SEC Documents; Financial Statements; Undisclosed Liabilities. (a) The Company has filed or furnished, as applicable, in a timely manner, all reports, schedules, forms, statements and other documents (including exhibits and other information incorporated therein) with the SEC required to be so filed or furnished, as applicable, by the Company at or after March 28, 2010 under the Securities Act and the Exchange Act (such documents, together with any documents and information incorporated therein by reference and together with any documents filed during such period by the Company with the SEC on Current Reports on Form 8-K, the “Company SEC Documents”). (b) As of its respective date, each Company SEC Document filed on or after March 28, 2010 complied in all material respects with the requirements of the Exchange Act, the Securities Act and the Xxxxxxxx-Xxxxx Act of 2002 and the rules and regulations promulgated thereunder applicable to such Company SEC Document, each as in effect on the date so filed. As of their respective dates (or, if amended prior to the date hereof, as of the date of such amendment), none of the Company SEC Documents filed on or after March 28, 2010 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 therein, in light of the circumstances under which they were made, not misleading, or which, individually or in the aggregate, would require an amendment, supplement or corrective filing of any such Company SEC Document. (c) The Company has made available to Parent (to the extent not otherwise publicly available) copies of all comment letters received from the SEC that (i) relate to the Company SEC Documents filed on or after March 29, 2008 or (ii) contain continuing obligations of the Company, and, in each case, all written responses of the Company thereto. As of the date of this Agreement, there are no outstanding or unresolved comments in such comment letters. The Company has not received any written notice from the SEC that any of the Company SEC Documents is the subject of any ongoing review by the SEC. (d) Each of the financial statements (including the related notes) of the Company included in the Company SEC Documents filed on or after March 28, 2010, complied at the time it was filed in all material respects with the applicable accounting requirements and the published rules and regulations of the SEC with respect thereto in effect at the time of filing, has been prepared in accordance with generally accepted accounting principles applied on a basis consistent with the Company’s past practices (“GAAP”) (except, in the case of unaudited statements, as permitted by the rules and regulations of the SEC) applied on a consistent basis during the periods involved (except as may be indicated in the notes thereto) and fairly presented in all material respects the consolidated financial position of the Company and its consolidated subsidiaries as of the dates thereof and the consolidated results of their operations and cash flows for the periods shown (subject, in the case of unaudited statements, to normal year-end audit adjustments). Since March 28, 2010, the accounting books and records of the Company and the Company Subsidiaries have been maintained in all material respects in accordance with applicable legal and accounting requirements. (e) None of the Company or any Company Subsidiary has any liabilities or obligations of any nature (whether accrued, absolute, contingent or otherwise), except liabilities and obligations (i) to the extent disclosed, reflected or reserved against in the most recent financial statements included in the Filed Company SEC Documents; (ii) related to the future performance in the ordinary course of business of any Contract entered into (x) prior to the date of the most recent financial statements included in the Filed Company SEC Documents, (y) in the ordinary course of business after such date, or (z) in connection with, and as contemplated by, this Agreement or the Merger; (iii) incurred or arising in the ordinary course of business since the date of the most recent financial statements included in the Filed Company SEC Documents; or (iv) that are in an amount not in excess of $15,000,000 in the aggregate (in the case of clauses (ii) and (iii), none of which (other than immaterial amounts) results from, arises out of, relates to, or was caused by any breach of Contract, breach of warranty, tort, infringement or violation of Law). (f) The Company has established and maintains a system of internal control over financial reporting (as defined in Rule 13a-15 under the Exchange Act). Such internal controls are designed to provide reasonable assurance regarding the reliability of the Company’s financial reporting and the preparation of the Company’s financial statements for external purposes in accordance with GAAP. Since March 28, 2010, the Company’s principal executive officer and its principal financial officer have disclosed, based on management’s evaluation in accordance with the requirements of Rule 13a-15 under the Exchange Act, to the Company’s auditors and the audit committee of the Company Board (i) all known significant deficiencies, if any, in the design or operation of internal controls over financial reporting that are reasonably likely to adversely affect in any material respect the Company’s ability to record, process, summarize and report financial information and have identified for the Company’s auditors any material weaknesses in internal controls, and (ii) any known fraud, whether or not material, that involves management or other employees who have a significant role in the Company’s internal controls. (g) The Company has established and maintains disclosure controls and procedures (as such term is defined in Rule 13a-15 under the Exchange Act); such disclosure controls and procedures are designed to ensure that transactions of the Company are being made only in accordance with the authorization of management and directors of the Company and that material information relating to the Company required to be disclosed in reports the Company files under the Exchange Act is recorded and made known to the individuals responsible for the preparation of the Company’s filings with the SEC and other public disclosure documents. (h) There are no pending (i) formal or, to the knowledge of the Company, informal investigations of the Company by the SEC, (ii) to the knowledge of the Company, inspections of an audit of the Company’s financial statements by the Public Company Accounting Oversight Board or (iii) investigations by the Audit Committee of the Company Board regarding any complaint, allegation, assertion or claim that the Company or any Company Subsidiary has engaged in improper or illegal accounting or auditing practices or maintains improper or inadequate internal accounting controls.
Appears in 1 contract
SEC Documents; Financial Statements; Undisclosed Liabilities. (ai) The Company has filed timely filed, or furnished, as applicable, in a timely manner, all reports, schedules, forms, registration statements and other documents (including exhibits and other information incorporated therein) required to be filed or submitted by it with the SEC required pursuant to be so filed or furnished, as applicable, by the Company at or after March 28, 2010 under the Securities Act and Act, the Exchange Act or other applicable securities statutes, regulations, policies, rules or interpretations thereof since January 1, 2008 (such documents, together with any documents and information incorporated therein by reference and together with any documents filed during such period by the Company with the SEC on Current Reports on Form 8-K, the “Company SEC Documents”).
(b) As of its respective date, each Company SEC Document filed on or after March 28, 2010 complied in all material respects with the requirements of the Exchange Act, the Securities Act and the Xxxxxxxx-Xxxxx Act of 2002 and the rules and regulations promulgated thereunder applicable to such Company SEC Document, each as in effect on the date so filed. As of their respective dates of filing with the SEC (or, if amended or superseded by a filing prior to the date hereof, as of the date of such amendmentfiling), the Company SEC Documents complied in all material respects with the requirements of the Securities Act or the Exchange Act, as the case may be, and the rules and regulations of the SEC thereunder applicable to such Company SEC Documents, and none of the Company SEC Documents when filed on (or, if amended or after March 28superseded by a filing prior to the date hereof, 2010 as of the date of such filing) contained any untrue statement of a material fact or omitted to state any 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, or which, individually or in the aggregate, would require an amendment, supplement or corrective filing of any such . The Company SEC Document.
Documents included all certificates required to be included therein pursuant to Sections 302 and 906 of the Xxxxxxxx-Xxxxx Act of 2002, as amended, and the rules and regulations promulgated thereunder (c) the “Xxxxxxxx-Xxxxx Act”), and the internal control report and attestation of the Company’s outside auditors required by Section 404 of the Xxxxxxxx-Xxxxx Act. The Company has made available to Parent (to the extent not otherwise publicly available) copies of all comment letters received any written comments from the SEC staff that (i) relate have not been resolved to the satisfaction of the SEC staff. Since January 1, 2008, the Company SEC Documents has not received a stop order or other order suspending the effectiveness or use of any registration statement or prospectus filed on by the Company under the Securities Act or after March 29the Exchange Act and, 2008 or (ii) contain continuing obligations to the Knowledge of the Company, andthe SEC has not issued any such order since such date. As used in this Agreement, the word “Knowledge” means as to a particular matter, the actual knowledge, after reasonable inquiry, of the individuals identified in each case, all written responses Section 3.1(d) of the Company theretoDisclosure Schedule. For this purpose, “reasonable inquiry” means, with respect to each person, (i) review of files and other information in his or her possession, custody or control and (ii) inquiry of employees of the Company or its Subsidiaries who have responsibilities pertinent to such inquiry and access to information in the possession, custody or control of the Company or its Subsidiaries. Since January 1, 2008, subject to any applicable grace periods, the Company and each of its officers and directors have been and are in compliance in all material respects with the rules and regulations of Nasdaq. As of the date of this Agreement, there are no outstanding or unresolved comments in such comment letters. The Company has not received any written notice from the SEC that any none of the Company SEC Documents is the subject of any ongoing review by the SEC.
(d) Each of the financial statements (including the related notes) of the Company included in the Company SEC Documents filed on or after March 28, 2010, complied at the time it was filed in all material respects with the applicable accounting requirements and the published rules and regulations of the SEC with respect thereto in effect at the time of filing, has been prepared in accordance with generally accepted accounting principles applied on a basis consistent with the Company’s past practices (“GAAP”) (except, in the case of unaudited statements, as permitted by the rules and regulations of the SEC) applied on a consistent basis during the periods involved (except as may be indicated in the notes thereto) and fairly presented in all material respects the consolidated financial position of the Company and its consolidated subsidiaries as of the dates thereof and the consolidated results of their operations and cash flows for the periods shown (subject, in the case of unaudited statements, to normal year-end audit adjustments). Since March 28, 2010, the accounting books and records of the Company and the Company Subsidiaries have been maintained in all material respects in accordance with applicable legal and accounting requirements.
(e) None of the Company or any Company Subsidiary has any liabilities or obligations of any nature (whether accrued, absolute, contingent or otherwise), except liabilities and obligations (i) is subject to the extent disclosed, reflected reporting requirements of Section 13(a) or reserved against in the most recent financial statements included in the Filed Company SEC Documents; (ii15(d) related to the future performance in the ordinary course of business of any Contract entered into (x) prior to the date of the most recent financial statements included in the Filed Company SEC Documents, (y) in the ordinary course of business after such date, or (z) in connection with, and as contemplated by, this Agreement or the Merger; (iii) incurred or arising in the ordinary course of business since the date of the most recent financial statements included in the Filed Company SEC Documents; or (iv) that are in an amount not in excess of $15,000,000 in the aggregate (in the case of clauses (ii) and (iii), none of which (other than immaterial amounts) results from, arises out of, relates to, or was caused by any breach of Contract, breach of warranty, tort, infringement or violation of Law).
(f) The Company has established and maintains a system of internal control over financial reporting (as defined in Rule 13a-15 under the Exchange Act). Such internal controls are designed to provide reasonable assurance regarding the reliability of the Company’s financial reporting and the preparation of the Company’s financial statements for external purposes in accordance with GAAP. Since March 28, 2010, the Company’s principal executive officer and its principal financial officer have disclosed, based on management’s evaluation in accordance with the requirements of Rule 13a-15 under the Exchange Act, to the Company’s auditors and the audit committee of the Company Board (i) all known significant deficiencies, if any, in the design or operation of internal controls over financial reporting that are reasonably likely to adversely affect in any material respect the Company’s ability to record, process, summarize and report financial information and have identified for the Company’s auditors any material weaknesses in internal controls, and (ii) any known fraud, whether or not material, that involves management or other employees who have a significant role in the Company’s internal controls.
(g) The Company has established and maintains disclosure controls and procedures (as such term is defined in Rule 13a-15 under the Exchange Act); such disclosure controls and procedures are designed to ensure that transactions of the Company are being made only in accordance with the authorization of management and directors of the Company and that material information relating to the Company required to be disclosed in reports the Company files under the Exchange Act is recorded and made known to the individuals responsible for the preparation of the Company’s filings with the SEC and other public disclosure documents.
(h) There are no pending (i) formal or, to the knowledge of the Company, informal investigations of the Company by the SEC, (ii) to the knowledge of the Company, inspections of an audit of the Company’s financial statements by the Public Company Accounting Oversight Board or (iii) investigations by the Audit Committee of the Company Board regarding any complaint, allegation, assertion or claim that the Company or any Company Subsidiary has engaged in improper or illegal accounting or auditing practices or maintains improper or inadequate internal accounting controls.
Appears in 1 contract
SEC Documents; Financial Statements; Undisclosed Liabilities. (a) The Company has filed or furnished, as applicable, in a timely manner, furnished all reports, schedules, forms, statements statements, registration statements, prospectuses and other documents (including exhibits and other information incorporated therein) with the SEC required to be so filed or furnished, as applicable, by the Company at or after March 28, 2010 under the Securities Act and the Exchange Act (such documents, together with any documents and information incorporated therein by reference and together with any documents filed during such period furnished by the Company with the SEC on Current Reports on Form 8-Kunder the Securities Act or the Exchange Act since January 1, 2018 (the reports, schedules, forms, statements, registration statements, prospectuses and other documents filed or furnished to the SEC and those filed or furnished to the SEC subsequent to the date of this Agreement, including any amendments thereto, the “Company SEC Documents”). None of the Subsidiaries of the Company is required to make any filings with the SEC.
(b) As of its respective datefiling date (or, if amended or superseded, on the date of such filing) each Company SEC Document complied, or if not yet filed on or after March 28furnished will comply, 2010 complied in all material respects with the requirements of the Exchange Act or the Securities Act, as the Securities Act and the Xxxxxxxx-Xxxxx Act of 2002 case may be, and the rules and regulations of the SEC promulgated thereunder applicable to such Company SEC DocumentDocument and did not, each as in effect on the date so filed. As of their respective dates (oror if not yet filed or furnished will not, if amended prior to the date hereof, as of the date of such amendment), none of the Company SEC Documents filed on or after March 28, 2010 contained contain any untrue statement of a material fact or omitted omit to state any 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, or which, individually or in the aggregate, would require an amendment, supplement or corrective filing of any such Company SEC Document.
(c) The Company has made available to Parent (to the extent not otherwise publicly available) copies of all comment letters received from the SEC that (i) relate to the Company SEC Documents filed on or after March 29, 2008 or (ii) contain continuing obligations of the Company, and, in each case, all written responses of the Company thereto. As of the date of this Agreement, there are no outstanding or unresolved comments in such comment letters. The Company has not received any written notice from the SEC that any of the Company SEC Documents is the subject of any ongoing review by the SEC.
(d) Each of the consolidated financial statements (including the related notes) of the Company included in the Company SEC Documents filed on (including, in each case, any notes or after March 28schedules thereto) (the “Company SEC Financial Statements”) fairly present, 2010, complied at the time it was filed in all material respects with respects, the applicable accounting requirements financial condition and the published rules results of operations, cash flows and regulations changes in stockholders’ equity of the Company and its Subsidiaries (on a consolidated basis) as of the respective dates of and for the periods referred to in the Company SEC with respect thereto in effect at the time of filingFinancial Statements, has been prepared and were prepared, or if not yet filed or furnished will be prepared, in accordance with generally accepted accounting principles GAAP as applied on a basis consistent with by the Company’s past practices Company (“GAAP”) (exceptexcept as may be indicated in the notes thereto or, in the case of unaudited statements, as permitted by the rules and regulations Form 10-Q of the SEC) applied on a consistent basis during the periods involved (except as may be indicated in the notes thereto) and fairly presented in all material respects the consolidated financial position of the Company and its consolidated subsidiaries as of the dates thereof and the consolidated results of their operations and cash flows for the periods shown (), subject, in the case of unaudited statementsCompany SEC Financial Statements, to normal year-end audit adjustments)adjustments and the absence of notes.
(d) The Company has timely filed all certifications and statements required by (i) Rule 13a-14 or Rule 15d-14 under the Exchange Act; or (ii) 18 U.S.C. Section 1350 (Section 906 of the Xxxxxxxx-Xxxxx Act) with respect to all applicable Company SEC Documents. Since March 28The Company maintains disclosure controls and procedures required by Rule 13a-15 or Rule 15d-15 under the Exchange Act, 2010, which such controls and procedures are designed to ensure that all material information concerning the accounting books Company and records its Subsidiaries is made known on a timely basis to the individuals responsible for the preparation of the Company and SEC Documents. Since January 1, 2018, none of the Company, its Subsidiaries or, to the Knowledge of the Company, the Company’s independent registered accountant has identified (i) any significant deficiency or material weakness in the design or operation of internal control over financial reporting utilized by the Company, (ii) any fraud, whether or not material, that involves the management or other employees of the Company or any of its Subsidiaries who have been maintained a significant role in all the Company’s preparation of financial statements or internal control over financial reporting, or (iii) any claim or allegation regarding any of the foregoing which was presented to the Company Board. The Company, based on its most recent evaluation of internal control over financial reporting, has not identified any significant deficiencies or material respects weaknesses in accordance with applicable legal and accounting requirementsthe design or operation of its internal control over financial reporting.
(e) None of the The Company or any Company Subsidiary has and its Subsidiaries do not have any liabilities or obligations of any nature (whether absolute or contingent, asserted or unasserted, known or unknown, primary or secondary, direct or indirect, and whether or not accrued, absolute, contingent or otherwise), required by GAAP to be reflected or reserved on a consolidated balance sheet of the Company (or the notes thereto) except liabilities and obligations (i) to the extent as disclosed, reflected or reserved against in the most recent financial statements audited balance sheet included in the Filed Company SEC Documents; Financial Statements or the notes thereto, (ii) related to the future performance in the ordinary course of business of any Contract entered into (x) prior to the date of the most recent financial statements included in the Filed Company SEC Documents, (y) in the ordinary course of business after such date, or (z) in connection with, for liabilities and as contemplated by, this Agreement or the Merger; (iii) obligations incurred or arising in the ordinary course of business since the date of the most recent financial statements balance sheet included in the Filed Company SEC Documents; Financial Statements, (iii) for liabilities and obligations arising out of or in connection with this Agreement, the Merger or the Transactions and (iv) that are in an amount not in excess of $15,000,000 for liabilities and obligations that, individually or in the aggregate (in the case of clauses (ii) and (iii)aggregate, none of which (other than immaterial amounts) results from, arises out of, relates to, or was caused by any breach of Contract, breach of warranty, tort, infringement or violation of Law).
(f) The Company has established and maintains a system of internal control over financial reporting (as defined in Rule 13a-15 under the Exchange Act). Such internal controls are designed to provide reasonable assurance regarding the reliability of the Company’s financial reporting and the preparation of the Company’s financial statements for external purposes in accordance with GAAP. Since March 28, 2010, the Company’s principal executive officer and its principal financial officer have disclosed, based on management’s evaluation in accordance with the requirements of Rule 13a-15 under the Exchange Act, to the Company’s auditors and the audit committee of the Company Board (i) all known significant deficiencies, if any, in the design or operation of internal controls over financial reporting that are reasonably likely to adversely affect in any material respect the Company’s ability to record, process, summarize and report financial information and have identified for the Company’s auditors any material weaknesses in internal controlsnot had, and (ii) any known fraudwould not reasonably be expected to have, whether or not material, that involves management or other employees who have a significant role in the Company’s internal controlsCompany Material Adverse Effect.
(g) The Company has established and maintains disclosure controls and procedures (as such term is defined in Rule 13a-15 under the Exchange Act); such disclosure controls and procedures are designed to ensure that transactions of the Company are being made only in accordance with the authorization of management and directors of the Company and that material information relating to the Company required to be disclosed in reports the Company files under the Exchange Act is recorded and made known to the individuals responsible for the preparation of the Company’s filings with the SEC and other public disclosure documents.
(h) There are no pending (i) formal or, to the knowledge of the Company, informal investigations of the Company by the SEC, (ii) to the knowledge of the Company, inspections of an audit of the Company’s financial statements by the Public Company Accounting Oversight Board or (iii) investigations by the Audit Committee of the Company Board regarding any complaint, allegation, assertion or claim that the Company or any Company Subsidiary has engaged in improper or illegal accounting or auditing practices or maintains improper or inadequate internal accounting controls.
Appears in 1 contract
Samples: Merger Agreement (LogMeIn, Inc.)
SEC Documents; Financial Statements; Undisclosed Liabilities. (a) The Company has filed or furnished, as applicable, in a timely manner, furnished all reports, schedules, forms, statements statements, registration statements, prospectuses and other documents (including exhibits and other information incorporated therein) required to be filed or furnished by the Company with the SEC required to be so filed or furnished, as applicable, by the Company at or after March 28, 2010 under the Securities Act and or the Exchange Act since November 20, 2013 (such documents, together with any documents and information incorporated therein by reference and together with any documents filed or furnished during such period by the Company with to the SEC on Current Reports on Form 8-Ka voluntary basis, the “Company SEC Documents”). No Company Subsidiary is, or has at any time since November 20, 2013 been, subject to the periodic reporting requirements of the Exchange Act or is or has been otherwise required to file any form, report, statement, schedule, certificate or other document with the SEC, any foreign Governmental Entity that performs a similar function to that of the SEC or any securities exchange or quotation system.
(b) As of its respective date, or, if amended, as of the date of the last such amendment, each of the Company SEC Document Documents complied when filed on or after March 28furnished (or, 2010 complied if applicable, when amended) in all material respects with the requirements of the Exchange Securities Act, the Securities Exchange Act and the Xxxxxxxx-Xxxxx Act of 2002 and the related rules and regulations promulgated thereunder or under the Exchange Act (the “Xxxxxxxx-Xxxxx Act”), in each case to the extent applicable to such Company SEC DocumentDocuments, each as in effect on the date so filed. As of their respective dates (or, if amended prior to the date hereof, as of the date of such amendment), and none of the Company SEC Documents when filed on or after March 28furnished (or in the case of a registration statement under the Securities Act, 2010 at the time it was declared effective) contained any untrue statement of a material fact or omitted to state any 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, or which, individually or in the aggregate, would require an amendment, supplement or corrective filing of any such misleading (and no Company SEC DocumentDocument that is a registration statement, as amended or supplemented, if applicable, filed pursuant to the Securities Act, as of the date such registration statement or amendment became effective, contained any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary to make the statements therein not misleading).
(c) The Company has made available to Parent (to the extent not otherwise publicly available) copies of all comment letters received from the SEC that (i) relate to the Company SEC Documents filed on or after March 29, 2008 or (ii) contain continuing obligations of the Company, and, in each case, all written responses of the Company thereto. As of the date of this Agreement, there are no outstanding or unresolved comments in such comment letters. The Company has not received any written notice from the SEC that any of the Company SEC Documents is the subject of any ongoing review by the SEC.
(d) Each of the consolidated financial statements (including the related notes) of the Company included in the Company SEC Documents filed on (including, in each case, any notes or after March 28schedules thereto) and all related reports issued by the Company’s accountants with respect thereto (the “Company SEC Financial Statements”), 2010have been derived from the accounting books and records of the Company and the Company Subsidiaries, as applicable, and (i) as of their respective dates of filing with the SEC complied at the time it was filed as to form in all material respects with the applicable accounting requirements and the published rules and regulations of the SEC with respect thereto in effect at the time of filingthereto, has been (ii) were prepared in accordance with generally accepted accounting principles applied on a basis consistent with the Company’s past practices (“GAAP”) (except, in the case of unaudited statements, as permitted by the rules and regulations of the SEC) GAAP applied on a consistent basis during the periods involved (except as may be indicated in the notes theretothereto and except, in the case of the unaudited interim statements, as may be permitted by Form 10-Q and Regulation S-X of the SEC) and (iii) fairly presented present, in all material respects respects, the consolidated financial position of the Company and its consolidated subsidiaries the Company Subsidiaries, as of applicable, as at the respective dates thereof thereof, and the consolidated results of their operations operations, and, where included, their consolidated stockholders’ equity and their consolidated cash flows for the respective periods shown indicated (subject, in the case of the unaudited statements, to normal year-end audit adjustmentsadjustments (which are not material in significance or amount) and the absence of notes). Since March 28No financial statements of any Person other than the Company and the Company Subsidiaries are required by GAAP to be included in the consolidated financial statements of the Company. Except as required by GAAP and disclosed in the Company SEC Documents, 2010between November 20, 2013 and the date of this Agreement, the Company has not made or adopted any material change in its accounting methods, practices or policies. The books and records of the Company and the Company Subsidiaries have been been, and are being, maintained in all material respects in accordance with GAAP (to the extent applicable) and any other applicable legal and accounting requirementsrequirements and reflect only actual transactions.
(d) The Company is in compliance in all material respects with (i) the applicable provisions of the Xxxxxxxx-Xxxxx Act and (ii) the applicable listing and corporate governance rules and regulations of the Nasdaq.
(e) None There are no outstanding or unresolved comments in comment letters received from the SEC staff with respect to any Company SEC Documents and none of the Company or any Company Subsidiary has any liabilities or obligations of any nature (whether accrued, absolute, contingent or otherwise), except liabilities and obligations (i) to the extent disclosed, reflected or reserved against in the most recent financial statements included in the Filed Company SEC Documents; (ii) related to the future performance in the ordinary course of business of any Contract entered into (x) prior to the date of the most recent financial statements included in the Filed Company SEC Documents, (y) in the ordinary course of business after such date, or (z) in connection with, and as contemplated by, this Agreement or the Merger; (iii) incurred or arising in the ordinary course of business since the date of the most recent financial statements included in the Filed Company SEC Documents; or (iv) that are in an amount not in excess of $15,000,000 in the aggregate (in the case of clauses (ii) and (iii), none of which Documents (other than immaterial amountsconfidential treatment requests) results fromis, arises out ofto the Knowledge of the Company, relates tothe subject of ongoing SEC review. There are no internal investigations, any SEC inquiries or was caused by investigations or other governmental inquiries or investigations pending or, to the Knowledge of the Company, threatened, in each case regarding any breach accounting practices of Contractthe Company. The Company has made available to Parent true, breach correct and complete copies of warrantyall written correspondence between the SEC, torton the one hand, infringement or violation and the Company and any of Law)its Subsidiaries, on the other hand, occurring since November 20, 2013.
(f) The Since November 20, 2013, the Company has established designed and maintains a system of maintained disclosure controls and procedures and internal control over financial reporting (as such terms are defined in Rule 13a-15 and Rule 15d-15 under the Exchange Act)) as required by Rules 13a-15 and 15d-15 under the Exchange Act. Such internal The Company’s disclosure controls and procedures are designed to provide reasonable assurance ensure that all information (both financial and non-financial) required to be disclosed by the Company in the reports that it files or furnishes under the Exchange Act is recorded, processed, summarized and reported within the time periods specified in the rules and forms of the SEC, and that all such information is accumulated and communicated to the Company’s management as appropriate to allow timely decisions regarding required disclosure and to make the reliability certifications required pursuant to Sections 302 and 906 of the Xxxxxxxx-Xxxxx Act. The Company’s management has completed an assessment of the effectiveness of the Company’s financial reporting disclosure controls and procedures and, to the preparation extent required by applicable Law, presented in any applicable Company SEC Document that is a report on Form 10-K or Form 10-Q, or any amendment thereto, its conclusions about the effectiveness of the disclosure controls and procedures as of the end of the period covered by such report or amendment based on such evaluation. Based on Company management’s most recently completed evaluation of the Company’s internal control over financial statements for external purposes in accordance with GAAP. Since March 28reporting, 2010, the Company’s principal executive officer and its principal financial officer have disclosed, based on management’s evaluation in accordance with the requirements of Rule 13a-15 under the Exchange Act, to the Company’s auditors and the audit committee of the Company Board (i) all known the Company had no significant deficiencies, if any, deficiencies or material weaknesses in the design or operation of its internal controls control over financial reporting that are would reasonably likely be expected to adversely affect in any material respect the Company’s ability to record, process, summarize and report financial information and have identified for the Company’s auditors any material weaknesses in internal controls, and (ii) the Company does not have Knowledge of any known fraud, whether or not material, that involves management or other employees who have a significant role in the Company’s internal controls.
(g) The Company has established and maintains disclosure controls and procedures (as such term is defined in Rule 13a-15 under the Exchange Act); such disclosure controls and procedures are designed to ensure that transactions of the Company are being made only in accordance with the authorization of management and directors of the Company and that material information relating to the Company required to be disclosed in reports the Company files under the Exchange Act is recorded and made known to the individuals responsible for the preparation of the Company’s filings with the SEC and other public disclosure documents.
(h) There are no pending (i) formal orcontrol over financial reporting. Since November 20, 2013, to the knowledge Knowledge of the Company, informal investigations no executive officer or director of the Company by the SEChas received or otherwise had or obtained knowledge of, (ii) and to the knowledge Knowledge of the Company, inspections of an audit of the Company’s financial statements by the Public Company Accounting Oversight Board no auditor, accountant, employee or (iii) investigations by the Audit Committee representative of the Company Board regarding has provided written notice to the Company or any complaintexecutive officer or director of, allegation, assertion any substantive complaint or claim allegation that the Company or any Company Subsidiary has engaged in improper accounting practices. Since November 20, 2013, to the Knowledge of the Company, no attorney representing the Company or illegal accounting any Company Subsidiary has reported to the Company Board or auditing practices any committee thereof or maintains improper to any current director or inadequate internal accounting controlsexecutive officer of the Company evidence of a material violation of United States or other securities Laws or breach of fiduciary duty by the Company or any of its executive officers or directors.
(g) The Company and the Company Subsidiaries do not have any liabilities or obligations of any nature (whether absolute or contingent, asserted or unasserted, known or unknown, primary or secondary, direct or indirect, and whether or not accrued) of the type required to be set forth in the “liabilities” column of a balance sheet prepared in accordance with GAAP or in the notes thereto, except (i) those that, individually or in the aggregate, have not had and would not reasonably be expected to have a Company Material Adverse Effect, (ii) as reflected or reserved against in the most recent balance sheet included in the Company SEC Financial Statements or the notes thereto, (iii) for liabilities and obligations incurred in the ordinary course of business consistent with past practice since the date of the most recent balance sheet included in the Company SEC Financial Statements and (iv) for liabilities and obligations arising out of or in connection with this Agreement, the Offer or the Mergers. Neither the Company nor any of the Company Subsidiaries is a party to, or has any commitment to become a party to, any joint venture, off-balance sheet partnership or any similar Contract or arrangement (including any Contract or arrangement relating to any transaction or relationship between or among the Company and any of the Company Subsidiaries, on the one hand, and any unconsolidated Affiliate, including any structured finance, special purpose or limited purpose entity or Person, on the other hand, or any material “off-balance sheet arrangement” (as defined in Item 303(a) of Regulation S-K of the Exchange Act)), where the result, purpose or intended effect of such Contract or arrangement is to avoid disclosure of any material transaction involving, or material liabilities of, the Company or any of the Company Subsidiaries in the Company SEC Financial Statements or other Company SEC Documents.
Appears in 1 contract
Samples: Agreement and Plan of Reorganization (Zulily, Inc.)
SEC Documents; Financial Statements; Undisclosed Liabilities. (a) The ------------------------------------------------------------ Company has filed or furnished, as applicable, in a timely manner, all reports, schedules, forms, statements and other documents (including exhibits and other information incorporated therein) required to be filed with the SEC required (the "Company SEC Documents"). Except as --------------------- expressly disclosed in the Company SEC Documents with respect to be so Company SEC Documents filed or furnishedprior to December 31, 1998, all of the Company SEC Documents, as applicableof their respective filing dates, by complied, or will comply, as the Company at or after March 28case may be, 2010 under in all material respects with all applicable requirements of the Securities Act and the Exchange Act (such documentsand, together with any documents and information incorporated therein by reference and together with any documents filed during such period by the Company with the SEC on Current Reports on Form 8-Kin each case, the “Company SEC Documents”).
(b) As of its respective date, each Company SEC Document filed on or after March 28, 2010 complied in all material respects with the requirements of the Exchange Act, the Securities Act and the Xxxxxxxx-Xxxxx Act of 2002 and the rules and regulations promulgated thereunder applicable to such Company SEC Document, each Documents. Except as expressly disclosed in effect on the date so filed. As of their respective dates (or, if amended Company SEC Documents with respect to Company SEC Documents filed prior to the date hereofDecember 31, as of the date of such amendment)1998, none of the Company SEC Documents filed on at the time of filing and effectiveness contained, or after March 28will contain as of the Closing Date, 2010 contained as the case may be, any untrue statement of a material fact or omitted omitted, or will omit, as the case may be, to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, or which, individually or in the aggregate, would require an amendment, supplement or corrective filing of any such Company SEC Document.
(c) The Company has made available to Parent (except to the extent not otherwise publicly available) copies of all comment letters received from the such statements have been amended, modified or superseded by later Company SEC that (i) relate to Documents. Except as expressly disclosed in the Company SEC Documents filed on or after March 29, 2008 or (ii) contain continuing obligations of the Company, and, in each case, all written responses of the Company thereto. As of the date of this Agreement, there are no outstanding or unresolved comments in such comment letters. The Company has not received any written notice from the SEC that any of the with respect to Company SEC Documents is filed prior to December 31, 1998, the subject of any ongoing review by the SEC.
(d) Each of the consolidated financial statements (including the related notes) of the Company included in the Company SEC Documents filed on complied, or after March 28will comply, 2010as the case may be, complied at the time it was filed as to form in all material respects with the applicable accounting requirements and the published rules and regulations of the SEC with respect thereto in effect at thereto, have been prepared, or will be prepared, as the time of filingcase may be, has been prepared in accordance with generally accepted accounting principles applied on a basis consistent with the Company’s past practices (“GAAP”) GAAP (except, in the case of unaudited statements, as permitted by Form 10-Q promulgated under the rules and regulations of the SECExchange Act) applied on a consistent basis during the periods involved (except as may be indicated in the notes thereto) and fairly presented presented, or will present, as the case may be, in all material respects accordance with the applicable requirements of GAAP, the consolidated financial position of the Company and its consolidated subsidiaries as of the dates thereof and the consolidated results of their operations and cash flows for the periods shown then ended (subject, in the case of unaudited statements, to normal and recurring year-end audit adjustmentsadjustments which were not or are not expected to be material in amount). Since March 28, 2010, the accounting books and records of Except as set forth in the Company and SEC Documents filed with the SEC prior to the date hereof or in Schedule 3(f) to ------------- the Company Subsidiaries have been maintained Disclosure Letter, and except for liabilities and obligations incurred since December 31, 1998, in all material respects in accordance the ordinary course of business and consistent with applicable legal and accounting requirements.
(e) None of past practice, neither the Company or nor any Company Subsidiary has any material liabilities or obligations of any nature (whether accrued, absolute, contingent or otherwise), except liabilities and obligations (i) required by GAAP to the extent disclosed, reflected or reserved against in the most recent financial statements included in the Filed Company SEC Documents; (ii) related to the future performance in the ordinary course of business of any Contract entered into (x) prior to the date of the most recent financial statements included in the Filed Company SEC Documents, (y) in the ordinary course of business after such date, or (z) in connection with, and as contemplated by, this Agreement or the Merger; (iii) incurred or arising in the ordinary course of business since the date of the most recent financial statements included in the Filed Company SEC Documents; or (iv) that are in an amount not in excess of $15,000,000 in the aggregate (in the case of clauses (ii) and (iii), none of which (other than immaterial amounts) results from, arises out of, relates to, or was caused by any breach of Contract, breach of warranty, tort, infringement or violation of Law).
(f) The Company has established and maintains be set forth on a system of internal control over financial reporting (as defined in Rule 13a-15 under the Exchange Act). Such internal controls are designed to provide reasonable assurance regarding the reliability of the Company’s financial reporting and the preparation of the Company’s financial statements for external purposes in accordance with GAAP. Since March 28, 2010, the Company’s principal executive officer and its principal financial officer have disclosed, based on management’s evaluation in accordance with the requirements of Rule 13a-15 under the Exchange Act, to the Company’s auditors and the audit committee consolidated balance sheet of the Company Board (i) all known significant deficiencies, if any, or in the design or operation of internal controls over financial reporting that are reasonably likely to adversely affect in any material respect the Company’s ability to record, process, summarize and report financial information and have identified for the Company’s auditors any material weaknesses in internal controls, and (ii) any known fraud, whether or not material, that involves management or other employees who have a significant role in the Company’s internal controlsnotes thereto.
(g) The Company has established and maintains disclosure controls and procedures (as such term is defined in Rule 13a-15 under the Exchange Act); such disclosure controls and procedures are designed to ensure that transactions of the Company are being made only in accordance with the authorization of management and directors of the Company and that material information relating to the Company required to be disclosed in reports the Company files under the Exchange Act is recorded and made known to the individuals responsible for the preparation of the Company’s filings with the SEC and other public disclosure documents.
(h) There are no pending (i) formal or, to the knowledge of the Company, informal investigations of the Company by the SEC, (ii) to the knowledge of the Company, inspections of an audit of the Company’s financial statements by the Public Company Accounting Oversight Board or (iii) investigations by the Audit Committee of the Company Board regarding any complaint, allegation, assertion or claim that the Company or any Company Subsidiary has engaged in improper or illegal accounting or auditing practices or maintains improper or inadequate internal accounting controls.
Appears in 1 contract
SEC Documents; Financial Statements; Undisclosed Liabilities. (a) The Company has Xxxxxxx and Xxxxxxx Partnership have filed or furnished, as applicable, in a timely manner, all reports, schedules, forms, statements and other documents (including exhibits and other information incorporated therein) required to be filed with the SEC required to be so since December 31, 1997 through the date hereof (collectively, including all exhibits thereto and any registration statement filed or furnished, as applicable, by the Company at or after March 28, 2010 under the Securities Act and the Exchange Act (since such documents, together with any documents and information incorporated therein by reference and together with any documents filed during such period by the Company with the SEC on Current Reports on Form 8-Kdate, the “Company Xxxxxxx SEC Documents”).
. All of the Xxxxxxx SEC Documents (b) As other than preliminary material), as of its their respective datefiling dates, each Company SEC Document filed on or after March 28, 2010 complied in all material respects with the all applicable requirements of the Exchange Act, the Securities Act and the Xxxxxxxx-Xxxxx Securities Exchange Act of 2002 and 1934, as amended (the “Exchange Act”), and, in each case, the rules and regulations promulgated thereunder applicable to such Company Xxxxxxx SEC DocumentDocuments. None of the Xxxxxxx SEC Documents at the time of filing contained, each as in effect on nor will any report, schedule, form, statement or other document filed by Xxxxxxx or Xxxxxxx Partnership after the date so filed. As of their respective dates (or, if amended hereof and prior to the date hereofEffective Time contain, as of the date of such amendment), none of the Company SEC Documents filed on or after March 28, 2010 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 therein, in light of the circumstances under which they were made, not misleading, or which, individually or in the aggregate, would require an amendment, supplement or corrective filing of any such Company SEC Document.
(c) The Company has made available to Parent (to the extent not otherwise publicly available) copies of all comment letters received from the SEC that (i) relate to the Company SEC Documents filed on or after March 29, 2008 or (ii) contain continuing obligations of the Company, and, in each case, all written responses of the Company thereto. As of the date of this Agreement, there are no outstanding or unresolved comments in such comment letters. The Company has not received any written notice from the SEC that any of the Company SEC Documents is the subject of any ongoing review by the SEC.
(d) Each of the consolidated financial statements (including the related notes) of the Company Xxxxxxx included in the Company Xxxxxxx SEC Documents filed on or after March 28of Xxxxxxx Partnership included in the Xxxxxxx SEC Documents complied, 2010or will comply, complied at the time it was filed as to form in all material respects with the applicable accounting requirements and the published rules and regulations of the SEC with respect thereto in effect at the time of filingthereto, has have been or will be prepared in accordance with generally accepted accounting principles applied on a basis consistent with the Company’s past practices (“GAAP”) (except, in the case of unaudited statements, as permitted by the applicable rules and regulations of the SEC) applied on a consistent basis during the periods involved (except as may be indicated in the notes thereto) and fairly presented presented, or will fairly present, in all material respects in accordance with the applicable requirements of GAAP and the applicable rules and regulations of the SEC, the consolidated financial position of the Company Xxxxxxx and its consolidated subsidiaries Subsidiaries or Xxxxxxx Partnership and its Subsidiaries, as the case may be, in each case, taken as a whole, as of the dates thereof and the consolidated results of their operations and cash flows for the periods shown then ended (subjectexcept, in the case of unaudited statements, to normal yearas permitted by Form 10-end audit adjustmentsQ under the Exchange Act). Since March 28Except as set forth in Schedule 2.6(b) to the Xxxxxxx Disclosure Letter, 2010Xxxxxxx has no Subsidiaries which are not consolidated for accounting purposes. Except for liabilities and obligations set forth in the Xxxxxxx SEC Documents or in Schedule 2.6(c) to the Xxxxxxx Disclosure Letter, the accounting books and records none of the Company and the Company Subsidiaries have been maintained in all material respects in accordance with applicable legal and accounting requirements.
(e) None of the Company Xxxxxxx, any Xxxxxxx Subsidiary or any Company Subsidiary Xxxxxxx TRS has any liabilities or obligations of any nature (whether accrued, absolute, contingent or otherwise), except liabilities and obligations (i) required by GAAP to the extent disclosed, reflected be set forth on a consolidated balance sheet of Xxxxxxx or reserved against in the most recent financial statements included notes thereto and which, individually or in the Filed Company SEC Documents; (ii) related aggregate, would reasonably be expected to the future performance in the ordinary course of business of any Contract entered into (x) prior to the date of the most recent financial statements included in the Filed Company SEC Documents, (y) in the ordinary course of business after such date, or (z) in connection with, and as contemplated by, this Agreement or the Merger; (iii) incurred or arising in the ordinary course of business since the date of the most recent financial statements included in the Filed Company SEC Documents; or (iv) that are in an amount not in excess of $15,000,000 in the aggregate (in the case of clauses (ii) and (iii), none of which (other than immaterial amounts) results from, arises out of, relates to, or was caused by any breach of Contract, breach of warranty, tort, infringement or violation of Law).
(f) The Company has established and maintains a system of internal control over financial reporting (as defined in Rule 13a-15 under the Exchange Act). Such internal controls are designed to provide reasonable assurance regarding the reliability of the Company’s financial reporting and the preparation of the Company’s financial statements for external purposes in accordance with GAAP. Since March 28, 2010, the Company’s principal executive officer and its principal financial officer have disclosed, based on management’s evaluation in accordance with the requirements of Rule 13a-15 under the Exchange Act, to the Company’s auditors and the audit committee of the Company Board (i) all known significant deficiencies, if any, in the design or operation of internal controls over financial reporting that are reasonably likely to adversely affect in any material respect the Company’s ability to record, process, summarize and report financial information and have identified for the Company’s auditors any material weaknesses in internal controls, and (ii) any known fraud, whether or not material, that involves management or other employees who have a significant role in the Company’s internal controlsXxxxxxx Material Adverse Effect.
(g) The Company has established and maintains disclosure controls and procedures (as such term is defined in Rule 13a-15 under the Exchange Act); such disclosure controls and procedures are designed to ensure that transactions of the Company are being made only in accordance with the authorization of management and directors of the Company and that material information relating to the Company required to be disclosed in reports the Company files under the Exchange Act is recorded and made known to the individuals responsible for the preparation of the Company’s filings with the SEC and other public disclosure documents.
(h) There are no pending (i) formal or, to the knowledge of the Company, informal investigations of the Company by the SEC, (ii) to the knowledge of the Company, inspections of an audit of the Company’s financial statements by the Public Company Accounting Oversight Board or (iii) investigations by the Audit Committee of the Company Board regarding any complaint, allegation, assertion or claim that the Company or any Company Subsidiary has engaged in improper or illegal accounting or auditing practices or maintains improper or inadequate internal accounting controls.
Appears in 1 contract
SEC Documents; Financial Statements; Undisclosed Liabilities. (a) The Company has timely filed or furnished, as applicable, in a timely manner, furnished all reports, schedules, forms, statements statements, registration statements, prospectuses and other documents (including exhibits and other information incorporated therein) with the SEC required to be so filed or furnished, as applicable, by the Company at or after March 28, 2010 under the Securities Act and the Exchange Act (such documents, together with any documents and information incorporated therein by reference and together with any documents filed during such period furnished by the Company with the SEC on Current Reports on Form 8-Kunder the Securities Act or the Exchange Act since January 1, 2014 (the “Company SEC Documents”).
(b) As of its respective filing date, and, if amended, as of the date of the last amendment prior to the date of this Agreement, each Company SEC Document filed on or after March 28, 2010 complied in all material respects with the requirements of the Exchange Act, the Securities Act and the XxxxxxxxSxxxxxxx-Xxxxx Act of 2002 and the related rules and regulations promulgated thereunder or under the Exchange Act (the “Sxxxxxxx-Xxxxx Act”), as the case may be, and the rules and regulations of the SEC promulgated thereunder applicable to such Company SEC Document, each as in effect on the date so filed. As of their respective dates (or, if amended prior to the date hereof, as of the date of such amendment), none of the Company SEC Documents filed on or after March 28, 2010 contained Document and did not contain any untrue statement of a material fact or omitted omit to state any 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, or which, individually or in the aggregate, would require an amendment, supplement or corrective filing of any such Company SEC Document.
(c) . The Company has made available to Parent (to the extent not otherwise publicly available) true and complete copies of all comment letters received from material correspondence between the SEC that (i) relate to SEC, on the Company SEC Documents filed on or after March 29one hand, 2008 or (ii) contain continuing obligations of and the Company, andon the other hand, in each caseoccurring since January 1, all written responses of 2014 and prior to the Company theretodate hereof. As of the date of this Agreementhereof, there are no outstanding or unresolved comments in such comment letters. The Company has not received any written notice letters from the SEC that staff with respect to any of the Company SEC Documents. To the Knowledge of the Company, as of the date hereof, none of the Company SEC Documents is the subject of any ongoing review by the SECSEC review, outstanding SEC comment or outstanding SEC investigation.
(dc) Each of the The financial statements (including the related notes) of the Company included in the Company SEC Documents filed on (including, in each case, any notes or after March 28schedules thereto) (the “Company SEC Financial Statements”) fairly present, 2010, complied at the time it was filed in all material respects with respects, the applicable accounting requirements financial condition and the published rules results of operations, cash flows and regulations changes in stockholders’ equity of the Company as of the respective dates of and for the periods referred to in the Company SEC with respect thereto in effect at the time of filingFinancial Statements, has been and were prepared in accordance with generally accepted accounting principles applied on a basis consistent with the Company’s past practices (“GAAP”) (except, in the case of unaudited statements, as permitted by the rules and regulations of the SEC) GAAP applied on a consistent basis during the periods involved (except as may be indicated in the notes thereto) and fairly presented in all material respects the consolidated financial position of the Company and its consolidated subsidiaries as of the dates thereof and the consolidated results of their operations and cash flows for the periods shown (), subject, in the case of unaudited statementsinterim Company SEC Financial Statements, to normal year-end audit adjustmentsadjustments (none of which are material individually or in the aggregate) and the absence of notes (none of which, if presented, would materially differ from those in the year-end Company SEC Financial Statements). Since March 28The Company SEC Financial Statements were prepared from, 2010and in accordance with, the accounting books and records of the Company in all material respects, and the Company Subsidiaries have been maintained complied as to form in all material respects in accordance with all applicable legal accounting requirements and accounting requirementswith the published rules and regulations of the SEC with respect thereto.
(e) None of the Company or any Company Subsidiary has any liabilities or obligations of any nature (whether accrued, absolute, contingent or otherwise), except liabilities and obligations (i) to the extent disclosed, reflected or reserved against in the most recent financial statements included in the Filed Company SEC Documents; (ii) related to the future performance in the ordinary course of business of any Contract entered into (x) prior to the date of the most recent financial statements included in the Filed Company SEC Documents, (y) in the ordinary course of business after such date, or (z) in connection with, and as contemplated by, this Agreement or the Merger; (iii) incurred or arising in the ordinary course of business since the date of the most recent financial statements included in the Filed Company SEC Documents; or (iv) that are in an amount not in excess of $15,000,000 in the aggregate (in the case of clauses (ii) and (iii), none of which (other than immaterial amounts) results from, arises out of, relates to, or was caused by any breach of Contract, breach of warranty, tort, infringement or violation of Law).
(fd) The Company has established and maintains a system of disclosure controls and procedures and internal control over financial reporting (as such terms are defined in paragraphs (e) and (f), respectively, of Rule 13a-15 and paragraph (e) of Rule 15d-15 under the Exchange Act)) as required by Rules 13a-15 and 15d-15 under the Exchange Act. Such internal The Company’s disclosure controls and procedures are designed to provide reasonable assurance ensure that all information (both financial and non-financial) required to be disclosed by the Company in the reports that it files or furnishes under the Exchange Act is recorded, processed, summarized and reported within the time periods specified in the rules and forms of the SEC, and that all such information is accumulated and communicated to the Company’s management as appropriate to allow timely decisions regarding required disclosure and to make the reliability certifications required pursuant to Sections 302 and 906 of the Sxxxxxxx-Xxxxx Act. The Company’s management has completed an assessment of the effectiveness of the Company’s financial reporting disclosure controls and procedures and, to the preparation extent required by applicable Law, presented in any applicable Company SEC Document that is a report on Form 10-K or Form 10-Q, or any amendment thereto, its conclusions about the effectiveness of the disclosure controls and procedures as of the end of the period covered by such report or amendment based on such evaluation. Based on the Company’s management’s most recently completed evaluation of the Company’s internal control over financial statements for external purposes in accordance with GAAP. Since March 28reporting, 2010, the Company’s principal executive officer and its principal financial officer have disclosed, based on management’s evaluation in accordance with the requirements of Rule 13a-15 under the Exchange Act, to the Company’s auditors and the audit committee of the Company Board (i) all known the Company had no significant deficiencies, if any, deficiencies or material weaknesses in the design or operation of its internal controls control over financial reporting that are would reasonably likely be expected to adversely affect in any material respect the Company’s ability to record, process, summarize and report financial information and have identified for the Company’s auditors any material weaknesses in internal controls, and (ii) the Company does not have Knowledge of any known fraud, whether or not material, that involves management or other employees who have a significant role in the Company’s internal controls.
control over financial reporting. Since January 1, 2014, the Company’s principal executive officer and its principal financial officer have disclosed to the Company’s auditors and the audit committee of the Company Board (gi) all significant deficiencies and material weaknesses in the design or operation of the Company’s internal control over financial reporting that would reasonably be expected to adversely affect the Company’s ability to record, process, summarize and report financial information and (ii) any fraud, whether or not material, that involves management or other employees who have a significant role in the Company’s internal control over financial reporting, and the Company has made available to Parent true and complete copies of any material written materials provided to the Company’s auditors or the audit committee of the Company Board relating to each of the foregoing. The Company has established and maintains disclosure controls and procedures not made any prohibited loans or “extensions of credit” (within the meaning of Section 402 of the Sxxxxxxx-Xxxxx Act) to any executive officer (as such term is defined in Rule 13a-15 3b-7 under the Exchange Act) or director of the Company.
(e) The Company does not have any liabilities or obligations of any nature (whether absolute or contingent, asserted or unasserted, known or unknown, primary or secondary, direct or indirect, and whether or not accrued); such disclosure controls and procedures are designed , required by GAAP to ensure that transactions be reflected or reserved on a balance sheet of the Company are being made only in accordance with (or the authorization of management and directors of the Company and that material information relating to the Company required to be disclosed in reports the Company files under the Exchange Act is recorded and made known to the individuals responsible for the preparation of the Company’s filings with the SEC and other public disclosure documents.
(hnotes thereto) There are no pending except (i) formal or, to as reflected or reserved against in the knowledge of the Company, informal investigations of most recent audited balance sheet included in the Company by SEC Financial Statements or the SECnotes thereto, (ii) to for liabilities and obligations incurred in the knowledge ordinary course of business since the date of the Companymost recent audited balance sheet included in the Company SEC Financial Statements , inspections of an audit of the Company’s financial statements by the Public Company Accounting Oversight Board or (iii) investigations by for liabilities and obligations arising out of or in connection with this Agreement, the Audit Committee of Merger or the Transactions and (iv) for liabilities and obligations that have not had, and would not reasonably be expected to have, a Company Board regarding any complaint, allegation, assertion or claim that the Company or any Company Subsidiary has engaged in improper or illegal accounting or auditing practices or maintains improper or inadequate internal accounting controlsMaterial Adverse Effect.
Appears in 1 contract
Samples: Merger Agreement (Genvec Inc)
SEC Documents; Financial Statements; Undisclosed Liabilities. (a) The Company has filed or furnished, as applicable, in a timely mannerthe case may be, all reports, schedules, forms, statements reports and other documents (including exhibits and other information incorporated therein) with the SEC required to be so filed with or furnished, as applicable, furnished to the SEC by the Company at or after March 28since January 1, 2010 under 2017 pursuant to the Securities Act and the Exchange Act (such documentsthe forms, together with any documents reports and information incorporated therein by reference and together with any other documents filed during such period by or furnished since January 1, 2017 and those filed or furnished subsequent to the Company with date hereof as have been supplemented, modified or amended since the SEC on Current Reports on Form 8-Ktime of filing or furnishing, collectively, the “Company SEC Documents”).
(b) . As of its respective datethe date of filing, each in the case of Company SEC Document Documents filed on or after March 28pursuant to the Exchange Act (and to the extent such Company SEC Documents were amended, 2010 then as of the date of filing of such amendment), and as of the date of effectiveness in the case of Company SEC Documents filed pursuant to the Securities Act (and to the extent such Company SEC Documents were amended, then as of the date of effectiveness of such amendment), the Company SEC Documents (i) complied as to form in all material respects with either the requirements of the Exchange Securities Act, the Securities Exchange Act and or the XxxxxxxxSxxxxxxx-Xxxxx Act of 2002 2002, as the case may be, and the rules and regulations promulgated thereunder applicable to such Company SEC Documentthereunder, each as in effect on the date so filed. As of their respective dates filed or effective and (or, if amended prior to the date hereof, as of the date of such amendment), none of the Company SEC Documents filed on or after March 28, 2010 contained ii) did not contain any untrue statement of a material fact or omitted omit to state any a material fact required to be stated or incorporated by reference therein or necessary in order to make the statements made therein, in light of the circumstances under which they were made, not misleading, misleading as of its filing date or which, individually or in the aggregate, would require an amendment, supplement or corrective filing of any such Company SEC Documenteffective date (as applicable).
(cb) The Company has made available to Parent (to the extent not otherwise publicly available) copies of all comment letters received from the SEC that (i) relate to the Company SEC Documents filed on or after March 29, 2008 or (ii) contain continuing obligations Each of the Company, andconsolidated financial statements (including, in each case, all written responses of the Company any notes thereto. As of the date of this Agreement, there are no outstanding ) contained in or unresolved comments in such comment letters. The Company has not received any written notice from the SEC that any of incorporated by reference into the Company SEC Documents is the subject of any ongoing review by the SEC.
(d) Each of the financial statements (including the related notes) of the Company included in the Company SEC Documents filed on or after March 28, 2010, complied at the time it was filed in all material respects with the applicable accounting requirements and the published rules and regulations of the SEC with respect thereto in effect at the time of filing, has been prepared in accordance with generally accepted accounting principles applied on a basis consistent with the Company’s past practices (“GAAP”) GAAP (except, in the case of the unaudited statements, as permitted by the rules and regulations of the SEC) applied on a consistent basis during throughout the periods involved indicated (except as may be indicated in the notes thereto) and each fairly presented presents, in all material respects respects, the consolidated financial position of the Company and its consolidated subsidiaries Group Companies as of at the respective dates thereof and the consolidated results of their operations and cash flows for the respective periods shown indicated therein (subject, in the case of unaudited statements, to normal year-end audit adjustments). Since March 28, 2010adjustments and to any other adjustments described therein, the accounting books effect of which, individually or in the aggregate, is not material, and records to the exclusion of the Company and the Company Subsidiaries have been maintained in all material respects certain notes in accordance with applicable legal and accounting requirementsthe rules of the SEC relating to unaudited financial statements), in each case in accordance with GAAP except to the extent that such information has been amended or superseded by later Company SEC Documents filed prior to the date hereof.
(ec) None Except as and to the extent set forth in the audited annual financial results of the Group Companies as of December 31, 2017, including the notes thereto, no Group Company has outstanding (i) any Indebtedness or any Company Subsidiary has commitments therefor or (ii) any liabilities other liability or obligations obligation of any nature (whether accrued, absolute, contingent or otherwise), except liabilities and obligations (i) that are required in accordance with GAAP to the extent disclosed, be disclosed or reflected or reserved against in the most recent consolidated financial statements included in of the Filed Group Companies, except for Indebtedness or any commitments therefor or other liabilities or obligations (A) reflected or reserved against on the consolidated balance sheet of the Company SEC Documents; as of December 31, 2017, (iiB) related to the future performance incurred in the ordinary course of business of any Contract entered into (x) prior to the date of the most recent financial statements included in the Filed Company SEC Documentsconsistent with past practice since December 31, 2017, (yC) in the ordinary course of business after such date, or (z) in connection with, and as contemplated by, incurred pursuant to this Agreement or in connection with the Merger; (iii) incurred or arising in the ordinary course of business since the date of the most recent financial statements included in the Filed Company SEC Documents; Transactions or (ivD) that are in an amount do not in excess of $15,000,000 in the aggregate (in the case of clauses (ii) and (iii), none of which (other than immaterial amounts) results from, arises out of, relates to, or was caused by any breach of Contract, breach of warranty, tort, infringement or violation of Law)have a Company Material Adverse Effect.
(fd) The Company has established made available to the Investors complete and maintains a system correct copies of internal control over financial reporting all material amendments and modifications that have not been filed by the Company with the SEC as of the date hereof to all Company Material Contracts that previously had been filed by the Company with the SEC and are in effect as of the date hereof.
(e) The Company has timely filed all certifications and statements required by (i) Rule 13a-14 or Rule 15d-14 under the Exchange Act or (ii) 18 U.S.C. Section 1350 (Section 906 of the Sxxxxxxx-Xxxxx Act of 2002) with respect to any Company SEC Document. The “disclosure controls and procedures” (as defined in Rule 13a-15 Rules 13a-15(e) and 15d-15(e) under the Exchange Act). Such internal controls ) established and maintained by the Company are reasonably designed to provide reasonable assurance regarding ensure that all material information concerning the reliability of Group Companies required to be disclosed by the Company in the reports it files under the Exchange Act is recorded, processed, summarized and reported, within the time periods specified in the SEC’s rules and related forms, and that such information is accumulated and communicated to the Company’s financial reporting and the preparation of the Company’s financial statements for external purposes in accordance with GAAP. Since March 28, 2010, the Company’s principal chief executive officer and its principal chief financial officer have disclosed(or persons performing similar functions), based on management’s evaluation in accordance with as appropriate, to allow timely decisions regarding required disclosure. Since January 1, 2017, neither the requirements of Rule 13a-15 under the Exchange ActCompany nor, to the Company’s auditors and the audit committee Knowledge, its independent registered public accounting firm has identified or been made aware of the Company Board (i) all known any “significant deficiencies, if any, ” or “material weaknesses” (as defined by the Public Company Accounting Oversight Board) in the design or operation of the internal controls over financial reporting and procedures of the Company that are reasonably likely to adversely affect in any material respect the Company’s ability of the Company to record, process, summarize and report financial information and have identified for data, in each case, which has not been subsequently remediated. Except as set forth in Section 3.7(e) of the Company Disclosure Schedule, to the Company’s auditors any material weaknesses in internal controlsKnowledge, there is, and (ii) any known since January 1, 2017, there has been, no fraud, whether or not material, that involves (or involved) the management of the Company or other employees who have (or had) a significant role in the internal controls over financial reporting utilized by the Company. Since the date of the Company’s most recently filed annual report under the Exchange Act, there have been no changes in the Company’s internal controlscontrol over financial reporting (as such term is defined in the Exchange Act) that have materially affected or are reasonably likely to materially affect, the Company’s internal control over financial reporting. As used in this Section 3.7, the term “file” shall be broadly construed to include any manner in which a document or information is furnished, supplied or otherwise made available to the SEC.
(f) The Group Companies maintain a system of “internal control over financial reporting” (as defined in Rules 13a-15(f) and 15d-15(f) under the Exchange Act) sufficient to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements in accordance with GAAP.
(g) The Company has established is in compliance, in all material respects, with the applicable listing and maintains disclosure controls corporate governance rules and procedures regulations of the NASDAQ, subject to availing itself of any “home country” exemption from such rules and regulations available to a “foreign private issuer” (as such term is defined in Rule 13a-15 under the Exchange Act); such disclosure controls and procedures are designed to ensure that transactions of the Company are being made only in accordance with the authorization of management and directors of the Company and that material information relating to the Company required to be disclosed in reports the Company files under the Exchange Act is recorded and made known to under the individuals responsible for the preparation relevant rules and regulations of the Company’s filings with the SEC and other public disclosure documentsNASDAQ).
(h) There are no pending (i) formal or, to the knowledge of the Company, informal investigations of the Company by the SEC, (ii) to the knowledge of the Company, inspections of an audit of the Company’s financial statements by the Public Company Accounting Oversight Board or (iii) investigations by the Audit Committee of the Company Board regarding any complaint, allegation, assertion or claim that the Company or any Company Subsidiary has engaged in improper or illegal accounting or auditing practices or maintains improper or inadequate internal accounting controls.
Appears in 1 contract
Samples: Securities Purchase Agreement (Sinovac Biotech LTD)
