Financial Statements; Internal Controls. (a) Seller has previously delivered to Buyer true, correct and complete copies of (i) audited statements of financial condition of N.I.S. as of December 31, 2016 and December 31, 2017 (together with all material supporting documents of N.I.S. in connection therewith); (ii) audited statements of income, changes in stockholder's equity and cash flows for the years ended December 31, 2016 and December 31, 2017; (iii) an unaudited balance sheet of N.I.S. as of June 30, 2018 (the “N.I.S. Reference Balance Sheet”); and (iv) the unaudited statements of income, changes in stockholder's equity and cash flows of N.I.S. for the three months ended June 30, 2018 (collectively, the foregoing financial statements, and together with the Subsequent GAAP Financial Statements, the “GAAP Financial Statements”). Subject to the notes thereto, the GAAP Financial Statements (A) were or, in the case of the Subsequent GAAP Financial Statements, will be derived from the Books and Records of N.I.S., (B) were or, in the case of the Subsequent GAAP Financial Statements, will be prepared in accordance with GAAP, consistently applied throughout all such periods, and (C) fairly present or, in the case of the Subsequent GAAP Financial Statements, will fairly present, in all material respects, the financial position, results of operations, cash flows and changes in stockholder's equity of N.I.S. as of the respective dates and for the respective periods referred to in the GAAP Financial Statements subject to, with respect to the unaudited GAAP Financial Statements, normal year-end adjustments, none of which, individually or in the aggregate, are or, in the case of the Subsequent GAAP Financial Statements, will be material, and the absence of footnotes. (b) Seller has previously delivered to Buyer true, correct and complete copies of (i) the audited annual statutory financial statements of Ozark as of and for the years ended December 31, 2016 and December 31, 2017 (together with all material supporting documents in connection therewith) and (ii) the unaudited quarterly statutory financial statement of Ozark as of June 30, 2018 (the balance sheet contained in such unaudited quarterly statutory financial statement for the period ending June 30, 2018, the “Ozark Reference Balance Sheet”) (collectively, and together with the Subsequent SAP Financial Statements, the “Statutory Statements”). No Governmental Entity has requested the refiling or amending of any Statutory Statement. Subject to the notes thereto, the Statutory Statements (A) were derived from, prepared using, and in all material respects are consistent with or, in the case of the Subsequent SAP Financial Statements, will be derived from, will be prepared using, and in all material respects will be consistent with, the Books and Records of Ozark; (B) were or, in the case of the Subsequent SAP Financial Statements, will be prepared in accordance with SAP, consistently applied throughout all such periods, and (C) fairly present or, in the case of the Subsequent SAP Financial Statements, will fairly present, in all material respects, the statutory financial position, admitted assets, liabilities and capital and surplus of Ozark at their respective dates and the results of operations, changes in surplus and cash flows of Ozark at and for the respective periods indicated and the results of operations, cash flows and changes in stockholder's equity of Ozark as of the respective dates and for the respective periods referred to in the Statutory Statements subject to, with respect to the unaudited Statutory Statements, normal year-end adjustments, none of which, individually or in the aggregate, are or, in the case of the Subsequent SAP Financial Statements, will be material. No material weakness or significant deficiency has been asserted by any Governmental Entity, or been determined to exist by Ozark management or the Ozark's independent registered public accounting firm, with respect to any of the Statutory Statements previously delivered to Buyer and there are no permitted accounting practices granted by any Insurance Regulator that were utilized in the preparation of such Statutory Statements. (c) The N.I.S. Estimated Balance Sheet will be (i) derived from, prepared using, and in all material respects consistent with, the Books and Records of N.I.S.; (ii) determined in accordance with GAAP applied on a consistent basis with the periods presented in the GAAP Financial Statements previously delivered to Buyer (except to the extent of any adjustments to GAAP or the application thereof expressly embodied in the N.I.S. Accounting Principles); and (iii) prepared in accordance with the N.I.S. Accounting Principles and using the same accounting and actuarial methodologies and assumptions, and in each case the application thereof, Seller used in preparing the N.I.S.
Appears in 1 contract
Sources: Stock Purchase Agreement (National Western Life Group, Inc.)
Financial Statements; Internal Controls. (a) Seller has previously delivered Attached to Buyer true, correct and complete copies this Agreement as Section 5.6(a) of the Disclosure Schedule are (i) the Company’s audited statements consolidated balance sheet, statement of financial condition operation, statement of N.I.S. comprehensive income, statement of changes of stockholders’ equity, statement of cash flows and notes as of December 31, 2016 2006 and December 31for the fiscal year then ended, 2017 (together with all material supporting documents of N.I.S. in connection therewith); (ii) the Company’s audited statements consolidated balance sheet, statement of incomeoperation, statement of comprehensive loss, statement of changes in stockholder's equity and of stockholders’ equity, statement of cash flows and notes as of January 1, 2006 and for the years ended December 31fifteen (15) months then ended, 2016 and December 31, 2017; (iii) an unaudited the Company’s audited consolidated balance sheet sheet, statement of N.I.S. operation, statement of comprehensive loss, statement of changes of stockholders’ equity, statement of cash flows and notes as of June 30September 26, 2018 (the “N.I.S. Reference Balance Sheet”); 2004 and (iv) the unaudited statements of income, changes in stockholder's equity and cash flows of N.I.S. for the three months ended June 30fiscal year then ended, 2018 together in each case with the opinion of ▇▇▇▇▇▇ & ▇▇▇▇▇▇, Inc., auditors of the Company (collectively, the foregoing financial statements, and together with the Subsequent GAAP Financial Statements, the “GAAP Audited Financial Statements”). Subject to the notes thereto, the GAAP The Audited Financial Statements (A) were or, in the case of the Subsequent GAAP Financial Statements, will be derived from the Books and Records of N.I.S., (B) were or, in the case of the Subsequent GAAP Financial Statements, will be prepared in accordance with GAAP, consistently applied throughout all such periods, and (C) fairly present or, in the case of the Subsequent GAAP Financial Statements, will fairly present, in all material respects, the financial position, results position of operations, cash flows and changes in stockholder's equity of N.I.S. the Company as of the respective dates thereof and the results of operations and the cash flows of the Company for the respective periods referred to covered and have been prepared in the accordance with GAAP applied on a consistent basis. The Financial Statements subject to, with respect to have been certified without qualification by the unaudited GAAP Financial Statements, normal year-end adjustments, none of which, individually or in the aggregate, are or, in the case independent certified public accountants of the Subsequent GAAP Financial Statements, will be material, and the absence of footnotesCompany.
(b) Seller has previously delivered Attached to Buyer true, correct and complete copies this Agreement as Section 5.6(b) of (i) the audited annual statutory financial statements of Ozark as of and for the years ended December 31, 2016 and December 31, 2017 (together with all material supporting documents in connection therewith) and (ii) Disclosure Schedule is the unaudited quarterly statutory financial statement balance sheet of Ozark the Company as of June 30, 2018 2007 (the balance sheet contained in such unaudited quarterly statutory financial statement for the period ending June 30, 2018, the “Ozark Reference Latest Balance Sheet”) (collectively), and together with the Subsequent SAP Financial Statementsrelated unaudited statement of income for the six-month period then-ended and any other information included therein, in each case prepared by the Company (the “Statutory Interim Financial Statements”). No Governmental Entity has requested the refiling or amending of any Statutory Statement. Subject to the notes thereto, the Statutory The Interim Financial Statements (A) were derived from, prepared using, and in all material respects are consistent with or, in the case of the Subsequent SAP Financial Statements, will be derived from, will be prepared using, and in all material respects will be consistent with, the Books and Records of Ozark; (B) were or, in the case of the Subsequent SAP Financial Statements, will be prepared in accordance with SAP, consistently applied throughout all such periods, GAAP and (C) fairly present or, in the case of the Subsequent SAP Financial Statements, will fairly present, in all material respects, the statutory financial position, admitted assets, liabilities and capital and surplus position of Ozark at their respective dates the Company as of the date thereof and the results of operations, changes in surplus and cash flows operations of Ozark at and the Company for the respective periods indicated and the results of operationsperiod ending June 30, cash flows and changes in stockholder's equity of Ozark as of the respective dates and 2007, except for the respective periods referred to in the Statutory Statements subject to, with respect to the unaudited Statutory Statements, absence of footnotes and normal year-end adjustments, none of which, individually or in the aggregate, which are or, in the case of the Subsequent SAP Financial Statements, will not reasonably expected to be material. No material weakness or significant deficiency has been asserted by any Governmental Entity, or been determined The Audited Financial Statements and the Interim Financial Statements are sometimes collectively referred to exist by Ozark management or as the Ozark's independent registered public accounting firm, with respect to any of the Statutory Statements previously delivered to Buyer and there are no permitted accounting practices granted by any Insurance Regulator that were utilized in the preparation of such Statutory “Financial Statements.”
(c) The N.I.S. Estimated Balance Sheet will be To the knowledge of the Company, (i) derived fromthe Company has not received any allegations of fraud or suspected fraud affecting the Company in communications from employees, prepared usingformer employees, analysts, regulators, short sellers, or others, and in all material respects consistent with, the Books and Records of N.I.S.; (ii) determined in accordance with GAAP applied on a consistent basis with the periods presented there are no significant deficiencies, including material weaknesses, in the GAAP Financial Statements previously delivered design or operation of internal controls that could adversely affect the Company’s ability to Buyer (except to the extent of any adjustments to GAAP or the application thereof expressly embodied in the N.I.S. Accounting Principles); and (iii) prepared in accordance with the N.I.S. Accounting Principles and using the same accounting and actuarial methodologies and assumptionsrecord, process, summarize, and in each case the application thereof, Seller used in preparing the N.I.S.report financial data.
Appears in 1 contract
Sources: Merger Agreement (Aar Corp)
Financial Statements; Internal Controls. (a) Seller has previously delivered to Buyer true, correct and complete copies The following financial statements are attached as Section 2.3 of the Company Disclosure Schedule: (i) the audited consolidated financial statements of financial condition of N.I.S. the Company and its Subsidiaries as of December 31, 2016 2010 and December 312009, 2017 (including the balance sheet and the related statements of operations, statements of changes in stockholders’ equity and statements of cash flows of the Company and its Subsidiaries as of and for the fiscal years then ended, including in each case the notes thereto, together with all material supporting documents the report of N.I.S. in connection therewith); (ii) audited statements of income, changes in stockholder's equity and cash flows for the years ended December 31, 2016 and December 31, 2017; (iii) an unaudited balance sheet of N.I.S. as of June 30, 2018 independent certified public accounting firm set forth therein (the “N.I.S. Reference Balance SheetAudited Financial Statements”); and (ivii) the unaudited financial statements of incomethe Company and its Subsidiaries as of February 28, 2011, including the balance sheet and the related statement of operations, statement of changes in stockholder's stockholders’ equity and statement of cash flows of N.I.S. the Company and its Subsidiaries as of and for the three months two (2) month period then ended June 30(such financial statements, 2018 the “Unaudited Financial Statements”; the balance sheet of the Company and its Subsidiaries as of February 28, 2011, the “Reference Balance Sheet”; the date of the Reference Balance Sheet, the “Reference Balance Sheet Date”); (the Audited Financial Statements and the Unaudited Financial Statements, collectively, the foregoing financial statements, and together with the Subsequent GAAP Financial Statements, the “GAAP Financial Statements”). Subject to the notes thereto, the GAAP The Financial Statements (A) were or, in the case of the Subsequent GAAP Financial Statements, will be derived from the Books and Records of N.I.S., (B) were or, in the case of the Subsequent GAAP Financial Statements, will be have been prepared in accordance with GAAP, consistently applied throughout all such periods, and (C) fairly present orexcept, in the case of the Subsequent GAAP Unaudited Financial Statements, will for the absence of footnotes (that, if presented, would not differ materially from those included in the Audited Financial Statements) and normal recurring year end adjustments). The Financial Statements fairly present, in all material respects, the financial position, position of the Company and its Subsidiaries and the results of operations, cash flows operations and changes in stockholder's equity of N.I.S. cash flows as of the respective dates and for the respective periods referred to in the GAAP specified. The Financial Statements subject to, with respect to the unaudited GAAP Financial Statements, normal year-end adjustments, none of which, individually or in the aggregate, are or, in the case of the Subsequent GAAP Financial Statements, will be material, and the absence of footnotes.
(b) Seller has previously delivered to Buyer true, correct and complete copies of (i) the audited annual statutory financial statements of Ozark as of and for the years ended December 31, 2016 and December 31, 2017 (together with all material supporting documents in connection therewith) and (ii) the unaudited quarterly statutory financial statement of Ozark as of June 30, 2018 (the balance sheet contained in such unaudited quarterly statutory financial statement for the period ending June 30, 2018, the “Ozark Reference Balance Sheet”) (collectively, and together with the Subsequent SAP Financial Statements, the “Statutory Statements”). No Governmental Entity has requested the refiling or amending of any Statutory Statement. Subject to the notes thereto, the Statutory Statements (A) were derived from, prepared using, and in all material respects are consistent with or, in the case of the Subsequent SAP Financial Statements, will be derived from, will be prepared using, and in all material respects will be consistent with, the Books and Records of Ozark; (B) were or, in the case of the Subsequent SAP Financial Statements, will be have been prepared in accordance with SAP, consistently applied throughout all such periods, the books and records of the Company and its Subsidiaries. The Company and its Subsidiaries have made and kept (Cand given Parent access to their) fairly present orbooks and records and accounts, in the case of the Subsequent SAP Financial Statementsaccordance with applicable Legal Requirements, will which accurately and fairly presentreflect, in all material respects, the statutory financial position, admitted assets, liabilities activities of Company and capital and surplus of Ozark at their respective dates and the results of operations, changes in surplus and cash flows of Ozark at and for the respective periods indicated and the results of operations, cash flows and changes in stockholder's equity of Ozark as of the respective dates and for the respective periods referred to in the Statutory Statements subject to, with respect to the unaudited Statutory Statements, normal year-end adjustments, none of which, individually or in the aggregate, are or, in the case of the Subsequent SAP Financial Statements, will be material. No material weakness or significant deficiency has been asserted by any Governmental Entity, or been determined to exist by Ozark management or the Ozark's independent registered public accounting firm, with respect to any of the Statutory Statements previously delivered to Buyer and there are no permitted accounting practices granted by any Insurance Regulator that were utilized in the preparation of such Statutory Statementsits Subsidiaries.
(cb) The N.I.S. Estimated Balance Sheet will be Neither the Company, any Subsidiary of the Company, nor, to the Knowledge of the Company, any director, officer, employee, auditor, accountant or representative of the Company or any Subsidiary of the Company, has within the last three (i3) derived fromyears received or has otherwise had or obtained Knowledge of any material complaint, prepared usingallegation, and in all material respects consistent with, the Books and Records of N.I.S.; assertion or claim (ii) determined in accordance with GAAP applied on a consistent basis with the periods presented other than discussions among accounting professionals in the GAAP Financial Statements previously delivered to Buyer (except to ordinary course which were resolved in the extent ordinary course), whether written or oral, regarding the accounting or auditing practices, procedures, methodologies or methods of the Company or any Subsidiary of the Company or internal control over financial reporting of the Company and its Subsidiaries, including knowledge of any adjustments to GAAP material complaint, allegation, assertion or claim that the application thereof expressly embodied Company or any Subsidiary of the Company has engaged in the N.I.S. Accounting Principles); and (iii) prepared in accordance with the N.I.S. Accounting Principles and using the same questionable or improper accounting and actuarial methodologies and assumptions, and in each case the application thereof, Seller used in preparing the N.I.S.practices.
Appears in 1 contract
Sources: Merger Agreement (Amsurg Corp)
Financial Statements; Internal Controls. (a) Seller HSBI has previously delivered or made available to Buyer true, correct and complete FBMS copies of HSBI’s (i) audited consolidated financial statements of financial condition of N.I.S. as of December 31, 2016 (including the related notes and December 31, 2017 (together with all material supporting documents of N.I.S. in connection therewith); (iischedules thereto) audited statements of income, changes in stockholder's equity and cash flows for the years ended December 31, 2016 2021, 2020 and December 312019, 2017; accompanied by the unqualified audit reports of W▇▇▇▇▇ LLP, independent registered accountants (iii) an unaudited balance sheet of N.I.S. as of June 30collectively, 2018 (the “N.I.S. Reference Balance SheetAudited Financial Statements”); ) and (ivii) unaudited interim consolidated financial statements (including the unaudited statements of income, changes in stockholder's equity related notes and cash flows of N.I.S. schedules thereto) for the three months ended June 30March 31, 2018 2022 (collectively, the foregoing financial statements, “Unaudited Financial Statements” and together collectively with the Subsequent GAAP Audited Financial Statements, the “GAAP Financial Statements”). Subject to the notes thereto, the GAAP The Audited Financial Statements (Aincluding any related notes and schedules thereto) were or, in the case of the Subsequent GAAP Financial Statements, will be derived from the Books and Records of N.I.S., (B) were or, in the case of the Subsequent GAAP Financial Statements, will be prepared in accordance with GAAP, consistently applied throughout all such periods, and (C) fairly present or, in the case of the Subsequent GAAP Financial Statements, will fairly present, in all material respects, the financial position, results of operations, cash flows and changes in stockholder's equity of N.I.S. as of the respective dates and for the respective periods referred to in the GAAP Financial Statements subject to, with respect to the unaudited GAAP Financial Statements, normal year-end adjustments, none of which, individually or in the aggregate, are or, in the case of the Subsequent GAAP Financial Statements, will be material, and the absence of footnotes.
(b) Seller has previously delivered to Buyer true, correct accurate and complete copies of (i) the audited annual statutory financial statements of Ozark as of and for the years ended December 31, 2016 and December 31, 2017 (together with all material supporting documents in connection therewith) and (ii) the unaudited quarterly statutory financial statement of Ozark as of June 30, 2018 (the balance sheet contained in such unaudited quarterly statutory financial statement for the period ending June 30, 2018, the “Ozark Reference Balance Sheet”) (collectively, and together with the Subsequent SAP Financial Statements, the “Statutory Statements”). No Governmental Entity has requested the refiling or amending of any Statutory Statement. Subject to the notes thereto, the Statutory Statements (A) were derived from, prepared using, and in all material respects are consistent with or, in the case of the Subsequent SAP Financial Statements, will be derived from, will be prepared using, and fairly present in all material respects will be consistent with, the Books and Records of Ozark; (B) were or, in the case of the Subsequent SAP Financial Statements, will be prepared in accordance with SAP, consistently applied throughout all such periods, and (C) fairly present or, in the case of the Subsequent SAP Financial Statements, will fairly present, in all material respects, the statutory financial position, admitted assets, liabilities and capital and surplus of Ozark at their respective dates condition and the results of operations, changes in surplus shareholders’ equity, and cash flows of Ozark at HSBI and for the respective periods indicated and the results of operations, cash flows and changes in stockholder's equity of Ozark its consolidated Subsidiaries as of the respective dates of and for the respective periods referred to in such financial statements, all in accordance with GAAP, consistently applied. The Unaudited Financial Statements are accurate and complete in all material respects and fairly present in all material respects the Statutory Statements financial condition and the results of operations of HSBI and its consolidated Subsidiaries as of the respective dates of and for the periods referred to in such financial statements, all in accordance with GAAP, consistently applied, subject toto normal, with respect to the unaudited Statutory Statements, normal recurring year-end adjustmentsadjustments (the effect of which has not had, none of whichand would not reasonably be expected to have, individually or in the aggregate, are or, in the case of the Subsequent SAP Financial Statements, will be material. No material weakness or significant deficiency has been asserted by any Governmental Entity, or been determined to exist by Ozark management or the Ozark's independent registered public accounting firm, a Material Adverse Effect with respect to HSBI), the absence of statements of changes in shareholders’ equity and statements of cash flow, and the absence of notes and schedules (that, if presented, would not differ materially from those included in the Audited Financial Statements). No financial statements of any entity or enterprise other than the HSBI’s Subsidiaries are required by GAAP to be included in the consolidated financial statements of HSBI. The audits of HSBI have been conducted in accordance with GAAP. Since December 31, 2019, neither HSBI nor any of its Subsidiaries has any liabilities or obligations of a nature that would be required by GAAP to be set forth on its consolidated balance sheet or in the Statutory notes thereto except for liabilities reflected or reserved against in the Financial Statements previously delivered and current liabilities incurred in the Ordinary Course of Business since December 31, 2019. True, correct and complete copies of the Financial Statements have been made available to Buyer FBMS prior to the date of this Agreement.
(b) The records, systems, controls, data and there information of HSBI and its Subsidiaries are no permitted 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 HSBI or its Subsidiaries or accountants (including all means of access thereto and therefrom), except to the extent such records are stored and maintained by third party data processors. HSBI and its Subsidiaries have devised and maintain a system of internal accounting practices granted by any Insurance Regulator that were utilized in controls sufficient to provide reasonable assurances regarding the reliability of financial reporting and the preparation of such Statutory Statementsfinancial statements in accordance with GAAP. HSBI has disclosed based on its most recent evaluations, to its outside auditors and the audit committee of the board of directors of HSBI (i) all known significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect HSBI’s ability to record, process, summarize and report financial data and (ii) any known fraud, whether or not material, that involves management or other employees who have a significant role in HSBI’s internal control over financial reporting.
(c) The N.I.S. Estimated Balance Sheet will be (i) derived fromSince January 1, prepared using2019, and neither HSBI nor any of its Subsidiaries nor, to HSBI’s Knowledge, any director, officer, employee, auditor, accountant or representative of HSBI or any of its Subsidiaries has received, or otherwise had or obtained Knowledge of, any material complaint, allegation, assertion or claim regarding the accounting or auditing practices, procedures, methodologies or methods of HSBI or any of its Subsidiaries or their respective internal accounting controls, including any material complaint, allegation, assertion or claim that HSBI or any of its Subsidiaries has engaged in all material respects consistent with, the Books and Records of N.I.S.; (ii) determined in accordance with GAAP applied on a consistent basis with the periods presented in the GAAP Financial Statements previously delivered to Buyer (except to the extent of any adjustments to GAAP questionable accounting or the application thereof expressly embodied in the N.I.S. Accounting Principles); and (iii) prepared in accordance with the N.I.S. Accounting Principles and using the same accounting and actuarial methodologies and assumptions, and in each case the application thereof, Seller used in preparing the N.I.S.auditing practices.
Appears in 1 contract
Financial Statements; Internal Controls. (a) Seller has previously delivered to Buyer trueSection 4.04 of the SafeStitch Disclosure Letter includes a complete copy of SafeStitch’s unaudited balance sheet, correct income statement and complete copies statement of (i) audited statements cash flows of financial condition of N.I.S. SafeStitch as of December 31and for the six month period ended June 30, 2016 2013, and December 31the audited balance sheet, 2017 (together with all material supporting documents income statement and statement of N.I.S. in connection therewith); (ii) audited statements of income, changes in stockholder's equity and cash flows of SafeStitch for the years ended December 31, 2016 2011 and December 31, 2017; (iii) an unaudited balance sheet of N.I.S. as of June 30, 2018 (the “N.I.S. Reference Balance Sheet”); and (iv) the unaudited statements of income, changes in stockholder's equity and cash flows of N.I.S. for the three months ended June 30, 2018 2012 (collectively, the foregoing financial statements, and together with the Subsequent GAAP Financial Statements, the “GAAP SafeStitch Financial Statements”). Subject to the notes thereto, the GAAP The SafeStitch Financial Statements (A) were or, in the case of the Subsequent GAAP Financial Statements, will be derived from the Books and Records of N.I.S., (B) were or, in the case of the Subsequent GAAP Financial Statements, will be have been prepared in accordance with GAAP, consistently GAAP applied on a consistent basis throughout all such periods, the periods indicated and (C) with each other. The SafeStitch Financial Statements present fairly present or, in the case of the Subsequent GAAP Financial Statements, will fairly present, in all material respects, the financial position, condition and operating results of operations, cash flows SafeStitch and changes in stockholder's equity of N.I.S. its consolidated Subsidiaries as of the respective dates dates, and for the respective periods referred periods, indicated therein, subject to in the GAAP Financial Statements subject to, with respect to the unaudited GAAP Financial Statements, normal year-end adjustments, audit adjustments (none of which, individually or in the aggregate, are or, material). SafeStitch maintains a standard system of accounting established and administered in the case of the Subsequent GAAP Financial Statements, will be material, and the absence of footnotes.
(b) Seller has previously delivered to Buyer true, correct and complete copies of (i) the audited annual statutory financial statements of Ozark as of and for the years ended December 31, 2016 and December 31, 2017 (together accordance with all material supporting documents in connection therewith) and (ii) the GAAP. SafeStitch’s unaudited quarterly statutory financial statement of Ozark balance sheet as of June 30, 2018 2013, is referred to as the “SafeStitch Balance Sheet.”
(b) SafeStitch and its Subsidiaries have filed or furnished each form, report, schedule, registration statement, definitive proxy statement and other document (together with all amendments thereof and supplements thereto) required to be filed or furnished by SafeStitch or any of its Subsidiaries pursuant to the balance sheet contained in Securities Act or the Exchange Act with the SEC since January 1, 2010 (as such unaudited quarterly statutory financial statement for documents have since the period ending June 30, 2018time of their filing been amended or supplemented, the “Ozark Reference Balance Sheet”) (collectively, and together with the Subsequent SAP Financial Statements, the “Statutory StatementsSafeStitch SEC Reports”). No Governmental Entity has requested the refiling As of their respective dates, after giving effect to any amendments or amending of any Statutory Statement. Subject to the notes supplements thereto, the Statutory Statements SafeStitch SEC Reports (A) were derived from, prepared using, and complied as to form in all material respects are consistent with orthe requirements of the Securities Act and the Exchange Act, as the case may be, and, to the extent applicable, the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002 (“SOX”), and (B) did not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in the case light of the Subsequent SAP circumstances under which they were made, not misleading. The SafeStitch Financial Statements, will be derived from, will be prepared using, and Statements complied as to form in all material respects will be consistent with, with the Books published rules and Records of Ozark; (B) were or, in the case regulations of the Subsequent SAP Financial Statements, will be prepared SEC with respect thereto in accordance with SAP, consistently applied throughout all such periods, and effect at the time of filing or furnishing the applicable SafeStitch SEC Report.
(Ci) fairly present or, in the case Each of the Subsequent SAP Financial Statements, will fairly present, in all material respects, the statutory financial position, admitted assets, liabilities and capital and surplus principal executive officer of Ozark at their respective dates SafeStitch and the results principal financial officer of operationsSafeStitch (or each former principal executive officer of SafeStitch and each former principal financial officer of SafeStitch, changes in surplus as applicable) has made all certifications required by Rule 13a-14 or 15d-14 under the Exchange Act or Sections 302 and cash flows 906 of Ozark at and for the respective periods indicated SOX and the results of operations, cash flows rules and changes in stockholder's equity of Ozark as regulations of the respective dates and for the respective periods referred to in the Statutory Statements subject to, SEC promulgated thereunder with respect to the unaudited Statutory Statements, normal year-end adjustments, none of which, individually or in the aggregate, are or, in the case SafeStitch SEC Reports. For purposes of the Subsequent SAP Financial Statementspreceding sentence, will be material“principal executive officer” and “principal financial officer” shall have the meanings given to such terms in SOX. No material weakness or significant deficiency has been asserted by any Governmental EntitySince January 1, or been determined to exist by Ozark management or the Ozark's independent registered public accounting firm2012, with respect to neither SafeStitch nor any of its Subsidiaries has arranged any outstanding “extensions of credit” to directors or executive officers within the Statutory Statements previously delivered to Buyer and there are no permitted accounting practices granted by any Insurance Regulator that were utilized in the preparation meaning of such Statutory StatementsSection 402 of SOX.
(cii) The N.I.S. Estimated Balance Sheet will SafeStitch has designed and maintains a system of internal control over financial reporting (as defined in Rules 13a-15(f) and 15d-15(f) of the Exchange Act) sufficient to provide reasonable assurances regarding the reliability of financial reporting. SafeStitch (x) has designed and maintains disclosure controls and procedures (as defined in Rules 13a-15(e) and 15d-15(e) of the Exchange Act) to provide reasonable assurance that all information required to be (i) derived fromdisclosed by SafeStitch in the reports that it files or submits under the Exchange Act is recorded, prepared usingprocessed, summarized and reported within the time periods specified in the SEC’s rules and forms and is accumulated and communicated to SafeStitch’s management as appropriate to allow timely decisions regarding required disclosure, and in (y) has disclosed, based on its most recent evaluation of internal control over financial reporting, to SafeStitch’s outside auditors and the audit committee of the Board of Directors of SafeStitch (A) all significant deficiencies and material respects consistent with, the Books and Records of N.I.S.; (ii) determined in accordance with GAAP applied on a consistent basis with the periods presented weaknesses in the GAAP Financial Statements previously delivered design or operation of internal control over financial reporting which are reasonably likely to Buyer (except adversely affect SafeStitch’s ability to the extent of any adjustments to GAAP or the application thereof expressly embodied in the N.I.S. Accounting Principles); record, process, summarize and report financial information and (iiiB) prepared any fraud, whether or not material, that involves management or other employees who have a significant role in accordance with the N.I.S. Accounting Principles and using the same accounting and actuarial methodologies and assumptionsSafeStitch’s internal control over financial reporting. Since December 31, and 2009, any material change in each case the application thereof, Seller used internal control over financial reporting required to be disclosed in preparing the N.I.S.any SafeStitch SEC Report has been so disclosed.
Appears in 1 contract
Financial Statements; Internal Controls. (a) Seller DBI has previously delivered or made available to Buyer true, correct and complete BFC copies of DBI’s (i) audited consolidated financial statements of financial condition of N.I.S. as of December 31, 2016 (including the related notes and December 31, 2017 (together with all material supporting documents of N.I.S. in connection therewith); (iischedules thereto) audited statements of income, changes in stockholder's equity and cash flows for the years ended December 31, 2016 2020, 2019 and December 312018, 2017; (iii) an unaudited balance sheet accompanied by the unqualified audit reports of N.I.S. as of June 30▇▇▇▇▇▇ & ▇▇▇▇▇, 2018 (the “N.I.S. Reference Balance Sheet”); and (iv) the unaudited statements of incomePLLC, changes in stockholder's equity and cash flows of N.I.S. for the three months ended June 30, 2018 independent registered accountants (collectively, the foregoing “Audited Annual Financial Statements”) and (ii) unaudited interim consolidated financial statementsstatements for the nine months ended September 30, 2021 (the “Unaudited Interim Financial Statements” and together collectively with the Subsequent GAAP Audited Annual Financial Statements, the “GAAP Financial Statements”). Subject to the notes thereto, the GAAP The Financial Statements (Aincluding any related notes and schedules thereto) were or, in the case of the Subsequent GAAP Financial Statements, will be derived from the Books and Records of N.I.S., (B) were or, in the case of the Subsequent GAAP Financial Statements, will be prepared in accordance with GAAP, consistently applied throughout all such periods, and (C) fairly present or, in the case of the Subsequent GAAP Financial Statements, will fairly present, in all material respects, the financial position, results of operations, cash flows and changes in stockholder's equity of N.I.S. as of the respective dates and for the respective periods referred to in the GAAP Financial Statements subject to, with respect to the unaudited GAAP Financial Statements, normal year-end adjustments, none of which, individually or in the aggregate, are or, in the case of the Subsequent GAAP Financial Statements, will be material, and the absence of footnotes.
(b) Seller has previously delivered to Buyer true, correct accurate and complete copies of (i) the audited annual statutory financial statements of Ozark as of and for the years ended December 31, 2016 and December 31, 2017 (together with all material supporting documents in connection therewith) and (ii) the unaudited quarterly statutory financial statement of Ozark as of June 30, 2018 (the balance sheet contained in such unaudited quarterly statutory financial statement for the period ending June 30, 2018, the “Ozark Reference Balance Sheet”) (collectively, and together with the Subsequent SAP Financial Statements, the “Statutory Statements”). No Governmental Entity has requested the refiling or amending of any Statutory Statement. Subject to the notes thereto, the Statutory Statements (A) were derived from, prepared using, and in all material respects are consistent with or, in the case of the Subsequent SAP Financial Statements, will be derived from, will be prepared using, and fairly present in all material respects will be consistent with, the Books and Records of Ozark; (B) were or, in the case of the Subsequent SAP Financial Statements, will be prepared in accordance with SAP, consistently applied throughout all such periods, and (C) fairly present or, in the case of the Subsequent SAP Financial Statements, will fairly present, in all material respects, the statutory financial position, admitted assets, liabilities and capital and surplus of Ozark at their respective dates condition and the results of operations, changes in surplus shareholders’ equity, and cash flows of Ozark at DBI and for the respective periods indicated and the results of operations, cash flows and changes in stockholder's equity of Ozark its consolidated Subsidiaries as of the respective dates of and for the respective periods referred to in such financial statements, all in accordance with GAAP, consistently applied, subject, in the Statutory Statements subject to, with respect to case of the unaudited Statutory Unaudited Interim Financial Statements, normal to normal, recurring year-end adjustmentsadjustments (the effect of which has not had, none of whichand would not reasonably be expected to have, individually or in the aggregate, are or, in the case of the Subsequent SAP Financial Statements, will be material. No material weakness or significant deficiency has been asserted by any Governmental Entity, or been determined to exist by Ozark management or the Ozark's independent registered public accounting firm, a Material Adverse Effect with respect to DBI) and the absence of notes and schedules (that, if presented, would not differ materially from those included in the Audited Annual Financial Statements). No financial statements of any entity or enterprise other than DBI’s Subsidiaries are required by GAAP to be included in the consolidated financial statements of DBI. The audits of DBI have been conducted in accordance with GAAP. Since December 31, 2020, neither DBI nor any of its Subsidiaries has any liabilities or obligations of a nature that would be required by GAAP to be set forth on its consolidated balance sheet or in the Statutory notes thereto except for liabilities reflected or reserved against in the Financial Statements previously delivered and current liabilities incurred in the Ordinary Course of Business since December 31, 2020. True, correct and complete copies of the Financial Statements are set forth in DBI Disclosure Schedule 3.07(a).
(b) The records, systems, controls, data and information of DBI 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 DBI or its Subsidiaries or accountants (including all means of access thereto and therefrom). DBI and its Subsidiaries have devised and maintain a system of internal accounting controls sufficient to Buyer provide reasonable assurances regarding the reliability of financial reporting and there are no permitted accounting practices granted by any Insurance Regulator that were utilized in the preparation of financial statements in accordance with GAAP. DBI has disclosed based on its most recent evaluations, to its outside auditors and the audit committee of the board of directors of DBI (i) all significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect DBI’s ability to record, process, summarize and report financial data and (ii) any fraud, whether or not material, that involves management or other employees who have a significant role in DBI’s internal control over financial reporting. DBI has made available to BFC a summary of any such Statutory Statementsdisclosure made by management to the auditor and/or audit committee of BFC or any Subsidiary.
(c) Except as set forth in DBI Disclosure Schedule 3.07(c), since January 1, 2018, neither DBI nor any of its Subsidiaries nor, to DBI’s Knowledge, any director, officer, employee, auditor, accountant or representative of DBI or any of its Subsidiaries has received, or otherwise had or obtained Knowledge of, any material complaint, allegation, assertion or claim regarding the accounting or auditing practices, procedures, methodologies or methods of DBI or any of its Subsidiaries or their respective internal accounting controls, including any material complaint, allegation, assertion or claim that DBI or any of its Subsidiaries has engaged in questionable accounting or auditing practices.
(d) The N.I.S. Estimated Balance Sheet will be (i) derived frommost recent Financial Statements as of the date hereof reflect an adequate reserve, prepared using, and in all material respects consistent with, the Books and Records of N.I.S.; (ii) determined in accordance with GAAP applied on a consistent basis with GAAP, for all Taxes payable by DBI and its Subsidiaries for all taxable periods through the periods presented in the GAAP date of such Financial Statements previously delivered to Buyer (except to the extent Statements. Since December 31, 2020, neither DBI nor any of its Subsidiaries has incurred any adjustments to GAAP liability for Taxes arising from extraordinary gains or the application thereof expressly embodied in the N.I.S. Accounting Principles); and (iii) prepared in accordance with the N.I.S. Accounting Principles and using the same accounting and actuarial methodologies and assumptionslosses, and in each case the application thereof, Seller as that term is used in preparing GAAP, outside the N.I.S.Ordinary Course of Business.
Appears in 1 contract
Sources: Merger Agreement (Bank First Corp)
Financial Statements; Internal Controls. (a) Seller has previously delivered to Buyer Attached as Section 4.8(a) of the Panavision Disclosure Letter are true, correct and complete copies of (i) the draft audited consolidated balance sheet of the Panavision Group as of December 31, 2017 and the draft audited consolidated statements of financial condition operations and comprehensive loss, stockholders’ equity and cash flows of N.I.S. the Panavision Group for the year ended December 31, 2017 (collectively, the “Panavision Draft Audited Financial Statements”), (ii) the audited consolidated balance sheets of the Panavision Group as of December 31, 2016 and December 31, 2017 (together with all material supporting documents of N.I.S. in connection therewith); (ii) 2015 and the audited consolidated statements of incomeoperations and comprehensive loss, changes in stockholder's stockholders’ equity and cash flows of the Panavision Group for the years ended December 31, 2016 and December 31, 2017; 2015 (together with the Draft Panavision Audited Financial Statements, the “Panavision Audited Financial Statements”) and (iii) an the unaudited consolidated balance sheet and statements of N.I.S. operations, income and cash flows of the Panavision Group as of June 30and for the quarter ended March 31, 2018 (the “N.I.S. Reference Balance Sheet”); and (iv) the unaudited statements of incomePanavision Unaudited Financial Statements” and, changes in stockholder's equity and cash flows of N.I.S. for the three months ended June 30, 2018 (collectively, the foregoing financial statements, and together with the Subsequent GAAP Panavision Audited Financial Statements, the “GAAP Panavision Audited and Unaudited Financial Statements”). Subject to .
(b) Except as set forth on Section 4.8(b) of the notes theretoPanavision Disclosure Letter, the GAAP Panavision Audited and Unaudited Financial Statements (i) fairly present in all material respects (A) were orthe consolidated financial position of the Panavision Group, as at the respective dates thereof, (B) in the case of the Panavision Audited and Unaudited Financial Statements, the consolidated results of operations, income and cash flows of the Panavision Group for the respective period then ended and (C) in the case of the Panavision Audited Financial Statements, the consolidated changes in stockholders’ equity (deficit) of the Panavision Group for the respective periods then ended (subject, in the case of the Subsequent GAAP Panavision Unaudited Financial StatementsStatements with respect to clauses (A) and (B), will to the absence of normal year-end audit adjustments (none of which is expected to be derived from material) and the Books and Records absence of N.I.S.footnotes), (Bii) were orprepared in conformity with GAAP applied on a consistent basis during the periods involved (except, in the case of the Subsequent GAAP Panavision Audited Financial Statements, will as may be prepared indicated in accordance with GAAP, consistently applied throughout all such periods, the notes thereto and (C) fairly present orsubject, in the case of the Subsequent GAAP Panavision Unaudited Financial Statements, will fairly present, in all material respects, the financial position, results of operations, cash flows and changes in stockholder's equity of N.I.S. as of the respective dates and for the respective periods referred to in the GAAP Financial Statements subject to, with respect to the unaudited GAAP Financial Statements, absence of footnotes and normal year-end adjustments, audit adjustments (none of whichwhich is expected to be material)), individually or and (iii) were prepared from, and are in accordance with, the aggregate, are or, in the case Books and Records of the Subsequent GAAP Financial StatementsPanavision Group. Except as set forth on Section 4.8(b) of the Panavision Disclosure Letter, will be material, and the absence of footnotes.
(b) Seller has previously delivered to Buyer true, correct and complete copies of (iA) the audited annual statutory financial statements consolidated balance sheets of Ozark the Panavision Group as of and for the years ended December 31, 2017, December 31, 2016 and December 31, 2015 and the audited consolidated statements of operations and comprehensive loss, stockholders’ equity and cash flows of the Panavision Group for the years ended December 31, 2017 (together with all material supporting documents in connection therewith) and (ii) the unaudited quarterly statutory financial statement of Ozark as of June 30, 2018 (the balance sheet contained in such unaudited quarterly statutory financial statement for the period ending June 30, 2018, the “Ozark Reference Balance Sheet”) (collectively, and together with the Subsequent SAP Closing Panavision Audited Financial Statements, the “Statutory Statements”). No Governmental Entity has requested , when delivered following the refiling or amending date of any Statutory Statement. Subject to the notes theretothis Agreement in accordance with Section 8.7, the Statutory Statements (A) were derived from, prepared using, and will fairly present in all material respects are consistent with or, in the case consolidated financial position of the Subsequent SAP Panavision Group, as at the respective dates thereof, and the consolidated results of operations, income, changes in stockholders’ equity (deficit) and cash flows for the respective periods then ended, (B) the Closing Panavision Audited Financial Statements, will be derived fromwhen delivered following the date of this Agreement in accordance with Section 8.7, will be prepared usingin conformity with GAAP applied on a consistent basis during the periods involved (except as may be indicated in the notes thereto), (C) the Closing Panavision Audited Financial Statements, when delivered following the date of this Agreement in accordance with Section 8.7, will have been prepared from, and in all material respects will be consistent accordance with, the Books and Records of Ozark; the Panavision Group, (BD) were or, in the case of the Subsequent SAP Closing Panavision Audited Financial Statements, will be prepared when delivered following the date of this Agreement in accordance with SAPSection 8.7, consistently applied throughout all such periodswill have been audited in accordance with the standards of the Public Company Accounting Oversight Board, and (CE) fairly present or, in the case of the Subsequent SAP Closing Panavision Audited Financial Statements, when delivered by Panavision for inclusion in the Registration Statement for filing with the SEC following the date of this Agreement in accordance with Section 8.7, will comply in all material respects with the applicable accounting requirements and with the rules and regulations of the SEC, the Exchange Act and the Securities Act in effect as of the respective dates thereof.
(c) The Panavision Group maintains and, for all periods covered by the Panavision Audited and Unaudited Financial Statements, has maintained (i) Books and Records of the Panavision Group in the ordinary course of business that accurately and fairly presentreflect the transactions and dispositions of the assets of the Panavision Group in all material respects and (ii) a system of internal accounting controls sufficient to provide, in all material respects, reasonable assurances (w) that transactions, receipts and expenditures of the statutory Panavision Group are being executed and made only in accordance with appropriate authorizations of management of Panavision, (x) that transactions are recorded as necessary to permit preparation of financial position, admitted statements in conformity with GAAP and to maintain accountability for assets, liabilities and capital and surplus (y) regarding prevention or timely detection of Ozark at their respective dates and the results of operationsunauthorized acquisition, changes in surplus and cash flows of Ozark at and for the respective periods indicated and the results of operations, cash flows and changes in stockholder's equity of Ozark as use or disposition of the respective dates assets of the Panavision Group and for (z) that accounts, notes and other receivables and Inventory are recorded accurately. Since January 1, 2015, no member of the respective periods referred to Panavision Group has received from its independent auditors any written notification of any (x) “significant deficiency” in the Statutory Statements subject tointernal controls over financial reporting of the Panavision Group, with respect to the unaudited Statutory Statements, normal year-end adjustments, none of which, individually or (y) “material weakness” in the aggregateinternal controls over financial reporting of the Panavision Group or (z) fraud, are orwhether or not material, that involves management or other employees of the Panavision Group who have a significant role in the case internal controls over financial reporting of the Subsequent SAP Financial Statements, will be material. No material weakness or significant deficiency has been asserted by any Governmental Entity, or been determined to exist by Ozark management or the Ozark's independent registered public accounting firm, with respect to any of the Statutory Statements previously delivered to Buyer and there are no permitted accounting practices granted by any Insurance Regulator that were utilized in the preparation of such Statutory StatementsPanavision Group.
(cd) The N.I.S. Estimated Balance Sheet will be No member of the Panavision Group is a party to any “off-balance sheet arrangement” (ias defined in Item 303(a) derived from, prepared using, and in all material respects consistent with, of Regulation S-K promulgated by the Books and Records of N.I.S.; (ii) determined in accordance with GAAP applied on a consistent basis with the periods presented in the GAAP Financial Statements previously delivered to Buyer (except to the extent of any adjustments to GAAP or the application thereof expressly embodied in the N.I.S. Accounting PrinciplesSEC); and (iii) prepared in accordance with the N.I.S. Accounting Principles and using the same accounting and actuarial methodologies and assumptions, and in each case the application thereof, Seller used in preparing the N.I.S..
Appears in 1 contract
Sources: Business Combination Agreement (Saban Capital Acquisition Corp.)
Financial Statements; Internal Controls. (a) Seller has previously delivered The audited consolidated financial statements of the Company and its consolidated Subsidiaries, for the fiscal year ended December 31, 2011 (the “2011 Audited Financials”) and each other relevant fiscal year included in the Company SEC Reports, and the unaudited consolidated financial statements for the periods subsequent to Buyer truethe 2011 Audited Financials (including in each case any notes thereto), correct and complete copies of included in the Company SEC Reports:
(i) complied in all material respects with applicable accounting requirements and the rules and regulations of the SEC;
(ii) were prepared in accordance with United States generally accepted accounting principles (“GAAP”) applied on a consistent basis (except as may be indicated in the notes to those financial statements) and subject, in the case of the unaudited financial statements, to normal year-end audit adjustments and to the absence of information or notes not required by GAAP to be included in interim financial statements as permitted by Form 10-Q of the SEC; and
(iii) fairly presented (except as may be indicated in the notes thereto) in all material respects the consolidated financial position of the Company and its consolidated Subsidiaries as of the dates thereof and their consolidated results of operations and cash flows for the periods then ended.
(b) Section 4.11(b) of the Company Disclosure Letter contains (i) the audited statements consolidated balance sheets of financial condition of N.I.S. the Chehalis Joint Venture as of December 31, 2016 2010 (the “Chehalis Audited Balance Sheet”), and December 31, 2017 (together with all material supporting documents of N.I.S. in connection therewith); (ii) the related audited statements of incomeoperations, changes in stockholder's shareholders’ equity and cash flows for the years fiscal year then ended December 31, 2016 and December 31, 2017; (iii) an unaudited balance sheet of N.I.S. as of June 30, 2018 (the “N.I.S. Reference Balance Sheet”); and (iv) the unaudited statements of income, changes in stockholder's equity and cash flows of N.I.S. for the three months ended June 30, 2018 (collectively, the foregoing financial statements, and together with the Subsequent GAAP Financial StatementsChehalis Audited Balance Sheet, the “GAAP Chehalis Audited Financial Statements”). Subject to the notes thereto, the GAAP Financial Statements (A) were or, in the case of the Subsequent GAAP Financial Statements, will be derived from the Books and Records of N.I.S., (B) were or, in the case of the Subsequent GAAP Financial Statements, will be prepared in accordance with GAAP, consistently applied throughout all such periods, and (C) fairly present or, in the case of the Subsequent GAAP Financial Statements, will fairly present, in all material respects, the financial position, results of operations, cash flows and changes in stockholder's equity of N.I.S. as of the respective dates and for the respective periods referred to in the GAAP Financial Statements subject to, with respect to the unaudited GAAP Financial Statements, normal year-end adjustments, none of which, individually or in the aggregate, are or, in the case of the Subsequent GAAP Financial Statements, will be material, and the absence of footnotes.
(b) Seller has previously delivered to Buyer true, correct and complete copies of (i) the audited annual statutory financial statements of Ozark as of and for the years ended December 31, 2016 and December 31, 2017 (together with all material supporting documents in connection therewith) and (ii) the unaudited quarterly statutory financial statement consolidated balance sheet of Ozark the Chehalis Joint Venture as of June September 30, 2018 2011 (the balance sheet contained in such unaudited quarterly statutory financial statement for the period ending June 30, 2018, the “Ozark Reference Latest Balance Sheet”) and the related unaudited statement of operations, shareholders’ equity and cash flows for the period then ended (collectively, and together with the Subsequent SAP Chehalis Audited Financial StatementsStatements and the Latest Balance Sheet, the “Statutory Chehalis Financial Statements”). No Governmental Entity has requested the refiling or amending of any Statutory Statement. Subject to the notes thereto, the Statutory Statements Except (A) were derived from, prepared using, and as may be indicated in all material respects are consistent with or, the footnotes thereto and/or (B) in the case of the Subsequent SAP unaudited Chehalis Financial Statements, will be derived from, will be prepared using, and in all material respects will be consistent with, for the Books and Records absence of Ozark; (B) were or, in the case of the Subsequent SAP Financial Statements, will be prepared in accordance with SAP, consistently applied throughout all such periods, and (C) fairly present or, in the case of the Subsequent SAP Financial Statements, will fairly present, in all material respects, the statutory financial position, admitted assets, liabilities and capital and surplus of Ozark at their respective dates and the results of operations, changes in surplus and cash flows of Ozark at footnotes and for the respective periods indicated and the results of operations, cash flows and changes in stockholder's equity of Ozark as of the respective dates and for the respective periods referred to in the Statutory Statements subject to, with respect to the unaudited Statutory Statements, normal year-end adjustments, none of which, individually or in the aggregate, are or, in Chehalis Financial Statements have been prepared from the case books and records of the Subsequent SAP Financial Statements, will be material. No material weakness or significant deficiency has been asserted by any Governmental Entity, or been determined to exist by Ozark management or the Ozark's independent registered public accounting firm, with respect to any of the Statutory Statements previously delivered to Buyer and there are no permitted accounting practices granted by any Insurance Regulator that were utilized in the preparation of such Statutory Statements.
(c) The N.I.S. Estimated Balance Sheet will be (i) derived from, prepared using, and in all material respects consistent with, the Books and Records of N.I.S.; (ii) determined Chehalis Joint Venture in accordance with GAAP applied on a consistent basis (except as may be indicated in the notes to those financial statements) and fairly presented, in all material respects, the financial condition and results of operations and cash flows of the entities or business to which they relate as of the dates thereof or the periods then ended.
(c) The Company maintains disclosure controls and procedures required by Rule 13a-15 or Rule 15d-15 under the Exchange Act. Such disclosure controls and procedures are reasonably effective to ensure that all material information relating to the Company and its Subsidiaries required to be disclosed in the Company’s periodic reports under the Exchange Act is made known to the Company’s principal executive officer and its principal financial officer by others within the Company or any of its Subsidiaries, and such disclosure controls and procedures are reasonably effective in timely alerting the Company’s principal executive officer and its principal financial officer to such information required to be included in the Company’s periodic reports required under the Exchange Act. The Company has disclosed, based on the most recent evaluation of its principal executive officer and its principal financial officer prior to the date of this Agreement, to the Company’s auditors and the audit committee of the Company Board (i) all significant deficiencies and material weaknesses in the design or operation of internal controls over financial reporting which are reasonably likely to adversely affect the Company’s or any of its Subsidiary’s ability to record, process, summarize and report financial information in any material respect and (ii) any fraud, whether or not material, that involves management or other employees who have a significant role in the Company’s internal controls.
(d) From January 1, 2009 to the date hereof, neither the Company nor, to the Knowledge of the Company, any Representative of the Company has received any material complaint, allegation, assertion or claim, regarding deficiencies in the accounting or auditing practices, procedures, methodologies or methods of the Company or its internal accounting controls.
(e) The Company is in compliance in all material respects with the periods presented in applicable listing and corporate governance rules and regulations of the GAAP Financial Statements previously Applicable Exchange. Neither the Company nor any of its Subsidiaries has outstanding, or has arranged any outstanding “extensions of credit” to directors or executive officers of the Company prohibited by Section 402 of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act.
(f) Section 4.11(f) of the Company Disclosure Letter sets forth, and the Company has delivered to Buyer Parent complete and correct copies of, the documents creating or governing all of the Company’s “off-balance sheet arrangements” (except as defined in Item 303(a)(4) of Regulation S-K of the SEC), to the extent required to be reported in the Company SEC Reports.
(g) The Company has obtained the Concord Amendment pursuant to which, subject to the satisfaction of the conditions contained therein, it shall obtain an amendment to the Concord Mortgage Loan that consents to the transactions contemplated by this Agreement or waives any adjustments to GAAP default or event of default that may arise in connection with this Agreement or the application thereof expressly embodied transactions contemplated hereby, extends the maturity of the Concord Mortgage Loan and contains other terms, in each case, in the N.I.S. Accounting Principles); form set forth in Exhibit C. The Concord Amendment is in full force and (iii) prepared in accordance with effect, subject to the N.I.S. Accounting Principles and using the same accounting and actuarial methodologies and assumptions, and in each case the application thereof, Seller used in preparing the N.I.S.Enforceability Exceptions.
Appears in 1 contract
Financial Statements; Internal Controls. (a) Seller has previously delivered to Buyer true, correct and complete copies The audited consolidated balance sheets of (i) audited statements of financial condition of N.I.S. SBT as of December 31, 2016 2018 (the “SBT Balance Sheet Date”) and December 31, 2017 (2017, together with all material supporting documents of N.I.S. in connection therewith); (ii) the audited statements of financial position, statements of comprehensive income, statements of changes in stockholder's shareholders’ equity and statements of cash flows of SBT for each of the years ended December 31, 2016 2018 and December 31, 2017; , (iii) an unaudited balance sheet of N.I.S. as of June 30collectively, 2018 (the “N.I.S. Reference Balance SheetSBT Audited Financial Statements”), were prepared and audited in accordance with the standards, principles and practices specified therein and, subject thereto, in accordance with applicable Law and the IFRS as at the SBT Balance Sheet Date, except as otherwise noted therein, using accounting policies, practices and procedures consistent with those used in the preparation of the relevant financial statements of SBT and its Subsidiaries for the two (2) financial years and two (2) preceding accounting periods prior to the SBT Balance Sheet Date, and the auditor’s reports with respect to the SBT Audited Financial Statements do not contain a “going concern” or qualification or exception as to the scope of the audit. Prior to the date hereof, true, complete and correct copies of the SBT Audited Financial Statements, and the accompanying independent auditors’ reports, as applicable, have been made available in the SBT Data Room.
(b) The SBT Audited Financial Statements show a true and fair view of: (i) the assets, liabilities, financial position and state of affairs of SBT and its Subsidiaries as at the SBT Balance Sheet Date; and (ivii) the profits and losses, changes in shareholders’ equity and cash flow of SBT and its Subsidiaries for the financial year ended on the SBT Balance Sheet Date, in accordance with and subject to the standards principles and practices specified therein.
(c) SBT and its Subsidiaries have made available in the SBT Data Room the unaudited consolidated balance sheets and related unaudited consolidated statements of income, changes in stockholder's shareholders’ equity and cash flows of N.I.S. for the three months ended June SBT and its Subsidiaries as of September 30, 2018 2019 (collectively, the foregoing financial statements, and together with the Subsequent GAAP Financial Statements, the “GAAP SBT Unaudited Financial Statements”). Subject to the notes theretoand normal year-end audit adjustments that are not material in amount or effect, the GAAP SBT Unaudited Financial Statements (A) were or, in the case of the Subsequent GAAP Financial Statements, will be derived from the Books and Records of N.I.S., (B) were or, in the case of the Subsequent GAAP Financial Statements, will be prepared in accordance with GAAPthe standards, consistently applied throughout all such periodsprinciples and practices specified in the SBT Audited Financial Statements and, and (C) fairly present orsubject thereto, in accordance with applicable Law and the case of the Subsequent GAAP Financial Statements, will fairly presentIFRS and show a true and fair view, in all material respects, the financial position, results of operations, cash flows and changes in stockholder's equity of N.I.S. as of the respective dates and for the respective periods referred to in the GAAP Financial Statements subject to, with respect to the unaudited GAAP Financial Statements, normal year-end adjustments, none of which, individually or in the aggregate, are or, in the case of the Subsequent GAAP Financial Statements, will be material, and the absence of footnotes.
(b) Seller has previously delivered to Buyer true, correct and complete copies of the: (i) assets, liabilities, the audited annual statutory financial statements position and state of Ozark affairs of SBT and its Subsidiaries as of and for the years ended December 31September 30, 2016 and December 31, 2017 (together with all material supporting documents in connection therewith) 2019; and (ii) the unaudited quarterly statutory financial statement profits and losses and cash flow of Ozark as of June 30, 2018 (the balance sheet contained in such unaudited quarterly statutory financial statement SBT and its Subsidiaries for the period ending June ended as of September 30, 2018, the “Ozark Reference Balance Sheet”2019.
(d) SBT and its Subsidiaries maintain a system of internal accounting controls and procedures that are sufficient to provide reasonable assurance that (collectivelyi) transactions are executed in accordance with management’s general or specific authorization; (ii) transactions are recorded as necessary to permit preparation of financial statements in conformity with IFRS and applicable Laws, and together to maintain asset accountability; (iii) access to material assets is permitted only in accordance with management’s general or specific authorization and (iv) accounts, notes and other receivables are recorded accurately. Within the Subsequent SAP three (3) financial years prior to the SBT Balance Sheet Date, neither SBT nor any of its Subsidiaries (including their personnel and independent accountants who participated in the preparation or review of financial statements or the internal accounting controls employed by SBT or any of its Subsidiaries) has identified or been made aware of (x) any significant deficiency or material weakness in the system of internal accounting controls utilized by SBT or any of its Subsidiaries, (y) any fraud, whether or not material, that involves management of SBT or any of its Subsidiaries or any personnel involved in financial reporting or (z) any written claim or allegation regarding any of the foregoing. The SBT Audited Financial Statements and the SBT Unaudited Financial Statements, when delivered by SBT for inclusion in the “Statutory Statements”). No Governmental Entity has requested Registration Statement for filing with the refiling or amending SEC following the date of any Statutory Statement. Subject to the notes theretothis Agreement in accordance with Section 9.1, the Statutory Statements (A) were derived from, prepared using, and will comply in all material respects are consistent with or, in the case applicable accounting requirements and with the rules and regulations of the Subsequent SAP Financial Statements, will be derived from, will be prepared using, and in all material respects will be consistent with, the Books and Records of Ozark; (B) were or, in the case of the Subsequent SAP Financial Statements, will be prepared in accordance with SAP, consistently applied throughout all such periods, and (C) fairly present or, in the case of the Subsequent SAP Financial Statements, will fairly present, in all material respects, the statutory financial position, admitted assets, liabilities and capital and surplus of Ozark at their respective dates SEC and the results of operations, changes Securities Act in surplus and cash flows of Ozark at and for the respective periods indicated and the results of operations, cash flows and changes in stockholder's equity of Ozark effect as of the respective dates and for the respective periods referred to in the Statutory Statements subject to, with respect to the unaudited Statutory Statements, normal year-end adjustments, none of which, individually or in the aggregate, are or, in the case of the Subsequent SAP Financial Statements, will be material. No material weakness or significant deficiency has been asserted by any Governmental Entity, or been determined to exist by Ozark management or the Ozark's independent registered public accounting firm, with respect to any of the Statutory Statements previously delivered to Buyer and there are no permitted accounting practices granted by any Insurance Regulator that were utilized in the preparation of such Statutory Statementsdate.
(ce) The N.I.S. Estimated Balance Sheet will be (i) derived from, prepared using, Each of SBT and in all material respects consistent with, the Books and Records of N.I.S.; (ii) determined in accordance with GAAP applied its Subsidiaries has maintained its accounting records on a proper and consistent basis with the periods presented in the GAAP Financial Statements previously delivered to Buyer (and they are up-to-date, except to the extent of any adjustments to GAAP or the application thereof expressly embodied in the N.I.S. Accounting Principles); and (iii) prepared in accordance with the N.I.S. Accounting Principles and using the same accounting and actuarial methodologies and assumptions, and in each case the application thereof, Seller used in preparing the N.I.S.where failure does not have a SBT Material Adverse Effect.
Appears in 1 contract
Sources: Business Combination Agreement (Diamond Eagle Acquisition Corp. \ DE)
Financial Statements; Internal Controls. (a) Seller has previously delivered to Buyer Section 4.6(a) of the Skydance Disclosure Letter contains true, complete and accurate copies of the audited consolidated financial statements consisting of the balance sheets of Skydance as of December 31, 2021, December 31, 2022, and December 31, 2023 (the balance sheet of Skydance as of December 31, 2023, the “Skydance Balance Sheet”), and the related consolidated statements of operations, comprehensive income and retained earnings for each of the years then ended (collectively the “Skydance Financial Statements”). True, correct and complete copies of the Skydance Financial Statements have been provided to Paramount. The Skydance Financial Statements (i) audited statements of were prepared in accordance with GAAP applied on a consistent basis throughout the periods covered (except as may be indicated in the notes to such financial condition of N.I.S. as of December 31, 2016 and December 31, 2017 (together with all material supporting documents of N.I.S. in connection therewithstatements); (ii) audited statements of income, changes in stockholder's equity and cash flows for the years ended December 31, 2016 and December 31, 2017; (iii) an unaudited balance sheet of N.I.S. as of June 30, 2018 (the “N.I.S. Reference Balance Sheet”); and (iv) the unaudited statements of income, changes in stockholder's equity and cash flows of N.I.S. for the three months ended June 30, 2018 (collectively, the foregoing financial statements, and together with the Subsequent GAAP Financial Statements, the “GAAP Financial Statements”). Subject to the notes thereto, the GAAP Financial Statements (A) were or, in the case of the Subsequent GAAP Financial Statements, will be derived from the Books and Records of N.I.S., (B) were or, in the case of the Subsequent GAAP Financial Statements, will be prepared in accordance with GAAP, consistently applied throughout all such periods, and (C) fairly present or, in the case of the Subsequent GAAP Financial Statements, will fairly present, in all material respects, the consolidated financial position, results position of operations, cash flows Skydance and changes in stockholder's equity of N.I.S. its consolidated Subsidiaries as of the respective dates thereof and the consolidated results of operations and cash flows of Skydance and its consolidated Subsidiaries for the respective periods referred to covered thereby; and (iii) were prepared from, and are in accordance with, the GAAP Financial Statements subject tobooks and records of Skydance and the Skydance Subsidiaries (which books and records are correct and complete in all material respects). Except as required by applicable Law, since January 1, 2021, there has been no change in any accounting principles, policies, methods or practices, including any change with respect to the unaudited GAAP Financial Statementsreserves (whether for bad debt, normal year-end adjustmentscontingent liabilities or otherwise), none of which, individually or in the aggregate, are or, in the case of the Subsequent GAAP Financial Statements, will be material, Skydance and the absence of footnotesSkydance Subsidiaries.
(b) Seller Skydance maintains, and at all times since January 1, 2021 has previously delivered maintained, a system of internal controls over financial reporting that has been designed to Buyer trueprovide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with GAAP, correct and complete copies of includes those policies and procedures that: (i) pertain to the audited annual statutory financial statements maintenance of Ozark as records that in reasonable detail accurately and fairly reflect the transactions and dispositions of and for the years ended December 31, 2016 and December 31, 2017 (together with all material supporting documents in connection therewith) and assets of Skydance; (ii) provide reasonable assurance that transactions are recorded as necessary to permit preparation of financial statements in conformity with GAAP and executed only in accordance with authorizations of management and directors of Skydance; and (iii) provide reasonable assurance regarding prevention or timely detection of unauthorized acquisition, use, or disposition of the unaudited quarterly statutory assets of Skydance that could have a material effect on Skydance’s consolidated financial statement statements. Since January 1, 2021, none of Ozark as of June 30, 2018 (the balance sheet contained in such unaudited quarterly statutory financial statement for the period ending June 30, 2018Skydance, the “Ozark Reference Balance Sheet”) (collectivelySkydance Board, and together with the Subsequent SAP Financial Statementsits audit committee or, the “Statutory Statements”). No Governmental Entity has requested the refiling or amending of any Statutory Statement. Subject to the notes theretoknowledge of Skydance, the Statutory Statements Skydance’s independent registered accounting firm, has identified or been made aware of any: (A) were derived from, prepared using, and in all significant deficiency or material respects are consistent with or, weakness in the case design or operation of the Subsequent SAP Financial Statements, will be derived from, will be prepared using, and in all material respects will be consistent with, the Books and Records of Ozarkinternal control over financial reporting utilized by Skydance; (B) were orillegal act or fraud, whether or not material, that involves the management or other employees of Skydance who have a significant role in the case of the Subsequent SAP Financial Statements, will be prepared in accordance with SAP, consistently applied throughout all such periods, and Skydance’s internal controls over financial reporting; or (C) fairly present or, in the case of the Subsequent SAP Financial Statements, will fairly present, in all material respects, the statutory financial position, admitted assets, liabilities and capital and surplus of Ozark at their respective dates and the results of operations, changes in surplus and cash flows of Ozark at and for the respective periods indicated and the results of operations, cash flows and changes in stockholder's equity of Ozark as of the respective dates and for the respective periods referred to in the Statutory Statements subject to, with respect to the unaudited Statutory Statements, normal year-end adjustments, none of which, individually claim or in the aggregate, are or, in the case of the Subsequent SAP Financial Statements, will be material. No material weakness or significant deficiency has been asserted by any Governmental Entity, or been determined to exist by Ozark management or the Ozark's independent registered public accounting firm, with respect to allegation regarding any of the Statutory Statements previously delivered to Buyer and there are no permitted accounting practices granted by any Insurance Regulator that were utilized in the preparation of such Statutory Statementsforegoing.
(c) The N.I.S. Estimated Balance Sheet will be Neither Skydance nor any Skydance Subsidiary is a party to or has any obligation or other commitment to become a party to any securitization transaction, off-balance sheet partnership, or any similar Contract (i) derived fromincluding any Contract arising out of or relating to any transaction or relationship between or among Skydance and any Skydance Subsidiary, prepared usingon the one hand, and in all any unconsolidated Affiliate, including any structured finance, special purpose, or limited purpose Entity, on the other hand, or any “off-balance sheet arrangement”) where the result, purpose, or intended effect of such Contract is to avoid disclosure of any material respects consistent withtransaction involving, the Books and Records of N.I.S.; (ii) determined in accordance with GAAP applied on a consistent basis with the periods presented or material liabilities of, Skydance or any Skydance Subsidiary in the GAAP Skydance Financial Statements previously delivered to Buyer (except to the extent of any adjustments to GAAP or the application thereof expressly embodied in the N.I.S. Accounting Principles); and (iii) prepared in accordance with the N.I.S. Accounting Principles and using the same accounting and actuarial methodologies and assumptions, and in each case the application thereof, Seller used in preparing the N.I.S.Statements.
Appears in 1 contract
Financial Statements; Internal Controls. (a) Seller has previously delivered to Buyer true, correct and complete copies of Attached as Schedule 4.4 are (i) audited statements of financial condition of N.I.S. as of balance sheets for each Manager at December 31, 2016 2005 and December 31, 2017 2006 (together with all material supporting documents provided such entities were in existence as of N.I.S. in connection therewith); (iisuch date) and audited statements of income, changes in stockholder's owners’ equity and cash flows flow for the fiscal years ended December 31, 2016 2005 and December 312006 (or such shorter periods as such entities have been in existence) (such financial statements, 2017; including the footnotes contained therein, the “Manager Audited Financial Statements”), (ii) unaudited balance sheets for each Manager at June 30, 2007 and unaudited statements of income for the six months ending on June 30, 2007 (the “Manager Unaudited Financial Statements”), (iii) an unaudited audited balance sheet of N.I.S. as of June 30for the Advisor at December 31, 2018 (the “N.I.S. Reference Balance Sheet”); 2005 and (iv) the unaudited 2006 and audited statements of income, changes in stockholder's owners’ equity and cash flows of N.I.S. flow for the three fiscal years ended December 31, 2005 and 2006 (such financial statements, including the footnotes contained therein, the “Advisor Audited Financial Statements”; and, together with the Manager Audited Financial Statements, the “Audited Financial Statements”), and (iv) an unaudited balance sheet for the Advisor at June 30, 2007 and unaudited statements of income and changes in owners’ equity and cash flow for the six months ended June 30, 2018 2007 (collectively, the foregoing financial statements, “Advisor Unaudited Financial Statements”; and together with the Subsequent GAAP Manager Unaudited Financial Statements, the “GAAP Unaudited Financial Statements”). Subject to the notes thereto, the GAAP The Audited Financial Statements and Unaudited Financial Statements are collectively referred to herein as the “Service Provider Financial Statements.” The Service Provider Financial Statements of each Service Provider (A) were orincluding, in the case of the Subsequent GAAP Financial Statementseach case, will be derived from the Books and Records of N.I.S., (Bany notes thereto if required by GAAP) were or, in the case of the Subsequent GAAP Financial Statements, will be have been prepared in accordance with GAAP, consistently applied throughout all such periods, GAAP and (C) fairly present or, in the case of the Subsequent GAAP Financial Statements, will fairly present, in all material respects, the financial position, results condition of operations, cash flows and changes in stockholder's equity of N.I.S. such Service Provider as of the respective dates and the results of operations and cash flows of such Service Provider for the respective periods referred to in the GAAP Financial Statements subject tothen ended, with respect to the unaudited GAAP Financial Statementsas applicable, normal year-end adjustments, none of which, individually or in the aggregate, are orsubject, in the case of the Subsequent GAAP Financial Statementsunaudited statements, will be material, and the absence of footnotesto normal or recurring year-end immaterial adjustments.
(b) Seller No Service Provider has previously delivered any significant deficiencies in the design or operation of its internal controls which could adversely affect its ability to Buyer truerecord, correct process, summarize and complete copies of (i) the audited annual statutory report financial statements of Ozark as of and for the years ended December 31, 2016 and December 31, 2017 (together data with all material supporting documents in connection therewith) respect to such Service Provider and (ii) the unaudited quarterly statutory financial statement no Service Provider has identified any fraud, whether or not material, that involves management or other employees of Ozark as of June 30, 2018 (the balance sheet contained such Service Provider who have a significant role in such unaudited quarterly statutory financial statement for Service Provider’s internal controls. There have been no significant changes in the period ending June 30, 2018, the “Ozark Reference Balance Sheet”) (collectively, and together with the Subsequent SAP Financial Statements, the “Statutory Statements”). No Governmental Entity has requested the refiling or amending internal controls of any Statutory Statement. Subject to the notes thereto, the Statutory Statements (A) were derived from, prepared using, and in all material respects are consistent with or, in the case of the Subsequent SAP Financial Statements, will be derived from, will be prepared using, and in all material respects will be consistent with, the Books and Records of Ozark; (B) were or, in the case of the Subsequent SAP Financial Statements, will be prepared in accordance with SAP, consistently applied throughout all such periods, and (C) fairly present or, in the case of the Subsequent SAP Financial Statements, will fairly present, in all material respects, the statutory financial position, admitted assets, liabilities and capital and surplus of Ozark at their respective dates and the results of operations, changes in surplus and cash flows of Ozark at and for the respective periods indicated and the results of operations, cash flows and changes in stockholder's equity of Ozark as of the respective dates and for the respective periods referred to in the Statutory Statements subject to, with respect to the unaudited Statutory Statements, normal year-end adjustments, none of which, individually Service Provider or in the aggregate, are or, in the case of the Subsequent SAP Financial Statements, will be material. No material weakness or significant deficiency has been asserted by any Governmental Entity, or been determined to exist by Ozark management or the Ozark's independent registered public accounting firm, other factors with respect to any of the Statutory Statements previously delivered Service Provider’s operations that could significantly affect internal controls with respect to Buyer and there are no permitted accounting practices granted by any Insurance Regulator that were utilized in the preparation of such Statutory Statements.
(c) The N.I.S. Estimated Balance Sheet will be (i) derived from, prepared using, and in all material respects consistent with, the Books and Records of N.I.S.; (ii) determined in accordance with GAAP applied on a consistent basis with the periods presented in the GAAP Financial Statements previously delivered to Buyer (except Service Provider subsequent to the extent date of its most recent evaluation, including any adjustments corrective actions with regard to GAAP or the application thereof expressly embodied in the N.I.S. Accounting Principles); significant deficiencies and (iii) prepared in accordance with the N.I.S. Accounting Principles and using the same accounting and actuarial methodologies and assumptions, and in each case the application thereof, Seller used in preparing the N.I.S.material weaknesses.
Appears in 1 contract
Sources: Merger Agreement (Inland Western Retail Real Estate Trust Inc)
Financial Statements; Internal Controls. (a) Seller TCBC has previously delivered or made available to Buyer true, correct and complete CBAN copies of TCBC’s (i) audited consolidated financial statements of financial condition of N.I.S. as of December 31, 2016 (including the related notes and December 31, 2017 (together with all material supporting documents of N.I.S. in connection therewith); (iischedules thereto) audited statements of income, changes in stockholder's equity and cash flows for the years ended December 31, 2016 2024, 2023 and December 312022, 2017; accompanied by the unqualified audit reports of ▇▇▇▇▇▇, LLP, independent registered accountants (iii) an unaudited balance sheet of N.I.S. as of June 30collectively, 2018 (the “N.I.S. Reference Balance SheetAudited Financial Statements”); ) and (ivii) unaudited interim consolidated financial statements (including the unaudited statements of income, changes in stockholder's equity related notes and cash flows of N.I.S. schedules thereto) for the three six (6) months ended June 30, 2018 2025 (collectively, the foregoing financial statements, “Unaudited Financial Statements” and together collectively with the Subsequent GAAP Audited Financial Statements, the “GAAP Financial Statements”). Subject to the notes thereto, the GAAP The Financial Statements (Aincluding any related notes and schedules thereto) were or, in the case of the Subsequent GAAP Financial Statements, will be derived from the Books and Records of N.I.S., (B) were or, in the case of the Subsequent GAAP Financial Statements, will be prepared in accordance with GAAP, consistently applied throughout all such periods, and (C) fairly present or, in the case of the Subsequent GAAP Financial Statements, will fairly present, in all material respects, the financial position, results of operations, cash flows and changes in stockholder's equity of N.I.S. as of the respective dates and for the respective periods referred to in the GAAP Financial Statements subject to, with respect to the unaudited GAAP Financial Statements, normal year-end adjustments, none of which, individually or in the aggregate, are or, in the case of the Subsequent GAAP Financial Statements, will be material, and the absence of footnotes.
(b) Seller has previously delivered to Buyer true, correct accurate and complete copies of (i) the audited annual statutory financial statements of Ozark as of and for the years ended December 31, 2016 and December 31, 2017 (together with all material supporting documents in connection therewith) and (ii) the unaudited quarterly statutory financial statement of Ozark as of June 30, 2018 (the balance sheet contained in such unaudited quarterly statutory financial statement for the period ending June 30, 2018, the “Ozark Reference Balance Sheet”) (collectively, and together with the Subsequent SAP Financial Statements, the “Statutory Statements”). No Governmental Entity has requested the refiling or amending of any Statutory Statement. Subject to the notes thereto, the Statutory Statements (A) were derived from, prepared using, and in all material respects are consistent with or, in the case of the Subsequent SAP Financial Statements, will be derived from, will be prepared using, and fairly present in all material respects will be consistent with, the Books and Records of Ozark; (B) were or, in the case of the Subsequent SAP Financial Statements, will be prepared in accordance with SAP, consistently applied throughout all such periods, and (C) fairly present or, in the case of the Subsequent SAP Financial Statements, will fairly present, in all material respects, the statutory financial position, admitted assets, liabilities and capital and surplus of Ozark at their respective dates condition and the results of operations, changes in surplus shareholders’ equity, and cash flows of Ozark at TCBC and for the respective periods indicated and the results of operations, cash flows and changes in stockholder's equity of Ozark its consolidated Subsidiaries as of the respective dates of and for the respective periods referred to in such financial statements, all in accordance with GAAP, consistently applied, subject, in the Statutory Statements subject to, with respect to case of the unaudited Statutory Unaudited Financial Statements, normal to (A) the absence of consolidated statements of changes in stockholders’ equity, consolidated statements of comprehensive income (loss), and consolidated statements of cash flow, (B) normal, recurring year-end adjustmentsadjustments (the effect of which has not had, none of whichand would not reasonably be expected to have, individually or in the aggregate, are or, in the case of the Subsequent SAP Financial Statements, will be material. No material weakness or significant deficiency has been asserted by any Governmental Entity, or been determined to exist by Ozark management or the Ozark's independent registered public accounting firm, a Material Adverse Effect with respect to TCBC), and (C) the absence of notes and schedules (that, if presented, would not differ materially from those included in the Audited Financial Statements). No financial statements of any entity or enterprise other than TCBC’s Subsidiaries are required by GAAP to be included in the consolidated financial statements of TCBC. The audits of TCBC have been conducted in accordance with GAAP. Except as set forth in TCBC Disclosure Schedule 3.07(a), since December 31, 2024, neither TCBC nor any of the Statutory Statements previously delivered its Subsidiaries has any liabilities or obligations of a nature that would be required by GAAP to Buyer and there are no permitted accounting practices granted by any Insurance Regulator that were utilized be set forth on its consolidated balance sheet or in the preparation notes thereto except for liabilities reflected or reserved against in the Financial Statements and current liabilities incurred in the Ordinary Course of such Statutory StatementsBusiness since December 31, 2024. True, correct and complete copies of the Financial Statements are set forth in TCBC Disclosure Schedule 3.07(a).
(b) The financial statements contained in the Consolidated Reports of Condition and Income (the “Call Reports”) of TC Federal Bank for the periods ended on or after December 31, 2022, (i) are true, accurate and complete in all material respects, (ii) have been prepared in accordance with GAAP and regulatory accounting principles consistently applied, except as may be otherwise indicated in the notes thereto and except for the omission of footnotes, and (iii) fairly present in all material respects the financial condition of TC Federal Bank as of the respective dates set forth therein and the results of operations and stockholders’ equity for the respective
(c) The N.I.S. Estimated Balance Sheet will be records, systems, controls, data and information of TCBC 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 TCBC or its Subsidiaries or accountants (including all means of access thereto and therefrom). TCBC and its Subsidiaries have devised and maintain a system of internal accounting controls sufficient to provide reasonable assurances regarding the reliability of financial reporting and the preparation of financial statements in accordance with GAAP. TCBC has disclosed based on its most recent evaluations, to its outside auditors and the audit committee of the board of directors of TCBC (i) derived fromall significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect TCBC’s ability to record, prepared usingprocess, summarize and in all material respects consistent with, the Books report financial data and Records of N.I.S.; (ii) determined any fraud, whether or not material, that involves management or other employees who have a significant role in accordance with GAAP applied on TCBC’s internal control over financial reporting.
(d) Except as set forth in TCBC Disclosure Schedule 3.07(d), since December 31, 2022, (x) neither TCBC nor any of its Subsidiaries nor, to TCBC’s Knowledge, any director, officer, employee, auditor, accountant or representative of TCBC 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 integrity of the Financial Statements, any financial statements of any Subsidiary of TCBC, including the Call Reports, the accounting or auditing practices, procedures, methodologies or methods of TCBC or any of its Subsidiaries or their respective internal accounting controls, including any material complaint, allegation, assertion or claim that TCBC or any of its Subsidiaries has engaged in questionable accounting or auditing practices, and (y) no attorney representing TCBC or any of its Subsidiaries, whether or not employed by TCBC or any of its Subsidiaries, has reported evidence of a consistent basis with material violation of securities Laws, breach of fiduciary duties or similar violation by TCBC or any of its officers, directors, employees, or agents to the periods presented board of directors of TCBC or any committee of the board of directors or, to TCBC’s Knowledge, to any director or officer of TCBC. To TCBC’s Knowledge, there have been no instances of fraud by TCBC or any of its Subsidiaries, whether or not material (e) Except for (i) those liabilities that are fully reflected or reserved for in the GAAP Financial Statements previously delivered to Buyer Statements, (except to the extent of any adjustments to GAAP ii) liabilities or the application thereof expressly embodied obligations incurred in the N.I.S. Accounting Principles); and Ordinary Course of Business since December 31, 2024 in amounts consistent with past practice, (iii) prepared liabilities that have been discharged or paid in accordance with full before the N.I.S. Accounting Principles and using the same accounting and actuarial methodologies and assumptionsClosing Date; or (iv) liabilities or obligations incurred directly as a result of this Agreement, and in each case the application thereofneither TCBC nor any of its Subsidiaries has incurred any material liability of any nature whatsoever (whether absolute, Seller used in preparing the N.I.S.accrued or contingent or otherwise and
Appears in 1 contract
Financial Statements; Internal Controls. (a) Set forth on Section 3.10(a) of the Seller has previously delivered to Buyer true, correct and complete copies Disclosure Schedule is a copy of (i) the audited consolidated financial statements of financial condition of N.I.S. as of December 31(balance sheets, 2016 and December 31, 2017 (together with all material supporting documents of N.I.S. in connection therewith); (ii) audited statements of income, changes in stockholder's equity and statements of cash flows and statements of stockholders’ equity) of ISP, its Subsidiaries and the Excluded Subsidiaries for the fiscal years ended December 31, 2016 2009 and December 31, 2017; (iii) an unaudited balance sheet of N.I.S. as of June 30, 2018 2010 (the “N.I.S. Reference Balance SheetISP Financial Statements”); and , (ivii) the unaudited audited consolidated financial statements (balance sheets, statements of income, changes in stockholder's equity and statements of cash flows and statements of N.I.S. member’s equity) of ISP Chemco LLC and its subsidiaries (collectively, “ISP Chemco”) for the fiscal years ended December 31, 2008, 2009 and 2010 (the “ISP Chemco Audited Financial Statements”) and (iii) the unaudited consolidated financial statements (balance sheet, statement of income and statement of cash flow of ISP Chemco) for the three months ended June 30April 3, 2018 2011 (collectively, the foregoing financial statements“ISP Chemco Unaudited Financial Statements”, and together with the Subsequent GAAP ISP Chemco Audited Financial Statements, the “GAAP ISP Chemco Financial Statements”). Subject to the notes thereto, the GAAP The ISP Financial Statements (A) were or, in the case of the Subsequent GAAP Financial Statements, will be derived from the Books and Records of N.I.S., (B) were or, in the case of the Subsequent GAAP Financial Statements, will be have been prepared in accordance with GAAP, GAAP consistently applied throughout all such periods, the periods covered thereby and (C) fairly present or, in the case of the Subsequent GAAP Financial Statements, will fairly present, in all material respects, the consolidated financial position, condition and results of operations, changes in stockholders’ equity, comprehensive income (loss) and/or changes in cash flows of ISP, its Subsidiaries and changes in stockholder's equity of N.I.S. the Excluded Subsidiaries as of the respective dates and for thereof or the respective periods referred to in the GAAP then ended, as applicable. The ISP Chemco Financial Statements subject to, with respect to the unaudited GAAP Financial Statements, normal year-end adjustments, none of which, individually or in the aggregate, are or, in the case of the Subsequent GAAP Financial Statements, will be material, and the absence of footnotes.
(b) Seller has previously delivered to Buyer true, correct and complete copies of (i) the audited annual statutory financial statements of Ozark as of and for the years ended December 31, 2016 and December 31, 2017 (together with all material supporting documents in connection therewith) and (ii) the unaudited quarterly statutory financial statement of Ozark as of June 30, 2018 (the balance sheet contained in such unaudited quarterly statutory financial statement for the period ending June 30, 2018, the “Ozark Reference Balance Sheet”) (collectively, and together with the Subsequent SAP Financial Statements, the “Statutory Statements”). No Governmental Entity has requested the refiling or amending of any Statutory Statement. Subject to the notes thereto, the Statutory Statements (A) were derived from, prepared using, and in all material respects are consistent with or, in the case of the Subsequent SAP Financial Statements, will be derived from, will be prepared using, and in all material respects will be consistent with, the Books and Records of Ozark; (B) were or, in the case of the Subsequent SAP Financial Statements, will be have been prepared in accordance with SAP, GAAP consistently applied throughout all such periods, the periods covered thereby and (C) fairly present or, in the case of the Subsequent SAP Financial Statements, will fairly present, in all material respects, the statutory consolidated financial position, admitted assets, liabilities condition and capital and surplus of Ozark at their respective dates and the results of operations, changes in surplus member’s equity, comprehensive income (loss) and changes in cash flows of Ozark at and for the respective periods indicated and the results of operations, cash flows and changes in stockholder's equity of Ozark ISP Chemco as of the respective dates and for thereof or the respective periods referred to in the Statutory Statements then ended, as applicable, subject to, with respect to the unaudited Statutory Statements, normal year-end adjustments, none of which, individually or in the aggregate, are or, in the case of the Subsequent SAP ISP Chemco Unaudited Financial Statements, will be materialto normal recurring year-end adjustments. No material weakness ISP Chemco does not directly or significant deficiency has been asserted by any Governmental Entity, or been determined to exist by Ozark management or the Ozark's independent registered public accounting firm, with respect to indirectly own any of the Statutory Statements previously delivered to Buyer and there are no permitted accounting practices granted by any Insurance Regulator that were utilized in capital stock of the preparation of such Statutory StatementsExcluded Subsidiaries.
(cb) The N.I.S. Estimated Balance Sheet will be (i) derived from, prepared using, and Companies’ system of internal controls over financial reporting is sufficient to provide reasonable assurance in all material respects consistent withthat transactions are recorded as necessary to permit preparation of financial statements in conformity with GAAP, the Books and Records of N.I.S.; (ii) determined in accordance with GAAP applied on a consistent basis with the periods presented in the GAAP Financial Statements previously delivered to Buyer (except to the extent of any adjustments to GAAP or the application thereof expressly embodied in the N.I.S. Accounting Principles); and (iii) prepared in accordance with the N.I.S. Accounting Principles and using the same accounting and actuarial methodologies and assumptions, and in each case the application thereof, Seller used in preparing the N.I.S.consistently applied.
Appears in 1 contract
Financial Statements; Internal Controls. (a) Seller SWBS has previously delivered or made available to Buyer true, correct and complete FBMS copies of SWBS’s (i) audited consolidated financial statements of financial condition of N.I.S. as of December 31, 2016 (including the related notes and December 31, 2017 (together with all material supporting documents of N.I.S. in connection therewith); (iischedules thereto) audited statements of income, changes in stockholder's equity and cash flows for the years ended December 31, 2016 2016, 2015 and December 312014, 2017; accompanied by the unqualified audit reports of ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇, LLC, independent registered accountants (iii) an unaudited balance sheet of N.I.S. as of June 30collectively, 2018 (the “N.I.S. Reference Balance SheetAudited Financial Statements”); ) and (ivii) unaudited interim consolidated financial statements (including the unaudited statements of income, changes in stockholder's equity related notes and cash flows of N.I.S. schedules thereto) for the three six months ended June 30, 2018 2017 (collectively, the foregoing financial statements, “Unaudited Financial Statements” and together collectively with the Subsequent GAAP Audited Financial Statements, the “GAAP Financial Statements”). Subject to the notes thereto, the GAAP The Financial Statements (Aincluding any related notes and schedules thereto) were or, in the case of the Subsequent GAAP Financial Statements, will be derived from the Books and Records of N.I.S., (B) were or, in the case of the Subsequent GAAP Financial Statements, will be prepared in accordance with GAAP, consistently applied throughout all such periods, and (C) fairly present or, in the case of the Subsequent GAAP Financial Statements, will fairly present, in all material respects, the financial position, results of operations, cash flows and changes in stockholder's equity of N.I.S. as of the respective dates and for the respective periods referred to in the GAAP Financial Statements subject to, with respect to the unaudited GAAP Financial Statements, normal year-end adjustments, none of which, individually or in the aggregate, are or, in the case of the Subsequent GAAP Financial Statements, will be material, and the absence of footnotes.
(b) Seller has previously delivered to Buyer true, correct accurate and complete copies of (i) the audited annual statutory financial statements of Ozark as of and for the years ended December 31, 2016 and December 31, 2017 (together with all material supporting documents in connection therewith) and (ii) the unaudited quarterly statutory financial statement of Ozark as of June 30, 2018 (the balance sheet contained in such unaudited quarterly statutory financial statement for the period ending June 30, 2018, the “Ozark Reference Balance Sheet”) (collectively, and together with the Subsequent SAP Financial Statements, the “Statutory Statements”). No Governmental Entity has requested the refiling or amending of any Statutory Statement. Subject to the notes thereto, the Statutory Statements (A) were derived from, prepared using, and in all material respects are consistent with or, in the case of the Subsequent SAP Financial Statements, will be derived from, will be prepared using, and fairly present in all material respects will be consistent with, the Books and Records of Ozark; (B) were or, in the case of the Subsequent SAP Financial Statements, will be prepared in accordance with SAP, consistently applied throughout all such periods, and (C) fairly present or, in the case of the Subsequent SAP Financial Statements, will fairly present, in all material respects, the statutory financial position, admitted assets, liabilities and capital and surplus of Ozark at their respective dates condition and the results of operations, changes in surplus shareholders’ equity, and cash flows of Ozark at SWBS and for the respective periods indicated and the results of operations, cash flows and changes in stockholder's equity of Ozark its consolidated Subsidiaries as of the respective dates of and for the respective periods referred to in such financial statements, all in accordance with GAAP, consistently applied, subject, in the Statutory Statements subject to, with respect to case of the unaudited Statutory Unaudited Financial Statements, normal to normal, recurring year-end adjustmentsadjustments (the effect of which has not had, none of whichand would not reasonably be expected to have, individually or in the aggregate, are or, in the case of the Subsequent SAP Financial Statements, will be material. No material weakness or significant deficiency has been asserted by any Governmental Entity, or been determined to exist by Ozark management or the Ozark's independent registered public accounting firm, a Material Adverse Effect with respect to SWBS) and the absence of notes and schedules (that, if presented, would not differ materially from those included in the Audited Financial Statements). No financial statements of any entity or enterprise other than the SWBS’s Subsidiaries are required by GAAP to be included in the consolidated financial statements of SWBS. The audits of SWBS have been conducted in accordance with GAAP. Since December 31, 2016, neither SWBS nor any of its Subsidiaries has any liabilities or obligations of a nature that would be required by GAAP to be set forth on its consolidated balance sheet or in the Statutory notes thereto except for liabilities reflected or reserved against in the Financial Statements previously delivered and current liabilities incurred in the Ordinary Course of Business since December 31, 2016. True, correct and complete copies of the Financial Statements are set forth in SWBS Disclosure Schedule 3.07(a).
(b) The records, systems, controls, data and information of SWBS 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 SWBS or its Subsidiaries or accountants (including all means of access thereto and therefrom). SWBS and its Subsidiaries have devised and maintain a system of internal accounting controls sufficient to Buyer provide reasonable assurances regarding the reliability of financial reporting and there are no permitted accounting practices granted by any Insurance Regulator that were utilized in the preparation of such Statutory Statementsfinancial statements in accordance with GAAP. SWBS has disclosed based on its most recent evaluations, to its outside auditors and the audit committee of the board of directors of SWBS (i) all significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect SWBS’s ability to record, process, summarize and report financial data and (ii) any fraud, whether or not material, that involves management or other employees who have a significant role in SWBS’s internal control over financial reporting.
(c) The N.I.S. Estimated Balance Sheet will be (i) derived fromExcept as set forth in SWBS Disclosure Schedule 3.07, prepared usingsince January 1, and 2014, neither SWBS nor any of its Subsidiaries nor, to SWBS’s Knowledge, any director, officer, employee, auditor, accountant or representative of SWBS or any of its Subsidiaries has received, or otherwise had or obtained Knowledge of, any material complaint, allegation, assertion or claim regarding the accounting or auditing practices, procedures, methodologies or methods of SWBS or any of its Subsidiaries or their respective internal accounting controls, including any material complaint, allegation, assertion or claim that SWBS or any of its Subsidiaries has engaged in all material respects consistent with, the Books and Records of N.I.S.; (ii) determined in accordance with GAAP applied on a consistent basis with the periods presented in the GAAP Financial Statements previously delivered to Buyer (except to the extent of any adjustments to GAAP questionable accounting or the application thereof expressly embodied in the N.I.S. Accounting Principles); and (iii) prepared in accordance with the N.I.S. Accounting Principles and using the same accounting and actuarial methodologies and assumptions, and in each case the application thereof, Seller used in preparing the N.I.S.auditing practices.
Appears in 1 contract
Financial Statements; Internal Controls. (a) Seller Foundation Bancorp has previously delivered to Buyer true, correct PCC true and complete copies of (i) audited statements of financial condition of N.I.S. Foundation Bancorp’s consolidated balance sheets as of December 31, 2016 2013, 2014 and December 312015, 2017 (together with all material supporting documents of N.I.S. in connection therewith); (ii) audited and the related consolidated statements of income and comprehensive income, changes in stockholder's equity shareholders’ equity, and statements of cash flows for the fiscal years then ended, audited by ▇▇▇▇ ▇▇▇▇▇ LLP, including the footnotes thereto, additional or supplemental information supplied therewith and the report of ▇▇▇▇ ▇▇▇▇▇ LLP prepared in connection therewith. The documents described above, together with the call reports of the Bank for the fiscal quarter ended December 31, 2016 and December 31, 2017; (iii) an unaudited balance sheet of N.I.S. as of June 30, 2018 (the “N.I.S. Reference Balance Sheet”); and (iv) the unaudited statements of income, changes in stockholder's equity and cash flows of N.I.S. for the three months ended June 30, 2018 2015 (collectively, the foregoing financial statements, and together with the Subsequent GAAP Financial Statements, the “GAAP Foundation Bancorp Financial Statements”). Subject to the notes thereto, the GAAP Financial Statements ): (Ai) were or, in the case of the Subsequent GAAP Financial Statements, will be derived from the Books and Records of N.I.S., (B) were or, in the case of the Subsequent GAAP Financial Statements, will be have been prepared in accordance with GAAP, consistently applied throughout all such periods, the books and (C) records of Foundation Bancorp and the Bank and present fairly present or, in the case of the Subsequent GAAP Financial Statements, will fairly present, and accurately in all material respectsrespects the assets, the financial positionliabilities, results of operationsshareholders’ equity, revenues, expenses, cash flows and changes in stockholder's equity financial condition of N.I.S. Foundation Bancorp and the Bank as of the respective dates thereof, and the results of operations for the respective periods referred then ended; and (ii) have been prepared in accordance with GAAP (or in accordance with regulatory accounting principles to the extent different from GAAP and required by any Regulatory Authority or to which Foundation Bancorp and the Bank are subject) consistently applied during the periods involved.
(b) Neither Foundation Bancorp nor any Foundation Bancorp Subsidiary has any liability (whether absolute, accrued, contingent or otherwise and whether due or to become due), except for (i) those liabilities that are reflected or reserved against on the consolidated balance sheet of Foundation Bancorp at December 31, 2015 (including any notes thereto), (ii) liabilities incurred in the GAAP Financial Statements subject toordinary course of business consistent with past practice since December 31, with respect to the unaudited GAAP Financial Statements2015 which have been Previously Disclosed, normal year-end adjustments, none of which(iii) liabilities that would not be reasonably likely, individually or in the aggregate, are orto have a Material Adverse Effect, or (iv) liabilities in the case of the Subsequent GAAP Financial Statements, will be material, connection with this Agreement and the absence of footnotes.
(b) Seller has previously delivered to Buyer true, correct and complete copies of (i) the audited annual statutory financial statements of Ozark as of and for the years ended December 31, 2016 and December 31, 2017 (together with all material supporting documents in connection therewith) and (ii) the unaudited quarterly statutory financial statement of Ozark as of June 30, 2018 (the balance sheet contained in such unaudited quarterly statutory financial statement for the period ending June 30, 2018, the “Ozark Reference Balance Sheet”) (collectively, and together with the Subsequent SAP Financial Statements, the “Statutory Statements”). No Governmental Entity has requested the refiling or amending of any Statutory Statement. Subject to the notes thereto, the Statutory Statements (A) were derived from, prepared using, and in all material respects are consistent with or, in the case of the Subsequent SAP Financial Statements, will be derived from, will be prepared using, and in all material respects will be consistent with, the Books and Records of Ozark; (B) were or, in the case of the Subsequent SAP Financial Statements, will be prepared in accordance with SAP, consistently applied throughout all such periods, and (C) fairly present or, in the case of the Subsequent SAP Financial Statements, will fairly present, in all material respects, the statutory financial position, admitted assets, liabilities and capital and surplus of Ozark at their respective dates and the results of operations, changes in surplus and cash flows of Ozark at and for the respective periods indicated and the results of operations, cash flows and changes in stockholder's equity of Ozark as of the respective dates and for the respective periods referred to in the Statutory Statements subject to, with respect to the unaudited Statutory Statements, normal year-end adjustments, none of which, individually or in the aggregate, are or, in the case of the Subsequent SAP Financial Statements, will be material. No material weakness or significant deficiency has been asserted by any Governmental Entity, or been determined to exist by Ozark management or the Ozark's independent registered public accounting firm, with respect to any of the Statutory Statements previously delivered to Buyer and there are no permitted accounting practices granted by any Insurance Regulator that were utilized in the preparation of such Statutory Statementstransactions contemplated hereby.
(c) The N.I.S. Estimated Balance Sheet records, systems, controls, data and information of each of Foundation Bancorp and the Foundation Bancorp 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 Foundation Bancorp (subject to Foundation Bancorp’s contract for service bureau and other technology services and customary agreements with third party vendors) or a Foundation Bancorp Subsidiary 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 Section 4.3(f) hereof.
(d) Since December 31, 2013, (A) neither Foundation Bancorp, nor any of the Foundation Bancorp Subsidiaries nor, to Foundation Bancorp’s Knowledge, any director, officer, employee, auditor, accountant or representative of Foundation Bancorp or the Foundation Bancorp Subsidiaries, has received or otherwise had or obtained knowledge of any material complaint, allegation, assertion or claim, whether written or oral, regarding the accounting or auditing practices, procedures, methodologies or methods of Foundation Bancorp or any Foundation Bancorp Subsidiary or their respective internal accounting or financial reporting controls, including any material complaint, allegation, assertion or claim that Foundation Bancorp or any Foundation Bancorp Subsidiary has engaged in questionable accounting or auditing practices, (B) no attorney representing Foundation Bancorp or any Foundation Bancorp Subsidiary, whether or not employed by Foundation Bancorp or any Foundation Bancorp Subsidiary, has reported evidence of a material violation of securities laws, breach of fiduciary duty or similar violation by Foundation Bancorp or any Foundation Bancorp Subsidiary or any of their respective officers, directors, employees or agents to the Foundation Bancorp Board, or any committee thereof or to any director or officer of Foundation Bancorp or any Foundation Bancorp Subsidiary, and (C) neither Foundation Bancorp, nor any of the Foundation Bancorp Subsidiaries, has Knowledge of a violation of securities laws, breach of fiduciary duty or similar violation by Foundation Bancorp or any Foundation Bancorp Subsidiary or any of their respective officers, directors, employees or agents. Foundation Bancorp has delivered or made available to PCC copies of all management or other letters delivered to Foundation Bancorp by its independent accountants in connection with any of the financial statements of Foundation Bancorp or by such accountants regarding the internal controls or internal compliance procedures and systems of Foundation Bancorp or any Foundation Bancorp Subsidiary issued at any time since January 1, 2013, and will make available for inspection by PCC or its representatives, at such times and places as PCC may reasonably request, reports and working papers produced or developed by such accountants, subject to the approval, terms and conditions of those accountants. ▇▇▇▇ ▇▇▇▇▇ LLP has not resigned (or informed Foundation Bancorp that it intends to resign) or been dismissed as the independent public accountants of Foundation Bancorp as a result of or in connection with any disagreements with Foundation Bancorp on a matter of accounting principles or practices, financial statement disclosure or auditing scope or procedure.
(e) Since December 31, 2013, each of Foundation Bancorp and the Foundation Bancorp Subsidiaries have timely filed all reports, registrations, statements and submissions, together with any amendments required to be made with respect thereto, required to be filed with any Regulatory Authority and all other material reports and statements required to be filed, including, without limitation, any report or statement required to be filed pursuant to the laws of the United States and the rules and regulations of any Regulatory Authority, and have paid all fees and assessments due and payable in connection therewith. As of their respective dates, each of such reports, registrations, statements and submissions (i) derived from, prepared using, were true and complete in all material respects consistent with(or amended to be so promptly following discovery of any discrepancy), (ii) complied in all material respects with all of the Books laws, rules and Records regulations of N.I.S.the applicable Regulatory Authority with which such reports, registrations, statements and submissions were filed and (iii) did not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading. The capital stock of Foundation Bancorp or any Foundation Bancorp Subsidiary is not required to be registered, and is not registered, under Section 12 of the Exchange Act. Neither Foundation Bancorp nor any Foundation Bancorp Subsidiary is required to file periodic reports with the SEC pursuant to Section 13 or 15(d) of the Exchange Act.
(f) Each of Foundation Bancorp and the Foundation Bancorp Subsidiaries maintains a system of internal accounting controls sufficient to provide reasonable assurance: (i) that transactions are executed in accordance with management’s general or specific authorizations, (ii) regarding the reliability of financial reporting and the financial statements, and (iii) that transactions are recorded as necessary to permit preparation of financial statements in conformity with GAAP (or in accordance with regulatory accounting principles to the extent different from GAAP and required by any Regulatory Authority or to which Foundation Bancorp and the Bank are subject) and to maintain asset accountability. Foundation Bancorp has disclosed, based on its most recent evaluation prior to the date hereof, to its independent auditors and the audit committee of the Foundation Bancorp Board (1) any deficiencies, significant deficiencies or material weaknesses in the design or operation of internal controls over financial reporting which could adversely affect its ability to record, process, summarize and report financial data and has identified for its independent auditors any deficiencies, significant deficiencies or material weaknesses in such internal controls, and (2) any fraud, whether or not material, that involves management or other employees who have a significant role in its internal controls, or controls over financial reporting.
(g) Section 4.3(g) of the Foundation Bancorp Disclosure Schedule sets forth a true and complete list of all entities affiliated with Foundation Bancorp or any Foundation Bancorp Subsidiary, including without limitation, all special purpose entities, limited purpose entities and qualified special purpose entities in which Foundation Bancorp or any Foundation Bancorp Subsidiary has an economic or management interest. Section 4.3(g) of the Foundation Bancorp Disclosure Schedule also sets forth a true and complete list of all transactions, arrangements, and other relationships between or among any such affiliated entity, Foundation Bancorp, any Foundation Bancorp Subsidiary, and any executive officer or director of Foundation Bancorp or any Foundation Bancorp Subsidiary, that are not reflected in the consolidated financial statements of Foundation Bancorp (each, a “Foundation Bancorp Off Balance Sheet Transaction”), along with the following information with respect to each such Foundation Bancorp Off Balance Sheet Transaction: (i) the business purpose, activities, and economic substance; (ii) determined in accordance with GAAP applied on a consistent basis with the periods presented in key terms and conditions; (iii) the GAAP Financial Statements previously delivered potential risk to Buyer (except to the extent of Foundation Bancorp or any adjustments to GAAP or the application thereof expressly embodied in the N.I.S. Accounting Principles)Foundation Bancorp Subsidiary; and (iiiiv) prepared in accordance with the N.I.S. Accounting Principles and using the same accounting and actuarial methodologies and assumptionsamount of any guarantee, and in each case the application thereofline of credit, Seller used in preparing the N.I.S.standby letter of credit or commitment, or any other type of arrangement, that could require Foundation Bancorp or any Foundation Bancorp Subsidiary to fund any obligations under any such transaction.
Appears in 1 contract
Financial Statements; Internal Controls. (a) Seller has previously delivered to Buyer true, correct and complete copies The following financial statements are attached as Section 2.3 of the Company Disclosure Schedule: (i) the audited consolidated financial statements of financial condition of N.I.S. the Company and its Subsidiaries as of December 31, 2016 2010 and December 312009, 2017 (including the balance sheet and the related statements of operations, statements of changes in stockholders’ equity and statements of cash flows of the Company and its Subsidiaries as of and for the fiscal years then ended, including in each case the notes thereto, together with all material supporting documents the report of N.I.S. in connection therewiththe independent certified public accounting firm set forth therein (the “Audited Financial Statements”); and (ii) audited the unaudited financial statements of income, changes in stockholder's equity the Company and cash flows for the years ended December 31, 2016 and December 31, 2017; (iii) an unaudited balance sheet of N.I.S. Subsidiaries as of June 30, 2018 2011, including the balance sheet and the related statement of operations, statement of changes in stockholders’ equity and statement of cash flows of the Company and its Subsidiaries as of and for the six (6) month period then ended (such financial statements, the “N.I.S. Unaudited Financial Statements”; the balance sheet of the Company and its Subsidiaries as of June 30, 2011, the “Reference Balance Sheet”; the date of the Reference Balance Sheet, the “Reference Balance Sheet Date”); (the Audited Financial Statements and (iv) the unaudited statements of incomeUnaudited Financial Statements, changes in stockholder's equity and cash flows of N.I.S. for the three months ended June 30, 2018 (collectively, the foregoing financial statements, and together with the Subsequent GAAP Financial Statements, the “GAAP Financial Statements”). Subject to the notes thereto, the GAAP The Financial Statements (A) were or, in the case of the Subsequent GAAP Financial Statements, will be derived from the Books and Records of N.I.S., (B) were or, in the case of the Subsequent GAAP Financial Statements, will be have been prepared in accordance with GAAP, consistently applied throughout all such periods, and (C) fairly present orexcept, in the case of the Subsequent GAAP Unaudited Financial Statements, will for the absence of footnotes (that, if presented, would not differ materially from those included in the Audited Financial Statements) and normal recurring year end adjustments). The Financial Statements fairly present, in all material respects, the financial position, position of the Company and its Subsidiaries and the results of operations, cash flows operations and changes in stockholder's equity of N.I.S. cash flows as of the respective dates and for the respective periods referred to in the GAAP specified. The Financial Statements subject to, with respect to the unaudited GAAP Financial Statements, normal year-end adjustments, none of which, individually or in the aggregate, are or, in the case of the Subsequent GAAP Financial Statements, will be material, and the absence of footnotes.
(b) Seller has previously delivered to Buyer true, correct and complete copies of (i) the audited annual statutory financial statements of Ozark as of and for the years ended December 31, 2016 and December 31, 2017 (together with all material supporting documents in connection therewith) and (ii) the unaudited quarterly statutory financial statement of Ozark as of June 30, 2018 (the balance sheet contained in such unaudited quarterly statutory financial statement for the period ending June 30, 2018, the “Ozark Reference Balance Sheet”) (collectively, and together with the Subsequent SAP Financial Statements, the “Statutory Statements”). No Governmental Entity has requested the refiling or amending of any Statutory Statement. Subject to the notes thereto, the Statutory Statements (A) were derived from, prepared using, and in all material respects are consistent with or, in the case of the Subsequent SAP Financial Statements, will be derived from, will be prepared using, and in all material respects will be consistent with, the Books and Records of Ozark; (B) were or, in the case of the Subsequent SAP Financial Statements, will be have been prepared in accordance with SAP, consistently applied throughout all such periods, the books and records of the Company and its Subsidiaries. The Company and its Subsidiaries have made and kept (Cand given Parent access to their) fairly present orbooks and records and accounts, in the case of the Subsequent SAP Financial Statementsaccordance with applicable Legal Requirements, will which accurately and fairly presentreflect, in all material respects, the statutory financial position, admitted assets, liabilities activities of Company and capital and surplus of Ozark at their respective dates and the results of operations, changes in surplus and cash flows of Ozark at and for the respective periods indicated and the results of operations, cash flows and changes in stockholder's equity of Ozark as of the respective dates and for the respective periods referred to in the Statutory Statements subject to, with respect to the unaudited Statutory Statements, normal year-end adjustments, none of which, individually or in the aggregate, are or, in the case of the Subsequent SAP Financial Statements, will be material. No material weakness or significant deficiency has been asserted by any Governmental Entity, or been determined to exist by Ozark management or the Ozark's independent registered public accounting firm, with respect to any of the Statutory Statements previously delivered to Buyer and there are no permitted accounting practices granted by any Insurance Regulator that were utilized in the preparation of such Statutory Statementsits Subsidiaries.
(cb) The N.I.S. Estimated Balance Sheet will be Neither the Company, any Acquired Entity or any Center Entity, nor, to the Knowledge of the Company, any director, officer, employee, auditor, accountant or representative of the Company or any Acquired Entity or any Center Entity, has within the last three (i3) derived fromyears received or has otherwise had or obtained Knowledge of any material complaint, prepared usingallegation, and in all material respects consistent with, the Books and Records of N.I.S.; assertion or claim (ii) determined in accordance with GAAP applied on a consistent basis with the periods presented other than discussions among accounting professionals in the GAAP Financial Statements previously delivered to Buyer (except to ordinary course which were resolved in the extent ordinary course), whether written or oral, regarding the accounting or auditing practices, procedures, methodologies or methods of the Company or any Acquired Entity or any Center Entity or internal control over financial reporting of the Company or any Acquired Entity or any Center Entity, including knowledge of any adjustments to GAAP material complaint, allegation, assertion or claim that the application thereof expressly embodied Company or any Acquired Entity or any Center Entity has engaged in the N.I.S. Accounting Principles); and (iii) prepared in accordance with the N.I.S. Accounting Principles and using the same questionable or improper accounting and actuarial methodologies and assumptions, and in each case the application thereof, Seller used in preparing the N.I.S.practices.
Appears in 1 contract
Financial Statements; Internal Controls. (a) Seller has previously delivered to Buyer true, correct and complete copies The audited consolidated balance sheet of (i) audited statements of financial condition of N.I.S. DK as of December 31, 2016 2018 (the “DK Balance Sheet Date”) and December 31, 2017 (together with the audited consolidated statement of operations, statement of redeemable convertible preferred stock and stockholders’ deficit and statements of cash flows of DK and its Subsidiaries as of the DK Balance Sheet Date, together with the auditor’s reports thereon (the “DK Audited Financial Statements”), present fairly, in all material supporting documents respects, the financial position of N.I.S. in connection therewith); (ii) audited statements DK and its Subsidiaries as of incomeDecember 31, changes in stockholder's equity 2018 and December 31, 2017 and the results of its operations and its cash flows for the years ended December 31, 2016 then ended. The DK Audited Financial Statements were prepared and December 31, 2017; audited in accordance with accounting principles generally accepted in the United States of America (iii) an unaudited balance sheet of N.I.S. as of June 30, 2018 (the “N.I.S. Reference Balance SheetU.S. GAAP”); .
(b) DK and (iv) its Subsidiaries have made available to the parties prior to the date of this Agreement the unaudited consolidated balance sheets and related unaudited consolidated statements of incomeoperations, changes in stockholder's equity redeemable convertible preferred stock and stockholders’ deficit and cash flows of N.I.S. for the three months ended June DK and its Subsidiaries as of September 30, 2018 2019 (collectively, the foregoing financial statements, and together with the Subsequent GAAP Financial Statements, the “GAAP DK Unaudited Financial Statements”). Subject to the notes theretothereto and normal year-end audit adjustments that are not material in amount or effect, the GAAP DK Unaudited Financial Statements (A) were or, in the case of the Subsequent GAAP Financial Statements, will be derived from the Books and Records of N.I.S., (B) were or, in the case of the Subsequent GAAP Financial Statements, will be prepared in accordance with and subject to the standards, principles and practices specified in the DK Audited Financial Statements and in accordance with applicable Law and U.S. GAAP, consistently applied throughout all such periods, and (C) fairly present or, in the case of the Subsequent GAAP Financial Statements, will fairly presentfairly, in all material respects, of the financial position, results position of operations, cash flows DK and changes in stockholder's equity of N.I.S. its Subsidiaries as of the respective dates and for the respective periods referred to in the GAAP Financial Statements subject to, with respect to the unaudited GAAP Financial Statements, normal year-end adjustments, none of which, individually or in the aggregate, are or, in the case of the Subsequent GAAP Financial Statements, will be material, and the absence of footnotes.
(b) Seller has previously delivered to Buyer true, correct and complete copies of (i) the audited annual statutory financial statements of Ozark as of and for the years ended December 31, 2016 and December 31, 2017 (together with all material supporting documents in connection therewith) and (ii) the unaudited quarterly statutory financial statement of Ozark as of June September 30, 2018 (the balance sheet contained in such unaudited quarterly statutory financial statement for the period ending June 30, 2018, the “Ozark Reference Balance Sheet”) (collectively, and together with the Subsequent SAP Financial Statements, the “Statutory Statements”). No Governmental Entity has requested the refiling or amending of any Statutory Statement. Subject to the notes thereto, the Statutory Statements (A) were derived from, prepared using, and in all material respects are consistent with or, in the case of the Subsequent SAP Financial Statements, will be derived from, will be prepared using, and in all material respects will be consistent with, the Books and Records of Ozark; (B) were or, in the case of the Subsequent SAP Financial Statements, will be prepared in accordance with SAP, consistently applied throughout all such periods, and (C) fairly present or, in the case of the Subsequent SAP Financial Statements, will fairly present, in all material respects, the statutory financial position, admitted assets, liabilities and capital and surplus of Ozark at their respective dates 2019 and the results of operations, changes in surplus its operations and its cash flows of Ozark at and for the respective periods indicated and the results of operations, cash flows and changes in stockholder's equity of Ozark nine-month period ended as of the respective dates and for the respective periods referred to in the Statutory Statements subject toSeptember 30, with respect to the unaudited Statutory Statements, normal year-end adjustments, none of which, individually or in the aggregate, are or, in the case of the Subsequent SAP Financial Statements, will be material. No material weakness or significant deficiency has been asserted by any Governmental Entity, or been determined to exist by Ozark management or the Ozark's independent registered public accounting firm, with respect to any of the Statutory Statements previously delivered to Buyer and there are no permitted accounting practices granted by any Insurance Regulator that were utilized in the preparation of such Statutory Statements2019.
(c) The N.I.S. Estimated Balance Sheet will be DK and its Subsidiaries maintain a system of internal accounting controls and procedures that is sufficient to provide reasonable assurance that (i) derived fromtransactions are executed in accordance with management’s general or specific authorization, prepared using(ii) transactions are recorded as necessary to permit preparation of financial statements in conformity with U.S. GAAP and to maintain asset accountability for DK’s assets, (iii) access to material assets is permitted only in accordance with management’s general or specific authorization, (iv) the reporting of DK’s assets is compared with existing assets at regular intervals and (v) accounts, notes and other receivables are recorded accurately and reserves established against them based upon actual prior experience and in accordance with U.S. GAAP, and proper procedures are implemented for the collection thereof on a commercially reasonable basis. During the three (3) financial years ending on the DK Balance Sheet Date, neither DK nor any of its Subsidiaries (including their personnel and independent accountants of DK or any of its Subsidiaries who participated in the preparation or review of DK’s financial statements or the internal accounting controls) has identified or been made aware of any fraud, whether or not material, that involves management of DK or any of its Subsidiaries or any of their personnel involved in financial reporting. The DK Audited Financial Statements and the DK Unaudited Financial Statements, when delivered by DK for inclusion in the Registration Statement for filing with the SEC following the date of this Agreement in accordance with Section 9.01, will comply in all material respects consistent with, the Books and Records of N.I.S.; (ii) determined in accordance with GAAP applied on a consistent basis with the periods presented in the GAAP Financial Statements previously delivered to Buyer (except to the extent of any adjustments to GAAP or the application thereof expressly embodied in the N.I.S. Accounting Principles); applicable accounting requirements and (iii) prepared in accordance with the N.I.S. Accounting Principles rules and using regulations of the same accounting SEC and actuarial methodologies and assumptions, and the Securities Act in each case the application thereof, Seller used in preparing the N.I.S.effect as of such date.
Appears in 1 contract
Sources: Business Combination Agreement (Diamond Eagle Acquisition Corp. \ DE)