Financial Statements; Undisclosed Liabilities. (a) The Company has made available to HighCape a true and complete copy of (i) the audited consolidated balance sheets of the Group Companies as of December 31, 2019, and the related audited consolidated statements of operations and comprehensive loss, convertible preferred stock and stockholders’ deficit and cash flows of the Group Companies for each of the periods then ended, (ii) the unaudited consolidated balance sheets of the Group Companies as of December 31, 2020, and the related unaudited consolidated statements of operations and comprehensive loss, convertible preferred stock and stockholders’ deficit and cash flows of the Group Companies for the twelve (12)-month period then ended, and (iii) the unaudited consolidated balance sheets of the Group Companies as of December 31, 2019 and December 31, 2020 (the “Latest Balance Sheet”) and the related unaudited consolidated statements of operations and comprehensive loss, convertible preferred stock and stockholders’ deficit and cash flows of the Group Companies for each of the periods then ended (clauses (i), (ii), and (iii) are collectively, the “Financial Statements”), each of which are attached as Section 3.4(a) of the Company Disclosure Schedules. Each of the Financial Statements (including the notes thereto) (A) was prepared in accordance with GAAP applied on a consistent basis throughout the periods indicated (except as may be indicated in the notes thereto), (B) fairly presents, in all material respects, the financial position, results of operations and cash flows of the Group Companies as at the date thereof and for the period indicated therein, except as otherwise specifically noted therein, and (C) in the case of the Financial Statements included in clause (iii) only, were prepared in accordance with the standards of the PCAOB, and comply in all material respects with the applicable accounting requirements and with the rules and regulations of the SEC, the Exchange Act and the Securities Act in effect as of the respective dates thereof (including Regulation S-X or Regulation S-K, as applicable). (b) The audited consolidated balance sheets of the Group Companies as of December 31, 2019 and December 31, 2020, and the related audited consolidated statements of operations and comprehensive loss, convertible preferred stock and stockholders’ deficit and cash flows of the Group Companies for each of the periods then ended (the “Closing Company Audited Financial Statements”), when delivered following the date of this Agreement in accordance with Section 5.17, (i) will be prepared in accordance with GAAP applied on a consistent basis throughout the periods indicated (except as may be indicated in the notes thereto), (ii) will fairly present, in all material respects, the financial position, results of operations and cash flows of the Group Companies as at the date thereof and for the period indicated therein, except as otherwise specifically noted therein, (iii) will be audited in accordance with the standards of the PCAOB and will contain an unqualified report of the Company’s auditors, and (iv) will comply in all material respects with the applicable accounting requirements and with the rules and regulations of the SEC, the Exchange Act and the Securities Act in effect as of the respective dates thereof (including Regulation S-X or Regulation S-K, as applicable). (c) Except (i) as set forth on the face of the Latest Balance Sheet, (ii) for Liabilities incurred in the ordinary course of business since the Latest Balance Sheet Date (none of which is a Liability for breach of contract, breach of warranty, tort, infringement or violation of Law), (iii) for Liabilities incurred in connection with the negotiation, preparation or execution of this Agreement or any Ancillary Documents, the performance of their respective covenants or agreements in this Agreement or any Ancillary Document or the consummation of the transactions contemplated hereby or thereby and (iv) for Liabilities that are not and would not reasonably be expected to be, individually or in the aggregate, material to the Group Companies, taken as a whole, no Group Company has any Liabilities of the type required to be set forth on a balance sheet in accordance with GAAP. (d) The Group Companies have established and maintain systems of internal accounting controls that are designed to provide, in all material respects, reasonable assurance that (i) all transactions are executed in accordance with management’s authorization and (ii) all transactions are recorded as necessary to permit preparation of proper and accurate financial statements in accordance with GAAP and to maintain accountability for the Group Companies’ assets. The Group Companies maintain and, for all periods covered by the Financial Statements, have maintained books and records of the Group Companies in the ordinary course of business that are accurate and complete and reflect the revenues, expenses, assets and liabilities of the Group Companies in all material respects. (e) Except as set forth in Section 3.4(e) of the Company Disclosure Schedule, since the incorporation of the Company, no Group Company has received any written complaint, allegation, assertion or claim that there is (i) “significant deficiency” in the internal controls over financial reporting of the Group Companies, (ii) a “material weakness” in the internal controls over financial reporting of the Group Companies or (iii) fraud, whether or not material, that involves management or other employees of the Group Companies who have a significant role in the internal controls over financial reporting of the Group Companies.
Appears in 2 contracts
Sources: Business Combination Agreement (HighCape Capital Acquisition Corp.), Business Combination Agreement (HighCape Capital Acquisition Corp.)
Financial Statements; Undisclosed Liabilities. (a) The Company has made available to HighCape ARYA a true and complete copy of (ithe following financial statements, which are attached as Section 3.4(a) of the Company Disclosure Schedules: audited consolidated balance sheets of the Group Companies as of December 31, 20192022 (the “Latest Balance Sheet”) and December 31, 2021 and the related audited consolidated statements of operations and comprehensive loss, convertible preferred stock and stockholders’ deficit and cash flows of the Group Companies for each of the periods years then ended, (ii) the unaudited consolidated balance sheets of the Group Companies as of December 31, 2020, and the related unaudited consolidated statements of operations and comprehensive loss, convertible preferred stock and stockholders’ deficit and cash flows of the Group Companies for the twelve (12)-month period then ended, and (iii) the unaudited consolidated balance sheets of the Group Companies as of December 31, 2019 and December 31, 2020 ended (the “Latest Balance Sheet”) and the related unaudited consolidated statements of operations and comprehensive loss, convertible preferred stock and stockholders’ deficit and cash flows of the Group Companies for each of the periods then ended (clauses (i), (ii), and (iii) are collectively, the “Audited Financial Statements”), each of which are attached as Section 3.4(a) of the Company Disclosure Schedules. Each of the The Audited Financial Statements (including the notes thereto) (Ai) was were prepared in accordance with GAAP applied on a consistent basis throughout the periods indicated (except as may be specifically indicated in the notes thereto), (Bii) fairly presentspresent, in all material respects, the financial position, results of operations operations, convertible preferred stock and stockholders’ deficit and cash flows of the Group Companies (on a consolidated basis) as at the date thereof and for the period indicated therein, except as otherwise specifically noted therein, and (C) in the case of the Financial Statements included in clause (iii) only, were prepared audited in accordance with the standards of the PCAOBAmerican Institute of Certified Public Accountants and contain an unqualified report of the Group Companies’ auditor, and (iv) comply in all material respects with the applicable accounting requirements and with the rules and regulations of the SEC, the Exchange Act and the Securities Act in effect as of the respective dates thereof (including Regulation S-X or Regulation S-K, as applicable)) in effect as of the date of this Agreement and the respective dates thereof and (v) were prepared from and accurately reflect the books and records of the Group Companies.
(b) The audited consolidated balance sheets of the Group Companies as of December 31, 2019 and December 31, 2020, and the related audited consolidated statements of operations and comprehensive loss, convertible preferred stock and stockholders’ deficit and cash flows of the Group Companies for each of the periods then ended (the “Closing Required Company Audited Financial Statements”), when delivered following the date of this Agreement in accordance with Section 5.175.19, (i) will be prepared in accordance with GAAP applied on a consistent basis throughout the periods indicated (except as may be specifically indicated in the notes thereto) and subject, in the case of any unaudited financial statements, to the absence of footnotes and year-end audit adjustments (none of which are individually or in the aggregate material), (ii) will fairly present, in all material respects, the financial position, results of operations operations, convertible preferred stock and stockholders’ deficit and cash flows of the Group Companies as at the date thereof and for the period indicated therein, except as otherwise specifically noted thereinsubject, in the case of any unaudited financial statements, to the absence of footnotes and year-end audit adjustments (none of which are, individually or in the aggregate, material), (iii) in the case of any audited financial statements, will be audited in accordance with the standards of the PCAOB by a PCAOB qualified auditor that was independent under Rule 2-01 of Regulation S-X under the Securities Act and will contain an unqualified report of the Company’s auditorsGroup Companies’ auditor, and (iv) will comply in all material respects with the applicable accounting requirements and with the rules and regulations of the SEC, the Exchange Act and the Securities Act in effect as of the respective dates thereof (including Regulation S-X or Regulation S-K, as applicable)) in effect as of the respective dates of delivery, at the time of filing of the Registration Statement / Proxy Statement and at the time of effectiveness of the Registration Statement / Proxy Statement and (v) will be prepared from and accurately reflect the books and records of the Group Companies.
(c) Except (i) as set forth on the face of the Latest Balance Sheet, (ii) for Liabilities incurred in the ordinary course of business since the date of the Latest Balance Sheet Date (none of which is are Liabilities directly or indirectly related to a Liability for breach of contractContract, breach of warranty, tort, infringement infringement, Proceeding or violation of of, or non-compliance with, Law), (iii) for Liabilities incurred in connection with the negotiation, preparation or execution of this Agreement or any Ancillary Documents, the performance by the Company of their respective its covenants or agreements in this Agreement or any Ancillary Document to which it is or will be a party or the consummation of the transactions contemplated hereby or thereby thereby, (iv) executory obligations under Material Contracts (excluding any Liabilities related to a breach of a Material Contract), (v) as disclosed on Section 5.1 of the Company Disclosure Schedules and (ivvi) for Liabilities that are not and would not reasonably be expected to be, individually or in the aggregate, material to the Group Companies, taken as a whole, no Group Company has any Liabilities of the type required to be set forth on a balance sheet in accordance with GAAPLiabilities.
(d) The Group Companies have established and maintain systems of internal accounting controls that are designed to provide, in all material respects, reasonable assurance that (i) that all transactions are executed in accordance with management’s authorization and authorization, (ii) that all transactions are recorded as necessary to permit preparation of proper and accurate financial statements in accordance with GAAP and to maintain accountability for the Group Companies’ assets and (iii) regarding prevention or timely detection of the unauthorized acquisition, use or disposition of the Group Company’s properties or assets. The Group Companies maintain and, for all periods covered by the Required Company Financial Statements, have maintained books and records of the Group Companies in the ordinary course of business that are accurate and complete and reflect the revenues, expenses, assets and liabilities of the Group Companies in all material respects.
(e) Except as set forth in Section 3.4(e) of Since the Company Disclosure Schedule, since the incorporation of the CompanyLookback Date, no Group Company has received any written complaint, allegation, assertion or claim that there is (i) “significant deficiency” in the internal controls over financial reporting of the Group CompaniesCompanies to the Company’s knowledge, (ii) a “material weakness” in the internal controls over financial reporting of the Group Companies to the Company’s knowledge, or (iii) fraud, whether or not material, that involves management or other employees of the Group Companies who have a significant role in the internal controls over financial reporting of the Group Companies.
(f) As of the date hereof, each Group Company is Solvent. Assuming (a) the truth and accuracy of the representations and warranties of the ARYA Parties set forth in Article 4, (b) compliance by the ARYA Parties with their covenants and agreements set forth in this Agreement, (c) compliance by the ARYA Parties and the PIPE Investors with the terms of the PIPE Subscription Agreements, (d) compliance by the Convertible Security Investors with the Convertible Security Subscription Agreement and (e) compliance by the Perceptive Investor with the terms of the 2024 Bridge Financing Agreement, upon and immediately after the consummation of the Closing, each of the Group Companies will be Solvent.
Appears in 2 contracts
Sources: Business Combination Agreement (Adagio Medical Holdings, Inc.), Business Combination Agreement (ARYA Sciences Acquisition Corp IV)
Financial Statements; Undisclosed Liabilities. (a) The Company has made available to HighCape CBRG a true and complete copy of (ithe following financial statements, which are attached as Section 3.4(a) of the Company Disclosure Schedules: audited consolidated balance sheets of the Group Companies as of December 31, 20192023 (the “Latest Balance Sheet”) and December 31, 2022 and the related audited consolidated statements of operations and comprehensive loss, convertible preferred stock and stockholders’ deficit and cash flows of the Group Companies for each of the periods years then ended, (ii) the unaudited consolidated balance sheets of the Group Companies as of December 31, 2020, and the related unaudited consolidated statements of operations and comprehensive loss, convertible preferred stock and stockholders’ deficit and cash flows of the Group Companies for the twelve (12)-month period then ended, and (iii) the unaudited consolidated balance sheets of the Group Companies as of December 31, 2019 and December 31, 2020 ended (the “Latest Balance Sheet”) and the related unaudited consolidated statements of operations and comprehensive loss, convertible preferred stock and stockholders’ deficit and cash flows of the Group Companies for each of the periods then ended (clauses (i), (ii), and (iii) are collectively, the “Audited Financial Statements”), each of which are attached as Section 3.4(a) of the Company Disclosure Schedules. Each of the The Audited Financial Statements (including the notes thereto) (Ai) was were prepared in accordance with GAAP applied on a consistent basis throughout the periods indicated (except as may be specifically indicated in the notes thereto), (Bii) fairly presentspresent, in all material respects, the financial position, results of operations operations, convertible preferred stock and stockholders’ deficit and cash flows of the Group Companies (on a consolidated basis) as at the date thereof and for the period indicated therein, except as otherwise specifically noted therein, and (C) in the case of the Financial Statements included in clause (iii) only, were prepared audited in accordance with the standards of the PCAOBAmerican Institute of Certified Public Accountants and contain an unqualified report of the Group Companies’ auditor, and (iv) comply in all material respects with the applicable accounting requirements and with the rules and regulations of the SEC, the Exchange Act and the Securities Act in effect as of the respective dates thereof (including Regulation S-X or Regulation S-K, as applicable)) in effect as of the date of this Agreement and the respective dates thereof and (v) were prepared from and accurately reflect the books and records of the Group Companies.
(b) The audited consolidated balance sheets of the Group Companies as of December 31, 2019 and December 31, 2020, and the related audited consolidated statements of operations and comprehensive loss, convertible preferred stock and stockholders’ deficit and cash flows of the Group Companies for each of the periods then ended (the “Closing Required Company Audited Financial Statements”), when delivered following the date of this Agreement in accordance with Section 5.175.19, (i) will be prepared in accordance with GAAP applied on a consistent basis throughout the periods indicated (except as may be specifically indicated in the notes thereto) and subject, in the case of any unaudited financial statements, to the absence of footnotes and year-end audit adjustments (none of which are individually or in the aggregate material), (ii) will fairly present, in all material respects, the financial position, results of operations operations, convertible preferred stock and stockholders’ deficit and cash flows of the Group Companies as at the date thereof and for the period indicated therein, except as otherwise specifically noted thereinsubject, in the case of any unaudited financial statements, to the absence of footnotes and year-end audit adjustments (none of which are, individually or in the aggregate, material), (iii) in the case of any audited financial statements, will be audited in accordance with the standards of the PCAOB by a PCAOB qualified auditor that was independent under Rule 2-01 of Regulation S-X under the Securities Act and will contain an unqualified report of the Company’s auditorsGroup Companies’ auditor, and (iv) will comply in all material respects with the applicable accounting requirements and with the rules and regulations of the SEC, the Exchange Act and the Securities Act in effect as of the respective dates thereof (including Regulation S-X or Regulation S-K, as applicable)) in effect as of the respective dates of delivery, at the time of filing of the Registration Statement/Proxy Statement and at the time of effectiveness of the Registration Statement/Proxy Statement and (v) will be prepared from and accurately reflect the books and records of the Group Companies.
(c) Except (i) as set forth on the face of the Latest Balance Sheet, (ii) for Liabilities incurred in the ordinary course of business since the date of the Latest Balance Sheet Date (none of which is are Liabilities directly or indirectly related to a Liability for breach of contractContract, breach of warranty, tort, infringement infringement, Proceeding or violation of of, or non-compliance with, Law), (iii) for Liabilities incurred in connection with the negotiation, preparation or execution of this Agreement or any Ancillary Documents, the performance by the Company of their respective its covenants or agreements in this Agreement or any Ancillary Document to which it is or will be a party or the consummation of the transactions contemplated hereby or thereby thereby, (iv) executory obligations under Material Contracts (excluding any Liabilities related to a breach of a Material Contract), (v) as disclosed on Section 5.1 of the Company Disclosure Schedules and (ivvi) for Liabilities that are not and would not reasonably be expected to be, individually or in the aggregate, material to the Group Companies, taken as a whole, no Group Company has any Liabilities of the type required to be set forth on a balance sheet in accordance with GAAPLiabilities.
(d) The Group Companies have established and maintain systems of internal accounting controls that are designed to provide, in all material respects, reasonable assurance that (i) that all transactions are executed in accordance with management’s authorization and authorization, (ii) that all transactions are recorded as necessary to permit preparation of proper and accurate financial statements in accordance with GAAP and to maintain accountability for the Group Companies’ assets and (iii) regarding prevention or timely detection of the unauthorized acquisition, use or disposition of the Group Company’s properties or assets. The Group Companies maintain and, for all periods covered by the Required Company Financial Statements, have maintained books and records of the Group Companies in the ordinary course of business that are accurate and complete and reflect the revenues, expenses, assets and liabilities of the Group Companies in all material respects.
(e) Except Since the Lookback Date, except as set forth listed in Section 3.4(e) of the Company Disclosure Schedule, since the incorporation of the CompanySchedules, no Group Company has received any written complaint, allegation, assertion or claim that there is (i) “significant deficiency” in the internal controls over financial reporting of the Group CompaniesCompanies to the Company’s knowledge, (ii) a “material weakness” in the internal controls over financial reporting of the Group Companies to the Company’s knowledge, or (iii) fraud, whether or not material, that involves management or other employees of the Group Companies who have a significant role in the internal controls over financial reporting of the Group Companies.
(f) As of the date hereof, each Group Company is Solvent. Assuming (a) the truth and accuracy of the representations and warranties of the CBRG Parties set forth in Article 4, (b) compliance by the CBRG Parties with their covenants and agreements set forth in this Agreement, (c) compliance by the Financing Investors with the terms of the Financing Agreement, upon and immediately after the consummation of the Closing, each of the Group Companies will be Solvent.
Appears in 2 contracts
Sources: Business Combination Agreement (Chain Bridge I), Business Combination Agreement (Alterola Biotech Inc.)
Financial Statements; Undisclosed Liabilities. (a) The Company has made available to HighCape a true and complete copy of (iSection 3.05(a) the audited consolidated balance sheets of the Group Companies as of December 31, 2019, Seller Letter sets forth complete and the related audited consolidated statements of operations and comprehensive loss, convertible preferred stock and stockholders’ deficit and cash flows correct copies of the Group Companies for each of the periods then ended, following financial statements (ii) the unaudited consolidated balance sheets of the Group Companies as of December 31, 2020, and the related unaudited consolidated statements of operations and comprehensive loss, convertible preferred stock and stockholders’ deficit and cash flows of the Group Companies for the twelve (12)-month period then ended, and (iii) the unaudited consolidated balance sheets of the Group Companies as of December 31, 2019 and December 31, 2020 (the “Latest Balance Sheet”) and the related unaudited consolidated statements of operations and comprehensive loss, convertible preferred stock and stockholders’ deficit and cash flows of the Group Companies for each of the periods then ended (clauses (i), (ii), and (iii) are collectively, the “Financial Statements”): (i) the unaudited combined consolidated balance sheets of the Transferred Entities as of September 30, 2007 (the “Unaudited Financial Statements”), each and the related unaudited combined statements of which are attached as Section 3.4(a) of operations, parent funding and cash flows for the Company Disclosure Schedules. Each of the Financial Statements fiscal year then ended (including the notes contained therein or annexed thereto) and (ii) the unaudited condensed consolidated statements of operations, balance sheets and business unit cash flows of the Transferred Entities as of March 30, 2008, and the related unaudited combined statement of operations, parent funding and cash flows for the six month period then ended and for the corresponding period of the prior year (the financial statements described in this clause (ii) are collectively referred to as the “Interim Financial Statements”). The Financial Statements have been prepared in conformity with GAAP as consistently applied with the past accounting practices used in the preparation of the unaudited internal financial statements of the Transferred Entities for the year ended December 31, 2006 and previous periods during 2007 (except in each case as described in any notes thereto) and fairly present in all material respects (subject to, in the case of the Interim Financial Statements, (A) was prepared in accordance with GAAP applied on a consistent basis throughout the periods indicated (except as may normal, recurring year-end audit adjustments, which adjustments will be indicated immaterial, individually or in the notes thereto)aggregate, and (B) fairly presentsthe absence of footnotes) the combined consolidated financial condition, in all material respectsassets, the financial positionliabilities, results of operations and cash flows of the Group Companies Transferred Entities as at of the date dates thereof and for the period indicated therein, except as otherwise specifically noted therein, and (C) in periods indicated. The monthly financial statements to be provided to the case of the Financial Statements included in clause (iii) only, were prepared in accordance with the standards of the PCAOB, and comply in all material respects with the applicable accounting requirements and with the rules and regulations of the SEC, the Exchange Act and the Securities Act in effect as of the respective dates thereof (including Regulation S-X or Regulation S-K, as applicable).
(b) The audited consolidated balance sheets of the Group Companies as of December 31, 2019 and December 31, 2020, and the related audited consolidated statements of operations and comprehensive loss, convertible preferred stock and stockholders’ deficit and cash flows of the Group Companies for each of the periods then ended (the “Closing Company Audited Financial Statements”), when delivered following the date of this Agreement in accordance with Purchaser pursuant to Section 5.17, (i) will 5.12 shall be prepared in accordance with GAAP applied on a consistent basis throughout the periods indicated (except as may be indicated in the notes thereto), (ii) will and fairly present, present in all material respectsrespects (subject to (A) normal, recurring year-end audit adjustments, which adjustments will be immaterial, individually or in the aggregate and (B) the absence of footnotes) the combined consolidated financial positioncondition, assets, liabilities, results of operations and cash flows of the Group Companies Transferred Entities as at of the date dates thereof and for the period indicated therein, except as otherwise specifically noted therein, (iii) will be audited in accordance with the standards of the PCAOB and will contain an unqualified report of the Company’s auditors, and (iv) will comply in all material respects with the applicable accounting requirements and with the rules and regulations of the SEC, the Exchange Act and the Securities Act in effect as of the respective dates thereof (including Regulation S-X or Regulation S-K, as applicable)periods indicated.
(cb) Except No Transferred Entity has any liability or obligation of any nature (whether accrued, absolute, contingent, unasserted or otherwise), except (i) as set forth disclosed or reserved against on the face balance sheet contained in the Interim Financial Statements (excluding the notes thereto) or disclosed in Section 3.05(b) of the Latest Balance SheetSeller Letter, (ii) for Liabilities liabilities and obligations incurred in the ordinary course of business since the Latest Balance Sheet Date (none date of which is a Liability for breach of contract, breach of warranty, tort, infringement or violation of Law), the balance sheet contained in the Interim Financial Statements and (iii) for Liabilities incurred in connection with the negotiation, preparation or execution of this Agreement or any Ancillary Documents, the performance of their respective covenants or agreements in this Agreement or any Ancillary Document or the consummation of the transactions contemplated hereby or thereby liabilities and (iv) for Liabilities that are not and would not reasonably be expected to beobligations that, individually or and in the aggregate, material are not reasonably likely to the Group Companies, taken as a whole, no Group Company has any Liabilities of the type required to be set forth on a balance sheet in accordance with GAAP.
(d) The Group Companies have established and maintain systems of internal accounting controls that are designed to provide, in all material respects, reasonable assurance that (i) all transactions are executed in accordance with management’s authorization and (ii) all transactions are recorded as necessary to permit preparation of proper and accurate financial statements in accordance with GAAP and to maintain accountability for the Group Companies’ assets. The Group Companies maintain and, for all periods covered by the Financial Statements, have maintained books and records of the Group Companies in the ordinary course of business that are accurate and complete and reflect the revenues, expenses, assets and liabilities of the Group Companies in all material respects.
(e) Except as set forth in Section 3.4(e) of the Company Disclosure Schedule, since the incorporation of the Company, no Group Company has received any written complaint, allegation, assertion or claim that there is (i) “significant deficiency” in the internal controls over financial reporting of the Group Companies, (ii) a “material weakness” in the internal controls over financial reporting of the Group Companies or (iii) fraud, whether or not material, that involves management or other employees of the Group Companies who have a significant role in material adverse effect on the internal controls over financial reporting of the Group CompaniesBusiness.
Appears in 2 contracts
Sources: Purchase Agreement (Spectrum Brands, Inc.), Purchase Agreement (Salton Inc)
Financial Statements; Undisclosed Liabilities. (a) The Company has made available to HighCape a true Schedule 2.8 sets forth (A) the unaudited consolidated balance sheets of each of the Companies as of September 30, 1999 (collectively, the "Balance Sheets"), and complete copy the unaudited consolidated statements of income of each of the Companies for the 9 month period ended September 30, 1999, and (iB) the audited consolidated balance sheets of the Group Companies Omni UK as of December 31, 20191998, and the related audited consolidated statements of operations and comprehensive loss, convertible preferred stock and stockholders’ deficit and cash flows income of Omni UK for the Group Companies for each of the periods then ended, (ii) the unaudited consolidated balance sheets of the Group Companies as of period April to December 31, 2020, and the related unaudited consolidated statements of operations and comprehensive loss, convertible preferred stock and stockholders’ deficit and cash flows of the Group Companies for the twelve (12)-month period then ended, and (iii) the unaudited consolidated balance sheets of the Group Companies as of December 31, 2019 and December 31, 2020 (the “Latest Balance Sheet”) and the related unaudited consolidated statements of operations and comprehensive loss, convertible preferred stock and stockholders’ deficit and cash flows of the Group Companies for each of the periods then ended (clauses (i)1998, (ii), and (iii) are collectivelyfor Omni UK, the “Financial Statements”), each of which are attached as Section 3.4(a) of the Company Disclosure Schedules. Each of the Financial Statements (including the notes thereto) financial statements described in clauses (A) was prepared and (B) above, together with the notes to such financial statements, are collectively referred to herein as the "Financial Statements"). The Financial Statements are in all material respects in accordance with GAAP the respective books and records of the Companies and have been prepared in conformity with generally accepted accounting principles applying in the country or state of incorporation consistently applied on a consistent basis throughout the periods indicated (except in each case as may be indicated described in the notes thereto), (B) and on that basis fairly presents, present in all material respectsrespects (subject, the financial position, results of operations and cash flows of the Group Companies as at the date thereof and for the period indicated therein, except as otherwise specifically noted therein, and (C) in the case of the Financial Statements included unaudited statements referred to in clause (iiiA) onlyabove, were prepared in accordance with to normal, recurring year-end adjustments) the standards financial condition and results of the PCAOB, operations of Omni UK and comply in all material respects with the applicable accounting requirements and with the rules and regulations of the SEC, the Exchange Act and the Securities Act in effect its Subsidiaries as of the respective dates thereof (including Regulation S-X or Regulation S-K, as applicable)and for the respective periods indicated.
(b) The audited consolidated balance sheets Neither of the Group Companies as nor any of December 31their respective Subsidiaries have any liabilities or obligations of any nature (whether accrued, 2019 and December 31absolute, 2020contingent, and the related audited consolidated statements of operations and comprehensive loss, convertible preferred stock and stockholders’ deficit and cash flows of the Group Companies for each of the periods then ended (the “Closing Company Audited Financial Statements”threatened or otherwise), when delivered following except (A) as disclosed, reflected or reserved against in the date of this Agreement in accordance with Section 5.17, (i) will be prepared in accordance with GAAP applied on a consistent basis throughout the periods indicated (except as may be indicated in respective Balance Sheets and the notes thereto), (iiB) will fairly present, in all material respects, the financial position, results of operations and cash flows of the Group Companies as at the date thereof and for the period indicated therein, except as otherwise specifically noted therein, (iii) will be audited in accordance with the standards of the PCAOB and will contain an unqualified report of the Company’s auditors, and (iv) will comply in all material respects with the applicable accounting requirements and with the rules and regulations of the SEC, the Exchange Act and the Securities Act in effect as of the respective dates thereof (including Regulation S-X or Regulation S-K, as applicable).
(c) Except (i) as items set forth on the face of the Latest Balance SheetSchedule 2.8, (iiC) for Liabilities liabilities and obligations incurred in the ordinary course of business consistent with past practice since the Latest Balance Sheet Date (none of which is a Liability for breach of contract, breach of warranty, tort, infringement or violation of Law), (iii) for Liabilities incurred in connection with the negotiation, preparation or execution of this Agreement or any Ancillary Documents, the performance of their respective covenants or agreements in this Agreement or any Ancillary Document or the consummation date of the transactions contemplated hereby or thereby and (iv) for Liabilities respective Balance Sheets that are not and would not reasonably be expected to benot, individually or in the aggregate, material to the Group Companies, taken as result in a whole, no Group Company has any Liabilities of the type required to be set forth on a balance sheet in accordance with GAAP.
(d) The Group Companies have established and maintain systems of internal accounting controls that are designed to provide, in all material respects, reasonable assurance that (i) all transactions are executed in accordance with management’s authorization Material Adverse Effect and (ii) all transactions are recorded as necessary to permit preparation of proper and accurate financial statements in accordance with GAAP and to maintain accountability for the Group Companies’ assets. The Group Companies maintain and, for all periods covered by the Financial Statements, have maintained books and records of the Group Companies in the ordinary course of business that are accurate and complete and reflect the revenues, expenses, assets and liabilities of the Group Companies in all material respects.
(e) Except as set forth in Section 3.4(e) of the Company Disclosure Schedule, since the incorporation of the Company, no Group Company has received any written complaint, allegation, assertion or claim that there is (i) “significant deficiency” in the internal controls over financial reporting of the Group Companies, (ii) a “material weakness” in the internal controls over financial reporting of the Group Companies or (iii) fraud, whether or not material, that involves management or other employees of the Group Companies who have a significant role in the internal controls over financial reporting of the Group Companies.D)
Appears in 2 contracts
Sources: Stock Purchase Agreement (Vantas Inc), Stock Purchase Agreement (Reckson Services Industries Inc)
Financial Statements; Undisclosed Liabilities. (a) The Company Buyer has made available previously delivered to HighCape a true and complete copy Seller copies of (i) the audited consolidated balance sheets of the Group Companies Buyer as of December 31, 2019June 30th for the fiscal years 1996 and 1997, and the related audited consolidated statements of operations and comprehensive lossincome, convertible preferred stock and stockholders’ deficit changes in shareholders' equity and cash flows for the fiscal years 1995, 1996 and 1997, inclusive, in each case accompanied by the audit report of the Group Companies for each of the periods then endedDeloitte & Touche LLP, independent public accountants with respect to Buyer, and (ii) the unaudited interim consolidated balance sheets sheet and related statement of the Group Companies as of December 31income, 2020, and the related unaudited consolidated statements of operations and comprehensive loss, convertible preferred stock and stockholders’ deficit changes in shareholders' equity and cash flows of the Group Companies Buyer at or for the twelve period ending September 30, 1997 (12)-month period then ended, and (iii) the unaudited consolidated balance sheets of the Group Companies as of December 31, 2019 and December 31, 2020 (the “Latest Balance Sheet”) and the related unaudited consolidated statements of operations and comprehensive loss, convertible preferred stock and stockholders’ deficit and cash flows of the Group Companies for each of the periods then ended (clauses (i), (ii), and (iii) are collectively, the “balance sheets and statements referred to above being referred to as the "Buyer Financial Statements”", and the audited balance sheet as of June 30, 1997 being referred to as the "Buyer Balance Sheet"), each of which are attached as Section 3.4(a) of . The balance sheets referred to in the Company Disclosure Schedules. Each of the Financial Statements previous sentence (including the notes theretorelated notes, where applicable) (Apresent fairly the consolidated financial position of Buyer and the Buyer Subsidiaries as of the dates thereof, and the other financial statements referred to in this Section 5.4(a) was prepared in accordance with GAAP applied on a consistent basis throughout the periods indicated present fairly (except as may be indicated for (i) the omission of notes to unaudited statements and (ii) year-end adjustments to interim results normal in nature and amount) the notes thereto), (B) fairly presents, in all material respects, the financial position, consolidated results of operations and cash flows of Buyer and the Group Companies as at the date thereof and Buyer Subsidiaries for the period indicated thereinrespective fiscal periods therein set forth; each of such balance sheets and statements (including the related notes, except as otherwise specifically noted therein, and (Cwhere applicable) in the case of the Financial Statements included in clause (iii) only, were prepared in accordance with the standards of the PCAOB, and comply in all material respects with the applicable accounting requirements with respect thereto; and each of such balance sheets and statements (including the related notes, where applicable) has been prepared in accordance with GAAP consistently applied during the periods involved (except as indicated in the notes thereto) and in accordance with the rules books and regulations records of the SEC, the Exchange Act Buyer and the Securities Act Buyer Subsidiaries, which books and records are complete and accurate in effect as of the respective dates thereof (including Regulation S-X or Regulation S-K, as applicable)all material respects and have been maintained in all material respects in accordance with Applicable Law.
(b) The audited consolidated balance sheets of the Group Companies as of December 31, 2019 and December 31, 2020, and the related audited consolidated statements of operations and comprehensive loss, convertible preferred stock and stockholders’ deficit and cash flows of the Group Companies Except for each of the periods then ended (the “Closing Company Audited Financial Statements”), when delivered following the date of this Agreement in accordance with Section 5.17, (i) will be prepared in accordance with GAAP applied those liabilities that are fully reflected or reserved against on a consistent basis throughout the periods indicated (except as may be indicated in the notes thereto), Buyer Balance Sheet and (ii) will fairly present, in all material respects, the financial position, results of operations and cash flows of the Group Companies as at the date thereof and for the period indicated therein, except as otherwise specifically noted therein, (iii) will be audited in accordance with the standards of the PCAOB and will contain an unqualified report of the Company’s auditors, and (iv) will comply in all material respects with the applicable accounting requirements and with the rules and regulations of the SEC, the Exchange Act and the Securities Act in effect as of the respective dates thereof (including Regulation S-X or Regulation S-K, as applicable).
(c) Except (i) as set forth on the face of the Latest Balance Sheet, (ii) for Liabilities liabilities incurred in the ordinary course of business since the Latest date of the Buyer Balance Sheet Date (none of and which is a Liability for breach of contract, breach of warranty, tort, infringement or violation of Law), (iii) for Liabilities incurred in connection with the negotiation, preparation or execution of this Agreement or any Ancillary Documents, the performance of their respective covenants or agreements in this Agreement or any Ancillary Document or the consummation of the transactions contemplated hereby or thereby and (iv) for Liabilities that are not and would not reasonably be expected to behave, individually or in the aggregate, material a Buyer Material Adverse Effect, Buyer has no liabilities or obligations of any nature, whether absolute, accrued, contingent or otherwise and whether due or to the Group Companiesbecome due, taken as a whole, no Group Company has in any Liabilities of the type case which are or required by GAAP to be set forth shown on a consolidated balance sheet in accordance with GAAPof Buyer.
(d) The Group Companies have established and maintain systems of internal accounting controls that are designed to provide, in all material respects, reasonable assurance that (i) all transactions are executed in accordance with management’s authorization and (ii) all transactions are recorded as necessary to permit preparation of proper and accurate financial statements in accordance with GAAP and to maintain accountability for the Group Companies’ assets. The Group Companies maintain and, for all periods covered by the Financial Statements, have maintained books and records of the Group Companies in the ordinary course of business that are accurate and complete and reflect the revenues, expenses, assets and liabilities of the Group Companies in all material respects.
(e) Except as set forth in Section 3.4(e) of the Company Disclosure Schedule, since the incorporation of the Company, no Group Company has received any written complaint, allegation, assertion or claim that there is (i) “significant deficiency” in the internal controls over financial reporting of the Group Companies, (ii) a “material weakness” in the internal controls over financial reporting of the Group Companies or (iii) fraud, whether or not material, that involves management or other employees of the Group Companies who have a significant role in the internal controls over financial reporting of the Group Companies.
Appears in 2 contracts
Sources: Stock Purchase Agreement (Commercial Federal Corp), Stock Purchase Agreement (Commercial Federal Corp)
Financial Statements; Undisclosed Liabilities. (a) The Company has made available to HighCape a SEC Reports contain true and complete copy copies of the combined financial statements of PAPI consisting of (i) the audited consolidated combined balance sheets of the Group Companies PAPI as of December 31, 20192007 and 2008, and the related audited consolidated combined statements of operations income and comprehensive loss, convertible preferred stock and stockholders’ deficit stockholder’s equity and cash flows of for the Group Companies for each of years then ended (including the periods then endednotes or other supplementary information thereto) (collectively, the “Year-End Financial Statements”) and (ii) the an unaudited consolidated balance sheets sheet of the Group Companies PAPI as of December 31September 30, 2020, and the related unaudited consolidated statements of operations and comprehensive loss, convertible preferred stock and stockholders’ deficit and cash flows of the Group Companies for the twelve (12)-month period then ended, and (iii) the unaudited consolidated balance sheets of the Group Companies as of December 31, 2019 and December 31, 2020 2009 (the “Latest Balance Sheet”) ), and the related unaudited consolidated combined statements of operations and comprehensive loss, convertible preferred stock income and stockholders’ deficit equity and cash flows of for the Group Companies for each of the periods nine-month period then ended (clauses (i)the “Interim Financial Statements,” and, (ii), and (iii) are collectivelycollectively with the Year-End Financial Statements, the “Financial Statements”), each of which are attached as Section 3.4(a.
(b) of the Company Disclosure Schedules. Each of the Financial Statements (including the notes or other supplementary information thereto) (Ai) was has been prepared in accordance with GAAP applied on a consistent basis throughout the periods indicated involved and (except as may be indicated in the notes thereto), (Bii) fairly presentspresent fairly, in all material respects, the financial position, results position of operations and cash flows of the Group Companies as at the date thereof and for the period indicated therein, except as otherwise specifically noted therein, and (C) in the case of the Financial Statements included in clause (iii) only, were prepared in accordance with the standards of the PCAOB, and comply in all material respects with the applicable accounting requirements and with the rules and regulations of the SEC, the Exchange Act and the Securities Act in effect PAPI as of the respective dates thereof (including Regulation S-X or Regulation S-K, as applicable).
(b) The audited consolidated balance sheets of the Group Companies as of December 31, 2019 and December 31, 2020, and the related audited consolidated statements results of each such entity’s operations and comprehensive loss, convertible preferred stock and stockholders’ deficit and cash flows for the periods indicated, subject, however, in the case of the Group Companies for each of the periods then ended (the “Closing Company Audited Interim Financial Statements”), when delivered following to normal year-end audit adjustments and to the date absence of this Agreement notes and other textual disclosure required by GAAP. The books and records of PAPI have been and are being maintained in all material respects in accordance with Section 5.17, (i) will be prepared applicable legal and accounting requirements to permit preparation of the financial statements in accordance with GAAP applied on a consistent basis throughout the periods indicated (except as may be indicated in the notes thereto), (ii) will fairly present, in all material respects, the financial position, results of operations and cash flows of the Group Companies as at the date thereof and for the period indicated therein, except as otherwise specifically noted therein, (iii) will be audited in accordance with the standards of the PCAOB and will contain an unqualified report of the Company’s auditors, and (iv) will comply in all material respects with the applicable accounting requirements and with the rules and regulations of the SEC, the Exchange Act and the Securities Act in effect as of the respective dates thereof (including Regulation S-X or Regulation S-K, as applicable)to maintain asset accountability.
(c) Except No PAPI Party has any liability (and, to the PAPI Parties’ Knowledge, there is no reasonable basis for any action, suit, proceeding, hearing, investigation, charge, complaint, claim or demand against a PAPI Party or any of their respective Subsidiaries giving rise to any liability), other than (i) as set forth liabilities reserved or disclosed on the face of the Latest Balance Sheet, (ii) for Liabilities incurred liabilities which have arisen after the date of Latest Balance Sheet in the ordinary course of business since of the Latest Balance Sheet Date PAPI (none of which results from, arises out of, relates to, is a Liability for in the nature of or was caused by any breach of contract, breach of warranty, tort, infringement or violation of LawLaws), (iii) for Liabilities incurred liabilities which have been discharged or paid in connection with full after the negotiation, preparation or execution of this Agreement or any Ancillary Documents, the performance of their respective covenants or agreements in this Agreement or any Ancillary Document or the consummation date of the transactions contemplated hereby or thereby and (iv) for Liabilities that are not and would not reasonably be expected to be, individually or in the aggregate, material to the Group Companies, taken as a whole, no Group Company has any Liabilities of the type required to be set forth on a balance sheet in accordance with GAAP.
(d) The Group Companies have established and maintain systems of internal accounting controls that are designed to provide, in all material respects, reasonable assurance that (i) all transactions are executed in accordance with management’s authorization and (ii) all transactions are recorded as necessary to permit preparation of proper and accurate financial statements in accordance with GAAP and to maintain accountability for the Group Companies’ assets. The Group Companies maintain and, for all periods covered by the Financial Statements, have maintained books and records of the Group Companies Latest Balance Sheet in the ordinary course of business of PAPI (none of which results from, arises out of, relates to, is in the nature of or was caused by any breach of contract, breach of warranty, tort, infringement or violation of Laws) or (iv) liabilities that are accurate and complete and reflect obligations to perform pursuant to the revenues, expenses, assets and liabilities terms of any Contract binding on the Group Companies in all material respectsPAPI Parties or any of their respective Subsidiaries.
(e) Except as set forth in Section 3.4(e) of the Company Disclosure Schedule, since the incorporation of the Company, no Group Company has received any written complaint, allegation, assertion or claim that there is (i) “significant deficiency” in the internal controls over financial reporting of the Group Companies, (ii) a “material weakness” in the internal controls over financial reporting of the Group Companies or (iii) fraud, whether or not material, that involves management or other employees of the Group Companies who have a significant role in the internal controls over financial reporting of the Group Companies.
Appears in 2 contracts
Sources: Purchase and Sale Agreement (Pacific Asia Petroleum Inc), Purchase and Sale Agreement
Financial Statements; Undisclosed Liabilities. (a) The Company has made available to HighCape a true A true, correct and complete copy of (i) the audited consolidated balance sheets of the Group Companies as of December 31, 2019, and the related audited consolidated statements of operations and comprehensive loss, convertible preferred stock and stockholders’ deficit and cash flows of the Group Companies for each of the periods then ended, (ii) the unaudited consolidated balance sheets of the Group Companies as of December 31, 2020, and the related unaudited consolidated statements of operations and comprehensive loss, convertible preferred stock and stockholders’ deficit and cash flows of the Group Companies for the twelve (12)-month period then ended, and (iii) the unaudited consolidated balance sheets of the Group Companies as of December 31, 2019 and December 31, 2020 (the “Latest Balance Sheet”) and the related unaudited consolidated statements of operations and comprehensive loss, convertible preferred stock and stockholders’ deficit and cash flows of the Group Companies for each of the periods then ended (clauses (i2004 Financial Statements is set forth on Schedule 5.5(a), (ii), and (iii) are collectively, the “Financial Statements”), each of which are attached as Section 3.4(a) of the Company Disclosure Schedules. Each of the The 2004 Financial Statements (including the notes thereto) (A) was have been prepared in accordance with GAAP consistently applied on a consistent basis throughout the periods indicated (except as may be indicated in the notes thereto), and (B) present fairly presents, in all material respects, respects the financial position, assets and liabilities of each of the Non-Fund Entities as of the date thereof and the results of operations operations, revenues, expenses and cash flows of the Group Companies as at the date thereof and each Non-Fund Entity for the period indicated thereinrespective periods covered thereby.
(b) A true, except as otherwise specifically noted therein, correct and (C) in the case complete copy of the Interim Financial Statements included in clause is set forth on Schedule 5.5(b). The Interim Financial Statements (iiii) only, were have been prepared in accordance with the standards internal financial reporting policies of the PCAOB, Non-Fund Entities consistent with past practice and comply (ii) present fairly in all material respects with the applicable accounting requirements financial position, assets and with the rules and regulations liabilities of the SEC, the Exchange Act and the Securities Act in effect each Non-Fund Entity as of the respective dates thereof (including Regulation S-X or Regulation S-K, as applicable).
(b) The audited consolidated balance sheets of the Group Companies as of December 31, 2019 and December 31, 2020, and the related audited consolidated statements results of operations and comprehensive lossoperations, convertible preferred stock and stockholders’ deficit revenues, expenses and cash flows of each Non-Fund Entity for the Group Companies for each of respective periods covered thereby.
(c) Once delivered pursuant to Section 7.15, the periods then ended 2005 Financial Statements (the “Closing Company Audited Financial Statements”), when delivered following the date of this Agreement in accordance with Section 5.17, (iA) will be have been prepared in accordance with GAAP consistently applied on a consistent basis throughout the periods indicated and (except as may be indicated in the notes thereto), (iiB) will present fairly present, in all material respects, respects the financial position, assets and liabilities of each of the Non-Fund Entities as of the date thereof and the results of operations operations, revenues, expenses and cash flows of the Group Companies as at the date thereof and each Non-Fund Entity for the period indicated therein, except as otherwise specifically noted therein, (iii) will be audited in accordance with the standards of the PCAOB and will contain an unqualified report of the Company’s auditors, and (iv) will comply in all material respects with the applicable accounting requirements and with the rules and regulations of the SEC, the Exchange Act and the Securities Act in effect as of the respective dates thereof (including Regulation S-X or Regulation S-K, as applicable).
(c) Except (i) as set forth on the face of the Latest Balance Sheet, (ii) for Liabilities incurred in the ordinary course of business since the Latest Balance Sheet Date (none of which is a Liability for breach of contract, breach of warranty, tort, infringement or violation of Law), (iii) for Liabilities incurred in connection with the negotiation, preparation or execution of this Agreement or any Ancillary Documents, the performance of their respective covenants or agreements in this Agreement or any Ancillary Document or the consummation of the transactions contemplated hereby or thereby and (iv) for Liabilities that are not and would not reasonably be expected to be, individually or in the aggregate, material to the Group Companies, taken as a whole, no Group Company has any Liabilities of the type required to be set forth on a balance sheet in accordance with GAAPperiods covered thereby.
(d) The Group Companies have established and maintain systems of internal accounting controls that Financial Statements are designed to provide(or will be, in all material respects, reasonable assurance that (ithe case of the 2005 Financial Statements) all transactions are executed in accordance with management’s authorization and (ii) all transactions are recorded as necessary to permit preparation of proper and accurate financial statements in accordance with GAAP and to maintain accountability for the Group Companies’ assets. The Group Companies maintain and, for all periods covered by the Financial Statements, have maintained books and records of the Group Companies in the ordinary course of business Non-Fund Entities, do not reflect any transactions that are accurate not bona fide transactions and complete do not contain any untrue information or disclosures of a material nature or omit any material fact necessary to make the information and reflect the revenuesdisclosures contained therein, expenses, assets and liabilities in light of the Group Companies circumstances in all material respectswhich they were made, not misleading.
(e) Except as set forth in Section 3.4(e) of the Company Disclosure Schedule, since the incorporation of the Company, no Group Company has received any written complaint, allegation, assertion or claim that there is (i) “significant deficiency” audited balance sheets included in the internal controls over financial reporting of Financial Statements, the Group CompaniesNon-Fund Entities have no liabilities, (ii) a “material weakness” debts, claims or obligations, whether accrued, absolute, contingent or otherwise, whether due or to become due, other than trade payables and accrued expenses incurred in the internal controls over financial reporting ordinary course of the Group Companies or business and consistent with past practice since December 31, 2004.
(iiif) fraud, whether or not material, that involves management or other employees of the Group Companies who have a significant role in the internal controls over financial reporting of the Group CompaniesThere is no Debt outstanding.
Appears in 2 contracts
Sources: Purchase and Sale Agreement (Refco Group Ltd., LLC), Purchase and Sale Agreement (Refco Inc.)
Financial Statements; Undisclosed Liabilities. (a) The Company has made available to HighCape a true and complete copy of Attached hereto as Schedule 4.4(a) are (i) the audited consolidated balance sheets statement of net assets acquired of the Group Companies Business as of December 31, 20192007 (the “Base Balance Sheet”), and the related audited consolidated statements statement of operations revenues and comprehensive loss, convertible preferred stock and stockholders’ deficit and cash flows direct expenses of the Group Companies Business for each of the periods year then endedended audited by an internationally recognized certified public accounting firm reasonably acceptable to Buyer, (ii) the unaudited consolidated balance sheets statement of net assets acquired of the Group Companies Business as of December 31September 30, 20202008, and the related unaudited consolidated statements statement of operations revenues and comprehensive loss, convertible preferred stock and stockholders’ deficit and cash flows direct expenses of the Group Companies Business for the twelve (12)-month period then ended, and (iii) the unaudited consolidated balance sheets of the Group Companies as of December 31, 2019 and December 31, 2020 (the “Latest Balance Sheet”) and the related unaudited consolidated statements of operations and comprehensive loss, convertible preferred stock and stockholders’ deficit and cash flows of the Group Companies for each of the periods nine months then ended (the financial statements set forth in clauses (i), ) and (ii), and (iii) are collectively, the “Financial Statements”), each of which are attached as Section 3.4(aand (iii) an unaudited schedule setting forth revenue and gross profits of the Company Disclosure Business for the two month period ended November 30, 2008 (the “Financial Schedules”). Each of the The Financial Statements (including have been reviewed by the notes thereto) (A) was prepared in accordance with GAAP applied on a consistent basis throughout the periods indicated (except as may be indicated in the notes thereto)Seller Entities’ chief financial officers and, (B) fairly presents, in all material respects, the financial position, results of operations and cash flows of the Group Companies as at the date thereof and for the period indicated therein, except as otherwise specifically noted therein, and (C) in the case of the Financial Statements included referred to in clause (iiii) onlyabove, were have been audited by the Seller Entities’ independent certified public accountants. The Financial Statements have been derived from balance sheets and income statements prepared in accordance with the standards of the PCAOB, and comply GAAP. The Financial Schedules have been derived from an income statement prepared in all material respects accordance with the applicable accounting requirements and with the rules and regulations of the SEC, the Exchange Act and the Securities Act in effect as of the respective dates thereof (including Regulation S-X or Regulation S-K, as applicable)GAAP.
(b) The audited consolidated balance sheets of the Group Companies Except as of December 31, 2019 and December 31, 2020, and the related audited consolidated statements of operations and comprehensive loss, convertible preferred stock and stockholders’ deficit and cash flows of the Group Companies for each of the periods then ended (the “Closing Company Audited Financial Statements”set forth in Schedule 4.4(b), when delivered following the date of this Agreement in accordance with Section 5.17, Financial Statements and Financial Schedules (i) will be have been derived from financial statements prepared in accordance with GAAP using the accrual method of accounting applied on a consistent basis throughout consistently during the periods indicated covered thereby (except as may be indicated that the unaudited Financial Statements and Financial Schedules do not include footnote disclosure and are subject to normal year-end audit adjustments that are not in the notes theretoaggregate material), (ii) will fairly present, are complete and correct in all material respects, respects and present fairly in all material respects the financial position, results of operations and cash flows condition of the Group Companies as Business, at the date thereof of said statements and the results of its operations for the period indicated therein, except as otherwise specifically noted thereinperiods covered thereby, (iii) will be audited in accordance contain and reflect adequate provisions for all reasonably anticipated liabilities with respect to the standards of the PCAOB and will contain an unqualified report of the Company’s auditorsperiods then ended, and (iv) will comply with respect to Material Contracts and commitments for the sale of products or other goods or services by the Seller Entities in the Business, contain and reflect adequate reserves for all material respects losses and costs and expenses in excess of expected receipts. The accounting policies, including without limitation, those policies related to revenue recognition, utilized by the Seller Entities in preparing the Seller Entities’ Financial Statements, are in conformity with the applicable accounting requirements and with the rules and regulations of the SEC, the Exchange Act and the Securities Act in effect as of the respective dates thereof (including Regulation S-X or Regulation S-K, as applicable)GAAP.
(c) Except As of the date hereof and as of the Closing Date, the Seller Entities do not and will not have any material liabilities arising from or relating to the conduct of the Business of any nature, whether accrued, absolute, contingent or otherwise, asserted or unasserted, known or unknown (including without limitation liabilities as guarantor or otherwise with respect to obligations of others, or liabilities for taxes due or then accrued or to become due or contingent or potential liabilities relating to activities of the Seller Entities in the Business or the conduct of the Business prior to the date hereof), whether or not of a type required to be shown on a balance sheet prepared in accordance with GAAP, except liabilities (i) as set forth stated or adequately reserved against on the face Base Balance Sheet (only to the extent of the Latest Balance Sheetamount provided for therein), or (ii) for Liabilities incurred in the ordinary course of business since the Latest Balance Sheet Date (none of which is a Liability for breach of contract, breach of warranty, tort, infringement or violation of Law), (iii) for Liabilities incurred in connection consistent with the negotiation, preparation or execution Seller Entities’ past customs and practices (including with respect to quantity and frequency) (the “Ordinary Course of Business”) after the date of this Agreement or any Ancillary Documents, the performance of their respective covenants or agreements in this Agreement or any Ancillary Document or the consummation of the transactions contemplated hereby or thereby and (iv) for Liabilities that are not and would not reasonably be expected to be, individually or in the aggregate, material to the Group Companies, taken as a whole, no Group Company has any Liabilities of the type required to be set forth on a balance sheet in accordance with GAAPextent permitted by this Agreement.
(d) The Group Companies As of the date hereof and as of the Closing, except for the Assumed Liabilities, the Seller Entities do not and will not have established and maintain systems of internal accounting controls that are designed any indebtedness for borrowed money (including without limitation, obligations under leases required to provide, in all material respects, reasonable assurance that (i) all transactions are executed be capitalized in accordance with management’s authorization and (iiGAAP) all transactions are recorded as necessary to permit preparation of proper and accurate financial statements in accordance with GAAP and to maintain accountability for the Group Companies’ assets. The Group Companies maintain and, for all periods covered by the Financial Statements, have maintained books and records of the Group Companies in the ordinary course of business that are accurate and complete and reflect the revenues, expenses, assets and liabilities of the Group Companies in all material respectswhich Buyer could become liable.
(e) Except as set forth in Section 3.4(e) of the Company Disclosure Schedule, since the incorporation of the Company, no Group Company has received any written complaint, allegation, assertion or claim that there is (i) “significant deficiency” in the internal controls over financial reporting of the Group Companies, (ii) a “material weakness” in the internal controls over financial reporting of the Group Companies or (iii) fraud, whether or not material, that involves management or other employees of the Group Companies who have a significant role in the internal controls over financial reporting of the Group Companies.
Appears in 1 contract
Sources: Acquisition Agreement (Inverness Medical Innovations Inc)
Financial Statements; Undisclosed Liabilities. (a) The Company has made available Seller and Parents have delivered to HighCape a true and complete copy of (i) Buyer the audited consolidated balance sheets of the Group Companies as of December 31following financial statements, 2019, and the related audited consolidated statements of operations and comprehensive loss, convertible preferred stock and stockholders’ deficit and cash flows of the Group Companies for each of the periods then ended, (ii) the unaudited consolidated balance sheets of the Group Companies as of December 31, 2020, and the related unaudited consolidated statements of operations and comprehensive loss, convertible preferred stock and stockholders’ deficit and cash flows of the Group Companies for the twelve (12)-month period then ended, and (iii) the unaudited consolidated balance sheets of the Group Companies as of December 31, 2019 and December 31, 2020 (the “Latest Balance Sheet”) and the related unaudited consolidated statements of operations and comprehensive loss, convertible preferred stock and stockholders’ deficit and cash flows of the Group Companies for each of the periods then ended (clauses (i), (ii), and (iii) are collectively, the “Financial Statements”), each copies of which are attached hereto as Section 3.4(aSchedule 2.6:
(i) Unaudited pro forma combined balance sheets for the MacGregor Dental Centers business (including Professional Service Bureau) for the fiscal years ended September 30, 1994 and 1993 and related statements of income, retained earnings and cash flows for the years then ended, certified by the chief financial officers of Seller; and
(ii) Audited balance sheets as of September 30, 1995 for the predecessors of each of MDCI and SMI (herein the "Base Balance Sheet") and audited statements of income, retained earnings and cash flows for the year then ended for such entities. Said financial statements have been prepared from the books and records of the Company Disclosure Schedules. Each of the Financial Statements (including the notes thereto) (A) was prepared in accordance with GAAP applied on a consistent basis throughout the periods indicated (except as may be indicated in the notes thereto)MacGregor Dental Centers business, (B) present fairly presents, in all material respects, respects the financial positioncondition of the predecessors of MDCI and SMI, as applicable, at the dates of said statements and the results of their operations and cash flows of the Group Companies as at the date thereof and for the period indicated thereinperiods covered thereby, except as otherwise specifically noted thereinand, and (C) in the case of the Financial Statements included audited statements referred to in clause (iii) onlySection 2.6(a)(ii), were have been prepared in accordance with the standards of the PCAOB, and comply in all material respects with the applicable generally accepted accounting requirements and with the rules and regulations of the SEC, the Exchange Act and the Securities Act in effect as of the respective dates thereof (including Regulation S-X or Regulation S-K, as applicable)principles applied on a consistent basis.
(b) The audited consolidated balance sheets As of the Group Companies as date hereof, there are no liabilities or obligations of December 31any nature, 2019 and December 31whether accrued, 2020absolute, and contingent or otherwise, asserted or unasserted, known or unknown, relating to the related audited consolidated statements MacGregor Dental Centers business, of operations and comprehensive loss, convertible preferred stock and stockholders’ deficit and cash flows of the Group Companies for each of the periods then ended (the “Closing Company Audited Financial Statements”), when delivered following the date of this Agreement in accordance with Section 5.17, (i) will a type required to be reflected on a balance sheet prepared in accordance with GAAP applied generally accepted accounting principles, except liabilities (i) stated or adequately reserved against on a consistent basis throughout the periods indicated (except as may be indicated in Base Balance Sheet or the notes thereto), (ii) will fairly present, specifically disclosed in all material respects, the financial position, results of operations and cash flows of the Group Companies as at Schedules furnished to Buyer hereunder on the date thereof hereof and for the period indicated thereinattached hereto, except as otherwise specifically noted therein, or (iii) will be audited in accordance with the standards of the PCAOB and will contain an unqualified report of the Company’s auditors, and (iv) will comply in all material respects with the applicable accounting requirements and with the rules and regulations of the SEC, the Exchange Act and the Securities Act in effect as of the respective dates thereof (including Regulation S-X or Regulation S-K, as applicable).
(c) Except (i) as set forth on the face of the Latest Balance Sheet, (ii) for Liabilities incurred in the ordinary course of business since the Latest Balance Sheet Date (none of which is a Liability for breach of contract, breach of warranty, tort, infringement or violation of Law), (iii) for Liabilities incurred in connection consistent with the negotiation, preparation or execution terms of this Agreement or any Ancillary Documents, subsequent to the performance of their respective covenants or agreements in this Agreement or any Ancillary Document or the consummation date of the transactions contemplated hereby or thereby and (iv) for Liabilities that are not and would not reasonably be expected to be, individually or in the aggregate, material to the Group Companies, taken as a whole, no Group Company has any Liabilities of the type required to be set forth on a balance sheet in accordance with GAAPBase Balance Sheet.
(d) The Group Companies have established and maintain systems of internal accounting controls that are designed to provide, in all material respects, reasonable assurance that (i) all transactions are executed in accordance with management’s authorization and (ii) all transactions are recorded as necessary to permit preparation of proper and accurate financial statements in accordance with GAAP and to maintain accountability for the Group Companies’ assets. The Group Companies maintain and, for all periods covered by the Financial Statements, have maintained books and records of the Group Companies in the ordinary course of business that are accurate and complete and reflect the revenues, expenses, assets and liabilities of the Group Companies in all material respects.
(e) Except as set forth in Section 3.4(e) of the Company Disclosure Schedule, since the incorporation of the Company, no Group Company has received any written complaint, allegation, assertion or claim that there is (i) “significant deficiency” in the internal controls over financial reporting of the Group Companies, (ii) a “material weakness” in the internal controls over financial reporting of the Group Companies or (iii) fraud, whether or not material, that involves management or other employees of the Group Companies who have a significant role in the internal controls over financial reporting of the Group Companies.
Appears in 1 contract
Financial Statements; Undisclosed Liabilities. (a) The Company has made available delivered to HighCape a the Parent true and complete copy correct copies of (i) the audited consolidated balance sheets sheet of the Group Companies Company as of December 31, 20192010, and the related December 31, 2009, and audited consolidated statements of operations and comprehensive lossincome, convertible preferred stock and changes in stockholders’ deficit equity and cash flows flow of the Group Companies Company for each of the twelve-month periods then endedended (the “Audited Financial Statements”), and (ii) the unaudited consolidated balance sheets sheet of the Group Companies Company as of December 31April 30, 2020, 2011 and the related unaudited consolidated statements of operations and comprehensive loss, convertible preferred stock and stockholders’ deficit income and cash flows flow of the Group Companies Company for the twelve (12)-month four-month period then ended, and (iii) the unaudited consolidated balance sheets of the Group Companies as of December 31, 2019 and December 31, 2020 ended (the “Latest Balance Sheet”) Interim Financial Statements,” and collectively with the related unaudited consolidated statements of operations and comprehensive loss, convertible preferred stock and stockholders’ deficit and cash flows of the Group Companies for each of the periods then ended (clauses (i), (ii), and (iii) are collectivelyAudited Financial Statements, the “Company Financial Statements”), each of which are attached . Except as set forth in Section 3.4(a3.06(a) of the Company Disclosure Schedules. Each of Letter, the Company Financial Statements (including the notes theretoi) (A) was have been prepared in accordance with GAAP applied on a consistent basis throughout the periods indicated (except as may be indicated in the related notes thereto)and schedules) applied consistently during the periods covered thereby, and (Bii) present fairly presents, in all material respects, respects the financial position, condition of the Company and its Subsidiaries at the dates of said statements and the results of the Company’s operations and cash flows of the Group Companies as at the date thereof and for the period indicated thereinperiods covered thereby, in each case in accordance with GAAP consistently applied (except as otherwise specifically expressly noted thereintherein and subject, and (C) in the case of the Interim Financial Statements included in clause (iii) onlyStatements, were prepared in accordance with the standards of the PCAOB, to normal and comply in all material respects with the applicable accounting requirements and with the rules and regulations of the SEC, the Exchange Act customary year end adjustments and the Securities Act in effect as absence of the respective dates thereof (including Regulation S-X or Regulation S-K, as applicablenotes thereto).
(b) The audited consolidated balance sheets Neither the Company nor any of the Group Companies its Subsidiaries had as of December 31, 2019 and December 31, 2020, and the related audited consolidated statements of operations and comprehensive loss, convertible preferred stock and stockholders’ deficit and cash flows of the Group Companies for each of the periods then ended (the “Closing Company Audited Financial Statements”), when delivered following the date of this Agreement in accordance the Interim Financial Statements, and has not incurred since the date of the Interim Financial Statements, any material liabilities, whether accrued, absolute, contingent or otherwise, asserted or unasserted, known or unknown (including liabilities as guarantor or otherwise with Section 5.17respect to obligations of others, (ior liabilities for Taxes due or then accrued or to become due or contingent) will of a type required to be shown on a balance sheet prepared in accordance with GAAP applied GAAP, except such liabilities (i) stated or adequately reserved against on a consistent basis throughout the periods indicated Interim Financial Statements (except as may be indicated in and then only to the notes thereto), extent of the amount provided for therein) (ii) will fairly present, in all material respects, the financial position, results of operations and cash flows of the Group Companies as at the date thereof and for the period indicated therein, except as otherwise specifically noted therein, (iii) will be audited in accordance with the standards of the PCAOB and will contain an unqualified report of the Company’s auditors, and (iv) will comply in all material respects with the applicable accounting requirements and with the rules and regulations of the SEC, the Exchange Act and the Securities Act in effect as of the respective dates thereof (including Regulation S-X or Regulation S-K, as applicable).
(c) Except (i) as set forth on the face of the Latest Balance Sheet, (ii) for Liabilities incurred in the ordinary course of business since the Latest Balance Sheet Date (none date of which is a Liability for breach of contract, breach of warranty, tort, infringement or violation of Law)the Interim Financial Statements, (iii) for Liabilities incurred as disclosed in connection with the negotiation, preparation or execution of this Agreement or any Ancillary Documents, the performance of their respective covenants or agreements in this Agreement or any Ancillary Document or the consummation Section 3.06(b) of the transactions contemplated hereby or thereby and Company Disclosure Letter, (iv) for Liabilities that are not and would not reasonably be expected to be, individually or in the aggregate, material relating to the Group Companies, taken as a whole, no Group Company has any Liabilities of Transaction Expenses or (v) which have been discharged or paid in full prior to the type required to be set forth on a balance sheet in accordance with GAAPdate hereof.
(d) The Group Companies have established and maintain systems of internal accounting controls that are designed to provide, in all material respects, reasonable assurance that (i) all transactions are executed in accordance with management’s authorization and (ii) all transactions are recorded as necessary to permit preparation of proper and accurate financial statements in accordance with GAAP and to maintain accountability for the Group Companies’ assets. The Group Companies maintain and, for all periods covered by the Financial Statements, have maintained books and records of the Group Companies in the ordinary course of business that are accurate and complete and reflect the revenues, expenses, assets and liabilities of the Group Companies in all material respects.
(ec) Except as set forth in Section 3.4(e3.06(c) of the Company Disclosure ScheduleLetter, since the incorporation as of the Companydate hereof, no Group neither the Company nor any of its Subsidiaries has received any written complaint, allegation, assertion or claim that there is indebtedness for borrowed money (i) “significant deficiency” including obligations under leases required to be capitalized in the internal controls over financial reporting of the Group Companies, (ii) a “material weakness” in the internal controls over financial reporting of the Group Companies or (iii) fraud, whether or not material, that involves management or other employees of the Group Companies who have a significant role in the internal controls over financial reporting of the Group Companiesaccordance with GAAP).
Appears in 1 contract
Sources: Merger Agreement (TUTOR PERINI Corp)
Financial Statements; Undisclosed Liabilities. (ai) The Company Southland Bank has previously delivered or made available to HighCape a true Parent accurate and complete copy copies of (i) the audited consolidated balance sheets of the Group Companies Southland Bank as of December 31, 20192002 and 2001 and the statements of operations, changes in stockholders' equity and cash flows for each of the years ended December 31, 2002 and 2001, which are accompanied by the audit report of ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇, LLP. The Southland Bank Financial Statements referred to herein, as well as the Southland Bank Financial Statements to be delivered pursuant to Section 6.06(c) hereof, fairly present or will fairly present, as the case may be, the financial condition of Southland Bank as of the respective dates set forth therein, and the related audited consolidated statements results of operations and comprehensive lossoperations, convertible preferred stock and changes in stockholders’ deficit ' equity and cash flows of Southland Bank for the Group Companies for each respective periods or as of the periods then ended, respective dates set forth therein.
(ii) the unaudited consolidated balance sheets of the Group Companies as of December 31, 2020, and the related unaudited consolidated statements of operations and comprehensive loss, convertible preferred stock and stockholders’ deficit and cash flows of the Group Companies for the twelve (12)-month period then ended, and (iii) the unaudited consolidated balance sheets of the Group Companies as of December 31, 2019 and December 31, 2020 (the “Latest Balance Sheet”) and the related unaudited consolidated statements of operations and comprehensive loss, convertible preferred stock and stockholders’ deficit and cash flows of the Group Companies for each of the periods then ended (clauses (i), (ii), and (iii) are collectively, the “Financial Statements”), each of which are attached as Section 3.4(a) of the Company Disclosure Schedules. Each of the The Southland Bank Financial Statements (including have been or will be, as the notes thereto) (A) was case may be, prepared in accordance with GAAP consistently applied on a consistent basis throughout during the periods indicated (except as may be indicated in the notes thereto), (B) fairly presents, in all material respects, the financial position, results of operations and cash flows of the Group Companies as at the date thereof and for the period indicated thereininvolved, except as otherwise specifically noted stated therein, and (C) in except the case of the unaudited Southland Bank Financial Statements included may not include all footnote disclosures required by GAAP. The audits of Southland Bank have been conducted in clause accordance with generally accepted auditing standards.
(iii) onlyExcept as Previously Disclosed, were prepared in accordance with the standards of the PCAOB, and comply in all material respects with the applicable accounting requirements and with the rules and regulations of the SEC, the Exchange Act and the Securities Act in effect as of the respective dates thereof (including Regulation S-X or Regulation S-K, as applicable).
(b) The audited consolidated balance sheets of the Group Companies as of since December 31, 2019 and December 312002, 2020, and the related audited consolidated statements of operations and comprehensive loss, convertible preferred stock and stockholders’ deficit and cash flows of the Group Companies for each of the periods then ended (the “Closing Company Audited Financial Statements”), when delivered following the date of this Agreement in accordance with Section 5.17, (i) will be prepared in accordance with GAAP applied on a consistent basis throughout the periods indicated (except as may be indicated in the notes thereto), (ii) will fairly present, in all material respects, the financial position, results of operations and cash flows of the Group Companies as at the date thereof and for the period indicated therein, except as otherwise specifically noted therein, (iii) will be audited in accordance with the standards of the PCAOB and will contain an unqualified report of the Company’s auditors, and (iv) will comply in all material respects with the applicable accounting requirements and with the rules and regulations of the SEC, the Exchange Act and the Securities Act in effect as of the respective dates thereof (including Regulation S-X or Regulation S-K, as applicable).
(c) Except (i) as set forth on the face of the Latest Balance Sheet, (ii) for Liabilities Southland Bank has not incurred any liability other than in the ordinary course of business since consistent with past practice (excluding the Latest Balance Sheet Date incurrence of expenses related to this Agreement and the Transaction).
(none iv) Since December 31, 2002, (A) Southland Bank has conducted its businesses in the ordinary and usual course consistent with past practice (excluding the incurrence of which is a Liability for breach of contract, breach of warranty, tort, infringement or violation of Lawexpenses related to this Agreement and the Transaction), (iiiB) for Liabilities incurred in connection with the negotiationexcept as Previously Disclosed, preparation or execution of this Agreement or Southland Bank has not taken nor permitted any Ancillary Documents, the performance of their respective covenants or agreements in this Agreement or any Ancillary Document or the consummation of the transactions contemplated hereby or thereby and (iv) for Liabilities that are not and would not reasonably be expected to be, individually or in the aggregate, material to the Group Companies, taken as a whole, no Group Company has any Liabilities of the type required to be set forth on a balance sheet in accordance with GAAP.
(d) The Group Companies have established and maintain systems of internal accounting controls that are designed to provide, in all material respects, reasonable assurance that (i) all transactions are executed in accordance with management’s authorization and (ii) all transactions are recorded as necessary to permit preparation of proper and accurate financial statements in accordance with GAAP and to maintain accountability for the Group Companies’ assets. The Group Companies maintain and, for all periods covered by the Financial Statements, have maintained books and records of the Group Companies in the ordinary course of business that are accurate and complete and reflect the revenues, expenses, assets and liabilities of the Group Companies in all material respects.
(e) Except as actions set forth in Section 3.4(e4.01 hereof between December 31, 2002 and the date hereof and (C) no event has occurred or circumstance arisen that, individually or taken together with all other facts, circumstances and events (described in any paragraph of this Section 5.03 or otherwise), is reasonably likely to have a Material Adverse Effect with respect to Southland Bank.
(v) No agreement pursuant to which any loans or other assets have been or shall be sold by Southland Bank entitled the Company Disclosure Schedulebuyer of such loans or other assets, since unless there is material breach of a representation or covenant by Southland Bank, to cause Southland Bank to repurchase such loan or other asset or the incorporation buyer to pursue any other form of the Companyrecourse against Southland Bank. Since December 31, 1999, no Group Company has received any written complaintcash, allegation, assertion or claim that there is (i) “significant deficiency” in the internal controls over financial reporting of the Group Companies, (ii) a “material weakness” in the internal controls over financial reporting of the Group Companies or (iii) fraud, whether or not material, that involves management stock or other employees dividend or any other distribution with respect to the Southland Bank Common Stock has been declared, set aside or paid. No shares of Southland Bank Common Stock have been purchased, redeemed or otherwise acquired, directly or indirectly, by Southland Bank since December 31, 2002, and no agreements have been made to do the Group Companies who have a significant role in the internal controls over financial reporting of the Group Companiesforegoing.
Appears in 1 contract
Financial Statements; Undisclosed Liabilities. (a) The Company has made available to HighCape Cascadia a true and complete copy of (i) the audited unaudited consolidated balance sheets sheet of the Group Companies Company and its Subsidiaries as of December 31, 2019, and the related audited consolidated statements of operations and comprehensive loss, convertible preferred stock and stockholders’ deficit and cash flows of the Group Companies for each of the periods then ended, (ii) the unaudited consolidated balance sheets of the Group Companies as of December 31, 2020, and the related unaudited consolidated statements of operations and comprehensive loss, convertible preferred stock and stockholders’ deficit and cash flows of the Group Companies for the twelve (12)-month period then ended, and (iii) the unaudited consolidated balance sheets of the Group Companies as of December 31, 2019 and December 31, 2020 2022 (the “Latest Balance Sheet”) and the related unaudited consolidated statements of operations and comprehensive loss, convertible preferred stock and stockholders’ deficit loss and cash flows of the Group Companies Company and its Subsidiaries for the twelve-months then ended, and (ii) the audited consolidated balance sheet of the Company and its Subsidiaries as of each of December 31, 2020 and December 31, 2021, and the related audited consolidated statements of operations and comprehensive loss and cash flows of the Company and its Subsidiaries for each of the periods year then ended (clauses (i), (ii), and (iii) are collectively, the “Financial Statements”), each of which are attached as Section 3.4(a) of the Company Disclosure Schedules. Each of the The Financial Statements (including the notes thereto, if applicable) (A) was were prepared in accordance with GAAP applied on a consistent basis throughout the periods indicated, (B) in the case of any audited financial statements, were audited in accordance with the standards of the PCAOB and (C) fairly present, in all material respects, the financial position, results of operations, and cash flows of the Company for the periods indicated therein.
(b) The Closing Company Audited Financial Statements and any other Closing Company Financial Statements will be derived from the books and records of the Group Companies. The Closing Company Financial Statements will (A) be prepared in accordance with GAAP applied on a consistent basis throughout the periods indicated (except except, in the case of any audited financial statements, as may be specifically indicated in the notes thereto and subject, in the case of any unaudited financial statements, to normal year-end audit adjustments (none of which is expected to be individually or in the aggregate material) and the absence of notes thereto), (B) fairly presents, in all material respects, the financial position, results of operations and cash flows of the Group Companies as at the date thereof and for the period indicated therein, except as otherwise specifically noted therein, and (C) in the case of the Financial Statements included in clause (iii) onlyany audited financial statements, were prepared be audited in accordance with the standards of the PCAOB, PCAOB and to contain a report of the Company’s auditor and (C) comply in all material respects with the applicable accounting requirements and with the rules and regulations of the SEC, the Exchange Act and the Securities Act in effect as of the respective dates thereof of delivery (including Regulation S-X or Regulation S-K, as applicable).
(b) The audited . No financial statements other than those consolidated balance sheets financial statements of the Group Companies as of December 31, 2019 and December 31, 2020, and are required by GAAP to be included in the related audited consolidated statements of operations and comprehensive loss, convertible preferred stock and stockholders’ deficit and cash flows of the Group Companies for each of the periods then ended (the “Closing Company Audited Financial Statements”), when delivered following the date of this Agreement in accordance with Section 5.17, (i) will be prepared in accordance with GAAP applied on a consistent basis throughout the periods indicated (except as may be indicated in the notes thereto), (ii) will fairly present, in all material respects, the financial position, results of operations and cash flows of the Group Companies as at the date thereof and for the period indicated therein, except as otherwise specifically noted therein, (iii) will be audited in accordance with the standards of the PCAOB and will contain an unqualified report of the Company’s auditors, and (iv) will comply in all material respects with the applicable accounting requirements and with the rules and regulations of the SEC, the Exchange Act and the Securities Act in effect as of the respective dates thereof (including Regulation S-X or Regulation S-K, as applicable).
(c) Except The Group Companies have no Liabilities except (i) as set forth on the face of the Latest Balance SheetSheet (rather than in any notes thereto), (ii) for Liabilities incurred in the ordinary course of business since the date of the Latest Balance Sheet Date (none of which is excluding any Liabilities directly or indirectly related to a Liability for breach of contractContract, breach of warranty, torttort (including infringement of Intellectual Property Rights), infringement Proceeding or violation of of, or non-compliance with Law), (iii) for Liabilities incurred in connection with the negotiation, preparation or execution of this Agreement or any Ancillary Documents, the performance by the Company of their respective its covenants or agreements in this Agreement or any Ancillary Document to which it is or will be a party or the consummation of the transactions contemplated hereby Transactions (including, for the avoidance of doubt, the Company Expenses), or thereby and (iv) for Liabilities that are not and would not reasonably be expected to be, individually or in the aggregate, material to the Group Companies, taken as a whole, no Group Company has executory obligations under Contracts (excluding any Liabilities directly or indirectly related to a breach of the type required to be set forth on a balance sheet in accordance with GAAPContract).
(d) The Group Companies have established and maintain systems of internal accounting controls that are designed to provide, in all material respects, provide reasonable assurance that (i) all transactions are executed in accordance with management’s authorization and (ii) all transactions are recorded as necessary to permit preparation of proper and accurate financial statements in accordance with GAAP and to maintain accountability for the Group Companies’ assets. The Group Companies maintain and, for all periods covered by the Financial Statementsperiods, have maintained books and records of the Group Companies in the ordinary course of business that are accurate and complete and reflect reflect, in reasonable detail, the revenues, expenses, assets and liabilities of the Group Companies in all material respectsCompanies.
(e) Except as set forth in on Section 3.4(e) of the Company Disclosure ScheduleSchedules, since the incorporation Company has not received any written or, to the knowledge of the Company, no Group Company has received any written oral complaint, allegation, assertion or claim that there is (i) a “significant deficiency” in the internal controls over financial reporting of the Group Companies, (ii) a “material weakness” in the internal controls over financial reporting of the Group Companies or (iii) fraud, whether or not material, that involves management or other employees of the Group Companies who have a significant role in the internal controls over financial reporting of the Group Companies.
(f) All accounts receivable reflected in the Financial Statements, represent arm’s length sales in the ordinary course of business, constitute valid claims of the Group Companies, as applicable, free and clear of all Liens other than Permitted Liens, and are not subject to any dispute, claim, set-off or other defense or counterclaims other than returns in the ordinary course of business. Since December 31, 2022, (i) there have not been any write-offs as uncollectible of such accounts receivable, except for write-offs in the ordinary course of business consistent with past practice, and (ii) there has not been a material change in the aggregate amount of such accounts receivable and amounts owing to the Company or any of its subsidiaries or the aging thereof.
(g) Any certifications and representations made by the Group Companies in any application by the Group Companies for a Paycheck Protection Program loan made by a lender authorized under the CARES Act to make such loan (such loan, a “PPP Loan” and such lender, a “PPP Lender”) and in any application for forgiveness of such PPP Loan, including in any material supporting documentation with respect thereto were, at the time of submission to the applicable PPP Lender and for all applicable periods under such applications and related loan documents, true, complete and correct in all respects. The Group Companies deposited all proceeds from any PPP Loan into a segregated account not subject to the Liens of any other lender of the Group Companies. The proceeds of any PPP Loan were used solely for the purposes permitted by the CARES Act, and the Group Companies has complied in all material respects with all requirements of the CARES Act.
Appears in 1 contract
Sources: Business Combination Agreement (Cascadia Acquisition Corp.)
Financial Statements; Undisclosed Liabilities. (a) The Company has Parties have made available to HighCape Parent a true and complete copy of (i) the audited unaudited consolidated balance sheets of the Group Companies as of December 31, 2019, 2019 and the related audited consolidated statements of operations and comprehensive loss, convertible preferred stock and stockholders’ deficit and cash flows of the Group Companies for each of the periods then ended, (ii) the unaudited consolidated balance sheets of the Group Companies as of December 31, 2020, and the related unaudited consolidated statements of operations and comprehensive loss, convertible preferred stock and stockholders’ deficit and cash flows of the Group Companies for each of the twelve (12)-month period periods then ended, and (iiiii) the unaudited consolidated balance sheets of the Group Companies as of December March 31, 2019 and December 31, 2020 2021 (the “Latest Balance SheetSheet Date”) ), and the related unaudited consolidated statements of operations and comprehensive loss, convertible preferred stock and stockholders’ deficit and cash flows of the Group Companies for each of the three-month periods then ended ended, without footnotes (clauses (i), ) and (ii), and (iii) are collectively, the “Financial Statements”), each of which are attached as Section 3.4(a) of the Company Parties Disclosure Schedules. Each of the Financial Statements (including the notes thereto) (A) was prepared in accordance with GAAP applied on a consistent basis throughout the periods indicated (except as may be indicated in the notes thereto), (B) fairly presents, in all material respects, the financial position, results of operations and cash flows of the Group Companies as at the date thereof and for the period indicated therein, except as otherwise specifically noted therein, and (C) in the case of the Financial Statements included in clause (iiii) only, were prepared in accordance with the standards of the PCAOB, and comply in all material respects with the applicable accounting requirements and with the rules and regulations of the SEC, the Exchange Act and the Securities Act in effect as of the respective dates thereof (including Regulation S-X or Regulation S-K, as applicable).
(bi) The audited consolidated balance sheets of the Group Companies as of December 31, 2019 and December 31, 2020, and the related audited consolidated statements of operations and comprehensive loss, convertible preferred stock and stockholders’ deficit and cash flows of the Group Companies for each of the periods then ended and (ii) the unaudited consolidated balance sheets of the Group Companies as of June 30, 2021, and the related unaudited consolidated statements of operations and comprehensive loss, convertible preferred stock and stockholders’ deficit and cash flows of the Group Companies for the six-month periods then ended (collectively, the “Closing Company Audited Parties Financial Statements”), when delivered following the date of this Agreement in accordance with Section 5.17, (i) will be prepared in accordance with GAAP applied on a consistent basis throughout the periods indicated (except as may be indicated in the notes thereto), (ii) will fairly present, in all material respects, the financial position, results of operations and cash flows of the Group Companies Company Party and its Subsidiaries as at the date thereof and for the period indicated therein, except as otherwise specifically noted therein, (iii) in the case of the Financial Statements included in clause (i) only, will be audited in accordance with the standards of the PCAOB and will contain an unqualified report of the CompanyCompany Party’s auditors, and (iv) will comply in all material respects with the applicable accounting requirements and with the rules and regulations of the SEC, the Exchange Act and the Securities Act in effect as of the respective dates thereof (including Regulation S-X or Regulation S-K, as applicable).
(c) Except (i) as set forth on the face of the Latest Balance SheetFinancial Statements, (ii) for Liabilities incurred in the ordinary course of business since the applicable Latest Balance Sheet Date (none of which is a Liability for breach of contract, breach of warranty, tort, infringement or violation of Law), (iii) for Liabilities incurred in connection with the negotiation, preparation or execution of this Agreement or any Ancillary Documents, the performance of their respective covenants or agreements in this Agreement or any Ancillary Document or the consummation of the transactions contemplated hereby or thereby and (iv) for Liabilities that are not and would not reasonably be expected to be, individually or in the aggregate, material to the Group Companiesa Company Party and its Subsidiaries, taken as a whole, no Group Company Party and its Subsidiaries has any Liabilities of the type required to be set forth on a balance sheet in accordance with GAAP.
(d) The Group Companies Each Company Party and its Subsidiaries have established and maintain systems of internal accounting controls that are designed to provide, in all material respects, reasonable assurance that (i) all transactions are executed in accordance with management’s authorization and (ii) all transactions are recorded as necessary to permit preparation of proper and accurate financial statements in accordance with GAAP and to maintain accountability for the Group CompaniesCompany Party’s and its Subsidiaries’ assets. The Group Companies maintain and, for all periods covered by the Financial Statements, have maintained books and records of the Group Companies in the ordinary course of business that are accurate and complete and reflect the revenues, expenses, assets and liabilities of the Group Companies in all material respects.
(e) Except as set forth in Section 3.4(e) of the Company Parties Disclosure Schedule, since the incorporation of the Companyeach Company Party, no Group Company Party or its Subsidiaries has received any written complaint, allegation, assertion or claim that there is (i) “significant deficiency” in the internal controls over financial reporting of the a Group CompaniesCompany to each Company Party’s knowledge, (ii) a “material weakness” in the internal controls over financial reporting of the a Group Companies Company to each Company Party’s knowledge or (iii) fraud, whether or not material, that involves management or other employees of the a Group Companies Company who have a significant role in the internal controls over financial reporting of the a Group CompaniesCompany.
Appears in 1 contract
Sources: Business Combination Agreement (HealthCor Catalio Acquisition Corp.)
Financial Statements; Undisclosed Liabilities. (a) The Company has made available (or will upon receipt of same from the Company’s auditor) to HighCape the Carmell Parties a true and complete copy of (i) the audited consolidated balance sheets of the Group Companies Company as of December 31, 20192022 and December 31, 2021 and the related audited consolidated statements of operations and comprehensive loss, convertible preferred stock and stockholders’ deficit equity (deficit) and cash flows of the Group Companies Company for each of the periods then ended, (ii) the unaudited consolidated balance sheets of the Group Companies as of December 31, 2020, and the related unaudited consolidated statements of operations and comprehensive loss, convertible preferred stock and stockholders’ deficit and cash flows of the Group Companies for the twelve (12)-month period then ended, and (iii) the unaudited consolidated balance sheets of the Group Companies as of December 31, 2019 and December 31, 2020 (the “Latest Balance Sheet”) and the related unaudited consolidated statements of operations and comprehensive loss, convertible preferred stock and stockholders’ deficit and cash flows of the Group Companies for each of the periods years then ended (clauses (i), (ii), and (iii) are collectively, the “Company Financial Statements”), each of which are attached as Section 3.4(a) of the . The Company Disclosure Schedules. Each of the Financial Statements (including the notes thereto) (A) was were prepared in accordance with GAAP applied on a consistent basis throughout the periods indicated (except as may be indicated in the notes thereto), (B) fairly presentspresent, in all material respects, the financial position, results of operations and cash flows of the Group Companies Company as at the date thereof and for the period indicated therein, except as otherwise specifically noted therein, and (C) in the case of the Financial Statements included in clause (iii) only, were prepared audited in accordance with the standards of the PCAOB, PCAOB and contain an unqualified report of the Company’s auditors and (D) comply in all material respects with the applicable accounting requirements and with the rules and regulations of the SEC, the Exchange Act and the Securities Act in effect as of the respective dates thereof date hereof (including Regulation S-X or Regulation S-K, as applicable).
(b) The audited consolidated balance sheets of the Group Companies as of December 31, 2019 and December 31, 2020, and the related audited consolidated statements of operations and comprehensive loss, convertible preferred stock and stockholders’ deficit and cash flows of the Group Companies for each of the periods then ended (the “Closing Company Audited Financial Statements”), when delivered following the date of this Agreement in accordance with Section 5.17, (i) will be prepared in accordance with GAAP applied on a consistent basis throughout the periods indicated (except as may be indicated in the notes thereto), (ii) will fairly present, in all material respects, the financial position, results of operations and cash flows of the Group Companies as at the date thereof and for the period indicated therein, except as otherwise specifically noted therein, (iii) will be audited in accordance with the standards of the PCAOB and will contain an unqualified report of the Company’s auditors, and (iv) will comply in all material respects with the applicable accounting requirements and with the rules and regulations of the SEC, the Exchange Act and the Securities Act in effect as of the respective dates thereof (including Regulation S-X or Regulation S-K, as applicable).
(c) Except (i) as set forth on in the face of the Latest Balance SheetCompany Financial Statements, (ii) for Liabilities incurred in the ordinary course of business since the Latest Balance Sheet Date as of December 31, 2022 (none of which is a Liability for breach of contract, breach of warranty, tort, infringement or violation of Law), (iii) for Liabilities incurred in connection with the negotiation, preparation or execution of this Agreement or any Ancillary Documents, the performance of their respective covenants or agreements in this Agreement or any Ancillary Document or the consummation of the transactions contemplated hereby or thereby and (iv) for Liabilities that are not and would not reasonably be expected to be, individually or in the aggregate, material to the Group CompaniesCompany, taken as a whole, no Group the Company has any no Liabilities of the type required by GAAP to be set forth on a reflected or reserved against in the consolidated balance sheet as of December 31, 2022 included in accordance with GAAPthe Company Financial Statements.
(dc) The Group Companies have Company has established and maintain systems maintains a system of internal accounting controls that are is designed to provide, in all material respects, reasonable assurance that (i) all transactions are executed in accordance with management’s authorization and (ii) all transactions are recorded as necessary to permit preparation of proper and accurate financial statements in accordance with GAAP and to maintain accountability for the Group Companies’ Company’s assets. The Group Companies maintain and, for all periods covered by the Financial Statements, have maintained books and records of the Group Companies in the ordinary course of business that are accurate and complete and reflect the revenues, expenses, assets and liabilities of the Group Companies in all material respects.
(ed) Except as set forth in Section 3.4(e) of the Company Disclosure Schedule, since the incorporation of the Company, no Group The Company has not received any written complaint, allegation, assertion or claim that there is (i) “significant deficiency” in the internal controls over financial reporting of the Group CompaniesCompany, (ii) a “material weakness” in the internal controls over financial reporting of the Group Companies Company or (iii) fraud, whether or not material, that involves management or other employees of the Group Companies Company who have a significant role in the internal controls over financial reporting of the Group CompaniesCompany.
(e) All of the accounts receivable, whether billed or unbilled, of the Company arose in the ordinary course of business, are carried at values determined in accordance with GAAP consistently applied, are not subject to any valid set-off or counterclaim, do not represent obligations for goods sold on consignment, on approval or on a sale-or-return basis or subject to any other repurchase or return arrangement, and are collectible except to the extent of reserves therefor set forth in the audited consolidated balance sheets of the Company as of December 31, 2022 or, for accounts receivable arising subsequent to such date, as reflected on the books and records of the Company (which accounts receivable are recorded in accordance with GAAP consistently applied). No Person has any Lien on any accounts receivable of the Company and no request or agreement for deduction or discount has been made with respect to any accounts receivable of the Company. Section 3.4(e) of the Company Disclosure Schedule sets forth the aging of the accounts receivable of the Company as of date disclosed thereon.
(f) All inventory, finished goods, raw materials, work in progress, packaging, supplies, parts and other inventories (“Inventory”), whether or not reflected on the Company’s balance sheet, consists of a quality and quantity usable and salable in the ordinary course of business, except for obsolete, damaged, defective or slow-moving items that have been written off or written down to fair market value and is disclosed on Section 3.4(f)of the Company Disclosure Schedule or for which adequate reserves have been established and is disclosed on Section 3.4(f) of the Company Disclosure Schedule. All Inventory is owned by the Company free and clear of all Liens, and no Inventory is held on a consignment basis. The quantities of each item of Inventory (whether raw materials, work-in-process or finished goods) are not excessive, but are reasonable in the present circumstances of the Company and are sufficient to fulfill all outstanding orders, contracts and commitments of the Company.
Appears in 1 contract
Financial Statements; Undisclosed Liabilities. (a) The Company has made available delivered to HighCape a true Parent true, correct and complete copy copies of (i) the audited consolidated unaudited balance sheets sheet, as of November 30, 2005 of the Group Companies Company and the Subsidiaries (the "Latest Balance Sheet") and the unaudited statements of income, stockholders' equity and cash flows of the Company for the eleven-month period ended November 30, 2005 (such statements of income, stockholders' equity and cash flows and the Latest Balance Sheet being herein referred to as the "Latest Financial Statements") and (ii) the audited balance sheet, as of December 31, 20192002, 2003 and 2004 of the Company and the related audited consolidated statements of operations and comprehensive lossincome, convertible preferred stock and stockholders’ deficit ' equity and cash flows of the Group Companies Company for each of the periods then ended, (ii) the unaudited consolidated balance sheets of the Group Companies as of years ended December 31, 20202002, 2003 and the related unaudited consolidated statements of operations and comprehensive loss, convertible preferred stock and stockholders’ deficit and cash flows of the Group Companies for the twelve 2004 (12)-month period then ended, and (iii) the unaudited consolidated balance sheets of the Group Companies as of December 31, 2019 and December 31, 2020 (the “Latest Balance Sheet”) and the related unaudited consolidated statements of operations and comprehensive loss, convertible preferred stock and stockholders’ deficit and cash flows of the Group Companies for each of the periods then ended (clauses (i), (ii), and (iii) are collectively, the “"Annual Financial Statements”"), each of which . The Latest Financial Statements and the Annual Financial Statements are attached as Section 3.4(a) based upon the information contained in the books and records of the Company Disclosure Schedules. Each and fairly and accurately present the financial condition of the Company as of the dates thereof and results of operations for the periods referred to therein. The Annual Financial Statements (including have been prepared in accordance with GAAP, applied on a consistent basis and consistent with the notes thereto) (A) was past accounting practices of the Company. The Latest Financial Statements have been prepared in accordance with GAAP applied applicable to unaudited interim financial statements (and thus may not contain all notes and may not contain prior period comparative data which are required for compliance with GAAP), on a basis consistent basis throughout with the periods indicated Annual Financial Statements, subject to normal recurring year-end adjustments. The Company's internal controls and procedures are sufficient to ensure that the Latest Financial Statements and the Annual Financial Statements are accurate in all material respects.
(except b) Except as may be indicated set forth in the notes thereto)Disclosure Schedule, (B) fairly presentsall accounts, books and ledgers related to the business of the Company are properly kept, are accurate and complete in all material respects, the financial position, results and there are no material inaccuracies or discrepancies of operations and cash flows of the Group Companies any kind contained or reflected therein. Except as at the date thereof and for the period indicated therein, except as otherwise specifically noted therein, and (C) set forth in the case of the Financial Statements included in clause (iii) only, were prepared in accordance with the standards of the PCAOB, and comply in all material respects with the applicable accounting requirements and with the rules and regulations of the SECDisclosure Schedule, the Exchange Act and the Securities Act in effect as Company does not have any of the respective dates thereof its records, systems, controls, data, or information recorded, stored, maintained, operated or otherwise wholly or partly dependent upon or held by any means (including Regulation S-X any electronic, mechanical or Regulation S-Kphotographic process, as applicable).
whether computerized or not) which (bincluding all means of access thereto and therefrom) The audited consolidated balance sheets of are not under the Group Companies as of December 31, 2019 exclusive ownership (excluding licensed software programs) and December 31, 2020, and the related audited consolidated statements of operations and comprehensive loss, convertible preferred stock and stockholders’ deficit and cash flows of the Group Companies for each of the periods then ended (the “Closing Company Audited Financial Statements”), when delivered following the date of this Agreement in accordance with Section 5.17, (i) will be prepared in accordance with GAAP applied on a consistent basis throughout the periods indicated (except as may be indicated in the notes thereto), (ii) will fairly present, in all material respects, the financial position, results of operations and cash flows of the Group Companies as at the date thereof and for the period indicated therein, except as otherwise specifically noted therein, (iii) will be audited in accordance with the standards of the PCAOB and will contain an unqualified report direct control of the Company’s auditors, and (iv) will comply in all material respects with the applicable accounting requirements and with the rules and regulations of the SEC, the Exchange Act and the Securities Act in effect as of the respective dates thereof (including Regulation S-X or Regulation S-K, as applicable).
(c) Except (i) as set forth on and to the face of extent reflected in the Latest Balance Sheet, the Company has no liabilities or obligations (iiwhether accrued, absolute, contingent, unliquidated or otherwise, whether due or to become due, whether known or unknown, and regardless of when asserted) for Liabilities incurred arising out of transactions or events heretofore entered into, or any action or inaction, or any state of facts existing, with respect to or based upon transactions or events heretofore occurring, except (i) liabilities of not more than Two Million Five Hundred Thousand Dollars ($ 2,500,000) in the aggregate that have arisen after the date of the Latest Balance Sheet in the ordinary course of business since the Latest Balance Sheet Date business, consistent with past custom and practice (none of which is a Liability liability for breach of contract, breach of warranty, violation of Applicable Law, tort, infringement infringement, claim or violation of Lawlawsuit), (iii) for Liabilities incurred in connection with the negotiation, preparation or execution of this Agreement or any Ancillary Documents, the performance of their respective covenants or agreements in this Agreement or any Ancillary Document or the consummation of the transactions contemplated hereby or thereby and (iv) for Liabilities that are not and would not reasonably be expected to be, individually or in the aggregate, material to the Group Companies, taken as a whole, no Group Company has any Liabilities of the type required to be set forth on a balance sheet in accordance with GAAP.
(d) The Group Companies have established and maintain systems of internal accounting controls that are designed to provide, in all material respects, reasonable assurance that (i) all transactions are executed in accordance with management’s authorization and (ii) all transactions are recorded as necessary to permit preparation of proper and accurate financial statements in accordance with GAAP and to maintain accountability for the Group Companies’ assets. The Group Companies maintain and, for all periods covered by the Financial Statements, have maintained books and records of the Group Companies in the ordinary course of business that are accurate and complete and reflect the revenues, expenses, assets and liabilities of the Group Companies in all material respects.
(e) Except as set forth in Section 3.4(e) of the Company Disclosure Schedule, since the incorporation of the Company, no Group Company has received any written complaint, allegation, assertion or claim that there is (i) “significant deficiency” in the internal controls over financial reporting of the Group Companies, (ii) a “material weakness” in the internal controls over financial reporting liabilities disclosed on Section 3.8 of the Group Companies Disclosure Schedule, or (iii) fraud, whether or not material, that involves management or other employees Liabilities under Contracts set forth on Section 3.21 of the Group Companies who have a significant role in the internal controls over financial reporting of the Group CompaniesDisclosure Schedule.
Appears in 1 contract
Financial Statements; Undisclosed Liabilities. (a) The Company has made available to HighCape a true and complete copy of (i) the audited consolidated balance sheets of the Group Companies Company and its Subsidiaries as of December October 31, 2019, and the related audited consolidated statements of operations and comprehensive loss, convertible preferred stock and stockholders’ deficit and cash flows of the Group Companies for each of the periods then ended, (ii) the unaudited consolidated balance sheets of the Group Companies as of December 31, 2020, and the related unaudited consolidated statements of operations and comprehensive loss, convertible preferred stock and stockholders’ deficit and cash flows of the Group Companies for the twelve (12)-month period then ended, and (iii) the unaudited consolidated balance sheets of the Group Companies as of December 31, 2019 and December 31, 2020 2022 (the “Latest Balance Sheet”) and the related unaudited audited consolidated statements of operations and comprehensive lossoperations, convertible preferred stock and stockholderschanges in shareholders’ deficit equity and cash flows of the Group Companies Company and its Subsidiaries for each of the periods then years ended October 31, 2020, October 31, 2021 and October 31, 2022, including the notes thereto (clauses (i), (ii), and (iii) are collectively, the “Audited Company Financial Statements”), each when delivered following the date of which are attached as this Agreement in accordance with Section 3.4(a) of the Company Disclosure Schedules. Each of the Financial Statements (including the notes thereto) 5.16, (A) was will be prepared in accordance with GAAP applied on a consistent basis throughout the periods indicated (except as may be indicated in the notes thereto), (B) will fairly presentspresent, in all material respects, the financial position, results of operations and cash flows of the Group Companies Company and its Subsidiaries as at of the date dates thereof and for the period periods indicated therein, except as otherwise specifically noted therein, and (C) in the case of the Financial Statements included in clause (iii) only, were prepared will have been audited in accordance with the standards of the PCAOBPCAOB and contain an unqualified report of the Company’s auditors, and (D) will comply in all material respects with the applicable accounting requirements and with the rules and regulations of the SEC, the Exchange Act and the Securities Act in effect as of the respective dates thereof (including Regulation S-X or Regulation S-K, as applicable).
(b) The audited unaudited consolidated balance sheets of the Group Companies Company and its Subsidiaries as of December 31April 30, 2019 and December 31, 2020, 2023 and the related audited unaudited consolidated statements of operations and comprehensive loss, convertible preferred stock and stockholderschanges in shareholders’ deficit equity and cash flows of the Group Companies Company and its Subsidiaries for each of the six-month periods then ended April 30, 2022 and April 30, 2023 (the “Closing Unaudited Company Financial Statements” and together with the Audited Company Financial Statements, the “Company Financial Statements”), when delivered following the date of this Agreement in accordance with Section 5.175.16, (i) will be prepared in accordance with GAAP applied on a consistent basis throughout the periods indicated (except as may be indicated in the notes thereto), (ii) will fairly present, in all material respects, the financial position, results of operations and cash flows of the Group Companies Company and its Subsidiaries as at of the date dates thereof and for the period periods indicated thereintherein (subject to normal year-end audit adjustments (none of which is expected to be material) and the absence of footnotes), except as otherwise specifically noted therein, therein and (iii) will be audited in accordance with the standards of the PCAOB and will contain an unqualified report of the Company’s auditors, and (iv) will comply in all material respects with the applicable accounting requirements and with the rules and regulations of the SEC, the Exchange Act and the Securities Act in effect as of the respective dates thereof (including Regulation S-X or Regulation S-K, as applicable).
(c) Except (i) as The accounts receivable of the Company and its Subsidiaries reflected on the Latest Balance Sheet arose in the ordinary course of business from bona fide transactions and in accordance with GAAP and none of such accounts receivable are subject to any set offs, counterclaims, credits or other offsets, and are current and collectible and will be collected in accordance with their terms and their recorded amounts, subject only to the reserve for bad debts set forth in the Company Financial Statements. The accounts payable of the Company and its Subsidiaries reflected on the face Latest Balance Sheet arose in the ordinary course of business from bona fide transactions and in accordance with GAAP. Since the date of the Latest Balance Sheet, (ii) for Liabilities incurred and other than in accordance with, related to or arising out of the negotiation and consummation of the Transactions, the accounts receivable and accounts payable of the Company and its Subsidiaries have arisen in the ordinary course of business since from bona fide transactions.
(d) Except for Liabilities (i) set forth in Section 3.4(d) of the Latest Balance Sheet Date (none of which is a Liability for breach of contract, breach of warranty, tort, infringement or violation of Law)Company Disclosure Schedules, (iiiii) for Liabilities incurred in connection with the negotiation, preparation or execution of this Agreement or any Ancillary Documents, the performance of their respective its covenants or agreements in this Agreement or any Ancillary Document or the consummation of the transactions contemplated hereby Transactions (including, for the avoidance of doubt, the Company Expenses and any Liabilities arising out of, or thereby and related to, any Proceeding related to this Agreement, the Ancillary Documents or the Transactions, including any shareholder demand or other shareholder Proceedings (including derivative claims) arising out of, or related to, any of the foregoing), (iii) set forth or disclosed in the Company Financial Statements, (iv) for Liabilities that have arisen since the Latest Balance Sheet in the ordinary course of business (and not as a result of a breach of any Contract by any Group Company), (v) that are not incurred with the consent of FEAC or (vi) that are not, and would not reasonably be expected to be, individually or in the aggregate, material to the Group Companies, taken as a whole, no Group the Company has and its Subsidiaries do not have any Liabilities of the type that would be required to be set forth on included in a balance sheet prepared in accordance with GAAPGAAP or disclosed in the notes thereto, except in connection with the Transactions.
(de) The Group Companies have Company has established and maintain systems of internal accounting controls with respect to the Company and its Subsidiaries that are designed to provide, in all material respects, reasonable assurance that (i) all transactions are executed in accordance with management’s authorization and (ii) all transactions are recorded as necessary to permit preparation of proper and accurate financial statements in accordance with GAAP and to maintain accountability for the Group CompaniesCompany and its Subsidiaries’ assets. The Group Companies Company and its Subsidiaries maintain and, for all periods covered by the Company Financial Statements, have maintained books and records of the Group Companies Company and its Subsidiaries in the ordinary course of business that are accurate and complete and reflect the revenues, expenses, assets and liabilities of the Group Companies Company and its Subsidiaries, in each case in all material respects.
(ef) Except as set forth in Section 3.4(e) of Neither the Company Disclosure Schedule, since the incorporation nor any of the Company, no Group Company its Subsidiaries has received any written complaint, allegation, assertion or claim that there is (i) to the Company’s knowledge, “significant deficiency” in the internal controls over financial reporting of the Group CompaniesCompany and its Subsidiaries, (ii) to the Company’s knowledge, a “material weakness” in the internal controls over financial reporting of the Group Companies Company and its Subsidiaries or (iii) fraudfraud or corporate misappropriation, whether or not material, that involves management or other employees of the Group Companies Company or its Subsidiaries who have a significant role in the internal controls over financial reporting of the Group CompaniesCompany and its Subsidiaries.
Appears in 1 contract
Sources: Business Combination Agreement (Forbion European Acquisition Corp.)
Financial Statements; Undisclosed Liabilities. (a) The Company has made available to HighCape a true and complete copy of (i) the audited consolidated unaudited balance sheets of the Group Companies Company as of December 31, 2019, 2013 and the related audited consolidated statements of operations and comprehensive loss, convertible preferred stock and stockholders’ deficit and cash flows of the Group Companies for each of the periods then ended, (ii) the unaudited consolidated balance sheets of the Group Companies as of December 31, 20202014, and the related unaudited consolidated statements of operations and comprehensive loss, convertible preferred stock and stockholders’ deficit and cash flows of the Group Companies income for the twelve (12)-month period years then ended, and (iii) the unaudited consolidated balance sheets of the Group Companies as of December 31, 2019 and December 31, 2020 ended (the “Latest Balance SheetPrevious Accounts”) are as set forth in Section 2.6(a)(i) of the Disclosure Letter. The Previous Accounts have been prepared in accordance with GAAP. The unaudited balance sheet of the Company as of September 30, 2015 and the related unaudited consolidated statements statement of operations and comprehensive loss, convertible preferred stock and stockholders’ deficit and cash flows income for the nine-month period then ended are as set forth in Section 2.6(a)(ii) of the Group Companies for each Disclosure Letter. The Most Recent Financial Statements were properly prepared in accordance with GAAP, as modified or supplemented by the accounting principles and policies set forth on Section 2.6(a)(iii) of the periods then ended (clauses (i), (ii)Disclosure Letter, and subject to year-end adjustments that will not be material and the lack of footnotes thereto.
(iiib) The financial statements described in Section 2.6(a) are collectively, collectively referred to as the “Financial Statements”), each of which are attached as Section 3.4(a) of the Company Disclosure Schedules. Each of the .” The Financial Statements as of and for the nine-month period ended September 30, 2015 are referred to as the “Most Recent Financial Statements” and the balance sheet included therein is referred to as the “Most Recent Balance Sheet.”
(including the notes theretoc) (A) was prepared in accordance with GAAP applied on a consistent basis throughout the periods indicated (except as may be indicated in the notes thereto), (B) fairly presentsThe Financial Statements present fairly, in all material respects, the financial position, position of the Company at the respective dates thereof and the results of operations and cash flows of the Group Companies as at the date thereof and for the period periods indicated therein, except as otherwise specifically noted therein, and (C) in the case of the Financial Statements included in clause (iii) only, were prepared therein in accordance with GAAP, as modified or supplemented by the standards accounting principles and policies set forth on Section 2.6(a)(iii) of the PCAOBDisclosure Letter.
(d) All accounts receivable, notes receivable, and comply other receivables of the Company are reflected properly on its Books and Records and are valid receivables subject to no setoffs or counterclaims. The accounts payable and accruals of the Company have arisen in bona fide arm’s-length transactions in the ordinary course of business, and the Company has been paying its accounts payable as and when due. There are no unpaid invoices or bills representing amounts alleged to be owed by the Company, or other alleged obligations of the Company, which the Company has disputed or determined to dispute or refuse to pay. The Books and Records have been kept in accordance with reasonable business practices, have complied in all material respects with the all applicable accounting requirements Legal Requirements, and with the rules reflect only actual transactions. True, correct and regulations complete copies of the SEC, the Exchange Act Books and the Securities Act in effect as of the respective dates thereof (including Regulation S-X or Regulation S-K, as applicable)Records have been made available to Buyer and its representatives.
(be) The audited consolidated balance sheets system of internal controls over financial reporting used by the Group Companies as of December 31, 2019 and December 31, 2020, and the related audited consolidated statements of operations and comprehensive loss, convertible preferred stock and stockholders’ deficit and cash flows of the Group Companies for each of the periods then ended (the “Closing Company Audited Financial Statements”), when delivered following the date of this Agreement is sufficient in accordance with Section 5.17, all material respects to provide reasonable assurance (i) will be prepared that transactions are recorded as necessary to permit preparation of financial statements in accordance conformity with GAAP applied on a consistent basis throughout the periods indicated (except as may be indicated in the notes thereto)GAAP, (ii) will fairly present, in all material respects, the financial position, results of operations that receipts and cash flows of the Group Companies as at the date thereof and for the period indicated therein, except as otherwise specifically noted therein, (iii) will be audited expenditures are executed only in accordance with the standards authorization of management and (iii) regarding prevention or timely detection of the PCAOB and will contain an unqualified report unauthorized acquisition, use or disposition of the Company’s auditors, and (iv) will comply in all material respects with assets that would materially affect the applicable accounting requirements and with the rules and regulations of the SEC, the Exchange Act and the Securities Act in effect as of the respective dates thereof (including Regulation S-X or Regulation S-K, as applicable)Financial Statements.
(cf) Except Other than to the extent disclosed and accrued for in the Most Recent Financial Statements, the Company has no Liabilities except for: (i) as set forth on the face of the Latest Balance Sheet, (ii) for Liabilities incurred in the ordinary course of business since the Latest Balance Sheet Date (none of which is a Liability for breach of contract, breach of warranty, tort, infringement or violation of Law), (iii) for Liabilities incurred in connection with the negotiation, preparation or execution of this Agreement or any Ancillary Documents, the performance of their respective covenants or agreements in this Agreement or any Ancillary Document or the consummation date of the transactions contemplated hereby Most Recent Financial Statements and that will be fully reflected in or thereby and (iv) reserved for Liabilities that are not and would not reasonably be expected to be, individually or in the aggregate, material to Final Adjustment Amount and the Group Companies, taken as a whole, no Group Company has any Liabilities of the type required to be set forth on a balance sheet in accordance with GAAP.
(d) The Group Companies have established and maintain systems of internal accounting controls that are designed to provide, in all material respects, reasonable assurance that (i) all transactions are executed in accordance with management’s authorization and calculation thereof; (ii) all transactions are recorded as necessary to permit preparation of proper and accurate financial statements in accordance with GAAP and to maintain accountability for the Group Companies’ assets. The Group Companies maintain andLiabilities identified in, for all periods covered by the Financial Statementsor arising under, have maintained books and records Contracts of the Group Companies Company in the ordinary course of business that are accurate and complete and reflect the revenues, expenses, assets and liabilities of the Group Companies in all material respects.
(e) Except as set forth in Section 3.4(e) of but not Liabilities for breaches by the Company Disclosure Scheduleor Seller, since as the incorporation of the Company, no Group Company has received any written complaint, allegation, assertion or claim that there is (i) “significant deficiency” in the internal controls over financial reporting of the Group Companies, (ii) a “material weakness” in the internal controls over financial reporting of the Group Companies or case may be); (iii) fraudLiabilities that would not have been required to be disclosed in, whether provided for, reflected in, reserved against or not material, that involves management or other employees of the Group Companies who have a significant role otherwise described in the internal controls over financial reporting of Financial Statements (including any notes thereto) in accordance with GAAP; and (iv) Liabilities resulting from pending, or (to the Group CompaniesCompany’s Knowledge) threatened Legal Proceedings disclosed in Section 2.6(f) the Disclosure Letter.
Appears in 1 contract
Financial Statements; Undisclosed Liabilities. (a) The Company has made available to HighCape Atlas a true and complete copy of (i) the audited consolidated unaudited balance sheets sheet of the Group Companies as of December 31, 2019, and the related audited consolidated statements of operations and comprehensive loss, convertible preferred stock and stockholders’ deficit and cash flows of the Group Companies for each of the periods then ended, (ii) the unaudited consolidated balance sheets of the Group Companies as of December 31, 2020, and the related unaudited consolidated statements of operations and comprehensive loss, convertible preferred stock and stockholders’ deficit and cash flows of the Group Companies for the twelve (12)-month period then ended, and (iii) the unaudited consolidated balance sheets of the Group Companies Company as of December 31, 2019 and related unaudited consolidated statements of operations of the Company for the year then ended and (ii) the unaudited balance sheet of the Company as of December 31, 2020 (the “Latest Balance Sheet”) and the related unaudited consolidated statements of operations and comprehensive loss, convertible preferred stock and stockholders’ deficit and cash flows of the Group Companies Company for each of the periods year then ended (the financial statements described in clauses (i), ) and (ii), and (iii) are collectively, the “Financial Statements”), each of which Financial Statements are attached as Section 3.4(a) of the Company Disclosure Schedules. Each of the The Financial Statements (including the notes thereto) (A) was were prepared in accordance with GAAP applied on a consistent basis throughout the periods indicated (except as may be specifically indicated in the notes thereto), ) and (B) fairly presentspresent, in all material respects, the financial position, position aand results of operations and cash flows of the Group Companies Company as at the date thereof and for the period indicated therein, except as otherwise specifically noted therein, and (C) in the case of the Financial Statements included in clause (iii) only, were prepared in accordance with the standards of the PCAOB, and comply in all material respects with the applicable accounting requirements and with the rules and regulations of the SEC, the Exchange Act and the Securities Act in effect as of the respective dates thereof (including Regulation S-X or Regulation S-K, as applicable).
(b) The audited consolidated balance sheets Each of the Group Companies financial statements or similar reports required to be included in the Registration Statement / Proxy Statement or any other filings to be made by the Company with the SEC in connection with the transactions contemplated by this Agreement or any Ancillary Document (the financial statements described in this sentence, which the Parties acknowledge shall, with respect to historical financial statements, solely consist of the audited financial statements as of and for the years ended December 31, 2019 and December 31, 2020, along with unaudited financial statements as of and for the related audited consolidated statements of operations and comprehensive lossapplicable quarterly interim periods thereafter, convertible preferred stock and stockholders’ deficit and cash flows of the Group Companies for each of the periods then ended (the “Closing Company Audited Financial Statements”), ) when delivered following the date of this Agreement in accordance with Section 5.17, (i) will be prepared in accordance with GAAP applied on a consistent basis throughout the periods indicated (except except, in the case of any audited financial statements, as may be specifically indicated in the notes thereto and subject to, in the case of any unaudited financial statements, normal year end audit adjustments (none of which is expected to be, individually or in the aggregate, material) and the absence of notes thereto), (ii) will fairly present, in all material respects, the financial position, results of operations operations, stockholders’ deficit and cash flows of the Group Companies Company as at the date thereof and for the period indicated thereintherein (subject to, except as otherwise specifically noted thereinin the case of any unaudited financial statements, normal year end audit adjustments (none of which is expected to be, individually or in the aggregate, material)), (iii) in the case of any audited financial statements, will be audited in accordance with the standards of the PCAOB and will contain an unqualified report of the Company’s auditors, auditors and (iv) will comply in all material respects with the applicable accounting requirements and with the rules and regulations of the SEC, the Exchange Act and the Securities Act in effect as of the respective dates thereof date of such delivery (including Regulation S-X or Regulation S-K, as applicable).
(c) Except (i) as set forth on the face of the Latest Balance Sheet, (ii) for Liabilities incurred in the ordinary course of business since the date of the Latest Balance Sheet Date (none of which is are Liabilities related to a Liability for breach of contractContract, breach of warranty, tort, infringement infringement, Proceeding or violation of Law), (iii) for Liabilities incurred in connection with the negotiation, preparation or execution of this Agreement or any Ancillary Documents, the performance by the Company of their respective its covenants or agreements in this Agreement or any Ancillary Document to which it is or will be a party or the consummation of the transactions contemplated hereby or thereby (including, for the avoidance of doubt, any Liabilities arising out of, or related to, any Proceeding related to this Agreement, the Ancillary Documents or the transactions contemplated hereby or thereby, including any stockholder demand or other stockholder Proceedings (including derivative claims) arising out of, or related to, any of the foregoing), and (iv) for Liabilities that are not and would not reasonably be expected to be, individually or in the aggregate, material to the Group CompaniesCompany, taken as a whole, no Group the Company has any no Liabilities of the type required to be set forth on a balance sheet in accordance with GAAP.
(d) The Group Companies have Company has established and maintain maintains systems of internal accounting controls that are designed to provide, in all material respects, reasonable assurance that (i) all transactions are executed in accordance with management’s authorization and (ii) all transactions are recorded as necessary to permit preparation of proper and accurate financial statements in accordance with GAAP and to maintain accountability for the Group Companies’ Company’s assets. The Group Companies maintain Company maintains and, for all periods covered by the Financial Statements and the Closing Company Financial Statements, have has maintained books and records of the Group Companies Company in the ordinary course of business that are accurate and complete and reflect the revenues, expenses, assets and liabilities of the Group Companies Company in all material respects.
(e) Except as set forth in Section 3.4(e) of Since the Company’s incorporation, the Company Disclosure Schedule, since the incorporation of the Company, no Group Company has not received any written complaint, allegation, assertion or claim that there is (i) “significant deficiency” in the internal controls over financial reporting of the Group CompaniesCompany, (ii) a “material weakness” in the internal controls over financial reporting of the Group Companies Company or (iii) fraud, whether or not material, that involves management or other employees of the Group Companies Company who have a significant role in the internal controls over financial reporting of the Group CompaniesCompany.
Appears in 1 contract
Sources: Business Combination Agreement (Atlas Crest Investment Corp.)
Financial Statements; Undisclosed Liabilities. (a) The Company has made available to HighCape CHFW a true and complete copy of (i) the draft audited consolidated balance sheets of the Group Companies as of December 31, 20192019 and December 31, 2020 (the “Latest Balance Sheet”) and the related audited consolidated statements of operations and comprehensive loss, convertible preferred stock and stockholders’ deficit and cash flows of the Group Companies for each of the periods then ended, (ii) the unaudited consolidated balance sheets of the Group Companies as of December 31, 2020, and the related unaudited consolidated statements of operations and comprehensive loss, convertible preferred stock and stockholders’ deficit and cash flows of the Group Companies for the twelve (12)-month period then ended, and (iii) the unaudited consolidated balance sheets of the Group Companies as of December 31, 2019 and December 31, 2020 (the “Latest Balance Sheet”) and the related unaudited consolidated statements of operations and comprehensive loss, convertible preferred stock and stockholders’ deficit and cash flows of the Group Companies for each of the periods years then ended (clauses (i), (ii), and (iii) are collectively, the “Financial Statements”), each of which are attached as Section 3.4(a) of the Company Disclosure Schedules. Each of the Financial Statements (including the notes thereto) (A) was prepared in accordance with GAAP applied on a consistent basis throughout the periods indicated (except as may be indicated in the notes thereto), and (B) fairly presents, in all material respects, the financial position, results of operations and cash flows of the Group Companies as at the date thereof and for the period indicated therein, except as otherwise specifically noted therein. When the final, audited Financial Statements (including the notes thereto) are delivered following the date of this Agreement in accordance with Section 5.17, each Financial Statement shall (A) be prepared in accordance with GAAP applied on a consistent basis throughout the periods indicated (except as may be indicated in the notes thereto), (B) fairly present, in all material respects, the financial position, results of operations and cash flows of the Group Companies as at the date thereof and for the period indicated therein, except as otherwise specifically noted therein, (C) in the case of the Financial Statements included in clause (iii) only, were prepared have been audited in accordance with the standards of the PCAOB, PCAOB and contain an unqualified report of the Company’s auditors and (D) comply in all material respects with the applicable accounting requirements and with the rules and regulations of the SEC, the Exchange Act and the Securities Act in effect as of the respective dates thereof (including Regulation S-X or Regulation S-K, as applicable).
(b) The audited consolidated balance sheets of the Group Companies as of December 31, 2019 and December 31, 2020, and the related audited consolidated statements of operations and comprehensive loss, convertible preferred stock and stockholders’ deficit and cash flows of the Group Companies for each of the periods then ended (the “Closing Company Audited Financial Statements”), when delivered following the date of this Agreement in accordance with Section 5.17, (i) will be prepared in accordance with GAAP applied on a consistent basis throughout the periods indicated (except as may be indicated in the notes thereto), (ii) will fairly present, in all material respects, the financial position, results of operations and cash flows of the Group Companies as at the date thereof and for the period indicated therein, except as otherwise specifically noted therein, (iii) will be audited in accordance with the standards of the PCAOB and will contain an unqualified report of the Company’s auditors, and (iv) will comply in all material respects with the applicable accounting requirements and with the rules and regulations of the SEC, the Exchange Act and the Securities Act in effect as of the respective dates thereof (including Regulation S-X or Regulation S-K, as applicable).
(c) Except (i) as set forth on the face of the Latest Balance Sheet, (ii) for Liabilities incurred in the ordinary course of business since the date of the Latest Balance Sheet Date (none of which is a Liability for breach of contract, breach of warranty, tort, infringement or violation of Law), (iii) for Liabilities incurred in connection with the negotiation, preparation or execution of this Agreement or any Ancillary Documents, the performance of their respective covenants or agreements in this Agreement or any Ancillary Document or the consummation of the transactions contemplated hereby or thereby and (iv) for Liabilities that are not and would not reasonably be expected to be, individually or in the aggregate, material to the Group Companies, taken as a whole, no Group Company has any Liabilities of the type required to be set forth on a balance sheet in accordance with GAAP.
(dc) The Group Companies have established and maintain systems of internal accounting controls that are designed to provide, in all material respects, reasonable assurance that (i) all transactions are executed in accordance with management’s authorization and (ii) all transactions are recorded as necessary to permit preparation of proper and accurate financial statements in accordance with GAAP and to maintain accountability for the Group Companies’ assets. The Group Companies maintain and, for all periods covered by the Financial Statements, have maintained books and records of the Group Companies in the ordinary course of business that are accurate and complete and reflect the revenues, expenses, assets and liabilities of the Group Companies in all material respects.
(ed) Except as set forth in Section 3.4(e3.4(d) of the Company’s Disclosure Schedule since January 1, 2019, neither any Group Company Disclosure Schedule, since nor the incorporation independent auditors of the CompanyGroup Companies has identified any “material weakness” or “significant deficiency” in the internal controls over financial reporting of the Group Companies. Since January 1, 2019, no Group Company has received any written complaint, allegation, assertion or claim that there is (i) “significant deficiency” in the internal controls over financial reporting of the Group Companies, (ii) a “material weakness” in the internal controls over financial reporting of the Group Companies or (iii) fraud, whether or not material, that involves management or other employees of the Group Companies who have a significant role in the internal controls over financial reporting of the Group Companies.
Appears in 1 contract
Sources: Business Combination Agreement (Consonance-HFW Acquisition Corp.)
Financial Statements; Undisclosed Liabilities. (a) The Company has made available to HighCape a true and complete copy of Attached hereto as Schedule 4.5(a) are (i) the audited consolidated balance sheets unaudited statement of working capital (the “Working Capital Statement”) of the Group Companies First Territory Business as of December 31September 30, 20192005 (the “Base Balance Sheet Date”), and the related audited consolidated statements unaudited pro forma statement of operations revenues and comprehensive loss, convertible preferred stock and stockholders’ deficit and cash flows direct expenses of the Group Companies for each of the periods then ended, (ii) the unaudited consolidated balance sheets of the Group Companies as of December 31, 2020, and the related unaudited consolidated statements of operations and comprehensive loss, convertible preferred stock and stockholders’ deficit and cash flows of the Group Companies First Territory Business for the twelve nine (12)-month 9)-month period then ended, and (iiiii) the an unaudited consolidated balance sheets Schedule setting forth revenues and gross profits of the Group Companies as First Territory Business for the months of December 31October, 2019 November and December 31December, 2020 2005 (the “Latest Balance Sheet”) and the related unaudited consolidated financial statements of operations and comprehensive loss, convertible preferred stock and stockholders’ deficit and cash flows of the Group Companies for each of the periods then ended (clauses referred to in (i), (ii), and (iii) are collectively, the “Financial Statements” and the financial schedules referred to in (ii), the “Financial Schedules”). The Financial Statements have been reviewed by the Seller Entities’ independent certified public accountants and by the Seller Entities’ chief financial officer. The Financial Statements have been derived from a balance sheet and income statement prepared in accordance with GAAP. The Financial Schedules have been derived from an income statement prepared in accordance with GAAP.
(b) Except as set forth in Schedule 4.5(b), each of which are attached as Section 3.4(a) of the Company Disclosure Schedules. Each of the Financial Statements and Financial Schedules (including the notes theretoi) (A) was have been derived from financial statements prepared in accordance with GAAP using the accrual method of accounting applied on a consistent basis throughout consistently during the periods indicated covered thereby (except as may be indicated in the notes thereto), (B) fairly presents, in all material respects, the financial position, results of operations and cash flows of the Group Companies as at the date thereof and for the period indicated therein, except as otherwise specifically noted therein, and (C) in the case of that the Financial Statements included in clause (iii) only, were prepared in accordance with the standards of the PCAOB, and comply in all material respects with the applicable accounting requirements Financial Schedules do not include footnote disclosure and with the rules and regulations of the SEC, the Exchange Act and the Securities Act in effect as of the respective dates thereof (including Regulation Sare subject to normal year-X or Regulation S-K, as applicable).
(b) The audited consolidated balance sheets of the Group Companies as of December 31, 2019 and December 31, 2020, and the related audited consolidated statements of operations and comprehensive loss, convertible preferred stock and stockholders’ deficit and cash flows of the Group Companies for each of the periods then ended (the “Closing Company Audited Financial Statements”), when delivered following the date of this Agreement in accordance with Section 5.17, (i) will be prepared in accordance with GAAP applied on a consistent basis throughout the periods indicated (except as may be indicated end audit adjustments that are not in the notes theretoaggregate material), (ii) will fairly present, are complete and correct in all material respects, respects and present fairly in all material respects the financial position, results of operations and cash flows working capital of the Group Companies as First Territory Business, at the date thereof of said statement and the results of its operations (revenues and direct expenses) for the period indicated therein, except as otherwise specifically noted thereincovered thereby, (iii) will be audited in accordance contain and reflect adequate provisions for all reasonably anticipated liabilities with respect to the standards of the PCAOB and will contain an unqualified report of the Company’s auditorsperiod then ended, and (iv) will comply with respect to Material Contracts and commitments for the sale of products or other goods or services by the Seller Entities in the First Territory Business, contain and reflect adequate reserves for all material respects losses and costs and expenses in excess of expected receipts. The accounting policies, including without limitation, those policies related to revenue recognition, utilized by the Seller Entities in preparing the Seller Entities’ financial statements are in conformity with the applicable accounting requirements and with the rules and regulations of the SEC, the Exchange Act and the Securities Act in effect as of the respective dates thereof (including Regulation S-X or Regulation S-K, as applicable)GAAP.
(c) Except As of the date hereof and as of the First Closing Date, the Seller Entities do not and will not have any liabilities of any nature, whether accrued, absolute, contingent or otherwise, asserted or unasserted, known or unknown (including without limitation liabilities as guarantor or otherwise with respect to obligations of others, or liabilities for taxes due or then accrued or to become due or contingent or potential liabilities relating to activities of the Seller Entities in the First Territory Business or the conduct of the First Territory Business prior to the date hereof), whether or not of a type required to be shown on a balance sheet prepared in accordance with GAAP, except liabilities (i) as set forth stated or adequately reserved against on the face Working Capital Statement (only to the extent of the Latest Balance Sheetamount provided for therein), or (ii) for Liabilities incurred in the ordinary course of business since consistent with the Latest Balance Sheet Date Seller Entities’ past customs and practices (none “the Ordinary Course of which is a Liability for breach Business”) (including with respect to quantity and frequency) after the date of contract, breach of warranty, tort, infringement or violation of Law), this Agreement to the extent permitted by this Agreement; and (iii) for Liabilities incurred to the extent it is included in connection with NF Indebtedness used in the negotiation, preparation or execution of this Agreement or any Ancillary Documents, the performance of their respective covenants or agreements in this Agreement or any Ancillary Document or the consummation calculation under Section 2.3. As of the transactions contemplated hereby New Facility Closing Date, neither ABON nor Rich Horizons will have any liabilities of any nature, whether accrued, absolute, contingent or thereby and otherwise, asserted or unasserted, known or unknown (iv) including without limitation liabilities as guarantor or otherwise with respect to obligations of others, or liabilities for Liabilities that are taxes due or then accrued or to become due or contingent or potential liabilities, regardless of whether claims in respect thereof had been asserted as of such date), whether or not and would not reasonably be expected to be, individually or in the aggregate, material to the Group Companies, taken as of a whole, no Group Company has any Liabilities of the type required to be set forth shown on a balance sheet prepared in accordance with GAAP.
(d) The Group Companies As of the date hereof and as of the First Closing, except for the Assumed Liabilities, the Seller Entities do not and will not have established and maintain systems of internal accounting controls that are designed any indebtedness for borrowed money (including without limitation, obligations under leases required to provide, in all material respects, reasonable assurance that (i) all transactions are executed be capitalized in accordance with management’s authorization and GAAP) for which Buyer could become liable. As of the New Facility Closing except as set forth on Schedule 4.5(d), neither ABON nor Rich Horizons will have any indebtedness for borrowed money (ii) all transactions are recorded as necessary including without limitation, obligations under leases required to permit preparation of proper and accurate financial statements be capitalized in accordance with GAAP GAAP) and to maintain accountability for the Group Companies’ assets. The Group Companies maintain and, for all periods covered by the Financial Statements, have maintained books and records no part of the Group Companies in the ordinary course of business that are accurate differences between ABON’s authorized registered capital and complete and reflect the revenues, expenses, assets and liabilities of the Group Companies in all material respectstotal investment shall have been utilized.
(e) Except as set forth in Section 3.4(e) of the Company Disclosure Schedule, since the incorporation of the Company, no Group Company has received any written complaint, allegation, assertion or claim that there is (i) “significant deficiency” in the internal controls over financial reporting of the Group Companies, (ii) a “material weakness” in the internal controls over financial reporting of the Group Companies or (iii) fraud, whether or not material, that involves management or other employees of the Group Companies who have a significant role in the internal controls over financial reporting of the Group Companies.
Appears in 1 contract
Sources: Acquisition Agreement (Inverness Medical Innovations Inc)
Financial Statements; Undisclosed Liabilities. (a) The Company has made available to HighCape a Attached hereto as EXHIBIT C are true and complete copy copies of (i) the audited consolidated balance sheets of the Group Companies as of December 31, 2019, and the related audited consolidated statements of operations and comprehensive loss, convertible preferred stock shareholders equity and stockholders’ deficit and of cash flows of flow for the Group Companies Company for each of the periods then ended, (ii) the unaudited consolidated balance sheets of the Group Companies fiscal year ended as of September 30, 1998, 1999 and 2000, in each case audited by Smith, Jackson, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, PLLC (the "ANNUAL STATEMENTS"), and the balance sheet and related statements of operations for the three months ended December 31, 20202000 (the "INTERIM STATEMENTS," and, and together with the related unaudited consolidated statements of operations and comprehensive lossAnnual Statements, convertible preferred stock and stockholders’ deficit and cash flows the "FINANCIAL Statements"). The September 30, 2000 balance sheet included in EXHIBIT C attached hereto constitutes one of the Group Companies for Financial Statements and is referred to herein as the twelve "2000 BALANCE SHEET."
(12)-month period then ended, and (iiib) the unaudited consolidated balance sheets Each of the Group Companies as of December 31, 2019 Financial Statements has been prepared based on the books and December 31, 2020 (the “Latest Balance Sheet”) and the related unaudited consolidated statements of operations and comprehensive loss, convertible preferred stock and stockholders’ deficit and cash flows of the Group Companies for each of the periods then ended (clauses (i), (ii), and (iii) are collectively, the “Financial Statements”), each of which are attached as Section 3.4(a) records of the Company Disclosure Schedulesin accordance with GAAP and the Company's normal accounting practices, consistent with past practices and each other, which practices are summarized on SCHEDULE 4.07(b) hereto. Each of the Financial Statements (including the notes theretoi) (A) was prepared in accordance with GAAP applied on a consistent basis throughout the periods indicated (except as may be indicated in the notes thereto), (B) presents fairly presents, in all material respects, the financial positioncondition, results of operations and statements of cash flows flow of the Group Companies Company as at of the date thereof dates indicated or the periods indicated; (ii) contains and reflects all necessary adjustments, accruals, provisions and allowances for a fair presentation of its financial condition and the results of its operations for the period indicated therein, except as otherwise specifically noted therein, and (C) in the case of the Financial Statements included in clause periods covered by such financial statement; (iii) onlyto the extent applicable, were prepared in accordance contains and reflects adequate provisions for all reasonably anticipated liabilities for all Taxes with the standards of the PCAOB, and comply in all material respects with the applicable accounting requirements and with the rules and regulations of the SEC, the Exchange Act and the Securities Act in effect as of the respective dates thereof (including Regulation S-X or Regulation S-K, as applicable).
(b) The audited consolidated balance sheets of the Group Companies as of December 31, 2019 and December 31, 2020, and the related audited consolidated statements of operations and comprehensive loss, convertible preferred stock and stockholders’ deficit and cash flows of the Group Companies for each of respect to the periods then ended (the “Closing Company Audited Financial Statements”), when delivered following the date of this Agreement in accordance with Section 5.17, (i) will be prepared in accordance with GAAP applied on a consistent basis throughout the periods indicated (except as may be indicated in the notes thereto), (ii) will fairly present, in and all material respects, the financial position, results of operations and cash flows of the Group Companies as at the date thereof and for the period indicated therein, except as otherwise specifically noted therein, (iii) will be audited in accordance with the standards of the PCAOB and will contain an unqualified report of the Company’s auditors, prior periods; and (iv) will comply with respect to contracts and commitments for the sale of goods or the provision of services by the Company, contains and reflects adequate reserves for all reasonably anticipated losses and costs and expenses in all material respects with excess of expected receipts; PROVIDED, HOWEVER, that in each case the applicable accounting requirements and with Interim Statements are subject to the rules and regulations of the SEC, the Exchange Act and the Securities Act normal year end adjustments described in effect as of the respective dates thereof (including Regulation S-X or Regulation S-K, as applicableSCHEDULE 4.07(b).
(c) Except (i) as set forth on the face SCHEDULE 4.07(c), there are no Liabilities of the Latest Company other than: (i) any Liability accrued as a Liability on the 2000 Balance Sheet, Sheet and (ii) for Liabilities incurred since the date of the 2000 Balance Sheet in the ordinary course of business since the Latest Balance Sheet Date (none of which is a Liability for breach of contractthat do not, breach of warranty, tort, infringement or violation of Law), (iii) for Liabilities incurred in connection with the negotiation, preparation or execution of this Agreement or any Ancillary Documents, the performance of their respective covenants or agreements in this Agreement or any Ancillary Document or the consummation of the transactions contemplated hereby or thereby and (iv) for Liabilities that are not and would not reasonably be expected to bewill not, individually or in the aggregate, material to the Group Companies, taken as have a whole, no Group Company has any Liabilities of the type required to be set forth on a balance sheet in accordance with GAAPMaterial Adverse Effect.
(d) Except as set forth on SCHEDULE 4.07(d) in respect of capitalized lease obligations, no Debt of the Company will be outstanding as of the Closing Date.
(e) All accounts receivable of the Company are reflected properly on its books and records, and represent valid obligations arising from bona fide transactions in the ordinary course of business. To the Knowledge of the Company, such accounts receivable are subject to no defenses, claims or rights of setoff. Except as set forth in SCHEDULE 4.07(e), (i) no account debtor is delinquent in its payment by more than sixty (60) days, (ii) no account debtor has refused or threatened to refuse to pay its obligations for any reason, (iii) no account debtor is, to the Knowledge of the Company, insolvent or bankrupt, and (iv) no account receivable is pledged to any third party.
(f) Except as disclosed in SCHEDULE 4.07(f), the Company has (i) discharged its accounts payable and other current liabilities and obligations relating to the business and operations of the Company in accordance with GAAP and consistent with the Company's past practices, but in any event in all cases before materially past due (except when in BONA FIDE dispute as described on SCHEDULE 4.07(f)) and (ii) purchased and maintained inventory in an amount and of a type and character in accordance with GAAP, consistent with the Company's past practices and the reasonable requirements of the business and operations of the Company.
(g) The Group Companies have established Company has maintained (and maintain systems given Parent, Acquisition Sub and its agents access to) its books, records and accounts, which are complete and correct in all material respects and accurately reflect the activities of internal accounting controls that are designed to provide, the Company in all material respects, reasonable assurance that (i) all transactions are executed and which have been kept in accordance with management’s authorization and (ii) all transactions are recorded as necessary to permit preparation of proper and accurate financial statements in accordance with GAAP and to maintain accountability for the Group Companies’ assetssound business practices. The Group Companies maintain and, for all periods covered by copies of the Financial Statements, have maintained minute books and similar records of the Group Companies in the ordinary course of business that are Company previously delivered to Parent contain accurate and complete records of all material actions previously taken by the shareholders, board of directors and reflect the revenues, expenses, assets and liabilities committees of the Group Companies in all material respectsboard of directors of the Company.
(eh) Except as set forth in Section 3.4(eSCHEDULE 4.07(h) of the Company Disclosure Schedule, since the incorporation of describes the Company's backlog of orders from customers as of February 28, no Group Company has received any written complaint, allegation, assertion or claim that there is (i) “significant deficiency” in the internal controls over financial reporting of the Group Companies, (ii) a “material weakness” in the internal controls over financial reporting of the Group Companies or (iii) fraud, whether or not material, that involves management or other employees of the Group Companies who have a significant role in the internal controls over financial reporting of the Group Companies2001.
Appears in 1 contract
Sources: Merger Agreement (Magnetek Inc)
Financial Statements; Undisclosed Liabilities. (a) The Company has made available to HighCape a true and complete copy Attached as Exhibit A are copies of the following: (i) the audited consolidated unaudited balance sheets of the Group Acquired Companies as of December 31, 20192022, December 31, 2023 and December 31, 2024, and the related audited consolidated unaudited profit and loss statements of operations for the fiscal years then ended (the “Annual Financial Statements”); and comprehensive loss, convertible preferred stock and stockholders’ deficit and cash flows of the Group Companies for each of the periods then ended, (ii) the unaudited consolidated balance sheets of the Group Acquired Companies as of December January 31, 20202025, and the related unaudited consolidated profit and loss statements of operations and comprehensive loss, convertible preferred stock and stockholders’ deficit and cash flows of the Group Companies for the twelve one (12)-month period 1) month then endedended (such balance sheet, and (iii) the unaudited consolidated balance sheets of the Group Companies as of December 31, 2019 and December 31, 2020 (the “Latest Most Recent Balance Sheet”) and , together with the related unaudited consolidated statements of operations and comprehensive loss, convertible preferred stock and stockholders’ deficit and cash flows of the Group Companies for each of the periods then ended (clauses (i), (ii), and (iii) are collectivelystatements, the “Interim Financial Statements”), each of which are attached as Section 3.4(a) of the Company Disclosure Schedules. Each of the Financial Statements (including the notes thereto) (Ai) was has been prepared in accordance with GAAP consistently applied throughout the periods covered thereby, with the exception of the absence of normal year-end audit adjustments (which will not be material individually or in the aggregate) and footnotes required by GAAP in the Interim Financial Statements, (ii) has been prepared based on and are consistent with the books and records of the Acquired Companies (which books and records are correct and complete in all material respects), (iii) has been prepared in accordance with the past practice of the Acquired Companies on a consistent basis throughout the periods indicated (except as may be indicated in the notes thereto)across periods, (Biv) fairly presents, are correct and complete in all material respectsrespects and (v) fairly presents in all material respects the assets, the liabilities, financial positionposition and condition, results of operations operations, and cash flows of the Group Acquired Companies as at of the date thereof dates and for the period periods indicated therein. The Acquired Companies maintain a system of internal accounting controls sufficient to provide reasonable assurance that transactions are recorded as necessary to permit preparation of financial statements in conformity with the Agreed Principles. None of the Acquired Companies has, except as otherwise specifically noted therein, and (C) in the case last five (5) years, identified or been made aware of (x) any significant deficiency or material weakness in the design or operation of internal controls over financial reporting utilized by the Acquired Companies, (y) any illegal act or fraud, whether or not material, that involves the management of the Financial Statements included in clause Acquired Companies or (iiiz) only, were prepared in accordance with the standards any claim or allegation regarding any of the PCAOB, and comply in all material respects with the applicable accounting requirements and with the rules and regulations of the SEC, the Exchange Act and the Securities Act in effect as of the respective dates thereof (including Regulation S-X or Regulation S-K, as applicable)foregoing.
(b) The audited consolidated balance sheets of Acquired Companies do not have any material Liabilities, except for Liabilities: (i) specifically accrued for or reserved against in the Group Companies as of December 31, 2019 and December 31, 2020, and Most Recent Balance Sheet or expressly disclosed in the related audited consolidated statements of operations and comprehensive loss, convertible preferred stock and stockholders’ deficit and cash flows of notes to the Group Companies for each of the periods then ended (the “Closing Company Audited Financial Statements”), when delivered following to the extent so specifically accrued for or reserved against; (ii) incurred since the date of this Agreement in accordance with Section 5.17, (i) will be prepared in accordance with GAAP applied on a consistent basis throughout the periods indicated (except as may be indicated Most Recent Balance Sheet in the notes thereto), (ii) will fairly present, in all material respects, the financial position, results Ordinary Course of operations and cash flows of the Group Companies as at the date thereof and for the period indicated therein, except as otherwise specifically noted therein, (iii) will be audited in accordance with the standards of the PCAOB and will contain an unqualified report of the Company’s auditors, and (iv) will comply in all material respects with the applicable accounting requirements and with the rules and regulations of the SEC, the Exchange Act and the Securities Act in effect as of the respective dates thereof (including Regulation S-X or Regulation S-K, as applicable).
(c) Except (i) as set forth on the face of the Latest Balance Sheet, (ii) for Liabilities incurred in the ordinary course of business since the Latest Balance Sheet Date Business (none of which results from, arises out of, relates to, is a Liability for in the nature of, or was caused by any breach of contract, breach of warranty, tort, infringement or violation of Law), ; (iii) for Liabilities incurred in connection with the negotiation, preparation set forth on Schedule 3.5(b); or execution of this Agreement or any Ancillary Documents, the performance of their respective covenants or agreements in this Agreement or any Ancillary Document or the consummation of the transactions contemplated hereby or thereby and (iv) for Liabilities that are not under this Agreement and would not reasonably be expected to be, individually or in the aggregate, material Ancillary Documents with respect to the Group CompaniesTransaction (other than Liabilities relating to any breach, taken as or any fact or circumstance that, with notice, lapse of time or both, would result in a wholebreach, no Group Company has thereof by any Liabilities Acquired Company).
(c) The inventory of the type required Acquired Companies is merchantable and fit for the purpose for which it was procured or manufactured, and is not slow-moving, obsolete, damaged, or defective, subject to be the reserve for inventory writedown set forth on a balance sheet the Most Recent Balance Sheet as adjusted for the passage of time through the Closing Date in accordance with GAAPthe past custom and practice of the Acquired Companies.
(d) The Group Companies have established and maintain systems of internal accounting controls that are designed to provide, in all material respects, reasonable assurance that (i) all transactions are executed in accordance with management’s authorization and (ii) all transactions are recorded as necessary to permit preparation of proper and accurate financial statements in accordance with GAAP and to maintain accountability for the Group Companies’ assets. The Group Companies maintain and, for all periods covered by the Financial Statements, have maintained books and records of the Group Companies in the ordinary course of business that are accurate and complete and reflect the revenues, expenses, assets and liabilities of the Group Companies in all material respects.
(e) Except as set forth in Section 3.4(e) of the Company Disclosure Schedule, since the incorporation of the Companyon Schedule 3.5(d), no Group Acquired Company has received applied for, or directly or indirectly accepted or received, any written complaint, allegation, assertion or claim that there is (i) “significant deficiency” in the internal controls over financial reporting of the Group Companies, (ii) a “material weakness” in the internal controls over financial reporting of the Group Companies or (iii) fraud, whether or not material, that involves management or other employees of the Group Companies who have a significant role in the internal controls over financial reporting of the Group CompaniesCOVID-19 Aid.
Appears in 1 contract
Sources: Membership Interest Purchase Agreement (Ceco Environmental Corp)
Financial Statements; Undisclosed Liabilities. (a) The Company has made available to HighCape a true and complete copy of Attached hereto as Schedule 3.4(a) are (i) the audited consolidated balance sheets statement of net assets acquired of the Group Companies Business as of December 31, 2019200 (8) (the “Base Balance Sheet”), and the related audited consolidated statements statement of operations revenues and comprehensive loss, convertible preferred stock and stockholders’ deficit and cash flows direct expenses of the Group Companies for each of the periods then ended, (ii) the unaudited consolidated balance sheets of the Group Companies as of December 31, 2020, and the related unaudited consolidated statements of operations and comprehensive loss, convertible preferred stock and stockholders’ deficit and cash flows of the Group Companies Business for the twelve (12)-month period then ended, and (iii) the unaudited consolidated balance sheets of the Group Companies as of December 31, 2019 and December 31, 2020 (the “Latest Balance Sheet”) and the related unaudited consolidated statements of operations and comprehensive loss, convertible preferred stock and stockholders’ deficit and cash flows of the Group Companies for each of the periods year then ended audited by an internationally recognized certified public accounting firm reasonably acceptable to Buyer[, the audit report of which will satisfy Buyer’s obligation to file audited financial statements for the Business on a Current Report on Form 8-K or any successor form](9) (clauses (i), (ii), and (iii) are collectively, the “Financial Statements”), each of which are attached as Section 3.4(aand (ii) an unaudited schedule setting forth revenue and gross profits of the Company Disclosure Business for the months of [all periods through second most recent month end] (the “Financial Schedules”). Each of the The Financial Statements (including have been audited by the notes thereto) (A) was Seller Entities’ independent certified public accountants and have been reviewed by the Seller Entities’ chief financial officer. The Financial Statements have been derived from a balance sheet and income statement prepared in accordance with GAAP applied on a consistent basis throughout the periods indicated (except as may be indicated in the notes thereto), (B) fairly presents, in all material respects, the financial position, results of operations and cash flows of the Group Companies as at the date thereof and for the period indicated therein, except as otherwise specifically noted therein, and (C) in the case of the GAAP. The Financial Statements included in clause (iii) only, were Schedules have been derived from an income statement prepared in accordance with the standards of the PCAOB, and comply in all material respects with the applicable accounting requirements and with the rules and regulations of the SEC, the Exchange Act and the Securities Act in effect as of the respective dates thereof (including Regulation S-X or Regulation S-K, as applicable).
(b) The audited consolidated balance sheets of the Group Companies as of December 31, 2019 and December 31, 2020, and the related audited consolidated statements of operations and comprehensive loss, convertible preferred stock and stockholders’ deficit and cash flows of the Group Companies for each of the periods then ended (the “Closing Company Audited Financial Statements”), when delivered following the date of this Agreement in accordance with Section 5.17, (i) will be prepared in accordance with GAAP applied on a consistent basis throughout the periods indicated (except as may be indicated in the notes thereto), (ii) will fairly present, in all material respects, the financial position, results of operations and cash flows of the Group Companies as at the date thereof and for the period indicated therein, except as otherwise specifically noted therein, (iii) will be audited in accordance with the standards of the PCAOB and will contain an unqualified report of the Company’s auditors, and (iv) will comply in all material respects with the applicable accounting requirements and with the rules and regulations of the SEC, the Exchange Act and the Securities Act in effect as of the respective dates thereof (including Regulation S-X or Regulation S-K, as applicable).
(c) Except (i) as set forth on the face of the Latest Balance Sheet, (ii) for Liabilities incurred in the ordinary course of business since the Latest Balance Sheet Date (none of which is a Liability for breach of contract, breach of warranty, tort, infringement or violation of Law), (iii) for Liabilities incurred in connection with the negotiation, preparation or execution of this Agreement or any Ancillary Documents, the performance of their respective covenants or agreements in this Agreement or any Ancillary Document or the consummation of the transactions contemplated hereby or thereby and (iv) for Liabilities that are not and would not reasonably be expected to be, individually or in the aggregate, material to the Group Companies, taken as a whole, no Group Company has any Liabilities of the type required to be set forth on a balance sheet in accordance with GAAP.
(d) The Group Companies have established and maintain systems of internal accounting controls that are designed to provide, in all material respects, reasonable assurance that (i) all transactions are executed in accordance with management’s authorization and (ii) all transactions are recorded as necessary to permit preparation of proper and accurate financial statements in accordance with GAAP and to maintain accountability for the Group Companies’ assets. The Group Companies maintain and, for all periods covered by the Financial Statements, have maintained books and records of the Group Companies in the ordinary course of business that are accurate and complete and reflect the revenues, expenses, assets and liabilities of the Group Companies in all material respects.
(eb) Except as set forth in Section 3.4(e) of Schedule 3.4(b), the Company Disclosure Schedule, since the incorporation of the Company, no Group Company has received any written complaint, allegation, assertion or claim that there is Financial Statements and Financial Schedules (i) “significant deficiency” have been derived from financial statements prepared in accordance with GAAP using the accrual method of accounting applied consistently during the periods covered thereby (except that the Financial Statements and Financial Schedules do not include footnote disclosure and are subject to normal year-end audit adjustments that are not in the internal controls over financial reporting of the Group Companiesaggregate material), (ii) a “are complete and correct in all material weakness” respects and present fairly in all material respects the internal controls over financial reporting condition of the Group Companies or Business, at the date of said statements and the results of its operations for the period covered thereby, (iii) fraudcontain and reflect adequate provisions for all reasonably anticipated liabilities with respect to the period then ended, and (iv) with respect to Material Contracts and commitments for the sale of products or other goods or services by the Seller Entities in the Business, contain and reflect adequate reserves for all material losses and costs and expenses in excess of expected receipts. The accounting policies, including without limitation, those policies related to revenue recognition, utilized by the Seller Entities in preparing the Seller Entities’ Financial Statements are in conformity with GAAP.
(c) As of the date hereof and as of the Closing Date, the Seller Entities do not and will not have any liabilities of any nature, whether accrued, absolute, contingent or otherwise, asserted or unasserted, known or unknown (including without limitation liabilities as guarantor or otherwise with respect to obligations of others, or liabilities for taxes due or then accrued or to become due or contingent or potential liabilities relating to activities of the Seller Entities in the Business or the conduct of the Business prior to the date hereof), whether or not materialof a type required to be shown on a balance sheet prepared in accordance with GAAP, that involves management except liabilities (i) stated or other employees of adequately reserved against on the Group Companies who have a significant role in Base Balance Sheet (only to the internal controls over financial reporting of the Group Companies.extent
Appears in 1 contract
Sources: Second Territory Letter Agreement (Inverness Medical Innovations Inc)
Financial Statements; Undisclosed Liabilities. (a) The Company has made available to HighCape a true and complete copy of (i) the audited consolidated The unaudited balance sheets of for the Group Companies Company as of December 31, 2020 and December 31, 2019, and the related audited consolidated statements of operations and comprehensive loss, convertible preferred stock and stockholders’ deficit and cash flows of the Group Companies income for each of the periods then ended, (ii) the unaudited consolidated balance sheets of the Group Companies as of December 31, 2020, and the related unaudited consolidated statements of operations and comprehensive loss, convertible preferred stock and stockholders’ deficit and cash flows of the Group Companies for the twelve (12)-month period 12-months then ended, and (iii) the monthly unaudited consolidated balance sheets of the Group Companies as of December 31, 2019 and December 31, 2020 (the “Latest Balance Sheet”) and the related unaudited consolidated statements of operations and comprehensive loss, convertible preferred stock and stockholders’ deficit and cash flows of the Group Companies income for each of the periods then ended (clauses (i)first five months in calendar year 2021, (ii), and (iii) are collectively, the “Financial Statements”), each copies of which have been delivered to Purchaser, are attached as Section 3.4(a) of the Company Disclosure Schedules. Each of the Financial Statements (including the notes thereto) (A) was true and correct in all material respects and have been prepared in accordance with GAAP generally accepted accounting principles applied on a consistent basis throughout the periods indicated (except for recurring adjustments and deferred tax liabilities and the lack of footnotes or notes) and fairly and accurately reflect the financial condition of the Company as may be indicated in of the notes thereto)dates prepared. The estimated pro forma unaudited balance sheet of FM Holdings as of the Closing Date, (B) fairly presentsa copy of which has been delivered to Purchaser, is true and correct in all material respects, the financial position, results of operations respects and cash flows of the Group Companies as at the date thereof and for the period indicated therein, except as otherwise specifically noted therein, and (C) in the case of the Financial Statements included in clause (iii) only, were has been prepared in accordance with the standards of the PCAOB, and comply in all material respects with the applicable generally accepted accounting requirements and with the rules and regulations of the SEC, the Exchange Act and the Securities Act in effect as of the respective dates thereof (including Regulation S-X or Regulation S-K, as applicable).
(b) The audited consolidated balance sheets of the Group Companies as of December 31, 2019 and December 31, 2020, and the related audited consolidated statements of operations and comprehensive loss, convertible preferred stock and stockholders’ deficit and cash flows of the Group Companies for each of the periods then ended (the “Closing Company Audited Financial Statements”), when delivered following the date of this Agreement in accordance with Section 5.17, (i) will be prepared in accordance with GAAP principles applied on a consistent basis throughout the periods indicated (except for recurring adjustments and the lack of footnotes or notes) and fairly and accurately reflects the financial position of FM Holdings as may be indicated in of the notes thereto), Closing Date.
(ii) will fairly presentSchedule 3.2(h)(ii) sets forth a true and complete list of all indebtedness of the Company Group outstanding as of immediately prior to the Closing.
(iii) Except for the Company Group’s executory Liabilities under the Loan Documents, the Leases and the contracts set forth on Schedule 3.2(h)(iii), the Company Group does not have any Liabilities.
(iv) The books of account and financial records of the Company Group are true and correct and have been prepared and are maintained in accordance with sound accounting practice in all material respects, the financial position, results of operations and cash flows of the Group Companies as at the date thereof and for the period indicated therein, except as otherwise specifically noted therein, (iii) will be audited in accordance with the standards of the PCAOB and will contain an unqualified report of the Company’s auditors, and (iv) will comply in all material respects with the applicable accounting requirements and with the rules and regulations of the SEC, the Exchange Act and the Securities Act in effect as of the respective dates thereof (including Regulation S-X or Regulation S-K, as applicable).
(cv) Except Since December 31, 2020: (iA) as set forth on the face of the Latest Balance Sheet, (ii) for Liabilities incurred Company Group has conducted its business only in the ordinary course of business since the Latest Balance Sheet Date consistent with past practice; (none of which is a Liability for breach of contractB) there has not been any change, breach of warranty, tort, infringement event or violation of Law), (iii) for Liabilities incurred in connection with the negotiation, preparation or execution of this Agreement or any Ancillary Documents, the performance of their respective covenants or agreements in this Agreement or any Ancillary Document or the consummation of the transactions contemplated hereby or thereby and (iv) for Liabilities that are not and would not reasonably be expected to bedevelopment that, individually or in the aggregate, has had or is reasonably likely to have a material to the Group Companies, taken as a whole, no Group Company has any Liabilities of the type required to be set forth on a balance sheet in accordance with GAAP.
(d) The Group Companies have established and maintain systems of internal accounting controls that are designed to provide, in all material respects, reasonable assurance that (i) all transactions are executed in accordance with management’s authorization adverse effect; and (iiC) all transactions are recorded as necessary to permit preparation of proper and accurate financial statements in accordance with GAAP and to maintain accountability for the Group Companies’ assets. The Group Companies maintain and, for all periods covered by the Financial Statements, have maintained books and records of the Group Companies in the ordinary course of business that are accurate and complete and reflect the revenues, expenses, assets and liabilities of the Group Companies in all material respects.
(e) Except as set forth in Section 3.4(e) of the Company Disclosure ScheduleGroup has not suffered any material loss, since damage, destruction or other casualty affecting the incorporation of the Company, no Group Company has received any written complaint, allegation, assertion or claim that there is (i) “significant deficiency” in the internal controls over financial reporting of the Group Companies, (ii) a “material weakness” in the internal controls over financial reporting of the Group Companies or (iii) fraudProperty, whether or not material, that involves management or other employees of the Group Companies who have a significant role in the internal controls over financial reporting of the Group Companiescovered by insurance.
Appears in 1 contract
Sources: Contract of Purchase and Sale (Great Elm Group, Inc.)
Financial Statements; Undisclosed Liabilities. (a) The Section 3.6 of the Company has made available to HighCape a true and complete copy of Disclosure Letter sets forth the (ia) the audited consolidated balance sheets sheet of the Group Companies Company and the Company Subsidiaries as of December January 31, 20192004, (b) audited consolidated balance sheet of the Company and the Company Subsidiaries as of January 31, 2005 (the "Company 2005 Balance Sheet"), (c) related audited consolidated statements of operations and comprehensive loss, convertible preferred stock and stockholders’ deficit income and cash flows of the Group Companies for each of the periods then endedyears ended January 31, 2004 and January 31, 2005, (iid) the unaudited consolidated balance sheets sheet of the Group Companies Company and the Company Subsidiaries as of December 31June 30, 20202005, and the (e) related unaudited consolidated statements of operations and comprehensive loss, convertible preferred stock and stockholders’ deficit income and cash flows of the Group Companies flow for the twelve five months ended June 30, 2005 (12)-month period then ended, and (iii) the unaudited consolidated balance sheets of the Group Companies as of December 31, 2019 and December 31, 2020 (the “Latest Balance Sheet”) and the related unaudited consolidated statements of operations and comprehensive loss, convertible preferred stock and stockholders’ deficit and cash flows of the Group Companies for each of the periods then ended (clauses (i), (ii), and (iii) are collectively, the “"Company Financial Statements”), each of which are attached as Section 3.4(a) of the Company Disclosure Schedules. Each of the Financial Statements (including the notes thereto) (A) was prepared in accordance with GAAP applied on a consistent basis throughout the periods indicated (except as may be indicated in the notes thereto), (B) fairly presents, in all material respects, the financial position, results of operations and cash flows of the Group Companies as at the date thereof and for the period indicated therein, except as otherwise specifically noted therein, and (C) in the case of the Financial Statements included in clause (iii) only, were prepared in accordance with the standards of the PCAOB, and comply in all material respects with the applicable accounting requirements and with the rules and regulations of the SEC, the Exchange Act and the Securities Act in effect as of the respective dates thereof (including Regulation S-X or Regulation S-K, as applicable").
(b) The audited consolidated balance sheets of the Group Companies as of December 31, 2019 and December 31, 2020, and the related audited consolidated statements of operations and comprehensive loss, convertible preferred stock and stockholders’ deficit and cash flows of the Group Companies for each of the periods then ended (the “Closing Company Audited Financial Statements”), when delivered following the date of this Agreement in accordance with Section 5.17, Statements (i) will be have been prepared from, are in accordance with, and accurately reflect the books and records of the Company and the Company Subsidiaries in all material respects, (ii) have been prepared in accordance with GAAP generally accepted accounting principles ("GAAP") in all material respects applied on a consistent basis throughout during the periods indicated involved and (except as may be indicated in the notes thereto), (iiiii) will fairly present, present in all material respects, respects in accordance with GAAP the consolidated financial position, position of the Company and the Company Subsidiaries as of the dates thereof and the consolidated results of their operations and cash flows for the periods shown (subject, in the case of clauses (ii) and (iii), to normal year-end adjustments, none of which, individually or in the aggregate, would reasonably be expected to have a company Material Adverse Effect, and the absence of footnotes in the case of unaudited interim financial statements). The books and records of the Group Companies as at Company and the date thereof and for the period indicated therein, except as otherwise specifically noted therein, (iii) will be audited in accordance with the standards of the PCAOB and will contain an unqualified report of the Company’s auditorsCompany Subsidiaries have been, and (iv) will comply are being, maintained in all material respects in accordance with the GAAP and any other applicable legal and accounting requirements and with the rules and regulations of the SEC, the Exchange Act and the Securities Act in effect as of the respective dates thereof (including Regulation S-X or Regulation S-K, as applicable)requirements.
(c) Except as and to the extent disclosed or reserved against on the Company 2005 Balance Sheet, neither the Company nor any Company Subsidiary has any liabilities or obligations of any nature (iwhether accrued, absolute, contingent or otherwise) as required by GAAP to be set forth on the face a consolidated balance sheet of the Latest Balance Sheet, (ii) for Liabilities incurred Company and the Company Subsidiaries or in the ordinary course of business since notes thereto, except for liabilities that, individually or in the Latest Balance Sheet Date (none of which is a Liability for breach of contractaggregate, breach of warranty, tort, infringement or violation of Law), (iii) for Liabilities incurred in connection with the negotiation, preparation or execution of this Agreement or any Ancillary Documents, the performance of their respective covenants or agreements in this Agreement or any Ancillary Document or the consummation of the transactions contemplated hereby or thereby and (iv) for Liabilities that are have not had and would not reasonably be expected to be, individually or in the aggregate, material to the Group Companies, taken as have a whole, no Group Company has any Liabilities of the type required to be set forth on a balance sheet in accordance with GAAPMaterial Adverse Effect.
(d) The Group Companies have established and maintain systems of internal accounting controls that are designed to provide, in all material respects, reasonable assurance that (i) all transactions are executed in accordance with management’s authorization and (ii) all transactions are recorded as necessary to permit preparation of proper and accurate financial statements in accordance with GAAP and to maintain accountability for Neither the Group Companies’ assets. The Group Companies maintain and, for all periods covered by the Financial Statements, have maintained books and records Company nor any of the Group Companies in Company Subsidiaries is, or has at any time since January 1, 2003 been, subject to the ordinary course reporting requirements of business that are accurate Sections 13(a) and complete and reflect the revenues, expenses, assets and liabilities of the Group Companies in all material respects.
(e) Except as set forth in Section 3.4(e15(d) of the Company Disclosure ScheduleSecurities Exchange Act of 1934, since as amended (the incorporation of the Company, no Group Company has received any written complaint, allegation, assertion or claim that there is (i) “significant deficiency” in the internal controls over financial reporting of the Group Companies, (ii) a “material weakness” in the internal controls over financial reporting of the Group Companies or (iii) fraud, whether or not material, that involves management or other employees of the Group Companies who have a significant role in the internal controls over financial reporting of the Group Companies"Exchange Act").
Appears in 1 contract
Sources: Merger Agreement (Refac)
Financial Statements; Undisclosed Liabilities. (a) The Company has made available to HighCape Parent a true and complete copy of (i) the audited consolidated balance sheets of the Group Companies as of December 31, 2019, and the related audited consolidated statements of operations and comprehensive loss, convertible preferred stock and stockholders’ deficit and cash flows of the Group Companies for each of the periods then ended, (ii) the unaudited consolidated balance sheets of the Group Companies as of December 31, 2020, and the related unaudited consolidated statements of operations and comprehensive loss, convertible preferred stock and stockholders’ deficit and cash flows of the Group Companies for the twelve (12)-month period then ended, and (iii) the unaudited consolidated balance sheets sheet of the Group Companies as of December 31, 2019 and December 31, 2020 and the related audited consolidated statements of income and cash flows of the Group Companies for the year then ended and (ii) the unaudited consolidated balance sheet (the “Latest Balance Sheet”) and the related unaudited consolidated statements of operations and comprehensive loss, convertible preferred stock and stockholders’ deficit income and cash flows of the Group Companies as of and for a year-to-date period ended as of the end of each fiscal quarter that is required to be included in the Registration Statement / Proxy Statement and any other filings to be made by TopCo or Parent with the SEC (including for each fiscal quarter of the periods then year ended December 31, 2020) if such Registration Statement / Proxy Statement was to be filed as of the date hereof (clauses (i), ) and (ii), and (iii) are collectivelytogether, the “Financial Statements”), each of which are attached as Section 3.4(a) of the Company Disclosure SchedulesSchedule and, in the case of clause (i), will contain an unqualified report of the Company’s auditors when delivered following the date of this Agreement in accordance with Section 6.13. Each of the Financial Statements (including the notes thereto) (A) was prepared in accordance with GAAP International Financial Reporting Standards (“IFRS”) applied on a consistent basis throughout the periods indicated (except as may be indicated in the notes thereto), (B) fairly presents, in all material respects, the financial position, results of operations and cash flows of the Group Companies as at the date thereof and for the period indicated therein, except as otherwise specifically noted therein, therein and (C) in the case of the Financial Statements included in clause (iii) onlyi), were prepared has been audited in accordance with the standards of the PCAOB, and comply in all material respects with the applicable accounting requirements and with the rules and regulations of the SEC, the Exchange Act and the Securities Act in effect as of the respective dates thereof (including Regulation S-X or Regulation S-K, as applicable).
(b) The audited consolidated balance sheets of the Group Companies as of December 31, 2019 and December 31, 2020, and the related audited consolidated statements of operations and comprehensive loss, convertible preferred stock and stockholders’ deficit and cash flows of the Group Companies for each of the periods then ended (the “Closing Post-Signing Company Audited Financial Statements”), when delivered following the date of this Agreement in accordance with Section 5.176.13, (i) will be prepared in accordance with GAAP IFRS applied on a consistent basis throughout the periods indicated (except as may be indicated in the notes thereto), (ii) will fairly present, in all material respects, the financial position, results of operations and cash flows of the Group Companies as at the date thereof and for the period indicated therein, except as otherwise specifically noted thereintherein and, (iii) will will, if applicable, be audited in accordance with the standards of the PCAOB and will contain an unqualified report of the Company’s auditors, and (iv) will comply in all material respects with the applicable accounting requirements and with the rules and regulations of the SEC, the Exchange Act and the Securities Act in effect as of the respective dates thereof (including Regulation S-X or Regulation S-K, as applicable)PCAOB.
(c) Except (i) as set forth on the face of the Latest Balance Sheet, (ii) for Liabilities incurred in the ordinary course of business since the date of the Latest Balance Sheet Date (none of which is a Liability for breach of contract, breach of warranty, tort, infringement or violation of Law), (iii) for Liabilities incurred in connection with the negotiation, preparation or execution of this Agreement or any Ancillary Documents, the performance of their respective covenants or agreements in this Agreement or any Ancillary Document or the consummation of the transactions contemplated hereby or thereby and (iv) for Liabilities that are not and would not reasonably be expected to be, individually or in the aggregate, material to the Group Companies, taken as a whole, no Group Company has any Liabilities of the type required to be set forth on a balance sheet in accordance with GAAPLiabilities.
(d) The Group Companies have established and maintain systems of internal accounting controls that are designed to provide, in all material respects, reasonable assurance that (i) all transactions are executed in accordance with management’s authorization and (ii) all transactions are recorded as necessary to permit preparation of proper and accurate financial statements in accordance with GAAP and to maintain accountability for the Group Companies’ assets. The Group Companies maintain and, for all periods covered by the Financial Statements, have maintained books and records of the Group Companies in the ordinary course of business that are accurate and complete and reflect the revenues, expenses, assets and liabilities of the Group Companies in all material respects.
(e) Except as set forth in Section 3.4(e3.2(d) of the Company Disclosure Schedule, since the incorporation of the CompanyDecember 31, 2018, no Group Company has received any written or, to the Company’s knowledge, oral complaint, allegation, assertion or claim that there is (iA) “significant deficiency” in the internal controls over financial reporting of the Group CompaniesCompanies to the Company’s knowledge, (iiB) a “material weakness” in the internal controls over financial reporting of the Group Companies to the Company’s knowledge or (iiiC) fraud, whether or not material, that involves management or other employees of the Group Companies who have a significant role in the internal controls over financial reporting of the Group Companies.
Appears in 1 contract
Sources: Business Combination Agreement (Oaktree Acquisition Corp. II)
Financial Statements; Undisclosed Liabilities. (a) The Company has made available to HighCape a true and complete copy Parent copies of (ia) the audited unaudited consolidated balance sheets financial statements of the Group Companies Company (including the balance sheet and the related statements of operations, stockholders’ deficit and cash flows) as of and for the years ended December 31, 2019, December 31, 2018 and the related audited consolidated statements of operations December 31, 2017 and comprehensive loss, convertible preferred stock and stockholders’ deficit and cash flows of the Group Companies for each of the periods then ended, (iib) the unaudited consolidated balance sheets financial statements of the Group Companies Company as of December 31, 2020, and the related unaudited consolidated statements of operations and comprehensive loss, convertible preferred stock and stockholders’ deficit and cash flows of the Group Companies for the twelve ten (12)-month period then ended, and (iii10) the unaudited consolidated balance sheets of the Group Companies as of December 31, 2019 and December months ended October 31, 2020 (the “Latest Balance Sheet”) and the related unaudited consolidated statements of operations and comprehensive loss, convertible preferred stock and stockholders’ deficit and cash flows of the Group Companies for each of the periods then ended (clauses (i), (ii), and (iii) are collectively, the “Company Financial Statements”), each of which are attached as Section 3.4(a) of the . The Company Disclosure Schedules. Each of the Financial Statements (x) (including in each case, the notes thereto, if any) (A) was prepared in accordance with GAAP applied on a consistent basis throughout the periods indicated (except as may be indicated in the notes thereto), (B) fairly presentspresent fairly, in all material respects, the combined financial position, position and results of operations and cash flows of the Group Companies Company as at of the date dates thereof and for the period indicated therein, except as otherwise specifically noted thereinperiods covered thereby, and (Cy) have been prepared in accordance with GAAP, consistently applied, subject, in the case of the unaudited Company Financial Statements, to normal year-end adjustments (none of which individually or in the aggregate will be material in amount) and the absence of footnotes. The Company Financial Statements included in clause (iii) only, were have been prepared in accordance with from books and records maintained by the standards of the PCAOB, and comply in all material respects with the applicable accounting requirements and with the rules and regulations of the SEC, the Exchange Act and the Securities Act in effect as of the respective dates thereof (including Regulation S-X or Regulation S-K, as applicable)Company.
(b) The audited consolidated balance sheets books of account and other financial records of the Group Companies as Company have been kept accurately in the ordinary course of December 31business consistent with applicable Laws, 2019 and December 31, 2020the transactions entered therein represent bona fide transactions, and the related audited consolidated statements of operations revenues, expenses, assets and comprehensive loss, convertible preferred stock and stockholders’ deficit and cash flows liabilities of the Group Companies Company have been properly recorded therein in all material respects. The Company has established and maintains a system of internal accounting controls that are customary for each companies at this stage of development as the periods then ended (the “Closing Company Audited Financial Statements”), when delivered following the date of this Agreement in accordance with Section 5.17, and are sufficient to ensure (i) will be prepared in accordance with GAAP applied on a consistent basis throughout the periods indicated (except as may be indicated in reliability of the notes thereto)Company Financial Statements, (ii) will fairly presentthat transactions, in all material respectsreceipts and expenditures are executed with appropriate authorization of management, the financial positionand (ii) that prevent or timely detect unauthorized acquisition, results of operations and cash flows use or disposition of the Group Companies as at the date thereof and for the period indicated therein, except as otherwise specifically noted therein, (iii) will be audited in accordance with the standards of the PCAOB and will contain an unqualified report assets of the Company’s auditors. Since December 31, and 2019, there has been no material change in any accounting controls, policies, principles, methods or practices, including any change with respect to reserves (iv) will comply in all material respects with the applicable accounting requirements and with the rules and regulations whether for bad Debts, contingent liabilities or otherwise), of the SEC, the Exchange Act and the Securities Act in effect as of the respective dates thereof (including Regulation S-X or Regulation S-K, as applicable)Company.
(c) Except The Company does not have any Liabilities except for (i) as set forth Liabilities which are adequately reflected or provided for on or disclosed on the face of the Latest Balance Sheetmost recent balance sheet included in the Company Financial Statements or disclosed in the notes thereto, (ii) for current Liabilities incurred in the ordinary course of business since the Latest Balance Sheet Date (none date of which is a Liability for breach of contract, breach of warranty, tort, infringement or violation of Law)the unaudited balance sheet included in the Company Financial Statements, (iii) for obligations to be performed under the executory portion of any Contracts (other than obligations due to breaches or non-performance under such Contracts), or (iv) Liabilities incurred under this Agreement or in connection with the negotiation, preparation or execution of this Agreement or any Ancillary Documents, the performance of their respective covenants or agreements in this Agreement or any Ancillary Document or the consummation of the transactions contemplated hereby or thereby and (iv) for Liabilities that are not and would not reasonably be expected to be, individually or in the aggregate, material to the Group Companies, taken as a whole, no Group Company has any Liabilities of the type required to be set forth on a balance sheet in accordance with GAAPhereby.
(d) The Group Companies have established and maintain systems of internal accounting controls that are designed to provide, in all material respects, reasonable assurance that (i) all transactions are executed in accordance with management’s authorization and (ii) all transactions are recorded as necessary to permit preparation of proper and accurate financial statements in accordance with GAAP and to maintain accountability for the Group Companies’ assets. The Group Companies maintain and, for all periods covered by the Financial Statements, have maintained books and records of the Group Companies in the ordinary course of business that are accurate and complete and reflect the revenues, expenses, assets and liabilities of the Group Companies in all material respects.
(e) Except as set forth in Section 3.4(e) of the Company Disclosure Schedule, since the incorporation of the Company, no Group Company has received any written complaint, allegation, assertion or claim that there is (i) “significant deficiency” in the internal controls over financial reporting of the Group Companies, (ii) a “material weakness” in the internal controls over financial reporting of the Group Companies or (iii) fraud, whether or not material, that involves management or other employees of the Group Companies who have a significant role in the internal controls over financial reporting of the Group Companies.
Appears in 1 contract
Financial Statements; Undisclosed Liabilities. (a) The Section 3.5(a) of the Company has made available to HighCape a true and complete copy of (i) Disclosure Schedule sets forth the audited unaudited consolidated balance sheets sheet of the Group Companies as of December 31, 2019, and the related audited consolidated statements of operations and comprehensive loss, convertible preferred stock and stockholders’ deficit and cash flows of the Group Companies for each of the periods then ended, (ii) the unaudited consolidated balance sheets of the Group Companies as of December 31, 2020, 2023 and the related unaudited consolidated statements statement of operations and comprehensive loss, convertible preferred stock and stockholders’ deficit and cash flows of the Group Companies income for the twelve (12)-month period then ended, and (iii) the unaudited consolidated balance sheets of the Group Companies as of December 31, 2019 and December 31, 2020 (the “Latest Balance Sheet”) and the related unaudited consolidated statements of operations and comprehensive loss, convertible preferred stock and stockholders’ deficit and cash flows of the Group Companies for each of the periods nine months then ended (clauses (i), (ii), and (iii) are collectively, the “Financial Statements”), each of which are attached as Section 3.4(a) of the Company Disclosure Schedules. Each of the Financial Statements (including the notes thereto) (A) was prepared in accordance with GAAP applied on a consistent basis throughout the periods indicated (except as may be indicated in the notes thereto), (B) fairly presents, in all material respects, the financial position, results of operations and cash flows of the Group Companies as at the date thereof and for the period indicated therein, except as otherwise specifically noted therein, and (C) in the case of the Financial Statements included in clause (iii) only, were prepared in accordance with the standards of the PCAOB, and comply in all material respects with the applicable accounting requirements and with the rules and regulations of the SEC, the Exchange Act and the Securities Act in effect as of the respective dates thereof (including Regulation S-X or Regulation S-K, as applicable).
(b) The audited consolidated balance sheets of the Group Companies as of December 31, 2019 and December 31, 2020, and the related audited consolidated statements of operations and comprehensive loss, convertible preferred stock and stockholders’ deficit and cash flows of the Group Companies for each of the periods then ended (the “Closing Company Audited Financial Statements”), when delivered following the date of this Agreement in accordance with Section 5.17, Statements (i) will be prepared in accordance with GAAP applied on a consistent basis throughout the periods indicated (except as may be indicated in the notes thereto), (ii) will fairly present, in all material respects, the financial position, results of operations and operations, cash flows and stockholders’ equity of the applicable Group Companies as at of the date thereof dates and for the period periods indicated therein, (ii) have been prepared in accordance with GAAP, except for the absence of footnotes and customary year-end audit adjustments (which shall not be material individually or in the aggregate in amount or significance) or as otherwise specifically noted thereinset forth in the Accounting Principles, consistently applied throughout the periods covered thereby and (iii) will be audited are derived from and are in accordance with the standards books and records of the PCAOB and will contain an unqualified report of the Company’s auditors, and (iv) will comply in all material respects with the applicable accounting requirements and with the rules and regulations of the SEC, the Exchange Act and the Securities Act in effect as of the respective dates thereof (including Regulation S-X or Regulation S-K, as applicable)Company Group.
(c) Except (i) as set forth on the face for those assets acquired or disposed of the Latest Balance Sheet, (ii) for Liabilities incurred in the ordinary course of business since the Latest Company Balance Sheet Date (none of which is a Liability for breach of contract, breach of warranty, tort, infringement or violation of Law), (iii) for Liabilities incurred in connection with the negotiation, preparation or execution of this Agreement or any Ancillary Documents, the performance of their respective covenants or agreements in this Agreement or any Ancillary Document or the consummation of the transactions contemplated hereby or thereby and (iv) for Liabilities that are not and would not reasonably be expected to be, individually or in the aggregateOrdinary Course of Business or as expressly set forth in the Pre-Closing Actions, all tangible and intangible properties and assets material to the Group Companies, taken as a whole, no Group Company has any Liabilities present operations of the type required to be set forth on a balance sheet Group Companies are reflected in accordance with GAAPthe Financial Statements.
(d) The Since April 1, 2021, the Company Group Companies have established and maintain systems has maintained a system of internal accounting controls, internal controls that are designed over financial reporting and disclosure controls and procedures adequate for a company at the same stage of development as the Company Group to provide, in all material respects, reasonable assurance that ensure (i) all that books, records and accounts accurately and fairly reflect, in reasonable detail, the transactions are executed and dispositions of any Group Company’s assets, (ii) that the integrity of their financial statements and information contained therein is maintained and (iii) that access to financial accounts is permitted only in accordance with management’s authorization and (ii) all transactions are recorded as necessary general or specific authorizations. With regard to permit preparation of proper and accurate financial statements in accordance with GAAP and to maintain accountability for the Group Companies’ assets. The Group Companies maintain and, for all periods covered by the Financial Statements, have maintained books and records none of the Group Companies in Company Group, the ordinary course Company Group’s independent accountants, the Company’s board of business that are accurate and complete and reflect directors (or similar governing body) or the revenues, expenses, assets and liabilities of the Group Companies in all material respects.
audit committee (e) Except as set forth in Section 3.4(eif any) of the Company Disclosure Schedule, since the incorporation Company’s board of the Company, no Group Company directors (or similar committee) has received any written complaintwritten, allegationor to the Company’s knowledge, assertion or claim that there is oral, notification of any (iA) “significant deficiency” in the internal controls over financial reporting of the Company Group Companieswhich could affect in a material manner any Group Company’s ability to record, process, summarize and report financial data, (iiB) a “material weakness” in the internal controls over financial reporting of the Group Companies or Company Group, (iiiC) fraud, whether or not material, that involves management or other employees or consultants or contractors of the Company Group Companies who have a significant role in the preparation of the financial statements or the internal controls over financial reporting of the Company Group, or (D) any claim or allegation regarding any of the foregoing.
(e) No cash of the Company Group Companiesis subject to restrictions, limitations or Taxes on use or distribution by Law, Contract or otherwise, including restrictions on dividends and repatriations or any other form of restriction.
(f) The accounts receivable of any Group Company reflected on the Financial Statements, and all accounts receivable arising subsequent to the Company Balance Sheet Date, (i) arose from bona fide transactions in the Ordinary Course of Business and are payable on ordinary trade terms and (ii) to the Company’s knowledge, are legal, valid and binding obligations of the respective debtors enforceable in accordance with their respective terms, in each case, except as would not be material to the Company Group, taken as a whole.
(g) Section 3.5(g) of the Disclosure Schedule sets forth (i) all outstanding indebtedness for borrowed money of the Company Group and identifies the debtor, the principal amount outstanding as of the Agreement Date, the creditor and the maturity date and (ii) all outstanding letters of credit, fidelity bonds and surety bonds of the Company Group. All letters of credit, fidelity bonds and surety bonds of the Company Group are in full force and effect and will continue in full force and effect immediately following the consummation of the Transactions. No default (or an event which with notice or lapse of time or both would become a default) exists with respect to the obligations of the Company Group under any such letters of credit, fidelity bonds or surety bonds and the Company Group has not received any notification of cancellation of any of such letters of credit, fidelity bonds or surety bonds, except for where such default or failure to receive any notification or cancellation would not be material to the Company Group, taken as a whole.
(h) Except for those liabilities that (i) have been incurred in the Ordinary Course of Business since the Company Balance Sheet Date (none of which is a liability for violations of Law or for tort, infringement or breach of Contract or warranty) and would not reasonably be expected to, individually or in the aggregate, be material to the Company Group, (ii) have been incurred in connection with the preparation, execution, delivery and performance of this Agreement and the Ancillary Documents and the consummation of the Transactions and constitute Closing Debt or Company Transaction Expenses as set forth in the Closing Spreadsheet, (iii) are described in Section 3.5(h) of the Company Disclosure Schedule or (iv) are executory obligations under any Contract of any Group Company set forth in the Company Disclosure Schedule that have not arisen from a breach thereof or thereunder, the Company Group has no liabilities accrued, contingent or otherwise (known or unknown and asserted or unasserted).
(i) Section 3.5(i) of the Company Disclosure Schedule sets forth an accurate and complete list of the names of all banks and financial institutions in which any Group Company has an account, deposit, safe-deposit box, line of credit or other loan facility or relationship, or lock box or other arrangement for the collection of accounts receivable, with the names as of the Agreement Date of all Persons authorized to draw or borrow thereon or to obtain access thereto (pursuant to a power of attorney or otherwise).
(j) As of the Closing, after giving effect to the Pre-Closing Actions, no Group Company has any obligation to pay any deferred purchase price (including any seller notes, earnout obligations, indemnities and post-closing adjustments or contingent deferred obligations), bonuses or other amounts due to any Person, including any current or former employee of the Company Group, except as set forth in Schedule 1.1(c), which amounts shall be borne Parent pursuant to Section 2.3(e).
(k) The Group Companies do not have assets in Canada with an aggregate value that exceeds CAD $93 million; nor do the gross revenues from sales in or from Canada generated from the assets in Canada of the Group Companies exceed CAD $93 million; all as determined pursuant to Part IX of the Competition Act (Canada) and the Notifiable Transactions Regulations (Canada) promulgated thereunder.
Appears in 1 contract
Sources: Share Purchase Agreement (Take Two Interactive Software Inc)
Financial Statements; Undisclosed Liabilities. (ai) The Company CCFC has previously delivered or made available to HighCape a true FCBI accurate and complete copy of (i) the audited consolidated balance sheets copies of the Group Companies CCFC Financial Statements which, in the case of the consolidated statements of financial condition of CCFC as of December 31, 20192007, 2006 and 2005 and the related audited consolidated statements of operations and comprehensive lossincome, convertible preferred stock and stockholders’ deficit equity and cash flows for each of the years ended December 31, 2007, 2006 and 2005, are accompanied by the audit report of McGladrey & ▇▇▇▇▇▇, LLP. The CCFC Financial Statements referred to herein fairly present or will fairly present, as the case may be, the financial condition of CCFC as of the respective dates set forth therein, and the consolidated results of operations, changes in stockholders’ equity and cash flows of CCFC for the Group Companies for each respective periods or as of the respective dates set forth therein, in each case in accordance with GAAP consistently applied during the periods then endedinvolved, except in each case as may be noted therein.
(ii) the unaudited consolidated balance sheets of the Group Companies as of December 31, 2020, and the related unaudited consolidated statements of operations and comprehensive loss, convertible preferred stock and stockholders’ deficit and cash flows of the Group Companies for the twelve (12)-month period then ended, and (iii) the unaudited consolidated balance sheets of the Group Companies as of December 31, 2019 and December 31, 2020 (the “Latest Balance Sheet”) and the related unaudited consolidated statements of operations and comprehensive loss, convertible preferred stock and stockholders’ deficit and cash flows of the Group Companies for each of the periods then ended (clauses (i), (ii), and (iii) are collectively, the “Financial Statements”), each of which are attached as Section 3.4(a) of the Company Disclosure Schedules. Each of the The CCFC Financial Statements (including have been or will be, as the notes thereto) (A) was case may be, prepared in accordance with GAAP consistently applied on a consistent basis throughout during the periods indicated (except as may be indicated in the notes thereto), (B) fairly presents, in all material respects, the financial position, results of operations and cash flows of the Group Companies as at the date thereof and for the period indicated thereininvolved, except as otherwise specifically noted stated therein, and (C) . The audits of CCFC have been conducted in the case accordance with generally accepted auditing standards of the Financial Statements included in clause United States of America.
(iii) only, were prepared in accordance with the standards of the PCAOB, and comply in all material respects with the applicable accounting requirements and with the rules and regulations of the SEC, the Exchange Act and the Securities Act in effect as of the respective dates thereof (including Regulation S-X or Regulation S-K, as applicable).
(b) The audited consolidated balance sheets of the Group Companies as of Since December 31, 2019 and December 312007, 2020, and the related audited consolidated statements neither CCFC nor any of operations and comprehensive loss, convertible preferred stock and stockholders’ deficit and cash flows of the Group Companies for each of the periods then ended (the “Closing Company Audited Financial Statements”), when delivered following the date of this Agreement in accordance with Section 5.17, (i) will be prepared in accordance with GAAP applied on a consistent basis throughout the periods indicated (except as may be indicated in the notes thereto), (ii) will fairly present, in all material respects, the financial position, results of operations and cash flows of the Group Companies as at the date thereof and for the period indicated therein, except as otherwise specifically noted therein, (iii) will be audited in accordance with the standards of the PCAOB and will contain an unqualified report of the Company’s auditors, and (iv) will comply in all material respects with the applicable accounting requirements and with the rules and regulations of the SEC, the Exchange Act and the Securities Act in effect as of the respective dates thereof (including Regulation S-X or Regulation S-K, as applicable).
(c) Except (i) as set forth on the face of the Latest Balance Sheet, (ii) for Liabilities its Subsidiaries has incurred any liability other than in the ordinary course of business since consistent with past practice (excluding the Latest Balance Sheet Date incurrence of expenses related to this Agreement and the Transaction).
(none iv) Since March 31, 2008, (A) CCFC and its Subsidiaries have conducted their respective businesses in the ordinary and usual course consistent with past practice (excluding the incurrence of which is a Liability for breach of contract, breach of warranty, tort, infringement or violation of Lawexpenses related to this Agreement and the Transaction), (iiiB) for Liabilities incurred in connection with the negotiation, preparation or execution of this Agreement or CCFC has not taken nor permitted any Ancillary Documents, the performance of their respective covenants or agreements in this Agreement or any Ancillary Document or the consummation of the transactions contemplated hereby or thereby actions set forth in Section 4.01 hereof between March 31, 2008 and the date hereof and (ivC) for Liabilities that are not and would not reasonably be expected to beno event has occurred or circumstance arisen that, individually or taken together with all other facts, circumstances and events (described in the aggregateany paragraph of this Section 5.03 or otherwise), material is reasonably likely to the Group Companies, taken as have a whole, no Group Company has any Liabilities of the type required Material Adverse Effect with respect to be set forth on a balance sheet in accordance with GAAPCCFC.
(dv) The Group Companies No agreement pursuant to which any Loans or other assets have established and maintain systems been or shall be sold by CCFC or its Subsidiaries entitle the buyer of internal accounting controls that are designed such Loans or other assets, unless there is material breach of a representation or covenant by CCFC or its Subsidiaries, to provide, in all material respects, reasonable assurance that (i) all transactions are executed in accordance with management’s authorization and (ii) all transactions are recorded as necessary cause CCFC or its Subsidiaries to permit preparation repurchase such Loans or other assets or the buyer to pursue any other form of proper and accurate financial statements in accordance with GAAP and to maintain accountability for the Group Companies’ assetsrecourse against CCFC or its Subsidiaries. The Group Companies maintain and, for all periods covered by the Financial Statements, have maintained books and records of the Group Companies in the ordinary course of business that are accurate and complete and reflect the revenues, expenses, assets and liabilities of the Group Companies in all material respects.
(e) Except as set forth in Section 3.4(e5.03(g)(v) of the Company CCFC’s Disclosure Schedule, since December 31, 2007, no cash, stock or other dividend or any other distribution with respect to the incorporation capital stock of CCFC has been declared, set aside or paid. Except as set forth in Section 5.03(g)(v) of CCFC’s Disclosure Schedule, no shares of capital stock of CCFC have been purchased, redeemed or otherwise acquired, directly or indirectly, by CCFC since December 31, 2007, and no agreements have been made to do the foregoing.
(vi) CCFC maintains a system of internal accounting controls sufficient to provide reasonable assurances that all material information concerning CCFC is made known on a timely basis to permit the preparation of the Company, no Group Company has received CCFC Financial Statements and any written complaint, allegation, assertion public disclosure documents relating to CCFC or claim that there is (i) “significant deficiency” in the internal controls over financial reporting of the Group Companies, (ii) a “material weakness” in the internal controls over financial reporting of the Group Companies or (iii) fraud, whether or not material, that involves management or other employees of the Group Companies who have a significant role in the internal controls over financial reporting of the Group Companiesits Subsidiaries.
Appears in 1 contract
Sources: Merger Agreement (First Community Bancshares Inc /Nv/)
Financial Statements; Undisclosed Liabilities. (a) The Company has made available to HighCape Atlas a true and complete copy of (i) the audited consolidated unaudited balance sheets sheet of the Group Companies as of December 31, 2019, and the related audited consolidated statements of operations and comprehensive loss, convertible preferred stock and stockholders’ deficit and cash flows of the Group Companies for each of the periods then ended, (ii) the unaudited consolidated balance sheets of the Group Companies as of December 31, 2020, and the related unaudited consolidated statements of operations and comprehensive loss, convertible preferred stock and stockholders’ deficit and cash flows of the Group Companies for the twelve (12)-month period then ended, and (iii) the unaudited consolidated balance sheets of the Group Companies Company as of December 31, 2019 and related unaudited consolidated statements of operations of the Company for the year then ended and (ii) the unaudited balance sheet of the Company as of December 31, 2020 (the “Latest Balance Sheet”) and the related unaudited consolidated statements of operations and comprehensive loss, convertible preferred stock and stockholders’ deficit and cash flows of the Group Companies Company for each of the periods year then ended (the financial statements described in clauses (i), ) and (ii), and (iii) are collectively, the “Financial Statements”), each of which Financial Statements are attached as Section 3.4(a) of the Company Disclosure Schedules. Each of the The Financial Statements (including the notes thereto) (A) was were prepared in accordance with GAAP applied on a consistent basis throughout the periods indicated (except as may be specifically indicated in the notes thereto), ) and (B) fairly presentspresent, in all material respects, the financial position, position and results of operations and cash flows of the Group Companies Company as at the date thereof and for the period indicated therein, except as otherwise specifically noted therein, and (C) in the case of the Financial Statements included in clause (iii) only, were prepared in accordance with the standards of the PCAOB, and comply in all material respects with the applicable accounting requirements and with the rules and regulations of the SEC, the Exchange Act and the Securities Act in effect as of the respective dates thereof (including Regulation S-X or Regulation S-K, as applicable).
(b) The audited consolidated balance sheets Each of the Group Companies financial statements or similar reports required to be included in the Registration Statement / Proxy Statement or any other filings to be made by the Company with the SEC in connection with the transactions contemplated by this Agreement or any Ancillary Document (the financial statements described in this sentence, which the Parties acknowledge shall, with respect to historical financial statements, solely consist of the audited financial statements as of and for the years ended December 31, 2019 and December 31, 2020, along with unaudited financial statements as of and for the related audited consolidated statements of operations and comprehensive lossapplicable quarterly interim periods thereafter, convertible preferred stock and stockholders’ deficit and cash flows of the Group Companies for each of the periods then ended (the “Closing Company Audited Financial Statements”), ) when delivered following the date of this the Original Agreement in accordance with Section 5.17, (i) will be prepared in accordance with GAAP applied on a consistent basis throughout the periods indicated (except except, in the case of any audited financial statements, as may be specifically indicated in the notes thereto and subject to, in the case of any unaudited financial statements, normal year end audit adjustments (none of which is expected to be, individually or in the aggregate, material) and the absence of notes thereto), (ii) will fairly present, in all material respects, the financial position, results of operations operations, stockholders’ deficit and cash flows of the Group Companies Company as at the date thereof and for the period indicated thereintherein (subject to, except as otherwise specifically noted thereinin the case of any unaudited financial statements, normal year end audit adjustments (none of which is expected to be, individually or in the aggregate, material)), (iii) in the case of any audited financial statements, will be audited in accordance with the standards of the PCAOB and will contain an unqualified report of the Company’s auditors, auditors and (iv) will comply in all material respects with the applicable accounting requirements and with the rules and regulations of the SEC, the Exchange Act and the Securities Act in effect as of the respective dates thereof date of such delivery (including Regulation S-X or Regulation S-K, as applicable).
(c) Except (i) as set forth on the face of the Latest Balance Sheet, (ii) for Liabilities incurred in the ordinary course of business since the date of the Latest Balance Sheet Date (none of which is are Liabilities related to a Liability for breach of contractContract, breach of warranty, tort, infringement infringement, Proceeding or violation of Law), (iii) for Liabilities incurred in connection with the negotiation, preparation or execution of this Agreement or any Ancillary Documents, the performance by the Company of their respective its covenants or agreements in this Agreement or any Ancillary Document to which it is or will be a party or the consummation of the transactions contemplated hereby or thereby (including, for the avoidance of doubt, any Liabilities arising out of, or related to, any Proceeding related to this Agreement, the Ancillary Documents or the transactions contemplated hereby or thereby, including any stockholder demand or other stockholder Proceedings (including derivative claims) arising out of, or related to, any of the foregoing), and (iv) for Liabilities that are not and would not reasonably be expected to be, individually or in the aggregate, material to the Group CompaniesCompany, taken as a whole, no Group the Company has any no Liabilities of the type required to be set forth on a balance sheet in accordance with GAAP.
(d) The Group Companies have Company has established and maintain maintains systems of internal accounting controls that are designed to provide, in all material respects, reasonable assurance that (i) all transactions are executed in accordance with management’s authorization and (ii) all transactions are recorded as necessary to permit preparation of proper and accurate financial statements in accordance with GAAP and to maintain accountability for the Group Companies’ Company’s assets. The Group Companies maintain Company maintains and, for all periods covered by the Financial Statements and the Closing Company Financial Statements, have has maintained books and records of the Group Companies Company in the ordinary course of business that are accurate and complete and reflect the revenues, expenses, assets and liabilities of the Group Companies Company in all material respects.
(e) Except as set forth in Section 3.4(e) of Since the Company’s incorporation, the Company Disclosure Schedule, since the incorporation of the Company, no Group Company has not received any written complaint, allegation, assertion or claim that there is (i) “significant deficiency” in the internal controls over financial reporting of the Group CompaniesCompany, (ii) a “material weakness” in the internal controls over financial reporting of the Group Companies Company or (iii) fraud, whether or not material, that involves management or other employees of the Group Companies Company who have a significant role in the internal controls over financial reporting of the Group CompaniesCompany.
Appears in 1 contract
Sources: Business Combination Agreement (Atlas Crest Investment Corp.)
Financial Statements; Undisclosed Liabilities. (a) The Company has made available delivered to HighCape a true and complete copy of Parent (i) the audited consolidated balance sheets combined financial statements of the Group Companies as including balance sheets and statements of operations, cash flows and changes in stockholder equity of the Company at and for each fiscal year of the Company ended December 31, 2017, 2018, and 2019, together with accompanying notes and the related audited consolidated (ii) an unaudited balance sheet and statements of operations and comprehensive lossoperation, convertible preferred stock and stockholders’ deficit and cash flows and changes in stockholder equity of the Group Companies for each of the periods then ended, (ii) the unaudited consolidated balance sheets of the Group Companies as of December 31, 2020, at and the related unaudited consolidated statements of operations and comprehensive loss, convertible preferred stock and stockholders’ deficit and cash flows of the Group Companies for the twelve (12)-month 8-month period then ended, and (iii) the unaudited consolidated balance sheets of the Group Companies as of December 31, 2019 and December ended August 31, 2020 (the “Latest Balance Sheet”) and Interim Financial Statements” and, collectively with the related unaudited consolidated financial statements of operations and comprehensive loss, convertible preferred stock and stockholders’ deficit and cash flows of the Group Companies for each of the periods then ended (clauses described in clause (i), (ii), and (iii) are collectively, the “Financial Statements”). The Financial Statements (A) are accurate, each of which are attached as Section 3.4(a) complete and consistent with the books and records of the Company Disclosure Schedules. Each of the Financial Statements in all material respects, (including the notes theretoB) (A) was have been prepared in accordance conformity with GAAP applied on a basis consistent basis throughout the periods indicated (except as may be indicated except, in the notes theretocase of the Interim Financial Statements, for the omission of footnote disclosures required by GAAP and normal and recurring year-end adjustments which are not, individually or in the aggregate, material), and (Biii) fairly presents, present in all material respects, respects the financial position, results of operations and cash flows of the Company as of the dates and for the periods indicated. The balance sheet of the combined Group Companies as at of August 31, 2020 is herein referred to as the date thereof and for the period indicated therein, except as otherwise specifically noted therein, and (C) in the case of the Financial Statements included in clause (iii) only, were prepared in accordance with the standards of the PCAOB, and comply in all material respects with the applicable accounting requirements and with the rules and regulations of the SEC, the Exchange Act and the Securities Act in effect as of the respective dates thereof (including Regulation S-X or Regulation S-K, as applicable)“Company Balance Sheet”.
(b) The audited consolidated No Group Company has liabilities or obligations of any nature (absolute, contingent or otherwise) that would be required to be disclosed on a balance sheets of the Group Companies as of December 31, 2019 and December 31, 2020, and the related audited consolidated statements of operations and comprehensive loss, convertible preferred stock and stockholders’ deficit and cash flows of the Group Companies for each of the periods then ended (the “Closing Company Audited Financial Statements”), when delivered following the date of this Agreement in accordance with Section 5.17, (i) will be sheet prepared in accordance with GAAP applied on a consistent basis throughout GAAP, other than (x) liabilities or obligations incurred since the periods indicated (except as may be indicated in the notes thereto), (ii) will fairly present, in all material respects, the financial position, results of operations and cash flows date of the Group Companies as at the date thereof and for the period indicated therein, except as otherwise specifically noted therein, (iii) will be audited in accordance with the standards of the PCAOB and will contain an unqualified report of the Company’s auditors, and (iv) will comply in all material respects with the applicable accounting requirements and with the rules and regulations of the SEC, the Exchange Act and the Securities Act in effect as of the respective dates thereof (including Regulation S-X or Regulation S-K, as applicable).
(c) Except (i) as set forth on the face of the Latest Company Balance Sheet, (ii) for Liabilities incurred Sheet in the ordinary course of business since and consistent with the Latest Balance Sheet Date Company’s past practice (none of which is relates to a Liability for breach of contract, breach of warranty, tort, infringement or violation of Law)any Contract, Law or Permit)and (iiiy) for Liabilities current liabilities incurred in connection with the negotiation, preparation or execution of this Agreement or any Ancillary Documents, the performance of their respective covenants or agreements in this Agreement or any Ancillary Document or the consummation of the transactions contemplated hereby or thereby and (iv) for Liabilities that are not and would not reasonably be expected to be, individually or in the aggregate, material to the Group Companies, taken as a whole, no Group Company has any Liabilities of the type required to be set forth on a balance sheet in accordance with GAAP.
(d) The Group Companies have established and maintain systems of internal accounting controls that are designed to provide, in all material respects, reasonable assurance that (i) all transactions are executed in accordance with management’s authorization and (ii) all transactions are recorded as necessary to permit preparation of proper and accurate financial statements in accordance with GAAP and to maintain accountability for the Group Companies’ assets. The Group Companies maintain and, for all periods covered by the Financial Statements, have maintained books and records of the Group Companies in the ordinary course of business that are accurate and complete and reflect the revenues, expenses, assets and liabilities of the Group Companies in all material respects.
(e) Except as set forth in Section 3.4(e) of the Company Disclosure Schedule, since the incorporation of the Company, no Group Company has received any written complaint, allegation, assertion or claim that there is (i) “significant deficiency” in the internal controls over financial reporting of the Group Companies, (ii) a “material weakness” in the internal controls over financial reporting of the Group Companies or (iii) fraud, whether or not material, that involves management or other employees of the Group Companies who have a significant role in the internal controls over financial reporting of the Group Companies.2.6(b)
Appears in 1 contract
Sources: Merger Agreement (Avalara, Inc.)
Financial Statements; Undisclosed Liabilities. (a) The Company has made available to HighCape BOA a true and complete copy of (i) the audited consolidated balance sheets of the Group Companies as of December 31, 20192019 and December 31, 2020 and the related audited consolidated statements of operations and comprehensive lossoperations, convertible preferred stock and stockholdersshareholders’ deficit and cash flows of the Group Companies for each of the periods then ended, (ii) the unaudited consolidated balance sheets of the Group Companies as of December 31, 2020, and the related unaudited consolidated statements of operations and comprehensive loss, convertible preferred stock and stockholders’ deficit equity and cash flows of the Group Companies for the twelve (12)-month period then ended, and (iii) the unaudited consolidated balance sheets of the Group Companies as of December 31, 2019 and December 31, 2020 (the “Latest Balance Sheet”) and the related unaudited consolidated statements of operations and comprehensive loss, convertible preferred stock and stockholders’ deficit and cash flows of the Group Companies for each of the periods years then ended (clauses (i), (ii), and (iii) are collectively, the “Financial Statements”), each of which are attached as Section 3.4(a) of the Company Disclosure Schedules. Each of the The Financial Statements (including the notes thereto) (A) was were prepared in accordance with GAAP IFRS applied on a consistent basis throughout the periods indicated (except as may be specifically indicated in the notes thereto), (B) fairly presents, in all material respects, the financial position, results of operations operations, shareholders’ equity and cash flows of the Group Companies as at the date thereof and for the period indicated therein, except as otherwise specifically noted therein, and (C) in the case of the Financial Statements included in clause (iii) only, were prepared in accordance with the standards of the PCAOB, and comply in all material respects with the applicable accounting requirements and with the rules and regulations of the SEC, the Exchange Act and the Securities Act in effect as of the respective dates thereof date of the Agreement (including Regulation S-X or Regulation S-K, as applicable).
(b) The audited consolidated balance sheets Each of the other financial statements or similar reports required to be included in the Registration Statement / Proxy Statement or any other filings to be made by the Group Companies as of December 31with the SEC in connection with the transactions contemplated in this Agreement or any other Ancillary Document (the financial statements described in this clause (y), 2019 and December 31, 2020, and the related audited consolidated statements of operations and comprehensive loss, convertible preferred stock and stockholders’ deficit and cash flows of the Group Companies for each of the periods then ended (the “Closing Company Audited Financial Statements”), when delivered following the date of this Agreement in accordance with Section 5.175.16, (i) will be prepared in accordance with GAAP IFRS applied on a consistent basis throughout the periods indicated (except except, in the case of any audited financial statements, as may be specifically indicated in the notes thereto and subject to, in the case of any unaudited financial statements, normal year end audit adjustments (none of which are individually or in the aggregate material) and the absence of notes thereto), (ii) will fairly present, in all material respects, the financial position, results of operations operations, shareholders equity and cash flows of the Group Companies as at the date thereof and for the period indicated thereintherein (subject to, except as otherwise specifically noted thereinin the case of any unaudited financial statements, normal year end audit adjustments (none of which are, individually or in the aggregate, material), (iii) in the case of any audited financial statements, will be audited in accordance with the standards of the PCAOB and will contain an unqualified report of the Company’s auditors, auditors and (iv) will comply in all material respects with the applicable accounting requirements and with the rules and regulations of the SEC, the Exchange Act and the Securities Act in effect as of the respective dates thereof date of such delivery (including Regulation S-X or Regulation S-K, as applicable).
(c) Except (i) as set forth on the face of the Latest Balance SheetFinancial Statements, (ii) for Liabilities incurred in the ordinary course of business since the Latest Balance Sheet Date date of the Financial Statements (none of which is are Liabilities directly or indirectly related to a Liability for breach of contractContract, breach of warranty, tort, infringement infringement, misappropriation, Proceeding or violation of of, or non-compliance with, Law), (iii) for Liabilities incurred in connection with the negotiation, preparation or execution of this Agreement or any Ancillary Documents, the performance by the Company of their respective its covenants or agreements in this Agreement or any Ancillary Document to which it is or will be a party or the consummation of the transactions contemplated hereby or thereby and (iv) for Liabilities that are not and would not reasonably be expected to be, individually or in the aggregate, material to the Group Companies, taken as a whole, no Group Company has any Liabilities of the type required to be set forth on a balance sheet in accordance with GAAPLiabilities.
(d) The Group Companies have established and maintain systems of internal accounting controls that are designed to provide, in all material respects, reasonable assurance that (i) all transactions are executed in accordance with management’s authorization and (ii) all transactions are recorded as necessary to permit preparation of proper and accurate financial statements in accordance with GAAP IFRS and to maintain accountability for the Group Companies’ assets. The Group Companies maintain and, for all periods covered by the Financial Statements, have maintained books and records of the Group Companies in the ordinary course of business that are accurate and complete and reflect the revenues, expenses, assets and liabilities of the Group Companies in all material respects.
(e) Except as set forth in Section 3.4(e) of the Company Disclosure ScheduleSince January 1, since the incorporation of the Company2019, no Group Company has received any written complaint, allegation, assertion or claim that there is (i) “significant deficiency” in the internal controls over financial reporting of the Group Companies, (ii) a “material weakness” in the internal controls over financial reporting of the Group Companies or (iii) fraud, whether or not material, that involves management or other employees of the Group Companies who have a significant role in the internal controls over financial reporting of the Group Companies.
Appears in 1 contract
Sources: Business Combination Agreement (BOA Acquisition Corp.)
Financial Statements; Undisclosed Liabilities. (a) The Company has made available to HighCape JAWS a true and complete copy of (i) the audited consolidated unaudited balance sheets sheet of the Group Companies Company as of December 31, 20192020 (the “Latest Balance Sheet”) and December 31, 2019 and the related audited consolidated unaudited statements of operations and comprehensive loss, convertible preferred stock and stockholders’ deficit and cash flows of the Group Companies for each of the periods then ended, (ii) the unaudited consolidated balance sheets of the Group Companies as of December 31, 2020, and the related unaudited consolidated statements of operations and comprehensive loss, convertible preferred stock and stockholders’ deficit and cash flows of the Group Companies for the twelve (12)-month period then ended, and (iii) the unaudited consolidated balance sheets of the Group Companies as of December 31, 2019 and December 31, 2020 (the “Latest Balance Sheet”) and the related unaudited consolidated statements of operations and comprehensive loss, convertible preferred stock and stockholders’ deficit and cash flows of the Group Companies Company for each of the periods then ended (clauses (i), (ii), and (iii) are collectively, the “Financial Statements”), each of which are attached as Section 3.4(a) of the Company Disclosure Schedules. Each of the Financial Statements (including the notes thereto) (A) was prepared in accordance with GAAP applied on a consistent basis throughout the periods indicated (except as may be indicated in for the notes theretoabsence of footnotes or the inclusion of limited footnotes and other presentation items and normal year-end audit adjustments), (B) fairly presents, in all material respects, the financial position, results of operations and cash flows of the Group Companies Company as at the date thereof and for the period indicated therein, except as otherwise specifically noted therein, therein and (C) in the case of the Financial Statements included in clause (iii) only, were prepared in accordance with the standards of the PCAOBderived from, and comply accurately reflect in all material respects with respects, the applicable accounting requirements books and with the rules and regulations records of the SEC, the Exchange Act and the Securities Act in effect as of the respective dates thereof (including Regulation S-X or Regulation S-K, as applicable)Company.
(b) The audited consolidated balance sheets of the Group Companies as of December 31, 2019 and December 31, 2020, and the related audited consolidated statements of operations and comprehensive loss, convertible preferred stock and stockholders’ deficit and cash flows of the Group Companies for each of the periods then ended (the “Closing Required Company Audited Financial Statements”), when delivered following the date of this Agreement in accordance with Section 5.175.16, (i) will be prepared in accordance with GAAP applied on a consistent basis throughout the periods indicated (except as may be indicated in the notes thereto), (ii) will fairly present, in all material respects, the financial position, results of operations and cash flows of the Group Companies Company as at the date thereof and for the period indicated therein, except as otherwise specifically noted therein, therein and (iii) will be audited in accordance with the standards of the PCAOB and will contain an unqualified report of the Company’s auditors, and (iv) will comply in all material respects with the applicable accounting requirements and with the rules and regulations of the SEC, the Exchange Act and the Securities Act in effect as of the respective dates thereof (including Regulation S-X or Regulation S-K, as applicable).
(c) Except (i) as set forth on the face of the Latest Balance Sheet, (ii) for Liabilities incurred in the ordinary course of business since the date of the Latest Balance Sheet Date (none of which is a Liability for breach of contract, breach of warranty, tort, infringement or violation of Law), (iii) for Liabilities incurred in connection with the negotiation, preparation or execution of this Agreement or any Ancillary Documents, the performance of their respective its covenants or agreements in this Agreement or any Ancillary Document or the consummation of the transactions contemplated hereby or thereby and (iv) for Liabilities that are not and would not reasonably be expected to be, individually or in the aggregate, material to the Group CompaniesCompany, taken as a whole, no Group the Company has any no Liabilities of the type required to be set forth on a balance sheet in accordance with GAAP.
(d) The Group Companies have Except as set forth in Section 3.4(d) of the Company Disclosure Schedule, the Company has established and maintain maintains systems of internal accounting controls that are designed to provide, in all material respects, reasonable assurance that (iin the context of a privately held company) all regarding the execution of transactions are executed in accordance with management’s authorization and (ii) all the recording of transactions are recorded as necessary to permit preparation of proper and accurate financial statements in accordance with GAAP and to maintain accountability for the Group Companies’ assetsGAAP. The Group Companies maintain Company maintains and, for all periods covered by the Financial Statements, have has maintained books and records of the Group Companies Company in the ordinary course of business that are accurate and complete in all material respects and reflect the revenues, expenses, assets and liabilities of the Group Companies Company in all material respects.
(e) Except as set forth in Section 3.4(e) of the Company Disclosure Schedule, since its incorporation the incorporation of the Company, no Group Company has not received any written complaint, allegation, assertion or claim that there is (i) “significant deficiency” in the internal controls over financial reporting of the Group Companies, (ii) a “material weakness” in the internal controls over financial reporting of the Group Companies or (iii) fraud, whether or not material, that involves management or other employees of the Group Companies Company who have a significant role in the internal controls over financial reporting of the Group CompaniesCompany.
Appears in 1 contract
Sources: Business Combination Agreement (JAWS Spitfire Acquisition Corp)
Financial Statements; Undisclosed Liabilities. (aSection 3.6(a) The Company has made available to HighCape a of the Disclosure Schedule contains true and complete copy copies of Company’s (i) consolidated audited financial statements consisting of the audited consolidated balance sheets sheet of the Group Companies Company and its Subsidiaries as of December 31, 2019, and the related audited consolidated statements of operations and comprehensive loss, convertible preferred stock and stockholders’ deficit and cash flows of the Group Companies for each of the periods then ended, (ii) the unaudited consolidated balance sheets of the Group Companies as of December 31, 2020, and the related unaudited consolidated statements of operations and comprehensive loss, convertible preferred stock and stockholders’ deficit and cash flows of the Group Companies for the twelve (12)-month period then ended, and (iii) the unaudited consolidated balance sheets of the Group Companies as of December 31, 2019 2022 and December 31, 2020 2021 and the related statements of operations, members’ equity and cash flows for the years then ended (the “Audited Financial Statements”) and (ii) consolidated unaudited financial statements consisting of the consolidated unaudited balance sheet (the “Latest Balance Sheet”) of Company and its Subsidiaries as of December 31, 2023 (the “Latest Balance Sheet Date”) and the related consolidated unaudited consolidated statements of operations and comprehensive lossoperations, convertible preferred stock and stockholdersmembers’ deficit equity and cash flows of for the Group Companies for each of the periods twelve- month period then ended (clauses (i), (ii), the “Interim Financial Statements” and (iii) are collectivelytogether with the Audited Financial Statements, the “Financial Statements”), each of which are attached as Section 3.4(a) of the Company Disclosure Schedules. Each of the The Financial Statements (including have been prepared from, and are consistent with, the notes thereto) (A) was prepared books and records of Company and its Subsidiaries and in accordance with GAAP applied on a consistent basis throughout the periods indicated (except as may be indicated period involved, subject, in the case of the Interim Financial Statements, to normal and recurring year-end adjustments (none of which would be material, individually or in the aggregate) and the absence of notes thereto(that, if presented, would not differ materially from those included in the Audited Financial Statements), (B) fairly presentsand, on that basis, present fairly, in all material respects, the financial position, results condition of operations Company and cash flows of the Group Companies as at the date thereof and for the period indicated therein, except as otherwise specifically noted therein, and (C) in the case of the Financial Statements included in clause (iii) only, were prepared in accordance with the standards of the PCAOB, and comply in all material respects with the applicable accounting requirements and with the rules and regulations of the SEC, the Exchange Act and the Securities Act in effect its Subsidiaries as of the respective dates thereof (including Regulation S-X or Regulation S-K, as applicable).
they were prepared and the results of the operations of Company and its Subsidiaries for the periods indicated. (b) The audited consolidated balance sheets Company and its Subsidiaries have established and maintained internal controls that are sufficient to provide reasonable assurances that transactions are properly recorded in their respective accounting records to permit the preparation of the Group Companies as of December 31, 2019 and December 31, 2020, and the related audited consolidated statements of operations and comprehensive loss, convertible preferred stock and stockholders’ deficit and cash flows of the Group Companies for each of the periods then ended (the “Closing Company Audited Financial Statements”), when delivered following the date of this Agreement Statements in accordance with Section 5.17GAAP. There are no significant deficiencies in the financial reporting of any of Company or its Subsidiaries which are reasonably likely to materially impact the ability to record, process, summarize and report financial information. Since the Lookback Date, Company and its Subsidiaries have not received written notice, and Company and its Subsidiaries do not otherwise have Knowledge, (i) will be prepared in accordance with GAAP applied on a consistent basis throughout the periods indicated (except as may be indicated in the notes thereto), (ii) will fairly present, in all material respects, the financial position, results of operations and cash flows of the Group Companies as at the date thereof and for the period indicated therein, except as otherwise specifically noted therein, (iii) will be audited in accordance with the standards of the PCAOB and will contain an unqualified report of the Company’s auditors, and (iv) will comply in all material respects with the applicable accounting requirements and with the rules and regulations of the SEC, the Exchange Act and the Securities Act in effect as of the respective dates thereof (including Regulation S-X or Regulation S-K, as applicable).
(c) Except (i) as set forth on the face of the Latest Balance Sheet, (ii) for Liabilities incurred in the ordinary course of business since the Latest Balance Sheet Date (none of which is a Liability for breach of contract, breach of warranty, tort, infringement or violation of Law), (iii) for Liabilities incurred in connection with the negotiation, preparation or execution of this Agreement or any Ancillary Documents, the performance of their respective covenants or agreements in this Agreement or any Ancillary Document or the consummation of the transactions contemplated hereby or thereby and (iv) for Liabilities that are not and would not reasonably be expected to be, individually or in the aggregate, material to the Group Companies, taken as a whole, no Group Company has any Liabilities of the type required to be set forth on a balance sheet in accordance with GAAP.
(d) The Group Companies have established and maintain systems of internal accounting controls that are designed to provide, in all material respects, reasonable assurance that (i) all transactions are executed in accordance with management’s authorization and (ii) all transactions are recorded as necessary to permit preparation of proper and accurate financial statements in accordance with GAAP and to maintain accountability for the Group Companies’ assets. The Group Companies maintain and, for all periods covered by the Financial Statements, have maintained books and records of the Group Companies in the ordinary course of business that are accurate and complete and reflect the revenues, expenses, assets and liabilities of the Group Companies in all material respects.
(e) Except as set forth in Section 3.4(e) of the Company Disclosure Schedule, since the incorporation of the Company, no Group Company has received any written complaint, allegation, assertion or claim that there is (i) “significant deficiency” in the internal controls over financial reporting of the Group Companies, (ii) a “material weakness” in the internal controls over financial reporting of the Group Companies or (iii) fraud, whether or not material, fraud that involves management or other employees of the Group Companies Company or its Subsidiaries who have a significant role in the internal controls over financial reporting reporting, (ii) of any claim or allegation regarding any of the Group Companiesforegoing or (iii) from its independent accountants regarding any of the foregoing.
Appears in 1 contract
Sources: Membership Interest Purchase Agreement (Titan International Inc)
Financial Statements; Undisclosed Liabilities. (a) The Company has made available delivered to HighCape a true Parent true, correct and complete copy copies of (ia) the unaudited consolidated balance sheet, as of September 30, 2002 of the Company and the Subsidiaries (the "Latest Balance Sheet") and the unaudited consolidated statements of income, stockholders' equity and cash flows of the Company and the Subsidiaries for the 9-month period ended September 30, 2002 (such statements of income, stockholders' equity and cash flows and the Latest Balance Sheet being herein referred to as the "Latest Financial Statements") and (b) the audited consolidated balance sheets of the Group Companies sheet, as of December 31, 20191999, 2000 and 2001 of the Company and the related Subsidiaries and the audited consolidated statements of operations and comprehensive lossincome, convertible preferred stock and stockholders’ deficit ' equity and cash flows of the Group Companies Company and the Subsidiaries for each of the periods then ended, (ii) the unaudited consolidated balance sheets of the Group Companies as of years ended December 31, 20201999, 2000 and 2001 (collectively, the "Annual Financial Statements"). The Latest Financial Statements and the Annual Financial Statements are, and the related unaudited consolidated statements of operations Estimated Closing Balance Sheet will be, based upon the information contained in the books and comprehensive loss, convertible preferred stock and stockholders’ deficit and cash flows of the Group Companies for the twelve (12)-month period then ended, and (iii) the unaudited consolidated balance sheets of the Group Companies as of December 31, 2019 and December 31, 2020 (the “Latest Balance Sheet”) and the related unaudited consolidated statements of operations and comprehensive loss, convertible preferred stock and stockholders’ deficit and cash flows of the Group Companies for each of the periods then ended (clauses (i), (ii), and (iii) are collectively, the “Financial Statements”), each of which are attached as Section 3.4(a) records of the Company Disclosure Schedules. Each and the Subsidiaries and fairly and accurately present the financial condition of the Company and the Subsidiaries as of the dates thereof and results of operations for the periods referred to therein. The Annual Financial Statements (including have been prepared in accordance with GAAP, consistently applied. The Latest Financial Statements have been, and the notes thereto) (A) was Estimated Closing Balance Sheet will be, prepared in accordance with GAAP consistently applied on a consistent basis throughout the periods indicated as applicable to unaudited interim financial statements (except as and thus may be indicated in the not contain all notes theretoand may not contain prior period comparative data which are required for compliance with GAAP), and reflect all adjustments necessary to a fair and accurate statement of the financial condition and results of operations for the interim periods presented.
(Bb) fairly presentsAll accounts, books and ledgers material to the business of the Company and the Subsidiaries are properly and accurately kept, are complete in all material respects, and there are no material inaccuracies or discrepancies contained or reflected therein. Neither the financial positionCompany nor any Subsidiary has any of its material records, results systems, controls, data, or information recorded, stored, maintained or operated by means which (including all means of operations access thereto and cash flows therefrom) are not under the exclusive ownership (excluding licensed software programs) and direct control of the Group Companies as at Company or the date thereof and for the period indicated therein, except as otherwise specifically noted therein, and (C) in the case of the Financial Statements included in clause (iii) only, were prepared in accordance with the standards of the PCAOB, and comply in all material respects with the applicable accounting requirements and with the rules and regulations of the SEC, the Exchange Act and the Securities Act in effect as of the respective dates thereof (including Regulation S-X or Regulation S-K, as applicable).
(b) The audited consolidated balance sheets of the Group Companies as of December 31, 2019 and December 31, 2020, and the related audited consolidated statements of operations and comprehensive loss, convertible preferred stock and stockholders’ deficit and cash flows of the Group Companies for each of the periods then ended (the “Closing Company Audited Financial Statements”), when delivered following the date of this Agreement in accordance with Section 5.17, (i) will be prepared in accordance with GAAP applied on a consistent basis throughout the periods indicated (except as may be indicated in the notes thereto), (ii) will fairly present, in all material respects, the financial position, results of operations and cash flows of the Group Companies as at the date thereof and for the period indicated therein, except as otherwise specifically noted therein, (iii) will be audited in accordance with the standards of the PCAOB and will contain an unqualified report of the Company’s auditors, and (iv) will comply in all material respects with the applicable accounting requirements and with the rules and regulations of the SEC, the Exchange Act and the Securities Act in effect as of the respective dates thereof (including Regulation S-X or Regulation S-K, as applicable)Subsidiaries.
(c) Except (i) as set forth on and to the face of extent reflected in the Latest Balance Sheet, neither the Company nor any Subsidiary has any liabilities or obligations (iiwhether accrued, absolute, contingent, unliquidated or otherwise, whether due or to become due, whether known or unknown, and regardless of when asserted) for Liabilities incurred arising out of transactions or events heretofore entered into, or any action or inaction, or any state of facts existing, with respect to or based upon transactions or events heretofore occurring, except liabilities which have arisen after the date of the Latest Balance Sheet in the ordinary course of business since business, consistent with past custom and practice in an amount not more than $100,000 in the Latest aggregate and which are set forth on the Closing Balance Sheet Date (none of which is a Liability liability for breach of contract, breach of warranty, violation of Applicable Law, tort, infringement infringement, claim or violation of Lawlawsuit), (iii) for Liabilities incurred in connection with the negotiation, preparation or execution of this Agreement or any Ancillary Documents, the performance of their respective covenants or agreements in this Agreement or any Ancillary Document or the consummation of the transactions contemplated hereby or thereby and (iv) for Liabilities that are not and would not reasonably be expected to be, individually or in the aggregate, material to the Group Companies, taken as a whole, no Group Company has any Liabilities of the type required to be set forth on a balance sheet in accordance with GAAP.
(d) The Group Companies have established and maintain systems of internal accounting controls that are designed to provide, in all material respects, reasonable assurance that (i) all transactions are executed in accordance with management’s authorization and (ii) all transactions are recorded as necessary to permit preparation of proper and accurate financial statements in accordance with GAAP and to maintain accountability for the Group Companies’ assets. The Group Companies maintain and, for all periods covered by the Financial Statements, have maintained books and records of the Group Companies in the ordinary course of business that are accurate and complete and reflect the revenues, expenses, assets and liabilities of the Group Companies in all material respects.
(e) Except as set forth in Section 3.4(e) of the Company Disclosure Schedule, since the incorporation of the Company, no Group Company has received any written complaint, allegation, assertion or claim that there is (i) “significant deficiency” in the internal controls over financial reporting of the Group Companies, (ii) a “material weakness” in the internal controls over financial reporting of the Group Companies or (iii) fraud, whether or not material, that involves management or other employees of the Group Companies who have a significant role in the internal controls over financial reporting of the Group Companies.
Appears in 1 contract
Sources: Merger Agreement (American Medical Systems Holdings Inc)
Financial Statements; Undisclosed Liabilities. (a) Section 3.7(a) of the Disclosure Letter contains the audited financial statements of the Division as of and for the two years ended December 31, 2005 (collectively, the "Audited Financial Statements"). The Company has made available to HighCape a true Audited Financial Statements and complete copy of notes thereto (i) have been prepared from the audited consolidated balance sheets books and records of the Group Companies as of December 31, 2019, Seller and the related audited consolidated statements of operations and comprehensive loss, convertible preferred stock and stockholders’ deficit and cash flows of the Group Companies for each of the periods then endedDivision, (ii) the unaudited consolidated balance sheets of the Group Companies have been prepared in accordance with GAAP, consistently applied (except as of December 31, 2020, and the related unaudited consolidated statements of operations and comprehensive loss, convertible preferred stock and stockholders’ deficit and cash flows of the Group Companies for the twelve (12)-month period then ended, and (iii) the unaudited consolidated balance sheets of the Group Companies as of December 31, 2019 and December 31, 2020 (the “Latest Balance Sheet”) and the related unaudited consolidated statements of operations and comprehensive loss, convertible preferred stock and stockholders’ deficit and cash flows of the Group Companies for each of the periods then ended (clauses (i), (iidisclosed therein), and (iii) are collectively, the “Financial Statements”), each of which are attached as Section 3.4(a) of the Company Disclosure Schedules. Each of the Financial Statements (including the notes thereto) (A) was prepared in accordance with GAAP applied on a consistent basis throughout the periods indicated (except as may be indicated in the notes thereto), (B) fairly presents, in all material respects, the financial position, results of operations and cash flows of the Group Companies as at the date thereof and for the period indicated therein, except as otherwise specifically noted therein, and (C) in the case of the Financial Statements included in clause (iii) only, were prepared in accordance with the standards of the PCAOB, and comply present in all material respects with the applicable accounting requirements financial condition and with the rules and regulations results of operations of the SEC, Division for the Exchange Act and the Securities Act in effect as of the respective dates thereof (including Regulation S-X or Regulation S-Kperiods presented, as applicable)more fully described in the notes to the Audited Financial Statements.
(b) The audited consolidated balance sheets Section 3.7(b)(i) of the Group Companies as of December 31, 2019 and December 31, 2020, and Disclosure Letter contains the related audited consolidated unaudited interim pro forma income statements of operations and comprehensive loss, convertible preferred stock and stockholders’ deficit and cash flows of the Group Companies Division prepared on a quarterly basis for each of the periods then quarters during the nine-month period ended September 30, 2006 (the “Closing Company Audited Financial "Interim Pro Forma Income Statements”"), when delivered following the date of this Agreement in accordance with Section 5.17, . The Interim Pro Forma Income Statements (i) will be are pro forma for the ongoing and continuing operations of the Division, prepared in accordance with GAAP applied on a consistent basis throughout the periods indicated (except as may be indicated manner set forth in Section 3.7(b)(ii) of the notes thereto)Disclosure Letter, (ii) will fairly present, in all material respects, have been prepared from the financial position, results books and records of operations Seller and cash flows of the Group Companies as at the date thereof and for the period indicated therein, except as otherwise specifically noted thereinDivision, (iii) will be audited fairly present in accordance with all material respects the standards results of operations of the PCAOB and will contain an unqualified report Division on the basis of reporting to Seller for the Company’s auditorsperiods presented, and (iv) will comply reflect the results of operations of the Division as presented in all material respects Seller's quarterly segment reporting in its interim report on Form 10-Q for the nine months ended September 30, 2006, filed with the applicable accounting requirements Securities and with Exchange Commission (the rules and regulations of the SEC, the Exchange Act and the Securities Act in effect as of the respective dates thereof (including Regulation S"September 30 Form 10-X or Regulation S-K, as applicableQ").
(c) Except Section 3.7(c) of the Disclosure Letter contains the unaudited pro forma financial information of the Division as of and for the year ended December 31, 2005 prepared on a quarterly basis (collectively, the "2005 Pro Forma Financial Information"). The 2005 Pro Forma Financial Information (i) as are pro forma for the ongoing and continuing operations of the Division, prepared in the manner set forth on the face in Section 3.7(b)(ii) of the Latest Balance SheetDisclosure Letter, (ii) for Liabilities incurred in has been prepared from the ordinary course books and records of business since Seller and the Latest Balance Sheet Date (none of which is a Liability for breach of contractDivision, breach of warranty, tort, infringement or violation of Law), and (iii) for Liabilities incurred fairly presents in connection with all material respects the negotiation, preparation or execution financial condition and results of this Agreement or any Ancillary Documents, the performance of their respective covenants or agreements in this Agreement or any Ancillary Document or the consummation operations of the transactions contemplated hereby or thereby and (ivDivision on the basis of presentation outlined in Section 3.7(c) for Liabilities that are not and would not reasonably be expected to be, individually or in the aggregate, material to the Group Companies, taken as a whole, no Group Company has any Liabilities of the type required to be set forth on a balance sheet in accordance with GAAPDisclosure Letter, which presents the results of operations and financial position of the Division being sold by Seller and acquired by Buyer.
(d) The Group Companies have established and maintain systems Section 3.7(d) of internal accounting controls that are designed to provide, in all material respects, reasonable assurance that the Disclosure Letter contains the following reconciliations:
(i) all transactions are executed From the segment financial information presented in accordance Seller's annual report on Form 10-K for the fiscal year ended December 31, 2005, filed with management’s authorization the Securities and Exchange Commission (the "2005 Segment Information") to the 2005 Pro Forma Financial Information;
(ii) all transactions are recorded From the 2005 Segment Information to the Audited Financial Statements; and
(iii) From the quarterly segment income statement information presented in Seller's September 30 Form 10-Q (the "Interim Segment Information") to the Interim Pro Forma Income Statement. The reconciliations set forth in Section 3.7(d) of the Disclosure Letter have been fairly presented and properly disclose the reconciling items from each of (i) the 2005 Segment Information to the 2005 Pro Forma Financial Information, (ii) the 2005 Segment Information to the Audited Financial Statements and (iii) the Interim Segment Information to the Interim Pro Forma Income Statement as necessary to permit preparation of proper and accurate financial statements in accordance with GAAP and to maintain accountability for the Group Companies’ assets. The Group Companies maintain and, for all periods covered by the Financial Statements, have maintained books and records presented in Section 3.7(d) of the Group Companies in the ordinary course Disclosure Letter (details of business that are accurate and complete and reflect the revenues, expenses, assets and liabilities of the Group Companies in all material respectswhich have been disclosed previously to Buyer).
(e) Except as set forth in Section 3.4(e3.7(e) of the Company Disclosure ScheduleLetter, since the incorporation of the CompanyDecember 31, no Group Company has received any written complaint2005, allegation, assertion or claim that there is except for liabilities and obligations (i) “significant deficiency” disclosed in the internal controls over financial reporting of Audited Financial Statements or the Group Companiesnotes thereto, (ii) a “material weakness” incurred since December 31, 2005 in the internal controls over financial reporting ordinary course of the Group Companies business, consistent with past practice, or (iii) fraud, whether or not material, that involves management or other employees disclosed in Section 3.7(b) of the Group Companies who have a significant role in Disclosure Letter, neither the internal controls over financial reporting Company nor any of the Group CompaniesDivision Entities has incurred any material liabilities or obligations (whether direct or indirect, accrued, contingent or otherwise).
Appears in 1 contract
Financial Statements; Undisclosed Liabilities. (a) The Company has made available to HighCape ACAH a true and complete copy of (i) the audited unaudited condensed consolidated balance sheets sheet of the Group Companies Company and the Company Subsidiaries as of December 31, 2019, 2020 and the related audited unaudited condensed consolidated statements of operations and comprehensive loss, convertible preferred stock and stockholders’ deficit and cash flows income statement of the Group Companies Company and the Company Subsidiaries for each of the periods year then ended, (ii) the unaudited audited consolidated balance sheets sheet of the Group Companies as of December 31, 2020, Company and the related unaudited consolidated statements of operations and comprehensive loss, convertible preferred stock and stockholders’ deficit and cash flows of the Group Companies for the twelve (12)-month period then ended, and (iii) the unaudited consolidated balance sheets of the Group Companies Company Subsidiaries as of December 31, 2019 and December 31the related audited consolidated statement of operations, 2020 changes in redeemable convertible preferred stock and stockholders’ equity and cash flows of the Company and the Company Subsidiaries for the year then ended and (iii) the unaudited balance sheet of the Company as of June 30, 2021 (the “Latest Balance Sheet”) and the related unaudited consolidated statements of operations and comprehensive loss, convertible preferred stock and stockholders’ deficit and cash flows of the Group Companies Company and the Company Subsidiaries for each of the periods six-month period then ended (the financial statements described in clauses (i)) , (ii), ) and (iii) are collectively), the “Financial Statements”), each of which Financial Statements are attached as Section 3.4(a3.5(a) of the Company Disclosure Schedules. Each of the The Financial Statements (including the notes thereto) (A) was were prepared in accordance with GAAP applied on a consistent basis throughout the periods indicated (except as may be specifically indicated in the notes thereto), (B) fairly presentspresent, in all material respects, the financial position, position and results of operations and cash flows of the Group Companies Company and the Company Subsidiaries as at the date thereof and for the period indicated therein, except as otherwise specifically noted therein, therein and (C) in the case of the Financial Statements included in clause (iii) only, were prepared in accordance with the standards of the PCAOBderived from, and comply accurately reflect in all material respects with respects, the applicable accounting requirements books and with the rules and regulations records of the SEC, the Exchange Act Company and the Securities Act in effect as of the respective dates thereof (including Regulation S-X or Regulation S-K, as applicable)Company Subsidiaries.
(b) The audited consolidated balance sheets Each of the Group Companies financial statements or similar reports required to be included in the Registration Statement / Proxy Statement or any other filings to be made by the Company with the SEC in connection with the transactions contemplated by this Agreement or any Ancillary Document (the financial statements described in this sentence, which the Parties acknowledge shall, with respect to historical financial statements, solely consist of the audited financial statements as of and for the years ended December 31, 2019 and December 31, 2020, along with unaudited financial statements as of and for the related audited consolidated statements of operations and comprehensive lossapplicable quarterly interim periods thereafter, convertible preferred stock and stockholders’ deficit and cash flows of the Group Companies for each of the periods then ended (the “Closing Company Audited Financial Statements”), ) when delivered following the date of this Agreement in accordance with Section 5.175.20, (i) will be prepared in accordance with GAAP applied on a consistent basis throughout the periods indicated (except except, in the case of any audited financial statements, as may be specifically indicated in the notes thereto and subject to, in the case of any unaudited financial statements, normal year end audit adjustments (none of which is expected to be, individually or in the aggregate, material) and the absence of notes thereto), (ii) will fairly present, in all material respects, the financial position, results of operations operations, stockholders’ deficit and cash flows of the Group Companies Company and the Company Subsidiaries as at the date thereof and for the period indicated thereintherein (subject to, except as otherwise specifically noted thereinin the case of any unaudited financial statements, normal year end audit adjustments (none of which is expected to be, individually or in the aggregate, material)), (iii) in the case of any audited financial statements, will be audited in accordance with the standards of the PCAOB and will contain an unqualified report of the Company’s auditors, auditors and (iv) will comply in all material respects with the applicable accounting requirements and with the rules and regulations of the SEC, the Exchange Act and the Securities Act in effect as of the respective dates thereof date of such delivery (including Regulation S-X or Regulation S-K, as applicable).
(c) Except (i) as set forth on the face of the Latest Balance Sheet, (ii) for Liabilities incurred in the ordinary course of business since the date of the Latest Balance Sheet Date (none of which is are Liabilities related to a Liability for breach of contractContract, breach of warranty, tort, infringement infringement, Proceeding or violation of applicable Law), (iii) for Liabilities incurred in connection with the negotiation, preparation or execution of this Agreement or any Ancillary Documents, the performance by the Company or any Company Subsidiary of their respective its covenants or agreements in this Agreement or any Ancillary Document to which it is or will be a party or the consummation of the transactions contemplated hereby or thereby (including, for the avoidance of doubt, any Liabilities arising out of, or related to, any Proceeding related to this Agreement, the Ancillary Documents or the transactions contemplated hereby or thereby, including any stockholder demand or other stockholder Proceedings (including derivative claims) arising out of, or related to, any of the foregoing), and (iv) for Liabilities that are not and would not reasonably be expected to be, individually or in the aggregate, material to the Group CompaniesCompany and the Company Subsidiaries, taken as a whole, no Group neither the Company has nor any Company Subsidiary have any Liabilities of the type required to be set forth on a balance sheet in accordance with GAAP.
(d) The Group Companies have Company has established and maintain maintains systems of internal accounting controls that are designed to provide, in all material respects, reasonable assurance that (i) all transactions are executed in accordance with management’s authorization and (ii) all transactions are recorded as necessary to permit preparation of proper and accurate financial statements in accordance with GAAP and to maintain accountability for the Group Companies’ Company’s assets. The Group Companies maintain Company maintains and, for all periods covered by the Financial Statements and the Closing Company Financial Statements, have has maintained books and records of the Group Companies Company in the ordinary course of business that are accurate and complete and reflect the revenues, expenses, assets and liabilities of the Group Companies Company and the Company Subsidiaries, in each case, in all material respects.
(e) Except as set forth in Section 3.4(e) of Since the Company’s incorporation, neither the Company Disclosure Schedule, since the incorporation of the Company, no Group nor any Company Subsidiary has received any written complaint, allegation, assertion or claim that there is (i) “significant deficiency” in the internal controls over financial reporting of the Group CompaniesCompany and the Company Subsidiaries, (ii) a “material weakness” in the internal controls over financial reporting of the Group Companies Company and the Company Subsidiaries or (iii) fraud, whether or not material, that involves management or other employees of the Group Companies Company or any Company Subsidiary who have a significant role in the internal controls over financial reporting of the Group CompaniesCompany and the Company Subsidiaries.
Appears in 1 contract
Sources: Business Combination Agreement (Atlantic Coastal Acquisition Corp.)
Financial Statements; Undisclosed Liabilities. (a) The Company has furnished or made available to HighCape a true and complete copy Buyer copies of (i) the Company’s audited consolidated balance sheets of the Group Companies as of December 31, 20192023 and 2022, and the related audited consolidated statements of operations income and comprehensive lossincome, convertible preferred stock and changes in stockholders’ deficit equity and cash flows for the years ended December 31, 2023 and 2022, accompanied by the report thereon of the Group Companies for each Company’s independent auditors, and copies of the periods then ended, (ii) the Company’s unaudited consolidated balance sheets of the Group Companies sheet as of December 31, 20202024, and the related unaudited consolidated statements statement of operations income (the “Company Annual Financial Statements”). Company has also furnished or made available to Buyer copy of the Consolidated Reports of Condition and comprehensive lossIncome (the “Call Reports”) filed by Company Bank as of and for each period during the year ended December 31, convertible preferred stock 2024. The Company Annual Financial Statements and stockholdersthe Call Reports are collectively referred to in this Agreement as the “Company Financial Statements”.
(b) The Company Annual Financial Statements have been prepared from the books and records of Company and its Subsidiaries and are true, correct and complete in all material respects and fairly present, in all material respects, the consolidated financial position, results of operations, shareholders’ deficit equity and cash flows of Company at the Group Companies dates and for the twelve (12)-month period then ended, and (iii) the unaudited consolidated balance sheets of the Group Companies as of December 31, 2019 and December 31, 2020 (the “Latest Balance Sheet”) and the related unaudited consolidated statements of operations and comprehensive loss, convertible preferred stock and stockholders’ deficit and cash flows of the Group Companies for each of the periods then ended (clauses (i), (ii), and (iii) are collectively, the “Financial Statements”), each of which are attached as Section 3.4(a) of the Company Disclosure Schedules. Each of the Financial Statements (including the notes thereto) (A) was prepared indicated in accordance conformity with GAAP applied on a consistent basis throughout the periods indicated (except as may be indicated in the notes thereto)indicated, (B) fairly presentssubject to, in all material respects, the financial position, results of operations and cash flows of the Group Companies as at the date thereof and for the period indicated therein, except as otherwise specifically noted therein, and (C) in the case of the Financial Statements unaudited consolidated financial statements of Company included in clause the Company Annual Financial Statements, normal, recurring year-end adjustments (iii) only, were prepared in accordance with the standards effect of the PCAOBwhich has not had, and comply would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect with respect to the Company). The Call Reports are true, correct and complete in all material respects with the applicable accounting requirements and with the rules and regulations of the SEC, the Exchange Act and the Securities Act in effect as of the respective dates thereof (including Regulation S-X or Regulation S-K, as applicable).
(b) The audited consolidated balance sheets of the Group Companies as of December 31, 2019 and December 31, 2020, and the related audited consolidated statements of operations and comprehensive loss, convertible preferred stock and stockholders’ deficit and cash flows of the Group Companies for each of the periods then ended (the “Closing Company Audited Financial Statements”), when delivered following the date of this Agreement in accordance with Section 5.17, (i) will be prepared in accordance with GAAP applied on a consistent basis throughout the periods indicated (except as may be indicated in the notes thereto), (ii) will fairly present, in all material respects, the financial position, position of Company Bank and the results of its operations and cash flows of the Group Companies as at the date thereof dates, and for the period periods indicated therein, except as otherwise specifically noted therein, (iii) will be audited in accordance with the standards of the PCAOB and will contain an unqualified report of the Company’s auditors, and (iv) will comply in all material respects with the applicable accounting requirements and compliance with the rules and regulations of the SECapplicable federal banking authorities. The books and records of Company and its Subsidiaries have been, the Exchange Act and the Securities Act are being, maintained in effect as of the respective dates thereof (including Regulation S-X or Regulation S-K, as applicable)all material respects in accordance with GAAP and any other applicable legal and accounting requirements and reflect only actual transactions.
(c) Except for (i) as set forth on those liabilities that are fully reflected or reserved for in the face audited consolidated financial statements of Company included in the Latest Balance SheetCompany Annual Financial Statements, (ii) for Liabilities liabilities or obligations incurred in the ordinary course of business since the Latest Balance Sheet Date (none of which is a Liability for breach of contractDecember 31, breach of warranty, tort, infringement or violation of Law), 2023 in amounts consistent with past practice; (iii) for Liabilities incurred liabilities that have been discharged or paid in connection with full before the negotiation, preparation or execution of this Agreement or any Ancillary Documents, the performance of their respective covenants or agreements in this Agreement or any Ancillary Document or the consummation of the transactions contemplated hereby or thereby and Effective Date; (iv) for Liabilities liabilities arising from information Previously Disclosed; or (v) liabilities or obligations incurred directly as a result of this Agreement, neither Company nor any of its Subsidiaries has incurred any material liability of any nature whatsoever (whether absolute, accrued or contingent or otherwise and whether due or to become due), and there is no existing condition, situation or set of circumstances that are not and would not reasonably be expected to beresult in such a liability, individually other than pursuant to or as contemplated by this Agreement or that, either alone or when combined with all other liabilities of a type not described in the aggregate, material to the Group Companies, taken as a whole, no Group Company has any Liabilities of the type required to be set forth on a balance sheet in accordance with GAAP.
(d) The Group Companies have established and maintain systems of internal accounting controls that are designed to provide, in all material respects, reasonable assurance that clause (i) all transactions are executed in accordance with management’s authorization and or (ii) all transactions are recorded as necessary ), has had, or would be reasonably expected to permit preparation of proper and accurate financial statements in accordance have, a Material Adverse Effect with GAAP and respect to maintain accountability for the Group Companies’ assets. The Group Companies maintain and, for all periods covered by the Financial Statements, have maintained books and records of the Group Companies in the ordinary course of business that are accurate and complete and reflect the revenues, expenses, assets and liabilities of the Group Companies in all material respectsCompany.
(e) Except as set forth in Section 3.4(e) of the Company Disclosure Schedule, since the incorporation of the Company, no Group Company has received any written complaint, allegation, assertion or claim that there is (i) “significant deficiency” in the internal controls over financial reporting of the Group Companies, (ii) a “material weakness” in the internal controls over financial reporting of the Group Companies or (iii) fraud, whether or not material, that involves management or other employees of the Group Companies who have a significant role in the internal controls over financial reporting of the Group Companies.
Appears in 1 contract
Sources: Agreement and Plan of Reorganization (MetroCity Bankshares, Inc.)
Financial Statements; Undisclosed Liabilities. (a) The Company has made available to HighCape Schedule 2.4 contains (a) a true and complete copy of (i) the audited each Company’s unaudited consolidated balance sheets of the Group Companies sheet as of December 31, 20192018 and consolidated income statements for the twelve months then ended (collectively, the “Annual Financial Statements”) and the related audited consolidated statements (b) a true and complete copy of operations and comprehensive loss, convertible preferred stock and stockholders’ deficit and cash flows of the Group Companies for each of the periods then ended, (ii) the Company’s unaudited consolidated balance sheets of the Group Companies sheet as of December 31, 2020, and the related unaudited consolidated statements of operations and comprehensive loss, convertible preferred stock and stockholders’ deficit and cash flows of the Group Companies for the twelve (12)-month period then ended, and (iii) the unaudited consolidated balance sheets of the Group Companies as of December March 31, 2019 and December 31, 2020 consolidated income statement for the three months then ended (the “Latest Balance SheetInterim Financial Statements”) and the related unaudited consolidated statements of operations and comprehensive loss, convertible preferred stock and stockholders’ deficit and cash flows of the Group Companies for each of the periods then ended (clauses (i), (ii), and (iii) are collectivelytogether with the Annual Financial Statements, the “Financial Statements”), each of which are attached as Section 3.4(a) of the Company Disclosure Schedules. Each of the The Financial Statements (including the notes thereto) (A) was were prepared in accordance with GAAP in effect at the time of such preparation (except for the absence of footnotes in the case of the Interim Financial Statements or as disclosed in the notes thereto in the case of the Annual Financial Statements), applied on a consistent basis throughout the periods indicated (except as may be indicated in the notes thereto), (B) involved and fairly presents, present in all material respects, respects the consolidated financial position, position and results of operations and cash flows of the Group Companies each applicable Company as at the of such date thereof and for the period indicated thereinrespective periods covered thereby, except as otherwise specifically noted therein, and (C) subject to normal period-end adjustments that are not material in amount or effect in the case of the Interim Financial Statements. The Financial Statements included in clause (iii) only, were prepared from, and in accordance with the standards with, books and records of the PCAOB, applicable Company that have been maintained in material compliance with applicable legal and comply in all material respects with the applicable accounting requirements and reasonable business practices. Since May 1, 2016, no Company has been required to report any significant deficiency or material weakness in such Company’s accounting system with respect to the rules and regulations reporting of the SEC, the Exchange Act and the Securities Act in effect as of the respective dates thereof (including Regulation S-X or Regulation S-K, as applicable)gaming revenues to Gaming Authorities.
(b) The audited consolidated No Company has any Liabilities, whether or not accrued or unaccrued or contingent, required to be reflected, or reserved against, on a balance sheets of the Group Companies as of December 31, 2019 and December 31, 2020, and the related audited consolidated statements of operations and comprehensive loss, convertible preferred stock and stockholders’ deficit and cash flows of the Group Companies for each of the periods then ended (the “Closing Company Audited Financial Statements”), when delivered following the date of this Agreement in accordance with Section 5.17, (i) will be sheet prepared in accordance with GAAP applied other than Liabilities (i) reflected, or reserved against, on a consistent basis throughout the periods indicated (except as may be indicated balance sheet included in the notes thereto)Interim Financial Statements, (ii) will fairly present, incurred in all material respects, the financial position, results Ordinary Course of operations and cash flows Business after the date of the Group Companies as at the date thereof and for the period indicated therein, except as otherwise specifically noted thereinInterim Financial Statements, (iii) will be audited in accordance with the standards of the PCAOB and will contain an unqualified report of the Company’s auditors, and (iv) will comply in all material respects with the applicable accounting requirements and with the rules and regulations of the SEC, the Exchange Act and the Securities Act in effect as of the respective dates thereof (including Regulation S-X or Regulation S-K, as applicable).
(c) Except (i) as set forth on the face of the Latest Balance Sheet, (ii) for Liabilities incurred in the ordinary course of business since the Latest Balance Sheet Date (none of which is a Liability for breach of contract, breach of warranty, tort, infringement or violation of Law), (iii) for Liabilities incurred in connection with the negotiation, preparation or execution of this Agreement or any Ancillary Documents, the performance of their respective covenants or agreements in this Agreement or any Ancillary Document or the consummation of the transactions contemplated hereby or thereby and (iv) for Liabilities that are not and would not reasonably be expected to bethat, individually or in the aggregate, would not be material to the Group Companies, Companies taken as a whole, no Group Company has any Liabilities of the type required to be set forth on a balance sheet in accordance with GAAP.
(d) The Group Companies have established and maintain systems of internal accounting controls that are designed to provide, in all material respects, reasonable assurance that (i) all transactions are executed in accordance with management’s authorization and (ii) all transactions are recorded as necessary to permit preparation of proper and accurate financial statements in accordance with GAAP and to maintain accountability for the Group Companies’ assets. The Group Companies maintain and, for all periods covered by the Financial Statements, have maintained books and records of the Group Companies in the ordinary course of business that are accurate and complete and reflect the revenues, expenses, assets and liabilities of the Group Companies in all material respects.
(e) Except as set forth in Section 3.4(e) of the Company Disclosure Schedule, since the incorporation of the Company, no Group Company has received any written complaint, allegation, assertion or claim that there is (i) “significant deficiency” in the internal controls over financial reporting of the Group Companies, (ii) a “material weakness” in the internal controls over financial reporting of the Group Companies or (iii) fraud, whether or not material, that involves management or other employees of the Group Companies who have a significant role in the internal controls over financial reporting of the Group Companies.
Appears in 1 contract
Sources: Equity Purchase Agreement (Twin River Worldwide Holdings, Inc.)
Financial Statements; Undisclosed Liabilities. (a) The Company has made available to HighCape a true Schedule 3.5(a) sets forth the true, complete and complete copy correct copies of the following financial statements: (ia) the audited consolidated balance sheets sheet of the Group Companies Company as of each of December 31, 20192018 and December 31, 2019 and the related audited consolidated statements of operations and comprehensive loss, convertible preferred stock and stockholderschanges in shareholders’ deficit equity and cash flows of the Group Companies Company for each of the periods fiscal years then endedended (and footnotes thereto), and (iib) the unaudited consolidated balance sheets sheet of the Group Companies Company Entities as of December 31, 2020, and the related unaudited consolidated statements of operations and comprehensive loss, convertible preferred stock and stockholders’ deficit and cash flows of the Group Companies for the twelve (12)-month period then ended, and (iii) the unaudited consolidated balance sheets of the Group Companies as of December 31, 2019 and December 31, 2020 (the “Latest Balance Sheet”) and the related unaudited consolidated statements of operations and comprehensive lossincome, convertible preferred stock and stockholders’ deficit equity and cash flows of the Group Companies Company Entities for each of the periods 12-month period then ended (clauses (iended. Except as set forth in Schedule 3.5(a), (ii), and (iii) are collectively, the “Financial Statements”), each of which are attached as Section 3.4(a) of the Company Disclosure Schedules. Each of the Financial Statements foregoing financial statements (including the notes thereto, if any) (A) was have been prepared from and are consistent with the books and records of the Company Entities and present fairly, in all material respects, the consolidated financial position of the Company Entities as of the dates referred to for such financial statements and the consolidated results of their operations and their cash flows for the periods referred to therein, and have been prepared in accordance with GAAP GAAP, consistently applied on a consistent basis throughout the periods indicated covered thereby (except as may be indicated in the notes thereto)thereto and subject, (B) fairly presents, in all material respects, the financial position, results of operations and cash flows of the Group Companies as at the date thereof and for the period indicated therein, except as otherwise specifically noted therein, and (C) in the case of the Financial Statements included in clause unaudited financial statements, to the lack of footnote disclosures (iii) onlynone of which, were prepared in accordance with the standards of the PCAOBif presented, and comply in all material respects with the applicable accounting requirements and with the rules and regulations of the SEC, the Exchange Act and the Securities Act in effect as of the respective dates thereof (including Regulation S-X or Regulation S-K, as applicable).
(b) The audited consolidated balance sheets of the Group Companies as of December 31, 2019 and December 31, 2020, and the related audited consolidated statements of operations and comprehensive loss, convertible preferred stock and stockholders’ deficit and cash flows of the Group Companies for each of the periods then ended (the “Closing Company Audited Financial Statements”), when delivered following the date of this Agreement in accordance with Section 5.17, (i) will be prepared in accordance with GAAP applied on a consistent basis throughout the periods indicated (except as may be indicated would materially differ from those in the notes thereto), (ii) will fairly present, in all material respects, the audited financial position, results of operations and cash flows of the Group Companies as at the date thereof and for the period indicated therein, except as otherwise specifically noted therein, (iii) will be audited in accordance with the standards of the PCAOB and will contain an unqualified report statements of the Company’s auditors) and, and (iv) will comply in all material respects with the applicable accounting requirements and with the rules and regulations of the SEC, the Exchange Act and the Securities Act in effect as of the respective dates thereof (including Regulation S-X or Regulation S-K, as applicable).
(c) Except (i) as set forth on the face case of the Latest Balance Sheet, (ii) for Liabilities incurred in to normal and recurring year-end adjustments, the ordinary course of business since the Latest Balance Sheet Date (none effect of which is a Liability for breach of contract, breach of warranty, tort, infringement or violation of Law), (iii) for Liabilities incurred in connection with the negotiation, preparation or execution of this Agreement or any Ancillary Documents, the performance of their respective covenants or agreements in this Agreement or any Ancillary Document or the consummation of the transactions contemplated hereby or thereby and (iv) for Liabilities that are not and would not reasonably be expected to benot, individually or in the aggregate, be material to the Group CompaniesCompany Entities, taken as a whole, no Group Company has any Liabilities of the type required to be set forth on a balance sheet in accordance with GAAP).
(db) The Group Companies Except as set forth in Schedule 3.5(b), the Company Entities do not have established and maintain systems any material liabilities or obligations (whether matured or unmatured, fixed or contingent or otherwise) (collectively, “Liabilities”), and, to the Knowledge of internal accounting controls the Company, there is no existing condition that are designed would reasonably be expected to provideresult in such a material Liability, in all material respects, reasonable assurance that except (i) all transactions are executed Liabilities specifically reflected on and adequately reserved against in accordance with management’s authorization and the Latest Balance Sheet or specifically disclosed in the notes thereto, (ii) all transactions are recorded as necessary to permit preparation Liabilities in respect of proper and accurate financial statements in accordance with GAAP and to maintain accountability for trade or business obligations that have arisen since the Group Companies’ assets. The Group Companies maintain and, for all periods covered by the Financial Statements, have maintained books and records date of the Group Companies Latest Balance Sheet in the ordinary course of business that are accurate or under executory contracts entered into in the ordinary course of business (other than as a result of any breach or default thereunder) and complete and reflect the revenues, expenses, assets and liabilities (iii) Liabilities disclosed on another section of the Group Companies in all material respects.
(e) Schedules. Except as set forth shall be taken into account in the Closing Statement (as finally determined in accordance with Section 3.4(e) 1.12), there is no Indebtedness or Unpaid Sellers’ Transaction Expenses of the Company Disclosure Schedule, since the incorporation Entities as of the Company, no Group Company has received any written complaint, allegation, assertion or claim that there is (i) “significant deficiency” in the internal controls over financial reporting of the Group Companies, (ii) a “material weakness” in the internal controls over financial reporting of the Group Companies or (iii) fraud, whether or not material, that involves management or other employees of the Group Companies who have a significant role in the internal controls over financial reporting of the Group CompaniesAdjustment Calculation Time.
Appears in 1 contract
Sources: Merger Agreement (Charles River Laboratories International, Inc.)
Financial Statements; Undisclosed Liabilities. (a) The Company has made available delivered to HighCape a true and complete copy of (i) Parent the consolidated audited consolidated balance sheets financial statements of the Group Companies as of Company and its subsidiaries for the fiscal year ended December 31, 20192024 and its consolidated unaudited financial statements for the six-month period ended June 30, and the related audited consolidated 2025 (including, in each case, balance sheets, statements of operations and comprehensive loss, convertible preferred stock and stockholders’ deficit and cash flows of the Group Companies for each of the periods then ended, (ii) the unaudited consolidated balance sheets of the Group Companies as of December 31, 2020, and the related unaudited consolidated statements of operations and comprehensive loss, convertible preferred stock and stockholders’ deficit and cash flows of the Group Companies for the twelve flows) (12)-month period then ended, and (iii) the unaudited consolidated balance sheets of the Group Companies as of December 31, 2019 and December 31, 2020 (the “Latest Balance Sheet”) and the related unaudited consolidated statements of operations and comprehensive loss, convertible preferred stock and stockholders’ deficit and cash flows of the Group Companies for each of the periods then ended (clauses (i), (ii), and (iii) are collectively, the “Financial Statements”), each of which are attached as included in Section 3.4(a2.06(a) of the Company Disclosure SchedulesLetter. Each of the The Financial Statements (including i) are derived from and in accordance with the notes theretobooks and records of the Company Group, (ii) (A) was were prepared in accordance with GAAP generally accepted accounting principles in the United States (“GAAP”), except for the absence of footnotes in the unaudited Financial Statements, applied on a consistent basis throughout the periods indicated involved and (except as may be indicated in the notes thereto), (Biii) fairly presents, in all material respects, present the consolidated financial position, condition of the Company Group at the dates therein indicated and the consolidated results of operations and cash flows of the Company Group Companies as at the date thereof and for the period indicated thereinperiods therein specified (subject, except as otherwise specifically noted therein, and (C) in the case of unaudited interim period financial statements, to normal recurring year-end audit adjustments, none of which individually or in the Financial Statements included aggregate are or will be material in clause (iii) only, were prepared in accordance with the standards of the PCAOB, and comply in all material respects with the applicable accounting requirements and with the rules and regulations of the SEC, the Exchange Act and the Securities Act in effect as of the respective dates thereof (including Regulation S-X or Regulation S-K, as applicableamount).
(b) The audited Except as reflected or reserved against in the consolidated balance sheets sheet of the Group Companies Company as of December 31June 30, 2019 and December 31, 2020, and the related audited consolidated statements of operations and comprehensive loss, convertible preferred stock and stockholders’ deficit and cash flows of the Group Companies for each of the periods then ended 2025 (the “Closing Company Audited Financial StatementsBalance Sheet”), when delivered following no member of the date Company Group has any liability or obligation of this Agreement in accordance with Section 5.17any nature (whether accrued, absolute, contingent or otherwise) other than (i) will be prepared in accordance with GAAP applied on a consistent basis throughout the periods indicated (except as may be indicated in the notes thereto), (ii) will fairly present, in all material respects, the financial position, results of operations and cash flows of the Group Companies as at the date thereof and for the period indicated therein, except as otherwise specifically noted therein, (iii) will be audited in accordance with the standards of the PCAOB and will contain an unqualified report of the Company’s auditors, and (iv) will comply in all material respects with the applicable accounting requirements and with the rules and regulations of the SEC, the Exchange Act and the Securities Act in effect as of the respective dates thereof (including Regulation S-X liabilities or Regulation S-K, as applicable).
(c) Except (i) as set forth on the face of the Latest Balance Sheet, (ii) for Liabilities obligations incurred in the ordinary course of business since the Latest date of the Company Balance Sheet Date Sheet, (none ii) liabilities that are executory performance obligations arising under Contracts to which a member of which the Company Group is a Liability for party (other than to the extent arising from a breach thereof by any member of contract, breach of warranty, tort, infringement or violation of Law), the Company Group) and (iii) for Liabilities liabilities or obligations incurred in connection with the negotiation, preparation or execution of this Agreement or any Ancillary Documents, the performance of their respective covenants or agreements in this Agreement or any Ancillary Document or the consummation of the transactions contemplated hereby or thereby and Transactions.
(ivc) for Liabilities that are not and would not reasonably be expected to be, individually or in the aggregate, material to the Group Companies, taken as a whole, no Group The Company has any Liabilities established and maintains a system of internal accounting controls and processes designed to provide reasonable assurances regarding the type required to be set forth on a balance sheet reliability of financial reporting and the preparation of financial statements in accordance with GAAP. None of the Company and, to the knowledge of the Company, the Company’s independent auditors has identified (i) since January 1, 2020, any significant deficiency or material weakness in the design or operation of internal controls over financial reporting utilized by the Company Group, (ii) any illegal act or fraud, whether or not material, that involves the management or other employees of the Company Group, or any material complaint, allegation, assertion or claim regarding the foregoing, or (iii) improper, wrongful or fraudulent accounting or auditing practices, procedures, methodologies or methods of any member of the Company Group or their respective internal accounting controls or any material inaccuracy in the Financial Statements, or any material complaint, allegation, assertion or claim regarding the foregoing.
(d) The Group Companies have established and maintain systems of internal accounting controls that are designed to provide, in all material respects, reasonable assurance that (i) all transactions are executed in accordance with management’s authorization and (ii) all transactions are recorded as necessary to permit preparation of proper and accurate financial statements in accordance with GAAP and to maintain accountability for the Group Companies’ assets. The Group Companies maintain and, for all periods covered by the Financial Statements, have maintained books and records No member of the Company Group Companies has effected, entered into or created any securitization transaction or “off-balance sheet arrangement” (as defined in Item 303(c) or Regulation S-K under the ordinary course of business that are accurate and complete and reflect the revenues, expenses, assets and liabilities of the Group Companies in all material respectsExchange Act).
(e) Except as set forth in Section 3.4(e2.06(e) of the Company Disclosure ScheduleLetter, since all of the incorporation accounts, accounts receivable, notes and notes receivable of the Company Group (i) are reflected on the books and records of the Company, no Group and represent valid obligations arising from bona fide arm’s-length transactions in the ordinary course of business; (ii) are the valid and legally binding obligations of the parties owing such amounts to the Company Group, (iii) to the knowledge of the Company, are collectible in the ordinary course of business without the necessity of commencing any legal proceeding, (iv) to the knowledge of the Company, are not subject to counterclaim or setoff, (v) are not in dispute, nor, to the knowledge of the Company, is there any valid grounds for any such dispute and (vi) the Company has not received any written complaintnotice from any obligor thereof challenging the validity or collectability of any such accounts receivable. The reserve on the Financial Statements against the accounts receivable for refunds, allegationwarranties and bad debts is adequate and has been calculated in accordance with GAAP and in a manner consistent with past practice. No member of the Company Group has agreed to any credit, assertion deduction, free goods or claim that there services, discounts or other deferred price or quantity adjustment with respect to any of accounts receivable of any member of the Company Group.
(f) The VAT Refund Amount is (i) “significant deficiency” collectible in the internal controls over financial reporting ordinary course of business and the Company will receive payment of the Group Companies, (ii) a “material weakness” in VAT Refund Amount without the internal controls over financial reporting necessity of any further action being taken by the Group Companies or (iii) fraud, whether or not material, that involves management or other employees of the Group Companies who have a significant role in the internal controls over financial reporting of the Group CompaniesCompany.
Appears in 1 contract
Sources: Merger Agreement (CorMedix Inc.)
Financial Statements; Undisclosed Liabilities. Section 4.07 of the Seller Disclosure Schedule sets forth (a) The the unaudited statement of assets of the Company has made available to HighCape a true as of July 31, 2011 (the “Balance Sheet”), and complete copy the unaudited statement of profit and loss before taxes of the Company for the period ended July 31, 2011, and (ib) the audited consolidated balance sheets unaudited statement of assets of the Group Companies Company as of June 30, 2010, and the unaudited statement of profit and loss before taxes of the Company for the years ended December 31, 2019, and 2010 (the related audited consolidated financial statements of operations and comprehensive loss, convertible preferred stock and stockholders’ deficit and cash flows of the Group Companies for each of the periods then ended, described in clauses (iia) the unaudited consolidated balance sheets of the Group Companies as of December 31, 2020, and the related unaudited consolidated statements of operations and comprehensive loss, convertible preferred stock and stockholders’ deficit and cash flows of the Group Companies for the twelve (12)-month period then ended, and (iiib) the unaudited consolidated balance sheets of the Group Companies as of December 31above, 2019 and December 31, 2020 (the “Latest Balance Sheet”) and the related unaudited consolidated statements of operations and comprehensive loss, convertible preferred stock and stockholders’ deficit and cash flows of the Group Companies for each of the periods then ended (clauses (i), (ii), and (iii) are collectively, the “Financial Statements”), each of which are attached as Section 3.4(a) of the Company Disclosure Schedules. Each of the The Financial Statements (including have been prepared in conformity with the notes thereto) (A) was Seller Accounting Policies consistently applied, but have not been prepared in accordance with GAAP applied on a consistent basis throughout the periods indicated (except as may be indicated in the notes thereto)GAAP, (B) fairly presentsand do not include allocations for corporate overhead or other costs or inter-company revenue items, in and taking into account all material respects, the financial position, results of operations and cash flows of the Group Companies as at the date thereof and for the period indicated thereinforegoing qualifications, except as otherwise specifically noted therein, and (C) in the case of the Financial Statements included in clause (iii) only, were prepared in accordance with the standards of the PCAOB, and comply on that basis present in all material respects with the applicable accounting requirements consolidated financial condition and with the rules and regulations results of operations of the SEC, the Exchange Act and the Securities Act in effect Company as of the respective dates thereof and for the respective periods indicated. Except for matters reflected or reserved against in the Financial Statements, the Company does not have any liabilities (including Regulation S-X whether absolute, accrued, contingent, fixed or Regulation S-Kotherwise) of any nature that would be required under GAAP, as applicable).
(b) The audited consolidated balance sheets of the Group Companies as of December 31, 2019 and December 31, 2020, and the related audited consolidated statements of operations and comprehensive loss, convertible preferred stock and stockholders’ deficit and cash flows of the Group Companies for each of the periods then ended (the “Closing Company Audited Financial Statements”), when delivered following in effect on the date of this Agreement in accordance with Section 5.17Agreement, (i) will to be prepared in accordance with GAAP applied reflected on a consistent basis throughout the periods indicated (except as may be indicated in the notes thereto), (ii) will fairly present, in all material respects, the financial position, results of operations and cash flows of the Group Companies as at the date thereof and for the period indicated therein, except as otherwise specifically noted therein, (iii) will be audited in accordance with the standards of the PCAOB and will contain an unqualified report consolidated balance sheet of the Company’s auditors, and except liabilities that (ivA) will comply in all material respects with were incurred since the applicable accounting requirements and with the rules and regulations date of the SEC, the Exchange Act and the Securities Act in effect as of the respective dates thereof (including Regulation S-X or Regulation S-K, as applicable).
(c) Except (i) as set forth on the face of the Latest Balance Sheet, (ii) for Liabilities incurred such balance sheet in the ordinary course of business since provided such liabilities do not exceed $100,000 in the Latest Balance Sheet Date (none of which is a Liability for breach of contract, breach of warranty, tort, infringement or violation of Law)aggregate, (iiiB) for Liabilities are incurred in connection with the negotiation, preparation or execution of transactions contemplated by this Agreement or any Ancillary Documents, the performance of their respective covenants or agreements in this Agreement or any Ancillary Document or the consummation of the transactions contemplated hereby or thereby and (ivC) for Liabilities that are not and would not reasonably be expected to benot, individually or in the aggregate, material reasonably be expected to the Group Companies, taken as a whole, no Group Company has any Liabilities of the type required to be set forth on a balance sheet in accordance with GAAP.
(d) The Group Companies have established and maintain systems of internal accounting controls that are designed to provide, in all material respects, reasonable assurance that (i) all transactions are executed in accordance with management’s authorization and (ii) all transactions are recorded as necessary to permit preparation of proper and accurate financial statements in accordance with GAAP and to maintain accountability for the Group Companies’ assets. The Group Companies maintain and, for all periods covered by the Financial Statements, have maintained books and records of the Group Companies in the ordinary course of business that are accurate and complete and reflect the revenues, expenses, assets and liabilities of the Group Companies in all material respects.
(e) Except as set forth in Section 3.4(e) of the Company Disclosure Schedule, since the incorporation of the Company, no Group Company has received any written complaint, allegation, assertion or claim that there is (i) “significant deficiency” in the internal controls over financial reporting of the Group Companies, (ii) a “material weakness” in the internal controls over financial reporting of the Group Companies or (iii) fraud, whether or not material, that involves management or other employees of the Group Companies who have a significant role in the internal controls over financial reporting of the Group CompaniesMaterial Adverse Effect.
Appears in 1 contract
Financial Statements; Undisclosed Liabilities. (a) The Company has made available to HighCape Dragoneer a true and complete copy of (i) the audited consolidated balance sheets of the Group Companies as of December 31, 20192018 and December 31, 2019 and the related audited consolidated statements of operations and comprehensive loss, convertible preferred stock and stockholders’ deficit equity and cash flows of the Group Companies for each of the periods then ended, ended and (ii) the unaudited consolidated balance sheets sheet of the Group Companies as of December 31, 2020, and the related unaudited consolidated statements of operations and comprehensive loss, convertible preferred stock and stockholders’ deficit and cash flows of the Group Companies for the twelve (12)-month period then ended, and (iii) the unaudited consolidated balance sheets of the Group Companies as of December 31, 2019 and December 31, 2020 (the “Latest Balance Sheet”) and the related unaudited consolidated statements of operations and comprehensive loss, convertible preferred stock and stockholders’ deficit equity and cash flows of the Group Companies for each of the periods period then ended (clauses (i), ) and (ii), and (iii) are collectively, the “Financial Statements”), each of which are is attached as Section 3.4(a) of the Company Disclosure Schedules. Each of the Financial Statements (including the notes thereto) (A) was prepared in accordance with GAAP applied on a consistent basis throughout the periods indicated (except as may be indicated in the notes thereto), ) and (B) fairly presents, in all material respects, the financial position, results of operations and cash flows of the Group Companies as at the date thereof and for the period indicated therein, except as otherwise specifically noted therein, and (C) in the case of the Financial Statements included in clause (iii) only, were prepared in accordance with the standards of the PCAOB, and comply in all material respects with the applicable accounting requirements and with the rules and regulations of the SEC, the Exchange Act and the Securities Act in effect as of the respective dates thereof (including Regulation S-X or Regulation S-K, as applicable).
(b) The audited consolidated balance sheets sheet of the Group Companies as of December 31, 2019 and December 31, 2020, 2020 and the related audited consolidated statements of operations and comprehensive loss, convertible preferred stock and stockholders’ deficit equity and cash flows of the Group Companies for each of the periods period then ended (the “Closing Company Audited Financial Statements”), when delivered following the date of this Agreement in accordance with Section 5.17, (i) will be prepared in accordance with GAAP applied on a consistent basis throughout the periods indicated (except as may be indicated in the notes thereto), (ii) will fairly present, in all material respects, the financial position, results of operations and cash flows of the Group Companies as at the date thereof and for the period indicated therein, except as otherwise specifically noted therein, (iii) will be audited in accordance with the standards of the PCAOB and will contain an unqualified report of the Company’s auditors, auditors and (iv) will comply in all material respects with the applicable accounting requirements and with the rules and regulations of the SEC, the Exchange Act and the Securities Act in effect as of the respective dates thereof (including Regulation S-X or Regulation S-K, as applicable). Except as would not have a Company Material Adverse Effect, the financial position, results of operations and cash flows of the Group Companies presented in the Closing Company Financial Statements, when delivered following the date of this Agreement in accordance with Section 5.17, will be consistent with the financial position, results of operations and cash flows of the Group Companies presented in the unaudited Financial Statements as of and for the period ended December 31, 2020 made available to Dragoneer pursuant to Section 3.4(a)(ii), excluding, for the avoidance of doubt, differences in the footnote presentation to account for an audit in accordance with PCAOB standards.
(c) Except (i) as set forth on the face of the Latest Balance Sheet, (ii) for Liabilities incurred in the ordinary course of business since the date of the Latest Balance Sheet Date (none of which is a Liability for breach of contract, breach of warranty, tort, infringement or violation of Law), (iii) for Liabilities incurred in connection with the negotiation, preparation or execution of this Agreement or any Ancillary Documents, the performance of their respective covenants or agreements in this Agreement or any Ancillary Document or the consummation of the transactions contemplated hereby or thereby and (iv) for Liabilities that are not and would not reasonably be expected to be, individually or in the aggregate, material to the Group Companies, taken as a whole, no Group Company has any Liabilities of the type required to be set forth on a balance sheet in accordance with GAAP.
(d) The Group Companies have established and maintain systems of internal accounting controls that are designed to provide, in all material respects, reasonable assurance that (i) all transactions are executed in accordance with management’s authorization and (ii) all transactions are recorded as necessary to permit preparation of proper and accurate financial statements in accordance with GAAP and to maintain accountability for the Group Companies’ assets. The Group Companies maintain and, for all periods covered by the Financial Statements, have maintained books and records of the Group Companies in the ordinary course of business that are accurate and complete and reflect the revenues, expenses, assets and liabilities of the Group Companies in all material respects.
(e) Except as set forth in Section 3.4(e) of the Company Disclosure Schedule, since the incorporation of the Company, no Group Company has determined or otherwise received any written complaint, allegation, assertion or claim that there is (i) “significant deficiency” in the internal controls over financial reporting of the Group CompaniesCompanies to the Company’s knowledge, (ii) a “material weakness” in the internal controls over financial reporting of the Group Companies to the Company’s knowledge or (iii) fraud, whether or not material, that involves management or other employees of the Group Companies who have a significant role in the internal controls over financial reporting of the Group Companies.
Appears in 1 contract
Sources: Business Combination Agreement (Dragoneer Growth Opportunities Corp.)
Financial Statements; Undisclosed Liabilities. (a) The Company has made available to HighCape a Attached hereto as Section 3.4(a) of the Seller Schedules are true and complete copy copies of the following financial statements (such financial statements, the “Financial Statements”):
(i) the audited consolidated combined balance sheets of the Audit Group Companies as of December 31, 20192017, December 31, 2016 and December 31, 2015, and the related audited consolidated combined statements of operations and operations, comprehensive lossincome, convertible preferred stock and stockholders’ deficit equity and cash flows of the Audit Group Companies for each of the periods fiscal years then ended, ended (the “Audited Financials”); and
(ii) the unaudited consolidated combined balance sheets sheet of the Group Companies as of December 31June 30, 2020, and the related unaudited consolidated statements of operations and comprehensive loss, convertible preferred stock and stockholders’ deficit and cash flows of the Group Companies for the twelve (12)-month period then ended, and (iii) the unaudited consolidated balance sheets of the Group Companies as of December 31, 2019 and December 31, 2020 2018 (the “Latest Balance Sheet”) ), and the related unaudited consolidated combined statements of operations and comprehensive loss, convertible preferred stock and stockholders’ deficit income and cash flows for the six-month period then ended.
(b) The Financial Statements (i) have been prepared from the books and records of the Group Companies for each of the periods then ended (clauses (i)Companies, (ii), and (iii) are collectively, the “Financial Statements”), each of which are attached as Section 3.4(a) of the Company Disclosure Schedules. Each of the Financial Statements (including the notes thereto) (A) was have been prepared in accordance with GAAP applied on a consistent basis throughout the periods indicated (covered thereby, except as may be indicated in the notes thereto)thereto and subject, (B) fairly presents, in all material respects, the financial position, results of operations and cash flows of the Group Companies as at the date thereof and for the period indicated therein, except as otherwise specifically noted therein, and (C) in the case of unaudited Financial Statements, to the Financial Statements included in clause absence of footnotes and normal year-end adjustments, none of which are material and (iii) only, were prepared in accordance with the standards of the PCAOB, and comply in all material respects with the applicable accounting requirements and with the rules and regulations of the SEC, the Exchange Act and the Securities Act in effect as of the respective dates thereof (including Regulation S-X or Regulation S-K, as applicable).
(b) The audited consolidated balance sheets of the Group Companies as of December 31, 2019 and December 31, 2020, and the related audited consolidated statements of operations and comprehensive loss, convertible preferred stock and stockholders’ deficit and cash flows of the Group Companies for each of the periods then ended (the “Closing Company Audited Financial Statements”), when delivered following the date of this Agreement in accordance with Section 5.17, (i) will be prepared in accordance with GAAP applied on a consistent basis throughout the periods indicated (except as may be indicated in the notes thereto), (ii) will fairly present, in all material respects, the consolidated financial position, results of operations and cash flows position of the Group Companies as at (including the date thereof Transferred Assets and for the period indicated therein, except as otherwise specifically noted therein, (iiiAssumed Liabilities) will be audited in accordance with the standards of the PCAOB and will contain an unqualified report of the Company’s auditors, and (iv) will comply in all material respects with the applicable accounting requirements and with the rules and regulations of the SEC, the Exchange Act and the Securities Act in effect as of the respective dates thereof (including Regulation Sand their consolidated results of operations for the periods then ended, subject, in the case of unaudited Financial Statements, to the absence of footnotes and normal year-X or Regulation S-K, as applicable)end adjustments.
(c) Except (i) as set forth reflected on the face of or reserved against on the Latest Balance Sheet, (ii) for Liabilities incurred in the ordinary course of business since the date of the Latest Balance Sheet Date (none of which is a Liability for breach of contract, breach of warranty, tort, infringement or violation of Law), (iii) for Liabilities incurred in connection with the negotiation, preparation or execution of this Agreement or any Ancillary Documents, the performance of their respective covenants or agreements in this Agreement or any Ancillary Document or the consummation of the transactions contemplated hereby or thereby by this Agreement, and (iv) for Liabilities that are not and would not reasonably be expected to benot, individually or in the aggregate, material to the Group Companies, taken as a whole, no Group Company has any Liabilities that would be required by GAAP to be reflected on the consolidated financial statements of the type required Group Companies (or in the notes thereto). No Group Company is a party to be set forth on a any “off-balance sheet arrangement” (as defined in accordance with GAAPItem 303(a) of Regulation S-K promulgated by the SEC).
(d) The Each Group Companies have Company has established and maintain maintains systems of internal accounting controls that are designed to provide, in all material respects, reasonable assurance that (i) all transactions are executed in accordance with management’s authorization and (ii) all transactions are recorded as necessary to permit preparation of proper and accurate financial statements in accordance with GAAP and to maintain accountability for the Group Companies’ assets. The Group Companies maintain andSince January 1, for all periods covered by the Financial Statements, have maintained books and records of the Group Companies in the ordinary course of business that are accurate and complete and reflect the revenues, expenses, assets and liabilities of the Group Companies in all material respects.
(e) Except as set forth in Section 3.4(e) of the Company Disclosure Schedule, since the incorporation of the Company2015, no Group Company has received any written complaint, allegation, assertion or claim that there is (ix) “significant deficiency” in the internal controls over financial reporting of the Group Companies, (iiy) a “material weakness” in the internal controls over financial Table of Contents reporting of the Group Companies or (iiiz) fraud, whether or not material, that involves management or other employees of the Group Companies who have a significant role in the internal controls over financial reporting of the Group Companies.
(e) Section 3.4(e) of the Seller Schedules sets forth a list of all Indebtedness of the Group Companies as of the date hereof of the type described in clauses (i), (ii), (iv), (vi) or (to the extent related to the foregoing clauses) (x) of the definition of “Indebtedness”, including the principal amount of such Indebtedness, the outstanding balance as of the date of this Agreement, and the debtor and the creditor thereof.
Appears in 1 contract
Sources: Business Combination Agreement (Haymaker Acquisition Corp.)
Financial Statements; Undisclosed Liabilities. (a) The Company has made available delivered to HighCape a true Parent true, correct and complete copy of (i) the audited consolidated balance sheets copies of the Group Companies unaudited balance sheet, as of December 31April 30, 2019, and the related audited consolidated statements of operations and comprehensive loss, convertible preferred stock and stockholders’ deficit and cash flows 2005 of the Group Companies for each of the periods then ended, (ii) the unaudited consolidated balance sheets of the Group Companies as of December 31, 2020, and the related unaudited consolidated statements of operations and comprehensive loss, convertible preferred stock and stockholders’ deficit and cash flows of the Group Companies for the twelve (12)-month period then ended, and (iii) the unaudited consolidated balance sheets of the Group Companies as of December 31, 2019 and December 31, 2020 Company (the “Latest Balance Sheet”) and the related unaudited consolidated statements of operations and comprehensive lossincome, convertible preferred stock and stockholders’ deficit equity and cash flows of the Group Companies Company for each the three-month period ended April 30, 2005 (such statements of income, stockholders’ equity and cash flows and the periods then ended (clauses (i), (ii), and (iii) are collectively, Latest Balance Sheet being herein referred to as the “Latest Financial Statements”), each of which . The Latest Financial Statements are attached as Section 3.4(a) based upon the information contained in the books and records of the Company Disclosure Schedules. Each and fairly and accurately present the financial condition of the Company as of the dates thereof and results of operations for the periods referred to therein. The Latest Financial Statements (including the notes thereto) (A) was have been prepared in accordance with GAAP applied on a consistent the income tax basis throughout of accounting consistently applied.
(b) All accounts, books and ledgers related to the periods indicated (except as may be indicated in business of the notes thereto)Company are properly and accurately kept, (B) fairly presents, are complete in all material respects, the financial positionand there are no material inaccuracies or discrepancies of any kind contained or reflected therein. The Company does not have any of its records, results of operations and cash flows of the Group Companies as at the date thereof and for the period indicated thereinsystems, except as controls, data, or information recorded, stored, maintained, operated or otherwise specifically noted therein, and (C) in the case of the Financial Statements included in clause (iii) only, were prepared in accordance with the standards of the PCAOB, and comply in all material respects with the applicable accounting requirements and with the rules and regulations of the SEC, the Exchange Act and the Securities Act in effect as of the respective dates thereof wholly or partly dependent upon or held by any means (including Regulation S-X any electronic, mechanical or Regulation S-Kphotographic process, as applicable).
whether computerized or not) which (bincluding all means of access thereto and therefrom) The audited consolidated balance sheets of are not under the Group Companies as of December 31, 2019 exclusive ownership (excluding licensed software programs) and December 31, 2020, and the related audited consolidated statements of operations and comprehensive loss, convertible preferred stock and stockholders’ deficit and cash flows of the Group Companies for each of the periods then ended (the “Closing Company Audited Financial Statements”), when delivered following the date of this Agreement in accordance with Section 5.17, (i) will be prepared in accordance with GAAP applied on a consistent basis throughout the periods indicated (except as may be indicated in the notes thereto), (ii) will fairly present, in all material respects, the financial position, results of operations and cash flows of the Group Companies as at the date thereof and for the period indicated therein, except as otherwise specifically noted therein, (iii) will be audited in accordance with the standards of the PCAOB and will contain an unqualified report direct control of the Company’s auditors, and (iv) will comply in all material respects with the applicable accounting requirements and with the rules and regulations of the SEC, the Exchange Act and the Securities Act in effect as of the respective dates thereof (including Regulation S-X or Regulation S-K, as applicable).
(c) Except (i) as set forth on and to the face of extent reflected in the Latest Balance Sheet, the Company has no liabilities or obligations (iiwhether accrued, absolute, contingent, unliquidated or otherwise, whether due or to become due, whether known or unknown, and regardless of when asserted) for Liabilities incurred arising out of transactions or events heretofore entered into, or any action or inaction, or any state of facts existing, with respect to or based upon transactions or events heretofore occurring, except liabilities of not more than $150,000 in the aggregate that have arisen after the date of the Latest Balance Sheet in the ordinary course of business since the Latest Balance Sheet Date business, consistent with past custom and practice (none of which is a Liability liability for breach of contract, breach of warranty, violation of Applicable Law, tort, infringement infringement, claim or violation of Lawlawsuit), (iii) for Liabilities incurred in connection with the negotiation, preparation or execution of this Agreement or any Ancillary Documents, the performance of their respective covenants or agreements in this Agreement or any Ancillary Document or the consummation of the transactions contemplated hereby or thereby and (iv) for Liabilities that are not and would not reasonably be expected to be, individually or in the aggregate, material to the Group Companies, taken as a whole, no Group Company has any Liabilities of the type required to be set forth on a balance sheet in accordance with GAAP.
(d) The Group Companies have established and maintain systems of internal accounting controls that are designed to provide, in all material respects, reasonable assurance that (i) all transactions are executed in accordance with management’s authorization and (ii) all transactions are recorded as necessary to permit preparation of proper and accurate financial statements in accordance with GAAP and to maintain accountability for the Group Companies’ assets. The Group Companies maintain and, for all periods covered by the Financial Statements, have maintained books and records of the Group Companies in the ordinary course of business that are accurate and complete and reflect the revenues, expenses, assets and liabilities of the Group Companies in all material respects.
(e) Except as set forth in Section 3.4(e) of the Company Disclosure Schedule, since the incorporation of the Company, no Group Company has received any written complaint, allegation, assertion or claim that there is (i) “significant deficiency” in the internal controls over financial reporting of the Group Companies, (ii) a “material weakness” in the internal controls over financial reporting of the Group Companies or (iii) fraud, whether or not material, that involves management or other employees of the Group Companies who have a significant role in the internal controls over financial reporting of the Group Companies.
Appears in 1 contract
Sources: Merger Agreement (American Medical Systems Holdings Inc)
Financial Statements; Undisclosed Liabilities. (a) The Company has made available to HighCape PTIC II a true and complete copy of (i) the audited consolidated balance sheets of the Group Companies as of December 31, 2019, 2020 and the related audited consolidated statements of operations and comprehensive lossincome, convertible preferred stock and stockholders’ deficit member’s equity (deficit) and cash flows of for the Group Companies for each of year then-ended (the periods then ended“2020 Financial Statements”), (ii) the unaudited consolidated balance sheets of the Group Companies as of December 31, 2020, 2021 and the related unaudited consolidated statements of operations and comprehensive lossincome, convertible preferred stock and stockholders’ deficit member’s equity (deficit) and cash flows of the Group Companies for the twelve year then-ended (12)-month period then ended, the “2021 Financial Statements”) and (iii) the unaudited consolidated balance sheets of the Group Companies as of December March 31, 2019 and December 31, 2020 2022 (the “Latest Balance Sheet”) and the related unaudited consolidated statements of operations and comprehensive lossincome, convertible preferred stock and stockholders’ deficit member’s equity (deficit) and cash flows of the Group Companies for each of the periods period then ended (clauses (i), (ii)the “Q122 Financial Statements”, and (iii) are collectivelycollectively with the 2020 Financial Statements and the 2021 Financial Statements, the “Financial Statements”), each of which are attached as Section 3.4(a) of the Company Disclosure Schedules. Each of the .
(b) The Financial Statements (including the notes thereto) (Ai) was were prepared in accordance with GAAP applied on a consistent basis throughout the periods indicated (except except, in the case of any audited financial statements, as may be specifically indicated in the notes thereto and subject to, in the case of any unaudited financial statements, normal year-end audit adjustments (none of which would have, or would have reasonably expected to have, a Company Material Adverse Effect) and the absence of notes thereto), ) and (Bii) fairly presentspresent, in all material respects, the financial position, results of operations operations, shareholders’ equity and cash flows of the Group Companies as at of the date thereof and for the period indicated thereintherein (subject to, except as otherwise specifically noted therein, and (C) in the case of the any unaudited financial statements, normal year-end audit adjustments (none of which would have, or would be reasonably expected to have, a Company Material Adverse Effect)). The 2020 Financial Statements included and 2021 Financial Statements, when the PCAOB audits are complete and such financial statements are delivered following the date of this Agreement in clause accordance with Section 5.16 (iii) onlycollectively, were prepared the “Closing Company Audited Financial Statements”), will be audited in accordance with the standards of the PCAOBPCAOB and contain an unqualified report of the Company’s auditors (provided that such financial statements shall not be required to include a signed audit opinion as of the date of this Agreement, which signed audit opinion shall instead be delivered concurrently with the filing of the Registration Statement / Proxy Statement with the SEC) and will comply in all material respects with the applicable accounting requirements and with the rules and regulations of the SEC, the Exchange Act and the Securities Act in effect as of the respective dates thereof (including Regulation S-X or Regulation S-K, as applicable).
(b) The audited in effect as of the date of this Agreement, at the time of filing of the Registration Statement / Proxy Statement and at the time of effectiveness or finalization of the Registration Statement / Proxy Statement, as applicable. Each quarterly unaudited consolidated balance sheets sheet of the Group Companies as of December 31, 2019 and December 31, 2020, and the related audited unaudited consolidated statements of operations and comprehensive lossincome, convertible preferred stock and stockholders’ deficit member’s equity (deficit) and cash flows of the Group Companies for each of the periods then ended (the “Closing Company Audited Financial Statements”)quarterly period then-ended, when delivered following the date of this Agreement by the Company in accordance with Section 5.17, 5.16 (iA) will be prepared in accordance with GAAP applied on a consistent basis throughout the periods indicated (except as may for normal year-end audit adjustments (none of which would have, or would be indicated in reasonably expected to have, a Company Material Adverse Effect) and the absence of notes thereto), (iiB) will fairly present, in all material respects, the financial position, results of operations operations, convertible preferred stock and stockholders’ deficit and cash flows of the Group Companies as at of the date thereof and for the period indicated thereintherein (subject to, except as otherwise specifically noted thereinin the case of any unaudited financial statements, normal year-end audit adjustments (iiinone of which would have, or would reasonably be expected to have, a Company Material Adverse Effect)) will be audited in accordance with the standards of the PCAOB and will contain an unqualified report of the Company’s auditors, and (ivC) will comply in all material respects with the applicable accounting requirements and with the rules and regulations of the SEC, the Exchange Act and the Securities Act in effect as of the respective dates thereof (including Regulation S-X or Regulation S-K, as applicable)) in effect as of their respective dates of delivery, at the time of filing of the Registration Statement / Proxy Statement (if delivered prior to such filing) and at the time of effectiveness or finalization of the Registration Statement / Proxy Statement, as applicable.
(c) Except (i) as set forth on the face of in the Latest Balance SheetSheet (including the notes thereto), (ii) for Liabilities incurred in the ordinary course of business since the date of the Latest Balance Sheet Date (none of which is a Liability for breach of contract, breach of warranty, tort, infringement or violation of Law), (iii) for Liabilities incurred in connection with the negotiation, preparation or execution of this Agreement or any Ancillary Documents, the performance of their respective covenants or agreements in this Agreement or any Ancillary Document or the consummation of the transactions contemplated hereby or thereby and (iv) for Liabilities that are not and would not have, or would be reasonably be expected to behave, individually or in the aggregate, material to the Group Companies, taken as a wholeCompany Material Adverse Effect, no Group Company has any Liabilities of the a type required to be set forth on a balance sheet prepared in accordance with GAAP. Except for Liabilities reflected in the Financial Statements, none of the Group Companies have any “off-balance sheet arrangement” within the meaning of Item 303 of Regulation S-K of the Securities Act or, or any off-balance sheet Liability of any nature to, or any financial interest in, any third party or entities.
(d) The Each Group Companies have established and maintain Company is in the process of establishing systems of internal accounting controls that are designed to provide, in all material respects, reasonable assurance that (i) all transactions are executed in accordance with management’s authorization and (ii) all transactions are recorded as necessary to permit preparation of proper and accurate financial statements in accordance with GAAP applicable accounting standards and to maintain accountability for the Group Companies’ assets. The Group Companies maintain and, in respect of the Group Companies, for all periods covered by the Financial Statements, have maintained books and records of the Group Companies in the ordinary course of business that are accurate and complete and reflect the revenues, expenses, assets and liabilities of the Group Companies in all material respects.
(e) Except as set forth in Section 3.4(e) of the Company Disclosure Schedule, since the incorporation formation of each of the Group Companies, there have been no formal internal investigations regarding financial reporting or accounting policies and practices discussed with, reviewed by or initiated at the direction of the chief executive officer, chief financial officer or general counsel of any Group Company, no the board of managers of any Group Company has received or any written complaintcommittee thereof. Except as set forth in Section 3.4(e) of the Company Disclosure Schedule, allegationsince the formation of each of the Group Companies, assertion or claim that there is neither any Group Company nor the Company’s independent auditors have identified (i) “significant deficiency” in the internal controls over financial reporting of the Group Companies, (ii) a “material weakness” in the internal controls over financial reporting of the Group Companies or (iii) fraud, whether or not material, that involves management or other employees of the Group Companies who have a significant role in the internal controls over financial reporting of the Group Companies.
Appears in 1 contract
Sources: Business Combination Agreement (Proptech Investment Corp. Ii)
Financial Statements; Undisclosed Liabilities. (a) The Company has made available or otherwise provided to HighCape IIAC a true and complete copy of (i) the audited consolidated balance sheets statements of financial position of the Group Companies (consolidated) as of December 31, 20192018, and the related audited consolidated statements of operations and comprehensive loss, convertible preferred stock and stockholders’ deficit and cash flows of the Group Companies for each of the periods then ended, (ii) the unaudited consolidated balance sheets of the Group Companies as of December 31, 2020, and the related unaudited consolidated statements of operations and comprehensive loss, convertible preferred stock and stockholders’ deficit and cash flows of the Group Companies for the twelve (12)-month period then ended, and (iii) the unaudited consolidated balance sheets of the Group Companies as of December 31, 2019 and December 31, 2020 (the “Latest Balance Sheet”) and (ii) the related unaudited audited consolidated statements of operations and comprehensive loss, convertible preferred stock and stockholders’ deficit profit and cash flows of the Group Companies (consolidated) for each of the twelve (12) month periods then ended (clauses (i), (ii), and (iii) are collectively, the “Financial Statements”), each of which are attached as Section 3.4(a) of the Company Disclosure SchedulesSchedule and contain an unqualified report of the Company’s auditors. Each of the Financial Statements (including the notes thereto) (A) was prepared in accordance with GAAP IFRS and with applicable Law applied on a consistent basis throughout the periods indicated (except as may be indicated in the notes thereto), and (B) fairly presents, in all material respects, present the financial position, results of operations and cash flows of the Group Companies (consolidated) as at the date thereof and for the period indicated therein, except as otherwise specifically noted therein, and (C) in the case of the Financial Statements included in clause (iii) only, were prepared in accordance with the standards of the PCAOB, and comply in all material respects with the applicable accounting requirements and with the rules and regulations of the SEC, the Exchange Act and the Securities Act in effect as of the respective dates thereof (including Regulation S-X or Regulation S-K, as applicable).
(b) The audited consolidated balance sheets of the Group Companies as of December 31, 2019 and December 31, 2020, and the related audited consolidated statements of operations and comprehensive loss, convertible preferred stock and stockholders’ deficit and cash flows of the Group Companies for each of the periods then ended (the “Closing Company Audited Financial Statements”), when delivered following the date of this Agreement in accordance with Section 5.17, (i) will be prepared in accordance with GAAP applied on a consistent basis throughout the periods indicated (except as may be indicated in the notes thereto), (ii) will fairly present, in all material respects, the financial position, results of operations and cash flows of the Group Companies as at the date thereof and for the period indicated therein, except as otherwise specifically noted therein, (iii) will be audited in accordance with the standards of the PCAOB and will contain an unqualified report of the Company’s auditors, and (iv) will comply in all material respects with the applicable accounting requirements and with the rules and regulations of the SEC, the Exchange Act and the Securities Act in effect as of the respective dates thereof (including Regulation S-X or Regulation S-K, as applicable).
(c) Except (i) as set forth on reflected or reserved against in the face of Financial Statements or disclosed in the Latest Balance Sheetnotes thereto, (ii) for Liabilities incurred in the ordinary course of business since the date of the Latest Balance Sheet Date (none of which is a Liability for breach of contract, breach of warranty, tort, infringement or violation of Law)Sheet, (iii) for Liabilities incurred in connection with the negotiation, preparation or execution of this Agreement or any Ancillary Documents, the performance of their respective covenants or agreements in this Agreement or any Ancillary Document to which it is or will be a party or the consummation of the transactions contemplated hereby or thereby (including, for the avoidance of doubt, the Company Expenses) or otherwise related to the Transactions, (iv) for executory obligations under Contracts and (ivv) for Liabilities that are not and would not reasonably be expected to be, individually or in the aggregate, material to the Group Companies, taken as a whole, no Group Company has any Liabilities of the type required to be set forth on a balance sheet in accordance with GAAPLiabilities.
(dc) The Group Companies have established and maintain systems of internal accounting controls that are designed to provide, in all material respects, provide reasonable assurance that (i) all transactions are executed assurances regarding the reliability of the financial reporting and the preparation of the Financial Statements in accordance with management’s authorization IFRS and (ii) all transactions are recorded other Laws as necessary applicable to permit preparation of proper and accurate financial statements in accordance with GAAP and to maintain accountability for the Group Companies’ assets. The Group Companies maintain and, for all periods covered by the Financial Statements, have maintained books and records of the Group Companies in the ordinary course of business that are accurate and complete and reflect the revenuescompliance, expenses, assets and liabilities of the Group Companies in all material respects, with applicable Laws that accurately reflect, in all material respects, all transactions required to be recorded therein in accordance with such Laws.
(ed) Except as set forth in Section 3.4(e) of the Company Disclosure ScheduleSince January 1, since the incorporation of 2018, to the Company’s knowledge, no Group Company has received any written complaint, allegation, assertion or claim that there is (iA) “significant deficiency” a deficiency in the internal controls over financial reporting of the Group Companies, (ii’ internal accounting controls that were described in Section 3.4(c) a “material weakness” in the internal controls over financial reporting of the Group Companies or (iiiB) fraud, whether or not material, that involves management or other employees of the Group Companies who have a significant role in the internal accounting controls over financial reporting of the Group Companies.
Appears in 1 contract
Sources: Business Combination Agreement (Investindustrial Acquisition Corp.)
Financial Statements; Undisclosed Liabilities. (a) The To the best of the Company’s knowledge and belief, the Company has made available previously delivered to HighCape a true the Investors complete and complete copy accurate copies of (i) the audited consolidated balance sheets sheet of the Group Companies Company as of December 31, 2019, and the related audited consolidated statements of operations and comprehensive loss, convertible preferred stock and stockholders’ deficit and cash flows of the Group Companies for each of the periods then ended, (ii) the unaudited consolidated balance sheets of the Group Companies as of December 31, 2020, and the related unaudited consolidated statements of operations and comprehensive loss, convertible preferred stock and stockholders’ deficit and cash flows of the Group Companies for the twelve (12)-month period then ended, and (iii) the unaudited consolidated balance sheets of the Group Companies as of December 31, 2019 and December 31, 2020 2009 (the “Latest Balance Sheet”) and the related unaudited consolidated statements of operations and comprehensive loss, convertible preferred stock and stockholders’ deficit and cash flows income of the Group Companies for each Company quarter ended September 30, 2010 (such statements of income and the periods then ended (clauses (i), (ii), and (iii) are collectively, Latest Balance Sheet being herein referred to as the “Latest Financial Statements”), each of which . The Latest Financial Statements are attached as Section 3.4(a) based upon the information contained in the books and records of the Company Disclosure Schedules. Each and fairly and accurately present the financial condition of the Company as of the dates thereof and results of operations for the periods referred to therein. The Latest Financial Statements (including the notes thereto) (A) was have been prepared in accordance with GAAP applied on a consistent basis throughout the periods indicated (except as defined herein) applicable to unaudited interim financial statements (and thus may be indicated in the not contain all notes theretoand may not contain prior period comparative data which are required for compliance with GAAP), and reflect all adjustments necessary to a fair and accurate statement of the financial condition and results of operations of the Company for the interim periods presented.
(Bb) fairly presentsTo the best of the Company’s knowledge and belief, all accounts, books and ledgers related to the business of the Company and its subsidiaries are properly and accurately kept, are complete in all material respects, and there are no material inaccuracies or discrepancies of any kind contained or reflected therein. Neither the financial positionCompany nor its subsidiaries have any of its material records, results systems, controls, data, or information recorded, stored, maintained, operated or otherwise wholly or partly dependent upon or held by any means (including any electronic, mechanical or photographic process, whether computerized or not) which (including all means of operations access thereto and cash flows therefrom) are not under the exclusive ownership (excluding licensed software programs) and direct control of the Group Companies as at the date thereof and for the period indicated therein, except as otherwise specifically noted therein, and (C) in the case of the Financial Statements included in clause (iii) only, were prepared in accordance with the standards of the PCAOB, and comply in all material respects with the applicable accounting requirements and with the rules and regulations of the SEC, the Exchange Act and the Securities Act in effect as of the respective dates thereof (including Regulation S-X Company or Regulation S-K, as applicable).its subsidiaries. DHL DRA
(bc) The audited consolidated balance sheets of To the Group Companies as of December 31, 2019 and December 31, 2020, and the related audited consolidated statements of operations and comprehensive loss, convertible preferred stock and stockholders’ deficit and cash flows of the Group Companies for each of the periods then ended (the “Closing Company Audited Financial Statements”), when delivered following the date of this Agreement in accordance with Section 5.17, (i) will be prepared in accordance with GAAP applied on a consistent basis throughout the periods indicated (except as may be indicated in the notes thereto), (ii) will fairly present, in all material respects, the financial position, results of operations and cash flows of the Group Companies as at the date thereof and for the period indicated therein, except as otherwise specifically noted therein, (iii) will be audited in accordance with the standards of the PCAOB and will contain an unqualified report best of the Company’s auditorsknowledge and belief, except as and (iv) will comply to the extent reflected in all material respects with the applicable accounting requirements and with the rules and regulations of the SEC, the Exchange Act and the Securities Act in effect as of the respective dates thereof (including Regulation S-X or Regulation S-K, as applicable).
(c) Except (i) as set forth on the face of the Latest Balance Sheet, or any balance sheet subsequetly filed with the SEC, the Company does not have any Liabilities (iias defined herein) for of any nature, other than Liabilities incurred in the ordinary course Ordinary Course of business Business (as defined herein) since the date of the Latest Balance Sheet Date (none of which is a Liability for breach of contract, breach of warranty, tort, infringement or violation of Law), (iii) for and Liabilities incurred arising in connection with the negotiation, preparation or execution of this Agreement or any Ancillary Documents, the performance of their respective covenants or agreements in this Agreement or any Ancillary Document or the consummation of and the transactions contemplated hereby or thereby and (iv) for Liabilities that are not and would not reasonably be expected to be, individually or in the aggregate, material to the Group Companies, taken as a whole, no Group Company has any Liabilities of the type required to be set forth on a balance sheet in accordance with GAAPherein.
(d) The Group Companies have established and maintain systems of internal accounting controls that are designed to provide, in all material respects, reasonable assurance that (i) all transactions are executed in accordance with management’s authorization and (ii) all transactions are recorded as necessary to permit preparation of proper and accurate financial statements in accordance with GAAP and to maintain accountability for the Group Companies’ assets. The Group Companies maintain and, for all periods covered by the Financial Statements, have maintained books and records of the Group Companies in the ordinary course of business that are accurate and complete and reflect the revenues, expenses, assets and liabilities of the Group Companies in all material respects.
(e) Except as set forth in Section 3.4(e) of the Company Disclosure Schedule, since the incorporation of the Company, no Group Company has received any written complaint, allegation, assertion or claim that there is (i) “significant deficiency” in the internal controls over financial reporting of the Group Companies, (ii) a “material weakness” in the internal controls over financial reporting of the Group Companies or (iii) fraud, whether or not material, that involves management or other employees of the Group Companies who have a significant role in the internal controls over financial reporting of the Group Companies.
Appears in 1 contract
Sources: Series D Convertible Preferred Stock Purchase Agreement (Egpi Firecreek, Inc.)
Financial Statements; Undisclosed Liabilities. (a) The Company has made available to HighCape a true Attached hereto as Schedule 3.7(a) are true, correct and complete copy of (i) the audited consolidated balance sheets of the Group Companies as of December 31, 2019, and the related audited consolidated statements of operations and comprehensive loss, convertible preferred stock and stockholders’ deficit and cash flows of the Group Companies for each of the periods then ended, (ii) the unaudited consolidated balance sheets of the Group Companies as of December 31, 2020, and the related unaudited consolidated statements of operations and comprehensive loss, convertible preferred stock and stockholders’ deficit and cash flows of the Group Companies for the twelve (12)-month period then ended, and (iii) the unaudited consolidated balance sheets of the Group Companies as of December 31, 2019 and December 31, 2020 (the “Latest Balance Sheet”) and the related unaudited consolidated statements of operations and comprehensive loss, convertible preferred stock and stockholders’ deficit and cash flows of the Group Companies for each of the periods then ended (clauses (i), (ii), and (iii) are collectively, the “Financial Statements”), each of which are attached as Section 3.4(a) of the Company Disclosure Schedules. Each copies of the Financial Statements. Except as described therein or in Schedule 3.7(a), the Financial Statements (including the notes thereto) (A) was have been prepared in accordance with GAAP (except that the unaudited financial statements do not reflect year-end adjustments and are not accompanied by footnotes), consistently applied on a consistent basis throughout during the periods indicated (except as may be indicated in the notes thereto)involved, (B) and present fairly presents, in all material respects, respects the financial position, position and results of operations and cash flows of the Group Companies Acquired Company as at of the date dates thereof and for the period indicated therein, except as otherwise specifically noted therein, and (C) in the case of the Financial Statements included in clause (iii) only, were prepared in accordance with the standards of the PCAOB, and comply in all material respects with the applicable accounting requirements and with the rules and regulations of the SEC, the Exchange Act and the Securities Act in effect as of the respective dates thereof (including Regulation S-X or Regulation S-K, as applicable)periods indicated.
(b) The audited consolidated balance sheets of the Group Companies Except as of December 31, 2019 and December 31, 2020, and the related audited consolidated statements of operations and comprehensive loss, convertible preferred stock and stockholders’ deficit and cash flows of the Group Companies for each of the periods then ended (the “Closing Company Audited Financial Statements”set forth in Schedule 3.7(b), or for liabilities less than $50,000 individually or $250,000 in the aggregate, the Acquired Company has no liabilities (whether accrued, absolute, contingent, unliquidated or otherwise, whether due or to become due, whether known or unknown, regardless of when delivered following the date of this Agreement in accordance with Section 5.17asserted), other than (i) will be prepared in accordance with GAAP applied on a consistent basis throughout the periods indicated (except as may be indicated disclosed, reflected or reserved against in the notes thereto), Financial Statements and (ii) will fairly present, liabilities incurred in all material respects, the financial position, results Ordinary Course of operations Business since the Financial Statement Date and cash flows not otherwise in violation of the Group Companies as at the date thereof and for the period indicated therein, except as otherwise specifically noted therein, (iii) will be audited in accordance with the standards of the PCAOB and will contain an unqualified report of the Company’s auditors, and (iv) will comply in all material respects with the applicable accounting requirements and with the rules and regulations of the SEC, the Exchange Act and the Securities Act in effect as of the respective dates thereof (including Regulation S-X or Regulation S-K, as applicable)this Agreement.
(c) Except The Acquired Company maintains a system of internal control over financial reporting sufficient to provide reasonable assurance regarding the reliability of the Acquired Company’s financial reporting and the preparation of financial statements for external purposes in accordance with GAAP and to provide reasonable assurance that: (i) as set forth on records are maintained in reasonable detail that accurately and fairly reflect the face transactions and dispositions of the Latest Balance Sheet, assets of the Acquired Company; (ii) for Liabilities incurred in the ordinary course of business since the Latest Balance Sheet Date (none of which is a Liability for breach of contract, breach of warranty, tort, infringement or violation of Law), (iii) for Liabilities incurred in connection with the negotiation, preparation or execution of this Agreement or any Ancillary Documents, the performance of their respective covenants or agreements in this Agreement or any Ancillary Document or the consummation of the transactions contemplated hereby or thereby and (iv) for Liabilities that are not and would not reasonably be expected to be, individually or in the aggregate, material to the Group Companies, taken as a whole, no Group Company has any Liabilities of the type required to be set forth on a balance sheet in accordance with GAAP.
(d) The Group Companies have established and maintain systems of internal accounting controls that are designed to provide, in all material respects, reasonable assurance that (i) all transactions are executed in accordance with management’s authorization and (ii) all transactions are recorded as necessary to permit preparation of proper and accurate financial statements in accordance with GAAP GAAP, and to maintain accountability for the Group Companies’ assets. The Group Companies maintain and, for all periods covered by the Financial Statements, have maintained books that receipts and records expenditures of the Group Companies Acquired Company are being made only in accordance with authorizations of management and the ordinary course board of business that are accurate and complete and reflect the revenues, expenses, assets and liabilities of the Group Companies in all material respects.
directors (e) Except as set forth in Section 3.4(eor equivalent entity) of the Company Disclosure ScheduleAcquired Company; and (iii) unauthorized acquisition, since the incorporation use or disposition of the Acquired Company, ’s assets that could have a material effect on the Acquired Company’s financial statements are timely detected and/or prevented. There have been no Group Company has received any written complaint, allegation, assertion or claim that there is (i) “significant deficiency” changes in the such system of internal controls control over financial reporting during the preceding ninety (90) days that have materially affected, or are reasonably likely to materially affect, such system of the Group Companies, (ii) a “internal control over financial reporting. There are no significant deficiencies or material weakness” weaknesses in the design or operation of such system of internal controls control over financial reporting that are reasonably likely to adversely affect the Acquired Company’s ability to record, process, summarize and report financial information. There have been no instances of the Group Companies or (iii) fraud, whether or not material, that involves involve the Acquired Company’s management or other employees of the Group Companies who have a significant role in the Acquired Company’s system of internal controls control over financial reporting of the Group Companiesreporting.
Appears in 1 contract
Sources: Merger Agreement (Flowers Foods Inc)
Financial Statements; Undisclosed Liabilities. (a1) The Company has made available previously delivered to HighCape a true and complete copy of the Investors (i) the audited consolidated combined balance sheets of the Group Companies as of Company and its consolidated subsidiaries for each year in the three-year period ended December 31, 20191998 (the audited balance sheet for the year ended December 31, 1998 being hereinafter referred to as the "1998 Balance Sheet") and the related audited consolidated combined statements of operations revenues, expenses and comprehensive loss, convertible preferred stock retained earnings and stockholders’ deficit and audited combined statements of cash flows of the Group Companies Company and its consolidated subsidiaries for each of such year (collectively, the periods then ended, "Financial Statements") and (ii) the unaudited consolidated combined balance sheets of the Group Companies Company and its consolidated subsidiaries as of December 31March 30, 2020, 1999 and the related unaudited consolidated combined statements of operations revenues, expenses and comprehensive loss, convertible preferred stock retained earnings and stockholders’ deficit and unaudited combined statements of cash flows of the Group Companies Company and its consolidated subsidiaries for the twelve three-month period ended March 30, 1999 (12)-month period then ended, and (iii) the unaudited consolidated balance sheets of the Group Companies as of December 31, 2019 and December 31, 2020 (the “Latest Balance Sheet”) and the related unaudited consolidated statements of operations and comprehensive loss, convertible preferred stock and stockholders’ deficit and cash flows of the Group Companies for each of the periods then ended (clauses (i), (ii), and (iii) are collectively, the “"Unaudited Financial Statements”"), each of which are attached as Section 3.4(a) of the Company Disclosure Schedules. Each of the Financial Statements and the Unaudited Financial Statements (including the any related notes thereto) (A) was has been prepared in accordance with GAAP applied on a consistent basis throughout the periods indicated (except as may be indicated in the notes thereto), (B) involved and fairly presents, in all material respects, the financial position, results of operations and cash flows of the Group Companies as at the date thereof and for the period indicated therein, except as otherwise specifically noted therein, and (C) in the case of the Financial Statements included in clause (iii) only, were prepared in accordance with the standards of the PCAOB, and comply in all material respects with the applicable accounting requirements and with the rules and regulations of the SEC, the Exchange Act Company and the Securities Act in effect Company Subsidiaries as of the respective dates thereof (including Regulation S-X or Regulation S-K, as applicable)and for the periods indicated therein.
(b2) The audited consolidated balance sheets of Neither the Group Companies as of December 31Company nor any Company Subsidiary has incurred any material liability or obligation (whether direct or indirect, 2019 and December 31fixed, 2020, and the related audited consolidated statements of operations and comprehensive loss, convertible preferred stock and stockholders’ deficit and cash flows of the Group Companies for each of the periods then ended (the “Closing Company Audited Financial Statements”), when delivered following the date of this Agreement in accordance with Section 5.17, contingent or otherwise) other than (i) will be prepared in accordance with GAAP applied on a consistent basis throughout the periods indicated (except such as may be indicated in the notes thereto), (ii) will fairly present, in all material respects, the financial position, results of operations and cash flows of the Group Companies as at the date thereof and for the period indicated therein, except as otherwise specifically noted therein, (iii) will be audited in accordance with the standards of the PCAOB and will contain an unqualified report of the Company’s auditors, and (iv) will comply in all material respects with the applicable accounting requirements and with the rules and regulations of the SEC, the Exchange Act and the Securities Act in effect as of the respective dates thereof (including Regulation S-X or Regulation S-K, as applicable).
(c) Except (i) as set forth have been reflected on the face of the Latest 1998 Balance Sheet, (ii) for Liabilities such as have been incurred in the ordinary course of business consistent with past practice since the Latest date of the 1998 Balance Sheet Date (none of which is a Liability for breach of contract, breach of warranty, tort, infringement or violation of Law), (iii) for Liabilities incurred in connection with the negotiation, preparation or execution of this Agreement or any Ancillary Documents, the performance of their respective covenants or agreements in this Agreement or any Ancillary Document or the consummation of the transactions contemplated hereby or thereby and (iv) for Liabilities that are not and would not reasonably be expected to be, individually or in the aggregate, material to the Group Companies, taken such as a whole, no Group Company has any Liabilities of the type required to be set forth on a balance sheet in accordance with GAAP.
(d) The Group Companies have established and maintain systems of internal accounting controls that are designed to provide, in all material respects, reasonable assurance that (i) all transactions are executed in accordance with management’s authorization and (ii) all transactions are recorded as necessary to permit preparation of proper and accurate financial statements in accordance with GAAP and to maintain accountability for the Group Companies’ assets. The Group Companies maintain and, for all periods covered by the Financial Statements, have maintained books and records of the Group Companies in the ordinary course of business that are accurate and complete and reflect the revenues, expenses, assets and liabilities of the Group Companies in all material respects.
(e) Except as been set forth in Section 3.4(e4.7(b) of the Company Disclosure Schedule, since the incorporation of the Company, no Group Company has received any written complaint, allegation, assertion or claim that there is (i) “significant deficiency” in the internal controls over financial reporting of the Group Companies, (ii) a “material weakness” in the internal controls over financial reporting of the Group Companies or (iii) fraud, whether or not material, that involves management or other employees of the Group Companies who have a significant role in the internal controls over financial reporting of the Group CompaniesDISCLOSURE SCHEDULE.
Appears in 1 contract
Financial Statements; Undisclosed Liabilities. (a) The Company Seller has made available furnished to HighCape a true and complete copy of (i) Parent the audited balance sheet, together with related consolidated balance sheets statements of income and cash flows, for the Group Companies as of and for the years ended December 31, 2019, 2006 and the related audited consolidated statements of operations and comprehensive loss, convertible preferred stock and stockholders’ deficit and cash flows of the Group Companies for each of the periods then ended, (ii) the unaudited consolidated balance sheets of the Group Companies as of December 31, 2020, and the related unaudited consolidated statements of operations and comprehensive loss, convertible preferred stock and stockholders’ deficit and cash flows of the Group Companies for the twelve (12)-month period then ended, and (iii) the unaudited consolidated balance sheets of the Group Companies as of December 31, 2019 and December 31, 2020 2005 (the “Latest Balance SheetCompanies’ Annual Financial Statements”) and the unaudited balance sheet, together with related unaudited consolidated statements of operations and comprehensive loss, convertible preferred stock and stockholders’ deficit income and cash flows flows, for the Companies as of and for the Group Companies for each of three-month period ended March 31, 2007 (the periods then ended (clauses (i)“Companies’ Interim Financial Statements” and, (ii), and (iii) are collectivelytogether with the Companies’ Annual Financial Statements, the “Companies’ Financial Statements”), each of which are attached as Section 3.4(a) of the Company Disclosure Schedules. Each of the The Companies’ Financial Statements (including the notes thereto) (A) was prepared in accordance with GAAP applied on a consistent basis throughout the periods indicated (except as may be indicated in the notes thereto), (B) fairly presents, present in all material respects, respects the financial position, results of operations and cash flows of the Group Companies as at the date thereof and for the period indicated therein, except as otherwise specifically noted therein, and (C) in the case of the Financial Statements included in clause (iii) only, were prepared in accordance with the standards of the PCAOB, and comply in all material respects with the applicable accounting requirements and with the rules and regulations of the SEC, the Exchange Act and the Securities Act in effect as of the respective dates thereof and for the periods stated. The Companies’ Financial Statements have been prepared in all material respects in accordance with GAAP consistently applied during the periods involved, except as otherwise noted therein or in the notes thereto (including Regulation Sexcept that the Companies’ Interim Financial Statements do not contain footnotes and are subject to normal recurring year-X or Regulation S-K, as applicableend adjustments). The Companies’ Financial Statements have been prepared in accordance with the books and records of the Companies consistent with past practice.
(b) The audited consolidated balance sheets of the Group Companies as of December 31, 2019 and December 31, 2020, and the related audited consolidated statements of operations and comprehensive loss, convertible preferred stock and stockholders’ deficit and cash flows of the Group Companies for each of the periods then ended (the “Closing Company Audited Financial Statements”), when delivered following the date of this Agreement in accordance with Section 5.17, (i) will be prepared in accordance with GAAP applied on a consistent basis throughout the periods indicated (except as may be indicated in the notes thereto), (ii) will fairly present, in all material respects, the financial position, results of operations and cash flows of the Group Companies as at the date thereof and for the period indicated therein, except as otherwise specifically noted therein, (iii) will be audited in accordance with the standards of the PCAOB and will contain an unqualified report of the Company’s auditors, and (iv) will comply in all material respects with the applicable accounting requirements and with the rules and regulations of the SEC, the Exchange Act and the Securities Act in effect as of the respective dates thereof (including Regulation S-X or Regulation S-K, as applicable).
(c) Except (i) as set forth on reflected or adequately reserved against in the face of the Latest Balance SheetCompanies’ Financial Statements, (ii) for Liabilities liabilities which have been incurred since March 31, 2007 in the ordinary course of business since the Latest Balance Sheet Date (none of which is a Liability for breach of contract, breach of warranty, tort, infringement or violation of Law), consistent with past practice and (iii) for Liabilities incurred as set forth in connection with the negotiationSchedule 4.8(b), preparation there are no liabilities or execution of this Agreement obligations, secured or any Ancillary Documentsunsecured (whether absolute, the performance of their respective covenants accrued, contingent or agreements in this Agreement otherwise), matured or any Ancillary Document or the consummation of the transactions contemplated hereby or thereby and (iv) for Liabilities unmatured that are not and would not reasonably be expected to be, individually or in the aggregate, material to the Group Companies, taken as a whole, no Group Company has any Liabilities of the type required to be set forth on a balance sheet in accordance with GAAP.
(d) The Group Companies have established and maintain systems of internal accounting controls that are designed to provide, in all material respects, reasonable assurance that (i) all transactions are executed in accordance with management’s authorization and (ii) all transactions are recorded as necessary to permit preparation of proper and accurate financial statements in accordance with GAAP and to maintain accountability for the Group Companies’ assets. The Group Companies maintain and, for all periods covered by the Financial Statements, have maintained books and records of the Group Companies in the ordinary course of business that are accurate and complete and reflect the revenues, expenses, assets and liabilities of the Group Companies in all material respects.
(e) Except as set forth in Section 3.4(e) of the Company Disclosure Schedule, since the incorporation of the Company, no Group Company has received any written complaint, allegation, assertion or claim that there is (i) “significant deficiency” in the internal controls over financial reporting of the Group Companies, (ii) a “material weakness” in the internal controls over financial reporting of the Group Companies or (iii) fraud, whether or not material, that involves management or other employees of the Group Companies who have a significant role in the internal controls over financial reporting of the Group CompaniesMaterial Adverse Effect.
Appears in 1 contract
Sources: Securities Purchase Agreement (North American Insurance Leaders, Inc.)
Financial Statements; Undisclosed Liabilities. (a) The Company has made available to HighCape a true and complete copy of Attached hereto as Schedule 2.6(a)(i) are (i) the audited consolidated internally prepared, unaudited balance sheets of the Group Companies Seller as of December 31, 2019, 2005 and 2006 and the related audited consolidated internally prepared, unaudited statements of operations and comprehensive loss, convertible preferred stock and stockholders’ deficit income and cash flows of the Group Companies flow for each of the periods years then endedended , and (ii) the internally prepared, unaudited consolidated balance sheets sheet of Seller as of March 31, 2007 and the Group Companies internally prepared, unaudited statements of income and cash flow for the three-month period then ended. All of such financial statements have been prepared in accordance with generally accepted accounting principles (“GAAP”) applied consistently with Seller’s past practices, are complete and correct in all material respects and present fairly in all material respects the financial condition of Seller at the dates of such statements and the results of operations for the periods covered thereby; provided, however, that the Seller’s unaudited financial statements as of December 31, 20202006 will not be in compliance with GAAP until the adjusting journal entries set forth in the ▇▇▇▇▇▇▇ Group, P.C.’s draft combined audited financials statements for Seller and the related Hof Service Company, Inc for the period ending December 31, 2006, a copy of which have been delivered to Buyer, have been made. The internally prepared, unaudited consolidated balance sheet of Seller as of March 31, 2007 is referred to herein as the “Base Balance Sheet.” Seller shall deliver to Buyer by no later than September 30, 2007 the following: (x) the internally prepared, unaudited balance sheet of Seller as of June 30, 2007 and the internally prepared, unaudited statements of operations and comprehensive loss, convertible preferred stock and stockholders’ deficit income and cash flows of the Group Companies flow for the twelve (12)-month six-month period then ended, and (iiiy) the unaudited consolidated balance sheets combined audited financial statement of Seller and the Group Companies Hof Service Company, Inc. as of December 31, 2019 and December 312006. The financial statements to be delivered to Buyer on September 30, 2020 (the “Latest Balance Sheet”) and the related unaudited consolidated statements of operations and comprehensive loss, convertible preferred stock and stockholders’ deficit and cash flows of the Group Companies for each of the periods then ended (clauses (i), (ii), and (iii) are collectively, the “Financial Statements”), each of which are attached as Section 3.4(a) of the Company Disclosure Schedules. Each of the Financial Statements (including the notes thereto) (A) was prepared in accordance with GAAP applied on a consistent basis throughout the periods indicated (except as may be indicated in the notes thereto), (B) fairly presents, in all material respects, the financial position, results of operations and cash flows of the Group Companies as at the date thereof and for the period indicated therein, except as otherwise specifically noted therein, and (C) in the case of the Financial Statements included in clause (iii) only, were prepared in accordance with the standards of the PCAOB, and comply in all material respects with the applicable accounting requirements and with the rules and regulations of the SEC, the Exchange Act and the Securities Act in effect as of the respective dates thereof (including Regulation S-X or Regulation S-K, as applicable).
(b) The audited consolidated balance sheets of the Group Companies as of December 31, 2019 and December 31, 2020, and the related audited consolidated statements of operations and comprehensive loss, convertible preferred stock and stockholders’ deficit and cash flows of the Group Companies for each of the periods then ended (the “Closing Company Audited Financial Statements”), when delivered following the date of this Agreement in accordance with Section 5.17, (i) will 2007 shall be prepared in accordance with GAAP applied consistently with Seller’s past practices, complete and correct in all material respects and present fairly in all material respects the financial condition of Seller at the dates of such statements and the results of operations for the periods covered thereby.
(b) As of the date hereof, except as set forth in Schedule 2.6(b), Seller does not and will not have any liabilities of any nature, whether accrued, absolute, contingent or otherwise, asserted or unasserted, known or unknown (including without limitation liabilities as guarantor or otherwise with respect to obligations of others, or contingent or potential liabilities relating to activities of Seller prior to the date hereof, regardless of whether claims in respect thereof have been asserted), whether or not of a type required to be shown on a consistent basis throughout balance sheet prepared in accordance with GAAP, except (i) liabilities stated or adequately reserved against on the periods indicated Base Balance Sheet (except as may be indicated in only to the notes theretoextent of the amount so stated or reserved), (ii) will fairly present, liabilities disclosed in all material respects, the financial position, results of operations and cash flows Schedules furnished to Buyer hereunder as of the Group Companies as at date hereof (only to the date thereof and for extent of the period indicated therein, except as otherwise specifically noted thereinamount so disclosed), (iii) will be audited prorations of expenses made between Seller and Buyer with respect to Laundry Leases made in accordance with the standards terms of the PCAOB and will contain an unqualified report of the Company’s auditorsthis Agreement, and (iv) will comply in all material respects with the applicable accounting requirements and with the rules and regulations of the SEC, the Exchange Act and the Securities Act in effect as of the respective dates thereof (including Regulation S-X or Regulation S-K, as applicable).
(c) Except (i) as set forth on the face of the Latest Balance Sheet, (ii) for Liabilities liabilities incurred in the ordinary course of the Seller’s business since the Latest Balance Sheet Date (none of which is a Liability for breach of contract, breach of warranty, tort, infringement or violation of Law), (iii) for Liabilities incurred in connection with the negotiation, preparation or execution of this Agreement or any Ancillary Documents, the performance of their respective covenants or agreements in this Agreement or any Ancillary Document or the consummation date of the transactions contemplated hereby Base Balance Sheet. Seller has no unsatisfied commitments or thereby and (iv) obligations for Liabilities that are not and would not reasonably be expected to beprepaid commissions, individually prepaid rent, guaranteed commissions, laundry facility renovations or in the aggregate, material to the Group Companies, taken as a whole, no Group Company has similar payments or obligations under any Liabilities of the type required to be set forth on a balance sheet in accordance with GAAPLaundry Lease or otherwise.
(d) The Group Companies have established and maintain systems of internal accounting controls that are designed to provide, in all material respects, reasonable assurance that (i) all transactions are executed in accordance with management’s authorization and (ii) all transactions are recorded as necessary to permit preparation of proper and accurate financial statements in accordance with GAAP and to maintain accountability for the Group Companies’ assets. The Group Companies maintain and, for all periods covered by the Financial Statements, have maintained books and records of the Group Companies in the ordinary course of business that are accurate and complete and reflect the revenues, expenses, assets and liabilities of the Group Companies in all material respects.
(e) Except as set forth in Section 3.4(e) of the Company Disclosure Schedule, since the incorporation of the Company, no Group Company has received any written complaint, allegation, assertion or claim that there is (i) “significant deficiency” in the internal controls over financial reporting of the Group Companies, (ii) a “material weakness” in the internal controls over financial reporting of the Group Companies or (iii) fraud, whether or not material, that involves management or other employees of the Group Companies who have a significant role in the internal controls over financial reporting of the Group Companies.
Appears in 1 contract
Financial Statements; Undisclosed Liabilities. (a) The Company has made available to HighCape a true Schedule 5.05 includes true, complete, and complete copy correct copies of (i) the audited consolidated balance sheets of the Group Companies Seller as of December 31September 30, 20192016, September 30, 2015, and September 30, 2014, and the related audited consolidated statements statement of operations and comprehensive lossincome, convertible preferred stock and stockholderspartners’ deficit equity, and cash flows of for the Group Companies for each of the periods fiscal years then ended, together with the notes thereto, and the other financial information included therewith, and (ii) the unaudited consolidated audited balance sheets sheet of the Group Companies Seller as of December 31September 30, 2020, and the related unaudited consolidated statements of operations and comprehensive loss, convertible preferred stock and stockholders’ deficit and cash flows of the Group Companies for the twelve (12)-month period then ended, and (iii) the unaudited consolidated balance sheets of the Group Companies as of December 31, 2019 and December 31, 2020 2017 (the “Latest Balance SheetSheet Date”) and the related unaudited consolidated statements audited statement of operations and comprehensive lossincome, convertible preferred stock and stockholderspartners’ deficit equity, and cash flows of for the Group Companies for each of the periods fiscal year then ended (clauses (i), (ii), and (iii) are collectively, the “Financial Statements”), each of which are attached as Section 3.4(a. 4846-4639-0869
(b) of the Company Disclosure Schedules. Each of the The Financial Statements (including including, without limitation, Inventory and Accounts Receivable) present fairly, in all material respects, the notes thereto) (A) was financial position, results of operations, partners’ equity, and cash flows of the Seller at the dates and for the time periods indicated. The Financial Statements have been prepared in accordance with GAAP applied on a consistent basis throughout the periods indicated (except as may be indicated in the notes thereto), (B) fairly presents, in all material respects, the financial position, results of operations and cash flows of the Group Companies as at the date thereof and for the period indicated therein, except as otherwise specifically noted therein, and (C) in the case of the involved. The Financial Statements included in clause (iii) only, were prepared in accordance with derived from the standards of the PCAOB, and comply in all material respects with the applicable accounting requirements and with the rules and regulations of the SEC, the Exchange Act and the Securities Act in effect as of the respective dates thereof (including Regulation S-X or Regulation S-K, as applicable).
(b) The audited consolidated balance sheets of the Group Companies as of December 31, 2019 and December 31, 2020, and the related audited consolidated statements of operations and comprehensive loss, convertible preferred stock and stockholders’ deficit and cash flows of the Group Companies for each of the periods then ended (the “Closing Company Audited Financial Statements”), when delivered following the date of this Agreement in accordance with Section 5.17, (i) will be prepared in accordance with GAAP applied on a consistent basis throughout the periods indicated (except as may be indicated in the notes thereto), (ii) will fairly present, in all material respects, the financial position, results of operations and cash flows of the Group Companies as at the date thereof and for the period indicated therein, except as otherwise specifically noted therein, (iii) will be audited in accordance with the standards of the PCAOB and will contain an unqualified report of the Company’s auditors, and (iv) will comply in all material respects with the applicable accounting requirements and with the rules and regulations of the SEC, the Exchange Act and the Securities Act in effect as of the respective dates thereof (including Regulation S-X or Regulation S-K, as applicable).
(c) Except (i) as set forth on the face of the Latest Balance Sheet, (ii) for Liabilities incurred in the ordinary course of business since the Latest Balance Sheet Date (none of which is a Liability for breach of contract, breach of warranty, tort, infringement or violation of Law), (iii) for Liabilities incurred in connection with the negotiation, preparation or execution of this Agreement or any Ancillary Documents, the performance of their respective covenants or agreements in this Agreement or any Ancillary Document or the consummation of the transactions contemplated hereby or thereby and (iv) for Liabilities that are not and would not reasonably be expected to be, individually or in the aggregate, material to the Group Companies, taken as a whole, no Group Company has any Liabilities of the type required to be set forth on a balance sheet in accordance with GAAP.
(d) The Group Companies have established and maintain systems of internal accounting controls that are designed to provide, in all material respects, reasonable assurance that (i) all transactions are executed in accordance with management’s authorization and (ii) all transactions are recorded as necessary to permit preparation of proper and accurate financial statements in accordance with GAAP and to maintain accountability for the Group Companies’ assets. The Group Companies maintain and, for all periods covered by the Financial Statements, have maintained books and records of the Group Companies Seller. The books of account of the Seller and to which the Buyer and its Representatives have been provided access are true, accurate, and complete, have been maintained in accordance with good business practices and fairly reflect all of the ordinary course properties, assets, Liabilities, and transactions of business the Seller. The internal controls and procedures of the Seller are sufficient to ensure that the Financial Statements are accurate true, correct, and complete and reflect the revenues, expenses, assets and liabilities of the Group Companies in all material respects.
(ec) Except as set forth in Section 3.4(e) The Inventory of the Company Disclosure ScheduleSeller is of a quality and quantity useable and saleable in the Ordinary Course of Business, since subject to allowances reflected on the incorporation Financial Statements for obsolete, excess, slow-moving, and other irregular items. Such allowances have been calculated in accordance with GAAP and in a manner consistent with past practice. The quantities of each item of Inventory (whether raw materials, work-in-process, or finished goods) are reasonable in the present circumstances of the Company, no Group Company has received any written complaint, allegation, assertion or claim that there is (i) “significant deficiency” in the internal controls over financial reporting Seller. None of the Group CompaniesSeller’s Inventory is held on consignment, (ii) a “material weakness” in the internal controls over financial reporting of the Group Companies or (iii) fraudotherwise, whether or not material, that involves management or other employees of the Group Companies who have a significant role in the internal controls over financial reporting of the Group Companiesby third parties.
Appears in 1 contract
Financial Statements; Undisclosed Liabilities. (a) The Company has made available to HighCape a true and complete copy Copies of each of the Companies’ (i) the audited consolidated balance sheets financial statements consisting of the Group Companies as balance sheet of December 31, 2019, and the related audited consolidated statements of operations and comprehensive loss, convertible preferred stock and stockholders’ deficit and cash flows of the Group Companies for each of the periods then ended, (ii) the unaudited consolidated balance sheets of the Group Companies as of December 31, 2020, and the related unaudited consolidated statements of operations and comprehensive loss, convertible preferred stock and stockholders’ deficit and cash flows of the Group Companies for the twelve (12)-month period then ended, and (iii) the unaudited consolidated balance sheets of the Group Companies as of December 31, 2019 and December 31the related statements of operations, 2020 members’ equity and cash flows for the year then ended (the “Latest Balance SheetAudited Financial Statements”), (ii) unaudited financial statements consisting of the unaudited balance sheet of each of the Companies as of December 31 in each of the years 2018 and 2017 and the related statements of operations, members’ equity and cash flows for the year then ended (the “Unaudited Financial Statements”) and (iii) unaudited financial statements consisting of the unaudited balance sheet of each of the Companies as of September 30, 2020 and the related unaudited consolidated income statements of operations and comprehensive loss, convertible preferred stock and stockholders’ deficit and cash flows of for the Group Companies for each of the periods nine-month period then ended (clauses (i), (ii), the “Interim Financial Statements” and (iii) are collectivelytogether with the Audited Financial Statements and Unaudited Financial Statements, the “Financial Statements”)) have previously been delivered and/or made available to Buyer. The Financial Statements have been derived from, and are consistent, in all material respects, with, the books and records of each of which are attached as Section 3.4(a) of the Company Disclosure Schedules. Each of the Financial Statements (including the notes thereto) (A) was Members and have been prepared in accordance with GAAP applied on a consistent basis throughout the periods indicated (except as may be indicated period involved, subject, in the case of the Interim Financial Statements, to normal and recurring year-end adjustments (none of which would be material, individually or in the aggregate) and the absence of notes thereto(that, if presented, would not differ materially from those included in the Audited Financial Statements), (B) fairly presentsand, on that basis, present fairly, in all material respects, the financial position, results condition of operations and cash flows each of the Group Companies as at the date thereof and for the period indicated therein, except as otherwise specifically noted therein, and (C) in the case of the Financial Statements included in clause (iii) only, were prepared in accordance with the standards of the PCAOB, and comply in all material respects with the applicable accounting requirements and with the rules and regulations of the SEC, the Exchange Act and the Securities Act in effect Company Members as of the respective dates thereof (including Regulation S-X they were prepared and the results of the operations of each of the Company Members for the periods indicated. No financial statements of any Person other than the Company Members are required by GAAP to be included or Regulation S-Kreflected in any of the foregoing financial statements. Each of the Companies have also delivered to Buyer true, as applicable)correct and complete copies of all letters from each of the Companies’ auditors to the respective Companies’ board of managers or audit committee during the 12 months prior to the date of this Agreement, together with true, correct and complete copies of all responses thereto.
(b) The audited consolidated balance sheets of Company Members have no Liabilities, except: (i) those which are adequately reflected or reserved against on the Group Companies Audited Balance Sheet as of December 31, 2019 and December 31, 2020, and the related audited consolidated statements of operations and comprehensive loss, convertible preferred stock and stockholders’ deficit and cash flows of the Group Companies for each of the periods then ended (the “Closing Company Audited Financial StatementsBalance Sheet Date”), when delivered following the date of this Agreement in accordance with Section 5.17, (i) will be prepared in accordance with GAAP applied on a consistent basis throughout the periods indicated (except as may be indicated in the notes thereto), (ii) will fairly present, in all material respects, the financial position, results of operations and cash flows of the Group Companies as at the date thereof and for the period indicated therein, except as otherwise specifically noted therein, (iii) will be audited in accordance with the standards of the PCAOB and will contain an unqualified report of the Company’s auditors, and (iv) will comply in all material respects with the applicable accounting requirements and with the rules and regulations of the SEC, the Exchange Act and the Securities Act in effect as of the respective dates thereof (including Regulation S-X or Regulation S-K, as applicable).
(c) Except (i) as set forth on the face of the Latest Balance Sheet, (ii) for Liabilities those which have been incurred in the ordinary course Ordinary Course of business Business since the Latest Audited Balance Sheet Date (none of which is a Liability for relate to breach of contract, breach of warranty, tort, infringement or infringement, violation of Lawor Liability under any Law or any Action, none of which are material individually or in the aggregate, and all of which will be included in the calculation of Closing Working Capital), and (iii) for Liabilities those incurred in connection with since the negotiation, preparation or execution of this Agreement or any Ancillary Documents, the performance of their respective covenants or agreements in this Agreement or any Ancillary Document or the consummation of the transactions contemplated hereby or thereby and (iv) for Liabilities Audited Balance Sheet Date that are not and would not not, reasonably be expected to beinvolve, individually or in the aggregate, material an amount greater than $15,000 to the Group CompaniesCompany Members, taken as a whole, no Group . The Company has Members do not maintain any Liabilities “off-balance sheet” arrangement within the meaning of Item 303(a)(4)(ii) of Regulation S-K of the type required to be set forth on a balance sheet in accordance with GAAPSEC.
(d) The Group Companies have established and maintain systems of internal accounting controls that are designed to provide, in all material respects, reasonable assurance that (i) all transactions are executed in accordance with management’s authorization and (ii) all transactions are recorded as necessary to permit preparation of proper and accurate financial statements in accordance with GAAP and to maintain accountability for the Group Companies’ assets. The Group Companies maintain and, for all periods covered by the Financial Statements, have maintained books and records of the Group Companies in the ordinary course of business that are accurate and complete and reflect the revenues, expenses, assets and liabilities of the Group Companies in all material respects.
(e) Except as set forth in Section 3.4(e) of the Company Disclosure Schedule, since the incorporation of the Company, no Group Company has received any written complaint, allegation, assertion or claim that there is (i) “significant deficiency” in the internal controls over financial reporting of the Group Companies, (ii) a “material weakness” in the internal controls over financial reporting of the Group Companies or (iii) fraud, whether or not material, that involves management or other employees of the Group Companies who have a significant role in the internal controls over financial reporting of the Group Companies.
Appears in 1 contract
Financial Statements; Undisclosed Liabilities. (a) The Company Medley has made available provided to HighCape a true Buyer accurate and complete copy copies of the Acquired Companies’ (i) consolidated unaudited balance sheet as of June 30, 2020, consolidated income statement for the nine-month period ended June 30, 2020, and schedule of investments as of June 30, 2020 (the “ Interim Financial Statements ”) and (ii) schedule of investments and consolidated audited consolidated balance sheets sheet as of and income statement for the fiscal year ended September 30, 2019. Except as set forth in Section 4.5 of the Group Companies as of December 31Seller Disclosure Schedule, 2019, and the related audited consolidated statements of operations and comprehensive loss, convertible preferred stock and stockholders’ deficit and cash flows of the Group Companies for each of the periods then endedforegoing financial statements (including in all cases the notes thereto, if any) (collectively, the “ Financial Statements ”)
(i) have been prepared in accordance with the books and records of the Acquired Companies (which are accurate and complete in all material respects), (ii) fairly present in all material respects the unaudited Acquired Companies’ consolidated balance sheets results of operations, cash flows, changes in members’ equity and consolidated financial position of the Group Companies as of December 31, 2020, and the related unaudited consolidated statements of operations and comprehensive loss, convertible preferred stock and stockholders’ deficit and cash flows of the Group Acquired Companies for the twelve (12)-month period then ended, and (iii) the unaudited consolidated balance sheets respective fiscal periods or as of the Group Companies as respective dates therein set forth (subject in the case of December 31, 2019 unaudited statements to recurring year-end audit adjustments normal in nature and December 31, 2020 (the “Latest Balance Sheet”) and the related unaudited consolidated statements of operations and comprehensive loss, convertible preferred stock and stockholders’ deficit and cash flows of the Group Companies for each of the periods then ended (clauses (i), (iiamount), and (iii) are collectively, the “Financial Statements”), each of which are attached as Section 3.4(a) of the Company Disclosure Schedules. Each of the Financial Statements (including the notes thereto) (A) was have been prepared in accordance with GAAP applied on a consistent basis throughout the GAAP. The Acquired Companies maintain, and have maintained for all periods indicated (except as may be indicated reflected in the notes thereto), (B) fairly presents, in all material respects, the financial position, results of operations and cash flows of the Group Companies as at the date thereof and for the period indicated therein, except as otherwise specifically noted therein, and (C) in the case of the Financial Statements included in clause (iii) only, were prepared in accordance with the standards of the PCAOB, and comply in all material respects with the applicable accounting requirements and with the rules and regulations of the SEC, the Exchange Act and the Securities Act in effect as of the respective dates thereof (including Regulation S-X or Regulation S-K, as applicable).
(b) The audited consolidated balance sheets of the Group Companies as of December 31, 2019 and December 31, 2020, and the related audited consolidated statements of operations and comprehensive loss, convertible preferred stock and stockholders’ deficit and cash flows of the Group Companies for each of the periods then ended (the “Closing Company Audited Financial Statements”), when delivered following the date of this Agreement in accordance with Section 5.17, (i) will be prepared in accordance with GAAP applied on a consistent basis throughout the periods indicated (except as may be indicated in the notes thereto), (ii) will fairly present, in all material respects, the financial position, results of operations proper and cash flows of the Group Companies as at the date thereof and for the period indicated therein, except as otherwise specifically noted therein, (iii) will be audited in accordance with the standards of the PCAOB and will contain an unqualified report of the Company’s auditors, and (iv) will comply in all material respects with the applicable accounting requirements and with the rules and regulations of the SEC, the Exchange Act and the Securities Act in effect as of the respective dates thereof (including Regulation S-X or Regulation S-K, as applicable).
(c) Except (i) as set forth on the face of the Latest Balance Sheet, (ii) for Liabilities incurred in the ordinary course of business since the Latest Balance Sheet Date (none of which is a Liability for breach of contract, breach of warranty, tort, infringement or violation of Law), (iii) for Liabilities incurred in connection with the negotiation, preparation or execution of this Agreement or any Ancillary Documents, the performance of their respective covenants or agreements in this Agreement or any Ancillary Document or the consummation of the transactions contemplated hereby or thereby and (iv) for Liabilities that are not and would not reasonably be expected to be, individually or in the aggregate, material to the Group Companies, taken as a whole, no Group Company has any Liabilities of the type required to be set forth on a balance sheet in accordance with GAAP.
(d) The Group Companies have established and maintain systems of adequate internal accounting controls that are designed to provide, in all material respects, reasonable provide assurance that (ix) all transactions are executed in accordance with management’s authorization and (ii) all transactions are recorded as necessary to permit accurate preparation of proper and accurate financial statements in accordance with GAAP its Financial Statements and to maintain accurate accountability for its assets; (y) the Group Companies’ assetsreporting of its assets is compared with existing assets at regular intervals; and (z) accounts, notes and other receivables and payables are recorded accurately, and proper and adequate procedures are implemented to effect the collection thereof on a current and timely basis. The Group Companies maintain and, for all periods covered by the Financial Statements, have maintained books and records None of the Group Sellers, Acquired Companies in the ordinary course or to Medley’s Knowledge, any Representative of business that are accurate and complete and reflect the revenues, expenses, assets and liabilities of the Group Companies in all material respects.
(e) Except as set forth in Section 3.4(e) of the Company Disclosure Schedule, since the incorporation of the Company, no Group an Acquired Company has received or otherwise had or obtained knowledge of any material complaint, allegation, assertion or claim, whether written or oral, regarding the accounting or auditing practices, procedures, methodologies or methods of an Acquired Company or their respective internal accounting controls, including any material complaint, allegation, assertion or claim that there is an Acquired Company has engaged in questionable accounting or auditing practices. No independent public accountant of a Seller or an Acquired Company has resigned (or informed such party that it intends to resign) or been dismissed as independent public accountants of a Seller or an Acquired Company as a result of or in connection with any disagreements with either Seller or an Acquired Company on a matter of accounting principles or practices, financial statement disclosure or auditing scope or procedure.
(b) No Acquired Company has any Liability (whether absolute, accrued, contingent or otherwise and whether due or to become due), except for (i) “significant deficiency” those Liabilities reflected or reserved against (in accordance with GAAP) in the internal controls over financial reporting of the Group CompaniesInterim Financial Statements, (ii) Liabilities incurred in a “material weakness” commercially reasonable manner, and in the internal controls over financial reporting ordinary course of business consistent with past practice, since the date of the Group Companies Interim Financial Statements, which are not, individually or in the aggregate, in excess of $250,000, none of which results from, arises out of, or relates to any breach or violation of, or default under, a Contract or Applicable Law and (iii) fraudthose funding obligations set forth in Section 4.9(a) of the Seller Disclosure Schedule. Notwithstanding the foregoing, whether or not material, that involves no Acquired Company (i) has any Liability to any Person with respect to any management fee or other employees of accrued expense; (ii) is a party to any Contract that will be in effect immediately following the Group Companies who have Closing, other than the Company Loan Documents, the Equity Governing Documents, and the Transaction Documents to which the Company is a significant role in the internal controls over financial reporting of the Group Companies.party; 13
Appears in 1 contract
Sources: Membership Interest Purchase Agreement (Medley Capital Corp)
Financial Statements; Undisclosed Liabilities. (a) The Company has made available to HighCape a true and complete copy of (i) the audited consolidated balance sheets of the Group Companies as of December 31, 2019, and the related audited consolidated financial statements of operations and comprehensive loss, convertible preferred stock and stockholders’ deficit and cash flows of the Group Companies for each of the periods then ended, (ii) the unaudited consolidated balance sheets of the Group Companies as of December 31, 2020, and the related unaudited consolidated statements of operations and comprehensive loss, convertible preferred stock and stockholders’ deficit and cash flows of the Group Companies for the twelve (12)-month period then ended, and (iii) the unaudited consolidated balance sheets of the Group Companies as of December 31, 2019 and December 31, 2020 (the “Latest Balance Sheet”) and the related unaudited consolidated statements of operations and comprehensive loss, convertible preferred stock and stockholders’ deficit and cash flows of the Group Companies for each of the periods then ended (clauses (i), (ii), and (iii) are collectively, the “Financial Statements”), each of which are attached as Section 3.4(a) of the Company Disclosure Schedules. Each included in the SEC Reports comply in all material respects with applicable accounting requirements and the rules and regulations of the Financial Statements (including SEC with respect thereto as in effect at the notes thereto) (A) was time of filing. Such financial statements have been prepared in accordance with U.S. GAAP applied on a consistent basis throughout during the periods indicated (involved, except as may be indicated otherwise specified in such financial statements or the notes thereto)thereto and except that unaudited financial statements may not contain all footnotes required by U.S. GAAP, (B) and fairly presents, present in all material respects, respects the financial position, position of the Company and its consolidated subsidiaries taken as a whole as of and for the dates thereof and the results of operations and cash flows of the Group Companies as at the date thereof and for the period indicated thereinperiods then ended, except as otherwise specifically noted thereinsubject, and (C) in the case of unaudited statements, to normal, year-end audit adjustments. The pro forma financial information and the Financial Statements related notes, if any, included in clause (iii) only, were the SEC Reports and prepared in accordance with the standards applicable provisions of Regulation S-X have been properly compiled and prepared in accordance with the applicable requirements of the PCAOB, Securities Act and comply the regulations promulgated thereunder and fairly present in all material respects with the applicable accounting requirements and with the rules and regulations of the SEC, the Exchange Act and the Securities Act in effect as of the respective dates thereof (including Regulation S-X or Regulation S-K, as applicable).
(b) The audited consolidated balance sheets of the Group Companies as of December 31, 2019 and December 31, 2020information shown therein, and the related audited assumptions used in the preparation thereof are reasonable and the adjustments used therein are appropriate to give effect to the transactions and circumstances referred to therein. Neither the Company nor any of its subsidiaries has any liabilities of any nature (whether accrued, absolute, contingent or otherwise) that would be required under the U.S. GAAP to be reflected on a consolidated statements of operations and comprehensive loss, convertible preferred stock and stockholders’ deficit and cash flows balance sheet of the Group Companies for each of the periods then ended Company (the “Closing Company Audited Financial Statements”), when delivered following the date of this Agreement in accordance with Section 5.17, (i) will be prepared in accordance with GAAP applied on a consistent basis throughout the periods indicated (except as may be indicated in including the notes thereto), (ii) will fairly present, in all material respects, the financial position, results of operations and cash flows of the Group Companies as at the date thereof and except for the period indicated therein, except as otherwise specifically noted therein, (iii) will be audited in accordance with the standards of the PCAOB and will contain an unqualified report of the Company’s auditors, and (iv) will comply in all material respects with the applicable accounting requirements and with the rules and regulations of the SEC, the Exchange Act and the Securities Act in effect as of the respective dates thereof (including Regulation S-X or Regulation S-K, as applicable).
(c) Except liabilities (i) as set forth on reflected or reserved against in the face balance sheet (or the notes thereto) of the Latest Company as of September 30, 2023 included in the SEC Reports (the “Balance SheetSheet Date”), (ii) for Liabilities incurred after the Balance Sheet Date in the ordinary course of business since the Latest Balance Sheet Date (none of which is a Liability for breach of contractbusiness, breach of warranty, tort, infringement or violation of Law), (iii) for Liabilities as expressly contemplated by this Agreement or otherwise incurred in connection with the negotiation, preparation or execution of this Agreement or any Ancillary Documents, the performance of their respective covenants or agreements in this Agreement or any Ancillary Document or the consummation of the transactions contemplated hereby or thereby and (iv) for Liabilities that are not and would not reasonably be expected to be, individually or in the aggregate, material to the Group Companies, taken as a whole, no Group Company has any Liabilities of the type required to be set forth on a balance sheet in accordance with GAAPby this Agreement.
(d) The Group Companies have established and maintain systems of internal accounting controls that are designed to provide, in all material respects, reasonable assurance that (i) all transactions are executed in accordance with management’s authorization and (ii) all transactions are recorded as necessary to permit preparation of proper and accurate financial statements in accordance with GAAP and to maintain accountability for the Group Companies’ assets. The Group Companies maintain and, for all periods covered by the Financial Statements, have maintained books and records of the Group Companies in the ordinary course of business that are accurate and complete and reflect the revenues, expenses, assets and liabilities of the Group Companies in all material respects.
(e) Except as set forth in Section 3.4(e) of the Company Disclosure Schedule, since the incorporation of the Company, no Group Company has received any written complaint, allegation, assertion or claim that there is (i) “significant deficiency” in the internal controls over financial reporting of the Group Companies, (ii) a “material weakness” in the internal controls over financial reporting of the Group Companies or (iii) fraud, whether or not material, that involves management or other employees of the Group Companies who have a significant role in the internal controls over financial reporting of the Group Companies.
Appears in 1 contract
Financial Statements; Undisclosed Liabilities. (a) The Company Seller has made available to HighCape a Buyer true and complete copy copies of (i) the audited consolidated balance sheets sheet of the Group Companies Company as of December 31, 2019, 2013 and the related audited consolidated statements statement of operations and comprehensive loss, convertible preferred stock and stockholders’ deficit income and cash flows of for the Group Companies for each of the periods then endedyear ended December 31, 2013 and (ii) the unaudited consolidated balance sheets sheet of the Group Companies Company, as of December 31April 30, 2020, and the related unaudited consolidated statements of operations and comprehensive loss, convertible preferred stock and stockholders’ deficit and cash flows of the Group Companies for the twelve 2014 (12)-month period then ended, and (iii) the unaudited consolidated balance sheets of the Group Companies as of December 31, 2019 and December 31, 2020 (the “Latest Balance Sheet”) and the related unaudited consolidated statements of operations and comprehensive loss, convertible preferred stock and stockholders’ deficit and cash flows of the Group Companies for each of the periods then ended (clauses (i), (ii), and (iii) are collectively, the “Company Financial Statements”). The Company Financial Statements are set forth in Schedule 3.6(a), each of which are attached as Section 3.4(a) consistent with the Books and Records of the Company Disclosure Schedules. Each of the Financial Statements (including the notes thereto) (A) was Company, have been prepared in accordance with GAAP applied on a consistent basis throughout the periods indicated (except as may be indicated in the notes thereto)consistently applied, (B) and fairly presents, present in all material respects, respects the financial position, condition and the results of operations and cash flows of the Group Companies as at the date thereof and for the period indicated therein, except as otherwise specifically noted therein, and (C) in the case of the Financial Statements included in clause (iii) only, were prepared in accordance with the standards of the PCAOB, and comply in all material respects with the applicable accounting requirements and with the rules and regulations of the SEC, the Exchange Act and the Securities Act in effect Company as of the respective dates thereof (including Regulation S-X or Regulation S-K, as applicable)and the results of its operations for the periods covered thereby.
(b) The audited consolidated Seller has made available to Buyer the unaudited pro forma balance sheets sheet and statement of income of the Marketing Company Group Companies as of December May 31, 2019 and December 312014 (collectively, 2020, and the related audited consolidated statements of operations and comprehensive loss, convertible preferred stock and stockholders’ deficit and cash flows of the Group Companies for each of the periods then ended (the “Closing Marketing Company Audited Group Financial Statements” and together with the Company Financial Statements, the “Financial Statements”). The Marketing Company Group Financial Statements are set forth in Schedule 3.6(b), when delivered following are consistent with the date Books and Records of this Agreement in accordance with Section 5.17the Company, (i) will be have been prepared in accordance with GAAP consistently applied on a consistent basis throughout the periods indicated (except as may be indicated in the notes thereto), (ii) will and fairly present, in all material respects, the financial position, results of operations and cash flows of the Group Companies as at the date thereof and for the period indicated therein, except as otherwise specifically noted therein, (iii) will be audited in accordance with the standards of the PCAOB and will contain an unqualified report of the Company’s auditors, and (iv) will comply presents in all material respects with the applicable accounting requirements and with the rules and regulations financial condition of the SEC, the Exchange Act and the Securities Act in effect Marketing Company Group as of the respective dates thereof date thereof, except that (including Regulation S-X i) no statement of cash flows, shareholders equity or Regulation S-K, comprehensive income have been included and no footnotes have been included and (ii) certain pro forma adjustments have been made as applicable)are noted on the Marketing Company Group Financial Statements.
(c) Except (i) as set forth on the face of the Latest Balance Sheet, (ii) for Liabilities incurred in the ordinary course of business since the Latest Balance Sheet Date (none of which is a Liability for breach of contract, breach of warranty, tort, infringement or violation of LawSchedule 3.6(c), no Acquired Entity has any liability or obligation (iiiwhether accrued, absolute, contingent or otherwise) for Liabilities incurred in connection with the negotiation, preparation or execution of this Agreement or any Ancillary Documents, the performance of their respective covenants or agreements in this Agreement or any Ancillary Document or the consummation of the transactions contemplated hereby or thereby and (iv) for Liabilities that are not and would not reasonably be expected to bewhich, individually or in the aggregate, is material to the Marketing Company Group Companiesother than (i) liabilities reflected or reserved against in the Financial Statements, taken (ii) liabilities or obligations that have arisen since December 31, 2013, in the ordinary course of business, none of which would reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect, (iii) liabilities or obligations arising from the transactions and positions disclosed on the Initial Customer List or the Initial Position Report delivered to Buyer pursuant to this Agreement (or the updated Customer List or Position Report delivered pursuant to Section 5.16 prior to the Closing, as a wholeapplicable), no Group Company has any Liabilities of the type required to be set forth on a balance sheet and incurred in accordance with GAAPthe terms of the applicable underlying Contract, or (iv) liabilities or obligations incurred in accordance with the terms of this Agreement or any Material Contract.
(d) The Group Companies have established Except with respect to Seller Credit Support and expenses incurred under Affiliate Contracts which are reimbursed by, or otherwise passed through to, an Acquired Entity, Seller and its Affiliates (other than the Acquired Entities) do not maintain systems of internal accounting controls that are designed in their -21- respective financial Books and Records any material liability or expense reserves or similar financial accounts relating to provide, in all material respects, reasonable assurance that (i) all transactions are executed in accordance with management’s authorization and (ii) all transactions are recorded as necessary to permit preparation of proper and accurate financial statements in accordance with GAAP and to maintain accountability for the Group Companies’ assets. The Group Companies maintain and, for all periods covered by the Financial Statements, have maintained books and records business of the Group Companies in the ordinary course of business that are accurate and complete and reflect the revenues, expenses, assets and liabilities of the Group Companies in all material respectsMarketing Company Group.
(e) Except as set forth in Section 3.4(e) of the Company Disclosure Schedule, since the incorporation of the Company, no Group Company has received any written complaint, allegation, assertion or claim that there is (i) “significant deficiency” in the internal controls over financial reporting of the Group Companies, (ii) a “material weakness” in the internal controls over financial reporting of the Group Companies or (iii) fraud, whether or not material, that involves management or other employees of the Group Companies who have a significant role in the internal controls over financial reporting of the Group Companies.
Appears in 1 contract
Sources: Stock Purchase Agreement (Integrys Energy Group, Inc.)
Financial Statements; Undisclosed Liabilities. (a) The Company has made available to HighCape Section 4.4(a) of the Seller Disclosure Schedules sets forth a true true, complete and complete correct copy of the selected unaudited balance sheet of the Business and the unaudited reported summary income statement of the Business, in each case for the year-ended December 31, 2023 and December 31, 2024 (the “Preliminary Financial Statements”). The Preliminary Financial Statements (i) were derived from the audited consolidated balance sheets applicable books and records of the Group Companies as of December 31, 2019, and the related audited consolidated statements of operations and comprehensive loss, convertible preferred stock and stockholders’ deficit and cash flows of the Group Companies for each of the periods then endedSeller Group, (ii) the unaudited consolidated balance sheets of the Group Companies as of December 31, 2020, and the related unaudited consolidated statements of operations and comprehensive loss, convertible preferred stock and stockholders’ deficit and cash flows of the Group Companies for the twelve (12)-month period then ended, and (iii) the unaudited consolidated balance sheets of the Group Companies as of December 31, 2019 and December 31, 2020 (the “Latest Balance Sheet”) and the related unaudited consolidated statements of operations and comprehensive loss, convertible preferred stock and stockholders’ deficit and cash flows of the Group Companies for each of the periods then ended (clauses (i), (ii), and (iii) are collectively, the “Financial Statements”), each of which are attached as Section 3.4(a) of the Company Disclosure Schedules. Each of the Financial Statements (including the notes thereto) (A) was prepared in accordance with GAAP applied on a consistent basis throughout the periods indicated (except as may be indicated in the notes thereto), (B) fairly presentspresent, in all material respects, the financial position, position and results of operations and cash flows of the Group Companies Business (subject to customary year-end adjustments, which are not material, individually or in the aggregate, and the absence of notes (which if presented, would not materially change the financial position and results of operations of the Business)) as at of the respective date thereof and for the period indicated therein, except as otherwise specifically noted therein, respective periods covered thereby and (C) in the case of the Financial Statements included in clause (iii) only, were prepared in accordance with the standards of the PCAOBGAAP principles, and comply in all material respects with the applicable accounting requirements and with the rules and regulations of the SECexcept as may be noted therein, the Exchange Act and the Securities Act in effect as of the respective dates thereof (including Regulation S-X or Regulation S-K, as applicable)under a management reporting framework.
(b) The audited consolidated balance sheets of When delivered by Seller and Everen to Buyers pursuant to Section 6.21, the Group Companies as of December 31, 2019 and December 31, 2020, and the related audited consolidated statements of operations and comprehensive loss, convertible preferred stock and stockholders’ deficit and cash flows of the Group Companies for each of the periods then ended (the “Closing Company Audited applicable Financial Statements”), when delivered following the date of this Agreement in accordance with Section 5.17, Statements (i) will be prepared in accordance with GAAP applied on a consistent basis throughout derived from the periods indicated (except as may be indicated in applicable books and records of the notes thereto)Seller Group, (ii) will fairly present, in all material respects, the financial position, results of operations and cash flows of the Group Companies Business (subject, in the case of the Interim Business Financial Statements, to customary year-end adjustments, which are not material, individually or in the aggregate) as at of the respective date thereof and for the period indicated therein, except as otherwise specifically noted thereinrespective periods covered thereby, (iii) will be audited were prepared in accordance with GAAP consistently applied during the standards of the PCAOB and will contain an unqualified report of the Company’s auditorsperiod involved, except as may be noted therein, and (iv) will comply in all material respects with the applicable accounting requirements and with the rules and regulations of the SEC, the Exchange Act and the Securities Act in effect be Compliant (as of the respective dates thereof (including Regulation S-X or Regulation S-K, as applicabletime of delivery).
(c) Except The Seller Group maintains internal accounting controls that are applicable to the Business that are sufficient to provide reasonable assurance that (i) transactions are recorded as set forth on the face necessary to (A) permit preparation of the Latest Balance SheetPreliminary Financial Statements and the Financial Statements in respect of the Business in conformity with GAAP, except as may be noted therein, and to maintain accountability for their respective assets in respect of the Business and (ii) accounts, notes and other receivables and inventory in respect of the Business are recorded timely and accurately, and proper and adequate procedures are implemented to effect the collection thereof on a current and timely basis.
(d) Section 4.4(a) and Section 4.4(b) are qualified by the fact that the Business has not operated as a separate “stand alone” entity within Seller, Everen or their Affiliates, and, as a result, the Business has been (or may be) allocated certain services revenue and certain charges and credits for purposes of the preparation of the Preliminary Financial Statements (and the Financial Statements, as applicable, when delivered) and certain estimates were made with respect thereto, which allocations and estimates do not necessarily reflect the amounts that would have resulted from arms’ length transactions or the actual revenue, cost or expense that would be incurred or recorded if the Business operated as an independent enterprise.
(e) There are no Liabilities of the Business that would be Assumed Liabilities, other than Liabilities that (i) have been adequately reserved against and specifically reflected in the Preliminary Financial Statements, (ii) for Liabilities are Permitted Liens, (iii) have been incurred pursuant to this Agreement or the Ancillary Agreements, (iv) were incurred in the ordinary course Ordinary Course of business Business since the Latest Balance Sheet Date December 31, 2024 (none of which is a Liability liability for breach of contract, breach of warranty, tort, infringement or infringement, violation of Law, or that relates to any cause of Action), or (iiiv) for Liabilities incurred in connection with the negotiation, preparation or execution of this Agreement or any Ancillary Documents, the performance of their respective covenants or agreements in this Agreement or any Ancillary Document or the consummation of the transactions contemplated hereby or thereby and (iv) for Liabilities that are not and would not reasonably be expected to be, individually or in the aggregate, material to the Group Companies, taken as a whole, no Group Company has any Liabilities of the type required to be set forth on a balance sheet in accordance with GAAPmaterial.
(d) The Group Companies have established and maintain systems of internal accounting controls that are designed to provide, in all material respects, reasonable assurance that (i) all transactions are executed in accordance with management’s authorization and (ii) all transactions are recorded as necessary to permit preparation of proper and accurate financial statements in accordance with GAAP and to maintain accountability for the Group Companies’ assets. The Group Companies maintain and, for all periods covered by the Financial Statements, have maintained books and records of the Group Companies in the ordinary course of business that are accurate and complete and reflect the revenues, expenses, assets and liabilities of the Group Companies in all material respects.
(e) Except as set forth in Section 3.4(e) of the Company Disclosure Schedule, since the incorporation of the Company, no Group Company has received any written complaint, allegation, assertion or claim that there is (i) “significant deficiency” in the internal controls over financial reporting of the Group Companies, (ii) a “material weakness” in the internal controls over financial reporting of the Group Companies or (iii) fraud, whether or not material, that involves management or other employees of the Group Companies who have a significant role in the internal controls over financial reporting of the Group Companies.
Appears in 1 contract
Sources: Purchase Agreement (Gatx Corp)
Financial Statements; Undisclosed Liabilities. (a) The Set forth on Schedule 2.4(a) of the Company has made available to HighCape a true and complete copy of Disclosure Letter are (i) the audited consolidated balance sheets financial statements of the Group Companies Company as of December 31, 2019, and for the related audited consolidated statements of operations and comprehensive loss, convertible preferred stock and stockholders’ deficit and cash flows of the Group Companies for each of the periods then ended, (ii) the unaudited consolidated balance sheets of the Group Companies as of fiscal year ended December 31, 2020, ; and the related (ii) unaudited consolidated financial statements of operations and comprehensive loss, convertible preferred stock and stockholders’ deficit and cash flows of the Group Companies for the twelve (12)-month period then ended, and (iii) the unaudited consolidated balance sheets of the Group Companies Company as of December 31June 30, 2019 and December 312021 (which includes, 2020 (the “Latest Balance Sheet”) and the related unaudited consolidated in each case, balance sheets, changes in shareholders’ equity, statements of operations income and comprehensive loss, convertible preferred stock and stockholders’ deficit and statements of cash flows of the Group Companies for each of the periods then ended flows) (clauses (i), (ii), and (iii) are collectively, the “Financial Statements”), each of which are attached as Section 3.4(a) of the Company Disclosure Schedules. Each of the The Financial Statements (including the notes theretoi) (A) was are complete, true and correct in all material respects and have been prepared in accordance with GAAP applied Accounting Principles on a consistent basis throughout the periods indicated and consistent with each other (except as may subject, with respect to the unaudited financial statements referred to in clause (ii) below, to normal and recurring year-end adjustments the effect of which would not be indicated in material, and the notes theretoabsence of notes), (B) fairly presents, present in all material respects, respects the financial position, results of operations and cash flows of the Group Companies Company as at the date thereof dates and for the period periods indicated therein, except as otherwise specifically noted therein, and (Cii) in are consistent with the case books and records of the Financial Statements included in clause (iii) only, were prepared in accordance with the standards of the PCAOB, Company and comply in all material respects with the applicable accounting requirements and with the rules and regulations of the SEC, the Exchange Act and the Securities Act in effect as of the respective dates thereof (including Regulation S-X or Regulation S-K, as applicable).
(b) The audited consolidated balance sheets of the Group Companies as of December 31, 2019 and December 31, 2020, and the related audited consolidated statements of operations and comprehensive loss, convertible preferred stock and stockholders’ deficit and cash flows of the Group Companies for each of the periods then ended (the “Closing Company Audited Financial Statements”), when delivered following the date of this Agreement in accordance with Section 5.17, (i) will be prepared in accordance with GAAP applied on a consistent basis throughout the periods indicated (except as may be indicated in the notes thereto), (ii) will fairly present, in all material respects, the financial position, results of operations and cash flows of the Group Companies as at the date thereof and for the period indicated therein, except as otherwise specifically noted therein, (iii) will be audited in accordance with the standards of the PCAOB and will contain an unqualified report of the Company’s auditors, and (iv) will comply in all material respects with the applicable accounting requirements and with the rules and regulations of the SEC, the Exchange Act and the Securities Act in effect as of the respective dates thereof (including Regulation S-X or Regulation S-K, as applicable).
(c) Except (i) as set forth on the face of the Latest Balance Sheet, (ii) for Liabilities incurred its Subsidiaries maintained in the ordinary course of business since the Latest Balance Sheet Date (none of which is a Liability for breach of contract, breach of warranty, tort, infringement or violation of Law), (iii) for Liabilities incurred in connection with the negotiation, preparation or execution of this Agreement or any Ancillary Documents, the performance of their respective covenants or agreements in this Agreement or any Ancillary Document or the consummation of the transactions contemplated hereby or thereby and (iv) for Liabilities that are not and would not reasonably be expected to be, individually or in the aggregate, material to the Group Companies, taken as a whole, no Group Company has any Liabilities of the type required to be set forth on a balance sheet in accordance with GAAP.
(d) The Group Companies have established and maintain systems of internal accounting controls that are designed to provide, in all material respects, reasonable assurance that (i) all transactions are executed in accordance with management’s authorization and (ii) all transactions are recorded as necessary to permit preparation of proper and accurate financial statements in accordance with GAAP and to maintain accountability for the Group Companies’ assetsLegal Requirements. The Group Companies maintain and, for all periods covered by transactions reflected in the Financial StatementsStatements represent bona fide transactions, have maintained books and records of the Group Companies in the ordinary course of business that are accurate and complete and reflect the revenues, expenses, assets and liabilities of the Group Companies in all material respectsCompany and its Subsidiaries have been properly recorded therein.
(eb) Except as set forth in Section 3.4(e) of the Company Disclosure Schedule, since the incorporation of the Company, no Group The Company has received any written complaint, allegation, assertion or claim in place systems and processes (including the maintenance of proper books and records) that there is (i) “significant deficiency” in provide reasonable assurances regarding the internal controls over financial reporting reliability of the Group Companies, Financial Statements and (ii) in a “material weakness” timely manner accumulate and communicate to the Company’s principal executive officer and principal financial officer the type of information that would be required to be disclosed in the Financial Statements prepared in accordance with Accounting Principles as consistently applied by the Company in the Financial Statements. The Company has not identified nor been made aware of any evidence, third party claims or internal controls over financial reporting or external allegations that the Company or any of the Group Companies its officers or (iii) accounting managers have engaged in fraud, whether or not material, that involves management occurred during any period covered by the Financial Statements, including any fraudulent accounting practices relating to the Company.
(c) The Company or its Subsidiaries have no Liabilities of any nature, including for unpaid Taxes, whether or not required to be reflected or reserved in financial statements in accordance with GAAP, other employees than (i) those set forth or adequately provided for in the balance sheet included in the Financial Statements as of June 30, 2021 (the “Company Balance Sheet” and the “Company Balance Sheet Date”, respectively), (ii) those incurred in the conduct of the Group Companies who have a significant role Company’s or its Subsidiaries’ business since the Company Balance Sheet Date in the internal controls over financial reporting ordinary course, consistent with past practice, and which, at the Closing, will be reflected in the Closing Adjustments Statement, and (iii) those set forth on Schedule 2.4(c) of the Company Disclosure Letter.
(d) All accounts receivable of the Group CompaniesCompany and its Subsidiaries as of the Company Balance Sheet Date are reflected on the Company Balance Sheet, and all accounts receivable that have arisen from the date of the Company Balance Sheet (i) have arisen in the ordinary course of business, consistent with past practices and at an arm’s length, (ii) represent bona fide claims against debtors for sales and other charges and (iii) are collectable in full (without any discount, set-off or counterclaim and without the need to resort to litigation) in accordance with their respective terms. The Company or its Subsidiaries have not received a written notice indicating that any of such accounts receivable is subject to any claim of offset, recoupment, setoff or counter-claim, and the Company has no Knowledge of any specific 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 or its Subsidiaries of any obligation or Contract other than normal warranty repair and replacement. There are no reserves for doubtful accounts provided in the Company Balance Sheet. The accounts payable of the Company and its Subsidiaries have been incurred or have arisen in the ordinary course of business. No accounts payable of the Company is past due nor is the Company otherwise in default in its payment of any such amounts. Since the Company Balance Sheet Date through the Closing Date, the Company and its Subsidiaries have paid and will pay its accounts payable in the ordinary course of business consistent with the Company’s and its Subsidiaries’ past practice, except for those accounts payable the Company or its Subsidiaries are contesting in good faith.
(e) Schedule 2.4(e) of the Company Disclosure Letter sets forth the names and locations of all banks and other financial institutions at which the Company and its Subsidiaries maintains accounts.
Appears in 1 contract
Financial Statements; Undisclosed Liabilities. (a) The Company has True and complete copies of the following financial statements have been made available to HighCape a true and complete copy of the Purchaser: (i) the audited consolidated balance sheets of the Group Companies Company as of December 31, 20192015 and December 31, 2016, and the related audited consolidated statements of operations and comprehensive lossoperations, convertible preferred stock and stockholders’ deficit retained deficit, and cash flows of the Group Companies Company for each of the periods fiscal years then ended, and the reports of the Company’s independent auditors (the “Audited Financial Statements”), and (ii) the unaudited consolidated balance sheets of the Group Companies Company as of December 31, 20202017 and December 30, 2018, and the related unaudited consolidated statements of operations and comprehensive loss, convertible preferred stock and stockholders’ deficit and cash flows of the Group Companies Company for such periods (the twelve (12)-month period then ended, “Unaudited Financial Statements”) and (iii) the unaudited consolidated balance sheets of the Group Companies Company as of December March 31, 2019, June 30, 2019, July 31, 2019 and December August 31, 2020 2019 (the “Latest Balance Sheet”) Interim Financial Statements” and, together with the Audited Financial Statements and the related unaudited consolidated statements of operations and comprehensive loss, convertible preferred stock and stockholders’ deficit and cash flows of the Group Companies for each of the periods then ended (clauses (i), (ii), and (iii) are collectivelyUnaudited Financial Statements, the “Financial Statements”), each of which are attached . Except as Section 3.4(aset forth in Schedule 3.07(a) of the Company Disclosure Schedules. Each of Schedule, the Financial Statements (including including, in each case, any notes to such statements) have been prepared on a basis consistent with the notes thereto) (A) was prepared books and records of the Company, and present fairly the financial condition, results of operations and cash flows of the Company in all material respects in accordance with GAAP with, in the case of the Unaudited Financial Statements and Interim Financial Statements, the Specified Accounting Principles, and, in the case of the Audited Financial Statements, generally accepted accounting principles in effect in Canada at the date of determination as recommended in Part II – Accounting Standards for Private Enterprises (ASPE) of the CPA Canada Handbook – Accounting of the Chartered Professional Accountants of Canada, in each case, applied on a consistent basis throughout the periods indicated (except as may be indicated in the notes thereto)thereto or, (B) fairly presents, in all material respects, the financial position, results of operations and cash flows of the Group Companies as at the date thereof and for the period indicated therein, except as otherwise specifically noted therein, and (C) in the case of the Unaudited Financial Statements included and Interim Financial Statements, footnotes and other presentation items, in clause (iii) only, were prepared each case none of which is material either individually or in accordance with the standards of the PCAOB, and comply in all material respects with the applicable accounting requirements and with the rules and regulations of the SEC, the Exchange Act and the Securities Act in effect as of the respective dates thereof (including Regulation S-X or Regulation S-K, as applicableaggregate).
(b) The audited consolidated balance sheets of the Group Companies as of December 31, 2019 and December 31, 2020, and the related audited consolidated statements of operations and comprehensive loss, convertible preferred stock and stockholders’ deficit and cash flows of the Group Companies for each of the periods then ended (the “Closing Company Audited Financial Statements”), when delivered following the date of this Agreement in accordance with Section 5.17, has no obligation or Liability other than: (i) will be prepared in accordance with GAAP applied on a consistent basis throughout the periods indicated (except as may be indicated in the notes thereto), (ii) will fairly present, in all material respects, the financial position, results of operations liabilities and cash flows of the Group Companies as at the date thereof and for the period indicated therein, except as otherwise specifically noted therein, (iii) will be audited in accordance with the standards of the PCAOB and will contain an unqualified report of the Company’s auditors, and (iv) will comply in all material respects with the applicable accounting requirements and with the rules and regulations of the SEC, the Exchange Act and the Securities Act in effect as of the respective dates thereof (including Regulation S-X or Regulation S-K, as applicable).
(c) Except (i) as obligations set forth on the face of the Latest balance sheet of the Company as of August 31, 2019 (the “Reference Balance Sheet”), (ii) for Liabilities incurred liabilities and obligations which have arisen since the date of the Reference Balance Sheet in the ordinary course of business since the Latest Balance Sheet Date (none of which is a Liability for breach of contractbusiness, breach of warranty, tort, infringement or violation of Law), and (iii) for Liabilities incurred in connection with the negotiation, preparation or execution of this Agreement or any Ancillary Documents, the performance of their respective covenants or agreements in this Agreement or any Ancillary Document or the consummation of the transactions contemplated hereby or thereby liabilities and (iv) for Liabilities that are not obligations as and would not reasonably be expected to be, individually or in the aggregate, material to the Group Companies, taken as a whole, no Group Company has any Liabilities of the type required to be extent set forth on a balance sheet in accordance with GAAP.
(d) The Group Companies have established and maintain systems of internal accounting controls that are designed to provide, in all material respects, reasonable assurance that (i) all transactions are executed in accordance with management’s authorization and (ii) all transactions are recorded as necessary to permit preparation of proper and accurate financial statements in accordance with GAAP and to maintain accountability for the Group Companies’ assets. The Group Companies maintain and, for all periods covered by the Financial Statements, have maintained books and records of the Group Companies in the ordinary course of business that are accurate and complete and reflect the revenues, expenses, assets and liabilities of the Group Companies in all material respects.
(e) Except as set forth in Section 3.4(eSchedule 3.07(b) of the Company Disclosure Schedule, since the incorporation of the Company, no Group Company has received any written complaint, allegation, assertion or claim that there is (i) “significant deficiency” in the internal controls over financial reporting of the Group Companies, (ii) a “material weakness” in the internal controls over financial reporting of the Group Companies or (iii) fraud, whether or not material, that involves management or other employees of the Group Companies who have a significant role in the internal controls over financial reporting of the Group Companies.
Appears in 1 contract
Financial Statements; Undisclosed Liabilities. (a) The Company has made available to HighCape a true and complete copy Copies of Company’s (i) the audited consolidated balance sheets financial statements consisting of the Group Companies balance sheet of Company as of December 31 in each of the years 2021, 2022, and 2023 and the related statements of operations, members’ or stockholders’, as applicable, equity for the years then ended (the “Annual Financial Statements”), and (ii) financial statements consisting of the balance sheet of the Company (the “Balance Sheet”) as of December 31, 2019, and the related audited consolidated statements of operations and comprehensive loss, convertible preferred stock and stockholders’ deficit and cash flows of the Group Companies for each of the periods then ended, (ii) the unaudited consolidated balance sheets of the Group Companies as of December 31, 2020, and the related unaudited consolidated statements of operations and comprehensive loss, convertible preferred stock and stockholders’ deficit and cash flows of the Group Companies for the twelve (12)-month period then ended, and (iii) the unaudited consolidated balance sheets of the Group Companies as of December 31, 2019 and December 31, 2020 2024 (the “Latest Balance SheetSheet Date”) and the related unaudited consolidated statements of operations operations, members’ or stockholders’, as applicable, equity for the twelve-month period then ended showing revenues and comprehensive loss, convertible preferred stock and stockholders’ deficit and cash flows expenses of the Group Companies for each of Business (the periods then ended (clauses (i), (ii), “Interim Financial Statements” and (iii) are collectivelytogether with the Annual Financial Statements, the “Financial Statements”), each of which are attached as Section 3.4(a) of the Company Disclosure Scheduleshave previously been delivered and/or made available to Purchaser. Each of the The Financial Statements (including i) have been prepared consistent with past practices, based on the notes thereto) (A) was prepared in accordance with GAAP applied on a consistent basis throughout books and records of the periods indicated (except as may be indicated in Company, the notes thereto), (B) Business and Purchased Assets and fairly presents, in all material respectspresent, the financial position, results condition of operations and cash flows of the Group Companies as at the date thereof and for the period indicated therein, except as otherwise specifically noted therein, and (C) in the case of the Financial Statements included in clause (iii) only, were prepared in accordance with the standards of the PCAOB, and comply in all material respects with the applicable accounting requirements and with the rules and regulations of the SECCompany, the Exchange Act Business and the Securities Act in effect Purchased Assets as of the respective dates thereof (including Regulation S-X or Regulation S-K, as applicable).
(b) The audited consolidated balance sheets and the results of the Group Companies as operations of December 31, 2019 and December 31, 2020, Company and the related audited consolidated statements of operations and comprehensive loss, convertible preferred stock and stockholders’ deficit and cash flows of the Group Companies Business for each of the periods then ended (the “Closing Company Audited Financial Statements”)indicated, when delivered following the date of this Agreement in each case in accordance with Section 5.17GAAP, (i) will be prepared in accordance with GAAP applied on a consistent basis throughout the periods indicated (except as may be indicated subject, in the notes thereto)case of Interim Financial Statements, to normal recurring year-end adjustments (the effect of which will not, individually or in the aggregate, be material) and the absence of notes, (ii) will fairly presentcontain and reflect all adjustments, in all material respectsaccruals (including, without limitation, accruals for incentive-based compensation), provisions and allowances necessary for a fair presentation of the financial position, condition and the results of operations and cash flows of the Group Companies as at Company and the date thereof and Business for the period indicated therein, except as otherwise specifically noted thereinperiods covered by such Financial Statement in accordance with GAAP, (iii) will be audited to the extent applicable contains and reflects adequate provisions for all reasonably anticipated Liabilities for all Taxes with respect to the periods covered by such Financial Statement and all prior periods in accordance with the standards of the PCAOB and will contain an unqualified report of the Company’s auditorsGAAP, and (iv) will comply in all material respects with reflects the applicable accounting requirements and with consistent application of GAAP throughout the rules and regulations of the SEC, the Exchange Act and the Securities Act in effect as of the respective dates thereof (including Regulation S-X or Regulation S-K, as applicable).
(c) periods covered. Except (i) as set forth on Schedule 3.6(a), neither the face Company nor the Intermediate Parent on behalf of the Latest Business and the Purchased Assets, have any Liabilities of a type required to be reflected or disclosed on a balance sheet prepared in accordance with GAAP, other than (i) those reflected on the Balance SheetSheet as of the Balance Sheet Date, (ii) for Liabilities those which have been incurred in the ordinary course of business consistent with past practice since the Latest Balance Sheet Date (none of which is a Liability for breach of contract, breach of warranty, tort, infringement or infringement, violation of LawLaw or Legal Proceeding), or (iii) for Liabilities incurred those under (A) Contracts described on Schedule 3.11, or (B) Contracts entered into in connection the ordinary course of business (none of which under (A) or (B) is a Liability resulting from noncompliance with the negotiationany Contract, preparation or execution of this Agreement or any Ancillary Documentsbreach of contract or breach of warranty). The reserves reflected in the Financial Statements are adequate, appropriate and reasonable and have been calculated in a consistent matter. Except as set forth on Schedule 3.6(a), the performance books and records of their respective covenants or agreements the Company have been maintained in this Agreement or any Ancillary Document or the consummation accordance with GAAP and properly reflect all of the transactions contemplated hereby entered into by the Company. There are no qualifications or thereby and (iv) for Liabilities that are not and would not reasonably be expected to becomments from the Intermediate Parent’s or Company’s external auditors on the accuracy, individually fairness or in controls of the aggregate, material Company as it relates to the Group Companies, taken as a whole, no Group Company has any Liabilities of the type required to be set forth on a balance sheet in accordance with GAAPCompany’s financial statements.
(db) The Group Companies have established internal controls of the Seller over financial reporting are effective in providing reasonable assurance regarding the reliability of financial reporting and maintain systems preparation of financial statements and such internal accounting controls are sufficient to (i) ensure that are designed to providethe records accurately and fairly reflect the transactions of the Company, in all material respects, (ii) provide reasonable assurance that (i) all transactions are executed in accordance with management’s authorization and (ii) all transactions are recorded as necessary to permit preparation of proper financial statements, and accurate financial statements that receipts and expenditures of the Company and the Business are being made only in accordance with GAAP authorizations of the directors, managers or officers of the Company, and to maintain accountability for (iii) provide reasonable assurance that unauthorized acquisition, use or disposition of the Group Companies’ assets. The Group Companies maintain andPurchased Assets or the Business, for all periods covered by intentional misconduct and fraud, in each case that could adversely affect its financial statements, is prevented or timely detected.
(c) All accounts and notes receivable of the Financial StatementsCompany or the Business or Purchased Assets (i) are bona fide and valid, have maintained arising from sales actually made or services actually performed, and were incurred in the ordinary course of business, (ii) are properly reflected on the Company’s books and records and balance sheets with regard to the Business and Purchased Assets in accordance with GAAP, (iii) are fully collectable not later than three (3) months following the Closing Date, and (iv) are, except as set forth on Schedule 3.6(c), not subject to any setoffs, counterclaims, discounts, credits or other offsets and are current and collectible and will be collected in accordance with their terms at their recorded amounts within ninety (90) days. Except as set forth on Schedule 3.6(c), no Person has any Encumbrance on any accounts or notes receivable or any part thereof, and no agreement for deduction, free goods or services, discount or other deferred price or quantity adjustment has been made by the Company or with regard to the Business or Purchased Assets with respect to any Accounts Receivable. In the last three (3) years, the Company and the Business has continued all pricing, sales, receivables and payables practices in accordance with its ordinary course of business and have not engaged in (i) any trade loading practices or any other promotional sales or discount activity with any customers or distributors with the intent to accelerate to pre-Closing periods sales to the trade or otherwise that would otherwise be expected (based on past practice) to occur in post-Closing periods, (ii) any practice intended to have the effect of accelerating to pre-Closing periods collections of receivables that would otherwise be expected (based on past practice) to be made in post-Closing periods, or (iii) any practice intended to have the effect of postponing to post-Closing periods payments by the Company or in connection with the Business or the Purchased Assets that would otherwise be expected (based on past practice) to be made in pre-Closing periods.
(d) Schedule 3.6(d) provides: (i) an accurate and complete breakdown and aging of the Group Companies accounts payable of the Company with regard to the Business and the Purchased Assets as of the Balance Sheet Date; (ii) an accurate and complete breakdown of any customer deposits or other deposits held by the Company as of the Balance Sheet Date; and (iii) an accurate and complete breakdown of all notes payable and other Indebtedness of the Company with regard to the Business and the Purchased Assets as of the Balance Sheet Date. Neither the Company, nor the Intermediate Parent on behalf of the Business and the Purchased Assets, has delayed the payment of any of its accounts payable in a manner which is not consistent with historical practices.
(e) All Inventory of Company and the Business consists of a quality and quantity usable and salable in the ordinary course of business consistent with past practice, except for obsolete, damaged or defective items that are accurate have been written off or written down to fair market value or for which adequate reserves have been established on the Balance Sheet. All Inventory contained in the Inventory Statement and complete shown on the Balance Sheet reflects write-downs to realizable values in the case of items which have become obsolete or unsalable (except at prices less than cost) through regular channels in the ordinary course of business consistent with past practice. The Inventory recorded on the Balance Sheet or acquired thereafter reflects items and reflect the revenues, expenses, assets and liabilities quantities of the Group Companies in all material respects.
(e) Except as set forth in Section 3.4(e) Inventory of the Company Disclosure Schedulewith regard to the Business or the Purchased Assets accounted for at the lower of cost or net realizable value and such items and quantities are supported by historical counts. Such Inventories are in compliance with all applicable domestic Laws, since are in material compliance with all applicable foreign Laws, and are in conformity with all applicable product registrations and specifications. The values of the incorporation Inventory contained in the Inventory Statement and shown on the Balance Sheet reflect the normal inventory valuation policies of Company and were determined in accordance with GAAP, the Inventory Statement reflects all of the Inventory of the Business owned by the Company or by the Intermediate Parent on behalf of the Company, no Group Company has received any written complaint, allegation, assertion or claim that there is (i) “significant deficiency” in . The Company’s commitments for the internal controls over financial reporting purchase of the Group Companies, (ii) a “material weakness” in the internal controls over financial reporting of the Group Companies or (iii) fraud, whether or not material, that involves management or other employees of the Group Companies who have a significant role in the internal controls over financial reporting of the Group CompaniesInventory are attached as Schedule 3.6(e)(ii).
Appears in 1 contract
Financial Statements; Undisclosed Liabilities. (a) The Company has made available to HighCape a true and complete copy Parent copies of (i) the audited consolidated balance sheets unaudited financial statements of the Group Companies as of December 31, 2019, Company (including the balance sheet and the related audited consolidated statements of operations and comprehensive lossoperations, convertible preferred stock and stockholders’ deficit and cash flows flows) as of and for the Group Companies for each of the periods then endedyears ended December 31, 2015 and December 31, 2016 and (ii) the unaudited consolidated balance sheets financial statements of the Group Companies Company as of December 31, 2020, and the related unaudited consolidated statements of operations and comprehensive loss, convertible preferred stock and stockholders’ deficit and cash flows of the Group Companies for the twelve (12)-month period then ended9 months ended September 30, and (iii) the unaudited consolidated balance sheets of the Group Companies as of December 31, 2019 and December 31, 2020 2017 (the “Latest Balance SheetSheet Date”) and the related unaudited consolidated statements of operations and comprehensive loss, convertible preferred stock and stockholders’ deficit and cash flows of the Group Companies for each of the periods then ended (clauses (i), (ii), and (iii) are collectively, the “Company Financial Statements”), each of which are attached as Section 3.4(a) of the . The Company Disclosure Schedules. Each of the Financial Statements (A) (including in each case, the notes thereto, if any) (A) was prepared in accordance with GAAP applied on a consistent basis throughout the periods indicated (except as may be indicated in the notes thereto), (B) fairly presentspresent fairly, in all material respects, the combined financial position, position and results of operations and cash flows of the Group Companies Company as at of the date dates thereof and for the period indicated therein, except as otherwise specifically noted thereinperiods covered thereby, and (CB) in the case of the Financial Statements included in clause (iii) only, were have been prepared in accordance with GAAP, consistently applied, subject to normal year-end adjustments (none of which individually or in the standards of the PCAOB, and comply aggregate will be material in all material respects with the applicable accounting requirements and with the rules and regulations of the SEC, the Exchange Act amount) and the Securities Act in effect as absence of footnotes. The Company Financial Statements have been prepared from books and records maintained by the respective dates thereof (including Regulation S-X or Regulation S-K, as applicable)Company.
(b) The audited consolidated balance sheets books of account and other financial records of the Group Companies as Company have been kept accurately in the ordinary course of December 31business consistent with applicable Laws, 2019 and December 31, 2020the transactions entered therein represent bona fide transactions, and the related audited consolidated statements of operations revenues, expenses, assets and comprehensive loss, convertible preferred stock and stockholders’ deficit and cash flows liabilities of the Group Companies for each of the periods then ended (the “Closing Company Audited Financial Statements”), when delivered following the date of this Agreement in accordance with Section 5.17, (i) will be prepared in accordance with GAAP applied on a consistent basis throughout the periods indicated (except as may be indicated in the notes thereto), (ii) will fairly present, have been properly recorded therein in all material respects, . The Company has in place systems and processes reasonably appropriate to a company at the financial position, results same stage of operations and cash flows development as the Company designed to (a) provide reasonable assurances regarding the reliability of the Group Companies as at Company Financial Statements and (b) in a timely manner accumulate and communicate to the date thereof Company’s principal executive officer and for principal financial officer the period indicated thereintype of information that would be required to be disclosed in the Company Financial Statements. Since December 31, except as otherwise specifically noted therein2016, there has been no change in any accounting controls, policies, principles, methods or practices, including any change with respect to reserves (iii) will be audited in accordance with the standards of the PCAOB and will contain an unqualified report whether or bad Debts, contingent liabilities or otherwise), of the Company’s auditors, and (iv) will comply in all material respects with the applicable accounting requirements and with the rules and regulations of the SEC, the Exchange Act and the Securities Act in effect as of the respective dates thereof (including Regulation S-X or Regulation S-K, as applicable).
(c) Except The Company does not have any Liabilities that would be required to be set forth in the liabilities column of a balance sheet prepared in accordance with GAAP, and to the Knowledge of the Company the Company does not have any other Liabilities, except in each case for (i) as set forth Liabilities that are adequately reflected or provided for on or disclosed on the face of the Latest balance sheet dated as of the Balance SheetSheet Date, (ii) for current Liabilities incurred in the ordinary course of business since the Latest Balance Sheet Date (none of which is a Liability for breach of contract, breach of warranty, tort, infringement or violation of Law)Date, (iii) for obligations to be performed under the executory portion of any Contracts (other than obligations due to breaches or non-performance under such Contracts), or (iv) Liabilities incurred under this Agreement or in connection with the negotiation, preparation or execution of this Agreement or any Ancillary Documents, the performance of their respective covenants or agreements in this Agreement or any Ancillary Document or the consummation of the transactions contemplated hereby or thereby and (iv) for Liabilities that are not and would not reasonably be expected to be, individually or in the aggregate, material to the Group Companies, taken as a whole, no Group Company has any Liabilities of the type required to be set forth on a balance sheet in accordance with GAAPhereby.
(d) The Group Companies have established and maintain systems of internal accounting controls that are designed to provide, in all material respects, reasonable assurance that (i) all transactions are executed in accordance with management’s authorization and (ii) all transactions are recorded as necessary to permit preparation of proper and accurate financial statements in accordance with GAAP and to maintain accountability for the Group Companies’ assets. The Group Companies maintain and, for all periods covered by the Financial Statements, have maintained books and records of the Group Companies in the ordinary course of business that are accurate and complete and reflect the revenues, expenses, assets and liabilities of the Group Companies in all material respects.
(e) Except as set forth in Section 3.4(e) of the Company Disclosure Schedule, since the incorporation of the Company, no Group Company has received any written complaint, allegation, assertion or claim that there is (i) “significant deficiency” in the internal controls over financial reporting of the Group Companies, (ii) a “material weakness” in the internal controls over financial reporting of the Group Companies or (iii) fraud, whether or not material, that involves management or other employees of the Group Companies who have a significant role in the internal controls over financial reporting of the Group Companies.
Appears in 1 contract
Sources: Agreement and Plan of Merger (Vir Biotechnology, Inc.)
Financial Statements; Undisclosed Liabilities. (a) The Company has made available to HighCape SPAC a true true, correct and complete copy of (i) the audited consolidated balance sheets sheet of the Group Companies as of December 31June 30, 20192023, June 30, 2022, and the related audited consolidated statements of operations and comprehensive lossoperations, convertible preferred stock and stockholders’ deficit and cash flows and changes of equity of the Group Companies for each of the periods years then ended, together with the auditor’s reports thereon, and (ii) the unaudited consolidated balance sheets sheet of the Group Companies as of December March 31, 20202024, and the related unaudited consolidated statements of operations and comprehensive lossoperations, convertible preferred stock and stockholders’ deficit and cash flows and changes of the Group Companies equity for the twelve (12)-month period then ended, and (iii) the unaudited consolidated balance sheets of the Group Companies as of December nine months ended March 31, 2019 and December 31, 2020 2024 (the “Latest Balance Sheet”) and the related unaudited consolidated statements of operations and comprehensive loss, convertible preferred stock and stockholders’ deficit and cash flows of the Group Companies for each of the periods then ended (clauses (i), (ii), and (iii) are collectively, the “Financial Statements”), each of which are attached as Section 3.4(a5.4(a) of the Company Disclosure SchedulesSchedule. Each of the The Financial Statements (including the notes thereto) (A) was were prepared in accordance with GAAP IFRS applied on a consistent basis throughout the periods indicated (except as may be specifically indicated in the notes thereto), (B) fairly presents, in all material respects, the financial position, results of operations and cash flows of the Group Companies as at the date thereof and for the period indicated therein, except as otherwise specifically noted therein, and (C) in the case of the Financial Statements included in clause (iii) only, were prepared in accordance with the standards of the PCAOB, and comply in all material respects with the applicable accounting requirements and with the rules and regulations of the SEC, the Exchange Act and the Securities Act in effect as of the respective dates thereof (including Regulation S-X or Regulation S-K, as applicable).
(b) The audited consolidated balance sheets of the Group Companies as of December 31, 2019 and December 31, 2020, and the related audited consolidated statements of operations and comprehensive loss, convertible preferred stock and stockholders’ deficit and cash flows of the Group Companies for each of the periods then ended (the “Closing Company Audited Financial Statements”), when delivered following the date of this Agreement in accordance with Section 5.17, (i) will be prepared in accordance with GAAP applied on a consistent basis throughout the periods indicated (except as may be indicated in the notes thereto), (ii) will fairly present, in all material respects, the financial position, results of operations and operations, cash flows and changes of equity of the Group Companies as at the date thereof of their respective dates and for the period respective periods indicated therein, except as otherwise specifically noted therein, and (iiiC) will be audited when delivered by the Company for inclusion in the Registration Statement / Proxy Statement for filing with the SEC following the date of this Agreement in accordance with the standards of the PCAOB and will contain an unqualified report of the Company’s auditorsSection 8.16, and (iv) will comply in all material respects with the applicable accounting requirements and with the rules and regulations of the SEC, the Exchange Act and the Securities Act applicable to a registrant, in effect as of the respective dates thereof (including Regulation S-X or Regulation S-K, as applicable)thereof.
(cb) Except (i) as set forth on to the face of extent reflected or reserved for in the Latest Balance Sheet, (ii) for Liabilities incurred in the ordinary course of business since the date of the Latest Balance Sheet Date (none of which is a Liability for breach of contract, breach of warranty, tort, infringement or violation of Law)Sheet, (iii) for Liabilities reasonably incurred after the Latest Balance Sheet in connection with the negotiation, preparation or execution of this Agreement or any Ancillary Documents, the performance by the Company of their respective its covenants or agreements in this Agreement or any Ancillary Document to which it is or will be a party or the consummation of the transactions contemplated hereby or thereby Transactions, and (iv) for Liabilities that are not and would not reasonably be expected to be, individually or in the aggregate, material to the Group Companies, taken as a whole, no Group Companies has any Liability of any kind. The Company has any Liabilities of the type required to be set forth on a no off-balance sheet in accordance with GAAParrangements.
(dc) The Group Companies have Company has established and maintain maintains systems of internal accounting controls that are designed sufficient to provide, in all material respects, provide reasonable assurance that that: (i) all transactions are executed in accordance with management’s authorization and authorization, (ii) all transactions are recorded as necessary to permit preparation of proper and accurate financial statements in accordance with GAAP IFRS and to maintain accountability for the Group Companies’ assets. The Group Companies maintain and, for all periods covered by and (iii) the Financial StatementsCompany and its Subsidiaries are able to prevent or timely detect unauthorized acquisition, have maintained books and records use or disposition of the Group Companies in the ordinary course of business that are accurate and complete and reflect the revenues, expenses, assets and liabilities of the Group Companies in all Company and its Subsidiaries that could have a material respectseffect on its financial statements.
(ed) Except as set forth in Section 3.4(e) of Since the Company Disclosure ScheduleReference Date, since neither the incorporation Company, nor to the Company’s knowledge, an independent auditor of the Company, no Group Company has received identified any written complaint, allegation, assertion or claim that there is (i) “significant deficiency” in the internal controls over financial reporting of the Group Companies, (ii) a “material weakness” in the internal controls over financial reporting of the Group Companies Companies, or (iii) fraud, whether or not material, that involves management or other employees of the Group Companies who have a significant role in the internal controls over financial reporting of the Group Companies.
(e) Since the Reference Date, (i) no Group Company has received or otherwise had or obtained knowledge of any written complaint, allegation, assertion or claim regarding the accounting or auditing practices, procedures, methodologies or methods of any Group Company or their respective internal accounting controls, including any such written complaint, allegation, assertion or claim that any Group Company has engaged in questionable accounting or auditing practices, and (ii) there have been no internal investigations regarding accounting or revenue recognition discussed with, reviewed by or initiated at the direction of the chief executive officer, chief financial officer, general counsel, the Company Board or any committee thereof.
Appears in 1 contract
Sources: Business Combination Agreement (Arogo Capital Acquisition Corp.)
Financial Statements; Undisclosed Liabilities. (a) Section 3.7(a) of the Disclosure Letter contains the audited financial statements of Seller’s Surgery Segment as of and for the two years ended December 31, 2005 (collectively, the "Audited Financial Statements"). The Company has made available to HighCape a true Audited Financial Statements and complete copy of notes thereto (i) have been prepared from the audited consolidated balance sheets books and records of the Group Companies as of December 31, 2019, and the related audited consolidated statements of operations and comprehensive loss, convertible preferred stock and stockholders’ deficit and cash flows of the Group Companies for each of the periods then endedSeller’s Surgery Segment, (ii) the unaudited consolidated balance sheets of the Group Companies have been prepared in accordance with GAAP, consistently applied (except as of December 31, 2020, and the related unaudited consolidated statements of operations and comprehensive loss, convertible preferred stock and stockholders’ deficit and cash flows of the Group Companies for the twelve (12)-month period then ended, and (iii) the unaudited consolidated balance sheets of the Group Companies as of December 31, 2019 and December 31, 2020 (the “Latest Balance Sheet”) and the related unaudited consolidated statements of operations and comprehensive loss, convertible preferred stock and stockholders’ deficit and cash flows of the Group Companies for each of the periods then ended (clauses (i), (iidisclosed therein), and (iii) are collectively, the “Financial Statements”), each of which are attached as Section 3.4(a) of the Company Disclosure Schedules. Each of the Financial Statements (including the notes thereto) (A) was prepared in accordance with GAAP applied on a consistent basis throughout the periods indicated (except as may be indicated in the notes thereto), (B) fairly presents, present in all material respects, respects the financial position, condition and results of operations and cash flows of Seller’s Surgery Segment as of the Group Companies as at the date dates thereof and for the period indicated therein, except as otherwise specifically noted therein, and (C) in the case of the Financial Statements included in clause (iii) only, were prepared in accordance with the standards of the PCAOB, and comply in all material respects with the applicable accounting requirements and with the rules and regulations of the SEC, the Exchange Act and the Securities Act in effect as of the respective dates thereof (including Regulation S-X or Regulation S-K, as applicable)periods presented.
(b) The audited consolidated balance sheets Section 3.7(b) of the Group Companies Disclosure Letter contains the unaudited pro forma balance sheet and income statement of the Division as of and for the twelve-month period ended December 31, 2019 2006 (the "Year-End Pro Forma Financial Statement"). The Year-End Pro Forma Financial Statement (A) has been prepared from the books and December 31, 2020, records of Seller and the related audited consolidated statements of operations and comprehensive lossDivision, convertible preferred stock and stockholders’ deficit and cash flows (B) has been prepared in the manner set forth in Section 3.7(b) of the Group Companies for each of the periods then ended (the “Closing Company Audited Financial Statements”), when delivered following the date of this Agreement in accordance with Section 5.17Disclosure Letter, (iC) will be prepared in accordance with GAAP applied on a consistent basis throughout the periods indicated (except as may be indicated in the notes thereto), (ii) will fairly present, presents in all material respects, respects the financial positioncondition and results of operations of the Division on the basis of presentation outlined in Section 3.7(b) of the Disclosure Letter, which is intended to present the results of operations and cash flows financial position of the Group Companies as at the date thereof Division being sold by Seller and for the period indicated therein, except as otherwise specifically noted therein, (iii) will be audited in accordance with the standards of the PCAOB and will contain an unqualified report of the Company’s auditorsacquired by Buyer, and (ivD) will comply reflects the results of operations of the Division on a basis consistent with Seller's segment reporting in all material respects its report on Form 10-K for the year ended December 31, 2006, filed with the applicable accounting requirements Securities and with Exchange Commission (the rules and regulations of the SEC, the Exchange Act and the Securities Act in effect as of the respective dates thereof (including Regulation S-X or Regulation S"Form 10-K, as applicable").
(c) Except Section 3.7(c) of the Disclosure Letter contains the unaudited pro forma financial information of the Division as of and for the year ended December 31, 2005 (collectively, the "2005 Pro Forma Financial Information"). The 2005 Pro Forma Financial Information (i) as set forth on has been prepared from the face books and records of Seller and the Latest Balance SheetDivision, (ii) for Liabilities incurred has been prepared in the ordinary course manner set forth in Section 3.7(c)(ii) of business since the Latest Balance Sheet Date (none of which is a Liability for breach of contractDisclosure Letter, breach of warranty, tort, infringement or violation of Law), and (iii) for Liabilities incurred fairly presents in connection with all material respects the negotiation, preparation or execution financial condition and results of this Agreement or any Ancillary Documents, the performance of their respective covenants or agreements in this Agreement or any Ancillary Document or the consummation operations of the transactions contemplated hereby or thereby and (ivDivision on the basis of presentation outlined in Section 3.7(c) for Liabilities that are not and would not reasonably be expected to be, individually or in the aggregate, material to the Group Companies, taken as a whole, no Group Company has any Liabilities of the type required Disclosure Letter, which is intended to be set forth on a balance sheet in accordance with GAAPpresent the results of operations and financial position of the Division being sold by Seller and acquired by Buyer.
(d) The Group Companies have established and maintain systems Section 3.7(d) of internal accounting controls that are designed to provide, in all material respects, reasonable assurance that the Disclosure Letter contains the following reconciliations:
(i) all transactions are executed From the segment financial information presented in accordance Seller's annual report on Form 10-K for the fiscal year ended December 31, 2005, filed with management’s authorization the Securities and Exchange Commission (the "2005 Segment Information") to the 2005 Pro Forma Financial Information;
(ii) all transactions are recorded as necessary From the 2005 Segment Information to permit preparation of proper and accurate financial statements the Audited Financial Statements; and
(iii) From the segment income statement information presented in accordance with GAAP and Seller's Form 10-K (the "Year-End Segment Information") to maintain accountability for the Group Companies’ assetsYear-End Pro Forma Financial Statement. The Group Companies maintain andreconciliations set forth in Section 3.7(d) of the Disclosure Letter have been fairly presented and properly disclose the reconciling items from each of (i) the 2005 Segment Information to the 2005 Pro Forma Financial Information, for all periods covered by (ii) the 2005 Segment Information to the Audited Financial Statements, have maintained books and records of (iii) from the Group Companies in Year-End Segment Information to the ordinary course of business that are accurate and complete and reflect the revenues, expenses, assets and liabilities of the Group Companies in all material respectsYear-End Pro Forma Financial Statement.
(e) Except as set forth in Section 3.4(e3.7(e) of the Company Disclosure ScheduleLetter, since December 31, 2005, except for liabilities and obligations (i) disclosed in the incorporation Audited Financial Statements or the notes thereto, (ii) incurred since December 31, 2005 in the ordinary course of business, consistent with past practice, and that do not materially and adversely impact the Division or (iii) disclosed in Section 3.7(a) of the Disclosure Letter, neither the Company nor any of the Division Subsidiaries, nor, to Seller's Knowledge, any of the Minority Interest Division Entities, has incurred any material liabilities or obligations (whether direct or indirect, accrued, contingent or otherwise and whether or not required to be recorded or reflected on a balance sheet or in the notes thereto prepared in accordance with GAAP).
(f) Except as set forth in Section 3.7(f) of the Disclosure Letter, all accounts receivable of the Company, the Division Subsidiaries and, to Seller's Knowledge, the Minority Interest Division Entities, represent amounts receivable for goods actually delivered or services actually provided (or, in the case of non-trade receivables, represent amounts receivable in respect of other bona fide business transactions) in the ordinary course of business.
(g) The amount of Intercompany Indebtedness as of the Closing Date shall be no Group Company has received less than $80 million, and no repayments other than scheduled amortization of principal and interest or cancellation of debt in connection with the closure of Facilities shall have been made on any written complaintIntercompany Indebtedness since December 31, allegation2006.
(h) The 2006 Audited Financial Statements and the audited combined balance sheets and statements of operations, assertion or claim that there is changes in invested equity and cash flows included in the Required Information delivered pursuant to Section 5.7, (i) “significant deficiency” in shall have been prepared from the internal controls over financial reporting books and records of the Group CompaniesSeller’s Surgery Segment, (ii) a “material weakness” shall have been be prepared in the internal controls over financial reporting of the Group Companies or accordance with GAAP, consistently applied and (iii) fraudshall fairly present in all material respects the financial condition, whether or not materialresults of operations, that involves management or other employees changes in invested equity and cash flow of Seller’s Surgery Division, as the case may be, as of the Group Companies who dates thereof and for the periods presented. The reconciliations to be delivered pursuant to Section 5.7(c) shall have a significant role been fairly presented, shall properly disclose the reconciling items from each of the 2006 Segment Information to the 2006 Audited Financial Statements and shall have been prepared on the same basis as the reconciliations provided pursuant to Section 3.7(d)(ii).
(i) The unaudited balance sheets and statements of operations and cash flows described in part I.B.3 and I.B.4 of Schedule IV and delivered by Seller pursuant to Section 5.7 (i) shall have been prepared from the books and records of Seller and the Division, (ii) shall have been be prepared in accordance with GAAP, consistently applied and (C) shall fairly present in all material respects the financial condition, results of operations, changes in invested equity and cash flow of the Division as of the dates thereof and for the periods presented (except for normal and recurring year-end adjustments).
(j) The unaudited pro forma financial information described in part II of Schedule IV and delivered by Seller pursuant to Section 5.7, (i) shall have been prepared from the books and records of Seller and the Division, (ii) shall have been prepared in the internal controls over financial reporting manner set forth in Section 3.7(c)(ii) of the Group CompaniesDisclosure Letter, and (iii) shall fairly present in all material respects the financial condition and results of operations of the Division on the basis of presentation outlined in Section 3.7(c) of the Disclosure Letter.
Appears in 1 contract
Financial Statements; Undisclosed Liabilities. (a) The Company has made available to HighCape Parent a true and complete copy of (i) the audited consolidated unaudited balance sheets of the Group Companies Company as of December March 31, 2019, 2021 (the “Latest Balance Sheet”) and the related audited consolidated statements of operations and comprehensive loss, convertible preferred stock and stockholders’ deficit and cash flows of the Group Companies for each of the periods then ended, (ii) the unaudited consolidated balance sheets of the Group Companies as of December 31, 2020, and the related unaudited consolidated statements of operations and comprehensive loss, convertible preferred stock and stockholders’ deficit and cash flows of the Group Companies Company for the twelve (12)-month period then endedquarters ending March 31, 2021 and (iii) March 31, 2020 and the unaudited consolidated balance sheets of the Group Companies as of years ended December 31, 2020 and December 31, 2019 and December 31, 2020 (the “Latest Balance Sheet”) and the related unaudited consolidated statements of operations and comprehensive loss, convertible preferred stock and stockholders’ deficit and cash flows of the Group Companies for each of the periods then ended (clauses (i), (ii), and (iii) are collectively, the “Financial Statements”), each of which are attached . Except as set forth in Section 3.4(a3.5(a) of the Company Disclosure Schedules. Each of , the Financial Statements (including the notes thereto) Statements: (A) was were prepared in accordance with GAAP applied on a consistent basis throughout during the periods indicated involved (except as may be indicated in the notes thereto)) and, (B) fairly presents, present in all material respects, respects the financial position, position and results of operations and cash flows of the Group Companies Company as at the date thereof and for the period indicated therein, except as otherwise specifically noted therein, and (C) in the case of the Financial Statements included in clause (iii) only, were prepared in accordance with the standards of the PCAOB, and comply in all material respects with the applicable accounting requirements and with the rules and regulations of the SEC, the Exchange Act and the Securities Act in effect as of the respective dates thereof (including Regulation S-X or Regulation S-K, as applicable).
(b) The audited consolidated balance sheets Each of the Group Companies financial statements or similar reports required to be included in the Registration Statement / Proxy Statement or any other filings to be made by the Company with the SEC in connection with the transactions contemplated by this Agreement or any Transaction Document (the financial statements described in this sentence, which the Parties acknowledge shall, with respect to historical financial statements, solely consist of the audited financial statements as of and for the years ended December 31, 2019 and December 31, 2020, along with unaudited financial statements as of and for the related audited consolidated statements of operations and comprehensive lossapplicable quarterly interim periods thereafter, convertible preferred stock and stockholders’ deficit and cash flows of the Group Companies for each of the periods then ended (the “Closing Company Audited Financial Statements”), ) when delivered following the date of this Agreement in accordance with Section 5.175.16, (i) will fairly present in all material respects the financial position of the Company as at the respective date(s) thereof, and the results of its operations, stockholders’ deficit and cash flows for the respective periods then ended (subject, in the case of any unaudited interim financial statements, to normal year-end audit adjustments (none of which is expected to be material) and the absence of footnotes), (ii) will be prepared in accordance conformity with GAAP applied on a consistent basis throughout during the periods indicated involved (except except, in the case of any audited financial statements, as may be indicated in the notes thereto), (ii) will fairly presentthereto and subject, in all material respectsthe case of any unaudited financial statements, to normal year-end audit adjustments (none of which is expected to be material) and the financial position, results absence of operations and cash flows of the Group Companies as at the date thereof and for the period indicated therein, except as otherwise specifically noted thereinfootnotes), (iii) in the case of any audited financial statements, will be audited in accordance with the standards of the PCAOB and will contain an unqualified report of the Company’s auditors, auditor and (iv) will comply in all material respects with the applicable accounting requirements and with the rules and regulations of the SEC, the Exchange Act and the Securities Act in effect as of the respective dates thereof date of such delivery (including Regulation S-X or Regulation S-K, as applicable).
(c) Except (i) as set forth on the face of the Latest Balance Sheet, (ii) for Liabilities incurred in the ordinary course of business since the date of the Latest Balance Sheet Date (none of which is a Liability for breach of contract, breach of warranty, tort, infringement or violation of Law), (iii) for Liabilities incurred in connection with the negotiation, preparation or execution of this Agreement or any Ancillary DocumentsTransaction Documents to which it is a party, the performance of their respective covenants or agreements in this Agreement or any Ancillary Transaction Document or the consummation of the transactions contemplated hereby or thereby thereby, and (iv) for executory obligations under contracts to which the Company is a party (other than Liabilities that are not and would not reasonably be expected to befor breach thereof), individually or in the aggregate, material to the Group Companies, taken as a whole, no Group Company has any no Liabilities of the type required to be set forth on a balance sheet in accordance with GAAP.
(d) The Group Companies have established and maintain systems of internal accounting controls that are designed to provide, in all material respects, reasonable assurance that (i) all transactions are executed in accordance with management’s authorization and (ii) all transactions are recorded as necessary to permit preparation of proper and accurate financial statements in accordance with GAAP and to maintain accountability for the Group Companies’ assets. The Group Companies maintain and, for all periods covered by the Financial Statements, have maintained books and records of the Group Companies in the ordinary course of business that are accurate and complete and reflect the revenues, expenses, assets and liabilities of the Group Companies in all material respects.
(e) Except as set forth in Section 3.4(e3.5(d) of the Company Disclosure ScheduleSchedules, since the incorporation of the Company, no Group the Company has not received any written complaint, allegation, assertion or claim that there is (i) a “significant deficiency” in the internal controls over financial reporting of the Group CompaniesCompany, (ii) a “material weakness” in the internal controls over financial reporting of the Group Companies Company or (iii) fraud, whether or not material, that involves management or other employees of the Group Companies who Company. Prior to the Closing, the Company will have established and, from the date of such establishment, maintained, a significant role in the system of internal controls over financial reporting sufficient to provide reasonable assurances regarding the reliability of the Group CompaniesCompany’s financial reporting and the preparation of the Company’s financial statements for external purposes in accordance with GAAP.
Appears in 1 contract
Financial Statements; Undisclosed Liabilities. (a) The Company has made available to HighCape BCSA a true and complete copy of (i) the audited unaudited, consolidated balance sheets of the Group Companies Company and its Subsidiaries as of December 31, 20192022 and 2023, and the related audited unaudited, consolidated statements of operations and comprehensive loss, convertible preferred stock and stockholders’ deficit loss and cash flows of the Group Companies Company and its Subsidiaries for each of the periods then ended, (ii) the unaudited consolidated balance sheets of the Group Companies as of 12 months ended December 31, 2020, 2022 and the related unaudited consolidated statements of operations and comprehensive loss, convertible preferred stock and stockholders’ deficit and cash flows of the Group Companies for the twelve 2023 (12)-month period then ended, and (iii) the unaudited consolidated balance sheets of the Group Companies as of December 31, 2019 and December 31, 2020 (the “Latest Balance Sheet”) and the related unaudited consolidated statements of operations and comprehensive loss, convertible preferred stock and stockholders’ deficit and cash flows of the Group Companies for each of the periods then ended (clauses (i), (ii), and (iii) are collectively, the “Financial Statements”), each of which . The Financial Statements are attached as Section 3.4(a) of the Company Disclosure Schedules. Each of the The Financial Statements (including the notes thereto, if applicable) (Aa) was were derived from the books and records of the Group Companies, and (b) fairly present, in all material respects, the financial position, results of operations, and cash flows of the Company for the periods indicated therein.
(b) The Closing Company Audited Financial Statements and any other Closing Company Financial Statements will be derived from the books and records of the Group Companies. The Closing Company Financial Statements will (i) be prepared in accordance with GAAP applied on a consistent basis throughout the periods indicated (except except, in the case of any audited financial statements, as may be specifically indicated in the notes thereto and subject, in the case of any unaudited financial statements, to normal year-end audit adjustments (none of which is expected to be individually or in the aggregate material) and the absence of notes thereto), (B) fairly presents, in all material respects, the financial position, results of operations and cash flows of the Group Companies as at the date thereof and for the period indicated therein, except as otherwise specifically noted therein, and (Cii) in the case of the Financial Statements included in clause (iii) onlyany audited financial statements, were prepared be audited in accordance with the standards of the PCAOB, PCAOB and to contain a report of the Company’s auditor and (iii) comply in all material respects with the applicable accounting requirements and with the rules and regulations of the SEC, the Exchange Act and the Securities Act in effect as of the respective dates thereof of delivery (including Regulation S-X or Regulation S-K, as applicable).
(b) The audited . No financial statements other than those consolidated balance sheets financial statements of the Group Companies as of December 31, 2019 and December 31, 2020, and are required by GAAP to be included in the related audited consolidated statements of operations and comprehensive loss, convertible preferred stock and stockholders’ deficit and cash flows of the Group Companies for each of the periods then ended (the “Closing Company Audited Financial Statements”), when delivered following the date of this Agreement in accordance with Section 5.17, (i) will be prepared in accordance with GAAP applied on a consistent basis throughout the periods indicated (except as may be indicated in the notes thereto), (ii) will fairly present, in all material respects, the financial position, results of operations and cash flows of the Group Companies as at the date thereof and for the period indicated therein, except as otherwise specifically noted therein, (iii) will be audited in accordance with the standards of the PCAOB and will contain an unqualified report of the Company’s auditors, and (iv) will comply in all material respects with the applicable accounting requirements and with the rules and regulations of the SEC, the Exchange Act and the Securities Act in effect as of the respective dates thereof (including Regulation S-X or Regulation S-K, as applicable).
(c) Except The Group Companies have no Liabilities except (i) as set forth on the face of the Latest Balance Sheet, (ii) for Liabilities incurred in the ordinary course of business since the date of the Latest Balance Sheet Date (none of which is excluding any Liabilities for a Liability for breach of contractContract, breach of warranty, tort, tort (including infringement of Intellectual Property Rights) or violation of Law), (iii) for Liabilities incurred in connection with the negotiation, preparation or execution of this Agreement or any Ancillary Documents, the performance by the Company of their respective its covenants or agreements in this Agreement or any Ancillary Document to which it is or will be a party or the consummation of the transactions contemplated hereby or thereby and Transactions (including, for the avoidance of doubt, the Company Expenses), (iv) executory obligations under Contracts (excluding any Liabilities for a breach of Contract), (v) for Liabilities that are not and would not reasonably be expected to behave, individually or in the aggregate, material to the Group Companies, taken as a whole, no Group Company has any Material Adverse Effect or (vi) Liabilities that are disclosed in Section 3.4(c) of the type required to be set forth on a balance sheet in accordance with GAAPCompany Disclosure Schedules.
(d) The Group Companies have established and maintain maintained, individually or at a group level, systems of internal accounting controls that are designed to provide, in all material respects, reasonable assurance that (i) all transactions are executed in accordance with management’s authorization and (ii) all transactions are recorded as necessary to permit preparation of proper and accurate financial statements in accordance with GAAP and to maintain accountability for the Group Companies’ assets. The Group Companies maintain and, for all periods covered by the Financial Statements, have maintained maintained, books and records of the Group Companies in the ordinary course of business that are accurate and complete in all material respects and reflect reflect, in reasonable detail, the revenues, expenses, assets and liabilities of the Group Companies in all material respects.
(e) Except as set forth in Section 3.4(e) of the Company Disclosure Schedule, since the incorporation of the Company, no Group The Company has not received any written complaint, allegation, assertion or claim that there is (i) a “significant deficiency” in the internal controls over financial reporting of the Group Companies, (ii) a “material weakness” in the internal controls over financial reporting of the Group Companies or (iii) fraud, whether or not material, that involves management or other employees of the Group Companies who have a significant role in the internal controls over financial reporting of the Group Companies.
Appears in 1 contract
Sources: Business Combination Agreement (Blockchain Coinvestors Acquisition Corp. I)
Financial Statements; Undisclosed Liabilities. (aSection 7E(a) The of the Company has made available to HighCape a Disclosure Letter sets forth true and complete copy copies of the following financial statements: (i) the audited consolidated balance sheets sheet of the Group Companies Company and its Subsidiaries as of December 31, 20192020, 2019 and 2018 and the related audited consolidated statements of operations and comprehensive lossincome, convertible preferred stock and stockholders’ deficit equity and cash flows of the Group Companies Company and its Subsidiaries for each of the periods fiscal period then endedended (the “Audited Financial Statements”), and (ii) the unaudited consolidated balance sheets sheet of the Group Companies Company and its Subsidiaries as of December 31June 30, 2020, and the related unaudited consolidated statements of operations and comprehensive loss, convertible preferred stock and stockholders’ deficit and cash flows of the Group Companies for the twelve (12)-month period then ended, and (iii) the unaudited consolidated balance sheets of the Group Companies as of December 31, 2019 and December 31, 2020 2021 (the “Latest Balance Sheet”) and the related unaudited consolidated statements of operations and comprehensive loss, convertible preferred stock and stockholders’ deficit income and cash flows of the Group Companies Company and its Subsidiaries for each of the periods six-month period then ended (clauses (i), (ii), the “Interim Financial Statements” and (iii) are collectivelytogether with the Audited Financial Statements and the Pre-Closing Financial Statements, the “Financial Statements”), each of which are attached as Section 3.4(a) of the Company Disclosure Schedules. Each of the The Financial Statements (including the notes theretoi) (A) was have been prepared in accordance with GAAP applied on a consistent basis throughout the periods indicated (except as may be indicated in the notes thereto)thereto and subject, (B) fairly presents, in all material respects, the financial position, results of operations and cash flows of the Group Companies as at the date thereof and for the period indicated therein, except as otherwise specifically noted therein, and (C) in the case of the Interim Financial Statements included in clause (iii) onlyand the Pre-Closing Financial Statements, were prepared in accordance with to the standards lack of the PCAOB, footnote disclosure and comply in all material respects with the applicable accounting requirements and with the rules and regulations of the SECchanges resulting from year-end adjustments, the Exchange Act and the Securities Act in effect as effects of the respective dates thereof (including Regulation S-X or Regulation S-K, as applicable).
(b) The audited consolidated balance sheets of the Group Companies as of December 31, 2019 and December 31, 2020, and the related audited consolidated statements of operations and comprehensive loss, convertible preferred stock and stockholders’ deficit and cash flows of the Group Companies for each of the periods then ended (the “Closing Company Audited Financial Statements”), when delivered following the date of this Agreement in accordance with Section 5.17, (i) will be prepared in accordance with GAAP applied on a consistent basis throughout the periods indicated (except as may be indicated in the notes thereto), (ii) will fairly present, in all material respects, the financial position, results of operations and cash flows of the Group Companies as at the date thereof and for the period indicated therein, except as otherwise specifically noted therein, (iii) will be audited in accordance with the standards of the PCAOB and will contain an unqualified report of the Company’s auditors, and (iv) will comply in all material respects with the applicable accounting requirements and with the rules and regulations of the SEC, the Exchange Act and the Securities Act in effect as of the respective dates thereof (including Regulation S-X or Regulation S-K, as applicable).
(c) Except (i) as set forth on the face of the Latest Balance Sheet, (ii) for Liabilities incurred in the ordinary course of business since the Latest Balance Sheet Date (none of which is a Liability for breach of contract, breach of warranty, tort, infringement or violation of Law), (iii) for Liabilities incurred in connection with the negotiation, preparation or execution of this Agreement or any Ancillary Documents, the performance of their respective covenants or agreements in this Agreement or any Ancillary Document or the consummation of the transactions contemplated hereby or thereby and (iv) for Liabilities that are not and would not reasonably be expected to beexpected, individually or in the aggregate, material to the Group Companies, taken as a whole, no Group Company has any Liabilities of the type required to be set forth on a balance sheet in accordance with GAAP.
(dmaterial) The Group Companies have established and maintain systems of internal accounting controls that are designed to provide, present fairly in all material respectsrespects the financial position of the Company and its Subsidiaries as of the dates referred to for such financial statements, reasonable assurance that (i) all transactions are executed in accordance with management’s authorization and the consolidated results of their operations for the periods referred to therein, and (ii) all transactions are recorded as necessary to permit preparation of proper and accurate financial statements in accordance consistent with GAAP and to maintain accountability for the Group Companies’ assets. The Group Companies maintain and, for all periods covered by the Financial Statements, have maintained books and records of the Group Companies in the ordinary course of business that are accurate and complete and reflect the revenues, expenses, assets and liabilities of the Group Companies in all material respectsCompany.
(e) Except as set forth in Section 3.4(e) of the Company Disclosure Schedule, since the incorporation of the Company, no Group Company has received any written complaint, allegation, assertion or claim that there is (i) “significant deficiency” in the internal controls over financial reporting of the Group Companies, (ii) a “material weakness” in the internal controls over financial reporting of the Group Companies or (iii) fraud, whether or not material, that involves management or other employees of the Group Companies who have a significant role in the internal controls over financial reporting of the Group Companies.
Appears in 1 contract
Sources: Purchase Agreement and Agreement and Plan of Merger (Evolent Health, Inc.)
Financial Statements; Undisclosed Liabilities. (a) The Company has made available to HighCape a true and complete copy of (i) Attached hereto as Schedule 4(f)(i) are the audited consolidated balance sheets following financial statements of the Group Companies Company: (A) the reviewed balance sheet and statements of income and members’ equity, and cash flows as of and for the fiscal years ended December 31, 20192018, and the related audited consolidated statements of operations and comprehensive loss, convertible preferred stock and stockholders’ deficit and cash flows of the Group Companies for each of the periods then ended, (ii) the unaudited consolidated balance sheets of the Group Companies as of December 31, 2020, and the related unaudited consolidated statements of operations and comprehensive loss, convertible preferred stock and stockholders’ deficit and cash flows of the Group Companies for the twelve (12)-month period then ended, and (iii) the unaudited consolidated balance sheets of the Group Companies as of December 31, 2019 and December 31, 2020 (collectively, the “Latest Year-End Financial Statements”); and (B) the internally-prepared, unreviewed, unaudited balance sheet, income statement and statement of cash flows as of and for the three-month period ended March 31, 2021 (such date, the “Most Recent Balance Sheet Date”, such balance sheet, the “Most Recent Balance Sheet”) and the related unaudited consolidated statements of operations and comprehensive loss, convertible preferred stock and stockholders’ deficit and cash flows of the Group Companies for each of the periods then ended (clauses (i), (ii), and (iii) are such balance sheet and statement, collectively, the “Most Recent Financial Statements” and, together with the Year-End Financial Statements, collectively, the “Financial Statements”), each of which are attached as Section 3.4(a) of the Company Disclosure Schedules. Each of the The Financial Statements (including the notes thereto, as applicable) (A) was prepared are complete and correct in all material respects, and fairly present in all material respects the financial condition and results of operations of the Company as of such dates and for such periods, in each case in accordance with GAAP (as in effect as of the dates such Financial Statements were prepared, applied on a consistent basis throughout the periods indicated Financial Statements), provided that the Most Recent Financial Statements do not include a statement of members’ equity, are subject to normal year-end adjustments and lack notes and other presentation items.
(ii) The Company does not have any Liabilities or commitments of a nature that would be required to be reflected on a balance sheet prepared in accordance with GAAP (as in effect as of the Most Recent Balance Sheet Date), except as may be indicated in (A) those that are adequately reflected or reserved against on the notes thereto)Most Recent Balance Sheet, (B) fairly presentsthose that have been incurred in the Ordinary Course of Business since the Most Recent Balance Sheet Date and which do not exceed, in all material respectsthe aggregate, the financial position, results of operations and cash flows of the Group Companies as at the date thereof and for the period indicated therein, except as otherwise specifically noted therein$100,000, and (C) in the case of the Financial Statements included in clause (iii) only, were prepared in accordance with the standards of the PCAOB, and comply in all material respects with the applicable accounting requirements and with the rules and regulations of the SEC, the Exchange Act and the Securities Act in effect as of the respective dates thereof (including Regulation SCompany Transaction Expenses. The Company does not have any off-X or Regulation S-K, as applicable).
(b) The audited consolidated balance sheets of the Group Companies as of December 31, 2019 and December 31, 2020, and the related audited consolidated statements of operations and comprehensive loss, convertible preferred stock and stockholders’ deficit and cash flows of the Group Companies for each of the periods then ended (the “Closing Company Audited Financial Statements”), when delivered following the date of this Agreement in accordance with Section 5.17, (i) will be prepared in accordance with GAAP applied on a consistent basis throughout the periods indicated (except as may be indicated in the notes thereto), (ii) will fairly present, in all material respects, the financial position, results of operations and cash flows of the Group Companies as at the date thereof and for the period indicated therein, except as otherwise specifically noted therein, (iii) will be audited in accordance with the standards of the PCAOB and will contain an unqualified report of the Company’s auditors, and (iv) will comply in all material respects with the applicable accounting requirements and with the rules and regulations of the SEC, the Exchange Act and the Securities Act in effect as of the respective dates thereof (including Regulation S-X or Regulation S-K, as applicable).
(c) Except (i) as set forth on the face of the Latest Balance Sheet, (ii) for Liabilities incurred in the ordinary course of business since the Latest Balance Sheet Date (none of which is a Liability for breach of contract, breach of warranty, tort, infringement or violation of Law), (iii) for Liabilities incurred in connection with the negotiation, preparation or execution of this Agreement or any Ancillary Documents, the performance of their respective covenants or agreements in this Agreement or any Ancillary Document or the consummation of the transactions contemplated hereby or thereby and (iv) for Liabilities that are not and would not reasonably be expected to be, individually or in the aggregate, material to the Group Companies, taken as a whole, no Group Company has any Liabilities of the type required to be set forth on a balance sheet in accordance with GAAPLiabilities.
(d) The Group Companies have established and maintain systems of internal accounting controls that are designed to provide, in all material respects, reasonable assurance that (i) all transactions are executed in accordance with management’s authorization and (ii) all transactions are recorded as necessary to permit preparation of proper and accurate financial statements in accordance with GAAP and to maintain accountability for the Group Companies’ assets. The Group Companies maintain and, for all periods covered by the Financial Statements, have maintained books and records of the Group Companies in the ordinary course of business that are accurate and complete and reflect the revenues, expenses, assets and liabilities of the Group Companies in all material respects.
(e) Except as set forth in Section 3.4(e) of the Company Disclosure Schedule, since the incorporation of the Company, no Group Company has received any written complaint, allegation, assertion or claim that there is (i) “significant deficiency” in the internal controls over financial reporting of the Group Companies, (ii) a “material weakness” in the internal controls over financial reporting of the Group Companies or (iii) fraud, whether or not material, that involves management or other employees of the Group Companies who have a significant role in the internal controls over financial reporting of the Group Companies.
Appears in 1 contract
Sources: Membership Interest Purchase Agreement (XL Fleet Corp.)
Financial Statements; Undisclosed Liabilities. (a) The Company has made available to HighCape a true and complete copy of (i) the audited consolidated balance sheets financial statements of the Group Companies Bank and its Subsidiaries (including any related notes and schedules thereto) included in the Bank Reports complied as to form, as of December 31their respective dates of filing with or furnishing to the OTS (or, 2019if amended or superseded by a subsequent filing prior to the date hereof, and the related audited consolidated statements of operations and comprehensive loss, convertible preferred stock and stockholders’ deficit and cash flows as of the Group Companies for each date of such subsequent filing), in all material respects, with all applicable accounting requirements and with the published rules and regulations of the periods then endedOTS with respect thereto (except, (ii) in the case of unaudited consolidated balance sheets statements, as permitted by Form 10-Q of the Group Companies as of December 31, 2020, and the related unaudited consolidated statements of operations and comprehensive loss, convertible preferred stock and stockholders’ deficit and cash flows of the Group Companies for the twelve (12)-month period then ended, and (iii) the unaudited consolidated balance sheets of the Group Companies as of December 31, 2019 and December 31, 2020 (the “Latest Balance Sheet”) and the related unaudited consolidated statements of operations and comprehensive loss, convertible preferred stock and stockholders’ deficit and cash flows of the Group Companies for each of the periods then ended (clauses (iOTS), (ii), and (iii) are collectively, the “Financial Statements”), each of which are attached as Section 3.4(a) of the Company Disclosure Schedules. Each of the Financial Statements (including the notes thereto) (A) was were prepared in accordance with GAAP applied on a consistent basis throughout during the periods indicated involved (except as may be indicated in the notes theretodisclosed therein), (B) fairly presentspresent, in all material respects, the consolidated financial position, position of the Bank and its Subsidiaries and the consolidated results of operations operations, changes in stockholders’ equity and cash flows of such companies as of the Group Companies as at the date thereof dates and for the period indicated thereinperiods shown (subject, except as otherwise specifically noted therein, and (C) in the case of unaudited statements, to normal year-end audit adjustments, none of which is expected to be material, and to any other adjustments described therein, including the Financial Statements included in clause (iii) onlynotes thereto), were and have been prepared from, and are in accordance with with, the standards books and records of the PCAOBBank and its Subsidiaries. The books and records of the Bank and its Subsidiaries have been, and comply are being, maintained in all material respects in accordance with the GAAP and any other applicable legal and accounting requirements and reflect only actual transactions. Ernst & Young LLP has not resigned or been dismissed as independent public accountants of the Bank as a result of or in connection with any disagreements with the rules and regulations Bank on a matter of the SECaccounting principles or practices, the Exchange Act and the Securities Act in effect as of the respective dates thereof (including Regulation S-X financial statement disclosure or Regulation S-K, as applicable)auditing scope or procedure.
(b) The audited Section 4.5(b) of the Bank Disclosure Schedule sets forth the unaudited pro forma consolidated balance sheets sheet for the Bank and its Subsidiaries giving effect to the disposition of certain of the Group Companies Excluded Assets, together with a calculation of Tangible Common Equity giving effect to the disposition of the Excluded Assets, in each case as of December 31the fiscal year ended September 30, 2019 and December 31, 2020, and the related audited consolidated statements of operations and comprehensive loss, convertible preferred stock and stockholders’ deficit and cash flows of the Group Companies for each of the periods then ended 2008 (the “Closing Company Audited Pro Forma Financial Statements”). The Pro Forma Financial Statements were prepared in good faith, when delivered following fairly present, in all material respects, the date consolidated financial position of this Agreement the Bank and its Subsidiaries, collectively giving effect to the disposition of the Excluded Assets, as of the dates shown (subject to normal year-end audit adjustments and the absence of footnotes, none of which is expected to be material, and to any other adjustment described therein), and have been prepared from, and are in accordance with Section 5.17with, (i) the books and records of the Bank and its Subsidiaries. The Audited Financial Statements will be prepared in accordance with GAAP applied on a consistent basis throughout during the periods indicated involved (except as may be indicated in the notes theretodisclosed therein), (ii) will fairly present, in all material respects, the consolidated financial positionposition of the Bank and its Subsidiaries, giving effect to the disposition of the Excluded Assets, and the consolidated results of operations operations, changes in stockholders’ equity and cash flows of such companies as of the Group Companies as at the date thereof dates and for the period indicated periods shown (subject to any other adjustment described therein, except as otherwise specifically noted thereinincluding the notes thereto), (iii) and will be audited prepared from, and be in accordance with with, the standards books and records of the PCAOB Bank and will contain an unqualified report of the Company’s auditors, and (iv) will comply in all material respects with the applicable accounting requirements and with the rules and regulations of the SEC, the Exchange Act and the Securities Act in effect as of the respective dates thereof (including Regulation S-X or Regulation S-K, as applicable)its Subsidiaries.
(c) Except for (i) as set forth on those liabilities that are fully reflected or reserved for in the face consolidated balance sheet of the Latest Balance SheetBank included in its Quarterly Report on Form 10-Q for the fiscal quarter ended June 30, 2008, as filed with the OTS, (ii) for Liabilities this Agreement or (iii) liabilities incurred since June 30, 2008 in the ordinary course of business since consistent with past practice, neither the Latest Balance Sheet Date Bank nor any of its Subsidiaries has incurred any liability of any nature whatsoever (none whether absolute, accrued or contingent or otherwise and whether due or to become due) that either alone or when combined with all other liabilities of which is a Liability for breach of contract, breach of warranty, tort, infringement or violation of Lawtype not described in clause (i), (ii) or (iii) for Liabilities incurred in connection with has had, or would be reasonably expected to have, a Material Adverse Effect on the negotiationBank.
(d) The records, preparation or execution of this Agreement or any Ancillary Documentssystems, the performance of their respective covenants or agreements in this Agreement or any Ancillary Document or the consummation controls, data and information of the transactions contemplated hereby or thereby Bank and (iv) for Liabilities its Subsidiaries are recorded, stored, maintained and operated under means that are not under the exclusive ownership and direct control of the Bank or its Subsidiaries or accountants (including all means of access thereto and therefrom), except for any non-exclusive ownership and non- direct control that would not reasonably be expected to be, individually or in have a material adverse effect on the aggregate, material to the Group Companies, taken as a whole, no Group Company has any Liabilities of the type required to be set forth on a balance sheet in accordance with GAAP.
(d) The Group Companies have established and maintain systems system of internal accounting controls described below in this Section 4.5(d). The Bank (x) has implemented and maintains disclosure controls and procedures (as defined in Rule 13a-15(e) of the Exchange Act) to ensure that are designed material information relating to providethe Bank, in all material respectsincluding its consolidated Subsidiaries, reasonable assurance that is made known to the chief executive officer and the chief financial officer of the Bank by others within those entities, and (y) has disclosed, based on its most recent evaluation prior to the date hereof, to the Bank’s outside auditors and the audit committee of the Bank’s Board of Directors (i) all transactions are executed in accordance with management’s authorization any significant deficiencies and (ii) all transactions are recorded as necessary to permit preparation of proper and accurate financial statements in accordance with GAAP and to maintain accountability for the Group Companies’ assets. The Group Companies maintain and, for all periods covered by the Financial Statements, have maintained books and records of the Group Companies material weaknesses in the ordinary course design or operation of business that are accurate and complete and reflect the revenues, expenses, assets and liabilities of the Group Companies in all material respects.
(e) Except as set forth in Section 3.4(e) of the Company Disclosure Schedule, since the incorporation of the Company, no Group Company has received any written complaint, allegation, assertion or claim that there is (i) “significant deficiency” in the internal controls over financial reporting (as defined in Rule 13a-15(f) of the Group CompaniesExchange Act) which are reasonably likely to adversely affect the Bank’s ability to record, process, summarize and report financial information and (ii) a “material weakness” in the internal controls over financial reporting of the Group Companies or (iii) any fraud, whether or not material, that involves management or other employees of the Group Companies who have a significant role in the Bank’s internal controls over financial reporting reporting. These disclosures were made in writing by management to the Bank’s auditors and audit committee. As of the Group Companiesdate hereof, there is no reason to believe that the Bank’s outside auditors, chief executive officer and chief financial officer will not be able to give the certifications and attestations required pursuant to the rules and regulations adopted pursuant to Section 404 of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002 (the “▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act”), without qualification, when next due.
Appears in 1 contract
Sources: Stock Purchase Agreement (Capital One Financial Corp)
Financial Statements; Undisclosed Liabilities. (a) The Company has made available to HighCape ARYA a true and complete copy of (i) the audited consolidated balance sheets sheet of the Group Companies as of December 31, 2019, 2017 and the related audited consolidated statements of operations income and comprehensive losscash flows of the Group Companies for the year then ended and (ii) the most recent draft of the unaudited consolidated balance sheet of the Group Companies as of December 31, convertible preferred stock 2018 and stockholders’ deficit December 31, 2019 (the “Latest Balance Sheet Date”) and the related unaudited consolidated statements of income and cash flows of the Group Companies for each of the periods then ended, (ii) the unaudited consolidated balance sheets of the Group Companies as of December 31, 2020, and the related unaudited consolidated statements of operations and comprehensive loss, convertible preferred stock and stockholders’ deficit and cash flows of the Group Companies for the twelve (12)-month period then ended, and (iii) the unaudited consolidated balance sheets of the Group Companies as of December 31, 2019 and December 31, 2020 (the “Latest Balance Sheet”) and the related unaudited consolidated statements of operations and comprehensive loss, convertible preferred stock and stockholders’ deficit and cash flows of the Group Companies for each of the periods years then ended (clauses (i), ) and (ii), and (iii) are collectively, the “Financial Statements”), each of which are attached as Section 3.4(a) of the Company Disclosure SchedulesSchedule and, in the case of clause (i), contains an unqualified report of the Company’s auditors. Each of the Financial Statements (including the notes thereto) (A) was prepared in accordance with GAAP International Financial Reporting Standards (“IFRS”) applied on a consistent basis throughout the periods indicated (except as may be indicated in the notes thereto), ) and (B) fairly presents, in all material respects, the financial position, results of operations and cash flows of the Group Companies as at the date thereof and for the period indicated therein, except as otherwise specifically noted therein, and (C) in the case of the Financial Statements included in clause (iii) only, were prepared in accordance with the standards of the PCAOB, and comply in all material respects with the applicable accounting requirements and with the rules and regulations of the SEC, the Exchange Act and the Securities Act in effect as of the respective dates thereof (including Regulation S-X or Regulation S-K, as applicable).
(bA) The audited consolidated balance sheets of the Group Companies as of December 31, 2019 and December 31, 2020, 2018 and the related audited consolidated statements of operations and comprehensive loss, convertible preferred stock and stockholders’ deficit income and cash flows of the Group Companies for each of the periods years then ended (the “Closing Company Audited Financial Statements”), when delivered following the date of this Agreement in accordance with Section 5.176.15, (i) will be prepared in accordance with GAAP IFRS applied on a consistent basis throughout the periods indicated (except as may be indicated in the notes thereto), (ii) will fairly present, in all material respects, the financial position, results of operations and cash flows of the Group Companies as at the date thereof and for the period indicated therein, except as otherwise specifically noted therein, (iii) will be have been audited in accordance with the standards of the PCAOB and (iv) will contain an unqualified report of the Company’s auditors, and (iv) will comply in all material respects with the applicable accounting requirements and with the rules and regulations of the SEC, the Exchange Act and the Securities Act in effect as of the respective dates thereof (including Regulation S-X or Regulation S-K, as applicable).
(c) Except (i) as set forth on the face of the Latest Balance Sheet, (ii) for Liabilities incurred in the ordinary course of business since the date of the Latest Balance Sheet Date (none of which is a Liability for breach of contract, breach of warranty, tort, infringement or violation of Law), (iii) for Liabilities incurred in connection with the negotiation, preparation or execution of this Agreement or any Ancillary Documents, the performance of their respective covenants or agreements in this Agreement or any Ancillary Document or the consummation of the transactions contemplated hereby or thereby and (iv) for Liabilities that are not and would not reasonably be expected to be, individually or in the aggregate, material to the Group Companies, taken as a whole, no Group Company has any Liabilities of the type required to be set forth on a balance sheet in accordance with GAAPLiabilities.
(d) The Group Companies have established and maintain systems of internal accounting controls that are designed to provideSince January 1, in all material respects, reasonable assurance that (i) all transactions are executed in accordance with management’s authorization and (ii) all transactions are recorded as necessary to permit preparation of proper and accurate financial statements in accordance with GAAP and to maintain accountability for the Group Companies’ assets. The Group Companies maintain and, for all periods covered by the Financial Statements, have maintained books and records of the Group Companies in the ordinary course of business that are accurate and complete and reflect the revenues, expenses, assets and liabilities of the Group Companies in all material respects.
(e) Except as set forth in Section 3.4(e) of the Company Disclosure Schedule, since the incorporation of the Company2018, no Group Company has received any written complaint, allegation, assertion or claim that there is (iA) “significant deficiency” in the internal controls over financial reporting of the Group CompaniesCompanies to the Company’s knowledge, (iiB) a “material weakness” in the internal controls over financial reporting of the Group Companies to the Company’s knowledge or (iiiC) fraud, whether or not material, that involves management or other employees of the Group Companies who have a significant role in the internal controls over financial reporting of the Group Companies.
Appears in 1 contract
Sources: Business Combination Agreement (Arya Sciences Acquisition Corp.)
Financial Statements; Undisclosed Liabilities. (aAttached to Section 3.7(a) The of the Company has made available to HighCape a Disclosure Schedule are the true and complete copy copies of the (i) unaudited annual financial statements consisting of (A) the audited consolidated unaudited annual balance sheets of the Group Companies Company as of December 31, 2019, 2013 (the “Most Recent Annual Financial Statements Date”) and the related audited consolidated statements of operations and comprehensive loss, convertible preferred stock and stockholders’ deficit and cash flows of the Group Companies for each of the periods then ended, (ii) the unaudited consolidated balance sheets of the Group Companies as of December 31, 20202012, and the related unaudited consolidated annual statements of operations and comprehensive loss, convertible preferred stock and stockholders’ deficit income and cash flows for each of the Group Companies for fiscal years then ended (including in each case the twelve notes or other supplementary information thereto) (12)-month period then endedcollectively, the “Annual Financial Statements”) and (iiiii)(A) the unaudited consolidated balance sheets sheet of the Group Companies as of December 31, 2019 and December 31, 2020 Company (the “Latest Balance Sheet”) as of October 31, 2014 (such date, the “Balance Sheet Date”) and (B) the related unaudited and consolidated statements of operations and comprehensive loss, convertible preferred stock and stockholders’ deficit income and cash flows of for the Group Companies for each of the periods ten month period then ended (clauses (i), (ii), the “Unaudited Financial Statements,” and (iii) are collectivelytogether with the Annual Financial Statements, the “Financial Statements”), each of which are attached as Section 3.4(a) of the Company Disclosure Schedules. Each All of the Financial Statements (including the notes theretox) (A) was have been prepared in accordance with GAAP applied by the Company on a consistent basis throughout the periods indicated covered (except as may provided, however, that the Unaudited Financial Statements are subject to normal and recurring year-end adjustments (which adjustments will not be indicated material individually or in the notes theretoaggregate)), (By) fairly presents, present in all material respects, respects the financial position, condition of the Company as of the respective dates therein indicated and the results of operations and cash flows of the Group Companies as at the date thereof and Company for the period indicated therein, except as otherwise specifically noted therein, respective periods therein specified and (Cz) in the case of the Financial Statements included in clause (iii) only, were have been prepared from and are consistent and in accordance with the standards of the PCAOB, and comply in all material respects with the applicable accounting requirements and with the rules and regulations of the SEC, the Exchange Act and the Securities Act in effect as of the respective dates thereof (including Regulation S-X or Regulation S-K, as applicable).
(b) The audited consolidated balance sheets of the Group Companies as of December 31, 2019 and December 31, 2020, and the related audited consolidated statements of operations and comprehensive loss, convertible preferred stock and stockholders’ deficit and cash flows of the Group Companies for each of the periods then ended (the “Closing Company Audited Financial Statements”), when delivered following the date of this Agreement in accordance with Section 5.17, (i) will be prepared in accordance with GAAP applied on a consistent basis throughout the periods indicated (except as may be indicated in the notes thereto), (ii) will fairly present, in all material respects, the financial position, results of operations and cash flows of the Group Companies as at the date thereof and for the period indicated therein, except as otherwise specifically noted therein, (iii) will be audited in accordance with the standards of the PCAOB and will contain an unqualified report of the Company’s auditors, and (iv) will comply in all material respects with the applicable accounting requirements and with the rules and regulations of the SEC, the Exchange Act and the Securities Act in effect as of the respective dates thereof (including Regulation S-X or Regulation S-K, as applicable).
(c) Except (i) as set forth on the face of the Latest Balance Sheet, (ii) for Liabilities incurred in the ordinary course of business since the Latest Balance Sheet Date (none of which is a Liability for breach of contract, breach of warranty, tort, infringement or violation of Law), (iii) for Liabilities incurred in connection with the negotiation, preparation or execution of this Agreement or any Ancillary Documents, the performance of their respective covenants or agreements in this Agreement or any Ancillary Document or the consummation of the transactions contemplated hereby or thereby and (iv) for Liabilities that are not and would not reasonably be expected to be, individually or in the aggregate, material to the Group Companies, taken as a whole, no Group Company has any Liabilities of the type required to be set forth on a balance sheet in accordance with GAAP.
(d) The Group Companies have established and maintain systems of internal accounting controls that are designed to provide, in all material respects, reasonable assurance that (i) all transactions are executed in accordance with management’s authorization and (ii) all transactions are recorded as necessary to permit preparation of proper and accurate financial statements in accordance with GAAP and to maintain accountability for the Group Companies’ assets. The Group Companies maintain and, for all periods covered by the Financial Statements, have maintained books and records of the Group Companies Company (which are in the ordinary course of business that are turn accurate and complete complete). The Company maintains a standard system of accounting established and reflect the revenues, expenses, assets and liabilities of the Group Companies administered in all material respects.
(e) Except as set forth in Section 3.4(e) of the Company Disclosure Schedule, since the incorporation of the Company, no Group accordance with GAAP. The Company has received never had, and nor does it currently have, any written complaintoff balance sheet Liability of any nature to, allegationor any financial interest in, assertion any third party or claim that there is (i) “significant deficiency” in the internal controls over financial reporting of the Group Companies, (ii) a “material weakness” in the internal controls over financial reporting of the Group Companies or (iii) fraud, whether or not material, that involves management or other employees of the Group Companies who have a significant role in the internal controls over financial reporting of the Group Companiesentities.
Appears in 1 contract
Financial Statements; Undisclosed Liabilities. (a) The Company has made available to HighCape a true and complete copy Section 3.5(a) of the Disclosure Schedule includes (i) the audited consolidated unaudited combined balance sheets sheet of the Group Companies Company and its Subsidiaries as of December March 31, 2019, and the related audited consolidated statements of operations and comprehensive loss, convertible preferred stock and stockholders’ deficit and cash flows of the Group Companies for each of the periods then ended, (ii) the unaudited consolidated balance sheets of the Group Companies as of December 31, 2020, and the related unaudited consolidated statements of operations and comprehensive loss, convertible preferred stock and stockholders’ deficit and cash flows of the Group Companies for the twelve (12)-month period then ended, and (iii) the unaudited consolidated balance sheets of the Group Companies as of December 31, 2019 and December 31, 2020 2024 (the “Latest Balance Sheet”) ), and the related unaudited consolidated statements combined statement of operations for the three (3) month period then ended, and comprehensive loss, convertible preferred stock and stockholders’ deficit and cash flows (ii) the unaudited combined balance sheet of the Group Companies Company and its Subsidiaries as of December 31, 2023, December 31, 2022 and December 31, 2021, and the related unaudited combined statement of operations for each of the periods twelve (12) month period then ended (such financial statements referred to in the foregoing clauses (i), ) and (ii), and (iii) are collectively, the “Financial Statements”), each of which are attached . Except as set forth on Section 3.4(a3.5(a) of the Company Disclosure Schedules. Each of Schedule, the Financial Statements were (including i) prepared from the notes theretobooks and records of the Company and its Subsidiaries, (ii) fairly present, in all material respects, the combined financial position of the Company and its Subsidiaries as at the respective dates thereof and the combined results of operations and cash flows of the Company and its Subsidiaries for the respective periods covered thereby, and (Aiii) was have been prepared in accordance with GAAP applied on a consistent basis throughout the periods indicated covered (except as may be indicated in subject to the notes thereto)absence of footnotes or, (B) fairly presents, in all material respects, the financial position, results of operations and cash flows of the Group Companies as at the date thereof and for the period indicated therein, except as otherwise specifically noted therein, and (C) in the case of the Financial Statements included in clause (iii) onlyunaudited statements, were prepared in accordance with the standards of the PCAOB, and comply in all material respects with the applicable accounting requirements and with the rules and regulations of the SEC, the Exchange Act and the Securities Act in effect as of the respective dates thereof (including Regulation Snormal year-X or Regulation S-K, as applicableend adjustments).
(b) The audited consolidated balance sheets books of account and financial records of the Group Companies as of December 31, 2019 Acquired Entities are true and December 31, 2020, correct in all material respects and the related audited consolidated statements of operations have been prepared and comprehensive loss, convertible preferred stock and stockholders’ deficit and cash flows of the Group Companies for each of the periods then ended (the “Closing Company Audited Financial Statements”), when delivered following the date of this Agreement in accordance with Section 5.17, (i) will be prepared in accordance with GAAP applied are maintained on a consistent basis throughout the periods indicated (except as may be indicated period involved. The Acquired Entities have not made any changes in their accounting practice since the notes thereto), (ii) will fairly present, in all material respects, the financial position, results of operations and cash flows date of the Group Companies as at the date thereof Latest Balance Sheet. The Acquired Entities maintain a standard system of accounting established and for the period indicated therein, except as otherwise specifically noted therein, (iii) will be audited in accordance with the standards of the PCAOB and will contain an unqualified report of the Company’s auditors, and (iv) will comply in all material respects with the applicable accounting requirements and with the rules and regulations of the SEC, the Exchange Act and the Securities Act in effect as of the respective dates thereof (including Regulation S-X or Regulation S-K, as applicable)administered on a consistent basis.
(c) Except (i) as set forth on Section 3.5(c) of the face of Disclosure Schedule, no Acquired Entity has any Liabilities that would be required to be reflected on a balance sheet prepared in accordance with GAAP other than (i) Liabilities disclosed in the Latest Balance Sheet, (ii) for Liabilities incurred in the ordinary course Ordinary Course of business since Business after the Latest Balance Sheet Date (none of which is a Liability for breach of contract, breach of warranty, tort, infringement or violation of Law), (iii) for Liabilities incurred in connection with the negotiation, preparation or execution of this Agreement or executory obligations under any Ancillary Documents, the performance of their respective covenants or agreements in this Agreement or any Ancillary Document or the consummation of the transactions contemplated hereby or thereby and (iv) for Liabilities that are not and would not reasonably be expected to be, individually or Contracts entered into in the aggregate, material to the Group Companies, taken as a whole, no Group Company has any Liabilities Ordinary Course of the type required to be set forth on a balance sheet in accordance with GAAPBusiness.
(d) The Group Companies have established and maintain systems of internal accounting controls that are designed to provide, in all material respects, reasonable assurance that (i) all transactions are executed in accordance with management’s authorization and (ii) all transactions are recorded as necessary to permit preparation of proper and accurate financial statements in accordance with GAAP and to maintain accountability for the Group Companies’ assets. The Group Companies maintain and, for all periods covered by the Financial Statements, have maintained books and records accounts receivable of the Group Companies Acquired Entities are valid and enforceable claims, and are subject to no set-off or counterclaim. Since the date of the Latest Balance Sheet, each Acquired Entity has collected its accounts receivable in the ordinary course Ordinary Course of business that are accurate Business and complete and reflect the revenues, expenses, assets and liabilities of the Group Companies in all material respectshas not accelerated any such collections.
(e) Section 3.5(e) of the Disclosure Schedule lists all Indebtedness for borrowed money of the Acquired Entities, if any.
(f) Except as set forth in on Section 3.4(e3.5(f) of the Company Disclosure Schedule, since the incorporation of the Company, no Group Company has received any written complaint, allegation, assertion or claim that there is (i) “significant deficiency” in the internal controls over financial reporting no property or obligation of the Group Companiesany Acquired Entity, (ii) a “material weakness” in the internal controls over financial reporting of the Group Companies including uncashed checks to vendors, customers or (iii) fraudemployees, whether non-refunded overpayments or not materialcredits, that involves management is escheatable or other employees of the Group Companies who have a significant role in the internal controls over financial reporting of the Group Companiespayable to any state or municipality under any applicable escheatment or unclaimed property Laws.
Appears in 1 contract
Sources: Securities Purchase Agreement (Astrana Health, Inc.)
Financial Statements; Undisclosed Liabilities. (a) The Company has made available to HighCape Longview a true and complete copy of (i) the audited consolidated balance sheets of the Group Companies as of December 31, 2018 and December 31, 2019, and the related audited consolidated statements of operations and comprehensive loss, convertible preferred stock and stockholders’ deficit and cash flows of the Group Companies for each of the periods then ended, (ii) the unaudited consolidated balance sheets of the Group Companies as of December 31June 30, 2020, and the related unaudited consolidated statements of operations and comprehensive loss, convertible preferred stock and stockholders’ deficit and cash flows of the Group Companies for the twelve (12)-month nine-month period then ended, and (iii) the unaudited consolidated balance sheets of the Group Companies as of December 31, 2019 2018 and December 31, 2020 (the “Latest Balance Sheet”) 2019 and the related unaudited audited consolidated statements of operations and comprehensive loss, convertible preferred stock and stockholders’ deficit and cash flows of the Group Companies for each of the periods then ended and (iv) the unaudited consolidated balance sheets of the Group Companies as of September 30, 2020 (the “Latest Balance Sheet”), and the related unaudited consolidated statements of operations and comprehensive loss, convertible preferred stock and stockholders’ deficit and cash flows of the Group Companies for the nine-month period then ended (clauses (i), (ii), (iii) and (iiiiv) are collectively, the “Financial Statements”), each of which are attached as Section 3.4(a) of the Company Disclosure Schedules. Each of the Financial Statements (including the notes thereto) (A) was prepared in accordance with GAAP applied on a consistent basis throughout the periods indicated (except as may be indicated in the notes thereto), (B) fairly presents, in all material respects, the financial position, results of operations and cash flows of the Group Companies as at the date thereof and for the period indicated therein, except as otherwise specifically noted therein, and (C) in the case of the Financial Statements included in clause clauses (iii) and (iv) only, were prepared in accordance with the standards of the PCAOB, and comply in all material respects with the applicable accounting requirements and with the rules and regulations of the SEC, the Exchange Act and the Securities Act in effect as of the respective dates thereof (including Regulation S-X or Regulation S-K, as applicable).
(b) The audited consolidated balance sheets of the Group Companies as of December 31, 2019 2018 and December 31, 20202019, and the related audited consolidated statements of operations and comprehensive loss, convertible preferred stock and stockholders’ deficit and cash flows of the Group Companies for each of the periods then ended (the “Closing Company Audited Financial Statements”), when delivered following the date of this Agreement in accordance with Section 5.17, (i) will be prepared in accordance with GAAP applied on a consistent basis throughout the periods indicated (except as may be indicated in the notes thereto), (ii) will fairly present, in all material respects, the financial position, results of operations and cash flows of the Group Companies as at the date thereof and for the period indicated therein, except as otherwise specifically noted therein, (iii) will be audited in accordance with the standards of the PCAOB and will contain an unqualified report of the Company’s auditors, and (iv) will comply in all material respects with the applicable accounting requirements and with the rules and regulations of the SEC, the Exchange Act and the Securities Act in effect as of the respective dates thereof (including Regulation S-X or Regulation S-K, as applicable).
(c) Except (i) as set forth on the face of the Latest Balance Sheet, (ii) for Liabilities incurred in the ordinary course of business since the Latest Balance Sheet Date (none of which is a Liability for breach of contract, breach of warranty, tort, infringement or violation of Law), (iii) for Liabilities incurred in connection with the negotiation, preparation or execution of this Agreement or any Ancillary Documents, the performance of their respective covenants or agreements in this Agreement or any Ancillary Document or the consummation of the transactions contemplated hereby or thereby and (iv) for Liabilities that are not and would not reasonably be expected to be, individually or in the aggregate, material to the Group Companies, taken as a whole, no Group Company has any Liabilities of the type required to be set forth on a balance sheet in accordance with GAAP.
(d) The Group Companies have established and maintain systems of internal accounting controls that are designed to provide, in all material respects, reasonable assurance that (i) all transactions are executed in accordance with management’s authorization and (ii) all transactions are recorded as necessary to permit preparation of proper and accurate financial statements in accordance with GAAP and to maintain accountability for the Group Companies’ assets. The Group Companies maintain and, for all periods covered by the Financial Statements, have maintained books and records of the Group Companies in the ordinary course of business that are accurate and complete and reflect the revenues, expenses, assets and liabilities of the Group Companies in all material respects.
(e) Except as set forth in Section 3.4(e) of the Company Disclosure Schedule, since the incorporation of the Company, no Group Company has received any written complaint, allegation, assertion or claim that there is (i) “significant deficiency” in the internal controls over financial reporting of the Group CompaniesCompanies to the Company’s knowledge, (ii) a “material weakness” in the internal controls over financial reporting of the Group Companies to the Company’s knowledge or (iii) fraud, whether or not material, that involves management or other employees of the Group Companies who have a significant role in the internal controls over financial reporting of the Group Companies.
Appears in 1 contract
Sources: Business Combination Agreement (Longview Acquisition Corp.)
Financial Statements; Undisclosed Liabilities. (ai) The Company has made available to HighCape a true and complete copy Section 4.07(a) of the Schedules sets forth (i) the audited consolidated balance sheets sheet of the Group Companies Company and its Subsidiaries as of at December 31, 20192022 and December 31, 2021 and the related audited consolidated statements of operations and comprehensive income (loss), convertible preferred stock and stockholderschanges in partners’ deficit equity and cash flows of the Group Companies Company and its Subsidiaries for each the fiscal years ended December 31, 2022 and December 31, 2021, accompanied by any notes thereto and the reports of the periods then endedCompany’s independent accountants with respect thereto, and (ii) the unaudited condensed consolidated balance sheets of the Group Companies as of December 31, 2020, and the related unaudited consolidated statements of operations and comprehensive loss, convertible preferred stock and stockholders’ deficit and cash flows of the Group Companies for the twelve (12)-month period then ended, and (iii) the unaudited consolidated balance sheets of the Group Companies as of December 31, 2019 and December 31, 2020 sheet (the “Latest Interim Balance Sheet”) of the Company and its Subsidiaries as at September 30, 2023 (the “Most Recent Balance Sheet Date”) and the related unaudited consolidated statements of operations and comprehensive income (loss), convertible preferred stock and stockholderschanges in partners’ deficit equity and cash flows of the Group Companies Company and its Subsidiaries for each of the periods then nine (9) months ended September 30, 2023 (clauses (i), (ii), and (iii) are collectively, the “Financial Statements”), each of which are attached as Section 3.4(a) of the Company Disclosure Schedules. Each of the The Financial Statements (including the any notes thereto) are true, correct and complete in all material respects and have been (Ai) was derived from and are consistent with the books and records of the Company and its Subsidiaries, (ii) prepared in accordance with GAAP consistently applied on a consistent basis throughout the periods indicated (except as may be indicated in the notes thereto), (B) fairly presents, in all material respects, the financial position, results of operations and cash flows of the Group Companies as at the date thereof and for the period indicated therein, except as otherwise specifically noted thereininvolved, and (C) in the case of the Financial Statements included in clause (iii) only, were prepared in accordance with the standards of the PCAOB, and comply in all material respects with the applicable accounting requirements and with the rules and regulations of the SEC, the Exchange Act and the Securities Act in effect as of the respective dates thereof (including Regulation S-X or Regulation S-K, as applicable).
(b) The audited consolidated balance sheets of the Group Companies as of December 31, 2019 and December 31, 2020, and the related audited consolidated statements of operations and comprehensive loss, convertible preferred stock and stockholders’ deficit and cash flows of the Group Companies for each of the periods then ended (the “Closing Company Audited Financial Statements”), when delivered following the date of this Agreement in accordance with Section 5.17, (i) will be prepared in accordance with GAAP applied on a consistent basis throughout the periods indicated (except as may be indicated in the notes thereto), (ii) will fairly present, in all material respects, the consolidated financial position, position and the results of operations and cash flows of the Group Companies as Company and its Subsidiaries at the date thereof dates, and for the period indicated thereinperiods, except as otherwise specifically noted thereinpresented therein (subject in the case of unaudited statements, to changes resulting from normal year-end audit adjustments required by GAAP and to the absence of notes thereto).
(iiiii) will be audited in accordance with the standards The books and records of the PCAOB Company and will contain an unqualified report its Subsidiaries are true and correct in all material respects and in reasonable detail accurately and fairly reflect actual, bona fide transactions of the Company’s auditors, Company and (iv) will its Subsidiaries. The Company and its Subsidiaries maintain and comply in all material respects with the applicable a system of accounting requirements and with the rules and regulations of the SEC, the Exchange Act and the Securities Act in effect as of the respective dates thereof (including Regulation S-X or Regulation S-K, as applicable).
(c) Except controls sufficient to provide reasonable assurances that (i) as set forth on the face business of the Latest Balance Sheet, (ii) for Liabilities incurred in the ordinary course of business since the Latest Balance Sheet Date (none of which Company and its Subsidiaries is a Liability for breach of contract, breach of warranty, tort, infringement or violation of Law), (iii) for Liabilities incurred in connection with the negotiation, preparation or execution of this Agreement or any Ancillary Documents, the performance of their respective covenants or agreements in this Agreement or any Ancillary Document or the consummation of the transactions contemplated hereby or thereby and (iv) for Liabilities that are not and would not reasonably be expected to be, individually or in the aggregate, material to the Group Companies, taken as a whole, no Group Company has any Liabilities of the type required to be set forth on a balance sheet in accordance with GAAP.
(d) The Group Companies have established and maintain systems of internal accounting controls that are designed to provideoperated, in all material respects, reasonable assurance that (i) all transactions are executed in accordance with management’s authorization and applicable Law and (ii) all transactions are recorded as necessary to permit preparation of proper and accurate financial statements in accordance conformity with GAAP and to maintain accountability for the Group Companies’ assets. The Group Companies maintain and, for all periods covered by the Financial Statements, have maintained books and records of the Group Companies in the ordinary course of business that are accurate and complete and reflect the revenues, expenses, assets and liabilities of the Group Companies in all material respectsGAAP.
(eiii) Except as set forth in the Interim Balance Sheet, neither the Company nor any of the Company’s Subsidiaries has any liabilities, obligations, debts, commitments of any kind or nature (whether accrued, absolute, contingent, unliquidated or otherwise, due or to become due, matured or unmatured, known or unknown), except (i) for current liabilities incurred since the Most Recent Balance Sheet Date in the Ordinary Course of Business; (ii) for liabilities incurred since the Most Recent Balance Sheet Date that are permitted by this Agreement; (iii) as set forth on Section 3.4(e4.07(c) of the Schedules; (iv) under an executory portion of a Contract that have not yet been performed (which liabilities do not arise from any tort, breach of Contractual Obligation or violation of any applicable Law).
(iv) Since the Most Recent Balance Sheet Date, all current assets and current liabilities have been managed by the Company Disclosure Schedule, since the incorporation of the Company, no Group Company has received any written complaint, allegation, assertion or claim that there is (i) “significant deficiency” and its Subsidiaries in the internal controls over financial reporting Ordinary Course of the Group Companies, (ii) a “material weakness” in the internal controls over financial reporting of the Group Companies or (iii) fraud, whether or not material, that involves management or other employees of the Group Companies who have a significant role in the internal controls over financial reporting of the Group CompaniesBusiness.
Appears in 1 contract
Financial Statements; Undisclosed Liabilities. (a) The Company has made available to HighCape a true Sellers have furnished the Purchaser with true, correct and complete copy copies of (i) the audited consolidated balance sheets sheet of the Group Companies Company as of December 31, 2019, and the related audited consolidated statements of operations and comprehensive loss, convertible preferred stock and stockholders’ deficit and cash flows of the Group Companies for each of the periods then ended, (ii) the unaudited consolidated balance sheets of the Group Companies as of December 31, 2020, and the related unaudited consolidated statements of operations and comprehensive loss, convertible preferred stock and stockholders’ deficit and cash flows of the Group Companies for the twelve (12)-month period then ended, and (iii) the unaudited consolidated balance sheets of the Group Companies as of December 31, 2019 and at December 31, 2020 (the “Latest Balance SheetSheet Date”), December 31, 2019, and December 31, 2018, the related statements of income, stockholders’ equity and cash flows, retained earnings and changes in financial position for the fiscal years ended December 31, 2020, December 31, 2019, and December 31, 2018, and (ii) the interim balance sheet of the Company as at September 30, 2021, and the related unaudited consolidated interim statements of operations and comprehensive lossincome, convertible preferred stock and stockholders’ deficit equity and cash flows of flows, retained earnings and changes in financial position for the Group Companies for each of the periods nine (9) months then ended (the interim statements referred to in this clause (ii) being referred to as the “Interim Financial Statements”). The financial statements referred to in clauses (i), ) and (ii), and ) above (iii) are collectively, the “Financial Statements”), each of which are attached except as Section 3.4(a) of the Company Disclosure Schedules. Each of the Financial Statements (including the notes thereto) (A) was described therein, have been prepared in accordance with GAAP the historical accounting practices of the Company, consistently applied on a consistent basis throughout the periods indicated (except as may be indicated in the notes thereto), (B) fairly presents, in all material respects, except that the financial position, results of operations and cash flows of the Group Companies as at the date thereof and for the period indicated therein, except as otherwise specifically noted therein, and (C) in the case of the Interim Financial Statements included in clause (iii) only, were prepared may be subject to year-end adjustments in accordance with the standards historical accounting practices of the PCAOB, and comply in all material respects with the applicable accounting requirements and with the rules and regulations of the SEC, the Exchange Act and the Securities Act in effect as of the respective dates thereof (including Regulation S-X or Regulation S-K, as applicable)Company.
(b) The audited consolidated Company maintains books and records reflecting its assets and liabilities that are accurate and complete in all material respects, and a system of internal accounting controls that are designed to provide reasonable assurance that: (i) transactions are executed with management’s general or specific authorization, (ii) transactions are recorded as necessary to permit preparation of its financial statements in accordance with the historical accounting practices of the Company, consistently applied, and to maintain accountability for assets, (iii) access to its assets is permitted only in accordance with the management’s general or specific authorization, (iv) all transactions are executed with management’s authorization and accurately recorded in the correct period as necessary to permit the preparation of the Financial Statements, and (v) all material information concerning the Company is made known on a timely basis to the individuals responsible for the preparation of the Financial Statements. Since the Balance Sheet Date, the Company has not effected any change in any method of accounting or keeping of books of account or accounting practice, except for any such change required because of a concurrent change in GAAP.
(c) Except as described in Section 3.08(a), the balance sheets of the Group Companies as of December 31, 2019 Company referred to in Section 3.08(a)(i) and December 31, 2020, and the related audited consolidated statements of operations and comprehensive loss, convertible preferred stock and stockholders’ deficit and cash flows of the Group Companies for each of the periods then ended (the “Closing Company Audited Financial Statements”), when delivered following the date of this Agreement in accordance with Section 5.17, (i) will be prepared in accordance with GAAP applied on a consistent basis throughout the periods indicated (except as may be indicated in the notes thereto), (ii) will are true and correct and fairly present, in all material respects, the financial positionposition of the Company as at their respective dates, and the related statements of income, stockholders’ equity and cash flows, retained earnings and changes in financial position are true and correct and fairly present, in all material respects, the results of operations operations, stockholders’ equity and cash flows of the Group Companies Company and the changes in its financial position for the periods indicated.
(d) The Company does not have any claims or Liabilities, whether primary or secondary, direct or indirect, absolute, accrued, contingent or otherwise, except for (i) claims or Liabilities set forth in the balance sheet of the Company as at the date thereof and for the period indicated therein, except as otherwise specifically noted therein, (iii) will be audited in accordance with the standards of the PCAOB and will contain an unqualified report of the Company’s auditorsBalance Sheet Date, and (iv) will comply in all material respects with the applicable accounting requirements and with the rules and regulations of the SEC, the Exchange Act and the Securities Act in effect as of the respective dates thereof (including Regulation S-X or Regulation S-K, as applicable).
(c) Except (i) as set forth on the face of the Latest Balance Sheet, (ii) for Liabilities accounts payable to trade creditors and accrued expenses incurred subsequent to the Balance Sheet Date in the ordinary course of business since the Latest Balance Sheet Date (none of which is a Liability for breach of contract, breach of warranty, tort, infringement or violation of Law), (iii) for Liabilities incurred in connection consistent with the negotiation, preparation or execution of this Agreement or any Ancillary Documents, the performance of their respective covenants or agreements in this Agreement or any Ancillary Document or the consummation of the transactions contemplated hereby or thereby past practice and (iv) for Liabilities that are not and would not reasonably be expected to be, individually or in the aggregate, otherwise material to the Group CompaniesCompany. As of the date hereof, taken as a whole, no Group the Company has any no Liabilities for Indebtedness except as set forth in Section 3.08(d) of the type required to be set forth on a balance sheet in accordance with GAAP.
(d) The Group Companies have established and maintain systems of internal accounting controls that are designed to provide, in all material respects, reasonable assurance that (i) all transactions are executed in accordance with management’s authorization and (ii) all transactions are recorded as necessary to permit preparation of proper and accurate financial statements in accordance with GAAP and to maintain accountability for the Group Companies’ assets. The Group Companies maintain and, for all periods covered by the Financial Statements, have maintained books and records of the Group Companies in the ordinary course of business that are accurate and complete and reflect the revenues, expenses, assets and liabilities of the Group Companies in all material respectsSeller Disclosure Letter.
(e) Except The Company is not a party to, or has any commitment to become a party to, any off balance sheet arrangement, including any “off balance sheet arrangement” (as set forth defined in Section 3.4(eItem 303(a) of Regulation S‑K promulgated by the Company Disclosure ScheduleSecurities and Exchange Commission). During and with respect to the time periods or dates reflected on the Financial Statements, since the incorporation none of the Company, no Group Sellers or the Company has received any written material complaint, allegation, assertion or claim regarding deficiencies with respect to the Company in the accounting practices, procedures, methodologies or methods of the Company or its internal accounting controls, including any material written complaint, allegation, assertion or claim that there is (i) “significant deficiency” the Sellers or the Company has engaged in legally-improper accounting practices with respect to the internal controls over financial reporting of the Group Companies, (ii) a “material weakness” in the internal controls over financial reporting of the Group Companies or (iii) fraud, whether or not material, that involves management or other employees of the Group Companies who have a significant role in the internal controls over financial reporting of the Group CompaniesCompany.
Appears in 1 contract
Financial Statements; Undisclosed Liabilities. (a) The Company has made available to HighCape a true and complete copy of (i) Attached hereto as Schedule 4(f)(i) are the audited consolidated balance sheets following financial statements of the Group Companies as of December 31, 2019, and the related audited consolidated statements of operations and comprehensive loss, convertible preferred stock and stockholders’ deficit and cash flows of the Group Companies for each of the periods then ended, Seller: (iiA) the compiled, unaudited consolidated balance sheets sheet and statements of the Group Companies income and changes in stockholders’ equity as of December 31, 2020, and the related unaudited consolidated statements of operations and comprehensive loss, convertible preferred stock and stockholders’ deficit and cash flows of the Group Companies for the twelve (12)-month period then ended, and (iii) the unaudited consolidated balance sheets of the Group Companies as of fiscal years ended December 31, 2019 and December 31, 2020 (collectively, the “Latest Year-End Financial Statements”); and (B) the unaudited consolidated balance sheet and statements of income and changes in stockholders’ equity as of and for the eleven (11)-month period ended November 30, 2021 (such date, the “Most Recent Balance Sheet Date”, such balance sheet, the “Most Recent Balance Sheet”) , and the related unaudited consolidated such balance sheet and statements of operations income and comprehensive loss, convertible preferred stock and changes in stockholders’ deficit and cash flows of equity, collectively, the Group Companies for each of “Most Recent Financial Statements” and, together with the periods then ended (clauses (i)Year-End Financial Statements, (ii), and (iii) are collectively, the “Financial Statements”), each of which are attached as Section 3.4(a) of the Company Disclosure Schedules. Each of the The Financial Statements (including the notes thereto, as applicable) are complete and correct in all material respects, have been prepared in accordance, and are consistent, with the books and records of the Seller (A) was prepared which books and records are complete and correct in all material respects), and fairly and accurately present in all material respects the financial condition, results of operations, and changes in financial position of the Seller as of such dates and for such periods, in each case in accordance with GAAP generally accepted accounting principles as in effect in the United States (as in effect as of the dates such Financial Statements were prepared, applied on a consistent basis throughout the periods indicated Financial Statements), provided that the Most Recent Financial Statements are subject to normal year-end adjustments and lack footnotes (except as may none of which adjustments or footnotes are or would be indicated material in the notes thereto)aggregate) and other presentation items.
(ii) The Seller does not have any Liabilities or commitments, except those that are adequately reflected or reserved against on the Most Recent Balance Sheet.
(Biii) fairly presents, in all material respectsDuring the three (3) years prior to the date hereof, the financial positionSeller has not changed the accounting methods, results of operations and cash flows of principles, policies, practices, procedures, classifications, judgments, or estimation methodology used by the Group Companies as at the date thereof and for the period indicated therein, except as otherwise specifically noted therein, and (C) Seller in the case preparation of the Financial Statements included in clause (iii) only, were prepared in accordance with the standards of the PCAOB, and comply in all material respects with the applicable accounting requirements and with the rules and regulations of the SEC, the Exchange Act and the Securities Act in effect as of the respective dates thereof (including Regulation S-X or Regulation S-K, as applicable).
(b) The audited consolidated balance sheets of the Group Companies as of December 31, 2019 and Statements. Since December 31, 2020, the Seller has not (1) accelerated its acquisition of materials or inventory or incurrence of other costs, or (2) otherwise modified its operations in a manner that would accelerate the recognition of revenue, in each case within the foregoing clauses (1) and the related audited consolidated statements of operations and comprehensive loss, convertible preferred stock and stockholders’ deficit and cash flows of the Group Companies for each of the periods then ended (the “Closing Company Audited Financial Statements”2), when delivered following the date of this Agreement in accordance with Section 5.17, (i) will be prepared in accordance with GAAP applied on a consistent basis throughout the periods indicated (except as may be indicated in the notes thereto), (ii) will fairly present, in all material respects, the financial position, results of operations and cash flows of the Group Companies as at the date thereof and for the period indicated therein, except as otherwise specifically noted therein, (iii) will be audited in accordance with the standards of the PCAOB and will contain an unqualified report of the Company’s auditors, and (iv) will comply in all material respects with the applicable accounting requirements and with the rules and regulations of the SEC, the Exchange Act and the Securities Act in effect as of the respective dates thereof (including Regulation S-X or Regulation S-K, as applicable).
(c) Except (i) as set forth on the face of the Latest Balance Sheet, (ii) for Liabilities incurred in the ordinary course of business since the Latest Balance Sheet Date (none of which is a Liability for breach of contract, breach of warranty, tort, infringement or violation of Law), (iii) for Liabilities incurred in connection with the negotiation, preparation or execution of this Agreement or any Ancillary Documents, the performance of their respective covenants or agreements in this Agreement or any Ancillary Document or the consummation of the transactions contemplated hereby or thereby and (iv) for Liabilities that are not and would not reasonably be expected to be, individually or in the aggregate, material relative to the Group Companies, taken as a whole, no Group Company has any Liabilities Ordinary Course of the type required to be set forth on a balance sheet in accordance with GAAPBusiness.
(d) The Group Companies have established and maintain systems of internal accounting controls that are designed to provide, in all material respects, reasonable assurance that (i) all transactions are executed in accordance with management’s authorization and (ii) all transactions are recorded as necessary to permit preparation of proper and accurate financial statements in accordance with GAAP and to maintain accountability for the Group Companies’ assets. The Group Companies maintain and, for all periods covered by the Financial Statements, have maintained books and records of the Group Companies in the ordinary course of business that are accurate and complete and reflect the revenues, expenses, assets and liabilities of the Group Companies in all material respects.
(e) Except as set forth in Section 3.4(e) of the Company Disclosure Schedule, since the incorporation of the Company, no Group Company has received any written complaint, allegation, assertion or claim that there is (i) “significant deficiency” in the internal controls over financial reporting of the Group Companies, (ii) a “material weakness” in the internal controls over financial reporting of the Group Companies or (iii) fraud, whether or not material, that involves management or other employees of the Group Companies who have a significant role in the internal controls over financial reporting of the Group Companies.
Appears in 1 contract
Sources: Asset Purchase Agreement (STRATA Skin Sciences, Inc.)
Financial Statements; Undisclosed Liabilities. (a) The Company has made available to HighCape Schedule 3.7(a) sets forth a true and complete correct copy of the Financial Statements. The Financial Statements (i) the audited consolidated balance sheets of the Group Companies as of December 31, 2019, and the related audited consolidated statements of operations and comprehensive loss, convertible preferred stock and stockholders’ deficit and cash flows of the Group Companies for each of the periods then ended, (ii) the unaudited consolidated balance sheets of the Group Companies as of December 31, 2020, and the related unaudited consolidated statements of operations and comprehensive loss, convertible preferred stock and stockholders’ deficit and cash flows of the Group Companies for the twelve (12)-month period then ended, and (iii) the unaudited consolidated balance sheets of the Group Companies as of December 31, 2019 and December 31, 2020 (the “Latest Balance Sheet”) and the related unaudited consolidated statements of operations and comprehensive loss, convertible preferred stock and stockholders’ deficit and cash flows of the Group Companies for each of the periods then ended (clauses (i), (ii), and (iii) are collectively, the “Financial Statements”), each of which are attached as Section 3.4(a) of the Company Disclosure Schedules. Each of the Financial Statements (including the notes thereto) (A) was have been prepared in accordance with GAAP applied on a consistent the basis throughout of accounting described in Notes 1 and 2 thereto and the periods indicated books, records, and accounts of the Weight Watchers Classroom Business (except as may be indicated described in the notes thereto), Financial Statements) and (Bii) present fairly presents, in all material respects, the financial positionassets, results of operations liabilities and operating income before taxes and cash flows from operations of the Group Companies Weight Watchers Classroom Business (as described in the Financial Statements) at the date thereof times and for the period indicated thereinperiods covered thereby, except as otherwise specifically noted thereinthe case may be, in accordance with the basis described in Notes 1 and (C2 to the Financial Statements. Schedule 3.7(a) includes in the case of the Statements of Operating Income Before Income Taxes, a description of all adjustments, and in the case of the Statements of Assets and Liabilities, a description of all categories of adjustments, in each case other than immaterial adjustments, necessary to conform the Financial Statements included in clause (iii) only, were to financial statements prepared in accordance with the standards of the PCAOB, and comply in all material respects with the applicable accounting requirements and with the rules and regulations of the SEC, the Exchange Act and the Securities Act in effect as of the respective dates thereof (including Regulation S-X or Regulation S-K, as applicable)GAAP.
(b) The audited consolidated Companies have no liabilities (whether accrued, absolute, contingent or otherwise and whether known or unknown) that would have been required to be reflected in or reserved against on a balance sheets of sheet (or the Group notes thereto) for the Companies taken as of December 31, 2019 and December 31, 2020, and the related audited consolidated statements of operations and comprehensive loss, convertible preferred stock and stockholders’ deficit and cash flows of the Group Companies for each of the periods then ended (the “Closing Company Audited Financial Statements”), when delivered following the date of this Agreement in accordance with Section 5.17, (i) will be a whole prepared in accordance with GAAP applied on a consistent basis throughout GAAP, other than (i) liabilities reflected or reserved against (to the periods indicated extent of the reserves therefor) in the 1999 Combined Statements of Assets and Liabilities (except as may be indicated in including the notes thereto), (ii) will fairly present, in all material respects, the financial position, results of operations and cash flows of the Group Companies as at the date thereof and for the period indicated therein, except as otherwise specifically noted therein, (iii) will be audited in accordance with the standards of the PCAOB and will contain an unqualified report of the Company’s auditors, and (iv) will comply in all material respects with the applicable accounting requirements and with the rules and regulations of the SEC, the Exchange Act and the Securities Act in effect as of the respective dates thereof (including Regulation S-X obligations incurred or Regulation S-K, as applicable).
(c) Except (i) as set forth on the face of the Latest Balance Sheet, (ii) for Liabilities incurred arising in the ordinary course of business consistent in all material respects with past practice since the Latest Balance Sheet Date (none of which is a Liability for breach of contractApril 24, breach of warranty, tort, infringement or violation of Law), (iii) for Liabilities incurred in connection with the negotiation, preparation or execution of this Agreement or any Ancillary Documents, the performance of their respective covenants or agreements in this Agreement or any Ancillary Document or the consummation of the transactions contemplated hereby or thereby and (iv) for Liabilities that are not and would not reasonably be expected to be1999 which, individually or in the aggregate, material would not be likely to have a Material Adverse Effect, (iii) the Group Companies, taken as a whole, no Group Company has any Liabilities of the type required to be set forth on a balance sheet in accordance with GAAP.
(d) The Group Companies have established and maintain systems of internal accounting controls that are designed to provide, in all material respects, reasonable assurance that (i) all transactions are executed in accordance with management’s authorization and (ii) all transactions are recorded as necessary to permit preparation of proper and accurate financial statements in accordance with GAAP and to maintain accountability for the Group Companies’ assets. The Group Companies maintain and, for all periods covered by the Financial Statements, have maintained books and records of the Group Companies in the ordinary course of business that are accurate and complete and reflect the revenues, expenses, assets and liabilities of the Group Companies in all material respects.
(e) Except as set forth in Section 3.4(eSchedule 3.7(b), (iv) of the Company Disclosure ScheduleExcluded Liabilities, since the incorporation of the Companyand (v) other liabilities which, no Group Company has received any written complaint, allegation, assertion individually or claim that there is (i) “significant deficiency” in the internal controls over financial reporting of the Group Companiesaggregate, (ii) a “material weakness” in the internal controls over financial reporting of the Group Companies or (iii) fraud, whether or would not material, that involves management or other employees of the Group Companies who be likely to have a significant role in the internal controls over financial reporting of the Group CompaniesMaterial Adverse Effect.
Appears in 1 contract
Sources: Recapitalization and Stock Purchase Agreement (Gutbusters Pty LTD)
Financial Statements; Undisclosed Liabilities. (a) The Company has made available to HighCape a true and complete copy of Schedule 4.06(a) sets forth (i) the audited consolidated balance sheets sheet of the Group Companies Company as of September 30, 2017 and the related statements of comprehensive income, changes in equity and cash flows of the Company for the year then ended (together with the notes thereto, the “2017 Financial Statements”); (ii) the audited balance sheet of the Company as of September 30, 2016 and the related audited statements of comprehensive income, changes in equity and cash flows for the year then ended (together with the notes thereto, the “2016 Financial Statements”); (iii) the audited balance sheet of the Company as of September 30, 2015 and the related audited statements of comprehensive income, changes in equity and cash flows for the year then ended (together with the notes thereto, the “2015 Financial Statements”); and (iv) the unaudited balance sheet of the Company as of December 31, 2019, and the related audited consolidated statements of operations and comprehensive loss, convertible preferred stock and stockholders’ deficit and cash flows of the Group Companies for each of the periods then ended, (ii) the unaudited consolidated balance sheets of the Group Companies as of December 31, 2020, 2017 and the related unaudited consolidated statements of operations and comprehensive loss, convertible preferred stock and stockholders’ deficit income and cash flows of the Group Companies for the twelve (12)-month three-month period then ended, and (iii) the unaudited consolidated balance sheets of the Group Companies as of December 31, 2019 and December 31, 2020 (the “Latest Balance Sheet”) and the related unaudited consolidated statements of operations and comprehensive loss, convertible preferred stock and stockholders’ deficit and cash flows of the Group Companies for each of the periods then ended (clauses (i)together with the notes thereto, (ii)the “2018 Interim Financial Statements”, and, together with the 2017 Financial Statements, the 2016 Financial Statements and (iii) are the 2015 Financial Statements, collectively, the “Financial Statements”), each of which are attached as Section 3.4(a.
(a) of the Company Disclosure Schedules. Each of the The Financial Statements (including the notes thereto) (A) was have been prepared in accordance with GAAP GAAP, applied on a consistent basis throughout during the periods indicated covered thereby (except as may be indicated in the notes thereto)thereto and subject, (B) fairly presents, in all material respects, the financial position, results of operations and cash flows of the Group Companies as at the date thereof and for the period indicated therein, except as otherwise specifically noted therein, and (C) in the case of the 2018 Interim Financial Statements included Statements, to normal audit adjustments that would be made in clause (iiiconnection with an audit and the absence of footnotes) only, were prepared in accordance with the standards of the PCAOB, and comply present fairly in all material respects with the applicable accounting requirements financial condition and with the rules and regulations results of operations of the SEC, the Exchange Act and the Securities Act in effect Acquired Companies as of the respective dates thereof (including Regulation S-X or Regulation S-K, as applicable).
(b) The audited consolidated balance sheets of the Group Companies as of December 31, 2019 and December 31, 2020, and the related audited consolidated statements of operations and comprehensive loss, convertible preferred stock and stockholders’ deficit and cash flows of the Group Companies for each of the periods then ended (the “Closing Company Audited Financial Statements”), when delivered following the date of this Agreement in accordance with Section 5.17, (i) will be prepared in accordance with GAAP applied on a consistent basis throughout the periods indicated (except as may be indicated in the notes thereto), (ii) will fairly present, in all material respects, the financial position, results of operations and cash flows of the Group Companies as at the date thereof and for the period indicated therein, except as otherwise specifically noted therein, (iii) will be audited in accordance with periods covered thereby. The Financial Statements have been prepared on the standards basis of information derived from the books and records of the PCAOB and will contain an unqualified report of the Company’s auditorsAcquired Companies, and (iv) will comply in all material respects with the applicable accounting requirements and with the rules and regulations of the SEC, the Exchange Act and the Securities Act in effect as of the respective dates thereof (including Regulation S-X or Regulation S-K, as applicable).
(c) Except (i) as set forth on the face of the Latest Balance Sheet, (ii) for Liabilities incurred which are maintained in the ordinary course of business since the Latest Balance Sheet Date (none of which is a Liability for breach of contract, breach of warranty, tort, infringement or violation of Law), (iii) for Liabilities incurred in connection with the negotiation, preparation or execution of this Agreement or any Ancillary Documents, the performance of their respective covenants or agreements in this Agreement or any Ancillary Document or the consummation of the transactions contemplated hereby or thereby and (iv) for Liabilities that are not and would not reasonably be expected to be, individually or in the aggregate, material to the Group Companies, taken as a whole, no Group Company has any Liabilities of the type required to be set forth on a balance sheet in accordance with GAAP.
(d) business. The Group Acquired Companies have established and maintain systems of internal accounting controls that are designed to provide, in all material respects, provide reasonable assurance assurances that (i) all transactions are executed in accordance with management’s authorization and (ii) all transactions are recorded as necessary to permit the preparation of proper and accurate financial statements in accordance with GAAP and GAAP. Since October 1, 2015, none of the Selling Parties or the Acquired Companies nor, to maintain accountability for the Group knowledge of the Company, any auditor, accountant or representative of the foregoing has received any unresolved material written complaint, allegation or assertion of a problem or claim regarding the accounting or auditing practices, procedures, methodologies or methods of the Acquired Companies or the Acquired Companies’ assetsaccounting controls. The Group Companies maintain andTo the knowledge of the Company, for all periods covered there are no material weaknesses or significant deficiencies in the design or operations of the internal controls utilized by the Financial Statements, have maintained books and records Acquired Companies.
(b) None of the Group Acquired Companies has any Liabilities of a type that would be required to be reflected on a balance sheet of the Acquired Companies prepared in accordance with GAAP, other than Liabilities (i) reflected or reserved against on the balance sheet included in the 2017 Financial Statements (including the notes thereto), (ii) incurred after the date of the balance sheet included in the 2017 Financial Statements in the ordinary course of business consistent with past practice (but excluding Liabilities arising out of a breach of, or default under, any Contract, breach of warranty, tort or infringement claim or lawsuit), (iii) contemplated by or incurred in connection with this Agreement, the other Transaction Documents or the Transactions and (iv) that are accurate and complete and reflect not individually or in the revenuesaggregate material to the Acquired Companies, expenses, assets and liabilities of the Group Companies in all material respectstaken as a whole.
(ec) Except No Acquired Company is party to any material "off-balance sheet arrangements" (as set forth defined in Section 3.4(eItem 303(a) of the Company Disclosure Schedule, since the incorporation Regulation S-K of the Company, no Group Company has received any written complaint, allegation, assertion or claim that there is (i) “significant deficiency” in the internal controls over financial reporting of the Group Companies, (ii) a “material weakness” in the internal controls over financial reporting of the Group Companies or (iii) fraud, whether or not material, that involves management or other employees of the Group Companies who have a significant role in the internal controls over financial reporting of the Group CompaniesUnited States Securities and Exchange Commission).
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Financial Statements; Undisclosed Liabilities. (a) The Company has made available provided RSOL, at least 2 (two) business days prior to HighCape a the date of this Agreement, true and complete copy copies of the following (the financial statements referred to in clauses (i) and (ii) below being collectively referred to as the “Historical Financials”):
(i) the audited consolidated balance sheets of the Group Companies Company and its Subsidiaries as of December 31, 20192010, December 31, 2009, and the related audited consolidated December 31, 2008, and statements of operations and comprehensive lossincome, convertible preferred stock and stockholders’ deficit retained earnings and cash flows of the Group Companies for each of the periods three years then ended, ended (the “Year End Financials”); and
(ii) the unaudited consolidated balance sheets sheet of the Group Companies Company and its Subsidiaries as of December March 31, 2020, 2011 and the related unaudited consolidated statements statement of operations and comprehensive loss, convertible preferred stock and stockholders’ deficit and cash flows of the Group Companies for the twelve (12)-month period three months then ended, and (iii) the unaudited consolidated balance sheets of the Group Companies as of December 31, 2019 and December 31, 2020 ended (the “Latest Balance SheetMost Recent Financials”) and the related unaudited consolidated statements of operations and comprehensive loss, convertible preferred stock and stockholders’ deficit and cash flows of the Group Companies for each of the periods then ended (clauses (i), (ii), and (iii) are collectively, the “Financial Statements”), each of which are attached as Section 3.4(a) of the Company Disclosure Schedules. Each of the Financial Statements (including the notes thereto) (A) was prepared in accordance with GAAP applied on a consistent basis throughout the periods indicated (except as may be indicated in the notes thereto), (B) fairly presents, in all material respects, the financial position, results of operations and cash flows of the Group Companies as at the date thereof and for the period indicated therein, except as otherwise specifically noted therein, and (C) in the case of the Financial Statements included in clause (iii) only, were prepared in accordance with the standards of the PCAOB, and comply in all material respects with the applicable accounting requirements and with the rules and regulations of the SEC, the Exchange Act and the Securities Act in effect as of the respective dates thereof (including Regulation S-X or Regulation S-K, as applicable).
(b) The audited consolidated balance sheets of the Group Companies as of December 31, 2019 and December 31, 2020, and Year End Financials (including the related audited consolidated statements of operations schedules and comprehensive lossnotes, convertible preferred stock and stockholders’ deficit and cash flows of the Group Companies for each of the periods then ended (the “Closing Company Audited Financial Statements”), when delivered following the date of this Agreement if any) have been prepared in accordance with Section 5.17GAAP, (i) will be and GAAP has been applied consistently throughout all periods covered. The Most Recent Financials have been prepared in accordance with GAAP applied on a consistent basis throughout the periods indicated (except as may be indicated in the notes thereto), (ii) will fairly present, in all material respects, the financial position, results of operations and cash flows of the Group Companies as at the date thereof and for the period indicated thereinomission of disclosure notes and year-end adjustments) and the Company and its Subsidiaries’ past principles, except as otherwise specifically noted therein, practices and procedures for preparing financial statements for interim periods. The Historical Financials (iiiincluding the notes) will be audited in accordance with the standards of the PCAOB and will contain an unqualified report of the Company’s auditors, and (iv) will comply present fairly in all material respects with the applicable accounting requirements and with the rules and regulations financial condition of the SEC, the Exchange Act Company and its Subsidiaries as of such dates and the Securities Act in effect as results of operations of the respective dates thereof (including Regulation S-X or Regulation S-K, as applicable).
(c) Except (i) as set forth on the face of the Latest Balance Sheet, (ii) Company and its Subsidiaries for Liabilities incurred in the ordinary course of business since the Latest Balance Sheet Date (none of which is a Liability for breach of contract, breach of warranty, tort, infringement or violation of Law), (iii) for Liabilities incurred in connection with the negotiation, preparation or execution of this Agreement or any Ancillary Documents, the performance of their respective covenants or agreements in this Agreement or any Ancillary Document or the consummation of the transactions contemplated hereby or thereby such periods. The Company and (iv) for Liabilities that are not and would not reasonably be expected to be, individually or in the aggregate, material to the Group Companies, taken as a whole, no Group Company has any Liabilities of the type required to be set forth on a balance sheet in accordance with GAAP.
(d) The Group Companies its Subsidiaries have established and maintain maintained systems of internal accounting controls that are designed sufficient to provide, in all material respects, provide reasonable assurance assurances that (iA) all transactions are executed in accordance with management’s authorization and general or specific authorization, (iiB) all transactions are recorded as necessary to permit the preparation of proper annual and accurate interim financial statements in accordance conformity with GAAP and to maintain proper accountability for items, and (C) access to their property and assets is permitted only in accordance with management’s general or specific authorization, in each case except where the Group Companies’ assets. The Group Companies maintain and, for all periods covered by the Financial Statements, failure to do so would not reasonably be expected to have maintained books and records of the Group Companies in the ordinary course of business that are accurate and complete and reflect the revenues, expenses, assets and liabilities of the Group Companies in all material respects.
(e) Except as set forth in Section 3.4(e) of the Company Disclosure Schedule, since the incorporation of a Material Adverse Effect on the Company, no Group Company has received any written complaint, allegation, assertion or claim that there is (i) “significant deficiency” in the internal controls over financial reporting of the Group Companies, (ii) a “material weakness” in the internal controls over financial reporting of the Group Companies or (iii) fraud, whether or not material, that involves management or other employees of the Group Companies who have a significant role in the internal controls over financial reporting of the Group Companies.
Appears in 1 contract
Financial Statements; Undisclosed Liabilities. (a) The Company has made available to HighCape a true True, complete and complete copy correct copies of (i) the audited consolidated balance sheets sheet of the Group Companies Galaxy and its Subsidiaries as of at December 31, 20192013, as well as the audited consolidated balance sheet of Galaxy Brands, LLC and its Subsidiaries as at May 13, 2013 and December 31, 2012, and the related audited consolidated statements of operations and comprehensive lossincome, convertible preferred stock and retained earnings, stockholders’ deficit equity and cash flows changes in financial position of Galaxy and its Subsidiaries or Galaxy Brands, LLC and its Subsidiaries, as applicable, together with all related notes and schedules thereto, accompanied by the Group Companies for each reports thereon of the periods then ended, Galaxy’s independent auditors (ii) the unaudited consolidated balance sheets of the Group Companies collectively referred to as of December 31, 2020, and the related unaudited consolidated statements of operations and comprehensive loss, convertible preferred stock and stockholders’ deficit and cash flows of the Group Companies for the twelve (12)-month period then ended, and (iii) the unaudited consolidated balance sheets of the Group Companies as of December 31, 2019 and December 31, 2020 (the “Latest Balance Sheet”) and the related unaudited consolidated statements of operations and comprehensive loss, convertible preferred stock and stockholders’ deficit and cash flows of the Group Companies for each of the periods then ended (clauses (i), (ii), and (iii) are collectively, the “Financial Statements”) and the unaudited consolidated balance sheet of Galaxy and its Subsidiaries as at March 31, 2014 and the related consolidated statements of income, retained earnings, stockholders’ equity and changes in financial position of Galaxy and its Subsidiaries, together with all related notes and schedules thereto (collectively referred to as the “Interim Financial Statements”), each of which are attached hereto as Section 3.4(a3.6(a) of the Company Galaxy Disclosure SchedulesSchedule. Each of the Financial Statements and the Interim Financial Statements (including the notes theretoi) (A) was have been prepared in accordance with GAAP applied on a consistent basis throughout the periods indicated (except as may be indicated in the notes theretothereto and except in the case of the Interim Financial Statements for the absence of notes and other presentation items), ; and (Bii) fairly presentspresent, in all material respects, the consolidated financial position, results of operations and cash flows of the Group Companies Galaxy and its Subsidiaries or Galaxy Brands, LLC and its Subsidiaries, as applicable, as at the date respective dates thereof and for the period respective periods indicated therein, except as otherwise specifically noted thereintherein and subject, and (C) in the case of the Financial Statements included in clause (iii) only, were prepared in accordance with the standards of the PCAOB, and comply in all material respects with the applicable accounting requirements and with the rules and regulations of the SEC, the Exchange Act and the Securities Act in effect as of the respective dates thereof (including Regulation S-X or Regulation S-K, as applicable).
(b) The audited consolidated balance sheets of the Group Companies as of December 31, 2019 and December 31, 2020, and the related audited consolidated statements of operations and comprehensive loss, convertible preferred stock and stockholders’ deficit and cash flows of the Group Companies for each of the periods then ended (the “Closing Company Audited Interim Financial Statements”), when delivered following the date of this Agreement in accordance with Section 5.17, (i) to normal year-end adjustments that will be prepared in accordance with GAAP applied on a consistent basis throughout the periods indicated (except as may be indicated in the notes thereto), (ii) will fairly present, in all material respects, the financial position, results of operations and cash flows of the Group Companies as at the date thereof and for the period indicated therein, except as otherwise specifically noted therein, (iii) will be audited in accordance with the standards of the PCAOB and will contain an unqualified report of the Company’s auditors, and (iv) will comply in all material respects with the applicable accounting requirements and with the rules and regulations of the SEC, the Exchange Act and the Securities Act in effect as of the respective dates thereof (including Regulation S-X or Regulation S-K, as applicable).
(c) Except (i) as set forth on the face of the Latest Balance Sheet, (ii) for Liabilities incurred in the ordinary course of business since the Latest Balance Sheet Date (none of which is a Liability for breach of contract, breach of warranty, tort, infringement or violation of Law), (iii) for Liabilities incurred in connection with the negotiation, preparation or execution of this Agreement or any Ancillary Documents, the performance of their respective covenants or agreements in this Agreement or any Ancillary Document or the consummation of the transactions contemplated hereby or thereby and (iv) for Liabilities that are not and would not reasonably be expected to benot, individually or in the aggregate, be material. From May 13, 2013 until the date of this Agreement, there has been no material change in any accounting policies, principles, methods or practices, including any such change with respect to the Group Companiesreserves (whether with respect to bad debts, taken contingent liabilities or otherwise), of Galaxy or its Subsidiaries, except as a whole, no Group Company has any Liabilities of the type required to be set forth on a balance sheet in accordance with by GAAP.
(db) The Group Companies have established There are no material liabilities or obligations of Galaxy or any of its Subsidiaries of any kind or nature that would be required by GAAP to be reflected on the audited consolidated balance sheet of Galaxy and maintain systems of internal accounting controls that are designed to provideits Subsidiaries as at December 31, in all material respects2013 (such balance sheet, reasonable assurance that the “Balance Sheet”), other than (i) all transactions are executed liabilities or obligations adequately reflected or reserved against in accordance with management’s authorization the Balance Sheet or in the notes thereto and (ii) all transactions are recorded as necessary to permit preparation of proper and accurate financial statements in accordance with GAAP and to maintain accountability for liabilities or obligations that were incurred since the Group Companies’ assets. The Group Companies maintain and, for all periods covered by the Financial Statements, have maintained books and records date of the Group Companies Balance Sheet in the ordinary course of business that are accurate and complete and reflect the revenues, expenses, assets and liabilities of the Group Companies in all material respectsconsistent with past practice.
(e) Except as set forth in Section 3.4(e) of the Company Disclosure Schedule, since the incorporation of the Company, no Group Company has received any written complaint, allegation, assertion or claim that there is (i) “significant deficiency” in the internal controls over financial reporting of the Group Companies, (ii) a “material weakness” in the internal controls over financial reporting of the Group Companies or (iii) fraud, whether or not material, that involves management or other employees of the Group Companies who have a significant role in the internal controls over financial reporting of the Group Companies.
Appears in 1 contract
Financial Statements; Undisclosed Liabilities. (a) The Company has made available to HighCape a true True and complete copy of (i) the audited consolidated balance sheets of the Group Companies as of December 31, 2019, and the related audited consolidated statements of operations and comprehensive loss, convertible preferred stock and stockholders’ deficit and cash flows of the Group Companies for each of the periods then ended, (ii) the unaudited consolidated balance sheets of the Group Companies as of December 31, 2020, and the related unaudited consolidated statements of operations and comprehensive loss, convertible preferred stock and stockholders’ deficit and cash flows of the Group Companies for the twelve (12)-month period then ended, and (iii) the unaudited consolidated balance sheets of the Group Companies as of December 31, 2019 and December 31, 2020 (the “Latest Balance Sheet”) and the related unaudited consolidated statements of operations and comprehensive loss, convertible preferred stock and stockholders’ deficit and cash flows of the Group Companies for each of the periods then ended (clauses (i), (ii), and (iii) are collectively, the “Financial Statements”), each of which are attached as Section 3.4(a) of the Company Disclosure Schedules. Each copies of the Financial Statements (including the notes thereto) (A) was are attached hereto on Schedule 4.4(a)(i). The Audited Financial Statements were prepared in accordance with U.S. GAAP applied on a consistent basis throughout the periods indicated (except as may be indicated in the notes thereto), (B) fairly presents, in all material respects, the financial position, results of operations and cash flows of the Group Companies as at the date thereof and for the period indicated thereinindicated, except as otherwise specifically noted therein, . The Management Accounts and (C) in the case of the Financial Statements included in clause (iii) only, SAF Packs were prepared in accordance with the standards of the PCAOB, and comply in all material respects with the applicable accounting requirements and with the rules and regulations of the SEC, the Exchange Act and the Securities Act in effect as of the respective dates thereof (including Regulation S-X or Regulation S-K, as applicable).
(b) The audited consolidated balance sheets of the Group Companies as of December 31, 2019 and December 31, 2020, and the related audited consolidated statements of operations and comprehensive loss, convertible preferred stock and stockholders’ deficit and cash flows of the Group Companies for each of the periods then ended (the “Closing Company Audited Financial Statements”), when delivered following the date of this Agreement in accordance with Section 5.17, (i) will be prepared in accordance with UK GAAP applied on a consistent basis throughout the periods indicated period indicated, and in accordance with the Operating Companies’ past practices, policies and procedures. Except (except with respect to the Audited Financial Statements) as may be indicated in the notes theretoset forth on Schedule 4.4(a)(ii), (ii) will the Financial Statements fairly present, in all material respects, the financial position, results of operations operations, shareholders’ equity and cash flows of the Group Operating Companies as at of the date thereof dates and for the period periods indicated therein, except as otherwise specifically noted therein, (iii) will be audited in accordance with the standards of the PCAOB and will contain an unqualified report of the Company’s auditors, and (iv) will comply accurately reflect in all material respects with the applicable accounting requirements books and with the rules and regulations records of the SEC, the Exchange Act Operating Companies and the Securities Act in effect as of the respective dates thereof (including Regulation S-X or Regulation S-K, as applicable)their Subsidiaries.
(cb) Except There are no material liabilities or obligations of the Companies of any nature, whether or not accrued, contingent or otherwise, that would be required to be reflected on a consolidated balance sheet of the Companies prepared in accordance with UK GAAP, other than those that (i) as set forth on are reflected or reserved against in the face of most recent balance sheet included in the Latest Balance Sheet, Financial Statements; (ii) for Liabilities have been incurred in the ordinary course of the business consistent with past practice since the Latest Balance Sheet Date (none of which is a Liability for breach of contractOctober 31, breach of warranty, tort, infringement or violation of Law), (iii) for Liabilities incurred in connection with the negotiation, preparation or execution of this Agreement or any Ancillary Documents, the performance of their respective covenants or agreements in this Agreement or any Ancillary Document or the consummation of the transactions contemplated hereby or thereby and (iv) for Liabilities that are not and would not reasonably be expected to be, individually or in the aggregate, material to the Group Companies, taken as a whole, no Group Company has any Liabilities of the type required to be set forth on a balance sheet in accordance with GAAP.
(d) The Group Companies have established and maintain systems of internal accounting controls that are designed to provide, in all material respects, reasonable assurance that (i) all transactions are executed in accordance with management’s authorization and (ii) all transactions are recorded as necessary to permit preparation of proper and accurate financial statements in accordance with GAAP and to maintain accountability for the Group Companies’ assets. The Group Companies maintain and, for all periods covered by the Financial Statements, have maintained books and records of the Group Companies in the ordinary course of business that are accurate and complete and reflect the revenues, expenses, assets and liabilities of the Group Companies in all material respects.
(e) Except as set forth in Section 3.4(e) of the Company Disclosure Schedule, since the incorporation of the Company, no Group Company has received any written complaint, allegation, assertion or claim that there is (i) “significant deficiency” in the internal controls over financial reporting of the Group Companies, (ii) a “material weakness” in the internal controls over financial reporting of the Group Companies 2012; or (iii) fraudhave been incurred pursuant to this Agreement.
(c) No Company is a party to, whether or not materialhas any commitment to become a party to, that involves management any joint venture, off balance sheet partnership or any similar Contract (including any Contract relating to any transaction or relationship between or among any Company, on the one hand, and any unconsolidated Affiliate, including any structured finance, special purpose or limited purpose entity or Person, on the other employees hand, or any “off balance sheet arrangements” (as defined in Item 303(a) of Regulation S-K under the Group Companies who have a significant role U.S. Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder (collectively, the “Exchange Act”))), where the result, purpose or intended effect of such Contract is to avoid disclosure of any material transaction involving, or material liabilities of, any Company in the internal controls over financial reporting of the Group Companiesstatements.
Appears in 1 contract
Sources: Stock Purchase Agreement (Bway Intermediate Company, Inc.)
Financial Statements; Undisclosed Liabilities. (a) The Company has made available to HighCape SPAC a true true, correct and complete copy of (i) the audited consolidated balance sheets of the Group Companies (other than Merger Subs) as of December 31, 2019, and the related audited consolidated statements of operations and comprehensive loss, convertible preferred stock and stockholders’ deficit and cash flows of the Group Companies for each of the periods then ended, (ii) the unaudited consolidated balance sheets of the Group Companies as of December 31, 2020, and the related unaudited consolidated statements of operations and comprehensive loss, convertible preferred stock and stockholders’ deficit and cash flows of the Group Companies for the twelve (12)-month period then ended, and (iii) the unaudited consolidated balance sheets of the Group Companies as of December 31, 2019 and December 31, 2020 2021 (the “Latest Balance Sheet”) and December 31, 2020 and the related unaudited audited consolidated statements of operations and comprehensive lossoperations, convertible preferred stock and stockholders’ deficit unitholders surplus/deficit, and cash flows of the Group Companies (other than Merger Sub) for each of the periods years then ended (clauses (i), (ii), and (iii) are collectively, the “Company Financial Statements”), each of which are attached as Section 3.4(a) of the Company Disclosure Schedules. Each of the Company Financial Statements (including the notes thereto) (A) was prepared in accordance with GAAP applied on a consistent basis throughout the periods indicated (except as may be indicated in the notes thereto), (B) fairly presents, in all material respects, the financial position, results of operations and cash flows of the Group Companies as at the date thereof and for the period indicated therein, except as otherwise specifically noted therein, and (C) in the case of the Financial Statements included in clause (iii) only, were prepared in accordance with the standards of the PCAOB, and comply in all material respects with the applicable accounting requirements and with the rules and regulations of the SEC, the Exchange Act and the Securities Act in effect as of the respective dates thereof (including Regulation S-X or Regulation S-K, as applicable).
(b) The audited consolidated balance sheets of the Group Companies as of December 31, 2019 and December 31, 2020, and the related audited consolidated statements of operations and comprehensive loss, convertible preferred stock and stockholders’ deficit and cash flows of the Group Companies for each of the periods then ended (the “Closing Company Audited Financial Statements”), when delivered following the date of this Agreement in accordance with Section 5.17, (i) will be were prepared in accordance with GAAP applied on a consistent basis throughout the periods indicated (except as may be indicated in the notes thereto), (ii) will is based upon and consistent with the information contained in the books and records of the Group Companies (other than Merger Sub) and (iii) fairly presentpresents, in all material respectsrespects in accordance with GAAP, the consolidated financial position, results of operations and cash flows of the Group Companies (other than Merger Subs) as at the date thereof and for the period indicated therein, therein (except as otherwise specifically noted therein, ).
(iiib) The financial statements or similar reports required to be included in the Registration Statement/Proxy Statement (including the Company Financial Statements) (i) will be audited prepared in accordance with GAAP applied on a consistent basis throughout the standards periods indicated (except as may be indicated in the notes thereto and subject to, in the case of any unaudited financial statements, normal year-end audit adjustments (none of which are, individually or in the PCAOB aggregate, material) and will contain an unqualified report the absence of the Company’s auditorsnotes thereto), and (ivii) will comply fairly present, in all material respects in accordance with GAAP, the applicable accounting requirements consolidated financial position, results of operations, unitholders surplus/deficit, and with the rules and regulations cash flows of the SEC, Company as at the Exchange Act date thereof and for the Securities Act in effect period indicated therein (except as otherwise specifically noted therein and subject to normal year-end audit adjustments and absence of the respective dates thereof (including Regulation S-X or Regulation S-K, as applicablefootnotes).
(c) Except (i) as set forth on the face of or otherwise provided for in the Latest Balance SheetSheet (and in the notes thereto), (ii) for Liabilities incurred in the ordinary course of business since the date of the Latest Balance Sheet Date (none of which is relate to a Liability for material breach of contract, material breach of warranty, tort, infringement or material violation of Law), ) and (iii) for Liabilities incurred in connection with the negotiation, preparation or execution of this Agreement or any Ancillary Documents, the performance by any of their respective the Group Companies of its covenants or agreements in this Agreement or any Ancillary Document to which it is or will be a party or the consummation of the transactions contemplated hereby or thereby and Transactions (iv) including, for the avoidance of doubt, the payment of any Company Expenses), no Group Company has any Liabilities that are not and would not reasonably be expected required to be, individually or be set forth on a consolidated balance sheet of the Group Companies prepared in the aggregate, accordance with GAAP that would be material to the Group Companies, taken as a whole, no Group Company has any Liabilities of the type required to be set forth on a balance sheet in accordance with GAAP.
(d) The Group Companies have established and maintain systems of internal accounting controls that are designed to provide, in all material respects, reasonable assurance that (i) all transactions are executed in accordance with management’s authorization and (ii) all transactions are recorded as necessary to permit preparation of proper and accurate financial statements in accordance with GAAP and to maintain accountability for the Group Companies’ consolidated assets. The Group Companies maintain and, for all periods covered by the Company Financial Statements, have maintained books and records of the Group Companies Company in the ordinary course of business that are accurate and complete and reflect the consolidated revenues, expenses, assets and liabilities of the Group Companies in all material respects.
(e) Except as set forth in Section 3.4(e) of Since January 1, 2020 (the “Relevant Date”), the Company Disclosure Schedulehas not received any written complaint or, since to the incorporation knowledge of the Company, no Group Company has received any written complaint, other allegation, assertion or claim that there is (i) “significant deficiency” in the internal controls over financial reporting of the Group Companies, (ii) a “material weakness” in the internal controls over financial reporting of the Group Companies or (iii) fraud, whether or not material, that involves management or other employees of the Group Companies who have a significant role in the internal controls over financial reporting of the Group Companies.
Appears in 1 contract
Sources: Transaction Agreement (Riverview Acquisition Corp.)
Financial Statements; Undisclosed Liabilities. (a) The Company has made available to HighCape a SPAC an accurate, true and complete copy of (i) the audited consolidated balance sheets of the Group Companies and the Reciprocal as of December 31, 2019, December 31, 2020 and the related audited consolidated unaudited statements of operations and comprehensive lossoperations, convertible preferred stock and stockholderschanges in shareholders’ deficit equity and cash flows of the Group Companies and the Reciprocal for each of the periods then ended, (ii) the unaudited consolidated balance sheets of the Group Companies as of December 31, 2020, and the related unaudited consolidated statements of operations and comprehensive loss, convertible preferred stock and stockholders’ deficit and cash flows of the Group Companies for the twelve (12)-month period then ended, and (iii) the unaudited consolidated balance sheets of the Group Companies as of December 31, 2019 and December 31, 2020 ended (the “Latest Balance Sheet”) and (ii) an unaudited consolidated balance sheet and the related unaudited consolidated statements of operations and comprehensive lossoperations, convertible preferred stock and stockholderschanges in shareholders’ deficit equity and cash flows of the Group Companies and the Reciprocal for each of the periods then three (3) month period ended March 31, 2021 (clauses (i), ) and (ii), and (iii) are collectively, the “Financial Statements”), each of which are attached as Section 3.4(a) of the Company Disclosure Schedules. Each of the The Financial Statements (including the notes thereto) (A) was of the Company were prepared in accordance with GAAP applied on a consistent basis throughout the periods indicated (except as may be indicated in the notes thereto), (B) fairly presents, in all material respects, the financial position, results of operations and cash flows of the Group Companies as at the date thereof and for the period indicated therein, except as otherwise specifically noted therein, and (C) in the case of the Financial Statements included in clause (iiiincluding the notes thereto) only, of the Reciprocal were prepared in accordance with the standards of the PCAOB, and comply in all material respects with the applicable accounting requirements and with the rules and regulations of the SEC, the Exchange Act and the Securities Act in effect as of the respective dates thereof (including Regulation S-X or Regulation S-K, as applicable).
(b) The audited consolidated balance sheets of the Group Companies as of December 31, 2019 and December 31, 2020, and the related audited consolidated statements of operations and comprehensive loss, convertible preferred stock and stockholders’ deficit and cash flows of the Group Companies for each of the periods then ended (the “Closing Company Audited Financial Statements”), when delivered following the date of this Agreement in accordance with Section 5.17, (i) will be prepared in accordance with GAAP Statutory Accounting Principles applied on a consistent basis throughout the periods indicated (except as may be indicated in the notes thereto). Each of the Financial Statements (including the notes thereto) (A) is based upon and consistent with information contained in the books and records of the Company (which books and records are in turn accurate, correct and complete) and (iiB) will fairly present, presents in all material respects, respects the financial position, results of operations and cash flows of the Group Companies and the Reciprocal as at the date thereof and for the period indicated therein, except as otherwise specifically noted thereintherein (subject, in the case of any unaudited interim financial statements, to normal year-end audit adjustments (iiinone of which is expected to be material) will be audited in accordance with the standards of the PCAOB and will contain an unqualified report of the Company’s auditors, and (iv) will comply in all material respects with the applicable accounting requirements and with the rules and regulations of the SEC, the Exchange Act and the Securities Act in effect as absence of the respective dates thereof (including Regulation S-X or Regulation S-K, as applicablefootnotes).
(cb) Except (i) as set forth on the face of the Latest Balance Sheet, (ii) for Liabilities incurred in the ordinary course of business since the date of the Latest Balance Sheet Date (none of which is a Liability for breach of contract, breach of warranty, tort, infringement or violation of Law), ) and (iii) for Liabilities incurred in connection with the negotiation, preparation or execution of this Agreement or any Ancillary Documents, the performance of their respective covenants or agreements in this Agreement or any Ancillary Document or the consummation of the transactions contemplated hereby or thereby and (iv) for Liabilities that are not and would not reasonably be expected to beTransactions, individually or in the aggregate, material to none of the Group Companies, taken as a whole, no Group Company Companies nor the Reciprocal has any Liabilities of the type required to be set forth on a balance sheet in accordance with GAAP.
(dc) The Each of the Group Companies and the Reciprocal have established and maintain systems of internal accounting controls that are designed to provide, in all material respects, reasonable assurance that (i) all transactions are executed in accordance with management’s authorization and (ii) all transactions are recorded as necessary to permit preparation of proper and accurate financial statements in accordance with GAAP and to maintain accountability for the Group Companies’ assets. The Each of the Group Companies and the Reciprocal maintain and, for all periods covered by the Financial Statements, have maintained books and records of the Group Companies and the Reciprocal in the ordinary course of business that are accurate and complete and reflect the revenues, expenses, assets and liabilities of the Group Companies and the Reciprocal in all material respects.
(ed) Except as set forth in Section 3.4(e3.4(d) of the Company Disclosure ScheduleSchedules, since the incorporation January 1, 2018, neither any of the Company, no Group Company Companies nor the Reciprocal has received any written complaint, or, to the knowledge of the Company, any allegation, assertion or claim that there is (i) a “significant deficiency” in the internal controls over financial reporting of the Group CompaniesCompanies and/or the Reciprocal, (ii) a “material weakness” in the internal controls over financial reporting of the Group Companies or the Reciprocal or (iii) fraud, whether or not material, that involves management or other employees of the Group Companies or the Reciprocal who have a significant role in the internal controls over financial reporting of the Group CompaniesCompanies and/or the Reciprocal.
Appears in 1 contract
Sources: Business Combination Agreement (Omnichannel Acquisition Corp.)
Financial Statements; Undisclosed Liabilities. (a) The Company has made available to HighCape a true and complete copy Copies of the Company’s (i) consolidated audited financial statements consisting of the audited consolidated balance sheets sheet of the Group Companies Company and the Company Subsidiaries as of December 3131 in each of the years 2017, 2019, 2016 and 2015 and the related audited consolidated statements of operations and comprehensive lossoperations, convertible preferred stock and stockholdersmembers’ deficit equity and cash flows of for the Group Companies for each of years then ended (the periods then ended, “Audited Financial Statements”) and (ii) the consolidated unaudited consolidated balance sheets financial statements consisting of the Group Companies consolidated unaudited balance sheet of the Company and the Company Subsidiaries as of December 31June 30, 2020, 2018 and the related consolidated unaudited consolidated statements income statement and statement of operations and comprehensive loss, convertible preferred stock and stockholders’ deficit and cash flows of the Group Companies for the twelve (12)-month six-month period then ended, and (iii) the unaudited consolidated balance sheets of the Group Companies as of December 31, 2019 and December 31, 2020 ended (the “Latest Balance Sheet”) Interim Financial Statements” and together with the related unaudited consolidated statements of operations and comprehensive loss, convertible preferred stock and stockholders’ deficit and cash flows of the Group Companies for each of the periods then ended (clauses (i), (ii), and (iii) are collectivelyAudited Financial Statements, the “Financial Statements”)) have previously been delivered and/or made available to Buyer. The Financial Statements have been derived from, each of which and are attached as Section 3.4(a) consistent with, the books and records of the Company Disclosure Schedules. Each of and the Financial Statements (including the notes thereto) (A) was Company Subsidiaries and have been prepared in accordance with GAAP applied on a consistent basis throughout the periods indicated (except as may be indicated period involved, subject, in the case of the Interim Financial Statements, to normal and recurring year-end adjustments (none of which would be material, individually or in the aggregate) and the absence of notes thereto(that, if presented, would not differ materially from those included in the Audited Financial Statements), (B) fairly presentsand, on that basis, present fairly, in all material respects, the financial position, results of operations and cash flows condition of the Group Companies as at the date thereof and for the period indicated therein, except as otherwise specifically noted therein, and (C) in the case of the Financial Statements included in clause (iii) only, were prepared in accordance with the standards of the PCAOB, and comply in all material respects with the applicable accounting requirements and with the rules and regulations of the SEC, the Exchange Act Company and the Securities Act in effect Company Subsidiaries as of the respective dates they were prepared and the results of the operations of the Company and the Company Subsidiaries for the periods indicated. No financial statements of any Person other than the Company or the Company Subsidiaries are required by GAAP to be included or reflected in any of the foregoing financial statements. The Company has also delivered to Buyer true, correct and complete copies of all letters from the Company’s auditors to the Company’s board of managers or audit committee thereof (including Regulation S-X or Regulation S-Kduring the twelve months prior to the date of this Agreement, as applicable)together with true, correct and complete copies of all responses thereto.
(b) The audited consolidated balance sheets Company and the Company Subsidiaries have no Liabilities, except: (i) those which are adequately reflected or reserved against on the Audited Balance Sheet as of the Group Companies as of December 31, 2019 and December 31, 2020, and the related audited consolidated statements of operations and comprehensive loss, convertible preferred stock and stockholders’ deficit and cash flows of the Group Companies for each of the periods then ended 2017 (the “Closing Company Audited Financial StatementsBalance Sheet Date”), when delivered following the date of this Agreement in accordance with Section 5.17, (i) will be prepared in accordance with GAAP applied on a consistent basis throughout the periods indicated (except as may be indicated in the notes thereto), and (ii) will fairly present, in all material respects, the financial position, results of operations and cash flows of the Group Companies as at the date thereof and for the period indicated therein, except as otherwise specifically noted therein, (iii) will be audited in accordance with the standards of the PCAOB and will contain an unqualified report of the Company’s auditors, and (iv) will comply in all material respects with the applicable accounting requirements and with the rules and regulations of the SEC, the Exchange Act and the Securities Act in effect as of the respective dates thereof (including Regulation S-X or Regulation S-K, as applicable).
(c) Except (i) as set forth on the face of the Latest Balance Sheet, (ii) for Liabilities those which have been incurred in the ordinary course of business since the Latest Audited Balance Sheet Date (none of which is a Liability for relate to breach of contract, breach of warranty, tort, infringement or infringement, violation of Law), (iii) for Liabilities incurred in connection with the negotiation, preparation or execution of this Agreement liability under any Law or any Ancillary DocumentsAction, the performance none of their respective covenants or agreements in this Agreement or any Ancillary Document or the consummation of the transactions contemplated hereby or thereby and (iv) for Liabilities that which are not and would not reasonably be expected to be, material individually or in the aggregate, material to and all of which will be included in the Group Companies, taken as a whole, no Group calculation of Closing Working Capital). The Company has and the Company Subsidiaries do not maintain any Liabilities “off-balance sheet arrangement” within the meaning of Item 303(a)(4)(ii) of Regulation S-K of the type required to be set forth on a balance sheet in accordance with GAAPSecurities and Exchange Commission.
(d) The Group Companies have established and maintain systems of internal accounting controls that are designed to provide, in all material respects, reasonable assurance that (i) all transactions are executed in accordance with management’s authorization and (ii) all transactions are recorded as necessary to permit preparation of proper and accurate financial statements in accordance with GAAP and to maintain accountability for the Group Companies’ assets. The Group Companies maintain and, for all periods covered by the Financial Statements, have maintained books and records of the Group Companies in the ordinary course of business that are accurate and complete and reflect the revenues, expenses, assets and liabilities of the Group Companies in all material respects.
(e) Except as set forth in Section 3.4(e) of the Company Disclosure Schedule, since the incorporation of the Company, no Group Company has received any written complaint, allegation, assertion or claim that there is (i) “significant deficiency” in the internal controls over financial reporting of the Group Companies, (ii) a “material weakness” in the internal controls over financial reporting of the Group Companies or (iii) fraud, whether or not material, that involves management or other employees of the Group Companies who have a significant role in the internal controls over financial reporting of the Group Companies.
Appears in 1 contract
Financial Statements; Undisclosed Liabilities. (a) The Company Acadia has made available delivered to HighCape a true and complete copy of Pioneer its (i) the audited consolidated financial statements (including balance sheets sheet, statement of operations and statement of cash flows) as at and for the Group Companies as of twelve-month periods ended December 31, 20192008, 2009 and 2010, and the related audited consolidated statements of operations and comprehensive loss, convertible preferred stock and stockholders’ deficit and cash flows of the Group Companies for each of the periods then ended, (ii) the unaudited consolidated balance sheets of financial statements for the Group Companies as of December three-month period ending March 31, 20202011 (such audited and unaudited financial statements, and the related unaudited consolidated statements of operations and comprehensive loss, convertible preferred stock and stockholders’ deficit and cash flows of the Group Companies for the twelve (12)-month period then ended, and (iii) the unaudited consolidated balance sheets of the Group Companies as of December 31, 2019 and December 31, 2020 (the “Latest Balance Sheet”) and the related unaudited consolidated statements of operations and comprehensive loss, convertible preferred stock and stockholders’ deficit and cash flows of the Group Companies for each of the periods then ended (clauses (i), (ii), and (iii) are collectively, the “Financial StatementsAcadia Financials”).
(b) Acadia has delivered to Pioneer (i) audited consolidated financial statements (including balance sheet, statement of operations and statement of cash flows) as at and for the twelve-month periods ended December 31, 2008, 2009 and 2010, and (ii) unaudited consolidated financial statements for the three-month period ending March 31, 2011, in each case of which are attached as Section 3.4(aYouth & Family Centered Services, Inc. (such audited and unaudited financial statements, collectively, the “YFCS Financials”).
(c) of the Company Disclosure Schedules. Each of the Financial Statements financial statements (including the including, in each case, any notes thereto) (A) comprising the Acadia Financials and the YFCS Financials was prepared in accordance with GAAP United States generally accepted accounting principles (“GAAP”) applied on a consistent basis throughout the periods indicated (except as may be indicated in the notes theretothereto or, in the case of unaudited statements, subject to the absence of notes and normal and recurring year-end adjustments), (B) and each fairly presents, in all material respects, the consolidated financial position, results of operations and cash flows of the Group Companies Acadia and its consolidated Subsidiaries as at the date respective dates thereof and for the period respective periods indicated therein, except as otherwise specifically noted thereintherein (subject, and (C) in the case of unaudited statements, to the Financial Statements included in clause absence of notes and normal and recurring year-end adjustments).
(iiid) onlyThe records, were systems, controls, data and information of Acadia and its Subsidiaries are recorded, stored, maintained and operated under means (including any electronic, mechanical or photographic process, whether computerized or not) that are under the exclusive ownership and direct control of Acadia or its Subsidiaries or their accountants (including all means of access thereto and therefrom), except for any non-exclusive ownership and non-direct control that would not have a material adverse effect on Acadia’s system of internal accounting controls.
(e) Neither Acadia nor any Subsidiary of Acadia has any material liability or obligation of a nature required to be reflected on the face of a balance sheet prepared in accordance with GAAP (and not including any notes thereto), except for liabilities and obligations (i) reflected or reserved against on the standards of the PCAOB, and comply in all material respects with the applicable accounting requirements and with the rules and regulations of the SEC, the Exchange Act and the Securities Act in effect as of the respective dates thereof (including Regulation S-X or Regulation S-K, as applicable).
(b) The audited consolidated balance sheets sheet of the Group Companies Acadia or its Subsidiaries as of December 31, 2019 and 2010 or on the consolidated balance sheet of Acadia or its Subsidiaries as of ▇▇▇▇▇ ▇▇, ▇▇▇▇, (▇▇) reflected or reserved against on the audited consolidated balance sheet included in the YFCS Financial Statements as of December 31, 20202010 or on the consolidated balance sheet included in the YFCS Financial Statements as of ▇▇▇▇▇ ▇▇, and the related audited consolidated statements of operations and comprehensive loss, convertible preferred stock and stockholders’ deficit and cash flows of the Group Companies for each of the periods then ended (the “Closing Company Audited Financial Statements”), when delivered following the date of this Agreement in accordance with Section 5.17▇▇▇▇, (i▇▇▇) will be prepared incurred in accordance with GAAP applied on a consistent basis throughout the periods indicated (except as may be indicated in the notes thereto), (ii) will fairly present, in all material respects, the financial position, results of operations and cash flows of the Group Companies as at the date thereof and for the period indicated therein, except as otherwise specifically noted therein, (iii) will be audited in accordance connection with the standards of the PCAOB and will contain an unqualified report of the Company’s auditorsTransactions, and or (iv) will comply in all material respects with the applicable accounting requirements and with the rules and regulations of the SEC, the Exchange Act and the Securities Act in effect as of the respective dates thereof (including Regulation S-X or Regulation S-K, as applicable).
(c) Except (i) as set forth on the face of the Latest Balance Sheet, (ii) for Liabilities incurred in the ordinary course of business since the Latest Balance Sheet Date (none of which is a Liability for breach of contractDecember 31, breach of warranty, tort, infringement or violation of Law), (iii) for Liabilities incurred in connection with the negotiation, preparation or execution of this Agreement or any Ancillary Documents, the performance of their respective covenants or agreements in this Agreement or any Ancillary Document or the consummation of the transactions contemplated hereby or thereby and (iv) for Liabilities 2010 that are not and would not reasonably be expected to be, individually or in the aggregate, material to the Group Companies, taken as a whole, no Group Company has any Liabilities of the type required to be have an Acadia Material Adverse Effect.
(f) Acadia’s Net Debt does not exceed $163,000,000. No items set forth on a balance sheet in accordance with GAAPthe Acadia Disclosure Schedule shall qualify this Section 3.07(f).
(d) The Group Companies have established and maintain systems of internal accounting controls that are designed to provide, in all material respects, reasonable assurance that (i) all transactions are executed in accordance with management’s authorization and (ii) all transactions are recorded as necessary to permit preparation of proper and accurate financial statements in accordance with GAAP and to maintain accountability for the Group Companies’ assets. The Group Companies maintain and, for all periods covered by the Financial Statements, have maintained books and records of the Group Companies in the ordinary course of business that are accurate and complete and reflect the revenues, expenses, assets and liabilities of the Group Companies in all material respects.
(e) Except as set forth in Section 3.4(e) of the Company Disclosure Schedule, since the incorporation of the Company, no Group Company has received any written complaint, allegation, assertion or claim that there is (i) “significant deficiency” in the internal controls over financial reporting of the Group Companies, (ii) a “material weakness” in the internal controls over financial reporting of the Group Companies or (iii) fraud, whether or not material, that involves management or other employees of the Group Companies who have a significant role in the internal controls over financial reporting of the Group Companies.
Appears in 1 contract
Sources: Merger Agreement (PHC Inc /Ma/)
Financial Statements; Undisclosed Liabilities. (a) The Company has made available to HighCape a BHAC true and complete copy copies of (i) the audited unaudited consolidated balance sheets sheet of the Group Companies (other than New Rise) as of December 31, 2019, and 2023 (the related audited consolidated statements of operations and comprehensive loss, convertible preferred stock and stockholders’ deficit and cash flows of the Group Companies for each of the periods then ended, (ii“XCF Latest Balance Sheet”) the unaudited consolidated balance sheets of the Group Companies as of December 31, 2020, and the related unaudited consolidated statements of operations and comprehensive loss, convertible preferred stock and stockholders’ deficit and cash flows of the such Group Companies for the twelve (12)-month period then ended, and (iiiii) the unaudited consolidated balance sheets sheet of the Group Companies New Rise LLC and New Rise SAF as of December 31, 2019 2023 (the “New Rise Latest Balance Sheets”, and December 31together with the XCF Latest Balance Sheet, 2020 (the “Latest Balance Sheet”) and the related unaudited consolidated statements of operations and comprehensive loss, convertible preferred stock and stockholders’ deficit and cash flows of New Rise LLC and New Rise SAF for the Group Companies periods then ended and (iii) the audited consolidated balance sheet of New Rise LLC and New Rise SAF as of December 31, 2022 and the related audited consolidated statements of operations and comprehensive loss, stockholders’ deficit and cash flows of New Rise LLC and New Rise SAF for each of the periods then ended (clauses (i), (ii), and (iii) are collectively, the “Financial Statements”), each of which are attached as Section 3.4(a) of the Company Disclosure Schedules. Each of the Financial Statements (including the notes thereto) (Ai) was prepared in accordance with GAAP applied on a consistent basis throughout the periods indicated (except as may be indicated in the notes thereto), (Bii) fairly presents, in all material respects, the financial position, results of operations and cash flows of the Group Companies applicable entity(ies) as at the date thereof and for the period indicated therein, except as otherwise specifically noted therein, and (C) in the case of the Financial Statements included in clause (iii) only, were prepared in accordance with the standards of the PCAOB, and comply complies in all material respects with the applicable accounting requirements and with the rules and regulations of the SEC, the Exchange Act and the Securities Act in effect as of the respective dates thereof (including Regulation S-X or Regulation S-K, as applicable), and (iv) were prepared from and accurately reflect the books and records of the applicable entity(ies).
(b) The audited consolidated balance sheets of the Group Companies as of December 31, 2019 and December 31, 2020, and the related audited consolidated statements of operations and comprehensive loss, convertible preferred stock and stockholders’ deficit and cash flows of the Group Companies for each of the periods then ended (the “Closing Required Company Audited Financial Statements”), when delivered following the date of this Agreement in accordance with Section 5.17, (i) will be prepared in accordance with GAAP applied on a consistent basis throughout the periods indicated (except as may be indicated in the notes thereto and subject to, in the case of any unaudited financial statements, normal year-end audit adjustments and the absence of notes thereto, none of which are material individually or in the aggregate), (ii) will fairly present, in all material respects, the financial position, results of operations and cash flows of the Group Companies applicable entity(ies) as at the date dates thereof and for the period periods indicated therein, except as otherwise specifically noted thereintherein (subject to, in the case of any unaudited financial statements, normal year-end adjustments and the absence of notes thereto, none of which are material individually or in the aggregate), (iii) will be audited in accordance with the standards of the PCAOB and will contain an unqualified report of the Company’s auditors, and (iv) will comply in all material respects with the applicable accounting requirements and with the rules and regulations of the SEC, the Exchange Act and the Securities Act in effect as of the respective dates thereof (including Regulation S-X or Regulation S-K, as applicable), (iv) in the case of audited financial statements, will be audited in accordance with the standards of the PCAOB by a PCAOB qualified auditor that was independent under Rule 2-01 of Regulation S-X under the Securities Act and contain an unqualified report of the Company’s auditors, and (v) will have been prepared from and accurately reflect the books and records of the applicable entity(ies).
(c) Except (i) as set forth on Section 3.4(c) of the Company Disclosure Schedules, (ii) as set forth on the face of the Latest Balance Sheet, (iiiii) for Liabilities incurred in the ordinary course of business since the date of the Latest Balance Sheet Date (none of which exceeds $50,000 individually or $250,000 in the aggregate or is a Liability for breach of contract, breach of warranty, tort, infringement or violation of Law), (iiiiv) for Liabilities reflected and adequately reserved against in the Financial Statements (including the notes thereto), (v) for Liabilities incurred in connection with the negotiation, preparation or execution of this Agreement or any Ancillary Documents, the performance of their respective covenants or agreements in this Agreement or any Ancillary Document or the consummation of the transactions contemplated hereby or thereby and or (ivvi) for Liabilities that are not and would not reasonably be expected to be, individually or in the aggregate, material to the Group Companies, taken as a whole, no Group Company has any Liabilities of the type whether or not required by GAAP to be set forth on a balance sheet in accordance with GAAPsheet.
(d) The Except as set forth in Section 3.4(d) of the Company Disclosure Schedules, the Group Companies have established and maintain systems of internal accounting controls that are designed to provide, in all material respects, reasonable assurance that (i) all transactions are executed in accordance with management’s authorization and (ii) all transactions are recorded as necessary to permit preparation of proper and accurate financial statements in accordance with GAAP and to maintain accountability for the Group Companies’ assets. The Group Companies maintain and, for all periods covered by the Financial Statements, have maintained books and records of the Group Companies in the ordinary course of business that are accurate and complete and reflect the revenues, expenses, assets and liabilities of the Group Companies in all material respects.
(e) Except as set forth in Section 3.4(e) of the Company Disclosure ScheduleSchedules, since the incorporation formation of the Company, no Group Company has received any written complaint, allegation, assertion or claim that there is (i) “significant deficiency” in the internal controls over financial reporting of the Group CompaniesCompanies to the Company’s knowledge, (ii) a “material weakness” in the internal controls over financial reporting of the Group Companies or to the Company’s knowledge, (iii) fraud, whether or not material, that involves management or other employees of the Group Companies who have a significant role in the internal controls over financial reporting of the Group Companies, or (iv) any allegation, assertion or claim that the Company has engaged in any material questionable accounting or auditing practices which violate applicable Law.
(f) The Group Companies have established and maintain disclosure controls and procedures (as defined in Rule 13a-15 under the Exchange Act). Such disclosure controls and procedures are designed to ensure that material information relating to the Group Companies is made known to the appropriate principal executive officer and its principal financial officer. To the Company’s knowledge, such disclosure controls and procedures are effective in timely alerting the Company’s principal executive officer and principal financial officer to material information required to be included in the Company’s financial statements.
Appears in 1 contract
Sources: Business Combination Agreement (Focus Impact BH3 Acquisition Co)
Financial Statements; Undisclosed Liabilities. (ai) The Company has made available provided to HighCape a true Parent true, accurate and complete copy copies of the following financial statements (ithe “Financial Statements”): (A) the audited consolidated balance sheets of the Group Companies Company and its Subsidiary as of December 31, 20192016 and December 31, 2015 (including the notes thereto, if any) and the related audited consolidated statements of operations and comprehensive lossincome, convertible preferred stock cash flows and stockholders’ deficit equity for the fiscal year then ended together with all related notes and cash flows of schedules thereto (the Group Companies for each of the periods then ended, “Audited Financial Statements”) and (iiB) the unaudited consolidated balance sheets sheet of the Group Companies Company and its Subsidiary as of December 31June 30, 2020, and the related unaudited consolidated statements of operations and comprehensive loss, convertible preferred stock and stockholders’ deficit and cash flows of the Group Companies for the twelve (12)-month period then ended, and (iii) the unaudited consolidated balance sheets of the Group Companies as of December 31, 2019 and December 31, 2020 2017 (the “Latest Balance Sheet” and such date, the “Latest Balance Sheet Date”) and the related unaudited consolidated statements of operations and comprehensive lossincome, convertible preferred stock cash flows and stockholders’ deficit and cash flows of equity for the Group Companies for each of the periods period then ended (clauses (i), ended.
(ii), ) The Financial Statements have been prepared in accordance with the books and (iii) are collectively, the “Financial Statements”), each of which are attached as Section 3.4(a) records of the Company Disclosure Schedules. Each of kept in the Financial Statements (including the notes thereto) (A) was prepared ordinary course consistent with past practice and in accordance with GAAP applied on a consistent basis throughout the periods indicated (except as may be indicated in the notes thereto)covered thereby, (B) fairly presentssubject, in all material respects, the financial position, results of operations and cash flows of the Group Companies as at the date thereof and for the period indicated therein, except as otherwise specifically noted therein, and (C) in the case of the unaudited Financial Statements, to the absence of footnotes and normal year-end adjustments (none of which would be material either individually or in the aggregate). The Financial Statements included in clause (iii) only, were prepared in accordance with the standards of the PCAOB, and comply in all material respects with the applicable accounting requirements and with the rules and regulations of the SEC, the Exchange Act and the Securities Act in effect as of the respective dates thereof (including Regulation S-X or Regulation S-K, as applicable).
(b) The audited consolidated balance sheets of the Group Companies as of December 31, 2019 and December 31, 2020, and the related audited consolidated statements of operations and comprehensive loss, convertible preferred stock and stockholders’ deficit and cash flows of the Group Companies for each of the periods then ended (the “Closing Company Audited Financial Statements”), when delivered following the date of this Agreement in accordance with Section 5.17, (i) will be prepared in accordance with GAAP applied on a consistent basis throughout the periods indicated (except as may be indicated in the notes thereto), (ii) will fairly present, in all material respects, the consolidated financial position, stockholders’ equity, cash flows and results of operations and cash flows of the Group Companies Company and its Subsidiary as at of the date dates thereof and for the period indicated periods referred to therein, except as otherwise specifically noted therein, (iii) will be audited in accordance with GAAP, subject, in the standards case of unaudited Financial Statements, to the PCAOB absence of footnotes and will contain an unqualified report normal year-end adjustments (none of which would be material either individually or in the Company’s auditors, and (iv) will comply in all material respects with the applicable accounting requirements and with the rules and regulations of the SEC, the Exchange Act and the Securities Act in effect as of the respective dates thereof (including Regulation S-X or Regulation S-K, as applicableaggregate).
(ciii) Except The Company and its Subsidiary do not have any liabilities (iwhether known, unknown, absolute, accrued, contingent or otherwise), other than (A) as liabilities that are set forth on in the face Latest Balance Sheet; (B) liabilities that have arisen since the date of the Latest Balance Sheet, (ii) for Liabilities incurred Sheet in the ordinary course of business since of the Latest Balance Sheet Date Company; (none of which is a Liability for breach of contract, breach of warranty, tort, infringement or violation of Law), (iiiC) for Liabilities liabilities incurred in connection with the negotiation, preparation or execution of this Agreement or any Ancillary Documents, and the performance of their respective covenants or agreements in this Agreement or any Ancillary Document or the consummation of other Transaction Documents and the transactions contemplated hereby and thereby; (D) liabilities arising out of or thereby related to the Special Litigation (which liabilities are subject to indemnification following the Closing pursuant to SECTION 7.2(c)); and (ivE) for Liabilities liabilities that are not and would not reasonably be expected to bebe material, individually or in the aggregate, material to the Group CompaniesCompany and its Subsidiary, taken as a whole, no Group Company has any Liabilities of the type required to be set forth on a balance sheet in accordance with GAAP.
(div) The Group Companies have established Each of the Company and maintain systems its Subsidiary has, and continues to implement, a system of internal accounting controls that are designed and procedures sufficient to provide, in all material respects, provide reasonable assurance assurances that (iA) all transactions are executed in accordance with management’s authorization general or specific authorizations, (B) transactions comply with all material legal and accounting requirements applicable to the Company or its Subsidiary, (iiC) all transactions are recorded as necessary to permit preparation of proper and accurate financial statements in accordance with GAAP and to maintain accountability for the Group Companies’ assets. The Group Companies maintain and, for all periods covered by the Financial StatementsStatements in conformity with GAAP, have maintained books and records of the Group Companies in the ordinary course of business that are accurate and complete and reflect the revenues, expenses, assets and liabilities of the Group Companies in all (D) material respects.
(e) Except as set forth in Section 3.4(e) of information relating to the Company Disclosure Schedule, since and its Subsidiary is made known to the incorporation senior management of the Company, no Group . The Company has not (1) identified any significant deficiencies or material weaknesses in the design or operation of the internal controls over financial reporting, (2) identified any material fraud that involves management or other employees who have a significant role in internal controls, or (3) received any written complaint, allegation, assertion or claim that there is (i) “significant deficiency” in writing regarding the accounting practices, procedures, methodologies or methods of the internal accounting controls over financial reporting of the Group CompaniesCompany and its Subsidiary, (ii) a “material weakness” including any such complaint, allegation assertion or claim that the Company has engaged in questionable accounting or auditing practices. No information, records systems, controls or data required for the internal controls over financial reporting operation or administration of the Group Companies Company and its Subsidiary are recorded, stored or (iii) fraudmaintained by the Company or its Subsidiary, whether or not materialare otherwise dependent upon, that involves management any computerized or other employees system, program or device that is not owned, leased, held or licensed by the Company or its Subsidiary, and on the Closing Date the Company and its Subsidiary will have originals or copies of or, with respect to financial documents and information, access to all such records, systems, controls or data in its possession or control.
(v) SECTION 3.1(f)(v) of the Group Companies who have Company Disclosure Letter contains a significant role in the internal controls over financial reporting true and correct list of the Group CompaniesIndebtedness (on an itemized basis in accordance with the definition thereof) as of the date of this Agreement.
Appears in 1 contract
Financial Statements; Undisclosed Liabilities. (a) The Company has True and complete copies of the following financial statements have been delivered to Buyer or have been made available to HighCape a true and complete copy of Buyer for its review: (i) the audited consolidated balance sheets of the Group Companies Company and the Subsidiaries as of December 31September 30, 20192013 and September 30, 2014, and the related audited consolidated statements of operations and comprehensive lossoperations, convertible preferred stock and stockholders’ deficit equity and cash flows of for the Group Companies for each of the periods calendar years then ended, together with the notes thereto (the “Audited Financial Statements”); and (ii) the unaudited consolidated balance sheets sheet of the Group Companies Company and the Subsidiaries as of December July 31, 2020, 2015 (the “Balance Sheet Date”) and the related unaudited consolidated statements statement of operations and comprehensive loss, convertible preferred stock and stockholders’ deficit and cash flows of the Group Companies for the twelve (12)-month 10-month period then ended, and (iii) the unaudited consolidated balance sheets of the Group Companies as of December 31, 2019 and December 31, 2020 ended (the “Latest Balance Sheet”) and Interim Financial Statements” and, collectively with the related unaudited consolidated statements of operations and comprehensive loss, convertible preferred stock and stockholders’ deficit and cash flows of the Group Companies for each of the periods then ended (clauses (i), (ii), and (iii) are collectivelyAudited Financial Statements, the “Company Financial Statements”), each of which are attached as Section 3.4(a) of the Company Disclosure Schedules. Each of the Financial Statements (including the notes thereto) (A) was prepared in accordance with GAAP applied on a consistent basis throughout the periods indicated (except as may be indicated in the notes thereto), (B) fairly presents, in all material respects, the financial position, results of operations and cash flows of the Group Companies as at the date thereof and for the period indicated therein, except as otherwise specifically noted therein, and (C) in the case of the Financial Statements included in clause (iii) only, were prepared in accordance with the standards of the PCAOB, and comply in all material respects with the applicable accounting requirements and with the rules and regulations of the SEC, the Exchange Act and the Securities Act in effect as of the respective dates thereof (including Regulation S-X or Regulation S-K, as applicable).
(b) The audited consolidated balance sheets of the Group Companies as of December 31, 2019 and December 31, 2020, and the related audited consolidated statements of operations and comprehensive loss, convertible preferred stock and stockholders’ deficit and cash flows of the Group Companies for each of the periods then ended (the “Closing Company Audited Financial Statements”), when delivered following the date of this Agreement in accordance with Section 5.17, (i) will be Statements have been prepared in accordance with GAAP consistently applied on a consistent basis throughout the periods indicated (except as may be indicated in the notes thereto), (ii) will and fairly present, in all material respects, the financial position, and results of operations operations, stockholders’ equity and cash flows of the Group Companies Company and the Subsidiaries, on a consolidated basis, as at of the date thereof dates and for the period periods indicated. Except as set forth on Section 4.5(b) of the Company Disclosure Letter, the Interim Financial Statements have been prepared by management of the Company in accordance with GAAP consistently applied throughout the periods indicated therein(except for the absence of footnote disclosure and any customary year-end adjustments that would not be material, except as otherwise specifically noted therein, (iii) will be audited either individually or in the aggregate). The Company Financial Statements were derived from and have been prepared in accordance with the standards books and records of the PCAOB and will contain an unqualified report of the Company’s auditors, and (iv) will comply in all material respects with the applicable accounting requirements and with the rules and regulations of the SEC, the Exchange Act Company and the Securities Act in effect as of the respective dates thereof (including Regulation S-X or Regulation S-K, as applicable)Subsidiaries.
(c) Since October 1, 2012, the Company and the Subsidiaries have maintained accurate books and records which reflect the Company’s and the Subsidiaries’ assets and liabilities and maintain and have maintained for all periods reflected in the Company Financial Statements, proper and adequate internal accounting controls that provide assurance that (i) transactions are recorded as necessary to permit accurate preparation of its financial statements and to maintain accurate accountability for its assets in all material respects and (ii) except as set forth on Section 4.5(c) of the Company Disclosure Letter, accounts, notes and other receivables and inventory of the Company or any Subsidiary are recorded in accordance with GAAP in all material respects. To the Company’s Knowledge, since October 1, 2012, no auditor, Affiliate, accountant or representative of the Company has received any material complaint, allegation, assertion or claim, or any material weakness or significant deficiency, whether written or oral, regarding the accounting or auditing practices, procedures, methodologies or methods of the Company and the Subsidiaries, taken as a whole, or their respective internal accounting controls, including any material complaint, allegation, assertion or claim that the Company or the Subsidiaries have engaged in questionable accounting or auditing practices.
(d) Except as set forth on Section 4.5(d) of the Company Disclosure Letter, there is no outstanding Indebtedness, and, as of the Closing Date, the Company and the Subsidiaries shall have no Indebtedness. There are no off-balance sheet financing arrangements to which the Company or any Subsidiary is a party.
(e) Neither the Company nor any of the Subsidiaries has any liability or obligation (whether matured or unmatured, fixed or contingent or otherwise) of the type required to be reflected on or reserved against in, a consolidated balance sheet prepared in accordance with GAAP, except (i) as set forth on the face Section 4.5(e) of the Latest Balance SheetCompany Disclosure Letter, (ii) liabilities accrued or reserved for Liabilities incurred in the ordinary course of business since the Latest Balance Sheet Date (none of which is a Liability for breach of contract, breach of warranty, tort, infringement or violation of Law), (iii) for Liabilities incurred in connection with the negotiation, preparation or execution of this Agreement or any Ancillary Documents, the performance of their respective covenants or agreements in this Agreement or any Ancillary Document or the consummation of the transactions contemplated hereby or thereby and (iv) for Liabilities that are not and would not reasonably be expected to be, individually or in the aggregate, material to the Group Companies, taken as a whole, no Group Company has any Liabilities of the type required to be set forth on a balance sheet in accordance with GAAP.
(d) The Group Companies have established and maintain systems of internal accounting controls that are designed to provide, in all material respects, reasonable assurance that (i) all transactions are executed in accordance with management’s authorization and (ii) all transactions are recorded as necessary to permit preparation of proper and accurate financial statements in accordance with GAAP and to maintain accountability for on the Group Companies’ assets. The Group Companies maintain and, for all periods covered by the Company Financial Statements, have maintained books in each case that are not individually (or when taken together with all other such liabilities) material to the Company and records (iii) liabilities that arise after the date of the Group Companies Interim Financial Statements in the ordinary course of business that are accurate and complete and reflect not individually (or when taken together with all other such liabilities) material to the revenues, expenses, assets and liabilities Company or any of the Group Companies in all material respectsSubsidiaries.
(e) Except as set forth in Section 3.4(e) of the Company Disclosure Schedule, since the incorporation of the Company, no Group Company has received any written complaint, allegation, assertion or claim that there is (i) “significant deficiency” in the internal controls over financial reporting of the Group Companies, (ii) a “material weakness” in the internal controls over financial reporting of the Group Companies or (iii) fraud, whether or not material, that involves management or other employees of the Group Companies who have a significant role in the internal controls over financial reporting of the Group Companies.
Appears in 1 contract
Sources: Stock Purchase Agreement (CPI International Holding Corp.)
Financial Statements; Undisclosed Liabilities. 1. Attached hereto as Schedule 4(f)(i) are the following financial statements of the Seller: (a) The Company has made available to HighCape a true and complete copy of (iA) the audited consolidated balance sheets of the Group Companies as of December 31compiled, 2019, and the related audited consolidated statements of operations and comprehensive loss, convertible preferred stock and stockholders’ deficit and cash flows of the Group Companies for each of the periods then ended, (ii) the unaudited consolidated balance sheets sheet and statements of the Group Companies income and changes in stockholders’ equity as of December 31, 2020, and the related unaudited consolidated statements of operations and comprehensive loss, convertible preferred stock and stockholders’ deficit and cash flows of the Group Companies for the twelve (12)-month period then ended, and (iii) the unaudited consolidated balance sheets of the Group Companies as of fiscal years ended December 31, 2019 and December 31, 2020 (collectively, the “Latest Year-End Financial Statements”); and (B) the unaudited consolidated balance sheet and statements of income and changes in stockholders’ equity as of and for the eleven (11)-month period ended November 30, 2021 (such date, the “Most Recent Balance Sheet Date”, such balance sheet, the “Most Recent Balance Sheet”) , and the related unaudited consolidated such balance sheet and statements of operations income and comprehensive loss, convertible preferred stock and changes in stockholders’ deficit and cash flows of equity, collectively, the Group Companies for each of “Most Recent Financial Statements” and, together with the periods then ended (clauses (i)Year-End Financial Statements, (ii), and (iii) are collectively, the “Financial Statements”), each of which are attached as Section 3.4(a) of the Company Disclosure Schedules. Each of the The Financial Statements (including the notes thereto, as applicable) are complete and correct in all material respects, have been prepared in accordance, and are consistent, with the books and records of the Seller (A) was prepared which books and records are complete and correct in all material respects), and fairly and accurately present in all material respects the financial condition, results of operations, and changes in financial position of the Seller as of such dates and for such periods, in each case in accordance with GAAP generally accepted accounting principles as in effect in the United States (as in effect as of the dates such Financial Statements were prepared, applied on a consistent basis throughout the periods indicated Financial Statements), provided that the Most Recent Financial Statements are subject to normal year-end adjustments and lack footnotes (except as may none of which adjustments or footnotes are or would be indicated material in the notes thereto)aggregate) and other presentation items.
2. The Seller does not have any Liabilities or commitments, except those that are adequately reflected or reserved against on the Most Recent Balance Sheet.
3. During the three (B3) fairly presents, in all material respectsyears prior to the date hereof, the financial positionSeller has not changed the accounting methods, results of operations and cash flows of principles, policies, practices, procedures, classifications, judgments, or estimation methodology used by the Group Companies as at the date thereof and for the period indicated therein, except as otherwise specifically noted therein, and (C) Seller in the case preparation of the Financial Statements included in clause (iii) only, were prepared in accordance with the standards of the PCAOB, and comply in all material respects with the applicable accounting requirements and with the rules and regulations of the SEC, the Exchange Act and the Securities Act in effect as of the respective dates thereof (including Regulation S-X or Regulation S-K, as applicable).
(b) The audited consolidated balance sheets of the Group Companies as of December 31, 2019 and Statements. Since December 31, 2020, the Seller has not (1) accelerated its acquisition of materials or inventory or incurrence of other costs, or (2) otherwise modified its operations in a manner that would accelerate the recognition of revenue, in each case within the foregoing clauses (1) and the related audited consolidated statements of operations and comprehensive loss, convertible preferred stock and stockholders’ deficit and cash flows of the Group Companies for each of the periods then ended (the “Closing Company Audited Financial Statements”2), when delivered following the date of this Agreement in accordance with Section 5.17, (i) will be prepared in accordance with GAAP applied on a consistent basis throughout the periods indicated (except as may be indicated in the notes thereto), (ii) will fairly present, in all material respects, the financial position, results of operations and cash flows of the Group Companies as at the date thereof and for the period indicated therein, except as otherwise specifically noted therein, (iii) will be audited in accordance with the standards of the PCAOB and will contain an unqualified report of the Company’s auditors, and (iv) will comply in all material respects with the applicable accounting requirements and with the rules and regulations of the SEC, the Exchange Act and the Securities Act in effect as of the respective dates thereof (including Regulation S-X or Regulation S-K, as applicable).
(c) Except (i) as set forth on the face of the Latest Balance Sheet, (ii) for Liabilities incurred in the ordinary course of business since the Latest Balance Sheet Date (none of which is a Liability for breach of contract, breach of warranty, tort, infringement or violation of Law), (iii) for Liabilities incurred in connection with the negotiation, preparation or execution of this Agreement or any Ancillary Documents, the performance of their respective covenants or agreements in this Agreement or any Ancillary Document or the consummation of the transactions contemplated hereby or thereby and (iv) for Liabilities that are not and would not reasonably be expected to be, individually or in the aggregate, material relative to the Group Companies, taken as a whole, no Group Company has any Liabilities Ordinary Course of the type required to be set forth on a balance sheet in accordance with GAAPBusiness.
(d) The Group Companies have established and maintain systems of internal accounting controls that are designed to provide, in all material respects, reasonable assurance that (i) all transactions are executed in accordance with management’s authorization and (ii) all transactions are recorded as necessary to permit preparation of proper and accurate financial statements in accordance with GAAP and to maintain accountability for the Group Companies’ assets. The Group Companies maintain and, for all periods covered by the Financial Statements, have maintained books and records of the Group Companies in the ordinary course of business that are accurate and complete and reflect the revenues, expenses, assets and liabilities of the Group Companies in all material respects.
(e) Except as set forth in Section 3.4(e) of the Company Disclosure Schedule, since the incorporation of the Company, no Group Company has received any written complaint, allegation, assertion or claim that there is (i) “significant deficiency” in the internal controls over financial reporting of the Group Companies, (ii) a “material weakness” in the internal controls over financial reporting of the Group Companies or (iii) fraud, whether or not material, that involves management or other employees of the Group Companies who have a significant role in the internal controls over financial reporting of the Group Companies.
Appears in 1 contract
Sources: Credit and Security Agreement (STRATA Skin Sciences, Inc.)
Financial Statements; Undisclosed Liabilities. (a) The Company has made available to HighCape Sandbridge a true and complete copy of (i) the audited consolidated balance sheets of the Group Companies as of December 31, 2019, 2019 and the related audited consolidated statements of operations and comprehensive loss, convertible preferred stock and stockholders’ deficit and cash flows of the Group Companies for each of the periods then ended, ended and (ii) the unaudited consolidated balance sheets of the Group Companies as of December 31, 2020, and the related unaudited consolidated statements of operations and comprehensive loss, convertible preferred stock and stockholders’ deficit and cash flows of the Group Companies for the twelve (12)-month period then ended, and (iii) the unaudited consolidated balance sheets of the Group Companies as of December 31, 2019 and December 31, 2020 (the “Latest Balance Sheet”) and the related unaudited consolidated statements of operations and comprehensive loss, convertible preferred stock and stockholders’ deficit and cash flows of the Group Companies for each of the periods twelve-month period then ended (clauses (i), ) and (ii), and (iii) are collectively, the “Financial Statements”), each of which are attached as Section 3.4(a) of the Company Disclosure Schedules. Each of the Financial Statements (including the notes thereto) (A) was prepared in accordance with GAAP applied on a consistent basis throughout the periods indicated (except as may be indicated in the notes thereto), (B) fairly presents, in all material respects, the financial position, results of operations and cash flows of the Group Companies as at the date thereof and for the period indicated therein, except as otherwise specifically noted therein, and (C) in the case of the Financial Statements included described in clause (iiii) onlyof the preceding sentence, were prepared audited in accordance with the standards of the PCAOB, PCAOB and contain an unqualified report of the Company’s auditors and (D) comply in all material respects with the applicable accounting requirements and with and, in the rules and regulations case of the SEC, the Exchange Act and the Securities Act Financial Statements described in effect as of the respective dates thereof (including Regulation S-X or Regulation S-K, as applicable).
(b) The audited consolidated balance sheets of the Group Companies as of December 31, 2019 and December 31, 2020, and the related audited consolidated statements of operations and comprehensive loss, convertible preferred stock and stockholders’ deficit and cash flows of the Group Companies for each of the periods then ended (the “Closing Company Audited Financial Statements”), when delivered following the date of this Agreement in accordance with Section 5.17, clause (i) will be prepared in accordance with GAAP applied on a consistent basis throughout the periods indicated (except as may be indicated in the notes thereto), (ii) will fairly present, in all material respects, the financial position, results of operations and cash flows of the Group Companies as at the date thereof and for the period indicated thereinpreceding sentence, except as otherwise specifically noted therein, (iii) will be audited in accordance with the standards of the PCAOB and will contain an unqualified report of the Company’s auditors, and (iv) will comply in all material respects with the applicable accounting requirements and with the rules and regulations of the SEC, the Exchange Act and the Federal Securities Act in effect as of the respective dates thereof (including Regulation S-X or Regulation S-K, as applicable)Laws.
(c) Except (i) as set forth on the face of the Latest Balance Sheet, (ii) for Liabilities incurred in the ordinary course of business since the Latest Balance Sheet Date (none of which is a Liability for breach of contract, breach of warranty, tort, infringement or violation of Law), (iii) for Liabilities incurred in connection with the negotiation, preparation or execution of this Agreement or any Ancillary Documents, the performance of their respective covenants or agreements in this Agreement or any Ancillary Document or the consummation of the transactions contemplated hereby or thereby and (iv) for Liabilities that are not and would not reasonably be expected to be, individually or in the aggregate, material to the Group Companies, taken as a whole, no Group Company has any Liabilities of the type required to be set forth on a balance sheet in accordance with GAAP.
(d) The Group Companies have established and maintain systems of internal accounting controls that are designed to provide, in all material respects, reasonable assurance that (i) all transactions are executed in accordance with management’s authorization and (ii) all transactions are recorded as necessary to permit preparation of proper and accurate financial statements in accordance with GAAP and to maintain accountability for the Group Companies’ assets. The Group Companies maintain and, for all periods covered by the Financial Statements, have maintained books and records of the Group Companies in the ordinary course of business that are accurate and complete and reflect the revenues, expenses, assets and liabilities of the Group Companies in all material respects.
(e) Except as set forth in Section 3.4(e) of the Company Disclosure Schedule, since the incorporation of the Company, no Group Company has received any written complaint, allegation, assertion or claim that there is (i) “significant deficiency” in the internal controls over financial reporting of the Group Companies, (ii) a “material weakness” in the internal controls over financial reporting of the Group Companies or (iii) fraud, whether or not material, that involves management or other employees of the Group Companies who have a significant role in the internal controls over financial reporting of the Group Companies.
Appears in 1 contract
Sources: Business Combination Agreement (Sandbridge Acquisition Corp)
Financial Statements; Undisclosed Liabilities. (a) The Company has made available to HighCape SilverBox a true and complete copy of (i1) the audited consolidated balance sheets of the Group Companies as of December 31, 20192020 (the “Latest Balance Sheet”) and December 31, 2019 and the related audited consolidated statements of operations and comprehensive loss, convertible preferred stock and stockholders’ deficit and cash flows of the Group Companies for each of the periods then ended, (ii) the unaudited consolidated balance sheets of the Group Companies as of December 31, 2020, and the related unaudited consolidated statements of operations and comprehensive loss, convertible preferred stock and stockholders’ deficit and cash flows of the Group Companies for the twelve (12)-month period then ended, and (iii) the unaudited consolidated balance sheets of the Group Companies as of December 31, 2019 and December 31, 2020 (the “Latest Balance Sheet”) and the related unaudited consolidated statements of operations and comprehensive loss, convertible preferred stock and stockholdersmembers’ deficit and cash flows of the Group Companies for each of the periods then ended (clauses (i), (ii), and (iii2) are the unaudited consolidated balance sheet of the Group Companies as of June 30, 2021 and the related unaudited consolidated statement of operations and comprehensive loss, members’ deficit and cash flow of the Group Companies for each of the six-month periods ended June 30, 2021 and June 30, 2020 (collectively, the “Financial Statements”), each of which are attached as Section 3.4(a) of the Company Disclosure Schedules. Each of the Financial Statements (including the notes thereto) (Ai) was prepared in accordance with GAAP applied on a consistent basis throughout the periods indicated (except as may be indicated in the notes thereto), (Bii) fairly presents, in all material respects, the financial position, results of operations and cash flows of the Group Companies as at the date thereof and for the period indicated therein, except as otherwise specifically noted therein, and (Ciii) in the case of the Financial Statements included in clause (iii) onlyaudited financial statements, were prepared was audited in accordance with the standards of the PCAOBAmerican Institute of Certified Public Accountants and contain an unqualified report of the Group Companies’ auditors, and comply (iv) complies in all material respects with the applicable accounting requirements and with the rules and regulations of the SEC, the Exchange Act and the Securities Act in effect as of the respective dates thereof (including Regulation S-X or Regulation S-K, as applicable), and (v) were prepared from and accurately reflect the books and records of the Group Companies.
(b) The audited unaudited consolidated balance sheets sheet of the Group Companies as of December 31September 30, 2019 and December 31, 2020, 2021 and the related audited unaudited consolidated statements statement of operations and comprehensive loss, convertible preferred stock and stockholdersmembers’ deficit and cash flows flow of the Group Companies for each of the nine-month periods then ended September 30, 2021 and September 30, 2020 (the “Closing Company Audited Unaudited Financial Statements”)) and the Required Company Financial Statements, in each case, when delivered following the date of this Agreement in accordance with Section 5.175.16, (i) will be prepared in accordance with GAAP applied on a consistent basis throughout the periods indicated (except as may be indicated in the notes thereto and subject to, in the case of any unaudited financial statements, normal year-end audit adjustments and the absence of notes thereto), (ii) will fairly present, in all material respects, the financial position, results of operations and cash flows of the Group Companies as at the date dates thereof and for the period periods indicated therein, except as otherwise specifically noted thereintherein (subject to, in the case of any unaudited financial statements, normal year-end audit adjustments and the absence of notes thereto), (iii) will be audited in accordance with the standards of the PCAOB and will contain an unqualified report of the Company’s auditors, and (iv) will comply in all material respects with the applicable accounting requirements and with the rules and regulations of the SEC, the Exchange Act and the Securities Act in effect as of the respective dates thereof (including Regulation S-X or Regulation S-K, as applicable), (iv) in the case of the audited financial statements included in the Required Company Financial Statements, will be audited in accordance with the standards of the PCAOB by a PCAOB qualified auditor that was independent under Rule 2-01 of Regulation S-X under the Securities Act and contain an unqualified report of the Group Companies’ auditors, and (v) will be prepared from and accurately reflect the books and records of the Group Companies.
(c) Except (i) as set forth on the face of the Latest Balance Sheet, (ii) for Liabilities incurred in the ordinary course of business since the date of the Latest Balance Sheet Date (none of which exceeds $5,000,000 individually or $10,000,000 in the aggregate or is a Liability for breach of contract, breach of warranty, tort, infringement or violation of Law), (iii) for Liabilities incurred in connection with the negotiation, preparation or execution of this Agreement or any Ancillary Documents, the performance of their respective covenants or agreements in this Agreement or any Ancillary Document or the consummation of the transactions contemplated hereby or thereby and (iv) for Liabilities that are not and would not reasonably be expected to be, individually or in the aggregate, material to the Group Companies, taken as a whole, no Group Company has any Liabilities of the type required to be set forth on a balance sheet in accordance with GAAP.
(d) The Except as set forth in Section 3.4(d) of the Company Disclosure Schedule, the Group Companies have established and maintain systems of internal accounting controls that are designed to provide, in all material respects, reasonable assurance that (i) all transactions are executed in accordance with management’s authorization and (ii) all transactions are recorded as necessary to permit preparation of proper and accurate financial statements in accordance with GAAP and to maintain accountability for the Group Companies’ assets. The Group Companies maintain and, for all periods covered by the Financial Statements, have maintained books and records of the Group Companies in the ordinary course of business that are accurate and complete and reflect the revenues, expenses, assets and liabilities of the Group Companies in all material respects.
(e) Except as set forth in Section 3.4(e) of the Company Disclosure Schedule, since the incorporation formation of the Company, no Group Company has received any written complaint, allegation, assertion or claim that there is (i) “significant deficiency” in the internal controls over financial reporting of the Group CompaniesCompanies to the Company’s knowledge, (ii) a “material weakness” in the internal controls over financial reporting of the Group Companies to the Company’s knowledge or (iii) fraud, whether or not material, that involves management or other employees of the Group Companies who have a significant role in the internal controls over financial reporting of the Group Companies.
(f) The Group Companies have established and maintain disclosure controls and procedures (as defined in Rule 13a-15 under the Exchange Act). Such disclosure controls and procedures are designed to ensure that material information relating to the Group Companies is made known to the appropriate principal executive officer and its principal financial officer. To the Company’s knowledge, such disclosure controls and procedures are effective in timely alerting the Company’s principal executive officer and principal financial officer to material information required to be included in the Company’s financial statements.
Appears in 1 contract
Sources: Business Combination Agreement (Silverbox Engaged Merger Corp I)