Reports; Financial Statements; Internal Controls. (a) All reports, schedules, forms, statements and other documents (including exhibits and all other information incorporated by reference therein) required to be filed or furnished by the Company with the SEC under the Exchange Act or Securities Act since January 1, 2018 (the “Company SEC Documents”) have been filed or furnished with the SEC on a timely basis. As of the time it was filed with the SEC (or, if amended or superseded, then on the date of such filing): (i) each of the Company SEC Documents complied in all material respects with the applicable requirements of the Securities Act, the Exchange Act and the Xxxxxxxx-Xxxxx Act (as the case may be) and the applicable regulations promulgated thereunder; and (ii) none of the Company SEC Documents contained any untrue statement of a material fact or omitted to state a 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. No Company Subsidiary has been required to file any forms, reports or other documents with the SEC at any time since January 1, 2018. Since January 1, 2017 no executive officer of the Company has failed in any respect to make the certifications required of him or her under Section 302 or 906 of the Xxxxxxxx-Xxxxx Act. (b) The financial statements (including any related notes) contained or incorporated by reference in the Company SEC Documents: (i) complied as to form in all material respects with the published rules and regulations of the SEC applicable thereto; (ii) were prepared in accordance with GAAP applied on a consistent basis throughout the periods covered (except as may be indicated in the notes to such financial statements or, in the case of unaudited statements, as permitted by Form 10-Q or any successor form under the Exchange Act, and except that unaudited financial statements may not contain footnotes and are subject to normal and recurring year-end adjustments); (iii) fairly present, in all material respects, the financial position of the Company and the Company’s consolidated Subsidiaries as of the respective dates thereof and the results of operations and consolidated cash flows of the Company and the Company’s consolidated Subsidiaries for the periods covered thereby subject, with respect to unaudited interim statements, to normal and recurring year-end adjustments and (iv) have been prepared from, and are in accordance with, the books and records of the Company and the Company’s consolidated Subsidiaries in all material respects. No financial statements of any Person other than the Company and the Company’s consolidated Subsidiaries are required by GAAP to be included in the consolidated financial statements of the Company. The books and records of the Company and the Company Subsidiaries have been, and are being, maintained in all material respects in accordance with GAAP and any other applicable legal and accounting requirements. As of the date of this Agreement, PricewaterhouseCoopers LLP has not resigned (or informed the Company that it intends to resign) or been dismissed as independent public accountants of the Company. (c) The Company maintains, and at all times since June 25, 2017 has maintained, a system of internal control over financial reporting (as defined in Rules 13a-15(f) and 15d-15(f) under the Exchange Act) which is designed to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with GAAP, and includes those policies and procedures that: (i) pertain to the maintenance of records that in reasonable detail accurately and fairly reflect the transactions and dispositions of the assets of the Company and the Company Subsidiaries; (ii) provide reasonable assurance that transactions are recorded as necessary to permit preparation of financial statements in conformity with GAAP and that receipts and expenditures are being made only in accordance with authorizations of management and directors of the Company; and (iii) provide reasonable assurance regarding prevention or timely detection of unauthorized acquisition, use or disposition of the assets of the Company and the Company Subsidiaries that could have a material effect on the financial statements. The Company’s management has completed an assessment of the effectiveness of the Company’s system of internal control over financial reporting in compliance with the requirements of Section 404 of the Xxxxxxxx-Xxxxx Act for the fiscal year ended June 29, 2019, and such assessment concluded that such controls were effective and the Company’s independent registered accountant has issued an attestation report concluding that the Company maintained effective internal control over financial reporting as of June 29, 2019. Management of the Company has disclosed to the Company’s auditors and the audit committee of the Company Board (i) any significant deficiencies or material weaknesses in the design and operation of internal controls over financial reporting and (ii) any fraud, whether or not material, that involves management or any other employees who have a significant role in the Company’s internal control over financial reporting, and each such deficiency, weakness and fraud so disclosed to auditors, if any, has been disclosed to Parent prior to the date hereof. (d) Since January 1, 2018, (i) none of the Company or any Company Subsidiary nor, to the knowledge of the Company, any director or officer of the Company or any Company Subsidiary has received or otherwise had or obtained knowledge of any material complaint, allegation, assertion or claim, whether written or oral, regarding accounting, internal accounting controls or auditing practices, procedures, methodologies or methods of the Company or any Company Subsidiary or any material complaint, allegation, assertion or claim from employees of the Company or any Company Subsidiary regarding questionable accounting or auditing matters with respect to the Company or any Company Subsidiary, and (ii) to the knowledge of the Company, no attorney representing the Company or any Company Subsidiary, whether or not employed by the Company or any Company Subsidiary, has reported evidence of a violation of securities laws, breach of fiduciary duty or similar violation by the Company, any Company Subsidiary or any of their respective officers, directors, employees or agents to the Company Board or any committee thereof, or to the Chief Legal, Administrative & Compliance Officer or Chief Executive Officer of the Company. (e) The Company maintains disclosure controls as required by Rule 13a-15 or 15d-15 under the Exchange Act. As of the date hereof, the Company is in compliance in all material respects with all current listing requirements of the Nasdaq Global Select Market (“Nasdaq”). (f) Neither the Company nor any Company Subsidiary is a party to, or has a commitment to effect, enter into or create, any joint venture, or “off-balance sheet arrangement” (as defined in Item 303(a) of Regulation S-K under the Exchange Act). (g) As of the date of this Agreement, there are no outstanding or unresolved comments in comment letters received from the SEC with respect to the Company SEC Documents, and none of the Company SEC Documents is, to the knowledge of the Company, the subject of ongoing SEC review. (h) Neither the Company nor any Company Subsidiary has any liabilities of any nature or type, whether accrued, absolute, determined, contingent or otherwise and whether due or to become due, except for: (i) liabilities disclosed in the financial statements (including any related notes) contained in the Most Recent Company Balance Sheet; (ii) liabilities incurred in the ordinary course of business since the date of the Most Recent Company Balance Sheet; (iii) liabilities that do not constitute or would not reasonably be expected to result in a Company Material Adverse Effect; and (iv) liabilities and obligations incurred in connection with the transactions contemplated by this Agreement.
Appears in 2 contracts
Samples: Merger Agreement (Analog Devices Inc), Merger Agreement (Maxim Integrated Products Inc)
Reports; Financial Statements; Internal Controls. (a) All reports, schedules, forms, statements and other documents (including exhibits and all other information incorporated by reference therein) required to be filed or furnished by the Company Parent with the SEC under the Exchange Act or Securities Act since January April 1, 2018 (the “Company Parent SEC Documents”) have been filed or furnished with the SEC on a timely basis. As of the time it was filed with the SEC (or, with respect to clause (i) below, if amended or superseded, then on the date of such amended or superseding filing): (i) each of the Company Parent SEC Documents complied in all material respects with the applicable requirements of the Securities Act, the Exchange Act and the Xxxxxxxx-Xxxxx Act (as the case may be) and the applicable regulations promulgated thereunderthereunder and the listing requirements and corporate governance rules and regulations of Nasdaq, each as in effect on the date such Parent SEC Document was filed; and (ii) none of the Company Parent SEC Documents contained any untrue statement of a material fact or omitted to state a 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. No Company Subsidiary has been required to file any forms, reports or other documents with the SEC at any time since January Since April 1, 2018. Since January 1, 2017 no executive officer of the Company Parent has failed in any respect to make the certifications required of him or her under Section 302 or 906 of the Xxxxxxxx-Xxxxx Act. Neither Parent nor, to the knowledge of Parent, any of its executive officers has received notice from any Governmental Entity challenging or questioning the accuracy, completeness, form or manner of filing of such certifications.
(b) The financial statements (including any related notes) contained or incorporated by reference in the Company Parent SEC Documents: (i) complied as to form in all material respects with the published rules and regulations of the SEC applicable thereto; (ii) were prepared in accordance with GAAP applied on a consistent basis throughout the periods covered (except as may be indicated in the notes to such financial statements or, in the case of unaudited statements, as permitted by Form 10-Q or any successor form under the Exchange Act, and except that unaudited financial statements may not contain footnotes and are subject to normal and recurring year-end adjustments); (iii) fairly present, in all material respects, the financial position of the Company Parent and the CompanyParent’s consolidated Subsidiaries as of the respective dates thereof and the results of operations and consolidated cash flows of the Company Parent and the CompanyParent’s consolidated Subsidiaries for the periods covered thereby subject, with respect to unaudited interim statements, to normal and recurring year-end adjustments adjustments; and (iv) have been prepared from, and are in accordance with, the books and records of the Company Parent and the CompanyParent’s consolidated Subsidiaries in all material respects. No financial statements of any Person other than the Company Parent and the CompanyParent’s consolidated Subsidiaries are required by GAAP to be included in the consolidated financial statements of the CompanyParent. The books and records of the Company Parent and the Company Parent Subsidiaries have been, and are being, maintained in all material respects in accordance with GAAP and any other applicable legal and accounting requirements. As of the date of this Agreement, PricewaterhouseCoopers LLP has not resigned (or informed the Company Parent that it intends to resign) or been dismissed as independent public accountants of the CompanyParent.
(c) The Company Parent maintains, and at all times since June 25April 1, 2017 2018 has maintained, a system of internal control over financial reporting (as defined in Rules 13a-15(f) and 15d-15(f) under the Exchange Act) which is designed to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with GAAP, and includes those policies and procedures that: (i) pertain to the maintenance of records that in reasonable detail accurately and fairly reflect the transactions and dispositions of the assets of the Company Parent and the Company Parent Subsidiaries; (ii) provide reasonable assurance that transactions are recorded as necessary to permit preparation of financial statements in conformity with GAAP and that receipts and expenditures are being made only in accordance with authorizations of management and directors of the CompanyParent; and (iii) provide reasonable assurance regarding prevention or timely detection of unauthorized acquisition, use or disposition of the assets of the Company Parent and the Company Parent Subsidiaries that could have a material effect on the financial statements. The CompanyParent’s management has completed an assessment of the effectiveness of the CompanyParent’s system of internal control over financial reporting in compliance with the requirements of Section 404 of the Xxxxxxxx-Xxxxx Act for the fiscal year ended June 29March 31, 20192020, and such assessment concluded that such controls were effective and the CompanyParent’s independent registered accountant has issued an attestation report concluding that the Company Parent maintained effective internal control over financial reporting as of June 29March 31, 20192020. Management of the Company Parent has disclosed to the CompanyParent’s auditors and the audit committee of the Company Parent Board (ix) any significant deficiencies or material weaknesses in the design and operation of internal controls over financial reporting and (iiy) any fraud, whether or not material, that involves management or any other employees who have a significant role in the CompanyParent’s internal control over financial reporting, and each such deficiency, weakness and fraud so disclosed to auditors, if any, has been disclosed to Parent the Company prior to the date hereof.
(d) Since January April 1, 2018, (i) none of the Company Parent or any Company Parent Subsidiary nor, to the knowledge of the CompanyParent, any director or officer of the Company Parent or any Company Parent Subsidiary has received or otherwise had or obtained knowledge of any material complaint, allegation, assertion or claim, whether written or oral, regarding accounting, internal accounting controls or auditing practices, procedures, methodologies or methods of the Company Parent or any Company Parent Subsidiary or any material complaint, allegation, assertion or claim from employees of the Company Parent or any Company Parent Subsidiary regarding questionable accounting or auditing matters with respect to the Company Parent or any Company Parent Subsidiary, and (ii) to the knowledge of the CompanyParent, no attorney representing the Company Parent or any Company Parent Subsidiary, whether or not employed by the Company Parent or any Company Parent Subsidiary, has reported evidence of a violation of securities laws, breach of fiduciary duty or similar violation by the CompanyParent, any Company Parent Subsidiary or any of their respective officers, directors, employees or agents to the Company Parent Board or any committee thereof, or to the Chief Legal, Administrative & Compliance Officer General Counsel or Chief Executive Officer of the CompanyParent.
(e) The Company Parent maintains disclosure controls as required by Rule 13a-15 or 15d-15 under the Exchange Act. As of the date hereof, the Company Parent is in compliance in all material respects with all current listing requirements of the Nasdaq Global Select Market (“Nasdaq”).
(f) Neither the Company Parent nor any Company Parent Subsidiary is a party to, or has a commitment to effect, enter into or create, any joint venture, or “off-balance sheet arrangement” (as defined in Item 303(a) of Regulation S-K under the Exchange Act).
(g) As of the date of this Agreement, there are no outstanding or unresolved comments in comment letters received from the SEC with respect to the Company Parent SEC Documents, and none of the Company Parent SEC Documents is, to the knowledge of the CompanyParent, the subject of ongoing SEC reviewreview or investigation.
(h) Neither the Company Parent nor any Company Parent Subsidiary has any liabilities of any nature or type, whether accrued, absolute, determined, contingent or otherwise and whether due or to become due, that would be required by GAAP to be reflected on a condensed consolidated balance sheet of Parent and its consolidated Parent Subsidiaries, except for: (i) liabilities disclosed in the financial statements (including any related notes) contained in the Most Recent Company Parent Balance Sheet; (ii) liabilities incurred in the ordinary course of business consistent with past practice since the date of the Most Recent Company Parent Balance Sheet; (iii) liabilities that that, individually or in the aggregate, do not constitute or and would not reasonably be expected to constitute or result in a Company Parent Material Adverse Effect; and (iv) liabilities and obligations incurred in connection with the transactions contemplated by this Agreement.
Appears in 2 contracts
Samples: Merger Agreement (Viasat Inc), Merger Agreement (RigNet, Inc.)
Reports; Financial Statements; Internal Controls. (a) All The Company and each of the Subsidiaries have timely filed all reports, registrations, schedules, forms, statements and other documents (including exhibits and all other information incorporated by reference therein) documents, together with any amendments required to be filed or furnished by the Company made with the SEC under the Exchange Act or Securities Act respect thereto (each, a “Report”), that they were required to file since January 1, 2018 2007 with (i) the “FCC, (ii) the SEC, (iii) any state or other federal regulatory authority (other than any taxing authority, which is dealt with exclusively in Section 3.10) and (iv) any foreign regulatory authority (other than any taxing authority, which is dealt with exclusively in Section 3.10), and have paid all fees and assessments due and payable in connection therewith, except in each case where the failure to file such Report, or to pay such fees and assessments, has not had, and would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect. No Report of the Company SEC Documents”) have been filed or furnished made with the SEC on a timely basis. As SEC, as of the time it was filed with the SEC (or, if amended or superseded, then on the date of such filing): Report, contained any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary in order to make the statements made therein, in the light of the circumstances in which they were made, not misleading, except that information as of a later date (ibut before the date of this Agreement) each shall be deemed to modify information as of an earlier date. Since January 1, 2007, as of their respective dates, all Reports of the Company made with the SEC Documents complied as to form in all material respects with the applicable requirements of the Securities Act, the Exchange Act and Act, the Xxxxxxxx-Xxxxx Act of 2002 (as the case may be“SOX Act”) and the applicable rules and regulations promulgated thereunder; and (ii) none of the Company SEC Documents contained any untrue statement of a material fact or omitted to state a 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 misleadingthereunder with respect thereto. No Company Subsidiary has been required to file any forms, reports or other documents with the SEC at any time since January 1, 2018. Since January 1, 2017 no executive officer of the Company has failed in any respect to make the certifications required of him or her under Section 302 or 906 of the Xxxxxxxx-Xxxxx SOX Act, and, to the Knowledge of the Company, no enforcement action has been initiated against the Company by the SEC relating to disclosures contained in any Report of the Company made with the SEC.
(b) The Company has previously made available to Parent copies of (i) the consolidated balance sheet of the Company and the Subsidiaries as of December 31, 2008, and the related consolidated statements of operations, stockholders’ equity and cash flows for each of the two years in the period ended December 31, 2008, as reported in the Company’s Annual Report on Form 10-K for the fiscal year ended December 31, 2008, including any amendments thereto filed with the SEC (collectively, the “Company 2008 10-K”), filed with the SEC under the Exchange Act, accompanied by the audit report by Deloitte & Touche LLP, the independent registered public accounting firm with respect to the Company for such periods (such balance sheets and statements, the “Audited Company Financial Statements”) and (ii) the unaudited consolidated balance sheet of the Company and the Subsidiaries as of June 30, 2009 and the related consolidated statements of operations, stockholders’ equity and cash flows for the six-month period ended June 30, 2009, as reported in the Company’s Quarterly Report on Form 10-Q for the quarterly period ended June 30, 2009, including any amendments (collectively, the “Company 10-Q”) (such balance sheets and statements, the “Unaudited Company Financial Statements” and, together with the Audited Company Financial Statements, the “Company Financial Statements”). The consolidated balance sheets of the Company (including the related notes, where applicable) included in the Company Financial Statements fairly present in all material respects the consolidated financial position of the Company and the Subsidiaries as of the dates thereof, and the other financial statements included in the Company Financial Statements (including the related notes, where applicable) fairly present in all material respects the consolidated results of the operations and changes in stockholders’ equity and cash flows of the Company and the Subsidiaries for the respective fiscal periods therein set forth, subject in the case of the Unaudited Company Financial Statements to any year-end audit adjustments that are consistent with past experience; each of such statements (including any the related notes, where applicable) contained or incorporated by reference in the Company SEC Documents: (i) complied as to form complies in all material respects with the published rules and regulations of the SEC applicable with respect thereto; (ii) were prepared in accordance with GAAP applied on a consistent basis throughout the periods covered (except as may be indicated in the notes to such financial statements or, in the case of unaudited statements, as permitted by Form 10-Q or any successor form under the Exchange Act, and except that unaudited financial statements may not contain footnotes and are subject to normal and recurring year-end adjustments); (iii) fairly present, in all material respects, the financial position each of the Company and Financial Statements (including the Company’s consolidated Subsidiaries as of the respective dates thereof and the results of operations and consolidated cash flows of the Company and the Company’s consolidated Subsidiaries for the periods covered thereby subjectrelated notes, with respect to unaudited interim statements, to normal and recurring year-end adjustments and (ivwhere applicable) have has been prepared from, and are in accordance with, the books and records of the Company and the Company’s consolidated Subsidiaries in all material respects. No financial statements of any Person other than the Company and the Company’s consolidated Subsidiaries are required by GAAP to be included in the consolidated financial statements of the Company. The books and records of the Company and the Company Subsidiaries have been, and are being, maintained in all material respects in accordance with GAAP and any other applicable legal and accounting requirements. As of consistently applied during the date of this Agreementperiods involved, PricewaterhouseCoopers LLP has not resigned (except, in each case, as indicated in such statements or informed in the Company that it intends to resign) or been dismissed as independent public accountants of the Companynotes thereto.
(c) The Company maintains, and at all times since June 25, 2017 has maintained, the Subsidiaries have designed and maintain a system of internal control controls over financial reporting (as defined in Rules 13a-15(f) and 15d-15(f) under of the Exchange Act) which is designed sufficient to provide reasonable assurance assurances regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with GAAP, and includes those policies and procedures that: reporting. The Company (i) pertain has designed and maintains disclosure controls and procedures (as defined in Rules 13a-15(e) and 15d-15(e) of the Exchange Act) to ensure that material information required to be disclosed by the Company in the Reports that it files or submits under the Exchange Act is recorded, processed, summarized and reported within the time periods specified in the SEC’s rules and forms and is accumulated and communicated to the maintenance of records that in reasonable detail accurately Company’s management as appropriate to allow timely decisions regarding required disclosure and fairly reflect the transactions and dispositions of the assets of the Company and the Company Subsidiaries; (ii) provide reasonable assurance that transactions are recorded as necessary has disclosed, based on its most recent evaluation of such disclosure controls and procedures prior to permit preparation of financial statements in conformity with GAAP and that receipts and expenditures are being made only in accordance with authorizations of management and directors of the Company; and (iii) provide reasonable assurance regarding prevention or timely detection of unauthorized acquisitiondate hereof, use or disposition of the assets of the Company and the Company Subsidiaries that could have a material effect on the financial statements. The Company’s management has completed an assessment of the effectiveness of the Company’s system of internal control over financial reporting in compliance with the requirements of Section 404 of the Xxxxxxxx-Xxxxx Act for the fiscal year ended June 29, 2019, and such assessment concluded that such controls were effective and the Company’s independent registered accountant has issued an attestation report concluding that the Company maintained effective internal control over financial reporting as of June 29, 2019. Management of the Company has disclosed to the Company’s auditors and the audit committee of the Board of Directors of the Company Board (iA) any significant deficiencies or and material weaknesses in the design and or operation of internal controls over financial reporting that are reasonably likely to adversely affect in any material respect the Company’s ability to record, process, summarize and report financial information and (iiB) any identified fraud, whether or not material, that involves management or any other employees who have a significant role in the Company’s internal control controls over financial reporting, and each such deficiency, weakness and fraud so disclosed to auditors, if any, has been disclosed to Parent prior to the date hereof.
(d) Since January 1, 2018, (i) none of the Company or any Company Subsidiary nor, to the knowledge of the Company, any director or officer of the Company or any Company Subsidiary has received or otherwise had or obtained knowledge of any material complaint, allegation, assertion or claim, whether written or oral, regarding accounting, internal accounting controls or auditing practices, procedures, methodologies or methods of the Company or any Company Subsidiary or any material complaint, allegation, assertion or claim from employees of the Company or any Company Subsidiary regarding questionable accounting or auditing matters with respect to the Company or any Company Subsidiary, and (ii) to the knowledge of the Company, no attorney representing the Company or any Company Subsidiary, whether or not employed by the Company or any Company Subsidiary, has reported evidence of a violation of securities laws, breach of fiduciary duty or similar violation by the Company, any Company Subsidiary or any of their respective officers, directors, employees or agents to the Company Board or any committee thereof, or to the Chief Legal, Administrative & Compliance Officer or Chief Executive Officer of the Company.
(e) The Company maintains disclosure controls as required by Rule 13a-15 or 15d-15 under the Exchange Act. As of the date hereof, the Company is in compliance in all material respects with all current listing requirements of the Nasdaq Global Select Market (“Nasdaq”).
(f) Neither the Company nor any Company Subsidiary is a party to, or has a commitment to effect, enter into or create, any joint venture, or “off-balance sheet arrangement” (as defined in Item 303(a) of Regulation S-K under the Exchange Act).
(g) As of the date of this Agreement, there are no outstanding or unresolved comments in comment letters received from the SEC with respect to the Company SEC Documents, and none of the Company SEC Documents is, to the knowledge of the Company, the subject of ongoing SEC review.
(h) Neither the Company nor any Company Subsidiary has any liabilities of any nature or type, whether accrued, absolute, determined, contingent or otherwise and whether due or to become due, except for: (i) liabilities disclosed in the financial statements (including any related notes) contained in the Most Recent Company Balance Sheet; (ii) liabilities incurred in the ordinary course of business since the date of the Most Recent Company Balance Sheet; (iii) liabilities that do not constitute or would not reasonably be expected to result in a Company Material Adverse Effect; and (iv) liabilities and obligations incurred in connection with the transactions contemplated by this Agreement.
Appears in 2 contracts
Samples: Merger Agreement (Sprint Nextel Corp), Merger Agreement (iPCS, INC)
Reports; Financial Statements; Internal Controls. (a) All The Company and each of its Subsidiaries have timely filed all reports, registrations, schedules, forms, statements and other documents (including exhibits and all other information incorporated by reference therein) documents, together with any amendments required to be filed or furnished by the Company made with the SEC under the Exchange Act or Securities Act respect thereto (each, a “Report”), that they were required to file since January 1, 2018 2003 with (i) the “FCC, (ii) the SEC, (iii) any state or other federal regulatory authority (other than any taxing authority, which is covered by Section 3.10) and (iv) any foreign regulatory authority (other than any taxing authority, which is covered by Section 3.10), and have paid all fees and assessments due and payable in connection therewith, except in each case where the failure to file such Report, or to pay such fees and assessments, has not had, and would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect. No Report of the Company SEC Documents”) have been filed or furnished made with the SEC on a timely basis. As SEC, as of the time it was filed with the SEC (or, if amended or superseded, then on the date of such filing): Report, contained any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary in order to make the statements made therein, in the light of the circumstances in which they were made, not misleading, except that information as of a later date (ibut before the date of this Agreement) each will be deemed to modify information as of an earlier date. Since January 1, 2003, as of their respective dates, all Reports of the Company made with the SEC Documents complied as to form in all material respects with the applicable requirements of the Securities Act, the Exchange Act and Act, the XxxxxxxxSxxxxxxx-Xxxxx Act (as the case may be) of 2002 and the applicable rules and regulations promulgated thereunder; and (ii) none of the Company SEC Documents contained any untrue statement of a material fact or omitted to state a 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 misleadingthereunder with respect thereto. No Company Subsidiary has been required to file any forms, reports or other documents with the SEC at any time since January 1, 2018. Since January 1, 2017 no executive officer of the Company has failed in any respect to make the certifications required of him or her under Section 302 or 906 of the XxxxxxxxSxxxxxxx-Xxxxx ActAct of 2002, and no enforcement action has been initiated against the Company by the SEC relating to disclosures contained in any Report of the Company made with the SEC.
(b) The Company has previously made available to Parent copies of (i) the consolidated balance sheet of the Company and its Subsidiaries as of December 31, 2004, and the related consolidated statements of operations, shareholders’ equity (deficit) and cash flows for each of the three years in the period ended December 31, 2004, as reported in the Company’s Annual Report on Form 10-K for the fiscal year ended December 31, 2004, including any amendments thereto filed with the SEC (collectively, the “Company 2004 10-K”), filed with the SEC under the Exchange Act, accompanied by the audit report and the report on internal controls over financial reporting, each by Ernst & Young LLP, the independent registered public accounting firm with respect to the Company for such periods (such balance sheets and statements, the “Audited Company Financial Statements”) and (ii) the unaudited consolidated balance sheet of the Company and its Subsidiaries as of March 31, 2005 and the related consolidated statements of operations, shareholders’ equity (deficit) and cash flows for the periods ended March 31, 2005 and 2004, as reported in the Company’s Quarterly Report on Form 10-Q for the quarterly period ended March 31, 2005, including any amendments (collectively, the “Company 10-Q”) (such balance sheet and statements, the “Unaudited Company Financial Statements” and, together with the Audited Company Financial Statements, the “Company Financial Statements”). The consolidated balance sheets of the Company (including the related notes, where applicable) included in the Company Financial Statements fairly present in all material respects the consolidated financial position of the Company and its Subsidiaries as of the dates thereof, and the other financial statements included in the Company Financial Statements (including the related notes, where applicable) fairly present in all material respects the results of the consolidated operations and changes in stockholders’ equity and cash flows of the Company and its Subsidiaries for the respective fiscal periods therein set forth, subject in the case of the Unaudited Company Financial Statements to normal year-end audit adjustments consistent with past experience; each of such statements (including any the related notes, where applicable) contained or incorporated by reference in the Company SEC Documents: (i) complied as to form complies in all material respects with the published rules and regulations of the SEC applicable with respect thereto; (ii) were prepared in accordance with GAAP applied on a consistent basis throughout the periods covered (except as may be indicated in the notes to such financial statements or, in the case of unaudited statements, as permitted by Form 10-Q or any successor form under the Exchange Act, and except that unaudited financial statements may not contain footnotes and are subject to normal and recurring year-end adjustments); (iii) fairly present, in all material respects, the financial position each of the Company and Financial Statements (including the Company’s consolidated Subsidiaries as of the respective dates thereof and the results of operations and consolidated cash flows of the Company and the Company’s consolidated Subsidiaries for the periods covered thereby subjectrelated notes, with respect to unaudited interim statements, to normal and recurring year-end adjustments and (ivwhere applicable) have has been prepared from, and are in accordance with, the books and records of the Company and the Company’s consolidated Subsidiaries in all material respects. No financial statements of any Person other than the Company and the Company’s consolidated Subsidiaries are required by GAAP to be included in the consolidated financial statements of the Company. The books and records of the Company and the Company Subsidiaries have been, and are being, maintained in all material respects in accordance with GAAP and any other consistently applied during the periods involved, except, in each case, as indicated in such statements or in the notes thereto. There is no applicable legal and accounting requirements. As rule, consensus or pronouncement that has been adopted as of the date of this AgreementAgreement by the SEC, PricewaterhouseCoopers LLP has the Financial Accounting Standards Board, the Emerging Issues Task Force or any similar body but is not resigned (or informed the Company that it intends to resign) or been dismissed in effect as independent public accountants of the Companydate of this Agreement that, if implemented, would reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect.
(c) The Company maintains, and at all times since June 25, 2017 has maintained, its Subsidiaries have designed and maintain a system of internal control controls over financial reporting (as defined in Rules 13a-15(f) and 15d-15(f) under of the Exchange Act) which is designed sufficient to provide reasonable assurance assurances regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with GAAP, and includes those policies and procedures that: reporting. The Company (i) pertain has designed and maintains disclosure controls and procedures (as defined in Rules 13a-15(e) and 15d-15(e) of the Exchange Act) to ensure that material information required to be disclosed by the Company in the reports that it files or submits under the Exchange Act is recorded, processed, summarized and reported within the time periods specified in the SEC’s rules and forms and is accumulated and communicated to the maintenance of records that in reasonable detail accurately Company’s management as appropriate to allow timely decisions regarding required disclosure and fairly reflect the transactions and dispositions of the assets of the Company and the Company Subsidiaries; (ii) provide reasonable assurance that transactions are recorded as necessary has disclosed, based on its most recent evaluation of such disclosure controls and procedures prior to permit preparation of financial statements in conformity with GAAP and that receipts and expenditures are being made only in accordance with authorizations of management and directors of the Company; and (iii) provide reasonable assurance regarding prevention or timely detection of unauthorized acquisitiondate hereof, use or disposition of the assets of the Company and the Company Subsidiaries that could have a material effect on the financial statements. The Company’s management has completed an assessment of the effectiveness of the Company’s system of internal control over financial reporting in compliance with the requirements of Section 404 of the Xxxxxxxx-Xxxxx Act for the fiscal year ended June 29, 2019, and such assessment concluded that such controls were effective and the Company’s independent registered accountant has issued an attestation report concluding that the Company maintained effective internal control over financial reporting as of June 29, 2019. Management of the Company has disclosed to the Company’s auditors and the audit committee of the Board of Directors of the Company Board (iA) any significant deficiencies or and material weaknesses in the design and or operation of internal controls over financial reporting that are reasonably likely to adversely affect in any material respect the Company’s ability to record, process, summarize and report financial information and (iiB) any fraud, whether or not material, that involves management or any other employees who have a significant role in the Company’s internal control controls over financial reporting, and each such deficiency, weakness and fraud so disclosed to auditors, if any, has been disclosed to Parent prior to the date hereof.
(d) Since January 1, 2018, (i) none of the Company or any Company Subsidiary nor, to the knowledge of the Company, any director or officer of the Company or any Company Subsidiary has received or otherwise had or obtained knowledge of any material complaint, allegation, assertion or claim, whether written or oral, regarding accounting, internal accounting controls or auditing practices, procedures, methodologies or methods of the Company or any Company Subsidiary or any material complaint, allegation, assertion or claim from employees of the Company or any Company Subsidiary regarding questionable accounting or auditing matters with respect to the Company or any Company Subsidiary, and (ii) to the knowledge of the Company, no attorney representing the Company or any Company Subsidiary, whether or not employed by the Company or any Company Subsidiary, has reported evidence of a violation of securities laws, breach of fiduciary duty or similar violation by the Company, any Company Subsidiary or any of their respective officers, directors, employees or agents to the Company Board or any committee thereof, or to the Chief Legal, Administrative & Compliance Officer or Chief Executive Officer of the Company.
(e) The Company maintains disclosure controls as required by Rule 13a-15 or 15d-15 under the Exchange Act. As of the date hereof, the Company is in compliance in all material respects with all current listing requirements of the Nasdaq Global Select Market (“Nasdaq”).
(f) Neither the Company nor any Company Subsidiary is a party to, or has a commitment to effect, enter into or create, any joint venture, or “off-balance sheet arrangement” (as defined in Item 303(a) of Regulation S-K under the Exchange Act).
(g) As of the date of this Agreement, there are no outstanding or unresolved comments in comment letters received from the SEC with respect to the Company SEC Documents, and none of the Company SEC Documents is, to the knowledge of the Company, the subject of ongoing SEC review.
(h) Neither the Company nor any Company Subsidiary has any liabilities of any nature or type, whether accrued, absolute, determined, contingent or otherwise and whether due or to become due, except for: (i) liabilities disclosed in the financial statements (including any related notes) contained in the Most Recent Company Balance Sheet; (ii) liabilities incurred in the ordinary course of business since the date of the Most Recent Company Balance Sheet; (iii) liabilities that do not constitute or would not reasonably be expected to result in a Company Material Adverse Effect; and (iv) liabilities and obligations incurred in connection with the transactions contemplated by this Agreement.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Sprint Corp), Agreement and Plan of Merger (Sprint Corp)
Reports; Financial Statements; Internal Controls. (a) All reports, schedules, forms, statements and other documents (including exhibits and all other information incorporated by reference therein) required to be filed or furnished by the Company Parent with the SEC under the Exchange Act or Securities Act since January 1, 2018 (the “Company Parent SEC Documents”) have been filed or furnished with the SEC on a timely basis. As of the time it was filed with the SEC (or, if amended or superseded, then on the date of such filing): (i) each of the Company Parent SEC Documents complied in all material respects with the applicable requirements of the Securities Act, the Exchange Act and the Xxxxxxxx-Xxxxx Act (as the case may be) and the applicable regulations promulgated thereunder; and (ii) none of the Company Parent SEC Documents contained any untrue statement of a material fact or omitted to state a 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. No Company Subsidiary has been required to file any forms, reports or other documents with the SEC at any time since January 1, 2018. Since January 1, 2017 2017, no executive officer of the Company Parent has failed in any respect to make the certifications required of him or her under Section 302 or 906 of the Xxxxxxxx-Xxxxx Act.
(b) The financial statements (including any related notes) contained or incorporated by reference in the Company Parent SEC Documents: (i) complied as to form in all material respects with the published rules and regulations of the SEC applicable thereto; (ii) were prepared in accordance with GAAP applied on a consistent basis throughout the periods covered (except as may be indicated in the notes to such financial statements or, in the case of unaudited statements, as permitted by Form 10-Q or any successor form under the Exchange Act, and except that unaudited financial statements may not contain footnotes and are subject to normal and recurring year-end adjustments); (iii) fairly present, in all material respects, the financial position of the Company Parent and the CompanyParent’s consolidated Subsidiaries as of the respective dates thereof and the results of operations and consolidated cash flows of the Company Parent and the CompanyParent’s consolidated Subsidiaries for the periods covered thereby subject, with respect to unaudited interim statements, to normal and recurring year-end adjustments and (iv) have been prepared from, and are in accordance with, the books and records of the Company Parent and the CompanyParent’s consolidated Subsidiaries in all material respects. No financial statements of any Person other than the Company Parent and the CompanyParent’s consolidated Subsidiaries are required by GAAP to be included in the consolidated financial statements of the CompanyParent. The books and records of the Company Parent and the Company Parent Subsidiaries have been, and are being, maintained in all material respects in accordance with GAAP and any other applicable legal and accounting requirements. As of the date of this Agreement, PricewaterhouseCoopers Ernst & Young LLP has not resigned (or informed the Company Parent that it intends to resign) or been dismissed as independent public accountants of the CompanyParent.
(c) The Company Parent maintains, and at all times since June 25October 29, 2017 has maintained, a system of internal control over financial reporting (as defined in Rules 13a-15(f) and 15d-15(f) under the Exchange Act) which is designed to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with GAAP, and includes those policies and procedures that: (i) pertain to the maintenance of records that in reasonable detail accurately and fairly reflect the transactions and dispositions of the assets of the Company Parent and the Company Parent Subsidiaries; (ii) provide reasonable assurance that transactions are recorded as necessary to permit preparation of financial statements in conformity with GAAP and that receipts and expenditures are being made only in accordance with authorizations of management and directors of the CompanyParent; and (iii) provide reasonable assurance regarding prevention or timely detection of unauthorized acquisition, use or disposition of the assets of the Company Parent and the Company Parent Subsidiaries that could have a material effect on the financial statements. The CompanyParent’s management has completed an assessment of the effectiveness of the CompanyParent’s system of internal control over financial reporting in compliance with the requirements of Section 404 of the Xxxxxxxx-Xxxxx Act for the fiscal year ended June 29November 2, 2019, and such assessment concluded that such controls were effective and the CompanyParent’s independent registered accountant has issued an attestation report concluding that the Company Parent maintained effective internal control over financial reporting as of June 29November 2, 2019. Management of the Company Parent has disclosed to the CompanyParent’s auditors and the audit committee of the Company Parent Board (i) any significant deficiencies or material weaknesses in the design and operation of internal controls over financial reporting and (ii) any fraud, whether or not material, that involves management or any other employees who have a significant role in the CompanyParent’s internal control over financial reporting, and each such deficiency, weakness and fraud so disclosed to auditors, if any, has been disclosed to Parent the Company prior to the date hereof.
(d) Since January 1, 2018, (i) none of the Company Parent or any Company Parent Subsidiary nor, to the knowledge of the CompanyParent, any director or officer of the Company Parent or any Company Parent Subsidiary has received or otherwise had or obtained knowledge of any material complaint, allegation, assertion or claim, whether written or oral, regarding accounting, internal accounting controls or auditing practices, procedures, methodologies or methods of the Company Parent or any Company Parent Subsidiary or any material complaint, allegation, assertion or claim from employees of the Company Parent or any Company Parent Subsidiary regarding questionable accounting or auditing matters with respect to the Company Parent or any Company Parent Subsidiary, and (ii) to the knowledge of the CompanyParent, no attorney representing the Company Parent or any Company Parent Subsidiary, whether or not employed by the Company Parent or any Company Parent Subsidiary, has reported evidence of a violation of securities laws, breach of fiduciary duty or similar violation by the CompanyParent, any Company Parent Subsidiary or any of their respective officers, directors, employees or agents to the Company Parent Board or any committee thereof, or to the Chief Legal, Administrative & Compliance Officer General Counsel or Chief Executive Officer of the CompanyParent.
(e) The Company Parent maintains disclosure controls as required by Rule 13a-15 or 15d-15 under the Exchange Act. As of the date hereof, the Company Parent is in compliance in all material respects with all current listing requirements of the Nasdaq Global Select Market (“Nasdaq”).
(f) Neither the Company Parent nor any Company Parent Subsidiary is a party to, or has a commitment to effect, enter into or create, any joint venture, or “off-balance sheet arrangement” (as defined in Item 303(a) of Regulation S-K under the Exchange Act).
(g) As of the date of this Agreement, there are no outstanding or unresolved comments in comment letters received from the SEC with respect to the Company Parent SEC Documents, and none of the Company Parent SEC Documents is, to the knowledge of the CompanyParent, the subject of ongoing SEC review.
(h) Neither the Company Parent nor any Company Parent Subsidiary has any liabilities of any nature or type, whether accrued, absolute, determined, contingent or otherwise and whether due or to become due, except for: (i) liabilities disclosed in the financial statements (including any related notes) contained in the Most Recent Company Parent Balance Sheet; (ii) liabilities incurred in the ordinary course of business since the date of the Most Recent Company Parent Balance Sheet; (iii) liabilities that do not constitute or would not reasonably be expected to result in a Company Parent Material Adverse Effect; and (iv) liabilities and obligations incurred in connection with the transactions contemplated by this Agreement.
Appears in 2 contracts
Samples: Merger Agreement (Analog Devices Inc), Merger Agreement (Maxim Integrated Products Inc)
Reports; Financial Statements; Internal Controls. (a) All reports, schedules, forms, statements and other documents (including exhibits and all other information incorporated by reference therein) required to be filed or furnished by the Company Parent with the SEC under the Exchange Act or Securities Act since January 1, 2018 (the “Company Parent SEC Documents”) have been filed or furnished with the SEC on a timely basis. As of the time it was filed with the SEC (or, with respect to clause (i) below, if amended or superseded, then on the date of such amended or superseding filing): (i) each of the Company Parent SEC Documents complied in all material respects with the applicable requirements of the Securities Act, the Exchange Act and the Xxxxxxxx-Xxxxx Act (as the case may be) and the applicable regulations promulgated thereunderthereunder and the listing requirements and corporate governance rules and regulations of Nasdaq, each as in effect on the date such Parent SEC Document was filed; and (ii) none of the Company Parent SEC Documents contained any untrue statement of a material fact or omitted to state a 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. No Company Subsidiary has been required to file any forms, reports or other documents with the SEC at any time since Since January 1, 2018. Since January 1, 2017 no executive officer of the Company Parent has failed in any respect to make the certifications required of him or her under Section 302 or 906 of the Xxxxxxxx-Xxxxx Act. Neither the Parent nor any of its executive officers has received notice from any Governmental Entity challenging or questioning the accuracy, completeness, form or manner of filing of such certifications.
(b) The financial statements (including any related notes) contained or incorporated by reference in the Company Parent SEC Documents: (i) complied as to form in all material respects with the published rules and regulations of the SEC applicable thereto; (ii) were prepared in accordance with GAAP applied on a consistent basis throughout the periods covered (except as may be indicated in the notes to such financial statements or, in the case of unaudited statements, as permitted by Form 10-Q or any successor form under the Exchange Act, and except that unaudited financial statements may not contain footnotes and are subject to normal and recurring year-end adjustments); (iii) fairly present, in all material respects, the financial position of the Company Parent and the CompanyParent’s consolidated Subsidiaries as of the respective dates thereof and the results of operations and consolidated cash flows of the Company Parent and the CompanyParent’s consolidated Subsidiaries for the periods covered thereby subject, with respect to unaudited interim statements, to normal and recurring year-end adjustments and (iv) have been prepared from, and are in accordance with, the books and records of the Company Parent and the CompanyParent’s consolidated Subsidiaries in all material respects. No financial statements of any Person other than the Company Parent and the CompanyParent’s consolidated Subsidiaries are required by GAAP to be included in the consolidated financial statements of the CompanyParent. The books and records of the Company Parent and the Company Parent Subsidiaries have been, and are being, maintained in all material respects in accordance with GAAP and any other applicable legal and accounting requirements. As of the date of this Agreement, PricewaterhouseCoopers Ernst & Young LLP has not resigned (or informed the Company Parent that it intends to resign) or been dismissed as independent public accountants of the CompanyParent.
(c) The Company Parent maintains, and at all times since June 25December 30, 2017 2018 has maintained, a system of internal control over financial reporting (as defined in Rules 13a-15(f) and 15d-15(f) under the Exchange Act) which is designed to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with GAAP, and includes those policies and procedures that: (i) pertain to the maintenance of records that in reasonable detail accurately and fairly reflect the transactions and dispositions of the assets of the Company Parent and the Company Parent Subsidiaries; (ii) provide reasonable assurance that transactions are recorded as necessary to permit preparation of financial statements in conformity with GAAP and that receipts and expenditures are being made only in accordance with authorizations of management and directors of the CompanyParent; and (iii) provide reasonable assurance regarding prevention or timely detection of unauthorized acquisition, use or disposition of the assets of the Company Parent and the Company Parent Subsidiaries that could have a material effect on the financial statements. The CompanyParent’s management has completed an assessment of the effectiveness of the CompanyParent’s system of internal control over financial reporting in compliance with the requirements of Section 404 of the Xxxxxxxx-Xxxxx Act for the fiscal year ended June 29December 28, 2019, and such assessment concluded that such controls were effective and the CompanyParent’s independent registered accountant has issued an attestation report concluding that the Company Parent maintained effective internal control over financial reporting as of June 29December 28, 2019. Management of the Company Parent has disclosed to the CompanyParent’s auditors and the audit committee of the Company Parent Board (ix) any significant deficiencies or material weaknesses in the design and operation of internal controls over financial reporting and (iiy) any fraud, whether or not material, that involves management or any other employees who have a significant role in the CompanyParent’s internal control over financial reporting, and each such deficiency, weakness and fraud so disclosed to auditors, if any, has been disclosed to Parent the Company prior to the date hereof.
(d) Since January 1, 2018, (i) none of the Company Parent or any Company Parent Subsidiary nor, to the knowledge of the CompanyParent, any director or officer of the Company Parent or any Company Parent Subsidiary has received or otherwise had or obtained knowledge of any material complaint, allegation, assertion or claim, whether written or oral, regarding accounting, internal accounting controls or auditing practices, procedures, methodologies or methods of the Company Parent or any Company Parent Subsidiary or any material complaint, allegation, assertion or claim from employees of the Company Parent or any Company Parent Subsidiary regarding questionable accounting or auditing matters with respect to the Company Parent or any Company Parent Subsidiary, and (ii) to the knowledge of the CompanyParent, no attorney representing the Company Parent or any Company Parent Subsidiary, whether or not employed by the Company Parent or any Company Parent Subsidiary, has reported evidence of a violation of securities laws, breach of fiduciary duty or similar violation by the CompanyParent, any Company Parent Subsidiary or any of their respective officers, directors, employees or agents to the Company Parent Board or any committee thereof, or to the Chief Legal, Administrative & Compliance Officer General Counsel or Chief Executive Officer of the CompanyParent.
(e) The Company Parent maintains disclosure controls as required by Rule 13a-15 or 15d-15 under the Exchange Act. As of the date hereof, the Company Parent is in compliance in all material respects with all current listing requirements of the Nasdaq Global Select Market (“Nasdaq”).
(f) Neither the Company Parent nor any Company Parent Subsidiary is a party to, or has a commitment to effect, enter into or create, any joint venture, or “off-balance sheet arrangement” (as defined in Item 303(a) of Regulation S-K under the Exchange Act).
(g) As of the date of this Agreement, there are no outstanding or unresolved comments in comment letters received from the SEC with respect to the Company Parent SEC Documents, and none of the Company Parent SEC Documents is, to the knowledge of the CompanyParent, the subject of ongoing SEC reviewreview or investigation.
(h) Neither the Company Parent nor any Company Parent Subsidiary has any liabilities of any nature or type, whether accrued, absolute, determined, contingent or otherwise and whether due or to become due, except for: (i) liabilities disclosed in the financial statements (including any related notes) contained in the Most Recent Company Parent Balance Sheet; (ii) liabilities incurred in the ordinary course of business since the date of the Most Recent Company Parent Balance Sheet; (iii) liabilities that do that, individually or in the aggregate, have not constitute constituted or resulted in and would not reasonably be expected to constitute or result in a Company Parent Material Adverse Effect; and (iv) liabilities and obligations incurred in connection with the transactions contemplated by this Agreement.
Appears in 2 contracts
Samples: Merger Agreement (Xilinx Inc), Merger Agreement (Advanced Micro Devices Inc)
Reports; Financial Statements; Internal Controls. (a) All reports, schedules, forms, statements and other documents (including exhibits and all other information incorporated by reference therein) required to be filed or furnished by the Company with the SEC under the Exchange Act or Securities Act since January 1, 2018 (the “Company SEC Documents”) have been filed or furnished with the SEC on a timely basis. As of the time it was filed with the SEC (or, with respect to clause (i) below, if amended or superseded, then on the date of such amended or superseding filing): (i) each of the Company SEC Documents complied in all material respects with the applicable requirements of the Securities Act, the Exchange Act and the Xxxxxxxx-Xxxxx Act (as the case may be) and the applicable regulations promulgated thereunderthereunder and the listing requirements and corporate governance rules and regulations of Nasdaq, each as in effect on the date such Company SEC Document was filed; and (ii) none of the Company SEC Documents contained any untrue statement of a material fact or omitted to state a 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. No Company Subsidiary has been required to file any forms, reports or other documents with the SEC at any time since January 1, 2018. Since January 1, 2017 2018 no executive officer of the Company has failed in any respect to make the certifications required of him or her under Section 302 or 906 of the Xxxxxxxx-Xxxxx Act. Neither the Company nor, to the knowledge of the Company, any of its executive officers has received notice from any Governmental Entity challenging or questioning the accuracy, completeness, form or manner of filing of such certifications.
(b) The financial statements (including any related notes) contained or incorporated by reference in the Company SEC Documents: (i) complied as to form in all material respects with the published rules and regulations of the SEC applicable thereto; (ii) were prepared in accordance with GAAP applied on a consistent basis throughout the periods covered (except as may be indicated in the notes to such financial statements or, in the case of unaudited statements, as permitted by Form 10-Q or any successor form under the Exchange Act, and except that unaudited financial statements may not contain footnotes and are subject to normal and recurring year-end adjustments); (iii) fairly present, in all material respects, the financial position of the Company and the Company’s consolidated Subsidiaries as of the respective dates thereof and the results of operations and consolidated cash flows of the Company and the Company’s consolidated Subsidiaries for the periods covered thereby subject, with respect to unaudited interim statements, to normal and recurring year-end adjustments adjustments; and (iv) have been prepared from, and are in accordance with, the books and records of the Company and the Company’s consolidated Subsidiaries in all material respects. No financial statements of any Person other than the Company and the Company’s consolidated Subsidiaries are required by GAAP to be included in the consolidated financial statements of the Company. The books and records of the Company and the Company Subsidiaries have been, and are being, maintained in all material respects in accordance with GAAP and any other applicable legal and accounting requirements. As of the date of this Agreement, PricewaterhouseCoopers Deloitte & Touche LLP has not resigned (or informed the Company that it intends to resign) or been dismissed as independent public accountants of the Company.
(c) The Company maintains, and at all times since June 25January 1, 2017 2018 has maintained, a system of internal control over financial reporting (as defined in Rules 13a-15(f) and 15d-15(f) under the Exchange Act) which is designed to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with GAAP, and includes those policies and procedures that: (i) pertain to the maintenance of records that in reasonable detail accurately and fairly reflect the transactions and dispositions of the assets of the Company and the Company Subsidiaries; (ii) provide reasonable assurance that transactions are recorded as necessary to permit preparation of financial statements in conformity with GAAP and that receipts and expenditures are being made only in accordance with authorizations of management and directors of the Company; and (iii) provide reasonable assurance regarding prevention or timely detection of unauthorized acquisition, use or disposition of the assets of the Company and the Company Subsidiaries that could have a material effect on the financial statements. The Company’s management has completed an assessment of the effectiveness of the Company’s system of internal control over financial reporting in compliance with the requirements of Section 404 of the Xxxxxxxx-Xxxxx Act for the fiscal year ended June 29December 31, 2019, and such assessment concluded that such controls were effective and the Company’s independent registered accountant has issued an attestation report concluding that the Company maintained effective internal control over financial reporting as of June 29December 31, 2019. Management of the Company has disclosed to the Company’s auditors and the audit committee of the Company Board (ix) any significant deficiencies or material weaknesses in the design and operation of internal controls over financial reporting and (iiy) any fraud, whether or not material, that involves management or any other employees who have a significant role in the Company’s internal control over financial reporting, and each such deficiency, weakness and fraud so disclosed to auditors, if any, has been disclosed to Parent prior to the date hereof.
(d) Since January 1, 2018, (i) none of the Company or any Company Subsidiary nor, to the knowledge of the Company, any director or officer of the Company or any Company Subsidiary has received or otherwise had or obtained knowledge of any material complaint, allegation, assertion or claim, whether written or oral, regarding accounting, internal accounting controls or auditing practices, procedures, methodologies or methods of the Company or any Company Subsidiary or any material complaint, allegation, assertion or claim from employees of the Company or any Company Subsidiary regarding questionable accounting or auditing matters with respect to the Company or any Company Subsidiary, and (ii) to the knowledge of the Company, no attorney representing the Company or any Company Subsidiary, whether or not employed by the Company or any Company Subsidiary, has reported evidence of a violation of securities laws, breach of fiduciary duty or similar violation by the Company, any Company Subsidiary or any of their respective officers, directors, employees or agents to the Company Board or any committee thereof, or to the Chief Legal, Administrative & Compliance Officer General Counsel or Chief Executive Officer of the Company.
(e) The Company maintains disclosure controls as required by Rule 13a-15 or 15d-15 under the Exchange Act. As of the date hereof, the Company is in compliance in all material respects with all current listing requirements of the Nasdaq Global Select Market (“Nasdaq”).
(f) Neither the Company nor any Company Subsidiary is a party to, or has a commitment to effect, enter into or create, any joint venture, or “off-balance sheet arrangement” (as defined in Item 303(a) of Regulation S-K under the Exchange Act).
(g) As of the date of this Agreement, there are no outstanding or unresolved comments in comment letters received from the SEC with respect to the Company SEC Documents, and none of the Company SEC Documents is, to the knowledge of the Company, the subject of ongoing SEC reviewreview or investigation.
(h) Neither the Company nor any Company Subsidiary has any liabilities of any nature or type, whether accrued, absolute, determined, contingent or otherwise and whether due or to become due, that would be required by GAAP to be reflected on a condensed consolidated balance sheet of the Company and its consolidated Company Subsidiaries, except for: (i) liabilities disclosed in the financial statements (including any related notes) contained in the Most Recent Company Balance Sheet; (ii) liabilities incurred in the ordinary course of business consistent with past practice since the date of the Most Recent Company Balance Sheet; (iii) liabilities that individually or in the aggregate, do not constitute or and would not reasonably be expected to constitute or result in a Company Material Adverse Effect; and (iv) liabilities and obligations incurred in connection with the transactions contemplated by this Agreement.
Appears in 2 contracts
Samples: Merger Agreement (Viasat Inc), Merger Agreement (RigNet, Inc.)
Reports; Financial Statements; Internal Controls. (a) All The Company and each of its Subsidiaries have timely filed all reports, registrations, schedules, forms, statements and other documents (including exhibits and all other information incorporated by reference therein) documents, together with any amendments required to be filed or furnished by the Company made with the SEC under the Exchange Act or Securities Act respect thereto (each, a “Report”), that they were required to file since January 1, 2018 2003 with (i) the “FCC, (ii) the SEC, (iii) any state or other federal regulatory authority (other than any taxing authority, which is covered by Section 3.10) and (iv) any foreign regulatory authority (other than any taxing authority, which is covered by Section 3.10), and have paid all fees and assessments due and payable in connection therewith, except in each case where the failure to file such Report, or to pay such fees and assessments, has not had, and would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect. No Report of the Company SEC Documents”) have been filed or furnished made with the SEC on a timely basis. As SEC, as of the time it was filed with the SEC (or, if amended or superseded, then on the date of such filing): Report, contained any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary in order to make the statements made therein, in the light of the circumstances in which they were made, not misleading, except that information as of a later date (ibut before the date of this Agreement) each will be deemed to modify information as of an earlier date. Since January 1, 2003, as of their respective dates, all Reports of the Company made with the SEC Documents complied as to form in all material respects with the applicable requirements of the Securities Act, the Exchange Act and Act, the Xxxxxxxx-Xxxxx Act (as the case may be) of 2002 and the applicable rules and regulations promulgated thereunder; and (ii) none of the Company SEC Documents contained any untrue statement of a material fact or omitted to state a 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 misleadingthereunder with respect thereto. No Company Subsidiary has been required to file any forms, reports or other documents with the SEC at any time since January 1, 2018. Since January 1, 2017 no executive officer of the Company has failed in any respect to make the certifications required of him or her under Section 302 or 906 of the Xxxxxxxx-Xxxxx ActAct of 2002, and no enforcement action has been initiated against the Company by the SEC relating to disclosures contained in any Report of the Company made with the SEC.
(b) The Company has previously made available to Parent copies of (i) the consolidated balance sheet of the Company and its Subsidiaries as of December 31, 2004, and the related consolidated statements of operations, shareholders’ equity (deficit) and cash flows for each of the three years in the period ended December 31, 2004, as reported in the Company’s Annual Report on Form 10-K for the fiscal year ended December 31, 2004, including any amendments thereto filed with the SEC (collectively, the “Company 2004 10-K”), filed with the SEC under the Exchange Act, accompanied by the audit report and the report on internal controls over financial reporting, each by Ernst & Young LLP, the independent registered public accounting firm with respect to the Company for such periods (such balance sheets and statements, the “Audited Company Financial Statements”) and (ii) the unaudited consolidated balance sheet of the Company and its Subsidiaries as of March 31, 2005 and the related consolidated statements of operations, shareholders’ equity (deficit) and cash flows for the periods ended March 31, 2005 and 2004, as reported in the Company’s Quarterly Report on Form 10-Q for the quarterly period ended March 31, 2005, including any amendments (collectively, the “Company 10-Q”) (such balance sheet and statements, the “Unaudited Company Financial Statements” and, together with the Audited Company Financial Statements, the “Company Financial Statements”). The consolidated balance sheets of the Company (including the related notes, where applicable) included in the Company Financial Statements fairly present in all material respects the consolidated financial position of the Company and its Subsidiaries as of the dates thereof, and the other financial statements included in the Company Financial Statements (including the related notes, where applicable) fairly present in all material respects the results of the consolidated operations and changes in stockholders’ equity and cash flows of the Company and its Subsidiaries for the respective fiscal periods therein set forth, subject in the case of the Unaudited Company Financial Statements to normal year-end audit adjustments consistent with past experience; each of such statements (including any the related notes, where applicable) contained or incorporated by reference in the Company SEC Documents: (i) complied as to form complies in all material respects with the published rules and regulations of the SEC applicable with respect thereto; (ii) were prepared in accordance with GAAP applied on a consistent basis throughout the periods covered (except as may be indicated in the notes to such financial statements or, in the case of unaudited statements, as permitted by Form 10-Q or any successor form under the Exchange Act, and except that unaudited financial statements may not contain footnotes and are subject to normal and recurring year-end adjustments); (iii) fairly present, in all material respects, the financial position each of the Company and Financial Statements (including the Company’s consolidated Subsidiaries as of the respective dates thereof and the results of operations and consolidated cash flows of the Company and the Company’s consolidated Subsidiaries for the periods covered thereby subjectrelated notes, with respect to unaudited interim statements, to normal and recurring year-end adjustments and (ivwhere applicable) have has been prepared from, and are in accordance with, the books and records of the Company and the Company’s consolidated Subsidiaries in all material respects. No financial statements of any Person other than the Company and the Company’s consolidated Subsidiaries are required by GAAP to be included in the consolidated financial statements of the Company. The books and records of the Company and the Company Subsidiaries have been, and are being, maintained in all material respects in accordance with GAAP and any other consistently applied during the periods involved, except, in each case, as indicated in such statements or in the notes thereto. There is no applicable legal and accounting requirements. As rule, consensus or pronouncement that has been adopted as of the date of this AgreementAgreement by the SEC, PricewaterhouseCoopers LLP has the Financial Accounting Standards Board, the Emerging Issues Task Force or any similar body but is not resigned (or informed the Company that it intends to resign) or been dismissed in effect as independent public accountants of the Companydate of this Agreement that, if implemented, would reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect.
(c) The Company maintains, and at all times since June 25, 2017 has maintained, its Subsidiaries have designed and maintain a system of internal control controls over financial reporting (as defined in Rules 13a-15(f) and 15d-15(f) under of the Exchange Act) which is designed sufficient to provide reasonable assurance assurances regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with GAAP, and includes those policies and procedures that: reporting. The Company (i) pertain has designed and maintains disclosure controls and procedures (as defined in Rules 13a-15(e) and 15d-15(e) of the Exchange Act) to ensure that material information required to be disclosed by the Company in the reports that it files or submits under the Exchange Act is recorded, processed, summarized and reported within the time periods specified in the SEC’s rules and forms and is accumulated and communicated to the maintenance of records that in reasonable detail accurately Company’s management as appropriate to allow timely decisions regarding required disclosure and fairly reflect the transactions and dispositions of the assets of the Company and the Company Subsidiaries; (ii) provide reasonable assurance that transactions are recorded as necessary has disclosed, based on its most recent evaluation of such disclosure controls and procedures prior to permit preparation of financial statements in conformity with GAAP and that receipts and expenditures are being made only in accordance with authorizations of management and directors of the Company; and (iii) provide reasonable assurance regarding prevention or timely detection of unauthorized acquisitiondate hereof, use or disposition of the assets of the Company and the Company Subsidiaries that could have a material effect on the financial statements. The Company’s management has completed an assessment of the effectiveness of the Company’s system of internal control over financial reporting in compliance with the requirements of Section 404 of the Xxxxxxxx-Xxxxx Act for the fiscal year ended June 29, 2019, and such assessment concluded that such controls were effective and the Company’s independent registered accountant has issued an attestation report concluding that the Company maintained effective internal control over financial reporting as of June 29, 2019. Management of the Company has disclosed to the Company’s auditors and the audit committee of the Board of Directors of the Company Board (iA) any significant deficiencies or and material weaknesses in the design and or operation of internal controls over financial reporting that are reasonably likely to adversely affect in any material respect the Company’s ability to record, process, summarize and report financial information and (iiB) any fraud, whether or not material, that involves management or any other employees who have a significant role in the Company’s internal control controls over financial reporting, and each such deficiency, weakness and fraud so disclosed to auditors, if any, has been disclosed to Parent prior to the date hereof.
(d) Since January 1, 2018, (i) none of the Company or any Company Subsidiary nor, to the knowledge of the Company, any director or officer of the Company or any Company Subsidiary has received or otherwise had or obtained knowledge of any material complaint, allegation, assertion or claim, whether written or oral, regarding accounting, internal accounting controls or auditing practices, procedures, methodologies or methods of the Company or any Company Subsidiary or any material complaint, allegation, assertion or claim from employees of the Company or any Company Subsidiary regarding questionable accounting or auditing matters with respect to the Company or any Company Subsidiary, and (ii) to the knowledge of the Company, no attorney representing the Company or any Company Subsidiary, whether or not employed by the Company or any Company Subsidiary, has reported evidence of a violation of securities laws, breach of fiduciary duty or similar violation by the Company, any Company Subsidiary or any of their respective officers, directors, employees or agents to the Company Board or any committee thereof, or to the Chief Legal, Administrative & Compliance Officer or Chief Executive Officer of the Company.
(e) The Company maintains disclosure controls as required by Rule 13a-15 or 15d-15 under the Exchange Act. As of the date hereof, the Company is in compliance in all material respects with all current listing requirements of the Nasdaq Global Select Market (“Nasdaq”).
(f) Neither the Company nor any Company Subsidiary is a party to, or has a commitment to effect, enter into or create, any joint venture, or “off-balance sheet arrangement” (as defined in Item 303(a) of Regulation S-K under the Exchange Act).
(g) As of the date of this Agreement, there are no outstanding or unresolved comments in comment letters received from the SEC with respect to the Company SEC Documents, and none of the Company SEC Documents is, to the knowledge of the Company, the subject of ongoing SEC review.
(h) Neither the Company nor any Company Subsidiary has any liabilities of any nature or type, whether accrued, absolute, determined, contingent or otherwise and whether due or to become due, except for: (i) liabilities disclosed in the financial statements (including any related notes) contained in the Most Recent Company Balance Sheet; (ii) liabilities incurred in the ordinary course of business since the date of the Most Recent Company Balance Sheet; (iii) liabilities that do not constitute or would not reasonably be expected to result in a Company Material Adverse Effect; and (iv) liabilities and obligations incurred in connection with the transactions contemplated by this Agreement.
Appears in 2 contracts
Samples: Merger Agreement (Us Unwired Inc), Merger Agreement (Us Unwired Inc)
Reports; Financial Statements; Internal Controls. (a) All reports, schedules, forms, statements and other documents (including exhibits and all other information incorporated by reference therein) required to be filed or furnished by the Company with the SEC under the Exchange Act or Securities Act since January 1, 2018 (the “Company SEC Documents”) have been filed or furnished with the SEC on a timely basis. As of the time it was filed with the SEC (or, with respect to clause (i) below, if amended or superseded, then on the date of such amended or superseding filing): (i) each of the Company SEC Documents complied in all material respects with the applicable requirements of the Securities Act, the Exchange Act and the Xxxxxxxx-Xxxxx Act (as the case may be) and the applicable regulations promulgated thereunderthereunder and the listing requirements and corporate governance rules and regulations of Nasdaq, each as in effect on the date such Company SEC Document was filed; and (ii) none of the Company SEC Documents contained any untrue statement of a material fact or omitted to state a 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. No Company Subsidiary has been required to file any forms, reports or other documents with the SEC at any time since January 1, 2018. Since January 1, 2017 2018 no executive officer of the Company has failed in any respect to make the certifications required of him or her under Section 302 or 906 of the Xxxxxxxx-Xxxxx Act. Neither the Company nor any of its executive officers has received notice from any Governmental Entity challenging or questioning the accuracy, completeness, form or manner of filing of such certifications.
(b) The financial statements (including any related notes) contained or incorporated by reference in the Company SEC Documents: (i) complied as to form in all material respects with the published rules and regulations of the SEC applicable thereto; (ii) were prepared in accordance with GAAP applied on a consistent basis throughout the periods covered (except as may be indicated in the notes to such financial statements or, in the case of unaudited statements, as permitted by Form 10-Q or any successor form under the Exchange Act, and except that unaudited financial statements may not contain footnotes and are subject to normal and recurring year-end adjustments); (iii) fairly present, in all material respects, the financial position of the Company and the Company’s consolidated Subsidiaries as of the respective dates thereof and the results of operations and consolidated cash flows of the Company and the Company’s consolidated Subsidiaries for the periods covered thereby subject, with respect to unaudited interim statements, to normal and recurring year-end adjustments and (iv) have been prepared from, and are in accordance with, the books and records of the Company and the Company’s consolidated Subsidiaries in all material respects. No financial statements of any Person other than the Company and the Company’s consolidated Subsidiaries are required by GAAP to be included in the consolidated financial statements of the Company. The books and records of the Company and the Company Subsidiaries have been, and are being, maintained in all material respects in accordance with GAAP and any other applicable legal and accounting requirements. As of the date of this Agreement, PricewaterhouseCoopers Ernst & Young LLP has not resigned (or informed the Company that it intends to resign) or been dismissed as independent public accountants of the Company.
(c) The Company maintains, and at all times since June 25April 1, 2017 2018 has maintained, a system of internal control over financial reporting (as defined in Rules 13a-15(f) and 15d-15(f) under the Exchange Act) which is designed to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with GAAP, and includes those policies and procedures that: (i) pertain to the maintenance of records that in reasonable detail accurately and fairly reflect the transactions and dispositions of the assets of the Company and the Company Subsidiaries; (ii) provide reasonable assurance that transactions are recorded as necessary to permit preparation of financial statements in conformity with GAAP and that receipts and expenditures are being made only in accordance with authorizations of management and directors of the Company; and (iii) provide reasonable assurance regarding prevention or timely detection of unauthorized acquisition, use or disposition of the assets of the Company and the Company Subsidiaries that could have a material effect on the financial statements. The Company’s management has completed an assessment of the effectiveness of the Company’s system of internal control over financial reporting in compliance with the requirements of Section 404 of the Xxxxxxxx-Xxxxx Act for the fiscal year ended June 29March 28, 20192020, and such assessment concluded that such controls were effective and the Company’s independent registered accountant has issued an attestation report concluding that the Company maintained effective internal control over financial reporting as of June 29March 28, 20192020. Management of the Company has disclosed to the Company’s auditors and the audit committee of the Company Board (ix) any significant deficiencies or material weaknesses in the design and operation of internal controls over financial reporting and (iiy) any fraud, whether or not material, that involves management or any other employees who have a significant role in the Company’s internal control over financial reporting, and each such deficiency, weakness and fraud so disclosed to auditors, if any, has been disclosed to Parent prior to the date hereof.
(d) Since January 1, 2018, (i) none of the Company or any Company Subsidiary nor, to the knowledge of the Company, any director or officer of the Company or any Company Subsidiary has received or otherwise had or obtained knowledge of any material complaint, allegation, assertion or claim, whether written or oral, regarding accounting, internal accounting controls or auditing practices, procedures, methodologies or methods of the Company or any Company Subsidiary or any material complaint, allegation, assertion or claim from employees of the Company or any Company Subsidiary regarding questionable accounting or auditing matters with respect to the Company or any Company Subsidiary, and (ii) to the knowledge of the Company, no attorney representing the Company or any Company Subsidiary, whether or not employed by the Company or any Company Subsidiary, has reported evidence of a violation of securities laws, breach of fiduciary duty or similar violation by the Company, any Company Subsidiary or any of their respective officers, directors, employees or agents to the Company Board or any committee thereof, or to the Chief Legal, Administrative & Compliance Officer General Counsel or Chief Executive Officer of the Company.
(e) The Company maintains disclosure controls as required by Rule 13a-15 or 15d-15 under the Exchange Act. As of the date hereof, the Company is in compliance in all material respects with all current listing requirements of the Nasdaq Global Select Market (“Nasdaq”).
(f) Neither the Company nor any Company Subsidiary is a party to, or has a commitment to effect, enter into or create, any joint venture, or “off-balance sheet arrangement” (as defined in Item 303(a) of Regulation S-K under the Exchange Act).
(g) As of the date of this Agreement, there are no outstanding or unresolved comments in comment letters received from the SEC with respect to the Company SEC Documents, and none of the Company SEC Documents is, to the knowledge of the Company, the subject of ongoing SEC reviewreview or investigation.
(h) Neither the Company nor any Company Subsidiary has any liabilities of any nature or type, whether accrued, absolute, determined, contingent or otherwise and whether due or to become due, except for: (i) liabilities disclosed in the financial statements (including any related notes) contained in the Most Recent Company Balance Sheet; (ii) liabilities incurred in the ordinary course of business since the date of the Most Recent Company Balance Sheet; (iii) liabilities that do that, individually or in the aggregate, have not constitute constituted or resulted in and would not reasonably be expected to constitute or result in a Company Material Adverse Effect; and (iv) liabilities and obligations incurred in connection with the transactions contemplated by this Agreement.
Appears in 2 contracts
Samples: Merger Agreement (Advanced Micro Devices Inc), Merger Agreement (Xilinx Inc)
Reports; Financial Statements; Internal Controls. (a) All The Common Stock is registered pursuant to Section 12(g) of the Exchange Act. Since January 1, 2003, the Company has filed all reports, schedules, forms, statements and other documents (including exhibits and all other information incorporated by reference therein) required to be filed or furnished by the Company it with the SEC under Commission pursuant to the reporting requirements of the Exchange Act Act, including pursuant to Sections 13, 14 or Securities Act since January 1, 2018 15(d) thereof (the foregoing materials and all exhibits included therein and financial statements and schedules thereto and documents (other than exhibits to such documents) incorporated by reference therein being collectively referred to herein as the “Company SEC DocumentsReports”) have been filed or furnished with the SEC ), on a timely basisbasis or has received a valid extension of such time of filing and has filed any such SEC Reports prior to the expiration of any such extension. All of the SEC Reports, other than the Company’s annual reports to shareholders, are available on the SEC’s website at xxx.xxx.xxx. As of the time it was filed with their respective dates, the SEC (or, if amended or superseded, then on the date of such filing): (i) each of the Company SEC Documents Reports complied in all material respects with the applicable requirements of the Securities Act, Act and the Exchange Act and the Xxxxxxxxrules and regulations of the Commission promulgated thereunder (except that the Company’s Form 10-Xxxxx Act (K for the year ended December 31, 2003 identifies as the case may be) and exhibits more “Material Contracts” than are required to be so identified in accordance with the applicable regulations promulgated thereunder; provisions of the Exchange Act), and (ii) none of the Company SEC Documents Reports, when filed, contained any untrue statement of a material fact or omitted to state a 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. No Company Subsidiary has been required to file any forms, reports or other documents with the SEC at any time since January 1, 2018. Since January 1, 2017 no executive officer of the Company has failed in any respect to make the certifications required of him or her under Section 302 or 906 of the Xxxxxxxx-Xxxxx Act.
(b) The audited consolidated financial statements of the Company and its Subsidiaries (including any related notesbalance sheet and statements of operations, cash flow and shareholders’ equity, together with the notes thereto) contained or incorporated by reference for the fiscal year ended December 31, 2003 set forth in the SEC Reports which contains the unqualified report of Ernst & Young LLP (the “Audited 2003 Financial Statements”) and the unaudited consolidated financial statements of the Company and its Subsidiaries (balance sheet and statements of operations) for the fiscal quarter ended September 30, 2004 set forth in the SEC Documents: Reports, the eleven-month period ended November 30, 2004 (ithe “Unaudited 2004 Financial Statements” and, together with the Audited 2003 Financial Statements, the “Initial Financial Statements”) complied as to form are complete and correct in all material respects with the published rules and regulations of the SEC applicable thereto; (ii) were have been prepared in accordance with GAAP applied on a consistent basis throughout the periods covered (except as may be indicated in the notes to such financial statements orand with each other, in the case of unaudited statements, as permitted by Form 10-Q or any successor form under the Exchange Act, and except that unaudited financial statements may the Unaudited 2004 Financial Statements do not in all cases contain footnotes and are subject to or normal and recurring year-end adjustments); (iii) . Except as may be otherwise specified in the Initial Financial Statements or the notes thereto, the Initial Financial Statements fairly present, present in all material respects, respects the financial position condition, operating results and cash flows of the Company and the Company’s consolidated its Subsidiaries as of the respective dates thereof and the results of operations and consolidated cash flows of the Company and the Company’s consolidated Subsidiaries for the respective periods covered thereby subjectindicated in accordance with GAAP, with respect to unaudited interim statements, to except that the Unaudited 2004 Financial Statements do not contain footnotes or normal and recurring year-end adjustments and adjustments.
(ivc) have been prepared fromThe accounts, and are in accordance with, the books and records of the Company and the Company’s consolidated Subsidiaries have recorded therein in all material respects. No financial statements respects the results of any Person other than the Company operations and the Company’s consolidated Subsidiaries are required by GAAP to be included in the consolidated financial statements of the Company. The books assets and records liabilities of the Company and the each of its Subsidiaries, required to be reflected under GAAP. The Company Subsidiaries have been, maintains a system of accounting and are being, maintained internal controls sufficient in all material respects in accordance with GAAP and any other applicable legal and accounting requirements. As of the date of this Agreement, PricewaterhouseCoopers LLP has not resigned (or informed the Company that it intends to resign) or been dismissed as independent public accountants of the Company.
(c) The Company maintains, and at all times since June 25, 2017 has maintained, a system of internal control over financial reporting (as defined in Rules 13a-15(f) and 15d-15(f) under the Exchange Act) which is designed to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with GAAP, and includes those policies and procedures that: assurances that (i) pertain to the maintenance of records that in reasonable detail accurately and fairly reflect the transactions and dispositions of the assets of the Company and the Company Subsidiariesare executed with management’s authorization; (ii) provide reasonable assurance that transactions are recorded as necessary to permit preparation of the financial statements in conformity with GAAP of the Company and that receipts and expenditures are being made to maintain accountability for the Company’s assets; (iii) access to the Company’s assets is permitted only in accordance with authorizations of management and directors of management’s authorization; (iv) the Company; and (iii) provide reasonable assurance regarding prevention or timely detection of unauthorized acquisition, use or disposition of the assets of the Company and the Company Subsidiaries that could have a material effect on the financial statements. The Company’s management has completed an assessment of the effectiveness reporting of the Company’s system of internal control over financial reporting in compliance assets is compared with the requirements of Section 404 of the Xxxxxxxx-Xxxxx Act for the fiscal year ended June 29existing assets at regular internals and appropriate action is taken with respect to any differences; and (v) accounts, 2019notes and other receivables and inventory are recorded accurately, and such assessment concluded that such controls were effective proper and adequate procedures are implemented to effect the Company’s independent registered accountant has issued an attestation report concluding that the Company maintained effective internal control over financial reporting as of June 29, 2019collection thereof on a current and timely basis. Management of the Company has disclosed to the Company’s auditors and the audit committee of the Company Board (i) any There are no significant deficiencies or material weaknesses in the design and or operation of internal controls over financial reporting that would reasonably be expected to adversely affect the Company’s ability to record, process, summarize and (ii) any report financial information, and there is no fraud, whether or not material, that involves management or any or, to the knowledge of the Company, other employees who have a significant role in the Company’s internal control over financial reporting, controls and each such deficiency, weakness and fraud so disclosed to auditors, if any, the Company has been disclosed to Parent prior provided to the date hereof.
(d) Since January 1, 2018, (i) none Purchaser copies of the Company or any Company Subsidiary nor, written materials relating to the knowledge of the Company, any director or officer of the Company or any Company Subsidiary has received or otherwise had or obtained knowledge of any material complaint, allegation, assertion or claim, whether written or oral, regarding accounting, internal accounting controls or auditing practices, procedures, methodologies or methods of the Company or any Company Subsidiary or any material complaint, allegation, assertion or claim from employees of the Company or any Company Subsidiary regarding questionable accounting or auditing matters with respect to the Company or any Company Subsidiary, and (ii) to the knowledge of the Company, no attorney representing the Company or any Company Subsidiary, whether or not employed by the Company or any Company Subsidiary, has reported evidence of a violation of securities laws, breach of fiduciary duty or similar violation by the Company, any Company Subsidiary or any of their respective officers, directors, employees or agents to the Company Board or any committee thereof, or to the Chief Legal, Administrative & Compliance Officer or Chief Executive Officer of the Companyforegoing.
(e) The Company maintains disclosure controls as required by Rule 13a-15 or 15d-15 under the Exchange Act. As of the date hereof, the Company is in compliance in all material respects with all current listing requirements of the Nasdaq Global Select Market (“Nasdaq”).
(f) Neither the Company nor any Company Subsidiary is a party to, or has a commitment to effect, enter into or create, any joint venture, or “off-balance sheet arrangement” (as defined in Item 303(a) of Regulation S-K under the Exchange Act).
(g) As of the date of this Agreement, there are no outstanding or unresolved comments in comment letters received from the SEC with respect to the Company SEC Documents, and none of the Company SEC Documents is, to the knowledge of the Company, the subject of ongoing SEC review.
(h) Neither the Company nor any Company Subsidiary has any liabilities of any nature or type, whether accrued, absolute, determined, contingent or otherwise and whether due or to become due, except for: (i) liabilities disclosed in the financial statements (including any related notes) contained in the Most Recent Company Balance Sheet; (ii) liabilities incurred in the ordinary course of business since the date of the Most Recent Company Balance Sheet; (iii) liabilities that do not constitute or would not reasonably be expected to result in a Company Material Adverse Effect; and (iv) liabilities and obligations incurred in connection with the transactions contemplated by this Agreement.
Appears in 2 contracts
Samples: Stock and Warrant Purchase Agreement (Healthaxis Inc), Stock and Warrant Purchase Agreement (Healthaxis Inc)
Reports; Financial Statements; Internal Controls. (a) All reports, schedules, forms, statements and other documents (including exhibits and all other information incorporated by reference therein) required to be filed or furnished by the Company Parent with the SEC under the Exchange Act or Securities Act since January 1February 11, 2018 2021 (the “Company Parent SEC Documents”) have been filed or furnished by or on behalf of Parent with the SEC on a timely basis. As of the time it was filed with the SEC (or, if amended or superseded, then on the date of such amended or superseding filing): (i) each of the Company Parent SEC Documents complied in all material respects with the applicable requirements of the Securities Act, the Exchange Act and the Xxxxxxxx-Xxxxx Act (as the case may be) and the applicable regulations promulgated thereunderthereunder and the listing requirements and corporate governance rules and regulations of Nasdaq, each as in effect on the date such Parent SEC Document was filed; and (ii) none of the Company Parent SEC Documents contained any untrue statement of a material fact or omitted to state a 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. No Company Subsidiary has been required to file any formsSince June 20, reports or other documents with the SEC at any time since January 12023, 2018. Since January 1, 2017 no executive officer of the Company Parent has failed in any respect to make the certifications required of him or her under Section 302 or 906 of the Xxxxxxxx-Xxxxx Act. Neither the Parent nor any of its executive officers has received notice from any Governmental Entity challenging or questioning the accuracy, completeness, form or manner of filing of such certifications.
(b) The financial statements (including any related notes) contained or incorporated by reference in the Company Parent SEC Documents: (i) complied as to form in all material respects with the published rules and regulations of the SEC applicable thereto; (ii) were prepared in accordance with GAAP applied on a consistent basis throughout the periods covered (except as may be indicated in the notes to such financial statements or, in the case of unaudited statements, as permitted by Form 10-Q or any successor form under the Exchange Actrules and regulations of the SEC applicable thereto, and except that unaudited financial statements may not contain footnotes and are subject to normal and recurring year-end adjustments); (iii) fairly present, in all material respects, the financial position of the Company Parent and the CompanyParent’s consolidated Subsidiaries as of the respective dates thereof and the results of operations and consolidated cash flows of the Company Parent and the CompanyParent’s consolidated Subsidiaries for the periods covered thereby subject, with respect to unaudited interim statements, to normal and recurring year-end adjustments adjustments; and (iv) have been prepared from, and are in accordance with, the books and records of the Company Parent and the CompanyParent’s consolidated Subsidiaries in all material respects. No financial statements of any Person other than the Company Parent and the CompanyParent’s consolidated Subsidiaries are required by GAAP to be included in the consolidated financial statements of the CompanyParent. The books and records of the Company Parent and the Company Parent Subsidiaries have been, and are being, maintained in all material respects in accordance with GAAP and any other applicable legal and accounting requirements. As of the date of this Agreement, PricewaterhouseCoopers Xxxxx Xxxxxxxx LLP has not resigned (or informed the Company Parent that it intends to resign) or been dismissed as independent public accountants of the CompanyParent.
(c) The Company Parent maintains, and at all times since June 2520, 2017 2023 has maintained, a system of internal control over financial reporting (as defined in Rules 13a-15(f) and 15d-15(f) under the Exchange Act) which is designed to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with GAAP, and includes those policies and procedures that: (i) pertain to the maintenance of records that in reasonable detail accurately and fairly reflect the transactions and dispositions of the assets of the Company Parent and the Company Parent Subsidiaries; (ii) provide reasonable assurance that transactions are recorded as necessary to permit preparation of financial statements in conformity with GAAP and that receipts and expenditures are being made only in accordance with authorizations of management and directors of the CompanyParent; and (iii) provide reasonable assurance regarding prevention or timely detection of unauthorized acquisition, use or disposition of the assets of the Company Parent and the Company Parent Subsidiaries that could have a material effect on the financial statements. The CompanyParent’s management has completed an assessment of the effectiveness of the CompanyParent’s system of internal control over financial reporting in compliance with the requirements of Section 404 of the Xxxxxxxx-Xxxxx Act for the its fiscal year ended June 29, 2019year, and such assessment concluded that such controls were effective and the CompanyParent’s independent registered accountant has issued an attestation report concluding that the Company Parent maintained effective internal control over financial reporting as of June 29, 2019reporting. Management of the Company Parent has disclosed to the CompanyParent’s auditors and the audit committee of the Company Parent Board (ix) any significant deficiencies or material weaknesses in the design and operation of internal controls over financial reporting since January 1, 2022 and (iiy) any fraud, whether or not material, that involves management or any other employees who have a significant role in the CompanyParent’s internal control over financial reporting, and each such deficiency, weakness and fraud so disclosed to auditors, if any, has been disclosed made available to Parent the Company prior to the date hereof.
(d) Since January 1, 20182022, (i) none of the Company Parent or any Company Parent Subsidiary nor, to the knowledge of the CompanyParent, any director or officer of the Company Parent or any Company Parent Subsidiary has received or otherwise had or obtained knowledge of any material complaint, allegation, assertion or claim, whether written or oral, regarding accounting, internal accounting controls or auditing practices, procedures, methodologies or methods of the Company Parent or any Company Parent Subsidiary or any material complaint, allegation, assertion or claim from employees of the Company Parent or any Company Parent Subsidiary regarding questionable accounting or auditing matters with respect to the Company Parent or any Company Parent Subsidiary, and (ii) to the knowledge of the CompanyParent, no attorney representing the Company Parent or any Company Parent Subsidiary, whether or not employed by the Company Parent or any Company Parent Subsidiary, has reported evidence of a violation of securities laws, breach of fiduciary duty or similar violation by the CompanyParent, any Company Parent Subsidiary or any of their respective officers, directors, employees or agents to the Company Parent Board or any committee thereof, or to the Chief Legal, Administrative & Compliance Officer General Counsel or Chief Executive Officer of the CompanyParent.
(e) The Company Parent maintains disclosure controls as required by Rule 13a-15 or 15d-15 under the Exchange Act. As of the date hereofof this Agreement, the Company Parent is in compliance in all material respects with all current listing requirements of the Nasdaq Global Select Market (“Nasdaq”).
(f) Neither the Company Parent nor any Company Parent Subsidiary is a party to, or has a commitment to effect, enter into or create, any joint venture, venture or “off-balance sheet arrangement” (as defined in Item 303(a) of Regulation S-K under the Exchange Act), in each case where the purpose or effect of such arrangement is to avoid disclosure of any material transaction involving, or material liabilities of, Parent or any Parent Subsidiary in the Parent SEC Documents (including any audited financial statements and unaudited interim financial statements of Xxxxxx included therein).
(g) As of the date of this Agreement, there are no outstanding or unresolved comments in comment letters received from the SEC with respect to the Company Parent SEC Documents, and none of the Company Parent SEC Documents is, to the knowledge of the CompanyParent, the subject of ongoing SEC reviewreview or investigation.
(h) Neither the Company Parent nor any Company Parent Subsidiary has any liabilities of any nature or type, type (whether accrued, absolute, determined, contingent or otherwise and whether due or to become due), that would be required by GAAP to be reflected on a condensed consolidated balance sheet of Parent and its consolidated Parent Subsidiaries, except for: (i) liabilities disclosed in the financial statements (including any related notes) contained in the Most Recent Company Parent Balance Sheet; (ii) liabilities incurred in the ordinary course of business in a manner consistent with past practice since the date of the Most Recent Company Parent Balance Sheet; (iii) liabilities that do that, individually or in the aggregate, have not constitute or had and would not reasonably be expected to result in have a Company Parent Material Adverse Effect; and (iv) liabilities and obligations incurred in connection with this Agreement, the preparation and negotiation of this Agreement or the transactions contemplated by this Agreement.
Appears in 2 contracts
Samples: Merger Agreement (Superior Drilling Products, Inc.), Merger Agreement (Drilling Tools International Corp)
Reports; Financial Statements; Internal Controls. (a) All reports, schedules, forms, statements and other documents (including exhibits and all other information incorporated by reference therein) required to be filed or furnished by the Company Parent with the SEC under the Exchange Act or Securities Act since January 1, 2018 2019 (the “Company Parent SEC Documents”) have been filed or furnished with the SEC on a timely basis. As of the time it was filed with the SEC (and, in the case of registration statements and proxy statements, on the dates of effectiveness and the dates of mailing, respectively) (or, with respect to clause (i) below, if amended or superseded, then on the date of such amended or superseding filing): ) (i) each of the Company Parent SEC Documents complied in all material respects with the applicable requirements of the Securities Act, the Exchange Act and the Xxxxxxxx-Xxxxx Act (as the case may be) and the applicable regulations promulgated thereunderthereunder and the listing requirements and corporate governance rules and regulations of the NYSE, each as in effect on the date such Parent SEC Document was filed (and, in the case of registration statements and proxy statements, on the dates of effectiveness and the dates of mailing, respectively, or, if amended prior to the date of this Agreement, the date of the filing of such amendment, with respect to the disclosures that are amended); and (ii) none of the Company Parent SEC Documents contained any untrue statement of a material fact or omitted to state a 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. No Company Subsidiary has been required to file any forms, reports or other documents with the SEC at any time since January 1, 2018. Since January 1, 2017 2019, no executive officer of the Company Parent has failed in any respect to make the certifications required of him or her under Section 302 or 906 of the Xxxxxxxx-Xxxxx ActAct with respect to the Company SEC Documents. Neither the Parent nor any of its executive officers has received notice from any Governmental Entity challenging or questioning the accuracy, completeness, form or manner of filing of such certifications.
(b) The financial statements (including any related notes) contained or incorporated by reference in the Company Parent SEC Documents: Documents (i) complied as to form in all material respects with the published rules and regulations of the SEC applicable thereto; (ii) were prepared in accordance with GAAP applied on a consistent basis throughout the periods covered (except as may be indicated in the notes to such financial statements or, in the case of unaudited statements, as permitted by Form 10-Q or any successor form under the Exchange Act, and except that unaudited financial statements may not contain footnotes and are subject to normal and recurring year-end adjustments); (iii) fairly present, in all material respects, the financial position of the Company Parent and the CompanyParent’s consolidated Subsidiaries as of the respective dates thereof and the results of operations and consolidated cash flows of the Company Parent and the CompanyParent’s consolidated Subsidiaries for the periods covered thereby subject, with respect to unaudited interim statements, to normal and recurring year-end adjustments and (iv) have been prepared from, and are in accordance with, from the books and records of the Company Parent and the CompanyParent’s consolidated Subsidiaries in all material respects. No financial statements of any Person other than the Company Parent and the CompanyParent’s consolidated Subsidiaries are required by GAAP to be included in the consolidated financial statements of the CompanyParent. The books and records of the Company Parent and the Company Parent Subsidiaries have been, and are being, maintained in all material respects in accordance with GAAP and any other applicable legal and accounting requirements. As of the date of this Agreementhereof, PricewaterhouseCoopers Ernst & Young LLP has not resigned (or informed the Company Parent that it intends to resign) or been dismissed as independent public accountants of the CompanyParent.
(c) The Company Parent maintains, and at all times since June 25December 31, 2017 2019 has maintained, a system of internal control over financial reporting (as defined in Rules 13a-15(f) and 15d-15(f15d15(f) under the Exchange Act) which is designed to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with GAAP, and includes those policies and procedures that: that (i) pertain to the maintenance of records that in reasonable detail accurately and fairly reflect the transactions and dispositions of the assets of the Company Parent and the Company Parent Subsidiaries; (ii) provide reasonable assurance that transactions are recorded as necessary to permit preparation of financial statements in conformity with GAAP and that receipts and expenditures are being made only in accordance with authorizations of management and directors of the CompanyParent; and (iii) provide reasonable assurance regarding prevention or timely detection of unauthorized acquisition, use or disposition of the assets of the Company Parent and the Company Parent Subsidiaries that could have a material effect on the financial statements. The Company’s management To the knowledge of Parent, Parent has completed an assessment not engaged in any material transactions that have not been properly recorded in the accounting records underlying its consolidated financial statements and there are no significant deficiencies or material weaknesses in the design or operation of the effectiveness of the Company’s system of Parents’ internal control over financial reporting. Parent has maintained the integrity of its financial reporting in compliance through proper access and change management procedures, along with the requirements customary reconciliations, reperformance and recalculations of Section 404 of the Xxxxxxxx-Xxxxx Act for the fiscal year ended June 29, 2019key formulas, and such assessment concluded that such controls were effective detailed reviews performed by competent and the Company’s independent registered accountant has issued an attestation report concluding that the Company maintained effective internal control over financial reporting as of June 29, 2019qualified individuals. Management of the Company Parent has disclosed to the CompanyParent’s auditors and the audit committee of the Company Parent Board (ix) any significant deficiencies or material weaknesses in the design and operation of internal controls over financial reporting and (iiy) any fraud, whether or not material, that involves management or any other employees who have a significant role in the CompanyParent’s internal control over financial reporting, and each such deficiency, weakness and fraud so disclosed to auditors, if any, has been disclosed to Parent prior to the date hereof.
(d) Since January 1, 20182019, (i) none of the Company Parent or any Company Parent Subsidiary nor, to the knowledge of the CompanyParent, any director or officer of the Company Parent or any Company Parent Subsidiary has received or otherwise had or obtained knowledge of any material complaint, allegation, assertion or claim, whether written or or, to the Parent’s knowledge, oral, regarding accounting, internal accounting controls or auditing practices, procedures, methodologies or methods of the Company Parent or any Company Parent Subsidiary or any material complaint, allegation, assertion or claim from employees of the Company Parent or any Company Parent Subsidiary regarding questionable accounting or auditing matters with respect to the Company Parent or any Company Parent Subsidiary, and (ii) to the knowledge of the CompanyParent, no attorney representing the Company Parent or any Company Parent Subsidiary, whether or not employed by the Company Parent or any Company Parent Subsidiary, has reported evidence of a violation of securities laws, breach of fiduciary duty or similar violation by the CompanyParent, any Company Parent Subsidiary or any of their respective officers, directors, employees or agents to the Company Parent Board or any committee thereof, or to the Chief Legal, Administrative & Compliance Officer General Counsel or Chief Executive Officer of the CompanyParent.
(e) The Company Parent maintains disclosure controls as required by Rule 13a-15 or 15d-15 under the Exchange Act. As of the date hereof, the Company Parent is in compliance in all material respects with all current listing requirements of the Nasdaq Global Select Market (“Nasdaq”)NYSE.
(f) Neither the Company Parent nor any Company Parent Subsidiary is a party to, or has a commitment to effect, enter into or create, any joint venture, or “off-balance sheet arrangement” (as defined in Item 303(a) of Regulation S-K under the Exchange Act).
(g) As of the date of this Agreement, there are no outstanding or unresolved comments in comment letters received from the SEC with respect to the Company Parent SEC Documents, and none of the Company Parent SEC Documents is, to the knowledge of the CompanyParent, the subject of ongoing SEC reviewreview or investigation.
(h) Neither the Company Parent nor any Company Parent Subsidiary has any liabilities of any nature or type, whether accrued, absolute, determined, contingent or otherwise and whether due or to become due, except for: for (i) liabilities disclosed in the financial statements (including any related notes) contained in the Most Recent Company Parent Balance SheetSheet or in the balance sheets included in the Parent SEC Documents filed prior to the date of this Agreement; (ii) liabilities incurred in the ordinary course of business since the date of the Most Recent Company Parent Balance Sheet; (iii) liabilities that do that, individually or in the aggregate, have not constitute constituted or would not reasonably be expected to result resulted in a Company Parent Material Adverse Effect; and (iv) liabilities and obligations incurred in connection with the transactions contemplated by this Agreement.
Appears in 1 contract
Samples: Merger Agreement (Lemonade, Inc.)
Reports; Financial Statements; Internal Controls. (a) All reports, schedules, forms, statements and other documents (including exhibits and all other information incorporated by reference therein) required to be filed or furnished by the Company with the SEC under the Exchange Act or Securities Act since January 1, 2018 2019 (the “Company SEC Documents”) have been filed or furnished with the SEC on a timely basis. As of the time it was filed with the SEC (and, in the case of registration statements and proxy statements, on the dates of effectiveness and the dates of mailing, respectively) (or, with respect to clause (i) below, if amended or superseded, then on the date of such amended or superseding filing): ) (i) each of the Company SEC Documents complied in all material respects with the applicable requirements of the Securities Act, the Exchange Act and the Xxxxxxxx-Xxxxx Act (as the case may be) and the applicable regulations promulgated thereunderthereunder and the listing requirements and corporate governance rules and regulations of Nasdaq, each as in effect on the date such Company SEC Document was filed (and, in the case of registration statements and proxy statements, on the dates of effectiveness and the dates of mailing, respectively, or, if amended prior to the date of this Agreement, the date of the filing of such amendment, with respect to the disclosures that are amended); and (ii) none of the Company SEC Documents contained any untrue statement of a material fact or omitted to state a 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. No Company Subsidiary has been required to file any forms, reports or other documents with the SEC at any time since January 1November 24, 20182020. Since January 1November 24, 2017 2020, no executive officer of the Company has failed in any respect to make the certifications required of him or her under Section 302 or 906 of the Xxxxxxxx-Xxxxx ActAct with respect to the Company SEC Documents. Neither the Company nor any of its executive officers has received notice from any Governmental Entity challenging or questioning the accuracy, completeness, form or manner of filing of such certifications.
(b) The financial statements (including any related notes) contained or incorporated by reference in the Company SEC Documents: Documents (i) complied as to form in all material respects with the published rules and regulations of the SEC applicable thereto; (ii) were prepared in accordance with GAAP applied on a consistent basis throughout the periods covered (except as may be indicated in the notes to such financial statements or, in the case of unaudited statements, as permitted by Form 10-Q or any successor form under the Exchange Act, and except that unaudited financial statements may not contain footnotes and are subject to normal and recurring year-end adjustments); (iii) fairly present, in all material respects, the financial position of the Company and the Company’s consolidated Subsidiaries as of the respective dates thereof and the results of operations and consolidated cash flows of the Company and the Company’s consolidated Subsidiaries for the periods covered thereby subject, with respect to unaudited interim statements, to normal and recurring year-end adjustments and (iv) have been prepared from, and are in accordance with, from the books and records of the Company and the Company’s consolidated Subsidiaries in all material respects. No financial statements of any Person other than the Company and the Company’s consolidated Subsidiaries are required by GAAP to be included in the consolidated financial statements of the Company. The books and records of the Company and the Company Subsidiaries have been, and are being, maintained in all material respects in accordance with GAAP and any other applicable legal and accounting requirements. As of the date of this Agreementhereof, PricewaterhouseCoopers Xxxx Xxxxx LLP has not resigned (or informed the Company that it intends to resign) or been dismissed as independent public accountants of the Company.
(c) The Company maintains, and at all times since June 25January 1, 2017 2019, has maintained, a system of internal control over financial reporting (as defined in Rules 13a-15(f) and 15d-15(f15d15(f) under the Exchange Act) which is designed to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with GAAP, and includes those policies and procedures that: that (i) pertain to the maintenance of records that in reasonable detail accurately and fairly reflect the transactions and dispositions of the assets of the Company and the Company Subsidiaries; (ii) provide reasonable assurance that transactions are recorded as necessary to permit preparation of financial statements in conformity with GAAP and that receipts and expenditures are being made only in accordance with authorizations of management and directors of the Company; and (iii) provide reasonable assurance regarding prevention or timely detection of unauthorized acquisition, use or disposition of the assets of the Company and the Company Subsidiaries that could have a material effect on the financial statements. The Company’s management has completed an assessment To the knowledge of the effectiveness Company, the Company has not engaged in any material transactions that have not been properly recorded in the accounting records underlying its consolidated financial statements and there are no significant deficiencies or material weaknesses in the design or operation of the Company’s system of internal control over financial reporting. The Company has maintained the integrity of its financial reporting in compliance through proper access and change management procedures, along with the requirements customary reconciliations, reperformance and recalculations of Section 404 of the Xxxxxxxx-Xxxxx Act for the fiscal year ended June 29, 2019key formulas, and such assessment concluded that such controls were effective detailed reviews performed by competent and the Company’s independent registered accountant has issued an attestation report concluding that the Company maintained effective internal control over financial reporting as of June 29, 2019qualified individuals. Management of the Company has disclosed to the Company’s auditors and the audit committee of the Company Board (ix) any significant deficiencies or material weaknesses in the design and operation of internal controls over financial reporting and (iiy) any fraud, whether or not material, that involves management or any other employees who have a significant role in the Company’s internal control over financial reporting, and each such deficiency, weakness and fraud so disclosed to auditors, if any, has been disclosed to Parent prior to the date hereof.
(d) Since January 1, 20182019, (i) none of the Company or any Company Subsidiary nor, to the knowledge of the Company, any director or officer of the Company or any Company Subsidiary has received or otherwise had or obtained knowledge of any material complaint, allegation, assertion or claim, whether written or or, to the Company’s knowledge, oral, regarding accounting, internal accounting controls or auditing practices, procedures, methodologies or methods of the Company or any Company Subsidiary or any material complaint, allegation, assertion or claim from employees of the Company or any Company Subsidiary regarding questionable accounting or auditing matters with respect to the Company or any Company Subsidiary, and (ii) to the knowledge of the Company, no attorney representing the Company or any Company Subsidiary, whether or not employed by the Company or any Company Subsidiary, has reported evidence of a violation of securities laws, breach of fiduciary duty or similar violation by the Company, any Company Subsidiary or any of their respective officers, directors, employees or agents to the Company Board or any committee thereof, or to the Chief Legal, Administrative & Compliance Officer General Counsel or Chief Executive Officer of the Company.
(e) The Company maintains disclosure controls as required by Rule 13a-15 or 15d-15 15d15 under the Exchange Act. As of the date hereof, the Company is in compliance in all material respects with all current listing requirements of the Nasdaq Global Select Market (“Nasdaq”).
(f) Neither the Company nor any Company Subsidiary is a party to, or has a commitment to effect, enter into or create, any joint venture, or “off-balance sheet arrangement” (as defined in Item 303(a) of Regulation S-K under the Exchange Act).
(g) As of the date of this Agreement, there are no outstanding or unresolved comments in comment letters received from the SEC with respect to the Company SEC Documents, and none of the Company SEC Documents is, to the knowledge of the Company, the subject of ongoing SEC reviewreview or investigation.
(h) Neither the Company nor any Company Subsidiary has any liabilities of any nature or type, whether accrued, absolute, determined, contingent or otherwise and whether due or to become due, except for: for (i) liabilities disclosed in the financial statements (including any related notes) contained in the Most Recent Company Balance Sheet; (ii) liabilities incurred in the ordinary course of business since the date of the Most Recent Company Balance Sheet; (iii) liabilities that do that, individually or in the aggregate, have not constitute constituted or would not reasonably be expected to result resulted in a Company Material Adverse Effect; and (iv) liabilities and obligations incurred in connection with the transactions contemplated by this Agreement.
Appears in 1 contract
Samples: Merger Agreement (Lemonade, Inc.)
Reports; Financial Statements; Internal Controls. (a) All reports, schedules, forms, statements and other documents (including exhibits and all other information incorporated by reference therein) required to be filed or furnished by the Company Parent with the SEC under the Exchange Act or Securities Act since January 1February 11, 2018 2021 (the “Company Parent SEC Documents”) have been filed or furnished by or on behalf of Parent with the SEC on a timely basis. As of the time it was filed with the SEC (or, if amended or superseded, then on the date of such amended or superseding filing): (i) each of the Company Parent SEC Documents complied in all material respects with the applicable requirements of the Securities Act, the Exchange Act and the Xxxxxxxx-Xxxxx Act (as the case may be) and the applicable regulations promulgated thereunderthereunder and the listing requirements and corporate governance rules and regulations of Nasdaq, each as in effect on the date such Parent SEC Document was filed; and (ii) none of the Company Parent SEC Documents contained any untrue statement of a material fact or omitted to state a 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. No Company Subsidiary has been required to file any formsSince February 11, reports or other documents with the SEC at any time since January 12021, 2018. Since January 1, 2017 no executive officer of the Company Parent has failed in any respect to make the certifications required of him or her under Section 302 or 906 of the Xxxxxxxx-Xxxxx Act. Neither the Parent nor any of its executive officers has received notice from any Governmental Entity challenging or questioning the accuracy, completeness, form or manner of filing of such certifications.
(b) The financial statements (including any related notes) contained or incorporated by reference in the Company Parent SEC Documents: (i) complied as to form in all material respects with the published rules and regulations of the SEC applicable thereto; (ii) were prepared in accordance with GAAP applied on a consistent basis throughout the periods covered (except as may be indicated in the notes to such financial statements or, in the case of unaudited statements, as permitted by Form 10-Q or any successor form under the Exchange Actrules and regulations of the SEC applicable thereto, and except that unaudited financial statements may not contain footnotes and are subject to normal and recurring year-end adjustments); (iii) fairly present, in all material respects, the financial position of the Company Parent and the CompanyParent’s consolidated Subsidiaries as of the respective dates thereof and the results of operations and consolidated cash flows of the Company Parent and the CompanyParent’s consolidated Subsidiaries for the periods covered thereby subject, with respect to unaudited interim statements, to normal and recurring year-end adjustments adjustments; and (iv) have been prepared from, and are in accordance with, the books and records of the Company Parent and the CompanyParent’s consolidated Subsidiaries in all material respects. No financial statements of any Person other than the Company Parent and the CompanyParent’s consolidated Subsidiaries are required by GAAP to be included in the consolidated financial statements of the CompanyParent. The books and records of the Company Parent and the Company Parent Subsidiaries have been, and are being, maintained in all material respects in accordance with GAAP and any other applicable legal and accounting requirements. As of the date of this Agreement, PricewaterhouseCoopers Xxxxx Xxxxxxxx LLP has not resigned (or informed the Company Parent that it intends to resign) or been dismissed as independent public accountants of the CompanyParent.
(c) The Company Parent maintains, and at all times since June 25February 11, 2017 2021 has maintained, a system of internal control over financial reporting (as defined in Rules 13a-15(f) and 15d-15(f) under the Exchange Act) which is designed to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with GAAP, and includes those policies and procedures that: (i) pertain to the maintenance of records that in reasonable detail accurately and fairly reflect the transactions and dispositions of the assets of the Company Parent and the Company Parent Subsidiaries; (ii) provide reasonable assurance that transactions are recorded as necessary to permit preparation of financial statements in conformity with GAAP and that receipts and expenditures are being made only in accordance with authorizations of management and directors of the CompanyParent; and (iii) provide reasonable assurance regarding prevention or timely detection of unauthorized acquisition, use or disposition of the assets of the Company Parent and the Company Parent Subsidiaries that could have a material effect on the financial statements. The CompanyParent’s management has completed an assessment of the effectiveness of the CompanyParent’s system of internal control over financial reporting in compliance with the requirements of Section 404 of the Xxxxxxxx-Xxxxx Act for the its most recent fiscal year ended June 29, 2019year, and such assessment concluded that such controls were effective and the CompanyParent’s independent registered accountant has issued an attestation report concluding that the Company Parent maintained effective internal control over financial reporting as of June 29, 2019reporting. Management of the Company Parent has disclosed to the CompanyParent’s auditors and the audit committee of the Company Parent Board (ix) any significant deficiencies or material weaknesses in the design and operation of internal controls over financial reporting since January 1, 2019 and (iiy) any fraud, whether or not material, that involves management or any other employees who have a significant role in the CompanyParent’s internal control over financial reporting, and each such deficiency, weakness and fraud so disclosed to auditors, if any, has been disclosed made available to Parent the Company prior to the date hereof.
(d) Since January 1, 20182019, (i) none of the Company Parent or any Company Parent Subsidiary nor, to the knowledge of the CompanyParent, any director or officer of the Company Parent or any Company Parent Subsidiary has received or otherwise had or obtained knowledge of any material complaint, allegation, assertion or claim, whether written or oral, regarding accounting, internal accounting controls or auditing practices, procedures, methodologies or methods of the Company Parent or any Company Parent Subsidiary or any material complaint, allegation, assertion or claim from employees of the Company Parent or any Company Parent Subsidiary regarding questionable accounting or auditing matters with respect to the Company Parent or any Company Parent Subsidiary, and (ii) to the knowledge of the CompanyParent, no attorney representing the Company Parent or any Company Parent Subsidiary, whether or not employed by the Company Parent or any Company Parent Subsidiary, has reported evidence of a violation of securities laws, breach of fiduciary duty or similar violation by the CompanyParent, any Company Parent Subsidiary or any of their respective officers, directors, employees or agents to the Company Parent Board or any committee thereof, or to the Chief Legal, Administrative & Compliance Officer General Counsel or Chief Executive Officer of the CompanyParent.
(e) The Company Parent maintains disclosure controls as required by Rule 13a-15 or 15d-15 under the Exchange Act. As of the date hereofof this Agreement, the Company Parent is in compliance in all material respects with all current listing requirements of the Nasdaq Global Select Market (“Nasdaq”).
(f) Neither the Company Parent nor any Company Parent Subsidiary is a party to, or has a commitment to effect, enter into or create, any joint venture, or “off-balance sheet arrangement” (as defined in Item 303(a) of Regulation S-K under the Exchange Act).
(g) As of the date of this Agreement, there are no outstanding or unresolved comments in comment letters received from the SEC with respect to the Company Parent SEC Documents, and none of the Company Parent SEC Documents is, to the knowledge of the CompanyParent, the subject of ongoing SEC reviewreview or investigation.
(h) Neither the Company Parent nor any Company Parent Subsidiary has any liabilities of any nature or type, type (whether accrued, absolute, determined, contingent or otherwise and whether due or to become due), that would be required by GAAP to be reflected on a condensed consolidated balance sheet of Parent and its consolidated Parent Subsidiaries, except for: (i) liabilities disclosed in the financial statements (including any related notes) contained in the Most Recent Company Parent Balance Sheet; (ii) liabilities incurred in the ordinary course of business in a manner consistent with past practice since the date of the Most Recent Company Parent Balance Sheet; (iii) liabilities that do that, individually or in the aggregate, have not constitute or had and would not reasonably be expected to result in have a Company Parent Material Adverse Effect; and (iv) liabilities and obligations incurred in connection with this Agreement, the preparation and negotiation of this Agreement or the transactions contemplated by this Agreement.
Appears in 1 contract
Samples: Merger Agreement (Bioventus Inc.)
Reports; Financial Statements; Internal Controls. (a) All The Company and each of the Subsidiaries have timely filed all reports, registrations, schedules, forms, statements and other documents (including exhibits and all other information incorporated by reference therein) documents, together with any amendments required to be filed or furnished by the Company made with the SEC under the Exchange Act or Securities Act respect thereto (each, a "REPORT"), that they were required to file since January 1, 2018 2003 with (i) the “FCC, (ii) the SEC, (iii) any state or other federal regulatory authority (other than any taxing authority, which is covered by SECTION 3.10) and (iv) any foreign regulatory authority (other than any taxing authority, which is covered by SECTION 3.10), and have paid all fees and assessments due and payable in connection therewith, except in each case where the failure to file such Report, or to pay such fees and assessments, has not had, and would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect. No Report of the Company SEC Documents”) have been filed or furnished made with the SEC on a timely basis. As SEC, as of the time it was filed with the SEC (or, if amended or superseded, then on the date of such filing): Report, contained any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary in order to make the statements made therein, in the light of the circumstances in which they were made, not misleading, except that information as of a later date (ibut before the date of this Agreement) each shall be deemed to modify information as of an earlier date. Since January 1, 2003, as of their respective dates, all Reports of the Company made with the SEC Documents complied as to form in all material respects with the applicable requirements of the Securities Act, the Exchange Act, the Sarbanes-Oxley Act and of 2002 (the Xxxxxxxx-Xxxxx Act (as the case may be"SOX ACT") and the applicable regulations promulgated thereunder; rules and (ii) none of the Company SEC Documents contained any untrue statement of a material fact or omitted to state a 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 misleadingregulatxxxx xxxxxxxxxr with respect thereto. No Company Subsidiary has been required to file any forms, reports or other documents with the SEC at any time since January 1, 2018. Since January 1, 2017 no executive officer of the Company has failed in any respect to make the certifications required of him or her under Section 302 or 906 of the Xxxxxxxx-Xxxxx SOX Act, and no enforcement action has been initiated against the Company by the SEC relating to disclosures contained in any Report of the Company made with the SEC.
(b) The Company has previously made available to Parent copies of (i) the consolidated balance sheet of the Company and the Subsidiaries as of December 31, 2004, and the related consolidated statements of operations, stockholders' equity (deficit) and cash flows for each of the two years in the period ended December 31, 2004, as reported in the Company's Annual Report on Form 10-K for the fiscal year ended December 31, 2004, including any amendments thereto filed with the SEC (collectively, the "COMPANY 2004 10-K"), filed with the SEC under the Exchange Act, accompanied by the audit report by Ernst & Young LLP, the independent registered public accounting firm with respect to the Company for such periods (such balance sheets and statements, the "AUDITED COMPANY FINANCIAL STATEMENTS") and (ii) the unaudited consolidated balance sheet of the Company and the Subsidiaries as of June 30, 2005 and March 31, 2005 and the related consolidated statements of operations, stockholders' equity (deficit) and cash flows for the five-month period ended June 30, 2005 and the six-month period ended June 30, 2004 and for the one-month period ended January 31, 2005, two-month period ended March 31, 2005 and three-month period ended March 31, 2004, as reported in the Company's Quarterly Reports on Form 10-Q for the quarterly periods ended June 30, 2005 and March 31, 2005, including any amendments (collectively, the "COMPANY 10-QS") (such balance sheets and statements, the "UNAUDITED COMPANY FINANCIAL STATEMENTS" and, together with the Audited Company Financial Statements, the "COMPANY FINANCIAL STATEMENTS"). The consolidated balance sheets of the Company (including the related notes, where applicable) included in the Company Financial Statements fairly present in all material respects the consolidated financial position of the Company and the Subsidiaries as of the dates thereof, and the other financial statements included in the Company Financial Statements (including the related notes, where applicable) fairly present in all material respects the results of the consolidated operations and changes in stockholders' equity and cash flows of the Company and the Subsidiaries for the respective fiscal periods therein set forth, subject in the case of the Unaudited Company Financial Statements to normal year-end audit adjustments that are consistent with past experience; each of such statements (including any the related notes, where applicable) contained or incorporated by reference in the Company SEC Documents: (i) complied as to form complies in all material respects with the published rules and regulations of the SEC applicable with respect thereto; (ii) were prepared in accordance with GAAP applied on a consistent basis throughout the periods covered (except as may be indicated in the notes to such financial statements or, in the case of unaudited statements, as permitted by Form 10-Q or any successor form under the Exchange Act, and except that unaudited financial statements may not contain footnotes and are subject to normal and recurring year-end adjustments); (iii) fairly present, in all material respects, the financial position each of the Company and Financial Statements (including the Company’s consolidated Subsidiaries as of the respective dates thereof and the results of operations and consolidated cash flows of the Company and the Company’s consolidated Subsidiaries for the periods covered thereby subjectrelated notes, with respect to unaudited interim statements, to normal and recurring year-end adjustments and (ivwhere applicable) have has been prepared from, and are in accordance with, the books and records of the Company and the Company’s consolidated Subsidiaries in all material respects. No financial statements of any Person other than the Company and the Company’s consolidated Subsidiaries are required by GAAP to be included in the consolidated financial statements of the Company. The books and records of the Company and the Company Subsidiaries have been, and are being, maintained in all material respects in accordance with GAAP and any other consistently applied during the periods involved, except, in each case, as indicated in such statements or in the notes thereto. There is no applicable legal and accounting requirements. As rule, consensus or pronouncement that has been adopted as of the date of this AgreementAgreement by the SEC, PricewaterhouseCoopers LLP has the Financial Accounting Standards Board, the Emerging Issues Task Force or any similar body but is not resigned (or informed the Company that it intends to resign) or been dismissed in effect as independent public accountants of the Companydate of this Agreement that, if implemented, would reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect.
(c) The Company maintains, and at all times since June 25, 2017 has maintained, the Subsidiaries have designed and maintain a system of internal control controls over financial reporting (as defined in Rules 13a-15(f) and 15d-15(f) under of the Exchange Act) which is designed sufficient to provide reasonable assurance assurances regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with GAAP, and includes those policies and procedures that: reporting. The Company (i) pertain has designed and maintains disclosure controls and procedures (as defined in Rules 13a-15(e) and 15d-15(e) of the Exchange Act) to ensure that material information required to be disclosed by the Company in the Reports that it files or submits under the Exchange Act is recorded, processed, summarized and reported within the time periods specified in the SEC's rules and forms and is accumulated and communicated to the maintenance of records that in reasonable detail accurately Company's management as appropriate to allow timely decisions regarding required disclosure and fairly reflect the transactions and dispositions of the assets of the Company and the Company Subsidiaries; (ii) provide reasonable assurance that transactions are recorded as necessary has disclosed, based on its most recent evaluation of such disclosure controls and procedures prior to permit preparation of financial statements in conformity with GAAP and that receipts and expenditures are being made only in accordance with authorizations of management and directors of the Company; and (iii) provide reasonable assurance regarding prevention or timely detection of unauthorized acquisitiondate hereof, use or disposition of the assets of the Company and the Company Subsidiaries that could have a material effect on the financial statements. The Company’s management has completed an assessment of the effectiveness of the Company’s system of internal control over financial reporting in compliance with the requirements of Section 404 of the Xxxxxxxx-Xxxxx Act for the fiscal year ended June 29, 2019, and such assessment concluded that such controls were effective and the Company’s independent registered accountant has issued an attestation report concluding that the Company maintained effective internal control over financial reporting as of June 29, 2019. Management of the Company has disclosed to the Company’s 's auditors and the audit committee of the Board of Directors of the Company Board (iA) any significant deficiencies or and material weaknesses in the design and or operation of internal controls over financial reporting that are reasonably likely to adversely affect in any material respect the Company's ability to record, process, summarize and report financial information and (iiB) any fraud, whether or not material, that involves management or any other employees who have a significant role in the Company’s 's internal control controls over financial reporting, and each such deficiency, weakness and fraud so disclosed to auditors, if any, has been disclosed to Parent prior to the date hereof.
(d) Since January 1, 2018, (i) none of the Company or any Company Subsidiary nor, to the knowledge of the Company, any director or officer of the Company or any Company Subsidiary has received or otherwise had or obtained knowledge of any material complaint, allegation, assertion or claim, whether written or oral, regarding accounting, internal accounting controls or auditing practices, procedures, methodologies or methods of the Company or any Company Subsidiary or any material complaint, allegation, assertion or claim from employees of the Company or any Company Subsidiary regarding questionable accounting or auditing matters with respect to the Company or any Company Subsidiary, and (ii) to the knowledge of the Company, no attorney representing the Company or any Company Subsidiary, whether or not employed by the Company or any Company Subsidiary, has reported evidence of a violation of securities laws, breach of fiduciary duty or similar violation by the Company, any Company Subsidiary or any of their respective officers, directors, employees or agents to the Company Board or any committee thereof, or to the Chief Legal, Administrative & Compliance Officer or Chief Executive Officer of the Company.
(e) The Company maintains disclosure controls as required by Rule 13a-15 or 15d-15 under the Exchange Act. As of the date hereof, the Company is in compliance in all material respects with all current listing requirements of the Nasdaq Global Select Market (“Nasdaq”).
(f) Neither the Company nor any Company Subsidiary is a party to, or has a commitment to effect, enter into or create, any joint venture, or “off-balance sheet arrangement” (as defined in Item 303(a) of Regulation S-K under the Exchange Act).
(g) As of the date of this Agreement, there are no outstanding or unresolved comments in comment letters received from the SEC with respect to the Company SEC Documents, and none of the Company SEC Documents is, to the knowledge of the Company, the subject of ongoing SEC review.
(h) Neither the Company nor any Company Subsidiary has any liabilities of any nature or type, whether accrued, absolute, determined, contingent or otherwise and whether due or to become due, except for: (i) liabilities disclosed in the financial statements (including any related notes) contained in the Most Recent Company Balance Sheet; (ii) liabilities incurred in the ordinary course of business since the date of the Most Recent Company Balance Sheet; (iii) liabilities that do not constitute or would not reasonably be expected to result in a Company Material Adverse Effect; and (iv) liabilities and obligations incurred in connection with the transactions contemplated by this Agreement.
Appears in 1 contract
Samples: Merger Agreement (Iwo Holdings Inc)
Reports; Financial Statements; Internal Controls. (a) All The Company and each of the Subsidiaries have timely filed all reports, registrations, schedules, forms, statements and other documents (including exhibits and all other information incorporated by reference therein) documents, together with any amendments required to be filed or furnished by the Company made with the SEC under the Exchange Act or Securities Act respect thereto (each, a “Report”), that they were required to file since January 1, 2018 2003 with (i) the “FCC, (ii) the SEC, (iii) any state or other federal regulatory authority (other than any taxing authority, which is covered by Section 3.10) and (iv) any foreign regulatory authority (other than any taxing authority, which is covered by Section 3.10), and have paid all fees and assessments due and payable in connection therewith, except in each case where the failure to file such Report, or to pay such fees and assessments, has not had, and would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect. No Report of the Company SEC Documents”) have been filed or furnished made with the SEC on a timely basis. As SEC, as of the time it was filed with the SEC (or, if amended or superseded, then on the date of such filing): Report, contained any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary in order to make the statements made therein, in the light of the circumstances in which they were made, not misleading, except that information as of a later date (ibut before the date of this Agreement) each shall be deemed to modify information as of an earlier date. Since January 1, 2003, as of their respective dates, all Reports of the Company made with the SEC Documents complied as to form in all material respects with the applicable requirements of the Securities Act, the Exchange Act and Act, the Xxxxxxxx-Xxxxx Act of 2002 (as the case may be“SOX Act”) and the applicable rules and regulations promulgated thereunder; and (ii) none of the Company SEC Documents contained any untrue statement of a material fact or omitted to state a 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 misleadingthereunder with respect thereto. No Company Subsidiary has been required to file any forms, reports or other documents with the SEC at any time since January 1, 2018. Since January 1, 2017 no executive officer of the Company has failed in any respect to make the certifications required of him or her under Section 302 or 906 of the Xxxxxxxx-Xxxxx SOX Act, and no enforcement action has been initiated against the Company by the SEC relating to disclosures contained in any Report of the Company made with the SEC.
(b) The Company has previously made available to Parent copies of (i) the consolidated balance sheet of the Company and the Subsidiaries as of December 31, 2005, and the related consolidated statements of operations, stockholders’ equity and cash flows for each of the two years in the period ended December 31, 2005, as reported in the Company’s Annual Report on Form 10-K for the fiscal year ended December 31, 2005, including any amendments thereto filed with the SEC (collectively, the “Company 2005 10-K”), filed with the SEC under the Exchange Act, accompanied by the audit report by PricewaterhouseCoopers LLP, the independent registered public accounting firm with respect to the Company for such periods (such balance sheets and statements, the “Company Financial Statements”). The consolidated balance sheets of the Company (including the related notes, where applicable) included in the Company Financial Statements fairly present in all material respects the consolidated financial position of the Company and the Subsidiaries as of the dates thereof, and the other financial statements included in the Company Financial Statements (including the related notes, where applicable) fairly present in all material respects the consolidated results of the operations and changes in stockholders’ equity and cash flows of the Company and the Subsidiaries for the respective fiscal periods therein set forth; each of such statements (including any the related notes, where applicable) contained or incorporated by reference in the Company SEC Documents: (i) complied as to form complies in all material respects with the published rules and regulations of the SEC applicable with respect thereto; (ii) were prepared in accordance with GAAP applied on a consistent basis throughout the periods covered (except as may be indicated in the notes to such financial statements or, in the case of unaudited statements, as permitted by Form 10-Q or any successor form under the Exchange Act, and except that unaudited financial statements may not contain footnotes and are subject to normal and recurring year-end adjustments); (iii) fairly present, in all material respects, the financial position each of the Company and Financial Statements (including the Company’s consolidated Subsidiaries as of the respective dates thereof and the results of operations and consolidated cash flows of the Company and the Company’s consolidated Subsidiaries for the periods covered thereby subjectrelated notes, with respect to unaudited interim statements, to normal and recurring year-end adjustments and (ivwhere applicable) have has been prepared from, and are in accordance with, the books and records of the Company and the Company’s consolidated Subsidiaries in all material respects. No financial statements of any Person other than the Company and the Company’s consolidated Subsidiaries are required by GAAP to be included in the consolidated financial statements of the Company. The books and records of the Company and the Company Subsidiaries have been, and are being, maintained in all material respects in accordance with GAAP and any other consistently applied during the periods involved, except, in each case, as indicated in such statements or in the notes thereto. There is no applicable legal and accounting requirements. As rule, consensus or pronouncement that has been adopted as of the date of this AgreementAgreement by the SEC, PricewaterhouseCoopers LLP has the Financial Accounting Standards Board, the Emerging Issues Task Force or any similar body but is not resigned (or informed the Company that it intends to resign) or been dismissed in effect as independent public accountants of the Companydate of this Agreement that, if implemented, would reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect.
(c) The Company maintains, and at all times since June 25, 2017 has maintained, the Subsidiaries have designed and maintain a system of internal control controls over financial reporting (as defined in Rules 13a-15(f) and 15d-15(f) under of the Exchange Act) which is designed sufficient to provide reasonable assurance assurances regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with GAAP, and includes those policies and procedures that: reporting. The Company (i) pertain has designed and maintains disclosure controls and procedures (as defined in Rules 13a-15(e) and 15d-15(e) of the Exchange Act) to ensure that material information required to be disclosed by the Company in the Reports that it files or submits under the Exchange Act is recorded, processed, summarized and reported within the time periods specified in the SEC’s rules and forms and is accumulated and communicated to the maintenance of records that in reasonable detail accurately Company’s management as appropriate to allow timely decisions regarding required disclosure and fairly reflect the transactions and dispositions of the assets of the Company and the Company Subsidiaries; (ii) provide reasonable assurance that transactions are recorded as necessary to permit preparation has disclosed, based on its most recent evaluation of financial statements in conformity with GAAP and that receipts and expenditures are being made only in accordance with authorizations of management and directors of the Company; and (iii) provide reasonable assurance regarding prevention or timely detection of unauthorized acquisition, use or disposition of the assets of the Company and the Company Subsidiaries that could have a material effect on the financial statements. The Company’s management has completed an assessment of the effectiveness of the Company’s system of its internal control over financial reporting in compliance with prior to the requirements of Section 404 of the Xxxxxxxx-Xxxxx Act for the fiscal year ended June 29date hereof, 2019, and such assessment concluded that such controls were effective and the Company’s independent registered accountant has issued an attestation report concluding that the Company maintained effective internal control over financial reporting as of June 29, 2019. Management of the Company has disclosed to the Company’s auditors and the audit committee of the Board of Directors of the Company Board (iA) any significant deficiencies or and material weaknesses in the design and or operation of internal controls over financial reporting that are reasonably likely to adversely affect in any material respect the Company’s ability to record, process, summarize and report financial information and (iiB) any fraud, whether or not material, that involves management or any other employees who have a significant role in the Company’s internal control controls over financial reporting, and each such deficiency, weakness and fraud so disclosed to auditors, if any, has been disclosed to Parent prior to the date hereof.
(d) Since January 1, 2018, (i) none of the Company or any Company Subsidiary nor, to the knowledge of the Company, any director or officer of the Company or any Company Subsidiary has received or otherwise had or obtained knowledge of any material complaint, allegation, assertion or claim, whether written or oral, regarding accounting, internal accounting controls or auditing practices, procedures, methodologies or methods of the Company or any Company Subsidiary or any material complaint, allegation, assertion or claim from employees of the Company or any Company Subsidiary regarding questionable accounting or auditing matters with respect to the Company or any Company Subsidiary, and (ii) to the knowledge of the Company, no attorney representing the Company or any Company Subsidiary, whether or not employed by the Company or any Company Subsidiary, has reported evidence of a violation of securities laws, breach of fiduciary duty or similar violation by the Company, any Company Subsidiary or any of their respective officers, directors, employees or agents to the Company Board or any committee thereof, or to the Chief Legal, Administrative & Compliance Officer or Chief Executive Officer of the Company.
(e) The Company maintains disclosure controls as required by Rule 13a-15 or 15d-15 under the Exchange Act. As of the date hereof, the Company is in compliance in all material respects with all current listing requirements of the Nasdaq Global Select Market (“Nasdaq”).
(f) Neither the Company nor any Company Subsidiary is a party to, or has a commitment to effect, enter into or create, any joint venture, or “off-balance sheet arrangement” (as defined in Item 303(a) of Regulation S-K under the Exchange Act).
(g) As of the date of this Agreement, there are no outstanding or unresolved comments in comment letters received from the SEC with respect to the Company SEC Documents, and none of the Company SEC Documents is, to the knowledge of the Company, the subject of ongoing SEC review.
(h) Neither the Company nor any Company Subsidiary has any liabilities of any nature or type, whether accrued, absolute, determined, contingent or otherwise and whether due or to become due, except for: (i) liabilities disclosed in the financial statements (including any related notes) contained in the Most Recent Company Balance Sheet; (ii) liabilities incurred in the ordinary course of business since the date of the Most Recent Company Balance Sheet; (iii) liabilities that do not constitute or would not reasonably be expected to result in a Company Material Adverse Effect; and (iv) liabilities and obligations incurred in connection with the transactions contemplated by this Agreement.
Appears in 1 contract
Samples: Merger Agreement (Ubiquitel Inc)
Reports; Financial Statements; Internal Controls. (a) All The Common Stock is registered pursuant to Section 12(g) of the Exchange Act. Since January 1, 2003, the Company has filed all reports, schedules, forms, statements and other documents (including exhibits and all other information incorporated by reference therein) required to be filed or furnished by the Company it with the SEC under Commission pursuant to the reporting requirements of the Exchange Act Act, including pursuant to Sections 13, 14 or Securities Act since January 1, 2018 15(d) thereof (the foregoing materials and all exhibits included therein and financial statements and schedules thereto and documents (other than exhibits to such documents) incorporated by reference therein being collectively referred to herein as the “Company SEC DocumentsReports”) have been filed or furnished with the SEC ), on a timely basisbasis or has received a valid extension of such time of filing and has filed any such SEC Reports prior to the expiration of any such extension. All of the SEC Reports, other than the Company’s annual reports to shareholders, are available on the SEC’s website at wxx.xxx.xxx. As of the time it was filed with their respective dates, the SEC (or, if amended or superseded, then on the date of such filing): (i) each of the Company SEC Documents Reports complied in all material respects with the applicable requirements of the Securities Act, Act and the Exchange Act and the Xxxxxxxxrules and regulations of the Commission promulgated thereunder (except that the Company’s Form 10-Xxxxx Act (K for the year ended December 31, 2003 identifies as the case may be) and exhibits more “Material Contracts” than are required to be so identified in accordance with the applicable regulations promulgated thereunder; provisions of the Exchange Act), and (ii) none of the Company SEC Documents Reports, when filed, contained any untrue statement of a material fact or omitted to state a 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. No Company Subsidiary has been required to file any forms, reports or other documents with the SEC at any time since January 1, 2018. Since January 1, 2017 no executive officer of the Company has failed in any respect to make the certifications required of him or her under Section 302 or 906 of the Xxxxxxxx-Xxxxx Act.
(b) The audited consolidated financial statements of the Company and its Subsidiaries (including any related notesbalance sheet and statements of operations, cash flow and shareholders’ equity, together with the notes thereto) contained or incorporated by reference for the fiscal year ended December 31, 2003 set forth in the SEC Reports which contains the unqualified report of Ernst & Young LLP (the “Audited 2003 Financial Statements”) and the unaudited consolidated financial statements of the Company and its Subsidiaries (balance sheet and statements of operations) for the fiscal quarter ended September 30, 2004 set forth in the SEC Documents: Reports, the eleven-month period ended November 30, 2004 (ithe “Unaudited 2004 Financial Statements” and, together with the Audited 2003 Financial Statements, the “Initial Financial Statements”) complied as to form are complete and correct in all material respects with the published rules and regulations of the SEC applicable thereto; (ii) were have been prepared in accordance with GAAP applied on a consistent basis throughout the periods covered (except as may be indicated in the notes to such financial statements orand with each other, in the case of unaudited statements, as permitted by Form 10-Q or any successor form under the Exchange Act, and except that unaudited financial statements may the Unaudited 2004 Financial Statements do not in all cases contain footnotes and are subject to or normal and recurring year-end adjustments); (iii) . Except as may be otherwise specified in the Initial Financial Statements or the notes thereto, the Initial Financial Statements fairly present, present in all material respects, respects the financial position condition, operating results and cash flows of the Company and the Company’s consolidated its Subsidiaries as of the respective dates thereof and the results of operations and consolidated cash flows of the Company and the Company’s consolidated Subsidiaries for the respective periods covered thereby subjectindicated in accordance with GAAP, with respect to unaudited interim statements, to except that the Unaudited 2004 Financial Statements do not contain footnotes or normal and recurring year-end adjustments and adjustments.
(ivc) have been prepared fromThe accounts, and are in accordance with, the books and records of the Company and the Company’s consolidated Subsidiaries have recorded therein in all material respects. No financial statements respects the results of any Person other than the Company operations and the Company’s consolidated Subsidiaries are required by GAAP to be included in the consolidated financial statements of the Company. The books assets and records liabilities of the Company and the each of its Subsidiaries, required to be reflected under GAAP. The Company Subsidiaries have been, maintains a system of accounting and are being, maintained internal controls sufficient in all material respects in accordance with GAAP and any other applicable legal and accounting requirements. As of the date of this Agreement, PricewaterhouseCoopers LLP has not resigned (or informed the Company that it intends to resign) or been dismissed as independent public accountants of the Company.
(c) The Company maintains, and at all times since June 25, 2017 has maintained, a system of internal control over financial reporting (as defined in Rules 13a-15(f) and 15d-15(f) under the Exchange Act) which is designed to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with GAAP, and includes those policies and procedures that: assurances that (i) pertain to the maintenance of records that in reasonable detail accurately and fairly reflect the transactions and dispositions of the assets of the Company and the Company Subsidiariesare executed with management’s authorization; (ii) provide reasonable assurance that transactions are recorded as necessary to permit preparation of the financial statements in conformity with GAAP of the Company and that receipts and expenditures are being made to maintain accountability for the Company’s assets; (iii) access to the Company’s assets is permitted only in accordance with authorizations of management and directors of management’s authorization; (iv) the Company; and (iii) provide reasonable assurance regarding prevention or timely detection of unauthorized acquisition, use or disposition of the assets of the Company and the Company Subsidiaries that could have a material effect on the financial statements. The Company’s management has completed an assessment of the effectiveness reporting of the Company’s system of internal control over financial reporting in compliance assets is compared with the requirements of Section 404 of the Xxxxxxxx-Xxxxx Act for the fiscal year ended June 29existing assets at regular internals and appropriate action is taken with respect to any differences; and (v) accounts, 2019notes and other receivables and inventory are recorded accurately, and such assessment concluded that such controls were effective proper and adequate procedures are implemented to effect the Company’s independent registered accountant has issued an attestation report concluding that the Company maintained effective internal control over financial reporting as of June 29, 2019collection thereof on a current and timely basis. Management of the Company has disclosed to the Company’s auditors and the audit committee of the Company Board (i) any There are no significant deficiencies or material weaknesses in the design and or operation of internal controls over financial reporting that would reasonably be expected to adversely affect the Company’s ability to record, process, summarize and (ii) any report financial information, and there is no fraud, whether or not material, that involves management or any or, to the knowledge of the Company, other employees who have a significant role in the Company’s internal control over financial reporting, controls and each such deficiency, weakness and fraud so disclosed to auditors, if any, the Company has been disclosed to Parent prior provided to the date hereof.
(d) Since January 1, 2018, (i) none Purchaser copies of the Company or any Company Subsidiary nor, written materials relating to the knowledge of the Company, any director or officer of the Company or any Company Subsidiary has received or otherwise had or obtained knowledge of any material complaint, allegation, assertion or claim, whether written or oral, regarding accounting, internal accounting controls or auditing practices, procedures, methodologies or methods of the Company or any Company Subsidiary or any material complaint, allegation, assertion or claim from employees of the Company or any Company Subsidiary regarding questionable accounting or auditing matters with respect to the Company or any Company Subsidiary, and (ii) to the knowledge of the Company, no attorney representing the Company or any Company Subsidiary, whether or not employed by the Company or any Company Subsidiary, has reported evidence of a violation of securities laws, breach of fiduciary duty or similar violation by the Company, any Company Subsidiary or any of their respective officers, directors, employees or agents to the Company Board or any committee thereof, or to the Chief Legal, Administrative & Compliance Officer or Chief Executive Officer of the Companyforegoing.
(e) The Company maintains disclosure controls as required by Rule 13a-15 or 15d-15 under the Exchange Act. As of the date hereof, the Company is in compliance in all material respects with all current listing requirements of the Nasdaq Global Select Market (“Nasdaq”).
(f) Neither the Company nor any Company Subsidiary is a party to, or has a commitment to effect, enter into or create, any joint venture, or “off-balance sheet arrangement” (as defined in Item 303(a) of Regulation S-K under the Exchange Act).
(g) As of the date of this Agreement, there are no outstanding or unresolved comments in comment letters received from the SEC with respect to the Company SEC Documents, and none of the Company SEC Documents is, to the knowledge of the Company, the subject of ongoing SEC review.
(h) Neither the Company nor any Company Subsidiary has any liabilities of any nature or type, whether accrued, absolute, determined, contingent or otherwise and whether due or to become due, except for: (i) liabilities disclosed in the financial statements (including any related notes) contained in the Most Recent Company Balance Sheet; (ii) liabilities incurred in the ordinary course of business since the date of the Most Recent Company Balance Sheet; (iii) liabilities that do not constitute or would not reasonably be expected to result in a Company Material Adverse Effect; and (iv) liabilities and obligations incurred in connection with the transactions contemplated by this Agreement.
Appears in 1 contract
Samples: Stock and Warrant Purchase Agreement (Tak Sharad Kumar)
Reports; Financial Statements; Internal Controls. (a) All reports, schedules, forms, statements and other documents (including exhibits and all other information incorporated by reference therein) required to be filed or furnished by the Company Parent with the SEC under the Exchange Act or Securities Act since January 1, 2018 2019 (the “Company Parent SEC Documents”) have been filed or furnished with the SEC on a timely basis. As of the time it was filed with the SEC (and, in the case of registration statements and proxy statements, on the dates of effectiveness and the dates of mailing, respectively) (or, with respect to clause (i) below, if amended or superseded, then on the date of such amended or superseding filing): ) (i) each of the Company Parent SEC Documents complied in all material respects with the applicable requirements of the Securities Act, the Exchange Act and the Xxxxxxxx-Xxxxx Act (as the case may be) and the applicable regulations promulgated thereunderthereunder and the listing requirements and corporate governance rules and regulations of the NYSE, each as in effect on the date such Parent SEC Document was filed (and, in the case of registration statements and proxy statements, on the dates of effectiveness and the dates of mailing, respectively, or, if amended prior to the date of this Agreement, the date of the filing of such amendment, with respect to the disclosures that are amended); and (ii) none of the Company Parent SEC Documents contained any untrue statement of a material fact or omitted to state a 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. No Company Subsidiary has been required to file any forms, reports or other documents with the SEC at any time since January 1, 2018. Since January 1, 2017 2019, no executive officer of the Company Parent has failed in any respect to make the certifications required of him or her under Section 302 or 906 of the Xxxxxxxx-Xxxxx ActAct with respect to the Company SEC Documents. Neither the Parent nor any of its executive officers has received notice from any Governmental Entity challenging or questioning the accuracy, completeness, form or manner of filing of such certifications.
(b) The financial statements (including any related notes) contained or incorporated by reference in the Company Parent SEC Documents: Documents (i) complied as to form in all material respects with the published rules and regulations of the SEC applicable thereto; (ii) were prepared in accordance with GAAP applied on a consistent basis throughout the periods covered (except as may be indicated in the notes to such financial statements or, in the case of unaudited statements, as permitted by Form 10-Q or any successor form under the Exchange Act, and except that unaudited financial statements may not contain footnotes and are subject to normal and recurring year-end adjustments); (iii) fairly present, in all material respects, the financial position of the Company Parent and the CompanyParent’s consolidated Subsidiaries as of the respective dates thereof and the results of operations and consolidated cash flows of the Company Parent and the CompanyParent’s consolidated Subsidiaries for the periods covered thereby subject, with respect to unaudited interim statements, to normal and recurring year-end adjustments and (iv) have been prepared from, and are in accordance with, from the books and records of the Company Parent and the CompanyParent’s consolidated Subsidiaries in all material respects. No financial statements of any Person other than the Company Parent and the CompanyParent’s consolidated Subsidiaries are required by GAAP to be included in the consolidated financial statements of the CompanyParent. The books and records of the Company Parent and the Company Parent Subsidiaries have been, and are being, maintained in all material respects in accordance with GAAP and any other applicable legal and accounting requirements. As of the date of this Agreementhereof, PricewaterhouseCoopers Ernst & Young LLP has not resigned (or informed the Company Parent that it intends to resign) or been dismissed as independent public accountants of the CompanyParent.
(c) The Company Parent maintains, and at all times since June 25December 31, 2017 2019 has maintained, a system of internal control over financial reporting (as defined in Rules 13a-15(f) and 15d-15(f) under the Exchange Act) which is designed to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with GAAP, and includes those policies and procedures that: that (i) pertain to the maintenance of records that in reasonable detail accurately and fairly reflect the transactions and dispositions of the assets of the Company Parent and the Company Parent Subsidiaries; (ii) provide reasonable assurance that transactions are recorded as necessary to permit preparation of financial statements in conformity with GAAP and that receipts and expenditures are being made only in accordance with authorizations of management and directors of the CompanyParent; and (iii) provide reasonable assurance regarding prevention or timely detection of unauthorized acquisition, use or disposition of the assets of the Company Parent and the Company Parent Subsidiaries that could have a material effect on the financial statements. The Company’s management To the knowledge of Parent, Parent has completed an assessment not engaged in any material transactions that have not been properly recorded in the accounting records underlying its consolidated financial statements and there are no significant deficiencies or material weaknesses in the design or operation of the effectiveness of the Company’s system of Parents’ internal control over financial reporting. Parent has maintained the integrity of its financial reporting in compliance through proper access and change management procedures, along with the requirements customary reconciliations, reperformance and recalculations of Section 404 of the Xxxxxxxx-Xxxxx Act for the fiscal year ended June 29, 2019key formulas, and such assessment concluded that such controls were effective detailed reviews performed by competent and the Company’s independent registered accountant has issued an attestation report concluding that the Company maintained effective internal control over financial reporting as of June 29, 2019qualified individuals. Management of the Company Parent has disclosed to the CompanyParent’s auditors and the audit committee of the Company Parent Board (ix) any significant deficiencies or material weaknesses in the design and operation of internal controls over financial reporting and (iiy) any fraud, whether or not material, that involves management or any other employees who have a significant role in the CompanyParent’s internal control over financial reporting, and each such deficiency, weakness and fraud so disclosed to auditors, if any, has been disclosed to Parent prior to the date hereof.
(d) Since January 1, 20182019, (i) none of the Company Parent or any Company Parent Subsidiary nor, to the knowledge of the CompanyParent, any director or officer of the Company Parent or any Company Parent Subsidiary has received or otherwise had or obtained knowledge of any material complaint, allegation, assertion or claim, whether written or or, to the Parent’s knowledge, oral, regarding accounting, internal accounting controls or auditing practices, procedures, methodologies or methods of the Company Parent or any Company Parent Subsidiary or any material complaint, allegation, assertion or claim from employees of the Company Parent or any Company Parent Subsidiary regarding questionable accounting or auditing matters with respect to the Company Parent or any Company Parent Subsidiary, and (ii) to the knowledge of the CompanyParent, no attorney representing the Company Parent or any Company Parent Subsidiary, whether or not employed by the Company Parent or any Company Parent Subsidiary, has reported evidence of a violation of securities laws, breach of fiduciary duty or similar violation by the CompanyParent, any Company Parent Subsidiary or any of their respective officers, directors, employees or agents to the Company Parent Board or any committee thereof, or to the Chief Legal, Administrative & Compliance Officer General Counsel or Chief Executive Officer of the CompanyParent.
(e) The Company Parent maintains disclosure controls as required by Rule 13a-15 or 15d-15 under the Exchange Act. As of the date hereof, the Company Parent is in compliance in all material respects with all current listing requirements of the Nasdaq Global Select Market (“Nasdaq”)NYSE.
(f) Neither the Company Parent nor any Company Parent Subsidiary is a party to, or has a commitment to effect, enter into or create, any joint venture, or “off-balance sheet arrangement” (as defined in Item 303(a) of Regulation S-K under the Exchange Act).
(g) As of the date of this Agreement, there are no outstanding or unresolved comments in comment letters received from the SEC with respect to the Company Parent SEC Documents, and none of the Company Parent SEC Documents is, to the knowledge of the CompanyParent, the subject of ongoing SEC reviewreview or investigation.
(h) Neither the Company Parent nor any Company Parent Subsidiary has any liabilities of any nature or type, whether accrued, absolute, determined, contingent or otherwise and whether due or to become due, except for: for (i) liabilities disclosed in the financial statements (including any related notes) contained in the Most Recent Company Parent Balance SheetSheet or in the balance sheets included in the Parent SEC Documents filed prior to the date of this Agreement; (ii) liabilities incurred in the ordinary course of business since the date of the Most Recent Company Parent Balance Sheet; (iii) liabilities that do that, individually or in the aggregate, have not constitute constituted or would not reasonably be expected to result resulted in a Company Parent Material Adverse Effect; and (iv) liabilities and obligations incurred in connection with the transactions contemplated by this Agreement.
Appears in 1 contract
Samples: Merger Agreement (Metromile, Inc.)
Reports; Financial Statements; Internal Controls. (a) All reports, schedules, forms, statements and other documents (including exhibits and all other information incorporated by reference therein) required to be filed or furnished by the Company with the SEC under the Exchange Act or Securities Act since January 1, 2018 2019 (the “Company SEC Documents”) have been filed or furnished with the SEC on a timely basis. As of the time it was filed with the SEC (and, in the case of registration statements and proxy statements, on the dates of effectiveness and the dates of mailing, respectively) (or, with respect to clause (i) below, if amended or superseded, then on the date of such amended or superseding filing): ) (i) each of the Company SEC Documents complied in all material respects with the applicable requirements of the Securities Act, the Exchange Act and the Xxxxxxxx-Xxxxx Act (as the case may be) and the applicable regulations promulgated thereunderthereunder and the listing requirements and corporate governance rules and regulations of Nasdaq, each as in effect on the date such Company SEC Document was filed (and, in the case of registration statements and proxy statements, on the dates of effectiveness and the dates of mailing, respectively, or, if amended prior to the date of this Agreement, the date of the filing of such amendment, with respect to the disclosures that are amended); and (ii) none of the Company SEC Documents contained any untrue statement of a material fact or omitted to state a 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. No Company Subsidiary has been required to file any forms, reports or other documents with the SEC at any time since January 1November 24, 20182020. Since January 1November 24, 2017 2020, no executive officer of the Company has failed in any respect to make the certifications required of him or her under Section 302 or 906 of the Xxxxxxxx-Xxxxx ActAct with respect to the Company SEC Documents. Neither the Company nor any of its executive officers has received notice from any Governmental Entity challenging or questioning the accuracy, completeness, form or manner of filing of such certifications.
(b) The financial statements (including any related notes) contained or incorporated by reference in the Company SEC Documents: Documents (i) complied as to form in all material respects with the published rules and regulations of the SEC applicable thereto; (ii) were prepared in accordance with GAAP applied on a consistent basis throughout the periods covered (except as may be indicated in the notes to such financial statements or, in the case of unaudited statements, as permitted by Form 10-Q or any successor form under the Exchange Act, and except that unaudited financial statements may not contain footnotes and are subject to normal and recurring year-end adjustments); (iii) fairly present, in all material respects, the financial position of the Company and the Company’s consolidated Subsidiaries as of the respective dates thereof and the results of operations and consolidated cash flows of the Company and the Company’s consolidated Subsidiaries for the periods covered thereby subject, with respect to unaudited interim statements, to normal and recurring year-end adjustments and (iv) have been prepared from, and are in accordance with, from the books and records of the Company and the Company’s consolidated Subsidiaries in all material respects. No financial statements of any Person other than the Company and the Company’s consolidated Subsidiaries are required by GAAP to be included in the consolidated financial statements of the Company. The books and records of the Company and the Company Subsidiaries have been, and are being, maintained in all material respects in accordance with GAAP and any other applicable legal and accounting requirements. As of the date of this Agreementhereof, PricewaterhouseCoopers Xxxx Xxxxx LLP has not resigned (or informed the Company that it intends to resign) or been dismissed as independent public accountants of the Company.
(c) The Company maintains, and at all times since June 25January 1, 2017 2019, has maintained, a system of internal control over financial reporting (as defined in Rules 13a-15(f) and 15d-15(f) under the Exchange Act) which is designed to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with GAAP, and includes those policies and procedures that: that (i) pertain to the maintenance of records that in reasonable detail accurately and fairly reflect the transactions and dispositions of the assets of the Company and the Company Subsidiaries; (ii) provide reasonable assurance that transactions are recorded as necessary to permit preparation of financial statements in conformity with GAAP and that receipts and expenditures are being made only in accordance with authorizations of management and directors of the Company; and (iii) provide reasonable assurance regarding prevention or timely detection of unauthorized acquisition, use or disposition of the assets of the Company and the Company Subsidiaries that could have a material effect on the financial statements. The Company’s management has completed an assessment To the knowledge of the effectiveness Company, the Company has not engaged in any material transactions that have not been properly recorded in the accounting records underlying its consolidated financial statements and there are no significant deficiencies or material weaknesses in the design or operation of the Company’s system of internal control over financial reporting. The Company has maintained the integrity of its financial reporting in compliance through proper access and change management procedures, along with the requirements customary reconciliations, reperformance and recalculations of Section 404 of the Xxxxxxxx-Xxxxx Act for the fiscal year ended June 29, 2019key formulas, and such assessment concluded that such controls were effective detailed reviews performed by competent and the Company’s independent registered accountant has issued an attestation report concluding that the Company maintained effective internal control over financial reporting as of June 29, 2019qualified individuals. Management of the Company has disclosed to the Company’s auditors and the audit committee of the Company Board (ix) any significant deficiencies or material weaknesses in the design and operation of internal controls over financial reporting and (iiy) any fraud, whether or not material, that involves management or any other employees who have a significant role in the Company’s internal control over financial reporting, and each such deficiency, weakness and fraud so disclosed to auditors, if any, has been disclosed to Parent prior to the date hereof.
(d) Since January 1, 20182019, (i) none of the Company or any Company Subsidiary nor, to the knowledge of the Company, any director or officer of the Company or any Company Subsidiary has received or otherwise had or obtained knowledge of any material complaint, allegation, assertion or claim, whether written or or, to the Company’s knowledge, oral, regarding accounting, internal accounting controls or auditing practices, procedures, methodologies or methods of the Company or any Company Subsidiary or any material complaint, allegation, assertion or claim from employees of the Company or any Company Subsidiary regarding questionable accounting or auditing matters with respect to the Company or any Company Subsidiary, and (ii) to the knowledge of the Company, no attorney representing the Company or any Company Subsidiary, whether or not employed by the Company or any Company Subsidiary, has reported evidence of a violation of securities laws, breach of fiduciary duty or similar violation by the Company, any Company Subsidiary or any of their respective officers, directors, employees or agents to the Company Board or any committee thereof, or to the Chief Legal, Administrative & Compliance Officer General Counsel or Chief Executive Officer of the Company.
(e) The Company maintains disclosure controls as required by Rule 13a-15 or 15d-15 under the Exchange Act. As of the date hereof, the Company is in compliance in all material respects with all current listing requirements of the Nasdaq Global Select Market (“Nasdaq”).
(f) Neither the Company nor any Company Subsidiary is a party to, or has a commitment to effect, enter into or create, any joint venture, or “off-balance sheet arrangement” (as defined in Item 303(a) of Regulation S-K under the Exchange Act).
(g) As of the date of this Agreement, there are no outstanding or unresolved comments in comment letters received from the SEC with respect to the Company SEC Documents, and none of the Company SEC Documents is, to the knowledge of the Company, the subject of ongoing SEC reviewreview or investigation.
(h) Neither the Company nor any Company Subsidiary has any liabilities of any nature or type, whether accrued, absolute, determined, contingent or otherwise and whether due or to become due, except for: for (i) liabilities disclosed in the financial statements (including any related notes) contained in the Most Recent Company Balance Sheet; (ii) liabilities incurred in the ordinary course of business since the date of the Most Recent Company Balance Sheet; (iii) liabilities that do that, individually or in the aggregate, have not constitute constituted or would not reasonably be expected to result resulted in a Company Material Adverse Effect; and (iv) liabilities and obligations incurred in connection with the transactions contemplated by this Agreement.
Appears in 1 contract
Samples: Merger Agreement (Metromile, Inc.)
Reports; Financial Statements; Internal Controls. (a) All The Company and each of the Subsidiaries have timely filed all reports, registrations, schedules, forms, statements and other documents (including exhibits and all other information incorporated by reference therein) documents, together with any amendments required to be filed or furnished by the Company made with the SEC under the Exchange Act or Securities Act respect thereto (each, a ‘‘Report’’), that they were required to file since January 1, 2018 2003 with (i) the “FCC, (ii) the SEC, (iii) any state or other federal regulatory authority (other than any taxing authority, which is dealt with exclusively in covered by Section 3.10) and (iv) any foreign regulatory authority (other than any taxing authority, which is dealt with exclusively in Section 3.10), and have paid all fees and assessments due and payable in connection therewith, except in each case where the failure to file such Report, or to pay such fees and assessments, has not had, and would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect. No Report of the Company SEC Documents”) have been filed or furnished made with the SEC on a timely basis. As SEC, as of the time it was filed with the SEC (or, if amended or superseded, then on the date of such filing): Report, contained any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary in order to make the statements made therein, in the light of the circumstances in which they were made, not misleading, except that information as of a later date (ibut before the date of this Agreement) each shall be deemed to modify information as of an earlier date. Since January 1, 2003, as of their respective dates, all Reports of the Company made with the SEC Documents complied as to form in all material respects with the applicable requirements of the Securities Act, the Exchange Act and Act, the Xxxxxxxx-Xxxxx Act of 2002 (as the case may be‘‘SOX Act’’) and the applicable rules and regulations promulgated thereunder; and (ii) none of the Company SEC Documents contained any untrue statement of a material fact or omitted to state a 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 misleadingthereunder with respect thereto. No Company Subsidiary has been required to file any forms, reports or other documents with the SEC at any time since January 1, 2018. Since January 1, 2017 no executive officer of the Company has failed in any respect to make the certifications required of him or her under Section 302 or 906 of the Xxxxxxxx-Xxxxx SOX Act, and no enforcement action has been initiated against the Company by the SEC relating to disclosures contained in any Report of the Company made with the SEC.
(b) The Company has previously made available to Parent copies of (i) the consolidated balance sheet of the Company and the Subsidiaries as of December 31, 2004, and the related consolidated statements of operations, stockholders’ equity and cash flows for each of the two years in the period ended December 31, 2004, as reported in the Company’s Annual Report on Form 10-K for the fiscal year ended December 31, 2004, including any amendments thereto filed with the SEC (collectively, the ‘‘Company 2004 10-K’’), filed with the SEC under the Exchange Act, accompanied by the audit report by PricewaterhouseCoopers LLP, the independent registered public accounting firm with respect to the Company for such periods (such balance sheets and statements, the ‘‘Audited Company Financial Statements’’) and (ii) the unaudited consolidated balance sheet of the Company and the Subsidiaries as of September 30, 2005 and the related consolidated statements of operations, stockholders’ equity and cash flows for the nine-month period ended September 30, 2005, as reported in the Company’s Quarterly Report on Form 10-Q for the quarterly period ended September 30, 2005, including any amendments (collectively, the ‘‘Company 10-Q’’) (such balance sheets and statements, the ‘‘Unaudited Company Financial Statements’’ and, together with the Audited Company Financial Statements, the ‘‘Company Financial Statements’’). The consolidated balance sheets of the Company (including the related notes, where applicable) included in the Company Financial Statements fairly present in all material respects the consolidated financial position of the Company and the Subsidiaries as of the dates thereof, and the other financial statements included in the Company Financial Statements (including the related notes, where applicable) fairly present in all material respects the consolidated results of the operations and changes in stockholders’ equity and cash flows of the Company and the Subsidiaries for the respective fiscal periods therein set forth, subject in the case of the Unaudited Company Financial Statements to normal year-end audit adjustments that are consistent with past experience; each of such statements (including any the related notes, where applicable) contained or incorporated by reference in the Company SEC Documents: (i) complied as to form complies in all material respects with the published rules and regulations of the SEC applicable with respect thereto; (ii) were prepared in accordance with GAAP applied on a consistent basis throughout the periods covered (except as may be indicated in the notes to such financial statements or, in the case of unaudited statements, as permitted by Form 10-Q or any successor form under the Exchange Act, and except that unaudited financial statements may not contain footnotes and are subject to normal and recurring year-end adjustments); (iii) fairly present, in all material respects, the financial position each of the Company and Financial Statements (including the Company’s consolidated Subsidiaries as of the respective dates thereof and the results of operations and consolidated cash flows of the Company and the Company’s consolidated Subsidiaries for the periods covered thereby subjectrelated notes, with respect to unaudited interim statements, to normal and recurring year-end adjustments and (ivwhere applicable) have has been prepared from, and are in accordance with, the books and records of the Company and the Company’s consolidated Subsidiaries in all material respects. No financial statements of any Person other than the Company and the Company’s consolidated Subsidiaries are required by GAAP to be included in the consolidated financial statements of the Company. The books and records of the Company and the Company Subsidiaries have been, and are being, maintained in all material respects in accordance with GAAP and any other applicable legal and accounting requirements. As of consistently applied during the date of this Agreementperiods involved, PricewaterhouseCoopers LLP has not resigned (except, in each case, as indicated in such statements or informed in the Company that it intends to resign) or been dismissed as independent public accountants of the Companynotes thereto.
(c) The Company maintains, and at all times since June 25, 2017 has maintained, the Subsidiaries have designed and maintain a system of internal control controls over financial reporting (as defined in Rules 13a-15(f) and 15d-15(f) under of the Exchange Act) which is designed sufficient to provide reasonable assurance assurances regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with GAAP, and includes those policies and procedures that: reporting. The Company (i) pertain has designed and maintains disclosure controls and procedures (as defined in Rules 13a-15(e) and 15d-15(e) of the Exchange Act) to ensure that material information required to be disclosed by the Company in the Reports that it files or submits under the Exchange Act is recorded, processed, summarized and reported within the time periods specified in the SEC’s rules and forms and is accumulated and communicated to the maintenance of records that in reasonable detail accurately Company’s management as appropriate to allow timely decisions regarding required disclosure and fairly reflect the transactions and dispositions of the assets of the Company and the Company Subsidiaries; (ii) provide reasonable assurance that transactions are recorded as necessary has disclosed, based on its most recent evaluation of such disclosure controls and procedures prior to permit preparation of financial statements in conformity with GAAP and that receipts and expenditures are being made only in accordance with authorizations of management and directors of the Company; and (iii) provide reasonable assurance regarding prevention or timely detection of unauthorized acquisitiondate hereof, use or disposition of the assets of the Company and the Company Subsidiaries that could have a material effect on the financial statements. The Company’s management has completed an assessment of the effectiveness of the Company’s system of internal control over financial reporting in compliance with the requirements of Section 404 of the Xxxxxxxx-Xxxxx Act for the fiscal year ended June 29, 2019, and such assessment concluded that such controls were effective and the Company’s independent registered accountant has issued an attestation report concluding that the Company maintained effective internal control over financial reporting as of June 29, 2019. Management of the Company has disclosed to the Company’s auditors and the audit committee of the Board of Directors of the Company Board (iA) any significant deficiencies or and material weaknesses in the design and or operation of internal controls over financial reporting that are reasonably likely to adversely affect in any material respect the Company’s ability to record, process, summarize and report financial information and (iiB) any fraud, whether or not material, that involves management or any other employees who have a significant role in the Company’s internal control controls over financial reporting, and each such deficiency, weakness and fraud so disclosed to auditors, if any, has been disclosed to Parent prior to the date hereof.
(d) Since January 1, 2018, (i) none of the Company or any Company Subsidiary nor, to the knowledge of the Company, any director or officer of the Company or any Company Subsidiary has received or otherwise had or obtained knowledge of any material complaint, allegation, assertion or claim, whether written or oral, regarding accounting, internal accounting controls or auditing practices, procedures, methodologies or methods of the Company or any Company Subsidiary or any material complaint, allegation, assertion or claim from employees of the Company or any Company Subsidiary regarding questionable accounting or auditing matters with respect to the Company or any Company Subsidiary, and (ii) to the knowledge of the Company, no attorney representing the Company or any Company Subsidiary, whether or not employed by the Company or any Company Subsidiary, has reported evidence of a violation of securities laws, breach of fiduciary duty or similar violation by the Company, any Company Subsidiary or any of their respective officers, directors, employees or agents to the Company Board or any committee thereof, or to the Chief Legal, Administrative & Compliance Officer or Chief Executive Officer of the Company.
(e) The Company maintains disclosure controls as required by Rule 13a-15 or 15d-15 under the Exchange Act. As of the date hereof, the Company is in compliance in all material respects with all current listing requirements of the Nasdaq Global Select Market (“Nasdaq”).
(f) Neither the Company nor any Company Subsidiary is a party to, or has a commitment to effect, enter into or create, any joint venture, or “off-balance sheet arrangement” (as defined in Item 303(a) of Regulation S-K under the Exchange Act).
(g) As of the date of this Agreement, there are no outstanding or unresolved comments in comment letters received from the SEC with respect to the Company SEC Documents, and none of the Company SEC Documents is, to the knowledge of the Company, the subject of ongoing SEC review.
(h) Neither the Company nor any Company Subsidiary has any liabilities of any nature or type, whether accrued, absolute, determined, contingent or otherwise and whether due or to become due, except for: (i) liabilities disclosed in the financial statements (including any related notes) contained in the Most Recent Company Balance Sheet; (ii) liabilities incurred in the ordinary course of business since the date of the Most Recent Company Balance Sheet; (iii) liabilities that do not constitute or would not reasonably be expected to result in a Company Material Adverse Effect; and (iv) liabilities and obligations incurred in connection with the transactions contemplated by this Agreement.
Appears in 1 contract
Reports; Financial Statements; Internal Controls. (a) All reports, schedules, forms, statements and other documents (including exhibits and all other information incorporated by reference therein) required to be filed or furnished by the Company with the SEC under the Exchange Act or Securities Act since January 1, 2018 2019 (the “Company SEC Documents”) have been filed or furnished by or on behalf of the Company with the SEC on a timely basis. As of the time it was filed with the SEC (or, or if amended or superseded, then on the date of such amended or superseding filing): (i) each of the Company SEC Documents complied in all material respects with the applicable requirements of the Securities Act, the Exchange Act and the Xxxxxxxx-Xxxxx Act (as the case may be) and the applicable regulations promulgated thereunderthereunder and the listing requirements and corporate governance rules and regulations of Nasdaq, each as in effect on the date such Company SEC Document was filed; and (ii) none of the Company SEC Documents contained any untrue statement of a material fact or omitted to state a 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. No Company Subsidiary has been required to file any forms, reports or other documents with the SEC at any time since January 1, 20182019. Since January 1, 2017 2019 no executive officer of the Company has failed in any respect to make the certifications required of him or her under Section 302 or 906 of the Xxxxxxxx-Xxxxx Act. Neither the Company nor any of its executive officers has received notice from any Governmental Entity challenging or questioning the accuracy, completeness, form or manner of filing of such certifications.
(b) The financial statements (including any related notes) contained or incorporated by reference in the Company SEC Documents: (i) complied as to form in all material respects with the published rules and regulations of the SEC applicable thereto; (ii) were prepared in accordance with GAAP applied on a consistent basis throughout the periods covered (except as may be indicated in the notes to such financial statements or, in the case of unaudited statements, as permitted by Form 10-Q or any successor form under the Exchange Actrules and regulations of the SEC applicable thereto, and except that unaudited financial statements may not contain footnotes and are subject to normal and recurring year-end adjustments); (iii) fairly present, in all material respects, the financial position of the Company and the Company’s consolidated Subsidiaries as of the respective dates thereof and the results of operations and consolidated cash flows of the Company and the Company’s consolidated Subsidiaries for the periods covered thereby subject, with respect to unaudited interim statements, to normal and recurring year-end adjustments adjustments; and (iv) have been prepared from, and are in accordance with, the books and records of the Company and the Company’s consolidated Subsidiaries in all material respects. No financial statements of any Person other than the Company and the Company’s consolidated Subsidiaries are required by GAAP to be included in the consolidated financial statements of the Company. The books and records of the Company and the Company Subsidiaries have been, and are being, maintained in all material respects in accordance with GAAP and any other applicable legal and accounting requirements. As of the date of this Agreement, PricewaterhouseCoopers Deloitte & Touche LLP has not resigned (or informed the Company that it intends to resign) or been dismissed as independent public accountants of the Company.
(c) The Company maintains, and at all times since June 25January 1, 2017 2019 has maintained, a system of internal control over financial reporting (as defined in Rules 13a-15(f) and 15d-15(f) under the Exchange Act) which is designed to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with GAAP, and includes those policies and procedures that: (i) pertain to the maintenance of records that in reasonable detail accurately and fairly reflect the transactions and dispositions of the assets of the Company and the Company Subsidiaries; (ii) provide reasonable assurance that transactions are recorded as necessary to permit preparation of financial statements in conformity with GAAP and that receipts and expenditures are being made only in accordance with authorizations of management and directors of the Company; and (iii) provide reasonable assurance regarding prevention or timely detection of unauthorized acquisition, use or disposition of the assets of the Company and the Company Subsidiaries that could have a material effect on the financial statements. The Company’s management has completed an assessment of the effectiveness of the Company’s system of internal control over financial reporting in compliance with the requirements of Section 404 of the Xxxxxxxx-Xxxxx Act for the most recent fiscal year quarter ended June 29March 31, 2019, 2021 and such assessment concluded that such controls were effective and the Company’s independent registered accountant has issued an attestation report concluding that the Company maintained effective internal control over financial reporting as of June 29, 2019effective. Management of the Company has disclosed to the Company’s auditors and the audit committee of the Company Board (ix) any significant deficiencies or material weaknesses in the design and operation of internal controls over financial reporting since January 1, 2019 and (iiy) any fraud, whether or not material, that involves management or any other employees who have a significant role in the Company’s internal control over financial reporting, and each such deficiency, weakness and fraud so disclosed to auditors, if any, has been disclosed made available to Parent prior to the date hereof.
(d) Since January 1, 20182019, (i) none of the Company or any Company Subsidiary nor, to the knowledge of the Company, any director or officer of the Company or any Company Subsidiary has received or otherwise had or obtained knowledge of any material complaint, allegation, assertion or claim, whether written or oral, regarding accounting, internal accounting controls or auditing practices, procedures, methodologies or methods of the Company or any Company Subsidiary or any material complaint, allegation, assertion or claim from employees of the Company or any Company Subsidiary regarding questionable accounting or auditing matters with respect to the Company or any Company Subsidiary, and (ii) to the knowledge of the Company, no attorney representing the Company or any Company Subsidiary, whether or not employed by the Company or any Company Subsidiary, has reported evidence of a violation of securities laws, breach of fiduciary duty or similar violation by the Company, any Company Subsidiary or any of their respective officers, directors, employees or agents to the Company Board or any committee thereof, or to the Chief Legal, Administrative & Compliance Financial Officer or Chief Executive Officer of the Company.
(e) The Company maintains disclosure controls as required by Rule 13a-15 or 15d-15 under the Exchange Act. As of the date hereofof this Agreement, the Company is in compliance in all material respects with all current listing requirements of the Nasdaq Global Select Market (“Nasdaq”).
(f) Neither the Company nor any Company Subsidiary is a party to, or has a commitment to effect, enter into or create, any joint venture, or “off-balance sheet arrangement” (as defined in Item 303(a) of Regulation S-K under the Exchange Act).
(g) As of the date of this Agreement, there are no outstanding or unresolved comments in comment letters received from the SEC with respect to the Company SEC Documents, and none of the Company SEC Documents is, to the knowledge of the Company, the subject of ongoing SEC reviewreview or investigation.
(h) Neither the Company nor any Company Subsidiary has any liabilities of any nature or type, type (whether accrued, absolute, determined, contingent or otherwise and whether due or to become due), that would be required by GAAP to be reflected on a condensed consolidated balance sheet of the Company and its consolidated Company Subsidiaries, except for: (i) liabilities disclosed in the financial statements (including any related notes) contained in the Most Recent Company Balance Sheet; (ii) liabilities incurred in the ordinary course of business in a manner consistent with past practice since the date of the Most Recent Company Balance Sheet; (iii) liabilities that do that, individually or in the aggregate, have not constitute or had and would not reasonably be expected to result in have a Company Material Adverse Effect; and (iv) liabilities and obligations incurred in connection with this Agreement, the preparation and negotiation of this Agreement or the transactions contemplated by this Agreement.
Appears in 1 contract
Samples: Merger Agreement (Bioventus Inc.)
