Reports; Financial Statements. (i) The Company’s consolidated financial statements (including, in each case, any notes thereto) since December 31, 2009 (the “Applicable Date”) were or 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 or, in the case of interim consolidated financial statements, where information and footnotes contained in such financial statements are not required to be in compliance with GAAP), and in each case such consolidated financial statements fairly presented, in all material respects, the consolidated financial position, results of operations and cash flows of the Company and the consolidated Subsidiaries of the Company as of the respective dates thereof and for the respective periods covered thereby (subject, in the case of unaudited statements, to normal year-end adjustments which were not and which are not expected to be, individually or in the aggregate, material to the Company and its consolidated Subsidiaries taken as a whole). (ii) The Company maintains disclosure controls and procedures substantially similar to those required by Rule 13a-15 or 15d-15 under the Exchange Act. Such disclosure controls and procedures are effective to ensure that information required to be disclosed by the Company is recorded and reported on a timely basis to the individuals responsible for the preparation of the Company’s public disclosure documents. The -28- Company maintains internal control over financial reporting (as defined in Rule 13a-15 or 15d-15, as applicable, under the Exchange Act). Such internal control over financial reporting is effective in providing reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles and includes policies and procedures that (i) pertain to the maintenance of records that in reasonable detail accurately and fairly reflect the transactions and dispositions of the asset of the Company, (ii) provide reasonable assurance that transactions are recorded as necessary to permit preparation of financial statements in accordance with generally accepted accounting principles, and that receipts and expenditures of the Company are being made only in accordance with authorizations of management and directors of the Company, and (iii) provide reasonable assurance regarding prevention or timely detection of unauthorized acquisition, use or disposition of the Company’s assets that could have a material effect on its financial statements. (iii) The Company has disclosed, based on the most recent evaluation of its chief executive officer and its chief financial officer prior to the date hereof, to the Company’s auditors and the audit committee of the Company’s board of directors (A) any significant deficiencies in the design or operation of its internal controls over financial reporting that are reasonably likely to adversely affect the Company’s ability to record, process, summarize and report financial information and has identified for the Company’s auditors and audit committee of the Company’s board of directors any material weaknesses in internal control over financial reporting and (B) any fraud, whether or not material, that involves management or other employees who have a significant role in the Company’s internal control over financial reporting. The Company has made available to Parent (i) a summary of any such disclosure made by management to the Company’s auditors and audit committee since the Applicable Date and (ii) any material communication since the Applicable Date made by management or the Company’s auditors to the audit committee required, the audit committee’s charter or professional standards of the Public Company Accounting Oversight Board. Since the Applicable Date, no material complaints from any source regarding accounting, internal accounting controls or auditing matters, and no concerns from Company employees regarding questionable accounting or auditing matters, have been received by the Company. The Company has made available to Parent a summary of all material complaints or concerns relating to other matters made since the Applicable Date through the Company’s whistleblower hot-line or equivalent system for receipt of employee concerns regarding possible violations of Law. No attorney representing the Company or any of its Subsidiaries, whether or not employed by the Company or any of its Subsidiaries, has reported evidence of a violation of securities laws, breach of fiduciary duty or similar violation by the Company or any of its officers, directors, employees or agents to the Company’s chief legal officer, audit committee (or other committee designated for the purpose) of the board of directors or the board of directors. (iv) The Company and its Subsidiaries have timely filed all reports and statements, together with any amendments required to be made with respect thereto, that they were required to file since December 31, 2009 with (A) the Federal Reserve Board and (B) any other Regulatory Authority, and all other material reports and statements required to be filed by it since December 31, 2009, including, without limitation, the rules and regulations of the FDIC, the DFI or any other Regulatory Authority, and has paid all fees and assessments due and payable in connection therewith. As of their respective dates, such reports and statements complied in all material respects with all the laws, rules and regulations of the applicable Regulatory Authority with which they were filed. (v) Since December 31, 2012, neither the Company nor any of its Subsidiaries has incurred any obligations or liabilities (whether or not accrued, contingent or otherwise and whether or not required to be disclosed, including those related to environmental and occupational safety and health matters) other than in the ordinary and usual course of business consistent with past practice (excluding the incurrence of expenses related to this Agreement and the transactions contemplated hereby). (vi) Since December 31, 2012, (A) each of the Company and each of its Subsidiaries has conducted its business only in, and has not engaged in any material transaction other than according to, the ordinary and usual course of such business consistent with past practice and (B) 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 5.02 or otherwise) has had or could be reasonably likely to have a Company Material Adverse Effect or prevent, materially delay or materially impair the ability of the Company to consummate the transactions contemplated by this Agreement. (vii) Since December 31, 2012, there has not been (A) any material damage, destruction or other casualty loss with respect to any material asset or property owned, leased or otherwise used by the Company or any Subsidiary of the Company, whether or not covered by insurance, (B) any declaration, setting aside or payment of any dividend or other distribution in cash, stock or property in respect of the capital stock of the Company, (C) any change by the Company in accounting principles, practices or methods or (D) any increase in the compensation payable or that could become payable by the Company or any of its Subsidiaries to officers or key employees or any amendment of any of the Benefit Plans other than increases or amendments in the ordinary and usual course consistent with past practice.
Appears in 2 contracts
Sources: Merger Agreement (Bank of Marin Bancorp), Merger Agreement (Bank of Marin Bancorp)
Reports; Financial Statements. (ia) The Company’s All of the Subsidiaries of Contura are consolidated for accounting purposes. Contura has delivered to ANR the audited consolidated financial statements (including, in each case, any including the related notes thereto) since of Contura for the fiscal year ended December 31, 2009 2017 (the “Applicable DateContura Financial Statements”) were or will be ), and the Contura Financial Statements have been prepared in accordance with GAAP applied on a consistent basis throughout the periods indicated involved (except as may be indicated in the notes thereto or, in the case of interim consolidated financial statements, where information thereto) and footnotes contained in such financial statements are not required to be in compliance with GAAP), and in each case such consolidated financial statements fairly presented, present in all material respects, respects the consolidated financial positionposition of Contura and its Subsidiaries as of their respective dates, and the consolidated income, stockholders’ equity, results of operations and changes in consolidated financial position or cash flows of the Company and the consolidated Subsidiaries of the Company as of the respective dates thereof and for the respective periods covered thereby presented therein.
(subjectb) The records, in systems, controls, data and information of Contura 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 case exclusive ownership and direct control of unaudited statementsContura or their accountants (including all means of access thereto and therefrom), to normal year-end adjustments which were except for any nonexclusive ownership and nondirect control that has not had and which are would not reasonably be expected to behave, individually or in the aggregate, a material adverse effect on the system of internal accounting controls described below in this Section. Contura has implemented and maintain a system of internal controls that is designed to the Company and its consolidated Subsidiaries taken as a whole).
(ii) The Company maintains disclosure controls and procedures substantially similar to those required by Rule 13a-15 or 15d-15 under the Exchange Act. Such disclosure controls and procedures are effective to ensure that information required to be disclosed by the Company is recorded and reported on a timely basis to the individuals responsible for the preparation of the Company’s public disclosure documents. The -28- Company maintains internal control over financial reporting (as defined in Rule 13a-15 or 15d-15, as applicable, under the Exchange Act). Such internal control over financial reporting is effective in providing provide reasonable assurance assurances regarding the reliability of financial reporting and the preparation of its consolidated financial statements for external purposes in accordance with generally accepted accounting principles and includes policies and procedures that (i) pertain to the maintenance of records that in reasonable detail accurately and fairly reflect the transactions and dispositions of the asset of the Company, (ii) provide reasonable assurance that transactions are recorded as necessary to permit preparation of financial statements in accordance with generally accepted accounting principlesGAAP, and that receipts and expenditures such system of the Company are being made only in accordance with authorizations of management and directors of the Company, and (iii) provide reasonable assurance regarding prevention or timely detection of unauthorized acquisition, use or disposition of the Company’s assets that could have a material effect on its financial statements.
(iii) The Company internal controls is effective. Contura has disclosed, based on the its most recent evaluation of its chief executive officer and its chief financial officer system of internal controls prior to the date hereofof this Agreement, to the Company’s their outside auditors and the audit committee of the Company’s board of directors Contura Board (A) any significant deficiencies and material weaknesses in the design or operation of its internal controls over financial reporting that are would reasonably likely be expected to adversely affect the CompanyContura’s ability to record, process, summarize and report financial information and has identified for the Company’s auditors and audit committee of the Company’s board of directors any material weaknesses in internal control over financial reporting and (B) any fraud, whether or not material, that involves management or other employees who have a significant role in the CompanyContura’s internal control controls over financial reporting. The Company has made available Prior to Parent (i) the date hereof, a true, correct and complete summary of any such disclosure disclosures made by management to the CompanyContura’s auditors and audit committee since the Applicable Date and (ii) any material communication since the Applicable Date made by management or the Company’s auditors to the audit committee required, the audit committee’s charter or professional standards of the Public Company Accounting Oversight Board. Contura Board has been provided to ANR.
(c) Since July 26, 2016, neither Contura nor any of its Subsidiaries nor, to the Applicable Dateknowledge of Contura, no any director, officer, employee, auditor, accountant or representative of Contura or any of its Subsidiaries has received or otherwise had or obtained knowledge of any material complaints from complaint, allegation, assertion or claim, whether written or oral, regarding the accounting or auditing practices, procedures, methodologies or methods of Contura or any source regarding accounting, of their Subsidiaries or their respective internal accounting controls controls, including any material complaint, allegation, assertion or auditing matters, and no concerns from Company employees regarding claim that Contura or any of its Subsidiaries has engaged in questionable accounting or auditing matterspractices, have been received by the Company. The Company has made available to Parent a summary of all material complaints or concerns relating to other matters made since the Applicable Date through the Company’s whistleblower hot-line or equivalent system for receipt of employee concerns regarding possible violations of Law. No and no attorney representing the Company Contura or any of its Subsidiaries, whether or not employed by the Company Contura or any of its Subsidiaries, has reported evidence of a material violation of securities lawsLaw, breach of fiduciary duty or similar violation by the Company Contura or any of its Subsidiaries or any of its officers, directors, employees or agents to the Company’s chief legal officer, audit Contura Board or any committee (thereof or other committee designated for the purpose) to any director or officer of the board Contura or any of directors or the board of directorsits Subsidiaries.
(ivd) The Company and its Subsidiaries have timely filed all reports and statements, together with any amendments required to be made with respect thereto, that they were required to file since December 31, 2009 with (A) the Federal Reserve Board and (B) any other Regulatory Authority, and all other material reports and statements required to be filed by it since December 31, 2009, including, without limitation, the rules and regulations of the FDIC, the DFI or any other Regulatory Authority, and has paid all fees and assessments due and payable in connection therewith. As of their respective dates, such reports and statements complied in all material respects with all the laws, rules and regulations of the applicable Regulatory Authority with which they were filed.
(v) Since December 31, 2012, neither the Company Neither Contura nor any of its Subsidiaries has incurred any obligations or liabilities (of any nature, whether or not accrued, absolute, fixed, contingent or otherwise otherwise, known or unknown, whether due or to become due and whether or not required to be disclosedrecorded or reflected on a balance sheet under GAAP, including those related to environmental and occupational safety and health matters) other than liabilities (a) as and to the extent reflected or reserved against on the consolidated balance sheet of Contura dated as of the Balance Sheet Date included in the Contura Financial Statements, (b) incurred in the ordinary and usual course of business consistent with past practice since the Balance Sheet Date, or (excluding the incurrence of expenses related c) that would not have or reasonably be expected to this Agreement and the transactions contemplated hereby).
(vi) Since December 31, 2012, (A) each of the Company and each of its Subsidiaries has conducted its business only in, and has not engaged in any material transaction other than according to, the ordinary and usual course of such business consistent with past practice and (B) no event has occurred or circumstance arisen thathave, individually or taken together with all other factsin the aggregate, circumstances and events (described in any paragraph of this Section 5.02 or otherwise) has had or could be reasonably likely to have a Company Contura Material Adverse Effect or prevent, materially delay or materially impair the ability of the Company to consummate the transactions contemplated by this AgreementEffect.
(vii) Since December 31, 2012, there has not been (A) any material damage, destruction or other casualty loss with respect to any material asset or property owned, leased or otherwise used by the Company or any Subsidiary of the Company, whether or not covered by insurance, (B) any declaration, setting aside or payment of any dividend or other distribution in cash, stock or property in respect of the capital stock of the Company, (C) any change by the Company in accounting principles, practices or methods or (D) any increase in the compensation payable or that could become payable by the Company or any of its Subsidiaries to officers or key employees or any amendment of any of the Benefit Plans other than increases or amendments in the ordinary and usual course consistent with past practice.
Appears in 1 contract
Reports; Financial Statements. (i) The CompanyNapa’s consolidated financial statements (including, in each case, any notes thereto) since December 31, 2009 2014 (the “Applicable Date”) were or 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 or, in the case of interim consolidated financial statements, where information and footnotes contained in such financial statements are not required to be in compliance with GAAP), and in each case such consolidated financial statements fairly presented, in all material respects, the consolidated financial position, results of operations and cash flows of the Company Napa and the consolidated Subsidiaries of the Company Napa as of the respective dates thereof and for the respective periods covered thereby (subject, in the case of unaudited statements, to normal year-end adjustments which were not and which are not expected to be, individually or in the aggregate, material to the Company Napa and its consolidated Subsidiaries taken as a whole).
(ii) The Company Napa maintains disclosure controls and procedures substantially similar to those required by Rule 13a-15 or 15d-15 under the Exchange Act. Such disclosure controls and procedures that are effective to ensure that information required to be disclosed by the Company Napa is recorded and reported on a timely basis to the individuals responsible for the preparation of the CompanyNapa’s public disclosure documents. The -28- Company Napa maintains internal control over financial reporting (as defined in Rule 13a-15 or 15d-15, as applicable, under the Exchange Act). Such internal control over financial reporting is effective in providing reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles and includes policies and procedures that (i) pertain to the maintenance of records that in reasonable detail accurately and fairly reflect the transactions and dispositions of the asset of the CompanyNapa, (ii) provide reasonable assurance that transactions are recorded as necessary to permit preparation of financial statements in accordance with generally accepted accounting principles, and that receipts and expenditures of the Company Napa are being made only in accordance with authorizations of management and directors of the CompanyNapa, and (iii) provide reasonable assurance regarding prevention or timely detection of unauthorized acquisition, use or disposition of the CompanyNapa’s assets that could have a material effect on its financial statements.
(iii) The Company Napa has disclosed, based on the most recent evaluation of its chief executive officer and its chief financial officer prior to the date hereof, to the CompanyNapa’s auditors and the audit committee of the CompanyNapa’s board of directors (A) any significant deficiencies in the design or operation of its internal controls over financial reporting that are reasonably likely to adversely affect the CompanyNapa’s ability to record, process, summarize and report financial information and has identified for the CompanyNapa’s auditors and audit committee of the CompanyNapa’s board of directors any material weaknesses in internal control over financial reporting and (B) any fraud, whether or not material, that involves management or other employees who have a significant role in the CompanyNapa’s internal control over financial reporting. The Company Napa has made available to Parent (i) a summary of any such disclosure made by management to the CompanyNapa’s auditors and audit committee since the Applicable Date and (ii) any material communication since the Applicable Date made by management or the CompanyNapa’s auditors to the audit committee required, required by the audit committee’s charter or professional standards of the Public Company Accounting Oversight Board. Since the Applicable Date, no material complaints from any source regarding accounting, internal accounting controls or auditing matters, and no concerns from Company Napa employees regarding questionable accounting or auditing matters, have been received by the CompanyNapa. The Company Napa has made available to Parent a summary of all material complaints or concerns relating to other matters made since the Applicable Date through the CompanyNapa’s whistleblower hot-line or equivalent system for receipt of employee concerns regarding possible violations of Law. No attorney representing the Company Napa or any of its Subsidiaries, whether or not employed by the Company Napa or any of its Subsidiaries, has reported evidence of a violation of securities laws, breach of fiduciary duty or similar violation by the Company Napa or any of its officers, directors, employees or agents to the CompanyNapa’s chief legal officer, audit committee (or other committee designated for the purpose) of the board of directors or the board of directors.
(iv) The Company Napa and its Subsidiaries have timely filed all reports and statements, together with any amendments required to be made with respect thereto, that they were required to file since December 31, 2009 2014 with (A) the Federal Reserve Board OCC and (B) any other Regulatory Authority, and all other material reports and statements required to be filed by it since December 31, 20092014, including, without limitation, the rules and regulations of the FDIC, the DFI OCC or any other Regulatory Authority, and has paid all fees and assessments due and payable in connection therewith. As of their respective dates, such reports and statements complied in all material respects with all the laws, rules and regulations of the applicable Regulatory Authority with which they were filed.
(v) Since December 31, 20122016, neither the Company Napa nor any of its Subsidiaries has incurred any obligations or liabilities (whether or not accrued, contingent or otherwise and whether or not required to be disclosed, including those related to environmental and occupational safety and health matters) other than in the ordinary and usual course of business consistent with past practice (excluding the incurrence of expenses related to this Agreement and the transactions contemplated hereby).
(vi) Since December 31, 20122016, (A) each of the Company Napa and each of its Subsidiaries has conducted its business only in, and has not engaged in any material transaction other than according to, the ordinary and usual course of such business consistent with past practice and (B) 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 5.02 or otherwise) has had or could be reasonably likely to have a Company Napa Material Adverse Effect or prevent, materially delay or materially impair the ability of the Company Napa to consummate the transactions contemplated by this Agreement.
(vii) Since December 31, 20122016, there has not been (A) any material damage, destruction or other casualty loss with respect to any material asset or property owned, leased or otherwise used by the Company Napa or any Subsidiary of the CompanyNapa, whether or not covered by insurance, (B) any declaration, setting aside or payment of any dividend or other distribution in cash, stock or property in respect of the capital stock of the CompanyNapa, (C) any change by the Company Napa in accounting principles, practices or methods or (D) any increase in the compensation payable or that could become payable by the Company Napa or any of its Subsidiaries to officers or key employees or any amendment of any of the Benefit Plans other than increases or amendments in the ordinary and usual course consistent with past practice.
Appears in 1 contract
Reports; Financial Statements. (i) The CompanyNapa’s consolidated financial statements (including, in each case, any notes thereto) since December 31, 2009 2014 (the “Applicable Date”) were or 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 or, in the case of interim consolidated financial statements, where information and footnotes contained in such financial statements are not required to be in compliance with GAAP), and in each case such consolidated financial statements fairly presented, in all material respects, the consolidated financial position, results of operations and cash flows of the Company Napa and the consolidated Subsidiaries of the Company Napa as of the respective dates thereof and for the respective periods covered thereby (subject, in the case of unaudited statements, to normal year-end adjustments which were not and which are not expected to be, individually or in the aggregate, material to the Company Napa and its consolidated Subsidiaries taken as a whole).
(ii) The Company Napa maintains disclosure controls and procedures substantially similar to those required by Rule 13a-15 or 15d-15 under the Exchange Act. Such disclosure controls and procedures that are effective to ensure that information required to be disclosed by the Company Napa is recorded and reported on a timely basis to the individuals responsible for the preparation of the CompanyNapa’s public disclosure documents. The -28- Company Napa maintains internal control over financial reporting (as defined in Rule -21- 13a-15 or 15d-15, as applicable, under the Exchange Act). Such internal control over financial reporting is effective in providing reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles and includes policies and procedures that (i) pertain to the maintenance of records that in reasonable detail accurately and fairly reflect the transactions and dispositions of the asset of the CompanyNapa, (ii) provide reasonable assurance that transactions are recorded as necessary to permit preparation of financial statements in accordance with generally accepted accounting principles, and that receipts and expenditures of the Company Napa are being made only in accordance with authorizations of management and directors of the CompanyNapa, and (iii) provide reasonable assurance regarding prevention or timely detection of unauthorized acquisition, use or disposition of the CompanyNapa’s assets that could have a material effect on its financial statements.
(iii) The Company Napa has disclosed, based on the most recent evaluation of its chief executive officer and its chief financial officer prior to the date hereof, to the CompanyNapa’s auditors and the audit committee of the CompanyNapa’s board of directors (A) any significant deficiencies in the design or operation of its internal controls over financial reporting that are reasonably likely to adversely affect the CompanyNapa’s ability to record, process, summarize and report financial information and has identified for the CompanyNapa’s auditors and audit committee of the CompanyNapa’s board of directors any material weaknesses in internal control over financial reporting and (B) any fraud, whether or not material, that involves management or other employees who have a significant role in the CompanyNapa’s internal control over financial reporting. The Company Napa has made available to Parent (i) a summary of any such disclosure made by management to the CompanyNapa’s auditors and audit committee since the Applicable Date and (ii) any material communication since the Applicable Date made by management or the CompanyNapa’s auditors to the audit committee required, required by the audit committee’s charter or professional standards of the Public Company Accounting Oversight Board. Since the Applicable Date, no material complaints from any source regarding accounting, internal accounting controls or auditing matters, and no concerns from Company Napa employees regarding questionable accounting or auditing matters, have been received by the CompanyNapa. The Company Napa has made available to Parent a summary of all material complaints or concerns relating to other matters made since the Applicable Date through the CompanyNapa’s whistleblower hot-line or equivalent system for receipt of employee concerns regarding possible violations of Law. No attorney representing the Company Napa or any of its Subsidiaries, whether or not employed by the Company Napa or any of its Subsidiaries, has reported evidence of a violation of securities laws, breach of fiduciary duty or similar violation by the Company Napa or any of its officers, directors, employees or agents to the CompanyNapa’s chief legal officer, audit committee (or other committee designated for the purpose) of the board of directors or the board of directors.
(iv) The Company Napa and its Subsidiaries have timely filed all reports and statements, together with any amendments required to be made with respect thereto, that they were required to file since December 31, 2009 2014 with (A) the Federal Reserve Board OCC and (B) any other Regulatory Authority, and all other material reports and statements required to be filed by it since December 31, 20092014, including, without limitation, the rules and regulations of the FDIC, the DFI OCC or any other Regulatory Authority, and has paid all fees and assessments due and payable -22- in connection therewith. As of their respective dates, such reports and statements complied in all material respects with all the laws, rules and regulations of the applicable Regulatory Authority with which they were filed.
(v) Since December 31, 20122016, neither the Company Napa nor any of its Subsidiaries has incurred any obligations or liabilities (whether or not accrued, contingent or otherwise and whether or not required to be disclosed, including those related to environmental and occupational safety and health matters) other than in the ordinary and usual course of business consistent with past practice (excluding the incurrence of expenses related to this Agreement and the transactions contemplated hereby).
(vi) Since December 31, 20122016, (A) each of the Company Napa and each of its Subsidiaries has conducted its business only in, and has not engaged in any material transaction other than according to, the ordinary and usual course of such business consistent with past practice and (B) 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 5.02 or otherwise) has had or could be reasonably likely to have a Company Napa Material Adverse Effect or prevent, materially delay or materially impair the ability of the Company Napa to consummate the transactions contemplated by this Agreement.
(vii) Since December 31, 20122016, there has not been (A) any material damage, destruction or other casualty loss with respect to any material asset or property owned, leased or otherwise used by the Company Napa or any Subsidiary of the CompanyNapa, whether or not covered by insurance, (B) any declaration, setting aside or payment of any dividend or other distribution in cash, stock or property in respect of the capital stock of the CompanyNapa, (C) any change by the Company Napa in accounting principles, practices or methods or (D) any increase in the compensation payable or that could become payable by the Company Napa or any of its Subsidiaries to officers or key employees or any amendment of any of the Benefit Plans other than increases or amendments in the ordinary and usual course consistent with past practice.. (h)
Appears in 1 contract
Sources: Merger Agreement
Reports; Financial Statements. (ia) As of the respective dates of their filing with the Commission, all reports, registration statements and other filings, together with any amendments thereto, filed by the Company with the Commission since December 26, 2002 (the “Company SEC Reports”), complied, in all material respects, with the applicable requirements of the Securities Act, the Exchange Act, and the rules and regulations of the Commission promulgated thereunder. The Company SEC Reports did not at the time they were filed with the Commission contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they are made, not misleading.
(b) The Company’s consolidated financial statements (including, in each case, any related schedules or notes thereto) since December 31, 2009 contained in or incorporated by reference in the Company SEC Reports (the “Applicable Date”i) were or will be have been prepared in accordance with GAAP the published rules and regulations of the Commission and generally accepted accounting principles consistently applied on a consistent basis throughout during the periods indicated involved (except as may be indicated in the notes thereto or, in the case of interim consolidated financial statements, where information thereto) and footnotes contained in such financial statements are not required to be in compliance with GAAP), and in each case such consolidated financial statements (ii) fairly presented, present in all material respects, respects the consolidated financial position, results of operations and cash flows position of the Company and the consolidated Subsidiaries of the Company its subsidiaries as of the respective dates thereof and the consolidated results of operations, statements of stockholders’ equity and cash flows for the respective periods covered thereby (subjectindicated, in the case of except that any unaudited statements, interim financial statements were or will be subject to normal and recurring year-end adjustments which were not and which are not expected to be, individually or in may omit footnote disclosure as permitted by regulations of the aggregate, material to the Commission.
(c) The Company and its consolidated Subsidiaries taken as a whole).
(ii) The Company maintains employ disclosure controls and procedures substantially similar to those required by Rule 13a-15 or 15d-15 under that are designed with the Exchange Act. Such disclosure controls and procedures are effective to ensure that objective of causing information required to be disclosed by the Company is recorded in the reports that it files or submits under the Exchange Act to be recorded, processed, summarized and reported on a timely basis reported, within the time periods specified in the Commission’s rules and forms, and to the individuals responsible for the preparation of be accumulated and communicated to the Company’s public management, including its principal executive officer or officers and principal financial officer or officers, as appropriate to allow timely decisions regarding disclosure.
(d) The Company has established and maintains disclosure documents. The -28- Company maintains internal control over financial reporting controls and procedures (as such term is defined in Rule 13a-15 or 15d-15, as applicable, and 15d-15 under the Exchange Act). Such internal control over ) as required by and in compliance with the Exchange Act; the principal executive officers (or their equivalents) and principal financial reporting is effective in providing reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles and includes policies and procedures that officers (ior their equivalents) pertain to the maintenance of records that in reasonable detail accurately and fairly reflect the transactions and dispositions of the asset of the Company, (ii) provide reasonable assurance that transactions are recorded as necessary to permit preparation of financial statements in accordance with generally accepted accounting principles, and that receipts and expenditures of the Company are being have made only in accordance with authorizations of management and directors of the Company, and (iii) provide reasonable assurance regarding prevention or timely detection of unauthorized acquisition, use or disposition of the Company’s assets that could have a material effect on its financial statements.
(iii) The Company has disclosed, based on the most recent evaluation of its chief executive officer and its chief financial officer prior to the date hereof, to the Company’s auditors and the audit committee of the Company’s board of directors (A) any significant deficiencies in the design or operation of its internal controls over financial reporting that are reasonably likely to adversely affect the Company’s ability to record, process, summarize and report financial information and has identified for the Company’s auditors and audit committee of the Company’s board of directors any material weaknesses in internal control over financial reporting and (B) any fraud, whether or not material, that involves management or other employees who have a significant role in the Company’s internal control over financial reporting. The Company has made available to Parent (i) a summary of any such disclosure made by management to the Company’s auditors and audit committee since the Applicable Date and (ii) any material communication since the Applicable Date made by management or the Company’s auditors to the audit committee required, the audit committee’s charter or professional standards of the Public Company Accounting Oversight Board. Since the Applicable Date, no material complaints from any source regarding accounting, internal accounting controls or auditing matters, and no concerns from Company employees regarding questionable accounting or auditing matters, have been received all certifications required by the Company. The Company has made available to Parent a summary ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of all material complaints or concerns relating to other matters made since 2002 (the Applicable Date through the Company’s whistleblower hot“▇▇▇▇▇▇▇▇-line or equivalent system for receipt of employee concerns regarding possible violations of Law. No attorney representing the Company or ▇▇▇▇▇ Act”) and any of its Subsidiaries, whether or not employed by the Company or any of its Subsidiaries, has reported evidence of a violation of securities laws, breach of fiduciary duty or similar violation by the Company or any of its officers, directors, employees or agents to the Company’s chief legal officer, audit committee (or other committee designated for the purpose) of the board of directors or the board of directors.
(iv) The Company and its Subsidiaries have timely filed all reports and statements, together with any amendments required to be made with respect thereto, that they were required to file since December 31, 2009 with (A) the Federal Reserve Board and (B) any other Regulatory Authority, and all other material reports and statements required to be filed by it since December 31, 2009, including, without limitation, the related rules and regulations of the FDIC, the DFI or any other Regulatory AuthorityCommission, and has paid all fees the statements contained in any such certification are complete and assessments due correct; and payable the Company is otherwise in connection therewith. As of their respective dates, such reports and statements complied in compliance with all material respects with all the lawsapplicable, rules and regulations effective provisions of the applicable Regulatory Authority with which they were filed▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act.
(v) Since December 31, 2012, neither the Company nor any of its Subsidiaries has incurred any obligations or liabilities (whether or not accrued, contingent or otherwise and whether or not required to be disclosed, including those related to environmental and occupational safety and health matters) other than in the ordinary and usual course of business consistent with past practice (excluding the incurrence of expenses related to this Agreement and the transactions contemplated hereby).
(vi) Since December 31, 2012, (A) each of the Company and each of its Subsidiaries has conducted its business only in, and has not engaged in any material transaction other than according to, the ordinary and usual course of such business consistent with past practice and (B) 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 5.02 or otherwise) has had or could be reasonably likely to have a Company Material Adverse Effect or prevent, materially delay or materially impair the ability of the Company to consummate the transactions contemplated by this Agreement.
(vii) Since December 31, 2012, there has not been (A) any material damage, destruction or other casualty loss with respect to any material asset or property owned, leased or otherwise used by the Company or any Subsidiary of the Company, whether or not covered by insurance, (B) any declaration, setting aside or payment of any dividend or other distribution in cash, stock or property in respect of the capital stock of the Company, (C) any change by the Company in accounting principles, practices or methods or (D) any increase in the compensation payable or that could become payable by the Company or any of its Subsidiaries to officers or key employees or any amendment of any of the Benefit Plans other than increases or amendments in the ordinary and usual course consistent with past practice.
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