Financial Statements; No Undisclosed Liabilities. (a) The Company has delivered to Buyer an unaudited balance sheet of the Company as of December 31, for each of the years 2014 and 2013 and the related statement of operations and retained earnings for the twelve (12) months ended December 31 for each of the years 2014 and 2013. The Company has also delivered to Buyer the monthly unaudited balance sheets for the five (5) months ended May 31, 2015 and the related monthly statement of operations and retained earnings. All the financial statements referenced above are herein referred to as the “Financial Statements” and are attached to Section 2.8 of the Company Disclosure Schedule. The Financial Statements (x) fairly present in all material respects the financial position and results of operations of the Company as of the dates and for the periods indicated, in accordance with the applicable Historical Accounting Principles, applied on a consistent basis during such periods and (y) the Financial Statements have been prepared from, and are in accordance with, the books and records of the Company. The Company is not party to any off-balance sheet Contract or other “off balance sheet arrangements” (as defined in Item 303(a) of Regulation S-K under the Securities Exchange Act of 1934, as amended), where the intended effect of such Contract is to avoid disclosure of any material transaction involving, or material Liabilities of, the Company. (b) The Company has no Liabilities of any nature whatsoever (whether accrued, absolute, determined, contingent or otherwise and whether due or to become due), except (i) Liabilities reflected or reserved against in the balance sheet of the Company as of December 31, 2014 included in the Financial Statements, (ii) Liabilities incurred after December 31, 2014 in the Ordinary Course of Business, (iii) Liabilities incurred in connection with this Agreement including amounts to be included in Company Transaction Expenses for employee bonuses to be paid by the Company, (iv) Liabilities arising out of the Promissory Note and (v) Liabilities that have not been and would not reasonably be expected to be, material to the Company.
Appears in 4 contracts
Sources: Stock Purchase Agreement (Match Group, Inc.), Stock Purchase Agreement (Match Group, Inc.), Stock Purchase Agreement (Match Group, Inc.)
Financial Statements; No Undisclosed Liabilities. (a) The Company has delivered to Buyer an Correct and complete copies of the unaudited combined balance sheet of the Company TS Business as of December 31at July 2, for each of 2016 (the years 2014 “Balance Sheet”) and 2013 and the related statement of operations and retained earnings for the twelve (12) months ended December 31 for each of the years 2014 and 2013. The Company has also delivered to Buyer the monthly unaudited balance sheets for the five (5) months ended May 31June 27, 2015 and the related monthly statement unaudited combined statements of operations income and retained earnings. All cash flows for each of the financial statements referenced above are herein periods then ended and the fiscal year ended June 28, 2014 (collectively referred to as the “Unaudited Financial Statements” and ”) are attached to hereto as Section 2.8 3.7 of the Company Seller Disclosure ScheduleSchedules. The Each of the Unaudited Financial Statements (x) were derived from the books and records of the Seller and its Affiliates and fairly present presents, in all material respects respects, the combined financial position and results of operations of the Company TS Business as of at the respective dates thereof and for the respective periods indicated, indicated therein in accordance with the applicable Historical Accounting PrinciplesGAAP, except for as described in such Unaudited Financial Statements, applied on a consistent basis during such throughout the periods and covered thereby.
(yb) the The Audited Financial Statements will have been prepared from, and are in accordance with, derived from the books and records of the Company. The Company is not party to any off-balance sheet Contract or other “off balance sheet arrangements” (as defined Seller and its Affiliates and will fairly present, in Item 303(a) of Regulation S-K under the Securities Exchange Act of 1934, as amended), where the intended effect of such Contract is to avoid disclosure of any all material transaction involving, or material Liabilities ofrespects, the Companycombined financial position and results of operations of the TS Business as at the respective dates thereof and for the respective periods indicated therein in accordance with GAAP applied on a consistent basis throughout the periods covered thereby.
(bc) The Company has There are no Liabilities of any nature whatsoever (whether accrued, absolute, determined, contingent the TS Business or otherwise and whether due the Companies or their Subsidiaries of a type required to become due)be reflected or reserved for on a combined balance sheet of the TS Business or in the notes thereto prepared in accordance with GAAP, except for (i) Liabilities reflected or reserved against in for on the balance sheet of the Company as of December 31, 2014 included in the Financial StatementsBalance Sheet, (ii) Liabilities incurred after December 31that have arisen since July 2, 2014 2016 in the Ordinary Course ordinary course of Businessthe operation of the TS Business consistent with past practice, (iii) Liabilities incurred arising out of or in connection with this Agreement including amounts to be included in Company Transaction Expenses for employee bonuses to be paid by Agreement, the CompanyAncillary Agreements and the transactions contemplated hereby and thereby, and (iv) Liabilities arising out of Liabilities, individually or in the Promissory Note and (v) Liabilities aggregate, that have not been had and would not reasonably be expected to be, material to the Companyhave a Material Adverse Effect.
Appears in 3 contracts
Sources: Interest Purchase Agreement, Interest Purchase Agreement (Avnet Inc), Interest Purchase Agreement (Tech Data Corp)
Financial Statements; No Undisclosed Liabilities. (a) The Company has delivered made available to Buyer an unaudited balance sheet complete and correct copies of the Company as of December 31Financial Statements, for each together with the report of the years 2014 and 2013 and Company’s independent auditors thereon with respect to the related statement of operations and retained earnings for the twelve (12) months ended December 31 for each of the years 2014 and 2013. The Company has also delivered to Buyer the monthly unaudited balance sheets for the five (5) months ended May 31, 2015 and the related monthly statement of operations and retained earnings. All the financial statements referenced above are herein referred to as the “Audited Financial Statements” and are attached to Section 2.8 of the Company Disclosure Schedule. The Financial Statements have been prepared in accordance with GAAP applied on a consistent basis (xexcept as may be indicated in the notes thereto) and present fairly present in all material respects the financial position and position, results of operations and cash flows of the Company as of and the dates Subsidiaries at and for the respective periods indicatedindicated (subject, in accordance with the applicable Historical Accounting Principles, applied on a consistent basis during such periods and (y) the Financial Statements have been prepared from, and are in accordance with, the books and records case of the Company. The Company is not party unaudited Financial Statements, to any offnormal year-balance sheet Contract or other “off balance sheet arrangements” (as defined in Item 303(a) of Regulation S-K under the Securities Exchange Act of 1934, as amendedend adjustments), where the intended effect of such Contract is to avoid disclosure of any material transaction involving, or material Liabilities of, the Company.
(b) The Neither the Company nor any of the Subsidiaries has no any Liabilities that would be required to be set forth on or reserved against in a consolidated balance sheet of any nature whatsoever (whether accrued, absolute, determined, contingent or otherwise the Company and whether due or to become due)the Subsidiaries prepared in accordance with GAAP, except (i) Liabilities reflected disclosed or reserved against in the balance sheet of the Company as of December 31, 2014 included Reference Balance Sheet or specifically disclosed in the Financial Statementsnotes thereto, (ii) Liabilities that were incurred after December 31, 2014 the Balance Sheet Date in the Ordinary Course ordinary course of Businessbusiness, (iii) Liabilities that have not had and would not, individually and in the aggregate, reasonably be expected to have a Company Material Adverse Effect and (iv) Liabilities incurred in connection with this Agreement including amounts and the transactions contemplated hereby.
(c) The Company and the Subsidiaries have devised and maintained systems of internal accounting controls with respect to be included their businesses sufficient to provide reasonable assurances that (i) all transactions are executed in Company Transaction Expenses accordance with management’s general or specific authorization, (ii) all transactions are recorded as necessary to permit the preparation of financial statements in conformity with GAAP and to maintain proper accountability for employee bonuses items, (iii) access to be paid by the Company, their property and assets is permitted only in accordance with management’s general or specific authorization and (iv) Liabilities arising out recorded accountability for items is compared with actual levels at reasonable intervals and appropriate action is taken with respect to any differences.
(d) The Company maintains disclosure controls and procedures (as such term is defined in Rule 13a-15(e) under the Exchange Act) that comply with the requirements of the Promissory Note Exchange Act; such disclosure controls and (v) Liabilities procedures have been designed to ensure that have not been material information relating to the Company and would not reasonably be expected to be, material its subsidiaries is made known to the Company’s disclosure practices committee by others within those entities; and such disclosure controls and procedures are effective at a reasonable assurance level.
Appears in 3 contracts
Sources: Stock Purchase Agreement (Univar Nv), Stock Purchase Agreement (CD&R Univar Holdings, L.P.), Stock Purchase Agreement (Univar Inc.)
Financial Statements; No Undisclosed Liabilities. (a) The Section 3.12 of the Company has delivered to Buyer an Disclosure Schedule contains the following financial statements (collectively, the “Financial Statements”):
(i) the unaudited balance sheet of the Company as of May 31, 2011 (the “Interim Balance Sheet”) and the related statements of income for the five-month period then ended; and
(ii) the unaudited balance sheet of the Company as of December 31, for each of the years 2014 and 2013 2010 (including Default Servicing, Inc. from January 1, 2010 to January 15, 2010), and the related statement of operations and retained earnings income for the respective twelve (12) months ended December 31 for each month period then ended.
(b) The Financial Statements were prepared in accordance with the books and records of the years 2014 and 2013. The Company has also delivered to Buyer the monthly unaudited balance sheets Company, in accordance with GAAP, consistently applied, except for the five (5) months ended May 31, 2015 and the related monthly statement absence of operations and retained earnings. All the financial statements referenced above are herein referred to complete footnote disclosure as the “Financial Statements” and are attached to Section 2.8 of the Company Disclosure Schedulerequired by GAAP. The Financial Statements (x) present fairly present in all material respects accordance with GAAP the financial position and results of operations condition of the Company as of the dates indicated and the results of operations of the Company for the respective periods indicated, in accordance with the applicable Historical Accounting Principlessubject to changes resulting from normal, applied on a consistent basis during such periods and (y) the recurring period-end audit adjustments, which adjustments shall not be material. The Financial Statements have been prepared from, and are in accordance with, reflect the books and records consistent application of GAAP throughout the Company. The Company is not party to any off-balance sheet Contract or other “off balance sheet arrangements” (as defined in Item 303(a) of Regulation S-K under the Securities Exchange Act of 1934, as amended), where the intended effect of such Contract is to avoid disclosure of any material transaction involving, or material Liabilities of, the Companyperiods involved.
(c) Except as and to the extent the amounts are specifically accrued or disclosed in the Interim Balance Sheet, the Company does not have any Liabilities, whether or not required by GAAP to be reflected in the Interim Balance Sheet, except for (a) Liabilities under an executory portion of a Contract, (b) The Company has no Liabilities of any nature whatsoever (whether accrued, absolute, determined, contingent or otherwise for costs and whether due or to become due), except (i) Liabilities reflected or reserved against in the balance sheet of the Company as of December 31, 2014 included in the Financial Statements, (ii) Liabilities incurred after December 31, 2014 in the Ordinary Course of Business, (iii) Liabilities expenses incurred in connection with the transactions contemplated by this Agreement including amounts to be included in Company Transaction Expenses for employee bonuses to be paid by the CompanyAgreement, (iv) Liabilities arising out of the Promissory Note and (vc) Liabilities that were incurred in the ordinary course of business consistent with past practice since the date of the Interim Balance Sheet.
(d) Except as set forth in Section 3.12(d) of the Company Disclosure Schedule, the Company does not have not been any outstanding Indebtedness and would not reasonably as of the Closing, all Liens on the Acquired Assets will be expected to be, material to the Companydischarged.
Appears in 2 contracts
Sources: Asset Purchase Agreement (Homeland Security Capital CORP), Asset Purchase Agreement (DJSP Enterprises, Inc.)
Financial Statements; No Undisclosed Liabilities. (a) The Company Seller has delivered to Buyer Acquirer (a) unaudited consolidated balance sheets of the Company and its Subsidiaries as at December 31, 2007 and 2006, and the related unaudited consolidated statements of income for each of the fiscal years then ended, and (b) an unaudited consolidated balance sheet of the Company and its Subsidiaries as of December 31at November 30, for each of the years 2014 and 2013 2008, and the related unaudited consolidated statement of operations and retained earnings income for the twelve eleven month period then ended (12) months ended December 31 for each of the years 2014 and 2013“Interim Financial Statements”). The Company has also delivered to Buyer the monthly unaudited balance sheets for the five (5) months ended May 31, 2015 and the related monthly statement of operations and retained earnings. All the financial statements referenced above are herein referred to in this Section 4.6 (including the Interim Financial Statements) are sometimes collectively referred to in this Agreement as the “Financial Statements.” and are attached to Section 2.8 Except as set forth on Schedule 4.6 of the Company Disclosure Schedule. The , each Financial Statements (x) fairly present in all material respects the financial position and results of operations of the Company as of the dates and for the periods indicated, Statement has been prepared in accordance with the applicable Historical Accounting Principles, U.S. generally accepted accounting principals (“GAAP”) applied on a consistent basis during such periods and (y) the Financial Statements have been prepared frombasis, and are each is in accordance with, with the books and records of the CompanyCompany and its Subsidiaries. The Company is not party to any off-balance sheet Contract or other “off balance sheet arrangements” (as defined in Item 303(a) of Regulation S-K under the Securities Exchange Act of 1934, as amended), where the intended effect of such Contract is to avoid disclosure of any material transaction involving, or material Liabilities of, the Company*** *** .
(b) The Company has no Liabilities and its Subsidiaries do not have any liability, loss, cost, or expense, whether fixed or contingent, of any a nature whatsoever required to be reflected on a balance sheet (whether accrued, absolute, determined, contingent or otherwise and whether due or to become due), in the notes thereto) prepared in accordance with GAAP except for (i) Liabilities reflected liabilities appearing on, or accrued or reserved against in the balance sheet of the Company as of December 31in, 2014 included in the Financial Statements, (ii) Liabilities incurred liabilities which have arisen after December 31November 30, 2014 2008 (the “Financial Date”) in the Ordinary Course ordinary course of Businessbusiness consistent with past practice and which are either immaterial in amount or shall be reflected on the Closing Date Balance Sheet (as defined below) and which did not result from, (iii) Liabilities incurred arise out of, relate to, are not in connection with this Agreement including amounts to be included in the nature of or were not caused by any breach of contract, breach of warranty, tort, infringement or violation of law. Between the Financial Date and the Closing Date, the Company Transaction Expenses for employee bonuses to be paid by the Company, (iv) Liabilities arising out of the Promissory Note and (v) Liabilities that have did not been and would not reasonably be expected to be, material to the Companytransfer or sell any long term assets.
Appears in 2 contracts
Sources: Stock Acquisition Agreement (Active Network Inc), Stock Acquisition Agreement (Active Network Inc)
Financial Statements; No Undisclosed Liabilities. (a) The Each of the consolidated balance sheets included in or incorporated by reference into the Company has delivered to Buyer an unaudited balance sheet SEC Documents (including the related notes and schedules) fairly presents, or, in the case of Company SEC Documents filed after the Agreement Date, will fairly present, the consolidated financial position of the Company as of December 31, for its date and each of the years 2014 and 2013 and the related statement consolidated statements of operations and retained earnings for comprehensive loss, shareholders’ deficit and cash flows included in or incorporated by reference into the twelve Company SEC Documents (12including any related notes and schedules) months ended December 31 for each of the years 2014 and 2013. The Company has also delivered to Buyer the monthly unaudited balance sheets for the five (5) months ended May 31such financial statements, 2015 and the related monthly statement of operations and retained earnings. All the financial statements referenced above are herein referred to as collectively, the “Financial Statements” ”) fairly presents, or in the case of Company SEC Documents filed after the Agreement Date, will fairly present, the consolidated results of operations, accumulated deficit and are attached cash flows, as applicable, for the periods set forth therein (subject, in the case of unaudited financial statements, to Section 2.8 notes and normal year-end audit adjustments that will not be material in amount or effect), in each case, in accordance with GAAP during the periods presented, except as may be disclosed therein or in the notes thereto (or, in the case of unaudited Financial Statements, as permitted by Form 10-Q of the Company Disclosure ScheduleSEC). The At the time each such Financial Statements (x) fairly present Statement was filed, such Financial Statement complied in all material respects with all applicable accounting requirements and the financial position published rules and results of operations regulations of the Company as of the dates and for the periods indicated, in accordance SEC with the applicable Historical Accounting Principles, applied on a consistent basis during such periods and (y) the Financial Statements have been prepared from, and are in accordance with, the books and records of the Company. The Company is not party to any off-balance sheet Contract or other “off balance sheet arrangements” (as defined in Item 303(a) of Regulation S-K under the Securities Exchange Act of 1934, as amended), where the intended effect of such Contract is to avoid disclosure of any material transaction involving, or material Liabilities of, the Companyrespect thereto.
(b) The Company has There are no Liabilities of the Company or any nature whatsoever (whether accruedof the Company Subsidiaries, absolute, determined, contingent or otherwise and whether due or to become due), except other than: (i) Liabilities reflected or disclosed and reserved against in the balance sheet of for on the Company as of December 31, 2014 included in the Financial Statements, Balance Sheet; (ii) Liabilities incurred after December 31, 2014 the Company Balance Sheet Date in the Ordinary Course ordinary course of Business, business (excluding Liabilities arising out of any breach of or default under a Contract or violation of Law); (iii) Liabilities incurred obligations expressly contemplated by, and fees and expenses payable to the Company’s external Representatives for services rendered in connection with with, this Agreement including amounts to be included in Company Transaction Expenses for employee bonuses to be paid by and the Company, Transactions; (iv) Liabilities under Contracts of the Company or a Company Subsidiary existing as of the Agreement Date or entered into after the Agreement Date as permitted under Section 5.01 (excluding Liabilities arising out of the Promissory Note any breach or default under such Contracts); and (v) Liabilities that have not been and would not not, individually or in the aggregate, reasonably be expected to be, material to the Companyhave a Company Material Adverse Effect.
Appears in 2 contracts
Sources: Merger Agreement (Myovant Sciences Ltd.), Agreement and Plan of Merger (Myovant Sciences Ltd.)
Financial Statements; No Undisclosed Liabilities. (a) The Company has delivered to Buyer an audited and unaudited balance sheet consolidated financial statements of the Company (including any notes and schedules thereto) included in the Company SEC Documents or incorporated therein by reference (i) complied, as of December 31their respective dates, for each of the years 2014 and 2013 and the related statement of operations and retained earnings for the twelve (12) months ended December 31 for each of the years 2014 and 2013. The Company has also delivered as to Buyer the monthly unaudited balance sheets for the five (5) months ended May 31form, 2015 and the related monthly statement of operations and retained earnings. All the financial statements referenced above are herein referred to as the “Financial Statements” and are attached to Section 2.8 of the Company Disclosure Schedule. The Financial Statements (x) fairly present in all material respects with all applicable accounting requirements and with the financial position published rules and results of operations regulations of the Company SEC with respect thereto as of in effect on the dates of filing and for the periods indicatedeffectiveness thereof, (ii) were prepared in accordance with GAAP as in effect on the applicable Historical Accounting Principlesdates of such financial statements, applied on a consistent basis during such throughout the periods involved (except for changes in accounting principles disclosed in the notes thereto and, in the case of unaudited statements, as permitted by the rules and (y) regulations of the Financial Statements have been prepared fromSEC, including being subject to normal year-end adjustments which were not, and are not expected to be, material in accordance withamount) and (iii) fairly present, in all material respects, the books and records consolidated financial position of the Company. The Company is and its consolidated Subsidiaries as of the dates thereof and the consolidated results of their operations and cash flows for the periods therein indicated (subject, in the case of unaudited statements, to normal year-end adjustments which were not, and are not party expected to any off-balance sheet Contract or other “off balance sheet arrangements” (as defined be, material in Item 303(a) of Regulation S-K under the Securities Exchange Act of 1934, as amendedamount), where the intended effect of such Contract is to avoid disclosure of any material transaction involving, or material Liabilities of, the Company.
(b) The Except (i) as set forth, reflected or reserved against in the consolidated balance sheet (including the notes thereto) of the Company included in the Company 2004 Form 10-K or (ii) for liabilities and obligations incurred since January 29, 2005 in the ordinary course of business consistent with past practice or not otherwise prohibited by this Agreement, neither the Company nor any of its Subsidiaries has no Liabilities any liabilities or obligations that are of any a nature whatsoever (whether accrued, absolute, determined, contingent or otherwise and whether due or otherwise) that would be required to become due), except (i) Liabilities be reflected or reserved against in the on a consolidated balance sheet of the Company as of December 31, 2014 included and its Subsidiaries prepared in accordance with GAAP or in the Financial Statementsnotes thereto, (ii) Liabilities incurred after December 31except for such liabilities and obligations which would not, 2014 individually or in the Ordinary Course of Businessaggregate, (iii) Liabilities incurred in connection with this Agreement including amounts to be included in Company Transaction Expenses for employee bonuses to be paid by the Company, (iv) Liabilities arising out of the Promissory Note and (v) Liabilities that have not been and would not reasonably be expected to be, material to the Companyhave a Company Material Adverse Effect.
Appears in 2 contracts
Sources: Merger Agreement (Shopko Stores Inc), Merger Agreement (Shopko Stores Inc)
Financial Statements; No Undisclosed Liabilities. (ai) The Except as set forth on Schedule 4(j)(i), the Company (i) has delivered implemented and maintains disclosure controls and procedures (as defined in Rule 13a-15(e) under the Exchange Act) that are reasonably designed to Buyer ensure that material information relating to the Company and its consolidated Subsidiaries is made known to the individuals responsible for the preparation of the Company’s filings with the Commission and (ii) has disclosed, based on its most recent evaluation prior to the date of this Agreement, to the Company’s outside auditors and the Board’s audit committee (A) any significant deficiencies and material weaknesses in the design or operation of internal controls over financial reporting (as defined in Rule 13a-15(f) under the Exchange Act) that are reasonably likely to adversely affect the Company’s ability to record, process, summarize and report financial information and (B) any fraud, whether or not material, that involves management or other employees who have a significant role in the Company’s internal controls over financial reporting. There is no transaction, arrangement or other relationship between the Company and/or any of its Subsidiaries and an unaudited unconsolidated or other off-balance sheet entity that is required to be disclosed by the Company in the Company SEC Documents and is not so disclosed. The financial statements and related notes of the Company as of December 31, for each of and its consolidated Subsidiaries included or incorporated by reference in the years 2014 and 2013 and the related statement of operations and retained earnings for the twelve Company SEC Documents (12) months ended December 31 for each of the years 2014 and 2013. The Company has also delivered to Buyer the monthly unaudited balance sheets for the five (5) months ended May 31, 2015 and the related monthly statement of operations and retained earnings. All the financial statements referenced above are herein referred to as the “Financial Statements” ”), and are attached to Section 2.8 of be included or incorporated by reference in the Company Disclosure Schedule. The Financial Statements Registration Statement and the Prospectus (xas defined below) fairly present or will fairly present, as the case may be, in all material respects, the Company’s consolidated financial condition, results of operations, and cash flows for the dates or periods indicated thereon. Such financial statements have been or will be, as the case may be, prepared in accordance with U.S. generally accepted accounting principles (“GAAP”) applied in all material respects the financial position and results of operations of the Company as of the dates and for the periods indicated, in accordance with the applicable Historical Accounting Principles, applied on a consistent basis during such throughout the periods indicated.
(ii) Except as set forth on Schedule 4(j)(ii) and except for (i) those liabilities that are reflected or reserved for in the Financial Statements, (ii) liabilities incurred since December 31, 2016 in the ordinary course of business consistent with past practice (it being agreed that a violation of law in any material respect or a material litigation or other adverse proceeding shall not be deemed ordinary course), (iii) liabilities incurred pursuant to the transactions contemplated by this Agreement, and (iv) (x) liabilities that would be required to be included on a balance sheet prepared in accordance with GAAP that would not, individually or in the aggregate, be materially adverse to the Company and/or any of its Subsidiaries, taken as a whole, and (y) other liabilities that would not, individually or in the Financial Statements aggregate, have been prepared from, and are in accordance witha Material Adverse Effect, the books and records of the Company. The Company is does not party to have any off-balance sheet Contract liabilities or other “off balance sheet arrangements” (as defined in Item 303(a) of Regulation S-K under the Securities Exchange Act of 1934, as amended), where the intended effect of such Contract is to avoid disclosure of any material transaction involving, or material Liabilities of, the Company.
(b) The Company has no Liabilities obligations of any nature whatsoever (whether accrued, absolute, determinedcontingent, contingent or otherwise and whether due or to become dueotherwise), except (i) Liabilities reflected or reserved against in the balance sheet of the Company as of December 31, 2014 included in the Financial Statements, (ii) Liabilities incurred after December 31, 2014 in the Ordinary Course of Business, (iii) Liabilities incurred in connection with this Agreement including amounts to be included in Company Transaction Expenses for employee bonuses to be paid by the Company, (iv) Liabilities arising out of the Promissory Note and (v) Liabilities that have not been and would not reasonably be expected to be, material to the Company.
Appears in 2 contracts
Sources: Standby Purchase Agreement, Standby Purchase Agreement (Roadrunner Transportation Systems, Inc.)
Financial Statements; No Undisclosed Liabilities. (a) The Company has delivered to Buyer an unaudited balance sheet Section 5.7(a) of the Company as of December 31Disclosure Letter sets forth true, for each accurate and complete copies of the years 2014 and 2013 and the related statement of operations and retained earnings for the twelve (12) months ended December 31 for each of the years 2014 and 2013. The Company has also delivered to Buyer the monthly unaudited balance sheets for the five (5) months ended May 31, 2015 and the related monthly statement of operations and retained earnings. All the financial statements referenced above are herein referred to as the “Financial Statements” and are attached to Section 2.8 of the Company Disclosure Schedule. The Financial Statements (x) fairly present present, in all material respects respects, the consolidated financial position and the consolidated results of operations of the Company Titan Holdings II B.V. and its Subsidiaries as of the their respective dates and for the periods indicated, indicated in such Financial Statements and (y) have been prepared in accordance with the applicable Historical Accounting Principles, IFRS applied on a consistent basis during in all material respects throughout the periods covered thereby, with only such periods and (y) deviations from such accounting principles or their consistent application as are referred to in the notes to the Financial Statements have been prepared fromand subject, and are in accordance with, the books and records case of the Company. The Company is not party Unaudited Financial Statements, to any off(i) normal year-balance sheet Contract or other “off balance sheet arrangements” end audit adjustments and (as defined in Item 303(aii) the absence of Regulation S-K under the Securities Exchange Act of 1934, as amended), where the intended effect of such Contract is to avoid disclosure of any material transaction involving, or material Liabilities of, the Companyrelated notes.
(b) The Company has no Liabilities of any nature whatsoever (whether accrued, absolute, determined, contingent or otherwise and whether due or to become due), except Except (i) Liabilities as set forth in Section 5.7(b) of the Disclosure Letter or as adequately reflected or reserved against in the Financial Statements (including the footnotes thereto), (ii) for liabilities incurred in the ordinary course of business of the Company Group since the date of the Interim Balance Sheet (none of which results from breach of Contract, breach of warranty, violation of Law or any Order, tort, infringement or misappropriation), (iii) for liabilities or obligations arising under this Agreement or the performance by the Company and its Subsidiaries of their respective obligations hereunder, and (iv) as would not, individually or in the aggregate, reasonably be expected to be materially adverse to the Company Group, taken as a whole, no member of the Company Group has any liabilities or obligations (whether known or unknown, asserted or unasserted, accrued or unaccrued, absolute or contingent) of a type that are required by IFRS to be reflected or reserved against in a balance sheet of the Company Titan Holdings II B.V. and its Subsidiaries.
(c) Except as of December 31, 2014 included set forth in the Financial Statements, as of the date hereof, no member of the Company Group maintains any material undisclosed “off-balance sheet arrangement” within the meaning of Item 303 of Regulation S-K of the SEC.
(d) Each member of the Company Group maintains a system of accounting established and administered in accordance with IFRS and internal controls over financial reporting designed to provide reasonable assurance regarding the reliability of such entity’s financial reporting and the preparation of financial statements in accordance with IFRS and to provide reasonable assurance that: (i) records are maintained in reasonable detail that accurately and fairly reflect in all material respects the transactions and dispositions of the assets of the Company Group; (ii) Liabilities incurred after December 31transactions are recorded on a timely basis, 2014 as necessary to permit preparation of financial statements in accordance with IFRS, and that material transactions are being made only in accordance with authorizations of management and/or the Ordinary Course board of Business, directors (or equivalent authority) of the Company Group; and (iii) Liabilities incurred unauthorized acquisition, use or disposition of the Company Group’s assets that could have a material effect on such entity’s financial statements are timely detected and/or prevented. There are no significant deficiencies or material weaknesses in connection with the design or operation of such system of internal control over financial reporting that are likely to adversely affect in any material respect the ability of the Company Group to record, process, summarize and report financial information. Since September 1, 2021, there have been no instances of fraud that involve the Company Group’s management or other employees who have a significant role in such entity’s system of internal control over financial reporting.
(e) The Company (i) was formed for the purpose of being a holding company to the Company Group, (ii) has no assets, liabilities or obligations of any nature other than (A) for cash and cash equivalents and Tax assets and liabilities, (B) the Purchased Interests, (C) those incident to its formation and to holding the Purchased Interests, (D) those arising pursuant to its Organizational Documents, (E) those arising pursuant to this Agreement including amounts and the Ancillary Agreements or the transactions contemplated hereby or thereby or (F) those that are, individually and in the aggregate, de minimis in nature, and (iii) (x) does not engage, and prior to be included the Closing, will not have engaged in, any business activities other than those incidental to its direct or indirect ownership interests in Company Transaction Expenses for employee bonuses to be paid by the Company, (iv) Liabilities arising out any member of the Promissory Note Company Group (other than activities that are de minimis in nature), including pursuant to this Agreement, and (vy) Liabilities that have does not been have, and would not reasonably be expected to be, material prior to the CompanyClosing, will not have had any employees.
(f) The calculation of the Estimated Purchase Price will not include any cash or cash equivalents of any Affiliate of the Seller that is not a member of the Company Group.
(g) The Company (i) is, and will be at all times until immediately prior to the Closing, a Foreign Business or (ii) qualifies, and will at all times until immediately prior to the Closing will qualify, as a Foreign Private Issuer if it were a registrant with the SEC.
Appears in 2 contracts
Sources: Equity Purchase Agreement (Sonoco Products Co), Equity Purchase Agreement (Sonoco Products Co)
Financial Statements; No Undisclosed Liabilities. (a) The Company Seller has delivered made available to Buyer an unaudited balance sheet Purchaser (i) a copy of the Company Company’s audited consolidated balance sheets as of December January 31, for each of the years 2014 2004 and 2013 2003 and the related statement consolidated statements of operations income, cash flows and retained earnings stockholder’s equity and comprehensive income for the twelve (12) months three fiscal years ended December 31 for each January 31, 2004, accompanied by the report of the years 2014 Company’s independent public accountants thereon and 2013. The Company has also delivered to Buyer (ii) a copy of the monthly Company’s unaudited consolidated balance sheets for the five (5) months ended May sheet as of July 31, 2015 2004 and the related monthly statement consolidated statements of operations income and retained earnings. All cash flows for the financial statements referenced above are herein referred to as six-month period then ended (collectively, the “Financial Statements” and are attached to Section 2.8 of the Company Disclosure Schedule”). The Financial Statements have been prepared in accordance with United States generally accepted accounting principles (x“GAAP”) (subject, in the case of unaudited financial statements, to normal, recurring year-end adjustments and the absence of notes thereto) applied on a consistent basis throughout the periods indicated. The Financial Statements present fairly present in all material respects the financial position condition and operating results of the Company and its Subsidiaries as of the dates, and for the periods, indicated therein, subject to normal year-end audit adjustments. The Company maintains a standard system of accounting established and administered in accordance with GAAP. The Company’s unaudited balance sheet as of July 31, 2004 is referred to in this Agreement as the “Company Balance Sheet.”
(b) All accounts and notes receivable of the Company and the Subsidiaries reflected in the Company Balance Sheet have arisen in the ordinary course of business from bona fide transactions, represent valid obligations due to the operations of the Company as of or the dates and for the periods indicated, Subsidiaries in accordance with the applicable Historical Accounting Principles, applied on a consistent basis during such periods their terms and (y) the Financial Statements have been prepared from, and are properly accounted for in accordance with, with GAAP (subject to normal year-end adjustments and the books and records absence of the Company. The Company is not party to any off-balance sheet Contract or other “off balance sheet arrangements” (as defined in Item 303(a) of Regulation S-K under the Securities Exchange Act of 1934, as amendednotes thereto), where the intended effect of such Contract is to avoid disclosure of any material transaction involving, or material Liabilities of, the Company.
(bc) The Neither the Company nor any Subsidiary has no Liabilities any liability or any obligations of any nature whatsoever (nature, whether or not accrued, absolute, determined, contingent or otherwise otherwise, and whether due or to become due)due or asserted or unasserted, except for (ia) Liabilities reflected or reserved against in liabilities shown on the balance sheet Company Balance Sheet, (b) liabilities and obligations incurred prior to the date of the Company as of December 31, 2014 included Balance Sheet in the Financial Statementsordinary course of business which will not be required by GAAP to be reflected in, (ii) Liabilities incurred after December 31, 2014 reserved against or otherwise described in the Ordinary Course of BusinessCompany Balance Sheet and that would not, individually or in the aggregate, have a Material Adverse Effect and (iiic) Liabilities liabilities and obligations incurred in connection with this Agreement including amounts to be included in Company Transaction Expenses for employee bonuses to be paid by since the Company, (iv) Liabilities arising out date of the Promissory Note Company Balance Sheet in the ordinary course of business and (v) Liabilities that which have not been and would not reasonably be expected to behave, material to individually or in the aggregate, a Material Adverse Effect on the Company.
Appears in 2 contracts
Sources: Stock Purchase Agreement (Science Applications International Corp), Stock Purchase Agreement (Science Applications International Corp)
Financial Statements; No Undisclosed Liabilities. (a) The Company has delivered to Buyer an unaudited balance sheet Section 3.05(a) of the Company as of December 31, for each Seller Disclosure Letter sets forth true and correct copies of the years 2014 and 2013 and the related statement of operations and retained earnings for the twelve (12) months ended December 31 for each of the years 2014 and 2013. The Company has also delivered to Buyer the monthly unaudited balance sheets for the five (5) months ended May 31, 2015 and the related monthly statement of operations and retained earnings. All the financial statements referenced above are herein referred to as the “Financial Statements” and are attached to Section 2.8 of the Company Disclosure Schedule. The Financial Statements (x) have been prepared in all material respects in accordance with GAAP and on that basis fairly present in all material respects the financial position and results of operations of the Company Business as of the dates and for the periods indicatedindicated therein, except as may be indicated in accordance with the applicable Historical Accounting Principles, applied on a consistent basis during such periods and (y) the Financial Statements have been prepared from, and are in accordance with, the books and records of the Company. The Company is not party to any off-balance sheet Contract or other “off balance sheet arrangements” (as defined in Item 303(a) of Regulation S-K under the Securities Exchange Act of 1934, as amended), where the intended effect of such Contract is to avoid disclosure of any material transaction involving, or material Liabilities of, the Companynotes thereto.
(b) The Neither the Transferred Company has no Liabilities nor the Business is subject to any liabilities or obligations of any nature whatsoever (nature, whether accrued, absolute, determined, contingent determinable, fixed or otherwise and contingent, whether due or not of a type that would be required to become due)be reflected on a balance sheet prepared in accordance with the Accounting Principles as of the date hereof, except for those liabilities and obligations (i) Liabilities disclosed, reflected or reserved against or provided for in the balance sheet of the Company as of December 31, 2014 included in the Financial StatementsBalance Sheet, (ii) Liabilities incurred after December 31, 2014 in the Ordinary Course ordinary course of Businessbusiness since the date of the Balance Sheet, (iii) Liabilities incurred in connection with as contemplated by this Agreement including amounts to be included in Company Transaction Expenses for employee bonuses to be paid by the Company, or (iv) Liabilities arising out of that, individually or in the Promissory Note and (v) Liabilities that have not been and aggregate, would not reasonably be expected to beresult in a material adverse effect on the Business, material taken as a whole.
(c) The books of account and other corporate and financial records of the Transferred Company and the Selling Entities, to the Companyextent related to the Business, have been maintained in accordance with sound business practices and comply in all material respects with any applicable Laws. The Transferred Company and the Selling Entities in respect of the Business have implemented and maintained systems of internal controls over financial reporting designed to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements (including the Financial Statements) in accordance with the Accounting Principles.
Appears in 1 contract
Sources: Equity and Asset Purchase Agreement (Martin Marietta Materials Inc)
Financial Statements; No Undisclosed Liabilities. (a) The Company has delivered to Buyer an unaudited Set forth on Schedule 3.7(a) are: (i) the combined audited balance sheet sheets of the Company Companies and JTS Realty Investment Company, LLC as of December 31, 2021 and 2022; (ii) the related combined audited statements of operations for each the years ended December 31, 2021 and 2022; (iii) an unaudited balance sheets of the years 2014 DAS as of June 30, 2023 (the “Interim Balance Sheet”); and 2013 and (iv) the related statement unaudited statements of operations profit and retained earnings loss for the twelve six (126) months ended December 31 for each of June 30, 2023 (the years 2014 and 2013. The Company has also delivered to Buyer the monthly unaudited balance sheets for the five (5) months ended May 31foregoing financial statements, 2015 and the related monthly statement of operations and retained earnings. All the financial statements referenced above are herein referred to as collectively, the “Financial Statements” and are attached to Section 2.8 of the Company Disclosure Schedule”). The Financial Statements (xi) fairly present have been prepared from the books and records of each Company in accordance with GAAP, consistently applied, (ii) are correct in all material respects respects, and (iii) present fairly, in all material respects, changes in shareholders equity, the financial position condition and results of operations of the Company Companies as of the respective dates thereof and for the respective periods indicatedcovered thereby, subject, in accordance with the applicable Historical Accounting Principlescase of the unaudited Financial Statements, applied on a consistent basis during such periods to normal recurring year-end adjustments (the effect of which will not, individually or in the aggregate, be material) and (y) the Financial Statements have been prepared from, and are in accordance with, the absence of footnotes. The books and records of each Company are correct, have been maintained in accordance with sound business practices, and accurately reflect in all material respects all the Companytransactions and actions therein described. The Company is not party to any off-balance sheet Contract or other “off balance sheet arrangements” (as defined At the Closing, all such books and records will be in Item 303(a) the possession of Regulation S-K under the Securities Exchange Act of 1934, as amended), where the intended effect of such Contract is to avoid disclosure of any material transaction involving, or material Liabilities of, the applicable Company.
(b) The Company has no Liabilities None of the Companies have any nature whatsoever (whether accruedLiabilities, absolute, determined, contingent or otherwise and whether due or to become due), except except: (i) Liabilities reflected on, or reserved against in the balance sheet of the Company as of December 31in, 2014 included in the Financial Statements, ; (ii) Liabilities incurred after December 31, 2014 that have arisen since the date of the Interim Balance Sheet in the Ordinary Course of Business, none of which is a Liability resulting from or arising out of any breach of contract, breach of warranty, tort, infringement, misappropriation, or violation of Law; and (iii) Liabilities incurred set forth on Schedule 3.7(b).
(c) Each Company maintains internal accounting controls sufficient to provide reasonable assurances that (i) transactions are executed in connection accordance with this Agreement including amounts management’s general or specific authorizations, (ii) transactions are recorded as necessary to be included permit preparation of financial statements in Company Transaction Expenses conformity with GAAP and to maintain accountability for employee bonuses assets, (iii) access to be paid by the Companyassets is permitted only in accordance with management’s general or specific authorization, and (iv) Liabilities arising out the recorded accountability for assets is compared with the existing assets at reasonable intervals and appropriate action is taken with respect to any differences. There has never been (x) any significant deficiency or material weakness in any system of internal accounting controls used by any of the Promissory Note Companies, (y) any fraud or other wrongdoing that involves any of the management or other employees of any of the Companies who have a role in the preparation of financial statements or the internal accounting controls used by any of the Companies, or (z) any claim or allegation regarding any of the foregoing.
(d) Schedule 3.7(d)(i) sets forth a correct list of all Company Indebtedness of each Company and (videntifies for each item of Company Indebtedness the outstanding amount thereof as of the date of this Agreement. Schedule 3.7(d)(ii) Liabilities that have not been sets forth a correct list of all Equipment and would not reasonably be expected to be, material to Truck Indebtedness of each Company and identifies for each item of Equipment and Truck Indebtedness the Companyoutstanding amount thereof as of the date of this Agreement.
Appears in 1 contract
Sources: Contribution Agreement (Proficient Auto Logistics, Inc)
Financial Statements; No Undisclosed Liabilities. and Absence of Changes.
(a) The Company has delivered unaudited balance sheet of JMCD as at immediately prior to Buyer an its consummation of the acquisition of the Company, but giving effect to its closing costs anticipated to be incurred in connection therewith, and the unaudited balance sheet of the Company as of December dated October 31, for each 1997 (collectively the "Financial Statements"), present fairly the financial position, and retained earning of the years 2014 and 2013 JMCD and the related statement of operations and retained earnings for the twelve Company, respectively, as at such dates.
(12b) months ended December 31 for each of the years 2014 and 2013. The Company has also delivered to Buyer the monthly unaudited balance sheets for the five (5) months ended May 31, 2015 and the related monthly statement of operations and retained earnings. All the financial statements referenced above are herein referred to Except as the “Financial Statements” and are attached to Section 2.8 of the Company Disclosure Schedule. The Financial Statements (x) fairly present in all material respects the financial position and results of operations of the Company as of the dates and for the periods indicated, in accordance with the applicable Historical Accounting Principles, applied set forth on a consistent basis during such periods and (y) the Financial Statements and JMCD's obligation to reimburse Shareholders as set forth in Section 4.11, (A) JMCD did not have been prepared fromany claims, liabilities or obligations of any nature, known or unknown, fixed or contingent, matured or unmatured, liquidated or unliquidated, which were not shown or otherwise provided for in the Financial Statements, except for liabilities incurred by the Company in its ordinary course of business since October 31, 1997 and (B) to the best knowledge of JMCD and the Shareholders, reserves (if any) established by JMCD and set forth in the Financial Statements are adequate, appropriate and reasonable and there are no loss contingencies (as such term is used in accordance withStatement of Financial Accounting Standard No. 5, of the Financial Accounting Standards Board) which are not adequately provided for in the Financial Statements. JMCD has not conducted any business operations except in connection with the acquisition of the Company.
(c) To the best knowledge of JMCD and the Shareholders, the books and records of the Company have, in all material respects, been maintained in accordance with good business practice, and except for JMCD's acquisition of the Company. The , since October 31, 1997, there has been no:
(i) Material and adverse change in the business, properties, assets or liabilities, operations, condition (financial or otherwise) or prospects of the Company, nor has any event occurred or been threatened, which may reasonably be expected to have a material and adverse effect on the assets or the business of the Company is not party to any off-balance sheet Contract acquired by JMCD;
(ii) Sale, transfer or other “off balance sheet arrangements” disposition of any assets owned or used by the Company in the operation of the business (as defined in Item 303(a) of Regulation S-K under the Securities Exchange Act of 1934, as amendedwhether or not capitalized or expensed for tax or financial statement purposes), where except of inventory in the intended effect ordinary course of such Contract is to avoid disclosure business;
(iii) Waiver of any right of material transaction involving, value or material Liabilities of, the Company.any cancellation of any indebtedness due to JMCD which may have an adverse effect on its assets or business;
(biv) The Company has no Liabilities of any nature whatsoever Claim, obligation or liability (whether accrued, absolute, determinedaccrued, contingent or otherwise and whether due or to become due), except (imatured or unmatured, liquidated or unliquidated) Liabilities reflected incurred by the Company other than claims, obligations or reserved against liabilities incurred in the balance sheet ordinary course of business and consistent with past practice;
(v) Material default by the Company on any claim, liability or obligation;
(vi) Write-down of the value of any inventory of the Company, or write-off as uncollectible of any notes or Accounts Receivable, or any portion thereof of the Company in excess of the amount reserved therefor on the Company's books and records;
(vii) Prepayments, advances or other deposits, made by customers of the business with respect to products or services contracted for but not provided as of December the Closing Date or any other unearned income;
(viii) Damage, destruction or loss of physical property (whether or not covered by insurance) which may have a material and adverse effect on the Company's assets or business;
(ix) Increase in the compensation of any of the Company's officers or employees, or loans made by the Company to any of JMCD's shareholders, directors, officers or employees;
(x) Transaction not in the ordinary course of business; or
(xi) Agreement or commitment, whether or not in writing, to do any of the aforementioned.
(c) To the best knowledge of JMCD and the Shareholders, all waivers or consents with respect to assets reflected on the Company's balance sheet as at October 31, 2014 included in the Financial Statements, (ii) Liabilities incurred after December 31, 2014 in the Ordinary Course of Business, (iii) Liabilities incurred in connection with this Agreement including amounts to be included in Company Transaction Expenses for employee bonuses to be paid 1997 were obtained by the CompanyCompany prior to its sale of its assets to JMCD.
(d) Except as otherwise disclosed by JMCD to Brake in writing, (iv) Liabilities arising out there are no outstanding loans or other amounts owed by JMCD to any officer, director, Stockholder or affiliate of the Promissory Note and (v) Liabilities that have not been and would not reasonably be expected JMCD, nor are there any loans by any such person to be, material to the CompanyJMCD.
Appears in 1 contract
Financial Statements; No Undisclosed Liabilities. (a) The Company has delivered to Buyer an unaudited Set forth in Section 4.5 of the Sellers Disclosure Schedule are (a) the audited consolidated balance sheet of the Company Business as of December 31, for each 2013 (the “Balance Sheet Date”) and as of the years 2014 and 2013 December 31, 2012, and the related statement statements of operations income and retained earnings cash flows for the twelve (12) months fiscal years ended on December 31 for each of the years 2014 and 2013. The Company has also delivered to Buyer the monthly unaudited balance sheets for the five (5) months ended May 31, 2015 2013 and December 31, 2012 and (b) the unaudited consolidated balance sheet as of September 30, 2014 (the “Interim Balance Sheet Date”) and the related monthly statement statements of operations income and retained earnings. All cash flows for the financial statements referenced above are herein referred to as 9-month fiscal period ended on such date (collectively, the “Financial Statements” and are attached to Section 2.8 of the Company Disclosure Schedule”). The Financial Statements (x) have been prepared from the Books and Records and fairly present in all material respects the financial position of the Business as of the indicated dates and the results of operations and cash flows of the Company as of the dates and Business for the specified periods indicated, in accordance with GAAP subject to, in the applicable Historical Accounting Principles, applied on a consistent basis during such periods and (y) the case of Financial Statements have been prepared from, and are referred to in accordance with, the books and records of the Company. The Company is not party to any off-balance sheet Contract or other “off balance sheet arrangements” immediately preceding clause (as defined in Item 303(a) of Regulation S-K under the Securities Exchange Act of 1934, as amendedb), where normal period-end audit adjustments and the intended effect absence of such Contract is to avoid disclosure of any material transaction involving, or material Liabilities of, the Companynotes.
(b) The Company has no Business does not have any Liabilities of any nature whatsoever that are required to be set forth on the face of an audited consolidated balance sheet (whether accrued, absolute, determined, contingent or otherwise and whether due or to become due)excluding any note disclosure) prepared in accordance with GAAP, except for Liabilities (i) Liabilities reflected or reserved against in the balance sheet of the Company as of December 31, 2014 included in on the Financial Statements, (ii) Liabilities incurred after December 31, 2014 in the Ordinary Course ordinary course of Businessbusiness since the Interim Balance Sheet Date or which would be included in Estimated Working Capital, (iii) Liabilities incurred in connection with this Agreement including amounts to be included in Company Transaction Expenses for employee bonuses to be paid by the Company, (iv) Liabilities arising out of the Promissory Note and (v) Liabilities that have not been and would not reasonably be expected to be, individually or in the aggregate, material to the CompanyBusiness or (iv) incurred in connection with the transactions contemplated hereby.
Appears in 1 contract
Sources: Asset Purchase Agreement (New Media Investment Group Inc.)
Financial Statements; No Undisclosed Liabilities. (a) The Company has delivered to Buyer an Acquirer its unaudited financial statements for the last three fiscal years and its unaudited financial statements for the nine-month period ended September 30, 2021 (including, in each case, balance sheet of the Company as of December 31sheets, for each of the years 2014 and 2013 and the related statement statements of operations and retained earnings for the twelve statements of cash flows) (12) months ended December 31 for each of the years 2014 and 2013. The Company has also delivered to Buyer the monthly unaudited balance sheets for the five (5) months ended May 31collectively, 2015 and the related monthly statement of operations and retained earnings. All the financial statements referenced above are herein referred to as the “Financial Statements” and ”), which are attached to Section 2.8 included as Schedule 2.4(a) of the Company Disclosure ScheduleLetter. The Financial Statements (xi) fairly present in all material respects the financial position are derived from and results of operations of the Company as of the dates and for the periods indicated, in accordance with the applicable Historical Accounting Principles, applied on a consistent basis during such periods and (y) the Financial Statements have been prepared from, and are in accordance with, the books and records of the Company. The , (ii) fairly and accurately present in all material respects the consolidated financial condition of the Company is not party at the dates therein indicated and the consolidated results of operations and cash flows of the Company for the periods therein specified (subject, in the case of unaudited interim period financial statements, to any offnormal recurring year-balance sheet Contract end adjustments, none of which individually or other “off balance sheet arrangements” (as defined in Item 303(a) of Regulation S-K under the Securities Exchange Act of 1934, as amendedaggregate are or will be material in amount), where (iii) are true, correct and complete in all material respects and (iv) were prepared in accordance with US GAAP, except for the intended effect absence of such Contract is to avoid disclosure of any material transaction involvingfootnotes in the unaudited Financial Statements, or material Liabilities of, applied on a consistent basis throughout the Companyperiods involved.
(b) The Except as reflected in the Company Balance Sheet, the Company has no Liabilities of any nature whatsoever (whether accruedthat would be required to be reflected on a balance sheet prepared in accordance with US GAAP other than Liabilities incurred in the ordinary course of business since that date of the Company Balance Sheet. Except for Liabilities reflected in the Company Balance Sheet, absolutethe Company has no off-balance sheet Liability of any nature to, determinedor any financial interest in, contingent any third parties or entities, the purpose or effect of which is to defer, postpone, reduce or otherwise avoid or adjust the recording of expenses incurred by the Company. All reserves that are set forth in or reflected in the Company Balance Sheet have been established in accordance with US GAAP consistently applied. Without limiting the generality of the foregoing, the Company has never guaranteed any debt or other obligation of any other Person.
(c) Schedule 2.4(c) of the Company Disclosure Letter sets forth a true, correct and whether due complete list of all Company Debt. Except as set forth on Schedule 2.4(c) of the Company Disclosure Letter, the Company has not received loans under the CARES Act or any other Applicable Law, regulation, order or directive issued by any Governmental Entity or public health agency in connection with the COVID-19 pandemic.
(d) The accounts receivable of the Company (collectively, the “Accounts Receivable”) as reflected on the Company Balance Sheet arose in the ordinary course of business and consistent with past practice and represent bona fide claims against debtors for sales and other charges, and have been collected or are collectible in the book amounts thereof within 60 days following the Agreement Date, less an amount not in excess of the allowance for doubtful accounts provided for in the Company Balance Sheet, as the case may be. Allowances for doubtful accounts and warranty returns have been prepared in accordance with US GAAP consistently applied and in accordance with the Company’s past practice and are reasonably expected to become due), except be sufficient to provide for any losses that may be sustained on realization of the applicable Accounts Receivable. The Accounts Receivable arising after the Company Balance Sheet Date and before the Closing Date (i) Liabilities reflected arose or reserved against shall arise in the balance sheet ordinary course of business and consistent with past practice, (ii) represented or shall represent bona fide claims against debtors for sales and other charges and (iii) have been collected or are collectible in the book amounts thereof within 60 days following the Agreement Date, less allowances for doubtful accounts and warranty returns determined in accordance with US GAAP consistently applied and the Company’s past practice that are reasonably expected to be sufficient to provide for any losses that may be sustained on realization of the applicable Accounts Receivable. To the knowledge of the Company, none of the Accounts Receivable is subject to any claim of offset, recoupment, set-off or counter-claim and there are no facts or circumstances (whether asserted or unasserted) that could give rise to any such claim. No material amount of Accounts Receivable is contingent upon the performance by the Company of any obligation or Contract other than normal warranty repair and replacement. No Person has any Encumbrance, except a Permitted Encumbrance, on any Accounts Receivable, and no agreement for deduction or discount has been made with respect to any such Accounts Receivable. Schedule 2.4(d) of the Company Disclosure Letter sets forth, as of December 31the Agreement Date, 2014 included an aging of the Accounts Receivable in the aggregate and by customer, and indicates the amounts of allowances for doubtful accounts and warranty returns. Schedule 2.4(d) of the Company Disclosure Letter sets forth, as of the Agreement Date, such amounts of Accounts Receivable that are subject to asserted warranty claims by customers and reasonably detailed information regarding asserted warranty claims made within the last year, including the type and amounts of such claims.
(e) The Company has established and maintains a system of internal accounting controls sufficient to provide reasonable assurances (i) that transactions, receipts and expenditures of the Company are being executed and made only in accordance with appropriate authorizations of management and the Board, (ii) that transactions are recorded as necessary (A) to permit preparation of financial statements in conformity with US GAAP and (B) to maintain accountability for assets, (iii) regarding the prevention or timely detection of unauthorized acquisition, use or disposition of the assets of Company and (iv) that the amount recorded for assets on the books and records of the Company is compared with the existing assets at reasonable intervals and appropriate action is taken with respect to any differences. None of the Company or, to the knowledge of the Company, any current or former employee, consultant or director of the Company, has identified, been made aware of, or received notice of any fraud, whether or not material, that involves the Company’s management or other current or former employees, consultants or directors of the Company who have a role in the preparation of financial statements or the internal accounting controls utilized by the Company, or any claim or allegation regarding any of the foregoing. Neither the Company nor, to the knowledge of the Company, any Representative of the Company has received or otherwise had or obtained knowledge of any material complaint, allegation, assertion or claim, whether written or oral, in each case, regarding deficient accounting or auditing practices, procedures, methodologies or methods of the Company or its internal accounting controls or any material inaccuracy in the financial statements of the Company. No attorney representing the Company, whether or not employed by the Company, has reported to the Board or any committee thereof or to any director or officer of the Company evidence of a material violation of securities laws, breach of fiduciary duty or similar violation by the Company or its Representatives. There are no significant deficiencies or material weaknesses in the design or operation of the Company’s internal controls that could adversely affect the Company’s ability to record, process, summarize and report financial data in the same manner in which the Company’s financial data is summarized and reported prior to the date hereof. At the Company Balance Sheet Date, there were no material loss contingencies (as such term is used in Financial Accounting Standards Board Accounting Standards Codification Topic 450) that are not adequately provided for in the Company Balance Sheet and/or disclosed in the financial statement footnotes thereto as required by such Topic 450. There has been no change in the Company’s accounting policies since January 1, 2019, except as described in the Financial Statements, (ii) Liabilities incurred after December 31, 2014 in the Ordinary Course of Business, (iii) Liabilities incurred in connection with this Agreement including amounts to be included in Company Transaction Expenses for employee bonuses to be paid by the Company, (iv) Liabilities arising out of the Promissory Note and (v) Liabilities that have not been and would not reasonably be expected to be, material to the Company.
Appears in 1 contract
Sources: Agreement and Plan of Merger and Reorganization (Vaccitech PLC)
Financial Statements; No Undisclosed Liabilities. (a) The Company Seller has delivered to Buyer Buyer: (i) unaudited balance sheets of the Company as at December 31, 2010, 2011 and 2012 and the related unaudited statements of income, including the notes thereto; and (ii) an unaudited balance sheet of the Company as of December 31the nine months ended September 30, for each of the years 2014 and 2013 2013, and the related statement unaudited statements of operations and retained earnings for the twelve (12) months ended December 31 for each income. Each of the years 2014 and 2013. The Company has also delivered to Buyer the monthly unaudited balance sheets for the five (5) months ended May 31, 2015 and the related monthly statement of operations and retained earnings. All the financial statements referenced above are herein referred delivered pursuant to as this Section 3.10 were prepared in good faith and, to the “Financial Statements” and are attached to Section 2.8 Knowledge of the Company Disclosure Schedule. The Financial Statements (x) fairly present Seller, present, in all material respects respects, the financial position and results of operations condition of the Company as of the dates and for the periods indicated, in accordance with the applicable Historical Accounting Principles, applied on a consistent basis during such periods and (y) the Financial Statements have been prepared from, and are in accordance with, the books and records of the Company. The Company is not party to any off-balance sheet Contract or other “off balance sheet arrangements” (as defined in Item 303(a) of Regulation S-K under the Securities Exchange Act of 1934, as amended), where the intended effect of such Contract is to avoid disclosure of any material transaction involving, or material Liabilities of, the Companydate thereof.
(b) The Company has no Liabilities of any nature whatsoever (liabilities, whether accrued, absolute, determinedfixed or contingent, contingent or otherwise and whether due or to become due), except other than (i) Liabilities reflected or reserved against liabilities specifically identified in the balance sheet Section 3.10 of the Company as of December 31, 2014 included in the Financial StatementsDisclosure Schedule, (ii) Liabilities liabilities incurred after December 31, 2014 in the Ordinary Course of Businessunder this Agreement, (iii) Liabilities liabilities incurred in connection with this Agreement including amounts to be included in Company Transaction Expenses for employee bonuses to be paid by the Companyordinary course of business, (iv) Liabilities arising out of the Promissory Note and (v) Liabilities liabilities that have not been currently are not, and would not reasonably be expected to behave, material either individually or in the aggregate, a Company Material Adverse Effect and (v) liabilities disclosed on the Company Disclosure Schedule. CERTAIN CONFIDENTIAL PORTIONS OF THIS EXHIBIT WERE OMITTED AND REPLACED WITH “[***]”. A COMPLETE VERSION OF THIS EXHIBIT HAS BEEN FILED SEPARATELY WITH THE SECRETARY OF THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO AN APPLICATION REQUESTING CONFIDENTIAL TREATMENT UNDER RULE 24b-2 OF THE SECURITIES EXCHANGE ACT OF 1934.
(c) Seller has, to the Knowledge of Seller, made available to Buyer copies of all minute books and written records in the possession of Seller or the Company.
Appears in 1 contract
Sources: Stock Purchase Agreement (Alnylam Pharmaceuticals, Inc.)
Financial Statements; No Undisclosed Liabilities. (a) The Company has delivered to Buyer an unaudited balance sheet of the Company as of December 31, for each of the years 2014 and 2013 and the related statement of operations and retained earnings for the twelve (12) months ended December 31 for each of the years 2014 and 2013. The Company has also delivered to Buyer the monthly unaudited balance sheets for the five (5) months ended May 31, 2015 and the related monthly statement of operations and retained earnings. All the financial statements referenced above are herein referred to as the “Financial Statements” and are attached to Section 2.8 of the Company Disclosure Schedule. The Financial Statements (xi) are, in all material respects, correct and complete in accordance with the books and records of the Sellers, (ii) were prepared in accordance with GAAP consistently applied, (iii) present fairly present in all material respects the financial position and results of operations of the Company as of Business at the dates and for the periods indicatedindicated therein, and (iv) reflect accurately in accordance with all material respects, all costs and expenses of the applicable Historical Accounting Principles, applied Business on a consistent stand alone basis during such periods and (y) the Financial Statements have been prepared from, and are in accordance with, the books and records of the Company. The Company is as if not party to affiliated with any off-balance sheet Contract or other “off balance sheet arrangements” (as defined in Item 303(a) of Regulation S-K under the Securities Exchange Act of 1934, as amended), where the intended effect of such Contract is to avoid disclosure of any material transaction involving, or material Liabilities of, the CompanyPerson.
(b) The Company has no Liabilities On the Balance Sheet Date, the Business did not have any debts, liabilities or obligations of any nature whatsoever (whether accrued, absolute, determined, contingent or otherwise and whether due or to become dueotherwise), except (i) Liabilities whether or not of a type required by GAAP to be disclosed, reflected or reserved against on a balance sheet, which were not fully disclosed, reflected or reserved against in the balance sheet of Balance Sheet or the Company notes thereto, except (i) as of December 31, 2014 included disclosed in the Financial StatementsDisclosure Schedule, (ii) Liabilities incurred after December 31which individually, 2014 or in the Ordinary Course of Businessaggregate, (iii) Liabilities incurred in connection with this Agreement including amounts to be included in Company Transaction Expenses for employee bonuses to be paid by the Company, (iv) Liabilities arising out of the Promissory Note and (v) Liabilities that have not been had and would not reasonably be expected to behave a Material Adverse Effect or (iii) which (without giving effect to any qualifications as to materiality or Material Adverse Effect contained in the representations and warranties but giving effect in lieu thereof, material to the CompanyMinimum Claim Amount) would not be required to be disclosed in the Disclosure Schedule pursuant to the terms and conditions of the representations and warranties of Sellers herein (other than this Section 7.07). Except for current liabilities or obligations which have been incurred since the Balance Sheet Date in the Ordinary Course, since the Balance Sheet Date the Business has not incurred any debt, liability or obligation of any nature (whether accrued, absolute, contingent or otherwise), except (i) as disclosed in the Disclosure Schedule, whether or not required by GAAP to be reflected in the Financial Statements, which, individually or in the aggregate, have not had and would not reasonably be expected to have a Material Adverse Effect or (ii) which (without giving effect to any qualifications as to materiality or Material Adverse Effect contained in the representations and warranties but giving effect in lieu thereof, to the Minimum Claim Amount) would not be required to be disclosed in the Disclosure Schedule pursuant to the terms and conditions of the representations and warranties of Sellers herein (other than this Section 7.07).
Appears in 1 contract
Sources: Asset Purchase Agreement (Smurfit Stone Container Corp)
Financial Statements; No Undisclosed Liabilities. (a) The Company has delivered to Buyer an unaudited Schedule 4.09(a) includes true, correct and complete copies of: (1) Operating Sub's unaudited, pro forma profit and loss statements for the years ended December 31, 1997 and 1998, and (2) the unaudited, pro forma consolidated balance sheet of the Company as of at December 31, for each of 1997 and 1998, and (3) the years 2014 and 2013 and Interim Financial Statements (collectively, the related statement of operations and retained earnings for the twelve (12) months ended December 31 for each of the years 2014 and 2013. The Company has also delivered to Buyer the monthly unaudited balance sheets for the five (5) months ended May 31, 2015 and the related monthly statement of operations and retained earnings. All the financial statements referenced above are herein referred to as the “"Financial Statements” "). Except as may otherwise be indicated therein, the Financial Statements (i) were compiled from the books and are attached to Section 2.8 records of the Company Disclosure Schedule. The Financial Statements regularly maintained by management, and (xii) present fairly present in all material respects the financial position and pro forma results of operations of the Operating Sub for the periods indicated therein and the pro forma consolidated financial position of the Company as of the respective dates thereof (subject to normal year-end adjustments in the case of the Interim Financial Statements). As of the Closing, the Audited Financial Statements (including any related notes and for the periods indicated, schedules)
(i) will be prepared in accordance conformity with the applicable Historical Accounting Principles, GAAP applied on a consistent basis during such periods basis, and (yii) will present fairly the Financial Statements have been prepared from, and are in accordance with, the books and records consolidated financial position of the Company. The Company is not party to any off-balance sheet Contract or other “off balance sheet arrangements” (as defined in Item 303(a) of Regulation S-K under the Securities Exchange Act respective dates thereof and the results of 1934, as amended), where operations and cash flows of the intended effect of such Contract is to avoid disclosure of any material transaction involving, or material Liabilities of, Company for the Companyperiods indicated therein.
(b) The Company has no Indebtedness is the only indebtedness for borrowed money of the Company or the Operating Sub. Except for the Company Indebtedness or as reflected in the Interim Balance Sheet, the Company and Operating Sub do not have, and as a result of the transactions contemplated by this Agreement, will not have, any Liabilities of any nature whatsoever (whether accrued, absolute, determinedaccrued, contingent or otherwise otherwise, and whether due or to become due)) and there is no existing condition, except (i) Liabilities reflected situation or reserved against in the balance sheet set of the Company as of December 31, 2014 included in the Financial Statements, (ii) Liabilities incurred after December 31, 2014 in the Ordinary Course of Business, (iii) Liabilities incurred in connection with this Agreement including amounts to be included in Company Transaction Expenses for employee bonuses to be paid by the Company, (iv) Liabilities arising out of the Promissory Note and (v) Liabilities circumstances that have not been and would not could reasonably be expected to beresult in such a Liability, material except for Liabilities (i) incurred in the ordinary course of business consistent with past practice since the date of the Interim Balance Sheet, or (ii) which, individually or in the aggregate, will not have a Material Adverse Effect on the Condition of the Company and Operating Sub.
(c) The books and records, minute books, stock record books, and other records of the Company and Operating Sub, all of which have been made available by the Company and Operating Sub, are complete and correct and have been maintained in accordance with sound business practices. The minute books of the Company and Operating Sub contain accurate and complete records of all meetings held of, and corporate action taken by, the stockholders, the Board of Directors, and committees of the Board of Directors of each of the Company and Operating Sub, and no meeting of any such stockholders, Board of Directors, or committee has been held for which minutes have not been prepared as of the date hereof and are not contained in such minute book.
(d) The computer and other office equipment listed on the balance sheet included in the Interim Financial Statements is owned by Operating Sub free and clear of all Liens, if any, except Liens relating to the CompanySpecial Assets (as defined in the CA Agreement).
Appears in 1 contract
Financial Statements; No Undisclosed Liabilities. and Absence of Changes.
(a) The Company has delivered to Buyer an unaudited balance sheet sheets of the Company Seller as of at December 31, 1995, December 31, 1996 and September 30, 1997 and the applicable unaudited statements of income and retained earnings, and statements of cash flows of Seller for each the periods then ended, and any adjusted statements of the years 2014 and 2013 operations for such periods and the related statement of operations and retained earnings for notes thereto annexed hereto as Schedule 5.4 (collectively, the twelve (12) months ended December 31 for each of "Financial Statements"), present fairly the years 2014 and 2013. The Company has also delivered to Buyer the monthly unaudited balance sheets for the five (5) months ended May 31financial position, 2015 and the related monthly statement results of operations and retained earnings. All the financial statements referenced above are herein referred to as the “Financial Statements” and are attached to Section 2.8 of the Company Disclosure Schedule. The Financial Statements (x) fairly present in all material respects the financial position and , adjusted results of operations and cash flows of the Company Seller, as of the at such dates and for the periods indicated, in accordance with the applicable Historical Accounting Principles, applied on a consistent basis during such periods and (y) the Financial Statements have been prepared from, and are in accordance with, the books and records of the Company. The Company is not party to any off-balance sheet Contract or other “off balance sheet arrangements” (as defined in Item 303(a) of Regulation S-K under the Securities Exchange Act of 1934, as amended), where the intended effect of such Contract is to avoid disclosure of any material transaction involving, or material Liabilities of, the Companyperiods.
(b) The Company has no Liabilities Except as set forth on the Financial Statements as of and as at September 30, 1997 (the "Cut-Off Date"), (A) Seller did not have any claims, liabilities or obligations of any nature whatsoever material nature, known or unknown, fixed or contingent, matured or unmatured, liquidated or unliquidated, which were not shown or otherwise provided for in the Financial Statements as of and as at September 30, 1997 and (B) all reserves (if any) established by Seller and set forth in the Financial Statements are adequate, appropriate and reasonable and there are no loss contingencies (as such term is used in Statement of Financial Accounting Standard No. 5, of the Financial Accounting Standards Board) which are not adequately provided for in the Financial Statements.
(c) Except as described in Schedule 5.4, since the Cut-Off Date there has been no:
(i) Material and adverse change in the business, properties, assets or liabilities, operations or condition (financial or otherwise) of Seller, nor has any event occurred or been threatened, which may reasonably be expected to have a material and adverse effect on the Assets or the Business;
(ii) Sale, transfer or other disposition of any assets owned or used by Seller in the operation of the Business (whether accruedor not capitalized or expensed for tax or financial statement purposes), except of inventory in the ordinary course of business;
(iii) Cancellation or notice of cancellation, or surrender of any policy of insurance (which has not been cured by payment of premium, procurement of an equivalent policy, or otherwise) relating to or affecting the Assets or the Business;
(iv) Waiver of any right of material value or any cancellation of any indebtedness due to Seller which may have an adverse effect on its Assets or the Business;
(v) Claim, obligation or liability (whether absolute, determinedaccrued, contingent or otherwise and whether due or to become due, matured or unmatured, liquidated or unliquidated) incurred by Seller other than claims, obligations or liabilities (X) incurred in the ordinary course of business and consistent with past practice or (Y) not in excess of $7,500 in the aggregate;
(vi) Payment, discharge or satisfaction of any claim, lien, obligation, encumbrance or liability by Seller (whether absolute, accrued, contingent or otherwise and whether due or to become due, matured or unmatured, liquidated or unliquidated), except other than claims, liens, encumbrances or liabilities (iA) Liabilities which are reflected or reserved against in the balance sheet Financial Statements or (B) which were incurred and paid, discharged or satisfied since such date, in the ordinary course of business and consistent with past practice;
(vii) Material default by Seller on any claim, liability or obligation;
(viii) Write-down of the Company value of any inventory of Seller, or write-off as uncollectible of December 31, 2014 included any notes or Accounts Receivable or any portion thereof of Seller in the Financial Statements, (ii) Liabilities incurred after December 31, 2014 in the Ordinary Course of Business, (iii) Liabilities incurred in connection with this Agreement including amounts to be included in Company Transaction Expenses for employee bonuses to be paid by the Company, (iv) Liabilities arising out excess of the Promissory Note amount reserved therefor on the Seller's books and (v) Liabilities that have not been and would not reasonably be expected to be, material to the Company.records;
Appears in 1 contract
Financial Statements; No Undisclosed Liabilities. (a) The Company has delivered to Buyer an unaudited balance sheet consolidated financial statements of the Company as of December 31, for each Parent set forth on Section 6.7 of the years 2014 Purchaser Disclosure Schedule (i) are derived from the books and 2013 and the related statement of operations and retained earnings for the twelve (12) months ended December 31 for each records of the years 2014 Parent and 2013. The Company has also delivered to Buyer its Subsidiaries, (ii) have been prepared in accordance with U.S. generally accepted accounting principles, consistently applied during the monthly unaudited balance sheets for the five periods covered thereby (5unless as otherwise disclosed therein) months ended May 31, 2015 and the related monthly statement of operations and retained earnings. All the financial statements referenced above are herein referred to as the “Financial Statements” and are attached to Section 2.8 of the Company Disclosure Schedule. The Financial Statements (xiii) fairly present in all material respects the financial position and the results of operations of the Company Parent and its Subsidiaries as of the dates and for during the periods indicatedindicated therein, except for, with respect to interim financial statements, (i) normal year-end adjustments that are not, individually or in accordance with the applicable Historical Accounting Principlesaggregate, applied on a consistent basis during such periods material, (ii) the omission of accompanying notes and schedules and (yiii) the Financial Statements have been prepared from, and are in accordance with, the books and records omission of the Company. The Company is not party to any offa line item for stock-balance sheet Contract or other “off balance sheet arrangements” (as defined in Item 303(a) of Regulation S-K under the Securities Exchange Act of 1934, as amended), where the intended effect of such Contract is to avoid disclosure of any material transaction involving, or material Liabilities of, the Companybased compensation expense.
(b) The Company has Except as reflected in the financial statements on Section 6.7 of the Purchaser Disclosure Schedule, the Parent and its Subsidiaries have no Liabilities of any nature whatsoever (whether accrued, absolute, determined, contingent or otherwise and whether due or that are required by U.S. generally accepted accounting principles to become due), except (i) Liabilities be reflected or reserved against in on the consolidated balance sheet of the Company as Parent, except for Liabilities incurred since the date of December 31, 2014 the latest balance sheet included in the Financial Statements, (ii) Liabilities incurred after December 31, 2014 financial statements in the Ordinary Course ordinary course of Businessbusiness consistent with past practices. Except for Liabilities reflected in the financial statements on Section 6.7 of the Purchaser Disclosure Schedule, (iii) Liabilities the Parent and its Subsidiaries have no off balance sheet Liability of any nature to, or any financial interest in, any third party or entities, the purpose or effect of which is to avoid or adjust the recording of expenses incurred in connection with this Agreement including amounts to be included in Company Transaction Expenses for employee bonuses to be paid by the Company, (iv) Liabilities arising out of the Promissory Note and (v) Liabilities that have not been and would not reasonably be expected to be, material to the CompanyParent or its Subsidiaries.
Appears in 1 contract
Financial Statements; No Undisclosed Liabilities. (a) The Company has delivered to Buyer an unaudited balance sheet of Schedule 4.04 sets forth the Company as of December 31, for each of the years 2014 and 2013 and the related statement of operations and retained earnings for the twelve (12) months ended December 31 for each of the years 2014 and 2013. The Company has also delivered to Buyer the monthly unaudited balance sheets for the five (5) months ended May 31, 2015 and the related monthly statement of operations and retained earnings. All the financial statements referenced above are herein referred to as the “Financial Statements” and are attached to Section 2.8 of the Company Disclosure Schedule. The Financial Statements (xi) were prepared from, and are consistent in all material respects with, the books and records of the Company, (ii) have been prepared in accordance with GAAP and (ii) fairly present in all material respects the financial position condition and results of operations of the Company as of the dates and for the periods indicated, except as otherwise noted therein and subject, in accordance with the applicable Historical Accounting Principles, applied on a consistent basis during such periods and (y) the Financial Statements have been prepared from, and are in accordance with, the books and records case of the Company. The Company is Interim Financial Statements, to normal year-end adjustments (which are not party expected to any off-balance sheet Contract or other “off balance sheet arrangements” (as defined in Item 303(a) of Regulation S-K under the Securities Exchange Act of 1934, as amended), where the intended effect of such Contract is be material to avoid disclosure of any material transaction involving, or material Liabilities of, the Company) and the absence of disclosures normally made in footnotes.
(b) The Company has no Liabilities of does not have any nature whatsoever (whether accrued, absolute, determined, contingent or otherwise and whether due or to become due)Liabilities, except (i) Liabilities reflected or reserved against in the balance sheet of the Company as of December 31, 2014 included in on the Financial Statements, (ii) Liabilities incurred after December 31, 2014 in the Ordinary Course of BusinessBusiness since the Interim Balance Sheet Date, (iii) Liabilities that would not reasonably be likely to be material to the Company, or (iv) Liabilities incurred in connection with this Agreement including amounts to be included in the Transactions.
(c) As of the Signing Date, the Company Transaction Expenses for employee bonuses to be paid by the Companyhas (i) no Indebtedness defined under clauses (a)(i), (ii), (iv) Liabilities arising out of the Promissory Note and ), or (v) Liabilities that have not been and would not reasonably be expected to be, material of the definition of “Indebtedness” (or any guarantees with respect to the Companyforegoing clauses), other than as set forth on Schedule 4.04(c) and (ii) the Company is not a party to, nor has any commitment to become a party to, any “off balance sheet arrangement.”
(d) Seller has sufficient accounting controls in place to provide reasonable assurances that, (i) with respect to the Company all transactions are executed in accordance with management’s general or specific authorizations, (ii) all transactions are recorded as necessary to permit preparation of Seller’s financial statements in conformity with GAAP and to maintain asset accountability, (iii) with respect to the Company access to assets is given only in accordance with management’s general or specific authorizations and (iv) the recorded accountability for assets is compared with the existing assets at reasonable intervals and appropriate action is taken with respect to any differences.
Appears in 1 contract
Financial Statements; No Undisclosed Liabilities. (a) The Company has delivered to the Buyer an unaudited balance sheet copies of audited financial statements of the Company as of at and for the year ended December 31, for each of 2001, together with all related schedules and notes (the years 2014 and 2013 and "Financial Statements"). The balance sheets (including, where FINAL applicable, the related statement of operations notes and retained earnings for schedules) included in the twelve (12) months ended December 31 for each of the years 2014 and 2013. The Company has also delivered to Buyer the monthly unaudited balance sheets for the five (5) months ended May 31, 2015 and the related monthly statement of operations and retained earnings. All the financial statements referenced above are herein referred to as the “Financial Statements” and are attached to Section 2.8 of the Company Disclosure Schedule. The Financial Statements (x) fairly present in all material respects the financial position and results of operations of the Company as of the dates date thereof in all material respects, and the statements of income (or statements of results of operations), stockholders' equity and cash flows (including the related notes and schedules) included in the Financial Statements fairly present the results of operations, stockholders' equity, and retained earnings and cash flows, as the case may be, of the Company for the periods indicatedyear ended December 31, 2001 in accordance with GAAP, except as stated therein or, where applicable, in the applicable Historical Accounting Principles, applied on a consistent basis during such periods and (y) notes to the Financial Statements have been prepared from, and are in accordance with, the books and records of the Company. The Company is not party to any off-balance sheet Contract or other “off balance sheet arrangements” (as defined in Item 303(a) of Regulation S-K under the Securities Exchange Act of 1934, as amended), where the intended effect of such Contract is to avoid disclosure of any material transaction involving, or material Liabilities of, the CompanyStatements.
(b) The Company has Except as disclosed on SCHEDULE 4.7, since December 31, 2001, there were no Liabilities liabilities or obligations of any nature whatsoever (whether accrued, absolute, determinedfixed, contingent contingent, liquidated, unliquidated or otherwise and whether due or to become due)) required by GAAP to be set forth on the balance sheet of the Company that were not reflected or reserved against on such balance sheet as of December 31, except (i) Liabilities 2001, included in the Financial Statements. Except as and to the extent specifically reflected or reserved against in the balance sheet of the Company Financial Statements or otherwise disclosed in SCHEDULE 4.7, as of December 31, 2014 included 2001 the Company does not have any liabilities or obligations of any nature, whether absolute, accrued, contingent, matured or unmatured or otherwise, and whether due or to become due (including, without limitation, any liability for Taxes and interest, penalties and other charges payable with respect to any such liability or obligation). Since December 31, 2001, the Company has not incurred any liabilities other than liabilities which (i) have been incurred in the Financial Statements, ordinary course of business consistent with past practice and (ii) Liabilities incurred after December 31, 2014 in the Ordinary Course of Business, (iii) Liabilities incurred in connection with this Agreement including amounts to be included in Company Transaction Expenses for employee bonuses to be paid by the Company, (iv) Liabilities arising out of the Promissory Note and (v) Liabilities that have not been had and would not reasonably be expected to behave, material to individually or in the Companyaggregate, a Material Adverse Effect.
Appears in 1 contract
Financial Statements; No Undisclosed Liabilities. (a) Each of the financial statements listed on Section 3.6(a) of the Companies Disclosure Schedules (including, in each case, any related notes thereto) as of their respective dates (the “Company Financials”): (i) complied as to form in all material respects with all applicable accounting requirements, (ii) were prepared in accordance with United States generally accepted accounting principles (“GAAP”) applied on a consistent basis throughout the periods involved (except as may be indicated in the notes thereto) and (iii) fairly presented the consolidated financial condition of MOAC as at the respective dates thereof and the consolidated results of the MOAC’s operations and cash flows for the periods indicated. The Company has delivered to Buyer an unaudited consolidated balance sheet of the Company MOAC as of December 31, for each of the years 2014 and 2013 and the related statement of operations and retained earnings for the twelve (12) months ended December 31 for each of the years 2014 and 2013. The Company has also delivered to Buyer the monthly unaudited balance sheets for the five (5) months ended May 31, 2015 and the related monthly statement of operations and retained earnings. All the financial statements referenced above are herein 2007 is hereinafter referred to herein as the “Financial StatementsCompany Balance Sheet,” and are attached December 31, 2007 is hereinafter referred to Section 2.8 herein as the “Company Balance Sheet Date”. Except as noted in the opinions contained in the Company Financials, the Company Financials and opinions were rendered without qualification or exception and were not subject to any contingency. No event has occurred since the preparation of the Company Disclosure Schedule. The Financial Statements (x) fairly present in all material respects the financial position and results of operations Financials that would require a restatement of the Company as Financials under GAAP other than by reason of the dates and for the periods indicated, a change in accordance with the applicable Historical Accounting Principles, applied on a consistent basis during such periods and (y) the Financial Statements have been prepared from, and are in accordance with, the books and records of the Company. The Company is not party to any off-balance sheet Contract or other “off balance sheet arrangements” (as defined in Item 303(a) of Regulation S-K under the Securities Exchange Act of 1934, as amended), where the intended effect of such Contract is to avoid disclosure of any material transaction involving, or material Liabilities of, the CompanyGAAP.
(b) The Company Except as set forth in the Companies Disclosure Schedules, neither of the Companies has no Liabilities any liabilities or obligations of any nature whatsoever (whether accrued, absolute, determined, contingent or otherwise and whether due or to become due), otherwise) except (i) Liabilities reflected liabilities or reserved against obligations disclosed or provided for in the balance sheet of Company Financials or the Company as of December 31, 2014 included in the Financial Statementsnotes thereto, (ii) Liabilities liabilities or obligations incurred after December 31, 2014 in the Ordinary Course ordinary course of Business, (iii) Liabilities incurred business or otherwise that individually or in connection with this Agreement including amounts to be included in Company Transaction Expenses for employee bonuses to be paid by the Company, (iv) Liabilities arising out of the Promissory Note and (v) Liabilities that aggregate have not been had and would not reasonably be expected to behave a Material Adverse Effect, material (iii) express obligations or liabilities under Contracts entered into prior to the Companydate of this Agreement, (iv) express obligations or liabilities under Contracts entered into after the date of this Agreement, provided that such Contracts are permitted under this Agreement, (v) liabilities included in Working Capital and (vi) commitments entered into after the date of this Agreement to purchase fleet or equipment for lease or sale set forth in Section 3.6(b) of the Companies Disclosure Schedules.
Appears in 1 contract
Financial Statements; No Undisclosed Liabilities. (a) The Company has delivered to Buyer an unaudited Set forth on Schedule 3.6(a) are: (i) the audited consolidated balance sheet sheets of the Company as of December 31, 2021 and 2022; (ii) the related audited consolidated statements of comprehensive income for each of the years 2014 ended December 31, 2021 and 2013 2022; and (iii) the related statement audited consolidated statements of operations and retained earnings cash flows for the twelve (12) months years ended December 31 for each of the years 2014 and 2013. The Company has also delivered to Buyer the monthly unaudited balance sheets for the five (5) months ended May 31, 2015 2021 and 2022 (the related monthly statement of operations and retained earnings. All the foregoing financial statements referenced above are herein referred to as statements, collectively, the “Financial Statements” ”). Except as set forth on Schedule 3.6(a), the Financial Statements (i) have been prepared from the books and are attached to Section 2.8 records of the Company Disclosure Schedule. The Financial Statements in accordance with GAAP consistently applied, (xii) fairly present are correct in all material respects respects, and (iii) present fairly, in all material respects, changes in shareholders equity, the financial position condition and results of operations of the Company as of the respective dates thereof and for the respective periods indicatedcovered thereby, subject, in accordance with the applicable Historical Accounting Principlescase of the unaudited Financial Statements, applied on a consistent basis during such periods to normal recurring year-end adjustments (the effect of which will not, individually or in the aggregate, be material) and (y) the Financial Statements have been prepared from, and are in accordance with, the absence of footnotes. The books and records of the Company are correct, have been maintained in accordance with sound business practices, and accurately reflect in all material respects all the transactions and actions therein described. At the Closing, all such books and records will be in the possession of the Company. The Company is not party to any off-balance sheet Contract or other “off balance sheet arrangements” (as defined in Item 303(a) of Regulation S-K under the Securities Exchange Act of 1934, as amended), where the intended effect of such Contract is to avoid disclosure No financial statements of any material transaction involving, or material Liabilities of, Person other than the Company are required by GAAP to be included in the Company’s financial statements.
(b) The With the exception of those Liabilities that would not reasonably expect to be, individually or in the aggregate, material to the Company has no Liabilities of or the Business, the Company does not have any nature whatsoever (whether accruedLiabilities, absolute, determined, contingent or otherwise and whether due or to become due), except except: (i) Liabilities reflected on, or reserved against in the balance sheet of the Company as of December 31in, 2014 included in the Financial Statements, ; (ii) Liabilities incurred after December 31, 2014 that have arisen since the date of the Interim Balance Sheet in the Ordinary Course of Business, none of which is a Liability resulting from or arising out of any breach of contract, breach of warranty, tort, infringement, misappropriation, or violation of Law; (iii) Liabilities incurred in connection with this Agreement including amounts to be included in Company Transaction Expenses for employee bonuses to be paid by under executory contracts, none of which is a Liability resulting from a default under the Company, same; and (iv) Liabilities arising out set forth on Schedule 3.6(b).
(c) Schedule 3.6(c) sets forth a correct list of all Indebtedness of the Promissory Note Company and (v) Liabilities that have not been and would not reasonably be expected to be, material to identifies for each item of Indebtedness the Companyoutstanding amount thereof as of the date of this Agreement.
Appears in 1 contract
Sources: Contribution Agreement (Proficient Auto Logistics, Inc)
Financial Statements; No Undisclosed Liabilities. (a) The Company has delivered to Buyer an unaudited Set forth on Schedule 3.6(a) are: (i) the audited consolidated balance sheet sheets of the Company as of December 31, 2021 and 2022; (ii) the related audited consolidated statements of comprehensive income for each of the years 2014 ended December 31, 2021 and 2013 2022; and (iii) the related statement audited consolidated statements of operations and retained earnings cash flows for the twelve (12) months years ended December 31 for each of the years 2014 and 2013. The Company has also delivered to Buyer the monthly unaudited balance sheets for the five (5) months ended May 31, 2015 2021 and 2022 (the related monthly statement of operations and retained earnings. All the foregoing financial statements referenced above are herein referred to as statements, collectively, the “Financial Statements” ”). Except as set forth on Schedule 3.6(a), the Financial Statements (i) have been prepared from the books and are attached to Section 2.8 records of the Company Disclosure Schedule. The Financial Statements in accordance with GAAP consistently applied, (xii) fairly present are correct in all material respects respects, and (iii) present fairly, in all material respects, changes in shareholders equity, the financial position condition and results of operations of the Company as of the respective dates thereof and for the respective periods indicatedcovered thereby, subject, in accordance with the applicable Historical Accounting Principlescase of the unaudited Financial Statements, applied on a consistent basis during such periods to normal recurring year-end adjustments (the effect of which will not, individually or in the aggregate, be material) and (y) the Financial Statements have been prepared from, and are in accordance with, the absence of footnotes. The books and records of the Company are correct, have been maintained in accordance with sound business practices, and accurately reflect in all material respects all the transactions and actions therein described. At the Closing, all such books and records will be in the possession of the Company. The Company is not party to any off-balance sheet Contract or other “off balance sheet arrangements” (as defined in Item 303(a) of Regulation S-K under the Securities Exchange Act of 1934, as amended), where the intended effect of such Contract is to avoid disclosure No financial statements of any material transaction involving, or material Liabilities of, Person other than the Company are required by GAAP to be included in the Company’s financial statements.
(b) The With the exception of those Liabilities that would not reasonably expect to be, individually or in the aggregate, material to the Company has no Liabilities of or the Business, the Company does not have any nature whatsoever (whether accruedLiabilities, absolute, determined, contingent or otherwise and whether due or to become due), except except: (i) Liabilities reflected on, or reserved against in the balance sheet of the Company as of December 31in, 2014 included in the Financial Statements, ; (ii) Liabilities incurred after December 31, 2014 that have arisen since the date of the Interim Balance Sheet in the Ordinary Course of Business, none of which is a Liability resulting from or arising out of any breach of contract, breach of warranty, tort, infringement, misappropriation, or violation of Law; (iii) Liabilities incurred in connection with this Agreement including amounts to be included in Company Transaction Expenses for employee bonuses to be paid by under executory contracts, none of which is a Liability resulting from a default under the Companysame, and (iv) Liabilities arising out set forth on Schedule 3.6(b).
(c) Schedule 3.6(c) sets forth a correct list of all Indebtedness of the Promissory Note Company and (v) Liabilities that have not been and would not reasonably be expected to be, material to identifies for each item of Indebtedness the Companyoutstanding amount thereof as of the date of this Agreement.
Appears in 1 contract
Sources: Stock Purchase Agreement (Proficient Auto Logistics, Inc)
Financial Statements; No Undisclosed Liabilities. (a) The Company has delivered to Buyer an unaudited balance sheet Section 4.07 of the Seller Disclosure Schedule sets forth (a) the audited statement of assets of the Company to be acquired and liabilities of the Company to be assumed as of September 30, 2001 (the “Balance Sheet”), and the audited statement of expenses of the Company for the nine months ended September 30, 2001, together with the notes to such financial statements, and (b) the audited statement of expenses of the Company for the year ended December 31, for each of 2000, together with the years 2014 and 2013 and the related statement of operations and retained earnings for the twelve notes to such financial statements (12) months ended December 31 for each of the years 2014 and 2013. The Company has also delivered to Buyer the monthly unaudited balance sheets for the five (5) months ended May 31, 2015 and the related monthly statement of operations and retained earnings. All the financial statements referenced above are herein referred described in clauses (a) and (b) above, together with the notes to as such financial statements, collectively, the “Financial Statements” and are attached to Section 2.8 of the Company Disclosure Schedule”). The Financial Statements have been prepared in conformity with GAAP consistently applied (xexcept in each case as described in the notes thereto) and on a basis that fairly present presents in all material respects the financial position condition and results of operations of the Company as of the respective dates thereof and for the respective periods indicated.
(b) Except as and to the extent reflected on the Balance Sheet or in Section 4.07(b) of the Seller Disclosure Schedule, the Company did not have at September 30, 2001 any liabilities or obligations of any nature (whether accrued, absolute, contingent or otherwise and whether or not required by GAAP to be set forth on a balance sheet of the Company or the notes thereto)(“Pre-Closing Liabilities”). Since September 30, 2001, the Company has not incurred any Pre-Closing Liabilities except for such liabilities which were incurred by the Company since September 30, 2001 in the ordinary course of business consistent with past practice. This Section 4.07(b) does not relate to employee or employment benefits matters, such items being the subject of Section 4.14.
(c) The financial statements to be delivered by Seller to Buyer pursuant to Section 8.14(a) will have been prepared, as of the respective dates thereof and for the respective periods indicated, in accordance with the applicable Historical Accounting Principles, applied on a consistent basis during GAAP; provided that Seller makes no representation or warranty that such periods and (y) the Financial Statements have been prepared from, and are financial statements will be in accordance with, with the books and records of the Company. The Company is not party to any off-balance sheet Contract or other “off balance sheet arrangements” (as defined in Item 303(a) requirements of Regulation S-K under the Securities Exchange Act of 1934, as amended), where the intended effect of such Contract is to avoid disclosure of any material transaction involving, or material Liabilities of, the Company.
(b) The Company has no Liabilities of any nature whatsoever (whether accrued, absolute, determined, contingent or otherwise and whether due or to become due), except (i) Liabilities reflected or reserved against in the balance sheet X of the Company as of December 31, 2014 included in the Financial Statements, (ii) Liabilities incurred after December 31, 2014 in the Ordinary Course of Business, (iii) Liabilities incurred in connection with this Agreement including amounts to be included in Company Transaction Expenses for employee bonuses to be paid by the Company, (iv) Liabilities arising out of the Promissory Note and (v) Liabilities that have not been and would not reasonably be expected to be, material to the CompanyExchange Act.
Appears in 1 contract
Sources: Purchase Agreement (Deltagen Inc)
Financial Statements; No Undisclosed Liabilities. (a) The Company has delivered to Buyer an unaudited balance sheet financial statements of the Company as of December 31, for each of the years 2014 and 2013 and the related statement of operations and retained earnings for the twelve (12) months ended December 31 for each of the years 2014 and 2013. The Company has also delivered to Buyer the monthly unaudited balance sheets for the five (5) months ended May 31, 2015 and the related monthly statement of operations and retained earnings. All the financial statements referenced above are herein referred to as the “Financial Statements” and are attached to Section 2.8 of included in the Company Disclosure Schedule. The Financial Statements SEC Documents, whether filed before or after the date hereof, (xi) fairly present comply as to form in all material respects the financial position and results of operations with all applicable requirements of the Company as of Securities Act and the dates and for the periods indicatedExchange Act, (ii) are in accordance conformity with the applicable Historical Accounting Principlesgenerally accepted accounting principles ("GAAP"), applied on a consistent basis (subject, in the case of unaudited statements, to notes and normal year-end audit adjustments that will not be material in amount or effect) during such the periods involved (except as may be indicated in the related notes and schedules thereto) and (yiii) fairly present the Financial Statements have been prepared fromconsolidated financial position of the Company and its consolidated Subsidiaries as of the dates thereof and the consolidated results of their operations and cash flows for the periods then ended (subject, in the case of unaudited statements, to normal year-end audit adjustments that will not be material in amount or effect). Except as set forth in Schedule 3.8 of the Company Disclosure Schedule and except as set forth in the financial statements of the Company included in the Company SEC Documents filed and publicly available prior to the date of this Agreement, and are except for liabilities and obligations incurred in accordance with, the books and records ordinary course of business since the date of the Company. The Company is not party to any off-most recent consolidated balance sheet Contract included in the Company SEC Documents filed and publicly available prior to the date of this Agreement, neither the Company nor any of its Subsidiaries has any liabilities or other “off balance sheet arrangements” (as defined in Item 303(a) of Regulation S-K under the Securities Exchange Act of 1934, as amended), where the intended effect of such Contract is to avoid disclosure of any material transaction involving, or material Liabilities of, the Company.
(b) The Company has no Liabilities obligations of any nature whatsoever (whether accrued, absolute, determined, contingent or otherwise and whether due or otherwise) required by GAAP to become due), except (i) Liabilities reflected or reserved against in the be set forth on a consolidated balance sheet of the Company as and its consolidated Subsidiaries or in the notes thereto, provided, however, that there are no undisclosed liabilities which are reasonably likely, individually or in the aggregate, to have a Material Adverse Effect on the Company, whether or not arising in the ordinary course of December 31, 2014 business since the date of the most recent consolidated balance sheet included in the Financial Statements, (ii) Liabilities incurred after December 31, 2014 in the Ordinary Course of Business, (iii) Liabilities incurred in connection with this Agreement including amounts to be included in Company Transaction Expenses for employee bonuses to be paid by the Company, (iv) Liabilities arising out of the Promissory Note SEC Documents filed and (v) Liabilities that have not been and would not reasonably be expected to be, material publicly available prior to the Companydate of this Agreement.
Appears in 1 contract
Sources: Merger Agreement (Cellular Communications of Puerto Rico Inc /De/)
Financial Statements; No Undisclosed Liabilities. (ai) The Company has and the Shareholder have delivered to Buyer an unaudited the Purchaser a balance sheet of the Company as of September 30, 1998 ("1998 Balance Sheet"), the income statement of the Company for the nine months ended September 30, 1998 and the income statement of the Company for the calendar year ended December 31, for each of the years 2014 and 2013 and the related statement of operations and retained earnings for the twelve 1997 (12) months ended December 31 for each of the years 2014 and 2013. The Company has also delivered to Buyer the monthly unaudited balance sheets for the five (5) months ended May 31, 2015 and the related monthly statement of operations and retained earnings. All the financial statements referenced above are herein hereinafter referred to as the “"Financial Statements” and are attached to Section 2.8 of the Company Disclosure Schedule"). The Financial Statements (x) fairly present are true and correct in all material respects and the 1998 Balance Sheet has been prepared in accordance with generally accepted accounting principles applied consistently throughout the periods involved. The 1998 Balance Sheet fully and fairly presents the financial position condition of the Company as at the date thereof and the income statements included in the Financial Statements fully and fairly present, on a cash basis, the results of the operations of the Company as of the dates and for the periods indicated, . The 1998 Balance Sheet fairly reflects all liabilities of the Company of the types normally reflected in accordance with a balance sheet as at the applicable Historical Accounting Principles, applied on a consistent basis during such periods and (y) date thereof. Except to the Financial Statements have been prepared fromextent set forth in or provided for in the 1998 Balance Sheet of the Company or as identified in Exhibit B, and are except for current liabilities incurred in accordance withthe ordinary course of business consistent with past practices (and not materially different in type or amount), the books and records of the Company. The Company is not party to any off-balance sheet Contract or other “off balance sheet arrangements” (as defined in Item 303(a) of Regulation S-K under the Securities Exchange Act of 1934, as amended), where the intended effect of such Contract is to avoid disclosure of any material transaction involving, or material Liabilities of, the Company.
(b) The Company has no Liabilities material liabilities or obligations of any nature whatsoever (nature, whether accrued, absolute, determined, contingent or otherwise and otherwise, whether due or to become due), except whether properly reflected under generally accepted accounting principles as a liability or a charge or reserve against an asset or equity account, and whether the amount thereof is readily ascertainable or not. Without modifying the representation contained herein, it is understood that the Financial Statements are unaudited and have been prepared by a firm which is not independent. A true and correct copy of the Financial Statements is attached hereto as Exhibit C.
(iii) Liabilities reflected or reserved against in The Company and the balance sheet Shareholder have delivered to the Purchaser a pro forma schedule of total excess working capital payments of the Company as of December 31October 30, 2014 included 1998 prepared on a modified accrual basis in accordance with generally accepted accounting principles as set forth in Exhibit L (the Financial Statements, (ii) Liabilities incurred after December 31, 2014 in "Excess Working Capital Schedule"). To the Ordinary Course of Business, (iii) Liabilities incurred in connection with this Agreement including amounts to be included in Company Transaction Expenses for employee bonuses to be paid by the Company, (iv) Liabilities arising out best of the Promissory Note knowledge of the Company and (v) Liabilities that have not been the Shareholder, the Excess Working Capital Schedule is true and would not reasonably be expected to be, correct in all material to the Companyrespects.
Appears in 1 contract
Sources: Purchase and Sale Agreement (Access Worldwide Communications Inc)
Financial Statements; No Undisclosed Liabilities. (a) The Company has delivered Section 3.05(a) to Buyer an the Disclosure Letter sets forth true and accurate copies of the Company’s unaudited financial statements consisting of the balance sheet of the Company as of at December 31, for 31st in each of the years 2014 2020 and 2013 2021 and the related statement statements of operations and retained earnings for the twelve (12) months ended December 31 for each of the years 2014 and 2013. The Company has also delivered to Buyer the monthly unaudited balance sheets for the five (5) months ended May 31, 2015 and the related monthly statement of operations income and retained earnings. All , stockholders’ equity and cash flow for the years then ended (and/or any such financial statements referenced above are herein referred of the Company (including pro forma information if required) as may be requested by Parent to as enable Parent to comply on a timely basis with its obligations under the Exchange Act or other Applicable Laws) (the “Financial Statements” and are attached to Section 2.8 of the Company Disclosure Schedule”). The Financial Statements (xi) are accurate, complete, and consistent with the books and records of the Company, (ii) have been prepared on a tax-basis of accounting consistent with prior accounting periods, and (iii) fairly present in all material respects the financial position and position, results of operations operations, and changes in financial position of the Company as of the dates and for the periods indicated, in accordance with the applicable Historical Accounting Principles, applied on a consistent basis during such periods and (y) the Financial Statements have been prepared from, and are in accordance with, the books and records of the Company. The Company is not party to any off-balance sheet Contract or other “off balance sheet arrangements” (as defined in Item 303(a) of Regulation S-K under the Securities Exchange Act of 1934, as amended), where the intended effect of such Contract is to avoid disclosure of any material transaction involving, or material Liabilities of, the Company.
(b) The Company has no Liabilities of any nature whatsoever (whether accrued, absolute, determined, contingent or otherwise and whether due or to become due), except (i) Liabilities reflected or reserved against in the balance sheet of the Company as of December 31, 2014 included 2021 (the “Company Balance Sheet Date”) is herein referred to as the “Company Balance Sheet.” The Company has no Liabilities that are not fully reflected or reserved against in the Financial StatementsCompany Balance Sheet, except Liabilities that are executory performance obligations arising under existing Contracts to which the Company is a party or otherwise bound (iithat do not result from a breach or default thereunder) Liabilities incurred after December 31, 2014 in the Ordinary Course of Business, (iii) Liabilities incurred in connection with this Agreement including amounts and that are not required to be included reflected in financial statements prepared on a tax-basis of accounting consistent with prior accounting periods. The Company Transaction Expenses for employee bonuses is not a guarantor, indemnitor, surety, or other obligor of any Indebtedness of any other Person.
(b) Section 3.05(b) to be paid by the Disclosure Letter sets forth an accurate and complete list of all Indebtedness of the Company, (iv) Liabilities arising out including, for each item of Indebtedness, the Promissory Note Contract governing such Indebtedness and (v) Liabilities that have not been and would not reasonably be expected to be, material to the Companyany assets securing such Indebtedness.
Appears in 1 contract
Sources: Merger Agreement (DatChat, Inc.)
Financial Statements; No Undisclosed Liabilities. (a) The Company has delivered to Buyer an unaudited balance sheet Schedule 4.9(a) includes true, correct and complete copies of the Company Company's consolidated balance sheets as of December 31, 1999 and 2000, and the consolidated statements of income for each of the years 2014 ended December 31, 1999 and 2013 2000 (the "Annual Financial Statements"), and the related statement of operations and retained earnings for Interim Financial Statements (collectively, the twelve (12) months ended December 31 for each of the years 2014 and 2013. The Company has also delivered to Buyer the monthly unaudited balance sheets for the five (5) months ended May 31, 2015 and the related monthly statement of operations and retained earnings. All the financial statements referenced above are herein referred to as the “"Financial Statements” and are attached to Section 2.8 of the Company Disclosure Schedule"). The Financial Statements (x) are based upon the information contained in the books and records of the Company and fairly present present, in all material respects respects, the financial position and results of operations condition of the Company as of the dates thereof and results of operations for the periods indicated, in accordance with the applicable Historical Accounting Principles, applied on a consistent basis during such periods and (y) the referred to therein. The Annual Financial Statements have been prepared from, and are in accordance withwith GAAP, consistently applied throughout the books periods indicated. The Interim Financial Statements have been prepared in accordance with GAAP applicable to unaudited interim financial statements (and records thus may not contain all notes and may not contain prior period comparative data which are required to be prepared in accordance with GAAP) consistent with the Annual Financial Statements and reflect all adjustments necessary to a fair statement of the Company. The Company is not party to any off-balance sheet Contract or other “off balance sheet arrangements” (as defined in Item 303(aresults for the interim period(s) of Regulation S-K under the Securities Exchange Act of 1934, as amended), where the intended effect of such Contract is to avoid disclosure of any material transaction involving, or material Liabilities of, the Companypresented.
(b) The Except for the Company has no Indebtedness, the indebtedness set forth on Schedule 4.9(b) or as reflected in the Interim Balance Sheet, the Company does not have, and as a result of the transactions contemplated by this Agreement, will not have, any Liabilities of any nature whatsoever (whether accrued, absolute, determinedaccrued, contingent or otherwise otherwise, and whether due or to become due), except for Liabilities (i) Liabilities reflected or reserved against incurred in the balance sheet ordinary course of business consistent with past practice since the date of the Company as of December 31Interim Balance Sheet, 2014 included in the Financial Statements, or (ii) Liabilities incurred after December 31which, 2014 individually or in the Ordinary Course aggregate, will not have a Material Adverse Effect on the Condition of Businessthe Company.
(c) The minute books and stock record books of the Company, (iii) Liabilities incurred in connection with this Agreement including amounts to be included in Company Transaction Expenses for employee bonuses to be paid all of which have been made available by the Company, (iv) Liabilities arising out have been maintained in accordance with sound business practices. The minute books of the Promissory Note Company contain accurate and (v) Liabilities that have not been complete records of all meetings held of, and would not reasonably be expected to becorporate action taken by, material to the Stockholders, the Board of Directors, and committees of the Board of Directors of the Company.
Appears in 1 contract
Financial Statements; No Undisclosed Liabilities. (a) The Each Company has delivered to Buyer an unaudited balance sheet true and complete copies of the Companies’ audited consolidated Financial Statements of the Seller, each Company and Labor Services, Inc. as of and for the years ended December 31, 2011 and 2012 and unaudited consolidated Financial Statements of each Company as of December 31, for each of the years 2014 and 2013 and the related statement of operations and retained earnings for the twelve (12) 11 months ended December 31 for each of the years 2014 and 2013. The Company has also delivered to Buyer the monthly unaudited balance sheets for the five November 30, 2013 (5) months ended May 31, 2015 and the related monthly statement of operations and retained earnings. All the financial statements referenced above are herein referred to as collectively the “Company Financial Statements” ”), and said Company Financial Statements are attached to Section 2.8 of the hereto as Schedule 3.8(a). Except as set forth in Schedule 3.8(a) hereto, such Company Disclosure Schedule. The Financial Statements (x) present fairly present in all material respects the consolidated financial position and condition, results of operations of and cash flows for the Company as of entities included therein for the dates and for or periods indicated thereon in accordance with GAAP applied in all material respects on a consistent basis throughout the periods indicated, in accordance except as disclosed therein and, except with respect to the applicable Historical Accounting Principlesinterim Financial Statements as of and for the 11 months ended November 30, applied on a consistent basis during such periods 2013 (i) for normal year-end adjustments, (ii) for the omission of footnote disclosures and statement of stockholders’ equity and cash flows as required by GAAP, and (yiii) for the Financial Statements have been prepared from, and are in accordance with, the books and records of the Company. The Company is not party to any off-balance sheet Contract or other “off balance sheet arrangements” (as defined in Item 303(a) of Regulation S-K under the Securities Exchange Act of 1934, as amendedmatters set forth on Schedule 3.8(a), where the intended effect of such Contract is to avoid disclosure of any material transaction involving, or material Liabilities of, the Company.
(b) The Except for (i) the liabilities reflected on or accrued for on each Company’s December 31, 2012 balance sheet included with the Company has Financial Statements, (ii) Funded Indebtedness, trade payables, accrued expenses and other liabilities incurred by the Companies since December 31, 2012 in the ordinary course of business (it being agreed that liabilities resulting from any breach of Contract or violation of Legal Requirements shall in no Liabilities event be deemed incurred in the ordinary course of business), (iii) executory contract obligations under (x) Contracts listed in Schedule 3.13(a) hereto, and/or (y) Contracts not required to be listed in Schedule 3.13(a) hereto, and
(i) the liabilities of the Companies set forth in Schedule 3.8(b) hereto, and (v) the liabilities included in the calculation of Closing Date Working Capital, the Companies do not have any nature whatsoever material liabilities or obligations (whether accrued, absolute, contingent, known, unknown, asserted or unasserted, accrued, contingent, absolute, determined, contingent determinable or otherwise otherwise, and whether due or not of a nature required to become due), except (i) Liabilities be reflected or reserved against in the a balance sheet of the Company as of December 31, 2014 included in the Financial Statements, (ii) Liabilities incurred after December 31, 2014 in the Ordinary Course of Business, (iii) Liabilities incurred in connection accordance with this Agreement including amounts to be included in Company Transaction Expenses for employee bonuses to be paid by the Company, (iv) Liabilities arising out of the Promissory Note and (v) Liabilities that have not been and would not reasonably be expected to be, material to the CompanyGAAP).
Appears in 1 contract