SEC Filings; Financial Statements; Information Provided. (a) All forms, reports and other documents required to be filed by the Company with the SEC since January 1, 2001 (including those that the Company may file after the date hereof until the Closing) are referred to herein as the “Company SEC Reports.” Except as set forth in Section 3.4 of the Company Disclosure Schedule, the Company SEC Reports (i) were or will be filed on a timely basis and (ii) were or will be prepared in compliance in all material respects with the applicable requirements of the Securities Act, and the Exchange Act, as the case may be, applicable to such Company SEC Reports. None of the Company SEC Reports when filed, after giving effect to any amendments and supplements thereto filed prior to the date hereof, 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. None of the Company’s Subsidiaries has filed, or is obligated to file, any forms, reports, schedules, statements or other documents with the SEC. As used in this Section 3.4(a), the term “filed” shall be broadly construed to include any manner in which a document or information is furnished, supplied or otherwise made available to the SEC. (b) Each of the consolidated financial statements (including, in each case, any related notes and schedules) contained or to be contained in the Company SEC Reports (i) complied or will comply as to form in all material respects with applicable accounting requirements and the published rules and regulations of the SEC with respect thereto, (ii) were or will be prepared in accordance with generally accepted accounting principles (“GAAP”) applied on a consistent basis throughout the periods involved (except as may be indicated in the notes to such financial statements or, in the case of unaudited statements, as permitted by the SEC on Form 10-Q under the Exchange Act or for normal year-end adjustments) and (iii) fairly presented or will fairly present the financial position of the Company as of the dates thereof and the results of its operations and cash flows for the periods indicated, except that the unaudited interim financial statements were or are subject to normal and recurring year-end adjustments that have not been and are not expected to be material to the Company. The unaudited balance sheet of the Company as of June 30, 2004 is referred to herein as the “Company Balance Sheet.” (c) The information to be supplied by the Company for inclusion in the registration statement on Form S-4 pursuant to which the Company Series A Preferred Stock issued in the Merger and the Company Common Stock issuable upon conversion of the Company Series A Preferred Stock will be registered under the Securities Act (including any amendments or supplements, the “Registration Statement”), shall not at the time the Registration Statement is declared effective by the SEC contain any untrue statement of a material fact or omit to state any material fact required to be stated in the Registration Statement or necessary in order to make the statements in the Registration Statement not misleading. The information to be supplied by the Company for inclusion in the joint proxy statement/prospectus (the “Proxy Statement”) to be sent to the stockholders of the Company in connection with the meeting of the Company’s stockholders to consider the adoption of this Agreement and the Merger (the “Company Meeting”) and the Partners in connection with the Fund Consent Solicitation (as herein defined) shall not, on the date the Proxy Statement is first mailed to stockholders of the Company and the Partners, at the time of the Company Meeting and at the Effective Time, contain any statement which, at such time and in light of the circumstances under which it shall be made, is false or misleading with respect to any material fact, or omit to state any material fact necessary in order to make the statements made in the Proxy Statement not false or misleading; or omit to state any material fact necessary to correct any statement in any earlier communication with respect to the solicitation of proxies for the Company Meeting or the solicitation of consents in connection with the Fund Consent Solicitation which has become false or misleading. If at any time prior to the Effective Time any event relating to the Company, any Affiliate (as defined below) of the Company, or any officers or directors of any of them, should be discovered by the Company which should be set forth in an amendment to the Registration Statement or a supplement to the Proxy Statement, the Company shall promptly inform the Fund. As used in this Agreement, the term
Appears in 32 contracts
Samples: Merger Agreement (CNL Income Fund Viii LTD), Merger Agreement (CNL Income Fund Iii LTD), Merger Agreement (U S Restaurant Properties Inc)
SEC Filings; Financial Statements; Information Provided. (a) All forms, reports and other documents required to be filed by the Company with the SEC since January 1, 2001 (including those that the Company may file after the date hereof until the Closing) are referred to herein as the “Company SEC Reports.” Except as set forth in Section 3.4 of the Company Disclosure Schedule, the Company SEC Reports (i) were or will be filed on a timely basis and (ii) were or will be prepared in compliance in all material respects with the applicable requirements of the Securities Act, and the Exchange Act, as the case may be, applicable to such Company SEC Reports. None of the Company SEC Reports when filed, after giving effect to any amendments and supplements thereto filed prior to the date hereof, 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. None of the Company’s Subsidiaries has filed, or is obligated to file, any forms, reports, schedules, statements or other documents with the SEC. As used in this Section 3.4(a), the term “filed” shall be broadly construed to include any manner in which a document or information is furnished, supplied or otherwise made available to the SEC.
(b) Each of the consolidated financial statements (including, in each case, any related notes and schedules) contained or to be contained in the Company SEC Reports (i) complied or will comply as to form in all material respects with applicable accounting requirements and the published rules and regulations of the SEC with respect thereto, (ii) were or will be prepared in accordance with generally accepted accounting principles (“GAAP”) applied on a consistent basis throughout the periods involved (except as may be indicated in the notes to such financial statements or, in the case of unaudited statements, as permitted by the SEC on Form 10-Q under the Exchange Act or for normal year-end adjustments) and (iii) fairly presented or will fairly present the financial position of the Company as of the dates thereof and the results of its operations and cash flows for the periods indicated, except that the unaudited interim financial statements were or are subject to normal and recurring year-end adjustments that have not been and are not expected to be material to the Company. The unaudited balance sheet of the Company as of June 30, 2004 is referred to herein as the “Company Balance Sheet.”
(c) The information to be supplied by the Company for inclusion in the registration statement on Form S-4 pursuant to which the Company Series A Preferred Stock issued in the Merger and the Company Common Stock issuable upon conversion of the Company Series A Preferred Stock will be registered under the Securities Act (including any amendments or supplements, the “Registration Statement”), shall not at the time the Registration Statement is declared effective by the SEC contain any untrue statement of a material fact or omit to state any material fact required to be stated in the Registration Statement or necessary in order to make the statements in the Registration Statement not misleading. The information to be supplied by the Company for inclusion in the joint proxy statement/prospectus (the “Proxy Statement”) to be sent to the stockholders of the Company in connection with the meeting of the Company’s stockholders to consider the adoption of this Agreement and the Merger (the “Company Meeting”) and the Partners in connection with the Fund Consent Solicitation (as herein defined) shall not, on the date the Proxy Statement is first mailed to stockholders of the Company and the Partners, at the time of the Company Meeting and at the Effective Time, contain any statement which, at such time and in light of the circumstances under which it shall be made, is false or misleading with respect to any material fact, or omit to state any material fact necessary in order to make the statements made in the Proxy Statement not false or misleading; or omit to state any material fact necessary to correct any statement in any earlier communication with respect to the solicitation of proxies for the Company Meeting or the solicitation of consents in connection with the Fund Consent Solicitation which has become false or misleading. If at any time prior to the Effective Time any event relating to the Company, any Affiliate (as defined below) of the Company, or any officers or directors of any of them, should be discovered by the Company which should be set forth in an amendment to the Registration Statement or a supplement to the Proxy Statement, the Company shall promptly inform the Fund. As used in this Agreement, the termterm “Affiliate” shall have the same meaning as such term is defined in Rule 405 promulgated under the Securities Act. The Registration Statement shall comply in all material respects as to form and substance with the requirements of the Securities Act. The Proxy Statement shall comply in all material respects as to form and substance with the requirements of the Exchange Act. The Company makes no representation or warranty with respect to any information supplied by the Fund which is contained in the Registration Statement or Proxy Statement.
Appears in 4 contracts
Samples: Merger Agreement (CNL Income Fund Xii LTD), Merger Agreement (U S Restaurant Properties Inc), Merger Agreement (CNL Income Fund Xi LTD)
SEC Filings; Financial Statements; Information Provided. (a) All The Company has filed or furnished (as applicable) all registration statements, forms, reports reports, certifications and other documents required to be filed by the Company with the SEC since January 1, 2001 2006. All such registration statements, forms, reports and other documents (including those that the Company may file after the date hereof until the Closing) are referred to herein as the “Company SEC Reports.,” Except as set forth in Section 3.4 of and the Company Disclosure Schedule, has made available to the Parent copies of all Company SEC Reports to the extent not available on the SEC’s XXXXX system. The Company SEC Reports (i) were or will be filed on a timely basis and basis, (ii) were at the time filed, complied, or will be prepared in compliance comply when filed, as to form in all material respects with the applicable requirements of the Securities Act, Act and the Exchange Act, as the case may be, Act applicable to such Company SEC Reports. None of Reports and (iii) did not or will not at the Company SEC Reports when filed, after giving effect to any amendments and supplements thereto time they were or are filed prior to the date hereof, contained contain any untrue statement of a material fact or omitted omit to state any a material fact required to be stated therein in such Company SEC Reports or necessary in order to make the statements thereinin such Company SEC Reports, in the light of the circumstances under which they were made, not misleadingmisleading in any material respect. None No Subsidiary of the Company’s Subsidiaries has filedCompany is required to file any form, or is obligated to file, any forms, reports, schedules, statements report or other documents document with the SEC. As used in this Section 3.4(a), 3.5 of the term “filed” shall be broadly construed to include any manner in which a document Company Disclosure Schedule lists all effective registration statements filed by the Company on Form S-3 or information is furnished, supplied Form S-8 or otherwise made available to relying on Rule 415 under the SECSecurities Act.
(b) Each of the consolidated financial statements (including, in each case, any related notes and schedules) contained or to be contained in the Company SEC Reports at the time filed, and giving effect to any amendments or supplements thereto filed prior to the date of this Agreement, (i) complied or will comply as to form in all material respects with applicable accounting requirements and the published rules and regulations of the SEC with respect thereto, (ii) were or will be prepared in accordance with United States generally accepted accounting principles (“GAAP”) applied on a consistent basis throughout the periods involved (except as may be indicated in the notes to such financial statements or, in the case of unaudited interim financial statements, as permitted by the SEC on Form 10-Q under the Exchange Act or for normal year-end adjustments) Act), and (iii) fairly presented or will fairly present in all material respects the consolidated financial position of the Company and its Subsidiaries as of the dates thereof indicated and the consolidated results of its operations and cash flows for the periods indicated, except that the unaudited interim financial statements were or are subject to normal and recurring year-end adjustments that have which were or will not been and are not expected to be material to the Companyin amount or effect. The unaudited consolidated audited balance sheet of the Company as of June 30December 31, 2004 2008 set forth in the Company’s Annual Report on Form 10-K for the year ended December 31, 2008 is referred to herein as the “Company Balance Sheet.”
(c) The information to be supplied by or on behalf of the Company for inclusion in the registration statement Schedule TO or the Offer Documents on Form S-4 pursuant to which the Company Series A Preferred Stock issued in date the Merger Schedule TO is filed with the SEC and on the Company Common Stock issuable upon conversion of date the Company Series A Preferred Stock will be registered under the Securities Act (Offer Documents, including any amendments thereof and supplements thereto, are first published, sent or supplements, the “Registration Statement”)given to holders of shares of Company Common Stock, shall not at the time the Registration Statement is declared effective by the SEC contain any untrue statement of a material fact or omit to state any material fact required to be stated in the Registration Statement therein or necessary in order to make the statements in the Registration Statement therein not misleading. , in light of the circumstances in which they shall be made.
(d) The information to be supplied by Company is in compliance in all material respects with the Company for inclusion in applicable provisions of the joint proxy statement/prospectus Xxxxxxxx-Xxxxx Act of 2002 (the “Proxy StatementXxxxxxxx-Xxxxx Act”). Each required form, report and document (including any amendment thereof and supplement thereto) containing financial statements that has been filed with or submitted or will be filed with or submitted to the SEC since January 1, 2006 was or will be accompanied by the certifications required to be sent filed or submitted by the Company’s principal executive officer and principal financial officer pursuant to the stockholders Xxxxxxxx-Xxxxx Act and Rule 13a-14 or 15d-14 promulgated under the Exchange Act and, at the time of filing or submission of each such certification, such certification complied or will comply in all material respects with the applicable provisions of the Xxxxxxxx-Xxxxx Act and Rule 13a-14 or 15d-14 promulgated under the Exchange Act.
(e) The Company maintains a system of internal accounting controls designed to provide reasonable assurance that (i) transactions are executed in connection accordance with management’s general or specific authorizations; (ii) access to assets is permitted only in accordance with management’s general or specific authorization; and (iii) the recorded accountability for assets is compared with the meeting existing assets at reasonable intervals and appropriate action is taken with respect to any differences. The Company maintains disclosure controls and procedures required by Rule 13a-15 or 15d-15 under the Exchange Act. Such disclosure controls and procedures are designed to ensure that all material information concerning the Company is made known on a timely basis to the individuals responsible for the preparation of the Company’s stockholders filings with the SEC and other public disclosure documents. Between the date of the filing of the Company’s most recent quarterly report on Form 10-Q prior to consider the adoption date of this Agreement and the Merger (the “Company Meeting”) and the Partners in connection with the Fund Consent Solicitation (as herein defined) shall not, on the date the Proxy Statement is first mailed to stockholders of the Company and the Partners, at the time of the Company Meeting and at the Effective Time, contain any statement which, at such time and in light of the circumstances under which it shall be made, is false or misleading with respect to any material fact, or omit to state any material fact necessary in order to make the statements made in the Proxy Statement not false or misleading; or omit to state any material fact necessary to correct any statement in any earlier communication with respect to the solicitation of proxies for the Company Meeting or the solicitation of consents in connection with the Fund Consent Solicitation which has become false or misleading. If at any time prior to the Effective Time any event relating to the Company, any Affiliate (as defined below) of the Company, or any officers or directors of any of them, should be discovered by the Company which should be set forth in an amendment to the Registration Statement or a supplement to the Proxy Statement, the Company shall promptly inform the Fund. As used in this Agreement, the termCompany’s outside auditors and the audit committee of the Company Board have not been advised of (A) any significant deficiencies or material weaknesses in the design or operation of internal control over financial reporting which adversely affect the Company’s ability to record, process, summarize and report financial information, and (B) any fraud, whether or not material, that involves management or other employees who have a significant role in the Company’s internal control over financial reporting. Any material change in internal control over financial reporting and any significant deficiency or material weakness in the design or operation of internal control over financial reporting required to be disclosed in any Company SEC Report or in any form, report or document filed by the Company with the SEC has been so disclosed and each significant deficiency and material weakness previously so disclosed has been remediated. The Company is in compliance in all material respects with the applicable listing and other rules and regulations of The Nasdaq Stock Market.
(f) The Company is not a party to, or does not have any commitment to become a party to, any joint venture, off-balance sheet partnership or any similar contract (including any contract or arrangement relating to any transaction or relationship between or among the Company, on the one hand, and any unconsolidated affiliate, including any structured finance, special purpose or limited purpose entity or person, on the other hand, or any “off-balance sheet arrangements” (as defined in Item 303(a) of Regulation S-K under 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 in the Company’s published financial statements or other Company SEC Reports.
Appears in 3 contracts
Samples: Merger Agreement (Aspect Medical Systems Inc), Merger Agreement (Covidien PLC), Merger Agreement (Aspect Medical Systems Inc)
SEC Filings; Financial Statements; Information Provided. (a) The Company has provided to the Buyer true and complete copies of all Company SEC Reports filed with the SEC prior to the date hereof. All registration statements, forms, reports and other documents required to be filed by the Company with the SEC since January 1, 2001 (including those that the Company may file after the date hereof until the Closing) filed with the SEC are referred to herein as the “Company SEC Reports.” Except as set forth in Section 3.4 3.4(a) of the Company Disclosure Schedule, the Company SEC Reports (i) were or will be filed on a timely basis and basis, (ii) at the time filed, were or will be prepared in compliance in all material respects with the applicable requirements of the Securities Act of 1933, as amended (the “Securities Act”), and the Exchange Act, as the case may be, and, if applicable, the Xxxxxxxx-Xxxxx Act of 2002 (the “Xxxxxxxx-Xxxxx Act”), and the rules and regulations of the SEC thereunder applicable to such Company SEC Reports. None of , and (iii) did not or will not at the Company SEC Reports when filed, after giving effect to any amendments and supplements thereto time they were or are filed prior to the date hereof, contained contain any untrue statement of a material fact or omitted omit to state any a material fact required to be stated therein in such Company SEC Reports or necessary in order to make the statements thereinin such Company SEC Reports, in light of the circumstances under which they were made, not misleading. None No Subsidiary of the Company’s Subsidiaries Company is subject to the reporting requirements of Section 13(a) or Section 15(d) of the Exchange Act. Since March 7, 2000, the Company has filedfiled with the SEC all registration statements, or is obligated to file, any forms, reports, schedules, statements or reports and other documents with required to be filed under the SEC. As used in this Section 3.4(a)Securities Act, the term “filed” shall Exchange Act, the Xxxxxxxx-Xxxxx Act and the rules and regulations of the SEC thereunder (including those that are required to be broadly construed to include any manner in which a document or information is furnished, supplied or otherwise made available to filed after the SECdate hereof until the Closing).
(b) Each Except as set forth in Section 3.4(b) of the Company Disclosure Schedule, each of the consolidated financial statements (including, in each case, any related notes and schedules) contained or to be contained in the Company SEC Reports at the time filed (i) complied or will comply as to form in all material respects with applicable accounting requirements and the published rules and regulations of the SEC with respect thereto, including the Xxxxxxxx-Xxxxx Act, (ii) were or will be prepared in accordance with United States generally accepted accounting principles (“GAAP”) applied on a consistent basis throughout the periods involved (except as may be indicated in the notes to such financial statements or, in the case of unaudited interim financial statements, as permitted by the SEC on Form 10-Q under the Exchange Act or for normal year-end adjustmentsAct) and (iii) fairly presented or will fairly present the consolidated financial position of the Company and its Subsidiaries as of the dates thereof indicated and the consolidated results of its operations and cash flows for the periods indicated, consistent with the books and records of the Company and its Subsidiaries, except that the unaudited interim financial statements were or are subject to normal and recurring year-end adjustments that have which were not been and or are not expected to be material to the Companyin amount. The unaudited consolidated, audited balance sheet of the Company as of June 30December 31, 2004 2003 is referred to herein as the “Company Balance Sheet.”
(c) The information to be supplied by the Company for inclusion Included in the registration statement on Form S-4 pursuant to which the Company Series A Preferred Stock issued in the Merger and the Company Common Stock issuable upon conversion Section 3.4(c) of the Company Series A Preferred Stock will be registered under Disclosure Schedule are the Securities Act (including any amendments or supplementsaudited consolidated balance sheet, the “Registration Statement”)statements of operations, shall not at the time the Registration Statement is declared effective by the SEC contain any untrue statement of a material fact or omit to state any material fact required to be stated in the Registration Statement or necessary in order to make the statements in the Registration Statement not misleading. The information to be supplied by the Company for inclusion in the joint proxy statement/prospectus (the “Proxy Statement”) to be sent to the stockholders of the Company in connection with the meeting of the Company’s stockholders to consider the adoption of this Agreement stockholders’ equity and the Merger (the “Company Meeting”) and the Partners in connection with the Fund Consent Solicitation (as herein defined) shall not, on the date the Proxy Statement is first mailed to stockholders cash flows of the Company and its Subsidiaries as of December 31, 2003 and for the Partnersyear then ended (the “Audited Financial Statements”). The Audited Financial Statements (i) comply in all material respects with applicable accounting requirements and the published rules and regulations of the SEC with respect thereto, at including the time Xxxxxxxx-Xxxxx Act, (ii) were prepared in accordance with GAAP applied on a consistent basis throughout the periods involved (except as may be indicated in the notes to such financial statements) and (iii) fairly present the consolidated financial position of the Company Meeting and at the Effective Time, contain any statement which, at such time and in light its Subsidiaries as of the circumstances under which it shall be made, is false or misleading with respect to any material fact, or omit to state any material fact necessary in order to make dates indicated and the statements made in the Proxy Statement not false or misleading; or omit to state any material fact necessary to correct any statement in any earlier communication with respect to the solicitation consolidated results of proxies its operations and cash flows for the Company Meeting or the solicitation of consents in connection periods indicated, consistent with the Fund Consent Solicitation which has become false or misleading. If at any time prior to the Effective Time any event relating to the Company, any Affiliate (as defined below) books and records of the Company, or any officers or directors of any of them, should be discovered by the Company which should be set forth in an amendment to the Registration Statement or a supplement to the Proxy Statement, the Company shall promptly inform the Fund. As used in this Agreement, the termand its Subsidiaries.
Appears in 3 contracts
Samples: Merger Agreement (Infospace Inc), Merger Agreement (Infospace Inc), Merger Agreement (Epresence Inc)
SEC Filings; Financial Statements; Information Provided. (a) All The Parent has filed all registration statements, forms, reports and other documents required to be filed by the Company Parent with the SEC since January 1, 2001 2004 and has made available to the Company copies of all registration statements, forms, reports and other documents filed by the Parent with the SEC since such date, all of which are publicly available on the SEC’s XXXXX system. All such registration statements, forms, reports and other documents (including those that the Company Parent may file after the date hereof until the Closing) ), and any information about Genaissance Pharmaceuticals, Inc. included or incorporated into Parent’s Registration Statement on Form S-4 (Registration No. 333-127256), as amended from time to time, are referred to herein as the “Company Parent SEC Reports.” Except as set forth in Section 3.4 of the Company Disclosure Schedule, the Company The Parent SEC Reports (i) were or will be filed on a timely basis and basis, (ii) at the time filed, were or will be prepared in compliance in all material respects with the applicable requirements of the Securities Act, Act and the Exchange Act, as the case may be, and the rules and regulations of the SEC thereunder applicable to such Company Parent SEC Reports. None of , and (iii) did not or will not at the Company SEC Reports when filed, after giving effect to any amendments and supplements thereto time they were or are filed prior to the date hereof, contained contain any untrue statement of a material fact or omitted omit to state any a material fact required to be stated therein in such Parent SEC Reports or necessary in order to make the statements thereinin such Parent SEC Reports, in the light of the circumstances under which they were made, not misleading. None No Subsidiary of the Company’s Subsidiaries has filed, or Parent is obligated to file, any forms, reports, schedules, statements or other documents with the SEC. As used in this Section 3.4(a), the term “filed” shall be broadly construed to include any manner in which a document or information is furnished, supplied or otherwise made available subject to the SECreporting requirements of Section 13(a) or Section 15(d) of the Exchange Act.
(b) Each of the consolidated financial statements (including, in each case, any related notes and schedules) of Parent or Genaissance Pharmaceuticals, Inc. contained or to be contained in the Company Parent SEC Reports at the time filed (i) complied or will comply as to form in all material respects with applicable accounting requirements and the published rules and regulations of the SEC with respect thereto, (ii) were or will be prepared in accordance with generally accepted accounting principles (“GAAP”) GAAP applied on a consistent basis throughout the periods involved (except as may be indicated in the notes to such financial statements or, in the case of unaudited statements, as permitted by the SEC on Form 10-Q under the Exchange Act or for normal year-end adjustmentsAct) and (iii) fairly presented or will fairly present the consolidated financial position of the Company Parent and its Subsidiaries as of the dates thereof and the consolidated results of its operations and cash flows for the periods indicated, consistent with the books and records of the Parent and its Subsidiaries, except that the unaudited interim financial statements were or are subject to normal and recurring year-end adjustments that have which were not been and or are not expected to be material to the Companyin amount. The consolidated, unaudited balance sheet of the Company Parent as of June 30, 2004 3004 is referred to herein as the “Company Parent Balance Sheet.”
(c) The information to be in the Registration Statement or in any Regulation M-A Filing (except, in each case, for information supplied by or on behalf of the Company for inclusion or incorporation by reference in the registration statement on Form S-4 pursuant Registration Statement or Regulation M-A Filing, as to which the Company Series A Preferred Stock issued in the Merger Parent makes no representation and the Company Common Stock issuable upon conversion which shall not constitute part of the Company Series A Preferred Stock will be registered under the Securities Act (including any amendments or supplements, the “Registration Statement”), Parent SEC Reports for purposes of this Agreement) shall not at the time the Registration Statement or any Regulation M-A Filing is filed with the SEC, at any time the Registration Statement is amended or supplemented, or at the time the Registration Statement is declared effective by the SEC (as applicable), contain any untrue statement of a material fact or omit to state any material fact required to be stated in the Registration Statement therein or necessary in order to make the statements in the Registration Statement therein not misleading. The information to be supplied by or on behalf of the Company Parent for inclusion in the joint proxy statement/prospectus (the “Proxy Statement”) /Prospectus (which shall be deemed to be sent include all information about or relating to the stockholders of the Company in connection with the meeting of the Company’s stockholders to consider the adoption of this Agreement and the Merger (the “Company Meeting”) and the Partners in connection with the Fund Consent Solicitation (as herein definedParent) shall not, on the date the Proxy Statement Statement/Prospectus is first mailed to stockholders of the Company and the PartnersCompany, or at the time of the Company Stockholders Meeting and or at the Effective Time, contain any statement which, at such time and in light of the circumstances under which it shall be made, is false or misleading with respect to any material fact, or omit to state any material fact necessary in order to make the statements made in the Proxy Statement Statement/Prospectus not false or misleading; or omit to state any material fact necessary to correct any statement in any earlier communication with respect to the solicitation of proxies for the Company Stockholders Meeting or the solicitation of consents in connection with the Fund Consent Solicitation which has become false or misleading. If at any time prior to the Effective Time any fact or event relating to the Company, any Affiliate (as defined below) of the Company, Parent or any officers or directors of any of them, should be discovered by the Company its Affiliates which should be set forth in an amendment to the Registration Statement or a supplement to the Proxy Statement/Prospectus should be discovered by the Parent or should occur, the Company Parent shall promptly inform the Fund. As used in this Agreement, the termCompany of such fact or event.
Appears in 2 contracts
Samples: Merger Agreement (Icoria, Inc.), Merger Agreement (Clinical Data Inc)
SEC Filings; Financial Statements; Information Provided. (a) All formsThe Company has filed or furnished all registration statements, reports reports, schedules and other documents required to be filed or furnished by the Company it or any of its Subsidiaries with the SEC since January 1December 31, 2001 2003 (collectively, including those that the Company may file after the date hereof until the Closing) are referred to herein as any amendments thereto, the “Company SEC Reports.” Except ”). As of their respective filing dates (or, if amended, as set forth in Section 3.4 of the Company Disclosure Scheduledate of such amendment), the Company SEC Reports (i) were or will be filed on a timely basis and (ii) were or will be prepared in compliance accordance with, and complied in all material respects with with, the applicable requirements of the Securities Act, Exchange Act and the Exchange Securities Act, as the case may be, applicable to such Company and the rules and regulations of the SEC Reports. None promulgated thereunder, and none of the Company SEC Reports when filed, after giving effect to any amendments and supplements thereto filed prior to the date hereof, contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements made therein, in light of the circumstances under which they were made, not misleading, except to the extent corrected by a Company SEC Report filed subsequently (but prior to the date hereof). The Company has made available to Buyer complete and correct copies of all amendments and modifications effected prior to the date of this Agreement that have not yet been filed by the Company with the SEC but which are required to be filed. The Company has made available to Buyer true, correct and complete copies of all correspondence between the SEC, on the one hand, and the Company and any of its Subsidiaries, on the other, since December 31, 2003, including all SEC comment letters and responses to such comment letters by or on behalf of the Company. To the knowledge of the Company, as of the date hereof, none of the Company SEC Reports is the subject of ongoing SEC review or outstanding SEC comment. Each of the financial statements (including the related notes and schedules) of the Company included in, or incorporated by reference into, the Company SEC Reports (the “Company Financials”) complies in all material respects with applicable accounting requirements and the published rules and regulations of the SEC with respect thereto, were prepared in accordance with United States generally accepted accounting principles (“GAAP”) (except, in the case of unaudited financial statements, as permitted by 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 present in all material respects the consolidated financial position of the Company and its consolidated Subsidiaries as of the dates thereof and their consolidated results of operations for the periods then ended (subject, in the case of unaudited financial statements, to normal year-end audit adjustments and the absence of footnotes). The Company has no current intention to correct or restate, and to the knowledge of the Company, there is not any basis to correct or restate any of the Company Financials. The Company has not had any disagreement with any of its auditors regarding material accounting matters or policies during any of its past three full fiscal years or during the current fiscal year-to-date.
(b) None of the information supplied or to be supplied by or on behalf of the Company for inclusion or incorporation by reference in the registration statement on Form S-4 (or similar successor form) to be filed with the SEC by Buyer in connection with the issuance of Buyer Common Stock in the Merger (including amendments or supplements thereto) (the “Registration Statement”) will, at the time the Registration Statement becomes effective under the Securities Act, contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were are made, not misleading. None of the Company’s Subsidiaries has filed, or is obligated to file, any forms, reports, schedules, statements or other documents with the SEC. As used in this Section 3.4(a), the term “filed” shall be broadly construed to include any manner in which a document or information is furnished, supplied or otherwise made available to the SEC.
(b) Each of the consolidated financial statements (including, in each case, any related notes and schedules) contained or to be contained in the Company SEC Reports (i) complied or will comply as to form in all material respects with applicable accounting requirements and the published rules and regulations of the SEC with respect thereto, (ii) were or will be prepared in accordance with generally accepted accounting principles (“GAAP”) applied on a consistent basis throughout the periods involved (except as may be indicated in the notes to such financial statements or, in the case of unaudited statements, as permitted by the SEC on Form 10-Q under the Exchange Act or for normal year-end adjustments) and (iii) fairly presented or will fairly present the financial position of the Company as of the dates thereof and the results of its operations and cash flows for the periods indicated, except that the unaudited interim financial statements were or are subject to normal and recurring year-end adjustments that have not been and are not expected to be material to the Company. The unaudited balance sheet of the Company as of June 30, 2004 is referred to herein as the “Company Balance Sheet.”
(c) The information to be supplied by or on behalf of the Company for inclusion or incorporation by reference in the registration statement on Form S-4 pursuant Prospectus/Proxy Statement to which be filed with the Company Series A Preferred Stock issued in the Merger and the Company Common Stock issuable upon conversion SEC as part of the Company Series A Preferred Stock will be registered under the Securities Act Registration Statement (including any amendments or supplements, the “Registration Prospectus/Proxy Statement”), shall not will, at the time the Registration Prospectus/Proxy Statement is declared effective by first mailed to the SEC stockholders of the Company or at the time of the Company Stockholders Meeting or as of the Effective Time, contain any untrue statement of a material fact or omit to state any material fact required to be stated in the Registration Statement therein or necessary in order to make the statements therein, in the Registration Statement not misleading. The information to be supplied by the Company for inclusion in the joint proxy statement/prospectus (the “Proxy Statement”) to be sent to the stockholders of the Company in connection with the meeting of the Company’s stockholders to consider the adoption of this Agreement and the Merger (the “Company Meeting”) and the Partners in connection with the Fund Consent Solicitation (as herein defined) shall not, on the date the Proxy Statement is first mailed to stockholders of the Company and the Partners, at the time of the Company Meeting and at the Effective Time, contain any statement which, at such time and in light of the circumstances under which it shall be they are made, is false or misleading with respect to any material fact, or omit to state any material fact necessary in order to make the statements made in the Proxy Statement not false or misleading; or omit to state any material fact necessary to correct any statement in any earlier communication with respect to the solicitation of proxies for the Company Meeting or the solicitation of consents in connection with the Fund Consent Solicitation which has become false or misleading. If at any time prior to the Effective Time Company Stockholders Meeting any fact or event relating to the Company, any Affiliate (as defined below) of the Company, Company or any officers or directors of any of them, should be discovered by the Company its Affiliates which should be set forth in an amendment or supplement to the Prospectus/Proxy Statement should be discovered by the Company or should occur, the Company shall, promptly after becoming aware thereof, inform Buyer of such fact or event. Notwithstanding the foregoing, no representation or warranty is made by the Company with respect to statements made or incorporated by reference therein about Buyer or Merger Sub supplied by Buyer or Merger Sub for inclusion or incorporation by reference in the Registration Statement or a supplement to the Prospectus/Proxy Statement, the Company shall promptly inform the Fund. As used in For purposes of this Agreement, the termterm “Affiliate” when used with respect to any Person shall mean any Person who is an “affiliate” of that Person within the meaning of Rule 405 under the Securities Act.
(c) The Company maintains disclosure controls and procedures as required by Rule 13a-15 or 15d-15 under the Exchange Act to ensure that all material information concerning the Company and its Subsidiaries is made known on a timely basis to the individuals responsible for the preparation of the Company’s filings with the SEC and other public disclosure documents, and all such material information that is 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. The Company has established and maintains a system of internal controls over financial reporting required by Rules 13a-15(f) or 15d-15(f) of the Exchange Act sufficient to provide reasonable assurances regarding the reliability of financial reporting and the preparation of its consolidated financial statements in accordance with GAAP including policies and procedures that (i) require the maintenance of records that, in reasonable detail, accurately and fairly reflect the transactions and dispositions of the assets of the Company and its Subsidiaries, (ii) provide reasonable assurance that material information relating to the Company and its Subsidiaries is promptly made known to the officers responsible for establishing and maintaining the system of internal controls, (iii) provide assurance that transactions are recorded as necessary to permit preparation of financial statements in accordance with GAAP, and that receipts and expenditures of the Company and its Subsidiaries are being made only in accordance with appropriate authorizations of management and the Company Board, (iv) provide reasonable assurance that access to assets is permitted only in accordance with management’s general or specific authorization, (v) provide reasonable assurance that the reporting of assets is compared with existing assets at regular intervals and appropriate action is taken with respect to any differences, (vi) provide reasonable assurance regarding prevention or timely detection of unauthorized acquisition, use or disposition of the assets of the Company and its Subsidiaries and (vii) provide assurance that any significant deficiencies or material weaknesses in the design or operation of internal controls which are reasonably likely to materially and adversely affect the ability to record, process, summarize and report financial information, and any fraud, whether or not material, that involves the Company’s management or other employees who have a role in the preparation of financial statements or the internal controls utilized by the Company and its Subsidiaries, are adequately and promptly disclosed to the Company’s independent auditors and the audit committee of the Company’s Board of Directors. The Company has disclosed, based on its most recent evaluations, to the Company’s outside auditors and the audit committee of the Company Board (A) all significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting (as defined in Rule 13a-15(f) under the Exchange Act) which are known to the Company and (B) any fraud, whether or not material, known to the Company that involves management or other employees who have a role in the preparation of financial statements or the Company’s internal control over financial reporting. The principal executive officer and principal financial officer of the Company have made all certifications required by the Xxxxxxxx-Xxxxx Act of 2002 and any related rules and regulations promulgated thereunder (the “Xxxxxxxx-Xxxxx Act”).
Appears in 2 contracts
Samples: Merger Agreement (@Road, Inc), Merger Agreement (Trimble Navigation LTD /Ca/)
SEC Filings; Financial Statements; Information Provided. (a) All The Company has filed all registration statements, forms, reports and other documents required to be filed by the Company with the SEC Securities and Exchange Commission (the “SEC”) since January 1November 30, 2001 2010. All such registration statements, forms, reports and other documents filed after such date (including those that the Company may file after the date hereof until the Closing) are referred to herein as the “Company SEC Reports.” Except as set forth in Section 3.4 of the Company Disclosure Schedule, the The Company SEC Reports (i) were or will be filed on a timely basis and basis, (ii) were at the time filed, complied, or will be prepared in compliance comply when filed, as to form in all material respects with the applicable requirements of the Securities Act, Act and the Exchange Act, as the case may be, and the rules and regulations of the SEC thereunder applicable to such Company SEC Reports. None of Reports and (iii) did not or will not at the Company SEC Reports when filed, after giving effect to any amendments and supplements thereto time they were or are filed prior to the date hereof, contained contain any untrue statement of a material fact or omitted omit to state any a material fact required to be stated therein in such Company SEC Reports or necessary in order to make the statements thereinin such Company SEC Reports, in the light of the circumstances under which they were made, not misleading. None As of the Company’s Subsidiaries date of this Agreement, there are no outstanding or unresolved comments in comment letters received from the SEC or its staff. There has filedbeen no material correspondence between the SEC and the Company since November 30, or 2010 that is obligated to file, any forms, reports, schedules, statements or other documents with not available on the SEC’s Electronic Data Gathering and Retrieval database. As used in this Section 3.4(a), No Subsidiary of the term “filed” shall be broadly construed to include any manner in which a document or information Company is furnished, supplied or otherwise made available subject to the SECreporting requirements of Section 13(a) or Section 15(d) of the Exchange Act.
(b) Each of the consolidated financial statements (including, in each case, any related notes and schedules) contained or incorporated by reference or to be contained or incorporated by reference in the Company SEC Reports at the time filed (i) complied or will comply as to form in all material respects with applicable accounting requirements and the published rules and regulations of the SEC with respect thereto, (ii) were or will be prepared in accordance with United States generally accepted accounting principles (“GAAP”) applied on a consistent basis throughout the periods involved (except as may be indicated in the notes to such financial statements or, in the case of unaudited interim financial statements, as permitted by the SEC on Form 10-Q under the Exchange Act or for normal year-end adjustmentsAct) and (iii) fairly presented or will fairly present in all material respects the consolidated financial position of the Company and its Subsidiaries as of the dates thereof indicated and the consolidated results of its their operations and cash flows for the periods indicated, except that the unaudited interim financial statements were or are subject to normal and recurring year-end adjustments that have not been and are not expected to be material to the Companyadjustments. The unaudited consolidated, audited balance sheet of the Company as of June 30October 2, 2004 2012 is referred to herein as the “Company Balance Sheet.”
(c) The information to be supplied by or on behalf of the Company for inclusion in the registration proxy statement on Form S-4 pursuant to which the Company Series A Preferred Stock issued in the Merger and the Company Common Stock issuable upon conversion of the Company Series A Preferred Stock will be registered under the Securities Act (including any amendments or supplements, the “Registration Statement”), shall not at the time the Registration Statement is declared effective by the SEC contain any untrue statement of a material fact or omit to state any material fact required to be stated in the Registration Statement or necessary in order to make the statements in the Registration Statement not misleading. The information to be supplied by the Company for inclusion in the joint proxy statement/prospectus (the “Proxy Statement”) to be sent to the stockholders shareholders of the Company in connection with the meeting of the Company’s stockholders Company Shareholder Meeting (as amended or supplemented from time to consider the adoption of this Agreement time and the Merger (including any document incorporated by reference therein, the “Company MeetingProxy Statement”) and the Partners in connection with the Fund Consent Solicitation (as herein defined) shall not, on the date the Proxy Statement is first mailed to stockholders shareholders of the Company and or on any other date of filing with the PartnersSEC, or at the time of the Company Meeting and at the Effective TimeShareholder Meeting, contain any statement whichthat, at such time and in light of the circumstances under which it shall be made, is false or misleading with respect to any material fact, or omit to state any material fact necessary in order to make the statements made in the Proxy Statement therein not false or misleadingmisleading in light of the circumstances under which they were or shall be made; or omit to state any material fact necessary to correct any statement in any earlier communication with respect to the solicitation of proxies for the Company Shareholder Meeting or the solicitation of consents in connection with the Fund Consent Solicitation which that has become false or misleading. The Proxy Statement will comply as to form in all material respects with the requirements of the Exchange Act. If at any time prior to before the Effective Time Company Shareholder Meeting any fact or event relating to the Company, any Affiliate (as defined below) of the Company, Company or any officers or directors of any of them, should be discovered by the Company which its Affiliates that should be set forth in an amendment to the Registration Statement or a supplement to the Proxy StatementStatement should be discovered by the Company or should, to the Company’s knowledge, occur, the Company shall shall, promptly after becoming aware thereof, inform the FundParent of such fact or event. As used in For purposes of this Agreement, the termterm “Affiliate” when used with respect to any party means any person who is an “affiliate” of that party within the meaning of Rule 405 promulgated under the Securities Act.
(d) The Company maintains disclosure controls and procedures required by Rule 13a-15 or 15d-15 under the Exchange Act. Such disclosure controls and procedures are effective to ensure that all information required to be disclosed by the Company, including its Subsidiaries, in the reports that it files or submits under the Exchange Act, is accumulated and communicated to the Company’s management, including its Chief Executive Officer and Chief Financial Officer, as appropriate to allow timely decisions regarding required disclosure. Since November 30, 2011, subject to any applicable grace periods, the Company and each of its officers and directors have been in compliance in all material respects with (i) the applicable listing and other rules and regulations of the New York Stock Exchange and (ii) the applicable provisions of Xxxxxxxx-Xxxxx Act of 2002, as amended and including the rules and regulations promulgated thereunder.
Appears in 2 contracts
Samples: Merger Agreement (Harris Teeter Supermarkets, Inc.), Merger Agreement (Kroger Co)
SEC Filings; Financial Statements; Information Provided. (a) All The Company has filed all registration statements, forms, reports reports, certifications and other documents required to be filed by the Company with the SEC since January 1, 2001 (including those that the Company may file after the date hereof until the Closing) 2011. All such registration statements, forms, reports, certifications and other documents are referred to herein as the “Company SEC ReportsDocuments.” Except as set forth in Section 3.4 To the extent that the form of any Company SEC Document available on the SEC’s XXXXX system reflects the redaction of any of such Company Disclosure ScheduleSEC Document’s terms, the Company has made available to Parent an unredacted copy of such Company SEC Reports (i) Document. The Company has made available to the Parent copies of all comment letters received by the Company from the staff of the SEC since January 1, 2011 and all responses to such comment letters by or on behalf of the Company. The Company SEC Documents at the time filed, or as amended prior to the date of this Agreement, were or will be filed on a timely basis and (ii) were or will be prepared in compliance in all material respects with the applicable requirements of the Securities Act, Act and the Exchange Act, as Act and the case may be, rules and regulations of the SEC thereunder applicable to such Company SEC Reports. None of the Company SEC Reports when filedDocuments, after giving effect to any amendments and supplements thereto filed prior to the date hereof, contained did not contain any untrue statement of a material fact or omitted omit to state any a material fact required to be stated therein in such Company SEC Documents or necessary in order to make the statements thereinin such Company SEC Documents, in the light of the circumstances under which they were made, not misleading. None No Subsidiary of the Company’s Subsidiaries has filed, Company is subject to the reporting requirements of Section 13 or is obligated to file, any forms, reports, schedules, statements or other documents with Section 15(d) of the SECExchange Act. As used in this Section 3.4(a)3.5, the term “filedfile” shall be broadly construed to include any manner in which a document or information is furnished, supplied or otherwise made available to the SEC.
(b) Each of the consolidated financial statements (including, in each case, any related notes and schedules) contained or to be contained in the Company SEC Reports Documents at the time filed (i) complied or will comply as to form in all material respects with applicable accounting requirements and the published rules and regulations of the SEC with respect theretothereto (including Regulation S-X), (ii) were or will be prepared in accordance with United States generally accepted accounting principles (“GAAP”) applied on a consistent basis throughout the periods involved and at the dates involved (except as may be indicated in the notes to such financial statements or, in the case of unaudited statements, as permitted by the SEC on Form 10-Q under the Exchange Act or for normal year-end adjustments) Act), and (iii) fairly presented or will fairly present the consolidated financial position of the Company and its Subsidiaries as of the dates thereof and the consolidated results of its operations and cash flows for the periods indicated, consistent with the books and records of the Company and its Subsidiaries, except that the unaudited interim financial statements were or are subject to normal and recurring year-end adjustments that have which were not been and are or will not expected to be material to the Companyin amount or effect. The unaudited consolidated, audited balance sheet of the Company as of June 30December 31, 2004 2012 is referred to herein as the “Company Balance Sheet.”
(c) The information to be supplied Pricewaterhouse Coopers LLP, the Company’s current auditors, is and has been at all times since its engagement by the Company for inclusion in the registration statement on Form S-4 pursuant (x) “independent” with respect to which the Company Series A Preferred Stock issued within the meaning of Regulation S-X and (y) to the Company’s Knowledge, in compliance with subsections (g) through (l) of Section 10A of the Merger Exchange Act (to the extent applicable) and the Company Common Stock issuable upon conversion related rules of the SEC and the Public Company Series A Preferred Stock will be registered under the Securities Act Accounting Oversight Board.
(including any amendments or supplements, the “Registration Statement”), shall not at the time the Registration Statement is declared effective by the SEC contain any untrue d) The proxy statement of a material fact or omit to state any material fact required to be stated in the Registration Statement or necessary in order to make the statements in the Registration Statement not misleading. The information to be supplied by the Company for inclusion in the joint proxy statement/prospectus (the “Proxy Statement”) to be sent to the stockholders of the Company with respect to the Company Meeting (including the information included in connection with the meeting of the Company’s stockholders to consider the adoption of this Agreement and the Merger or incorporated by reference therein) (the “Company MeetingProxy Statement”) and the Partners in connection with the Fund Consent Solicitation (as herein defined) shall not, on the date the Proxy Statement is first mailed to stockholders of the Company and the Partners, or at the time of the Company Meeting and at the Effective TimeMeeting, contain any statement which, at such time and in light of the circumstances under which it shall be made, is false or misleading with respect to any material fact, or omit to state any material fact necessary in order to make the statements made in the Proxy Statement not false or misleadingmisleading in light of the circumstances under which they were or shall be made; or omit to state any material fact necessary to correct any statement in any earlier communication with respect to the solicitation of proxies for the Company Meeting or the solicitation of consents in connection with the Fund Consent Solicitation which has become false or misleading, provided that the Company makes no representation with respect to any information supplied in writing by or on behalf of the Parent or its Affiliates for inclusion in the Proxy Statement. If at any time prior to the Effective Time Company Meeting any fact or event relating to the Company, any Affiliate (as defined below) of the Company, Company or any officers or directors of any of them, its Affiliates which should be set forth in a supplement to the Proxy Statement should be discovered by the Company which or should be set forth in an amendment to the Registration Statement or a supplement to the Proxy Statementoccur, the Company shall shall, promptly after becoming aware thereof, inform the Fund. As used in this Agreement, the termParent of such fact or event.
Appears in 2 contracts
Samples: Merger Agreement (Sonus Networks Inc), Merger Agreement (Performance Technologies Inc \De\)
SEC Filings; Financial Statements; Information Provided. (a) All The Company has filed all registration statements, forms, reports reports, certifications and other documents required to be filed by the Company with the SEC since January 1, 2001 2010, and has made available to the Parent copies of all registration statements, forms, reports, certifications and other documents filed by the Company with the SEC since January 1, 2010, including all certifications and statements required by (i) Rule 13a-14 or 15d-14 of the Exchange Act or (ii) 18 U.S. C. §1350 (Section 906 of the Xxxxxxxx-Xxxxx Act of 2002 (the “Sarbanes Act”)). All such registration statements, forms, reports, certifications and other documents (including those that the Company may file after the date hereof until the Closing) are referred to herein as the “Company SEC ReportsDocuments.” Except as set forth in Section 3.4 All of the Company Disclosure Schedule, SEC Documents are publicly available on the SEC’s XXXXX system. The Company has made available to the Parent copies of all comment letters received by the Company from the staff of the SEC Reports since January 1, 2010 and all responses to such comment letters by or on behalf of the Company. The Company SEC Documents (ix) were or will be filed on a timely basis basis, (y) at the time filed, or as of the date of such last amendment thereof, if any such Company SEC Document filed prior to the date hereof was amended after the filing and (ii) prior to the date of this Agreement, were or will be prepared in compliance in all material respects with the applicable requirements of the Securities Act, Act and the Exchange Act, as the case may be, and the rules and regulations of the SEC thereunder applicable to such Company SEC Reports. None Documents, and (z) did not or will not at the time they were or are filed, or as of the date of such last amendment thereof, if any such Company SEC Reports when filed, after giving effect to any amendments and supplements thereto Document filed prior to the date hereofhereof was amended after the filing and prior to the date of this Agreement, contained contain any untrue statement of a material fact or omitted omit to state any a material fact required to be stated therein in such Company SEC Documents or necessary in order to make the statements thereinin such Company SEC Documents, in the light of the circumstances under which they were made, not misleading. None No Subsidiary of the Company’s Subsidiaries has filed, Company is subject to the reporting requirements of Section 13 or is obligated to file, any forms, reports, schedules, statements or other documents with Section 15(d) of the SECExchange Act. As used in this Section 3.4(a)3.5, the term “filedfile” shall be broadly construed to include any manner in which a document or information is furnished, supplied or otherwise made available to the SEC.
(b) Each of the consolidated financial statements (including, in each case, any related notes and schedules) contained or to be contained in the Company SEC Reports Documents (i) at the time filed complied or will comply as to form in all material respects with applicable accounting requirements and the published rules and regulations of the SEC with respect theretothereto (including Regulation S-X), (ii) at the time filed were or will be prepared in accordance with United States generally accepted accounting principles (“GAAP”) applied on a consistent basis throughout the periods involved and at the dates involved (except as may be indicated in the notes to such financial statements or, in the case of unaudited statements, as permitted by the SEC on Form 10-Q under the Exchange Act or for normal year-end adjustments) Act), and (iii) at the time filed fairly presented or will fairly present the consolidated financial position of the Company Company, its Subsidiary and, if applicable, the CAD Subsidiaries as of the dates thereof and the consolidated results of its operations and cash flows for the periods indicated, consistent with the books and records of the Company, its Subsidiary and, if applicable, the CAD Subsidiaries, except that the unaudited interim financial statements were or are subject to normal and recurring year-end adjustments that have which were not been and are or will not expected to be material to the Companyin amount or effect. The consolidated, unaudited balance sheet of the Company as of June September 30, 2004 2013 is referred to herein as the “Company Balance Sheet.”
(c) The information proxy statement to be supplied by sent to the Company for inclusion in the registration statement on Form S-4 pursuant to which the Company Series A Preferred Stock issued in the Merger and the Company Common Stock issuable upon conversion shareholders of the Company Series A Preferred Stock will be registered under with respect to the Securities Act Company Meeting (including any amendments the information included in or supplements, the “Registration Statement”), shall not at the time the Registration Statement is declared effective incorporated by the SEC contain any untrue statement of a material fact or omit to state any material fact required to be stated in the Registration Statement or necessary in order to make the statements in the Registration Statement not misleading. The information to be supplied by the Company for inclusion in the joint proxy statement/prospectus reference therein) (the “Proxy Statement”) to be sent to the stockholders of the Company in connection with the meeting of the Company’s stockholders to consider the adoption of this Agreement and the Merger (the “Company Meeting”) and the Partners in connection with the Fund Consent Solicitation (as herein defined) shall not, on the date the Proxy Statement is first mailed to stockholders shareholders of the Company and the PartnersCompany, at the time of the Company Meeting and or at the Effective Time, contain any statement which, at such time and in light of the circumstances under which it shall be made, is false or misleading with respect to any material fact, or omit to state any material fact necessary in order to make the statements made in the Proxy Statement not false or misleadingmisleading in light of the circumstances under which they were or shall be made; or omit to state any material fact necessary to correct any statement in any earlier communication with respect to the solicitation of proxies for the Company Meeting or the solicitation of consents in connection with the Fund Consent Solicitation which has become false or misleading. If at any time prior Notwithstanding the foregoing, the Company makes no representation or warranty with respect to the Effective Time any event relating to the Company, any Affiliate (as defined below) information supplied by or on behalf of the Company, Parent or any officers Merger Sub for inclusion or directors of any of them, should be discovered incorporation by the Company which should be set forth reference in an amendment to the Registration Statement or a supplement to the Proxy Statement, the Company shall promptly inform the Fund. As used in this Agreement, the term.
Appears in 2 contracts
Samples: Merger Agreement (Essilor International /Fi), Merger Agreement (Costa Inc)
SEC Filings; Financial Statements; Information Provided. (a) All The Parent has filed all registration statements, forms, reports and other documents required to be filed by the Company Parent with the SEC since January 12, 2001 2021. All such registration statements, forms, reports and other documents (including exhibits and all other information incorporated therein and any supplements or amendments thereto and those registration statements, forms, reports and other documents that the Company Parent may file after the date hereof until the Closing) are referred to herein as the “Company Parent SEC Reports.” Except as set forth in Section 3.4 of the Company Disclosure Schedule, the Company ”. The Parent SEC Reports (i) were or will be filed on a timely basis and basis, (ii) were at the time filed, complied, or will be prepared in compliance comply when filed, as to form in all material respects with the applicable requirements of the Securities Act, Act and the Exchange Act, as the case may be, Act applicable to such Company SEC Reports. None of the Company Parent SEC Reports when filedand (iii) except to the extent that information contained in a Parent SEC Report has been revised, after giving effect to any amendments and supplements thereto amended, modified or superseded by a later filed Parent SEC Report prior to the date hereof, contained did not or will not at the time they were or are filed contain any untrue statement of a material fact or omitted omit to state any a material fact required to be stated therein in such Parent SEC Reports or necessary in order to make the statements thereinin such Parent SEC Reports, in the light of the circumstances under which they were made, not misleading. None The Parent has not as of the Companydate hereof received any written comments from the SEC with respect to any of the Parent SEC Reports which remain unresolved. To the Parent’s Subsidiaries has filedKnowledge, or none of the Parent SEC Reports is, as of the date hereof, subject to ongoing SEC review. No Subsidiary of the Parent is obligated required to filefile any form, any forms, reports, schedules, statements report or other documents document with the SEC. As used in this Section 3.4(a), the term “filed” shall be broadly construed to include any manner in which a document or information is furnished, supplied or otherwise made available to the SEC.
(b) Each of the consolidated financial statements (including, in each case, any related notes and schedules) contained or to be contained in the Company Parent SEC Reports at the time filed (i) complied or will comply as to form in all material respects with applicable accounting requirements and the published rules and regulations of the SEC with respect thereto, (ii) were or will be prepared in accordance with generally accepted accounting principles (“GAAP”) GAAP applied on a consistent basis throughout the periods involved (except as may be indicated in the notes to such financial statements or, in the case of unaudited interim financial statements, as permitted by the SEC on Form 10-Q 10‑Q under the Exchange Act or for normal year-end adjustments) Act), and (iii) fairly presented or will fairly present in all material respects the consolidated financial position of the Company Parent and its Subsidiaries as of the dates thereof indicated and the consolidated results of its operations and cash flows for the periods indicated, except that the unaudited interim financial statements were or are subject to normal and recurring year-end adjustments that have not been and are not expected to be material to the Company. The unaudited balance sheet of the Company as of June 30, 2004 is referred to herein as the “Company Balance Sheetyear‑end audit adjustments.”
(c) The Parent is in compliance in all material respects with the applicable provisions of the Xxxxxxxx-Xxxxx Act. Each required form, report and document containing financial statements that has been filed with or submitted to the SEC was accompanied by any certifications required to be filed or submitted by the Parent’s principal executive officer and principal financial officer pursuant to the Xxxxxxxx-Xxxxx Act and, at the time of filing or submission of each such certification, any such certification complied in all material respects with the applicable provisions of the Xxxxxxxx-Xxxxx Act.
(d) The Parent maintains disclosure controls and procedures required by Rule 13a-15 or 15d-15 under the Exchange Act. Such disclosure controls and procedures are designed to provide reasonable assurance that all information concerning the Parent that could have a material effect on the financial statements is made known on a timely basis to the individuals responsible for the preparation of the Parent’s filings with the SEC and other public disclosure documents. The Parent is in compliance in all material respects with the applicable listing and other rules and regulations of NYSE. The Parent has established and at all times since January 2, 2021 has maintained 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 Parent’s financial reporting and the preparation of Parent financial statements for external purposes in accordance with GAAP. The Parent’s principal executive officer and its principal financial officer have disclosed, based on the most recent evaluation of internal control over financial reporting prior to the date of this Agreement, to the Parent’s auditors and the audit committee of the Parent Board (and made available to the Company a summary of the significant aspects of such disclosure, if any) (i) all known significant deficiencies and material weaknesses in the design or operation of internal controls over financial reporting that are reasonably likely to adversely affect in any material respect the Parent’s ability to record, process, summarize and report financial information, and (ii) any known fraud, whether or not material, that involves management or other employees who have a significant role in the Parent’s internal control over financial reporting. Since January 2, 2021, any material change in internal control over financial reporting and any significant deficiency or material weakness in the design or operation of internal control over financial reporting required to be disclosed in any Parent SEC Report or in any form, report or document filed by the Parent with the SEC has been so disclosed and each significant deficiency and material weakness previously so disclosed has been remediated in all material respects.
(e) None of the information supplied or to be supplied by the Company Parent for inclusion or incorporation by reference in the registration statement on Form S-4 pursuant Proxy Statement will, at the date it is first mailed to which the Company Series A Preferred Stock issued in the Merger and the Company Common Stock issuable upon conversion shareholders of the Company Series A Preferred Stock will be registered under the Securities Act (including any amendments or supplements, the “Registration Statement”), shall not and at the time of the Registration Statement is declared effective by the SEC Company Meeting, contain any untrue statement of a material fact or omit to state any material fact required to be stated in the Registration Statement therein or necessary in order to make the statements in the Registration Statement not misleading. The information to be supplied by the Company for inclusion in the joint proxy statement/prospectus (the “Proxy Statement”) to be sent to the stockholders of the Company in connection with the meeting of the Company’s stockholders to consider the adoption of this Agreement and the Merger (the “Company Meeting”) and the Partners in connection with the Fund Consent Solicitation (as herein defined) shall nottherein, on the date the Proxy Statement is first mailed to stockholders of the Company and the Partners, at the time of the Company Meeting and at the Effective Time, contain any statement which, at such time and in light of the circumstances under which it shall be they are made, not misleading. Subject to the accuracy of the first sentence of Section 2.5(f), the Registration Statement will comply as to form in all material respects with the provisions of the Exchange Act and the rules and regulations thereunder; provided, however, that no representation is false made by the Parent or misleading Merger Sub with respect to any material fact, or omit to state any material fact necessary in order to make the statements made in the Proxy Statement not false or misleading; or omit to state any material fact necessary to correct any statement in any earlier communication with respect to the solicitation of proxies for the Company Meeting or the solicitation of consents in connection with the Fund Consent Solicitation which has become false or misleading. If at any time prior to the Effective Time any event relating to the Company, any Affiliate (as defined below) of the Company, or any officers or directors of any of them, should be discovered therein based on information supplied by the Company which should be set forth in an amendment to the Registration Statement specifically for inclusion or a supplement to the Proxy Statement, the Company shall promptly inform the Fund. As used in this Agreement, the termincorporation by reference therein.
Appears in 2 contracts
Samples: Merger Agreement (Kimball International Inc), Merger Agreement (Kimball International Inc)
SEC Filings; Financial Statements; Information Provided. (a) All The Buyer has filed all registration statements, forms, reports reports, certifications and other documents required to be filed by the Company Buyer with the SEC since January 1February 6, 2001 2014. All such registration statements, forms, reports and other documents (including those that the Company Buyer may file after the date hereof until the Closing) are referred to herein as the “Company Buyer SEC Reports.” Except as set forth in Section 3.4 All of the Company Disclosure Schedule, the Company Buyer SEC Reports (i) were or will be filed on a timely basis and basis, (ii) were at the time filed, complied, or will be prepared in compliance comply when filed, as to form in all material respects with the applicable requirements of the Securities Act, Act and the Exchange Act, as the case may be, Act applicable to such Company SEC Reports. None of the Company Buyer SEC Reports when filed, after giving effect to any amendments and supplements thereto (iii) did not or will not at the time they were or are filed prior to the date hereof, contained contain any untrue statement of a material fact or omitted omit to state any a material fact required to be stated therein in such Buyer SEC Reports or necessary in order to make the statements thereinin such Buyer SEC Reports, in the light of the circumstances under which they were made, not misleading. None of the Company’s Subsidiaries has filed, or is obligated to file, in any forms, reports, schedules, statements or other documents with the SEC. As used in this Section 3.4(a), the term “filed” shall be broadly construed to include any manner in which a document or information is furnished, supplied or otherwise made available to the SECmaterial respect.
(b) Each of the consolidated financial statements (including, in each case, any related notes and schedules) contained or to be contained in the Company Buyer SEC Reports at the time filed (i) complied or will comply as to form in all material respects with applicable accounting requirements and the published rules and regulations of the SEC with respect thereto, (ii) were or will be prepared in accordance with generally accepted accounting principles (“GAAP”) GAAP applied on a consistent basis throughout the periods involved and at the dates involved (except as may be indicated in the notes to such financial statements or, in the case of unaudited interim financial statements, as permitted by the SEC on Form 10-Q under the Exchange Act or for normal year-end adjustmentsAct) and (iii) fairly presented or will fairly present in accordance with GAAP the consolidated financial position of the Company Buyer and its Subsidiaries as of the dates thereof indicated and the consolidated results of its operations and cash flows for the periods indicated, except that the unaudited interim financial statements were or are subject to normal and recurring year-end adjustments that have not been and are not expected to be material to the Company. The unaudited balance sheet of the Company as of June 30, 2004 is referred to herein as the “Company Balance Sheetadjustments.”
(c) The information to be supplied by the Company for inclusion in the registration statement on Form S-4 pursuant to which the Company Series A Preferred Stock issued in the Merger and the Company Common Stock issuable upon conversion of the Company Series A Preferred Stock will be registered under the Securities Act (including any amendments or supplements, the “Registration Statement”), shall not at the time the Registration Statement is declared effective by the SEC contain any untrue statement of a material fact or omit to state any material fact required to be stated in the Registration Statement or necessary in order to make the statements in the Registration Statement not misleading. The information to be supplied by the Company for inclusion in the joint proxy statement/prospectus (the “Proxy Statement”) to be sent to the stockholders of the Company in connection with the meeting of the Company’s stockholders to consider the adoption of this Agreement and the Merger (the “Company Meeting”) and the Partners in connection with the Fund Consent Solicitation (as herein defined) shall not, on the date the Proxy Statement is first mailed to stockholders of the Company and the Partners, at the time of the Company Meeting and at the Effective Time, contain any statement which, at such time and in light of the circumstances under which it shall be made, is false or misleading with respect to any material fact, or omit to state any material fact necessary in order to make the statements made in the Proxy Statement not false or misleading; or omit to state any material fact necessary to correct any statement in any earlier communication with respect to the solicitation of proxies for the Company Meeting or the solicitation of consents in connection with the Fund Consent Solicitation which has become false or misleading. If at any time prior to the Effective Time any event relating to the Company, any Affiliate (as defined below) of the Company, or any officers or directors of any of them, should be discovered by the Company which should be set forth in an amendment to the Registration Statement or a supplement to the Proxy Statement, the Company shall promptly inform the Fund. As used in this Agreement, the term
Appears in 2 contracts
Samples: Share Purchase Agreement, Share Purchase Agreement (Eleven Biotherapeutics, Inc.)
SEC Filings; Financial Statements; Information Provided. (a) All The Company has filed or furnished all registration statements, forms, reports and other documents required to be filed or furnished by the Company with the SEC U.S. Securities and Exchange Commission (“SEC”) since January 125, 2001 2021 (the “Lookback Date”). All such registration statements, forms, reports and other documents, as such documents have been amended since the time of their filing or furnishing (including exhibits and all other information incorporated therein and those registration statements, forms, reports and other documents that the Company may file or furnish after the date hereof until the Closingclosing) are referred to herein as the “Company SEC Reports.” Except ”. As of their respective filing dates or, if amended, as set forth in Section 3.4 of the Company Disclosure Scheduledate of such last amendment, the Company SEC Reports (i) were complied, and with respect to the Company SEC Reports filed or furnished after the date hereof will be filed on a timely basis and (ii) were or will be prepared in compliance comply, as to form in all material respects with the applicable requirements of the Securities Act, Act and the Exchange Act, as the case may be, Act applicable to such Company SEC Reports. None of Reports and (ii) did not, and the Company SEC Reports when filed, filed or furnished after giving effect to any amendments and supplements thereto filed prior to the date hereofhereof will not, contained contain any untrue statement of a material fact or omitted omit to state any a material fact required to be stated therein in such Company SEC Reports or necessary in order to make the statements thereinin such Company SEC Reports, in the light of the circumstances under which they were made, not misleading. As of the date hereof, there are no outstanding or unresolved comments received from the SEC with respect to the Company SEC Reports. As of the date hereof, the Company has not received any written notification that any of the Company SEC Reports is the subject of any material ongoing SEC investigation. None of the Company’s Subsidiaries has filed, is required to file with or is obligated furnish to file, the SEC any forms, reports, schedules, statements reports or other documents with or is otherwise subject to any reporting obligation under Section 13 or 15(d) of the SEC. As used in this Section 3.4(a), the term “filed” shall be broadly construed to include any manner in which a document or information is furnished, supplied or otherwise made available to the SECExchange Act.
(b) Each of the consolidated financial statements (including, in each case, any related notes and schedules) contained in or to be contained in incorporated by reference into the Company SEC Reports at the time filed (i) complied or will comply as to form in all material respects with applicable accounting requirements and the published rules and regulations of the SEC with respect thereto, (ii) were or will be prepared in accordance with generally accepted accounting principles (“GAAP”) IFRS applied on a consistent basis throughout the periods involved (except as may be indicated therein or in the notes to such financial statements or, in the case of unaudited interim financial statements, as permitted by the SEC on Form 10-Q under the Exchange Act or for normal year-end adjustments) Act), and (iii) fairly presented or will fairly present in all material respects the consolidated financial position of the Company and its Subsidiaries as of the dates thereof indicated and the consolidated results of its operations and cash flows for the periods indicated, except that the unaudited interim financial statements were or are subject to normal and recurring year-end adjustments that have not been and are not expected to be material to the Company. The unaudited balance sheet of the Company as of June 30, 2004 is referred to herein as the “Company Balance Sheetadjustments.”
(c) The information Subject to be supplied by the following sentence, (i) the Scheme Circular, on the date it is first mailed to holders of Company for inclusion in Shares and at the registration statement on Form S-4 pursuant to which the Company Series A Preferred Stock issued in the Merger and the Company Common Stock issuable upon conversion time of the Company Series A Preferred Stock will be registered under Court Meeting, and if amended or supplemented, at the Securities Act (including time of any amendments amendment or supplements, the “Registration Statement”)supplement thereto, shall not at the time the Registration Statement is declared effective by the SEC contain any untrue statement of a material fact or omit to state any material fact required to be stated in the Registration Statement therein or necessary in order to make the statements therein, in light of the circumstances in which they shall be made, not misleading and (ii) the Scheme Circular will comply as to form in all material respects with the requirements of applicable Law. Notwithstanding the foregoing, the Company makes no representation or warranty with respect to statements included or incorporated by reference in the Registration Statement not misleading. The Scheme Circular based on any information to be supplied by or on behalf of, or relates to, the Acquirer or its Subsidiaries.
(d) The Company for inclusion is in compliance in all material respects with the joint proxy statement/prospectus Xxxxxxxx-Xxxxx Act of 2002 and the rules and regulations promulgated thereunder (the “Proxy StatementXxxxxxxx-Xxxxx Act”) ). Each required form, report and document containing financial statements that has been filed with or submitted to the SEC was accompanied by any certifications required to be sent to the stockholders of the Company in connection with the meeting of filed or submitted by the Company’s stockholders principal executive officer and principal financial officer pursuant to consider the adoption of this Agreement and the Merger (the “Company Meeting”) and the Partners in connection with the Fund Consent Solicitation (as herein defined) shall not, on the date the Proxy Statement is first mailed to stockholders of the Company and the PartnersXxxxxxxx-Xxxxx Act and, at the time of filing or submission of each such certification, any such certification complied in all material respects with the applicable provisions of the Xxxxxxxx-Xxxxx Act.
(e) The Company has established and maintains disclosure controls and procedures required by Rule 13a-15 or 15d-15 under the Exchange Act. The Company has designed such disclosure controls and procedures to ensure that all material information concerning the Company Meeting and at its Subsidiaries is made known on a timely basis to the Effective Time, contain any statement which, at such time and in light individuals responsible for the preparation of the circumstances under which it shall be made, is false or misleading with respect to any material fact, or omit to state any material fact necessary in order to make the statements made in the Proxy Statement not false or misleading; or omit to state any material fact necessary to correct any statement in any earlier communication with respect to the solicitation of proxies for reports that the Company Meeting files or submits under the solicitation Exchange Act or Securities Act.
(f) The Company has established and maintains a system of consents internal control over financial reporting (as defined in connection with Rules 13a-15(f) and 15d-15(f) under the Fund Consent Solicitation which has become false or misleading. If at any time prior to Exchange Act) as required by Rules 13a-15 and 15d-15 under the Effective Time any event relating to Exchange Act.
(g) Since the Lookback Date, (i) none of the Company, any Affiliate of its Subsidiaries or any of their respective Representatives have received any bona fide complaint, allegation, assertion or claim, whether written or oral, regarding the accounting or auditing practices, procedures, methodologies or methods of the Company or any of its Subsidiaries or any of their respective internal accounting controls, including any bona fide complaint, allegation, assertion or claim that the Company or any of its Subsidiaries has engaged in questionable accounting or auditing practices; and (as defined belowii) no attorney representing the Company or any of its Subsidiaries, whether or not employed thereby, has reported evidence of a violation of securities laws, breach of fiduciary duty or similar violation by the Company, any of its Subsidiaries or any officers of their respective Representatives to the Company Board or directors of any committee thereof or to the Company’s chief legal officer or chief executive officer.
(h) Since the Lookback Date, neither the Company nor any of themits Subsidiaries has entered into any transaction, should be discovered by or series of transactions, agreements, arrangements or understandings, and there are no proposed transactions as of the Company which should be set forth in an amendment to the Registration Statement or a supplement to the Proxy Statement, the Company shall promptly inform the Fund. As used in date of this Agreement, that would be subject to disclosure pursuant to Item 404 of Regulation S-K that has not been disclosed in the termCompany SEC Reports.
Appears in 2 contracts
Samples: Implementation Agreement (Atotech LTD), Implementation Agreement (MKS Instruments Inc)
SEC Filings; Financial Statements; Information Provided. (a) All The Company has filed all registration statements, forms, reports reports, certifications and other documents required to be filed by the Company with the SEC since January 1, 2001 2008, and has made available to the Parent copies of all registration statements, forms, reports, certifications and other documents filed by the Company with the SEC since January 1, 2008, including all certifications and statements required by (i) Rule 13a-14 or 15d-14 of the Exchange Act or (ii) 18 U.S. C. §1350 (Section 906 of the Xxxxxxxx-Xxxxx Act of 2002 (the “Sarbanes Act”)). For purposes only of the first sentence of this Section 3.5(a), the phrase “made available to the Parent” shall be deemed to include Company filings and documents that are publicly available on the SEC’s XXXXX system. All such registration statements, forms, reports, certifications and other documents (including those that the Company may file after the date hereof until the Closing) are referred to herein as the “Company SEC ReportsDocuments.” Except as set forth in Section 3.4 All of the Company Disclosure Schedule, SEC Documents are publicly available on the SEC’s XXXXX system. The Company has made available to the Parent copies of all comment letters received by the Company from the staff of the SEC Reports since January 1, 2008 and all responses to such comment letters by or on behalf of the Company. The Company SEC Documents (ix) were or will be filed on a timely basis basis, (y) at the time filed, or as of the date of such last amendment thereof, if any such Company SEC Document filed prior to the date hereof was amended after the filing and (ii) prior to the date of this Agreement, were or will be prepared in compliance in all material respects with the applicable requirements of the Securities Act, Act and the Exchange Act, as the case may be, and the rules and regulations of the SEC thereunder applicable to such Company SEC Reports. None Documents, and (z) did not or will not at the time they were or are filed, or as of the date of such last amendment thereof, if any such Company SEC Reports when filed, after giving effect to any amendments and supplements thereto Document filed prior to the date hereofhereof was amended after the filing and prior to the date of this Agreement, contained contain any untrue statement of a material fact or omitted omit to state any a material fact required to be stated therein in such Company SEC Documents or necessary in order to make the statements thereinin such Company SEC Documents, in the light of the circumstances under which they were made, not misleading. None No Subsidiary of the Company’s Subsidiaries has filed, Company is subject to the reporting requirements of Section 13 or is obligated to file, any forms, reports, schedules, statements or other documents with Section 15(d) of the SECExchange Act. As used in this Section 3.4(a)3.5, the term “filedfile” shall be broadly construed to include any manner in which a document or information is furnished, supplied or otherwise made available to the SEC.
(b) Each of the consolidated financial statements (including, in each case, any related notes and schedules) contained or to be contained in the Company SEC Reports Documents at the time filed (i) complied or will comply as to form in all material respects with applicable accounting requirements and the published rules and regulations of the SEC with respect theretothereto (including Regulation S-X), (ii) were or will be prepared in accordance with United States generally accepted accounting principles (“GAAP”) applied on a consistent basis throughout the periods involved and at the dates involved (except as may be indicated in the notes to such financial statements or, in the case of unaudited statements, as permitted by the SEC on Form 10-Q under the Exchange Act or for normal year-end adjustments) Act), and (iii) fairly presented or will fairly present the consolidated financial position of the Company and its Subsidiaries as of the dates thereof and the consolidated results of its operations and cash flows for the periods indicated, consistent with the books and records of the Company and its Subsidiaries, except that the unaudited interim financial statements were or are subject to normal and recurring year-end adjustments that have which were not been and are or will not expected to be material to the Companyin amount or effect. The consolidated, unaudited balance sheet of the Company as of June 30, 2004 2011 is referred to herein as the “Company Balance Sheet.”
(c) The information to be supplied To the knowledge of the Company, the Company’s current auditor is and has been at all times since its engagement by the Company for inclusion in the registration statement on Form S-4 pursuant (x) “independent” with respect to which the Company Series A Preferred Stock issued within the meaning of Regulation S-X and (y) in compliance with subsections (g) through (l) of Section 10A of the Merger Exchange Act (to the extent applicable) and the Company Common Stock issuable upon conversion related rules of the SEC and the Public Company Series A Preferred Stock will be registered under the Securities Act Accounting Oversight Board.
(including any amendments or supplements, the “Registration Statement”), shall not at the time the Registration Statement is declared effective by the SEC contain any untrue d) The proxy statement of a material fact or omit to state any material fact required to be stated in the Registration Statement or necessary in order to make the statements in the Registration Statement not misleading. The information to be supplied by the Company for inclusion in the joint proxy statement/prospectus (the “Proxy Statement”) to be sent to the stockholders of the Company with respect to the Company Meeting (including the information included in connection with the meeting of the Company’s stockholders to consider the adoption of this Agreement and the Merger or incorporated by reference therein) (the “Company MeetingProxy Statement”) and the Partners in connection with the Fund Consent Solicitation (as herein defined) shall not, on the date the Proxy Statement is first mailed to stockholders of the Company and the PartnersCompany, at the time of the Company Meeting and or at the Effective Time, contain any statement which, at such time and in light of the circumstances under which it shall be made, is false or misleading with respect to any material fact, or omit to state any material fact necessary in order to make the statements made in the Proxy Statement not false or misleadingmisleading in light of the circumstances under which they were or shall be made; or omit to state any material fact necessary to correct any statement in any earlier communication with respect to the solicitation of proxies for the Company Meeting or the solicitation of consents in connection with the Fund Consent Solicitation which has become false or misleading, provided that the Company makes no representation with respect to any information supplied in writing by or on behalf of the Parent specifically for inclusion in the Proxy Statement. If at any time prior to the Effective Time Company Meeting any fact or event relating to the Company, any Affiliate (as defined below) of the Company, Company or any officers or directors of any of them, its Affiliates which should be set forth in a supplement to the Proxy Statement should be discovered by the Company which or should be set forth in an amendment to the Registration Statement or a supplement to the Proxy Statementoccur, the Company shall shall, promptly after becoming aware thereof, inform the Fund. As used in this Agreement, the termParent of such fact or event.
Appears in 2 contracts
Samples: Merger Agreement (Perkinelmer Inc), Merger Agreement (Caliper Life Sciences Inc)
SEC Filings; Financial Statements; Information Provided. (a) All forms, The Company has filed or furnished all reports and other documents required to be filed or furnished by the Company it or any of its Subsidiaries with the SEC since January 1December 31, 2001 (collectively, including those that the Company may file after the date hereof until the Closing) are referred to herein as any amendments thereto, the “Company SEC Reports.” Except ”). As of their respective filing dates (or, if amended, as set forth in Section 3.4 of the Company Disclosure Scheduledate of such amendment), the Company SEC Reports (i) were or will be filed on a timely basis and (ii) were or will be prepared in compliance complied in all material respects with the applicable requirements of the Securities Act, Exchange Act and the Exchange Securities Act, as the case may be, applicable to such Company and the rules and regulations of the SEC Reports. None promulgated thereunder and none of the Company SEC Reports when filed, after giving effect to any amendments and supplements thereto filed prior to the date hereof, 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 made therein, in light of the circumstances under which they were made, not misleading, except to the extent corrected by a Company SEC Report filed subsequently (but prior to the date hereof). None As of the Company’s Subsidiaries has fileddate hereof, or is obligated to file, any forms, reports, schedules, statements or other documents with there are no material unresolved comments issued by the SEC. As used in this Section 3.4(a), the term “filed” shall be broadly construed to include any manner in which a document or information is furnished, supplied or otherwise made available to the SEC.
(b) Each staff of the consolidated SEC with respect to any of the Company SEC Reports. The financial statements (including, in each case, any including the related notes and schedules) contained of the Company included in, or to be contained in incorporated by reference into, the Company SEC Reports (i) complied or will comply as to form in all material respects with applicable accounting requirements and the published rules and regulations of the SEC with respect thereto, (ii) were or will be prepared in accordance with United States generally accepted accounting principles (“GAAP”) (except, in the case of unaudited financial statements, as permitted by applicable rules and regulations of the SEC) applied on a consistent basis throughout during the periods involved (except as may be indicated in the notes to such thereto) and fairly presented in all material respects the consolidated financial statements orposition of the Company and its consolidated subsidiaries as of the dates thereof and their consolidated results of operations for the periods then ended (subject, in the case of unaudited financial statements, as permitted by the SEC on Form 10-Q under the Exchange Act or for to normal year-end adjustments) and (iii) fairly presented or will fairly present the financial position of the Company as of the dates thereof audit adjustments and the results absence of its operations and cash flows for the periods indicated, except that the unaudited interim financial statements were or are subject to normal and recurring year-end adjustments that have not been and are not expected to be material to the Company. The unaudited balance sheet of the Company as of June 30, 2004 is referred to herein as the “Company Balance Sheetfootnotes).”
(cb) The Except with respect to information to be supplied by or on behalf of the Company Buyer or the Merger Sub for inclusion in the registration proxy statement on Form S-4 pursuant to which the Company Series A Preferred Stock issued in the Merger and the Company Common Stock issuable upon conversion of the Company Series A Preferred Stock will be registered under the Securities Act (including any amendments or supplements, the “Registration Statement”), shall not at the time the Registration Statement is declared effective by the SEC contain any untrue statement of a material fact or omit to state any material fact required to be stated in the Registration Statement or necessary in order to make the statements in the Registration Statement not misleading. The information to be supplied by the Company for inclusion in the joint proxy statement/prospectus (the “Proxy Statement”) to be sent to the stockholders shareholders of the Company in connection with the meeting of the Company’s stockholders to consider the adoption of this Agreement and the Merger Company Meeting (the “Proxy Statement”), the Proxy Statement and any other soliciting materials of the Company Meeting”) and the Partners in connection with the Fund Consent Solicitation (as herein defined) shall not, on the date the Proxy Statement is or such materials are first mailed to stockholders the shareholders of the Company and the PartnersCompany, at the time of the Company Meeting and or at the Effective Time, contain any statement which, at such time and in light of the circumstances under which it shall be made, is false or misleading with respect to any material fact, or omit omits to state any material fact required to be stated therein or necessary in order to make the statements made in the Proxy Statement therein not false or misleading; or omit to state any material fact necessary to correct any statement in any earlier communication with respect to the solicitation of proxies for the Company Meeting or the solicitation of consents in connection with the Fund Consent Solicitation which has become false or misleading. If at any time prior to the Effective Time Company Meeting any fact or event relating to the Company, any Affiliate (as defined below) of the Company, Company or any officers or directors of any of them, should be discovered by the Company its Affiliates which should be set forth in an amendment or supplement to the Registration Proxy Statement should be discovered by the Company or a should occur, the Company shall, promptly after becoming aware thereof, inform the Buyer of such fact or event and file the applicable amendment or supplement to the Proxy Statement, the Company shall promptly inform the Fund. As used in For purposes of this Agreement, the termterm “Affiliate” when used with respect to any person shall mean any person who is an “affiliate” of that person within the meaning of Rule 405 under the Securities Act of 1933, as amended (the “Securities Act”).
(c) The Company maintains disclosure controls and procedures as required by Rule 13a-15 or 15d-15 under the Exchange Act. Such disclosure controls and procedures are designed to ensure that all material information concerning the Company is made known on a timely basis to the individuals responsible for the preparation of the Company’s filings with the SEC and other public disclosure documents, and such disclosure controls and procedures are, to the knowledge of the Company, effective to ensure that 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 rules and forms. The Company has disclosed, based on its most recent evaluations, to the Company’s outside auditors and the audit committee of the Board of Directors of the Company (A) all significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting (as defined in Rule 13a-15(f) under the Exchange Act) which are known to the Company and reasonably likely to adversely affect the Company’s ability to record, process, summarize and report financial data and (B) any fraud, whether or not material, known to the Company that involves management or other employees who have a significant role in the Company’s internal control over financial reporting. The principal executive officer and principal financial officer of the Company have made all certifications required by the Sxxxxxxx-Xxxxx Act of 2002 and any related rules and regulations promulgated by the SEC.
Appears in 2 contracts
Samples: Merger Agreement (Aspect Communications Corp), Merger Agreement (Concerto Software Inc)
SEC Filings; Financial Statements; Information Provided. (a) All The Company has filed all registration statements, forms, reports and other documents required to be filed by the Company with the SEC since January 1Securities and Exchange Commission ("SEC"). All such registration statements, 2001 forms, reports and other documents (including those that the Company may file after the date hereof until the Initial Offer Closing) are referred to herein as the “"Company SEC Reports.” Except as set forth in Section 3.4 of the Company Disclosure Schedule, the " The Company SEC Reports (i) were or will be filed on a timely basis and basis, (ii) were at the time filed, complied, or will be prepared in compliance comply when filed, as to form in all material respects with the applicable requirements of the Securities Act, Act and the Exchange Act, as the case may be, and the rules and regulations of the SEC thereunder applicable to such Company SEC Reports. None of , and (iii) did not or will not at the Company SEC Reports when filed, after giving effect to any amendments and supplements thereto time they were or are filed prior to the date hereof, contained contain any untrue statement of a material fact or omitted omit to state any a material fact required to be stated therein in such Company SEC Reports or necessary in order to make the statements thereinin such Company SEC Reports, in the light of the circumstances under which they were made, not misleading. None No Subsidiary of the Company’s Subsidiaries has filed, or Company is obligated to file, any forms, reports, schedules, statements or other documents with the SEC. As used in this Section 3.4(a), the term “filed” shall be broadly construed to include any manner in which a document or information is furnished, supplied or otherwise made available subject to the SECreporting requirements of Section 13(a) or Section 15(d) of the Exchange Act.
(b) Each of the consolidated financial statements (including, in each case, any related notes and schedules) contained or to be contained in the Company SEC Reports at the time filed (i) complied or will comply as to form in all material respects with applicable accounting requirements and the published rules and regulations of the SEC with respect thereto, (ii) were or will be prepared in accordance with United States generally accepted accounting principles (“"GAAP”") applied on a consistent basis throughout the periods involved (except as may be indicated in the notes to such financial statements orstatements), in the case of unaudited statements, as permitted by the SEC on Form 10-Q under the Exchange Act or for normal year-end adjustments) and (iii) fairly presented or will fairly present in all material respects the consolidated financial position of the Company and its Subsidiaries as of the dates thereof indicated and the consolidated results of its operations and cash flows for the periods indicated, except that the unaudited interim financial statements were or are subject to normal and recurring year-end adjustments that have not been and are not expected to be material to the Company. The unaudited balance sheet of the Company as of June 30, 2004 is referred to herein as the “Company Balance Sheetadjustments.”
(c) The information to be supplied Company maintains disclosure controls and procedures required by Rule 13a-15 or 15d-15 under the Exchange Act. Except as set forth in the Company for inclusion in the registration statement on Form S-4 pursuant SEC Reports, such disclosure controls and procedures are reasonably designed to which (i) ensure that all material information concerning the Company Series A Preferred Stock issued in the Merger and the Company Common Stock issuable upon conversion of the Company Series A Preferred Stock will be registered under the Securities Act (including any amendments or supplements, the “Registration Statement”), shall not at the time the Registration Statement is declared effective by the SEC contain any untrue statement of made known on a material fact or omit to state any material fact required to be stated in the Registration Statement or necessary in order to make the statements in the Registration Statement not misleading. The information to be supplied by the Company for inclusion in the joint proxy statement/prospectus (the “Proxy Statement”) to be sent timely basis to the stockholders of individuals responsible for the Company in connection with the meeting preparation of the Company’s stockholders to consider the adoption of this Agreement and the Merger (the “Company Meeting”) and the Partners in connection 's filings with the Fund Consent Solicitation SEC and other public disclosure documents, (as herein definedii) shall not, on require the date maintenance of records that in reasonable detail accurately and fairly reflect the Proxy Statement is first mailed to stockholders material transactions and dispositions of the assets of the Company and its Subsidiaries, and (iii) provide reasonable assurance regarding presentation or timely direction of unauthorized acquisition, use or disposition of the Partners, at the time assets of the Company Meeting and at its Subsidiaries. To the Effective TimeCompany's Knowledge, contain except as set forth in the Company SEC Reports, neither the Company nor its independent auditors have identified (A) any statement whichsignificant deficiency or material weakness in the system of internal accounting controls utilized the Company and its Subsidiaries, at such time (B) any fraud, whether or not material, that involves the Company's management or other employees who have a role in the preparation of financial statements or the internal accounting controls utilized by the Company and in light its Subsidiaries or (C) any claim or allegations regarding any of the circumstances under which it shall be madeforegoing.
(d) Neither the Company nor any of its Subsidiaries is a party to, is false or misleading with respect has any commitment to become a party to, any joint venture, partnership agreement or any similar Contract (including any Contract relating to any material facttransaction, arrangement or omit relationship between or among the Company or any of its Subsidiaries, on the one hand, and any unconsolidated affiliate, including any structured finance, special purpose or limited purpose entity or Person, on the other hand (such as any arrangement described in Section 303(a)(4) of Regulation S-K of the SEC)) where the purpose or effect of such arrangement is to state avoid disclosure of any material fact necessary in order to make transaction involving the statements made Company or any of its Subsidiaries in the Proxy Statement not false or misleading; or omit to state any material fact necessary to correct any statement in any earlier communication with respect to the solicitation of proxies for Company's consolidated financial statements.
(e) Neither the Company Meeting or the solicitation nor any of consents in connection with the Fund Consent Solicitation which has become false or misleading. If at any time prior to the Effective Time any event relating its Subsidiaries nor, to the Company's Knowledge, any Affiliate (as defined below) director, officer, auditor, accountant, consultant or representative of the Company or any of its Subsidiaries has received or otherwise had or obtained knowledge of any substantive complaint, allegation, assertion or claim, whether written or oral, that the Company or any of its Subsidiaries has engaged in questionable accounting or auditing practices. No current or former attorney representing the Company or any of its Subsidiaries has reported evidence or a material violation of securities laws, breach of fiduciary duty or similar violation by the Company or any of its officers, directors, employees or agents to the current Company Board or any committee thereof or to any current director or executive officer of the Company.
(f) To the Company's Knowledge, no employee of the Company or any officers of its Subsidiaries has provided or directors is providing information to any law enforcement agency regarding the commission or possible commission of any crime or the violation or possible violation of them, should be discovered any applicable Law of the type described in Section 806 of the Xxxxxxxx-Xxxxx Act by the Company which should be or any of its Subsidiaries. Neither the Company nor any of its Subsidiaries nor, to the Company's Knowledge, any director, officer, employee, contractor, subcontractor or agent of the Company or any such Subsidiary has discharged, demoted, suspended, threatened, harassed or in any other manner discriminated against an employee of the Company or any of its Subsidiaries in the terms and conditions of employment because of any lawful act of such employee described in Section 806 of the Xxxxxxxx-Xxxxx Act.
(g) Except as set forth in an amendment to the Registration Statement or a supplement to the Proxy StatementCompany SEC Reports, the Company shall promptly inform is in compliance in all material respects with all effective provisions of the Fund. As used in this Agreement, Xxxxxxxx-Xxxxx Act which are applicable to the termCompany.
Appears in 2 contracts
Samples: Combination Agreement (Realnetworks Inc), Combination Agreement (WiderThan Co., Ltd.)
SEC Filings; Financial Statements; Information Provided. (a) All Public Company has filed all registration statements, forms, reports and other documents required to be filed by the Public Company with the SEC since January 1April 10, 2001 2014. All such registration statements, forms, reports and other documents (including those that the Public Company may file after the date hereof until the Closing) are referred to herein as the “Public Company SEC Reports.” Except as set forth in Section 3.4 of the Company Disclosure Schedule, the The Public Company SEC Reports (i) were or will be filed on a timely basis and basis, (ii) were at the time filed, complied, or will be prepared in compliance comply when filed, as to form in all material respects with the applicable requirements of the Securities Act, Act and the Exchange Act, as the case may be, Act applicable to such Company SEC Reports. None of the Public Company SEC Reports when filed, after giving effect to any amendments and supplements thereto (iii) did not or will not at the time they were or are filed prior to the date hereof, contained contain any untrue statement of a material fact or omitted omit to state any a material fact required to be stated therein in such Public Company SEC Reports or necessary in order to make the statements thereinin such Public Company SEC Reports, in the light of the circumstances under which they were made, not misleading. None of the Company’s Subsidiaries has filed, or is obligated to file, misleading in any forms, reports, schedules, statements or other documents with the SEC. As used in this Section 3.4(a), the term “filed” shall be broadly construed to include any manner in which a document or information is furnished, supplied or otherwise made available to the SECmaterial respect.
(b) Each of the consolidated financial statements (including, in each case, any related notes and schedules) contained or to be contained in the Public Company SEC Reports at the time filed (i) complied or will comply as to form in all material respects with applicable accounting requirements and the published rules and regulations of the SEC with respect thereto, (ii) were or will be prepared in accordance with generally accepted accounting principles (“GAAP”) GAAP applied on a consistent basis throughout the periods involved (except as may be indicated in the notes to such financial statements or, in the case of unaudited interim financial statements, as permitted by the SEC on Form 10-Q under the Exchange Act or for normal year-end adjustments) Act), and (iii) fairly presented or will fairly present in all material respects the consolidated financial position of the Public Company and its Subsidiaries as of the dates thereof indicated and the consolidated results of its operations and cash flows for the periods indicated, except that the unaudited interim financial statements were or are subject to normal and recurring year-end adjustments that have not been and are not expected to be material to the Companyadjustments. The consolidated unaudited balance sheet of the Public Company as of June 30December 31, 2004 2016 is referred to herein as the “Public Company Balance Sheet.”
(c) The information to be supplied by the or on behalf of Public Company for inclusion in the registration statement on Form S-4 pursuant to which the Company Series A Preferred Stock issued in the Merger and the Company Common Stock issuable upon conversion of the Company Series A Preferred Stock will be registered under the Securities Act (including any amendments or supplements, the “Registration Statement”), shall not at the time the Registration Proxy Statement is declared effective by the SEC contain any untrue statement of a material fact or omit to state any material fact required to be stated in the Registration Statement or necessary in order to make the statements in the Registration Statement not misleading. The information to be supplied by the Company for inclusion in the joint proxy statement/prospectus (the “Proxy Statement”) to be sent to the stockholders of the Public Company in connection with the meeting of the Public Company’s stockholders to consider the adoption of this Agreement and the Merger (the “Public Company Meeting”) and to consider the Partners issuance of shares of Public Company Common Stock in connection with the Fund Consent Solicitation Transaction (as herein definedthe “Public Company Voting Proposal”) under the NASDAQ Stock Market, Inc. (“NASDAQ”) rules (the “Public Company Stockholder Approval”), which information shall be deemed to include all information about or relating to Public Company, the Public Company Voting Proposal or the Public Company Meeting, shall not, on the date the Proxy Statement is first mailed to stockholders of the Public Company and the Partnersor Private Company, or at the time of the Public Company Meeting and or at the Effective TimeClosing, contain any statement whichthat, at such time and in light of the circumstances under which it shall be made, is false or misleading with respect to any material fact, or omit to state any material fact necessary in order to make the statements made in the Proxy Statement not false or misleading; or omit to state any material fact necessary to correct any statement in any earlier communication with respect to the solicitation of proxies for the Public Company Meeting or the solicitation of consents in connection with the Fund Consent Solicitation which that has become false or misleading. If at any time prior .
(d) Public Company is in compliance in all material respects with the applicable provisions of the Xxxxxxxx-Xxxxx Act of 2002, as amended (the “Xxxxxxxx-Xxxxx Act.” Each required form, report and document containing financial statements that has been filed with or submitted to the Effective Time SEC was accompanied by any event certifications required to be filed or submitted by Public Company’s principal executive officer and principal financial officer pursuant to the Xxxxxxxx-Xxxxx Act and, at the time of filing or submission of each such certification, any such certification complied in all material respects with the applicable provisions of the Xxxxxxxx-Xxxxx Act.
(e) Public Company maintains disclosure controls and procedures required by Rule 13a-15 or 15d-15 under the Exchange Act. Such disclosure controls and procedures are designed to ensure that all material information concerning Public Company is made known on a timely basis to the individuals responsible for the preparation of Public Company’s filings with the SEC and other public disclosure documents. Public Company is in compliance in all material respects with the applicable listing and other rules and regulations of the Nasdaq Stock Market.
(f) As of the date of this Agreement, (i) Public Company has timely responded to all comment letters of the staff of the SEC relating to the Public Company SEC Reports, and (ii) the SEC has not advised Public Company that any final responses are inadequate, insufficient or otherwise non-responsive. To the extent such comment letters, written inquiries and enforcement correspondence are not publicly available on the SEC’s XXXXX system, (x) Public Company has made available to the Company true, correct and complete copies of all comment letters, written inquiries and enforcement correspondence between the SEC, on the one hand, and Public Company, on the other hand, occurring between April 10, 2014 and the date of this Agreement and (y) will, reasonably promptly following the receipt thereof, make available to the Private Company any such correspondence sent or received after the date hereof. To the Knowledge of Public Company, as of the date of this Agreement, none of the Public Company SEC Reports is the subject of ongoing SEC review or outstanding SEC comment.
(g) As of the date hereof, neither Public Company nor, to the Knowledge of Public Company, any Affiliate (as defined below) of the Companydirector, officer, employee, or any officers internal or directors external auditor of Public Company has received written notice, or otherwise had or obtained actual Knowledge, of any of themsubstantive material complaint, should be discovered by the allegation, assertion or claim that Public Company which should be set forth has engaged in an amendment to the Registration Statement questionable accounting or a supplement to the Proxy Statement, the Company shall promptly inform the Fund. As used in this Agreement, the termauditing practices.
Appears in 2 contracts
Samples: Stock Purchase Agreement (Dare Bioscience, Inc.), Stock Purchase Agreement (Cerulean Pharma Inc.)
SEC Filings; Financial Statements; Information Provided. (a) All The Company has filed or furnished all registration statements, forms, reports and other documents required to be filed or furnished by the Company with the SEC since January 1, 2001 2002. All such registration statements, forms, reports and other documents (including those that the Company may file after the date hereof until the Closing, and in each case including all exhibits, schedules and amendments thereto and documents incorporated by reference therein) are referred to herein as the “Company SEC Reports.” Except as set forth As of their respective effective dates (in Section 3.4 the case of Company SEC Reports that are registration statements filed pursuant to the requirements of the Securities Act) and as of their respective SEC filing dates (in the case of all other Company Disclosure ScheduleSEC Reports), the Company SEC Reports (i) were or will be filed on a timely basis and (ii) were or will be prepared in compliance complied in all material respects with the applicable requirements of the Securities Act, Act and the Exchange Act, as the case may be, and the rules and regulations of the SEC thereunder applicable to such Company SEC Reports. None , and none of the Company SEC Reports when filed, after giving effect to any amendments and supplements thereto filed prior to the date hereof, as of such respective dates 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. None No investigation by the SEC with respect to the Company or any of its Subsidiaries is pending or, to the Knowledge of the Company’s Subsidiaries , threatened. Except to the extent that information contained in any Company SEC Report on (i) Form 10-K filed and publicly available after January 1, 2003 or (ii) Form 10-Q filed after January 1, 2005, in each case prior to the date of this Agreement (a “Specified Company SEC Report”) has filedbeen revised or superseded by a later filed Company SEC Report filed and publicly available prior to the date of this Agreement (each a “Filed Company SEC Report”), none of the Specified Company SEC Reports contains any untrue statement of a material fact or omits 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 Subsidiary of the Company is obligated subject to file, any forms, reports, schedules, statements the reporting requirements of Section 13(a) or other documents with Section 15(d) of the SECExchange Act. As used in this Section 3.4(a)Agreement, “Knowledge” of any Person that is not an individual shall mean, with respect to any matter in question, the term “filed” shall be broadly construed to include any manner in which a document or information is furnished, supplied or otherwise made available to knowledge after due inquiry of those persons set forth on Section 3.5(a) of the SECCompany Disclosure Letter.
(b) Each of the consolidated financial statements (including, in each case, any related notes and schedules) contained or to be contained in the Company SEC Reports at the time filed (i) complied or will comply as to form in all material respects with applicable accounting requirements and the published rules and regulations of the SEC with respect thereto, (ii) were or will be prepared in accordance with United States generally accepted accounting principles (“GAAP”) applied on a consistent basis throughout the periods involved (except as may be indicated in the notes to such financial statements or, in the case of unaudited interim financial statements, as permitted by the SEC on Form 10-Q under the Exchange Act or for normal year-end adjustments) Act), and (iii) fairly presented or will fairly present the consolidated financial position of the Company and its Subsidiaries as of the dates thereof indicated and the consolidated results of its their operations and cash flows for the periods indicated, except that subject, in the case of unaudited interim financial statements were or are subject statements, to normal and recurring year-end adjustments that have not audit adjustments, none of which has been and are not expected to be or will be, individually or in the aggregate, material to the CompanyCompany and its Subsidiaries, taken as a whole). The unaudited consolidated, audited balance sheet of the Company as of June 30December 31, 2004 (the “Balance Sheet Date”) included in the Company’s Annual Report on Form 10-K for the year ended as of such date (including the notes thereto) is referred to herein as the “Company Balance Sheet.”
(c) The information to be supplied by or on behalf of the Company for inclusion in the registration proxy statement on Form S-4 pursuant to which be sent to the Company Series A Preferred Stock issued in the Merger and the Company Common Stock issuable upon conversion shareholders of the Company Series A Preferred Stock will be registered under the Securities Act (including any amendments as amended or supplementssupplemented from time to time, the “Registration Statement”), shall not at the time the Registration Statement is declared effective by the SEC contain any untrue statement of a material fact or omit to state any material fact required to be stated in the Registration Statement or necessary in order to make the statements in the Registration Statement not misleading. The information to be supplied by the Company for inclusion in the joint proxy statement/prospectus (the “Proxy Statement”) to be sent to the stockholders of the Company in connection with the meeting of the Company’s stockholders to consider the adoption of this Agreement and the Merger (the “Company Meeting”) and the Partners in connection with the Fund Consent Solicitation (as herein defined) Meeting shall not, on the date the Proxy Statement is first mailed to stockholders shareholders of the Company and the PartnersCompany, at the time of the Company Meeting and or at the Effective Time, contain any untrue statement which, at such time and in light of the circumstances under which it shall be made, is false or misleading with respect to any a material fact, or omit to state any material fact required to be stated therein or necessary in order to make the statements made therein, in light of the Proxy Statement circumstances under which they were made, not false or misleading; or omit to state any material fact necessary to correct any statement in any earlier communication provided, however, that no representation is made by the Company with respect to the solicitation of proxies information supplied by Buyer specifically for the Company Meeting or the solicitation of consents inclusion in connection with the Fund Consent Solicitation which has become false or misleadingsuch documents. If at any time prior to the Effective Time Company Meeting any fact or event relating to the Company, any Affiliate (as defined below) of the Company, Company or any officers or directors of any of them, its Affiliates that should be set forth in a supplement to the Proxy Statement should be discovered by the Company or should occur, the Company shall, promptly after becoming aware thereof, inform the Buyer of such fact or event.
(d) The Company has established and maintains disclosure controls and procedures and internal control over financial reporting required by Rule 13a-15 or 15d-15 under the Exchange Act. Such disclosure controls and procedures are effective to ensure that all material information concerning the Company, including its consolidated Subsidiaries, is made known to the Company’s principal executive officer and its principal financial officer by others within those entities, particularly during the periods in which should the periodic reports required under the Exchange Act are being prepared; and such disclosure controls and procedures are effective in accumulating and communicating to the Company’s principal executive officer and its principal financial officer information required to be included in the Company’s periodic reports required under the Exchange Act as appropriate to allow timely decisions regarding required disclosure. The principal executive officer and the principal financial officer of the Company have timely made all certifications required by the Xxxxxxxx-Xxxxx Act of 2002 and any rules and regulations promulgated by the SEC thereunder (the “SOxA”). All of the statements contained in such certifications are complete and correct as of the dates thereof. The Company’s principal executive officer and its principal financial officer have disclosed, based on their most recent evaluation of internal control over financial reporting, to the Company’s auditors and the audit committee of the Board of Directors of the Company (x) all significant deficiencies and material weaknesses (as such terms are defined in PCAOB Auditing Standard No. 2) in the design or operation of internal control over financial reporting that are reasonably likely to adversely affect the Company’s ability to record, process, summarize and report financial data (each a “Financial Control Weakness”) and (y) any fraud, whether or not material, that involves management or other employees who have a significant role in the Company’s internal control over financial reporting. The Company is in compliance with the applicable listing and other rules and regulations of The NASDAQ National Market.
(e) The Company’s system of internal control over financial reporting is effective in providing reasonable assurance (i) that transactions are recorded as necessary to permit preparation of financial statements in conformity with GAAP, (ii) that receipts and expenditures are executed only in accordance with the authorization of management and (iii) regarding prevention or timely detection of the unauthorized acquisition, use or disposition of the Company’s assets that would materially affect the Company’s financial statements. No Financial Control Weakness was identified in management’s assessment of its internal control over financial reporting as of December 31, 2004 (nor has any such Financial Control Weakness since been identified).
(f) The Company is in compliance in all material respects with the provisions of Section 13(b) of the Exchange Act. Neither the Company nor any of its Subsidiaries nor, to the Company’s Knowledge, any director, officer, agent, employee or other Person acting on behalf of the Company or any of its Subsidiaries, has (i) used any corporate or other funds for unlawful contributions, payments, gifts or entertainment, or made any unlawful expenditures relating to political activity to government officials or others or established or maintained any unlawful or unrecorded funds or otherwise taken or permitted to be taken any action in violation of Section 30A of the Exchange Act (the “FCPA”) or (ii) accepted or received any unlawful contributions, payments, gifts or expenditures. Except as set forth in an amendment Filed Company SEC Reports, since December 31, 2004, no event has occurred that would be required to be reported as a “Certain Relationship or Related Transaction” pursuant to Item 404 of Regulation S-K promulgated by the SEC.
(g) Since January 1, 2003, neither the Company nor any of its Subsidiaries nor any of their respective directors, officers, employees, auditors or accountants, has received or otherwise had or obtained Knowledge of any material complaint, allegation, assertion or claim, whether written or oral, regarding the accounting or auditing practices, procedures, methodologies or methods of the Company or any of its Subsidiaries or their respective internal accounting controls, including any material complaint, allegation, assertion or claim that the Company or any of its Subsidiaries has engaged in questionable accounting or auditing practices. Since January 1, 2003, no attorney representing the Company or any of its Subsidiaries, whether or not employed by the Company or any of its Subsidiaries, has reported evidence of a material violation of securities Laws, breach of fiduciary duty or similar violation by the Company or any of its officers, directors, employees or agents to the Registration Statement or a supplement to the Proxy Statement, Board of Directors of the Company shall or any committee thereof or to any director or officer of the Company.
(h) The Company has adopted a code of ethics, as defined by Item 406(b) of Regulation S-K, for senior financial officers, applicable to its principal financial officer, comptroller or principal accounting officer, or Persons performing similar functions. The Company has promptly inform disclosed, by filing a Form 8-K, any change in or waiver of the Fund. As used in this AgreementCompany’s code of ethics, as required by Section 406(b) of SOxA. To the termKnowledge of the Company, there have been no violations of provisions of the Company’s code of ethics.
Appears in 2 contracts
Samples: Merger Agreement (Idx Systems Corp), Merger Agreement (General Electric Co)
SEC Filings; Financial Statements; Information Provided. (a) All The Company has filed or furnished all registration statements, forms, reports and other documents required to be filed or furnished by the Company with the SEC Securities and Exchange Commission (the “SEC”) since January 131, 2001 2003. All such registration statements, forms, reports and other documents (including those that the Company may file or furnish after the date hereof until the Closing) are referred to herein as the “Company SEC Reports.” Except as set forth in Section 3.4 of the Company Disclosure Schedule, the The Company SEC Reports (i) were or will be filed on a timely basis and basis, (ii) were at the time filed, complied, or will be prepared in compliance comply when filed, as to form in all material respects with the applicable requirements of the Securities ActAct of 1933, as amended, and the Exchange Act, as the case may be, and the rules and regulations of the SEC thereunder applicable to such Company SEC Reports. None of , and (iii) did not or will not at the Company SEC Reports when filed, after giving effect to any amendments and supplements thereto time they were or are filed prior to the date hereof, contained contain any untrue statement of a material fact or omitted omit to state any a material fact required to be stated therein in such Company SEC Reports or necessary in order to make the statements thereinin such Company SEC Reports, in the light of the circumstances under which they were made, not misleading. None No Subsidiary of the Company’s Subsidiaries has filed, or Company is obligated to file, any forms, reports, schedules, statements or other documents with the SEC. As used in this Section 3.4(a), the term “filed” shall be broadly construed to include any manner in which a document or information is furnished, supplied or otherwise made available subject to the SECreporting requirements of Section 13(a) or Section 15(d) of the Exchange Act. There are no off-balance sheet structures or transactions with respect to the Company or any of its Subsidiaries that would be required to be reported or set forth in the Company SEC Reports.
(b) Each of the consolidated financial statements (including, in each case, any related notes and schedules) contained or to be contained in or incorporated by reference in the Company SEC Reports at the time filed (or to be filed) (i) complied (or will comply comply) as to form in all material respects with applicable accounting requirements and the published rules and regulations of the SEC with respect thereto, thereto and (ii) were (or will be be) prepared in accordance with United States generally accepted accounting principles (“GAAP”) applied on a consistent basis throughout the periods involved (except as may be indicated in the notes to such financial statements or, in the case of unaudited interim financial statements, as permitted by the SEC on with respect to Form 10-Q under the Exchange Act Act). Each of the consolidated balance sheets (including, in each case, any related notes and schedules) contained or for normal year-end adjustments) and (iii) to be contained or incorporated by reference in the Company SEC Reports at the time filed fairly presented in all material respects (or will fairly present in all material respects) the consolidated financial position of the Company and its Subsidiaries as of the dates thereof indicated and each of the consolidated statements of income and of changes in financial position contained or to be contained or incorporated by reference in the Company SEC Reports (including, in each case, any related notes and schedules) fairly presented in all material respects (or will fairly present in all material respects) the consolidated results of operations, retained earnings and changes in financial position, as the case may be, of the Company and its operations and cash flows Subsidiaries for the periods indicatedset forth therein, except that the unaudited interim financial statements were or are subject to normal and recurring year-end adjustments that have not been and are not expected to be material to the Company. The unaudited balance sheet of the Company as of June 30, 2004 is referred to herein as the “Company Balance Sheetadjustments.”
(c) The information to be supplied by or on behalf of the Company for inclusion in the registration proxy statement on Form S-4 pursuant to which the Company Series A Preferred Stock issued in the Merger and the Company Common Stock issuable upon conversion of the Company Series A Preferred Stock will be registered under the Securities Act (including any amendments or supplements, the “Registration Statement”), shall not at the time the Registration Statement is declared effective by the SEC contain any untrue statement of a material fact or omit to state any material fact required to be stated in the Registration Statement or necessary in order to make the statements in the Registration Statement not misleading. The information to be supplied by the Company for inclusion in the joint proxy statement/prospectus (the “Proxy Statement”) to be sent to the stockholders of the Company (the “Proxy Statement”) in connection with the meeting of the Company’s stockholders to consider the adoption of this Agreement and the Merger (the “Company Meeting”) and the Partners in connection with the Fund Consent Solicitation (as herein defined) Meeting shall not, on the date the Proxy Statement is first mailed to stockholders of the Company and the Partners, or at the time of the Company Meeting and at the Effective TimeMeeting, contain any statement which, at such time and in light of the circumstances under which it shall be made, is false or misleading with respect to any material fact, or omit to state any material fact necessary in order to make the statements made in the Proxy Statement not false or misleadingmisleading in light of the circumstances under which they were or shall be made; or omit to state any material fact necessary to correct any statement in any earlier communication with respect to the solicitation of proxies for the Company Meeting or the solicitation of consents in connection with the Fund Consent Solicitation which has become false or misleading. If at any time prior to the Effective Time Company Meeting any fact or event relating to the Company, any Affiliate (as defined below) of the Company, Company or any officers or directors of any of them, its Affiliates which should be set forth in a supplement to the Proxy Statement should be discovered by the Company which or should be set forth in an amendment to the Registration Statement or a supplement to the Proxy Statementoccur, the Company shall shall, promptly after becoming aware thereof, inform Parent of such fact or event.
(d) The Company maintains disclosure controls and procedures required by Rule 13a-15 or 15d-15 under the FundExchange Act. As Such disclosure controls and procedures are designed to ensure that all material information concerning the Company and its Subsidiaries is made known on a timely basis to the Company’s Chief Executive Officer and Chief Financial Officer, Management assessed the effectiveness of the Company’s internal control over financial reporting as of January 31, 2005. In making this assessment, management used the criteria set forth by the Committee of Sponsoring Organizations of the Xxxxxxxx Commission (COSO) in this AgreementInternal Control-Integrated Framework. Based on such assessment, management believes that the Company’s internal controls over financial reporting is effective. The Company has disclosed, based on its most recent evaluation prior to the date hereof, to the Company’s auditors and the audit committee of the Company Board (A) any significant deficiencies in the design or operation of internal controls which are reasonably likely to adversely affect in any material respect the Company’s ability to record, process, summarize and report financial data and has identified for the Company’s auditors any material weaknesses in internal controls and (B) any fraud, whether or not material, that involves management or other employees who have a significant role in the Company’s internal controls. The Company has made available to Parent (i) a summary of the disclosure referenced by (A) and (B) above, made by management to the Company’s auditors and audit committee since January 31, 2003 and (ii) any other material communication since January 31, 2003 made by management or the Company’s auditors to the audit committee required or contemplated by listing standards of the Nasdaq National Market, the termaudit committee’s charter or professional standards of the Public Company Accounting Oversight Board. Since January 31, 2003, no material complaints from any source regarding accounting, internal accounting controls or auditing matters, and no concerns from Company employees regarding questionable accounting or auditing matters, have been received by the Company. The Company has made available to Parent a summary of all material complaints or concerns relating to other matters made since January 31, 2003 through the Company’s whistleblower hot-line or equivalent system for receipt of employee concerns regarding possible violations of Laws (as hereinafter defined). No attorney representing the Company or any of its Subsidiaries, whether or not employed by the Company or any of its Subsidiaries, has reported evidence of a violation of securities Laws, breach of fiduciary duty or similar violation by the Company or any of its officers, directors, employees or agents to the Company Board or any committee thereof or to any director or officer of the Company or any of its Subsidiaries.
(e) The Company is in compliance with the applicable listing and other rules and regulations of The Nasdaq National Market and has not since January 1, 2004 received any notice from The Nasdaq National Market asserting any non-compliance with such rules and regulations.
(f) The Company and its Subsidiaries are, and have been since July 30, 2002, in compliance in all material respects with the applicable provisions of the Xxxxxxxx-Xxxxx Act of 2002 (the “SOX Act”).
Appears in 2 contracts
Samples: Merger Agreement (Computer Associates International Inc), Merger Agreement (Niku Corp)
SEC Filings; Financial Statements; Information Provided. (a) All The Buyer has filed all registration statements, forms, reports and other documents required to be filed by the Company Buyer with the SEC since January 1, 2001 2010 and has made available to the Company copies of all registration statements, forms, reports and other documents filed by the Buyer with the SEC since such date, all of which are publicly available on the SEC’s XXXXX system. All such registration statements, forms, reports and other documents (including those that the Company Buyer may file after the date hereof until the Closing) are referred to herein as the “Company Buyer SEC ReportsDocuments.” Except as set forth in Section 3.4 of the Company Disclosure Schedule, the Company The Buyer SEC Reports Documents (i) were or will be filed on a timely basis and basis, (ii) at the time filed, were or will be prepared in compliance in all material respects with the applicable requirements of the Securities Act, Act and the Exchange Act, as the case may be, and the rules and regulations of the SEC thereunder applicable to such Company Buyer SEC Reports. None of Documents, and (iii) did not or will not at the Company SEC Reports when filed, after giving effect to any amendments and supplements thereto time they were or are filed prior to the date hereof, contained contain any untrue statement of a material fact or omitted omit to state any a material fact required to be stated therein in such Buyer SEC Documents or necessary in order to make the statements thereinin such Buyer SEC Documents, in the light of the circumstances under which they were made, not misleading. None of the Company’s Subsidiaries has filed, or is obligated to file, any forms, reports, schedules, statements or other documents with the SEC. As used in this Section 3.4(a), the term “filed” shall be broadly construed to include any manner in which a document or information is furnished, supplied or otherwise made available to the SEC.
(b) Each of the consolidated financial statements (including, in each case, any related notes and schedules) contained or to be contained in the Company Buyer SEC Reports Documents at the time filed (i) complied or will comply as to form in all material respects with applicable accounting requirements and the published rules and regulations of the SEC with respect thereto, (ii) were or will be prepared in accordance with generally accepted accounting principles (“GAAP”) GAAP applied on a consistent basis throughout the periods involved (except as may be indicated in the notes to such financial statements or, in the case of unaudited statements, as permitted by the SEC on Form 10-Q under the Exchange Act or for normal year-end adjustmentsAct) and (iii) fairly presented or will fairly present the consolidated financial position of the Company Buyer and its Subsidiaries as of the dates thereof and the consolidated results of its operations and cash flows for the periods indicated, consistent with the books and records of the Buyer and its Subsidiaries, except that the unaudited interim financial statements were or are subject to normal and recurring year-end adjustments that have which were not been and or are not expected to be material to the Companyin amount. The consolidated, unaudited balance sheet of the Company Buyer as of June 30April 1, 2004 2011 is referred to herein as the “Company Buyer Balance Sheet.”
(c) The information in the Registration Statement or in any Regulation M-A Filing (except, in each case, for information to be supplied by or on behalf of the Company for inclusion or incorporation by reference in the Registration Statement or to be included or supplied by or on behalf of the Company for inclusion in the registration statement on Form S-4 pursuant any Regulation M-A Filing, as to which the Company Series A Preferred Stock issued in the Merger Buyer makes no representation and the Company Common Stock issuable upon conversion which shall not constitute part of the Company Series A Preferred Stock will be registered under the Securities Act (including any amendments or supplements, the “Registration Statement”Buyer SEC Documents for purpose of this Agreement), shall not at the time the Registration Statement or any such Regulation M-A Filing is filed with the SEC, at any time the Registration Statement is amended or supplemented, or at the time the Registration Statement is declared effective by the SEC SEC, as applicable, contain any untrue statement of a material fact or omit to state any material fact required to be stated in the Registration Statement therein or necessary in order to make the statements in the Registration Statement therein not misleading. The information to be supplied by or on behalf of the Company Buyer for inclusion in the joint proxy statement/prospectus (the “Proxy Statement”) /Prospectus to be sent to the stockholders of the Company in connection with the meeting of the Company’s stockholders to consider the adoption of this Agreement and the Merger (the “Company Meeting”) and , which information shall be deemed to include all information about or relating to the Partners in connection with the Fund Consent Solicitation (as herein defined) Buyer, shall not, on the date the Proxy Statement Statement/Prospectus is first mailed to stockholders of the Company and the PartnersCompany, or at the time of the Company Meeting and or at the Effective Time, contain any statement which, at such time and in light of the circumstances under which it shall be made, is false or misleading with respect to any material fact, or omit to state any material fact necessary in order to make the statements made in the Proxy Statement Statement/Prospectus not false or misleading; or omit to state any material fact necessary to correct any statement in any earlier communication with respect to the solicitation of proxies for the Company Meeting or the solicitation of consents in connection with the Fund Consent Solicitation which has become false or misleading. If at any time prior to the Effective Time any fact or event relating to the Company, any Affiliate (as defined below) of the Company, Buyer or any officers or directors of any of them, should be discovered by the Company its Affiliates which should be set forth in an amendment to the Registration Statement or a supplement to the Proxy Statement/Prospectus should be discovered by the Buyer or should occur, the Company Buyer shall promptly inform the Fund. As used in this Agreement, the termCompany of such fact or event.
Appears in 2 contracts
Samples: Merger Agreement (Skyworks Solutions, Inc.), Agreement and Plan of Merger (Advanced Analogic Technologies Inc)
SEC Filings; Financial Statements; Information Provided. (a) All The Company has filed all registration statements, forms, reports reports, certifications and other documents required to be filed by the Company with the SEC since January July 1, 2001 2013. All such registration statements, forms, reports and other documents (including those that the Company may file after the date hereof until the Closing) , but excluding the Proxy Statement), as such documents have been amended since the time of their filing, are referred to herein as the “Company SEC Reports.” Except as set forth in Section 3.4 The Company has made available to the Parent copies of all comment letters received by the Company from the staff of the SEC prior to the date hereof with respect to the Company SEC Reports and all responses to such comment letters by or on behalf of the Company Disclosure Schedulefiled by the Company with the SEC prior to the date hereof. As of their respective dates and if amended prior to the date hereof, as of the date of the last such amendment, the Company SEC Reports (i) were or will be filed on a timely basis and basis, (ii) were at the time filed, complied, or will be prepared in compliance comply when filed, as to form in all material respects with the applicable requirements of the Securities Act, Act and the Exchange Act, as and the case may berules and regulations of the SEC thereunder, applicable to such Company SEC Reports. None of Reports and (iii) did not or will not at the Company SEC Reports when filed, after giving effect to any amendments and supplements thereto time they were or are filed prior to the date hereof, contained contain any untrue statement of a material fact or omitted omit to state any a material fact required to be stated therein in such Company SEC Reports or necessary in order to make the statements thereinin such Company SEC Reports, in the light of the circumstances under which they were or will be made, not misleadingmisleading in any material respect. None No Subsidiary of the Company’s Subsidiaries has filed, or Company is obligated to file, any forms, reports, schedules, statements or other documents with the SEC. As used in this Section 3.4(a), the term “filed” shall be broadly construed to include any manner in which a document or information is furnished, supplied or otherwise made available subject to the SECreporting requirements of Section 13 or Section 15(d) of the Exchange Act.
(b) Each of the consolidated financial statements (including, in each case, any related notes and schedules) contained or to be contained in the Company SEC Reports at the time filed (i) complied or will comply as to form in all material respects with applicable accounting requirements and the published rules and regulations of the SEC with respect thereto, (ii) were or will be prepared in accordance with generally accepted accounting principles (“GAAP”) GAAP applied on a consistent basis throughout the periods involved and at the dates involved (except as may be indicated therein or in the notes to such financial statements or, in the case of unaudited interim financial statements, as permitted by the SEC on Form 10-Q under the Exchange Act or for normal year-end adjustments) Act), and (iii) fairly presented or will fairly present in all material respects the consolidated financial position of the Company and its Subsidiaries as of the dates thereof indicated and the consolidated results of its operations and cash flows for the periods indicated, in each case in accordance with GAAP, except that the unaudited interim financial statements were were, are or are will be subject to normal and recurring year-end adjustments that have not been and are not expected to be material to the Company. The unaudited balance sheet of the Company as of June 30, 2004 is referred to herein as the “Company Balance Sheetadjustments.”
(c) The information Subject to be supplied by the Company for inclusion in following sentence, (i) the registration statement Proxy Statement, on Form S-4 pursuant the date the Proxy Statement is first mailed to which the Company Series A Preferred Stock issued in the Merger and the holders of shares of Company Common Stock issuable upon conversion Stock, at the time of any amendment or supplement thereto and at the time of the Company Series A Preferred Stock will be registered under the Securities Act (including any amendments or supplements, the “Registration Statement”)Stockholders Meeting, shall not at the time the Registration Statement is declared effective by the SEC contain any untrue statement of a material fact or omit to state any material fact required to be stated in the Registration Statement therein or necessary in order to make the statements therein, in light of the circumstances in which they shall be made, not misleading in any material respect and (ii) the Proxy Statement will comply as to form in all material respects with the requirements of the Exchange Act applicable to the Proxy Statement. Notwithstanding the foregoing, the Company makes no representation or warranty with respect to statements included or incorporated by reference in the Registration Proxy Statement not misleadingbased on any information supplied by or on behalf of the Parent or the Transitory Subsidiary for inclusion or incorporation by reference therein.
(d) The Company is in compliance in all material respects with the applicable provisions of the Xxxxxxxx-Xxxxx Act. The information Each required form, report and document containing financial statements that has been filed with or submitted to the SEC was accompanied by any certifications required to be supplied filed or submitted by the Company for inclusion in the joint proxy statement/prospectus (the “Proxy Statement”) to be sent to the stockholders of the Company in connection with the meeting of the Company’s stockholders principal executive officer and principal financial officer pursuant to consider the adoption of this Agreement and the Merger (the “Company Meeting”) and the Partners in connection with the Fund Consent Solicitation (as herein defined) shall not, on the date the Proxy Statement is first mailed to stockholders of the Company and the PartnersXxxxxxxx-Xxxxx Act and, at the time of filing or submission of each such certification, any such certification complied in all material respects with the applicable provisions of the Xxxxxxxx-Xxxxx Act.
(e) The Company maintains disclosure controls and procedures required by Rule 13a-15 or 15d-15 under the Exchange Act. Such disclosure controls and procedures are designed to ensure that all material information concerning the Company Meeting and at the Effective Time, contain any statement which, at such time and in light of the circumstances under which it shall be made, is false or misleading with respect to any material fact, or omit to state any material fact necessary in order to make the statements made in the Proxy Statement not false or misleading; or omit to state any material fact necessary to correct any statement in any earlier communication with respect known on a timely basis to the solicitation of proxies individuals responsible for the Company Meeting or the solicitation of consents in connection with the Fund Consent Solicitation which has become false or misleading. If at any time prior to the Effective Time any event relating to the Company, any Affiliate (as defined below) preparation of the Company, or any officers or directors ’s filings with the SEC and other public disclosure documents. The Company is in compliance in all material respects with the applicable listing and other rules and regulations of any of them, should be discovered by the Company which should be set forth in an amendment to the Registration Statement or a supplement to the Proxy Statement, the Company shall promptly inform the Fund. As used in this Agreement, the termNew York Stock Exchange.
Appears in 2 contracts
Samples: Merger Agreement (Risley John Carter), Merger Agreement (First Marblehead Corp)
SEC Filings; Financial Statements; Information Provided. (a) All The Company has filed all registration statements, forms, reports and other documents required to be filed by the Company with the SEC since January 1, 2001 2003. All such registration statements, forms, reports and other documents (including those that the Company may file after the date hereof until the Closing) are referred to herein as the “Company SEC Reports.” Except as set forth in Section 3.4 of the Company Disclosure Schedule, the The Company SEC Reports (i) were or will be filed on a timely basis and basis, (ii) were at the time filed, complied, or will be prepared in compliance comply when filed, as to form in all material respects with the applicable requirements of the Securities Act, Act and the Exchange Act, as the case may be, and the rules and regulations of the SEC thereunder applicable to such Company SEC Reports. None of , and (iii) did not or will not at the Company SEC Reports when filed, after giving effect to any amendments and supplements thereto time they were or are filed prior to the date hereof, contained contain any untrue statement of a material fact or omitted omit to state any a material fact required to be stated therein in such Company SEC Reports or necessary in order to make the statements thereinin such Company SEC Reports, in the light of the circumstances under which they were made, not misleading. None No Subsidiary of the Company’s Subsidiaries has filed, or Company is obligated to file, any forms, reports, schedules, statements or other documents with the SEC. As used in this Section 3.4(a), the term “filed” shall be broadly construed to include any manner in which a document or information is furnished, supplied or otherwise made available subject to the SECreporting requirements of Section 13(a) or Section 15(d) of the Exchange Act.
(b) Each of the consolidated financial statements (including, in each case, any related notes and schedules) contained or to be contained in the Company SEC Reports at the time filed (i) complied or will comply as to form in all material respects with applicable accounting requirements and the published rules and regulations of the SEC with respect thereto, (ii) were or will be prepared in accordance with United States generally accepted accounting principles (“GAAP”) applied on a consistent basis throughout the periods involved (except as may be indicated in the notes to such financial statements or, in the case of unaudited interim financial statements, as permitted by the SEC on Form 10-Q under the Exchange Act or for normal year-end adjustments) Act), and (iii) fairly presented or will fairly present in all material respects the consolidated financial position of the Company and its Subsidiaries as of the dates thereof indicated and the consolidated results of its operations and cash flows for the periods indicated, except that the unaudited interim financial statements were or are subject to normal and recurring year-end adjustments that have not been and are not expected to be material to the Companyin immaterial amounts. The consolidated, unaudited balance sheet of the Company as of June 30, 2004 2005 is referred to herein as the “Company Balance Sheet.” The principal executive officer of Company and the principal financial officer of Company (and each former principal executive officer or principal financial officer of Company) have made the certifications required by Sections 302 and 906 of the Sxxxxxxx-Xxxxx Act of 2002 (the “Sxxxxxxx-Xxxxx Act”), and the rules and regulations of the SEC promulgated thereunder, with respect to the Company SEC Reports filed since such certifications have been required. For purposes of the preceding sentence, “principal executive officer” and “principal financial officer” shall have the meanings given to such terms in the Sxxxxxxx-Xxxxx Act. Since December 31, 2004, to the Company’s Knowledge, no former or current employee of the Company or any of its Subsidiaries, or any member of the Company’s public auditing firm, has alleged in writing to any of the executive officers of the Company that the Company or any of its Subsidiaries has engaged in questionable accounting or auditing practices.
(c) The information to be supplied by or on behalf of the Company for inclusion in the registration proxy statement on Form S-4 pursuant to which the Company Series A Preferred Stock issued in the Merger and the Company Common Stock issuable upon conversion of the Company Series A Preferred Stock will be registered under the Securities Act (including any amendments or supplements, the “Registration Statement”), shall not at the time the Registration Statement is declared effective by the SEC contain any untrue statement of a material fact or omit to state any material fact required to be stated in the Registration Statement or necessary in order to make the statements in the Registration Statement not misleading. The information to be supplied by the Company for inclusion in the joint proxy statement/prospectus (the “Proxy Statement”) to be sent to the stockholders of the Company (the “Proxy Statement”) in connection with the meeting of the Company’s stockholders to consider the adoption of this Agreement and the Merger (the “Company Meeting”) and the Partners in connection with the Fund Consent Solicitation (as herein defined) Meeting shall not, on the date the Proxy Statement is first mailed to stockholders of the Company and the PartnersCompany, at the time of the Company Meeting and or at the Effective Time, contain any statement whichthat, at such time and in light of the circumstances under which it shall be made, is false or misleading with respect to any material fact, or omit to state any material fact necessary in order to make the statements made in the Proxy Statement not false or misleadingmisleading in light of the circumstances under which they were or shall be made; or omit to state any material fact necessary to correct any statement in any earlier communication with respect to the solicitation of proxies for the Company Meeting or the solicitation of consents in connection with the Fund Consent Solicitation which that has become false or misleading. If at any time prior to the Effective Time Company Meeting any fact or event relating to the Company, any Affiliate (as defined below) of the Company, Company or any officers or directors of any of them, its Affiliates that should be set forth in a supplement to the Proxy Statement should be discovered by the Company which or should be set forth in an amendment to the Registration Statement or a supplement to the Proxy Statementoccur, the Company shall shall, promptly after becoming aware thereof, inform the FundBuyer of such fact or event.
(d) The Company maintains disclosure controls and procedures required by Rule 13a-15 or 15d-15 under the Exchange Act. As used Such disclosure controls and procedures are effective to ensure that all material information concerning the Company is made known on a timely basis to the individuals responsible for the preparation of the Company’s filings with the SEC and other public disclosure documents. The Company is in this Agreement, compliance with the termapplicable listing and other rules and regulations of The NASDAQ National Market.
Appears in 2 contracts
Samples: Merger Agreement (Brooktrout Inc), Merger Agreement (Brooktrout Inc)
SEC Filings; Financial Statements; Information Provided. (a) All Except as set forth in Section 3.4(a) of the Company Disclosure Schedule, all forms, reports and other documents required to be filed by the Company with the SEC since January 1, 2001 (including those that the Company may file after the date hereof until the Closing) are referred to herein as the “Company SEC Reports.” Except as set forth in Section 3.4 of the Company Disclosure Schedule, the The Company SEC Reports (i) were or will be filed on a timely basis and (ii) were or will be prepared in compliance in all material respects with the applicable requirements of the Securities Act, and the Exchange Act, as the case may be, applicable to such Company SEC Reports. None of the Company SEC Reports when filed, after giving effect to any amendments and supplements thereto filed prior to the date hereof, 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. None of the Company’s Subsidiaries has filed, or is obligated to file, any forms, reports, schedules, statements or other documents with the SEC. As used in this Section 3.4(a), the term “filed” shall be broadly construed to include any manner in which a document or information is furnished, supplied or otherwise made available to the SEC.
(b) Each of the consolidated financial statements (including, in each case, any related notes and schedules) contained or to be contained in the Company SEC Reports (i) complied or will comply as to form in all material respects with applicable accounting requirements and the published rules and regulations of the SEC with respect thereto, (ii) were or will be prepared in accordance with generally accepted accounting principles (“GAAP”) applied on a consistent basis throughout the periods involved (except as may be indicated in the notes to such financial statements or, in the case of unaudited statements, as permitted by the SEC on Form 10-Q under the Exchange Act or for normal year-end adjustments) and (iii) fairly presented or will fairly present the financial position of the Company as of the dates thereof and the results of its operations and cash flows for the periods indicated, except that the unaudited interim financial statements were or are subject to normal and recurring year-end adjustments that have not been and are not expected to be material to the Company. The unaudited balance sheet of the Company as of June 30, 2004 2004, a copy of which has been provided to CNLRP and is attached hereto as Exhibit E hereto, is referred to herein as the “Company Balance Sheet.”
(c) The Company has established and maintained (i) disclosure controls and procedures (as defined in Rule 13a-15 promulgated under the Exchange Act) and (ii) internal control over financial reporting (as defined in Rule 13a-15 promulgated under the Exchange Act). To Company’s Knowledge, (i) such disclosure controls and procedures are effective to ensure that material information relating to the Company, including its consolidated subsidiaries, is made known to the Company’s senior management by others within those entities, particularly during the period when the Company’s periodic reports to which such information relates are required to be prepared, (ii) such internal control over financial reporting provides reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with GAAP, (iii) there are no significant deficiencies or material weaknesses in the design or operation of Company’s internal control over financial reporting which could adversely affect Company’s ability to record, process, summarize and report financial data and (iv) there is no fraud, whether or not material, that involves management or other employees who have a significant role in Company’s internal control over financial reporting. The Company has made available to CNLRP complete and correct copies of all formally written descriptions of, and all policies, manuals and other documents promulgating, such disclosure controls and procedures and internal control over financial reporting.
(d) The information to be supplied by the Company for inclusion in the registration statement on Form S-4 pursuant to which the Company Common Stock and Company Series A C Preferred Stock issued in connection with the Merger and the Company Common Stock issuable upon conversion of the Company Series A Preferred Stock will be registered under the Securities Act (including any amendments or supplements, the “Registration Statement”), shall not at the time the Registration Statement is declared effective by the SEC contain any untrue statement of a material fact or omit to state any material fact required to be stated in the Registration Statement or necessary in order to make the statements in the Registration Statement not misleading. The information to be supplied by the Company for inclusion in the joint proxy statement/prospectus (the “Proxy Statement”) to be sent to the stockholders of the Company in connection with the meeting of the Company’s stockholders to consider the adoption of this Agreement Agreement, the Merger and the Merger Company Charter Amendments (the “Company Meeting”) and the Partners stockholders of CNLRP in connection with the Fund Consent Solicitation meeting of CNLRP’s stockholders to consider the adoption of this Agreement, the Merger and the CNLRP Charter Amendment (as herein definedthe “CNLRP Meeting”) shall not, on the date the Proxy Statement is first mailed to stockholders of the Company and the PartnersCNLRP, at the time of the Company Meeting and CNLRP Meeting and at the Effective Time, contain any statement which, at such time and in light of the circumstances under which it shall be made, is false or misleading with respect to any material fact, or omit to state any material fact necessary in order to make the statements made in the Proxy Statement not false or misleading; or omit to state any material fact necessary to correct any statement in any earlier communication with respect to the solicitation of proxies for the Company Meeting or the solicitation of consents in connection with the Fund Consent Solicitation CNLRP Meeting which has become false or misleading. If at any time prior to the Effective Time any event relating to the Company, Company or any Affiliate (as defined below) of the Company, or any officers or directors of any of them, should be discovered by the Company which should be set forth in an amendment to the Registration Statement or a supplement to the Proxy Statement, the Company shall promptly inform the FundCNLRP. As used in this Agreement, the termterm “Affiliate” shall have the same meaning as such term is defined in Rule 405 promulgated under the Securities Act. The Registration Statement shall comply in all material respects as to form and substance with the requirements of the Securities Act. The Proxy Statement shall comply in all material respects as to form and substance with the requirements of the Exchange Act. The Company makes no representation or warranty with respect to any information supplied by CNLRP which is contained in the Registration Statement or Proxy Statement.
Appears in 2 contracts
Samples: Merger Agreement (U S Restaurant Properties Inc), Merger Agreement (CNL Restaurant Properties Inc)
SEC Filings; Financial Statements; Information Provided. (a) All The Company has filed all registration statements, forms, reports and other documents required to be filed by the Company with the SEC since January 1, 2001 2002. All such registration statements, forms, reports and other documents (including those that the Company may file after the date hereof until the Closing) are referred to herein as the “Company SEC Reports.” Except as set forth in Section 3.4 of the Company Disclosure Schedule, the The Company SEC Reports (i) were or will be filed on a timely basis and basis, (ii) were at the time filed, complied, or will be prepared in compliance comply when filed, as to form in all material respects with the applicable requirements of the Securities Act, Act and the Exchange Act, as the case may be, and the rules and regulations of the SEC thereunder applicable to such Company SEC Reports. None of , and (iii) did not or will not at the Company SEC Reports when filed, after giving effect to any amendments and supplements thereto time they were or are filed prior to the date hereof, contained contain any untrue statement of a material fact or omitted omit to state any a material fact required to be stated therein in such Company SEC Reports or necessary in order to make the statements thereinin such Company SEC Reports, in the light of the circumstances under which they were made, not misleading. None No Subsidiary of the Company’s Subsidiaries has filed, or Company is obligated to file, any forms, reports, schedules, statements or other documents with the SEC. As used in this Section 3.4(a), the term “filed” shall be broadly construed to include any manner in which a document or information is furnished, supplied or otherwise made available subject to the SECreporting requirements of Section 13(a) or Section 15(d) of the Exchange Act.
(b) Each of the consolidated financial statements (including, in each case, any related notes and schedules) contained or incorporated by reference or to be contained or incorporated by reference in the Company SEC Reports at the time filed (i) complied or will comply as to form in all material respects with applicable accounting requirements and the published rules and regulations of the SEC with respect thereto, (ii) were or will be prepared in accordance with United States generally accepted accounting principles (“GAAP”) applied on a consistent basis throughout the periods involved (except as may be indicated in the notes to such financial statements or, in the case of unaudited interim financial statements, as permitted by the SEC on Form 10-Q under the Exchange Act or for normal year-end adjustments) Act), and (iii) fairly presented or will fairly present in all material respects the consolidated financial position of the Company and its Subsidiaries as of the dates thereof indicated and the consolidated results of its operations and cash flows for the periods indicated, except that the unaudited interim financial statements were or are subject to normal and recurring year-end adjustments that have not been and are not expected to be material to the Companyadjustments. The consolidated, unaudited balance sheet of the Company as of June 30April 1, 2004 2005 is referred to herein as the “Company Balance Sheet.”
(c) The information to be supplied by or on behalf of the Company for inclusion in the registration proxy statement on Form S-4 pursuant to which the Company Series A Preferred Stock issued in the Merger and the Company Common Stock issuable upon conversion of the Company Series A Preferred Stock will be registered under the Securities Act (including any amendments or supplements, the “Registration Statement”), shall not at the time the Registration Statement is declared effective by the SEC contain any untrue statement of a material fact or omit to state any material fact required to be stated in the Registration Statement or necessary in order to make the statements in the Registration Statement not misleading. The information to be supplied by the Company for inclusion in the joint proxy statement/prospectus (the “Proxy Statement”) to be sent to the stockholders of the Company (the “Proxy Statement”) in connection with the meeting of the Company’s stockholders to consider the adoption of this Agreement and the Merger (the “Company Meeting”) and the Partners in connection with the Fund Consent Solicitation (as herein defined) Meeting shall not, on the date the Proxy Statement is first mailed to stockholders of the Company and the PartnersCompany, at the time of the Company Meeting and or at the Effective Time, contain any statement which, at such time and in light of the circumstances under which it shall be made, is false or misleading with respect to any material fact, or omit to state any material fact necessary in order to make the statements made in the Proxy Statement not false or misleadingmisleading in light of the circumstances under which they were or shall be made; or omit to state any material fact necessary to correct any statement in any earlier communication with respect to the solicitation of proxies for the Company Meeting or the solicitation of consents in connection with the Fund Consent Solicitation which has become false or misleading. If at any time prior to the Effective Time Company Meeting any fact or event relating to the Company, any Affiliate (as defined below) of the Company, Company or any officers or directors of any of them, its Affiliates which should be set forth in a supplement to the Proxy Statement should be discovered by the Company which or should be set forth in an amendment to the Registration Statement or a supplement to the Proxy Statementoccur, the Company shall shall, promptly after becoming aware thereof, inform the FundBuyer of such fact or event.
(d) The Company maintains disclosure controls and procedures required by Rule 13a-15 or 15d-15 under the Exchange Act. As used Such disclosure controls and procedures are effective to ensure that all material information concerning the Company is made known on a timely basis to the individuals responsible for the preparation of the Company’s filings with the SEC and other public disclosure documents. The Company is in this Agreementcompliance with the applicable listing and other rules and regulations of The Nasdaq National Market. The certificates of the Chief Executive Officer and Chief Financial Officer of the Company required by Rules 13a-14 and 15d-14 of the Exchange Act or 18 U.S.C. §1350 (Section 906 of SOX) with respect to the Company SEC Reports, the termas applicable, were true and correct in all material respects as of their respective dates.
Appears in 2 contracts
Samples: Merger Agreement (Stride Rite Corp), Merger Agreement (Saucony Inc)
SEC Filings; Financial Statements; Information Provided. (a) All The Company has filed all registration statements, forms, reports and other documents required to be filed by the Company with the SEC since January 1, 2001 2015. All such registration statements, forms, reports and other documents (including exhibits, all other information incorporated therein and any supplements or amendments thereto and those registration statements, forms, reports and other documents that the Company may file after the date hereof until the Closing) are referred to herein as the “Company SEC Reports.” Except as set forth in Section 3.4 of the Company Disclosure Schedule, the The Company SEC Reports (i) were or will be filed on a timely basis and basis, (ii) were at the time filed, complied, or will be prepared in compliance comply when filed, as to form in all material respects with the applicable requirements of the Securities Act, Act and the Exchange Act, as the case may be, Act applicable to such Company SEC Reports. None of Reports and (iii) except to the extent that information contained in a Company SEC Reports when filedReport has been revised, after giving effect to any amendments and supplements thereto amended, modified or superseded by a later filed Company SEC Report prior to the date hereof, contained did not or will not at the time they were or are filed contain any untrue statement of a material fact or omitted omit to state any a material fact required to be stated therein in such Company SEC Reports or necessary in order to make the statements thereinin such Company SEC Reports, in the light of the circumstances under which they were made, not misleading. None The Company has not as of the Company’s Subsidiaries has filed, or is obligated date hereof received any written comments from the SEC with respect to file, any forms, reports, schedules, statements or other documents with of the SEC. As used in this Section 3.4(a), the term “filed” shall be broadly construed to include any manner in Company SEC Reports which a document or information is furnished, supplied or otherwise made available to the SECremain unresolved.
(b) Each of the consolidated financial statements (including, in each case, any related notes and schedules) contained or to be contained in the Company SEC Reports at the time filed (i) complied or will comply as to form in all material respects with applicable accounting requirements and the published rules and regulations of the SEC with respect thereto, (ii) were or will be prepared in accordance with generally accepted accounting principles (“GAAP”) GAAP applied on a consistent basis throughout the periods involved (except as may be indicated in the notes to such financial statements or, in the case of unaudited interim financial statements, as permitted by the SEC on Form 10-Q under the Exchange Act or for normal year-end adjustments) Act), and (iii) fairly presented or will fairly present in all material respects the consolidated financial position of the Company and its Subsidiaries as of the dates thereof indicated and the consolidated results of its operations and cash flows for the periods indicated, except that the unaudited interim financial statements were or are subject to normal and recurring year-end adjustments that have not been and are not expected to be material to the Company. The unaudited balance sheet of the Company as of June 30, 2004 is referred to herein as the “Company Balance Sheetaudit adjustments.”
(c) The information to be supplied by or on behalf of the Company for inclusion in the registration statement Schedule TO or the Offer Documents, on Form S-4 pursuant the date the Schedule TO is filed with the SEC, on the date of any amendment or supplement thereto and on the date the Offer Documents are first published, sent or given to which the Company Series A Preferred Stock issued in the Merger and the holders of shares of Company Common Stock issuable upon conversion of the Company Series A Preferred Stock will be registered under the Securities Act (including any amendments or supplements, the “Registration Statement”)Stock, shall not at the time the Registration Statement is declared effective by the SEC contain any untrue statement of a material fact or omit to state any material fact required to be stated in the Registration Statement or necessary in order to make the statements in the Registration Statement not misleading. The information to be supplied by the Company for inclusion in the joint proxy statement/prospectus (the “Proxy Statement”) to be sent to the stockholders of the Company in connection with the meeting of the Company’s stockholders to consider the adoption of this Agreement and the Merger (the “Company Meeting”) and the Partners in connection with the Fund Consent Solicitation (as herein defined) shall nottherein, on the date the Proxy Statement is first mailed to stockholders of the Company and the Partners, at the time of the Company Meeting and at the Effective Time, contain any statement which, at such time and in light of the circumstances under in which it they shall be made, not misleading. On the date the Schedule 14D-9 is false filed with the SEC, on the date of any amendment or misleading supplement thereto and on the date the Schedule 14D-9 is first published, sent or given to holders of shares of Company Common Stock, the Schedule 14D-9 (a) will comply as to form in all material respects with respect to the requirements of the Exchange Act and (b) will not contain any untrue statement of a material fact, fact or omit to state any material fact necessary in order to make the statements made therein, in the Proxy Statement light of the circumstances under which they are made, not false misleading. Notwithstanding the foregoing provisions of this Section 3.5(c), no representation or misleading; or omit to state any material fact necessary to correct any statement in any earlier communication warranty is made by the Company with respect to information or statements made or incorporated by reference in the solicitation Schedule 14D-9 based upon information supplied by the Parent, the Purchaser or any of proxies their respective Representatives expressly for use or incorporation by reference therein.
(d) The Company is in compliance in all material respects with the applicable provisions of the Xxxxxxxx-Xxxxx Act. Each required form, report and document containing financial statements that has been filed with or submitted to the SEC was accompanied by any certifications required to be filed or submitted by the Company’s principal executive officer and principal financial officer pursuant to the Xxxxxxxx-Xxxxx Act and, at the time of filing or submission of each such certification, any such certification complied in all material respects with the applicable provisions of the Xxxxxxxx-Xxxxx Act.
(e) The Company maintains disclosure controls and procedures required by Rule 13a-15 or 15d-15 under the Exchange Act. Such disclosure controls and procedures are designed to provide reasonable assurance that all information concerning the Company that could have a material effect on the financial statements is made known on a timely basis to the individuals responsible for the Company Meeting or preparation of the solicitation of consents in connection Company’s filings with the Fund Consent Solicitation which SEC and other public disclosure documents. The Company has become false or misleadingestablished and maintained a system of internal control over financial reporting (as defined in Rule 13a-15 under the Exchange Act). If at any time Such internal controls are designed to provide reasonable assurance regarding the reliability of the Company’s financial reporting and the preparation of Company financial statements for external purposes in accordance with GAAP. The Company’s principal executive officer and its principal financial officer have disclosed, based on the most recent evaluation of internal control over financial reporting prior to the Effective Time any event relating date of this Agreement, to the Company’s auditors and the audit committee of the Company Board (and made available to Parent a summary of the significant aspects of such disclosure, if any) (i) all known significant deficiencies and material weaknesses in the design or operation of internal controls over financial reporting that are reasonably likely to adversely affect in any Affiliate material respect the Company’s ability to record, process, summarize and report financial information, 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 control over financial reporting. The Company is in compliance in all material respects with the applicable listing and other rules and regulations of the Nasdaq Stock Market.
(f) The Company is not subject to any “Off-Balance Sheet Arrangement” (as defined belowin Item 303(a) of Regulation S-K under the Company, or any officers or directors of any of them, should be discovered by the Company which should be set forth in an amendment to the Registration Statement or a supplement to the Proxy Statement, the Company shall promptly inform the Fund. As used in this Agreement, the termSecurities Act).
Appears in 2 contracts
Samples: Merger Agreement (Cynosure Inc), Merger Agreement (Hologic Inc)
SEC Filings; Financial Statements; Information Provided. (a) All The Company has filed all registration statements, forms, reports and other documents required to be filed by the Company with the SEC since January 1, 2001 2003. All such registration statements, forms, reports and other documents (including those that the Company may file after the date hereof until the Closing) ), together with all certifications required pursuant to the Sxxxxxxx-Xxxxx Act of 2002 and the related rules and regulations promulgated under or pursuant to such act (the “Sxxxxxxx-Xxxxx Act”), are referred to herein as the “Company SEC Reports.” Except as set forth to the extent that information contained in Section 3.4 any Company SEC Report filed and publicly available prior to the date of this Agreement has been specifically revised or superseded by a later filed Company SEC Report filed prior to the Company Disclosure Scheduledate of this Agreement, the Company SEC Reports (i) other than the Company’s Annual Report on Form 10-K for the fiscal year ending December 31, 2002 and the Company’s Quarterly Reports on Form 10-Q for the fiscal quarters ending March 31, June 30 and September 30, 2003, were or will be filed on a timely basis and basis, (ii) were or will be prepared in compliance at the time filed, complied as to form in all material respects with the applicable requirements of the Securities Act, Act and the Exchange Act, as the case may be, the Sxxxxxxx-Xxxxx Act and the rules and regulations of the SEC thereunder applicable to such Company SEC Reports. None of , and (iii) did not at the Company SEC Reports when filed, after giving effect to any amendments and supplements thereto time they were filed prior to the date hereof, contained contain any untrue statement of a material fact or omitted omit to state any a material fact required to be stated therein in such Company SEC Reports or necessary in order to make the statements thereinin such Company SEC Reports, in the light of the circumstances under which they were made, not misleading. None No Subsidiary of the Company is subject to the reporting requirements of Section 13(a) or Section 15(d) of the Exchange Act. The Company has made available to Parent true, correct and complete copies of all correspondence between the SEC, on the one hand, and the Company and any of its Subsidiaries, on the other, since January 1, 2003, including all SEC comment letters on the Company SEC Reports and responses to such comment letters by or on behalf of the Company’s Subsidiaries has filed. To the knowledge of the Company, as of the date hereof, none of the Company SEC Reports is the subject of ongoing SEC review or is obligated to file, any forms, reports, schedules, statements outstanding SEC comment. There are no off-balance sheet structures or other documents transactions with the SEC. As used in this Section 3.4(a), the term “filed” shall be broadly construed to include any manner in which a document or information is furnished, supplied or otherwise made available respect to the SECCompany or any of its Subsidiaries that would be required to be reported or set forth in the Company SEC Reports.
(b) Each Except to the extent that information contained in any Company SEC Report filed and publicly available prior to the date of this Agreement has been specifically revised or superseded by a later filed Company SEC Report filed prior to the date of this Agreement, each of the consolidated financial statements (including, in each case, any related notes and schedules) contained in or to be contained incorporated by reference in the Company SEC Reports at the time filed (i) complied or will comply as to form in all material respects with applicable accounting requirements and the published rules and regulations of the SEC with respect thereto, thereto and (ii) were or will be prepared in accordance with United States generally accepted accounting principles (“GAAP”) applied on a consistent basis throughout the periods involved (except as may be indicated in the notes to such financial statements or, in the case of unaudited interim financial statements, as permitted by the SEC on with respect to Form 10-Q under the Exchange Act Act). Except to the extent that information contained in any Company SEC Report filed and publicly available prior to the date of this Agreement has been specifically revised or for normal year-end adjustmentssuperseded by a later filed Company SEC Report filed prior to the date of this Agreement, each of the consolidated balance sheets (including, in each case, any related notes and schedules) and (iii) contained or incorporated by reference in the Company SEC Reports at the time filed fairly presented or will fairly present in all material respects the consolidated financial position of the Company and its Subsidiaries as of the dates thereof indicated and each of the consolidated statements of income and of changes in financial position contained or incorporated by reference in the Company SEC Reports (including, in each case, any related notes and schedules) fairly presented in all material respects the consolidated results of operations, retained earnings and changes in financial position, as the case may be, of the Company and its operations and cash flows Subsidiaries for the periods indicatedset forth therein, except that the unaudited interim financial statements were or are subject to normal and recurring year-end adjustments that have not been adjustments.
(c) Except as and are not expected to be material to the Company. The unaudited extent set forth on the consolidated balance sheet of the Company and the consolidated Subsidiaries as at December 31, 2005 (including the notes thereto and related management discussion and analysis) included in the Company’s Annual Report on Form 10-K for the fiscal year ended December 31, 2005, neither the Company nor any Subsidiary has any liability or obligation of June 30any nature (whether accrued, 2004 absolute, contingent or otherwise and whether or not required to be disclosed), including those relating to matters involving any Environmental Law, except for liabilities and obligations (i) incurred in connection with the transactions contemplated hereby, (ii) incurred in the ordinary course of business and in a manner consistent with past practice since December 31, 2005, or (iii) that have not had, and is referred not reasonably expected to herein as the “have, a Company Balance SheetMaterial Adverse Effect.”
(cd) The information to be supplied by or on behalf of the Company for inclusion in the registration proxy statement on Form S-4 pursuant to which be sent to the Company Series A Preferred Stock issued in the Merger and the Company Common Stock issuable upon conversion stockholders of the Company Series A Preferred Stock will be registered under the Securities Act (including any amendments or supplements, the “Registration Proxy Statement”)) in connection with the Company Meeting will not, shall not on the date it is first mailed to the stockholders of the Company or at the time of the Registration Statement is declared effective by the SEC Company Meeting, contain any untrue statement of a material fact or omit to state any material fact required to be stated in the Registration Statement therein or necessary in order to make the statements in the Registration Statement not misleading. The information to be supplied by the Company for inclusion in the joint proxy statement/prospectus (the “Proxy Statement”) to be sent to the stockholders of the Company in connection with the meeting of the Company’s stockholders to consider the adoption of this Agreement and the Merger (the “Company Meeting”) and the Partners in connection with the Fund Consent Solicitation (as herein defined) shall nottherein, on the date the Proxy Statement is first mailed to stockholders of the Company and the Partners, at the time of the Company Meeting and at the Effective Time, contain any statement which, at such time and in light of the circumstances under which it shall be they are made, is false not misleading. The Proxy Statement will comply as to form in all material respects with the provisions of the Exchange Act and the rules and regulations promulgated by the SEC thereunder. The representations and warranties contained in this Section 5.6(d) will not apply to statements or misleading with respect to any material fact, or omit to state any material fact necessary in order to make the statements made omissions included in the Proxy Statement not false or misleading; or omit to state any material fact necessary to correct any statement other filings made with the SEC based upon information furnished in any earlier communication with respect writing to the solicitation Company by Parent or Merger Sub specifically for use therein.
(e) The Company maintains disclosure controls and procedures in accordance with Rules 13a-15 or 15d-15 promulgated under the Exchange Act. Such disclosure controls and procedures were effective as of proxies December 31, 2005, and are otherwise reasonably designed, to ensure that all material information concerning the Company and its Subsidiaries which is required to be disclosed by the Company in the Company SEC Reports is made known on a timely basis to the individuals responsible for the Company Meeting or preparation of the solicitation of consents in connection Company’s filings with the Fund Consent Solicitation which SEC and other public disclosure documents. The Company has become false or misleading. If at any time disclosed, based on its most recent evaluation prior to the Effective Time any event relating date hereof, to the Company’s auditors and the audit committee of the Company Board (A) any significant deficiencies and material weaknesses in the design or operation of internal controls over financial reporting which are reasonably likely to adversely affect in any material respect the Company’s ability to record, process, summarize and report financial information and (B) any Affiliate fraud, whether or not material, that involves management or other employees who have a significant role in the Company’s internal controls over financial reporting. The Company has made available to Parent a summary of any such disclosure made by management to the Company’s auditors and audit committee since January 1, 2003, and Section 5.6(e) of the Company Disclosure Schedule sets forth a summary of all current significant deficiencies and material weaknesses in the design or operation of internal controls over financial reporting. Since January 1, 2003, no current or former employee of the Company or any of its Subsidiaries has alleged to any of the senior officers of the Company or such Subsidiaries that the Company or any such Subsidiaries has engaged in questionable or fraudulent accounting or auditing practices. No attorney representing the Company or any of its Subsidiaries, whether or not employed by the Company or any of its Subsidiaries, has reported evidence of a violation of securities Laws, breach of fiduciary duty or similar violation by the Company or any of its officers, directors, employees or agents to the Company Board or any committee thereof or to any director, in his or her capacity as a director, or officer, in his or her capacity as an officer, of the Company or any of its Subsidiaries.
(as defined belowf) The Company and, to the knowledge of the Company, or each of its officers and directors are in compliance with, and have complied, in each case in all material respects with (i) the applicable listing and other rules and regulations of the NYSE (and, except as set forth in Section 5.6(f) of the Company Disclosure Schedule, has not since January 1, 2003 received any officers or directors notice from the NYSE asserting any non-compliance with such rules and regulations), and (ii) the applicable provisions of any of them, should be discovered the Sxxxxxxx-Xxxxx Act. There are no outstanding loans made by the Company which should be set forth or any of its Affiliates to any executive officer (as defined in an amendment to Rule 3b-7 under the Registration Statement Exchange Act) or a supplement to the Proxy Statement, director of the Company shall promptly inform or any Subsidiary of the FundCompany. As used Except as permitted by the Exchange Act, including Sections 13(k)(2) and (3), since the enactment of the Sxxxxxxx-Xxxxx Act, neither the Company nor any of its Affiliates has made, arranged or modified (in this Agreement, any material way) personal loans or “extension of credit” to any executive officer (as defined in Rule 3b-7 under the termExchange Act) or director of the Company or any Subsidiary of the Company.
Appears in 2 contracts
Samples: Merger Agreement (Symbol Technologies Inc), Merger Agreement (Motorola Inc)
SEC Filings; Financial Statements; Information Provided. (a) All The Buyer has filed all registration statements, forms, reports and other documents required to be filed by the Company Buyer with the SEC since January 1, 2001 2002. All such registration statements, forms, reports and other documents (including those that the Company Buyer may file after the date hereof until the Closing) are referred to herein as the “Company Buyer SEC Reports.” Except as set forth in Section 3.4 of the Company Disclosure Schedule, the Company The Buyer SEC Reports (i) were or will be filed on a timely basis and basis, (ii) were at the time filed, complied, or will be prepared in compliance comply when filed, as to form in all material respects with the applicable requirements of the Securities Act, Act and the Exchange Act, as the case may be, and the rules and regulations of the SEC thereunder applicable to such Company Buyer SEC Reports. None of , and (iii) did not or will not at the Company SEC Reports when filed, after giving effect to any amendments and supplements thereto time they were or are filed prior to the date hereof, contained contain any untrue statement of a material fact or omitted omit to state any a material fact required to be stated therein in such Buyer SEC Reports or necessary in order to make the statements thereinin such Buyer SEC Reports, in the light of the circumstances under which they were made, not misleading. None No Subsidiary of the Company’s Subsidiaries has filed, or Buyer is obligated to file, any forms, reports, schedules, statements or other documents with the SEC. As used in this Section 3.4(a), the term “filed” shall be broadly construed to include any manner in which a document or information is furnished, supplied or otherwise made available subject to the SECreporting requirements of Section 13(a) or Section 15(d) of the Exchange Act.
(b) Each of the consolidated financial statements (including, in each case, any related notes and schedules) contained or incorporated by reference or to be contained or incorporated by reference in the Company Buyer SEC Reports at the time filed (i) complied or will comply as to form in all material respects with applicable accounting requirements and the published rules and regulations of the SEC with respect thereto, (ii) were or will be prepared in accordance with generally accepted accounting principles (“GAAP”) GAAP applied on a consistent basis throughout the periods involved (except as may be indicated in the notes to such financial statements or, in the case of unaudited statements, as permitted by the SEC on Form 10-Q under the Exchange Act or for normal year-end adjustmentsAct) and (iii) fairly presented or will fairly present in all material respects the consolidated financial position of the Company Buyer and its Subsidiaries as of the dates thereof indicated and the consolidated results of its operations and cash flows for the periods indicated, except that the unaudited interim financial statements were or are subject to normal and recurring year-end adjustments that have not been and are not expected to be material to the Companyadjustments. The consolidated, unaudited balance sheet of the Company Buyer as of June 30March 4, 2004 2005 is referred to herein as the “Company Buyer Balance Sheet.”
(c) The information to be supplied by or on behalf of the Company Buyer for inclusion in the registration statement on Form S-4 pursuant to which the Company Series A Preferred Stock issued in the Merger and the Company Common Stock issuable upon conversion of the Company Series A Preferred Stock will be registered under the Securities Act (including any amendments or supplements, the “Registration Statement”), shall not at the time the Registration Proxy Statement is declared effective by the SEC contain any untrue statement of a material fact or omit to state any material fact required to be stated in the Registration Statement or necessary in order to make the statements in the Registration Statement not misleading. The information to be supplied by the Company for inclusion in the joint proxy statement/prospectus (the “Proxy Statement”) to be sent to the stockholders of the Company in connection with the meeting of the Company’s stockholders to consider the adoption of this Agreement and the Merger (the “Company Meeting”) and the Partners in connection with the Fund Consent Solicitation (as herein defined) Meeting shall not, on the date the Proxy Statement is first mailed to stockholders of the Company and the PartnersCompany, at the time of the Company Meeting and or at the Effective Time, contain any statement which, at such time and in light of the circumstances under which it shall be made, is false or misleading with respect to any material fact, or omit to state any material fact necessary in order to make the statements made in the Proxy Statement not false or misleading; or omit to state any material fact necessary to correct any statement in any earlier communication with respect to the solicitation of proxies for the Company Meeting or the solicitation of consents in connection with the Fund Consent Solicitation which has become false or misleading. If at any time prior to the Effective Time Company Meeting any fact or event relating to the Company, any Affiliate (as defined below) of the Company, Buyer or any officers or directors of any of them, should be discovered by the Company its Affiliates which should be set forth in an amendment to the Registration Statement or a supplement to the Proxy StatementStatement should be discovered by the Buyer or should occur, the Company shall Buyer shall, promptly after becoming aware thereof, inform the Fund. As used Company of such fact or event.
(d) The certificates of the Chief Executive Officer and Chief Financial Officer of the Buyer required by Rules 13a-14 and 15d-14 of the Exchange Act or 18 U.S.C. §1350 (Section 906 of SOX) with respect to the Buyer SEC Reports, as applicable, were true and correct in this Agreement, the termall material respects as of their respective dates.
Appears in 2 contracts
Samples: Merger Agreement (Saucony Inc), Merger Agreement (Stride Rite Corp)
SEC Filings; Financial Statements; Information Provided. (a) All The Company has filed or furnished all registration statements, forms, reports and other documents required to be filed or furnished by the Company with the SEC since January October 1, 2001 2005. All such registration statements, forms, reports and other documents (including those that the Company may file after the date hereof until the Closing, and in each case including all exhibits, schedules and amendments thereto and documents incorporated by reference therein) are referred to herein as the “Company SEC Reports.” Except as set forth As of their respective effective dates (in Section 3.4 the case of Company SEC Reports that are registration statements filed pursuant to the requirements of the Securities Act) and as of their respective SEC filing dates (in the case of all other Company Disclosure ScheduleSEC Reports), the Company SEC Reports (i) were or will be filed on a timely basis and (ii) were or will be prepared in compliance complied in all material respects with the applicable requirements of the Securities Act, Act and the Exchange Act, as the case may be, and the rules and regulations of the SEC thereunder applicable to such Company SEC Reports. None , and none of the Company SEC Reports when filed, after giving effect to any amendments and supplements thereto filed prior to the date hereof, as of such respective dates 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. None No investigation by the SEC with respect to the Company or any of its Subsidiaries is pending or, to the Knowledge of the Company’s Subsidiaries , threatened. Except to the extent that information contained in any Company SEC Report filed and publicly available prior to the date of this Agreement (a “Filed Company SEC Report”) has filedbeen revised or superseded by a later Filed Company SEC Report, none of the Company SEC Reports contains any untrue statement of a material fact or omits 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 Subsidiary of the Company is obligated subject to file, any forms, reports, schedules, statements the reporting requirements of Section 13(a) or other documents with Section 15(d) of the SECExchange Act. As used in this Section 3.4(a)Agreement, “Knowledge” of any Person that is not an individual shall mean, with respect to any matter in question, the term “filed” shall be broadly construed to include any manner in which a document or information is furnished, supplied or otherwise made available to actual knowledge after due inquiry of the SECindividuals listed on Section 3.5(b) of the Company Disclosure Letter.
(b) Each of the consolidated financial statements (including, in each case, any related notes and schedules) contained or to be contained in the Company SEC Reports at the time filed (i) complied or will comply as to form in all material respects with applicable accounting requirements and the published rules and regulations of the SEC with respect thereto, (ii) were or will be prepared in accordance with United States generally accepted accounting principles (“GAAP”) applied on a consistent basis throughout the periods involved (except as may be indicated in the notes to such financial statements or, in the case of unaudited interim financial statements, as permitted by the SEC on Form 10-Q under the Exchange Act or for normal year-end adjustments) Act), and (iii) fairly presented or will fairly present the consolidated financial position of the Company and its Subsidiaries as of the dates thereof indicated and the consolidated results of its their operations and cash flows for the periods indicated, except that subject, in the case of unaudited interim financial statements were or are subject statements, to normal and recurring year-end adjustments that have not audit adjustments, none of which has been and are not expected to be or will be, individually or in the aggregate, material to the CompanyCompany and its Subsidiaries, taken as a whole). The unaudited consolidated, audited balance sheet of the Company as of June September 30, 2004 2007 included in the Company’s Annual Report on Form 10-K for the year ended as of such date (including the notes thereto) is referred to herein as the “Company Balance Sheet.”” Neither the Company nor any of its Subsidiaries has any liabilities or obligations of any nature (whether accrued, absolute, contingent or otherwise) whether or not required, if known, to be reflected or reserved against on a consolidated balance sheet of the Company prepared in accordance with GAAP or the notes thereto, except (i) liabilities as and to the extent set forth on the Company Balance Sheet or the notes thereto, (ii) liabilities incurred after the date of the Company Balance Sheet in the ordinary course of business consistent with past practice or in connection with the transactions contemplated by this Agreement, (iii) liabilities arising in the ordinary course of business pursuant to the terms of Company Contracts (other than relating to any breaches thereof by the Company or its Subsidiaries) disclosed in the Company Disclosure Letter or that are not required to be disclosed therein pursuant to the terms of this Agreement and (iv) liabilities that, individually or in the aggregate, have not had and would not reasonably be expected to have a Company Material Adverse Effect.
(c) The information to be supplied by or on behalf of the Company for inclusion in the registration proxy statement on Form S-4 pursuant to which be sent to the Company Series A Preferred Stock issued in the Merger and the Company Common Stock issuable upon conversion shareholders of the Company Series A Preferred Stock will be registered under the Securities Act (including any amendments as amended or supplementssupplemented from time to time, the “Registration Statement”), shall not at the time the Registration Statement is declared effective by the SEC contain any untrue statement of a material fact or omit to state any material fact required to be stated in the Registration Statement or necessary in order to make the statements in the Registration Statement not misleading. The information to be supplied by the Company for inclusion in the joint proxy statement/prospectus (the “Proxy Statement”) to be sent to the stockholders of the Company in connection with the meeting of the Company’s stockholders to consider the adoption of this Agreement and the Merger (the “Company Meeting”) and the Partners in connection with the Fund Consent Solicitation (as herein defined) Meeting shall not, on the date the Proxy Statement is first mailed to stockholders shareholders of the Company and the PartnersCompany, at the time of the Company Meeting and or at the Effective Time, contain any untrue statement which, at such time and in light of the circumstances under which it shall be made, is false or misleading with respect to any a material fact, or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading.
(d) The Company has established and maintains disclosure controls and procedures and internal control over financial reporting required by Rule 13a-15 or 15d-15 under the Exchange Act. Such disclosure controls and procedures are designed to ensure that all material information concerning the Company, including its consolidated Subsidiaries, is made in the Proxy Statement not false or misleading; or omit to state any material fact necessary to correct any statement in any earlier communication with respect to the solicitation of proxies for the Company Meeting or the solicitation of consents in connection with the Fund Consent Solicitation which has become false or misleading. If at any time prior to the Effective Time any event relating known to the Company’s principal executive officer and its principal financial officer by others within those entities, particularly during the periods in which the periodic reports required under the Exchange Act are being prepared; and such disclosure controls and procedures are designed to accumulate and communicate to the Company’s principal executive officer and its principal financial officer information required to be included in the Company’s periodic reports required under the Exchange Act as appropriate to allow timely decisions regarding required disclosure. The principal executive officer and the principal financial officer of the Company have timely made all certifications required by the Xxxxxxxx-Xxxxx Act of 2002 and any rules and regulations promulgated by the SEC thereunder (the “SOxA”). All of the statements contained in such certifications are complete and correct as of the dates thereof. The Company’s principal executive officer and its principal financial officer have disclosed, based on their most recent evaluation of internal control over financial reporting, to the Company’s auditors and the audit committee of the Board of Directors of the Company (x) all significant deficiencies and material weaknesses (as such terms are defined in PCAOB Auditing Standard No. 2) in the design or operation of internal control over financial reporting that are reasonably likely to adversely affect the Company’s ability to record, process, summarize and report financial data (each a “Financial Control Weakness”) and (y) any fraud, whether or not material, that involves management or other employees who have a significant role in the Company’s internal control over financial reporting. The Company is in compliance in all material respects with the applicable listing and other rules and regulations of The Nasdaq Stock Market.
(e) The Company’s system of internal control over financial reporting is designed to provide reasonable assurance (i) that transactions are recorded as necessary to permit preparation of financial statements in conformity with GAAP, (ii) that receipts and expenditures are executed only in accordance with the authorization of management and (iii) regarding prevention or timely detection of the unauthorized acquisition, use or disposition of the Company’s assets that would materially affect the Company’s financial statements. No Financial Control Weakness was identified in management’s assessment of its internal control over financial reporting as of September 30, 2007 (nor has any such Financial Control Weakness since been identified).
(f) The Company is in compliance in all material respects with the provisions of Section 13(b) of the Exchange Act. Neither the Company nor any of its Subsidiaries nor, to the Company’s Knowledge, any Affiliate director, officer, agent, employee or other Person acting on behalf of the Company or any of its Subsidiaries, has (i) used any corporate or other funds for unlawful contributions, payments, gifts or entertainment, or made any unlawful expenditures relating to political activity to government officials or others or established or maintained any unlawful or unrecorded funds or otherwise taken or permitted to be taken any action in violation of Section 30A of the Exchange Act or (ii) accepted or received any unlawful contributions, payments, gifts or expenditures. Except as set forth in Filed Company SEC Reports, since December 31, 2007, no event has occurred that would be required to be reported as a “Certain Relationship or Related Transaction” pursuant to Item 404(a) of Regulation S-K promulgated by the SEC.
(g) Since October 1, 2005, the Company has not obtained Knowledge of any material complaint, allegation, assertion or claim, whether written or oral, regarding the accounting or auditing practices, procedures, methodologies or methods of the Company or any of its Subsidiaries or their respective internal accounting controls, including any material complaint, allegation, assertion or claim that the Company or any of its Subsidiaries has engaged in questionable accounting or auditing practices. Since October 1, 2005, no attorney representing the Company or any of its Subsidiaries, whether or not employed by the Company or any of its Subsidiaries, has reported evidence of a material violation of securities Laws, breach of fiduciary duty or similar violation by the Company or any of its officers, directors, employees or agents to the Board of Directors of the Company or any committee thereof or to any director or officer of the Company.
(h) The Company has adopted a code of ethics, as defined belowby Item 406(b) of Regulation S-K, for senior financial officers, applicable to its principal financial officer, comptroller or principal accounting officer, or Persons performing similar functions. Prior to the date hereof, the Company has promptly disclosed, by filing a Form 8-K, any change in or waiver of the Company’s code of ethics, as required by Section 406(b) of SOxA. To the Knowledge of the Company, or any officers or directors as of any the date hereof, there have been no violations of them, should be discovered provisions of the Company’s code of ethics other than immaterial violations by the Company which should be set forth in an amendment to the Registration Statement or a supplement to the Proxy Statement, the Company shall promptly inform the Fund. As used in this Agreement, the termemployees who are not responsible for managing others.
Appears in 2 contracts
Samples: Merger Agreement (Vital Signs Inc), Merger Agreement (General Electric Co)
SEC Filings; Financial Statements; Information Provided. (a) All The Company has filed all registration statements, forms, reports and other documents required to be filed by the Company with the SEC Securities and Exchange Commission (the “SEC”) since January 1, 2001 2002. All such registration statements, forms, reports and other documents (including those that the Company may file after the date hereof until the Closing) are referred to herein as the “Company SEC Reports.” Except as set forth in Section 3.4 of the Company Disclosure Schedule, the The Company SEC Reports (i) were or will be filed on a timely basis and basis, (ii) were at the time filed, complied, or will be prepared in compliance comply when filed, as to form in all material respects with the applicable requirements of the Securities ActAct of 1933, as amended, and the Exchange Act, as the case may be, and the rules and regulations of the SEC thereunder applicable to such Company SEC Reports. None of , and (iii) did not or will not at the Company SEC Reports when filed, after giving effect to any amendments and supplements thereto time they were or are filed prior to the date hereof, contained contain any untrue statement of a material fact or omitted omit to state any a material fact required to be stated therein in such Company SEC Reports or necessary in order to make the statements thereinin such Company SEC Reports, in the light of the circumstances under which they were made, not misleading. None No Subsidiary of the Company’s Subsidiaries has filed, or Company is obligated to file, any forms, reports, schedules, statements or other documents with the SEC. As used in this Section 3.4(a), the term “filed” shall be broadly construed to include any manner in which a document or information is furnished, supplied or otherwise made available subject to the SECreporting requirements of Section 13(a) or Section 15(d) of the Exchange Act. There are no off-balance sheet structures or transactions with respect to the Company or any of its Subsidiaries that would be required to be reported or set forth in the Company SEC Reports.
(b) Each of the consolidated financial statements (including, in each case, any related notes and schedules) contained or to be contained in or incorporated by reference in the Company SEC Reports at the time filed (or to be filed) (i) complied (or will comply comply) as to form in all material respects with applicable accounting requirements and the published rules and regulations of the SEC with respect thereto, thereto and (ii) were (or will be be) prepared in accordance with United States generally accepted accounting principles (“GAAP”) applied on a consistent basis throughout the periods involved (except as may be indicated in the notes to such financial statements or, in the case of unaudited interim financial statements, as permitted by the SEC on with respect to Form 10-Q under the Exchange Act Act). Each of the consolidated balance sheets (including, in each case, any related notes and schedules) contained or for normal year-end adjustments) and (iii) to be contained or incorporated by reference in the Company SEC Reports at the time filed fairly presented (or will fairly present present) the consolidated financial position of the Company and its Subsidiaries as of the dates thereof indicated and each of the consolidated statements of income and of changes in financial position contained or to be contained or incorporated by reference in the Company SEC Reports (including, in each case, any related notes and schedules) fairly presented (or will fairly present) the consolidated results of operations, retained earnings and changes in financial position, as the case may be, of the Company and its operations and cash flows Subsidiaries for the periods indicatedset forth therein, except that the unaudited interim financial statements were or are subject to normal and recurring year-end adjustments that have not been and are not expected to be material to the Company. The unaudited balance sheet of the Company as of June 30, 2004 is referred to herein as the “Company Balance Sheetadjustments.”
(c) The information to be supplied by or on behalf of the Company for inclusion in the registration proxy statement on Form S-4 pursuant to which the Company Series A Preferred Stock issued in the Merger and the Company Common Stock issuable upon conversion of the Company Series A Preferred Stock will be registered under the Securities Act (including any amendments or supplements, the “Registration Statement”), shall not at the time the Registration Statement is declared effective by the SEC contain any untrue statement of a material fact or omit to state any material fact required to be stated in the Registration Statement or necessary in order to make the statements in the Registration Statement not misleading. The information to be supplied by the Company for inclusion in the joint proxy statement/prospectus (the “Proxy Statement”) to be sent to the stockholders of the Company (the “Proxy Statement”) in connection with the meeting of the Company’s stockholders to consider the adoption of this Agreement and the Merger (the “Company Meeting”) and the Partners in connection with the Fund Consent Solicitation (as herein defined) Meeting shall not, on the date the Proxy Statement is first mailed to stockholders of the Company and the Partners, or at the time of the Company Meeting and at the Effective TimeMeeting, contain any statement which, at such time and in light of the circumstances under which it shall be made, is false or misleading with respect to any material fact, or omit to state any material fact necessary in order to make the statements made in the Proxy Statement not false or misleadingmisleading in light of the circumstances under which they were or shall be made; or omit to state any material fact necessary to correct any statement in any earlier communication with respect to the solicitation of proxies for the Company Meeting or the solicitation of consents in connection with the Fund Consent Solicitation which has become false or misleading. If at any time prior to the Effective Time Company Meeting any fact or event relating to the Company, any Affiliate (as defined below) of the Company, Company or any officers or directors of any of them, its Affiliates which should be set forth in a supplement to the Proxy Statement should be discovered by the Company which or should be set forth in an amendment to the Registration Statement or a supplement to the Proxy Statementoccur, the Company shall shall, promptly after becoming aware thereof, inform the FundParent of such fact or event. As used in this AgreementAgreement with respect to any party, the termterm “Affiliate” means any Person who is an “affiliate” of that party within the meaning of Rule 405 promulgated under the Securities Act of 1933, as amended.
Appears in 2 contracts
Samples: Merger Agreement (Computer Associates International Inc), Merger Agreement (Concord Communications Inc)
SEC Filings; Financial Statements; Information Provided. (a) All The Company has filed all registration statements, forms, reports and other documents required to be filed by the Company with the SEC since January 1, 2001 2004 and has made available to the Parent copies of all registration statements, forms, reports and other documents filed by the Company with the SEC since such date, all of which are publicly available on the SEC’s XXXXX system. All such registration statements, forms, reports and other documents (including those that the Company may file after the date hereof until the Closing) are referred to herein as the “Company SEC Reports.” Except as set forth in Section 3.4 of the Company Disclosure Schedule, the The Company SEC Reports (i) were or will be filed on a timely basis and basis, (ii) at the time filed, were or will be prepared in compliance in all material respects with the applicable requirements of the Securities Act, Act and the Exchange Act, as the case may be, and the rules and regulations of the SEC thereunder applicable to such Company SEC Reports. None of , and (iii) did not or will not at the Company SEC Reports when filed, after giving effect to any amendments and supplements thereto time they were or are filed prior to the date hereof, contained contain any untrue statement of a material fact or omitted omit to state any a material fact required to be stated therein in such Company SEC Reports or necessary in order to make the statements thereinin such Company SEC Reports, in the light of the circumstances under which they were made, not misleading. None No Subsidiary of the Company’s Subsidiaries has filed, or Company is obligated to file, any forms, reports, schedules, statements or other documents with the SEC. As used in this Section 3.4(a), the term “filed” shall be broadly construed to include any manner in which a document or information is furnished, supplied or otherwise made available subject to the SECreporting requirements of Section 13(a) or Section 15(d) of the Exchange Act.
(b) Each of the consolidated financial statements (including, in each case, any related notes and schedules) contained or to be contained in the Company SEC Reports at the time filed (i) complied or will comply as to form in all material respects with applicable accounting requirements and the published rules and regulations of the SEC with respect thereto, (ii) were or will be prepared in accordance with United States generally accepted accounting principles (“GAAP”) applied on a consistent basis throughout the periods involved (except as may be indicated in the notes to such financial statements or, in the case of unaudited interim financial statements, as permitted by the SEC on Form 10-Q under the Exchange Act or for normal year-end adjustmentsAct) and (iii) fairly presented or will fairly present the consolidated financial position of the Company and its Subsidiaries as of the dates thereof indicated and the consolidated results of its operations and cash flows for the periods indicated, consistent with the books and records of the Company and its Subsidiaries, except that the unaudited interim financial statements do not contain footnotes and were or are subject to normal and recurring year-end adjustments that have not been and are not expected to be material to the Companyadjustments. The consolidated, unaudited balance sheet of the Company as of June 30March 31, 2004 2005 is referred to herein as the “Company Balance Sheet.”
(c) The information to be supplied by or on behalf of the Company for inclusion or incorporation by reference in the registration statement on Form S-4 to be filed by the Parent pursuant to which the Company Series A Preferred shares of Parent Common Stock issued in connection with the Merger and the Company Common Stock issuable upon conversion of the Company Series A Preferred Stock will shall be registered under the Securities Act (including any amendments or supplements, the “Registration Statement”), or to be included or supplied by or on behalf of the Company for inclusion in any filing pursuant to Rule 165 and Rule 425 under the Securities Act or Rule 14a-12 under the Exchange Act (each a “Regulation M-A Filing”), shall not at the time the Registration Statement or any Regulation M-A Filing is filed with the SEC, at any time the Registration Statement is amended or supplemented, or at the time the Registration Statement is declared effective by the SEC (as applicable), contain any untrue statement of a material fact or omit to state any material fact required to be stated in the Registration Statement therein or necessary in order to make the statements in the Registration Statement therein not misleading. The information to be supplied by or on behalf of the Company for inclusion in the joint proxy statement/prospectus (the “Proxy Statement”) to be sent to the stockholders of the Company and the Parent (the “Joint Proxy Statement/Prospectus”) in connection with (i) the meeting of the Company’s stockholders to consider the adoption Company Voting Proposal (the “Company Stockholders Meeting”), and (ii) the meeting of this Agreement and the Parent’s stockholders (the “Parent Stockholders Meeting”) to consider the issuance of shares of Parent Common Stock pursuant to the Merger (the “Company MeetingParent Voting Proposal”) and the Partners in connection with the Fund Consent Solicitation (as herein defined) shall not, on the date the Joint Proxy Statement Statement/Prospectus is first mailed to stockholders of the Company and or the PartnersParent, or at the time of the Company Stockholders Meeting and or the Parent Stockholders Meeting or at the Effective Time, contain any statement which, at such time and in light of the circumstances under which it shall be made, is false or misleading with respect to any material fact, or omit to state any material fact necessary in order to make the statements made in the Joint Proxy Statement Statement/Prospectus not false or misleading; or omit to state any material fact necessary to correct any statement in any earlier communication with respect to the solicitation of proxies for the Company Stockholders Meeting or the solicitation of consents in connection with the Fund Consent Solicitation Parent Stockholders Meeting which has become false or misleading. If at any time prior to the Effective Time any fact or event relating to the Company, any Affiliate (as defined below) of the Company, Company or any officers or directors of any of them, should be discovered by the Company its Affiliates which should be set forth in an amendment to the Registration Statement or a supplement to the Joint Proxy Statement/Prospectus should be discovered by the Company or should occur, the Company shall promptly inform the Fund. As used in this Agreement, the termParent of such fact or event.
Appears in 2 contracts
Samples: Merger Agreement (Genaissance Pharmaceuticals Inc), Merger Agreement (Genaissance Pharmaceuticals Inc)
SEC Filings; Financial Statements; Information Provided. (a) All The Company has filed all registration statements, forms, reports and other documents required to be filed by the Company with the SEC since January October 1, 2001 2003. All such registration statements, forms, reports and other documents (including those that the Company may file after the date hereof until the Closing) ), together with all certifications required pursuant to the Xxxxxxxx-Xxxxx Act of 2002 and the related rules and regulations promulgated under or pursuant to such act (the “Xxxxxxxx-Xxxxx Act”), are referred to herein as the “Company SEC Reports.” Except as set forth to the extent that information contained in Section 3.4 any Company SEC Report filed and publicly available prior to the date of this Agreement has been specifically revised or superseded by a later filed Company SEC report filed prior to the Company Disclosure Scheduledate of this Agreement, the Company SEC Reports (i) were or will be filed on a timely basis and (except for the Company’s Form 10-K for fiscal year 2004 filed on February 1, 2005), (ii) were at the time filed, complied, or will be prepared in compliance comply when filed, as to form in all material respects with the applicable requirements of the Securities Act, Act and the Exchange Act, as the case may be, the Xxxxxxxx-Xxxxx Act and the rules and regulations of the SEC thereunder applicable to such Company SEC Reports. None of , and (iii) did not or will not at the Company SEC Reports when filed, after giving effect to any amendments and supplements thereto time they were or are filed prior to the date hereof, contained contain any untrue statement of a material fact or omitted omit to state any a material fact required to be stated therein in such Company SEC Reports or necessary in order to make the statements thereinin such Company SEC Reports, in the light of the circumstances under which they were made, not misleading. None No Subsidiary of the Company is subject to the reporting requirements of Section 13(a) or Section 15(d) of the Exchange Act. The Company has made available to Parent true, correct and complete copies of all correspondence between the SEC, on the one hand, and the Company and any of its Subsidiaries, on the other, since October 1, 2003, including (i) all SEC comment letters and responses to such comment letters by or on behalf of the Company’s Subsidiaries has filed, or is obligated to fileand (ii) any letters, any formscomplaints, reports, schedules, statements or other documents from the SEC or any staff or office of the SEC informing the Company of any inquiry, claim or proceeding (formal, informal or otherwise) or request for documents or information, and all written responses thereto by or on behalf of the Company. To the knowledge of the Company, none of the Company SEC Reports is the subject of ongoing SEC review or outstanding SEC comment. Except as set forth in Section 5.6(a) of the Company Disclosure Schedule, there are no off-balance sheet arrangements as defined in Item 2.03(d) of SEC Form 8-K with the SEC. As used in this Section 3.4(a), the term “filed” shall be broadly construed to include any manner in which a document or information is furnished, supplied or otherwise made available respect to the SECCompany or any of its Subsidiaries that would be required to be reported or set forth in the Company SEC Reports or any such reports required to be filed in the future.
(b) Each Except to the extent that information contained in any Company SEC Report filed and publicly available prior to the date of this Agreement has been specifically revised or superseded by a later filed Company SEC report filed prior to the date of this Agreement, each of the consolidated financial statements (including, in each case, any related notes and schedules) contained or to be contained in or incorporated by reference in the Company SEC Reports at the time filed (or to be filed) (i) complied (or will comply comply) as to form in all material respects with applicable accounting requirements and the published rules and regulations of the SEC with respect thereto, thereto and (ii) were (or will be be) prepared in accordance with United States generally accepted accounting principles (“GAAP”) applied on a consistent basis throughout the periods involved (except as may be indicated in the notes to such financial statements or, in the case of unaudited interim financial statements, as permitted by the SEC on with respect to Form 10-Q under the Exchange Act Act). Except to the extent that information contained in any Company SEC Report filed and publicly available prior to the date of this Agreement has been specifically revised or for normal year-end adjustmentssuperseded by a later filed Company SEC report filed prior to the date of this Agreement, each of the consolidated balance sheets (including, in each case, any related notes and schedules) and (iii) contained or incorporated by reference in the Company SEC Reports at the time filed fairly presented or will fairly present in all material respects the consolidated financial position of the Company and its Subsidiaries as of the dates thereof indicated and each of the consolidated statements of income and of changes in financial position contained or to be contained or incorporated by reference in the Company SEC Reports (including, in each case, any related notes and schedules) fairly presented in all material respects the consolidated results of operations, retained earnings and changes in financial position, as the case may be, of the Company and its operations and cash flows Subsidiaries for the periods indicatedset forth therein, except that the unaudited interim financial statements were or are subject to normal and recurring year-end adjustments that have not been adjustments.
(c) Except as and are not expected to be material to the Company. The unaudited extent set forth on the consolidated balance sheet of the Company and the consolidated Subsidiaries as of June at September 30, 2004 is referred 2005 (including the notes thereto and related management discussion and analysis) included in the Company’s Annual Report on Form 10-K for the fiscal year ended September 30, 2005, neither the Company nor any Subsidiary has any liability or obligation of any nature (whether accrued, absolute, contingent or otherwise, and whether or not required to herein as be disclosed), except for liabilities and obligations (i) incurred in connection with the “transactions contemplated hereby, (ii) incurred in the ordinary course of business and in a manner consistent with past practice since September 30, 2005, or (iii) that have not had and would not reasonably be expected to have a Company Balance SheetMaterial Adverse Effect.”
(cd) The information to be supplied by or on behalf of the Company for inclusion in the registration proxy statement on Form S-4 pursuant to which be sent to the Company Series A Preferred Stock issued in the Merger and the Company Common Stock issuable upon conversion stockholders of the Company Series A Preferred Stock will be registered under the Securities Act (including any amendments or supplements, the “Registration Proxy Statement”)) in connection with the Company Meeting will not, shall not on the date it is first mailed to the stockholders of the Company or at the time of the Registration Statement is declared effective by the SEC Company Meeting, contain any untrue statement of a material fact or omit to state any material fact required to be stated in the Registration Statement therein or necessary in order to make the statements in the Registration Statement not misleading. The information to be supplied by the Company for inclusion in the joint proxy statement/prospectus (the “Proxy Statement”) to be sent to the stockholders of the Company in connection with the meeting of the Company’s stockholders to consider the adoption of this Agreement and the Merger (the “Company Meeting”) and the Partners in connection with the Fund Consent Solicitation (as herein defined) shall nottherein, on the date the Proxy Statement is first mailed to stockholders of the Company and the Partners, at the time of the Company Meeting and at the Effective Time, contain any statement which, at such time and in light of the circumstances under which it shall be they are made, is false not misleading. The Proxy Statement will comply as to form in all material respects with the provisions of the Exchange Act and the rules and regulations promulgated by the SEC thereunder. The representations and warranties contained in this Section 5.6(d) will not apply to statements or misleading with respect to any material fact, or omit to state any material fact necessary in order to make the statements made omissions included in the Proxy Statement not false or misleading; or omit to state any material fact necessary to correct any statement other filings made with the SEC based upon information furnished in any earlier communication with respect writing to the solicitation Company by Parent or Merger Sub specifically for use therein.
(e) The Company maintains disclosure controls and procedures and internal control over financial reporting as required under Rule 13a-15(a) promulgated under the Exchange Act. Such disclosure controls and procedures were effective as of proxies for September 30, 2006, such internal control over financial reporting was effective as of September 30, 2005, and the Company Meeting or the solicitation of consents in connection same are otherwise reasonably designed to comply with the Fund Consent Solicitation which respective definitions of such controls in Rule 13a-15 (e) and (f). The Company has become false or misleading. If at any time disclosed, based on its most recent evaluation prior to the Effective Time any event relating date hereof, to the Company’s auditors and the audit committee of the Company Board (A) any significant deficiencies and material weaknesses in the design or operation of internal controls over financial reporting which are reasonably likely to adversely affect in any material respect the Company’s ability to record, process, summarize and report financial information, and (B) any Affiliate fraud, whether or not material, that involves management or other employees who have a significant role in the Company’s internal control over financial reporting. The Company has made available to Parent a summary of any such disclosure made by management to the Company’s auditors and audit committee since October 1, 2003, and Section 5.6(e) of the Company Disclosure Schedule sets forth a summary of all current significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting. Except as set forth in Section 5.6(e) of the Company Disclosure Schedule, since October 1, 2003, no current or former employee of the Company or any of its Subsidiaries has alleged to any of the senior officers of the Company or such Subsidiaries that the Company or any such Subsidiaries has engaged in questionable or fraudulent accounting or auditing practices. Except as set forth in Section 5.6(e) of the Company Disclosure Schedule, since October 1, 2003, no attorney representing the Company or any of its Subsidiaries, whether or not employed by the Company or any of its Subsidiaries, has reported evidence of a violation of securities Laws, breach of fiduciary duty or similar violation by the Company or any of its officers, directors, employees or agents to the Company Board or any committee thereof or to any director, in his or her capacity as a director, or officer, in his or her capacity as an officer, of the Company or any of its Subsidiaries.
(as defined belowf) The Company and, to the knowledge of the Company, each of its officers and directors (in their capacities as such) are in compliance with, and have complied, in each case in all material respects, with (i) since the enactment of the Xxxxxxxx-Xxxxx Act, the applicable provisions of the Xxxxxxxx-Xxxxx Act at the time that such provisions became effective, and (ii) since the date that the Company Common Stock has been listed on the NASDAQ Capital Market, the applicable Marketplace Rules of the NASDAQ Capital Market (and since any such listing date, the Company has not given or any officers been required to give notice to the NASDAQ Capital Market, and has not received notice from the NASDAQ Capital Market, to the effect that the Company is or directors may be in violation of any of them, should be discovered the applicable NASDAQ Marketplace Rules). There are no outstanding loans made by the Company which should be set forth or any of its Affiliates to any executive officer (as defined in an amendment to Rule 3b-7 under the Registration Statement Exchange Act) or a supplement to the Proxy Statement, director of the Company shall promptly inform or any Subsidiary of the FundCompany. As used Except as permitted by the Exchange Act, including Sections 13(k)(2) and (3), since the enactment of the Xxxxxxxx-Xxxxx Act, neither the Company nor any of its Affiliates has made, arranged or modified (in this Agreement, any material way) personal loans or “extension of credit” to any executive officer (as defined in Rule 3b-7 under the termExchange Act) or director of the Company or any Subsidiary of the Company.
Appears in 2 contracts
Samples: Merger Agreement (Netopia Inc), Merger Agreement (Netopia Inc)
SEC Filings; Financial Statements; Information Provided. (a) All The Parent has filed all registration statements, forms, reports and other documents required to be filed by the Company Parent with the SEC since January 1, 2001 2004 and has made available to the Company copies of all registration statements, forms, reports and other documents filed by the Parent with the SEC since such date, all of which are publicly available on the SEC’s XXXXX system. All such registration statements, forms, reports and other documents (including those that the Company Parent may file after the date hereof until the Closing) are referred to herein as the “Company Parent SEC Reports.” Except as set forth in Section 3.4 of the Company Disclosure Schedule, the Company The Parent SEC Reports (i) were or will be filed on a timely basis and basis, (ii) at the time filed, were or will be prepared in compliance in all material respects with the applicable requirements of the Securities Act, Act and the Exchange Act, as the case may be, and the rules and regulations of the SEC thereunder applicable to such Company Parent SEC Reports. None of , and (iii) did not or will not at the Company SEC Reports when filed, after giving effect to any amendments and supplements thereto time they were or are filed prior to the date hereof, contained contain any untrue statement of a material fact or omitted omit to state any a material fact required to be stated therein in such Parent SEC Reports or necessary in order to make the statements thereinin such Parent SEC Reports, in the light of the circumstances under which they were made, not misleading. None No Subsidiary of the Company’s Subsidiaries has filed, or Parent is obligated to file, any forms, reports, schedules, statements or other documents with the SEC. As used in this Section 3.4(a), the term “filed” shall be broadly construed to include any manner in which a document or information is furnished, supplied or otherwise made available subject to the SECreporting requirements of Section 13(a) or Section 15(d) of the Exchange Act.
(b) Each of the consolidated financial statements (including, in each case, any related notes and schedules) contained or to be contained in the Company Parent SEC Reports at the time filed (i) complied or will comply as to form in all material respects with applicable accounting requirements and the published rules and regulations of the SEC with respect thereto, (ii) were or will be prepared in accordance with generally accepted accounting principles (“GAAP”) GAAP applied on a consistent basis throughout the periods involved (except as may be indicated in the notes to such financial statements or, in the case of unaudited statements, as permitted by the SEC on Form 10-Q under the Exchange Act or for normal year-end adjustmentsAct) and (iii) fairly presented or will fairly present the consolidated financial position of the Company Parent and its Subsidiaries as of the dates thereof and the consolidated results of its operations and cash flows for the periods indicated, consistent with the books and records of the Parent and its Subsidiaries, except that the unaudited interim financial statements were or are subject to normal and recurring year-end adjustments that have which were not been and or are not expected to be material to the Companyin amount. The consolidated, unaudited balance sheet of the Company Parent as of June 30March 31, 2004 2005 is referred to herein as the “Company Parent Balance Sheet.”
(c) The information to be in the Registration Statement or in any Regulation M-A Filing (except, in each case, for information supplied by or on behalf of the Company for inclusion or incorporation by reference in the registration statement on Form S-4 pursuant Registration Statement or Regulation M-A Filing, as to which the Company Series A Preferred Stock issued in the Merger Parent makes no representation and the Company Common Stock issuable upon conversion which shall not constitute part of the Company Series A Preferred Stock will be registered under the Securities Act (including any amendments or supplements, the “Registration Statement”), Parent SEC Reports for purposes of this Agreement) shall not at the time the Registration Statement or any Regulation M-A Filing is filed with the SEC, at any time the Registration Statement is amended or supplemented, or at the time the Registration Statement is declared effective by the SEC (as applicable), contain any untrue statement of a material fact or omit to state any material fact required to be stated in the Registration Statement therein or necessary in order to make the statements in the Registration Statement therein not misleading. The information to be supplied by or on behalf of the Company Parent for inclusion in the joint proxy statement/prospectus (the “Joint Proxy Statement”) /Prospectus (which shall be deemed to be sent include all information about or relating to the stockholders of Parent, the Company in connection with the meeting of the Company’s stockholders to consider the adoption of this Agreement Parent Voting Proposal and the Merger (the “Company Parent Stockholders Meeting”) and the Partners in connection with the Fund Consent Solicitation (as herein defined) shall not, on the date the Joint Proxy Statement Statement/Prospectus is first mailed to stockholders of the Company and or the PartnersParent, or at the time of the Company Stockholders Meeting and or the Parent Stockholders Meeting or at the Effective Time, contain any statement which, at such time and in light of the circumstances under which it shall be made, is false or misleading with respect to any material fact, or omit to state any material fact necessary in order to make the statements made in the Joint Proxy Statement Statement/Prospectus not false or misleading; or omit to state any material fact necessary to correct any statement in any earlier communication with respect to the solicitation of proxies for the Company Stockholders Meeting or the solicitation of consents in connection with the Fund Consent Solicitation Parent Stockholders Meeting which has become false or misleading. If at any time prior to the Effective Time any fact or event relating to the Company, any Affiliate (as defined below) of the Company, Parent or any officers or directors of any of them, should be discovered by the Company its Affiliates which should be set forth in an amendment to the Registration Statement or a supplement to the Joint Proxy Statement/Prospectus should be discovered by the Parent or should occur, the Company Parent shall promptly inform the Fund. As used in this Agreement, the termCompany of such fact or event.
Appears in 2 contracts
Samples: Merger Agreement (Genaissance Pharmaceuticals Inc), Merger Agreement (Genaissance Pharmaceuticals Inc)
SEC Filings; Financial Statements; Information Provided. (a) All The Company has filed or furnished all forms, reports and other documents required to be filed or furnished by the Company with the SEC and state securities regulators, including all prospectuses and other materials used by it or on its behalf in connection with the offer and sale of securities issued by the Company since January 1, 2001 2003. Such forms, reports and other documents (including those forms, reports and other documents that the Company may file with or furnish to the SEC after the date hereof until the Closing, including the Proxy Statement) are referred to herein as the “Company SEC Reports.” Except as set forth in Section 3.4 of the Company Disclosure Schedule, the ”. The Company SEC Reports (i) were or will be filed or furnished on a timely basis and (ii) were or will be prepared in compliance in all material respects with the applicable requirements of the Securities Act, and the Exchange ActAct and applicable state securities laws, as the case may be, and the rules and regulations promulgated thereunder applicable to such Company SEC Reports. None of the Company SEC Reports when filedfiled or furnished, after giving effect to any amendments and supplements thereto filed prior to or, if amended, as of the date hereofof such amendment, 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. None No investigation by the SEC with respect to the Company or any its Subsidiaries is pending or, to the Knowledge of the Company’s Subsidiaries has filed, threatened. No Subsidiary of the Company is required, or is obligated has been required since January 1, 2003, to file, file or furnish any forms, reports, schedules, statements reports or other documents with the SEC. As used in this Section 3.4(a), the term “filed” shall be broadly construed to include any manner in which a document or information is furnished, supplied or otherwise made available to the SEC.
(b) Each of the consolidated financial statements (including, in each case, any related notes and schedules) contained or to be contained in or incorporated by reference into the Company SEC Reports (i) complied or will comply as to form in all material respects with applicable accounting requirements and the published rules and regulations of the SEC with respect thereto, (ii) were or will be prepared in accordance with generally accepted accounting principles (“GAAP”) applied on a consistent basis throughout the periods involved (except as may be indicated in the notes to such financial statements or, in the case of unaudited statements, as permitted by the SEC on Form 10-Q under the Exchange Act or for normal year-end adjustments) and (iii) fairly presented or will fairly present the consolidated financial position position, result of operations and cash flows of the Company as of the dates thereof and the results of its operations and cash flows of the Company and its consolidated Subsidiaries for the periods indicated, except that the unaudited interim financial statements were or are subject to normal and recurring year-end adjustments that have not been and are not expected to be material to the Company. The unaudited balance sheet of the Company as of June 30, 2004 is referred to herein as the “Company Balance Sheetadjustments.”
(c) The information Company has made available to be supplied Parent copies of all correspondence received by the Company for inclusion in the registration statement on Form S-4 pursuant to which from, or sent by the Company Series A Preferred Stock issued in to, the Merger and SEC since January 1, 2003. There are no outstanding or unresolved comments from the Company Common Stock issuable upon conversion SEC with respect to any of the Company Series A Preferred Stock will be registered SEC Reports.
(d) The Company maintains disclosure controls and procedures required by Rule 13a-15 or Rule 15d-15 under the Securities Act (including any amendments or supplements, the “Registration Statement”), shall not at the time the Registration Statement is declared effective by the SEC contain any untrue statement of a Exchange Act; such controls and procedures are designed to ensure that all material fact or omit to state any material fact required to be stated in the Registration Statement or necessary in order to make the statements in the Registration Statement not misleading. The information to be supplied by concerning the Company for inclusion in and the joint proxy statement/prospectus (the “Proxy Statement”) to be sent Subsidiaries is made known on a timely basis to the stockholders of individuals responsible for the Company in connection with the meeting preparation of the Company’s stockholders SEC filings and other public disclosure documents.
(e) The Company and each of its Subsidiaries maintain accurate books and records reflecting its assets and liabilities and maintain a system of internal accounting controls that are designed to consider ensure that (i) transactions are executed in accordance with management’s authorizations, (ii) transactions are recorded as necessary to permit preparation of financial statements in conformity with GAAP and to maintain asset accountability, (iii) access to assets is permitted only in accordance with management’s authorization, (iv) the adoption of this Agreement and the Merger (the “Company Meeting”) and the Partners in connection recorded accountability for assets is compared with the Fund Consent Solicitation (as herein defined) shall not, on the date the Proxy Statement existing assets at regular intervals and appropriate action is first mailed to stockholders of the Company and the Partners, at the time of the Company Meeting and at the Effective Time, contain any statement which, at such time and in light of the circumstances under which it shall be made, is false or misleading taken with respect to any material factdifferences, and (v) accounts, notes and other receivables and inventory are recorded accurately, and proper and adequate procedures are implemented to effect the collection thereof on a current and timely basis. The Company has previously made available to Parent complete and correct copies of all written descriptions of, and all policies, manuals and other documents promulgating, such internal accounting controls.
(f) Neither the Company nor any of its Subsidiaries nor any of their respective trustees, directors, officers, employees, auditors or omit to state accountants has received or otherwise had or obtained knowledge of any material fact necessary in order to make complaint, allegation, assertion or claim, whether written or oral, regarding the statements made in accounting or auditing practices, procedures, methodologies or methods of the Proxy Statement not false Company or misleading; any of its Subsidiaries or omit to state their respective internal accounting controls, including any material fact necessary to correct complaint, allegation, assertion or claim that the Company or any statement of its Subsidiaries has engaged in questionable accounting or auditing practices. No attorney representing the Company or any earlier communication with respect of its Subsidiaries, whether or not employed by the Company or any of its Subsidiaries, has reported evidence of a material violation of securities laws, breach of fiduciary duty or similar violation by the Company or any of its officers, directors, trustees, employees or agents to the solicitation of proxies for the Company Meeting Board or the solicitation of consents in connection with the Fund Consent Solicitation which has become false any committee thereof or misleading. If at to any time prior to the Effective Time any event relating to the Company, any Affiliate (as defined below) trustee or officer of the Company, or any officers or directors of any of them, should be discovered by the Company which should be set forth in an amendment to the Registration Statement or a supplement to the Proxy Statement, the Company shall promptly inform the Fund. As used in this Agreement, the term.
Appears in 2 contracts
Samples: Merger Agreement (Trustreet Properties Inc), Merger Agreement (Trustreet Properties Inc)
SEC Filings; Financial Statements; Information Provided. (a) All Public Company has filed all registration statements, forms, reports reports, certifications and other documents required to be filed by the Public Company with the SEC since January 1September 18, 2001 2014. All such registration statements, forms, reports and other documents (including those that the Public Company may file after the date hereof until the Closing) are referred to herein as the “Public Company SEC Reports.” Except as set forth in Section 3.4 All of the Company Disclosure Schedule, the Public Company SEC Reports (iA) were or will be filed on a timely basis and basis, (iiB) were at the time filed, complied, or will be prepared in compliance comply when filed, as to form in all material respects with the applicable requirements of the Securities Act, Act and the Exchange Act, as the case may be, Act applicable to such Company SEC Reports. None of the Public Company SEC Reports when filed, after giving effect to any amendments and supplements thereto (C) did not or will not at the time they were or are filed prior to the date hereof, contained contain any untrue statement of a material fact or omitted omit to state any a material fact required to be stated therein in such Public Company SEC Reports or necessary in order to make the statements thereinin such Public Company SEC Reports, in the light of the circumstances under which they were made, not misleading. None of the Company’s Subsidiaries has filed, or is obligated to file, in any forms, reports, schedules, statements or other documents with the SEC. As used in this Section 3.4(a), the term “filed” shall be broadly construed to include any manner in which a document or information is furnished, supplied or otherwise made available to the SECmaterial respect.
(b) Each of the consolidated financial statements (including, in each case, any related notes and schedules) contained or to be contained in the Public Company SEC Reports at the time filed (i) complied or will comply as to form in all material respects with applicable accounting requirements and the published rules and regulations of the SEC with respect thereto, (ii) were or will be prepared in accordance with generally accepted accounting principles (“GAAP”) GAAP applied on a consistent basis throughout the periods involved and at the dates involved (except as may be indicated in the notes to such financial statements or, in the case of unaudited interim financial statements, as permitted by the SEC on Form 10-Q under the Exchange Act or for normal year-end adjustmentsAct) and (iii) fairly presented or will fairly present in all material respects the consolidated financial position of the Public Company and its Subsidiaries as of the dates thereof indicated and the consolidated results of its operations and cash flows for the periods indicated, except that the unaudited interim financial statements were or are subject to normal and recurring year-end adjustments that have not been and are not expected to be material to the Companyadjustments. The unaudited consolidated balance sheet of the Public Company as of June September 30, 2004 2016 is referred to herein as the “Public Company Balance Sheet.”
(c) PricewaterhouseCoopers LLP, Public Company’s current auditors, is and has been at all times since its engagement by Public Company (i) “independent” with respect to Public Company within the meaning of Regulation S-X and (ii) in compliance with subsections (g) through (l) of Section 10A of the Exchange Act (to the extent applicable) and the related rules of the SEC and the Public Company Accounting Oversight Board.
(d) The information to be supplied by the or on behalf of Public Company for inclusion inclusion, or filed by the Public Company and incorporated by reference, in the registration statement on Form S-4 pursuant to which the Company Series A Preferred Stock issued in the Merger and the Company Common Stock issuable upon conversion of the Company Series A Preferred Stock will be registered under the Securities Act (including any amendments or supplements, the “Registration Statement”), shall not at the time the Registration Proxy Statement is declared effective by the SEC contain any untrue statement of a material fact or omit to state any material fact required to be stated in the Registration Statement or necessary in order to make the statements in the Registration Statement not misleading. The information to be supplied by the Company for inclusion in the joint proxy statement/prospectus (the “Proxy Statement”) to be sent to the stockholders of the Public Company in connection with the meeting of the Company’s stockholders to consider the adoption of this Agreement and the Merger (the “Public Company Meeting”) and , which information shall be deemed to include all information about or relating to Public Company, the Partners in connection with Public Company Voting Proposal or the Fund Consent Solicitation (as herein defined) Public Company Meeting, shall not, on the date the Proxy Statement is first mailed to stockholders of the Company and the PartnersPublic Company, or at the time of the Public Company Meeting and at the Effective TimeMeeting, contain any statement whichthat, at such time and in light of the circumstances under which it shall be made, is false or misleading with respect to any material fact, or omit to state any material fact necessary in order to make the statements made in the Proxy Statement not false or misleading; or omit to state any material fact necessary to correct any statement in any earlier communication with respect to the solicitation of proxies for the Public Company Meeting or the solicitation of consents in connection with the Fund Consent Solicitation which that has become false or misleading. If at .
(e) Public Company does not have and never has had any time prior to sales in or revenues from the Effective Time any event relating to the Company, any Affiliate (as defined below) State of the Company, or any officers or directors of any of them, should be discovered by the Company which should be set forth in an amendment to the Registration Statement or a supplement to the Proxy Statement, the Company shall promptly inform the Fund. As used in this Agreement, the termIsrael.
Appears in 2 contracts
Samples: Share Purchase Agreement (Tokai Pharmaceuticals Inc), Share Purchase Agreement (Tokai Pharmaceuticals Inc)
SEC Filings; Financial Statements; Information Provided. (a) All SkillSoft has filed all registration statements, forms, reports and other documents required to be filed by the Company SkillSoft with the SEC since January 131, 2001 2000 and has made available to SmartForce copies of all registration statements, forms, reports and other documents filed by SkillSoft with the SEC since such date, all of which are available on the SEC's XXXXX system. All such required registration statements, forms, reports and other documents (including those that the Company SkillSoft may file after the date hereof until the Closing) are referred to herein as the “Company "SkillSoft SEC Reports.” Except as set forth in Section 3.4 of the Company Disclosure Schedule, the Company " The SkillSoft SEC Reports (i) were or will be filed on a timely basis and basis, (ii) at the time filed, were or will be prepared in compliance in all material respects with the applicable requirements of the Securities Act, Act and the Exchange Act, as the case may be, and the rules and regulations of the SEC thereunder applicable to such Company SkillSoft SEC Reports. None of , and (iii) did not or will not at the Company SEC Reports when filed, after giving effect to any amendments and supplements thereto time they were or are filed prior to the date hereof, contained contain any untrue statement of a material fact or omitted omit to state any a material fact required to be stated therein in such SkillSoft SEC Reports or necessary in order to make the statements thereinin such SkillSoft SEC Reports, in the light of the circumstances under which they were made, not misleading. None No Subsidiary of SkillSoft is subject to the reporting requirements of Sections 13(a) or 15(d) of the Company’s Subsidiaries has filed, or is obligated to file, any forms, reports, schedules, statements or other documents with the SEC. As used in this Section 3.4(a), the term “filed” shall be broadly construed to include any manner in which a document or information is furnished, supplied or otherwise made available to the SECExchange Act.
(b) Each of the consolidated financial statements (including, in each case, any related notes and schedules) contained or to be contained in the Company SkillSoft SEC Reports at the time filed (i) complied or will comply as to form in all material respects with applicable accounting requirements and the published rules and regulations of the SEC with respect thereto, (ii) were or will be prepared in accordance with United States generally accepted accounting principles (“"GAAP”") applied on a consistent basis throughout the periods involved (except as may be indicated in the notes to such financial statements or, in the case of unaudited interim financial statements, as permitted by the SEC on Form 10-Q under the Exchange Act or for normal year-end adjustmentsAct) and (iii) fairly presented or will fairly present in all material respects the consolidated financial position of the Company SkillSoft and its Subsidiaries as of the dates thereof indicated and the consolidated results of SkillSoft and its Subsidiaries' operations and cash flows for the periods indicated, consistent with the books and records of SkillSoft and its Subsidiaries, except that the unaudited interim financial statements were or are subject to normal and recurring year-end adjustments that have which were not been and or are not expected to be material to the Companyin amount. The consolidated, unaudited balance sheet of the Company SkillSoft as of June April 30, 2004 2002 is referred to herein as the “Company "SkillSoft Balance Sheet.”"
(c) SkillSoft has previously furnished to SmartForce a complete and correct copy of any amendments or modifications, which have not yet been filed with the SEC but which are required to be filed, to agreements, documents or other instruments which previously had been filed by SkillSoft with the SEC pursuant to the Securities Act or the Exchange Act.
(d) The information to be supplied by the Company or on behalf of SkillSoft for inclusion or incorporation by reference in the registration statement on Form S-4 to be filed by SmartForce pursuant to which SmartForce Ordinary Shares underlying the Company Series A Preferred Stock issued SmartForce ADSs issuable in connection with the Merger and the Company Common Stock issuable upon conversion of the Company Series A Preferred Stock will shall be registered under the Securities Act (including any amendments or supplements, the “"Registration Statement”"), or to be supplied by or on behalf of SkillSoft for inclusion in any filing pursuant to Rule 165 and Rule 425 under the Securities Act or Rule 14a-12 under the Exchange Act (each a "Regulation M-A Filing"), shall not at the time the Registration Statement or such Regulation M-A Filing is filed with the SEC, at any time it is amended or supplemented, or at the time the Registration Statement is declared effective by the SEC contain any untrue statement of a material fact or omit to state any material fact required to be stated in the Registration Statement therein or necessary in order to make the statements in the Registration Statement therein not misleading. The information to be supplied by the Company or on behalf of SkillSoft for inclusion in the joint proxy statement/prospectus (the “"Joint Proxy Statement”/Prospectus") to be sent to the stockholders of the Company SkillSoft in connection with the meeting of SkillSoft Meeting, which shall be deemed to include all information about or relating to SkillSoft, the Company’s stockholders to consider SkillSoft Voting Proposal or the adoption of this Agreement and the Merger (the “Company SkillSoft Meeting”) and the Partners in connection with the Fund Consent Solicitation (as herein defined) , shall not, on the date the Joint Proxy Statement Statement/Prospectus is first mailed to stockholders of the Company and the PartnersSkillSoft, or at the time of the Company SkillSoft Meeting and or at the Effective Time, contain any statement which, at such time and in light of the circumstances under which it shall be made, is false or misleading with respect to any material fact, or omit to state any material fact necessary in order to make the statements made in the Joint Proxy Statement Statement/Prospectus not false or misleading; or omit to state any material fact necessary to correct any statement in any earlier communication with respect to the solicitation of proxies for the Company SkillSoft Meeting or the solicitation of consents in connection with the Fund Consent Solicitation which has become false or misleading. If at any time prior to the Effective Time any fact or event relating to the Company, any Affiliate (as defined below) of the Company, SkillSoft or any officers or directors of any of them, should be its Affiliates is discovered by the Company SkillSoft or occurs which should be set forth in an amendment to the Registration Statement or a supplement to the Joint Proxy Statement/Prospectus, the Company SkillSoft shall promptly inform the Fund. As used in this Agreement, the termSmartForce of such fact or event.
Appears in 2 contracts
Samples: Merger Agreement (Smartforce Public LTD Co), Merger Agreement (Skillsoft Corp)
SEC Filings; Financial Statements; Information Provided. (a) All The Company has filed all registration statements, forms, reports and other documents required to be filed by the Company with the SEC since January 1, 2001 2013. All such registration statements, forms, reports and other documents (including those that the Company may file after the date hereof until the Closing) are referred to herein as the “Company SEC Reports.” Except As of their respective dates or, if amended prior to the date hereof, as set forth in Section 3.4 of the Company Disclosure Scheduledate of the last such amendment, the Company SEC Reports (i) were or will be filed on a timely basis and basis, (ii) were at the time filed, complied, or will be prepared in compliance comply when filed, as to form in all material respects with the applicable requirements of the Securities Act, Act and the Exchange Act, as the case may be, Act applicable to such Company SEC Reports. None of Reports and (iii) did not or will not at the Company SEC Reports when filed, after giving effect to any amendments and supplements thereto time they were or are filed prior to the date hereof, contained contain any untrue statement of a material fact or omitted omit to state any a material fact required to be stated therein in such Company SEC Reports or necessary in order to make the statements thereinin such Company SEC Reports, in the light of the circumstances under which they were made, not misleadingmisleading in any material respect. Neither the Company nor any Subsidiary has received from the SEC or any other Governmental Entity any written comments or questions with respect to any of the Company SEC Reports (including the financial statements included therein) or any registration statement filed by any of them with the SEC that are not resolved, or has received any written notice from the SEC or other Governmental Entity that such Company SEC Reports (including the financial statements included therein) or registration statements are being reviewed or investigated, and, to the Company’s Knowledge, there is not, as of the date of this Agreement, any investigation or review being conducted by the SEC or any other Governmental Entity of any Company SEC Reports (including the financial statements included therein). None of the Company’s Subsidiaries has filed, or is obligated required to file, file any forms, reports, schedules, statements reports or other documents with the SEC. As used in this Section 3.4(a), the term “filed” shall be broadly construed to include any manner in which a document or information is furnished, supplied or otherwise made available to the SEC.
(b) Each of the consolidated financial statements (including, in each case, any related notes and schedules) contained or to be contained in the Company SEC Reports at the time filed (i) complied or will comply as to form in all material respects with applicable accounting requirements and the published rules and regulations of the SEC with respect thereto, (ii) were or will be prepared in accordance with generally accepted accounting principles (“GAAP”) GAAP applied on a consistent basis throughout the periods involved (except as may be indicated in the notes to such financial statements or, in the case of unaudited interim financial statements, as permitted by the SEC on Form 10-Q under the Exchange Act or for normal year-end adjustments) Act), and (iii) fairly presented or will fairly present in all material respects the consolidated financial position of the Company and its Subsidiaries as of the dates thereof indicated and the consolidated results of its operations and operations, cash flows and changes in stockholders’ equity for the periods indicated, except that the unaudited interim financial statements were or are subject to normal and recurring year-end adjustments that have not been and are not expected to be material to the Company. The unaudited balance sheet of the Company as of June 30, 2004 is referred to herein as the “Company Balance Sheetadjustments.”
(c) The information to be supplied by or on behalf of the Company for inclusion in the registration statement Schedule TO or the Offer Documents, on Form S-4 pursuant the date the Schedule TO is filed with the SEC and on the date the Offer Documents are first published, sent or given to which the Company Series A Preferred Stock issued in the Merger and the holders of shares of Company Common Stock issuable upon conversion of the Company Series A Preferred Stock will be registered under the Securities Act (including any amendments or supplements, the “Registration Statement”)Stock, shall not at the time the Registration Statement is declared effective by the SEC contain any untrue statement of a material fact or omit to state any material fact required to be stated in the Registration Statement therein or necessary in order to make the statements therein, in light of the Registration Statement circumstances in which they shall be made, not misleadingmisleading in any material respect.
(d) The Company is in compliance in all material respects with the applicable provisions of the Xxxxxxxx-Xxxxx Act and the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act. The information Each required form, report and document containing financial statements that has been filed with or submitted to the SEC was accompanied by any certifications required to be supplied filed or submitted by the Company for inclusion in the joint proxy statement/prospectus (the “Proxy Statement”) to be sent to the stockholders of the Company in connection with the meeting of the Company’s stockholders principal executive officer and principal financial officer pursuant to consider the adoption of this Agreement and the Merger (the “Company Meeting”) and the Partners in connection with the Fund Consent Solicitation (as herein defined) shall not, on the date the Proxy Statement is first mailed to stockholders of the Company and the PartnersXxxxxxxx-Xxxxx Act and, at the time of filing or submission of each such certification, any such certification complied in all material respects with the applicable provisions of the Xxxxxxxx-Xxxxx Act. Neither the Company Meeting and at the Effective Time, contain any statement which, at such time and in light of the circumstances under which it shall be made, is false or misleading with respect to any material fact, or omit to state any material fact necessary in order to make the statements made in the Proxy Statement not false or misleading; or omit to state any material fact necessary to correct any statement in any earlier communication with respect to the solicitation of proxies for the Company Meeting or the solicitation of consents in connection with the Fund Consent Solicitation which has become false or misleading. If at any time prior to the Effective Time any event relating to the Company, any Affiliate (as defined below) of the Company, or any officers or directors of nor any of themits executive officers has received written notice from any Governmental Entity challenging or questioning the accuracy, should be discovered by the Company which should be set forth in an amendment to the Registration Statement completeness, form or a supplement to the Proxy Statement, the Company shall promptly inform the Fund. As used in this Agreement, the termmanner of filing of such certifications.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Salesforce Com Inc), Merger Agreement (Demandware Inc)
SEC Filings; Financial Statements; Information Provided. (a) All The Company has filed all registration statements, forms, reports reports, certifications and other documents required to be filed by the Company with the SEC since January 1March 28, 2001 (including those that the Company may file after the date hereof until the Closing) 2009. All such registration statements, forms, reports, certifications and other documents are referred to herein as the “Company SEC ReportsDocuments.” Except as set forth in Section 3.4 To the extent that the form of any Company SEC Document available on the SEC’s XXXXX system reflects the redaction of any of such Company Disclosure ScheduleSEC Document’s terms, the Company has made available to Parent an unredacted copy of such Company SEC Reports (i) Document. The Company has made available to the Parent copies of all comment letters received by the Company from the staff of the SEC since March 28, 2009 and all responses to such comment letters by or on behalf of the Company. The Company SEC Documents at the time filed, or as amended prior to the date of this Agreement, were or will be filed on a timely basis and (ii) were or will be prepared in compliance in all material respects with the applicable requirements of the Securities Act, Act and the Exchange Act, as Act and the case may be, rules and regulations of the SEC thereunder applicable to such Company SEC Reports. None of the Company SEC Reports when filedDocuments, after giving effect to any amendments and supplements thereto filed prior to the date hereof, contained did not contain any untrue statement of a material fact or omitted omit to state any a material fact required to be stated therein in such Company SEC Documents or necessary in order to make the statements thereinin such Company SEC Documents, in the light of the circumstances under which they were made, not misleading. None No Subsidiary of the Company’s Subsidiaries has filed, Company is subject to the reporting requirements of Section 13 or is obligated to file, any forms, reports, schedules, statements or other documents with Section 15(d) of the SECExchange Act. As used in this Section 3.4(a)3.5, the term “filedfile” shall be broadly construed to include any manner in which a document or information is furnished, supplied or otherwise made available to the SEC.
(b) Each of the consolidated financial statements (including, in each case, any related notes and schedules) contained or to be contained in the Company SEC Reports Documents at the time filed (i) complied or will comply as to form in all material respects with applicable accounting requirements and the published rules and regulations of the SEC with respect theretothereto (including Regulation S-X), (ii) were or will be prepared in accordance with United States generally accepted accounting principles (“GAAP”) applied on a consistent basis throughout the periods involved and at the dates involved (except as may be indicated in the notes to such financial statements or, in the case of unaudited statements, as permitted by the SEC on Form 10-Q under the Exchange Act or for normal year-end adjustments) Act), and (iii) fairly presented or will fairly present the consolidated financial position of the Company and its Subsidiaries as of the dates thereof and the consolidated results of its operations and cash flows for the periods indicated, consistent with the books and records of the Company and its Subsidiaries, except that the unaudited interim financial statements were or are subject to normal and recurring year-end adjustments that have which were not been and are or will not expected to be material to the Companyin amount or effect. The unaudited consolidated, audited balance sheet of the Company as of June March 30, 2004 2012 is referred to herein as the “Company Balance Sheet.”
(c) The information to be supplied Deloitte & Touche LLP, the Company’s current auditors, is and has been at all times since its engagement by the Company for inclusion in the registration statement on Form S-4 pursuant (x) “independent” with respect to which the Company Series A Preferred Stock issued within the meaning of Regulation S-X and (y) in compliance with subsections (g) through (l) of Section 10A of the Merger Exchange Act (to the extent applicable) and the Company Common Stock issuable upon conversion related rules of the SEC and the Public Company Series A Preferred Stock will be registered under the Securities Act Accounting Oversight Board.
(including any amendments or supplements, the “Registration Statement”), shall not at the time the Registration Statement is declared effective by the SEC contain any untrue d) The proxy statement of a material fact or omit to state any material fact required to be stated in the Registration Statement or necessary in order to make the statements in the Registration Statement not misleading. The information to be supplied by the Company for inclusion in the joint proxy statement/prospectus (the “Proxy Statement”) to be sent to the stockholders of the Company with respect to the Company Meeting (including the information included in connection with the meeting of the Company’s stockholders to consider the adoption of this Agreement and the Merger or incorporated by reference therein) (the “Company MeetingProxy Statement”) and the Partners in connection with the Fund Consent Solicitation (as herein defined) shall not, on the date the Proxy Statement is first mailed to stockholders of the Company and the Partners, or at the time of the Company Meeting and at the Effective TimeMeeting, contain any statement which, at such time and in light of the circumstances under which it shall be made, is false or misleading with respect to any material fact, or omit to state any material fact necessary in order to make the statements made in the Proxy Statement not false or misleadingmisleading in light of the circumstances under which they were or shall be made; or omit to state any material fact necessary to correct any statement in any earlier communication with respect to the solicitation of proxies for the Company Meeting or the solicitation of consents in connection with the Fund Consent Solicitation which has become false or misleading, provided that the Company makes no representation with respect to any information supplied in writing by or on behalf of the Parent for inclusion in the Proxy Statement. If at any time prior to the Effective Time Company Meeting any fact or event relating to the Company, any Affiliate (as defined below) of the Company, Company or any officers or directors of any of them, its Affiliates which should be set forth in a supplement to the Proxy Statement should be discovered by the Company which or should be set forth in an amendment to the Registration Statement or a supplement to the Proxy Statementoccur, the Company shall shall, promptly after becoming aware thereof, inform the Fund. As used in this Agreement, the termParent of such fact or event.
Appears in 2 contracts
Samples: Merger Agreement (Network Equipment Technologies Inc), Merger Agreement (Sonus Networks Inc)
SEC Filings; Financial Statements; Information Provided. (a) All Public Company has filed all registration statements, forms, reports reports, certifications and other documents required to be filed by the Public Company and/or in connection with Merger Sub with the SEC since January 1, 2001 (including 2017. All such registration statements, forms, reports and other documents, as amended prior to the date hereof, and those that the Public Company may file after the date hereof until the Closing) , are referred to herein as the “Public Company SEC Reports.” Except as set forth in Section 3.4 All of the Company Disclosure Schedule, the Public Company SEC Reports (iA) were or will be filed on a timely basis and basis, (iiB) were at the time filed (or if amended prior to the date hereof, when so amended), complied, or will be prepared in compliance comply when filed, as to form in all material respects with the applicable requirements of the Securities Act, Act and the Exchange Act, as the case may be, Act applicable to such Company SEC Reports. None of the Public Company SEC Reports when filed, after giving effect to any amendments and supplements thereto (C) did not or will not at the time they were filed (or if amended prior to the date hereof, contained when so amended) or are filed contain any untrue statement of a material fact or omitted omit to state any a material fact required to be stated therein in such Public Company SEC Reports or necessary in order to make the statements thereinin such Public Company SEC Reports, in the light of the circumstances under which they were made, not misleading. None of the Company’s Subsidiaries has filed, or is obligated to file, in any forms, reports, schedules, statements or other documents with the SEC. As used in this Section 3.4(a), the term “filed” shall be broadly construed to include any manner in which a document or information is furnished, supplied or otherwise made available to the SECmaterial respect.
(b) Each of the consolidated financial statements (including, in each case, any related notes and schedules) contained or to be contained in the Public Company SEC Reports at the time filed (or if amended prior to the date hereof, when so amended) (i) complied or will comply as to form in all material respects with applicable accounting requirements and the published rules and regulations of the SEC with respect thereto, (ii) were or will be prepared in accordance with generally accepted accounting principles (“GAAP”) GAAP applied on a consistent basis throughout the periods involved and at the dates involved (except as may be indicated in the notes to such financial statements or, in the case of unaudited interim financial statements, as permitted by the SEC on Form 10-Q under the Exchange Act or for normal year-end adjustmentsAct) and (iii) fairly presented or will fairly present in all material respects the consolidated financial position of the Public Company and its Subsidiaries as of the dates thereof indicated and the consolidated assets, liabilities, business, financial condition, results of its operations and cash flows for the periods indicated, consistent with the books and records of Public Company and its Subsidiaries, except that the unaudited interim financial statements were or are subject to normal and recurring year-end adjustments that have not been and are not expected to be material to the Companyadjustments. The unaudited consolidated balance sheet of the Public Company as of June 30, 2004 2019 is referred to herein as the “Public Company Balance Sheet.”
(c) Cherry Bekaert LLP, Public Company’s current auditors, is and has been at all times since its engagement by Public Company (i) “independent” with respect to Public Company within the meaning of Regulation S-X and (ii) in compliance with subsections (g) through (l) of Section 10A of the Exchange Act (to the extent applicable) and the related rules of the SEC and the Public Company Accounting Oversight Board.
(d) The information in the Registration Statement to be supplied by or on behalf of Public Company for inclusion or incorporation by reference in the Registration Statement or to be included or supplied by or on behalf of Public Company for inclusion in the registration statement on Form S-4 pursuant to which the Company Series any Regulation M-A Preferred Stock issued in the Merger and the Company Common Stock issuable upon conversion of the Company Series A Preferred Stock will be registered under the Securities Act (including any amendments or supplements, the “Registration Statement”)Filing, shall not at the time the Registration Statement or any such Regulation M-A filing is filed with the SEC, at any time it is amended or supplemented or at the time the Registration Statement is declared effective by the SEC SEC, as applicable, contain any untrue statement of a material fact or omit to state any material fact required to be stated in the Registration Statement therein or necessary in order to make the statements in the Registration Statement therein not misleading. The information to be supplied by the or on behalf of Public Company for inclusion in the joint proxy statement/prospectus (the “Proxy Statement”) /Prospectus to be sent to the stockholders of the Public Company and Merger Partner in connection with the meeting of the Company’s stockholders to consider the adoption of this Agreement and the Merger (the “Public Company Meeting”) and , which information shall be deemed to include all information about or relating to Public Company, the Partners in connection with Public Company Voting Proposal, the Fund Consent Solicitation (Other Public Company Voting Proposals, as herein defined) applicable, or the Public Company Meeting, shall not, on the date the Proxy Statement Statement/Prospectus is first mailed to stockholders of the Public Company and the Partnersor Merger Partner, or at the time of the Public Company Meeting and or at the Effective Time, contain any statement whichthat, at such time and in light of the circumstances under which it shall be made, is false or misleading with respect to any material fact, or omit to state any material fact necessary in order to make the statements made in the Proxy Statement Statement/Prospectus not false or misleading; or omit to state any material fact necessary to correct any statement in any earlier communication with respect to the solicitation of proxies for the Public Company Meeting or the solicitation of consents in connection with the Fund Consent Solicitation which that has become false or misleading.
(e) Public Company has established and maintains 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 under the Exchange Act) as required by Rule 13a-15 under the Exchange Act. If at Public Company’s disclosure controls and procedures are reasonably designed to ensure that all material information required to be disclosed by Public 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 material information is accumulated and communicated to Public Company’s management as appropriate to allow timely decisions regarding required disclosure and to make the certifications required pursuant to Sections 302 and 906 of the Sxxxxxxx-Xxxxx Act. Since January 1, 2017, Public Company’s principal executive officer and its principal financial officer have disclosed to Public Company’s auditors and the audit committee of the Public Company Board all known (i) significant deficiencies and material weaknesses in the design or operation of internal controls over financial reporting that are reasonably likely to adverse and materially affect the Company’s ability to record, process, summarize and report financial information, (ii) material weaknesses in the design and operation of internal controls over financial reporting, and (iii) any time prior fraud, whether or not material, that involves the management or other employees who have a significant role in the Public Company’s internal controls over financial reporting. Each of the Public Company and its Subsidiaries have materially complied with or substantially addressed such deficiencies, material weaknesses and/or fraud.
(f) Public Company is in compliance in all material respects with the applicable provisions of the Sxxxxxxx-Xxxxx Act and the Dxxx-Fxxxx Xxxx Street Reform and Consumer Protection Act. Each required form, report and document containing financial statements that has been filed with or submitted to the Effective Time SEC was accompanied by any event relating certifications required to be filed or submitted by Public Company’s principal executive officer and principal financial officer pursuant to the CompanySxxxxxxx-Xxxxx Act and, at the time of filing or submission of each such certification, any Affiliate (as defined below) such certification complied in all material respects with the applicable provisions of the Company, or any officers or directors of Sxxxxxxx-Xxxxx Act. Neither Public Company nor any of themits executive officers has received written notice from any Governmental Entity challenging or questioning the accuracy, should be discovered by completeness, form or manner of filing of such certifications.
(g) Public Company is in compliance in all material respects with the Company which should be set forth in an amendment to applicable listing and other rules and regulations of Nasdaq.
(h) As of the Registration Statement or a supplement to the Proxy Statement, the Company shall promptly inform the Fund. As used in date of this Agreement, the termPublic Company has timely responded to all comment letters of the staff of the SEC relating to the Public Company SEC Reports, and the SEC has not advised the Public Company that any final responses are inadequate, insufficient or otherwise non-responsive. The Public Company has made available to the Merger Partner true, correct and complete copies of all comment letters, written inquiries and enforcement correspondence between the SEC, on the one hand, and the Public Company and any of its Subsidiaries, on the other hand, occurring since January 1, 2017 and will, reasonably promptly following the receipt thereof, make available to the Company any such correspondence sent or received after the date hereof. To the knowledge of the Public Company, as of the date of this Agreement, none of the Public Company SEC Reports is the subject of ongoing SEC review or outstanding SEC comment.
(i) Each of the principal executive officer of the Public Company and the principal financial officer of the Public Company (or each former principal executive officer of the Public Company and each former principal financial officer of the Public Company, as applicable) has made all certifications required by Rule 13a-14 or 15d-14 under the Exchange Act or Sections 302 and 906 of the Sxxxxxxx-Xxxxx Act and the rules and regulations of the SEC promulgated thereunder with respect to the Public Company SEC Reports, and the statements contained in such certifications were true and correct on the date such certifications were made. For purposes of this Section 4.5(i), “principal executive officer” and “principal financial officer” has the meanings given to such terms in the Sxxxxxxx-Xxxxx Act.
(j) Neither the Public Company nor any of its Subsidiaries nor, to the knowledge of the Public Company, any director, officer, employee, or internal or external auditor of the Public Company or any of its Subsidiaries has received or otherwise had or obtained actual knowledge of any substantive material complaint, allegation, assertion or claim, whether written or oral, that the Public Company or any of its Subsidiaries has engaged in questionable accounting or auditing practices.
Appears in 2 contracts
Samples: Merger Agreement (Amergent Hospitality Group, Inc), Merger Agreement (Chanticleer Holdings, Inc.)
SEC Filings; Financial Statements; Information Provided. (a) All The Company has filed all registration statements, forms, reports and other documents required to be filed by the Company with the SEC since January 1, 2001 2004. All such registration statements, forms, reports and other documents (including those that the Company may file after the date hereof until the Closing) and all documents incorporated by reference, in such registration statements, forms, reports and other documents are referred to herein as the “Company SEC Reports.” Except as set forth in Section 3.4 of the Company Disclosure Schedule, the ”. The Company SEC Reports (i) were or will be filed on a timely basis and basis, (ii) were at the time filed, complied, or will be prepared in compliance comply when filed, as to form in all material respects with the applicable requirements of the Securities Act, Act and the Exchange Act, as the case may be, the Xxxxxxxx-Xxxxx Act of 2002 (the “Xxxxxxxx-Xxxxx Act”) and the rules and regulations of the SEC thereunder applicable to such Company SEC Reports. None of , and (iii) did not or will not at the Company SEC Reports when filed, after giving effect to any amendments and supplements thereto time they were or are filed prior to the date hereof, contained contain any untrue statement of a material fact or omitted omit to state any a material fact required to be stated therein in such Company SEC Reports or necessary in order to make the statements thereinin such Company SEC Reports, in the light of the circumstances under which they were made, not misleading. None No Subsidiary of the Company’s Subsidiaries has filed, Company is subject to the reporting requirements of Section 13(a) or Section 15(d) of the Exchange Act or is obligated otherwise required to filefile any form, any forms, reports, schedules, statements report or other documents document with the SEC. As used in this Section 3.4(a)To the Company’s Knowledge, no investigation by the term “filed” shall be broadly construed to include any manner in which a document or information is furnished, supplied or otherwise made available SEC with respect to the SECCompany or any of its Subsidiaries is pending or threatened.
(b) Each of the consolidated financial statements (including, in each case, any related notes and schedules) contained or to be contained in the Company SEC Reports at the time filed (i) complied or will comply as to form in all material respects with applicable accounting requirements and the published rules and regulations of the SEC with respect thereto, (ii) were was or will be prepared in accordance with United States generally accepted accounting principles (“GAAP”) applied on a consistent basis throughout the periods involved (except as may be indicated in the notes to such financial statements or, in the case of unaudited interim financial statements, as permitted by the SEC on Form 10-Q under the Exchange Act or for normal year-end adjustments) Act), and (iii) fairly presented or will fairly present in all material respects the consolidated financial position of the Company and its Subsidiaries as of the dates thereof indicated and the consolidated results of its their operations and cash flows for the periods indicated, except that the unaudited interim financial statements were or are subject to normal and recurring year-end adjustments that have not been and are not expected to be material to the Companyadjustments. The consolidated unaudited balance sheet of the Company as of June 30December 31, 2004 2006 is referred to herein as the “Company Balance Sheet.”
(c) The information to be supplied by or on behalf of the Company for inclusion or incorporation by reference in the registration statement Schedule TO or the Offer Documents, on Form S-4 pursuant the date the Schedule TO is filed with the SEC and on the date the Offer Documents are first published, sent or given to which the Company Series A Preferred Stock issued in the Merger and the holders of shares of Company Common Stock issuable upon conversion of the Company Series A Preferred Stock will be registered under the Securities Act (including any amendments or supplements, the “Registration Statement”)Stock, shall not at the time the Registration Statement is declared effective by the SEC contain any untrue statement of a material fact or omit to state any material fact required to be stated in the Registration Statement therein or necessary in order to make the statements in the Registration Statement therein not misleading, in light of the circumstances in which they shall be made. The information to be supplied by the Company for inclusion in the joint proxy statement/prospectus Proxy Statement (the “Proxy Statement”if required) to be sent to the stockholders holders of the shares of Company Common Stock in connection with the meeting of the Company’s stockholders to consider the adoption of this Agreement and the Merger (the “Company Meeting”) and the Partners in connection with the Fund Consent Solicitation (as herein defined) shall not, on the date the Proxy Statement is first mailed published, sent or given to stockholders holders of the shares of Company Common Stock and the Partners, at the time of the Company Meeting and at the Effective TimeMeeting, shall not contain any statement which, at such time and in light of the circumstances under which it shall be made, is false or misleading with respect to any material fact, or omit to state any material fact necessary in order to make the statements made in the Proxy Statement not false or misleadingmisleading in light of the circumstances in which they shall be made; or omit to state any material fact necessary to correct any statement in any earlier communication with respect to the solicitation of proxies for the Company Meeting or the solicitation of consents in connection with the Fund Consent Solicitation which has become false or misleading. If at any time prior to the Effective Time Company Meeting any fact or event relating to the Company, any Affiliate (as defined below) of the Company, Company or any officers or directors of any of them, its Affiliates should be discovered by the Company which should be set forth in an amendment to the Registration Statement Schedule TO or a supplement to the Offer Documents or the Proxy Statement, the Company shall shall, promptly after becoming aware thereof, inform the FundParent of such fact or event.
(d) The Company is in compliance in all material respects with the applicable provisions of the Xxxxxxxx-Xxxxx Act. As used Each required form, report and document containing financial statements that has been filed with or submitted to the SEC since July 21, 2003 was accompanied by the certifications required to be filed or submitted by the Company’s chief executive officer and chief financial officer pursuant to the Xxxxxxxx-Xxxxx Act and the applicable rules and regulations promulgated thereunder and, at the time of filing or submission of each such certification, such certification complied in all material respects with the applicable provisions of the Xxxxxxxx-Xxxxx Act and the rules and regulations promulgated thereunder.
(e) The Company maintains disclosure controls and procedures required by Rule 13a-15 or 15d-15 under the Exchange Act. Such disclosure controls and procedures are effective to ensure that all material information concerning the Company is made known on a timely basis to the individuals responsible for the preparation of the Company’s filings with the SEC and other public disclosure documents. The Company is in compliance in all material respects with the applicable listing and other rules and regulations of The Nasdaq Global Market.
(f) Except as disclosed in the Company’s SEC Reports or the Company Disclosure Schedule, the Company has not, since January 1, 2004, received any written notification from its independent auditors, any Governmental Entity or any other Person of a (i) “reportable condition” or (ii) “material weakness” in the Company’s internal controls. For purposes of this Agreement, the termterms “reportable condition” and “material weakness” shall have the meanings assigned to them in the Statements of Auditing Standards 60, as in effect on the date hereof.
(g) Set forth on Section 3.5(g) of the Company Disclosure Schedule is a list of all bank accounts held or maintained by the Company or its Subsidiaries.
Appears in 2 contracts
Samples: Merger Agreement (Mapinfo Corp), Merger Agreement (Mapinfo Corp)
SEC Filings; Financial Statements; Information Provided. (a) All Except as described in Section 3.5(a) of the Company Disclosure Schedule, the Company has filed or furnished all registration statements, forms, reports reports, schedules, certifications and other documents required to be filed or furnished by the Company with the SEC since January 1, 2001 2004 (including those that the Company may file after the date hereof until the Closing) are referred to herein as the “Company SEC Reports.” ”). Except as set forth described in Section 3.4 3.5(a) of the Company Disclosure Schedule, the Company SEC Reports (i) were as amended, supplemented and restated by Company SEC Reports that have been filed prior to the date hereof or will be filed on a timely basis and prior to the Closing) (iii) were complied (at the time filed) or will be prepared in compliance comply (when filed) as to form in all material respects with the applicable requirements of the Securities Act, Act and the Exchange Act, as the case may be, and the rules and regulations of the SEC thereunder applicable to such Company SEC Reports. None of , and (ii) did not (at the Company SEC Reports when time they were filed, after giving effect to any amendments and supplements thereto filed prior to ) or will not (at the date hereof, contained time they are filed) contain any untrue statement of a material fact or omitted omit to state any a material fact required to be stated therein in such Company SEC Reports or necessary in order to make the statements thereinin such Company SEC Reports, in the light of the circumstances under which they were made, not misleading. None As of the Company’s Subsidiaries has fileddate hereof, there are no outstanding or is obligated to file, any forms, reports, schedules, statements or other documents unresolved comments received from the SEC staff with the SEC. As used in this Section 3.4(a), the term “filed” shall be broadly construed to include any manner in which a document or information is furnished, supplied or otherwise made available respect to the SECCompany SEC Documents.
(b) Each Except as described in Section 3.5(b) of the Company Disclosure Schedule, each of the consolidated financial statements (including, in each case, any related notes and schedules) contained or to be contained in the Company SEC Reports (as amended, supplemented and restated by Company SEC Reports that have been filed prior to the date hereof or will be filed prior to the Closing) at the time filed (i) complied or will comply as to form in all material respects with applicable accounting requirements and the published rules and regulations of the SEC with respect thereto, (ii) were was or will be prepared in accordance with United States generally accepted accounting principles (“GAAP”) applied on a consistent basis throughout the periods involved (except as may be indicated in the notes to such financial statements or, in the case of unaudited interim financial statements, as permitted by the SEC on Form 10-Q under the Exchange Act or for normal year-end adjustments) Act), and (iii) fairly presented or will fairly present in all material respects the consolidated financial position of the Company and its Subsidiaries as of the dates thereof indicated and the consolidated results of its their operations and cash flows for the periods indicated, except that the unaudited interim financial statements were or are subject to normal and recurring year-end adjustments that have not adjustments, none of which has been and are not expected to be or will be, in the aggregate, material to the CompanyCompany and its Subsidiaries, taken as a whole. The consolidated unaudited balance sheet of the Company as of June September 30, 2004 2006 is referred to herein as the “Company Balance Sheet.”
(c) The proxy statement to be filed by, and sent to the stockholders of, the Company in connection with the Company Meeting (the “Proxy Statement”) will comply as to form in all material respects with the requirements of the Exchange Act. The information supplied or to be supplied by or on behalf of the Company for inclusion or incorporation by reference in the registration statement Proxy Statement, on Form S-4 pursuant the respective dates the Proxy Statement is filed with the Commission and on the date it is first published, sent or given to which the Company Series A Preferred Stock issued in the Merger and the Company Common Stock issuable upon conversion stockholders of the Company Series A Preferred Stock will be registered under and at the Securities Act (including any amendments or supplements, time of the “Registration Statement”)Company Stockholders Meeting, shall not at the time the Registration Statement is declared effective by the SEC contain any untrue statement of a material fact or omit to state any material fact required to be stated in the Registration Statement therein or necessary in order to make the statements in the Registration Statement not misleading. The information to be supplied by the Company for inclusion in the joint proxy statement/prospectus (the “Proxy Statement”) to be sent to the stockholders of the Company in connection with the meeting of the Company’s stockholders to consider the adoption of this Agreement and the Merger (the “Company Meeting”) and the Partners in connection with the Fund Consent Solicitation (as herein defined) shall nottherein, on the date the Proxy Statement is first mailed to stockholders of the Company and the Partners, at the time of the Company Meeting and at the Effective Time, contain any statement which, at such time and in light of the circumstances under which it shall be they are made, is false not misleading; provided, that the Company makes no representation or misleading with respect to warranty concerning any material fact, information supplied by the Buyer or omit to state any material fact necessary in order to make the statements made Acquisition Sub for inclusion in the Proxy Statement not false or misleading; or omit to state any material fact necessary to correct any statement in any earlier communication with respect to the solicitation of proxies for the Company Meeting or the solicitation of consents in connection with the Fund Consent Solicitation which has become false or misleadingStatement. If at any time prior to the Effective Time Company Meeting any fact or event relating to the Company, any Affiliate (as defined below) of the Company, Company or any officers or directors of any of them, its Affiliates which should be set forth in a supplement to the Proxy Statement should be discovered by the Company which or should be set forth in an amendment to the Registration Statement or a supplement to the Proxy Statementoccur, the Company shall shall, promptly after becoming aware thereof, inform the Fund. As used Buyer of such fact or event.
(d) Except as described in this AgreementSection 3.5(d) of the Company Disclosure Schedule, the termCompany is in compliance in all material respects with the applicable provisions of the Xxxxxxxx-Xxxxx Act of 2002 (the “Xxxxxxxx-Xxxxx Act”). Each required form, report and document containing financial statements that has been filed with or submitted to the SEC since January 1, 2004 was accompanied by the certifications required to be filed or submitted by the Company’s chief executive officer and chief financial officer pursuant to the Xxxxxxxx-Xxxxx Act and, at the time of filing or submission of each such certification, such certification complied in all material respects with the applicable provisions of the Xxxxxxxx-Xxxxx Act and the rules and regulations promulgated thereunder.
(e) The Company maintains internal controls over financial reporting and disclosure controls and procedures (as such terms are defined in Rule 13a-15 and 15d-15 under the Exchange Act). Such disclosure controls and procedures are effective to ensure that all material information concerning the Company is made known on a timely basis to the individuals responsible for the preparation of the Company’s filings with the SEC and other public disclosure documents. The Company’s principal executive officer and its principal financial officer have disclosed, to the extent known to them and based on their most recent evaluation, to the Company’s auditors and the audit committee of the board of directors of the Company (x) all significant deficiencies in the design or operation of internal controls which are reasonably likely to adversely affect the Company’s ability to record, process, summarize and report financial data and have identified for the Company’s auditors any material weakness in internal controls and (y) any fraud, whether or not material, that involves management or other employees who have a significant role in the Company’s internal controls over financial reporting. The Company is in compliance in all material respects with the applicable listing and other rules and regulations of The Nasdaq National Market.
Appears in 2 contracts
Samples: Merger Agreement (Verint Systems Inc), Merger Agreement (Witness Systems Inc)
SEC Filings; Financial Statements; Information Provided. (a) All Public Company has filed or furnished all registration statements, forms, reports reports, certifications and other documents required to be filed or furnished by the Public Company with the SEC since January 1for a period of at least twelve calendar months immediately preceding the execution of this Agreement. All such registration statements, 2001 (including forms, reports, certifications, and other documents, as amended prior to the date hereof, and those that the Public Company may file or furnish after the date hereof until the Closing) , are referred to herein as the “Public Company SEC Reports.” Except as set forth in Section 3.4 All of the Company Disclosure Schedule, the Public Company SEC Reports (iA) were or will be filed or furnished, as applicable on a timely basis and basis, (iiB) were at the time filed or furnished (or if amended prior to the date hereof, when so amended), complied, or will be prepared in compliance comply when filed or furnished, as to form in all material respects with the applicable requirements of the Securities Act, Act and the Exchange Act, as the case may be, Act applicable to such Company SEC Reports. None of the Public Company SEC Reports when filed, after giving effect to any amendments and supplements thereto (C) did not or will not at the time they were filed or furnished (or if amended prior to the date hereof, contained when so amended) or are filed or furnished contain any untrue statement of a material fact or omitted omit to state any a material fact required to be stated therein in such Public Company SEC Reports or necessary in order to make the statements thereinin such Public Company SEC Reports, in the light of the circumstances under which they were made, not misleading. None of the Company’s Subsidiaries has filed, or is obligated to file, in any forms, reports, schedules, statements or other documents with the SEC. As used in this Section 3.4(a), the term “filed” shall be broadly construed to include any manner in which a document or information is furnished, supplied or otherwise made available to the SECmaterial respect.
(b) Each of the consolidated financial statements (including, in each case, any related notes and schedules) contained or to be contained in the Public Company SEC Reports at the time filed (or if amended prior to the date hereof, when so amended) (i) complied or will comply as to form in all material respects with applicable accounting requirements and the published rules and regulations of the SEC with respect thereto, (ii) were or will be prepared in accordance with generally accepted accounting principles (“GAAP”) GAAP applied on a consistent basis throughout the periods involved and at the dates involved (except as may be indicated in the notes to such financial statements or, in the case of unaudited interim financial statements, as permitted by the SEC on Form 10-Q under the Exchange Act or for normal year-end adjustmentsSEC) and (iii) fairly presented or will fairly present in all material respects the consolidated financial position of the Public Company and its subsidiaries as of the dates thereof indicated and the consolidated results of its operations and cash flows for the periods indicated, except that the unaudited interim financial statements were or are subject to normal and recurring year-end adjustments that have not been and are not expected to be material to the Companyin amount. The unaudited consolidated balance sheet of the Public Company as of June 30March 31, 2004 2024 is referred to herein as the “Public Company Balance Sheet.”
(c) Since January 1, 2024 and prior to the date of this Agreement, Public Company has not received any correspondence from Nasdaq or the staff thereof relating to the delisting or maintenance of listing of the Public Company Common Stock on Nasdaq. As of the date hereof, there are no outstanding or unresolved comments in comment letters received from the SEC staff with respect to any Public Company SEC Reports.
(d) Public Company’s auditor has at all times since its engagement by Public Company been “independent” with respect to Public Company within the meaning of Regulation S-X under the Exchange Act and, to the knowledge of Public Company, in compliance with subsections (g) through (l) of Section 10A of the Exchange Act (to the extent applicable) and the related rules and regulations promulgated by the SEC and the Public Company Accounting Oversight Board thereunder.
(e) The information in the Registration Statement to be supplied by or on behalf of Public Company for inclusion or incorporation by reference in the Registration Statement or supplied by or on behalf of Public Company for inclusion in the registration statement on Form S-4 pursuant to which the Company Series any Regulation M-A Preferred Stock issued in the Merger and the Company Common Stock issuable upon conversion of the Company Series A Preferred Stock will be registered under the Securities Act (including any amendments or supplements, the “Registration Statement”)Filing, shall not at the time the Registration Statement or any such Regulation M-A filing is filed with the SEC, at any time it is amended or supplemented or at the time the Registration Statement is declared effective by the SEC SEC, as applicable, contain any untrue statement of a material fact or omit to state any material fact required to be stated in the Registration Statement therein or necessary in order to make the statements therein in light of the Registration Statement circumstances under which they are made, not false or misleading. The information to be supplied by the or on behalf of Public Company for inclusion in the joint proxy statement/prospectus (the “Proxy Statement”) /Prospectus to be sent to the stockholders of the Public Company and Merger Partner in connection with the meeting of Public Company Meeting, to solicit the approval by the Public Company’s stockholders of the Public Company Stockholder Approvals, which information shall be deemed to consider include all material information about or relating to Public Company, the adoption of this Agreement and Public Company Stockholder Approvals or the Merger (the “Public Company Meeting”) and the Partners in connection with the Fund Consent Solicitation (as herein defined) , shall not, on the date the Proxy Statement Statement/Prospectus is first mailed to stockholders of the Public Company and the Partnersor Merger Partner, or at the time of the Public Company Meeting and at the Effective TimeMeeting, contain any untrue statement which, at such time and in light of the circumstances under which it shall be made, is false or misleading with respect to any a material fact, fact or omit to state any a material fact necessary in order to make the statements made therein, in the Proxy Statement light of the circumstances under which they were made, not false or misleading; provided, however, Public Company makes no representations or omit to state any material fact necessary to correct any statement in any earlier communication with respect warranties as to the solicitation of proxies for the Company Meeting information contained in or the solicitation of consents in connection with the Fund Consent Solicitation which has become false or misleading. If at any time prior to the Effective Time any event relating to the Company, any Affiliate (as defined below) of the Company, or any officers or directors of any of them, should be discovered by the Company which should be set forth in an amendment to omitted from the Registration Statement or a supplement to the Proxy Statement, /Prospectus in reliance upon and in conformity with information furnished in writing to Public Company by or on behalf of Merger Partner specifically for inclusion in the Company shall promptly inform Registration Statement or the Fund. As used in this Agreement, the termProxy Statement/Prospectus which is misleading by virtue of such reliance or conformity.
Appears in 2 contracts
Samples: Merger Agreement (Pieris Pharmaceuticals, Inc.), Merger Agreement (Pieris Pharmaceuticals, Inc.)
SEC Filings; Financial Statements; Information Provided. (a) All SmartForce has filed all registration statements, forms, reports and other documents required to be filed by the Company SmartForce with the SEC since January 1, 2001 2000 and has made available to SkillSoft copies of all registration statements, forms, reports and other documents filed by SmartForce with the SEC since such date, all of which are available on the SEC's XXXXX system. All such required registration statements, forms, reports and other documents (including those that the Company SmartForce may file after the date hereof until the Closing) are referred to herein as the “Company "SmartForce SEC Reports.” Except as set forth in Section 3.4 of the Company Disclosure Schedule, the Company " The SmartForce SEC Reports (i) were or will be filed on a timely basis and basis, (ii) at the time filed, were or will be prepared in compliance in all material respects with the applicable requirements of the Securities Act, Act and the Exchange Act, as the case may be, and the rules and regulations of the SEC thereunder applicable to such Company SmartForce SEC Reports. None of , and (iii) did not or will not at the Company SEC Reports when filed, after giving effect to any amendments and supplements thereto time they were or are filed prior to the date hereof, contained contain any untrue statement of a material fact or omitted omit to state any a material fact required to be stated therein in such SmartForce SEC Reports or necessary in order to make the statements thereinin such SmartForce SEC Reports, in the light of the circumstances under which they were made, not misleading. None No Subsidiary of SmartForce is subject to the reporting requirements of Sections 13(a) or 15(d) of the Company’s Subsidiaries has filed, or is obligated to file, any forms, reports, schedules, statements or other documents with the SEC. As used in this Section 3.4(a), the term “filed” shall be broadly construed to include any manner in which a document or information is furnished, supplied or otherwise made available to the SECExchange Act.
(b) Each of the consolidated financial statements (including, in each case, any related notes and schedules) contained or to be contained in the Company SmartForce SEC Reports at the time filed (i) complied or will comply as to form in all material respects with applicable accounting requirements and the published rules and regulations of the SEC with respect thereto, (ii) were or will be prepared in accordance with generally accepted accounting principles (“GAAP”) GAAP applied on a consistent basis throughout the periods involved (except as may be indicated in the notes to such financial statements or, in the case of unaudited interim financial statements, as permitted by the SEC on Form 10-Q under the Exchange Act or for normal year-end adjustmentsAct) and (iii) fairly presented or will fairly present in all material respects the consolidated financial position of the Company SmartForce and its Subsidiaries as of the dates thereof indicated and the consolidated results of SmartForce and its Subsidiaries' operations and cash flows for the periods indicated, consistent with the books and records of SmartForce and its Subsidiaries, except that the unaudited interim financial statements were or are subject to normal and recurring year-end adjustments that have which were not been and or are not expected to be material to the Companyin amount. The consolidated, unaudited balance sheet of the Company SmartForce as of June 30March 31, 2004 2002 is referred to herein as the “Company "SmartForce Balance Sheet.”"
(c) SmartForce has previously furnished to SkillSoft a complete and correct copy of any amendments or modifications, which have not yet been filed with the SEC but which are required to be filed, to agreements, documents or other instruments which previously had been filed by SmartForce with the SEC pursuant to the Securities Act or the Exchange Act.
(d) The information in the Registration Statement to be supplied by or on behalf of SmartForce for inclusion or incorporation by reference in the Company Registration Statement or to be supplied by or on behalf of SmartForce for inclusion in the registration statement on Form S-4 pursuant to which the Company Series any Regulation M-A Preferred Stock issued in the Merger and the Company Common Stock issuable upon conversion of the Company Series A Preferred Stock will be registered under the Securities Act (including any amendments or supplements, the “Registration Statement”)Filing, shall not at the time the Registration Statement or such Regulation M-A Filing is filed with the SEC, at any time it is amended or supplemented, or at the time the Registration Statement is declared effective by the SEC contain any untrue statement of a material fact or omit to state any material fact required to be stated in the Registration Statement therein or necessary in order to make the statements in the Registration Statement not misleading. The information to be supplied by the Company for inclusion in the joint proxy statement/prospectus (the “Proxy Statement”) to be sent to the stockholders of the Company in connection with the meeting of the Company’s stockholders to consider the adoption of this Agreement and the Merger (the “Company Meeting”) and the Partners in connection with the Fund Consent Solicitation (as herein defined) shall therein not, on the date the Proxy Statement is first mailed to stockholders of the Company and the Partners, at the time of the Company Meeting and at the Effective Time, contain any statement which, at such time and in light of the circumstances under which it shall be made, is false or misleading with respect to any material fact, or omit to state any material fact necessary in order to make the statements made in the Proxy Statement not false or misleading; or omit to state any material fact necessary to correct any statement in any earlier communication with respect to the solicitation of proxies for the Company Meeting or the solicitation of consents in connection with the Fund Consent Solicitation which has become false or misleading. If at any time prior to the Effective Time any event relating to the Company, any Affiliate (as defined below) of the Company, or any officers or directors of any of them, should be discovered by the Company which should be set forth in an amendment to the Registration Statement or a supplement to the Proxy Statement, the Company shall promptly inform the Fund. As used in this Agreement, the term
Appears in 2 contracts
Samples: Merger Agreement (Smartforce Public LTD Co), Merger Agreement (Skillsoft Corp)
SEC Filings; Financial Statements; Information Provided. (a) All Public Company has filed all registration statements, forms, reports reports, certifications and other documents required to be filed by the Public Company with the SEC since January 1, 2001 2006. All such registration statements, forms, reports, certifications and other documents (including those that the Public Company may file after the date hereof until the Closing) are referred to herein as the “Public Company SEC ReportsDocuments.” All Public Company SEC Documents are publicly available on the SEC’s XXXXX system. Public Company has given to Merger Partner copies of all comment letters received by Public Company from the staff of the SEC and all responses to such comment letters by or on behalf of Public Company since January 1, 2006. Except as set forth disclosed in Section 3.4 4.5(a) of the Public Company Disclosure Schedule, the all Public Company SEC Reports Documents (iA) were or will be filed or deemed filed on a timely basis and basis, (iiB) at the time filed, were or will be prepared in compliance in all material respects with the applicable requirements of the Securities Act, Act and the Exchange Act, as the case may be, and the rules and regulations of the SEC thereunder applicable to such Public Company SEC Reports. None of Documents and (C) did not or will not at the Company SEC Reports when filed, after giving effect to any amendments and supplements thereto time they were or are filed prior to the date hereof, contained contain any untrue statement of a material fact or omitted to state any material fact omission required to be stated therein in such Public Company SEC Documents or necessary in order to make the statements thereinin such Public Company SEC Documents, in the light of the circumstances under which they were made, not misleading. None No Subsidiary of Public Company is subject to the reporting requirements of Section 13 or Section 15(d) of the Company’s Subsidiaries has filed, or is obligated to file, any forms, reports, schedules, statements or other documents with the SECExchange Act. As used in this Section 3.4(a)4.5, the term “filedfile” shall be broadly construed to include any manner in which a document or information is furnished, supplied or otherwise made available to the SEC.
(b) Each of the consolidated financial statements (including, in each case, any related notes and schedules) contained or to be contained in the Public Company SEC Reports Documents at the time filed (i) complied or will comply as to form in all material respects with applicable accounting requirements and the published rules and regulations of the SEC with respect theretothereto (including, without limitation, Regulation S-X of the Exchange Act), (ii) were or will be prepared in accordance with generally accepted accounting principles (“GAAP”) GAAP applied on a consistent basis throughout the periods involved and at the dates involved (except as may be indicated in the notes to such financial statements or, in the case of unaudited interim financial statements, as permitted by the SEC on Form 10-Q under the Exchange Act or for normal year-end adjustmentsto the extent applicable) and (iii) fairly presented or will fairly present the consolidated financial position of the Public Company and its Subsidiaries as of the dates thereof and the consolidated results of its operations and cash flows for the periods indicated, consistent with the books and records of Public Company and its Subsidiaries, except that the unaudited interim financial statements were or are subject to normal and recurring year-end adjustments that have which were not been and are or will not expected to be material to the Companyin amount or effect. The unaudited consolidated balance sheet of the Public Company as of June 30December 31, 2004 2008 contained in Public Company’s Annual Report on Form 10-K, as amended, for the period ended December 31, 2008 (the “Public Company Form 10-K”) filed with the SEC is referred to herein as the “Public Company Balance Sheet.”
(c) The information Cherry, Bekaert & Holland, L.L.P., Public Company’s auditors since fiscal year 2008, is and has been at all times since its engagement by Public Company, and BDO Xxxxxxx, LLP, Public Company’s auditors during fiscal years 2006-2007, was at all times during its engagement by Public Company (i) “independent” with respect to be supplied by Public Company within the Company for inclusion meaning of Regulation S-X and (ii) in the registration statement on Form S-4 pursuant to which the Company Series A Preferred Stock issued in the Merger and the Company Common Stock issuable upon conversion compliance with subsections (g) through (l) of Section 10A of the Company Series A Preferred Stock will be registered under the Securities Exchange Act (including any amendments or supplements, the “Registration Statement”), shall not at the time the Registration Statement is declared effective by the SEC contain any untrue statement of a material fact or omit to state any material fact required to be stated in the Registration Statement or necessary in order to make the statements in the Registration Statement not misleading. The information to be supplied by the Company for inclusion in the joint proxy statement/prospectus (the “Proxy Statement”) to be sent to the stockholders of the Company in connection with the meeting of the Company’s stockholders to consider the adoption of this Agreement and the Merger (the “Company Meeting”extent applicable) and the Partners in connection with related rules of the Fund Consent Solicitation SEC and the Public Company Accounting Oversight Board.
(as herein definedd) The Proxy Statement shall not, on the date the Proxy Statement is first mailed to stockholders of the Company and the PartnersPublic Company, or at the time of the Public Company Meeting and or at the Effective Time, contain any statement whichthat, at such time and in light of the circumstances under which it shall be made, is false or misleading with respect to any material factmisleading, or omit to state any material fact omission necessary in order to make the statements made in the Proxy Statement not false or misleading; or omit to state any material fact necessary to correct any statement in any earlier communication with respect to the solicitation of proxies for the Public Company Meeting or the solicitation of consents in connection with the Fund Consent Solicitation which that has become false or misleading. If at any time prior to the Effective Time any fact or event relating to the Company, any Affiliate (as defined below) of the Company, Public Company or any officers or directors of any of them, should be discovered by the Company its Affiliates which should be set forth in an amendment to the Registration Statement or a supplement to the Proxy StatementStatement should be discovered by Public Company or should occur, the Public Company shall promptly inform Merger Partner of such fact or event.
(e) As of June 30, 2009, (i) the FundNet Assets of Public Company was not less than $8,500,000, (ii) Public Company’s Net Working Capital was not less than $7,400,000 and (iii) Public Company’s Cash and Cash Equivalents was not less than $7,300,000. As used in With respect to a party to this Agreement, the term(i) “
Appears in 2 contracts
Samples: Merger Agreement (Pernix Therapeutics Holdings, Inc.), Merger Agreement (Golf Trust of America Inc)
SEC Filings; Financial Statements; Information Provided. (a) All The Company has filed or furnished all registration statements, forms, reports and other documents required to be filed or furnished by the Company with the SEC since January 1, 2001 2018 (the “Lookback Date”). All such registration statements, forms, reports and other documents, as such documents have been amended since the time of their filing or furnishing (including exhibits and all other information incorporated therein and those registration statements, forms, reports and other documents that the Company may file or furnish after the date hereof until the Closing) are referred to herein as the “Company SEC Reports.” Except As of their respective filing dates or, if amended, as set forth in Section 3.4 of the Company Disclosure Scheduledate of such last amendment, the Company SEC Reports (i) were were, and the Company SEC Reports filed or furnished after the date hereof will be be, filed or furnished on a timely basis and basis, (ii) were complied, and with respect to the Company SEC Reports filed or furnished after the date hereof will be prepared in compliance comply, as to form in all material respects with the applicable requirements of the Securities Act, Act and the Exchange Act, as the case may be, Act applicable to such Company SEC Reports. None of Reports and (iii) did not, and the Company SEC Reports when filed, filed or furnished after giving effect to any amendments and supplements thereto filed prior to the date hereofhereof will not, contained contain any untrue statement of a material fact or omitted omit to state any a material fact required to be stated therein in such Company SEC Reports or necessary in order to make the statements thereinin such Company SEC Reports, in the light of the circumstances under which they were made, not misleading. As of the date hereof, there are no outstanding or unresolved comments received from the SEC with respect to the Company SEC Reports. To the Company’s Knowledge, as of the date hereof, the Company has not received any written notification that any of the Company SEC Reports is the subject of any material ongoing SEC investigation. None of the Company’s Subsidiaries has filed, is required to file with or is obligated furnish to file, the SEC any forms, reports, schedules, statements reports or other documents with or is otherwise subject to any reporting obligation under Section 13 or 15(d) of the SEC. As used in this Section 3.4(a), the term “filed” shall be broadly construed to include any manner in which a document or information is furnished, supplied or otherwise made available to the SECExchange Act.
(b) Each of the consolidated financial statements (including, in each case, any related notes and schedules) contained in or to be contained in incorporated by reference into the Company SEC Reports at the time filed (i) complied or will comply as to form in all material respects with applicable accounting requirements and the published rules and regulations of the SEC with respect thereto, (ii) were or will be prepared in accordance with generally accepted accounting principles (“GAAP”) GAAP applied on a consistent basis throughout the periods involved (except as may be indicated therein or in the notes to such financial statements or, in the case of unaudited interim financial statements, as permitted by the SEC on Form 10-Q under the Exchange Act or for normal year-end adjustments) Act), and (iii) fairly presented or will fairly present in all material respects the consolidated financial position of the Company and its Subsidiaries as of the dates thereof indicated and the consolidated results of its operations and cash flows for the periods indicated, except that the unaudited interim financial statements were or are subject to normal and recurring year-end adjustments that have not been and are not expected to be material to the Company. The unaudited balance sheet of the Company as of June 30, 2004 is referred to herein as the “Company Balance Sheetadjustments.”
(c) The information Subject to be supplied by the Company for inclusion in following sentence, (i) the registration statement Proxy Statement, on Form S-4 pursuant the date it is first mailed to which the Company Series A Preferred Stock issued in the Merger and the holders of shares of Company Common Stock issuable upon conversion and at the time of the Company Series A Preferred Stock will be registered under Stockholders Meeting, and if amended or supplemented, at the Securities Act (including time of any amendments amendment or supplements, the “Registration Statement”)supplement thereto, shall not at the time the Registration Statement is declared effective by the SEC contain any untrue statement of a material fact or omit to state any material fact required to be stated in the Registration Statement therein or necessary in order to make the statements therein, in light of the circumstances in which they shall be made, not misleading and (ii) the Proxy Statement will comply as to form in all material respects with the requirements of the Exchange Act applicable thereto. Notwithstanding the foregoing, the Company makes no representation or warranty with respect to statements included or incorporated by reference in the Registration Proxy Statement not misleadingbased on any information supplied by or on behalf of Parent, US Holdco or Merger Sub or which relates to Parent, US Holdco or Merger Sub and is approved by Parent, US Holdco or Merger Sub for inclusion or incorporation by reference therein.
(d) The Company is in compliance in all material respects with the applicable rules and regulations of the Xxxxxxxx-Xxxxx Act. The information Each required form, report and document containing financial statements that has been filed with or submitted to the SEC was accompanied by any certifications required to be supplied filed or submitted by the Company for inclusion in the joint proxy statement/prospectus (the “Proxy Statement”) to be sent to the stockholders of the Company in connection with the meeting of the Company’s stockholders principal executive officer and principal financial officer pursuant to consider the adoption of this Agreement and the Merger (the “Company Meeting”) and the Partners in connection with the Fund Consent Solicitation (as herein defined) shall not, on the date the Proxy Statement is first mailed to stockholders of the Company and the PartnersXxxxxxxx-Xxxxx Act and, at the time of filing or submission of each such certification, any such certification complied in all material respects with the applicable provisions of the Xxxxxxxx-Xxxxx Act.
(e) The Company has established and maintains disclosure controls and procedures required by Rule 13a-15 or 15d-15 under the Exchange Act. The Company has designed such disclosure controls and procedures to ensure that all information required to be disclosed by the Company Meeting 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 that all such information is accumulated and communicated to the Company’s management or persons performing similar functions, as appropriate to allow timely decisions regarding disclosure and to make the certifications required pursuant to Section 302 and 906 of the Sarbanes Oxley Act. The Company is in compliance in all material respects with the applicable listing and other rules and regulations of the New York Stock Exchange.
(f) The Company has established and maintains a system of internal control over financial reporting (as defined in Rules 13a-15(f) and 15d-15(f) under the Exchange Act) as required by Rules 13a-15 and 15d-15 under the Exchange Act.
(g) Since the Lookback Date, (i) none of the Company, any of its Subsidiaries or any of their respective Representatives have received any bona fide complaint, allegation, assertion or claim, whether written or oral, regarding the accounting or auditing practices, procedures, methodologies or methods of the Company or any of its Subsidiaries or any of their respective internal accounting controls, including any bona fide complaint, allegation, assertion or claim that the Company or any of its Subsidiaries has engaged in questionable accounting or auditing practices; and (ii) no attorney representing the Company or any of its Subsidiaries, whether or not employed thereby, has reported evidence of a violation of securities laws, breach of fiduciary duty or similar violation by the Company, any of its Subsidiaries or any of their respective Representatives to the Company Board or any committee thereof or to the Company’s chief legal officer or chief executive officer.
(h) The information supplied or to be supplied by or on behalf of the Company, or which relates to the Company and the text of the disclosure thereof is specifically approved in writing by the Company (including via email), for inclusion in any Parent Announcement, and at the Effective Time, time such Parent Announcement in its final form is first published such Parent Announcement shall not contain any untrue statement which, at such time and in light of the circumstances under which it shall be made, is false or misleading with respect to any a material fact, fact or omit to state any material fact necessary in order required to make the statements made therein, in light of the circumstances in which they shall be made, not misleading.
(i) Each individual identified in the Proxy Statement not false or misleading; or omit to state any material fact necessary to correct any statement in any earlier communication with respect definition of “Company’s Knowledge” has read the final form of the Parent Announcements and, to the solicitation of proxies for Company’s Knowledge, the Company Meeting or the solicitation of consents in connection with the Fund Consent Solicitation which has become false or misleading. If at any time prior to the Effective Time any event factual information relating to the CompanyCompany contained in such final form of such Parent Announcements is true and correct in all material respects.
(j) Except as disclosed in Section 3.5(j) of the Company Disclosure Schedule, any Affiliate (as defined below) none of the Company, or any officers or directors of any of them, should be discovered by the Company which should Board or the audit committee of the Company Board is aware of, and since the Lookback Date, none of the Company, the Company Board, the audit committee of the Company Board or the Company’s independent accountants have received any written notification of, any (i) “significant deficiency” in the internal controls over financial reporting of the Company, (ii) “material weakness” in the internal controls over financial reporting of the Company or (iii) fraud, whether or not material, that involves management or other employees of the Company who have a significant role in the internal controls over financial reporting of the Company.
(k) Except for such items that are of the type to be set forth in an amendment the notes to the Registration Statement or a supplement to consolidated financial statements of the Proxy StatementCompany, the Company shall promptly inform is not a party to any material “off-balance sheet arrangements” of the Fund. As used type described in Instruction 8 to Item 303(b) of Regulation S-K of the SEC.
(l) Since the Lookback Date, neither the Company nor any of its Subsidiaries has entered into any transaction, or series of transactions, agreements, arrangements or understandings, and there are no proposed transactions as of the date of this Agreement, that would be subject to disclosure pursuant to Item 404 of Regulation S-K that has not been disclosed in the Company SEC Reports.
(m) Prior to the date of this Agreement, the termCompany has delivered or made available to Parent correct and complete copies of all comment letters from the SEC since the Lookback Date through the date of this Agreement with respect to any of the Company SEC Reports, together with all written responses of the Company thereto. There are no outstanding or unresolved comments in comment letters received from the SEC staff with respect to any of the Company SEC Reports, and, to the Company’s Knowledge, none of the Company SEC Reports is subject to ongoing SEC review or investigation.
Appears in 1 contract
SEC Filings; Financial Statements; Information Provided. (a) All Public Company has filed all registration statements, proxy statements and other statements, forms, reports and other documents required to be filed by the Public Company with the SEC since January 1, 2001 2015. All such registration statements, forms, reports and other documents (including those that the Public Company may file after the date hereof until the Closing) are referred to herein as the “Public Company SEC Reports.” Except as set forth in Section 3.4 of the Company Disclosure Schedule, the The Public Company SEC Reports (i) were or will be filed on a timely basis and basis, (ii) were at the time filed, complied, or will be prepared in compliance comply when filed, as to form in all material respects with the applicable requirements of the Securities Act, Act and the Exchange Act, as Act (and the case may be, applicable to such Company SEC Reports. None respective rules and regulations of the Company SEC Reports when filed, after giving effect to any amendments and supplements thereto filed prior to the date hereof, 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. None of the Company’s Subsidiaries has filed, or is obligated to file, any forms, reports, schedules, statements or other documents with the SEC. As used in this Section 3.4(apromulgated thereunder), the term “filed” shall be broadly construed to include any manner in which a document or information is furnished, supplied or otherwise made available to the SEC.
(b) Each of the consolidated financial statements of operations and comprehensive income (loss), consolidated balance sheets, consolidated statements of cash flows and consolidated statements of stockholders’ equity (including, in each case, any related notes and schedulesschedules thereto) contained or to be contained in the Public Company SEC Reports at the time filed (i) complied or will comply as to form in all material respects with applicable accounting requirements and the published rules and regulations of the SEC with respect thereto, (ii) were or will be prepared in accordance with generally accepted accounting principles (“GAAP”) GAAP applied on a consistent basis throughout the periods involved (except as may be indicated in the notes to such financial statements or, in the case of unaudited interim financial statements, as permitted by the SEC on Form 10-Q under the Exchange Act or for normal year-end adjustments) Act), and (iii) fairly presented or will fairly present in all material respects the consolidated financial position of the Public Company and its Subsidiaries as of the dates thereof indicated and the consolidated results of its operations and cash flows for the periods indicated, except that the unaudited interim financial statements were or are subject to normal and recurring year-end adjustments that have not been and are not expected to be material to the Companyadjustments. The consolidated unaudited balance sheet of the Public Company as of June 30December 31, 2004 2017 is referred to herein as the “Public Company Balance Sheet.”” Other than any matters that do not remain the subject of any open or outstanding inquiry, Public Company has not received written notice from the SEC or any other Governmental Entity that any of its accounting policies or practices are or may be the subject of any review, inquiry, investigation or challenge by the SEC or other Governmental Entity. Since January 1, 2015, Public Company’s independent public accounting firm has not informed Public Company that it has any material questions, challenges or disagreements regarding or pertaining to Public Company’s accounting policies or practices which are unresolved as of the date of this Agreement. Since January 1, 2015, no current officer or director of Public Company has received, or is entitled to receive, any material compensation from any entity other than Public Company or a Subsidiary of Public Company that has engaged in or is engaging in any material transaction with Public Company or any Subsidiary of Public Company.
(c) The information to be supplied by the or on behalf of Public Company for inclusion in the registration statement on Form S-4 pursuant to which the Company Series A Preferred Stock issued in the Merger and the Company Common Stock issuable upon conversion of the Company Series A Preferred Stock will be registered under the Securities Act (including any amendments or supplements, the “Registration Statement”), shall not at the time the Registration Proxy Statement is declared effective by the SEC contain any untrue statement of a material fact or omit to state any material fact required to be stated in the Registration Statement or necessary in order to make the statements in the Registration Statement not misleading. The information to be supplied by the Company for inclusion in the joint proxy statement/prospectus (the “Proxy Statement”) to be sent to the stockholders of the Public Company in connection with the meeting of the Public Company’s stockholders to consider the adoption of this Agreement and the Merger (the “Public Company Meeting”) to consider the Transactions, including the issuance of shares of Public Company Common Stock in the Transactions (the “Public Company Voting Proposal”) under the NYSE rules and the Partners amendment of Public Company’s certificate of incorporation, which shall be substantially in connection with the Fund Consent Solicitation (form attached hereto as herein defined) shall notExhibit C, on to increase the date the Proxy Statement is first mailed number of authorized shares of Public Company Common Stock from 32,000,000 to stockholders 60,000,000 and include a renouncement of the Company and the Partners, at the time corporate opportunity doctrine in accordance with Section 122(17) of the Company Meeting and at the Effective Time, contain any statement which, at such time and in light of the circumstances under which it shall be made, is false or misleading DGCL with respect to specified directors, including any material fact, or omit to state any material fact necessary in order to make directors appointed by the statements made in Stockholder (the Proxy Statement not false or misleading; or omit to state any material fact necessary to correct any statement in any earlier communication with respect to the solicitation of proxies for the “Public Company Meeting or the solicitation of consents in connection Charter Amendment” with the Fund Consent Solicitation which has become false or misleading. If at any time prior to the Effective Time any event relating to the Company, any Affiliate (as defined below) requisite stockholder approval of the CompanyPublic Company Voting Proposal and the Public Company Charter Amendment being referred to herein as the “Public Company Stockholder Approval”), or any officers or directors of any of them, should which information shall be discovered by the Company which should be set forth in an amendment to the Registration Statement or a supplement to the Proxy Statement, the Company shall promptly inform the Fund. As used in this Agreement, the termdeemed to
Appears in 1 contract
SEC Filings; Financial Statements; Information Provided. (a) All The Company has filed or furnished all registration statements, forms, reports and other documents required to be filed or furnished by the Company with the SEC since January 1, 2001 2010. All such registration statements, forms, reports and other documents (including those that the Company may file after the date hereof until the Closing) are referred to herein as the “Company SEC Reports.” Except as set forth in Section 3.4 of the Company Disclosure Schedule, the The Company SEC Reports (i) were or will be filed on a timely basis and basis, (ii) were as of their respective dates (or if amended prior to the date hereof, as of the date of such amendment), complied, and each of the Company SEC Reports filed subsequent to the date of this Agreement will be prepared in compliance comply when filed, as to form in all material respects with the applicable requirements of the Securities Act, Act and the Exchange Act, as the case may be, and the rules and regulations of the SEC thereunder applicable to such Company SEC Reports. None of , and (iii) did not at the Company SEC Reports when time they were filed, after giving effect to any amendments and supplements thereto filed prior to or will not at the date hereoftime they are filed, contained contain any untrue statement of a material fact or omitted omit to state any a material fact required to be stated therein in such Company SEC Reports or necessary in order to make the statements thereinin such Company SEC Reports, in the light of the circumstances under which they were made, not misleading. None As of the Company’s Subsidiaries date of this Agreement, there are no outstanding or unresolved comments in comment letters received from the SEC or its staff. There has filedbeen no material correspondence between the SEC and the Company since January 1, or 2010 that is obligated to file, any forms, reports, schedules, statements or other documents with not available on the SEC’s Electronic Data Gathering and Retrieval database. As used in this Section 3.4(a), No Subsidiary of the term “filed” shall be broadly construed to include any manner in which a document or information Company is furnished, supplied or otherwise made available subject to the SECreporting requirements of Section 13(a) or Section 15(d) of the Exchange Act.
(b) Each of the consolidated financial statements (including, in each case, any related notes and schedules) contained or incorporated by reference or to be contained or incorporated by reference in the Company SEC Reports at the time filed (i) complied or will comply as to form in all material respects with applicable accounting requirements and the published rules and regulations of the SEC with respect thereto, (ii) were or will be prepared in accordance with United States generally accepted accounting principles (“GAAP”) applied on a consistent basis throughout the periods involved (except as may be indicated in the notes to such financial statements or, in the case of unaudited interim financial statements, as permitted by the SEC on Form 10-Q under the Exchange Act or for normal year-end adjustments) Act), and (iii) fairly presented or will fairly present in all material respects the consolidated financial position of the Company and its Subsidiaries as of the dates thereof indicated and the consolidated results of its their operations and cash flows for the periods indicated, except that the unaudited interim financial statements were or are subject to normal and recurring year-end adjustments that have not been and adjustments, none of which are not expected to be material to the Companyhave a Company Material Adverse Effect. The unaudited consolidated audited balance sheet of the Company as of June 30December 31, 2004 2010 is referred to herein as the “Company Balance Sheet.”
(c) The information to be supplied by or on behalf of the Company for inclusion in the registration proxy statement on Form S-4 pursuant to which the Company Series A Preferred Stock issued in the Merger and the Company Common Stock issuable upon conversion of the Company Series A Preferred Stock will be registered under the Securities Act (including any amendments or supplements, the “Registration Statement”), shall not at the time the Registration Statement is declared effective by the SEC contain any untrue statement of a material fact or omit to state any material fact required to be stated in the Registration Statement or necessary in order to make the statements in the Registration Statement not misleading. The information to be supplied by the Company for inclusion in the joint proxy statement/prospectus (the “Proxy Statement”) to be sent to the stockholders of the Company in connection with the meeting of the Company’s stockholders Company Meeting (as amended or supplemented from time to consider the adoption of this Agreement time and the Merger (including any document incorporated by reference therein, the “Company MeetingProxy Statement”) and the Partners in connection with the Fund Consent Solicitation (as herein defined) shall not, on the date the Proxy Statement is first mailed to stockholders of the Company and or on any other date of filing with the PartnersSEC, or at the time of the Company Meeting and at the Effective TimeMeeting, contain any statement whichthat, at such time and in light of the circumstances under which it shall be made, is false or misleading with respect to any material fact, or omit to state any material fact necessary in order to make the statements made in the Proxy Statement therein not false or misleadingmisleading in light of the circumstances under which they were or shall be made; or or, with respect to the Proxy Statement, omit to state any material fact necessary to correct any statement in any earlier communication with respect to the solicitation of proxies for the Company Meeting or the solicitation of consents in connection with the Fund Consent Solicitation which that has become false or misleading. If at any time prior The Proxy Statement will comply as to form in all material respects with the Effective Time any event relating to the Company, any Affiliate (as defined below) requirements of the Company, or any officers or directors Exchange Act. For purposes of any of them, should be discovered by the Company which should be set forth in an amendment to the Registration Statement or a supplement to the Proxy Statement, the Company shall promptly inform the Fund. As used in this Agreement, the termterm “Affiliate”, when used with respect to any party, means any person who is an “affiliate” of that party within the meaning of Rule 405 promulgated under the Securities Act.
(d) The Company and its Subsidiaries maintain disclosure controls and procedures required by Rule 13a-15 or 15d-15 under the Exchange Act. Such disclosure controls and procedures are effective to ensure that all material information concerning the Company, including its Subsidiaries, is made known on a timely basis to the individuals responsible for the preparation of the Company’s filings with the SEC and other public disclosure documents. The Company has disclosed to the Company’s auditors and the audit committee of the Company Board (a) any significant deficiencies and material weaknesses in the design or operation of its internal controls over financial reporting (as defined in Rule 13a-15(f) under the Exchange Act) that are reasonably likely to adversely affect the Company’s ability to record, process, summarize and report financial information and (b) any fraud, to the Company’s Knowledge, whether or not material, that involves management or other employees who have a significant role in the Company’s internal control over financial reporting. The Company has made available to the Buyer all such disclosures made by management to the Company’s auditors and audit committee from January 1, 2010 to the date of this Agreement. As of the date hereof, neither the Company nor any of its Subsidiaries has outstanding “extensions of credit” to directors or executive officers of the Company within the meaning of Section 402 of the Xxxxxxxx-Xxxxx Act of 2002, as amended and including the rules and regulations promulgated thereunder (the “Xxxxxxxx-Xxxxx Act”). Since January 1, 2010, subject to any applicable grace periods, the Company and each of its officers and directors have been in compliance with (i) the applicable listing and other rules and regulations of The Nasdaq Global Select Market and (ii) the applicable provisions of the Xxxxxxxx-Xxxxx Act.
Appears in 1 contract
SEC Filings; Financial Statements; Information Provided. (a) All The Buyer has filed all registration statements, forms, reports and other documents required to be filed by the Company Buyer with the SEC since January 1, 2001 2002 and has made available to the Company copies of all registration statements, forms, reports and other documents filed by the Buyer with the SEC since such date, all of which are publicly available on the SEC’s XXXXX system. All such registration statements, forms, reports and other documents (including those that the Company Buyer may file after the date hereof until the ClosingEffective Time) are referred to herein as the “Company Buyer SEC Reports.” Except as set forth in Section 3.4 of the Company Disclosure Schedule, the Company The Buyer SEC Reports (i) were or were, and with respect to Buyer SEC Reports filed after the date of this Agreement and prior to the Effective Time will be be, filed on a timely basis and basis, (ii) were or at the time filed, were, and with respect to Buyer SEC Reports filed after the date of this Agreement and prior to the Effective Time will be, be prepared in compliance in all material respects with the applicable requirements of the Securities Act, Act and the Exchange Act, as the case may be, and the rules and regulations of the SEC thereunder applicable to such Company Buyer SEC Reports. None of , and (iii) did not at the Company time they were filed, and with respect to Buyer SEC Reports when filed, filed after giving effect to any amendments the date of this Agreement and supplements thereto filed prior to the date hereofEffective Time will not at the time they are filed, contained contain any untrue statement of a material fact or omitted omit to state any a material fact required to be stated therein in such Buyer SEC Reports or necessary in order to make the statements thereinin such Buyer SEC Reports, in the light of the circumstances under which they were made, not misleading. None No Subsidiary of the Company’s Subsidiaries has filed, or Buyer is obligated to file, any forms, reports, schedules, statements or other documents with the SEC. As used in this Section 3.4(a), the term “filed” shall be broadly construed to include any manner in which a document or information is furnished, supplied or otherwise made available subject to the SECreporting requirements of Section 13(a) or Section 15(d) of the Exchange Act. There are no off-balance sheet structures or transactions with respect to the Buyer or any of its Subsidiaries that would be required to be reported or set forth in the Buyer SEC Reports.
(b) Each of the consolidated financial statements (including, in each case, any related notes and schedules) contained or to be contained incorporated in the Company Buyer SEC Reports at the time filed (i) complied or complied, and with respect to Buyer SEC Reports filed after the date of this Agreement and prior to the Effective Time will comply comply, as to form in all material respects with applicable accounting requirements and the published rules and regulations of the SEC with respect thereto, (ii) were or were, and with respect to Buyer SEC Reports filed after the date of this Agreement and prior to the Effective Time will be be, prepared in accordance with generally accepted accounting principles (“GAAP”) GAAP applied on a consistent basis throughout the periods involved (except as may be indicated in the notes to such financial statements or, in the case of unaudited statements, as permitted by the SEC on Form 10-Q under the Exchange Act or for normal year-end adjustmentsAct) and (iii) fairly presented or presented, and with respect to Buyer SEC Reports filed after the date of this Agreement and prior to the Effective Time will fairly present present, the consolidated financial position of the Company Buyer and its Subsidiaries as of the dates thereof and the consolidated results of its operations and cash flows for the periods indicated, consistent with the books and records of the Buyer and its Subsidiaries, except that the unaudited interim financial statements were or are subject to normal and recurring year-end adjustments that have which were not been and or are not expected to be material to the Companyin amount. The consolidated, unaudited balance sheet of the Company Buyer as of June 30December 31, 2004 is referred to herein as the “Company Buyer Balance Sheet.”
(c) The information to be in the Registration Statement or in any Regulation M-A Filing (except, in each case, for information supplied by or on behalf of the Company for inclusion or incorporation by reference in the registration statement on Form S-4 pursuant Registration Statement or Regulation M-A Filing, as to which the Company Series A Preferred Stock issued in the Merger Buyer makes no representation and the Company Common Stock issuable upon conversion which shall not constitute part of the Company Series A Preferred Stock will be registered under the Securities Act (including any amendments or supplements, the “Registration Statement”Buyer SEC Reports for purposes of this Agreement), shall not at the time the Registration Statement or any Regulation M-A Filing is filed with the SEC, at any time the Registration Statement is amended or supplemented, or at the time the Registration Statement is declared effective by the SEC (as applicable), contain any untrue statement of a material fact or omit to state any material fact required to be stated in the Registration Statement therein or necessary in order to make the statements in the Registration Statement therein not misleading. The information to be supplied by or on behalf of the Company Buyer for inclusion in the joint proxy statement/prospectus (the “Joint Proxy Statement”) /Prospectus (which shall be deemed to be sent include all information about or relating to the stockholders of Buyer, the Company in connection with the meeting of the Company’s stockholders to consider the adoption of this Agreement Buyer Voting Proposal and the Merger (the “Company Buyer Stockholders Meeting”) and the Partners in connection with the Fund Consent Solicitation (as herein defined) shall not, on the date the Joint Proxy Statement Statement/Prospectus is first mailed to stockholders of the Company and or the PartnersBuyer, or at the time of the Company Shareholders Meeting and or the Buyer Stockholders Meeting or at the Effective Time, contain any statement which, at such time and in light of the circumstances under which it shall be made, is false or misleading with respect to any material fact, or omit to state any material fact necessary in order to make the statements made in the Joint Proxy Statement Statement/Prospectus not false or misleading; or omit to state any material fact necessary to correct any statement in any earlier communication with respect to the solicitation of proxies for the Company Shareholders Meeting or the solicitation of consents in connection with the Fund Consent Solicitation which Buyer Stockholders Meeting that has become false or misleading. If at any time prior to the Effective Time any fact or event relating to the Company, any Affiliate (as defined below) of the Company, Buyer or any officers or directors of any of them, should be discovered by the Company which its Affiliates that should be set forth in an amendment to the Registration Statement or a supplement to the Joint Proxy Statement/Prospectus should be discovered by the Buyer or should occur, the Company Buyer shall promptly inform the FundCompany of such fact or event.
(d) The Buyer maintains disclosure controls and procedures required by Rule 13a-15(e) or 15d-15(e) under the Exchange Act. As used Such disclosure controls and procedures are effective to provide reasonable assurance that information the Buyer is required to disclose in this Agreementreports that it files or submits under the Exchange Act is recorded, processed, summarized and reported within the termtime periods specified in SEC rules and forms, and that such information is accumulated and communicated to the Buyer’s management as appropriate, to allow timely decisions regarding required disclosure. The Buyer has disclosed, based on its most recent evaluation of internal control over financial reporting prior to the date hereof, to the Buyer’s auditors and the Audit Committee of the Buyer’s Board of Directors (A) any significant deficiencies or material weaknesses in the design or operation of internal control over financial reporting which are likely to adversely affect in any material respect the Buyer’s ability to record, process, summarize and report financial data and (B) any fraud, whether or not material, that involves management or other employees of the Buyer or its Subsidiaries who have a significant role in the Buyer’s internal control over financial reporting. Since January 1, 2002, neither the Buyer nor any of its Subsidiaries nor, to the knowledge of the Buyer, any director, officer, employee, auditor, accountant or representative of the Buyer or any of its Subsidiaries has received or otherwise had or obtained knowledge of any material complaint, allegation, assertion or claim, whether written or oral, regarding the accounting or auditing practices, procedures, methodologies or methods of the Buyer or any of its Subsidiaries or their respective internal accounting controls including any material complaint, allegation, assertion or claim that the Buyer or any of its Subsidiaries has engaged in questionable accounting or auditing practices. No attorney representing the Buyer or any of its Subsidiaries, whether or not employed by the Buyer or any of its Subsidiaries, has reported evidence of a violation of securities laws, breach of fiduciary duty or similar violation by the Buyer or any of its officers, directors, employees or agents to the Buyer’s Board of Directors or any committee thereof or to any director or officer of the Buyer.
(e) The Buyer is in compliance in all material respects with the applicable provisions of the Xxxxxxxx-Xxxxx Act and with the applicable listing and other rules and regulations of The Nasdaq National Market and has not since January 1, 2002 received any notice from The Nasdaq National Market asserting any non-compliance with such rules and regulations. Each required form, report and document containing financial statements that the Buyer has filed with or submitted to the SEC since August 29, 2002 was accompanied by the certifications required to be filed or submitted by the Buyer’s principal executive officer and principal financial officer pursuant to the Xxxxxxxx-Xxxxx Act and, at the time of filing or submission of each such certification, such certification was true and accurate and complied with the Xxxxxxxx-Xxxxx Act and the rules and regulations promulgated thereunder. Except as permitted by the Exchange Act, including, without limitation, Sections 13(k)(2) and (3), since the enactment of the Xxxxxxxx-Xxxxx Act, neither the Buyer nor any of its affiliates has made, arranged or modified (in any material way) personal loans to any executive officer or director of the Buyer.
Appears in 1 contract
SEC Filings; Financial Statements; Information Provided. (a) All The Company has filed all registration statements, forms, reports and other documents required to be filed by the Company with the SEC since January July 1, 2001 2001, and has made available to the Buyer copies of all registration statements, forms, reports and other documents filed by the Company with the SEC since such date, all of which are publicly available on the SEC’s XXXXX system. All such registration statements, forms, reports and other documents (including those that the Company may file files after the date hereof until the ClosingEffective Time) are referred to herein as the “Company SEC Reports.” Except as set forth in Section 3.4 of the Company Disclosure Schedule, the The Company SEC Reports (i) were or were, and with respect to Company SEC Reports filed after the date of this Agreement and prior to the Effective Time will be be, filed on a timely basis and basis, (ii) were or at the time filed, were, and with respect to Company SEC Reports filed after the date of this Agreement and prior to the Effective Time will be be, prepared in compliance in all material respects with the applicable requirements of the Securities Act, Act and the Exchange Act, as the case may be, and the rules and regulations of the SEC thereunder applicable to such Company SEC Reports. None of , and (iii) did not at the time they were filed, and with respect to Company SEC Reports when filed, filed after giving effect to any amendments the date of this Agreement and supplements thereto filed prior to the date hereofEffective Time will not at the time they are filed, contained contain any untrue statement of a material fact or omitted omit to state any a material fact required to be stated therein in such Company SEC Reports or necessary in order to make the statements thereinin such Company SEC Reports, in the light of the circumstances under which they were made, not misleading. None No Subsidiary of the Company’s Subsidiaries has filed, or Company is obligated to file, any forms, reports, schedules, statements or other documents with the SEC. As used in this Section 3.4(a), the term “filed” shall be broadly construed to include any manner in which a document or information is furnished, supplied or otherwise made available subject to the SECreporting requirements of Section 13(a) or Section 15(d) of the Exchange Act. There are no off-balance sheet structures or transactions with respect to the Company or any of its Subsidiaries that would be required to be reported or set forth in the Company SEC Reports.
(b) Each of the consolidated financial statements (including, in each case, any related notes and schedules) contained or to be contained incorporated by reference in the Company SEC Reports at the time filed (i) complied or complied, and with respect to Company SEC Reports filed after the date of this Agreement and prior to the Effective Time will comply comply, as to form in all material respects with applicable accounting requirements and the published rules and regulations of the SEC with respect thereto, (ii) were or were, and with respect to Company SEC Reports filed after the date of this Agreement and prior to the Effective Time will be be, prepared in accordance with United States generally accepted accounting principles (“GAAP”) applied on a consistent basis throughout the periods involved (except as may be indicated in the notes to such financial statements or, in the case of unaudited interim financial statements, as permitted by the SEC on Form 10-Q under the Exchange Act or for normal year-end adjustmentsAct) and (iii) fairly presented or presented, and with respect to Company SEC Reports filed after the date of this Agreement and prior to the Effective Time will fairly present present, the consolidated financial position of the Company and its Subsidiaries as of the dates thereof indicated and the consolidated results of its operations and cash flows for the periods indicated, consistent with the books and records of the Company and its Subsidiaries, except that the unaudited interim financial statements were or are subject to normal and recurring year-end adjustments that have were not been and or are not expected to be material to the Companyin amount. The consolidated, unaudited balance sheet of the Company as of June 30December 31, 2004 is referred to herein as the “Company Balance Sheet.”
(c) Section 3.4(c) of the Company Disclosure Schedule contains complete and correct copies of the unaudited financial statements of Pinnacle Systems GmbH, Braunschweig, as of June 30, 2004, the audited financial statements of PS Miro Holdings Inc. & Co. KG, Munich, as of June 30, 2004 (collectively, the “German Financial Statements”). The German Financial Statements (i) have been prepared in accordance with German Generally Accepted Accounting Principles (Grundsätze ordnungsgemäßer Buchführung und Bilanzierung), including without limitation having regard to the principles of accounting and valuation continuity and in compliance with the pertinent commercial law provisions, applied on a consistent basis throughout the periods involved, (ii) fairly present the asset, financial and earnings situation of Pinnacle Systems GmbH, Braunschweig, and PS Miro Holdings Inc. & Co. KG, Munich, as of the dates indicated, consistent with the books and records of Pinnacle Systems GmbH, Braunschweig, and PS Miro Holdings Inc. & Co. KG, Munich, (iii) observe the principle of the minimum valuation (Niederstwertprinzip) and (iv) accurately and completely reflect all liabilities and contingent liabilities (including but not limited to taxes and accruals for severance payments under Articles 89b of the German Commercial Code and/or the Council Directive 86/653/EEC of December 18, 1986 on the coordination of the laws of the Member States relating to self-employed commercial agents) of Pinnacle Systems GmbH, Braunschweig, and PS Miro Holdings Inc. & Co. KG, Munich.
(d) The information to be supplied by or on behalf of the Company for inclusion or incorporation by reference in the registration statement on Form S-4 to be filed by the Buyer pursuant to which the Company Series A Preferred shares of Buyer Common Stock issued in connection with the Merger and the Company Common Stock issuable upon conversion of the Company Series A Preferred Stock will shall be registered under the Securities Act (including any amendments or supplements, the “Registration Statement”), or to be included or supplied by or on behalf of the Company for inclusion in any filing pursuant to Rule 165 and Rule 425 under the Securities Act or Rule 14a-12 under the Exchange Act (each a “Regulation M-A Filing”), shall not at the time the Registration Statement or any Regulation M-A Filing is filed with the SEC, at any time the Registration Statement is amended or supplemented, or at the time the Registration Statement is declared effective by the SEC (as applicable), contain any untrue statement of a material fact or omit to state any material fact required to be stated in the Registration Statement therein or necessary in order to make the statements in the Registration Statement therein not misleading. The information to be supplied by or on behalf of the Company for inclusion in the joint proxy statement/prospectus (the “Proxy Statement”) to be sent to the stockholders shareholders and stockholders, respectively, of the Company and the Buyer (the “Joint Proxy Statement/Prospectus”) in connection with (i) the meeting of the Company’s stockholders shareholders to consider the adoption of this Agreement and the Merger Company Voting Proposal (the “Company Shareholders Meeting”) (which shall be deemed to include all information about or relating to the Company, the Company Voting Proposal and the Partners in connection with Company Shareholders Meeting), and (ii) the Fund Consent Solicitation meeting of the Buyer’s stockholders (as herein definedthe “Buyer Stockholders Meeting”) shall notto consider the issuance of shares of Buyer Common Stock and the amendment to the Buyer’s Certificate of Incorporation (the “Buyer Voting Proposals”), on the date the Joint Proxy Statement Statement/Prospectus is first mailed to stockholders shareholders and stockholders, respectively, of the Company and or the PartnersBuyer, or at the time of the Company Shareholders Meeting and or the Buyer Stockholders Meeting or at the Effective Time, contain any statement which, at such time and in light of the circumstances under which it shall be made, is false or misleading with respect to any material fact, or omit to state any material fact necessary in order to make the statements made in the Joint Proxy Statement Statement/Prospectus not false or misleading; or omit to state any material fact necessary to correct any statement in any earlier communication with respect to the solicitation of proxies for the Company Shareholders Meeting or the solicitation of consents in connection with the Fund Consent Solicitation which Buyer Stockholders Meeting that has become false or misleading. If at any time prior to the Effective Time any fact or event relating to the Company, any Affiliate (as defined below) of the Company, Company or any officers or directors of any of them, should be discovered by the Company which its Affiliates that should be set forth in an amendment to the Registration Statement or a supplement to the Joint Proxy Statement/Prospectus should be discovered by the Company or should occur, the Company shall promptly inform the FundBuyer of such fact or event.
(e) The Company maintains disclosure controls and procedures required by Rule 13a-15(e) or 15d-15(e) under the Exchange Act. As used Such disclosure controls and procedures are effective to provide reasonable assurance that information the Company is required to disclose in this Agreementreports that it files or submits under the Exchange Act is recorded, processed, summarized and reported within the termtime periods specified in SEC rules and forms, and that such information is accumulated and communicated to the Company’s management as appropriate, to allow timely decisions regarding required disclosure. The Company has disclosed, based on its most recent evaluation of internal control over financial reporting prior to the date hereof, to the Company’s auditors and the Audit Committee of the Company’s Board of Directors (A) any significant deficiencies or material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect in any material respect the Company’s ability to record, process, summarize and report financial data and (B) any fraud, whether or not material, that involves management or other employees of the Company or its Subsidiaries who have a significant role in the Company’s internal control over financial reporting. Since January 1, 2002, neither the Company nor any of its Subsidiaries nor, to the knowledge of the Company, any director, officer, employee, auditor, accountant or representative of the Company or any of its Subsidiaries has received or otherwise had or obtained knowledge of any material complaint, allegation, assertion or claim, whether written or oral, regarding the accounting or auditing practices, procedures, methodologies or methods of the Company or any of its Subsidiaries or their respective internal accounting controls including any material complaint, allegation, assertion or claim that the Company or any of its Subsidiaries has engaged in questionable accounting or auditing practices. No attorney representing the Company or any of its Subsidiaries, whether or not employed by the Company or any of its Subsidiaries, has reported evidence of a violation of securities laws, breach of fiduciary duty or similar violation by the Company or any of its officers, directors, employees or agents to the Company’s Board of Directors or any committee thereof or to any director or officer of the Company.
(f) The Company is in compliance in all material respects with the applicable provisions of the Xxxxxxxx-Xxxxx Act of 2002 (the “Xxxxxxxx-Xxxxx Act”) and with the applicable listing and other rules and regulations of The Nasdaq National Market and has not since January 1, 2002 received any notice from The Nasdaq National Market asserting any non-compliance with such rules and regulations. Each required form, report and document containing financial statements that the Company has filed with or submitted to the SEC since August 29, 2002 was accompanied by the certifications required to be filed or submitted by the Company’s principal executive officer and principal financial officer pursuant to the Xxxxxxxx-Xxxxx Act and, at the time of filing or submission of each such certification, such certification was true and accurate and complied with the Xxxxxxxx-Xxxxx Act and the rules and regulations promulgated thereunder. Except as permitted by the Exchange Act, including, without limitation, Sections 13(k)(2) and (3), since the enactment of the Xxxxxxxx-Xxxxx Act, neither the Company nor any of its affiliates has made, arranged or modified (in any material way) personal loans to any executive officer or director of the Company.
Appears in 1 contract
SEC Filings; Financial Statements; Information Provided. (a) All Parent has filed all registration statements, forms, reports and other documents required to be filed by the Company Parent with the SEC since January 1, 2001 2003. All such registration statements, forms, reports and other documents (including those that the Company Parent may file after the date hereof until the Closing) are referred to herein as the “Company "Parent SEC Reports.” Except as set forth in Section 3.4 of the Company Disclosure Schedule, the Company " The Parent SEC Reports (i) were or will be filed on a timely basis and basis, (ii) were at the time filed, complied, or will be prepared in compliance comply when filed, as to form in all material respects with the applicable requirements of the Securities Act, Act and the Exchange Act, as the case may be, and the Regulations of the SEC thereunder applicable to such Company Parent SEC Reports. None of , and (iii) did not or will not at the Company SEC Reports when filed, after giving effect to any amendments and supplements thereto time they were or are filed prior to the date hereof, contained contain any untrue statement of a material fact or omitted omit to state any a material fact required to be stated therein in such Parent SEC Reports or necessary in order to make the statements thereinin such Parent SEC Reports, in the light of the circumstances under which they were made, not misleading. None No Subsidiary of Parent is subject to the reporting requirements of Section 13(a) or Section 15(d) of the Company’s Subsidiaries has filed, or is obligated to file, any forms, reports, schedules, statements or other documents with the SEC. As used in this Section 3.4(a), the term “filed” shall be broadly construed to include any manner in which a document or information is furnished, supplied or otherwise made available to the SECExchange Act.
(b) The certificates of the Chief Executive Officer and Chief Financial Officer of Parent required by Rules 13a-14 and 15d-14 of the Exchange Act or 18 U.S.C. Section 1350 (Section 906 of SOX) with respect to the Parent SEC Reports, as applicable, were true and correct in all material respects as of their respective dates.
(c) Each of the consolidated financial statements balance sheets of Parent included in or incorporated by reference into the Parent SEC Reports (including, in each case, any related notes and schedulesnotes) contained or to be contained in the Company SEC Reports (i) complied or will comply as to form fairly presents in all material respects with applicable accounting requirements the consolidated financial position of Parent and the published rules its Subsidiaries as of its date and regulations each of the consolidated statements of income, cash flow and stockholders' equity of Parent included in or incorporated by reference in the Parent SEC with respect theretoReports (including, (iiin each case, any related notes) were or will be prepared fairly presents in accordance with generally accepted accounting principles (“GAAP”) applied on a consistent basis throughout all material respects the consolidated results of operations, cash flows and stockholders' equity of Parent and its Subsidiaries for the periods involved set forth therein (except as may be indicated in the notes to such financial statements orsubject, in the case of unaudited statements, as permitted by the SEC on Form 10-Q under the Exchange Act or for to normal year-end adjustmentsaudit adjustments which in the aggregate were not or will not be material in amount or effect), in each case in accordance with GAAP consistently applied during the periods involved, except as may be noted therein.
(d) None of Parent or any of its Subsidiaries has or is subject to any material Liabilities of any kind, other than those (i) fully reflected in, reserved against or otherwise described in the audited consolidated balance sheets of Parent and its Subsidiaries as of December 31, 2004 or the notes thereto, or (ii) incurred in the ordinary course of business consistent with past practice or pursuant to the transactions contemplated by this Agreement, or (iii) fairly presented or will fairly present the financial position set forth on Section 7.6(d) of the Company Parent Disclosure Schedule or as of the dates thereof and the results of its operations and cash flows for the periods indicated, except that the unaudited interim financial statements were or are subject to normal and recurring year-end adjustments that have not been and are not expected to be material otherwise disclosed in writing to the Company. The unaudited balance sheet .
(e) None of the Company as of June 30, 2004 is referred to herein as the “Company Balance Sheet.”
(c) The information to be supplied by or on behalf of Parent or any of the Company Merger Subs for inclusion or incorporation by reference in the registration statement on Form S-4 pursuant to which the Company Series A Preferred Stock issued in the Merger and the Company Common Stock issuable upon conversion of the Company Series A Preferred Stock will be registered under the Securities Act (including any amendments or supplements, the “Registration Statement”), shall not at the time the Registration Statement is declared effective by the SEC contain any untrue statement of a material fact or omit to state any material fact required to be stated in the Registration Statement or necessary in order to make the statements in the Registration Statement not misleading. The information to be supplied by the Company for inclusion in the joint proxy statement/prospectus (the “Proxy Statement”) Section 262 Notice to be sent to the stockholders of Stockholders or in the Company in connection with the meeting of the Company’s stockholders to consider the adoption of this Agreement and the Merger (the “Company Meeting”) and the Partners in connection with the Fund Consent Solicitation (as herein defined) shall notRegistration Statement will, on the date the Proxy Statement Section 262 Notice is first mailed to stockholders of the Company and Stockholders, or on the Partnersdate the Registration Statement is filed with the SEC, at any time it is amended or supplemented or at the time of it becomes effective under the Company Meeting and at the Effective TimeSecurities Act, contain any statement which, at such time and in light of the circumstances under which it shall be made, is false or misleading with respect to any material fact, or omit to state any material fact necessary in order to make the statements made in the Proxy Section 262 Notice or the Registration Statement not false or misleading; or omit to state any material fact necessary to correct any statement in any earlier communication with respect to the solicitation of proxies for the Company Meeting or the solicitation of consents in connection with the Fund Consent Solicitation which has become false or misleading. If at any time prior to the First Effective Time Time, any fact or event relating to the Company, any Affiliate (as defined below) of the Company, Parent or any officers or directors of any of them, should be discovered by the Company its Affiliates which should be set forth in an amendment to the Registration Statement or a supplement to the Proxy StatementSection 262 Notice or the Registration Statement should be discovered by Parent or should occur, the Company shall Parent shall, promptly after becoming aware thereof, inform the FundSelling Companies of such fact or event. As used Notwithstanding the foregoing, no representation is made by Parent or Merger Subs with respect to the information that has been or will be supplied by the Selling Companies, their Subsidiaries or their respective auditors, attorneys, financial advisors or other consultants or advisers for inclusion in this Agreement, the termSection 262 Notice or the Registration Statement.
Appears in 1 contract
SEC Filings; Financial Statements; Information Provided. (a) All TranS1 has filed all registration statements, forms, reports reports, certifications and other documents required to be filed by the Company TranS1 with the SEC since January 1, 2001 2010 and has made available to Baxano copies of all registration statements, forms, reports, certifications and other documents filed by TranS1 with the SEC since January 1, 2010, including all certifications and statements required by (i) Rule 13a-14 or 15d-14 under the Exchange Act or (ii) 18 U.S.C. §1350 (Section 906 of the Sxxxxxxx-Xxxxx Act of 2002 (the “Sarbanes Act”)). All such registration statements, forms, reports, certifications and other documents (including those that the Company TranS1 may file after the date hereof until the Closing) are referred to herein as the “Company TranS1 SEC ReportsDocuments.” Except as set forth in Section 3.4 All TranS1 SEC Documents are publicly available on the SEC’s EXXXX system. TranS1 has made available to Baxano copies of all comment letters received by TranS1 from the staff of the Company Disclosure ScheduleSEC since January 1, the Company 2010 and all responses to such comment letters by or on behalf of TranS1. All TranS1 SEC Reports Documents (iA) were or will be filed or deemed filed on a timely basis and basis, (iiB) at the time filed, were or will be prepared in compliance in all material respects with the applicable requirements of the Securities Act, Act and the Exchange Act, as the case may be, and the rules and regulations of the SEC thereunder applicable to such Company TranS1 SEC Reports. None of Documents and (C) did not or will not at the Company SEC Reports when filed, after giving effect to any amendments and supplements thereto time they were or are filed prior to the date hereof, contained contain any untrue statement of a material fact or omitted omit to state any a material fact required to be stated therein in such TranS1 SEC Documents or necessary in order to make the statements thereinin such TranS1 SEC Documents, in the light of the circumstances under which they were made, not misleading. None No Subsidiary of TranS1 is subject to the reporting requirements of Section 13 or Section 15(d) of the Company’s Subsidiaries has filed, or is obligated to file, any forms, reports, schedules, statements or other documents with the SEC. As used in this Section 3.4(a), the term “filed” shall be broadly construed to include any manner in which a document or information is furnished, supplied or otherwise made available to the SECExchange Act.
(b) Each of the consolidated financial statements (including, in each case, any related notes and schedules) contained or to be contained in the Company TranS1 SEC Reports at the time filed (i) complied or will comply as to form in all material respects with applicable accounting requirements and the published rules and regulations of the SEC with respect theretothereto (including, without limitation, Regulation S-X), (ii) were or will be prepared in accordance with generally accepted accounting principles (“GAAP”) GAAP applied on a consistent basis throughout the periods involved covered thereby (except as may be indicated in the notes to such financial statements or, in the case of unaudited interim financial statements, as permitted by the SEC on Form 10-Q under the Exchange Act or for normal year-end adjustmentsAct) and (iii) fairly presented or will fairly present the consolidated financial position of the Company TranS1 and its Subsidiaries as of the dates thereof and the consolidated results of its operations and cash flows for the periods indicated, consistent with the books and records of TranS1 and its Subsidiaries, except that the unaudited interim financial statements were or are subject to normal and recurring year-end adjustments that have which were not been and are or will not expected to be material to the Companyin amount or effect. The unaudited TranS1’s audited consolidated balance sheet of the Company TranS1 as of June 30December 31, 2004 2011 is referred to herein as the “Company TranS1 Balance Sheet.”
(c) The information PricewaterhouseCoopers LLP, TranS1’s current auditors, is and has been at all times since its engagement by TranS1 (i) “independent” with respect to be supplied by TranS1 within the Company for inclusion meaning of Regulation S-X and (ii) in compliance with subsections (g) through (l) of Section 10A of the registration statement on Form S-4 pursuant Exchange Act (to which the Company Series A Preferred Stock issued in the Merger extent applicable) and the Company Common Stock issuable upon conversion related rules of the SEC and the Public Company Series A Preferred Stock will be registered under the Securities Act Accounting Oversight Board.
(including any amendments d) There is no transaction, arrangement or supplements, the “Registration Statement”), shall not at the time the Registration Statement other relationship between TranS1 and an unconsolidated or other off-balance sheet entity that is declared effective by the SEC contain any untrue statement of a material fact or omit to state any material fact required to be stated disclosed by TranS1 in the Registration Statement its Exchange Act filings and is not so disclosed or necessary that otherwise would be reasonably likely to have a TranS1 Material Adverse Effect. There are no such transactions, arrangements or other relationships with TranS1 that may create contingencies or liabilities that are not otherwise disclosed by TranS1 in order to make the statements in the Registration Statement not misleading. The information to be supplied by the Company for inclusion in the joint proxy statement/prospectus (the “Proxy Statement”) to be sent to the stockholders of the Company in connection with the meeting of the Company’s stockholders to consider the adoption of this Agreement and the Merger (the “Company Meeting”) and the Partners in connection with the Fund Consent Solicitation (as herein defined) shall not, on the date the Proxy Statement is first mailed to stockholders of the Company and the Partners, at the time of the Company Meeting and at the Effective Time, contain any statement which, at such time and in light of the circumstances under which it shall be made, is false or misleading with respect to any material fact, or omit to state any material fact necessary in order to make the statements made in the Proxy Statement not false or misleading; or omit to state any material fact necessary to correct any statement in any earlier communication with respect to the solicitation of proxies for the Company Meeting or the solicitation of consents in connection with the Fund Consent Solicitation which has become false or misleading. If at any time prior to the Effective Time any event relating to the Company, any Affiliate (as defined below) of the Company, or any officers or directors of any of them, should be discovered by the Company which should be set forth in an amendment to the Registration Statement or a supplement to the Proxy Statement, the Company shall promptly inform the Fund. As used in this Agreement, the termits Exchange Act filings.
Appears in 1 contract
Samples: Merger Agreement (Trans1 Inc)
SEC Filings; Financial Statements; Information Provided. (a) All The Company has filed all registration statements, forms, reports and other documents required to be filed by the Company with the SEC since January 1, 2001 2002. All such registration statements, forms, reports and other documents (including those that the Company may file after the date hereof until the Closing) are referred to herein as the “"Company SEC Reports.” Except as set forth in Section 3.4 of the Company Disclosure Schedule, the " The Company SEC Reports (i) were or will be filed on a timely basis and basis, (ii) were at the time filed, complied, or will be prepared in compliance comply when filed, as to form in all material respects with the applicable requirements of the Securities Act, Act and the Exchange Act, as the case may be, and the rules and regulations of the SEC thereunder applicable to such Company SEC Reports. None of , and (iii) did not or will not at the Company SEC Reports when filed, after giving effect to any amendments and supplements thereto time they were or are filed prior to the date hereof, contained contain any untrue statement of a material fact or omitted omit to state any a material fact required to be stated therein in such Company SEC Reports or necessary in order to make the statements thereinin such Company SEC Reports, in the light of the circumstances under which they were made, not misleading. None No Subsidiary of the Company’s Subsidiaries has filed, or Company is obligated to file, any forms, reports, schedules, statements or other documents with the SEC. As used in this Section 3.4(a), the term “filed” shall be broadly construed to include any manner in which a document or information is furnished, supplied or otherwise made available subject to the SECreporting requirements of Section 13(a) or Section 15(d) of the Exchange Act. There are no off-balance sheet structures or transactions with respect to the Company or any of its Subsidiaries that would be required to be reported or set forth in the Company SEC Reports.
(b) Each of the consolidated financial statements (including, in each case, any related notes and schedules) contained or to be contained in or incorporated by reference in the Company SEC Reports at the time filed (i) complied or will comply as to form in all material respects with applicable accounting requirements and the published rules and regulations of the SEC with respect thereto, thereto and (ii) were or will be prepared in accordance with United States generally accepted accounting principles (“"GAAP”") applied on a consistent basis throughout the periods involved (except as may be indicated in the notes to such financial statements or, in the case of unaudited interim financial statements, as permitted by the SEC on Form 10-Q under the Exchange Act Act). Each of the consolidated balance sheets (including, in each case, any related notes and schedules) contained or for normal year-end adjustments) to be contained or incorporated by reference in the Company SEC Reports at the time filed fairly presented or will fairly present in all material respects the consolidated financial position of the Company and its Subsidiaries as of the dates indicated and each of the consolidated statements of income and of changes in financial position contained or to be contained or incorporated by reference in the Company SEC Reports (iiiincluding, in each case, any related notes and schedules) fairly presented or will fairly present in all material respects the consolidated results of operations, retained earnings and changes in financial position position, as the case may be, of the Company as of the dates thereof and the results of its operations and cash flows Subsidiaries for the periods indicatedset forth therein, except that the unaudited interim financial statements were or are subject to normal and recurring year-end adjustments that have not been and are not expected to be material to the Companyadjustments. The consolidated, unaudited balance sheet of the Company as of June 30, 2004 is referred to herein as the “"Company Balance Sheet.”"
(c) The information to be supplied by or on behalf of the Company for inclusion in the registration proxy statement on Form S-4 pursuant to which the Company Series A Preferred Stock issued in the Merger and the Company Common Stock issuable upon conversion of the Company Series A Preferred Stock will be registered under the Securities Act (including any amendments or supplements, the “Registration Statement”), shall not at the time the Registration Statement is declared effective by the SEC contain any untrue statement of a material fact or omit to state any material fact required to be stated in the Registration Statement or necessary in order to make the statements in the Registration Statement not misleading. The information to be supplied by the Company for inclusion in the joint proxy statement/prospectus (the “Proxy Statement”) to be sent to the stockholders of the Company (the "Proxy Statement") in connection with the meeting of the Company’s stockholders to consider the adoption of this Agreement and the Merger (the “Company Meeting”) and the Partners in connection with the Fund Consent Solicitation (as herein defined) Meeting shall not, on the date the Proxy Statement is first mailed to stockholders of the Company and the Partners, or at the time of the Company Meeting and at the Effective TimeMeeting, contain any statement which, at such time and in light of the circumstances under which it shall be made, is false or misleading with respect to any material fact, or omit to state any material fact necessary in order to make the statements made in the Proxy Statement not false or misleadingmisleading in light of the circumstances under which they were or shall be made; or omit to state any material fact necessary to correct any statement in any earlier communication with respect to the solicitation of proxies for the Company Meeting or the solicitation of consents in connection with the Fund Consent Solicitation which has become false or misleading. If at any time prior to the Effective Time Company Meeting any fact or event relating to the Company, any Affiliate (as defined below) of the Company, Company or any officers or directors of any of them, its Affiliates which should be set forth in a supplement to the Proxy Statement should be discovered by the Company which or should be set forth in an amendment to the Registration Statement or a supplement to the Proxy Statementoccur, the Company shall shall, promptly after becoming aware thereof, inform the FundBuyer of such fact or event.
(d) The Company maintains disclosure controls and procedures required by Rule 13a-15 or 15d-15 under the Exchange Act. As used Such disclosure controls and procedures are effective to ensure that all material information concerning the Company is made known on a timely basis to the individuals responsible for the preparation of the Company's filings with the SEC and other public disclosure documents. The Company has disclosed, based on its most recent evaluation prior to the date hereof, to the Company's auditors and the audit committee of the Company Board (A) any significant deficiencies in this Agreementthe design or operation of internal controls which could adversely affect in any material respect the Company's ability to record, process, summarize and report financial data and has identified for the termCompany's auditors any material weaknesses in internal controls and (B) any fraud, whether or not material, that involves management or other employees who have a significant role in the Company's internal controls. The Company has made available to Buyer a summary of any such disclosure made by management to the Company's auditors and audit committee since January 1, 2003. Since January 1, 2003, no former or current employee of the Company or any of its Subsidiaries has alleged to any of the senior officers of the Company that the Company or any of its Subsidiaries has engaged in questionable accounting or auditing practices. No attorney representing the Company or any of its Subsidiaries, whether or not employed by the Company or any of its Subsidiaries, has reported evidence of a violation of securities laws, breach of fiduciary duty or similar violation by the Company or any of its officers, directors, employees or agents to the Company Board or any committee thereof or to any director or officer of the Company.
(e) The Company is in compliance with the applicable listing and other rules and regulations of The Nasdaq National Market and has not since January 1, 2002 received any notice from The Nasdaq National Market asserting any non-compliance with such rules and regulations.
(f) The Company is in compliance in all material respects with the applicable provisions of the Xxxxxxxx-Xxxxx Act of 2002.
Appears in 1 contract
Samples: Merger Agreement (Netegrity Inc)
SEC Filings; Financial Statements; Information Provided. (a) All The Buyer has filed or furnished (as applicable) all registration statements, forms, reports reports, certifications and other documents required to be filed with or furnished to (as applicable) the SEC by the Company with the SEC Buyer since January 1, 2001 2010. All such registration statements, forms, reports, certifications and other documents Table of Contents required to be filed or furnished by the Buyer since January 1, 2010 (including those that the Company Buyer may file after the date hereof until the Closing) are referred to herein as the “Company Buyer SEC ReportsDocuments.” Except as set forth in Section 3.4 The Buyer has made available to the Company copies of all comment letters received by the Buyer from the staff of the Company Disclosure Schedule, SEC prior to the Company date hereof with respect to all Buyer SEC Reports Documents and all responses to such comment letters by or on behalf of the Buyer filed by the Buyer with the SEC prior to the date hereof. The Buyer SEC Documents (i) were or will be filed or furnished on a timely basis and basis, (ii) were at the time filed or furnished, complied, or will be prepared in compliance comply, as to form in all material respects with the applicable requirements of the Securities Act, Act and the Exchange Act, as the case may be, and the rules and regulations of the SEC thereunder applicable to such Company Buyer SEC Reports. None of Documents, and (iii) did not or will not at the Company SEC Reports when filed, after giving effect to any amendments and supplements thereto time they were or are filed prior to the date hereof, contained or furnished contain any untrue statement of a material fact or omitted omit to state any a material fact required to be stated therein in such Buyer SEC Documents or necessary in order to make the statements thereinin such Buyer SEC Documents, in the light of the circumstances under which they were made, not misleading. None No Subsidiary of the Company’s Subsidiaries has filed, or Buyer is obligated to file, any forms, reports, schedules, statements or other documents with the SEC. As used in this Section 3.4(a), the term “filed” shall be broadly construed to include any manner in which a document or information is furnished, supplied or otherwise made available subject to the SECreporting requirements of Section 13 or Section 15(d) of the Exchange Act.
(b) Each of the consolidated financial statements (including, in each case, any related notes and schedulesor schedules thereto) contained or to be contained in the Company Buyer SEC Reports Documents at the time filed (i) complied or will comply as to form in all material respects with applicable accounting requirements and the published rules and regulations of the SEC with respect theretothereto (including Regulation S-X), (ii) were or will be prepared in accordance with generally accepted accounting principles (“GAAP”) GAAP applied on a consistent basis throughout the periods involved and at the dates involved (except as may be indicated in the notes to such financial statements or, in the case of unaudited interim financial statements, as permitted by the SEC on Form 10-Q under the Exchange Act or for normal year-end adjustments) Act), and (iii) fairly presented or will fairly present in all material respects the consolidated financial position of the Company Buyer and its Subsidiaries as of the dates thereof and the consolidated results of its their operations and cash flows for the periods indicated, all in accordance with GAAP, except that the unaudited interim financial statements were or are subject to normal and recurring year-end adjustments that have not been and are not expected to be material to the Companyadjustments. The unaudited consolidated audited balance sheet of the Company Buyer as of June 30December 31, 2004 2012 is referred to herein as the “Company Buyer Balance Sheet.”
(c) Ernst & Young LLP, the Buyer’s current auditors, is and has been at all times since its engagement by the Buyer (i) “independent” with respect to the Buyer within the meaning of Regulation S-X and (ii) in compliance with subsections (g) through (l) of Section 10A of the Exchange Act (to the extent applicable) and the related rules of the SEC and the Public Company Accounting Oversight Board.
(d) The information included in the Registration Statement or in any Regulation M-A Filing (except, in each case, for information to be supplied in writing to the Buyer by or on behalf of the Company specifically for inclusion in the registration statement on Form S-4 pursuant Registration Statement or specifically for inclusion in any Regulation M-A Filing, as to which the Company Series A Preferred Stock issued in the Merger Buyer makes no representation and the Company Common Stock issuable upon conversion which shall not constitute part of the Company Series A Preferred Stock will be registered under the Securities Act (including any amendments or supplements, the “Registration Statement”), Buyer SEC Documents for purpose of this Agreement) shall not at the time the Registration Statement or any such Regulation M-A Filing is filed with the SEC, at any time it is amended or supplemented, or at the time the Registration Statement is declared effective by the SEC SEC, as applicable, contain any untrue statement of a material fact or omit to state any material fact required to be stated in the Registration Statement therein or necessary in order to make the statements in the Registration Statement therein not misleading. The information included in the Joint Proxy Statement/Prospectus (except for information to be supplied in writing by or on behalf of the Company specifically for inclusion in the joint proxy statement/prospectus (the “Joint Proxy Statement”) to be sent to the stockholders of the Company in connection with the meeting of the Company’s stockholders to consider the adoption of this Agreement and the Merger (the “Company Meeting”) and the Partners in connection with the Fund Consent Solicitation (as herein defined/Prospectus) shall not, on the date the Joint Proxy Statement Statement/Prospectus is first mailed to stockholders of the Company and Buyer or the PartnersCompany, or at the time of the Buyer Meeting or the Company Meeting and at the Effective TimeMeeting, contain any statement which, at such time and in light of the circumstances under which it shall be made, is false or misleading with respect to any material fact, or omit to state any material fact necessary in order to make the statements made in the Joint Proxy Statement Statement/Prospectus not false or misleading; or omit to state any material fact necessary to correct any statement in any earlier communication with respect to the solicitation of proxies for the Company Buyer Meeting or the solicitation of consents in connection with the Fund Consent Solicitation Company Meeting which has become false or misleading. If at any time prior to the Effective Time any event relating to the Company, any Affiliate .
(as defined belowe) As of the Company, or any officers or directors date of any of them, should be discovered by the Company which should be set forth in an amendment to the Registration Statement or a supplement to the Proxy Statement, the Company shall promptly inform the Fund. As used in this Agreement, (i) neither the termBuyer nor any of its Subsidiaries has entered into any transaction that would be subject to proxy statement disclosure pursuant to Item 404 of Regulation S-K and (ii) neither the Buyer nor any of its Subsidiaries is a party to any employment agreement. Table of Contents
Appears in 1 contract
Samples: Merger Agreement (Palomar Medical Technologies Inc)
SEC Filings; Financial Statements; Information Provided. (a) All The Company has filed all registration statements, forms, reports and other documents required to be filed by the Company with the SEC since January July 1, 2001 2006. All such registration statements, forms, reports and other documents (including those that the Company may file after the date hereof until the Closing) are referred to herein as the “Company SEC Reports.” Except as set forth in Section 3.4 of the Company Disclosure Schedule, the The Company SEC Reports (i) were or will be filed on a timely basis and basis, (ii) were at the time filed, complied, or will be prepared in compliance comply when filed, as to form in all material respects with the applicable requirements of the Securities Act, Act and the Exchange Act, as the case may be, Act applicable to such Company SEC Reports. None of , and (iii) did not or will not at the Company SEC Reports when filed, after giving effect to any amendments and supplements thereto time they were or are filed prior to the date hereof, contained contain any untrue statement of a material fact or omitted omit to state any a material fact required to be stated therein in such Company SEC Reports or necessary in order to make the statements thereinin such Company SEC Reports, in the light of the circumstances under which they were made, not misleading. None of the Company’s Subsidiaries has filed, or is obligated to file, misleading in any forms, reports, schedules, statements or other documents with the SEC. As used in this Section 3.4(a), the term “filed” shall be broadly construed to include any manner in which a document or information is furnished, supplied or otherwise made available to the SECmaterial respect.
(b) Each of the consolidated financial statements (including, in each case, any related notes and schedules) contained or to be contained in the Company SEC Reports at the time filed (i) complied or will comply as to form in all material respects with applicable accounting requirements and the published rules and regulations of the SEC with respect thereto, (ii) were or will be prepared in accordance with United States generally accepted accounting principles (“GAAP”) applied on a consistent basis throughout the periods involved (except as may be indicated in the notes to such financial statements or, in the case of unaudited interim financial statements, as permitted by the SEC on Form 10-Q under the Exchange Act or for normal year-end adjustments) Act), and (iii) fairly presented or will fairly present in all material respects the consolidated financial position of the Company and its subsidiaries as of the dates thereof indicated and the consolidated results of its operations and cash flows for the periods indicated, except that the unaudited interim financial statements were or are subject to normal and recurring year-end adjustments that have not been and are not expected to be material to the Companyadjustments. The unaudited consolidated audited balance sheet of the Company as of June 30December 31, 2004 2008 is referred to herein as the “Company Balance Sheet.”
(c) The information to be supplied by or on behalf of the Company for inclusion in the registration statement Schedule TO or the Offer Documents, on Form S-4 pursuant the date the Schedule TO is filed with the SEC and on the date the Offer Documents are first published, sent or given to which the Company Series A Preferred Stock issued in the Merger and the holders of shares of Company Common Stock issuable upon conversion of the Company Series A Preferred Stock will be registered under the Securities Act (including any amendments or supplements, the “Registration Statement”)Stock, shall not at the time the Registration Statement is declared effective by the SEC contain any untrue statement of a material fact or omit to state any material fact required to be stated in the Registration Statement therein or necessary in order to make the statements therein not misleading in any material respect, in light of the Registration Statement not misleading. circumstances in which they shall be made.
(d) The information to be supplied by Company is in compliance in all material respects with the Company for inclusion in applicable provisions of the joint proxy statement/prospectus Xxxxxxxx-Xxxxx Act of 2002 (the “Proxy StatementXxxxxxxx-Xxxxx Act”) ). Each required form, report and document containing financial statements that has been filed with or submitted to the SEC since July 21, 2003 was accompanied by the certifications required to be sent to the stockholders of the Company in connection with the meeting of filed or submitted by the Company’s stockholders chief executive officer and chief financial officer pursuant to consider the adoption of this Agreement and the Merger (the “Company Meeting”) and the Partners in connection with the Fund Consent Solicitation (as herein defined) shall not, on the date the Proxy Statement is first mailed to stockholders of the Company and the PartnersXxxxxxxx-Xxxxx Act and, at the time of filing or submission of each such certification, such certification complied in all material respects with the applicable provisions of the Xxxxxxxx-Xxxxx Act.
(e) The Company maintains disclosure controls and procedures and internal control over financial reporting required by Rule 13a-15 or 15d-15 under the Exchange Act. Such disclosure controls and procedures are effective to ensure that all material information concerning the Company Meeting and at the Effective Time, contain any statement which, at such time and in light of the circumstances under which it shall be made, is false or misleading with respect to any material fact, or omit to state any material fact necessary in order to make the statements made in the Proxy Statement not false or misleading; or omit to state any material fact necessary to correct any statement in any earlier communication with respect known on a timely basis to the solicitation of proxies individuals responsible for the Company Meeting or the solicitation of consents in connection with the Fund Consent Solicitation which has become false or misleading. If at any time prior to the Effective Time any event relating to the Company, any Affiliate (as defined below) preparation of the Company, or any officers or directors ’s filings with the SEC and other public disclosure documents. The Company’s internal control over financial reporting provides reasonable assurance regarding the reliability of any its financial reporting and the preparation of them, should be discovered by its financial statements in accordance with GAAP. The Company is in compliance in all material respects with the Company which should be set forth in an amendment to the Registration Statement or a supplement to the Proxy Statement, the Company shall promptly inform the Fund. As used in this Agreement, the termapplicable listing and other rules and regulations of The Nasdaq Stock Market.
Appears in 1 contract
Samples: Merger Agreement (Trimeris Inc)
SEC Filings; Financial Statements; Information Provided. (a) All The Company has filed all registration statements, forms, reports and other documents required to be filed by the Company or its predecessors with the SEC since January 1, 2001 2003. All such registration statements, forms, reports and other documents (including those that the Company may file after the date hereof until the Closing) are referred to herein as the “Company SEC Reports.” Except as set forth in Section 3.4 of the Company Disclosure Schedule, the Each Company SEC Reports Report (except to the extent that information contained in such Company SEC Report has been superseded, revised or amended by a subsequent Company SEC Report filed prior to the date hereof), (i) were or will be filed on a timely basis and (ii) were or will be prepared in compliance at the time filed, complied, as to form in all material respects with the applicable requirements of the Securities Act, and Act or the Exchange Act, as the case may be, and the rules and regulations of the SEC thereunder applicable to such Company SEC Reports. None of , each as in effect on the Company SEC Reports when date filed, after giving effect to any amendments and supplements thereto (ii) did not at the time filed prior to the date hereof, contained contain any untrue statement of a material fact or omitted omit to state any a material fact required to be stated therein in each such Company SEC Report or necessary in order to make the statements thereinin each such Company SEC Report, in the light of the circumstances under which they were made, not misleading. None Except as set forth in Section 3.5(a) of the Company’s Subsidiaries has filedCompany Disclosure Schedule, or no Subsidiary of the Company is obligated to file, any forms, reports, schedules, statements or other documents with the SEC. As used in this Section 3.4(a), the term “filed” shall be broadly construed to include any manner in which a document or information is furnished, supplied or otherwise made available subject to the SECreporting requirements of Section 13(a) or Section 15(d) of the Exchange Act.
(b) Each of the Company’s consolidated financial statements (including, in each case, any related notes and schedules) contained or to be contained in the Company SEC Reports at the time filed (whether prior to or after the date hereof): (i) complied or will comply as to form in all material respects with applicable accounting requirements and the published rules and regulations of the SEC with respect thereto, ; (ii) were or will be prepared in accordance with generally accepted accounting principles (“GAAP”) GAAP applied on a consistent basis throughout the periods involved (except as may be indicated in the notes to such financial statements or, in the case of unaudited interim financial statements, as permitted by the SEC on Form 1010 Q (or to the extent filed only on Form 8-Q K as permitted by Form 8-K) under the Exchange Act or for normal year-end adjustments) Act); and (iii) fairly presented or will fairly present in all material respects the consolidated financial position of the Company and its Subsidiaries as of the dates thereof indicated and the consolidated results of its operations and cash flows for the periods indicated, except that the unaudited interim financial statements were or are subject to normal and recurring year-end adjustments that have not been and are not expected to be material to in amount. Except as set forth on Section 3.5(b) of the CompanyCompany Disclosure Schedule, all of the Subsidiaries of the Company are consolidated for accounting purposes. The unaudited consolidated, audited balance sheet of the Company as of June 30December 31, 2004 2005 is referred to herein as the “Company Balance Sheet.”
(c) The information to be supplied by the Company for inclusion Except as set forth in the registration statement on Form S-4 pursuant to which the Company Series A Preferred Stock issued in the Merger and the Company Common Stock issuable upon conversion Section 3.5(c) of the Company Series A Preferred Stock will be registered under Disclosure Schedule or the Securities Act 2005 10-K (as defined herein), neither the Company nor any of its Subsidiaries is a party to, or has any commitment to become a party to (i) any joint venture, off-balance sheet partnership or any similar Contract or arrangement (including without limitation any amendments Contract or supplements, the “Registration Statement”), shall not at the time the Registration Statement is declared effective by the SEC contain arrangement relating to any untrue statement of a material fact transaction or omit to state any material fact required to be stated in the Registration Statement relationship between or necessary in order to make the statements in the Registration Statement not misleading. The information to be supplied by among the Company for inclusion in the joint proxy statement/prospectus (the “Proxy Statement”) to be sent to the stockholders and any of the Company in connection with the meeting of the Company’s stockholders to consider the adoption of this Agreement and the Merger (the “Company Meeting”) and the Partners in connection with the Fund Consent Solicitation (as herein defined) shall notits Subsidiaries, on the date one hand, and any unconsolidated Affiliate on the Proxy Statement is first mailed to stockholders other hand), including without limitation any “off-balance sheet arrangement” (as defined in Item 303(a) of Regulation S-K promulgated by the SEC); or (ii) any hedging, derivatives or similar Contract or arrangement.
(d) Each of the principal executive officer of the Company and the Partners, at the time principal financial officer of the Company Meeting and at the Effective Time, contain any statement which, at such time and in light (or each former principal executive officer of the circumstances under which it shall be made, is false or misleading with respect to any material fact, or omit to state any material fact necessary in order to make the statements made in the Proxy Statement not false or misleading; or omit to state any material fact necessary to correct any statement in any earlier communication with respect to the solicitation of proxies for the Company Meeting or the solicitation of consents in connection with the Fund Consent Solicitation which has become false or misleading. If at any time prior to the Effective Time any event relating to the Company, any Affiliate (as defined below) and each former principal financial officer of the Company, as applicable) has made all certifications required by Rule 13a-14 or any officers Rule 15d-14 under the Exchange Act or directors Sections 302 and 906 of any the Xxxxxxxx-Xxxxx Act of them2002 (the “Sarbanes Act”) and the rules and regulations of the SEC promulgated thereunder with respect to Company SEC Reports. For purposes of the preceding sentence, should “principal executive officer” and “principal financial officer” shall have the meanings given to such terms in the Sarbanes Act.
(e) The Company maintains disclosure controls and procedures required by Rule 13a-15 or 15d-15 under the Exchange Act. Such disclosure controls and procedures (i) are designed and maintained to ensure that information required to be discovered disclosed by the Company which should be is recorded, processed and reported on a timely basis to the individuals responsible for the preparation of the Company’s filings with the SEC and other public disclosure documents, and (ii) except as set forth in an amendment Section 3.5(e) of the Company Disclosure Schedule, have not resulted in disclosure to the Registration Statement Company’s outside auditors and the audit committee of the Company Board of (A) any significant deficiencies or material weaknesses in the design or operation of internal control over financial reporting (as defined in Rule 13a-15(f) of the Exchange Act) which existed as of the date of the Company Balance Sheet and are reasonably likely to adversely affect the Company’s ability to record, process, summarize and report financial data or (B) any fraud, whether or not material, that involves management or other employees who have a supplement significant role in the Company’s internal control over financial reporting. The Company is in compliance in all material respects with the applicable listing and other rules and regulations of The NASDAQ National Market.
(f) The Company has made available to Merger Sub a complete and correct copy of any exhibits, annexes, attachments, supplements, amendments or modifications that have not been filed with the SEC to Contracts that are currently filed by the Company with the SEC pursuant to the Proxy Statement, Securities Act or the Company shall promptly inform the Fund. As used in this Agreement, the termExchange Act that have been requested by Parent or Merger Sub.
Appears in 1 contract
SEC Filings; Financial Statements; Information Provided. (a) All The Company has filed all registration statements, forms, reports and other documents required to be filed by the Company with the SEC since January 1, 2001 2003. All such registration statements, forms, reports and other documents (including those that the Company may file after the date hereof until the Closing) are referred to herein as the “Company SEC Reports.” Except as set forth in Section 3.4 of the Company Disclosure Schedule, the The Company SEC Reports (i) were or will be filed on a timely basis and basis, (ii) were at the time filed, complied, or will be prepared in compliance comply when filed, as to form in all material respects with the applicable requirements of the Securities Act, the Exchange Act and the Exchange Xxxxxxxx-Xxxxx Act of 2002 (the “Xxxxxxxx-Xxxxx Act”), as the case may be, and the rules and regulations of the SEC thereunder applicable to such Company SEC Reports. None of , and (iii) did not or will not at the Company SEC Reports when filed, after giving effect to any amendments and supplements thereto time they were or are filed prior to the date hereof, contained contain any untrue statement of a material fact or omitted omit to state any a material fact required to be stated therein in such Company SEC Reports or necessary in order to make the statements thereinin such Company SEC Reports, in the light of the circumstances under which they were made, not misleading. None of the Company’s Subsidiaries has filed, or is obligated to file, any forms, reports, schedules, statements or other documents with the SEC. As used in this Section 3.4(a), the term “filed” shall be broadly construed to include any manner in which a document or information is furnished, supplied or otherwise made available to the SEC.
(b) Each of the consolidated financial statements (including, in each case, any related notes and schedules) contained or to be contained in the Company SEC Reports (“Company Financial Statements”) at the time filed (i) complied or will comply as to form in all material respects with applicable accounting requirements and the published rules and regulations of the SEC with respect thereto, (ii) were was or will be prepared in accordance with United States generally accepted accounting principles (“GAAP”) applied on a consistent basis throughout the periods involved (except as may be indicated in the notes to such financial statements or, in the case of unaudited interim financial statements, as permitted by the SEC on Form 10-Q under the Exchange Act or for normal year-end adjustments) Act), and (iii) fairly presented or will fairly present in all material respects the consolidated financial position of the Company and its Subsidiaries as of the dates thereof indicated and the consolidated results of its their operations and cash flows for the periods indicated, except that the unaudited interim financial statements were or are subject to normal and recurring year-end adjustments that have not been and are not expected to be material to the Companyadjustments. The consolidated unaudited balance sheet of the Company as of June 30March 31, 2004 2006 is referred to herein as the “Company Balance Sheet.”
(c) The information to be supplied by or on behalf of the Company for inclusion in the registration proxy statement on Form S-4 pursuant to which the Company Series A Preferred Stock issued in the Merger and the Company Common Stock issuable upon conversion of the Company Series A Preferred Stock will be registered under the Securities Act (including any amendments or supplements, the “Registration Statement”), shall not at the time the Registration Statement is declared effective by the SEC contain any untrue statement of a material fact or omit to state any material fact required to be stated in the Registration Statement or necessary in order to make the statements in the Registration Statement not misleading. The information to be supplied by the Company for inclusion in the joint proxy statement/prospectus (the “Proxy Statement”) to be sent to the stockholders of the Company (the “Proxy Statement”) in connection with the meeting of the Company’s stockholders to consider the adoption of this Agreement and the Merger (the “Company Meeting”) and the Partners in connection with the Fund Consent Solicitation (as herein defined) Meeting shall not, on the date the Proxy Statement is first mailed to stockholders of the Company and the PartnersCompany, at the time of the Company Meeting and or at the Effective Time, contain any statement which, at such time and in light of the circumstances under which it shall be made, is false or misleading with respect to any material fact, or omit to state any material fact necessary in order to make the statements made in the Proxy Statement not false or misleadingmisleading in light of the circumstances under which they were or shall be made; or omit to state any material fact necessary to correct any statement in any earlier communication with respect to the solicitation of proxies for the Company Meeting or the solicitation of consents in connection with the Fund Consent Solicitation which has become false or misleading. If at any time prior to the Effective Time Company Meeting any fact or event relating to the Company, any Affiliate (as defined below) of the Company, Company or any officers or directors of any of them, its Affiliates which should be set forth in a supplement to the Proxy Statement should be discovered by the Company which or should be set forth in an amendment to the Registration Statement or a supplement to the Proxy Statementoccur, the Company shall shall, promptly after becoming aware thereof, inform the FundBuyer of such fact or event.
(d) The Company is in compliance in all material respects with the applicable provisions of the Xxxxxxxx-Xxxxx Act. As used Each required form, report and document containing financial statements that has been filed with or submitted to the SEC since July 21, 2003 was accompanied by the certifications required to be filed or submitted by the Company’s chief executive officer and chief financial officer pursuant to the Xxxxxxxx-Xxxxx Act and, at the time of filing or submission of each such certification, such certification complied in this Agreementall material respects with the applicable provisions of the Xxxxxxxx-Xxxxx Act and the rules and regulations promulgated thereunder.
(e) The Company maintains disclosure controls and procedures required by Rule 13a-15 or 15d-15 under the Exchange Act. Such disclosure controls and procedures are effective to ensure that all material information concerning the Company is made known on a timely basis to the individuals responsible for the preparation of the Company’s filings with the SEC and other public disclosure documents. The Company is in compliance in all material respects with the applicable listing and other rules and regulations of The Nasdaq National Market.
(f) The Company has not had any material dispute with its independent public auditors regarding accounting matters or policies during any of its past three full fiscal years or during the current fiscal year. Since January 1, 2003, neither the termCompany nor any Subsidiaries nor, to the Company’s Knowledge, any director, officer, employee, auditor, accountant or representative of the Company or any Subsidiary has received any material, unresolved complaint, allegation, assertion or claim regarding accounting or auditing practices, procedures, methodologies or methods of the Company or any Subsidiary or their respective internal accounting controls or any material inaccuracy in the Company’s financial statements. No attorney representing the Company or any of its Subsidiaries, whether or not employed by the Company or any Subsidiary, has reported to the Company Board or any committee thereof or, to the Company’s Knowledge, to any director or officer of the Company evidence of a material violation of securities laws, breach of fiduciary duty or similar violation by the Company or any of its officers, directors, employees or agents.
Appears in 1 contract
Samples: Merger Agreement (Emc Corp)
SEC Filings; Financial Statements; Information Provided. (a) All forms, reports and other documents required to be filed by the Company with the SEC since January 1, 2001 1999 (including those that the Company may file after the date hereof until the Closing) are referred to herein as the “"Company SEC Reports.” Except as set forth in Section 3.4 of the Company Disclosure Schedule, the " The Company SEC Reports (i) were or will be filed on a timely basis and (ii) were or will be prepared in compliance in all material respects with the applicable requirements of the Securities Act of 1933, as amended (the "Securities Act"), and the Exchange Act, as the case may be, applicable to such Company SEC Reports. None of the Company SEC Reports when filed, after giving effect to any amendments and supplements thereto filed prior to the date hereof, 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. None of the Company’s Subsidiaries has filed, or is obligated to file, any forms, reports, schedules, statements or other documents with the SEC. As used in this Section 3.4(a), the term “filed” shall be broadly construed to include any manner in which a document or information is furnished, supplied or otherwise made available to the SEC.
(b) Each of the consolidated financial statements (including, in each case, any related notes and schedules) contained or to be contained in the Company SEC Reports (i) complied or will comply as to form in all material respects with applicable accounting requirements and the published rules and regulations of the SEC with respect thereto, (ii) were or will be prepared in accordance with generally accepted accounting principles (“"GAAP”") applied on a consistent basis throughout the periods involved (except as may be indicated in the notes to such financial statements or, in the case of unaudited statements, as permitted by the SEC on Form 10-Q under the Exchange Act or for normal year-end adjustments) and (iii) fairly presented or will fairly present the financial position of the Company as of the dates thereof and the results of its operations and cash flows for the periods indicated, except that the unaudited interim financial statements were or are subject to normal and recurring year-end adjustments that have not been and are not expected to be material to the Companyadjustments. The unaudited balance sheet of the Company as of June 30March 31, 2004 2001 is referred to herein as the “"Company Balance Sheet.”"
(c) The information to be supplied by the Company for inclusion in the registration statement on Form S-4 pursuant to which the Company Series A Buyer Common Stock and Buyer Preferred Stock issued in connection with the Merger and the Company Common Stock issuable upon conversion of the Company Series A Preferred Stock will be registered under the Securities Act (including any amendments or supplements, the “"Registration Statement”"), shall not at the time the Registration Statement is declared effective by the SEC contain any untrue statement of a material fact or omit to state any material fact required to be stated in the Registration Statement or necessary in order to make the statements in the Registration Statement not misleading. The information to be supplied by the Company for inclusion in the joint proxy statement/prospectus (the “"Proxy Statement”") to be sent to the stockholders of the Company in connection with the meeting of the Company’s 's stockholders to consider the adoption of this Agreement and the Merger (the “"Company Meeting”) and the Partners in connection with the Fund Consent Solicitation (as herein defined") shall not, on the date the Proxy Statement is first mailed to stockholders of the Company and the PartnersCompany, at the time of the Company Meeting and at the Effective Time, contain any statement which, at such time and in light of the circumstances under which it shall be made, is false or misleading with respect to any material fact, or omit to state any material fact necessary in order to make the statements made in the Proxy Statement not false or misleading; or omit to state any material fact necessary to correct any statement in any earlier communication with respect to the solicitation of proxies for the Company Meeting or the solicitation of consents in connection with the Fund Consent Solicitation which has become false or misleading. If at any time prior to the Effective Time any event relating to the Company, Company or any Affiliate (as defined below) of the Company, or any officers or directors of any of them, should be discovered by the Company which should be set forth in an amendment to the Registration Statement or a supplement to the Proxy Statement, the Company shall promptly inform the FundBuyer. As used in this Agreement, the termterm "Affiliate" shall have the same meaning as such term is defined in Rule 405 promulgated under the Securities Act.
Appears in 1 contract
SEC Filings; Financial Statements; Information Provided. (a) All Except as described in Section 3.5(a) of the Company Disclosure Letter, the Company has timely filed all registration statements, forms, reports and other documents required to be filed or furnished by the Company with the SEC since January 1, 2001 2004 (including those that the forms, reports and other documents required to be filed or furnished by the Company may file after with the SEC since January 1, 2004 and those filed with the SEC subsequent to the date of this Agreement, if any, including any amendments thereto filed prior to the date hereof until the Closing) are referred to herein as the “Company SEC Reports.” Except as set forth in Section 3.4 ”). As of the Company Disclosure Scheduletheir respective dates, the Company SEC Reports (i) were or will be filed on a timely basis and (ii) were or will be prepared in compliance complied in all material respects with the applicable requirements of the Securities Act, Act and the Exchange Act, as the case may be, and the rules and regulations of the SEC thereunder and the Xxxxxxxx-Xxxxx Act of 2002 and the rules and regulations promulgated thereunder (the “Xxxxxxxx-Xxxxx Act”), in each case, as applicable to such Company SEC Reports. None of the Company SEC Reports when filed, after giving effect to any amendments and supplements thereto filed prior to the date hereof, 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 therein in such Company SEC Reports or necessary in order to make the statements thereinin such Company SEC Reports, in the light of the circumstances under which they were made, not misleading. The Company is in compliance in all material respects with the applicable provisions of the Xxxxxxxx-Xxxxx Act. 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 with respect to any Company SEC Report. The Company has made available to the Buyer true, correct and complete copies of all material written correspondence between the SEC, on the one hand, and the Company and any of its Subsidiaries, on the other hand. As of the date of this Agreement, there are no outstanding or unresolved comments in comment letters received from the SEC staff with respect to the Company SEC Reports. To the Knowledge of the Company, none of the Company SEC Reports is the subject of ongoing SEC review or outstanding SEC comment. None of the Company’s Subsidiaries has filed, or is obligated required to file, any forms, reports, schedules, statements or other documents file periodic reports with the SEC. As used in this Section 3.4(a), the term “filed” shall be broadly construed to include any manner in which a document or information is furnished, supplied or otherwise made available SEC pursuant to the SECExchange Act.
(b) Each of the consolidated financial statements (including, in each case, any related notes and schedules) contained or to be contained in the Company SEC Reports (i) complied or will comply as to form in all material respects with applicable accounting requirements and the published rules and regulations of the SEC with respect thereto, (ii) were or will be was prepared in accordance with United States generally accepted accounting principles (“GAAP”) applied on a consistent basis throughout the periods involved (except as may be indicated in the notes to such financial statements or, in the case of unaudited interim financial statements, as permitted by the SEC on Form 10-Q under the Exchange Act or for normal year-end adjustments) Act), and (iii) fairly presented or will fairly present in all material respects the consolidated financial position of the Company and its Subsidiaries as of the dates thereof indicated and the consolidated results of its their operations and cash flows for the periods indicated, except that the unaudited interim financial statements were or are subject to normal and recurring year-end adjustments that have not been and are not expected to be material to as indicated in the Companynotes thereto. The consolidated unaudited balance sheet of the Company as of June March 30, 2004 2007 is referred to herein as the “Company Balance Sheet.”
(c) The information Schedule 14D-9 to be filed by the Company in connection with the Offer will comply in all material respects with the requirements of the Exchange Act. The Schedule 14D-9 and the information supplied by or on behalf of the Company for inclusion in the registration statement Schedule TO, on Form S-4 pursuant the respective dates they are filed with the Commission and on the date they are first published, sent or given to which the Company Series A Preferred Stock issued in the Merger and the Company Common Stock issuable upon conversion stockholders of the Company Series A Preferred Stock will be registered under the Securities Act (including any amendments or supplements, the “Registration Statement”)Company, shall not at the time the Registration Statement is declared effective by the SEC contain any untrue statement of a material fact or omit to state any material fact required to be stated in the Registration Statement therein or necessary in order to make the statements therein, in light of the Registration Statement circumstances under which they were made, not misleading. The ; provided, that the Company makes no representation or warranty concerning any information to be supplied by the Company Buyer or the Acquisition Sub for inclusion in the joint Schedule 14D-9. The proxy statement/prospectus (the “Proxy Statement”) statement to be sent to the stockholders of the Company (the “Proxy Statement”) in connection with the meeting of the Company’s stockholders to consider the adoption of this Agreement and the Merger (the “Company Meeting”) and the Partners in connection with the Fund Consent Solicitation (as herein defined) Meeting shall not, on the date the Proxy Statement is first mailed to stockholders of the Company and the Partners, at the time of the Company Meeting and at the Effective Timerelevant times, contain any statement which, at such time and in light of the circumstances under which it shall be made, is false or misleading with respect to any material fact, or omit to state any material fact necessary in order to make the statements made in the Proxy Statement not false or misleadingmisleading in light of the circumstances under which they were or shall be made; or omit to state any material fact necessary to correct any statement in any earlier communication with respect to the solicitation of proxies for the Company Meeting or the solicitation of consents in connection with the Fund Consent Solicitation which has become false or misleading. If at any time prior to the Effective Time Company Meeting any fact or event relating to the Company, any Affiliate (as defined below) of the Company, Company or any officers or directors of any of them, its Affiliates which should be set forth in a supplement to the Proxy Statement should be discovered by the Company which or should be set forth in an amendment to the Registration Statement or a supplement to the Proxy Statementoccur, the Company shall shall, promptly after becoming aware thereof, inform the FundBuyer of such fact or event and shall provide Company stockholders with such supplement.
(d) The Company has established and maintains disclosure controls and procedures and internal controls over financial reporting (as such terms are defined in paragraphs (e) and (f), respectively, of Rule 13a-15 under the Exchange Act) as required by Rule 13a-15 under the Exchange Act. As used The Company’s disclosure controls and procedures are effective to ensure that all material information required to be disclosed by the Company in this Agreementthe reports that it files or furnishes under the Exchange Act is recorded, processed, summarized and reported within the termtime periods specified in the rules and forms of the SEC, and that all such material information is accumulated and communicated to the Company’s management as appropriate to allow timely decisions regarding required disclosure and to make the certifications 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 internal controls over financial reporting in compliance with the requirements of Section 404 of the Xxxxxxxx-Xxxxx Act for the year ended December 31, 2006, and such assessment concluded that such controls were effective. The Company has disclosed, based on its most recent evaluations, to the Company’s outside auditors and the audit committee of the Company (A) all significant deficiencies and material weaknesses in the design or operation of internal controls over financial reporting (as defined in Rule 13a-15(f) of the Exchange Act) which are reasonably likely to adversely affect in any material respect the Company’s ability to record, process, summarize and report financial data and (B) any fraud, whether or not material, that involves management or other employees who have a significant role in the Company’s internal controls over financial reporting.
Appears in 1 contract
Samples: Merger Agreement (Walgreen Co)
SEC Filings; Financial Statements; Information Provided. (a) All The Company has filed all registration statements, forms, reports and other documents required to be filed by the Company with the SEC since January July 1, 2001 2001, and has made available to the Buyer copies of all registration statements, forms, reports and other documents filed by the Company with the SEC since such date, all of which are publicly available on the SEC’s EXXXX system. All such registration statements, forms, reports and other documents (including those that the Company may file files after the date hereof until the ClosingEffective Time) are referred to herein as the “Company SEC Reports.” Except as set forth in Section 3.4 of the Company Disclosure Schedule, the The Company SEC Reports (i) were or were, and with respect to Company SEC Reports filed after the date of this Agreement and prior to the Effective Time will be be, filed on a timely basis and basis, (ii) were or at the time filed, were, and with respect to Company SEC Reports filed after the date of this Agreement and prior to the Effective Time will be be, prepared in compliance in all material respects with the applicable requirements of the Securities Act, Act and the Exchange Act, as the case may be, and the rules and regulations of the SEC thereunder applicable to such Company SEC Reports. None of , and (iii) did not at the time they were filed, and with respect to Company SEC Reports when filed, filed after giving effect to any amendments the date of this Agreement and supplements thereto filed prior to the date hereofEffective Time will not at the time they are filed, contained contain any untrue statement of a material fact or omitted omit to state any a material fact required to be stated therein in such Company SEC Reports or necessary in order to make the statements thereinin such Company SEC Reports, in the light of the circumstances under which they were made, not misleading. None No Subsidiary of the Company’s Subsidiaries has filed, or Company is obligated to file, any forms, reports, schedules, statements or other documents with the SEC. As used in this Section 3.4(a), the term “filed” shall be broadly construed to include any manner in which a document or information is furnished, supplied or otherwise made available subject to the SECreporting requirements of Section 13(a) or Section 15(d) of the Exchange Act. There are no off-balance sheet structures or transactions with respect to the Company or any of its Subsidiaries that would be required to be reported or set forth in the Company SEC Reports.
(b) Each of the consolidated financial statements (including, in each case, any related notes and schedules) contained or to be contained incorporated by reference in the Company SEC Reports at the time filed (i) complied or complied, and with respect to Company SEC Reports filed after the date of this Agreement and prior to the Effective Time will comply comply, as to form in all material respects with applicable accounting requirements and the published rules and regulations of the SEC with respect thereto, (ii) were or were, and with respect to Company SEC Reports filed after the date of this Agreement and prior to the Effective Time will be be, prepared in accordance with United States generally accepted accounting principles (“GAAP”) applied on a consistent basis throughout the periods involved (except as may be indicated in the notes to such financial statements or, in the case of unaudited interim financial statements, as permitted by the SEC on Form 10-Q under the Exchange Act or for normal year-end adjustmentsAct) and (iii) fairly presented or presented, and with respect to Company SEC Reports filed after the date of this Agreement and prior to the Effective Time will fairly present present, the consolidated financial position of the Company and its Subsidiaries as of the dates thereof indicated and the consolidated results of its operations and cash flows for the periods indicated, consistent with the books and records of the Company and its Subsidiaries, except that the unaudited interim financial statements were or are subject to normal and recurring year-end adjustments that have were not been and or are not expected to be material to the Companyin amount. The consolidated, unaudited balance sheet of the Company as of June 30December 31, 2004 is referred to herein as the “Company Balance Sheet.”
(c) Section 3.4(c) of the Company Disclosure Schedule contains complete and correct copies of the unaudited financial statements of Pinnacle Systems GmbH, Braunschweig, as of June 30, 2004, the audited financial statements of PS Miro Holdings Inc. & Co. KG, Munich, as of June 30, 2004 (collectively, the “German Financial Statements”). The German Financial Statements (i) have been prepared in accordance with German Generally Accepted Accounting Principles (Grundsätze ordnungsgemäßer Buchführung und Bilanzierung), including without limitation having regard to the principles of accounting and valuation continuity and in compliance with the pertinent commercial law provisions, applied on a consistent basis throughout the periods involved, (ii) fairly present the asset, financial and earnings situation of Pinnacle Systems GmbH, Braunschweig, and PS Miro Holdings Inc. & Co. KG, Munich, as of the dates indicated, consistent with the books and records of Pinnacle Systems GmbH, Braunschweig, and PS Miro Holdings Inc. & Co. KG, Munich, (iii) observe the principle of the minimum valuation (Niederstwertprinzip) and (iv) accurately and completely reflect all liabilities and contingent liabilities (including but not limited to taxes and accruals for severance payments under Articles 89b of the German Commercial Code and/or the Council Directive 86/653/EEC of December 18, 1986 on the coordination of the laws of the Member States relating to self-employed commercial agents) of Pinnacle Systems GmbH, Braunschweig, and PS Miro Holdings Inc. & Co. KG, Munich.
(d) The information to be supplied by or on behalf of the Company for inclusion or incorporation by reference in the registration statement on Form S-4 to be filed by the Buyer pursuant to which the Company Series A Preferred shares of Buyer Common Stock issued in connection with the Merger and the Company Common Stock issuable upon conversion of the Company Series A Preferred Stock will shall be registered under the Securities Act (including any amendments or supplements, the “Registration Statement”), or to be included or supplied by or on behalf of the Company for inclusion in any filing pursuant to Rule 165 and Rule 425 under the Securities Act or Rule 14a-12 under the Exchange Act (each a “Regulation M-A Filing”), shall not at the time the Registration Statement or any Regulation M-A Filing is filed with the SEC, at any time the Registration Statement is amended or supplemented, or at the time the Registration Statement is declared effective by the SEC (as applicable), contain any untrue statement of a material fact or omit to state any material fact required to be stated in the Registration Statement therein or necessary in order to make the statements in the Registration Statement therein not misleading. The information to be supplied by or on behalf of the Company for inclusion in the joint proxy statement/prospectus (the “Proxy Statement”) to be sent to the stockholders shareholders and stockholders, respectively, of the Company and the Buyer (the “Joint Proxy Statement/Prospectus”) in connection with (i) the meeting of the Company’s stockholders shareholders to consider the adoption of this Agreement and the Merger Company Voting Proposal (the “Company Shareholders Meeting”) (which shall be deemed to include all information about or relating to the Company, the Company Voting Proposal and the Partners in connection with Company Shareholders Meeting), and (ii) the Fund Consent Solicitation meeting of the Buyer’s stockholders (as herein definedthe “Buyer Stockholders Meeting”) shall notto consider the issuance of shares of Buyer Common Stock and the amendment to the Buyer’s Certificate of Incorporation (the “Buyer Voting Proposals”), on the date the Joint Proxy Statement Statement/Prospectus is first mailed to stockholders shareholders and stockholders, respectively, of the Company and or the PartnersBuyer, or at the time of the Company Shareholders Meeting and or the Buyer Stockholders Meeting or at the Effective Time, contain any statement which, at such time and in light of the circumstances under which it shall be made, is false or misleading with respect to any material fact, or omit to state any material fact necessary in order to make the statements made in the Joint Proxy Statement Statement/Prospectus not false or misleading; or omit to state any material fact necessary to correct any statement in any earlier communication with respect to the solicitation of proxies for the Company Shareholders Meeting or the solicitation of consents in connection with the Fund Consent Solicitation which Buyer Stockholders Meeting that has become false or misleading. If at any time prior to the Effective Time any fact or event relating to the Company, any Affiliate (as defined below) of the Company, Company or any officers or directors of any of them, should be discovered by the Company which its Affiliates that should be set forth in an amendment to the Registration Statement or a supplement to the Joint Proxy Statement/Prospectus should be discovered by the Company or should occur, the Company shall promptly inform the FundBuyer of such fact or event.
(e) The Company maintains disclosure controls and procedures required by Rule 13a-15(e) or 15d-15(e) under the Exchange Act. As used Such disclosure controls and procedures are effective to provide reasonable assurance that information the Company is required to disclose in this Agreementreports that it files or submits under the Exchange Act is recorded, processed, summarized and reported within the termtime periods specified in SEC rules and forms, and that such information is accumulated and communicated to the Company’s management as appropriate, to allow timely decisions regarding required disclosure. The Company has disclosed, based on its most recent evaluation of internal control over financial reporting prior to the date hereof, to the Company’s auditors and the Audit Committee of the Company’s Board of Directors (A) any significant deficiencies or material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect in any material respect the Company’s ability to record, process, summarize and report financial data and (B) any fraud, whether or not material, that involves management or other employees of the Company or its Subsidiaries who have a significant role in the Company’s internal control over financial reporting. Since January 1, 2002, neither the Company nor any of its Subsidiaries nor, to the knowledge of the Company, any director, officer, employee, auditor, accountant or representative of the Company or any of its Subsidiaries has received or otherwise had or obtained knowledge of any material complaint, allegation, assertion or claim, whether written or oral, regarding the accounting or auditing practices, procedures, methodologies or methods of the Company or any of its Subsidiaries or their respective internal accounting controls including any material complaint, allegation, assertion or claim that the Company or any of its Subsidiaries has engaged in questionable accounting or auditing practices. No attorney representing the Company or any of its Subsidiaries, whether or not employed by the Company or any of its Subsidiaries, has reported evidence of a violation of securities laws, breach of fiduciary duty or similar violation by the Company or any of its officers, directors, employees or agents to the Company’s Board of Directors or any committee thereof or to any director or officer of the Company.
(f) The Company is in compliance in all material respects with the applicable provisions of the Sxxxxxxx-Xxxxx Act of 2002 (the “Sxxxxxxx-Xxxxx Act”) and with the applicable listing and other rules and regulations of The Nasdaq National Market and has not since January 1, 2002 received any notice from The Nasdaq National Market asserting any non-compliance with such rules and regulations. Each required form, report and document containing financial statements that the Company has filed with or submitted to the SEC since August 29, 2002 was accompanied by the certifications required to be filed or submitted by the Company’s principal executive officer and principal financial officer pursuant to the Sxxxxxxx-Xxxxx Act and, at the time of filing or submission of each such certification, such certification was true and accurate and complied with the Sxxxxxxx-Xxxxx Act and the rules and regulations promulgated thereunder. Except as permitted by the Exchange Act, including, without limitation, Sections 13(k)(2) and (3), since the enactment of the Sxxxxxxx-Xxxxx Act, neither the Company nor any of its affiliates has made, arranged or modified (in any material way) personal loans to any executive officer or director of the Company.
Appears in 1 contract
SEC Filings; Financial Statements; Information Provided. (a) All The Company has filed all registration statements, forms, reports and other documents required to be filed by the Company with the SEC since January February 1, 2001 2010. All such registration statements, forms, reports and other documents (including those that the Company may file after the date hereof until the Closing) are referred to herein as the “Company SEC Reports.” Except as set forth in Section 3.4 of the Company Disclosure Schedule, the The Company SEC Reports (i) were or will be filed on a timely basis and basis, (ii) were at the time filed, complied, or will be prepared in compliance comply when filed, as to form in all material respects with the applicable requirements of the Securities Act, Act and the Exchange Act, as the case may be, and the rules and regulations of the SEC thereunder applicable to such Company SEC Reports. None of , and (iii) did not or will not at the Company SEC Reports when filed, after giving effect to any amendments and supplements thereto time they were or are filed prior to the date hereof, contained contain any untrue statement of a material fact or omitted omit to state any a material fact required to be stated therein in such Company SEC Reports or necessary in order to make the statements thereinin such Company SEC Reports, in the light of the circumstances under which they were made, not misleading. None As of the Company’s Subsidiaries date of this Agreement, there are no outstanding or unresolved comments in comment letters received from the SEC or its staff. There has filedbeen no material correspondence between the SEC and the Company since February 1, or 2010 that is obligated to file, any forms, reports, schedules, statements or other documents with not available on the SEC’s Electronic Data Gathering and Retrieval database. As used in this Section 3.4(a), No Subsidiary of the term “filed” shall be broadly construed to include any manner in which a document or information Company is furnished, supplied or otherwise made available subject to the SECreporting requirements of Section 13(a) or Section 15(d) of the Exchange Act.
(b) Each of the consolidated financial statements (including, in each case, any related notes and schedules) contained or incorporated by reference or to be contained or incorporated by reference in the Company SEC Reports at the time filed (i) complied or will comply as to form in all material respects with applicable accounting requirements and the published rules and regulations of the SEC with respect thereto, (ii) were or will be prepared in accordance with United States generally accepted accounting principles (“GAAP”) applied on a consistent basis throughout the periods involved (except as may be indicated in the notes to such financial statements or, in the case of unaudited interim financial statements, as permitted by the SEC on Form 10-Q under the Exchange Act or for normal year-end adjustments) Act), and (iii) fairly presented or will fairly present in all material respects the consolidated financial position of the Company and its Subsidiaries as of the dates thereof indicated and the consolidated results of its their operations and cash flows for the periods indicated, except that the unaudited interim financial statements were or are subject to normal and recurring year-end adjustments that have not been and are not expected to be material to the Companyadjustments. The unaudited consolidated, audited balance sheet of the Company as of June 30January 29, 2004 2011 is referred to herein as the “Company Balance Sheet.”
(c) The information to be supplied by or on behalf of the Company for inclusion in the registration proxy statement on Form S-4 pursuant to which the Company Series A Preferred Stock issued in the Merger and the Company Common Stock issuable upon conversion of the Company Series A Preferred Stock will be registered under the Securities Act (including any amendments or supplements, the “Registration Statement”), shall not at the time the Registration Statement is declared effective by the SEC contain any untrue statement of a material fact or omit to state any material fact required to be stated in the Registration Statement or necessary in order to make the statements in the Registration Statement not misleading. The information to be supplied by the Company for inclusion in the joint proxy statement/prospectus (the “Proxy Statement”) to be sent to the stockholders of the Company in connection with the meeting of Company Meeting (as amended or supplemented from time to time and including any document incorporated by reference therein, the Company’s stockholders “Proxy Statement”) or in any Rule 13E-3 Transaction Statement on Schedule 13E-3 relating to consider the adoption of this Agreement and by the Merger (stockholders of the “Company Meeting”) and the Partners in connection with the Fund Consent Solicitation (as herein definedamended or supplemented from time to time and including any document incorporated by reference therein, a “Schedule 13E-3”) shall not, on the date the Proxy Statement is first mailed to stockholders of the Company and or on any other date of filing with the PartnersSEC, or at the time of the Company Meeting and at Meeting, or, in the Effective Timecase of any Schedule 13E-3, on the date it is filed with the SEC, contain any statement which, at such time and in light of the circumstances under which it shall be made, is false or misleading with respect to any material fact, or omit to state any material fact necessary in order to make the statements made in the Proxy Statement therein not false or misleadingmisleading in light of the circumstances under which they were or shall be made; or or, with respect to the Proxy Statement, omit to state any material fact necessary to correct any statement in any earlier communication with respect to the solicitation of proxies for the Company Meeting or the solicitation of consents in connection with the Fund Consent Solicitation which has become false or misleading. The Proxy Statement and any Schedule 13E-3 will comply as to form in all material respects with the requirements of the Exchange Act. If at any time prior to the Effective Time Company Meeting any fact or event relating to the Company, any Affiliate (as defined below) of the Company, Company or any officers or directors of any of them, should be discovered by the Company its Affiliates which should be set forth in an amendment to the Registration Statement or a supplement to the Proxy StatementStatement or any Schedule 13E-3 should be discovered by the Company or should, to the Company’s Knowledge, occur, the Company shall shall, promptly after becoming aware thereof, inform the FundBuyer of such fact or event. As used in For purposes of this Agreement, the termterm “Affiliate” when used with respect to any party means any person who is an “affiliate” of that party within the meaning of Rule 405 promulgated under the Securities Act. Table of Contents
(d) The Company maintains disclosure controls and procedures required by Rule 13a-15 or 15d-15 under the Exchange Act. Such disclosure controls and procedures are effective to ensure that all material information concerning the Company, including its Subsidiaries, is made known on a timely basis to the individuals responsible for the preparation of the Company’s filings with the SEC and other public disclosure documents. Since February 1, 2010, subject to any applicable grace periods, the Company and each of its officers and directors have been in compliance in all material respects with (i) the applicable listing and other rules and regulations of the New York Stock Exchange and (ii) the applicable provisions of Xxxxxxxx-Xxxxx Act of 2002, as amended and including the rules and regulations promulgated thereunder.
Appears in 1 contract
SEC Filings; Financial Statements; Information Provided. (a) All The Parent has filed all registration statements, forms, reports and other documents required to be filed by the Company Parent with the SEC since January 1, 2001 2005. All such registration statements, forms, reports and other documents (including those that the Company Parent may file after the date hereof until the Closing) are referred to herein as the “Company Parent SEC Reports.” Except as set forth in Section 3.4 of the Company Disclosure Schedule, the Company The Parent SEC Reports (i) were or will be filed on a timely basis and or within applicable extension periods; (ii) were at the time filed, complied, or will be prepared in compliance comply when filed, as to form in all material respects with the applicable requirements of the Securities Act, Act and the Exchange Act, as the case may be, and the rules and regulations of the SEC thereunder applicable to such Company Parent SEC Reports. None of ; and (iii) did not or will not at the Company SEC Reports when filed, after giving effect to any amendments and supplements thereto time they were or are filed prior to the date hereof, contained contain any untrue statement of a material fact or omitted omit to state any a material fact required to be stated therein in such Parent SEC Reports or necessary in order to make the statements thereinin such Parent SEC Reports, in the light of the circumstances under which they were made, not misleading, except to the extent corrected prior to the date of this Agreement by a subsequently filed Parent SEC Report. None No Subsidiary of the Company’s Subsidiaries has filed, or Parent is obligated to file, any forms, reports, schedules, statements or other documents with the SEC. As used in this Section 3.4(a), the term “filed” shall be broadly construed to include any manner in which a document or information is furnished, supplied or otherwise made available subject to the SECreporting requirements of Section 13(a) or Section 15(d) of the Exchange Act.
(b) Each of the consolidated financial statements (including, in each case, any related notes and schedules) contained or to be contained in the Company Parent SEC Reports at the time filed (i) complied or will comply as to form in all material respects with applicable accounting requirements and the published rules and regulations of the SEC with respect thereto, (ii) were or will be prepared in accordance with generally accepted accounting principles (“GAAP”) GAAP applied on a consistent basis throughout the periods involved (except as may be indicated in the notes to such financial statements or, in the case of unaudited statements, as permitted by the SEC on Form 10-Q or Form 8-K under the Exchange Act or for normal year-end adjustmentsAct) and (iii) fairly presented or will fairly present in all material respects the consolidated financial position of the Company Parent and its Subsidiaries as of the dates thereof indicated and the consolidated results of its operations and cash flows for the periods indicated, except that the unaudited interim financial statements were or are subject to normal and recurring year-end adjustments that have not been and are not expected to be material to the Companyadjustments. The unaudited consolidated, audited balance sheet of the Company Parent as of June 30December 31, 2004 2006 is referred to herein as the “Company Parent Balance Sheet.”
(c) The information to be supplied by or on behalf of the Company Parent and the Buyer for inclusion or incorporated by reference in the registration statement on Form S-4 pursuant to which the Company Series A Preferred Stock issued in the Merger and the Company Common Stock issuable upon conversion of the Company Series A Preferred Stock will be registered under the Securities Act (including any amendments or supplements, the “Registration Statement”), shall not at the time the Registration Proxy Statement is declared effective by the SEC contain any untrue statement of a material fact or omit to state any material fact required to be stated in the Registration Statement or necessary in order to make the statements in the Registration Statement not misleading. The information to be supplied by the Company for inclusion in the joint proxy statement/prospectus (the “Proxy Statement”) to be sent to the stockholders shareholders of the Company in connection with the meeting of the Company’s stockholders to consider the adoption of this Agreement and the Merger (the “Company Meeting”) and the Partners in connection with the Fund Consent Solicitation (as herein defined) Meeting shall not, on the date the Proxy Statement is first mailed to stockholders shareholders of the Company and the PartnersCompany, at the time of the Company Meeting or on the Closing Date, contain any statement which, at such time and in light of the circumstances under which it shall be made, is false or misleading with respect to any material fact, or omit to state any material fact required to be stated therein, necessary in order to make the statements made in the Proxy Statement not false or misleading; or omit to state any material fact necessary to correct any statement in any earlier communication with respect to the solicitation of proxies for the Company Meeting which has become false or misleading. If at any time prior to the Company Meeting any fact or event relating to the Parent or any of its Affiliates which should be set forth in a supplement to the Proxy Statement should be discovered by the Parent or the Buyer or should occur, the Parent shall, promptly after becoming aware thereof, inform the Company of such fact or event. The information supplied by or on behalf of the Parent and the Buyer for inclusion in the Registration Statements or any amendment to Registration Statements shall not at the time the Registration Statements are filed with the SEC and at any time they become effective under the Effective Time, Securities Act contain any statement which, at such time and in light of the circumstances under which it shall be made, is false or misleading with respect to any material fact, or omit to state any material fact necessary in order to make the statements made in the Proxy Statement Registration Statements not false or misleading; .
(d) The Parent maintains disclosure controls and procedures required by Rule 13a-15 or omit 15d-15 under the Exchange Act. Such disclosure controls and procedures are effective to state any ensure that all material fact necessary to correct any statement in any earlier communication with respect information concerning the Parent is made known on a timely basis to the solicitation of proxies individuals responsible for the Company Meeting or preparation of the solicitation of consents in connection Parent’s filings with the Fund Consent Solicitation SEC and other public disclosure documents. The Parent is in compliance in all material respects with the applicable listing and other rules and regulations with the stock market or exchange on which shares of Parent Common Stock are listed for trading and does not anticipate that shares of Parent Common Stock will be delisted by such stock market or exchange in the foreseeable future. The Parent has become false or misleading. If at not received any time prior to notice, other than as already publicly disclosed, regarding the Effective Time any event relating to possible delisting of shares of Parent Common Stock from the Company, any Affiliate (as defined below) of the Company, or any officers or directors of any of them, should be discovered by the Company securities exchange on which should be set forth in an amendment to the Registration Statement or a supplement to the Proxy Statement, the Company shall promptly inform the Fund. As used in this Agreement, the termthey are principally listed.
Appears in 1 contract
SEC Filings; Financial Statements; Information Provided. (a) All The Buyer has filed or furnished (as applicable) all registration statements, forms, reports reports, certifications and other documents required to be filed with or furnished to (as applicable) the SEC by the Company with the SEC Buyer since January 1, 2001 2010. All such registration statements, forms, reports, certifications and other documents required to be filed or furnished by the Buyer since January 1, 2010 (including those that the Company Buyer may file after the date hereof of the Original Merger Agreement until the Closing) are referred to herein as the “Company Buyer SEC ReportsDocuments.” Except as set forth in Section 3.4 The Buyer has made available to the Company copies of all comment letters received by the Buyer from the staff of the Company Disclosure Schedule, SEC prior to the Company date of the Original Merger Agreement with respect to all Buyer SEC Reports Documents and all responses to such comment letters by or on behalf of the Buyer filed by the Buyer with the SEC prior to the date of the Original Merger Agreement. The Buyer SEC Documents (i) were or will be filed or furnished on a timely basis and basis, (ii) were at the time filed or furnished, complied, or will be prepared in compliance comply, as to form in all material respects with the applicable requirements of the Securities Act, Act and the Exchange Act, as the case may be, and the rules and regulations of the SEC thereunder applicable to such Company Buyer SEC Reports. None of Documents, and (iii) did not or will not at the Company SEC Reports when filed, after giving effect to any amendments and supplements thereto time they were or are filed prior to the date hereof, contained or furnished contain any untrue statement of a material fact or omitted omit to state any a material fact required to be stated therein in such Buyer SEC Documents or necessary in order to make the statements thereinin such Buyer SEC Documents, in the light of the circumstances under which they were made, not misleading. None No Subsidiary of the Company’s Subsidiaries has filed, or Buyer is obligated to file, any forms, reports, schedules, statements or other documents with the SEC. As used in this Section 3.4(a), the term “filed” shall be broadly construed to include any manner in which a document or information is furnished, supplied or otherwise made available subject to the SECreporting requirements of Section 13 or Section 15(d) of the Exchange Act.
(b) Each of the consolidated financial statements (including, in each case, any related notes and schedulesor schedules thereto) contained or to be contained in the Company Buyer SEC Reports Documents at the time filed (i) complied or will comply as to form in all material respects with applicable accounting requirements and the published rules and regulations of the SEC with respect theretothereto (including Regulation S-X), (ii) were or will be prepared in accordance with generally accepted accounting principles (“GAAP”) GAAP applied on a consistent basis throughout the periods involved and at the dates involved (except as may be indicated in the notes to such financial statements or, in the case of unaudited interim financial statements, as permitted by the SEC on Form 10-Q under the Exchange Act or for normal year-end adjustments) Act), and (iii) fairly presented or will fairly present in all material respects the consolidated financial position of the Company Buyer and its Subsidiaries as of the dates thereof and the consolidated results of its their operations and cash flows for the periods indicated, all in accordance with GAAP, except that the unaudited interim financial statements were or are subject to normal and recurring year-end adjustments that have not been and are not expected to be material to the Companyadjustments. The unaudited consolidated audited balance sheet of the Company Buyer as of June 30December 31, 2004 2012 is referred to herein as the “Company Buyer Balance Sheet.”
(c) Ernst & Young LLP, the Buyer’s current auditors, is and has been at all times since its engagement by the Buyer (i) “independent” with respect to the Buyer within the meaning of Regulation S-X and (ii) in compliance with subsections (g) through (l) of Section 10A of the Exchange Act (to the extent applicable) and the related rules of the SEC and the Public Company Accounting Oversight Board.
(d) The information included in the Registration Statement or in any Regulation M-A Filing (except, in each case, for information to be supplied in writing to the Buyer by or on behalf of the Company specifically for inclusion in the registration statement on Form S-4 pursuant Registration Statement or specifically for inclusion in any Regulation M-A Filing, as to which the Company Series A Preferred Stock issued in the Merger Buyer makes no representation and the Company Common Stock issuable upon conversion which shall not constitute part of the Company Series A Preferred Stock will be registered under the Securities Act (including any amendments or supplements, the “Registration Statement”), Buyer SEC Documents for purpose of this Agreement) shall not at the time the Registration Statement or any such Regulation M-A Filing is filed with the SEC, at any time it is amended or supplemented, or at the time the Registration Statement is declared effective by the SEC SEC, as applicable, contain any untrue statement of a material fact or omit to state any material fact required to be stated in the Registration Statement therein or necessary in order to make the statements in the Registration Statement therein not misleading. The information included in the Joint Proxy Statement/Prospectus (except for information to be supplied in writing by or on behalf of the Company specifically for inclusion in the joint proxy statement/prospectus (the “Joint Proxy Statement”) to be sent to the stockholders of the Company in connection with the meeting of the Company’s stockholders to consider the adoption of this Agreement and the Merger (the “Company Meeting”) and the Partners in connection with the Fund Consent Solicitation (as herein defined/Prospectus) shall not, on the date the Joint Proxy Statement Statement/Prospectus is first mailed to stockholders of the Company and Buyer or the PartnersCompany, or at the time of the Buyer Meeting or the Company Meeting and at the Effective TimeMeeting, contain any statement which, at such time and in light of the circumstances under which it shall be made, is false or misleading with respect to any material fact, or omit to state any material fact necessary in order to make the statements made in the Joint Proxy Statement Statement/Prospectus not false or misleading; or omit to state any material fact necessary to correct any statement in any earlier communication with respect to the solicitation of proxies for the Company Buyer Meeting or the solicitation of consents in connection with the Fund Consent Solicitation Company Meeting which has become false or misleading. If at any time prior to the Effective Time any event relating to the Company, any Affiliate .
(as defined belowe) As of the Companydate of the Original Merger Agreement, or any officers or directors of (i) neither the Buyer nor any of them, should its Subsidiaries has entered into any transaction that would be discovered by subject to proxy statement disclosure pursuant to Item 404 of Regulation S-K and (ii) neither the Company which should be set forth in an amendment Buyer nor any of its Subsidiaries is a party to the Registration Statement or a supplement to the Proxy Statement, the Company shall promptly inform the Fund. As used in this Agreement, the termany employment agreement.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Palomar Medical Technologies Inc)
SEC Filings; Financial Statements; Information Provided. (a) All forms, reports and other documents Xxxxxx has filed or furnished all SEC Documents required to be filed or furnished by the Company Xxxxxx with the SEC since January 1, 2001 2008. All such SEC Documents (including those that the Company Xxxxxx may file or furnish after the date hereof until the Closing) are referred to herein as the “Company Xxxxxx SEC ReportsDocuments.” Except as set forth in Section 3.4 All of the Company Disclosure ScheduleXxxxxx SEC Documents are publicly available on the SEC’s XXXXX system. Xxxxxx has made available to Galileo copies of all comment letters received by Xxxxxx from the staff of the SEC since January 1, the Company 2008, and all responses to such comment letters by or on behalf of Xxxxxx. All Xxxxxx SEC Reports Documents (ix) were or will be filed or furnished on a timely basis and basis, (iiy) at the time filed, were or will be prepared in compliance in all material respects with the applicable requirements of the Securities Act, and the Exchange ActAct and SOX, as the case may be, and the rules and regulations of the SEC thereunder applicable to such Company Xxxxxx SEC Reports. None of Documents, and (z) did not or will not at the Company SEC Reports when filed, after giving effect to any amendments and supplements thereto time they were or are filed prior to the date hereof, contained or furnished contain any untrue statement of a material fact or omitted omit to state any a material fact required to be stated therein in such Xxxxxx SEC Documents or necessary in order to make the statements thereinin such Xxxxxx SEC Documents, in the light of the circumstances under which they were made, not misleading. None No Subsidiary of Xxxxxx is subject to the reporting requirements of Section 13 or Section 15(d) of the Company’s Subsidiaries has filed, or is obligated to file, any forms, reports, schedules, statements or other documents with the SEC. As used in this Section 3.4(a), the term “filed” shall be broadly construed to include any manner in which a document or information is furnished, supplied or otherwise made available to the SECExchange Act.
(b) Each of the consolidated financial statements (including, in each case, any related notes and schedules) contained or to be contained in Xxxxxx SEC Documents at the Company SEC Reports time filed or furnished (i) complied or will comply as to form in all material respects with applicable accounting requirements and the published rules and regulations of the SEC with respect theretothereto (including Regulation S-X), (ii) were or will be prepared in accordance with generally accepted accounting principles (“GAAP”) GAAP applied on a consistent basis throughout the periods involved and at the dates involved (except as may be indicated in the notes to such financial statements or, in the case of unaudited interim financial statements, as permitted by the SEC on Form 10-Q under the Exchange Act or for normal year-end adjustmentsAct) and (iii) fairly presented or will fairly present the consolidated financial position of the Company Xxxxxx and its Subsidiaries as of the dates thereof and the consolidated results of its operations and cash flows for the periods indicated, consistent with the books and records of Xxxxxx and its Subsidiaries, except that the unaudited interim financial statements were or are subject to normal and recurring year-end adjustments that have which were not been and or are not expected to be material to the Companyin amount or effect. The consolidated, unaudited balance sheet of the Company Xxxxxx as of June 30March 31, 2004 2008 is referred to herein as the “Company Xxxxxx Balance Sheet.”
(c) The information in the Registration Statement to be supplied by or on behalf of Xxxxxx for inclusion or incorporation by reference in the Company Registration Statement or to be included or supplied by or on behalf of Xxxxxx for inclusion in the registration statement on Form S-4 pursuant to which the Company Series any Regulation M-A Preferred Stock issued in the Merger and the Company Common Stock issuable upon conversion of the Company Series A Preferred Stock will be registered under the Securities Act (including any amendments or supplements, the “Registration Statement”)Filing, shall not at the time the Registration Statement or any such Regulation M-A filing is filed with the SEC, at any time it is amended or supplemented, or at the time the Registration Statement is declared effective by the SEC SEC, as applicable, contain any untrue statement of a material fact or omit to state any material fact required to be stated in the Registration Statement therein or necessary in order to make the statements in the Registration Statement therein not misleading. The information to be supplied by the Company or on behalf of Xxxxxx for inclusion or incorporation by reference in the joint proxy statement/prospectus (the “Joint Proxy Statement”) /Prospectus to be sent to the stockholders shareholders of the Company Xxxxxx and Galileo in connection with the meeting of the Company’s stockholders to consider the adoption of this Agreement Xxxxxx Meeting and the Merger (the “Company Galileo Meeting”) and the Partners in connection with the Fund Consent Solicitation (as herein defined) , shall not, on the date the Joint Proxy Statement Statement/Prospectus is first mailed to stockholders shareholders of the Company and the PartnersXxxxxx or Galileo, or at the time of the Company Xxxxxx Meeting and or the Galileo Meeting or at the Effective Time, contain any untrue statement which, at such time and in light of the circumstances under which it shall be made, is false or misleading with respect to any a material fact, fact or omit to state any material fact required to be stated therein or necessary in order to make the statements made in the Joint Proxy Statement Statement/Prospectus, in the light of the circumstances under which they were made, not false or misleading; or omit to state any material fact necessary to correct any statement in any earlier communication with respect to the solicitation of proxies for the Company Xxxxxx Meeting or the solicitation of consents in connection with the Fund Consent Solicitation Galileo Meeting which has become false or misleading. If at any time prior to the Effective Time any event relating to the Company, any Affiliate (as defined below) of the Company, or any officers or directors of any of them, should be discovered by the Company which should be set forth in an amendment to the Registration Statement or a supplement to the Proxy Statement, the Company shall promptly inform the Fund. As used in this Agreement, the term.
Appears in 1 contract
SEC Filings; Financial Statements; Information Provided. (a) All Since January 2, 2011, the Company has filed or otherwise furnished (as applicable) on a timely basis all registration statements, prospectuses, forms, reports reports, definitive proxy statements, schedules and other documents required to be filed or furnished by the Company with the SEC since January 1, 2001 (including those that the Company may file after the date hereof until the Closing) are referred to herein as the “Company SEC Reports.” Except as set forth in Section 3.4 of the Company Disclosure Schedule, the Company SEC Reports (i) were or will be filed on a timely basis and (ii) were or will be prepared in compliance in all material respects with the applicable requirements of it under the Securities Act, and Act or the Exchange Act, as the case may be, applicable together with all certifications required pursuant to the Xxxxxxxx-Xxxxx Act of 2002 (the “Xxxxxxxx-Xxxxx Act”) (such documents and any other documents filed by the Company with the SEC since January 2, 2011 and those filed or furnished through the date of this Agreement, collectively, the “Company SEC Reports”). None As of their respective filing dates or, if supplemented, modified or amended since the Company SEC Reports when filed, after giving effect to any amendments time of filing and supplements thereto filed prior to the date hereof, contained as of the date of the most recent supplement, modification or amendment, the Company SEC Reports (i) 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 made therein, in light of the circumstances under which they were made, not misleading. None misleading and (ii) complied in all material respects with the applicable requirements of the Company’s Subsidiaries has filedExchange Act or the Securities Act, or is obligated to fileas the case may be, any forms, reports, schedules, statements or other documents with and the SECrules and regulations promulgated thereunder and the Xxxxxxxx-Xxxxx Act. As used of the date of this Agreement, there are no outstanding or unresolved comments in this Section 3.4(a), comment letters received from the term “filed” shall be broadly construed to include any manner in which a document SEC or information is furnished, supplied or otherwise made available its staff with respect to the SECCompany.
(b) Each of the consolidated financial statements (including, in each case, any related notes and schedules) contained or to be contained incorporated by reference in the Company SEC Reports (i) complied or will comply as to form in all material respects with applicable accounting requirements and the published rules and regulations Laws of the SEC with respect thereto, (ii) were or will be prepared in all material respects in accordance with generally accepted accounting principles (“GAAP”) GAAP applied on a consistent basis throughout the periods involved (except as may be indicated in the notes to such financial statements orexcept, in the case of unaudited interim financial statements, for normal and recurring year-end adjustments, the absence of footnote disclosures and as may be permitted by the SEC on Form 10-Q Q, Form 8-K or any successor or like form under the Exchange Act or for normal year-end adjustmentsAct) and (iii) fairly presented or will fairly present in all material respects the consolidated financial position of the Company and the Company Subsidiaries as of the dates thereof indicated and the consolidated results of its their operations and cash flows for the periods indicatedindicated (except, except that in the unaudited case of interim financial statements were or are subject to statements, for normal and recurring year-end adjustments adjustments, the absence of footnote disclosures and as may be permitted by the SEC on Form 10-Q, Form 8-K or any successor or like form under the Exchange Act). There are no off-balance sheet arrangements of any type required to be disclosed pursuant to Item 303(a)(4) of Regulation S-K that have not been so described in the Company SEC Reports filed on or after January 2, 2011 and are not expected to be material prior to the Company. The unaudited balance sheet date hereof nor any obligations to enter into any such arrangements.
(c) Section 3.6(c) of the Company Disclosure Schedule sets forth a true and complete list as of June 30the date hereof, 2004 is referred to herein of all letters of credit, surety bonds and other similar credit support instruments used in the operation of the businesses of the Company and the Company Subsidiaries as the “Company Balance Sheetcurrently conducted in excess of $10,000,000 individually.”
(cd) The information to be supplied by the Company for inclusion in the registration proxy statement on Form S-4 pursuant to which the Company Series A Preferred Stock issued in the Merger and the Company Common Stock issuable upon conversion of the Company Series A Preferred Stock will be registered under the Securities Act (including any amendments or supplements, the “Registration Statement”), shall not at the time the Registration Statement is declared effective by filed with the SEC contain any untrue statement of a material fact or omit to state any material fact required to be stated in the Registration Statement or necessary in order to make the statements in the Registration Statement not misleading. The information to be supplied by the Company for inclusion in the joint proxy statement/prospectus (the “Proxy Statement”) to be and sent to the stockholders of the Company in connection with the meeting of the Company’s stockholders Stockholders Meeting (as amended or supplemented from time to consider the adoption of this Agreement time and the Merger (including any document incorporated by reference therein, the “Company MeetingProxy Statement”) and the Partners in connection with the Fund Consent Solicitation (as herein defined) shall not, on the date the Proxy Statement is first mailed to stockholders of the Company and or on any other date of filing with the PartnersSEC, or at the time of the Company Meeting and at the Effective TimeStockholders Meeting, contain any statement whichthat, at such time and in light of the circumstances under which it shall be made, is false or misleading with respect to any material fact, or omit to state any material fact necessary in order to make the statements made in the Proxy Statement therein not false or misleading; misleading in light of the circumstances under which they were or shall be made, or omit to state any material fact necessary to correct any statement in any earlier communication with respect to the solicitation of proxies for the Company Stockholders Meeting or the solicitation of consents in connection with the Fund Consent Solicitation which that has become false or misleading. The Proxy Statement will comply as to form in all material respects with the requirements of the Exchange Act applicable thereto as of the date of such filing with the SEC. If at any time prior to before the Effective Time Stockholders Meeting any fact or event relating to the Company, any Affiliate (as defined below) of the Company, Company or any officers Company Subsidiary that is required by applicable Law to be set forth in an amendment or directors of any of them, supplement to the Proxy Statement should be discovered by the Company which should be set forth in an amendment or should, to the Registration Statement or a supplement to the Proxy StatementCompany’s Knowledge, occur, the Company shall shall, promptly after becoming aware thereof, inform Ultimate Parent of such fact or event.
(e) The Company has established and maintains disclosure controls and procedures and internal controls over financial reporting (as such terms are defined in paragraphs (e) and (f), respectively, of Rule 13a-15 of the FundExchange Act) required by Rule 13a-15 or 15d-15 under the Exchange Act. As used Such disclosure controls and procedures are, as determined by the Company upon an assessment of the effectiveness of such controls as of December 28, 2013, effective to ensure that all information required to be disclosed by the Company or any Company Subsidiary in this Agreementthe reports that the Company 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, including its Chief Executive Officer and Chief Financial Officer, as appropriate to allow timely decisions regarding required disclosure and to make the certifications required pursuant to Sections 302 and 906 of the Xxxxxxxx-Xxxxx Act. Since January 2, 2011, subject to any applicable grace periods, the termCompany and each of its officers and directors have been in compliance in all material respects with (i) the applicable listing and other rules and regulations of the NYSE and (ii) the applicable provisions of the Xxxxxxxx-Xxxxx Act.
Appears in 1 contract
Samples: Merger Agreement (Safeway Inc)
SEC Filings; Financial Statements; Information Provided. (a) All The Company has filed all registration statements, forms, reports and other documents required to be filed by the Company with the SEC since January 1, 2001 2008. All such registration statements, forms, reports and other documents (including those that the Company may file after the date hereof until the Closing) are referred to herein as the “Company SEC Reports.” Except as set forth in Section 3.4 of the Company Disclosure Schedule, the The Company SEC Reports (i) were or will be filed on a timely basis and basis, (ii) were at the time filed, complied, or will be prepared in compliance comply when filed, as to form in all material respects with the applicable requirements of the Securities Act, Act and the Exchange Act, as the case may be, and the rules and regulations of the SEC thereunder applicable to such Company SEC Reports. None of , and (iii) did not or will not at the Company SEC Reports when filed, after giving effect to any amendments and supplements thereto time they were or are filed prior to the date hereof, contained contain any untrue statement of a material fact or omitted omit to state any a material fact required to be stated therein in such Company SEC Reports or necessary in order to make the statements thereinin such Company SEC Reports, in the light of the circumstances under which they were made, not misleading. None No Subsidiary of the Company’s Subsidiaries has filed, or Company is obligated to file, any forms, reports, schedules, statements or other documents with the SEC. As used in this Section 3.4(a), the term “filed” shall be broadly construed to include any manner in which a document or information is furnished, supplied or otherwise made available subject to the SECreporting requirements of Section 13(a) or Section 15(d) of the Exchange Act.
(b) Each of the consolidated financial statements (including, in each case, any related notes and schedules) contained or to be contained in the Company SEC Reports at the time filed (i) complied or will comply as to form in all material respects with applicable accounting requirements and the published rules and regulations of the SEC with respect thereto, (ii) were or will be prepared in accordance with United States generally accepted accounting principles (“GAAP”) applied on a consistent basis throughout the periods involved (except as may be indicated in the notes to such financial statements or, in the case of unaudited interim financial statements, as permitted by the SEC on Form 10-Q under the Exchange Act or for normal year-end adjustments) Act), and (iii) fairly presented or will fairly present in all material respects the consolidated financial position of the Company and its Subsidiaries as of the dates thereof indicated and the consolidated results of its operations and cash flows for the periods indicated, except that the unaudited interim financial statements were or are subject to normal and recurring year-end adjustments that have not been and adjustments, none of which are not expected to be material to have a Material Adverse Effect on the Company. The unaudited consolidated balance sheet of the Company as of June 30December 31, 2004 2008 is referred to herein as the “Company Balance Sheet.”
(c) The information to be supplied by or on behalf of the Company for inclusion in the registration proxy statement on Form S-4 pursuant to which the Company Series A Preferred Stock issued in the Merger and the Company Common Stock issuable upon conversion of the Company Series A Preferred Stock will be registered under the Securities Act (including any amendments or supplements, the “Registration Statement”), shall not at the time the Registration Statement is declared effective by the SEC contain any untrue statement of a material fact or omit to state any material fact required to be stated in the Registration Statement or necessary in order to make the statements in the Registration Statement not misleading. The information to be supplied by the Company for inclusion in the joint proxy statement/prospectus (the “Proxy Statement”) to be sent to the stockholders of the Company (the “Proxy Statement”) in connection with the meeting of the Company’s stockholders to consider the adoption of this Agreement and the Merger (the “Company Meeting”) and the Partners in connection with the Fund Consent Solicitation (as herein defined) Meeting shall not, on the date the Proxy Statement is first mailed to stockholders of the Company and the Partners, or at the time of the Company Meeting and at the Effective TimeMeeting, contain any statement which, at such time and in light of the circumstances under which it shall be made, is false or misleading with respect to any material fact, or omit to state any material fact necessary in order to make the statements made in the Proxy Statement not false or misleadingmisleading in light of the circumstances under which they were or shall be made; or omit to state any material fact necessary to correct any statement in any earlier communication with respect to the solicitation of proxies for the Company Meeting or the solicitation of consents in connection with the Fund Consent Solicitation which has become false or misleading. If at any time prior to the Effective Time Company Meeting any fact or event relating to the Company, any Affiliate (as defined below) of the Company, Company or any officers or directors of any of them, should be discovered by the Company its Affiliates which should be set forth in an amendment to the Registration Statement or a supplement to the Proxy StatementStatement should become Known to an executive officer of the Company, the Company shall shall, promptly after becoming aware thereof, inform the Fund. As used in this Agreement, the termBuyer of such fact or event.
Appears in 1 contract
Samples: Merger Agreement (I Many Inc)
SEC Filings; Financial Statements; Information Provided. (a) All Public Company has filed all registration statements, forms, reports reports, certifications and other documents required to be filed by the Public Company and/or in connection with Merger Sub with the SEC since January 1, 2001 (including 2017. All such registration statements, forms, reports and other documents, as amended prior to the date hereof, and those that the Public Company may file after the date hereof until the Closing) , are referred to herein as the “Public Company SEC Reports.” Except as set forth in Section 3.4 All of the Company Disclosure Schedule, the Public Company SEC Reports (iA) were or will be filed on a timely basis and basis, (iiB) were at the time filed (or if amended prior to the date hereof, when so amended), complied, or will be prepared in compliance comply when filed, as to form in all material respects with the applicable requirements of the Securities Act, Act and the Exchange Act, as the case may be, Act applicable to such Company SEC Reports. None of the Public Company SEC Reports when filed, after giving effect to any amendments and supplements thereto (C) did not or will not at the time they were filed (or if amended prior to the date hereof, contained when so amended) or are filed contain any untrue statement of a material fact or omitted omit to state any a material fact required to be stated therein in such Public Company SEC Reports or necessary in order to make the statements thereinin such Public Company SEC Reports, in the light of the circumstances under which they were made, not misleading. None of the Company’s Subsidiaries has filed, or is obligated to file, in any forms, reports, schedules, statements or other documents with the SEC. As used in this Section 3.4(a), the term “filed” shall be broadly construed to include any manner in which a document or information is furnished, supplied or otherwise made available to the SECmaterial respect.
(b) Each of the consolidated financial statements (including, in each case, any related notes and schedules) contained or to be contained in the Public Company SEC Reports at the time filed (or if amended prior to the date hereof, when so amended) (i) complied or will comply as to form in all material respects with applicable accounting requirements and the published rules and regulations of the SEC with respect thereto, (ii) were or will be prepared in accordance with generally accepted accounting principles (“GAAP”) GAAP applied on a consistent basis throughout the periods involved and at the dates involved (except as may be indicated in the notes to such financial statements or, in the case of unaudited interim financial statements, as permitted by the SEC on Form 10-Q under the Exchange Act or for normal year-end adjustmentsAct) and (iii) fairly presented or will fairly present in all material respects the consolidated financial position of the Public Company and its Subsidiaries as of the dates thereof indicated and the consolidated assets, liabilities, business, financial condition, results of its operations and cash flows for the periods indicated, consistent with the books and records of Public Company and its Subsidiaries, except that the unaudited interim financial statements were or are subject to normal and recurring year-end adjustments that have not been and are not expected to be material to the Companyadjustments. The unaudited consolidated balance sheet of the Public Company as of June 30, 2004 2019 is referred to herein as the “Public Company Balance Sheet.”
(c) The information M&K CPAs PLLC, Public Company’s current auditors, is and has been at all times since its engagement by Public Company (i) “independent” with respect to be supplied by Public Company within the Company for inclusion meaning of Regulation S-X and (ii) in compliance with subsections (g) through (l) of Section 10A of the registration statement on Form S-4 pursuant Exchange Act (to which the Company Series A Preferred Stock issued in the Merger extent applicable) and the Company Common Stock issuable upon conversion related rules of the SEC and the Public Company Series A Preferred Stock will be registered Accounting Oversight Board.
(d) Public Company has established and maintains 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 under the Securities Act (including any amendments or supplements, Exchange Act) as required by Rule 13a-15 under the “Registration Statement”), shall not at the time the Registration Statement is declared effective by the SEC contain any untrue statement of a Exchange Act. Public Company’s disclosure controls and procedures are reasonably designed to ensure that all material fact or omit to state any material fact information required to be stated disclosed by Public Company in the Registration Statement reports that it files or necessary furnishes under the Exchange Act is recorded, processed, summarized and reported within the time periods specified in order the rules and forms of the SEC, and that all such material information is accumulated and communicated to Public Company’s management as appropriate to allow timely decisions regarding required disclosure and to make the statements certifications required pursuant to Sections 302 and 906 of the Xxxxxxxx-Xxxxx Act. Since January 1, 2017, Public Company’s principal executive officer and its principal financial officer have disclosed to Public Company’s auditors and the audit committee of the Public Company Board all known (i) significant deficiencies and material weaknesses in the Registration Statement not misleading. The information design or operation of internal controls over financial reporting that are reasonably likely to be supplied by the Company for inclusion in the joint proxy statement/prospectus (the “Proxy Statement”) to be sent to the stockholders of the Company in connection with the meeting of adverse and materially affect the Company’s stockholders ability to consider record, process, summarize and report financial information, (ii) material weaknesses in the adoption design and operation of this Agreement internal controls over financial reporting, and (iii) any fraud, whether or not material, that involves the management or other employees who have a significant role in the Public Company’s internal controls over financial reporting. Each of the Public Company and its Subsidiaries have materially complied with or substantially addressed such deficiencies, material weaknesses and/or fraud.
(e) Public Company is in compliance in all material respects with the applicable provisions of the Xxxxxxxx-Xxxxx Act and the Merger (Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act. Each required form, report and document containing financial statements that has been filed with or submitted to the “Company Meeting”) SEC was accompanied by any certifications required to be filed or submitted by Public Company’s principal executive officer and principal financial officer pursuant to the Partners in connection with the Fund Consent Solicitation (as herein defined) shall not, on the date the Proxy Statement is first mailed to stockholders of the Company and the PartnersXxxxxxxx-Xxxxx Act and, at the time of filing or submission of each such certification, any such certification complied in all material respects with the applicable provisions of the Xxxxxxxx-Xxxxx Act. Neither Public Company nor any of its executive officers has received written notice from any Governmental Entity challenging or questioning the accuracy, completeness, form or manner of filing of such certifications.
(f) As of the date of this Agreement, the Public Company has timely responded to all comment letters of the staff of the SEC relating to the Public Company SEC Reports, and the SEC has not advised the Public Company that any final responses are inadequate, insufficient or otherwise non-responsive. The Public Company has made available to the Merger Partner true, correct and complete copies of all comment letters, written inquiries and enforcement correspondence between the SEC, on the one hand, and the Public Company and any of its Subsidiaries, on the other hand, occurring since January 1, 2017 and will, reasonably promptly following the receipt thereof, make available to the Company Meeting and at any such correspondence sent or received after the Effective Time, contain any statement which, at such time and in light date hereof. To the knowledge of the circumstances Public Company, as of the date of this Agreement, none of the Public Company SEC Reports is the subject of ongoing SEC review or outstanding SEC comment.
(g) Each of the principal executive officer of the Public Company and the principal financial officer of the Public Company (or each former principal executive officer of the Public Company and each former principal financial officer of the Public Company, as applicable) has made all certifications required by Rule 13a-14 or 15d-14 under which it shall be made, is false the Exchange Act or misleading with respect to any material fact, or omit to state any material fact necessary in order to make Sections 302 and 906 of the statements made in Xxxxxxxx-Xxxxx Act and the Proxy Statement not false or misleading; or omit to state any material fact necessary to correct any statement in any earlier communication rules and regulations of the SEC promulgated thereunder with respect to the solicitation Public Company SEC Reports, and the statements contained in such certifications were true and correct on the date such certifications were made. For purposes of proxies for this Section 4.5(i), “principal executive officer” and “principal financial officer” has the meanings given to such terms in the Xxxxxxxx-Xxxxx Act.
(h) Neither the Public Company Meeting or the solicitation nor any of consents in connection with the Fund Consent Solicitation which has become false or misleading. If at any time prior its Subsidiaries nor, to the Effective Time any event relating to knowledge of the Public Company, any Affiliate (as defined below) director, officer, employee, or internal or external auditor of the Company, Public Company or any officers of its Subsidiaries has received or directors otherwise had or obtained actual knowledge of any substantive material complaint, allegation, assertion or claim, whether written or oral, that the Public Company or any of them, should be discovered by the Company which should be set forth its Subsidiaries has engaged in an amendment to the Registration Statement questionable accounting or a supplement to the Proxy Statement, the Company shall promptly inform the Fund. As used in this Agreement, the termauditing practices.
Appears in 1 contract
SEC Filings; Financial Statements; Information Provided. (a) All VINA has filed all registration statements, forms, reports and other documents required to be filed by VINA with the Company Securities and Exchange Commission ("SEC") since August 10, 2000 and has made available to Larscom copies of all registration statements, forms, reports and other documents (including, without limitation, all certifications and statements required by Rule 13a-14 or 15d-14 under the Exchange Act or Section 906 of the Xxxxxxxx-Xxxxx Act of 2002) filed by VINA with or furnished to the SEC since January 1such date, 2001 all of which (other than the certifications pursuant to said Section 906) are available on the SEC's XXXXX system. All such required registration statements, forms, reports and other documents (including those that the Company VINA may file after the date hereof until the Closing) are referred to herein as the “Company "VINA SEC ReportsREPORTS.” " Except as set forth in Section 3.4 3.6 of the Company VINA Disclosure Schedule, the Company VINA SEC Reports (i) were or will be filed on a timely basis and basis, (ii) at the time filed, were or will be prepared in compliance in all material respects with the applicable requirements of the Securities Act, Act and the Exchange Act, as the case may be, and the rules and regulations of the SEC thereunder applicable to such Company VINA SEC Reports. None of , and (iii) did not or will not at the Company SEC Reports when filed, after giving effect to any amendments and supplements thereto time they were or are filed prior to the date hereof, contained contain any untrue statement of a material fact or omitted omit to state any a material fact required to be stated therein in such VINA SEC Reports or necessary in order to make the statements thereinin such VINA SEC Reports, in the light of the circumstances under which they were made, not misleading. None No Subsidiary of VINA is subject to the reporting requirements of Sections 13(a) or 15(d) of the Company’s Subsidiaries has filed, or is obligated to file, any forms, reports, schedules, statements or other documents with the SEC. As used in this Section 3.4(a), the term “filed” shall be broadly construed to include any manner in which a document or information is furnished, supplied or otherwise made available to the SECExchange Act.
(b) Each of the audited consolidated financial statements (including, in each case, any related notes and schedules) and unaudited interim consolidated financial statements contained or to be contained in the Company VINA SEC Reports at the time filed (i) complied or will comply as to form in all material respects with applicable accounting requirements and the published rules and regulations of the SEC with respect thereto, (ii) were or will be prepared in accordance with United States generally accepted accounting principles (“"GAAP”") applied on a consistent basis throughout the periods involved (except as may be indicated in the notes to such financial statements or, in the case of unaudited interim financial statements, as permitted by the SEC on Form 10-Q under the Exchange Act or for normal year-end adjustmentsAct) and (iii) fairly presented or will fairly present the consolidated financial position of the Company VINA and its Subsidiaries as of the dates thereof indicated and the consolidated results of VINA and its Subsidiaries' operations and cash flows for the periods indicated, consistent with the books and records of VINA and its Subsidiaries, except that the unaudited interim financial statements were or are subject to normal and recurring year-end adjustments that have which were not been and or are not expected to be material to the Companyin amount. The unaudited consolidated, audited balance sheet of the Company VINA as of June 30December 31, 2004 2002 is referred to herein as the “Company Balance Sheet"VINA BALANCE SHEET.”"
(c) The information VINA has previously furnished to Larscom a complete and correct copy of any amendments or modifications, which have not yet been filed with the SEC but which are required to be supplied filed, to agreements, documents or other instruments which previously had been filed by VINA with the Company for inclusion in the registration statement on Form S-4 SEC pursuant to which the Company Series A Preferred Stock issued in the Merger and the Company Common Stock issuable upon conversion of the Company Series A Preferred Stock will be registered under the Securities Act (including any amendments or supplements, the “Registration Statement”), shall not at the time the Registration Statement is declared effective by the SEC contain any untrue statement of a material fact or omit to state any material fact required to be stated in the Registration Statement or necessary in order to make the statements in the Registration Statement not misleading. The information to be supplied by the Company for inclusion in the joint proxy statement/prospectus (the “Proxy Statement”) to be sent to the stockholders of the Company in connection with the meeting of the Company’s stockholders to consider the adoption of this Agreement and the Merger (the “Company Meeting”) and the Partners in connection with the Fund Consent Solicitation (as herein defined) shall not, on the date the Proxy Statement is first mailed to stockholders of the Company and the Partners, at the time of the Company Meeting and at the Effective Time, contain any statement which, at such time and in light of the circumstances under which it shall be made, is false or misleading with respect to any material fact, or omit to state any material fact necessary in order to make the statements made in the Proxy Statement not false or misleading; or omit to state any material fact necessary to correct any statement in any earlier communication with respect to the solicitation of proxies for the Company Meeting or the solicitation of consents in connection with the Fund Consent Solicitation which has become false or misleading. If at any time prior to the Effective Time any event relating to the Company, any Affiliate (as defined below) of the Company, or any officers or directors of any of them, should be discovered by the Company which should be set forth in an amendment to the Registration Statement or a supplement to the Proxy Statement, the Company shall promptly inform the Fund. As used in this Agreement, the termExchange Act.
Appears in 1 contract
SEC Filings; Financial Statements; Information Provided. (a) All The Company has filed all registration statements, forms, reports and other documents required to be filed by the Company with the SEC since January 1, 2001 2002. All such registration statements, forms, reports and other documents (including those that the Company may file after the date hereof until files up to the Closing) ), together with all certifications required pursuant to the Sxxxxxxx-Xxxxx Act of 2002 and the related rules and regulations promulgated under or pursuant to such act (the “Sxxxxxxx-Xxxxx Act”), are referred to herein as the “Company SEC Reports.” Except as set forth to the extent that information contained in Section 3.4 any Company SEC Report filed and publicly available prior to the date of this Agreement has been specifically revised or superseded by a later filed Company SEC Report filed prior to the Company Disclosure Scheduledate of this Agreement, the Company SEC Reports (i) were or will be filed on a timely basis (other than the Company’s Annual Reports on Form 10-K for the fiscal years ending December 31, 2005 and December 31, 2006, and the Company’s Quarterly Reports on Form 10-Q for the fiscal quarters ending September 30, 2005 and March 31, June 30 and September 30, 2006), (ii) were at the time filed, complied, or will be prepared in compliance comply when filed, as to form in all material respects with the applicable requirements of the Securities Act, Act and the Exchange Act, as the case may be, the Sxxxxxxx-Xxxxx Act and the rules and regulations of the SEC thereunder applicable to such Company SEC Reports. None of , and (iii) did not or will not at the Company SEC Reports when filed, after giving effect to any amendments and supplements thereto time they were or are filed prior to the date hereof, contained contain any untrue statement of a material fact or omitted omit to state any a material fact required to be stated therein in such Company SEC Reports or necessary in order to make the statements thereinin such Company SEC Reports, in the light of the circumstances under which they were made, not misleading. None No Subsidiary of the Company is subject to the reporting requirements of Section 13(a) or Section 15(d) of the Exchange Act. The Company has made available to Parent true, correct and complete copies of all correspondence between the SEC, on the one hand, and the Company and any of its Subsidiaries, on the other, since January 1, 2002, including (i) all SEC comment letters and responses to such comment letters by or on behalf of the Company’s Subsidiaries has filed, or is obligated to fileand (ii) any letters, any formscomplaints, reports, schedules, statements or other documents from the SEC or any staff or office of the SEC informing the Company of any inquiry, claim or proceeding (formal, informal or otherwise) or request for documents or information, and all written responses thereto by or on behalf of the Company. To the knowledge of the Company, none of the Company SEC Reports is the subject of ongoing SEC review or outstanding SEC comment. There are no off-balance sheet arrangements as defined in Item 2.03(d) of SEC Form 8-K with the SEC. As used in this Section 3.4(a), the term “filed” shall be broadly construed to include any manner in which a document or information is furnished, supplied or otherwise made available respect to the SECCompany or any of its Subsidiaries that would be required to be reported or set forth in the Company SEC Reports or any such reports required to be filed in the future.
(b) Each Except to the extent that information contained in any Company SEC Report filed and publicly available prior to the date of this Agreement has been specifically revised or superseded by a later filed Company SEC Report filed prior to the date of this Agreement, each of the consolidated financial statements (including, in each case, any related notes and schedules) contained or to be contained in or incorporated by reference in the Company SEC Reports at the time filed or to be filed (i) complied or will comply as to form in all material respects with applicable accounting requirements and the published rules and regulations of the SEC with respect thereto, thereto and (ii) were or will be prepared in accordance with generally accepted accounting principles (“GAAP”) GAAP applied on a consistent basis throughout the periods involved (except as may be indicated in the notes to such financial statements or, in the case of unaudited interim financial statements, as permitted by the SEC on with respect to Form 10-Q under the Exchange Act Act). Except to the extent that information contained in any Company SEC Report filed and publicly available prior to the date of this Agreement has been specifically revised or for normal year-end adjustmentssuperseded by a later filed Company SEC Report filed prior to the date of this Agreement, each of the consolidated balance sheets (including, in each case, any related notes and schedules) and (iii) contained or incorporated by reference in the Company SEC Reports at the time filed fairly presented or will fairly present in all material respects the consolidated financial position of the Company and its Subsidiaries as of the dates thereof indicated and each of the consolidated statements of income and of changes in financial position contained or to be contained or incorporated by reference in the Company SEC Reports (including, in each case, any related notes and schedules) fairly presented in all material respects the consolidated results of operations, retained earnings and changes in financial position, as the case may be, of the Company and its operations and cash flows Subsidiaries for the periods indicatedset forth therein, except that the unaudited interim financial statements were or are subject to normal and recurring year-end adjustments that have not been adjustments.
(c) Except as and are not expected to be material to the Company. The unaudited extent set forth on the consolidated balance sheet of the Company and its consolidated Subsidiaries as at December 31, 2006 (including the notes thereto and related management discussion and analysis) included in the Company’s Annual Report on Form 10-K for the fiscal year ended December 31, 2006, neither the Company nor any Subsidiary has any liability or obligation of June 30any nature (whether accrued, 2004 is referred absolute, contingent or otherwise, and whether or not required to herein be disclosed), except for liabilities and obligations (i) incurred in connection with the transactions contemplated hereby, (ii) incurred in the ordinary course of business and in a manner consistent with past practice since December 31, 2006, or (iii) except as set forth on Section 5.6(c) of the “Company Balance SheetDisclosure Schedule, that have not had, and are not reasonably expected to have, a material adverse impact on the Company and its Subsidiaries, taken as a whole.”
(cd) The information to be supplied by or on behalf of the Company for inclusion in the registration proxy statement on Form S-4 pursuant to which be sent to the Company Series A Preferred Stock issued in the Merger and the Company Common Stock issuable upon conversion stockholders of the Company Series A Preferred Stock will be registered under the Securities Act (including any amendments or supplements, the “Registration Proxy Statement”)) in connection with the Company Meeting will not, shall not on the date it is first mailed to the stockholders of the Company or at the time of the Registration Statement is declared effective by the SEC Company Meeting, contain any untrue statement of a material fact or omit to state any material fact required to be stated in the Registration Proxy Statement or necessary in order to make the statements in the Registration Statement not misleading. The information to be supplied by the Company for inclusion in the joint proxy statement/prospectus (the “Proxy Statement”) to be sent to the stockholders of the Company in connection with the meeting of the Company’s stockholders to consider the adoption of this Agreement and the Merger (the “Company Meeting”) and the Partners in connection with the Fund Consent Solicitation (as herein defined) shall not, on the date the Proxy Statement is first mailed to stockholders of the Company and the Partners, at the time of the Company Meeting and at the Effective Time, contain any statement which, at such time and in light of the circumstances under which it shall be they are made, is false not misleading. The Proxy Statement will comply as to form in all material respects with the provisions of the Exchange Act and the rules and regulations promulgated by the SEC thereunder. The representations and warranties contained in this Section 5.6(d) will not apply to statements or misleading with respect to any material fact, or omit to state any material fact necessary in order to make the statements made omissions included in the Proxy Statement not false or misleading; or omit to state any material fact necessary to correct any statement other filings made with the SEC based upon information furnished in any earlier communication with respect writing to the solicitation Company by Parent or Merger Sub specifically for use in the Proxy Statement.
(e) The Company maintains disclosure controls and procedures and internal control over financial reporting as required under Rule 13a-15(a) promulgated under the Exchange Act. Except as set forth on Section 5.6(e)-1 of proxies for the Company Meeting or Disclosure Schedule, such disclosure controls and procedures and such internal control over financial reporting were effective as of December 31, 2006, and the solicitation of consents in connection same are otherwise reasonably designed to comply with the Fund Consent Solicitation which respective definitions of such controls in Rules 13a-15(e) and (f) promulgated under the Exchange Act. The Company has become false or misleading. If at any time disclosed, based on its most recent evaluation prior to the Effective Time any event relating date of this Agreement, to the Company, any Affiliate (as defined below) ’s auditors and the audit committee of the Company Board (i) any significant deficiencies and material weaknesses in the design or operation of internal controls over financial reporting which are reasonably likely to adversely affect in any material respect 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. The Company has made available to Parent a summary of any such disclosure made by management to the Company’s auditors and audit committee since January 1, 2004, and Section 5.6(e)-1 of the Company Disclosure Schedule sets forth a summary of all current significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting. Except as set forth on Section 5.6(e)-2 of the Company Disclosure Schedule, since January 1, 2004, no current or former employee of the Company or any officers or directors of its Subsidiaries has alleged to any of them, should be discovered by the senior officers of the Company which should be set forth in an amendment to the Registration Statement or a supplement to the Proxy Statement, such Subsidiary that the Company shall promptly inform the Fund. As used or any such Subsidiaries has engaged in this Agreement, the termquestionable or fraudulent accounting or auditing
Appears in 1 contract
SEC Filings; Financial Statements; Information Provided. (a) All Public Company has filed all registration statements, forms, reports reports, certifications and other documents required to be filed by the Public Company with the SEC since January 1, 2001 2006 and has made available to Merger Partner copies of all registration statements, forms, reports, certifications and other documents filed by Public Company with the SEC since January 1, 2006, including all certifications and statements required by (i) Rule 13a-14 or 15d-14 under the Exchange Act or (ii) 18 U.S. C. §1350 (Section 906 of the Sxxxxxxx-Xxxxx Act of 2002 (the “Sarbanes Act”)). All such registration statements, forms, reports, certifications and other documents (including those that the Public Company may file after the date hereof until the Closing) are referred to herein as the “Public Company SEC ReportsDocuments.” Except as set forth in Section 3.4 All Public Company SEC Documents are publicly available on the SEC’s EXXXX system. Public Company has made available to Merger Partner copies of all comment letters received by Public Company from the staff of the Company Disclosure ScheduleSEC since January 1, the 2006 and all responses to such comment letters by or on behalf of Public Company. All Public Company SEC Reports Documents (iA) were or will be filed or deemed filed on a timely basis and basis, (iiB) at the time filed, were or will be prepared in compliance in all material respects with the applicable requirements of the Securities Act, Act and the Exchange Act, as the case may be, and the rules and regulations of the SEC thereunder applicable to such Public Company SEC Reports. None of Documents and (C) did not or will not at the Company SEC Reports when filed, after giving effect to any amendments and supplements thereto time they were or are filed prior to the date hereof, contained contain any untrue statement of a material fact or omitted omit to state any a material fact required to be stated therein in such Public Company SEC Documents or necessary in order to make the statements thereinin such Public Company SEC Documents, in the light of the circumstances under which they were made, not misleading. None No Subsidiary of Public Company is subject to the reporting requirements of Section 13 or Section 15(d) of the Company’s Subsidiaries has filed, or is obligated to file, any forms, reports, schedules, statements or other documents with the SECExchange Act. As used in this Section 3.4(a)4.5, the term “filedfile” shall be broadly construed to include any manner in which a document or information is furnished, supplied or otherwise made available to the SEC.
(b) Each of the consolidated financial statements (including, in each case, any related notes and schedules) contained or to be contained in the Public Company SEC Reports Documents at the time filed (i) complied or will comply as to form in all material respects with applicable accounting requirements and the published rules and regulations of the SEC with respect theretothereto (including, without limitation, Regulation S-X), (ii) were or will be prepared in accordance with generally accepted accounting principles (“GAAP”) GAAP applied on a consistent basis throughout the periods involved and at the dates involved (except as may be indicated in the notes to such financial statements or, in the case of unaudited interim financial statements, as permitted by the SEC on Form 10-Q under the Exchange Act or for normal year-end adjustmentsAct) and (iii) fairly presented or will fairly present the consolidated financial position of the Public Company and its Subsidiaries as of the dates thereof and the consolidated results of its operations and cash flows for the periods indicated, consistent with the books and records of Public Company and its Subsidiaries, except that the unaudited interim financial statements were or are subject to normal and recurring year-end adjustments that have which were not been and are or will not expected to be material to the Companyin amount or effect. The unaudited consolidated balance sheet of the Public Company as of June 30December 31, 2004 2007 contained in Public Company’s Annual Report on Form 10-K, as amended, for the period ended December 31, 2007 (the “Public Company Form 10-K”) filed with the SEC is referred to herein as the “Public Company Balance Sheet.”
(c) Deloitte & Touche LLP, Public Company’s current auditors, is and has been at all times since its engagement by Public Company (i) “independent” with respect to Public Company within the meaning of Regulation S-X and (ii) in compliance with subsections (g) through (l) of Section 10A of the Exchange Act (to the extent applicable) and the related rules of the SEC and the Public Company Accounting Oversight Board.
(d) The information in the Registration Statement to be supplied by or on behalf of Public Company for inclusion or incorporation by reference in the Registration Statement, or to be included or supplied by or on behalf of Public Company for inclusion in the registration statement on Form S-4 pursuant to which the Company Series any Regulation M-A Preferred Stock issued in the Merger and the Company Common Stock issuable upon conversion of the Company Series A Preferred Stock will be registered under the Securities Act (including any amendments or supplements, the “Registration Statement”)Filing, shall not at the time the Registration Statement or any such Regulation M-A Filing is filed with the SEC, at any time it is amended or supplemented or at the time the Registration Statement is declared effective by the SEC SEC, as applicable, contain any untrue statement of a material fact or omit to state any material fact required to be stated in the Registration Statement therein or necessary in order to make the statements in the Registration Statement therein not misleading. The information to be supplied by the or on behalf of Public Company for inclusion in the joint proxy statement/prospectus (the “Proxy Statement”) /Prospectus to be sent to (i) the stockholders of the Public Company in connection with the meeting Public Company Meeting and (ii) the stockholders of Merger Partner, which information shall be deemed to include all information about or relating to Public Company, the Company’s stockholders to consider Public Company Voting Proposals or the adoption of this Agreement and the Merger (the “Public Company Meeting”) and the Partners in connection with the Fund Consent Solicitation (as herein defined) , shall not, on the date the Proxy Statement Statement/Prospectus is first mailed to stockholders of the Public Company and the Partnersor Merger Partner, or at the time of the Public Company Meeting and or at the Effective Time, contain any statement whichthat, at such time and in light of the circumstances under which it shall be made, is false or misleading with respect to any material fact, or omit to state any material fact necessary in order to make the statements made in the Proxy Statement Statement/Prospectus not false or misleading; or omit to state any material fact necessary to correct any statement in any earlier communication with respect to the solicitation of proxies for the Public Company Meeting or the solicitation of consents in connection with the Fund Consent Solicitation which that has become false or misleading. If at any time prior to the Effective Time any fact or event relating to the Company, any Affiliate (as defined below) of the Company, Public Company or any officers or directors of any of them, should be discovered by the Company its Affiliates which should be set forth in an amendment to the Registration Statement or a supplement to the Proxy Statement/Prospectus should be discovered by Public Company or should occur, the Public Company shall promptly inform the Fund. As used in this Agreement, the termMerger Partner of such fact or event.
Appears in 1 contract
SEC Filings; Financial Statements; Information Provided. (a) All Public Company has filed all registration statements, forms, reports reports, certifications and other documents required to be filed by Public Company with the SEC and under applicable Canadian securities laws for a period of at least twelve calendar months immediately preceding the execution of this Agreement. All registration statements, forms, reports and other documents, as amended prior to the date hereof, which have been filed by Public Company with the SEC since January 1, 2001 (including 2019, and those that the Public Company may file after the date hereof until the Closing) Closing with the SEC, are referred to herein as the “Public Company SEC Reports.” Except as set forth in Section 3.4 All of the Company Disclosure Schedule, the Public Company SEC Reports (iA) were or will be filed on a timely basis and basis, (iiB) were at the time filed (or if amended prior to the date hereof, when so amended), complied, or will be prepared in compliance comply when filed, as to form in all material respects with the applicable requirements of the Securities Act, Act and the Exchange Act, as the case may be, Act applicable to such Company SEC Reports. None of the Public Company SEC Reports when filed, after giving effect to any amendments and supplements thereto (C) did not or will not at the time they were filed (or if amended prior to the date hereof, contained when so amended) or are filed contain any untrue statement of a material fact or omitted omit to state any a material fact required to be stated therein in such Public Company SEC Reports or necessary in order to make the statements thereinin such Public Company SEC Reports, in the light of the circumstances under which they were made, not misleading. None of the Company’s Subsidiaries has filed, or is obligated to file, in any forms, reports, schedules, statements or other documents with the SEC. As used in this Section 3.4(a), the term “filed” shall be broadly construed to include any manner in which a document or information is furnished, supplied or otherwise made available to the SECmaterial respect.
(b) Each of the consolidated financial statements (including, in each case, any related notes and schedules) contained or to be contained in the Public Company SEC Reports at the time filed (or if amended prior to the date hereof, when so amended) (i) complied or will comply as to form in all material respects with applicable accounting requirements and the published rules and regulations of the SEC with respect thereto, (ii) were or will be prepared in accordance with generally accepted accounting principles (“GAAP”) GAAP applied on a consistent basis throughout the periods involved and at the dates involved (except as may be indicated in the notes to such financial statements or, in the case of unaudited interim financial statements, as permitted by the SEC on Form 10-Q under the Exchange Act or for normal year-end adjustmentsAct) and (iii) fairly presented or will fairly present in all material respects the consolidated financial position of the Public Company and its Subsidiaries as of the dates thereof indicated and the consolidated results of its operations and cash flows for the periods indicated, except that the unaudited interim financial statements were or are subject to normal and recurring year-end adjustments that have not been and are not expected to be material to the Companyadjustments. The unaudited consolidated balance sheet of the Public Company as of June 30March 31, 2004 2021 is referred to herein as the “Public Company Balance Sheet.”
(c) Xxxxx LLP, Public Company›s current auditors, is and has been at all times since its engagement by Public Company (i) “independent” with respect to Public Company within the meaning of Regulation S-X and (ii) in compliance with subsections (g) through (l) of Section 10A of the Exchange Act (to the extent applicable) and the related rules of the SEC and the Public Company Accounting Oversight Board.
(d) The information in the Registration Statement to be supplied by or on behalf of Public Company for inclusion or incorporation by reference in the Registration Statement or to be included or supplied by or on behalf of Public Company for inclusion in the registration statement on Form S-4 pursuant to which the Company Series any Regulation M-A Preferred Stock issued in the Merger and the Company Common Stock issuable upon conversion of the Company Series A Preferred Stock will be registered under the Securities Act (including any amendments or supplements, the “Registration Statement”)Filing, shall not at the time the Registration Statement or any such Regulation M-A filing is filed with the SEC, at any time it is amended or supplemented or at the time the Registration Statement is declared effective by the SEC SEC, as applicable, contain any untrue statement of a material fact or omit to state any material fact required to be stated in the Registration Statement therein or necessary in order to make the statements in the Registration Statement therein not misleading. The information to be supplied by the or on behalf of Public Company for inclusion in the joint proxy statement/prospectus (the “Proxy Statement”) /Prospectus to be sent to the stockholders Shareholders of the Public Company and Merger Partner in connection with the meeting of the Company’s stockholders to consider the adoption of this Agreement and the Merger (the “Public Company Meeting”) and , which information shall be deemed to include all information about or relating to Public Company, the Partners in connection with Public Company Voting Proposals or the Fund Consent Solicitation (as herein defined) Public Company Meeting, shall not, on the date the Proxy Statement Statement/Prospectus is first mailed to stockholders Shareholders of the Public Company and the Partnersor Merger Partner, or at the time of the Public Company Meeting and or at the Effective Time, contain any statement whichthat, at such time and in light of the circumstances under which it shall be made, is false or misleading with respect to any material fact, or omit to state any material fact necessary in order to make the statements made in the Proxy Statement Statement/Prospectus not false or misleading; or omit to state any material fact necessary to correct any statement in any earlier communication with respect to the solicitation of proxies for the Public Company Meeting or the solicitation of consents in connection with the Fund Consent Solicitation which that has become false or misleading. If at any time prior to the Effective Time any event relating to the Company, any Affiliate (as defined below) of the Company, or any officers or directors of any of them, should be discovered by the Company which should be set forth in an amendment to the Registration Statement or a supplement to the Proxy Statement, the Company shall promptly inform the Fund. As used in this Agreement, the term.
Appears in 1 contract
Samples: Merger Agreement (Akerna Corp.)
SEC Filings; Financial Statements; Information Provided. (a) All The Parent has filed all registration statements, forms, reports and other documents required to be filed by the Company Parent with the SEC since January 12, 2001 2021. All such registration statements, forms, reports and other documents (including exhibits and all other information incorporated therein and any supplements or amendments thereto and those registration statements, forms, reports and other documents that the Company Parent may file after the date hereof until the Closing) are referred to herein as the “Company Parent SEC Reports.” Except as set forth in Section 3.4 of the Company Disclosure Schedule, the Company ”. The Parent SEC Reports (i) were or will be filed on a timely basis and basis, (ii) were at the time filed, complied, or will be prepared in compliance in all material respects with the applicable requirements of the Securities Act, and the Exchange Act, as the case may be, applicable to such Company SEC Reports. None of the Company SEC Reports when filed, after giving effect to any amendments and supplements thereto filed prior to the date hereof, 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. None of the Company’s Subsidiaries has filed, or is obligated to file, any forms, reports, schedules, statements or other documents with the SEC. As used in this Section 3.4(a), the term “filed” shall be broadly construed to include any manner in which a document or information is furnished, supplied or otherwise made available to the SEC.comply
(b) Each of the consolidated financial statements (including, in each case, any related notes and schedules) contained or to be contained in the Company Parent SEC Reports at the time filed (i) complied or will comply as to form in all material respects with applicable accounting requirements and the published rules and regulations of the SEC with respect thereto, (ii) were or will be prepared in accordance with generally accepted accounting principles (“GAAP”) GAAP applied on a consistent basis throughout the periods involved (except as may be indicated in the notes to such financial statements or, in the case of unaudited interim financial statements, as permitted by the SEC on Form 10-Q under the Exchange Act or for normal year-end adjustments) Act), and (iii) fairly presented or will fairly present in all material respects the consolidated financial position of the Company Parent and its Subsidiaries as of the dates thereof indicated and the consolidated results of its operations and cash flows for the periods indicated, except that the unaudited interim financial statements were or are subject to normal and recurring year-end adjustments that have not been and are not expected to be material to the Company. The unaudited balance sheet of the Company as of June 30, 2004 is referred to herein as the “Company Balance Sheetaudit adjustments.”
(c) The Parent is in compliance in all material respects with the applicable provisions of the Xxxxxxxx-Xxxxx Act. Each required form, report and document containing financial statements that has been filed with or submitted to the SEC was accompanied by any certifications required to be filed or submitted by the Parent’s principal executive officer and principal financial officer pursuant to the Xxxxxxxx-Xxxxx Act and, at the time of filing or submission of each such certification, any such certification complied in all material respects with the applicable provisions of the Xxxxxxxx-Xxxxx Act.
(d) The Parent maintains disclosure controls and procedures required by Rule 13a-15 or 15d-15 under the Exchange Act. Such disclosure controls and procedures are designed to provide reasonable assurance that all information concerning the Parent that could have a material effect on the financial statements is made known on a timely basis to the individuals responsible for the preparation of the Parent’s filings with the SEC and other public disclosure documents. The Parent is in compliance in all material respects with the applicable listing and other rules and regulations of NYSE. The Parent has established and at all times since January 2, 2021 has maintained 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 Parent’s financial reporting and the preparation of Parent financial statements for external purposes in accordance with GAAP. The Parent’s principal executive officer and its principal financial officer have disclosed, based on the most recent evaluation of internal control over financial reporting prior to the date of this Agreement,
(i) all known significant deficiencies and material weaknesses in the design or operation of internal controls over financial reporting that are reasonably likely to adversely affect in any material respect the Parent’s ability to record, process, summarize and report financial information, and (ii) any known fraud, whether or not material, that involves management or other employees who have a significant role in the Parent’s internal control over financial reporting. Since January 2, 2021, any material change in internal control over financial reporting and any significant deficiency or material weakness in the design or operation of internal control over financial reporting required to be disclosed in any Parent SEC Report or in any form, report or document filed by the Parent with the SEC has been so disclosed and each significant deficiency and material weakness previously so disclosed has been remediated in all material respects.
(e) None of the information supplied or to be supplied by the Company Parent for inclusion or incorporation by reference in the registration statement on Form S-4 pursuant Proxy Statement will, at the date it is first mailed to which the Company Series A Preferred Stock issued in the Merger and the Company Common Stock issuable upon conversion shareholders of the Company Series A Preferred Stock will be registered under the Securities Act (including any amendments or supplements, the “Registration Statement”), shall not and at the time of the Registration Statement is declared effective by the SEC Company Meeting, contain any untrue statement of a material fact or omit to state any material fact required to be stated in the Registration Statement therein or necessary in order to make the statements in the Registration Statement not misleading. The information to be supplied by the Company for inclusion in the joint proxy statement/prospectus (the “Proxy Statement”) to be sent to the stockholders of the Company in connection with the meeting of the Company’s stockholders to consider the adoption of this Agreement and the Merger (the “Company Meeting”) and the Partners in connection with the Fund Consent Solicitation (as herein defined) shall nottherein, on the date the Proxy Statement is first mailed to stockholders of the Company and the Partners, at the time of the Company Meeting and at the Effective Time, contain any statement which, at such time and in light of the circumstances under which it shall be they are made, not misleading. Subject to the accuracy of the first sentence of Section 2.5(f), the Registration Statement will comply as to form in all material respects with the provisions of the Exchange Act and the rules and regulations thereunder; provided, however, that no representation is false made by the Parent or misleading Merger Sub with respect to any material fact, or omit to state any material fact necessary in order to make the statements made in the Proxy Statement not false or misleading; or omit to state any material fact necessary to correct any statement in any earlier communication with respect to the solicitation of proxies for the Company Meeting or the solicitation of consents in connection with the Fund Consent Solicitation which has become false or misleading. If at any time prior to the Effective Time any event relating to the Company, any Affiliate (as defined below) of the Company, or any officers or directors of any of them, should be discovered therein based on information supplied by the Company which should be set forth in an amendment to the Registration Statement specifically for inclusion or a supplement to the Proxy Statement, the Company shall promptly inform the Fund. As used in this Agreement, the termincorporation by reference therein.
Appears in 1 contract
Samples: Merger Agreement (Hni Corp)
SEC Filings; Financial Statements; Information Provided. (a) All The Buyer has filed all registration statements, forms, reports and other documents required to be filed by the Company Buyer with the SEC since January 1, 2001 1998 and all such registration statements, forms, reports and other documents are available on XXXXX. All such registration statements, forms, reports and other documents (including those that the Company Buyer may file after the date hereof until the Closing) are referred to herein as the “Company "Buyer SEC Reports.” Except as set forth in Section 3.4 of the Company Disclosure Schedule, the Company " The Buyer SEC Reports (i) were or will be filed on a timely basis and basis, (ii) at the time filed, were or will be prepared in compliance in all material respects with the applicable requirements of the Securities Act, Act and the Exchange Act, as the case may be, and the rules and regulations of the SEC thereunder applicable to such Company Buyer SEC Reports. None of , and (iii) did not or will not at the Company SEC Reports when filed, after giving effect to any amendments and supplements thereto time they were or are filed prior to the date hereof, contained contain any untrue statement of a material fact or omitted omit to state any a material fact required to be stated therein in such Buyer SEC Reports or necessary in order to make the statements thereinin such Buyer SEC Reports, in the light of the circumstances under which they were made, not misleading. None of the Company’s Subsidiaries has filed, or is obligated to file, any forms, reports, schedules, statements or other documents with the SEC. As used in this Section 3.4(a), the term “filed” shall be broadly construed to include any manner in which a document or information is furnished, supplied or otherwise made available to the SEC.
(b) Each of the consolidated financial statements (including, in each case, any related notes and schedules) contained or to be contained in the Company Buyer SEC Reports at the time filed (i) complied or will comply as to form in all material respects with applicable accounting requirements and the published rules and regulations of the SEC with respect thereto, (ii) were or will be prepared in accordance with generally accepted accounting principles (“GAAP”) GAAP applied on a consistent basis throughout the periods involved (except as may be indicated in the notes to such financial statements or, in the case of unaudited statements, as permitted by the SEC on Form 10-Q under the Exchange Act or for normal year-end adjustmentsand the published rules and regulations of the SEC thereunder) and (iii) fairly presented or will fairly present in accordance with GAAP the consolidated financial position of the Company Buyer and its Subsidiaries as of the dates thereof and the consolidated results of its operations and cash flows for the periods indicated, consistent with the books and records of the Buyer and its Subsidiaries, except that the unaudited interim financial statements were or are subject to normal and recurring year-end adjustments that have which were not been and or are not expected to be material to the Companyin amount. The consolidated, unaudited balance sheet of the Company Buyer as of June 30April 1, 2004 2001 is referred to herein as the “Company "Buyer Balance Sheet".”
(c) The information to be in the Registration Statement (except for information supplied by the Company for inclusion in the registration statement on Form S-4 pursuant Registration Statement, as to which the Company Series A Preferred Stock issued in the Merger Buyer makes no representation and the Company Common Stock issuable upon conversion which shall not constitute part of the Company Series A Preferred Stock will be registered under the Securities Act (including any amendments or supplements, the “Registration Statement”), Buyer SEC Reports for purposes of this Agreement) shall not at the time the Registration Statement is declared effective by the SEC contain any untrue statement of a material fact or omit to state any material fact required to be stated in the Registration Statement or necessary in order to make the statements in the Registration Statement not misleading. The information related to the Buyer to be supplied by or on behalf of the Company Buyer for inclusion or incorporation by reference in the joint proxy statement/prospectus (the “Joint Proxy Statement”) to be sent to the stockholders of the Company in connection with the meeting of the Company’s stockholders to consider the adoption of this Agreement and the Merger (the “Company Meeting”) and the Partners in connection with the Fund Consent Solicitation (as herein defined) /Prospectus shall not, on the date the Joint Proxy Statement Statement/Prospectus is first mailed to stockholders of the Company and Buyer or the PartnersCompany, at the time of the Company Buyer Stockholders Meeting and the Company Stockholders Meeting or at the Effective Time, contain any statement which, at such time and in light of the circumstances under which it shall be made, is false or misleading with respect to any material fact, or omit to state any material fact necessary in order to make the statements made in the Joint Proxy Statement Statement/Prospectus not false or misleading; or omit to state any material fact necessary to correct any statement in any earlier communication with respect to the solicitation of proxies for the Company Buyer Stockholders Meeting or the solicitation of consents in connection with the Fund Consent Solicitation Company Stockholders Meeting which has become false or misleading. If at any time prior to the Effective Time any event relating to the Company, any Affiliate (as defined below) of the Company, Buyer or any of its Affiliates, officers or directors of any of them, should be discovered by the Company Buyer which should be set forth in an amendment to the Registration Statement or a supplement to the Joint Proxy Statement/Prospectus, the Company Buyer shall promptly inform the Fund. As used in this Agreement, the termCompany.
Appears in 1 contract
SEC Filings; Financial Statements; Information Provided. (a) All Public Company has filed all registration statements, forms, reports reports, certifications and other documents required to be filed by the Public Company with the SEC since January 1for a period of at least twelve calendar months immediately preceding the execution of this Agreement. All such registration statements, 2001 (including forms, reports and other documents, as amended prior to the date hereof, and those that the Public Company may file after the date hereof until the Closing) , are referred to herein as the “Public Company SEC Reports.” Except as set forth in Section 3.4 All of the Company Disclosure Schedule, the Public Company SEC Reports (iA) were or will be filed on a timely basis and basis, (iiB) were at the time filed (or if amended prior to the date hereof, when so amended), complied, or will be prepared in compliance comply when filed, as to form in all material respects with the applicable requirements of the Securities Act, Act and the Exchange Act, as the case may be, Act applicable to such Company SEC Reports. None of the Public Company SEC Reports when filed, after giving effect to any amendments and supplements thereto (C) did not or will not at the time they were filed (or if amended prior to the date hereof, contained when so amended) or are filed contain any untrue statement of a material fact or omitted omit to state any a material fact required to be stated therein in such Public Company SEC Reports or necessary in order to make the statements thereinin such Public Company SEC Reports, in the light of the circumstances under which they were made, not misleading. None of the Company’s Subsidiaries has filed, or is obligated to file, in any forms, reports, schedules, statements or other documents with the SEC. As used in this Section 3.4(a), the term “filed” shall be broadly construed to include any manner in which a document or information is furnished, supplied or otherwise made available to the SECmaterial respect.
(b) Each of the consolidated financial statements (including, in each case, any related notes and schedules) contained or to be contained in the Public Company SEC Reports at the time filed (or if amended prior to the date hereof, when so amended) (i) complied or will comply as to form in all material respects with applicable accounting requirements and the published rules and regulations of the SEC with respect thereto, (ii) were or will be prepared in accordance with generally accepted accounting principles (“GAAP”) GAAP applied on a consistent basis throughout the periods involved and at the dates involved (except as may be indicated in the notes to such financial statements or, in the case of unaudited interim financial statements, as permitted by the SEC on Form 10-Q under the Exchange Act or for normal year-end adjustmentsAct) and (iii) fairly presented or will fairly present in all material respects the consolidated financial position of the Public Company and its subsidiaries as of the dates thereof indicated and the consolidated results of its operations and cash flows for the periods indicated, except that the unaudited interim financial statements were or are subject to normal and recurring year-end adjustments that have not been and are not expected to be material to the Companyadjustments. The unaudited consolidated balance sheet of the Public Company as of June 30, 2004 2022 is referred to herein as the “Public Company Balance Sheet.”
(c) The information in the Registration Statement to be supplied by or on behalf of Public Company for inclusion or incorporation by reference in the Registration Statement or supplied by or on behalf of Public Company for inclusion in the registration statement on Form S-4 pursuant to which the Company Series any Regulation M-A Preferred Stock issued in the Merger and the Company Common Stock issuable upon conversion of the Company Series A Preferred Stock will be registered under the Securities Act (including any amendments or supplements, the “Registration Statement”)Filing, shall not at the time the Registration Statement or any such Regulation M-A filing is filed with the SEC, at any time it is amended or supplemented or at the time the Registration Statement is declared effective by the SEC SEC, as applicable, contain any untrue statement of a material fact or omit to state any material fact required to be stated in the Registration Statement therein or necessary in order to make the statements in the Registration Statement therein not misleading. The information to be supplied by the or on behalf of Public Company for inclusion in the joint proxy statement/prospectus (the “Proxy Statement”) /Prospectus to be sent to the stockholders of the Public Company and Merger Partner in connection with the meeting of the Company’s stockholders to consider the adoption of this Agreement and the Merger (the “Public Company Meeting”) and , which information shall be deemed to include all information about or relating to Public Company, the Partners in connection with Required Public Company Voting Proposal, the Fund Consent Solicitation Other Public Company Voting Proposals (as herein definedapplicable) or the Public Company Meeting, shall not, on the date the Proxy Statement Statement/Prospectus is first mailed to stockholders of the Public Company and the Partnersor Merger Partner, or at the time of the Public Company Meeting and or at the Effective Time, contain any statement whichthat, at such time and in light of the circumstances under which it shall be made, is false or misleading with respect to any material fact, or omit to state any material fact necessary in order to make the statements made in the Proxy Statement Statement/Prospectus not false or misleading; or omit to state any material fact necessary to correct any statement in any earlier communication with respect to the solicitation of proxies for the Public Company Meeting or the solicitation of consents in connection with the Fund Consent Solicitation which that has become false or misleading. If at any time prior to the Effective Time any event relating to the Company, any Affiliate (as defined below) of the Company, or any officers or directors of any of them, should be discovered by the Company which should be set forth in an amendment to the Registration Statement or a supplement to the Proxy Statement, the Company shall promptly inform the Fund. As used in this Agreement, the term.
Appears in 1 contract
Samples: Merger Agreement (IMARA Inc.)
SEC Filings; Financial Statements; Information Provided. (a) All The Company has filed all registration statements, forms, reports reports, certifications and other documents required to be filed by the Company with the SEC since it became an SEC reporting company, and has made available to the Parent copies of all registration statements, forms, reports, certifications and other documents filed by the Company with the SEC since January 1, 2001 2006, including all certifications and statements required by (i) Rule 13a-14 or 15d-14 of the Exchange Act or (ii) 18 U.S.C. §1350 (Section 906 of the Xxxxxxxx-Xxxxx Act of 2002 (the “Sarbanes Act”)). All such registration statements, forms, reports, certifications and other documents (including those that the Company may file after the date hereof until the Closing) are referred to herein as the “Company SEC ReportsDocuments.” Except as set forth in Section 3.4 All of the Company Disclosure Schedule, SEC Documents are publicly available on the SEC’s XXXXX system. The Company has made available to the Parent copies of all comment letters received by the Company from the staff of the SEC Reports since January 1, 2006 and all responses to such comment letters by or on behalf of the Company. The Company SEC Documents (iA) were or will be filed on a timely basis and basis, (iiB) at the time filed, were or will be prepared in compliance as to form in all material respects with the applicable requirements of the Securities Act, Act and the Exchange Act, as the case may be, and the rules and regulations of the SEC thereunder applicable to such Company SEC Reports. None of Documents, and (C) did not or will not at the Company SEC Reports when filed, after giving effect to any amendments and supplements thereto time they were or are filed prior to the date hereof, contained contain any untrue statement of a material fact or omitted omit to state any a material fact required to be stated therein in such Company SEC Documents or necessary in order to make the statements thereinin such Company SEC Documents, in the light of the circumstances under which they were made, not misleading. None No Subsidiary of the Company’s Subsidiaries has filed, Company is subject to the reporting requirements of Section 13 or is obligated to file, any forms, reports, schedules, statements or other documents with Section 15(d) of the SECExchange Act. As used in this Section 3.4(a)4.5, the term “filedfile” shall be broadly construed to include any manner in which a document or information is furnished, supplied or otherwise made available to the SEC.
(b) Each of the consolidated financial statements (including, in each case, any related notes and schedules) contained or to be contained in the Company SEC Reports Documents at the time filed (i) complied or will comply as to form in all material respects with applicable accounting requirements and the published rules and regulations of the SEC with respect theretothereto (including Regulation S-X), (ii) were or will be prepared in accordance with United States generally accepted accounting principles (“GAAP”) applied on a consistent basis throughout the periods involved and at the dates involved (except as may be indicated in the notes to such financial statements or, in the case of unaudited statements, as permitted by the SEC on Form 10-Q under the Exchange Act or for normal year-end adjustments) Act), and (iii) fairly presented in all material respects or will fairly present in all material respects the consolidated financial position of the Company and its Subsidiaries as of the dates thereof and the consolidated results of its operations and cash flows for the periods indicated, consistent with the books and records of the Company and its Subsidiaries, except that the unaudited interim financial statements were or are subject to normal and recurring year-end adjustments that have which were not been and are or will not expected to be material to the Companyin amount or effect. The consolidated, unaudited balance sheet of the Company as of June 30March 31, 2004 2009 is referred to herein as the “Company Balance Sheet.”
(c) To the Company’s knowledge, Ernst & Young LLP, the Company’s current auditors, is and has been at all times since its engagement by the Company (i) “independent” with respect to the Company within the meaning of Regulation S-X and (ii) in compliance with subsections (g) through (l) of Section 10A of the Exchange Act (to the extent applicable) and the related rules of the SEC and the Public Company Accounting Oversight Board.
(d) The information to be supplied in writing by or on behalf of the Company for inclusion or incorporation by reference in the registration statement Schedule TO or the Offer Documents, on Form S-4 pursuant the date the Schedule TO is filed with the SEC and on the date the Offer Documents are first published, sent or given to which the Company Series A Preferred Stock issued in the Merger and the Company Common Stock issuable upon conversion stockholders of the Company Series A Preferred Stock will be registered under the Securities Act (including any amendments or supplements, the “Registration Statement”), shall not at the time the Registration Statement is declared effective by the SEC contain any untrue statement of a material fact or omit to state any material fact required to be stated in the Registration Statement therein or necessary in order to make the statements in the Registration Statement therein not misleading. The information to be supplied by the Company for inclusion in the joint proxy statement/prospectus Proxy Statement (the “Proxy Statement”if required) to be sent to the stockholders of the Company in connection with the meeting of the Company’s stockholders to consider the adoption of this Agreement and the Merger (the “Company Meeting”) and the Partners in connection with the Fund Consent Solicitation (as herein defined) shall not, on the date the Proxy Statement is first mailed published, sent or given to stockholders of the Company and the Partners, at the time of the Company Meeting Meeting, shall comply in all material respects with the provisions of applicable securities laws and at the Effective Time, shall not contain any statement which, at such time and in light of the circumstances under which it shall be made, is false or misleading with respect to any material fact, or omit to state any material fact necessary in order to make the statements made in the Proxy Statement not false or misleadingmisleading in light of the circumstances under which they were or shall be made; or omit to state any material fact necessary to correct any statement in any earlier communication with respect to the solicitation of proxies for the Company Meeting or the solicitation of consents in connection with the Fund Consent Solicitation which has become false or misleading; provided that no representation or warranty is made pursuant to this Section 4.5(d) with respect to any written information provided by or on behalf of the Parent or the Purchaser for inclusion in the Proxy Statement. If at any time prior to the Effective Time any fact or event relating to the Company, any Affiliate (as defined below) of the Company, Company or any of its Affiliates, officers or directors of any of them, should be discovered by the Company which should be set forth in an amendment to the Registration Statement Schedule TO or a supplement to the Offer Documents or the Proxy Statement, the Company shall promptly inform the Fund. As used in this Agreement, the termParent.
Appears in 1 contract
Samples: Merger Agreement (Idm Pharma, Inc.)
SEC Filings; Financial Statements; Information Provided. (a) All The Company has filed or furnished, as applicable, all registration statements, forms, reports and other documents required to be filed by the Company with the SEC since January 1, 2001 2006. All such registration statements, forms, reports and other documents (including all amendments or supplements thereto and those that the Company may file or furnish after the date hereof until the Closing) are referred to herein as the “Company SEC Reports.” Except as set forth in Section 3.4 of the Company Disclosure Schedule, the The Company SEC Reports (i) were or will be filed or furnished on a timely basis and basis, (ii) were at the time filed or furnished, complied, or will be prepared in compliance comply when filed or furnished, as to form in all material respects with the applicable requirements of the Securities Act, Act and the Exchange Act, as the case may be, and the rules and regulations of the SEC thereunder applicable to such Company SEC Reports. None of Reports and (iii) including any financial statements or schedules included or incorporated by reference therein, did not or will not at the Company SEC Reports when filed, after giving effect to any amendments and supplements thereto time they were or are filed prior to the date hereof, contained or furnished contain any untrue statement of a material fact or omitted omit to state any a material fact required to be stated therein in such Company SEC Reports or necessary in order to make the statements thereinin such Company SEC Reports, in the light of the circumstances under which they were made, not misleading. None No executive officer of the Company’s Subsidiaries Company has filed, failed to make the certifications required of him or her under Section 302 or 906 of SOX with respect to any Company SEC Reports. No Subsidiary of the Company is obligated to file, any forms, reports, schedules, statements or other documents with the SEC. As used in this Section 3.4(a), the term “filed” shall be broadly construed to include any manner in which a document or information is furnished, supplied or otherwise made available subject to the SECreporting requirements of Section 13(a) or Section 15(d) of the Exchange Act.
(b) Each of the audited and unaudited consolidated financial statements (including, in each case, any related notes and schedules) contained (or incorporated by reference) or to be contained (or incorporated by reference) in the Company SEC Reports at the time filed (i) complied or will comply as to form in all material respects with applicable accounting requirements and the published rules and regulations of the SEC with respect thereto, (ii) were or will be prepared in accordance with United States generally accepted accounting principles (“GAAP”) applied on a consistent basis throughout the periods involved (except as may be indicated in the notes to such financial statements or, in the case of unaudited interim financial statements, as permitted by the SEC on Form 10-Q under the Exchange Act or for normal year-end adjustments) Act), and (iii) fairly presented or will fairly present in all material respects the consolidated financial position of the Company and its Subsidiaries as of the dates thereof indicated and the consolidated income, stockholders’ equity, results of its operations and changes in consolidated financial position or cash flows for the periods indicated, except that the unaudited interim financial statements were or are subject to normal and recurring year-year end adjustments that have not been and are not expected to be material to in amount or effect. All of the Company’s Subsidiaries are consolidated for accounting purposes. The consolidated, unaudited balance sheet of the Company as of June 30, 2004 2009 is referred to herein as the “Company Balance Sheet.”
(c) The information to be supplied by or on behalf of the Company for inclusion in the registration proxy statement on Form S-4 pursuant to which be sent to the stockholders of the Company Series A Preferred Stock issued (the “Proxy Statement”) in connection with the Merger Company Meeting, including all information about or relating to the Company, the Company Board Recommendation, the Company Voting Proposal and the Company Common Stock issuable upon conversion Meeting, shall not, on the date the Proxy Statement is first mailed to stockholders of the Company, or at the time of the Company Series A Preferred Stock will be registered under the Securities Act (including any amendments Meeting or supplements, the “Registration Statement”), shall not at the time the Registration Statement is declared effective by the SEC Effective Time, contain any untrue statement of a material fact or omit to state any material fact required to be stated in the Registration Statement therein or necessary in order to make the statements in the Registration Statement not misleading. The information to be supplied by the Company for inclusion in the joint proxy statement/prospectus (the “Proxy Statement”) to be sent to the stockholders of the Company in connection with the meeting of the Company’s stockholders to consider the adoption of this Agreement and the Merger (the “Company Meeting”) and the Partners in connection with the Fund Consent Solicitation (as herein defined) shall notmade therein, on the date the Proxy Statement is first mailed to stockholders of the Company and the Partners, at the time of the Company Meeting and at the Effective Time, contain any statement which, at such time and in light of the circumstances under which it shall be they are made, is false or misleading with respect to any material fact, or omit to state any material fact necessary in order to make the statements made in the Proxy Statement not false or misleading; or omit to state any material fact necessary to correct any statement in any earlier communication with respect to the solicitation of proxies for the Company Meeting or the solicitation of consents in connection with the Fund Consent Solicitation which has become false or misleading. If at any time prior to the Effective Time Company Meeting any fact or event relating to the Company, any Affiliate (as defined below) of the Company, Company or any officers or directors of any of them, should be discovered by the Company its Affiliates which should be set forth in an amendment to the Registration Statement or a supplement to the Proxy StatementStatement should be discovered by the Company, the Company shall promptly inform the FundBuyer of such fact or event. As used The Proxy Statement and any other filings made by the Company will comply as to form in this Agreementall material respects with the provisions of the Exchange Act and the rules and regulations of the SEC promulgated thereunder.
(d) The Company maintains disclosure controls and procedures required by Rule 13a-15 or 15d-15 under the Exchange Act. Such disclosure controls and procedures are effective to ensure that all material information concerning the Company and its Subsidiaries is made known on a timely basis to the chief executive officer and the chief financial officer and the individuals responsible for the preparation of the Company’s filings with the SEC and other public disclosure documents. The Company is, and has at all times since January 1, 2009 been, in compliance with the applicable listing and other rules and regulations of The NASDAQ Capital Market, and has not since January 1, 2009 received any notice from The NASDAQ Capital Market or any similar body asserting any non-compliance with any of such rules and regulations.
(e) To the Company’s Knowledge, the termCompany’s outside auditor has at all times since the date of enactment of 18 U.S.C. § 1350 (Section 906 of the Sarbanes Oxley Act of 2002 and the regulations promulgated thereunder (“SOX”)) been: (i) a registered public accounting firm (as defined in Section 2(a)(12) of SOX); (ii) “independent” with respect to the Company within the meaning of Regulation S-X under the Exchange Act; and (iii) to the Company’s Knowledge, in compliance with subsections (g) through (l) of Section 10A of the Exchange Act and the rules and regulations promulgated by the SEC thereunder and related or companion rules and regulations promulgated by the Public Company Accounting Oversight Board thereunder. The term “Company’s Knowledge” means the actual knowledge of the individuals identified in Section 3.5(e) of the Company Disclosure Letter, after reasonable inquiry by such individuals.
Appears in 1 contract
Samples: Merger Agreement (Nyfix Inc)
SEC Filings; Financial Statements; Information Provided. (a) All The Company has filed all registration statements, forms, reports and other documents required to be filed by the Company with the SEC since January 1, 2001 2002. All such registration statements, forms, reports and other documents (including those that the Company may file after the date hereof until the Closing) are referred to herein as the “"Company SEC Reports.” Except as set forth in Section 3.4 of the Company Disclosure Schedule, the " The Company SEC Reports (i) were or will be filed on a timely basis and basis, (ii) were at the time filed, complied, or will be prepared in compliance comply when filed, as to form in all material respects with the applicable requirements of the Securities Act, Act and the Exchange Act, as the case may be, and the rules and regulations of the SEC thereunder applicable to such Company SEC Reports. None of , and (iii) did not or will not at the Company SEC Reports when filed, after giving effect to any amendments and supplements thereto time they were or are filed prior to the date hereof, contained contain any untrue statement of a material fact or omitted omit to state any a material fact required to be stated therein in such Company SEC Reports or necessary in order to make the statements thereinin such Company SEC Reports, in the light of the circumstances under which they were made, not misleading. None No Subsidiary of the Company’s Subsidiaries has filed, or Company is obligated to file, any forms, reports, schedules, statements or other documents with the SEC. As used in this Section 3.4(a), the term “filed” shall be broadly construed to include any manner in which a document or information is furnished, supplied or otherwise made available subject to the SECreporting requirements of Section 13(a) or Section 15(d) of the Exchange Act.
(b) Each of the consolidated financial statements (including, in each case, any related notes and schedules) contained or to be contained in the Company SEC Reports at the time filed (i) complied or will comply as to form in all material respects with applicable accounting requirements and the published rules and regulations of the SEC with respect thereto, (ii) were or will be prepared in accordance with United States generally accepted accounting principles (“"GAAP”") applied on a consistent basis throughout the periods involved (except as may be indicated in the notes to such financial statements or, in the case of unaudited interim financial statements, as permitted by the SEC on Form 10-Q under the Exchange Act or for normal year-end adjustments) Act), and (iii) fairly presented or will fairly present in all material respects the consolidated financial position of the Company and its Subsidiaries as of the dates thereof indicated and the consolidated results of its operations and cash flows for the periods indicated, except that the unaudited interim financial statements were or are subject to normal and recurring year-end adjustments that have not been and adjustments. All of the Subsidiaries of the Company are not expected to be material to the Companyconsolidated for accounting purposes. The unaudited consolidated, audited balance sheet of the Company as of June 30December 31, 2004 is referred to herein as the “"Company Balance Sheet.”"
(c) The Except with respect to information to be supplied by or on behalf of the Company Buyer for inclusion in the registration proxy statement on Form S-4 pursuant to which the Company Series A Preferred Stock issued in the Merger and the Company Common Stock issuable upon conversion of the Company Series A Preferred Stock will be registered under the Securities Act (including any amendments or supplements, the “Registration Statement”), shall not at the time the Registration Statement is declared effective by the SEC contain any untrue statement of a material fact or omit to state any material fact required to be stated in the Registration Statement or necessary in order to make the statements in the Registration Statement not misleading. The information to be supplied by the Company for inclusion in the joint proxy statement/prospectus (the “Proxy Statement”) to be sent to the stockholders of the Company in connection with the meeting Company Meeting (the "Proxy Statement"), the Proxy Statement and any other soliciting materials of the Company’s stockholders to consider the adoption of this Agreement and the Merger (the “Company Meeting”) and the Partners in connection with the Fund Consent Solicitation (as herein defined) shall not, on the date the Proxy Statement is or such materials are first mailed to stockholders of the Company and the PartnersCompany, at the time of the Company Meeting and or at the Effective Time, contain any statement which, at such time and in light of the circumstances under which it shall be made, is false or misleading with respect to any material fact, or omit omits to state any material fact necessary in order to make the statements made in the Proxy Statement therein not false or misleading; or omit to state any material fact necessary to correct any statement in any earlier communication with respect to the solicitation of proxies for the Company Meeting or the solicitation of consents in connection with the Fund Consent Solicitation which has become false or misleading. If at any time prior to the Effective Time Company Meeting any fact or event relating to the Company, any Affiliate (as defined below) of the Company, Company or any officers or directors of any of them, its Affiliates which should be set forth in a supplement to the Proxy Statement should be discovered by the Company which or should be set forth in an amendment to the Registration Statement or a supplement to the Proxy Statementoccur, the Company shall shall, promptly after becoming aware thereof, inform the FundBuyer of such fact or event.
(d) The Company maintains disclosure controls and procedures required by Rule 13a-15 or 15d-15 under the Exchange Act. As used Such disclosure controls and procedures are designed to ensure that all material information concerning the Company is made known on a timely basis to the individuals responsible for the preparation of the Company's filings with the SEC and other public disclosure documents. The Company has disclosed, based on its most recent evaluations, to the Company's outside auditors and the audit committee of the Board of Directors of the Company (A) all significant deficiencies and material weaknesses in this Agreementthe design or operation of internal control over financial reporting (as defined in Rule 13a-15(f) of the Exchange Act) which are known to the Company and reasonably likely to adversely affect the Company's ability to record, process, summarize and report financial data and (B) any fraud, whether or not material, known to the termCompany that involves management or other employees who have a significant role in the Company's internal control over financial reporting. The Company is in compliance with the applicable listing and other rules and regulations of The NASDAQ National Market.
(e) The Company has made available to the Buyer a complete and correct copy of any exhibits, annexes, attachments, supplements, amendments or modifications that have not been filed with the SEC to all exhibits to the Annual Report on Form 10-K filed by the Company with the SEC on March 16, 2005 that have requested by the Buyer.
Appears in 1 contract
Samples: Merger Agreement (Doubleclick Inc)
SEC Filings; Financial Statements; Information Provided. (a) All The Parent has filed all registration statements, forms, reports reports, certifications and other documents required to be filed by the Company Parent with the SEC since January 1, 2001 (including 2018. All such registration statements, forms, reports and other documents, as amended prior to the date hereof, and those that the Company Parent may file after the date hereof until the Closing) , are referred to herein as the “Company Parent SEC Reports.” Except as set forth in Section 3.4 All of the Company Disclosure Schedule, the Company Parent SEC Reports (iA) were or will be filed on a timely basis and basis, (iiB) were at the time filed (or if amended prior to the date hereof, when so amended), complied, or will be prepared in compliance comply when filed, as to form in all material respects with the applicable requirements of the Securities Act, Act and the Exchange Act, as the case may be, Act applicable to such Company SEC Reports. None of the Company Parent SEC Reports when filed, after giving effect to any amendments and supplements thereto (C) did not or will not at the time they were filed (or if amended prior to the date hereof, contained when so amended) or are filed contain any untrue statement of a material fact or omitted omit to state any a material fact required to be stated therein in such Parent SEC Reports or necessary in order to make the statements thereinin such Parent SEC Reports, in the light of the circumstances under which they were made, not misleading. None of the Company’s Subsidiaries has filed, or is obligated to file, in any forms, reports, schedules, statements or other documents with the SEC. As used in this Section 3.4(a), the term “filed” shall be broadly construed to include any manner in which a document or information is furnished, supplied or otherwise made available to the SECmaterial respect.
(b) Each of the consolidated financial statements (including, in each case, any related notes and schedules) contained or to be contained in the Company Parent SEC Reports at the time filed (or if amended prior to the date hereof, when so amended) (i) complied or will comply as to form in all material respects with applicable accounting requirements and the published rules and regulations of the SEC with respect thereto, (ii) were or will be prepared in accordance with generally accepted accounting principles (“GAAP”) GAAP applied on a consistent basis throughout the periods involved and at the dates involved (except as may be indicated in the notes to such financial statements or, in the case of unaudited interim financial statements, as permitted by the SEC on Form 10-Q under the Exchange Act or for normal year-end adjustments) Act), and (iii) fairly presented or will fairly present in all material respects the financial position of the Company Parent as of the dates thereof indicated and the assets, liabilities, business, financial condition, results of its operations and cash flows for the periods indicated, consistent with the books and records of Parent, except that the unaudited interim financial statements were or are subject to normal and recurring year-end adjustments that have not been as permitted by GAAP and are not expected to the applicable rules and regulations of the SEC (but only if the effect of such adjustments would not, individually or in the aggregate, be material to the Companymaterial). The unaudited balance sheet of the Company Parent as of June 30December 31, 2004 2021 is referred to herein as the “Company Parent Balance Sheet.”
(c) The Bxxxxx PLLP, Parent’s current auditors, is and has been at all times since its engagement by Parent (i) “independent” with respect to Parent within the meaning of Regulation S-X and (ii) in compliance with subsections (g) through (1) of Section 10A of the Exchange Act (to the extent applicable) and the related rules of the SEC and the Public Company Accounting Oversight Board.
(d) None of the information supplied or to be supplied by or on behalf of the Company Parent or the Merger Sub for inclusion or incorporation by reference in the registration statement on Form S-4 pursuant to which the Company Series Registration Statement or any Regulation M-A Preferred Stock issued in the Merger and the Company Common Stock issuable upon conversion of the Company Series A Preferred Stock will be registered under the Securities Act (including any amendments or supplementsFiling will, the “Registration Statement”), shall not at the time the Registration Statement or any Regulation M-A Filing is declared filed with the SEC, and at any time it is amended or supplemented or at the time the Registration Statement becomes effective by under the SEC Securities Act, contain any untrue statement of a material fact or omit to state any material fact required to be stated in the Registration Statement therein or necessary in order to make the statements in the Registration Statement therein not misleading. The None of the information supplied or to be supplied by or on behalf of the Company Parent or the Merger Sub for inclusion or incorporation by reference in the joint proxy statement/prospectus (the “Proxy Statement”) to be sent to the stockholders of the Company in connection with the meeting of the Company’s stockholders to consider the adoption of this Agreement and the Merger (the “Company Meeting”) and the Partners in connection with the Fund Consent Solicitation (as herein defined) shall not/Consent/Prospectus will, on at the date the Proxy Statement it is first mailed to stockholders of the Company and the Partners, Parent’s shareholders or at the time of the Company Parent Shareholders Meeting and or at the Effective Timetime of any amendment or supplement thereof, contain any untrue statement which, at such time and in light of the circumstances under which it shall be made, is false or misleading with respect to any a material fact, fact or omit to state any material fact necessary in order to make the statements made therein, in light of the circumstances under which they were made, not misleading. The Proxy Statement not false Statement/Consent/Prospectus will comply as to form in all material respects with the requirements of the Exchange Act. None of the information supplied or misleading; to be supplied by or on behalf of the Parent or the Merger Sub for inclusion or incorporation by reference in any SEC filing relating to the PIPE Investment or in any documents or other materials provided by the Parent in connection therewith shall, at the time any such filing is made with the SEC or provided to potential investors or third parties in connection therewith, or at any time it is amended or supplemented or, if it is a registration statement, at the time it becomes effective under the Securities Act, contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(e) The Parent has established and maintains 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 under the Exchange Act) as required by Rule 13a-15 under the Exchange Act. Parent’s disclosure controls and procedures are reasonably designed to ensure that all material information required to be disclosed by Parent 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 material information is accumulated and communicated to Parent’s management as appropriate to allow timely decisions regarding required disclosure and to make the certifications required pursuant to Sections 302 and 906 of the Sxxxxxxx-Xxxxx Act. Since January 1, 2018, the Parent’s principal executive officer and its principal financial officer have disclosed to the Parent’s auditors and the audit committee of the Parent Board all known (i) significant deficiencies and material weaknesses in the design or operation of internal controls over financial reporting that are reasonably likely to adversely and materially affect the Company’s ability to record, process, summarize and report financial information, (ii) material weaknesses in the design and operation of internal controls over financial reporting, and (iii) any fraud, whether or not material, that involves the management or other employees who have a significant role in the Parent’s internal controls over financial reporting. The Parent has materially complied with or substantially addressed any such deficiencies, material weaknesses or fraud.
(f) The Parent is in compliance in all material respects with the applicable provisions of the Sxxxxxxx-Xxxxx Act and the Dxxx-Fxxxx Xxxx Street Reform and Consumer Protection Act. Each required form, report and document containing financial statements that has been filed with or submitted to the SEC was accompanied by any certifications required to be filed or submitted by Parent’s principal executive officer and principal financial officer pursuant to the Sxxxxxxx-Xxxxx Act and, at the time of filing or submission of each such certification, any such certification complied in all material respects with the applicable provisions of the Sxxxxxxx-Xxxxx Act and the statements contained in such certifications were true and correct on the date such certifications were made. Neither Parent nor any statement of its executive officers has received written notice from any Governmental Authority challenging or questioning the accuracy, completeness, form or manner of filing of such certifications.
(g) The issued and outstanding shares of Parent Common Stock are registered pursuant to Section 12(b) of the Exchange Act and are listed for trading on the Nasdaq under the symbol “ELSE.” The Parent is in compliance in all material respects with the applicable listing and other rules and regulations of Nasdaq. The Parent has not received any earlier communication notice of noncompliance or deficiencies with any applicable listing or other rules and regulations of Nasdaq, and no fact or circumstance exists that, to the Knowledge of the Parent, would reasonably be expected to result in such notice of noncompliance or deficiency as of the date hereof or within one year of the Closing Date (provided, if the sole noncompliance or deficiency is failure to comply with the $1.00 minimum bid price, then such noncompliance or deficiency shall be disregarded provided it can reasonably be cured by a reverse stock split within such one year period). There is no Action pending or, to the knowledge of Parent, threatened against Parent by the Nasdaq or the SEC with respect to any intention by such entity to deregister the solicitation Parent Common Stock or terminate the listing of proxies for Parent on the Company Meeting Nasdaq Capital Market. None of Parent or any of its Affiliates has taken any action in an attempt to terminate the solicitation of consents in connection with the Fund Consent Solicitation which has become false or misleading. If at any time prior to the Effective Time any event relating to the Company, any Affiliate (as defined below) registration of the CompanyParent Common Stock under the Exchange Act.
(h) The Parent is not an “investment company” within the meaning of the Investment Company Act of 1940, or any officers or directors as amended.
(i) As of any the date of them, should be discovered by the Company which should be set forth in an amendment to the Registration Statement or a supplement to the Proxy Statement, the Company shall promptly inform the Fund. As used in this Agreement, the termParent has timely responded to all comment letters of the staff of the SEC relating to the Parent SEC Reports, and the SEC has not advised the Parent that any final responses are inadequate, insufficient or otherwise non-responsive. The Parent has made available to the Company true, correct and complete copies of all comment letters, written inquiries and enforcement correspondence between the SEC, on the one hand, and the Parent, on the other hand, occurring since January 1, 2017 and will, reasonably promptly following the receipt thereof, make available to the Company any such correspondence sent or received after the date hereof. To the Knowledge of the Parent, as of the date of this Agreement, none of the Parent SEC Reports is the subject of ongoing SEC review or outstanding SEC comment.
Appears in 1 contract
SEC Filings; Financial Statements; Information Provided. (a) All The Company has filed all registration statements, forms, reports and other documents required to be filed by the Company with the SEC since January 1, 2001 2004 and has made available to the Parent copies of all registration statements, forms, reports and other documents filed by the Company with the SEC since such date, all of which are publicly available on the SEC's EDGAR system. All such registration statements, forms, reports and otxxx xocuments (including those that the Company may file after the date hereof until the Closing) are referred to herein as the “"Company SEC Reports.” Except as set forth in Section 3.4 of the Company Disclosure Schedule, the " The Company SEC Reports (i) were or will be filed on a timely basis and basis, (ii) at the time filed, were or will be prepared in compliance in all material respects with the applicable requirements of the Securities Act, Act and the Exchange Act, as the case may be, and the rules and regulations of the SEC thereunder applicable to such Company SEC Reports. None of , and (iii) did not or will not at the Company SEC Reports when filed, after giving effect to any amendments and supplements thereto time they were or are filed prior to the date hereof, contained contain any untrue statement of a material fact or omitted omit to state any a material fact required to be stated therein in such Company SEC Reports or necessary in order to make the statements thereinin such Company SEC Reports, in the light of the circumstances under which they were made, not misleading. None No Subsidiary of the Company’s Subsidiaries has filed, or Company is obligated to file, any forms, reports, schedules, statements or other documents with the SEC. As used in this Section 3.4(a), the term “filed” shall be broadly construed to include any manner in which a document or information is furnished, supplied or otherwise made available subject to the SECreporting requirements of Section 13(a) or Section 15(d) of the Exchange Act.
(b) Each of the consolidated financial statements (including, in each case, any related notes and schedules) contained or to be contained in the Company SEC Reports at the time filed (i) complied or will comply as to form in all material respects with applicable accounting requirements and the published rules and regulations of the SEC with respect thereto, (ii) were or will be prepared in accordance with United States generally accepted accounting principles (“"GAAP”") applied on a consistent basis throughout the periods involved (except as may be indicated in the notes to such financial statements or, in the case of unaudited interim financial statements, as permitted by the SEC on Form 10-Q under the Exchange Act or for normal year-end adjustmentsAct) and (iii) fairly presented or will fairly present the consolidated financial position of the Company and its Subsidiaries as of the dates thereof indicated and the consolidated results of its operations and cash flows for the periods indicated, consistent with the books and records of the Company and its Subsidiaries, except that the unaudited interim financial statements do not contain footnotes and were or are subject to normal and recurring year-end adjustments that have not been and are not expected to be material to the Companyadjustments. The consolidated, unaudited balance sheet of the Company as of June 30March 31, 2004 2005 is referred to herein as the “"Company Balance Sheet.”"
(c) The information to be supplied by or on behalf of the Company for inclusion or incorporation by reference in the registration statement on Form S-4 to be filed by the Parent pursuant to which the Company Series A Preferred shares of Parent Common Stock issued in connection with the Merger and the Company Common Stock issuable upon conversion of the Company Series A Preferred Stock will shall be registered under the Securities Act (including any amendments or supplements, the “"Registration Statement”"), or to be included or supplied by or on behalf of the Company for inclusion in any filing pursuant to Rule 165 and Rule 425 under the Securities Act or Rule 14a-12 under the Exchange Act (each a "Regulation M-A Filing"), shall not at the time the Registration Statement or any Regulation M-A Filing is filed with the SEC, at any time the Registration Statement is amended or supplemented, or at the time the Registration Statement is declared effective by the SEC (as applicable), contain any untrue statement of a material fact or omit to state any material fact required to be stated in the Registration Statement therein or necessary in order to make the statements in the Registration Statement therein not misleading. The information to be supplied by or on behalf of the Company for inclusion in the joint proxy statement/prospectus (the “Proxy Statement”) to be sent to the stockholders of the Company and the Parent (the "Joint Proxy Statement/Prospectus") in connection with (i) the meeting of the Company’s 's stockholders to consider the adoption Company Voting Proposal (the "Company Stockholders Meeting"), and (ii) the meeting of this Agreement and the Parent's stockholders (the "Parent Stockholders Meeting") to consider the issuance of shares of Parent Common Stock pursuant to the Merger (the “Company Meeting”) and the Partners in connection with the Fund Consent Solicitation (as herein defined"Parent Voting Proposal") shall not, on the date the Joint Proxy Statement Statement/Prospectus is first mailed to stockholders of the Company and or the PartnersParent, or at the time of the Company Stockholders Meeting and or the Parent Stockholders Meeting or at the Effective Time, contain any statement which, at such time and in light of the circumstances under which it shall be made, is false or misleading with respect to any material fact, or omit to state any material fact necessary in order to make the statements made in the Joint Proxy Statement Statement/Prospectus not false or misleading; or omit to state any material fact necessary to correct any statement in any earlier communication with respect to the solicitation of proxies for the Company Stockholders Meeting or the solicitation of consents in connection with the Fund Consent Solicitation Parent Stockholders Meeting which has become false or misleading. If at any time prior to the Effective Time any fact or event relating to the Company, any Affiliate (as defined below) of the Company, Company or any officers or directors of any of them, should be discovered by the Company its Affiliates which should be set forth in an amendment to the Registration Statement or a supplement to the Joint Proxy Statement/Prospectus should be discovered by the Company or should occur, the Company shall promptly inform the Fund. As used in this Agreement, the termParent of such fact or event.
Appears in 1 contract
Samples: Merger Agreement (Clinical Data Inc)
SEC Filings; Financial Statements; Information Provided. (a) All The Company has filed all registration statements, forms, reports and other documents required to be filed by the Company with the SEC since January 1, 2001 2004. All such registration statements, forms, reports and other documents (including those that the Company may file after the date hereof until the ClosingClosing and including all documents incorporated by reference in such registration statements, forms, reports and other documents) are referred to herein as the “Company SEC Reports.” Except as set forth in Section 3.4 of the Company Disclosure Schedule, the The Company SEC Reports (i) were or will be filed on a timely basis and basis, (ii) were at the time filed, complied, or will be prepared in compliance comply when filed, as to form in all material respects with the applicable requirements of the Securities Act, Act and the Exchange Act, as the case may be, and the rules and regulations of the SEC thereunder applicable to such Company SEC Reports. None of , and (iii) did not or will not at the Company SEC Reports when filed, after giving effect to any amendments and supplements thereto time they were or are filed prior to the date hereof, contained contain any untrue statement of a material fact or omitted omit to state any a material fact required to be stated therein in such Company SEC Reports or necessary in order to make the statements thereinin such Company SEC Reports, in the light of the circumstances under which they were made, not misleading. The Company has made available to Buyer true, correct and complete copies of all substantive written correspondence between the SEC, on the one hand, and the Company and its Subsidiaries on the other hand since January 1, 2004. As of the date of this Agreement, there are no outstanding or unresolved comments in comment letters received from the SEC staff. To the Company’s Knowledge, as of the date of this Agreement, none of the Company SEC Reports is the subject of ongoing SEC review or outstanding SEC comment. None of the Company’s Subsidiaries has filedis required to file any form, or is obligated to filereport, any formsregistration, reports, schedules, statements statement or other documents document with the SEC. As used in this Section 3.4(a), the term “filed” shall be broadly construed to include any manner in which a document or information is furnished, supplied or otherwise made available to the SEC.
(b) Each of the consolidated financial statements (including, in each case, any related notes and schedules) contained or to be contained in the Company SEC Reports at the time filed (i) complied or will comply as to form in all material respects with applicable accounting requirements and the published rules and regulations of the SEC with respect thereto, (ii) were was or will be prepared in accordance with United States generally accepted accounting principles (“GAAP”) applied on a consistent basis throughout the periods involved (except as may be indicated in the notes to such financial statements or, in the case of unaudited interim financial statements, as permitted by the SEC on Form 10-Q under the Exchange Act or for normal year-end adjustments) Act), and (iii) fairly presented or will fairly present in all material respects the consolidated financial position of the Company and its Subsidiaries as of the dates thereof indicated and the consolidated results of its their operations and cash flows for the periods indicated, except that the unaudited interim financial statements were or are subject to normal and recurring year-end adjustments that have not been and are not expected to be material to adjustments. All of the Company’s Subsidiaries are consolidated for accounting purposes. The consolidated unaudited balance sheet of the Company as of June September 30, 2004 2006, which is contained in the last quarterly report on Form 10-Q filed by the Company with the SEC before the date hereof, is referred to herein as the “Company Balance Sheet.”
(c) The information letter to be supplied by the Company for inclusion in the registration stockholders, notice of meeting, proxy statement on Form S-4 pursuant to which the Company Series A Preferred Stock issued in the Merger and the Company Common Stock issuable upon conversion forms of the Company Series A Preferred Stock will be registered under the Securities Act (including any amendments or supplements, the “Registration Statement”), shall not at the time the Registration Statement is declared effective by the SEC contain any untrue statement of a material fact or omit to state any material fact required to be stated in the Registration Statement or necessary in order to make the statements in the Registration Statement not misleading. The information to be supplied by the Company for inclusion in the joint proxy statement/prospectus (the “Proxy Statement”) to be sent to the stockholders of the Company Company, including any amendments or supplements and any schedules or other materials incorporated by reference therein (the “Proxy Statement”) in connection with the meeting of the Company’s stockholders to consider the adoption of this Agreement and the Merger (the “Company Meeting”) and the Partners in connection with the Fund Consent Solicitation (as herein defined) Meeting shall not, on the date the Proxy Statement is first mailed to stockholders of the Company and the PartnersCompany, at the time of the Company Meeting and or at the Effective Time, contain any statement which, at such time and in light of the circumstances under which it shall be made, is false or misleading with respect to any material fact, or omit to state any material fact necessary in order to make the statements made in the Proxy Statement not false or misleadingmisleading in light of the circumstances under which they were or shall be made; or omit to state any material fact necessary to correct any statement in any earlier communication with respect to the solicitation of proxies for the Company Meeting or the solicitation of consents in connection with the Fund Consent Solicitation which has become false or misleading, in each case other than information supplied by or on behalf of the Buyer specifically for inclusion therein. The Proxy Statement will comply as to form in all material respects with the provisions of the Exchange Act and the applicable rules and regulations of the SEC promulgated thereunder. If at any time prior to the Effective Time Company Meeting any fact or event relating to the Company, any Affiliate (as defined below) of the Company, Company or any officers or directors of any of them, its Affiliates which should be set forth in a supplement to the Proxy Statement should be discovered by the Company which or should be set forth in an amendment to the Registration Statement or a supplement to the Proxy Statementoccur, the Company shall shall, promptly after becoming aware thereof, inform the FundBuyer of such fact or event.
(d) The Company is in compliance in all material respects with the applicable provisions of the Xxxxxxxx-Xxxxx Act of 2002 (the “Xxxxxxxx-Xxxxx Act”). As used Each required form, report and document containing financial statements that has been filed with or submitted to the SEC since July 21, 2003 was accompanied by the certifications required to be filed or submitted by the Company’s chief executive officer and chief financial officer pursuant to the Xxxxxxxx-Xxxxx Act and the applicable rules and regulations promulgated thereunder and, at the time of filing or submission of each such certification, such certification complied in this Agreementall material respects with the applicable provisions of the Xxxxxxxx-Xxxxx Act and the rules and regulations promulgated thereunder. The Company’s principal executive officer and principal financial officer have disclosed, based on their most recent evaluation of internal control over financial reporting, to the termCompany’s auditors and the audit committee of the Company Board (or persons performing the equivalent functions): (A) all significant deficiencies and material weaknesses within their knowledge in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the Company’s ability to record, process, summarize and report financial information; and (B) any fraud that involves management or other employees who have a significant role in the Company’s internal control over financial reporting. The Company has not identified and its auditors have not notified the Company of any significant deficiencies or material weaknesses in the design or operation of the internal controls over financial reporting except as disclosed in the Company SEC Reports filed prior to the date hereof.
(e) The Company maintains disclosure controls and procedures required by Rule 13a-15 or 15d-15 under the Exchange Act. Such disclosure controls and procedures are effective to ensure that all material information concerning the Company is made known on a timely basis to the individuals responsible for the preparation of the Company’s filings with the SEC and other public disclosure documents. The Company is in compliance in all material respects with the applicable listing and other rules and regulations of The New York Stock Exchange.
Appears in 1 contract
Samples: Merger Agreement (Keane, Inc.)
SEC Filings; Financial Statements; Information Provided. (a) All The Company has filed all registration statements, forms, reports and other documents required to be filed by the Company with the SEC since January 1, 2001 2005. All such registration statements, forms, reports and other documents (including those that the Company may file after the date hereof until the Closing) are referred to herein as the “Company SEC Reports.” Except as set forth in Section 3.4 of the Company Disclosure Schedule, the The Company SEC Reports (i) were or will be filed on a timely basis and or within applicable extension periods; (ii) were at the time filed, complied, or will be prepared in compliance comply when filed, as to form in all material respects with the applicable requirements of the Securities Act, Act and the Exchange Act, as the case may be, and the rules and regulations of the SEC thereunder applicable to such Company SEC Reports. None of ; and (iii) did not or will not at the Company SEC Reports when filed, after giving effect to any amendments and supplements thereto time they were or are filed prior to the date hereof, contained contain any untrue statement of a material fact or omitted omit to state any a material fact required to be stated therein in such Company SEC Reports or necessary in order to make the statements thereinin such Company SEC Reports, in the light of the circumstances under which they were made, not misleading. None of the Company’s Subsidiaries has filed, or is obligated to file, any forms, reports, schedules, statements or other documents with the SEC. As used in this Section 3.4(a), the term “filed” shall be broadly construed to include any manner in which a document or information is furnished, supplied or otherwise made available except to the SECextent corrected prior to the date of this Agreement by a subsequently filed Company SEC Report.
(b) Each of the consolidated financial statements (including, in each case, any related notes and schedules) contained or to be contained in the Company SEC Reports at the time filed (i) complied or will comply as to form in all material respects with applicable accounting requirements and the published rules and regulations of the SEC with respect thereto, (ii) were or will be prepared in accordance with generally accepted accounting principles (“GAAP”) GAAP applied on a consistent basis throughout the periods involved (except as may be indicated in the notes to such financial statements or, in the case of unaudited interim financial statements, as permitted by the SEC on Form 10-Q or Form 8-K under the Exchange Act or for normal year-end adjustments) Act), and (iii) fairly presented or will fairly present in all material respects the consolidated financial position of the Company and its Subsidiaries as of the dates thereof indicated and the consolidated results of its operations and cash flows for the periods indicated, except that the unaudited interim financial statements were or are subject to normal and recurring year-end adjustments that have the Company does not been and are not expected expect to be material to material, individually or in the Companyaggregate. The unaudited consolidated, audited balance sheet of the Company as of June 30December 31, 2004 2006 is referred to herein as the “Company Balance Sheet.”
(c) The information to be supplied by the Company for inclusion in the registration statement Registration Statement on Form S-4 pursuant (or any successor form thereto) to which be filed by the Parent with the SEC in connection with the issuance of Parent Common Stock in the Asset Sale (the “S-4 Registration Statement”) and the information supplied by the Company Series A Preferred for inclusion in the Registration Statement on Form S-3 (or any successor form thereto), or such other form as the Parent shall be eligible to use at the time of filing to register the resale of Parent Common Stock by the Company, to be filed by the Parent with the SEC in connection with the resale by the Company of the Parent Common Stock issued to it by the Parent in the Merger and Asset Sale (the Company Common Stock issuable upon conversion of “Resale Registration Statement” and, together with the Company Series A Preferred Stock will be registered under the Securities Act (including any amendments or supplementsS-4 Registration Statement, the “Registration StatementStatements”), ) shall not at the time the Registration Statement is declared effective by Statements are filed with the SEC and at the time they become effective under the Securities Act contain any untrue statement of a material fact or omit to state any material fact required to be stated in the Registration Statement therein or necessary in order to make the statements in the Registration Statement therein not misleading. The information to be supplied by the Company (including, for such purpose, the information contained in the Company SEC Reports) for inclusion or incorporation by reference in the joint proxy statement/prospectus to be filed with the SEC as part of the S-4 Registration Statement and to be sent to the shareholders of the Company (the “Proxy Statement”) to be sent to the stockholders of the Company in connection with the meeting of the Company’s stockholders to consider the adoption of this Agreement and the Merger (the “Company Meeting”) and the Partners in connection with the Fund Consent Solicitation (as herein defined) Meeting shall not, on the date the Proxy Statement is first mailed to stockholders shareholders of the Company and the PartnersCompany, at the time of the Company Meeting and at or on the Effective TimeClosing Date, contain any statement whichthat, at such time and in light of the circumstances under which it shall be made, is false or misleading with respect to any material fact, or omit to state any material fact required to be stated therein or necessary in order to make the statements made in the Proxy Statement not false or misleading; misleading in light of the circumstances under which they were or shall be made, or omit to state any material fact required to be stated therein necessary to correct any statement in any earlier communication with respect to the solicitation of proxies for the Company Meeting or the solicitation of consents in connection with the Fund Consent Solicitation which that has become false or misleading. If at any time prior to the Effective Time Company Meeting any fact or event relating to the Company, any Affiliate (as defined below) of the Company, or any officers or directors of any of them, should be discovered by the Company which that should be set forth in an amendment to the S-4 Registration Statement or in a supplement to the Proxy StatementStatement should be discovered by the Company or should occur, the Company shall shall, promptly after becoming aware thereof, inform the FundParent of such fact or event. As used in this AgreementNotwithstanding the foregoing, the termCompany makes no representation or warranty with respect to any statements made or incorporated by reference therein based on information supplied by the Parent or the Buyer that is contained (including by incorporation by reference) in any of the foregoing documents.
(d) The Company maintains disclosure controls and procedures required by Rule 13a-15 or 15d-15 under the Exchange Act. Such disclosure controls and procedures are effective to ensure that all material information concerning the Company is made known on a timely basis to the individuals responsible for the preparation of the Company’s filings with the SEC and other public disclosure documents. The Company is in compliance in all material respects with the listing requirements of AMEX and does not reasonably anticipate that the Company Common Stock will be delisted by AMEX for the foreseeable future, and has not received any notice other than as already publicly disclosed regarding the possible delisting of the Company Common Stock from AMEX.
Appears in 1 contract
SEC Filings; Financial Statements; Information Provided. (a) All The Company has filed all registration statements, forms, reports and other documents required to be filed by the Company with the SEC since January 1, 2001 2000, and has made available to the Buyer copies of all registration statements, forms, reports and other documents filed by the Company with the SEC since such date, all of which are publicly available on the SEC's XXXXX system. All such registration statements, forms, reports and other documents (including those that the Company may file after the date hereof until the Closing) are referred to herein as the “"Company SEC Reports.” Except as set forth in Section 3.4 of the Company Disclosure Schedule, the " The Company SEC Reports (i) were or will be filed on a timely basis and basis, (ii) at the time filed, were or will be prepared in compliance in all material respects with the applicable requirements of the Securities Act, Act and the Exchange Act, as the case may be, and the rules and regulations of the SEC thereunder applicable to such Company SEC Reports. None of , and (iii) did not or will not at the Company SEC Reports when filed, after giving effect to any amendments and supplements thereto time they were or are filed prior to the date hereof, contained contain any untrue statement of a material fact or omitted omit to state any a material fact required to be stated therein in such Company SEC Reports or necessary in order to make the statements thereinin such Company SEC Reports, in the light of the circumstances under which they were made, not misleading. None of the Company’s Subsidiaries has filed, or is obligated to file, any forms, reports, schedules, statements or other documents with the SEC. As used in this Section 3.4(a), the term “filed” shall be broadly construed to include any manner in which a document or information is furnished, supplied or otherwise made available to the SEC.
(b) Each of the consolidated financial statements (including, in each case, any related notes and schedules) contained or to be contained in the Company SEC Reports at the time filed (i) complied or will comply as to form in all material respects with applicable accounting requirements and the published rules and regulations of the SEC with respect thereto, (ii) were or will be prepared in accordance with United States generally accepted accounting principles (“"GAAP”") applied on a consistent basis throughout the periods involved (except as may be indicated in the notes to such financial statements or, in the case of unaudited interim financial statements, as permitted by the SEC on Form 10-Q QSB under the Exchange Act or for normal year-end adjustmentsAct) and (iii) fairly presented or will fairly present the financial position of the Company as of the dates thereof indicated and the results of its operations and cash flows for the periods indicated, consistent with the books and records of the Company, except that the unaudited interim financial statements were or are subject to normal and recurring year-end adjustments that have which were not been and or are not expected to be material to the Companyin amount. The unaudited balance sheet of the Company as of June September 30, 2004 2003 is referred to herein as the “"Company Balance Sheet.”" No financial statements of any entity other than the Company is required by GAAP to be included in the financial statements of the Company. Section 3.4(b) of the Company Disclosure Schedule contains a description of all non-audit services performed by the Company's auditors for the Company or any Subsidiaries since the beginning of the Company's immediately preceding fiscal year and the fees paid for such services; all such non-audit services were approved as required by Section 202 of the Xxxxxxxx-Xxxxx Act of 2002. The Company maintains a system of internal accounting controls sufficient to provide reasonable assurance that: (i) transactions are executed in accordance with management's general or specific authorizations; (ii) transactions are recorded as necessary to permit preparation of financial statements in conformity with GAAP and to maintain asset accountability; (iii) access to assets is permitted only in accordance with management's general or specific authorization; and (iv) the recorded accountability for assets is compared with the existing assets at reasonable intervals and appropriate action is taken with respect to any differences. Section 3.4(b) of the Company Disclosure Schedule lists, and the Company has delivered to the Buyer copies of, all written descriptions of, and all policies, manuals and other documents promulgating, such internal accounting controls. Section 3.4(b) of the Company Disclosure Schedule lists, and the Company has delivered to the Buyer copies of, the documents creating or governing, all of the Company's Off-Balance Sheet Arrangements. For purposes hereof, an "Off-Balance Sheet Arrangement" means, any securitization transaction to which that the Company is party and any "Off-balance sheet arrangements" with respect to such Persons within the meaning of paragraph (c) of Item 303 of Regulation S-K of the SEC.
(c) The information to be supplied by or on behalf of the Company for inclusion or incorporation by reference in the registration statement on Form S-4 to be filed by the Buyer pursuant to which the Company Series A Preferred shares of Buyer Common Stock issued in connection with the Merger and the Company Common Stock issuable upon conversion of the Company Series A Preferred Stock will shall be registered under the Securities Act (including any amendments or supplements, the “"Registration Statement”"), or to be included or supplied by or on behalf of the Company for inclusion in any filing pursuant to Rule 165 and Rule 425 under the Securities Act or Rule 14a-12 under the Exchange Act (each a "Regulation M-A Filing"), shall not at the time the Registration Statement or any Regulation M-A Filing is filed with the SEC, at any time the Registration Statement is amended or supplemented, or at the time the Registration Statement is declared effective by the SEC (as applicable), contain any untrue statement of a material fact or omit to state any material fact required to be stated in the Registration Statement therein or necessary in order to make the statements in the Registration Statement therein not misleading. The information to be supplied by or on behalf of the Company for inclusion in the joint proxy statement/prospectus (the “Proxy Statement”) to be sent to the stockholders of the Company and the Buyer (the "Joint Proxy Statement/Prospectus") in connection with (i) the meeting of the Company’s 's stockholders to consider the adoption Company Voting Proposal (the "Company Stockholders Meeting") (which shall be deemed to include all information about or relating to the Company, the Company Voting Proposal and the Company Stockholders Meeting), and (ii) the meeting of this Agreement and the Buyer's stockholders (the "Buyer Stockholders Meeting") to consider the issuance of shares of Buyer Common Stock pursuant to the Merger (the “Company Meeting”) and the Partners in connection with the Fund Consent Solicitation (as herein defined"Buyer Voting Proposal") shall not, on the date the Joint Proxy Statement Statement/Prospectus is first mailed to stockholders of the Company and or the PartnersBuyer, or at the time of the Company Stockholders Meeting and or the Buyer Stockholders Meeting or at the Effective Time, contain any statement which, at such time and in light of the circumstances under which it shall be made, is false or misleading with respect to any material fact, or omit to state any material fact necessary in order to make the statements made in the Joint Proxy Statement Statement/Prospectus not false or misleading; or omit to state any material fact necessary to correct any statement in any earlier communication with respect to the solicitation of proxies for the Company Stockholders Meeting or the solicitation of consents in connection with the Fund Consent Solicitation Buyer Stockholders Meeting which has become false or misleading. If at any time prior to the Effective Time any fact or event relating to the Company, any Affiliate (as defined below) of the Company, Company or any officers or directors of any of them, should be discovered by the Company its Affiliates which should be set forth in an amendment to the Registration Statement or a supplement to the Joint Proxy Statement/Prospectus should be discovered by the Company or should occur, the Company shall promptly inform the Fund. As used in this Agreement, the termBuyer of such fact or event.
Appears in 1 contract
SEC Filings; Financial Statements; Information Provided. (a) All The Company has filed all registration statements, forms, reports and other documents required to be filed by the Company with the SEC since January October 1, 2001 2003. All such registration statements, forms, reports and other documents (including those that the Company may file after the date hereof until the Closing) are referred to herein as the “Company SEC Reports.” Except as set forth in Section 3.4 of the Company Disclosure Schedule, the The Company SEC Reports (i) were or (in the case of those that the Company may file after the date hereof until the Closing) will be filed on a timely basis and basis, (ii) were at the time filed, complied, or (in the case of those that the Company may file after the date hereof until the Closing) will be prepared in compliance comply when filed, as to form in all material respects with the applicable requirements of the Securities Act, Act and the Exchange Act, as the case may be, and the rules and regulations of the SEC thereunder applicable to such Company SEC Reports. None , and (iii) did not or (in the case of those that the Company SEC Reports when filed, may file after giving effect to any amendments and supplements thereto filed prior to the date hereof, contained hereof until the Closing) will not at the time they were or are filed contain any untrue statement of a material fact or omitted omit to state any a material fact required to be stated therein in such Company SEC Reports or necessary in order to make the statements thereinin such Company SEC Reports, in the light of the circumstances under which they were made, not misleading. None No Subsidiary of the Company’s Subsidiaries has filed, or Company is obligated to file, any forms, reports, schedules, statements or other documents with the SEC. As used in this Section 3.4(a), the term “filed” shall be broadly construed to include any manner in which a document or information is furnished, supplied or otherwise made available subject to the SECreporting requirements of Section 13(a) or Section 15(d) of the Exchange Act.
(b) Each of the consolidated financial statements (including, in each case, any related notes and schedules) contained or to be contained in the Company SEC Reports at the time filed (i) complied or will comply as to form in all material respects with applicable accounting requirements and the published rules and regulations of the SEC with respect thereto, (ii) were or will be prepared in accordance with United States generally accepted accounting principles (“GAAP”) applied on a consistent basis throughout the periods involved (except as may be indicated in the notes to such financial statements or, in the case of unaudited interim financial statements, as permitted by the SEC on Form 10-Q under the Exchange Act or for normal year-end adjustments) Act), and (iii) fairly presented or will fairly present in all material respects the consolidated financial position of the Company and its Subsidiaries as of the dates thereof indicated and the consolidated results of its operations and cash flows for the periods indicated, except that the unaudited interim financial statements were or are subject to normal and recurring year-end adjustments that have not been and are not expected to be material to the Companyadjustments. The unaudited consolidated, audited balance sheet of the Company as of June September 30, 2004 2006 is referred to herein as the “Company Balance Sheet.”
(c) The information to be supplied by or on behalf of the Company for inclusion in the registration proxy statement on Form S-4 pursuant to which be sent to the Company Series A Preferred Stock issued in the Merger and the Company Common Stock issuable upon conversion shareholders of the Company Series A Preferred Stock will be registered under the Securities Act (including any amendments or supplements, the “Registration Statement”), shall not at the time the Registration Statement is declared effective by the SEC contain any untrue statement of a material fact or omit to state any material fact required to be stated in the Registration Statement or necessary in order to make the statements in the Registration Statement not misleading. The information to be supplied by the Company for inclusion in the joint proxy statement/prospectus (the “Proxy Statement”) to be sent to the stockholders of the Company in connection with the meeting of the Company’s stockholders to consider the adoption of this Agreement and the Merger (the “Company Meeting”) and the Partners in connection with the Fund Consent Solicitation (as herein defined) Meeting shall not, on the date the Proxy Statement is first mailed to stockholders shareholders of the Company and the PartnersCompany, at the time of the Company Meeting and or at the Effective Time, contain any statement which, at such time and in light of the circumstances under which it shall be made, is false or misleading with respect to any material fact, or omit to state any material fact necessary in order to make the statements made in the Proxy Statement not false or misleadingmisleading in light of the circumstances under which they were or shall be made; or omit to state any material fact necessary to correct any statement in any earlier communication with respect to the solicitation of proxies for the Company Meeting or the solicitation of consents in connection with the Fund Consent Solicitation which has become false or misleading. If at any time prior to the Effective Time Company Meeting any fact or event relating to the Company, any Affiliate (as defined below) of the Company, Company or any officers or directors of any of them, its Affiliates which should be set forth in a supplement to the Proxy Statement should be discovered by the Company which or should be set forth in an amendment to the Registration Statement or a supplement to the Proxy Statementoccur, the Company shall shall, promptly after becoming aware thereof, inform the FundBuyer of such fact or event.
(d) The Company maintains disclosure controls and procedures required by Rule 13a-15 or 15d-15 under the Exchange Act. As used Such disclosure controls and procedures are effective to ensure that all material information concerning the Company is made known on a timely basis to the individuals responsible for the preparation of the Company’s filings with the SEC and other public disclosure documents. The Company has not disclosed, based on the most recent evaluations, to the Company’s outside auditors and the audit committee of the Board of Directors of the Company (A) any significant deficiencies or material weaknesses in this Agreementthe design or operation of internal control over financial reporting (as defined in Rule 13a 15(f) of the Exchange Act) which are known to the Company and reasonably likely to adversely affect the Company’s ability to record, process, summarize and report financial data or (B) any fraud, whether or not material, known to the termCompany that involves management or other employees who have a significant role in the Company’s internal control over financial reporting. The Company is in compliance with the applicable listing and other rules and regulations of The Nasdaq Global Select Market.
(e) To the knowledge of the Company, neither the Company, any of its Subsidiaries, or any of their respective officers or directors, nor any of the Company’s Affiliates (including any holder of five percent (5%) or more of the Company’s outstanding equity interests) (i) appears on the Specially Designated Nationals and Blocked Persons List of the Office of Foreign Assets Control of the United States Department of the Treasury (“OFAC”) or on any other similar list maintained by OFAC pursuant to any authorizing statute, executive order or regulation; (ii) is otherwise a party with whom, or has its principal place of business or the majority of its business operations (measured by revenues) located in a country in which, transactions are prohibited by (A) United States Executive Order 13224, Blocking Property and Prohibiting Transactions with Persons Who Commit, Threaten to Commit, or Support Terrorism, (B) the United States Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001, (C) the United States Trading with the Enemy Act of 1917, as amended, (D) the United States International Emergency Economic Powers Act of 1977, as amended, or (E) the foreign asset control regulations of the United States Department of the Treasury; (iii) has been convicted of or charged with a felony relating to money laundering; or (iv) is under investigation by any governmental authority for money laundering.
Appears in 1 contract
Samples: Merger Agreement (Kronos Inc)
SEC Filings; Financial Statements; Information Provided. (a) All forms, reports and other documents required to be filed by the Company with the SEC since January 1, 2001 (including those that the Company may file after the date hereof until the Closing) are referred to herein as the “Company SEC Reports.” Except as set forth in Section 3.4 3.6(a) of the Company Disclosure ScheduleLetter, the Company SEC Reports has timely filed all forms, reports, statements, certifications and other documents (iincluding all exhibits, amendments and supplements thereto) were or will required to be filed on a timely basis by it with the SEC pursuant to the Exchange Act or other applicable United States federal securities Laws since January 1, 2005 (all such forms, reports, statements, certificates and (ii) were other documents filed since January 1, 2005, with any amendments thereto, collectively, together with the 2007 Annual Report, the “Company SEC Reports”), each of which, including any financial statements or will be prepared in compliance schedules included therein, as finally amended prior to the date of this Agreement, has complied as to form in all material respects with the applicable requirements of the Securities Act, Act and Exchange Act as of the Exchange Act, as date filed with the case may be, applicable to such Company SEC ReportsSEC. None of the Company SEC Reports when filedfiled with the SEC and, after giving effect to any amendments and supplements thereto filed prior to if amended, as of the date hereof, of such amendment contained any untrue statement of a material fact or omitted to state a material fact required to be stated or incorporated by reference therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. The Company is in compliance in all material respects with the provisions of the Sxxxxxxx-Xxxxx Act of 2002 and the rules and regulations promulgated thereunder (the “Sxxxxxxx-Xxxxx Act”).
(b) 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 Sxxxxxxx-Xxxxx Act with respect to any Company SEC Report. The Company has made available to the Buyer true, correct and complete copies of all material written correspondence between the SEC, on the one hand, and the Company and any of its Subsidiaries, on the other hand, since September 5, 2003. As of the date of this Agreement, there are no outstanding or unresolved comments in comment letters received from the SEC staff with respect to the Company SEC Reports. To the Knowledge of the Company, none of the Company SEC Reports is the subject of ongoing SEC review or outstanding SEC comment. None of the Company’s Subsidiaries is required to file periodic reports with the SEC pursuant to the Exchange Act.
(c) Each of the consolidated financial statements of the Company and its Subsidiaries included (or incorporated by reference) in the Company SEC Reports (including the related notes and schedules, where applicable) fairly presents (subject, in the case of the unaudited statements, to the absence of notes and normal year-end audit adjustments as permitted by the rules related to Quarterly Reports on Form 10-Q promulgated under the Exchange Act), in all material respects the results of the consolidated operations and changes in stockholders’ equity and cash flows and consolidated financial position of the Company and its Subsidiaries for the respective fiscal periods or as of the respective dates therein set forth. Each of such consolidated financial statements (including the related notes and schedules, where applicable) complies in all material respects with applicable accounting requirements and with the published rules and regulations of the SEC with respect thereto and each of such financial statements (including the related notes and schedules, where applicable) were prepared in accordance with GAAP consistently applied during the periods involved, except in each case as indicated in such statements or in the notes thereto or, in the case of unaudited statements, as permitted by the rules related to Quarterly Reports on Form 10-Q promulgated under the Exchange Act.
(d) The Company has established and maintains disclosure controls and procedures and internal controls over financial reporting (as such terms are defined in paragraphs (e) and (f), respectively, of Rule 13a-15 under the Exchange Act) as required by Rule 13a-15 under the Exchange Act. The Company’s disclosure controls and procedures are effective to ensure that all material information 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 material information is accumulated and communicated to the Company’s management as appropriate to allow timely decisions regarding required disclosure and to make the certifications required pursuant to Sections 302 and 906 of the Sxxxxxxx-Xxxxx Act. The Company’s management has completed an assessment of the effectiveness of the Company’s internal controls over financial reporting in compliance with the requirements of Section 404 of the Sxxxxxxx-Xxxxx Act for the year ended December 31, 2007, and such assessment concluded that such controls were effective. The Company has disclosed, based on its most recent evaluations, to the Company’s outside auditors and the audit committee of the Company (A) all significant deficiencies and material weaknesses in the design or operation of internal controls over financial reporting (as defined in Rule 13a-15(f) of the Exchange Act) which are reasonably likely to adversely affect in any material respect the Company’s ability to record, process, summarize and report financial data and (B) any fraud, whether or not material, that involves management or other employees who have a significant role in the Company’s internal controls over financial reporting.
(e) The information supplied by or on behalf of the Company for inclusion in the Schedule 14D-9, on the respective dates that the Schedule TO and the other Offer Documents and the Schedule 14D-9 are filed with the Commission, and on the dates they are first published, sent or given to stockholders of the Company, shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading. None of the Company’s Subsidiaries has filed, or is obligated to file, any forms, reports, schedules, statements or other documents with the SEC. As used in this Section 3.4(a), the term “filed” shall be broadly construed to include any manner in which a document or information is furnished, supplied or otherwise made available to the SEC.
(b) Each of the consolidated financial statements (including, in each case, any related notes and schedules) contained or to be contained in the Company SEC Reports (i) complied or will comply as to form in all material respects with applicable accounting requirements and the published rules and regulations of the SEC with respect thereto, (ii) were or will be prepared in accordance with generally accepted accounting principles (“GAAP”) applied on a consistent basis throughout the periods involved (except as may be indicated in the notes to such financial statements or, in the case of unaudited statements, as permitted by the SEC on Form 10-Q under the Exchange Act or for normal year-end adjustments) and (iii) fairly presented or will fairly present the financial position of the Company as of the dates thereof and the results of its operations and cash flows for the periods indicated, except that the unaudited interim financial statements were or are subject to normal and recurring year-end adjustments that have not been and are not expected to be material to the Company. The unaudited balance sheet of the Company as of June 30, 2004 is referred to herein as the “Company Balance Sheet.”
(c) The information to be supplied by the Company for inclusion in the registration statement on Form S-4 pursuant to which the Company Series A Preferred Stock issued in the Merger and the Company Common Stock issuable upon conversion of the Company Series A Preferred Stock will be registered under the Securities Act (including any amendments or supplements, the “Registration Statement”), shall not at the time the Registration Statement is declared effective by the SEC contain any untrue statement of a material fact or omit to state any material fact required to be stated in the Registration Statement or necessary in order to make the statements in the Registration Statement not misleading. The information to be supplied by the Company for inclusion in the joint proxy statement/prospectus (the “Proxy Statement”) to be sent to the stockholders of the Company in connection with the meeting of the Company’s stockholders to consider the adoption of this Agreement and the Merger (the “Company Meeting”) and the Partners in connection with the Fund Consent Solicitation (as herein defined) shall not, on the date the Proxy Statement is first mailed to stockholders of the Company and the Partners, at the time of the Company Meeting and at the Effective Time, contain any statement which, at such time and in light of the circumstances under which it shall be made, is false or misleading with respect to any material fact, or omit to state any material fact necessary in order to make the statements made in the Proxy Statement not false or misleading; or omit to state any material fact necessary to correct any statement in any earlier communication with respect to the solicitation of proxies for the Company Meeting or the solicitation of consents in connection with the Fund Consent Solicitation which has become false or misleading. If at any time prior to the Effective Time any event relating to the Company, any Affiliate (as defined below) of the Company, or any officers or directors of any of them, should be discovered by the Company which should be set forth in an amendment to the Registration Statement or a supplement to the Proxy Statement, the Company shall promptly inform the Fund. As used in this Agreement, the term
Appears in 1 contract
Samples: Merger Agreement (Walgreen Co)
SEC Filings; Financial Statements; Information Provided. (a) All The Buyer has filed all registration statements, forms, reports and other documents required to be filed by the Company Buyer with the SEC since January 1, 2001 2002 and has made available to the Company copies of all registration statements, forms, reports and other documents filed by the Buyer with the SEC since such date, all of which are publicly available on the SEC’s EXXXX system. All such registration statements, forms, reports and other documents (including those that the Company Buyer may file after the date hereof until the ClosingEffective Time) are referred to herein as the “Company Buyer SEC Reports.” Except as set forth in Section 3.4 of the Company Disclosure Schedule, the Company The Buyer SEC Reports (i) were or were, and with respect to Buyer SEC Reports filed after the date of this Agreement and prior to the Effective Time will be be, filed on a timely basis and basis, (ii) were or at the time filed, were, and with respect to Buyer SEC Reports filed after the date of this Agreement and prior to the Effective Time will be, be prepared in compliance in all material respects with the applicable requirements of the Securities Act, Act and the Exchange Act, as the case may be, and the rules and regulations of the SEC thereunder applicable to such Company Buyer SEC Reports. None of , and (iii) did not at the Company time they were filed, and with respect to Buyer SEC Reports when filed, filed after giving effect to any amendments the date of this Agreement and supplements thereto filed prior to the date hereofEffective Time will not at the time they are filed, contained contain any untrue statement of a material fact or omitted omit to state any a material fact required to be stated therein in such Buyer SEC Reports or necessary in order to make the statements thereinin such Buyer SEC Reports, in the light of the circumstances under which they were made, not misleading. None No Subsidiary of the Company’s Subsidiaries has filed, or Buyer is obligated to file, any forms, reports, schedules, statements or other documents with the SEC. As used in this Section 3.4(a), the term “filed” shall be broadly construed to include any manner in which a document or information is furnished, supplied or otherwise made available subject to the SECreporting requirements of Section 13(a) or Section 15(d) of the Exchange Act. There are no off-balance sheet structures or transactions with respect to the Buyer or any of its Subsidiaries that would be required to be reported or set forth in the Buyer SEC Reports.
(b) Each of the consolidated financial statements (including, in each case, any related notes and schedules) contained or to be contained incorporated in the Company Buyer SEC Reports at the time filed (i) complied or complied, and with respect to Buyer SEC Reports filed after the date of this Agreement and prior to the Effective Time will comply comply, as to form in all material respects with applicable accounting requirements and the published rules and regulations of the SEC with respect thereto, (ii) were or were, and with respect to Buyer SEC Reports filed after the date of this Agreement and prior to the Effective Time will be be, prepared in accordance with generally accepted accounting principles (“GAAP”) GAAP applied on a consistent basis throughout the periods involved (except as may be indicated in the notes to such financial statements or, in the case of unaudited statements, as permitted by the SEC on Form 10-Q under the Exchange Act or for normal year-end adjustmentsAct) and (iii) fairly presented or presented, and with respect to Buyer SEC Reports filed after the date of this Agreement and prior to the Effective Time will fairly present present, the consolidated financial position of the Company Buyer and its Subsidiaries as of the dates thereof and the consolidated results of its operations and cash flows for the periods indicated, consistent with the books and records of the Buyer and its Subsidiaries, except that the unaudited interim financial statements were or are subject to normal and recurring year-end adjustments that have which were not been and or are not expected to be material to the Companyin amount. The consolidated, unaudited balance sheet of the Company Buyer as of June 30December 31, 2004 is referred to herein as the “Company Buyer Balance Sheet.”
(c) The information to be in the Registration Statement or in any Regulation M-A Filing (except, in each case, for information supplied by or on behalf of the Company for inclusion or incorporation by reference in the registration statement on Form S-4 pursuant Registration Statement or Regulation M-A Filing, as to which the Company Series A Preferred Stock issued in the Merger Buyer makes no representation and the Company Common Stock issuable upon conversion which shall not constitute part of the Company Series A Preferred Stock will be registered under the Securities Act (including any amendments or supplements, the “Registration Statement”Buyer SEC Reports for purposes of this Agreement), shall not at the time the Registration Statement or any Regulation M-A Filing is filed with the SEC, at any time the Registration Statement is amended or supplemented, or at the time the Registration Statement is declared effective by the SEC (as applicable), contain any untrue statement of a material fact or omit to state any material fact required to be stated in the Registration Statement therein or necessary in order to make the statements in the Registration Statement therein not misleading. The information to be supplied by or on behalf of the Company Buyer for inclusion in the joint proxy statement/prospectus (the “Joint Proxy Statement”) /Prospectus (which shall be deemed to be sent include all information about or relating to the stockholders of Buyer, the Company in connection with the meeting of the Company’s stockholders to consider the adoption of this Agreement Buyer Voting Proposal and the Merger (the “Company Buyer Stockholders Meeting”) and the Partners in connection with the Fund Consent Solicitation (as herein defined) shall not, on the date the Joint Proxy Statement Statement/Prospectus is first mailed to stockholders of the Company and or the PartnersBuyer, or at the time of the Company Shareholders Meeting and or the Buyer Stockholders Meeting or at the Effective Time, contain any statement which, at such time and in light of the circumstances under which it shall be made, is false or misleading with respect to any material fact, or omit to state any material fact necessary in order to make the statements made in the Joint Proxy Statement Statement/Prospectus not false or misleading; or omit to state any material fact necessary to correct any statement in any earlier communication with respect to the solicitation of proxies for the Company Shareholders Meeting or the solicitation of consents in connection with the Fund Consent Solicitation which Buyer Stockholders Meeting that has become false or misleading. If at any time prior to the Effective Time any fact or event relating to the Company, any Affiliate (as defined below) of the Company, Buyer or any officers or directors of any of them, should be discovered by the Company which its Affiliates that should be set forth in an amendment to the Registration Statement or a supplement to the Joint Proxy Statement/Prospectus should be discovered by the Buyer or should occur, the Company Buyer shall promptly inform the FundCompany of such fact or event.
(d) The Buyer maintains disclosure controls and procedures required by Rule 13a-15(e) or 15d-15(e) under the Exchange Act. As used Such disclosure controls and procedures are effective to provide reasonable assurance that information the Buyer is required to disclose in this Agreementreports that it files or submits under the Exchange Act is recorded, processed, summarized and reported within the termtime periods specified in SEC rules and forms, and that such information is accumulated and communicated to the Buyer’s management as appropriate, to allow timely decisions regarding required disclosure. The Buyer has disclosed, based on its most recent evaluation of internal control over financial reporting prior to the date hereof, to the Buyer’s auditors and the Audit Committee of the Buyer’s Board of Directors (A) any significant deficiencies or material weaknesses in the design or operation of internal control over financial reporting which are likely to adversely affect in any material respect the Buyer’s ability to record, process, summarize and report financial data and (B) any fraud, whether or not material, that involves management or other employees of the Buyer or its Subsidiaries who have a significant role in the Buyer’s internal control over financial reporting. Since January 1, 2002, neither the Buyer nor any of its Subsidiaries nor, to the knowledge of the Buyer, any director, officer, employee, auditor, accountant or representative of the Buyer or any of its Subsidiaries has received or otherwise had or obtained knowledge of any material complaint, allegation, assertion or claim, whether written or oral, regarding the accounting or auditing practices, procedures, methodologies or methods of the Buyer or any of its Subsidiaries or their respective internal accounting controls including any material complaint, allegation, assertion or claim that the Buyer or any of its Subsidiaries has engaged in questionable accounting or auditing practices. No attorney representing the Buyer or any of its Subsidiaries, whether or not employed by the Buyer or any of its Subsidiaries, has reported evidence of a violation of securities laws, breach of fiduciary duty or similar violation by the Buyer or any of its officers, directors, employees or agents to the Buyer’s Board of Directors or any committee thereof or to any director or officer of the Buyer.
(e) The Buyer is in compliance in all material respects with the applicable provisions of the Sxxxxxxx-Xxxxx Act and with the applicable listing and other rules and regulations of The Nasdaq National Market and has not since January 1, 2002 received any notice from The Nasdaq National Market asserting any non-compliance with such rules and regulations. Each required form, report and document containing financial statements that the Buyer has filed with or submitted to the SEC since August 29, 2002 was accompanied by the certifications required to be filed or submitted by the Buyer’s principal executive officer and principal financial officer pursuant to the Sxxxxxxx-Xxxxx Act and, at the time of filing or submission of each such certification, such certification was true and accurate and complied with the Sxxxxxxx-Xxxxx Act and the rules and regulations promulgated thereunder. Except as permitted by the Exchange Act, including, without limitation, Sections 13(k)(2) and (3), since the enactment of the Sxxxxxxx-Xxxxx Act, neither the Buyer nor any of its affiliates has made, arranged or modified (in any material way) personal loans to any executive officer or director of the Buyer.
Appears in 1 contract
SEC Filings; Financial Statements; Information Provided. (a) All The Company has filed all registration statements, forms, reports and other documents required to be filed by the Company with the SEC since January 1, 2001 2020. All such registration statements, forms, reports and other documents (including exhibits and all other information incorporated therein and any supplements or amendments thereto and those registration statements, forms, reports and other documents that the Company may file after the date hereof until the Closing) are referred to herein as the “Company SEC Reports.” ”, and the Company has made available to the Parent copies of all Company SEC Reports to the extent not available on the SEC’s EXXXX system. Except as set forth in on Section 3.4 2.5(a) of the Company Disclosure Schedule, the Company SEC Reports (i) were or will be filed on a timely basis and basis, (ii) were at the time filed, complied, or will be prepared in compliance comply when filed, as to form in all material respects with the applicable requirements of the Securities Act, Act and the Exchange Act, as the case may be, Act applicable to such Company SEC Reports. None of Reports and (iii) except to the extent that information contained in a Company SEC Reports when filedReport has been revised, after giving effect to any amendments and supplements thereto amended, modified or superseded by a later filed Company SEC Report prior to the date hereof, contained did not or will not at the time they were or are filed contain any untrue statement of a material fact or omitted omit to state any a material fact required to be stated therein in such Company SEC Reports or necessary in order to make the statements thereinin such Company SEC Reports, in the light of the circumstances under which they were made, not misleading. None The Company has not as of the date hereof received any written comments from the SEC with respect to any of the Company SEC Reports which remain unresolved. To the Company’s Subsidiaries has filedKnowledge, or as of the date hereof, none of the Company SEC Reports is obligated subject to fileongoing SEC review. No Subsidiary of the Company is required to file any form, any forms, reports, schedules, statements report or other documents document with the SEC. As used in this Section 3.4(a), the term “filed” shall be broadly construed to include any manner in which a document or information is furnished, supplied or otherwise made available to the SEC.
(b) Each of the consolidated financial statements (including, in each case, any related notes and schedules) contained or to be contained in the Company SEC Reports at the time filed (i) complied or will comply as to form in all material respects with applicable accounting requirements and the published rules and regulations of the SEC with respect thereto, (ii) were or will be prepared in accordance with generally accepted accounting principles (“GAAP”) GAAP applied on a consistent basis throughout the periods involved (except as may be indicated in the notes to such financial statements or, in the case of unaudited interim financial statements, as permitted by the SEC on Form 10-Q under the Exchange Act or for normal year-end adjustments) Act), and (iii) fairly presented or will fairly present in all material respects the consolidated financial position of the Company and its Subsidiaries as of the dates thereof indicated and the consolidated results of its operations and cash flows for the periods indicated, except that the unaudited interim financial statements were or are subject to normal and recurring year-end adjustments that have not been and are not expected to be material to the Company. The unaudited balance sheet of the Company as of June 30, 2004 is referred to herein as the “Company Balance Sheetaudit adjustments.”
(c) The information Proxy Statement on the date the Proxy Statement is first mailed to be supplied by the Company for inclusion in the registration statement on Form S-4 pursuant to which the Company Series A Preferred Stock issued in the Merger and the holders of shares of Company Common Stock issuable upon conversion Stock, at the time of any amendment or supplement thereto and at the time of the Company Series A Preferred Stock will be registered under the Securities Act Shareholders Meeting (including any amendments or supplements, the “Registration Statement”), i) shall not at the time the Registration Statement is declared effective by the SEC contain any untrue statement of a material fact or omit to state any material fact required to be stated in the Registration Statement or necessary in order to make the statements therein, in light of the circumstances in which they shall be made, not misleading and (ii) will comply as to form in all material respects with the requirements of the Exchange Act applicable to the Proxy Statement. Notwithstanding the foregoing provisions of this Section 2.5(c), no representation or warranty is made by the Company with respect to information or statements made or incorporated by reference in the Registration Proxy Statement not misleading. The based upon information to be supplied by the Parent, Merger Sub or any of their respective Representatives expressly for use or incorporation by reference therein.
(d) The Company for inclusion is in compliance in all material respects with the joint proxy statement/prospectus (applicable provisions of the “Proxy Statement”) Sxxxxxxx-Xxxxx Act. Each required form, report and document containing financial statements that has been filed with or submitted to the SEC was accompanied by any certifications required to be sent to the stockholders of the Company in connection with the meeting of filed or submitted by the Company’s stockholders principal executive officer and principal financial officer pursuant to consider the adoption of this Agreement and the Merger (the “Company Meeting”) and the Partners in connection with the Fund Consent Solicitation (as herein defined) shall not, on the date the Proxy Statement is first mailed to stockholders of the Company and the PartnersSxxxxxxx-Xxxxx Act and, at the time of filing or submission of each such certification, any such certification complied in all material respects with the applicable provisions of the Sxxxxxxx-Xxxxx Act.
(e) The Company maintains disclosure controls and procedures required by Rule 13a-15 or 15d-15 under the Exchange Act. Such disclosure controls and procedures are designed to provide reasonable assurance that all information concerning the Company Meeting and at that could have a material effect on the Effective Time, contain any statement which, at such time and in light financial statements is made known on a timely basis to the individuals responsible for the preparation of the circumstances under which it shall be made, is false or misleading with respect to any material fact, or omit to state any material fact necessary in order to make the statements made in the Proxy Statement not false or misleading; or omit to state any material fact necessary to correct any statement in any earlier communication with respect to the solicitation of proxies for the Company Meeting or the solicitation of consents in connection Company’s filings with the Fund Consent Solicitation which SEC and other public disclosure documents. The Company is in compliance in all material respects with the applicable listing and other rules and regulations of Nasdaq. The Company has become false or misleadingestablished and maintained a system of internal control over financial reporting (as defined in Rule 13a-15 under the Exchange Act). If at any time Such internal controls are designed to provide reasonable assurance regarding the reliability of the Company’s financial reporting and the preparation of Company financial statements for external purposes in accordance with GAAP. The Company’s principal executive officer and its principal financial officer have disclosed, based on the most recent evaluation of internal control over financial reporting prior to the Effective Time any event relating date of this Agreement, to the Company’s auditors and the audit committee of the Company Board (and made available to the Parent a summary of the significant aspects of such disclosure, if any) (i) all known significant deficiencies and material weaknesses in the design or operation of internal controls over financial reporting that are reasonably likely to adversely affect in any Affiliate material respect the Company’s ability to record, process, summarize and report financial information, 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 control over financial reporting. Any material change in internal control over financial reporting and any significant deficiency or material weakness in the design or operation of internal control over financial reporting required to be disclosed in any Company SEC Report or in any form, report or document filed by the Company with the SEC has been so disclosed and each significant deficiency and material weakness previously so disclosed has been remediated in all material respects.
(f) The Company is not subject to any “Off-Balance Sheet Arrangement” (as defined belowin Item 303(a) of Regulation S-K under the Company, or any officers or directors of any of them, should be discovered by the Company which should be set forth in an amendment to the Registration Statement or a supplement to the Proxy Statement, the Company shall promptly inform the Fund. As used in this Agreement, the termSecurities Act).
Appears in 1 contract
Samples: Merger Agreement (Intricon Corp)
SEC Filings; Financial Statements; Information Provided. (a) All Buyer has timely filed all registration statements, forms, reports reports, schedules, prospectuses, proxy statements, certifications and other documents required to be filed by the Company Buyer with the SEC since January 1in the past twenty-four (24) months. All such registration statements, 2001 forms, reports and other documents (including those that the Company Buyer may file after the date hereof until the ClosingClosing and together with all exhibits and schedules thereto and documents incorporated by reference therein) are referred to herein as the “Company Buyer SEC Reports.” Except as set forth in Section 3.4 All of the Company Disclosure Schedule, the Company Buyer SEC Reports (i) were or will be filed on a timely basis and basis, (ii) were at the time filed, complied, or will be prepared in compliance comply when filed, as to form in all material respects with the applicable requirements of the Securities Act, the Exchange Act and the Exchange ActXxxxxxxx-Xxxxx Act of 2002, as the case may be, and rules and regulations promulgated thereunder applicable to such Company Buyer SEC Reports. None Reports and (iii) did not, or will not, at the time they were or are filed (or, if amended, as of the Company SEC Reports when filed, after giving effect to any amendments and supplements thereto filed prior to the date hereof, contained of such amendment) contain any untrue statement of a material fact or omitted omit to state any a material fact required to be stated therein in such Buyer SEC Reports or necessary in order to make the statements thereinin such Buyer SEC Reports, in the light of the circumstances under which they were made, not misleading. None of the Company’s Subsidiaries has filed, or is obligated to file, any forms, reports, schedules, statements or other documents with the SEC. As used in this Section 3.4(a), the term “filed” shall be broadly construed to include any manner in which a document or information is furnished, supplied or otherwise made available to the SEC.
(b) Each Since the date of the consolidated financial statements most recent Buyer SEC Report through the date hereof, (including, in each case, any related notes and schedulesa) contained or to be contained Buyer has conducted its business in the Company SEC Reports (i) complied or will comply as to form in all material respects with applicable accounting requirements and the published rules and regulations Ordinary Course of the SEC with respect thereto, (ii) were or will be prepared in accordance with generally accepted accounting principles (“GAAP”) applied on a consistent basis throughout the periods involved (except as may be indicated in the notes to such financial statements or, in the case of unaudited statements, as permitted by the SEC on Form 10-Q under the Exchange Act or for normal year-end adjustments) Business and (iiib) fairly presented or will fairly present the financial position of the Company as of the dates thereof and the results of its operations and cash flows for the periods indicated, except that the unaudited interim financial statements were or are subject to normal and recurring year-end adjustments that have there has not been and are not expected to be material to the Company. The unaudited balance sheet of the Company as of June 30, 2004 is referred to herein as the “Company Balance Sheetany Buyer Material Adverse Change.”
(c) The information to be supplied by the Company for inclusion in the registration statement on Form S-4 pursuant to which the Company Series A Preferred Stock issued in the Merger and the Company Common Stock issuable upon conversion of the Company Series A Preferred Stock will be registered under the Securities Act (including any amendments or supplements, the “Registration Statement”), shall not at the time the Registration Statement is declared effective by the SEC contain any untrue statement of a material fact or omit to state any material fact required to be stated in the Registration Statement or necessary in order to make the statements in the Registration Statement not misleading. The information to be supplied by the Company for inclusion in the joint proxy statement/prospectus (the “Proxy Statement”) to be sent to the stockholders of the Company in connection with the meeting of the Company’s stockholders to consider the adoption of this Agreement and the Merger (the “Company Meeting”) and the Partners in connection with the Fund Consent Solicitation (as herein defined) shall not, on the date the Proxy Statement is first mailed to stockholders of the Company and the Partners, at the time of the Company Meeting and at the Effective Time, contain any statement which, at such time and in light of the circumstances under which it shall be made, is false or misleading with respect to any material fact, or omit to state any material fact necessary in order to make the statements made in the Proxy Statement not false or misleading; or omit to state any material fact necessary to correct any statement in any earlier communication with respect to the solicitation of proxies for the Company Meeting or the solicitation of consents in connection with the Fund Consent Solicitation which has become false or misleading. If at any time prior to the Effective Time any event relating to the Company, any Affiliate (as defined below) of the Company, or any officers or directors of any of them, should be discovered by the Company which should be set forth in an amendment to the Registration Statement or a supplement to the Proxy Statement, the Company shall promptly inform the Fund. As used in this Agreement, the term
Appears in 1 contract
SEC Filings; Financial Statements; Information Provided. (a) All The Company has filed all registration statements, forms, reports and other documents required to be filed by the Company with the SEC since January 1, 2001 2004 and has made available to the Parent copies of all registration statements, forms, reports and other documents filed by the Company with the SEC since such date, all of which are publicly available on the SEC’s XXXXX system. All such registration statements, forms, reports and other documents (including those that the Company may file after the date hereof until the Closing) are referred to herein as the “Company SEC Reports.” Except as set forth in Section 3.4 of the Company Disclosure Schedule, the The Company SEC Reports (i) were or will be filed on a timely basis and basis, (ii) at the time filed, were or will be prepared in compliance in all material respects with the applicable requirements of the Securities Act, Act and the Exchange Act, as the case may be, and the rules and regulations of the SEC thereunder applicable to such Company SEC Reports. None of , and (iii) did not or will not at the Company SEC Reports when filed, after giving effect to any amendments and supplements thereto time they were or are filed prior to the date hereof, contained contain any untrue statement of a material fact or omitted omit to state any a material fact required to be stated therein in such Company SEC Reports or necessary in order to make the statements thereinin such Company SEC Reports, in the light of the circumstances under which they were made, not misleading. None of the Company’s Subsidiaries has filed, or is obligated to file, any forms, reports, schedules, statements or other documents with the SEC. As used in this Section 3.4(a), the term “filed” shall be broadly construed to include any manner in which a document or information is furnished, supplied or otherwise made available to the SEC.
(b) Each of the consolidated financial statements (including, in each case, any related notes and schedules) contained or to be contained in the Company SEC Reports at the time filed (i) complied or will comply as to form in all material respects with applicable accounting requirements and the published rules and regulations of the SEC with respect thereto, (ii) were or will be prepared in accordance with United States generally accepted accounting principles (“GAAP”) applied on a consistent basis throughout the periods involved (except as may be indicated in the notes to such financial statements or, in the case of unaudited interim financial statements, as permitted by the SEC on Form 10-Q under the Exchange Act or for normal year-end adjustmentsAct) and (iii) fairly presented or will fairly present the financial position of the Company as of the dates thereof indicated and the results of its operations and cash flows for the periods indicated, consistent with the books and records of the Company, except that the unaudited interim financial statements do not contain footnotes and were or are subject to normal and recurring year-end adjustments that have not been and are not expected to be material to the Companyadjustments. The unaudited balance sheet of the Company as of June 30, 2004 2005 is referred to herein as the “Company Balance Sheet.”
(c) The information to be supplied by or on behalf of the Company for inclusion or incorporation by reference in the registration statement on Form S-4 to be filed by the Parent pursuant to which the Company Series A Preferred shares of Parent Common Stock issued in connection with the Merger and the Company Common Stock issuable upon conversion of the Company Series A Preferred Stock will shall be registered under the Securities Act (including any amendments or supplements, the “Registration Statement”), or to be included or supplied by or on behalf of the Company for inclusion in any filing pursuant to Rule 165 and Rule 425 under the Securities Act or Rule 14a-12 under the Exchange Act (each a “Regulation M-A Filing”), shall not at the time the Registration Statement or any Regulation M-A Filing is filed with the SEC, at any time the Registration Statement is amended or supplemented, or at the time the Registration Statement is declared effective by the SEC (as applicable), contain any untrue statement of a material fact or omit to state any material fact required to be stated in the Registration Statement therein or necessary in order to make the statements in the Registration Statement therein not misleading. The information to be supplied by or on behalf of the Company for inclusion in the joint proxy statement/prospectus (the “Proxy Statement”) to be sent to the stockholders of the Company (the “Proxy Statement/Prospectus”) in connection with the meeting of the Company’s stockholders to consider the adoption of this Agreement and the Merger Company Voting Proposal (the “Company Stockholders Meeting”) and the Partners in connection with the Fund Consent Solicitation (as herein defined) ), shall not, on the date the Proxy Statement Statement/Prospectus is first mailed to stockholders of the Company and the PartnersCompany, or at the time of the Company Stockholders Meeting and or at the Effective Time, contain any statement which, at such time and in light of the circumstances under which it shall be made, is false or misleading with respect to any material fact, or omit to state any material fact necessary in order to make the statements made in the Proxy Statement Statement/Prospectus not false or misleading; or omit to state any material fact necessary to correct any statement in any earlier communication with respect to the solicitation of proxies for the Company Stockholders Meeting or the solicitation of consents in connection with the Fund Consent Solicitation which has become false or misleading. If at any time prior to the Effective Time any fact or event relating to the Company, any Affiliate (as defined below) of the Company, Company or any officers or directors of any of them, should be discovered by the Company its Affiliates which should be set forth in an amendment to the Registration Statement or a supplement to the Proxy Statement/Prospectus should be discovered by the Company or should occur, the Company shall promptly inform the Fund. As used in this Agreement, the termParent of such fact or event.
Appears in 1 contract
Samples: Merger Agreement (Clinical Data Inc)
SEC Filings; Financial Statements; Information Provided. (a) All The Company has filed all registration statements, forms, reports reports, certifications and other documents required to be filed by the Company with the SEC since January 1, 2001 in the twelve (including those that the Company may file after 12) months preceding the date hereof until the Closing) hereof. All such registration statements, forms, reports and other documents are referred to herein as the “Company SEC Reports.” Except as set forth in Section 3.4 All of the Company Disclosure Schedule, the Company SEC Reports (i) were or will be filed on a timely basis and basis, (ii) were or will be prepared in compliance at the time filed, complied as to form in all material respects with the applicable requirements of the Securities Act, Act and the Exchange Act, as the case may be, Act applicable to such Company SEC Reports. None of Reports and (iii) did not at the Company SEC Reports when filed, after giving effect to any amendments and supplements thereto time they were filed prior to the date hereof, contained contain any untrue statement of a material fact or omitted omit to state any a material fact required to be stated therein in such Company SEC Reports or necessary in order to make the statements thereinin such Company SEC Reports, in the light of the circumstances under which they were made, not misleading. None of the Company’s Subsidiaries has filed, or is obligated to file, in any forms, reports, schedules, statements or other documents with the SEC. As used in this Section 3.4(a), the term “filed” shall be broadly construed to include any manner in which a document or information is furnished, supplied or otherwise made available to the SECmaterial respect.
(b) Each of the consolidated financial statements (including, in each case, any related notes and schedules) contained or to be contained in the Company SEC Reports at the time filed (i) complied or will comply as to form in all material respects with applicable accounting requirements and the published rules and regulations of the SEC with respect thereto, (ii) were or will be prepared in accordance with generally accepted accounting principles (“GAAP”) GAAP applied on a consistent basis throughout the periods involved and at the dates involved (except as may be indicated in the notes to such financial statements or, in the case of unaudited interim financial statements, as permitted by the SEC on Form 10-Q under the Exchange Act or for normal year-end adjustmentsAct) and (iii) fairly presented or will fairly present in accordance with GAAP the consolidated financial position of the Company and its subsidiaries as of the dates thereof indicated and the consolidated results of its operations and cash flows for the periods indicated, except that the unaudited interim financial statements were or are subject to normal and recurring year-end adjustments that have not been and are not expected to be material to the Company. The unaudited balance sheet of the Company as of June 30, 2004 is referred to herein as the “Company Balance Sheetadjustments.”
(c) The information to be supplied by the Company for inclusion in the registration statement on Form S-4 pursuant to which the Company Series A Preferred Stock issued in the Merger and the Company Common Stock issuable upon conversion of the Company Series A Preferred Stock will be registered under the Securities Act (including any amendments or supplements, the “Registration Statement”), shall not at the time the Registration Statement is declared effective by the SEC contain any untrue statement of a material fact or omit to state any material fact required to be stated in the Registration Statement or necessary in order to make the statements in the Registration Statement not misleading. The information to be supplied by the Company for inclusion in the joint proxy statement/prospectus (the “Proxy Statement”) to be sent to the stockholders of the Company in connection with the meeting of the Company’s stockholders to consider the adoption of this Agreement and the Merger (the “Company Meeting”) and the Partners in connection with the Fund Consent Solicitation (as herein defined) shall not, on the date the Proxy Statement is first mailed to stockholders of the Company and the Partners, at the time of the Company Meeting and at the Effective Time, contain any statement which, at such time and in light of the circumstances under which it shall be made, is false or misleading with respect to any material fact, or omit to state any material fact necessary in order to make the statements made in the Proxy Statement not false or misleading; or omit to state any material fact necessary to correct any statement in any earlier communication with respect to the solicitation of proxies for the Company Meeting or the solicitation of consents in connection with the Fund Consent Solicitation which has become false or misleading. If at any time prior to the Effective Time any event relating to the Company, any Affiliate (as defined below) of the Company, or any officers or directors of any of them, should be discovered by the Company which should be set forth in an amendment to the Registration Statement or a supplement to the Proxy Statement, the Company shall promptly inform the Fund. As used in this Agreement, the term
Appears in 1 contract
SEC Filings; Financial Statements; Information Provided. (a) All The Company has filed all registration statements, certifications, forms, reports and other documents required to be filed by the Company with the SEC Securities and Exchange Commission (the “SEC”) since January 1, 2001 2007. All such registration statements, certifications, forms, reports and other documents (including those that the Company may file after the date hereof until the Closing) are referred to herein as the “Company SEC Reports.” Except as set forth in Section 3.4 of the Company Disclosure Schedule, the The Company SEC Reports (i) were or will be filed on a timely basis and basis, (ii) were at the time filed, complied, or will be prepared in compliance comply when filed, as to form in all material respects with the applicable requirements of the Securities Act, the Exchange Act and the Exchange ActXxxxxxxx-Xxxxx Act of 2002, as the case may be, and the rules and regulations of the SEC thereunder applicable to such Company SEC Reports. None of , and (iii) did not or will not at the Company SEC Reports when filed, after giving effect to any amendments and supplements thereto time they were or are filed prior to the date hereof, contained contain any untrue statement of a material fact or omitted omit to state any a material fact required to be stated therein or incorporated in such Company SEC Reports or necessary in order to make the statements thereinin such Company SEC Reports, in the light of the circumstances under which they were made, not misleading. None As of the Company’s Subsidiaries has fileddate of this Agreement, there are no outstanding or is obligated to file, any forms, reports, schedules, statements or other documents with unresolved comments in comment letters received from the SEC. As used in of the date of this Section 3.4(a)Agreement, the term “filed” shall be broadly construed to include Company has not received written notice that any manner in which a document or information of the Company SEC Reports is furnished, supplied or otherwise made available the subject of ongoing SEC review that is still pending. No Subsidiary of the Company is subject to the SECreporting requirements of Section 13(a) or Section 15(d) of the Exchange Act. No executive officer of the Company has failed to make the certifications required of him or her under section 302 or 906 of the Xxxxxxxx-Xxxxx Act. Neither the Company nor any of its executive officers has received written notice from any Governmental Entity challenging or questioning the accuracy of such certifications.
(b) Each of the consolidated financial statements (including, in each case, any related notes and schedules) contained (or incorporated by reference) or to be contained (or to be incorporated by reference) in the Company SEC Reports (the “Financial Statements”) at the time filed (i) complied or will comply as to form in all material respects with applicable accounting requirements and the published rules and regulations of the SEC with respect thereto, (ii) were or will be prepared in accordance with United States generally accepted accounting principles (“GAAP”) applied on a consistent basis throughout the periods involved (except as may be indicated in the notes to such financial statements Financial Statements or, in the case of unaudited interim financial statements, as permitted by the SEC on Form 10-Q under the Exchange Act or for normal year-end adjustments) Act), and (iii) fairly presented or will fairly present in all material respects the consolidated financial position of the Company and its Subsidiaries as of the dates thereof indicated and the consolidated results of its their operations and cash flows for the periods indicated, except that the unaudited interim financial statements were or are subject to normal and recurring year-end adjustments adjustments. Since January 1, 2008, there has been no material change in the Company’s accounting methods or principles that would be required to be disclosed in the Company’s Financial Statements in accordance with GAAP, except as described in the notes to such Company Financial Statements. There are no unconsolidated Subsidiaries of the Company or any off-balance sheet arrangements of any type (including any off-balance sheet arrangement required to be disclosed pursuant to Item 303(a)(4) of Regulation S-K promulgated under the Securities Act) that have not been and are not expected so described in the Company SEC Reports nor any obligations to be material to the Companyenter into any such arrangements. The consolidated, unaudited balance sheet of the Company as of June 3028, 2004 2009 is referred to herein as the “Company Balance Sheet.”
(c) The information to be supplied by the Company for inclusion in the registration proxy statement on Form S-4 pursuant to which the Company Series A Preferred Stock issued in the Merger and the Company Common Stock issuable upon conversion of the Company Series A Preferred Stock will be registered under the Securities Act (including any amendments or supplements, the “Registration Statement”), shall not at the time the Registration Statement is declared effective by the SEC contain any untrue statement of a material fact or omit to state any material fact required to be stated in the Registration Statement or necessary in order to make the statements in the Registration Statement not misleading. The information to be supplied by the Company for inclusion in the joint proxy statement/prospectus (the “Proxy Statement”) to be sent to the stockholders of the Company in connection with the meeting of Company Meeting (as amended or supplemented from time to time, the Company’s stockholders “Proxy Statement”) and the Rule 13E-3 transaction statement on Schedule 13E-3 relating to consider the adoption of this Agreement and by the Merger stockholders of the Company (as amended or supplemented from time to time, the “Company MeetingSchedule 13E-3”) and the Partners in connection with the Fund Consent Solicitation (as herein defined) shall not, on the date the Proxy Statement (including any amendment or supplement) is first mailed to stockholders of the Company and the Partners, or at the time of the Company Meeting and at Meeting, or, in the Effective Timecase of the Schedule 13E-3 (including any amendment or supplement or document to be incorporated by reference), on the date it is filed with the SEC, contain any statement which, at such time and in light of the circumstances under which it shall be made, is false or misleading with respect to any material fact, or omit to state any material fact required to be stated therein or necessary in order to make the statements made in the Proxy Statement therein not false or misleadingmisleading in light of the circumstances under which made; or or, with respect to the Proxy Statement, omit to state -10- any material fact required to be stated therein or necessary to correct any statement in any earlier communication with respect to the solicitation of proxies for the Company Meeting or the solicitation of consents in connection with the Fund Consent Solicitation which has become false or misleading. The Proxy Statement and the Schedule 13E-3 will comply as to form in all material respects with the requirements of the Exchange Act. Notwithstanding the foregoing, the Company makes no representation or warranty with respect to information supplied by or on behalf of the Buyer or the Transitory Subsidiary for inclusion or incorporation by reference in the Proxy Statement or the Schedule 13E-3. If at any time prior to the Effective Time Company Meeting any fact or event relating to the Company, any Affiliate (as defined below) of the Company, Company or any officers or directors of any of them, should be discovered by the Company its Affiliates which should be set forth in an amendment to the Registration Statement or a supplement to the Proxy StatementStatement or the Schedule 13E-3 should be discovered by the Company or should occur, the Company shall shall, promptly after becoming aware thereof, inform the FundBuyer of such fact or event.
(d) The Company has implemented disclosure controls and procedures (as defined in Rule 13a-15(e) of the Exchange Act) that are reasonably designed to ensure that material information relating to the Company, including its Subsidiaries, required to be included in reports filed under the Exchange Act is made known to the chief executive officer and chief financial officer of the Company by others within those entities. Neither the Company nor, to the Company’s Knowledge, the Company’s independent registered public accounting firm, has identified or been made aware of “significant deficiencies” or “material weaknesses” (as defined by the Public Company Accounting Oversight Board) in the design or operation of the Company’s internal controls and procedures which could reasonably adversely affect the Company’s ability to record, process, summarize and report financial data, in each case which has not been subsequently remediated. To the Company’s Knowledge, there is no fraud, whether or not material, that involves the Company’s management or other employees who have a significant role in the preparation of financial statements or the internal control over financial reporting utilized by the Company and its Subsidiaries. As used of the date hereof, neither the Company nor any of its Subsidiaries has outstanding, “extensions of credit” to directors or executive officers of the Company within the meaning of Section 402 of the Xxxxxxxx-Xxxxx Act of 2002. The Company is in this Agreement, compliance with the termapplicable listing and other rules and regulations of The Nasdaq Global Market.
Appears in 1 contract
Samples: Merger Agreement (Airvana Inc)
SEC Filings; Financial Statements; Information Provided. (a) All The Company has filed, or furnished, as the case may be, all registration statements, forms, reports and other documents (including exhibits and all information incorporated therein) required to be filed by the Company with with, or furnished by the SEC Company to, the Securities and Exchange Commission (the “SEC”) since January 1December 31, 2001 2009. All such registration statements, forms, reports and other documents (including exhibits and all information incorporated therein) filed or furnished after such date (including those that the Company may file after the date hereof until the Closing) are referred to herein as the “Company SEC Reports.” Except as set forth in Section 3.4 of for the Company Disclosure ScheduleCompany’s quarterly report on Form 10-Q filed with the SEC for the period ended December 16, 2014 (the “Q2 Fiscal 2015 Report”), the Company SEC Reports (i) were or will be filed on a timely basis and basis, (ii) were at the time filed, complied, or will be prepared in compliance comply when filed, in all material respects with the applicable requirements of the Securities Act, Act and the Exchange Act, as the case may be, and the rules and regulations of the SEC thereunder applicable to such Company SEC Reports. None of Reports and (iii) did not or will not at the Company SEC Reports when filed, after giving effect to any amendments and supplements thereto time they were or are filed prior to the date hereof, contained contain any untrue statement of a material fact or omitted omit to state any a material fact required to be stated therein in such Company SEC Reports or necessary in order to make the statements thereinin such Company SEC Reports, in the light of the circumstances under which they were made, not misleading. None There are no outstanding or unresolved comments in comment letters received from the SEC or its staff. There has been no material correspondence between the SEC and the Company since December 31, 2009 that is not available on the SEC’s Electronic Data Gathering and Retrieval database. No Subsidiary of the Company’s Subsidiaries has filed, or Company is obligated to file, any forms, reports, schedules, statements or other documents with the SEC. As used in this Section 3.4(a), the term “filed” shall be broadly construed to include any manner in which a document or information is furnished, supplied or otherwise made available subject to the SECreporting requirements of Section 13(a) or Section 15(d) of the Exchange Act.
(b) Each Except for the matters described in the Company’s Q2 Fiscal 2015 Report and the Company’s quarterly report on Form 10-Q filed with the SEC for the period ended March 10, 2015 (the “Q3 Fiscal 2015 Report”), each of the consolidated financial statements (including, in each case, any related notes and schedules) contained or incorporated by reference or to be contained or incorporated by reference in the Company SEC Reports at the time filed (i) complied or will comply as to form in all material respects with applicable accounting requirements and the published rules and regulations of the SEC with respect thereto, (ii) were or will be prepared in accordance with United States generally accepted accounting principles (“GAAP”) applied on a consistent basis throughout the periods involved (except as may be indicated in the notes to such financial statements or, in the case of unaudited interim financial statements, as permitted by the SEC on Form 10-Q under the Exchange Act or for normal year-end adjustmentsAct) and (iii) fairly presented or will fairly present in all material respects the consolidated financial position of the Company and its Subsidiaries as of the dates thereof indicated and the consolidated results of its their operations and cash flows for the periods indicated, except that the unaudited interim financial statements were or are subject to normal and recurring year-end adjustments that have not been and are not expected to be material to the Company. The unaudited balance sheet of the Company as of June 30, 2004 is referred to herein as the “Company Balance Sheetadjustments.”
(c) The information to be supplied by or on behalf of the Company for inclusion in the registration proxy statement on Form S-4 pursuant to which the Company Series A Preferred Stock issued in the Merger and the Company Common Stock issuable upon conversion of the Company Series A Preferred Stock will be registered under the Securities Act (including any amendments or supplements, the “Registration Statement”), shall not at the time the Registration Statement is declared effective by the SEC contain any untrue statement of a material fact or omit to state any material fact required to be stated in the Registration Statement or necessary in order to make the statements in the Registration Statement not misleading. The information to be supplied by the Company for inclusion in the joint proxy statement/prospectus (the “Proxy Statement”) to be sent to the stockholders shareholders of the Company in connection with the meeting of the Company’s stockholders Company Shareholder Meeting (as defined in Section 5.5(a)) (as amended or supplemented from time to consider the adoption of this Agreement time and the Merger (including any document incorporated by reference therein, the “Company MeetingProxy Statement”) and the Partners in connection with the Fund Consent Solicitation (as herein defined) shall not, on the date the Proxy Statement is first mailed to stockholders shareholders of the Company and or on any other date of filing with the PartnersSEC, or at the time of the Company Meeting and at the Effective TimeShareholder Meeting, contain any statement whichthat, at such time and in light of the circumstances under which it shall be made, is false or misleading with respect to any material fact, or omit omits to state any material fact necessary in order to make the statements made in the Proxy Statement therein not false or misleading; misleading in light of the circumstances under which they were or omit shall be made, or omits to state any material fact necessary to correct any statement in any earlier communication with respect to the solicitation of proxies for the Company Shareholder Meeting or the solicitation of consents in connection with the Fund Consent Solicitation which that has become false or misleading; provided, however, that the Company makes no representation or warranty to Parent as to the accuracy of any information described in Section 4.4 of this Agreement. The Proxy Statement will comply in all material respects with the requirements of the Exchange Act. If at any time prior to before the Effective Time Company Shareholder Meeting any fact or event relating to the Company, any Affiliate (as defined below) of the Company, Company or any officers or directors of any of them, should be discovered by the Company which its Affiliates that should be set forth in an amendment to the Registration Statement or a supplement to the Proxy StatementStatement should be discovered by the Company or should, to the Company’s knowledge, occur, the Company shall shall, promptly after becoming aware thereof, inform Parent of such fact or event and take all actions necessary to so amend or supplement the FundProxy Statement. As used in For purposes of this Agreement, the termterm “Affiliate” when used with respect to any party means any person who is an “affiliate” of that party within the meaning of Rule 405 promulgated under the Securities Act.
(d) Except for the matters described in the Company’s Q2 and Q3 Fiscal 2015 Reports, the Company maintains (i) disclosure controls and procedures required by Rule 13a-15 or 15d-15 under the Exchange Act, which disclosure controls and procedures are effective to ensure that all information required to be disclosed by the Company, including its Subsidiaries, in the reports that it files or submits under the Exchange Act, is accumulated and communicated to the Company’s management, including its Chief Executive Officer and Chief Financial Officer, as appropriate to allow timely decisions regarding required disclosure; and (ii) 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: (A) pertain to the maintenance of records that in reasonable detail accurately and fairly reflect the transactions and dispositions of the assets of the Company and its Subsidiaries; (B) provide reasonable assurance that transactions are recorded as necessary to permit preparation of financial statements in conformity with GAAP and that receipts and expenditures are being made only in accordance with authorizations of management and directors of the Company; and (C) provide reasonable assurance regarding prevention or timely detection of unauthorized acquisition, use or disposition of the assets of the Company or its Subsidiaries that could have a material effect on the financial statements.
(e) Except as disclosed in the Q2 and Q3 Fiscal 2015 Reports: (i) 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 Saxxxxxx-Xxxxx Xct for the fiscal year ended June 3, 2014, and such assessment concluded that such controls were effective, (ii) the Company has continued to maintain an effective system of internal controls and there were no changes in the Company’s internal control over financial reporting since June 3, 2014 that have materially affected, or are reasonably likely to materially affect, the Company’s internal control over financial reporting, and (iii) since December 31, 2009, neither the Company nor, to the knowledge of the Company, the Company’s independent registered accountant has identified or been made aware of: (a) any significant deficiency or material weakness in the design or operation of internal control over financial reporting utilized by the Company; (b) any illegal act or fraud, whether or not material, that involves the Company’s management or other employees; or (c) any claim or allegation regarding any of the foregoing.
(f) Except as disclosed in the Q2 and Q3 Fiscal 2015 Reports, since December 31, 2009, subject to any applicable grace periods, the Company and each of its officers and directors have been in compliance in all material respects with (i) the applicable listing, corporate governance and other rules and regulations of the New York Stock Exchange, (ii) the applicable provisions of Saxxxxxx-Xxxxx Xct of 2002, as amended and including the rules and regulations promulgated thereunder, and (iii) all requirements under rules under the Exchange Act. Neither the Company nor any of its Subsidiaries has outstanding (nor has arranged or modified since the enactment of the Saxxxxxx-Xxxxx Xct) any “extensions of credit” to directors or executive officers of the Company or any of its Subsidiaries.
(g) Neither the Company nor of its Subsidiaries is a party to or has any obligation or other commitment to become a party to any securitization transaction, off-balance sheet partnership or any similar agreement where the result, purpose or intended effect of such agreement is to avoid disclosure of any material transaction involving, or material liabilities of, the Company or any of its Subsidiaries in any of the Company’s published financial statements or other Company SEC Reports.
(h) Except as disclosed in the Q2 and Q3 Fiscal 2015 Reports, to the knowledge of the Company, none of the Company SEC Reports is the subject of ongoing SEC review and there are no inquiries or investigations by the SEC or any internal investigations pending or threatened, in each case regarding any accounting practices of the Company or its Subsidiaries.
Appears in 1 contract
SEC Filings; Financial Statements; Information Provided. (a) All The Company has filed or furnished all registration statements, forms, reports and other documents required to be filed or furnished by the Company with the SEC since January 1, 2001 2016. All such registration statements, forms, reports and other documents, as such documents have been amended since the time of their filing or furnishing (including exhibits and all other information incorporated therein and those registration statements, forms, reports and other documents that the Company may file or furnish after the date hereof until the Closing) are referred to herein as the “Company SEC Reports.” Except As of their respective dates and if amended prior to the date hereof, as set forth in Section 3.4 of the Company Disclosure Scheduledate of the last such amendment, the Company SEC Reports (i) were were, and the Company SEC Reports filed or furnished after the date hereof will be be, filed or furnished on a timely basis and basis, (ii) were at the time filed or furnished complied, and with respect to the Company SEC Reports filed or furnished after the date hereof will be prepared in compliance comply, as to form in all material respects with the applicable requirements of the Securities Act, Act and the Exchange Act, as the case may be, Act applicable to such Company SEC Reports. None of Reports and (iii) did not at the time they were filed or furnished, and the Company SEC Reports when filed, filed or furnished after giving effect to any amendments and supplements thereto filed prior to the date hereofhereof will not, contained contain any untrue statement of a material fact or omitted omit to state any a material fact required to be stated therein in such Company SEC Reports or necessary in order to make the statements thereinin such Company SEC Reports, in the light of the circumstances under which they were made, not misleading. None As of the date hereof, there are no outstanding or unresolved comments received from the SEC with respect to the Company SEC Reports. To the Company’s Subsidiaries has filedKnowledge, or is obligated to file, any forms, reports, schedules, statements or other documents with as of the SEC. As used in this Section 3.4(a)date hereof, the term “filed” shall be broadly construed to include Company has not received any manner in which a document or information written notification that any of the Company SEC Reports is furnished, supplied or otherwise made available to the SECsubject of any material ongoing SEC investigation.
(b) Each of the consolidated financial statements (including, in each case, any related notes and schedules) contained in or to be contained in incorporated by reference into the Company SEC Reports at the time filed (i) complied or will comply as to form in all material respects with applicable accounting requirements and the published rules and regulations of the SEC with respect thereto, (ii) were or will be prepared in accordance with generally accepted accounting principles (“GAAP”) GAAP applied on a consistent basis throughout the periods involved (except as may be indicated therein or in the notes to such financial statements or, in the case of unaudited interim financial statements, as permitted by the SEC on Form 10-Q under the Exchange Act or for normal year-end adjustments) Act), and (iii) fairly presented or will fairly present in all material respects the consolidated financial position of the Company and its Subsidiaries as of the dates thereof indicated and the consolidated results of its operations and cash flows for the periods indicated, except that the unaudited interim financial statements were or are subject to normal and recurring year-end adjustments that have not been and are not expected to be material to the Company. The unaudited balance sheet of the Company as of June 30, 2004 is referred to herein as the “Company Balance Sheetadjustments.”
(c) The information Subject to be supplied by the following sentence, (i) the Information Statement or Proxy Statement, as applicable, on the date it is first mailed to holders of shares of Company for inclusion Common Stock, in the registration statement case of the Information Statement, on Form S-4 pursuant the date that is twenty (20) calendar days after the Information Statement is first mailed to which the holders of shares of Company Series A Preferred Stock issued Common Stock, in the Merger and case of the Company Common Stock issuable upon conversion mailing of the Proxy Statement, at the time of the Company Series A Preferred Stock will be registered under Stockholders Meeting, and if either is amended or supplemented, at the Securities Act (including time of any amendments amendment or supplements, the “Registration Statement”)supplement thereto, shall not at the time the Registration Statement is declared effective by the SEC contain any untrue statement of a material fact or omit to state any material fact required to be stated in the Registration Statement therein or necessary in order to make the statements therein, in light of the circumstances in which they shall be made, not misleading and (ii) the Information Statement or Proxy Statement, as applicable, will comply as to form in all material respects with the requirements of the Exchange Act applicable thereto. Notwithstanding the foregoing, the Company makes no representation or warranty with respect to statements included or incorporated by reference in the Registration Information Statement not misleadingor Proxy Statement, as applicable, based on any information supplied by or on behalf of the Parent, US Holdco or the Merger Sub or which relates to the Parent, US Holdco or the Merger Sub and is approved by the Parent, US Holdco or the Merger Sub for inclusion or incorporation by reference therein.
(d) The Company is in compliance in all material respects with the applicable rules and regulations of the Xxxxxxxx-Xxxxx Act. Each required form, report and document containing financial statements that has been filed with or submitted to the SEC was accompanied by any certifications required to be filed or submitted by the Company’s principal executive officer and principal financial officer pursuant to the Xxxxxxxx-Xxxxx Act and, at the time of filing or submission of each such certification, any such certification complied in all material respects with the applicable provisions of the Xxxxxxxx-Xxxxx Act.
(e) The Company maintains disclosure controls and procedures required by Rule 13a-15 or 15d-15 under the Exchange Act. The Company has designed such disclosure controls and procedures to provide reasonable assurance that all information concerning the Company that could have a material effect on the financial statements is made known on a timely basis to the individuals responsible for the preparation of the Company’s filings with the SEC and other public disclosure documents. The Company is in compliance in all material respects with the applicable listing and other rules and regulations of the New York Stock Exchange.
(f) The Company has established and maintains a system of internal control over financial reporting (as defined in Rules 13a-15(f) and 15d-15(f) under the Exchange Act) designed to provide reasonable assurance (i) that transactions are recorded as necessary to permit preparation of financial statements in conformity with GAAP consistently applied, (ii) that transactions are executed only in accordance with the authorization of management and (iii) regarding prevention or timely detection of the unauthorized acquisition, use or disposition of the Company’s properties or assets.
(g) The information supplied or to be supplied by or on behalf of the Company, or which relates to the Company and the text of the disclosure thereof is specifically approved in writing by the Company (including via email), for inclusion in (i) the joint proxy statement/prospectus Parent Shareholders Circular (the “Proxy Statement”) to be sent to the stockholders of the Company in connection with the meeting of the Company’s stockholders to consider the adoption of this Agreement and the Merger (the “Company Meeting”) and the Partners in connection with the Fund Consent Solicitation (as herein defined) shall notor any amendment or supplement thereto), on the date the Proxy Statement Parent Shareholders Circular is first mailed to stockholders of the Company and the Partnersor posted, at the time of the Company Meeting any amendment or supplement thereto and at the Effective Timetime of the Parent Stockholders Meeting or (ii) any announcement to any Regulatory Information Service in connection with the Merger, the Rights Issue, the Readmission or the Parent Shareholders Circular (or any amendment or supplement thereto), at the time such documents in their final form are first published, shall not contain any untrue statement which, at such time and in light of the circumstances under which it shall be made, is false or misleading with respect to any a material fact, fact or omit to state any material fact necessary in order required to make the statements made therein, in light of the Proxy Statement circumstances in which they shall be made, not false or misleading; or omit to state any material fact necessary to correct any statement in any earlier communication with respect to the solicitation of proxies for the Company Meeting or the solicitation of consents in connection with the Fund Consent Solicitation which has become false or misleading. If at any time prior to the Effective Time any event relating to the Company.
(h) Since January 1, any Affiliate (as defined below) 2016, none of the Company, the Company’s independent accountants, the Company Board or the audit committee of the Company Board has received any officers or directors written notification of any (i) “significant deficiency” in the internal controls over financial reporting of themthe Company, should be discovered by (ii) “material weakness” in the internal controls over financial reporting of the Company which should or (iii) fraud, whether or not material, that involves management or other employees of the Company who have a significant role in the internal controls over financial reporting of the Company.
(i) Except for such items that are of the type to be set forth in an amendment the notes to the Registration Statement or a supplement to consolidated financial statements of the Proxy StatementCompany, the Company shall promptly inform is not a party to any material “off-balance sheet arrangements” (as defined in Item 303(a)(4)(ii) of Regulation S-K of the Fund. As used in this Agreement, the termSEC).
Appears in 1 contract
SEC Filings; Financial Statements; Information Provided. (a) All forms, reports and other documents Galileo has filed or furnished all SEC Documents required to be filed or furnished by the Company Galileo with the SEC since January 1, 2001 2008. All such SEC Documents (including those that the Company Galileo may file or furnish after the date hereof until the Closing) are referred to herein as the “Company Galileo SEC ReportsDocuments.” Except as set forth in Section 3.4 All of the Company Disclosure ScheduleGalileo SEC Documents are publicly available on the SEC’s XXXXX system. Galileo has made available to Xxxxxx copies of all comment letters received by Galileo from the staff of the SEC since January 1, the Company 2008, and all responses to such comment letters by or on behalf of Galileo. All Galileo SEC Reports Documents (ix) were or will be filed or furnished on a timely basis and basis, (iiy) at the time filed, were or will be prepared in compliance in all material respects with the applicable requirements of the Securities Act, the Exchange Act and the Exchange ActXxxxxxxx-Xxxxx Act of 2002 (“SOX”), as the case may be, and the rules and regulations of the SEC thereunder applicable to such Company Galileo SEC Reports. None of Documents, and (z) did not or will not at the Company SEC Reports when filed, after giving effect to any amendments and supplements thereto time they were or are filed prior to the date hereof, contained or furnished contain any untrue statement of a material fact or omitted omit to state any a material fact required to be stated therein in such Galileo SEC Documents or necessary in order to make the statements thereinin such Galileo SEC Documents, in the light of the circumstances under which they were made, not misleading. None No Subsidiary of Galileo is subject to the reporting requirements of Section 13 or Section 15(d) of the Company’s Subsidiaries has filed, or is obligated to file, any forms, reports, schedules, statements or other documents with the SEC. As used in this Section 3.4(a), the term “filed” shall be broadly construed to include any manner in which a document or information is furnished, supplied or otherwise made available to the SECExchange Act.
(b) Each of the consolidated financial statements (including, in each case, any related notes and schedules) contained or to be contained in the Company Galileo SEC Reports Documents at the time filed or furnished (i) complied or will comply as to form in all material respects with applicable accounting requirements and the published rules and regulations of the SEC with respect theretothereto (including Regulation S-X), (ii) were or will be prepared in accordance with United States generally accepted accounting principles (“GAAP”) applied on a consistent basis throughout the periods involved and at the dates involved (except as may be indicated in the notes to such financial statements or, in the case of unaudited statements, as permitted by the SEC on Form 10-Q under the Exchange Act or for normal year-end adjustments) Act), and (iii) fairly presented or will fairly present the consolidated financial position of the Company Galileo and its Subsidiaries as of the dates thereof and the consolidated results of its operations and cash flows for the periods indicated, consistent with the books and records of Galileo and its Subsidiaries, except that the unaudited interim financial statements were or are subject to normal and recurring year-end adjustments that have which were not been and or are not expected to be material to the Companyin amount or effect. The consolidated, unaudited balance sheet of the Company Galileo as of June 30March 31, 2004 2008 is referred to herein as the “Company Galileo Balance Sheet.”
(c) The information to be supplied by the Company or on behalf of Galileo for inclusion or incorporation by reference in the registration statement on Form S-4 to be filed by New Parent pursuant to which the Company Series A Preferred shares of New Parent Common Stock issued in connection with the Merger and the Company Common Stock issuable upon conversion of the Company Series A Preferred Stock will Combinations shall be registered under the Securities Act (including any amendments or supplements, the “Registration Statement”), or to be included or supplied by or on behalf of Galileo for inclusion in any filing pursuant to Rule 165 and Rule 425 under the Securities Act or Rule 14a-12 under the Exchange Act (each a “Regulation M-A Filing”), shall not at the time the Registration Statement or any such Regulation M-A Filing is filed with the SEC, at any time it is amended or supplemented, or at the time the Registration Statement is declared effective by the SEC SEC, as applicable, contain any untrue statement of a material fact or omit to state any material fact required to be stated in the Registration Statement therein or necessary in order to make the statements in the Registration Statement therein not misleading. The information to be supplied by the Company or on behalf of Galileo for inclusion or incorporation by reference in the joint proxy statement/prospectus (the “Joint Proxy Statement/Prospectus”) to be sent to the stockholders shareholders of the Company Galileo and Xxxxxx in connection with the meeting of the Company’s stockholders to consider the adoption of this Agreement Galileo Meeting and the Merger (the “Company Xxxxxx Meeting”) and the Partners in connection with the Fund Consent Solicitation (as herein defined) , shall not, on the date the Joint Proxy Statement Statement/Prospectus is first mailed to stockholders shareholders of the Company and the PartnersGalileo or Xxxxxx, or at the time of the Company Galileo Meeting and or the Xxxxxx Meeting or at the Effective Time, contain any untrue statement which, at such time and in light of the circumstances under which it shall be made, is false or misleading with respect to any a material fact, fact or omit to state any material fact required to be stated therein or necessary in order to make the statements made in the Joint Proxy Statement Statement/Prospectus, in the light of the circumstances under which they were made, not false or misleading; or omit to state any material fact necessary to correct any statement in any earlier communication with respect to the solicitation of proxies for the Company Galileo Meeting or the solicitation of consents in connection with the Fund Consent Solicitation Xxxxxx Meeting which has become false or misleading. If at any time prior to the Effective Time any event relating to the Company, any Affiliate (as defined below) of the Company, or any officers or directors of any of them, should be discovered by the Company which should be set forth in an amendment to the Registration Statement or a supplement to the Proxy Statement, the Company shall promptly inform the Fund. As used in this Agreement, the term.
Appears in 1 contract
SEC Filings; Financial Statements; Information Provided. (a) All The Company has filed all registration statements, forms, reports and other documents required to be filed by the Company with the SEC since January 1April 20, 2001 2000, and all such registration statements, forms, reports and other documents are available on the SEC's Electronic Data Gathering Analysis and Retrieval System ("EDGAX"). All such registration statements, forms, reports and other documents (including those that the Company may file after the date hereof until the Closing) are referred to herein as the “Company SEC Reports.” Except as set forth in Section 3.4 of the Company Disclosure Schedule, the Company SEC Reports (i) were or will be filed on a timely basis and (ii) were or will be prepared in compliance in all material respects with the applicable requirements of the Securities Act, and the Exchange Act, as the case may be, applicable to such Company SEC Reports. None of the Company SEC Reports when filed, after giving effect to any amendments and supplements thereto filed prior to the date hereof, 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. None of the Company’s Subsidiaries has filed, or is obligated to file, any forms, reports, schedules, statements or other documents with the SEC. As used in this Section 3.4(a), the term “filed” shall be broadly construed to include any manner in which a document or information is furnished, supplied or otherwise made available to the SEC.date
(b) Each of the consolidated financial statements (including, in each case, any related notes and schedules) contained or to be contained in the Company SEC Reports at the time filed (i) complied or will comply as to form in all material respects with applicable accounting requirements and the published rules and regulations of the SEC with respect thereto, (ii) were or will be prepared in accordance with United States generally accepted accounting principles (“"GAAP”") applied on a consistent basis throughout the periods involved (except as may be indicated in the notes to such financial statements or, in the case of unaudited statements, as permitted by the SEC on Form 10-Q under the Exchange Act or for normal year-end adjustmentsand published rules and regulations of the SEC thereunder) and (iii) fairly presented or will fairly present in accordance with GAAP the consolidated financial position of the Company and its Subsidiaries as of the dates thereof and the consolidated results of its operations and cash flows for the periods indicated, consistent with the books and records of the Company and its Subsidiaries, except that the unaudited interim financial statements were or are subject to normal and recurring year-end adjustments that have which were not been and are or will not expected to be material to the Companyin amount. The consolidated, unaudited balance sheet of the Company as of June 30March 31, 2004 2001 is referred to herein as the “"Company Balance Sheet".”
(c) The information related to the Company to be supplied by or on behalf of the Company for inclusion or incorporation by reference in the registration statement on Form S-4 to be filed by the Buyer pursuant to which the Company Series A Preferred shares of Buyer Common Stock issued in connection with the Merger and the Company Common Stock issuable upon conversion of the Company Series A Preferred Stock will shall be registered under the Securities Act (including any amendments or supplements, the “"Registration Statement”"), or for inclusion in any filing pursuant to Rule 165 or Rule 425 (or other applicable rules) under the Securities Act or Rule 14a-12 (or other applicable rules) under the Exchange Act (each a "Regulation MA Filing"), shall not at the time the Registration Statement or any Regulation MA Filing is filed with the SEC, at any time it is amended or supplemented (provided that the filing of such amendment or supplement has been approved by the Company, which approval shall not be unreasonably withheld or delayed), or at the time the Registration Statement is declared effective by the SEC contain any untrue statement of a material fact or omit to state any material fact required to be stated in the Registration Statement therein or necessary in order to make the statements in the Registration Statement therein not misleading. The information related to the Company to be supplied by the Company for inclusion in the joint proxy statement/prospectus (the “Proxy Statement”) to be sent to the stockholders of the Company and the Buyer in connection with the meeting of the Company’s 's stockholders to consider the adoption of this Agreement and the Merger (the “"Company Stockholders Meeting”") and the Partners in connection with the Fund Consent Solicitation meeting of the Buyer's stockholders (as herein definedthe "Buyer Stockholders Meeting") to consider the issuance of shares of Buyer Common Stock pursuant to the Merger (the "Joint -13- 21 Proxy Statement/Prospectus") shall not, on the date the Joint Proxy Statement Statement/Prospectus is first mailed to stockholders of the Company and or the PartnersBuyer, at the time of the Company Stockholders Meeting and the Buyer Stockholders Meeting or at the Effective Time, contain any statement which, at such time and in light of the circumstances under which it shall be made, is false or misleading with respect to any material fact, or omit to state any material fact necessary in order to make the statements made in the Joint Proxy Statement Statement/Prospectus not false or misleading; or omit to state any material fact necessary to correct any statement in any earlier communication with respect to the solicitation of proxies for the Company Stockholders Meeting or the solicitation of consents in connection with the Fund Consent Solicitation Buyer Stockholders Meeting which has become false or misleading. If at any time prior to the Effective Time any event relating to the Company, any Affiliate (as defined below) of the Company, Company or any of its Affiliates, officers or directors of any of them, should be discovered by the Company which should be set forth in an amendment to the Registration Statement or a supplement to the Joint Proxy Statement/Prospectus, the Company shall promptly inform the Fund. As used in this Agreement, the termBuyer.
Appears in 1 contract
Samples: Merger Agreement (Perkinelmer Inc)
SEC Filings; Financial Statements; Information Provided. (a) All Except as set forth on Schedule 4.6, Buyer has filed all forms, reports reports, certifications and other documents required to be filed by the Company Buyer with the SEC since January 1, 2001 (including those that the Company may file after 2018. All such forms, reports and other documents, as amended prior to the date hereof until the Closing) are referred to herein as the “Company Buyer SEC Reports.” Except as set forth in Section 3.4 All of the Company Disclosure Schedule, the Company Buyer SEC Reports (iA) were at the time filed (or will be filed on a timely basis and (ii) were or will be prepared in compliance if amended prior to the date hereof, when so amended), complied as to form in all material respects with the applicable requirements of the Securities Act, Act and the Exchange Act, as the case may be, Act applicable to such Company SEC Reports. None of the Company Buyer SEC Reports when filed, after giving effect to any amendments and supplements thereto (B) did not at the time they were filed (or if amended prior to the date hereof, contained when so amended) contain any untrue statement of a material fact or omitted omit to state any a material fact required to be stated therein in such Buyer SEC Reports or necessary in order to make the statements thereinin such Buyer SEC Reports, in the light of the circumstances under which they were made, not misleading. None of the Company’s Subsidiaries has filed, or is obligated to file, in any forms, reports, schedules, statements or other documents with the SEC. As used in this Section 3.4(a), the term “filed” shall be broadly construed to include any manner in which a document or information is furnished, supplied or otherwise made available to the SECmaterial respect.
(b) Each of the The consolidated financial statements of the Buyer (including, in each case, any related notes and schedules) contained or to be contained in the Company Buyer SEC Reports at the time filed (or if amended prior to the date hereof, when so amended) (i) complied or will comply as to form in all material respects with applicable accounting requirements and the published rules and regulations of the SEC with respect thereto, (ii) were or will be prepared in accordance with generally accepted accounting principles (“GAAP”) GAAP applied on a consistent basis throughout the periods involved and at the dates involved (except as may be indicated in the notes to such financial statements or, in the case of unaudited interim financial statements, as permitted by the SEC on Form 10-Q under the Exchange Act or for normal year-end adjustmentsAct) and (iii) fairly presented or will fairly present in all material respects the consolidated financial position of the Company Buyer and its Subsidiaries as of the dates thereof indicated and the consolidated assets, liabilities, business, financial condition, results of its operations and cash flows for the periods indicated, consistent with the books and records of Buyer and its Subsidiaries, except that the unaudited interim financial statements were or are subject to normal and recurring year-end adjustments that have not been and are not expected to be material to the Companyadjustments. The unaudited consolidated balance sheet of the Company Buyer as of June 30December 31, 2004 2019 is referred to herein as the “Company Buyer Balance Sheet.”
(c) The information K. X. Xxxxxxxxx Ltd., Buyer’s current auditors, is and has been at all times since its engagement by Buyer (i) “independent” with respect to be supplied by Buyer within the Company for inclusion meaning of Regulation S-X and (ii) in compliance with subsections (g) through (l) of Section 10A of the registration statement on Form S-4 pursuant Exchange Act (to which the Company Series A Preferred Stock issued in the Merger extent applicable) and the Company Common Stock issuable upon conversion related rules of the SEC and the Public Company Series A Preferred Stock will be registered Accounting Oversight Board.
(d) Buyer has established and maintains 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 under the Securities Act (including any amendments or supplements, Exchange Act) as required by Rule 13a-15 under the “Registration Statement”), shall not at the time the Registration Statement is declared effective by the SEC contain any untrue statement of a Exchange Act. Buyer’s disclosure controls and procedures are reasonably designed to ensure that all material fact or omit to state any material fact information required to be stated disclosed by Buyer in the Registration Statement reports that it files or necessary furnishes under the Exchange Act is recorded, processed, summarized and reported within the time periods specified in order the rules and forms of the SEC, and that all such material information is accumulated and communicated to Buyer’s management as appropriate to allow timely decisions regarding required disclosure and to make the statements certifications required pursuant to Sections 302 and 906 of the Sxxxxxxx-Xxxxx Act. Since January 1, 2018, Buyer’s principal executive officer and its principal financial officer have disclosed to Buyer’s auditors and the audit committee of the Buyer Board all known (i) significant deficiencies and material weaknesses in the Registration Statement not misleading. The information design or operation of internal controls over financial reporting that are reasonably likely to be supplied by the Company for inclusion in the joint proxy statement/prospectus (the “Proxy Statement”) to be sent to the stockholders of the Company in connection with the meeting of adverse and materially affect the Company’s stockholders ability to consider record, process, summarize and report financial information, (ii) material weaknesses in the adoption design and operation of this Agreement internal controls over financial reporting, and (iii) any fraud, whether or not material, that involves the management or other employees who have a significant role in the Buyer’s internal controls over financial reporting. Each of the Buyer and its Subsidiaries have materially complied with or substantially addressed such deficiencies, material weaknesses and/or fraud.
(e) Buyer is in compliance in all material respects with the applicable provisions of the Sxxxxxxx-Xxxxx Act and the Merger (Dxxx-Fxxxx Xxxx Street Reform and Consumer Protection Act. Each required form, report and document containing financial statements that has been filed with or submitted to the “Company Meeting”) SEC was accompanied by any certifications required to be filed or submitted by Buyer’s principal executive officer and principal financial officer pursuant to the Partners in connection with the Fund Consent Solicitation (as herein defined) shall not, on the date the Proxy Statement is first mailed to stockholders of the Company and the PartnersSxxxxxxx-Xxxxx Act and, at the time of filing or submission of each such certification, any such certification complied in all material respects with the Company Meeting and at the Effective Time, contain any statement which, at such time and in light applicable provisions of the circumstances under which it shall be madeSxxxxxxx-Xxxxx Act. Neither Buyer nor any of its executive officers has received written notice from any Governmental Entity challenging or questioning the accuracy, is false completeness, form or misleading with respect to any material fact, or omit to state any material fact necessary in order to make the statements made in the Proxy Statement not false or misleading; or omit to state any material fact necessary to correct any statement in any earlier communication with respect to the solicitation manner of proxies for the Company Meeting or the solicitation filing of consents in connection with the Fund Consent Solicitation which has become false or misleading. If at any time prior to the Effective Time any event relating to the Company, any Affiliate such certifications.
(as defined belowf) As of the Company, or any officers or directors date of any of them, should be discovered by the Company which should be set forth in an amendment to the Registration Statement or a supplement to the Proxy Statement, the Company shall promptly inform the Fund. As used in this Agreement, the termBuyer has timely responded to all comment letters of the staff of the SEC relating to the Buyer SEC Reports, and the SEC has not advised the Buyer that any final responses are inadequate, insufficient or otherwise non-responsive. The Buyer has made available to the Seller true, correct and complete copies of all comment letters, written inquiries and enforcement correspondence between the SEC, on the one hand, and the Buyer and any of its Subsidiaries, on the other hand, occurring since January 1, 2018 and will, reasonably promptly following the receipt thereof, make available to the Company any such correspondence sent or received after the date hereof. To the knowledge of the Buyer, as of the date of this Agreement, none of the Buyer SEC Reports is the subject of ongoing SEC review or outstanding SEC comment.
Appears in 1 contract
Samples: Share Exchange Agreement (Madison Technologies Inc.)
SEC Filings; Financial Statements; Information Provided. (a) All The Company has filed all registration statements, forms, reports reports, certifications and other documents required to be filed by the Company with the SEC since it became an SEC reporting company, and has made available to the Buyer copies of all registration statements, forms, reports, certifications and other documents filed by the Company (or incorporated by reference in registration statements, forms, reports, certifications and other documents filed by the Company) with the SEC since January 1, 2001 2008, including all certifications and statements required by (i) Rule 13a-14 or 15d-14 of the Exchange Act or (ii) 18 U.S. C. §1350 (Section 906 of the Xxxxxxxx-Xxxxx Act of 2002 (the “Sarbanes Act”) and including complete unredacted copies of all documents redacted or withheld pursuant to a confidential treatment request. All such registration statements, forms, reports, certifications and other documents (including those that the Company may file after the date hereof until the Closing) are referred to herein as the “Company SEC ReportsDocuments.” Except as set forth in Section 3.4 All of the Company Disclosure Schedule, SEC Documents are publicly available on the SEC’s XXXXX system (except to the extent of material redacted or withheld pursuant to confidential treatment requests). The Company has made available to the Buyer copies of all comment letters received by the Company from the staff of the SEC Reports since January 1, 2006 and all responses to such comment letters by or on behalf of the Company. The Company SEC Documents (ix) were or will be filed on a timely basis and basis, (iiy) at the time filed, were or will be prepared in compliance in all material respects with the applicable requirements of the Securities Act, Act and the Exchange Act, as the case may be, and the rules and regulations of the SEC thereunder applicable to such Company SEC Reports. None of Documents, and (z) did not or will not at the Company SEC Reports when filed, after giving effect to any amendments and supplements thereto time they were or are filed prior to the date hereof, contained contain any untrue statement of a material fact or omitted omit to state any a material fact required to be stated therein in such Company SEC Documents or necessary in order to make the statements thereinin such Company SEC Documents, in the light of the circumstances under which they were made, not misleading. None No Subsidiary of the Company’s Subsidiaries has filed, Company is subject to the reporting requirements of Section 13 or is obligated to file, any forms, reports, schedules, statements or other documents with Section 15(d) of the SECExchange Act. As used in this Section 3.4(a)3.5, the term “filedfile” shall be broadly construed to include any manner in which a document or information is furnished, supplied or otherwise made available to the SEC, whether or not it is deemed “filed” for purposes of Section 18 of the Exchange Act.
(b) Each of the consolidated financial statements (including, in each case, any related notes and schedules) contained or to be contained in the Company SEC Reports Documents at the time filed (i) complied or will comply as to form in all material respects with applicable accounting requirements and the published rules and regulations of the SEC with respect theretothereto (including, without limitation, Regulation S-X), (ii) were or will be prepared in accordance with United States generally accepted accounting principles (“GAAP”) applied on a consistent basis throughout the periods involved and at the dates involved (except as may be indicated in the notes to such financial statements or, in the case of unaudited statements, as permitted by the SEC on Form 10-Q under the Exchange Act or for normal year-end adjustments) Act), and (iii) fairly presented or will fairly present the consolidated financial position of the Company and its Subsidiaries as of the dates thereof and the consolidated results of its operations and cash flows for the periods indicated, consistent with the books and records of the Company and its Subsidiaries, except that the unaudited interim financial statements were or are subject to normal and recurring year-end adjustments that have which were not been and are or will not expected to be material to the Companyin amount or effect. The consolidated, unaudited balance sheet of the Company as of June 30March 31, 2004 2011 is referred to herein as the “Company Balance Sheet.”
(c) Deloitte & Touche LLP, the Company’s current auditors, is and has been at all times since its engagement by the Company (x) “independent” with respect to the Company within the meaning of Regulation S-X and (y) in compliance with subsections (g) through (l) of Section 10A of the Exchange Act (to the extent applicable) and the related rules of the SEC and the Public Company Accounting Oversight Board.
(d) The information to be supplied by or on behalf of the Company for inclusion or incorporation by reference in the registration statement on Form S-4 to be filed by the Buyer pursuant to which the Company Series A Preferred shares of Buyer Common Stock issued in connection with the Merger and the Company Common Stock issuable upon conversion of the Company Series A Preferred Stock will shall be registered under the Securities Act (including any amendments or supplements, the “Registration Statement”), or to be included or supplied by or on behalf of the Company for inclusion in any filing pursuant to Rule 165 and Rule 425 under the Securities Act or Rule 14a-12 under the Exchange Act (each a “Regulation M-A Filing”), shall not at the time the Registration Statement or any such Regulation M-A Filing is filed with the SEC, at any time it is amended or supplemented, or at the time the Registration Statement is declared effective by the SEC SEC, as applicable, contain any untrue statement of a material fact or omit to state any material fact required to be stated in the Registration Statement therein or necessary in order to make the statements in the Registration Statement therein not misleading. The information to be supplied by or on behalf of the Company for inclusion in the joint proxy statement/prospectus (the “Proxy Statement”) to be sent to the stockholders of the Company (the “Proxy Statement/Prospectus”) in connection with the meeting of Company Meeting, which information shall be deemed to include all information about or relating to the Company’s stockholders to consider , the adoption of this Agreement and Company Voting Proposal or the Merger (the “Company Meeting”) and the Partners in connection with the Fund Consent Solicitation (as herein defined) , shall not, on the date the Proxy Statement Statement/Prospectus is first mailed to stockholders of the Company and the PartnersCompany, or at the time of the Company Meeting and or at the Effective Time, contain any statement which, at such time and in light of the circumstances under which it shall be made, is false or misleading with respect to any material fact, or omit to state any material fact necessary in order to make the statements made in the Proxy Statement Statement/Prospectus not false or misleading; or omit to state any material fact necessary to correct any statement in any earlier communication with respect to the solicitation of proxies for the Company Meeting or the solicitation of consents in connection with the Fund Consent Solicitation which has become false or misleading. If at any time prior to the Effective Time any fact or event relating to the Company, any Affiliate (as defined below) of the Company, Company or any officers or directors of any of them, should be discovered by the Company its Affiliates which should be set forth in an amendment to the Registration Statement or a supplement to the Proxy Statement/Prospectus should be discovered by the Company or should occur, the Company shall promptly inform the Fund. As used in this Agreement, the termBuyer of such fact or event.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Advanced Analogic Technologies Inc)
SEC Filings; Financial Statements; Information Provided. (a) All formsThe Company has filed or furnished all registration statements, reports reports, schedules and other documents required to be filed or furnished by the Company it or any of its Subsidiaries with the SEC since January 1December 31, 2001 2005 (collectively, including those that the Company may file after the date hereof until the Closing) are referred to herein as any amendments thereto, the “Company SEC Reports.” Except as set forth in Section 3.4 ”). None of the Company Disclosure ScheduleCompany’s Subsidiaries is required to file periodic reports with the SEC pursuant to the Exchange Act. As of their respective filing dates (or, if amended, as of the date of such amendment), the Company SEC Reports (i) were or will be filed on a timely basis and (ii) were or will be prepared in compliance accordance with, and complied in all material respects with with, the applicable requirements of the Securities Act, Exchange Act and the Exchange Securities Act, as the case may be, applicable to such Company and the rules and regulations of the SEC Reports. None promulgated thereunder, and none of the Company SEC Reports when filed, after giving effect to any amendments and supplements thereto filed prior to the date hereof, contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements made therein, in light of the circumstances under which they were made, not misleading, except to the extent corrected by a Company SEC Report filed subsequently (but before the date hereof). The Company has made available to Buyer true, correct and complete copies of all correspondence between the SEC, on the one hand, and the Company and any of its Subsidiaries, on the other, since December 31, 2005, including all SEC comment letters and responses to such comment letters by or on behalf of the Company. To the knowledge of the Company, as of the date hereof, there are no unresolved comments issued by the staff of the SEC with respect to any of the Company SEC Reports. Each of the financial statements (including the related notes and schedules) of the Company included in, or incorporated by reference into, the Company SEC Reports (the “Company Financials”) complies in all material respects with applicable accounting requirements and the published rules and regulations of the SEC with respect thereto, were prepared in accordance with United States generally accepted accounting principles (“GAAP”) (except, in the case of unaudited financial statements, as permitted by 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 present in all material respects the consolidated financial position of the Company and its consolidated Subsidiaries as of the dates thereof and their consolidated results of operations for the periods then ended (subject, in the case of unaudited financial statements, to normal year-end audit adjustments and the absence of footnotes). The Company has no current intention to correct or restate, and to the knowledge of the Company, there is not any basis to correct or restate any of the Company Financials. The Company has not had any disagreement with any of its auditors regarding material accounting matters or policies during any of its past three full fiscal years or during the current fiscal year-to-date.
(b) None of the information supplied or to be supplied by or on behalf of the Company for inclusion or incorporation by reference in the Schedule 14A proxy statement to be filed with the SEC as part of the definitive proxy materials for the Company Stockholders Meeting or in any other soliciting materials (including such other soliciting materials, the “Proxy Statement”), will, at the time the Proxy Statement or such other soliciting materials are first mailed to the stockholders of the Company or at the time of the Company Stockholders Meeting or as of the Effective Time, contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were are made, not misleading. None of the Company’s Subsidiaries has filed, or is obligated to file, any forms, reports, schedules, statements or other documents with the SEC. As used in this Section 3.4(a), the term “filed” shall be broadly construed to include any manner in which a document or information is furnished, supplied or otherwise made available to the SEC.
(b) Each of the consolidated financial statements (including, in each case, any related notes and schedules) contained or to be contained in the Company SEC Reports (i) complied or will comply as to form in all material respects with applicable accounting requirements and the published rules and regulations of the SEC with respect thereto, (ii) were or will be prepared in accordance with generally accepted accounting principles (“GAAP”) applied on a consistent basis throughout the periods involved (except as may be indicated in the notes to such financial statements or, in the case of unaudited statements, as permitted by the SEC on Form 10-Q under the Exchange Act or for normal year-end adjustments) and (iii) fairly presented or will fairly present the financial position of the Company as of the dates thereof and the results of its operations and cash flows for the periods indicated, except that the unaudited interim financial statements were or are subject to normal and recurring year-end adjustments that have not been and are not expected to be material to the Company. The unaudited balance sheet of the Company as of June 30, 2004 is referred to herein as the “Company Balance Sheet.”
(c) The information to be supplied by the Company for inclusion in the registration statement on Form S-4 pursuant to which the Company Series A Preferred Stock issued in the Merger and the Company Common Stock issuable upon conversion of the Company Series A Preferred Stock will be registered under the Securities Act (including any amendments or supplements, the “Registration Statement”), shall not at the time the Registration Statement is declared effective by the SEC contain any untrue statement of a material fact or omit to state any material fact required to be stated in the Registration Statement or necessary in order to make the statements in the Registration Statement not misleading. The information to be supplied by the Company for inclusion in the joint proxy statement/prospectus (the “Proxy Statement”) to be sent to the stockholders of the Company in connection with the meeting of the Company’s stockholders to consider the adoption of this Agreement and the Merger (the “Company Meeting”) and the Partners in connection with the Fund Consent Solicitation (as herein defined) shall not, on the date the Proxy Statement is first mailed to stockholders of the Company and the Partners, at the time of the Company Meeting and at the Effective Time, contain any statement which, at such time and in light of the circumstances under which it shall be made, is false or misleading with respect to any material fact, or omit to state any material fact necessary in order to make the statements made in the Proxy Statement not false or misleading; or omit to state any material fact necessary to correct any statement in any earlier communication with respect to the solicitation of proxies for the Company Meeting or the solicitation of consents in connection with the Fund Consent Solicitation which has become false or misleading. If at any time prior to before the Effective Time Company Stockholders Meeting any fact or event relating to the Company, any Affiliate (as defined below) of the Company, Company or any officers or directors of any of them, should be discovered by the Company its Affiliates which should be set forth in an amendment to the Registration Statement or a supplement to the Proxy StatementStatement should be discovered by the Company or should occur, the Company shall shall, promptly after becoming aware thereof, inform Buyer of such fact or event. Notwithstanding the Fundforegoing, no representation or warranty is made by the Company with respect to statements made or incorporated by reference therein about Buyer or Merger Sub supplied by Buyer or Merger Sub for inclusion or incorporation by reference in the Proxy Statement. As used in For purposes of this Agreement, the termterm “Affiliate” when used with respect to any Person shall mean any Person who is an “affiliate” of that Person within the meaning of Rule 405 under the Securities Act.
(c) The Company maintains disclosure controls and procedures as required by Rule 13a-15 under the Exchange Act to ensure that all material information concerning the Company and its Subsidiaries is made known on a timely basis to the individuals responsible for the preparation of the Company’s filings with the SEC and other public disclosure documents, and all such material information that is 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. The Company has established and maintains a system of internal control over financial reporting required by Rules 13a-15(f) of the Exchange Act sufficient to provide reasonable assurances regarding the reliability of financial reporting and the preparation of its consolidated financial statements in accordance with GAAP including policies and procedures that (i) require the maintenance of records that, in reasonable detail, accurately and fairly reflect the transactions and dispositions of the assets of the Company and its Subsidiaries, (ii) provide reasonable assurance that material information relating to the Company and its Subsidiaries is promptly made known to the officers responsible for establishing and maintaining the system of internal controls, (iii) provide assurance that transactions are recorded as necessary to permit preparation of financial statements in accordance with GAAP, and that receipts and expenditures of the Company and its Subsidiaries are being made only in accordance with appropriate authorizations of management and the Company Board, (iv) provide reasonable assurance that access to assets is permitted only in accordance with management’s general or specific authorization, (v) provide reasonable assurance that the reporting of assets is compared with existing assets at regular intervals and appropriate action is taken with respect to any differences, (vi) provide reasonable assurance regarding prevention or timely detection of unauthorized acquisition, use or disposition of the assets of the Company and its Subsidiaries and (vii) provide assurance that any significant deficiencies or material weaknesses in the design or operation of internal controls which are reasonably likely to materially and adversely affect the ability to record, process, summarize and report financial information, and any fraud, whether or not material, that involves the Company’s management or other employees who have a role in the preparation of financial statements or the internal controls utilized by the Company and its Subsidiaries, are adequately and promptly disclosed to the Company’s independent auditors and the audit committee of the Company’s Board of Directors. The Company has disclosed, based on its most recent evaluations, to the Company’s outside auditors and the audit committee of the Company Board (A) all significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting (as defined in Rule 13a-15(f) under the Exchange Act) which are known to the Company and (B) any fraud, whether or not material, known to the Company that involves management or other employees who have a role in the preparation of financial statements or the Company’s internal control over financial reporting. The principal executive officer and principal financial officer of the Company have made all certifications required by the Sxxxxxxx-Xxxxx Act of 2002 and any related rules and regulations promulgated thereunder (the “Sxxxxxxx-Xxxxx Act”). The Company’s management has completed an assessment of the effectiveness of the Company’s internal control over financial reporting in compliance with the requirements of Section 404 of the Sxxxxxxx-Xxxxx Act for the year ended December 31, 2007, and such assessment concluded that such controls were effective.
(d) There are no outstanding loans or other extensions of credit made by the Company or any of its subsidiaries to any executive officer (as defined in Rule 3b-7 under the Exchange Act) or director of the Company. The Company has not, since the enactment of the Sxxxxxxx-Xxxxx Act, taken any action prohibited by Section 402 of the Sxxxxxxx-Xxxxx Act.
Appears in 1 contract
Samples: Merger Agreement (Spacedev, Inc.)
SEC Filings; Financial Statements; Information Provided. (a) All The Company has filed all registration statements, forms, certifications, reports and other documents required to be filed by the Company with the SEC since January 1, 2001 2010. All such registration statements, forms, certifications, reports and other documents (including those that the Company may file after the date hereof until the Closing) are referred to herein herein, together with all exhibits and schedules thereto and documents incorporated by reference therein, as the “Company SEC Reports.” Except as set forth in Section 3.4 of the Company Disclosure Schedule, the The Company SEC Reports (i) were or will be filed on a timely basis and basis, (ii) were at the time filed, complied, or will be prepared in compliance comply when filed as to form in all material respects with the applicable requirements of the Securities Act, Act and the Exchange Act, as the case may be, and the rules and regulations of the SEC thereunder applicable to such Company SEC Reports. None of , and (iii) did not or will not at the time they were or are filed or furnished (or with respect to Company SEC Reports when filed, after giving effect to any amendments and supplements thereto first filed or furnished on or prior to the date hereofof this Agreement, contained 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) contain any untrue statement of a material fact or omitted omit to state any a material fact required to be stated therein in such Company SEC Reports or necessary in order to make the statements thereinin such Company SEC Reports, in the light of the circumstances under which they were made, not misleading. None No Subsidiary of the Company’s Subsidiaries has filed, or Company is obligated to file, any forms, reports, schedules, statements or other documents with the SEC. As used in this Section 3.4(a), the term “filed” shall be broadly construed to include any manner in which a document or information is furnished, supplied or otherwise made available subject to the SECreporting requirements of Section 13(a) or Section 15(d) of the Exchange Act.
(b) Each of the consolidated financial statements (including, in each case, any related notes and schedules) contained or to be contained in the Company SEC Reports at the time filed (i) complied or will comply when filed as to form in all material respects with applicable requirements (including accounting requirements requirements) and the published rules and regulations of the SEC with respect thereto, (ii) were or will when filed be prepared in accordance with United States generally accepted accounting principles (“GAAP”) applied on a consistent basis throughout the periods involved (except as may be indicated in the notes to such financial statements or, in the case of unaudited interim financial statements, as permitted by the SEC on Form 10-Q under the Exchange Act or for normal year-end adjustments) Act), and (iii) fairly presented or will fairly present when filed in all material respects the consolidated financial position of the Company and its Subsidiaries as of the dates thereof indicated and the consolidated results of its their operations and cash flows for the periods indicated, except that the unaudited interim financial statements were or are subject to normal and recurring year-end adjustments as permitted by the SEC on Form 10-Q under the Exchange Act that will not be material in amount or effect. The Company’s auditors have not been withdrawn any audit opinion with respect to any financial statements contained in the Company SEC Reports, and are the Company has not expected determined to be material or announced any intention to restate any financial statements contained in the CompanyCompany SEC Reports. The unaudited consolidated, audited balance sheet of the Company as of June 30December 31, 2004 2011 is referred to herein as the “Company Balance Sheet.”
(c) The Company maintains, and at all times since January 1, 2010, has maintained, a system of disclosure controls and procedures that satisfy the requirements of Rule 13a-15 or 15d-15 under the Exchange Act and has established and maintains disclosure controls over financial reporting that satisfy the requirements of Rule 13a-15 under the Exchange Act. Such disclosure controls and procedures are effective to ensure that all material information concerning the Company is made known on a timely basis to be supplied the individuals responsible for the preparation of the Company’s filings with the SEC and other public disclosure documents and are designed to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with GAAP, and include 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 its 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 its Subsidiaries; and (iii) provide reasonable assurance regarding prevention or timely detection of unauthorized acquisition, use or disposition of the assets of the Company and its Subsidiaries that could have a material effect on the Company’s financial statements. The Company’s management has completed an assessment of the effectiveness of the Company’s system of internal controls over financial reporting in compliance with the requirements of Section 404 of the Xxxxxxxx-Xxxxx Act of 2002 (the “Xxxxxxxx-Xxxxx Act”) for the fiscal year ended December 31, 2011, and, except as set forth in the Filed Company SEC Reports, such assessment concluded that such controls were effective and the Company’s independent registered accountant has issued (and not subsequently withdrawn or qualified) an attestation report concluding that the Company maintained effective internal control over financial reporting as of December 31, 2011. Since January 1, 2010, to the Company’s Knowledge, the Company’s independent registered accountant has not identified or been made aware of: (A) any significant deficiency or material weakness in the design or operation of internal control over financial reporting utilized by the Company for inclusion in or any of its Subsidiaries; (B) any illegal act or fraud, whether or not material, that involves the registration statement on Form S-4 pursuant to which Company’s management or other employees; or (C) any claim or allegation regarding any of the foregoing. Since January 1, 2010, the Company Series A Preferred and each of its officers and directors have been and are in compliance in all material respects with (1) the applicable provisions of the Xxxxxxxx-Xxxxx Act and (2) the applicable listing and other rules and regulations of The Nasdaq Stock issued Market.
(d) As of the date of this Agreement, there are no outstanding or unresolved comments in comment letters received from the Merger and SEC with respect to the Company Common Stock issuable upon conversion SEC Reports. To the Company’s Knowledge, none of the Company Series A Preferred Stock will be registered under SEC Reports is the Securities Act (including any amendments subject of ongoing SEC review and there are no inquiries or supplements, the “Registration Statement”), shall not at the time the Registration Statement is declared effective investigations by the SEC contain or any untrue statement internal investigations pending or threatened, in each case regarding any accounting practices of a material fact or omit to state any material fact required to be stated in the Registration Statement or necessary in order to make the statements in the Registration Statement not misleading. The information to be supplied by the Company for inclusion in the joint or any of its Subsidiaries.
(e) The proxy statement/prospectus statement (as amended or supplemented from time to time, the “Proxy Statement”) to be sent to the stockholders of the Company in connection with the meeting of the Company’s stockholders Company Meeting relating to consider the adoption of this Agreement and by the Merger (stockholders of the “Company Meeting”) and the Partners in connection with the Fund Consent Solicitation (as herein defined) shall not, on the date the Proxy Statement (including any amendment or supplement thereto) is first mailed to stockholders of the Company and the Partners, or at the time of the Company Meeting and at the Effective TimeMeeting, contain any statement which, at such the time and in the light of the circumstances under which it shall be is made, is false or misleading with respect to any material fact, or and shall not omit to state any material fact necessary in order to make the statements made in the Proxy Statement therein not false or misleading; misleading or omit to state any material fact necessary to correct any statement in any earlier communication with respect to the solicitation of proxies for the Company Meeting or the solicitation of consents in connection with the Fund Consent Solicitation which has become false or misleading. If The Proxy Statement will, at any the time prior it is first filed with the SEC and first mailed to the Effective Time any event relating to the Company, any Affiliate (as defined below) stockholders of the Company, or any officers or directors comply in all material respects with the requirements of any of themthe Exchange Act. Notwithstanding the foregoing, should be discovered by the Company which should be set forth in an amendment makes no representation or warranty with respect to statements made therein with respect to the Registration Statement Parent or a supplement to Merger Sub based on information supplied in writing by or on behalf of the Parent or Merger Sub specifically for inclusion in the Proxy Statement, the Company shall promptly inform the Fund. As used in this Agreement, the term.
Appears in 1 contract
SEC Filings; Financial Statements; Information Provided. (a) All The Company has filed or furnished, as applicable, all registration statements, forms, reports and other documents (including exhibits and other information incorporated therein) required to be filed or furnished by the Company with the SEC since January 1, 2001 2019. All such registration statements, forms, reports and other documents (including exhibits and all other information incorporated therein and those registration statements, forms, reports and other documents that the Company may file or furnish after the date hereof until the Closing) are referred to herein as the “Company SEC Reports.” Except as set forth in Section 3.4 of the Company Disclosure Schedule, the The Company SEC Reports (i) were or will be filed or furnished on a timely basis and basis, (ii) were at the time filed or furnished, complied, or will be prepared in compliance comply when filed or furnished, as to form in all material respects with the applicable requirements of the Securities Act, and the Exchange Act, the Xxxxxxxx-Xxxxx Act and the Xxxx-Xxxxx Act of 2010, as amended, as the case may be, and applicable to such Company SEC Reports. None of Reports and (iii) except to the extent that information contained in a Company SEC Reports when filedReport has been revised, after giving effect to any amendments and supplements thereto amended, modified or superseded by a later filed prior to or furnished Company SEC Report, did not or will not at the date hereof, contained time they were or are filed or furnished contain any untrue statement of a material fact or omitted omit to state any a material fact required to be stated therein in such Company SEC Reports or necessary in order to make the statements thereinin such Company SEC Reports, in the light of the circumstances under which they were made, not misleading. None of the Company’s Subsidiaries has filed, or is obligated to file, misleading in any forms, reports, schedules, statements or other documents with the SEC. As used in this Section 3.4(a), the term “filed” shall be broadly construed to include any manner in which a document or information is furnished, supplied or otherwise made available to the SECmaterial respect.
(b) Each of the consolidated financial statements (including, in each case, any related notes and schedules) contained or to be contained (including by incorporation by reference) in the Company SEC Reports at the time filed (i) complied or will comply as to form in all material respects with applicable accounting requirements and the published rules and regulations of the SEC with respect thereto, (ii) were or will be prepared in accordance with generally accepted accounting principles (“GAAP”) GAAP applied on a consistent basis throughout the periods involved (except as may be indicated in the notes to such financial statements or, in the case of unaudited interim financial statements, as permitted by the SEC on Form 10-Q under the Exchange Act or for normal year-end adjustments) Act), and (iii) fairly presented or will fairly present in all material respects the consolidated financial position of the Company and its Subsidiaries as of the dates thereof indicated and the consolidated results of its operations and cash flows for the periods indicated, all in accordance with GAAP, except that the unaudited interim financial statements were or are subject to normal and recurring year-end adjustments that have not been and (none of which are not reasonably expected to be material to the Company. The unaudited balance sheet of the Company as of June 30, 2004 is referred to herein as the “Company Balance Sheetmaterial).”
(c) The information to be supplied by or on behalf of the Company in writing for inclusion in the registration statement Schedule TO or the Offer Documents, on Form S-4 pursuant the date the Schedule TO is filed with the SEC and on the date the Offer Documents are first published, sent or given to which the Company Series A Preferred Stock issued in the Merger and the holders of shares of Company Common Stock issuable upon conversion of the Company Series A Preferred Stock will be registered under the Securities Act (including any amendments or supplements, the “Registration Statement”)Stock, shall not at the time the Registration Statement is declared effective by the SEC contain any untrue statement of a material fact or omit to state any material fact required to be stated in the Registration Statement therein or necessary in order to make the statements therein, in light of the Registration Statement circumstances in which they shall be made, not misleadingmisleading in any material respect.
(d) The Company is in compliance in all material respects with the applicable provisions of the Xxxxxxxx-Xxxxx Act. The information Each required form, report and document containing financial statements that has been filed with or submitted to the SEC was accompanied by any certifications required to be supplied filed or submitted by the Company for inclusion in the joint proxy statement/prospectus (the “Proxy Statement”) to be sent to the stockholders of the Company in connection with the meeting of the Company’s stockholders principal executive officer and principal financial officer pursuant to consider the adoption of this Agreement and the Merger (the “Company Meeting”) and the Partners in connection with the Fund Consent Solicitation (as herein defined) shall not, on the date the Proxy Statement is first mailed to stockholders of the Company and the PartnersXxxxxxxx-Xxxxx Act and, at the time of filing or submission of each such certification, any such certification complied in all material respects with the applicable provisions of the Xxxxxxxx-Xxxxx Act.
(e) The Company maintains disclosure controls and procedures required by Rule 13a-15 or 15d-15 under the Exchange Act. Such disclosure controls and procedures are designed to provide reasonable assurance that all information concerning the Company Meeting and at that could have a material effect on the Effective Time, contain any statement which, at such time and in light of the circumstances under which it shall be made, financial statements is false or misleading with respect to any material fact, or omit to state any material fact necessary in order to make the statements made in the Proxy Statement not false or misleading; or omit to state any material fact necessary to correct any statement in any earlier communication with respect known on a timely basis to the solicitation of proxies individuals responsible for the Company Meeting or the solicitation of consents in connection with the Fund Consent Solicitation which has become false or misleading. If at any time prior to the Effective Time any event relating to the Company, any Affiliate (as defined below) preparation of the Company, or any officers or directors ’s filings with the SEC and other public disclosure documents. The Company is in compliance in all material respects with the applicable listing and other rules and regulations of any of them, should be discovered by the Company which should be set forth in an amendment to the Registration Statement or a supplement to the Proxy Statement, the Company shall promptly inform the Fund. As used in this Agreement, the termNasdaq.
Appears in 1 contract
Samples: Merger Agreement (Epizyme, Inc.)
SEC Filings; Financial Statements; Information Provided. (a) All The Company has filed all registration statements, forms, reports and other documents required to be filed by the Company with the SEC since January 1, 2001 2003. All such registration statements, forms, reports and other documents (including those that the Company may file after the date hereof until the Closing) are referred to herein as the “Company SEC Reports.” Except as set forth in Section 3.4 of the Company Disclosure Schedule, the The Company SEC Reports (i) were or will be filed on a timely basis and basis, (ii) were at the time filed, complied, or will be prepared in compliance comply when filed, as to form in all material respects with the applicable requirements of the Securities Act, the Exchange Act and the Exchange Sxxxxxxx-Xxxxx Act of 2002 (the “Sxxxxxxx-Xxxxx Act”), as the case may be, and the rules and regulations of the SEC thereunder applicable to such Company SEC Reports. None of , and (iii) did not or will not at the Company SEC Reports when filed, after giving effect to any amendments and supplements thereto time they were or are filed prior to the date hereof, contained contain any untrue statement of a material fact or omitted omit to state any a material fact required to be stated therein in such Company SEC Reports or necessary in order to make the statements thereinin such Company SEC Reports, in the light of the circumstances under which they were made, not misleading. None of the Company’s Subsidiaries has filed, or is obligated to file, any forms, reports, schedules, statements or other documents with the SEC. As used in this Section 3.4(a), the term “filed” shall be broadly construed to include any manner in which a document or information is furnished, supplied or otherwise made available to the SEC.
(b) Each of the consolidated financial statements (including, in each case, any related notes and schedules) contained or to be contained in the Company SEC Reports (“Company Financial Statements”) at the time filed (i) complied or will comply as to form in all material respects with applicable accounting requirements and the published rules and regulations of the SEC with respect thereto, (ii) were was or will be prepared in accordance with United States generally accepted accounting principles (“GAAP”) applied on a consistent basis throughout the periods involved (except as may be indicated in the notes to such financial statements or, in the case of unaudited interim financial statements, as permitted by the SEC on Form 10-Q under the Exchange Act or for normal year-end adjustments) Act), and (iii) fairly presented or will fairly present in all material respects the consolidated financial position of the Company and its Subsidiaries as of the dates thereof indicated and the consolidated results of its their operations and cash flows for the periods indicated, except that the unaudited interim financial statements were or are subject to normal and recurring year-end adjustments that have not been and are not expected to be material to the Companyadjustments. The consolidated unaudited balance sheet of the Company as of June 30March 31, 2004 2006 is referred to herein as the “Company Balance Sheet.”
(c) The information to be supplied by or on behalf of the Company for inclusion in the registration proxy statement on Form S-4 pursuant to which the Company Series A Preferred Stock issued in the Merger and the Company Common Stock issuable upon conversion of the Company Series A Preferred Stock will be registered under the Securities Act (including any amendments or supplements, the “Registration Statement”), shall not at the time the Registration Statement is declared effective by the SEC contain any untrue statement of a material fact or omit to state any material fact required to be stated in the Registration Statement or necessary in order to make the statements in the Registration Statement not misleading. The information to be supplied by the Company for inclusion in the joint proxy statement/prospectus (the “Proxy Statement”) to be sent to the stockholders of the Company (the “Proxy Statement”) in connection with the meeting of the Company’s stockholders to consider the adoption of this Agreement and the Merger (the “Company Meeting”) and the Partners in connection with the Fund Consent Solicitation (as herein defined) Meeting shall not, on the date the Proxy Statement is first mailed to stockholders of the Company and the PartnersCompany, at the time of the Company Meeting and or at the Effective Time, contain any statement which, at such time and in light of the circumstances under which it shall be made, is false or misleading with respect to any material fact, or omit to state any material fact necessary in order to make the statements made in the Proxy Statement not false or misleadingmisleading in light of the circumstances under which they were or shall be made; or omit to state any material fact necessary to correct any statement in any earlier communication with respect to the solicitation of proxies for the Company Meeting or the solicitation of consents in connection with the Fund Consent Solicitation which has become false or misleading. If at any time prior to the Effective Time Company Meeting any fact or event relating to the Company, any Affiliate (as defined below) of the Company, Company or any officers or directors of any of them, its Affiliates which should be set forth in a supplement to the Proxy Statement should be discovered by the Company which or should be set forth in an amendment to the Registration Statement or a supplement to the Proxy Statementoccur, the Company shall shall, promptly after becoming aware thereof, inform the FundBuyer of such fact or event.
(d) The Company is in compliance in all material respects with the applicable provisions of the Sxxxxxxx-Xxxxx Act. As used Each required form, report and document containing financial statements that has been filed with or submitted to the SEC since July 21, 2003 was accompanied by the certifications required to be filed or submitted by the Company’s chief executive officer and chief financial officer pursuant to the 10 Sxxxxxxx-Xxxxx Act and, at the time of filing or submission of each such certification, such certification complied in this Agreementall material respects with the applicable provisions of the Sxxxxxxx-Xxxxx Act and the rules and regulations promulgated thereunder.
(e) The Company maintains disclosure controls and procedures required by Rule 13a-15 or 15d-15 under the Exchange Act. Such disclosure controls and procedures are effective to ensure that all material information concerning the Company is made known on a timely basis to the individuals responsible for the preparation of the Company’s filings with the SEC and other public disclosure documents. The Company is in compliance in all material respects with the applicable listing and other rules and regulations of The Nasdaq National Market.
(f) The Company has not had any material dispute with its independent public auditors regarding accounting matters or policies during any of its past three full fiscal years or during the current fiscal year. Since January 1, 2003, neither the termCompany nor any Subsidiaries nor, to the Company’s Knowledge, any director, officer, employee, auditor, accountant or representative of the Company or any Subsidiary has received any material, unresolved complaint, allegation, assertion or claim regarding accounting or auditing practices, procedures, methodologies or methods of the Company or any Subsidiary or their respective internal accounting controls or any material inaccuracy in the Company’s financial statements. No attorney representing the Company or any of its Subsidiaries, whether or not employed by the Company or any Subsidiary, has reported to the Company Board or any committee thereof or, to the Company’s Knowledge, to any director or officer of the Company evidence of a material violation of securities laws, breach of fiduciary duty or similar violation by the Company or any of its officers, directors, employees or agents.
Appears in 1 contract
SEC Filings; Financial Statements; Information Provided. (a) The Company has provided to the Buyer true and complete copies of all Company SEC Reports filed with the SEC prior to the date hereof. All registration statements, forms, reports and other documents required to be filed by the Company with the SEC since January 1, 2001 (including those that the Company may file after the date hereof until the Closing) filed with the SEC are referred to herein as the “"Company SEC Reports.” " Except as set forth in Section 3.4 3.4(a) of the Company Disclosure Schedule, the Company SEC Reports (i) were or will be filed on a timely basis and basis, (ii) at the time filed, were or will be prepared in compliance in all material respects with the applicable requirements of the Securities Act of 1933, as amended (the "Securities Act"), and the Exchange Act, as the case may be, applicable and, if applicable, the Sarbanes-Oxley Act of 2002 (the "Sarbanes-Oxley Act"), and the rules xxx xxxxxxxxxns of the SEC therexxxxx xxxxxxxxle to such Company SEC Reports. None of , and (iii) did not or will not at the Company SEC Reports when filed, after giving effect to any amendments and supplements thereto time they were or are filed prior to the date hereof, contained contain any untrue statement of a material fact or omitted omit to state any a material fact required to be stated therein in such Company SEC Reports or necessary in order to make the statements thereinin such Company SEC Reports, in light of the circumstances under which they were made, not misleading. None No Subsidiary of the Company’s Subsidiaries Company is subject to the reporting requirements of Section 13(a) or Section 15(d) of the Exchange Act. Since March 7, 2000, the Company has filedfiled with the SEC all registration statements, or is obligated to file, any forms, reports, schedules, statements or reports and other documents with required to be filed under the SEC. As used in this Section 3.4(a)Securities Act, the term “filed” shall Exchange Act, the Sarbanes-Oxley Act and the rules and regulations of the SEC thereundxx (xxxxxxxxx those that are required to be broadly construed to include any manner in which a document or information is furnished, supplied or otherwise made available to filed after the SECdate hereof until the Closing).
(b) Each Except as set forth in Section 3.4(b) of the Company Disclosure Schedule, each of the consolidated financial statements (including, in each case, any related notes and schedules) contained or to be contained in the Company SEC Reports at the time filed (i) complied or will comply as to form in all material respects with applicable accounting requirements and the published rules and regulations of the SEC with respect thereto, including the Sarbanes-Oxley Act, (ii) were or will be prepared in accordance with Xxxxxx Xxxxxx generally accepted accounting principles (“"GAAP”") applied on a consistent basis throughout the periods involved (except as may be indicated in the notes to such financial statements or, in the case of unaudited interim financial statements, as permitted by the SEC on Form 10-Q under the Exchange Act or for normal year-end adjustmentsAct) and (iii) fairly presented or will fairly present the consolidated financial position of the Company and its Subsidiaries as of the dates thereof indicated and the consolidated results of its operations and cash flows for the periods indicated, consistent with the books and records of the Company and its Subsidiaries, except that the unaudited interim financial statements were or are subject to normal and recurring year-end adjustments that have which were not been and or are not expected to be material to the Companyin amount. The unaudited consolidated, audited balance sheet of the Company as of June 30December 31, 2004 2003 is referred to herein as the “"Company Balance Sheet.”"
(c) The information to be supplied by the Company for inclusion Included in the registration statement on Form S-4 pursuant to which the Company Series A Preferred Stock issued in the Merger and the Company Common Stock issuable upon conversion Section 3.4(c) of the Company Series A Preferred Stock will be registered under Disclosure Schedule are the Securities Act (including any amendments or supplementsaudited consolidated balance sheet, the “Registration Statement”)statements of operations, shall not at the time the Registration Statement is declared effective by the SEC contain any untrue statement of a material fact or omit to state any material fact required to be stated in the Registration Statement or necessary in order to make the statements in the Registration Statement not misleading. The information to be supplied by the Company for inclusion in the joint proxy statement/prospectus (the “Proxy Statement”) to be sent to the stockholders of the Company in connection with the meeting of the Company’s stockholders to consider the adoption of this Agreement stockholders' equity and the Merger (the “Company Meeting”) and the Partners in connection with the Fund Consent Solicitation (as herein defined) shall not, on the date the Proxy Statement is first mailed to stockholders cash flows of the Company and its Subsidiaries as of December 31, 2003 and for the Partnersyear then ended (the "Audited Financial Statements"). The Audited Financial Statements (i) comply in all material respects with applicable accounting requirements and the published rules and regulations of the SEC with respect thereto, at including the time Sarbanes-Oxley Act, (ii) were prepared in accordance with GAAP applixx xx x xxxxxxtent basis throughout the periods involved (except as may be indicated in the notes to such financial statements) and (iii) fairly present the consolidated financial position of the Company Meeting and at the Effective Time, contain any statement which, at such time and in light its Subsidiaries as of the circumstances under which it shall be made, is false or misleading with respect to any material fact, or omit to state any material fact necessary in order to make dates indicated and the statements made in the Proxy Statement not false or misleading; or omit to state any material fact necessary to correct any statement in any earlier communication with respect to the solicitation consolidated results of proxies its operations and cash flows for the Company Meeting or the solicitation of consents in connection periods indicated, consistent with the Fund Consent Solicitation which has become false or misleading. If at any time prior to the Effective Time any event relating to the Company, any Affiliate (as defined below) books and records of the Company, or any officers or directors of any of them, should be discovered by the Company which should be set forth in an amendment to the Registration Statement or a supplement to the Proxy Statement, the Company shall promptly inform the Fund. As used in this Agreement, the termand its Subsidiaries.
Appears in 1 contract
Samples: Merger Agreement (Switchboard Inc)
SEC Filings; Financial Statements; Information Provided. (a) All Public Company has filed all registration statements, forms, reports reports, certifications and other documents required to be filed by Public Company with the SEC and under applicable Canadian securities laws for a period of at least twelve calendar months immediately preceding the execution of this Agreement. All registration statements, forms, reports and other documents, as amended prior to the date hereof, which have been filed by Public Company with the SEC since January 1, 2001 (including 2019, and those that the Public Company may file after the date hereof until the Closing) Closing with the SEC, are referred to herein as the “"Public Company SEC Reports.” Except as set forth in Section 3.4 " All of the Company Disclosure Schedule, the Public Company SEC Reports (iA) were or will be filed on a timely basis and basis, (iiB) were at the time filed (or if amended prior to the date hereof, when so amended), complied, or will be prepared in compliance comply when filed, as to form in all material respects with the applicable requirements of the Securities Act, Act and the Exchange Act, as the case may be, Act applicable to such Company SEC Reports. None of the Public Company SEC Reports when filed, after giving effect to any amendments and supplements thereto (C) did not or will not at the time they were filed (or if amended prior to the date hereof, contained when so amended) or are filed contain any untrue statement of a material fact or omitted omit to state any a material fact required to be stated therein in such Public Company SEC Reports or necessary in order to make the statements thereinin such Public Company SEC Reports, in the light of the circumstances under which they were made, not misleading. None of the Company’s Subsidiaries has filed, or is obligated to file, in any forms, reports, schedules, statements or other documents with the SEC. As used in this Section 3.4(a), the term “filed” shall be broadly construed to include any manner in which a document or information is furnished, supplied or otherwise made available to the SECmaterial respect.
(b) Each of the consolidated financial statements (including, in each case, any related notes and schedules) contained or to be contained in the Public Company SEC Reports at the time filed (or if amended prior to the date hereof, when so amended) (i) complied or will comply as to form in all material respects with applicable accounting requirements and the published rules and regulations of the SEC with respect thereto, (ii) were or will be prepared in accordance with generally accepted accounting principles (“GAAP”) GAAP applied on a consistent basis throughout the periods involved and at the dates involved (except as may be indicated in the notes to such financial statements or, in the case of unaudited interim financial statements, as permitted by the SEC on Form 10-Q under the Exchange Act or for normal year-end adjustmentsAct) and (iii) fairly presented or will fairly present in all material respects the consolidated financial position of the Public Company and its Subsidiaries as of the dates thereof indicated and the consolidated results of its operations and cash flows for the periods indicated, except that the unaudited interim financial statements were or are subject to normal and recurring year-end adjustments that have not been and are not expected to be material to the Companyadjustments. The unaudited consolidated balance sheet of the Public Company as of June 30March 31, 2004 2021 is referred to herein as the “"Public Company Balance Sheet.”"
(c) Xxxxx LLP, Public Company's current auditors, is and has been at all times since its engagement by Public Company (i) "independent" with respect to Public Company within the meaning of Regulation S-X and (ii) in compliance with subsections (g) through (l) of Section 10A of the Exchange Act (to the extent applicable) and the related rules of the SEC and the Public Company Accounting Oversight Board.
(d) The information in the Registration Statement to be supplied by or on behalf of Public Company for inclusion or incorporation by reference in the Registration Statement or to be included or supplied by or on behalf of Public Company for inclusion in the registration statement on Form S-4 pursuant to which the Company Series any Regulation M-A Preferred Stock issued in the Merger and the Company Common Stock issuable upon conversion of the Company Series A Preferred Stock will be registered under the Securities Act (including any amendments or supplements, the “Registration Statement”)Filing, shall not at the time the Registration Statement or any such Regulation M-A filing is filed with the SEC, at any time it is amended or supplemented or at the time the Registration Statement is declared effective by the SEC SEC, as applicable, contain any untrue statement of a material fact or omit to state any material fact required to be stated in the Registration Statement therein or necessary in order to make the statements in the Registration Statement therein not misleading. The information to be supplied by the or on behalf of Public Company for inclusion in the joint proxy statement/prospectus (the “Proxy Statement”) /Prospectus to be sent to the stockholders Shareholders of the Public Company and Merger Partner in connection with the meeting of the Company’s stockholders to consider the adoption of this Agreement and the Merger (the “Public Company Meeting”) and , which information shall be deemed to include all information about or relating to Public Company, the Partners in connection with Public Company Voting Proposals or the Fund Consent Solicitation (as herein defined) Public Company Meeting, shall not, on the date the Proxy Statement Statement/Prospectus is first mailed to stockholders Shareholders of the Public Company and the Partnersor Merger Partner, or at the time of the Public Company Meeting and or at the Effective Time, contain any statement whichthat, at such time and in light of the circumstances under which it shall be made, is false or misleading with respect to any material fact, or omit to state any material fact necessary in order to make the statements made in the Proxy Statement Statement/Prospectus not false or misleading; or omit to state any material fact necessary to correct any statement in any earlier communication with respect to the solicitation of proxies for the Public Company Meeting or the solicitation of consents in connection with the Fund Consent Solicitation which that has become false or misleading. If at any time prior to the Effective Time any event relating to the Company, any Affiliate (as defined below) of the Company, or any officers or directors of any of them, should be discovered by the Company which should be set forth in an amendment to the Registration Statement or a supplement to the Proxy Statement, the Company shall promptly inform the Fund. As used in this Agreement, the term.
Appears in 1 contract
Samples: Merger Agreement (Sphere 3D Corp)
SEC Filings; Financial Statements; Information Provided. (a) All The Company has filed all registration statements, forms, reports and other documents required to be filed by the Company with the SEC since January 1, 2001 1998, and has made available to the Buyer copies of all registration statements, forms, reports and other documents filed by the Company with the SEC since such date. All such registration statements, forms, reports and other documents (including those that the Company may file after the date hereof until the Closing) are referred to herein as the “"Company SEC Reports.” Except as set forth in Section 3.4 of the Company Disclosure Schedule, the " The Company SEC Reports (i) were or will be filed on a timely basis and basis, (ii) at the time filed, were or will be prepared in compliance in all material respects with the applicable requirements of the Securities Act, Act and the Exchange Act, as the case may be, and the rules and regulations of the SEC thereunder applicable to such Company SEC Reports. None of , and (iii) did not or will not at the Company SEC Reports when filed, after giving effect to any amendments and supplements thereto time they were or are filed prior to the date hereof, contained contain any untrue statement of a material fact or omitted omit to state any a material fact required to be stated therein in such Company SEC Reports or necessary in order to make the statements thereinin such Company SEC Reports, in the light of the circumstances under which they were made, not misleading. None No Subsidiary of the Company’s Subsidiaries has filed, or Company is obligated to file, any forms, reports, schedules, statements or other documents with the SEC. As used in this Section 3.4(a), the term “filed” shall be broadly construed to include any manner in which a document or information is furnished, supplied or otherwise made available subject to the SECreporting requirements of Section 13 or Section 15(d) of the Exchange Act.
(b) Each of the consolidated financial statements (including, in each case, any related notes and schedules) contained or to be contained in the Company SEC Reports at the time filed (i) complied or will comply as to form in all material respects with applicable accounting requirements and the published rules and regulations of the SEC with respect thereto, (ii) were or will be prepared in accordance with United States generally accepted accounting principles (“"GAAP”") applied on a consistent basis throughout the periods involved (except as may be indicated in the notes to such financial statements or, in the case of unaudited statements, as permitted by the SEC on Form 10-Q under the Exchange Act or for normal year-end adjustmentsAct) and (iii) fairly presented or will fairly present in accordance with GAAP the consolidated financial position of the Company and its Subsidiaries as of the dates thereof and the consolidated results of its operations and cash flows for the periods indicated, consistent with the books and records of the Company and its Subsidiaries, except that the unaudited interim financial statements were or are subject to normal and recurring year-end adjustments that have which were not been and are or will not expected to be material to the Companyin amount. The consolidated, unaudited balance sheet of the Company as of June 30, 2004 2001 is referred to herein as the “"Company Balance Sheet.”"
(c) The information to be supplied by or on behalf of the Company for inclusion or incorporation by reference in the registration statement on Form S-4 S- 4 to be filed by the Buyer pursuant to which the Company Series A Preferred shares of Buyer Common Stock issued in connection with the Merger and the Company Common Stock issuable upon conversion of the Company Series A Preferred Stock will shall be registered under the Securities Act (including any amendments or supplements, the “"Registration Statement”"), or for inclusion in any filing pursuant to Rule 165 or Rule 425 under the Securities Act or Rule 14a-12 under the Exchange Act (each, a "Regulation M-A Filing"), shall not at the time the Registration Statement or any Regulation M-A Filing is filed with the SEC, at any time it is amended or supplemented, or at the time the Registration Statement is declared effective by the SEC contain any untrue statement of a material fact or omit to state any material fact required to be stated in the Registration Statement therein or necessary in order to make the statements in the Registration Statement therein not misleading. The information to be supplied by the Company for inclusion in the joint proxy statement/prospectus (the “"Proxy Statement”/Prospectus") to be sent to the stockholders shareholders of the Company in connection with the meeting of the Company’s stockholders 's shareholders to consider the approval and adoption of this Agreement and the Plan of Merger (the “"Company Shareholders Meeting”) and the Partners in connection with the Fund Consent Solicitation (as herein defined") shall not, on the date the Proxy Statement Statement/Prospectus is first mailed to stockholders shareholders of the Company and the PartnersCompany, or at the time of the Company Shareholders Meeting and or at the Effective Time, contain any statement which, at such time and in light of the circumstances under which it shall be made, is false or misleading with respect to any material fact, or omit to state any material fact necessary in order to make the statements made in the Proxy Statement Statement/Prospectus not false or misleading; or omit to state any material fact necessary to correct any statement in any earlier communication with respect to the solicitation of proxies for the Company Shareholders Meeting or the solicitation of consents in connection with the Fund Consent Solicitation which has become false or misleading. If at any time prior to the Effective Time any event relating to the Company, any Affiliate (as defined below) of the Company, Company or any of its Affiliates, officers or directors of any of them, should be discovered by the Company which should be set forth in an amendment to the Registration Statement or a supplement to the Proxy Statement/Prospectus, the Company shall promptly inform the Fund. As used in this Agreement, the termBuyer.
Appears in 1 contract
Samples: Merger Agreement (Keane Inc)
