Financial Statements; Information Provided. (a) Merger Partner has made available to Public Company the Merger Partner Financial Statements. The Merger Partner Financial Statements (i) comply as to form with all applicable accounting requirements and (ii) were prepared in accordance with GAAP applied on a consistent basis throughout the periods covered thereby; provided, however, that the Merger Partner Financial Statements referred to in clause (b) of the definition of such term are subject to normal recurring year-end adjustments (which, individually and in the aggregate, will not be material) and do not include footnotes. (b) Each of the Merger Partner Financial Statements fairly presents the consolidated assets, liabilities, business, financial condition, results of operations and cash flows of Merger Partner and its Subsidiaries as of the date thereof and for the period referred to therein, and is consistent with the books and records of Merger Partner and its Subsidiaries. (c) Merger Partner maintains accurate books and records reflecting its assets and liabilities and maintains proper and a system of internal accounting control over financial reporting designed to provide reasonable assurance that (i) transactions are executed with management’s authorization, (ii) transactions are recorded as necessary to permit preparation of the financial statements of Xxxxxx Partner and to maintain accountability for Merger Partner’s assets, (iii) access to assets of Merger Partner is permitted only in accordance with management’s authorization, (iv) the reporting of assets of Merger Partner is compared with existing assets at regular intervals, and (v) accounts, notes and other receivables and inventory were recorded accurately, and proper and adequate procedures are implemented to effect the collection thereof on a current and timely basis. Xxxxxx Partner has disclosed to Xxxxxx Partner’s auditors and audit committee (and made available to Public Company a summary of the significant aspects of such disclosure) (A) all significant deficiencies and material weaknesses, if any, in the design or operation of internal control over financial reporting that are reasonably likely to adversely affect Xxxxxx Partner’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 Merger Partner’s or its Subsidiaries’ internal control over financial reporting. Xxxxxx Partner has not identified any material weaknesses in the design or operation of Merger Partner’s internal control over financial reporting. (d) Neither Merger Partner nor any of its Subsidiaries has any Liability, except for: (i) Liabilities disclosed, reflected or reserved against in Public Company’s most recent interim consolidated unaudited balance sheet for the period ended September 30, 2022; (ii) Liabilities that have been incurred by Merger Partner or its Subsidiaries since September 30, 2022 in the Ordinary Course of Business; (iii) Liabilities for performance of obligations of Merger Partner or any of its Subsidiaries under Merger Partner Contracts (other than those arising as a result of a breach or default thereunder or as a result of failure to comply with applicable Law); (iv) Liabilities for payment of fees and expenses incurred in connection with the Transactions; (v) Liabilities which would not, individually or in the aggregate, reasonably be expected to be material to Merger Partner and its Subsidiaries, taken as a whole; and (vi) Liabilities described in Section 3.5(d) of the Merger Partner Disclosure Schedule. (e) The information (including information relating to the Blockers) to be supplied by or on behalf of Merger Partner for inclusion or incorporation by reference in the registration statement on Form S-4 to be filed by Public Company pursuant to which shares of Public Company Class A Common Stock and Public Company Class B Common Stock issued in connection with the Mergers shall be registered under the Securities Act (the “Registration Statement”), or supplied by or on behalf of Merger Partner for inclusion in any filing pursuant to Rule 165 and Rule 425 under the Securities Act or Rule 14a-12 under the Exchange Act (each a “Regulation M-A Filing”), shall not at the time the Registration Statement or any such Regulation M-A Filing is filed with the SEC, at any time it is amended or supplemented or at the time the Registration Statement is declared effective by the SEC, as applicable, contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein not misleading, in light of the circumstances under which they were made. The information (including information relating to the Blockers) to be supplied by or on behalf of Merger Partner for inclusion or incorporation by reference in the proxy statement/prospectus (the “Proxy Statement/Prospectus”) to be sent to the stockholders of Public Company in connection with the meeting of Public Company’s Stockholders’ Meeting shall not, on the date the Proxy Statement/Prospectus is first mailed to stockholders of Public Company, or at the time of the Public Company Meeting or as of the Effective Time, contain any statement that, at such time and in light of the circumstances under which it shall be made, is false or misleading with respect to any material fact, or omit to state any material fact necessary in order to make the statements made in the Proxy Statement/Prospectus not false or misleading; or omit to state any material fact necessary to correct any statement in any earlier communication with respect to the solicitation of proxies for the Public Company Meeting that has become, in light of the circumstances in which they were made, false or misleading. (f) Between January 1, 2020 and the date of this Agreement, there have been no formal investigations regarding financial reporting or accounting policies and practices discussed with, reviewed by or initiated at the direction of the chief executive officer, chief financial officer, principal accounting officer or general counsel of Merger Partner, the Merger Partner Board or any committee thereof, other than ordinary course audits or reviews of accounting policies and practices or internal controls.
Appears in 1 contract
Samples: Merger Agreement (Calyxt, Inc.)
Financial Statements; Information Provided. (a) Merger Partner has made available Attached to Public Section 5.5 of the Company the Merger Partner Financial Statements. The Merger Partner Financial Statements Disclosure Schedule are true copies of (i) comply the financial statements of the Company as to form with all applicable accounting requirements of and for the periods ended December 31, 2000, 2001 and 2002, including the notes thereto, audited by Ernst & Young LLP (collectively, the "Company Financial Statements") and (ii) were prepared the unaudited financial statements of the Company for the nine-month period ended September 30, 2003 (such unaudited financial statements being referred to herein, collectively, as the "Interim Financial Statements"). The balance sheet of the Company, dated as of December 31, 2002, included in the Financial Statements is referred to herein as the "Current Balance Sheet." The Company shall provide such additional unaudited quarterly financial statements for the Company as and when they become available after the date of this Agreement and before the Closing Date. The Company Financial Statements and the Interim Financial Statements fairly present in all material respects the financial position of the Company as of the respective dates of the balance sheets included therein and the results of the Company's operations, cash flows and stockholders' equity for the respective periods indicated and such presentation is all in accordance with GAAP generally accepted accounting principles consistently applied on a consistent basis throughout such periods, subject in the periods covered thereby; provided, however, that the Merger Partner Financial Statements referred to in clause (b) case of the definition of such term are subject Interim Financial Statements, to normal recurring year-end adjustments (which, individually and in the aggregate, will not be material) lack of footnotes and do not include footnotesother presentation items.
(b) Each of the Merger Partner Financial Statements fairly presents the consolidated assets, liabilities, business, financial condition, results of operations and cash flows of Merger Partner Company and its Subsidiaries as of the date thereof and for the period referred to therein, and is consistent with the books and records of Merger Partner and its Subsidiaries.
(c) Merger Partner subsidiaries maintains accurate books and records reflecting its assets and liabilities and maintains proper and a system of internal accounting control over financial reporting designed to adequate controls which provide reasonable assurance that (i) transactions are executed with management’s 's authorization, ; (ii) transactions are recorded as necessary to permit preparation of the consolidated financial statements of Xxxxxx Partner the Company and to maintain accountability for Merger Partner’s the Company's consolidated assets, ; (iii) access to the Company's assets of Merger Partner is permitted only in accordance with management’s 's authorization, (iv) the reporting of the Company's assets of Merger Partner is compared with existing assets at regular intervals, ; and (v) accounts, notes and other receivables and inventory were are recorded accurately, and proper and adequate procedures are implemented to effect the collection thereof on a current and timely basis. Xxxxxx Partner has disclosed to Xxxxxx Partner’s auditors and audit committee (and made available to Public Company a summary of the significant aspects of such disclosure) (A) all significant deficiencies and material weaknesses, if any, in the design or operation of internal control over financial reporting that are reasonably likely to adversely affect Xxxxxx Partner’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 Merger Partner’s or its Subsidiaries’ internal control over financial reporting. Xxxxxx Partner has not identified any material weaknesses in the design or operation of Merger Partner’s internal control over financial reporting.
(d) Neither Merger Partner nor any of its Subsidiaries has any Liability, except for: (i) Liabilities disclosed, reflected or reserved against in Public Company’s most recent interim consolidated unaudited balance sheet for the period ended September 30, 2022; (ii) Liabilities that have been incurred by Merger Partner or its Subsidiaries since September 30, 2022 in the Ordinary Course of Business; (iii) Liabilities for performance of obligations of Merger Partner or any of its Subsidiaries under Merger Partner Contracts (other than those arising as a result of a breach or default thereunder or as a result of failure to comply with applicable Law); (iv) Liabilities for payment of fees and expenses incurred in connection with the Transactions; (v) Liabilities which would not, individually or in the aggregate, reasonably be expected to be material to Merger Partner and its Subsidiaries, taken as a whole; and (vi) Liabilities described in Section 3.5(d) of the Merger Partner Disclosure Schedule.
(ec) The information (including information relating to the Blockers) to be supplied by or on behalf of Merger Partner for inclusion or incorporation by reference in the registration statement on Form S-4 to be filed by Public Company pursuant to which shares of Public Company Class A Common Stock and Public Company Class B Common Stock issued in connection with the Mergers shall be registered under the Securities Act (the “Registration Statement”), or supplied by or on behalf of Merger Partner for inclusion in the Registration Statement or in any filing pursuant to Rule 165 and Rule 425 under the Securities Act or Rule 14a-12 under the Exchange Act (each a “Regulation M-A Filing”), Filing shall not at the time the Registration Statement or any such Regulation M-A Filing is filed with the SEC, at any time it the Registration Statement is amended or supplemented or at the time the Registration Statement is declared effective by the SEC, as applicable, SEC contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein not misleading, in light of the circumstances under which they were made. The information (including information relating to the Blockers) to be supplied by or on behalf of Merger Partner the Company for inclusion or incorporation by reference in the proxy statement/prospectus (the “Joint Proxy Statement/Prospectus”) Prospectus to be sent to the stockholders of Public the Company in connection with the meeting of Public the Company’s Stockholders’ Meeting 's stockholders to consider the proposed Company Stockholder Approval (the "Company Meeting") and to stockholders of Acquiror in connection with the Acquiror Meeting, which shall be deemed to include all information about or relating to the Company, the proposed Company Stockholder Approval and the Company Meeting, shall not, on the date the Joint Proxy Statement/Prospectus is first mailed to stockholders of Public Companythe Company and Acquiror, or at the time of the Public Company Meeting or as of the Acquiror Meeting or the Effective Time, contain any statement thatwhich, at such time and in light of the circumstances under which it shall be made, is false or misleading with respect to any material fact, or omit to state any material fact necessary in order to make the statements made in the Joint Proxy Statement/Prospectus not false or misleading; , or omit to state any material fact necessary to correct any statement in any earlier communication with respect to the solicitation of proxies for the Public Company Meeting that has become, in light of or the circumstances in Acquiror Meeting which they were made, shall have become false or misleading.
(f) Between January 1. If at any time prior to the Effective Time, 2020 and any fact or event relating to the date Company or any of this Agreement, there have been no formal investigations regarding financial reporting its Affiliates should be discovered by the Company or accounting policies and practices discussed with, reviewed by should occur which should be set forth in an amendment to the Registration Statement or initiated at a supplement to the direction of the chief executive officer, chief financial officer, principal accounting officer or general counsel of Merger PartnerJoint Proxy Statement/Prospectus, the Merger Partner Board Company shall promptly inform Acquiror of such fact or any committee thereof, other than ordinary course audits or reviews of accounting policies and practices or internal controlsevent.
Appears in 1 contract
Samples: Merger Agreement (Friede John A)
Financial Statements; Information Provided. (ai) Merger Partner has made available Attached to Public Section 5.5(a)(i) of the Company Disclosure Schedule are true copies of (A) the Merger Partner financial statements of the Company as required to be included in the Registration Statement by Regulation S-X as of and for the periods ended December 31, 2001, 2002 and 2003, including the notes thereto, audited by PricewaterhouseCoopers LLP (collectively, the "COMPANY FINANCIAL STATEMENTS") and (B) the unaudited financial statements of the Company as required to be included in the Registration Statement by Regulation S-X for the six-month period ended June 30, 2004 (such unaudited financial statements being referred to herein, collectively, as the "INTERIM COMPANY FINANCIAL STATEMENTS"). Each of the Company Financial Statements. The Merger Partner Statements and the Interim Company Financial Statements (ix) comply as to form with all applicable accounting requirements and (ii) were has been prepared in accordance with GAAP GAAP, applied on a consistent basis throughout the periods covered thereby; providedinvolved (except as may be indicated in the notes to such financial statements) and (y) fairly present in all material respects the consolidated financial position of the Company and the Acquired Subsidiaries as at the respective dates of the balance sheets included therein and the consolidated results of operations and changes in financial position for the respective periods indicated, however, except that the Merger Partner Financial Statements referred to in clause (b) of the definition of such term unaudited interim financial statements are subject to lack of footnotes and normal and recurring year-end adjustments and any other adjustments described therein not material in amount.
(which, individually ii) Attached to Section 5.5(a)(ii) of the Company Disclosure Schedule are true copies of (A) the financial statements of the Distribution and Fulfillment Services Group of the Company ("DFSG") as required to be included in the aggregateRegistration Statement by Regulation S-X as of and for the periods ended December 31, will not be material2001, 2002 and 2003, including the notes thereto, audited by PricewaterhouseCoopers LLP (collectively, the "DFSG FINANCIAL STATEMENTS") and do (B) the unaudited financial statements of DFSG as required to be included in the Registration Statement by Regulation S-X for the six-month period ended June 30, 2004 (such unaudited financial statements being referred to herein, collectively, as the "INTERIM DFSG FINANCIAL STATEMENTS"). The balance sheet of DFSG as required to be included in the Registration Statement by Regulation S-X, dated as of December 31, 2003, included in the DFSG Financial Statements is referred to herein as the "CURRENT BALANCE SHEET". Each of the DFSG Financial Statements and the Interim DFSG Financial Statements (x) has been prepared in accordance with GAAP, applied on a consistent basis throughout the periods involved (except as may be indicated in the notes to such financial statements) and (y) fairly present in all material respects the consolidated financial position of DFSG as at the respective dates of the balance sheets included therein and the consolidated results of operations and changes in financial position for the respective periods indicated, except that the unaudited interim financial statements are subject to lack of footnotes and normal and recurring year-end adjustments and any other adjustments described therein not include footnotesmaterial in amount.
(b) Each of the Merger Partner Financial Statements fairly presents Company and the consolidated assets, liabilities, business, financial condition, results of operations and cash flows of Merger Partner and its Acquired Subsidiaries as of the date thereof and for the period referred to therein, and is consistent with the books and records of Merger Partner and its Subsidiaries.
(c) Merger Partner maintains accurate books and records reflecting its assets and liabilities and maintains proper and a system of adequate internal accounting control over financial reporting designed to controls which provide reasonable assurance that (i) transactions are executed with management’s 's authorization, ; (ii) transactions are recorded as necessary to permit preparation of the consolidated financial statements of Xxxxxx Partner the Company in accordance with GAAP and to maintain accountability for Merger Partner’s the Company's consolidated assets, ; (iii) access to the Company's assets of Merger Partner is permitted only in accordance with management’s 's authorization, (iv) the reporting of the Company's assets of Merger Partner is compared with existing assets at regular intervals, and ; (v) accounts, notes and other receivables and inventory were are recorded accurately, and proper and adequate procedures are implemented to effect the collection thereof on a current and timely basis. Xxxxxx Partner has disclosed to Xxxxxx Partner’s auditors basis and audit committee (and made available to Public Company a summary vi) there are adequate procedures regarding prevention or timely detection of unauthorized acquisition, use or disposition of the significant aspects Company's assets. As of such disclosurethe date of this Agreement, (i) (A) all there are no significant deficiencies and material weaknesses, if any, in the design or operation of the Company's internal control controls over financial reporting that are reasonably likely to which could adversely affect Xxxxxx Partner’s in any material respect the Company's ability to record, process, summarize and report financial information data or material weaknesses in internal controls over financial reporting and (Bii) any Fraudthere has been no fraud, whether or not material, that involves involved management or other employees of the Company or any of the Acquired Subsidiaries who have a significant role in Merger Partner’s or its Subsidiaries’ the Company's internal control over financial reporting. Xxxxxx Partner has not identified any material weaknesses in the design or operation of Merger Partner’s internal control controls over financial reporting.
(d) Neither Merger Partner nor any of its Subsidiaries has any Liability, except for: (i) Liabilities disclosed, reflected or reserved against in Public Company’s most recent interim consolidated unaudited balance sheet for the period ended September 30, 2022; (ii) Liabilities that have been incurred by Merger Partner or its Subsidiaries since September 30, 2022 in the Ordinary Course of Business; (iii) Liabilities for performance of obligations of Merger Partner or any of its Subsidiaries under Merger Partner Contracts (other than those arising as a result of a breach or default thereunder or as a result of failure to comply with applicable Law); (iv) Liabilities for payment of fees and expenses incurred in connection with the Transactions; (v) Liabilities which would not, individually or in the aggregate, reasonably be expected to be material to Merger Partner and its Subsidiaries, taken as a whole; and (vi) Liabilities described in Section 3.5(d) of the Merger Partner Disclosure Schedule.
(ec) The information (including information relating to the Blockers) to be supplied by or on behalf of Merger Partner for inclusion or incorporation by reference in the registration statement on Form S-4 to be filed by Public Company pursuant to which shares of Public Company Class A Common Stock and Public Company Class B Common Stock issued in connection with the Mergers shall be registered under the Securities Act (the “Registration Statement”), or supplied by or on behalf of Merger Partner for inclusion in any filing pursuant to Rule 165 and Rule 425 under the Securities Act or Rule 14a-12 under the Exchange Act (each a “Regulation M-A Filing”), shall not at the time the Registration Statement or any such Regulation M-A Filing is filed with the SEC, at any time it is amended or supplemented or shall not at the time the Registration Statement is declared effective by the SEC, as applicable, SEC contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein not misleading, in light of the circumstances under which they were made. The information (including information relating to the Blockers) to be supplied by or on behalf of Merger Partner the Company for inclusion or incorporation by reference in the proxy statement/prospectus (the “Proxy Statement/Prospectus”) Prospectus to be sent to the stockholders of Public the Company in connection with the meeting Company Meeting (or the solicitation of Public Company’s Stockholders’ Meeting the stockholders of the Company seeking written consent of the Company Voting Proposal) and to stockholders of Source in connection with the Source Meeting, shall not, on the date the Proxy Statement/Prospectus is first mailed to stockholders of Public Companythe Company and Source, or at the time of the Public Company Meeting (or the solicitation of the stockholders of the Company seeking written consent of the Company Voting Proposal) or the Source Meeting or as of the Effective Time, contain any statement thatwhich, at such time and in light of the circumstances under which it shall be made, is false or misleading with respect to any material fact, or omit to state any material fact necessary in order to make the statements made in the Proxy Statement/Prospectus not false or misleading; , or omit to state any material fact necessary to correct any statement in any earlier communication with respect to the solicitation of proxies for the Public Company Meeting that has become, in light (or the solicitation of the circumstances in stockholders of the Company seeking written consent of the Company Voting Proposal) or the Source Meeting which they were made, has become false or misleading.
(f) Between January 1. If at any time prior to the Effective Time, 2020 and any fact or event relating to the date Company or any of this Agreementits Affiliates should be discovered by the Company or should occur which should be set forth in an amendment to the Registration Statement or a supplement to the Proxy Statement/Prospectus, there have been the Company shall promptly inform Source of such fact or event. Notwithstanding anything to the contrary, the Company makes no formal investigations regarding financial reporting representation or accounting policies and practices discussed with, reviewed warranty with respect to the information to be supplied by or initiated at on behalf of Source for inclusion in the direction of Registration Statement or the chief executive officer, chief financial officer, principal accounting officer or general counsel of Merger Partner, the Merger Partner Board or any committee thereof, other than ordinary course audits or reviews of accounting policies and practices or internal controlsProxy Statement/Prospectus.
Appears in 1 contract
Financial Statements; Information Provided. (a) Merger Partner has made available Attached to Public Section 5.5 of the Company the Merger Partner Financial Statements. The Merger Partner Financial Statements Disclosure Schedule are true copies of (i) comply the financial statements of the Company as to form with all applicable accounting requirements of and for the periods ended December 31, 2000, 2001 and 2002, including the notes thereto, audited by Ernst & Young LLP (collectively, the “Company Financial Statements”) and (ii) were prepared the unaudited financial statements of the Company for the nine-month period ended September 30, 2003 (such unaudited financial statements being referred to herein, collectively, as the “Interim Financial Statements”). The balance sheet of the Company, dated as of December 31, 2002, included in the Financial Statements is referred to herein as the “Current Balance Sheet.” The Company shall provide such additional unaudited quarterly financial statements for the Company as and when they become available after the date of this Agreement and before the Closing Date. The Company Financial Statements and the Interim Financial Statements fairly present in all material respects the financial position of the Company as of the respective dates of the balance sheets included therein and the results of the Company’s operations, cash flows and stockholders’ equity for the respective periods indicated and such presentation is all in accordance with GAAP generally accepted accounting principles consistently applied on a consistent basis throughout such periods, subject in the periods covered thereby; provided, however, that the Merger Partner Financial Statements referred to in clause (b) case of the definition of such term are subject Interim Financial Statements, to normal recurring year-end adjustments (which, individually and in the aggregate, will not be material) lack of footnotes and do not include footnotesother presentation items.
(b) Each of the Merger Partner Financial Statements fairly presents the consolidated assets, liabilities, business, financial condition, results of operations and cash flows of Merger Partner Company and its Subsidiaries as of the date thereof and for the period referred to therein, and is consistent with the books and records of Merger Partner and its Subsidiaries.
(c) Merger Partner subsidiaries maintains accurate books and records reflecting its assets and liabilities and maintains proper and a system of internal accounting control over financial reporting designed to adequate controls which provide reasonable assurance that (i) transactions are executed with management’s authorization, ; (ii) transactions are recorded as necessary to permit preparation of the consolidated financial statements of Xxxxxx Partner the Company and to maintain accountability for Merger Partnerthe Company’s consolidated assets, ; (iii) access to the Company’s assets of Merger Partner is permitted only in accordance with management’s authorization, (iv) the reporting of the Company’s assets of Merger Partner is compared with existing assets at regular intervals, ; and (v) accounts, notes and other receivables and inventory were are recorded accurately, and proper and adequate procedures are implemented to effect the collection thereof on a current and timely basis. Xxxxxx Partner has disclosed to Xxxxxx Partner’s auditors and audit committee (and made available to Public Company a summary of the significant aspects of such disclosure) (A) all significant deficiencies and material weaknesses, if any, in the design or operation of internal control over financial reporting that are reasonably likely to adversely affect Xxxxxx Partner’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 Merger Partner’s or its Subsidiaries’ internal control over financial reporting. Xxxxxx Partner has not identified any material weaknesses in the design or operation of Merger Partner’s internal control over financial reporting.
(d) Neither Merger Partner nor any of its Subsidiaries has any Liability, except for: (i) Liabilities disclosed, reflected or reserved against in Public Company’s most recent interim consolidated unaudited balance sheet for the period ended September 30, 2022; (ii) Liabilities that have been incurred by Merger Partner or its Subsidiaries since September 30, 2022 in the Ordinary Course of Business; (iii) Liabilities for performance of obligations of Merger Partner or any of its Subsidiaries under Merger Partner Contracts (other than those arising as a result of a breach or default thereunder or as a result of failure to comply with applicable Law); (iv) Liabilities for payment of fees and expenses incurred in connection with the Transactions; (v) Liabilities which would not, individually or in the aggregate, reasonably be expected to be material to Merger Partner and its Subsidiaries, taken as a whole; and (vi) Liabilities described in Section 3.5(d) of the Merger Partner Disclosure Schedule.
(ec) The information (including information relating to the Blockers) to be supplied by or on behalf of Merger Partner for inclusion or incorporation by reference in the registration statement on Form S-4 to be filed by Public Company pursuant to which shares of Public Company Class A Common Stock and Public Company Class B Common Stock issued in connection with the Mergers shall be registered under the Securities Act (the “Registration Statement”), or supplied by or on behalf of Merger Partner for inclusion in the Registration Statement or in any filing pursuant to Rule 165 and Rule 425 under the Securities Act or Rule 14a-12 under the Exchange Act (each a “Regulation M-A Filing”), Filing shall not at the time the Registration Statement or any such Regulation M-A Filing is filed with the SEC, at any time it the Registration Statement is amended or supplemented or at the time the Registration Statement is declared effective by the SEC, as applicable, SEC contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein not misleading, in light of the circumstances under which they were made. The information (including information relating to the Blockers) to be supplied by or on behalf of Merger Partner the Company for inclusion or incorporation by reference in the proxy statement/prospectus (the “Joint Proxy Statement/Prospectus”) Prospectus to be sent to the stockholders of Public the Company in connection with the meeting of Public the Company’s Stockholders’ Meeting stockholders to consider the proposed Company Stockholder Approval (the “Company Meeting”) and to stockholders of Acquiror in connection with the Acquiror Meeting, which shall be deemed to include all information about or relating to the Company, the proposed Company Stockholder Approval and the Company Meeting, shall not, on the date the Joint Proxy Statement/Prospectus is first mailed to stockholders of Public Companythe Company and Acquiror, or at the time of the Public Company Meeting or as of the Acquiror Meeting or the Effective Time, contain any statement thatwhich, at such time and in light of the circumstances under which it shall be made, is false or misleading with respect to any material fact, or omit to state any material fact necessary in order to make the statements made in the Joint Proxy Statement/Prospectus not false or misleading; , or omit to state any material fact necessary to correct any statement in any earlier communication with respect to the solicitation of proxies for the Public Company Meeting that has become, in light of or the circumstances in Acquiror Meeting which they were made, shall have become false or misleading.
(f) Between January 1. If at any time prior to the Effective Time, 2020 and any fact or event relating to the date Company or any of this Agreement, there have been no formal investigations regarding financial reporting its Affiliates should be discovered by the Company or accounting policies and practices discussed with, reviewed by should occur which should be set forth in an amendment to the Registration Statement or initiated at a supplement to the direction of the chief executive officer, chief financial officer, principal accounting officer or general counsel of Merger PartnerJoint Proxy Statement/Prospectus, the Merger Partner Board Company shall promptly inform Acquiror of such fact or any committee thereof, other than ordinary course audits or reviews of accounting policies and practices or internal controlsevent.
Appears in 1 contract
Financial Statements; Information Provided. (a) Merger Partner has made available Attached to Public Section 4.5 of the Company the Merger Partner Financial Statements. The Merger Partner Financial Statements Disclosure Schedule are true copies of (i) comply the consolidated financial statements of the Company and its subsidiaries as to form with all applicable accounting requirements of and for the periods ended December 31, 2000, 2001 and 2002, including the notes thereto, audited by KPMG LLP (collectively, the “Company Financial Statements”) and (ii) were prepared the unaudited consolidated financial statements of the Company and its subsidiaries as and for the period ended December 31, 2003 (such unaudited consolidated financial statements being referred to herein, collectively, as the “Interim Financial Statements”). The balance sheet of the Company and its subsidiaries, dated as of December 31, 2003, included in the Interim Financial Statements is referred to herein as the “Current Balance Sheet.” The Company shall provide such additional unaudited financial statements for the Company and its subsidiaries as and when they become available after the date of this Agreement and before the Closing Date, including, but not limited to, monthly financial statements (collectively, the “Additional Consolidated Financial Statements”). The Company Financial Statements and the Interim Financial Statements fairly present the financial position of the Company and its subsidiaries as of the respective dates of the balance sheets included therein and the results of operations, cash flows and shareholders’ equity of the Company and its subsidiaries for the respective periods indicated and such presentation is in accordance with GAAP U.S. generally accepted accounting principles consistently applied on a consistent basis throughout the periods covered thereby; provided, however, that the Merger Partner such periods. The Additional Consolidated Financial Statements referred to in clause (b) shall fairly present the financial position of the definition Company and its subsidiaries as of the respective dates of the consolidated balance sheets included therein and the consolidated results of operations, cash flows and shareholders’ equity of the Company and its subsidiaries for the respective periods indicated and such term are subject to normal recurring year-end adjustments (which, individually and presentations shall be in the aggregate, will not be material) and do not include footnotesaccordance with U.S. generally accepted accounting principles consistently applied throughout such periods.
(b) Each of the Merger Partner Financial Statements fairly presents the consolidated assets, liabilities, business, financial condition, results of operations and cash flows of Merger Partner and its Subsidiaries as of the date thereof and for the period referred to therein, and is consistent with the books and records of Merger Partner and its Subsidiaries.
(c) Merger Partner maintains accurate books and records reflecting its assets and liabilities and The Company maintains proper and a system of internal accounting control over financial reporting designed to adequate controls which provide reasonable assurance that (i) transactions are executed with management’s authorization, (ii) transactions are recorded as necessary to permit preparation of the consolidated financial statements of Xxxxxx Partner the Company and to maintain accountability for Merger Partnerthe Company’s consolidated assets, (iii) access to the assets of Merger Partner the Company and its subsidiaries is permitted only in accordance with management’s authorization, (iv) the reporting of the assets of Merger Partner the Company and its subsidiaries is compared with existing assets at regular intervals, intervals and (v) accounts, notes and other receivables and inventory were are recorded accurately, accurately and proper and adequate procedures are implemented to effect the collection thereof on a current and timely basis. Xxxxxx Partner has disclosed to Xxxxxx Partner’s auditors and audit committee (and made available to Public Company a summary of the significant aspects of such disclosure) (A) all significant deficiencies and material weaknesses, if any, in the design or operation of internal control over financial reporting that are reasonably likely to adversely affect Xxxxxx Partner’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 Merger Partner’s or its Subsidiaries’ internal control over financial reporting. Xxxxxx Partner has not identified any material weaknesses in the design or operation of Merger Partner’s internal control over financial reporting.
(d) Neither Merger Partner nor any of its Subsidiaries has any Liability, except for: (i) Liabilities disclosed, reflected or reserved against in Public Company’s most recent interim consolidated unaudited balance sheet for the period ended September 30, 2022; (ii) Liabilities that have been incurred by Merger Partner or its Subsidiaries since September 30, 2022 in the Ordinary Course of Business; (iii) Liabilities for performance of obligations of Merger Partner or any of its Subsidiaries under Merger Partner Contracts (other than those arising as a result of a breach or default thereunder or as a result of failure to comply with applicable Law); (iv) Liabilities for payment of fees and expenses incurred in connection with the Transactions; (v) Liabilities which would not, individually or in the aggregate, reasonably be expected to be material to Merger Partner and its Subsidiaries, taken as a whole; and (vi) Liabilities described in Section 3.5(d) of the Merger Partner Disclosure Schedule.
(e) The information (including information relating to the Blockers) to be supplied by or on behalf of Merger Partner for inclusion or incorporation by reference in the registration statement on Form S-4 to be filed by Public Company pursuant to which shares of Public Company Class A Common Stock and Public Company Class B Common Stock issued in connection with the Mergers shall be registered under the Securities Act (the “Registration Statement”), or supplied by or on behalf of Merger Partner for inclusion in any filing pursuant to Rule 165 and Rule 425 under the Securities Act or Rule 14a-12 under the Exchange Act (each a “Regulation M-A Filing”), shall not at the time the Registration Statement or any such Regulation M-A Filing is filed with the SEC, at any time it is amended or supplemented or at the time the Registration Statement is declared effective by the SEC, as applicable, contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein not misleading, in light of the circumstances under which they were made. The information (including information relating to the Blockers) to be supplied by or on behalf of Merger Partner for inclusion or incorporation by reference in the proxy statement/prospectus (the “Proxy Statement/Prospectus”) to be sent to the stockholders of Public Company in connection with the meeting of Public Company’s Stockholders’ Meeting shall not, on the date the Proxy Statement/Prospectus is first mailed to stockholders of Public Company, or at the time of the Public Company Meeting or as of the Effective Time, contain any statement that, at such time and in light of the circumstances under which it shall be made, is false or misleading with respect to any material fact, or omit to state any material fact necessary in order to make the statements made in the Proxy Statement/Prospectus not false or misleading; or omit to state any material fact necessary to correct any statement in any earlier communication with respect to the solicitation of proxies for the Public Company Meeting that has become, in light of the circumstances in which they were made, false or misleading.
(f) Between January 1, 2020 and the date of this Agreement, there have been no formal investigations regarding financial reporting or accounting policies and practices discussed with, reviewed by or initiated at the direction of the chief executive officer, chief financial officer, principal accounting officer or general counsel of Merger Partner, the Merger Partner Board or any committee thereof, other than ordinary course audits or reviews of accounting policies and practices or internal controls.
Appears in 1 contract
Financial Statements; Information Provided. (a) Merger Partner Private Company has made available to Public Company correct and complete copies of the Merger Partner Financial Statements. The Merger Partner Each of the Financial Statements (i) complied or will comply as to form in all material respects with all applicable accounting requirements and requirements, (ii) were prepared in accordance with GAAP Agreed Upon Procedures applied on a consistent basis throughout the periods covered thereby; provided, however, that the Merger Partner Financial Statements referred to in clause involved (b) of the definition of such term are subject to normal recurring year-end adjustments (which, individually and except as may be indicated in the aggregatenotes to such financial statements), will not be materialand (iii) and do not include footnotes.
(b) Each of the Merger Partner Financial Statements fairly presents presented in all material respects the consolidated assets, liabilities, business, financial condition, results position of operations and cash flows of Merger Partner Private Company and its Subsidiaries as of the date thereof dates indicated and the consolidated results of its operations and cash flows for the period referred to thereinperiods indicated, and is consistent with except that the books and records of Merger Partner and its Subsidiaries.
(c) Merger Partner maintains accurate books and records reflecting its assets and liabilities and maintains proper and a system of internal accounting control over financial reporting designed to provide reasonable assurance that (i) transactions are executed with management’s authorization, (ii) transactions are recorded as necessary to permit preparation of the unaudited interim financial statements of Xxxxxx Partner are subject to normal and to maintain accountability for Merger Partner’s assets, (iii) access to assets of Merger Partner is permitted only in accordance with management’s authorization, (iv) the reporting of assets of Merger Partner is compared with existing assets at regular intervals, and (v) accounts, notes and other receivables and inventory were recorded accurately, and proper and adequate procedures are implemented to effect the collection thereof on a current and timely basisrecurring year-end adjustments. Xxxxxx Partner has disclosed to Xxxxxx Partner’s auditors and audit committee (and made available to Public Company a summary of the significant aspects of such disclosure) (A) all significant deficiencies and material weaknesses, if any, in the design or operation of internal control over financial reporting that are reasonably likely to adversely affect Xxxxxx Partner’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 Merger Partner’s or its Subsidiaries’ internal control over financial reporting. Xxxxxx Partner has not identified any material weaknesses in the design or operation of Merger Partner’s internal control over financial reporting.
(d) Neither Merger Partner nor any of its Subsidiaries has any Liability, except for: (i) Liabilities disclosed, reflected or reserved against in Public Company’s most recent interim consolidated unaudited balance sheet for the period ended September 30, 2022; (ii) Liabilities that have been incurred by Merger Partner or its Subsidiaries since September 30, 2022 in the Ordinary Course of Business; (iii) Liabilities for performance of obligations of Merger Partner or any of its Subsidiaries under Merger Partner Contracts (other than those arising as a result of a breach or default thereunder or as a result of failure to comply with applicable Law); (iv) Liabilities for payment of fees and expenses incurred in connection with the Transactions; (v) Liabilities which would not, individually or in the aggregate, reasonably be expected to be material to Merger Partner and its Subsidiaries, taken as a whole; and (vi) Liabilities described in Section 3.5(d) of the Merger Partner Disclosure Schedule.
(e) The information (including information relating to the Blockers) to be supplied by or on behalf of Merger Partner for inclusion or incorporation by reference in the registration statement on Form S-4 to be filed by Public Company pursuant to which shares of Public Company Class A Common Stock and Public Company Class B Common Stock issued in connection with the Mergers shall be registered under the Securities Act (the “Registration Statement”), or supplied by or on behalf of Merger Partner for inclusion in any filing pursuant to Rule 165 and Rule 425 under the Securities Act or Rule 14a-12 under the Exchange Act (each a “Regulation M-A Filing”), shall not at the time the Registration Statement or any such Regulation M-A Filing is filed with the SEC, at any time it is amended or supplemented or at the time the Registration Statement is declared effective by the SEC, as applicable, contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein not misleading, in light of the circumstances under which they were made. The information (including information relating to the Blockers) to be supplied by or on behalf of Merger Partner for inclusion or incorporation by reference in the proxy statement/prospectus (the “Proxy Statement/Prospectus”) to be sent to the stockholders of Public Company in connection with the meeting of Public Company’s Stockholders’ Meeting shall not, on the date the Proxy Statement/Prospectus is first mailed to stockholders of Public Company, or at the time of the Public Company Meeting or as of the Effective Time, contain any statement that, at such time and in light of the circumstances under which it shall be made, is false or misleading with respect to any material fact, or omit to state any material fact necessary in order to make the statements made in the Proxy Statement/Prospectus not false or misleading; or omit to state any material fact necessary to correct any statement in any earlier communication with respect to the solicitation of proxies for the Public Company Meeting that has become, in light of the circumstances in which they were made, false or misleading.
(f) Between January 1, 2020 and the date For purposes of this Agreement, there have been no formal investigations regarding financial reporting or accounting policies “Financial Statements” means the consolidated balance sheets and practices discussed withstatements of income based upon the Agreed Upon Procedures of (A) ESM Holdings Limited, reviewed a Mauritius company limited by or initiated at shares and wholly owned Subsidiary of Private Company (“ESM Holdings Limited”), as of and for the direction nine (9)-month period ending December 31, 2017, (B) ESM Holdings Limited, as of and for the fiscal year ending March 31, 2017; and (C) Aegis Limited, a company organized under the laws of the chief executive officerRepublic of India, chief as of and for the fiscal years ending March 31, 2016 and March 31, 2015, in each case of this clause (C), prepared from a holding company perspective with a holding company that is not an Affiliate of Private Company; provided that Private Company makes no representation regarding any information in the consolidated balance sheets and statements of income of any Person not currently an Affiliate of Private Company. The unaudited consolidated balance sheet of ESM Holdings Limited as of December 31, 2017 is referred to herein as the “Private Company Balance Sheet.” “Agreed Upon Procedures” means generally accepted accounting principles in India (either Indian accounting standards or Indian generally accepted accounting principles), as further adjusted for management assumptions as follows: (x) the consolidated balance sheets, consolidated statements of profit and loss, consolidated cash flow statement and selected notes thereto (the “Pro Forma Consolidated Financial Information”) were prepared after elimination of inter/intra group transactions, closing balances and eliminating investment and share capital of subsidiaries (as such term is used in the applicable financial officer, principal accounting officer or general counsel statement) by giving effect to goodwill; (y) the Pro Forma Consolidated Financial Information assumes that ESM Holdings Limited holds controlling interest in all of Merger Partner, its subsidiaries and associates (as each such term is used in the Merger Partner Board or any committee thereofapplicable financial statement), other than ordinary course audits or reviews of accounting policies and practices or internal controls.Contact Centre Company (“CCC”); (z) CCC is
Appears in 1 contract
