Financial Statements; Internal Controls. (a) The Company has previously provided to Acquiror true and complete copies of the audited consolidated statement of financial position and consolidated statements of comprehensive income, changes in equity and cash flows of the Company and its Subsidiaries as of and for the years ended December 31, 2023 and December 31, 2022, together with the auditor’s reports thereon, which comply in all material respects with the applicable accounting requirements (including the standards of the PCAOB) and with the rules and regulations of the SEC, the Exchange Act and the Securities Act applicable to a registrant (the “Audited Financial Statements” and the Audited Financial Statements together with the H1 Financial Statements to be delivered pursuant to this Agreement, the “Financial Statements”). (b) Except as set forth on Section 4.8(b) of the Company Disclosure Letter, the Financial Statements (i) fairly present in all material respects the consolidated financial position of the Company and its consolidated Subsidiaries, as at the respective dates thereof, and the consolidated results of their operations, their consolidated incomes, their consolidated changes in equity and their consolidated cash flows for the respective periods then ended (except as may be indicated in the notes thereto and subject, in the case of the H1 Financial Statements, to normal year-end adjustment and the absence of footnotes), (ii) were prepared in conformity with IFRS applied on a consistent basis during the periods involved (subject, in the case of the H1 Financial Statements, to normal year-end adjustment and the absence of footnotes), (iii) were prepared from, and are in accordance in all material respects with, the books and records of the Company and its consolidated Subsidiaries, (iv) in the case of the Audited Financial Statements, were prepared in compliance in all material respects with the applicable accounting requirements (including the standards of the PCAOB) and with the rules and regulations of the SEC, the Exchange Act and the Securities Act applicable to a registrant, in effect as of the respective dates thereof, and (v) in the case of the H1 Financial Statements, when delivered by the Company for inclusion in the Proxy/Registration Statement for filing with the SEC following the date of this Agreement in accordance with Section 7.3, will comply in all material respects with the applicable accounting requirements (including the standards of the PCAOB) and with the rules and regulations of the SEC, the Exchange Act and the Securities Act applicable to a registrant, in effect as of the respective dates thereof. (c) The Pro Forma Financial Statements will, when provided, present fairly in all material respects the information shown therein, comply in all material respects with the applicable accounting requirements (including the standards of the PCAOB) and with the rules and regulations of the SEC, the Exchange Act and the Securities Act applicable thereto, in effect as of the respective dates thereof, and will have been compiled on a basis consistent with that of the Audited Financial Statements. The assumptions, information and data used in the preparation of such Pro Forma Financial Statements are reasonably believed by the Company to be reasonable in light of current conditions and facts known to the Company, the pro forma adjustments used therein will be appropriate to give effect to the transactions or circumstances described therein, and the pro forma adjustments will have been properly applied to the historical amounts used in the preparation of such Pro Forma Financial Statements. (d) Neither the Company nor any director or officer of the Company or any of its Subsidiaries nor, to the knowledge of the Company, any independent auditor of the Company or its Subsidiaries, has identified or been made aware of (i) any significant deficiency or material weakness in the system of internal accounting controls utilized by the Company or any of its Subsidiaries, (ii) 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 or any of its Subsidiaries or (iii) any claim or allegation regarding any of the foregoing. (e) The Company maintains a system of internal accounting controls which the Company reasonably believes is 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 IFRS 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. The books and records of the Company have been, and are being, maintained in all material respects in accordance with IFRS and any other applicable legal and accounting requirements. (f) Except as set forth on Section 4.8(f) of the Company Disclosure Letter, there are no outstanding loans or other extensions of credit made by the Company or its Subsidiaries to any of their respective executive officers (as defined in Rule 3b-7 under the Exchange Act) or any director of the Company or its Subsidiaries.
Appears in 1 contract
Sources: Business Combination Agreement (Bukit Jalil Global Acquisition 1 Ltd.)
Financial Statements; Internal Controls. (a) The Company has previously provided delivered to Acquiror true the Lenders complete and complete correct copies of of: (i) the Company’s Annual Report on Form 10-K for the year ended December 31, 2019 (the “Company Form 10-K”), which contains the audited consolidated statement of financial position and consolidated statements of comprehensive income, changes in equity and cash flows balance sheet of the Company and its consolidated Subsidiaries as of and for the years ended December 31, 2023 2019, and December 31the related consolidated statements of income and shareholders’ equity and statements of cash flows for the fiscal year then ended, 2022, together with the auditor’s reports thereon, which comply in all material respects with the applicable accounting requirements (including the standards of footnotes thereto, certified by independent certified public accountants; and (ii) the PCAOB) and with Company’s Quarterly Report on Form 10-Q for the rules and regulations of the SECquarterly period ended June 30, the Exchange Act and the Securities Act applicable to a registrant 2020 (the “Audited Financial Statements” Company Form 10-Q”), which contains the unaudited consolidated balance sheet of the Company and its consolidated Subsidiaries as of June 30, 2020, and the Audited Financial Statements together with related unaudited consolidated statements of income and stockholders’ equity and statements of cash flows for the H1 Financial Statements to be delivered pursuant to this Agreement, three month period then ended (the financial statements in clauses (i) and (ii) collectively the “Financial Statements”).
(b) Except as set forth on Section 4.8(b) Each of the Company Disclosure Letter, consolidated balance sheets contained in the Financial Statements (i) fairly present presents in all material respects the consolidated financial position of the Company and its consolidated Subsidiaries, Subsidiaries as at of its date and each of the respective dates thereof, consolidated statements of income and shareholders’ equity and statements of cash flows included in the Financial Statements fairly presents in all material respects the consolidated results of their operations, their stockholders’ equity or cash flows, as the case may be, of the Company and its consolidated incomes, their consolidated changes in equity and their consolidated cash flows Subsidiaries for the respective periods then ended to which they relate (except as may be indicated in the notes thereto and subject, in the case of the H1 Financial Statementsany unaudited interim financial statements, to normal year-end adjustment adjustments and the absence of footnotesfootnote disclosures), (ii) were prepared in conformity each case in accordance with IFRS GAAP applied on a consistent basis during the periods involved involved, except as noted therein.
(subject, c) Since the date of the latest financial statements included in the case Company Form 10-Q and except as disclosed therein, neither the Company nor any of its Subsidiaries has (i) sustained any loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor disturbance or dispute or action or Order from any applicable Governmental Authority, (ii) issued or granted any securities (other than pursuant to (x) employee benefit plans, stock option or stock incentive plans, other employee compensation plans or non-employee director compensation programs in existence on the H1 Financial Statementsdate hereof and described in the Company Form 10-K or Company Form 10-Q or (y) options, to normal year-end adjustment and warrants or rights outstanding on the absence of footnotesdate hereof or the date on which the Rights Offering is fully subscribed), (iii) incurred any liability or obligation, direct or contingent, other than liabilities and obligations that were prepared from, and are incurred in accordance in all material respects with, the books and records ordinary course of the Company and its consolidated Subsidiariesbusiness, (iv) entered into any transaction not in the case ordinary course of business (other than as contemplated hereunder or as described in the Audited Financial StatementsCompany Form 10-K or Company Form 10-Q (without giving effect to any supplements or amendments thereto after the execution and delivery of this Agreement)), were prepared in compliance in all material respects with the applicable accounting requirements (including the standards of the PCAOB) and with the rules and regulations of the SEC, the Exchange Act and the Securities Act applicable to a registrant, in effect as of the respective dates thereof, and or (v) declared or paid any dividend on its Capital Stock, and, since such date, there has not been any change in the case terms of the H1 Financial Statements, when delivered by the Company for inclusion in the Proxy/Registration Statement for filing with the SEC following the date of this Agreement in accordance with Section 7.3, will comply in all material respects with the applicable accounting requirements (including the standards of the PCAOB) and with the rules and regulations of the SEC, the Exchange Act and the Securities Act applicable to a registrant, in effect as of the respective dates thereof.
(c) The Pro Forma Financial Statements will, when provided, present fairly in all material respects the information shown therein, comply in all material respects with the applicable accounting requirements (including the standards of the PCAOB) and with the rules and regulations of the SEC, the Exchange Act and the Securities Act applicable thereto, in effect as of the respective dates thereof, and will have been compiled on a basis consistent with that of the Audited Financial Statements. The assumptions, information and data used in the preparation of such Pro Forma Financial Statements are reasonably believed by the Company to be reasonable in light of current conditions and facts known to the Company, the pro forma adjustments used therein will be appropriate to give effect to the transactions Equity Interests or circumstances described therein, and the pro forma adjustments will have been properly applied to the historical amounts used in the preparation of such Pro Forma Financial Statements.
(d) Neither the Company nor any director or officer long-term debt of the Company or any of its Subsidiaries nor(other than as described in the Company Form 10-K or Company Form 10-Q (without giving effect to any supplements or amendments thereto after the execution and delivery of this Agreement)) or any adverse change, to or any development involving a prospective adverse change, in or affecting the knowledge condition (financial or otherwise), results of the Companyoperations, any independent auditor stockholders’ equity, properties, management, business or prospects of the Company or and its Subsidiaries, has identified taken as a whole, in each case except as could not, individually or been made aware of (i) any significant deficiency or material weakness in the system of internal accounting controls utilized by the Company or any of its Subsidiariesaggregate, (ii) any fraud, whether or not material, that involves the Company’s management or other employees who reasonably be expected to have a role in the preparation of financial statements or the internal accounting controls utilized by the Company or any of its Subsidiaries or (iii) any claim or allegation regarding any of the foregoingMaterial Adverse Effect.
(ed) The Except as set forth in Section 3.5(d) of the Disclosure Schedule, the Company maintains a system of internal controls over financial reporting (as such term is defined in Rule 13a-15(f) of the Exchange Act) that complies in all material respects with the requirements of the Exchange Act and that has been designed by, or under the supervision of, the Company’s principal executive and principal financial officers, to provide assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with GAAP. Except as set forth in Section 3.5(d) of the Disclosure Schedule, the Company maintains internal accounting controls which the Company reasonably believes is sufficient designed to provide reasonable assurance that (i) transactions are executed in accordance with management’s general or specific authorizationsauthorization, (ii) transactions are recorded as necessary to permit preparation of the Company’s financial statements in conformity with IFRS GAAP and to maintain asset accountabilityaccountability for its assets, (iii) access to the Company’s assets is permitted only in accordance with management’s general or specific authorization authorization, and (iv) the recorded accountability for the Company’s assets is compared with the existing assets at reasonable intervals and appropriate action is taken with respect to any differences. The books and records As of the date of the most recent balance sheet of the Company have beenand its consolidated Subsidiaries reviewed or audited by P▇▇▇▇▇ & M▇▇▇▇, PLLC and are beingthe audit committee of the board of directors of the Company, maintained there were no material weaknesses in all material respects in accordance with IFRS and any other applicable legal and accounting requirementsthe Company’s internal controls.
(fe) Except as set forth on in Section 4.8(f3.5(e) of the Company Disclosure LetterSchedule, there are no outstanding loans or other extensions since the date of credit made by the most recent balance sheet of the Company and its consolidated Subsidiaries reviewed or its Subsidiaries to audited by P▇▇▇▇▇ & M▇▇▇▇, PLLC and the audit committee of the board of directors of the Company, (i) the Company has not been advised of or become aware of (x) any significant deficiencies in the design or operation of their respective executive officers (as defined in Rule 3b-7 under internal controls, that could adversely affect the Exchange Act) or any director ability of the Company or any of its Subsidiaries to record, process, summarize and report financial data, or any material weaknesses in internal controls, and (y) any fraud, whether or not material, that involves management or other employees who have a significant role in the internal controls of the Company and each of its Subsidiaries; and (ii) there have been no significant changes in internal controls or in other factors that could significantly adversely affect internal controls, including any corrective actions with regard to significant deficiencies and material weaknesses.
Appears in 1 contract
Sources: Restructuring and Exchange Agreement (Xtant Medical Holdings, Inc.)
Financial Statements; Internal Controls. (ai) The Company Seller has previously provided delivered to Acquiror Parent true and complete copies of (A) its balance sheets as of December 31, 2009 and 2010 and the audited consolidated statement of financial position and consolidated related statements of comprehensive incomeoperations, changes in stockholders’ equity and cash flows of the Company and its Subsidiaries as of and for the fiscal years then ended, including the footnotes thereto, if any, and the report prepared in connection therewith by the independent certified public accountants auditing such financial statements; (B) an unaudited consolidated balance sheet and related statements of operations, stockholders’ equity and cash flows for the fiscal year ended December 31, 2023 2011; and (C) its interim monthly financial reports and financial statements for the period beginning after December 31, 20222011 and ended on February 29, together with 2012. The documents described in clauses (A)—(C) above (collectively, the auditor’s reports thereon“Seller Financial Statements”):
1) are true, which comply complete and correct in all material respects respects;
2) are in accordance with the applicable accounting requirements (including the standards books and records of the PCAOB) and with the rules and regulations of the SEC, the Exchange Act and the Securities Act applicable to a registrant (the “Audited Financial Statements” and the Audited Financial Statements together with the H1 Financial Statements to be delivered pursuant to this Agreement, the “Financial Statements”).
(b) Except as set forth on Section 4.8(b) of the Company Disclosure Letter, the Financial Statements (i) fairly present Seller in all material respects respects;
3) present fairly and accurately the consolidated assets, liabilities, revenues, expenses and financial position condition of Seller as of the Company and its consolidated Subsidiaries, as at the respective dates thereof, and the consolidated results of their operations, their consolidated incomes, their consolidated changes in equity and their consolidated cash flows operations for the respective periods then ended (except as may be indicated in the notes thereto and subject, in the case of the H1 Financial Statements, to normal year-end adjustment and the absence of footnotes), (iiended;
4) were prepared in conformity with IFRS applied on a consistent basis during throughout the periods involved involved; and
5) have been prepared in accordance with GAAP.
(subjectii) Neither Seller nor any of its Subsidiaries has any material liability (whether absolute, accrued, contingent or otherwise and whether due or to become due), except for those liabilities that are reflected on or reserved against the unaudited consolidated balance sheet of Seller for the fiscal quarter and year ended December 31, 2011 (including any notes thereto) and for liabilities incurred in the case ordinary course of the H1 Financial Statementsbusiness consistent with past practice since December 31, to normal year-end adjustment 2011 or in connection with this Agreement and the absence of footnotes), transactions contemplated hereby.
(iii) were prepared fromThe records, systems, controls, data and are in accordance in all material respects with, the books and records information of the Company Seller and its consolidated SubsidiariesSubsidiaries are recorded, stored, maintained and operated under means (including any electronic, mechanical or photographic process, whether computerized or not) that are under the exclusive ownership and direct control of Seller or its Subsidiaries or accountants (including all means of access thereto and therefrom), except for any non-exclusive ownership and non-direct control that would not reasonably be expected to have a Material Adverse Effect on the system of internal accounting controls described in this Section 5.02(g)(iii).
(iv) in the case of the Audited Financial StatementsSince December 31, were prepared in compliance in all material respects with the applicable accounting requirements 2011, (including the standards of the PCAOBA) and with the rules and regulations of the SEC, the Exchange Act and the Securities Act applicable to a registrant, in effect as of the respective dates thereof, and (v) in the case of the H1 Financial Statements, when delivered by the Company for inclusion in the Proxy/Registration Statement for filing with the SEC following through the date of this Agreement in accordance with Section 7.3hereof, will comply in all material respects with the applicable accounting requirements (including the standards of the PCAOB) and with the rules and regulations of the SEC, the Exchange Act and the Securities Act applicable to a registrant, in effect as of the respective dates thereof.
(c) The Pro Forma Financial Statements will, when provided, present fairly in all material respects the information shown therein, comply in all material respects with the applicable accounting requirements (including the standards of the PCAOB) and with the rules and regulations of the SEC, the Exchange Act and the Securities Act applicable thereto, in effect as of the respective dates thereof, and will have been compiled on a basis consistent with that of the Audited Financial Statements. The assumptions, information and data used in the preparation of such Pro Forma Financial Statements are reasonably believed by the Company to be reasonable in light of current conditions and facts known to the Company, the pro forma adjustments used therein will be appropriate to give effect to the transactions or circumstances described therein, and the pro forma adjustments will have been properly applied to the historical amounts used in the preparation of such Pro Forma Financial Statements.
(d) Neither the Company neither Seller nor any director or officer of the Company or any of its Subsidiaries nor, to the Seller’s knowledge, any director, officer, employee, auditor, accountant or representative of Seller 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 Companyaccounting or auditing practices, procedures, methodologies or methods of Seller or any independent auditor of the Company its Subsidiaries or its Subsidiaries, has identified or been made aware of (i) any significant deficiency or material weakness in the system of their respective internal accounting controls utilized by the Company controls, including any material complaint, allegation, assertion or claim that Seller or any of its Subsidiaries has engaged in questionable accounting or auditing practices, and (B) no attorney representing Seller or any of its Subsidiaries, (ii) any fraud, whether or not materialemployed by Seller or any of its Subsidiaries, that involves the Company’s management has reported evidence of a material violation of securities laws, breach of fiduciary duty or other employees who have a role in the preparation of financial statements or the internal accounting controls utilized similar violation by the Company Seller or any of its Subsidiaries or (iii) any claim or allegation regarding any of the foregoing.
(e) The Company maintains a system of internal accounting controls which the Company reasonably believes is 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 IFRS 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. The books and records of the Company have been, and are being, maintained in all material respects in accordance with IFRS and any other applicable legal and accounting requirements.
(f) Except as set forth on Section 4.8(f) of the Company Disclosure Letter, there are no outstanding loans or other extensions of credit made by the Company or its Subsidiaries to any of their respective executive officers (as defined in Rule 3b-7 under the Exchange Act) officers, directors, employees or agents to Seller’s Board of Directors of Seller or any committee thereof or to any Seller director or officer with a title of the Company or its Subsidiariesnot less than vice president.
Appears in 1 contract
Sources: Merger Agreement (S&t Bancorp Inc)
Financial Statements; Internal Controls. (a) The Attached as Section 5.9(a) of the Company has previously provided to Acquiror Disclosure Letter are: true and complete copies of (i) the audited consolidated statement of financial position positions and consolidated statements of comprehensive income, changes in equity and cash flows of the Company and its Subsidiaries as of and for the years ended December 31, 2023 2021 and December 31, 20222020, together with the auditor’s reports thereonthereon (collectively, which comply in all material respects with the applicable accounting requirements (including the standards of the PCAOB) and with the rules and regulations of the SEC, the Exchange Act and the Securities Act applicable to a registrant (the “Audited Financial Statements”) and (ii) the unaudited consolidated statement of financial positions and consolidated statements of comprehensive income, changes in equity and cash flows of the Company and its Subsidiaries as of and for the three-month period ending March 31, 2022 (the “Q1 Financial Statements” and together with the Audited Financial Statements together with the H1 Financial Statements to be delivered pursuant to this AgreementStatements, the “Financial Statements”).
(b) Except as set forth on Section 4.8(b) of the Company Disclosure Letter, the The Financial Statements (i) fairly present in all material respects the consolidated financial position of the Company and its consolidated Subsidiaries, as at the respective dates thereof, and the consolidated results of their operations, their consolidated incomes, their consolidated changes in equity and their consolidated cash flows for the respective periods then ended (except as may be indicated in the notes thereto and subject, in the case of the H1 Q1 Financial Statements, to normal year-end adjustment and the absence of footnotes), (ii) were prepared in conformity with all applicable Laws and IFRS applied on a consistent basis during the periods involved (except as may be indicated in the notes thereto and subject, in the case of the H1 Q1 Financial Statements, to normal year-end adjustment and the absence of footnotes), (iii) were prepared from, and are in accordance in all material respects with, the books and records of the Company and its consolidated Subsidiaries, Subsidiaries and (iv) in the case of the Audited Financial Statements, were prepared in compliance in all material respects with the applicable accounting requirements (including the standards of the PCAOB) and with the rules and regulations of the SEC, the Exchange Act and the Securities Act applicable to a registrant, in effect as of the respective dates thereof, and (v) in the case of the H1 Financial Statements, when delivered by the Company for inclusion in the Proxy/Registration Statement for filing with the SEC following the date of this Agreement in accordance with Section 7.3, will Statements comply in all material respects with the applicable accounting requirements (including the standards of the PCAOB) and with the rules and regulations of the SEC, the Exchange Act and the Securities Act applicable to a registrant, in effect as of the respective dates thereof.
(c) The Pro Forma Financial Statements will, when provided, present fairly in all material respects the information shown therein, comply in all material respects with the applicable accounting requirements (including the standards of the PCAOB) and with the rules and regulations of the SEC, the Exchange Act and the Securities Act applicable thereto, in effect as of the respective dates thereof, and will have been compiled on a basis consistent with that of the Audited Financial Statements. The assumptions, information and data used in the preparation of such Pro Forma Financial Statements are reasonably believed by the Company to be reasonable in light of current conditions and facts known to the Company, the pro forma adjustments used therein will be appropriate to give effect to the transactions or circumstances described therein, and the pro forma adjustments will have been properly applied to the historical amounts used in the preparation of such Pro Forma Financial Statements.
(d) Neither the Company nor any director or officer of the Company or any of its Subsidiaries norSubsidiaries, nor to the knowledge of the Company, any independent auditor of the Company or its Subsidiaries, has identified or been made aware of (i) any significant deficiency or material weakness in the system of internal accounting controls utilized by the Company or any of its Subsidiaries, (ii) 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 or any of its Subsidiaries or (iii) any claim or allegation regarding any of the foregoing.
(ed) The Company maintains a system of internal accounting controls controls, policies and procedures (whether formal or informal) which the Company is reasonably believes is sufficient to provide reasonable assurance that (i) that transactions are executed in accordance with management’s general or specific authorizations, (ii) that transactions are recorded recorded, and records are maintained in reasonable detail as necessary to permit preparation of accurate financial statements in conformity with IFRS IFRS, which fairly reflect the transactions and disposition of assets of each of the Company and its Subsidiaries and to maintain asset accountability, (iii) that access to assets is permitted only in accordance with management’s general or specific authorization and authorization, (iv) that the recorded accountability for assets is compared with the existing assets at reasonable intervals and appropriate action is taken with respect to any differences. , (v) that information required to be disclosed by each of the Company and its Subsidiaries is recorded and reported on a timely basis, and (vi) regarding prevention or timely detection of unauthorized acquisitions, misappropriation, use or disposition of the Company’s, or its Subsidiaries’, assets that could have a material effect on its financial statements (such materiality assessed with respect to a Company Material Adverse Effect).
(e) The books and records of the Company have been, and are being, maintained in all material respects in accordance with IFRS and any other applicable legal and accounting requirements.
(f) Except as set forth on Section 4.8(f) The Company, and each of the Company Disclosure Letterits Subsidiaries, there are no do not have any outstanding loans loan capital and has not engaged in nor agreed to engage in any financing or other extensions transaction or act of credit made by a type which would not be required to be shown or reflected in the Company or its Subsidiaries to any of their respective executive officers (as defined in Rule 3b-7 under the Exchange Act) or any director of the Company or its SubsidiariesFinancial Statements.
Appears in 1 contract
Sources: Business Combination Agreement (Fat Projects Acquisition Corp)
Financial Statements; Internal Controls. (a) The Company has previously provided made available to Acquiror GCAC in the Virtual Data Room true and complete copies of the audited consolidated statement balance sheets of financial position the Company as of December 31, 2019 and consolidated as of December 31, 2020, and the related statements of comprehensive incomeoperations and cash flows of the Company for each of the years then ended (collectively, changes the “Audited Annual Financial Statements”). Each of the Audited Annual Financial Statements (including the notes thereto) (i) was prepared in equity accordance with United States generally accepted accounting principles (“GAAP”) applied on a consistent basis throughout the periods indicated (except as may be indicated in the notes thereto) and (ii) fairly presents, in all material respects, the financial position, results of operations and cash flows of the Company and Subsidiaries as of and at the date thereof and for the period indicated therein, except as otherwise noted therein. Each of the PCAOB Audited Financials (as described in Section 7.01(a)) (including the notes thereto), when delivered in accordance with this Agreement (i) will be prepared in accordance with GAAP applied on a consistent basis throughout the periods indicated (except as may be indicated in the notes thereto) and (ii) will fairly present, in all material respects, the financial position, results of operations and cash flows of the Company and its Subsidiaries as of and at the date thereof and for the years ended December 31period indicated therein, 2023 and December 31, 2022, together with the auditor’s reports thereon, which comply in all material respects with the applicable accounting requirements (including the standards of the PCAOB) and with the rules and regulations of the SEC, the Exchange Act and the Securities Act applicable to a registrant (the “Audited Financial Statements” and the Audited Financial Statements together with the H1 Financial Statements to be delivered pursuant to this Agreement, the “Financial Statements”)except as otherwise noted therein.
(b) Except The Company has made available to GCAC in the Virtual Data Room true and complete copies of the unaudited balance sheet of the Company as set forth on of March 31, 2021 (the “Interim Financial Statements Date”), and the related unaudited statements of operations and cash flows of the Company for the three-month period then ended (collectively, the “Interim Financial Statements”), which are attached as Section 4.8(b4.07(b) of the Company Disclosure Letter, the Schedule. The Interim Financial Statements were prepared in accordance with GAAP applied on a consistent basis throughout the periods indicated (iexcept for the omission of footnotes and subject to year-end adjustments) and fairly present present, in all material respects respects, the consolidated financial position position, results of operations and cash flows of the Company and its consolidated Subsidiaries, Subsidiaries as of and at the respective dates thereof, date thereof and the consolidated results of their operations, their consolidated incomes, their consolidated changes in equity and their consolidated cash flows for the respective periods then ended (period indicated therein, except as may be indicated in the notes thereto otherwise noted therein and subject, in the case of the H1 Financial Statements, subject to normal and recurring year-end adjustment and the absence of footnotes), (ii) were prepared in conformity with IFRS applied on a consistent basis during the periods involved (subject, in the case of the H1 Financial Statements, to normal year-end adjustment and the absence of footnotes), (iii) were prepared from, and are in accordance in all material respects with, the books and records of the Company and its consolidated Subsidiaries, (iv) in the case of the Audited Financial Statements, were prepared in compliance in all material respects with the applicable accounting requirements (including the standards of the PCAOB) and with the rules and regulations of the SEC, the Exchange Act and the Securities Act applicable to a registrant, in effect as of the respective dates thereof, and (v) in the case of the H1 Financial Statements, when delivered by the Company for inclusion in the Proxy/Registration Statement for filing with the SEC following the date of this Agreement in accordance with Section 7.3, will comply in all material respects with the applicable accounting requirements (including the standards of the PCAOB) and with the rules and regulations of the SEC, the Exchange Act and the Securities Act applicable to a registrant, in effect as of the respective dates thereofadjustments.
(c) The Pro Forma Except as and to the extent set forth on the Audited Annual Financial Statements willor the Interim Financial Statements, or, when provided, present fairly in all material respects the information shown therein, comply in all material respects with the applicable accounting requirements (including the standards of the PCAOB) and with the rules and regulations of the SECdelivered, the Exchange Act and PCAOB Audited Financials, the Securities Act applicable theretoCompany does not have any liability, in effect as debt or obligation of the respective dates thereofa nature (whether accrued, and will have been compiled absolute, contingent or otherwise), required to be reflected on a basis consistent consolidated balance sheet prepared in accordance with GAAP consistently applied and in accordance with past practice, except for: (i) liabilities that of the Audited Financial Statements. The assumptions, information and data used were incurred in the preparation ordinary course of such Pro Forma business since the Interim Financial Statements are reasonably believed by Date, (ii) liabilities or obligations disclosed in the Company Disclosure Schedule or (iii) such other liabilities and obligations which would not, individually or in the aggregate, reasonably expected to be reasonable in light of current conditions and facts known material to the Company, the pro forma adjustments used therein will be appropriate to give effect to the transactions or circumstances described therein, and the pro forma adjustments will have been properly applied to the historical amounts used in the preparation of such Pro Forma Financial Statements.
(d) Neither the Company nor any director or officer . None of the Company or any of its Subsidiaries noris a party to, or has any commitment to become a party to, any contract or arrangement that would constitute an “off balance sheet arrangement” (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 on the Audited Annual Financial Statements or the Interim Financial Statements, or, when delivered, the PCAOB Audited Financials.
(d) Since the Formation Date, (i) none of the Company, any of its Subsidiaries or, to the Company’s knowledge, 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 complaint, allegation, assertion or claim, whether written or, to the knowledge of the Company, oral, regarding the accounting or auditing practices, procedures, methodologies or methods of the Company, its Subsidiaries or their respective internal accounting controls, including any such complaint, allegation, assertion or claim that the Company or any of its Subsidiaries has engaged in questionable accounting or auditing practices and (ii) there have been no internal investigations regarding accounting or revenue recognition discussed with, reviewed by or initiated at the direction of the chief executive officer, chief financial officer, general counsel, the Company Board or any committee thereof.
(e) To the knowledge of the Company, no employee of the Company or any of its Subsidiaries has provided or is providing information to any law enforcement agency regarding the commission or possible commission of any crime or the violation or possible violation of any applicable Law. None of the Company, any of its Subsidiaries or, to the knowledge of the Company, any independent auditor officer, employee, contractor, subcontractor or agent of the Company or any of its Subsidiaries 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 act of such employee described in 18 U.S.C. sec. 1514A(a).
(f) All accounts receivable of the Company or any of its Subsidiaries reflected on the Interim Financial Statements or arising thereafter have arisen from bona fide transactions in the ordinary course of business consistent with past practices and in accordance with GAAP and are collectible, subject to bad debts reserved in the Interim Financial Statements. To the knowledge of the Company, such accounts receivables are not subject to valid defenses, setoffs or counterclaims, other than routine credits granted for errors in ordering, shipping, pricing, discounts, rebates, returns in the ordinary course of business and other similar matters. The Company’s reserve for contractual allowances and doubtful accounts is adequate in all material respects and has been calculated in a manner consistent with past practices. Since December 31, 2020, none of the Company or any of its Subsidiaries has modified or changed in any material respect its sales practices or methods, including such practices or methods in accordance with which the Company or any of its Subsidiaries sells goods, fills orders or record sales.
(g) All accounts payable of the Company or any of its Subsidiaries reflected on the Interim Financial Statements or arising thereafter are the result of bona fide transactions in the ordinary course of business and have been paid or are not yet due or payable. Since December 31, 2020, none of the Company or any of its Subsidiaries has altered in any material respects its practices for the payment of such accounts payable, including the timing of such payment.
(h) The Company and its Subsidiaries maintain systems of internal control over financial reporting that are sufficient to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with GAAP, including policies and procedures sufficient to provide reasonable assurance: (i) that the Company and its Subsidiaries maintains records that in reasonable detail accurately and fairly reflect, in all material respects, its transactions and dispositions of assets; (ii) that transactions are recorded as necessary to permit the preparation of financial statements in conformity with GAAP; (iii) that receipts and expenditures are being made only in accordance with authorizations of the Company’s management and the Company Board; and (iv) regarding prevention or timely detection of unauthorized acquisition, use or disposition of its assets that could have a material effect on its financial statements. The Company has made available to GCAC a true and complete copy of any disclosure (or, if unwritten, a summary thereof) by any representative of the Company or any of its Subsidiaries to the Company’s or any of its Subsidiaries’ respective independent auditors relating to any material weaknesses in internal controls and any significant deficiencies in the design or operation of internal controls that would adversely affect the ability of the Company or any of its Subsidiaries to record, process, summarize and report financial data. The Company has no knowledge of any fraud or whistle-blower allegations, whether or not material, that involve management or other employees or consultants who have or had a significant role in the internal control over financial reporting of the Company or any of its Subsidiaries. Since December 31, 2020, there have been no material changes in the Company’s or any of its Subsidiaries’ respective internal control over financial reporting.
(i) Neither the Company (including any employee thereof) nor the Company’s independent auditors has identified or been made aware of (i) any significant deficiency or material weakness in the system of internal accounting controls utilized by the Company or any of its Subsidiaries, (ii) any fraud, whether or not material, that involves the Company’s or any of its Subsidiaries’ respective management or other employees who have a role in the preparation of financial statements or the internal accounting controls utilized by the Company or any of its Subsidiaries or (iii) any claim or allegation regarding any of the foregoing.
(e) The Company maintains a system of internal accounting controls which the Company reasonably believes is 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 IFRS 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. The books and records of the Company have been, and are being, maintained in all material respects in accordance with IFRS and any other applicable legal and accounting requirements.
(f) Except as set forth on Section 4.8(f) of the Company Disclosure Letter, there are no outstanding loans or other extensions of credit made by the Company or its Subsidiaries to any of their respective executive officers (as defined in Rule 3b-7 under the Exchange Act) or any director of the Company or its Subsidiaries.
Appears in 1 contract
Sources: Business Combination Agreement (Growth Capital Acquisition Corp.)
Financial Statements; Internal Controls. (a) The Section 3.5(a) of the Company has previously provided to Acquiror true Disclosure Letter sets forth or will, upon delivery in accordance with Section 5.5(a), set forth (i) the audited consolidated balance sheets of the Company and complete copies its Subsidiaries as of December 31, 2019 and the audited consolidated statement of financial position and consolidated operations, statements of comprehensive incomeincome (loss), statements of stockholders’ equity and statements of cash flows of the Company and its Subsidiaries for the same period, together with the auditor’s reports thereon (the “Audited Financial Statements”) and (ii) the unaudited consolidated balance sheets of the Company and its Subsidiaries as of September 30, 2020 and the unaudited consolidated statement of operations and statement of cash flows of the Company and its Subsidiaries as of September 30, 2020 (the “Unaudited Financial Statements” and, together with the Audited Financial Statements, the “Financial Statements”). The Financial Statements (including any related notes and schedules thereto) present fairly, in all material respects, the consolidated financial position, results of operations, income (loss), changes in equity and cash flows of the Company and its Subsidiaries as of the dates and for the years ended December 31, 2023 and December 31, 2022, together with the auditor’s reports thereon, which comply periods indicated in all material respects with the applicable accounting requirements (including the standards of the PCAOB) and with the rules and regulations of the SEC, the Exchange Act and the Securities Act applicable to a registrant (the “Audited Financial Statements” and the Audited Financial Statements together with the H1 Financial Statements to be delivered pursuant to this Agreement, the “Financial Statements”).
(b) Except as set forth on Section 4.8(b) of the Company Disclosure Letter, the such Financial Statements (i) fairly present in all material respects the consolidated financial position of the Company and its consolidated Subsidiaries, as at the respective dates thereof, and the consolidated results of their operations, their consolidated incomes, their consolidated changes in equity and their consolidated cash flows for the respective periods then ended (except as may be indicated in the notes thereto and subjectexcept, in the case of the H1 Unaudited Financial Statements, to for the absence of footnotes (which if presented would not differ materially from those presented in the most recent year-end financial statements) and other presentation items and normal year-end adjustment and the absence of footnotesadjustments), (ii) were prepared in each case, in conformity with IFRS GAAP, consistently applied on a consistent basis during the periods involved (subjectinvolved, in the case of the H1 Financial Statements, to normal year-end adjustment and the absence of footnotes), (iii) were prepared derived from, and are in accordance accurately reflect in all material respects withrespects, the books and records of the Company and its consolidated Subsidiaries.
(b) Except as would not reasonably be expected to be material to the Company and its Subsidiaries, (iv) taken as a whole, all accounts receivable reflected in the case of the Audited Financial Statements, were prepared and all accounts receivable arising since September 30, 2020, to the extent still outstanding, represent arm’s length sales in compliance in all material respects with the applicable accounting requirements (including the standards ordinary course of business, constitute valid claims of the PCAOBCompany or one of its Subsidiaries, as applicable, free and clear of all Liens other than Permitted Liens, and are not subject to any dispute, claim, set-off or other defense or counterclaims other than returns in the ordinary course of business. Since September 30, 2020, (i) and there have not been any write-offs as uncollectible of such accounts receivable, except for write-offs in the ordinary course of business consistent with the rules and regulations of the SEC, the Exchange Act and the Securities Act applicable to a registrant, in effect as of the respective dates thereofpast practice, and (vii) there has not been a material change in the case aggregate amount of the H1 Financial Statements, when delivered by such accounts receivable and amounts owing to the Company for inclusion in or any of its subsidiaries or the Proxy/Registration Statement for filing with the SEC following the date of this Agreement in accordance with Section 7.3, will comply in all material respects with the applicable accounting requirements (including the standards of the PCAOB) and with the rules and regulations of the SEC, the Exchange Act and the Securities Act applicable to a registrant, in effect as of the respective dates aging thereof.
(c) Section 3.5(c) of the Company Disclosure Letter sets forth the Company’s aggregate Bookings and anticipated deliveries from such Bookings, in each case, as of December 31, 2020 (the “Bookings Information”). The Pro Forma Financial Statements willBookings Information was derived from the books and records of the Company and its Subsidiaries, when providedrepresents reasonably anticipated future revenues based on definitive agreements or letters of intent entered into by the Company and a third party, present fairly and is true and correct in all material respects the information shown therein, comply in all material respects with the applicable accounting requirements (including the standards of the PCAOB) and with the rules and regulations of the SEC, the Exchange Act and the Securities Act applicable thereto, in effect as of the respective dates thereof, and will have been compiled on a basis consistent with that of the Audited Financial Statements. The assumptions, information and data used in the preparation of such Pro Forma Financial Statements are reasonably believed by the Company to be reasonable in light of current conditions and facts known to the Company, the pro forma adjustments used therein will be appropriate to give effect to the transactions or circumstances described therein, and the pro forma adjustments will have been properly applied to the historical amounts used in the preparation of such Pro Forma Financial Statementsrespects.
(d) Neither The Company maintains a system of internal accounting controls designed to provide reasonable assurance that: (a) transactions are executed in accordance with management’s general or specific authorizations; (b) transactions are recorded as necessary to permit preparation of financial statements in conformity with GAAP and to maintain asset accountability; (c) access to property is permitted only in accordance with management’s general or specific authorization; and (d) the recorded accountability for assets is compared with the existing assets at reasonable intervals and appropriate action is taken with respect to any differences.
(e) Since December 31, 2017 (the “Applicable Date”), neither the Company nor any director or officer of the Company or any of its Subsidiaries nor, to the knowledge of (including any employee thereof) nor the Company, any ’s independent auditor of the Company or its Subsidiaries, auditors has identified or been made aware of (i) any significant deficiency or material weakness in the system of internal accounting controls utilized by the Company or any of its Subsidiaries, (ii) 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, nor has any written complaint, allegation, assertion or claim that the Company or any of its Subsidiaries has engaged in questionable accounting or auditing practices been received by the Company or any of its Subsidiaries. Since the Applicable Date, 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 Subsidiaries or (iii) any claim or allegation regarding any of the foregoing.
(e) The Company maintains a system of internal accounting controls which the Company reasonably believes is 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 IFRS 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. The books and records of the Company have been, and are being, maintained in all material respects in accordance with IFRS and any other applicable legal and accounting requirements.
(f) Except as set forth on Section 4.8(f) of the Company Disclosure Letter, there are no outstanding loans or other extensions of credit made by the Company or its Subsidiaries to any of their respective executive officers Representatives to the Company Board or the board of directors (as defined in Rule 3b-7 under the Exchange Actor similar governing body) of any of its Subsidiaries or any committee thereof or to any director or officer of the Company or any of its Subsidiaries.
Appears in 1 contract
Sources: Merger Agreement (TS Innovation Acquisitions Corp.)
Financial Statements; Internal Controls. (ai) The Company Park has previously provided delivered to Acquiror Vision Bancshares true and complete copies of (A) Park’s consolidated balance sheets as of December 31, 2003, 2004 and 2005 and the audited consolidated statement of financial position and related consolidated statements of comprehensive income, changes in operations, stockholders’ equity and cash flows for the fiscal years then ended, including the footnotes thereto, if any, additional or supplemental information supplied therewith and the report prepared in connection therewith by the independent registered public accounting firm auditing such financial statements; and (B) Park’s interim unaudited consolidated financial statements for three and six months ended June 30, 2006. The documents described in clauses (A) and (B) above (collectively, the “Park Financial Statements”):
(1) are true, complete and correct;
(2) are in accordance with the books and records of Park;
(3) comply as to form in all material respects with applicable accounting requirements and the published rules and regulations of the Company SEC with respect thereto;
(4) fairly and accurately present the consolidated financial condition of Park and its Subsidiaries as of and for the years ended December 31, 2023 and December 31, 2022, together with the auditor’s reports thereon, which comply in all material respects with the applicable accounting requirements (including the standards of the PCAOB) and with the rules and regulations of the SEC, the Exchange Act and the Securities Act applicable to a registrant (the “Audited Financial Statements” and the Audited Financial Statements together with the H1 Financial Statements to be delivered pursuant to this Agreement, the “Financial Statements”).
(b) Except as set forth on Section 4.8(b) of the Company Disclosure Letter, the Financial Statements (i) fairly present in all material respects the consolidated financial position of the Company and its consolidated Subsidiaries, as at the respective dates thereof, and the their respective consolidated results of their operations, their consolidated incomes, their consolidated changes in equity operations and their consolidated cash flows for the respective periods then ended ended, as applicable (except in each case as may be indicated in the notes thereto noted therein and subject, in the case of unaudited interim financial statements, to the H1 Financial Statements, absence of full footnotes and to normal year-end adjustment and the absence of footnotesaudit adjustments that are not material in amount or in effect), ;
(ii5) were prepared on a consistent basis throughout the periods involved; and
(6) have been prepared in conformity accordance with IFRS GAAP (except, in the case of unaudited financial statements, as permitted by Form 10-Q of the SEC) applied on a consistent basis during the periods involved (except in each case as may be noted therein and subject, in the case of unaudited interim financial statements, to the H1 Financial Statements, absence of full footnotes and to normal year-end adjustment and the absence of footnotesaudit adjustments that are not material in amount or in effect), (iii) were prepared from, and are in accordance in all material respects with, the books and records of the Company and its consolidated Subsidiaries, (iv) in the case of the Audited Financial Statements, were prepared in compliance in all material respects with the applicable accounting requirements (including the standards of the PCAOB) and with the rules and regulations of the SEC, the Exchange Act and the Securities Act applicable to a registrant, in effect as of the respective dates thereof, and (v) in the case of the H1 Financial Statements, when delivered by the Company for inclusion in the Proxy/Registration Statement for filing with the SEC following the date of this Agreement in accordance with Section 7.3, will comply in all material respects with the applicable accounting requirements (including the standards of the PCAOB) and with the rules and regulations of the SEC, the Exchange Act and the Securities Act applicable to a registrant, in effect as of the respective dates thereof.
(cii) The Pro Forma Financial Statements willrecords, when providedsystems, present fairly in all material respects the controls, data and information shown thereinof Park and its Subsidiaries are recorded, comply in all material respects with the applicable accounting requirements stored, maintained and operated under means (including any electronic, mechanical or photographic process, whether computerized or not) that are under the standards exclusive ownership and direct control of the PCAOB) and with the rules and regulations of the SEC, the Exchange Act and the Securities Act applicable thereto, in effect as of the respective dates thereof, and will have been compiled on a basis consistent with that of the Audited Financial Statements. The assumptions, information and data used in the preparation of such Pro Forma Financial Statements are reasonably believed by the Company to be reasonable in light of current conditions and facts known to the Company, the pro forma adjustments used therein will be appropriate to give effect to the transactions Park or circumstances described therein, and the pro forma adjustments will have been properly applied to the historical amounts used in the preparation of such Pro Forma Financial Statements.
(d) Neither the Company nor any director or officer of the Company or any one of its Subsidiaries noror their respective accountants (including all means of access thereto and therefrom), except for any non-exclusive ownership and non-direct control that would not reasonably be expected to the knowledge of the Company, any independent auditor of the Company or its Subsidiaries, has identified or been made aware of (i) any significant deficiency or material weakness in have a Material Adverse Effect on the system of internal accounting controls utilized described below in this Section 5.03(f)(ii). Park and its Subsidiaries have devised and maintain a system of internal accounting controls sufficient to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial
(1) has implemented and maintains disclosure controls and procedures (as defined in Rule 13a-15 promulgated under the Exchange Act) to ensure that material information relating to Park and its Subsidiaries is made known to the management of Park by others within Park and its Subsidiaries as appropriate to allow timely decisions regarding required disclosure and to make the certifications required by the Company Exchange Act with respect to the Park SEC Documents, and (2) has disclosed, based on its most recent evaluation prior to the date hereof, to Park’s outside auditors and the audit committee of the Park Board (y) any significant deficiencies and material weaknesses in the design or any operation of its Subsidiariesinternal control over financial reporting (as defined in Rule 13a-15 promulgated under the Exchange Act) that are reasonably likely to adversely affect Park’s ability to record, process, summarize and report financial information and (iiz) any fraud, whether or not material, that involves the Company’s management or other employees who have a significant role in the preparation of Park’s internal control over financial statements or the internal accounting controls utilized by the Company or any of its Subsidiaries or (iii) any claim or allegation regarding any reporting. As of the foregoing.
(e) The Company maintains a system of internal accounting controls which date hereof, there is no reason to believe that Park’s outside auditors and its principal executive officer and principal financial officer will not be able to give the Company reasonably believes is sufficient certifications and attestations required pursuant to provide reasonable assurance that (i) transactions are executed in accordance with management’s general or specific authorizationsthe rules and regulations adopted pursuant to Sections 302, (ii) transactions are recorded as necessary to permit preparation of financial statements in conformity with IFRS 404 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. The books and records 906 of the Company have been▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act, without qualification (except to the extent expressly permitted by such rules and are beingregulations), maintained in all material respects in accordance with IFRS and any other applicable legal and accounting requirementswhen next due.
(f) Except as set forth on Section 4.8(f) of the Company Disclosure Letter, there are no outstanding loans or other extensions of credit made by the Company or its Subsidiaries to any of their respective executive officers (as defined in Rule 3b-7 under the Exchange Act) or any director of the Company or its Subsidiaries.
Appears in 1 contract
Financial Statements; Internal Controls. (a) The Company has previously provided delivered to Acquiror true Parent accurate and complete copies of the (i) audited consolidated statement financial statements, including balance sheets and income statements, of the Company Foreign Subsidiaries for the calendar years ended December 31, 2016 and December 31, 2015 (the “Company Audited Financial Statements”), and (ii) copies of the unaudited consolidated financial position statements, including balance sheets and consolidated statements of comprehensive incomeincome statements, changes in equity and cash flows of the Company and its Subsidiaries as of and (including the Company Foreign Subsidiaries), for the years calendar year ended December 31, 2023 2016 and December for the period from January 1, 2017 through May 31, 20222017 (collectively, the “Company Unaudited Financial Statements,” and together with the auditor’s reports thereon, which comply in all material respects with the applicable accounting requirements (including the standards of the PCAOB) and with the rules and regulations of the SEC, the Exchange Act and the Securities Act applicable to a registrant (the “Company Audited Financial Statements” and the Audited Financial Statements together with the H1 Financial Statements to be delivered pursuant to this Agreement, the “Company Financial Statements”) (such balance sheet being referred to as the “Company Latest Balance Sheet”).
(b) Except as set forth on Section 4.8(b) of the The Company Disclosure Letter, the Financial Statements (i) fairly present were prepared in all material respects accordance with GAAP applied on a consistent basis throughout the consolidated financial position of the Company and its consolidated Subsidiaries, as at the respective dates thereof, and the consolidated results of their operations, their consolidated incomes, their consolidated changes in equity and their consolidated cash flows for the respective periods then ended covered except (except 1) as may be indicated in the notes thereto and subject, in the case of the H1 such Company Financial Statements, to normal year-end adjustment and the absence of footnotes), (ii) were prepared in conformity with IFRS applied on a consistent basis during the periods involved (subject, in the case of the H1 Financial Statements, to normal year-end adjustment and the absence of footnotes), (iii) were prepared from, and are in accordance in all material respects with, the books and records of the Company and its consolidated Subsidiaries, (iv2) in the case of the Audited Company Unaudited Financial Statements, were prepared in compliance in all material respects with the applicable accounting requirements such financial statements do not contain footnotes, (including the standards of the PCAOB) and with the rules and regulations of the SEC, the Exchange Act and the Securities Act applicable to a registrant, in effect as of the respective dates thereof, and (v3) in the case of the H1 interim Company Unaudited Financial Statements, when delivered by the Company for inclusion in the Proxy/Registration Statement for filing with the SEC following the date are subject to normal and recurring year-end adjustments, none of this Agreement in accordance with Section 7.3which are material; and (ii) fairly present, will comply in all material respects with respects, the applicable accounting requirements (including the standards financial position of the PCAOB) and with the rules and regulations of the SEC, the Exchange Act and the Securities Act applicable to a registrant, in effect Company as of the respective dates thereofthereof and the results of operations and cash flows of the Company for the periods covered thereby.
(c) The Pro Forma Financial Statements will, when provided, present fairly in all material respects Company maintains a system of internal controls designed to provide reasonable assurance regarding the information shown therein, comply in all material respects with the applicable accounting requirements (including the standards reliability of the PCAOB) financial reporting and with the rules and regulations of the SEC, the Exchange Act and the Securities Act applicable thereto, in effect as of the respective dates thereof, and will have been compiled on a basis consistent with that of the Audited Financial Statements. The assumptions, information and data used in the preparation of such Pro Forma Financial Statements are reasonably believed by financial statements for external purposes in accordance with GAAP. To the Company to be reasonable in light Knowledge of current conditions and facts known to the Company, since December 31, 2014, until the pro forma adjustments used therein will be appropriate to give effect to the transactions or circumstances described thereindate hereof, and the pro forma adjustments will have been properly applied to the historical amounts used in the preparation of such Pro Forma Financial Statements.
(d) Neither neither the Company nor any director or officer of the Company or any of its Subsidiaries nor, to the knowledge of nor the Company, any ’s independent auditor of the Company or its Subsidiaries, registered accountant has identified or been made aware of of: (iA) any significant deficiency or material weakness in the system design or operation of internal accounting controls control over financial reporting utilized by the Company or any of its Subsidiaries, Entities; (iiB) any illegal act or 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 or any of its Subsidiaries employees; or (iiiC) any claim or allegation regarding any of the foregoing.
(ed) The Company maintains a system of internal accounting controls which Company’s auditor has at all times since its engagement by the Company reasonably believes is sufficient been, to provide reasonable assurance that the Knowledge of the Company: (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 IFRS 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. The books and records of the Company have been, and are being, maintained in all material respects in accordance with IFRS and any other applicable legal and a registered public accounting requirements.
(f) Except as set forth on Section 4.8(f) of the Company Disclosure Letter, there are no outstanding loans or other extensions of credit made by the Company or its Subsidiaries to any of their respective executive officers firm (as defined in Rule 3b-7 Section 2(a)(12) of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act); (ii) “independent” with respect to the Company within the meaning of Regulation S-X under the Exchange Act; and (iii) or any director in compliance with subsections (g) through (l) of Section 10A of the Exchange Act and the rules and regulations promulgated by the SEC and the Public Company or its SubsidiariesAccounting Oversight Board thereunder. The Company’s auditor has not provided any non-audit services for the Company Entities that would be required to be approved in accordance with Section 201 of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act if such Act applied to the Company.
Appears in 1 contract
Financial Statements; Internal Controls. (a) The Company has previously provided delivered to Acquiror true the Investors (i) complete and complete correct copies of the audited consolidated statement of financial position and consolidated statements of comprehensive income, changes in equity and cash flows balance sheet of the Company and its consolidated subsidiaries as of December 31, 2016, and the related consolidated statements of income and shareholders’ equity and statements of cash flows for the fiscal year then ended, including the footnotes thereto, certified by independent certified public accountants, and (ii) copies of the unaudited consolidated balance sheet of the Company and its consolidated Subsidiaries as of September 30, 2017, and the related unaudited consolidated statements of income and shareholders’ equity and statements of cash flows for the years nine month period then ended December 31, 2023 and December 31, 2022, together with (the auditor’s reports thereon, which comply documents in all material respects with the applicable accounting requirements clauses (including the standards of the PCAOBi) and with the rules and regulations of the SEC, the Exchange Act and the Securities Act applicable to a registrant (the “Audited Financial Statements” and the Audited Financial Statements together with the H1 Financial Statements to be delivered pursuant to this Agreement, ii) collectively the “Financial Statements”).
(b) Except as set forth on Section 4.8(b) Each of the Company Disclosure Letter, consolidated balance sheets contained in the Financial Statements (i) fairly present presents in all material respects the consolidated financial position of the Company and its consolidated Subsidiaries, Subsidiaries as at of its date and each of the respective dates thereof, consolidated statements of income and shareholders’ equity and statements of cash flows included in the Financial Statements fairly presents in all material respects the consolidated results of their operations, their shareholders’ equity or cash flows, as the case may be, of the Company and its consolidated incomes, their consolidated changes in equity and their consolidated cash flows Subsidiaries for the respective periods then ended to which they relate (except as may be indicated in the notes thereto and subject, in the case of the H1 Financial Statementsany unaudited interim financial statements, to normal year-end adjustment adjustments and the absence of footnotesfootnote disclosures), (ii) were prepared in conformity each case in accordance with IFRS GAAP applied on a consistent basis during the periods involved involved, except as noted therein.
(subject, c) Since the date of the latest financial statements included in the case Company’s Quarterly Report on Form 10-Q for the quarter ended September 30, 2017 (the “Company Form 10-Q”) and except as disclosed therein, neither the Company nor any of its Subsidiaries has (i) sustained any loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor disturbance or dispute or action or Order from any applicable Governmental Authority, (ii) issued or granted any securities (other than pursuant to (x) employee benefit plans, qualified stock option plans, other employee compensation plans or non-employee director compensation programs in existence on the H1 Financial Statementsdate hereof and described in the Company Form 10-Q or (y) options, to normal year-end adjustment and warrants or rights outstanding on the absence of footnotesdate hereof), (iii) incurred any liability or obligation, direct or contingent, other than liabilities and obligations that were prepared from, and are incurred in accordance in all material respects with, the books and records ordinary course of the Company and its consolidated Subsidiariesbusiness, (iv) entered into any transaction not in the case ordinary course of business (other than as described in the Audited Financial StatementsCompany Form 10-Q (without giving effect to any supplements or amendments thereto after the execution and delivery of this Agreement)), were prepared in compliance in all material respects with the applicable accounting requirements (including the standards of the PCAOB) and with the rules and regulations of the SEC, the Exchange Act and the Securities Act applicable to a registrant, in effect as of the respective dates thereof, and or (v) declared or paid any dividend on its Capital Stock, and, since such date, there has not been any change in the case of the H1 Financial Statements, when delivered by the Company for inclusion in the Proxy/Registration Statement for filing with the SEC following the date of this Agreement in accordance with Section 7.3, will comply in all material respects with the applicable accounting requirements (including the standards of the PCAOB) and with the rules and regulations of the SEC, the Exchange Act and the Securities Act applicable to a registrant, in effect as of the respective dates thereof.
(c) The Pro Forma Financial Statements will, when provided, present fairly in all material respects the information shown therein, comply in all material respects with the applicable accounting requirements (including the standards of the PCAOB) and with the rules and regulations of the SEC, the Exchange Act and the Securities Act applicable thereto, in effect as of the respective dates thereof, and will have been compiled on a basis consistent with that of the Audited Financial Statements. The assumptions, information and data used in the preparation of such Pro Forma Financial Statements are reasonably believed by the Company to be reasonable in light of current conditions and facts known to the Company, the pro forma adjustments used therein will be appropriate to give effect to the transactions Equity Interests or circumstances described therein, and the pro forma adjustments will have been properly applied to the historical amounts used in the preparation of such Pro Forma Financial Statements.
(d) Neither the Company nor any director or officer long-term debt of the Company or any of its Subsidiaries nor(other than as described in the Company Form 10-Q (without giving effect to any supplements or amendments thereto after the execution and delivery of this Agreement)) or any adverse change, to or any development involving a prospective adverse change, in or affecting the knowledge condition (financial or otherwise), results of the Companyoperations, any independent auditor stockholders’ equity, properties, management, business or prospects of the Company or and its Subsidiaries, has identified taken as a whole, in each case except as could not, individually or been made aware of (i) any significant deficiency or material weakness in the system of internal accounting controls utilized by the Company or any of its Subsidiariesaggregate, (ii) any fraud, whether or not material, that involves the Company’s management or other employees who reasonably be expected to have a role in the preparation of financial statements or the internal accounting controls utilized by the Company or any of its Subsidiaries or (iii) any claim or allegation regarding any of the foregoingMaterial Adverse Effect.
(ed) The Except as set forth in Section 3.5(d) of the Disclosure Schedule, the Company maintains a system of internal controls over financial reporting (as such term is defined in Rule 13a-15(f) of the Exchange Act) that complies with the requirements of the Exchange Act and that has been designed by, or under the supervision of, the Company’s principal executive and principal financial officers, to provide assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with GAAP. Except as set forth in Section 3.5(d) of the Disclosure Schedule, the Company maintains internal accounting controls which the Company reasonably believes is sufficient to provide reasonable assurance that (i) transactions are executed in accordance with management’s general or specific authorizationsauthorization, (ii) transactions are recorded as necessary to permit preparation of the Company’s financial statements in conformity with IFRS GAAP and to maintain asset accountabilityaccountability for its assets, (iii) access to the Company’s assets is permitted only in accordance with management’s general or specific authorization authorization, and (iv) the recorded accountability for the Company’s assets is compared with the existing assets at reasonable intervals and appropriate action is taken with respect to any differences. The books and records As of the date of the most recent balance sheet of the Company have beenand its consolidated Subsidiaries reviewed or audited by EKS&H LLP and the audit committee of the board of directors of the Company, and are being, maintained there were no material weaknesses in all material respects in accordance with IFRS and any other applicable legal and accounting requirementsthe Company’s internal controls.
(fe) Except as set forth on in Section 4.8(f3.5(e) of the Company Disclosure LetterSchedule, there are no outstanding loans or other extensions since the date of credit made by the most recent balance sheet of the Company and its consolidated Subsidiaries reviewed or its Subsidiaries to audited by EKS&H LLP and the audit committee of the board of directors of the Company, (i) the Company has not been advised of or become aware of (x) any significant deficiencies in the design or operation of their respective executive officers (as defined in Rule 3b-7 under internal controls, that could adversely affect the Exchange Act) or any director ability of the Company or any of its Subsidiaries to record, process, summarize and report financial data, or any material weaknesses in internal controls, and (y) any fraud, whether or not material, that involves management or other employees who have a significant role in the internal controls of the Company and each of its Subsidiaries; and (ii) there have been no significant changes in internal controls or in other factors that could significantly affect internal controls, including any corrective actions with regard to significant deficiencies and material weaknesses.
Appears in 1 contract
Sources: Restructuring and Exchange Agreement (Xtant Medical Holdings, Inc.)
Financial Statements; Internal Controls. (a) The Company has previously provided Attached to Acquiror true and complete copies Section 4.5(a) of the Seller Disclosure Schedule are the audited consolidated statement combined balance sheets of financial position the Business (without giving effect to the Reorganization) as of June 30, 2004 and consolidated June 30, 2005 and audited statements of comprehensive incomecombined earnings, changes in group equity and cash flows of the Company and its Subsidiaries as of and flows, for the fiscal years ended December 31June 30, 2023 2003, June 30, 2004 and December 31June 30, 20222005 (in each case, without giving effect to the Reorganization), together with all related notes and schedules thereto, accompanied by the auditor’s reports thereon, which comply in all material respects with the applicable accounting requirements audit report of Deloitte & Touche LLP (including the standards of the PCAOB) and with the rules and regulations of the SEC, the Exchange Act and the Securities Act applicable to a registrant (the “Audited Financial Statements” and the Audited Financial Statements together with the H1 Financial Statements to be delivered pursuant to this Agreementcollectively, the “Company Financial Statements”).
(b) Except as set forth on Section 4.8(b) of the . The Company Disclosure Letter, the Financial Statements (i) fairly present in all material respects the consolidated combined financial position of the Company and its consolidated Subsidiaries, as at Business (without giving effect to the respective dates thereof, and the consolidated results of their operations, their consolidated incomes, their consolidated changes in equity and their consolidated cash flows for the respective periods then ended (except as may be indicated in the notes thereto and subject, in the case of the H1 Financial Statements, to normal year-end adjustment and the absence of footnotes), (iiReorganization) were prepared in conformity with IFRS applied on a consistent basis during the periods involved (subject, in the case of the H1 Financial Statements, to normal year-end adjustment and the absence of footnotes), (iii) were prepared from, and are in accordance in all material respects with, the books and records of the Company and its consolidated Subsidiaries, (iv) in the case of the Audited Financial Statements, were prepared in compliance in all material respects with the applicable accounting requirements (including the standards of the PCAOB) and with the rules and regulations of the SEC, the Exchange Act and the Securities Act applicable to a registrant, in effect as of the respective dates thereof, and (v) in the case combined results of the H1 Financial Statementsoperations of the Business (without giving effect to the Reorganization) for the respective fiscal periods covered thereby, when delivered by the Company for inclusion in the Proxy/Registration Statement for filing with the SEC following the date of this Agreement each case in accordance with GAAP consistently applied during the periods involved, except as indicated in any notes thereto.
(b) Attached to Section 7.34.5(b) of the Seller Disclosure Schedule is the unaudited combined balance sheet of the Business (without giving effect to the Reorganization) as of December 31, will comply 2005 and unaudited statements of combined earnings, group equity and cash flows, for the quarterly period ended December 31, 2005 (without giving effect to the Reorganization) (collectively, the “Unaudited Financial Statements”). The Unaudited Financial Statements fairly present in all material respects with the applicable accounting requirements (including the standards combined financial position of the PCAOBBusiness (without giving effect to the Reorganization) and with the rules and regulations of the SEC, the Exchange Act and the Securities Act applicable to a registrant, in effect as of the respective dates date thereof, and the combined results of the operations of the Business (without giving effect to the Reorganization) for the fiscal period covered thereby, and have been prepared in accordance with GAAP, consistently applied during the periods involved, in a manner consistent with Parent’s accounting policies and procedures described in Parent’s Annual Report on Form 10-K, filed August 31, 2005, by Parent with the Securities and Exchange Commission and its Quarterly Report on Form 10-Q, filed November 7, 2005, by Parent with the Securities and Exchange Commission (“Parent’s Accounting Policies”).
(c) The Pro Forma Financial Statements willTo the Knowledge of Parent, when providedno significant deficiencies or material weaknesses exist in the design or operation of (i) disclosure controls and procedures (as defined in Rule 13a-15(e) of the Exchange Act) to ensure that material information relating to the Companies, present fairly in all material respects the information shown therein, comply in all material respects with the applicable accounting requirements (including the standards of the PCAOB) and with the rules and regulations of the SECSubsidiaries, the Exchange Act and the Securities Act applicable thereto, in effect as of the respective dates thereof, and will have been compiled on a basis consistent with that of the Audited Financial Statements. The assumptions, information and data used in the preparation of such Pro Forma Financial Statements are reasonably believed by the Company to be reasonable in light of current conditions and facts is made known to the Companymanagement of the Companies by others within those entities, or (ii) internal controls over financial reporting (as defined in Rule 13a-15(f) of the pro forma adjustments used therein will be appropriate Exchange Act), that would materially adversely affect the Companies’ ability to give effect to the transactions or circumstances described thereinrecord, process, summarize and the pro forma adjustments will have been properly applied to the historical amounts used in the preparation of such Pro Forma Financial Statementsreport financial data.
(d) Neither the Company nor any director or officer As of the Company or any of its Subsidiaries nordate hereof, to the knowledge none of the CompanyCompanies or Subsidiaries has any outstanding Indebtedness, any independent auditor of the Company other than Indebtedness that will be discharged, terminated or its Subsidiaries, has identified or been made aware of (i) any significant deficiency or material weakness in the system of internal accounting controls utilized by the Company or any of its Subsidiaries, (ii) 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 or any of its Subsidiaries or (iii) any claim or allegation regarding any of the foregoingcancelled pursuant to Section 6.12.
(e) The Company maintains a system of internal accounting controls which the Company reasonably believes is sufficient to provide reasonable assurance that (i) transactions are executed in accordance with management’s general or specific authorizationsCompanies and Subsidiaries have not made, (ii) transactions are recorded and as necessary to permit preparation of financial statements in conformity with IFRS 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. The books and records of the Company Closing Date will not have beenmade, and are being, maintained in all material respects in accordance with IFRS and any other dividends or distributions that reduce the distributable reserves (or equivalent items under local applicable legal and accounting requirements.
(f) Except as set forth on Section 4.8(fLaw) of the Company Disclosure Letter, there are no outstanding loans or other extensions of credit made by the any Company or its Subsidiaries Subsidiary to any a negative amount or in violation of their respective executive officers (as defined in Rule 3b-7 under the Exchange Act) or any director of the Company or its Subsidiariesapplicable Law.
Appears in 1 contract
Financial Statements; Internal Controls. (ai) The Company Seller has previously provided delivered to Acquiror Purchaser true and complete copies of (A) its balance sheets as of December 31, 2011, 2012 and 2013 and the audited consolidated statement of financial position and consolidated related statements of comprehensive incomeoperations, changes in stockholders’ equity and cash flows of the Company and its Subsidiaries as of and for the fiscal years ended then ended, including the footnotes thereto, if any, additional or supplemental information supplied therewith and the report prepared in connection therewith by the independent certified public accountants auditing such financial statements; and (B) its interim unaudited monthly financial reports and financial statements for the period beginning after December 31, 2023 2013 and December 31ended on June 30, 2022, together with the auditor’s reports thereon, which comply 2014. The documents described in all material respects with the applicable accounting requirements clauses (including the standards of the PCAOBA) and with the rules and regulations of the SEC, the Exchange Act and the Securities Act applicable to a registrant (the “Audited Financial Statements” and the Audited Financial Statements together with the H1 Financial Statements to be delivered pursuant to this AgreementB) above (collectively, the “Seller Financial Statements”).):
(b1) Except as set forth on Section 4.8(bare true, complete and correct;
2) are in accordance with the books and records of the Company Disclosure Letter, the Financial Statements (iSeller;
3) present fairly present and accurately in all material respects the consolidated assets, liabilities, revenues, expenses and financial position condition of Seller as of the Company and its consolidated Subsidiaries, as at the respective dates thereof, and the consolidated results of their operations, their consolidated incomes, their consolidated changes in equity and their consolidated cash flows operations for the respective periods then ended ended;
4) were prepared on a consistent basis throughout the periods involved (except as may be noted therein and except as indicated in the notes thereto and subject, in the case of the H1 Financial Statements, unaudited statements to normal year-end adjustment recurring audit adjustments and the absence of footnotes), ; and
5) have been prepared in accordance with GAAP.
(ii) were prepared in conformity with IFRS applied on a consistent basis during the periods involved (subject, in the case of the H1 Financial Statements, to normal year-end adjustment and the absence of footnotes), (iii) were prepared from, and are in accordance in all material respects with, the books and records of the Company and its consolidated Subsidiaries, (iv) in the case of the Audited Financial Statements, were prepared in compliance in all material respects with the applicable accounting requirements (including the standards of the PCAOB) and with the rules and regulations of the SEC, the Exchange Act and the Securities Act applicable to a registrant, in effect as of the respective dates thereof, and (v) in the case of the H1 Financial Statements, when delivered by the Company for inclusion in the Proxy/Registration Statement for filing with the SEC following the date of this Agreement in accordance with Section 7.3, will comply in all material respects with the applicable accounting requirements (including the standards of the PCAOB) and with the rules and regulations of the SEC, the Exchange Act and the Securities Act applicable to a registrant, in effect as of the respective dates thereof.
(c) The Pro Forma Financial Statements will, when provided, present fairly in all material respects the information shown therein, comply in all material respects with the applicable accounting requirements (including the standards of the PCAOB) and with the rules and regulations of the SEC, the Exchange Act and the Securities Act applicable thereto, in effect as of the respective dates thereof, and will have been compiled on a basis consistent with that of the Audited Financial Statements. The assumptions, information and data used in the preparation of such Pro Forma Financial Statements are reasonably believed by the Company to be reasonable in light of current conditions and facts known to the Company, the pro forma adjustments used therein will be appropriate to give effect to the transactions or circumstances described therein, and the pro forma adjustments will have been properly applied to the historical amounts used in the preparation of such Pro Forma Financial Statements.
(d) Neither the Company Seller nor any director or officer of the Company or any of its Subsidiaries norhas any material liability (whether absolute, accrued, contingent or otherwise and whether due or to become due), except for those liabilities that are reflected on or reserved against the knowledge consolidated balance sheet of Seller for the Companyfiscal quarter ended June 30, 2014 (including any independent auditor notes thereto) and for liabilities incurred in the ordinary course of business consistent with past practice since June 30, 2014 or in connection with this Agreement and the Company transactions contemplated hereby.
(iii) The records, systems, controls, data and information of Seller and its Subsidiaries are recorded, stored, maintained and operated under means (including any electronic, mechanical or photographic process, whether computerized or not) that are under the exclusive ownership and direct control of Seller or its SubsidiariesSubsidiaries or accountants (including all means of access thereto and therefrom), has identified or been made aware of (i) except for any significant deficiency or material weakness in non-exclusive ownership and non-direct control that would not reasonably be expected to have a Material Adverse Effect on the system of internal accounting controls utilized by the Company or any of described below in this Section 5.02(g)(iii). Seller (A) has implemented and maintains disclosure controls and procedures to ensure that material information relating to Seller, including its consolidated Subsidiaries, is made known to the chief executive officer and the chief financial officer of Seller by others within those entities, and (iiB) has disclosed, based on its most recent evaluation prior to the date hereof, to Seller’s outside auditors and the audit committee of Seller’s Board of Directors (y) any significant deficiencies and material weaknesses in the design or operation of internal controls over financial reporting that are reasonably likely to adversely affect Seller’s ability to record, process, summarize and report financial information and (z) any fraud, whether or not material, that involves the Company’s management or other employees who have a significant role in Seller’s internal controls over financial reporting. These disclosures were made in writing by management to Seller’s auditors and audit committee and a copy has previously been made available to Purchaser.
(iv) Since December 31, 2013, (A) through the preparation date hereof, neither Seller nor any of financial statements its Subsidiaries nor, to Seller’s knowledge, any director, officer, employee, auditor, accountant or representative of Seller 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 internal accounting controls utilized by the Company or auditing practices, procedures, methodologies or methods of Seller or any of its Subsidiaries or (iii) their respective internal accounting controls, including any material complaint, allegation, assertion or claim that Seller or allegation regarding any of the foregoing.
(e) The Company maintains a system of internal its Subsidiaries has engaged in questionable accounting controls which the Company reasonably believes is sufficient to provide reasonable assurance that (i) transactions are executed in accordance with management’s general or specific authorizationsauditing practices, (ii) transactions are recorded as necessary to permit preparation of financial statements in conformity with IFRS and to maintain asset accountability, (iii) access to assets is permitted only in accordance with management’s general or specific authorization and (ivB) the recorded accountability for assets is compared with the existing assets at reasonable intervals and appropriate action is taken with respect to no attorney representing Seller or any differences. The books and records of the Company have beenits Subsidiaries, and are beingwhether or not employed by Seller or any of its Subsidiaries, maintained in all has reported evidence of a material respects in accordance with IFRS and violation of securities laws, breach of fiduciary duty or similar violation by Seller or any other applicable legal and accounting requirements.
(f) Except as set forth on Section 4.8(f) of the Company Disclosure Letter, there are no outstanding loans or other extensions of credit made by the Company or its Subsidiaries to or any of their respective executive officers (as defined in Rule 3b-7 under officers, directors, employees or agents to the Exchange Act) Board of Directors of Seller or any committee thereof or to any director or officer of the Company or its SubsidiariesSeller.
Appears in 1 contract
Sources: Merger Agreement (S&t Bancorp Inc)
Financial Statements; Internal Controls. (a) The Company has previously provided to Acquiror true Attached as Section 5.8(a) of the SIM Disclosure Letter are true, correct and complete copies of (i) the audited consolidated statement balance sheets of financial position the SIM Group as of December 31, 2017 and December 31, 2016 and the audited consolidated statements of operations and comprehensive incomeloss, changes in stockholders’ equity (deficit) and cash flows of the Company and its Subsidiaries as of and SIM Group for the years ended December 31, 2023 2017, December 31, 2016 and December 31, 20222015 (collectively, the “SIM Audited Financial Statements”), and (ii) the draft unaudited consolidated balance sheets and statements of operations and comprehensive loss, stockholders’ equity and cash flows of the SIM Group as of and for the quarter ended June 30, 2018 (the “SIM Unaudited Financial Statements” and, together with the auditor’s reports thereon, which comply in all material respects with the applicable accounting requirements (including the standards of the PCAOB) and with the rules and regulations of the SEC, the Exchange Act and the Securities Act applicable to a registrant (the “SIM Audited Financial Statements” and the Audited Financial Statements together with the H1 Financial Statements to be delivered pursuant to this Agreement, the “SIM Financial Statements”).
(b) Except as set forth on in Section 4.8(b5.8(b) of the Company SIM Disclosure Letter, the SIM Financial Statements (i) fairly present in all material respects the consolidated financial position of the Company and its consolidated SubsidiariesSIM Group, as at the respective dates thereof, and the consolidated results of their operations, their consolidated incomesincome, their consolidated changes in stockholders’ equity (deficit) and their consolidated cash flows for the respective periods then ended (except as may be indicated in the notes thereto and subject, in the case of the H1 SIM Unaudited Financial Statements, to the absence of normal year-end adjustment audit adjustments (none of which is expected to be material) and the absence of footnotes), (ii) were prepared in conformity with IFRS applied on a consistent basis during the periods involved (except, in the case of the SIM Audited Financial Statements, as may be indicated in the notes thereto and subject, in the case of the H1 SIM Unaudited Financial Statements, to the absence of footnotes and normal year-end adjustment and the absence audit adjustments (none of footnoteswhich is expected to be material)), (iii) in the case of the SIM Audited Financial Statements, were audited in accordance with IFRS, (iv) were prepared from, and are in accordance in all material respects with, the books Books and records Records of the Company SIM Group and its consolidated Subsidiaries, (ivv) when delivered by SIM for inclusion in the case Registration Statement for filing with the SEC following the date of the Audited Financial Statementsthis Agreement in accordance with Section 8.7, were prepared in compliance will comply in all material respects with the applicable accounting requirements (including the standards of the PCAOB) and with the rules and regulations of the SEC, the Exchange Act and the Securities Act applicable to a registrant, in effect as of the respective dates thereof, and (v) in the case of the H1 Financial Statements, when delivered by the Company for inclusion in the Proxy/Registration Statement for filing with the SEC following the date of this Agreement in accordance with Section 7.3, will comply in all material respects with the applicable accounting requirements (including the standards of the PCAOB) and with the rules and regulations of the SEC, the Exchange Act and the Securities Act applicable to a registrant, in effect as of the respective dates thereof.
(c) The Pro Forma SIM Group maintains and, for all periods covered by the SIM Financial Statements willStatements, when provided, present has maintained (i) Books and Records of the SIM Group in the ordinary course of business that accurately and fairly reflect the transactions and dispositions of the assets of the SIM Group in all material respects the information shown therein, comply in all material respects with the applicable accounting requirements (including the standards of the PCAOB) and with the rules and regulations of the SEC, the Exchange Act and the Securities Act applicable thereto, in effect as of the respective dates thereof, and will have been compiled on a basis consistent with that of the Audited Financial Statements. The assumptions, information and data used in the preparation of such Pro Forma Financial Statements are reasonably believed by the Company to be reasonable in light of current conditions and facts known to the Company, the pro forma adjustments used therein will be appropriate to give effect to the transactions or circumstances described therein, and the pro forma adjustments will have been properly applied to the historical amounts used in the preparation of such Pro Forma Financial Statements.
(d) Neither the Company nor any director or officer of the Company or any of its Subsidiaries nor, to the knowledge of the Company, any independent auditor of the Company or its Subsidiaries, has identified or been made aware of (i) any significant deficiency or material weakness in the system of internal accounting controls utilized by the Company or any of its Subsidiaries, (ii) 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 or any of its Subsidiaries or (iii) any claim or allegation regarding any of the foregoing.
(e) The Company maintains a system of internal accounting controls which the Company reasonably believes is sufficient to provide provide, in all material respects, reasonable assurance assurances (w) that (i) transactions transactions, receipts and expenditures of the SIM Group are being executed and made only in accordance with management’s general or specific authorizationsappropriate authorizations of management of SIM, (iix) that transactions are recorded as necessary to permit preparation of financial statements in conformity with IFRS and to maintain asset accountabilityaccountability for assets, (iiiy) access to regarding prevention or timely detection of unauthorized acquisition, use or disposition of the assets is permitted only in accordance with management’s general or specific authorization of the SIM Group and (ivz) the that accounts, notes and other receivables and Inventory are recorded accountability for assets is compared with the existing assets at reasonable intervals and appropriate action is taken with respect to any differencesaccurately. The books and records Since January 1, 2015, no member of the Company SIM Group has received from its independent auditors any written notification of any (x) “significant deficiency” in the internal controls over financial reporting of the SIM Group, (y) “material weakness” in the internal controls over financial reporting of the SIM Group or (z) fraud, whether or not material, that involves management or other employees of the SIM Group who have been, and are being, maintained a significant role in all material respects in accordance with IFRS and any other applicable legal and accounting requirementsthe internal controls over financial reporting of the SIM Group.
(fd) Except as set forth on in Section 4.8(f5.8(d) of the Company SIM Disclosure Letter, there are no outstanding loans or other extensions member of credit made by the Company or its Subsidiaries SIM Group is a party to any of their respective executive officers “off-balance sheet arrangement” (as defined in Rule 3b-7 under Item 303(a) of Regulation S-K promulgated by the Exchange Act) or any director of the Company or its SubsidiariesSEC).
Appears in 1 contract
Sources: Business Combination Agreement (Saban Capital Acquisition Corp.)
Financial Statements; Internal Controls. (a) The Company Seller has previously provided made available to Acquiror true and complete each Purchaser copies of of:
(i) the audited consolidated statement of financial position statements and unaudited consolidated interim financial statements of comprehensive income, changes Seller included in equity the Seller SEC Documents and cash flows of the Company such statements are complete and its Subsidiaries as of and for the years ended December 31, 2023 and December 31, 2022, together with the auditor’s reports thereon, which comply correct in all material respects respects, have been prepared in accordance with the applicable accounting requirements (including the standards of the PCAOB) GAAP consistently applied, and with the rules and regulations of the SEC, the Exchange Act and the Securities Act applicable to a registrant (the “Audited Financial Statements” and the Audited Financial Statements together with the H1 Financial Statements to be delivered pursuant to this Agreement, the “Financial Statements”).
(b) Except as set forth on Section 4.8(b) of the Company Disclosure Letter, the Financial Statements (i) fairly present in all material respects the consolidated financial position of the Company and its consolidated Subsidiaries, as at the respective dates thereof, and the consolidated results of their operations, their consolidated incomes, their consolidated changes in equity and their consolidated cash flows for the respective periods then ended (except as may be indicated in the notes thereto thereto) the consolidated financial position of Seller and subject, in the case its consolidated Subsidiaries as of the H1 Financial Statements, dates thereof and their consolidated results of operations and cash flows for the periods then ended (except with respect to the unaudited interim financial statements for normal recurring year-end adjustment and adjustments that, individually or in the absence of footnotesaggregate, would not be material), ;
(ii) were the Seller Financial Statements and the Indian Subsidiary Financial Statements and such statements are complete and correct in all material respects, have been prepared in conformity accordance with IFRS GAAP consistently applied on a consistent basis during (or with respect to the Indian Subsidiary for the audited balance sheet and statement of income of the Indian Subsidiary and the footnotes thereto for the fiscal year ended March 31, 2008, in accordance with India statutory audit requirements and generally accepted accounting principles in India), and fairly present (except as may be indicated in the notes thereto) the consolidated financial position of the Sale Business as of the dates thereof and the consolidated results of operations for the periods involved then ended (subject, in except with respect to the case of the H1 Financial Statements, to unaudited interim financial statements for normal recurring year-end adjustment and adjustments that, individually or in the absence of footnotesaggregate, would not be material), ;
(iii) were the Seller Balance Sheet, which is complete and correct in all material respects, has been prepared fromin good faith and fairly presents (except as may be indicated in the notes thereto) the consolidated financial position of the Sale Business as of the date thereof; and
(iv) the Seller Income Statement, which is complete and are correct in accordance all material respects, has been prepared in good faith and fairly presents (except as may be indicated in the notes thereto) the consolidated results of operation of the Sale Business for the period then ended (with a good faith estimate and allocation of the costs and expenses of Seller related to the Sale Business during such period).
(b) Seller and its Subsidiaries make and keep books, records and accounts which, in reasonable detail, accurately and fairly reflect the transactions and dispositions of their respective assets. The Seller’s system of internal controls over financial reporting is sufficient in all material respects with, the books and records of the Company and its consolidated Subsidiaries, (iv) in the case of the Audited Financial Statements, were prepared in compliance in all material respects with the applicable accounting requirements (including the standards of the PCAOB) and with the rules and regulations of the SEC, the Exchange Act and the Securities Act applicable to a registrant, in effect as of the respective dates thereof, and (v) in the case of the H1 Financial Statements, when delivered by the Company for inclusion in the Proxy/Registration Statement for filing with the SEC following the date of this Agreement in accordance with Section 7.3, will comply in all material respects with the applicable accounting requirements (including the standards of the PCAOB) and with the rules and regulations of the SEC, the Exchange Act and the Securities Act applicable to a registrant, in effect as of the respective dates thereof.
(c) The Pro Forma Financial Statements will, when provided, present fairly in all material respects the information shown therein, comply in all material respects with the applicable accounting requirements (including the standards of the PCAOB) and with the rules and regulations of the SEC, the Exchange Act and the Securities Act applicable thereto, in effect as of the respective dates thereof, and will have been compiled on a basis consistent with that of the Audited Financial Statements. The assumptions, information and data used in the preparation of such Pro Forma Financial Statements are reasonably believed by the Company to be reasonable in light of current conditions and facts known to the Company, the pro forma adjustments used therein will be appropriate to give effect to the transactions or circumstances described therein, and the pro forma adjustments will have been properly applied to the historical amounts used in the preparation of such Pro Forma Financial Statements.
(d) Neither the Company nor any director or officer of the Company or any of its Subsidiaries nor, to the knowledge of the Company, any independent auditor of the Company or its Subsidiaries, has identified or been made aware of (i) any significant deficiency or material weakness in the system of internal accounting controls utilized by the Company or any of its Subsidiaries, (ii) 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 or any of its Subsidiaries or (iii) any claim or allegation regarding any of the foregoing.
(e) The Company maintains a system of internal accounting controls which the Company reasonably believes is sufficient to provide reasonable assurance that (i) transactions are executed in accordance with management’s general or specific authorizations, (ii) that transactions are recorded as necessary to permit preparation of financial statements in conformity with IFRS GAAP and to maintain asset accountabilityaccountability for assets, (ii) that receipts and expenditures are executed in accordance with the authorization of management, (iii) that access to assets is permitted only in accordance with management’s general or specific authorization and (iv) regarding prevention or timely detection of the recorded accountability unauthorized acquisition, use or disposition of the assets of Seller or any Subsidiary that would materially affect Seller’s financial statements. No significant deficiency or material weakness was identified in management’s assessment of internal controls as of March 31, 2008 or in any such assessment conducted since March 31, 2008.
(c) The financial projections and business plan provided by Seller to each Purchaser prior to the date hereof was reasonably prepared on a basis reflecting the management’s best estimates, assumptions and judgments, at the time provided to such Purchaser, as to the future financial performance of the Sale Business.
(d) Seller’s “disclosure controls and procedures” (as defined in Rules 13a-15(e) and 15d-15(e) under the ▇▇▇▇ ▇▇▇) are reasonably designed to ensure that (i) all information (both financial and non-financial) required to be disclosed by Seller in the reports that it files or submits under the 1934 Act is recorded, processed, summarized and reported to the individuals responsible for assets preparing such reports within the time periods specified in the rules and forms of the SEC and (ii) all such information is compared accumulated and communicated to Seller’s management as appropriate to allow timely decisions regarding required disclosure and to make the certifications of the principal executive officer and principal financial officer of Seller required under the 1934 Act with respect to such reports.
(e) The audit committee of the existing assets at reasonable intervals and appropriate action is taken Seller Board includes an Audit Committee Financial Expert, as defined by Item 401(h)(2) of Regulation S-K.
(f) The Seller 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 Seller has promptly disclosed any change in or waiver of Seller’s code of ethics with respect to any differences. The books and records of the Company have beensuch persons, and are being, maintained in all material respects in accordance with IFRS and any other applicable legal and accounting requirements.
(f) Except as set forth on required by Section 4.8(f406(b) of the Company Disclosure Letter▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act. To the Knowledge of Seller, there are have been no outstanding loans or other extensions violations of credit made provisions of Seller’s code of ethics by the Company or its Subsidiaries to any of their respective executive officers (as defined in Rule 3b-7 under the Exchange Act) or any director of the Company or its Subsidiariessuch persons.
Appears in 1 contract
Sources: Asset Purchase Agreement (Universal Electronics Inc)
Financial Statements; Internal Controls. (a) The Company has previously provided to Acquiror true and complete copies Section 2.5 of the Disclosure Schedule contains (i) the audited consolidated statement balance sheets of financial position Seller and the Companies as of December 31, 2006 and 2005, and the audited consolidated statements of comprehensive income, changes in equity income and cash flows of Seller and the Company and its Subsidiaries as of and Companies for the years ended December 31, 2023 2006 and 2005, together with the notes to such financial statements (such balance sheet as of December 31, 2006, is referred to herein as the “Balance Sheet”, and December 31, 20222006 is referred to herein as the “Balance Sheet Date”, together with and the auditor’s reports thereonfinancial statements described in this clause (i) are collectively referred to herein as the “Historical Financial Statements”), which comply and (ii) the unaudited consolidated balance sheet of Seller and the Companies as of September 30, 2007, and the unaudited consolidated statements of income and cash flows of Seller and each Company for the three (3) quarters ended September 30, 2007 (such balance sheet as of September 30, 2007 is referred to herein as the “Interim Balance Sheet”, September 30, 2007 is referred to herein as the “Interim Balance Sheet Date”, the financial statements described in this clause (ii) are collectively referred to herein as the “Interim Financial Statements”, and all material respects with the applicable accounting requirements (including the standards of the PCAOB) and with the rules and regulations of the SEC, the Exchange Act and the Securities Act applicable financial statements described in this sentence are collectively referred to a registrant (the “Audited Financial Statements” and the Audited Financial Statements together with the H1 Financial Statements to be delivered pursuant to this Agreement, herein as the “Financial Statements”).
. Each balance sheet (bincluding any related notes) Except as set forth on Section 4.8(b) of the Company Disclosure Letter, included in the Financial Statements (i) presents fairly present in all material respects the consolidated financial position of the Company and its consolidated Subsidiaries, Companies as at of the respective dates date thereof, and each income statement (including any related notes) and cash flow statement included in the consolidated Financial Statements presents fairly in all material respects the results of their operationsoperations and cash flow, their consolidated incomesrespectively, their consolidated changes in equity and their consolidated cash flows of Companies for the respective periods then ended (except as may be indicated in the notes thereto and period set forth therein, subject, in the case of the H1 Interim Financial Statements, to normal year-end adjustment adjustments (which adjustments will not be, individually or in the aggregate, material) and the absence lack of footnotes), (ii) were footnotes and other presentation items. Each of the Financial Statements has been prepared in conformity accordance with IFRS applied on a consistent basis during the periods involved (subject, in the case Historical Policies. Each of the H1 Historical Financial StatementsStatements has been audited by the Companies’ independent public accountants. The books, to normal year-end adjustment records and the absence accounts of footnotes), (iii) were prepared from, each Company are correct and are in accordance complete in all material respects withrespects, the books represent actual, bona fide transactions and records of the Company and its consolidated Subsidiaries, (iv) in the case of the Audited Financial Statements, were prepared in compliance in all material respects with the applicable accounting requirements (including the standards of the PCAOB) and with the rules and regulations of the SEC, the Exchange Act and the Securities Act applicable to a registrant, in effect as of the respective dates thereof, and (v) in the case of the H1 Financial Statements, when delivered by the Company for inclusion in the Proxy/Registration Statement for filing with the SEC following the date of this Agreement have been maintained in accordance with Section 7.3, will comply in all material respects with the applicable sound business and accounting requirements (including the standards of the PCAOB) and with the rules and regulations of the SEC, the Exchange Act and the Securities Act applicable to a registrant, in effect as of the respective dates thereofpractices.
(cb) The Pro Forma Financial Statements will, when provided, present fairly in all material respects the information shown therein, comply in all material respects with the applicable accounting requirements (including the standards of the PCAOB) and with the rules and regulations of the SEC, the Exchange Act and the Securities Act applicable thereto, in effect as of the respective dates thereof, and will have been compiled on a basis consistent with that of the Audited Financial Statements. The assumptions, information and data used in the preparation of such Pro Forma Financial Statements are reasonably believed by the Company to be reasonable in light of current conditions and facts known to the Company, the pro forma adjustments used therein will be appropriate to give effect to the transactions or circumstances described therein, and the pro forma adjustments will have been properly applied to the historical amounts used in the preparation of such Pro Forma Financial Statements.
(d) Neither the Company nor any director or officer of the Company or any of its Subsidiaries nor, to the knowledge of the Company, any independent auditor of the Company or its Subsidiaries, has identified or been made aware of (i) any significant deficiency or material weakness in the system of internal accounting controls utilized by the Company or any of its Subsidiaries, (ii) 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 or any of its Subsidiaries or (iii) any claim or allegation regarding any of the foregoing.
(e) The Each Company maintains a system of internal accounting controls which the Company reasonably believes is sufficient to provide reasonable assurance that 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 IFRS GAAP and to maintain asset accountability, accountability for assets; and (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. The books and records of the Company have been, and are being, maintained in all material respects in accordance with IFRS and any other applicable legal and accounting requirementsauthorization.
(f) Except as set forth on Section 4.8(f) of the Company Disclosure Letter, there are no outstanding loans or other extensions of credit made by the Company or its Subsidiaries to any of their respective executive officers (as defined in Rule 3b-7 under the Exchange Act) or any director of the Company or its Subsidiaries.
Appears in 1 contract
Sources: Stock Purchase Agreement (Aar Corp)
Financial Statements; Internal Controls. (ai) The Company Seller has previously provided delivered to Acquiror Purchaser true and complete copies of (A) its balance sheets as of December 31, 2004, 2005 and 2006 and the audited consolidated statement of financial position and consolidated related statements of comprehensive incomeoperations, changes in stockholders' equity and cash flows of the Company and its Subsidiaries as of and for the fiscal years ended then ended, including the footnotes thereto, if any, additional or supplemental information supplied therewith and the report prepared in connection therewith by the independent certified public accountants auditing such financial statements; and (B) its interim monthly financial reports and financial statements for the period beginning after December 31, 2023 2006 and December 31ended on September 30, 20222007. The documents described in clauses (A) and (B) above (collectively, together the "Seller Financial Statements"):
1) are true, complete and correct;
2) are in accordance with the auditor’s reports thereonbooks and records of Seller;
3) present fairly and accurately the assets liabilities, which comply in all material respects with the applicable accounting requirements (including the standards revenues, expenses and financial condition of Seller as of the PCAOB) and with the rules and regulations of the SEC, the Exchange Act and the Securities Act applicable to a registrant (the “Audited Financial Statements” and the Audited Financial Statements together with the H1 Financial Statements to be delivered pursuant to this Agreement, the “Financial Statements”).
(b) Except as set forth on Section 4.8(b) of the Company Disclosure Letter, the Financial Statements (i) fairly present in all material respects the consolidated financial position of the Company and its consolidated Subsidiaries, as at the respective dates thereof, and the consolidated results of their operations, their consolidated incomes, their consolidated changes in equity and their consolidated cash flows operations for the respective periods then ended (except as may be indicated in the notes thereto and subject, in the case of the H1 Financial Statements, to normal year-end adjustment and the absence of footnotes), (iiended;
4) were prepared in conformity with IFRS applied on a consistent basis during throughout the periods involved (subject, in the case of the H1 Financial Statements, to normal year-end adjustment and the absence of footnotes), (iiiinvolved; and
5) were have been prepared from, and are in accordance in all material respects with, the books and records of the Company and its consolidated Subsidiaries, (iv) in the case of the Audited Financial Statements, were prepared in compliance in all material respects with the applicable accounting requirements (including the standards of the PCAOB) and with the rules and regulations of the SEC, the Exchange Act and the Securities Act applicable to a registrant, in effect as of the respective dates thereof, and (v) in the case of the H1 Financial Statements, when delivered by the Company for inclusion in the Proxy/Registration Statement for filing with the SEC following the date of this Agreement in accordance with Section 7.3, will comply in all material respects with the applicable accounting requirements (including the standards of the PCAOB) and with the rules and regulations of the SEC, the Exchange Act and the Securities Act applicable to a registrant, in effect as of the respective dates thereofGAAP.
(c) The Pro Forma Financial Statements will, when provided, present fairly in all material respects the information shown therein, comply in all material respects with the applicable accounting requirements (including the standards of the PCAOB) and with the rules and regulations of the SEC, the Exchange Act and the Securities Act applicable thereto, in effect as of the respective dates thereof, and will have been compiled on a basis consistent with that of the Audited Financial Statements. The assumptions, information and data used in the preparation of such Pro Forma Financial Statements are reasonably believed by the Company to be reasonable in light of current conditions and facts known to the Company, the pro forma adjustments used therein will be appropriate to give effect to the transactions or circumstances described therein, and the pro forma adjustments will have been properly applied to the historical amounts used in the preparation of such Pro Forma Financial Statements.
(dii) Neither the Company Seller nor any director or officer of the Company or any of its Subsidiaries norhas any material liability (whether absolute, accrued, contingent or otherwise and whether due or to become due), except for those liabilities that are reflected or reserved against on the knowledge consolidated balance sheet of Seller included in its Quarterly Report on Form 10-Q for the Companyfiscal quarter ended September 30, 2007 (including any independent auditor notes thereto) and for liabilities incurred in the ordinary course of business consistent with past practice since September 30, 2007 or in connection with this Agreement and the Company transactions contemplated hereby.
(iii) The records, systems, controls, data and information of Seller and its Subsidiaries are recorded, stored, maintained and operated under means (including any electronic, mechanical or photographic process, whether computerized or not) that are under the exclusive ownership and direct control of Seller or its SubsidiariesSubsidiaries or accountants (including all means of access thereto and therefrom), has identified or been made aware of (i) except for any significant deficiency or material weakness in non-exclusive ownership and non-direct control that would not reasonably be expected to have a Material Adverse Effect on the system of internal accounting controls utilized by described below in this Section 5.02(g)(iii). Seller (A) has implemented and maintains disclosure controls and procedures (as defined in Rule 13a-15 promulgated under the Company or any of Exchange Act) to ensure that material information relating to Seller, including its consolidated Subsidiaries, is made known to the chief executive officer and the chief financial officer of Seller by others within those entities, and (iiB) has disclosed, based on its most recent evaluation prior to the date hereof, to Seller's outside auditors and the audit committee of Seller's Board of Directors (y) any significant deficiencies and material weaknesses in the design or operation of internal controls over financial reporting (as defined in Rule 13a-15 promulgated under the Exchange Act) that are reasonably likely to adversely affect Seller's ability to record, process, summarize and report financial information and (z) any fraud, whether or not material, that involves the Company’s management or other employees who have a significant role in Seller's internal controls over financial reporting. These disclosures were made in writing by management to Seller's auditors and audit committee and a copy has previously been made available to Purchaser. As of the preparation date hereof, and except as Previously Disclosed, Seller knows of no reason related to Seller to believe that Seller's outside auditors and its chief executive officer and chief financial statements officer will not be able to give the certifications and attestations required pursuant to Sections 302, 404 and 906 of the Sarbanes-Oxley Act, witho▇▇ ▇▇▇▇▇▇▇▇▇▇ion (except to extent expressly permitted by such rules and regulations), when next due.
(iv) Since December 31, 2006, (A) through the date hereof, neither Seller nor any of its Subsidiaries nor, to Seller's knowledge, any director, officer, employee, auditor, accountant or representative of Seller 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 internal accounting controls utilized by the Company or auditing practices, procedures, methodologies or methods of Seller or any of its Subsidiaries or (iii) their respective internal accounting controls, including any material complaint, allegation, assertion or claim that Seller or allegation regarding any of the foregoing.
(e) The Company maintains a system of internal its Subsidiaries has engaged in questionable accounting controls which the Company reasonably believes is sufficient to provide reasonable assurance that (i) transactions are executed in accordance with management’s general or specific authorizationsauditing practices, (ii) transactions are recorded as necessary to permit preparation of financial statements in conformity with IFRS and to maintain asset accountability, (iii) access to assets is permitted only in accordance with management’s general or specific authorization and (ivB) the recorded accountability for assets is compared with the existing assets at reasonable intervals and appropriate action is taken with respect to no attorney representing Seller or any differences. The books and records of the Company have beenits Subsidiaries, and are beingwhether or not employed by Seller or any of its Subsidiaries, maintained in all has reported evidence of a material respects in accordance with IFRS and violation of securities laws, breach of fiduciary duty or similar violation by Seller or any other applicable legal and accounting requirements.
(f) Except as set forth on Section 4.8(f) of the Company Disclosure Letter, there are no outstanding loans it Subsidiaries or other extensions of credit made by the Company or its Subsidiaries to any of their respective executive officers (as defined in Rule 3b-7 under officers, directors, employees or agents to the Exchange Act) Board of Directors of Seller or any committee thereof or to any director or officer of the Company or its SubsidiariesSeller.
Appears in 1 contract
Sources: Merger Agreement (Ibt Bancorp Inc)
Financial Statements; Internal Controls. (a) The Company has previously provided made available to Acquiror IAC in the Virtual Data Room true and complete copies of the audited consolidated statement balance sheets of financial position the Company as of December 31, 2022, and consolidated as of December 31, 2021, and the related statements of comprehensive incomeoperations, changes stockholders’ deficit and cash flows of the Company for each of the years then ended (collectively, the “Audited Annual Financial Statements”). Each of the Audited Annual Financial Statements (including the notes thereto) (i) was prepared in equity accordance with United States generally accepted accounting principles (“GAAP”) applied on a consistent basis throughout the periods indicated (except as may be indicated in the notes thereto) and in accordance with the requirements of PCAOB for public companies and (ii) fairly presents, in all material respects, the financial position, results of operations and cash flows of the Company and Subsidiaries as of and at the date thereof and for the period indicated therein, except as otherwise noted therein.
(b) Each of the Unaudited Interim Financial Statements (as described in Section 7.13(b)) (including the notes thereto), when delivered in accordance with this Agreement, (i) will be prepared in accordance with GAAP applied on a consistent basis throughout the periods indicated (except for the omission of footnotes and subject to year-end adjustments) and in accordance with the requirements of PCAOB for public companies and (ii) will fairly present, in all material respects, the financial position, results of operations and cash flows of the Company and its Subsidiaries as of and at the date thereof and for the years ended December 31period indicated therein, 2023 and December 31, 2022, together with the auditor’s reports thereon, which comply in all material respects with the applicable accounting requirements (including the standards of the PCAOB) and with the rules and regulations of the SEC, the Exchange Act and the Securities Act applicable to a registrant (the “Audited Financial Statements” and the Audited Financial Statements together with the H1 Financial Statements to be delivered pursuant to this Agreement, the “Financial Statements”).
(b) Except as set forth on Section 4.8(b) of the Company Disclosure Letter, the Financial Statements (i) fairly present in all material respects the consolidated financial position of the Company and its consolidated Subsidiaries, as at the respective dates thereof, and the consolidated results of their operations, their consolidated incomes, their consolidated changes in equity and their consolidated cash flows for the respective periods then ended (except as may be indicated in the notes thereto otherwise noted therein and subject, in the case of the H1 Financial Statements, subject to normal and recurring year-end adjustment and the absence of footnotes), (ii) were prepared in conformity with IFRS applied on a consistent basis during the periods involved (subject, in the case of the H1 Financial Statements, to normal year-end adjustment and the absence of footnotes), (iii) were prepared from, and are in accordance in all material respects with, the books and records of the Company and its consolidated Subsidiaries, (iv) in the case of the Audited Financial Statements, were prepared in compliance in all material respects with the applicable accounting requirements (including the standards of the PCAOB) and with the rules and regulations of the SEC, the Exchange Act and the Securities Act applicable to a registrant, in effect as of the respective dates thereof, and (v) in the case of the H1 Financial Statements, when delivered by the Company for inclusion in the Proxy/Registration Statement for filing with the SEC following the date of this Agreement in accordance with Section 7.3, will comply in all material respects with the applicable accounting requirements (including the standards of the PCAOB) and with the rules and regulations of the SEC, the Exchange Act and the Securities Act applicable to a registrant, in effect as of the respective dates thereofadjustments.
(c) The Pro Forma Except as and to the extent set forth on the Audited Annual Financial Statements willor, when provided, present fairly in all material respects the information shown therein, comply in all material respects with the applicable accounting requirements (including the standards of the PCAOB) and with the rules and regulations of the SECdelivered, the Exchange Act and Unaudited Interim Financial Statements, the Securities Act applicable theretoCompany does not have any liability, in effect as debt or obligation of the respective dates thereofa nature (whether accrued, and will have been compiled absolute, contingent or otherwise), required to be reflected on a basis consistent consolidated balance sheet prepared in accordance with GAAP consistently applied and in accordance with past practice, except for: (i) liabilities that were incurred in the ordinary course of business since the Audited Annual Financial Statements. The assumptionsStatements date, information and data used (ii) liabilities or obligations disclosed in the preparation of Company Disclosure Schedule or (iii) such Pro Forma Financial Statements are other liabilities and obligations which would not, individually or in the aggregate, reasonably believed by the Company expected to be reasonable in light of current conditions and facts known material to the Company, the pro forma adjustments used therein will be appropriate to give effect to the transactions or circumstances described therein, and the pro forma adjustments will have been properly applied to the historical amounts used in the preparation of such Pro Forma Financial Statements.
(d) Neither the Company nor any director or officer . None of the Company or any of its Subsidiaries noris a party to, or has any commitment to become a party to, any contract or arrangement that would constitute an “off balance sheet arrangement” (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 on the Audited Annual Financial Statements or, when delivered, the Unaudited Interim Financial Statements.
(d) Since the Formation Date, (i) none of the Company, any of its Subsidiaries or, to the Company’s knowledge, 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 complaint, allegation, assertion or claim, whether written or, to the knowledge of the Company, oral, regarding the accounting or auditing practices, procedures, methodologies or methods of the Company, its Subsidiaries or their respective internal accounting controls, including any such complaint, allegation, assertion or claim that the Company or any of its Subsidiaries has engaged in questionable accounting or auditing practices and (ii) there have been no internal investigations regarding accounting or revenue recognition discussed with, reviewed by or initiated at the direction of the chief executive officer, chief financial officer, general counsel, the Company Board or any committee thereof.
(e) To the knowledge of the Company, no employee of the Company or any of its Subsidiaries has provided or is providing information to any law enforcement agency regarding the commission or possible commission of any crime or the violation or possible violation of any applicable Law. None of the Company, any of its Subsidiaries or, to the knowledge of the Company, any independent auditor officer, employee, contractor, subcontractor or agent of the Company or any of its Subsidiaries 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 act of such employee described in 18 U.S.C. sec. 1514A(a).
(f) All accounts receivable of the Company or any of its Subsidiaries reflected on the Audited Annual Financial Statements or arising thereafter have arisen from bona fide transactions in the ordinary course of business consistent with past practices and in accordance with GAAP and are collectible, subject to bad debts reserved in the Audited Annual Financial Statement, or reserved in the Unaudited Interim Financial Statements when delivered. To the knowledge of the Company, such accounts receivables are not subject to valid defenses, setoffs or counterclaims, other than routine credits granted for errors in ordering, shipping, pricing, discounts, rebates, returns in the ordinary course of business and other similar matters. The Company’s reserve for contractual allowances and doubtful accounts is adequate in all material respects and has been calculated in a manner consistent with past practices. Since December 31, 2022, none of the Company or any of its Subsidiaries has modified or changed in any material respect its sales practices or methods, including such practices or methods in accordance with which the Company or any of its Subsidiaries sells goods, fills orders or record sales.
(g) All accounts payable of the Company or any of its Subsidiaries reflected on the Audited Annual Financial Statements or arising thereafter are the result of bona fide transactions in the ordinary course of business and have been paid or are not yet due or payable. Since December 31, 2022, none of the Company or any of its Subsidiaries has altered in any material respects its practices for the payment of such accounts payable, including the timing of such payment.
(h) The Company and its Subsidiaries maintain systems of internal control over financial reporting that are sufficient to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with GAAP, including policies and procedures sufficient to provide reasonable assurance: (i) that the Company and its Subsidiaries maintains records that in reasonable detail accurately and fairly reflect, in all material respects, its transactions and dispositions of assets; (ii) that transactions are recorded as necessary to permit the preparation of financial statements in conformity with GAAP; (iii) that receipts and expenditures are being made only in accordance with authorizations of the Company’s management and the Company Board; and (iv) regarding prevention or timely detection of unauthorized acquisition, use or disposition of its assets that could have a material effect on its financial statements. The Company has made available to IAC a true and complete copy of any disclosure (or, if unwritten, a summary thereof) by any representative of the Company or any of its Subsidiaries to the Company’s or any of its Subsidiaries’ respective independent auditors relating to any material weaknesses in internal controls and any significant deficiencies in the design or operation of internal controls that would adversely affect the ability of the Company or any of its Subsidiaries to record, process, summarize and report financial data. The Company has no knowledge of any fraud or whistle-blower allegations, whether or not material, that involve management or other employees or consultants who have or had a significant role in the internal control over financial reporting of the Company or any of its Subsidiaries. Since December 31, 2022, there have been no material changes in the Company’s or any of its Subsidiaries’ respective internal control over financial reporting.
(i) Neither the Company (including any employee thereof) nor the Company’s independent auditors has identified or been made aware of (i) any significant deficiency or material weakness in the system of internal accounting controls utilized by the Company or any of its Subsidiaries, (ii) any fraud, whether or not material, that involves the Company’s or any of its Subsidiaries’ respective management or other employees who have a role in the preparation of financial statements or the internal accounting controls utilized by the Company or any of its Subsidiaries Subsidiaries, or (iii) any claim or allegation regarding any of the foregoing.
(e) The Company maintains a system of internal accounting controls which the Company reasonably believes is 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 IFRS 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. The books and records of the Company have been, and are being, maintained in all material respects in accordance with IFRS and any other applicable legal and accounting requirements.
(f) Except as set forth on Section 4.8(f) of the Company Disclosure Letter, there are no outstanding loans or other extensions of credit made by the Company or its Subsidiaries to any of their respective executive officers (as defined in Rule 3b-7 under the Exchange Act) or any director of the Company or its Subsidiaries.
Appears in 1 contract
Sources: Business Combination Agreement (Insight Acquisition Corp. /DE)
Financial Statements; Internal Controls. (a) The Company has previously provided Made Available to Acquiror true Buyer true, accurate and complete copies of the audited consolidated statement of financial position Company’s (i) audited, combined and consolidated balance sheets as of December 31, 2004, 2005 and 2006 and the related audited statements of comprehensive income, changes in equity and cash flows of the Company and its Subsidiaries as of and shareholders’ equity for the fiscal years ended December 31, 2023 2004, 2005 and December 312006 (including the related notes and independent auditors reports thereon) (the “Annual Financial Statements”) and (ii) the unaudited consolidated balance sheet as of June 30, 20222007 and the related unaudited consolidated statements of income, cash flows and shareholders’ equity for the six months ended June 30, 2007 (the “Unaudited Financial Statements”; and, together with the auditor’s reports thereon, which comply in all material respects with the applicable accounting requirements (including the standards of the PCAOB) and with the rules and regulations of the SEC, the Exchange Act and the Securities Act applicable to a registrant (the “Audited Annual Financial Statements” and the Audited Financial Statements together with the H1 Financial Statements to be delivered pursuant to this Agreement, the “Financial Statements”).
(b) Except as set forth on Section 4.8(b) of ; the Company Disclosure Letter, balance sheet included in the Unaudited Financial Statements (i) fairly present in all material respects referred to herein as the consolidated financial position of the “Company and its consolidated Subsidiaries, as at the respective dates thereofBalance Sheet”, and the consolidated results date of their operationssuch balance sheet, their consolidated incomes, their consolidated changes the “Company Balance Sheet Date”). Each of the foregoing financial statements (including in equity and their consolidated cash flows for the respective periods then ended (except as may be indicated in all cases the notes thereto thereto, if any) is accurate and subjectcomplete, in the case of the H1 Financial Statements, to normal year-end adjustment and the absence of footnotes), (ii) were prepared in conformity is consistent with IFRS applied on a consistent basis during the periods involved (subject, in the case of the H1 Financial Statements, to normal year-end adjustment and the absence of footnotes), (iii) were prepared from, and are in accordance in all material respects with, the books and records of the Company (which, in turn, are accurate and complete), fairly presents the financial condition and operating results of the Company and its consolidated SubsidiariesSubsidiaries and has been prepared in accordance with Dutch GAAP consistently applied throughout the periods covered thereby (or, (iv) with respect to the Annual Financial Statements for 2007 and the Unaudited Financial Statements, IFRS consistently applied throughout the periods covered thereby), subject in the case of the Audited Unaudited Financial StatementsStatements to the absence of footnotes and normal year-end adjustments, were prepared in compliance in all material respects with the applicable accounting requirements (including the standards of the PCAOB) and with the rules and regulations of the SEC, the Exchange Act and the Securities Act applicable which are not expected to a registrant, in effect as of the respective dates thereof, and (v) in the case of the H1 Financial Statements, when delivered by the Company for inclusion in the Proxy/Registration Statement for filing with the SEC following the date of this Agreement in accordance with Section 7.3, will comply in all material respects with the applicable accounting requirements (including the standards of the PCAOB) and with the rules and regulations of the SEC, the Exchange Act and the Securities Act applicable to a registrant, in effect as of the respective dates thereofbe material.
(cb) The Pro Forma Financial Statements will, when provided, present fairly in all material respects the information shown therein, comply in all material respects with the applicable accounting requirements (including the standards of the PCAOB) and with the rules and regulations of the SEC, the Exchange Act and the Securities Act applicable thereto, in effect as of the respective dates thereof, and will have been compiled on a basis consistent with that of the Audited Financial Statements. The assumptions, information and data used in the preparation of such Pro Forma Financial Statements are reasonably believed by the Company to be reasonable in light of current conditions and facts known to the Company, the pro forma adjustments used therein will be appropriate to give effect to the transactions or circumstances described therein, and the pro forma adjustments will have been properly applied to the historical amounts used in the preparation of such Pro Forma Financial Statements.
(d) Neither the Company nor any director or officer of the Company or any of its Subsidiaries nor, to To the knowledge of the Company, any independent auditor of the Company or and its Subsidiaries, has identified or been made aware of (i) any significant deficiency or material weakness in the system of Subsidiaries maintain proper and adequate internal accounting controls utilized by the Company or any of its Subsidiaries, (ii) 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 or any of its Subsidiaries or (iii) any claim or allegation regarding any of the foregoing.
(e) The Company maintains a system of internal accounting controls which the Company reasonably believes is sufficient to provide reasonable assurance that (i) transactions are executed in accordance with management’s general or specific authorizationsauthorization, and (ii) transactions are recorded as necessary to permit preparation of their financial statements in conformity with IFRS 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. The books and records of the Company have been, and are being, maintained in all material respects in accordance with IFRS and any other applicable legal and accounting requirementstheir assets.
(fc) Except as set forth on Section 4.8(f) of As at September 30, 2007, the Company Disclosure Letter, there are no outstanding loans and its consolidated Subsidiaries had cash on the balance sheet in an amount equal to or other extensions of credit made by the Company or its Subsidiaries to any of their respective executive officers (as defined in Rule 3b-7 under the Exchange Act) or any director of the Company or its Subsidiariesgreater than €6,800,000.
Appears in 1 contract
Financial Statements; Internal Controls. (a) The Company has previously provided to Acquiror true and complete copies Attached hereto as Schedule 4.5(a) of the audited consolidated Disclosure Schedules are the following financial statements: (i) the unaudited statement of financial position assets and consolidated statements of comprehensive income, changes in equity and cash flows liabilities of the Company and its Subsidiaries as of September 30, 2019 and the related statement of revenues and expenses of the Company for the years ended nine months then ended, (ii) the unaudited statements of assets and liabilities of the Company as of December 31, 2023 2018 (the “Company’s Reference Balance Sheet”) and as of December 31, 20222017, and the related statement of revenues and expenses of the Company for the fiscal years then ended, (iii) the unaudited statements of revenues and expenses of K Skin as of September 30, 2019 and the related statement of revenues and expenses of K Skin for the nine months then ended (which, together with the auditor’s reports thereonCompany unaudited balance sheet as of September 30, which comply in all material respects with 2019 and the applicable accounting requirements (including related statement of revenues and expenses for the standards of nine months then ended, the PCAOB“Interim Financial Statements”) and with (iv) the rules unaudited statement of revenues and regulations expenses of the SECK Skin as of December 31, the Exchange Act and the Securities Act applicable to a registrant 2018 (the “Audited Financial StatementsK Skin’s Reference Balance Sheet” and the Audited Financial Statements together with the H1 Financial Statements Company’s Reference Balance Sheet, the “Business Group Companies Reference Balance Sheets”), and the related statement of revenues and expenses of K Skin for the fiscal year then ended (the financial statements referred to be delivered pursuant to this Agreementin (i), (ii), (iii), (iv), collectively, the “Financial Statements”). The Financial Statements have been prepared in accordance with the Accounting Principles consistently applied, except for the Interim Financial Statements, which are subject to normal, year-end adjustments to record operating expense on an accrual basis, which are not in the aggregate material. The Financial Statements are consistent with the books of account and other financial records of the Business Group Companies and are accurate and complete in all material respects and fairly present, in all material respects, the financial position of the Business Group Companies as of the dates thereof and for the periods referenced therein.
(b) Except as set forth on Section 4.8(b) of the Company Disclosure LetterThe Business Group Companies maintain, the Financial Statements (i) fairly present books and records reflecting its assets and liabilities that are accurate in all material respects the consolidated financial position of the Company and its consolidated Subsidiaries, as at the respective dates thereof, and the consolidated results of their operations, their consolidated incomes, their consolidated changes in equity and their consolidated cash flows for the respective periods then ended (except as may be indicated in the notes thereto and subject, in the case of the H1 Financial Statements, to normal year-end adjustment and the absence of footnotes), (ii) were prepared in conformity with IFRS applied on a consistent basis during the periods involved (subject, in the case of the H1 Financial Statements, to normal year-end adjustment adequate and the absence of footnotes), (iii) were prepared from, and are in accordance in all material respects with, the books and records of the Company and its consolidated Subsidiaries, (iv) in the case of the Audited Financial Statements, were prepared in compliance in all material respects with the applicable accounting requirements (including the standards of the PCAOB) and with the rules and regulations of the SEC, the Exchange Act and the Securities Act applicable to a registrant, in effect as of the respective dates thereof, and (v) in the case of the H1 Financial Statements, when delivered by the Company for inclusion in the Proxy/Registration Statement for filing with the SEC following the date of this Agreement in accordance with Section 7.3, will comply in all material respects with the applicable accounting requirements (including the standards of the PCAOB) and with the rules and regulations of the SEC, the Exchange Act and the Securities Act applicable to a registrant, in effect as of the respective dates thereof.
(c) The Pro Forma Financial Statements will, when provided, present fairly in all material respects the information shown therein, comply in all material respects with the applicable accounting requirements (including the standards of the PCAOB) and with the rules and regulations of the SEC, the Exchange Act and the Securities Act applicable thereto, in effect as of the respective dates thereof, and will have been compiled on a basis consistent with that of the Audited Financial Statements. The assumptions, information and data used in the preparation of such Pro Forma Financial Statements are reasonably believed by the Company to be reasonable in light of current conditions and facts known to the Company, the pro forma adjustments used therein will be appropriate to give effect to the transactions or circumstances described therein, and the pro forma adjustments will have been properly applied to the historical amounts used in the preparation of such Pro Forma Financial Statements.
(d) Neither the Company nor any director or officer of the Company or any of its Subsidiaries nor, to the knowledge of the Company, any independent auditor of the Company or its Subsidiaries, has identified or been made aware of (i) any significant deficiency or material weakness in the system of internal accounting controls utilized by the Company or any of its Subsidiaries, (ii) 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 or any of its Subsidiaries or (iii) any claim or allegation regarding any of the foregoing.
(e) The Company maintains a system of effective internal accounting controls which the Company reasonably believes is sufficient to provide reasonable assurance that (iA) transactions are executed in accordance with management’s general or specific authorizationsthe control objectives have minimized the risk of material financial misstatement, (iiB) transactions are recorded as necessary all material information concerning the Business Group Companies is made known on a timely basis to permit the individuals responsible for the preparation of financial statements in conformity with IFRS and to maintain asset accountabilitythe Financial Statements, (iiiC) access to the properties and assets of the Business Group Companies is permitted only in accordance with management’s general or specific authorization and (ivD) all transactions are executed with management’s authorization and accurately recorded in the recorded accountability for assets is compared correct period as necessary to permit the preparation of the Financial Statements and disclosures in conformity with the existing assets at reasonable intervals and appropriate action is taken with respect to Accounting Principles. During the past two (2) years, no director or officer of any differences. The books and records of the Company have been, and are being, maintained in all material respects in accordance with IFRS and any other applicable legal and accounting requirements.
(f) Except as set forth on Section 4.8(f) of the Company Disclosure Letter, there are no outstanding loans or other extensions of credit made by the Business Group Company or its Subsidiaries to non-officer employee, external auditor, external accountant or similar authorized Representative of any Business Group Company, has received or otherwise been made aware of their respective executive officers (as defined in Rule 3b-7 under any material complaint, allegation or claim, whether written or oral, regarding the Exchange Act) accounting or auditing practices, procedures, methodologies or methods of any Business Group Company or any director of the Business Group Company’s internal accounting controls, including any material complaint, allegation or claim that any Business Group Company has engaged in questionable accounting or its Subsidiariesauditing practices.
Appears in 1 contract
Sources: Purchase Agreement (Coty Inc.)
Financial Statements; Internal Controls. (ai) The Company Seller has previously provided delivered to Acquiror Purchaser true and complete copies of (A) its balance sheets as of December 31, 2008, 2009 and 2010 and the audited consolidated statement of financial position and consolidated related statements of comprehensive incomeoperations, changes in stockholders’ equity and cash flows of the Company and its Subsidiaries as of and for the fiscal years ended then ended, including the footnotes thereto, if any, additional or supplemental information supplied therewith and the report prepared in connection therewith by the independent certified public accountants auditing such financial statements; and (B) its interim monthly financial reports and financial statements for the period beginning after December 31, 2023 2010 and December 31ended on June 30, 2022, together with the auditor’s reports thereon, which comply 2011. The documents described in all material respects with the applicable accounting requirements clauses (including the standards of the PCAOBA) and with the rules and regulations of the SEC, the Exchange Act and the Securities Act applicable to a registrant (the “Audited Financial Statements” and the Audited Financial Statements together with the H1 Financial Statements to be delivered pursuant to this AgreementB) above (collectively, the “Seller Financial Statements”).):
(b1) Except are true, complete and correct;
2) are in accordance with the books and records of Seller;
3) present fairly and accurately the assets, liabilities, revenues, expenses and financial condition of Seller as set forth on Section 4.8(b) of the Company Disclosure Letter, the Financial Statements (i) fairly present in all material respects the consolidated financial position of the Company and its consolidated Subsidiaries, as at the respective dates thereof, and the consolidated results of their operations, their consolidated incomes, their consolidated changes in equity and their consolidated cash flows operations for the respective periods then ended (except as may be indicated in the notes thereto and subject, in the case of the H1 Financial Statements, to normal year-end adjustment and the absence of footnotes), (iiended;
4) were prepared in conformity with IFRS applied on a consistent basis during throughout the periods involved involved; and
5) have been prepared in accordance with GAAP.
(subjectii) Neither Seller nor any of its Subsidiaries has any material liability (whether absolute, accrued, contingent or otherwise and whether due or to become due), except for those liabilities that are reflected on or reserved against the consolidated balance sheet of Seller for the fiscal quarter ended June 30, 2011 (including any notes thereto) and for liabilities incurred in the case ordinary course of the H1 Financial Statementsbusiness consistent with past practice since June 30, to normal year-end adjustment 2011 or in connection with this Agreement and the absence of footnotes), transactions contemplated hereby.
(iii) were prepared fromThe records, systems, controls, data and are in accordance in all material respects with, the books and records information of the Company Seller and its consolidated SubsidiariesSubsidiaries are recorded, stored, maintained and operated under means (including any electronic, mechanical or photographic process, whether computerized or not) that are under the exclusive ownership and direct control of Seller or its Subsidiaries or accountants (including all means of access thereto and therefrom), except for any non-exclusive ownership and non-direct control that would not reasonably be expected to have a Material Adverse Effect on the system of internal accounting controls described below in this Section 5.02(g)(iii).
(iv) in the case of the Audited Financial StatementsSince December 31, were prepared in compliance in all material respects with the applicable accounting requirements 2010, (including the standards of the PCAOBA) and with the rules and regulations of the SEC, the Exchange Act and the Securities Act applicable to a registrant, in effect as of the respective dates thereof, and (v) in the case of the H1 Financial Statements, when delivered by the Company for inclusion in the Proxy/Registration Statement for filing with the SEC following through the date of this Agreement in accordance with Section 7.3hereof, will comply in all material respects with the applicable accounting requirements (including the standards of the PCAOB) and with the rules and regulations of the SEC, the Exchange Act and the Securities Act applicable to a registrant, in effect as of the respective dates thereof.
(c) The Pro Forma Financial Statements will, when provided, present fairly in all material respects the information shown therein, comply in all material respects with the applicable accounting requirements (including the standards of the PCAOB) and with the rules and regulations of the SEC, the Exchange Act and the Securities Act applicable thereto, in effect as of the respective dates thereof, and will have been compiled on a basis consistent with that of the Audited Financial Statements. The assumptions, information and data used in the preparation of such Pro Forma Financial Statements are reasonably believed by the Company to be reasonable in light of current conditions and facts known to the Company, the pro forma adjustments used therein will be appropriate to give effect to the transactions or circumstances described therein, and the pro forma adjustments will have been properly applied to the historical amounts used in the preparation of such Pro Forma Financial Statements.
(d) Neither the Company neither Seller nor any director or officer of the Company or any of its Subsidiaries nor, to the Seller’s knowledge, any director, officer, employee, auditor, accountant or representative of Seller 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 Companyaccounting or auditing practices, procedures, methodologies or methods of Seller or any independent auditor of the Company its Subsidiaries or its Subsidiaries, has identified or been made aware of (i) any significant deficiency or material weakness in the system of their respective internal accounting controls utilized by the Company controls, including any material complaint, allegation, assertion or claim that Seller or any of its Subsidiaries has engaged in questionable accounting or auditing practices, and (B) no attorney representing Seller or any of its Subsidiaries, (ii) any fraud, whether or not materialemployed by Seller or any of its Subsidiaries, that involves the Company’s management has reported evidence of a material violation of securities laws, breach of fiduciary duty or other employees who have a role in the preparation of financial statements or the internal accounting controls utilized similar violation by the Company Seller or any of its Subsidiaries or (iii) any claim or allegation regarding any of the foregoing.
(e) The Company maintains a system of internal accounting controls which the Company reasonably believes is 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 IFRS 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. The books and records of the Company have been, and are being, maintained in all material respects in accordance with IFRS and any other applicable legal and accounting requirements.
(f) Except as set forth on Section 4.8(f) of the Company Disclosure Letter, there are no outstanding loans or other extensions of credit made by the Company or its Subsidiaries to any of their respective executive officers (as defined in Rule 3b-7 under officers, directors, employees or agents to the Exchange Act) Board of Directors of Seller or any committee thereof or to any director or officer of the Company or its SubsidiariesSeller.
Appears in 1 contract
Sources: Merger Agreement (S&t Bancorp Inc)
Financial Statements; Internal Controls. (ai) The Company Main Street has previously provided delivered to Acquiror BB&T true and complete copies of (A) its balance sheets as of December 31, 2002, 2003 and 2004 and the audited consolidated statement of financial position and consolidated related statements of comprehensive incomeoperations, changes in stockholders’ equity and cash flows of the Company and its Subsidiaries as of and for the fiscal years ended then ended, including the footnotes thereto, if any, additional or supplemental information supplied therewith and the report prepared in connection therewith by the independent certified public accountants auditing such financial statements; and (B) its interim unaudited quarterly financial statements for the quarters beginning after December 31, 2023 2004 and December 31ending on September 30, 2022, together with the auditor’s reports thereon, which comply in all material respects with the applicable accounting requirements 2005 (including the standards of the PCAOB) and with the rules and regulations of the SEC, the Exchange Act and the Securities Act applicable as to a registrant (the “Audited Financial Statements” and the Audited Financial Statements together with the H1 Financial Statements to be delivered pursuant to this Agreementeach, the “Last Report Date”). The documents described in clauses (A) and (B) above (collectively, the “Main Street Financial Statements”).):
(b1) Except are true, complete and correct;
2) are in accordance with the books and records of Main Street;
3) fairly and accurately presents the financial condition of Main Street as set forth on Section 4.8(b) of the Company Disclosure Letter, the Financial Statements (i) fairly present in all material respects the consolidated financial position of the Company and its consolidated Subsidiaries, as at the respective dates thereof, and the consolidated results of their operations, their consolidated incomes, their consolidated changes in equity and their consolidated cash flows operations for the respective periods then ended ended, as applicable (except in each case as may be indicated in the notes thereto noted therein and subject, in the case of unaudited interim financial statements, to the H1 Financial Statements, absence of notes and to normal year-end adjustment and the absence of footnotesadjustments that are not material in amount or in effect), (ii;
4) were prepared in conformity with IFRS applied on a consistent basis during throughout the periods involved involved; and
5) have been prepared in accordance with GAAP (except in each case as may be noted therein and subject, in the case of unaudited interim financial statements, to the H1 Financial Statements, absence of notes and to normal year-end adjustment and the absence of footnotesaudit adjustments that are not material in amount or effect), (iii) were prepared from, and are in accordance in all material respects with, the books and records of the Company and its consolidated Subsidiaries, (iv) in the case of the Audited Financial Statements, were prepared in compliance in all material respects with the applicable accounting requirements (including the standards of the PCAOB) and with the rules and regulations of the SEC, the Exchange Act and the Securities Act applicable to a registrant, in effect as of the respective dates thereof, and (v) in the case of the H1 Financial Statements, when delivered by the Company for inclusion in the Proxy/Registration Statement for filing with the SEC following the date of this Agreement in accordance with Section 7.3, will comply in all material respects with the applicable accounting requirements (including the standards of the PCAOB) and with the rules and regulations of the SEC, the Exchange Act and the Securities Act applicable to a registrant, in effect as of the respective dates thereof.
(c) The Pro Forma Financial Statements will, when provided, present fairly in all material respects the information shown therein, comply in all material respects with the applicable accounting requirements (including the standards of the PCAOB) and with the rules and regulations of the SEC, the Exchange Act and the Securities Act applicable thereto, in effect as of the respective dates thereof, and will have been compiled on a basis consistent with that of the Audited Financial Statements. The assumptions, information and data used in the preparation of such Pro Forma Financial Statements are reasonably believed by the Company to be reasonable in light of current conditions and facts known to the Company, the pro forma adjustments used therein will be appropriate to give effect to the transactions or circumstances described therein, and the pro forma adjustments will have been properly applied to the historical amounts used in the preparation of such Pro Forma Financial Statements.
(dii) Neither the Company Main Street nor any director or officer of the Company or any of its Subsidiaries norhas any material liability of any nature whatsoever (whether absolute, accrued, contingent or otherwise and whether due or to become due), except for those liabilities that are reflected or reserved against on the knowledge consolidated balance sheet of Main Street included in its Quarterly Report on Form 10-Q for the Companyfiscal quarter ended September 30, 2005 (including any independent auditor notes thereto) and for liabilities incurred in the ordinary course of business consistent with past practice since December 31, 2002 or in connection with this Agreement and the Company transactions contemplated hereby.
(iii) The records, systems, controls, data and information of Main Street and its Subsidiaries are recorded, stored, maintained and operated under means (including any electronic, mechanical or photographic process, whether computerized or not) that are under the exclusive ownership and direct control of Main Street or its SubsidiariesSubsidiaries or Main Street’s accountants (including all means of access thereto and therefrom), has identified or been made aware of (i) except for any significant deficiency or material weakness in non-exclusive ownership and non-direct control that would not reasonably be expected to have a Material Adverse Effect on the system of internal accounting controls utilized by described below in this Section 5.03(g)(iii). Main Street (A) has implemented and maintains disclosure controls and procedures (as defined in Rule 13a-15 promulgated under the Company or any of Exchange Act) to ensure that material information relating to Main Street, including its consolidated Subsidiaries, is made known to the management of Main Street by others within those entities, and (iiB) has disclosed, based on its most recent evaluation prior to the date hereof, to Main Street’s outside auditors and the audit committee of Main Street’s Board of Directors (y) any significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting (as defined in Rule 13a-15 promulgated under the Exchange Act) that are reasonably likely to adversely affect Main Street’s ability to record, process, summarize and report financial information and (z) any fraud, whether or not material, that involves the Company’s management or other employees who have a significant role in Main Street’s internal control over financial reporting. These disclosures were made in writing by management to Main Street’s auditors and audit committee and a copy has previously been made available to BB&T. As of the preparation date hereof and except as Previously Disclosed, there is no reason to believe that Main Street’s outside auditors and its chief executive officer and chief financial officer will not be able to give the certifications and attestations required pursuant to the rules and regulations adopted pursuant to Sections 302, 404 and 906 of financial statements the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act, without qualification (except to the extent expressly permitted by such rules and regulations), when next due.
(iv) Since December 31, 2004, (A) through the date hereof, neither Main Street nor any of its Subsidiaries nor, to Main Street’s knowledge, any director, officer, employee, auditor, accountant or representative of Main Street 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 internal accounting controls utilized by the Company or auditing practices, procedures, methodologies or methods of Main Street or any of its Subsidiaries or (iii) their respective internal accounting controls, including any material complaint, allegation, assertion or claim that Main Street or allegation regarding any of the foregoing.
(e) The Company maintains a system of internal its Subsidiaries has engaged in questionable accounting controls which the Company reasonably believes is sufficient to provide reasonable assurance that (i) transactions are executed in accordance with management’s general or specific authorizationsauditing practices, (ii) transactions are recorded as necessary to permit preparation of financial statements in conformity with IFRS and to maintain asset accountability, (iii) access to assets is permitted only in accordance with management’s general or specific authorization and (ivB) the recorded accountability for assets is compared with the existing assets at reasonable intervals and appropriate action is taken with respect to no attorney representing Main Street or any differences. The books and records of the Company have beenits Subsidiaries, and are beingwhether or not employed by Main Street or any of its Subsidiaries, maintained in all has reported evidence of a material respects in accordance with IFRS and violation of securities laws, breach of fiduciary duty or similar violation by Main Street or any other applicable legal and accounting requirements.
(f) Except as set forth on Section 4.8(f) of the Company Disclosure Letter, there are no outstanding loans it Subsidiaries or other extensions of credit made by the Company or its Subsidiaries to any of their respective executive officers (as defined in Rule 3b-7 under officers, directors, employees or agents to the Exchange Act) Board of Directors of Main Street or any committee thereof or to any director or officer of the Company or its SubsidiariesMain Street.
Appears in 1 contract
Financial Statements; Internal Controls. (a) The Company has previously provided to Acquiror true and complete Complete copies of the Company’s audited consolidated financial statements consisting of the statement of financial position and consolidated statements of comprehensive income, changes in equity and cash flows condition of the Company as at December 31 in each of the years 2011, 2012 and its Subsidiaries as 2013 and the related statements of income, cash flows, partners equity and changes in liabilities subordinated to claims of general creditors for the years then ended December 31, 2023 and December 31, 2022, together with the auditor’s reports thereon, which comply in all material respects with the applicable accounting requirements (including the standards of the PCAOB) and with the rules and regulations of the SEC, the Exchange Act and the Securities Act applicable to a registrant (the “Audited Financial Statements”), and unaudited financial statements consisting of the statement of financial condition of the Company as at August 31, 2014 and the related statements of income for the eight-month period then ended (the “Interim Financial Statements” and together with the Audited Financial Statements together with the H1 Financial Statements to be delivered pursuant to this AgreementStatements, the “Financial Statements”).
(b) Except as set forth on Section 4.8(b) of have been made available to the Company Disclosure Letter, the LP Buyer. The Financial Statements (i) present fairly present in all material respects the consolidated financial position of the Company and its consolidated Subsidiaries, as at of the respective dates thereof, designated therein and the consolidated results of their operations, their consolidated incomes, their consolidated changes in equity operations and their consolidated cash flows for the respective periods then ended designated therein and, in the case of the Audited Financial Statements only, the cash flows, partners equity and changes in liabilities subordinated to claims of general creditors, and (ii) were prepared in accordance with GAAP applied on a consistent basis throughout the periods indicated, except as may be indicated disclosed in the notes thereto and thereto, subject, in the case of the H1 Interim Financial Statements, to normal year-end adjustment and the absence adjustments, none of footnotes), (ii) were prepared in conformity with IFRS applied on a consistent basis during the periods involved (subject, in the case of the H1 Financial Statements, to normal year-end adjustment and the absence of footnotes), (iii) were prepared from, and which are in accordance in all material respects with, the books and records of the Company and its consolidated Subsidiaries, (iv) in the case of the Audited Financial Statements, were prepared in compliance in all material respects with the applicable accounting requirements (including the standards of the PCAOB) and with the rules and regulations of the SEC, the Exchange Act and the Securities Act applicable to a registrant, in effect as of the respective dates thereof, and (v) in the case of the H1 Financial Statements, when delivered by the Company for inclusion in the Proxy/Registration Statement for filing with the SEC following the date of this Agreement in accordance with Section 7.3, will comply in all material respects with the applicable accounting requirements (including the standards of the PCAOB) and with the rules and regulations of the SEC, the Exchange Act and the Securities Act applicable to a registrant, in effect as of the respective dates thereof.
(c) The Pro Forma Financial Statements will, when provided, present fairly in all material respects the information shown therein, comply in all material respects with the applicable accounting requirements (including the standards of the PCAOB) and with the rules and regulations of the SEC, the Exchange Act and the Securities Act applicable thereto, in effect as of the respective dates thereof, and will have been compiled on a basis consistent with that of the Audited Financial Statements. The assumptions, information and data used in the preparation of such Pro Forma Financial Statements are reasonably believed expected by the Company to be reasonable in light of current conditions and facts known to the Company, the pro forma adjustments used therein will be appropriate to give effect to the transactions or circumstances described thereinmaterial, and the pro forma adjustments will have been properly applied to the historical amounts used in the preparation absence of such Pro Forma Financial Statements.
(d) Neither the Company nor any director or officer notes. The audited balance sheet of the Company or any as of its Subsidiaries norDecember 31, 2013 is referred to herein as the knowledge of “Balance Sheet” and the Company, any independent auditor date thereof as the “Balance Sheet Date” and the balance sheet of the Company or its Subsidiariesas of August 31, has identified or been made aware of (i) any significant deficiency or material weakness in 2014 is referred to herein as the system of internal accounting controls utilized by “Interim Balance Sheet” and the Company or any of its Subsidiaries, (ii) any fraud, whether or not material, that involves date thereof as 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 or any of its Subsidiaries or (iii) any claim or allegation regarding any of the foregoing“Interim Balance Sheet Date”.
(e) The Company maintains a system of internal accounting controls which the Company reasonably believes is 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 IFRS 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. The books and records of the Company have been, and are being, maintained in all material respects in accordance with IFRS and any other applicable legal and accounting requirements.
(f) Except as set forth on Section 4.8(f) of the Company Disclosure Letter, there are no outstanding loans or other extensions of credit made by the Company or its Subsidiaries to any of their respective executive officers (as defined in Rule 3b-7 under the Exchange Act) or any director of the Company or its Subsidiaries.
Appears in 1 contract
Sources: Partnership Interest Purchase Agreement (Intl Fcstone Inc.)
Financial Statements; Internal Controls. (a) The Company has previously provided to Acquiror true and complete copies of the audited consolidated statement statements of financial position and consolidated position, statements of comprehensive income, statements of changes in shareholders’ equity and statements of cash flows of the Company for each of the years ended December 31, 2019 and December 31, 2018 (collectively, the “Audited Financial Statements”), were prepared and audited in accordance with the standards, principles and practices specified therein and, subject thereto, in accordance with GAAP, the standards of the Public Company Accounting Oversight Board and applicable Law as at the Balance Sheet Date, except as otherwise noted therein. Prior to the date hereof, true, complete and correct copies of the Audited Financial Statements, and the accompanying independent auditors’ reports, as applicable, have been made available to Acquiror.
(b) Prior to the date hereof the Company has made available to Acquiror true, complete and correct copies of the unaudited consolidated balance sheets and related unaudited consolidated statements of income, shareholders’ equity and cash flows of the Company and its Subsidiaries as of September 30, 2020 and for September 30, 2019 (the years ended December 31, 2023 and December 31, 2022“Unaudited Financial Statements” and, together with the auditor’s reports thereon, which comply in all material respects with the applicable accounting requirements (including the standards of the PCAOB) and with the rules and regulations of the SEC, the Exchange Act and the Securities Act applicable to a registrant (the “Audited Financial Statements” and the Audited Financial Statements together with the H1 Financial Statements to be delivered pursuant to this Agreement, the “Financial Statements”). Subject to notes and normal year-end audit adjustments that are not material in amount or effect, the Unaudited Financial Statements were prepared in accordance with the standards, principles and practices specified in the Audited Financial Statements and, subject thereto, in accordance with applicable Law and show a true and fair view, in all material respects, of the: (i) assets, liabilities, the financial position and state of affairs of the Company as of September 30, 2020 and September 30, 2019 and (ii) the profits and losses and cash flow of the Company for the nine (9)-month period ended as of September 30, 2020 and September 30, 2019, respectively.
(bc) Except as set forth on Section 4.8(b) of the Company Disclosure Letter, the The Financial Statements (i) fairly present in all material respects were derived from the consolidated financial position books and records of the Company and its consolidated Subsidiariesprepared in accordance with GAAP, as at the respective dates thereof, and the consolidated results of their operations, their consolidated incomes, their consolidated changes in equity and their consolidated cash flows for the respective periods then ended (except as may be indicated in the notes thereto and subjectusing in all material respects the same accounting principles, practices, procedures, policies and methods (with consistent classifications, judgments, inclusions, exclusions and valuation and estimation methodologies) used and applied in the case preparation of the H1 consolidated financial statements of the Company in the last three (3) years. The Financial Statements fairly present in all material respects the assets, liabilities, cash flow and financial condition and results of operations of the Company as of the times and for the periods referred to therein. Since the Balance Sheet Date, the Company has not made any material change in the accounting practices or policies applied in the preparation of the Financial Statements, except as required by applicable Law or GAAP.
(d) The Company maintains a system of accounting and internal controls designed to normal year-end adjustment provide reasonable assurances regarding the reliability of the financial reporting and the absence of footnotes), (ii) were prepared in conformity with IFRS applied on a consistent basis during the periods involved (subject, in the case preparation of the H1 Financial Statements, to normal year-end adjustment and financial statements of the absence of footnotes), (iii) were prepared from, and are Company in accordance in all material respects withwith GAAP. Within the last three (3) years, the books and records of the Company and its consolidated Subsidiaries, (iv) in the case of the Audited Financial Statements, were prepared in compliance in all material respects with the applicable accounting requirements (including the standards of the PCAOB) Company’s personnel and with the rules and regulations of the SEC, the Exchange Act and the Securities Act applicable to a registrant, in effect as of the respective dates thereof, and (v) in the case of the H1 Financial Statements, when delivered by the Company for inclusion in the Proxy/Registration Statement for filing with the SEC following the date of this Agreement in accordance with Section 7.3, will comply in all material respects with the applicable accounting requirements (including the standards of the PCAOB) and with the rules and regulations of the SEC, the Exchange Act and the Securities Act applicable to a registrant, in effect as of the respective dates thereof.
(c) The Pro Forma Financial Statements will, when provided, present fairly in all material respects the information shown therein, comply in all material respects with the applicable accounting requirements (including the standards of the PCAOB) and with the rules and regulations of the SEC, the Exchange Act and the Securities Act applicable thereto, in effect as of the respective dates thereof, and will have been compiled on a basis consistent with that of the Audited Financial Statements. The assumptions, information and data used independent accountants who participated in the preparation or review of such Pro Forma Financial Statements are reasonably believed financial statements or the internal accounting controls employed by the Company to be reasonable in light of current conditions and facts known to the Company, the pro forma adjustments used therein will be appropriate to give effect to the transactions or circumstances described therein, and the pro forma adjustments will ) have been properly applied to the historical amounts used in the preparation of such Pro Forma Financial Statements.
(d) Neither the Company not identified nor any director or officer of the Company or any of its Subsidiaries nor, to the knowledge of the Company, any independent auditor of the Company or its Subsidiaries, has identified or been made aware of (i) any significant deficiency or material weakness in the system of internal accounting controls utilized by the Company or any of its SubsidiariesCompany, (ii) 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 or any of its Subsidiaries personnel involved in financial reporting or (iii) any written claim or allegation regarding any of the foregoing.
(e) . The Company maintains a system of internal accounting controls which Audited Financial Statements and the Unaudited Financial Statements, when delivered by the Company reasonably believes is sufficient to provide reasonable assurance that (i) transactions are executed for inclusion in the Registration Statement for filing with the SEC following the date of this Agreement in accordance with management’s general or specific authorizationsSection 8.02, (ii) transactions are recorded as necessary to permit preparation of financial statements in conformity with IFRS 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. The books and records of the Company have been, and are being, maintained will comply in all material respects in accordance with IFRS the applicable accounting requirements and any other applicable legal with the rules and accounting requirements.
(f) Except as set forth on Section 4.8(f) regulations of the Company Disclosure Letter, there are no outstanding loans or other extensions SEC and the Securities Act in effect as of credit made by the Company or its Subsidiaries to any of their respective executive officers (as defined in Rule 3b-7 under the Exchange Act) or any director of the Company or its Subsidiariessuch date.
Appears in 1 contract
Financial Statements; Internal Controls. (a) The Company has previously provided to Acquiror true and complete copies of (i) the audited consolidated statement of financial position and consolidated statements of comprehensive income, changes in equity and cash flows of the Company and its Subsidiaries as of and for the years ended December 31, 2023 and December 31, 2022, together with the auditor’s reports thereonthereon (the “Audited Financial Statements”), and (ii) the unaudited consolidated statement of financial position and consolidated statements of comprehensive income, changes in equity and cash flows of the Company and its Subsidiaries as of and for the six months ended June 30, 2024 (the “2024 H1 Financial Statements”, together with the Audited Financial Statements, the 2024 Financial Statements to be delivered pursuant to this Agreement, the “Financial Statements”), which comply in all material respects with the applicable accounting requirements (including the standards of the PCAOB) and with the rules and regulations of the SEC, the Exchange Act and the Securities Act applicable to a registrant (the “Audited Financial Statements” and the Audited Financial Statements together with the H1 Financial Statements to be delivered pursuant to this Agreement, the “Financial Statements”)registrant.
(b) Except as set forth on Section 4.8(b) of the Company Disclosure Letter, the Financial Statements (i) fairly present in all material respects the consolidated financial position of the Company and its consolidated Subsidiaries, as at the respective dates thereof, and the consolidated results of their operations, their consolidated incomes, their consolidated changes in equity and their consolidated cash flows for the respective periods then ended (except as may be indicated in the notes thereto and subject, in the case of the H1 Financial Statements, to normal year-end adjustment and the absence of footnotes), (ii) were prepared in conformity with IFRS GAAP applied on a consistent basis during the periods involved (subject, in the case of the H1 Financial Statements, to normal year-end adjustment and the absence of footnotes), (iii) were prepared from, and are in accordance in all material respects with, the books and records of the Company and its consolidated Subsidiaries, (iv) in the case of the Audited Financial Statements, were prepared in compliance in all material respects with the applicable accounting requirements (including the standards of the PCAOB) and with the rules and regulations of the SEC, the Exchange Act and the Securities Act applicable to a registrant, in effect as of the respective dates thereof, and (v) in the case of the H1 2024 Financial Statements, when delivered by the Company for inclusion in the Proxy/Registration Statement for filing with the SEC following the date of this Agreement in accordance with Section 7.3, will comply in all material respects with the applicable accounting requirements (including the standards of the PCAOB) and with the rules and regulations of the SEC, the Exchange Act and the Securities Act applicable to a registrant, in effect as of the respective dates thereof.
(c) The Pro Forma Financial Statements will, when provided, present fairly in all material respects the information shown therein, comply in all material respects with the applicable accounting requirements (including the standards of the PCAOB) and with the rules and regulations of the SEC, the Exchange Act and the Securities Act applicable thereto, in effect as of the respective dates thereof, and will have been compiled on a basis consistent with that of the Audited Financial Statements. The assumptions, information and data used in the preparation of such Pro Forma Financial Statements are reasonably believed by the Company to be reasonable in light of current conditions and facts known to the Company, the pro forma adjustments used therein will be appropriate to give effect to the transactions or circumstances described therein, and the pro forma adjustments will have been properly applied to the historical amounts used in the preparation of such Pro Forma Financial Statements.
(d) Neither the Company nor any director or officer of the Company or any of its Subsidiaries nor, to the knowledge of the Company, any independent auditor of the Company or its Subsidiaries, has identified or been made aware of (i) any significant deficiency or material weakness in the system of internal accounting controls utilized by the Company or any of its Subsidiaries, (ii) 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 or any of its Subsidiaries or (iii) any claim or allegation regarding any of the foregoing.
(ed) The Company maintains a system of internal accounting controls which the Company reasonably believes is 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 IFRS 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. The books and records of the Company have been, and are being, maintained in all material respects in accordance with IFRS GAAP and any other applicable legal and accounting requirements.
(fe) Except as set forth on Section 4.8(f4.8(e) of the Company Disclosure Letter, there are no outstanding loans or other extensions of credit made by the Company or its Subsidiaries to any of their respective executive officers (as defined in Rule 3b-7 under the Exchange Act) or any director of the Company or its Subsidiaries.
Appears in 1 contract
Sources: Business Combination Agreement (Horizon Space Acquisition II Corp.)
Financial Statements; Internal Controls. (a) The Attached as Section 5.9(a) of the Company has previously provided to Acquiror Disclosure Letter are: true and complete copies of (i) the audited unaudited consolidated statement of financial position positions and consolidated statements of comprehensive income, changes in equity and cash flows of the Company and its Subsidiaries as of and for the years ended December period November 18, 2022 through July 31, 2023 and December 31, 2022, together with the auditor’s reports thereon, which comply in all material respects with the applicable accounting requirements (including the standards of the PCAOB) and with the rules and regulations of the SEC, the Exchange Act and the Securities Act applicable to a registrant (the “Audited Financial Statements”) and (ii) the unaudited consolidated statement of financial positions and consolidated statements of comprehensive income, changes in equity and cash flows of the Company and its Subsidiaries as of and for the seven-month period ending July 31, 2023 (the “Q1 Financial Statements” and together with the Audited Financial Statements together with the H1 Financial Statements to be delivered pursuant to this AgreementStatements, the “Financial Statements”).
(b) Except as set forth on Section 4.8(b) of the Company Disclosure Letter, the The Financial Statements (i) fairly present in all material respects the consolidated financial position of the Company and its consolidated Subsidiaries, as at the respective dates thereof, and the consolidated results of their operations, their consolidated incomes, their consolidated changes in equity and their consolidated cash flows for the respective periods then ended (except as may be indicated in the notes thereto and subject, in the case of the H1 Q1 Financial Statements, to normal year-end adjustment and the absence of footnotes), (ii) were prepared in conformity with IFRS all applicable Laws and GAAP applied on a consistent basis during the periods involved (except as may be indicated in the notes thereto and subject, in the case of the H1 Q1 Financial Statements, to normal year-end adjustment and the absence of footnotes), (iii) were prepared from, and are in accordance in all material respects with, the books and records of the Company and its consolidated Subsidiaries, Subsidiaries and (iv) in the case of the Audited Financial Statements, were prepared in compliance in all material respects with the applicable accounting requirements (including the standards of the PCAOB) and with the rules and regulations of the SEC, the Exchange Act and the Securities Act applicable to a registrant, in effect as of the respective dates thereof, and (v) in the case of the H1 Financial Statements, when delivered by the Company for inclusion in the Proxy/Registration Statement for filing with the SEC following the date of this Agreement in accordance with Section 7.3, will Statements comply in all material respects with the applicable accounting requirements (including the standards of the PCAOB) and with the rules and regulations of the SEC, the Exchange Act and the Securities Act applicable to a registrant, in effect as of the respective dates thereof.
(c) The Pro Forma Financial Statements will, when provided, present fairly in all material respects the information shown therein, comply in all material respects with the applicable accounting requirements (including the standards of the PCAOB) and with the rules and regulations of the SEC, the Exchange Act and the Securities Act applicable thereto, in effect as of the respective dates thereof, and will have been compiled on a basis consistent with that of the Audited Financial Statements. The assumptions, information and data used in the preparation of such Pro Forma Financial Statements are reasonably believed by the Company to be reasonable in light of current conditions and facts known to the Company, the pro forma adjustments used therein will be appropriate to give effect to the transactions or circumstances described therein, and the pro forma adjustments will have been properly applied to the historical amounts used in the preparation of such Pro Forma Financial Statements.
(d) Neither the Company nor any director or officer of the Company or any of its Subsidiaries norSubsidiaries, nor to the knowledge of the Company, any independent auditor of the Company or its Subsidiaries, has identified or been made aware of (i) any significant deficiency or material weakness in the system of internal accounting controls utilized by the Company or any of its Subsidiaries, (ii) 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 or any of its Subsidiaries or (iii) any claim or allegation regarding any of the foregoing.
(ed) The Company maintains a system of internal accounting controls controls, policies and procedures (whether formal or informal) which the Company is reasonably believes is sufficient to provide reasonable assurance that (i) that transactions are executed in accordance with management’s general or specific authorizations, (ii) that transactions are recorded recorded, and records are maintained in reasonable detail as necessary to permit preparation of accurate financial statements in conformity with IFRS GAAP, which fairly reflect the transactions and disposition of assets of each of the Company and its Subsidiaries and to maintain asset accountability, (iii) that access to assets is permitted only in accordance with management’s general or specific authorization and authorization, (iv) that the recorded accountability for assets is compared with the existing assets at reasonable intervals and appropriate action is taken with respect to any differences. , (v) that information required to be disclosed by each of the Company and its Subsidiaries is recorded and reported on a timely basis, and (vi) regarding prevention or timely detection of unauthorized acquisitions, misappropriation, use or disposition of the Company’s, or its Subsidiaries’, assets that could have a material effect on its financial statements (such materiality assessed with respect to a Company Material Adverse Effect).
(e) The books and records of the Company have been, and are being, maintained in all material respects in accordance with IFRS GAAP and any other applicable legal and accounting requirements.
(f) Except as set forth on Section 4.8(f) The Company, and each of the Company Disclosure Letterits Subsidiaries, there are no do not have any outstanding loans loan capital and has not engaged in nor agreed to engage in any financing or other extensions transaction or act of credit made by a type which would not be required to be shown or reflected in the Company or its Subsidiaries to any of their respective executive officers (as defined in Rule 3b-7 under the Exchange Act) or any director of the Company or its SubsidiariesFinancial Statements.
Appears in 1 contract
Sources: Business Combination Agreement (DUET Acquisition Corp.)
Financial Statements; Internal Controls. (ai) The Company Park has previously provided delivered to Acquiror Vision Bancshares true and complete copies of (A) Park’s consolidated balance sheets as of December 31, 2003, 2004 and 2005 and the audited consolidated statement of financial position and related consolidated statements of comprehensive income, changes in operations, stockholders’ equity and cash flows for the fiscal years then ended, including the footnotes thereto, if any, additional or supplemental information supplied therewith and the report prepared in connection therewith by the independent registered public accounting firm auditing such financial statements; and (B) Park’s interim unaudited consolidated financial statements for three and six months ended June 30, 2006. The documents described in clauses (A) and (B) above (collectively, the “Park Financial Statements”):
(1) are true, complete and correct;
(2) are in accordance with the books and records of Park;
(3) comply as to form in all material respects with applicable accounting requirements and the published rules and regulations of the Company SEC with respect thereto;
(4) fairly and accurately present the consolidated financial condition of Park and its Subsidiaries as of and for the years ended December 31, 2023 and December 31, 2022, together with the auditor’s reports thereon, which comply in all material respects with the applicable accounting requirements (including the standards of the PCAOB) and with the rules and regulations of the SEC, the Exchange Act and the Securities Act applicable to a registrant (the “Audited Financial Statements” and the Audited Financial Statements together with the H1 Financial Statements to be delivered pursuant to this Agreement, the “Financial Statements”).
(b) Except as set forth on Section 4.8(b) of the Company Disclosure Letter, the Financial Statements (i) fairly present in all material respects the consolidated financial position of the Company and its consolidated Subsidiaries, as at the respective dates thereof, and the their respective consolidated results of their operations, their consolidated incomes, their consolidated changes in equity operations and their consolidated cash flows for the respective periods then ended ended, as applicable (except in each case as may be indicated in the notes thereto noted therein and subject, in the case of unaudited interim financial statements, to the H1 Financial Statements, absence of full footnotes and to normal year-end adjustment and the absence of footnotesaudit adjustments that are not material in amount or in effect), ;
(ii5) were prepared on a consistent basis throughout the periods involved; and
(6) have been prepared in conformity accordance with IFRS GAAP (except, in the case of unaudited financial statements, as permitted by Form 10-Q of the SEC) applied on a consistent basis during the periods involved (except in each case as may be noted therein and subject, in the case of unaudited interim financial statements, to the H1 Financial Statements, absence of full footnotes and to normal year-end adjustment and the absence of footnotesaudit adjustments that are not material in amount or in effect), (iii) were prepared from, and are in accordance in all material respects with, the books and records of the Company and its consolidated Subsidiaries, (iv) in the case of the Audited Financial Statements, were prepared in compliance in all material respects with the applicable accounting requirements (including the standards of the PCAOB) and with the rules and regulations of the SEC, the Exchange Act and the Securities Act applicable to a registrant, in effect as of the respective dates thereof, and (v) in the case of the H1 Financial Statements, when delivered by the Company for inclusion in the Proxy/Registration Statement for filing with the SEC following the date of this Agreement in accordance with Section 7.3, will comply in all material respects with the applicable accounting requirements (including the standards of the PCAOB) and with the rules and regulations of the SEC, the Exchange Act and the Securities Act applicable to a registrant, in effect as of the respective dates thereof.
(cii) The Pro Forma Financial Statements willrecords, when providedsystems, present fairly in all material respects the controls, data and information shown thereinof Park and its Subsidiaries are recorded, comply in all material respects with the applicable accounting requirements stored, maintained and operated under means (including any electronic, mechanical or photographic process, whether computerized or not) that are under the standards exclusive ownership and direct control of the PCAOB) and with the rules and regulations of the SEC, the Exchange Act and the Securities Act applicable thereto, in effect as of the respective dates thereof, and will have been compiled on a basis consistent with that of the Audited Financial Statements. The assumptions, information and data used in the preparation of such Pro Forma Financial Statements are reasonably believed by the Company to be reasonable in light of current conditions and facts known to the Company, the pro forma adjustments used therein will be appropriate to give effect to the transactions Park or circumstances described therein, and the pro forma adjustments will have been properly applied to the historical amounts used in the preparation of such Pro Forma Financial Statements.
(d) Neither the Company nor any director or officer of the Company or any one of its Subsidiaries noror their respective accountants (including all means of access thereto and therefrom), except for any non-exclusive ownership and non-direct control that would not reasonably be expected to the knowledge of the Company, any independent auditor of the Company or its Subsidiaries, has identified or been made aware of (i) any significant deficiency or material weakness in have a Material Adverse Effect on the system of internal accounting controls utilized described below in this Section 5.03(f)(ii). Park and its Subsidiaries have devised and maintain a system of internal accounting controls sufficient to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with GAAP, including that: (A) transactions are executed only in accordance with management’s authorization; (B) transactions are recorded as necessary to permit preparation of the financial statements of Park and its Subsidiaries in conformity with GAAP consistently applied with respect to any criteria applicable to such financial statements and to maintain accountability for the property and assets of Park and its Subsidiaries; (C) access to such property and assets is permitted only in accordance with management’s authorization; (D) the reporting of such property and assets is compared with existing property and assets at regular intervals and appropriate action is taken with respect to any differences; and (E) 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. Park (1) has implemented and maintains disclosure controls and procedures (as defined in Rule 13a-15 promulgated under the Exchange Act) to ensure that material information relating to Park and its Subsidiaries is made known to the management of Park by others within Park and its Subsidiaries as appropriate to allow timely decisions regarding required disclosure and to make the certifications required by the Company Exchange Act with respect to the Park SEC Documents, and (2) has disclosed, based on its most recent evaluation prior to the date hereof, to Park’s outside auditors and the audit committee of the Park Board (y) any significant deficiencies and material weaknesses in the design or any operation of its Subsidiariesinternal control over financial reporting (as defined in Rule 13a-15 promulgated under the Exchange Act) that are reasonably likely to adversely affect Park’s ability to record, process, summarize and report financial information and (iiz) any fraud, whether or not material, that involves the Company’s management or other employees who have a significant role in the preparation of Park’s internal control over financial statements or the internal accounting controls utilized by the Company or any of its Subsidiaries or (iii) any claim or allegation regarding any reporting. As of the foregoing.
(e) The Company maintains a system of internal accounting controls which date hereof, there is no reason to believe that Park’s outside auditors and its principal executive officer and principal financial officer will not be able to give the Company reasonably believes is sufficient certifications and attestations required pursuant to provide reasonable assurance that (i) transactions are executed in accordance with management’s general or specific authorizationsthe rules and regulations adopted pursuant to Sections 302, (ii) transactions are recorded as necessary to permit preparation of financial statements in conformity with IFRS 404 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. The books and records 906 of the Company have beenS▇▇▇▇▇▇▇-▇▇▇▇▇ Act, without qualification (except to the extent expressly permitted by such rules and are beingregulations), maintained in all material respects in accordance with IFRS and any other applicable legal and accounting requirementswhen next due.
(f) Except as set forth on Section 4.8(f) of the Company Disclosure Letter, there are no outstanding loans or other extensions of credit made by the Company or its Subsidiaries to any of their respective executive officers (as defined in Rule 3b-7 under the Exchange Act) or any director of the Company or its Subsidiaries.
Appears in 1 contract
Financial Statements; Internal Controls. (ai) The Company Seller has previously provided delivered to Acquiror Purchaser true and complete copies of (A) its balance sheets as of December 31, 2004, 2005 and 2006 and the audited consolidated statement of financial position and consolidated related statements of comprehensive incomeoperations, changes in stockholders’ equity and cash flows of the Company and its Subsidiaries as of and for the fiscal years ended then ended, including the footnotes thereto, if any, additional or supplemental information supplied therewith and the report prepared in connection therewith by the independent certified public accountants auditing such financial statements; and (B) its interim monthly financial reports and financial statements for the period beginning after December 31, 2023 2006 and December 31ended on September 30, 2022, together with the auditor’s reports thereon, which comply 2007. The documents described in all material respects with the applicable accounting requirements clauses (including the standards of the PCAOBA) and with the rules and regulations of the SEC, the Exchange Act and the Securities Act applicable to a registrant (the “Audited Financial Statements” and the Audited Financial Statements together with the H1 Financial Statements to be delivered pursuant to this AgreementB) above (collectively, the “Seller Financial Statements”).):
(b1) Except are true, complete and correct;
2) are in accordance with the books and records of Seller;
3) present fairly and accurately the assets, liabilities, revenues, expenses and financial condition of Seller as set forth on Section 4.8(b) of the Company Disclosure Letter, the Financial Statements (i) fairly present in all material respects the consolidated financial position of the Company and its consolidated Subsidiaries, as at the respective dates thereof, and the consolidated results of their operations, their consolidated incomes, their consolidated changes in equity and their consolidated cash flows operations for the respective periods then ended (except as may be indicated in the notes thereto and subject, in the case of the H1 Financial Statements, to normal year-end adjustment and the absence of footnotes), (iiended;
4) were prepared in conformity with IFRS applied on a consistent basis during throughout the periods involved (subject, in the case of the H1 Financial Statements, to normal year-end adjustment and the absence of footnotes), (iiiinvolved; and
5) were have been prepared from, and are in accordance in all material respects with, the books and records of the Company and its consolidated Subsidiaries, (iv) in the case of the Audited Financial Statements, were prepared in compliance in all material respects with the applicable accounting requirements (including the standards of the PCAOB) and with the rules and regulations of the SEC, the Exchange Act and the Securities Act applicable to a registrant, in effect as of the respective dates thereof, and (v) in the case of the H1 Financial Statements, when delivered by the Company for inclusion in the Proxy/Registration Statement for filing with the SEC following the date of this Agreement in accordance with Section 7.3, will comply in all material respects with the applicable accounting requirements (including the standards of the PCAOB) and with the rules and regulations of the SEC, the Exchange Act and the Securities Act applicable to a registrant, in effect as of the respective dates thereofGAAP.
(c) The Pro Forma Financial Statements will, when provided, present fairly in all material respects the information shown therein, comply in all material respects with the applicable accounting requirements (including the standards of the PCAOB) and with the rules and regulations of the SEC, the Exchange Act and the Securities Act applicable thereto, in effect as of the respective dates thereof, and will have been compiled on a basis consistent with that of the Audited Financial Statements. The assumptions, information and data used in the preparation of such Pro Forma Financial Statements are reasonably believed by the Company to be reasonable in light of current conditions and facts known to the Company, the pro forma adjustments used therein will be appropriate to give effect to the transactions or circumstances described therein, and the pro forma adjustments will have been properly applied to the historical amounts used in the preparation of such Pro Forma Financial Statements.
(dii) Neither the Company Seller nor any director or officer of the Company or any of its Subsidiaries norhas any material liability (whether absolute, accrued, contingent or otherwise and whether due or to become due), except for those liabilities that are reflected or reserved against on the knowledge consolidated balance sheet of Seller included in its Quarterly Report on Form 10-Q for the Companyfiscal quarter ended September 30, 2007 (including any independent auditor notes thereto) and for liabilities incurred in the ordinary course of business consistent with past practice since September 30, 2007 or in connection with this Agreement and the Company transactions contemplated hereby.
(iii) The records, systems, controls, data and information of Seller and its Subsidiaries are recorded, stored, maintained and operated under means (including any electronic, mechanical or photographic process, whether computerized or not) that are under the exclusive ownership and direct control of Seller or its SubsidiariesSubsidiaries or accountants (including all means of access thereto and therefrom), has identified or been made aware of (i) except for any significant deficiency or material weakness in non-exclusive ownership and non-direct control that would not reasonably be expected to have a Material Adverse Effect on the system of internal accounting controls utilized by described below in this Section 5.02(g)(iii). Seller (A) has implemented and maintains disclosure controls and procedures (as defined in Rule 13a-15 promulgated under the Company or any of Exchange Act) to ensure that material information relating to Seller, including its consolidated Subsidiaries, is made known to the chief executive officer and the chief financial officer of Seller by others within those entities, and (iiB) has disclosed, based on its most recent evaluation prior to the date hereof, to Seller’s outside auditors and the audit committee of Seller’s Board of Directors (y) any significant deficiencies and material weaknesses in the design or operation of internal controls over financial reporting (as defined in Rule 13a-15 promulgated under the Exchange Act) that are reasonably likely to adversely affect Seller’s ability to record, process, summarize and report financial information and (z) any fraud, whether or not material, that involves the Company’s management or other employees who have a significant role in Seller’s internal controls over financial reporting. These disclosures were made in writing by management to Seller’s auditors and audit committee and a copy has previously been made available to Purchaser. As of the preparation date hereof, and except as Previously Disclosed, Seller knows of no reason related to Seller to believe that Seller’s outside auditors and its chief executive officer and chief financial statements officer will not be able to give the certifications and attestations required pursuant to Sections 302, 404 and 906 of the S▇▇▇▇▇▇▇-▇▇▇▇▇ Act, without qualification (except to extent expressly permitted by such rules and regulations), when next due.
(iv) Since December 31, 2006, (A) through the date hereof, neither Seller nor any of its Subsidiaries nor, to Seller’s knowledge, any director, officer, employee, auditor, accountant or representative of Seller 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 internal accounting controls utilized by the Company or auditing practices, procedures, methodologies or methods of Seller or any of its Subsidiaries or (iii) their respective internal accounting controls, including any material complaint, allegation, assertion or claim that Seller or allegation regarding any of the foregoing.
(e) The Company maintains a system of internal its Subsidiaries has engaged in questionable accounting controls which the Company reasonably believes is sufficient to provide reasonable assurance that (i) transactions are executed in accordance with management’s general or specific authorizationsauditing practices, (ii) transactions are recorded as necessary to permit preparation of financial statements in conformity with IFRS and to maintain asset accountability, (iii) access to assets is permitted only in accordance with management’s general or specific authorization and (ivB) the recorded accountability for assets is compared with the existing assets at reasonable intervals and appropriate action is taken with respect to no attorney representing Seller or any differences. The books and records of the Company have beenits Subsidiaries, and are beingwhether or not employed by Seller or any of its Subsidiaries, maintained in all has reported evidence of a material respects in accordance with IFRS and violation of securities laws, breach of fiduciary duty or similar violation by Seller or any other applicable legal and accounting requirements.
(f) Except as set forth on Section 4.8(f) of the Company Disclosure Letter, there are no outstanding loans it Subsidiaries or other extensions of credit made by the Company or its Subsidiaries to any of their respective executive officers (as defined in Rule 3b-7 under officers, directors, employees or agents to the Exchange Act) Board of Directors of Seller or any committee thereof or to any director or officer of the Company or its SubsidiariesSeller.
Appears in 1 contract
Sources: Merger Agreement (S&t Bancorp Inc)
Financial Statements; Internal Controls. (a) The Attached hereto as Section 4.05 of the Company has previously provided to Acquiror Disclosure Schedule are true and complete copies of the following financial statements (such statements and the notes related thereto, the “Company Financial Statements”): the audited consolidated statement of financial position and consolidated statements of comprehensive incomethe Company, changes in equity and cash flows of which comprise the Group (being the Company and its Subsidiaries as and their interests in associates and joint ventures) income statement, Group statement of comprehensive income, Group statement of financial position, Group statement of changes in equity, Group statement of cash flows, and related notes, for the fiscal years ended December ended, March 31, 2023 and December 2010, March 31, 20222011, together with March 31, 2012, including the directors’ responsibilities statements and unqualified statutory auditor’s reports thereon, which comply in all material respects with the applicable accounting requirements (including the standards of the PCAOB) and with the rules and regulations of the SEC, the Exchange Act and the Securities Act applicable to a registrant (the “Audited Financial Statements” and the Audited Financial Statements together with the H1 Financial Statements to be delivered pursuant to this Agreement, the “Financial Statements”)related thereto.
(b) Except as set forth on Section 4.8(b) of Since March 31, 2009, the Company Disclosure Letter, the Financial Statements (i) fairly present in all material respects the consolidated financial position of the Company have been prepared from and its consolidated Subsidiaries, as at the respective dates thereof, and the consolidated results of their operations, their consolidated incomes, their consolidated changes in equity and their consolidated cash flows for the respective periods then ended (except as may be indicated in the notes thereto and subject, in the case of the H1 Financial Statements, to normal year-end adjustment and the absence of footnotes), (ii) were prepared in conformity with IFRS applied on a consistent basis during the periods involved (subject, in the case of the H1 Financial Statements, to normal year-end adjustment and the absence of footnotes), (iii) were prepared from, and covered thereby are in accordance in all material respects with, with the books and records of the Company and its consolidated Subsidiaries, (ivii) have been prepared in accordance with IFRS applied on a consistent basis throughout the periods covered thereby (except as expressly indicated in the case notes thereto) and (iii) give a true and fair view of the Audited Financial Statements, were prepared in compliance in all material respects with the applicable accounting requirements (including the standards consolidated financial position of the PCAOB) Company and with the rules and regulations of the SEC, the Exchange Act and the Securities Act applicable to a registrant, in effect its Subsidiaries as of the respective dates thereof, thereof and (v) in their consolidated results of operations and the case of cash flows for the H1 Financial Statements, when delivered by the Company for inclusion in the Proxy/Registration Statement for filing with the SEC following the date of this Agreement periods then ended in accordance with Section 7.3, will comply in all material respects with the applicable accounting requirements (including the standards of the PCAOB) and with the rules and regulations of the SEC, the Exchange Act and the Securities Act applicable to a registrant, in effect as of the respective dates thereofIFRS.
(c) The Pro Forma Financial Statements willSince March 31, when provided, present fairly in all material respects the information shown therein, comply in all material respects with the applicable accounting requirements (including the standards of the PCAOB) and with the rules and regulations of the SEC2009, the Exchange Act books of account, minute books and the Securities Act applicable thereto, in effect as of the respective dates thereof, and will have been compiled on a basis consistent with that of the Audited Financial Statements. The assumptions, information and data used in the preparation of such Pro Forma Financial Statements are reasonably believed by the Company to be reasonable in light of current conditions and facts known to the Company, the pro forma adjustments used therein will be appropriate to give effect to the transactions or circumstances described therein, and the pro forma adjustments will have been properly applied to the historical amounts used in the preparation of such Pro Forma Financial Statements.
(d) Neither the Company nor any director or officer other records of the Company or any and each other member of its Subsidiaries northe AB Group and, to the knowledge Knowledge of the Company, any independent auditor of the Company or its Subsidiarieseach AB Principal JV, has identified or been made aware of (i) any significant deficiency or material weakness in the system of internal accounting controls utilized by the Company or any of its Subsidiaries, (ii) 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 or any of its Subsidiaries or (iii) any claim or allegation regarding any of the foregoing.
(e) The Company maintains a system of internal accounting controls which the Company reasonably believes is 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 IFRS complete 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. The books and records of the Company have been, and are being, maintained correct in all material respects in accordance with Applicable Law, and have recorded therein the results of operations and the assets and liabilities of the Company and each other member of the AB Group and, to the Knowledge of the Company, each AB Principal JV, as applicable, required to be reflected in accordance with IFRS in all material respects. Since March 31, 2009, each of the Company and any the other applicable legal members of the AB Group and, to the Knowledge of the Company, each AB Principal JV, has maintained a system of accounting and accounting requirementsinternal controls effective to provide reasonable assurances regarding the reliability of the consolidated financial reporting and the preparation of the consolidated financial statements of the Company and its consolidated Subsidiaries in accordance with IFRS in all material respects.
(fd) Since March 31, 2009, neither the Company nor any other member of the AB Group nor, to the Knowledge of the Company, any AB Principal JV, has received any complaint, allegation, assertion or claim regarding the accounting or auditing practices, procedures, methodologies or methods of the Company or any other member of the AB Group or any AB Principal JV, or their respective internal accounting controls, relating to periods after March 31, 2009, except for any complaints, allegations, assertions or claims that have not had, and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect.
(e) Except as set forth on Section 4.8(f4.05(e) of the Company Disclosure LetterSchedule, there are no outstanding loans neither the Company nor any other member of the AB Group is a party to, or other extensions has any commitment to become a party to, any material off-balance sheet partnership or arrangements, or any similar Contract where the result, purpose or effect of credit made by such Contract is to avoid disclosure of any material transaction involving, or material liabilities of, the Company or its Subsidiaries to any other member of the AB Group, as applicable, in their respective executive officers financial statements (as defined in Rule 3b-7 under the Exchange Act) or any director of including the Company or its SubsidiariesFinancial Statements).
Appears in 1 contract
Financial Statements; Internal Controls. (a) The Attached as Section 4.9(a) of the Company has previously provided to Acquiror true Disclosure Letter are: true, complete and complete correct copies of (i) the audited consolidated statement of financial position positions and consolidated statements of comprehensive income, changes in equity and cash flows of the Company and its Subsidiaries as of and for the years ended December 31, 2023 2022 and December 31, 20222021 audited in accordance with the Singapore Financial Reporting Standards (“SFRS”) issued by the Accounting Standards Council of Singapore (“ACS”), and the statements of profit or loss and other comprehensive income, changes in equity, and cash flows of the of the Company and its Subsidiaries, together with the auditor’s reports thereonthereon (collectively, which comply in all material respects with the applicable accounting requirements (including the standards of the PCAOB) and with the rules and regulations of the SEC, the Exchange Act and the Securities Act applicable to a registrant (the “Audited Financial Statements”) and (ii) no later than May 15, 2023, the unaudited consolidated statement of financial positions and consolidated statements of comprehensive income, changes in equity and cash flows of the Company and its Subsidiaries as of and for the three-month period ending March 31, 2023 (the “Q1 Financial Statements” and together with the Audited Financial Statements together with the H1 Financial Statements to be delivered pursuant to this AgreementStatements, the “Financial Statements”).
(b) Except as set forth on Section 4.8(b) of the Company Disclosure Letter, the The Financial Statements (i) fairly present in all material respects the consolidated financial position of the Company and its consolidated Subsidiaries, as at the respective dates thereof, and the consolidated results of their operations, their consolidated incomes, their consolidated changes in equity and their consolidated cash flows for the respective periods then ended (except as may be indicated in the notes thereto and subject, in the case of the H1 Q1 Financial Statements, to normal year-end adjustment and the absence of footnotes), (ii) were prepared in conformity with IFRS all applicable Laws and GAAP applied on a consistent basis during the periods involved (except as may be indicated in the notes thereto and subject, in the case of the H1 Q1 Financial Statements, to normal year-end adjustment and the absence of footnotes), (iii) were prepared from, and are in accordance in all material respects with, the books and records of the Company and its consolidated Subsidiaries, Subsidiaries and (iv) in the case of the Audited Financial Statements, were prepared in compliance in all material respects with the applicable accounting requirements (including the standards of the PCAOB) and with the rules and regulations of the SEC, the Exchange Act and the Securities Act applicable to a registrant, in effect as of the respective dates thereof, and (v) in the case of the H1 Financial Statements, when delivered by the Company for inclusion in the Proxy/Registration Statement for filing with the SEC following the date of this Agreement in accordance with Section 7.3, will Statements comply in all material respects with the applicable accounting requirements (including the standards of the PCAOB) and with the rules and regulations of the SEC, the Exchange Act and the Securities Act applicable to a registrant, in effect as of the respective dates thereof.
(c) The Pro Forma Financial Statements will, when provided, present fairly in all material respects the information shown therein, comply in all material respects with the applicable accounting requirements (including the standards of the PCAOB) and with the rules and regulations of the SEC, the Exchange Act and the Securities Act applicable thereto, in effect as of the respective dates thereof, and will have been compiled on a basis consistent with that of the Audited Financial Statements. The assumptions, information and data used in the preparation of such Pro Forma Financial Statements are reasonably believed by the Company to be reasonable in light of current conditions and facts known to the Company, the pro forma adjustments used therein will be appropriate to give effect to the transactions or circumstances described therein, and the pro forma adjustments will have been properly applied to the historical amounts used in the preparation of such Pro Forma Financial Statements.
(d) Neither the Company nor any director or officer of the Company or any of its Subsidiaries norSubsidiaries, nor to the knowledge of the Company, any independent auditor of the Company or its Subsidiaries, has identified or been made aware of (i) any significant deficiency or material weakness in the system of internal accounting controls utilized by the Company or any of its Subsidiaries, (ii) 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 or any of its Subsidiaries or (iii) any claim or allegation regarding any of the foregoing.
(ed) The Company maintains a system of internal accounting controls controls, policies and procedures (whether formal or informal) which the Company is reasonably believes is sufficient to provide reasonable assurance that (i) that transactions are executed in accordance with management’s general or specific authorizations, (ii) that transactions are recorded recorded, and records are maintained in reasonable detail as necessary to permit preparation of accurate financial statements in conformity with IFRS GAAP, which fairly reflect the transactions and disposition of assets of each of the Company and its Subsidiaries and to maintain asset accountability, (iii) that access to assets is permitted only in accordance with management’s general or specific authorization and authorization, (iv) that the recorded accountability for assets is compared with the existing assets at reasonable intervals and appropriate action is taken with respect to any differences. , (v) that information required to be disclosed by each of the Company and its Subsidiaries is recorded and reported on a timely basis, and (vi) regarding prevention or timely detection of unauthorized acquisitions, misappropriation, use or disposition of the Company’s, or its Subsidiaries’ assets that could have a material effect on its financial statements (such materiality assessed with respect to a Company Material Adverse Effect).
(e) The books and records of the Company have been, and are being, maintained in all material respects in accordance with IFRS GAAP and any other applicable legal and accounting requirements.
(f) Except as set forth on Section 4.8(f) The Company, and each of the Company Disclosure Letterits Subsidiaries, there are no do not have any outstanding loans loan capital and has not engaged in nor agreed to engage in any financing or other extensions transaction or act of credit made by a type which would not be required to be shown or reflected in the Company or its Subsidiaries to any of their respective executive officers (as defined in Rule 3b-7 under the Exchange Act) or any director of the Company or its SubsidiariesFinancial Statements.
Appears in 1 contract
Sources: Business Combination Agreement (Aura Fat Projects Acquisition Corp)
Financial Statements; Internal Controls. (a) The Company has previously provided made available to Acquiror Ackrell in the Virtual Data Room true and complete copies of the audited consolidated statement balance sheets of financial position the Company as of December 31, 2019 and consolidated as of December 31, 2020, and the related statements of comprehensive income, changes in equity operations and cash flows of the Company and its Subsidiaries as for each of and for the years then ended December 31(collectively, 2023 and December 31, 2022, together with the auditor’s reports thereon, which comply in all material respects with the applicable accounting requirements (including the standards of the PCAOB) and with the rules and regulations of the SEC, the Exchange Act and the Securities Act applicable to a registrant (the “Audited Financial Statements” and the Audited Financial Statements together with the H1 Financial Statements to be delivered pursuant to this Agreement, the “Annual Financial Statements”).
(b) Except as set forth on Section 4.8(b) . Each of the Company Disclosure Letter, the Audited Annual Financial Statements (including the notes thereto) (i) fairly present was prepared in all material respects accordance with GAAP applied on a consistent basis throughout the consolidated financial position of the Company and its consolidated Subsidiaries, as at the respective dates thereof, and the consolidated results of their operations, their consolidated incomes, their consolidated changes in equity and their consolidated cash flows for the respective periods then ended indicated (except as may be indicated in the notes thereto thereto) and subject, in the case of the H1 Financial Statements, to normal year-end adjustment and the absence of footnotes), (ii) were fairly presents, in all material respects, the financial position, results of operations and cash flows of the Company as of and at the date thereof and for the period indicated therein, except as otherwise noted therein. Each of the PCAOB Audited Financials (as described in Section 10.01(b)) (including the notes thereto), when delivered in accordance with this Agreement (i) will be prepared in conformity accordance with IFRS GAAP applied on a consistent basis during throughout the periods involved indicated (subjectexcept as may be indicated in the notes thereto) and (ii) will fairly present, in all material respects, the case financial position, results of operations and cash flows of the H1 Company as of and at the date thereof and for the period indicated therein, except as otherwise noted therein.
(b) The Company has made available to Ackrell in the Virtual Data Room true and complete copies of the unaudited balance sheet of the Company as of June 30, 2021 (the “Interim Financial Statements Date”), and the related unaudited statements of operations and cash flows of the Company for the three-month period then ended (collectively, the “Interim Financial Statements”), which are attached as Section 7.07(b) of the Company Disclosure Schedule. The Interim Financial Statements were prepared in accordance with GAAP applied on a consistent basis throughout the periods indicated (except for the omission of footnotes, certain non-GAAP measures set forth therein and subject to normal year-end adjustment adjustments) and the absence of footnotes)fairly present, (iii) were prepared from, and are in accordance in all material respects withrespects, the books financial position, results of operations and records cash flows of the Company and its consolidated Subsidiaries, (iv) in the case of the Audited Financial Statements, were prepared in compliance in all material respects with the applicable accounting requirements (including the standards of the PCAOB) and with the rules and regulations of the SEC, the Exchange Act and the Securities Act applicable to a registrant, in effect as of the respective dates thereof, and (v) in the case of the H1 Financial Statements, when delivered by the Company for inclusion in the Proxy/Registration Statement for filing with the SEC following at the date of this Agreement in accordance with Section 7.3thereof and for the period indicated therein, will comply in all material respects with the applicable accounting requirements (including the standards of the PCAOB) except as otherwise noted therein and with the rules subject to normal and regulations of the SEC, the Exchange Act and the Securities Act applicable to a registrant, in effect as of the respective dates thereofrecurring year-end adjustments.
(c) The Pro Forma Except as and to the extent set forth on the Audited Annual Financial Statements willor the Interim Financial Statements, or, when provideddelivered, present fairly the PCAOB Audited Financials, the Company does not have any liability, debt or obligation of a nature (whether accrued, absolute, contingent or otherwise), whether or not required to be reflected on a consolidated balance sheet prepared in all material respects accordance with GAAP consistently applied and in accordance with past practice, except for: (i) liabilities that were incurred in the information shown thereinordinary course of business consistent with past practice since the Interim Financial Statements Date, comply (ii) liabilities or obligations disclosed in all material respects with the applicable accounting requirements (including the standards Section 7.07(c) of the PCAOBCompany Disclosure Schedule or (iii) such other liabilities and with the rules and regulations of the SECobligations which would not, the Exchange Act and the Securities Act applicable thereto, in effect as of the respective dates thereof, and will have been compiled on a basis consistent with that of the Audited Financial Statements. The assumptions, information and data used individually or in the preparation of such Pro Forma Financial Statements are aggregate, reasonably believed by the Company be expected to be reasonable in light of current conditions and facts known material to the Company. None of the Company is a party to, or has any commitment to become a party to, any contract or arrangement that would constitute an “off balance sheet arrangement” (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 pro forma adjustments used therein will be appropriate to give effect to Company on the transactions Audited Annual Financial Statements or circumstances described therein, and the pro forma adjustments will have been properly applied to the historical amounts used in the preparation of such Pro Forma Interim Financial Statements, or, when delivered, the PCAOB Audited Financials.
(d) Neither Since December 31, 2018, (i) none of the Company nor or, to the Company’s knowledge, any director director, officer, employee, auditor, accountant or officer Representative of the Company, has received or otherwise had or obtained knowledge of any complaint, allegation, assertion or claim, whether written or, to the knowledge of the Company, oral, regarding the accounting or auditing practices, procedures, methodologies or methods of the Company or its internal accounting controls, including any such complaint, allegation, assertion or claim that the Company has engaged in questionable accounting or auditing practices and (ii) there have been no internal investigations regarding accounting or revenue recognition discussed with, reviewed by or initiated at the direction of its Subsidiaries northe chief executive officer, chief financial officer, general counsel, the Company Board or any committee thereof.
(e) To the knowledge of the Company, no employee of the Company has provided or is providing information to any law enforcement agency regarding the commission or possible commission of any crime or the violation or possible violation of any applicable Law. None of the Company or, to the knowledge of the Company, any independent auditor officer, employee, contractor, subcontractor or agent of the Company has discharged, demoted, suspended, threatened, harassed or in any other manner discriminated against an employee of the Company in the terms and conditions of employment because of any act of such employee described in 18 U.S.C. sec. 1514A(a).
(f) All accounts receivable of the Company reflected on the Interim Financial Statements or arising thereafter have arisen from bona fide transactions in the ordinary course of business consistent with past practices and in accordance with GAAP and are collectible, subject to bad debts reserved in the Interim Financial Statements. To the knowledge of the Company, such accounts receivables are not subject to valid defenses, setoffs or counterclaims, other than routine credits granted for errors in ordering, shipping, pricing, discounts, rebates, returns in the ordinary course of business and other similar matters. The Company’s reserve for contractual allowances and doubtful accounts is adequate in all material respects and has been calculated in a manner consistent with past practices. Since December 31, 2020 the Company has not modified or changed in any material respect its Subsidiariessales practices or methods, including such practices or methods in accordance with which the Company sells goods, fills orders or record sales.
(g) All accounts payable of the Company reflected on the Interim Financial Statements or arising thereafter are the result of bona fide transactions in the ordinary course of business and have been paid or are not yet due or payable. Since December 31, 2020, none of the Company has altered in any material respects its practices for the payment of such accounts payable, including the timing of such payment.
(h) The Company maintain systems of internal control over financial reporting that are sufficient to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with GAAP, including policies and procedures sufficient to provide reasonable assurance: (i) that the Company maintains records that in reasonable detail accurately and fairly reflect, in all material respects, its transactions and dispositions of assets; (ii) that transactions are recorded as necessary to permit the preparation of financial statements in conformity with GAAP; (iii) that receipts and expenditures are being made only in accordance with authorizations of the Company’s management and the Company Board; and (iv) regarding prevention or timely detection of unauthorized acquisition, use or disposition of its assets that could have a material effect on its financial statements. The Company has made available to Ackrell a true and complete copy of any disclosure (or, if unwritten, a summary thereof) by any representative of the Company to the Company’s respective independent auditors relating to any material weaknesses in internal controls and any significant deficiencies in the design or operation of internal controls that would adversely affect the ability of the Company to record, process, summarize and report financial data. The Company has no knowledge of any fraud or whistle-blower allegations, whether or not material, that involve management or other employees or consultants who have or had a significant role in the internal control over financial reporting of the Company. Since December 31, 2020, there have been no material changes in the Company’s respective internal control over financial reporting.
(i) Neither the Company (including any employee thereof) nor the Company’s independent auditors has identified or been made aware of (i) any significant deficiency or material weakness in the system of internal accounting controls utilized by the Company or any of its SubsidiariesCompany, (ii) any fraud, whether or not material, that involves the Company’s respective management or other employees who have a role in the preparation of financial statements or the internal accounting controls utilized by the Company or any of its Subsidiaries or (iii) any claim or allegation regarding any of the foregoing.
(ej) The Company maintains a system does not have any Indebtedness other than the Indebtedness set forth on Schedule7.07(j), which schedule sets for the amounts (including principal and any accrued but unpaid interest or other obligations) with respect to such Indebtedness. Except as disclosed on Schedule7.07(j), no Indebtedness of internal accounting controls which the Company reasonably believes is sufficient to provide reasonable assurance that contains any restriction upon (i) transactions are executed in accordance with management’s general or specific authorizationsthe prepayment of any of such Indebtedness, (ii) transactions are recorded as necessary to permit preparation the incurrence of financial statements in conformity with IFRS and to maintain asset accountabilityIndebtedness by the Company, or (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. The books and records ability of the Company have been, and are being, maintained in all material respects in accordance with IFRS and to grant any other applicable legal and accounting requirementsLien on its properties or assets.
(f) Except as set forth on Section 4.8(f) of the Company Disclosure Letter, there are no outstanding loans or other extensions of credit made by the Company or its Subsidiaries to any of their respective executive officers (as defined in Rule 3b-7 under the Exchange Act) or any director of the Company or its Subsidiaries.
Appears in 1 contract
Sources: Business Combination Agreement (ACKRELL SPAC Partners I Co.)
Financial Statements; Internal Controls. (a) The Company has previously provided to Acquiror true Attached as Section 4.8(a) of the AARK Schedules are: true, correct and complete copies of (i) the audited reviewed consolidated statement of financial position positions and consolidated statements of comprehensive income, changes in equity and cash flows of the Company and its Subsidiaries, with the absence of year-end audit adjustments and footnotes, as of and for the years ended March, 31, 2022 and March 31, 2021, (together with the PCAOB Company Financial Statements, when delivered pursuant to Section 6.3, the “Audited Company Financial Statements”) and (ii) the unaudited consolidated statement of financial positions and consolidated statements of comprehensive income, changes in equity and cash flows of the Company and its Subsidiaries as of and for the years ended December 31six-month period ending September 30, 2023 and December 31, 2022, together with the auditor’s reports thereon, which comply in all material respects with the applicable accounting requirements (including the standards of the PCAOB) and with the rules and regulations of the SEC, the Exchange Act and the Securities Act applicable to a registrant 2022 (the “Audited Interim Company Financial Statements” and the Audited Financial Statements together with the H1 Audited Company Financial Statements to be delivered pursuant to this AgreementStatements, the “Company Financial Statements”).
(b) Except as set forth on Section 4.8(b) of the Company Disclosure LetterAARK Schedules, at the Closing, the Company Financial Statements (i) fairly present in all material respects the consolidated financial position of the Company and its consolidated Subsidiaries, as at the respective dates thereof, and the consolidated results of their operations, their consolidated incomes, their consolidated changes in equity and their consolidated cash flows for the respective periods then ended (subject, in the case of the Company Financial Statements, to normal year-end adjustment (none of which would be material individually or in the aggregate) and the absence of footnotes ), (ii) were prepared in conformity with the Generally Accepted Accounting Principles in India (“Indian GAAP”) on a consistent basis during the periods involved (except as may be indicated in the notes thereto and subject, in the case of the H1 Financial Statements, to normal year-end adjustment and the absence of footnotes), (ii) were prepared in conformity with IFRS applied on a consistent basis during the periods involved (subject, in the case of the H1 Company Financial Statements, to normal year-end adjustment and the absence of footnotes), (iii) were prepared from, and are in accordance in all material respects with, the books and records of the Company and its consolidated Subsidiaries, Subsidiaries and (iv) in the case of the Audited Updated Company Financial Statements, were prepared in compliance in all material respects with the applicable accounting requirements (including the standards of the PCAOB) and with the rules and regulations of the SEC, the Exchange Act and the Securities Act applicable to a registrant, in effect as of the respective dates thereof, and (v) in the case of the H1 Financial Statements, Statements when delivered by the Company for inclusion in the Proxy/Registration Statement for filing with the SEC following the date of this Agreement in accordance with Section 7.36.3, will comply in all material respects with the applicable accounting requirements (including the standards of the PCAOB) and with the rules and regulations of the SEC, the Exchange Act and the Securities Act applicable to a registrant, in effect as of the respective dates thereof.
(c) The Pro Forma Company Financial Statements will, when provided, present fairly in all material respects the information shown therein, comply in all material respects with the applicable accounting requirements (including the standards of the PCAOB) and with the rules and regulations of the SEC, the Exchange Act and the Securities Act applicable thereto, in effect as of the respective dates thereof, therein and will have been compiled on a basis consistent with that of the Audited Company Financial Statements. The assumptions, information and data used in the preparation of such Pro Forma Company Financial Statements are reasonably believed by the Company to be reasonable in light of current conditions and facts known to the Company, the pro forma adjustments used therein will be appropriate to give effect to the transactions or circumstances described therein, and the pro forma adjustments will have been properly applied to the historical amounts used in the preparation of such Pro Forma Company Financial Statements.
(d) Neither Attached as Section 4.8(d) of the AARK Schedules are: true, correct and complete copies of (i) the reviewed consolidated carve-out statement of financial positions and consolidated carve-out statements of comprehensive income and cash flows of the AARK Business as of and for the years ended March 31, 2022 and March 31, 2021 (together with the PCAOB AARK Financial Statements, when delivered pursuant to Section 6.3, the “Audited AARK Financial Statements”) and (ii) the unaudited consolidated carve-out statement of financial positions and consolidated carve-out statements of comprehensive income and cash flows of the AARK Business as of and for the six-month period ending September 30, 2022 (the “Interim AARK Financial Statements” and together with the Audited Company Financial Statements, the “AARK Financial Statements”).
(e) Except as set forth on Section 4.8(e) of the AARK Schedules, at the Closing, the AARK Financial Statements (i) fairly present in all material respects the consolidated financial position of the AARK Business, as at the respective dates thereof, and the consolidated results of the operations, consolidated incomes and consolidated cash flows of the AARK Business for the respective periods then ended (subject, in the case of the AARK Financial Statements, to normal year-end adjustment (none of which would be material individually or in the aggregate) and the absence of footnotes ), (ii) were prepared in conformity with GAAP on a consistent basis during the periods involved (except as may be indicated in the notes thereto and subject, in the case of the AARK Financial Statements, to normal year-end adjustment and the absence of footnotes), (iii) were prepared from, and are in accordance in all material respects with, the books and records of AARK and (iv) in the case of the Updated AARK Financial Statements when delivered by AARK for inclusion in the Proxy/Registration Statement for filing with the SEC following the date of this Agreement in accordance with Section 6.3, will comply in all material respects with the applicable accounting requirements (including the standards of PCAOB) and with the rules and regulations of the SEC, the Exchange Act and the Securities Act applicable to a registrant, in effect as of the respective dates thereof. The AARK Financial Statements are presented on a carve-out basis to include the historical financial position and results of operations applicable to the AARK Business. The allocation of costs and expenses included in the AARK Financial Statements represent only a reasonable allocation methodology and are not necessarily indicative of the costs and expenses that would have resulted if the AARK Business had been operating as a separate entity or on a standalone basis.
(f) The Pro Forma AARK Financial Statements will, when provided, present fairly in all material respects the information shown therein and will have been compiled on a basis consistent with that of the AARK Financial Statements. The assumptions, information and data used in the preparation of such Pro Forma AARK Financial Statements are reasonably believed by AARK to be reasonable in light of current conditions and facts known to AARK, the pro forma adjustments used therein will be appropriate to give effect to the transactions or circumstances described therein, and the pro forma adjustments will have been properly applied to the historical amounts used in the preparation of such Pro Forma AARK Financial Statements.
(g) No Group Company, nor any director or officer of the Company or any of its Subsidiaries a Group Company, nor, to the knowledge of the Company, any independent auditor of the Company or its Subsidiariesa Group Company, has identified or been made aware of (i) any significant deficiency or material weakness in the system of internal accounting controls utilized by the Company or any of its Subsidiarieseach Group Company, (ii) any fraud, whether or not material, that involves the a Group Company’s management or other employees who have a role in the preparation of financial statements or the internal accounting controls utilized by the each Group Company or any of its Subsidiaries or (iii) any claim or allegation regarding any of the foregoing.
(eh) The books of account and other financial records of the Group Companies have been kept accurately in all material respects in the ordinary course of business, the transactions entered therein represent bona fide transactions, and the revenues, expenses, assets and liabilities of the Group Companies have been properly recorded therein in all material respects. Except as set forth on Section 4.8(h) of the AARK Schedules, there has been no change in the accounting methods or practices of any Group Company maintains since the Most Recent Balance Sheet Date. The Group Companies have established and maintain a system of internal accounting controls which the Company are reasonably believes is sufficient to provide reasonable assurance that (i) transactions transactions, receipts and expenditures of the Group Companies are executed in accordance with management’s general or specific authorizationsauthorizations and in accordance with applicable Laws, (ii) transactions are recorded as necessary to permit preparation of financial statements in conformity with IFRS Indian GAAP, as applicable, and to maintain asset accountability, (iii) access to assets is permitted only in accordance with management’s general or specific authorization and authorization, (iv) the recorded accountability for assets is compared with the existing assets at reasonable intervals and appropriate action is taken with respect to any differencesdifferences and (v) that accounts, notes and other receivables and inventory are recorded accurately. The books and records of the Company Group Companies have been, and are being, maintained in all material respects in accordance with IFRS Indian GAAP, as applicable, and any other applicable legal and accounting requirements.
(fi) Except All accounts receivable of the Group Companies (i) are bona fide and valid receivables arising from sales actually made or services actually performed and arising in the ordinary course of business, (ii) are properly reflected on the books and records of the Group Companies and (iii) are not subject to any setoffs, counterclaims, credits or other offsets which are not reflected on the balance sheet of such Group Company as set forth of the Most Recent Balance Sheet Date. No Person has any Lien on any accounts receivable or any part thereof, and no agreement for deduction, free goods or services, discount or other deferred price or quantity adjustment has been made by the Group Companies with respect to any accounts receivable other than in the ordinary course of business. No accounts receivable of the Group Companies, nor any part thereof, are related to the pre-billing of any customers.
(j) All accounts payable of the Group Companies, whether reflected on the Financial Statements or subsequently created, are valid payables that have arisen from bona fide transactions in the ordinary course of business of the Group Companies. Since the Most Recent Balance Sheet Date, the Group Companies have paid their accounts payable in the ordinary course of business.
(k) Section 4.8(f4.8(k) of the Company Disclosure LetterAARK Schedules sets forth a true, there are no outstanding loans or other extensions of credit made by the Company or its Subsidiaries to any of their respective executive officers (as defined in Rule 3b-7 under the Exchange Act) or any director correct and complete list all of the Company or its SubsidiariesIndebtedness of the Group Companies, including the identity of any obligor and/or guarantor, the aggregate principal and interest owed in respect thereof and the maturity of each such instrument, as of the date that is one day prior to the date of this Agreement.
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Sources: Business Combination Agreement (Worldwide Webb Acquisition Corp.)
Financial Statements; Internal Controls. (a) The Company has previously provided to Acquiror true and complete copies of the audited consolidated statement of financial position and consolidated statements of comprehensive income, changes in equity and cash flows balance sheet of the Company and its Subsidiaries as of December 31, 2023, and the related audited consolidated statements of operations, stockholders’ equity, and cash flows for the years fiscal year ended December 31, 2023 and December 31, 2022, together with the auditor’s reports thereon, which comply in all material respects with the applicable accounting requirements (including the standards consolidated balance sheet of the PCAOB) Company and with the rules and regulations its Subsidiaries as of the SECSeptember 30, the Exchange Act 2024, and the Securities Act applicable to a registrant related consolidated statements of operations, stockholders’ equity, and cash flows for the fiscal quarter ended September 30, 2024 (the “Audited Financial Statements” and the Audited Financial Statements together with the H1 Financial Statements to be delivered pursuant to this Agreementcollectively, the “Financial Statements”).
, were prepared in accordance with GAAP, applied on a consistent basis for the periods involved (b) Except except as set forth on Section 4.8(b) of the Company Disclosure Letterotherwise expressly noted therein), and fairly present, the Financial Statements (i) fairly present in all material respects the consolidated financial position of the Company and its consolidated Subsidiaries, Subsidiaries as at of the respective dates thereof, thereof and the consolidated results of their operations, their consolidated incomes, their consolidated changes in equity and their consolidated cash flows operations for the respective periods then ended (except as may be indicated in the notes thereto and subject, in the case of the H1 Financial Statements, to normal year-end adjustment and the absence of footnotesotherwise expressly noted therein). Except as set forth on Schedule 3.12(a), (ii) were prepared in conformity with IFRS applied on a consistent basis during the periods involved (subject, in the case of the H1 Financial Statements, to normal year-end adjustment and the absence of footnotes), (iii) were prepared from, and there are in accordance in all material respects with, the books and records of the Company and its consolidated Subsidiaries, (iv) in the case of the Audited Financial Statements, were prepared in compliance in all material respects with the applicable accounting requirements (including the standards of the PCAOB) and with the rules and regulations of the SEC, the Exchange Act and the Securities Act applicable to a registrant, in effect as of the respective dates thereof, and (v) in the case of the H1 Financial Statements, when delivered by the Company for inclusion in the Proxy/Registration Statement for filing with the SEC following the date of this Agreement in accordance with Section 7.3, will comply in all material respects with the applicable accounting requirements (including the standards of the PCAOB) and with the rules and regulations of the SEC, the Exchange Act and the Securities Act applicable to a registrant, in effect as of the respective dates thereof.
(c) The Pro Forma Financial Statements will, when provided, present fairly in all material respects the information shown therein, comply in all material respects with the applicable accounting requirements (including the standards of the PCAOB) and with the rules and regulations of the SEC, the Exchange Act and the Securities Act applicable thereto, in effect as of the respective dates thereof, and will have been compiled on a basis consistent with that of the Audited Financial Statements. The assumptions, information and data used in the preparation of such Pro Forma Financial Statements are reasonably believed by the Company to be reasonable in light of current conditions and facts known to the Company, the pro forma adjustments used therein will be appropriate to give effect to the transactions no liabilities or circumstances described therein, and the pro forma adjustments will have been properly applied to the historical amounts used in the preparation of such Pro Forma Financial Statements.
(d) Neither the Company nor any director or officer of the Company or any of its Subsidiaries nor, to the knowledge of the Company, any independent auditor obligations of the Company or its Subsidiaries of the type required to be accrued on or reserved against in a consolidated balance sheet prepared in accordance with GAAP, other than (a) liabilities or obligations set forth on the face of the balance sheet as of September 30, 2024 included in the Financial Statements (such balance sheet, the “Most Recent Balance Sheet”), (b) liabilities or obligations which were incurred in the Ordinary Course of Business after the date of the Most Recent Balance Sheet (none of which are liabilities or obligations resulting from violations of Law or breaches of Contract), (c) liabilities or obligations incurred in connection with the transactions contemplated by the Definitive Documents, and (d) liabilities or obligations that, individually or in the aggregate, are not material to the Company Entities, taken as a whole. To the Knowledge of the Company, there have been no instances of fraud by any Company Entity that occurred during any period covered by the Financial Statements that would reasonably be expected to be material to the Company and its Subsidiaries, taken as a whole.
(b) As of the date hereof, the Company has identified or been made aware of (i) any significant deficiency or material weakness in the established and maintains a system of internal accounting controls utilized by control over financial reporting (as defined in Rules 13a-15(f) and 15d-15(f) promulgated under the Company or any Exchange Act) that complies with the requirements of its Subsidiariesthe Exchange Act and will continue to maintain a system of internal control over financial reporting, (ii) any fraud, whether or not material, that involves in each case which has been designed to provide reasonable assurances regarding the Company’s management or other employees who have a role in reliability of financial reporting and the preparation of financial statements or for external purposes in accordance with GAAP. From the internal accounting controls utilized by date hereof through the Plan Effective Date, the Company or any of its Subsidiaries or (iii) any claim or allegation regarding any of the foregoing.
(e) The Company maintains has continued to maintain a system of internal control over financial reporting, including (i) making and keeping accurate books and records and (ii) maintaining internal accounting controls which the Company reasonably believes is sufficient to that provide reasonable assurance that (iA) transactions are executed in accordance with management’s general or specific authorizationsauthorization, (iiB) transactions are recorded as necessary to permit preparation of its financial statements in conformity with IFRS and to maintain asset accountabilityaccountability for its assets, (iiiC) access to its assets is permitted only in accordance with management’s general or specific authorization authorization, and (ivD) the recorded reported accountability for its assets is compared with the existing assets at reasonable intervals and appropriate action is taken with respect to any differences. The books and records of the Company have been, and are being, maintained in all material respects in accordance with IFRS and any other applicable legal and accounting requirements.
(fc) Except To the Knowledge of the Company, the Company does not have any material weakness in their internal control over financial reporting, other than any such material weaknesses with respect to which a plan for remediation has been established and other than as set forth on Section 4.8(fin Schedule 3.12(b) or disclosed in the Company SEC Documents.
(d) As of the Company Disclosure Letterdate hereof, there are no outstanding loans or other extensions of credit made by the Company or its Subsidiaries to any maintains disclosure controls and procedures (within the meaning of their respective executive officers (as defined in Rule 3b-7 Rules 13a-15(e) and 15d-15(e) promulgated under the Exchange Act) or any director that are designed to ensure that information required to be disclosed by the Company in the reports that they file and submit under the Exchange Act is recorded, processed, summarized and reported within the time periods specified in the SEC’s rules and forms, including that information required to be disclosed by the Company in the reports that it files and submits under the Exchange Act is accumulated and communicated to management of the Company or its SubsidiariesEntities as appropriate to allow timely decisions regarding required disclosure, and such disclosure controls and procedures are effective.
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