Financial Statements; Liabilities; Accounts Receivable; Inventories. (a) The Company has delivered to Buyer copies of (i) the unaudited balance sheet of the Company at October 31, 2007 (the “Most Recent Balance Sheet”) and the related statements of income, members’ equity, and cash flows with respect to the Company for the nine months then ended, and (ii) the audited balance sheet of the Company at January 31, 2007 and the related statements of income, members’ equity, and cash flows for the 12 months then ended (the “2006 Financial Statements”). The financial statements listed above present fairly in all material respects the financial condition, results of operations, changes in members’ equity, and cash flows of the Company for the periods then ended, and, except (i) for footnotes and normal year-end adjustments in the case of interim financial statements, and (ii) as set forth in Schedule 2.7(a) attached hereto, have been prepared in accordance with GAAP applied consistently throughout the periods indicated. The Company maintains internal accounting controls designed to provide reasonable assurances that (a) transactions by the Company are executed in accordance with management’s general or specific authorization and (b) transactions by the Company are recorded as necessary to permit preparation of financial statements in conformity with GAAP and to maintain accountability for assets. There have been no instances of fraud that have occurred since January 31, 2007 involving the management of the Company or any other employees of the Company who have a significant role in the Company’s internal control over financial reporting. (b) Except as set forth on Schedule 2.7(b) attached hereto and except for liabilities that have been or are incurred after the date of the Most Recent Balance Sheet in the Ordinary Course of Business or in connection with the transactions contemplated by this Agreement, the Company does not have any material liability of a kind required by GAAP to be reflected on a balance sheet of the Company that was not reflected or reserved against in the Most Recent Balance Sheet. (c) Except as otherwise set forth in Schedule 2.7(c) attached hereto, the accounts receivable reflected in the 2006 Financial Statements, in the Most Recent Balance Sheet, or in the books and records of the Company as of the Closing Date arose from bona fide transactions in the Ordinary Course of Business, and the goods and services involved have been sold, delivered, and performed to the account obligors, and no further filings with Governmental Authorities, insurers, or others are required to be made, no further goods are required to be provided, and no further services are required to be rendered in order to complete the sales and fully render the services and to entitle the Company to collect the accounts receivable in full. Except as set forth on Schedule 2.7(c), all such accounts receivable are current and the reserves for such accounts receivable have been calculated in accordance with GAAP. Reserves for accounts receivable in the Most Recent Balance Sheet and in the books and records of the Company as of the Closing Date do not include reserves for any accounts receivable that become uncollectible as a result of the Merger or actions taken by Buyer subsequent to the Closing. Except as set forth in Schedule 2.7(c), no such account has been assigned or pledged to any other Person and, except only to the extent fully reserved against as set forth in the Most Recent Balance Sheet, no defense or set-off to any such account has been asserted by the account obligor. (d) Except as otherwise set forth in Schedule 2.7(d) attached hereto, the Inventory as of the Closing Date shall consist of items of a quality, condition, and quantity reasonable and warranted in the present circumstances of the Company and shall be usable and saleable in the Ordinary Course of Business for the purposes for which intended. Except as otherwise set forth in Schedule 2.7(d), the Inventory is valued on the Company’s books of account in accordance with GAAP (on an average cost basis) at the lower of cost or market, and the value of obsolete materials, materials below standard quality, and slow-moving materials have been written down in accordance with GAAP. (e) Except as set forth on Schedule 2.7(e) attached hereto and except for Inventory disposed of in the Ordinary Course of Business since the date of the Most Recent Balance Sheet, the Company has (i) good and marketable title to all of the assets that it owns and that are reflected on the Most Recent Balance Sheet or that are acquired after the Most Recent Balance Sheet by the Company and not disposed of prior to the Closing, and (ii) valid leasehold interests or licenses (as applicable) in all leases of material tangible personal property and licenses in intangible property that it Uses and that it leases or licenses (as applicable), in each case free and clear of any Liens, other than Permitted Liens. (f) The Company owns or has the right to Use all of the assets necessary to continue the operations of the Company after the Closing as it has been conducted by the Company immediately prior to the date of this Agreement.
Appears in 2 contracts
Samples: Merger Agreement (Insight Enterprises Inc), Merger Agreement (Insight Enterprises Inc)
Financial Statements; Liabilities; Accounts Receivable; Inventories. (aA) The Company has delivered to Buyer copies of (i) the unaudited balance sheet of the Company at October 31, 2007 (the “Most Recent Balance Sheet”) Audited Financial Statements and the related statements of income, members’ equity, and cash flows with respect to Interim 2007 Statements that the Company for the nine months then ended, and (ii) the audited balance sheet of the Company at January 31, 2007 Sellers and the related statements of incomeShareholders provided in accordance with Section 6 shall be complete and correct, members’ equity, and cash flows for the 12 months then ended (the “2006 Financial Statements”). The financial statements listed above present fairly in all material respects the financial condition, results of operations, changes in members’ equity, and cash flows of the Company for the periods then ended, and, except (i) for footnotes and normal year-end adjustments in the case of interim financial statements, and (ii) as set forth in Schedule 2.7(a) attached hereto, shall have been prepared in accordance with GAAP applied consistently throughout the periods indicated. The Company maintains internal accounting controls designed to provide reasonable assurances that (a) transactions by the Company are executed in accordance with management’s general or specific authorization and (b) transactions by the Company are recorded as necessary to permit preparation of financial statements in conformity with GAAP and to maintain accountability for assets. There have been no instances of fraud that have occurred since January 31, 2007 involving the management of the Company or any other employees of the Company who have a significant role in the Company’s internal control over financial reporting.
(b) Except as set forth on Schedule 2.7(b) attached hereto and except for liabilities that have been or are incurred after the date of the Most Recent Balance Sheet in the Ordinary Course of Business or in connection with the transactions contemplated by this Agreement, the Company does not have any material liability of a kind required by GAAP to be reflected on a balance sheet of the Company that was not reflected or reserved against in the Most Recent Balance Sheet.
(c) Except as otherwise set forth in Schedule 2.7(c) attached hereto, the accounts receivable reflected in the 2006 Financial Statements, in the Most Recent Balance Sheet, or in from the books and records of the Company as in accordance with generally accepted accounting principles consistently applied and maintained throughout the periods indicated and shall fairly present the financial condition of the Closing Date Company as at their respective dates and the results of its operations for the periods covered thereby, subject to normal year-end adjustments and accruals.
(B) Except for (i) the liabilities reflected on the Company’s June 30, 2007 balance sheet included with the Interim 2007 Statements attached as Schedule 8(l)(B)(a), (ii) trade payables and accrued expenses incurred since June 30, 2007 in the ordinary course of business, none of which are material, and (iii) executory contract obligations under (x) Contracts listed on Schedule 8(s), and/or (y) Contracts not required to be listed on Schedule 8(s), the Sellers have no liabilities or obligations (whether accrued, absolute, contingent, known, unknown or otherwise, and whether or not of a nature required to be reflected or reserved against in a balance sheet in accordance with GAAP).
(C) The accounts receivable reflected on the June 30, 2007 balance sheets and all of the Trade Receivables arising since June 30, 2007 (the “Balance Sheet Date”) arose from bona fide transactions in the Ordinary Course ordinary course of Businessbusiness, and the goods and services involved have been sold, delivered, delivered and performed to the account obligors, and no further filings (with Governmental Authorities, insurers, insurers or others others) are required to be made, no further goods are required to be provided, provided and no further services are required to be rendered in order to complete the sales and fully render the services and to entitle the Company to collect the accounts receivable in full. Except as set forth on Schedule 2.7(c), all No such accounts receivable are current and the reserves for such accounts receivable have been calculated in accordance with GAAP. Reserves for accounts receivable in the Most Recent Balance Sheet and in the books and records of the Company as of the Closing Date do not include reserves for any accounts receivable that become uncollectible as a result of the Merger or actions taken by Buyer subsequent to the Closing. Except as set forth in Schedule 2.7(c), no such account has been assigned or pledged to any other Person person, firm or corporation, and, except only to the extent fully reserved against as set forth in the Most Recent Balance SheetJune 30, 2007 balance sheets, no defense or set-off to any such account has been asserted by the account obligorobligor or exists.
(dD) Except as otherwise set forth in Schedule 2.7(d) attached hereto, the The Merchandise Inventory as of the Closing Date shall consist of items of a quality, condition, condition and quantity reasonable and warranted in the present circumstances consistent with normal seasonally-adjusted Inventory levels of the Company and shall be usable and saleable in the Ordinary Course ordinary and usual course of Business business for the purposes for which intended. Except as otherwise set forth in Schedule 2.7(d), the The Merchandise Inventory is valued on the Company’s books of account in accordance with GAAP (on an average cost basis) at the lower of cost or market, and the value of obsolete materials, materials below standard quality, and slow-moving materials have been written down in accordance with GAAPCompany’s average cost.
(e) Except as set forth on Schedule 2.7(e) attached hereto and except for Inventory disposed of in the Ordinary Course of Business since the date of the Most Recent Balance Sheet, the Company has (i) good and marketable title to all of the assets that it owns and that are reflected on the Most Recent Balance Sheet or that are acquired after the Most Recent Balance Sheet by the Company and not disposed of prior to the Closing, and (ii) valid leasehold interests or licenses (as applicable) in all leases of material tangible personal property and licenses in intangible property that it Uses and that it leases or licenses (as applicable), in each case free and clear of any Liens, other than Permitted Liens.
(f) The Company owns or has the right to Use all of the assets necessary to continue the operations of the Company after the Closing as it has been conducted by the Company immediately prior to the date of this Agreement.
Appears in 2 contracts
Samples: Asset Purchase Agreement (Colony Bankcorp Inc), Asset Purchase Agreement (Colonial Commercial Corp)
Financial Statements; Liabilities; Accounts Receivable; Inventories. (a) The Company has On or before the Effective Time of the Mergers, GenuTec shall have delivered to Buyer the Company true and complete copies of (i) the unaudited balance sheet of the Company at October 31, 2007 (the “Most Recent Balance Sheet”) and the related audited statements of income, members’ equity, balance sheet and statements of cash flows with respect to of GenuTec and its business as of and for the Company years ended September 30, 2003 and September 30, 2004 and unaudited statements of income, balance sheet and statements of cash flows for the nine months then endedended June 30, and 2005 (ii) the audited balance sheet of the Company at January 31collectively, 2007 and the related statements of income, members’ equity, and cash flows for the 12 months then ended (the “2006 Financial Statements”). The financial statements listed above present fairly in all material respects the financial condition, results of operations, changes in members’ equity, and cash flows of the Company for the periods then ended, and, except (i) for footnotes and normal year-end adjustments in the case of interim financial statements, and (ii) as set forth in Schedule 2.7(a) attached hereto, have been prepared in accordance with GAAP applied consistently throughout the periods indicated. The Company maintains internal accounting controls designed to provide reasonable assurances that (a) transactions by the Company are executed in accordance with management’s general or specific authorization and (b) transactions by the Company are recorded as necessary to permit preparation of financial statements in conformity with GAAP and to maintain accountability for assets. There have been no instances of fraud that have occurred since January 31, 2007 involving the management of the Company or any other employees of the Company who have a significant role in the Company’s internal control over financial reporting.
(b) All of such Financial Statements present fairly the financial condition and results of operations of GenuTec for the dates or periods indicated thereon.
(c) Except for (i) the liabilities reflected on GenuTec’s balance sheet as of June 30, 2005 that has been provided to the Company, (ii) trade payables and accrued expenses incurred since July 1, 2005 in the ordinary course of business, none of which are material, (iii) executory contract obligations, and (iv) the liabilities set forth on in Schedule 2.7(b5.6(c) attached hereto and except for liabilities that have been or are incurred after the date of the Most Recent Balance Sheet in the Ordinary Course of Business or in connection with the transactions contemplated by this Agreementhereto, the Company GenuTec does not have any material liability liabilities or obligations (whether accrued, absolute, contingent, known, unknown or otherwise, and whether or not of a kind nature required by GAAP to be reflected on a balance sheet of the Company that was not reflected or reserved against in the Most Recent Balance Sheeta balance sheet in accordance with GAAP).
(cd) Except as otherwise set forth in Schedule 2.7(c) attached hereto5.6(d), the accounts receivable reflected in on the 2006 Financial StatementsJune 30, in the Most Recent Balance Sheet2005 balance sheet and all of GenuTec’s accounts receivable arising since June 30, or in the books and records of the Company as of the Closing Date 2005 arose from bona fide transactions in the Ordinary Course ordinary course of Businessbusiness, and the goods and services involved have been sold, delivered, delivered and performed to the account obligors, and no further filings (with Governmental Authoritiesgovernmental agencies, insurers, insurers or others others) are required to be made, no further goods are required to be provided, provided and no further services are required to be rendered in order to complete the sales and fully render the services and to entitle the Company GenuTec to collect the accounts receivable in full. Except as set forth on Schedule 2.7(c), all such accounts receivable are current and the reserves for such accounts receivable have been calculated in accordance with GAAP. Reserves for accounts receivable in the Most Recent Balance Sheet and in the books and records of the Company as of the Closing Date do not include reserves for any accounts receivable that become uncollectible as a result of the Merger or actions taken by Buyer subsequent to the Closing. Except as set forth in Schedule 2.7(c5.6(d), no such account has been assigned or pledged to any other Person person, firm or corporation, and, except only to the extent fully reserved against as set forth in the Most Recent June 30, 2005 Balance Sheet, no defense or set-off to any such account has been asserted by the account obligorobligor or exists.
(de) Except as otherwise set forth in Schedule 2.7(d) attached hereto5.6(e), the Inventory inventory of GenuTec as of the Closing Date shall consist of items of a quality, condition, condition and quantity reasonable and warranted in the present circumstances consistent with normal seasonally-adjusted inventory levels of the Company and shall be usable and saleable in the Ordinary Course ordinary and usual course of Business business for the purposes for which intended, except to the extent written down or reserved against on the June 30, 2005 balance sheet. Except as otherwise set forth in Schedule 2.7(d5.6(e), the GenuTec’s Inventory is valued on the Company’s books of account in accordance with GAAP (on an average cost basis) at the lower of cost or market, and the value of obsolete materials, materials below standard quality, quality and slow-moving materials have been written down in accordance with GAAP.
(ef) Except as set forth on Schedule 2.7(e) attached hereto and except for Inventory disposed of in provided under the Ordinary Course of Business since the date provisions of the Most Recent Balance Sheetagreements described in Schedule 5.6(f), the Company GenuTec has (i) good and marketable title to all will have as of the assets that it owns Closing Date legal and that are reflected on the Most Recent Balance Sheet or that are acquired after the Most Recent Balance Sheet by the Company beneficial ownership of its intellectual properties and not disposed of prior to the Closingother assets, and (ii) valid leasehold interests or licenses (as applicable) in all leases of material tangible personal property and licenses in intangible property that it Uses and that it leases or licenses (as applicable), in each case free and clear of any Liens, other than Permitted and all Liens.
(f) The Company owns or has the right to Use all of the assets necessary to continue the operations of the Company after the Closing as it has been conducted by the Company immediately prior to the date of this Agreement.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (GenuTec Business Solutions, Inc.), Agreement and Plan of Merger (GenuTec Business Solutions, Inc.)
Financial Statements; Liabilities; Accounts Receivable; Inventories. (a) The Company has delivered to Buyer true and complete copies of (i) the unaudited balance sheet of the Company at October 31, 2007 (the “Most Recent Balance Sheet”) and the related statements of income, members’ equity, and cash flows Financial Statements with respect to the Company and its business since the Company was formed (the “Financial Statements”), and said Financial Statements are attached hereto as Schedule 4.6(a). All of such Financial Statements present fairly the financial condition and results of operations of the Company for the nine months then endeddates or periods indicated thereon. All of such Financial Statements have been prepared in accordance with U.S. generally accepted accounting principles (“GAAP”) applied on a consistent basis throughout the periods indicated.
(b) Except for (i) the liabilities reflected on the Company’s September 30, 2005 balance sheet included with the Financial Statements attached as Schedule 4.6(a), and (ii) the audited balance sheet of the Company at January 31, 2007 and the related statements of income, members’ equity, and cash flows for the 12 months then ended (the “2006 Financial Statements”). The financial statements listed above present fairly in all material respects the financial condition, results of operations, changes in members’ equity, and cash flows of the Company for the periods then ended, and, except (i) for footnotes and normal year-end adjustments in the case of interim financial statements, and (ii) as liabilities set forth in Schedule 2.7(a) attached hereto, have been prepared in accordance with GAAP applied consistently throughout the periods indicated. The Company maintains internal accounting controls designed to provide reasonable assurances that (a) transactions by the Company are executed in accordance with management’s general or specific authorization and (b) transactions by the Company are recorded as necessary to permit preparation of financial statements in conformity with GAAP and to maintain accountability for assets. There have been no instances of fraud that have occurred since January 31, 2007 involving the management of the Company or any other employees of the Company who have a significant role in the Company’s internal control over financial reporting.
(b) Except as set forth on Schedule 2.7(b) attached hereto and except for liabilities that have been or are incurred after the date of the Most Recent Balance Sheet in the Ordinary Course of Business or in connection with the transactions contemplated by this Agreement4.6(b), the Company does not have any material liability liabilities or obligations (whether accrued, absolute, contingent, known, unknown or otherwise, and whether or not of a kind nature required by GAAP to be reflected on a balance sheet of the Company that was not reflected or reserved against in a balance sheet in accordance with GAAP). All loans from Members and Due to BFT Funding Co. 1. LLC are and accounts payable outstanding of the Most Recent Balance SheetSeller are to be an equity contribution to by the Seller and not obligations of the Buyer. Buyer agrees to reimburse Seller for payroll paid by Seller, considered normal and customary, and presented to Buyer for the period from October 16, 2005 through closing of this Agreement.
(c) Except as otherwise set forth in Schedule 2.7(c) attached hereto4.6(c), the accounts receivable reflected on the September 30,2005 balance sheet included in the 2006 Financial Statements, Statements referenced in the Most Recent Balance Sheet, or in the books Section 4.6(a) and records all of the Company as of Company’s accounts receivable arising since September 30, 2005 (the Closing Date “Balance Sheet Date”) arose from bona fide transactions in the Ordinary Course ordinary course of Businessbusiness, and the goods and services involved have been sold, delivered, delivered and performed to the account obligors, and no further filings (with Governmental Authoritiesgovernmental agencies, insurers, insurers or others others) are required to be made, no further goods are required to be provided, provided and no further services are required to be rendered in order to complete the sales and fully render the services and to entitle the Company to collect the accounts receivable in full. Except as set forth on Schedule 2.7(c), all such accounts receivable are current and the reserves for such accounts receivable have been calculated in accordance with GAAP. Reserves for accounts receivable in the Most Recent Balance Sheet and in the books and records of the Company as of the Closing Date do not include reserves for any accounts receivable that become uncollectible as a result of the Merger or actions taken by Buyer subsequent to the Closing. Except as set forth in Schedule 2.7(c4.6(c), no such account has been assigned or pledged to any other Person andperson, except only to the extent fully reserved against as set forth in the Most Recent Balance Sheetfirm or corporation, and no defense or set-off to any such account has been asserted by the account obligorobligor or exists.
(d) Except as otherwise set forth in Schedule 2.7(d) attached hereto, the Inventory The Company has and will have as of the Closing Date shall consist legal and beneficial ownership of items of a qualityits assets, condition, and quantity reasonable and warranted in the present circumstances of the Company and shall be usable and saleable in the Ordinary Course of Business for the purposes for which intended. Except as otherwise set forth in Schedule 2.7(d), the Inventory is valued on the Company’s books of account in accordance with GAAP (on an average cost basis) at the lower of cost or market, and the value of obsolete materials, materials below standard quality, and slow-moving materials have been written down in accordance with GAAP.
(e) Except as set forth on Schedule 2.7(e) attached hereto and except for Inventory disposed of in the Ordinary Course of Business since the date of the Most Recent Balance Sheet, the Company has (i) good and marketable title to all of the assets that it owns and that are reflected on the Most Recent Balance Sheet or that are acquired after the Most Recent Balance Sheet by the Company and not disposed of prior to the Closing, and (ii) valid leasehold interests or licenses (as applicable) in all leases of material tangible personal property and licenses in intangible property that it Uses and that it leases or licenses (as applicable), in each case free and clear of any Liensand all liens, mortgages, pledges, adverse claims, encumbrances or other than Permitted Liensrestrictions or limitations whatsoever.
(f) The Company owns or has the right to Use all of the assets necessary to continue the operations of the Company after the Closing as it has been conducted by the Company immediately prior to the date of this Agreement.
Appears in 1 contract
Samples: Membership Interest Purchase Agreement (Coach Industries Group Inc)
Financial Statements; Liabilities; Accounts Receivable; Inventories. (a) The Company has delivered to Buyer true and complete copies of (i) the unaudited balance sheet of the Company at October 31, 2007 (the “Most Recent Balance Sheet”) and the related statements of income, members’ equity, and cash flows Financial Statements with respect to the Company and its business as of and for the nine months then endedyears ended December 31, 1999, 2000 and 2001, and (ii) the audited balance sheet dated as of February 28, 2002 (the Company at January 31, 2007 and the related statements of income, members’ equity"Financial Statements"), and cash flows for the 12 months then ended (the “2006 said Financial Statements”Statements are attached hereto as Schedule 3.08(a). The financial statements listed above All of such Financial Statements present fairly in all material respects the financial condition, condition and results of operations, changes in members’ equity, and cash flows operations of the Company for the dates or periods then ended, and, except (i) for footnotes and normal year-end adjustments in the case indicated thereon. All of interim financial statements, and (ii) as set forth in Schedule 2.7(a) attached hereto, such Financial Statements have been prepared in accordance with GAAP generally accepted accounting principles ("GAAP") applied consistently on a consistent basis throughout the periods indicated. The Company maintains internal accounting controls designed to provide reasonable assurances that (a) transactions by the Company are executed in accordance with management’s general or specific authorization and (b) transactions by the Company are recorded as necessary to permit preparation of financial statements in conformity with GAAP and to maintain accountability for assets. There have been no instances of fraud that have occurred since January 31, 2007 involving the management of the Company or any other employees of the Company who have a significant role in the Company’s internal control over financial reporting.
(b) Except for (i) the liabilities reflected on the Company's February 28, 2002 balance sheet included with the Financial Statements attached as Schedule 3.08(a), (ii) trade payables and accrued expenses incurred since February 28, 2002 in the ordinary course of business, none of which are material, (iii) executory contract obligations under (x) Contracts listed on Schedule 3.13, and/or (y) Contracts not required to be listed on Schedule 3.13, and (iv) the liabilities set forth on in Schedule 2.7(b3.08(b) attached hereto and except for liabilities that have been or are incurred after the date of the Most Recent Balance Sheet in the Ordinary Course of Business or in connection with the transactions contemplated by this Agreementhereto, the Company does not have any material liability liabilities or obligations (whether accrued, absolute, contingent, known, unknown or otherwise, and whether or not of a kind nature required by GAAP to be reflected on a balance sheet of the Company that was not reflected or reserved against in the Most Recent Balance Sheeta balance sheet in accordance with GAAP).
(c) Except as otherwise set forth in Schedule 2.7(c) attached hereto3.08(c), the accounts receivable reflected on the February 28, 2002 balance sheet included in the 2006 Financial Statements, Statements referenced in the Most Recent Balance Sheet, or in the books Section 3.08(a) and records all of the Company as of Company's accounts receivable arising since February 28, 2002 (the Closing Date "Balance Sheet Date") arose from bona fide transactions in the Ordinary Course ordinary course of Businessbusiness, and the goods and services involved have been sold, delivered, delivered and performed to the account obligors, and no further filings (with Governmental Authoritiesgovernmental agencies, insurers, insurers or others others) are required to be made, no further goods are required to be provided, provided and no further services are required to be rendered in order to complete the sales and fully render the services and to entitle the Company to collect the accounts receivable in full. Except as set forth on Schedule 2.7(c), all such accounts receivable are current and the reserves for such accounts receivable have been calculated in accordance with GAAP. Reserves for accounts receivable in the Most Recent Balance Sheet and in the books and records of the Company as of the Closing Date do not include reserves for any accounts receivable that become uncollectible as a result of the Merger or actions taken by Buyer subsequent to the Closing. Except as set forth in Schedule 2.7(c3.08(c), no such account has been assigned or pledged to any other Person person, firm or corporation, and, except only to the extent fully reserved against as set forth in the Most Recent Balance SheetFebruary 28, 2002 balance sheet included in such Financial Statements, no defense or set-off to any such account has been asserted by the account obligorobligor or exists.
(d) Except as otherwise set forth in Schedule 2.7(d) attached hereto3.08(d), the Inventory of the Company as of the Closing Date shall consist of items of a quality, condition, condition and quantity reasonable and warranted in the present circumstances consistent with normal seasonally-adjusted Inventory levels of the Company and shall be usable and saleable in the Ordinary Course ordinary and usual course of Business business for the purposes for which intended, except to the extent written down or reserved against in the Financial Statements. Except as otherwise set forth in Schedule 2.7(d3.08(d), the Company's Inventory is valued on the Company’s 's books of account in accordance with GAAP (on an average cost basis) at the lower of cost or market, and the value of obsolete materials, materials below standard quality, quality and slow-moving materials have been written down in accordance with GAAP.
(e) Except as set forth on Schedule 2.7(e) attached hereto and except for Inventory disposed of in provided under the Ordinary Course of Business since the date provisions of the Most Recent Balance Sheetagreements described in Schedule 3.08(e), the Company has (i) good and marketable title to all will have as of the assets that it owns Closing Date legal and that are reflected on the Most Recent Balance Sheet or that are acquired after the Most Recent Balance Sheet by the Company and not disposed beneficial ownership of prior to the Closingits Properties, and (ii) valid leasehold interests or licenses (as applicable) in all leases of material tangible personal property and licenses in intangible property that it Uses and that it leases or licenses (as applicable), in each case free and clear of any and all liens, mortgages, pledges, adverse claims, encumbrances or other restrictions or limitations whatsoever ("Liens, other than Permitted Liens").
(f) The Company owns or has the right to Use all of the assets necessary to continue the operations of the Company after the Closing as it has been conducted by the Company immediately prior to the date of this Agreement.
Appears in 1 contract
Financial Statements; Liabilities; Accounts Receivable; Inventories. (a) The Company Seller has delivered to Buyer true and complete copies of (i) the unaudited balance sheet of the Company at October 31, 2007 (the “Most Recent Balance Sheet”) and the related statements of income, members’ equity, and cash flows Financial Statements with respect to the Company and its business as of and for the nine months then endedyears ended December 31, 2000 and 2001, and as of and for the 6 months ended June 30, 2002 (ii) the audited balance sheet of the Company at January 31, 2007 and the related statements of income, members’ equity"Financial Statements"), and cash flows for the 12 months then ended (the “2006 said Financial Statements”Statements are attached hereto as Schedule 3.08(a). The financial statements listed above All of such Financial Statements present fairly in all material respects the financial condition, condition and results of operations, changes in members’ equity, and cash flows operations of the Company for the dates or periods then ended, and, except (i) for footnotes and normal year-end adjustments in the case indicated thereon are free from any material misstatement of interim fact or omission of any fact which would make any such financial statements, and (ii) as set forth in Schedule 2.7(a) attached hereto, statements misleading. All of such Financial Statements have been prepared in accordance with GAAP generally accepted accounting principles ("GAAP") applied consistently on a consistent basis throughout the periods indicated. The Company maintains internal accounting controls designed to provide reasonable assurances that (a) transactions by the Company are executed in accordance with management’s general or specific authorization and (b) transactions by the Company are recorded as necessary to permit preparation of financial statements in conformity with GAAP and to maintain accountability for assets. There have been no instances of fraud that have occurred since January 31, 2007 involving the management of the Company or any other employees of the Company who have a significant role in the Company’s internal control over financial reporting.
(b) Except for (i) the liabilities reflected on the Company's December 31, 2001 balance sheet included with the Financial Statements attached as Schedule 3.08(a), (ii) trade payables and accrued expenses incurred since June 30, 2002 in the ordinary course of business, none of which are material, (iii) executory contract obligations under Contracts listed on Schedule 3.13, and/or Contracts not required to be listed on Schedule 3.13, and (iv) the liabilities set forth on in Schedule 2.7(b3.08(b) attached hereto and except for liabilities that have been or are incurred after the date of the Most Recent Balance Sheet in the Ordinary Course of Business or in connection with the transactions contemplated by this Agreementhereto, the Company does not have any material liability liabilities or obligations (whether accrued, absolute, contingent, known, unknown or otherwise, and whether or not of a kind nature required by GAAP to be reflected on a balance sheet of the Company that was not reflected or reserved against in the Most Recent Balance Sheeta balance sheet in accordance with GAAP).
(c) Except as otherwise set forth in Schedule 2.7(c) attached hereto3.08(c), the accounts receivable reflected on the June 30, 2002 balance sheet included in the 2006 Financial Statements, Statements referenced in the Most Recent Balance Sheet, or in the books Section 3.08(a) and records all of the Company as of Company's accounts receivable arising since July 1, 2002 (the Closing Date "Balance Sheet Date") arose from bona fide transactions in the Ordinary Course ordinary course of Businessbusiness, and the goods and services involved have been sold, delivered, delivered and performed to the account obligors, and no further filings (with Governmental Authoritiesgovernmental agencies, insurers, insurers or others others) are required to be made, no further goods are required to be provided, provided and no further services are required to be rendered in order to complete the sales and fully render the services and to entitle the Company to collect the accounts receivable in full. Except as set forth on Schedule 2.7(c), all such accounts receivable are current and the reserves for such accounts receivable have been calculated in accordance with GAAP. Reserves for accounts receivable in the Most Recent Balance Sheet and in the books and records of the Company as of the Closing Date do not include reserves for any accounts receivable that become uncollectible as a result of the Merger or actions taken by Buyer subsequent to the Closing. Except as set forth in Schedule 2.7(c3.08(c), no such account has been assigned or pledged to any other Person person, firm or corporation, and, except only to the extent fully reserved against as set forth in the Most Recent Balance SheetDecember, 2001 balance sheet included in such Financial Statements, no defense or set-off to any such account has been asserted by the account obligorobligor or exists.
(d) Except as otherwise set forth in Schedule 2.7(d) attached hereto3.08(d), the Inventory of the Company as of the Closing Date shall consist of items of a quality, condition, condition and quantity reasonable and warranted in the present circumstances consistent with normal seasonally-adjusted Inventory levels of the Company and shall be usable and saleable in the Ordinary Course ordinary and usual course of Business business for the purposes for which intended, except to the extent written down or reserved against on the Closing Date Balance Sheet. Except as otherwise set forth in Schedule 2.7(d3.08(d), the Company's Inventory is valued on the Company’s 's books of account in accordance with GAAP (on an average cost basis) at the lower of cost or market, and the value of obsolete materials, materials below standard quality, quality and slow-moving materials have been written down in accordance with GAAP.
(e) Except as set forth on Schedule 2.7(e) attached hereto and except for Inventory disposed of in provided under the Ordinary Course of Business since the date provisions of the Most Recent Balance Sheetagreements described in Schedule 3.08(e), the Company has (i) good and marketable title to all will have as of the assets that it owns Closing Date legal and that are reflected on the Most Recent Balance Sheet or that are acquired after the Most Recent Balance Sheet by the Company and not disposed beneficial ownership of prior to the Closingits Properties, and (ii) valid leasehold interests or licenses (as applicable) in all leases of material tangible personal property and licenses in intangible property that it Uses and that it leases or licenses (as applicable), in each case free and clear of any and all liens, mortgages, pledges, adverse claims, encumbrances or other restrictions or limitations whatsoever ("Liens, other than Permitted Liens").
(f) The Company owns or has the right to Use all has, as of the assets necessary to continue the operations of the Company after the Closing date hereof, such aged receivables (receivables at least 60 days overdue) as it has been conducted are listed (by the Company immediately prior to the date of this AgreementCustomer) on Schedule 3.08(f) hereto.
Appears in 1 contract
Samples: Stock Purchase Agreement (Xstream Beverage Group Inc)
Financial Statements; Liabilities; Accounts Receivable; Inventories. (a) The Company has delivered to Buyer true and complete copies of (i) the unaudited balance sheet of the Company at October 31, 2007 (the “Most Recent Balance Sheet”) and the related statements of income, members’ equity, and cash flows Financial Statements with respect to the Company and its business as of and for the nine months then endedyears ended February 1, and (ii) the audited balance sheet of the Company at 1998, January 31, 2007 1999 and the related statements of incomeJanuary 29, members’ equity2000, and cash flows as of and for the 12 two months then ended April 1, 2000 (the “2006 "Financial Statements”"), and said Financial Statements are attached hereto as Schedule 3.8(a). The financial statements listed above All of such Financial Statements present fairly in all material respects the financial condition, condition and results of operations, changes in members’ equity, and cash flows operations of the Company for the dates or periods then ended, and, except (i) for footnotes and normal year-end adjustments in the case indicated thereon. All of interim financial statements, and (ii) as set forth in Schedule 2.7(a) attached hereto, such Financial Statements have been prepared in accordance with GAAP applied consistently on a consistent basis throughout the periods indicated. The Company maintains internal accounting controls designed ; provided that the Financial Statements as of and for the two months ended April 1, 2000 lack footnotes and other presentation items and are subject to provide reasonable assurances that (a) transactions by the Company are executed in accordance normal year-end adjustments consistent with management’s general or specific authorization and (b) transactions by the Company are recorded as necessary to permit preparation past practice, none of financial statements in conformity with GAAP and to maintain accountability for assets. There have been no instances of fraud that have occurred since January 31, 2007 involving the management of the Company or any other employees of the Company who have a significant role in the Company’s internal control over financial reportingwhich will be material.
(b) Except for (i) the liabilities reflected on the Company's January 29, 2000 balance sheet included with the Financial Statements attached as Schedule 3.8(a), (ii) trade payables and accrued expenses incurred since January 29, 2000 (the "Balance Sheet Date") in the ordinary course of business, none of which are material, (iii) executory contract obligations under (x) Contracts listed on Schedule 3.13, and/or (y) Contracts not required to be listed on Schedule 3.13, and (iv) the liabilities set forth on in Schedule 2.7(b3.8(b) attached hereto and except for liabilities that have been or are incurred after the date of the Most Recent Balance Sheet in the Ordinary Course of Business or in connection with the transactions contemplated by this Agreementhereto, the Company does not have any material liability liabilities or obligations (whether accrued, absolute, contingent, known, unknown or otherwise, and whether or not of a kind nature required by GAAP to be reflected on a balance sheet of the Company that was not reflected or reserved against in the Most Recent Balance Sheeta balance sheet in accordance with GAAP).
(c) Except as otherwise set forth in Schedule 2.7(c) attached hereto3.8(c), the accounts receivable reflected on the January 29, 2000 balance sheet included in the 2006 Financial Statements, Statements referenced in the Most Recent Balance Sheet, or in the books Section 3.8(a) and records all of the Company as of Company's accounts receivable arising since the Closing Balance Sheet Date arose from bona fide transactions in the Ordinary Course ordinary course of Businessbusiness, and the goods and services involved have been sold, delivered, delivered and performed to the account obligors, and no further filings (with Governmental Authoritiesgovernmental agencies, insurers, insurers or others others) are required to be made, no further goods are required to be provided, provided and no further services are required to be rendered in order to complete the sales and fully render the services and to entitle the Company to collect the accounts receivable in full. Except as set forth on Schedule 2.7(c), all such accounts receivable are current and the reserves for such accounts receivable have been calculated in accordance with GAAP. Reserves for accounts receivable in the Most Recent Balance Sheet and in the books and records of the Company as of the Closing Date do not include reserves for any accounts receivable that become uncollectible as a result of the Merger or actions taken by Buyer subsequent to the Closing. Except as set forth in Schedule 2.7(c3.8(c), no such account has been assigned or pledged to any other Person person, firm or corporation, and, except only to the extent fully reserved against as set forth in the Most Recent Balance SheetJanuary 29, 2000 balance sheet included in such Financial Statements, no defense or set-off to any such account has been asserted by the account obligorobligor or exists.
(d) Except as otherwise set forth in Schedule 2.7(d) attached hereto3.8(d), the Inventory of the Company as of the Closing Date shall consist of items of a quality, condition, condition and quantity reasonable and warranted in the present circumstances consistent with normal seasonally-adjusted Inventory levels of the Company and shall be usable and saleable in the Ordinary Course ordinary and usual course of Business business for the purposes for which intended, except to the extent written down or reserved against on the Closing Date Balance Sheet. Except as otherwise set forth in Schedule 2.7(d3.8(d), the Company's Inventory is valued on the Company’s 's books of account in accordance with GAAP (on an average cost basis) at the lower of cost (first in, first out) or market, and the value of obsolete materials, materials below standard quality, quality and slow-moving materials have been written down in accordance with GAAP.
(e) Except as set forth on Schedule 2.7(e) attached hereto and except for Inventory disposed of in provided under the Ordinary Course of Business since the date provisions of the Most Recent Balance Sheetagreements described in Schedule 3.8(e), the Company has (i) good and marketable title to all will have as of the assets that it owns Closing Date legal and that are reflected on the Most Recent Balance Sheet or that are acquired after the Most Recent Balance Sheet by the Company and not disposed beneficial ownership of prior to the Closingits owned Properties, and (ii) valid leasehold interests or licenses (as applicable) in all leases of material tangible personal property and licenses in intangible property that it Uses and that it leases or licenses (as applicable), in each case free and clear of any Liens, other than Permitted and all Liens.
(f) The Company owns or has the right to Use all of the assets necessary to continue the operations of the Company after the Closing as it has been conducted by the Company immediately prior to the date of this Agreement.
Appears in 1 contract
Samples: Stock Purchase Agreement (Sunglass Hut International Inc)
Financial Statements; Liabilities; Accounts Receivable; Inventories. (a) The Company has delivered to Buyer Attached hereto as Schedule 3.08 (a) are true and complete copies of (i) financial statements with respect to Company and its business as of and for the unaudited balance sheet of years ended December 31, 2000, 2001 and 2002 and financial statements for the Company at ten months ended October 31, 2007 2003 (the “Most Recent Balance Sheet”) and the related statements of income, members’ equity, and cash flows with respect to the Company for the nine months then ended, and (ii) the audited balance sheet of the Company at January 31, 2007 and the related statements of income, members’ equity, and cash flows for the 12 months then ended (the “2006 "Financial Statements”"). The financial statements listed above All of such Financial Statements fairly present fairly in all material respects the financial condition, results of operations, changes in members’ equity, operations and cash flows of the Company for the dates or periods then ended, and, except (i) indicated thereon. All of such Financial Statements for footnotes and normal year-end adjustments in the case of interim financial statements, and (ii) as set forth in Schedule 2.7(a) attached hereto, 2003 have been prepared in accordance with GAAP AAP, applied consistently on a consistent basis throughout the periods indicated. The Company maintains internal accounting controls designed to provide reasonable assurances that (a) transactions by the Company are executed in accordance with management’s general or specific authorization and (b) transactions by the Company are recorded as necessary to permit preparation of financial statements in conformity with GAAP and to maintain accountability for assets. There have been no instances of fraud that have occurred since January 31, 2007 involving the management of the Company or any other employees of the Company who have a significant role in the Company’s internal control over financial reporting.
(b) Except for (i) the liabilities reflected on Company's October 31, 2003 balance sheet included with the Financial Statements attached as Schedule 3.08 (a), (ii) trade payables and accrued expenses incurred since October 31, 2003 in the ordinary course of business, which are not material either individually or in the aggregate, (iii) executory contract obligations under (x) Contracts listed on Schedule 3.13, and/or (y) Contracts not required to be listed on Schedule 3.13, and (iv) the liabilities set forth on in Schedule 2.7(b3.08 (b) attached hereto and except for liabilities that have been or are incurred after the date of the Most Recent Balance Sheet in the Ordinary Course of Business or in connection with the transactions contemplated by this Agreementhereto, the Company does not have any material liability liabilities or obligations of any nature (whether accrued, absolute, contingent, known, unknown or otherwise, and whether or not of a kind nature required by GAAP to be reflected on a balance sheet of the Company that was not reflected or reserved against in the Most Recent Balance Sheeta balance sheet in accordance with AAP).
(c) Except as otherwise set forth in Schedule 2.7(c) attached hereto3.08(c), the accounts receivable reflected on the October 31, 2003 balance sheet included in the 2006 Financial StatementsStatements referenced in Section 3.08(a) and all of Company's accounts receivable arising since October 31, in 2003 (the Most Recent "Balance Sheet, or in the books and records of the Company as of the Closing Date Sheet Date") arose from bona fide transactions in the Ordinary Course ordinary course of Businessbusiness, and the goods and services involved have been sold, delivered, delivered and performed to the account obligors, and no further filings (with Governmental Authoritiesgovernmental agencies, insurers, insurers or others others) are required to be made, no further goods are required to be provided, provided and no further services other than warranty services are required to be rendered in order to complete the sales and fully render the services and to entitle the Company to collect the accounts receivable in full. Except as The aggregate amount of such warranty services shall not exceed the dollar amount set forth on Schedule 2.7(c3.20(d), all such accounts receivable . Such account receivables are current and the reserves for such accounts receivable have been calculated will be collected at their recorded amounts in accordance with GAAP. Reserves for accounts receivable in the Most Recent Balance Sheet and in the books and records their terms within 90 days of the Company date hereof, except to the extent of any bad debt reserve as of the Closing Date do not include reserves for any accounts receivable that become uncollectible as a result of the Merger or actions taken by Buyer subsequent to the ClosingBalance Sheet Date. Except as set forth in Schedule 2.7(c3.08(c), no such account has been assigned or pledged to any other Person Person, firm or corporation, and, except only to the extent fully reserved against as set forth in the Most Recent Balance SheetOctober 31, 2003 balance sheet included in such Financial Statements, no defense or set-off to any such account has been asserted by the account obligorobligor or exists.
(d) Except as otherwise set forth in Schedule 2.7(d) attached hereto3.08(d), the Inventory of Company as of the Closing Date shall consist of items of a quality, condition, condition and quantity reasonable and warranted in the present circumstances consistent with normal seasonally-adjusted Inventory levels of the Company and shall be usable and saleable in the Ordinary Course ordinary and usual course of Business business for the purposes for which intended. Except as otherwise set forth in Schedule 2.7(d), except to the Inventory is valued extent written down or reserved against on the Closing Date Balance Sheet. The Company’s books 's Inventory as of account in accordance with GAAP (on an average cost basis) at the lower of cost or marketClosing Date, and the value of obsolete materials, materials below standard quality, and slow-moving materials have been written down if valued in accordance with GAAP, would have a book value at least equal to the book value thereof determined in accordance with AAP.
(e) Except as set forth on provided under the provisions of the agreements described in Schedule 2.7(e) attached hereto 3.08(e), and except for Inventory disposed of in the Ordinary Course of Business since the date of the Most Recent Balance SheetPermitted Exceptions with respect to Company Facility, the Company has (i) good legal and marketable title to all beneficial ownership of the assets that it owns and that are reflected on the Most Recent Balance Sheet or that are acquired after the Most Recent Balance Sheet by the Company and not disposed of prior to the Closingits Properties, and (ii) valid leasehold interests or licenses (as applicable) in all leases of material tangible personal property and licenses in intangible property that it Uses and that it leases or licenses (as applicable), in each case free and clear of any and all liens, mortgages, deeds of trust, pledges, adverse claims, encumbrances or other restrictions or limitations whatsoever ("Liens, other than Permitted Liens").
(f) The To the Knowledge of the Company owns and the Owners, none of Company's revenues or has currently booked orders by customers were or are subject to any set-aside, small, minority or disadvantaged business program and the right transactions contemplated hereby would not have resulted in lower revenues as a consequence of such programs and will not result in a loss of any currently booked order.
(g) Schedule 3.08(g) identifies all personal loans made by Company to Use all or for Company's officers and directors.
(h) Company maintains a system of internal accounting controls sufficient to insure the reliability of Company's financial reporting and the preparation of its financial statements in accordance with AAP and includes those policies and procedures that: (i) provide for the maintenance of records that accurately and fairly reflect the transactions and dispositions of the assets of Company; (ii) provide assurance that transactions are recorded as necessary to continue the operations permit preparation of the financial statements in accordance with AAP, and that transactions of Company after the Closing as it has been conducted by the Company immediately prior to the date are being made only in accordance with authorizations of this Agreementmanagement and directors of Company; and (iii) provide assurance regarding prevention or timely detection of unauthorized acquisition, use or disposition of Company's assets.
Appears in 1 contract
Financial Statements; Liabilities; Accounts Receivable; Inventories. (a) The As of the Closing, the Company has will have delivered to Buyer true and complete copies of (i) the unaudited balance sheet of the Company at October 31, 2007 (the “Most Recent Balance Sheet”) and the related statements of income, members’ equity, and cash flows audited Financial Statements with respect to the Company and its business as of and for the nine months then ended, and (ii) the audited balance sheet of the Company at January years ended December 31, 2007 2002, 2003 and the related statements of income, members’ equity, and cash flows for the 12 months then ended 2004 (the “2006 Company Financial Statements”), and said Company Financial Statements are attached hereto as Schedule 3.8(a). The financial statements listed above All of such Company Financial Statements present fairly in all material respects the financial condition, condition and results of operations, changes in members’ equity, and cash flows operations of the Company for the dates or periods then ended, and, except (i) for footnotes and normal year-end adjustments in the case indicated thereon. All of interim financial statements, and (ii) as set forth in Schedule 2.7(a) attached hereto, such Company Financial Statements have been prepared in accordance with GAAP applied consistently on a consistent basis throughout the periods indicated. The Company maintains internal accounting controls designed to provide reasonable assurances that (a) transactions by the Company are executed in accordance with management’s general or specific authorization and (b) transactions by the Company are recorded as necessary to permit preparation of financial statements in conformity with GAAP and to maintain accountability for assets. There have been no instances of fraud that have occurred since January 31, 2007 involving the management of the Company or any other employees of the Company who have a significant role in the Company’s internal control over financial reporting.
(b) Except as for (i) the liabilities reflected on the Company’s December 31, 2004 balance sheet included with the Company Financial Statements attached to Schedule 3.8(a), (ii) trade payables and accrued expenses incurred since December 31, 2004 in the ordinary course of business, none of which are material, (iii) executory contract obligations under (x) Contracts listed on Schedule 3.13, and/or (y) Contracts not required to be listed on Schedule 3.13, and (iv) the liabilities set forth on in Schedule 2.7(b3.8(b) attached hereto and except for liabilities that have been or are incurred after the date of the Most Recent Balance Sheet in the Ordinary Course of Business or in connection with the transactions contemplated by this Agreementhereto, the Company does not have any material liability liabilities or obligations (whether accrued, absolute, contingent, known, unknown or otherwise, and whether or not of a kind nature required by GAAP to be reflected on a balance sheet of the Company that was not reflected or reserved against in the Most Recent Balance Sheeta balance sheet in accordance with GAAP).
(c) Except as otherwise set forth in Schedule 2.7(c) attached hereto3.8(c), the accounts receivable reflected on the December 31, 2004 balance sheet included in the 2006 Company Financial Statements, Statements referenced in the Most Recent Balance Sheet, or in the books Section 3.8(a) and records all of the Company’s accounts receivable arising since December 31, 2004 (the “Company as of the Closing Date Balance Sheet Date”) arose from bona fide transactions in the Ordinary Course ordinary course of Businessbusiness, and the goods and services involved have been sold, delivered, delivered and performed to the account obligors, and no further filings (with Governmental Authoritiesgovernmental agencies, insurers, insurers or others others) are required to be made, no further goods are required to be provided, provided and no further services are required to be rendered in order to complete the sales and fully render the services and to entitle the Company to collect the accounts receivable in full. Except as set forth on Schedule 2.7(c), all such accounts receivable are current and the reserves for such accounts receivable have been calculated in accordance with GAAP. Reserves for accounts receivable in the Most Recent Balance Sheet and in the books and records of the Company as of the Closing Date do not include reserves for any accounts receivable that become uncollectible as a result of the Merger or actions taken by Buyer subsequent to the Closing. Except as set forth in Schedule 2.7(c3.8(c), no such account has been assigned or pledged to any other Person person, firm or corporation, and, except only to the extent fully reserved against as set forth in the Most Recent Balance SheetDecember 31, 2004 balance sheet included in such Company Financial Statements, no defense or set-off to any such account has been asserted by the account obligorobligor or exists.
(d) Except as otherwise set forth in Schedule 2.7(d) attached hereto3.8(d), the Inventory of the Company as of the Closing Date shall consist of items of a quality, condition, condition and quantity reasonable and warranted in the present circumstances consistent with normal seasonally-adjusted Inventory levels of the Company and shall be usable and saleable in the Ordinary Course ordinary and usual course of Business business for the purposes for which intended, except to the extent written down or reserved against on the Closing Date Balance Sheet. Except as otherwise set forth in Schedule 2.7(d3.8(d), the Company’s Inventory is valued on the Company’s books of account in accordance with GAAP (on an average cost basis) at the lower of cost or market, and the value of obsolete materials, materials below standard quality, quality and slow-moving materials have been written down in accordance with GAAP.
(e) Except as set forth on Schedule 2.7(e) attached hereto and except for Inventory disposed of in provided under the Ordinary Course of Business since the date provisions of the Most Recent Balance Sheetagreements described in Schedule 3.8(e), the Company has (i) good and marketable title to all will have as of the assets that it owns Closing Date, legal and that are reflected on the Most Recent Balance Sheet or that are acquired after the Most Recent Balance Sheet by the Company and not disposed beneficial ownership of prior to the Closingits Properties, and (ii) valid leasehold interests or licenses (as applicable) in all leases of material tangible personal property and licenses in intangible property that it Uses and that it leases or licenses (as applicable), in each case free and clear of any Liensand all liens, mortgages, pledges, adverse claims, encumbrances or other than Permitted Liensrestrictions or limitations whatsoever.
(f) The Company owns or has the right to Use all of the assets necessary to continue the operations of the Company after the Closing as it has been conducted by the Company immediately prior to the date of this Agreement.
Appears in 1 contract
Samples: Merger Agreement (Spectrum Sciences & Software Holdings Corp)
Financial Statements; Liabilities; Accounts Receivable; Inventories. (a) The Company has delivered to Buyer true and complete copies of (i) the unaudited balance sheet sheet, statement of the Company at October 31, 2007 (the “Most Recent Balance Sheet”) operations and the related statements statement of income, members’ equity, and cash flows with respect to the Company for and its business from December 2007 (the nine months then ended, and (ii) the audited balance sheet date of inception of the Company at January 31Company) through June 30, 2007 and the related statements of income, members’ equity, and cash flows for the 12 months then ended 2008 (the “2006 Financial Statements”). The financial statements listed above said Financial Statements are attached hereto as Schedule 4.7(a). All of such Financial Statements present fairly in all material respects the financial condition, condition and results of operations, changes in members’ equity, and cash flows operations of the Company for the dates or periods then ended, and, except (i) for footnotes and normal year-end adjustments in the case indicated thereon. All of interim financial statements, and (ii) as set forth in Schedule 2.7(a) attached hereto, such Financial Statements have been prepared in accordance with GAAP applied consistently on a consistent basis throughout the periods indicated. The Company maintains internal accounting controls designed to provide reasonable assurances that (a) transactions by the Company are executed in accordance with management’s general or specific authorization and (b) transactions by the Company are recorded as necessary to permit preparation of financial statements in conformity with GAAP and to maintain accountability for assets. There have been no instances of fraud that have occurred since January 31, 2007 involving the management of the Company or any other employees of the Company who have a significant role in the Company’s internal control over financial reporting.
(b) Except as for (i) trade payables and accrued expenses incurred since inception in the ordinary course of business, none of which are material, (ii) executory contract obligations under (x) Contracts listed on Schedule 4.12, and/or (y) Contracts not required to be listed on Schedule 4.12, and (iii) the liabilities set forth on in Schedule 2.7(b4.7(b) attached hereto and except for liabilities that have been or are incurred after the date of the Most Recent Balance Sheet in the Ordinary Course of Business or in connection with the transactions contemplated by this Agreementhereto, the Company does not have any material liability liabilities or obligations (whether accrued, absolute, contingent, known, or otherwise, and whether or not of a kind nature required by GAAP to be reflected on a balance sheet of the Company that was not reflected or reserved against in the Most Recent Balance Sheeta balance sheet in accordance with GAAP).
(c) Except as otherwise set forth in Schedule 2.7(c) attached hereto4.7(c), the accounts receivable reflected on the June 30, 2008 balance sheet included in the 2006 Financial Statements, Statements referenced in the Most Recent Balance Sheet, or in the books Section 5.8(a) and records all of the Company as of Company’s accounts receivable arising since June 30, 2008 (the Closing Date “Balance Sheet Date”) arose from bona fide transactions in the Ordinary Course ordinary course of Businessbusiness, and the goods and services involved have been sold, delivered, delivered and performed to the account obligors, and no further filings (with Governmental Authoritiesgovernmental agencies, insurers, insurers or others others) are required to be made, no further goods are required to be provided, provided and no further services are required to be rendered in order to complete the sales and fully render the services and to entitle the Company to collect the accounts receivable in full. Except as set forth on Schedule 2.7(c), all such accounts receivable are current and the reserves for such accounts receivable have been calculated in accordance with GAAP. Reserves for accounts receivable in the Most Recent Balance Sheet and in the books and records of the Company as of the Closing Date do not include reserves for any accounts receivable that become uncollectible as a result of the Merger or actions taken by Buyer subsequent to the Closing. Except as set forth in Schedule 2.7(c4.7(c), no such account has been assigned or pledged to any other Person andperson, except only to the extent fully reserved against as set forth in the Most Recent Balance Sheetfirm or corporation, and no defense or set-off to any such account has been asserted by the account obligorobligor or exists.
(d) Except as otherwise set forth in Schedule 2.7(d) attached hereto4.7(d), the Inventory of the Company as of the Closing Date shall consist of items of a quality, condition, condition and quantity reasonable and warranted in the present circumstances consistent with normal seasonally-adjusted Inventory levels of the Company and shall be usable and saleable in the Ordinary Course ordinary and usual course of Business business for the purposes for which intended, except to the extent written down or reserved against on the Closing Date Balance Sheet. Except as otherwise set forth in Schedule 2.7(d4.7(d), the Company’s Inventory is valued on the Company’s books of account in accordance with GAAP (on an average cost basis) at the lower of cost or market, and the value of obsolete materials, materials below standard quality, quality and slow-moving materials have been written down in accordance with GAAP.
(e) Except as set forth on Schedule 2.7(e) attached hereto and except for Inventory disposed of in provided under the Ordinary Course of Business since the date provisions of the Most Recent Balance Sheetagreements described in Schedule 4.7(e), the Company has (i) good and marketable title to all will have as of the assets that it owns Closing Date legal and that are reflected on the Most Recent Balance Sheet or that are acquired after the Most Recent Balance Sheet by the Company and not disposed beneficial ownership of prior to the Closingits Properties, and (ii) valid leasehold interests or licenses (as applicable) in all leases of material tangible personal property and licenses in intangible property that it Uses and that it leases or licenses (as applicable), in each case free and clear of any Liens, other than Permitted and all Liens.
(f) The By not later than November 30, 2008, the Company owns or has Stockholders shall have caused the right Company to Use all obtain, from the independent certified public accountant currently engaged by the Buyer, an audit of the assets necessary to continue the operations balance sheet, statement of income (loss) and statement of cash flows of the Company after as at September 30, 2008 and for the Closing as it has been conducted by the Company immediately prior to period of the date of this Agreementinception of the Company through and including September 30, 2008 (the “Audited Financial Statements”). Such Audited Financial Statements shall (i) have been prepared in accordance with GAAP, (ii) include all footnotes and schedules required under GAAP, and (ii) be prepared in the same manner as the financial statements of the Buyer are prepared so as to comply with Regulation S-X, as promulgated under the United States Securities Act of 1933, as amended. Unless otherwise agreed to by the Parties, the auditors regularly engaged to audit the financial statements of the Buyer shall also prepare and audit the aforesaid Audited Financial Statements of the Company.
Appears in 1 contract
Financial Statements; Liabilities; Accounts Receivable; Inventories. (a) The Company Seller has delivered to Buyer true and complete copies of (i) the unaudited balance sheet of the Company at October 31, 2007 (the “Most Recent Balance Sheet”) and the related statements of income, members’ equity, and cash flows following financial information with respect to the Company for Business (collectively, the nine months then ended, and “Financial Information”):
(i) 1998 - 2003 financial information - Schedule 5.4(a);
(ii) the audited balance sheet Accounts Receivable as of 12/31/2003 - Schedule 5.4(b);
(iii) Inventory as of 12/31/2003 - Schedule 5.4(c); and
(iv) Deferred (Unearned) Revenue - Schedule 5.4(d). All of the Company at January 31, 2007 Financial Information presents fairly the financial condition and results of operations of the related statements of income, members’ equity, and cash flows Business for the 12 months then ended (the “2006 Financial Statements”)dates or periods indicated thereon. The financial statements listed above present fairly in all material respects the financial condition, results of operations, changes in members’ equity, and cash flows All of the Company for the periods then ended, and, except (i) for footnotes and normal year-end adjustments in the case of interim financial statements, and (ii) as set forth in Schedule 2.7(a) attached hereto, have Financial Information has been prepared in accordance with GAAP generally accepted accounting principles (“GAAP”) applied consistently on a consistent basis throughout the periods indicated. The Company maintains internal accounting controls designed to provide reasonable assurances that (a) transactions by the Company are executed in accordance with management’s general or specific authorization and (b) transactions by the Company are recorded as necessary to permit preparation of financial statements in conformity with GAAP and to maintain accountability for assets. There have been no instances of fraud that have occurred since January 31, 2007 involving the management of the Company or any other employees of the Company who have a significant role in the Company’s internal control over financial reporting.
(b) Except for (i) the liabilities reflected on the Seller’s December 2003 financial statements included with the Financial Information attached as Schedule 5.4(a), (ii) trade payables and accrued expenses incurred since December 31, 2003 in the ordinary course of business of the Business, none of which are material, (iii) executory contract obligations under (x) contracts listed on Schedule 5.8, and/or (y) contracts not required to be listed on Schedule 5.8, and (iv) the liabilities set forth on in Schedule 2.7(b5.4(e) attached hereto and except for liabilities that have been or are incurred after the date of the Most Recent Balance Sheet in the Ordinary Course of Business or in connection with the transactions contemplated by this Agreementhereto, the Company Business does not have any material liability liabilities or obligations (whether accrued, absolute, contingent, known, unknown or otherwise, and whether or not of a kind nature required by GAAP to be reflected on a balance sheet of the Company that was not reflected or reserved against in the Most Recent Balance Sheeta balance sheet in accordance with GAAP).
(c) Except as otherwise set forth in Schedule 2.7(c) attached hereto5.4(f), the accounts receivable reflected in the 2006 Financial Statements, in the Most Recent Balance Sheet, or in the books and records inventory of the Company Business as of the Closing Date arose from bona fide transactions in the Ordinary Course of Business, and the goods and services involved have been sold, delivered, and performed to the account obligors, and no further filings with Governmental Authorities, insurers, or others are required to be made, no further goods are required to be provided, and no further services are required to be rendered in order to complete the sales and fully render the services and to entitle the Company to collect the accounts receivable in full. Except as set forth on Schedule 2.7(c), all such accounts receivable are current and the reserves for such accounts receivable have been calculated in accordance with GAAP. Reserves for accounts receivable in the Most Recent Balance Sheet and in the books and records of the Company as of the Closing Date do not include reserves for any accounts receivable that become uncollectible as a result of the Merger or actions taken by Buyer subsequent to the Closing. Except as set forth in Schedule 2.7(c), no such account has been assigned or pledged to any other Person and, except only to the extent fully reserved against as set forth in the Most Recent Balance Sheet, no defense or set-off to any such account has been asserted by the account obligor.
(d) Except as otherwise set forth in Schedule 2.7(d) attached hereto, the Inventory as of the Closing Date shall consist of items of a quality, condition, and quantity reasonable and warranted in the present circumstances of the Company and shall be usable and saleable in the Ordinary Course ordinary and usual course of Business business for the purposes for which intended. Except as otherwise set forth in Schedule 2.7(d5.4(f), the Inventory Seller’s inventory is valued on the CompanySeller’s books of account in accordance with GAAP (on an average cost basis) at the lower of cost or market, and the value of obsolete materials, materials below standard quality, quality and slow-moving materials have been written down in accordance with GAAP.
(ed) Except as set forth on described in Schedule 2.7(e) attached hereto 5.4(g), the Seller has and except for Inventory disposed of in the Ordinary Course of Business since the date will have as of the Most Recent Balance Sheet, the Company has (i) good Closing Date legal and marketable title to all beneficial ownership of the assets that it owns and that are reflected on the Most Recent Balance Sheet or that are acquired after the Most Recent Balance Sheet by the Company and not disposed of prior to the ClosingAssets, and (ii) valid leasehold interests or licenses (as applicable) in all leases of material tangible personal property and licenses in intangible property that it Uses and that it leases or licenses (as applicable), in each case free and clear of any Liens, other than Permitted and all Liens.
(f) The Company owns or has the right to Use all of the assets necessary to continue the operations of the Company after the Closing as it has been conducted by the Company immediately prior to the date of this Agreement.
Appears in 1 contract
Financial Statements; Liabilities; Accounts Receivable; Inventories. (a) The Company has delivered Prior to Buyer copies of (i) the unaudited balance sheet of Signing Date, pursuant to the STF Public Filings, the Company Stockholders have been furnished with the balance sheets and statements of operations of STF as at October December 31, 2007 (the “Most Recent Balance Sheet”) 2006 and the related statements of income, members’ equity, and cash flows with respect to the Company for the nine months then ended, and (ii) the audited balance sheet of the Company at January December 31, 2007 and the related statements of income, members’ equity, and cash flows for the 12 months respective fiscal year then ended (the “2006 STF Audited Financial Statements”) and balance sheets and statements of operations of STF as at June 30, 2008, and for the six month period then ended (the “STF Unaudited Financial Statements” and together with the STF Audited Financial Statements,” the “STF Financial Statements”); all of which are set forth in the STF Public Filings. The financial statements listed above present STF Financial Statements fairly represent in all material respects the financial condition, position of the respective entity as at such dates and the results of operations, changes in members’ equity, and cash flows of the Company its operations for the periods then ended. The STF Financial Statements were prepared in all material respects, andin accordance with United States generally accepted accounting principles (“GAAP”) applied on a consistent basis throughout the periods indicated (except as may be indicated in the notes thereto), except each presented, or will present, fairly the consolidated financial position, results of operations and cash flows of STF and the consolidated subsidiaries of STF as of the respective dates thereof and for the respective periods indicated therein (i) for footnotes and subject, in the case of unaudited statements, to normal year-end adjustments which are not material in amount or kind) and each complied, or will comply, as to form in all material respects with applicable accounting requirements and the published rules and regulations of the SEC with respect thereto. Except to the extent set forth in the STF Public Filings, no report of auditors in such STF Public Filings has been withdrawn or modified.
(b) Since January 1, 2005, STF has duly and timely filed with or furnished to the U.S. Securities and Exchange Commission (the “SEC”) all STF Public Filings. Except as disclosed therein, each of the STF Public Filings, at the time of its filing or furnishing and, to the extent applicable, its effective date or, in the case of interim a proxy or information statement, its mailing date, complied in all material respects, and each STF Public Filing to be filed or furnished after the date hereof, shall comply in all material respects with the requirements of the 33 Act, the 34 Act and the Xxxxxxxx-Xxxxx Act of 2002 and the rules and regulations of the SEC promulgated thereunder and other federal, state and local laws, rules and regulations applicable to such documents, and did not, at the time filed or furnished, and, to the extent applicable, its effective date or, in the case of a proxy or information statement, its mailing date, and will not, if filed or furnished subsequent to the date hereof, 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, in light of the circumstances under which they were made, not misleading. As of the date hereof, there are no outstanding or unresolved comments in the comment letters received from the staff of the SEC with respect to the STF Public Filings. None of STF’s subsidiaries is required to file periodic reports with the SEC pursuant to the 34 Act.
(c) STF and its subsidiaries have implemented and maintain a system of internal accounting controls sufficient to provide reasonable assurances regarding the reliability of financial statementsreporting and the preparation of financial statements in accordance with GAAP. STF (i) has implemented and maintains disclosure controls and procedures (as defined in Rule 13a-15(e) of the 34 Act) to ensure that material information relating to STF, including its consolidated subsidiaries, is made known to the Chief Executive Officer and the Chief Financial Officer of STF by others within those entities, and (ii) has disclosed, based on its most recent evaluation prior to the date of this Agreement, to STF’s outside auditors and the audit committee of STF’s Board of Directors (A) any significant deficiencies and material weaknesses in the design or operation of internal controls over financial reporting (as set forth defined in Schedule 2.7(aRule 13a-15(f) attached heretoof the 34 Act) that would be reasonably likely to materially and adversely affect STF’s ability to record, have been prepared in accordance with GAAP applied consistently throughout the periods indicated. The Company maintains internal accounting controls designed to provide reasonable assurances that (a) transactions by the Company are executed in accordance with management’s general or specific authorization process, summarize and report financial information and (bB) transactions by the Company are recorded as necessary to permit preparation of financial statements in conformity with GAAP and to maintain accountability for assets. There have been no instances of fraud any fraud, whether or not material, that have occurred since January 31, 2007 involving the involves management of the Company or any other employees of the Company who have a significant role in the CompanySTF’s internal control controls over financial reporting. A true, correct and complete summary of any such disclosures made by management to STF’s auditors and audit committee have been made available to the Company Stockholders.
(bd) Except as for (i) trade payables and accrued expenses incurred in the ordinary course of business, none of which are material, (ii) executory contract obligations under Contracts listed on Schedule 5.12, and (iii) the liabilities set forth in the STF Public Filings or on Schedule 2.7(b) attached hereto and except for liabilities that have been or are incurred after the date of the Most Recent Balance Sheet in the Ordinary Course of Business or in connection with the transactions contemplated by this Agreement5.8, the Company STF does not have any material liability liabilities or obligations (whether accrued, absolute, contingent, known or otherwise, and whether or not of a kind nature required by GAAP to be reflected on a balance sheet of the Company that was not reflected or reserved against in the Most Recent Balance Sheeta balance sheet in accordance with GAAP).
(ce) Except as otherwise set forth in the STF Public Filings or on Schedule 2.7(c) attached hereto5.8, the accounts receivable reflected on the September 30, 2008 balance sheet included in the 2006 STF Financial StatementsStatements referenced in Section 5.8(b) and all of STF’s accounts receivable arising since June 30, in 2008 (the Most Recent “Balance Sheet, or in the books and records of the Company as of the Closing Date Sheet Date”) arose from bona fide transactions in the Ordinary Course ordinary course of Businessbusiness, and the goods and services involved have been sold, delivered, delivered and performed to the account obligors, and no further filings (with Governmental Authoritiesgovernmental agencies, insurers, insurers or others others) are required to be made, no further goods are required to be provided, provided and no further services are required to be rendered in order to complete the sales and fully render the services and to entitle the Company STF to collect the accounts receivable in full. Except as set forth in the STF Public Filings or on Schedule 2.7(c), all such accounts receivable are current and the reserves for such accounts receivable have been calculated in accordance with GAAP. Reserves for accounts receivable in the Most Recent Balance Sheet and in the books and records of the Company as of the Closing Date do not include reserves for any accounts receivable that become uncollectible as a result of the Merger or actions taken by Buyer subsequent to the Closing. Except as set forth in Schedule 2.7(c)5.8, no such account has been assigned or pledged to any other Person andPerson, except only to the extent fully reserved against as set forth in the Most Recent Balance Sheet, and no defense or set-off to any such account has been asserted by the account obligorobligor or exists.
(df) Except as otherwise set forth in the STF Public Filings or on Schedule 2.7(d) attached hereto5.8, the Inventory of STF as of the Signing Date consists and as of the Closing Date shall consist consists of items of a quality, condition, condition and quantity reasonable and warranted in the present circumstances consistent with normal seasonally-adjusted Inventory levels of the Company STF are and shall be usable and saleable in the Ordinary Course ordinary and usual course of Business business for the purposes for which intended. Except as otherwise set forth in the STF Public Filings or on Schedule 2.7(d)5.8, the STF’s Inventory is valued on the CompanySTF’s books of account in accordance with GAAP (on an average cost basis) at the lower of cost or market, and the value of obsolete materials, materials below standard quality, quality and slow-moving materials have been written down in accordance with GAAP.
(eg) Except as set forth provided under the provisions of the agreements described in the STF Public Filings or on Schedule 2.7(e) attached hereto 5.8, STF has and except for Inventory disposed of in the Ordinary Course of Business since the date will have as of the Most Recent Balance SheetClosing Date legal and beneficial ownership of its Properties, the Company has (i) good and marketable title to all of the assets that it owns and that are reflected on the Most Recent Balance Sheet or that are acquired after the Most Recent Balance Sheet by the Company and not disposed of prior to the Closing, and (ii) valid leasehold interests or licenses (as applicable) in all leases of material tangible personal property and licenses in intangible property that it Uses and that it leases or licenses (as applicable), in each case free and clear of any Liens, other than Permitted Liensand all Liens and such Properties are sufficient for STF to conduct its business.
(f) The Company owns or has the right to Use all of the assets necessary to continue the operations of the Company after the Closing as it has been conducted by the Company immediately prior to the date of this Agreement.
Appears in 1 contract
Financial Statements; Liabilities; Accounts Receivable; Inventories. (a) The Company has delivered to Buyer copies of filed with the SEC: (i) the unaudited balance sheet of the Company at October 31, 2007 (the “Most Recent Balance Sheet”) and the related audited financial statements of income, members’ equity, and cash flows with respect to the Company and its business as of and for the nine months then endedyears ended December 31, 2007, 2008 and 2009 (the "AUDITED FINANCIAL STATEMENTS") and (ii) unaudited financial statements (the audited balance sheet "QUARTERLY FINANCIAL STATEMENTS") as of and for the Company at January three (3) months ended March 31, 2007 June 30 and September 30 since the related statements of incomeCompany's inception (collectively, members’ equity, and cash flows for the 12 months then ended (the “2006 Financial Statements”"FINANCIAL STATEMENTS"). The financial statements listed above All of such Financial Statements present fairly in all material respects the financial condition, condition and results of operations, changes in members’ equity, and cash flows operations of the Company for the dates or periods then ended, and, except (i) for footnotes and normal year-end adjustments indicated thereon. The Financial Statements complied in all material respects with the case requirements of interim financial statementsthe Exchange Act, and (ii) as set forth in Schedule 2.7(a) attached hereto, the rules and regulations of the SEC promulgated thereunder. The Financial Statements have been prepared in accordance with GAAP applied consistently throughout on a consistent basis during the periods indicated. The Company maintains internal accounting controls designed to provide reasonable assurances that (a) transactions by the Company are executed in accordance with management’s general or specific authorization and (b) transactions by the Company are recorded as necessary to permit preparation of financial statements in conformity with GAAP and to maintain accountability for assets. There have been no instances of fraud that have occurred since January 31, 2007 involving the management of the Company or any other employees of the Company who have a significant role in the Company’s internal control over financial reportinginvolved.
(b) Except as set forth on Schedule 2.7(b) attached hereto and except for liabilities that have been or are incurred after the date of the Most Recent Balance Sheet in the Ordinary Course of Business or in connection with the transactions contemplated by this Agreement, the The Company does not have any material liability liabilities or obligations (whether accrued, absolute, contingent, known, unknown or otherwise, and whether or not of a kind nature required by GAAP to be reflected on a balance sheet of the Company that was not reflected or reserved against in the Most Recent Balance Sheeta balance sheet in accordance with GAAP).
(c) Except as otherwise set forth in Schedule 2.7(c) attached hereto, the The accounts receivable reflected on the December 31, 2009 balance sheet included in the 2006 Financial Statements, Statements referenced in the Most Recent Balance Sheet, or in the books SECTION 3.7(a) and records all of the Company as of Company's accounts receivable arising since December 31, 2009 (the Closing Date "BALANCE SHEET DATE") arose from bona fide transactions in the Ordinary Course ordinary course of Businessbusiness, and the goods and services involved have been sold, delivered, delivered and performed to the account obligors, and no further filings (with Governmental Authoritiesgovernmental agencies, insurers, insurers or others others) are required to be made, no further goods are required to be provided, provided and no further services are required to be rendered in order to complete the sales and fully render the services and to entitle the Company to collect the accounts receivable in full. Except as set forth on Schedule 2.7(c), all such accounts receivable are current and the reserves for such accounts receivable have been calculated in accordance with GAAP. Reserves for accounts receivable in the Most Recent Balance Sheet and in the books and records of the Company as of the Closing Date do not include reserves for any accounts receivable that become uncollectible as a result of the Merger or actions taken by Buyer subsequent to the Closing. Except as set forth in Schedule 2.7(c), no No such account has been assigned or pledged to any other Person person, firm or corporation, and, except only to the extent fully reserved against as set forth in the Most Recent Balance SheetDecember 31, 2009 balance sheet included in such Financial Statements, no defense or set-off to any such account has been asserted by the account obligorobligor or exists.
(d) Except as otherwise set forth in Schedule 2.7(d) attached hereto, the Inventory The Company has and will have as of the Closing Date shall consist legal and beneficial ownership of items of a qualityits Properties, condition, and quantity reasonable and warranted in the present circumstances of the Company and shall be usable and saleable in the Ordinary Course of Business for the purposes for which intended. Except as otherwise set forth in Schedule 2.7(d), the Inventory is valued on the Company’s books of account in accordance with GAAP (on an average cost basis) at the lower of cost or market, and the value of obsolete materials, materials below standard quality, and slow-moving materials have been written down in accordance with GAAP.
(e) Except as set forth on Schedule 2.7(e) attached hereto and except for Inventory disposed of in the Ordinary Course of Business since the date of the Most Recent Balance Sheet, the Company has (i) good and marketable title to all of the assets that it owns and that are reflected on the Most Recent Balance Sheet or that are acquired after the Most Recent Balance Sheet by the Company and not disposed of prior to the Closing, and (ii) valid leasehold interests or licenses (as applicable) in all leases of material tangible personal property and licenses in intangible property that it Uses and that it leases or licenses (as applicable), in each case free and clear of any Liens, other than Permitted and all Liens.
(f) The Company owns or has the right to Use all of the assets necessary to continue the operations of the Company after the Closing as it has been conducted by the Company immediately prior to the date of this Agreement.
Appears in 1 contract
Samples: Securities Purchase Agreement (Bella Viaggio, Inc.)
Financial Statements; Liabilities; Accounts Receivable; Inventories. (a) The Company has delivered to Buyer true and complete copies of (i) the unaudited balance sheet sheets of the Company as at October December 31, 2007 (the “Most Recent Balance Sheet”) and as at December 31, 2008, and the related statements of income, members’ equity, operations and statements of cash flows with respect to the Company for and its business from the nine months then ended, and (ii) the audited balance sheet 2007 date of inception of the Company at January through December 31, 2007 2007, from January 1, 2008 to December 31, 2008, and the related statements management prepared balance sheet and statement of incomeoperations as at December 31, members’ equity, 2008 and cash flows for the 12 months fiscal year then ended (collectively, the “2006 Financial Statements”). The financial statements listed above said Financial Statements are attached hereto as Schedule 4.7(a). All of such Financial Statements present fairly in all material respects the financial condition, condition and results of operations, changes in members’ equity, and cash flows operations of the Company for the dates or periods then ended, and, except (i) for footnotes and normal year-end adjustments in the case indicated thereon. All of interim financial statements, and (ii) as set forth in Schedule 2.7(a) attached hereto, such Financial Statements have been prepared in accordance with GAAP applied consistently on a consistent basis throughout the periods indicated. The Company maintains internal accounting controls designed to provide reasonable assurances that (a) transactions by the Company are executed in accordance with management’s general or specific authorization and (b) transactions by the Company are recorded as necessary to permit preparation of financial statements in conformity with GAAP and to maintain accountability for assets. There have been no instances of fraud that have occurred since January 31, 2007 involving the management of the Company or any other employees of the Company who have a significant role in the Company’s internal control over financial reporting.
(b) Except as for (i) trade payables and accrued expenses incurred since inception in the ordinary course of business, none of which are material, (ii) executory contract obligations under (x) Contracts listed on Schedule 4.12, and/or (y) Contracts not required to be listed on Schedule 4.12, and (iii) the liabilities set forth on in Schedule 2.7(b4.7(b) attached hereto and except for liabilities that have been or are incurred after the date of the Most Recent Balance Sheet in the Ordinary Course of Business or in connection with the transactions contemplated by this Agreementhereto, the Company does not have any material liability liabilities or obligations (whether accrued, absolute, contingent, known, or otherwise, and whether or not of a kind nature required by GAAP to be reflected on a balance sheet of the Company that was not reflected or reserved against in the Most Recent Balance Sheeta balance sheet in accordance with GAAP).
(c) Except as otherwise set forth in Schedule 2.7(c) attached hereto4.7(c), the accounts receivable reflected on the December 31, 2008 balance sheet included in the 2006 Financial Statements, Statements referenced in the Most Recent Balance Sheet, or in the books Section 5.8(a) and records all of the Company as of Company’s accounts receivable arising since December 31, 2008 (the Closing Date “Balance Sheet Date”) arose from bona fide transactions in the Ordinary Course ordinary course of Businessbusiness, and the goods and services involved have been sold, delivered, delivered and performed to the account obligors, and no further filings (with Governmental Authoritiesgovernmental agencies, insurers, insurers or others others) are required to be made, no further goods are required to be provided, provided and no further services are required to be rendered in order to complete the sales and fully render the services and to entitle the Company to collect the accounts receivable in full. Except as set forth on Schedule 2.7(c), all such accounts receivable are current and the reserves for such accounts receivable have been calculated in accordance with GAAP. Reserves for accounts receivable in the Most Recent Balance Sheet and in the books and records of the Company as of the Closing Date do not include reserves for any accounts receivable that become uncollectible as a result of the Merger or actions taken by Buyer subsequent to the Closing. Except as set forth in Schedule 2.7(c4.7(c), no such account has been assigned or pledged to any other Person andperson, except only to the extent fully reserved against as set forth in the Most Recent Balance Sheetfirm or corporation, and no defense or set-off to any such account has been asserted by the account obligorobligor or exists.
(d) Except as otherwise set forth in Schedule 2.7(d) attached hereto4.7(d), the Inventory of the Company as of the Closing Date shall consist of items of a quality, condition, condition and quantity reasonable and warranted in the present circumstances consistent with normal seasonally-adjusted Inventory levels of the Company and shall be usable and saleable in the Ordinary Course ordinary and usual course of Business business for the purposes for which intended, except to the extent written down or reserved against on the Closing Date Balance Sheet. Except as otherwise set forth in Schedule 2.7(d4.7(d), the Company’s Inventory is valued on the Company’s books of account in accordance with GAAP (on an average cost basis) at the lower of cost or market, and the value of obsolete materials, materials below standard quality, quality and slow-moving materials have been written down in accordance with GAAP.
(e) Except as set forth on Schedule 2.7(e) attached hereto and except for Inventory disposed of in provided under the Ordinary Course of Business since the date provisions of the Most Recent Balance Sheetagreements described in Schedule 4.7(e), the Company has (i) good and marketable title to all will have as of the assets that it owns Closing Date legal and that are reflected on the Most Recent Balance Sheet or that are acquired after the Most Recent Balance Sheet by the Company and not disposed beneficial ownership of prior to the Closingits Properties, and (ii) valid leasehold interests or licenses (as applicable) in all leases of material tangible personal property and licenses in intangible property that it Uses and that it leases or licenses (as applicable), in each case free and clear of any Liens, other than Permitted and all Liens.
(f) The By not later than April 30, 2009 or as soon thereafter as is practicable, the Company owns or has Stockholders shall have caused the right Company to Use all obtain, from the independent certified public accountant currently engaged by the Buyer (i) an audit of the assets necessary to continue the operations balance sheets of the Company after as at December 31, 2007 and December 31, 2008, and (ii) an audit of the Closing as it has been conducted by statements of income (loss) and statement of cash flows of the Company immediately prior to for the following two (2) fiscal periods: (A) the date of this Agreementinception through December 31, 2007, and (B) the twelve months ended December 31, 2008 (collectively, the “Audited Financial Statements”). Such Audited Financial Statements shall (i) have been prepared in accordance with GAAP, (ii) include all footnotes and schedules required under GAAP, and (ii) be prepared in the same manner as the financial statements of the Buyer are prepared so as to comply with Regulation S-X, as promulgated under the United States Securities Act of 1933, as amended. Unless otherwise agreed to by the Parties, the auditors regularly engaged to audit the financial statements of the Buyer shall also prepare and audit the aforesaid Audited Financial Statements of the Company.
Appears in 1 contract
Financial Statements; Liabilities; Accounts Receivable; Inventories. (a) The Company has delivered to Buyer true and complete copies of (i) the unaudited balance sheet of the Company at October 31, 2007 (the “Most Recent Balance Sheet”) and the related statements of income, members’ equity, and cash flows Financial Statements with respect to the Company and its business as of and for the nine months then endedyears ended December 31, 1999, 2000 and 2001, and (ii) as of and for the audited balance sheet of the Company at January seven months ended July 31, 2007 and the related statements of income, members’ equity2002, and cash flows for the 12 months then ended (the “2006 said Financial Statements”Statements are attached hereto as Schedule 3.8(a). The financial statements listed above All of such Financial Statements present fairly in all material respects the financial condition, condition and results of operations, changes in members’ equity, and cash flows operations of the Company for the dates or periods then ended, and, except (i) for footnotes and normal year-end adjustments in the case of interim financial statements, and (ii) indicated thereon. Except as otherwise set forth in Schedule 2.7(a) attached hereto3.8(a), all of such Financial Statements have been prepared in accordance with GAAP applied consistently on a consistent basis throughout the periods indicated. The Company maintains internal accounting controls designed to provide reasonable assurances that (a) transactions by the Company are executed in accordance with management’s general or specific authorization and (b) transactions by the Company are recorded as necessary to permit preparation of financial statements in conformity with GAAP and to maintain accountability for assets. There have been no instances of fraud that have occurred since January 31, 2007 involving the management of the Company or any other employees of the Company who have a significant role in the Company’s internal control over financial reporting.
(b) Except for (i) the liabilities reflected on the Company's July 31, 2002 balance sheet included with the Financial Statements attached as Schedule 3.8(a), (ii) trade payables and -x- accrued expenses incurred since July 31, 2002 in the ordinary course of business, none of which are material, (iii) executory contract obligations under (x) Contracts listed on Schedule 3.13(a) or (c), and/or (y) Contracts not required to be listed on Schedule 3.13(a) or (c), and (iv) the liabilities set forth on in Schedule 2.7(b3.8(b) attached hereto and except for liabilities that have been or are incurred after the date of the Most Recent Balance Sheet in the Ordinary Course of Business or in connection with the transactions contemplated by this Agreementhereto, the Company does not have any material liability liabilities or obligations (whether accrued, absolute, contingent, known, unknown or otherwise, and whether or not of a kind nature required by GAAP to be reflected on a balance sheet of the Company that was not reflected or reserved against in the Most Recent Balance Sheeta balance sheet in accordance with GAAP).
(c) Except as otherwise set forth in Schedule 2.7(c) attached hereto3.8(c), the accounts receivable reflected on the July 31, 2002 balance sheet included in the 2006 Financial Statements, Statements referenced in the Most Recent Balance Sheet, or in the books Section 3.8(a) and records all of the Company as of Company's accounts receivable arising since December 31, 2001 (the Closing Date "Balance Sheet Date") arose from bona fide transactions in the Ordinary Course ordinary course of Businessbusiness, and the goods and services involved have been sold, delivered, delivered and performed to the account obligors, and no further filings (with Governmental Authorities, insurers, insurers or others others) are required to be made, no further goods are required to be provided, provided and no further services are required to be rendered in order to complete the sales and fully render the services and to entitle the Company to collect the accounts receivable in full. Except as set forth on in Schedule 2.7(c3.8(c), all such accounts receivable are current and the reserves for no such accounts receivable have been calculated in accordance with GAAP. Reserves for accounts receivable in the Most Recent Balance Sheet and in the books and records of the Company as of the Closing Date do not include reserves for any accounts receivable that become uncollectible as a result of the Merger or actions taken by Buyer subsequent to the Closing. Except as set forth in Schedule 2.7(c), no such account has been assigned or pledged to any other Person person, firm or corporation, and, except only to the extent fully reserved against as set forth in the Most Recent Balance SheetJuly 31, 2002 balance sheet included in such Financial Statements, no defense or set-off to any such account has been asserted by the account obligorobligor or exists.
(d) Except as otherwise set forth in Schedule 2.7(d) attached hereto3.8(d), the Inventory of the Company as of the Closing Date shall consist of items of a quality, condition, condition and quantity reasonable and warranted in the present circumstances consistent with normal seasonally-adjusted Inventory levels of the Company and shall be usable and saleable in the Ordinary Course ordinary and usual course of Business business for the purposes for which intended, except to the extent written down or reserved against on the Closing Date Balance Sheet. Except as otherwise set forth in Schedule 2.7(dhn 3.8(d), the Company's Inventory is valued on the Company’s 's books of account in accordance with GAAP (on an average cost basis) at the lower of cost or market, and the value of obsolete materials, materials below standard quality, quality and slow-moving materials have been written down in accordance with GAAP. For purposes of the representation in this Section 3.8(d), "slow-moving inventory" shall be deemed not to include inventory for which there is a corresponding open purchase order that the Company has no reason to believe will not be fulfilled.
(e) Except as set forth on Schedule 2.7(e) attached hereto and except for Inventory disposed of in provided under the Ordinary Course of Business since the date provisions of the Most Recent Balance Sheetagreements described in Schedule 3.8(e), the Company has (i) good and marketable title to all will have as of the assets that it owns Closing Date legal and that are reflected on the Most Recent Balance Sheet or that are acquired after the Most Recent Balance Sheet by the Company and not disposed beneficial ownership of prior to the Closingits Properties, and (ii) valid leasehold interests or licenses (as applicable) in all leases of material tangible personal property and licenses in intangible property that it Uses and that it leases or licenses (as applicable), in each case free and clear of any Liens, other than Permitted and all Liens.
(f) The Company owns or has the right to Use all of the assets necessary to continue the operations of the Company after the Closing as it has been conducted by the Company immediately prior to the date of this Agreement.
Appears in 1 contract
Financial Statements; Liabilities; Accounts Receivable; Inventories. (a) The Company Seller has delivered to Buyer true and complete copies of (i) the unaudited balance sheet of the Company at October 31, 2007 (the “Most Recent Balance Sheet”) and the related statements of income, members’ equity, and cash flows following financial information with respect to the Company for Business (collectively, the nine months then ended, and "Financial Information"):
(i) 1998 - 2003 financial information - Schedule 5.4(a);
(ii) the audited balance sheet Accounts Receivable as of 12/31/2003 - Schedule 5.4(b);
(iii) Inventory as of 12/31/2003 - Schedule 5.4(c); and
(iv) Deferred (Unearned) Revenue - Schedule 5.4(d). All of the Company at January 31, 2007 Financial Information presents fairly the financial condition and results of operations of the related statements of income, members’ equity, and cash flows Business for the 12 months then ended (the “2006 Financial Statements”)dates or periods indicated thereon. The financial statements listed above present fairly in all material respects the financial condition, results of operations, changes in members’ equity, and cash flows All of the Company for the periods then ended, and, except (i) for footnotes and normal year-end adjustments in the case of interim financial statements, and (ii) as set forth in Schedule 2.7(a) attached hereto, have Financial Information has been prepared in accordance with GAAP generally accepted accounting principles ("GAAP") applied consistently on a consistent basis throughout the periods indicated. The Company maintains internal accounting controls designed to provide reasonable assurances that (a) transactions by the Company are executed in accordance with management’s general or specific authorization and (b) transactions by the Company are recorded as necessary to permit preparation of financial statements in conformity with GAAP and to maintain accountability for assets. There have been no instances of fraud that have occurred since January 31, 2007 involving the management of the Company or any other employees of the Company who have a significant role in the Company’s internal control over financial reporting.
(b) Except for (i) the liabilities reflected on the Seller's December 2003 financial statements included with the Financial Information attached as Schedule 5.4(a), (ii) trade payables and accrued expenses incurred since December 31, 2003 in the ordinary course of business of the Business, none of which are material, (iii) executory contract obligations under (x) contracts listed on Schedule 5.8, and/or (y) contracts not required to be listed on Schedule 5.8, and (iv) the liabilities set forth on in Schedule 2.7(b5.4(e) attached hereto and except for liabilities that have been or are incurred after the date of the Most Recent Balance Sheet in the Ordinary Course of Business or in connection with the transactions contemplated by this Agreementhereto, the Company Business does not have any material liability liabilities or obligations (whether accrued, absolute, contingent, known, unknown or otherwise, and whether or not of a kind nature required by GAAP to be reflected on a balance sheet of the Company that was not reflected or reserved against in the Most Recent Balance Sheeta balance sheet in accordance with GAAP).
(c) Except as otherwise set forth in Schedule 2.7(c) attached hereto5.4(f), the accounts receivable reflected in the 2006 Financial Statements, in the Most Recent Balance Sheet, or in the books and records inventory of the Company Business as of the Closing Date arose from bona fide transactions in the Ordinary Course of Business, and the goods and services involved have been sold, delivered, and performed to the account obligors, and no further filings with Governmental Authorities, insurers, or others are required to be made, no further goods are required to be provided, and no further services are required to be rendered in order to complete the sales and fully render the services and to entitle the Company to collect the accounts receivable in full. Except as set forth on Schedule 2.7(c), all such accounts receivable are current and the reserves for such accounts receivable have been calculated in accordance with GAAP. Reserves for accounts receivable in the Most Recent Balance Sheet and in the books and records of the Company as of the Closing Date do not include reserves for any accounts receivable that become uncollectible as a result of the Merger or actions taken by Buyer subsequent to the Closing. Except as set forth in Schedule 2.7(c), no such account has been assigned or pledged to any other Person and, except only to the extent fully reserved against as set forth in the Most Recent Balance Sheet, no defense or set-off to any such account has been asserted by the account obligor.
(d) Except as otherwise set forth in Schedule 2.7(d) attached hereto, the Inventory as of the Closing Date shall consist of items of a quality, condition, and quantity reasonable and warranted in the present circumstances of the Company and shall be usable and saleable in the Ordinary Course ordinary and usual course of Business business for the purposes for which intended. Except as otherwise set forth in Schedule 2.7(d5.4(f), the Inventory Seller's inventory is valued on the Company’s Seller's books of account in accordance with GAAP (on an average cost basis) at the lower of cost or market, and the value of obsolete materials, materials below standard quality, quality and slow-moving materials have been written down in accordance with GAAP.
(ed) Except as set forth on described in Schedule 2.7(e) attached hereto 5.4(g), the Seller has and except for Inventory disposed of in the Ordinary Course of Business since the date will have as of the Most Recent Balance Sheet, the Company has (i) good Closing Date legal and marketable title to all beneficial ownership of the assets that it owns and that are reflected on the Most Recent Balance Sheet or that are acquired after the Most Recent Balance Sheet by the Company and not disposed of prior to the ClosingAssets, and (ii) valid leasehold interests or licenses (as applicable) in all leases of material tangible personal property and licenses in intangible property that it Uses and that it leases or licenses (as applicable), in each case free and clear of any Liens, other than Permitted and all Liens.
(f) The Company owns or has the right to Use all of the assets necessary to continue the operations of the Company after the Closing as it has been conducted by the Company immediately prior to the date of this Agreement.
Appears in 1 contract
Financial Statements; Liabilities; Accounts Receivable; Inventories. (a) The Company has delivered to Buyer true and complete copies of (i) the unaudited balance sheet of the Company at October 31, 2007 (the “Most Recent Balance Sheet”) and the related statements of income, members’ equity, and cash flows Financial Statements with respect to the Company as of and for the nine months then endedyears ended December 31, 1997, 1998 and 1999 (the "FINANCIAL STATEMENTS"), and (ii) the audited balance sheet of the Company at January 31, 2007 and the related statements of income, members’ equity, and cash flows for the 12 months then ended (the “2006 said Financial Statements”Statements are attached hereto as Schedule 3.8(a). The financial statements listed above All of such Financial Statements present fairly in all material respects the financial condition, condition and results of operations, changes in members’ equity, and cash flows operations of the Company for the dates or periods then ended, and, except (i) for footnotes and normal year-end adjustments in the case indicated thereon. All of interim financial statements, and (ii) as set forth in Schedule 2.7(a) attached hereto, such Financial Statements have been prepared in accordance with GAAP generally accepted accounting principles ("GAAP") applied consistently on a consistent basis throughout the periods indicated. The Company maintains internal accounting controls designed to provide reasonable assurances that (a) transactions by indicated except as indicated in the Company are executed notes thereto and, in accordance with management’s general or specific authorization and (b) transactions by the Company are recorded as necessary to permit preparation of financial statements in conformity with GAAP and to maintain accountability for assets. There have been no instances of fraud that have occurred since January 31, 2007 involving the management case of the Company or any other employees 1999 Financial Statements, the absence of the Company who have a significant role in the Company’s internal control over financial reportingnotes.
(b) Except for (i) the liabilities reflected or reserved against on the Company's December 31, 1999 balance sheet included with the Financial Statements attached as Schedule 3.8(a), (ii) trade payables, accrued expenses and other liabilities incurred since December 31, 1999 (the "BALANCE SHEET DATE") in the ordinary course of business, none of which are material, (iii) executory contract obligations under (x) Contracts listed on Schedule 3.13, and/or (y) Contracts not required to be listed on Schedule 3.13, and (iv) the liabilities set forth on in Schedule 2.7(b3.8(b) attached hereto and except for liabilities that have been or are incurred after the date of the Most Recent Balance Sheet in the Ordinary Course of Business or in connection with the transactions contemplated by this Agreementhereto, the Company does not have any material liability liabilities or obligations of any kind or nature whatsoever (whether accrued, absolute, contingent, known, unknown or otherwise, and whether or not of a kind nature required by GAAP to be reflected on a balance sheet of the Company that was not reflected or reserved against in the Most Recent Balance Sheeta balance sheet in accordance with GAAP).
(c) Except as otherwise set forth in Schedule 2.7(c) attached hereto3.8(c), the accounts receivable reflected on the December 31, 1999 balance sheet included in the 2006 Financial Statements, Statements referenced in the Most Recent Balance Sheet, or in the books Section 3.8(a) and records all of the Company as of Company's accounts receivable arising since the Closing Balance Sheet Date arose from bona fide transactions in the Ordinary Course ordinary course of Businessbusiness, and the goods and services involved have been sold, delivered, delivered and performed to the account obligors, and no further filings (with Governmental Authoritiesgovernmental agencies, insurers, insurers or others others) are required to be made, no further goods are required to be provided, provided and no further services are required to be rendered in order to complete the sales and fully render the services and to entitle the Company to collect the accounts receivable in full. Except as set forth on Schedule 2.7(c), all such accounts receivable are current and the reserves for such accounts receivable have been calculated in accordance with GAAP. Reserves for accounts receivable in the Most Recent Balance Sheet and in the books and records of the Company as of the Closing Date do not include reserves for any accounts receivable that become uncollectible as a result of the Merger or actions taken by Buyer subsequent to the Closing. Except as set forth in Schedule 2.7(c3.8(c), no such account has been assigned or pledged to any other Person person, firm or corporation, and, except only to the extent fully reserved against as set forth in the Most Recent Balance SheetDecember 31, 1999 balance sheet included in such Financial Statements, no defense or set-off to any such account has been asserted by the account obligorobligor or, to the Knowledge of the Company, otherwise exists.
(d) Except as otherwise set forth in Schedule 2.7(d) attached hereto3.8(d), the Inventory of the Company as of the Closing Balance Sheet Date shall consist consisted of items of a quality, condition, condition and quantity reasonable and warranted in the present circumstances consistent with normal seasonally-adjusted Inventory levels of the Company and shall be was usable and saleable in the Ordinary Course ordinary and usual course of Business business for the purposes for which intended, except to the extent written down or reserved against on the balance sheet included with the 1999 Financial Statements. Except as otherwise set forth in Schedule 2.7(d3.8(d), the Company's Inventory is valued on the Company’s 's books of account in accordance with GAAP (on an average cost basis) at the lower of cost (first in first out) or market, and the value of obsolete materials, materials below standard quality, quality and slow-moving materials have been written down in accordance with GAAP.
(e) Except as set forth on Schedule 2.7(e) attached hereto and except for Inventory disposed of in provided under the Ordinary Course of Business since the date provisions of the Most Recent Balance Sheetagreements described in Schedule 3.8(e), the Company has (i) good and marketable title to all will have as of the assets that it owns Closing Date legal and that are reflected on the Most Recent Balance Sheet or that are acquired after the Most Recent Balance Sheet by the Company and not disposed beneficial ownership of prior to the Closingits Properties, and (ii) valid leasehold interests or licenses (as applicable) in all leases of material tangible personal property and licenses in intangible property that it Uses and that it leases or licenses (as applicable), in each case free and clear of any Liensand all liens, mortgages, pledges, adverse claims, encumbrances or other than Permitted Liensrestrictions or limitations whatsoever ("LIENS").
(f) The Company owns or has the right to Use all of the assets necessary to continue the operations of the Company after the Closing as it has been conducted by the Company immediately prior to the date of this Agreement.
Appears in 1 contract
Samples: Merger Agreement (Smartdisk Corp)
