEC under the Exchange Act MLP, as applicable, is recorded and reported on a timely basis to the individuals responsible for the preparation of the Company’s or the MLP’s, as applicable, filings with the SEC under the Exchange Actand other public disclosure documents. The Company maintains and the MLP each maintain internal control over financial reporting (as defined in and meeting the requirements of Rule 13a-15 or 15d-15, as applicable, under the Exchange Act). Such internal control over financial reporting is designed to provide reasonable assurance regarding Each of the reliability of financial reporting Company and the preparation of financial statements for external purposes in accordance with GAAP. The Company MLP has disclosed, based on the most recent evaluation of its Chief Executive Officer chief executive officer and its Chief Financial Officer chief financial officer prior to the date of this Agreement, to the Company’s its auditors and the audit committee of the Company’s Board its board of Directors directors (xA) any significant deficiencies and material weaknesses in the design or operation of its internal controls over financial reporting that are reasonably likely to adversely affect the Company’s or the MLP’s, as applicable, ability to record, process, summarize and report financial information and has identified for the Company’s or the MLP’s, as applicable, auditors and audit committee of its board of directors any material weaknesses in internal control over financial reporting and (yB) any fraud, whether or not material, that involves management or other employees who have a significant role in the Company’s or the MLP’s internal control over financial reporting. The Company has made available prior to Parent as of the date of this Agreement to Parent hereof (Ii) either materials relating to or a summary of any such disclosure of matters described in clauses (x) or (y) in the preceding sentence made by management of to the Company to its Company’s auditors and audit committee on or after the Applicable Date and prior to the date of this Agreement since December 31, 2014 and (IIii) any material communication on or after the Applicable Date and prior to the date of this Agreement since December 31, 2014 made by management of or the Company or its Company’s auditors to the audit committee as required or contemplated by the listing standards of NasdaqNYSE, the audit committee’s charter or professional standards of the Public Company Accounting Oversight Board. Since the Applicable Date and prior to the date of this Agreement, no complaints from any source regarding a material violation of accounting procedures, internal accounting controls or auditing matters or compliance with Law, including from Company Employees regarding questionable accounting, auditing or legal compliance matters have, to the Knowledge of the Company, been received by the Company.
(diii) Each of the consolidated balance sheets included in or incorporated by reference into the Company Reports or the MLP Reports (including the related notes and schedules) fairly presents in all material respects, or, in the case of Company Reports and MLP Reports filed after the date of this Agreement, will fairly present, in each case, present in all material respects, the consolidated financial position of the Company and its consolidated Subsidiaries (or, in the case of the consolidated balance sheets included in or incorporated by reference into the MLP Reports, of the MLP and its consolidated Subsidiaries, ) as of the its date of such balance sheet, and each of the consolidated statements of operations, comprehensive income, changes in equity and cash flows and changes in stockholders’ equity (deficit) included in or incorporated by reference into the Company Reports (or, in the case of the consolidated statements of operations, comprehensive income, changes in equity and cash flows included in or incorporated by reference into the MLP Reports, of the MLP and its consolidated Subsidiaries), including any related notes and schedules) , fairly presentspresents in all material respects, or, or in the case of Company Reports and MLP Reports filed after the date of this Agreement, will fairly present, in each case, present in all material respects, the results of operations, cash flows, retained earnings (loss) and changes in financial position, as the case may be, of the Company and its consolidated Subsidiaries (or as applicable, the MLP and its consolidated Subsidiaries) for the periods set forth therein (subject, in the case of unaudited statements, to notes and normal year-end audit adjustments that are not or will not be material in amount or effect), in each case in accordance with GAAP U.S. generally accepted accounting principles (“GAAP”) consistently applied during the periods involved, except as may be noted therein or in the notes theretotherein.
(e) Neither the Company nor any of its Subsidiaries has incurred any Indebtedness, or issued or sold any debt securities or rights to acquire any debt security of the Company or any of its Subsidiaries, the terms of which, or the terms of any instrument under which such Indebtedness, debt securities or rights were issued, requires the public listing of such Indebtedness, debt securities or rights or the maintenance by the Company or any of its Subsidiaries of registration under the Exchange Act.
Appears in 2 contracts
Samples: Merger Agreement (Tesoro Corp /New/), Merger Agreement (Western Refining, Inc.)
Company Reports; Financial Statements. (ai) The filings required to be made by Company has since January 1, 2006 under the Securities Act and the Exchange Act have been filed or furnished, as applicable, on a timely basis, with the SEC including all forms, statements, certificationsreports, reports agreements (oral or written) and documents required all documents, exhibits, amendments and supplements appertaining thereto, and complied, as of their respective dates or as of the date of final amendment, as applicable, and in the case of such filings made after the date hereof will comply, in all material respects with all applicable requirements of the appropriate statutes and the rules and regulations thereunder. Company has made available (except to be the extent available through XXXXX or IDEA) to Parent each registration statement, report, proxy statement and information statement filed or furnished by it with or to the SEC pursuant to the Exchange Securities Act or the Securities Exchange Act since June 30(all such filings, 2014 (the “Applicable Date”) (the forms, statements, reports including all amendments and documents filed with or furnished to the SEC since the Applicable Date and those filed with or furnished to the SEC subsequent to the date of this Agreement, in each case as amendedsupplements thereto, the “Company Reports”)) since January 1, 2006, including (i) Company’s Annual Reports on Form 10-K, (ii) Company’s Quarterly Reports on Form 10-Q, and (iii) Company’s Current Reports on Form 8-K, each in the form (including exhibits, annexes and any amendments thereto) required by the SEC under the Securities Act or the Exchange Act, as the case may be. Each None of the Company Reports, at Reports (in the time case of its filing or being furnished complied or, if not yet Company Reports filed or furnished, will comply in all material respects with the applicable requirements of pursuant to the Securities Act, the Exchange Act and the Xxxxxxxx-Xxxxx Act of 2002 (the “Xxxxxxxx-Xxxxx Act”), and any rules and regulations promulgated thereunder applicable to the Company Reports. As of their respective dates (or, if amended prior to the date of this Agreement, as of their effective dates, contained, nor in the date case of such amendment), the Company Reports did not, and any Company Reports filed with or furnished to the SEC subsequent to after the date of this Agreement hereof will notcontain, contain any untrue statement of a material fact or omit omitted to state a material fact required to be stated therein or necessary to make the statements made therein not misleading. None of the Company Reports (in the case of Company Reports filed pursuant to the Exchange Act) as of the respective dates filed with the SEC or first mailed to stockholders, as applicable, contained, nor in the case of such Company Reports filed after the date hereof will contain, any untrue statement of a material fact or omitted to state any material fact necessary in order to make the statements therein, in the light of the circumstances in under which they were made, not misleading.
(b) . The consolidated financial statements of Company is and its Subsidiaries included in compliance or incorporated by reference into the Company Reports comply, and in the case of consolidated financial statements included in or incorporated by reference into the Company Reports filed after the date hereof will comply, in all material respects with the applicable listing and corporate governance rules and regulations of Nasdaq.
(c) The Company maintains disclosure controls and procedures required by Rule 13a-15 or 15d-15 under the Exchange Act. Such disclosure controls and procedures are designed to ensure that information required to be disclosed by the Company in its filings with the SEC under the Exchange Act is recorded and reported on a timely basis to the individuals responsible for the preparation of the Company’s filings with the SEC under the Exchange Actrespect thereto. The Company maintains internal control over financial reporting (as defined in Rule 13a-15 or 15d-15, as applicable, under the Exchange Act). Such internal control over financial reporting is designed to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with GAAP. The Company has disclosed, based on the most recent evaluation of its Chief Executive Officer and its Chief Financial Officer prior to the date of this Agreement, to the Company’s auditors and the audit committee of the Company’s Board of Directors (x) any significant deficiencies and material weaknesses in the design or operation of its internal controls over financial reporting that are reasonably likely to adversely affect the Company’s ability to record, process, summarize and report financial information and (y) any fraud, whether or not material, that involves management or other employees who have a significant role in the Company’s internal control over financial reporting. The Company has made available prior to the date of this Agreement to Parent (I) either materials relating to or a summary of any disclosure of matters described in clauses (x) or (y) in the preceding sentence made by management of the Company to its auditors and audit committee on or after the Applicable Date and prior to the date of this Agreement and (II) any material communication on or after the Applicable Date and prior to the date of this Agreement made by management of the Company or its auditors to the audit committee as required by the listing standards of Nasdaq, the audit committee’s charter or professional standards of the Public Company Accounting Oversight Board. Since the Applicable Date and prior to the date of this Agreement, no complaints from any source regarding a material violation of accounting procedures, internal accounting controls or auditing matters or compliance with Law, including from Company Employees regarding questionable accounting, auditing or legal compliance matters have, to the Knowledge of the Company, been received by the Company.
(d) Each of the consolidated balance sheets included in or incorporated by reference into the Company Reports (including the related notes and schedules) fairly presents orpresents, and in the case of consolidated balance sheets included in or incorporated by reference into Company Reports filed after the date of this Agreement, hereof will present fairly present, in each case, in all material respects, the consolidated financial position of the Company and its Subsidiaries, Subsidiaries as of the date of such balance sheetits date, and each of the consolidated statements of operations, income and consolidated statements of cash flows and changes in stockholders’ equity (deficit) included in or incorporated by reference into the Company Reports (including any related notes and schedules) fairly presents, or, and in the case of consolidated statements of income and consolidated statements of cash flows included in or incorporated by reference into Company Reports filed after the date of this Agreement, hereof will fairly present, in each case, in all material respects, fairly the results of operations, retained earnings (loss) and changes in financial position, as the case may be, of the Company and its Subsidiaries for the periods set forth therein (subject, in the case of unaudited statements, to the absence of notes and normal year-end audit adjustments that are not or will not be material in amount or effectadjustments), in each case in accordance with U.S. GAAP consistently applied during the periods involved, except as may be noted therein or in the notes theretotherein.
(eii) Neither the As of October 31, 2009, Company nor any of and its Subsidiaries has have on a consolidated, unaudited basis (x) cash (excluding restricted cash and net of issued but uncleared checks and drafts) and cash equivalents (as such terms are defined under U.S. GAAP) (collectively, “Cash”) totaling $26.4 million, (y) marketable securities (as such term is defined under U.S. GAAP, and excluding auction rate or similar securities and securities involved or potentially involved in a Securities Investors Protection Act action or claim) (collectively, “Marketable Securities”) totaling $10.3 million, and (z) Working Capital totaling $(27.4) million. “Working Capital” means (x) Company’s current assets (as such term is defined under U.S. GAAP), excluding Cash and Marketable Securities, minus (y) Company’s current liabilities (as such term is defined under U.S. GAAP), excluding current liabilities with respect to all fees and expenses incurred any Indebtedness, or issued or sold any debt securities or rights to acquire any debt security by Company in connection with this Agreement and the transactions contemplated hereby. Current assets and current liabilities shall be calculated consistently with the presentation of these items in the most recent Company or any of its Subsidiaries, the terms of which, or the terms of any instrument under which such Indebtedness, debt securities or rights were issued, requires the public listing of such Indebtedness, debt securities or rights or the maintenance by the Company or any of its Subsidiaries of registration under the Exchange ActReports.
Appears in 2 contracts
Samples: Merger Agreement (Quadramed Corp), Merger Agreement (Francisco Partners II LP)
Company Reports; Financial Statements. Except as set forth in Section 5.1(e) of the Company Disclosure Letter:
(ai) The Company has filed or furnished, as applicable, on a timely basis, basis all forms, statements, certifications, reports and documents required to be filed or furnished by it with or to the SEC pursuant to the Exchange Act or the Securities Act since June 30on or after December 31, 2014 2016 (the “Applicable Date”) (the forms, statements, certifications, reports and documents filed with or furnished to the SEC since the Applicable Date and those filed with or furnished to the SEC subsequent to the date of this Agreementhereof, in each case as amendedincluding any amendments thereto, the “Company Reports”). Each of the Company Reports, at the time of its filing or being furnished Reports complied or, if not yet filed or furnished, will comply in all material respects with the applicable requirements of the Securities Act, the Exchange Act and the Xxxxxxxx-Xxxxx Act of 2002 (the “Xxxxxxxx-Xxxxx Act”), and any rules and regulations promulgated thereunder applicable to the Company Reports. As of their respective dates (or, if amended prior to the date of this Agreementhereof, as of the date of such amendment), the Company Reports did not, and any Company Reports filed with or furnished to with the SEC subsequent to the date of this Agreement hereof will not, contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements made therein, in light of the circumstances in which they were made, not misleading. As of the date hereof, there are no material outstanding or unresolved comments received from the SEC with respect to any of the Company Reports.
(bii) The Since the Applicable Date, subject to any applicable grace periods, the Company has been and is in compliance in all material respects with the applicable provisions of (A) the Xxxxxxxx-Xxxxx Act and (B) the applicable listing and corporate governance rules and regulations of Nasdaq. As of the date of this Agreement, no executive officer of the Company has failed in any respect to make the certifications required of him or her under Section 302 or 906 of the Xxxxxxxx-Xxxxx Act.
(ciii) Each of the consolidated financial statements included in or incorporated by reference into the Company Reports as amended prior to the date hereof (including the related notes and schedules thereto) have been or will be, as the case may be, prepared in accordance with U.S. generally accepted accounting principles (“GAAP”) (except as may be indicated in the notes thereto), consistently applied, and fairly present in all material respects, or, in the case of Company Reports filed after the date hereof, will fairly present in all material respects, the consolidated financial position of the Company and its consolidated Subsidiaries as of the date thereof and the consolidated results of operations and cash flows and shareholders’ equity for the periods then ended (except (x) as may be indicated in the notes to such financial statements or (y) in the case of unaudited financial statements, for the fact that such financial statements may not contain certain footnotes and other presentation items, are subject to normal year-end adjustments or as otherwise permitted by Form 10-Q.
(iv) The Company has established and maintains disclosure a system of internal controls and procedures required by Rule 13a-15 or 15d-15 under the Exchange Act. Such disclosure controls and procedures are designed to ensure that information required to be disclosed by the Company in its filings with the SEC under the Exchange Act is recorded and reported on a timely basis to the individuals responsible for the preparation of the Company’s filings with the SEC under the Exchange Act. The Company maintains internal control over financial reporting (as defined in Rule 13a-15 or 15d-15, as applicable, Rules 13a-15(f) and 15d-15(f) under the Exchange Act). Such internal control over financial reporting , which is reasonably designed to provide reasonable assurance assurances regarding the reliability of the Company’s financial reporting and the preparation of the Company’s financial statements for external purposes in accordance with GAAP. The Company’s “disclosure controls and procedures” (as defined in Rules 13a-15(e) and 15d-15(e) under the Exchange Act) are reasonably designed to ensure that (1) all material information (both financial and non-financial) required to be disclosed by the Company has disclosedin the reports that it files or submits under the Exchange Act is recorded, based processed, summarized and reported to the individuals responsible for preparing such reports within the time periods specified in the rules and forms of the SEC and (2) all such material 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 principal executive officer and principal financial officer of the Company required under the Exchange Act with respect to such reports. Based on the most recent evaluation of its Chief Executive Officer and its Chief Financial Officer internal controls over financial reporting prior to the date of this Agreement, management of the Company has disclosed to the Company’s auditors and the audit committee Audit Committee of the Company’s Board of Directors of the Company (xa) any significant deficiencies and material weaknesses in the design or operation of its internal controls over financial reporting that are (as defined in Rule 13a-15(f) of the Exchange Act) which are, to the Knowledge of the Company, reasonably likely to adversely affect the Company’s ability to record, process, summarize and report financial information and (yb) any fraudfraud or, whether or not materialto the Knowledge of the Company, any allegation of fraud that involves management or other employees who have a significant role in the Company’s internal control controls over financial reporting. The Company has made available prior to the date For purposes of this Agreement to Parent (I) either materials relating to or a summary of any disclosure of matters described in clauses (x) or (y) in the preceding sentence made by management of the Company to its auditors and audit committee on or after the Applicable Date and prior to the date of this Agreement and (II) any material communication on or after the Applicable Date and prior to the date of this Agreement made by management of the Company or its auditors to the audit committee as required by the listing standards of NasdaqAgreement, the audit committee’s charter or professional standards of terms “significant deficiency” and “material weakness” shall have the meanings assigned to them by the Public Company Accounting Oversight BoardBoard in Auditing Standard No. Since the Applicable Date and prior to the date of this Agreement, no complaints from any source regarding a material violation of accounting procedures, internal accounting controls or auditing matters or compliance with Law, including from Company Employees regarding questionable accounting, auditing or legal compliance matters have, to the Knowledge of the Company, been received by the Company2.
(d) Each of the consolidated balance sheets included in or incorporated by reference into the Company Reports (including the related notes and schedules) fairly presents or, in the case of Company Reports filed after the date of this Agreement, will fairly present, in each case, in all material respects, the consolidated financial position of the Company and its Subsidiaries, as of the date of such balance sheet, and each of the consolidated statements of operations, cash flows and changes in stockholders’ equity (deficit) included in or incorporated by reference into the Company Reports (including any related notes and schedules) fairly presents, or, in the case of Company Reports filed after the date of this Agreement, will fairly present, in each case, in all material respects, the results of operations, retained earnings (loss) and changes in financial position, as the case may be, of the Company and its Subsidiaries for the periods set forth therein (subject, in the case of unaudited statements, to notes and normal year-end audit adjustments that are not or will not be material in amount or effect), in each case in accordance with GAAP consistently applied during the periods involved, except as may be noted therein or in the notes thereto.
(e) Neither the Company nor any of its Subsidiaries has incurred any Indebtedness, or issued or sold any debt securities or rights to acquire any debt security of the Company or any of its Subsidiaries, the terms of which, or the terms of any instrument under which such Indebtedness, debt securities or rights were issued, requires the public listing of such Indebtedness, debt securities or rights or the maintenance by the Company or any of its Subsidiaries of registration under the Exchange Act.
Appears in 2 contracts
Samples: Bid Conduct Agreement, Bid Conduct Agreement (CommScope Holding Company, Inc.)
Company Reports; Financial Statements. (ai) The Company has filed or furnished, as applicable, on a timely basis, basis all forms, statements, certifications, reports and documents required to be filed or furnished by it with or to the SEC pursuant to under the Exchange Act or the Securities Act since June 30December 31, 2014 2004 (the “Applicable Date”) (the forms, statements, reports and documents filed with or furnished to the SEC since the Applicable Date and those filed with or furnished to the SEC subsequent to the date of this Agreement, in each case as amendedhereof including any amendments thereto, the “Company Reports”). Each of the Company Reports, at the time of its filing or being furnished complied orfurnished, complied, or if not yet filed or furnished, will comply comply, in all material respects with the applicable requirements of the Securities Act, the Exchange Act and the Xxxxxxxx-Xxxxx Act of 2002 (the “Xxxxxxxx-Xxxxx Act”), and any rules and regulations promulgated thereunder applicable to the Company Reports. As of their respective dates (or, if amended prior to the date of this Agreementhereof, as of the date of such amendment), ) the Company Reports did not, and any Company Reports filed with or furnished to with the SEC subsequent to the date of this Agreement hereof will not, contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements made therein, in light of the circumstances in which they were made, not misleading.
(bii) The Company is in compliance in all material respects with the applicable listing and corporate governance rules and regulations of Nasdaqthe NYSE. Except as permitted by the Exchange Act, including Sections 13(k)(2) and (3) or rules of the SEC, since the enactment of the Xxxxxxxx-Xxxxx Act, neither the Company nor any of its “Affiliates” (as defined in Rule 405 promulgated under the Securities Act) has made, arranged or modified (in any material way) any extension of credit in the form of a personal loan to any executive officer or director of the Company.
(ciii) The Company maintains disclosure controls and procedures required by Rule 13a-15 or 15d-15 under the Exchange Act. Such disclosure controls and procedures are designed effective to ensure that information required to be disclosed by the Company in its filings with the SEC under the Exchange Act is recorded and reported on a timely basis to the individuals responsible for the preparation of the Company’s filings with the SEC under the Exchange Actand other public disclosure documents. The Company maintains internal control over financial reporting (as defined in Rule 13a-15 or 15d-15, as applicable, under the Exchange Act). Such internal control over financial reporting is designed to provide effective in providing reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with GAAPgenerally accepted accounting principles and includes policies and procedures that (i) pertain to the maintenance of records that in reasonable detail accurately and fairly reflect the transactions and dispositions of the asset of the Company, (ii) provide reasonable assurance that transactions are recorded as necessary to permit preparation of financial statements in accordance with generally accepted accounting principles, and that receipts and expenditures of the Company are being made only in accordance with authorizations of management and directors of the Company, and (iii) provide reasonable assurance regarding prevention or timely detection of unauthorized acquisition, use or disposition of the Company’s assets that could have a material effect on its financial statements. The Company has disclosed, based on the most recent evaluation of its Chief Executive Officer chief executive officer and its Chief Financial Officer chief financial officer prior to the date of this Agreementhereof, to the Company’s auditors and the audit committee of the Company’s Board board of Directors directors (xA) any significant deficiencies and material weaknesses in the design or operation of its internal controls over financial reporting that are reasonably likely to adversely affect the Company’s ability to record, process, summarize and report financial information and has identified for the Company’s auditors and audit committee of the Company’s board of directors any material weaknesses in internal control over financial reporting and (yB) any fraud, whether or not material, that involves management or other employees who have a significant role in the Company’s internal control over financial reporting. The Company has made available prior to the date of this Agreement to Parent (I) either materials relating to or a summary of any disclosure of matters described in clauses (x) or (y) in the preceding sentence made by management of the Company to its auditors and audit committee on or after the Applicable Date and prior to the date of this Agreement and (II) any material communication on or after the Applicable Date and prior to the date of this Agreement made by management of the Company or its auditors to the audit committee as required by the listing standards of Nasdaq, the audit committee’s charter or professional standards of the Public Company Accounting Oversight Board. Since the Applicable Date and prior to the date of this AgreementDate, no material complaints from any source regarding a material violation of accounting proceduresaccounting, internal accounting controls or auditing matters or compliance with Lawmatters, including and no concerns from Company Employees employees regarding questionable accountingaccounting or auditing matters, auditing or legal compliance matters have, to the Knowledge of the Company, have been received by the Company. No attorney representing the Company or any of its Subsidiaries, whether or not employed by the Company or any of its Subsidiaries, has reported evidence of a violation of securities laws, breach of fiduciary duty or similar violation by the Company or any of its officers, directors, employees or agents to the Company’s chief legal officer, audit committee (or other committee designated for the purpose) of the board of directors or the board of directors pursuant to the rules in adopted pursuant to Section 307 of the Xxxxxxxx-Xxxxx Act or any Company policy contemplating such reporting, including in instances not required by those rules.
(div) Each of the consolidated balance sheets included in or incorporated by reference into the Company Reports (including the related notes and schedules) fairly presents presents, or, in the case of Company Reports filed after the date of this Agreementhereof, will fairly present, in each case, present in all material respects, respects the consolidated financial position of the Company and its Subsidiaries, consolidated Subsidiaries as of the its date of such balance sheet, and each of the consolidated statements of operations, cash flows and changes in stockholdersshareholders’ equity (deficit) and cash flows included in or incorporated by reference into the Company Reports (including any related notes and schedules) fairly presents, or, or in the case of Company Reports filed after the date of this Agreementhereof, will fairly present, in each case, present in all material respects, respects the results of operations, retained earnings (loss) and changes in financial position, as the case may be, of the Company and its Subsidiaries such companies for the periods set forth therein (subject, in the case of unaudited statements, to notes and normal year-end audit adjustments that are not or will not be material in amount or effect), in each case in accordance with GAAP U.S. generally accepted accounting principles (“GAAP”) consistently applied during the periods involved, except as may be noted therein or in the notes theretotherein.
(e) Neither the Company nor any of its Subsidiaries has incurred any Indebtedness, or issued or sold any debt securities or rights to acquire any debt security of the Company or any of its Subsidiaries, the terms of which, or the terms of any instrument under which such Indebtedness, debt securities or rights were issued, requires the public listing of such Indebtedness, debt securities or rights or the maintenance by the Company or any of its Subsidiaries of registration under the Exchange Act.
Appears in 1 contract
Company Reports; Financial Statements. (ai) The Company has filed or furnished, as applicable, on a timely basis, all forms, statements, certifications, reports and documents required to be filed or furnished by it with or to the SEC pursuant to the Exchange Act or the Securities Act since June 30January 1, 2014 2016 (the “Applicable Date”) (the forms, statements, certifications, reports and documents filed with or furnished to by the SEC Company since the Applicable Date and those filed with or furnished to by the SEC Company subsequent to the date of this Agreementhereof, in each case as amendedincluding any amendments thereto, the “Company Reports”). Each of the Company Reports, at the time of its filing or being furnished furnished, complied or, if not yet filed or furnished, will comply in all material respects with the applicable requirements of the Securities Act, the Exchange Act and the Xxxxxxxx-Xxxxx Act of 2002 and the rules and regulations promulgated thereunder (the “Xxxxxxxx-Xxxxx Act”), and any rules and regulations promulgated thereunder ) applicable to the Company Reports. As of their respective dates (or, if amended prior to the date of this Agreementhereof, as of the Table of Contents date of such amendment), the Company Reports did not, and any Company Reports filed with or furnished to the SEC subsequent to the date of this Agreement hereof will not, contain any untrue statement of a material fact or omit to state a material fact required to be stated or incorporated by reference therein or necessary to make the statements made therein, in light of the circumstances in which they were made, not misleading. Except as would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect, as of the date hereof, (A) there are no outstanding or unresolved comments in comment letters received from the SEC or its staff, (B) the Company has not received notice from the SEC that any of the Company Reports is subject to ongoing review, outstanding comment or outstanding investigation by the SEC and (C) none of the Subsidiaries of the Company is subject to the reporting requirements of Section 13(a) or 15(d) of the Exchange Act.
(bii) The Company is in compliance in all material respects with the applicable listing and corporate governance rules and regulations of Nasdaqthe NYSE.
(ciii) The Company maintains disclosure controls and procedures required by Rule 13a-15 or 15d-15 under the Exchange Act. Such disclosure controls and procedures are designed to ensure that information required to be disclosed by the Company in its filings with the SEC under the Exchange Act is recorded and reported on a timely basis to the individuals responsible for the preparation of the Company’s filings with the SEC under the Exchange Act. The Company maintains internal control over financial reporting (as defined in Rule 13a-15 or 15d-15, as applicable, under the Exchange Act). Such internal control over financial reporting is designed to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with GAAP. The Company has disclosed, based on the most recent evaluation of its Chief Executive Officer and its Chief Financial Officer prior to the date of this Agreement, to the Company’s auditors and the audit committee of the Company’s Board of Directors (x) any significant deficiencies and material weaknesses in the design or operation of its internal controls over financial reporting that are reasonably likely to adversely affect the Company’s ability to record, process, summarize and report financial information and (y) any fraud, whether or not material, that involves management or other employees who have a significant role in the Company’s internal control over financial reporting. The Company has made available prior to the date of this Agreement to Parent (I) either materials relating to or a summary of any disclosure of matters described in clauses (x) or (y) in the preceding sentence made by management of the Company to its auditors and audit committee on or after the Applicable Date and prior to the date of this Agreement and (II) any material communication on or after the Applicable Date and prior to the date of this Agreement made by management of the Company or its auditors to the audit committee as required by the listing standards of Nasdaq, the audit committee’s charter or professional standards of the Public Company Accounting Oversight Board. Since the Applicable Date and prior to the date of this Agreement, no complaints from any source regarding a material violation of accounting procedures, internal accounting controls or auditing matters or compliance with Law, including from Company Employees regarding questionable accounting, auditing or legal compliance matters have, to the Knowledge of the Company, been received by the Company.
(dA) Each of the consolidated balance sheets included in or incorporated by reference into the Company Reports filed prior to the date hereof (including the related notes and schedules) fairly presents orfairly, in all material respects, and, in the case of Company Reports filed after the date of this Agreementhereof, will fairly present, in each casepresent fairly, in all material respects, the consolidated financial position of the Company and its Subsidiaries, consolidated Subsidiaries as of the its date of such balance sheet, and (B) each of the Company’s consolidated statements of operationsincome (loss), consolidated cash flows and changes in stockholders’ equity (deficit) included in or incorporated by reference into the Company Reports filed prior to the date hereof (including any related notes and schedules) fairly presentspresents fairly, orin all material respects, and, in the case of Company Reports filed after the date of this Agreementhereof, will fairly present, in each casepresent fairly, in all material respects, the consolidated results of its operations, retained earnings (loss) its consolidated cash flows and changes in financial positionstockholders’ equity, as the case may be, of the Company and its consolidated Subsidiaries for the periods set forth therein (subject, in the case of unaudited statements, to notes and normal year-end adjustments), in the case of each of clause (A) and clause (B), in accordance with GAAP applied on a consistent basis during the periods included (subject, in the case of unaudited statements, to the absence of notes and normal year-end audit adjustments that are not or will not be material in amount or effect). The Company has been and is in material compliance with the applicable provisions of the Xxxxxxxx-Xxxxx Act.
(iv) The Company has established and maintains, and at all times since the Applicable Date has maintained, “disclosure controls and procedures” and “internal control over financial reporting” (in each case in accordance with GAAP consistently applied during as defined pursuant to Rule 13a-15 and Rule 15d-15 promulgated under the periods involved, except Exchange Act) as may required by Rule 13a-15 under the Exchange Act. The Company’s disclosure controls and procedures are reasonably designed to ensure that all (i) material information required to be noted therein or disclosed by the Company in the notes thereto.
reports and other documents that it files or furnishes pursuant to the Exchange Act is recorded, processed, summarized and reported within the time periods specified in the rules and forms of the SEC; and (eii) Neither such material information is accumulated and communicated to the Company’s management as appropriate to allow timely decisions regarding required disclosure and to make the certifications required pursuant to Sections 302 and 906 of the Xxxxxxxx-Xxxxx Act. The Company’s independent registered public accountant has issued (and not subsequently withdrawn or qualified) an attestation report concluding that the Company nor maintained effective internal control over financial reporting as of December 31, 2017. Since December 31, 2017, no Table of Contents events, facts or circumstances have occurred such that management would not be able to complete its assessment of the effectiveness of the Company’s internal control over financial reporting in compliance with the requirements of Section 404 of the Xxxxxxxx-Xxxxx Act when next due and for the fiscal year ending December 31, 2018, and conclude, after such assessment, that such system was effective and did not identify (i) any material weaknesses in its internal controls over financial reporting and (ii) any allegation of its Subsidiaries has incurred any Indebtedness, or issued or sold any debt securities or rights to acquire any debt security fraud that involves management of the Company or any other employees of the Company and its SubsidiariesSubsidiaries who have a significant role in the Company’s internal controls over financial reporting or disclosure controls and procedures. Since January 1, 2016, the terms principal executive officer and principal financial officer of whichthe Company have made all certifications required by the Xxxxxxxx-Xxxxx Act. Neither the Company nor its principal executive officer or principal financial officer has received notice from any Governmental Entity challenging or questioning the accuracy, completeness, form or the terms manner of any instrument under which such Indebtedness, debt securities or rights were issued, requires the public listing filing of such Indebtednesscertifications.
(v) Since the Applicable Date, debt securities neither the Company nor, to the Company’s Knowledge, the Company’s independent registered public accounting firm has identified or rights been made aware of (A) any significant deficiency or material weakness in the maintenance system of internal control over financial reporting utilized by the Company and its Subsidiaries; or (B) any fraud that involves the Company’s management or other employees who have a role in the preparation of financial statements or the internal control over financial reporting utilized by the Company and its Subsidiaries of registration under the Exchange ActSubsidiaries.
Appears in 1 contract
Company Reports; Financial Statements. Except as set forth on Schedule 3.7 hereto:
(a) The Company has filed or furnished, as applicable, on a timely basis, all forms, filings, registrations, submissions, statements, certifications, reports and documents required to be filed or furnished by it with or to the SEC pursuant to under the Exchange Act or the Securities Act since June 30March 19, 2014 (the “Applicable Date”) 2012 (the forms, statements, reports and documents filed with or furnished to the SEC since the Applicable Date and those filed with or furnished to the SEC subsequent to the date of this AgreementMarch 19, in each case as amended2012, the “Company Reports”). Each of the Company Reports, at the time of its filing or being furnished complied orcomplied, or if not yet filed or furnished, will comply comply, in all material respects with the applicable requirements of the Securities Act, the Exchange Act and the Xxxxxxxx-Xxxxx Act of 2002 (the “Xxxxxxxx-Xxxxx Exchange Act”), and any rules and regulations promulgated thereunder applicable to the Company Reports. As of their respective dates (or, if amended prior to the date of this Agreementhereof, as of the date of such amendment), the Company Reports did not, and any Company Reports filed with or furnished to with the SEC subsequent to the date of this Agreement hereof will not, contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements made therein, in light of the circumstances in which they were made, not misleading.
(b) The Company’s consolidated financial statements (including, in each case, any notes thereto) contained in the Company is Reports, were prepared (i) in accordance with GAAP applied on a consistent basis throughout the periods indicated (except as may be indicated in the notes thereto or where such information and footnotes contained in such financial statements are not required under the rules of the SEC to be in compliance with GAAP) and (ii) in compliance as to form, as of their respective date of filing with the SEC, in all material respects with applicable accounting requirements and with the applicable listing and corporate governance published rules and regulations of Nasdaqthe SEC with respect thereto, and in each case such consolidated financial statements fairly presented, in all material respects, the consolidated financial position, results of operations, changes in stockholder’s equity and cash flows of the Company and the consolidated Company Subsidiaries as of the respective dates thereof and for the respective periods covered thereby (subject, in the case of unaudited statements, to normal year-end adjustments which were not and which are not expected to be, individually or in the aggregate, material to the Company and its consolidated Company Subsidiaries taken as a whole).
(c) Except as set forth on Schedule 3.7(d), the Company is in material compliance with all provisions of the Sarbanes Oxley Act of 2002 that are applicable to it. The Company maintains disclosure controls and procedures required by Rule 13a-15 or 15d-15 under the Exchange Act. Such disclosure controls and procedures are designed to ensure provide reasonable assurance that information required to be disclosed by the Company in its filings with the SEC under the Exchange Act is recorded and reported on a timely basis to the individuals responsible for the preparation of the Company’s filings with the SEC under the Exchange Actand other public disclosure documents. The Company maintains internal control over financial reporting (as defined in Rule 13a-15 or 15d-15, as applicable, under the Exchange Act). Such internal control over financial reporting is designed to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with GAAP and includes policies and procedures that (i) pertain to the maintenance of records that in reasonable detail accurately and fairly reflect the transactions and dispositions of the assets of the Company, (ii) provide reasonable assurance that transactions are recorded as necessary to permit preparation of financial statements in accordance with GAAP. , and that receipts and expenditures of the Company are being made only in accordance with authorizations of management and directors of the Company, and (iii) provide reasonable assurance regarding prevention or timely detection of unauthorized acquisition, use or disposition of the Company’s assets that could have a material effect on its financial statements.
(d) The Company has disclosed, based on the most recent evaluation of its Chief Executive Officer chief executive officer and its Chief Financial Officer chief financial officer prior to the date of this Agreementhereof, to the Company’s auditors and the audit committee of the Company’s Company Board of Directors (xA) any significant deficiencies and material weaknesses in the design or operation of its internal controls control over financial reporting that are reasonably likely to adversely affect the Company’s ability to record, process, summarize and report financial information and has identified for the Company’s auditors and audit committee of the Company Board any material weaknesses in internal control over financial reporting and (yB) any fraud, whether or not material, that involves management or other employees who have a significant role in the Company’s internal control over financial reporting. The Company has made available prior to the date of this Agreement to Parent (I) either materials relating to or a summary of any disclosure of matters described in clauses (x) or (y) in the preceding sentence made by management of the Company to its auditors and audit committee on or after the Applicable Date and prior to the date of this Agreement and (II) any material communication on or after the Applicable Date and prior to the date of this Agreement made by management of the Company or its auditors to the audit committee as required by the listing standards of Nasdaq, the audit committee’s charter or professional standards of the Public Company Accounting Oversight Board. Since the Applicable Date and prior to the filing date of this Agreement, no complaints from any source regarding a material violation of accounting procedures, internal accounting controls or auditing matters or compliance with Law, including from Company Employees regarding questionable accounting, auditing or legal compliance matters have, to the Knowledge of the Company’s most recently filed periodic report under the Exchange Act, there have been received by no changes in the Company.
(d) Each of ’s internal control over financial reporting or disclosure controls and procedures that could significantly affect the consolidated balance sheets included in or incorporated by reference into the Company Reports (including the related notes and schedules) fairly presents or, in the case of Company Reports filed after the date of this Agreement, will fairly present, in each case, in all material respects, the consolidated financial position of the Company and its Subsidiaries, as of the date of such balance sheet, and each of the consolidated statements of operations, cash flows and changes in stockholders’ equity (deficit) included in or incorporated by reference into the Company Reports (including any related notes and schedules) fairly presents, or, in the case of Company Reports filed after the date of this Agreement, will fairly present, in each case, in all material respects, the results of operations, retained earnings (loss) and changes in financial position, as the case may be, of the Company and its Subsidiaries for the periods set forth therein (subject, in the case of unaudited statements, to notes and normal year-end audit adjustments that are not or will not be material in amount or effect), in each case in accordance with GAAP consistently applied during the periods involved, except as may be noted therein or in the notes theretoCompany’s internal controls.
(e) Neither the The Company nor and Company Subsidiaries have filed all reports and statements, together with any of amendments required to be made with respect thereto, that they were required to file since March 19, 2012, with any Governmental Authority having jurisdiction over its Subsidiaries has incurred any Indebtedness, or issued or sold any debt securities or rights to acquire any debt security of the Company business or any of its Subsidiariesassets or properties (each a “Regulatory Authority”), and has paid all fees and assessments due and payable in connection therewith, except where the terms failure to so file such reports and statements or pay such fees is not reasonably likely to have, individually or in the aggregate, a Material Adverse Effect. As of whichtheir respective dates, such reports and statements complied with all the laws, rules and regulations of the applicable Regulatory Authority with which they were filed except for noncompliance that is not reasonably likely to have, individually or in the terms of any instrument under which such Indebtednessaggregate, debt securities or rights were issued, requires the public listing of such Indebtedness, debt securities or rights or the maintenance by the Company or any of its Subsidiaries of registration under the Exchange Acta Material Adverse Effect.
Appears in 1 contract
Company Reports; Financial Statements. The Company has delivered or made available to CIENA each registration statement, report, proxy statement or information statement prepared by it since December 31, 2000 (the “Company Audit Date”), including (a) The Company has the Company’s Annual Report on Form 10-K for the year ended December 31, 2000 (b) the Company’s Quarterly Reports on Form 10-Q for the quarterly periods ended March 31, June 30 and September 30, 2001 and (c) the Company’s definitive Proxy Statement for its 2001 Annual Meeting of Stockholders, each in the form (including exhibits, annexes and any amendments thereto) filed or furnished, as applicable, on a timely basis, all forms, statements, certifications, reports and documents required to be filed or furnished by it with or to the SEC pursuant to the Exchange Act or the Securities Act since June 30, 2014 and Exchange Commission (the “Applicable DateSEC”) (the forms, statements, reports and documents filed with on or furnished to the SEC since the Applicable Date and those filed with or furnished to the SEC subsequent prior to the date of this Agreement, in each case as amendedhereof (collectively, the “Company Reports”). Each As of their respective dates the Company Reports complied, and any Company reports, registration statements, proxy or information statements filed with the SEC subsequent to the date hereof (the “ Subsequent Company Reports”) will comply, at the time of its filing or being furnished complied or, if not yet filed or furnished, will comply as to form in all material respects with the applicable requirements of the Securities Act or the Exchange Act, the Exchange Act as applicable, and the Xxxxxxxx-Xxxxx Act of 2002 (the “Xxxxxxxx-Xxxxx Act”), and any rules and regulations promulgated thereunder applicable to of the Company ReportsSEC. As of their respective dates (or, if amended prior to the date of this Agreement, as of the date of such amendment)dates, the Company Reports did not, and any Subsequent Company Reports filed with or furnished to the SEC subsequent to the date of this Agreement will not, contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements made therein, in the light of the circumstances in under which they were made, not misleading.
(b) The Company is in compliance in all material respects with the applicable listing and corporate governance rules and regulations of Nasdaq.
(c) The Company maintains disclosure controls and procedures required by Rule 13a-15 or 15d-15 under the Exchange Act. Such disclosure controls and procedures are designed to ensure that information required to be disclosed by the Company in its filings with the SEC under the Exchange Act is recorded and reported on a timely basis to the individuals responsible for the preparation of the Company’s filings with the SEC under the Exchange Act. The Company maintains internal control over financial reporting (as defined in Rule 13a-15 or 15d-15, as applicable, under the Exchange Act). Such internal control over financial reporting is designed to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with GAAP. The Company has disclosed, based on the most recent evaluation of its Chief Executive Officer and its Chief Financial Officer prior to the date of this Agreement, to the Company’s auditors and the audit committee of the Company’s Board of Directors (x) any significant deficiencies and material weaknesses in the design or operation of its internal controls over financial reporting that are reasonably likely to adversely affect the Company’s ability to record, process, summarize and report financial information and (y) any fraud, whether or not material, that involves management or other employees who have a significant role in the Company’s internal control over financial reporting. The Company has made available prior to the date of this Agreement to Parent (I) either materials relating to or a summary of any disclosure of matters described in clauses (x) or (y) in the preceding sentence made by management of the Company to its auditors and audit committee on or after the Applicable Date and prior to the date of this Agreement and (II) any material communication on or after the Applicable Date and prior to the date of this Agreement made by management of the Company or its auditors to the audit committee as required by the listing standards of Nasdaq, the audit committee’s charter or professional standards of the Public Company Accounting Oversight Board. Since the Applicable Date and prior to the date of this Agreement, no complaints from any source regarding a material violation of accounting procedures, internal accounting controls or auditing matters or compliance with Law, including from Company Employees regarding questionable accounting, auditing or legal compliance matters have, to the Knowledge of the Company, been received by the Company.
(d) Each of the consolidated balance sheets included in or incorporated by reference into the Company Reports and Subsequent Company Reports (including the related notes and schedules) fairly presents orpresents, in the case of Company Reports filed after the date of this Agreement, or will fairly present, in each case, in all material respects, the consolidated financial position of the Company and its Subsidiaries, Subsidiaries as of the its date of such balance sheet, and each of the consolidated statements of operations, cash flows income and of changes in stockholders’ equity (deficit) financial position included in or incorporated by reference into the Company Reports and Subsequent Company Reports (including any related notes and schedules) fairly presents, or, in the case of Company Reports filed after the date of this Agreement, or will fairly present, in each case, in all material respects, the consolidated results of operations, retained earnings (loss) and changes in financial position, as the case may be, of the Company and its Subsidiaries for the periods set forth therein (subject, in the case of unaudited statements, to notes and normal year-end audit adjustments that are not or will not be material in amount or effectadjustments), in each case in accordance with GAAP generally accepted accounting principles (“GAAP”) consistently applied during the periods involved, except as may be noted therein or in the notes theretotherein.
(e) Neither the Company nor any of its Subsidiaries has incurred any Indebtedness, or issued or sold any debt securities or rights to acquire any debt security of the Company or any of its Subsidiaries, the terms of which, or the terms of any instrument under which such Indebtedness, debt securities or rights were issued, requires the public listing of such Indebtedness, debt securities or rights or the maintenance by the Company or any of its Subsidiaries of registration under the Exchange Act.
Appears in 1 contract
Samples: Merger Agreement (Oni Systems Corp)
Company Reports; Financial Statements. (ai) The Company has filed or furnished, as applicable, on a timely basis, basis all forms, statements, certifications, reports and documents required to be filed or furnished by it with or to the SEC pursuant to under the Exchange Act or the Securities Act of 1933 (as amended, the “Securities Act”) since June 30December 31, 2014 2004 (the “Applicable Date”) (the forms, statements, reports and documents filed with or furnished to the SEC since the Applicable Date and those filed with or furnished to the SEC subsequent to the date of this Agreementhereof and prior to the Purchase Date, in each case as amendedincluding any amendments thereto, the “Company Reports”). Each of the Company Reports, at the time of its filing or being furnished furnished, complied or, if not yet filed or furnished, will comply in all material respects with the applicable requirements of the Securities Act, the Exchange Act and the Xxxxxxxx-Xxxxx Act of 2002 (the “Xxxxxxxx-Xxxxx Act”), and any rules and regulations promulgated thereunder applicable to the Company Reports. As of their respective dates (or, if amended or superceded prior to the date of this Agreementhereof, as of the date of such amendmentamendment or subsequently filed Company Report), the Company Reports did not, and any Company Reports filed with or furnished to the SEC subsequent to the date hereof but prior to the Purchase Date will not as of this Agreement will notthe date such Company Reports were filed or furnished, contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements made therein, in light of the circumstances in which they were made, not misleading.
(bii) The Company is in compliance in all material respects with the applicable listing and corporate governance rules and regulations of NasdaqNasdaq and the Xxxxxxxx-Xxxxx Act.
(ciii) The Company maintains disclosure controls and procedures required by Rule 13a-15 or 15d-15 under the Exchange Act. Such disclosure controls and procedures are designed to ensure that information required to be has disclosed by the Company in its filings with the SEC under the Exchange Act is recorded and reported on a timely basis to the individuals responsible for the preparation of the Company’s filings with the SEC under the Exchange Act. The Company maintains internal control over financial reporting (as defined in Rule 13a-15 or 15d-15, as applicable, under the Exchange Act). Such internal control over financial reporting is designed to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with GAAP. The Company has disclosed, based on the most recent evaluation of its Chief Executive Officer and its Chief Financial Officer prior to the date of this Agreement, to the Company’s auditors and the audit committee of the Company’s Board board of Directors directors, (xA) any significant deficiencies and material weaknesses in the design or operation of its internal controls control over financial reporting that are reasonably likely to materially adversely affect the Company’s ability to record, process, summarize and report financial information and (yB) any fraud, whether or not material, that involves management or other employees who have a significant role in the Company’s internal control over financial reporting. The Company has made available prior to the date of this Agreement to Parent (I) either materials relating to or a summary of any disclosure of matters described in clauses (x) or (y) in the preceding sentence made by management of the Company to its auditors and audit committee on or after the Applicable Date and prior to the date of this Agreement and (II) any material communication on or after the Applicable Date and prior to the date of this Agreement made by management of the Company or its auditors to the audit committee as required by the listing standards of Nasdaq, the audit committee’s charter or professional standards of the Public Company Accounting Oversight Board. Since the Applicable Date and prior to the date of this Agreement, no complaints from any source regarding a material violation of accounting procedures, internal accounting controls or auditing matters or compliance with Law, including from Company Employees regarding questionable accounting, auditing or legal compliance matters have, to the Knowledge of the Company, been received by the Company.
(div) Each of the consolidated balance sheets included in or incorporated by reference into the Company Reports (including the related notes and schedules) fairly presents presents, or, in the case of Company Reports filed after the date of this Agreementhereof but prior to the Purchase Date, will fairly present, in each case, present in all material respects, respects the consolidated financial position of the Company and its Subsidiaries, consolidated Subsidiaries as of the its date of such balance sheet, and each of the consolidated statements of operationsincome, cash flows and changes in stockholders’ equity (deficit) and cash flows included in or incorporated by reference into the Company Reports (including any related notes and schedules) fairly presents, or, or in the case of Company Reports filed after the date of this Agreementhereof but prior to the Purchase Date, will fairly present, in each case, present in all material respects, respects the results of operations, retained earnings (loss) and changes in financial position, as the case may be, of the Company and its Subsidiaries such companies for the periods set forth therein (subject, in the case of unaudited statements, to notes the absence of footnotes and to normal year-end audit adjustments that are not or will not be material in amount or effectadjustments), in each case in accordance with GAAP consistently applied during the periods involved, except as may be noted therein or in the notes theretotherein.
(e) Neither the Company nor any of its Subsidiaries has incurred any Indebtedness, or issued or sold any debt securities or rights to acquire any debt security of the Company or any of its Subsidiaries, the terms of which, or the terms of any instrument under which such Indebtedness, debt securities or rights were issued, requires the public listing of such Indebtedness, debt securities or rights or the maintenance by the Company or any of its Subsidiaries of registration under the Exchange Act.
Appears in 1 contract
Samples: Merger Agreement (Genlyte Group Inc)
Company Reports; Financial Statements. (ai) The Company has filed or furnished, as applicable, on a timely basis, basis all forms, statements, certifications, reports and documents required to be filed or furnished by it with or to the SEC pursuant to Securities Exchange Commission (the “SEC”) under the Exchange Act or the Securities Act of 1933, as amended (the “Securities Act”) since June 30May 31, 2014 2004 (the “Applicable Date”) (the forms, statements, certifications, reports and documents filed with or furnished to the SEC since the Applicable Date and those filed with or furnished to the SEC subsequent to the date of this Agreementhereof, in each case as amendedincluding any amendments thereto, the “Company Reports”). Each of the Company Reports, at the time of its filing or being furnished complied or, if not yet filed or furnished, will comply in all material respects with the applicable requirements of the Securities Act, the Exchange Act and the Xxxxxxxx-Xxxxx Act of 2002 (the “Xxxxxxxx-Xxxxx Act”)2002, and any rules and regulations promulgated thereunder applicable to the Company Reports. As of their respective dates (or, if amended prior to the date of this Agreementhereof, as of the date of such amendment), the Company Reports did not, and any Company Reports filed with or furnished to with the SEC subsequent to the date of this Agreement hereof will not, contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements made therein, in light of the circumstances in which they were made, not misleading.
(bii) The Company is in compliance in all material respects with the applicable listing and corporate governance rules and regulations of Nasdaqthe NASDAQ.
(c) The Company maintains disclosure controls and procedures required by Rule 13a-15 or 15d-15 under the Exchange Act. Such disclosure controls and procedures are designed to ensure that information required to be disclosed by the Company in its filings with the SEC under the Exchange Act is recorded and reported on a timely basis to the individuals responsible for the preparation of the Company’s filings with the SEC under the Exchange Act. The Company maintains internal control over financial reporting (as defined in Rule 13a-15 or 15d-15, as applicable, under the Exchange Act). Such internal control over financial reporting is designed to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with GAAP. The Company has disclosed, based on the most recent evaluation of its Chief Executive Officer and its Chief Financial Officer prior to the date of this Agreement, to the Company’s auditors and the audit committee of the Company’s Board of Directors (x) any significant deficiencies and material weaknesses in the design or operation of its internal controls over financial reporting that are reasonably likely to adversely affect the Company’s ability to record, process, summarize and report financial information and (y) any fraud, whether or not material, that involves management or other employees who have a significant role in the Company’s internal control over financial reporting. The Company has made available prior to the date of this Agreement to Parent (I) either materials relating to or a summary of any disclosure of matters described in clauses (x) or (y) in the preceding sentence made by management of the Company to its auditors and audit committee on or after the Applicable Date and prior to the date of this Agreement and (II) any material communication on or after the Applicable Date and prior to the date of this Agreement made by management of the Company or its auditors to the audit committee as required by the listing standards of Nasdaq, the audit committee’s charter or professional standards of the Public Company Accounting Oversight Board. Since the Applicable Date and prior to the date of this Agreement, no complaints from any source regarding a material violation of accounting procedures, internal accounting controls or auditing matters or compliance with Law, including from Company Employees regarding questionable accounting, auditing or legal compliance matters have, to the Knowledge of the Company, been received by the Company.
(diii) Each of the consolidated balance sheets included in or incorporated by reference into the Company Reports (including the related notes and schedules) fairly presents in all material respects, or, in the case of Company Reports filed after the date of this Agreementhereof, will fairly present, in each case, present in all material respects, respects the consolidated financial position of the Company and its Subsidiaries, consolidated Subsidiaries as of the its date of such balance sheet, and each of the consolidated statements of operations, shareholders’ equity and cash flows and changes in stockholders’ equity (deficit) included in or incorporated by reference into the Company Reports (including any related notes and schedules) fairly presentspresents in all material respects, or, or in the case of Company Reports filed after the date of this Agreementhereof, will fairly present, in each case, present in all material respects, respects the consolidated results of operations, retained earnings (loss) and changes in financial position, as the case may be, of the Company and its consolidated Subsidiaries for the periods set forth therein (subject, in the case of unaudited statements, to the absence of information or notes not required by GAAP to be included in interim financial statements and to normal year-end audit adjustments that are not or will not be material in amount or effectadjustments), and in each case have been prepared in accordance with GAAP consistently U.S. generally accepted accounting principles (“GAAP”) applied during the periods involvedon a consistent basis, except as may be noted therein or in the notes theretotherein.
(eiv) Neither the The Company nor any of and its Subsidiaries has incurred any Indebtedness, or issued or sold any debt securities or rights to acquire any debt security have implemented and maintain a system of the Company or any of its Subsidiaries, the terms of which, or the terms of any instrument under which such Indebtedness, debt securities or rights were issued, requires the public listing of such Indebtedness, debt securities or rights or the maintenance internal accounting controls and financial reporting (as required by the Company or any of its Subsidiaries of registration Rule 13a-15(a) under the Exchange Act.) that are sufficient to provide reasonable assurances regarding the reliability of financial reporting and the preparation of financial statements in accordance with GAAP. The Company maintains disclosure controls and procedures required by Rule 13a-15 or 15d-15 under the Exchange Act. Such disclosure controls and procedures are effective to ensure that information required to be disclosed by the Company is recorded and reported on a timely basis to the individuals responsible for the preparation of the Company’s filings with the SEC and other public disclosure documents. The Company has disclosed, based on its most recent evaluation prior to the date of this Agreement, to the Company’s outside auditors and the audit committee of the board of directors of the Company (A) any significant deficiencies and material weaknesses in the design or operation of its internal controls over financial reporting (as defined in Rule 13a-15(f) of the Exchange Act) that would be reasonably likely to materially and adversely affect the Company’s ability to record, process, summarize and report financial information and (B) any fraud, whether or not material, that involves management or other employees who have a significant role in the Company’s internal controls over financial reporting
Appears in 1 contract
Samples: Merger Agreement (Biomet Inc)
Company Reports; Financial Statements. (ai) The Except as disclosed on Section 5.1(e)(i) of the Company Disclosure Letter, the Company has filed or furnished, as applicable, on a timely basis, all forms, statements, certifications, reports and documents required to be filed or furnished by it with or to the SEC pursuant to the Exchange Act or the Securities Act Laws since June 30December 31, 2014 (the “Applicable Date”) 2009 (the forms, statements, reports and documents filed with or furnished to the SEC since the Applicable Date such date and those filed with or furnished to the SEC subsequent to the date of this Agreementhereof, in each case as amendedincluding any amendments thereto, the “Company Reports”). Each of the Company Reports, at the time of its filing or being furnished complied or, if not yet filed or furnished, will comply in all material respects with the applicable requirements of the Securities Act of 1933 (the “Securities Act”), the Exchange Act and the XxxxxxxxSxxxxxxx-Xxxxx Act of 2002 (the “XxxxxxxxSxxxxxxx-Xxxxx Act”), and any rules and regulations promulgated thereunder applicable to the Company Reports. As of their respective dates (or, if amended prior to the date of this Agreementhereof, as of the date of such amendment), the Company Reports did not, and any Company Reports filed with or furnished to the SEC subsequent to the date of this Agreement hereof will not, contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements made therein, in light of the circumstances in which they were made, not misleading.
(bii) The Except as permitted by the Exchange Act, including Sections 13(k)(2) and (3) or rules of the SEC, since the enactment of the Sxxxxxxx-Xxxxx Act, neither the Company is nor any of its affiliates has made, arranged or modified (in compliance any material way) any extensions of credit in all material respects with the applicable listing and corporate governance rules and regulations form of Nasdaqa personal loan to any executive officer or director of the Company.
(ciii) The Company maintains disclosure controls and procedures required by Rule 13a-15 or 15d-15 under the Exchange Act. Such disclosure controls and procedures are designed effective to ensure that information required to be disclosed by the Company in its filings with the SEC under the Exchange Act is recorded and reported on a timely basis to the individuals responsible for the preparation of the Company’s filings with the SEC under the Exchange Actand other public disclosure documents. The Company maintains internal control over financial reporting (as defined in Rule 13a-15 or 15d-15, as applicable, under the Exchange Act). Such internal control over financial reporting is are designed and intended to provide be effective in providing reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with GAAPgenerally accepted accounting principles and includes policies and procedures that (A) pertain to the maintenance of records that in reasonable detail accurately and fairly reflect the transactions and dispositions of the asset of the Company, (B) provide reasonable assurance that transactions are recorded as necessary to permit preparation of financial statements in accordance with generally accepted accounting principles, and that receipts and expenditures of the Company are being made only in accordance with authorizations of management and directors of the Company, and (C) provide reasonable assurance regarding prevention or timely detection of unauthorized acquisition, use or disposition of the Company’s assets that could have a material effect on its financial statements. The Company has disclosed, based on the most recent evaluation of its Chief Executive Officer chief executive officer and its Chief Financial Officer chief financial officer prior to the date of this Agreementhereof, to the Company’s auditors and the audit committee of the Company’s Board board of Directors directors (x) any significant deficiencies and material weaknesses in the design or operation of its internal controls over financial reporting that are would reasonably likely be expected to adversely affect the Company’s ability to record, process, summarize and report financial information and has identified for the Company’s auditors and audit committee of the Company’s board of directors any material weaknesses in internal control over financial reporting and (y) any fraud, whether or not material, that involves management or other employees who have a significant role in the Company’s internal control over financial reporting. The Company has made available prior to the date of this Agreement to Parent (I1) either materials relating to or a summary of any such disclosure of matters described in clauses (x) or (y) in the preceding sentence made by management of to the Company to its Company’s auditors and audit committee on or after the Applicable Date and prior to the date of this Agreement and (II2) any material communication on or after the Applicable Date and prior to the date of this Agreement made by management of or the Company or its Company’s auditors to the audit committee as required or contemplated by the listing standards of Nasdaq, the audit committee’s charter or professional standards of the Public Company Accounting Oversight Board. Since the Applicable Date and prior to the date of this Agreement, no No material complaints from any source regarding a material violation of accounting proceduresaccounting, internal accounting controls or auditing matters or compliance with Lawmatters, including and no concerns from Company Employees employees regarding questionable accountingaccounting or auditing matters, auditing or legal compliance matters have, to the Knowledge of the Company, have been received by the Company. The Company has made available to Parent a summary of all material complaints or concerns relating to other matters made through the Company’s whistleblower hot-line or equivalent system for receipt of employee concerns regarding possible violations of Law. No attorney representing the Company or any of its Subsidiaries, whether or not employed by the Company or any of its Subsidiaries, has reported evidence of a violation of securities Laws, breach of fiduciary duty or similar violation by the Company or any of its officers, directors, employees or agents to the Company’s chief legal officer, audit committee (or other committee designated for the purpose) of the board of directors or the board of directors pursuant to the rules adopted pursuant to Section 307 of the Sxxxxxxx-Xxxxx Act or any Company policy contemplating such reporting, including in instances not required by those rules.
(div) Neither the Company nor any of its Subsidiaries is a party to, nor has any commitment to become a party to, any joint venture, off-balance sheet partnership or any similar Contract (including any Contract or arrangement relating to any transaction or relationship between or among the Company, on the one hand, and any unconsolidated affiliate, including any structured finance, special purpose or limited purpose entity or Person, on the other hand), or any “off-balance sheet arrangements” (as defined in Item 303(a) of Regulation S-K promulgated by the SEC), where the result, purpose or intended effect of such Contract is to avoid disclosure of any material transaction involving, or material liabilities of, the Company in its published financial statements or other Company Reports.
(v) Each of the consolidated balance sheets included in or incorporated by reference into the Company Reports (including the related notes and schedules) fairly presents presents, or, in the case of Company Reports filed after the date of this Agreementhereof, will fairly present, in each case, in all material respects, present the consolidated financial position of the Company and its Subsidiaries, consolidated Subsidiaries as of the its date of such balance sheet, and each of the consolidated statements of operationsincome, cash flows and changes in stockholdersshareholders’ equity (deficit) and cash flows included in or incorporated by reference into the Company Reports (including any related notes and schedules) fairly presents, or, or in the case of Company Reports filed after the date of this Agreementhereof, will fairly present, in each case, in all material respects, present the results of operations, retained earnings (loss) and changes in financial position, as the case may be, of the Company and its Subsidiaries such companies for the periods set forth therein (subject, in the case of unaudited statements, to notes and normal year-end audit adjustments that are not or will not be material in amount or effect), in each case in accordance with GAAP U.S. generally accepted accounting principles (“GAAP”) consistently applied during the periods involved, except as may be noted therein or in the notes theretotherein.
(evi) Neither Except for (A) those liabilities that are reflected or reserved against on the unaudited interim consolidated balance sheet of the Company and its Subsidiaries as of March 31, 2012 (the “Most Recent Balance Sheet”), (B) liabilities incurred in the ordinary course of business consistent with past practice since the date of the Most Recent Balance Sheet, and (C) obligations incurred pursuant to this Agreement, neither the Company nor any of its Subsidiaries Subsidiary has incurred any Indebtednessliability of the type required to be set forth on a balance sheet prepared in accordance with GAAP that, individually or in the aggregate with other such liabilities, has had, or issued or sold any debt securities or rights would reasonably be expected to acquire any debt security of the Company or any of its Subsidiaries, the terms of which, or the terms of any instrument under which such Indebtedness, debt securities or rights were issued, requires the public listing of such Indebtedness, debt securities or rights or the maintenance by the Company or any of its Subsidiaries of registration under the Exchange Acthave a Material Adverse Effect.
Appears in 1 contract
Company Reports; Financial Statements. (ai) The Company has filed or furnished, as applicable, on a timely basis, all forms, statements, certifications, reports and documents required to be filed or furnished by it with or to the SEC pursuant to the Exchange Act or the Securities Act of 1933, as amended (the “Securities Act”), since June 30December 31, 2014 2010 (the “Applicable Date”) (the forms, statements, certifications, reports and documents filed with or furnished to the SEC since the Applicable Date and those filed with or furnished to the SEC subsequent to the date of this Agreementhereof, in each case as amendedincluding any amendments thereto, the “Company Reports”). Each of the Company Reports, at the time of its filing or being furnished complied or, if not yet filed or furnished, will comply in all material respects with the applicable requirements of the Securities Act, Act and the Exchange Act and the Xxxxxxxx-Xxxxx Act of 2002 (the “Xxxxxxxx-Xxxxx Act”), and any rules and regulations promulgated thereunder applicable to the Company Reports. As of their respective dates (or, if amended prior to the date of this Agreementhereof, as of the date of such amendment), the Company Reports did not, and any Company Reports filed with or furnished to the SEC subsequent to the date of this Agreement hereof will not, contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements made therein, in light of the circumstances in which they were made, not misleading.
(bii) The Company is in compliance in all material respects with the applicable listing and corporate governance rules and regulations of Nasdaqthe NASDAQ.
(c) The Company maintains disclosure controls and procedures required by Rule 13a-15 or 15d-15 under the Exchange Act. Such disclosure controls and procedures are designed to ensure that information required to be disclosed by the Company in its filings with the SEC under the Exchange Act is recorded and reported on a timely basis to the individuals responsible for the preparation of the Company’s filings with the SEC under the Exchange Act. The Company maintains internal control over financial reporting (as defined in Rule 13a-15 or 15d-15, as applicable, under the Exchange Act). Such internal control over financial reporting is designed to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with GAAP. The Company has disclosed, based on the most recent evaluation of its Chief Executive Officer and its Chief Financial Officer prior to the date of this Agreement, to the Company’s auditors and the audit committee of the Company’s Board of Directors (x) any significant deficiencies and material weaknesses in the design or operation of its internal controls over financial reporting that are reasonably likely to adversely affect the Company’s ability to record, process, summarize and report financial information and (y) any fraud, whether or not material, that involves management or other employees who have a significant role in the Company’s internal control over financial reporting. The Company has made available prior to the date of this Agreement to Parent (I) either materials relating to or a summary of any disclosure of matters described in clauses (x) or (y) in the preceding sentence made by management of the Company to its auditors and audit committee on or after the Applicable Date and prior to the date of this Agreement and (II) any material communication on or after the Applicable Date and prior to the date of this Agreement made by management of the Company or its auditors to the audit committee as required by the listing standards of Nasdaq, the audit committee’s charter or professional standards of the Public Company Accounting Oversight Board. Since the Applicable Date and prior to the date of this Agreement, no complaints from any source regarding a material violation of accounting procedures, internal accounting controls or auditing matters or compliance with Law, including from Company Employees regarding questionable accounting, auditing or legal compliance matters have, to the Knowledge of the Company, been received by the Company.
(diii) Each of the consolidated balance sheets included in or incorporated by reference into the Company Reports (including the related notes and schedules) fairly presents in all material respects, or, in the case of Company Reports filed after the date of this Agreementhereof, will fairly present, in each case, present in all material respects, respects the consolidated financial position of the Company and its Subsidiaries, consolidated Subsidiaries as of the its date of such balance sheet, and each of the consolidated statements of operationsoperations and comprehensive loss, cash flows and changes in of stockholders’ equity (deficit) and of cash flows included in or incorporated by reference into the Company Reports (including any related notes and schedules) fairly presentspresents in all material respects, or, in the case of Company Reports filed after the date of this Agreementhereof, will fairly present, in each case, present in all material respects, the financial position, results of operations, retained earnings (loss) operations and changes in financial positioncash flows, as the case may be, of the Company and its consolidated Subsidiaries for the periods set forth therein (subject, in the case of unaudited statements, to notes and normal year-end audit adjustments that are not or will not be material in amount or effectadjustments), in each case in accordance with GAAP consistently applied during the periods involvedU.S. generally accepted accounting principles (“GAAP”), except as may be noted therein therein.
(A) The Company’s system of internal control over financial reporting (as defined in Rules 13a-15(f) and 15d-15(f) of the Exchange Act) is effective in providing reasonable assurance (I) that the Company maintains records that in reasonable detail accurately and fairly reflect its transactions and dispositions of assets, (II) that transactions are recorded as necessary to permit preparation of financial statements in conformity with GAAP, (III) that transactions are executed only in accordance with authorizations of management and the board of directors of the Company and (IV) regarding prevention or timely detection of the unauthorized acquisition, use or disposition of the Company’s assets.
(B) Except as would not be reasonably expected to have, individually or in the notes thereto.
(e) Neither aggregate, a Company Material Adverse Effect, the Company nor any maintains disclosure controls and procedures required by Rule 13a-15 or 15d-15 under the Exchange Act that are effective to ensure that information required to be disclosed by the Company is recorded and reported on a timely basis to the individuals responsible for the preparation of the Company’s filings with the SEC and other public disclosure documents. The Company has disclosed, based on its Subsidiaries has incurred any Indebtednessmost recent evaluation prior to the date of this Agreement, or issued or sold any debt securities or rights to acquire any debt security the Company’s outside auditors and the audit committee of the board of directors of the Company (1) any significant deficiencies and material weaknesses in the design or any operation of its Subsidiaries, the terms of which, or the terms of any instrument under which such Indebtedness, debt securities or rights were issued, requires the public listing of such Indebtedness, debt securities or rights or the maintenance by the Company or any of its Subsidiaries of registration internal controls over financial reporting (as defined in Rule 13a-15(f) under the Exchange Act) that are reasonably likely to adversely affect the Company’s ability to record, process, summarize and report financial information and (2) any fraud, known to the Company, whether or not material, that involves management or other employees who have a significant role in the Company’s internal controls over financial reporting.
Appears in 1 contract
Company Reports; Financial Statements. (a) The Company has filed or furnished, as applicable, on a timely basis, basis (taking into account all applicable grace periods) all forms, statements, certifications, reports reports, statements and documents required to be filed or furnished by it with or to the SEC pursuant to the Securities Act and the Exchange Act or the Securities Act since June 30December 31, 2014 2021 (the “Applicable Date”) (the all such forms, statementscertificates, reports reports, statements and documents filed with or furnished to the SEC since after the Applicable Date Date, including all exhibits and those filed with or furnished to the SEC subsequent to the date of this Agreementother information incorporated therein, in each case as amendedamendments and supplements thereto, collectively, the “Company SEC Reports”). Each of the Company SEC Reports, at the time of its filing or being furnished complied (or, if not yet filed or furnishedamended, will comply as of the time of such amendment or, if superseded by a filing, as of the date of such filing), complied in all material respects with the applicable requirements of the Securities Act, the Exchange Act and the Xxxxxxxx-Xxxxx Act of 2002 (the “Xxxxxxxx-Xxxxx Act”), and any rules and regulations promulgated thereunder applicable to the Company Reports. As of their respective dates (or, if amended prior to the date of this Agreementamended, as of the date of such amendmentamendment or, if superseded by a filing, as of the date of such filing), the Company SEC Reports did not, and any Company Reports filed with or furnished to the SEC subsequent to the date of this Agreement will not, not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements made therein, in light of the circumstances in which they were made, not misleading; provided, however, that no representation is made as to the accuracy of any financial projections or forward-looking statements or the completeness of any information furnished by the Company to the SEC solely for the purposes of complying with Regulation FD promulgated under the Exchange Act. As of the date hereof, there are no outstanding or unresolved written comments from the SEC staff with respect to any of the Company SEC Reports, and, to the Knowledge of the Company, none of the Company SEC Reports is the subject of ongoing SEC review, outstanding SEC comment or outstanding SEC investigation.
(b) The Company is in compliance in all material respects with the applicable listing has established and corporate governance rules and regulations of Nasdaq.
(c) The Company maintains “disclosure controls and procedures procedures” and “internal controls over financial reporting” (as such terms are defined in paragraphs (e) and (f), respectively, of Rule 13a-15 under the Exchange Act) as required by Rule Rules 13a-15 or and 15d-15 under the Exchange Act. Such disclosure controls and procedures are designed and maintained to ensure provide reasonable assurance (i) that material information required to be disclosed by the Company in its filings with the SEC under reports and other documents that it files or furnishes pursuant to the Exchange Act is recorded and reported on a timely basis to the individuals responsible for the preparation of the Company’s filings with the SEC under the Exchange Act. The Company maintains internal control over financial reporting and other public disclosure documents, and (as defined in Rule 13a-15 or 15d-15, as applicable, under the Exchange Act). Such internal control over financial reporting is designed to provide reasonable assurance ii) regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with GAAP. The Since December 31, 2022, neither the Company has disclosed, based on the most recent evaluation of its Chief Executive Officer and its Chief Financial Officer prior to the date of this Agreementnor, to the Company’s auditors and the audit committee Knowledge of the Company’s Board , its independent registered public accounting firm has identified, been made aware of Directors or received any written notification of any (xA) any “significant deficiencies and deficiency,” (B) “material weaknesses weakness” (as defined in Rule 13a-15 or 15d-15, as applicable, under the Exchange Act) or (C) fraud in the design or operation of its the Company’s internal controls over financial reporting that are reasonably likely to adversely affect the Company’s ability to record, process, summarize and report financial information and (y) any fraud, whether or not material, that involves management or other employees who have a significant role in the Company’s preparation of financial statements or the internal control over financial reporting. The Company has made available prior to the date of this Agreement to Parent (I) either materials relating to or a summary of any disclosure of matters described in clauses (x) or (y) in the preceding sentence made reporting utilized by management of the Company to and its auditors and audit committee on or after the Applicable Date and prior to the date of this Agreement and Subsidiaries.
(IIc) any material communication on or after the Applicable Date and prior to the date of this Agreement made by management of the Company or its auditors to the audit committee as required by the listing standards of Nasdaq, the audit committee’s charter or professional standards of the Public Company Accounting Oversight Board. Since the Applicable Date and prior to Date, the date of this Agreement, no complaints from any source regarding a Company has been in compliance in all material violation of accounting procedures, internal accounting controls or auditing matters or compliance respects with Law, including from Company Employees regarding questionable accounting, auditing or legal compliance matters have, to the Knowledge applicable provisions of the Company, been received Xxxxxxxx-Xxxxx Act and the listing and corporate governance rules and regulations of the NYSE applicable to a “controlled company” as defined by Rule 303A of the CompanyNYSE Listed Company Manual.
(d) Each of the audited annual consolidated balance sheets financial statements and the unaudited quarterly consolidated financial statements of the Company and its Subsidiaries included in or incorporated by reference into the Company SEC Reports (including the related notes and schedulesschedules and the consolidated results of operations and cash flows for the periods set forth therein) (collectively, the “Company Financial Statements”) fairly presents or, in the case of Company Reports filed after the date of this Agreement, will fairly present, in each case, present in all material respects, the consolidated or combined financial position of the Company and its Subsidiaries, Subsidiaries as of the date of such balance sheet, their dates and each of the consolidated statements results of operations, operations and cash flows and changes in stockholders’ equity (deficit) included in or incorporated by reference into the Company Reports (including any related notes and schedules) fairly presents, or, in the case of Company Reports filed after the date of this Agreement, will fairly present, in each case, in all material respects, the results of operations, retained earnings (loss) and changes in financial position, as the case may be, of the Company and its Subsidiaries for the periods set forth therein (subject, in the case of unaudited statements, to the absence of notes and to normal year-end audit adjustments that are not or will not be material in amount or effectadjustments), in each case in accordance with GAAP consistently applied during the periods involved, except as may be noted therein or in the notes thereto.
(e) No Subsidiary of the Company is subject to the periodic reporting requirements of the Exchange Act or is otherwise required to file any periodic forms, reports, schedules, statements or other documents with the SEC.
(f) Neither the Company nor any of its Subsidiaries has incurred any Indebtednessis, or issued has any commitment to become, a party to any joint venture, off-balance sheet partnership or sold any debt securities similar Contract, including any structured finance, special purpose or rights limited purpose entity or Person, or any “off-balance sheet arrangements” (as defined in Item 303(a) of Regulation S-K under the Securities Act), in each case, where the result, purpose or intended effect of such Contract is to acquire avoid disclosure of any debt security of material transaction involving, or material liabilities of, the Company or any of its Subsidiaries, the terms of which, or the terms of any instrument under which such Indebtedness, debt securities or rights were issued, requires the public listing of such Indebtedness, debt securities or rights or the maintenance by Subsidiaries in the Company or any of its Subsidiaries of registration under the Exchange ActSEC Reports.
Appears in 1 contract
Samples: Merger Agreement (Avangrid, Inc.)
Company Reports; Financial Statements. (ai) The Company has filed or furnished, as applicable, on a timely basis, basis all forms, statements, certifications, reports and documents required to be filed or furnished by it with or to the SEC Securities and Exchange Commission (“SEC”) pursuant to the Exchange Act or the Securities Act since June 30on or after January 1, 2014 (the “Applicable Date”) (the forms, statements, certifications, reports and documents filed with or furnished to the SEC since the Applicable Date and those filed with or furnished to the SEC subsequent to the date of this Agreementhereof, in each case as amendedincluding any amendments thereto, and including all exhibits and schedules thereto and documents incorporated by reference therein, the “Company Reports”). Each As of their respective effective dates or filing or furnishing dates or amendment dates, as applicable, each of the Company Reports, at the time of its filing or being furnished Reports complied or, if not yet filed or furnished, will comply in all material respects with the applicable requirements of the Securities Act, the Exchange Act and the Xxxxxxxx-Xxxxx Sarbanes–Oxley Act of 2002 (the “Xxxxxxxx-Xxxxx Act”)2002, and any rules and regulations promulgated thereunder applicable to the Company Reports. As of their respective effective dates, filing or furnishing dates (or, if amended prior to the date of this Agreementor amendment dates, as of the date of such amendment)applicable, the Company Reports did not, and any Company Reports filed with or furnished to the SEC subsequent to the date of this Agreement will not, not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements made therein, in light of the circumstances in which they were made, not misleading.
(b) . The Company has made available to Parent all material written correspondence between the SEC, on the one hand, and the Company and any of its Subsidiaries, on the other hand, since the Applicable Date. As of the date hereof, there are no material outstanding or unresolved written comments received from the SEC with respect to any of the Company Reports. The Company is in compliance in all material respects with the applicable listing and corporate governance rules and regulations of NasdaqNASDAQ.
(cii) Each of the consolidated balance sheets and consolidated statements of operations, shareholders’ equity and comprehensive income and cash flows (including all related notes) included in or incorporated by reference into the Company Reports (the “Company Financial Statements”) (A) fairly presents in all material respects the consolidated results of statements of operations, changes in liabilities subordinated to claims of general creditors, changes in members’ equity and the consolidated financial condition of the Company and its Subsidiaries for the respective fiscal periods or as of the respective dates therein set forth (subject in the case of unaudited statements to normal year–end audit adjustments) and (B) has been prepared in conformity with GAAP consistently applied during the periods involved (except in the case of unaudited statements for the absence of footnotes and other presentation items), except, in each case, as indicated in such statements or in the notes thereto. The Company maintains disclosure controls and procedures as required by Rule 13a-15 13a–15 or 15d-15 15d–15 under the Exchange Act. Such disclosure controls and procedures are reasonably designed to ensure that material information required to be disclosed by the Company in its filings with the SEC under the Exchange Act Company Reports is recorded and reported on a timely basis to the individuals responsible for the preparation of the Company’s filings with the SEC under the Exchange ActCompany Reports. The Company maintains internal control over financial reporting (as defined in Rule 13a-15 13a–15 or 15d-1515d–15, as applicable, under the Exchange Act). Such internal control over financial reporting is designed sufficient to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with GAAP. The Since the Applicable Date, the Company has disclosed, based on the most recent evaluation of its Chief Executive Officer and its Chief Financial Officer prior to the date of this Agreement, disclosed to the Company’s auditors and the audit committee of the Company’s Company Board of Directors (xA) any significant deficiencies and material weaknesses in the design or operation of its internal controls over financial reporting (as defined in Rule 13a–15(f) of the Exchange Act) that are reasonably likely were Known to adversely affect the Company’s ability to record, process, summarize and report financial information Company and (yB) any fraud, whether fraud or not material, allegation of fraud Known to the Company that involves management or other employees who have a significant role in the Company’s internal control controls over financial reporting. The Company has made available prior .
(iii) Since the Applicable Date, (i) to the date of this Agreement to Parent (I) either materials relating to or a summary of any disclosure of matters described in clauses (x) or (y) in the preceding sentence made by management Knowledge of the Company to its auditors and audit committee on or after the Applicable Date and prior to the date of this Agreement and (II) any material communication on or after the Applicable Date and prior to the date of this Agreement made by management Company, none of the Company or any of its auditors Subsidiaries or any of their directors or officers has received any material complaint, allegation, assertion or claim, whether written or oral, regarding the accounting or auditing practices, procedures, methodologies or methods of the Company or any of its Subsidiaries or their respective internal accounting controls, including any material complaint, allegation, assertion or claim that the Company or any of its Subsidiaries has engaged in questionable accounting or auditing practices, other than billing inquiries or complaints made in the ordinary course of business, and (ii) no attorney representing the Company or any of its Subsidiaries, whether or not employed by the Company or any of its Subsidiaries, has reported to the audit Company Board, any committee as required thereof or to any officer of the Company evidence of a material violation of securities laws, a breach of fiduciary duty or a similar material violation by the listing standards Company or any of Nasdaqits Subsidiaries or any of their officers, the audit committee’s charter directors or professional standards employees.
(iv) None of the Public Company Accounting Oversight Board. Since or any of its Subsidiaries has any liabilities or obligations of any nature (whether accrued, absolute, contingent or otherwise) which would be required to be reflected or reserved against on a consolidated balance sheet of the Applicable Date Company prepared in accordance with GAAP or the notes thereto, other than liabilities and obligations (A) set forth or as reflected or reserved against in the Company’s consolidated balance sheet as of December 31, 2014 included in the Company Reports filed prior to the date of this Agreement, no complaints from any source regarding a material violation of accounting procedures(B) incurred since December 31, internal accounting controls or auditing matters or compliance with Law, including from Company Employees regarding questionable accounting, auditing or legal compliance matters have, to the Knowledge of the Company, been received by the Company.
(d) Each of the consolidated balance sheets included in or incorporated by reference into the Company Reports (including the related notes and schedules) fairly presents or, 2014 in the case ordinary course of business consistent with past practice, (C) incurred in connection with this Agreement and the transactions contemplated by this Agreement or (D) as would not reasonably be expected to have a Company Reports filed after the date of this Agreement, will fairly present, in each case, in all material respects, the consolidated financial position of Material Adverse Effect on the Company and its Subsidiaries, taken as of the date of such balance sheet, and each of the consolidated statements of operations, cash flows and changes in stockholders’ equity (deficit) included in or incorporated by reference into the Company Reports (including any related notes and schedules) fairly presents, or, in the case of Company Reports filed after the date of this Agreement, will fairly present, in each case, in all material respects, the results of operations, retained earnings (loss) and changes in financial position, as the case may be, of the Company and its Subsidiaries for the periods set forth therein (subject, in the case of unaudited statements, to notes and normal year-end audit adjustments that are not or will not be material in amount or effect), in each case in accordance with GAAP consistently applied during the periods involved, except as may be noted therein or in the notes theretoa whole.
(e) Neither the Company nor any of its Subsidiaries has incurred any Indebtedness, or issued or sold any debt securities or rights to acquire any debt security of the Company or any of its Subsidiaries, the terms of which, or the terms of any instrument under which such Indebtedness, debt securities or rights were issued, requires the public listing of such Indebtedness, debt securities or rights or the maintenance by the Company or any of its Subsidiaries of registration under the Exchange Act.
Appears in 1 contract
Company Reports; Financial Statements. (ai) The Company has filed or furnished, as applicable, on a timely basis, all forms, statements, certifications, reports and documents required to be filed or furnished by it with or to the SEC U.S. Securities and Exchange Commission (the “SEC”) pursuant to the Exchange Act or the Securities Act since June 30January 1, 2014 2016 (the “Applicable Date”) (the forms, statements, reports and documents filed with or furnished to the SEC since the Applicable Date and those filed with or furnished to the SEC subsequent to the date of this Agreement, in each case as amended, the “Company Reports”). Each of the Company Reports, at the time of its filing or being furnished complied or, if not yet filed or furnished, will comply in all material respects with the applicable requirements of the Securities Act, the Exchange Act and the Xxxxxxxx-Xxxxx Act of 2002 (the “Xxxxxxxx-Xxxxx Act”), and any rules and regulations promulgated thereunder applicable to the Company Reports. Except as permitted by the Exchange Act, including, without limitation, Sections 13(k)(2) and (3), since the Applicable Date, neither the Company nor any of its Affiliates has made, arranged or modified (in any material way) personal loans to any executive officer or director of the Company. As of their respective dates (or, if amended prior to the date of this Agreement, as of the date of such amendment), the Company Reports did not, and any Company Reports filed with or furnished to the SEC subsequent to the date of this Agreement will not, contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements made therein, in light of the circumstances in which they were made, not misleading.
(bii) The Company is in compliance in all material respects with the applicable listing and corporate governance rules and regulations of Nasdaqthe NASDAQ.
(ciii) The Company maintains disclosure controls and procedures required by Rule 13a-15 or 15d-15 under the Exchange Act. Such disclosure controls and procedures are designed to ensure that information required to be disclosed by the Company in its filings with the SEC under the Exchange Act is recorded and reported on a timely basis to the individuals responsible for the preparation of the Company’s filings with the SEC under the Exchange Act. The Company maintains internal control over financial reporting (as defined in Rule 13a-15 or 15d-15, as applicable, under the Exchange Act). Such internal control over financial reporting is designed to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with GAAP. The Company has disclosed, based on the most recent evaluation of its Chief Executive Officer and its Chief Financial Officer prior to the date of this Agreement, to the Company’s auditors and the audit committee of the Company’s Board board of Directors directors (x) any significant deficiencies and material weaknesses in the design or operation of its internal controls over financial reporting that are reasonably likely to adversely affect the Company’s ability to record, process, summarize and report financial information and (y) any fraud, whether or not material, that involves management or other employees who have a significant role in the Company’s internal control over financial reporting. The Company has made available prior to the date of this Agreement to Parent (I) either materials relating to or a summary of any disclosure of matters described in clauses clause (x) or (y) in the preceding sentence made by management of the Company to its auditors and audit committee on or after the Applicable Date and prior to the date of this Agreement and (II) any material communication on or after the Applicable Date and prior to the date of this Agreement made by management of the Company or its auditors to the audit committee as required by the listing standards of Nasdaqthe NASDAQ, the audit committee’s charter or professional standards of the Public Company Accounting Oversight Board. Since the Applicable Date and prior to the date of this AgreementDate, no complaints from any source regarding a material violation of accounting procedures, internal accounting controls or auditing matters or compliance with Lawmatters, including from Company Employees regarding questionable accounting, auditing or legal compliance matters have, to the Knowledge of the Company, been received by the Company.
(div) Each of the audited and unaudited interim consolidated balance sheets included in or incorporated by reference into the Company Reports (including the related notes and schedules) fairly presents or, in the case of Company Reports filed after the date of this Agreement, will fairly present, in each case, in all material respects, the consolidated financial position of the Company and its Subsidiaries, as of the date of such balance sheet, and each of the audited and unaudited interim consolidated statements of operationsincome, cash flows and changes in stockholdersshareholders’ equity (deficit) included in or incorporated by reference into the Company Reports (including any related notes and schedules) fairly presents, or, in the case of Company Reports filed after the date of this Agreement, will fairly present, in each case, in all material respects, the results of operations, retained earnings (loss) and changes in financial position, as the case may be, of the Company and its Subsidiaries for the periods set forth therein (subject, in the case of unaudited statements, to notes and normal year-end audit adjustments that are not or will not be material in amount or effect), in each case in accordance with GAAP consistently applied during the periods involved, except as may be noted therein or in the notes thereto, and in compliance as to form in all material respects with the published rules and regulations of the SEC with respect thereto.
(ev) Neither the Company nor any of its Subsidiaries has incurred any Indebtedness, or issued or sold any debt securities or rights to acquire any debt security of the Company or any of its Subsidiaries, the terms of which, or the terms of any instrument under which such Indebtedness, debt securities or rights were issued, requires the public listing of such Indebtedness, debt securities or rights or the maintenance by the Company or any of its Subsidiaries of registration under the Exchange Act. As used in this Agreement, the term “Indebtedness” means, with respect to any Person, without duplication, all obligations or undertakings by such Person (A) for borrowed money (including deposits or advances of any kind to such Person); (B) evidenced by bonds, debentures, notes or similar instruments; (C) for capitalized leases or to pay the deferred and unpaid purchase price of property or equipment; (D) pursuant to securitization or factoring programs or arrangements; (E) pursuant to guarantees and arrangements having the economic effect of a guarantee of any Indebtedness of any other Person (other than between or among any of Parent and its wholly owned Subsidiaries or between or among the Company and its wholly owned Subsidiaries); (F) to maintain or cause to be maintained the financing or financial position of others; (G) net cash payment obligations of such Person under swaps, options, derivatives and other hedging Contracts or arrangements that will be payable upon termination thereof (assuming termination on the date of determination); or (H) letters of credit, bank guarantees, and other similar Contracts or arrangements entered into by or on behalf of such Person to the extent they have been drawn upon.
Appears in 1 contract
Samples: Merger Agreement (Univar Inc.)
Company Reports; Financial Statements. (a) The Since December 31, 2014, the Company has filed or furnished, as applicable, on a timely basis, furnished all forms, statements, certifications, reports and documents with the SEC that have been required to be filed or furnished by it with or to the SEC pursuant to the Exchange Act or the Securities Act since June 30, 2014 under applicable Laws (the “Applicable Date”) (the all such forms, statements, reports and documents documents, including exhibits and schedules, filed with or furnished to the SEC since the Applicable Date and those filed December 31, 2014, together with or furnished to the SEC subsequent to the date of this Agreement, in each case as amendedany amendments thereto, the “Company Reports”). Each of the Company Reports, at the time As of its filing or being furnished complied furnishing date (or, if not yet filed amended or furnishedsuperseded by a filing or furnishing prior to the date of this Agreement, will comply on the date of such amended or superseded filing or furnishing), (i) each Company Report complied as to form in all material respects with the applicable requirements of the Securities Act, the Exchange Act and the Xxxxxxxx-Xxxxx Act of 2002 (Act, as the “Xxxxxxxx-Xxxxx Act”)case may be, each as in effect on the date such Company Report was filed or furnished, and any rules and regulations promulgated thereunder applicable to the (ii) each Company Reports. As of their respective dates (or, if amended prior to the date of this Agreement, as of the date of such amendment), the Company Reports Report did not, and any Company Reports filed with or furnished to the SEC subsequent to the date of this Agreement will not, not contain any untrue statement of a material fact or omit to state a any material fact required to be stated therein or necessary in order to make the statements made therein, in the light of the circumstances in under which they were made, not misleading. As of the date hereof, there are no outstanding or unresolved comments received by the Company from the SEC with respect to any of the Company Reports. No executive officer of the Company has failed to make the certifications required of him or her under Section 302 or 906 of the Xxxxxxxx-Xxxxx Act with respect to any Company Report, except as disclosed in certifications filed with the Company Reports. To the Knowledge of the Company, as of the date hereof, no Company Report is the subject of ongoing review, comment or investigation by the SEC.
(b) The Company has at all times since September 26, 2013 been, and as of the date hereof is, a “foreign private issuer” as such term is defined in compliance in all material respects with the applicable listing and corporate governance rules and regulations of NasdaqExchange Act.
(c) The consolidated annual financial statements of the Company and its Subsidiaries included in the Company Reports filed with the SEC (the “Financial Statements”) (i) fairly present, in all material respects, the consolidated financial position of the Company and its Subsidiaries as of the dates thereof and the consolidated results of operations and cash flows for the periods then ended, and (ii) in each case were prepared in accordance with U.S. GAAP consistently applied during the periods and at the dates involved (except in the case of this clause (ii) as may be indicated therein or as otherwise permitted by the SEC with respect to unaudited interim financial statements). None of the Company’s Subsidiaries is subject to periodic reporting requirements of the Exchange Act.
(d) The Company maintains “disclosure controls and procedures procedures” and “internal control over financial reporting” (as such terms are defined in paragraphs (e) and (f), respectively, of Rule 13a-15 under the Exchange Act) as required by Rule 13a-15 or 15d-15 under the Exchange Act. Such The Company’s disclosure controls and procedures are reasonably designed to ensure that all material information required to be disclosed by the Company in its filings with the SEC reports that it files or furnishes under the Exchange Act is recorded recorded, processed, summarized and reported on a timely basis within the time periods specified in the rules and forms of the SEC, and that all such material information is accumulated and communicated to the individuals responsible for the preparation of the Company’s filings with management, as appropriate to allow timely decisions regarding required disclosure and to make the SEC under certifications required pursuant to Sections 302 and 906 of the Exchange Xxxxxxxx-Xxxxx Act. The Company maintains internal control over financial reporting (as defined in Rule 13a-15 or 15d-15Since January 1, as applicable2014, under the Exchange Act). Such internal control over financial reporting is designed to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with GAAP. The Company has disclosed, based on the most recent evaluation of its Chief Executive Officer Company’s principal executive officer and its Chief Financial Officer prior to the date of this Agreement, principal financial officer have disclosed to the Company’s auditors and the audit committee of the Company’s Company Board of Directors (xi) any all significant deficiencies and material weaknesses in the design or operation of its internal controls over financial reporting known by such individuals that are reasonably likely to adversely affect in any material respect the Company’s ability to record, process, summarize and report financial information information, and (yii) any fraudfraud known by such individuals, whether or not material, that involves management or other employees who have a significant role in the Company’s internal control over financial reportingcontrols. The Company has made available prior to the date of this Agreement to Parent (I) either materials relating to or a summary of any disclosure of matters described in clauses (x) or (y) in the preceding sentence all such disclosures made by management of to the Company to its Company’s auditors and audit committee on or after the Applicable Date and prior from January 1, 2014 to the date of this Agreement and (II) any material communication on or after the Applicable Date and prior to the date of this Agreement made by management of the Company or its auditors to the audit committee as required by the listing standards of Nasdaq, the audit committee’s charter or professional standards of the Public Company Accounting Oversight Board. Since the Applicable Date and prior to the date of this Agreement, no complaints from any source regarding a material violation of accounting procedures, internal accounting controls or auditing matters or compliance with Law, including from Company Employees regarding questionable accounting, auditing or legal compliance matters have, to the Knowledge of the Company, been received by the Company.
(d) Each of the consolidated balance sheets included in or incorporated by reference into the Company Reports (including the related notes and schedules) fairly presents or, in the case of Company Reports filed after the date of this Agreement, will fairly present, in each case, in all material respects, the consolidated financial position of the Company and its Subsidiaries, as of the date of such balance sheet, and each of the consolidated statements of operations, cash flows and changes in stockholders’ equity (deficit) included in or incorporated by reference into the Company Reports (including any related notes and schedules) fairly presents, or, in the case of Company Reports filed after the date of this Agreement, will fairly present, in each case, in all material respects, the results of operations, retained earnings (loss) and changes in financial position, as the case may be, of the Company and its Subsidiaries for the periods set forth therein (subject, in the case of unaudited statements, to notes and normal year-end audit adjustments that are not or will not be material in amount or effect), in each case in accordance with GAAP consistently applied during the periods involved, except as may be noted therein or in the notes theretohereof.
(e) Neither the The Company nor any maintains a system of its Subsidiaries has incurred any Indebtedness, “internal control over financial reporting” (as defined in Rules 13a-15 or issued or sold any debt securities or rights to acquire any debt security of the Company or any of its Subsidiaries, the terms of which, or the terms of any instrument under which such Indebtedness, debt securities or rights were issued, requires the public listing of such Indebtedness, debt securities or rights or the maintenance by the Company or any of its Subsidiaries of registration 15d-15 under the Exchange Act) which is designed to provide reasonable assurance regarding the reliability of financial reporting and the preparation of Financial Statements for external purposes in accordance with U.S. GAAP.
Appears in 1 contract
Samples: Merger Agreement (Frutarom LTD)
Company Reports; Financial Statements. (ai) The Company has filed or furnished, as applicable, on a timely basis, basis all forms, statements, certifications, reports and documents required to be filed or furnished by it with or to the SEC pursuant to the Exchange Act or the Securities Act Laws since June 30December 31, 2014 2005 (the “Applicable Date”) (the forms, statements, reports and documents filed with or furnished to the SEC since the Applicable Date and those filed with or furnished to the SEC subsequent to the date of this Agreementhereof, in each case as amendedincluding any amendments thereto, the “Company Reports”). Each of the Company Reports, at the time of its filing or being furnished complied or, if not yet filed or furnished, will comply in all material respects with the applicable requirements of the Securities Act, the Exchange Act and the Xxxxxxxx-Xxxxx Act of 2002 (the “Xxxxxxxx-Xxxxx Act”)Laws, and any rules and regulations promulgated thereunder applicable to the Company Reports. As of their respective dates (or, if amended prior to the date of this Agreementhereof, as of the date of such amendment), the Company Reports did not, and any Company Reports filed with or furnished to the SEC subsequent to the date of this Agreement hereof will not, contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements made therein, in light of the circumstances in which they were made, not misleading.
(bii) The Company is in compliance in all material respects with the applicable listing and corporate governance rules and regulations of Nasdaq.
(c) The Company maintains disclosure controls and procedures required the NYSE. Except as permitted by Rule 13a-15 or 15d-15 under the Exchange Act. Such disclosure controls , including Sections 13(k)(2) and procedures are designed to ensure that information required to be disclosed (3), or by rules of the SEC, since the enactment of the Sxxxxxxx-Xxxxx Act, neither the Company in its filings with the SEC under the Exchange Act is recorded and reported on a timely basis to the individuals responsible for the preparation of the Company’s filings with the SEC under the Exchange Act. The Company maintains internal control over financial reporting (as defined in Rule 13a-15 or 15d-15, as applicable, under the Exchange Act). Such internal control over financial reporting is designed to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with GAAP. The Company has disclosed, based on the most recent evaluation nor any of its Chief Executive Officer and its Chief Financial Officer prior to the date of this Agreementaffiliates has made, to the Company’s auditors and the audit committee of the Company’s Board of Directors arranged or modified (xin any material way) any significant deficiencies and material weaknesses extensions of credit in the design form of a personal loan to any executive officer or operation director of its internal controls over financial reporting that are reasonably likely to adversely affect the Company’s ability to record, process, summarize and report financial information and (y) any fraud, whether or not material, that involves management or other employees who have a significant role in the Company’s internal control over financial reporting. The Company has made available prior to the date of this Agreement to Parent (I) either materials relating to or a summary of any disclosure of matters described in clauses (x) or (y) in the preceding sentence made by management of the Company to its auditors and audit committee on or after the Applicable Date and prior to the date of this Agreement and (II) any material communication on or after the Applicable Date and prior to the date of this Agreement made by management of the Company or its auditors to the audit committee as required by the listing standards of Nasdaq, the audit committee’s charter or professional standards of the Public Company Accounting Oversight Board. Since the Applicable Date and prior to the date of this Agreement, no complaints from any source regarding a material violation of accounting procedures, internal accounting controls or auditing matters or compliance with Law, including from Company Employees regarding questionable accounting, auditing or legal compliance matters have, to the Knowledge of the Company, been received by the Company.
(diii) Each of the consolidated balance sheets included in or incorporated by reference into the Company Reports (including the related notes and schedules) fairly presents presents, or, in the case of Company Reports filed after the date of this Agreementhereof, will fairly present, in each case, in all material respects, present the consolidated financial position of the Company and its Subsidiaries, consolidated Subsidiaries as of the its date of such balance sheet, and each of the consolidated statements of operationsincome, cash flows and changes in stockholders’ equity (deficit) and cash flows included in or incorporated by reference into the Company Reports (including any related notes and schedules) fairly presents, or, or in the case of Company Reports filed after the date of this Agreementhereof, will fairly present, in each case, in all material respects, present the results of operations, retained earnings (loss) and changes in financial position, as the case may be, of the Company and its Subsidiaries such companies for the periods set forth therein, in each case in accordance with U.S. generally accepted accounting principles (“GAAP”) consistently applied during the periods involved, except as may be noted therein (subject, in the case of unaudited statements, to notes and normal year-end audit adjustments that are not or will not be material in amount or effect), in each case in accordance with GAAP consistently applied during the periods involved, except as may be noted therein or in the notes thereto.
(e) Neither the Company nor any of its Subsidiaries has incurred any Indebtedness, or issued or sold any debt securities or rights to acquire any debt security of the Company or any of its Subsidiaries, the terms of which, or the terms of any instrument under which such Indebtedness, debt securities or rights were issued, requires the public listing of such Indebtedness, debt securities or rights or the maintenance by the Company or any of its Subsidiaries of registration under the Exchange Act.
Appears in 1 contract
Samples: Merger Agreement (Unionbancal Corp)
Company Reports; Financial Statements. (a) The Company has filed or furnished, as applicable, on a timely basis, all forms, statements, certifications, reports and documents required to be filed or furnished by it with or to the SEC U.S. Securities and Exchange Commission (the “SEC”) pursuant to the Exchange Act or the Securities Act since June 30December 31, 2014 2019 (the “Applicable Date”) (the forms, statements, reports and documents filed with or furnished to the SEC since the Applicable Date and those filed with or furnished to the SEC subsequent to the date of this Agreement, in each case as amended, the “Company Reports”). Each of the Company Reports, at the time of its filing or being furnished complied or, if not yet filed or furnished, will comply complied in all material respects with the applicable requirements of the Securities Act, the Exchange Act and the Xxxxxxxx-Xxxxx Act of 2002 (the “Xxxxxxxx-Xxxxx Act”), and any rules and regulations promulgated thereunder applicable to the Company Reports. True, correct and complete copies of all Company Reports are publicly available in the Electronic Data Gathering Analysis and Retrieval database of the SEC. As of their respective filing dates (or, if amended or superseded by a filing prior to the date of this Agreementhereof, as of on the date of such amendmentamended or superseded filing), the Company Reports did not, and any Company Reports filed with or furnished to the SEC subsequent to the date of this Agreement will not, contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements made therein, in light of the circumstances in which they were made, not misleading. As of the date hereof, there are no material outstanding or unresolved comments in comments letters from the SEC staff with respect to any of the Company Reports. There are no unconsolidated Subsidiaries of the Company or any off-balance sheet arrangements of the type required to be disclosed pursuant to Item 303(b) of Regulation S-K promulgated by the SEC that have not been so disclosed in the Company Reports.
(b) The Company is in compliance in all material respects with the applicable listing and corporate governance rules and regulations of Nasdaqthe NASDAQ.
(c) The Company maintains disclosure controls and procedures required by (as defined in Rule 13a-15 13a-15(e) or 15d-15 15d-15(e) under the Exchange Act. Such disclosure controls and procedures ) that are designed sufficient to ensure provide reasonable assurance that material information required to be disclosed by the Company in its filings with the SEC under the Exchange Act is recorded and reported on a timely basis to the individuals responsible for the preparation of the Company’s filings with the SEC under the Exchange Act. The Company maintains internal control controls over financial reporting (as defined in Rule 13a-15 13a-15(f) or 15d-1515d-15(f), as applicable, under the Exchange Act). Such internal control over financial reporting is designed ) sufficient to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with GAAP. The , including (i) policies and procedures that require the maintenance of records that in reasonable detail accurately and fairly reflect the transactions and dispositions of the assets of the Company has disclosed, based on the most recent evaluation of its Chief Executive Officer and its Chief Financial Officer prior to the date of this Agreement, to the Company’s auditors Subsidiaries and the audit committee (ii) that transactions are made only in accordance with appropriate authorizations of the Company’s Board management and board of Directors directors. Since the Applicable Date, neither the Company, nor to the Knowledge of the Company, the Company’s independent registered public accounting firm, has identified or received any notification of (xi) any “significant deficiencies and deficiencies” or “material weaknesses weaknesses” in the design or operation of its internal controls over financial reporting that are reasonably likely to adversely affect the Company’s ability to recordreporting, process, summarize and report financial information and (yii) any fraud, whether or not material, that involves management or other employees who have a significant role in the Company’s internal control over financial reporting. The Company has made available prior to the date of this Agreement to Parent (I) either materials relating to or a summary of any disclosure of matters described in clauses (x) , or (y) in the preceding sentence made by management of the Company to its auditors and audit committee on or after the Applicable Date and prior to the date of this Agreement and (IIiii) any material communication on or after the Applicable Date and prior to the date of this Agreement made by management of the Company or its auditors to the audit committee as required by the listing standards of Nasdaq, the audit committee’s charter or professional standards of the Public Company Accounting Oversight Board. Since the Applicable Date and prior to the date of this Agreement, no complaints from any source regarding a material violation of accounting procedures, internal accounting controls or auditing matters or compliance with Lawrelating to the period since the Applicable Date, including from employees of the Company Employees or its Subsidiaries regarding questionable accounting, auditing or legal compliance matters havematters, in each case that would be reasonably expected to the Knowledge of adversely affect the Company’s ability to record, been received by the Company.
(d) process, summarize and report financial information. Each of the consolidated balance sheets included in or incorporated by reference into the Company Reports (including the related notes and schedules) fairly presents or, in the case of Company Reports filed after the date of this Agreement, will fairly present, in each case, in all material respects, the consolidated financial position of the Company and its Subsidiaries, as of the date of such balance sheet, and each of the consolidated statements of operationsincome, cash flows and changes in stockholders’ equity (deficit) included in or incorporated by reference into the Company Reports (including any related notes and schedules) fairly presents, or, in the case of Company Reports filed after the date of this Agreement, will fairly present, in each case, in all material respects, the results of operations, retained earnings (loss) and changes in financial position, as the case may be, of the Company and its Subsidiaries for the periods set forth therein (subject, in the case of unaudited statements, to notes and normal year-end audit adjustments that are not or will not be material in amount or effect), in each case in accordance with GAAP consistently applied during the periods involved, except as may be noted therein or in the notes thereto. Since the Applicable Date, the Company and each of its officers and, to the Knowledge of the Company, each of its directors, have been and are in compliance in all material respects with the applicable provisions of the Xxxxxxxx-Xxxxx Act and the rules and regulations promulgated thereunder.
(ed) Neither the Company nor any of its Subsidiaries has incurred any Indebtednessis, or issued has any commitment to become, a party to any joint venture, off-balance sheet partnership or sold any debt securities similar Contract (including any Contract relating to any transaction or rights to acquire any debt security of relationship between or among the Company or and any of its Subsidiaries, on the terms of whichone hand, and any unconsolidated affiliate, on the other hand), including any structured finance, special purpose or limited purpose entity or Person, or any “off-balance sheet arrangements” (as defined in Item 303(b) of Regulation S-K under the terms Securities Act), where the result, purpose or intended effect of such Contract is to avoid disclosure of any instrument under which such Indebtednessmaterial transaction involving, debt securities or rights were issuedmaterial liabilities of, requires the public listing of such Indebtedness, debt securities or rights or the maintenance by the Company or any of its Subsidiaries in the Company Reports (including any audited financial statements and unaudited interim financial statements of registration under the Exchange ActCompany included therein).
Appears in 1 contract
Company Reports; Financial Statements. (a) The Company has timely filed or furnished, as applicable, on a timely basis, all forms, statements, certifications, reports and other documents required to be filed or furnished by it with or to the SEC pursuant to the Exchange Act or the Securities Act Act, as the case may be, since June September 30, 2014 2007 (the “Applicable Date”) (the forms, statements, certifications, reports and documents filed with or furnished to the SEC since the Applicable Date and those filed with or furnished to the SEC subsequent to the date of this Agreement, in each case as amendedincluding any amendments thereto, the “Company Reports”). Each of the Company Reports, at the time of its filing or being furnished complied or, if not yet filed or furnished, will comply in all material respects with the applicable requirements of the Securities Act, the Exchange Act and the Xxxxxxxx-Xxxxx Act of 2002 (the “Xxxxxxxx-Xxxxx Act”), and any rules and regulations promulgated thereunder applicable to the Company Reports. As of their respective dates (or, if amended prior to the date of this Agreement, as of the date of such amendment), the Company Reports did not, and any Company Reports filed with or furnished to the SEC subsequent to the date of this Agreement will not, contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements made therein, in light of the circumstances in which they were made, not misleading. The Company has made available to Parent correct and complete copies of all material correspondence between the SEC, on the one hand, and the Company and any of the Company Subsidiaries, on the other hand, occurring since the Applicable Date and prior to the date hereof and not available on the SEC’s XXXXX system prior to the date of this Agreement. As of the date hereof, there are no outstanding or unresolved comments in comment letters from the SEC staff with respect to any of the Company Reports. To the Knowledge of the Company, as of the date hereof, none of the Company Reports is the subject of ongoing SEC review, outstanding SEC comment or outstanding SEC investigation.
(b) The Company is in compliance in all material respects with the applicable listing and corporate governance rules its Subsidiaries have established and regulations of Nasdaq.
(c) The Company maintains maintain internal controls and procedures and disclosure controls and procedures required by Rule 13a-15 or and/or 15d-15 under the Exchange Act. Such disclosure controls and procedures are designed to ensure that information required to be disclosed by provide reasonable assurance and are effective in providing reasonable assurance (i) regarding the Company in its filings with the SEC under the Exchange Act is recorded and reported on a timely basis to the individuals responsible for the preparation reliability of the Company’s filings with the SEC under the Exchange Act. The Company maintains internal control over financial reporting (as defined in Rule 13a-15 or 15d-15, as applicable, under the Exchange Act). Such internal control over financial reporting is designed to provide reasonable assurance regarding the reliability of financial reporting and the preparation of Company financial statements for external purposes in accordance with GAAPGAAP and (ii) that the Company’s principal executive officer and its principal financial officer are alerted on a timely basis to material information required to be included in the Company’s periodic reports required under the Exchange Act. The Company has disclosed, based on the its most recent evaluation of its Chief Executive Officer and its Chief Financial Officer prior to the date of this Agreement, to the Company’s auditors and the audit committee of the Company’s Company Board of Directors (x) any all significant deficiencies and material weaknesses in the design or operation of its internal controls over financial reporting (as defined in Rule 13a-15(f) under the Exchange Act) that are reasonably likely to adversely affect the Company’s ability to record, process, summarize and report financial information and (y) any fraud, whether or not material, that involves management or other employees who have a significant role in the Company’s internal control over financial reporting. The Company has made available prior to the date of this Agreement to Parent (I) either materials relating to or a summary of any disclosure of matters described in clauses (x) or (y) in the preceding sentence made by management of the Company to its auditors and audit committee on or after the Applicable Date and prior to the date of this Agreement and (II) any material communication on or after the Applicable Date and prior to the date of this Agreement made by management of the Company or its auditors to the audit committee as required by the listing standards of Nasdaq, the audit committee’s charter or professional standards of the Public Company Accounting Oversight Board. Since the Applicable Date and prior to the date of this Agreement, no complaints from any source regarding a material violation of accounting procedures, internal accounting controls or auditing matters or compliance with Law, including from Company Employees regarding questionable accounting, auditing or legal compliance matters have, to the Knowledge of the Company, been received by the Company.
(dc) Each of the consolidated balance sheets financial statements of the Company included in or incorporated by reference into the Company Reports (including including, in each case, the related notes and schedulesschedules thereto) (the “Company Financial Statements”) fairly presents or, in the case of Company Reports filed after the date of this Agreement, will fairly present, in each casepresents, in all material respects, the consolidated financial position of the Company and its Subsidiaries, Subsidiaries as of the date of such balance sheet, respective dates thereof and each of the consolidated statements results of operations, operations and cash flows and changes in stockholders’ equity (deficit) included in or incorporated by reference into the Company Reports (including any related notes and schedules) fairly presents, or, in the case of Company Reports filed after the date of this Agreement, will fairly present, in each case, in all material respects, the results of operations, retained earnings (loss) and changes in financial position, as the case may be, of the Company and its Subsidiaries for the respective periods set forth therein (subject, in the case of unaudited statements, to notes and normal year-end audit adjustments that are not or will not be material in amount or effect)) and, in each case were prepared in accordance with GAAP U.S. generally accepted accounting principles (“GAAP”) consistently applied during the periods involved, except as may be noted therein or in the notes theretotherein.
(e) Neither the Company nor any of its Subsidiaries has incurred any Indebtedness, or issued or sold any debt securities or rights to acquire any debt security of the Company or any of its Subsidiaries, the terms of which, or the terms of any instrument under which such Indebtedness, debt securities or rights were issued, requires the public listing of such Indebtedness, debt securities or rights or the maintenance by the Company or any of its Subsidiaries of registration under the Exchange Act.
Appears in 1 contract
Samples: Merger Agreement (BWAY Holding CO)
Company Reports; Financial Statements. (ai) The filings required to be made by the Company has since December 31, 2001 under the Securities Act and the Exchange Act have been filed or furnishedwith the Securities and Exchange Commission (the “SEC”), as applicable, on a timely basis, including all forms, registration, proxy and information statements, certificationsreports, agreements (oral or written) and all documents, exhibits, amendments and supplements appertaining thereto, and complied, as of their respective dates, in all material respects with all applicable requirements of the appropriate statutes and the rules and regulations thereunder (collectively, including any amendments of any such reports and documents required to be filed or furnished by it with or to the SEC pursuant to the Exchange Act or the Securities Act since June 30, 2014 (the “Applicable Date”) (the forms, statements, reports and documents filed with or furnished to the SEC since by the Applicable Date and those filed with or furnished to the SEC subsequent Company prior to the date of this Agreement, in each case as amendedhereof, the “Company Reports”). Each of the The Company Reports, at the time of its filing or being furnished complied or, if not yet filed or furnished, will comply in all material respects with the applicable requirements of the Securities Act, the Exchange Act and the Xxxxxxxx-Xxxxx Act of 2002 has made available to Parent (the “Xxxxxxxx-Xxxxx Act”), and any rules and regulations promulgated thereunder applicable to the x) each Company Reports. As of their respective dates (or, if amended prior to the date of this Agreement, as of the date of such amendment), the Company Reports did not, and any Company Reports Report filed with or furnished to the SEC subsequent by the Company pursuant to the Securities Act or the Exchange Act since December 31, 2001 and prior to the date hereof, each, in all material respects, in the form (including exhibits, annexes and any amendments thereto) promulgated by the SEC under the Securities Act or the Exchange Act, as the case may be, and (y) each of this Agreement will notthe Company’s press releases released to the public since January 1, contain 2004. None of the Company Reports (in the case of Company Reports filed pursuant to the Securities Act), as of their effective dates, contained any untrue statement of a material fact or omit omitted to state a material fact required to be stated therein or necessary to make the statements made therein not misleading. None of the Company Reports (in the case of Company Reports filed pursuant to the Exchange Act) as of the respective dates filed with the SEC or first mailed to stockholders, as applicable, contained any untrue statement of a material fact or omitted to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. None of the Company Reports (in the case of Company Reports issued to the public as press releases) as of their respective release dates, contained any untrue statement of a material fact or omitted to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(bii) The consolidated financial statements of the Company is and its Subsidiaries included in compliance such Company Reports complied as of the effective, file or release dates thereof, as applicable, as to form in all material respects with the applicable listing and corporate governance rules and regulations of Nasdaq.
(c) The Company maintains disclosure controls and procedures required by Rule 13a-15 or 15d-15 under the Exchange Act. Such disclosure controls and procedures are designed to ensure that information required to be disclosed by the Company in its filings with the SEC under the Exchange Act is recorded and reported on a timely basis to the individuals responsible for the preparation of the Company’s filings with the SEC under the Exchange Actrespect thereto. The Company maintains internal control over financial reporting (as defined in Rule 13a-15 or 15d-15, as applicable, under the Exchange Act). Such internal control over financial reporting is designed to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with GAAP. The Company has disclosed, based on the most recent evaluation of its Chief Executive Officer and its Chief Financial Officer prior to the date of this Agreement, to the Company’s auditors and the audit committee of the Company’s Board of Directors (x) any significant deficiencies and material weaknesses in the design or operation of its internal controls over financial reporting that are reasonably likely to adversely affect the Company’s ability to record, process, summarize and report financial information and (y) any fraud, whether or not material, that involves management or other employees who have a significant role in the Company’s internal control over financial reporting. The Company has made available prior to the date of this Agreement to Parent (I) either materials relating to or a summary of any disclosure of matters described in clauses (x) or (y) in the preceding sentence made by management of the Company to its auditors and audit committee on or after the Applicable Date and prior to the date of this Agreement and (II) any material communication on or after the Applicable Date and prior to the date of this Agreement made by management of the Company or its auditors to the audit committee as required by the listing standards of Nasdaq, the audit committee’s charter or professional standards of the Public Company Accounting Oversight Board. Since the Applicable Date and prior to the date of this Agreement, no complaints from any source regarding a material violation of accounting procedures, internal accounting controls or auditing matters or compliance with Law, including from Company Employees regarding questionable accounting, auditing or legal compliance matters have, to the Knowledge of the Company, been received by the Company.
(d) Each of the consolidated balance sheets included in or incorporated by reference into the Company Reports (including the related notes and schedules) fairly presents or, in the case of Company Reports filed after the date of this Agreement, will fairly present, in each casefairly, in all material respects, the consolidated financial position of the Company and its Subsidiaries, Subsidiaries as of the date of such balance sheetits date, and each of the consolidated statements of operations, income and consolidated statements of cash flows and changes in stockholders’ equity (deficit) included in or incorporated by reference into the Company Reports (including any related notes and schedules) fairly presents, or, in the case of Company Reports filed after the date of this Agreement, will fairly present, in each case, presents in all material respects, respects the results of operations, retained earnings (loss) and changes in financial position, as the case may be, of the Company and its Subsidiaries for the periods set forth therein (subject, in the case of unaudited statements, to notes the absence of notes, similar presentation items and normal year-end audit adjustments that are not or will not be material in amount or effectadjustments), in each case in accordance with U.S. GAAP consistently applied during the periods involved, except as may be noted therein or therein. Any material change by the Company in the notes theretoaccounting principles, practices or methods used in such financial statements of the Company and its Subsidiaries included in the Company Reports has been appropriately disclosed in such financial statements.
(eiii) Neither The management of the Company has (x) implemented (A) disclosure controls and procedures (as defined in Rule 13a-15(e) of the Exchange Act) to ensure that material information relating to the Company, including its Subsidiaries, is made known to the management of the Company by others within those entities and (B) a system of internal control over financial reporting (as defined in Rule 13a-15(f) of the Exchange Act) sufficient to provide reasonable assurances regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with U.S. GAAP, and (y) has disclosed, based on its most recent evaluation, to the Company’s outside auditors and the audit committee of the Board of Directors of the Company (A) all significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the Company’s ability to record, process, summarize and report financial data and (B) any fraud, whether or not material, that involves management or other employees who have a significant role in the Company’s internal control over financial reporting. Any such significant deficiency, material weakness or fraud is described on Section 5.1(e)(iii) of the Company Disclosure Schedules. Since December 31, 2004, there has not been any material change in the Company’s internal control over financial reporting. There are no outstanding loans made by the Company or any of its Subsidiaries to any executive officer (as defined in Rule 3b-7 under the Exchange Act) or director of the Company. Since the enactment of the Xxxxxxxx-Xxxxx Act of 2002 (the “Xxxxxxxx-Xxxxx Act”), neither the Company nor any of its Subsidiaries has incurred made any Indebtedness, or issued or sold loans to any debt securities or rights to acquire any debt security of the Company or any of its Subsidiaries, the terms of which, or the terms of any instrument under which such Indebtedness, debt securities or rights were issued, requires the public listing of such Indebtedness, debt securities or rights or the maintenance by the Company or any of its Subsidiaries of registration executive officer (as defined in Rule 3b-7 under the Exchange Act) or director of the Company.
Appears in 1 contract
Samples: Merger Agreement (Teva Pharmaceutical Industries LTD)
Company Reports; Financial Statements. (ai) The Each of the Company and the Filing Subsidiaries has filed or furnished, as applicable, on a timely basis, all forms, statements, certifications, reports and other documents (including exhibits, financial statements and schedules thereto, and other information incorporated therein) required to be filed or furnished by it with or to the SEC pursuant to the Exchange Act or Act, the Securities Act or any Contract governing any indebtedness of the Company or such Filing Subsidiary requiring such filings to be made, since June 30December 31, 2014 2012 (the “Applicable Date”) (the all such forms, statements, certifications, reports and documents filed with or furnished to the SEC since the Applicable Date and those filed with or furnished to the SEC subsequent to the date of this Agreementhereof, in each case as amendedincluding any amendments thereto, the “Company Reports”). Each of the Company Reports, including any financial statements or schedules included therein, at the time of its filing or being furnished complied or, if not yet filed or furnishedwill comply, will comply in all material respects with the applicable requirements of the Securities Act, the Exchange Act and the Xxxxxxxx-Xxxxx Act of 2002 2002, as amended, and the rules and regulations promulgated thereunder (the “Xxxxxxxx-Xxxxx Act”), and any rules and regulations promulgated thereunder ) applicable to the Company Reports. As of their respective dates (or, if amended prior to or after the date of this Agreementhereof, as of the date of such amendment), the Company Reports filed with or furnished to the SEC prior to the date hereof did not, and any Company Reports filed with or furnished to the SEC subsequent to the date of this Agreement hereof will not, contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements made therein, in light of the circumstances in which they were made, not misleading. As of the date of this Agreement, there are no material outstanding or unresolved comments received from the SEC staff with respect to the Company Reports. None of the Company Reports is, to the Knowledge (as defined below) of the Company, the subject of ongoing SEC review.
(bii) The Each of the consolidated balance sheets included in, or incorporated by reference into, the Company is in compliance Reports, as amended prior to the date hereof (including the related notes and schedules thereto) fairly presents in all material respects with respects, or in the case of Company Reports filed after the date hereof, will fairly present in all material respects, the financial position of the applicable listing entity and corporate governance its consolidated Subsidiaries as of its date (if amended, as of the date of the last such amendment prior to the date hereof) and each of the statements of consolidated income, comprehensive income, cash flows and shareholders’ equity included in or incorporated by reference into the Company Reports (including any related notes and schedules thereto), as finally amended prior to or after the date hereof, fairly presents in all material respects, or in the case of Company Reports filed after the date hereof, will fairly present in all material respects, the financial position, results of operations and cash flows, as the case may be, of the applicable entity and its consolidated Subsidiaries for the periods set forth therein (subject, in the case of unaudited statements, to normal year-end adjustments), in each case in accordance with GAAP (except, in the case of unaudited quarterly financial statements, as permitted by Regulation S-X or the applicable rules or regulations under the Securities Act or the Exchange Act) applied on a consistent basis during the periods and regulations as of Nasdaqthe dates involved (except as may be noted therein).
(ciii) The Company maintains disclosure controls and procedures required by Rule 13a-15 or 15d-15 under the Exchange Act. Such disclosure controls and procedures are designed to ensure that information required to be disclosed by the Company in its filings with the SEC under the Exchange Act is recorded and reported on a timely basis to the individuals responsible for the preparation of the Company’s filings with the SEC under the Exchange Act. The Company maintains internal control over financial reporting (as defined in Rule 13a-15 or 15d-15, as applicable, under the Exchange Act). Such internal control over financial reporting is designed to provide effective in providing reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with GAAP, in each case, in all material respects. The Except as has not had, and would not reasonably be expected to have, individually or in the aggregate, a material effect on the nature or reliability of the information disclosed in the Company’s periodic reports filed under the Exchange Act, (A) each of the Company and the Filing Subsidiaries maintains “disclosure controls and procedures” required by Rule 13a-15 or 15d-15 under the Exchange Act that are effective to ensure that information required to be disclosed by it is recorded and reported on a timely basis to the individuals responsible for the preparation of its filings with the SEC and other public disclosure documents (including its chief executive officer and chief financial officer) and (B) neither the Company nor any of the Filing Subsidiaries has discloseddisclosed and is not required to disclose, based on the its most recent evaluation of its Chief Executive Officer and its Chief Financial Officer prior to the date of this Agreement, to the Company’s its outside auditors and the audit committee of the Company’s Board its board of Directors directors (xor similar governing body): (1) any significant deficiencies and material weaknesses in the design or operation of its internal controls over financial reporting (as defined in Rule 13a-15(f) under the Exchange Act) that are reasonably likely to adversely affect the Company’s its ability to record, process, summarize and report financial information and (y2) any fraud, known to it, whether or not material, that involves management or other employees who have a significant role in the Company’s its internal control controls over financial reporting. The Company has made available prior to the date of this Agreement to Parent (I) either materials relating to or a summary of any disclosure of matters described in clauses (x) or (y) in the preceding sentence made by management of the Company to its auditors and audit committee on or after the Applicable Date and prior to the date of this Agreement and (II) any material communication on or after the Applicable Date and prior to the date of this Agreement made by management of the Company or its auditors to the audit committee as required by the listing standards of Nasdaq, the audit committee’s charter or professional standards of the Public Company Accounting Oversight Board. Since the Applicable Date and prior to the date of this Agreement, no complaints from any source regarding a material violation of accounting procedures, internal accounting controls or auditing matters or compliance with Law, including from Company Employees regarding questionable accounting, auditing or legal compliance matters have, to the Knowledge of the Company, been received by the Company.
(div) Each of the consolidated balance sheets included in Except as would not have, individually or incorporated by reference into the Company Reports (including the related notes and schedules) fairly presents or, in the case of aggregate, a Company Reports filed after the date of this AgreementMaterial Adverse Effect, will fairly present, in each case, in all material respects, the consolidated financial position of the Company and its Subsidiaries, as of the date of such balance sheet, and each of the consolidated statements of operations, cash flows and changes in stockholders’ equity (deficit) included in or incorporated by reference into the Company Reports (including any related notes and schedules) fairly presents, or, in the case of Company Reports filed after the date of this Agreement, will fairly present, in each case, in all material respects, the results of operations, retained earnings (loss) and changes in financial position, as the case may be, of the Company and its Subsidiaries for is in compliance with the periods set forth therein (subjectapplicable provisions of the Xxxxxxxx-Xxxxx Act. Without limiting the generality of the foregoing, in the case of unaudited statements, to notes and normal year-end audit adjustments that are not or will not be material in amount or effect), in each case in accordance with GAAP consistently applied during the periods involved, except as may be noted therein or in the notes thereto.
(e) Neither neither the Company nor any of its Subsidiaries has incurred any Indebtednessis a party to, or issued has a commitment to become a party to, any joint venture, off-balance sheet partnership or sold any debt securities similar Contract or rights arrangement (including any Contract or arrangement relating to acquire any debt security of transaction or relationship between or among the Company or any of its Subsidiaries, on the terms one hand, and any unconsolidated Affiliate, including any structured finance, special purpose or limited purpose entity or Person, on the other hand) or any “off-balance sheet arrangements” (as defined in Item 303(a) of whichRegulation S-K of the SEC), where the result, purpose or effect of such Contract or arrangement is to avoid disclosure of any material transaction involving, or the terms of any instrument under which such Indebtednessmaterial liabilities of, debt securities or rights were issued, requires the public listing of such Indebtedness, debt securities or rights or the maintenance by the Company or any of its Subsidiaries of registration under in the Exchange ActCompany Reports or the financial statements included therein.
Appears in 1 contract
Samples: Purchase Agreement (Energy Future Competitive Holdings Co LLC)
Company Reports; Financial Statements. (ai) The Company has filed or furnished, as applicable, on a timely basis, all forms, statements, certifications, reports and documents required to be filed or furnished by it with or to the SEC pursuant to under the Exchange Act or the Securities Act of 1933, as amended and the rules and regulations thereunder (the “Securities Act”) since June 30May 1, 2014 2004 (the “Applicable Date”) (the forms, statements, reports and documents filed with or furnished to the SEC since the Applicable Date and those filed with or furnished to the SEC subsequent to the date of this Agreementhereof, in each case as amendedincluding any amendments thereto, the “Company Reports”). Each of the Company Reports, at the time of its filing or being furnished complied or, if not yet filed or furnished, will comply in all material respects with with, to the extent in effect at the time of filing, the applicable requirements of the Securities Act, the Exchange Act and the Xxxxxxxx-Xxxxx Act of 2002 (the “Xxxxxxxx-Xxxxx Act”), and any rules and regulations promulgated thereunder applicable to the Company Reports. As of their respective dates (or, if amended prior to the date of this Agreementhereof, as of the date of such amendment), the Company Reports did not, and any Company Reports filed with or furnished to the SEC subsequent to the date of this Agreement will not, not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements made therein, in light of the circumstances in which they were made, not misleading.
(bii) The Except as permitted by the Exchange Act, including Sections 13(k)(2) and (3) or rules of the SEC, since the enactment of the Xxxxxxxx-Xxxxx Act, neither the Company is nor any of its Subsidiaries has made, arranged or modified (in compliance any material way) any extensions of credit in all material respects with the applicable listing and corporate governance rules and regulations form of Nasdaqa personal loan to any executive officer or director of the Company.
(ciii) The Company maintains disclosure controls and procedures required by Rule 13a-15 or 15d-15 under the Exchange Act. Such disclosure controls and procedures are designed effective to ensure that information required to be disclosed by the Company in its filings with the SEC under the Exchange Act is recorded and reported on a timely basis to the individuals responsible for the preparation of the Company’s filings with the SEC under the Exchange Actand other public disclosure documents. The Company maintains internal control over financial reporting (as defined in Rule 13a-15 or 15d-15, as applicable, under the Exchange Act). Such internal control over financial reporting is designed to provide effective in providing reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with GAAP. The Company has discloseddisclosed and identified, based on the most recent evaluation of its Chief Executive Officer chief executive officer and its Chief Financial Officer chief financial officer prior to the date of this Agreementhereof, to for the Company’s auditors and the audit committee of the Company’s Board board of Directors directors (xA) any significant deficiencies and material weaknesses in the design or operation of its internal controls over financial reporting that are reasonably likely to adversely affect the Company’s ability to record, process, summarize and report financial information information, (B) any material weaknesses in internal control over financial reporting and (yC) any fraud, whether or not material, that involves management or other employees who have a significant role in the Company’s internal control over financial reporting. The Company has made available prior to the date of this Agreement to Parent (I) either materials relating to or a summary of any disclosure of matters described in clauses (x) or (y) in the preceding sentence made by management of the Company to its auditors and audit committee on or after the Applicable Date and prior to the date of this Agreement and (II) any material communication on or after the Applicable Date and prior to the date of this Agreement made by management of the Company or its auditors to the audit committee as required by the listing standards of Nasdaq, the audit committee’s charter or professional standards of the Public Company Accounting Oversight Board. Since the Applicable Date and prior to the date of this AgreementDate, no material complaints from any source regarding a material violation of accounting proceduresaccounting, internal accounting controls or auditing matters or compliance with Lawmatters, including and no concerns from Company Employees employees regarding material questionable accountingaccounting or auditing matters, auditing or legal compliance matters have, to the Knowledge of the Company, have been received by the Company from any person in writing, from the Company’s outside auditors, actuaries or attorneys, or on the hotline maintained by the Company for such purposes. No attorney representing the Company or any of its Subsidiaries, whether or not employed by the Company or any of its Subsidiaries, has reported evidence of a violation of securities laws, breach of fiduciary duty or similar violation by the Company or any of its officers, directors, employees or agents to the Company’s chief legal officer, audit committee (or other committee designated for the purpose) of the board of directors or the board of directors pursuant to the rules adopted pursuant to Section 307 of the Xxxxxxxx-Xxxxx Act or any Company policy contemplating such reporting, including in instances not required by those rules. Since the Applicable Date, any material change in internal control over financial reporting or failure or inadequacy of disclosure controls required to be disclosed in the Company Reports has been so disclosed.
(div) Each of the The consolidated balance sheets included in or incorporated by reference into the Company Reports (including the related notes and schedules) fairly presents or, in the case of Company Reports filed after the date of this Agreement, will fairly present, in each case, in all material respects, the consolidated financial position of the Company and its consolidated Subsidiaries, taken as a whole, as of the date of such balance sheettheir respective dates, and each of the consolidated statements of operations, cash flows and changes in stockholders’ shareholders equity (deficit) and cash flows included in or incorporated by reference into the Company Reports (including any related notes and schedules) fairly presents, or, in the case of Company Reports filed after the date of this Agreement, will fairly present, in each case, in all material respects, the results of operations, retained earnings (loss) and changes in financial position, as the case may be, of the Company and its Subsidiaries consolidated Subsidiaries, taken as a whole, for the periods set forth therein (subject, in the case of unaudited statements, to notes and normal year-end audit adjustments that are not or will not be material in amount or effect), ; and in each case were prepared in accordance with GAAP consistently applied during the periods involved, except as may be noted therein or in the notes theretotherein.
(ev) Neither The Company has previously furnished or made available to Parent true and complete copies of the annual statements or other comparable statements for each of the years ended December 31, 2004, and December 31, 2005 and December 31, 2006, together with all exhibits and schedules thereto (collectively, the “Company nor any of its Subsidiaries has incurred any IndebtednessSAP Statements”), or issued or sold any debt securities or rights with respect to acquire any debt security each of the Company Insurance Subsidiaries, in each case as filed with the Governmental Entity charged with supervision of insurance companies of such Company Insurance Subsidiary’s jurisdiction of domicile. The Company SAP Statements were prepared in conformity with applicable statutory accounting practices prescribed or permitted by such Governmental Entity applied on a consistent basis (“SAP”) and present fairly, in all material respects, to the extent required by and in conformity with SAP, the statutory financial condition of such Company Insurance Subsidiary at their respective dates and the results of operations, changes in capital and surplus and cash flow of such Company Insurance Subsidiary for each of the periods then ended. The Company SAP Statements were filed with the applicable Governmental Entity in a timely fashion on forms prescribed or permitted by such Governmental Entity. No deficiencies or violations material to the financial condition of any of its the Company Insurance Subsidiaries, individually, whether or not material in the terms of whichaggregate, have been asserted in writing by any Governmental Entity which have not been cured or otherwise resolved to the terms of any instrument under which such Indebtedness, debt securities or rights were issued, requires the public listing satisfaction of such IndebtednessGovernmental Entity (unless not currently pending). The Company has made available to Parent true and complete copies of all financial examinations, debt securities market-conduct examinations and other reports of Governmental Entities since December 31, 2004, including the most recent reports of state insurance regulatory authorities, relating to each Company Insurance Subsidiary. The quarterly and annual statements of each Company Insurance Subsidiary filed on or rights after the date hereof and prior to the Closing (“Interim SAP Statements”), when filed with the applicable Governmental Entities, including insurance regulatory authorities, of the applicable jurisdictions, will present fairly, to the extent required by and in conformity with SAP in all material respects, the statutory financial condition of such Company Insurance Subsidiary at their respective dates indicated and the results of operations, changes in capital and surplus and cash flow of such Company Insurance Subsidiary for each of the periods therein specified (subject to normal year-end adjustments) and will be filed in a timely fashion on forms prescribed or the maintenance permitted by the relevant Governmental Entity. The Company will deliver to Parent true, correct and complete copies of the Interim SAP Statements promptly after they are filed with the applicable Governmental Entity in the domiciliary states.
(vi) The aggregate reserves for claims, losses (including, without limitation, incurred but not reported losses), loss adjustment expenses (whether allocated or any unallocated) and unearned premium, as reflected in each of its Subsidiaries the Company SAP Statements, (A) were determined in accordance with presently accepted actuarial standards consistently applied (except as otherwise noted in the financial statements and notes thereto included in such financial statements); (B) are fairly stated in accordance with sound actuarial principles; (C) were computed on the basis of registration under methodologies consistent in all material respects with those used in computing the Exchange Actcorresponding reserves in the prior fiscal years (except as otherwise noted in the financial statements and notes thereto included in such financial statements) and (D) include provisions for all actuarial reserves and related items which ought to be established in accordance with applicable Laws.
Appears in 1 contract
Samples: Agreement and Plan of Merger (21st Century Insurance Group)
Company Reports; Financial Statements. (ai) The Except as disclosed on Section 5.1(e)(i) of the Company Disclosure Letter, the Company has filed or furnished, as applicable, on a timely basis, all forms, statements, certifications, reports and documents required to be filed or furnished by it with or to the SEC pursuant to the Exchange Act or the Securities Act Laws since June 30December 31, 2014 (the “Applicable Date”) 2009 (the forms, statements, reports and documents filed with or furnished to the SEC since the Applicable Date such date and those filed with or furnished to the SEC subsequent to the date of this Agreementhereof, in each case as amendedincluding any amendments thereto, the “Company Reports”). Each of the Company Reports, at the time of its filing or being furnished complied or, if not yet filed or furnished, will comply in all material respects with the applicable requirements of the Securities Act of 1933 (the “Securities Act”), the Exchange Act and the Xxxxxxxx-Xxxxx Act of 2002 (the “Xxxxxxxx-Xxxxx Act”), and any rules and regulations promulgated thereunder applicable to the Company Reports. As of their respective dates (or, if amended prior to the date of this Agreementhereof, as of the date of such amendment), the Company Reports did not, and any Company Reports filed with or furnished to the SEC subsequent to the date of this Agreement hereof will not, contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements made therein, in light of the circumstances in which they were made, not misleading.
(bii) The Except as permitted by the Exchange Act, including Sections 13(k)(2) and (3) or rules of the SEC, since the enactment of the Xxxxxxxx-Xxxxx Act, neither the Company is nor any of its affiliates has made, arranged or modified (in compliance any material way) any extensions of credit in all material respects with the applicable listing and corporate governance rules and regulations form of Nasdaqa personal loan to any executive officer or director of the Company.
(ciii) The Company maintains disclosure controls and procedures required by Rule 13a-15 or 15d-15 under the Exchange Act. Such disclosure controls and procedures are designed effective to ensure that information required to be disclosed by the Company in its filings with the SEC under the Exchange Act is recorded and reported on a timely basis to the individuals responsible for the preparation of the Company’s filings with the SEC under the Exchange Actand other public disclosure documents. The Company maintains internal control over financial reporting (as defined in Rule 13a-15 or 15d-15, as applicable, under the Exchange Act). Such internal control over financial reporting is are designed and intended to provide be effective in providing reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with GAAPgenerally accepted accounting principles and includes policies and procedures that (A) pertain to the maintenance of records that in reasonable detail accurately and fairly reflect the transactions and dispositions of the asset of the Company, (B) provide reasonable assurance that transactions are recorded as necessary to permit preparation of financial statements in accordance with generally accepted accounting principles, and that receipts and expenditures of the Company are being made only in accordance with authorizations of management and directors of the Company, and (C) provide reasonable assurance regarding prevention or timely detection of unauthorized acquisition, use or disposition of the Company’s assets that could have a material effect on its financial statements. The Company has disclosed, based on the most recent evaluation of its Chief Executive Officer chief executive officer and its Chief Financial Officer chief financial officer prior to the date of this Agreementhereof, to the Company’s auditors and the audit committee of the Company’s Board board of Directors directors (x) any significant deficiencies and material weaknesses in the design or operation of its internal controls over financial reporting that are would reasonably likely be expected to adversely affect the Company’s ability to record, process, summarize and report financial information and has identified for the Company’s auditors and audit committee of the Company’s board of directors any material weaknesses in internal control over financial reporting and (y) any fraud, whether or not material, that involves management or other employees who have a significant role in the Company’s internal control over financial reporting. The Company has made available prior to the date of this Agreement to Parent (I1) either materials relating to or a summary of any such disclosure of matters described in clauses (x) or (y) in the preceding sentence made by management of to the Company to its Company’s auditors and audit committee on or after the Applicable Date and prior to the date of this Agreement and (II2) any material communication on or after the Applicable Date and prior to the date of this Agreement made by management of or the Company or its Company’s auditors to the audit committee as required or contemplated by the listing standards of Nasdaq, the audit committee’s charter or professional standards of the Public Company Accounting Oversight Board. Since the Applicable Date and prior to the date of this Agreement, no No material complaints from any source regarding a material violation of accounting proceduresaccounting, internal accounting controls or auditing matters or compliance with Lawmatters, including and no concerns from Company Employees employees regarding questionable accountingaccounting or auditing matters, auditing or legal compliance matters have, to the Knowledge of the Company, have been received by the Company. The Company has made available to Parent a summary of all material complaints or concerns relating to other matters made through the Company’s whistleblower hot-line or equivalent system for receipt of employee concerns regarding possible violations of Law. No attorney representing the Company or any of its Subsidiaries, whether or not employed by the Company or any of its Subsidiaries, has reported evidence of a violation of securities Laws, breach of fiduciary duty or similar violation by the Company or any of its officers, directors, employees or agents to the Company’s chief legal officer, audit committee (or other committee designated for the purpose) of the board of directors or the board of directors pursuant to the rules adopted pursuant to Section 307 of the Xxxxxxxx-Xxxxx Act or any Company policy contemplating such reporting, including in instances not required by those rules.
(div) Neither the Company nor any of its Subsidiaries is a party to, nor has any commitment to become a party to, any joint venture, off-balance sheet partnership or any similar Contract (including any Contract or arrangement relating to any transaction or relationship between or among the Company, on the one hand, and any unconsolidated affiliate, including any structured finance, special purpose or limited purpose entity or Person, on the other hand), or any “off-balance sheet arrangements” (as defined in Item 303(a) of Regulation S-K promulgated by the SEC), where the result, purpose or intended effect of such Contract is to avoid disclosure of any material transaction involving, or material liabilities of, the Company in its published financial statements or other Company Reports.
(v) Each of the consolidated balance sheets included in or incorporated by reference into the Company Reports (including the related notes and schedules) fairly presents presents, or, in the case of Company Reports filed after the date of this Agreementhereof, will fairly present, in each case, in all material respects, present the consolidated financial position of the Company and its Subsidiaries, consolidated Subsidiaries as of the its date of such balance sheet, and each of the consolidated statements of operationsincome, cash flows and changes in stockholdersshareholders’ equity (deficit) and cash flows included in or incorporated by reference into the Company Reports (including any related notes and schedules) fairly presents, or, or in the case of Company Reports filed after the date of this Agreementhereof, will fairly present, in each case, in all material respects, present the results of operations, retained earnings (loss) and changes in financial position, as the case may be, of the Company and its Subsidiaries such companies for the periods set forth therein (subject, in the case of unaudited statements, to notes and normal year-end audit adjustments that are not or will not be material in amount or effect), in each case in accordance with GAAP U.S. generally accepted accounting principles (“GAAP”) consistently applied during the periods involved, except as may be noted therein or in the notes theretotherein.
(evi) Neither Except for (A) those liabilities that are reflected or reserved against on the unaudited interim consolidated balance sheet of the Company and its Subsidiaries as of March 31, 2012 (the “Most Recent Balance Sheet”), (B) liabilities incurred in the ordinary course of business consistent with past practice since the date of the Most Recent Balance Sheet, and (C) obligations incurred pursuant to this Agreement, neither the Company nor any of its Subsidiaries Subsidiary has incurred any Indebtednessliability of the type required to be set forth on a balance sheet prepared in accordance with GAAP that, individually or in the aggregate with other such liabilities, has had, or issued or sold any debt securities or rights would reasonably be expected to acquire any debt security of the Company or any of its Subsidiaries, the terms of which, or the terms of any instrument under which such Indebtedness, debt securities or rights were issued, requires the public listing of such Indebtedness, debt securities or rights or the maintenance by the Company or any of its Subsidiaries of registration under the Exchange Acthave a Material Adverse Effect.
Appears in 1 contract
Company Reports; Financial Statements. (a) The Company has filed delivered to the ------------------------------------- Parent each report or furnishedinformation statement prepared by it since December 31, 1999 (the "Audit Date"), (collectively, the "Company Reports"). The Company ---------- --------------- Reports include (i) the financial statements for Sandhill Information Technology (Beijing) Co. Ltd. ("Sandhill"), including a balance sheet dated December 31, -------- 1999 and an income statement for the period from inception through December 31, 1999, as applicableaudited by Xxxxxx Xxxxxxxx together with an unaudited balance sheet of Sandhill, on a timely basisdated as of August 31, all forms2000, statementsand an unaudited income statement for Sandhill for the eight months ended August 31, certifications2000 (collectively, reports the "Sandhill -------- Reports"), and documents required to be filed or furnished by it with or to (ii) certain financial information concerning revenues, expenses, ------- assets and liabilities of the SEC pursuant to Company, including unaudited consolidated and unconsolidated balance sheets of the Exchange Act or the Securities Act since Company as June 30, 2014 (the “Applicable Date”) (the forms, statements, reports 2000 and documents filed with or furnished to the SEC since the Applicable Date unconsolidated and those filed with or furnished to the SEC subsequent to the date of this Agreement, in each case as amended, the “Company Reports”). Each consolidated income statements of the Company Reportsfor the six months ended June 30, at the time of its filing or being furnished complied or2000, if not yet filed or furnished, will comply in all material respects with the applicable requirements of the Securities Act(collectively, the Exchange Act and the Xxxxxxxx-Xxxxx Act of 2002 (the “Xxxxxxxx-Xxxxx Act”"US Reports"), and any rules and regulations promulgated thereunder applicable to the Company Reports. As of their respective dates dates, (or, ---------- if amended prior to the date of this Agreementamended, as of the date of such amendment), amended) the Company Reports did not, and any Company Reports filed with or furnished to the SEC subsequent to the date of this Agreement will not, not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements made therein, in light of the circumstances in which they were made, not misleading.
(b) The Company is in compliance in all material respects with the applicable listing and corporate governance rules and regulations of Nasdaq.
(c) The Company maintains disclosure controls and procedures required by Rule 13a-15 or 15d-15 under the Exchange Act. Such disclosure controls and procedures are designed to ensure that information required to be disclosed by the Company in its filings with the SEC under the Exchange Act is recorded and reported on a timely basis to the individuals responsible for the preparation of the Company’s filings with the SEC under the Exchange Act. The Company maintains internal control over financial reporting (as defined in Rule 13a-15 or 15d-15, as applicable, under the Exchange Act). Such internal control over financial reporting is designed to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes US Reports were not prepared in accordance with GAAP. The Company has disclosedgenerally accepted accounting principles, based on the most recent evaluation of its Chief Executive Officer and its Chief Financial Officer prior to the date of this Agreement, to the Company’s auditors and the audit committee of the Company’s Board of Directors (x) any significant deficiencies and material weaknesses in the design or operation of its internal controls over financial reporting that are reasonably likely to adversely affect the Company’s ability to record, process, summarize and report financial information and (y) any fraud, whether or not material, that involves management or other employees who have a significant role in the Company’s internal control over financial reporting. The Company has made available prior to the date of this Agreement to Parent (I) either materials relating to or a summary of any but do provide disclosure of matters described in clauses (x) or (y) in the preceding sentence made by management all material items of revenue and expense and all material assets and liabilities of the Company to its auditors and audit committee on or after the Applicable Date and prior to the date of this Agreement and (II) any material communication on or after the Applicable Date and prior to the date of this Agreement made by management of the Company or its auditors to the audit committee as required by the listing standards of Nasdaq, the audit committee’s charter or professional standards of the Public Company Accounting Oversight Boardan unconsolidated basis. Since the Applicable Date and prior to the date of this Agreement, no complaints from any source regarding a material violation of accounting procedures, internal accounting controls or auditing matters or compliance with Law, including from Company Employees regarding questionable accounting, auditing or legal compliance matters have, to the Knowledge of the Company, been received by the Company.
(d) Each of the consolidated balance sheets included in or incorporated by reference into the Company Sandhill Reports (including the related notes and schedules) fairly presents orpresents, in the case of Company Reports filed after the date of this Agreement, or will fairly present, in each case, in all material respects, the consolidated financial position of the Company and its Subsidiaries, Sandhill as of the its date of such balance sheet, and each of the consolidated statements of operations, cash flows income and of changes in stockholders’ equity (deficit) financial position included in or incorporated by reference into the Company Sandhill Reports (including any related notes and schedules) fairly presents, or, in the case of Company Reports filed after the date of this Agreement, or will fairly present, in each case, in all material respects, the results of operations, retained earnings (loss) and changes in financial position, as the case may be, of the Company and its Subsidiaries Sandhill for the periods set forth therein (subject, in the case of unaudited statements, to notes and normal year-end audit adjustments that are not or will not be material in amount or effect), in each case in accordance with GAAP generally accepted accounting principles in the PRC consistently applied during the periods involved, except as may be noted therein or in the notes theretotherein.
(e) Neither the Company nor any of its Subsidiaries has incurred any Indebtedness, or issued or sold any debt securities or rights to acquire any debt security of the Company or any of its Subsidiaries, the terms of which, or the terms of any instrument under which such Indebtedness, debt securities or rights were issued, requires the public listing of such Indebtedness, debt securities or rights or the maintenance by the Company or any of its Subsidiaries of registration under the Exchange Act.
Appears in 1 contract
Samples: Merger Agreement (Sohu Com Inc)
Company Reports; Financial Statements. (ai) The Company has filed or furnished, as applicable, on a timely basis, and furnished all forms, statements, certifications, reports and documents required to be filed or furnished by it with or to the SEC pursuant to the Exchange Act or the Securities Act applicable securities statutes, regulations, policies and rules since June 30March 31, 2014 2005 (the “Applicable Audit Date”) (the collectively, such forms, statements, reports and documents filed with or furnished to the SEC since the Applicable Date Audit Date, and those filed with or furnished to the SEC subsequent to the date of this Agreement, in each case and as amended, the “Company Reports”). The Company Reports were prepared in all material respects in accordance with the applicable requirements of the Securities Act, the Exchange Act and the rules and regulations thereunder. Each of the Company Reports, at the time of its filing or being furnished complied orcomplied, or if not yet filed or furnished, will comply comply, in all material respects with the applicable requirements of the Securities Act, the Exchange Act and the Xxxxxxxx-Xxxxx Act of 2002 2002, as amended (the “Xxxxxxxx-Xxxxx ActXxxxx”), and any rules and regulations promulgated thereunder applicable to the Company Reports. As of their respective dates (orand, if amended prior to the date of this Agreementamended, as of the date of such amendment), ) the Company Reports did not, and any of the Company Reports filed with or furnished to the SEC subsequent to the date of this Agreement will not, contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements made therein, in light of the circumstances in which they were made, not misleading.
(bii) The Company is in compliance in all material respects with the applicable listing has established and corporate governance rules and regulations of Nasdaq.
(c) The Company maintains disclosure controls and procedures required by (as defined in Rule 13a-15 or 15d-15 under the Exchange Act). Such disclosure controls and procedures are designed to ensure provide reasonable assurance that material information relating to the Company, including its consolidated Subsidiaries, is made known to the Company’s principal executive officer and its principal financial officer by others within those entities, particularly during the periods in which the periodic reports required under the Exchange Act are being prepared. Such disclosure controls and procedures are effective in providing reasonable assurance of alerting in a timely manner the Company’s principal executive officer and principal financial officer to material information required to be disclosed by the Company included in its filings with the SEC under the Exchange Act is recorded and reported on a timely basis to the individuals responsible for the preparation of the Company’s filings with the SEC periodic and current reports required under the Exchange Act. The Company maintains and its Subsidiaries have established and maintained a system of internal control over financial reporting (as defined in Rule 13a-15 or 15d-15, as applicable, under the Exchange Act) (“internal controls”). Such internal control over financial reporting is controls are designed to provide reasonable assurance regarding the reliability of the Company’s financial reporting and the preparation of the Company’s financial statements for external purposes in accordance with GAAP. The Company has disclosed, based on the its most recent evaluation of its Chief Executive Officer and its Chief Financial Officer internal controls prior to the date of this Agreement, to the Company’s auditors and the audit committee of the Company’s Board board of Directors directors (x) any significant deficiencies and material weaknesses in the design or operation of its internal controls over financial reporting that which are reasonably likely to adversely affect the Company’s ability to record, process, summarize and report financial information and (y) any fraud, whether or not material, that involves management or other employees who have a significant role in the Company’s internal control controls over financial reporting. The Company has made available to Parent prior to the date of this Agreement to Parent (I) either materials relating to or a summary of any such disclosure of matters described in clauses (x) or (y) in the preceding sentence made by management of to the Company to its Company’s auditors and audit committee on or after the Applicable Date and prior to the date of this Agreement and (II) any material communication on or after the Applicable Date and prior to the date of this Agreement made by management of the Company or its auditors to the audit committee as required by the listing standards of Nasdaqsince December 31, the audit committee’s charter or professional standards of the Public Company Accounting Oversight Board. Since the Applicable Date and prior to the date of this Agreement, no complaints from any source regarding a material violation of accounting procedures, internal accounting controls or auditing matters or compliance with Law, including from Company Employees regarding questionable accounting, auditing or legal compliance matters have, to the Knowledge of the Company, been received by the Company2004.
(diii) Each of the consolidated balance sheets included in or incorporated by reference into the Company Reports (including the related notes and schedules) fairly presents orpresents, in the case of Company Reports filed after the date of this Agreement, or will fairly present, in each case, in all material respects, respects the consolidated financial position of the Company and its Subsidiaries, Subsidiaries as of the its date of such balance sheet, and each of the consolidated statements of operations, cash flows and of changes in stockholdersshareholders’ equity (deficit) included in or incorporated by reference into the Company Reports (including any related notes and schedules) fairly presents, or, in the case of Company Reports filed after the date of this Agreement, or will fairly present, in each case, in all material respects, respects the results of operations, retained earnings (loss) and changes in financial position, as the case may be, of the Company and its Subsidiaries for the periods set forth therein (subject, in the case of unaudited statements, to the absence of notes and normal year-end audit adjustments that are not or will not be material in amount or effectadjustments), in each case in accordance with GAAP U.S. generally accepted accounting principles (“GAAP”) consistently applied during the periods involved, except as may be noted therein or in the notes theretotherein.
(e) Neither the Company nor any of its Subsidiaries has incurred any Indebtedness, or issued or sold any debt securities or rights to acquire any debt security of the Company or any of its Subsidiaries, the terms of which, or the terms of any instrument under which such Indebtedness, debt securities or rights were issued, requires the public listing of such Indebtedness, debt securities or rights or the maintenance by the Company or any of its Subsidiaries of registration under the Exchange Act.
Appears in 1 contract
Samples: Merger Agreement (Equifax Inc)
Company Reports; Financial Statements. (ai) The Company has filed or furnished, as applicable, on a timely basis, furnished all forms, statements, certifications, reports and documents required to be filed or furnished by it with or to the SEC U.S. Securities and Exchange Commission (the “SEC”) pursuant to the Exchange Act or the Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder (the “Securities Act”) since June 30December 31, 2014 2011 (the “Applicable Date”) (the forms, statements, reports and documents filed with or furnished to the SEC since the Applicable Date and those filed with or furnished to the SEC subsequent prior to the date of this Agreementhereof, in each case as amendedincluding any amendments thereto, the “Company Reports”). Each of the Company Reports, at the time as of its filing respective date, or being furnished if amended, as of the date of such amendment, complied or, if not yet filed or furnished, will comply as to form in all material respects with the applicable requirements of the Securities ActAct and the rules and regulations promulgated thereunder, and with the Exchange Act and the Xxxxxxxx-Xxxxx Act of 2002 (the “Xxxxxxxx-Xxxxx Act”), and any rules and regulations promulgated thereunder applicable to thereunder, as the Company Reportscase may be, each as in effect on the date so filed. As of their respective dates (orits filing date, if amended prior to the date none of this Agreement, as of the date of such amendment), the Company Reports did not, and any Company Reports filed with or furnished to the SEC subsequent to the date of this Agreement will not, contain contained any untrue statement of a material fact or omit omitted to state a material fact required to be stated therein or necessary to make the statements made therein, in light of the circumstances in which they were made, not misleading, except to the extent that the information in such Company Report has been amended or superseded by a later Company Report filed prior to the date hereof. As of the date hereof, there are no material outstanding or unresolved comments received by the Company from the SEC with respect to any of the Company Reports.
(bii) The Company is in compliance in all material respects with the applicable listing and corporate governance rules and regulations of Nasdaqthe Nasdaq Stock Market (the “NASDAQ”).
(ciii) The Company maintains disclosure controls and procedures required by Rule 13a-15 or 15d-15 under the Exchange Act. Such disclosure controls and procedures are designed to ensure that information required to be disclosed by the Company is in its filings compliance in all material respects with the SEC under Xxxxxxxx-Xxxxx Act of 2002 (the Exchange Act is recorded “Xxxxxxxx-Xxxxx Act”) and reported on a timely basis to the individuals responsible for the preparation of the Company’s filings with the SEC under the Exchange Act. The Company maintains internal control over financial reporting (as defined in Rule 13a-15 or 15d-15, as applicable, under the Exchange Act). Such internal control over financial reporting is designed to provide reasonable assurance regarding the reliability of financial reporting any rules and the preparation of financial statements for external purposes in accordance with GAAP. The Company has disclosed, based on the most recent evaluation of its Chief Executive Officer and its Chief Financial Officer prior to the date of this Agreement, to the Company’s auditors and the audit committee of the Company’s Board of Directors (x) any significant deficiencies and material weaknesses in the design or operation of its internal controls over financial reporting that are reasonably likely to adversely affect the Company’s ability to record, process, summarize and report financial information and (y) any fraud, whether or not material, that involves management or other employees who have a significant role in the Company’s internal control over financial reporting. The Company has made available prior to the date of this Agreement to Parent (I) either materials relating to or a summary of any disclosure of matters described in clauses (x) or (y) in the preceding sentence made by management of the Company to its auditors and audit committee on or after the Applicable Date and prior to the date of this Agreement and (II) any material communication on or after the Applicable Date and prior to the date of this Agreement made by management of the Company or its auditors to the audit committee as required by the listing standards of Nasdaq, the audit committee’s charter or professional standards of the Public Company Accounting Oversight Board. Since the Applicable Date and prior to the date of this Agreement, no complaints from any source regarding a material violation of accounting procedures, internal accounting controls or auditing matters or compliance with Law, including from Company Employees regarding questionable accounting, auditing or legal compliance matters have, to the Knowledge of the Company, been received by the Companyregulations promulgated thereunder.
(div) Each of the consolidated balance sheets financial statements included in or incorporated by reference into the Company Reports filed since December 31, 2011 and prior to the date hereof (including the related notes and schedulesnotes) fairly presents or, in the case of Company Reports filed after the date of this Agreement, will fairly present, in each case, present in all material respects, respects the consolidated financial position of the Company and its Subsidiaries, consolidated Subsidiaries as of the their date of such balance sheet, and each of the consolidated statements results of operations, their operations and cash flows and changes in stockholders’ equity for the respective periods then ended (deficit) included in or incorporated by reference into the Company Reports (including any related notes and schedules) fairly presents, orexcept, in the case of Company Reports filed after the date of this Agreement, will fairly present, in each case, in all material respects, the results of operations, retained earnings (loss) and changes in any unaudited quarterly financial positionstatements, as the case may be, permitted by Form 10-Q of the Company SEC or other rules and its Subsidiaries for regulations of the periods set forth therein (subjectSEC, in the case of unaudited statements, and subject to notes and normal year-end or period-end audit adjustments that are not or will not be material in amount or effectadjustments), in each case in accordance with GAAP U.S. generally accepted accounting principles (“GAAP”) consistently applied during the periods involved, except as may be noted therein or in therein. No Subsidiary of the notes theretoCompany is subject to periodic reporting requirements of the Exchange Act.
(ev) The Company has established and maintains disclosure controls and procedures (as defined in Rule 13a-15 or 15d-15 of the Exchange Act) that are reasonably designed to ensure that material information relating to the Company, including its consolidated Subsidiaries, required to be included in reports filed under the Exchange Act (A) is recorded, processed, summarized and reported within the time periods specified in SEC rules and forms, and (B) is accumulated and communicated to the Company’s management, including the chief executive officer and chief financial officer, as appropriate to allow timely decisions regarding required disclosure.
(vi) The Company’s system of internal controls over financial reporting (as defined in Rules 13a-15 or 15d-15 under the Exchange Act) is reasonably sufficient in all material respects to provide reasonable assurance to the Company’s management and the Company Board regarding the reliability of financial reporting and the preparation of published financial statements for external purposes in accordance with GAAP.
(vii) Neither the Company nor any of its Subsidiaries has incurred entered into any Indebtedness, or issued or sold any debt securities or rights to acquire any debt security of Affiliate Transaction that has not been disclosed in the Company or any of its Subsidiaries, the terms of which, or the terms of any instrument under which such Indebtedness, debt securities or rights were issued, requires the public listing of such Indebtedness, debt securities or rights or the maintenance by the Company or any of its Subsidiaries of registration under the Exchange ActReports.
Appears in 1 contract
Samples: Merger Agreement (Golfsmith International Holdings Inc)
Company Reports; Financial Statements. (a) The Company has filed or furnished, as applicable, on a timely basis, all forms, statements, certifications, reports and documents Company Reports required to be filed or furnished by it with or to the SEC pursuant to the Exchange Act or the Securities Act since June 30, 2014 (the “Applicable Date”) (the forms, statements, reports and documents filed with or furnished to the SEC since the Applicable Date and those filed with or furnished to the SEC subsequent to the date of this Agreement, in each case as amended, the “Company Reports”). Each of the Company Reports, at the time of its filing or being furnished complied or, if not yet filed or furnished, will comply in all material respects with the applicable requirements of the Securities Act, the Exchange Act and the Xxxxxxxx-Xxxxx Act of 2002 (the “Xxxxxxxx-Xxxxx Act”), and any rules and regulations promulgated thereunder applicable to the Company ReportsSEC. As of their respective dates (filing date or, if amended prior to the date of this Agreementamended, as of the date of that last such amendment, each Company Report has complied in all material respects with all requirements of the Securities Act and the Exchange Act, as applicable, that are applicable to the Company (including based on its status as a smaller reporting company and an emerging growth company under Rule 12b-2 of the Exchange Act), . None of the Company Reports did notcontained when filed (and, in the case of registration statements and any Company Reports filed with or furnished to proxy statements, on the SEC subsequent to dates of effectiveness and the date dates of this Agreement will notmailing, contain respectively) any untrue statement of a material fact or omit omitted or omits or will omit, as the case may be, to state a material fact required to be stated or incorporated by reference therein or necessary to make the statements made therein, in the light of the circumstances in under which they were or are made, not misleading. As of the date hereof, (i) there are no outstanding or unresolved comments received from the SEC with respect to any of the Company Reports and (ii) to the Knowledge of the Company, none of the Company Reports is the subject of any ongoing SEC review or outstanding SEC investigation.
(b) The Company has made available (including via the SEC’s XXXXX system, as applicable) to Parent copies of all of the Company Financial Statements. The Company Financial Statements (i) comply as to form, as of the dates and for the periods referred to therein and as of their respective filing dates with the SEC, in all material respects with the applicable accounting requirements and the applicable published rules and regulations of the SEC with respect thereto (subject to any exceptions to such rules and regulations granted to the Company in light of its status as a smaller reporting company and an emerging growth company under Rule 12b-2 of the Exchange Act) and (ii) fairly present, in conformity in all material respects with GAAP as in effect on the date of such statement, in each case, consistently applied for the periods involved, the consolidated financial position of the Company at the respective dates thereof and the consolidated results of its operations and changes in cash flows for the respective periods indicated (subject, in the case of unaudited statements, to normal year-end audit adjustments consistent with GAAP).
(c) There are no liabilities of the Company or any of its Subsidiaries that would be required by GAAP to be reflected on a consolidated balance sheet of the Company and its Subsidiaries, other than liabilities (i) disclosed and provided for in the Company Balance Sheet or in the balance sheets included in the Company Reports, (ii) incurred in the ordinary course of business since December 31, 2022, (iii) incurred by or on behalf of the Company in connection with the transactions contemplated by this Agreement, or (iv) which would not, individually or in the aggregate, reasonably be likely to be material to the Company and its Subsidiaries, taken as a whole.
(d) The Company is in compliance in all material respects with (i) the applicable listing provisions of the Xxxxxxxx-Xxxxx Act of 2002, as amended, and corporate governance the rules and regulations of Nasdaq.
the SEC promulgated thereunder (ccollectively, the “Xxxxxxxx-Xxxxx Act”) The that are applicable to the Company maintains disclosure controls (including based on its status as a smaller reporting company and procedures an emerging growth company under Rule 12b-2 of the Exchange Act); and (ii) the rules and regulations of the NASDAQ Capital Market that are applicable to the Company (including based on its status as a smaller reporting company and an emerging growth company under Rule 12b-2 of the Exchange Act). With respect to each Company Report on Form 10-K or 10-Q, each of the principal executive officer and the principal financial officer of the Company has made all certifications required by Rule 13a-15 13a-14 or 15d-15 under the Exchange Act. Such disclosure controls and procedures are designed to ensure that information required to be disclosed by the Company in its filings with the SEC 15(d) under the Exchange Act is recorded and reported on a timely basis to the individuals responsible for the preparation Sections 302 and 906 of the Company’s filings Xxxxxxxx-Xxxxx Act with respect to such Company Reports and the SEC under the Exchange Act. statements in such certifications are true and accurate in all material respects.
(e) The Company maintains maintains, on behalf of itself and its Subsidiaries, a system of internal control over financial reporting (as such term is defined in Rule 13a-15 or 15d-15, as applicable, Rules 13a-15(f) and 15d-15(f) under the Exchange Act and applies to smaller reporting companies and emerging growth companies under Rule 12b-2 of the Exchange Act). Such internal control over financial reporting ) that is reasonably designed and implemented to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with GAAPGAAP including policies and procedures that
(i) require the maintenance of records that in reasonable detail accurately and fairly reflect the transactions and dispositions of the assets of the Company and its Subsidiaries, (ii) provide reasonable assurance that transactions are recorded as necessary to permit preparation of financial statements in accordance with GAAP and that receipts and expenditures of the Company and its Subsidiaries are being made only in accordance with appropriate authorizations of the Company’s management and the Company Board of Directors and (iii) provide assurance regarding prevention or timely detection of unauthorized acquisition, use, or disposition of the assets of the Company and its Subsidiaries. No material weaknesses or significant deficiencies exist with respect to the internal control over financial reporting of the Company that have not been disclosed in the Company Reports as filed with or furnished to the SEC prior to the date of this Agreement. The Company has disclosed, based on the its most recent evaluation of its Chief Executive Officer and its Chief Financial Officer prior to the date of this Agreementevaluation, to the Company’s outside auditors and the audit committee of the Company’s Company Board of Directors Directors, (xi) any all significant deficiencies and material weaknesses in the design or and operation of its internal controls control over financial reporting that which are reasonably likely to adversely affect in any material respect the Company’s ability to record, process, summarize and report financial information data and (yii) any fraud, whether or not material, that involves management or other employees who have a significant role in the Company’s internal control over financial reporting. .
(f) The Company has made available prior established and maintains disclosure controls and procedures (as such term is defined in paragraph (e) of Rule 13a-15 under the Exchange Act) as required by Rule 13a-15 under the Exchange Act, reasonably designed and implemented to ensure that information required to be disclosed by the date of this Agreement to Parent (I) either materials relating to or a summary of any disclosure of matters described in clauses (x) or (y) Company in the preceding sentence made reports that it files and submits under the Exchange Act is recorded, processed, summarized and reported within the time periods specified in the SEC’s rules and forms, including that information required to be disclosed by the Company in the reports that it files and submits under the Exchange Act is accumulated and communicated to management of the Company, as appropriate, to allow timely decisions regarding required disclosure.
(g) Since December 31, 2021, (i) neither the Company to nor any of its auditors and audit committee on or after the Applicable Date and prior Subsidiaries nor, to the date of this Agreement and (II) Company’s Knowledge, any material communication on director or after the Applicable Date and prior to the date of this Agreement made by management officer of the Company or any of its auditors to Subsidiaries has received any complaint, allegation, assertion, or claim that the audit committee as required Company or any of its Subsidiaries has engaged in any material improper or illegal accounting or auditing practices or maintains improper or inadequate internal accounting controls, and (ii) no attorney representing the Company or any of its Subsidiaries, whether or not employed by the listing standards Company or any of Nasdaqits Subsidiaries, the audit committee’s charter or professional standards has reported evidence of the Public Company Accounting Oversight Board. Since the Applicable Date and prior to the date of this Agreement, no complaints from any source regarding a material violation of accounting proceduressecurities Laws, internal accounting controls breach of fiduciary duty or auditing matters similar violation by the Company or compliance with Lawany of its Subsidiaries or their respective officers, including from Company Employees regarding questionable accountingdirectors, auditing employees or legal compliance matters have, agents to the Knowledge Company Board of Directors or any committee thereof or to any director or officer of the Company, been received by Company pursuant to the Companyrules of the SEC adopted under Section 307 of the Xxxxxxxx-Xxxxx Act.
(d) Each of the consolidated balance sheets included in or incorporated by reference into the Company Reports (including the related notes and schedules) fairly presents or, in the case of Company Reports filed after the date of this Agreement, will fairly present, in each case, in all material respects, the consolidated financial position of the Company and its Subsidiaries, as of the date of such balance sheet, and each of the consolidated statements of operations, cash flows and changes in stockholders’ equity (deficit) included in or incorporated by reference into the Company Reports (including any related notes and schedules) fairly presents, or, in the case of Company Reports filed after the date of this Agreement, will fairly present, in each case, in all material respects, the results of operations, retained earnings (loss) and changes in financial position, as the case may be, of the Company and its Subsidiaries for the periods set forth therein (subject, in the case of unaudited statements, to notes and normal year-end audit adjustments that are not or will not be material in amount or effect), in each case in accordance with GAAP consistently applied during the periods involved, except as may be noted therein or in the notes thereto.
(eh) Neither the Company nor any of its Subsidiaries has incurred is a party to, nor do they have any Indebtednessobligation or other commitment to become a party to, or issued or sold any debt securities or rights to acquire any debt security “off-balance sheet arrangements” (as defined in Item 303(a) of the Company or any of its Subsidiaries, the terms of which, or the terms of any instrument under which such Indebtedness, debt securities or rights were issued, requires the public listing of such Indebtedness, debt securities or rights or the maintenance by the Company or any of its Subsidiaries of registration Regulation S-K under the Exchange Act) where the result, purpose or intended effect of such contract is to avoid disclosure of any material transaction involving, or material liabilities of, the Company and its Subsidiaries in the Company Reports.
Appears in 1 contract
Samples: Merger Agreement (Vericity, Inc.)
Company Reports; Financial Statements. (a) The Since January 1, 2011 (the “Applicable Date”), the Company has filed or furnished, as applicable, on a timely basis, basis (taking into account all applicable grace periods) all forms, statements, certifications, reports reports, statements and documents required to be filed or furnished by it with or to the SEC pursuant to the Securities Act and the Exchange Act or the Securities Act since June 30, 2014 (the “Applicable Date”) (the forms, statements, reports and documents filed with or furnished to the SEC since the Applicable Date and those filed with or furnished to the SEC subsequent to the date of this AgreementDate, in each case as amendedincluding any amendments thereto, the “Company SEC Reports”). Each of the Company SEC Reports, at the time of its filing or being furnished complied (or, if not yet filed or furnishedamended, will comply as of the time of such amendment), complied as to form in all material respects with the applicable requirements of the Securities Act, the Exchange Act and the Xxxxxxxx-Xxxxx Act of 2002 (the “Xxxxxxxx-Xxxxx Act”), ) and any rules and regulations promulgated thereunder applicable to the Company SEC Reports. As of their respective dates (or, if amended prior to the date of this Agreementamended, as of the date of such amendment), the (x) each Company Reports did not, and any Company Reports SEC Report filed with or furnished pursuant to the SEC subsequent to the date of this Agreement will not, Exchange Act did not contain any untrue statement of a material fact or omit to state a any material fact required to be stated therein or necessary to make the statements made therein, in light of the circumstances in which they were made, not misleading and (y) each Company SEC Report filed pursuant to the Securities Act did not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading.
(b) The Company is in compliance in all material respects with the applicable listing and corporate governance rules and regulations of Nasdaq.
(c) The Company maintains disclosure controls and procedures required by Rule 13a-15 or 15d-15 under the Exchange Act. Such disclosure controls and procedures are reasonably designed to ensure that information required to be disclosed by the Company in its filings with the SEC under the Exchange Act is recorded and reported on a timely basis to the individuals responsible for the preparation of the Company’s filings with the Company SEC under the Exchange ActReports. The Company maintains a system of “internal control over financial reporting reporting” (as defined in Rule 13a-15 or 15d-15, as applicable, under the Exchange Act). Such internal control over financial reporting is designed to provide effective in providing reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with United States generally accepted accounting principles (“GAAP”). The Since the Applicable Date, the Company has disclosednot received any written notification of any (i) “significant deficiency” or (ii) “material weakness” (as defined in Rule 13a-15 or 15d-15, based on as applicable, under the most recent evaluation of its Chief Executive Officer and its Chief Financial Officer prior to the date of this Agreement, to the Company’s auditors and the audit committee of the Company’s Board of Directors (xExchange Act) any significant deficiencies and material weaknesses in the design or operation of its internal controls over financial reporting that are reasonably likely to adversely affect the Company’s ability to record, process, summarize and report financial information and (y) any fraud, whether or not material, that involves management or other employees who have a significant role in the Company’s internal control controls over financial reporting. .
(c) The Company has made available prior to is in compliance in all material respects with the date of this Agreement to Parent (I) either materials relating to or a summary of any disclosure of matters described in clauses (x) or (y) in the preceding sentence made by management applicable provisions of the Company to its auditors Xxxxxxxx-Xxxxx Act and audit committee on or after the Applicable Date applicable listing and prior to the date of this Agreement corporate governance rules and (II) any material communication on or after the Applicable Date and prior to the date of this Agreement made by management regulations of the Company or its auditors to the audit committee as required by the listing standards of Nasdaq, the audit committee’s charter or professional standards of the Public Company Accounting Oversight Board. Since the Applicable Date and prior to the date of this Agreement, no complaints from any source regarding a material violation of accounting procedures, internal accounting controls or auditing matters or compliance with Law, including from Company Employees regarding questionable accounting, auditing or legal compliance matters have, to the Knowledge of the Company, been received by the CompanyNYSE.
(d) Each of the consolidated balance sheets included in or incorporated by reference into the Company SEC Reports (including the related notes and schedules) fairly presents or, in the case of Company Reports filed after the date of this Agreement, will fairly present, in each case, in all material respects, respects the consolidated financial position of the Company and its Subsidiaries, consolidated Subsidiaries as of the its date of such balance sheet, and each of the consolidated statements of operationsincome, equity and cash flows and changes in stockholders’ equity (deficit) included in or incorporated by reference into the Company SEC Reports (including any related notes and schedules) (such balance sheets and statements of income, equity and cash flows, including any related notes and schedules, collectively, the “Company Financial Statements”) fairly presents, or, in the case of Company Reports filed after the date of this Agreement, will fairly present, in each case, presents in all material respects, respects the consolidated results of operations, retained earnings (loss) operations and changes in financial positioncash flows, as the case may be, of the Company and its consolidated Subsidiaries for the periods set forth therein then ended (subject, in the case of unaudited statements, to the absence of notes and normal year-end audit adjustments that are not or will not be material in amount or effectadjustments), in each case case, in accordance with GAAP consistently applied during the periods involvedGAAP, except as may be noted therein or in the notes thereto.
(e) No Subsidiary of the Company is, or has at any time since the Applicable Date been, subject to the reporting requirements of Section 12(a) and 15(d) of the Exchange Act. As of the date hereof, there are no outstanding or unresolved comments from the SEC staff with respect to any of the Company SEC Reports, and, to the Knowledge of the Company, none of the Company SEC Reports is the subject of ongoing SEC review, outstanding SEC comment or outstanding SEC investigation.
(f) Neither the Company nor any of its Subsidiaries has incurred is a party to any Indebtednessjoint venture, off-balance sheet partnership or issued any similar contract or sold arrangement (including any debt securities contract relating to any transaction or rights to acquire any debt security of relationship between or among the Company or and any of its Subsidiaries, on the terms one hand, and any unconsolidated Affiliate, including any structured finance, special purpose or limited purpose entity or person, on the other hand or any “off-balance sheet arrangements” (as defined in Item 303(a) of whichRegulation S K of the SEC)), where the result, purpose or effect of such arrangement is to avoid disclosure of any material transaction involving, or the terms of any instrument under which such Indebtednessmaterial liabilities of, debt securities or rights were issued, requires the public listing of such Indebtedness, debt securities or rights or the maintenance by the Company or any of its Subsidiaries in the Company’s or such Subsidiary’s audited financial statements or other Company SEC Reports.
(g) As of registration the date hereof, there are no transactions, or series of related transactions, agreements, arrangements or understandings, nor are there any currently proposed transactions, or series of related transactions, that would be required to be disclosed under Item 404 of Regulation S-K promulgated under the Exchange ActSecurities Act that have not been disclosed in the Company SEC Reports.
Appears in 1 contract
Samples: Merger Agreement (Heinz H J Co)
Company Reports; Financial Statements. (ai) The Company has filed or furnished, as applicable, on a timely basis, basis all forms, statements, certifications, reports and documents required to be filed or furnished by it with or to the SEC pursuant to the Exchange Act or the Securities Act since June 30on or after December 31, 2014 2008 (the “Applicable Date”) (the forms, statements, certifications, reports and documents filed with or furnished to the SEC since the Applicable Date and those filed with or furnished to the SEC subsequent to the date of this Agreementhereof, in each case as amendedincluding any amendments thereto, the “Company Reports”). Each of the Company Reports, at the time of its filing or being furnished Reports complied or, if not yet filed or furnished, will comply in all material respects with the applicable requirements of the Securities Act, the Exchange Act and the XxxxxxxxSxxxxxxx-Xxxxx Act of 2002 (the “XxxxxxxxSxxxxxxx-Xxxxx Act”), and any rules and regulations promulgated thereunder applicable to the Company Reports. As of their respective dates (or, if amended prior to the date of this Agreementhereof, as of the date of such amendment), the Company Reports did not, and any Company Reports filed with or furnished to with the SEC subsequent to the date of this Agreement hereof will not, contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements made therein, in light of the circumstances in which they were made, not misleading. As of the date hereof, there are no material outstanding or unresolved comments received from the SEC with respect to any of the Company Reports.
(bii) The Since the Applicable Date, subject to any applicable grace periods, the Company has been and is in compliance in all material respects with the applicable provisions of (A) the Sxxxxxxx-Xxxxx Act and (B) the applicable listing and corporate governance rules and regulations of Nasdaqthe NYSE.
(ciii) Each of the consolidated balance sheets included in or incorporated by reference into the Company Reports as amended prior to the date hereof (including the related notes and schedules) fairly presents in all material respects, or, in the case of Company Reports filed after the date hereof, will fairly present in all material respects, the consolidated financial position of the Company and its consolidated Subsidiaries as of its date and the consolidated statements of operations, stockholders’ equity and comprehensive income and cash flows included in or incorporated by reference into the Company Reports as amended prior to the date hereof (including any related notes and schedules) fairly presents in all material respects, or in the case of Company Reports filed after the date hereof, will fairly present in all material respects, the results of operations and cash flows, as the case may be, of the Company and its consolidated Subsidiaries for the periods set forth therein (subject, in the case of unaudited statements, to notes and year-end adjustments), in each case in accordance with U.S. generally accepted accounting principles (“GAAP”), except as may be noted therein.
(iv) The Company maintains disclosure controls and procedures required by Rule 13a-15 or 15d-15 under the Exchange Act. Such disclosure controls and procedures are designed effective to ensure that material information required to be disclosed by the Company in its filings with the SEC under the Exchange Act is recorded and reported on a timely basis to the individuals responsible for the preparation of the Company’s filings with the SEC under the Exchange Actand other public disclosure documents. The Company maintains internal control over financial reporting (as defined in Rule 13a-15 or 15d-15, as applicable, under the Exchange Act). Such internal control over financial reporting is designed to provide effective in providing reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with GAAP. The Except as is not, individually or in the aggregate, reasonably likely to have a Company Material Adverse Effect, the Company has disclosed, based on the most recent evaluation of its Chief Executive Officer chief executive officer and its Chief Financial Officer chief financial officer prior to the date of this Agreement, to the Company’s auditors and the audit committee Audit Committee of the Company’s Board of Directors of the Company (xA) any significant deficiencies and material weaknesses in the design or operation of its internal controls over financial reporting that (as defined in Rule 13a-15(f) of the Exchange Act) which are reasonably likely to adversely affect the Company’s ability to record, process, summarize and report financial information and (yB) any fraudfraud or, whether or not materialto the Knowledge of the Company, any allegation of fraud that involves management or other employees who have a significant role in the Company’s internal control controls over financial reporting. The Company has made available prior to the date of this Agreement to Parent (I) either materials relating to or a summary of any disclosure of matters described in clauses (x) or (y) in the preceding sentence made by management of the Company to its auditors and audit committee on or after the Applicable Date and prior to the date of this Agreement and (II) any material communication on or after the Applicable Date and prior to the date of this Agreement made by management of the Company or its auditors to the audit committee as required by the listing standards of Nasdaq, the audit committee’s charter or professional standards of the Public Company Accounting Oversight Board. Since the Applicable Date and prior to the date of this Agreement, no complaints from any source regarding a material violation of accounting procedures, internal accounting controls or auditing matters or compliance with Law, including from Company Employees regarding questionable accounting, auditing or legal compliance matters have, to the Knowledge of the Company, been received by the Company.
(d) Each of the consolidated balance sheets included in or incorporated by reference into the Company Reports (including the related notes and schedules) fairly presents or, in the case of Company Reports filed after the date of this Agreement, will fairly present, in each case, in all material respects, the consolidated financial position of the Company and its Subsidiaries, as of the date of such balance sheet, and each of the consolidated statements of operations, cash flows and changes in stockholders’ equity (deficit) included in or incorporated by reference into the Company Reports (including any related notes and schedules) fairly presents, or, in the case of Company Reports filed after the date of this Agreement, will fairly present, in each case, in all material respects, the results of operations, retained earnings (loss) and changes in financial position, as the case may be, of the Company and its Subsidiaries for the periods set forth therein (subject, in the case of unaudited statements, to notes and normal year-end audit adjustments that are not or will not be material in amount or effect), in each case in accordance with GAAP consistently applied during the periods involved, except as may be noted therein or in the notes thereto.
(e) Neither the Company nor any of its Subsidiaries has incurred any Indebtedness, or issued or sold any debt securities or rights to acquire any debt security of the Company or any of its Subsidiaries, the terms of which, or the terms of any instrument under which such Indebtedness, debt securities or rights were issued, requires the public listing of such Indebtedness, debt securities or rights or the maintenance by the Company or any of its Subsidiaries of registration under the Exchange Act.
Appears in 1 contract
Samples: Merger Agreement (Commscope Inc)
Company Reports; Financial Statements. (ai) The Since January 1, 2011 (the “Applicable Date”), the Company has filed or furnished, as applicable, on a timely basis, basis (taking into account all applicable grace periods) all forms, statements, certifications, reports reports, statements and documents required to be filed or furnished by it with or to the SEC pursuant to the Securities Act and the Exchange Act or the Securities Act since June 30, 2014 (the “Applicable Date”) (the such forms, statementscertifications, reports reports, statements and documents filed with or furnished to the SEC since the Applicable Date and those filed with or furnished to the SEC subsequent to the date of this Agreement, in each case as amendedincluding any amendments thereto, the “Company SEC Reports”). Each of the Company ReportsSEC Reports (including any financial statements or other schedules included therein), at the time of its filing or being furnished furnished, complied or, if not yet filed or furnished, will comply in all material respects with the applicable requirements of the Securities Act, the Exchange Act and the XxxxxxxxSxxxxxxx-Xxxxx Act of 2002 (the “XxxxxxxxSxxxxxxx-Xxxxx Act”), ) and any rules and regulations promulgated thereunder applicable to the Company SEC Reports. As of their respective dates (or, if amended prior to the date of this Agreement, as of the date of such amendment), the Company SEC Reports did not, and any Company SEC Reports filed with or furnished to the SEC subsequent to the date of this Agreement will not, contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements made therein, in light of the circumstances in which they were made, not misleading. Notwithstanding the foregoing, the Company makes no representation or warranty with respect to statements made or incorporated by reference therein based on information supplied in writing by or on behalf of Parent, Merger Sub, or any of their respective Affiliates specifically for inclusion or incorporation by reference in the Proxy Statement or any Offer Document. As of the date hereof, there are no material outstanding or unresolved comments received from the SEC with respect to any of the Company SEC Reports.
(b) The Company is in compliance in all material respects with the applicable listing and corporate governance rules and regulations of Nasdaq.
(cii) The Company maintains disclosure controls and procedures required by Rule 13a-15 or 15d-15 under the Exchange Act. Such disclosure controls and procedures are reasonably designed to ensure that material information required to be disclosed by the Company in its filings with the SEC under the Exchange Act is recorded and reported on a timely basis to the individuals responsible for the preparation of the Company’s filings with the Company SEC under the Exchange ActReports. The Company maintains internal control over financial reporting (as defined in Rule 13a-15 or 15d-15, as applicable, under the Exchange Act). Such internal control over financial reporting is designed to provide effective in providing reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with United States generally accepted accounting principles (“GAAP. ”).
(iii) The Company has disclosed, based on the most recent evaluation of by its Chief Executive Officer and its Chief Financial Officer prior to the date of this Agreementhereof, to the Company’s auditors and the audit committee of the Company’s Board of Directors of the Company (xA) any significant deficiencies and material weaknesses in the design or operation of its internal controls control over financial reporting that are reasonably likely to (as defined in Rule 13a-15(f) of the Exchange Act) which would adversely affect in any material respect the Company’s ability to record, process, summarize and report financial information and (yB) any fraud, whether or not material, fraud that involves management or other employees who have a significant role in the Company’s internal control over financial reporting. The Company has made available prior to the date of this Agreement to Parent (I) either materials relating to or a summary of any disclosure of matters described in clauses (x) or (y) in the preceding sentence made by management of the Company to its auditors and audit committee on or after the Applicable Date and prior to the date of this Agreement and (II) any material communication on or after the Applicable Date and prior to the date of this Agreement made by management of the Company or its auditors to the audit committee as required by the listing standards of Nasdaq, the audit committee’s charter or professional standards of the Public Company Accounting Oversight Board. Since the Applicable Date and prior to the date of this Agreement, no complaints from any source regarding a material violation of accounting procedures, internal accounting controls or auditing matters or compliance with Law, including from Company Employees regarding questionable accounting, auditing or legal compliance matters have, to the Knowledge of the Company, been received by the Company.
(div) The Company is in compliance in all material respects with the applicable provisions of the Sxxxxxxx-Xxxxx Act and the applicable listing and corporate governance rules and regulations of the NYSE.
(v) Each of the consolidated balance sheets included in or incorporated by reference into the Company SEC Reports (including the related notes and schedules) fairly presents in all material respects, or, in the case of Company SEC Reports filed after the date of this Agreement, will fairly present, in each case, present in all material respects, the consolidated financial position of the Company and its Subsidiaries, consolidated Subsidiaries as of the its date of such balance sheet, and each of the consolidated statements of operations, changes in equity and comprehensive income (loss) and cash flows and changes in stockholders’ equity (deficit) included in or incorporated by reference into the Company SEC Reports (including any related notes and schedules) (such balance sheets, statements of operations, changes in equity and comprehensive income (loss) and cash flows, including any related notes and schedules, collectively, the “Company Financial Statements”) fairly presentspresents in all material respects, or, or in the case of Company SEC Reports filed after the date of this Agreement, will fairly present, in each case, present in all material respects, the results of operations, retained earnings changes in equity and comprehensive income (loss) and changes in financial positioncash flows, as the case may be, of the Company and its consolidated Subsidiaries for the periods set forth therein (subject, in the case of unaudited statements, to notes and normal year-end audit adjustments that are not or will not be material in amount or effectadjustments), in each case case, in accordance with GAAP consistently applied during the periods involvedGAAP, except as may be noted therein or in the notes thereto.
(e) Neither the Company nor any of its Subsidiaries has incurred any Indebtedness, or issued or sold any debt securities or rights to acquire any debt security of the Company or any of its Subsidiaries, the terms of which, or the terms of any instrument under which such Indebtedness, debt securities or rights were issued, requires the public listing of such Indebtedness, debt securities or rights or the maintenance by the Company or any of its Subsidiaries of registration under the Exchange Act.
Appears in 1 contract
Samples: Merger Agreement (Jones Group Inc)
Company Reports; Financial Statements. (a) The Company has furnished or filed or furnishedall registration statements, as applicablereports, on a timely basisschedules, all forms, statements, certifications, reports statements and other documents (including exhibits and other information incorporated therein) required to be furnished or filed or furnished by it the Company with or to the SEC pursuant to the Exchange Act or the Securities Act since June 30January 1, 2014 (the “Applicable Date”) (the formssuch documents, together will all exhibits, financial statements, reports including the Company Financial Statements, and documents filed with or furnished schedules and amendments thereto and all information incorporated therein by reference, being collectively referred to the SEC since the Applicable Date and those filed with or furnished to the SEC subsequent to the date of this Agreement, in each case as amended, the “Company Reports”). Each of the Company Reports, Report (i) at the time of its filing furnished or being furnished filed, complied or, if not yet filed or furnished, will comply in all material respects with the applicable requirements of the Exchange Act or the Securities Act, as the Exchange Act case may be, and the Xxxxxxxx-Xxxxx Act of 2002 (the “Xxxxxxxx-Xxxxx Act”), and any rules and regulations of the SEC promulgated thereunder applicable to such Company Report and (ii) did not at the Company Reports. As of their respective dates time it was filed (or, or if amended prior to or superseded by a filing or amendment, then at the date of this Agreement, as of the date time of such filing or amendment), the Company Reports did not, and any Company Reports filed with or furnished to the SEC subsequent to the date of this Agreement will not, ) contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements made therein, in light of the circumstances in under which they were made, not misleading. The Company has made available to Parent true, correct and complete copies of all written correspondence between the SEC and the Company and any of the Company Subsidiaries occurring since January 1, 2014 and prior to the date of this Agreement. As of the date of this Agreement, there are no outstanding comments received by the Company from, or unresolved issues raised by the SEC with the Company, with respect to any of the Company Reports, and to the Knowledge of the Company, none of the Company Reports is the subject of ongoing SEC review, outstanding SEC comment or outstanding SEC investigation. None of the Company’s Subsidiaries is required to file periodic reports with the SEC pursuant to pursuant to Section 13 or 15(d) of the Exchange Act. Each of the consolidated financial statements of the Company included in the Company Reports (the “Company Financial Statements”) complied at the time it was filed as to form in all material respects with applicable accounting requirements and the published rules and regulations of the SEC with respect thereto, was prepared in accordance with United States generally accepted accounting principles (“GAAP”) (except, in the case of unaudited pro forma or quarterly financial statements, as permitted by Forms 10-Q and 8-K of the SEC) applied on a consistent basis during the periods and as of the dates involved (except as may be indicated in the notes thereto) and fairly present in all material respects, in accordance with GAAP, the consolidated financial position of the Company and the Company’s consolidated Subsidiaries as of the dates thereof and the consolidated results of their operations and cash flows and changes in stockholders equity, as applicable, for the periods shown (subject, in the case of unaudited pro forma or quarterly financial statements, to normal year-end audit adjustments, none of which is expected to be material). Except as disclosed in the Company Reports, there are no unconsolidated Subsidiaries of the Company or any off-balance sheet arrangements of the type required to be disclosed pursuant to Item 303(a)(4) of Regulation S-K promulgated by the SEC.
(b) Except as otherwise set forth on Section 3.06(b) of the Company Disclosure Letter, neither the Company nor any Company Subsidiary has any liability of any nature that is required by GAAP to be set forth on a consolidated balance sheet (including the notes thereto) of the Company and the Company Subsidiaries, except liabilities (i) reflected or reserved against in the most recent balance sheet (including the notes thereto) of the Company and the Company Subsidiaries included in the most recent Company Report filed prior to the date hereof, (ii) incurred in the ordinary course of business consistent with past practice since the date of such balance sheet or (iii) incurred in connection with the Merger or any other transaction or agreement contemplated by this Agreement. Section 3.06(b) of the Company Disclosure Letter contains a true, correct and complete list of each item of Indebtedness involving an amount greater than $75,000 or that is otherwise material to the Company as a whole as of the date of this Agreement, other than Indebtedness reflected in such balance sheet.
(c) Since January 1, 2014, the chief executive officer and chief financial officer of the Company have made all certifications (without qualification or exceptions to the matters certified) required by the Sxxxxxxx-Xxxxx Act of 2002, as amended (the “Sxxxxxxx-Xxxxx Act”), and the statements contained in any such certifications are complete and correct. The Company maintains “disclosure controls and procedures” (as defined in Rules 13a-15(e) and 15d-15(e) under the Exchange Act) as required by Rule 13a-15 under the Exchange Act. The Company has established and maintains disclosure controls and procedures (as such term is defined in Rule 13a-15(e) of the Exchange Act) to ensure that material information relating to the Company and the Company Subsidiaries required to be disclosed in the Company Reports filed or submitted under the Exchange Act is made known to the Company’s principal executive officer and its principal financial officer by others within those entities. Since January 1, 2014, subject to any applicable grace periods, the Company has been and is in compliance in all material respects with (i) all applicable provisions of the Sxxxxxxx-Xxxxx Act and (ii) the applicable listing and corporate governance rules and regulations of Nasdaq.
(c) the NYSE MKT. The Company maintains disclosure controls and procedures required by Rule 13a-15 or 15d-15 under the Exchange Act. Such disclosure controls and procedures are designed to ensure that information required to be disclosed by the Company in its filings with the SEC under the Exchange Act is recorded and reported on a timely basis to the individuals responsible for the preparation of the Company’s filings with the SEC under the Exchange Act. The Company maintains principal executive officer and principal accounting or financial officer (or each former principal executive officer and principal accounting or financial officer) have disclosed based on their most recent evaluation of internal control over financial reporting (as defined in Rule 13a-15 or 15d-15, as applicable, under the Exchange Act). Such internal control over financial reporting is designed to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with GAAP. The Company has disclosed, based on the most recent evaluation of its Chief Executive Officer and its Chief Financial Officer prior to the date of this Agreementreporting, to the Company’s auditors and the audit committee of the Company’s Company Board of Directors (xi) any all significant deficiencies and material weaknesses in the design or operation of its internal controls control over financial reporting that are reasonably likely to adversely affect the Company’s ability to record, process, summarize and report financial information and (yii) any fraud, whether or not material, fraud that involves management or other employees who have a significant role in the Company’s internal control over financial reporting. The Company has made available prior to the date of this Agreement to Parent (I) either materials relating to or a summary of any disclosure of matters described in clauses (x) or (y) in the preceding sentence all such disclosures made by management of to the Company to its Company’s auditors and audit committee on or after the Applicable Date and prior to the date since January 1, 2014. As of this Agreement and (II) any material communication on or after the Applicable Date and prior to the date of this Agreement made by management of the Company or its auditors to the audit committee as required by the listing standards of Nasdaq, the audit committee’s charter or professional standards of the Public Company Accounting Oversight Board. Since the Applicable Date and prior to the date of this Agreement, no complaints from any source regarding a material violation weaknesses in the design or operation of accounting procedures, the Company’s internal accounting controls or auditing matters or compliance with Law, including from control over financial reporting have been identified by the Company Employees regarding questionable accounting, auditing or legal compliance matters haveor, to the Knowledge of the Company, been received by the Company.
(d) Each ’s independent registered public accounting firm. As of the consolidated balance sheets included in or incorporated by reference into the Company Reports (including the related notes and schedules) fairly presents or, in the case of Company Reports filed after the date of this Agreement, will fairly present, in each case, in all material respects, there is no reason to believe that the consolidated financial position of the Company Company’s auditors and its Subsidiaries, as of the date of such balance sheet, chief executive officer and each of the consolidated statements of operations, cash flows and changes in stockholders’ equity (deficit) included in or incorporated by reference into the Company Reports (including any related notes and schedules) fairly presents, or, in the case of Company Reports filed after the date of this Agreement, will fairly present, in each case, in all material respects, the results of operations, retained earnings (loss) and changes in chief financial position, as the case may be, of the Company and its Subsidiaries for the periods set forth therein (subject, in the case of unaudited statements, to notes and normal year-end audit adjustments that are not or officer will not be material in amount or effect), in each case in accordance with GAAP consistently applied during able to give the periods involved, except as may be noted therein or in certifications and attestations required pursuant to the notes thereto.
(e) Neither the Company nor any of its Subsidiaries has incurred any Indebtedness, or issued or sold any debt securities or rights rules and regulations adopted pursuant to acquire any debt security Section 404 of the Company or any Sxxxxxxx-Xxxxx Act in connection with the filing of its Subsidiariesthe Company’s Quarterly Report on Form 10-Q for the quarter ending September 30, the terms of which, or the terms of any instrument under which such Indebtedness, debt securities or rights were issued, requires the public listing of such Indebtedness, debt securities or rights or the maintenance by the Company or any of its Subsidiaries of registration under the Exchange Act2016.
Appears in 1 contract
Samples: Merger Agreement (Gas Natural Inc.)
Company Reports; Financial Statements. (a) The Since January 1, 2011, the Company has timely filed or furnished, as applicable, on a timely basis, all forms, statements, certifications, reports and documents Company Reports required to be filed with the SEC on or furnished by it with or prior to the SEC pursuant date hereof. No Subsidiary of the Company is subject to the reporting requirements of Section 13(a) or 15(d) of the Exchange Act or the Securities Act since June 30, 2014 (the “Applicable Date”) (the forms, statements, reports and documents filed with or furnished to the SEC since the Applicable Date and those filed with or furnished to the SEC subsequent to the date of this Agreement, in each case as amended, the “Company Reports”). Each no Subsidiary of the Company Reportsis required to file or furnish any report, at statement, schedule, form or other document with, or make any other filing with, or furnish any other material to, the time of its filing or being furnished SEC. Each Company Report has complied or, if not yet filed or furnished, will comply in all material respects with the applicable requirements of the Securities Act, the Exchange Act and the Xxxxxxxx-Xxxxx Act of 2002 (the “Xxxxxxxx-Xxxxx Act”), and any rules and regulations promulgated thereunder applicable to thereunder, or the Company Reports. As of their respective dates (orExchange Act, if amended prior to and the rules and regulations promulgated thereunder, as applicable, each as in effect on the date so filed. None of this Agreement, as of the date of such amendment), the Company Reports did not(including any financial statements or schedules included or incorporated by reference therein) contained when filed (and, in the case of registration statements and any Company Reports filed with or furnished to proxy statements, on the SEC subsequent to dates of effectiveness and the date dates of this Agreement will notmailing, contain respectively) any untrue statement of a material fact or omit omitted to state a material fact required to be stated or incorporated by reference therein or necessary to make the statements made therein, in the light of the circumstances in under which they were made, not misleading.
(b) The Company has provided (including via the SEC’s XXXXX system, as applicable) Parent all of the Company Financial Statements and all material correspondence (if such correspondence has occurred since December 31, 2010) between the SEC on the one hand, and the Company and any of its Subsidiaries, on the other hand. As of the date hereof, there are no outstanding or unresolved comments in comment letters from the SEC staff with respect to any of the Company Reports. As of the date hereof, none of the Company Reports is in compliance the subject of ongoing SEC review, outstanding SEC comment or outstanding SEC investigation. All of the Company Financial Statements comply in all material respects with applicable requirements of the applicable listing Exchange Act and corporate governance have been prepared in accordance with GAAP (as in effect in the United States on the date of such Company Financial Statement) applied on a consistent basis throughout the periods involved (except as may be indicated in the notes thereto or, in the case of unaudited statements, as permitted by SEC rules and regulations regulations) and fairly present in all material respects the consolidated financial position of Nasdaqthe Company at the respective dates thereof and the consolidated results of its operations and changes in cash flows for the periods indicated therein (except as may be indicated in the notes thereto or, in the case of unaudited statements, for normal year-end audit adjustments that were not or are not material individually or in the aggregate). As of the date hereof, Xxxxx Xxxxxxxx LLP has not resigned or been dismissed as independent public accountants of the Company as a result of or in connection with any disagreements with the Company on a matter of accounting principles or practices, financial statement disclosure or auditing scope or procedure.
(c) The Company maintains disclosure and its Subsidiaries have implemented and maintain a system of internal accounting controls and procedures required by Rule 13a-15 or 15d-15 under the Exchange Act. Such disclosure controls and procedures are designed to ensure that information required to be disclosed by the Company in its filings with the SEC under the Exchange Act is recorded and reported on a timely basis to the individuals responsible for the preparation of the Company’s filings with the SEC under the Exchange Act. The Company maintains internal control over financial reporting (as defined in Rule 13a-15 or 15d-15, as applicable, under the Exchange Act). Such internal control over financial reporting is designed sufficient to provide reasonable assurance assurances regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with GAAP. Such internal accounting controls are sufficient in all material respects to provide reasonable assurance that (i) transactions are recorded as necessary to permit preparation of financial statements in conformity with GAAP, (ii) that receipts and expenditures are executed in accordance with the authorization of management and (iii) regarding prevention or timely detection of the unauthorized acquisition, use or disposition of the Company’s assets that would materially affect the Company’s financial statements. The Company has disclosed(x) implemented and maintains disclosure controls and procedures (as defined in Rule 13a-15(e) of the Exchange Act) designed to ensure that information relating to the Company, including its consolidated Subsidiaries, required to be disclosed in the reports the Company files or submits under the Exchange Act is made known to the Chief Executive Officer and the Chief Financial Officer of the Company by others within those entities, and (y) based on the its most recent evaluation of its Chief Executive Officer and its Chief Financial Officer the Company’s internal control over financial reporting prior to the date of this Agreementhereof, disclosed, to the extent required by applicable Law, in any applicable Company SEC filing that is reported on Form 10-K or Form 10-Q, or any amendments thereto, and to the Company’s auditors and the audit committee of the Company’s Company Board of Directors Directors, (xi) any all significant deficiencies and material weaknesses in the design or operation of its internal controls over financial reporting that are reasonably likely to adversely affect the Company’s ability to record, process, summarize and report financial information and (yii) any fraud, whether or not material, that involves management or other employees who have a significant role in the Company’s internal control over financial reportingcontrols, and the Company has provided to Parent copies of any material written materials relating to each of the foregoing. The Company has implemented and maintains disclosure controls and procedures (as defined in Rule 13a-15(e) of the Exchange Act) designed to ensure that information relating to the Company, including its consolidated Subsidiaries, required to be disclosed in the reports the Company files or submits under the Exchange Act is made available known to the Chief Executive Officer and the Chief Financial Officer of the Company by others within those entities. Based on its most recent evaluation of the Company’s disclosure controls and procedures prior to the date hereof, has disclosed in any applicable Company SEC filing that is reported on Form 10-K or Form 10-Q, or any amendments thereto, its conclusions about the effectiveness of this Agreement such controls and procedures, as of the end of the period covered by such report or amendment based on such evaluation, in timely alerting the Company’s Chief Executive Officer and its Chief Financial Officer to Parent (I) either materials relating material information required to or a summary of any disclosure of matters described in clauses (x) or (y) be included in the preceding sentence made by management of Company’s periodic reports required under the Company to its auditors and audit committee on or after the Applicable Date and prior to the date of this Agreement and (II) any material communication on or after the Applicable Date and prior to the date of this Agreement made by management of the Company or its auditors to the audit committee as required by the listing standards of Nasdaq, the audit committee’s charter or professional standards of the Public Company Accounting Oversight Board. Since the Applicable Date and prior to the date of this Agreement, no complaints from any source regarding a material violation of accounting procedures, internal accounting controls or auditing matters or compliance with Law, including from Company Employees regarding questionable accounting, auditing or legal compliance matters have, to the Knowledge of the Company, been received by the CompanyExchange Act.
(d) Each of the consolidated balance sheets included in or incorporated by reference into the Company Reports (including the related notes The records, systems, controls, data and schedules) fairly presents or, in the case of Company Reports filed after the date of this Agreement, will fairly present, in each case, in all material respects, the consolidated financial position of the Company and its Subsidiaries, as of the date of such balance sheet, and each of the consolidated statements of operations, cash flows and changes in stockholders’ equity (deficit) included in or incorporated by reference into the Company Reports (including any related notes and schedules) fairly presents, or, in the case of Company Reports filed after the date of this Agreement, will fairly present, in each case, in all material respects, the results of operations, retained earnings (loss) and changes in financial position, as the case may be, information of the Company and its Subsidiaries for the periods set forth therein are recorded, stored, maintained and operated under means (subjectincluding any electronic, in the case of unaudited statementsmechanical or photographic process, to notes and normal year-end audit adjustments whether computerized or not) that are not under the exclusive ownership and direct control of the Company or will not be material in amount its Subsidiaries or effecttheir accountants (including all means of access thereto and therefrom), in each case in accordance with GAAP consistently applied during except where the periods involvedfailure to be so recorded, except as may be noted therein stored, maintained or operated would not, individually or in the notes theretoaggregate, reasonably be expected to have a Company Material Adverse Effect.
(e) Neither Since January 1, 2011, the Company nor any of its Subsidiaries has incurred any Indebtedness, or issued or sold any debt securities or rights to acquire any debt security been in compliance in all material respects with the applicable provisions of the Company or any of its Subsidiaries, the terms of which, or the terms of any instrument under which such Indebtedness, debt securities or rights were issued, requires the public listing of such Indebtedness, debt securities or rights or the maintenance by the Company or any of its Subsidiaries of registration under the Exchange Xxxxxxxx-Xxxxx Act.
Appears in 1 contract
Company Reports; Financial Statements. (ai) The Company has filed or furnished, as applicable, on a timely basis, all forms, statements, certifications, reports and documents required to be filed or furnished by it with or to the SEC pursuant to the Exchange Act or the Securities Act of 1933, as amended (the “Securities Act”), since June 30December 31, 2014 2019 (the “Applicable Date”) (the forms, statements, reports and documents filed with or furnished to the SEC since the Applicable Date and those filed with or furnished to the SEC subsequent to the date of this Agreement, in each case as amendedincluding any amendments thereto, the “Company Reports”). No Subsidiary of the Company is or has been required to file or furnish any periodic reports with the SEC. Each of the Company Reports, at the time of its filing or being furnished complied or, if not yet filed or furnished, will comply when filed or furnished in all material respects with the applicable requirements of the Securities Act, the Exchange Act Act, applicable accounting standards and the Xxxxxxxx-Xxxxx Act of 2002 2002, as amended (the “Xxxxxxxx-Xxxxx Act”), and any rules and regulations promulgated thereunder applicable to the Company Reports. As of their respective dates (or, if amended prior to the date of this Agreement, as of the date of such amendment), the Company Reports did not, and any Company Reports filed with or furnished to the SEC subsequent to the date of this Agreement will not, contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements made therein, in light of the circumstances in which they were made, not misleading.
(bii) The Company is in compliance in all material respects with the applicable listing and corporate governance rules and regulations of Nasdaq.
(c) The Company maintains disclosure controls and procedures required by Rule 13a-15 or 15d-15 under the Exchange Act. Such disclosure controls and procedures are designed to ensure that information required to be disclosed by the Company in its filings with the SEC under the Exchange Act is recorded and reported on a timely basis to the individuals responsible for the preparation of the Company’s filings with the SEC under the Exchange Act. The Company maintains internal control over financial reporting (as defined in Rule 13a-15 or 15d-15, as applicable, under the Exchange Act). Such internal control over financial reporting is designed to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with United States generally accepted accounting principles (“GAAP. The Company has disclosed, based on the most recent evaluation of its Chief Executive Officer ”) and its Chief Financial Officer prior includes policies and procedures that (i) pertain to the date maintenance of this Agreement, to records that in reasonable detail accurately and fairly reflect the transactions and dispositions of the asset of the Company’s auditors , (ii) provide reasonable assurance that transactions are recorded as necessary to permit preparation of financial statements in accordance with GAAP, and that receipts and expenditures of the audit committee Company are being made only in accordance with authorizations of management and directors of the Company, and (iii) provide reasonable assurance regarding prevention or timely detection of unauthorized acquisition, use or disposition of the Company’s Board of Directors (x) any significant deficiencies and material weaknesses in the design or operation of its internal controls over financial reporting assets that are reasonably likely to adversely affect the Company’s ability to record, process, summarize and report financial information and (y) any fraud, whether or not material, that involves management or other employees who could have a significant role in the Company’s internal control over material effect on its financial reporting. The Company has made available prior to the date of this Agreement to Parent (I) either materials relating to or a summary of any disclosure of matters described in clauses (x) or (y) in the preceding sentence made by management of the Company to its auditors and audit committee on or after the Applicable Date and prior to the date of this Agreement and (II) any material communication on or after the Applicable Date and prior to the date of this Agreement made by management of the Company or its auditors to the audit committee as required by the listing standards of Nasdaq, the audit committee’s charter or professional standards of the Public Company Accounting Oversight Board. Since the Applicable Date and prior to the date of this Agreement, no complaints from any source regarding a material violation of accounting procedures, internal accounting controls or auditing matters or compliance with Law, including from Company Employees regarding questionable accounting, auditing or legal compliance matters have, to the Knowledge of the Company, been received by the Companystatements.
(diii) Each of the consolidated balance sheets included in or incorporated by reference into the Company Reports (including the related notes and schedules) fairly presents or, in the case of Company Reports filed after the date of this Agreement, will fairly present, in each case, in all material respects, the consolidated financial position of the Company and its Subsidiaries, as of the date of such balance sheet, and each of the consolidated statements of operations, cash flows and changes in stockholders’ equity (deficit) included in or incorporated by reference into the Company Reports (including any related notes and schedules) fairly presents, or, in the case of Company Reports filed after the date of this Agreement, will fairly present, in all material respects, the consolidated financial position of the Company and its consolidated Subsidiaries as of its date, and each caseof the consolidated statements of income, changes in shareholders’ equity and cash flows included in or incorporated by reference into the Company Reports (including any related notes and schedules) fairly presents, or in the case of Company Reports filed after the date of this Agreement, will fairly present, in all material respects, the results of operations, retained earnings (loss) and changes in financial positionshareholders’ equity and cash flows, as the case may be, of the Company and its Subsidiaries such companies for the periods set forth therein (subject, in the case of unaudited interim statements, to notes and normal year-end audit adjustments that are not or will not be material and the exclusion of certain notes in amount or effectaccordance with the rules of the SEC relating to unaudited financial statements), in each case in accordance with GAAP consistently applied during GAAP, Regulation S-X of the periods involved, SEC and the rules and standards of the Public Company Accounting Oversight Board except as may be noted therein or in the notes theretotherein.
(e) Neither the Company nor any of its Subsidiaries has incurred any Indebtedness, or issued or sold any debt securities or rights to acquire any debt security of the Company or any of its Subsidiaries, the terms of which, or the terms of any instrument under which such Indebtedness, debt securities or rights were issued, requires the public listing of such Indebtedness, debt securities or rights or the maintenance by the Company or any of its Subsidiaries of registration under the Exchange Act.
Appears in 1 contract
Company Reports; Financial Statements. (a) The Company has filed or furnished, as applicable, on a timely basis, basis all forms, statements, certifications, reports and documents required to be filed or furnished by it with or to the SEC Securities and Exchange Commission (“SEC”) pursuant to the Exchange Act or the Securities Act since June 30on or after December 31, 2014 2013 (the “Applicable Date”) (the forms, statements, certifications, reports and documents filed with or furnished to the SEC since the Applicable Date and those filed with or furnished to the SEC subsequent to the date of this Agreementhereof, in each case as amendedincluding any amendments thereto, the “Company Reports”). Each As of their respective effective, filing, furnishing or amendment dates, as applicable, each of the Company Reports, at the time of its filing or being furnished Reports complied or, if not yet filed or furnished, will comply in all material respects with the applicable requirements of the Securities Act, the Exchange Act and the Xxxxxxxx-Xxxxx Act of 2002 (the “Xxxxxxxx-Xxxxx Act”), and any rules and regulations promulgated thereunder applicable to the Company Reports. As of their respective dates (oreffective filing, if amended prior to the date of this Agreementfurnishing or amendment dates, as of the date of such amendment)applicable, the Company Reports did not, and any Company Reports filed with or furnished to the SEC subsequent to the date of this Agreement will not, not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements made therein, in light of the circumstances in which they were made, not misleading. As of the date hereof, there are no material outstanding or unresolved comments received from the SEC with respect to any of the Company Reports. As of the date hereof, none of the Company’s Subsidiaries is subject to the reporting requirements of Section 13(a) or 15(d) under the Exchange Act.
(b) The Each of the consolidated balance sheets, consolidated statements of operations and comprehensive income (loss), and consolidated statement of cash flows included in or incorporated by reference into the Company is Reports (i) has been prepared from, and in compliance accordance with, the books and records of the Company and its Subsidiaries, (ii) fairly presents in all material respects the consolidated results of operations, statements of income (loss), changes in cash flows and the consolidated financial condition of the Company and its Subsidiaries for the respective fiscal periods or as of the respective dates therein set forth (subject in the case of unaudited statements to normal year-end audit adjustments) and (iii) has been prepared in accordance with GAAP consistently applied during the periods involved (except in the case of unaudited statements for the absence of footnotes and other presentation items), except, in each case, as indicated in such statements or in the notes thereto. As of the date of this Agreement, Xxxxx Xxxxxxxx LLP has not resigned or been dismissed as independent public accountants of the Company as a result of or in connection with any disagreements with the Company on a matter of accounting principles or practices, financial statement disclosure or auditing scope or procedure.
(c) Since the Applicable Date, the Company has complied in all material respects with the applicable listing and corporate governance rules and regulations of Nasdaq.
(cd) The Company maintains disclosure controls and procedures required by Rule 13a-15 or 15d-15 under the Exchange Act. Such disclosure controls and procedures are designed effective to ensure that material information required to be disclosed by the Company in its filings with the SEC under the Exchange Act is recorded and reported on a timely basis to the individuals responsible for the preparation of the Company’s filings with the SEC under the Exchange Actand other public disclosure documents. The Company maintains internal control over financial reporting (as defined in Rule 13a-15 or 15d-15, as applicable, under the Exchange Act). Such internal control over financial reporting is designed to provide provides reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with GAAP. The Since the Applicable Date, the Company has disclosed, based on the most recent evaluation of its Chief Executive Officer and its Chief Financial Officer prior to the date of this Agreement, disclosed to the Company’s auditors and the audit committee Audit Committee of the Company’s Board of Directors of the Company (xi) any significant deficiencies and material weaknesses in the design or operation of its internal controls over financial reporting that are reasonably likely (as defined in Rule 13a-15(f) of the Exchange Act) and (ii) any fraud or, to adversely affect the Knowledge of the Company’s ability to record, process, summarize and report financial information and (y) any fraud, whether or not material, allegation of fraud that involves management or other employees who have a significant role in the Company’s internal control controls over financial reporting. The Company has made available prior , and to the date actual knowledge (without the need for inquiry) of this Agreement to Parent (I) either materials relating to or a summary of any disclosure of matters described those persons set forth in clauses (x) or (y) in the preceding sentence made by management Section 1.1 of the Company to its auditors Disclosure Letter, Section 4.5(d) of the Company Disclosure Letter sets forth, and audit committee on describes in reasonable detail, each such significant deficiency, material weakness or after instance of fraud or alleged fraud.
(e) Since the Applicable Date and prior Date, (i) none of the Company nor any of its Subsidiaries, directors, auditors or accountants or, to the date actual knowledge (without the need for inquiry) of this Agreement and (II) those persons set forth in Section 1.1 of the Company Disclosure Letter, its or its Subsidiaries’ officers, employees or representatives has received any material communication on written complaint, allegation, assertion or after claim regarding the Applicable Date and prior to the date of this Agreement made by management accounting or auditing practices, procedures, methodologies or methods of the Company or any of its auditors Subsidiaries or their respective internal accounting controls, including any material complaint, allegation, assertion or claim that the Company or any of its Subsidiaries has engaged in questionable accounting or auditing practices, and (ii) no attorney representing the Company or any of its Subsidiaries, whether or not employed by the Company or any of its Subsidiaries, has reported to the audit committee as required by the listing standards Board of Nasdaq, the audit committee’s charter or professional standards Directors of the Public Company Accounting Oversight Board. Since or any committee thereof, or to any of the Applicable Date and prior to persons set forth in Section 1.1 of the date Company Disclosure Letter, evidence of this Agreement, no complaints from any source regarding a material violation of accounting proceduressecurities laws, internal accounting controls a breach of fiduciary duty or auditing matters or compliance with Law, including from Company Employees regarding questionable accounting, auditing or legal compliance matters have, to the Knowledge of the Company, been received a similar violation by the CompanyCompany or any of its Subsidiaries or any of their officers, directors or employees.
(d) Each of the consolidated balance sheets included in or incorporated by reference into the Company Reports (including the related notes and schedules) fairly presents or, in the case of Company Reports filed after the date of this Agreement, will fairly present, in each case, in all material respects, the consolidated financial position of the Company and its Subsidiaries, as of the date of such balance sheet, and each of the consolidated statements of operations, cash flows and changes in stockholders’ equity (deficit) included in or incorporated by reference into the Company Reports (including any related notes and schedules) fairly presents, or, in the case of Company Reports filed after the date of this Agreement, will fairly present, in each case, in all material respects, the results of operations, retained earnings (loss) and changes in financial position, as the case may be, of the Company and its Subsidiaries for the periods set forth therein (subject, in the case of unaudited statements, to notes and normal year-end audit adjustments that are not or will not be material in amount or effect), in each case in accordance with GAAP consistently applied during the periods involved, except as may be noted therein or in the notes thereto.
(ef) Neither the Company nor any of its Subsidiaries has any liabilities or obligations of any nature (whether accrued, absolute, contingent or otherwise) which would be required to be reflected or reserved against on a consolidated balance sheet of the Company prepared in accordance with GAAP or the notes thereto, other than liabilities and obligations (i) set forth or as reflected or reserved against in the Company’s consolidated balance sheets as of March 31, 2016 included in the Company Reports filed prior to the date of this Agreement, (ii) incurred any Indebtednesssince March 31, 2016 in the ordinary course of business consistent with past practice, (iii) that have been discharged or issued paid prior to the date of this Agreement, (iv) reasonably incurred since the date hereof as a result of actions required by the terms of this Agreement or sold any debt securities (v) as would not, individually or rights in the aggregate, reasonably be expected to acquire any debt security have a Company Material Adverse Effect. There are no unconsolidated Subsidiaries of the Company or any off-balance sheet arrangements of its Subsidiariesany type (including any off-balance sheet arrangement required to be disclosed pursuant to Item 303(a)(4) of Regulation S-K promulgated under the Securities Act) that have not been so described in the Company Reports nor any obligations to enter into any such arrangements.
(g) As of the Capitalization Date, the terms of which, or the terms of any instrument under which such Indebtedness, debt securities or rights were issued, requires the public listing of such Indebtedness, debt securities or rights or the maintenance by the Company or any of and its Subsidiaries had in the aggregate $130,797,685.34 of registration under the Exchange Actfreely available cash and cash equivalents.
Appears in 1 contract
Samples: Merger Agreement (Sciquest Inc)
Company Reports; Financial Statements. (a) The Company has filed or furnished, as applicable, on a timely basis, all forms, statements, certifications, reports and documents required to be filed or furnished by it with or to the SEC pursuant to the Exchange Act or the Securities Act Act, since June 30January 5, 2014 2011 (the “Applicable Date”) (,” and the forms, statements, reports and documents filed with or furnished to the SEC since the Applicable Date and those filed with or furnished to the SEC subsequent to the date of this the Agreement, in each case as amendedincluding any amendments thereto, the “Company Reports”). No Subsidiary of the Company is or has been required to file or furnish any periodic reports with the SEC. Each of the Company Reports, at the time of its filing or being furnished complied or, if not yet filed or furnished, will comply when filed or furnished, in all material respects with the applicable requirements of the Securities Act, the Exchange Act Act, applicable accounting standards and the Xxxxxxxx-Xxxxx Act of 2002 (as amended and including the “Xxxxxxxx-Xxxxx Act”rules and regulations promulgated thereunder), and any rules and regulations promulgated thereunder applicable to the Company Reports. As of their respective dates (or, if amended prior to the date of this the Agreement, as of the date of such amendment), the Company Reports did not, and any Company Reports filed with or furnished to the SEC subsequent to the date of this the Agreement will not, contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements made therein, in light of the circumstances in which they were made, not misleading.
(b) The Company is in compliance in all material respects with the applicable listing and corporate governance rules and regulations of Nasdaq.
(c) The Company maintains disclosure controls and procedures required by Rule 13a-15 or 15d-15 under the Exchange Act. Such disclosure controls and procedures are designed to ensure that information required to be disclosed by the Company in its filings with the SEC under the Exchange Act is recorded and reported on a timely basis to the individuals responsible for the preparation of the Company’s filings with the SEC under the Exchange Act. The Company maintains internal control over financial reporting (as defined in Rule 13a-15 or 15d-15, as applicable, under the Exchange Act). Such internal control over financial reporting is ) that are designed to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with GAAP. The Company has disclosed, based on the most recent evaluation of its Chief Executive Officer U.S. GAAP and its Chief Financial Officer prior includes policies and procedures that (A) pertain to the date maintenance of this Agreement, to records that in reasonable detail accurately and fairly reflect the transactions and dispositions of the assets of the Company’s auditors , (B) provide reasonable assurance that transactions are recorded as necessary to permit preparation of financial statements in accordance with U.S. GAAP, and that receipts and expenditures of the audit committee Company are being made only in accordance with authorizations of management and directors of the Company, and (C) provide reasonable assurance regarding prevention or timely detection of unauthorized acquisition, use or disposition of the Company’s Board of Directors (x) any significant deficiencies and material weaknesses in the design or operation of its internal controls over financial reporting assets that are reasonably likely to adversely affect the Company’s ability to record, process, summarize and report financial information and (y) any fraud, whether or not material, that involves management or other employees who could have a significant role in the Company’s internal control over material effect on its financial reporting. The Company has made available prior to the date of this Agreement to Parent (I) either materials relating to or a summary of any disclosure of matters described in clauses (x) or (y) in the preceding sentence made by management of the Company to its auditors and audit committee on or after the Applicable Date and prior to the date of this Agreement and (II) any material communication on or after the Applicable Date and prior to the date of this Agreement made by management of the Company or its auditors to the audit committee as required by the listing standards of Nasdaq, the audit committee’s charter or professional standards of the Public Company Accounting Oversight Board. Since the Applicable Date and prior to the date of this Agreement, no complaints from any source regarding a material violation of accounting procedures, internal accounting controls or auditing matters or compliance with Law, including from Company Employees regarding questionable accounting, auditing or legal compliance matters have, to the Knowledge of the Company, been received by the Companystatements.
(dc) Each of the consolidated balance sheets included in or incorporated by reference into the Company Reports (including the related notes and schedules) fairly presents presents, or, in the case of Company Reports filed after the date of this the Agreement, will fairly present, in each case, in all material respects, the consolidated financial position of the Company and its Subsidiaries, consolidated Subsidiaries as of the date of such balance sheetits date, and each of the consolidated statements of operationsincome, changes in shareholders’ equity and cash flows and changes in stockholders’ equity (deficit) included in or incorporated by reference into the Company Reports (including any related notes and schedules) fairly presents, or, or in the case of Company Reports filed after the date of this the Agreement, will fairly present, in each case, in all material respects, the results of operations, retained earnings (loss) and changes in financial positionshareholders’ equity and cash flows, as the case may be, of the Company and its consolidated Subsidiaries for the periods set forth therein (subject, in the case of unaudited interim statements, to notes and normal year-end audit adjustments that are not or will not be material and the exclusion of certain notes in amount or effectaccordance with the rules of the SEC relating to unaudited financial statements), in each case in accordance with GAAP consistently applied during U.S. GAAP, Regulation S-X and the periods involved, rules and standards of the Public Company Accounting Oversight Board except as may be noted therein or in the notes theretotherein.
(ed) Neither The Company has implemented disclosure controls and procedures (as defined in Rule 13a-15(e) of the Company nor any of Exchange Act) that are reasonably designed to ensure that material information relating to the Company, including its Subsidiaries has incurred any IndebtednessSubsidiaries, or issued or sold any debt securities or rights required to acquire any debt security be included in reports filed under the Exchange Act is made known to the chief executive officer and chief financial officer of the Company or any of its Subsidiariesother Persons performing similar functions by others within those entities. Neither the Company nor, to the Company’s Knowledge, the terms Company’s independent registered public accounting firm has identified or been made aware of which“significant deficiencies” or “material weaknesses” (as defined by the Public Company Account Oversight Board) in the design or operation of the Company’s internal controls and procedures which are reasonably likely to adversely affect the Company’s ability to record, process, summarize and report financial data, in each case which has not been subsequently remediated. To the Company’s Knowledge, there is no fraud, whether or not material, that involves the terms of any instrument under which such Indebtedness, debt securities Company’s management or rights were issued, requires other employees who have a significant role in the public listing of such Indebtedness, debt securities or rights or the maintenance internal control over financial reporting utilized by the Company or any of and its Subsidiaries of registration under the Exchange ActSubsidiaries.
Appears in 1 contract
Samples: Merger Agreement (Diodes Inc /Del/)
Company Reports; Financial Statements. (ai) The Company has filed or furnished, as applicable, on a timely basis, all forms, statements, certifications, reports and documents required to be filed or furnished by it with or to the SEC U.S. Securities and Exchange Commission (the “SEC”) pursuant to the Exchange Act or the Securities Act of 1933, as amended (the “Securities Act”) since June 30December 31, 2014 2017 (the “Applicable Date”) (the forms, statements, reports and documents filed with or furnished to the SEC since the Applicable Date and those filed with or furnished to the SEC subsequent to the date of this Agreement, in each case as amended, the “Company Reports”). Each of the Company Reports, at the time of its filing or being furnished complied or, if not yet filed or furnished, will comply in all material respects with the applicable requirements of the Securities Act, the Exchange Act and the Xxxxxxxx-Xxxxx Act of 2002 (the “Xxxxxxxx-Xxxxx Act”), and any rules and regulations promulgated thereunder applicable to the Company Reports. As of their respective dates (or, if amended prior to the date of this Agreement, as of the date of such amendment), the Company Reports did not, and any Company Reports filed with or furnished to the SEC subsequent to the date of this Agreement will not, contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements made therein, in light of the circumstances in which they were made, not misleading. There are no outstanding or unresolved comments in comment letters from the SEC or the Staff with respect to any of the Company Reports. To the Knowledge of the Company, none of the Company Reports is the subject of ongoing SEC review, outstanding SEC comment or outstanding SEC investigation. None of the Company’s Subsidiaries is required to file any forms, reports, registrations, statements or other documents with the SEC.
(bii) The Company is in compliance in all material respects with the applicable listing and corporate governance rules and regulations of Nasdaqthe NYSE.
(ciii) The Company maintains disclosure controls and procedures required by Rule 13a-15 or 15d-15 under the Exchange Act. Such disclosure controls and procedures are designed to ensure that information required to be disclosed by the Company in its filings with the SEC under the Exchange Act is recorded and reported on a timely basis to the individuals responsible for the preparation of the Company’s filings with the SEC under the Exchange Act. The Company maintains internal control over financial reporting (as defined in Rule 13a-15 or 15d-15, as applicable, under the Exchange Act). Such internal control over financial reporting is designed to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with GAAP. The Company has disclosed, based on the most recent evaluation of its Chief Principal Executive Officer and its Chief Financial Officer prior to the date of this Agreement, to the Company’s auditors and the audit committee of the Company’s Board board of Directors directors (x) any significant deficiencies and material weaknesses in the design or operation of its internal controls over financial reporting that are reasonably likely to adversely affect the Company’s ability to record, process, summarize and report financial information and (y) any fraud, whether or not material, that involves management or other employees who have a significant role in the Company’s internal control over financial reporting. The Company has made available prior to the date of this Agreement to Parent (I) either materials relating to or a summary of any disclosure of matters described in clauses (x) or (y) in the preceding sentence made by management of the Company to its auditors and audit committee on or after the Applicable Date and prior to the date of this Agreement and (II) any material communication on or after the Applicable Date and prior to the date of this Agreement made by management of the Company or its auditors to the audit committee as required by the listing standards of Nasdaqthe NYSE, the audit committee’s charter or professional standards of the Public Company Accounting Oversight Board. Since the Applicable Date and prior to the date of this AgreementDate, no complaints from any source regarding a material violation of accounting procedures, internal accounting controls or auditing matters or compliance with Lawmatters, including from employees of the Company Employees or its Subsidiaries regarding questionable accounting, auditing or legal compliance matters have, to the Knowledge of the Company, been received by the Company.
(div) No executive officer of the Company has failed, in the last two (2) years, to make the certifications required of him or her under Sections 302 or 906 of the Xxxxxxxx-Xxxxx Act with respect to any Company Report, except as disclosed in certifications filed with such Company Report. Neither the Company nor any of its executive officers has, in the last two (2) years, received written notice from any Governmental Entity challenging or questioning the accuracy, completeness, form or manner of filing of such certifications. Since the Applicable Date, the Company and each of its officers and, to the Knowledge of the Company, each of its directors, have been and are in compliance in all material respects with the applicable provisions of the Xxxxxxxx-Xxxxx Act and the rules and regulations promulgated thereunder.
(v) Each of the consolidated balance sheets included in or incorporated by reference into the Company Reports (including the related notes and schedules) fairly presents or, in the case of Company Reports filed after the date of this Agreement, will fairly present, in each case, in all material respects, the consolidated financial position of the Company and its Subsidiaries, as of the date of such balance sheet, and each of the consolidated statements of operationsincome, cash flows and changes in stockholders’ equity (deficit) included in or incorporated by reference into the Company Reports (including any related notes and schedules) fairly presents, or, in the case of Company Reports filed after the date of this Agreement, will fairly present, in each case, in all material respects, the results of operations, retained earnings (loss) and changes in financial position, as the case may be, of the Company and its Subsidiaries for the periods set forth therein (subject, in the case of unaudited statements, to notes and normal year-end audit adjustments that are not or will not be material in amount or effect), in each case in accordance with GAAP consistently applied during the periods involved, except as may be noted therein or in the notes thereto.
(evi) Neither the Company nor any of its Subsidiaries has incurred any Indebtedness, or issued or sold any debt securities or rights to acquire any debt security of the Company or any of its Subsidiaries, the terms of which, or the terms of any instrument under which such Indebtedness, debt securities or rights were issued, requires the public listing of such Indebtedness, debt securities or rights or the maintenance by the Company or any of its Subsidiaries of registration under the Exchange Act.. Neither the Company nor any of its
Appears in 1 contract
Company Reports; Financial Statements. (ai) The Company has filed or furnished, as applicable, on a timely basis, all forms, statements, certifications, reports and documents required to be filed or furnished by it with or to the SEC pursuant to the Exchange Act or the Securities Act since June 30December 31, 2014 2003 (the “Applicable Date”"APPLICABLE DATE") (the forms, statements, reports and documents filed with or furnished to the SEC since the Applicable Date and those filed with or furnished to the SEC subsequent to the date of this AgreementAgreement and prior to the Closing, in each case as amendedincluding any amendments thereto, the “Company Reports”"COMPANY REPORTS"). Each of the Company Reports, at the time of its filing or being furnished complied or, if not yet filed or furnished, will comply in all material respects with the applicable requirements of the Securities Act, the Exchange Act and the XxxxxxxxSarbanes-Xxxxx Oxley Act of 2002 (the “Xxxxxxxx"SARBANES-Xxxxx Act”OXLEY ACT"), and any rules and regulations rxxxx xxx xxxxxations promulgated thereunder applicable xxxxxxxxxx xxxlicable to the Company Reports. As of their respective dates (or, if amended prior to the date of this Agreement, as of the date of such amendment), the Company Reports did not, and any Company Reports filed with or furnished to the SEC subsequent to the date of this Agreement will not, contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements made therein, in light of the circumstances in which they were made, not misleading.
(bii) The Company is in compliance in all material respects with the applicable listing and corporate governance rules and regulations of NasdaqNASDAQ. Except as permitted by the Exchange Act, including Sections 13(k)(2) and (3) or rules of the SEC, since the enactment of the Sarbanes-Oxley Act, neither the Company nor any of its Affiliates has xxxx, xxranged or modified (in any material way) any extensions of credit in the form of a personal loan to any executive officer or director of the Company. For purposes of this Agreement, the term "AFFILIATE" when used with respect to any party shall mean any Person who is an "affiliate" of that party within the meaning of Rule 405 promulgated under the Securities Act.
(ciii) The Company maintains disclosure controls and procedures required by and in accordance with Rule 13a-15 or 15d-15 under the Exchange Act. Such disclosure controls and procedures are designed to ensure that information required to be disclosed by the Company in its filings with the SEC under the Exchange Act is recorded and reported on a timely basis to the individuals responsible for the preparation of the Company’s filings with the SEC 15d-15, as applicable, under the Exchange Act. The Company maintains internal control over financial reporting (reporting, as defined required by and in accordance with Rule 13a-15 or 15d-15, as applicable, under the Exchange Act). Such internal control over financial reporting is designed to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with GAAP. The Company has disclosed, based on the most recent evaluation of by its Chief Executive Officer chief executive officer and its Chief Financial Officer chief financial officer prior to the date of this Agreement, to the Company’s 's auditors and the audit committee of the Company’s Board 's board of Directors directors (xA) any significant deficiencies and material weaknesses in the design or operation of its internal controls control over financial reporting that are reasonably likely to adversely affect the Company’s 's ability to record, process, summarize and report financial information and has identified for the Company's auditors and audit committee of the Company's board of directors any material weaknesses in internal control over financial reporting and (yB) any fraud, whether or not material, that involves management or other employees who have a significant role in the Company’s 's internal control over financial reporting. The Company has made available prior to the date of this Agreement to Parent (Ii) either materials relating to or a summary of any such disclosure of matters described in clauses (x) or (y) in the preceding sentence made by management of to the Company to its Company's auditors and audit committee on or after since the Applicable Date and prior to the date of this Agreement and (IIii) any material communication on or after since the Applicable Date and prior to the date of this Agreement made in writing by management of or the Company or its Company's auditors to the audit committee as and required or contemplated by the listing standards of Nasdaqthe NASDAQ, the audit committee’s 's charter or professional standards of the Public Company Accounting Oversight Board. Since the Applicable Date and prior to the date of this AgreementDate, no complaints from any source regarding a material violation of accounting proceduresaccounting, internal accounting controls or auditing matters or compliance with Lawmatters, including and no material concerns from Company Employees employees regarding questionable accountingaccounting or auditing matters, auditing or legal compliance matters have, to the Knowledge of the Company, have been received by the Company. The Company has made available to Parent a summary of all complaints or concerns made since the Applicable Date through the Company's whistleblower hot line or equivalent system for receipt of employee concerns regarding possible violations of Law. No attorney representing the Company or any of its Subsidiaries, whether or not employed by the Company or any of its Subsidiaries, has reported evidence of a violation of securities laws, breach of fiduciary duty or similar violation by the Company or any of its officers, directors, employees or agents to the Company's chief legal officer, audit committee (or other committee designated for the purpose) of the board of directors or the board of directors pursuant to the rules adopted pursuant to Section 307 of the Sarbanes-Oxley Act or any Company policy contemplating such repoxxxxx, xxxxxxxng in instances not required by those rules.
(div) Each of the consolidated balance sheets included in or incorporated by reference into the Company Reports (including the related notes and schedules) fairly presents in all material respects, or, in the case of Company Reports filed after the date of this Agreement, will fairly present, in each case, present in all material respects, respects the consolidated financial position of the Company and its Subsidiaries, consolidated Subsidiaries as of the its date of such balance sheet, and each of the consolidated statements of operationsincome, cash flows and changes in stockholders’ shareholders' equity (deficit) and cash flows included in or incorporated by reference into the Company Reports (including any related notes and schedules) fairly presentspresents in all material respects, or, or in the case of Company Reports filed after the date of this Agreement, will fairly present, in each case, present in all material respects, respects the results of operations, retained earnings (loss) and changes in financial position, as the case may be, of the Company and its Subsidiaries such companies for the periods set forth therein (subject, in the case of unaudited statements, to notes and normal year-end audit adjustments that are not or will not be material in amount or effect), in each case in accordance with GAAP U.S. generally accepted accounting principles ("GAAP") consistently applied during the periods involved, except as may be noted therein or in the notes theretotherein.
(e) Neither the Company nor any of its Subsidiaries has incurred any Indebtedness, or issued or sold any debt securities or rights to acquire any debt security of the Company or any of its Subsidiaries, the terms of which, or the terms of any instrument under which such Indebtedness, debt securities or rights were issued, requires the public listing of such Indebtedness, debt securities or rights or the maintenance by the Company or any of its Subsidiaries of registration under the Exchange Act.
Appears in 1 contract
Company Reports; Financial Statements. (a) The Company has furnished or filed or furnishedall reports, as applicableschedules, on a timely basis, all forms, statements, certifications, reports certifications and other documents (including exhibits and other information incorporated therein) required to be furnished or filed or furnished by it the Company with or to the SEC pursuant to the Exchange Act or the Securities Act since June 30January 1, 2014 (such documents, together with all exhibits, financial statements, including the Company Financial Statements, and schedules thereto and all information incorporated therein by reference, but excluding the Proxy Statement, being collectively referred to as the “Applicable DateCompany Reports”) and has timely paid all fees due in connection therewith. Each Company Report (excluding any financial statements or schedules included or incorporated by reference therein) (i) at the forms, statements, reports and documents time furnished or filed with (or furnished to the SEC since the Applicable Date and those filed with if amended or furnished to the SEC subsequent superseded by a filing or amendment prior to the date of this Agreement, in each case as amended, the “Company Reports”). Each of the Company Reports, then at the time of its such filing or being furnished amendment, and, in the case of registration statements and proxy statements, on the dates of effectiveness and the dates of the relevant meetings, respectively), complied or, if not yet filed or furnished, will comply in all material respects with the applicable requirements of the Securities Exchange Act, the Exchange Securities Act and the Xxxxxxxx-Xxxxx Act of 2002 (including the “Xxxxxxxx-Xxxxx Act”), and any rules and regulations promulgated under each of the foregoing), as applicable, and the rules and regulations of the SEC promulgated thereunder applicable to such Company Report and (ii) did not at the Company Reports. As of their respective dates time it was filed (or, or if amended or superseded by a filing or amendment prior to the date of this Agreement, as of then at the date time of such filing or amendment), the Company Reports did not, and any Company Reports filed with or furnished to the SEC subsequent to the date of this Agreement will not, ) contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements made therein, in light of the circumstances in under which they were made, not misleading. Since January 1, 2014, no executive officer of the Company has failed in any respect to make the certifications required of him or her under Section 302 or 906 of the Xxxxxxxx-Xxxxx Act. As of the date of this Agreement, there are no outstanding or unresolved comments in any comment letters of the staff of the SEC received by the Company relating to the Company Reports. No Company Subsidiary is subject to the periodic reporting requirements of the Exchange Act or is subject to the periodic reporting requirements of any foreign Governmental Authority that performs a similar function to that of the SEC or any applicable foreign securities Law of any exchange or quotation service.
(b) The Each of the consolidated financial statements of the Company is included or incorporated by reference in compliance the Company Reports, including the related notes and schedules (the “Company Financial Statements”), (i) comply in all material respects and have been prepared in all material respects in accordance with all applicable accounting requirements and the applicable listing and corporate governance rules and regulations of Nasdaqthe SEC, the Exchange Act and the Securities Act with respect thereto, (ii) was prepared in accordance with United States generally accepted accounting principles (“GAAP”) (except, in the case of unaudited quarterly financial statements, subject to normal year-end audit adjustments and the absence of notes) applied on a consistent basis during the periods and as of the dates involved (except as may be indicated in the notes thereto), (iii) fairly present in all material respects, in accordance with GAAP, the consolidated financial position of the Company and the Company’s consolidated Subsidiaries as of the dates thereof and the consolidated results of their operations and cash flows and changes in stockholders equity for the periods shown (subject, in the case of unaudited quarterly financial statements, to normal year-end audit adjustments and the absence of notes), and (iv) have been prepared from and are in accordance with the books and records of the Company and its consolidated Subsidiaries.
(c) Section 3.06(c) of the Company Disclosure Letter sets forth (i) the pre-tax unaudited combined balance sheet of the Education Business as of June 30, 2017 and the related pre-tax combined statements of operations, combined statements of equity and the combined statements of cash flows for the six (6) month period then ended, and (ii) the audited combined balance sheet of the Education Business as of December 31, 2016 and December 31, 2015 and the related combined statements of operations, combined statements of equity and the combined statements of cash flows for the years ended December 31, 2016 and December 31, 2015 and the nine (9) month period ended December 31, 2014 (all such financial statements the “Education Financial Statements”). The Education Financial Statements have been prepared in good faith from the Company Entities’ books and records and fairly present, in all material respects, the combined financial position of the Education Business of the Company as at the respective dates thereof and the combined results of operations of the Education Business for the respective periods covered thereby, in each case, in accordance with GAAP applied on a consistent basis throughout the periods covered thereby (except as may be indicated in the notes to such financial statements or, in the case of unaudited statements, subject to the absence of notes not required by GAAP and normal year-end adjustments).
(d) Section 3.06(d) of the Company Disclosure Letter sets forth (i) the unaudited pre-tax combined balance sheet of the Company Entities as of June 30, 2017 after giving effect to the carve out of the Education Business reflected in the Education Financial Statements and the related pre-tax combined statements of operations for the six (6) month period then ended and (ii) the unaudited combined balance sheet of the Company Entities as of December 31, 2016 and December 31, 2015 after giving effect to the carve out of the Education Business reflected in the Education Financial Statements and the related combined statements of operations for the years ended December 31, 2016 and December 31, 2015 and the nine (9) month period ended December 31, 2014 (the “Health Care Financial Statements”). The Health Care Financial Statements have not been prepared in accordance with GAAP, including with respect to (i) Accounting Standards Codification 205-20, Presentation of Financial Statements – Discontinued Operations, following the adoption of Accounting Standards Update 2014-08, (ii) any pro forma adjustments related to the proposed disposition of the Education Business, (iii) transition services agreements or (iv) capital transactions. The Health Care Financial Statements do not include as components any asset or liability of the Company Entities that are included as a component of the Education Financial Statements. The Health Care Financial Statements have been prepared in good faith from the Company Entities’ books and records and fairly present, in all material respects, the combined financial position of the Company Entities after giving effect to the carve out of the Education Business reflected in the Education Financial Statements as of the respective dates thereof and the combined results of operations of the Company Entities after giving effect to the carve out of the Education Business of the Company reflected in the Education Financial Statements for the respective periods covered thereby.
(e) No Company Entity has any Liability, except Liabilities (i) reflected or reserved against in the consolidated balance sheet of the Company Entities included in the Quarterly Report on Form 10-Q for the three-month period ended June 30, 2017, (ii) incurred in the ordinary course of business after June 30, 2017, (iii) expressly contemplated by this Agreement, the Education Transaction Documents or the Transactions or (iv) that would not reasonably be expected to result in a Material Adverse Effect.
(f) The Company maintains disclosure controls and procedures required by Rule 13a-15 or 15d-15 under the Exchange Act. Such disclosure controls and procedures are designed to ensure that information required to be disclosed by the Company in its filings with the SEC under the Exchange Act is recorded and reported on a timely basis to the individuals responsible for the preparation system of the Company’s filings with the SEC under the Exchange Act. The Company maintains “internal control over financial reporting reporting” (as defined in Rule 13a-15 or 15d-15, as applicable, under the Exchange Act). Such internal control over financial reporting is designed to provide effective in providing reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance compliance in all material respects with GAAPall legal and accounting requirements applicable to the Company Entities and as otherwise required by Rule 13a-15 or 15d-5 under the Exchange Act. The Company maintains “disclosure controls and procedures” required by Rule 13a-15 or 15d-15 under the Exchange Act that are effective to ensure that all material information required to be disclosed by the Company in the reports it files or submits under the Exchange Act is recorded, processed, summarized and reported on a timely basis to the individuals responsible for the preparation of the Company’s filings with the SEC and other public disclosure documents. The Company has disclosed, based on the its most recent evaluation of its Chief Executive Officer and its Chief Financial Officer prior to the date of this Agreement, to the Company’s outside auditors and the audit committee of the Company’s Company Board of Directors (x1) any significant deficiencies and material weaknesses in the design or operation of its internal controls over financial reporting (as defined in Rule 13a-15(f) under the Exchange Act) that are reasonably likely to adversely affect the Company’s ability to record, process, summarize and report financial information and (y2) any fraud, whether or not material, that involves management or other employees who have a significant role in the Company’s internal control controls over financial reporting. The Company , and each such deficiency, weakness and fraud so disclosed to auditors, if any, has made available been disclosed to Parent prior to the date of this Agreement Agreement.
(g) No Company Entity is a party to, or has any contractual commitment to Parent become a party to, any material “off-balance sheet arrangements” (Ias defined in Item 303(a) either materials relating to of Regulation S-K of the SEC).
(h) Since July 1, 2014, (i) no Company Entity has received any written complaint, allegation or a summary Claim regarding the accounting, internal accounting controls or auditing practices, procedures, methodologies or methods of any disclosure Company Entity or any complaint, allegation or Claim, whether written or to a compliance hotline or similar reporting method, from employees of any Company Entity regarding questionable accounting or auditing matters described in clauses with respect to any Company Entity, and (xii) no attorney representing any Company Entity, whether or not employed by any Company Entity, has reported evidence of a violation of securities Laws or breach of fiduciary duty by any Company Entity to the Company Board or any committee thereof, or to the General Counsel or Chief Executive Officer of the Company.
(yi) in the preceding sentence made by management Section 3.06(i) of the Company to its auditors Disclosure Letter sets forth the amount and audit committee on or after a description of the Applicable Date and prior to aggregate Indebtedness of the Company Entities as of the earlier of (1) the date of this Agreement and (II2) any material communication on or after the Applicable Date and prior to the date of this Agreement made by management of the Company or its auditors to the audit committee as required by the listing standards of Nasdaq, the audit committee’s charter or professional standards of the Public Company Accounting Oversight Board. Since the Applicable Date and prior to the date of this Agreement, no complaints from any source regarding a material violation of accounting procedures, internal accounting controls or auditing matters or compliance with Law, including from Company Employees regarding questionable accounting, auditing or legal compliance matters have, to the Knowledge of the Company, been received by the Companyspecified therein.
(d) Each of the consolidated balance sheets included in or incorporated by reference into the Company Reports (including the related notes and schedules) fairly presents or, in the case of Company Reports filed after the date of this Agreement, will fairly present, in each case, in all material respects, the consolidated financial position of the Company and its Subsidiaries, as of the date of such balance sheet, and each of the consolidated statements of operations, cash flows and changes in stockholders’ equity (deficit) included in or incorporated by reference into the Company Reports (including any related notes and schedules) fairly presents, or, in the case of Company Reports filed after the date of this Agreement, will fairly present, in each case, in all material respects, the results of operations, retained earnings (loss) and changes in financial position, as the case may be, of the Company and its Subsidiaries for the periods set forth therein (subject, in the case of unaudited statements, to notes and normal year-end audit adjustments that are not or will not be material in amount or effect), in each case in accordance with GAAP consistently applied during the periods involved, except as may be noted therein or in the notes thereto.
(e) Neither the Company nor any of its Subsidiaries has incurred any Indebtedness, or issued or sold any debt securities or rights to acquire any debt security of the Company or any of its Subsidiaries, the terms of which, or the terms of any instrument under which such Indebtedness, debt securities or rights were issued, requires the public listing of such Indebtedness, debt securities or rights or the maintenance by the Company or any of its Subsidiaries of registration under the Exchange Act.
Appears in 1 contract
Samples: Merger Agreement (Advisory Board Co)
Company Reports; Financial Statements. (a) The Company has filed or furnished, as applicable, on a timely basis, basis (taking into account all applicable grace periods) all material forms, statements, certifications, reports reports, statements and documents required to be filed or furnished by it with or to the SEC pursuant to the Securities Act and the Exchange Act or the Securities Act since June 30January 1, 2014 2018 (the “Applicable Date”) (the all such forms, statementscertificates, reports reports, statements and documents filed with or furnished to the SEC since after the Applicable Date Date, including all exhibits and those filed with or furnished to the SEC subsequent to the date of this Agreementother information incorporated therein, in each case as amendedamendments and supplements thereto, collectively, the “Company SEC Reports”). Each of the Company SEC Reports, at the time of its filing or being furnished complied (or, if not yet filed or furnishedamended, will comply as of the time of such amendment), complied as to form in all material respects with the applicable requirements of the Securities Act, the Exchange Act and the Xxxxxxxx-Xxxxx Act of 2002 (the “Xxxxxxxx-Xxxxx Act”), and any rules and regulations promulgated thereunder applicable to the Company Reports. As of their respective dates (or, if amended prior to the date of this Agreementamended, as of the date of such amendment), the Company SEC Reports did not, and any Company Reports filed with or furnished to the SEC subsequent to the date of this Agreement will not, not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements made therein, in light of the circumstances in which they were made, not misleading. As of the date hereof, there are no outstanding or unresolved comments from the SEC staff with respect to any of the Company SEC Reports, and, to the Knowledge of the Company, none of the Company SEC Reports is the subject of ongoing SEC review, outstanding SEC comment or outstanding SEC investigation.
(b) The Company is in compliance in all material respects with the applicable listing has established and corporate governance rules and regulations of Nasdaq.
(c) The Company maintains “disclosure controls and procedures procedures” and “internal controls over financial reporting” (as such terms are defined in paragraphs (e) and (f), respectively, of Rule 13a-15 under the Exchange Act) as required by Rule Rules 13a-15 or and 15d-15 under the Exchange Act. Such disclosure controls and procedures are designed and maintained to ensure provide reasonable assurance that material information required to be disclosed by the Company in its filings with the SEC under reports and other documents that it files or furnishes pursuant to the Exchange Act is recorded and reported on a timely basis to the individuals responsible for the preparation of the Company’s filings with the SEC under and other public disclosure documents. Since the Exchange Act. The Applicable Date, neither the Company maintains internal control over financial reporting nor, to the Knowledge of the Company, its independent registered public accounting firm has identified, been made aware of or received any written notification of any (A) “significant deficiency,” (B) “material weakness” (as defined in Rule 13a-15 or 15d-15, as applicable, under the Exchange Act). Such internal control over financial reporting is designed to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with GAAP. The Company has disclosed, based on the most recent evaluation of its Chief Executive Officer and its Chief Financial Officer prior to the date of this Agreement, to the Company’s auditors and the audit committee of the Company’s Board of Directors ) or (xC) any significant deficiencies and material weaknesses fraud in the design or operation of its the Company’s internal controls over financial reporting that are reasonably likely to adversely affect the Company’s ability to record, process, summarize and report financial information and (y) any fraud, whether or not material, that involves management or other employees who have a significant role in the Company’s preparation of financial statements or the internal control over financial reporting. The Company has made available prior to the date of this Agreement to Parent (I) either materials relating to or a summary of any disclosure of matters described in clauses (x) or (y) in the preceding sentence made reporting utilized by management of the Company to and its auditors and audit committee on or after the Applicable Date and prior to the date of this Agreement and Subsidiaries.
(IIc) any material communication on or after the Applicable Date and prior to the date of this Agreement made by management of the Company or its auditors to the audit committee as required by the listing standards of Nasdaq, the audit committee’s charter or professional standards of the Public Company Accounting Oversight Board. Since the Applicable Date and prior to Date, the date of this Agreement, no complaints from any source regarding a Company has been in compliance in all material violation of accounting procedures, internal accounting controls or auditing matters or compliance respects with Law, including from Company Employees regarding questionable accounting, auditing or legal compliance matters have, to the Knowledge applicable provisions of the Company, been received by Xxxxxxxx-Xxxxx Act and the Companyapplicable listing and corporate governance rules and regulations of the NASDAQ.
(d) Each of the audited annual consolidated balance sheets financial statements and the unaudited quarterly consolidated financial statements of the Company and its consolidated Subsidiaries included in or incorporated by reference into the Company SEC Reports (including the related notes and schedulesschedules and the consolidated results of operations and cash flows for the periods set forth therein) (collectively, the “Company Financial Statements”) fairly presents or, in the case of Company Reports filed after the date of this Agreement, will fairly present, in each case, present in all material respects, the consolidated or combined financial position of the Company and its Subsidiaries, consolidated or combined Subsidiaries as of the date of such balance sheet, their dates and each of the consolidated statements results of operations, operations and cash flows and changes in stockholders’ equity (deficit) included in or incorporated by reference into the Company Reports (including any related notes and schedules) fairly presents, or, in the case of Company Reports filed after the date of this Agreement, will fairly present, in each case, in all material respects, the results of operations, retained earnings (loss) and changes in financial position, as the case may be, of the Company and its consolidated Subsidiaries for the periods set forth therein (subject, in the case of unaudited statements, to the absence of notes and to normal year-end audit adjustments that are not or will not be material in amount or effectadjustments), in each case in accordance with GAAP consistently applied during the periods involved, except as may be noted therein or in the notes thereto.
(e) No Subsidiary of the Company is subject to the periodic reporting requirements of the Exchange Act or is otherwise required to file any periodic forms, reports, schedules, statements or other documents with the SEC.
(f) Neither the Company nor any of its Subsidiaries has incurred any Indebtednessis, or issued or sold has any debt securities or rights commitment to acquire become, a party to any debt security of the Company joint venture, off-balance sheet partnership or any of its Subsidiariessimilar Contract, the terms of whichincluding any structured finance, special purpose or limited purpose entity or Person, or any “off-balance sheet arrangements” (as defined in Item 303(a) of Regulation S-K under the terms Securities Act), in each case, where the result, purpose or intended effect of such Contract is to avoid disclosure of any instrument under which such Indebtednessmaterial transaction involving, debt securities or rights were issuedmaterial liabilities of, requires the public listing of such Indebtedness, debt securities or rights or the maintenance by the Company or any of its Subsidiaries of registration under in the Exchange ActCompany SEC Reports.
Appears in 1 contract
Samples: Merger Agreement (Cellular Biomedicine Group, Inc.)
Company Reports; Financial Statements. (a) The Company has filed or furnished, as applicable, on a timely basis, all forms, statements, certifications, reports and documents required to be filed or furnished by it with or to the SEC pursuant to the Exchange Act or the Securities Act since June 30December 31, 2014 2018 (the “Applicable Date”) to the date hereof (the forms, statements, certifications, reports and documents filed with or furnished to by the SEC Company since the Applicable Date and those filed with or furnished to by the SEC Company subsequent to the date of this Agreementhereof, in each case as amendedincluding any amendments thereto, the “Company Reports”). Each of the Company Reports, at the time of its filing or being furnished complied or, if not yet filed or furnished, will comply complied in all material respects with the applicable requirements of the Securities Act, Act and the Exchange Act and the Xxxxxxxx-Xxxxx Act of 2002 (the “Xxxxxxxx-Xxxxx Act”), and any rules and regulations promulgated thereunder applicable to the Company Reports. As of their respective dates (or, if amended prior to the date of this Agreementhereof, as of the date of such amendment), the Company Reports Reports, when taken as a whole, did not, and any Company Reports filed with or furnished to the SEC subsequent to the date of this Agreement will not, not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements made therein, in light of the circumstances in which they were made, not misleading. To the knowledge of the Company, as of the date hereof, there are no outstanding or unresolved comments from the SEC staff with respect to the Company Reports and none of the Company Reports is the subject of ongoing SEC review or investigation.
(b) The Company is in compliance in all material respects with the applicable listing and corporate governance rules and regulations of Nasdaq.
(c) The Company maintains disclosure controls and procedures required by Rule 13a-15 or 15d-15 under the Exchange Act. Such disclosure controls and procedures are designed to ensure that information required to be disclosed by the Company in its filings with the SEC under the Exchange Act is recorded and reported on a timely basis to the individuals responsible for the preparation of the Company’s filings with the SEC under the Exchange Act. The Company maintains internal control over financial reporting (as defined in Rule 13a-15 or 15d-15, as applicable, under the Exchange Act). Such internal control over financial reporting is designed to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with GAAP. The Company has disclosed, based on the most recent evaluation of its Chief Executive Officer and its Chief Financial Officer prior to the date of this Agreement, to the Company’s auditors and the audit committee of the Company’s Board of Directors (x) any significant deficiencies and material weaknesses in the design or operation of its internal controls over financial reporting that are reasonably likely to adversely affect the Company’s ability to record, process, summarize and report financial information and (y) any fraud, whether or not material, that involves management or other employees who have a significant role in the Company’s internal control over financial reporting. The Company has made available prior to the date of this Agreement to Parent (I) either materials relating to or a summary of any disclosure of matters described in clauses (x) or (y) in the preceding sentence made by management of the Company to its auditors and audit committee on or after the Applicable Date and prior to the date of this Agreement and (II) any material communication on or after the Applicable Date and prior to the date of this Agreement made by management of the Company or its auditors to the audit committee as required by the listing standards of Nasdaq, the audit committee’s charter or professional standards of the Public Company Accounting Oversight Board. Since the Applicable Date and prior to the date of this Agreement, no complaints from any source regarding a material violation of accounting procedures, internal accounting controls or auditing matters or compliance with Law, including from Company Employees regarding questionable accounting, auditing or legal compliance matters have, to the Knowledge of the Company, been received by the Company.
(d) Each of the consolidated balance sheets included in or incorporated by reference into the Company Reports (including the related notes and schedules) fairly presents or, in the case of Company Reports filed after the date of this Agreement, will fairly present, in each case, in all material respects, respects the consolidated financial position of the Company and its Subsidiaries, consolidated Subsidiaries as of the its date of such balance sheet, and each of the Company’s consolidated statements of operationsoperations and comprehensive loss, cash flows and changes in stockholders’ equity (deficit) and cash flows included in or incorporated by reference into the Company Reports (including any related notes and schedules) fairly presents, or, in the case of Company Reports filed after the date of this Agreement, will fairly present, in each case, presents in all material respectsrespects the financial position, the results of operations, retained earnings (loss) operations and changes in financial positioncash flows, as the case may be, of the Company and its consolidated Subsidiaries for the periods set forth therein (subject, in the case of unaudited statements, to notes and normal year-end audit adjustments that are not or will not be material in amount or effectadjustments), in each case in accordance with GAAP consistently applied during the periods involvedGAAP, except as may be noted therein or in the notes theretotherein.
(e) Neither the Company nor any of its Subsidiaries has incurred any Indebtedness, or issued or sold any debt securities or rights to acquire any debt security of the Company or any of its Subsidiaries, the terms of which, or the terms of any instrument under which such Indebtedness, debt securities or rights were issued, requires the public listing of such Indebtedness, debt securities or rights or the maintenance by the Company or any of its Subsidiaries of registration under the Exchange Act.
Appears in 1 contract
Company Reports; Financial Statements. (a) The Company has filed or furnished, as applicable, on a timely basis, all forms, statements, certifications, reports and documents required to be filed or furnished by it with or to the SEC U.S. Securities and Exchange Commission (the “SEC”) pursuant to the Exchange Act or the Securities Act since June 30December 31, 2014 2019 (the “Applicable Date”) (the forms, statements, reports and documents filed with or furnished to the SEC since the Applicable Date and those filed with or furnished to the SEC subsequent to the date of this Agreement, in each case as amended, the “Company Reports”). Each of the Company Reports, at the time of its filing or being furnished furnished, complied as to form or, if not yet filed or furnished, will comply as to form, in all material respects with the applicable requirements of the Securities Act, the Exchange Act and the Xxxxxxxx-Xxxxx Act of 2002 (the “Xxxxxxxx-Xxxxx Act”), and any rules and regulations promulgated thereunder applicable to the Company Reports. As of their respective filing dates (or, if amended or superseded by a filing prior to the date of this Agreement, as of on the date of such amendmentamended or superseded filing), the Company Reports did not, and any Company Reports filed with or furnished to the SEC subsequent to the date of this Agreement will not, contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements made therein, in light of the circumstances in which they were made, not misleading. There are no outstanding or unresolved comments in comment letters from the SEC or the Staff with respect to any of the Company Reports. To the Knowledge of the Company, none of the Company Reports is the subject of ongoing SEC review or outstanding SEC investigation. None of the Company’s Subsidiaries is required to file any forms, reports, registrations, statements or other documents with the SEC as a registrant.
(b) The Company is in compliance in all material respects with the applicable listing and corporate governance rules and regulations of Nasdaqthe NASDAQ.
(c) The Company maintains and each of the Company’s Subsidiaries maintain disclosure controls and procedures (as defined in, and required by by, Rule 13a-15 13a-15(e) or 15d-15 15d-15(e) under the Exchange Act. Such disclosure controls and procedures ) that are designed sufficient to ensure provide reasonable assurance that material information required to be disclosed by the Company in its filings with the SEC under the Exchange Act is recorded and reported on a timely basis to the individuals responsible for the preparation of the Company’s filings with the SEC under the Exchange Act. The Company maintains internal control controls over financial reporting (as defined in in, and required by, Rule 13a-15 13a-15(f) or 15d-1515d-15(f), as applicable, under the Exchange Act). Such internal control over financial reporting is designed ) sufficient to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with GAAP. The Company has disclosed, based on Since the most recent evaluation of its Chief Executive Officer and its Chief Financial Officer prior to the date of this AgreementApplicable Date, to the Company’s auditors and the audit committee Knowledge of the Company’s Board , the Company has not received any notification of Directors (xi) any “significant deficiencies and deficiencies” or “material weaknesses weaknesses” in the design or operation of its internal controls over financial reporting that are reasonably likely to adversely affect the Company’s ability to recordreporting, process, summarize and report financial information and (yii) any fraud, whether or not material, that involves management or other employees who have a significant role in the Company’s internal control over financial reporting. The Company has made available prior to the date of this Agreement to Parent (I) either materials relating to or a summary of any disclosure of matters described in clauses (x) reporting or (y) in the preceding sentence made by management of the Company to its auditors and audit committee on or after the Applicable Date and prior to the date of this Agreement and (IIiii) any material communication on or after the Applicable Date and prior to the date of this Agreement made by management of the Company or its auditors to the audit committee as required by the listing standards of Nasdaq, the audit committee’s charter or professional standards of the Public Company Accounting Oversight Board. Since the Applicable Date and prior to the date of this Agreement, no complaints from any source regarding a material violation of accounting procedures, internal accounting controls or auditing matters or compliance with Lawmatters, including from employees of the Company Employees or its Subsidiaries regarding questionable accounting, auditing or legal compliance matters havein each case that would be reasonably expected to adversely affect the Company’s ability to record, process, summarize and report financial information. To the Knowledge of the Company, no executive officer of the Company has failed, in the last two (2) years, to make the certifications required of him or her under Sections 302 or 906 of the Xxxxxxxx-Xxxxx Act with respect to any Company Report, except as disclosed in certifications filed with such Company Report. To the Knowledge of the Company, neither the Company nor any of its executive officers has, in the last two (2) years, received written notice from any Governmental Entity challenging or questioning the accuracy, completeness, form or manner of filing of such certifications. Since the Applicable Date, to the Knowledge of the Company, the Company and each of its officers and directors, have been received by and are in compliance in all material respects with the Company.
(d) applicable provisions of the Xxxxxxxx-Xxxxx Act and the rules and regulations promulgated thereunder. Each of the consolidated balance sheets included in or incorporated by reference into the Company Reports (including the related notes and schedules) fairly presents or, in the case of Company Reports filed after the date of this Agreement, will fairly presentpresents, in each case, in all material respects, the consolidated financial position of the Company and its Subsidiaries, as of the date of such balance sheet, and each of the consolidated statements of operationsincome, cash flows and changes in stockholders’ equity (deficit) included in or incorporated by reference into the Company Reports (including any related notes and schedules) fairly presents, or, in the case of Company Reports filed after the date of this Agreement, will fairly present, in each case, in all material respects, the results of operations, retained earnings (loss) and changes in financial position, as the case may be, of the Company and its Subsidiaries for the periods set forth therein (subject, in the case of unaudited statements, to notes and normal year-end audit adjustments that are not or will not be material in amount or effect), in each case in accordance with GAAP consistently applied during the periods involved, except as may be noted therein or in the notes thereto.
(ed) Neither the Company nor any of its Subsidiaries has incurred any Indebtednessoutstanding Indebtedness (other than Financial Assurances to the extent they have been drawn upon and promptly reimbursed), or issued or sold any debt securities or rights to acquire any debt security of the Company or any of its Subsidiaries, the terms of which, or the terms of any instrument under which such Indebtedness, debt securities or rights were issued, requires the public listing of such Indebtedness, debt securities or rights or the maintenance by the Company or any of its Subsidiaries of registration under the Exchange Act. As of the date of this Agreement, except as set forth in Section 4.5(d) of the Company Disclosure Letter, neither the Company nor any of its Subsidiaries has any outstanding indebtedness for borrowed money or indebtedness evidenced by bonds, debentures, notes or similar instruments.
(e) Neither the Company nor any of its Subsidiaries is, or has any commitment to become, a party to any joint venture, off-balance sheet partnership or any similar Contract (including any Contract relating to any transaction or relationship between or among the Company and any of its Subsidiaries, on the one hand, and any unconsolidated affiliate, on the other hand), including any structured finance, special purpose or limited purpose entity or Person, or any “off-balance sheet arrangements” (as defined in Item 303(a) of Regulation S K under the Securities Act), where the result, purpose or intended effect of such Contract is to avoid disclosure of any material transaction involving, or material liabilities of, the Company or any of its Subsidiaries in the Company Reports (including any audited financial statements and unaudited interim financial statements of the Company included therein).
Appears in 1 contract
Samples: Merger Agreement (Covetrus, Inc.)
Company Reports; Financial Statements. (ai) The Company has filed or furnished, as applicable, on a timely basis, basis all forms, statements, certifications, reports reports, schedules and documents (including exhibits and other information incorporation therein) required to be filed or furnished by it with or to the SEC pursuant to the Exchange Act or the Securities Act since June 30December 27, 2014 2015 (the “Applicable Date”) (the forms, statements, reports and documents filed with or furnished to the SEC since the Applicable Date and those filed with or furnished to the SEC subsequent to the date of this Agreement, in each case as amendedincluding any amendments thereto, the “Company Reports”). Each of the Company Reports, at the time of its filing or being furnished complied or(or in the case of a registration statement under the Securities Act, at the time such registration statement was declared effective by the SEC) complied, or if not yet filed or furnished, will comply when so filed or furnished comply, in all material respects with the applicable requirements of the Securities Act, the Exchange Act and the XxxxxxxxSxxxxxxx-Xxxxx Act of 2002 (the “XxxxxxxxSxxxxxxx-Xxxxx Act”), and any rules and regulations promulgated thereunder applicable to the Company Reports. As of the date of this Agreement, there are no outstanding or unresolved comments in comment letters received from the SEC with respect to any Company Reports and none of the Company Reports (other than confidential treatment requests) is the subject of ongoing SEC review. There are no internal investigations, any SEC inquiries or investigations or other governmental inquiries or investigations pending or, to the Knowledge of the Company, threatened, in each case regarding any accounting practices of the Company (other than any such investigations or inquiries beginning or initiated after the date of this Agreement, that would not, individually or in the aggregate, reasonably be expected to materially and adversely affect the Company and its Subsidiaries taken as a whole). As of their respective dates (or, if amended prior to the date of this Agreement, as of the date of such amendment), the Company Reports did not, and any none of the Company Reports filed with or furnished to the SEC subsequent to the date of this Agreement will notwhen so filed or furnished, contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements made therein, in light of the circumstances in which they were made, not misleading.
(b) . The Company is in compliance in all material respects with the applicable listing and corporate governance rules and regulations of Nasdaqthe NYSE.
(cii) The Company maintains disclosure controls and procedures required by Rule 13a-15 or 15d-15 under the Exchange Act. Such disclosure controls and procedures are reasonably designed to ensure that all material information required to be disclosed by the Company in its filings with the SEC under the Exchange Act is recorded and reported on a timely basis to the individuals responsible for the preparation of the Company’s filings with the SEC under the Exchange Actand other public disclosure documents. The Company maintains internal control over financial reporting (as defined in and meeting the requirements of Rule 13a-15 or 15d-15, as applicable, under the Exchange Act). Such internal control over financial reporting is designed to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with GAAP and includes policies and procedures that (A) pertain to the maintenance of records that in reasonable detail accurately and fairly reflect the transactions and dispositions of the assets of the Company and its Subsidiaries, as applicable, (B) provide reasonable assurance that transactions are recorded as necessary to permit preparation of financial statements in accordance with GAAP, and that receipts and expenditures of the Company and its Subsidiaries, as applicable, are being made only in accordance with authorizations of management and directors of the Company, and (C) provide reasonable assurance regarding prevention or timely detection of unauthorized acquisition, use or disposition of the Company’s or any of its Subsidiaries’, as applicable, assets that could have a material effect on its financial statements. The Company has disclosed, based on the most recent evaluation of its Chief Executive Officer chief executive officer and its Chief Financial Officer chief financial officer prior to the date of this Agreement, to the Company’s its auditors and the audit committee of the Company’s Company Board of Directors (x1) any significant deficiencies and material weaknesses in the design or operation of its internal controls over financial reporting that are reasonably likely to adversely affect the Company’s ’s, ability to record, process, summarize and report financial information and has identified for the Company’s auditors and audit committee of the Company Board any material weaknesses in internal control over financial reporting and (y2) any fraud, whether or not material, that involves management or other employees who have a significant role in the Company’s internal control over financial reporting. The Company has made available prior to Parent as of the date of this Agreement to Parent (I) either materials relating to or a summary of any such disclosure of matters described in clauses (x) or (y) in the preceding sentence made by management of to the Company to its auditors Company’s independent registered public accounting firm and audit committee on or after since the Applicable Date and prior to the date of this Agreement and (II) any material communication on or after the Applicable Date and prior to the date of this Agreement made by management of the Company or its auditors to the audit committee as required by the listing standards of Nasdaq, the audit committee’s charter or professional standards of the Public Company Accounting Oversight BoardDate. Since the Applicable Date and prior to the date of this AgreementDate, no material complaints from any source regarding a material violation of accounting proceduresaccounting, internal accounting controls or auditing matters or compliance with Lawmatters, including and no material concerns from Company Employees regarding questionable accountingaccounting or auditing matters, auditing or legal compliance matters have, to the Knowledge of the Company, have been received by the Company.
(diii) Each of the consolidated balance sheets included in or incorporated by reference into the Company Reports (including the related notes and schedules) fairly presents or, in the case of Company Reports filed after the date of this Agreement, will fairly present, in each case, in all material respects, the consolidated financial position of the Company and its Subsidiaries, as of the date of such balance sheet, and each of the consolidated statements of operations, cash flows and changes in stockholders’ equity (deficit) included in or incorporated by reference into the Company Reports (including any related notes and schedules) fairly presents, or, in the case of Company Reports filed after the date of this Agreement, will fairly presentpresent in all material respects, the consolidated financial position of the Company and its consolidated Subsidiaries as of its date and each of the consolidated statements of operations, comprehensive income, changes in equity and cash flows included in or incorporated by reference into the Company Reports, including any related notes and schedules, fairly presents in all material respects, or, in each casethe case of Company Reports filed after the date of this Agreement, will fairly present in all material respects, the results of operations, cash flows, retained earnings (loss) and changes in financial position, as the case may be, of the Company and its consolidated Subsidiaries for the periods set forth therein (subject, in the case of unaudited statements, to notes and normal year-end audit adjustments that are not or will not be material in amount or effect), in each case in accordance with GAAP consistently applied during the periods involved, except as may be noted therein or in the notes theretotherein.
(e) Neither the Company nor any of its Subsidiaries has incurred any Indebtedness, or issued or sold any debt securities or rights to acquire any debt security of the Company or any of its Subsidiaries, the terms of which, or the terms of any instrument under which such Indebtedness, debt securities or rights were issued, requires the public listing of such Indebtedness, debt securities or rights or the maintenance by the Company or any of its Subsidiaries of registration under the Exchange Act.
Appears in 1 contract
Company Reports; Financial Statements. (a) The Since December 31, 2014, the Company has filed or furnished, as applicable, on a timely basis, furnished all forms, statements, certifications, reports and documents with the SEC that have been required to be filed or furnished by it with or under applicable Laws prior to the SEC pursuant to the Exchange Act or the Securities Act since June 30, 2014 date hereof (the “Applicable Date”) (the all such forms, statements, reports and documents documents, including exhibits and schedules, filed with or furnished to the SEC since the Applicable Date and those filed December 31, 2014, together with or furnished to the SEC subsequent to the date of this Agreement, in each case as amendedany amendments thereto, the “Company Reports”). Each of the Company Reports, at the time As of its filing or being furnished complied furnishing date (or, if not yet filed amended or furnishedsuperseded by a filing or furnishing prior to the date of this Agreement, will comply on the date of such amended or superseded filing or furnishing), (a) each Company Report complied as to form in all material respects with the applicable requirements of the Securities Act, the Exchange Act and the Xxxxxxxx-Xxxxx Act of 2002 (the “XxxxxxxxSxxxxxxx-Xxxxx Act”), as the case may be, each as in effect on the date such Company Report was filed or furnished, and any rules and regulations promulgated thereunder applicable to the (b) each Company Reports. As of their respective dates (or, if amended prior to the date of this Agreement, as of the date of such amendment), the Company Reports Report did not, and any Company Reports filed with or furnished to the SEC subsequent to the date of this Agreement will not, not contain any untrue statement of a material fact or omit to state a any material fact required to be stated therein or necessary in order to make the statements made therein, in the light of the circumstances in under which they were made, not misleading. As of the date hereof, there are no material outstanding or unresolved comments received by the Company from the SEC with respect to any of the Company Reports. No executive officer of the Company has failed to make the certifications required of him or her under Section 302 or 906 of the Sxxxxxxx-Xxxxx Act with respect to any Company Report, except as disclosed in certifications filed with the Company Reports. To the Knowledge of the Company, as of the date hereof, no Company Report is the subject of ongoing review, comment or investigation by the SEC.
(b) The Company has at all times since November 19, 2014 been and currently is a “foreign private issuer” as such term is defined in compliance in all material respects with the applicable listing and corporate governance rules and regulations of NasdaqExchange Act.
(c) The consolidated annual financial statements of the Company and its Subsidiary included in the Company Reports filed prior to the date hereof with the SEC (the “Financial Statements”) fairly present, in all material respects, the consolidated financial position of the Company and its Subsidiary as of the dates thereof and the consolidated results of operations and cash flows for the periods then ended, in each case in accordance with IFRS consistently applied during the periods and at the dates involved (except as may be indicated therein or as otherwise permitted). The Company’s Subsidiary is not subject to periodic reporting requirements of the Exchange Act.
(d) The Company maintains “disclosure controls and procedures procedures” and “internal control over financial reporting” (as such terms are defined in paragraphs (e) and (f), respectively, of Rule 13a-15 under the Exchange Act) as required by Rule 13a-15 or 15d-15 under the Exchange Act. Such The Company’s disclosure controls and procedures are reasonably designed to ensure that all material information required to be disclosed by the Company in its filings with the SEC reports that it files or furnishes under the Exchange Act is recorded recorded, processed, summarized and reported on a timely basis within the time periods specified in the rules and forms of the SEC, and that all such material information is accumulated and communicated to the individuals responsible for the preparation of the Company’s filings with management, as appropriate to allow timely decisions regarding required disclosure and to make the SEC certifications required pursuant to Sections 302 and 906 of the Sxxxxxxx-Xxxxx Act.
(e) The Company maintains a system of “internal control over financial reporting” (as defined in Rules 13a-15 or 15d-15 under the Exchange Act. The Company maintains internal control over financial reporting (as defined in Rule 13a-15 or 15d-15, as applicable, under the Exchange Act). Such internal control over financial reporting ) which is designed to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements Financial Statements for external purposes in accordance with GAAP. The Company has disclosed, based on the most recent evaluation of its Chief Executive Officer and its Chief Financial Officer prior to the date of this Agreement, to the Company’s auditors and the audit committee of the Company’s Board of Directors (x) any significant deficiencies and material weaknesses in the design or operation of its internal controls over financial reporting that are reasonably likely to adversely affect the Company’s ability to record, process, summarize and report financial information and (y) any fraud, whether or not material, that involves management or other employees who have a significant role in the Company’s internal control over financial reporting. The Company has made available prior to the date of this Agreement to Parent (I) either materials relating to or a summary of any disclosure of matters described in clauses (x) or (y) in the preceding sentence made by management of the Company to its auditors and audit committee on or after the Applicable Date and prior to the date of this Agreement and (II) any material communication on or after the Applicable Date and prior to the date of this Agreement made by management of the Company or its auditors to the audit committee as required by the listing standards of Nasdaq, the audit committee’s charter or professional standards of the Public Company Accounting Oversight Board. Since the Applicable Date and prior to the date of this Agreement, no complaints from any source regarding a material violation of accounting procedures, internal accounting controls or auditing matters or compliance with Law, including from Company Employees regarding questionable accounting, auditing or legal compliance matters have, to the Knowledge of the Company, been received by the CompanyIFRS.
(d) Each of the consolidated balance sheets included in or incorporated by reference into the Company Reports (including the related notes and schedules) fairly presents or, in the case of Company Reports filed after the date of this Agreement, will fairly present, in each case, in all material respects, the consolidated financial position of the Company and its Subsidiaries, as of the date of such balance sheet, and each of the consolidated statements of operations, cash flows and changes in stockholders’ equity (deficit) included in or incorporated by reference into the Company Reports (including any related notes and schedules) fairly presents, or, in the case of Company Reports filed after the date of this Agreement, will fairly present, in each case, in all material respects, the results of operations, retained earnings (loss) and changes in financial position, as the case may be, of the Company and its Subsidiaries for the periods set forth therein (subject, in the case of unaudited statements, to notes and normal year-end audit adjustments that are not or will not be material in amount or effect), in each case in accordance with GAAP consistently applied during the periods involved, except as may be noted therein or in the notes thereto.
(e) Neither the Company nor any of its Subsidiaries has incurred any Indebtedness, or issued or sold any debt securities or rights to acquire any debt security of the Company or any of its Subsidiaries, the terms of which, or the terms of any instrument under which such Indebtedness, debt securities or rights were issued, requires the public listing of such Indebtedness, debt securities or rights or the maintenance by the Company or any of its Subsidiaries of registration under the Exchange Act.
Appears in 1 contract
Samples: Merger Agreement (NeuroDerm Ltd.)
Company Reports; Financial Statements. (ai) The Company has filed made available to Parent or furnished, as applicable, on a timely basis, its Affiliates all forms, statements, certifications, reports and documents required to be filed or furnished by it with or to the SEC Securities and Exchange Commission (“SEC”) pursuant to the Exchange Act or the Securities Act of 1933, as amended (the “Securities Act”) since June 30March 31, 2014 2005 (the “Applicable Date”) (the forms, statements, reports and documents filed with or furnished to the SEC since the Applicable Date and those filed with or furnished to the SEC subsequent to the date of this Agreementhereof, in each case as amendedincluding any amendments thereto, the “Company Reports”). Each of the Company ReportsReports filed since the Applicable Date and prior to the date hereof, at the time of its filing (or being furnished complied or, if not yet filed or furnished, will comply in all material respects with the applicable requirements of the Securities Act, the Exchange Act and the Xxxxxxxx-Xxxxx Act of 2002 (the “Xxxxxxxx-Xxxxx Act”), and any rules and regulations promulgated thereunder applicable to the Company Reports. As of their respective dates (or, if amended prior to the date of this Agreementamended, as of the date of the last such amendment)amendment prior to the date hereof) with or being furnished to the SEC, the Company Reports did not, and any Company Reports filed with or furnished to the SEC subsequent to the date of this Agreement hereof will not, contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements made therein, in light of the circumstances in which they were made, not misleading. The Company Reports complied, when filed, as to form in all material respects with the provisions of the Exchange Act and the Securities Act, as applicable, and the rules and regulations of the SEC thereunder.
(bii) The As of the date hereof, the Company is in compliance in all material respects with the applicable listing and corporate governance rules and regulations of Nasdaqthe American Stock Exchange.
(ciii) As of the date hereof, the Company is in compliance in all material respects with the Xxxxxxxx-Xxxxx Act of 2002 and any rules and regulations promulgated thereunder.
(iv) Each of the consolidated balance sheets included in or incorporated by reference into the Company Reports filed since the Applicable Date and prior to the date hereof (including the related notes and schedules) fairly presents in all material respects, or, in the case of Company Reports filed after the date hereof, will fairly present in all material respects the consolidated financial position of the Company and its consolidated Subsidiaries as of its date and each of the consolidated statements of operations, stockholders’ equity and cash flows included in or incorporated by reference into the Company Reports filed since the Applicable Date and prior to the date hereof (including any related notes and schedules) fairly presents in all material respects, or in the case of Company Reports filed after the date hereof, will fairly present in all material respects the results of operations, retained earnings (loss) and changes in financial position, as the case may be, for the periods set forth therein (subject, in the case of unaudited statements, to notes and year-end audit adjustments), in each case in accordance with U.S. generally accepted accounting principles (“GAAP”) consistently applied during the periods involved, except as may be noted therein.
(v) The Company maintains disclosure controls and procedures required by Rule 13a-15 or 15d-15 under 13a-15(e) of the Exchange Act. Such disclosure controls and procedures are reasonably designed to ensure that material information required to be disclosed by the Company in its filings with the SEC under the Exchange Act is recorded accumulated and reported on a timely basis communicated to the individuals responsible for the preparation of the Company’s filings with the SEC under the Exchange Actand other public disclosure documents. The Company maintains internal control over financial reporting (as defined in Rule 13a-15 or 15d-15, as applicable, under the Exchange Act). Such internal control over financial reporting is designed to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with GAAP. The Company has disclosed, based on the its most recent evaluation of its Chief Executive Officer and its Chief Financial Officer prior to the date of this Agreementhereof, to the Company’s outside auditors and the audit committee of the Company’s Company Board of Directors (xA) any significant deficiencies and material weaknesses in the design or operation of its internal controls over financial reporting that (as defined in Rule 13a-15(f) of the Exchange Act) which are reasonably likely to adversely affect in any material respect the Company’s ability to record, process, summarize and report financial information data and (yB) any fraudfraud known to the Company, whether or not material, that involves management or other employees who have a significant role in the Company’s internal control controls over financial reporting. The Since the Applicable Date, any material change in internal control over financial reporting or failure or inadequacy of disclosure controls required to be disclosed in any Company Report has made available prior to the date of this Agreement to Parent been so disclosed.
(Ivi) either materials relating to or a summary of any disclosure of matters described Except as set forth in clauses (xSection 3.1(e)(vi) or (y) in the preceding sentence made by management of the Company to its auditors and audit committee on or after the Applicable Date and prior to the date of this Agreement and (II) any material communication on or after the Applicable Date and prior to the date of this Agreement made by management of the Company or its auditors to the audit committee as required by the listing standards of Nasdaq, the audit committee’s charter or professional standards of the Public Company Accounting Oversight Board. Since the Applicable Date and prior to the date of this AgreementDisclosure Letter, no complaints from any source regarding a material violation of accounting procedures, internal accounting controls officer or auditing matters or compliance with Law, including from Company Employees regarding questionable accounting, auditing or legal compliance matters have, to the Knowledge of the Company, been received by the Company.
(d) Each of the consolidated balance sheets included in or incorporated by reference into the Company Reports (including the related notes and schedules) fairly presents or, in the case of Company Reports filed after the date of this Agreement, will fairly present, in each case, in all material respects, the consolidated financial position of the Company and its Subsidiaries, as of the date of such balance sheet, and each of the consolidated statements of operations, cash flows and changes in stockholders’ equity (deficit) included in or incorporated by reference into the Company Reports (including any related notes and schedules) fairly presents, or, in the case of Company Reports filed after the date of this Agreement, will fairly present, in each case, in all material respects, the results of operations, retained earnings (loss) and changes in financial position, as the case may be, of the Company and its Subsidiaries for the periods set forth therein (subject, in the case of unaudited statements, to notes and normal year-end audit adjustments that are not or will not be material in amount or effect), in each case in accordance with GAAP consistently applied during the periods involved, except as may be noted therein or in the notes thereto.
(e) Neither the Company nor any of its Subsidiaries has incurred any Indebtedness, or issued or sold any debt securities or rights to acquire any debt security director of the Company or any of its Subsidiaries, the terms of which, Subsidiaries or the terms of any instrument under which such Indebtedness, debt securities or rights were issued, requires the public listing of such Indebtednessofficers’ or directors’ immediate family members or Affiliates has any material interest, debt securities direct or rights indirect, in (x) any Contract or commitment to which the maintenance Company or any of its Subsidiaries is a party or by which any of their properties or assets are bound, (y) any property or asset used or owned by the Company or any of its Subsidiaries or (z) any material supplier to the Company or its Subsidiaries. Ownership of registration securities of a company whose securities are registered under the Exchange ActAct of 5% or less of any class of such security shall not be deemed to be an interest for purpose of this Section 3.1(e)(vi).
Appears in 1 contract
Company Reports; Financial Statements. (a) The Since May 31, 2010 (the “Applicable Date”), the Company has filed or furnished, as applicable, on a timely basis, all forms, statements, certifications, reports and documents required to be filed or furnished by it with or to the SEC pursuant to under the Exchange Act or the Securities Act since June 30, 2014 (the “Applicable Date”) (the forms, statements, reports and documents filed with or furnished to the SEC since the Applicable Date and those filed with Date, including any amendments or furnished to the SEC subsequent to the date of this Agreement, in each case as amended, supplements thereto the “Company Reports”). Each As of their respective dates, or, if amended or superseded by a subsequent filing, as of the date of the last such amendment or superseding filing prior to the date hereof, each of the Company Reports, at the time of its filing or being furnished Reports complied or, if not yet filed or furnished, will comply in all material respects with the applicable requirements of the Securities Act, the Exchange Act and the Xxxxxxxx-Xxxxx Act of 2002 (2002, as the “Xxxxxxxx-Xxxxx Act”)case may be, and any rules and regulations promulgated thereunder applicable to the Company Reports. As of their respective dates (or, if amended prior to the date of this Agreement, as of the date of such amendment)dates, the Company Reports did not, and any Company Reports filed with or furnished to the SEC subsequent to the date of this Agreement will not, not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements made therein, in light of the circumstances in which they were made, not misleading, except to the extent that the information in such Company Report has been amended or superseded by a later Company Report filed prior to the date hereof. To the Knowledge of the Company, none of the Company Reports is the subject of ongoing SEC review or outstanding SEC investigation. There are no outstanding or unresolved comments in comment letters received from the SEC or its staff. There has been no material correspondence between the SEC and the Company since the Applicable Date that is not available on XXXXX. None of the Company Subsidiaries is subject to the reporting requirements of Section 13(a) or 15(d) under the Exchange Act.
(b) The To the Knowledge of the Company, the Company is in compliance in all material respects with (i) the applicable listing and corporate governance rules and regulations of the Nasdaq Stock Market (“Nasdaq”) and (ii) the applicable provisions of the Xxxxxxxx-Xxxxx Act.
(c) The Company has established and maintains disclosure controls and procedures required by Rule 13a-15 13a-15(e) or 15d-15 15d-15(e) under the Exchange Act. Such disclosure controls and procedures are are, in all material respects, designed to ensure with the objective of ensuring that information required to be disclosed by the Company in its filings with the SEC under the Exchange Act is recorded and reported on a timely basis to the individuals responsible for the preparation of the Company’s filings with the SEC under the Exchange Actand other public disclosure documents. The Company maintains internal control over financial reporting (as defined in Rule 13a-15 13a-15(f) or 15d-1515d-15(f), as applicable, under the Exchange Act). Such internal control over financial reporting is designed is, in all material respects, sufficient to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with United States generally accepted accounting principles (“GAAP. The Company has disclosed, based on the most recent evaluation of its Chief Executive Officer and its Chief Financial Officer prior to the date of this Agreement, to the Company’s auditors and the audit committee of the Company’s Board of Directors (x) any significant deficiencies and material weaknesses in the design or operation of its internal controls over financial reporting that are reasonably likely to adversely affect the Company’s ability to record, process, summarize and report financial information and (y) any fraud, whether or not material, that involves management or other employees who have a significant role in the Company’s internal control over financial reporting. The Company has made available prior to the date of this Agreement to Parent (I) either materials relating to or a summary of any disclosure of matters described in clauses (x) or (y) in the preceding sentence made by management of the Company to its auditors and audit committee on or after the Applicable Date and prior to the date of this Agreement and (II) any material communication on or after the Applicable Date and prior to the date of this Agreement made by management of the Company or its auditors to the audit committee as required by the listing standards of Nasdaq, the audit committee’s charter or professional standards of the Public Company Accounting Oversight Board. Since the Applicable Date and prior to the date of this Agreement, no complaints from any source regarding a material violation of accounting procedures, internal accounting controls or auditing matters or compliance with Law, including from Company Employees regarding questionable accounting, auditing or legal compliance matters have, to the Knowledge of the Company, been received by the Company”).
(d) Each of the consolidated balance sheets included in or incorporated by reference into the Company Reports (including the related notes and schedules) fairly presents or, in the case of Company Reports filed after the date of this Agreement, will fairly present, in each casepresents, in all material respects, the consolidated financial position of the Company and its Subsidiaries, consolidated Subsidiaries as of the its date of such balance sheet, and each of the consolidated statements of operationsincome, shareholders’ equity and cash flows and changes in stockholders’ equity (deficit) included in or incorporated by reference into the Company Reports (including any related notes and schedules) fairly presents, or, in the case of Company Reports filed after the date of this Agreement, will fairly present, in each case, in all material respects, the results of operations, retained earnings (loss) and changes in financial position, as the case may be, of the Company and its consolidated Subsidiaries for the periods set forth therein (except as noted in any of the financial statements included in the Company Reports and subject, in the case of unaudited statements, to notes the lack of footnotes and normal and recurring year-end audit adjustments that are not or will not be material in amount or effectadjustments), in each case in accordance with GAAP consistently applied during the periods involved, except as may be noted therein or in the notes theretotherein.
(e) Neither Except for matters reflected or reserved against in the most recent consolidated balance sheet of the Company (or reflected in the notes to the condensed consolidated financial statements of which such balance sheet is a part) included in the Company Reports, neither the Company nor any of its Subsidiaries has any liabilities or obligations (whether absolute, accrued, contingent, fixed or otherwise) of any nature that would be required under GAAP, as in effect on the date of this Agreement, to be reflected on a consolidated balance sheet of the Company (including the notes thereto), except liabilities and obligations that (i) were incurred any Indebtednesssince the date of such balance sheet in the ordinary course of business consistent with past practice, (ii) are incurred in connection with the transactions contemplated by this Agreement, or issued or sold any debt securities or rights (iii) would not reasonably be expected to acquire any debt security have a Company Material Adverse Effect. There are no unconsolidated Subsidiaries of the Company or any of its Subsidiaries, the terms of which, or the terms off-balance sheet arrangements of any instrument under which such Indebtedness, debt securities or rights were issued, requires the public listing type (including any off-balance sheet arrangement required to be disclosed pursuant to Item 303(a)(4) of such Indebtedness, debt securities or rights or the maintenance by the Company or any of its Subsidiaries of registration Regulation S-K promulgated under the Exchange Securities Act) that have not been so described in the Company’s filings with the SEC nor any obligations to enter into any such arrangements.
Appears in 1 contract
Samples: Merger Agreement (Immucor Inc)
Company Reports; Financial Statements. (a) The Company has filed or furnished, as applicable, on a timely basis, all forms, statements, certifications, reports and documents Company Reports required to be filed or furnished by it with or to the SEC pursuant to the Exchange Act or the Securities Act since June 30SEC. As of their respective filing date or, 2014 (the “Applicable Date”) (the formsif amended, statements, reports and documents filed with or furnished to the SEC since the Applicable Date and those filed with or furnished to the SEC subsequent to as of the date of this Agreementthat last such amendment, in each case as amended, the “Company Reports”). Each of the Company Reports, at the time of its filing or being furnished Report has complied or, if not yet filed or furnished, will comply in all material respects with the applicable requirements of the Securities Act, the Exchange Act and the Xxxxxxxx-Xxxxx Act of 2002 (the “Xxxxxxxx-Xxxxx Exchange Act”), and any rules and regulations promulgated thereunder applicable to the Company Reports. As of their respective dates (or, if amended prior to the date of this Agreement, as applicable, except as would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect. None of the date of such amendment), the Company Reports did notcontained when filed (and, in the case of registration statements and any Company Reports filed with or furnished to proxy statements, on the SEC subsequent to dates of effectiveness and the date dates of this Agreement will notmailing, contain respectively) any untrue statement of a material fact or omit omitted or omits or will omit, as the case may be, to state a material fact required to be stated or incorporated by reference therein or necessary to make the statements made therein, in the light of the circumstances in under which they were or are made, not misleading.
(b) The Company is has made available (including via the SEC's XXXXX system, as applicable) to Parent all of the Company Financial Statements filed with the SEC as of the Business Day prior to the date of this Agreement. The Company Financial Statements fairly present, in compliance conformity in all material respects with GAAP, in each case, consistently applied for the applicable listing periods involved, the consolidated financial position of the Company at the respective dates thereof and corporate governance rules the consolidated results of its operations and regulations changes in cash flows for the respective periods indicated (subject, in the case of Nasdaqunaudited statements, to normal year-end audit adjustments consistent with GAAP).
(c) The There are no liabilities of the Company maintains or any of its Subsidiaries that would be required by GAAP to be reflected on the consolidated balance sheet of the Company and its Subsidiaries other than liabilities (i) disclosed and provided for in the Company Balance Sheet or in the balance sheets included in the Specified Company Reports, (ii) incurred in the ordinary course of business since December 31, 2016, (iii) incurred on behalf of the Company in connection with the transactions contemplated by this Agreement or (iv) which would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect.
(d) Since December 31, 2015, the Company has maintained "disclosure controls and procedures required by Rule 13a-15 or 15d-15 procedures" (as defined in Rules 13a-15(e) and 15d-15(e) under the Exchange Act. Such disclosure controls and procedures are ) reasonably designed to ensure that information required to be disclosed by the Company in reports that its filings with the SEC files or submits under the Exchange Act is recorded recorded, processed, summarized and reported on a timely basis within the time periods specified in the rules and forms of the SEC and that such information is accumulated and communicated to the individuals responsible for the preparation management of the Company’s filings Company as appropriate to allow timely decisions regarding required disclosure and to make the certifications required by the Exchange Act with respect to the SEC Company Reports.
(e) Since December 31, 2015, the Company has maintained a system of "internal control over financial reporting" (as defined in Rules 13a-15(f) and 15d-15(f) under the Exchange Act. The Company maintains internal control over financial reporting (as defined in Rule 13a-15 or 15d-15, as applicable, under the Exchange Act). Such internal control over financial reporting is ) designed to provide reasonable assurance regarding the reliability of financial reporting (i) that receipts and expenditures are made in accordance with management's authorization, (ii) that transactions are recorded as necessary to permit the preparation of financial statements for external purposes in accordance with GAAP. GAAP and (iii) regarding prevention and timely detection of the unauthorized acquisition, use or disposition of the Company's assets that could have a material effect on the financial statements.
(f) The Company has disclosed, based on the most recent evaluation of its Chief Executive Officer and its Chief Financial Officer prior to the date of this Agreementinternal control over financial reporting, to the Company’s 's auditors and the audit committee of the Company’s Company Board of Directors Directors, (xi) any all "significant deficiencies and deficiencies" or "material weaknesses weaknesses" in the design or operation of its internal controls control over financial reporting that which are reasonably likely to adversely affect the Company’s 's ability to record, process, summarize and report financial information and (yii) any fraud, whether or not material, that involves management or other employees who have a significant role in the Company’s 's internal control over financial reporting. The Company has made available prior to For the date purposes of this Agreement to Parent (I) either materials relating to or a summary of any disclosure of matters described in clauses (x) or (y) in the preceding sentence made by management of the Company to its auditors and audit committee on or after the Applicable Date and prior to the date of this Agreement and (II) any material communication on or after the Applicable Date and prior to the date of this Agreement made by management of the Company or its auditors to the audit committee as required by the listing standards of NasdaqSection 4.08(f), the audit committee’s charter or professional standards terms "significant deficiency" and "material weakness" shall have the meanings assigned to them in Appendix A of Auditing Standard No. 5 of the Public Company Accounting Oversight Board. Since the Applicable Date and prior to , as in effect on the date of this Agreement, no complaints from any source regarding a material violation of accounting procedures, internal accounting controls or auditing matters or compliance with Law, including from Company Employees regarding questionable accounting, auditing or legal compliance matters have, to the Knowledge of the Company, been received by the Company.
(dg) Each of Since December 31, 2016 through the consolidated balance sheets included in or incorporated by reference into the Company Reports (including the related notes and schedules) fairly presents or, in the case of Company Reports filed after Business Day prior to the date of this Agreementhereof, will fairly present, in each case, in all material respects, the consolidated financial position of the Company and its Subsidiaries, as of the date of such balance sheet, and each of the consolidated statements of operations, cash flows and changes in stockholders’ equity (deficiti) included in or incorporated by reference into the Company Reports (including any related notes and schedules) fairly presents, or, in the case of Company Reports filed after the date of this Agreement, will fairly present, in each case, in all material respects, the results of operations, retained earnings (loss) and changes in financial position, as the case may be, of the Company and its Subsidiaries for the periods set forth therein (subject, in the case of unaudited statements, to notes and normal year-end audit adjustments that are not or will not be material in amount or effect), in each case in accordance with GAAP consistently applied during the periods involved, except as may be noted therein or in the notes thereto.
(e) Neither neither the Company nor any of its Subsidiaries has incurred received any Indebtednessmaterial complaint, allegation, assertion or issued claim, regarding the accounting or sold auditing practices, procedures, methodologies or methods of the Company or any debt securities of its Subsidiaries or rights to acquire their respective internal accounting controls, including any debt security credible complaint, allegation, assertion or claim that the Company or any of its Subsidiaries has engaged in questionable accounting or auditing practices, and (ii) no attorney representing the Company or any of its Subsidiaries, whether or not employed by the terms Company or any of whichits Subsidiaries, has reported evidence of a material violation of securities Laws, breach of fiduciary duty or the terms of any instrument under which such Indebtedness, debt securities or rights were issued, requires the public listing of such Indebtedness, debt securities or rights or the maintenance similar violation by the Company or any of its Subsidiaries or their respective officers, directors, employees or agents to the Company Board of registration Directors or any committee thereof or to any director or officer of the Company pursuant to the rules of the SEC adopted under Section 307 of the Xxxxxxxx-Xxxxx Act of 2002.
(h) There are no "off balance sheet arrangements" as defined in Item 303 of Regulation S-K under the Exchange Securities Act, to which the Company or any of its Subsidiaries is a party.
Appears in 1 contract
Company Reports; Financial Statements. (ai) The Company has filed or furnished, as applicable, on a timely basis, all forms, statements, certifications, reports and documents required to be filed or furnished by it with or to the SEC pursuant to the Exchange Act or the Securities Act of 1933, as amended (the “Securities Act“), since June 30December 31, 2014 2006 (the “Applicable Date”“) (the forms, statements, reports and documents filed with or furnished to the SEC since the Applicable Date and those filed with or furnished to the SEC subsequent to the date of this Agreement, in each case as amendedincluding any amendments thereto, the “Company Reports”“). Each of the Company Reports, at the time of its filing or being furnished complied or, if not yet filed or furnished, will comply in all material respects with the applicable requirements of the Securities Act, the Exchange Act and the Xxxxxxxx-Xxxxx Act of 2002 (the “Xxxxxxxx-Xxxxx Act”“), and any rules and regulations promulgated thereunder applicable to the Company Reports. As of their respective dates (or, if amended prior to the date of this Agreement, as of the date of such amendment), the Company Reports did not, and any Company Reports filed with or furnished to the SEC subsequent to the date of this Agreement will not, contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements made therein, in light of the circumstances in which they were made, not misleading. The Company’s derivatives activities and business are substantially as described in the Company’s 2007 Annual Report.
(bii) The Company is in compliance in all material respects with the applicable listing and corporate governance rules and regulations of Nasdaqthe New York Stock Exchange (the “NYSE“). Except as permitted by the Exchange Act, including Section 13(k)(2) and Section 13(k)(3) thereof or the rules of the SEC, since the enactment of the Xxxxxxxx-Xxxxx Act, neither the Company nor any of its Subsidiaries has made, arranged or modified (in any material way) any extensions of credit in the form of a personal loan to any executive officer or director of the Company or any of their respective Affiliates. For purposes of this Agreement, the term “Affiliate“ when used with respect to any party shall mean any Person who is an “affiliate” of that party within the meaning of Rule 405 promulgated under the Securities Act.
(ciii) The Company maintains disclosure controls and procedures required by Rule 13a-15 or 15d-15 under the Exchange Act. Such disclosure controls and procedures are designed to ensure provide reasonable assurance that information required to be disclosed by the Company in its filings with the SEC under the Exchange Act is recorded and reported on a timely basis to the individuals responsible for the preparation of the Company’s filings with the SEC under the Exchange Actand other public disclosure documents. The Company maintains internal control over financial reporting (as defined in Rule 13a-15 or 15d-15, as applicable, under the Exchange Act). Such internal control over financial reporting is designed to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with GAAP and includes policies and procedures that (i) pertain to the maintenance of records that in reasonable detail accurately and fairly reflect the transactions and dispositions of the asset of the Company, (ii) provide reasonable assurance that transactions are recorded as necessary to permit preparation of financial statements in accordance with GAAP, and that receipts and expenditures of the Company are being made only in accordance with authorizations of management and directors of the Company, and (iii) provide reasonable assurance regarding prevention or timely detection of unauthorized acquisition, use or disposition of the Company’s assets that could have a material effect on its financial statements. The Company has disclosed, based on the most recent evaluation of its Chief Executive Officer chief executive officer and its Chief Financial Officer chief financial officer prior to the date of this Agreement, to the Company’s auditors and the audit committee of the Company’s Board board of Directors directors (xA) any significant deficiencies and material weaknesses in the design or operation of its internal controls over financial reporting that are reasonably likely to adversely affect the Company’s ability to record, process, summarize and report financial information and has identified for the Company’s auditors and audit committee of the Company’s board of directors any material weaknesses in internal control over financial reporting and (yB) any fraud, whether or not material, that involves management or other employees who have a significant role in the Company’s internal control over financial reporting. The Company has made available prior to the date of this Agreement to Parent (I) either materials relating to or a summary of any disclosure of matters described in clauses (x) or (y) in the preceding sentence made by management of the Company to its auditors and audit committee on or after the Applicable Date and prior to the date of this Agreement and (II) any material communication on or after the Applicable Date and prior to the date of this Agreement made by management of the Company or its auditors to the audit committee as required by the listing standards of Nasdaq, the audit committee’s charter or professional standards of the Public Company Accounting Oversight Board. Since the Applicable Date and prior to the date of this Agreement, no complaints from any source regarding a material violation of accounting procedures, internal accounting controls or auditing matters or compliance with Law, including from Company Employees regarding questionable accounting, auditing or legal compliance matters have, to the Knowledge of the Company, been received by the Company.
(div) Each of the consolidated balance sheets included in or incorporated by reference into the Company Reports (including the related notes and schedules) fairly presents or, in the case of Company Reports filed after the date of this Agreement, will fairly present, in each case, in all material respects, the consolidated financial position of the Company and its Subsidiaries, as of the date of such balance sheet, and each of the consolidated statements of operations, cash flows and changes in stockholders’ equity (deficit) included in or incorporated by reference into the Company Reports (including any related notes and schedules) fairly presents, or, in the case of Company Reports filed after the date of this Agreement, will fairly present, in all material respects, the consolidated financial position of the Company and its consolidated Subsidiaries as of its date, and each caseof the consolidated statements of income, changes in shareholders’ equity and cash flows included in or incorporated by reference into the Company Reports (including any related notes and schedules) fairly presents, or in the case of Company Reports filed after the date of this Agreement, will fairly present, in all material respects, the results of operations, retained earnings (loss) and changes in financial position, as the case may be, of the Company and its Subsidiaries such companies for the periods set forth therein (subject, in the case of unaudited statements, to notes and normal year-end audit adjustments that are not or will not be material in amount or effectadjustments), in each case in accordance with GAAP consistently applied during the periods involved, except as may be noted therein or in the notes theretotherein.
(e) Neither the Company nor any of its Subsidiaries has incurred any Indebtedness, or issued or sold any debt securities or rights to acquire any debt security of the Company or any of its Subsidiaries, the terms of which, or the terms of any instrument under which such Indebtedness, debt securities or rights were issued, requires the public listing of such Indebtedness, debt securities or rights or the maintenance by the Company or any of its Subsidiaries of registration under the Exchange Act.
Appears in 1 contract
Company Reports; Financial Statements. (ai) The Company has filed or furnished, as applicable, on a timely basis, basis all forms, statements, certifications, reports and documents required to be filed or furnished by it with or to the SEC pursuant to the Exchange Act or the Securities Act since June 30on or after December 31, 2014 2008 (the “Applicable Date”) (the forms, statements, certifications, reports and documents filed with or furnished to the SEC since the Applicable Date and those filed with or furnished to the SEC subsequent to the date of this Agreementhereof, in each case as amendedincluding any amendments thereto, the “Company Reports”). Each of the Company Reports, at the time of its filing or being furnished furnished, complied or, if not yet filed or furnished, will comply comply, in all material respects with the applicable requirements of the Securities Act, the Exchange Act and the Xxxxxxxx-Xxxxx Act of 2002 (the “Xxxxxxxx-Xxxxx Act”), and any rules and regulations promulgated thereunder applicable to the Company Reports. As of their respective dates (or, if amended prior to the date of this Agreementhereof, as of the date of such amendment), the Company Reports did not, and any Company Reports filed with or furnished to with the SEC subsequent to the date of this Agreement hereof will not, contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements made therein, in light of the circumstances in which they were made, not misleading. As of the date hereof, there are no material outstanding or unresolved comments received from the SEC with respect to any of the Company Reports.
(bii) The Since the Applicable Date, subject to any applicable grace periods, the Company has been and is in compliance in all material respects with the applicable provisions of the Xxxxxxxx-Xxxxx Act and the applicable listing and corporate governance rules and regulations of Nasdaq.
(ciii) Each of the consolidated balance sheets included in or incorporated by reference into the Company Reports (including the related notes and schedules) fairly presents in all material respects, or, in the case of Company Reports filed after the date hereof, will fairly present in all material respects, the consolidated financial position of the Company and its consolidated Subsidiaries as of its date and each of the consolidated statements of income, shareholders’ equity and comprehensive income and cash flows included in or incorporated by reference into the Company Reports (including any related notes and schedules) fairly presents in all material respects or, in the case of Company Reports filed after the date hereof, will fairly present in all material respects, the financial position, results of operations and cash flows, as the case may be, of the Company and its consolidated Subsidiaries for the periods set forth therein (subject, in the case of unaudited statements, to notes and year-end adjustments), in each case in accordance with U.S. generally accepted accounting principles (“GAAP”), except as may be noted therein.
(iv) The Company maintains disclosure controls and procedures required by Rule 13a-15 or 15d-15 under the Exchange Act. Such disclosure controls and procedures are designed effective to ensure that material information required to be disclosed by the Company in its filings with the SEC under the Exchange Act is recorded and reported on a timely basis to the individuals responsible for the preparation of the Company’s filings with the SEC under the Exchange Actand other public disclosure documents. The Company maintains internal control over financial reporting (as defined in Rule 13a-15 or 15d-15, as applicable, under the Exchange Act). Such internal control over financial reporting is designed to provide effective in providing reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with GAAP. The Except as is not, individually or in the aggregate, reasonably likely to have a Company Material Adverse Effect, the Company has disclosed, based on the most recent evaluation of its Chief Executive Officer principal executive officer and its Chief Financial Officer chief financial officer prior to the date of this Agreement, to the Company’s auditors and the audit committee of the Company’s Board of Directors of the Company (xA) any significant deficiencies and material weaknesses in the design or operation of its internal controls over financial reporting that (as defined in Rule 13a-15(f) of the Exchange Act) which are reasonably likely to adversely affect the Company’s ability to record, process, summarize and report financial information and (yB) any fraudfraud or, whether or not materialto the Knowledge of the Company, any allegation of fraud that involves management or other employees who have a significant role in the Company’s internal control controls over financial reporting. The Company has made available prior Except as is not reasonably likely to the date of this Agreement to Parent (I) either materials relating to or a summary of any disclosure of matters described in clauses (x) or (y) in the preceding sentence made by management of the Company to its auditors and audit committee on or after the Applicable Date and prior to the date of this Agreement and (II) any material communication on or after the Applicable Date and prior to the date of this Agreement made by management of the Company or its auditors to the audit committee as required by the listing standards of Nasdaq, the audit committee’s charter or professional standards of the Public Company Accounting Oversight Board. Since the Applicable Date and prior to the date of this Agreement, no complaints from any source regarding a material violation of accounting procedures, internal accounting controls or auditing matters or compliance with Law, including from Company Employees regarding questionable accounting, auditing or legal compliance matters have, to the Knowledge of the Company, been received by the Company.
(d) Each of the consolidated balance sheets included in or incorporated by reference into the Company Reports (including the related notes and schedules) fairly presents or, in the case of Company Reports filed after the date of this Agreement, will fairly present, in each case, in all material respects, the consolidated financial position of the Company and its Subsidiaries, as of the date of such balance sheet, and each of the consolidated statements of operations, cash flows and changes in stockholders’ equity (deficit) included in or incorporated by reference into the Company Reports (including any related notes and schedules) fairly presents, or, in the case of Company Reports filed after the date of this Agreement, will fairly present, in each case, in all material respects, the results of operations, retained earnings (loss) and changes in financial position, as the case may be, of the Company and its Subsidiaries for the periods set forth therein (subject, in the case of unaudited statements, to notes and normal year-end audit adjustments that are not or will not be material in amount or effect), in each case in accordance with GAAP consistently applied during the periods involved, except as may be noted therein individually or in the notes thereto.
(e) Neither aggregate, a Company Material Adverse Effect, since the Applicable Date, neither the Company nor any of its Subsidiaries has incurred received or otherwise had or obtained knowledge of any Indebtednesswritten complaint, allegation, assertion or issued claim regarding the accounting or sold any debt securities auditing practices, procedures, methodologies or rights to acquire any debt security methods of the Company or its Subsidiary or their respective internal accounting controls, including any of its Subsidiarieswritten complaint, the terms of whichallegation, assertion or the terms of any instrument under which such Indebtedness, debt securities or rights were issued, requires the public listing of such Indebtedness, debt securities or rights or the maintenance by claim that the Company or any of its Subsidiaries of registration under the Exchange ActSubsidiary has engaged in questionable accounting or auditing practices.
Appears in 1 contract
Samples: Merger Agreement (Pharmaceutical Product Development Inc)
Company Reports; Financial Statements. (a) The Except for late Form 4s set forth in the Company Reports, the Company has timely filed or furnished, as applicable, on a timely basis, all forms, statements, certifications, reports and documents Company Reports required to be filed or furnished by it with or to the SEC pursuant to the Exchange Act on or the Securities Act since June 30, 2014 (the “Applicable Date”) (the forms, statements, reports and documents filed with or furnished to the SEC since the Applicable Date and those filed with or furnished to the SEC subsequent prior to the date of this Agreement, in each case as amended, hereof and will timely file all Company Reports required to be filed with the “Company Reports”)SEC after the date hereof and prior to the Effective Time. Each No Subsidiary of the Company Reportsis subject to the reporting requirements of Section 13(a) or 15(d) of the Exchange Act. Each Company Report has complied, at the time of its filing or being furnished complied or, if not yet filed or furnished, will comply as the case may be, in all material respects with the applicable requirements of the Securities Act, the Exchange Act and the Xxxxxxxx-Xxxxx Act of 2002 (the “Xxxxxxxx-Xxxxx Act”), and any rules and regulations promulgated thereunder applicable to thereunder, or the Company Reports. As of their respective dates (orExchange Act, if amended prior to and the rules and regulations promulgated thereunder, as applicable, each as in effect on the date so filed. None of this Agreement, as of the date of such amendment), the Company Reports did not(including any financial statements or schedules included or incorporated by reference therein) contained or will contain, as the case may be, when filed (and, in the case of registration statements and any Company Reports filed with or furnished to proxy statements, on the SEC subsequent to dates of effectiveness and the date dates of this Agreement will notmailing, contain respectively) any untrue statement of a material fact or omit omitted or omits or will omit, as the case may be, to state a material fact required to be stated or incorporated by reference therein or necessary to make the statements made therein, in the light of the circumstances in under which they were or are made, not misleading.
(b) The Each of the Chief Executive Officer, President and Chief Financial Officer has made all certifications required by Rules 13a-14 and 15d-14 under the Exchange Act and Sections 302 and 906 of the Xxxxxxxx-Xxxxx Act with respect to the applicable Company is Reports filed prior to the date hereof (collectively, the "Certifications") and the statements contained in compliance such Certifications are accurate in all material respects with as of the applicable listing and corporate governance rules and regulations of Nasdaqfiling thereof.
(c) The Company maintains disclosure controls and procedures required by Rule 13a-15 or 15d-15 under has made available (including via the Exchange Act. Such disclosure controls and procedures are designed SEC's XXXXX system, as applicable) to ensure that information required to be disclosed by Parent all of the Company Financial Statements. All of the Company Financial Statements comply in its filings all material respects with the SEC under applicable requirements of the Exchange Act is recorded and reported have been prepared in accordance with GAAP applied on a timely consistent basis to throughout the individuals responsible periods involved (except as may be indicated -11- in the notes thereto) and fairly present in all material respects the consolidated financial position of the Company at the respective dates thereof and the consolidated results of its operations and changes in cash flows for the preparation periods indicated (subject, in the case of the Company’s filings unaudited statements, to normal year-end audit adjustments consistent with the SEC under the Exchange Act. GAAP).
(d) The Company maintains and its Subsidiaries have implemented and maintain a system of internal control over financial reporting (as defined in Rule 13a-15 or 15d-15, as applicable, under the Exchange Act). Such internal control over financial reporting is designed accounting controls sufficient to provide reasonable assurance assurances regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with GAAP. The Company has disclosedimplemented and maintains disclosure controls and procedures (as defined in Rule 13a-15(e) of the Exchange Act) designed to ensure that information relating to the Company, based on including its consolidated Subsidiaries, required to be disclosed in the most recent evaluation of its reports the Company files or submits under the Exchange Act is made known to the Chief Executive Officer and its the Chief Financial Officer prior to the date of this Agreement, to the Company’s auditors and the audit committee of the Company’s Board Company by others within those entities.
(e) The Company is, and since enactment of Directors the Xxxxxxxx-Xxxxx Act has been, in compliance in all material respects with the applicable provisions of the Xxxxxxxx-Xxxxx Act.
(xf) any significant deficiencies and material weaknesses in The Company has adopted a code of ethics, as defined by Item 406(b) of Regulation S-K promulgated under the design Exchange Act, for senior financial officers, applicable to its principal financial officer, comptroller or operation of its internal controls over financial reporting that are reasonably likely to adversely affect the Company’s ability to recordprincipal accounting officer, process, summarize and report financial information and (y) any fraud, whether or not material, that involves management or other employees who have a significant role in the Company’s internal control over financial reportingpersons performing similar functions. The Company has made available prior to the date of this Agreement to Parent (I) either materials relating to promptly disclosed, by filing a Form 8-K, any change in or a summary of any disclosure of matters described in clauses (x) or (y) in the preceding sentence made by management waiver of the Company to its auditors and audit committee on or after the Applicable Date and prior to the date Company's code of this Agreement and (II) any material communication on or after the Applicable Date and prior to the date of this Agreement made by management of the Company or its auditors to the audit committee ethics, as required by the listing standards Section 406(b) of Nasdaq, the audit committee’s charter or professional standards of the Public Company Accounting Oversight BoardXxxxxxxx-Xxxxx Act. Since the Applicable Date and prior to the date of this Agreement, no complaints from any source regarding a material violation of accounting procedures, internal accounting controls or auditing matters or compliance with Law, including from Company Employees regarding questionable accounting, auditing or legal compliance matters have, to To the Knowledge of the Company, there have been received by no material violations of provisions of the Company's code of ethics.
(dg) Each There are no Liabilities of the consolidated balance sheets included in or incorporated by reference into the Company Reports (including the related notes and schedules) fairly presents or, in the case of Company Reports filed after the date of this Agreement, will fairly present, in each case, in all material respects, the consolidated financial position of the Company and its Subsidiaries, as of the date of such balance sheet, and each of the consolidated statements of operations, cash flows and changes in stockholders’ equity (deficit) included in or incorporated by reference into the Company Reports (including any related notes and schedules) fairly presents, or, in the case of Company Reports filed after the date of this Agreement, will fairly present, in each case, in all material respects, the results of operations, retained earnings (loss) and changes in financial position, as the case may be, of the Company and its Subsidiaries for the periods set forth therein (subject, in the case of unaudited statements, to notes and normal year-end audit adjustments that are not or will not be material in amount or effect), in each case in accordance with GAAP consistently applied during the periods involved, except as may be noted therein or in the notes thereto.
(e) Neither the Company nor any of its Subsidiaries has incurred any Indebtedness, or issued or sold any debt securities or rights to acquire any debt security of the Company or any of its Subsidiaries, the terms of which, or the terms of any instrument under which such Indebtedness, debt securities or rights were issued, requires the public listing of such Indebtedness, debt securities or rights or the maintenance by the Company or any of its Subsidiaries of registration any kind whatsoever, whether or not accrued and whether or not contingent or absolute, that are material to the Company, are required by GAAP to be set forth on the Company Financial Statements and are not set forth on the Company Financial Statements, other than (i) Liabilities incurred on behalf of the Company under the Exchange Actthis Agreement; and (ii) Liabilities that would not reasonably be expected to have a Company Material Adverse Effect.
Appears in 1 contract
Samples: Merger Agreement (Manatron Inc)
Company Reports; Financial Statements. (ai) The Company has filed or furnished, as applicable, on a timely basis, all forms, statements, certifications, reports and documents required to be filed or furnished by it with or to the SEC pursuant to the Exchange Act or the Securities Act since June 30December 31, 2014 (the “Applicable Date”) (the forms, statements, reports and documents filed with or furnished to the SEC since the Applicable Date and those filed with or furnished to the SEC subsequent to the date of this Agreement, in each case as amended, the “Company Reports”). Each of the Company Reports, at the time of its filing or being furnished complied or, if not yet filed or furnished, will comply in all material respects with the applicable requirements of the Securities Act, the Exchange Act and the Xxxxxxxx-Xxxxx Act of 2002 (the “Xxxxxxxx-Xxxxx Act”), and any rules and regulations promulgated thereunder applicable to the Company Reports. As of their respective dates (or, if amended prior to the date of this Agreement, as of the date of such amendment), the Company Reports did not, and any Company Reports filed with or furnished to the SEC subsequent to the date of this Agreement will not, contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements made therein, in light of the circumstances in which they were made, not misleading.
(bii) The Company is in compliance in all material respects with the applicable listing and corporate governance rules and regulations of Nasdaqthe NYSE.
(ciii) The Company maintains disclosure controls and procedures required by Rule 13a-15 or 15d-15 under the Exchange Act. Such disclosure controls and procedures are designed to ensure that information required to be disclosed by the Company in its filings with the SEC under the Exchange Act is recorded and reported on a timely basis to the individuals responsible for the preparation of the Company’s filings with the SEC under the Exchange Act. The Company maintains internal control over financial reporting (as defined in Rule 13a-15 or 15d-15, as applicable, under the Exchange Act). Such internal control over financial reporting is designed to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with GAAP. The Company has disclosed, based on the most recent evaluation of its Chief Executive Officer and its Chief Financial Officer prior to the date of this Agreement, to the Company’s auditors and the audit committee of the Company’s Board of Directors (x) any significant deficiencies and material weaknesses in the design or operation of its internal controls over financial reporting that are reasonably likely to adversely affect the Company’s ability to record, process, summarize and report financial information and (y) any fraud, whether or not material, that involves management or other employees who have a significant role in the Company’s internal control over financial reporting. The Company has made available prior to the date of this Agreement to Parent (I) either materials relating to or a summary of any disclosure of matters described in clauses (x) or (y) in the preceding sentence made by management of the Company to its auditors and audit committee on or after the Applicable Date and prior to the date of this Agreement and (II) any material communication on or after the Applicable Date and prior to the date of this Agreement made by management of the Company or its auditors to the audit committee as required by the listing standards of Nasdaqthe NYSE, the audit committee’s charter or professional standards of the Public Company Accounting Oversight Board. Since the Applicable Date June 30, 2016 and prior to the date of this Agreement, no complaints from any source regarding a material violation of accounting procedures, internal accounting controls or auditing matters or compliance with Law, including from Company Employees regarding questionable accounting, auditing or legal compliance matters have, to the Knowledge of the Company, been received by the Company.
(div) Each of the consolidated balance sheets included in or incorporated by reference into the Company Reports (including the related notes and schedules) fairly presents or, in the case of Company Reports filed after the date of this Agreement, will fairly present, in each case, in all material respects, the consolidated financial position of the Company and its Subsidiaries, as of the date of such balance sheet, and each of the consolidated statements of operations, cash flows and changes in stockholders’ equity (deficit) included in or incorporated by reference into the Company Reports (including any related notes and schedules) fairly presents, or, in the case of Company Reports filed after the date of this Agreement, will fairly present, in each case, in all material respects, the results of operations, retained earnings (loss) and changes in financial position, as the case may be, of the Company and its Subsidiaries for the periods set forth therein (subject, in the case of unaudited statements, to notes and normal year-end audit adjustments that are not or will not be material in amount or effect), in each case in accordance with GAAP consistently applied during the periods involved, except as may be noted therein or in the notes thereto.
(ev) Neither the Company nor any of its Subsidiaries has incurred any Indebtedness, or issued or sold any debt securities or rights to acquire any debt security of the Company or any of its Subsidiaries, the terms of which, or the terms of any instrument under which such Indebtedness, debt securities or rights were issued, requires the public listing of such Indebtedness, debt securities or rights or the maintenance by the Company or any of its Subsidiaries of registration under the Exchange Act. As used in this Agreement, the term “Indebtedness” means, with respect to any Person, without duplication, all obligations or undertakings by such Person (i) for borrowed money (including deposits or advances of any kind to such Person); (ii) evidenced by bonds, debentures, notes or similar instruments; (iii) for capitalized leases or to pay the deferred and unpaid purchase price of property or equipment; (iv) pursuant to securitization or factoring programs or arrangements; (v) pursuant to guarantees and -19- arrangements having the economic effect of a guarantee of any Indebtedness of any other Person (other than between or among any of Parent and its wholly owned Subsidiaries or between or among the Company and its wholly owned Subsidiaries); (vi) to maintain or cause to be maintained the financing or financial position of others; (vii) net cash payment obligations of such Person under swaps, options, derivatives and other hedging Contracts or arrangements that will be payable upon termination thereof (assuming termination on the date of determination) or (viii) letters of credit, bank guarantees, and other similar Contracts or arrangements entered into by or on behalf of such Person to the extent they have been drawn upon.
Appears in 1 contract
Samples: Merger Agreement
Company Reports; Financial Statements. (ai) The Company has filed or furnished, as applicable, on a timely basis, all forms, statements, schedules, certifications, reports and other documents required to be filed or furnished by it with or to the SEC U.S. Securities and Exchange Commission (the “SEC”) pursuant to the Exchange Act or the Securities Act Act, including all exhibits thereto and information incorporated thereby, since June 30January 1, 2014 2018 (the “Applicable Date”) (the forms, statements, reports and documents filed with or furnished to the SEC since the Applicable Date and those filed with or furnished to the SEC subsequent prior to the date of this Agreement, in each case hereof (as amendedamended or supplemented, the “Company Reports”). Each of the Company Reports, at the time of its filing or being furnished complied (or, if not yet filed such Company Report was amended or furnishedsuperseded, will comply as of the date of such subsequent filing) with the SEC (i) complied as to form in all material respects with the applicable requirements of the Securities Act, the Exchange Act and the Xxxxxxxx-Xxxxx Act of 2002 (the “Xxxxxxxx-Xxxxx Act”), and any the published rules and regulations promulgated thereunder of the SEC applicable to the Company Reports. As of their respective dates (or, if amended prior to the date of this Agreement, as of the date of such amendment), the Company Reports did not, and any Company Reports filed with or furnished to the SEC subsequent to the date of this Agreement will not, (ii) did not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements made therein, in light of the circumstances in under which they were made, not misleading.
(bii) The Company is in compliance in all material respects with the applicable listing and corporate governance rules and regulations of Nasdaqthe Nasdaq that are applicable to the Company.
(ciii) The Company maintains disclosure controls and procedures required by (as defined in Rule 13a-15 13a-15(e) or 15d-15 15d-15(e) under the Exchange Act. Such disclosure controls and procedures ) that are designed sufficient to ensure provide reasonable assurance that material information required to be disclosed by the Company in its filings with the SEC under the Exchange Act is recorded and reported on a timely basis to the individuals responsible for the preparation of the Company’s filings with the SEC under the Exchange Act. The Company maintains internal control controls over financial reporting (as defined in Rule 13a-15 13a-15(f) or 15d-1515d-15(f), as applicable, under the Exchange Act). Such internal control over financial reporting is designed ) sufficient to provide reasonable assurance regarding the reliability of financial reporting and the (i) that transactions are recorded as necessary to permit preparation of financial statements for external purposes in accordance with GAAP. The Company has disclosedGAAP (ii) that receipts and expenditures are executed in accordance with the authorization of management and (iii) regarding prevention or timely detection of the unauthorized acquisition, based on the most recent evaluation of its Chief Executive Officer and its Chief Financial Officer prior to the date of this Agreement, to the Company’s auditors and the audit committee use or disposition of the Company’s Board assets that would materially affect the Company’s financial statements. Since the Applicable Date, neither the Company nor any of Directors its Subsidiaries nor the Company’s independent auditors has identified or been made aware of (xA) any “significant deficiencies and deficiencies” or “material weaknesses weaknesses” in the design or operation of its disclosure controls and procedures or internal controls over financial reporting that are reasonably likely to adversely affect the Company’s ability to recordreporting, process, summarize and report financial information and (yB) any fraudfraud (or unresolved allegation thereof), whether or not material, that involves management or other employees who have a significant role in the Company’s preparation of financial statements or internal control over financial reporting. The Company has made available prior to the date of this Agreement to Parent (I) either materials relating to or a summary of any disclosure of matters described in clauses (x) or (y) in the preceding sentence made by management of the Company to its auditors and audit committee on or after the Applicable Date and prior to the date of this Agreement and (II) any material communication on or after the Applicable Date and prior to the date of this Agreement made by management reporting of the Company or its auditors to the audit committee as required by the listing standards of Nasdaq, the audit committee’s charter Subsidiaries or professional standards of the Public Company Accounting Oversight Board. Since the Applicable Date and prior to the date of this Agreement, no (C) any complaints from any source regarding a material violation of accounting procedures, internal accounting controls or auditing matters or compliance with Lawrelating to the period since the Applicable Date, including from employees of the Company Employees or its Subsidiaries regarding questionable accounting, auditing or legal compliance matters have, to the Knowledge of the Company, been received by the Companymatters.
(div) Each of the consolidated balance sheets included in or incorporated by reference into the Company Reports (including the related notes and schedules) fairly presents or, in the case of Company Reports filed after the date of this Agreement, will fairly present, in each case, in all material respects, the consolidated financial position of the Company and its consolidated Subsidiaries, as of the date of such balance sheet, and each of the consolidated statements of operationsincome, cash flows and changes in stockholders’ equity (deficit) included in or incorporated by reference into the Company Reports (including any related notes and schedules) fairly presents, or, in the case of Company Reports filed after the date of this Agreement, will fairly present, in each case, in all material respects, the results of operations, retained earnings (loss) and changes in financial position, as the case may be, of the Company and its consolidated Subsidiaries for the periods set forth therein (subject, in the case of unaudited statements, to notes and normal year-end audit adjustments that are not or will not be material in amount or effectthe aggregate material). Such financial statements were, in each case case, prepared in accordance with GAAP (except, in the case of unaudited consolidated financial statements, as permitted by the rules and regulations of the SEC) consistently applied during the periods involved, except as may be noted therein in such Company Reports or in the notes thereto.
(e) Neither the Company nor any of its Subsidiaries has incurred any Indebtedness, or issued or sold any debt securities or rights to acquire any debt security of the Company or any of its Subsidiaries, the terms of which, or the terms of any instrument under which such Indebtedness, debt securities or rights were issued, requires the public listing of such Indebtedness, debt securities or rights or the maintenance as permitted by the Company or any of its Subsidiaries of registration Regulation S-X promulgated under the Exchange Act.
Appears in 1 contract
Company Reports; Financial Statements. (ai) The Company has filed or furnished, as applicable, on a timely basis, all forms, statements, certifications, reports and documents filings required to be filed or furnished made by it with or to the SEC pursuant to Company since December 31, 2005 under the Securities Act and the Exchange Act or have been filed with the Securities Act since June 30, 2014 and Exchange Commission (the “Applicable DateSEC”) (the ), including all material forms, registration, proxy and information statements, reports, agreements (oral or written) and all documents, exhibits, amendments and supplements appertaining thereto, and complied, as of their respective dates, in all material respects with all applicable requirements of the statutes and the rules and regulations thereunder as in effect on the dates so filed (collectively, including any amendments of any such reports and documents filed with or furnished to the SEC since by the Applicable Date and those filed with or furnished to the SEC subsequent Company prior to the date of this Agreement, in each case as amendedhereof, the “Company Reports”). Each None of the Company Reports, at Reports (in the time case of its filing or being furnished complied or, if not yet Company Reports filed or furnished, will comply in all material respects with the applicable requirements of pursuant to the Securities Act, the Exchange Act and the Xxxxxxxx-Xxxxx Act of 2002 (the “Xxxxxxxx-Xxxxx Act”), and any rules and regulations promulgated thereunder applicable to the Company Reports. As of their respective dates (or, if amended prior to the date of this Agreement, as of the date of such amendment)their effective dates, the Company Reports did not, and any Company Reports filed with or furnished to the SEC subsequent to the date of this Agreement will not, contain contained any untrue statement of a material fact or omit omitted to state a material fact required to be stated therein or necessary to make the statements made therein not misleading. None of the Company Reports (in the case of Company Reports filed pursuant to the Exchange Act) contained, when filed as finally amended or subsequently mailed to stockholders, any untrue statement of a material fact or omitted to state any material fact necessary in order to make the statements therein, in the light of the circumstances in under which they were made, not misleading.
(bii) The consolidated financial statements of the Company is and its Subsidiaries included in compliance such Company Reports complied as of the effective or file dates thereof, as applicable, as to form in all material respects with the applicable listing and corporate governance rules and regulations of Nasdaq.
(c) The Company maintains disclosure controls and procedures required by Rule 13a-15 or 15d-15 under the Exchange Act. Such disclosure controls and procedures are designed to ensure that information required to be disclosed by the Company in its filings with the SEC under the Exchange Act is recorded and reported with respect thereto as in effect on a timely basis to the individuals responsible for the preparation of the Company’s filings with the SEC under the Exchange Actsuch dates. The Company maintains internal control over financial reporting (as defined in Rule 13a-15 or 15d-15, as applicable, under the Exchange Act). Such internal control over financial reporting is designed to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with GAAP. The Company has disclosed, based on the most recent evaluation of its Chief Executive Officer and its Chief Financial Officer prior to the date of this Agreement, to the Company’s auditors and the audit committee of the Company’s Board of Directors (x) any significant deficiencies and material weaknesses in the design or operation of its internal controls over financial reporting that are reasonably likely to adversely affect the Company’s ability to record, process, summarize and report financial information and (y) any fraud, whether or not material, that involves management or other employees who have a significant role in the Company’s internal control over financial reporting. The Company has made available prior to the date of this Agreement to Parent (I) either materials relating to or a summary of any disclosure of matters described in clauses (x) or (y) in the preceding sentence made by management of the Company to its auditors and audit committee on or after the Applicable Date and prior to the date of this Agreement and (II) any material communication on or after the Applicable Date and prior to the date of this Agreement made by management of the Company or its auditors to the audit committee as required by the listing standards of Nasdaq, the audit committee’s charter or professional standards of the Public Company Accounting Oversight Board. Since the Applicable Date and prior to the date of this Agreement, no complaints from any source regarding a material violation of accounting procedures, internal accounting controls or auditing matters or compliance with Law, including from Company Employees regarding questionable accounting, auditing or legal compliance matters have, to the Knowledge of the Company, been received by the Company.
(d) Each of the consolidated balance sheets included in or incorporated by reference into the Company Reports (including the related notes and schedules) fairly presents or, in the case of Company Reports filed after the date of this Agreement, will fairly present, in each casefairly, in all material respects, the consolidated financial position of the Company and its Subsidiaries, Subsidiaries as of the date of such balance sheetits date, and each of the consolidated statements of operations, income and consolidated statements of cash flows and changes in stockholders’ equity (deficit) included in or incorporated by reference into the Company Reports (including any related notes and schedules) fairly presents, or, in the case of Company Reports filed after the date of this Agreement, will fairly present, in each case, in all material respects, the results of operations, retained earnings (loss) and changes in financial position, as the case may be, of the Company and its Subsidiaries for the periods set forth therein (subject, in the case of unaudited statements, to the absence of notes and normal year-end audit adjustments that are not or will not be material in amount or effectadjustments), in each case in accordance with U.S. GAAP consistently applied during the periods involved, except as may be noted therein or in the notes theretotherein.
(eiii) Neither the Company nor any of its Subsidiaries has incurred any Indebtedness, or issued or sold any debt securities or rights to acquire any debt security The management of the Company or any has (A) implemented (x) disclosure controls and procedures (as defined in Rule 13a-15(e) of the Exchange Act) to ensure that material information relating to the Company, including its Subsidiaries, is made known to the terms management of which, or the terms of any instrument under which such Indebtedness, debt securities or rights were issued, requires the public listing of such Indebtedness, debt securities or rights or the maintenance by the Company or any by others within those entities and (y) a system of its Subsidiaries internal control over financial reporting (as defined in Rule 13a-15(f) of registration under the Exchange Act) designed to provide reasonable assurances regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with U.S. GAAP, and (B) disclosed to the Company’s outside auditors and the audit committee of the board of directors of the Company (x) all significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the Company’s ability to record, process, summarize and report financial data and (y) any fraud, whether or not material, that involves management or other employees who have a significant role in the Company’s internal control over financial reporting. A summary of any of those disclosures made by management to the Company’s auditors and audit committee since December 31, 2006 has been made available to Parent. Since December 31, 2007 (the “Audit Date”), there has not been any material change in the Company’s internal control over financial reporting.
Appears in 1 contract
Company Reports; Financial Statements. (a) The Company has timely filed or furnished, as applicable, on a timely basis, all forms, statements, certifications, reports and documents Company Reports required to be filed or furnished by it with or to the SEC pursuant to the Exchange Act or the Securities Act since June between September 30, 2014 (the “Applicable Date”) (the forms, statements, reports 2011 and documents filed with or furnished to the SEC since the Applicable Date and those filed with or furnished to the SEC subsequent to the date of this Agreement, in each case as amended, the “Company Reports”)hereof. Each No Subsidiary of the Company Reports, at is subject to the time reporting requirements of its filing Section 13(a) or being furnished 15(d) of the Exchange Act. Each Company Report has complied or, if not yet filed or furnished, will comply in all material respects as of its date (or, if amended prior to the date hereof, as finally amended prior to the date hereof) with the applicable requirements of the Securities Act, the Exchange Act and the Xxxxxxxx-Xxxxx Act of 2002 (the “Xxxxxxxx-Xxxxx Act”), and any rules and regulations promulgated thereunder applicable to thereunder, or the Company Reports. As of their respective dates (orExchange Act, if amended prior to and the rules and regulations promulgated thereunder, as applicable, each as in effect on the date so filed (or amended). None of this Agreement, as of the date of such amendment), the Company Reports did not(including any financial statements or schedules included or incorporated by reference therein) contained, when filed (and, in the case of registration statements and any Company Reports filed with or furnished to proxy statements, on the SEC subsequent to dates of effectiveness and the date dates of this Agreement will notmailing, contain respectively) any untrue statement of a material fact or omit omitted, as the case may be, to state a material fact required to be stated or incorporated by reference therein or necessary to make the statements made therein, in the light of the circumstances in under which they were made, not misleading.
(b) The Each of the Chief Executive Officer and Chief Financial Officer of the Company is has made all certifications required by Rules 13a-14 and 15d-14 under the Exchange Act and Sections 302 and 906 of the Xxxxxxxx-Xxxxx Act with respect to the applicable Company Reports filed prior to the date hereof (collectively, the “Certifications”) and the statements contained in compliance such Certifications are accurate in all material respects with as of the applicable listing and corporate governance rules and regulations of Nasdaqfiling thereof.
(c) The Company maintains disclosure controls and procedures required by Rule 13a-15 or 15d-15 under has made available (including via the Exchange Act. Such disclosure controls and procedures are designed SEC’s XXXXX system, as applicable) to ensure that information required to be disclosed by Parent all of the Company in its filings with Financial Statements and all material correspondence (if such correspondence has occurred since September 30, 2011 through the date hereof) between the SEC under on the one hand, and the Company and any of its Subsidiaries, on the other hand. As of the date hereof, there are no outstanding or unresolved comments in comment letters from the SEC staff with respect to any of the Company Reports. To the Knowledge of the Company, as of the date hereof, none of the Company Reports is the subject of ongoing SEC review, outstanding SEC comment or outstanding SEC investigation. All of the Company Financial Statements comply in all material respects with applicable requirements of the Exchange Act is recorded and reported have been prepared in accordance with GAAP applied on a timely consistent basis to throughout the individuals responsible periods involved (except as may be indicated in the notes thereto) and fairly present in all material respects the consolidated financial position of the Company at the respective dates thereof and the consolidated results of its operations and changes in cash flows for the preparation periods indicated (subject, in the case of unaudited statements, to normal year-end audit adjustments and any other adjustments described therein, in each case consistent with GAAP). As of the Company’s filings date hereof, the books and records of Company and its Subsidiaries have been maintained in all material respects in accordance with GAAP and any other applicable legal and accounting requirements and reflect only actual transactions. As of the date hereof, Deloitte & Touche LLP has not resigned or been dismissed as independent public accountants of the Company as a result of or in connection with any disagreements with the SEC under the Exchange Act. Company on a matter of accounting principles or practices, financial statement disclosure or auditing scope or procedure.
(d) The Company maintains and its Subsidiaries have implemented and maintain a system of internal control over financial reporting (as defined in Rule 13a-15 or 15d-15, as applicable, under the Exchange Act). Such internal control over financial reporting is designed accounting controls sufficient to provide reasonable assurance assurances regarding the reliability of financial reporting and the preparation of financial statements in accordance with GAAP. Such internal controls are sufficient to provide reasonable assurance regarding the reliability of the Company’s financial reporting and the preparation of Company financial statements for external purposes in accordance with GAAP. The Since September 30, 2011 through the date hereof, the Company has disclosed, based on the most recent evaluation of its Chief Executive Officer and its Chief Financial Officer prior to the date of this Agreement, disclosed to the Company’s auditors and the audit committee of the Company’s Company Board of Directors (xi) any all significant deficiencies and material weaknesses in the design or operation of its internal controls over financial reporting that are reasonably likely to adversely affect the Company’s ability to record, process, summarize and report financial information and (yii) any fraud, whether or not material, that involves management or other employees who have a significant role in the Company’s internal control over financial reportingcontrols, and the Company has made available to Parent copies of any material written materials relating to each of the foregoing. The Company has made available prior implemented and maintains disclosure controls and procedures (as defined in Rule 13a-15(e) under the Exchange Act) designed to ensure that information relating to the date of this Agreement Company, including its consolidated Subsidiaries, required to Parent (I) either materials relating to or a summary of any disclosure of matters described in clauses (x) or (y) be disclosed in the preceding sentence reports the Company files or submits under the Exchange Act is made known to the Company’s management by others within those entities. Such disclosure controls and procedures are reasonably designed to ensure that the Company’s management is timely alerted to material information required to be included in the Company’s periodic reports required under the Exchange Act.
(e) The Company has for the past two (2) years been in compliance in all material respects with the applicable provisions of the Xxxxxxxx-Xxxxx Act.
(f) The Company has adopted a code of ethics, as defined by Item 406(b) of Regulation S-K promulgated under the Exchange Act, for senior financial officers, applicable to its auditors and audit committee on principal financial officer, comptroller or after the Applicable Date and prior to the date of this Agreement and (II) principal accounting officer, or persons performing similar functions. The Company has promptly disclosed, by filing a Form 8-K, any material communication on change in or after the Applicable Date and prior to the date of this Agreement made by management waiver of the Company or its auditors to the audit committee Company’s code of ethics, as required by the listing standards Section 406(b) of Nasdaq, the audit committee’s charter or professional standards of the Public Company Accounting Oversight BoardXxxxxxxx-Xxxxx Act. Since the Applicable Date and prior to the date of this Agreement, no complaints from any source regarding a material violation of accounting procedures, internal accounting controls or auditing matters or compliance with Law, including from Company Employees regarding questionable accounting, auditing or legal compliance matters have, to To the Knowledge of the Company, there have been received by no violations of provisions of the Company’s code of ethics since its adoption.
(dg) Each of the consolidated balance sheets included in or incorporated by reference into the Company Reports (including the related notes and schedules) fairly presents or, in the case of Company Reports filed after the date of this Agreement, will fairly present, in each case, in all material respects, the consolidated financial position of the Company and its Subsidiaries, as of the date of such balance sheet, and each of the consolidated statements of operations, cash flows and changes in stockholders’ equity (deficit) included in or incorporated by reference into the Company Reports (including any related notes and schedules) fairly presents, or, in the case of Company Reports filed after the date of this Agreement, will fairly present, in each case, in all material respects, the results of operations, retained earnings (loss) and changes in financial position, as the case may be, of the Company and its Subsidiaries for the periods set forth therein (subject, in the case of unaudited statements, to notes and normal year-end audit adjustments that There are not or will not be material in amount or effect), in each case in accordance with GAAP consistently applied during the periods involved, except as may be noted therein or in the notes thereto.
(e) Neither the Company nor any of its Subsidiaries has incurred any Indebtedness, or issued or sold any debt securities or rights to acquire any debt security no Liabilities of the Company or any of its SubsidiariesSubsidiaries that are material to the Company and its Subsidiaries taken as a whole, are required by GAAP to be set forth on the terms Company Financial Statements and are not set forth on the Company Financial Statements (or the notes thereto), other than (i) Liabilities incurred by or on behalf of whichthe Company under, or otherwise permitted by, this Agreement or otherwise in connection with the terms transactions contemplated by this Agreement, (ii) Liabilities incurred in the ordinary course of any instrument business consistent with past practice since September 30, 2012, none of which would reasonably be expected to have a Company Material Adverse Effect, and (iii) Liabilities for performance of the Company’s obligations under which such Indebtedness, debt securities or rights were issued, requires the public listing of such Indebtedness, debt securities or rights or the maintenance by the Company or any of its Subsidiaries of registration under the Exchange ActContracts.
Appears in 1 contract
Company Reports; Financial Statements. (a) The Company has filed or furnished, as applicable, on a timely basis, all forms, statements, certifications, reports and documents Company Reports required to be filed or furnished by it with or to the SEC pursuant to the Exchange Act or the Securities Act since June 30, 2014 (the “Applicable Date”) (the forms, statements, reports and documents filed with or furnished to the SEC since the Applicable Date and those filed with or furnished to the SEC subsequent to the date of this Agreement, in each case as amended, the “Company Reports”)SEC. Each of the Company Reports, at the time of its filing or being furnished Report has complied or, if not yet filed or furnished, will comply in all material respects with the applicable requirements of the Securities Act, the Exchange Act and the Xxxxxxxx-Xxxxx Act of 2002 (the “Xxxxxxxx-Xxxxx Act”), and any rules and regulations promulgated thereunder applicable to thereunder, and the Company Reports. As of their respective dates (orExchange Act, if amended prior to and the rules and regulations promulgated thereunder, as applicable, each as in effect on the date so filed. None of this Agreement, as of the date of such amendment), the Company Reports did not(including any financial statements or schedules included or incorporated by reference therein) contained when filed (and, in the case of registration statements and any Company Reports filed with or furnished to proxy statements, on the SEC subsequent to dates of effectiveness and the date dates of this Agreement will notmailing, contain respectively) any untrue statement of a material fact or omit omitted or omits or will omit, as the case may be, to state a material fact required to be stated or incorporated by reference therein or necessary to make the statements made therein, in the light of the circumstances in under which they were or are made, not misleading.
(b) The Company has made available (including via the SEC’s EXXXX system, as applicable) to Parent all of the Company Financial Statements. All of the Company Financial Statements comply, as of their respective dates of filing with the SEC, in all material respects with the applicable accounting requirements and the published rules and regulations of the SEC with respect thereto, and fairly present, in conformity with GAAP applied on a consistent basis throughout the periods involved (except as may be indicated in the notes thereto), the consolidated financial position of the Company at the respective dates thereof and the consolidated results of its operations and changes in cash flows for the periods indicated (subject, in the case of unaudited statements, to normal year-end audit adjustments consistent with GAAP).
(c) There are no Liabilities of the Company or any of its Subsidiaries of any kind whatsoever, whether or not accrued and whether or not contingent or absolute, and there is no existing condition, situation or set of circumstances that would reasonably be expected to result in such a Liability, other than (i) Liabilities disclosed and provided for in the Company Balance Sheet or in the notes thereto or in the Specified Company Reports, (ii) Liabilities incurred on behalf of the Company in connection with the transactions contemplated by this Agreement and set forth in Section 3.8(c) of the Company Disclosure Letter, and (iii) Liabilities incurred in the ordinary course of business since September 30, 2006, none of which has had or reasonably would be expected to have, individually or in the aggregate, a Company Material Adverse Effect.
(d) Since January 1, 2005, the Company has been and is in compliance in all material respects with (A) the applicable provisions of the Sxxxxxxx-Xxxxx Act of 2002 and the rules and regulations promulgated thereunder and (B) the applicable listing and corporate governance rules and regulations of Nasdaqthe New York Stock Exchange.
(ce) The Company has established and maintains disclosure controls and procedures required by Rule 13a-15 or 15d-15 under the Exchange Act. Such disclosure and internal controls and procedures are designed to ensure that information required to be disclosed by the Company in its filings with the SEC under the Exchange Act is recorded and reported on a timely basis to the individuals responsible for the preparation of the Company’s filings with the SEC under the Exchange Act. The Company maintains internal control over financial reporting (as such terms are defined in paragraphs (e) and (f), respectively, of Rule 13a-15 or 15d-15, as applicable, under the Exchange Act). Such internal control over financial reporting is designed to provide reasonable assurance regarding ) as required by Rule 13a-15 under the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with GAAP. Exchange Act.
(f) The Company has disclosed, based on the most recent evaluation of its Chief Executive Officer and its Chief Financial Officer prior to the date of this Agreement, disclosed to the Company’s auditors and the audit committee of the Company’s Company Board of Directors Directors, based on its most recent evaluation prior to the date hereof, (xi) any significant deficiencies and material weaknesses in the design or operation of its internal controls over financial reporting that which are reasonably likely to adversely affect in any material respect the Company’s ability to record, process, summarize and report financial information and (yii) any fraud, whether or not material, that involves management or other employees who have a significant role in the Company’s internal control controls over financial reporting. The Company has made available prior to the date of this Agreement to Parent (I) either materials relating to or a summary of any disclosure of matters , as described in clauses (xSection 3.8(f) or (y) in the preceding sentence made by management of the Company to its auditors and audit committee on or after Disclosure Letter. To the Applicable Date and prior to the date of this Agreement and (II) any material communication on or after the Applicable Date and prior to the date of this Agreement made by management Knowledge of the Company or its auditors to the audit committee as required by the listing standards of NasdaqCompany, the audit committee’s charter or professional standards of the Public Company Accounting Oversight Board. Since the Applicable Date has not received any credible and prior to the date of this Agreementmaterial complaints since December 31, no complaints from any source 2005 regarding a material violation of accounting proceduresaccounting, internal accounting controls or auditing matters or compliance with Lawmatters, including from Company Employees any such complaint regarding questionable accounting, accounting or auditing or legal compliance matters have, to the Knowledge of the Company, been received by the Companymatters.
(dg) Each of the consolidated balance sheets included in or incorporated by reference into the Company Reports (including the related notes and schedules) fairly presents or, in the case of Company Reports filed after the date of this Agreement, will fairly present, in each case, in all material respects, the consolidated financial position of the Company and its Subsidiaries, as As of the date of such balance sheethereof, and each of the consolidated statements of operations, cash flows and changes in stockholders’ equity (deficit) included in or incorporated by reference into the Company Reports (including has not identified any related notes and schedules) fairly presents, or, material weaknesses in the case of Company Reports filed after the date of this Agreement, will fairly present, in each case, in all material respects, the results of operations, retained earnings (loss) and changes in financial position, as the case may be, of the Company and its Subsidiaries for the periods set forth therein (subject, in the case of unaudited statements, to notes and normal year-end audit adjustments that are not design or will not be material in amount or effect), in each case in accordance with GAAP consistently applied during the periods involved, except as may be noted therein or in the notes thereto.
(e) Neither the Company nor any operation of its Subsidiaries has incurred any Indebtedness, or issued or sold any debt securities or rights to acquire any debt security of the Company or any of its Subsidiaries, the terms of which, or the terms of any instrument under which such Indebtedness, debt securities or rights were issued, requires the public listing of such Indebtedness, debt securities or rights or the maintenance by the Company or any of its Subsidiaries of registration under the Exchange Actinternal controls over financial reporting.
Appears in 1 contract
Company Reports; Financial Statements. (ai) The Company has filed or furnished, as applicable, on a timely basis, made available to Purchaser all forms, statements, certifications, reports and documents required to be filed or furnished by it with or to the SEC Securities and Exchange Commission (the “SEC”) pursuant to the Exchange Act or the Securities Act of 1933, as amended (the “Securities Act”) since June 30December 31, 2014 2002 (the “Applicable Date”) (the forms, statements, reports and documents filed with or furnished to the SEC since the Applicable Date and those filed with or furnished to the SEC subsequent to the date of this Agreementhereof, in each case as amendedincluding any amendments thereto, the “Company Reports”). Each of the Company ReportsReports filed since December 31, 2004 and prior to the date hereof, at the time of its filing with or being furnished complied or, if not yet filed or furnished, will comply in all material respects with the applicable requirements of the Securities Act, the Exchange Act and the Xxxxxxxx-Xxxxx Act of 2002 (the “Xxxxxxxx-Xxxxx Act”), and any rules and regulations promulgated thereunder applicable to the Company Reports. As of their respective dates (orSEC, if amended prior to the date of this Agreement, as of the date of such amendment), the Company Reports did not, and any Company Reports filed with or furnished to the SEC subsequent to the date of this Agreement hereof will not, contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements made therein, in light of the circumstances in which they were made, not misleading. Each of the Company Reports filed since December 31, 2004 and prior to the date hereof, at the time of its filing with or being furnished to the SEC, did, and any Company Reports filed with or furnished to the SEC subsequent to the date hereof will, comply in all material respects with the applicable requirements of the Exchange Act and the Securities Act, as applicable.
(bii) The Except as set forth in the Company Disclosure Letter, the Company has been since December 31, 2004 and is in compliance in all material respects with the applicable listing and corporate governance rules and regulations of Nasdaq.
(c) The Company maintains disclosure controls and procedures required by Rule 13a-15 or 15d-15 under the Exchange ActNasdaq Stock Market. Such disclosure controls and procedures are designed to ensure that information required to be disclosed by the Company in its filings with the SEC under the Exchange Act is recorded and reported on a timely basis to the individuals responsible for the preparation of the Company’s filings with the SEC under the Exchange Act. The Company maintains internal control over financial reporting (as defined in Rule 13a-15 or 15d-15, as applicable, under the Exchange Act). Such internal control over financial reporting is designed to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external For purposes in accordance with GAAP. The Company has disclosed, based on the most recent evaluation of its Chief Executive Officer and its Chief Financial Officer prior to the date of this Agreement, the term “Affiliate” when used with respect to any party shall mean any Person who is an “affiliate” of that party within the Company’s auditors and the audit committee meaning of the Company’s Board of Directors (x) any significant deficiencies and material weaknesses in the design or operation of its internal controls over financial reporting that are reasonably likely to adversely affect the Company’s ability to record, process, summarize and report financial information and (y) any fraud, whether or not material, that involves management or other employees who have a significant role in the Company’s internal control over financial reporting. The Company has made available prior to the date of this Agreement to Parent (I) either materials relating to or a summary of any disclosure of matters described in clauses (x) or (y) in the preceding sentence made by management of the Company to its auditors and audit committee on or after the Applicable Date and prior to the date of this Agreement and (II) any material communication on or after the Applicable Date and prior to the date of this Agreement made by management of the Company or its auditors to the audit committee as required by the listing standards of Nasdaq, the audit committee’s charter or professional standards of the Public Company Accounting Oversight Board. Since the Applicable Date and prior to the date of this Agreement, no complaints from any source regarding a material violation of accounting procedures, internal accounting controls or auditing matters or compliance with Law, including from Company Employees regarding questionable accounting, auditing or legal compliance matters have, to the Knowledge of the Company, been received by the Company.
(d) Each of the consolidated balance sheets included in or incorporated by reference into the Company Reports (including the related notes and schedules) fairly presents or, in the case of Company Reports filed after the date of this Agreement, will fairly present, in each case, in all material respects, the consolidated financial position of the Company and its Subsidiaries, as of the date of such balance sheet, and each of the consolidated statements of operations, cash flows and changes in stockholders’ equity (deficit) included in or incorporated by reference into the Company Reports (including any related notes and schedules) fairly presents, or, in the case of Company Reports filed after the date of this Agreement, will fairly present, in each case, in all material respects, the results of operations, retained earnings (loss) and changes in financial position, as the case may be, of the Company and its Subsidiaries for the periods set forth therein (subject, in the case of unaudited statements, to notes and normal year-end audit adjustments that are not or will not be material in amount or effect), in each case in accordance with GAAP consistently applied during the periods involved, except as may be noted therein or in the notes thereto.
(e) Neither the Company nor any of its Subsidiaries has incurred any Indebtedness, or issued or sold any debt securities or rights to acquire any debt security of the Company or any of its Subsidiaries, the terms of which, or the terms of any instrument under which such Indebtedness, debt securities or rights were issued, requires the public listing of such Indebtedness, debt securities or rights or the maintenance by the Company or any of its Subsidiaries of registration Rule 405 promulgated under the Exchange Securities Act.
Appears in 1 contract
Samples: Merger Agreement (Sourcecorp Inc)
Company Reports; Financial Statements. (a) The Company has timely filed or furnished, as applicable, on a timely basis, all forms, statements, certifications, reports and documents Company Reports required to be filed or furnished by it with or to the SEC pursuant to the Exchange Act on or the Securities Act since June 30, 2014 (the “Applicable Date”) (the forms, statements, reports and documents filed with or furnished to the SEC since the Applicable Date and those filed with or furnished to the SEC subsequent prior to the date of this Agreement, in each case as amended, hereof and will timely file all Company Reports required to be filed with the “Company Reports”)SEC after the date hereof and prior to the Effective Time. Each No Subsidiary of the Company Reportsis subject to the reporting requirements of Section 13(a) or 15(d) of the Exchange Act. Each Company Report has complied, at the time of its filing or being furnished complied or, if not yet filed or furnished, will comply as the case may be, in all material respects with the applicable requirements of the Securities Act, the Exchange Act and the Xxxxxxxx-Xxxxx Act of 2002 (the “Xxxxxxxx-Xxxxx Act”), and any rules and regulations promulgated thereunder applicable to thereunder, or the Company Reports. As of their respective dates (orExchange Act, if amended prior to and the rules and regulations promulgated thereunder, as applicable, each as in effect on the date so filed. None of this Agreement, as of the date of such amendment), the Company Reports did not(including any financial statements or schedules included or incorporated by reference therein) contained or will contain, as the case may be, when filed (and, in the case of registration statements and any Company Reports filed with or furnished to proxy statements, on the SEC subsequent to dates of effectiveness and the date dates of this Agreement will notmailing, contain respectively) any untrue statement of a material fact or omit omitted or omits or will omit, as the case may be, to state a material fact required to be stated or incorporated by reference therein or necessary to make the statements made therein, in the light of the circumstances in under which they were or are made, not misleading.
(b) The Each of the Chief Executive Officer and Chief Financial Officer has made all certifications required by Rules 13a-14 and 15d-14 under the Exchange Act and Sections 302 and 906 of the Xxxxxxxx-Xxxxx Act with respect to the applicable Company is Reports filed prior to the date hereof (collectively, the "Certifications") and the statements contained in compliance such Certifications are accurate in all material respects with as of the applicable listing and corporate governance rules and regulations of Nasdaqfiling thereof.
(c) The Company maintains disclosure controls and procedures required by Rule 13a-15 or 15d-15 under has made available (including via the Exchange Act. Such disclosure controls and procedures are designed SEC's XXXXX system, as applicable) to ensure that information required to be disclosed by Parent all of the Company Financial Statements. All of the Company Financial Statements comply in its filings all material respects with the SEC under applicable requirements of the Exchange Act is recorded and reported have been prepared in accordance with GAAP applied on a timely consistent basis to throughout the individuals responsible periods involved (except as may be indicated in the notes thereto) and fairly present in all material respects the consolidated financial position of the Company at the respective dates thereof and the consolidated results of its operations and changes in cash flows for the preparation periods indicated (subject, in the case of the Company’s filings unaudited statements, to normal year-end audit adjustments consistent with the SEC under the Exchange Act. GAAP).
(d) The Company maintains and its Subsidiaries have implemented and maintain a system of internal control over financial reporting (as defined in Rule 13a-15 or 15d-15, as applicable, under the Exchange Act). Such internal control over financial reporting is designed accounting controls sufficient to provide reasonable assurance assurances regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with GAAP. The Company has disclosedimplemented and maintains disclosure controls and procedures (as defined in Rule 13a-15(e) of the Exchange Act) designed to ensure that information relating to the Company, based on including its consolidated Subsidiaries, required to be disclosed in the most recent evaluation of its reports the Company files or submits under the Exchange Act is made known to the Chief Executive Officer and its the Chief Financial Officer prior to the date of this Agreement, to the Company’s auditors and the audit committee of the Company’s Board Company by others within those entities.
(e) The Company is, and since enactment of Directors the Xxxxxxxx-Xxxxx Act has been, in compliance in all material respects with the applicable provisions of the Xxxxxxxx-Xxxxx Act.
(xf) any significant deficiencies and material weaknesses in The Company has adopted a code of ethics, as defined by Item 406(b) of Regulation S-K promulgated under the design Exchange Act, for senior financial officers, applicable to its principal financial officer, comptroller or operation of its internal controls over financial reporting that are reasonably likely to adversely affect the Company’s ability to recordprincipal accounting officer, process, summarize and report financial information and (y) any fraud, whether or not material, that involves management or other employees who have a significant role in the Company’s internal control over financial reportingpersons performing similar functions. The Company has made available prior to the date of this Agreement to Parent (I) either materials relating to promptly disclosed, by filing a Form 8-K, any change in or a summary of any disclosure of matters described in clauses (x) or (y) in the preceding sentence made by management waiver of the Company to its auditors and audit committee on or after the Applicable Date and prior to the date Company's code of this Agreement and (II) any material communication on or after the Applicable Date and prior to the date of this Agreement made by management of the Company or its auditors to the audit committee ethics, as required by the listing standards Section 406(b) of Nasdaq, the audit committee’s charter or professional standards of the Public Company Accounting Oversight BoardXxxxxxxx-Xxxxx Act. Since the Applicable Date and prior to the date of this Agreement, no complaints from any source regarding a material violation of accounting procedures, internal accounting controls or auditing matters or compliance with Law, including from Company Employees regarding questionable accounting, auditing or legal compliance matters have, to To the Knowledge of the Company, there have been received by no violations of provisions of the Company's code of ethics.
(dg) Each There are no Liabilities of the consolidated balance sheets included in or incorporated by reference into the Company Reports (including the related notes and schedules) fairly presents or, in the case of Company Reports filed after the date of this Agreement, will fairly present, in each case, in all material respects, the consolidated financial position of the Company and its Subsidiaries, as of the date of such balance sheet, and each of the consolidated statements of operations, cash flows and changes in stockholders’ equity (deficit) included in or incorporated by reference into the Company Reports (including any related notes and schedules) fairly presents, or, in the case of Company Reports filed after the date of this Agreement, will fairly present, in each case, in all material respects, the results of operations, retained earnings (loss) and changes in financial position, as the case may be, of the Company and its Subsidiaries for the periods set forth therein (subject, in the case of unaudited statements, to notes and normal year-end audit adjustments that are not or will not be material in amount or effect), in each case in accordance with GAAP consistently applied during the periods involved, except as may be noted therein or in the notes thereto.
(e) Neither the Company nor any of its Subsidiaries has incurred any Indebtedness, or issued or sold any debt securities or rights to acquire any debt security of the Company or any of its Subsidiaries, the terms of which, or the terms of any instrument under which such Indebtedness, debt securities or rights were issued, requires the public listing of such Indebtedness, debt securities or rights or the maintenance by the Company or any of its Subsidiaries of registration any kind whatsoever, whether or not accrued and whether or not contingent or absolute, that are material to the Company, are required by GAAP to be set forth on the Company Financial Statements and are not set forth on the Company Financial Statements, other than (i) Liabilities incurred on behalf of the Company under this Agreement and (ii) Liabilities incurred in the Exchange Actordinary course of business consistent with past practice since December 31, 2005, none of which would reasonably be expected to have a Company Material Adverse Effect.
Appears in 1 contract
Company Reports; Financial Statements. (ai) The Company has filed or furnished, as applicable, on a timely basis, all forms, statements, certifications, reports and documents required to be filed or furnished by it with or to the SEC pursuant to the Exchange Act or the Securities Act since June 30January 1, 2014 2011 (the “Applicable Date”) (the such forms, statements, reports and documents publicly filed with or publicly furnished to the SEC since the Applicable Date and those publicly filed with or publicly furnished to the SEC subsequent to the date of this Agreement, in each case as amendedincluding any amendments thereto, the “Company Reports”). Each of the Company ReportsReports (including any financial statements or other schedules included therein), at the time of its filing or being furnished furnished, complied or, if not yet filed or furnished, will comply in all material respects with the applicable requirements of the Securities Act, the Exchange Act and the Xxxxxxxx-Xxxxx Act of 2002 (the “Xxxxxxxx-Xxxxx Act”), and any rules and regulations promulgated thereunder applicable to the Company Reports. As of their respective dates (or, if amended prior to the date of this Agreement, as of the date of such amendment), the Company Reports did not, and any Company Reports filed with or furnished to the SEC subsequent to the date of this Agreement will not, contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements made therein, in light of the circumstances in which they were made, not misleading. No Subsidiary of the Company is subject to the periodic reporting requirements of the Exchange Act. As of the date hereof, there are no outstanding or unresolved comments in comment letters from the SEC staff with respect to any of the Company Reports.
(bii) The Company is in compliance in all material respects with the applicable listing and corporate governance rules and regulations of Nasdaqthe NASDAQ.
(ciii) The Company maintains disclosure controls and procedures required by Rule 13a-15 or 15d-15 under the Exchange Act. Such disclosure controls and procedures are designed effective to ensure that material information required to be disclosed by the Company in its filings with the SEC under the Exchange Act is recorded and reported on a timely basis to the individuals responsible for the preparation of the Company’s filings with the SEC under the Exchange Actand other public disclosure documents. The Company maintains internal control over financial reporting (as defined in Rule 13a-15 or 15d-15, as applicable, under the Exchange Act). Such internal control over financial reporting is designed to provide effective in providing reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with GAAPGAAP in all material respects. The Company has disclosed, based on the most recent evaluation of its Chief Executive Officer and its Chief Financial Officer prior to the date of this Agreement, disclosed to the Company’s auditors and the audit committee of the Company’s Company Board based on its most recent evaluation prior to the date of Directors this Agreement (xA) any all significant deficiencies and material weaknesses in the design or operation of its internal controls over financial reporting that are reasonably likely to adversely affect the Company’s ability to record, process, summarize and report financial information and (yB) any fraud, whether or not material, that involves management or other employees who have a significant role in the Company’s internal control over financial reporting. The Company controls, and the information described in the foregoing clauses (A) and (B) has made available prior to the date of this Agreement been disclosed to Parent (I) either materials relating to or a summary of any disclosure of matters described in clauses (x) or (y) in the preceding sentence made by management of the Company to its auditors and audit committee on or after the Applicable Date and prior to the date of this Agreement and (II) any material communication on or after the Applicable Date and prior to the date of this Agreement made by management of the Company or its auditors to the audit committee as required by the listing standards of Nasdaq, the audit committee’s charter or professional standards of the Public Company Accounting Oversight Board. Since the Applicable Date and prior to the date of this Agreement.
(iv) Since the Applicable Date, no complaints from neither the Company nor any source regarding a material violation Subsidiary of accounting procedures, internal accounting controls the Company has made any prohibited loans to any executive officer of the Company (as defined in Rule 3b-7 promulgated under the Exchange Act) or auditing matters or compliance with Law, including from Company Employees regarding questionable accounting, auditing or legal compliance matters have, to the Knowledge director of the Company, been received . There are no outstanding loans or other extensions of credit made by the Company or any of its Subsidiaries to any executive officer (as defined in Rule 3b-7 promulgated under the Exchange Act) or director of the Company.
(dv) Each of the consolidated balance sheets included in or incorporated by reference into the Company Reports (including the related notes and schedules) fairly presents in all material respects, or, in the case of Company Reports filed after the date of this Agreement, will fairly present, in each case, present in all material respects, the consolidated financial position of the Company and its Subsidiaries, consolidated Subsidiaries as of the its date of such balance sheet, and each of the consolidated statements of operationsincome, consolidated statements of changes in shareholders’ equity and consolidated statements of cash flows and changes in stockholders’ equity (deficit) included in or incorporated by reference into the Company Reports (including any related notes and schedules) fairly presentspresents in all material respects, or, or in the case of Company Reports filed after the date of this Agreement, will fairly present, in each case, present in all material respects, the financial position, results of operations, retained earnings (loss) operation and changes in financial positioncash flows, as the case may be, of the Company and its consolidated Subsidiaries for the periods set forth therein (subject, in the case of unaudited statements, to notes and normal year-end audit adjustments that are not or will not be material in amount or effectadjustments), in each case in accordance with GAAP U.S. generally accepted accounting principles (“GAAP”) applied consistently applied during the periods involvedpresented, except as may be noted therein or in the notes theretotherein.
(e) Neither the Company nor any of its Subsidiaries has incurred any Indebtedness, or issued or sold any debt securities or rights to acquire any debt security of the Company or any of its Subsidiaries, the terms of which, or the terms of any instrument under which such Indebtedness, debt securities or rights were issued, requires the public listing of such Indebtedness, debt securities or rights or the maintenance by the Company or any of its Subsidiaries of registration under the Exchange Act.
Appears in 1 contract
Company Reports; Financial Statements. Except as set forth on Schedule 3.8 hereto:
(a) The Company, and each Company Subsidiary has filed or furnished, as applicable, on a timely basis, all forms, filings, registrations, submissions, statements, certifications, reports and documents required to be filed or furnished by it with or to the SEC pursuant to under the Exchange Act or the Securities Act since June 30December 31, 2014 (the “Applicable Date”) 2006 (the forms, statements, reports and documents filed with or furnished to the SEC since the Applicable Date December 31, 2006 and those filed with or furnished to the SEC subsequent to through the date of this Agreementhereof, in each case as amendedincluding any amendments thereto, the “Company Reports”). Each of the Company Reports, at the time of its filing or being furnished complied orcomplied, or if not yet filed or furnished, will comply comply, in all material respects with the applicable requirements of the Securities Act, the Exchange Act and the Xxxxxxxx-Xxxxx Act of 2002 (the “Xxxxxxxx-Xxxxx Exchange Act”), and any rules and regulations promulgated thereunder applicable to the Company Reports. As of their respective dates (or, if amended prior to the date of this Agreementhereof, as of the date of such amendment), the Company Reports did not, and any Company Reports filed with or furnished to with the SEC subsequent to the date of this Agreement hereof will not, contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements made therein, in light of the circumstances in which they were made, not misleading.
(b) The Company is Company’s consolidated financial statements (including, in compliance each case, any notes thereto) contained in all material respects with the applicable listing and corporate governance rules and regulations of Nasdaq.
(c) The Company maintains disclosure controls and procedures required by Rule 13a-15 or 15d-15 under the Exchange Act. Such disclosure controls and procedures are designed to ensure that information required to be disclosed by the Company in its filings with the SEC under the Exchange Act is recorded and reported on a timely basis to the individuals responsible for the preparation of the Company’s filings with the SEC under the Exchange Act. The Company maintains internal control over financial reporting Reports, were or will be prepared (as defined in Rule 13a-15 or 15d-15, as applicable, under the Exchange Act). Such internal control over financial reporting is designed to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes i) in accordance with GAAP. The Company has disclosed, based GAAP applied on a consistent basis throughout the most recent evaluation of its Chief Executive Officer and its Chief Financial Officer prior to the date of this Agreement, to the Company’s auditors and the audit committee of the Company’s Board of Directors periods indicated (x) any significant deficiencies and material weaknesses except as may be indicated in the design or operation of its internal controls over financial reporting that are reasonably likely to adversely affect the Company’s ability to record, process, summarize and report financial information and (y) any fraud, whether or not material, that involves management or other employees who have a significant role in the Company’s internal control over financial reporting. The Company has made available prior to the date of this Agreement to Parent (I) either materials relating to or a summary of any disclosure of matters described in clauses (x) or (y) in the preceding sentence made by management of the Company to its auditors and audit committee on or after the Applicable Date and prior to the date of this Agreement and (II) any material communication on or after the Applicable Date and prior to the date of this Agreement made by management of the Company or its auditors to the audit committee as required by the listing standards of Nasdaq, the audit committee’s charter or professional standards of the Public Company Accounting Oversight Board. Since the Applicable Date and prior to the date of this Agreement, no complaints from any source regarding a material violation of accounting procedures, internal accounting controls or auditing matters or compliance with Law, including from Company Employees regarding questionable accounting, auditing or legal compliance matters have, to the Knowledge of the Company, been received by the Company.
(d) Each of the consolidated balance sheets included in or incorporated by reference into the Company Reports (including the related notes and schedules) fairly presents thereto or, in the case of Company Reports filed after interim consolidated financial statements, where information and footnotes contained in such financial statements are not required under the rules of the SEC to be in compliance with GAAP) and (ii) in compliance as to form, as of their respective date of this Agreement, will fairly presentfiling with the SEC, in all material respects with applicable accounting requirements and with the published rules and regulations of the SEC with respect thereto, and in each casecase such consolidated financial statements fairly presented, in all material respects, the consolidated financial position position, results of operations, changes in stockholder’s equity and cash flows of the Company and its Subsidiaries, the consolidated Company Subsidiaries as of the date of such balance sheet, respective dates thereof and each of the consolidated statements of operations, cash flows and changes in stockholders’ equity (deficit) included in or incorporated by reference into the Company Reports (including any related notes and schedules) fairly presents, or, in the case of Company Reports filed after the date of this Agreement, will fairly present, in each case, in all material respects, the results of operations, retained earnings (loss) and changes in financial position, as the case may be, of the Company and its Subsidiaries for the respective periods set forth therein covered thereby (subject, in the case of unaudited statements, to notes and normal year-end audit adjustments that which were not and which are not expected to be, individually or will not be in the aggregate, material in amount or effectto the Company and its consolidated Company Subsidiaries taken as a whole).
(c) The audited balance sheets of each of the Company Insurance Subsidiaries as of December 31, 2006, 2007, and 2008 and the related statements of income, surplus and cash flows for the years thus ended, and their respective annual statements for the fiscal years ended December 31, 2006, 2007, and 2008 (the “Insurance Subsidiary Annual Statements”), as filed with the principal Regulatory Authority overseeing insurance businesses conducted in each case the jurisdiction of domicile of such Company Insurance Subsidiary and the National Association of Insurance Commissioners (together, the “Principal Insurance Regulatory Authorities”), have been prepared in accordance with GAAP consistently SAP (as defined below) applied during on a consistent basis and present fairly in all material respects their respective statutory financial conditions as of such date and the results of their respective statutory operations and cash flows for the year then ended. As used herein, “SAP” means the accounting procedures and practices prescribed or permitted from time to time by the respective states of domicile of the Company Insurance Subsidiaries and applied in a consistent manner throughout the periods involved, except as may be noted therein or in the notes thereto.
(e) Neither the Company nor any of its Subsidiaries has incurred any Indebtedness, or issued or sold any debt securities or rights to acquire any debt security . The balance sheets of the Company and the Company Subsidiaries at dates after December 31, 2008, and the related statements of income, surplus and cash flows, which have been filed with the Principal Insurance Regulatory Authorities (the “2009 SAP Statements” and together with the Insurance Subsidiary Annual Statements, the “SAP Statement”), copies of which have been made available to the Purchaser by the Company, have been prepared in accordance with SAP applied on a consistent basis and present fairly in all material respects the applicable Company Insurance Subsidiaries’ respective statutory financial conditions as of such dates and the results of their respective operations and cash flows. Schedule 3.8(c) heretosets forth all prescribed or permitted accounting practices that have been adopted since December 31, 2006, by any of its the Company Insurance Subsidiaries, and the terms of which, or the terms of any instrument under which such Indebtedness, debt securities or rights were issued, requires the public listing effect of such Indebtedness, debt securities prescribed or rights or permitted practices are fully and accurately reflected in the maintenance by the Company or any of its Subsidiaries of registration under the Exchange ActSAP-basis financial statements described above.
Appears in 1 contract
Samples: Stock and Warrant Purchase Agreement (Paulson & Co Inc)
Company Reports; Financial Statements. (a) The Company has filed or furnished, as applicable, on a timely basis, all forms, statements, certifications, reports and documents Company Reports required to be filed or furnished by it with or to the SEC pursuant to the Exchange Act or the Securities Act since June 30, 2014 (the “Applicable Date”) (the forms, statements, reports and documents filed with or furnished to the SEC since the Applicable Date and those filed with or furnished to the SEC subsequent to the date of this Agreement, in each case as amended, the “Company Reports”). Each of the Company Reports, at the time of its filing or being furnished complied or, if not yet filed or furnished, will comply in all material respects with the applicable requirements of the Securities Act, the Exchange Act and the Xxxxxxxx-Xxxxx Act of 2002 (the “Xxxxxxxx-Xxxxx Act”), and any rules and regulations promulgated thereunder applicable to the Company ReportsSEC. As of their respective dates (filing date or, if amended prior to the date of this Agreementamended, as of the date of that last such amendment, each Company Report has complied in all material respects with all requirements of the Securities Act and the Exchange Act, as applicable, that are applicable to the Company (including based on its status as a smaller reporting company and an emerging growth company under Rule 12b-2 of the Exchange Act), . None of the Company Reports did notcontained when filed (and, in the case of registration statements and any Company Reports filed with or furnished to proxy statements, on the SEC subsequent to dates of effectiveness and the date dates of this Agreement will notmailing, contain respectively) any untrue statement of a material fact or omit omitted or omits or will omit, as the case may be, to state a material fact required to be stated or incorporated by reference therein or necessary to make the statements made therein, in the light of the circumstances in under which they were or are made, not misleading. As of the date hereof, (i) there are no outstanding or unresolved comments received from the SEC with respect to any of the Company Reports and (ii) to the Knowledge of the Company, none of the Company Reports is the subject of any ongoing SEC review or outstanding SEC investigation.
(b) The Company has made available (including via the SEC’s EXXXX system, as applicable) to Parent copies of all of the Company Financial Statements. The Company Financial Statements (i) comply as to form, as of the dates and for the periods referred to therein and as of their respective filing dates with the SEC, in all material respects with the applicable accounting requirements and the applicable published rules and regulations of the SEC with respect thereto (subject to any exceptions to such rules and regulations granted to the Company in light of its status as a smaller reporting company and an emerging growth company under Rule 12b-2 of the Exchange Act) and (ii) fairly present, in conformity in all material respects with GAAP as in effect on the date of such statement, in each case, consistently applied for the periods involved, the consolidated financial position of the Company at the respective dates thereof and the consolidated results of its operations and changes in cash flows for the respective periods indicated (subject, in the case of unaudited statements, to normal year-end audit adjustments consistent with GAAP).
(c) There are no liabilities of the Company or any of its Subsidiaries that would be required by GAAP to be reflected on a consolidated balance sheet of the Company and its Subsidiaries, other than liabilities (i) disclosed and provided for in the Company Balance Sheet or in the balance sheets included in the Company Reports, (ii) incurred in the ordinary course of business since December 31, 2022, (iii) incurred by or on behalf of the Company in connection with the transactions contemplated by this Agreement, or (iv) which would not, individually or in the aggregate, reasonably be likely to be material to the Company and its Subsidiaries, taken as a whole.
(d) The Company is in compliance in all material respects with (i) the applicable listing provisions of the Sxxxxxxx-Xxxxx Act of 2002, as amended, and corporate governance the rules and regulations of Nasdaq.
the SEC promulgated thereunder (ccollectively, the “Sxxxxxxx-Xxxxx Act”) The that are applicable to the Company maintains disclosure controls (including based on its status as a smaller reporting company and procedures an emerging growth company under Rule 12b-2 of the Exchange Act); and (ii) the rules and regulations of the NASDAQ Capital Market that are applicable to the Company (including based on its status as a smaller reporting company and an emerging growth company under Rule 12b-2 of the Exchange Act). With respect to each Company Report on Form 10-K or 10-Q, each of the principal executive officer and the principal financial officer of the Company has made all certifications required by Rule 13a-15 13a-14 or 15d-15 under the Exchange Act. Such disclosure controls and procedures are designed to ensure that information required to be disclosed by the Company in its filings with the SEC 15(d) under the Exchange Act is recorded and reported on a timely basis to the individuals responsible for the preparation Sections 302 and 906 of the Company’s filings Sxxxxxxx-Xxxxx Act with respect to such Company Reports and the SEC under the Exchange Act. statements in such certifications are true and accurate in all material respects.
(e) The Company maintains maintains, on behalf of itself and its Subsidiaries, a system of internal control over financial reporting (as such term is defined in Rule 13a-15 or 15d-15, as applicable, Rules 13a-15(f) and 15d-15(f) under the Exchange Act and applies to smaller reporting companies and emerging growth companies under Rule 12b-2 of the Exchange Act). Such internal control over financial reporting ) that is reasonably designed and implemented to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with GAAPGAAP including policies and procedures that (i) require the maintenance of records that in reasonable detail accurately and fairly reflect the transactions and dispositions of the assets of the Company and its Subsidiaries, (ii) provide reasonable assurance that transactions are recorded as necessary to permit preparation of financial statements in accordance with GAAP and that receipts and expenditures of the Company and its Subsidiaries are being made only in accordance with appropriate authorizations of the Company’s management and the Company Board of Directors and (iii) provide assurance regarding prevention or timely detection of unauthorized acquisition, use, or disposition of the assets of the Company and its Subsidiaries. No material weaknesses or significant deficiencies exist with respect to the internal control over financial reporting of the Company that have not been disclosed in the Company Reports as filed with or furnished to the SEC prior to the date of this Agreement. The Company has disclosed, based on the its most recent evaluation of its Chief Executive Officer and its Chief Financial Officer prior to the date of this Agreementevaluation, to the Company’s outside auditors and the audit committee of the Company’s Company Board of Directors Directors, (xi) any all significant deficiencies and material weaknesses in the design or and operation of its internal controls control over financial reporting that which are reasonably likely to adversely affect in any material respect the Company’s ability to record, process, summarize and report financial information data and (yii) any fraud, whether or not material, that involves management or other employees who have a significant role in the Company’s internal control over financial reporting. .
(f) The Company has made available prior established and maintains disclosure controls and procedures (as such term is defined in paragraph (e) of Rule 13a-15 under the Exchange Act) as required by Rule 13a-15 under the Exchange Act, reasonably designed and implemented to ensure that information required to be disclosed by the date of this Agreement to Parent (I) either materials relating to or a summary of any disclosure of matters described in clauses (x) or (y) Company in the preceding sentence made reports that it files and submits under the Exchange Act is recorded, processed, summarized and reported within the time periods specified in the SEC’s rules and forms, including that information required to be disclosed by the Company in the reports that it files and submits under the Exchange Act is accumulated and communicated to management of the Company, as appropriate, to allow timely decisions regarding required disclosure.
(g) Since December 31, 2021, (i) neither the Company to nor any of its auditors and audit committee on or after the Applicable Date and prior Subsidiaries nor, to the date of this Agreement and (II) Company’s Knowledge, any material communication on director or after the Applicable Date and prior to the date of this Agreement made by management officer of the Company or any of its auditors to Subsidiaries has received any complaint, allegation, assertion, or claim that the audit committee as required Company or any of its Subsidiaries has engaged in any material improper or illegal accounting or auditing practices or maintains improper or inadequate internal accounting controls, and (ii) no attorney representing the Company or any of its Subsidiaries, whether or not employed by the listing standards Company or any of Nasdaqits Subsidiaries, the audit committee’s charter or professional standards has reported evidence of the Public Company Accounting Oversight Board. Since the Applicable Date and prior to the date of this Agreement, no complaints from any source regarding a material violation of accounting proceduressecurities Laws, internal accounting controls breach of fiduciary duty or auditing matters similar violation by the Company or compliance with Lawany of its Subsidiaries or their respective officers, including from Company Employees regarding questionable accountingdirectors, auditing employees or legal compliance matters have, agents to the Knowledge Company Board of Directors or any committee thereof or to any director or officer of the Company, been received by Company pursuant to the Companyrules of the SEC adopted under Section 307 of the Sxxxxxxx-Xxxxx Act.
(d) Each of the consolidated balance sheets included in or incorporated by reference into the Company Reports (including the related notes and schedules) fairly presents or, in the case of Company Reports filed after the date of this Agreement, will fairly present, in each case, in all material respects, the consolidated financial position of the Company and its Subsidiaries, as of the date of such balance sheet, and each of the consolidated statements of operations, cash flows and changes in stockholders’ equity (deficit) included in or incorporated by reference into the Company Reports (including any related notes and schedules) fairly presents, or, in the case of Company Reports filed after the date of this Agreement, will fairly present, in each case, in all material respects, the results of operations, retained earnings (loss) and changes in financial position, as the case may be, of the Company and its Subsidiaries for the periods set forth therein (subject, in the case of unaudited statements, to notes and normal year-end audit adjustments that are not or will not be material in amount or effect), in each case in accordance with GAAP consistently applied during the periods involved, except as may be noted therein or in the notes thereto.
(eh) Neither the Company nor any of its Subsidiaries has incurred is a party to, nor do they have any Indebtednessobligation or other commitment to become a party to, or issued or sold any debt securities or rights to acquire any debt security “off-balance sheet arrangements” (as defined in Item 303(a) of the Company or any of its Subsidiaries, the terms of which, or the terms of any instrument under which such Indebtedness, debt securities or rights were issued, requires the public listing of such Indebtedness, debt securities or rights or the maintenance by the Company or any of its Subsidiaries of registration Regulation S-K under the Exchange Act) where the result, purpose or intended effect of such contract is to avoid disclosure of any material transaction involving, or material liabilities of, the Company and its Subsidiaries in the Company Reports.
Appears in 1 contract
Samples: Merger Agreement (Vericity, Inc.)
Company Reports; Financial Statements. (ai) The audited consolidated statement of income and audited consolidated statement of cash flows of the Company has filed or furnishedand its Subsidiaries for the fiscal year ended December 31, 2015 and the audited consolidated balance sheet of the Company and its Subsidiaries as applicable, on a timely basis, at such date included in Company SEC Documents (including all forms, statements, certifications, reports related notes and documents required to be filed or furnished by it with or to the SEC pursuant to the Exchange Act or the Securities Act since June 30, 2014 schedules thereto) (collectively the “Applicable DateSEC Company Financials”) (the forms, statements, reports and documents filed with or furnished to the SEC since the Applicable Date and those filed with or furnished to the SEC subsequent to the date of this Agreement, in each case as amended, the “Company Reports”). Each of the Company Reports, at the time of its filing or being furnished complied or, if not yet filed or furnished, will comply A) fairly present in all material respects with the applicable requirements of the Securities Act, the Exchange Act and the Xxxxxxxx-Xxxxx Act of 2002 (the “Xxxxxxxx-Xxxxx Act”), and any rules and regulations promulgated thereunder applicable to the Company Reports. As of their respective dates (or, if amended prior to the date of this Agreement, except as of the date of such amendment), the Company Reports did not, and any Company Reports filed with or furnished to the SEC subsequent to the date of this Agreement will not, contain any untrue statement of a material fact or omit to state a material fact required to may be stated indicated therein or necessary to make the statements made therein, in light of the circumstances in which they were made, not misleading.
(b) The Company is in compliance in all material respects with the applicable listing and corporate governance rules and regulations of Nasdaq.
(c) The Company maintains disclosure controls and procedures required by Rule 13a-15 or 15d-15 under the Exchange Act. Such disclosure controls and procedures are designed to ensure that information required to be disclosed by the Company in its filings with the SEC under the Exchange Act is recorded and reported on a timely basis to the individuals responsible for the preparation of the Company’s filings with the SEC under the Exchange Act. The Company maintains internal control over financial reporting (as defined in Rule 13a-15 or 15d-15, as applicable, under the Exchange Act). Such internal control over financial reporting is designed to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with GAAP. The Company has disclosed, based on the most recent evaluation of its Chief Executive Officer and its Chief Financial Officer prior to the date of this Agreement, to the Company’s auditors and the audit committee of the Company’s Board of Directors (x) any significant deficiencies and material weaknesses in the design or operation of its internal controls over financial reporting that are reasonably likely to adversely affect the Company’s ability to record, process, summarize and report financial information and (y) any fraud, whether or not material, that involves management or other employees who have a significant role in the Company’s internal control over financial reporting. The Company has made available prior to the date of this Agreement to Parent (I) either materials relating to or a summary of any disclosure of matters described in clauses (x) or (y) in the preceding sentence made by management of the Company to its auditors and audit committee on or after the Applicable Date and prior to the date of this Agreement and (II) any material communication on or after the Applicable Date and prior to the date of this Agreement made by management of the Company or its auditors to the audit committee as required by the listing standards of Nasdaq, the audit committee’s charter or professional standards of the Public Company Accounting Oversight Board. Since the Applicable Date and prior to the date of this Agreement, no complaints from any source regarding a material violation of accounting procedures, internal accounting controls or auditing matters or compliance with Law, including from Company Employees regarding questionable accounting, auditing or legal compliance matters have, to the Knowledge of the Company, been received by the Company.
(d) Each of the consolidated balance sheets included in or incorporated by reference into the Company Reports (including the related notes and schedules) fairly presents or, in the case of Company Reports filed after the date of this Agreement, will fairly present, in each case, in all material respectsthereto), the consolidated financial position of the Company and its Subsidiaries, Subsidiaries as of at the date of such balance sheet, thereof and each of the consolidated statements results of operations, operations and cash flows and changes in stockholders’ equity (deficit) included in or incorporated by reference into the Company Reports (including any related notes and schedules) fairly presents, or, in the case of Company Reports filed after the date of this Agreement, will fairly present, in each case, in all material respects, the results of operations, retained earnings (loss) and changes in financial position, as the case may be, of the Company and its Subsidiaries for the periods set forth therein period then ended, (subjectB) comply in all material respects with the published rules and regulations of the SEC with respect thereto, in the case of unaudited statements, to notes and normal year-end audit adjustments that are not or will not be material in amount or effect), in each case (C) have been prepared in accordance with GAAP consistently applied on a consistent basis during the periods involved (except as may be indicated in the notes thereto).
(ii) Attached to Section 2.2(d)(ii) of the Seller Disclosure Letter are complete and correct copies of (1) the audited consolidated statement of income and audited consolidated statement of cash flows of the Company and its Subsidiaries for the fiscal year ended December 31, 2016 and the audited consolidated balance sheet of the Company and its Subsidiaries as at such date (the “Audited Financial Statements” and together with the SEC Company Financials and the Unaudited Financial Statements (as defined below), the “Financial Statements”) and (2) the unaudited consolidated statement of income and unaudited consolidated statement of cash flows of the Company and its Subsidiaries for the quarterly period ended March 31, 2017 and the unaudited consolidated balance sheet of the Company and its Subsidiaries as at such date (the “Unaudited Financial Statements”). The Audited Financial Statements and the Unaudited Financial Statements (A) have been prepared in accordance with GAAP applied on a consistent basis during the periods involved, except as may be noted therein or in the notes thereto.
; (eB) Neither present fairly, in all material respects, the Company nor any of its Subsidiaries has incurred any Indebtedness, or issued or sold any debt securities or rights to acquire any debt security consolidated financial position of the Company or any and its Subsidiaries as at the date thereof and the consolidated results of operations and cash flows of the Company and its Subsidiaries for the period then ended (except as may be indicated in the notes thereto and subject to normal year-end audit adjustments in the case of the Unaudited Financial Statements); and (C) accurately reflect in all material respects the books of account and other financial records of the Company and its Subsidiaries, the terms of which, or the terms of any instrument under which such Indebtedness, debt securities or rights were issued, requires the public listing of such Indebtedness, debt securities or rights or the maintenance by the Company or any of its Subsidiaries of registration under the Exchange Act.
Appears in 1 contract
Samples: Membership Interest Purchase Agreement (Golden Entertainment, Inc.)
Company Reports; Financial Statements. (ai) The Company has filed or furnished, as applicable, on a timely basis, all forms, statements, certifications, reports and documents required to be filed or furnished by it with or to the SEC pursuant to under the Exchange Act or the Securities Act since June 30of 1933, 2014 as amended and the rules and regulations thereunder (the “"Securities Act") since May 1, 2004 (the "Applicable Date”") (the forms, statements, reports and documents filed with or furnished to the SEC since the Applicable Date and those filed with or furnished to the SEC subsequent to the date of this Agreementhereof, in each case as amendedincluding any amendments thereto, the “"Company Reports”"). Each of the Company Reports, at the time of its filing or being furnished complied or, if not yet filed or furnished, will comply in all material respects with with, to the extent in effect at the time of filing, the applicable requirements of the Securities Act, the Exchange Act and the Xxxxxxxx-Xxxxx Act of 2002 (the “"Xxxxxxxx-Xxxxx Act”"), and any rules and regulations promulgated thereunder applicable to the Company Reports. As of their respective dates (or, if amended prior to the date of this Agreementhereof, as of the date of such amendment), the Company Reports did not, and any Company Reports filed with or furnished to the SEC subsequent to the date of this Agreement will not, not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements made therein, in light of the circumstances in which they were made, not misleading.
(bii) The Except as permitted by the Exchange Act, including Sections 13(k)(2) and (3) or rules of the SEC, since the enactment of the Xxxxxxxx-Xxxxx Act, neither the Company is nor any of its Subsidiaries has made, arranged or modified (in compliance any material way) any extensions of credit in all material respects with the applicable listing and corporate governance rules and regulations form of Nasdaqa personal loan to any executive officer or director of the Company.
(ciii) The Company maintains disclosure controls and procedures required by Rule 13a-15 or 15d-15 under the Exchange Act. Such disclosure controls and procedures are designed effective to ensure that information required to be disclosed by the Company in its filings with the SEC under the Exchange Act is recorded and reported on a timely basis to the individuals responsible for the preparation of the Company’s 's filings with the SEC under the Exchange Actand other public disclosure documents. The Company maintains internal control over financial reporting (as defined in Rule 13a-15 or 15d-15, as applicable, under the Exchange Act). Such internal control over financial reporting is designed to provide effective in providing reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with GAAP. The Company has discloseddisclosed and identified, based on the most recent evaluation of its Chief Executive Officer chief executive officer and its Chief Financial Officer chief financial officer prior to the date of this Agreementhereof, to for the Company’s 's auditors and the audit committee of the Company’s Board 's board of Directors directors (xA) any significant deficiencies and material weaknesses in the design or operation of its internal controls over financial reporting that are reasonably likely to adversely affect the Company’s 's ability to record, process, summarize and report financial information information, (B) any material weaknesses in internal control over financial reporting and (yC) any fraud, whether or not material, that involves management or other employees who have a significant role in the Company’s 's internal control over financial reporting. The Company has made available prior to the date of this Agreement to Parent (I) either materials relating to or a summary of any disclosure of matters described in clauses (x) or (y) in the preceding sentence made by management of the Company to its auditors and audit committee on or after the Applicable Date and prior to the date of this Agreement and (II) any material communication on or after the Applicable Date and prior to the date of this Agreement made by management of the Company or its auditors to the audit committee as required by the listing standards of Nasdaq, the audit committee’s charter or professional standards of the Public Company Accounting Oversight Board. Since the Applicable Date and prior to the date of this AgreementDate, no material complaints from any source regarding a material violation of accounting proceduresaccounting, internal accounting controls or auditing matters or compliance with Lawmatters, including and no concerns from Company Employees employees regarding material questionable accountingaccounting or auditing matters, auditing or legal compliance matters have, to the Knowledge of the Company, have been received by the Company from any person in writing, from the Company's outside auditors, actuaries or attorneys, or on the hotline maintained by the Company for such purposes. No attorney representing the Company or any of its Subsidiaries, whether or not employed by the Company or any of its Subsidiaries, has reported evidence of a violation of securities laws, breach of fiduciary duty or similar violation by the Company or any of its officers, directors, employees or agents to the Company's chief legal officer, audit committee (or other committee designated for the purpose) of the board of directors or the board of directors pursuant to the rules adopted pursuant to Section 307 of the Xxxxxxxx-Xxxxx Act or any Company policy contemplating such reporting, including in instances not required by those rules. Since the Applicable Date, any material change in internal control over financial reporting or failure or inadequacy of disclosure controls required to be disclosed in the Company Reports has been so disclosed.
(div) Each of the The consolidated balance sheets included in or incorporated by reference into the Company Reports (including the related notes and schedules) fairly presents or, in the case of Company Reports filed after the date of this Agreement, will fairly present, in each case, in all material respects, the consolidated financial position of the Company and its consolidated Subsidiaries, taken as a whole, as of the date of such balance sheettheir respective dates, and each of the consolidated statements of operations, cash flows and changes in stockholders’ shareholders equity (deficit) and cash flows included in or incorporated by reference into the Company Reports (including any related notes and schedules) fairly presents, or, in the case of Company Reports filed after the date of this Agreement, will fairly present, in each case, in all material respects, the results of operations, retained earnings (loss) and changes in financial position, as the case may be, of the Company and its Subsidiaries consolidated Subsidiaries, taken as a whole, for the periods set forth therein (subject, in the case of unaudited statements, to notes and normal year-end audit adjustments that are not or will not be material in amount or effect), ; and in each case were prepared in accordance with GAAP consistently applied during the periods involved, except as may be noted therein or in the notes theretotherein.
(ev) Neither The Company has previously furnished or made available to Parent true and complete copies of the annual statements or other comparable statements for each of the years ended December 31, 2004, and December 31, 2005 and December 31, 2006, together with all exhibits and schedules thereto (collectively, the "Company nor any of its Subsidiaries has incurred any IndebtednessSAP Statements"), or issued or sold any debt securities or rights with respect to acquire any debt security each of the Company Insurance Subsidiaries, in each case as filed with the Governmental Entity charged with supervision of insurance companies of such Company Insurance Subsidiary's jurisdiction of domicile. The Company SAP Statements were prepared in conformity with applicable statutory accounting practices prescribed or permitted by such Governmental Entity applied on a consistent basis ("SAP") and present fairly, in all material respects, to the extent required by and in conformity with SAP, the statutory financial condition of such Company Insurance Subsidiary at their respective dates and the results of operations, changes in capital and surplus and cash flow of such Company Insurance Subsidiary for each of the periods then ended. The Company SAP Statements were filed with the applicable Governmental Entity in a timely fashion on forms prescribed or permitted by such Governmental Entity. No deficiencies or violations material to the financial condition of any of its the Company Insurance Subsidiaries, individually, whether or not material in the terms of whichaggregate, have been asserted in writing by any Governmental Entity which have not been cured or otherwise resolved to the terms of any instrument under which such Indebtedness, debt securities or rights were issued, requires the public listing satisfaction of such IndebtednessGovernmental Entity (unless not currently pending). The Company has made available to Parent true and complete copies of all financial examinations, debt securities market-conduct examinations and other reports of Governmental Entities since December 31, 2004, including the most recent reports of state insurance regulatory authorities, relating to each Company Insurance Subsidiary. The quarterly and annual statements of each Company Insurance Subsidiary filed on or rights after the date hereof and prior to the Closing ("Interim SAP Statements"), when filed with the applicable Governmental Entities, including insurance regulatory authorities, of the applicable jurisdictions, will present fairly, to the extent required by and in conformity with SAP in all material respects, the statutory financial condition of such Company Insurance Subsidiary at their respective dates indicated and the results of operations, changes in capital and surplus and cash flow of such Company Insurance Subsidiary for each of the periods therein specified (subject to normal year-end adjustments) and will be filed in a timely fashion on forms prescribed or the maintenance permitted by the relevant Governmental Entity. The Company will deliver to Parent true, correct and complete copies of the Interim SAP Statements promptly after they are filed with the applicable Governmental Entity in the domiciliary states.
(vi) The aggregate reserves for claims, losses (including, without limitation, incurred but not reported losses), loss adjustment expenses (whether allocated or any unallocated) and unearned premium, as reflected in each of its Subsidiaries the Company SAP Statements, (A) were determined in accordance with presently accepted actuarial standards consistently applied (except as otherwise noted in the financial statements and notes thereto included in such financial statements); (B) are fairly stated in accordance with sound actuarial principles; (C) were computed on the basis of registration under methodologies consistent in all material respects with those used in computing the Exchange Actcorresponding reserves in the prior fiscal years (except as otherwise noted in the financial statements and notes thereto included in such financial statements) and (D) include provisions for all actuarial reserves and related items which ought to be established in accordance with applicable Laws.
Appears in 1 contract
Samples: Merger Agreement (American International Group Inc)
Company Reports; Financial Statements. (ai) The Company has filed or furnished, as applicable, on a timely basis, all forms, statements, certifications, reports and documents required to be filed or furnished by it with or to the SEC U.S. Securities and Exchange Commission (the “SEC”) pursuant to the Exchange Act or the Securities Act since June 30, 2014 2015 (the “Applicable Date”) (the forms, statements, reports and documents filed with or furnished to the SEC since the Applicable Date and those filed with or furnished to the SEC subsequent to the date of this Agreement, in each case as amended, the “Company Reports”). Each of the Company Reports, at the time of its filing or being furnished furnished, complied or, if not yet filed or furnished, will comply in all material respects with the applicable requirements of the Securities Act, the Exchange Act Act, and the Xxxxxxxx-Xxxxx Act of 2002 2002, as amended (the “Xxxxxxxx-Xxxxx Act”), and any rules and regulations promulgated thereunder applicable to the Company Reports. As of their respective dates (or, if amended prior to the date of this Agreement, as of the date of such amendment), the Company Reports did not, and any Company Reports filed with or furnished to the SEC subsequent to the date of this Agreement will not, contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements made therein, in light of the circumstances in which they were made, not misleading. As of the date of this Agreement, there are no material outstanding or unresolved comments in comment letters from the SEC staff with respect to any of the Company Reports. As of the date of this Agreement, to the Knowledge of the Company, none of the Company Reports is the subject of ongoing SEC review, outstanding SEC comment or outstanding SEC investigation. None of the Company’s Subsidiaries is required to file any forms, reports, registrations, statements or other documents with the SEC.
(bii) The Company is in compliance in all material respects with the applicable listing and corporate governance rules and regulations of Nasdaqthe NASDAQ.
(ciii) The Company maintains disclosure controls and procedures required by Rule 13a-15 or 15d-15 under the Exchange Act. Such disclosure controls and procedures are designed to ensure that information required to be disclosed by the Company in its filings with the SEC under the Exchange Act is recorded and reported on a timely basis to the individuals responsible for the preparation of the Company’s filings with the SEC under the Exchange Act. The Company maintains internal control over financial reporting (as defined in Rule 13a-15 or 15d-15, as applicable, under the Exchange Act). Such internal control over financial reporting is designed to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with GAAP. The Company has disclosed, based on the most recent evaluation of its Chief Principal Executive Officer and its Chief Financial Officer prior to the date of this Agreement, to the Company’s auditors and the audit committee of the Company’s Board board of Directors directors (x) any significant deficiencies and material weaknesses in the design or operation of its internal controls over financial reporting that are reasonably likely to adversely affect the Company’s ability to record, process, summarize and report financial information and (y) any fraud, whether or not material, that involves management or other employees who have a significant role in the Company’s internal control over financial reporting. The Company has made available prior to the date of this Agreement to Parent (I) either materials relating to or a summary of any disclosure of matters described in clauses (x) or (y) in the preceding sentence made by management of the Company to its auditors and audit committee on or after the Applicable Date and prior to the date of this Agreement and (II) any material communication on or after the Applicable Date and prior to the date of this Agreement made by management of the Company or its auditors to the audit committee as required by the listing standards of Nasdaqthe NASDAQ, the audit committee’s charter or professional standards of the Public Company Accounting Oversight Board. Since the Applicable Date and prior to the date of this AgreementDate, no complaints from any source regarding a material violation of accounting procedures, internal accounting controls or auditing matters or compliance with Law, including from employees of the Company Employees or its Subsidiaries regarding questionable accounting, auditing or legal compliance matters have, to the Knowledge of the Company, been received by the Company.
(div) No executive officer of the Company has failed, in the last two (2) years, to make the certifications required of him or her under Section 302 or 906 of the Xxxxxxxx-Xxxxx Act with respect to any Company Report, except as disclosed in certifications filed with such Company Report. Neither the Company nor any of its executive officers has, in the last two (2) years, received written notice from any Governmental Entity challenging or questioning the accuracy, completeness, form or manner of filing of such certifications. Since the Applicable Date, the Company and each of its officers and, to the Knowledge of the Company, each of its directors, have been and are in compliance in all material respects with the applicable provisions of the Xxxxxxxx-Xxxxx Act and the rules and regulations promulgated thereunder.
(v) Each of the consolidated balance sheets included in or incorporated by reference into the Company Reports (including the related notes and schedules) fairly presents or, in the case of Company Reports filed after the date of this Agreement, will fairly present, in each case, in all material respects, the consolidated financial position of the Company and its Subsidiaries, as of the date of such balance sheet, and each of the consolidated statements of operationsincome, cash flows and changes in stockholders’ equity (deficit) included in or incorporated by reference into the Company Reports (including any related notes and schedules) fairly presents, or, in the case of Company Reports filed after the date of this Agreement, will fairly present, in each case, in all material respects, the results of operations, retained earnings (loss) and changes in financial position, as the case may be, of the Company and its Subsidiaries for the periods set forth therein (subject, in the case of unaudited interim statements, to notes and normal year-end audit adjustments that are not or will not be material in amount or effect), in each case in accordance with GAAP consistently applied during the periods involved, except as may be noted therein or in the notes thereto.
(evi) Neither the Company nor any of its Subsidiaries has incurred any Indebtedness, or issued or sold any debt securities or rights to acquire any debt security of the Company or any of its Subsidiaries. As used in this Agreement, the terms term “Indebtedness” means, with respect to any Person, without duplication, all obligations or undertakings (including, as applicable, in respect of whichoutstanding principal and accrued and unpaid interest, fees, penalties, premiums and any other fees, expenses or breakage costs) by such Person (A) for borrowed money (including deposits or advances of any kind to such Person); (B) evidenced by bonds, debentures, notes or similar instruments; (C) for capitalized leases, synthetic lease obligations (or lease obligations that should have been on the books and records or financial statements of such Person as categorized or synthetic lease obligations in accordance with GAAP); (D) earn-outs or the deferred and unpaid purchase price of property, goods or services (but excluding trade payables, accrued expenses, and accruals incurred in the ordinary course of business); (E) pursuant to securitization or factoring programs or arrangements; (F) to maintain or cause to be maintained the financing or financial position of others; (G) for net cash payment obligations of such Person under swaps, options, derivatives and other hedging Contracts or arrangements that will be payable upon termination thereof (assuming termination on the date of determination); (H) for letters of credit, bank guarantees, and other similar Contracts or arrangements entered into by or on behalf of such Person to the extent they have been drawn upon; (I) for all indebtedness secured by a Lien on property or assets owned or acquired by such Person, whether or not the Indebtedness secured thereby has been assumed; (J) for any commitment that assures a creditor against loss, including actual or contingent reimbursement obligations with respect to letters of credit, bankers’ acceptances, performance bonds, surety bonds or similar obligations to the extent drawn upon; (K) for the repurchase of equity interests of the Company; (L) for all guarantees of such Person of any indebtedness of any other Person described in clauses (A) through (K) of this sentence, other than a wholly owned Subsidiary of such Person.
(vii) Neither the Company nor any of its Subsidiaries is, or has any commitment to become, a party to any joint venture, off-balance sheet partnership or any similar Contract (including any Contract relating to any transaction or relationship between or among the terms Company and any of its Subsidiaries, on the one hand, and any unconsolidated affiliate, on the other hand), including any structured finance, special purpose or limited purpose entity or Person, or any “off-balance sheet arrangements” (as defined in Item 303(a) of Regulation S-K under the Securities Act), where the result, purpose or intended effect of such Contract is to avoid disclosure of any instrument under which such Indebtednessmaterial transaction involving, debt securities or rights were issuedmaterial liabilities of, requires the public listing of such Indebtedness, debt securities or rights or the maintenance by the Company or any of its Subsidiaries in the Company Reports (including any audited financial statements and unaudited interim financial statements of registration under the Exchange ActCompany included therein).
Appears in 1 contract
Samples: Merger Agreement (Athenahealth Inc)
Company Reports; Financial Statements. (ai) The Company has filed or furnished, as applicable, on a timely basis, all forms, statements, certifications, reports and documents required to be filed or furnished by it with or to the SEC pursuant to the Exchange Act or the Securities Act of 1933, as amended (the “Securities Act”) since June 30December 31, 2014 2005 (the “Applicable Date”) (the forms, statements, reports and documents filed with or furnished to the SEC since the Applicable Date and those filed with or furnished to the SEC subsequent to the date of this Agreement, in each case as amendedincluding any amendments thereto, the “Company Reports”). Each of the Company Reports, at the time of its filing or being furnished complied in all material respects or, if not yet filed or furnished, will comply in all material respects with the applicable requirements of the Securities Act, the Exchange Act and the Xxxxxxxx-Xxxxx Act of 2002 (the “Xxxxxxxx-Xxxxx Act”), and any rules and regulations promulgated thereunder applicable to the Company Reports. As of their respective dates (or, if amended prior to the date of this Agreement, as of the date of such amendment), the Company Reports did not, and any Company Reports filed with or furnished to the SEC subsequent to the date of this Agreement will not, contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements made therein, in light of the circumstances in which they were made, not misleading.
(bii) The Company is in compliance in all material respects with the applicable listing and corporate governance rules and regulations of Nasdaqthe New York Stock Exchange (the “NYSE”). Except as permitted by the Exchange Act, including Section 13(k)(2) and Section 13(k)(3) thereof or rules of the SEC, since the enactment of the Xxxxxxxx-Xxxxx Act, neither the Company nor any of its Affiliates has made, arranged or modified (in any material way) any extensions of credit in the form of a personal loan to any executive officer or director of the Company or any of its Affiliates. For purposes of this Agreement, the term “Affiliate” when used with respect to any party shall mean any Person who is an “affiliate” of that party within the meaning of Rule 405 promulgated under the Securities Act.
(ciii) The Company maintains disclosure controls and procedures required by Rule 13a-15 or Rule 15d-15 under the Exchange Act. Such disclosure controls and procedures are designed effective to ensure that material information required to be disclosed by the Company in its filings with the SEC under the Exchange Act is recorded and reported on a timely basis to the individuals responsible for the preparation of the Company’s filings with the SEC under the Exchange Actand other public disclosure documents. The Company maintains internal control over financial reporting (as defined in Rule 13a-15 or Rule 15d-15, as applicable, under the Exchange Act). Such internal control over financial reporting is designed to provide effective in providing reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with GAAP and includes policies and procedures that (i) pertain to the maintenance of records that in reasonable detail accurately and fairly reflect the transactions and dispositions of the assets of the Company, (ii) provide reasonable assurance that transactions are recorded as necessary to permit preparation of financial statements in accordance with GAAP, and that receipts and expenditures of the Company are being made only in accordance with authorizations of management and directors of the Company, and (iii) provide reasonable assurance regarding prevention or timely detection of unauthorized acquisition, use or disposition of the Company’s assets that could have a material effect on its financial statements. The Company has disclosed, based on the most recent evaluation of its Chief Executive Officer chief executive officer and its Chief Financial Officer chief financial officer prior to the date of this Agreement, to the Company’s auditors and the audit committee of the Company’s Board board of Directors directors (xA) any significant deficiencies and material weaknesses in the design or operation of its internal controls over financial reporting that are reasonably likely to adversely affect the Company’s ability to record, process, summarize and report financial information and has identified for the Company’s auditors and audit committee of the Company’s board of directors any material weaknesses in internal control over financial reporting and (yB) any fraud, whether or not material, that involves management or other employees who have a significant role in the Company’s internal control over financial reporting. The Company has made available prior to the date of this Agreement to Parent (Ii) either materials relating to or a summary of any such disclosure of matters described in clauses (x) or (y) in the preceding sentence made by management of to the Company to its Company’s auditors and audit committee on or after since the Applicable Date and prior to the date of this Agreement and (IIii) any material communication on or after since the Applicable Date and prior to the date of this Agreement made by management of or the Company or its Company’s auditors to the audit committee as required or contemplated by the listing standards of Nasdaqthe NYSE, the audit committee’s charter or professional standards of the Public Company Accounting Oversight Board. Since the Applicable Date and prior to the date of this AgreementDate, no material complaints from any source regarding a material violation of accounting proceduresaccounting, internal accounting controls or auditing matters or compliance with Lawmatters, including and no concerns from Company Employees employees regarding questionable accountingaccounting or auditing matters, auditing or legal compliance matters have, to the Knowledge of the Company, have been received by the Company. The Company has made available to Parent a summary of all complaints or concerns relating to other matters made since the Applicable Date through the Company’s whistleblower hot line or equivalent system for receipt of employee concerns regarding possible violations of Law. No attorney representing the Company or any of its Subsidiaries, whether or not employed by the Company or any of its Subsidiaries, has reported evidence of a violation of securities Laws, breach of fiduciary duty or similar violation by the Company or any of its officers, directors, employees or agents to the Company’s chief legal officer, audit committee (or other committee designated for the purpose) of the board of directors or the board of directors pursuant to the rules adopted pursuant to Section 307 of the Xxxxxxxx-Xxxxx Act or any policy of the Company contemplating such reporting, including in instances not required by those rules.
(div) Each of the consolidated balance sheets included in or incorporated by reference into the Company Reports (including the related notes and schedules) fairly presents in all material respects, or, in the case of Company Reports filed after the date of this Agreement, will fairly present, in each case, present in all material respects, respects the consolidated financial position of the Company and its Subsidiaries, consolidated Subsidiaries as of the its date of such balance sheet, and each of the consolidated statements of operationsincome, shareholders’ equity and cash flows and changes in stockholders’ equity (deficit) included in or incorporated by reference into the Company Reports (including any related notes and schedules) fairly presentspresents in all material respects, or, or in the case of Company Reports filed after the date of this Agreement, will fairly present, in each case, present in all material respects, respects the results of operations, retained earnings (loss) and changes in financial position, as the case may be, of the Company and its Subsidiaries for the periods set forth therein (subject, in the case of unaudited statements, to notes and normal year-end audit adjustments that are not or will not be material in amount or effect), in each case in accordance with GAAP consistently applied during the periods involved, except as may be noted therein or in the notes theretotherein.
(e) Neither the Company nor any of its Subsidiaries has incurred any Indebtedness, or issued or sold any debt securities or rights to acquire any debt security of the Company or any of its Subsidiaries, the terms of which, or the terms of any instrument under which such Indebtedness, debt securities or rights were issued, requires the public listing of such Indebtedness, debt securities or rights or the maintenance by the Company or any of its Subsidiaries of registration under the Exchange Act.
Appears in 1 contract
Samples: Merger Agreement (Choicepoint Inc)
Company Reports; Financial Statements. (ai) The Company has filed or furnished, as applicable, on a timely basis, all forms, statements, certifications, reports and documents required to be filed or furnished by it with or to the SEC pursuant to Securities and Exchange Commission (the “SEC”) under the Exchange Act or the Securities Act of 1933, as amended (the “Securities Act”) since June 30December 31, 2014 2003 (the “Applicable Date”) (the forms, statements, reports and documents filed with or furnished to the SEC since the Applicable Date and those filed with or furnished to the SEC subsequent to the date of this Agreementhereof, in each case as amendedincluding any amendments thereto, the “Company Reports”). Each of the Company Reports, at the time of its filing or being furnished furnished, complied or, if not yet filed or furnished, will comply in all material respects with the applicable requirements of the Securities Act, the Exchange Act and the XxxxxxxxSxxxxxxx-Xxxxx Act of 2002 (the “XxxxxxxxSxxxxxxx-Xxxxx Act”), and any rules and regulations promulgated thereunder applicable to the Company Reports. As of their respective dates (or, if amended prior to the date of this Agreementhereof, as of the date of such amendment), the Company Reports did not, and any Company Reports filed with or furnished to with the SEC subsequent to the date of this Agreement hereof will notnot (other than with respect to any information provided by Parent or Merger Sub), contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements made therein, in light of the circumstances in which they were made, not misleading.
(bii) The Company is in compliance in all material respects with the applicable listing and corporate governance rules and regulations of Nasdaqthe NYSE. For purposes of this Agreement, the term “Affiliate” when used with respect to any party shall mean any Person who is an “affiliate” of that party within the meaning of Rule 405 promulgated under the Securities Act.
(ciii) The Company maintains disclosure controls and procedures required by Rule 13a-15 or 15d-15 under the Exchange Act. Such disclosure controls and procedures are designed effective to ensure that information required to be disclosed by the Company in its filings with the SEC under the Exchange Act is recorded and reported on a timely basis to the individuals responsible for the preparation of the Company’s filings with the SEC under the Exchange Actand other public disclosure documents. The Company maintains internal control over financial reporting (as defined in Rule 13a-15 or 15d-15, as applicable, under the Exchange Act). Such internal control over financial reporting is designed to provide effective in providing reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with GAAP and includes policies and procedures that (A) pertain to the maintenance of records that in reasonable detail accurately and fairly reflect the transactions and dispositions of the assets of the Company, (B) provide reasonable assurance that transactions are recorded as necessary to permit preparation of financial statements in accordance with GAAP, and that receipts and expenditures of the Company are being made only in accordance with authorizations of management and directors of the Company, and (C) provide reasonable assurance regarding prevention or timely detection of unauthorized acquisition, use or disposition of the Company’s assets that could have a material effect on its financial statements. The Company has disclosed, based on the most recent evaluation of its Chief Executive Officer chief executive officer and its Chief Financial Officer chief financial officer prior to the date of this Agreementhereof, to the Company’s auditors and the audit committee of the Company’s Board board of Directors directors (x) any significant deficiencies and material weaknesses in the design or operation of its internal controls over financial reporting that are reasonably likely expected to adversely affect the Company’s ability to record, process, summarize and report financial information and has identified for the Company’s auditors and audit committee of the Company’s board of directors any material weaknesses in internal control over financial reporting and (y) any fraud, whether or not material, that involves management or other employees who have a significant role in the Company’s internal control over financial reporting. The Company has made available prior to the date of this Agreement to Parent (I) either materials relating to or a summary of any such disclosure of matters described in clauses (x) or (y) in the preceding sentence made by management of to the Company to its Company’s auditors and audit committee on or after since the Applicable Date and prior to the date of this Agreement and (II) any material communication on or after since the Applicable Date and prior to the date of this Agreement made by management of or the Company or its Company’s auditors to the audit committee as required or contemplated by the listing standards of Nasdaqthe NYSE, the audit committee’s charter or professional standards of the Public Company Accounting Oversight BoardBoard regarding significant deficiencies in the Company’s internal controls over financial reporting. Since To the Knowledge of the Company (as defined below), since the Applicable Date and prior to the date of this AgreementDate, no material complaints from any source regarding a material violation of accounting proceduresaccounting, internal accounting controls or auditing matters or compliance with Lawmatters, including and no concerns from Company Employees the Company’s employees regarding questionable accountingaccounting or auditing matters, auditing or legal compliance matters have, to the Knowledge of the Company, have been received by the Company.
(d) Each . The Company has made available to Parent a summary of the consolidated balance sheets included in or incorporated by reference into the Company Reports (including the related notes and schedules) fairly presents or, in the case of Company Reports filed after the date of this Agreement, will fairly present, in each case, in all material respects, complaints or concerns relating to other matters made since the consolidated financial position Applicable Date through the Company’s whistleblower hot line or equivalent system for receipt of the Company and its Subsidiaries, as employee concerns regarding possible violations of the date of such balance sheet, and each of the consolidated statements of operations, cash flows and changes in stockholders’ equity (deficit) included in or incorporated by reference into the Company Reports (including any related notes and schedules) fairly presents, or, in the case of Company Reports filed after the date of this Agreement, will fairly present, in each case, in all material respects, the results of operations, retained earnings (loss) and changes in financial position, as the case may be, of the Company and its Subsidiaries for the periods set forth therein (subject, in the case of unaudited statements, to notes and normal year-end audit adjustments that are not or will not be material in amount or effect), in each case in accordance with GAAP consistently applied during the periods involved, except as may be noted therein or in the notes thereto.
(e) Neither the Company nor any of its Subsidiaries has incurred any Indebtedness, or issued or sold any debt securities or rights to acquire any debt security of Law. No attorney representing the Company or any of its Subsidiaries, the terms of which, whether or the terms of any instrument under which such Indebtedness, debt securities or rights were issued, requires the public listing of such Indebtedness, debt securities or rights or the maintenance not employed by the Company or any of its Subsidiaries Subsidiaries, has reported evidence of registration under a violation of securities laws, breach of fiduciary duty or similar violation by the Exchange Act.Company or
Appears in 1 contract
