SEC Documents; Financial Statements; Undisclosed Liabilities Sample Clauses: 226 Samples

SEC Documents; Financial Statements; Undisclosed Liabilities. (a) Parent has filed all reports, schedules, forms and registration statements with the SEC required to be filed by it pursuant to the Securities Act and the Securities Act Rules, or the Exchange Act and the Exchange Act Rules, in each such case since January 1, 2005 (collectively, and in each case including all annexes and schedules thereto and documents incorporated by reference therein, the “Parent SEC Documents”). As of their respective dates (or if subsequently amended or superseded by a filing prior to the date of this Agreement, on the date of such filing), the Parent SEC Documents complied as to form in all material respects with the requirements of the Securities Act or the Exchange Act, as the case may be, and the rules and regulations of the SEC promulgated thereunder applicable to such Parent SEC Documents, and none of the Parent SEC Documents as of such dates contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading. To Parent’s Knowledge, as of the date hereof, none of the Parent SEC Documents is the subject of ongoing SEC review. (b) Parent is in compliance with, and has complied, in all material respects with (i) the applicable provisions of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002 and the related rules and regulations promulgated thereunder, and (ii) the applicable listing and corporate governance rules and regulations of NASDAQ. Parent has established and maintains disclosure controls and procedures and internal control over financial reporting (as such terms are defined in paragraphs (e) and (f), respectively, of Rule 13a-15 under the Exchange Act) as required by Rule 13a-15 under the Exchange Act. Parent’s disclosure controls and procedures are reasonably designed to ensure that all material information required to be disclosed by Parent in the reports that it files or furnishes under the Exchange Act is recorded, processed, summarized and reported within the time periods specified in the rules and forms of the SEC, and that all such material information is accumulated and communicated to the management of Parent as appropriate to allow timely decisions regarding required disclosure and to make the certifications required pursuant to Sections 302 and 906 of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act. The management of Parent has completed its assessment of the effectiveness of Parent’s internal control over financial reporting in compliance with the requirements of Section 404 of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act for the year ended December 31, 2006, and such assessment concluded that such controls were effective to provide reasonable assurance regarding the reliability of Parent’s financial reporting and the preparation of Parent’s financial statements for external purposes in accordance with GAAP. Parent has disclosed, based on its assessment of the effectiveness of Parent’s internal control over financial reporting in compliance with the requirements of Section 404 of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act for the year ended December 31, 2006, to Parent’s independent registered accounting firm and the audit committee of the Board of Directors of Parent (A) any significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect Parent’s ability to record, process, summarize and report financial information and (B) any fraud, whether or not material, of which there is Parent’s Knowledge that involves management or other employees who have a significant role in Parent’s internal control over financial reporting for the year ended December 31, 2006. Parent any has made available to the Company a summary of any such disclosures made by management to such accounting firm or audit committee for the year ended December 31, 2006. (c) The consolidated financial statements of Parent included in the Parent SEC Documents (the “Parent SEC Financial Statements”) (i) have been prepared in accordance with GAAP (except as may be otherwise indicated therein or in the notes thereto and except, in the case of unaudited consolidated quarterly statements, as permitted by Form 10-Q of the Exchange Act), applied on a consistent basis during the periods involved, (ii) complied in all material respects with published rules and regulations of the SEC with respect thereto, and (iii) fairly present in all material respects the consolidated financial position of Parent and its consolidated Parent Subsidiaries as of the respective dates thereof and the consolidated statements of income, cash flows and changes in stockholders’ equity for the respective periods then ended (subject, in the case of unaudited quarterly statements, to normal year-end audit adjustments and the absence of footnotes). (d) As of March 31, 2007, neither Parent nor any of the Parent Subsidiaries had any liabilities or obligations that would have been required by GAAP to be reflected in the consolidated balance sheet of Parent and the Parent Subsidiaries as of such date, except (i) for such liabilities and obligations reflected, reserved against or otherwise disclosed in the consolidated balance sheet of Parent and the Parent Subsidiaries as of such date (including the notes thereto) that is included in the Parent SEC Financial Statements and (ii) for such liabilities and obligations as would not be reasonably expected to have, individually or in the aggregate, a Parent Material Adverse Effect (it is understood and agreed that the representations and warranties contained in this Section 5.5(d): (x) do not apply to matters described in any of Section 5.4, the other provisions of this Section 5.5, and Sections 5.7, 5.8, 5.9, 5.10, 5.11 and 5.17 (which are addressed exclusively in those Sections) and (y) shall not be deemed breached if such breach relates to a matter which is covered by a representation or warranty of Parent and Merger Sub contained in this Article V (other than this Section 5.5(d)) that contains a “Parent’s Knowledge” qualification). (e) Since December 31, 2006 to the date of this Agreement, (i) neither Parent nor any Parent Subsidiary nor, to Parent’s Knowledge, any director, officer, auditor, accountant or representative of Parent or any of the Parent Subsidiaries has received any written complaint, allegation, assertion or claim that Parent or any of the Parent Subsidiaries has engaged in improper or illegal accounting or auditing practices or maintains improper or inadequate internal accounting controls relating to Parent and the Parent Subsidiaries, taken as a whole, (ii) no attorney representing Parent or any Parent Subsidiary has made a report to Parent’s chief legal officer, chief executive officer or Board of Directors (or any committee thereof) pursuant to the SEC’s Standards of Professional Conduct for Attorneys (17 CFR Part 205), and (iii) Parent has disclosed to its outside auditors any fraud, whether or not material, of which there is Parent’s Knowledge that involves management or other employees who have a significant role in Parent’s internal control over financial reporting.

Appears in 4 contracts

Sources: Merger Agreement (North Pittsburgh Systems Inc), Merger Agreement (North Pittsburgh Systems Inc), Merger Agreement (Consolidated Communications Holdings, Inc.)

Appears in 4 contracts

Sources: Merger Agreement (North Pittsburgh Systems Inc), Merger Agreement (North Pittsburgh Systems Inc), Merger Agreement (Consolidated Communications Holdings, Inc.)

SEC Documents; Financial Statements; Undisclosed Liabilities. (a) Parent has filed all reports, schedules, ~~forms~~ forms, statements and ~~registration statements with the SEC~~ other documents required to be filed by ~~it pursuant to~~ Parent with the ~~Securities Act and the Securities Act Rules, or the Exchange Act and the Exchange Act Rules, in each such case~~ SEC since January 1, ~~2005~~ 2021 and prior to the date of this Agreement (~~collectively, and in each case including all annexes and schedules thereto and documents incorporated by reference therein,~~ the “Parent SEC Documents”). As of ~~their~~ its respective ~~dates (or if subsequently amended or superseded by a filing prior to the date of this Agreement~~date, ~~on the date of such filing), the~~ each Parent SEC ~~Documents~~ Document complied ~~as to form~~ in all material respects with the requirements of the Exchange Act, the Securities Act or the ~~Exchange~~ ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act, as the case may be, and the rules and regulations of the SEC promulgated thereunder applicable to such Parent SEC ~~Documents~~Document, ~~and none of~~ and, except to the extent that information contained in such Parent SEC ~~Documents as~~ Document has been revised, amended, modified or superseded (prior to the date of ~~such dates contained~~ this Agreement) by a later filed Parent SEC Document, did not contain any untrue statement of a material fact or ~~omitted~~ 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 were made, not misleading~~. To Parent’s Knowledge, as of the date hereof, none of the Parent SEC Documents is the subject of ongoing SEC review~~. (b) The consolidated financial statements of Parent is included in ~~compliance with~~the Parent SEC Documents, including the notes thereto and ~~has complied~~all related compilations, reviews and other reports issued by Parent’s accountants with respect thereto (the “Parent Financial Statements”), comply as to form in all material respects with ~~(i) the~~ applicable ~~provisions of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002~~ accounting requirements and the ~~related rules and regulations promulgated thereunder, and (ii) the applicable listing and corporate governance~~ published rules and regulations of ~~NASDAQ~~the SEC with respect thereto. The Parent Financial Statements fairly present the financial condition and the results of operations, cash flows and changes in stockholders’ equity of Parent (on a consolidated basis) as of the respective dates of and for the periods referred to in the Parent Financial Statements, all in accordance with GAAP. The Parent Financial Statements: (i) have been prepared from the books and records of Parent and the Parent Subsidiaries in accordance with GAAP consistently applied during the periods covered thereby (except as otherwise disclosed therein); (ii) are complete and correct in all material respects; and (iii) fairly present in all material respects the consolidated financial condition and the results of operations, cash flows and changes in stockholders’ equity of Parent (on a consolidated basis) as of the respective dates of and for the periods referred to in the Parent Financial Statements. The books and records of Parent and the Parent Subsidiaries are true and complete, have been maintained in accordance with sound business practices and accurately present and reflect in all material respects all of the transactions and actions therein described. (c) Parent and the Parent Subsidiaries do not have any liabilities or obligations of a nature required by GAAP to be reflected on a consolidated balance sheet of Parent or in the notes thereto, except (i) as disclosed, reflected or reserved against in the most recent balance sheet included in the Parent Financial Statements or the notes thereto, (ii) for liabilities and obligations incurred in the Ordinary Course of Business since the date of the most recent balance sheet included in the Parent Financial Statements, (iii) arising pursuant to this Agreement or the Ancillary Agreements to which Parent or any of the Parent Subsidiaries is a party or incurred in connection with the Merger or (iv) as would not reasonably be expected to, individually or in the aggregate, be material to Parent and the Parent Subsidiaries taken as a whole. This representation shall not be deemed breached as a result of changes in GAAP or in Law after the date hereof. (d) Parent maintains, and at all times since January 1, 2021, has ~~established and maintains disclosure controls and procedures and~~ maintained, a system of internal control over financial reporting (as ~~such terms are~~ defined in ~~paragraphs (e) and (f), respectively, of~~ Rule 13a-15 under the Exchange Act) reasonably designed to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with GAAP, and includes those 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 assets of Parent; (ii) provide reasonable assurance that transactions are recorded as ~~required by Rule 13a-15 under~~ necessary to permit preparation of financial statements in conformity with GAAP and that receipts and expenditures are being made only in accordance with authorizations of management and the ~~Exchange Act~~Parent Board; and (iii) provide reasonable assurance regarding prevention or timely detection of unauthorized acquisition, use or disposition of the assets of Parent that could have a material effect on the financial statements. Parent’s disclosure controls and procedures are reasonably designed to ensure that all material information required to be disclosed by Parent in the reports that it files or furnishes under the Exchange Act is recorded, processed, summarized and reported within the time periods specified in the rules and forms of the SEC, and that all such material information is accumulated and communicated to the management of Parent as appropriate to allow timely decisions regarding required disclosure and to make the certifications required pursuant to Sections 302 and 906 of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act. The management of Parent has completed ~~its~~ an assessment of the effectiveness of Parent’s system of internal control over financial reporting in compliance with the requirements of Section 404 of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act for the year ended December 31, ~~2006~~2022, and such assessment concluded that such controls were effective to provide reasonable assurance regarding the reliability of Parent’s financial reporting and the preparation of Parent’s financial statements for external purposes in accordance with GAAP. Parent has disclosedand, based on its assessment of the effectiveness of Parent’s internal control over financial reporting in compliance with the requirements of Section 404 of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act for the year ended December 31, 2006, to Parent’s independent registered accounting firm and the audit committee of the Board of Directors of Parent (A) any significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect Parent’s ability to record, process, summarize and report financial information and (B) any fraud, whether or not material, of which there is Parent’s Knowledge that involves management or other employees who have a significant role in Parent’s internal control over financial reporting for the year ended December 31, 2006. Parent any has made available to the Company a summary of any such disclosures made by management to such accounting firm or audit committee for the year ended December 31, 2006. (c) The consolidated financial statements of Parent included except as set forth in the Parent SEC Documents (the “Parent SEC Financial Statements”) (i) have been prepared in accordance with GAAP (except as may be otherwise indicated therein or in the notes thereto and except, in the case of unaudited consolidated quarterly statements, as permitted by Form 10-Q of the Exchange Act), applied on a consistent basis during the periods involved, (ii) complied in all material respects with published rules and regulations of the SEC with respect thereto, and (iii) fairly present in all material respects the consolidated financial position of Parent and its consolidated Parent Subsidiaries as of the respective dates thereof and the consolidated statements of income, cash flows and changes in stockholders’ equity for the respective periods then ended (subject, in the case of unaudited quarterly statements, to normal year-end audit adjustments and the absence of footnotes). (d) As of March 31, 2007, neither Parent nor any of the Parent Subsidiaries had any liabilities or obligations that would have been required by GAAP to be reflected in the consolidated balance sheet of Parent and the Parent Subsidiaries as of such date, except (i) for such liabilities and obligations reflected, reserved against or otherwise disclosed in the consolidated balance sheet of Parent and the Parent Subsidiaries as of such date (including the notes thereto) that is included in the Parent SEC Financial Statements and (ii) for such liabilities and obligations as would not be reasonably expected to have, individually or in the aggregate, a Parent Material Adverse Effect (it is understood and agreed that the representations and warranties contained in this Section 5.5(d): (x) do not apply to matters described in any of Section 5.4, the other provisions of this Section 5.5, and Sections 5.7, 5.8, 5.9, 5.10, 5.11 and 5.17 (which are addressed exclusively in those Sections) and (y) shall not be deemed breached if such breach relates to a matter which is covered by a representation or warranty of Parent and Merger Sub contained in this Article V (other than this Section 5.5(d)) that contains a “Parent’s Knowledge” qualification). (e) Since December 31, 2006 filed prior to the date of this Agreement, that assessment concluded that those controls were effective. (e) Parent maintains, and at all times since January 1, 2021, has maintained disclosure controls and procedures as defined in and required by Rule 13a-15 or 15d-15 under the Exchange Act that are designed to ensure that all information required to be disclosed (both financial and non-financial) in Parent’s reports that it files or submits under the Exchange Act is recorded, processed, summarized and reported within the time periods specified in the rules and forms of the SEC and that all such information is accumulated and communicated to Parent’s management as appropriate to allow timely decisions regarding required disclosure and to enable the principal executive officer of Parent and the principal financial officer of Parent to make the certifications required under the Exchange Act with respect to such reports. (f) Except as disclosed on Section 4.08(f) of the Parent Disclosure Schedules, Parent is in compliance in all material respects with all current listing and corporate governance requirements of the Nasdaq. Parent Common Stock is registered pursuant to Section 12(b) or 12(g) of the Exchange Act, and Parent has taken no action designed to, or which to Knowledge of Parent is likely to have the effect of, terminating the registration of Parent Common Stock under the Exchange Act, nor has Parent received any notification that the SEC is contemplating terminating such registration. Except as set forth in Section 4.08(f) of the Parent Disclosure Schedules, Parent has not, in the twelve (12) months preceding the date hereof, received notice from Nasdaq to the effect that Parent is not in compliance with the listing or maintenance requirements of Nasdaq. Except as disclosed on Section 4.08(f) of the Parent Disclosure Schedules, Parent is and upon consummation of the Merger has no reason to believe that it will not in the foreseeable future continue to be, in compliance with all such listing and maintenance requirements. Parent Common Stock is currently eligible for electronic transfer through the DTC or another established clearing corporation and Parent is current in payment of the fees to the DTC (or such other established clearing corporation) in connection with such electronic transfer. (g) Except for matters resolved prior to the date hereof, since January 1, 2021, (i) ~~neither Parent nor~~ none of Parent, any Parent Subsidiary or any of their respective directors or officers, nor, to the Knowledge of Parent~~’s Knowledge~~, any ~~director~~of their respective employees, ~~officer~~auditors, ~~auditor, accountant~~ accountants or ~~representative of Parent or any of the Parent Subsidiaries~~ other Representatives 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 Parent, any Parent Subsidiary or their respective internal accounting controls, including any complaint, allegation, assertion or claim that Parent or any Parent Subsidiary has engaged in questionable accounting or auditing practice, except as would not, individually or in the aggregate, reasonably be expected to be material to the preparation or accuracy of the Parent ~~Subsidiaries~~ Financial Statements and (ii) neither Parent nor any Parent Subsidiary has ~~engaged in improper~~ had any “material weakness” or ~~illegal~~ “significant deficiency” that has not been resolved to the satisfaction of Parent’s auditors. (h) Since January 1, 2021: (i) neither Parent nor any director or officer of Parent has received any oral or written complaint, allegation, assertion, or claim regarding the financial accounting, internal accounting controls, or auditing practices, procedures, methodologies, or methods of Parent or any oral or written complaint, allegation, assertion, or claim from employees of Parent regarding questionable financial accounting or auditing ~~practices or maintains improper or inadequate internal accounting controls relating~~ matters with respect to ~~Parent~~ Parent; and ~~the Parent Subsidiaries, taken as a whole,~~ (ii) no attorney representing Parent, whether or not employed by ▇▇▇▇▇▇, has reported credible evidence of any material violation of securities Laws, breach of fiduciary duty, or similar material violation by Parent or any of its officers, directors, employees, or agents to the Parent ~~Subsidiary has made a report to Parent’s chief legal officer, chief executive officer or~~ Board ~~of Directors (~~or any committee thereof~~) pursuant~~ , or to the ~~SEC’s Standards~~ chief executive officer, chief financial officer, or general counsel of ~~Professional Conduct for Attorneys (17 CFR Part 205), and (iii) Parent has disclosed to its outside auditors any fraud, whether or not material, of which there is~~ Parent~~’s Knowledge that involves management or other employees who have a significant role in Parent’s internal control over financial reporting~~.

Appears in 3 contracts

Sources: Merger Agreement (Applied Molecular Transport Inc.), Merger Agreement (Cyclo Therapeutics, Inc.), Merger Agreement (Cyclo Therapeutics, Inc.)

SEC Documents; Financial Statements; Undisclosed Liabilities. (a) ~~Parent~~ Monsoon has filed or furnished all reports, schedules, ~~forms~~ forms, statements, registration statements, prospectuses and ~~registration statements with the SEC~~ other documents required to be filed or furnished by it Monsoon with the SEC since January 1, 2014 pursuant to the Securities Act ~~and the Securities Act Rules,~~ or the Exchange Act ~~and the Exchange Act Rules, in each such case since January 1, 2005~~ (collectively, ~~and in each case including all annexes and schedules thereto and documents incorporated by reference therein,~~ the “~~Parent~~ Monsoon SEC Documents”). None of the Monsoon Subsidiaries are required to make any filings with the SEC. As of ~~their~~ its respective ~~dates~~ effective date (or in the case of Monsoon SEC Documents that are registration statements filed pursuant to the Securities Act) and as of its respective filing date (in the case of all other Monsoon SEC Documents) and, if ~~subsequently amended or superseded by a filing~~ amended, as of the date of the last amendment prior to the date of this Agreement, ~~on the date of such filing), the Parent~~ each Monsoon SEC ~~Documents~~ Document complied ~~as to form~~ in all material respects with the requirements of the Securities Act or the Exchange Act, as the case may be, and ~~the rules and regulations of the SEC promulgated thereunder applicable to such Parent SEC Documents, and~~ none of the ~~Parent~~ Monsoon SEC Documents as of such respective dates contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary ~~in order~~ to make the statements therein, in light of the circumstances under which they were made, not misleading~~. To Parent’s Knowledge, as of the date hereof, none of the Parent SEC Documents is the subject of ongoing SEC review~~. (b) ~~Parent~~ The audited consolidated financial statements and unaudited interim consolidated financial statements of Monsoon included or incorporated by reference in the Monsoon SEC Documents (including, in each case, any notes or schedules thereto) and all related compilations, reviews and other reports issued by Monsoon’s accountants with respect thereto (collectively, the “Monsoon Financial Statements”) (i) comply as to form in all material respects with applicable accounting requirements and the published rules and regulations of the SEC with respect thereto, (ii) present fairly in all material respects the financial condition and the results of operations, cash flows and changes in shareholders’ equity of Monsoon (on a consolidated basis) as of the respective dates of and for the periods referred to in the Monsoon Financial Statements, (iii) were prepared in accordance with IFRS, applied on a consistent basis during the periods covered (except as may be indicated in the notes thereto and subject, in the case of unaudited interim financial statements, to normal year-end adjustments and the absence of notes), and (iv) meet the requirements of Regulation S-X promulgated under the Securities Act and the Exchange Act. The books and records of Monsoon and its Subsidiaries are accurate and complete in all material respects, have been maintained in accordance with sound business practices and accurately present and reflect in all material respects all of the transactions and actions therein described and the Monsoon Financial Statements have been prepared, in all material respects, in accordance with such books and records. No financial statements of any Person other than Monsoon and its Subsidiaries are required by IFRS to be included in the consolidated financial statements of Monsoon. Except as required by IFRS, Monsoon has not, between January 1, 2014 and each of the date of this Agreement and the Closing Date, as applicable, made or adopted any material change in its accounting methods, practices or policies in effect on January 1, 2014. (c) Monsoon is in compliance ~~with, and has complied,~~ in all material respects with (i) the applicable provisions of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002 and the related rules and regulations promulgated ~~thereunder,~~ thereunder (the “▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act”) and (ii) the applicable listing and corporate governance rules and regulations of NASDAQ. (d) To the knowledge of Monsoon, there are no outstanding or unresolved comments in comment letters received from the SEC staff with respect to any Monsoon SEC Documents and none of the Monsoon SEC Documents is the subject of ongoing SEC review. ~~Parent~~ There are no internal investigations, any SEC inquiries or investigations or other governmental inquiries or investigations, to the knowledge of Monsoon, pending or threatened, in each case regarding any accounting practices of Monsoon. (e) Monsoon has established and maintains disclosure controls and procedures and internal control over financial reporting (as such terms are defined in paragraphs (e) and (f), respectively, of Rule 13a-15 and paragraph (e) of Rule 15d-15 under the Exchange Act) as required by ~~Rule~~ Rules 13a-15 and 15d-15 under the Exchange Act. ~~Parent~~Monsoon’s disclosure controls and procedures are ~~reasonably~~ designed to ensure that all ~~material~~ information (both financial and non-financial) required to be disclosed by ~~Parent~~ Monsoon in the reports that it files or furnishes under the Exchange Act is recorded, processed, summarized and reported within the time periods specified in the rules and forms of the SEC, and that all such ~~material~~ information is accumulated and communicated to ~~the~~ Monsoon’s management ~~of Parent~~ as appropriate to allow timely decisions regarding required disclosure and to make the certifications required pursuant to Sections 302 and 906 of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act. ~~The~~ Monsoon’s management ~~of Parent~~ has completed ~~its~~ an assessment of the effectiveness of ~~Parent~~Monsoon’s disclosure controls and procedures and, to the extent required by applicable Law, presented in any applicable Monsoon SEC Document that is a report on Form 20-F or filed on Form 6-K, or any amendment thereto, its conclusions about the effectiveness of the disclosure controls and procedures as of the end of the period covered by such report or amendment based on such evaluation. As of the date hereof, based on Monsoon management’s most recently completed evaluation of Monsoon’s internal control over financial ~~reporting in compliance with the requirements of Section 404 of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act for the year ended December 31~~reporting, 2006, and such assessment concluded that such controls were effective to provide reasonable assurance regarding the reliability of Parent’s financial reporting and the preparation of Parent’s financial statements for external purposes in accordance with GAAP. Parent has disclosed, based on its assessment of the effectiveness of Parent’s internal control over financial reporting in compliance with the requirements of Section 404 of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act for the year ended December 31, 2006, to Parent’s independent registered accounting firm and the audit committee of the Board of Directors of Parent (Ai) ~~any~~ Monsoon had no significant deficiencies ~~and~~ or material weaknesses in the design or operation of its internal control over financial reporting ~~which are~~ that would reasonably ~~likely~~ be expected to adversely affect ~~Parent~~Monsoon’s ability to record, process, summarize and report financial information and (Bii) Monsoon does not have knowledge of any fraud, whether or not material, ~~of which there is Parent’s Knowledge~~ that involves management or other employees who have a significant role in ~~Parent~~Monsoon’s internal control over financial reporting for the year ended December 31, 2006. Parent any has made available to the Company a summary of any such disclosures made by management to such accounting firm or audit committee for the year ended December 31, 2006reporting. (cf) The consolidated financial statements of Parent included in the Parent SEC Documents (the “Parent SEC Financial Statements”) (i) have been prepared in accordance with GAAP (except as may be otherwise indicated therein or in the notes thereto and except, in the case of unaudited consolidated quarterly statements, as permitted by Form 10-Q of the Exchange Act), applied on a consistent basis during the periods involved, (ii) complied in all material respects with published rules and regulations of the SEC with respect thereto, and (iii) fairly present in all material respects the consolidated financial position of Parent Monsoon and its ~~consolidated Parent~~ Subsidiaries as of the respective dates thereof and the consolidated statements of income, cash flows and changes in stockholders’ equity for the respective periods then ended (subject, in the case of unaudited quarterly statements, to normal year-end audit adjustments and the absence of footnotes). (d) As of March 31, 2007, neither Parent nor do not have any of the Parent Subsidiaries had any liabilities or obligations that would have been required by GAAP to be reflected in the consolidated balance sheet of Parent and the Parent Subsidiaries as of such dateLiabilities, except (i) ~~for such liabilities and obligations~~ as disclosed, reflected, provided for or reserved against ~~or otherwise disclosed~~ in the most recent audited balance sheet included in the Monsoon Financial Statements or the notes thereto and the quarter end consolidated balance ~~sheet~~ sheets of ~~Parent~~ Monsoon included in subsequent quarterly period reports filed prior to the date hereof (such audited and ~~the Parent Subsidiaries as of such date (including~~ quarter end balance sheets, together with the notes thereto~~) that is included in~~ , the ~~Parent SEC Financial Statements and~~ “Monsoon Balance Sheet”), (ii) for ~~such liabilities~~ Liabilities incurred in the ordinary course of business since the date of the Monsoon Balance Sheet, (iii) for Liabilities arising out of or in connection with this Agreement, the other Transaction Documents or the Transactions and ~~obligations as would not be reasonably expected to have~~(iv) for Liabilities that, individually or in the aggregate, have not had, and would not reasonably be expected to have, a ~~Parent~~ Monsoon Material Adverse Effect (it is understood and agreed that the representations and warranties contained in this Section 5.5(d): (x) do not apply to matters described in any of Section 5.4, the other provisions of this Section 5.5, and Sections 5.7, 5.8, 5.9, 5.10, 5.11 and 5.17 (which are addressed exclusively in those Sections) and (y) shall not be deemed breached if such breach relates to a matter which is covered by a representation or warranty of Parent and Merger Sub contained in this Article V (other than this Section 5.5(d)) that contains a “Parent’s Knowledge” qualification)Effect. (eg) ~~Since December 31, 2006 to the date of this Agreement, (i) neither Parent~~ Neither Monsoon nor any ~~Parent~~ Monsoon Subsidiary ~~nor~~is a party to, or has any Contract to ~~Parent’s Knowledge~~become a party to, any ~~director~~joint venture, ~~officer, auditor, accountant or representative of Parent~~ off-balance sheet partnership or any ~~of the Parent Subsidiaries has received~~ similar Contract, including any ~~written complaint, allegation, assertion~~ Contract relating to any transaction or ~~claim that Parent~~ relationship between or among Monsoon or any of Monsoon Subsidiary, on the ~~Parent Subsidiaries has engaged in improper~~ one hand, and any unconsolidated affiliate, including any structured finance, special purpose or ~~illegal accounting~~ limited purpose entity or ~~auditing practices or maintains improper or inadequate internal accounting controls relating to Parent and~~ Person, on the ~~Parent Subsidiaries~~other hand, ~~taken as a whole, (ii) no attorney representing Parent~~ or any ~~Parent Subsidiary has made a report~~ off-balance sheet arrangements where the purpose of such Contract is to ~~Parent’s chief legal officer~~avoid disclosure of any material transaction involving, ~~chief executive officer~~ or ~~Board of Directors (~~material liabilities of, Monsoon in the Monsoon Financial Statements or any committee thereof) pursuant to the SEC’s Standards of Professional Conduct for Attorneys (17 CFR Part 205), and (iii) Parent has disclosed to its outside auditors any fraud, whether or not material, of which there is Parent’s Knowledge that involves management or other employees who have a significant role in Parent’s internal control over financial reportingMonsoon SEC Documents.

Appears in 3 contracts

Sources: Transaction Agreement, Transaction Agreement (Naspers LTD), Transaction Agreement (MakeMyTrip LTD)

SEC Documents; Financial Statements; Undisclosed Liabilities. (a) ~~Parent~~ The Company has filed or furnished all reports, schedules, ~~forms~~ forms, statements, registration statements, prospectuses and ~~registration statements with the SEC~~ other documents (including exhibits and other information incorporated therein) required to be filed or furnished by ~~it pursuant to~~ the Company with the SEC under the Securities Act ~~and the Securities Act Rules,~~ or the Exchange Act ~~and the Exchange Act Rules, in each such case~~ since January 1, ~~2005~~ 2013 (~~collectively~~such documents, ~~and in each case including all annexes and schedules thereto and~~ together with any documents ~~incorporated~~ filed or furnished during such period by ~~reference therein~~the Company to the SEC on a voluntary basis, the “~~Parent~~ Company SEC Documents”). No Company Subsidiary is, or has at any time since January 1, 2013 been, subject to the periodic reporting requirements of the Exchange Act or is or has been otherwise required to file any form, report, statement, schedule, certificate or other document with the SEC, any foreign Governmental Entity that performs a similar function to that of the SEC or any securities exchange or quotation system. (b) As of ~~their~~ its respective ~~dates (or~~ date, or, if ~~subsequently~~ amended ~~or superseded by a filing~~ prior to the date hereof, as of ~~this Agreement, on~~ the date of the last such ~~filing)~~amendment, each of the ~~Parent~~ Company SEC Documents complied ~~as to form~~ when filed or furnished (or, if applicable, when amended) in all material respects with the requirements of the Securities ~~Act or~~ Act, the Exchange ~~Act, as the case may be,~~ Act and the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002 and the related rules and regulations ~~of the SEC~~ promulgated thereunder or under the Exchange Act (the “▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act”), in each case to the extent applicable to such ~~Parent~~ Company SEC Documents, and none of the ~~Parent~~ Company SEC Documents as when filed or furnished (or in the case of ~~such dates~~ a registration statement under the Securities Act, at the time it was declared effective) contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not ~~misleading. To Parent’s Knowledge~~misleading (and no Company SEC Document that is a registration statement, as amended or supplemented, if applicable, filed pursuant to the Securities Act, as of the date ~~hereof~~such registration statement or amendment became effective, ~~none~~ contained any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary to make the ~~Parent SEC Documents is the subject of ongoing SEC review~~statements therein not misleading). (bc) ~~Parent~~ The consolidated financial statements of the Company included in the Company SEC Documents (including, in each case, any notes or schedules thereto) and all related compilations, reviews and other reports issued by the Company’s accountants with respect thereto (the “Company SEC Financial Statements”), have been derived from the accounting books and records of the Company and the Company Subsidiaries and (i) as of their respective dates of filing with the SEC complied as to form in all material respects with applicable accounting requirements and the published rules and regulations of the SEC with respect thereto, (ii) were prepared in accordance with GAAP applied on a consistent basis during the periods involved (except as may be indicated in the notes thereto and except, in the case of the unaudited interim statements, as may be permitted by Form 10-Q and Regulation S-X of the SEC) and (iii) fairly present, in all material respects, the consolidated financial position of the Company and the Company Subsidiaries, as at the respective dates thereof, and the consolidated results of their operations, and, where included, their consolidated stockholders’ equity and their consolidated cash flows for the respective periods indicated (subject, in the case of the unaudited statements, to normal year-end audit adjustments (which are not material in significance or amount) and the absence of notes). No financial statements of any Person other than the Company and the Company Subsidiaries are required by GAAP to be included in the consolidated financial statements of the Company. Except as required by GAAP and disclosed in the Company SEC Documents, between January 1, 2013 and the date of this Agreement, the Company has not made or adopted any material change in its accounting methods, practices or policies. (d) The Company is in compliance ~~with, and has complied,~~ in all material respects with (i) the applicable provisions of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act ~~of 2002 and the related rules and regulations promulgated thereunder,~~ and (ii) the applicable listing and corporate governance rules and regulations of ~~NASDAQ~~the NYSE. (e) There are no outstanding or unresolved comments in comment letters received from the SEC staff with respect to any Company SEC Documents and none of the Company SEC Documents (other than confidential treatment requests) is, to the Knowledge of the Company, the subject of ongoing SEC review. ~~Parent~~ There are no internal investigations, any SEC inquiries or investigations or other governmental inquiries or investigations pending or, to the Knowledge of the Company, threatened, in each case regarding any accounting practices of the Company. (f) Since January 1, 2013, the Company has ~~established~~ designed and ~~maintains~~ maintained disclosure controls and procedures and internal control over financial reporting (as such terms are defined in ~~paragraphs (e) and (f), respectively, of~~ Rule 13a-15 and Rule 15d-15 under the Exchange Act) as required by ~~Rule~~ Rules 13a-15 and 15d-15 under the Exchange Act. ~~Parent~~The Company’s disclosure controls and procedures are ~~reasonably~~ designed to ensure that all ~~material~~ information (both financial and non-financial) required to be disclosed by ~~Parent~~ the Company in the reports that it files or furnishes under the Exchange Act is recorded, processed, summarized and reported within the time periods specified in the rules and forms of the SEC, and that all such ~~material~~ information is accumulated and communicated to the Company’s management ~~of Parent~~ as appropriate to allow timely decisions regarding required disclosure and to make the certifications required pursuant to Sections 302 and 906 of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act. The Company’s management ~~of Parent~~ has completed ~~its~~ an assessment of the effectiveness of ~~Parent~~the Company’s disclosure controls and procedures and, to the extent required by applicable Law, presented in any applicable Company SEC Document that is a report on Form 10-K or Form 10-Q, or any amendment thereto, its conclusions about the effectiveness of the disclosure controls and procedures as of the end of the period covered by such report or amendment based on such evaluation. Based on Company management’s most recently completed evaluation of the Company’s internal control over financial ~~reporting in compliance with~~ reporting, (i) the requirements of Section 404 of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act for the year ended December 31, 2006, and such assessment concluded that such controls were effective to provide reasonable assurance regarding the reliability of Parent’s financial reporting and the preparation of Parent’s financial statements for external purposes in accordance with GAAP. Parent has disclosed, based on its assessment of the effectiveness of Parent’s internal control over financial reporting in compliance with the requirements of Section 404 of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act for the year ended December 31, 2006, to Parent’s independent registered accounting firm and the audit committee of the Board of Directors of Parent (A) any Company had no significant deficiencies ~~and~~ or material weaknesses in the design or operation of its internal control over financial reporting ~~which are~~ that would reasonably ~~likely~~ be expected to adversely affect ~~Parent~~the Company’s ability to record, process, summarize and report financial information and (Bii) the Company does not have Knowledge of any fraud, whether or not material, ~~of which there is Parent’s Knowledge~~ that involves management or other employees who have a significant role in ~~Parent~~the Company’s internal control over financial ~~reporting for~~ reporting. Since January 1, 2013, to the ~~year ended December 31~~Knowledge of the Company, ~~2006. Parent any~~ no executive officer or director of the Company has ~~made available~~ received or otherwise had or obtained knowledge of, and to the Knowledge of the Company, no auditor, accountant, or representative of the Company has provided written notice to the Company or any executive officer or director of, any substantive complaint or allegation that the Company or any Company Subsidiary has engaged in improper accounting practices. Since January 1, 2013, to the Knowledge of the Company, no attorney representing the Company or any Company Subsidiary has reported to the Company Board or any committee thereof or to any current director or executive officer of the Company evidence of a ~~summary~~ material violation of United States or other securities Laws or breach of fiduciary duty by the Company or any ~~such disclosures made by management to such accounting firm~~ of its executive officers or ~~audit committee for the year ended December 31, 2006~~directors. (cg) The consolidated financial statements of Parent included in the Parent SEC Documents (the “Parent SEC Financial Statements”) (i) have been prepared in accordance with GAAP (except as may be otherwise indicated therein or in the notes thereto and except, in the case of unaudited consolidated quarterly statements, as permitted by Form 10-Q of the Exchange Act), applied on a consistent basis during the periods involved, (ii) complied in all material respects with published rules and regulations of the SEC with respect thereto, and (iii) fairly present in all material respects the consolidated financial position of Parent and its consolidated Parent Subsidiaries as of the respective dates thereof Company and the consolidated statements of income, cash flows and changes in stockholders’ equity for the respective periods then ended (subject, in the case of unaudited quarterly statements, to normal year-end audit adjustments and the absence of footnotes). (d) As of March 31, 2007, neither Parent nor any of the Parent Company Subsidiaries ~~had~~ do not have any liabilities or obligations ~~that would have been required by GAAP to be reflected in the consolidated balance sheet~~ of ~~Parent~~ any nature (whether absolute or contingent, asserted or unasserted, known or unknown, primary or secondary, direct or indirect, and ~~the Parent Subsidiaries as of such date~~whether or not accrued), except (i) for such liabilities and obligations reflected, reserved against or otherwise disclosed in the consolidated balance sheet of Parent and the Parent Subsidiaries as of such date (including the notes thereto) that is included in the Parent SEC Financial Statements and (ii) for such liabilities and obligations as would not be reasonably expected to havethose that, individually or in the aggregate, have not had and would not reasonably be expected to have a ~~Parent~~ Company Material Adverse ~~Effect~~ Effect, (~~it is understood~~ ii) as reflected or reserved against in the most recent audited balance sheet included in the Company SEC Financial Statements or the notes thereto, (iii) for liabilities and ~~agreed that~~ obligations incurred in the ~~representations and warranties contained in this Section 5.5(d): (x) do not apply to matters described in any~~ ordinary course of Section 5.4, the other provisions of this Section 5.5, and Sections 5.7, 5.8, 5.9, 5.10, 5.11 and 5.17 (which are addressed exclusively in those Sections) and (y) shall not be deemed breached if such breach relates to a matter which is covered by a representation or warranty of Parent and Merger Sub contained in this Article V (other than this Section 5.5(d)) that contains a “Parent’s Knowledge” qualification). (e) Since December 31, 2006 to business since the date of the most recent audited balance sheet included in the Company SEC Financial Statements and (iv) for liabilities and obligations arising out of or in connection with this Agreement, ~~(i) neither Parent~~ the Transactions or the Pinnacle Merger Agreement. Neither the Company nor any ~~Parent Subsidiary nor~~of the Company Subsidiaries is a party to, or has any commitment to ~~Parent’s Knowledge~~become a party to, any ~~director~~joint venture, ~~officer~~off-balance sheet partnership or any similar Contract or arrangement (including any Contract or arrangement relating to any transaction or relationship between or among the Company and any of the Company Subsidiaries, ~~auditor~~on the one hand, ~~accountant~~ and any unconsolidated Affiliate, including any structured finance, special purpose or ~~representative~~ limited purpose entity or Person, on the other hand, or any material “off-balance sheet arrangement” (as defined in Item 303(a) of ~~Parent~~ Regulation S-K of the Exchange Act)), where the result, purpose or intended effect of such Contract or arrangement is to avoid disclosure of any material transaction involving, or material liabilities of, the Company or any of the ~~Parent~~ Company Subsidiaries ~~has received any written complaint, allegation, assertion or claim that Parent or any of~~ in the Parent Subsidiaries has engaged in improper or illegal accounting or auditing practices or maintains improper or inadequate internal accounting controls relating to Parent and the Parent Subsidiaries, taken as a whole, (ii) no attorney representing Parent or any Parent Subsidiary has made a report to Parent’s chief legal officer, chief executive officer or Board of Directors (or any committee thereof) pursuant to the SEC’s Standards of Professional Conduct for Attorneys (17 CFR Part 205), and (iii) Parent has disclosed to its outside auditors any fraud, whether or not material, of which there is Parent’s Knowledge that involves management Company SEC Financial Statements or other ~~employees who have a significant role in Parent’s internal control over financial reporting~~Company SEC Documents.

Appears in 3 contracts

Sources: Merger Agreement (Hillshire Brands Co), Merger Agreement (Tyson Foods Inc), Merger Agreement (Tyson Foods Inc)

SEC Documents; Financial Statements; Undisclosed Liabilities. (ai) ~~Parent~~ RVI has ~~filed~~ timely filed, or furnished, as applicable, all reports, schedules, ~~forms and~~ registration statements ~~with the SEC~~ and other documents required to be filed or submitted by it with the SEC pursuant to the Securities ~~Act and the Securities Act Rules~~Act, or the Exchange Act ~~and the Exchange Act Rules~~or other applicable securities statutes, ~~in each such case~~ regulations, policies, rules or interpretations thereof since January 1, ~~2005~~ 2008 (~~collectively, and in each case including all annexes and schedules thereto and documents incorporated by reference therein,~~ the “~~Parent~~ RVI SEC Documents”). As of their respective dates of filing with the SEC (or or, if ~~subsequently~~ amended or superseded by a filing prior to the date hereof, as of ~~this Agreement, on~~ the date of such filing), the ~~Parent~~ RVI SEC Documents complied ~~as to form~~ in all material respects with the requirements of the Securities Act or the Exchange Act, as the case may be, and the rules and regulations of the SEC ~~promulgated~~ thereunder applicable to such ~~Parent~~ RVI SEC Documents, and none of the ~~Parent~~ RVI SEC Documents when filed (or, if amended or superseded by a filing prior to the date hereof, as of the date of such ~~dates~~ filing) contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary ~~in order~~ to make the statements therein, in light of the circumstances under which they were made, not misleading. ~~To Parent’s Knowledge, as of the date hereof, none of the Parent~~ The RVI SEC Documents ~~is the subject of ongoing SEC review. (b) Parent is in compliance with, and has complied, in~~ included all material respects with (i) the applicable provisions of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002 and the related rules and regulations promulgated thereunder, and (ii) the applicable listing and corporate governance rules and regulations of NASDAQ. Parent has established and maintains disclosure controls and procedures and internal control over financial reporting (as such terms are defined in paragraphs (e) and (f), respectively, of Rule 13a-15 under the Exchange Act) as required by Rule 13a-15 under the Exchange Act. Parent’s disclosure controls and procedures are reasonably designed to ensure that all material information certificates required to be disclosed by Parent in the reports that it files or furnishes under the Exchange Act is recorded, processed, summarized and reported within the time periods specified in the rules and forms of the SEC, and that all such material information is accumulated and communicated to the management of Parent as appropriate to allow timely decisions regarding required disclosure and to make the certifications required included therein pursuant to Sections 302 and 906 of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002, as amended, and the rules and regulations promulgated thereunder (the “▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act~~. The management of Parent has completed its assessment of~~ ”), and the ~~effectiveness of Parent’s~~ internal control ~~over financial reporting in compliance with the requirements~~ report and attestation of RVI’s outside auditors required by Section 404 of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ ~~Act for~~ Act. RVI has not received any written comments from the ~~year ended December 31, 2006, and such assessment concluded~~ SEC staff that such controls were effective to provide reasonable assurance regarding the reliability of Parent’s financial reporting and the preparation of Parent’s financial statements for external purposes in accordance with GAAP. Parent has disclosed, based on its assessment of the effectiveness of Parent’s internal control over financial reporting in compliance with the requirements of Section 404 of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act for the year ended December 31, 2006, to Parent’s independent registered accounting firm and the audit committee of the Board of Directors of Parent (A) any significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect Parent’s ability to record, process, summarize and report financial information and (B) any fraud, whether or have not material, of which there is Parent’s Knowledge that involves management or other employees who have a significant role in Parent’s internal control over financial reporting for the year ended December 31, 2006. Parent any has made available been resolved to the Company a summary of any such disclosures made by management to such accounting firm or audit committee for the year ended December 31, 2006. (c) The consolidated financial statements of Parent included in the Parent SEC Documents (the “Parent SEC Financial Statements”) (i) have been prepared in accordance with GAAP (except as may be otherwise indicated therein or in the notes thereto and except, in the case of unaudited consolidated quarterly statements, as permitted by Form 10-Q of the Exchange Act), applied on a consistent basis during the periods involved, (ii) complied in all material respects with published rules and regulations satisfaction of the SEC ~~with respect thereto~~staff. Since January 1, and (iii) fairly present in all material respects the consolidated financial position of Parent and its consolidated Parent Subsidiaries as of the respective dates thereof and the consolidated statements of income2008, cash flows and changes in stockholders’ equity for the respective periods then ended (subject, in the case of unaudited quarterly statements, to normal year-end audit adjustments and the absence of footnotes). (d) As of March 31, 2007, neither Parent nor any of the Parent Subsidiaries had any liabilities or obligations that would have been required by GAAP to be reflected in the consolidated balance sheet of Parent and the Parent Subsidiaries as of such date, except (i) for such liabilities and obligations reflected, reserved against or otherwise disclosed in the consolidated balance sheet of Parent and the Parent Subsidiaries as of such date (including the notes thereto) that is included in the Parent SEC Financial Statements and (ii) for such liabilities and obligations as would RVI has not ~~be reasonably expected to have, individually or in the aggregate,~~ received a Parent Material Adverse Effect (it is understood and agreed that the representations and warranties contained in this Section 5.5(d): (x) do not apply to matters described in any of Section 5.4, the other provisions of this Section 5.5, and Sections 5.7, 5.8, 5.9, 5.10, 5.11 and 5.17 (which are addressed exclusively in those Sections) and (y) shall not be deemed breached if such breach relates to a matter which is covered by a representation or warranty of Parent and Merger Sub contained in this Article V (other than this Section 5.5(d)) that contains a “Parent’s Knowledge” qualification). (e) Since December 31, 2006 to the date of this Agreement, (i) neither Parent nor any Parent Subsidiary nor, to Parent’s Knowledge, any director, officer, auditor, accountant or representative of Parent or any of the Parent Subsidiaries has received any written complaint, allegation, assertion or claim that Parent or any of the Parent Subsidiaries has engaged in improper or illegal accounting or auditing practices or maintains improper or inadequate internal accounting controls relating to Parent and the Parent Subsidiaries, taken as a whole, (ii) no attorney representing Parent or any Parent Subsidiary has made a report to Parent’s chief legal officer, chief executive officer or Board of Directors (or any committee thereof) pursuant to the SEC’s Standards of Professional Conduct for Attorneys (17 CFR Part 205), and (iii) Parent has disclosed to its outside auditors any fraud, whether or not material, of which there is Parent’s Knowledge that involves management stop order or other ~~employees who have a significant role in Parent’s internal control over financial reporting.~~order suspending the effectiveness or

Appears in 3 contracts

Sources: Merger Agreement (Retail Ventures Inc), Merger Agreement (DSW Inc.), Merger Agreement (Retail Ventures Inc)

SEC Documents; Financial Statements; Undisclosed Liabilities. (a) ~~Parent~~ Seller has filed all ~~reports, schedules, forms and registration statements~~ Seller SEC Documents (as defined below) on a timely basis. Section 2.6 of the Seller Disclosure Letter contains a complete list of all Seller SEC Documents filed by Seller or Seller Partnership with the SEC ~~required to be filed by it pursuant to the Securities Act and the Securities Act Rules, or the Exchange Act and the Exchange Act Rules, in each such case~~ since January 1, ~~2005 (collectively,~~ 1999 and ~~in each case including all annexes and schedules thereto and documents incorporated by reference therein, the “Parent SEC Documents”). As of their respective dates (~~on or ~~if subsequently amended or superseded by a filing~~ prior to the date of this Agreement~~, on~~ . All of the ~~date of such filing~~Seller SEC Documents (other than preliminary material), ~~the Parent SEC Documents~~ as of their respective filing dates, complied ~~as to form~~ in all material respects with ~~the~~ all applicable requirements of the Securities Act or of 1933, as amended (the "Securities Act"), and the Securities Exchange Act of 1934, as amended (the "Exchange Act"), ~~as the case may be~~and, ~~and~~ in each case, the rules and regulations ~~of the SEC~~ promulgated thereunder applicable to such ~~Parent~~ Seller SEC Documents~~, and none~~ . None of the ~~Parent~~ Seller SEC Documents as at the time of ~~such dates contained~~ filing contained, or will contain at the time of filing if not yet filed, any untrue statement of a material fact or ~~omitted~~ omitted, or will omit at the time of filing if not yet filed, to state a any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, except to the extent such statements have been modified or superseded by later Seller SEC Documents filed and publicly available. ~~To Parent’s Knowledge~~The consolidated financial statements of Seller included in the Seller SEC Documents complied (or, ~~as of~~ with respect to the Seller SEC Documents that have not been filed on or before the date hereof, ~~none of the Parent SEC Documents is the subject of ongoing SEC review. (b~~will comply) ~~Parent is in compliance with, and has complied,~~ as to form in all material respects with ~~(i) the~~ applicable ~~provisions of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002~~ accounting requirements and the related rules and regulations promulgated thereunder, and (ii) the applicable listing and corporate governance rules and regulations of NASDAQ. Parent has established and maintains disclosure controls and procedures and internal control over financial reporting (as such terms are defined in paragraphs (e) and (f), respectively, of Rule 13a-15 under the Exchange Act) as required by Rule 13a-15 under the Exchange Act. Parent’s disclosure controls and procedures are reasonably designed to ensure that all material information required to be disclosed by Parent in the reports that it files or furnishes under the Exchange Act is recorded, processed, summarized and reported within the time periods specified in the rules and forms of the SEC, and that all such material information is accumulated and communicated to the management of Parent as appropriate to allow timely decisions regarding required disclosure and to make the certifications required pursuant to Sections 302 and 906 of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act. The management of Parent has completed its assessment of the effectiveness of Parent’s internal control over financial reporting in compliance with the requirements of Section 404 of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act for the year ended December 31, 2006, and such assessment concluded that such controls were effective to provide reasonable assurance regarding the reliability of Parent’s financial reporting and the preparation of Parent’s financial statements for external purposes in accordance with GAAP. Parent has disclosed, based on its assessment of the effectiveness of Parent’s internal control over financial reporting in compliance with the requirements of Section 404 of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act for the year ended December 31, 2006, to Parent’s independent registered accounting firm and the audit committee of the Board of Directors of Parent (A) any significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect Parent’s ability to record, process, summarize and report financial information and (B) any fraud, whether or not material, of which there is Parent’s Knowledge that involves management or other employees who have a significant role in Parent’s internal control over financial reporting for the year ended December 31, 2006. Parent any has made available to the Company a summary of any such disclosures made by management to such accounting firm or audit committee for the year ended December 31, 2006. (c) The consolidated financial statements of Parent included in the Parent SEC Documents (the “Parent SEC Financial Statements”) (i) have been prepared in accordance with GAAP (except as may be otherwise indicated therein or in the notes thereto and except, in the case of unaudited consolidated quarterly statements, as permitted by Form 10-Q of the Exchange Act), applied on a consistent basis during the periods involved, (ii) complied in all material respects with published rules and regulations of the SEC with respect thereto, have been prepared (or will be prepared) in accordance with generally accepted accounting principles ("GAAP") (except, in the case of unaudited statements, as permitted by the applicable rules and regulations of the SEC) applied on a consistent basis during the periods involved (~~iii~~except as may be indicated in the notes thereto) and fairly ~~present~~ presented (or will fairly present) in all material ~~respects~~ respects, in accordance with the applicable requirements of GAAP and the applicable rules and regulations of the SEC, the consolidated financial position of ~~Parent~~ Seller and its ~~consolidated Parent Subsidiaries~~ Subsidiaries, as of the ~~respective~~ dates thereof and the consolidated ~~statements~~ results of ~~income,~~ operations and cash flows ~~and changes in stockholders’ equity~~ for the ~~respective~~ periods then ended (subject, in the case of unaudited ~~quarterly~~ statements, to normal year-end audit ~~adjustments and the absence of footnotes~~adjustments). Seller has no Subsidiaries which are not consolidated for accounting purposes. (db) As of March 31, 2007, neither Parent nor any of the Parent Subsidiaries had any liabilities or obligations that would have been required by GAAP to be reflected in the consolidated balance sheet of Parent and the Parent Subsidiaries as of such date, except Except (i) for ~~such~~ liabilities ~~and~~ or obligations ~~reflected, reserved against or otherwise disclosed~~ incurred in the ~~consolidated balance sheet~~ ordinary course of ~~Parent and the Parent Subsidiaries as of such date (including the notes thereto) that is included in the Parent SEC Financial Statements and~~ business, (ii) for ~~such~~ liabilities ~~and~~ or obligations incurred in connection with the transactions contemplated by this Agreement, or (iii) as ~~would not be reasonably expected to have~~disclosed in the Seller SEC Documents filed after December 31, ~~individually~~ 1998 or in the ~~aggregate~~Seller Disclosure Letter, ~~a Parent Material Adverse Effect~~ Seller and its Subsidiaries have no material liabilities or obligations (~~it is understood~~ whether absolute, accrued, contingent or otherwise). As used herein, "Seller SEC Documents" shall mean all reports, schedules, forms, statements and ~~agreed~~ other documents required to be filed by the Seller with the SEC since January 1, 1996; provided that ~~the~~ with respect to all representations and warranties ~~contained in this Section 5.5(d): (x) do not apply to matters described in any~~ of Section 5.4, the other provisions of this Section 5.5, and Sections 5.7, 5.8, 5.9, 5.10, 5.11 and 5.17 (which are addressed exclusively in those Sections) and (y) shall not be deemed breached if such breach relates to a matter which is covered by a representation or warranty of Parent and Merger Sub Seller contained in this Article V 2 (~~other than this~~ except those contained in Section ~~5.5(d~~2.6(a)~~) that contains a “Parent’s Knowledge” qualification~~)~~. (e) Since December 31~~, ~~2006~~ references to Seller SEC Documents shall refer only to those filings made prior to the date of this Agreement, (i) neither Parent nor any Parent Subsidiary nor, to Parent’s Knowledge, any director, officer, auditor, accountant or representative of Parent or any of the Parent Subsidiaries has received any written complaint, allegation, assertion or claim that Parent or any of the Parent Subsidiaries has engaged in improper or illegal accounting or auditing practices or maintains improper or inadequate internal accounting controls relating to Parent and the Parent Subsidiaries, taken as a whole, (ii) no attorney representing Parent or any Parent Subsidiary has made a report to Parent’s chief legal officer, chief executive officer or Board of Directors (or any committee thereof) pursuant to the SEC’s Standards of Professional Conduct for Attorneys (17 CFR Part 205), and (iii) Parent has disclosed to its outside auditors any fraud, whether or not material, of which there is Parent’s Knowledge that involves management or other employees who have a significant role in Parent’s internal control over financial reportinghereof.

Appears in 3 contracts

Sources: Merger Agreement (Berkshire Companies Limited Partnership), Merger Agreement (Blackstone Real Estate Acquisitions Iii LLC), Merger Agreement (Goldman Sachs Group Lp)

SEC Documents; Financial Statements; Undisclosed Liabilities. (a) ~~Parent~~ Seller has filed all ~~reports, schedules, forms and registration statements~~ Seller SEC Documents (as defined below) on a timely basis. Section 2.5(a) of the Seller Disclosure Letter contains a complete list of all Seller SEC Documents filed by Seller or Seller Partnership with the SEC ~~required to be filed by it pursuant to the Securities Act and the Securities Act Rules, or the Exchange Act and the Exchange Act Rules, in each such case~~ since January 1, ~~2005~~ 1999 and on or prior to the date of this Agreement. All of the Seller SEC Documents (~~collectively~~other than preliminary material and, ~~and in each case including all annexes and schedules thereto and documents incorporated by reference therein, the “Parent SEC Documents”). As of their respective dates (or~~ if ~~subsequently~~ amended or superseded by a filing prior to the date of this ~~Agreement~~Agreement or of the Closing Date, then on the date of such filing), ~~the Parent SEC Documents complied~~ as of their respective filing dates, did or, if not yet filed, will (i) comply as to form in all material respects with ~~the~~ all applicable requirements of the Securities Act or of 1933, as amended (the "Securities Act"), and the Securities Exchange Act of 1934, as amended (the "Exchange Act"), ~~as the case may be~~and, ~~and~~ in each case, the rules and regulations ~~of the SEC~~ promulgated thereunder applicable to such ~~Parent SEC Documents, and none of the Parent~~ Seller SEC Documents ~~as of such dates contained~~ and (ii) not contain any untrue statement of a material fact or ~~omitted~~ omit to state a any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading. ~~To Parent’s Knowledge, as~~ The consolidated financial statements of Seller included in the ~~date hereof, none of the Parent~~ Seller SEC Documents ~~is the subject of ongoing SEC review.~~ did (bor, if not yet filed, upon filing will) ~~Parent is in compliance with, and has complied,~~ comply as to form in all material respects with ~~(i) the~~ applicable ~~provisions of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002~~ accounting requirements and the related rules and regulations promulgated thereunder, and (ii) the applicable listing and corporate governance rules and regulations of NASDAQ. Parent has established and maintains disclosure controls and procedures and internal control over financial reporting (as such terms are defined in paragraphs (e) and (f), respectively, of Rule 13a-15 under the Exchange Act) as required by Rule 13a-15 under the Exchange Act. Parent’s disclosure controls and procedures are reasonably designed to ensure that all material information required to be disclosed by Parent in the reports that it files or furnishes under the Exchange Act is recorded, processed, summarized and reported within the time periods specified in the rules and forms of the SEC, and that all such material information is accumulated and communicated to the management of Parent as appropriate to allow timely decisions regarding required disclosure and to make the certifications required pursuant to Sections 302 and 906 of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act. The management of Parent has completed its assessment of the effectiveness of Parent’s internal control over financial reporting in compliance with the requirements of Section 404 of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act for the year ended December 31, 2006, and such assessment concluded that such controls were effective to provide reasonable assurance regarding the reliability of Parent’s financial reporting and the preparation of Parent’s financial statements for external purposes in accordance with GAAP. Parent has disclosed, based on its assessment of the effectiveness of Parent’s internal control over financial reporting in compliance with the requirements of Section 404 of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act for the year ended December 31, 2006, to Parent’s independent registered accounting firm and the audit committee of the Board of Directors of Parent (A) any significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect Parent’s ability to record, process, summarize and report financial information and (B) any fraud, whether or not material, of which there is Parent’s Knowledge that involves management or other employees who have a significant role in Parent’s internal control over financial reporting for the year ended December 31, 2006. Parent any has made available to the Company a summary of any such disclosures made by management to such accounting firm or audit committee for the year ended December 31, 2006. (c) The consolidated financial statements of Parent included in the Parent SEC Documents (the “Parent SEC Financial Statements”) (i) have been prepared in accordance with GAAP (except as may be otherwise indicated therein or in the notes thereto and except, in the case of unaudited consolidated quarterly statements, as permitted by Form 10-Q of the Exchange Act), applied on a consistent basis during the periods involved, (ii) complied in all material respects with published rules and regulations of the SEC with respect thereto, have been (or, if not yet filed, upon filing will be) prepared in accordance with generally accepted accounting principles ("GAAP") (except, in the case of unaudited statements, as permitted by the applicable rules and regulations of the SEC) applied on a consistent basis during the periods involved (~~iii~~except as may be indicated in the notes thereto) and fairly ~~present~~ presented (or, if not yet filed, upon filing will fairly present) in all material ~~respects~~ respects, in accordance with the applicable requirements of GAAP and the applicable rules and regulations of the SEC, the consolidated financial position of ~~Parent~~ Seller and its ~~consolidated Parent Subsidiaries~~ Subsidiaries, as of the ~~respective~~ dates thereof and the consolidated ~~statements~~ results of ~~income,~~ operations and cash flows ~~and changes in stockholders’ equity~~ for the ~~respective~~ periods then ended (subject, in the case of unaudited ~~quarterly~~ statements, to normal year-end audit ~~adjustments and the absence of footnotes~~adjustments). Seller has no Subsidiaries which are not consolidated for accounting purposes. (db) As of March 31, 2007, neither Parent nor any of the Parent Subsidiaries had any liabilities or obligations that would have been required by GAAP to be reflected in the consolidated balance sheet of Parent and the Parent Subsidiaries as of such date, except Except (i) for ~~such~~ liabilities ~~and~~ or obligations ~~reflected, reserved against or otherwise disclosed~~ incurred in the ~~consolidated balance sheet~~ ordinary course of ~~Parent and the Parent Subsidiaries as of such date (including the notes thereto) that is included in the Parent SEC Financial Statements and~~ business, (ii) for ~~such~~ liabilities ~~and~~ or obligations incurred in connection with the transactions contemplated by this Agreement, or (iii) as ~~would not be reasonably expected to have~~disclosed in the Seller SEC Documents filed after July 1, ~~individually~~ 1996 or in the ~~aggregate~~Seller Disclosure Letter, Seller and its Subsidiaries have no liabilities or obligations (whether absolute, accrued, contingent or otherwise) which would have a ~~Parent~~ Seller Material Adverse Effect ~~(it is understood~~ other than those resulting from any lawsuits or other claims filed with respect to the Merger and ~~agreed~~ the other transactions completed hereby. As used herein, "Seller SEC Documents" shall mean all reports, schedules, forms, statements and other documents required to be filed by the Seller with the SEC since July 1, 1996; provided that ~~the~~ with respect to all representations and warranties ~~contained in this Section 5.5(d): (x) do not apply to matters described in any~~ of Section 5.4, the other provisions of this Section 5.5, and Sections 5.7, 5.8, 5.9, 5.10, 5.11 and 5.17 (which are addressed exclusively in those Sections) and (y) shall not be deemed breached if such breach relates to a matter which is covered by a representation or warranty of Parent and Merger Sub Seller contained in this Article V 2 (~~other than this~~ except those contained in Section ~~5.5(d~~2.5(a)~~) that contains a “Parent’s Knowledge” qualification~~)~~. (e) Since December 31~~, ~~2006~~ references to Seller SEC Documents shall refer only to those filings made prior to the date of this Agreement, (i) neither Parent nor any Parent Subsidiary nor, to Parent’s Knowledge, any director, officer, auditor, accountant or representative of Parent or any of the Parent Subsidiaries has received any written complaint, allegation, assertion or claim that Parent or any of the Parent Subsidiaries has engaged in improper or illegal accounting or auditing practices or maintains improper or inadequate internal accounting controls relating to Parent and the Parent Subsidiaries, taken as a whole, (ii) no attorney representing Parent or any Parent Subsidiary has made a report to Parent’s chief legal officer, chief executive officer or Board of Directors (or any committee thereof) pursuant to the SEC’s Standards of Professional Conduct for Attorneys (17 CFR Part 205), and (iii) Parent has disclosed to its outside auditors any fraud, whether or not material, of which there is Parent’s Knowledge that involves management or other employees who have a significant role in Parent’s internal control over financial reportinghereof.

Appears in 3 contracts

Sources: Merger Agreement (Westbrook Real Estate Partners LLC), Merger Agreement (Alter Robert A), Merger Agreement (Sunstone Hotel Investors Inc)

SEC Documents; Financial Statements; Undisclosed Liabilities. ~~(a) Parent has~~ EOP and EOP Partnership have filed all required reports, schedules, ~~forms~~ forms, statements and ~~registration statements~~ other documents with the SEC ~~required~~ since July 8, 1997 and November 19, 1997, respectively, through the date hereof (the "EOP SEC Documents"). SCHEDULE 3.6(A) to be the EOP Disclosure Letter contains a complete list of all EOP SEC Documents filed by ~~it pursuant to~~ EOP and EOP Partnership with the ~~Securities Act and the Securities Act Rules, or~~ SEC under the Exchange Act and the Exchange Act Rules, in each such case since January 1, 2005 (collectively, and in each case including all annexes and schedules thereto and documents incorporated by reference therein, the “Parent SEC Documents”). As of their respective dates (on or ~~if subsequently amended or superseded by a filing~~ prior to the date of this Agreement~~, on~~ . All of the ~~date of such filing~~EOP SEC Documents (other than preliminary material), ~~the Parent SEC Documents~~ as of their respective filing dates, complied ~~as to form~~ in all material respects with ~~the~~ all applicable requirements of the Securities Act or and the Exchange ~~Act~~Act and, ~~as the case may be~~in each case, ~~and~~ the rules and regulations ~~of the SEC~~ promulgated thereunder applicable to such ~~Parent~~ EOP SEC Documents~~, and none~~ . None of the ~~Parent~~ EOP SEC Documents as at the time of ~~such dates~~ filing contained any untrue statement of a material fact or omitted to state a any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading~~. To Parent’s Knowledge~~, ~~as of~~ except to the extent such statements have been modified or superseded by later EOP SEC Documents filed and publicly available prior to the date ~~hereof, none~~ of this Agreement. The consolidated financial statements of EOP and the ~~Parent~~ EOP Subsidiaries included in the EOP SEC Documents ~~is the subject of ongoing SEC review. (b) Parent is in compliance with, and has complied,~~ complied as to form in all material respects with ~~(i) the~~ applicable ~~provisions of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002~~ accounting requirements and the related rules and regulations promulgated thereunder, and (ii) the applicable listing and corporate governance rules and regulations of NASDAQ. Parent has established and maintains disclosure controls and procedures and internal control over financial reporting (as such terms are defined in paragraphs (e) and (f), respectively, of Rule 13a-15 under the Exchange Act) as required by Rule 13a-15 under the Exchange Act. Parent’s disclosure controls and procedures are reasonably designed to ensure that all material information required to be disclosed by Parent in the reports that it files or furnishes under the Exchange Act is recorded, processed, summarized and reported within the time periods specified in the rules and forms of the SEC, and that all such material information is accumulated and communicated to the management of Parent as appropriate to allow timely decisions regarding required disclosure and to make the certifications required pursuant to Sections 302 and 906 of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act. The management of Parent has completed its assessment of the effectiveness of Parent’s internal control over financial reporting in compliance with the requirements of Section 404 of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act for the year ended December 31, 2006, and such assessment concluded that such controls were effective to provide reasonable assurance regarding the reliability of Parent’s financial reporting and the preparation of Parent’s financial statements for external purposes in accordance with GAAP. Parent has disclosed, based on its assessment of the effectiveness of Parent’s internal control over financial reporting in compliance with the requirements of Section 404 of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act for the year ended December 31, 2006, to Parent’s independent registered accounting firm and the audit committee of the Board of Directors of Parent (A) any significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect Parent’s ability to record, process, summarize and report financial information and (B) any fraud, whether or not material, of which there is Parent’s Knowledge that involves management or other employees who have a significant role in Parent’s internal control over financial reporting for the year ended December 31, 2006. Parent any has made available to the Company a summary of any such disclosures made by management to such accounting firm or audit committee for the year ended December 31, 2006. (c) The consolidated financial statements of Parent included in the Parent SEC Documents (the “Parent SEC Financial Statements”) (i) have been prepared in accordance with GAAP (except as may be otherwise indicated therein or in the notes thereto and except, in the case of unaudited consolidated quarterly statements, as permitted by Form 10-Q of the Exchange Act), applied on a consistent basis during the periods involved, (ii) complied in all material respects with published rules and regulations of the SEC with respect thereto, have been prepared in accordance with GAAP (except, in the case of unaudited statements, as permitted by the applicable rules and regulations of the SEC) applied on a consistent basis during the periods involved (~~iii~~except as may be indicated in the notes thereto) and fairly ~~present~~ presented in all material ~~respects~~ respects, in accordance with the applicable requirements of GAAP and the applicable rules and regulations of the SEC, the consolidated financial position of ~~Parent~~ EOP and ~~its consolidated Parent Subsidiaries~~ the EOP Subsidiaries, taken as a whole, as of the ~~respective~~ dates thereof and the consolidated ~~statements~~ results of ~~income,~~ operations and cash flows ~~and changes in stockholders’ equity~~ for the ~~respective~~ periods then ended (subject, in the case of unaudited ~~quarterly~~ statements, to normal year-end audit ~~adjustments~~ adjustments). Except for liabilities and obligations set forth in the ~~absence of footnotes). (d~~EOP SEC Documents or in SCHEDULE 3.6(B) ~~As of March 31, 2007~~to the EOP Disclosure Letter, neither ~~Parent~~ EOP nor any ~~of the Parent Subsidiaries had~~ EOP Subsidiary has any liabilities or obligations ~~that would have been~~ of any nature (whether accrued, absolute, contingent or otherwise) required by GAAP to be ~~reflected in the~~ set forth on a consolidated balance sheet of ~~Parent and the Parent Subsidiaries as of such date, except (i) for such liabilities and obligations reflected, reserved against~~ EOP or ~~otherwise disclosed~~ in the ~~consolidated balance sheet of Parent~~ notes thereto and the Parent Subsidiaries as of such date (including the notes thereto) that is included in the Parent SEC Financial Statements and (ii) for such liabilities and obligations as would not be reasonably expected to havewhich, individually or in the aggregate, ~~a Parent~~ would reasonably be expected to have an EOP Material Adverse Effect (it is understood and agreed that the representations and warranties contained in this Section 5.5(d): (x) do not apply to matters described in any of Section 5.4, the other provisions of this Section 5.5, and Sections 5.7, 5.8, 5.9, 5.10, 5.11 and 5.17 (which are addressed exclusively in those Sections) and (y) shall not be deemed breached if such breach relates to a matter which is covered by a representation or warranty of Parent and Merger Sub contained in this Article V (other than this Section 5.5(d)) that contains a “Parent’s Knowledge” qualification)Effect. (e) Since December 31, 2006 to the date of this Agreement, (i) neither Parent nor any Parent Subsidiary nor, to Parent’s Knowledge, any director, officer, auditor, accountant or representative of Parent or any of the Parent Subsidiaries has received any written complaint, allegation, assertion or claim that Parent or any of the Parent Subsidiaries has engaged in improper or illegal accounting or auditing practices or maintains improper or inadequate internal accounting controls relating to Parent and the Parent Subsidiaries, taken as a whole, (ii) no attorney representing Parent or any Parent Subsidiary has made a report to Parent’s chief legal officer, chief executive officer or Board of Directors (or any committee thereof) pursuant to the SEC’s Standards of Professional Conduct for Attorneys (17 CFR Part 205), and (iii) Parent has disclosed to its outside auditors any fraud, whether or not material, of which there is Parent’s Knowledge that involves management or other employees who have a significant role in Parent’s internal control over financial reporting.

Appears in 3 contracts

Sources: Merger Agreement (Eop Operating LTD Partnership), Merger Agreement (Cornerstone Properties Inc), Merger Agreement (Equity Office Properties Trust)

SEC Documents; Financial Statements; Undisclosed Liabilities. (ai) ~~Parent~~ Raytheon has filed or furnished all required registration statements, prospectuses, reports, schedules, ~~forms~~ forms, statements, certifications and ~~registration statements~~ other documents (including exhibits and all other information incorporated therein, regardless of when such exhibits and other information were filed) with the SEC ~~required to be filed by it pursuant to the Securities Act and the Securities Act Rules, or the Exchange Act and the Exchange Act Rules, in each such case~~ since January 1, ~~2005~~ 2017 (~~collectively, and in each case including all annexes and schedules thereto and documents incorporated by reference therein,~~ the “~~Parent~~ Raytheon SEC Documents”). As of their respective ~~dates (or if subsequently amended or superseded by a filing prior to the date of this Agreement, on the date of such filing)~~dates, the ~~Parent~~ Raytheon SEC Documents complied ~~as to form~~ in all material respects with the requirements of the Securities Act or of 1933, as amended (the “Securities Act”), the Exchange Act and the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002, as amended (the “▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act”), as the case may be, and the rules and regulations of the SEC promulgated thereunder applicable to ~~such Parent~~ the Raytheon SEC Documents, and none of the ~~Parent~~ Raytheon SEC Documents ~~as of such dates~~ when filed and at their respective effective times, if applicable, contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading. ~~To Parent’s Knowledge, as~~ As of the date ~~hereof~~of this Agreement, there are no outstanding or unresolved comments received from the SEC with respect to any of the Raytheon SEC Documents, and, to the knowledge of Raytheon, none of the ~~Parent~~ Raytheon SEC Documents is the subject of ~~ongoing~~ any outstanding SEC ~~review~~comment or investigation. No subsidiary of Raytheon is required to file reports with the SEC pursuant to the requirements of the Exchange Act. (bii) ~~Parent is~~ The consolidated financial statements (including all related notes and schedules) of Raytheon and its subsidiaries included in ~~compliance with, and has complied,~~ the Raytheon SEC Documents (the “Raytheon Financial Statements”) were prepared in all material respects in accordance with United States generally accepted accounting principles (i“GAAP”) (except, in the ~~applicable provisions~~ case of unaudited statements, as permitted by the SEC) applied on a consistent basis during the periods involved (except as may be indicated in the notes thereto) and fairly present in all material respects the consolidated financial position of Raytheon and its consolidated subsidiaries as of the ~~▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002~~ dates thereof and the ~~related rules~~ consolidated results of their operations and ~~regulations promulgated thereunder~~cash flows for the periods then ended (subject, in the case of unaudited statements, to normal year-end audit adjustments which are not material and to any other adjustments described therein, including the notes thereto). (iii) Except (A) as reflected or reserved against in Raytheon’s audited balance sheet as of December 31, 2018 (or the notes thereto) included in Raytheon’s Annual Report on Form 10-K filed with the SEC on February 13, 2019, (B) for liabilities and obligations incurred in the ordinary course of business consistent with past practice since December 31, 2018 and (iiC) for liabilities and obligations incurred in connection with or contemplated by this Agreement, neither Raytheon nor any of its subsidiaries has any liabilities or obligations of any nature (whether accrued, absolute, contingent or otherwise) that would be required by GAAP to be reflected on a consolidated balance sheet of Raytheon and its subsidiaries (or in the ~~applicable listing and corporate governance rules and regulations~~ notes thereto) that, individually or in the aggregate, would reasonably be expected to have a Material Adverse Effect on Raytheon. (iv) Raytheon maintains a system of ~~NASDAQ. Parent has established and maintains disclosure controls and procedures and~~ “internal control over financial ~~reporting~~ reporting” (as ~~such terms are~~ defined in ~~paragraphs (e~~Rules 13a-15(f) and ~~(f), respectively,~~ 15d-15(f) of ~~Rule 13a-15 under~~ the Exchange Act) sufficient to provide reasonable assurance (A) that transactions are recorded as ~~required by Rule 13a-15 under~~ necessary to permit preparation of financial statements in conformity with GAAP, consistently applied, (B) that transactions are executed only in accordance with the authorization of management and (C) regarding prevention or timely detection of the unauthorized acquisition, use or disposition of Raytheon’s properties or assets. Since January 1, 2017, none of Raytheon, Raytheon’s independent accountants, the Board of Directors of Raytheon or its audit committee has received any oral or written notification of any (1) “significant deficiency” in the internal controls over financial reporting of Raytheon, (2) “material weakness” in the internal controls over financial reporting of Raytheon or (3) fraud, whether or not material, that involves management or other employees of Raytheon who have a significant role in the internal controls over financial reporting of Raytheon. (v) The “disclosure controls and procedures” (as defined in Rules 13a-15(e) and 15d-15(e) of the Exchange Act~~. Parent’s disclosure controls and procedures~~ ) utilized by Raytheon are reasonably designed to ensure that all ~~material~~ information (both financial and non-financial) required to be disclosed by ~~Parent~~ Raytheon in the reports that it files or ~~furnishes~~ submits under the Exchange Act is recorded, processed, summarized and reported within the time periods specified in the rules and forms of the ~~SEC,~~ SEC and that all such ~~material~~ information required to be disclosed is accumulated and communicated to the management of ~~Parent~~ Raytheon, as ~~appropriate~~ appropriate, to allow timely decisions regarding required disclosure and to enable the chief executive officer and chief financial officer of Raytheon to make the certifications required ~~pursuant to Sections 302 and 906 of~~ under the ~~▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act. The management of Parent has completed its assessment of the effectiveness of Parent’s internal control over financial reporting in compliance~~ Exchange Act with the requirements of Section 404 of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act for the year ended December 31, 2006, and such assessment concluded that such controls were effective to provide reasonable assurance regarding the reliability of Parent’s financial reporting and the preparation of Parent’s financial statements for external purposes in accordance with GAAP. Parent has disclosed, based on its assessment of the effectiveness of Parent’s internal control over financial reporting in compliance with the requirements of Section 404 of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act for the year ended December 31, 2006, to Parent’s independent registered accounting firm and the audit committee of the Board of Directors of Parent (A) any significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect Parent’s ability to record, process, summarize and report financial information and (B) any fraud, whether or not material, of which there is Parent’s Knowledge that involves management or other employees who have a significant role in Parent’s internal control over financial reporting for the year ended December 31, 2006. Parent any has made available to the Company a summary of any such disclosures made by management respect to such ~~accounting firm or audit committee for the year ended December 31, 2006~~reports. (cvi) ~~The consolidated financial statements~~ Neither Raytheon nor any of ~~Parent included~~ its subsidiaries is a party to, or has any commitment to become a party to, any joint venture, off-balance sheet partnership or any similar contract (including any contract or arrangement relating to any transaction or relationship between or among Raytheon and any of its subsidiaries, on the one hand, and any unconsolidated affiliate, including any structured finance, special purpose or limited purpose entity or person, on the other hand, or any “off-balance sheet arrangements” (as defined in ~~the Parent SEC Documents (the “Parent SEC Financial Statements”~~Item 303(a) ~~(i) have been prepared in accordance with GAAP (except as may be otherwise indicated therein or in the notes thereto and except, in the case~~ of ~~unaudited consolidated quarterly statements, as permitted by Form 10~~Regulation S-~~Q of~~ K under the Exchange Act)), ~~applied on a consistent basis during~~ where the periods involved, (ii) complied in all material respects with published rules and regulations of the SEC with respect thereto, and (iii) fairly present in all material respects the consolidated financial position of Parent and its consolidated Parent Subsidiaries as of the respective dates thereof and the consolidated statements of income, cash flows and changes in stockholders’ equity for the respective periods then ended (subject, in the case of unaudited quarterly statements, to normal year-end audit adjustments and the absence of footnotes). (d) As of March 31, 2007, neither Parent nor any of the Parent Subsidiaries had any liabilities purpose or ~~obligations that would have been required by GAAP to be reflected in the consolidated balance sheet of Parent and the Parent Subsidiaries as~~ intended effect of such ~~date~~contract is to avoid disclosure of any material transaction involving, ~~except (i) for such~~ or material liabilities ~~and obligations reflected~~of, reserved against or otherwise disclosed in the consolidated balance sheet of Parent and the Parent Subsidiaries as of such date (including the notes thereto) that is included in the Parent SEC Financial Statements and (ii) for such liabilities and obligations as would not be reasonably expected to have, individually or in the aggregate, a Parent Material Adverse Effect (it is understood and agreed that the representations and warranties contained in this Section 5.5(d): (x) do not apply to matters described in any of Section 5.4, the other provisions of this Section 5.5, and Sections 5.7, 5.8, 5.9, 5.10, 5.11 and 5.17 (which are addressed exclusively in those Sections) and (y) shall not be deemed breached if such breach relates to a matter which is covered by a representation or warranty of Parent and Merger Sub contained in this Article V (other than this Section 5.5(d)) that contains a “Parent’s Knowledge” qualification). (e) Since December 31, 2006 to the date of this Agreement, (i) neither Parent nor any Parent Subsidiary nor, to Parent’s Knowledge, any director, officer, auditor, accountant or representative of Parent Raytheon or any of ~~the Parent Subsidiaries has received any written complaint, allegation, assertion~~ its subsidiaries in Raytheon’s or claim that Parent or any of the Parent Subsidiaries has engaged in improper or illegal accounting or auditing practices or maintains improper or inadequate internal accounting controls relating to Parent and the Parent Subsidiaries, taken as a whole, (ii) no attorney representing Parent or any Parent Subsidiary has made a report to Parentsuch subsidiary’s chief legal officer, chief executive officer or Board of Directors (or any committee thereof) pursuant to the SEC’s Standards of Professional Conduct for Attorneys (17 CFR Part 205), and (iii) Parent has disclosed to its outside auditors any fraud, whether or not material, of which there is Parent’s Knowledge that involves management published financial statements or other ~~employees who have a significant role in Parent’s internal control over financial reporting~~Raytheon SEC Documents.

Appears in 2 contracts

Sources: Merger Agreement (Raytheon Co/), Merger Agreement (United Technologies Corp /De/)

SEC Documents; Financial Statements; Undisclosed Liabilities. (ai) ~~Parent has~~ Janus and its subsidiaries have filed or furnished all required material registration statements, prospectuses, reports, schedules, ~~forms~~ forms, statements, certifications and ~~registration statements~~ other documents (including exhibits and all other information incorporated therein) with the SEC ~~required to be filed by it pursuant to the Securities Act and the Securities Act Rules, or the Exchange Act and the Exchange Act Rules, in each such case~~ since January 1, ~~2005~~ 2015 (~~collectively, and in each case including all annexes and schedules thereto and documents incorporated by reference therein,~~ the ~~“Parent~~ Janus SEC Documents”). As of their respective ~~dates (or if subsequently amended or superseded by a filing prior to the date of this Agreement, on the date of such filing)~~dates, the ~~Parent~~ Janus SEC Documents complied ~~as to form~~ in all material respects with the requirements of the Securities Act or of 1933, as amended (the Securities Act), the Exchange Act and the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002, as amended (the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act), as the case may be, and the rules and regulations of the SEC promulgated thereunder applicable to ~~such Parent~~ the Janus SEC Documents, and none of the ~~Parent~~ Janus SEC Documents ~~as of such dates~~ when filed and at their respective effective times, if applicable, contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading. ~~To Parent’s Knowledge, as~~ As of the date ~~hereof~~of this Agreement, ~~none~~ there are no outstanding or unresolved comments received from the SEC with respect to any Janus SEC Document, and, to the knowledge of ~~the Parent~~ Janus, no Janus SEC ~~Documents~~ Document is the subject of ~~ongoing~~ any outstanding SEC ~~review~~comment or outstanding SEC investigation. (bii) ~~Parent is~~ The consolidated financial statements (including all related notes and schedules) of Janus and its subsidiaries included in ~~compliance with~~the Janus SEC Documents (the Janus Financial Statements) were prepared in all material respects in accordance with generally accepted accounting principles (GAAP) (except, in the case of unaudited statements, as permitted by the SEC) applied on a consistent basis during the periods involved (except as may be indicated in the notes thereto) and fairly present in all material respects the consolidated financial position of Janus and its consolidated subsidiaries as of the dates thereof and the consolidated results of their operations and cash flows for the periods then ended (subject, in the case of unaudited statements, to normal year-end audit adjustments which are not material and to any other adjustments described therein, including the notes thereto). (iii) Except (A) as reflected or reserved against in Janus’s unaudited balance sheet as of June 30, 2016 (or the notes thereto) as included in the Janus Filed SEC Documents, (B) for liabilities and obligations incurred in the ordinary course of business consistent with past practice since June 30, 2016 and (C) for liabilities and obligations incurred in connection with or contemplated by this Agreement and the Ancillary Agreements, neither Janus nor any of its subsidiaries has ~~complied~~any material liabilities or material obligations of any nature (whether accrued, absolute, contingent or otherwise) that would be required by GAAP to be reflected on a consolidated balance sheet of Janus and its subsidiaries (or in the notes thereto). (iv) Janus maintains a system of “internal control over financial reporting” (as defined in Rules 13a-15(f) and 15d-15(f) of the Exchange Act) sufficient to, in all material ~~respects with~~ respects, provide reasonable assurance (i) ~~the applicable provisions~~ that transactions are recorded as necessary to permit preparation of ~~the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002 and the related rules and regulations promulgated thereunder~~financial statements in conformity with GAAP, ~~and~~ consistently applied, (ii) that transactions are executed only in accordance with the ~~applicable listing~~ authorization of management and ~~corporate governance rules and regulations~~ (iii) regarding prevention or timely detection of ~~NASDAQ~~the unauthorized acquisition, use or disposition of Janus’s properties or assets. ~~Parent~~ Since January 1, 2015, none of Janus or, to the knowledge of Janus, Janus’s independent accountants, the Board of Directors of Janus or its audit committee has ~~established and maintains~~ received any oral or written notification of any (i) “significant deficiency” in the internal controls over financial reporting of Janus, (ii) “material weakness” in the internal controls over financial reporting of Janus or (iii) fraud, whether or not material, that involves management or other employees of Janus who have a significant role in the internal controls over financial reporting of Janus. (v) The “disclosure controls and ~~procedures and internal control over financial reporting~~ procedures” (as ~~such terms are~~ defined in ~~paragraphs (e~~Rules 13a-15(e) and ~~(f), respectively,~~ 15d-15(e) of ~~Rule 13a-15 under~~ the Exchange Act) ~~as required~~ utilized by ~~Rule 13a-15 under the Exchange Act. Parent’s disclosure controls and procedures~~ Janus are reasonably designed to to, in all material respects, ensure that all ~~material~~ information (both financial and non-financial) required to be disclosed by ~~Parent~~ Janus in the reports that it files or ~~furnishes~~ submits under the Exchange Act is recorded, processed, summarized and reported within the time periods specified in the rules and forms of the ~~SEC,~~ SEC and that all such ~~material~~ information required to be disclosed is accumulated and communicated to the management of ~~Parent~~ Janus, as ~~appropriate~~ appropriate, to allow timely decisions regarding required disclosure and to enable the chief executive officer and chief financial officer of Janus to make the certifications required ~~pursuant to Sections 302 and 906 of~~ under the ~~▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act. The management of Parent has completed its assessment of the effectiveness of Parent’s internal control over financial reporting in compliance~~ Exchange Act with the requirements of Section 404 of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act for the year ended December 31, 2006, and such assessment concluded that such controls were effective to provide reasonable assurance regarding the reliability of Parent’s financial reporting and the preparation of Parent’s financial statements for external purposes in accordance with GAAP. Parent has disclosed, based on its assessment of the effectiveness of Parent’s internal control over financial reporting in compliance with the requirements of Section 404 of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act for the year ended December 31, 2006, to Parent’s independent registered accounting firm and the audit committee of the Board of Directors of Parent (A) any significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect Parent’s ability to record, process, summarize and report financial information and (B) any fraud, whether or not material, of which there is Parent’s Knowledge that involves management or other employees who have a significant role in Parent’s internal control over financial reporting for the year ended December 31, 2006. Parent any has made available to the Company a summary of any such disclosures made by management respect to such ~~accounting firm or audit committee for the year ended December 31, 2006~~reports. (cvi) ~~The consolidated financial statements~~ Neither Janus nor any of ~~Parent included~~ its subsidiaries is a party to, or has any commitment to become a party to, any joint venture, off-balance sheet partnership or any similar Contract (including any Contract or arrangement relating to any transaction or relationship between or among Janus and any of its subsidiaries, on the one hand, and any unconsolidated Affiliate, including any structured finance, special purpose or limited purpose entity or person, on the other hand, or any “off-balance sheet arrangements” (as defined in ~~the Parent SEC Documents (the “Parent SEC Financial Statements”~~Item 303(a) ~~(i) have been prepared in accordance with GAAP (except as may be otherwise indicated therein or in the notes thereto and except, in the case~~ of ~~unaudited consolidated quarterly statements, as permitted by Form 10~~Regulation S-~~Q of~~ K under the Exchange Act)), ~~applied on a consistent basis during~~ where the ~~periods involved~~result, (ii) complied in all material respects with published rules and regulations of the SEC with respect thereto, and (iii) fairly present in all material respects the consolidated financial position of Parent and its consolidated Parent Subsidiaries as of the respective dates thereof and the consolidated statements of income, cash flows and changes in stockholders’ equity for the respective periods then ended (subject, in the case of unaudited quarterly statements, to normal year-end audit adjustments and the absence of footnotes). (d) As of March 31, 2007, neither Parent nor any of the Parent Subsidiaries had any liabilities purpose or ~~obligations that would have been required by GAAP to be reflected in the consolidated balance sheet of Parent and the Parent Subsidiaries as~~ intended effect of such ~~date~~Contract is to avoid disclosure of any material transaction involving, ~~except (i) for such~~ or material liabilities ~~and obligations reflected~~of, reserved against or otherwise disclosed in the consolidated balance sheet of Parent and the Parent Subsidiaries as of such date (including the notes thereto) that is included in the Parent SEC Financial Statements and (ii) for such liabilities and obligations as would not be reasonably expected to have, individually or in the aggregate, a Parent Material Adverse Effect (it is understood and agreed that the representations and warranties contained in this Section 5.5(d): (x) do not apply to matters described in any of Section 5.4, the other provisions of this Section 5.5, and Sections 5.7, 5.8, 5.9, 5.10, 5.11 and 5.17 (which are addressed exclusively in those Sections) and (y) shall not be deemed breached if such breach relates to a matter which is covered by a representation or warranty of Parent and Merger Sub contained in this Article V (other than this Section 5.5(d)) that contains a “Parent’s Knowledge” qualification). (e) Since December 31, 2006 to the date of this Agreement, (i) neither Parent nor any Parent Subsidiary nor, to Parent’s Knowledge, any director, officer, auditor, accountant or representative of Parent Janus or any of ~~the Parent Subsidiaries has received any written complaint, allegation, assertion~~ its subsidiaries in Janus’s or claim that Parent or any of the Parent Subsidiaries has engaged in improper or illegal accounting or auditing practices or maintains improper or inadequate internal accounting controls relating to Parent and the Parent Subsidiaries, taken as a whole, (ii) no attorney representing Parent or any Parent Subsidiary has made a report to Parentsuch subsidiary’s chief legal officer, chief executive officer or Board of Directors (or any committee thereof) pursuant to the SEC’s Standards of Professional Conduct for Attorneys (17 CFR Part 205), and (iii) Parent has disclosed to its outside auditors any fraud, whether or not material, of which there is Parent’s Knowledge that involves management published financial statements or other ~~employees who have a significant role in Parent’s internal control over financial reporting~~Janus SEC Documents.

Appears in 2 contracts

Sources: Agreement and Plan of Merger (Janus Henderson Group PLC), Agreement and Plan of Merger (Janus Capital Group Inc)

SEC Documents; Financial Statements; Undisclosed Liabilities. (a) ~~Parent~~ The Company has filed or furnished, as the case may be, all ~~reports~~forms, ~~schedules, forms~~ reports and ~~registration statements with the SEC~~ documents required to be filed with or furnished to the SEC by it the Company since January 1, 2018 pursuant to the Securities Act and the ~~Securities Act Rules, or the~~ Exchange Act (the forms, reports and ~~the Exchange Act Rules, in each such case~~ other documents filed or furnished since January 1, ~~2005 (~~2018 and those filed or furnished subsequent to the date hereof as have been supplemented, modified or amended since the time of filing or furnishing, collectively~~, and in each case including all annexes and schedules thereto and documents incorporated by reference therein~~, the “~~Parent~~ Company SEC Documents”). As of ~~their respective dates (or if subsequently amended or superseded by a filing prior to~~ the date of ~~this Agreement~~filing, on in the case of Company SEC Documents filed pursuant to the Exchange Act (and to the extent such Company SEC Documents were amended, then as of the date of filing of such ~~filing~~amendment), and as of the date of effectiveness in the case of Company SEC Documents filed pursuant to the Securities Act (and to the extent such Company SEC Documents were amended, then as of the date of effectiveness of such amendment), the ~~Parent~~ Company SEC Documents (i) complied as to form in all material respects with either the requirements of the Securities Act, the Exchange Act or the ~~Exchange Act~~▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002, as the case may be, and the rules and regulations of promulgated thereunder, each as in effect on the ~~SEC promulgated thereunder applicable to such Parent SEC Documents,~~ date so filed or effective and ~~none of the Parent SEC Documents as of such dates contained~~ (ii) did not contain any untrue statement of a material fact or ~~omitted~~ omit to state a material fact required to be stated or incorporated by reference therein or necessary in order to make the statements made therein, in light of the circumstances under which they were made, not ~~misleading. To Parent’s Knowledge,~~ misleading as of ~~the~~ its filing date ~~hereof, none of the Parent SEC Documents is the subject of ongoing SEC review~~or effective date (as applicable). (b) ~~Parent is~~ Each of the consolidated financial statements (including, in ~~compliance with~~each case, any notes thereto) contained in or incorporated by reference into the Company SEC Documents was prepared in accordance with GAAP (except, in the case of the unaudited statements, as permitted by the SEC) applied on a consistent basis throughout the periods indicated (except as may be indicated in the notes thereto) and ~~has complied~~each accurately and fairly presents, in all material ~~respects~~ respects, the consolidated financial position of the Group Companies as at the respective dates thereof and the consolidated results of their operations and cash flows for the respective periods indicated therein (subject, in the case of unaudited statements, to normal year-end adjustments and to any other adjustments described therein, the effect of which, individually or in the aggregate, is not material, and to the exclusion of certain notes in accordance with the rules of the SEC relating to unaudited financial statements), in each case in accordance with GAAP except to the extent that such information has been amended or superseded by later Company SEC Documents filed prior to the date hereof. (c) Except as and to the extent set forth in the audited annual financial results of the Group Companies as of December 31, 2019, including the notes thereto, no Group Company has outstanding (i) any Indebtedness or any commitments therefor or (ii) any other liability or obligation of any nature (whether accrued, absolute, contingent or otherwise) that are required in accordance with GAAP to be disclosed or reflected or reserved against in the ~~applicable provisions~~ consolidated financial statements of the Group Companies, except for Indebtedness or any commitments therefor or other liabilities or obligations (A) reflected or reserved against on the consolidated balance sheet of the Company as of December 31, 2019, (B) incurred in the ordinary course of business consistent with past practice since December 31, 2019, or (C) incurred pursuant to this Agreement or in connection with the Transactions, or (D) that do not have a Company Material Adverse Effect. Since December 31, 2019, there has not been a Company Material Adverse Effect. (d) The Company has timely filed all certifications and statements required by (i) Rule 13a-14 or Rule 15d-14 under the Exchange Act or (ii) 18 U.S.C. Section 1350 (Section 906 of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of ~~2002 and the related rules and regulations promulgated thereunder, and (ii~~2002) ~~the applicable listing and corporate governance rules and regulations of NASDAQ~~with respect to any Company SEC Document. ~~Parent has established and maintains~~ The “disclosure controls and ~~procedures and internal control over financial reporting~~ procedures” (as ~~such terms are~~ defined in ~~paragraphs (e~~Rules 13a-15(e) and ~~(f), respectively, of Rule 13a-15~~ 15d-15(e) under the Exchange Act) ~~as required~~ established and maintained by ~~Rule 13a-15 under~~ the ~~Exchange Act. Parent’s disclosure controls and procedures~~ Company are reasonably designed to ensure that all material information concerning the Group Companies required to be disclosed by ~~Parent~~ the Company in the reports ~~that~~ it files ~~or furnishes~~ under the Exchange Act is recorded, processed, summarized and ~~reported~~ reported, within the time periods specified in the SEC’s rules and ~~forms of the SEC~~related forms, and that ~~all~~ such ~~material~~ information is accumulated and communicated to the ~~management of Parent~~ Company’s chief executive officer and chief financial officer (or persons performing similar functions), as ~~appropriate~~ appropriate, to allow timely decisions regarding required ~~disclosure and to make~~ disclosure. Since January 1, 2018, neither the certifications required pursuant to Sections 302 and 906 of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act. The management of Parent has completed its assessment of the effectiveness of Parent’s internal control over financial reporting in compliance with the requirements of Section 404 of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act for the year ended December 31, 2006, and such assessment concluded that such controls were effective to provide reasonable assurance regarding the reliability of Parent’s financial reporting and the preparation of Parent’s financial statements for external purposes in accordance with GAAP. Parent has disclosed, based on its assessment of the effectiveness of Parent’s internal control over financial reporting in compliance with the requirements of Section 404 of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act for the year ended December 31, 2006Company nor, to ~~Parent~~the Company’s knowledge, its independent registered public accounting firm ~~and~~ has identified or been made aware of any “significant deficiencies” or “material weaknesses” (as defined by the ~~audit committee of the Board of Directors of Parent (A~~Public Company Accounting Oversight Board) ~~any significant deficiencies and material weaknesses~~ in the design or operation of the internal ~~control over financial reporting which~~ controls and procedures of the Company that are reasonably likely to adversely affect ~~Parent’s~~ the ability of the Company to record, process, summarize and report financial ~~information and (B) any fraud~~data, ~~whether or~~ in each case, which has not ~~material~~been subsequently remediated. Since the date of the Company’s most recently filed annual report under the Exchange Act, ~~of which~~ there ~~is Parent’s Knowledge that involves management or other employees who~~ have ~~a significant role~~ been no changes in ~~Parent~~the Company’s internal control over financial reporting ~~for the year ended December 31, 2006. Parent any has made available to the Company a summary of any~~ (as such ~~disclosures made by management to such accounting firm or audit committee for the year ended December 31, 2006. (c) The consolidated financial statements of Parent included~~ term is defined in the Parent SEC Documents (the “Parent SEC Financial Statements”) (i) have been prepared in accordance with GAAP (except as may be otherwise indicated therein or in the notes thereto and except, in the case of unaudited consolidated quarterly statements, as permitted by Form 10-Q of the Exchange Act), applied on a consistent basis during the periods involved, (ii) complied in all material respects with published rules and regulations of the SEC with respect thereto, and (iii) fairly present in all material respects the consolidated financial position of Parent and its consolidated Parent Subsidiaries as of the respective dates thereof and the consolidated statements of income, cash flows and changes in stockholders’ equity for the respective periods then ended (subject, in the case of unaudited quarterly statements, to normal year-end audit adjustments and the absence of footnotes). (d) As of March 31, 2007, neither Parent nor any of the Parent Subsidiaries had any liabilities or obligations that would have been required by GAAP to be reflected in the consolidated balance sheet of Parent and the Parent Subsidiaries as of such date, except (i) for such liabilities and obligations reflected, reserved against or otherwise disclosed in the consolidated balance sheet of Parent and the Parent Subsidiaries as of such date (including the notes thereto) that ~~is included in the Parent SEC Financial Statements and (ii) for such liabilities and obligations as would not be~~ have materially affected or are reasonably ~~expected~~ likely to have, individually or in the aggregate, a Parent Material Adverse Effect (it is understood and agreed that the representations and warranties contained in this Section 5.5(d): (x) do not apply to matters described in any of Section 5.4materially affect, the other provisions of this Section 5.5, and Sections 5.7, 5.8, 5.9, 5.10, 5.11 and 5.17 (which are addressed exclusively in those Sections) and (y) shall not be deemed breached if such breach relates to a matter which is covered by a representation or warranty of Parent and Merger Sub contained in this Article V (other than this Section 5.5(d)) that contains a “Parent’s Knowledge” qualification). (e) Since December 31, 2006 to the date of this Agreement, (i) neither Parent nor any Parent Subsidiary nor, to Parent’s Knowledge, any director, officer, auditor, accountant or representative of Parent or any of the Parent Subsidiaries has received any written complaint, allegation, assertion or claim that Parent or any of the Parent Subsidiaries has engaged in improper or illegal accounting or auditing practices or maintains improper or inadequate internal accounting controls relating to Parent and the Parent Subsidiaries, taken as a whole, (ii) no attorney representing Parent or any Parent Subsidiary has made a report to Parent’s chief legal officer, chief executive officer or Board of Directors (or any committee thereof) pursuant to the SEC’s Standards of Professional Conduct for Attorneys (17 CFR Part 205), and (iii) Parent has disclosed to its outside auditors any fraud, whether or not material, of which there is Parent’s Knowledge that involves management or other employees who have a significant role in ParentCompany’s internal control over financial reporting. As used in this Section 3.7, the term “file” shall be broadly construed to include any manner in which a document or information is furnished, supplied or otherwise made available to the SEC. (e) The Group Companies maintain a system of “internal control over financial reporting” (as defined in Rules 13a-15(f) and 15d-15(f) under the Exchange Act) sufficient to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements in accordance with GAAP. (f) The Company is in compliance, in all material respects, with the applicable listing and corporate governance rules and regulations of the NYSE, subject to any “home country” exemption from such rules and regulations available to a “foreign private issuer” (as defined under the Exchange Act and under the relevant rules and regulations of the NYSE).

Appears in 2 contracts

Sources: Securities Purchase Agreement (Kaisa Group Holdings Ltd.), Securities Purchase Agreement (Nam Tai Property Inc.)

SEC Documents; Financial Statements; Undisclosed Liabilities. (a) ~~Parent~~ The Company has filed all material reports, schedules, ~~forms~~ forms, statements and ~~registration statements~~ other documents with the SEC required to be filed by it the Company pursuant to the Securities Act of 1933 (together with the rules and regulations promulgated thereunder, the “Securities ~~Act Rules,~~ Act”) or the Exchange Act ~~and the Exchange Act Rules, in each such case~~ since January 1, ~~2005~~ 2018 (~~collectively, and in each case including all annexes and schedules thereto and documents incorporated by reference therein,~~ the “~~Parent~~ SEC Documents”). As of their respective effective dates (~~or if subsequently amended or superseded by a filing prior~~ in the case of SEC Documents that are registration statements filed pursuant to the ~~date~~ requirements of ~~this Agreement, on~~ the ~~date~~ Securities Act) and as of ~~such filing~~their respective dates of filing (in the case of all other SEC Documents), the ~~Parent~~ SEC Documents complied as to form in all material respects with the requirements of the Securities Act or the Exchange Act, as the case may be, and the rules and regulations of the SEC promulgated thereunder applicable ~~to such Parent SEC Documents~~thereto, and except to the extent amended or superseded by a subsequent filing with the SEC prior to the date of this Agreement, as of such respective dates, none of the ~~Parent~~ SEC Documents ~~as of such dates~~ contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading. None of the Company’s Subsidiaries is subject to the periodic reporting requirements of the Exchange Act. As of the date of this Agreement, there are no outstanding or unresolved comments in comment letters from the SEC staff with respect to any of the SEC Documents. To ~~Parent’s Knowledge~~the Knowledge of the Company, as of the date ~~hereof~~of this Agreement, none of the ~~Parent~~ SEC Documents is the subject of ongoing SEC ~~review~~review or outstanding SEC investigation. (b) ~~Parent is~~ Each of the audited consolidated financial statements and the unaudited quarterly financial statements (including, in ~~compliance with~~each case, ~~and has complied,~~ the notes thereto) of the Company included in the SEC Documents when filed complied as to form in all material respects with ~~(i)~~ the applicable provisions of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002 and the related rules and regulations promulgated thereunder, and (ii) the applicable listing and corporate governance rules and regulations of NASDAQ. Parent has established and maintains disclosure controls and procedures and internal control over financial reporting (as such terms are defined in paragraphs (e) and (f), respectively, of Rule 13a-15 under the Exchange Act) as required by Rule 13a-15 under the Exchange Act. Parent’s disclosure controls and procedures are reasonably designed to ensure that all material information required to be disclosed by Parent in the reports that it files or furnishes under the Exchange Act is recorded, processed, summarized and reported within the time periods specified in the rules and forms of the SEC, and that all such material information is accumulated and communicated to the management of Parent as appropriate to allow timely decisions regarding required disclosure and to make the certifications required pursuant to Sections 302 and 906 of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act. The management of Parent has completed its assessment of the effectiveness of Parent’s internal control over financial reporting in compliance with the requirements of Section 404 of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act for the year ended December 31, 2006, and such assessment concluded that such controls were effective to provide reasonable assurance regarding the reliability of Parent’s financial reporting and the preparation of Parent’s financial statements for external purposes in accordance with GAAP. Parent has disclosed, based on its assessment of the effectiveness of Parent’s internal control over financial reporting in compliance with the requirements of Section 404 of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act for the year ended December 31, 2006, to Parent’s independent registered accounting firm and the audit committee of the Board of Directors of Parent (A) any significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect Parent’s ability to record, process, summarize and report financial information and (B) any fraud, whether or not material, of which there is Parent’s Knowledge that involves management or other employees who have a significant role in Parent’s internal control over financial reporting for the year ended December 31, 2006. Parent any has made available to the Company a summary of any such disclosures made by management to such accounting firm or audit committee for the year ended December 31, 2006. (c) The consolidated financial statements of Parent included in the Parent SEC Documents (the “Parent SEC Financial Statements”) (i) have been prepared in accordance with GAAP (except as may be otherwise indicated therein or in the notes thereto and except, in the case of unaudited consolidated quarterly statements, as permitted by Form 10-Q of the Exchange Act), applied on a consistent basis during the periods involved, (ii) complied in all material respects with published rules and regulations of the SEC with respect thereto, have been prepared in all material respects in accordance with generally accepted accounting principles (“GAAP”) (except, in the case of unaudited quarterly statements, to the extent permitted by Form 10-Q of the SEC or other rules and regulations of the SEC) applied on a consistent basis during the periods involved (~~iii~~except as may be indicated in the notes thereto) and fairly present in all material respects the consolidated financial position of ~~Parent~~ the Company and its consolidated ~~Parent~~ Subsidiaries as of the ~~respective~~ dates thereof and the consolidated ~~statements~~ results of ~~income,~~ their operations and cash flows ~~and changes in stockholders’ equity~~ for the ~~respective~~ periods then ended (subject, in the case of unaudited quarterly statements, to normal year-end ~~audit~~ adjustments and the absence of footnotes). (dc) As Except for matters reflected or reserved against in the most recent consolidated balance sheet of ~~March 31, 2007~~the Company (or the notes thereto) included in the Filed SEC Documents, neither ~~Parent~~ the Company nor any of ~~the Parent~~ its Subsidiaries ~~had~~ has any liabilities or obligations (whether absolute, accrued, contingent, fixed or otherwise) of any nature that would ~~have been~~ be required ~~by GAAP~~ under GAAP, as in effect on the date of this Agreement, to be reflected ~~in the~~ on a consolidated balance sheet of ~~Parent and~~ the Parent Subsidiaries as of such date, except (i) for such liabilities and obligations reflected, reserved against or otherwise disclosed in the consolidated balance sheet of Parent and the Parent Subsidiaries as of such date Company (including the notes thereto~~) that is included in the Parent SEC Financial Statements and (ii) for such~~ ), except liabilities and obligations as that (A) were incurred since the date of such balance sheet in the Ordinary Course of Business, (B) are incurred in connection with the preparation, negotiation and consummation of the transactions contemplated by this Agreement, or (C) would ~~not be reasonably expected to have~~not, individually or in the aggregate, reasonably be expected to have a ~~Parent~~ Material Adverse Effect (it is understood and agreed that the representations and warranties contained in this Section 5.5(d): (x) do not apply to matters described in any of Section 5.4, the other provisions of this Section 5.5, and Sections 5.7, 5.8, 5.9, 5.10, 5.11 and 5.17 (which are addressed exclusively in those Sections) and (y) shall not be deemed breached if such breach relates to a matter which is covered by a representation or warranty of Parent and Merger Sub contained in this Article V (other than this Section 5.5(d)) that contains a “Parent’s Knowledge” qualification)Effect. (e) Since December 31, 2006 to the date of this Agreement, (i) neither Parent nor any Parent Subsidiary nor, to Parent’s Knowledge, any director, officer, auditor, accountant or representative of Parent or any of the Parent Subsidiaries has received any written complaint, allegation, assertion or claim that Parent or any of the Parent Subsidiaries has engaged in improper or illegal accounting or auditing practices or maintains improper or inadequate internal accounting controls relating to Parent and the Parent Subsidiaries, taken as a whole, (ii) no attorney representing Parent or any Parent Subsidiary has made a report to Parent’s chief legal officer, chief executive officer or Board of Directors (or any committee thereof) pursuant to the SEC’s Standards of Professional Conduct for Attorneys (17 CFR Part 205), and (iii) Parent has disclosed to its outside auditors any fraud, whether or not material, of which there is Parent’s Knowledge that involves management or other employees who have a significant role in Parent’s internal control over financial reporting.

Appears in 2 contracts

Sources: Merger Agreement (Smith & Nephew PLC), Merger Agreement (Osiris Therapeutics, Inc.)

SEC Documents; Financial Statements; Undisclosed Liabilities. (ai) ~~Parent has~~ T-Mobile and its subsidiaries have filed or furnished all required registration statements, prospectuses, reports, schedules, ~~forms~~ forms, statements, certifications and ~~registration statements~~ other documents (including all exhibits and other information filed therewith or incorporated therein (including by reference), regardless of when such exhibits and other information were filed) with the SEC ~~required to be filed by it pursuant to the Securities Act and the Securities Act Rules, or the Exchange Act and the Exchange Act Rules, in each such case~~ since January 1, ~~2005~~ 2016 (~~collectively, and in each case including all annexes and schedules thereto and documents incorporated by reference therein,~~ the “~~Parent~~ T-Mobile SEC Documents”). As of their respective ~~dates (or if subsequently amended or superseded by a filing prior to the date of this Agreement, on the date of such filing)~~dates, the ~~Parent~~ T-Mobile SEC Documents complied ~~as to form~~ in all material respects with the requirements of the Securities ~~Act or~~ Act, the Exchange Act and the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act, as the case may be, and the rules and regulations of the SEC promulgated thereunder applicable to ~~such Parent~~ the T-Mobile SEC Documents, and none of the ~~Parent~~ T-Mobile SEC Documents ~~as of such dates~~ when filed and at their respective effective times, if applicable, contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading. ~~To Parent’s Knowledge~~Prior to the date of this Agreement, as T-Mobile has furnished to Sprint true and complete copies of all comment letters from the SEC since January 1, 2016 through the date of this Agreement with respect to any of the T-Mobile SEC Documents, together with all written responses of T-Mobile thereto, other than any such letters and responses that are publicly available on ▇▇▇▇▇ prior to the date of this Agreement. As of the date ~~hereof~~of this Agreement, there are no outstanding or unresolved comments received from the SEC with respect to any of the T-Mobile SEC Documents, and, to the knowledge of T-Mobile, none of the ~~Parent~~ T-Mobile SEC Documents is the subject of ~~ongoing~~ any outstanding SEC ~~review~~comment or investigation. No subsidiary of T-Mobile is required to file periodic reports with the SEC pursuant to the requirements of the Exchange Act. (bii) ~~Parent is~~ The consolidated financial statements (including all related notes and schedules) of T-Mobile and its subsidiaries included in ~~compliance with, and has complied,~~ the T-Mobile SEC Documents (the “T-Mobile Financial Statements”) when filed complied in all material respects with ~~(i)~~ the applicable ~~provisions of~~ accounting requirements and with the ~~▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002 and the related rules and regulations promulgated thereunder, and (ii) the applicable listing and corporate governance~~ published rules and regulations of ~~NASDAQ. Parent~~ the SEC with respect thereto, were prepared in accordance with GAAP (except, in the case of unaudited statements, as permitted by the SEC) applied on a consistent basis during the periods involved (except as may be indicated in the notes thereto) and fairly present in all material respects the consolidated financial position of T-Mobile and its consolidated subsidiaries as of the dates thereof and the consolidated results of their operations and cash flows for the periods then ended (subject, in the case of unaudited statements, to normal year-end audit adjustments which are not material and to any other adjustments described therein, including the notes thereto). (iii) Except (A) as (and to the extent) reflected or reserved against in T-Mobile’s audited balance sheet as of December 31, 2017 (or the notes thereto) included in the T-Mobile Filed SEC Documents, (B) for liabilities and obligations incurred in the ordinary course of business consistent with past practice since December 31, 2017, and (C) for liabilities and obligations incurred in connection with or contemplated by this Agreement, neither T-Mobile nor any of its subsidiaries has ~~established~~ any liabilities or obligations of any nature (whether accrued, absolute, contingent or otherwise, and whether or not required by GAAP to be reflected on a consolidated balance sheet of T-Mobile and its subsidiaries (or in the notes thereto)) that, individually or in the aggregate, would reasonably be expected to have a Material Adverse Effect on T-Mobile. (iv) T-Mobile maintains ~~disclosure controls and procedures and~~ a system of “internal control over financial ~~reporting~~ reporting” (as ~~such terms are~~ defined in ~~paragraphs (e~~Rules 13a-15(f) and ~~(f), respectively,~~ 15d-15(f) of ~~Rule 13a-15 under~~ the Exchange Act) reasonably designed to provide reasonable assurance regarding the reliability of T-Mobile’s financial reporting and the preparation of T-Mobile’s financial statements for external purposes in accordance with GAAP and that includes policies and procedures that (A) pertain to the maintenance of records that in reasonable detail accurately and fairly reflect the transactions and dispositions of the assets of T-Mobile, (B) provide reasonable assurance that transactions are recorded as ~~required~~ necessary to permit preparation of financial statements in accordance with GAAP, and that receipts and expenditures of T-Mobile are being made only in accordance with authorizations of management and directors of T-Mobile and (C) provide reasonable assurance regarding prevention or timely detection of unauthorized acquisition, use or disposition of T-Mobile’s assets that could have a material effect on its financial statements. Since January 1, 2016, none of T-Mobile, T-Mobile’s independent accountants, the Board of Directors of T-Mobile or its audit committee has received any written or, to the knowledge of T-Mobile, oral notification of any (1) “significant deficiency” in the internal controls over financial reporting of T-Mobile, (2) “material weakness” in the internal controls over financial reporting of T-Mobile or (3) fraud, whether or not material, that involves management or other employees of T-Mobile who have a significant role in the internal controls over financial reporting of T-Mobile. Since January 1, 2016 through the date of this Agreement, there have been no material internal investigations regarding accounting, auditing or revenue recognition discussed with, reviewed by ~~Rule 13a-15 under~~ or initiated at the direction of the chief executive officer, chief financial officer, chief accounting officer or general counsel of T-Mobile or the Board of Directors of T-Mobile or any committee thereof. (v) The “disclosure controls and procedures” (as defined in Rules 13a-15(e) and 15d-15(e) of the Exchange Act~~. Parent’s disclosure controls and procedures~~ ) utilized by T-Mobile are reasonably designed to ensure that all ~~material~~ information (both financial and non-financial) required to be disclosed by ~~Parent~~ T-Mobile in the reports that it files or ~~furnishes~~ submits under the Exchange Act is recorded, processed, summarized and reported within the time periods specified in the rules and forms of the ~~SEC,~~ SEC and that all such ~~material~~ information required to be disclosed is accumulated and communicated to the management of ~~Parent~~ T-Mobile, as ~~appropriate~~ appropriate, to allow timely decisions regarding required disclosure and to enable the chief executive officer and chief financial officer of T-Mobile to make the certifications required under the Exchange Act with respect to such reports. (vi) Since January 1, 2016, (A) neither T-Mobile nor any of its subsidiaries has received any written or, to the knowledge of T-Mobile, oral complaint, allegation, assertion or claim regarding accounting, internal accounting controls or auditing practices, procedures, methodologies or methods of T-Mobile or any of its subsidiaries, or unlawful accounting or auditing matters with respect to T-Mobile or any of its subsidiaries, and (B) no attorney representing T-Mobile or any of its subsidiaries, whether or not employed by T-Mobile or any of its subsidiaries, has reported evidence of a violation of securities Laws, breach of fiduciary duty or similar violation by T-Mobile or any of its subsidiaries or any of their respective officers, directors, employees or agents to the Board of Directors of T-Mobile or any committee thereof or to the general counsel or chief executive officer of T-Mobile pursuant to ~~Sections 302 and 906~~ the rules of the SEC adopted under Section 307 of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act~~. The management of Parent has completed its assessment of the effectiveness of Parent’s internal control over financial reporting~~ , in compliance with the requirements of Section 404 of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act for the year ended December 31, 2006, and such assessment concluded that such controls were effective to provide reasonable assurance regarding the reliability of Parent’s financial reporting and the preparation of Parent’s financial statements for external purposes in accordance with GAAP. Parent has disclosed, based on its assessment of the effectiveness of Parent’s internal control over financial reporting in compliance with the requirements of Section 404 of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act for the year ended December 31, 2006, to Parent’s independent registered accounting firm and the audit committee of the Board of Directors of Parent each case (A) any significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect Parent’s ability to record, process, summarize and report financial information and (B) any fraud, whether or not material, of which there is Parent’s Knowledge that involves management or other employees who have a significant role in Parent’s internal control over financial reporting for the year ended December 31, 2006. Parent any has made available to the Company a summary of any such disclosures made by management to such accounting firm or audit committee for the year ended December 31, 2006. (c) The consolidated financial statements of Parent included in the Parent SEC Documents (the “Parent SEC Financial Statements”) (i) have been prepared in accordance with GAAP (except as may be otherwise indicated therein or in the notes thereto and except, in the case of unaudited consolidated quarterly statements, as permitted by Form 10-Q of the Exchange Act), applied on a consistent basis during the periods involved, (ii) complied in all material respects with published rules and regulations of the SEC with respect thereto, and (iii) fairly present in all material respects the consolidated financial position of Parent and its consolidated Parent Subsidiaries as of the respective dates thereof and the consolidated statements of income, cash flows and changes in stockholders’ equity for the respective periods then ended (subject, in the case of unaudited quarterly statements, to normal year-end audit adjustments and the absence of footnotes). (d) As of March 31, 2007, neither Parent nor any of the Parent Subsidiaries had any liabilities or obligations that would have been required by GAAP to be reflected in the consolidated balance sheet of Parent and the Parent Subsidiaries as of such date, except (i) for such liabilities and obligations reflected, reserved against or otherwise disclosed in the consolidated balance sheet of Parent and the Parent Subsidiaries as of such date (including the notes thereto) that is included in the Parent SEC Financial Statements and (ii) for such liabilities and obligations as would not be reasonably expected to haveas, individually or in the aggregate, ~~a Parent Material Adverse Effect (it is understood and agreed that the representations and warranties contained in this Section 5.5(d): (x) do~~ has not ~~apply to matters described in any of Section 5.4, the other provisions of this Section 5.5~~been, and ~~Sections 5.7~~would not reasonably be expected to be, ~~5.8, 5.9, 5.10, 5.11~~ materially adverse to T-Mobile and 5.17 (which are addressed exclusively in those Sections) and (y) shall not be deemed breached if such breach relates to a matter which is covered by a representation or warranty of Parent and Merger Sub contained in this Article V (other than this Section 5.5(d)) that contains a “Parent’s Knowledge” qualification). (e) Since December 31, 2006 to the date of this Agreement, (i) neither Parent nor any Parent Subsidiary nor, to Parent’s Knowledge, any director, officer, auditor, accountant or representative of Parent or any of the Parent Subsidiaries has received any written complaint, allegation, assertion or claim that Parent or any of the Parent Subsidiaries has engaged in improper or illegal accounting or auditing practices or maintains improper or inadequate internal accounting controls relating to Parent and the Parent Subsidiariesits subsidiaries, taken as a whole. (vii) Neither T-Mobile nor any of its subsidiaries is a party to, or has any commitment to become a party to, any joint venture, off-balance sheet partnership or similar contract (~~ii) no attorney representing Parent~~ including any contract or arrangement relating to any transaction or relationship between or among T-Mobile and any of its subsidiaries, on the one hand, and any unconsolidated affiliate, including any structured finance, special purpose or limited purpose entity or person, on the other hand, or any ~~Parent Subsidiary has made a report~~ “off-balance sheet arrangements” (as defined in Item 303(a) of Regulation S-K under the Exchange Act)), where the result, purpose or intended effect of such contract is to ~~Parent’s chief legal officer~~avoid disclosure of any material transaction involving, ~~chief executive officer~~ or ~~Board of Directors (~~material liabilities of, T-Mobile or any ~~committee thereof~~of its subsidiaries in the T-Mobile Financial Statements or otherwise in the T-Mobile SEC Documents. (viii) ~~pursuant to~~ T-Mobile is in compliance in all material respects with the ~~SEC’s Standards~~ applicable rules and regulations of ~~Professional Conduct for Attorneys (17 CFR Part 205),~~ NASDAQ and ~~(iii) Parent has disclosed to its outside auditors any fraud, whether or not material,~~ the applicable listing requirements of ~~which there is Parent’s Knowledge that involves management or other employees who have a significant role in Parent’s internal control over financial reporting~~NASDAQ.

Appears in 2 contracts

Sources: Business Combination Agreement (T-Mobile US, Inc.), Business Combination Agreement (SPRINT Corp)

SEC Documents; Financial Statements; Undisclosed Liabilities. (a) ~~Parent~~ The Company has filed or furnished all reports, schedules, ~~forms~~ forms, statements, registration statements, prospectuses and ~~registration statements with the SEC~~ other documents (including exhibits and other information incorporated therein) required to be filed or furnished by ~~it pursuant to~~ the Company with the SEC under the Securities Act ~~and the Securities Act Rules,~~ or the Exchange Act ~~and the Exchange Act Rules, in each such case~~ since January 1, ~~2005~~ 2013 (~~collectively~~such documents, together with any documents filed or furnished during such period, by the Company to the SEC on a voluntary basis, in each case, as have been amended since the time of their filing or furnishing, and ~~in each case~~ including all ~~annexes and schedules thereto and documents incorporated by reference therein~~exhibits thereto, the “~~Parent~~ Company SEC Documents”). No Company Subsidiary is, or has at any time since January 1, 2014, been, subject to the periodic reporting requirements of the Exchange Act or is or has been otherwise required to file any form, report, statement, schedule, certificate or other document with the SEC. (b) As of ~~their~~ its respective ~~dates (or~~ date, or, if ~~subsequently~~ amended ~~or superseded by a filing~~ prior to the date hereof, as of ~~this Agreement, on~~ the date of the last such ~~filing)~~amendment, each of the ~~Parent~~ Company SEC Documents complied ~~as to form~~ when filed or furnished (or, if applicable, when amended) in all material respects with the requirements of the Securities ~~Act or~~ Act, the Exchange ~~Act, as the case may be,~~ Act and the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002 and the related rules and regulations ~~of the SEC~~ promulgated thereunder or under the Exchange Act (the “▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act”), in each case to the extent applicable to such ~~Parent~~ Company SEC Documents, and none of the ~~Parent~~ Company SEC Documents as when filed or furnished (or in the case of ~~such dates~~ a registration statement under the Securities Act, at the time it was declared effective) contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not ~~misleading. To Parent’s Knowledge~~misleading (and no Company SEC Document that is a registration statement, as amended or supplemented, if applicable, filed pursuant to the Securities Act, as of the date ~~hereof~~such registration statement or amendment became effective, ~~none~~ contained any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary to make the ~~Parent SEC Documents is the subject of ongoing SEC review~~statements therein not misleading). (bc) ~~Parent~~ The consolidated financial statements of the Company included in the Company SEC Documents (including, in each case, any notes or schedules thereto) and all related compilations, reviews and other reports issued by the Company’s accountants with respect thereto (the “Company SEC Financial Statements”), have been derived from the accounting books and records of the Company and the Company Subsidiaries and (i) were prepared in accordance with GAAP applied on a consistent basis during the periods involved (except as may be indicated in the notes thereto and except, in the case of the unaudited interim statements, as may be permitted by Form 10-Q and Regulation S-X of the SEC) and (ii) fairly present, in all material respects, the consolidated financial position of the Company and the Company Subsidiaries, as at the respective dates thereof, and the consolidated results of their operations, and, where included, their consolidated stockholders’ equity and their consolidated cash flows for the respective periods indicated (subject, in the case of the unaudited statements, to normal year-end audit adjustments and the absence of notes or with respect to pro forma information, subject to the qualifications stated therein). Except as required by GAAP and disclosed in the Company SEC Documents, between January 1, 2015 and the date of this Agreement, the Company has not made or adopted any material change in its accounting methods, practices or policies. (d) The Company is in compliance ~~with, and has complied,~~ in all material respects with (i) the applicable provisions of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act ~~of 2002 and the related rules and regulations promulgated thereunder,~~ and (ii) the applicable listing and corporate governance rules and regulations of ~~NASDAQ~~the NYSE. (e) As of the date hereof, there are no material outstanding or unresolved comments in comment letters received from the SEC staff with respect to any Company SEC Documents and none of the Company SEC Documents is, to the Knowledge of the Company, the subject of ongoing SEC review. ~~Parent~~ There are no formal internal investigations, any SEC inquiries or investigations or other inquiries or investigations by Governmental Entities that, to the Knowledge of the Company, are pending or threatened, in each case regarding any accounting practices of the Company or any Company Subsidiary. (f) The Company has ~~established~~ designed and ~~maintains~~ maintained disclosure controls and procedures and internal control over financial reporting (as such terms are defined in ~~paragraphs (e) and (f), respectively, of~~ Rule 13a-15 and Rule 15d-15 under the Exchange Act) as required by ~~Rule~~ Rules 13a-15 and 15d-15 under the Exchange Act. ~~Parent~~The Company’s disclosure controls and procedures are ~~reasonably~~ designed to ensure that all ~~material~~ information (both financial and non-financial) required to be disclosed by ~~Parent~~ the Company in the reports that it files or furnishes under the Exchange Act is recorded, processed, summarized and reported within the time periods specified in the rules and forms of the SEC, and that all such ~~material~~ information is accumulated and communicated to the Company’s management ~~of Parent~~ as appropriate to allow timely decisions regarding required disclosure and to make the certifications required pursuant to Sections 302 and 906 of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act. The Company’s management ~~of Parent~~ has completed ~~its~~ an assessment of the effectiveness of ~~Parent~~the Company’s ~~internal control over financial reporting~~ disclosure controls and procedures and, to the extent required by applicable Law, presented in ~~compliance with the requirements of Section 404 of the ▇▇▇▇▇▇▇▇~~any applicable Company SEC Document that is a report on Form 10-~~▇▇▇▇▇ Act for the year ended December 31~~K or Form 10-Q, ~~2006~~or any amendment thereto, and such assessment concluded that such controls were effective to provide reasonable assurance regarding the reliability of Parent’s financial reporting and the preparation of Parent’s financial statements for external purposes in accordance with GAAP. Parent has disclosed, based on its ~~assessment of~~ conclusions about the effectiveness of ~~Parent~~the disclosure controls and procedures as of the end of the period covered by such report or amendment based on such evaluation. Based on the Company’s management’s most recently completed evaluation of the Company’s internal ~~control~~ controls over financial ~~reporting in compliance with~~ reporting, the ~~requirements~~ Company has no Knowledge of Section 404 of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act for the year ended December 31, 2006, to Parent’s independent registered accounting firm and the audit committee of the Board of Directors of Parent (Ai) any significant deficiencies and material weaknesses in the design or operation of its internal ~~control~~ controls over financial reporting ~~which~~ that are reasonably likely to adversely affect ~~Parent~~in any material respect the Company’s ability to record, process, summarize and report financial information and (Bii) any fraud, whether or not material, ~~of which there is Parent’s Knowledge~~ that involves management or other employees who have a significant role in ~~Parent~~the Company’s internal ~~control~~ controls over financial ~~reporting~~ reporting. Since January 1, 2014, to the Knowledge of the Company as of the date hereof, the Company has not received any material complaints from any source regarding accounting, internal accounting controls or auditing matters. (g) The Company and the Company Subsidiaries do not have any liabilities or obligations of any nature (whether absolute or contingent, asserted or unasserted, known or unknown, primary or secondary, direct or indirect, and whether or not accrued), except (i) those that, individually or in the aggregate, have not had and would not reasonably be expected to have a Company Material Adverse Effect, (ii) as reflected or reserved against in the most recent audited balance sheet included in the Company SEC Financial Statements or included in or reasonably apparent from the notes or management’s discussions and analysis related thereto, (iii) for liabilities and obligations incurred in the ordinary course of business since the date of the most recent audited balance sheet included in the Company SEC Financial Statements and (iv) for liabilities and obligations arising out of or in connection with this Agreement or the Mergers. Neither the Company nor any Company Subsidiary is a party to, or has any commitment to become a party to, any joint venture, off-balance sheet partnership or any similar Contract or arrangement (including any Contract or arrangement relating to any transaction or relationship between or among the Company and any of the Company Subsidiaries, on the one hand, and any unconsolidated Affiliate, including any structured finance, special purpose or limited purpose entity or Person, on the other hand, or any material “off balance sheet arrangement” (as defined in Item 303(a) of Regulation S-K of the Exchange Act)), where the purpose or intended effect of such Contract or arrangement is to avoid disclosure of any material transaction involving, or material liabilities of, the Company or any Company Subsidiary in the Company SEC Financial Statements or other Company SEC Documents. (h) With respect to Company Regulated Subsidiaries that produce statutory financial statements, the Company has previously delivered or made available to Parent correct and complete copies of the statutory financial statements of each such Company Regulated Subsidiary, as filed with the applicable domestic regulators for the year ended December 31, ~~2006~~2014, together with all exhibits, statements and schedules thereto (together, the “Subsidiary SAP Statements”), or such Subsidiary SAP Statements are otherwise publicly available. ~~Parent any has made available to~~ The Subsidiary SAP Statements were prepared from the books and records of the applicable Company ~~a summary~~ Regulated Subsidiary, fairly present, in all material respects, the respective statutory financial conditions of ~~any~~ each of such ~~disclosures made by management to such accounting firm or audit committee~~ Company Regulated Subsidiaries at the respective dates thereof, and the statutory results of operations for the ~~year~~ periods then ended ~~December 31, 2006. (c) The consolidated financial statements of Parent included in the Parent SEC Documents (the “Parent SEC Financial Statements”) (i) have been prepared~~ in accordance with ~~GAAP (except as may be otherwise indicated therein or in the notes thereto and except, in the case of unaudited consolidated quarterly statements, as permitted by Form 10-Q of the Exchange Act),~~ Applicable SAP applied on a consistent basis ~~during the periods involved, (ii) complied~~ in all material respects throughout the periods indicated and consistent with ~~published rules~~ each other, except as otherwise specifically noted therein. (i) With respect to Company Regulated Subsidiaries that do not produce statutory financial statements but do submit financial statements to their respective domestic regulators, the Company has previously delivered or made available to Parent correct and ~~regulations~~ complete copies of the ~~SEC~~ financial statements of each such Company Regulated Subsidiary, as filed with ~~respect thereto~~the applicable domestic regulators since January 1, 2014 and for each subsequent quarterly period, together with all exhibits and schedules thereto (~~iii)~~ the “Subsidiary Statements”). The Subsidiary Statements fairly ~~present~~ present, in all material ~~respects~~ respects, the ~~consolidated~~ respective financial ~~position~~ conditions of ~~Parent and its consolidated Parent~~ each of such Company Regulated Subsidiaries ~~as of~~ at the respective dates ~~thereof~~ thereof, and the ~~consolidated statements~~ results of ~~income, cash flows and changes in stockholders’ equity~~ operations for the ~~respective~~ periods then ended ~~(subject,~~ in accordance with applicable accounting rules applied on a consistent basis throughout the ~~case of unaudited quarterly statements, to normal year-end audit adjustments~~ periods indicated and the absence of footnotes). (d) As of March 31, 2007, neither Parent nor any of the Parent Subsidiaries had any liabilities or obligations that would have been required by GAAP to be reflected in the consolidated balance sheet of Parent and the Parent Subsidiaries as of such dateconsistent with each other, except ~~(i) for such liabilities and obligations reflected, reserved against or~~ as otherwise disclosed in the consolidated balance sheet of Parent and the Parent Subsidiaries as of such date (including the notes thereto) that is included in the Parent SEC Financial Statements and (ii) for such liabilities and obligations as would not be reasonably expected to have, individually or in the aggregate, a Parent Material Adverse Effect (it is understood and agreed that the representations and warranties contained in this Section 5.5(d): (x) do not apply to matters described in any of Section 5.4, the other provisions of this Section 5.5, and Sections 5.7, 5.8, 5.9, 5.10, 5.11 and 5.17 (which are addressed exclusively in those Sections) and (y) shall not be deemed breached if such breach relates to a matter which is covered by a representation or warranty of Parent and Merger Sub contained in this Article V (other than this Section 5.5(d)) that contains a “Parent’s Knowledge” qualification)specifically noted therein. (e) Since December 31, 2006 to the date of this Agreement, (i) neither Parent nor any Parent Subsidiary nor, to Parent’s Knowledge, any director, officer, auditor, accountant or representative of Parent or any of the Parent Subsidiaries has received any written complaint, allegation, assertion or claim that Parent or any of the Parent Subsidiaries has engaged in improper or illegal accounting or auditing practices or maintains improper or inadequate internal accounting controls relating to Parent and the Parent Subsidiaries, taken as a whole, (ii) no attorney representing Parent or any Parent Subsidiary has made a report to Parent’s chief legal officer, chief executive officer or Board of Directors (or any committee thereof) pursuant to the SEC’s Standards of Professional Conduct for Attorneys (17 CFR Part 205), and (iii) Parent has disclosed to its outside auditors any fraud, whether or not material, of which there is Parent’s Knowledge that involves management or other employees who have a significant role in Parent’s internal control over financial reporting.

Appears in 2 contracts

Sources: Merger Agreement (Health Net Inc), Merger Agreement (Centene Corp)

SEC Documents; Financial Statements; Undisclosed Liabilities. (ai) ~~Parent~~ UTC has filed or furnished all required registration statements, prospectuses, reports, schedules, ~~forms~~ forms, statements, certifications and ~~registration statements~~ other documents (including exhibits and all other information incorporated therein, regardless of when such exhibits and other information were filed) with the SEC ~~required to be filed by it pursuant to the Securities Act and the Securities Act Rules, or the Exchange Act and the Exchange Act Rules, in each such case~~ since January 1, ~~2005~~ 2017 (~~collectively, and in each case including all annexes and schedules thereto and documents incorporated by reference therein,~~ the “~~Parent~~ UTC SEC Documents”). As of their respective ~~dates (or if subsequently amended or superseded by a filing prior to the date of this Agreement, on the date of such filing)~~dates, the ~~Parent~~ UTC SEC Documents complied ~~as to form~~ in all material respects with the requirements of the Securities ~~Act or~~ Act, the Exchange Act and the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act, as the case may be, and the rules and regulations of the SEC promulgated thereunder applicable to ~~such Parent~~ the UTC SEC Documents, and none of the ~~Parent~~ UTC SEC Documents ~~as of such dates~~ when filed and at their respective effective times, if applicable, contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading. ~~To Parent’s Knowledge, as~~ As of the date ~~hereof~~of this Agreement, there are no outstanding or unresolved comments received from the SEC with respect to any of the UTC SEC Documents, and, to the knowledge of UTC, none of the ~~Parent~~ UTC SEC Documents is the subject of ~~ongoing~~ any outstanding SEC ~~review~~comment or investigation. Except in connection with the Separation and the Distributions, no subsidiary of UTC is required to file reports with the SEC pursuant to the requirements of the Exchange Act. (bii) ~~Parent is~~ The consolidated financial statements (including all related notes and schedules) of UTC and its subsidiaries included in ~~compliance with, and has complied,~~ the UTC SEC Documents (the “UTC Financial Statements”) were prepared in all material respects in accordance with GAAP (iexcept, in the case of unaudited statements, as permitted by the SEC) applied on a consistent basis during the ~~applicable provisions~~ periods involved (except as may be indicated in the notes thereto) and fairly present in all material respects the consolidated financial position of UTC and its consolidated subsidiaries as of the ~~▇▇▇▇▇▇▇▇~~dates thereof and the consolidated results of their operations and cash flows for the periods then ended (subject, in the case of unaudited statements, to normal year-end audit adjustments which are not material and to any other adjustments described therein, including the notes thereto). (iii) Except (A) as reflected or reserved against in UTC’s audited balance sheet as of December 31, 2018 (or the notes thereto) included in UTC’s Annual Report on Form 10-K filed with the SEC on February 7, 2019 and amended on ▇▇▇▇▇ ~~Act~~ ▇, ▇▇▇▇, (▇) for liabilities and obligations incurred in the ordinary course of ~~2002~~ business consistent with past practice since December 31, 2018 and (C) for liabilities and obligations incurred in connection with or contemplated by this Agreement or the Separation and the ~~related rules~~ Distributions, neither UTC nor any of its subsidiaries has any liabilities or obligations of any nature (whether accrued, absolute, contingent or otherwise) that would be required by GAAP to be reflected on a consolidated balance sheet of UTC and ~~regulations promulgated thereunder~~its subsidiaries (or in the notes thereto) that, ~~and~~ individually or in the aggregate, would reasonably be expected to have a Material Adverse Effect on UTC. (iiiv) ~~the applicable listing and corporate governance rules and regulations~~ UTC maintains a system of ~~NASDAQ. Parent has established and maintains disclosure controls and procedures and~~ “internal control over financial ~~reporting~~ reporting” (as ~~such terms are~~ defined in ~~paragraphs (e~~Rules 13a-15(f) and ~~(f), respectively,~~ 15d-15(f) of ~~Rule 13a-15 under~~ the Exchange Act) sufficient to provide reasonable assurance (A) that transactions are recorded as ~~required by Rule 13a-15 under~~ necessary to permit preparation of financial statements in conformity with GAAP, consistently applied, (B) that transactions are executed only in accordance with the authorization of management and (C) regarding prevention or timely detection of the unauthorized acquisition, use or disposition of UTC’s properties or assets. Since January 1, 2017, none of UTC, UTC’s independent accountants, the Board of Directors of UTC or its audit committee has received any oral or written notification of any (1) “significant deficiency” in the internal controls over financial reporting of UTC, (2) “material weakness” in the internal controls over financial reporting of UTC or (3) fraud, whether or not material, that involves management or other employees of UTC who have a significant role in the internal controls over financial reporting of UTC. (v) The “disclosure controls and procedures” (as defined in Rules 13a-15(e) and 15d-15(e) of the Exchange Act~~. Parent’s disclosure controls and procedures~~ ) utilized by UTC are reasonably designed to ensure that all ~~material~~ information (both financial and non-financial) required to be disclosed by ~~Parent~~ UTC in the reports that it files or ~~furnishes~~ submits under the Exchange Act is recorded, processed, summarized and reported within the time periods specified in the rules and forms of the ~~SEC,~~ SEC and that all such ~~material~~ information required to be disclosed is accumulated and communicated to the management of ~~Parent~~ UTC, as ~~appropriate~~ appropriate, to allow timely decisions regarding required disclosure and to enable the chief executive officer and chief financial officer of UTC to make the certifications required ~~pursuant to Sections 302 and 906 of~~ under the ~~▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act. The management of Parent has completed its assessment of the effectiveness of Parent’s internal control over financial reporting in compliance~~ Exchange Act with the requirements of Section 404 of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act for the year ended December 31, 2006, and such assessment concluded that such controls were effective to provide reasonable assurance regarding the reliability of Parent’s financial reporting and the preparation of Parent’s financial statements for external purposes in accordance with GAAP. Parent has disclosed, based on its assessment of the effectiveness of Parent’s internal control over financial reporting in compliance with the requirements of Section 404 of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act for the year ended December 31, 2006, to Parent’s independent registered accounting firm and the audit committee of the Board of Directors of Parent (A) any significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect Parent’s ability to record, process, summarize and report financial information and (B) any fraud, whether or not material, of which there is Parent’s Knowledge that involves management or other employees who have a significant role in Parent’s internal control over financial reporting for the year ended December 31, 2006. Parent any has made available to the Company a summary of any such disclosures made by management respect to such ~~accounting firm or audit committee for the year ended December 31, 2006~~reports. (cvi) ~~The consolidated financial statements~~ Neither UTC nor any of ~~Parent included~~ its subsidiaries is a party to, or has any commitment to become a party to, any joint venture, off-balance sheet partnership or any similar contract (including any contract or arrangement relating to any transaction or relationship between or among UTC and any of its subsidiaries, on the one hand, and any unconsolidated affiliate, including any structured finance, special purpose or limited purpose entity or person, on the other hand, or any “off-balance sheet arrangements” (as defined in ~~the Parent SEC Documents (the “Parent SEC Financial Statements”~~Item 303(a) ~~(i) have been prepared in accordance with GAAP (except as may be otherwise indicated therein or in the notes thereto and except, in the case~~ of ~~unaudited consolidated quarterly statements, as permitted by Form 10~~Regulation S-~~Q of~~ K under the Exchange Act)), ~~applied on a consistent basis during~~ where the periods involved, (ii) complied in all material respects with published rules and regulations of the SEC with respect thereto, and (iii) fairly present in all material respects the consolidated financial position of Parent and its consolidated Parent Subsidiaries as of the respective dates thereof and the consolidated statements of income, cash flows and changes in stockholders’ equity for the respective periods then ended (subject, in the case of unaudited quarterly statements, to normal year-end audit adjustments and the absence of footnotes). (d) As of March 31, 2007, neither Parent nor any of the Parent Subsidiaries had any liabilities purpose or ~~obligations that would have been required by GAAP to be reflected in the consolidated balance sheet of Parent and the Parent Subsidiaries as~~ intended effect of such ~~date~~contract is to avoid disclosure of any material transaction involving, ~~except (i) for such~~ or material liabilities ~~and obligations reflected~~of, reserved against or otherwise disclosed in the consolidated balance sheet of Parent and the Parent Subsidiaries as of such date (including the notes thereto) that is included in the Parent SEC Financial Statements and (ii) for such liabilities and obligations as would not be reasonably expected to have, individually or in the aggregate, a Parent Material Adverse Effect (it is understood and agreed that the representations and warranties contained in this Section 5.5(d): (x) do not apply to matters described in any of Section 5.4, the other provisions of this Section 5.5, and Sections 5.7, 5.8, 5.9, 5.10, 5.11 and 5.17 (which are addressed exclusively in those Sections) and (y) shall not be deemed breached if such breach relates to a matter which is covered by a representation or warranty of Parent and Merger Sub contained in this Article V (other than this Section 5.5(d)) that contains a “Parent’s Knowledge” qualification). (e) Since December 31, 2006 to the date of this Agreement, (i) neither Parent nor any Parent Subsidiary nor, to Parent’s Knowledge, any director, officer, auditor, accountant or representative of Parent UTC or any of ~~the Parent Subsidiaries has received any written complaint, allegation, assertion~~ its subsidiaries in UTC’s or claim that Parent or any of the Parent Subsidiaries has engaged in improper or illegal accounting or auditing practices or maintains improper or inadequate internal accounting controls relating to Parent and the Parent Subsidiaries, taken as a whole, (ii) no attorney representing Parent or any Parent Subsidiary has made a report to Parentsuch subsidiary’s chief legal officer, chief executive officer or Board of Directors (or any committee thereof) pursuant to the SEC’s Standards of Professional Conduct for Attorneys (17 CFR Part 205), and (iii) Parent has disclosed to its outside auditors any fraud, whether or not material, of which there is Parent’s Knowledge that involves management published financial statements or other ~~employees who have a significant role in Parent’s internal control over financial reporting~~UTC SEC Documents.

Appears in 2 contracts

Sources: Merger Agreement (Raytheon Co/), Merger Agreement (United Technologies Corp /De/)

SEC Documents; Financial Statements; Undisclosed Liabilities. (a) Parent has filed or furnished, as applicable, all reports, schedules, ~~forms~~ forms, certifications, statements and ~~registration statements~~ other documents on a timely basis with the SEC required to be filed or furnished, as applicable, by ~~it pursuant to~~ Parent since and including January 1, 2020 through the ~~Securities Act and the Securities Act Rules, or~~ date of this Agreement under the Exchange Act or Securities Act (such documents, together with any documents and ~~the Exchange Act Rules, in each such case since January 1, 2005 (collectively, and in each case including all annexes and schedules thereto and documents~~ information incorporated therein by reference ~~therein~~and together with any documents filed during such period by Parent with the SEC on a voluntary basis on Current Reports on Form 8-K, the “Parent SEC Documents”). . (b) As of ~~their~~ its respective ~~dates~~ date, each Parent SEC Document complied (or ~~if subsequently amended or superseded by a filing prior~~ with respect to Company SEC Documents filed after the date ~~of this Agreement~~hereof, ~~on the date of such filing), the Parent SEC Documents complied~~ will comply) as to form in all material respects with the requirements of the Exchange Act and the Securities Act ~~or the Exchange Act, as the case may be,~~ and the rules and regulations of the SEC promulgated thereunder applicable to such Parent SEC ~~Documents~~Document, ~~and~~ each as in effect on the date so filed. As of their respective dates (or, if amended prior to the date hereof, as of the date of such amendment), except to the extent revised or superseded by a later filed Parent SEC Document, none of the Parent SEC Documents ~~as of such dates~~ contained (or with respect to Company SEC Documents filed after the date hereof, will contain) any untrue statement of a material fact or omitted to state a any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading~~. To Parent’s Knowledge, as~~ . (c) Each of the ~~date hereof, none~~ financial statements (including the related notes) of Parent included in the Parent SEC ~~Documents is~~ Documents, complied as to form at the ~~subject of ongoing SEC review. (b) Parent is in compliance with, and has complied,~~ time it was filed in all material respects with the applicable accounting requirements and the published rules and regulations of the SEC with respect thereto in effect at the time of filing, was prepared in accordance with GAAP in all material respects (except, in the case of unaudited financial statements, as permitted by the rules and regulations of the SEC) applied on a consistent basis during the periods involved (except as may be indicated in the notes thereto) and fairly presented in all material respects the consolidated financial position of Parent and its consolidated 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 unaudited financial statements, to normal year-end audit adjustments). (d) None of Parent or any Parent Subsidiary has any liabilities or obligations of any nature (whether accrued, absolute, contingent or otherwise) except liabilities or obligations (i) disclosed and provided for in the most recent financial statements included in the Filed Parent SEC Documents or of a nature not required by GAAP to be reflected thereon, (ii) related to the future performance of any Contract, (iii) incurred or arising in the ordinary course of business consistent with past practice since the date of the most recent financial statements included in the Filed Parent SEC Documents, (iv) incurred under this Agreement or in connection with the Transactions, (v) disclosed on Section 4.05(d) of the Parent Disclosure Letter, (vi) as would not reasonably be likely to, individually or in the aggregate, have a Parent Material Adverse Effect or (vii) that will be discharged or paid in full prior to the Closing Date. (e) Section 4.05(e) of the Parent Disclosure Letter sets forth with respect to all Indebtedness of Parent and the Parent Subsidiaries for borrowed money outstanding on the date hereof: (i) the ~~applicable provisions~~ amount of such indebtedness, (ii) the lender of such indebtedness, (iii) the interest rate of such indebtedness, (iv) the maturity date of such indebtedness and (v) the collateral securing such indebtedness. (f) Since January 1, 2020, Parent has established and maintained a system of internal control over financial reporting (as defined in Rules 13a-15(f) and 15d-15(f) under the Exchange Act). Such internal controls provide reasonable assurance (i) regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with GAAP, (ii) that transactions are executed in accordance with management’s general or specific authorizations, (iii) that transactions are recorded as necessary to permit preparation of financial statements and to maintain asset accountability, (iv) that access to assets is permitted only in accordance with management’s general or specific authorization and (v) that the recorded accountability for assets is compared with the existing assets at reasonable intervals and appropriate action is taken with respect to any differences. Since January 1, 2020, (x) Parent has designed and maintains disclosure controls and procedures (as defined in Rules 13a-15(e) and 15d-15(e) under the Exchange Act) to ensure that material information required to be disclosed by Parent in the reports that it files or submits under the Exchange Act is recorded, processed, summarized and reported within the time periods specified in the SEC’s rules and forms and is accumulated and communicated to Parent’s management as appropriate to allow timely decisions regarding required disclosure, (y) to the Knowledge of Parent, such disclosure controls and procedures are effective in timely alerting the principal executive officer and principal financial officer of Parent to material information required to be included in Parent’s periodic reports required under the Exchange Act, and (z) Parent’s principal executive officer and its principal financial officer have disclosed to Parent’s independent registered public accounting firm and the audit committee of the Parent Board (and made summaries of such disclosures available to the Company) (A) all known significant deficiencies and material weaknesses in the design or operation of internal controls over financial reporting that are reasonably likely to adversely affect in any material respect Parent’s ability to record, process, summarize and report financial information, and (B) any known fraud, whether or not material, that involves management or other employees who have a significant role in Parent’s internal controls over financial reporting. As of the date of this Agreement, the principal executive officer and principal financial officer of Parent have made all certifications required by the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002 and the ~~related rules and~~ regulations of the SEC promulgated thereunder, and ~~(ii)~~ the applicable listing and corporate governance rules and regulations of NASDAQ. Parent has established and maintains disclosure controls and procedures and internal control over financial reporting (as such terms are defined statements contained in paragraphs (e) and (f), respectively, of Rule 13a-15 under the Exchange Act) as required by Rule 13a-15 under the Exchange Act. Parent’s disclosure controls and procedures are reasonably designed to ensure that all material information required to be disclosed by Parent in the reports that it files or furnishes under the Exchange Act is recorded, processed, summarized and reported within the time periods specified in the rules and forms of the SEC, and that all such ~~material information is accumulated and communicated to the management of Parent as appropriate to allow timely decisions regarding required disclosure and to make the~~ certifications required pursuant to Sections 302 and 906 of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act. The management of Parent has completed its assessment of the effectiveness of Parent’s internal control over financial reporting in compliance with the requirements of Section 404 of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act for the year ended December 31, 2006, and such assessment concluded that such controls were effective to provide reasonable assurance regarding the reliability of Parent’s financial reporting and the preparation of Parent’s financial statements for external purposes in accordance with GAAP. Parent has disclosed, based on its assessment of the effectiveness of Parent’s internal control over financial reporting in compliance with the requirements of Section 404 of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act for the year ended December 31, 2006, to Parent’s independent registered accounting firm and the audit committee of the Board of Directors of Parent (A) any significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect Parent’s ability to record, process, summarize and report financial information and (B) any fraud, whether or not material, of which there is Parent’s Knowledge that involves management or other employees who have a significant role in Parent’s internal control over financial reporting for the year ended December 31, 2006. Parent any has made available to the Company a summary of any such disclosures made by management to such accounting firm or audit committee for the year ended December 31, 2006. (c) The consolidated financial statements of Parent included in the Parent SEC Documents (the “Parent SEC Financial Statements”) (i) have been prepared in accordance with GAAP (except as may be otherwise indicated therein or in the notes thereto and except, in the case of unaudited consolidated quarterly statementswere, as ~~permitted by Form 10-Q~~ of ~~the Exchange Act)~~their respective dates made, ~~applied on a consistent basis during the periods involved, (ii) complied~~ complete and correct in all material respects with published rules and regulations of the SEC with respect thereto, and (iii) fairly present in all material respects the consolidated financial position of Parent and its consolidated Parent Subsidiaries as of the respective dates thereof and the consolidated statements of income, cash flows and changes in stockholders’ equity for the respective periods then ended (subject, in the case of unaudited quarterly statements, to normal year-end audit adjustments and the absence of footnotes)respects. (d) As of March 31, 2007, neither Parent nor any of the Parent Subsidiaries had any liabilities or obligations that would have been required by GAAP to be reflected in the consolidated balance sheet of Parent and the Parent Subsidiaries as of such date, except (i) for such liabilities and obligations reflected, reserved against or otherwise disclosed in the consolidated balance sheet of Parent and the Parent Subsidiaries as of such date (including the notes thereto) that is included in the Parent SEC Financial Statements and (ii) for such liabilities and obligations as would not be reasonably expected to have, individually or in the aggregate, a Parent Material Adverse Effect (it is understood and agreed that the representations and warranties contained in this Section 5.5(d): (x) do not apply to matters described in any of Section 5.4, the other provisions of this Section 5.5, and Sections 5.7, 5.8, 5.9, 5.10, 5.11 and 5.17 (which are addressed exclusively in those Sections) and (y) shall not be deemed breached if such breach relates to a matter which is covered by a representation or warranty of Parent and Merger Sub contained in this Article V (other than this Section 5.5(d)) that contains a “Parent’s Knowledge” qualification). (e) Since December 31, 2006 to the date of this Agreement, (i) neither Parent nor any Parent Subsidiary nor, to Parent’s Knowledge, any director, officer, auditor, accountant or representative of Parent or any of the Parent Subsidiaries has received any written complaint, allegation, assertion or claim that Parent or any of the Parent Subsidiaries has engaged in improper or illegal accounting or auditing practices or maintains improper or inadequate internal accounting controls relating to Parent and the Parent Subsidiaries, taken as a whole, (ii) no attorney representing Parent or any Parent Subsidiary has made a report to Parent’s chief legal officer, chief executive officer or Board of Directors (or any committee thereof) pursuant to the SEC’s Standards of Professional Conduct for Attorneys (17 CFR Part 205), and (iii) Parent has disclosed to its outside auditors any fraud, whether or not material, of which there is Parent’s Knowledge that involves management or other employees who have a significant role in Parent’s internal control over financial reporting.

Appears in 2 contracts

Sources: Merger Agreement (Independence Realty Trust, Inc.), Merger Agreement (Steadfast Apartment REIT, Inc.)

SEC Documents; Financial Statements; Undisclosed Liabilities. ~~(a) Parent~~ Each of JP and PDC LP has filed all required reports, schedules, ~~forms~~ forms, statements and ~~registration statements~~ other documents with the SEC ~~required~~ since January 1, 1997 through the date hereof (collectively, the "JP SEC Documents"). Schedule 2.6(a) to be the JP Disclosure Letter contains a true, complete and correct list of all JP SEC Documents filed by ~~it pursuant to~~ JP or PDC LP with the SEC under the Securities Exchange Act of 1934, as amended (the "Exchange Act"), between January 1, 1997 and the date of this Agreement. All of the JP SEC Documents (other than preliminary material), as of their respective filing dates, complied in all material respects with all applicable requirements of the Securities Act and the ~~Securities Act Rules, or the~~ Exchange Act ~~and the Exchange Act Rules~~and, in each ~~such case since January 1~~case, 2005 (collectively, and in each case including all annexes and schedules thereto and documents incorporated by reference therein, the “Parent SEC Documents”). As of their respective dates (or if subsequently amended or superseded by a filing prior to the date of this Agreement, on the date of such filing), the Parent SEC Documents complied as to form in all material respects with the requirements of the Securities Act or the Exchange Act, as the case may be, and the rules and regulations ~~of the SEC~~ promulgated thereunder applicable to such ~~Parent~~ JP SEC Documents~~, and none~~ . None of the ~~Parent~~ JP SEC Documents as at the time of ~~such dates~~ filing contained any untrue statement of a material fact or omitted to state a any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading~~. To Parent’s Knowledge~~, ~~as of~~ except to the extent such statements have been modified or superseded by later JP SEC Documents filed and publicly available prior to the date ~~hereof~~of this Agreement. The consolidated financial statements of JP and PDC LP, ~~none of~~ respectively, included in the ~~Parent~~ JP SEC Documents ~~is the subject of ongoing SEC review. (b) Parent is in compliance with, and has complied,~~ complied as to form in all material respects with ~~(i) the~~ applicable ~~provisions of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002~~ accounting requirements and the related rules and regulations promulgated thereunder, and (ii) the applicable listing and corporate governance rules and regulations of NASDAQ. Parent has established and maintains disclosure controls and procedures and internal control over financial reporting (as such terms are defined in paragraphs (e) and (f), respectively, of Rule 13a-15 under the Exchange Act) as required by Rule 13a-15 under the Exchange Act. Parent’s disclosure controls and procedures are reasonably designed to ensure that all material information required to be disclosed by Parent in the reports that it files or furnishes under the Exchange Act is recorded, processed, summarized and reported within the time periods specified in the rules and forms of the SEC, and that all such material information is accumulated and communicated to the management of Parent as appropriate to allow timely decisions regarding required disclosure and to make the certifications required pursuant to Sections 302 and 906 of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act. The management of Parent has completed its assessment of the effectiveness of Parent’s internal control over financial reporting in compliance with the requirements of Section 404 of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act for the year ended December 31, 2006, and such assessment concluded that such controls were effective to provide reasonable assurance regarding the reliability of Parent’s financial reporting and the preparation of Parent’s financial statements for external purposes in accordance with GAAP. Parent has disclosed, based on its assessment of the effectiveness of Parent’s internal control over financial reporting in compliance with the requirements of Section 404 of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act for the year ended December 31, 2006, to Parent’s independent registered accounting firm and the audit committee of the Board of Directors of Parent (A) any significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect Parent’s ability to record, process, summarize and report financial information and (B) any fraud, whether or not material, of which there is Parent’s Knowledge that involves management or other employees who have a significant role in Parent’s internal control over financial reporting for the year ended December 31, 2006. Parent any has made available to the Company a summary of any such disclosures made by management to such accounting firm or audit committee for the year ended December 31, 2006. (c) The consolidated financial statements of Parent included in the Parent SEC Documents (the “Parent SEC Financial Statements”) (i) have been prepared in accordance with GAAP (except as may be otherwise indicated therein or in the notes thereto and except, in the case of unaudited consolidated quarterly statements, as permitted by Form 10-Q of the Exchange Act), applied on a consistent basis during the periods involved, (ii) complied in all material respects with published rules and regulations of the SEC with respect thereto, have been prepared in accordance with generally accepted accounting principles ("GAAP") (except, in the case of unaudited statements, as permitted by the applicable rules and regulations of the SEC) applied on a consistent basis during the periods involved (~~iii~~except as may be indicated in the notes thereto) and fairly ~~present~~ presented in all material ~~respects~~ respects, in accordance with the applicable requirements of GAAP and the applicable rules and regulations of the SEC, the consolidated financial position of ~~Parent~~ (a) in the case of JP, JP and the consolidated JP Subsidiaries taken as a whole, and (b) in the case of PDC LP, PDC LP and its consolidated ~~Parent~~ JP Subsidiaries taken as a whole, in each case, as of the ~~respective~~ dates ~~thereof~~ thereof, and the consolidated ~~statements~~ results of ~~income,~~ operations and cash flows ~~and changes in stockholders’ equity~~ for the ~~respective~~ periods then ended (subject, in the case of unaudited ~~quarterly~~ statements, to normal year-end audit ~~adjustments~~ adjustments). Except as set forth in Schedule 2.6(b) to the JP Disclosure Letter, JP has no Subsidiaries which are not consolidated for accounting purposes. Except for liabilities and obligations set forth in the ~~absence~~ JP SEC Documents or in Schedule 2.6(c) to the JP Disclosure Letter or incurred by JP or any JP Subsidiary in the ordinary course of ~~footnotes). (d) As of March~~ business since December 31, ~~2007~~2001, ~~neither Parent nor~~ none of JP or any ~~of the Parent Subsidiaries had~~ JP Subsidiary has any liabilities or obligations ~~that would have been~~ of any nature (whether accrued, absolute, contingent or otherwise) required by GAAP to be ~~reflected in the~~ set forth on a consolidated balance sheet of ~~Parent and the Parent Subsidiaries as of such date, except (i) for such liabilities and obligations reflected, reserved against~~ JP or ~~otherwise disclosed~~ in the ~~consolidated balance sheet of Parent~~ notes thereto and the Parent Subsidiaries as of such date (including the notes thereto) that is included in the Parent SEC Financial Statements and (ii) for such liabilities and obligations as would not be reasonably expected to havewhich, individually or in the aggregate, would have a ~~Parent~~ JP Material Adverse Effect (it is understood and agreed that the representations and warranties contained in this Section 5.5(d): (x) do not apply to matters described in any of Section 5.4, the other provisions of this Section 5.5, and Sections 5.7, 5.8, 5.9, 5.10, 5.11 and 5.17 (which are addressed exclusively in those Sections) and (y) shall not be deemed breached if such breach relates to a matter which is covered by a representation or warranty of Parent and Merger Sub contained in this Article V (other than this Section 5.5(d)) that contains a “Parent’s Knowledge” qualification)Effect. (e) Since December 31, 2006 to the date of this Agreement, (i) neither Parent nor any Parent Subsidiary nor, to Parent’s Knowledge, any director, officer, auditor, accountant or representative of Parent or any of the Parent Subsidiaries has received any written complaint, allegation, assertion or claim that Parent or any of the Parent Subsidiaries has engaged in improper or illegal accounting or auditing practices or maintains improper or inadequate internal accounting controls relating to Parent and the Parent Subsidiaries, taken as a whole, (ii) no attorney representing Parent or any Parent Subsidiary has made a report to Parent’s chief legal officer, chief executive officer or Board of Directors (or any committee thereof) pursuant to the SEC’s Standards of Professional Conduct for Attorneys (17 CFR Part 205), and (iii) Parent has disclosed to its outside auditors any fraud, whether or not material, of which there is Parent’s Knowledge that involves management or other employees who have a significant role in Parent’s internal control over financial reporting.

Appears in 2 contracts

Sources: Merger Agreement (General Growth Properties Inc), Merger Agreement (Price Development Co Lp)

SEC Documents; Financial Statements; Undisclosed Liabilities. (a) ~~Parent~~ Velodyne has filed or furnished on a timely basis all reports, schedules, ~~forms~~ forms, statements, registration statements, prospectuses and ~~registration statements with the SEC~~ other documents required to be filed or furnished by ~~it pursuant to~~ Velodyne with the SEC under the Securities Act ~~and the Securities Act Rules,~~ or the Exchange Act ~~and the Exchange Act Rules~~since September 29, ~~in each such case since January 1, 2005~~ 2020 (~~collectively, and in each case including all annexes and schedules thereto and documents incorporated by reference therein,~~ the “~~Parent~~ Velodyne SEC Documents”). None of the Subsidiaries of Velodyne is required to make or makes any filings with the SEC. (b) As of ~~their~~ its respective ~~dates (or~~ filing date, and, if ~~subsequently amended or superseded by a filing~~ amended, as of the date of the last amendment prior to the date of this Agreement, ~~on the date of such filing), the Parent~~ each Velodyne SEC ~~Documents~~ Document complied ~~as to form~~ in all material respects with the requirements of the ~~Securities~~ Exchange Act or the ~~Exchange~~ Securities Act, as the case may be, and the rules and regulations of the SEC promulgated thereunder applicable to such ~~Parent~~ Velodyne SEC ~~Documents,~~ Document and ~~none of the Parent SEC Documents as of such dates contained~~ did not contain any untrue statement of a material fact or ~~omitted~~ omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading. (c) The consolidated financial statements of ▇▇▇▇▇▇▇▇ included in the Velodyne SEC Documents (including, in each case, any notes or schedules thereto) (the “Velodyne SEC Financial Statements”), comply as to form in all material respects with applicable accounting requirements and the published rules and regulations of the SEC with respect thereto. ~~To Parent’s Knowledge~~The Velodyne SEC Financial Statements fairly present, in all material respects, the financial condition and the results of operations, cash flows and changes in stockholders’ equity of Velodyne (on a consolidated basis) as of the ~~date hereof~~respective dates of and for the periods referred to in the Velodyne SEC Financial Statements, ~~none~~ and were prepared in accordance with GAAP applied on a consistent basis during the periods involved (except as may be indicated in the notes thereto), subject, in the case of interim Velodyne SEC Financial Statements, to normal year-end adjustments (which are not material in significance or amount) and the ~~Parent SEC Documents is the subject~~ absence of ~~ongoing SEC review~~notes. (bd) ~~Parent~~ Velodyne is in compliance ~~with, and has complied,~~ in all material respects with (i) the applicable provisions of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002 and the related rules and regulations promulgated ~~thereunder,~~ thereunder or under the Exchange Act (the “▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act”) and (ii) the applicable listing and corporate governance rules and regulations of the NASDAQ. (e) To the Knowledge of Velodyne, there are no outstanding or unresolved comments in comment letters received from the SEC staff with respect to any Velodyne SEC Documents and none of the Velodyne SEC Documents is the subject of ongoing SEC review. ~~Parent~~ To the Knowledge of Velodyne, there are no SEC inquiries or investigations, in each case, pending or threatened, regarding any accounting practices of Velodyne. (f) Velodyne has established and maintains disclosure controls and procedures and internal control over financial reporting (as such terms are defined in paragraphs (e) and (f), respectively, of Rule 13a-15 and paragraph (e) of Rule 15d-15 under the Exchange Act) as required by ~~Rule~~ Rules 13a-15 and 15d-15 under the Exchange Act. ~~Parent~~▇▇▇▇▇▇▇▇’s disclosure controls and procedures are ~~reasonably~~ designed to ensure that all ~~material~~ information (both financial and non-financial) required to be disclosed by ~~Parent~~ ▇▇▇▇▇▇▇▇ in the reports that it files or furnishes under the Exchange Act is recorded, processed, summarized and reported within the time periods specified in the rules and forms of the SEC, and that all such ~~material~~ information is accumulated and communicated to ~~the~~ Velodyne’s management ~~of Parent~~ as appropriate to allow timely decisions regarding required disclosure and to make the certifications required pursuant to Sections 302 and 906 of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act. ~~The management~~ Since October 1, 2020, ▇▇▇▇▇▇▇▇ has had no significant deficiencies or material weaknesses in the design or operation of ~~Parent has completed~~ its ~~assessment of the effectiveness of Parent’s~~ internal control over financial reporting ~~in compliance with the requirements of Section 404 of the~~ that would reasonably be expected to adversely affect ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act for the year ended December 31, 2006, and such assessment concluded that such controls were effective to provide reasonable assurance regarding the reliability of Parent’s financial reporting and the preparation of Parent’s financial statements for external purposes in accordance with GAAP. Parent has disclosed, based on its assessment of the effectiveness of Parent’s internal control over financial reporting in compliance with the requirements of Section 404 of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act for the year ended December 31, 2006, to Parent’s independent registered accounting firm and the audit committee of the Board of Directors of Parent (A) any significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect Parent’s ability to record, process, summarize and report financial information and ~~(B)~~ ▇▇▇▇▇▇▇▇ does not have Knowledge of any fraud, whether or not material, ~~of which there is Parent’s Knowledge~~ that involves management or other employees who have a significant role in ~~Parent~~▇▇▇▇▇▇▇▇’s internal control over financial reporting for the year ended December 31, 2006. Parent any has made available to the Company a summary of any such disclosures made by management to such accounting firm or audit committee for the year ended December 31, 2006reporting. (cg) The consolidated financial statements of Parent included in the Parent SEC Documents (the “Parent SEC Financial Statements”) (i) have been prepared in accordance with GAAP (except as may be otherwise indicated therein or in the notes thereto and except, in the case of unaudited consolidated quarterly statements, as permitted by Form 10-Q of the Exchange Act), applied on a consistent basis during the periods involved, (ii) complied in all material respects with published rules and regulations of the SEC with respect thereto, and (iii) fairly present in all material respects the consolidated financial position of Parent Velodyne and its ~~consolidated Parent~~ Subsidiaries as of the respective dates thereof and the consolidated statements of income, cash flows and changes in stockholders’ equity for the respective periods then ended (subject, in the case of unaudited quarterly statements, to normal year-end audit adjustments and the absence of footnotes). (d) As of March 31, 2007, neither Parent nor any of the Parent Subsidiaries had do not have any liabilities or obligations ~~that would have been~~ of any nature (whether absolute or contingent, asserted or unasserted, known or unknown, primary or secondary, direct or indirect, and whether or not accrued or required ~~by GAAP~~ to be reflected in ~~the consolidated balance sheet of Parent and the Parent Subsidiaries as of such date~~Velodyne’s financial statements in accordance with GAAP), except (i) ~~for such liabilities and obligations reflected~~as disclosed, reflected or reserved against ~~or otherwise disclosed~~ in the ~~consolidated~~ most recent unaudited balance sheet ~~of Parent and~~ included in the ~~Parent Subsidiaries as of such date (including~~ Velodyne SEC Financial Statements or the notes thereto~~) that is included in the Parent SEC Financial Statements and~~ , (ii) for ~~such~~ liabilities and obligations ~~as would not be reasonably expected to have~~incurred in the ordinary course of business since the date of the most recent unaudited balance sheet included in the Velodyne SEC Financial Statements, (iii) for liabilities and obligations arising out of or in connection with this Agreement, the Mergers or the Transactions and (iv) for liabilities and obligations that, individually or in the aggregate, have not had, and would not reasonably be expected to have, a ~~Parent~~ Velodyne Material Adverse Effect (it is understood and agreed that the representations and warranties contained in this Section 5.5(d): (x) do not apply to matters described in any of Section 5.4, the other provisions of this Section 5.5, and Sections 5.7, 5.8, 5.9, 5.10, 5.11 and 5.17 (which are addressed exclusively in those Sections) and (y) shall not be deemed breached if such breach relates to a matter which is covered by a representation or warranty of Parent and Merger Sub contained in this Article V (other than this Section 5.5(d)) that contains a “Parent’s Knowledge” qualification)Effect. (eh) ~~Since December 31, 2006 to the date of this Agreement, (i) neither Parent~~ Neither Velodyne nor any ~~Parent Subsidiary nor~~of its Subsidiaries is a party to, or has any commitment to ~~Parent’s Knowledge~~become a party to, any ~~director~~joint venture, ~~officer~~off-balance sheet partnership or any similar Contract (including any Contract or arrangement relating to any transaction or relationship between or among Velodyne and any of its Subsidiaries, ~~auditor~~on the one hand, ~~accountant~~ and any unconsolidated affiliate, including any structured finance, special purpose or ~~representative~~ limited purpose entity or Person, on the other hand, or any “off-balance-sheet arrangements” (as defined in Item 303(a) of ~~Parent~~ Regulation S-K under 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, Velodyne or any of ~~the Parent~~ its Subsidiaries ~~has received any written complaint, allegation, assertion~~ in Velodyne’s or claim that Parent or any of the Parent Subsidiaries has engaged in improper or illegal accounting or auditing practices or maintains improper or inadequate internal accounting controls relating to Parent and the Parent Subsidiaries, taken as a whole, (ii) no attorney representing Parent or any Parent Subsidiary has made a report to Parentsuch Subsidiary’s chief legal officer, chief executive officer or Board of Directors (or any committee thereof) pursuant to the SEC’s Standards of Professional Conduct for Attorneys (17 CFR Part 205), and (iii) Parent has disclosed to its outside auditors any fraud, whether or not material, of which there is Parent’s Knowledge that involves management published financial statements or other ~~employees who have a significant role in Parent’s internal control over financial reporting~~Velodyne SEC Documents.

Appears in 2 contracts

Sources: Merger Agreement (Ouster, Inc.), Merger Agreement (Velodyne Lidar, Inc.)

SEC Documents; Financial Statements; Undisclosed Liabilities. (ai) ~~Parent has~~ Marriott and its subsidiaries have filed or furnished all required registration statements, prospectuses, reports, schedules, ~~forms~~ forms, statements, certifications and ~~registration statements~~ other documents (including exhibits and all other information incorporated therein) with the SEC ~~required to be filed by it pursuant to the Securities Act and the Securities Act Rules, or the Exchange Act and the Exchange Act Rules, in each such case~~ since January 1, ~~2005~~ 2013 (~~collectively, and in each case including all annexes and schedules thereto and documents incorporated by reference therein,~~ the “~~Parent~~ Marriott SEC Documents”). As of their respective dates (or or, if ~~subsequently amended or superseded by a filing prior to the date~~ amended, as of ~~this Agreement, on~~ the date of such ~~filing~~amendment), the ~~Parent~~ Marriott SEC Documents complied ~~as to form~~ in all material respects with the requirements of the Securities ~~Act or~~ Act, the Exchange Act and the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act, as the case may be, and the rules and regulations of the SEC promulgated thereunder applicable to ~~such Parent~~ the Marriott SEC Documents, and none of the ~~Parent~~ Marriott SEC Documents when filed (or, if amended, as of the date of such ~~dates~~ amendment) and at their respective effective times, if applicable, contained any untrue statement of a material fact or omitted 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 were made, not misleading. ~~To Parent’s Knowledge, as~~ As of the date ~~hereof~~of this Agreement, there are no outstanding or unresolved comments received from the SEC with respect to any of the Marriott SEC Documents, and, to the knowledge of Marriott, none of the ~~Parent~~ Marriott SEC Documents is the subject of ~~ongoing~~ any outstanding SEC ~~review~~comment or outstanding SEC investigation. (b) Parent is in compliance with, and has complied, in all material respects with (i) the applicable provisions of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002 and the related rules and regulations promulgated thereunder, and (ii) the applicable listing and corporate governance rules and regulations of NASDAQ. Parent has established and maintains disclosure controls and procedures and internal control over financial reporting (as such terms are defined in paragraphs (e) and (f), respectively, of Rule 13a-15 under the Exchange Act) as required by Rule 13a-15 under the Exchange Act. Parent’s disclosure controls and procedures are reasonably designed to ensure that all material information required to be disclosed by Parent in the reports that it files or furnishes under the Exchange Act is recorded, processed, summarized and reported within the time periods specified in the rules and forms of the SEC, and that all such material information is accumulated and communicated to the management of Parent as appropriate to allow timely decisions regarding required disclosure and to make the certifications required pursuant to Sections 302 and 906 of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act. The management of Parent has completed its assessment of the effectiveness of Parent’s internal control over financial reporting in compliance with the requirements of Section 404 of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act for the year ended December 31, 2006, and such assessment concluded that such controls were effective to provide reasonable assurance regarding the reliability of Parent’s financial reporting and the preparation of Parent’s financial statements for external purposes in accordance with GAAP. Parent has disclosed, based on its assessment of the effectiveness of Parent’s internal control over financial reporting in compliance with the requirements of Section 404 of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act for the year ended December 31, 2006, to Parent’s independent registered accounting firm and the audit committee of the Board of Directors of Parent (A) any significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect Parent’s ability to record, process, summarize and report financial information and (B) any fraud, whether or not material, of which there is Parent’s Knowledge that involves management or other employees who have a significant role in Parent’s internal control over financial reporting for the year ended December 31, 2006. Parent any has made available to the Company a summary of any such disclosures made by management to such accounting firm or audit committee for the year ended December 31, 2006. (c) The consolidated financial statements (including all related notes and schedules) of ~~Parent~~ Marriott and its subsidiaries included in the ~~Parent~~ Marriott SEC Documents (the “~~Parent SEC~~ Marriott Financial Statements”) ~~(i) have been~~ were prepared in all material respects in accordance with GAAP (~~except as may be otherwise indicated therein or in the notes thereto and~~ except, in the case of unaudited ~~consolidated quarterly~~ statements, as permitted by ~~Form 10-Q of~~ the ~~Exchange Act),~~ SEC) applied on a consistent basis during the periods ~~involved,~~ involved (iiexcept as may be indicated in the notes thereto) ~~complied in all material respects with published rules~~ and ~~regulations of the SEC with respect thereto, and (iii)~~ fairly present in all material respects the consolidated financial position of ~~Parent~~ Marriott and its consolidated ~~Parent Subsidiaries~~ subsidiaries as of the ~~respective~~ dates thereof and the consolidated ~~statements~~ results of ~~income,~~ their operations and cash flows ~~and changes in stockholders’ equity~~ for the ~~respective~~ periods then ended (subject, in the case of unaudited ~~quarterly~~ statements, to normal year-end audit adjustments which are not material and to any other adjustments described therein, including the ~~absence of footnotes~~notes thereto). (diii) As Except (A) as reflected or reserved against in Marriott’s consolidated balance sheet as of ~~March 31~~September 30, ~~2007~~2015 (or the notes thereto) as included in the Marriott Filed SEC Documents, (B) for liabilities and obligations incurred in the ordinary course of business consistent with past practice since September 30, 2015 and (C) for liabilities and obligations incurred in connection with or contemplated by this Agreement, neither ~~Parent~~ Marriott nor any of ~~the Parent Subsidiaries had~~ its subsidiaries has any liabilities or obligations of any nature (whether accrued, absolute, contingent or otherwise) that would ~~have been~~ be required by GAAP to be reflected ~~in the~~ on a consolidated balance sheet of ~~Parent~~ Marriott and ~~the Parent Subsidiaries as of such date, except~~ its subsidiaries (~~i) for such liabilities and obligations reflected, reserved against~~ or ~~otherwise disclosed~~ in ~~the consolidated balance sheet of Parent and the Parent Subsidiaries as of such date (including~~ the notes thereto) ~~that is included in the Parent SEC Financial Statements and (ii) for such liabilities and obligations as would not be reasonably expected to have~~that, individually or in the aggregate, would reasonably be expected to have a ~~Parent~~ Material Adverse Effect (it is understood and agreed that the representations and warranties contained in this Section 5.5(d): (x) do not apply to matters described in any of Section 5.4, the other provisions of this Section 5.5, and Sections 5.7, 5.8, 5.9, 5.10, 5.11 and 5.17 (which are addressed exclusively in those Sections) and (y) shall not be deemed breached if such breach relates to a matter which is covered by a representation or warranty of Parent and Merger Sub contained in this Article V (other than this Section 5.5(d)) that contains a “Parent’s Knowledge” qualification)on Marriott. (eiv) ~~Since December 31~~Marriott maintains a system of “internal control over financial reporting” (as defined in Rules 13a-15(f) and 15d-15(f) under the Exchange Act) designed to provide reasonable assurance (A) that transactions are recorded as necessary to permit preparation of financial statements in conformity with GAAP, ~~2006 to the date of this Agreement~~consistently applied, (iB) ~~neither Parent nor any Parent Subsidiary nor, to Parent’s Knowledge, any director, officer, auditor, accountant~~ that transactions are executed only in accordance with the authorization of management and (C) regarding prevention or ~~representative of Parent or any~~ timely detection of the ~~Parent Subsidiaries has received any written complaint~~unauthorized acquisition, ~~allegation~~use or disposition of Marriott’s properties or assets. Since January 1, assertion or claim that Parent or any of the Parent Subsidiaries has engaged in improper or illegal accounting or auditing practices or maintains improper or inadequate internal accounting controls relating to Parent and the Parent Subsidiaries2013, taken as a whole, (ii) no attorney representing Parent or any Parent Subsidiary has made a report to Parent’s chief legal officer, chief executive officer or Board of Directors (or any committee thereof) pursuant to the SEC’s Standards of Professional Conduct for Attorneys (17 CFR Part 205), and (iii) Parent Marriott has disclosed to its ~~outside~~ auditors and the audit committee of Marriott’s Board of Directors any written notification of any (1) “significant deficiency” in the internal control over financial reporting of Marriott, (2) “material weakness” in the internal control over financial reporting of Marriott or (3) fraud, whether or not material, ~~of which there is Parent’s Knowledge~~ that involves management or other employees of Marriott who have a significant role in ~~Parent’s~~ the internal ~~control~~ controls over financial ~~reporting~~reporting of Marriott. Marriott has made available to Starwood all such disclosures made by Marriott since January 1, 2014 to its auditors or the audit committee of Marriott’s Board of Directors to the date of this Agreement.

Appears in 2 contracts

Sources: Agreement and Plan of Merger (Marriott International Inc /Md/), Merger Agreement (Starwood Hotel & Resorts Worldwide, Inc)

SEC Documents; Financial Statements; Undisclosed Liabilities. (a) ~~Parent~~ The Company has timely filed or furnished, as applicable, all reports, schedules, ~~forms~~ forms, statements and ~~registration statements~~ other documents with the SEC required to be filed or furnished, as applicable, by ~~it pursuant to~~ the Company since January 1, 2010 under the Securities Act of 1933, as amended, together with the rules and regulations promulgated thereunder (the “Securities ~~Act Rules, or the Exchange Act~~ Act”) and the Exchange Act ~~Rules~~(such documents, ~~in each such case since January 1, 2005 (collectively,~~ together with any documents and ~~in each case including all annexes and schedules thereto and documents~~ information incorporated therein by reference ~~therein~~and together with any documents filed during such period by the Company with the SEC on a voluntary basis on Current Reports on Form 8-K, the “~~Parent~~ Company SEC Documents”). . (b) As of ~~their~~ its respective ~~dates (or if subsequently amended or superseded by a filing prior to~~ date, each of the ~~date of this Agreement, on the date of such filing), the Parent~~ Company SEC Documents complied as to form in all material respects with the requirements of the Exchange Act, the Securities Act or and the ~~Exchange Act~~▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002 (including the rules and regulations promulgated thereunder, “SOX”), as the case may be, and the rules and regulations of the SEC promulgated thereunder applicable to such ~~Parent~~ Company SEC ~~Documents~~Document, ~~and~~ each as in effect on the date so filed. As of their respective dates (or, if amended prior to the date hereof, as of the date of such amendment), except to the extent revised or superseded by a later filed Company SEC Document prior to the date hereof, none of the ~~Parent~~ Company SEC Documents ~~as of such dates~~ contained any untrue statement of a material fact or omitted to state a any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading~~. To Parent’s Knowledge, as of the date hereof, none of the Parent SEC Documents is the subject of ongoing SEC review~~. (bc) ~~Parent is~~ Each of the financial statements (including the related notes) of the Company as of December 31, 2009, 2010 and 2011 and September 30, 2012 and in ~~compliance with, and has complied,~~ each case for the periods then ended included in the Company SEC Documents (or incorporated therein by reference) complied as to form at the time it was filed in all material respects with ~~(i)~~ the applicable ~~provisions of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002~~ accounting requirements and the ~~related rules and regulations promulgated thereunder, and (ii) the applicable listing and corporate governance~~ published rules and regulations of ~~NASDAQ. Parent~~ the SEC with respect thereto in effect at the time of filing, has been prepared in accordance with generally accepted accounting principles in the United States (“GAAP”) in all material respects (except, in the case of unaudited financial statements, as permitted by the rules and regulations of the SEC) applied on a consistent basis during the periods involved (except as may be indicated in the notes thereto) and fairly presented in all material respects the consolidated financial position of the Company and its consolidated subsidiaries as of the dates thereof and the consolidated results of their operations and cash flows for the periods shown (subject, in the case of unaudited financial statements, to normal year-end audit adjustments, to the absence of notes and to any other adjustments described therein, including in any notes thereto). (d) None of the Company or any Company Subsidiary has any liabilities or obligations of any nature (whether accrued, absolute, known or unknown, contingent or otherwise) except liabilities, obligations, conditions or circumstances (i) to the extent disclosed and provided for in the most recent financial statements included in the Filed Company SEC Documents, (ii) related to the future performance (but not breach) of any Contract in the ordinary course of business, (iii) incurred or arising in the ordinary course of business since the date of the most recent financial statements included in the Filed Company SEC Documents or in connection with the Transactions, (iv) of a subject matter covered by any of the other representations and warranties of the Company set forth in this Agreement (other than the representation and warranty contained in the first sentence of Section 3.08), (v) disclosed in Section 3.06(d) of the Company Disclosure Letter or (vi) as would not reasonably be likely to, individually or in the aggregate, have a Company Material Adverse Effect. (e) The Company has established and ~~maintains disclosure controls and procedures and~~ maintained a system of internal control over financial reporting (as ~~such terms are~~ defined in ~~paragraphs (e) and (f), respectively, of~~ Rule 13a-15 under the Exchange Act~~) as required by Rule 13a-15 under the Exchange Act~~). ~~Parent’s disclosure~~ Such internal controls and procedures are reasonably designed to ensure that all material information required to be disclosed by Parent in the reports that it files or furnishes under the Exchange Act is recorded, processed, summarized and reported within the time periods specified in the rules and forms of the SEC, and that all such material information is accumulated and communicated to the management of Parent as appropriate to allow timely decisions regarding required disclosure and to make the certifications required pursuant to Sections 302 and 906 of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act. The management of Parent has completed its assessment of the effectiveness of Parent’s internal control over financial reporting in compliance with the requirements of Section 404 of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act for the year ended December 31, 2006, and such assessment concluded that such controls were effective to provide reasonable assurance regarding the reliability of ~~Parent~~the Company’s financial reporting and the preparation of ~~Parent~~the Company’s financial statements for external purposes in accordance with GAAP. ~~Parent has disclosed~~Since January 1, ~~based on~~ 2012, the Company’s principal executive officer and its ~~assessment of~~ principal financial officer have disclosed to the ~~effectiveness of Parent~~Company’s internal control over financial reporting in compliance with the requirements of Section 404 of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act for the year ended December 31, 2006, to Parent’s independent registered accounting firm auditors and the audit committee of the Company Board ~~of Directors of Parent~~ (Ai) ~~any~~ all known significant deficiencies ~~and material weaknesses~~ in the design or operation of internal ~~control~~ controls over financial reporting ~~which~~ that are reasonably likely to adversely affect ~~Parent~~in any material respect the Company’s ability to record, process, summarize and report financial information and have identified for the Company’s auditors any material weaknesses in internal controls, and (Bii) any known fraud, whether or not material, ~~of which there is Parent’s Knowledge~~ that involves management or other employees who have a significant role in ~~Parent~~the Company’s internal controls. (f) The Company has established and maintains disclosure controls and procedures (as such term is defined in Rule 13a-15 under the Exchange Act); such disclosure controls and procedures are designed to ensure that material information relating to the Company required to be disclosed in reports the Company files under the Exchange Act is recorded and made known to the individuals responsible for the preparation of the Company’s filings with the SEC and other public disclosure documents. The Company has evaluated the effectiveness of the Company’s disclosure controls and procedures and, to the extent required by applicable Law, presented in any applicable Company SEC Document that is a report on Form 10-K or Form 10-Q or any amendment thereto its conclusions about the effectiveness of the disclosure controls and procedures as of the end of the period covered by such report or amendment based on such evaluation; and, to the extent required by applicable Law, disclosed in such report or amendment any change in the Company’s internal control over financial reporting for the year ended December 31, 2006. Parent any has made available to the Company a summary of any such disclosures made by management to such accounting firm or audit committee for the year ended December 31, 2006. (c) The consolidated financial statements of Parent included in the Parent SEC Documents (the “Parent SEC Financial Statements”) (i) have been prepared in accordance with GAAP (except as may be otherwise indicated therein or in the notes thereto and except, in the case of unaudited consolidated quarterly statements, as permitted by Form 10-Q of the Exchange Act), applied on a consistent basis that occurred during the ~~periods involved~~period covered by such report or amendment that has materially affected, (ii) complied in all material respects with published rules and regulations of the SEC with respect thereto, and (iii) fairly present in all material respects the consolidated financial position of Parent and its consolidated Parent Subsidiaries as of the respective dates thereof and the consolidated statements of income, cash flows and changes in stockholders’ equity for the respective periods then ended (subject, in the case of unaudited quarterly statements, or is reasonably likely to normal year-end audit adjustments and the absence of footnotes). (d) As of March 31, 2007, neither Parent nor any of the Parent Subsidiaries had any liabilities or obligations that would have been required by GAAP to be reflected in the consolidated balance sheet of Parent and the Parent Subsidiaries as of such date, except (i) for such liabilities and obligations reflected, reserved against or otherwise disclosed in the consolidated balance sheet of Parent and the Parent Subsidiaries as of such date (including the notes thereto) that is included in the Parent SEC Financial Statements and (ii) for such liabilities and obligations as would not be reasonably expected to have, individually or in the aggregate, a Parent Material Adverse Effect (it is understood and agreed that the representations and warranties contained in this Section 5.5(d): (x) do not apply to matters described in any of Section 5.4materially affect, the other provisions of this Section 5.5, and Sections 5.7, 5.8, 5.9, 5.10, 5.11 and 5.17 (which are addressed exclusively in those Sections) and (y) shall not be deemed breached if such breach relates to a matter which is covered by a representation or warranty of Parent and Merger Sub contained in this Article V (other than this Section 5.5(d)) that contains a “Parent’s Knowledge” qualification). (e) Since December 31, 2006 to the date of this Agreement, (i) neither Parent nor any Parent Subsidiary nor, to Parent’s Knowledge, any director, officer, auditor, accountant or representative of Parent or any of the Parent Subsidiaries has received any written complaint, allegation, assertion or claim that Parent or any of the Parent Subsidiaries has engaged in improper or illegal accounting or auditing practices or maintains improper or inadequate internal accounting controls relating to Parent and the Parent Subsidiaries, taken as a whole, (ii) no attorney representing Parent or any Parent Subsidiary has made a report to Parent’s chief legal officer, chief executive officer or Board of Directors (or any committee thereof) pursuant to the SEC’s Standards of Professional Conduct for Attorneys (17 CFR Part 205), and (iii) Parent has disclosed to its outside auditors any fraud, whether or not material, of which there is Parent’s Knowledge that involves management or other employees who have a significant role in ParentCompany’s internal control over financial reporting. (g) Each of the principal executive officer of the Company and the principal financial officer of the Company (or each former principal executive officer of the Company and each former principal financial officer of the Company, as applicable) has made all certifications required by Rule 13a-14 or 15d-14 under the Exchange Act and Sections 302 and 906 of SOX with respect to the Company SEC Documents, and the statements contained in such certifications are true and accurate. For purposes of this Agreement, “principal executive officer” and “principal financial officer” shall have the meanings given to such terms in SOX. Neither the Company nor any of its Subsidiaries has outstanding, or has arranged any outstanding, “extensions of credit” to directors or executive officers in violation of SOX.

Appears in 2 contracts

Sources: Merger Agreement (Arbitron Inc), Agreement and Plan of Merger (Nielsen Holdings N.V.)

SEC Documents; Financial Statements; Undisclosed Liabilities. (a) ~~Parent~~ The Company has filed all material reports, schedules, ~~forms~~ forms, statements and ~~registration statements~~ other documents with the SEC required to be filed by it the Company pursuant to the Securities Act ~~and the Securities Act Rules,~~ or the Exchange Act ~~and the Exchange Act Rules~~since December 28, ~~in each such case since January 1, 2005~~ 2014 (~~collectively, and in each case including all annexes and schedules thereto and documents incorporated by reference therein,~~ the “~~Parent~~ SEC Documents”). As of their respective effective dates (~~or if subsequently amended or superseded by a filing prior~~ in the case of SEC Documents that are registration statements filed pursuant to the ~~date~~ requirements of ~~this Agreement, on~~ the ~~date~~ Securities Act) and as of ~~such filing~~their respective dates of filing (in the case of all other SEC Documents), the ~~Parent~~ SEC Documents complied as to form in all material respects with the requirements of the Securities Act or the Exchange Act, as the case may be, and the rules and regulations of the SEC promulgated thereunder applicable ~~to such Parent SEC Documents~~thereto, and except to the extent amended or superseded by a subsequent filing with the SEC prior to the date of this Agreement, as of such respective dates, none of the ~~Parent~~ SEC Documents ~~as of such dates~~ contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading. None of the Company’s Subsidiaries is subject to the periodic reporting requirements of the Exchange Act. As of the date hereof, there are no outstanding or unresolved comments in comment letters from the SEC staff with respect to any of the SEC Documents. To ~~Parent’s Knowledge~~the Knowledge of the Company, as of the date hereof, none of the ~~Parent~~ SEC Documents is the subject of ongoing SEC ~~review~~review or outstanding SEC investigation. (b) ~~Parent is~~ Each of the audited consolidated financial statements and the unaudited quarterly financial statements (including, in ~~compliance with~~each case, ~~and has complied,~~ the notes thereto) of the Company included in the SEC Documents when filed complied as to form in all material respects with ~~(i)~~ the applicable provisions of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002 and the related rules and regulations promulgated thereunder, and (ii) the applicable listing and corporate governance rules and regulations of NASDAQ. Parent has established and maintains disclosure controls and procedures and internal control over financial reporting (as such terms are defined in paragraphs (e) and (f), respectively, of Rule 13a-15 under the Exchange Act) as required by Rule 13a-15 under the Exchange Act. Parent’s disclosure controls and procedures are reasonably designed to ensure that all material information required to be disclosed by Parent in the reports that it files or furnishes under the Exchange Act is recorded, processed, summarized and reported within the time periods specified in the rules and forms of the SEC, and that all such material information is accumulated and communicated to the management of Parent as appropriate to allow timely decisions regarding required disclosure and to make the certifications required pursuant to Sections 302 and 906 of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act. The management of Parent has completed its assessment of the effectiveness of Parent’s internal control over financial reporting in compliance with the requirements of Section 404 of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act for the year ended December 31, 2006, and such assessment concluded that such controls were effective to provide reasonable assurance regarding the reliability of Parent’s financial reporting and the preparation of Parent’s financial statements for external purposes in accordance with GAAP. Parent has disclosed, based on its assessment of the effectiveness of Parent’s internal control over financial reporting in compliance with the requirements of Section 404 of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act for the year ended December 31, 2006, to Parent’s independent registered accounting firm and the audit committee of the Board of Directors of Parent (A) any significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect Parent’s ability to record, process, summarize and report financial information and (B) any fraud, whether or not material, of which there is Parent’s Knowledge that involves management or other employees who have a significant role in Parent’s internal control over financial reporting for the year ended December 31, 2006. Parent any has made available to the Company a summary of any such disclosures made by management to such accounting firm or audit committee for the year ended December 31, 2006. (c) The consolidated financial statements of Parent included in the Parent SEC Documents (the “Parent SEC Financial Statements”) (i) have been prepared in accordance with GAAP (except as may be otherwise indicated therein or in the notes thereto and except, in the case of unaudited consolidated quarterly statements, as permitted by Form 10-Q of the Exchange Act), applied on a consistent basis during the periods involved, (ii) complied in all material respects with published rules and regulations of the SEC with respect thereto, have been prepared in all material respects in accordance with generally accepted accounting principles (“GAAP”) (except, in the case of unaudited quarterly statements, to the extent permitted by Form 10-Q of the SEC or other rules and regulations of the SEC) applied on a consistent basis during the periods involved (~~iii~~except as may be indicated in the notes thereto) and fairly present in all material respects the consolidated financial position of ~~Parent~~ the Company and its consolidated ~~Parent~~ Subsidiaries as of the ~~respective~~ dates thereof and the consolidated ~~statements~~ results of ~~income,~~ their operations and cash flows ~~and changes in stockholders’ equity~~ for the ~~respective~~ periods then ended (subject, in the case of unaudited quarterly statements, to normal year-end ~~audit~~ adjustments and the absence of footnotes). (dc) As Except for matters reflected or reserved against in the most recent consolidated balance sheet of ~~March 31, 2007~~the Company (or the notes thereto) included in the Filed SEC Documents, neither ~~Parent~~ the Company nor any of ~~the Parent~~ its Subsidiaries ~~had~~ has any liabilities or obligations (whether absolute, accrued, contingent, fixed or otherwise) of any nature that would ~~have been~~ be required ~~by GAAP~~ under GAAP, as in effect on the date of this Agreement, to be reflected ~~in the~~ on a consolidated balance sheet of ~~Parent and~~ the Parent Subsidiaries as of such date, except (i) for such liabilities and obligations reflected, reserved against or otherwise disclosed in the consolidated balance sheet of Parent and the Parent Subsidiaries as of such date Company (including the notes thereto~~) that is included in the Parent SEC Financial Statements and (ii) for such~~ ), except liabilities and obligations as that (A) were incurred since the date of such balance sheet in the Ordinary Course of Business, (B) are incurred in connection with the transactions contemplated by this Agreement, or (C) would ~~not be reasonably expected to have~~not, individually or in the aggregate, reasonably be expected to have a ~~Parent~~ Material Adverse Effect (it is understood and agreed that the representations and warranties contained in this Section 5.5(d): (x) do not apply to matters described in any of Section 5.4, the other provisions of this Section 5.5, and Sections 5.7, 5.8, 5.9, 5.10, 5.11 and 5.17 (which are addressed exclusively in those Sections) and (y) shall not be deemed breached if such breach relates to a matter which is covered by a representation or warranty of Parent and Merger Sub contained in this Article V (other than this Section 5.5(d)) that contains a “Parent’s Knowledge” qualification)Effect. (e) Since December 31, 2006 to the date of this Agreement, (i) neither Parent nor any Parent Subsidiary nor, to Parent’s Knowledge, any director, officer, auditor, accountant or representative of Parent or any of the Parent Subsidiaries has received any written complaint, allegation, assertion or claim that Parent or any of the Parent Subsidiaries has engaged in improper or illegal accounting or auditing practices or maintains improper or inadequate internal accounting controls relating to Parent and the Parent Subsidiaries, taken as a whole, (ii) no attorney representing Parent or any Parent Subsidiary has made a report to Parent’s chief legal officer, chief executive officer or Board of Directors (or any committee thereof) pursuant to the SEC’s Standards of Professional Conduct for Attorneys (17 CFR Part 205), and (iii) Parent has disclosed to its outside auditors any fraud, whether or not material, of which there is Parent’s Knowledge that involves management or other employees who have a significant role in Parent’s internal control over financial reporting.

Appears in 2 contracts

Sources: Merger Agreement (Popeyes Louisiana Kitchen, Inc.), Merger Agreement (Restaurant Brands International Inc.)

SEC Documents; Financial Statements; Undisclosed Liabilities. (a) ~~Parent~~ Cardinal has timely filed or furnished all reports, schedules, ~~forms~~ forms, statements, registration statements, prospectuses and ~~registration statements with the SEC~~ other documents required to be filed or furnished by ~~it pursuant to~~ Cardinal with the SEC under the Securities Act ~~and the Securities Act Rules,~~ or the Exchange Act ~~and the Exchange Act Rules, in each such case~~ since January 1, ~~2005~~ 2015 (~~collectively, and in each case including all annexes and schedules thereto and documents incorporated by reference therein,~~ the “~~Parent~~ Cardinal SEC Documents”). None of the Subsidiaries of Cardinal is required to make or makes any filings with the SEC. (b) As of ~~their~~ its respective ~~dates (or~~ filing date, and, if ~~subsequently amended or superseded by a filing~~ amended, as of the date of the last amendment prior to the date of this Agreement, ~~on the date of such filing), the Parent~~ each Cardinal SEC ~~Documents~~ Document complied ~~as to form~~ in all material respects with the requirements of the ~~Securities~~ Exchange Act or the ~~Exchange~~ Securities Act, as the case may be, and the rules and regulations of the SEC promulgated thereunder applicable to such ~~Parent~~ Cardinal SEC ~~Documents, and none of the Parent SEC Documents as of such dates contained~~ Document did not contain any untrue statement of a material fact or ~~omitted~~ omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading~~. To Parent~~. (c) The consolidated financial statements of Cardinal included in the Cardinal SEC Documents (including, in each case, any notes or schedules thereto) and all related compilations, reviews and other reports issued by Cardinal’s ~~Knowledge~~accountants with respect thereto (the “Cardinal SEC Financial Statements”), as of their respective dates of filing with the SEC, comply as to form in all material respects with applicable accounting requirements and the published rules and regulations of the SEC with respect thereto. The Cardinal SEC Financial Statements fairly present, in all material respects, the financial condition and the results of operations, cash flows and changes in shareholders’ equity of Cardinal (on a consolidated basis) as of the respective dates of and for the periods referred to in the Cardinal SEC Financial Statements, and were prepared in accordance with GAAP applied on a consistent basis during the periods involved (except as may be indicated in the notes thereto), subject, in the case of interim Cardinal SEC Financial Statements, to normal year-end adjustments (which are not material in significance or amount) and the absence of notes. The books and records of Cardinal and its Subsidiaries are accurate and complete, in all material respects, have been maintained in accordance with sound business practices and accurately present and reflect in all material respects all of the transactions and actions therein described and the Cardinal SEC Financial Statements have been prepared, in all material respects, in accordance with such books and records. No financial statements of any Person other than Cardinal and its Subsidiaries are required by GAAP to be included in the consolidated financial statements of Cardinal. Except as required by GAAP, Cardinal has not, between June 30, 2017 and the date ~~hereof~~of this Agreement, ~~none of the Parent SEC Documents is the subject of ongoing SEC review~~made or adopted any material change in its accounting methods, practices or policies in effect on June 30, 2017. (bd) ~~Parent~~ Cardinal is in compliance ~~with, and has complied,~~ in all material respects with (i) the applicable provisions of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act ~~of 2002 and the related rules and regulations promulgated thereunder,~~ and (ii) the applicable listing and corporate governance rules and regulations of the NASDAQ. (e) Cardinal has made available to Sarg true and complete copies of all written comment letters from the staff of the SEC received since January 1, 2015 relating to the Cardinal SEC Documents and all written responses of Cardinal thereto other than with respect to requests for confidential treatment or which are otherwise publicly available on the SEC’s ▇▇▇▇▇ system. ~~Parent~~ To the Knowledge of Cardinal, there are no outstanding or unresolved comments in comment letters received from the SEC staff with respect to any Cardinal SEC Documents and none of the Cardinal SEC Documents (other than confidential treatment requests) is the subject of ongoing SEC review. There are no internal investigations, any SEC inquiries or investigations or other governmental inquiries or investigations, to the Knowledge of Cardinal, pending or threatened, in each case regarding any accounting practices of Cardinal. (f) Cardinal has established and maintains disclosure controls and procedures and internal control over financial reporting (as such terms are defined in paragraphs (e) and (f), respectively, of Rule 13a-15 and paragraph (e) of Rule 15d-15 under the Exchange Act) as required by ~~Rule~~ Rules 13a-15 and 15d-15 under the Exchange Act. ~~Parent~~Cardinal’s disclosure controls and procedures are ~~reasonably~~ designed to ensure that all ~~material~~ information (both financial and non-financial) required to be disclosed by ~~Parent~~ Cardinal in the reports that it files or furnishes under the Exchange Act is recorded, processed, summarized and reported within the time periods specified in the rules and forms of the SEC, and that all such ~~material~~ information is accumulated and communicated to ~~the~~ Cardinal’s management ~~of Parent~~ as appropriate to allow timely decisions regarding required disclosure and to make the certifications required pursuant to Sections 302 and 906 of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act. ~~The~~ Cardinal’s management ~~of Parent~~ has completed ~~its~~ an assessment of the effectiveness of ~~Parent~~Cardinal’s disclosure controls and procedures and, to the extent required by applicable Law, presented in any applicable Cardinal SEC Document that is a report on Form 10-K or Form 10-Q, or any amendment thereto, its conclusions about the effectiveness of the disclosure controls and procedures as of the end of the period covered by such report or amendment based on such evaluation. Based on Cardinal’s management’s most recently completed evaluation of Cardinal’s internal control over financial reporting ~~in compliance with~~ prior to the ~~requirements of Section 404 of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act for the year ended December 31~~date hereof, 2006, and such assessment concluded that such controls were effective to provide reasonable assurance regarding the reliability of Parent’s financial reporting and the preparation of Parent’s financial statements for external purposes in accordance with GAAP. Parent has disclosed, based on its assessment of the effectiveness of Parent’s internal control over financial reporting in compliance with the requirements of Section 404 of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act for the year ended December 31, 2006, to Parent’s independent registered accounting firm and the audit committee of the Board of Directors of Parent (Ai) ~~any~~ Cardinal had no significant deficiencies ~~and~~ or material weaknesses in the design or operation of its internal control over financial reporting ~~which are~~ that would reasonably ~~likely~~ be expected to adversely affect ~~Parent~~Cardinal’s ability to record, process, summarize and report financial information and (Bii) Cardinal does not have Knowledge of any fraud, whether or not material, ~~of which there is Parent’s Knowledge~~ that involves management or other employees who have a significant role in ~~Parent~~Cardinal’s internal control over financial ~~reporting for~~ reporting. Since January 1, 2015, none of Cardinal, Cardinal’s auditors, the ~~year ended December 31, 2006. Parent~~ Cardinal Board or the audit committee of the Cardinal Board has received any ~~has made available~~ written (or to the ~~Company a summary~~ Knowledge of Cardinal, oral) complaint, allegation, assertion or claim regarding the accounting or auditing practices, procedures, methodologies or methods of Cardinal or its Subsidiaries, or their respective internal accounting controls or any ~~such disclosures made by management to such accounting firm or audit committee for~~ other matter set forth in the ~~year ended December 31, 2006~~immediately preceding sentence. (cg) The consolidated financial statements of Parent included in the Parent SEC Documents (the “Parent SEC Financial Statements”) (i) have been prepared in accordance with GAAP (except as may be otherwise indicated therein or in the notes thereto and except, in the case of unaudited consolidated quarterly statements, as permitted by Form 10-Q of the Exchange Act), applied on a consistent basis during the periods involved, (ii) complied in all material respects with published rules and regulations of the SEC with respect thereto, and (iii) fairly present in all material respects the consolidated financial position of Parent Cardinal and its ~~consolidated Parent~~ Subsidiaries as of the respective dates thereof and the consolidated statements of income, cash flows and changes in stockholders’ equity for the respective periods then ended (subject, in the case of unaudited quarterly statements, to normal year-end audit adjustments and the absence of footnotes). (d) As of March 31, 2007, neither Parent nor any of the Parent Subsidiaries had do not have any liabilities or obligations ~~that would have been~~ of any nature (whether absolute or contingent, asserted or unasserted, known or unknown, primary or secondary, direct or indirect, and whether or not accrued or required ~~by GAAP~~ to be reflected in ~~the consolidated balance sheet of Parent and the Parent Subsidiaries as of such date~~Cardinal’s financial statements in accordance with GAAP), except (i) ~~for such liabilities and obligations reflected~~as disclosed, reflected or reserved against ~~or otherwise disclosed~~ in the ~~consolidated~~ most recent audited balance sheet ~~of Parent and~~ included in the ~~Parent Subsidiaries as of such date (including~~ Cardinal SEC Financial Statements or the notes thereto~~) that is included in the Parent SEC Financial Statements and~~ , (ii) for ~~such~~ liabilities and obligations ~~as would not be reasonably expected to have~~incurred in the ordinary course of business since the date of the most recent audited balance sheet included in the Cardinal SEC Financial Statements, (iii) for liabilities and obligations arising out of or in connection with this Agreement, the Merger or the other Transactions and (iv) for liabilities and obligations that, individually or in the aggregate, have not had, and would not reasonably be expected to have, a ~~Parent~~ Cardinal Material Adverse Effect (it is understood and agreed that the representations and warranties contained in this Section 5.5(d): (x) do not apply to matters described in any of Section 5.4, the other provisions of this Section 5.5, and Sections 5.7, 5.8, 5.9, 5.10, 5.11 and 5.17 (which are addressed exclusively in those Sections) and (y) shall not be deemed breached if such breach relates to a matter which is covered by a representation or warranty of Parent and Merger Sub contained in this Article V (other than this Section 5.5(d)) that contains a “Parent’s Knowledge” qualification)Effect. (e) Since December 31, 2006 to the date of this Agreement, (i) neither Parent nor any Parent Subsidiary nor, to Parent’s Knowledge, any director, officer, auditor, accountant or representative of Parent or any of the Parent Subsidiaries has received any written complaint, allegation, assertion or claim that Parent or any of the Parent Subsidiaries has engaged in improper or illegal accounting or auditing practices or maintains improper or inadequate internal accounting controls relating to Parent and the Parent Subsidiaries, taken as a whole, (ii) no attorney representing Parent or any Parent Subsidiary has made a report to Parent’s chief legal officer, chief executive officer or Board of Directors (or any committee thereof) pursuant to the SEC’s Standards of Professional Conduct for Attorneys (17 CFR Part 205), and (iii) Parent has disclosed to its outside auditors any fraud, whether or not material, of which there is Parent’s Knowledge that involves management or other employees who have a significant role in Parent’s internal control over financial reporting.

Appears in 2 contracts

Sources: Merger Agreement (Strayer Education Inc), Merger Agreement (Capella Education Co)

SEC Documents; Financial Statements; Undisclosed Liabilities. (ai) ~~Parent~~ Rubicon Project has filed or furnished all required registration statements, prospectuses, reports, schedules, ~~forms~~ forms, statements, certifications and ~~registration statements~~ other documents (including exhibits and all other information incorporated therein, regardless of when such exhibits and other information were filed) with the SEC ~~required to be filed by it pursuant to the Securities Act and the Securities Act Rules, or the Exchange Act and the Exchange Act Rules, in each such case~~ since January 1, ~~2005~~ 2017 (~~collectively, and in each case including all annexes and schedules thereto and documents incorporated by reference therein,~~ the “~~Parent~~ Rubicon Project SEC Documents”). As of their respective ~~dates (or if subsequently amended or superseded by a filing prior to the date of this Agreement, on the date of such filing)~~dates, the ~~Parent~~ Rubicon Project SEC Documents complied ~~as to form~~ in all material respects with the requirements of the Securities ~~Act or~~ Act, the Exchange Act and the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act, as the case may be, and the rules and regulations of the SEC promulgated thereunder applicable to ~~such Parent~~ the Rubicon Project SEC Documents, and none of the ~~Parent~~ Rubicon Project SEC Documents ~~as of such dates~~ when filed and at their respective effective times, if applicable, contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading. ~~To Parent’s Knowledge, as~~ As of the date ~~hereof~~of this Agreement, there are no outstanding or unresolved comments received from the SEC with respect to any of the Rubicon Project SEC Documents, and, to the Knowledge of Rubicon Project, none of the ~~Parent~~ Rubicon Project SEC Documents is the subject of ~~ongoing~~ any outstanding SEC ~~review~~comment or investigation. No Subsidiary of Rubicon Project is, or has since January 1, 2017 been, required to file reports with the SEC pursuant to the requirements of the Exchange Act. (bii) ~~Parent is~~ The consolidated financial statements (including all related notes and schedules) of Rubicon Project and its Subsidiaries included in ~~compliance with~~the Rubicon Project SEC Documents (the “Rubicon Project Financial Statements”) were prepared in accordance with GAAP (except, in the case of unaudited statements, as permitted by the SEC) applied on a consistent basis during the periods involved (except as may be indicated in the notes thereto) and ~~has complied,~~ fairly present in all material respects ~~with (i)~~ the ~~applicable provisions~~ consolidated financial position of Rubicon Project and its consolidated Subsidiaries as of the ~~▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002~~ dates thereof and the ~~related rules~~ consolidated results of their operations and ~~regulations promulgated thereunder~~cash flows for the periods then ended (subject, in the case of unaudited statements, to normal year-end audit adjustments which are not material and to any other adjustments described therein, including the notes thereto). Since December 31, 2016, no independent public accounting firm of Telaria has resigned (or informed Telaria that it intends to resign) or been dismissed as independent public accountants of Telaria as a result of or in connection with any disagreements with Telaria on a matter of accounting principles or practices, financial statement disclosure or auditing scope or procedure. (iii) Except (A) as reflected or reserved against in Rubicon Project’s unaudited balance sheet as of September 30, 2019 (or the notes thereto) included in Rubicon Project’s Quarterly Report on Form 10-Q filed with the SEC on November 6, 2019, (B) for liabilities and obligations incurred in the ordinary course of business consistent with past practice since September 30, 2019 and (iiC) for liabilities and obligations incurred in connection with or contemplated by this Agreement, neither Rubicon Project nor any of its Subsidiaries has any liabilities or obligations of any nature (whether accrued, absolute, contingent or otherwise) that would be required by GAAP to be reflected on a consolidated balance sheet of Rubicon Project and its Subsidiaries (or in the ~~applicable listing~~ notes thereto) that, individually and ~~corporate governance rules and regulations~~ in the aggregate, would reasonably be expected to have a Material Adverse Effect on Rubicon Project. (iv) Rubicon Project maintains a system of ~~NASDAQ. Parent has established and maintains disclosure controls and procedures and~~ “internal control over financial ~~reporting~~ reporting” (as ~~such terms are~~ defined in ~~paragraphs (e~~Rules 13a-15(f) and ~~(f), respectively,~~ 15d-15(f) of ~~Rule 13a-15 under~~ the Exchange Act) sufficient to provide reasonable assurance (A) that transactions are recorded as ~~required by Rule 13a-15 under~~ necessary to permit preparation of financial statements in conformity with GAAP, consistently applied, (B) that transactions are executed only in accordance with the authorization of management and (C) regarding prevention or timely detection of the unauthorized acquisition, use or disposition of Rubicon Project’s properties or assets. Since January 1, 2017, none of Rubicon Project, Rubicon Project’s independent accountants, the Board of Directors of Rubicon Project or its audit committee has received any oral or written notification of any (1) “significant deficiency” in the internal controls over financial reporting of Rubicon Project, (2) “material weakness” in the internal controls over financial reporting of Rubicon Project or (3) fraud, whether or not material, that involves management or other employees of Rubicon Project who have a significant role in the internal controls over financial reporting of Rubicon Project. (v) The “disclosure controls and procedures” (as defined in Rules 13a-15(e) and 15d-15(e) of the Exchange Act~~. Parent’s disclosure controls and procedures~~ ) utilized by Rubicon Project are reasonably designed to ensure that all ~~material~~ information (both financial and non-financial) required to be disclosed by ~~Parent~~ Rubicon Project in the reports that it files or ~~furnishes~~ submits under the Exchange Act is recorded, processed, summarized and reported within the time periods specified in the rules and forms of the ~~SEC,~~ SEC and that all such ~~material~~ information required to be disclosed is accumulated and communicated to the management of ~~Parent~~ Rubicon Project, as ~~appropriate~~ appropriate, to allow timely decisions regarding required disclosure and to enable the chief executive officer and chief financial officer of Rubicon Project to make the certifications required ~~pursuant to Sections 302 and 906 of~~ under the ~~▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act. The management of Parent has completed its assessment of the effectiveness of Parent’s internal control over financial reporting in compliance~~ Exchange Act with the requirements of Section 404 of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act for the year ended December 31, 2006, and such assessment concluded that such controls were effective to provide reasonable assurance regarding the reliability of Parent’s financial reporting and the preparation of Parent’s financial statements for external purposes in accordance with GAAP. Parent has disclosed, based on its assessment of the effectiveness of Parent’s internal control over financial reporting in compliance with the requirements of Section 404 of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act for the year ended December 31, 2006, to Parent’s independent registered accounting firm and the audit committee of the Board of Directors of Parent (A) any significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect Parent’s ability to record, process, summarize and report financial information and (B) any fraud, whether or not material, of which there is Parent’s Knowledge that involves management or other employees who have a significant role in Parent’s internal control over financial reporting for the year ended December 31, 2006. Parent any has made available to the Company a summary of any such disclosures made by management respect to such ~~accounting firm or audit committee for the year ended December 31, 2006~~reports. (cvi) ~~The consolidated financial statements~~ Neither Rubicon Project nor any of ~~Parent included~~ its Subsidiaries is a party to, or has any commitment to become a party to, any joint venture, off-balance sheet partnership or any similar contract (including any contract or arrangement relating to any transaction or relationship between or among Rubicon Project and any of its Subsidiaries, on the one hand, and any unconsolidated Affiliate, including any structured finance, special purpose or limited purpose entity or Person, on the other hand, or any “off-balance sheet arrangements” (as defined in ~~the Parent SEC Documents (the “Parent SEC Financial Statements”~~Item 303(a) ~~(i) have been prepared in accordance with GAAP (except as may be otherwise indicated therein or in the notes thereto and except, in the case~~ of ~~unaudited consolidated quarterly statements, as permitted by Form 10~~Regulation S-~~Q of~~ K under the Exchange Act)), ~~applied on a consistent basis during~~ where the periods involved, (ii) complied in all material respects with published rules and regulations of the SEC with respect thereto, and (iii) fairly present in all material respects the consolidated financial position of Parent and its consolidated Parent Subsidiaries as of the respective dates thereof and the consolidated statements of income, cash flows and changes in stockholders’ equity for the respective periods then ended (subject, in the case of unaudited quarterly statements, to normal year-end audit adjustments and the absence of footnotes). (d) As of March 31, 2007, neither Parent nor any of the Parent Subsidiaries had any liabilities purpose or ~~obligations that would have been required by GAAP to be reflected in the consolidated balance sheet of Parent and the Parent Subsidiaries as~~ intended effect of such ~~date~~contract is to avoid disclosure of any material transaction involving, ~~except (i) for such~~ or material liabilities ~~and obligations reflected~~of, reserved against or otherwise disclosed in the consolidated balance sheet of Parent and the Parent Subsidiaries as of such date (including the notes thereto) that is included in the Parent SEC Financial Statements and (ii) for such liabilities and obligations as would not be reasonably expected to have, individually or in the aggregate, a Parent Material Adverse Effect (it is understood and agreed that the representations and warranties contained in this Section 5.5(d): (x) do not apply to matters described in any of Section 5.4, the other provisions of this Section 5.5, and Sections 5.7, 5.8, 5.9, 5.10, 5.11 and 5.17 (which are addressed exclusively in those Sections) and (y) shall not be deemed breached if such breach relates to a matter which is covered by a representation or warranty of Parent and Merger Sub contained in this Article V (other than this Section 5.5(d)) that contains a “Parent’s Knowledge” qualification). (e) Since December 31, 2006 to the date of this Agreement, (i) neither Parent nor any Parent Subsidiary nor, to Parent’s Knowledge, any director, officer, auditor, accountant or representative of Parent Rubicon Project or any of ~~the Parent~~ its Subsidiaries ~~has received any written complaint, allegation, assertion~~ in Rubicon Project’s or claim that Parent or any of the Parent Subsidiaries has engaged in improper or illegal accounting or auditing practices or maintains improper or inadequate internal accounting controls relating to Parent and the Parent Subsidiaries, taken as a whole, (ii) no attorney representing Parent or any Parent Subsidiary has made a report to Parentsuch Subsidiary’s chief legal officer, chief executive officer or Board of Directors (or any committee thereof) pursuant to the SEC’s Standards of Professional Conduct for Attorneys (17 CFR Part 205), and (iii) Parent has disclosed to its outside auditors any fraud, whether or not material, of which there is Parent’s Knowledge that involves management published financial statements or other ~~employees who have a significant role in Parent’s internal control over financial reporting~~Rubicon Project SEC Documents.

Appears in 2 contracts

Sources: Merger Agreement (Rubicon Project, Inc.), Merger Agreement (Telaria, Inc.)

SEC Documents; Financial Statements; Undisclosed Liabilities. (a) ~~Parent~~ Allied has timely filed ~~all reports, schedules, forms and registration statements~~ with ~~the SEC required to be filed by it pursuant~~ or furnished to the ~~Securities Act and the Securities Act Rules~~SEC, ~~or the Exchange Act and the Exchange Act Rules~~as applicable, ~~in each such case since January 1, 2005 (collectively, and in each case including~~ all ~~annexes and schedules thereto and documents incorporated by reference therein, the “Parent~~ Allied SEC Documents”). As of ~~their~~ its respective ~~dates~~ date, each Allied SEC Document (including any financial statements or ~~if subsequently amended or superseded by a filing prior to the date of this Agreement, on the date of such filing), the Parent SEC Documents~~ schedules included therein) complied ~~as to form~~ in all material respects with the applicable requirements of the Securities Act or and the Exchange Act, as the case may be, and the rules and regulations of the SEC promulgated thereunder applicable to such ~~Parent~~ Allied SEC ~~Documents~~Document, and ~~none of the Parent SEC Documents as of such dates contained~~ did not contain any untrue statement of a material fact or ~~omitted~~ omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading. ~~To Parent’s Knowledge, as of~~ Except to the ~~date hereof~~extent that information contained in any Allied SEC Document has been revised or superseded by a later filed Allied SEC Document, none of the ~~Parent~~ Allied SEC Documents is contains any untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary in order to make the ~~subject~~ statements therein, in light of ~~ongoing SEC review~~the circumstances under which they were made, not misleading. (b) ~~Parent is in compliance with~~As of their respective dates, ~~and has complied,~~ the Allied Financial Statements complied as to form in all material respects with ~~(i) the~~ applicable ~~provisions of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002~~ accounting requirements and the ~~related rules and regulations promulgated thereunder, and (ii) the applicable listing and corporate governance~~ published rules and regulations of ~~NASDAQ. Parent has established and maintains disclosure controls and procedures and internal control over financial reporting (as such terms are defined in paragraphs (e) and (f)~~the SEC with respect thereto, respectively, of Rule 13a-15 under the Exchange Act) as required by Rule 13a-15 under the Exchange Act. Parent’s disclosure controls and procedures are reasonably designed to ensure that all material information required to be disclosed by Parent in the reports that it files or furnishes under the Exchange Act is recorded, processed, summarized and reported within the time periods specified in the rules and forms of the SEC, and that all such material information is accumulated and communicated to the management of Parent as appropriate to allow timely decisions regarding required disclosure and to make the certifications required pursuant to Sections 302 and 906 of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act. The management of Parent has completed its assessment of the effectiveness of Parent’s internal control over financial reporting in compliance with the requirements of Section 404 of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act for the year ended December 31, 2006, and such assessment concluded that such controls were effective to provide reasonable assurance regarding the reliability of Parent’s financial reporting and the preparation of Parent’s financial statements for external purposes in accordance with GAAP. Parent has disclosed, based on its assessment of the effectiveness of Parent’s internal control over financial reporting in compliance with the requirements of Section 404 of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act for the year ended December 31, 2006, to Parent’s independent registered accounting firm and the audit committee of the Board of Directors of Parent (A) any significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect Parent’s ability to record, process, summarize and report financial information and (B) any fraud, whether or not material, of which there is Parent’s Knowledge that involves management or other employees who have a significant role in Parent’s internal control over financial reporting for the year ended December 31, 2006. Parent any has made available to the Company a summary of any such disclosures made by management to such accounting firm or audit committee for the year ended December 31, 2006. (c) The consolidated financial statements of Parent included in the Parent SEC Documents (the “Parent SEC Financial Statements”) (i) have having been prepared in accordance with GAAP (except as may be ~~otherwise~~ indicated ~~therein or~~ in the notes thereto ~~and except~~and, in the case of unaudited ~~consolidated quarterly~~ statements, as permitted by ~~Form 10-Q of the Exchange Act),~~ Law) applied on a consistent basis during the periods ~~involved~~involved (except as may be indicated in the notes thereto), ~~(ii) complied~~ and fairly presented, in all material ~~respects with published rules and regulations of the SEC with respect thereto~~respects, ~~and (iii) fairly present in all material respects~~ the consolidated financial position of ~~Parent~~ Allied and its consolidated ~~Parent~~ Subsidiaries as of the ~~respective~~ dates thereof and the consolidated ~~statements~~ results of ~~income,~~ their operations and 16 cash flows ~~and changes in stockholders’ equity~~ for the ~~respective~~ periods then ended (subject, in the case of unaudited ~~quarterly~~ statements, to normal year-end audit ~~adjustments and the absence of footnotes~~adjustments). (dc) ~~As of March 31~~Allied and the Allied Subsidiaries have no liabilities, ~~2007~~whether accrued, ~~neither Parent nor any of the Parent Subsidiaries had any liabilities~~ absolute, contingent or ~~obligations~~ otherwise that would ~~have been~~ be required ~~by GAAP~~ to be ~~reflected in the consolidated~~ disclosed on a balance sheet ~~of Parent and the Parent Subsidiaries as of such date~~prepared in accordance with GAAP, except liabilities (i) ~~for such liabilities and obligations reflected,~~ stated or reserved against ~~or otherwise disclosed~~ in the ~~consolidated balance sheet of Parent and the Parent Subsidiaries as of such date (including the notes thereto) that is included in the Parent SEC~~ Allied Financial ~~Statements and~~ Statements, (ii) ~~for such liabilities~~ incurred in the ordinary and ~~obligations as would not be reasonably expected to have~~usual course of business since December 31, 2007 or in connection with this Agreement or the Merger or (iii) that, individually or in the aggregate, have not had or would not reasonably be expected to have a ~~Parent~~ Material Adverse Effect (it is understood and agreed that the representations and warranties contained in this Section 5.5(d): (x) do not apply to matters described in any of Section 5.4, the other provisions of this Section 5.5, and Sections 5.7, 5.8, 5.9, 5.10, 5.11 and 5.17 (which are addressed exclusively in those Sections) and (y) shall not be deemed breached if such breach relates to a matter which is covered by a representation or warranty of Parent and Merger Sub contained in this Article V (other than this Section 5.5(d)) that contains a “Parent’s Knowledge” qualification)on Allied. (ed) ~~Since December 31, 2006 to the date of this Agreement, (i) neither Parent~~ Neither Allied nor any ~~Parent~~ Allied Subsidiary ~~nor~~is a party to, or has any commitment to ~~Parent’s Knowledge~~become a party to, any ~~director~~joint venture, ~~officer~~off-balance sheet partnership or any similar Contract (including any Contract relating to any transaction or relationship between or among Allied and any of the Allied Subsidiaries, ~~auditor~~on the one hand, ~~accountant~~ and any unconsolidated Affiliate, including any structured finance, special purpose or ~~representative~~ limited purpose Person, on the other hand, or any “off-balance sheet arrangements” (as defined in Item 303(a) of ~~Parent~~ Regulation S-K of the SEC)), where the result, purpose or effect of such Contract is to avoid disclosure of any material transaction involving, or material liabilities of, Allied or any Allied Subsidiary in Allied’s or such Subsidiary’s published financial statements or any of the Parent Subsidiaries has received any written complaint, allegation, assertion or claim that Parent or any of the Parent Subsidiaries has engaged in improper or illegal accounting or auditing practices or maintains improper or inadequate internal accounting controls relating to Parent and the Parent Subsidiaries, taken as a whole, (ii) no attorney representing Parent or any Parent Subsidiary has made a report to Parent’s chief legal officer, chief executive officer or Board of Directors (or any committee thereof) pursuant to the SEC’s Standards of Professional Conduct for Attorneys (17 CFR Part 205), and (iii) Parent has disclosed to its outside auditors any fraud, whether or not material, of which there is Parent’s Knowledge that involves management or other employees who have a significant role in Parent’s internal control over financial reportingAllied SEC Documents.

Appears in 2 contracts

Sources: Merger Agreement (Allied Waste Industries Inc), Merger Agreement (Republic Services Inc)

SEC Documents; Financial Statements; Undisclosed Liabilities. (ai) ~~Parent has~~ Diamond and its subsidiaries have filed or furnished all required registration statements, prospectuses, reports, schedules, ~~forms~~ forms, statements, certifications and ~~registration statements~~ other documents (including exhibits and all other information incorporated therein) with the SEC ~~required to be filed by it pursuant to the Securities Act and the Securities Act Rules, or the Exchange Act and the Exchange Act Rules, in each such case~~ since January 1, ~~2005~~ 2013 (~~collectively, and in each case including all annexes and schedules thereto and documents incorporated by reference therein,~~ the “~~Parent~~ Diamond SEC Documents”). As of their respective ~~dates (or if subsequently amended or superseded by a filing prior to the date of this Agreement, on the date of such filing)~~dates, the ~~Parent~~ Diamond SEC Documents complied ~~as to form~~ in all material respects with the requirements of the Securities ~~Act or~~ Act, the Exchange Act and the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act, as the case may be, and the rules and regulations of the SEC promulgated thereunder applicable to ~~such Parent~~ the Diamond SEC Documents, and none of the ~~Parent~~ Diamond SEC Documents ~~as of such dates~~ when filed and at their respective effective times, if applicable, contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading. ~~To Parent’s Knowledge, as~~ As of the date ~~hereof~~of this Agreement, there are no outstanding or unresolved comments received from the SEC with respect to any of the Diamond SEC Documents, and, to the knowledge of Diamond, none of the ~~Parent~~ Diamond SEC Documents is the subject of ~~ongoing~~ any outstanding SEC ~~review~~comment or outstanding SEC investigation. (bii) ~~Parent is~~ The consolidated financial statements (including all related notes and schedules) of Diamond and its subsidiaries included in ~~compliance with, and has complied,~~ the Diamond SEC Documents (the “Diamond Financial Statements”) were prepared in all material respects in accordance with GAAP (iexcept, in the case of unaudited statements, as permitted by the SEC) applied on a consistent basis during the ~~applicable provisions~~ periods involved (except as may be indicated in the notes thereto) and fairly present in all material respects the consolidated financial position of Diamond and its consolidated subsidiaries as of the ~~▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002~~ dates thereof and the ~~related rules~~ consolidated results of their operations and ~~regulations promulgated thereunder~~cash flows for the periods then ended (subject, in the case of unaudited statements, to normal year-end audit adjustments which are not material and to any other adjustments described therein, including the notes thereto). (iii) Except (A) as reflected or reserved against in Diamond’s unaudited balance sheet as of September 30, 2015 (or the notes thereto) as included in the Diamond Filed SEC Documents, (B) for liabilities and obligations incurred in the ordinary course of business consistent with past practice since September 30, 2015 and (iiC) for liabilities and obligations incurred in connection with or contemplated by this Agreement, neither Diamond nor any of its subsidiaries has any liabilities or obligations of any nature (whether accrued, absolute, contingent or otherwise) that would be required by GAAP to be reflected on a consolidated balance sheet of Diamond and its subsidiaries (or in the ~~applicable listing and corporate governance rules and regulations~~ notes thereto) that, individually or in the aggregate, would reasonably be expected to have a Material Adverse Effect on Diamond. (iv) Diamond maintains a system of ~~NASDAQ. Parent has established and maintains disclosure controls and procedures and~~ “internal control over financial ~~reporting~~ reporting” (as ~~such terms are~~ defined in ~~paragraphs (e~~Rules 13a-15(f) and ~~(f), respectively,~~ 15d-15(f) of ~~Rule 13a-15 under~~ the Exchange Act) sufficient to provide reasonable assurance (i) that transactions are recorded as ~~required by Rule 13a-15 under~~ necessary to permit preparation of financial statements in conformity with GAAP, consistently applied, (ii) that transactions are executed only in accordance with the authorization of management and (iii) regarding prevention or timely detection of the unauthorized acquisition, use or disposition of Diamond’s properties or assets. Since January 1, 2013, none of Diamond, Diamond’s independent accountants, the Board of Directors of Diamond or its audit committee has received any oral or written notification of any (i) “significant deficiency” in the internal controls over financial reporting of Diamond, (ii) “material weakness” in the internal controls over financial reporting of Diamond or (iii) fraud, whether or not material, that involves management or other employees of Diamond who have a significant role in the internal controls over financial reporting of Diamond. (v) The “disclosure controls and procedures” (as defined in Rules 13a-15(e) and 15d-15(e) of the Exchange Act~~. Parent’s disclosure controls and procedures~~ ) utilized by Diamond are reasonably designed to ensure that all ~~material~~ information (both financial and non-financial) required to be disclosed by ~~Parent~~ Diamond in the reports that it files or ~~furnishes~~ submits under the Exchange Act is recorded, processed, summarized and reported within the time periods specified in the rules and forms of the ~~SEC,~~ SEC and that all such ~~material~~ information required to be disclosed is accumulated and communicated to the management of ~~Parent~~ Diamond, as ~~appropriate~~ appropriate, to allow timely decisions regarding required disclosure and to enable the chief executive officer and chief financial officer of Diamond to make the certifications required ~~pursuant to Sections 302 and 906 of~~ under the ~~▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act. The management of Parent has completed its assessment of the effectiveness of Parent’s internal control over financial reporting in compliance~~ Exchange Act with the requirements of Section 404 of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act for the year ended December 31, 2006, and such assessment concluded that such controls were effective to provide reasonable assurance regarding the reliability of Parent’s financial reporting and the preparation of Parent’s financial statements for external purposes in accordance with GAAP. Parent has disclosed, based on its assessment of the effectiveness of Parent’s internal control over financial reporting in compliance with the requirements of Section 404 of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act for the year ended December 31, 2006, to Parent’s independent registered accounting firm and the audit committee of the Board of Directors of Parent (A) any significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect Parent’s ability to record, process, summarize and report financial information and (B) any fraud, whether or not material, of which there is Parent’s Knowledge that involves management or other employees who have a significant role in Parent’s internal control over financial reporting for the year ended December 31, 2006. Parent any has made available to the Company a summary of any such disclosures made by management respect to such ~~accounting firm or audit committee for the year ended December 31, 2006~~reports. (cvi) ~~The consolidated financial statements~~ Neither Diamond nor any of ~~Parent included~~ its subsidiaries is a party to, or has any commitment to become a party to, any joint venture, off-balance sheet partnership or any similar contract (including any contract or arrangement relating to any transaction or relationship between or among Diamond and any of its subsidiaries, on the one hand, and any unconsolidated affiliate, including any structured finance, special purpose or limited purpose entity or person, on the other hand, or any “off-balance sheet arrangements” (as defined in ~~the Parent SEC Documents (the “Parent SEC Financial Statements”~~Item 303(a) ~~(i) have been prepared in accordance with GAAP (except as may be otherwise indicated therein or in the notes thereto and except, in the case~~ of ~~unaudited consolidated quarterly statements, as permitted by Form 10~~Regulation S-~~Q of~~ K under the Exchange Act)), ~~applied on a consistent basis during~~ where the ~~periods involved~~result, (ii) complied in all material respects with published rules and regulations of the SEC with respect thereto, and (iii) fairly present in all material respects the consolidated financial position of Parent and its consolidated Parent Subsidiaries as of the respective dates thereof and the consolidated statements of income, cash flows and changes in stockholders’ equity for the respective periods then ended (subject, in the case of unaudited quarterly statements, to normal year-end audit adjustments and the absence of footnotes). (d) As of March 31, 2007, neither Parent nor any of the Parent Subsidiaries had any liabilities purpose or ~~obligations that would have been required by GAAP to be reflected in the consolidated balance sheet of Parent and the Parent Subsidiaries as~~ intended effect of such ~~date~~contract is to avoid disclosure of any material transaction involving, ~~except (i) for such~~ or material liabilities ~~and obligations reflected~~of, reserved against or otherwise disclosed in the consolidated balance sheet of Parent and the Parent Subsidiaries as of such date (including the notes thereto) that is included in the Parent SEC Financial Statements and (ii) for such liabilities and obligations as would not be reasonably expected to have, individually or in the aggregate, a Parent Material Adverse Effect (it is understood and agreed that the representations and warranties contained in this Section 5.5(d): (x) do not apply to matters described in any of Section 5.4, the other provisions of this Section 5.5, and Sections 5.7, 5.8, 5.9, 5.10, 5.11 and 5.17 (which are addressed exclusively in those Sections) and (y) shall not be deemed breached if such breach relates to a matter which is covered by a representation or warranty of Parent and Merger Sub contained in this Article V (other than this Section 5.5(d)) that contains a “Parent’s Knowledge” qualification). (e) Since December 31, 2006 to the date of this Agreement, (i) neither Parent nor any Parent Subsidiary nor, to Parent’s Knowledge, any director, officer, auditor, accountant or representative of Parent Diamond or any of ~~the Parent Subsidiaries has received any written complaint, allegation, assertion~~ its subsidiaries in Diamond’s or claim that Parent or any of the Parent Subsidiaries has engaged in improper or illegal accounting or auditing practices or maintains improper or inadequate internal accounting controls relating to Parent and the Parent Subsidiaries, taken as a whole, (ii) no attorney representing Parent or any Parent Subsidiary has made a report to Parentsuch subsidiary’s chief legal officer, chief executive officer or Board of Directors (or any committee thereof) pursuant to the SEC’s Standards of Professional Conduct for Attorneys (17 CFR Part 205), and (iii) Parent has disclosed to its outside auditors any fraud, whether or not material, of which there is Parent’s Knowledge that involves management published financial statements or other ~~employees who have a significant role in Parent’s internal control over financial reporting~~Diamond SEC Documents.

Appears in 2 contracts

Sources: Merger Agreement (Dupont E I De Nemours & Co), Merger Agreement (Dow Chemical Co /De/)

SEC Documents; Financial Statements; Undisclosed Liabilities. (a) ~~Parent~~ OSI has filed all ~~reports~~forms, ~~schedules, forms~~ reports and ~~registration statements with the SEC~~ documents required to be filed ~~by it pursuant~~ with the SEC since effectiveness of the registration statement filed in connection with its initial public offering (the "IPO Date"), and has made available to LRC such forms, reports and documents in the form filed with the SEC. All such required forms, reports and documents (including those that OSI may file subsequent to the ~~Securities Act and~~ date hereof until the ~~Securities Act Rules, or~~ Closing) are referred to herein as the Exchange Act and the Exchange Act Rules, in each such case since January 1, 2005 (collectively, and in each case including all annexes and schedules thereto and documents incorporated by reference therein, the “Parent "OSI SEC Documents~~”).~~ ." As of their respective ~~dates (or if subsequently amended or superseded by a filing prior to the date of this Agreement, on the date of such filing)~~dates, the ~~Parent~~ OSI SEC Documents ~~complied as to form~~ (i) were prepared in ~~all material respects~~ accordance with the requirements of the Securities Act of 1933, as amended (the "Securities Act") or the Exchange Act, as the case may be, and the rules and regulations of the SEC ~~promulgated~~ thereunder applicable to such ~~Parent~~ OSI SEC Documents, and ~~none~~ (ii) did not at the time they were filed (and if amended or superseded by a filing prior to the date of this Agreement, then on the ~~Parent SEC Documents as~~ date of such ~~dates contained~~ filing) contain any untrue statement of a material fact or ~~omitted~~ 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 were made, not misleading. ~~To Parent’s Knowledge~~None of OSI's subsidiaries is required to file any forms, ~~as of~~ reports or other documents with the ~~date hereof, none of the Parent SEC Documents is the subject of ongoing SEC review~~SEC. (b) ~~Parent is~~ Each of the consolidated financial statements (including, in ~~compliance with~~each case, ~~and has complied~~any related notes thereto) contained in OSI SEC Documents (the "OSI Financial Statements"), including any OSI SEC Documents filed after the date hereof until the Closing, (x) complied as to form in all material respects with ~~(i) the~~ applicable ~~provisions of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002~~ accounting requirements and the related rules and regulations promulgated thereunder, and (ii) the applicable listing and corporate governance rules and regulations of NASDAQ. Parent has established and maintains disclosure controls and procedures and internal control over financial reporting (as such terms are defined in paragraphs (e) and (f), respectively, of Rule 13a-15 under the Exchange Act) as required by Rule 13a-15 under the Exchange Act. Parent’s disclosure controls and procedures are reasonably designed to ensure that all material information required to be disclosed by Parent in the reports that it files or furnishes under the Exchange Act is recorded, processed, summarized and reported within the time periods specified in the rules and forms of the SEC, and that all such material information is accumulated and communicated to the management of Parent as appropriate to allow timely decisions regarding required disclosure and to make the certifications required pursuant to Sections 302 and 906 of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act. The management of Parent has completed its assessment of the effectiveness of Parent’s internal control over financial reporting in compliance with the requirements of Section 404 of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act for the year ended December 31, 2006, and such assessment concluded that such controls were effective to provide reasonable assurance regarding the reliability of Parent’s financial reporting and the preparation of Parent’s financial statements for external purposes in accordance with GAAP. Parent has disclosed, based on its assessment of the effectiveness of Parent’s internal control over financial reporting in compliance with the requirements of Section 404 of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act for the year ended December 31, 2006, to Parent’s independent registered accounting firm and the audit committee of the Board of Directors of Parent (A) any significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect Parent’s ability to record, process, summarize and report financial information and (B) any fraud, whether or not material, of which there is Parent’s Knowledge that involves management or other employees who have a significant role in Parent’s internal control over financial reporting for the year ended December 31, 2006. Parent any has made available to the Company a summary of any such disclosures made by management to such accounting firm or audit committee for the year ended December 31, 2006. (c) The consolidated financial statements of Parent included in the Parent SEC Documents (the “Parent SEC Financial Statements”) (i) have been prepared in accordance with GAAP (except as may be otherwise indicated therein or in the notes thereto and except, in the case of unaudited consolidated quarterly statements, as permitted by Form 10-Q of the Exchange Act), applied on a consistent basis during the periods involved, (ii) complied in all material respects with published rules and regulations of the SEC with respect thereto, (y) was prepared in accordance with generally accepted accounting principles ("GAAP") applied on a consistent basis throughout the periods involved (except as may be indicated in the notes thereto or, in the case of unaudited interim financial statements, as may be permitted by the SEC on Form 10-Q under the Exchange Act) and (~~iii~~z) fairly ~~present in all material respects~~ presented the consolidated financial position of ~~Parent~~ OSI and its ~~consolidated Parent Subsidiaries~~ subsidiaries as of at the respective dates thereof and the consolidated ~~statements~~ results of ~~income,~~ its operations and cash flows ~~and changes in stockholders’ equity~~ for the ~~respective~~ periods ~~then ended (subject~~indicated, in consistent with the ~~case~~ books and records of OSI, except that the unaudited ~~quarterly statements,~~ interim financial statements were or are subject to normal and recurring year-end ~~audit~~ adjustments ~~and~~ which were not, or are not expected to be, material in amount. The balance sheet of OSI contained in OSI's Form 10-Q for the ~~absence of footnotes). (d) As of March~~ quarter ended December 31, ~~2007, neither Parent~~ 1996 is hereinafter referred to as the "OSI Balance Sheet." Neither OSI nor any of ~~the Parent Subsidiaries had~~ its subsidiaries has any liabilities (absolute, accrued, contingent or ~~obligations that would have been~~ otherwise), whether or not of a nature required ~~by GAAP~~ to be disclosed on a balance sheet or in the related notes to the consolidated financial statements prepared in accordance with GAAP, which individually or in the aggregate are or would be reasonably likely to have a Material Adverse Effect on OSI other than (i) liabilities reflected in the ~~consolidated balance sheet of Parent and the Parent Subsidiaries as of such date~~OSI Balance Sheet, except (i) for such liabilities and obligations reflected, reserved against or otherwise disclosed in the consolidated balance sheet of Parent and the Parent Subsidiaries as of such date (including the notes thereto) that is included in the Parent SEC Financial Statements and (ii) ~~for such~~ normal or recurring liabilities ~~and obligations as would not be reasonably expected to have~~incurred since December 31, ~~individually or~~ 1996 in the ~~aggregate~~ordinary course of business consistent with past practice. The inventories shown on the OSI Balance Sheet are (and on OSI balance sheets included in future OSI SEC Documents except as disclosed therein will be) of a quantity and quality useable and saleable in accordance with good business practices and represent a distribution of the types of inventories utilized in the business of OSI in accordance with good business practices. The amounts shown for inventories on the OSI Balance Sheet have been (and on OSI balance sheets included in future OSI SEC Documents except as disclosed therein will be) determined in accordance with generally accepted accounting principles on a first-in, ~~a Parent Material Adverse Effect (it is understood~~ first-out basis and ~~agreed that the representations and warranties contained in this Section 5.5(d): (x) do not apply to matters described in any~~ are stated at lower of Section 5.4, the other provisions of this Section 5.5, and Sections 5.7, 5.8, 5.9, 5.10, 5.11 and 5.17 (which are addressed exclusively in those Sections) and (y) shall not be deemed breached if such breach relates to a matter which is covered by a representation cost or ~~warranty of Parent and Merger Sub contained in this Article V (other than this Section 5.5(d)) that contains a “Parent’s Knowledge” qualification)~~market. (ec) ~~Since December 31~~OSI has heretofore made available to LRC a complete and correct copy of any amendments or modifications, ~~2006~~ which have not yet been filed with the SEC but which are required to ~~the date of this Agreement, (i) neither Parent nor any Parent Subsidiary nor~~be filed, to ~~Parent’s Knowledge~~agreements, ~~any director, officer, auditor, accountant~~ documents or ~~representative of Parent or any of~~ other instruments which previously had been filed by OSI with the Parent Subsidiaries has received any written complaint, allegation, assertion or claim that Parent or any of the Parent Subsidiaries has engaged in improper or illegal accounting or auditing practices or maintains improper or inadequate internal accounting controls relating to Parent and the Parent Subsidiaries, taken as a whole, (ii) no attorney representing Parent or any Parent Subsidiary has made a report to Parent’s chief legal officer, chief executive officer or Board of Directors (or any committee thereof) SEC pursuant to the ~~SEC’s Standards of Professional Conduct for Attorneys (17 CFR Part 205), and (iii) Parent has disclosed to its outside auditors any fraud, whether~~ Securities Act or ~~not material, of which there is Parent’s Knowledge that involves management or other employees who have a significant role in Parent’s internal control over financial reporting~~the Exchange Act.

Appears in 2 contracts

Sources: Merger Agreement (Lam Research Corp), Merger Agreement (Lam Research Corp)

SEC Documents; Financial Statements; Undisclosed Liabilities. (a) ~~Parent~~ Republic has timely filed ~~all reports, schedules, forms and registration statements~~ with ~~the SEC required to be filed by it pursuant~~ or furnished to the ~~Securities Act and the Securities Act Rules~~SEC, ~~or the Exchange Act and the Exchange Act Rules~~as applicable, ~~in each such case since January 1, 2005 (collectively, and in each case including~~ all ~~annexes and schedules thereto and documents incorporated by reference therein, the “Parent~~ Republic SEC Documents”). As of ~~their~~ its respective ~~dates~~ date, each Republic SEC Document (including any financial statements or ~~if subsequently amended or superseded by a filing prior to the date of this Agreement, on the date of such filing), the Parent SEC Documents~~ schedules included therein) complied ~~as to form~~ in all material respects with the applicable requirements of the Securities Act or and the Exchange Act, as the case may be, and the rules and regulations of the SEC promulgated thereunder applicable to such ~~Parent~~ Republic SEC ~~Documents~~Document, and ~~none of the Parent SEC Documents as of such dates contained~~ did not contain any untrue statement of a material fact or ~~omitted~~ omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading. ~~To Parent’s Knowledge, as of~~ Except to the ~~date hereof~~extent that information contained in any Republic SEC Document has been revised or superseded by a later filed Republic SEC Document, none of the ~~Parent~~ Republic SEC Documents is contains any untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary in order to make the ~~subject~~ statements therein, in light of ~~ongoing SEC review~~the circumstances under which they were made, not misleading. (b) ~~Parent is in compliance with~~As of their respective dates, ~~and has complied,~~ the Republic Financial Statements complied as to form in all material respects with ~~(i) the~~ applicable ~~provisions of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002~~ accounting requirements and the ~~related rules and regulations promulgated thereunder, and (ii) the applicable listing and corporate governance~~ published rules and regulations of ~~NASDAQ. Parent has established and maintains disclosure controls and procedures and internal control over financial reporting (as such terms are defined in paragraphs (e) and (f)~~the SEC with respect thereto, respectively, of Rule 13a-15 under the Exchange Act) as required by Rule 13a-15 under the Exchange Act. Parent’s disclosure controls and procedures are reasonably designed to ensure that all material information required to be disclosed by Parent in the reports that it files or furnishes under the Exchange Act is recorded, processed, summarized and reported within the time periods specified in the rules and forms of the SEC, and that all such material information is accumulated and communicated to the management of Parent as appropriate to allow timely decisions regarding required disclosure and to make the certifications required pursuant to Sections 302 and 906 of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act. The management of Parent has completed its assessment of the effectiveness of Parent’s internal control over financial reporting in compliance with the requirements of Section 404 of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act for the year ended December 31, 2006, and such assessment concluded that such controls were effective to provide reasonable assurance regarding the reliability of Parent’s financial reporting and the preparation of Parent’s financial statements for external purposes in accordance with GAAP. Parent has disclosed, based on its assessment of the effectiveness of Parent’s internal control over financial reporting in compliance with the requirements of Section 404 of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act for the year ended December 31, 2006, to Parent’s independent registered accounting firm and the audit committee of the Board of Directors of Parent (A) any significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect Parent’s ability to record, process, summarize and report financial information and (B) any fraud, whether or not material, of which there is Parent’s Knowledge that involves management or other employees who have a significant role in Parent’s internal control over financial reporting for the year ended December 31, 2006. Parent any has made available to the Company a summary of any such disclosures made by management to such accounting firm or audit committee for the year ended December 31, 2006. (c) The consolidated financial statements of Parent included in the Parent SEC Documents (the “Parent SEC Financial Statements”) (i) have having been prepared in accordance with GAAP (except as may be ~~otherwise~~ indicated ~~therein or~~ in the notes thereto ~~and except~~and, in the case of unaudited ~~consolidated quarterly~~ statements, as permitted by ~~Form 10-Q of the Exchange Act),~~ Law) applied on a consistent basis during the periods ~~involved~~involved (except as may be indicated in the notes thereto), ~~(ii) complied~~ and fairly presented, in all material ~~respects with published rules and regulations of the SEC with respect thereto~~respects, ~~and (iii) fairly present in all material respects~~ the consolidated financial position of ~~Parent~~ Republic and its consolidated ~~Parent~~ Subsidiaries as of the ~~respective~~ dates thereof and the consolidated ~~statements~~ results of ~~income,~~ their operations and cash flows ~~and changes in stockholders’ equity~~ for the ~~respective~~ periods then ended (subject, in the case of unaudited ~~quarterly~~ statements, to normal year-end audit ~~adjustments and the absence of footnotes~~adjustments). (dc) ~~As of March 31~~Republic and the Republic Subsidiaries have no liabilities, ~~2007~~whether accrued, ~~neither Parent nor any of the Parent Subsidiaries had any liabilities~~ absolute, contingent or ~~obligations~~ otherwise that would ~~have been~~ be required ~~by GAAP~~ to be ~~reflected in the consolidated~~ disclosed on a balance sheet ~~of Parent and the Parent Subsidiaries as of such date~~prepared in accordance with GAAP, except liabilities (i) ~~for such liabilities and obligations reflected,~~ stated or reserved against ~~or otherwise disclosed~~ in the ~~consolidated balance sheet of Parent and the Parent Subsidiaries as of such date (including the notes thereto) that is included in the Parent SEC~~ Republic Financial ~~Statements and~~ Statements, (ii) ~~for such liabilities~~ incurred in the ordinary and ~~obligations as would not be reasonably expected to have~~usual course of business since December 31, 2007 or in connection with this Agreement or the Merger or (iii) that, individually or in the aggregate, have not had or would not reasonably be expected to have a ~~Parent~~ Material Adverse Effect (it is understood and agreed that the representations and warranties contained in this Section 5.5(d): (x) do not apply to matters described in any of Section 5.4, the other provisions of this Section 5.5, and Sections 5.7, 5.8, 5.9, 5.10, 5.11 and 5.17 (which are addressed exclusively in those Sections) and (y) shall not be deemed breached if such breach relates to a matter which is covered by a representation or warranty of Parent and Merger Sub contained in this Article V (other than this Section 5.5(d)) that contains a “Parent’s Knowledge” qualification)on Republic. (ed) ~~Since December 31, 2006 to the date of this Agreement, (i) neither Parent~~ Neither Republic nor any ~~Parent~~ Republic Subsidiary ~~nor~~is a party to, or has any commitment to ~~Parent’s Knowledge~~become a party to, any ~~director~~joint venture, ~~officer~~off-balance sheet partnership or any similar Contract (including any Contract relating to any transaction or relationship between or among Republic and any of the Republic Subsidiaries, ~~auditor~~on the one hand, ~~accountant~~ and any unconsolidated Affiliate, including any structured finance, special purpose or ~~representative~~ limited purpose Person, on the other hand, or any “off-balance sheet arrangements” (as defined in Item 303(a) of ~~Parent~~ Regulation S-K of the SEC)), where the result, purpose or effect of such Contract is to avoid disclosure of any material transaction involving, or material liabilities of, Republic or any Republic Subsidiary in Republic’s or such Subsidiary’s published financial statements or any of the Parent Subsidiaries has received any written complaint, allegation, assertion or claim that Parent or any of the Parent Subsidiaries has engaged in improper or illegal accounting or auditing practices or maintains improper or inadequate internal accounting controls relating to Parent and the Parent Subsidiaries, taken as a whole, (ii) no attorney representing Parent or any Parent Subsidiary has made a report to Parent’s chief legal officer, chief executive officer or Board of Directors (or any committee thereof) pursuant to the SEC’s Standards of Professional Conduct for Attorneys (17 CFR Part 205), and (iii) Parent has disclosed to its outside auditors any fraud, whether or not material, of which there is Parent’s Knowledge that involves management or other employees who have a significant role in Parent’s internal control over financial reporting.Republic SEC Documents. 26

Appears in 2 contracts

Sources: Merger Agreement (Allied Waste Industries Inc), Merger Agreement (Republic Services Inc)

SEC Documents; Financial Statements; Undisclosed Liabilities. (a) ~~Parent~~ Holdings has filed or furnished all reports, schedules, ~~forms~~ forms, statements, registration statements, prospectuses and ~~registration statements with the SEC~~ other documents required to be filed or furnished by ~~it pursuant to~~ Holdings with the SEC under the Securities Act ~~and the Securities Act Rules,~~ or the Exchange Act ~~and the Exchange Act Rules, in each such case~~ since January 1, ~~2005~~ 2013 (~~collectively, and in each case including all annexes and schedules thereto and documents incorporated by reference therein,~~ the “~~Parent~~ Holdings SEC Documents”). None of the Subsidiaries of Holdings is required to make or makes any filings with the SEC. (b) As of ~~their~~ its respective ~~dates (or~~ filing date, and, if ~~subsequently amended or superseded by a filing~~ amended, as of the date of the last amendment prior to the date of this Agreement, ~~on the date of such filing), the Parent~~ each Holdings SEC ~~Documents~~ Document complied ~~as to form~~ in all material respects with the requirements of the ~~Securities~~ Exchange Act or the ~~Exchange~~ Securities Act, as the case may be, and the rules and regulations of the SEC promulgated thereunder applicable to such ~~Parent~~ Holdings SEC ~~Documents, and none of the Parent SEC Documents as of such dates contained~~ Document did not contain any untrue statement of a material fact or ~~omitted~~ omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading. (c) The consolidated financial statements of Holdings included in the Holdings SEC Documents (including, in each case, any notes or schedules thereto) and all related compilations, reviews and other reports issued by Holdings’s accountants with respect thereto (the “Holdings SEC Financial Statements”), comply as to form in all material respects with applicable accounting requirements and the published rules and regulations of the SEC with respect thereto. ~~To Parent’s Knowledge~~The Holdings SEC Financial Statements fairly present, in all material respects, the financial condition and the results of operations, cash flows and changes in stockholders’ equity of Holdings (on a consolidated basis) as of the ~~date hereof~~respective dates of and for the periods referred to in the Holdings SEC Financial Statements, ~~none~~ and were prepared in accordance with GAAP applied on a consistent basis during the periods involved (except as may be indicated in the notes thereto), subject, in the case of interim Holdings SEC Financial Statements, to normal year-end adjustments (which are not material in significance or amount) and the absence of notes. The books and records of Holdings and its Subsidiaries are accurate and complete in all material respects, have been maintained in accordance with sound business practices and accurately present and reflect in all material respects all of the ~~Parent~~ transactions and actions therein described and the Holdings SEC ~~Documents is~~ Financial Statements have been prepared, in all material respects, in accordance with such books and records. No financial statements of any Person other than Holdings and its Subsidiaries are required by GAAP to be included in the ~~subject~~ consolidated financial statements of ~~ongoing SEC review~~Holdings. Except as required by GAAP, Holdings has not, between December 31, 2015 and the date of this Agreement, made or adopted any material change in its accounting methods, practices or policies in effect on December 31, 2015. (bd) ~~Parent~~ Holdings is in compliance ~~with, and has complied,~~ in all material respects with (i) the applicable provisions of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act ~~of 2002 and the related rules and regulations promulgated thereunder,~~ and (ii) the applicable listing and corporate governance rules and regulations of ~~NASDAQ~~the NYSE. (e) Holdings has made available to AmSurg true and complete copies of all written comment letters from the staff of the SEC received since January 1, 2013 relating to the Holdings SEC Documents and all written responses of Holdings thereto other than with respect to requests for confidential treatment or which are otherwise publicly available on the SEC’s ▇▇▇▇▇ system. ~~Parent~~ To the Knowledge of Holdings, there are no outstanding or unresolved comments in comment letters received from the SEC staff with respect to any Holdings SEC Documents and none of the Holdings SEC Documents (other than confidential treatment requests) is the subject of ongoing SEC review. There are no internal investigations with respect to which Holdings has retained outside counsel, SEC inquiries or investigations or other governmental inquiries or investigations, to the Knowledge of Holdings, pending or threatened, in each case regarding any accounting practices of Holdings. (f) Holdings has established and maintains disclosure controls and procedures and internal control over financial reporting (as such terms are defined in paragraphs (e) and (f), respectively, of Rule 13a-15 and paragraph (e) of Rule 15d-15 under the Exchange Act) as required by ~~Rule~~ Rules 13a-15 and 15d-15 under the Exchange Act. ~~Parent~~Holdings’s disclosure controls and procedures are ~~reasonably~~ designed to ensure that ~~all material~~ information required to be disclosed by ~~Parent~~ Holdings in the reports that it files or ~~furnishes~~ submits under the Exchange Act is recorded, processed, summarized and reported within the time periods specified in the rules and forms of the SEC, and that all such ~~material~~ information is accumulated and communicated to ~~the~~ Holdings’s management ~~of Parent~~ as appropriate to allow timely decisions regarding required disclosure and to make the certifications required pursuant to Sections 302 and 906 of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act. ~~The~~ Holdings’s management ~~of Parent~~ has completed ~~its~~ an assessment of the effectiveness of ~~Parent~~Holdings’s disclosure controls and procedures and, to the extent required by applicable Law, presented in any applicable Holdings SEC Document that is a report on Form 10-K or Form 10-Q, or any amendment thereto, its conclusions about the effectiveness of the disclosure controls and procedures as of the end of the period covered by such report or amendment based on such evaluation. Based on Holdings’s management’s most recently completed evaluation of Holdings’s internal control over financial reporting ~~in compliance with~~ prior to the ~~requirements of Section 404 of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act for the year ended December 31~~date hereof, 2006, and such assessment concluded that such controls were effective to provide reasonable assurance regarding the reliability of Parent’s financial reporting and the preparation of Parent’s financial statements for external purposes in accordance with GAAP. Parent has disclosed, based on its assessment of the effectiveness of Parent’s internal control over financial reporting in compliance with the requirements of Section 404 of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act for the year ended December 31, 2006, to Parent’s independent registered accounting firm and the audit committee of the Board of Directors of Parent (Ai) ~~any~~ Holdings had no significant deficiencies ~~and~~ or material weaknesses in the design or operation of its internal control over financial reporting ~~which are~~ that would reasonably ~~likely~~ be expected to adversely affect ~~Parent~~Holdings’s ability to record, process, summarize and report financial information and (Bii) Holdings does not have Knowledge of any fraud, whether or not material, ~~of which there is Parent’s Knowledge~~ that involves management or other employees who have a significant role in ~~Parent~~Holdings’s internal control over financial reporting for the year ended December 31, 2006. Parent any has made available to the Company a summary of any such disclosures made by management to such accounting firm or audit committee for the year ended December 31, 2006reporting. (cg) The consolidated financial statements of Parent included in the Parent SEC Documents (the “Parent SEC Financial Statements”) (i) have been prepared in accordance with GAAP (except as may be otherwise indicated therein or in the notes thereto and except, in the case of unaudited consolidated quarterly statements, as permitted by Form 10-Q of the Exchange Act), applied on a consistent basis during the periods involved, (ii) complied in all material respects with published rules and regulations of the SEC with respect thereto, and (iii) fairly present in all material respects the consolidated financial position of Parent Holdings and its ~~consolidated Parent~~ Subsidiaries as of the respective dates thereof and the consolidated statements of income, cash flows and changes in stockholders’ equity for the respective periods then ended (subject, in the case of unaudited quarterly statements, to normal year-end audit adjustments and the absence of footnotes). (d) As of March 31, 2007, neither Parent nor any of the Parent Subsidiaries had do not have any liabilities or obligations ~~that would have been~~ of any nature (whether absolute or contingent, asserted or unasserted, known or unknown, primary or secondary, direct or indirect, and whether or not accrued or required ~~by GAAP~~ to be reflected in ~~the consolidated balance sheet of Parent and the Parent Subsidiaries as of such date~~Holdings’s financial statements in accordance with GAAP), except (i) ~~for such liabilities and obligations reflected~~as disclosed, reflected or reserved against ~~or otherwise disclosed~~ in the ~~consolidated~~ most recent audited balance sheet ~~of Parent and~~ included in the ~~Parent Subsidiaries as of such date (including~~ Holdings SEC Financial Statements or the notes thereto~~) that is included in the Parent SEC Financial Statements and~~ , (ii) for ~~such~~ liabilities and obligations ~~as would not be reasonably expected to have~~incurred in the ordinary course of business since the date of the most recent audited balance sheet included in the Holdings SEC Financial Statements, (iii) for liabilities and obligations arising out of or in connection with this Agreement, the Mergers or the Transactions and (iv) for liabilities and obligations that, individually or in the aggregate, have not had, and would not reasonably be expected to have, a ~~Parent~~ Holdings Material Adverse Effect (it is understood and agreed that the representations and warranties contained in this Section 5.5(d): (x) do not apply to matters described in any of Section 5.4, the other provisions of this Section 5.5, and Sections 5.7, 5.8, 5.9, 5.10, 5.11 and 5.17 (which are addressed exclusively in those Sections) and (y) shall not be deemed breached if such breach relates to a matter which is covered by a representation or warranty of Parent and Merger Sub contained in this Article V (other than this Section 5.5(d)) that contains a “Parent’s Knowledge” qualification)Effect. (e) Since December 31, 2006 to the date of this Agreement, (i) neither Parent nor any Parent Subsidiary nor, to Parent’s Knowledge, any director, officer, auditor, accountant or representative of Parent or any of the Parent Subsidiaries has received any written complaint, allegation, assertion or claim that Parent or any of the Parent Subsidiaries has engaged in improper or illegal accounting or auditing practices or maintains improper or inadequate internal accounting controls relating to Parent and the Parent Subsidiaries, taken as a whole, (ii) no attorney representing Parent or any Parent Subsidiary has made a report to Parent’s chief legal officer, chief executive officer or Board of Directors (or any committee thereof) pursuant to the SEC’s Standards of Professional Conduct for Attorneys (17 CFR Part 205), and (iii) Parent has disclosed to its outside auditors any fraud, whether or not material, of which there is Parent’s Knowledge that involves management or other employees who have a significant role in Parent’s internal control over financial reporting.

Appears in 2 contracts

Sources: Merger Agreement (Envision Healthcare Holdings, Inc.), Merger Agreement (Amsurg Corp)

SEC Documents; Financial Statements; Undisclosed Liabilities. ~~(a) Parent has~~ EWR and EWR Partnership have filed all required reports, schedules, ~~forms~~ forms, statements and ~~registration statements~~ other documents with the SEC ~~required to be~~ since August 17, 1994 through the date hereof (the "EWR SEC Documents"). Schedule 2.6 of the EWR Disclosure Letter contains a complete list of all EWR SEC Documents filed by ~~it pursuant to~~ EWR or EWR Partnership with the ~~Securities Act and the Securities Act Rules, or the Exchange Act and the Exchange Act Rules, in each such case~~ SEC since January 1, ~~2005 (collectively,~~ 1997 and ~~in each case including all annexes and schedules thereto and documents incorporated by reference therein, the “Parent SEC Documents”). As of their respective dates (~~on or ~~if subsequently amended or superseded by a filing~~ prior to the date of this Agreement~~, on~~ . All of the ~~date of such filing~~EWR SEC Documents (other than preliminary material), ~~the Parent SEC Documents~~ as of their respective filing dates, complied ~~as to form~~ in all material respects with ~~the~~ all applicable requirements of the Securities Act or and the Securities Exchange Act of 1934, as amended (the "Exchange Act"), ~~as the case may be~~and, ~~and~~ in each case, the rules and regulations ~~of the SEC~~ promulgated thereunder applicable to such ~~Parent~~ EWR SEC Documents~~, and none~~ . None of the ~~Parent~~ EWR SEC Documents as at the time of ~~such dates~~ filing contained any untrue statement of a material fact or omitted to state a any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading~~. To Parent’s Knowledge~~, ~~as of~~ except to the extent such statements have been modified or superseded by later EWR SEC Documents filed and publicly available prior to the date ~~hereof, none~~ of this Agreement. The consolidated financial statements of EWR included in the ~~Parent~~ EWR SEC Documents is or of EWR Partnership included in the ~~subject of ongoing~~ EWR SEC ~~review. (b) Parent is in compliance with, and has complied,~~ Documents complied as to form in all material respects with ~~(i) the~~ applicable ~~provisions of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002~~ accounting requirements and the related rules and regulations promulgated thereunder, and (ii) the applicable listing and corporate governance rules and regulations of NASDAQ. Parent has established and maintains disclosure controls and procedures and internal control over financial reporting (as such terms are defined in paragraphs (e) and (f), respectively, of Rule 13a-15 under the Exchange Act) as required by Rule 13a-15 under the Exchange Act. Parent’s disclosure controls and procedures are reasonably designed to ensure that all material information required to be disclosed by Parent in the reports that it files or furnishes under the Exchange Act is recorded, processed, summarized and reported within the time periods specified in the rules and forms of the SEC, and that all such material information is accumulated and communicated to the management of Parent as appropriate to allow timely decisions regarding required disclosure and to make the certifications required pursuant to Sections 302 and 906 of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act. The management of Parent has completed its assessment of the effectiveness of Parent’s internal control over financial reporting in compliance with the requirements of Section 404 of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act for the year ended December 31, 2006, and such assessment concluded that such controls were effective to provide reasonable assurance regarding the reliability of Parent’s financial reporting and the preparation of Parent’s financial statements for external purposes in accordance with GAAP. Parent has disclosed, based on its assessment of the effectiveness of Parent’s internal control over financial reporting in compliance with the requirements of Section 404 of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act for the year ended December 31, 2006, to Parent’s independent registered accounting firm and the audit committee of the Board of Directors of Parent (A) any significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect Parent’s ability to record, process, summarize and report financial information and (B) any fraud, whether or not material, of which there is Parent’s Knowledge that involves management or other employees who have a significant role in Parent’s internal control over financial reporting for the year ended December 31, 2006. Parent any has made available to the Company a summary of any such disclosures made by management to such accounting firm or audit committee for the year ended December 31, 2006. (c) The consolidated financial statements of Parent included in the Parent SEC Documents (the “Parent SEC Financial Statements”) (i) have been prepared in accordance with GAAP (except as may be otherwise indicated therein or in the notes thereto and except, in the case of unaudited consolidated quarterly statements, as permitted by Form 10-Q of the Exchange Act), applied on a consistent basis during the periods involved, (ii) complied in all material respects with published rules and regulations of the SEC with respect thereto, have been prepared in accordance with generally accepted accounting principles ("GAAP") (except, in the case of unaudited statements, as permitted by the applicable rules and regulations of the SEC) applied on a consistent basis during the periods involved (~~iii~~except as may be indicated in the notes thereto) and fairly ~~present~~ presented, in ~~all material respects~~ accordance with the applicable requirements of GAAP and the applicable rules and regulations of the SEC, the consolidated financial position of ~~Parent~~ EWR and its ~~consolidated Parent~~ Subsidiaries or EWR Partnership and its Subsidiaries, as the case may be, in each case taken as a whole, as of the ~~respective~~ dates thereof and the consolidated ~~statements~~ results of ~~income,~~ operations and cash flows ~~and changes in stockholders’ equity~~ for the ~~respective~~ periods then ended (subject, in the case of unaudited ~~quarterly~~ statements, to normal year-end audit ~~adjustments~~ adjustments). Except as set forth in Schedule 2.7 of the EWR Disclosure Letter, EWR has no Subsidiaries which are not consolidated for accounting purposes. Except for liabilities and obligations set forth in the ~~absence of footnotes). (d) As of March 31, 2007~~EWR SEC Documents or in Schedule 2.6 to the EWR Disclosure Letter, neither ~~Parent~~ EWR nor any of the ~~Parent~~ EWR Subsidiaries ~~had~~ has any liabilities or obligations ~~that would have been~~ of any nature (whether accrued, absolute, contingent or otherwise) required by GAAP to be ~~reflected in the~~ set forth on a consolidated balance sheet of ~~Parent and the Parent Subsidiaries as of such date, except (i) for such liabilities and obligations reflected, reserved against~~ EWR or ~~otherwise disclosed~~ in the ~~consolidated balance sheet of Parent~~ notes thereto and the Parent Subsidiaries as of such date (including the notes thereto) that is included in the Parent SEC Financial Statements and (ii) for such liabilities and obligations as would not be reasonably expected to havewhich, individually or in the aggregate, would have a ~~Parent~~ EWR Material Adverse Effect (it is understood and agreed that the representations and warranties contained in this Section 5.5(d): (x) do not apply to matters described in any of Section 5.4, the other provisions of this Section 5.5, and Sections 5.7, 5.8, 5.9, 5.10, 5.11 and 5.17 (which are addressed exclusively in those Sections) and (y) shall not be deemed breached if such breach relates to a matter which is covered by a representation or warranty of Parent and Merger Sub contained in this Article V (other than this Section 5.5(d)) that contains a “Parent’s Knowledge” qualification)Effect. (e) Since December 31, 2006 to the date of this Agreement, (i) neither Parent nor any Parent Subsidiary nor, to Parent’s Knowledge, any director, officer, auditor, accountant or representative of Parent or any of the Parent Subsidiaries has received any written complaint, allegation, assertion or claim that Parent or any of the Parent Subsidiaries has engaged in improper or illegal accounting or auditing practices or maintains improper or inadequate internal accounting controls relating to Parent and the Parent Subsidiaries, taken as a whole, (ii) no attorney representing Parent or any Parent Subsidiary has made a report to Parent’s chief legal officer, chief executive officer or Board of Directors (or any committee thereof) pursuant to the SEC’s Standards of Professional Conduct for Attorneys (17 CFR Part 205), and (iii) Parent has disclosed to its outside auditors any fraud, whether or not material, of which there is Parent’s Knowledge that involves management or other employees who have a significant role in Parent’s internal control over financial reporting.

Appears in 2 contracts

Sources: Merger Agreement (Equity Residential Properties Trust), Merger Agreement (Evans Withycombe Residential Inc)

SEC Documents; Financial Statements; Undisclosed Liabilities. (a) Parent has filed or furnished all ~~reports~~forms, ~~schedules, forms~~ reports and ~~registration statements with the SEC~~ other documents required to be filed or furnished by ~~it pursuant to~~ Parent with the SEC under the Securities Act ~~and the Securities Act Rules,~~ or the Exchange Act ~~and the Exchange Act Rules, in each~~ (all such ~~case since January 1, 2005 (collectively, and in each case including all annexes and schedules thereto and~~ documents ~~incorporated~~ filed or furnished by ~~reference therein~~Parent, the “Parent SEC Documents”)) since January 1, 2019. None of the Subsidiaries of Parent is required to make any filings with the SEC. (b) As of ~~their~~ its respective ~~dates~~ filing date (or or, if ~~subsequently~~ amended or superseded ~~by a filing~~ prior to the date of this Agreement, on the date of such filing~~), the~~ ) each Parent SEC ~~Documents~~ Document complied as to form in all material respects with the requirements of the ~~Securities Act or~~ SOX, the Exchange Act, and the Securities Act, as the case may be, and the rules and regulations of the SEC promulgated thereunder applicable to such Parent SEC ~~Documents~~Document, and ~~none~~ did not, at the time it was filed or furnished (or, if amended or superseded prior to the date of this Agreement, on the ~~Parent SEC Documents as~~ date of such ~~dates contained~~ filing), contain any untrue statement of a material fact or ~~omitted~~ omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading~~. To Parent’s Knowledge, as~~ . (c) Each of the ~~date hereof, none~~ consolidated financial statements of Parent included in the Parent SEC Documents is (including, in each case, any notes thereto) was prepared in accordance with GAAP applied on a consistent basis throughout the ~~subject~~ periods indicated (except as may be indicated in notes thereto or, in the case of ~~ongoing SEC review. (b~~unaudited statements, as permitted by the rules and regulations of the SEC) ~~Parent is in compliance with,~~ and ~~has complied~~each fairly presented, in all material ~~respects with~~ respects, the consolidated financial position, the results of operations, cash flows and changes in shareholders’ equity of Parent and its Subsidiaries as and at the respective dates thereof and for the respective periods indicated therein (subject, in the case of unaudited interim statements, to normal year-end audit adjustments). Except as have been described in the Parent SEC Documents, there are no unconsolidated Subsidiaries of Parent or any off-balance sheet arrangements of the type required to be disclosed pursuant to Item 303 of Regulation S-K promulgated by the SEC. (d) Except as and to the extent set forth in the audited consolidated balance sheet of Parent and its consolidated Subsidiaries as of December 31, 2021, including the notes thereto, neither Parent nor any Subsidiary of Parent has any liability or obligation of any nature (whether accrued, absolute, contingent or otherwise) required to be disclosed by GAAP, except for liabilities or obligations (i) incurred since December 31, 2021, in the ~~applicable provisions~~ ordinary course of business, (ii) in the form of executory obligations under any Contract to which Parent is a party or is bound and that are not in the nature of material breaches of such Contracts, (iii) do not result from a breach of Contract (including any representation or warranty therein), breach of warranty, violation of Law, infringement, misappropriation, or other tort, (iv) incurred in connection with fees and expenses of legal counsel, accountants and other third party advisors or services providers, (v) incurred in connection with the preparation and negotiation of this Agreement or pursuant to this Agreement or in connection with the Transactions, or (vi) that would not reasonably be expected to have, individually or in the aggregate, a Parent Material Adverse Effect. (e) Each of the ~~▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act~~ principal executive officer of ~~2002~~ Parent and the ~~related~~ principal financial officer of Parent (and each former principal executive officer of Parent and each former principal financial officer of Parent, as applicable) has made all certifications required by Rule 13a-14 or 15d-14 under the Exchange Act and 18 U.S.C. Section 1350 (Section 906 of the SOX) and the rules and regulations promulgated ~~thereunder~~thereunder with respect to Parent SEC Documents filed or furnished with the SEC, and prior to the date of this Agreement, neither Parent nor any of its executive officers has received written notice from any Governmental Entity challenging or questioning the accuracy, completeness, form or manner of filing such certifications. For purposes of this Section 3.6(f), “principal executive officer” and “principal financial officer” have the meanings given to such terms in SOX. Neither Parent nor any of the Subsidiaries of Parent has outstanding, or has arranged any outstanding “extensions of credit” to directors or executive officers within the meaning of Section 402 of SOX. (f) Parent has implemented, and at all time since January 1, 2019, has maintained a system of financial controls over financial reporting designed to provide reasonable assurances regarding the reliability of financial reporting and the preparation of financial statements for external purposes, including to provide reasonable assurance: (i) that transactions are executed in accordance with management’s general or special authorizations; (ii) that transactions are recorded as necessary to permit preparation of financial statements in conformity with GAAP; (iii) regarding prevention or timely detection of unauthorized acquisition, use or disposition of the assets of Parent and its Subsidiaries, as applicable, that could have a material effect on Parent’s financial statements; (iv) that the maintenance of records in reasonable detail accurately and fairly reflect the transactions and dispositions of the assets of Parent on a consolidated basis; and (v) that the recorded accountability for assets is compared with the existing assets at reasonable intervals and appropriate action is taken with respect to any differences. (g) Parent and its Subsidiaries keep books, records and accounts which, in reasonable detail, accurately and fairly reflect the transactions and dispositions of the assets of Parent or Subsidiary, and maintains a system of internal accounting controls sufficient to provide reasonable assurances that: (w) transactions are executed in accordance with management’s general or specific authorization; (x) transactions are recorded as necessary to permit preparation of financial statements in conformity with generally accepted accounting principles or any other criteria applicable ~~listing~~ to such statements, and ~~corporate governance rules~~ to maintain accountability for assets; (y) access to assets is permitted only in accordance with management’s general or specific authorization; and ~~regulations of NASDAQ.~~ (z) the recorded accountability for assets is compared with the existing assets at reasonable intervals and appropriate action is taken with respect to any differences. (h) Parent has ~~established~~ (i) implemented and ~~maintains~~ maintained “disclosure controls and ~~procedures and internal control over financial reporting~~ procedures” (as ~~such terms are~~ defined in ~~paragraphs (e~~Rules 13a-15(e) and ~~(f), respectively,~~ 15d-15(e) of ~~Rule 13a-15 under~~ the Exchange Act) ~~as required by Rule 13a-15 under the Exchange Act. Parent’s disclosure controls and procedures~~ that are ~~reasonably~~ designed to ensure that ~~all~~ material information that is required to be disclosed by Parent in the reports that it files or ~~furnishes~~ submits under the Exchange ~~Act~~ Act, is recorded, processed, summarized and reported within the time periods specified in the rules and forms of the ~~SEC,~~ SEC and ~~that all such material information~~ is accumulated and ~~communicated~~ made known to ~~the management of Parent~~ its principal executive officer and principal financial officer as appropriate to allow timely decisions regarding required disclosure and to make the certifications required pursuant to Sections 302 and 906 of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act. The management of Parent has completed its assessment of the effectiveness of Parent’s internal control over financial reporting in compliance with the requirements of Section 404 of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act for the year ended December 31, 2006, and such assessment concluded that such controls were effective to provide reasonable assurance regarding the reliability of Parent’s financial reporting and the preparation of Parent’s financial statements for external purposes in accordance with GAAP. Parent has (ii) disclosed, based on its ~~assessment~~ most recent evaluation prior to the date of the effectiveness of Parent’s internal control over financial reporting in compliance with the requirements of Section 404 of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act for the year ended December 31, 2006, this Agreement to Parent’s ~~independent registered accounting firm~~ outside auditors and the audit committee of the ~~Board of Directors of~~ Parent Board, (A) any significant deficiencies and material weaknesses in the design or operation of “internal control over financial ~~reporting which are~~ reporting” (as defined in Rules 13a-15(f) and 15d-15(f) of the Exchange Act) that would be reasonably likely to adversely affect in any material way Parent’s ability to record, process, summarize and report financial information and (B) any fraud, whether or not material, ~~of which there is Parent’s Knowledge~~ that involves management or other employees who have a significant role in Parent’s “internal control over financial reporting.” Any material change in internal control over financial reporting ~~for the year ended December 31, 2006.~~ required to be disclosed in any Parent ~~any has made available~~ SEC Document on or prior to the ~~Company a summary~~ date of ~~any such disclosures made by management to such accounting firm or audit committee for the year ended December 31, 2006~~this Agreement has been so disclosed. (~~c) The consolidated financial statements of Parent included in the Parent SEC Documents (the “Parent SEC Financial Statements”) (~~i) have been prepared in accordance with GAAP (except as may be otherwise indicated therein or in the notes thereto and except, in the case of unaudited consolidated quarterly statements, as permitted by Form 10-Q of the Exchange Act), applied on a consistent basis during the periods involved, (ii) complied in all material respects with published rules and regulations of the SEC with respect thereto, and (iii) fairly present in all material respects the consolidated financial position of Parent and its consolidated Parent Subsidiaries as of the respective dates thereof and the consolidated statements of income, cash flows and changes in stockholders’ equity for the respective periods then ended (subject, in the case of unaudited quarterly statements, to normal year-end audit adjustments and the absence of footnotes). (d) As of March 31, 2007, neither Parent nor any of the Parent Subsidiaries had any liabilities or obligations that would have been required by GAAP to be reflected in the consolidated balance sheet of Parent and the Parent Subsidiaries as of such date, except (i) for such liabilities and obligations reflected, reserved against or otherwise disclosed in the consolidated balance sheet of Parent and the Parent Subsidiaries as of such date (including the notes thereto) that is included in the Parent SEC Financial Statements and (ii) for such liabilities and obligations as would not be reasonably expected to have, individually or in the aggregate, a Parent Material Adverse Effect (it is understood and agreed that the representations and warranties contained in this Section 5.5(d): (x) do not apply to matters described in any of Section 5.4, the other provisions of this Section 5.5, and Sections 5.7, 5.8, 5.9, 5.10, 5.11 and 5.17 (which are addressed exclusively in those Sections) and (y) shall not be deemed breached if such breach relates to a matter which is covered by a representation or warranty of Parent and Merger Sub contained in this Article V (other than this Section 5.5(d)) that contains a “Parent’s Knowledge” qualification). (e) Since December 31, 2006 to the date of this Agreement, (i) there are no outstanding unresolved comments with respect to Parent or the Parent SEC Documents filed or furnished with the SEC noted in comment letters or, to the Knowledge of Parent, other correspondence received by Parent or its attorneys from the SEC and (ii) there are no pending or threatened (A) formal or informal investigation or other review of, or Proceeding against, Parent or any of its directors or officers by the SEC or (B) inspection of an audit of Parent’s financial statements by the Public Company Accounting Oversight Board. (j) Neither Parent nor any of the Subsidiaries of Parent is a party to, or has any commitment to become a party to, any joint venture, off-balance sheet partnership or any similar Contract (including any Contract or arrangement relating to any transaction or relationship between or among Parent and any of the Subsidiaries of Parent, on the one hand, and any unconsolidated affiliate, including any structured finance, special purpose or limited purpose entity or Person, on the other hand, or any “off-balance sheet arrangements” (as contemplated by Instruction 8 to Item 303(b) of Regulation S-K under 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, Parent or any of the Subsidiaries of Parent in Parent’s or such Subsidiary’s published financial statements or the Parent SEC Documents. (k) Since January 1, 2019, none of Parent, the Parent Board or the audit committee of the Parent Board has received any oral or written notification of any (A) “significant deficiency” in the internal controls over financial reporting of Parent, (B) “material weakness” in the internal controls over financial reporting of Parent or (C) fraud, whether or not material, that involves management or other employees of Parent who have a significant role in the internal controls over financial reporting of Parent (l) Since January 1, 2019, (i) neither Parent nor any ~~Parent Subsidiary nor~~of its Subsidiaries or any of their respective Representatives has received any complaint, ~~to Parent’s Knowledge~~allegation, ~~any director~~assertion or claim, ~~officer~~whether written or oral, ~~auditor~~regarding the accounting or auditing practices, ~~accountant~~ procedures, methodologies or ~~representative~~ methods of Parent or any of ~~the Parent~~ its Subsidiaries ~~has received~~ or their respective internal accounting controls, including any ~~written~~ complaint, allegation, assertion or claim that Parent or any of ~~the Parent~~ its Subsidiaries has engaged in ~~improper or illegal~~ questionable accounting or auditing ~~practices or maintains improper or inadequate internal accounting controls relating~~ practices, in each case which set forth allegations of circumstances that if determined to be true, would be material to Parent and ~~the Parent~~ its Subsidiaries, taken as a whole, and (ii) no attorney representing Parent or any of its Subsidiaries has reported evidence of a material violation of securities Laws, breach of fiduciary duty or similar violation by Parent ~~Subsidiary has made a report~~ or any of its Representatives to ~~Parent’s chief legal officer, chief executive officer or~~ the Parent Board ~~of Directors (~~or any committee ~~thereof)~~ thereof or to any non-employee director or the Chief Executive Officer of Parent pursuant to ~~the SEC’s Standards~~ Section 307 of Professional Conduct for Attorneys (17 CFR Part 205), and (iii) Parent has disclosed to its outside auditors any fraud, whether or not material, of which there is Parent’s Knowledge that involves management or other employees who have a significant role in Parent’s internal control over financial reportingSOX.

Appears in 2 contracts

Sources: Merger Agreement (Maxlinear Inc), Merger Agreement (Maxlinear Inc)

SEC Documents; Financial Statements; Undisclosed Liabilities. (a) ~~Parent~~ The Company has filed or furnished all reports, schedules, ~~forms~~ forms, statements, registration statements, prospectuses and ~~registration statements with the SEC~~ other documents required to be filed or furnished by ~~it pursuant to~~ the Company with the SEC under the Securities Act ~~and the Securities Act Rules,~~ or the Exchange Act ~~and the Exchange Act Rules~~since September 30, ~~in each such case since January 1, 2005~~ 2021 (~~collectively, and in each case including all annexes and schedules thereto and documents incorporated by reference therein,~~ the “~~Parent~~ Company SEC Documents”). None of the Subsidiaries of the Company is or has at any time since September 30, 2021, been subject to the reporting requirements of Section 13(a) or Section 15(d) of the Exchange Act. (b) As of ~~their~~ its respective ~~dates~~ filing date (or or, if ~~subsequently~~ amended or superseded ~~by a filing~~ prior to the date of this Agreement, on the date of such filing), ~~the Parent~~ each Company SEC ~~Documents~~ Document complied as to form in all material respects with the requirements of the Exchange Act, the Securities Act or and the ~~Exchange~~ S▇▇▇▇▇▇▇-▇▇▇▇▇ Act, as the case may be, ~~and~~ the rules and regulations of the SEC promulgated ~~thereunder~~ thereunder, and the requirements of the Nasdaq applicable to such ~~Parent~~ Company SEC ~~Documents~~Document, and ~~none of the Parent SEC Documents as of such dates contained~~ did not contain any untrue statement of a material fact or ~~omitted~~ omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, and each Company SEC Document filed or furnished subsequent to the date of this Agreement will comply, in all material respects, with the applicable requirements of the Exchange Act, the Securities Act and the S▇▇▇▇▇▇▇-▇▇▇▇▇ Act, as the case may be, the applicable rules and regulations of the SEC promulgated thereunder, and the applicable requirements of the Nasdaq. ~~To Parent’s Knowledge~~As of the date of this Agreement, there are no outstanding or unresolved comments received from the SEC with respect to any Company SEC Documents that would be required to be disclosed under Item 1B of Form 10-K under the Exchange Act. (c) The consolidated financial statements of the Company included in the Company SEC Documents (including, in each case, any notes or schedules thereto) (the “Company SEC Financial Statements”) (i) fairly present, in all material respects, the financial condition and the results of operations, cash flows and changes in stockholders’ equity deficit of the Company and its Subsidiaries (on a consolidated basis) as of the ~~date hereof~~respective dates of and for the periods referred to in the Company SEC Financial Statements, ~~none~~ (ii) were prepared in accordance with GAAP as applied by the Company (except as may be indicated in the notes thereto or, in the case of unaudited statements, as permitted by Form 10-Q of the ~~Parent~~ SEC), subject, in the case of interim Company SEC ~~Documents is~~ Financial Statements, to normal year-end adjustments and the ~~subject~~ absence of ~~ongoing~~ notes and other presentation items as permitted by the applicable rules and regulations of the SEC ~~review.~~ and (biii) ~~Parent is in compliance with, and has complied,~~ comply as to form in all material respects with ~~(i)~~ the ~~applicable provisions of~~ Securities Act, the ▇Exchange Act, the S▇▇▇▇▇▇▇-▇▇▇▇▇ Act ~~of 2002~~ and ~~the related rules and regulations promulgated thereunder, and (ii) the applicable listing and corporate governance~~ published rules and regulations of ~~NASDAQ. Parent~~ the SEC with respect thereto. (d) The Company has ~~established~~ timely filed all certifications and ~~maintains disclosure controls and procedures and internal control over financial reporting~~ statements required by (~~as such terms are defined in paragraphs (e~~i) ~~and (f), respectively, of~~ Rule ~~13a-15~~ 13a-14 or Rule 15d-14 under the Exchange Act; or (ii) as required by Rule 13a-15 under the Exchange Act. Parent’s disclosure controls and procedures are reasonably designed to ensure that all material information required to be disclosed by Parent in the reports that it files or furnishes under the Exchange Act is recorded, processed, summarized and reported within the time periods specified in the rules and forms of the SEC, and that all such material information is accumulated and communicated to the management of Parent as appropriate to allow timely decisions regarding required disclosure and to make the certifications required pursuant to Sections 302 and 18 U.S.C. Section 1350 (Section 906 of the ▇S▇▇▇▇▇▇▇-▇▇▇▇▇ Act) with respect to all applicable Company SEC Documents. The ~~management of Parent has completed~~ Company maintains disclosure controls and procedures required by Rule 13a-15 or Rule 15d-15 under the Exchange Act, which controls and procedures are designed to ensure that all material information concerning the Company and its ~~assessment~~ Subsidiaries is made known on a timely basis to the individuals responsible for the preparation of the ~~effectiveness~~ Company SEC Documents. The Company has established and maintains a system of ~~Parent’s~~ internal ~~control over financial reporting in compliance~~ accounting controls that comply with the requirements of ~~Section 404 of~~ the ~~▇▇▇▇▇▇▇▇-▇▇▇▇▇~~ Exchange Act ~~for~~ and that have been designed by, or under the ~~year ended December 31~~supervision of, ~~2006~~their respective principal executive and principal financial officers, ~~and such assessment concluded that such controls were effective~~ to provide reasonable assurance regarding the reliability of ~~Parent’s~~ financial reporting and the preparation of ~~Parent’s~~ financial statements ~~for external purposes~~ in accordance with GAAP~~. Parent has disclosed~~, based on its assessment of the effectiveness of Parent’s internal control over financial reporting in compliance with the requirements of Section 404 of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act for the year ended December 31, 2006, to Parent’s independent registered accounting firm including policies and ~~the audit committee of the Board of Directors of Parent~~ procedures that (A) require the maintenance of records that in reasonable detail accurately and fairly reflect the transactions and dispositions of the assets of the Company, (B) provide reasonable assurance that transactions are recorded as necessary to permit preparation of financial statements in accordance with GAAP and that receipts and expenditures of the Company are being made only in accordance with appropriate authorizations of the Company’s management and the Company Board and (C) provide reasonable assurance regarding prevention or timely detection of unauthorized acquisition, use or disposition of the assets of the Company that could have a material effect on its financial statements. From the date of the filing of the Company’s Annual Report on Form 10-K for the fiscal year ended September 30, 2021 to the date of this Agreement, neither the Company’s auditors, to the Knowledge of the Company, nor the Company has been advised in writing of (1) any “significant ~~deficiencies and~~ deficiencies” or “material ~~weaknesses~~ weaknesses” (each as defined in Rule 12b-2 of the ~~design or operation~~ Exchange Act) identified in management’s assessment of internal control over financial reporting ~~which are reasonably likely to adversely affect Parent’s ability to record~~as of and for the year ended September 30, ~~process, summarize and report financial information and~~ 2021 (Bnor has any such deficiency or weakness been identified as of the date hereof) or (2) any fraud, whether or not material, ~~of which there is Parent’s Knowledge~~ that involves management or other employees who have a significant role in ~~Parent~~the Company’s internal control over financial ~~reporting for the year ended December 31~~reporting, ~~2006. Parent any has made available~~ and, in each case, to the Company a summary of any such disclosures made by management to such accounting firm or audit committee for the year ended December 31, 2006. (c) The consolidated financial statements of Parent included in the Parent SEC Documents (the “Parent SEC Financial Statements”) (i) have been prepared in accordance with GAAP (except as may be otherwise indicated therein or in the notes thereto and except, in the case of unaudited consolidated quarterly statements, as permitted by Form 10-Q Knowledge of the Exchange Act), applied on a consistent basis during the periods involved, (ii) complied in all material respects with published rules and regulations of the SEC with respect thereto, and (iii) fairly present in all material respects the consolidated financial position of Parent and its consolidated Parent Subsidiaries as of the respective dates thereof and the consolidated statements of income, cash flows and changes in stockholders’ equity for the respective periods then ended (subject, in the case of unaudited quarterly statements, to normal year-end audit adjustments and the absence of footnotes). (d) As of March 31, 2007Company, neither ~~Parent~~ the Company nor any of its Representatives has failed to disclose such information to the ~~Parent Subsidiaries had any liabilities~~ Company’s auditors or ~~obligations that would have been required by GAAP to be reflected in~~ the consolidated balance sheet of Parent and the Parent Subsidiaries as of such date, except (i) for such liabilities and obligations reflected, reserved against or otherwise disclosed in the consolidated balance sheet of Parent and the Parent Subsidiaries as of such date (including the notes thereto) that is included in the Parent SEC Financial Statements and (ii) for such liabilities and obligations Company Board. Except as would ~~not be reasonably expected to have~~not, individually or in the aggregate, reasonably be expected to have a ~~Parent~~ Company Material Adverse ~~Effect (it is understood and agreed that the representations and warranties contained in this Section 5.5(d): (x) do not apply to matters described in any of Section 5.4~~Effect, since September 30, 2021, the ~~other provisions~~ Company has been in compliance with the applicable listing and corporate governance rules and regulations of this Section 5.5, and Sections 5.7, 5.8, 5.9, 5.10, 5.11 and 5.17 (which are addressed exclusively in those Sections) and (y) shall not be deemed breached if such breach relates to a matter which is covered by a representation or warranty of Parent and Merger Sub contained in this Article V (other than this Section 5.5(d)) that contains a “Parent’s Knowledge” qualification)the Nasdaq. (e) ~~Since December 31~~The Company and its Subsidiaries do not have any liabilities or obligations of any nature (whether absolute or contingent, ~~2006~~ asserted or unasserted, known or unknown, primary or secondary, direct or indirect, and whether or not accrued), required by GAAP to be reflected or reserved on a consolidated balance sheet of the ~~date of this Agreement,~~ Company (or the notes thereto) except (i) ~~neither Parent nor any Parent Subsidiary nor~~as disclosed, ~~to Parent’s Knowledge, any director, officer, auditor, accountant~~ reflected or ~~representative of Parent~~ reserved against in the most recent balance sheet included in the Company SEC Financial Statements or ~~any of~~ the Parent Subsidiaries has received any written complaint, allegation, assertion or claim that Parent or any of the Parent Subsidiaries has engaged in improper or illegal accounting or auditing practices or maintains improper or inadequate internal accounting controls relating to Parent and the Parent Subsidiaries, taken as a wholenotes thereto, (ii) ~~no attorney representing Parent~~ for liabilities and obligations incurred in the ordinary course of business since the date of the most recent balance sheet included in the Company SEC Financial Statements, none of which (A) individually or ~~any Parent Subsidiary~~ in the aggregate, has ~~made~~ had or would reasonably be expected to have a ~~report~~ Company Material Adverse Effect or (B) are liabilities directly or indirectly related to ~~Parent’s chief legal officer~~a material breach of Contract, ~~chief executive officer~~ breach of warranty, tort, infringement, Proceeding or ~~Board~~ violation of ~~Directors~~ or non-compliance with Law, (iii) for liabilities and obligations arising out of or ~~any committee thereof) pursuant~~ in connection with this Agreement, the Merger or the Transactions, to the ~~SEC’s Standards of Professional Conduct for Attorneys (17 CFR Part 205)~~extent permitted or contemplated by this Agreement, and (~~iii~~iv) ~~Parent has disclosed~~ for other liabilities and obligations that, individually or in the aggregate, have not had and would not reasonably be expected to ~~its outside auditors any fraud, whether or not material, of which there is Parent’s Knowledge that involves management or other employees who~~ have a ~~significant role in Parent’s internal control over financial reporting~~Company Material Adverse Effect.

Appears in 2 contracts

Sources: Merger Agreement (Emcore Corp), Merger Agreement (Emcore Corp)

SEC Documents; Financial Statements; Undisclosed Liabilities. (a) ~~Parent~~ Sarg has timely filed or furnished all reports, schedules, ~~forms~~ forms, statements, registration statements, prospectuses and ~~registration statements with the SEC~~ other documents required to be filed or furnished by ~~it pursuant to~~ Sarg with the SEC under the Securities Act ~~and the Securities Act Rules,~~ or the Exchange Act ~~and the Exchange Act Rules, in each such case~~ since January 1, ~~2005~~ 2015 (~~collectively, and in each case including all annexes and schedules thereto and documents incorporated by reference therein,~~ the “~~Parent~~ Sarg SEC Documents”). None of the Subsidiaries of Sarg is required to make or makes any filings with the SEC. (b) As of ~~their~~ its respective ~~dates (or~~ filing date, and, if ~~subsequently amended or superseded by a filing~~ amended, as of the date of the last amendment prior to the date of this Agreement, ~~on the date of such filing), the Parent~~ each Sarg SEC ~~Documents~~ Document complied ~~as to form~~ in all material respects with the requirements of the ~~Securities~~ Exchange Act or the ~~Exchange~~ Securities Act, as the case may be, and the rules and regulations of the SEC promulgated thereunder applicable to such ~~Parent~~ Sarg SEC ~~Documents,~~ Document and ~~none of the Parent SEC Documents as of such dates contained~~ did not contain any untrue statement of a material fact or ~~omitted~~ omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading~~. To Parent~~. (c) The consolidated financial statements of Sarg included in the Sarg SEC Documents (including, in each case, any notes or schedules thereto) and all related compilations, reviews and other reports issued by Sarg’s ~~Knowledge~~accountants with respect thereto (the “Sarg SEC Financial Statements”), as of their respective dates of filing with the SEC, comply as to form in all material respects with applicable accounting requirements and the published rules and regulations of the SEC with respect thereto. The Sarg SEC Financial Statements fairly present, in all material respects, the financial condition and the results of operations, cash flows and changes in shareholders’ equity of Sarg (on a consolidated basis) as of the respective dates of and for the periods referred to in the Sarg SEC Financial Statements, and were prepared in accordance with GAAP applied on a consistent basis during the periods involved (except as may be indicated in the notes thereto), subject, in the case of interim Sarg SEC Financial Statements, to normal year-end adjustments (which are not material in significance or amount) and the absence of notes. The books and records of Sarg and its Subsidiaries are accurate and complete, in all material respects, have been maintained in accordance with sound business practices and accurately present and reflect in all material respects all of the transactions and actions therein described and the Sarg SEC Financial Statements have been prepared, in all material respects, in accordance with such books and records. No financial statements of any Person other than Sarg and its Subsidiaries are required by GAAP to be included in the consolidated financial statements of Sarg. Except as required by GAAP, Sarg has not, between June 30, 2017 and the date ~~hereof~~of this Agreement, ~~none of the Parent SEC Documents is the subject of ongoing SEC review~~made or adopted any material change in its accounting methods, practices or policies in effect on June 30, 2017. (bd) ~~Parent~~ Sarg is in compliance ~~with, and has complied,~~ in all material respects with (i) the applicable provisions of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002 and the related rules and regulations promulgated ~~thereunder,~~ thereunder or under the Exchange Act (the “▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act”) and (ii) the applicable listing and corporate governance rules and regulations of the NASDAQ. (e) Sarg has made available to Cardinal true and complete copies of all written comment letters from the staff of the SEC received since January 1, 2015 relating to the Sarg SEC Documents and all written responses of Sarg thereto other than with respect to requests for confidential treatment or which are otherwise publicly available on the SEC’s ▇▇▇▇▇ system. ~~Parent~~ To the Knowledge of Sarg, there are no outstanding or unresolved comments in comment letters received from the SEC staff with respect to any Sarg SEC Documents and none of the Sarg SEC Documents (other than confidential treatment requests) is the subject of ongoing SEC review. There are no internal investigations, any SEC inquiries or investigations or other governmental inquiries or investigations, to the Knowledge of Sarg, pending or threatened, in each case regarding any accounting practices of Sarg. (f) Sarg has established and maintains disclosure controls and procedures and internal control over financial reporting (as such terms are defined in paragraphs (e) and (f), respectively, of Rule 13a-15 and paragraph (e) of Rule 15d-15 under the Exchange Act) as required by ~~Rule~~ Rules 13a-15 and 15d-15 under the Exchange Act. ~~Parent~~Sarg’s disclosure controls and procedures are ~~reasonably~~ designed to ensure that all ~~material~~ information (both financial and non-financial) required to be disclosed by ~~Parent~~ Sarg in the reports that it files or furnishes under the Exchange Act is recorded, processed, summarized and reported within the time periods specified in the rules and forms of the SEC, and that all such ~~material~~ information is accumulated and communicated to ~~the~~ Sarg’s management ~~of Parent~~ as appropriate to allow timely decisions regarding required disclosure and to make the certifications required pursuant to Sections 302 and 906 of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act. ~~The~~ Sarg’s management ~~of Parent~~ has completed ~~its~~ an assessment of the effectiveness of ~~Parent~~Sarg’s disclosure controls and procedures and, to the extent required by applicable Law, presented in any applicable Sarg SEC Document that is a report on Form 10-K or Form 10-Q, or any amendment thereto, its conclusions about the effectiveness of the disclosure controls and procedures as of the end of the period covered by such report or amendment based on such evaluation. Based on Sarg’s management’s most recently completed evaluation of Sarg’s internal control over financial reporting ~~in compliance with~~ prior to the ~~requirements of Section 404 of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act for the year ended December 31~~date hereof, 2006, and such assessment concluded that such controls were effective to provide reasonable assurance regarding the reliability of Parent’s financial reporting and the preparation of Parent’s financial statements for external purposes in accordance with GAAP. Parent has disclosed, based on its assessment of the effectiveness of Parent’s internal control over financial reporting in compliance with the requirements of Section 404 of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act for the year ended December 31, 2006, to Parent’s independent registered accounting firm and the audit committee of the Board of Directors of Parent (Ai) ~~any~~ Sarg had no significant deficiencies ~~and~~ or material weaknesses in the design or operation of its internal control over financial reporting ~~which are~~ that would reasonably ~~likely~~ be expected to adversely affect ~~Parent~~Sarg’s ability to record, process, summarize and report financial information and (Bii) Sarg does not have Knowledge of any fraud, whether or not material, ~~of which there is Parent’s Knowledge~~ that involves management or other employees who have a significant role in ~~Parent~~Sarg’s internal control over financial ~~reporting for~~ reporting. Since January 1, 2015, none of Sarg, Sarg’s auditors, the ~~year ended December 31, 2006. Parent~~ Sarg Board or the audit committee of the Sarg Board has received any ~~has made available~~ written (or to the ~~Company a summary~~ Knowledge of Sarg, oral) complaint, allegation, assertion or claim regarding the accounting or auditing practices, procedures, methodologies or methods of Sarg or its Subsidiaries, or their respective internal accounting controls or any ~~such disclosures made by management to such accounting firm or audit committee for~~ other matter set forth in the ~~year ended December 31, 2006~~immediately preceding sentence. (cg) The consolidated financial statements of Parent included in the Parent SEC Documents (the “Parent SEC Financial Statements”) (i) have been prepared in accordance with GAAP (except as may be otherwise indicated therein or in the notes thereto and except, in the case of unaudited consolidated quarterly statements, as permitted by Form 10-Q of the Exchange Act), applied on a consistent basis during the periods involved, (ii) complied in all material respects with published rules and regulations of the SEC with respect thereto, and (iii) fairly present in all material respects the consolidated financial position of Parent Sarg and its ~~consolidated Parent~~ Subsidiaries as of the respective dates thereof and the consolidated statements of income, cash flows and changes in stockholders’ equity for the respective periods then ended (subject, in the case of unaudited quarterly statements, to normal year-end audit adjustments and the absence of footnotes). (d) As of March 31, 2007, neither Parent nor any of the Parent Subsidiaries had do not have any liabilities or obligations ~~that would have been~~ of any nature (whether absolute or contingent, asserted or unasserted, known or unknown, primary or secondary, direct or indirect, and whether or not accrued or required ~~by GAAP~~ to be reflected in ~~the consolidated balance sheet of Parent and the Parent Subsidiaries as of such date~~Sarg’s financial statements in accordance with GAAP), except (i) ~~for such liabilities and obligations reflected~~as disclosed, reflected or reserved against ~~or otherwise disclosed~~ in the ~~consolidated~~ most recent audited balance sheet ~~of Parent and~~ included in the ~~Parent Subsidiaries as of such date (including~~ Sarg SEC Financial Statements or the notes thereto~~) that is included in the Parent SEC Financial Statements and~~ , (ii) for ~~such~~ liabilities and obligations ~~as would not be reasonably expected to have~~incurred in the ordinary course of business since the date of the most recent audited balance sheet included in the Sarg SEC Financial Statements, (iii) for liabilities and obligations arising out of or in connection with this Agreement, the Merger or the other Transactions and (iv) for liabilities and obligations that, individually or in the aggregate, have not had, and would not reasonably be expected to have, a ~~Parent~~ Sarg Material Adverse Effect (it is understood and agreed that the representations and warranties contained in this Section 5.5(d): (x) do not apply to matters described in any of Section 5.4, the other provisions of this Section 5.5, and Sections 5.7, 5.8, 5.9, 5.10, 5.11 and 5.17 (which are addressed exclusively in those Sections) and (y) shall not be deemed breached if such breach relates to a matter which is covered by a representation or warranty of Parent and Merger Sub contained in this Article V (other than this Section 5.5(d)) that contains a “Parent’s Knowledge” qualification)Effect. (e) Since December 31, 2006 to the date of this Agreement, (i) neither Parent nor any Parent Subsidiary nor, to Parent’s Knowledge, any director, officer, auditor, accountant or representative of Parent or any of the Parent Subsidiaries has received any written complaint, allegation, assertion or claim that Parent or any of the Parent Subsidiaries has engaged in improper or illegal accounting or auditing practices or maintains improper or inadequate internal accounting controls relating to Parent and the Parent Subsidiaries, taken as a whole, (ii) no attorney representing Parent or any Parent Subsidiary has made a report to Parent’s chief legal officer, chief executive officer or Board of Directors (or any committee thereof) pursuant to the SEC’s Standards of Professional Conduct for Attorneys (17 CFR Part 205), and (iii) Parent has disclosed to its outside auditors any fraud, whether or not material, of which there is Parent’s Knowledge that involves management or other employees who have a significant role in Parent’s internal control over financial reporting.

Appears in 2 contracts

Sources: Merger Agreement (Strayer Education Inc), Merger Agreement (Capella Education Co)

SEC Documents; Financial Statements; Undisclosed Liabilities. (a) Parent has filed with or furnished to the SEC all reports, schedules, ~~forms~~ forms, statements, registration statements, prospectuses and ~~registration statements with the SEC~~ other documents (including exhibits and other information incorporated therein) required to be filed or furnished by ~~it pursuant to~~ Parent with the SEC under the Securities Act ~~and the Securities Act Rules,~~ or the Exchange Act ~~and~~ since December 31, 2010 (such documents, together with any documents filed or furnished during such period by Parent to the ~~Exchange Act Rules, in each such case since January 1, 2005 (collectively, and in each case including all annexes and schedules thereto and documents incorporated by reference therein~~SEC on a voluntary basis, the “Parent SEC Documents”). No Parent Subsidiary is subject to the periodic reporting requirements of the Exchange Act or is otherwise required to make filings with the SEC. (b) As of ~~their~~ its respective ~~dates (or~~ date, or, if ~~subsequently amended or superseded by a filing prior to~~ amended, as of the date of ~~this Agreement~~the last such amendment, ~~on the date~~ each of ~~such filing),~~ the Parent SEC Documents complied ~~as to form~~ when filed or furnished (or, if applicable, when amended), or, if not yet filed or furnished, will comply, in all material respects with the requirements of the Securities Act or and the Exchange Act, as in each case to the ~~case may be, and the rules and regulations of the SEC promulgated thereunder~~ extent applicable to such Parent SEC Documents, and none of the Parent SEC Documents as when filed or furnished (or in the case of ~~such dates contained~~ a registration statement under the Securities Act, at the time it was declared effective) contained, or, if not yet filed or furnished, will contain, any untrue statement of a material fact or omitted (or will omit) to state a material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading~~. To~~ . (c) The Parent SEC Financial Statements have been derived, or in the case of Parent SEC Documents filed after the date of this Agreement, will be derived, from the accounting books and records of Parent and the Parent Subsidiaries and (i) as of their respective dates of filing with the SEC complied, or in the case of Parent SEC Documents filed after the date of this Agreement, will comply, as to form in all material respects with applicable accounting requirements and the published rules and regulations of the SEC with respect thereto, (ii) were prepared, or in the case of Parent SEC Documents filed after the date of this Agreement, will be prepared, in accordance with GAAP applied on a consistent basis during the periods involved (except as may be indicated in the notes thereto and except, in the case of the unaudited interim statements, as may be permitted by Form 10-Q and Regulation S-X of the SEC) and (iii) fairly presented, or in the case of Parent SEC Documents filed after the date of this Agreement, will fairly present, in all material respects, the consolidated financial position of Parent~~’s Knowledge~~, as of the respective dates thereof, and the consolidated results of their operations, and, where included, their consolidated stockholders’ equity and their consolidated cash flows for the respective periods indicated (subject, in the case of the unaudited statements, to normal year-end audit adjustments and the absence of notes). (d) As of the date ~~hereof~~of this Agreement, there are no outstanding or unresolved comments in comment letters received from the SEC staff with respect to any Parent SEC Documents, and none of the Parent SEC Documents is filed with the SEC prior to the date of this Agreement (other than confidential treatment requests) is, to the Knowledge of Parent, the subject of ongoing SEC review. As of the date of this Agreement, there are no SEC inquiries or investigations or other governmental inquiries or investigations pending or, to the Knowledge of Parent, threatened, in each case regarding any accounting practices of Parent. (be) Parent ~~is in compliance with, and has complied, in all material respects with (i) the applicable provisions~~ maintains a system of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002 and the related rules and regulations promulgated thereunder, and (ii) the applicable listing and corporate governance rules and regulations of NASDAQ. Parent has established and maintains disclosure controls and procedures and “internal control over financial ~~reporting~~ reporting” (as ~~such terms are~~ defined in ~~paragraphs (e~~Rules 13a-15(f) and ~~(f), respectively,~~ 15d-15(f) of ~~Rule 13a-15 under~~ the Exchange Act) sufficient to provide reasonable assurance (i) that transactions are recorded as ~~required by Rule 13a-15 under~~ necessary to permit preparation of financial statements in conformity with GAAP, consistently applied, (ii) that transactions are executed only in accordance with the authorization of management and (iii) regarding prevention or timely detection of the unauthorized acquisition, use or disposition of Parent’s properties or assets that could have a material effect on Parent’s financial statements. The “disclosure controls and procedures” (as defined in Rules 13a-15(e) and 15d-15(e) of the Exchange Act~~. Parent’s disclosure controls and procedures~~ ) utilized by Parent are reasonably designed to ensure that all ~~material~~ information (both financial and non-financial) required to be disclosed by Parent in the reports that it files or ~~furnishes~~ submits under the Exchange Act is recorded, processed, summarized and reported within the time periods specified in the rules and forms of the ~~SEC,~~ SEC and that all such ~~material~~ information required to be disclosed is accumulated and communicated to the management of Parent ~~as appropriate~~ to allow timely decisions regarding required disclosure and to enable the chief executive officer and chief financial officer of Parent to make the certifications required ~~pursuant~~ under the Exchange Act with respect to ~~Sections 302 and 906 of~~ such reports. Since the ~~▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act. The management of Parent has completed its assessment of the effectiveness~~ Audited Balance Sheet Date, none of Parent~~’s internal control over financial reporting in compliance with the requirements of Section 404 of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act for the year ended December 31~~, 2006, and such assessment concluded that such controls were effective to provide reasonable assurance regarding the reliability of Parent’s financial reporting and the preparation of Parent’s financial statements for external purposes in accordance with GAAP. Parent has disclosed, based on its assessment of the effectiveness of Parent’s internal control over financial reporting in compliance with the requirements of Section 404 of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act for the year ended December 31, 2006, to Parent’s independent ~~registered accounting firm and~~ accountants, the Parent Board or the audit committee of the Parent Board has received any oral or written notification of ~~Directors of Parent~~ any (Ai) ~~any~~ “significant ~~deficiencies and material weaknesses~~ deficiency” in the ~~design or operation of~~ internal ~~control~~ controls over financial reporting ~~which are reasonably likely to adversely affect~~ of Parent~~’s ability to record~~, ~~process, summarize and report~~ (ii) “material weakness” in the internal controls over financial ~~information and~~ reporting of Parent or (Biii) ~~any~~ fraud, whether or not material, ~~of which there is Parent’s Knowledge~~ that involves management or other employees of Parent who have a significant role in ~~Parent’s~~ the internal ~~control~~ controls over financial reporting ~~for~~ of Parent. For purposes of this Agreement, the ~~year ended December 31~~terms “significant deficiency” and “material weakness” will have the meanings assigned to them in Auditing Standard No. 5 of the Public Company Accounting Oversight Board, ~~2006. Parent any has made available to~~ as in effect on the ~~Company a summary~~ date of ~~any such disclosures made by management to such accounting firm or audit committee for the year ended December 31, 2006~~this Agreement. (cf) ~~The~~ Parent and the Parent Subsidiaries do not have any liabilities or obligations of any nature (whether absolute, contingent, accrued or otherwise) required by GAAP to be reflected or reserved against in a consolidated ~~financial statements~~ balance sheet (or the notes thereto) of Parent, except for those (i) that, individually or in the aggregate, have not had and would not reasonably be expected to have a Parent Material Adverse Effect, (ii) reflected or reserved against in the most recent consolidated balance sheet of Parent included in the Parent SEC ~~Documents~~ Financial Statements (~~the “Parent SEC Financial Statements”) (i) have been prepared in accordance with GAAP (except as may be otherwise indicated therein~~ or in the notes thereto and except, in the case of unaudited consolidated quarterly statements, as permitted by Form 10-Q of the Exchange Act), applied on a consistent basis during the periods involved, (ii) complied in all material respects with published rules and regulations of the SEC with respect thereto, and (iii) fairly present in all material respects the consolidated financial position of Parent and its consolidated Parent Subsidiaries as of the respective dates thereof and the consolidated statements of income, cash flows and changes in stockholders’ equity for the respective periods then ended (subject, in the case of unaudited quarterly statements, to normal year-end audit adjustments and the absence of footnotes). (d) As of March 31, 2007, neither Parent nor any of the Parent Subsidiaries had any liabilities or obligations that would have been required by GAAP to be reflected in the consolidated balance sheet of Parent and the Parent Subsidiaries as of such date, except (i) for such liabilities and obligations reflected, reserved against or otherwise disclosed in the consolidated balance sheet of Parent and the Parent Subsidiaries as of such date (including the notes thereto) that is included in the Parent SEC Financial Statements and (ii) for such liabilities and obligations as would not be reasonably expected to have, individually or in the aggregate, a Parent Material Adverse Effect (it is understood and agreed that the representations and warranties contained in this Section 5.5(d): (x) do not apply to matters described in any of Section 5.4, the other provisions of this Section 5.5, and Sections 5.7, 5.8, 5.9, 5.10, 5.11 and 5.17 (which are addressed exclusively in those Sections) and (y) shall not be deemed breached if such breach relates to a matter which is covered by a representation or warranty of Parent and Merger Sub contained in this Article V (other than this Section 5.5(d)) that contains a “Parent’s Knowledge” qualification). (e) Since December 31, 2006 filed prior to the date of this Agreement, (i) neither Parent nor any Parent Subsidiary nor, to Parent’s Knowledge, any director, officer, auditor, accountant or representative of Parent or any of the Parent Subsidiaries has received any written complaint, allegation, assertion or claim that Parent or any of the Parent Subsidiaries has engaged in improper or illegal accounting or auditing practices or maintains improper or inadequate internal accounting controls relating to Parent and the Parent Subsidiaries, taken as a whole, (ii) no attorney representing Parent or any Parent Subsidiary has made a report to Parent’s chief legal officer, chief executive officer or Board of Directors (or any committee thereof) pursuant to the SEC’s Standards of Professional Conduct for Attorneys (17 CFR Part 205), and (iii) ~~Parent has disclosed to its outside auditors any fraud, whether~~ incurred in the ordinary course of business since the date of such balance sheet or ~~not material, of which there is Parent’s Knowledge that involves management~~ (iv) incurred in connection with this Agreement or ~~other employees who have a significant role in Parent’s internal control over financial reporting~~the transactions contemplated hereby.

Appears in 2 contracts

Sources: Merger Agreement (Rockwood Holdings, Inc.), Merger Agreement (Albemarle Corp)

SEC Documents; Financial Statements; Undisclosed Liabilities. (a) ~~Parent~~ LRC has filed all ~~reports~~forms, ~~schedules, forms~~ reports and ~~registration statements with the SEC~~ documents required to be filed ~~by it pursuant~~ with the SEC since June 30, 1995, and has made available to OSI such forms, reports and documents in the form filed with the SEC. All such required forms, reports and documents (including those that LRC may file subsequent to the ~~Securities Act and~~ date hereof until the ~~Securities Act Rules, or~~ Closing) are referred to herein as the Exchange Act and the Exchange Act Rules, in each such case since January 1, 2005 (collectively, and in each case including all annexes and schedules thereto and documents incorporated by reference therein, the “Parent "LRC SEC Documents~~”).~~ ." As of their respective ~~dates (or if subsequently amended or superseded by a filing prior to the date of this Agreement, on the date of such filing)~~dates, the ~~Parent~~ LRC SEC Documents ~~complied as to form~~ (i) were prepared in ~~all material respects~~ accordance with the requirements of the Securities Act or the Exchange Act, as the case may be, and the rules and regulations of the SEC ~~promulgated~~ thereunder applicable to such ~~Parent~~ LRC SEC Documents, and ~~none~~ (ii) did not at the time they were filed (and if amended or superseded by a filing prior to the date of this Agreement, then on the ~~Parent SEC Documents as~~ date of such ~~dates contained~~ filing) contain any untrue statement of a material fact or ~~omitted~~ 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 were made, not misleading. ~~To Parent’s Knowledge~~None of LRC's subsidiaries is required to file any forms, ~~as of~~ reports or other documents with the ~~date hereof, none of the Parent SEC Documents is the subject of ongoing SEC review~~SEC. (b) ~~Parent is~~ Each of the consolidated financial statements (including, in ~~compliance with~~each case, ~~and has complied~~any related notes thereto) contained in LRC SEC Documents (the "LRC Financial Statements"), including any LRC SEC Documents filed after the date hereof until the Closing, (x) complied as to form in all material respects with ~~(i) the~~ applicable ~~provisions of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002~~ accounting requirements and the related rules and regulations promulgated thereunder, and (ii) the applicable listing and corporate governance rules and regulations of NASDAQ. Parent has established and maintains disclosure controls and procedures and internal control over financial reporting (as such terms are defined in paragraphs (e) and (f), respectively, of Rule 13a-15 under the Exchange Act) as required by Rule 13a-15 under the Exchange Act. Parent’s disclosure controls and procedures are reasonably designed to ensure that all material information required to be disclosed by Parent in the reports that it files or furnishes under the Exchange Act is recorded, processed, summarized and reported within the time periods specified in the rules and forms of the SEC, and that all such material information is accumulated and communicated to the management of Parent as appropriate to allow timely decisions regarding required disclosure and to make the certifications required pursuant to Sections 302 and 906 of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act. The management of Parent has completed its assessment of the effectiveness of Parent’s internal control over financial reporting in compliance with the requirements of Section 404 of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act for the year ended December 31, 2006, and such assessment concluded that such controls were effective to provide reasonable assurance regarding the reliability of Parent’s financial reporting and the preparation of Parent’s financial statements for external purposes in accordance with GAAP. Parent has disclosed, based on its assessment of the effectiveness of Parent’s internal control over financial reporting in compliance with the requirements of Section 404 of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act for the year ended December 31, 2006, to Parent’s independent registered accounting firm and the audit committee of the Board of Directors of Parent (A) any significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect Parent’s ability to record, process, summarize and report financial information and (B) any fraud, whether or not material, of which there is Parent’s Knowledge that involves management or other employees who have a significant role in Parent’s internal control over financial reporting for the year ended December 31, 2006. Parent any has made available to the Company a summary of any such disclosures made by management to such accounting firm or audit committee for the year ended December 31, 2006. (c) The consolidated financial statements of Parent included in the Parent SEC Documents (the “Parent SEC Financial Statements”) (i) have been prepared in accordance with GAAP (except as may be otherwise indicated therein or in the notes thereto and except, in the case of unaudited consolidated quarterly statements, as permitted by Form 10-Q of the Exchange Act), applied on a consistent basis during the periods involved, (ii) complied in all material respects with published rules and regulations of the SEC with respect thereto, (y) was prepared in accordance with GAAP applied on a consistent basis throughout the periods involved (except as may be indicated in the notes thereto or, in the case of unaudited interim financial statements, as may be permitted by the SEC on Form 10-Q under the Exchange Act) and (~~iii~~z) fairly ~~present in all material respects~~ presented the consolidated financial position of ~~Parent~~ LRC and its ~~consolidated Parent Subsidiaries~~ subsidiaries as of at the respective dates thereof and the consolidated ~~statements~~ results of ~~income,~~ its operations and cash flows ~~and changes in stockholders’ equity~~ for the ~~respective~~ periods ~~then ended (subject~~indicated, in consistent with the ~~case~~ books and records of LRC, except that the unaudited ~~quarterly statements,~~ interim financial statements were or are subject to normal and recurring year-end ~~audit~~ adjustments ~~and~~ which were not, or are not expected to be, material in amount. The balance sheet of LRC contained in LRC's Form 10-Q for the ~~absence of footnotes). (d) As of March~~ quarter ended December 31, ~~2007, neither Parent~~ 1996 is hereinafter referred to as the "LRC Balance Sheet." Neither LRC nor any of ~~the Parent Subsidiaries had~~ its subsidiaries has any liabilities (absolute, accrued, contingent or ~~obligations that would have been~~ otherwise) whether or not of a nature required ~~by GAAP~~ to be disclosed on a balance sheet or in the related notes to the consolidated financial statements prepared in accordance with GAAP, which individually or in the aggregate are or would be reasonably likely to have a Material Adverse Effect on LRC other than (i) liabilities reflected in the ~~consolidated balance sheet of Parent and the Parent Subsidiaries as of such date~~LRC Balance Sheet, except (i) for such liabilities and obligations reflected, reserved against or otherwise disclosed in the consolidated balance sheet of Parent and the Parent Subsidiaries as of such date (including the notes thereto) that is included in the Parent SEC Financial Statements and (ii) ~~for such~~ normal or recurring liabilities ~~and obligations as would not be reasonably expected to have~~incurred since December 31, ~~individually or~~ 1996 in the ~~aggregate~~ordinary course of business consistent with past practice. The inventories shown on the LRC Balance Sheet are (and on LRC balance sheets included in future LRC SEC Documents except as disclosed therein will be) of a quantity and quality useable and saleable in accordance with good business practices and represent a distribution of the types of inventories utilized in the business of LRC in accordance with good business practices. Additions and deletions from the inventories since the date thereof have been in the ordinary course of business. The amounts shown for inventories on the LRC Balance Sheet have been (and on LRC balance sheets included in future LRC SEC Documents except as disclosed therein will be) determined in accordance with generally accepted accounting principles on a first-in, ~~a Parent Material Adverse Effect (it is understood~~ first-out basis and ~~agreed that the representations and warranties contained in this Section 5.5(d): (x) do not apply to matters described in any~~ are stated at lower of Section 5.4, the other provisions of this Section 5.5, and Sections 5.7, 5.8, 5.9, 5.10, 5.11 and 5.17 (which are addressed exclusively in those Sections) and (y) shall not be deemed breached if such breach relates to a matter which is covered by a representation cost or ~~warranty of Parent and Merger Sub contained in this Article V (other than this Section 5.5(d)) that contains a “Parent’s Knowledge” qualification)~~market. (ec) ~~Since December 31~~LRC has heretofore made available to OSI a complete and correct copy of any amendments or modifications, ~~2006~~ which have not yet been filed with the SEC but which are required to ~~the date of this Agreement, (i) neither Parent nor any Parent Subsidiary nor~~be filed, to ~~Parent’s Knowledge~~agreements, ~~any director, officer, auditor, accountant~~ documents or ~~representative of Parent or any of~~ other instruments which previously had been filed by LRC with the Parent Subsidiaries has received any written complaint, allegation, assertion or claim that Parent or any of the Parent Subsidiaries has engaged in improper or illegal accounting or auditing practices or maintains improper or inadequate internal accounting controls relating to Parent and the Parent Subsidiaries, taken as a whole, (ii) no attorney representing Parent or any Parent Subsidiary has made a report to Parent’s chief legal officer, chief executive officer or Board of Directors (or any committee thereof) SEC pursuant to the ~~SEC’s Standards of Professional Conduct for Attorneys (17 CFR Part 205), and (iii) Parent has disclosed to its outside auditors any fraud, whether~~ Securities Act or ~~not material, of which there is Parent’s Knowledge that involves management or other employees who have a significant role in Parent’s internal control over financial reporting~~the Exchange Act.

Appears in 2 contracts

Sources: Merger Agreement (Lam Research Corp), Merger Agreement (Lam Research Corp)

SEC Documents; Financial Statements; Undisclosed Liabilities. (a) ~~Parent~~ The Company has filed with or furnished to the Securities and Exchange Commission (“SEC”) and has heretofore made available to Parent (by public filing with the SEC or otherwise) true and complete copies of all reports, schedules, ~~forms~~ forms, statements and ~~registration statements with the SEC~~ other documents required to be filed ~~by it pursuant~~ with or furnished to the ~~Securities Act~~ SEC by the Company since August 15, 2002 (the “Applicable Date”) and prior to the ~~Securities Act Rules, or the Exchange Act and the Exchange Act Rules, in each such case since January 1, 2005~~ date hereof (collectively, ~~and in each case including all annexes and schedules thereto and documents incorporated by reference therein,~~ the “~~Parent~~ Filed Company SEC Documents”). As of ~~their~~ its respective ~~dates (or if subsequently amended or superseded by a filing prior to~~ date, except as set forth in Section 3.7(a) of the ~~date of this Agreement~~Company Disclosure Letter, ~~on the date of such filing), the Parent~~ each Filed Company SEC ~~Documents~~ Document complied ~~as to form~~ in all material respects with the requirements of the Exchange Act, the Securities Act or the ~~Exchange~~ S▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002 (the “S▇▇▇▇▇▇▇-▇▇▇▇▇ Act”), as the case may be, as and to the extent applicable thereto, and the rules and regulations of the SEC promulgated thereunder applicable to such ~~Parent~~ Filed Company SEC ~~Documents~~Document. Except to the extent that information contained in any Filed Company SEC Document has been revised or superseded by a later Filed Company SEC Document, ~~and~~ none of the ~~Parent~~ Filed Company SEC Documents ~~as of such dates contained~~ contains any untrue statement of a material fact or ~~omitted~~ omits to state a any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading~~. To Parent’s Knowledge, as of the date hereof, none of the Parent SEC Documents is the subject of ongoing SEC review~~. (b) ~~Parent is~~ The consolidated financial statements of the Company included in ~~compliance with, and has complied,~~ the Filed Company SEC Documents complied as of their respective dates in all material respects with the then applicable accounting requirements and the published rules and regulations of the SEC with respect thereto, were prepared in accordance with GAAP (except in the case of the unaudited statements, as permitted by Form 10-Q and Form 8-K under the Exchange Act) applied on a consistent basis during the periods involved (except as may be indicated therein or in the notes thereto) and fairly presented in all material respects the consolidated financial position of the Company and its consolidated Subsidiaries as of the dates thereof and the consolidated results of their operations and their consolidated cash flows for the periods then ended, all in accordance with GAAP (subject, in the case of unaudited statements, to normal year-end audit adjustments and to any other adjustments described therein). The Company has made available to Parent complete and correct copies of (i) all management representation letters delivered by the ~~applicable provisions~~ Company or its management to the Company’s auditors in connection with the audit of the ▇Company’s 2005 consolidated financial statements and (ii) all material correspondence with the SEC from January 1, 2004 to the date hereof. (c) The Company maintains disclosure controls and procedures 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 filings with the SEC and other public disclosure documents. The 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 GAAP 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 assets of the Company, (ii) provide reasonable assurance that transactions are recorded as necessary to permit preparation of financial statements in accordance with GAAP, and that receipts and expenditures of the Company are being made only in accordance with authorizations of management and trustees 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. The Company has disclosed, based on the most recent evaluation of its chief executive officer, chief operating 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 (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 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 communication since the Applicable Date made by management or the Company’s auditors to the audit committee required or contemplated by listing standards of the NYSE, 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 material 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 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 Company Subsidiary, whether or not employed by the Company or any Company Subsidiary, 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, trustees, employees or agents to the Company’s chief legal officer, audit committee (or other committee designated for the purpose) of the Board or the Board pursuant to the rules adopted pursuant to Section 307 of the S▇▇▇▇▇▇▇-▇▇▇▇▇ Act or any Company policy contemplating such reporting. The representations in this Section 3.7(c) are subject to the exceptions set forth in Section 3.7(c) of ~~2002~~ the Company Disclosure Letter. (d) Neither the Company nor any of the Company Subsidiaries has any liabilities or obligations of any nature (whether known or unknown, whether asserted or unasserted, whether absolute or contingent, whether accrued or unaccrued, whether liquidated or unliquidated and whether due or to become due) (collectively, “Liabilities”) that are material, other than Liabilities to the ~~related rules and regulations promulgated thereunder~~extent (i) reflected, ~~and~~ accrued or reserved for on the audited consolidated balance sheet included in the audited consolidated financial statements of the Company (~~ii)~~ the applicable listing and corporate governance rules and regulations of NASDAQ. Parent has established and maintains disclosure controls and procedures and internal control over financial reporting (as such terms are defined in paragraphs (e) and (f), respectively, of Rule 13a-15 under the Exchange Act“Company Audited Financials”) as ~~required by Rule 13a-15 under the Exchange Act. Parent’s disclosure controls and procedures are reasonably designed to ensure that all material information required to be disclosed by Parent~~ of December 31, 2005 contained in the ~~reports that it files or furnishes under~~ Form 10-K filed by the ~~Exchange Act is recorded, processed, summarized and reported within~~ Company with the time periods specified in the rules and forms of the SEC, and that all such material information is accumulated and communicated to the management of Parent as appropriate to allow timely decisions regarding required disclosure and to make the certifications required pursuant to Sections 302 and 906 of the S▇▇ ▇~~▇▇▇▇▇▇-~~▇ ▇▇▇▇▇ ~~Act. The management of Parent has completed its assessment of the effectiveness of Parent’s internal control over financial reporting in compliance with the requirements of Section 404 of the~~ ▇▇, ▇▇▇▇, (▇▇~~▇▇-▇▇▇▇▇ Act~~ ) reflected, accrued or reserved for on the year ended December 31, 2006, and such assessment concluded that such controls were effective to provide reasonable assurance regarding the reliability of Parent’s financial reporting and the preparation of Parent’s financial statements for external purposes in accordance with GAAP. Parent has disclosed, based on its assessment of the effectiveness of Parent’s internal control over financial reporting in compliance with the requirements of Section 404 of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act for the year ended December 31, 2006, to Parent’s independent registered accounting firm and the audit committee of the Board of Directors of Parent (A) any significant deficiencies and material weaknesses unaudited balance sheet included in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect Parent’s ability to record, process, summarize and report financial information and (B) any fraud, whether or not material, of which there is Parent’s Knowledge that involves management or other employees who have a significant role in Parent’s internal control over financial reporting for the year ended December 31, 2006. Parent any has made available to the Company a summary of any such disclosures made by management to such accounting firm or audit committee for the year ended December 31, 2006. (c) The consolidated unaudited financial statements of ~~Parent included in~~ the ~~Parent SEC Documents~~ Company as of June 30, 2006 (the “~~Parent SEC~~ Financial ~~Statements~~Statement Date” and such financial statements, the “Company Interim Financials”) ~~(i) have been prepared in accordance with GAAP (except as may be otherwise indicated therein or~~ contained in the ~~notes thereto and except, in the case of unaudited consolidated quarterly statements, as permitted by~~ Form 10-Q of filed by the ~~Exchange Act), applied on a consistent basis during the periods involved, (ii) complied in all material respects~~ Company with ~~published rules and regulations of~~ the SEC ~~with respect thereto~~on August 8, ~~and~~ 2006, (iii) fairly present in all material respects the consolidated financial position of Parent and its consolidated Parent Subsidiaries as of the respective dates thereof and the consolidated statements of income, cash flows and changes in stockholders’ equity for the respective periods then ended (subject, incurred in the ~~case~~ ordinary course of ~~unaudited quarterly statements~~business after the Financial Statement Date, (iv) relating to ~~normal year-end audit adjustments~~ payment or performance obligations under Contracts in accordance with the terms and ~~the absence of footnotes). (d) As of March 31, 2007, neither Parent nor any of the Parent Subsidiaries had any liabilities or obligations that would have been~~ conditions thereof which are not required by ~~GAAP~~ generally accepted accounting principles (“GAAP”) to be reflected ~~in the consolidated~~ on a regularly prepared balance sheet of Parent and the Parent Subsidiaries as of such date, except (i) for such liabilities and obligations reflected, reserved against or otherwise disclosed in the consolidated balance sheet of Parent and the Parent Subsidiaries as of such date (including the notes thereto) that is included in the Parent SEC Financial Statements and (ii) for such liabilities and obligations as would not be reasonably expected to have, individually or in the aggregate, a Parent Material Adverse Effect (it is understood and agreed that the representations and warranties contained in this Section 5.5(d): (x) do not apply to matters described in any of Section 5.4, the other provisions of this Section 5.5, and Sections 5.7, 5.8, 5.9, 5.10, 5.11 and 5.17 (which are addressed exclusively in those Sections) and (y) shall not be deemed breached if such breach relates to a matter which is covered by a representation or warranty of Parent and Merger Sub contained in this Article V (other than this Section 5.5(d)) that contains a “Parent’s Knowledge” qualification). (e) Since December 31, 2006 to the date of this Agreementsheet, (iv) ~~neither Parent nor any Parent Subsidiary nor,~~ incurred in connection with this Agreement or the transactions contemplated hereby or (vi) arising out of or related to ~~Parent’s Knowledge, any director, officer, auditor, accountant~~ acquisition and development agreements and leases or ~~representative of Parent or any~~ other contracts and transactions listed on Section 3.7(d) of the Parent Subsidiaries has received any written complaint, allegation, assertion or claim that Parent or any of the Parent Subsidiaries has engaged in improper or illegal accounting or auditing practices or maintains improper or inadequate internal accounting controls relating to Parent and the Parent Subsidiaries, taken as a whole, (ii) no attorney representing Parent or any Parent Subsidiary has made a report to Parent’s chief legal officer, chief executive officer or Board of Directors (or any committee thereof) pursuant to the SEC’s Standards of Professional Conduct for Attorneys (17 CFR Part 205), and (iii) Parent has disclosed to its outside auditors any fraud, whether or not material, of which there is Parent’s Knowledge that involves management or other employees who have a significant role in Parent’s internal control over financial reportingCompany Disclosure Letter.

Appears in 2 contracts

Sources: Merger Agreement (Health Care Reit Inc /De/), Merger Agreement (Windrose Medical Properties Trust)

SEC Documents; Financial Statements; Undisclosed Liabilities. (a) ~~Parent~~ AmSurg has filed or furnished all reports, schedules, ~~forms~~ forms, statements, registration statements, prospectuses and ~~registration statements with the SEC~~ other documents required to be filed or furnished by ~~it pursuant to~~ AmSurg with the SEC under the Securities Act ~~and the Securities Act Rules,~~ or the Exchange Act ~~and the Exchange Act Rules, in each such case~~ since January 1, ~~2005~~ 2013 (~~collectively, and in each case including all annexes and schedules thereto and documents incorporated by reference therein,~~ the “~~Parent~~ AmSurg SEC Documents”). None of the Subsidiaries of AmSurg is required to make or makes any filings with the SEC. (b) As of ~~their~~ its respective ~~dates (or~~ filing date, and, if ~~subsequently amended or superseded by a filing~~ amended, as of the date of the last amendment prior to the date of this Agreement, ~~on the date of such filing), the Parent~~ each AmSurg SEC ~~Documents~~ Document complied ~~as to form~~ in all material respects with the requirements of the ~~Securities~~ Exchange Act or the ~~Exchange~~ Securities Act, as the case may be, and the rules and regulations of the SEC promulgated thereunder applicable to such ~~Parent~~ AmSurg SEC ~~Documents,~~ Document and ~~none of the Parent SEC Documents as of such dates contained~~ did not contain any untrue statement of a material fact or ~~omitted~~ omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading. (c) The consolidated financial statements of AmSurg included in the AmSurg SEC Documents (including, in each case, any notes or schedules thereto) and all related compilations, reviews and other reports issued by AmSurg’s accountants with respect thereto (the “AmSurg SEC Financial Statements”), comply as to form in all material respects with applicable accounting requirements and the published rules and regulations of the SEC with respect thereto. ~~To Parent’s Knowledge~~The AmSurg SEC Financial Statements fairly present, in all material respects, the financial condition and the results of operations, cash flows and changes in shareholders’ equity of AmSurg (on a consolidated basis) as of the ~~date hereof~~respective dates of and for the periods referred to in the AmSurg SEC Financial Statements, ~~none~~ and were prepared in accordance with GAAP applied on a consistent basis during the periods involved (except as may be indicated in the notes thereto), subject, in the case of interim AmSurg SEC Financial Statements, to normal year-end adjustments (which are not material in significance or amount) and the absence of notes. The books and records of AmSurg and its Subsidiaries are accurate and complete in all material respects, have been maintained in accordance with sound business practices and accurately present and reflect in all material respects all of the ~~Parent~~ transactions and actions therein described and the AmSurg SEC ~~Documents is~~ Financial Statements have been prepared, in all material respects, in accordance with such books and records. No financial statements of any Person other than AmSurg and its Subsidiaries are required by GAAP to be included in the ~~subject~~ consolidated financial statements of ~~ongoing SEC review~~AmSurg. Except as required by GAAP, AmSurg has not, between December 31, 2015 and the date of this Agreement, made or adopted any material change in its accounting methods, practices or policies in effect on December 31, 2015. (bd) ~~Parent~~ AmSurg is in compliance ~~with, and has complied,~~ in all material respects with (i) the applicable provisions of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002 and the related rules and regulations promulgated ~~thereunder,~~ thereunder or under the Exchange Act (the “▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act”) and (ii) the applicable listing and corporate governance rules and regulations of the NASDAQ. (e) AmSurg has made available to Holdings true and complete copies of all written comment letters from the staff of the SEC received since January 1, 2013 relating to the AmSurg SEC Documents and all written responses of AmSurg thereto other than with respect to requests for confidential treatment or which are otherwise publicly available on the SEC’s ▇▇▇▇▇ system. ~~Parent~~ To the Knowledge of AmSurg, there are no outstanding or unresolved comments in comment letters received from the SEC staff with respect to any AmSurg SEC Documents and none of the AmSurg SEC Documents (other than confidential treatment requests) is the subject of ongoing SEC review. There are no internal investigations with respect to which AmSurg has retained outside counsel, SEC inquiries or investigations or other governmental inquiries or investigations, to the Knowledge of AmSurg, pending or threatened, in each case regarding any accounting practices of AmSurg. (f) AmSurg has established and maintains disclosure controls and procedures and internal control over financial reporting (as such terms are defined in paragraphs (e) and (f), respectively, of Rule 13a-15 and paragraph (e) of Rule 15d-15 under the Exchange Act) as required by ~~Rule~~ Rules 13a-15 and 15d-15 under the Exchange Act. ~~Parent~~AmSurg’s disclosure controls and procedures are ~~reasonably~~ designed to ensure that ~~all material~~ information required to be disclosed by ~~Parent~~ AmSurg in the reports that it files or ~~furnishes~~ submits under the Exchange Act is recorded, processed, summarized and reported within the time periods specified in the rules and forms of the SEC, and that all such ~~material~~ information is accumulated and communicated to ~~the~~ AmSurg’s management ~~of Parent~~ as appropriate to allow timely decisions regarding required disclosure and to make the certifications required pursuant to Sections 302 and 906 of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act. ~~The~~ AmSurg’s management ~~of Parent~~ has completed ~~its~~ an assessment of the effectiveness of ~~Parent~~AmSurg’s disclosure controls and procedures and, to the extent required by applicable Law, presented in any applicable AmSurg SEC Document that is a report on Form 10-K or Form 10-Q, or any amendment thereto, its conclusions about the effectiveness of the disclosure controls and procedures as of the end of the period covered by such report or amendment based on such evaluation. Based on AmSurg’s management’s most recently completed evaluation of AmSurg’s internal control over financial reporting ~~in compliance with~~ prior to the ~~requirements of Section 404 of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act for the year ended December 31~~date hereof, 2006, and such assessment concluded that such controls were effective to provide reasonable assurance regarding the reliability of Parent’s financial reporting and the preparation of Parent’s financial statements for external purposes in accordance with GAAP. Parent has disclosed, based on its assessment of the effectiveness of Parent’s internal control over financial reporting in compliance with the requirements of Section 404 of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act for the year ended December 31, 2006, to Parent’s independent registered accounting firm and the audit committee of the Board of Directors of Parent (Ai) ~~any~~ AmSurg had no significant deficiencies ~~and~~ or material weaknesses in the design or operation of its internal control over financial reporting ~~which are~~ that would reasonably ~~likely~~ be expected to adversely affect ~~Parent~~AmSurg’s ability to record, process, summarize and report financial information and (Bii) AmSurg does not have Knowledge of any fraud, whether or not material, ~~of which there is Parent’s Knowledge~~ that involves management or other employees who have a significant role in ~~Parent~~AmSurg’s internal control over financial reporting for the year ended December 31, 2006. Parent any has made available to the Company a summary of any such disclosures made by management to such accounting firm or audit committee for the year ended December 31, 2006reporting. (cg) The consolidated financial statements of Parent included in the Parent SEC Documents (the “Parent SEC Financial Statements”) (i) have been prepared in accordance with GAAP (except as may be otherwise indicated therein or in the notes thereto and except, in the case of unaudited consolidated quarterly statements, as permitted by Form 10-Q of the Exchange Act), applied on a consistent basis during the periods involved, (ii) complied in all material respects with published rules and regulations of the SEC with respect thereto, and (iii) fairly present in all material respects the consolidated financial position of Parent AmSurg and its ~~consolidated Parent~~ Subsidiaries as of the respective dates thereof and the consolidated statements of income, cash flows and changes in stockholders’ equity for the respective periods then ended (subject, in the case of unaudited quarterly statements, to normal year-end audit adjustments and the absence of footnotes). (d) As of March 31, 2007, neither Parent nor any of the Parent Subsidiaries had do not have any liabilities or obligations ~~that would have been~~ of any nature (whether absolute or contingent, asserted or unasserted, known or unknown, primary or secondary, direct or indirect, and whether or not accrued or required ~~by GAAP~~ to be reflected in ~~the consolidated balance sheet of Parent and the Parent Subsidiaries as of such date~~AmSurg’s financial statements in accordance with GAAP), except (i) ~~for such liabilities and obligations reflected~~as disclosed, reflected or reserved against ~~or otherwise disclosed~~ in the ~~consolidated~~ most recent audited balance sheet ~~of Parent and~~ included in the ~~Parent Subsidiaries as of such date (including~~ AmSurg SEC Financial Statements or the notes thereto~~) that is included in the Parent SEC Financial Statements and~~ , (ii) for ~~such~~ liabilities and obligations ~~as would not be reasonably expected to have~~incurred in the ordinary course of business since the date of the most recent audited balance sheet included in the AmSurg SEC Financial Statements, (iii) for liabilities and obligations arising out of or in connection with this Agreement, the Mergers or the Transactions and (iv) for liabilities and obligations that, individually or in the aggregate, ~~a Parent~~ have not had, and would not reasonably be expected to have, an AmSurg Material Adverse Effect (it is understood and agreed that the representations and warranties contained in this Section 5.5(d): (x) do not apply to matters described in any of Section 5.4, the other provisions of this Section 5.5, and Sections 5.7, 5.8, 5.9, 5.10, 5.11 and 5.17 (which are addressed exclusively in those Sections) and (y) shall not be deemed breached if such breach relates to a matter which is covered by a representation or warranty of Parent and Merger Sub contained in this Article V (other than this Section 5.5(d)) that contains a “Parent’s Knowledge” qualification)Effect. (e) Since December 31, 2006 to the date of this Agreement, (i) neither Parent nor any Parent Subsidiary nor, to Parent’s Knowledge, any director, officer, auditor, accountant or representative of Parent or any of the Parent Subsidiaries has received any written complaint, allegation, assertion or claim that Parent or any of the Parent Subsidiaries has engaged in improper or illegal accounting or auditing practices or maintains improper or inadequate internal accounting controls relating to Parent and the Parent Subsidiaries, taken as a whole, (ii) no attorney representing Parent or any Parent Subsidiary has made a report to Parent’s chief legal officer, chief executive officer or Board of Directors (or any committee thereof) pursuant to the SEC’s Standards of Professional Conduct for Attorneys (17 CFR Part 205), and (iii) Parent has disclosed to its outside auditors any fraud, whether or not material, of which there is Parent’s Knowledge that involves management or other employees who have a significant role in Parent’s internal control over financial reporting.

Appears in 2 contracts

Sources: Merger Agreement (Envision Healthcare Holdings, Inc.), Merger Agreement (Amsurg Corp)

SEC Documents; Financial Statements; Undisclosed Liabilities. (aPREIT Partnership is not required by any Law to file any reports, schedules, forms, statements or other documents with the SEC and has made no such filings. Except as set forth in Schedule 3.6(a) ~~Parent~~ to the PREIT Disclosure Letter, PREIT has timely filed all reports, schedules, ~~forms~~ forms, statements, certifications and ~~registration statements with the SEC~~ other documents required to be filed ~~by it pursuant to~~ in accordance with the rules and requirements of the SEC since December 31, 1996 through the date hereof (collectively, including all exhibits thereto and any registration statement filed since such date, the "PREIT SEC Documents"). All of the PREIT SEC Documents (other than preliminary material), as of their respective filing dates, complied in all material respects with all applicable requirements of the Securities Act and the ~~Securities Act Rules, or the~~ Exchange Act ~~and the Exchange Act Rules~~and, in each ~~such case since January 1~~case, 2005 (collectively, and in each case including all annexes and schedules thereto and documents incorporated by reference therein, the “Parent SEC Documents”). As of their respective dates (or if subsequently amended or superseded by a filing prior to the date of this Agreement, on the date of such filing), the Parent SEC Documents complied as to form in all material respects with the requirements of the Securities Act or the Exchange Act, as the case may be, and the rules and regulations ~~of the SEC~~ promulgated thereunder applicable to such ~~Parent~~ PREIT SEC Documents~~, and none~~ . None of the ~~Parent~~ PREIT SEC Documents as at the time of ~~such dates contained~~ filing contained, nor will any report, schedule, form, statement or other document filed by PREIT after the date hereof and prior to the Effective Time contain, any untrue statement of a material fact or omitted to state a any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading. ~~To Parent’s Knowledge~~The consolidated financial statements of PREIT included in the PREIT SEC Documents complied, or will comply, as ~~of the date hereof, none of the Parent SEC Documents is the subject of ongoing SEC review. (b) Parent is in compliance with, and has complied,~~ to form in all material respects with ~~(i) the~~ applicable ~~provisions of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002~~ accounting requirements and the related rules and regulations promulgated thereunder, and (ii) the applicable listing and corporate governance rules and regulations of NASDAQ. Parent has established and maintains disclosure controls and procedures and internal control over financial reporting (as such terms are defined in paragraphs (e) and (f), respectively, of Rule 13a-15 under the Exchange Act) as required by Rule 13a-15 under the Exchange Act. Parent’s disclosure controls and procedures are reasonably designed to ensure that all material information required to be disclosed by Parent in the reports that it files or furnishes under the Exchange Act is recorded, processed, summarized and reported within the time periods specified in the rules and forms of the SEC, and that all such material information is accumulated and communicated to the management of Parent as appropriate to allow timely decisions regarding required disclosure and to make the certifications required pursuant to Sections 302 and 906 of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act. The management of Parent has completed its assessment of the effectiveness of Parent’s internal control over financial reporting in compliance with the requirements of Section 404 of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act for the year ended December 31, 2006, and such assessment concluded that such controls were effective to provide reasonable assurance regarding the reliability of Parent’s financial reporting and the preparation of Parent’s financial statements for external purposes in accordance with GAAP. Parent has disclosed, based on its assessment of the effectiveness of Parent’s internal control over financial reporting in compliance with the requirements of Section 404 of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act for the year ended December 31, 2006, to Parent’s independent registered accounting firm and the audit committee of the Board of Directors of Parent (A) any significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect Parent’s ability to record, process, summarize and report financial information and (B) any fraud, whether or not material, of which there is Parent’s Knowledge that involves management or other employees who have a significant role in Parent’s internal control over financial reporting for the year ended December 31, 2006. Parent any has made available to the Company a summary of any such disclosures made by management to such accounting firm or audit committee for the year ended December 31, 2006. (c) The consolidated financial statements of Parent included in the Parent SEC Documents (the “Parent SEC Financial Statements”) (i) have been prepared in accordance with GAAP (except as may be otherwise indicated therein or in the notes thereto and except, in the case of unaudited consolidated quarterly statements, as permitted by Form 10-Q of the Exchange Act), applied on a consistent basis during the periods involved, (ii) complied in all material respects with published rules and regulations of the SEC with respect thereto, ~~and~~ have been or will be prepared in accordance with GAAP (iii) fairly present in all material respects the consolidated financial position of Parent and its consolidated Parent Subsidiaries as of the respective dates thereof and the consolidated statements of income, cash flows and changes in stockholders’ equity for the respective periods then ended (subjectexcept, in the case of unaudited ~~quarterly~~ statements, ~~to normal year-end audit adjustments~~ as permitted by the applicable rules and regulations of the SEC) applied on a consistent basis during the periods involved (except as may be indicated in the notes thereto) and fairly presented, or will fairly present, in all material respects in accordance with the applicable requirements of GAAP and the ~~absence~~ applicable rules and regulations of ~~footnotes~~the SEC, the consolidated financial position of PREIT and its Subsidiaries taken as a whole, as of the dates thereof and the consolidated results of operations and cash flows for the periods then ended (except, in the case of unaudited statements, as permitted by Form 10-Q under the Exchange Act)~~. (d~~. Except as set forth in Schedule 3.6(b) ~~As of March 31~~to the PREIT Disclosure Letter, ~~2007~~PREIT has no Subsidiaries which are not consolidated for accounting purposes. Except for liabilities and obligations set forth in the PREIT SEC Documents or in Schedule 3.6(c) to the PREIT Disclosure Letter, neither ~~Parent~~ PREIT nor any ~~of the Parent Subsidiaries had~~ PREIT Subsidiary has any liabilities or obligations ~~that would have been~~ of any nature (whether accrued, absolute, contingent or otherwise) required by GAAP to be ~~reflected in the~~ set forth on a consolidated balance sheet of ~~Parent and the Parent Subsidiaries as of such date, except (i) for such liabilities and obligations reflected, reserved against~~ PREIT or ~~otherwise disclosed~~ in the ~~consolidated balance sheet of Parent~~ notes thereto and the Parent Subsidiaries as of such date (including the notes thereto) that is included in the Parent SEC Financial Statements and (ii) for such liabilities and obligations as would not be reasonably expected to havewhich, individually or in the aggregate, would reasonably be expected to have a ~~Parent~~ PREIT Material Adverse Effect (it is understood and agreed that the representations and warranties contained in this Section 5.5(d): (x) do not apply to matters described in any of Section 5.4, the other provisions of this Section 5.5, and Sections 5.7, 5.8, 5.9, 5.10, 5.11 and 5.17 (which are addressed exclusively in those Sections) and (y) shall not be deemed breached if such breach relates to a matter which is covered by a representation or warranty of Parent and Merger Sub contained in this Article V (other than this Section 5.5(d)) that contains a “Parent’s Knowledge” qualification)Effect. (e) Since December 31, 2006 to the date of this Agreement, (i) neither Parent nor any Parent Subsidiary nor, to Parent’s Knowledge, any director, officer, auditor, accountant or representative of Parent or any of the Parent Subsidiaries has received any written complaint, allegation, assertion or claim that Parent or any of the Parent Subsidiaries has engaged in improper or illegal accounting or auditing practices or maintains improper or inadequate internal accounting controls relating to Parent and the Parent Subsidiaries, taken as a whole, (ii) no attorney representing Parent or any Parent Subsidiary has made a report to Parent’s chief legal officer, chief executive officer or Board of Directors (or any committee thereof) pursuant to the SEC’s Standards of Professional Conduct for Attorneys (17 CFR Part 205), and (iii) Parent has disclosed to its outside auditors any fraud, whether or not material, of which there is Parent’s Knowledge that involves management or other employees who have a significant role in Parent’s internal control over financial reporting.

Appears in 2 contracts

Sources: Merger Agreement (Crown American Realty Trust), Merger Agreement (Pennsylvania Real Estate Investment Trust)

SEC Documents; Financial Statements; Undisclosed Liabilities. (a) ~~Parent~~ Ouster has filed or furnished on a timely basis all reports, schedules, ~~forms~~ forms, statements, registration statements, prospectuses and ~~registration statements with the SEC~~ other documents required to be filed or furnished by ~~it pursuant to~~ Ouster with the SEC under the Securities Act ~~and the Securities Act Rules,~~ or the Exchange Act ~~and the Exchange Act Rules~~since March 11, ~~in each such case since January 1, 2005~~ 2021 (~~collectively, and in each case including all annexes and schedules thereto and documents incorporated by reference therein,~~ the “~~Parent~~ Ouster SEC Documents”). None of the Subsidiaries of Ouster is required to make or makes any filings with the SEC. (b) As of ~~their~~ its respective ~~dates (or~~ filing date, and, if ~~subsequently amended or superseded by a filing~~ amended, as of the date of the last amendment prior to the date of this Agreement, ~~on the date of such filing), the Parent~~ each Ouster SEC ~~Documents~~ Document complied ~~as to form~~ in all material respects with the requirements of the ~~Securities~~ Exchange Act or the ~~Exchange~~ Securities Act, as the case may be, and the rules and regulations of the SEC promulgated thereunder applicable to such ~~Parent~~ Ouster SEC ~~Documents,~~ Document and ~~none of the Parent SEC Documents as of such dates contained~~ did not contain any untrue statement of a material fact or ~~omitted~~ omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading. (c) The consolidated financial statements of Ouster included in the Ouster SEC Documents (including, in each case, any notes or schedules thereto) (the “Ouster SEC Financial Statements”), comply as to form in all material respects with applicable accounting requirements and the published rules and regulations of the SEC with respect thereto. ~~To Parent’s Knowledge~~The Ouster SEC Financial Statements fairly present, in all material respects, the financial condition and the results of operations, cash flows and changes in stockholders’ equity of Ouster (on a consolidated basis) as of the ~~date hereof~~respective dates of and for the periods referred to in the Ouster SEC Financial Statements, ~~none~~ and were prepared in accordance with GAAP applied on a consistent basis during the periods involved (except as may be indicated in the notes thereto), subject, in the case of interim Ouster SEC Financial Statements, to normal year-end adjustments (which are not material in significance or amount) and the ~~Parent SEC Documents is the subject~~ absence of ~~ongoing SEC review~~notes. (bd) ~~Parent~~ Ouster is in compliance ~~with, and has complied,~~ in all material respects with (i) the applicable provisions of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act ~~of 2002 and the related rules and regulations promulgated thereunder,~~ and (ii) the applicable listing and corporate governance rules and regulations of ~~NASDAQ~~the NYSE. (e) To the Knowledge of Ouster, there are no outstanding or unresolved comments in comment letters received from the SEC staff with respect to any Ouster SEC Documents and none of the Ouster SEC Documents is the subject of ongoing SEC review. ~~Parent~~ To the Knowledge of Ouster, there are no SEC inquiries or investigations, in each case, pending or threatened, regarding any accounting practices of Ouster. (f) Ouster has established and maintains disclosure controls and procedures and internal control over financial reporting (as such terms are defined in paragraphs (e) and (f), respectively, of Rule 13a-15 and paragraph (e) of Rule 15d-15 under the Exchange Act) as required by ~~Rule~~ Rules 13a-15 and 15d-15 under the Exchange Act. ~~Parent~~Ouster’s disclosure controls and procedures are ~~reasonably~~ designed to ensure that all ~~material~~ information (both financial and non-financial) required to be disclosed by ~~Parent~~ Ouster in the reports that it files or furnishes under the Exchange Act is recorded, processed, summarized and reported within the time periods specified in the rules and forms of the SEC, and that all such ~~material~~ information is accumulated and communicated to ~~the~~ Ouster’s management ~~of Parent~~ as appropriate to allow timely decisions regarding required disclosure and to make the certifications required pursuant to Sections 302 and 906 of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act. ~~The management of Parent has completed its assessment of the effectiveness of Parent’s internal control over financial reporting in compliance with the requirements of Section 404 of the~~ Since October 1, 2020, ▇▇▇▇▇~~▇▇▇-▇▇▇▇~~▇ Act for the year ended December 31, 2006, and such assessment concluded that such controls were effective to provide reasonable assurance regarding the reliability of Parent’s financial reporting and the preparation of Parent’s financial statements for external purposes in accordance with GAAP. Parent has disclosed, based on its assessment of the effectiveness of Parent’s internal control over financial reporting in compliance with the requirements of Section 404 of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act for the year ended December 31, 2006, to Parent’s independent registered accounting firm and the audit committee of the Board of Directors of Parent (A) any had no significant deficiencies ~~and~~ or material weaknesses in the design or operation of its internal control over financial reporting ~~which are~~ that would reasonably ~~likely~~ be expected to adversely affect ~~Parent~~Ouster’s ability to record, process, summarize and report financial information and ~~(B)~~ ▇▇▇▇▇▇ does not have Knowledge of any fraud, whether or not material, ~~of which there is Parent’s Knowledge~~ that involves management or other employees who have a significant role in ~~Parent~~Ouster’s internal control over financial reporting for the year ended December 31, 2006. Parent any has made available to the Company a summary of any such disclosures made by management to such accounting firm or audit committee for the year ended December 31, 2006reporting. (cg) The consolidated financial statements of Parent included in the Parent SEC Documents (the “Parent SEC Financial Statements”) (i) have been prepared in accordance with GAAP (except as may be otherwise indicated therein or in the notes thereto and except, in the case of unaudited consolidated quarterly statements, as permitted by Form 10-Q of the Exchange Act), applied on a consistent basis during the periods involved, (ii) complied in all material respects with published rules and regulations of the SEC with respect thereto, and (iii) fairly present in all material respects the consolidated financial position of Parent Ouster and its ~~consolidated Parent~~ Subsidiaries as of the respective dates thereof and the consolidated statements of income, cash flows and changes in stockholders’ equity for the respective periods then ended (subject, in the case of unaudited quarterly statements, to normal year-end audit adjustments and the absence of footnotes). (d) As of March 31, 2007, neither Parent nor any of the Parent Subsidiaries had do not have any liabilities or obligations ~~that would have been~~ of any nature (whether absolute or contingent, asserted or unasserted, known or unknown, primary or secondary, direct or indirect, and whether or not accrued or required ~~by GAAP~~ to be reflected in ~~the consolidated balance sheet of Parent and the Parent Subsidiaries as of such date~~Ouster’s financial statements in accordance with GAAP), except (i) ~~for such liabilities and obligations reflected~~as disclosed, reflected or reserved against ~~or otherwise disclosed~~ in the ~~consolidated~~ most recent unaudited balance sheet ~~of Parent and~~ included in the ~~Parent Subsidiaries as of such date (including~~ Ouster SEC Financial Statements or the notes thereto~~) that is included in the Parent SEC Financial Statements and~~ , (ii) for ~~such~~ liabilities and obligations ~~as would not be reasonably expected to have~~incurred in the ordinary course of business since the date of the most recent unaudited balance sheet included in the Ouster SEC Financial Statements, (iii) for liabilities and obligations arising out of or in connection with this Agreement, the Mergers or the Transactions and (iv) for liabilities and obligations that, individually or in the aggregate, ~~a Parent~~ have not had, and would not reasonably be expected to have, an Ouster Material Adverse Effect (it is understood and agreed that the representations and warranties contained in this Section 5.5(d): (x) do not apply to matters described in any of Section 5.4, the other provisions of this Section 5.5, and Sections 5.7, 5.8, 5.9, 5.10, 5.11 and 5.17 (which are addressed exclusively in those Sections) and (y) shall not be deemed breached if such breach relates to a matter which is covered by a representation or warranty of Parent and Merger Sub contained in this Article V (other than this Section 5.5(d)) that contains a “Parent’s Knowledge” qualification)Effect. (eh) ~~Since December 31, 2006 to the date of this Agreement, (i) neither Parent~~ Neither Ouster nor any ~~Parent Subsidiary nor~~of its Subsidiaries is a party to, or has any commitment to ~~Parent’s Knowledge~~become a party to, any ~~director~~joint venture, ~~officer~~off-balance sheet partnership or any similar Contract (including any Contract or arrangement relating to any transaction or relationship between or among Ouster and any of its Subsidiaries, ~~auditor~~on the one hand, ~~accountant~~ and any unconsolidated affiliate, including any structured finance, special purpose or ~~representative~~ limited purpose entity or Person, on the other hand, or any “off-balance-sheet arrangements” (as defined in Item 303(a) of ~~Parent~~ Regulation S-K under 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, Ouster or any of ~~the Parent~~ its Subsidiaries ~~has received any written complaint, allegation, assertion~~ in Ouster’s or claim that Parent or any of the Parent Subsidiaries has engaged in improper or illegal accounting or auditing practices or maintains improper or inadequate internal accounting controls relating to Parent and the Parent Subsidiaries, taken as a whole, (ii) no attorney representing Parent or any Parent Subsidiary has made a report to Parentsuch Subsidiary’s chief legal officer, chief executive officer or Board of Directors (or any committee thereof) pursuant to the SEC’s Standards of Professional Conduct for Attorneys (17 CFR Part 205), and (iii) Parent has disclosed to its outside auditors any fraud, whether or not material, of which there is Parent’s Knowledge that involves management published financial statements or other ~~employees who have a significant role in Parent’s internal control over financial reporting~~Ouster SEC Documents.

Appears in 2 contracts

Sources: Merger Agreement (Ouster, Inc.), Merger Agreement (Velodyne Lidar, Inc.)

SEC Documents; Financial Statements; Undisclosed Liabilities. (a) ~~Parent~~ The Company has filed all reports, schedules, forms and registration statements with the SEC required to be filed by it pursuant to the Securities Act ~~and the Securities Act Rules,~~ or the Exchange ~~Act and the Exchange Act Rules~~Act, in each such case ~~since~~ from January 1, ~~2005~~ 2014 (collectively, ~~and in each case including all annexes and schedules thereto and documents incorporated by reference therein,~~ the “~~Parent~~ SEC Documents”). As of their respective dates (or if subsequently amended or superseded by a filing prior to the date of this Agreement, on the date of such filing), the ~~Parent~~ SEC Documents ~~complied~~ complied, or if filed or furnished or to become effective subsequent to the date of this Agreement, will comply, as to form in all material respects with the applicable requirements of the Securities Act or the Exchange Act, as the case may be, and ~~the rules and regulations of the SEC promulgated thereunder applicable to such Parent SEC Documents, and~~ none of the ~~Parent~~ SEC Documents as of such dates ~~contained~~ contained, or will contain, any untrue statement of a material fact or ~~omitted~~ omitted, or will omit, to state a material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading~~. To Parent’s Knowledge, as of the date hereof, none of the Parent SEC Documents is the subject of ongoing SEC review~~. (b) Parent is in compliance with, and has complied, in all material respects with (i) the applicable provisions of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002 and the related rules and regulations promulgated thereunder, and (ii) the applicable listing and corporate governance rules and regulations of NASDAQ. Parent has established and maintains disclosure controls and procedures and internal control over financial reporting (as such terms are defined in paragraphs (e) and (f), respectively, of Rule 13a-15 under the Exchange Act) as required by Rule 13a-15 under the Exchange Act. Parent’s disclosure controls and procedures are reasonably designed to ensure that all material information required to be disclosed by Parent in the reports that it files or furnishes under the Exchange Act is recorded, processed, summarized and reported within the time periods specified in the rules and forms of the SEC, and that all such material information is accumulated and communicated to the management of Parent as appropriate to allow timely decisions regarding required disclosure and to make the certifications required pursuant to Sections 302 and 906 of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act. The management of Parent has completed its assessment of the effectiveness of Parent’s internal control over financial reporting in compliance with the requirements of Section 404 of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act for the year ended December 31, 2006, and such assessment concluded that such controls were effective to provide reasonable assurance regarding the reliability of Parent’s financial reporting and the preparation of Parent’s financial statements for external purposes in accordance with GAAP. Parent has disclosed, based on its assessment of the effectiveness of Parent’s internal control over financial reporting in compliance with the requirements of Section 404 of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act for the year ended December 31, 2006, to Parent’s independent registered accounting firm and the audit committee of the Board of Directors of Parent (A) any significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect Parent’s ability to record, process, summarize and report financial information and (B) any fraud, whether or not material, of which there is Parent’s Knowledge that involves management or other employees who have a significant role in Parent’s internal control over financial reporting for the year ended December 31, 2006. Parent any has made available to the Company a summary of any such disclosures made by management to such accounting firm or audit committee for the year ended December 31, 2006. (c) The consolidated financial statements of ~~Parent~~ the Company included in the ~~Parent~~ SEC Documents (the “~~Parent~~ SEC Financial Statements”~~) (i~~) have been prepared in accordance with GAAP (except as may be otherwise indicated therein or in the notes thereto and except, in the case of unaudited consolidated quarterly statements, as permitted by Form 10-Q of the Exchange Act), applied on a consistent basis during the periods involved, ~~(ii) complied in all material respects with published rules and regulations of the SEC with respect thereto,~~ and (~~iii~~except as may be indicated therein or in the notes thereto or as subsequently amended or superseded by a filing prior to the date of this Agreement) fairly present in all material respects the consolidated financial position of ~~Parent~~ the Company and its consolidated ~~Parent~~ Subsidiaries as of the respective dates thereof and the consolidated statements of ~~income~~earnings, ~~cash flows and changes in~~ stockholders’ equity and cash flows for the respective periods then ended (subject, in the case of unaudited quarterly statements, to normal year-end audit adjustments and the absence of footnotes). (dc) ~~As of March 31, 2007, neither Parent~~ Neither the Company nor any of the ~~Parent~~ Company Subsidiaries had any liabilities or obligations that would have been required by GAAP to be reflected in the consolidated balance sheet of ~~Parent and~~ the ~~Parent Subsidiaries as of such date~~Company at June 30, 2016, except (i) for such liabilities and obligations reflected, reserved against or otherwise disclosed in the consolidated balance sheet of ~~Parent and~~ the ~~Parent Subsidiaries as of such date~~ Company (including the notes thereto) that is are included in the ~~Parent~~ SEC Financial Statements ~~and~~ or as otherwise disclosed in the SEC Documents, (ii) for such liabilities and obligations as would not be reasonably expected to have, ~~individually or~~ in the aggregate, a ~~Parent~~ Company Material Adverse Effect and (iii) as set forth in Section 4.5(c) of the Company Disclosure Schedule. (d) Except as set forth in Section 4.5(d) of the Company Disclosure Schedule, the Company is in compliance in all material respects with the applicable provisions of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002 (the “▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act” ) and the related rules and regulations promulgated thereunder. The Company has established and maintains disclosure controls and procedures and internal control over financial reporting (as such terms are defined in paragraphs (e) and (f), respectively, of Rule 13a-15 under the Exchange Act) as required by Rule 13a-15 under the Exchange Act. The Company’s disclosure controls and procedures are reasonably designed to ensure that all material information required to be disclosed by the Company in the reports that it files or submits under the Exchange Act is ~~understood~~ recorded, processed, summarized and ~~agreed~~ reported within the time periods specified in the rules and forms of the SEC, and that all such material information is accumulated and communicated to the ~~representations~~ management of the Company as appropriate to allow timely decisions regarding required disclosure and ~~warranties contained~~ to make the certifications required pursuant to Sections 302 and 906 of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act. Except as disclosed in ~~this~~ the Company SEC Documents, the management of the Company completed its assessment of the effectiveness of the Company’s internal control over financial reporting in compliance with the requirements of Section ~~5.5(d):~~ 404 of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act for the fiscal year ended December 31, 2015, and such assessment concluded that as of December 31, 2015, such controls were effective. The Company’s principal executive officer and its principal financial officer have disclosed, based on their most recent evaluation, to the Company’s auditors and the Audit Committee of the Company Board (x) ~~do not apply to matters described~~ all significant deficiencies, if any, in ~~any~~ the design or operation of ~~Section 5.4, the other provisions of this Section 5.5, and Sections 5.7, 5.8, 5.9, 5.10, 5.11 and 5.17 (~~internal control over financial reporting which are ~~addressed exclusively~~ reasonably likely to adversely affect the Company’s ability to record, process, summarize and report financial data and have identified to such auditors any material weaknesses in ~~those Sections)~~ internal controls and (y) shall not be deemed breached if such breach relates to a matter which is covered by a representation or warranty of Parent and Merger Sub contained in this Article V (other than this Section 5.5(d)) that contains a “Parent’s Knowledge” qualification). (e) Since December 31, 2006 to the date of this Agreement, (i) neither Parent nor any Parent Subsidiary nor, to Parent’s Knowledge, any director, officer, auditor, accountant or representative of Parent or any of the Parent Subsidiaries has received any written complaint, allegation, assertion or claim that Parent or any of the Parent Subsidiaries has engaged in improper or illegal accounting or auditing practices or maintains improper or inadequate internal accounting controls relating to Parent and the Parent Subsidiaries, taken as a whole, (ii) no attorney representing Parent or any Parent Subsidiary has made a report to Parent’s chief legal officer, chief executive officer or Board of Directors (or any committee thereof) pursuant to the SEC’s Standards of Professional Conduct for Attorneys (17 CFR Part 205), and (iii) Parent has disclosed to its outside auditors any fraud, whether or not material, of which there is ~~Parent’s~~ Company Knowledge and that involves management or other employees of the Company or any of the Company Subsidiaries who have a significant role in ~~Parent~~the Company’s internal control over financial reporting. (e) Except as set forth in Section 4.5(e) of the Company Disclosure Schedule, since January 1, 2014 to the date of this Agreement, neither the Company nor any of the Company Subsidiaries nor, to the Company’s Knowledge, any director, officer, employee, auditor, accountant or Representative of the Company or any of the Company Subsidiaries has received or otherwise had or obtained knowledge of any written complaint, allegation, assertion or claim seeking fines, penalties, damages or judicial or administrative redress regarding questionable accounting or auditing practices, procedures or methodologies of the Company or any of the Company Subsidiaries or their respective internal accounting controls. (f) Except as set forth in Section 4.5(f) of the Company Disclosure Schedule, since January 1, 2014 to the date of this Agreement, neither the Company nor any of the Company Subsidiaries has received from the SEC or any other Governmental Entity any written comments or questions that have not been resolved with respect to any of their SEC Documents (including the financial statements included therein) or any registration statement filed by any of them with the SEC or any notice from the SEC or other Governmental Entity that such SEC Documents (including the financial statements included therein) or registration statements are being reviewed or investigated, and to the Company’s Knowledge, there is not, as of the date of this Agreement, any investigation or review being conducted by the SEC or any other Governmental Entity of any SEC Documents (including the financial statements included therein) or registration statements of the Company or any of the Company Subsidiaries. (g) None of the information supplied or to be supplied by the Company for inclusion or incorporation by reference in (i) the Offer Documents, the Schedule 14D-9 or Proxy/Information Statement, if applicable, will, at the time that such document is filed with the SEC, at any time it is amended or supplemented or at the time it is first published, sent or given to the Company’s stockholders, contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading or (ii) the Proxy/Information Statement (and any amendments or supplements thereto) will, when filed with the SEC and at the date that it is first mailed to the Company’s stockholders or at the time of the Stockholders’ Meeting, contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they are made, not misleading. The Schedule 14D-9, and the Proxy/Information Statement (including any amendments or supplements thereto), when filed with the SEC and at the date such materials are first mailed to the Company’s stockholders and, if a Stockholders’ Meeting is required by applicable Law, at the time of such Stockholders’ Meeting, will comply as to form in all material respects with the requirements of the Exchange Act and the rules and regulations thereunder, except that no representation or warranty is made by the Company with respect to statements made or incorporated by reference therein based on information supplied by Parent or Purchaser or any of their respective Representatives for inclusion or incorporation by reference therein.

Appears in 2 contracts

Sources: Merger Agreement (EQT Corp), Agreement and Plan of Merger (Trans Energy Inc)

SEC Documents; Financial Statements; Undisclosed Liabilities. (a) ~~Parent~~ The Company has timely filed ~~all reports, schedules, forms and registration statements~~ with the SEC required to be filed by it pursuant to the Securities Act and the Securities Act Rules, or the Exchange Act and the Exchange Act Rules, in each such case since January 1, 2005 (collectively, and in each case including all ~~annexes and schedules thereto and documents incorporated by reference therein, the “Parent~~ Company SEC Documents”). As of ~~their~~ its respective ~~dates (~~date, each Company SEC Document, including, without limitation, any financial statements or ~~if subsequently amended or superseded by a filing prior to the date of this Agreement~~schedules included therein, ~~on the date of such filing), the Parent SEC Documents~~ complied ~~as to form~~ in all material respects with the requirements of the Securities Act ~~or the~~ and Exchange Act, as the case may be, and the rules and regulations of the SEC promulgated thereunder applicable to such ~~Parent~~ Company SEC Documents, and ~~none of the Parent SEC Documents as of such dates contained~~ did not contain any untrue statement of a material fact or ~~omitted~~ omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading. ~~To Parent’s Knowledge, as of~~ Except to the ~~date hereof~~extent that information contained in any Company SEC Document has been revised or superseded by a later filed Filed Company SEC Document, none of the ~~Parent~~ Company SEC Documents is contains any untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary in order to make the ~~subject~~ statements therein, in light of ~~ongoing SEC review~~the circumstances under which they were made, not misleading. (b) ~~Parent is in compliance with, and has complied,~~ The Financial Statements comply as to form in all material respects with ~~(i) the~~ applicable ~~provisions of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002~~ accounting requirements and the ~~related rules and regulations promulgated thereunder, and (ii) the applicable listing and corporate governance~~ published rules and regulations of ~~NASDAQ. Parent has established and maintains disclosure controls and procedures and internal control over financial reporting (as such terms are defined in paragraphs (e) and (f)~~the SEC with respect thereto, respectively, of Rule 13a-15 under the Exchange Act) as required by Rule 13a-15 under the Exchange Act. Parent’s disclosure controls and procedures are reasonably designed to ensure that all material information required to be disclosed by Parent in the reports that it files or furnishes under the Exchange Act is recorded, processed, summarized and reported within the time periods specified in the rules and forms of the SEC, and that all such material information is accumulated and communicated to the management of Parent as appropriate to allow timely decisions regarding required disclosure and to make the certifications required pursuant to Sections 302 and 906 of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act. The management of Parent has completed its assessment of the effectiveness of Parent’s internal control over financial reporting in compliance with the requirements of Section 404 of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act for the year ended December 31, 2006, and such assessment concluded that such controls were effective to provide reasonable assurance regarding the reliability of Parent’s financial reporting and the preparation of Parent’s financial statements for external purposes in accordance with GAAP. Parent has disclosed, based on its assessment of the effectiveness of Parent’s internal control over financial reporting in compliance with the requirements of Section 404 of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act for the year ended December 31, 2006, to Parent’s independent registered accounting firm and the audit committee of the Board of Directors of Parent (A) any significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect Parent’s ability to record, process, summarize and report financial information and (B) any fraud, whether or not material, of which there is Parent’s Knowledge that involves management or other employees who have a significant role in Parent’s internal control over financial reporting for the year ended December 31, 2006. Parent any has made available to the Company a summary of any such disclosures made by management to such accounting firm or audit committee for the year ended December 31, 2006. (c) The consolidated financial statements of Parent included in the Parent SEC Documents (the “Parent SEC Financial Statements”) (i) have been prepared in accordance with GAAP (~~except as may be otherwise indicated therein or in the notes thereto and~~ except, in the case of unaudited ~~consolidated quarterly~~ statements, as permitted by Form 10-Q of the ~~Exchange Act),~~ SEC) applied on a consistent basis during the periods ~~involved,~~ involved (iiexcept as may be indicated in the notes thereto) ~~complied in all material respects with published rules~~ and ~~regulations of the SEC with respect thereto, and (iii)~~ fairly present ~~in all material respects~~ the consolidated financial position of ~~Parent~~ the Company and its consolidated ~~Parent~~ Subsidiaries as of the ~~respective~~ dates thereof and the consolidated ~~statements~~ results of ~~income,~~ their operations and cash flows ~~and changes in stockholders’ equity~~ for the ~~respective~~ periods then ended (subject, in the case of unaudited ~~quarterly~~ statements, to normal year-end audit ~~adjustments and the absence of footnotes~~adjustments). (dc) ~~As of March 31, 2007, neither Parent nor any of~~ The Company and the ~~Parent~~ Company Subsidiaries ~~had any~~ have no liabilities or obligations ~~that would have been~~ of any nature, whether accrued, absolute, contingent or otherwise, asserted or unasserted, due or to become due, known or unknown, and whether or not required ~~by GAAP~~ to be ~~reflected in the consolidated~~ disclosed on a balance sheet ~~of Parent and the Parent Subsidiaries as of such date~~prepared in accordance with GAAP, except liabilities (i) ~~for such liabilities and obligations reflected,~~ stated or adequately reserved against ~~or otherwise disclosed~~ in the ~~consolidated balance sheet~~ Financial Statements of ~~Parent and~~ the ~~Parent Subsidiaries as of such date (including the notes thereto) that is~~ Company included in the ~~Parent~~ Filed Company SEC ~~Financial Statements and~~ Documents or disclosed in Section 4.06(b) of the Company Disclosure Letter, or (ii) ~~for such liabilities and obligations as would not be reasonably expected to have, individually or~~ incurred in the ~~aggregate, a Parent Material Adverse Effect (it is understood~~ ordinary and ~~agreed that the representations and warranties contained in this Section 5.5(d): (x) do not apply to matters described in any~~ usual course of Section 5.4, the other provisions of this Section 5.5, and Sections 5.7, 5.8, 5.9, 5.10, 5.11 and 5.17 (which are addressed exclusively in those Sections) and (y) shall not be deemed breached if such breach relates to a matter which is covered by a representation or warranty of Parent and Merger Sub contained in this Article V (other than this Section 5.5(d)) that contains a “Parent’s Knowledge” qualification). (e) Since business since December 31, 2006 to the date of this Agreement, (i) neither Parent nor any Parent Subsidiary nor, to Parent’s Knowledge, any director, officer, auditor, accountant or representative of Parent or any of the Parent Subsidiaries has received any written complaint, allegation, assertion or claim that Parent or any of the Parent Subsidiaries has engaged in improper or illegal accounting or auditing practices or maintains improper or inadequate internal accounting controls relating to Parent and the Parent Subsidiaries, taken as a whole, (ii) no attorney representing Parent or any Parent Subsidiary has made a report to Parent’s chief legal officer, chief executive officer or Board of Directors (or any committee thereof) pursuant to the SEC’s Standards of Professional Conduct for Attorneys (17 CFR Part 205), and (iii) Parent has disclosed to its outside auditors any fraud, whether or not material, of which there is Parent’s Knowledge that involves management or other employees who have a significant role in Parent’s internal control over financial reporting2000.

Appears in 2 contracts

Sources: Merger Agreement (Foilmark Inc), Merger Agreement (Illinois Tool Works Inc)

SEC Documents; Financial Statements; Undisclosed Liabilities. (a) ~~Parent~~ The Company has filed or furnished all ~~reports~~forms, ~~schedules, forms~~ reports and ~~registration statements with the SEC~~ other documents required to be filed or furnished by ~~it pursuant to~~ the Company with the SEC under the Securities Act ~~and the Securities Act Rules,~~ or the Exchange Act ~~and~~ (all such documents filed or furnished by the ~~Exchange Act Rules~~Company, ~~in each such case~~ the “Company SEC Documents”) since January 1, ~~2005~~ 2019. None of the Subsidiaries of the Company is required to make any filings with the SEC. (~~collectively, and in each case including all annexes and schedules thereto and documents incorporated by reference therein, the “Parent SEC Documents”).~~ b) As of ~~their~~ its respective ~~dates~~ filing date (or or, if ~~subsequently~~ amended or superseded ~~by a filing~~ prior to the date of this Agreement, on the date of such filing~~), the Parent~~ ) each Company SEC ~~Documents~~ Document complied as to form in all material respects with the requirements of the ~~Securities Act or~~ SOX, the Exchange Act, and the Securities Act, as the case may be, and the rules and regulations of the SEC promulgated thereunder applicable to such ~~Parent~~ Company SEC ~~Documents~~Document, and ~~none~~ did not, at the time it was filed or furnished (or, if amended or superseded prior to the date of this Agreement, on the ~~Parent SEC Documents as~~ date of such ~~dates contained~~ filing), contain any untrue statement of a material fact or ~~omitted~~ omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading~~. To Parent’s Knowledge, as~~ . (c) As of the date ~~hereof~~of this Agreement, ~~none of~~ the ~~Parent SEC Documents~~ Company is a “foreign private issuer” as such term is defined under the ~~subject of ongoing SEC review~~Exchange Act. (bd) ~~Parent is~~ Each of the consolidated financial statements of the Company included in ~~compliance with~~the Company SEC Documents (including, in each case, any notes thereto) was prepared in accordance with GAAP applied on a consistent basis throughout the periods indicated (except as may be indicated in notes thereto or, in the case of unaudited statements, as permitted by the rules and ~~has complied~~regulations of the SEC) and each fairly presented, in all material ~~respects with~~ respects, the consolidated financial position, the results of operations, cash flows and changes in shareholders’ equity of the Company and its Subsidiaries as and at the respective dates thereof and for the respective periods indicated therein (subject, in the case of unaudited interim statements, to normal year-end audit adjustments). Except as have been described in the Company SEC Documents, there are no unconsolidated Subsidiaries of the Company or any off-balance sheet arrangements of the type required to be disclosed pursuant to Item 303 of Regulation S-K promulgated by the SEC. (e) Except as and to the extent set forth in the unaudited consolidated balance sheet of the Company and its consolidated Subsidiaries of the Company as of March 31, 2022, including the notes thereto (the “Most Recent Balance Sheet”), which was made available to Parent, neither the Company nor any Subsidiary of the Company has any liability or obligation of any nature (whether accrued, absolute, contingent or otherwise) required to be disclosed by GAAP, except for liabilities or obligations (i) incurred since March 31, 2022 in the ~~applicable provisions~~ ordinary course of business, (ii) in the form of executory obligations under any Contract to which the Company or any of its Subsidiaries is a party or is bound and that are not in the nature of material breaches of such Contracts, (iii) incurred in connection with fees and expenses of legal counsel, accountants and other third party advisors or services providers, (iv) incurred in connection with fees and expenses of legal counsel, accountants and other third party advisors or service providers, (v) incurred in connection with the preparation and negotiation of this Agreement or pursuant to this Agreement or in connection with the Transactions, or (vi) that would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect. (f) Each of the ▇principal executive officer of the Company and the principal financial officer of the Company (and each former principal executive officer of the Company and each former principal financial officer of the Company, as applicable) has made all certifications required by Rule 13a-14 or 15d-14 under the Exchange Act and 18 U.S.C. Section 1350 (Section 906 of the S▇▇▇▇▇▇▇-▇▇▇▇▇ Act ~~of 2002~~ (“SOX”)) and the ~~related~~ rules and regulations promulgated ~~thereunder~~thereunder with respect to the Company SEC Documents filed or furnished with the SEC, and prior to the date of this Agreement, neither the Company nor any of its executive officers has received written notice from any Governmental Entity challenging or questioning the accuracy, completeness, form or manner of filing such certifications. For purposes of this Section 3.6(f), “principal executive officer” and “principal financial officer” have the meanings given to such terms in SOX. Neither the Company nor any of the Subsidiaries of the Company has outstanding, or has arranged any outstanding “extensions of credit” to directors or executive officers within the meaning of Section 402 of SOX. (g) The Company has implemented, and at all time since January 1, 2019, has maintained a system of financial controls over financial reporting designed to provide reasonable assurances regarding the reliability of financial reporting and the preparation of financial statements for external purposes, including to provide reasonable assurance: (i) that transactions are executed in accordance with management’s general or special authorizations; (ii) that transactions are recorded as necessary to permit preparation of financial statements in conformity with GAAP; (iii) regarding prevention or timely detection of unauthorized acquisition, use or disposition of the ~~applicable listing~~ assets of the Company and ~~corporate governance rules~~ its Subsidiaries, as applicable, that could have a material effect on the Company’s financial statements; (iv) that the maintenance of records in reasonable detail accurately and ~~regulations~~ fairly reflect the transactions and dispositions of ~~NASDAQ. Parent has established~~ the assets of the Company on a consolidated basis; and (v) that the recorded accountability for assets is compared with the existing assets at reasonable intervals and appropriate action is taken with respect to any differences. (h) The Company and its Subsidiaries keep books, records and accounts which, in reasonable detail, accurately and fairly reflect the transactions and dispositions of the assets of the Company or Subsidiary, and maintains a system of internal accounting controls sufficient to provide reasonable assurances that: (i) transactions are executed in accordance with management’s general or specific authorization; (ii) transactions are recorded as necessary to permit preparation of financial statements in conformity with generally accepted accounting principles or any other criteria applicable to such statements, and to maintain accountability for assets; (iii) access to assets is permitted only in accordance with management’s general or specific authorization; and (iv) the recorded accountability for assets is compared with the existing assets at reasonable intervals and appropriate action is taken with respect to any differences. (i) The Company has (i) implemented and maintained “disclosure controls and ~~procedures and internal control over financial reporting~~ procedures” (as ~~such terms are~~ defined in ~~paragraphs (e~~Rules 13a-15(e) and ~~(f), respectively,~~ 15d-15(e) of ~~Rule 13a-15 under~~ the Exchange Act) ~~as required by Rule 13a-15 under the Exchange Act. Parent’s disclosure controls and procedures~~ that are ~~reasonably~~ designed to ensure that ~~all~~ material information that is required to be disclosed by ~~Parent~~ the Company in the reports that it files or ~~furnishes~~ submits under the Exchange ~~Act~~ Act, is recorded, processed, summarized and reported within the time periods specified in the rules and forms of the ~~SEC,~~ SEC and ~~that all such material information~~ is accumulated and ~~communicated~~ made known to ~~the management of Parent~~ its principal executive officer and principal financial officer as appropriate to allow timely decisions regarding required disclosure and to make the certifications required pursuant to Sections 302 and 906 of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act. The management of Parent has completed its assessment of the effectiveness of Parent’s internal control over financial reporting in compliance with the requirements of Section 404 of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act for the year ended December 31, 2006, and such assessment concluded that such controls were effective to provide reasonable assurance regarding the reliability of Parent’s financial reporting and the preparation of Parent’s financial statements for external purposes in accordance with GAAP. Parent has (ii) disclosed, based on its ~~assessment~~ most recent evaluation prior to the date of this Agreement to the ~~effectiveness of Parent~~Company’s internal control over financial reporting in compliance with the requirements of Section 404 of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act for the year ended December 31, 2006, to Parent’s independent registered accounting firm outside auditors and the audit committee of the ~~Board of Directors of Parent~~ Company Board, (A) any significant deficiencies and material weaknesses in the design or operation of “internal control over financial ~~reporting which are~~ reporting” (as defined in Rules 13a-15(f) and 15d-15(f) of the Exchange Act) that would be reasonably likely to adversely affect ~~Parent~~in any material way the Company’s ability to record, process, summarize and report financial information and (B) any fraud, whether or not material, ~~of which there is Parent’s Knowledge~~ that involves management or other employees who have a significant role in ~~Parent~~the Company’s “internal control over financial reporting.” Any material change in internal control over financial reporting ~~for the year ended December 31, 2006. Parent~~ required to be disclosed in any ~~has made available~~ Company SEC Document on or prior to the ~~Company a summary~~ date of ~~any such disclosures made by management to such accounting firm or audit committee for the year ended December 31, 2006~~this Agreement has been so disclosed. (c) The consolidated financial statements of Parent included in the Parent SEC Documents (the “Parent SEC Financial Statements”) (i) have been prepared in accordance with GAAP (except as may be otherwise indicated therein or in the notes thereto and except, in the case of unaudited consolidated quarterly statements, as permitted by Form 10-Q of the Exchange Act), applied on a consistent basis during the periods involved, (ii) complied in all material respects with published rules and regulations of the SEC with respect thereto, and (iii) fairly present in all material respects the consolidated financial position of Parent and its consolidated Parent Subsidiaries as of the respective dates thereof and the consolidated statements of income, cash flows and changes in stockholders’ equity for the respective periods then ended (subject, in the case of unaudited quarterly statements, to normal year-end audit adjustments and the absence of footnotes). (dj) As of March 31, 2007, neither Parent nor any of the Parent Subsidiaries had any liabilities or obligations that would have been required by GAAP to be reflected in the consolidated balance sheet of Parent and the Parent Subsidiaries as of such date, except (i) for such liabilities and obligations reflected, reserved against or otherwise disclosed in the consolidated balance sheet of Parent and the Parent Subsidiaries as of such date (including the notes thereto) that is included in the Parent SEC Financial Statements and (ii) for such liabilities and obligations as would not be reasonably expected to have, individually or in the aggregate, a Parent Material Adverse Effect (it is understood and agreed that the representations and warranties contained in this Section 5.5(d): (x) do not apply to matters described in any of Section 5.4, the other provisions of this Section 5.5, and Sections 5.7, 5.8, 5.9, 5.10, 5.11 and 5.17 (which are addressed exclusively in those Sections) and (y) shall not be deemed breached if such breach relates to a matter which is covered by a representation or warranty of Parent and Merger Sub contained in this Article V (other than this Section 5.5(d)) that contains a “Parent’s Knowledge” qualification). (e) Since December 31, 2006 to the date of this Agreement, (i) ~~neither Parent~~ there are no outstanding unresolved comments with respect to the Company or the Company SEC Documents filed or furnished with the SEC noted in comment letters or, to the Knowledge of the Company, other correspondence received by the Company or its attorneys from the SEC and (ii) there are no pending or threatened (A) formal or informal investigation or other review of, or Proceeding against, the Company or any of its directors or officers by the SEC or (B) inspection of an audit of the Company’s financial statements by the Public Company Accounting Oversight Board. (k) The Company has adopted a code of ethics, as defined by Item 16B of Form 20-F of the SEC, for senior financial officers, applicable to its principal financial officer, comptroller or principal accounting officer, or persons performing similar functions. The Company has promptly disclosed any change in or waiver of the Company’s code of ethics with respect to any such persons, as required by Item 16B of Form 20-F. (l) Neither the Company nor any ~~Parent Subsidiary nor~~of the Subsidiaries of the Company is a party to, or has any commitment to ~~Parent’s Knowledge~~become a party to, any ~~director~~joint venture, ~~officer~~off-balance sheet partnership or any similar Contract (including any Contract or arrangement relating to any transaction or relationship between or among the Company and any of the Subsidiaries of the Company, ~~auditor~~on the one hand, ~~accountant~~ and any unconsolidated affiliate, including any structured finance, special purpose or ~~representative~~ limited purpose entity or Person, on the other hand, or any “off-balance sheet arrangements” (as contemplated by Instruction 8 to Item 303(b) of ~~Parent~~ Regulation S-K under 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, the Company or any of the ~~Parent~~ Subsidiaries of the Company in the Company’s or such Subsidiary’s published financial statements or the Company SEC Documents. (m) Since January 1, 2019, none of the Company, the Company Board or the audit committee of the Company Board has received any oral or written notification of any (A) “significant deficiency” in the internal controls over financial reporting of the Company, (B) “material weakness” in the internal controls over financial reporting of the Company or (C) fraud, whether or not material, that involves management or other employees of the Company who have a significant role in the internal controls over financial reporting of the Company. (n) Since January 1, 2019, (i) neither the Company nor any its Subsidiaries or any of their respective Representatives has received any complaint, allegation, assertion or claim, whether written or oral, regarding the accounting or auditing practices, procedures, methodologies or methods of the Company or any of its Subsidiaries or their respective internal accounting controls, including any complaint, allegation, assertion or claim that ~~Parent~~ the Company or any of ~~the Parent~~ its Subsidiaries has engaged in ~~improper or illegal~~ questionable accounting or auditing ~~practices or maintains improper or inadequate internal accounting controls relating~~ practices, in each case which set forth allegations of circumstances that if determined to ~~Parent~~ be true, would be material to the Company and ~~the Parent~~ its Subsidiaries, taken as a whole, and (ii) no attorney representing ~~Parent~~ the Company or any ~~Parent Subsidiary~~ of its Subsidiaries has ~~made~~ reported evidence of a ~~report~~ material violation of securities Laws, breach of fiduciary duty or similar violation by the Company or any of its Representatives to ~~Parent’s chief legal officer, chief executive officer or~~ the Company Board ~~of Directors (~~or any committee ~~thereof)~~ thereof or to any non-employee director or the Chief Executive Officer of the Company pursuant to Section 307 of SOX. (o) Section 3.6(o) of the ~~SEC’s Standards~~ Company Disclosure Schedule contains a true, correct and complete list of ~~Professional Conduct for Attorneys~~ all indebtedness of the Company and its Subsidiaries, or guarantees of indebtedness of any Person by the Company or any of its Subsidiaries (~~17 CFR Part 205~~excluding agreements between the Company and any wholly owned Subsidiary of the Company or between wholly owned Subsidiaries of the Company or pursuant to which the Company or any of its Subsidiaries guarantees any such indebtedness of a wholly owned Subsidiary of the Company), and all definitive primary Contracts related thereto (~~iii) Parent~~ collectively, “Indebtedness Contracts”). The Company has ~~disclosed~~ made available a true, correct and complete copy of each Indebtedness Contract. With respect to each such item of indebtedness, none of the Company or any of its ~~outside auditors any fraud, whether or not material, of which there~~ Subsidiaries is ~~Parent’s Knowledge that involves management or other employees who have a significant role~~ in ~~Parent’s internal control over financial reporting~~default and no payments are past due.

Appears in 2 contracts

Sources: Merger Agreement (Maxlinear Inc), Merger Agreement (Maxlinear Inc)

SEC Documents; Financial Statements; Undisclosed Liabilities. (a) ~~Parent~~ The Company has filed or furnished on a timely basis all reports, schedules, ~~forms~~ forms, statements, registration statements, prospectuses and ~~registration statements with the SEC~~ other documents required to be filed or furnished by ~~it pursuant to~~ the Company with the SEC under the Securities Act ~~and the Securities Act Rules,~~ or the Exchange Act ~~and the Exchange Act Rules, in each such case~~ since January 1, ~~2005~~ 2020, together with all certifications required pursuant to the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002, as amended (the “▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act”) (such documents and any other documents filed or furnished by the Company with the SEC, as they have been supplemented, modified or amended since the time of filing, collectively~~, and in each case including all annexes and schedules thereto and documents incorporated by reference therein~~, the “~~Parent~~ Company SEC Documents”). None of the Subsidiaries of the Company is required to make any filings with the SEC or is subject to the reporting requirements of Section 13(a) or 15(d) of the Exchange Act. (b) As of ~~their~~ its respective ~~dates~~ filing date (or or, if ~~subsequently~~ amended or superseded ~~by a filing~~ prior to the date of this Agreement, on the date of the last such filing~~), the Parent~~ ) each Company SEC ~~Documents~~ Document complied ~~as to form~~ in all material respects with the requirements of the ~~Securities~~ Exchange Act or the ~~Exchange~~ Securities Act, as the case may be, and the rules and regulations of the SEC promulgated thereunder applicable to such ~~Parent~~ Company SEC ~~Documents,~~ Document and ~~none of the Parent SEC Documents as of such dates contained~~ did not contain any untrue statement of a material fact or ~~omitted~~ omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, in each case when filed or furnished, or with respect to any proxy statement filed pursuant to the Exchange Act, on the date of the applicable meeting. ~~To Parent’s Knowledge, as~~ As of the date ~~hereof~~of this Agreement, ~~none of~~ there are no outstanding or unresolved comments received from the ~~Parent~~ SEC with respect to any Company SEC Documents. There has been no material correspondence between the SEC and the Company since January 1, 2020 that is not set forth in the Company SEC Documents is or that has not otherwise been disclosed to Parent prior to the ~~subject of ongoing SEC review~~date hereof. (bc) ~~Parent is~~ The consolidated financial statements of the Company included in ~~compliance with~~the Company SEC Documents (including, ~~and has complied~~in each case, any notes or schedules thereto) (the “Company SEC Financial Statements”) (i) complied as to form in all material respects with ~~(i)~~ the applicable ~~provisions of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002~~ accounting requirements and the ~~related rules and regulations promulgated thereunder, and (ii) the applicable listing and corporate governance~~ published rules and regulations of ~~NASDAQ. Parent has established~~ the SEC with respect thereto in effect at the time of such filing, (ii) fairly present, in all material respects, the financial condition and ~~maintains disclosure controls~~ the results of operations, cash flows and ~~procedures~~ changes in stockholders’ equity of the Company and ~~internal control over financial reporting~~ its Subsidiaries (on a consolidated basis) as of the respective dates of and for the periods referred to in the Company SEC Financial Statements, and (iii) were prepared in accordance with GAAP (as in effect in the United States on the date of such ~~terms~~ Company SEC Financial Statement) as applied by the Company on a consistent basis throughout the periods covered thereby (except as may be indicated in the notes thereto or, in the case of unaudited statements, as permitted by Form 10-Q of the SEC), subject, in the case of interim Company SEC Financial Statements, to normal year-end adjustments that are not material in amount or nature and the absence of notes. None of the Company or its Subsidiaries is a party to, or has any obligation or other commitment to become a party to, any “off balance sheet arrangement” (as defined in ~~paragraphs~~ Item 303(a) of Regulation S-K promulgated by the SEC). (ed) The Company has filed or furnished all certifications and statements required by (~~f), respectively, of~~ i) Rule ~~13a-15~~ 13a-14 or Rule 15d-14 under the Exchange Act; or (ii) as required by Rule 13a-15 under the Exchange Act. Parent’s disclosure controls and procedures are reasonably designed to ensure that all material information required to be disclosed by Parent in the reports that it files or furnishes under the Exchange Act is recorded, processed, summarized and reported within the time periods specified in the rules and forms of the SEC, and that all such material information is accumulated and communicated to the management of Parent as appropriate to allow timely decisions regarding required disclosure and to make the certifications required pursuant to Sections 302 and 18 U.S.C. Section 1350 (Section 906 of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act) with respect to all applicable Company SEC Documents. The ~~management of Parent has completed~~ Company maintains disclosure controls and procedures required and as defined by Rule 13a-15 or Rule 15d-15 under the Exchange Act, which such controls and procedures are reasonably designed to ensure that all material information concerning the Company and its ~~assessment~~ Subsidiaries is made known on a timely basis to the individuals responsible for the preparation of the ~~effectiveness~~ Company SEC Documents. (e) The Company has designed and maintains a system of ~~Parent’s~~ disclosure controls and procedures and internal control over financial reporting (as defined in ~~compliance with the requirements of Section 404~~ Rules 13a-15(f) and 15d-15(f) of the ~~▇▇▇▇▇▇▇▇-▇▇▇▇▇~~ Exchange Act) as required by Rule 13a-15 under the Exchange Act ~~for the year ended December 31, 2006,~~ and ~~such assessment concluded that such controls were effective~~ sufficient in all material respects to provide reasonable ~~assurance~~ assurances regarding the reliability of ~~Parent’s~~ financial reporting for the Company and ~~the preparation of Parent’s financial statements~~ its Subsidiaries for external purposes in accordance with GAAP. ~~Parent has disclosed~~There were no material weaknesses, ~~based~~ and except for a significant deficiency described on ~~its~~ Section 3.5(e) of the Company Disclosure Schedule, no significant deficiencies, identified in management’s assessment of ~~the effectiveness of Parent’s~~ internal control over financial reporting ~~in compliance with the requirements~~ as of ~~Section 404 of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act~~ and for the year ended December 31, ~~2006, to Parent’s independent registered accounting firm and the audit committee~~ 2021 (nor has any such weakness or additional deficiency been identified as of the ~~Board of Directors of Parent (A~~date hereof) ~~any significant deficiencies and material weaknesses in the design~~ or ~~operation of internal control over financial reporting which are reasonably likely to adversely affect Parent’s ability to record, process, summarize and report financial information and (B)~~ any fraud, whether or not material, ~~of which there is Parent’s Knowledge~~ that involves the management or other employees of the Company or any of its Subsidiaries who have a significant role in ~~Parent~~the Company’s internal control over financial ~~reporting for~~ reporting. None of the ~~year ended December 31~~Company, ~~2006. Parent~~ any ~~has made available~~ of its Subsidiaries or, to the Company a summary of any such disclosures made by management to such accounting firm or audit committee for the year ended December 31, 2006. (c) The consolidated financial statements of Parent included in the Parent SEC Documents (the “Parent SEC Financial Statements”) (i) have been prepared in accordance with GAAP (except as may be otherwise indicated therein or in the notes thereto and except, in the case of unaudited consolidated quarterly statements, as permitted by Form 10-Q Knowledge of the Exchange Act), applied on a consistent basis during the periods involved, (ii) complied in all material respects with published rules and regulations of the SEC with respect thereto, and (iii) fairly present in all material respects the consolidated financial position of Parent and its consolidated Parent Subsidiaries as of the respective dates thereof and the consolidated statements of income, cash flows and changes in stockholders’ equity for the respective periods then ended (subject, in the case of unaudited quarterly statements, to normal year-end audit adjustments and the absence of footnotes). (d) As of March 31, 2007, neither Parent nor any of the Parent Subsidiaries had any liabilities or obligations that would have been required by GAAP to be reflected in the consolidated balance sheet of Parent and the Parent Subsidiaries as of such date, except (i) for such liabilities and obligations reflected, reserved against or otherwise disclosed in the consolidated balance sheet of Parent and the Parent Subsidiaries as of such date (including the notes thereto) that is included in the Parent SEC Financial Statements and (ii) for such liabilities and obligations as would not be reasonably expected to have, individually or in the aggregate, a Parent Material Adverse Effect (it is understood and agreed that the representations and warranties contained in this Section 5.5(d): (x) do not apply to matters described in any of Section 5.4, the other provisions of this Section 5.5, and Sections 5.7, 5.8, 5.9, 5.10, 5.11 and 5.17 (which are addressed exclusively in those Sections) and (y) shall not be deemed breached if such breach relates to a matter which is covered by a representation or warranty of Parent and Merger Sub contained in this Article V (other than this Section 5.5(d)) that contains a “Parent’s Knowledge” qualification). (e) Since December 31, 2006 to the date of this Agreement, (i) neither Parent nor any Parent Subsidiary nor, to Parent’s KnowledgeCompany, any director, officer, employee, auditor, ~~accountant~~ accountant, attorney representing the Company or ~~representative~~ other Representative of ~~Parent~~ the Company or any of ~~the Parent Subsidiaries~~ its Subsidiaries, has received or made any written material complaint, allegation, assertion or claim, regarding the accounting or auditing practices, procedures, methodologies or methods of the Company or any of its Subsidiaries or their respective internal accounting controls, including any written material complaint, allegation, assertion or claim that ~~Parent~~ the Company or any of ~~the Parent~~ its Subsidiaries has engaged in improper ~~or illegal~~ accounting or auditing ~~practices~~ practices. (f) The Company and its Subsidiaries do not have any liabilities or ~~maintains improper~~ obligations of any nature (whether absolute or ~~inadequate internal accounting controls relating~~ contingent, asserted or unasserted, known or unknown, primary or secondary, direct or indirect, and whether or not accrued), required by GAAP to ~~Parent and~~ be reflected or reserved on a consolidated balance sheet of the ~~Parent Subsidiaries~~Company (or the notes thereto) except (i) as disclosed, ~~taken as a whole~~reflected or adequately reserved against in the most recent balance sheet included in the Company SEC Financial Statements or the notes thereto, (ii) ~~no attorney representing Parent or any Parent Subsidiary has made a report to Parent’s chief legal officer~~for liabilities and obligations incurred in the ordinary course of business since the date of the most recent balance sheet included in the Company SEC Financial Statements, ~~chief executive officer or Board of Directors~~ (~~or any committee thereof~~iii) for liabilities and obligations incurred pursuant to the ~~SEC’s Standards~~ Transactions, (iv) for liabilities incurred that have been discharged or paid in full prior to the date of ~~Professional Conduct~~ this Agreement and (v) for ~~Attorneys (17 CFR Part 205)~~liabilities and obligations that, individually or in the aggregate, have not had, and ~~(iii) Parent has disclosed~~ would not reasonably be expected to ~~its outside auditors any fraud~~have, ~~whether or not material, of which there is Parent’s Knowledge that involves management or other employees who have~~ a ~~significant role in Parent’s internal control over financial reporting~~Company Material Adverse Effect.

Appears in 2 contracts

Sources: Merger Agreement (Usa Truck Inc), Merger Agreement (Usa Truck Inc)

SEC Documents; Financial Statements; Undisclosed Liabilities. (a) ~~Parent~~ The Company has timely filed ~~all reports~~with, ~~schedules, forms and registration statements with~~ furnished or otherwise transmitted to the SEC required to be filed by it pursuant to the Securities Act and the Securities Act Rules, or the Exchange Act and the Exchange Act Rules, in each such case since January 1, 2005 (collectively, and in each case including all ~~annexes and schedules thereto and documents incorporated by reference therein, the “Parent~~ Company SEC Documents”). As of ~~their~~ its respective ~~dates~~ date, each Company SEC Document (including any financial statements or ~~if subsequently amended or superseded by a filing prior to the date of this Agreement, on the date of such filing), the Parent SEC Documents~~ schedules included therein) complied ~~as to form~~ in all material respects with the requirements of the Securities Act ~~or the~~ and Exchange Act, as the case may be, and the rules and regulations of the SEC promulgated thereunder applicable to such ~~Parent~~ Company SEC Documents, and ~~none of the Parent SEC Documents as of such dates contained~~ did not contain any untrue statement of a material fact or ~~omitted~~ omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading. ~~To Parent’s Knowledge, as of~~ Except to the ~~date hereof~~extent that information contained in any Company SEC Document has been revised or superseded by a later dated Company SEC Document, none of the Company SEC Documents contains any untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading. The Company has timely responded to all comment letters of the staff of the SEC relating to the Company SEC Documents, and the SEC has not advised the Company that any final responses are inadequate, insufficient or otherwise non-responsive. The Company has made available to Parent true, correct and complete copies of all correspondence between the SEC, on the one hand, and the Company and any Company Subsidiaries, on the other, occurring since December 31, 2002 and prior to the date hereof and will, reasonably promptly following the receipt thereof, make available to Parent any such correspondence sent or received after the date hereof. To the Knowledge of the Company, none of the Company SEC Documents is the subject of ongoing SEC ~~review~~review or outstanding SEC comment. (b) ~~Parent~~ As of their respective dates, the Financial Statements complied as to form in all material respects with applicable accounting requirements and the published rules and regulations of the SEC with respect thereto, having been prepared in accordance with GAAP (except, in the case of unaudited statements, for the absence of footnotes) applied on a consistent basis during the periods involved (except as may be indicated in the notes thereto) and fairly presented in all material respects the consolidated financial position of the Company and its consolidated Subsidiaries as of the dates thereof and the consolidated results of their operations and cash flows for the periods then ended (subject, in the case of unaudited statements, to normal year-end adjustments). (c) The Company and the Company Subsidiaries have no liabilities, whether accrued, absolute, contingent or otherwise, and whether or not required to be disclosed on a balance sheet prepared in accordance with GAAP, except liabilities (i) stated or reserved against in the Financial Statements of the Company included in the Filed Company SEC Documents or disclosed in Section 4.06(c) of the Company Disclosure Schedule, (ii) incurred in the ordinary and usual course of business pursuant to Contracts or since December 31, 2004, (iii) incurred in connection with this Agreement or the Merger or (iv) that, individually and in the aggregate, have not had, and would not reasonably be expected to have, a Company Material Adverse Effect. (d) Since the enactment of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002 (the “▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act”), the Company has been and is in compliance ~~with, and has complied,~~ in all material respects with (iA) the applicable provisions of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act ~~of 2002 and the related rules and regulations promulgated thereunder,~~ and (iiB) the applicable listing and corporate governance rules and regulations of ~~NASDAQ~~the Nasdaq. The Company has made available to Parent true, correct and complete copies of all correspondence between the Nasdaq, on the one hand, and the Company and any Company Subsidiaries, on the other, occurring since December 31, 2002 and prior to the date hereof and will, reasonably promptly following the receipt thereof, make available to Parent any such correspondence sent or received after the date hereof. (e) The Company has ~~established and maintains~~ disclosure controls and procedures ~~and internal control over financial reporting (as such terms~~ that are defined in paragraphs (e) and (f), respectively, of Rule 13a-15 under the Exchange Act) as required by Rule 13a-15 under the Exchange Act. Parent’s disclosure controls and procedures are reasonably designed effective to ensure that ~~all~~ material information ~~required~~ relating to ~~be disclosed by Parent in~~ the ~~reports that it files or furnishes under~~ Company, including the ~~Exchange Act~~ Company Subsidiaries, is ~~recorded, processed, summarized~~ made known to the Chief Executive Officer and ~~reported within~~ the ~~time periods specified in the rules and forms~~ Chief Financial Officer of the SEC, and that all such material information is accumulated and communicated to the management of Parent as appropriate to allow timely decisions regarding required disclosure and to make the certifications required pursuant to Sections 302 and 906 of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act. Company by others within those entities. (f) The management of Parent has completed its assessment of the effectiveness of Parent’s internal control over financial reporting in compliance with the requirements of Section 404 of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act for the year ended December 31, 2006, and such assessment concluded that such controls were effective to provide reasonable assurance regarding the reliability of Parent’s financial reporting and the preparation of Parent’s financial statements for external purposes in accordance with GAAP. Parent Company has disclosed, based on its ~~assessment of~~ most recent evaluation prior to the effectiveness of Parent’s internal control over financial reporting in compliance with the requirements of Section 404 of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act for the year ended December 31, 2006date hereof, to ~~Parent~~the Company’s ~~independent registered accounting firm~~ auditors and the audit committee of the Company’s Board of Directors of and to Parent (A) any significant deficiencies and material weaknesses in the design or operation of internal ~~control~~ controls over financial reporting which are reasonably likely to adversely affect ~~Parent~~the Company’s ability to record, process, summarize and report financial information and (B) any fraud, whether or not material, ~~of which there is Parent’s Knowledge~~ that involves management or other employees who have a significant role in ~~Parent~~the Company’s internal control over financial reporting for the year ended December 31, 2006. Parent any has made available to the Company a summary of any such disclosures made by management to such accounting firm or audit committee for the year ended December 31, 2006. (c) The consolidated financial statements of Parent included in the Parent SEC Documents (the “Parent SEC Financial Statements”) (i) have been prepared in accordance with GAAP (except as may be otherwise indicated therein or in the notes thereto and except, in the case of unaudited consolidated quarterly statements, as permitted by Form 10-Q of the Exchange Act), applied on a consistent basis during the periods involved, (ii) complied in all material respects with published rules and regulations of the SEC with respect thereto, and (iii) fairly present in all material respects the consolidated financial position of Parent and its consolidated Parent Subsidiaries as of the respective dates thereof and the consolidated statements of income, cash flows and changes in stockholders’ equity for the respective periods then ended (subject, in the case of unaudited quarterly statements, to normal year-end audit adjustments and the absence of footnotes). (d) As of March 31, 2007, neither Parent nor any of the Parent Subsidiaries had any liabilities or obligations that would have been required by GAAP to be reflected in the consolidated balance sheet of Parent and the Parent Subsidiaries as of such date, except (i) for such liabilities and obligations reflected, reserved against or otherwise disclosed in the consolidated balance sheet of Parent and the Parent Subsidiaries as of such date (including the notes thereto) that is included in the Parent SEC Financial Statements and (ii) for such liabilities and obligations as would not be reasonably expected to have, individually or in the aggregate, a Parent Material Adverse Effect (it is understood and agreed that the representations and warranties contained in this Section 5.5(d): (x) do not apply to matters described in any of Section 5.4, the other provisions of this Section 5.5, and Sections 5.7, 5.8, 5.9, 5.10, 5.11 and 5.17 (which are addressed exclusively in those Sections) and (y) shall not be deemed breached if such breach relates to a matter which is covered by a representation or warranty of Parent and Merger Sub contained in this Article V (other than this Section 5.5(d)) that contains a “Parent’s Knowledge” qualification). (e) Since December 31, 2006 to the date of this Agreement, (i) neither Parent nor any Parent Subsidiary nor, to Parent’s Knowledge, any director, officer, auditor, accountant or representative of Parent or any of the Parent Subsidiaries has received any written complaint, allegation, assertion or claim that Parent or any of the Parent Subsidiaries has engaged in improper or illegal accounting or auditing practices or maintains improper or inadequate internal accounting controls relating to Parent and the Parent Subsidiaries, taken as a whole, (ii) no attorney representing Parent or any Parent Subsidiary has made a report to Parent’s chief legal officer, chief executive officer or Board of Directors (or any committee thereof) pursuant to the SEC’s Standards of Professional Conduct for Attorneys (17 CFR Part 205), and (iii) Parent has disclosed to its outside auditors any fraud, whether or not material, of which there is Parent’s Knowledge that involves management or other employees who have a significant role in Parent’s internal control over financial reporting. (g) As of the date hereof, the Company has not identified any material weaknesses in the design or operation of internal controls over financial reporting. To the Knowledge of the Company, there is no reason to believe that its auditors and its Chief Executive Officer and Chief Financial Officer will not be able to give the certifications and attestations required pursuant to the rules and regulations adopted pursuant to Section 404 of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act, when next due. (h) There are no outstanding loans made by the Company or any Company Subsidiary to any executive officer (as defined in Rule 3b-7 under the Exchange Act) or director of the Company.

Appears in 2 contracts

Sources: Merger Agreement (Carters Inc), Merger Agreement (Oshkosh B Gosh Inc)

SEC Documents; Financial Statements; Undisclosed Liabilities. (ai) ~~Parent has~~ Orion and its subsidiaries have filed or furnished all required registration statements, prospectuses, reports, schedules, ~~forms~~ forms, statements, certifications and ~~registration statements~~ other documents (including exhibits and all other information incorporated therein) with the SEC ~~required to be filed by it pursuant to the Securities Act and the Securities Act Rules, or the Exchange Act and the Exchange Act Rules, in each such case~~ since January 1, ~~2005~~ 2013 (~~collectively, and in each case including all annexes and schedules thereto and documents incorporated by reference therein,~~ the “~~Parent~~ Orion SEC Documents”). As of their respective ~~dates (or if subsequently amended or superseded by a filing prior to the date of this Agreement, on the date of such filing)~~dates, the ~~Parent~~ Orion SEC Documents complied ~~as to form~~ in all material respects with the requirements of the Securities Act or of 1933, as amended (the “Securities Act”), the Exchange Act and the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002, as amended (the “▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act”), as the case may be, and the rules and regulations of the SEC promulgated thereunder applicable to ~~such Parent~~ the Orion SEC Documents, and none of the ~~Parent~~ Orion SEC Documents ~~as of such dates~~ when filed and at their respective effective times, if applicable, contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading. ~~To Parent’s Knowledge, as~~ As of the date ~~hereof~~of this Agreement, there are no outstanding or unresolved comments received from the SEC with respect to any of the Orion SEC Documents, and, to the knowledge of Orion, none of the ~~Parent~~ Orion SEC Documents is the subject of ~~ongoing~~ any outstanding SEC ~~review~~comment or outstanding SEC investigation. (bii) ~~Parent is~~ The consolidated financial statements (including all related notes and schedules) of Orion and its subsidiaries included in ~~compliance with, and has complied,~~ the Orion SEC Documents (the “Orion Financial Statements”) were prepared in all material respects in accordance with generally accepted accounting principles (i“GAAP”) (except, in the ~~applicable provisions~~ case of unaudited statements, as permitted by the SEC) applied on a consistent basis during the periods involved (except as may be indicated in the notes thereto) and fairly present in all material respects the consolidated financial position of Orion and its consolidated subsidiaries as of the ~~▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002~~ dates thereof and the ~~related rules~~ consolidated results of their operations and ~~regulations promulgated thereunder~~cash flows for the periods then ended (subject, in the case of unaudited statements, to normal year-end audit adjustments which are not material and to any other adjustments described therein, including the notes thereto). (iii) Except (A) as reflected or reserved against in Orion’s unaudited balance sheet as of September 30, 2015 (or the notes thereto) as included in the Orion Filed SEC Documents, (B) for liabilities and obligations incurred in the ordinary course of business consistent with past practice since September 30, 2015 and (iiC) for liabilities and obligations incurred in connection with or contemplated by this Agreement, neither Orion nor any of its subsidiaries has any liabilities or obligations of any nature (whether accrued, absolute, contingent or otherwise) that would be required by GAAP to be reflected on a consolidated balance sheet of Orion and its subsidiaries (or in the ~~applicable listing and corporate governance rules and regulations~~ notes thereto) that, individually or in the aggregate, would reasonably be expected to have a Material Adverse Effect on Orion. (iv) Orion maintains a system of ~~NASDAQ. Parent has established and maintains disclosure controls and procedures and~~ “internal control over financial ~~reporting~~ reporting” (as ~~such terms are~~ defined in ~~paragraphs (e~~Rules 13a-15(f) and ~~(f), respectively,~~ 15d-15(f) of ~~Rule 13a-15 under~~ the Exchange Act) sufficient to provide reasonable assurance (i) that transactions are recorded as ~~required by Rule 13a-15 under~~ necessary to permit preparation of financial statements in conformity with GAAP, consistently applied, (ii) that transactions are executed only in accordance with the authorization of management and (iii) regarding prevention or timely detection of the unauthorized acquisition, use or disposition of Orion’s properties or assets. Since January 1, 2013, none of Orion, Orion’s independent accountants, the Board of Directors of Orion or its audit committee has received any oral or written notification of any (i) “significant deficiency” in the internal controls over financial reporting of Orion, (ii) “material weakness” in the internal controls over financial reporting of Orion or (iii) fraud, whether or not material, that involves management or other employees of Orion who have a significant role in the internal controls over financial reporting of Orion. (v) The “disclosure controls and procedures” (as defined in Rules 13a-15(e) and 15d-15(e) of the Exchange Act~~. Parent’s disclosure controls and procedures~~ ) utilized by Orion are reasonably designed to ensure that all ~~material~~ information (both financial and non-financial) required to be disclosed by ~~Parent~~ Orion in the reports that it files or ~~furnishes~~ submits under the Exchange Act is recorded, processed, summarized and reported within the time periods specified in the rules and forms of the ~~SEC,~~ SEC and that all such ~~material~~ information required to be disclosed is accumulated and communicated to the management of ~~Parent~~ Orion, as ~~appropriate~~ appropriate, to allow timely decisions regarding required disclosure and to enable the chief executive officer and chief financial officer of Orion to make the certifications required ~~pursuant to Sections 302 and 906 of~~ under the ~~▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act. The management of Parent has completed its assessment of the effectiveness of Parent’s internal control over financial reporting in compliance~~ Exchange Act with the requirements of Section 404 of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act for the year ended December 31, 2006, and such assessment concluded that such controls were effective to provide reasonable assurance regarding the reliability of Parent’s financial reporting and the preparation of Parent’s financial statements for external purposes in accordance with GAAP. Parent has disclosed, based on its assessment of the effectiveness of Parent’s internal control over financial reporting in compliance with the requirements of Section 404 of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act for the year ended December 31, 2006, to Parent’s independent registered accounting firm and the audit committee of the Board of Directors of Parent (A) any significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect Parent’s ability to record, process, summarize and report financial information and (B) any fraud, whether or not material, of which there is Parent’s Knowledge that involves management or other employees who have a significant role in Parent’s internal control over financial reporting for the year ended December 31, 2006. Parent any has made available to the Company a summary of any such disclosures made by management respect to such ~~accounting firm or audit committee for the year ended December 31, 2006~~reports. (cvi) ~~The consolidated financial statements~~ Neither Orion nor any of ~~Parent included~~ its subsidiaries is a party to, or has any commitment to become a party to, any joint venture, off-balance sheet partnership or any similar contract (including any contract or arrangement relating to any transaction or relationship between or among Orion and any of its subsidiaries, on the one hand, and any unconsolidated affiliate, including any structured finance, special purpose or limited purpose entity or person, on the other hand, or any “off-balance sheet arrangements” (as defined in ~~the Parent SEC Documents (the “Parent SEC Financial Statements”~~Item 303(a) ~~(i) have been prepared in accordance with GAAP (except as may be otherwise indicated therein or in the notes thereto and except, in the case~~ of ~~unaudited consolidated quarterly statements, as permitted by Form 10~~Regulation S-~~Q of~~ K under the Exchange Act)), ~~applied on a consistent basis during~~ where the ~~periods involved~~result, (ii) complied in all material respects with published rules and regulations of the SEC with respect thereto, and (iii) fairly present in all material respects the consolidated financial position of Parent and its consolidated Parent Subsidiaries as of the respective dates thereof and the consolidated statements of income, cash flows and changes in stockholders’ equity for the respective periods then ended (subject, in the case of unaudited quarterly statements, to normal year-end audit adjustments and the absence of footnotes). (d) As of March 31, 2007, neither Parent nor any of the Parent Subsidiaries had any liabilities purpose or ~~obligations that would have been required by GAAP to be reflected in the consolidated balance sheet of Parent and the Parent Subsidiaries as~~ intended effect of such ~~date~~contract is to avoid disclosure of any material transaction involving, ~~except (i) for such~~ or material liabilities ~~and obligations reflected~~of, reserved against or otherwise disclosed in the consolidated balance sheet of Parent and the Parent Subsidiaries as of such date (including the notes thereto) that is included in the Parent SEC Financial Statements and (ii) for such liabilities and obligations as would not be reasonably expected to have, individually or in the aggregate, a Parent Material Adverse Effect (it is understood and agreed that the representations and warranties contained in this Section 5.5(d): (x) do not apply to matters described in any of Section 5.4, the other provisions of this Section 5.5, and Sections 5.7, 5.8, 5.9, 5.10, 5.11 and 5.17 (which are addressed exclusively in those Sections) and (y) shall not be deemed breached if such breach relates to a matter which is covered by a representation or warranty of Parent and Merger Sub contained in this Article V (other than this Section 5.5(d)) that contains a “Parent’s Knowledge” qualification). (e) Since December 31, 2006 to the date of this Agreement, (i) neither Parent nor any Parent Subsidiary nor, to Parent’s Knowledge, any director, officer, auditor, accountant or representative of Parent Orion or any of ~~the Parent Subsidiaries has received any written complaint, allegation, assertion~~ its subsidiaries in Orion’s or claim that Parent or any of the Parent Subsidiaries has engaged in improper or illegal accounting or auditing practices or maintains improper or inadequate internal accounting controls relating to Parent and the Parent Subsidiaries, taken as a whole, (ii) no attorney representing Parent or any Parent Subsidiary has made a report to Parentsuch subsidiary’s chief legal officer, chief executive officer or Board of Directors (or any committee thereof) pursuant to the SEC’s Standards of Professional Conduct for Attorneys (17 CFR Part 205), and (iii) Parent has disclosed to its outside auditors any fraud, whether or not material, of which there is Parent’s Knowledge that involves management published financial statements or other ~~employees who have a significant role in Parent’s internal control over financial reporting~~Orion SEC Documents.

Appears in 2 contracts

Sources: Merger Agreement (Dupont E I De Nemours & Co), Merger Agreement (Dow Chemical Co /De/)

SEC Documents; Financial Statements; Undisclosed Liabilities. (a) ~~Parent~~ The Company has filed with or furnished to the SEC all reports, schedules, ~~forms~~ forms, statements, registration statements, prospectuses and ~~registration statements with the SEC~~ other documents (including exhibits and other information incorporated therein) required to be filed or furnished by ~~it pursuant to~~ the Company with the SEC under the Securities Act ~~and the Securities Act Rules,~~ or the Exchange Act ~~and~~ since December 31, 2010 (such documents, together with any documents filed or furnished during such period by the ~~Exchange Act Rules, in each such case since January 1, 2005 (collectively, and in each case including all annexes and schedules thereto and documents incorporated by reference therein~~Company to the SEC on a voluntary basis, the “~~Parent~~ Company SEC Documents”). No Company Subsidiary is subject to the periodic reporting requirements of the Exchange Act or is otherwise required to make filings with the SEC. (b) As of ~~their~~ its respective ~~dates (or~~ date, or, if ~~subsequently amended or superseded by a filing prior to~~ amended, as of the date of ~~this Agreement~~the last such amendment, on each of the ~~date of such filing), the Parent~~ Company SEC Documents complied ~~as to form~~ when filed or furnished (or, if applicable, when amended), or, if not yet filed or furnished, will comply, in all material respects with the requirements of the Securities Act or and the Exchange Act, as in each case to the ~~case may be, and the rules and regulations of the SEC promulgated thereunder~~ extent applicable to such ~~Parent~~ Company SEC Documents, and none of the ~~Parent~~ Company SEC Documents as when filed or furnished (or in the case of ~~such dates contained~~ a registration statement under the Securities Act, at the time it was declared effective) contained, or, if not yet filed or furnished, will contain, any untrue statement of a material fact or omitted (or will omit) to state a material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading~~. To Parent’s Knowledge~~. (c) The Company SEC Financial Statements have been derived, or in the case of Company SEC Documents filed after the date of this Agreement, will be derived, from the accounting books and records of the Company and the Company Subsidiaries and (i) as of their respective dates of filing with the SEC complied, or in the case of Company SEC Documents filed after the date of this Agreement, will comply, as to form in all material respects with applicable accounting requirements and the published rules and regulations of the SEC with respect thereto, (ii) were prepared, or in the case of Company SEC Documents filed after the date of this Agreement, will be prepared, in accordance with GAAP applied on a consistent basis during the periods involved (except as may be indicated in the notes thereto and except, in the case of the unaudited interim statements, as may be permitted by Form 10-Q and Regulation S-X of the SEC) and (iii) fairly presented, or in the case of Company SEC Documents filed after the date of this Agreement, will fairly present, in all material respects, the consolidated financial position of the Company, as of the respective dates thereof, and the consolidated results of their operations, and, where included, their consolidated stockholders’ equity and their consolidated cash flows for the respective periods indicated (subject, in the case of the unaudited statements, to normal year-end audit adjustments and the absence of notes). (d) As of the date ~~hereof~~of this Agreement, there are no outstanding or unresolved comments in comment letters received from the SEC staff with respect to any Company SEC Documents, and none of the ~~Parent~~ Company SEC Documents is filed with the SEC prior to the date of this Agreement (other than confidential treatment requests) is, to the Knowledge of the Company, the subject of ongoing SEC review. As of the date of this Agreement, there are no SEC inquiries or investigations or other governmental inquiries or investigations pending or, to the Knowledge of the Company, threatened, in each case regarding any accounting practices of the Company. (be) ~~Parent is in compliance with, and has complied, in all material respects with (i) the applicable provisions~~ The Company maintains a system of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002 and the related rules and regulations promulgated thereunder, and (ii) the applicable listing and corporate governance rules and regulations of NASDAQ. Parent has established and maintains disclosure controls and procedures and “internal control over financial ~~reporting~~ reporting” (as ~~such terms are~~ defined in ~~paragraphs (e~~Rules 13a-15(f) and ~~(f), respectively,~~ 15d-15(f) of ~~Rule 13a-15 under~~ the Exchange Act) sufficient to provide reasonable assurance (i) that transactions are recorded as ~~required by Rule 13a-15 under~~ necessary to permit preparation of financial statements in conformity with GAAP, consistently applied, (ii) that transactions are executed only in accordance with the authorization of management and (iii) regarding prevention or timely detection of the unauthorized acquisition, use or disposition of the Company’s properties or assets that could have a material effect on the Company’s financial statements. The “disclosure controls and procedures” (as defined in Rules 13a-15(e) and 15d-15(e) of the Exchange Act~~. Parent’s disclosure controls and procedures~~ ) utilized by the Company are reasonably designed to ensure that all ~~material~~ information (both financial and non-financial) required to be disclosed by ~~Parent~~ the Company in the reports that it files or ~~furnishes~~ submits under the Exchange Act is recorded, processed, summarized and reported within the time periods specified in the rules and forms of the ~~SEC,~~ SEC and that all such ~~material~~ information required to be disclosed is accumulated and communicated to the management of Parent ~~as appropriate~~ to allow timely decisions regarding required disclosure and to enable the chief executive officer and chief financial officer of the Company to make the certifications required ~~pursuant~~ under the Exchange Act with respect to ~~Sections 302 and 906 of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act~~such reports. The management of Parent has completed its assessment of the effectiveness of Parent’s internal control over financial reporting in compliance with the requirements of Section 404 of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act for the year ended Since December 31, ~~2006~~2013 (the “Audited Balance Sheet Date”), and such assessment concluded that such controls were effective to provide reasonable assurance regarding the reliability of Parent’s financial reporting and the preparation of Parent’s financial statements for external purposes in accordance with GAAP. Parent has disclosed, based on its assessment none of the ~~effectiveness of Parent’s internal control over financial reporting in compliance with~~ Company, the ~~requirements of Section 404 of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act for the year ended December 31, 2006, to Parent~~Company’s independent ~~registered accounting firm and~~ accountants, the Company Board or the audit committee of the Company Board has received any oral or written notification of ~~Directors of Parent~~ any (Ai) ~~any~~ “significant ~~deficiencies and material weaknesses~~ deficiency” in the ~~design or operation of~~ internal ~~control~~ controls over financial reporting ~~which are reasonably likely to adversely affect Parent’s ability to record~~of the Company, ~~process, summarize and report~~ (ii) “material weakness” in the internal controls over financial ~~information and~~ reporting of the Company or (Biii) ~~any~~ fraud, whether or not material, ~~of which there is Parent’s Knowledge~~ that involves management or other employees of the Company who have a significant role in ~~Parent’s~~ the internal ~~control~~ controls over financial reporting ~~for~~ of the ~~year ended December 31~~Company. For purposes of this Agreement, ~~2006~~the terms “significant deficiency” and “material weakness” will have the meanings assigned to them in Auditing Standard No. ~~Parent any has made available to~~ 5 of the Public Company ~~a summary~~ Accounting Oversight Board, as in effect on the date of ~~any such disclosures made by management to such accounting firm or audit committee for the year ended December 31, 2006~~this Agreement. (cf) The consolidated financial statements of Parent included in the Parent SEC Documents (the “Parent SEC Financial Statements”) (i) have been prepared in accordance with GAAP (except as may be otherwise indicated therein or in the notes thereto and except, in the case of unaudited consolidated quarterly statements, as permitted by Form 10-Q of the Exchange Act), applied on a consistent basis during the periods involved, (ii) complied in all material respects with published rules and regulations of the SEC with respect thereto, and (iii) fairly present in all material respects the consolidated financial position of Parent and its consolidated Parent Subsidiaries as of the respective dates thereof Company and the consolidated statements of income, cash flows and changes in stockholders’ equity for the respective periods then ended (subject, in the case of unaudited quarterly statements, to normal year-end audit adjustments and the absence of footnotes). (d) As of March 31, 2007, neither Parent nor any of the Parent Company Subsidiaries ~~had~~ do not have any liabilities or obligations ~~that would have been~~ of any nature (whether absolute, contingent, accrued or otherwise) required by GAAP to be reflected or reserved against in ~~the~~ a consolidated balance sheet ~~of Parent and the Parent Subsidiaries as of such date, except~~ (~~i) for such liabilities and obligations reflected, reserved against~~ or ~~otherwise disclosed in the consolidated balance sheet of Parent and the Parent Subsidiaries as of such date (including~~ the notes thereto) ~~that is included in~~ of the ~~Parent SEC Financial Statements and~~ Company, except for those (iii) ~~for such liabilities and obligations as would not be reasonably expected to have~~that, individually or in the aggregate, have not had and would not reasonably be expected to have a ~~Parent~~ Company Material Adverse ~~Effect~~ Effect, (~~it is understood and agreed that~~ ii) reflected or reserved against in the ~~representations and warranties contained~~ most recent consolidated balance sheet of the Company included in ~~this Section 5.5(d):~~ the Company SEC Financial Statements (xor the notes thereto) do not apply to matters described in any of Section 5.4, the other provisions of this Section 5.5, and Sections 5.7, 5.8, 5.9, 5.10, 5.11 and 5.17 (which are addressed exclusively in those Sections) and (y) shall not be deemed breached if such breach relates to a matter which is covered by a representation or warranty of Parent and Merger Sub contained in this Article V (other than this Section 5.5(d)) that contains a “Parent’s Knowledge” qualification). (e) Since December 31, 2006 filed prior to the date of this Agreement, (i) neither Parent nor any Parent Subsidiary nor, to Parent’s Knowledge, any director, officer, auditor, accountant or representative of Parent or any of the Parent Subsidiaries has received any written complaint, allegation, assertion or claim that Parent or any of the Parent Subsidiaries has engaged in improper or illegal accounting or auditing practices or maintains improper or inadequate internal accounting controls relating to Parent and the Parent Subsidiaries, taken as a whole, (ii) no attorney representing Parent or any Parent Subsidiary has made a report to Parent’s chief legal officer, chief executive officer or Board of Directors (or any committee thereof) pursuant to the SEC’s Standards of Professional Conduct for Attorneys (17 CFR Part 205), and (iii) ~~Parent has disclosed to its outside auditors any fraud, whether~~ incurred in the ordinary course of business since the date of such balance sheet or ~~not material, of which there is Parent’s Knowledge that involves management~~ (iv) incurred in connection with this Agreement or ~~other employees who have a significant role in Parent’s internal control over financial reporting~~the Pigments Business Disposition Agreement or the transactions contemplated hereby or thereby.

Appears in 2 contracts

Sources: Merger Agreement (Rockwood Holdings, Inc.), Merger Agreement (Albemarle Corp)

SEC Documents; Financial Statements; Undisclosed Liabilities. (a) ~~Parent~~ Seller has not filed ~~all reports, schedules, forms and registration statements~~ any documents with the SEC ~~required to be filed by it pursuant to the Securities Act and the Securities Act Rules~~since December 31, 2006 under Section 13(a) or 15(d) of the Exchange Act ~~and the Exchange Act Rules~~which, ~~in each such case since January 1, 2005 (collectively, and in each case including all annexes and schedules thereto and documents incorporated by reference therein, the “Parent SEC Documents”). As~~ as of their respective dates (or or, if ~~subsequently~~ amended or superseded by a filing prior to the date of this Agreement, then on the date of such filing), with respect to the ~~Parent SEC Documents complied as to form in all material respects with the requirements of the Securities Act or the Exchange Act~~Business only, ~~as the case may be, and the rules and regulations of the SEC promulgated thereunder applicable to such Parent SEC Documents, and none of the Parent SEC Documents as of such dates~~ contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary ~~in order~~ to make the statements therein, in light of the circumstances under which they were made, not misleading~~. To Parent’s Knowledge, as of the date hereof, none of the Parent SEC Documents is the subject of ongoing SEC review~~. (b) ~~Parent is~~ Section 4.04(b) of the Seller Disclosure Letter sets forth (i) an unaudited combined balance sheet with respect to the Business at December 30, 2007 (together with the notes thereto, the “Balance Sheet”) and the related unaudited combined statements of operations, business unit equity and cash flows for the 52-week period ended December 30, 2007 (together with the notes thereto and the Balance Sheet, the “2007 Business Financial Statements”) and (ii) audited combined balance sheets with respect to the Business at December 31, 2006 and December 25, 2005 (together with the notes thereto, the “Historical Balance Sheets”) and the related audited combined statements of operations, business unit equity and cash flows for the two-year period ended December 31, 2006 (together with the notes thereto and the Historical Balance Sheets, the “Historical Business Financial Statements”). The 2007 Business Financial Statements and the Historical Business Financial Statements (collectively, the “Business Financial Statements”) and, when delivered in ~~compliance with~~accordance with Section 6.13, the Audited Business Financial Statements, (A) were (and, in the case of the Audited Business Financial Statements, shall have been) prepared in accordance with the books of account and ~~has complied~~other financial records of Seller and its subsidiaries, (B) present fairly (and, in the case of the Audited Business Financial Statements, shall present fairly), in all material ~~respects with (i)~~ respects, the ~~applicable provisions~~ financial position of the ~~▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002~~ Business and the ~~related rules~~ results of its operations and ~~regulations promulgated thereunder~~changes in cash flows as of the dates thereof and for the periods covered thereby, ~~and~~ (iiC) ~~the applicable listing and corporate governance rules and regulations of NASDAQ. Parent has established and maintains disclosure controls and procedures and internal control over financial reporting~~ have been (~~as such terms are defined in paragraphs (e) and (f)~~and, respectively, of Rule 13a-15 under the Exchange Act) as required by Rule 13a-15 under the Exchange Act. Parent’s disclosure controls and procedures are reasonably designed to ensure that all material information required to be disclosed by Parent in the ~~reports that it files or furnishes under the Exchange Act is recorded, processed, summarized and reported within the time periods specified in the rules and forms~~ case of the ~~SEC~~Audited Business Financial Statements, and that all such material information is accumulated and communicated to the management of Parent as appropriate to allow timely decisions regarding required disclosure and to make the certifications required pursuant to Sections 302 and 906 of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act. The management of Parent has completed its assessment of the effectiveness of Parent’s internal control over financial reporting in compliance with the requirements of Section 404 of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act for the year ended December 31, 2006, and such assessment concluded that such controls were effective to provide reasonable assurance regarding the reliability of Parent’s financial reporting and the preparation of Parent’s financial statements for external purposes shall have been) prepared in accordance with GAAP~~. Parent has disclosed~~, ~~based on its assessment of the effectiveness of Parent~~in a manner and using accounting principles consistent with Seller’s internal control over financial reporting in compliance with the requirements of Section 404 of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act for the year ended December 31, 2006, to Parent’s independent registered accounting firm and the audit committee of the Board of Directors of Parent (A) any significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect Parent’s ability to record, process, summarize and report financial information and (B) any fraud, whether or not material, of which there is Parent’s Knowledge that involves management or other employees who have a significant role in Parent’s internal control over financial reporting for the year ended December 31, 2006. Parent any has made available to the Company a summary of any such disclosures made by management to such accounting firm or audit committee for the year ended December 31, 2006. (c) The consolidated historical financial statements ~~of Parent included in the Parent SEC Documents (the “Parent SEC Financial Statements”) (i) have been prepared in accordance with GAAP~~ (except as may be ~~otherwise~~ indicated ~~therein or~~ in the notes thereto and except, in the case of unaudited consolidated quarterly statements, as permitted by Form 10-Q of the Exchange Act), applied on a consistent basis during the periods involved, (ii) complied in all material respects with published rules and regulations of the SEC with respect thereto, and (iii) fairly present in all material respects the consolidated financial position of Parent and its consolidated Parent Subsidiaries as of the respective dates thereof and the consolidated statements of income, cash flows and changes in stockholders’ equity for the respective periods then ended (subject, in the case of ~~unaudited quarterly~~ interim financial statements, to normal year-end ~~audit adjustments~~ adjustments), and (D) meet (and, in the case of the Audited Business Financial Statements, shall meet) the requirements of Regulation S-X, promulgated pursuant to the Securities Act and the ~~absence of footnotes~~Exchange Act (“Regulations S-X”). (dc) As Neither Seller nor any other member of ~~March 31~~the Seller Group has any liability or obligation of any nature (whether known or unknown, accrued, absolute, contingent or otherwise) related to the Business, the Transferred Equity Interests or the Transferred Assets other than (i) liabilities or obligations incurred in the ordinary course of business in a manner consistent with past practice and not in violation of this Agreement since December 30, 2007, ~~neither Parent nor any of the Parent Subsidiaries had any~~ (ii) liabilities or obligations disclosed, reflected or reserved against on the Balance Sheet, (iii) Retained Liabilities, (iv) liabilities or obligations pursuant to Contracts that ~~would have been~~ are not required ~~by GAAP~~ to be ~~reflected~~ set forth in Section 1.02(a)(viii) of the ~~consolidated balance sheet of Parent and the Parent Subsidiaries as of such date~~Seller Disclosure Letter, ~~except~~ (iv) ~~for such liabilities and~~ Environmental Liabilities, (vi) liabilities, obligations ~~reflected, reserved against~~ or ~~otherwise disclosed in the consolidated balance sheet of Parent and the Parent Subsidiaries as of such date (including the notes thereto)~~ commitments pursuant to any Business Benefit Plan or Business Benefit Agreement that is ~~included in~~ assumed by Purchaser under this Agreement (other than (x) under or with respect to any Benefit Plan Assets or (y) pursuant to any Business Benefit Plan or Business Benefit Agreement of the ~~Parent SEC Financial Statements and~~ Transferred Entity) or (iivii) ~~for such~~ liabilities ~~and~~ or obligations ~~as would not be reasonably expected to have~~that, individually or in the aggregate, a Parent Material Adverse Effect (it is understood and agreed that the representations and warranties contained in this Section 5.5(d): (x) do not apply to matters described in any of Section 5.4, the other provisions of this Section 5.5, and Sections 5.7, 5.8, 5.9, 5.10, 5.11 and 5.17 (which are addressed exclusively in those Sections) and (y) shall not be deemed breached if such breach relates to a matter which is covered by a representation or warranty of Parent and Merger Sub contained in this Article V (other than this Section 5.5(d)) that contains a “Parent’s Knowledge” qualification). (e) Since December 31, 2006 to the date of this Agreement, (i) neither Parent nor any Parent Subsidiary nor, to Parent’s Knowledge, any director, officer, auditor, accountant or representative of Parent or any of the Parent Subsidiaries has received any written complaint, allegation, assertion or claim that Parent or any of the Parent Subsidiaries has engaged in improper or illegal accounting or auditing practices or maintains improper or inadequate internal accounting controls relating to Parent and the Parent Subsidiaries, taken as a whole, (ii) no attorney representing Parent or any Parent Subsidiary has made a report to Parent’s chief legal officer, chief executive officer or Board of Directors (or any committee thereof) pursuant to the SEC’s Standards of Professional Conduct for Attorneys (17 CFR Part 205), and (iii) Parent has disclosed to its outside auditors any fraud, whether or not material~~, of which there is Parent’s Knowledge that involves management or other employees who have a significant role in Parent’s internal control over financial reporting~~.

Appears in 2 contracts

Sources: Purchase Agreement (International Paper Co /New/), Purchase Agreement (Weyerhaeuser Co)

SEC Documents; Financial Statements; Undisclosed Liabilities. (a) ~~Parent~~ The Company has filed or furnished all reports, schedules, ~~forms~~ forms, statements, registration statements, prospectuses and ~~registration statements with the SEC~~ other documents (including exhibits and other information incorporated therein) required to be filed or furnished by ~~it pursuant to~~ the Company with the SEC under the Securities Act ~~and the Securities Act Rules,~~ or the Exchange Act ~~and the Exchange Act Rules, in each such case~~ since January 1, ~~2005~~ 2013 (~~collectively~~such documents, ~~and in each case including all annexes and schedules thereto and~~ together with any documents ~~incorporated~~ filed or furnished during such period by ~~reference therein~~the Company to the SEC on a voluntary basis, the “~~Parent~~ Company SEC Documents”). No Company Subsidiary is, or has at any time since January 1, 2013 been, subject to the periodic reporting requirements of the Exchange Act or is or has been otherwise required to file any form, report, statement, schedule, certificate or other document with the SEC, any foreign Governmental Entity that performs a similar function to that of the SEC or any securities exchange or quotation system. (b) As of ~~their~~ its respective ~~dates (or~~ date, or, if ~~subsequently~~ amended ~~or superseded by a filing~~ prior to the date hereof, as of ~~this Agreement, on~~ the date of the last such ~~filing)~~amendment, each of the ~~Parent~~ Company SEC Documents complied ~~as to form~~ when filed or furnished (or, if applicable, when amended) in all material respects with the requirements of the Securities ~~Act or~~ Act, the Exchange ~~Act, as the case may be,~~ Act and the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002 and the related rules and regulations ~~of the SEC~~ promulgated thereunder or under the Exchange Act (the “▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act”), in each case to the extent applicable to such ~~Parent~~ Company SEC Documents, and none of the ~~Parent~~ Company SEC Documents as when filed or furnished (or in the case of ~~such dates~~ a registration statement under the Securities Act, at the time it was declared effective) contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not ~~misleading. To Parent’s Knowledge~~misleading (and no Company SEC Document that is a registration statement, as amended or supplemented, if applicable, filed pursuant to the Securities Act, as of the date ~~hereof~~such registration statement or amendment became effective, ~~none~~ contained any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary to make the ~~Parent SEC Documents is the subject of ongoing SEC review~~statements therein not misleading). (bc) ~~Parent~~ The consolidated financial statements of the Company included in the Company SEC Documents (including, in each case, any notes or schedules thereto) and all related compilations, reviews and other reports issued by the Company’s accountants with respect thereto (the “Company SEC Financial Statements”), have been derived from the accounting books and records of the Company and the Company Subsidiaries and (i) as of their respective dates of filing with the SEC complied as to form in all material respects with applicable accounting requirements and the published rules and regulations of the SEC with respect thereto, (ii) were prepared in accordance with GAAP applied on a consistent basis during the periods involved (except as may be indicated in the notes thereto and except, in the case of the unaudited interim statements, as may be permitted by Form 10-Q and Regulation S-X of the SEC) and (iii) fairly present, in all material respects, the consolidated financial position of the Company and the Company Subsidiaries, as at the respective dates thereof, and the consolidated results of their operations, and, where included, their consolidated stockholders’ equity and their consolidated cash flows for the respective periods indicated (subject, in the case of the unaudited statements, to normal year-end audit adjustments (which are not material in significance or amount) and the absence of notes). No financial statements of any Person other than the Company and the Company Subsidiaries are required by GAAP to be included in the consolidated financial statements of the Company. Except as required by GAAP and disclosed in the Company SEC Documents, between January 1, 2013 and the date of this Agreement, the Company has not made or adopted any material change in its accounting methods, practices or policies. (d) The Company is in compliance ~~with, and has complied,~~ in all material respects with (i) the applicable provisions of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act ~~of 2002 and the related rules and regulations promulgated thereunder,~~ and (ii) the applicable listing and corporate governance rules and regulations of ~~NASDAQ~~the NYSE. (e) There are no outstanding or unresolved comments in comment letters received from the SEC staff with respect to any Company SEC Documents and none of the Company SEC Documents (other than confidential treatment requests) is, to the Knowledge of the Company, the subject of ongoing SEC review. ~~Parent~~ There are no internal investigations, any SEC inquiries or investigations or other governmental inquiries or investigations pending or, to the Knowledge of the Company, threatened, in each case regarding any accounting practices of the Company. (f) Since January 1, 2013, the Company has ~~established~~ designed and ~~maintains~~ maintained disclosure controls and procedures and internal control over financial reporting (as such terms are defined in ~~paragraphs (e) and (f), respectively, of~~ Rule 13a-15 and Rule 15d-15 under the Exchange Act) as required by ~~Rule~~ Rules 13a-15 and 15d-15 under the Exchange Act. ~~Parent~~The Company’s disclosure controls and procedures are ~~reasonably~~ designed to ensure that all ~~material~~ information (both financial and non-financial) required to be disclosed by ~~Parent~~ the Company in the reports that it files or furnishes under the Exchange Act is recorded, processed, summarized and reported within the time periods specified in the rules and forms of the SEC, and that all such ~~material~~ information is accumulated and communicated to the Company’s management ~~of Parent~~ as appropriate to allow timely decisions regarding required disclosure and to make the certifications required pursuant to Sections 302 and 906 of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act. The Company’s management ~~of Parent~~ has completed ~~its~~ an assessment of the effectiveness of ~~Parent~~the Company’s disclosure controls and procedures and, to the extent required by applicable Law, presented in any applicable Company SEC Document that is a report on Form 10-K or Form 10-Q, or any amendment thereto, its conclusions about the effectiveness of the disclosure controls and procedures as of the end of the period covered by such report or amendment based on such evaluation. Based on Company management’s most recently completed evaluation of the Company’s internal control over financial ~~reporting in compliance with~~ reporting, (i) the requirements of Section 404 of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act for the year ended December 31, 2006, and such assessment concluded that such controls were effective to provide reasonable assurance regarding the reliability of Parent’s financial reporting and the preparation of Parent’s financial statements for external purposes in accordance with GAAP. Parent has disclosed, based on its assessment of the effectiveness of Parent’s internal control over financial reporting in compliance with the requirements of Section 404 of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act for the year ended December 31, 2006, to Parent’s independent registered accounting firm and the audit committee of the Board of Directors of Parent (A) any Company had no significant deficiencies ~~and~~ or material weaknesses in the design or operation of its internal control over financial reporting ~~which are~~ that would reasonably ~~likely~~ be expected to adversely affect ~~Parent~~the Company’s ability to record, process, summarize and report financial information and (Bii) the Company does not have Knowledge of any fraud, whether or not material, ~~of which there is Parent’s Knowledge~~ that involves management or other employees who have a significant role in ~~Parent~~the Company’s internal control over financial ~~reporting for~~ reporting. Since January 1, 2013, to the ~~year ended December 31~~Knowledge of the Company, ~~2006. Parent any~~ no executive officer or director of the Company has ~~made available~~ received or otherwise had or obtained knowledge of, and to the Knowledge of the Company, no auditor, accountant, or representative of the Company has provided written notice to the Company or any executive officer or director of, any substantive complaint or allegation that the Company or any Company Subsidiary has engaged in improper accounting practices. Since January 1, 2013, to the Knowledge of the Company, no attorney representing the Company or any Company Subsidiary has reported to the Company Board or any committee thereof or to any current director or executive officer of the Company evidence of a ~~summary~~ material violation of United States or other securities Laws or breach of fiduciary duty by the Company or any ~~such disclosures made by management to such accounting firm~~ of its executive officers or ~~audit committee for the year ended December 31, 2006~~directors. (cg) The consolidated financial statements of Parent included in the Parent SEC Documents (the “Parent SEC Financial Statements”) (i) have been prepared in accordance with GAAP (except as may be otherwise indicated therein or in the notes thereto and except, in the case of unaudited consolidated quarterly statements, as permitted by Form 10-Q of the Exchange Act), applied on a consistent basis during the periods involved, (ii) complied in all material respects with published rules and regulations of the SEC with respect thereto, and (iii) fairly present in all material respects the consolidated financial position of Parent and its consolidated Parent Subsidiaries as of the respective dates thereof Company and the consolidated statements of income, cash flows and changes in stockholders’ equity for the respective periods then ended (subject, in the case of unaudited quarterly statements, to normal year-end audit adjustments and the absence of footnotes). (d) As of March 31, 2007, neither Parent nor any of the Parent Company Subsidiaries ~~had~~ do not have any liabilities or obligations ~~that would have been required by GAAP to be reflected in the consolidated balance sheet~~ of ~~Parent~~ any nature (whether absolute or contingent, asserted or unasserted, known or unknown, primary or secondary, direct or indirect, and ~~the Parent Subsidiaries as of such date~~whether or not accrued), except (i) for such liabilities and obligations reflected, reserved against or otherwise disclosed in the consolidated balance sheet of Parent and the Parent Subsidiaries as of such date (including the notes thereto) that is included in the Parent SEC Financial Statements and (ii) for such liabilities and obligations as would not be reasonably expected to havethose that, individually or in the aggregate, have not had and would not reasonably be expected to have a ~~Parent~~ Company Material Adverse ~~Effect~~ Effect, (~~it is understood~~ ii) as reflected or reserved against in the most recent audited balance sheet included in the Company SEC Financial Statements or the notes thereto, (iii) for liabilities and ~~agreed that~~ obligations incurred in the ~~representations and warranties contained in this Section 5.5(d): (x) do not apply to matters described in any~~ ordinary course of Section 5.4, the other provisions of this Section 5.5, and Sections 5.7, 5.8, 5.9, 5.10, 5.11 and 5.17 (which are addressed exclusively in those Sections) and (y) shall not be deemed breached if such breach relates to a matter which is covered by a representation or warranty of Parent and Merger Sub contained in this Article V (other than this Section 5.5(d)) that contains a “Parent’s Knowledge” qualification). (e) Since December 31, 2006 to business since the date of the most recent audited balance sheet included in the Company SEC Financial Statements and (iv) for liabilities and obligations arising out of or in connection with this ~~Agreement, (i) neither Parent~~ Agreement or the Mergers. Neither the Company nor any ~~Parent Subsidiary nor~~of the Company Subsidiaries is a party to, or has any commitment to ~~Parent’s Knowledge~~become a party to, any ~~director~~joint venture, ~~officer~~off-balance sheet partnership or any similar Contract or arrangement (including any Contract or arrangement relating to any transaction or relationship between or among the Company and any of the Company Subsidiaries, ~~auditor~~on the one hand, ~~accountant~~ and any unconsolidated Affiliate, including any structured finance, special purpose or ~~representative~~ limited purpose entity or Person, on the other hand, or any material “off-balance sheet arrangement” (as defined in Item 303(a) of ~~Parent~~ Regulation S-K of the Exchange Act)), where the result, purpose or intended effect of such Contract or arrangement is to avoid disclosure of any material transaction involving, or material liabilities of, the Company or any of the ~~Parent~~ Company Subsidiaries ~~has received any written complaint, allegation, assertion or claim that Parent or any of~~ in the Parent Subsidiaries has engaged in improper or illegal accounting or auditing practices or maintains improper or inadequate internal accounting controls relating to Parent and the Parent Subsidiaries, taken as a whole, (ii) no attorney representing Parent or any Parent Subsidiary has made a report to Parent’s chief legal officer, chief executive officer or Board of Directors (or any committee thereof) pursuant to the SEC’s Standards of Professional Conduct for Attorneys (17 CFR Part 205), and (iii) Parent has disclosed to its outside auditors any fraud, whether or not material, of which there is Parent’s Knowledge that involves management Company SEC Financial Statements or other ~~employees who have a significant role in Parent’s internal control over financial reporting~~Company SEC Documents.

Appears in 2 contracts

Sources: Agreement and Plan of Merger (Pinnacle Foods Inc.), Agreement and Plan of Merger (Hillshire Brands Co)

SEC Documents; Financial Statements; Undisclosed Liabilities. (ai) ~~Parent has~~ RockTenn and its subsidiaries have filed or furnished all required registration statements, prospectuses, reports, schedules, ~~forms~~ forms, statements, certifications and ~~registration statements~~ other documents (including exhibits and all other information incorporated therein) with the SEC ~~required to be filed by it pursuant to the Securities Act and the Securities Act Rules, or the Exchange Act and the Exchange Act Rules, in each such case~~ since January 1, ~~2005~~ 2012 (~~collectively, and in each case including all annexes and schedules thereto and documents incorporated by reference therein,~~ the “~~Parent~~ RockTenn SEC Documents”). As of their respective ~~dates (or if subsequently amended or superseded by a filing prior to the date of this Agreement, on the date of such filing)~~dates, the ~~Parent~~ RockTenn SEC Documents complied ~~as to form~~ in all material respects with the requirements of the Securities ~~Act or~~ Act, the Exchange Act and the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act, as the case may be, and the rules and regulations of the SEC promulgated thereunder applicable to ~~such Parent~~ the RockTenn SEC Documents, and none of the ~~Parent~~ RockTenn SEC Documents ~~as of such dates~~ when filed and at their respective effective times, if applicable, contained any untrue statement of a material fact or omitted 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 were made, not misleading. ~~To Parent’s Knowledge, as~~ As of the date hereof, there are no outstanding or unresolved comments received from the SEC with respect to any of the RockTenn SEC Documents, and, to the knowledge of RockTenn, none of the ~~Parent~~ RockTenn SEC Documents is the subject of ~~ongoing~~ any outstanding SEC ~~review~~comment or outstanding SEC investigation. (bii) ~~Parent is~~ The consolidated financial statements (including all related notes and schedules) of RockTenn and its subsidiaries included in ~~compliance with, and has complied,~~ the RockTenn SEC Documents (the “RockTenn Financial Statements”) were prepared in all material respects in accordance with GAAP (iexcept, in the case of unaudited statements, as permitted by the SEC) applied on a consistent basis during the ~~applicable provisions~~ periods involved (except as may be indicated in the notes thereto) and fairly present in all material respects the consolidated financial position of RockTenn and its consolidated subsidiaries as of the ~~▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002~~ dates thereof and the ~~related rules~~ consolidated results of their operations and ~~regulations promulgated thereunder~~cash flows for the periods then ended (subject, in the case of unaudited statements, to normal year-end audit adjustments which are not material and to any other adjustments described therein, including the notes thereto). (iii) Except (A) as reflected or reserved against in RockTenn’s consolidated audited balance sheet as of September 30, 2014 (or the notes thereto) as included in the RockTenn Filed SEC Documents, (B) for liabilities and obligations incurred in the ordinary course of business consistent with past practice since September 30, 2014 and (iiC) for liabilities and obligations incurred in connection with or contemplated by this Agreement, neither RockTenn nor any of its subsidiaries has any liabilities or obligations of any nature (whether accrued, absolute, contingent or otherwise) that would be required by GAAP to be reflected on a consolidated balance sheet of RockTenn and its subsidiaries (or in the ~~applicable listing and corporate governance rules and regulations~~ notes thereto) that, individually or in the aggregate, would reasonably be expected to have a Material Adverse Effect on RockTenn. (iv) RockTenn maintains a system of ~~NASDAQ. Parent has established and maintains disclosure controls and procedures and~~ “internal control over financial ~~reporting~~ reporting” (as ~~such terms are~~ defined in ~~paragraphs (e~~Rules 13a-15(f) and ~~(f), respectively,~~ 15d-15(f) of ~~Rule 13a-15 under~~ the Exchange Act) sufficient to provide reasonable assurance (i) that transactions are recorded as ~~required by Rule 13a-15 under~~ necessary to permit preparation of financial statements in conformity with GAAP, consistently applied, (ii) that transactions are executed only in accordance with the authorization of management and (iii) regarding prevention or timely detection of the unauthorized acquisition, use or disposition of RockTenn’s properties or assets. Since January 1, 2012, none of RockTenn, RockTenn’s independent accountants, the Board of Directors of RockTenn or its audit committee has received any oral or written notification of any (i) “significant deficiency” in the internal controls over financial reporting of RockTenn, (ii) “material weakness” in the internal controls over financial reporting of RockTenn or (iii) fraud, whether or not material, that involves management or other employees of RockTenn who have a significant role in the internal controls over financial reporting of RockTenn. (v) The “disclosure controls and procedures” (as defined in Rules 13a-15(e) and 15d-15(e) of the Exchange Act~~. Parent’s disclosure controls and procedures~~ ) utilized by RockTenn are reasonably designed to ensure that all ~~material~~ information (both financial and non-financial) required to be disclosed by ~~Parent~~ RockTenn in the reports that it files or ~~furnishes~~ submits under the Exchange Act is recorded, processed, summarized and reported within the time periods specified in the rules and forms of the ~~SEC,~~ SEC and that all such ~~material~~ information required to be disclosed is accumulated and communicated to the management of ~~Parent~~ RockTenn, as ~~appropriate~~ appropriate, to allow timely decisions regarding required disclosure and to enable the chief executive officer and chief financial officer of RockTenn to make the certifications required ~~pursuant to Sections 302 and 906 of~~ under the ~~▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act. The management of Parent has completed its assessment of the effectiveness of Parent’s internal control over financial reporting in compliance~~ Exchange Act with the requirements of Section 404 of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act for the year ended December 31, 2006, and such assessment concluded that such controls were effective to provide reasonable assurance regarding the reliability of Parent’s financial reporting and the preparation of Parent’s financial statements for external purposes in accordance with GAAP. Parent has disclosed, based on its assessment of the effectiveness of Parent’s internal control over financial reporting in compliance with the requirements of Section 404 of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act for the year ended December 31, 2006, to Parent’s independent registered accounting firm and the audit committee of the Board of Directors of Parent (A) any significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect Parent’s ability to record, process, summarize and report financial information and (B) any fraud, whether or not material, of which there is Parent’s Knowledge that involves management or other employees who have a significant role in Parent’s internal control over financial reporting for the year ended December 31, 2006. Parent any has made available to the Company a summary of any such disclosures made by management respect to such ~~accounting firm or audit committee for the year ended December 31, 2006~~reports. (cvi) ~~The consolidated financial statements~~ Neither RockTenn nor any of ~~Parent included~~ its subsidiaries is a party to, or has any commitment to become a party to, any joint venture, off-balance sheet partnership or any similar contract (including any contract or arrangement relating to any transaction or relationship between or among RockTenn and any of its subsidiaries, on the one hand, and any unconsolidated affiliate, including any structured finance, special purpose or limited purpose entity or person, on the other hand, or any “off-balance sheet arrangements” (as defined in ~~the Parent SEC Documents (the “Parent SEC Financial Statements”~~Item 303(a) ~~(i) have been prepared in accordance with GAAP (except as may be otherwise indicated therein or in the notes thereto and except, in the case~~ of ~~unaudited consolidated quarterly statements, as permitted by Form 10~~Regulation S-~~Q of~~ K under the Exchange Act)), ~~applied on a consistent basis during~~ where the ~~periods involved~~result, (ii) complied in all material respects with published rules and regulations of the SEC with respect thereto, and (iii) fairly present in all material respects the consolidated financial position of Parent and its consolidated Parent Subsidiaries as of the respective dates thereof and the consolidated statements of income, cash flows and changes in stockholders’ equity for the respective periods then ended (subject, in the case of unaudited quarterly statements, to normal year-end audit adjustments and the absence of footnotes). (d) As of March 31, 2007, neither Parent nor any of the Parent Subsidiaries had any liabilities purpose or ~~obligations that would have been required by GAAP to be reflected in the consolidated balance sheet of Parent and the Parent Subsidiaries as~~ intended effect of such ~~date~~contract is to avoid disclosure of any material transaction involving, ~~except (i) for such~~ or material liabilities ~~and obligations reflected~~of, reserved against or otherwise disclosed in the consolidated balance sheet of Parent and the Parent Subsidiaries as of such date (including the notes thereto) that is included in the Parent SEC Financial Statements and (ii) for such liabilities and obligations as would not be reasonably expected to have, individually or in the aggregate, a Parent Material Adverse Effect (it is understood and agreed that the representations and warranties contained in this Section 5.5(d): (x) do not apply to matters described in any of Section 5.4, the other provisions of this Section 5.5, and Sections 5.7, 5.8, 5.9, 5.10, 5.11 and 5.17 (which are addressed exclusively in those Sections) and (y) shall not be deemed breached if such breach relates to a matter which is covered by a representation or warranty of Parent and Merger Sub contained in this Article V (other than this Section 5.5(d)) that contains a “Parent’s Knowledge” qualification). (e) Since December 31, 2006 to the date of this Agreement, (i) neither Parent nor any Parent Subsidiary nor, to Parent’s Knowledge, any director, officer, auditor, accountant or representative of Parent RockTenn or any of ~~the Parent Subsidiaries has received any written complaint, allegation, assertion~~ its subsidiaries in RockTenn’s or claim that Parent or any of the Parent Subsidiaries has engaged in improper or illegal accounting or auditing practices or maintains improper or inadequate internal accounting controls relating to Parent and the Parent Subsidiaries, taken as a whole, (ii) no attorney representing Parent or any Parent Subsidiary has made a report to Parentsuch subsidiary’s chief legal officer, chief executive officer or Board of Directors (or any committee thereof) pursuant to the SEC’s Standards of Professional Conduct for Attorneys (17 CFR Part 205), and (iii) Parent has disclosed to its outside auditors any fraud, whether or not material, of which there is Parent’s Knowledge that involves management published financial statements or other ~~employees who have a significant role in Parent’s internal control over financial reporting~~RockTenn SEC Documents.

Appears in 2 contracts

Sources: Business Combination Agreement (MEADWESTVACO Corp), Business Combination Agreement (Rock-Tenn CO)

SEC Documents; Financial Statements; Undisclosed Liabilities. (a) ~~Parent~~ The Company has filed or furnished all reports, schedules, ~~forms~~ forms, statements, registration statements, prospectuses and ~~registration statements with the SEC~~ other documents required to be filed or furnished by ~~it pursuant to~~ the Company with the SEC under the Securities Act ~~and the Securities Act Rules,~~ or the Exchange Act ~~and the Exchange Act Rules, in each such case~~ since ~~January~~ May 1, ~~2005~~ 2022 (~~collectively, and in each case including all annexes and schedules thereto and documents incorporated by reference therein,~~ the “~~Parent~~ Company SEC Documents”). None of the Subsidiaries of the Company is or has at any time since May 1, 2022, been subject to the reporting requirements of Section 13(a) or Section 15(d) of the Exchange Act. (b) As of ~~their~~ its respective ~~dates~~ filing date (or or, if ~~subsequently~~ amended or superseded ~~by a filing~~ prior to the date of this Agreement, on the date of such filing), ~~the Parent~~ each Company SEC ~~Documents~~ Document complied as to form in all material respects with the requirements of the Exchange Act, the Securities Act or and the ~~Exchange~~ ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act, as the case may be, ~~and~~ the rules and regulations of the SEC promulgated ~~thereunder~~ thereunder, and the requirements of NASDAQ applicable to such ~~Parent~~ Company SEC ~~Documents~~Document, and ~~none of the Parent SEC Documents as of such dates contained~~ did not contain any untrue statement of a material fact or ~~omitted~~ omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, and each Company SEC Document filed or furnished subsequent to the date of this Agreement will comply, in all material respects, with the applicable requirements of the Exchange Act, the Securities Act and the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act, as the case may be, the applicable rules and regulations of the SEC promulgated thereunder, and the applicable requirements of NASDAQ. ~~To Parent’s Knowledge~~As of the date of this Agreement, there are no outstanding or unresolved comments received from the SEC with respect to any Company SEC Documents that would be required to be disclosed under Item 1B of Form 10-K under the Exchange Act. (c) The consolidated financial statements of the Company included in the Company SEC Documents (including, in each case, any notes or schedules thereto) (the “Company SEC Financial Statements”) (i) fairly present, in all material respects, the financial condition and the results of operations, cash flows and changes in shareholders’ equity deficit of the Company and its Subsidiaries (on a consolidated basis) as of the ~~date hereof~~respective dates of and for the periods referred to in the Company SEC Financial Statements, (ii) were prepared in accordance with GAAP as applied by the Company (except as may be indicated in the notes thereto or, in the case of unaudited statements, as permitted by Form 10-Q of the SEC), subject, in the case of interim Company SEC Financial Statements, to normal year-end adjustments and the absence of notes and other presentation items as permitted by the applicable rules and regulations of the SEC (none of ~~the Parent SEC Documents is the subject of ongoing SEC review.~~ which are material in amount or nature) and (biii) ~~Parent is in compliance with, and has complied,~~ comply as to form in all material respects with the Securities Act, the Exchange Act, the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act and published rules and regulations of the SEC with respect thereto. (d) The Company has timely filed all certifications and statements required by (i) Rule 13a-14 or Rule 15d-14 under the ~~applicable provisions~~ Exchange Act; or (ii) 18 U.S.C. Section 1350 (Section 906 of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ ~~Act of 2002 and the related rules and regulations promulgated thereunder, and (ii~~Act) ~~the~~ with respect to all applicable ~~listing and corporate governance rules and regulations of NASDAQ~~Company SEC Documents. ~~Parent has established and~~ The Company maintains disclosure controls and procedures ~~and internal control over financial reporting (as such terms are defined in paragraphs (e) and (f), respectively, of~~ required by Rule 13a-15 or Rule 15d-15 under the Exchange Act~~) as required by Rule 13a-15 under~~ , which controls and procedures are designed to ensure that all material information concerning the ~~Exchange Act~~Company and its Subsidiaries is made known on a timely basis to the individuals responsible for the preparation of the Company SEC Documents. ~~Parent~~The Company’s disclosure controls and procedures are reasonably designed to ensure that all material information required to be disclosed by ~~Parent~~ the Company in the reports that it files or furnishes under the Exchange Act is recorded, processed, summarized and reported within the time periods specified in the rules and forms of the SEC, and that all such material information is accumulated and communicated to the Company’s management ~~of Parent~~ as appropriate to allow timely decisions regarding required disclosure and to make the certifications required pursuant to Sections 302 and 906 of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act. The ~~management~~ Company has established and maintains a system of ~~Parent has completed its assessment of the effectiveness of Parent’s~~ internal ~~control over financial reporting in compliance~~ accounting controls that comply with the requirements of ~~Section 404 of~~ the ~~▇▇▇▇▇▇▇▇-▇▇▇▇▇~~ Exchange Act ~~for~~ and that have been designed by, or under the ~~year ended December 31~~supervision of, ~~2006~~their respective principal executive and principal financial officers, ~~and such assessment concluded that such controls were effective~~ to provide reasonable assurance regarding the reliability of ~~Parent’s~~ financial reporting and the preparation of ~~Parent’s~~ financial statements ~~for external purposes~~ in accordance with GAAP~~. Parent has disclosed~~, based on its assessment of the effectiveness of Parent’s internal control over financial reporting in compliance with the requirements of Section 404 of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act for the year ended December 31, 2006, to Parent’s independent registered accounting firm including policies and ~~the audit committee of the Board of Directors of Parent~~ procedures that (A) require the maintenance of records that in reasonable detail accurately and fairly reflect the transactions and dispositions of the assets of the Company, (B) provide reasonable assurance that transactions are recorded as necessary to permit preparation of financial statements in accordance with GAAP and that receipts and expenditures of the Company are being made only in accordance with appropriate authorizations of the Company’s management and the Company Board and (C) provide reasonable assurance regarding prevention or timely detection of unauthorized acquisition, use or disposition of the assets of the Company. From the date of the filing of the Company’s Annual Report on Form 10-K for the fiscal year ended April 27, 2024 to the date of this Agreement, neither the Company’s auditors, to the Knowledge of the Company, nor the Company has been advised in writing of (1) any “significant ~~deficiencies and~~ deficiencies” or “material ~~weaknesses~~ weaknesses” (each as defined in Rule 12b-2 of the ~~design or operation~~ Exchange Act) identified in management’s assessment of internal control over financial reporting ~~which are reasonably likely to adversely affect Parent’s ability to record~~as of and for the year ended April 27, ~~process, summarize and report financial information and~~ 2024 (Bnor has any such deficiency or weakness been identified as of the date hereof) or (2) any fraud, whether or not material, ~~of which there is Parent’s Knowledge~~ that involves management or other employees who have a significant role in ~~Parent~~the Company’s internal control over financial ~~reporting for the year ended December 31~~reporting, ~~2006. Parent any has made available~~ and, in each case, to the Company’s Knowledge, neither the Company ~~a summary~~ nor any of ~~any~~ its Representatives has failed to disclose such ~~disclosures made by management~~ information to ~~such accounting firm~~ the Company’s auditors or ~~audit committee for~~ the ~~year ended December 31~~Company Board. Since April 27, ~~2006. (c) The consolidated financial statements of Parent included~~ 2024, the Company has been in the Parent SEC Documents (the “Parent SEC Financial Statements”) (i) have been prepared in accordance with GAAP (except as may be otherwise indicated therein or in the notes thereto and except, in the case of unaudited consolidated quarterly statements, as permitted by Form 10-Q of the Exchange Act), applied on a consistent basis during the periods involved, (ii) complied compliance in all material respects with ~~published~~ the applicable listing and corporate governance rules and regulations of the SEC with respect thereto, and (iii) fairly present in all material respects the consolidated financial position of Parent and its consolidated Parent Subsidiaries as of the respective dates thereof and the consolidated statements of income, cash flows and changes in stockholders’ equity for the respective periods then ended (subject, in the case of unaudited quarterly statements, to normal year-end audit adjustments and the absence of footnotes)NASDAQ. (de) ~~As of March 31, 2007, neither Parent nor any of the Parent~~ The Company and its Subsidiaries ~~had~~ do not have any liabilities or obligations ~~that would have been~~ of any nature (whether absolute or contingent, asserted or unasserted, known or unknown, primary or secondary, direct or indirect, and whether or not accrued), required by GAAP to be reflected ~~in the~~ or reserved on a consolidated balance sheet of ~~Parent and~~ the ~~Parent Subsidiaries as of such date,~~ Company (or the notes thereto) except (i) ~~for such liabilities and obligations reflected~~as disclosed, reflected or reserved against ~~or otherwise disclosed~~ in the ~~consolidated~~ most recent balance sheet ~~of Parent and~~ included in the ~~Parent Subsidiaries as of such date (including~~ Company SEC Financial Statements or the notes thereto~~) that is included in the Parent SEC Financial Statements and~~ , (ii) for ~~such~~ liabilities and obligations as incurred in the ordinary course of business since the date of the most recent balance sheet included in the Company SEC Financial Statements, none of which individually or in the aggregate has had or would ~~not~~ reasonably be ~~reasonably~~ expected to ~~have~~have a Company Material Adverse Effect, (iii) for liabilities and obligations arising out of or in connection with this Agreement, the Merger or the Transactions, to the extent permitted or contemplated by this Agreement, and (iv) for other liabilities and obligations that, individually or in the aggregate, have not had and would not reasonably be expected to have a ~~Parent~~ Company Material Adverse Effect (it is understood and agreed that the representations and warranties contained in this Section 5.5(d): (x) do not apply to matters described in any of Section 5.4, the other provisions of this Section 5.5, and Sections 5.7, 5.8, 5.9, 5.10, 5.11 and 5.17 (which are addressed exclusively in those Sections) and (y) shall not be deemed breached if such breach relates to a matter which is covered by a representation or warranty of Parent and Merger Sub contained in this Article V (other than this Section 5.5(d)) that contains a “Parent’s Knowledge” qualification)Effect. (e) Since December 31, 2006 to the date of this Agreement, (i) neither Parent nor any Parent Subsidiary nor, to Parent’s Knowledge, any director, officer, auditor, accountant or representative of Parent or any of the Parent Subsidiaries has received any written complaint, allegation, assertion or claim that Parent or any of the Parent Subsidiaries has engaged in improper or illegal accounting or auditing practices or maintains improper or inadequate internal accounting controls relating to Parent and the Parent Subsidiaries, taken as a whole, (ii) no attorney representing Parent or any Parent Subsidiary has made a report to Parent’s chief legal officer, chief executive officer or Board of Directors (or any committee thereof) pursuant to the SEC’s Standards of Professional Conduct for Attorneys (17 CFR Part 205), and (iii) Parent has disclosed to its outside auditors any fraud, whether or not material, of which there is Parent’s Knowledge that involves management or other employees who have a significant role in Parent’s internal control over financial reporting.

Appears in 2 contracts

Sources: Merger Agreement (Patterson Companies, Inc.), Merger Agreement (Patterson Companies, Inc.)

SEC Documents; Financial Statements; Undisclosed Liabilities. (a) ~~Parent~~ The Company has filed or furnished, as applicable, all reports, schedules, ~~forms~~ forms, certifications, statements and ~~registration statements~~ other documents on a timely basis with the SEC required to be filed or furnished, as applicable, by ~~it pursuant to~~ the Company since and including January 1, 2020 through the date of this Agreement under the Exchange Act or the Securities Act (such documents, together with any documents and the Securities Act Rules, or the Exchange Act and the Exchange Act Rules, in each such case since January 1, 2005 (collectively, and in each case including all annexes and schedules thereto and documents information incorporated therein by reference ~~therein~~and together with any documents filed during such period by the Company with the SEC on a voluntary basis on Current Reports on Form 8-K, the “~~Parent~~ Company SEC Documents”). . (b) As of ~~their~~ its respective ~~dates~~ date, each Company SEC Document complied (or ~~if subsequently amended or superseded by a filing prior~~ with respect to Company SEC Documents filed after the date ~~of this Agreement~~hereof, ~~on the date of such filing), the Parent SEC Documents complied~~ will comply) as to form in all material respects with the requirements of the Exchange Act and the Securities Act ~~or the Exchange Act, as the case may be,~~ and the rules and regulations of the SEC promulgated thereunder applicable to such ~~Parent~~ Company SEC ~~Documents~~Document, ~~and~~ each as in effect on the date so filed. As of their respective dates (or, if amended prior to the date hereof, as of the date of such amendment), except to the extent revised or superseded by a later filed Company SEC Document, none of the ~~Parent~~ Company SEC Documents ~~as of such dates~~ contained (or with respect to Company SEC Documents filed after the date hereof, will contain) any untrue statement of a material fact or omitted to state a any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading~~. To Parent’s Knowledge, as of the date hereof, none of the Parent SEC Documents is the subject of ongoing SEC review~~. (bc) ~~Parent is~~ Each of the financial statements (including the related notes) of the Company included in ~~compliance with, and has complied,~~ the Company SEC Documents complied as to form at the time it was filed in all material respects with the applicable accounting requirements and the published rules and regulations of the SEC with respect thereto in effect at the time of filing, was prepared in accordance with accounting principles generally accepted in the U.S. (“GAAP”) in all material respects (except, in the case of unaudited financial statements, as permitted by the rules and regulations of the SEC) applied on a consistent basis during the periods involved (except as may be indicated in the notes thereto) and fairly presented in all material respects the consolidated financial position of the Company and its consolidated Subsidiaries as of the dates thereof and the consolidated results of their operations and cash flows for the periods shown (subject, in the case of unaudited financial statements, to normal year-end audit adjustments). (d) None of the Company or any Company Subsidiary has any liabilities or obligations of any nature (whether accrued, absolute, contingent or otherwise) except liabilities or obligations (i) disclosed and provided for in the most recent financial statements included in the Filed Company SEC Documents or of a nature not required by GAAP to be reflected thereon, (ii) related to the future performance of any Contract, (iii) incurred or arising in the ordinary course of business consistent with past practice since the date of the most recent financial statements included in the Filed Company SEC Documents, (iv) incurred under this Agreement or in connection with the Transactions, (v) disclosed in Section 3.05(d) of the Company Disclosure Letter, (vi) as would not reasonably be likely to, individually or in the aggregate, have a Company Material Adverse Effect or (vii) that will be discharged or paid in full prior to the Closing Date. (e) Section 3.05(e) of the Company Disclosure Letter sets forth with respect to all Indebtedness of the Company and the Company Subsidiaries for borrowed money outstanding on the date hereof: (i) the ~~applicable provisions~~ amount of such indebtedness, (ii) the lender of such indebtedness, (iii) the interest rate of such indebtedness, (iv) the maturity date of such indebtedness and (v) the collateral securing such indebtedness. (f) Since January 1, 2020, the Company has established and maintained a system of internal control over financial reporting (as defined in Rules 13a-15(f) and 15d-15(f) under the Exchange Act). Such internal controls provide reasonable assurance (i) regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with GAAP, (ii) that transactions are executed in accordance with management’s general or specific authorizations, (iii) that transactions are recorded as necessary to permit preparation of financial statements and to maintain asset accountability, (iv) that access to assets is permitted only in accordance with management’s general or specific authorization and (v) that the recorded accountability for assets is compared with the existing assets at reasonable intervals and appropriate action is taken with respect to any differences. Since January 1, 2020, (x) the Company has designed and maintains disclosure controls and procedures (as defined in Rules 13a-15(e) and 15d-15(e) under the Exchange Act) to ensure that material information required to be disclosed by the Company in the reports that it files or submits under the Exchange Act is recorded, processed, summarized and reported within the time periods specified in the SEC’s rules and forms and is accumulated and communicated to the Company’s management as appropriate to allow timely decisions regarding required disclosure, (y) to the Knowledge of the Company, such disclosure controls and procedures are effective in timely alerting the principal executive officer and principal financial officer of the Company to material information required to be included in the Company’s periodic reports required under the Exchange Act, and (z) the Company’s principal executive officer and its principal financial officer have disclosed to the Company’s independent registered public accounting firm and the audit committee of the Company Board (and made summaries of such disclosures available to Parent) (A) all known significant deficiencies and material weaknesses in the design or operation of internal controls over financial reporting that are reasonably likely to adversely affect in any material respect the Company’s ability to record, process, summarize and report financial information, and (B) any known fraud, whether or not material, that involves management or other employees who have a significant role in the Company’s internal controls over financial reporting. As of the date of this Agreement, the principal executive officer and principal financial officer of the Company have made all certifications required by the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002 and the ~~related rules and~~ regulations of the SEC promulgated thereunder, and ~~(ii)~~ the applicable listing and corporate governance rules and regulations of NASDAQ. Parent has established and maintains disclosure controls and procedures and internal control over financial reporting (as such terms are defined statements contained in paragraphs (e) and (f), respectively, of Rule 13a-15 under the Exchange Act) as required by Rule 13a-15 under the Exchange Act. Parent’s disclosure controls and procedures are reasonably designed to ensure that all material information required to be disclosed by Parent in the reports that it files or furnishes under the Exchange Act is recorded, processed, summarized and reported within the time periods specified in the rules and forms of the SEC, and that all such ~~material information is accumulated and communicated to the management of Parent as appropriate to allow timely decisions regarding required disclosure and to make the~~ certifications required pursuant to Sections 302 and 906 of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act. The management of Parent has completed its assessment of the effectiveness of Parent’s internal control over financial reporting in compliance with the requirements of Section 404 of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act for the year ended December 31, 2006, and such assessment concluded that such controls were effective to provide reasonable assurance regarding the reliability of Parent’s financial reporting and the preparation of Parent’s financial statements for external purposes in accordance with GAAP. Parent has disclosed, based on its assessment of the effectiveness of Parent’s internal control over financial reporting in compliance with the requirements of Section 404 of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act for the year ended December 31, 2006, to Parent’s independent registered accounting firm and the audit committee of the Board of Directors of Parent (A) any significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect Parent’s ability to record, process, summarize and report financial information and (B) any fraud, whether or not material, of which there is Parent’s Knowledge that involves management or other employees who have a significant role in Parent’s internal control over financial reporting for the year ended December 31, 2006. Parent any has made available to the Company a summary of any such disclosures made by management to such accounting firm or audit committee for the year ended December 31, 2006. (c) The consolidated financial statements of Parent included in the Parent SEC Documents (the “Parent SEC Financial Statements”) (i) have been prepared in accordance with GAAP (except as may be otherwise indicated therein or in the notes thereto and except, in the case of unaudited consolidated quarterly statementswere, as ~~permitted by Form 10-Q~~ of ~~the Exchange Act)~~their respective dates made, ~~applied on a consistent basis during the periods involved, (ii) complied~~ complete and correct in all material respects with published rules and regulations of the SEC with respect thereto, and (iii) fairly present in all material respects the consolidated financial position of Parent and its consolidated Parent Subsidiaries as of the respective dates thereof and the consolidated statements of income, cash flows and changes in stockholders’ equity for the respective periods then ended (subject, in the case of unaudited quarterly statements, to normal year-end audit adjustments and the absence of footnotes)respects. (d) As of March 31, 2007, neither Parent nor any of the Parent Subsidiaries had any liabilities or obligations that would have been required by GAAP to be reflected in the consolidated balance sheet of Parent and the Parent Subsidiaries as of such date, except (i) for such liabilities and obligations reflected, reserved against or otherwise disclosed in the consolidated balance sheet of Parent and the Parent Subsidiaries as of such date (including the notes thereto) that is included in the Parent SEC Financial Statements and (ii) for such liabilities and obligations as would not be reasonably expected to have, individually or in the aggregate, a Parent Material Adverse Effect (it is understood and agreed that the representations and warranties contained in this Section 5.5(d): (x) do not apply to matters described in any of Section 5.4, the other provisions of this Section 5.5, and Sections 5.7, 5.8, 5.9, 5.10, 5.11 and 5.17 (which are addressed exclusively in those Sections) and (y) shall not be deemed breached if such breach relates to a matter which is covered by a representation or warranty of Parent and Merger Sub contained in this Article V (other than this Section 5.5(d)) that contains a “Parent’s Knowledge” qualification). (e) Since December 31, 2006 to the date of this Agreement, (i) neither Parent nor any Parent Subsidiary nor, to Parent’s Knowledge, any director, officer, auditor, accountant or representative of Parent or any of the Parent Subsidiaries has received any written complaint, allegation, assertion or claim that Parent or any of the Parent Subsidiaries has engaged in improper or illegal accounting or auditing practices or maintains improper or inadequate internal accounting controls relating to Parent and the Parent Subsidiaries, taken as a whole, (ii) no attorney representing Parent or any Parent Subsidiary has made a report to Parent’s chief legal officer, chief executive officer or Board of Directors (or any committee thereof) pursuant to the SEC’s Standards of Professional Conduct for Attorneys (17 CFR Part 205), and (iii) Parent has disclosed to its outside auditors any fraud, whether or not material, of which there is Parent’s Knowledge that involves management or other employees who have a significant role in Parent’s internal control over financial reporting.

Appears in 2 contracts

Sources: Merger Agreement (Independence Realty Trust, Inc.), Merger Agreement (Steadfast Apartment REIT, Inc.)

SEC Documents; Financial Statements; Undisclosed Liabilities. (ai) ~~Parent~~ OPCH has filed or furnished all required registration statements, prospectuses, reports, schedules, ~~forms~~ forms, statements, certifications and ~~registration statements~~ other documents (including exhibits and all other information incorporated therein, regardless of when such exhibits and other information were filed) with the SEC ~~required to be filed by it pursuant to the Securities Act and the Securities Act Rules, or the Exchange Act and the Exchange Act Rules, in each such case~~ since January 1, ~~2005~~ 2021 (~~collectively, and in each case including all annexes and schedules thereto and documents incorporated by reference therein,~~ the “~~Parent~~ OPCH SEC Documents”). As of their respective ~~dates (or if subsequently amended or superseded by a filing prior to the date of this Agreement, on the date of such filing)~~dates, the ~~Parent~~ OPCH SEC Documents complied ~~as to form~~ in all material respects with the requirements of the Securities ~~Act or~~ Act, the Exchange Act and the S▇▇▇▇▇▇▇-▇▇▇▇▇ Act, as the case may be, and the rules and regulations of the SEC promulgated thereunder applicable to ~~such Parent~~ the OPCH SEC Documents, and none of the ~~Parent~~ OPCH SEC Documents ~~as of such dates~~ when filed and at their respective effective times, if applicable, contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading. ~~To Parent’s Knowledge, as~~ As of the date ~~hereof~~of this Agreement, there are no outstanding or unresolved comments received from the SEC with respect to any of the OPCH SEC Documents, and, to the knowledge of OPCH, none of the ~~Parent~~ OPCH SEC Documents is the subject of ~~ongoing~~ any outstanding SEC ~~review~~investigation. No subsidiary of OPCH is required to file reports with the SEC pursuant to the requirements of the Exchange Act. (bii) ~~Parent is~~ The consolidated financial statements (including all related notes and schedules) of OPCH and its subsidiaries included in ~~compliance with, and has complied,~~ the OPCH SEC Documents were prepared in all material respects in accordance with GAAP (iexcept, in the case of unaudited statements, as permitted by the SEC) applied on a consistent basis during the ~~applicable provisions~~ periods involved (except as may be indicated in the notes thereto) and fairly present in all material respects the consolidated financial position of OPCH and its consolidated subsidiaries as of the ~~▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002~~ dates thereof and the ~~related rules~~ consolidated results of their operations and ~~regulations promulgated thereunder~~cash flows for the periods then ended (subject, in the case of unaudited statements, to normal year-end audit adjustments which are not material and to any other adjustments described therein, including the notes thereto). (iii) Except (A) as reflected or reserved against in OPCH’s audited balance sheet as of December 31, 2022 (or the notes thereto) included in OPCH’s Annual Report on Form 10-K filed with the SEC on February 23, 2023 (the “OPCH Balance Sheet”), (B) for liabilities and obligations incurred in the ordinary course of business consistent with past practice since December 31, 2022, and (iiC) for liabilities and obligations incurred in connection with or contemplated by this Agreement, neither OPCH nor any of its subsidiaries has any liabilities or obligations of any nature (whether accrued, absolute, contingent or otherwise) that would be required by GAAP to be reflected on a consolidated balance sheet of OPCH and its subsidiaries (or in the ~~applicable listing and corporate governance rules and regulations~~ notes thereto) that, individually or in the aggregate, would reasonably be expected to have a Material Adverse Effect on OPCH. (iv) OPCH maintains a system of ~~NASDAQ. Parent has established and maintains disclosure controls and procedures and~~ “internal control over financial ~~reporting~~ reporting” (as ~~such terms are~~ defined in ~~paragraphs (e~~Rules 13a-15(f) and ~~(f), respectively,~~ 15d-15(f) of ~~Rule 13a-15 under~~ the Exchange Act) sufficient to provide reasonable assurance (A) that transactions are recorded as ~~required by Rule 13a-15 under~~ necessary to permit preparation of financial statements in conformity with GAAP, consistently applied, (B) that transactions are executed only in accordance with the authorization of management and (C) regarding prevention or timely detection of the unauthorized acquisition, use or disposition of OPCH’s properties or assets. Since January 1, 2021, none of OPCH, OPCH’s independent accountants, the Board of Directors of OPCH or its audit committee has identified or been made aware of any (1) “significant deficiency” in the internal controls over financial reporting of OPCH, (2) “material weakness” in the internal controls over financial reporting of OPCH, (3) fraud, whether or not material, that involves management or other employees of OPCH who have a significant role in the internal controls over financial reporting of OPCH or (4) any bona fide complaints regarding a material violation of accounting procedures, internal accounting controls or auditing matters, including from employees of OPCH or any of its subsidiaries regarding questionable accounting, auditing or legal compliance matters. (v) The “disclosure controls and procedures” (as defined in Rules 13a-15(e) and 15d-15(e) of the Exchange Act~~. Parent’s disclosure controls and procedures~~ ) utilized by OPCH are reasonably designed to ensure that all ~~material~~ information (both financial and non-financial) required to be disclosed by ~~Parent~~ OPCH in the reports that it files or ~~furnishes~~ submits under the Exchange Act is recorded, processed, summarized and reported within the time periods specified in the rules and forms of the ~~SEC,~~ SEC and that all such ~~material~~ information required to be disclosed is accumulated and communicated to the management of ~~Parent~~ OPCH, as ~~appropriate~~ appropriate, to allow timely decisions regarding required disclosure and to enable the chief executive officer and chief financial officer of OPCH to make the certifications required ~~pursuant to Sections 302 and 906 of~~ under the ~~▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act. The management of Parent has completed its assessment of the effectiveness of Parent’s internal control over financial reporting in compliance~~ Exchange Act with the requirements of Section 404 of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act for the year ended December 31, 2006, and such assessment concluded that such controls were effective to provide reasonable assurance regarding the reliability of Parent’s financial reporting and the preparation of Parent’s financial statements for external purposes in accordance with GAAP. Parent has disclosed, based on its assessment of the effectiveness of Parent’s internal control over financial reporting in compliance with the requirements of Section 404 of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act for the year ended December 31, 2006, to Parent’s independent registered accounting firm and the audit committee of the Board of Directors of Parent (A) any significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect Parent’s ability to record, process, summarize and report financial information and (B) any fraud, whether or not material, of which there is Parent’s Knowledge that involves management or other employees who have a significant role in Parent’s internal control over financial reporting for the year ended December 31, 2006. Parent any has made available to the Company a summary of any such disclosures made by management respect to such ~~accounting firm or audit committee for the year ended December 31, 2006~~reports. (cvi) ~~The consolidated financial statements~~ Neither OPCH nor any of ~~Parent included~~ its subsidiaries is a party to, or has any commitment to become a party to, any joint venture, off-balance sheet partnership or any similar contract (including any contract or arrangement relating to any transaction or relationship between or among OPCH and any of its subsidiaries, on the one hand, and any unconsolidated affiliate, including any structured finance, special purpose or limited purpose entity or person, on the other hand, or any “off-balance sheet arrangements” (as defined in ~~the Parent SEC Documents (the “Parent SEC Financial Statements”~~Item 303(a) ~~(i) have been prepared in accordance with GAAP (except as may be otherwise indicated therein or in the notes thereto and except, in the case~~ of ~~unaudited consolidated quarterly statements, as permitted by Form 10~~Regulation S-~~Q of~~ K under the Exchange Act)), ~~applied on a consistent basis during~~ where the periods involved, (ii) complied in all material respects with published rules and regulations of the SEC with respect thereto, and (iii) fairly present in all material respects the consolidated financial position of Parent and its consolidated Parent Subsidiaries as of the respective dates thereof and the consolidated statements of income, cash flows and changes in stockholders’ equity for the respective periods then ended (subject, in the case of unaudited quarterly statements, to normal year-end audit adjustments and the absence of footnotes). (d) As of March 31, 2007, neither Parent nor any of the Parent Subsidiaries had any liabilities purpose or ~~obligations that would have been required by GAAP to be reflected in the consolidated balance sheet of Parent and the Parent Subsidiaries as~~ intended effect of such ~~date~~contract is to avoid disclosure of any material transaction involving, ~~except (i) for such~~ or material liabilities ~~and obligations reflected~~of, reserved against or otherwise disclosed in the consolidated balance sheet of Parent and the Parent Subsidiaries as of such date (including the notes thereto) that is included in the Parent SEC Financial Statements and (ii) for such liabilities and obligations as would not be reasonably expected to have, individually or in the aggregate, a Parent Material Adverse Effect (it is understood and agreed that the representations and warranties contained in this Section 5.5(d): (x) do not apply to matters described in any of Section 5.4, the other provisions of this Section 5.5, and Sections 5.7, 5.8, 5.9, 5.10, 5.11 and 5.17 (which are addressed exclusively in those Sections) and (y) shall not be deemed breached if such breach relates to a matter which is covered by a representation or warranty of Parent and Merger Sub contained in this Article V (other than this Section 5.5(d)) that contains a “Parent’s Knowledge” qualification). (e) Since December 31, 2006 to the date of this Agreement, (i) neither Parent nor any Parent Subsidiary nor, to Parent’s Knowledge, any director, officer, auditor, accountant or representative of Parent OPCH or any of ~~the Parent Subsidiaries has received any written complaint, allegation, assertion~~ its subsidiaries in OPCH’s or claim that Parent or any of the Parent Subsidiaries has engaged in improper or illegal accounting or auditing practices or maintains improper or inadequate internal accounting controls relating to Parent and the Parent Subsidiaries, taken as a whole, (ii) no attorney representing Parent or any Parent Subsidiary has made a report to Parentsuch subsidiary’s chief legal officer, chief executive officer or Board of Directors (or any committee thereof) pursuant to the SEC’s Standards of Professional Conduct for Attorneys (17 CFR Part 205), and (iii) Parent has disclosed to its outside auditors any fraud, whether or not material, of which there is Parent’s Knowledge that involves management published financial statements or other ~~employees who have a significant role in Parent’s internal control over financial reporting~~OPCH SEC Documents.

Appears in 2 contracts

Sources: Merger Agreement (Amedisys Inc), Merger Agreement (Option Care Health, Inc.)

SEC Documents; Financial Statements; Undisclosed Liabilities. (ai) ~~Parent has~~ Sprint and its subsidiaries have filed or furnished all required registration statements, prospectuses, reports, schedules, ~~forms~~ forms, statements, certifications and ~~registration statements~~ other documents (including all exhibits and other information filed therewith or incorporated therein (including by reference), regardless of when such exhibits and other information were filed) with the SEC ~~required to be filed by it pursuant to the Securities Act and the Securities Act Rules, or the Exchange Act and the Exchange Act Rules, in each such case~~ since January 1, ~~2005~~ 2016 (~~collectively, and in each case including all annexes and schedules thereto and documents incorporated by reference therein,~~ the “~~Parent~~ Sprint SEC Documents”). As of their respective ~~dates (or if subsequently amended or superseded by a filing prior to the date of this Agreement, on the date of such filing)~~dates, the ~~Parent~~ Sprint SEC Documents complied ~~as to form~~ in all material respects with the requirements of the Securities ~~Act or~~ Act, the Exchange Act and the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002, as amended (the “▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act”), as the case may be, and the rules and regulations of the SEC promulgated thereunder applicable to ~~such Parent~~ the Sprint SEC Documents, and none of the ~~Parent~~ Sprint SEC Documents ~~as of such dates~~ when filed and at their respective effective times, if applicable, contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading. ~~To Parent~~Prior to the date of this Agreement, Sprint has furnished to T-Mobile true and complete copies of all comment letters from the SEC since January 1, 2016 through the date of this Agreement with respect to any of the Sprint SEC Documents, together with all written responses of Sprint thereto, other than any such letters and responses that are publicly available on the SEC’s ~~Knowledge~~Electronic Data Gathering, as Analysis and Retrieval database (“▇▇▇▇▇”) prior to the date of this Agreement. As of the date ~~hereof~~of this Agreement, there are no outstanding or unresolved comments received from the SEC with respect to any of the Sprint SEC Documents, and, to the knowledge of Sprint, none of the ~~Parent~~ Sprint SEC Documents is the subject of ~~ongoing~~ any outstanding SEC ~~review~~comment or investigation. No subsidiary of Sprint is required to file periodic reports with the SEC pursuant to the requirements of the Exchange Act. (bii) ~~Parent is~~ The consolidated financial statements (including all related notes and schedules) of Sprint and its subsidiaries included in ~~compliance with, and has complied,~~ the Sprint SEC Documents (the “Sprint Financial Statements”) when filed complied in all material respects with ~~(i)~~ the applicable ~~provisions of~~ accounting requirements and with the ~~▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002 and the related rules and regulations promulgated thereunder, and (ii) the applicable listing and corporate governance~~ published rules and regulations of ~~NASDAQ. Parent~~ the SEC with respect thereto, were prepared in accordance with United States generally accepted accounting principles (“GAAP”) (except, in the case of unaudited statements, as permitted by the SEC) applied on a consistent basis during the periods involved (except as may be indicated in the notes thereto) and fairly present in all material respects the consolidated financial position of Sprint and its consolidated subsidiaries as of the dates thereof and the consolidated results of their operations and cash flows for the periods then ended (subject, in the case of unaudited statements, to normal year-end audit adjustments which are not material and to any other adjustments described therein, including the notes thereto). (iii) Except (A) as (and to the extent) reflected or reserved against in Sprint’s unaudited balance sheet as of December 31, 2017 (or the notes thereto) included in the Sprint Filed SEC Documents, (B) for liabilities and obligations incurred in the ordinary course of business consistent with past practice since December 31, 2017, and (C) for liabilities and obligations incurred in connection with or contemplated by this Agreement, neither Sprint nor any of its subsidiaries has ~~established~~ any liabilities or obligations of any nature (whether accrued, absolute, contingent or otherwise, and whether or not required by GAAP to be reflected on a consolidated balance sheet of Sprint and its subsidiaries (or in the notes thereto)) that, individually or in the aggregate, would reasonably be expected to have a Material Adverse Effect on Sprint. (iv) Sprint maintains ~~disclosure controls and procedures and~~ a system of “internal control over financial ~~reporting~~ reporting” (as ~~such terms are~~ defined in ~~paragraphs (e~~Rules 13a-15(f) and ~~(f), respectively,~~ 15d-15(f) of ~~Rule 13a-15 under~~ the Exchange Act) reasonably designed to provide reasonable assurance regarding the reliability of Sprint’s financial reporting and the preparation of Sprint’s financial statements for external purposes in accordance with GAAP and that includes policies and procedures that (A) pertain to the maintenance of records that in reasonable detail accurately and fairly reflect the transactions and dispositions of the assets of Sprint, (B) provide reasonable assurance that transactions are recorded as ~~required~~ necessary to permit preparation of financial statements in accordance with GAAP, and that receipts and expenditures of Sprint are being made only in accordance with authorizations of management and directors of Sprint and (C) provide reasonable assurance regarding prevention or timely detection of unauthorized acquisition, use or disposition of Sprint’s assets that could have a material effect on its financial statements. Since January 1, 2016, none of Sprint, Sprint’s independent accountants, the Board of Directors of Sprint or its audit committee has received any written or, to the knowledge of Sprint, oral notification of any (1) “significant deficiency” in the internal controls over financial reporting of Sprint, (2) “material weakness” in the internal controls over financial reporting of Sprint or (3) fraud, whether or not material, that involves management or other employees of Sprint who have a significant role in the internal controls over financial reporting of Sprint. Since January 1, 2016 through the date of this Agreement, there have been no material internal investigations regarding accounting, auditing or revenue recognition discussed with, reviewed by ~~Rule 13a-15 under~~ or initiated at the direction of the chief executive officer, chief financial officer, chief accounting officer or general counsel of Sprint or the Board of Directors of Sprint or any committee thereof. (v) The “disclosure controls and procedures” (as defined in Rules 13a-15(e) and 15d-15(e) of the Exchange Act~~. Parent’s disclosure controls and procedures~~ ) utilized by Sprint are reasonably designed to ensure that all ~~material~~ information (both financial and non-financial) required to be disclosed by ~~Parent~~ Sprint in the reports that it files or ~~furnishes~~ submits under the Exchange Act is recorded, processed, summarized and reported within the time periods specified in the rules and forms of the ~~SEC,~~ SEC and that all such ~~material~~ information required to be disclosed is accumulated and communicated to the management of ~~Parent~~ Sprint, as ~~appropriate~~ appropriate, to allow timely decisions regarding required disclosure and to enable the chief executive officer and chief financial officer of Sprint to make the certifications required under the Exchange Act with respect to such reports. (vi) Since January 1, 2016, (A) neither Sprint nor any of its subsidiaries has received any written or, to the knowledge of Sprint, oral complaint, allegation, assertion or claim regarding accounting, internal accounting controls or auditing practices, procedures, methodologies or methods of Sprint or any of its subsidiaries, or unlawful accounting or auditing matters with respect to Sprint or any of its subsidiaries, and (B) no attorney representing Sprint or any of its subsidiaries, whether or not employed by Sprint or any of its subsidiaries, has reported evidence of a violation of securities Laws, breach of fiduciary duty or similar violation by Sprint or any of its subsidiaries or any of their respective officers, directors, employees or agents to the Board of Directors of Sprint or any committee thereof or to the general counsel or chief executive officer of Sprint pursuant to ~~Sections 302 and 906~~ the rules of the SEC adopted under Section 307 of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act~~. The management of Parent has completed its assessment of the effectiveness of Parent’s internal control over financial reporting~~ , in compliance with the requirements of Section 404 of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act for the year ended December 31, 2006, and such assessment concluded that such controls were effective to provide reasonable assurance regarding the reliability of Parent’s financial reporting and the preparation of Parent’s financial statements for external purposes in accordance with GAAP. Parent has disclosed, based on its assessment of the effectiveness of Parent’s internal control over financial reporting in compliance with the requirements of Section 404 of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act for the year ended December 31, 2006, to Parent’s independent registered accounting firm and the audit committee of the Board of Directors of Parent each case (A) any significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect Parent’s ability to record, process, summarize and report financial information and (B) any fraud, whether or not material, of which there is Parent’s Knowledge that involves management or other employees who have a significant role in Parent’s internal control over financial reporting for the year ended December 31, 2006. Parent any has made available to the Company a summary of any such disclosures made by management to such accounting firm or audit committee for the year ended December 31, 2006. (c) The consolidated financial statements of Parent included in the Parent SEC Documents (the “Parent SEC Financial Statements”) (i) have been prepared in accordance with GAAP (except as may be otherwise indicated therein or in the notes thereto and except, in the case of unaudited consolidated quarterly statements, as permitted by Form 10-Q of the Exchange Act), applied on a consistent basis during the periods involved, (ii) complied in all material respects with published rules and regulations of the SEC with respect thereto, and (iii) fairly present in all material respects the consolidated financial position of Parent and its consolidated Parent Subsidiaries as of the respective dates thereof and the consolidated statements of income, cash flows and changes in stockholders’ equity for the respective periods then ended (subject, in the case of unaudited quarterly statements, to normal year-end audit adjustments and the absence of footnotes). (d) As of March 31, 2007, neither Parent nor any of the Parent Subsidiaries had any liabilities or obligations that would have been required by GAAP to be reflected in the consolidated balance sheet of Parent and the Parent Subsidiaries as of such date, except (i) for such liabilities and obligations reflected, reserved against or otherwise disclosed in the consolidated balance sheet of Parent and the Parent Subsidiaries as of such date (including the notes thereto) that is included in the Parent SEC Financial Statements and (ii) for such liabilities and obligations as would not be reasonably expected to haveas, individually or in the aggregate, ~~a Parent Material Adverse Effect (it is understood and agreed that the representations and warranties contained in this Section 5.5(d): (x) do~~ has not ~~apply to matters described in any of Section 5.4, the other provisions of this Section 5.5~~been, and ~~Sections 5.7~~would not reasonably be expected to be, ~~5.8, 5.9, 5.10, 5.11~~ materially adverse to Sprint and 5.17 (which are addressed exclusively in those Sections) and (y) shall not be deemed breached if such breach relates to a matter which is covered by a representation or warranty of Parent and Merger Sub contained in this Article V (other than this Section 5.5(d)) that contains a “Parent’s Knowledge” qualification). (e) Since December 31, 2006 to the date of this Agreement, (i) neither Parent nor any Parent Subsidiary nor, to Parent’s Knowledge, any director, officer, auditor, accountant or representative of Parent or any of the Parent Subsidiaries has received any written complaint, allegation, assertion or claim that Parent or any of the Parent Subsidiaries has engaged in improper or illegal accounting or auditing practices or maintains improper or inadequate internal accounting controls relating to Parent and the Parent Subsidiariesits subsidiaries, taken as a whole. (vii) Neither Sprint nor any of its subsidiaries is a party to, or has any commitment to become a party to, any joint venture, off-balance sheet partnership or similar contract (~~ii) no attorney representing Parent~~ including any contract or arrangement relating to any transaction or relationship between or among Sprint and any of its subsidiaries, on the one hand, and any unconsolidated affiliate, including any structured finance, special purpose or limited purpose entity or person, on the other hand, or any ~~Parent Subsidiary has made a report~~ “off-balance sheet arrangements” (as defined in Item 303(a) of Regulation S-K under the Exchange Act)), where the result, purpose or intended effect of such contract is to ~~Parent’s chief legal officer~~avoid disclosure of any material transaction involving, ~~chief executive officer~~ or ~~Board of Directors (~~material liabilities of, Sprint or any ~~committee thereof~~of its subsidiaries in the Sprint Financial Statements or otherwise in the Sprint SEC Documents. (viii) ~~pursuant to~~ Sprint is in compliance in all material respects with the ~~SEC’s Standards~~ applicable rules and regulations of ~~Professional Conduct for Attorneys (17 CFR Part 205),~~ the NYSE and ~~(iii) Parent has disclosed to its outside auditors any fraud, whether or not material,~~ the applicable listing requirements of ~~which there is Parent’s Knowledge that involves management or other employees who have a significant role in Parent’s internal control over financial reporting~~the NYSE.

Appears in 2 contracts

Sources: Business Combination Agreement (T-Mobile US, Inc.), Business Combination Agreement (SPRINT Corp)

SEC Documents; Financial Statements; Undisclosed Liabilities. (a) Parent has filed or furnished all reports, schedules, ~~forms~~ forms, statements, registration statements, prospectuses and ~~registration statements with the SEC~~ other documents (including exhibits and other information incorporated therein) required to be filed or furnished by ~~it pursuant to~~ Parent with the SEC under the Securities Act ~~and the Securities Act Rules,~~ or the Exchange Act ~~and the Exchange Act Rules, in each such case~~ since January 1, ~~2005~~ 2013 (~~collectively~~such documents, ~~and in each case including all annexes and schedules thereto and~~ together with any documents ~~incorporated~~ filed or furnished during such period by ~~reference therein~~Parent to the SEC on a voluntary basis, the “Parent SEC Documents”). No Parent Subsidiary is, or has at any time since January 1, 2013 been, subject to the periodic reporting requirements of the Exchange Act or is or has been otherwise required to file any form, report, statement, schedule, certificate or other document with the SEC, any foreign Governmental Entity that performs a similar function to that of the SEC or any securities exchange or quotation system. (b) As of ~~their~~ its respective ~~dates (or~~ date, or, if ~~subsequently~~ amended ~~or superseded by a filing~~ prior to the date hereof, as of ~~this Agreement, on~~ the date of the last such ~~filing)~~amendment, each of the Parent SEC Documents complied ~~as to form~~ when filed or furnished (or, if applicable, when amended) in all material respects with the requirements of the Securities ~~Act or~~ Act, the Exchange Act and the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act, as in each case to the ~~case may be, and the rules and regulations of the SEC promulgated thereunder~~ extent applicable to such Parent SEC Documents, and none of the Parent SEC Documents as when filed or furnished (or in the case of ~~such dates~~ a registration statement under the Securities Act, at the time it was declared effective) contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not ~~misleading. To Parent’s Knowledge~~misleading (and no Parent SEC Document that is a registration statement, as amended or supplemented, if applicable, filed pursuant to the Securities Act, as of the date ~~hereof~~such registration statement or amendment became effective, ~~none~~ contained any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary to make the statements therein not misleading). (c) The consolidated financial statements of Parent included in the Parent SEC Documents is (including, in each case, any notes or schedules thereto) and all related compilations, reviews and other reports issued by Parent’s accountants with respect thereto (the ~~subject~~ “Parent SEC Financial Statements”), have been derived from the accounting books and records of ~~ongoing~~ Parent and the Parent Subsidiaries and (i) as of their respective dates of filing with the SEC ~~review~~complied as to form in all material respects with applicable accounting requirements and the published rules and regulations of the SEC with respect thereto, (ii) were prepared in accordance with GAAP applied on a consistent basis during the periods involved (except as may be indicated in the notes thereto and except, in the case of the unaudited interim statements, as may be permitted by Form 10-Q and Regulation S-X of the SEC) and (iii) fairly present, in all material respects, the consolidated financial position of Parent and the Parent Subsidiaries, as at the respective dates thereof, and the consolidated results of their operations, and, where included, their consolidated stockholders’ equity and their consolidated cash flows for the respective periods indicated (subject, in the case of the unaudited statements, to normal year-end audit adjustments (which are not material in significance or amount) and the absence of notes). No financial statements of any Person other than Parent and the Parent Subsidiaries are required by GAAP to be included in the consolidated financial statements of Parent. Except as required by GAAP and disclosed in the Parent SEC Documents, between January 1, 2013 and the date of this Agreement, Parent has not made or adopted any material change in its accounting methods, practices or policies. (bd) Parent is in compliance ~~with, and has complied,~~ in all material respects with (i) the applicable provisions of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act ~~of 2002 and the related rules and regulations promulgated thereunder,~~ and (ii) the applicable listing and corporate governance rules and regulations of ~~NASDAQ~~the NYSE. (e) There are no outstanding or unresolved comments in comment letters received from the SEC staff with respect to any Parent SEC Documents and none of the Parent SEC Documents (other than confidential treatment requests) is, to the Knowledge of Parent, the subject of ongoing SEC review. There are no internal investigations, any SEC inquiries or investigations or other governmental inquiries or investigations pending or, to the Knowledge of Parent, threatened, in each case regarding any accounting practices of Parent. (f) Since January 1, 2013, Parent has ~~established~~ designed and ~~maintains~~ maintained disclosure controls and procedures and internal control over financial reporting (as such terms are defined in ~~paragraphs (e) and (f), respectively, of~~ Rule 13a-15 and Rule 15d-15 under the Exchange Act) as required by ~~Rule~~ Rules 13a-15 and 15d-15 under the Exchange Act. Parent’s disclosure controls and procedures are ~~reasonably~~ designed to ensure that all ~~material~~ information (both financial and non-financial) required to be disclosed by Parent in the reports that it files or furnishes under the Exchange Act is recorded, processed, summarized and reported within the time periods specified in the rules and forms of the SEC, and that all such ~~material~~ information is accumulated and communicated to ~~the~~ Parent’s management ~~of Parent~~ as appropriate to allow timely decisions regarding required disclosure and to make the certifications required pursuant to Sections 302 and 906 of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act. ~~The~~ Parent’s management ~~of Parent~~ has completed ~~its~~ an assessment of the effectiveness of Parent’s ~~internal control over financial reporting~~ disclosure controls and procedures and, to the extent required by applicable Law, presented in ~~compliance with~~ any applicable Parent SEC Document that is a report on Form 10-K or Form 10-Q, or any amendment thereto, its conclusions about the ~~requirements of Section 404~~ effectiveness of the ~~▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act for~~ disclosure controls and procedures as of the ~~year ended December 31, 2006, and~~ end of the period covered by such ~~assessment concluded that~~ report or amendment based on such ~~controls were effective to provide reasonable assurance regarding the reliability of~~ evaluation. Based on Parent’s ~~financial reporting and the preparation of Parent~~management’s ~~financial statements for external purposes in accordance with GAAP. Parent has disclosed, based on its assessment of the effectiveness~~ most recently completed evaluation of Parent’s internal control over financial ~~reporting in compliance with the requirements of Section 404 of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act for the year ended December 31~~reporting, ~~2006, to Parent’s independent registered accounting firm and the audit committee of the Board of Directors of~~ (i) Parent ~~(A) any~~ had no significant deficiencies ~~and~~ or material weaknesses in the design or operation of its internal control over financial reporting ~~which are~~ that would reasonably ~~likely~~ be expected to adversely affect Parent’s ability to record, process, summarize and report financial information and (Bii) Parent does not have Knowledge of any fraud, whether or not material, of which there is Parent’s Knowledge that involves management or other employees who have a significant role in Parent’s internal control over financial reporting for the year ended December 31, 2006. Parent any has made available to the Company a summary of any such disclosures made by management to such accounting firm or audit committee for the year ended December 31, 2006. (c) The consolidated financial statements of Parent included in the Parent SEC Documents (the “Parent SEC Financial Statements”) (i) have been prepared in accordance with GAAP (except as may be otherwise indicated therein or in the notes thereto and except, in the case of unaudited consolidated quarterly statements, as permitted by Form 10-Q of the Exchange Act), applied on a consistent basis during the periods involved, (ii) complied in all material respects with published rules and regulations of the SEC with respect thereto, and (iii) fairly present in all material respects the consolidated financial position of Parent and its consolidated Parent Subsidiaries as of the respective dates thereof and the consolidated statements of income, cash flows and changes in stockholders’ equity for the respective periods then ended (subject, in the case of unaudited quarterly statements, to normal year-end audit adjustments and the absence of footnotes). (d) As of March 31, 2007, neither Parent nor any of the Parent Subsidiaries had any liabilities or obligations that would have been required by GAAP to be reflected in the consolidated balance sheet of Parent and the Parent Subsidiaries as of such date, except (i) for such liabilities and obligations reflected, reserved against or otherwise disclosed in the consolidated balance sheet of Parent and the Parent Subsidiaries as of such date (including the notes thereto) that is included in the Parent SEC Financial Statements and (ii) for such liabilities and obligations as would not be reasonably expected to have, individually or in the aggregate, a Parent Material Adverse Effect (it is understood and agreed that the representations and warranties contained in this Section 5.5(d): (x) do not apply to matters described in any of Section 5.4, the other provisions of this Section 5.5, and Sections 5.7, 5.8, 5.9, 5.10, 5.11 and 5.17 (which are addressed exclusively in those Sections) and (y) shall not be deemed breached if such breach relates to a matter which is covered by a representation or warranty of Parent and Merger Sub contained in this Article V (other than this Section 5.5(d)) that contains a “Parent’s Knowledge” qualification). (e) Since December 31, 2006 to the date of this Agreement, (i) neither Parent nor any Parent Subsidiary nor, to Parent’s Knowledge, any director, officer, auditor, accountant or representative of Parent or any of the Parent Subsidiaries has received any written complaint, allegation, assertion or claim that Parent or any of the Parent Subsidiaries has engaged in improper or illegal accounting or auditing practices or maintains improper or inadequate internal accounting controls relating to Parent and the Parent Subsidiaries, taken as a whole, (ii) no attorney representing Parent or any Parent Subsidiary has made a report to Parent’s chief legal officer, chief executive officer or Board of Directors (or any committee thereof) pursuant to the SEC’s Standards of Professional Conduct for Attorneys (17 CFR Part 205), and (iii) Parent has disclosed to its outside auditors any fraud, whether or not material, of which there is Parent’s Knowledge that involves management or other employees who have a significant role in Parent’s internal control over financial reporting. Since January 1, 2013, to the Knowledge of Parent, no executive officer or director of Parent has received or otherwise had or obtained knowledge of, and to the Knowledge of Parent, no auditor, accountant, or representative of Parent has provided written notice to Parent or any executive officer or director of, any substantive complaint or allegation that Parent or any of its Subsidiaries has engaged in improper accounting practices. Since January 1, 2013, to the Knowledge of Parent, no attorney representing Parent or any of the Parent Subsidiaries has reported to the Parent Board or any committee thereof or to any current director or executive officer of Parent evidence of a material violation of United States or other securities Laws or breach of fiduciary duty by Parent or any of its executive officers or directors. (g) Parent and the Parent Subsidiaries do not have any liabilities or obligations of any nature (whether absolute or contingent, asserted or unasserted, known or unknown, primary or secondary, direct or indirect, and whether or not accrued), except (i) those that, individually or in the aggregate, have not had and would not reasonably be expected to have a Parent Material Adverse Effect, (ii) as reflected or reserved against in the most recent audited balance sheet included in the Parent SEC Financial Statements or the notes thereto, (iii) for liabilities and obligations incurred in the ordinary course of business since the date of the most recent audited balance sheet included in the Parent SEC Financial Statements and (iv) for liabilities and obligations arising out of or in connection with this Agreement or the Mergers. Neither Parent nor any of the Parent Subsidiaries is a party to, or has any commitment to become a party to, any joint venture, off-balance sheet partnership or any similar Contract or arrangement (including any Contract or arrangement relating to any transaction or relationship between or among Parent and any of the Parent Subsidiaries, on the one hand, and any unconsolidated Affiliate, including any structured finance, special purpose or limited purpose entity or Person, on the other hand, or any material “off-balance sheet arrangement” (as defined in Item 303(a) of Regulation S-K of the Exchange Act)), where the result, purpose or intended effect of such Contract or arrangement is to avoid disclosure of any material transaction involving, or material liabilities of, Parent or any of the Parent Subsidiaries in the Parent SEC Financial Statements or other Parent SEC Documents.

Appears in 2 contracts

Sources: Agreement and Plan of Merger (Pinnacle Foods Inc.), Agreement and Plan of Merger (Hillshire Brands Co)

SEC Documents; Financial Statements; Undisclosed Liabilities. (a) ~~Parent~~ The Company has timely filed or furnished all reports, schedules, ~~forms~~ forms, statements, registration statements, prospectuses and ~~registration statements with the SEC~~ other documents required to be filed or furnished by ~~it pursuant to~~ the Company with the SEC under the Securities Act ~~and the Securities Act Rules,~~ or the Exchange Act ~~and the Exchange Act Rules, in each such case~~ since January 1, ~~2005~~ 2018 (~~collectively, and in each case including all annexes and schedules thereto and documents incorporated by reference therein,~~ the “~~Parent~~ Company SEC Documents”). None of the Subsidiaries of the Company is required to make any filings with the SEC. (b) As of ~~their~~ its respective ~~dates~~ filing date (or or, if ~~subsequently~~ amended or superseded ~~by a filing~~ prior to the date of this Agreement, on the date of such filing~~), the Parent~~ ) each Company SEC ~~Documents~~ Document complied as to form in all material respects with the requirements of the ~~Securities~~ Exchange Act or the ~~Exchange~~ Securities Act, as the case may be, and the rules and regulations of the SEC promulgated thereunder applicable to such ~~Parent~~ Company SEC ~~Documents,~~ Document and ~~none of the Parent SEC Documents as of such dates contained~~ did not contain any untrue statement of a material fact or ~~omitted~~ omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading. ~~To Parent’s Knowledge, as~~ As of the date ~~hereof~~of this Agreement, there are no outstanding or unresolved comments received from the SEC or its staff with respect to the Company SEC Documents, and to the Knowledge of the Company, none of the ~~Parent~~ Company SEC Documents is the subject of ongoing SEC review, outstanding SEC comment or outstanding SEC investigation or other governmental investigation regarding the accounting practices of the Company. (bc) ~~Parent is~~ The consolidated financial statements of the Company included in ~~compliance with~~the Company SEC Documents (including, ~~and has complied~~in each case, any notes or schedules thereto) (the “Company SEC Financial Statements”) (i) complied as to form in all material respects with ~~(i)~~ the applicable ~~provisions of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002~~ accounting requirements and ~~the related rules and regulations promulgated thereunder, and (ii) the applicable listing and corporate governance~~ published rules and regulations of ~~NASDAQ. Parent has established~~ the SEC with respect thereto, (ii) fairly present, in all material respects, the financial condition and ~~maintains disclosure controls~~ the results of operations, cash flows and ~~procedures~~ changes in stockholders’ equity of the Company and ~~internal control over financial reporting~~ its Subsidiaries (on a consolidated basis) as ~~such terms are defined~~ of the respective dates of and for the periods referred to in ~~paragraphs (e)~~ the Company SEC Financial Statements, and (fiii) were prepared in accordance with GAAP as applied by the Company (except as may be indicated in the notes thereto or, in the case of unaudited statements, as permitted by Form 10-Q of the SEC), ~~respectively~~subject, in the case of interim Company SEC Financial Statements, to normal year-end adjustments and the absence of notes. (d) The Company has timely filed all certifications and statements required by (i) Rule ~~13a-15~~ 13a-14 or Rule 15d-14 under the Exchange Act; or (ii) as required by Rule 13a-15 under the Exchange Act. Parent’s disclosure controls and procedures are reasonably designed to ensure that all material information required to be disclosed by Parent in the reports that it files or furnishes under the Exchange Act is recorded, processed, summarized and reported within the time periods specified in the rules and forms of the SEC, and that all such material information is accumulated and communicated to the management of Parent as appropriate to allow timely decisions regarding required disclosure and to make the certifications required pursuant to Sections 302 and 18 U.S.C. Section 1350 (Section 906 of the ▇S▇▇▇▇▇▇▇-▇▇▇▇▇ Act) with respect to all applicable Company SEC Documents. The ~~management of Parent has completed~~ Company maintains disclosure controls and procedures required by Rule 13a-15 or Rule 15d-15 under the Exchange Act, which such controls and procedures are designed to ensure that all material information concerning the Company and its ~~assessment~~ Subsidiaries is made known on a timely basis to the individuals responsible for the preparation of the ~~effectiveness~~ Company SEC Documents. The Company has disclosed, based on its most recent evaluation of ~~Parent~~the Company’s internal control over financial reporting ~~in compliance with~~ prior to the ~~requirements~~ date of Section 404 of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act for the year ended December 31, 2006, and such assessment concluded that such controls were effective to provide reasonable assurance regarding the reliability of Parent’s financial reporting and the preparation of Parent’s financial statements for external purposes in accordance with GAAP. Parent has disclosed, based on its assessment of the effectiveness of Parent’s internal control over financial reporting in compliance with the requirements of Section 404 of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act for the year ended December 31, 2006this Agreement, to ~~Parent~~the Company’s ~~independent registered accounting firm~~ auditors and the audit committee of the Company Board ~~of Directors of Parent~~ (Ai) any significant deficiencies and material weaknesses in the design or operation of its internal ~~control~~ controls over financial reporting ~~which~~ (as defined in Rule 13a-15(f) under the Exchange Act) that occurred since January 1, 2018 and are reasonably likely to adversely affect ~~Parent~~the Company’s ability to record, process, summarize and report financial information and (Bii) any ~~fraud,~~ fraud whether or not material, ~~of which there is Parent’s Knowledge~~ that involves management or other employees who have a significant role in ~~Parent~~the Company’s internal control over financial ~~reporting for the year ended December 31, 2006~~reporting. ~~Parent any~~ The Company has made available to ~~the Company a summary of any~~ Parent all such disclosures made by management to ~~such accounting firm or~~ the Company’s auditors and audit committee ~~for the year ended December 31~~since January 1, ~~2006~~2018. (ce) The consolidated financial statements of Parent included in the Parent SEC Documents (the “Parent SEC Financial Statements”) (i) have been prepared in accordance with GAAP (except as may be otherwise indicated therein or in the notes thereto and except, in the case of unaudited consolidated quarterly statements, as permitted by Form 10-Q of the Exchange Act), applied on a consistent basis during the periods involved, (ii) complied in all material respects with published rules and regulations of the SEC with respect thereto, and (iii) fairly present in all material respects the consolidated financial position of Parent Company and its ~~consolidated Parent~~ Subsidiaries as of the respective dates thereof and the consolidated statements of income, cash flows and changes in stockholders’ equity for the respective periods then ended (subject, in the case of unaudited quarterly statements, to normal year-end audit adjustments and the absence of footnotes). (d) As of March 31, 2007, neither Parent nor any of the Parent Subsidiaries had do not have any liabilities or obligations ~~that would have been~~ of any nature (whether absolute or contingent, asserted or unasserted, known or unknown, primary or secondary, direct or indirect, and whether or not accrued) required by GAAP to be reflected ~~in the~~ or reserved on a consolidated balance sheet of ~~Parent and~~ the ~~Parent Subsidiaries as of such date,~~ Company (or the notes thereto) except (i) ~~for such liabilities and obligations reflected~~as disclosed, reflected or reserved against ~~or otherwise disclosed~~ in the Company’s consolidated audited balance sheet ~~of Parent and the Parent Subsidiaries~~ as of ~~such date (including~~ December 29, 2018 or the notes ~~thereto) that is~~ thereto included in the ~~Parent SEC Financial Statements and~~ Company’s Annual Report on Form 10-K filed prior to the date hereof for the fiscal year ended December 29, 2018, (ii) for ~~such~~ liabilities and obligations ~~as would not be reasonably expected to have~~incurred in the ordinary course of business since December 29, 2018, (iii) for liabilities and obligations arising out of or in connection with this Agreement, the Offer, the Merger or the Transactions and (iv) for liabilities and obligations that, individually or in the aggregate, have not had, or would not reasonably be expected to have, a ~~Parent~~ Company Material Adverse Effect (it is understood and agreed that the representations and warranties contained in this Section 5.5(d): (x) do not apply to matters described in any of Section 5.4, the other provisions of this Section 5.5, and Sections 5.7, 5.8, 5.9, 5.10, 5.11 and 5.17 (which are addressed exclusively in those Sections) and (y) shall not be deemed breached if such breach relates to a matter which is covered by a representation or warranty of Parent and Merger Sub contained in this Article V (other than this Section 5.5(d)) that contains a “Parent’s Knowledge” qualification)Effect. (e) Since December 31, 2006 to the date of this Agreement, (i) neither Parent nor any Parent Subsidiary nor, to Parent’s Knowledge, any director, officer, auditor, accountant or representative of Parent or any of the Parent Subsidiaries has received any written complaint, allegation, assertion or claim that Parent or any of the Parent Subsidiaries has engaged in improper or illegal accounting or auditing practices or maintains improper or inadequate internal accounting controls relating to Parent and the Parent Subsidiaries, taken as a whole, (ii) no attorney representing Parent or any Parent Subsidiary has made a report to Parent’s chief legal officer, chief executive officer or Board of Directors (or any committee thereof) pursuant to the SEC’s Standards of Professional Conduct for Attorneys (17 CFR Part 205), and (iii) Parent has disclosed to its outside auditors any fraud, whether or not material, of which there is Parent’s Knowledge that involves management or other employees who have a significant role in Parent’s internal control over financial reporting.

Appears in 2 contracts

Sources: Merger Agreement (Iac/Interactivecorp), Merger Agreement (Iac/Interactivecorp)

SEC Documents; Financial Statements; Undisclosed Liabilities. (a) ~~Parent~~ The Company has timely filed ~~all reports, schedules, forms and registration statements~~ with ~~the SEC required to be filed by it pursuant~~ or furnished to the ~~Securities Act and the Securities Act Rules~~SEC, ~~or the Exchange Act and the Exchange Act Rules~~as applicable, ~~in each such case since January 1, 2005 (collectively, and in each case including~~ all ~~annexes and schedules thereto and documents incorporated by reference therein, the “Parent~~ Company SEC Documents”). As of ~~their~~ its respective ~~dates~~ date, each Company SEC Document (including any financial statements or ~~if subsequently amended or superseded by a filing prior to the date of this Agreement, on the date of such filing), the Parent SEC Documents~~ schedules included therein) complied ~~as to form~~ in all material respects with the applicable requirements of the Securities Act or and the Exchange Act, as the case may be, and the rules and regulations of the SEC promulgated thereunder applicable to such ~~Parent~~ Company SEC Documents, and ~~none of the Parent SEC Documents as of such dates contained~~ did not contain any untrue statement of a material fact or ~~omitted~~ omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading. As of the date hereof, there are no outstanding or unresolved comments in comment letters from the SEC with respect to any of the Company SEC Documents. To ~~Parent’s Knowledge~~the Knowledge of the Company, as of the date hereof, none of the ~~Parent~~ Company SEC Documents is the subject of ongoing SEC review, outstanding SEC comment or outstanding SEC investigation. (b) ~~Parent is in compliance with~~As of their respective dates, ~~and has complied,~~ the Financial Statements complied as to form in all material respects with ~~(i) the~~ applicable ~~provisions of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002~~ accounting requirements and the ~~related rules and regulations promulgated thereunder, and (ii) the applicable listing and corporate governance~~ published rules and regulations of ~~NASDAQ. Parent has established and maintains disclosure controls and procedures and internal control over financial reporting (as such terms are defined in paragraphs (e) and (f)~~the SEC with respect thereto, respectively, of Rule 13a-15 under the Exchange Act) as required by Rule 13a-15 under the Exchange Act. Parent’s disclosure controls and procedures are reasonably designed to ensure that all material information required to be disclosed by Parent in the reports that it files or furnishes under the Exchange Act is recorded, processed, summarized and reported within the time periods specified in the rules and forms of the SEC, and that all such material information is accumulated and communicated to the management of Parent as appropriate to allow timely decisions regarding required disclosure and to make the certifications required pursuant to Sections 302 and 906 of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act. The management of Parent has completed its assessment of the effectiveness of Parent’s internal control over financial reporting in compliance with the requirements of Section 404 of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act for the year ended December 31, 2006, and such assessment concluded that such controls were effective to provide reasonable assurance regarding the reliability of Parent’s financial reporting and the preparation of Parent’s financial statements for external purposes in accordance with GAAP. Parent has disclosed, based on its assessment of the effectiveness of Parent’s internal control over financial reporting in compliance with the requirements of Section 404 of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act for the year ended December 31, 2006, to Parent’s independent registered accounting firm and the audit committee of the Board of Directors of Parent (A) any significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect Parent’s ability to record, process, summarize and report financial information and (B) any fraud, whether or not material, of which there is Parent’s Knowledge that involves management or other employees who have a significant role in Parent’s internal control over financial reporting for the year ended December 31, 2006. Parent any has made available to the Company a summary of any such disclosures made by management to such accounting firm or audit committee for the year ended December 31, 2006. (c) The consolidated financial statements of Parent included in the Parent SEC Documents (the “Parent SEC Financial Statements”) (i) have having been prepared in accordance with GAAP (except as may be ~~otherwise~~ indicated ~~therein or~~ in the notes thereto ~~and except~~and, in the case of unaudited ~~consolidated quarterly~~ statements, as permitted by ~~Form 10-Q of the Exchange Act),~~ Law) applied on a consistent basis during the periods ~~involved~~involved (except as may be indicated in the notes thereto), ~~(ii) complied~~ and fairly presented, in all material ~~respects with published rules and regulations of the SEC with respect thereto~~respects, ~~and (iii) fairly present in all material respects~~ the consolidated financial position of ~~Parent~~ the Company and its consolidated ~~Parent~~ Subsidiaries as of the ~~respective~~ dates thereof and the consolidated ~~statements~~ results of ~~income,~~ their operations and cash flows ~~and changes in stockholders’ equity~~ for the ~~respective~~ periods then ended (subject, in the case of unaudited ~~quarterly~~ statements, to the absence of footnote disclosure and to normal year-end audit ~~adjustments~~ adjustments). (c) The Company has previously furnished or made available to Parent true and complete copies of the annual financial statement for the year ended December 31, 2009, and quarterly financial statements for each of the quarters ended March 31, 2010, June 30, 2010 and September 30, 2010, together with all exhibits and schedules thereto (collectively, the “Insurance Company Statements”), with respect to each of the Company Subsidiaries set forth in Section 4.06(c) of the Company Disclosure Schedule (the “Insurance Company Subsidiaries”), in each case as filed with the Governmental Entity charged with supervision of such Insurance Company Subsidiary in its jurisdiction of domicile. The Insurance Company Statements were prepared in all material respects in conformity with accounting standards and accounting practices prescribed or permitted by the Governmental Entity charged with supervision the applicable Insurance Company Subsidiary in its jurisdiction of domicile (“Applicable Accounting Principles”) applied on a consistent basis, except as may have been noted therein and present fairly, in all material respects, to the extent required by and in conformity with Applicable Accounting Principles, the financial condition of such Company Insurance Subsidiary at the respective dates and the ~~absence~~ results of ~~footnotes)~~operations, changes in capital and surplus and cash flows of such Insurance Company Subsidiary for each of the periods then ended. (d) ~~As of March 31~~The Company and the Company Subsidiaries have no liabilities, ~~2007~~whether accrued, ~~neither Parent nor any of the Parent Subsidiaries had any liabilities~~ absolute, contingent or ~~obligations~~ otherwise that would ~~have been~~ be required ~~by GAAP~~ to be ~~reflected in the consolidated~~ disclosed on a balance sheet ~~of Parent and the Parent Subsidiaries as of such date~~prepared in accordance with GAAP, except liabilities (i) ~~for such liabilities and obligations reflected,~~ stated or reserved against ~~or otherwise disclosed~~ in the ~~consolidated balance sheet of Parent and the Parent Subsidiaries as of such date (including the notes thereto) that is included in the Parent SEC~~ Financial ~~Statements and~~ Statements, (ii) ~~for such liabilities~~ incurred in the ordinary course of business since December 31, 2009 or in connection with this Agreement or the Merger or in connection with the exploration of strategic alternatives announced by the Company on October 25, 2010 (including fees and ~~obligations as would not be reasonably expected to have~~expenses of advisors of the Company or the Special Committee), none of which would, individually or in the aggregate, reasonably be likely to result in a ~~Parent~~ Company Material Adverse ~~Effect~~ Effect, (it iii) under any Contract to which the Company or any Company Subsidiary is ~~understood and agreed~~ a party or by which any of them or their respective assets or properties are bound or (iv) that would not, individually or in the ~~representations and warranties contained~~ aggregate, reasonably be likely to result in ~~this Section 5.5(d):~~ a Company Material Adverse Effect. There are no unconsolidated Subsidiaries of the Company or any off-balance sheet arrangements of any type (xincluding any off-balance sheet arrangement required to be disclosed pursuant to Item 303(a)(4) do of Regulation S-K promulgated under the Securities Act) that have not ~~apply to matters~~ been so described in the Company SEC Documents nor any obligations to enter into any such arrangements. As of Section 5.4, the other provisions of this Section 5.5, and Sections 5.7, 5.8, 5.9, 5.10, 5.11 and 5.17 (which are addressed exclusively in those Sections) and (y) shall not be deemed breached if such breach relates to a matter which is covered by a representation or warranty of Parent and Merger Sub contained in this Article V (other than this Section 5.5(d)) that contains a “Parent’s Knowledge” qualification). (e) Since December 31, ~~2006 to~~ 2010, the date of this Agreement, (i) neither Parent nor any Parent Subsidiary nor, to Parent’s Knowledge, any director, officer, auditor, accountant or representative of Parent or any of the Parent Subsidiaries has received any written complaint, allegation, assertion or claim that Parent or any of the Parent Subsidiaries has engaged in improper or illegal accounting or auditing practices or maintains improper or inadequate internal accounting controls relating to Parent Company and the ~~Parent~~ Company Subsidiaries, ~~taken as~~ on a ~~whole~~consolidated basis, ~~(ii) no attorney representing Parent or any Parent Subsidiary has made a report to Parent’s chief legal officer, chief executive officer or Board~~ had unrestricted cash and cash equivalents of ~~Directors (or any committee thereof) pursuant to the SEC’s Standards~~ approximately $47.8 million and outstanding Indebtedness of Professional Conduct for Attorneys (17 CFR Part 205), and (iii) Parent has disclosed to its outside auditors any fraud, whether or not material, of which there is Parent’s Knowledge that involves management or other employees who have a significant role in Parent’s internal control over financial reportingapproximately $0.9 million.

Appears in 2 contracts

Sources: Merger Agreement (Pre Paid Legal Services Inc), Merger Agreement (Pre Paid Legal Services Inc)

SEC Documents; Financial Statements; Undisclosed Liabilities. (ai) ~~Parent~~ Telaria has filed or furnished all required registration statements, prospectuses, reports, schedules, ~~forms~~ forms, statements, certifications and ~~registration statements~~ other documents (including exhibits and all other information incorporated therein, regardless of when such exhibits and other information were filed) with the SEC ~~required to be filed by it pursuant to the Securities Act and the Securities Act Rules, or the Exchange Act and the Exchange Act Rules, in each such case~~ since January 1, ~~2005~~ 2017 (~~collectively, and in each case including all annexes and schedules thereto and documents incorporated by reference therein,~~ the “~~Parent~~ Telaria SEC Documents”). As of their respective ~~dates (or if subsequently amended or superseded by a filing prior to the date of this Agreement, on the date of such filing)~~dates, the ~~Parent~~ Telaria SEC Documents complied ~~as to form~~ in all material respects with the requirements of the Securities Act or of 1933, as amended (the “Securities Act”), the Exchange Act and the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002, as amended (the “▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act”), as the case may be, and the rules and regulations of the SEC promulgated thereunder applicable to ~~such Parent~~ the Telaria SEC Documents, and none of the ~~Parent~~ Telaria SEC Documents ~~as of such dates~~ when filed and at their respective effective times, if applicable, contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading. ~~To Parent’s Knowledge, as~~ As of the date ~~hereof~~of this Agreement, there are no outstanding or unresolved comments received from the SEC with respect to any of the Telaria SEC Documents, and, to the Knowledge of Telaria, none of the ~~Parent~~ Telaria SEC Documents is the subject of ~~ongoing~~ any outstanding SEC ~~review~~comment or investigation. No Subsidiary of Telaria is, or has at any time since January 1, 2017 been, required to file reports with the SEC pursuant to the requirements of the Exchange Act. (bii) ~~Parent is~~ The consolidated financial statements (including all related notes and schedules) of Telaria and its Subsidiaries included in ~~compliance with~~the Telaria SEC Documents (the “Telaria Financial Statements”) were prepared in accordance with United States generally accepted accounting principles (“GAAP”) (except, in the case of unaudited statements, as permitted by the SEC) applied on a consistent basis during the periods involved (except as may be indicated in the notes thereto) and ~~has complied,~~ fairly present in all material respects ~~with (i)~~ the ~~applicable provisions~~ consolidated financial position of Telaria and its consolidated Subsidiaries as of the ~~▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002~~ dates thereof and the ~~related rules~~ consolidated results of their operations and ~~regulations promulgated thereunder~~cash flows for the periods then ended (subject, in the case of unaudited statements, to normal year-end audit adjustments which are not material and to any other adjustments described therein, including the notes thereto). Since December 31, 2016, no independent public accounting firm of Telaria has resigned (or informed Telaria that it intends to resign) or been dismissed as independent public accountants of Telaria as a result of or in connection with any disagreements with Telaria on a matter of accounting principles or practices, financial statement disclosure or auditing scope or procedure. (iii) Except (A) as reflected or reserved against in Telaria’s unaudited balance sheet as of September 30, 2019 (or the notes thereto) included in Telaria’s Quarterly Report on Form 10-Q filed with the SEC on November 6, 2019, (B) for liabilities and obligations incurred in the ordinary course of business consistent with past practice since September 30, 2019 and (iiC) for liabilities and obligations incurred in connection with or contemplated by this Agreement, neither Telaria nor any of its Subsidiaries has any liabilities or obligations of any nature (whether accrued, absolute, contingent or otherwise) that would be required by GAAP to be reflected on a consolidated balance sheet of Telaria and its Subsidiaries (or in the ~~applicable listing~~ notes thereto) that, individually and ~~corporate governance rules and regulations~~ in the aggregate, would reasonably be expected to have a Material Adverse Effect on Telaria. (iv) Telaria maintains a system of ~~NASDAQ. Parent has established and maintains disclosure controls and procedures and~~ “internal control over financial ~~reporting~~ reporting” (as ~~such terms are~~ defined in ~~paragraphs (e~~Rules 13a-15(f) and ~~(f), respectively,~~ 15d-15(f) of ~~Rule 13a-15 under~~ the Exchange Act) sufficient to provide reasonable assurance (A) that transactions are recorded as ~~required by Rule 13a-15 under~~ necessary to permit preparation of financial statements in conformity with GAAP, consistently applied, (B) that transactions are executed only in accordance with the authorization of management and (C) regarding prevention or timely detection of the unauthorized acquisition, use or disposition of Telaria’s properties or assets. Since January 1, 2017, none of Telaria, Telaria’s independent accountants, the Board of Directors of Telaria or its audit committee has received any oral or written notification of any (1) “significant deficiency” in the internal controls over financial reporting of Telaria, (2) “material weakness” in the internal controls over financial reporting of Telaria or (3) fraud, whether or not material, that involves management or other employees of Telaria who have a significant role in the internal controls over financial reporting of Telaria. (v) The “disclosure controls and procedures” (as defined in Rules 13a-15(e) and 15d-15(e) of the Exchange Act~~. Parent’s disclosure controls and procedures~~ ) utilized by Telaria are reasonably designed to ensure that all ~~material~~ information (both financial and non-financial) required to be disclosed by ~~Parent~~ Telaria in the reports that it files or ~~furnishes~~ submits under the Exchange Act is recorded, processed, summarized and reported within the time periods specified in the rules and forms of the ~~SEC,~~ SEC and that all such ~~material~~ information required to be disclosed is accumulated and communicated to the management of ~~Parent~~ Telaria, as ~~appropriate~~ appropriate, to allow timely decisions regarding required disclosure and to enable the chief executive officer and chief financial officer of Telaria to make the certifications required ~~pursuant to Sections 302 and 906 of~~ under the ~~▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act. The management of Parent has completed its assessment of the effectiveness of Parent’s internal control over financial reporting in compliance~~ Exchange Act with the requirements of Section 404 of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act for the year ended December 31, 2006, and such assessment concluded that such controls were effective to provide reasonable assurance regarding the reliability of Parent’s financial reporting and the preparation of Parent’s financial statements for external purposes in accordance with GAAP. Parent has disclosed, based on its assessment of the effectiveness of Parent’s internal control over financial reporting in compliance with the requirements of Section 404 of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act for the year ended December 31, 2006, to Parent’s independent registered accounting firm and the audit committee of the Board of Directors of Parent (A) any significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect Parent’s ability to record, process, summarize and report financial information and (B) any fraud, whether or not material, of which there is Parent’s Knowledge that involves management or other employees who have a significant role in Parent’s internal control over financial reporting for the year ended December 31, 2006. Parent any has made available to the Company a summary of any such disclosures made by management respect to such ~~accounting firm or audit committee for the year ended December 31, 2006~~reports. (cvi) ~~The consolidated financial statements~~ Neither Telaria nor any of ~~Parent included~~ its Subsidiaries is a party to, or has any commitment to become a party to, any joint venture, off-balance sheet partnership or any similar contract (including any contract or arrangement relating to any transaction or relationship between or among Telaria and any of its Subsidiaries, on the one hand, and any unconsolidated Affiliate, including any structured finance, special purpose or limited purpose entity or Person, on the other hand, or any “off-balance sheet arrangements” (as defined in ~~the Parent SEC Documents (the “Parent SEC Financial Statements”~~Item 303(a) ~~(i) have been prepared in accordance with GAAP (except as may be otherwise indicated therein or in the notes thereto and except, in the case~~ of ~~unaudited consolidated quarterly statements, as permitted by Form 10~~Regulation S-~~Q of~~ K under the Exchange Act)), ~~applied on a consistent basis during~~ where the periods involved, (ii) complied in all material respects with published rules and regulations of the SEC with respect thereto, and (iii) fairly present in all material respects the consolidated financial position of Parent and its consolidated Parent Subsidiaries as of the respective dates thereof and the consolidated statements of income, cash flows and changes in stockholders’ equity for the respective periods then ended (subject, in the case of unaudited quarterly statements, to normal year-end audit adjustments and the absence of footnotes). (d) As of March 31, 2007, neither Parent nor any of the Parent Subsidiaries had any liabilities purpose or ~~obligations that would have been required by GAAP to be reflected in the consolidated balance sheet of Parent and the Parent Subsidiaries as~~ intended effect of such ~~date~~contract is to avoid disclosure of any material transaction involving, ~~except (i) for such~~ or material liabilities ~~and obligations reflected~~of, reserved against or otherwise disclosed in the consolidated balance sheet of Parent and the Parent Subsidiaries as of such date (including the notes thereto) that is included in the Parent SEC Financial Statements and (ii) for such liabilities and obligations as would not be reasonably expected to have, individually or in the aggregate, a Parent Material Adverse Effect (it is understood and agreed that the representations and warranties contained in this Section 5.5(d): (x) do not apply to matters described in any of Section 5.4, the other provisions of this Section 5.5, and Sections 5.7, 5.8, 5.9, 5.10, 5.11 and 5.17 (which are addressed exclusively in those Sections) and (y) shall not be deemed breached if such breach relates to a matter which is covered by a representation or warranty of Parent and Merger Sub contained in this Article V (other than this Section 5.5(d)) that contains a “Parent’s Knowledge” qualification). (e) Since December 31, 2006 to the date of this Agreement, (i) neither Parent nor any Parent Subsidiary nor, to Parent’s Knowledge, any director, officer, auditor, accountant or representative of Parent Telaria or any of ~~the Parent~~ its Subsidiaries ~~has received any written complaint, allegation, assertion~~ in Telaria’s or claim that Parent or any of the Parent Subsidiaries has engaged in improper or illegal accounting or auditing practices or maintains improper or inadequate internal accounting controls relating to Parent and the Parent Subsidiaries, taken as a whole, (ii) no attorney representing Parent or any Parent Subsidiary has made a report to Parentsuch Subsidiary’s chief legal officer, chief executive officer or Board of Directors (or any committee thereof) pursuant to the SEC’s Standards of Professional Conduct for Attorneys (17 CFR Part 205), and (iii) Parent has disclosed to its outside auditors any fraud, whether or not material, of which there is Parent’s Knowledge that involves management published financial statements or other ~~employees who have a significant role in Parent’s internal control over financial reporting~~Telaria SEC Documents.

Appears in 2 contracts

Sources: Merger Agreement (Rubicon Project, Inc.), Merger Agreement (Telaria, Inc.)

SEC Documents; Financial Statements; Undisclosed Liabilities. (ai) ~~Parent has~~ MWV and its subsidiaries have filed or furnished all required registration statements, prospectuses, reports, schedules, ~~forms~~ forms, statements, certifications and ~~registration statements~~ other documents (including exhibits and all other information incorporated therein) with the SEC ~~required to be filed by it pursuant to the Securities Act and the Securities Act Rules, or the Exchange Act and the Exchange Act Rules, in each such case~~ since January 1, ~~2005~~ 2012 (~~collectively, and in each case including all annexes and schedules thereto and documents incorporated by reference therein,~~ the “~~Parent~~ MWV SEC Documents”). As of their respective ~~dates (or if subsequently amended or superseded by a filing prior to the date of this Agreement, on the date of such filing)~~dates, the ~~Parent~~ MWV SEC Documents complied ~~as to form~~ in all material respects with the requirements of the Securities Act or of 1933, as amended (the “Securities Act”), the Exchange Act and the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002, as amended (the “▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act”), as the case may be, and the rules and regulations of the SEC promulgated thereunder applicable to ~~such Parent~~ the MWV SEC Documents, and none of the ~~Parent~~ MWV SEC Documents ~~as of such dates~~ when filed and at their respective effective times, if applicable, contained any untrue statement of a material fact or omitted 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 were made, not misleading. ~~To Parent’s Knowledge, as~~ As of the date hereof, there are no outstanding or unresolved comments received from the SEC with respect to any of the MWV SEC Documents, and, to the knowledge of MWV, none of the ~~Parent~~ MWV SEC Documents is the subject of ~~ongoing~~ any outstanding SEC ~~review~~comment or outstanding SEC investigation. (bii) ~~Parent is~~ The consolidated financial statements (including all related notes and schedules) of MWV and its subsidiaries included in ~~compliance with, and has complied,~~ the MWV SEC Documents (the “MWV Financial Statements”) were prepared in all material respects in accordance with generally accepted accounting principles (i“GAAP”) (except, in the ~~applicable provisions~~ case of unaudited statements, as permitted by the SEC) applied on a consistent basis during the periods involved (except as may be indicated in the notes thereto) and fairly present in all material respects the consolidated financial position of MWV and its consolidated subsidiaries as of the ~~▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002~~ dates thereof and the ~~related rules~~ consolidated results of their operations and ~~regulations promulgated thereunder~~cash flows for the periods then ended (subject, in the case of unaudited statements, to normal year-end audit adjustments which are not material and to any other adjustments described therein, including the notes thereto). (iii) Except (A) as reflected or reserved against in MWV’s consolidated audited balance sheet as of December 31, 2013 (or the notes thereto) as included in the MWV Filed SEC Documents, (B) for liabilities and obligations incurred in the ordinary course of business consistent with past practice since December 31, 2013 and (iiC) for liabilities and obligations incurred in connection with or contemplated by this Agreement, neither MWV nor any of its subsidiaries has any liabilities or obligations of any nature (whether accrued, absolute, contingent or otherwise) that would be required by GAAP to be reflected on a consolidated balance sheet of MWV and its subsidiaries (or in the ~~applicable listing and corporate governance rules and regulations~~ notes thereto) that, individually or in the aggregate, would reasonably be expected to have a Material Adverse Effect on MWV. (iv) MWV maintains a system of ~~NASDAQ. Parent has established and maintains disclosure controls and procedures and~~ “internal control over financial ~~reporting~~ reporting” (as ~~such terms are~~ defined in ~~paragraphs (e~~Rules 13a-15(f) and ~~(f), respectively,~~ 15d-15(f) of ~~Rule 13a-15 under~~ the Exchange Act) sufficient to provide reasonable assurance (i) that transactions are recorded as ~~required by Rule 13a-15 under~~ necessary to permit preparation of financial statements in conformity with GAAP, consistently applied, (ii) that transactions are executed only in accordance with the authorization of management and (iii) regarding prevention or timely detection of the unauthorized acquisition, use or disposition of MWV’s properties or assets. Since January 1, 2012, none of MWV, MWV’s independent accountants, the Board of Directors of MWV or its audit committee has received any oral or written notification of any (i) “significant deficiency” in the internal controls over financial reporting of MWV, (ii) “material weakness” in the internal controls over financial reporting of MWV or (iii) fraud, whether or not material, that involves management or other employees of MWV who have a significant role in the internal controls over financial reporting of MWV. (v) The “disclosure controls and procedures” (as defined in Rules 13a-15(e) and 15d-15(e) of the Exchange Act~~. Parent’s disclosure controls and procedures~~ ) utilized by MWV are reasonably designed to ensure that all ~~material~~ information (both financial and non-financial) required to be disclosed by ~~Parent~~ MWV in the reports that it files or ~~furnishes~~ submits under the Exchange Act is recorded, processed, summarized and reported within the time periods specified in the rules and forms of the ~~SEC,~~ SEC and that all such ~~material~~ information required to be disclosed is accumulated and communicated to the management of ~~Parent~~ MWV, as ~~appropriate~~ appropriate, to allow timely decisions regarding required disclosure and to enable the chief executive officer and chief financial officer of MWV to make the certifications required ~~pursuant to Sections 302 and 906 of~~ under the ~~▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act. The management of Parent has completed its assessment of the effectiveness of Parent’s internal control over financial reporting in compliance~~ Exchange Act with the requirements of Section 404 of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act for the year ended December 31, 2006, and such assessment concluded that such controls were effective to provide reasonable assurance regarding the reliability of Parent’s financial reporting and the preparation of Parent’s financial statements for external purposes in accordance with GAAP. Parent has disclosed, based on its assessment of the effectiveness of Parent’s internal control over financial reporting in compliance with the requirements of Section 404 of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act for the year ended December 31, 2006, to Parent’s independent registered accounting firm and the audit committee of the Board of Directors of Parent (A) any significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect Parent’s ability to record, process, summarize and report financial information and (B) any fraud, whether or not material, of which there is Parent’s Knowledge that involves management or other employees who have a significant role in Parent’s internal control over financial reporting for the year ended December 31, 2006. Parent any has made available to the Company a summary of any such disclosures made by management respect to such ~~accounting firm or audit committee for the year ended December 31, 2006~~reports. (cvi) ~~The consolidated financial statements~~ Neither MWV nor any of ~~Parent included~~ its subsidiaries is a party to, or has any commitment to become a party to, any joint venture, off-balance sheet partnership or any similar contract (including any contract or arrangement relating to any transaction or relationship between or among MWV and any of its subsidiaries, on the one hand, and any unconsolidated affiliate, including any structured finance, special purpose or limited purpose entity or person, on the other hand, or any “off-balance sheet arrangements” (as defined in ~~the Parent SEC Documents (the “Parent SEC Financial Statements”~~Item 303(a) ~~(i) have been prepared in accordance with GAAP (except as may be otherwise indicated therein or in the notes thereto and except, in the case~~ of ~~unaudited consolidated quarterly statements, as permitted by Form 10~~Regulation S-~~Q of~~ K under the Exchange Act)), ~~applied on a consistent basis during~~ where the ~~periods involved~~result, (ii) complied in all material respects with published rules and regulations of the SEC with respect thereto, and (iii) fairly present in all material respects the consolidated financial position of Parent and its consolidated Parent Subsidiaries as of the respective dates thereof and the consolidated statements of income, cash flows and changes in stockholders’ equity for the respective periods then ended (subject, in the case of unaudited quarterly statements, to normal year-end audit adjustments and the absence of footnotes). (d) As of March 31, 2007, neither Parent nor any of the Parent Subsidiaries had any liabilities purpose or ~~obligations that would have been required by GAAP to be reflected in the consolidated balance sheet of Parent and the Parent Subsidiaries as~~ intended effect of such ~~date~~contract is to avoid disclosure of any material transaction involving, ~~except (i) for such~~ or material liabilities ~~and obligations reflected~~of, reserved against or otherwise disclosed in the consolidated balance sheet of Parent and the Parent Subsidiaries as of such date (including the notes thereto) that is included in the Parent SEC Financial Statements and (ii) for such liabilities and obligations as would not be reasonably expected to have, individually or in the aggregate, a Parent Material Adverse Effect (it is understood and agreed that the representations and warranties contained in this Section 5.5(d): (x) do not apply to matters described in any of Section 5.4, the other provisions of this Section 5.5, and Sections 5.7, 5.8, 5.9, 5.10, 5.11 and 5.17 (which are addressed exclusively in those Sections) and (y) shall not be deemed breached if such breach relates to a matter which is covered by a representation or warranty of Parent and Merger Sub contained in this Article V (other than this Section 5.5(d)) that contains a “Parent’s Knowledge” qualification). (e) Since December 31, 2006 to the date of this Agreement, (i) neither Parent nor any Parent Subsidiary nor, to Parent’s Knowledge, any director, officer, auditor, accountant or representative of Parent MWV or any of ~~the Parent Subsidiaries has received any written complaint, allegation, assertion~~ its subsidiaries in MWV’s or claim that Parent or any of the Parent Subsidiaries has engaged in improper or illegal accounting or auditing practices or maintains improper or inadequate internal accounting controls relating to Parent and the Parent Subsidiaries, taken as a whole, (ii) no attorney representing Parent or any Parent Subsidiary has made a report to Parentsuch subsidiary’s chief legal officer, chief executive officer or Board of Directors (or any committee thereof) pursuant to the SEC’s Standards of Professional Conduct for Attorneys (17 CFR Part 205), and (iii) Parent has disclosed to its outside auditors any fraud, whether or not material, of which there is Parent’s Knowledge that involves management published financial statements or other ~~employees who have a significant role in Parent’s internal control over financial reporting~~MWV SEC Documents.

Appears in 2 contracts

Sources: Business Combination Agreement (MEADWESTVACO Corp), Business Combination Agreement (Rock-Tenn CO)

SEC Documents; Financial Statements; Undisclosed Liabilities. (a) ~~Parent has~~ The ▇▇▇▇▇▇ Partnerships that are required to file reports with the SEC pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), are identified on Schedule 4.5(a) of the Seller Disclosure Letter (collectively, the "Public ▇▇▇▇▇▇ Partnerships"), and have filed all required reports, schedules, ~~forms~~ forms, statements and ~~registration statements~~ other documents with the SEC ~~required to be filed by it pursuant to the Securities Act and the Securities Act Rules, or the Exchange Act and the Exchange Act Rules, in each such case~~ since January 1, ~~2005~~ 1996 (collectively, including any such reports filed in the period subsequent to the date hereof but prior to the Closing Date, and ~~in each case including all annexes and schedules thereto and documents incorporated by reference therein~~as amended, the ~~“Parent~~ "Seller SEC Documents”," and the financial statements of the Public ▇▇▇▇▇▇ Partnerships included in the Seller SEC Documents, the "Public ▇▇▇▇▇▇ Partnership Statements"). As All of the Seller SEC Documents (other than preliminary material), as of their respective ~~dates~~ filing dates, complied (~~or if subsequently amended or superseded by a filing~~ or, in the case of any Seller SEC Documents filed in the period subsequent to the date hereof but prior to the ~~date~~ Closing Date, will comply as of ~~this Agreement, on the date of such filing), the Parent SEC Documents complied as to form~~ their respective filing dates) in all material respects with ~~the~~ all applicable requirements of the Securities Act or of 1933, as amended (the "Securities Act"), and the Exchange Act, ~~as the case may be~~and, ~~and~~ in each case, the rules and regulations ~~of the SEC~~ promulgated thereunder applicable to such ~~Parent~~ Seller SEC Documents~~, and none~~ . None of the ~~Parent~~ Seller SEC Documents as at the time of ~~such dates~~ filing contained (or, in the case of any Seller SEC Documents filed in the period subsequent to the date hereof but prior to the Closing Date, will contain at the time of filing) any untrue statement of a material fact or at the time of filing omitted (or, in the case of any Seller SEC Documents filed in the period subsequent to the date hereof but prior to the Closing Date, will omit at the time of filing) to state a any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading~~. To Parent’s Knowledge, as of the date hereof, none of the Parent SEC Documents is the subject of ongoing SEC review~~. (b) ~~Parent is in compliance with, and has complied, in all material respects with (i) the applicable provisions~~ Each of the Private ▇▇▇▇▇~~▇▇▇-▇▇▇▇~~▇ ~~Act of 2002 and the related rules and regulations promulgated thereunder, and (ii) the applicable listing and corporate governance rules and regulations of NASDAQ. Parent~~ Partnerships has established and maintains disclosure controls and procedures and internal control over financial reporting (as such terms are defined in paragraphs (e) and (f), respectively, of Rule 13a-15 under the Exchange Act) as required by Rule 13a-15 under the Exchange Act. Parent’s disclosure controls and procedures are reasonably designed to ensure that all material information required to be disclosed by Parent in the reports that it files or furnishes under the Exchange Act is recorded, processed, summarized and reported within the time periods specified in the rules and forms of the SEC, and that all such material information is accumulated and communicated made available to the ~~management~~ Company copies of ~~Parent~~ its unaudited balance sheets as ~~appropriate to allow timely decisions regarding required disclosure~~ of March 31, 1999 and ~~to make~~ December 31, 1998 and its related unaudited statements of operations and cash flows for the ~~certifications required pursuant to Sections 302~~ three-month period ended March 31, 1999 and 906 of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act. The management of Parent has completed its assessment of the effectiveness of Parent’s internal control over financial reporting in compliance with the requirements of Section 404 of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act for the year ended December 31, ~~2006~~1998 (such financial statements, and such assessment concluded that such controls were effective to provide reasonable assurance regarding the reliability of Parent’s financial reporting and the preparation of Parent’s financial statements for external purposes in accordance with GAAP. Parent has disclosed, based on its assessment of the effectiveness of Parent’s internal control over financial reporting in compliance collectively with the ~~requirements of Section 404 of the~~ Public ▇▇▇▇▇▇ Partnership Statements, the "▇~~▇▇-~~▇▇▇▇▇ ~~Act~~ Partnership Statements"). In addition: Regency North has made available to the Company copies of the audited balance sheet as of December 31, 1998 and the related audited statements of operations and cash flows for the year ended December 31, ~~2006~~1998 for Regency North Apartments Limited Partnership, a Subsidiary Partnership of Regency North; Hearth Hollow has made available to ~~Parent’s independent registered accounting firm~~ the Company copies of the audited balance sheet as of December 31, 1998 and the ~~audit committee~~ related audited statements of ~~the Board of Directors of Parent (A) any significant deficiencies~~ operations and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect Parent’s ability to record, process, summarize and report financial information and (B) any fraud, whether or not material, of which there is Parent’s Knowledge that involves management or other employees who have a significant role in Parent’s internal control over financial reporting cash flows for the year ended December 31, ~~2006. Parent any~~ 1998 for Hearth Hollow Apartments Limited Partnership, a Subsidiary Partnership of Hearth Hollow; and Midwest Properties has made available to the Company ~~a summary~~ copies of ~~any such disclosures made by management to such accounting firm or audit committee~~ its audited balance sheet as of December 31, 1998 and its audited statements of operations and cash flows for the year ended December 31, ~~2006~~1998 and copies of the audited balance sheets as of December 31, 1998 and the related audited statements of operations and cash flows for the year ended December 31, 1998 for each of Cedarwood Hills Associates and East Bay Village Apartments Limited Partnership, each of which is a Subsidiary Partnership of Midwest Properties (all such financial statements described in this sentence, the "Subsidiary Financial Statements"). McREMI has made available to the Company copies of its unaudited balance sheet as of March 31, 1999 and its audited balance sheet as of December 31, 1998, and its related unaudited statements of operations and cash flows for the three-month period ended March 31, 1999 and its related audited statements of operations and cash flows for the year ended December 31, 1998. MII and MPLP have made available to the Company copies of their unaudited consolidated balance sheet as of March 31, 1999 and their audited consolidated balance sheet as of December 31, 1998, and their related unaudited consolidated statements of operations and cash flows for the three-month period ended March 31 1999 and their related audited consolidated statements of operations and cash flows for the year ended December 31, 1998. The financial statements of McREMI and the consolidated financial statements of MII and MPLP made available to the Company in accordance with this paragraph (b), together with the ▇▇▇▇▇▇ Partnership Statements, are referred to in this Agreement as the "Seller Statements." (c) The ~~consolidated financial statements of Parent included in the Parent SEC Documents~~ Public ▇▇▇▇▇▇ Partnership Statements complied (~~the “Parent SEC Financial Statements”) (i) have been prepared in accordance with GAAP (except as may be otherwise indicated therein or in the notes thereto and except~~or, in the case of ~~unaudited consolidated quarterly statements~~Public ▇▇▇▇▇▇ Partnership Statements contained in any Seller SEC Documents filed in the period subsequent to the date hereof but prior to the Closing Date, will comply) as ~~permitted by Form 10-Q of the Exchange Act), applied on a consistent basis during the periods involved, (ii) complied~~ to form in all material respects with the published rules and regulations of the SEC with respect ~~thereto~~thereto in effect at the time of such filing, and the audited Seller Statements have been prepared (~~iii~~or, in the case of any Seller Statements prepared for any period subsequent to the date hereof but prior to the Closing Date, will be prepared) in accordance with GAAP in effect at the time of such preparation applied on a consistent basis during the periods involved (except as may be indicated in the notes thereto). Each of the Seller Statements fairly ~~present~~ presented (or, in the case of any Seller Statements for such Seller prepared for any period subsequent to the date hereof but prior to the Closing Date, will fairly present) in all material respects the ~~consolidated~~ financial position of ~~Parent~~ the applicable Seller (and its consolidated ~~Parent Subsidiaries~~ subsidiaries, if applicable) for which such Seller Statements were prepared as of the ~~respective dates~~ date thereof and fairly presented (or, in the ~~consolidated statements~~ case of ~~income~~any Seller Statements for such Seller prepared for any period subsequent to the date hereof but prior to the Closing Date, will fairly present) in all material respects the results of operations, cash flows and changes in ~~stockholders’ equity~~ financial position of such Seller or the consolidated results of operations, cash flows and changes in financial position of the applicable Seller or Seller Subsidiary for which such Seller Statements were prepared for the ~~respective periods~~ period then ended (subject, in the case of unaudited ~~quarterly~~ statements, to normal year-end audit ~~adjustments and the absence of footnotes~~adjustments). (d) As of March 31, 2007, neither Parent nor any of the Parent Subsidiaries had any liabilities or obligations that would have been required by GAAP to be reflected in the consolidated balance sheet of Parent and the Parent Subsidiaries as of such date, except (i) Except for ~~such~~ liabilities and obligations ~~reflected, reserved against or otherwise disclosed~~ set forth in the ~~consolidated balance sheet of Parent and~~ Seller SEC Documents filed prior to the ~~Parent Subsidiaries as of such~~ date hereof, in the Seller Statements (including the notes thereto) ~~that is~~ made available to the Company or contained in Seller SEC Documents filed prior to the date hereof or in the Subsidiary Financial Statements (including the notes thereto) or on Schedule 4.5(d) of the Seller Disclosure Letter and except for liabilities and obligations incurred in the ordinary course since the respective dates of the balance sheets included in the ~~Parent~~ Seller Statements made available to the Company or contained in Seller SEC ~~Financial~~ Documents filed prior to the date hereof, there are no liabilities or obligations of the Seller (or its consolidated subsidiaries, if applicable) in respect of which such Seller Statement was prepared of any nature (whether accrued, absolute, contingent or otherwise) required by GAAP to be set forth on the respective balance sheets of such Seller (and its consolidated subsidiaries, if applicable) included in the Seller Statements made available to the Company or contained in the Seller SEC Documents filed prior to the date hereof or in the notes thereto and ~~(ii) for such liabilities and obligations as would not be reasonably expected to have~~which, individually or in the aggregate, would have a ~~Parent~~ Seller Material Adverse Effect ~~(it is understood~~ or prevent the consummation by Sellers of the transactions contemplated by this Agreement and ~~agreed that the representations and warranties contained in this Section 5.5(d): (x) do not apply to matters described in any of Section 5.4,~~ the other ~~provisions of this Section 5.5, and Sections 5.7, 5.8, 5.9, 5.10, 5.11 and 5.17 (~~Transaction Documents to which Sellers are addressed exclusively in those Sections) and (y) shall not be deemed breached if such breach relates to a matter which is covered by a representation or warranty of Parent and Merger Sub contained in this Article V (other than this Section 5.5(d)) that contains a “Parent’s Knowledge” qualification)parties. (e) Since December 31, 2006 to the date of this Agreement, (i) neither Parent nor any Parent Subsidiary nor, to Parent’s Knowledge, any director, officer, auditor, accountant or representative of Parent or any of the Parent Subsidiaries has received any written complaint, allegation, assertion or claim that Parent or any of the Parent Subsidiaries has engaged in improper or illegal accounting or auditing practices or maintains improper or inadequate internal accounting controls relating to Parent and the Parent Subsidiaries, taken as a whole, (ii) no attorney representing Parent or any Parent Subsidiary has made a report to Parent’s chief legal officer, chief executive officer or Board of Directors (or any committee thereof) pursuant to the SEC’s Standards of Professional Conduct for Attorneys (17 CFR Part 205), and (iii) Parent has disclosed to its outside auditors any fraud, whether or not material, of which there is Parent’s Knowledge that involves management or other employees who have a significant role in Parent’s internal control over financial reporting.

Appears in 2 contracts

Sources: Master Agreement (Goldman Sachs Group Inc), Master Agreement (Goldman Sachs Group Inc)

SEC Documents; Financial Statements; Undisclosed Liabilities. (a) ~~Parent~~ The Company has filed or furnished on a timely basis all reports, schedules, ~~forms~~ forms, statements, registration statements, prospectuses and ~~registration statements with the SEC~~ other documents required to be filed or furnished by ~~it pursuant to~~ the Company with the SEC under the Securities Act ~~and the Securities Act Rules,~~ or the Exchange Act ~~and the Exchange Act Rules, in each such case~~ since January 1, ~~2005~~ 2020, together with all certifications required pursuant to the S▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002, as amended (the “S▇▇▇▇▇▇▇-▇▇▇▇▇ Act”) (such documents and any other documents filed or furnished by the Company with the SEC, as they have been supplemented, modified or amended since the time of filing, collectively~~, and in each case including all annexes and schedules thereto and documents incorporated by reference therein~~, the “~~Parent~~ Company SEC Documents”). None of the Subsidiaries of the Company is required to make any filings with the SEC or is subject to the reporting requirements of Section 13(a) or 15(d) of the Exchange Act. (b) As of ~~their~~ its respective ~~dates~~ filing date (or or, if ~~subsequently~~ amended or superseded ~~by a filing~~ prior to the date of this Agreement, on the date of the last such filing~~), the Parent~~ ) each Company SEC ~~Documents~~ Document complied ~~as to form~~ in all material respects with the requirements of the ~~Securities~~ Exchange Act or the ~~Exchange~~ Securities Act, as the case may be, and the rules and regulations of the SEC promulgated thereunder applicable to such ~~Parent~~ Company SEC ~~Documents,~~ Document and ~~none of the Parent SEC Documents as of such dates contained~~ did not contain any untrue statement of a material fact or ~~omitted~~ omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, in each case when filed or furnished, or with respect to any proxy statement filed pursuant to the Exchange Act, on the date of the applicable meeting. ~~To Parent’s Knowledge, as~~ As of the date ~~hereof~~of this Agreement, ~~none of~~ there are no outstanding or unresolved comments received from the ~~Parent~~ SEC with respect to any Company SEC Documents. There has been no material correspondence between the SEC and the Company since January 1, 2020 that is not set forth in the Company SEC Documents is or that has not otherwise been disclosed to Parent prior to the ~~subject of ongoing SEC review~~date hereof. (bc) ~~Parent is~~ The consolidated financial statements of the Company included in ~~compliance with~~the Company SEC Documents (including, ~~and has complied~~in each case, any notes or schedules thereto) (the “Company SEC Financial Statements”) (i) complied as to form in all material respects with ~~(i)~~ the applicable ~~provisions of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002~~ accounting requirements and the ~~related rules and regulations promulgated thereunder, and (ii) the applicable listing and corporate governance~~ published rules and regulations of ~~NASDAQ. Parent has established~~ the SEC with respect thereto in effect at the time of such filing, (ii) fairly present, in all material respects, the financial condition and ~~maintains disclosure controls~~ the results of operations, cash flows and ~~procedures~~ changes in stockholders’ equity of the Company and ~~internal control over financial reporting~~ its Subsidiaries (on a consolidated basis) as of the respective dates of and for the periods referred to in the Company SEC Financial Statements, and (iii) were prepared in accordance with GAAP (as in effect in the United States on the date of such ~~terms~~ Company SEC Financial Statement) as applied by the Company on a consistent basis throughout the periods covered thereby (except as may be indicated in the notes thereto or, in the case of unaudited statements, as permitted by Form 10-Q of the SEC), subject, in the case of interim Company SEC Financial Statements, to normal year-end adjustments that are not material in amount or nature and the absence of notes. None of the Company or its Subsidiaries is a party to, or has any obligation or other commitment to become a party to, any “off balance sheet arrangement” (as defined in ~~paragraphs~~ Item 303(a) of Regulation S-K promulgated by the SEC). (ed) The Company has filed or furnished all certifications and statements required by (~~f), respectively, of~~ i) Rule ~~13a-15~~ 13a-14 or Rule 15d-14 under the Exchange Act; or (ii) as required by Rule 13a-15 under the Exchange Act. Parent’s disclosure controls and procedures are reasonably designed to ensure that all material information required to be disclosed by Parent in the reports that it files or furnishes under the Exchange Act is recorded, processed, summarized and reported within the time periods specified in the rules and forms of the SEC, and that all such material information is accumulated and communicated to the management of Parent as appropriate to allow timely decisions regarding required disclosure and to make the certifications required pursuant to Sections 302 and 18 U.S.C. Section 1350 (Section 906 of the ▇S▇▇▇▇▇▇▇-▇▇▇▇▇ Act) with respect to all applicable Company SEC Documents. The ~~management of Parent has completed~~ Company maintains disclosure controls and procedures required and as defined by Rule 13a-15 or Rule 15d-15 under the Exchange Act, which such controls and procedures are reasonably designed to ensure that all material information concerning the Company and its ~~assessment~~ Subsidiaries is made known on a timely basis to the individuals responsible for the preparation of the ~~effectiveness~~ Company SEC Documents. (e) The Company has designed and maintains a system of ~~Parent’s~~ disclosure controls and procedures and internal control over financial reporting (as defined in ~~compliance with the requirements of Section 404~~ Rules 13a-15(f) and 15d-15(f) of the ~~▇▇▇▇▇▇▇▇-▇▇▇▇▇~~ Exchange Act) as required by Rule 13a-15 under the Exchange Act ~~for the year ended December 31, 2006,~~ and ~~such assessment concluded that such controls were effective~~ sufficient in all material respects to provide reasonable ~~assurance~~ assurances regarding the reliability of ~~Parent’s~~ financial reporting for the Company and ~~the preparation of Parent’s financial statements~~ its Subsidiaries for external purposes in accordance with GAAP. ~~Parent has disclosed, based~~ Except as described on ~~its assessment~~ Section 3.5(e) of the effectiveness of Parent’s internal control over financial reporting in compliance with the requirements of Section 404 of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act for the year ended December 31Company Disclosure Schedule, ~~2006, to Parent’s independent registered accounting firm and the audit committee of the Board of Directors of Parent (A) any significant deficiencies and~~ there were no material weaknesses or significant deficiencies, identified in ~~the design or operation~~ management’s assessment of internal control over financial reporting ~~which are reasonably likely to adversely affect Parent’s ability to record~~as of and for the years ended December 31, ~~process, summarize~~ 2021 and ~~report financial information and~~ 2022 (Bnor has any such weakness or additional deficiency been identified as of the date hereof) or any fraud, whether or not material, ~~of which there is Parent’s Knowledge~~ that involves the management or other employees of the Company or any of its Subsidiaries who have a significant role in ~~Parent~~the Company’s internal control over financial ~~reporting for~~ reporting. None of the ~~year ended December 31~~Company, ~~2006. Parent~~ any ~~has made available~~ of its Subsidiaries or, to the Company a summary of any such disclosures made by management to such accounting firm or audit committee for the year ended December 31, 2006. (c) The consolidated financial statements of Parent included in the Parent SEC Documents (the “Parent SEC Financial Statements”) (i) have been prepared in accordance with GAAP (except as may be otherwise indicated therein or in the notes thereto and except, in the case of unaudited consolidated quarterly statements, as permitted by Form 10-Q Knowledge of the Exchange Act), applied on a consistent basis during the periods involved, (ii) complied in all material respects with published rules and regulations of the SEC with respect thereto, and (iii) fairly present in all material respects the consolidated financial position of Parent and its consolidated Parent Subsidiaries as of the respective dates thereof and the consolidated statements of income, cash flows and changes in stockholders’ equity for the respective periods then ended (subject, in the case of unaudited quarterly statements, to normal year-end audit adjustments and the absence of footnotes). (d) As of March 31, 2007, neither Parent nor any of the Parent Subsidiaries had any liabilities or obligations that would have been required by GAAP to be reflected in the consolidated balance sheet of Parent and the Parent Subsidiaries as of such date, except (i) for such liabilities and obligations reflected, reserved against or otherwise disclosed in the consolidated balance sheet of Parent and the Parent Subsidiaries as of such date (including the notes thereto) that is included in the Parent SEC Financial Statements and (ii) for such liabilities and obligations as would not be reasonably expected to have, individually or in the aggregate, a Parent Material Adverse Effect (it is understood and agreed that the representations and warranties contained in this Section 5.5(d): (x) do not apply to matters described in any of Section 5.4, the other provisions of this Section 5.5, and Sections 5.7, 5.8, 5.9, 5.10, 5.11 and 5.17 (which are addressed exclusively in those Sections) and (y) shall not be deemed breached if such breach relates to a matter which is covered by a representation or warranty of Parent and Merger Sub contained in this Article V (other than this Section 5.5(d)) that contains a “Parent’s Knowledge” qualification). (e) Since December 31, 2006 to the date of this Agreement, (i) neither Parent nor any Parent Subsidiary nor, to Parent’s KnowledgeCompany, any director, officer, employee, auditor, ~~accountant~~ accountant, attorney representing the Company or ~~representative~~ other Representative of ~~Parent~~ the Company or any of ~~the Parent Subsidiaries~~ its Subsidiaries, has received or made any written material complaint, allegation, assertion or claim, regarding the accounting or auditing practices, procedures, methodologies or methods of the Company or any of its Subsidiaries or their respective internal accounting controls, including any written material complaint, allegation, assertion or claim that ~~Parent~~ the Company or any of ~~the Parent~~ its Subsidiaries has engaged in improper ~~or illegal~~ accounting or auditing ~~practices~~ practices. (f) The Company and its Subsidiaries do not have any liabilities or ~~maintains improper~~ obligations of any nature (whether absolute or ~~inadequate internal accounting controls relating~~ contingent, asserted or unasserted, known or unknown, primary or secondary, direct or indirect, and whether or not accrued), required by GAAP to ~~Parent and~~ be reflected or reserved on a consolidated balance sheet of the ~~Parent Subsidiaries~~Company (or the notes thereto) except (i) as disclosed, ~~taken as a whole~~reflected or adequately reserved against in the most recent balance sheet included in the Company SEC Financial Statements or the notes thereto, (ii) ~~no attorney representing Parent or any Parent Subsidiary has made a report to Parent’s chief legal officer~~for liabilities and obligations incurred in the ordinary course of business since the date of the most recent balance sheet included in the Company SEC Financial Statements, ~~chief executive officer or Board of Directors~~ (~~or any committee thereof~~iii) for liabilities and obligations incurred pursuant to the ~~SEC’s Standards~~ Transactions, (iv) for liabilities incurred that have been discharged or paid in full prior to the date of ~~Professional Conduct~~ this Agreement and (v) for ~~Attorneys (17 CFR Part 205)~~liabilities and obligations that, individually or in the aggregate, have not been, and ~~(iii) Parent has disclosed~~ would not reasonably be expected to ~~its outside auditors any fraud, whether or not material, of which there is Parent’s Knowledge that involves management or other employees who~~ have a ~~significant role in Parent’s internal control over financial reporting~~Company Material Adverse Effect.

Appears in 2 contracts

Sources: Merger Agreement (Patriot Transportation Holding, Inc.), Merger Agreement (Patriot Transportation Holding, Inc.)

SEC Documents; Financial Statements; Undisclosed Liabilities. (a) Parent has filed or furnished all reports, schedules, ~~forms~~ forms, statements, registration statements, prospectuses and ~~registration statements with the SEC~~ other documents (including exhibits and other information incorporated therein) required to be filed or furnished by ~~it pursuant to~~ Parent with the SEC under the Securities Act ~~and the Securities Act Rules,~~ or the Exchange Act ~~and the Exchange Act Rules, in each such case~~ since January 1, ~~2005~~ 2013 (~~collectively~~such documents, together with any documents filed or furnished during such period, by Parent to the SEC on a voluntary basis, in each case, as have been amended since the time of their filing or furnishing, and ~~in each case~~ including all ~~annexes and schedules thereto and documents incorporated by reference therein~~exhibits thereto, the “Parent SEC Documents”). No Parent Subsidiary is, or has at any time since January 1, 2014, been, subject to the periodic reporting requirements of the Exchange Act or is or has been otherwise required to file any form, report, statement, schedule, certificate or other document with the SEC. (b) As of ~~their~~ its respective ~~dates (or~~ date, or, if ~~subsequently~~ amended ~~or superseded by a filing~~ prior to the date hereof, as of ~~this Agreement, on~~ the date of the last such ~~filing)~~amendment, each of the Parent SEC Documents complied ~~as to form~~ when filed or furnished (or, if applicable, when amended) in all material respects with the requirements of the Securities ~~Act or~~ Act, the Exchange Act and the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act, as in each case to the ~~case may be, and the rules and regulations of the SEC promulgated thereunder~~ extent applicable to such Parent SEC Documents, and none of the Parent SEC Documents as when filed or furnished (or in the case of ~~such dates~~ a registration statement under the Securities Act, at the time it was declared effective) contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not ~~misleading. To Parent’s Knowledge~~misleading (and no Parent SEC Document that is a registration statement, as amended or supplemented, if applicable, filed pursuant to the Securities Act, as of the date ~~hereof~~such registration statement or amendment became effective, ~~none~~ contained any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary to make the statements therein not misleading). (c) The consolidated financial statements of Parent included in the Parent SEC Documents is (including, in each case, any notes or schedules thereto) and all related compilations, reviews and other reports issued by Parent’s accountants with respect thereto (the “Parent SEC Financial Statements”), have been derived from the accounting books and records of Parent and the Parent Subsidiaries and (i) were prepared in accordance with GAAP applied on a consistent basis during the periods involved (except as may be indicated in the notes thereto and except, in the case of the unaudited interim statements, as may be permitted by Form 10-Q and Regulation S-X of the SEC) and (ii) fairly present, in all material respects, the consolidated financial position of Parent and the Parent Subsidiaries, as at the respective dates thereof, and the consolidated results of their operations, and, where included, their consolidated stockholders’ equity and their consolidated cash flows for the respective periods indicated (subject, in the case of the unaudited statements, to normal year-end audit adjustments and the absence of notes or with respect to pro forma information, subject to the qualifications stated therein). Except as required by GAAP and disclosed in the Parent SEC Documents, between January 1, 2014 and the date of ~~ongoing SEC review~~this Agreement, Parent has not made or adopted any material change in its accounting methods, practices or policies. (bd) Parent is in compliance ~~with, and has complied,~~ in all material respects with (i) the applicable provisions of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act ~~of 2002 and the related rules and regulations promulgated thereunder,~~ and (ii) the applicable listing and corporate governance rules and regulations of ~~NASDAQ~~the NYSE. (e) As of the date hereof, there are no material outstanding or unresolved comments in comment letters received from the SEC staff with respect to any Parent SEC Documents and none of the Parent SEC Documents is, to the Knowledge of Parent, the subject of ongoing SEC review. There are no formal internal investigations, any SEC inquiries or investigations or other inquiries or investigations by Governmental Entities that, to the Knowledge of Parent, are pending or threatened, in each case regarding any accounting practices of Parent or any Parent Subsidiary. (f) Parent has ~~established~~ designed and ~~maintains~~ maintained disclosure controls and procedures and internal control over financial reporting (as such terms are defined in ~~paragraphs (e) and (f), respectively, of~~ Rule 13a-15 and Rule 15d-15 under the Exchange Act) as required by ~~Rule~~ Rules 13a-15 and 15d-15 under the Exchange Act. Parent’s disclosure controls and procedures are ~~reasonably~~ designed to ensure that all ~~material~~ information (both financial and non-financial) required to be disclosed by Parent in the reports that it files or furnishes under the Exchange Act is recorded, processed, summarized and reported within the time periods specified in the rules and forms of the SEC, and that all such ~~material~~ information is accumulated and communicated to ~~the~~ Parent’s management ~~of Parent~~ as appropriate to allow timely decisions regarding required disclosure and to make the certifications required pursuant to Sections 302 and 906 of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act. ~~The~~ Parent’s management ~~of Parent~~ has completed ~~its~~ an assessment of the effectiveness of Parent’s ~~internal control over financial reporting~~ disclosure controls and procedures and, to the extent required by applicable Law, presented in ~~compliance with~~ any applicable Parent SEC Document that is a report on Form 10-K or Form 10-Q, or any amendment thereto, its conclusions about the ~~requirements of Section 404~~ effectiveness of the ~~▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act for~~ disclosure controls and procedures as of the ~~year ended December 31, 2006, and~~ end of the period covered by such ~~assessment concluded that~~ report or amendment based on such ~~controls were effective to provide reasonable assurance regarding the reliability of~~ evaluation. Based on Parent’s ~~financial reporting and the preparation of Parent~~management’s ~~financial statements for external purposes in accordance with GAAP. Parent has disclosed, based on its assessment of the effectiveness~~ most recently completed evaluation of Parent’s internal ~~control~~ controls over financial ~~reporting in compliance with the requirements~~ reporting, Parent has no Knowledge of Section 404 of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act for the year ended December 31, 2006, to Parent’s independent registered accounting firm and the audit committee of the Board of Directors of Parent (Ai) any significant deficiencies and material weaknesses in the design or operation of its internal ~~control~~ controls over financial reporting ~~which~~ that are reasonably likely to adversely affect in any material respect Parent’s ability to record, process, summarize and report financial information and (Bii) any fraud, whether or not material, ~~of which there is Parent’s Knowledge~~ that involves management or other employees who have a significant role in Parent’s internal ~~control~~ controls over financial ~~reporting for the year ended December 31~~reporting. Since January 1, ~~2006. Parent any has made available~~ 2014, to the ~~Company a summary~~ Knowledge of Parent as of the date hereof, Parent has not received any ~~such disclosures made by management to such~~ material complaints from any source regarding accounting, internal accounting ~~firm~~ controls or ~~audit committee for the year ended December 31, 2006~~auditing matters. (cg) ~~The consolidated financial statements~~ Parent and the Parent Subsidiaries do not have any liabilities or obligations of any nature (whether absolute or contingent, asserted or unasserted, known or unknown, primary or secondary, direct or indirect, and whether or not accrued), except (i) those that, individually or in the aggregate, have not had and would not reasonably be expected to have a Parent Material Adverse Effect, (ii) as reflected or reserved against in the most recent audited balance sheet included in the Parent SEC ~~Documents (the “Parent SEC~~ Financial ~~Statements”) (i) have been prepared~~ Statements or included in ~~accordance with GAAP (except as may be otherwise indicated therein~~ or in reasonably apparent from the notes ~~thereto~~ or management’s discussion and except, in the case of unaudited consolidated quarterly statements, as permitted by Form 10-Q of the Exchange Act), applied on a consistent basis during the periods involved, (ii) complied in all material respects with published rules and regulations of the SEC with respect analysis related thereto, ~~and~~ (iii) fairly present in all material respects the consolidated financial position of Parent and its consolidated Parent Subsidiaries as of the respective dates thereof and the consolidated statements of income, cash flows and changes in stockholders’ equity for the respective periods then ended (subject, in the case of unaudited quarterly statements, to normal year-end audit adjustments and the absence of footnotes). (d) As of March 31, 2007, neither Parent nor any of the Parent Subsidiaries had any liabilities or obligations that would have been required by GAAP to be reflected in the consolidated balance sheet of Parent and the Parent Subsidiaries as of such date, except (i) for such liabilities and obligations ~~reflected, reserved against or otherwise disclosed~~ incurred in the ~~consolidated~~ ordinary course of business since the date of the most recent audited balance sheet ~~of Parent and the Parent Subsidiaries as of such date (including the notes thereto) that is~~ included in the Parent SEC Financial Statements and (iiiv) for ~~such~~ liabilities and obligations ~~as would not be reasonably expected to have, individually~~ arising out of or in connection with this Agreement or the aggregate, a Parent Material Adverse Effect (it is understood and agreed that the representations and warranties contained in this Section 5.5(d): (x) do not apply to matters described in any of Section 5.4, the other provisions of this Section 5.5, and Sections 5.7, 5.8, 5.9, 5.10, 5.11 and 5.17 (which are addressed exclusively in those Sections) and (y) shall not be deemed breached if such breach relates to a matter which is covered by a representation or warranty of Parent and Merger Sub contained in this Article V (other than this Section 5.5(d)) that contains a “Parent’s Knowledge” qualification). (e) Since December 31, 2006 to the date of this Agreement, (i) neither Mergers. Neither Parent nor any Parent Subsidiary ~~nor~~is a party to, or has any commitment to ~~Parent’s Knowledge~~become a party to, any ~~director~~joint venture, ~~officer, auditor, accountant~~ off-balance sheet partnership or ~~representative of~~ any similar Contract or arrangement (including any Contract or arrangement relating to any transaction or relationship between or among Parent or and any of the Parent ~~Subsidiaries has received~~ Subsidiaries, on the one hand, and any ~~written complaint~~unconsolidated Affiliate, ~~allegation~~including any structured finance, ~~assertion~~ special purpose or ~~claim that Parent~~ limited purpose entity or Person, on the other hand, or any material “off balance sheet arrangement” (as defined in Item 303(a) of Regulation S-K of the ~~Parent Subsidiaries has engaged in improper~~ Exchange Act)), where the purpose or ~~illegal accounting~~ intended effect of such Contract or ~~auditing practices~~ arrangement is to avoid disclosure of any material transaction involving, or ~~maintains improper or inadequate internal accounting controls relating to Parent and the Parent Subsidiaries~~material liabilities of, ~~taken as a whole, (ii) no attorney representing~~ Parent or any Parent Subsidiary in the Parent SEC Financial Statements or other Parent SEC Documents. (h) With respect to Parent Regulated Subsidiaries that produce statutory financial statements, Parent has previously delivered or made ~~a report to Parent’s chief legal officer, chief executive officer or Board of Directors (or any committee thereof) pursuant~~ available to the ~~SEC’s Standards~~ Company correct and complete copies of ~~Professional Conduct~~ the statutory financial statements of each such Parent Regulated Subsidiary, as filed with the applicable domestic regulators for ~~Attorneys~~ the year ended December 31, 2014, together with all exhibits, statements and schedules thereto (~~17 CFR Part 205~~together, the “Parent Subsidiary SAP Statements”), or such Parent Subsidiary SAP Statements are publicly available. The Parent Subsidiary SAP Statements were prepared from the books and records of the applicable Parent Regulated Subsidiary, fairly present, in all material respects, the respective statutory financial conditions of each of such Parent Regulated Subsidiaries at the respective dates thereof, and the statutory results of operations for the periods then ended in accordance with Applicable SAP applied on a consistent basis in all material respects throughout the periods indicated and consistent with each other, except as otherwise specifically noted therein. (~~iii~~i) With respect to Parent ~~has disclosed~~ Regulated Subsidiaries that do not produce statutory financial statements but do submit financial statements to ~~its outside auditors any fraud~~their respective domestic regulators, ~~whether or not material~~the financial statements of each such Parent Regulated Subsidiary, as filed with the applicable domestic regulators since January 1, 2014 and for each subsequent quarterly period, together with all exhibits and schedules thereto are referred to herein as the “Parent Subsidiary Statements”). The Parent Subsidiary Statements fairly present, in all material respects, the respective financial conditions of ~~which there is Parent’s Knowledge that involves management or other employees who have~~ each of such Parent Regulated Subsidiaries at the respective dates thereof, and the results of operations for the periods then ended in accordance with applicable accounting rules applied on a ~~significant role in Parent’s internal control over financial reporting~~consistent basis throughout the periods indicated and consistent with each other, except as otherwise specifically noted therein.

Appears in 2 contracts

Sources: Merger Agreement (Health Net Inc), Merger Agreement (Centene Corp)

SEC Documents; Financial Statements; Undisclosed Liabilities. (a) ~~Parent~~ The Company has filed or furnished all reports, schedules, ~~forms~~ forms, statements, registration statements, prospectuses and ~~registration statements with the SEC~~ other documents required to be filed or furnished by ~~it pursuant to~~ the Company with the SEC under the Securities Act ~~and the Securities Act Rules,~~ or the Exchange Act ~~and the Exchange Act Rules, in each such case~~ since January 1, ~~2005~~ 2022 (~~collectively, and in each case including all annexes and schedules thereto and documents incorporated by reference therein,~~ the “~~Parent~~ Company SEC Documents”). . (b) As of ~~their~~ its respective ~~dates~~ filing date (or or, if ~~subsequently amended~~ revised, amended, modified or superseded ~~by a filing~~ prior to the date of this Agreement, on the date of such filing), ~~the Parent~~ each Company SEC ~~Documents~~ Document complied as to form in all material respects with the applicable requirements of the Exchange Act, the Securities Act or the ~~Exchange~~ S▇▇▇▇▇▇▇-▇▇▇▇▇ Act, as the case may be, and the rules and regulations of the SEC promulgated thereunder applicable to such ~~Parent~~ Company SEC ~~Documents,~~ Document and ~~none of the Parent SEC Documents as of such dates contained~~ did not contain any untrue statement of a material fact or ~~omitted~~ omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading. ~~To Parent’s Knowledge, as~~ As of the date ~~hereof~~of this Agreement, ~~none~~ there are no outstanding or unresolved comments received from the SEC with respect to any Company SEC Document that would be required to be disclosed under Item 1B of Form 10-K under the ~~Parent SEC Documents is the subject of ongoing SEC review~~Exchange Act. (bc) ~~Parent is~~ The consolidated financial statements of the Company included in ~~compliance with~~the Company SEC Documents (including, ~~and has complied~~in each case, any notes or schedules thereto) (the “Company SEC Financial Statements”) fairly present, in all material ~~respects with (i)~~ respects, the ~~applicable provisions~~ financial condition and the results of operations, cash flows and changes in stockholders’ equity of the ~~▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act~~ Company as of ~~2002~~ the respective dates of and for the ~~related rules and regulations promulgated thereunder~~periods referred to in the Company SEC Financial Statements, and were prepared in accordance with GAAP as applied by the Company (~~ii)~~ except as may be indicated in the ~~applicable listing and corporate governance rules and regulations~~ notes thereto or, in the case of ~~NASDAQ. Parent has established and maintains disclosure controls and procedures and internal control over financial reporting (~~unaudited statements, as ~~such terms are defined in paragraphs (e) and (f), respectively, of Rule 13a-15~~ permitted by Form 10-Q under the Exchange Act), subject, in the case of interim Company SEC Financial Statements, to normal year-end adjustments and the absence of notes. (d) as The Company has timely filed all certifications and statements required by (i) Rule ~~13a-15~~ 13a-14 or Rule 15d-14 under the Exchange Act~~. Parent’s disclosure controls and procedures are reasonably designed to ensure that all material information required to be disclosed by Parent in the reports that it files~~ ; or furnishes under the Exchange Act is recorded, processed, summarized and reported within the time periods specified in the rules and forms of the SEC, and that all such material information is accumulated and communicated to the management of Parent as appropriate to allow timely decisions regarding required disclosure and to make the certifications required pursuant to Sections 302 and (ii) 18 U.S.C. Section 1350 (Section 906 of the ▇S▇▇▇▇▇▇▇-▇▇▇▇▇ Act) with respect to all applicable Company SEC Documents. The ~~management of Parent has completed its assessment~~ Company maintains disclosure controls and procedures required by Rule 13a-15 or Rule 15d-15 under the Exchange Act. Such disclosure controls and procedures are designed to provide reasonable assurances (i) that all material information concerning the Company required to be disclosed is made known on a timely basis to the individuals responsible for the preparation of the ~~effectiveness~~ Company SEC Documents and (ii) that transactions are recorded as necessary to permit the preparation of ~~Parent~~financial statements for external purposes in accordance with GAAP. Neither the Company nor, to the Knowledge of the Company, the Company’s independent registered public accounting firm, has identified or been made aware of any “significant deficiency” or “material weakness” (as defined by the Public Company Accounting Oversight Board) in the design or operation of its internal control over financial reporting which would reasonably be expected to adversely affect in any material respect the Company’s ability to record, process, summarize and report financial information, in each case, which has not been subsequently remediated and to the Knowledge of the Company, there is no fraud, whether or not material, that involves management or any other employee who has (or has had) a significant role in the Company’s internal control over financial reporting. There were no significant deficiencies or material weaknesses identified in management’s assessment of internal control over financial reporting ~~in compliance with~~ as of and for the ~~requirements~~ fiscal year ended March 31, 2024 (nor has any such deficiency or weakness been identified as of the date hereof). The Company has no outstanding, and has not arranged any outstanding, “extension of credit” to any director or executive officer within the meaning of Section ~~404~~ 402 of the ▇S▇▇▇▇▇▇▇-▇▇▇▇▇ Act for the year ended December 31, 2006, and such assessment concluded that such controls were effective to provide reasonable assurance regarding the reliability of Parent’s financial reporting and the preparation of Parent’s financial statements for external purposes in accordance with GAAP. Parent has disclosed, based on its assessment of the effectiveness of Parent’s internal control over financial reporting in compliance with the requirements of Section 404 of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act for the year ended December 31, 2006, to Parent’s independent registered accounting firm and the audit committee of the Board of Directors of Parent (A) any significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect Parent’s ability to record, process, summarize and report financial information and (B) any fraud, whether or not material, of which there is Parent’s Knowledge that involves management or other employees who have a significant role in Parent’s internal control over financial reporting for the year ended December 31, 2006. Parent any has made available to the Company a summary of any such disclosures made by management to such accounting firm or audit committee for the year ended December 31, 2006Act. (ce) The ~~consolidated financial statements of Parent included in the Parent SEC Documents (the “Parent SEC Financial Statements”) (i)~~ Company do not have been prepared in accordance with GAAP (except as may be otherwise indicated therein or in the notes thereto and except, in the case of unaudited consolidated quarterly statements, as permitted by Form 10-Q of the Exchange Act), applied on a consistent basis during the periods involved, (ii) complied in all material respects with published rules and regulations of the SEC with respect thereto, and (iii) fairly present in all material respects the consolidated financial position of Parent and its consolidated Parent Subsidiaries as of the respective dates thereof and the consolidated statements of income, cash flows and changes in stockholders’ equity for the respective periods then ended (subject, in the case of unaudited quarterly statements, to normal year-end audit adjustments and the absence of footnotes). (d) As of March 31, 2007, neither Parent nor any of the Parent Subsidiaries had any liabilities or obligations ~~that would have been~~ of any nature (whether absolute or contingent, asserted or unasserted, known or unknown, primary or secondary, direct or indirect, and whether or not accrued), required by GAAP to be reflected ~~in the~~ or reserved on a consolidated balance sheet of ~~Parent and~~ the ~~Parent Subsidiaries as of such date,~~ Company (or the notes thereto) except (i) ~~for such liabilities and obligations reflected~~as disclosed, reflected or reserved against ~~or otherwise disclosed~~ in the ~~consolidated~~ most recent balance sheet ~~of Parent and~~ included in the ~~Parent Subsidiaries as of such date (including~~ Company SEC Financial Statements or the notes thereto~~) that is included in the Parent SEC Financial Statements and~~ , (ii) for ~~such~~ liabilities and obligations ~~as would not be reasonably expected to have~~incurred in the ordinary course of business since the date of the most recent balance sheet included in the Company SEC Financial Statements, (iii) for liabilities and obligations arising out of or in connection with this Agreement, the Merger or the Transactions and (iv) for liabilities and obligations that, individually or in the aggregate, have not had, and would not reasonably be expected to have, a ~~Parent~~ Company Material Adverse Effect (it is understood and agreed that the representations and warranties contained in this Section 5.5(d): (x) do not apply to matters described in any of Section 5.4, the other provisions of this Section 5.5, and Sections 5.7, 5.8, 5.9, 5.10, 5.11 and 5.17 (which are addressed exclusively in those Sections) and (y) shall not be deemed breached if such breach relates to a matter which is covered by a representation or warranty of Parent and Merger Sub contained in this Article V (other than this Section 5.5(d)) that contains a “Parent’s Knowledge” qualification)Effect. (e) Since December 31, 2006 to the date of this Agreement, (i) neither Parent nor any Parent Subsidiary nor, to Parent’s Knowledge, any director, officer, auditor, accountant or representative of Parent or any of the Parent Subsidiaries has received any written complaint, allegation, assertion or claim that Parent or any of the Parent Subsidiaries has engaged in improper or illegal accounting or auditing practices or maintains improper or inadequate internal accounting controls relating to Parent and the Parent Subsidiaries, taken as a whole, (ii) no attorney representing Parent or any Parent Subsidiary has made a report to Parent’s chief legal officer, chief executive officer or Board of Directors (or any committee thereof) pursuant to the SEC’s Standards of Professional Conduct for Attorneys (17 CFR Part 205), and (iii) Parent has disclosed to its outside auditors any fraud, whether or not material, of which there is Parent’s Knowledge that involves management or other employees who have a significant role in Parent’s internal control over financial reporting.

Appears in 2 contracts

Sources: Merger Agreement (Iteris, Inc.), Merger Agreement (Iteris, Inc.)

SEC Documents; Financial Statements; Undisclosed Liabilities. (a) ~~Parent~~ The Company has filed all reports, schedules, ~~forms~~ forms, statements and ~~registration statements with the SEC~~ other documents (including exhibits and other information incorporated therein) required to be filed by ~~it pursuant to~~ the ~~Securities Act and~~ Company with the ~~Securities Act Rules~~SEC since October 17, or 2001 (the Exchange Act and the Exchange Act Rules, in each such case since January 1, 2005 (collectively, and in each case including all annexes and schedules thereto and documents incorporated by reference therein, the “Parent "SEC Documents”)") in a timely manner. As of their respective dates (or or, if ~~subsequently~~ amended or ~~superseded~~ superceded by a subsequent filing made prior to the date ~~of this Agreement~~hereof, on the date of such subsequent filing), each of the ~~Parent~~ SEC Documents complied ~~as to form~~ in all material respects with the requirements of the Securities Act or the Exchange Act, as the case may be, and the rules and regulations of the SEC promulgated thereunder applicable to such ~~Parent~~ SEC Documents, and none of the ~~Parent~~ SEC Documents ~~as of such dates~~ at the time they were filed contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading~~. To Parent’s Knowledge, as of the date hereof, none of the Parent SEC Documents is the subject of ongoing SEC review~~. (b) ~~Parent is~~ The financial statements (including, in ~~compliance with~~each case, ~~and has complied,~~ any related notes thereto) of the Company included in the SEC Documents comply as to form in all material respects with ~~(i) the~~ applicable ~~provisions of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002~~ accounting requirements and the ~~related rules and regulations promulgated thereunder, and (ii) the applicable listing and corporate governance~~ published rules and regulations of ~~NASDAQ. Parent has established and maintains disclosure controls and procedures and internal control over financial reporting (as such terms are defined in paragraphs (e) and (f)~~the SEC with respect thereto, respectively, of Rule 13a-15 under the Exchange Act) as required by Rule 13a-15 under the Exchange Act. Parent’s disclosure controls and procedures are reasonably designed to ensure that all material information required to be disclosed by Parent in the reports that it files or furnishes under the Exchange Act is recorded, processed, summarized and reported within the time periods specified in the rules and forms of the SEC, and that all such material information is accumulated and communicated to the management of Parent as appropriate to allow timely decisions regarding required disclosure and to make the certifications required pursuant to Sections 302 and 906 of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act. The management of Parent has completed its assessment of the effectiveness of Parent’s internal control over financial reporting in compliance with the requirements of Section 404 of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act for the year ended December 31, 2006, and such assessment concluded that such controls were effective to provide reasonable assurance regarding the reliability of Parent’s financial reporting and the preparation of Parent’s financial statements for external purposes in accordance with GAAP. Parent has disclosed, based on its assessment of the effectiveness of Parent’s internal control over financial reporting in compliance with the requirements of Section 404 of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act for the year ended December 31, 2006, to Parent’s independent registered accounting firm and the audit committee of the Board of Directors of Parent (A) any significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect Parent’s ability to record, process, summarize and report financial information and (B) any fraud, whether or not material, of which there is Parent’s Knowledge that involves management or other employees who have a significant role in Parent’s internal control over financial reporting for the year ended December 31, 2006. Parent any has made available to the Company a summary of any such disclosures made by management to such accounting firm or audit committee for the year ended December 31, 2006. (c) The consolidated financial statements of Parent included in the Parent SEC Documents (the “Parent SEC Financial Statements”) (i) have been prepared in accordance with GAAP applied on a consistent basis during the periods involved (except as may be ~~otherwise~~ indicated ~~therein or~~ in the notes thereto and except, in the case of the unaudited ~~consolidated quarterly~~ interim statements, as may be permitted by under Form 10-Q of the Exchange Act~~), applied on a consistent basis during the periods involved, (ii~~) ~~complied in all material respects with published rules~~ and ~~regulations of the SEC with respect thereto, and (iii)~~ fairly present in all material respects the consolidated financial position of ~~Parent~~ the Company and its consolidated ~~Parent~~ Subsidiaries as of the ~~respective~~ dates thereof and the consolidated ~~statements~~ results of ~~income,~~ their operations and cash flows ~~and changes in stockholders’ equity~~ for the ~~respective~~ periods then ended (subject, in the case of unaudited ~~quarterly~~ statements, to normal year-end audit ~~adjustments and the absence of footnotes~~adjustments). (dc) As The Company and the Company Subsidiaries have no liabilities of ~~March 31~~any nature, ~~2007~~whether accrued, ~~neither Parent nor any of the Parent Subsidiaries had any liabilities~~ absolute, contingent or ~~obligations that would have been~~ otherwise, and whether or not required ~~by GAAP~~ to be ~~reflected in the consolidated~~ disclosed on a balance sheet ~~of Parent and the Parent Subsidiaries as of such date~~prepared in accordance with GAAP, except liabilities (i) ~~for such liabilities and obligations reflected, reserved against or otherwise~~ disclosed in the ~~consolidated balance sheet~~ SEC Documents filed prior to the date of ~~Parent and~~ this Agreement (the ~~Parent Subsidiaries as~~ "Filed SEC Documents"), including liabilities stated or reserved against in the financial statements of ~~such date (including~~ the Company or in the notes ~~thereto) that is~~ thereto included in the ~~Parent~~ Filed SEC ~~Financial Statements and~~ Documents, (ii) relating to any obligations remaining to be performed by the Company or any Company Subsidiary in accordance with the terms of any agreement to which the Company or any Company Subsidiary is a party (other than liabilities for ~~such liabilities~~ Product warranty obligations thereunder), (iii) incurred in the ordinary and ~~obligations as~~ usual course of business consistent with past practice since September 30, 2003 or (iv) that would ~~not be reasonably expected to have~~not, individually or in the aggregate, a Parent Material Adverse Effect (it is understood and agreed that the representations and warranties contained in this Section 5.5(d): (x) do not apply to matters described in any of Section 5.4, the other provisions of this Section 5.5, and Sections 5.7, 5.8, 5.9, 5.10, 5.11 and 5.17 (which are addressed exclusively in those Sections) and (y) shall not be deemed breached if such breach relates to a matter which is covered by a representation or warranty of Parent and Merger Sub contained in this Article V (other than this Section 5.5(d)) that contains a “Parent’s Knowledge” qualification). (e) Since December 31, 2006 material to the date of this Agreement, (i) neither Parent nor any Parent Subsidiary nor, to Parent’s Knowledge, any director, officer, auditor, accountant or representative of Parent or any of the Parent Subsidiaries has received any written complaint, allegation, assertion or claim that Parent or any of the Parent Subsidiaries has engaged in improper or illegal accounting or auditing practices or maintains improper or inadequate internal accounting controls relating to Parent Company and the ~~Parent~~ Company Subsidiaries, taken as a whole, (ii) no attorney representing Parent or any Parent Subsidiary has made a report to Parent’s chief legal officer, chief executive officer or Board of Directors (or any committee thereof) pursuant to the SEC’s Standards of Professional Conduct for Attorneys (17 CFR Part 205), and (iii) Parent has disclosed to its outside auditors any fraud, whether or not material, of which there is Parent’s Knowledge that involves management or other employees who have a significant role in Parent’s internal control over financial reporting.

Appears in 2 contracts

Sources: Merger Agreement (Therasense Inc), Merger Agreement (Therasense Inc)

SEC Documents; Financial Statements; Undisclosed Liabilities. (a) Parent has timely filed or furnished all required registration statements, prospectuses, reports, schedules, ~~forms~~ forms, statements, certifications and ~~registration statements~~ other documents (including exhibits and all other information incorporated therein, regardless of when such exhibits and other information were filed) with the SEC ~~required to be filed by it pursuant to the Securities Act and the Securities Act Rules, or the Exchange Act and the Exchange Act Rules, in each such case~~ since January 1, ~~2005~~ 2022 (~~collectively, and in each case including all annexes and schedules thereto and documents incorporated by reference therein,~~ the “Parent SEC Documents”). As of their respective ~~dates (or if subsequently amended or superseded by a filing prior to the date of this Agreement, on the date of such filing)~~dates, the Parent SEC Documents complied ~~as to form~~ in all material respects with the requirements of the Securities ~~Act or~~ Act, the Exchange Act and the Sarbanes-Oxley Act, as the case may be, and the rules and regulations of the SEC promulgated thereunder applicable to ~~such~~ the Parent SEC Documents, and none of the Parent SEC Documents ~~as of such dates~~ when filed and at their respective effective times, if applicable, contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading. ~~To Parent’s Knowledge, as~~ As of the date ~~hereof~~of this Agreement, there are no outstanding or unresolved comments received from the SEC with respect to any of the Parent SEC Documents, and, to the Knowledge of Parent, none of the Parent SEC Documents is the subject of ~~ongoing~~ any outstanding SEC ~~review~~investigation. No Subsidiary of Parent is required to file reports with the SEC pursuant to the requirements of the Exchange Act. (b) The consolidated financial statements (including all related notes and schedules) of Parent is and its Subsidiaries included in ~~compliance with, and has complied,~~ the Parent SEC Documents were prepared in all material respects in accordance with GAAP (iexcept, in the case of unaudited statements, as permitted by the SEC) applied on a consistent basis during the ~~applicable provisions~~ periods involved (except as may be indicated in the notes thereto) and fairly present in all material respects the consolidated financial position of Parent and its consolidated Subsidiaries as of the ~~▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002~~ dates thereof and the ~~related rules~~ consolidated results of their operations and ~~regulations promulgated thereunder~~cash flows for the periods then ended (subject, in the case of unaudited statements, to normal year-end audit adjustments which are not material and to any other adjustments described therein, including the notes thereto). Since January 1, 2022, there has been no material change in Parent’s accounting methods or principles that would be required to be disclosed in Parent’s financial statements in accordance with GAAP, except as described in the Parent Filed SEC Documents. (c) Except (A) as reflected or reserved against in Parent’s audited balance sheet as of December 31, 2024 (or the notes thereto) included in Parent’s Annual Report on Form 10-K filed with the SEC on March 3, 2025, (B) for liabilities and obligations incurred in the ordinary course of business consistent with past practice since December 31, 2024, and (iiC) for liabilities and obligations incurred in connection with or contemplated by this Agreement, neither Parent nor any of its Subsidiaries has any liabilities or obligations of any nature (whether accrued, absolute, contingent or otherwise) that would be required by GAAP to be reflected on a consolidated balance sheet of Parent and its Subsidiaries (or in the ~~applicable listing and corporate governance rules and regulations~~ notes thereto) that, individually or in the aggregate, would reasonably be expected to have a Material Adverse Effect on Parent. (d) Parent maintains a system of ~~NASDAQ. Parent has established and maintains disclosure controls and procedures and~~ “internal control over financial ~~reporting~~ reporting” (as ~~such terms are~~ defined in ~~paragraphs (e~~Rules 13a-15(f) and ~~(f), respectively,~~ 15d-15(f) of ~~Rule 13a-15 under~~ the Exchange Act) sufficient to provide reasonable assurance (A) that transactions are recorded as ~~required by Rule 13a-15 under~~ necessary to permit preparation of financial statements in conformity with GAAP, consistently applied, (B) that transactions are executed only in accordance with the authorization of management and (C) regarding prevention or timely detection of the unauthorized acquisition, use or disposition of Parent’s properties or assets. Since January 1, 2022, none of Parent, Parent’s independent accountants, the Board of Directors of Parent or its audit committee has identified or been made aware of any (1) “significant deficiency” in the internal controls over financial reporting of Parent, (2) “material weakness” in the internal controls over financial reporting of Parent, (3) fraud, whether or not material, that involves management or other employees of Parent who have a significant role in the internal controls over financial reporting of Parent or (4) any bona fide complaints regarding a material violation of accounting procedures, internal accounting controls or auditing matters, including from employees of Parent or any of its Subsidiaries regarding questionable accounting, auditing or legal compliance matters. (e) The “disclosure controls and procedures” (as defined in Rules 13a-15(e) and 15d-15(e) of the Exchange Act~~. Parent’s disclosure controls and procedures~~ ) utilized by Parent are reasonably designed to ensure that all ~~material~~ information (both financial and non-financial) required to be disclosed by Parent in the reports that it files or ~~furnishes~~ submits under the Exchange Act is recorded, processed, summarized and reported within the time periods specified in the rules and forms of the ~~SEC,~~ SEC and that all such ~~material~~ information required to be disclosed is accumulated and communicated to the management of ~~Parent~~ Parent, as ~~appropriate~~ appropriate, to allow timely decisions regarding required disclosure and to enable the chief executive officer and chief financial officer of Parent to make the certifications required ~~pursuant~~ under the Exchange Act with respect to such reports. (f) Neither Parent nor any of its Subsidiaries is a party to, or has any commitment to become a party to, any joint venture, off-balance sheet partnership or any similar contract (including any contract or arrangement relating to any transaction or relationship between or among Parent and any of its Subsidiaries, on the one hand, and any unconsolidated Affiliate, including any structured finance, special purpose or limited purpose entity or person, on the other hand, or any “off-balance sheet arrangements”), where the purpose or intended effect of such contract is to avoid disclosure of any material transaction involving, or material liabilities of, Parent or any of its Subsidiaries in Parent’s or such Subsidiary’s published financial statements or other Parent SEC Documents. (g) Since January 1, 2022, each of the principal executive officer and the principal financial officer of Parent (or each former principal executive officer and each former principal financial officer of Parent, as applicable) has made all certifications required by Rule 13a-14 or 15d-14 under the Exchange Act and Sections 302 and 906 of the ~~▇▇▇▇▇▇▇▇~~Sarbanes-~~▇▇▇▇▇ Act. The management of Parent has completed its assessment of the effectiveness of Parent’s internal control over financial reporting in compliance~~ Oxley Act with ~~the requirements of Section 404 of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act for the year ended December 31, 2006, and such assessment concluded that such controls were effective~~ respect to provide reasonable assurance regarding the reliability of Parent’s financial reporting and the preparation of Parent’s financial statements for external purposes in accordance with GAAP. Parent has disclosed, based on its assessment of the effectiveness of Parent’s internal control over financial reporting in compliance with the requirements of Section 404 of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act for the year ended December 31, 2006, to Parent’s independent registered accounting firm and the audit committee of the Board of Directors of Parent (A) any significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect Parent’s ability to record, process, summarize and report financial information and (B) any fraud, whether or not material, of which there is Parent’s Knowledge that involves management or other employees who have a significant role in Parent’s internal control over financial reporting for the year ended December 31, 2006. Parent any has made available to the Company a summary of any such disclosures made by management to such accounting firm or audit committee for the year ended December 31, 2006. (c) The consolidated financial statements of Parent included in the Parent SEC ~~Documents (~~Documents, and the ~~“Parent SEC Financial Statements”) (i) have been prepared~~ statements contained in ~~accordance with GAAP (except as may be otherwise indicated therein or in the notes thereto~~ such certifications are true and ~~except, in the case of unaudited consolidated quarterly statements, as permitted by Form 10-Q of the Exchange Act), applied on a consistent basis during the periods involved, (ii) complied~~ accurate in all material ~~respects~~ respects. Since January 1, 2022, Parent has been in material compliance with ~~published rules and regulations~~ all of the ~~SEC with respect thereto, and (iii) fairly present in all material respects the consolidated financial position of Parent and its consolidated Parent Subsidiaries as~~ other applicable provisions of the ~~respective dates thereof~~ Sarbanes-Oxley Act and the ~~consolidated statements~~ applicable listing and corporate governance rules of income, cash flows and changes in stockholders’ equity for the respective periods then ended (subject, in the case of unaudited quarterly statements, to normal year-end audit adjustments and the absence of footnotes)NASDAQ. (d) As of March 31, 2007, neither Parent nor any of the Parent Subsidiaries had any liabilities or obligations that would have been required by GAAP to be reflected in the consolidated balance sheet of Parent and the Parent Subsidiaries as of such date, except (i) for such liabilities and obligations reflected, reserved against or otherwise disclosed in the consolidated balance sheet of Parent and the Parent Subsidiaries as of such date (including the notes thereto) that is included in the Parent SEC Financial Statements and (ii) for such liabilities and obligations as would not be reasonably expected to have, individually or in the aggregate, a Parent Material Adverse Effect (it is understood and agreed that the representations and warranties contained in this Section 5.5(d): (x) do not apply to matters described in any of Section 5.4, the other provisions of this Section 5.5, and Sections 5.7, 5.8, 5.9, 5.10, 5.11 and 5.17 (which are addressed exclusively in those Sections) and (y) shall not be deemed breached if such breach relates to a matter which is covered by a representation or warranty of Parent and Merger Sub contained in this Article V (other than this Section 5.5(d)) that contains a “Parent’s Knowledge” qualification). (e) Since December 31, 2006 to the date of this Agreement, (i) neither Parent nor any Parent Subsidiary nor, to Parent’s Knowledge, any director, officer, auditor, accountant or representative of Parent or any of the Parent Subsidiaries has received any written complaint, allegation, assertion or claim that Parent or any of the Parent Subsidiaries has engaged in improper or illegal accounting or auditing practices or maintains improper or inadequate internal accounting controls relating to Parent and the Parent Subsidiaries, taken as a whole, (ii) no attorney representing Parent or any Parent Subsidiary has made a report to Parent’s chief legal officer, chief executive officer or Board of Directors (or any committee thereof) pursuant to the SEC’s Standards of Professional Conduct for Attorneys (17 CFR Part 205), and (iii) Parent has disclosed to its outside auditors any fraud, whether or not material, of which there is Parent’s Knowledge that involves management or other employees who have a significant role in Parent’s internal control over financial reporting.

Appears in 1 contract

Sources: Merger Agreement (Icad Inc)

SEC Documents; Financial Statements; Undisclosed Liabilities. (ai) Parent ~~has~~ and its subsidiaries have filed or furnished all required registration statements, prospectuses, reports, schedules, ~~forms~~ forms, statements, certifications and ~~registration statements~~ other documents (including exhibits and all other information incorporated therein) with the SEC ~~required to be filed by it pursuant to the Securities Act and the Securities Act Rules, or the Exchange Act and the Exchange Act Rules, in each such case~~ since January 1, ~~2005~~ 2017 (~~collectively, and in each case including all annexes and schedules thereto and documents incorporated by reference therein,~~ the “Parent SEC Documents”). As of their respective ~~dates (or if subsequently amended or superseded by a filing prior to the date of this Agreement, on the date of such filing)~~dates, the Parent SEC Documents complied as (or with respect to ~~form~~ Parent SEC Documents filed or furnished after the date hereof, will comply) in all material respects with the requirements of the Securities ~~Act or~~ Act, the Exchange Act and the S▇▇▇▇▇▇▇-▇▇▇▇▇ Act, as the case may be, and the rules and regulations of the SEC promulgated thereunder applicable to ~~such~~ the Parent SEC Documents, and none of the Parent SEC Documents ~~as of such dates~~ when filed and, if applicable, at their respective effective times contained (or with respect to Parent SEC Documents filed or furnished after the date hereof, will contain) any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading. ~~To Parent’s Knowledge, as~~ As of the date ~~hereof~~of this Agreement, there are no outstanding or unresolved comments received from the SEC with respect to any of the Parent SEC Documents, and, to the knowledge of Parent, none of the Parent SEC Documents is the subject of ~~ongoing~~ any outstanding SEC ~~review~~comment or outstanding SEC investigation. (bii) The consolidated financial statements (including all related notes and schedules) of Parent is and its subsidiaries included in ~~compliance with~~the Parent SEC Documents (the “Parent Financial Statements”) were prepared (or with respect to Parent Financial Statements included in Parent SEC Documents filed or furnished after the date hereof, ~~and has complied,~~ will be prepared) in all material respects in accordance with GAAP (iexcept, in the case of unaudited statements, as permitted by the SEC) applied on a consistent basis during the ~~applicable provisions~~ periods involved (except as may be indicated in the notes thereto) and fairly present in all material respects the consolidated financial position of Parent and its consolidated subsidiaries as of the ~~▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002~~ dates thereof and the ~~related rules~~ consolidated results of their operations and ~~regulations promulgated thereunder~~cash flows for the periods then ended (subject, in the case of unaudited statements, to normal year-end audit adjustments which are not material and to any other adjustments described therein, including the notes thereto). (iii) Except (A) as reflected or reserved against in Parent’s audited balance sheet as of December 31, 2019 (or the notes thereto) as included in the Parent Filed SEC Documents, (B) for liabilities and obligations incurred in the ordinary course of business consistent with past practice since December 31, 2019 and (iiC) for liabilities and obligations incurred in connection with or contemplated by this Agreement, neither Parent nor any of its subsidiaries has any liabilities or obligations of any nature (whether accrued, absolute, contingent or otherwise) that would be required by GAAP to be reflected on a consolidated balance sheet of Parent and its subsidiaries (or in the ~~applicable listing and corporate governance rules and regulations~~ notes thereto) that, individually or in the aggregate, would reasonably be expected to have a Material Adverse Effect on Parent. (iv) Parent maintains a system of ~~NASDAQ. Parent has established and maintains disclosure controls and procedures and~~ “internal control over financial ~~reporting~~ reporting” (as ~~such terms are~~ defined in ~~paragraphs (e~~Rules 13a-15(f) and ~~(f), respectively,~~ 15d-15(f) of ~~Rule 13a-15 under~~ the Exchange Act) sufficient to provide reasonable assurance (i) that transactions are recorded as ~~required by Rule 13a-15 under~~ necessary to permit preparation of financial statements in conformity with GAAP, consistently applied, (ii) that transactions are executed only in accordance with the authorization of management and (iii) regarding prevention or timely detection of the unauthorized acquisition, use or disposition of Parent’s properties or assets. Since January 1, 2017, none of Parent, Parent’s independent accountants, the Board of Directors of Parent or its audit committee has received any oral or written notification of any (i) “significant deficiency” in the internal controls over financial reporting of Parent, (ii) “material weakness” in the internal controls over financial reporting of Parent or (iii) fraud, whether or not material, that involves management or other employees of Parent who have a significant role in the internal controls over financial reporting of Parent. (v) The “disclosure controls and procedures” (as defined in Rules 13a-15(e) and 15d-15(e) of the Exchange Act~~. Parent’s disclosure controls and procedures~~ ) utilized by Parent are reasonably designed to ensure that all ~~material~~ information (both financial and non-financial) required to be disclosed by Parent in the reports that it files or ~~furnishes~~ submits under the Exchange Act is recorded, processed, summarized and reported within the time periods specified in the rules and forms of the ~~SEC,~~ SEC and that all such ~~material~~ information required to be disclosed is accumulated and communicated to the management of ~~Parent~~ Parent, as ~~appropriate~~ appropriate, to allow timely decisions regarding required disclosure and to enable the chief executive officer and chief financial officer of Parent to make the certifications required ~~pursuant to Sections 302 and 906 of~~ under the ~~▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act. The management of Parent has completed its assessment of the effectiveness of Parent’s internal control over financial reporting in compliance~~ Exchange Act with the requirements of Section 404 of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act for the year ended December 31, 2006, and such assessment concluded that such controls were effective to provide reasonable assurance regarding the reliability of Parent’s financial reporting and the preparation of Parent’s financial statements for external purposes in accordance with GAAP. Parent has disclosed, based on its assessment of the effectiveness of Parent’s internal control over financial reporting in compliance with the requirements of Section 404 of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act for the year ended December 31, 2006, to Parent’s independent registered accounting firm and the audit committee of the Board of Directors of Parent (A) any significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect Parent’s ability to record, process, summarize and report financial information and (B) any fraud, whether or not material, of which there is Parent’s Knowledge that involves management or other employees who have a significant role in Parent’s internal control over financial reporting for the year ended December 31, 2006. Parent any has made available to the Company a summary of any such disclosures made by management respect to such ~~accounting firm or audit committee for the year ended December 31, 2006~~reports. (cvi) ~~The consolidated financial statements~~ Neither Parent nor any of its subsidiaries is a party to, or has any commitment to become a party to, any joint venture, off-balance sheet partnership or any similar contract (including any contract or arrangement relating to any transaction or relationship between or among Parent ~~included~~ and any of its subsidiaries, on the one hand, and any unconsolidated affiliate, including any structured finance, special purpose or limited purpose entity or person, on the other hand, or any “off-balance sheet arrangements” (as defined in ~~the Parent SEC Documents (the “Parent SEC Financial Statements”~~Item 303(a) ~~(i) have been prepared in accordance with GAAP (except as may be otherwise indicated therein or in the notes thereto and except, in the case~~ of ~~unaudited consolidated quarterly statements, as permitted by Form 10~~Regulation S-~~Q of~~ K under the Exchange Act)), ~~applied on a consistent basis during~~ where the ~~periods involved~~result, (ii) complied in all material respects with published rules and regulations of the SEC with respect thereto, and (iii) fairly present in all material respects the consolidated financial position of Parent and its consolidated Parent Subsidiaries as of the respective dates thereof and the consolidated statements of income, cash flows and changes in stockholders’ equity for the respective periods then ended (subject, in the case of unaudited quarterly statements, to normal year-end audit adjustments and the absence of footnotes). (d) As of March 31, 2007, neither Parent nor any of the Parent Subsidiaries had any liabilities purpose or ~~obligations that would have been required by GAAP to be reflected in the consolidated balance sheet of Parent and the Parent Subsidiaries as~~ intended effect of such ~~date~~contract is to avoid disclosure of any material transaction involving, ~~except (i) for such~~ or material liabilities ~~and obligations reflected~~of, reserved against or otherwise disclosed in the consolidated balance sheet of Parent and the Parent Subsidiaries as of such date (including the notes thereto) that is included in the Parent SEC Financial Statements and (ii) for such liabilities and obligations as would not be reasonably expected to have, individually or in the aggregate, a Parent Material Adverse Effect (it is understood and agreed that the representations and warranties contained in this Section 5.5(d): (x) do not apply to matters described in any of Section 5.4, the other provisions of this Section 5.5, and Sections 5.7, 5.8, 5.9, 5.10, 5.11 and 5.17 (which are addressed exclusively in those Sections) and (y) shall not be deemed breached if such breach relates to a matter which is covered by a representation or warranty of Parent and Merger Sub contained in this Article V (other than this Section 5.5(d)) that contains a “Parent’s Knowledge” qualification). (e) Since December 31, 2006 to the date of this Agreement, (i) neither Parent nor any Parent Subsidiary nor, to Parent’s Knowledge, any director, officer, auditor, accountant or representative of Parent or any of the Parent Subsidiaries has received any written complaint, allegation, assertion or claim that Parent or any of the Parent Subsidiaries has engaged in improper or illegal accounting or auditing practices or maintains improper or inadequate internal accounting controls relating to Parent and the Parent Subsidiaries, taken as a whole, (ii) no attorney representing Parent or any Parent Subsidiary has made a report to Parent’s chief legal officer, chief executive officer or Board of Directors (or any committee thereof) pursuant to the SEC’s Standards of Professional Conduct for Attorneys (17 CFR Part 205), and (iii) Parent has disclosed to its ~~outside auditors any fraud, whether or not material, of which there is Parent’s Knowledge that involves management or other employees who have a significant role~~ subsidiaries in Parent’s ~~internal control over~~ or such subsidiary’s published financial ~~reporting~~statements or other Parent SEC Documents.

Appears in 1 contract

Sources: Merger Agreement (IHS Markit Ltd.)

SEC Documents; Financial Statements; Undisclosed Liabilities. (a) ~~Parent~~ The Company has filed or furnished (as applicable) all reports, schedules, ~~forms~~ forms, statements, registration statements, prospectuses and ~~registration statements with the SEC~~ other documents required to be filed or furnished (as applicable) by ~~it pursuant to~~ the Company with the SEC under the Securities Act ~~and the Securities Act Rules,~~ or the Exchange Act ~~and the Exchange Act Rules~~since November 11, ~~in each such case since January 1, 2005~~ 2021 (~~collectively, and in each case including all annexes and schedules thereto and documents incorporated by reference therein,~~ the “~~Parent~~ Company SEC ~~Documents~~Reports”). None of the Subsidiaries of the Company is required to make any filings with the SEC. (b) As of ~~their~~ its respective ~~dates~~ filing date (or or, if ~~subsequently~~ amended or superseded ~~by a filing~~ prior to the date of this Agreement, on the date of such filing~~), the Parent~~ ) each Company SEC ~~Documents~~ Report complied as to form in all material respects with the requirements of the ~~Securities~~ ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act, the Exchange Act or the ~~Exchange~~ Securities Act, as the case may be, and the rules and regulations of the SEC promulgated thereunder applicable to such ~~Parent~~ Company SEC ~~Documents~~Report and the listing and corporate governance rules and regulations of NASDAQ, and ~~none of the Parent SEC Documents as of such dates contained~~ did not contain any untrue statement of a material fact or ~~omitted~~ omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading. ~~To Parent~~Neither the Company nor any of its Subsidiaries has received from the SEC or any other Governmental Authority any written (or to the Knowledge of the Company, oral) comments or questions with respect to any of the Company SEC Reports (including the financial statements included therein) that are not resolved, or has received any notice from the SEC or other Governmental Authority that such Company SEC Reports (including the financial statements included therein) are being reviewed or investigated, and, to the Company’s Knowledge, there is not, as of the date hereof, ~~none~~ any investigation or review being conducted by the SEC or any other Governmental Authority of any Company SEC Reports (including the ~~Parent SEC Documents is the subject of ongoing SEC review~~financial statements included therein). (bc) ~~Parent is~~ The consolidated financial statements of the Company included in ~~compliance with~~the Company SEC Reports (including, ~~and has complied~~in each case, any notes or schedules thereto) (the “Company Financial Statements”) fairly present, in all material ~~respects~~ respects, the financial condition and the results of operations, cash flows and changes in stockholders’ equity of the Company and its Subsidiaries (on a consolidated basis) as of the respective dates of and for the periods referred to in the Company Financial Statements, and were prepared in accordance with GAAP applied on a consistent basis during the periods involved (except as may be indicated in the notes thereto or, in the case of unaudited statements, as permitted by Form 10-Q of the SEC), subject, in the case of interim Company Financial Statements, to normal year-end adjustments and the absence of notes. (d) The Company has timely filed all certifications and statements required by (i) Rule 13a-14 or Rule 15d-14 under the ~~applicable provisions~~ Exchange Act; or (ii) 18 U.S.C. Section 1350 (Section 906 of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ ~~Act~~ Act) with respect to all applicable Company SEC Reports. (e) The Company’s system of ~~2002~~ internal controls over financial reporting (as defined in Rules 13a-15(f) and 15d-15(f) under the ~~related rules~~ Exchange Act) is sufficient to provide reasonable assurance (i) of the maintenance of records that in reasonable detail accurately and ~~regulations promulgated thereunder~~fairly reflect the transactions and dispositions of the assets of the Company, ~~and~~ (ii) that transactions are recorded as necessary to permit preparation of financial statements in conformity with GAAP, (iii) that receipts and expenditures are executed in accordance with the ~~applicable listing~~ authorization of management and ~~corporate governance rules~~ the Company Board, (iv) that access to assets is permitted only in accordance with management’s general or specific authorization, and ~~regulations~~ that any unauthorized use, acquisition or disposition of ~~NASDAQ. Parent~~ the Company’s assets that would materially affect the Company’s financial statements would be detected or prevented in a timely manner and (v) that the recorded accountability for assets is compared with the existing assets at reasonable intervals and appropriate action is taken with respect to any differences. (f) The Company maintains, and at all times since November 11, 2021, has ~~established and maintains~~ maintained, disclosure controls and procedures and internal control over financial reporting (as such terms are defined in paragraphs (e) and (f), respectively, of Rule 13a-15 under the Exchange Act) as required by Rule 13a-15 or Rule 15d-15 under the Exchange Act~~. Parent’s disclosure~~ , which such controls and procedures are reasonably designed to ensure that all material information ~~required~~ concerning the Company and its Subsidiaries is made known on a timely basis to ~~be disclosed by Parent~~ the individuals responsible for the preparation of the Company SEC Reports. Since January 1, 2021, neither the Company nor any of its Subsidiaries, nor, to the Company’s Knowledge, the Company’s independent auditors, has identified or been made aware of, (i) except as set forth in the ~~reports that it files~~ Company SEC Reports, any significant deficiency or ~~furnishes under the Exchange Act is recorded, processed, summarized and reported within the time periods specified~~ material weakness in the ~~rules~~ system of internal accounting controls utilized by the Company and ~~forms~~ its Subsidiaries, (ii) any Fraud, whether or not material, that involves the Company’s management or other employees who have a role in the preparation of the ~~SEC~~financial statements or the internal accounting controls utilized by the Company and its Subsidiaries, ~~and that all such material information is accumulated and communicated~~ or (iii) any claim or allegation regarding any of the foregoing. Since January 1, 2021, neither the Company nor any of its Subsidiaries has received any written (or to the ~~management of Parent as appropriate to allow timely decisions regarding required disclosure and to make the certifications required pursuant to Sections 302 and 906~~ Knowledge of the ~~▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act.~~ Company, oral), unresolved, complaint, allegation, assertion or claim regarding the impropriety of any accounting or auditing practices, procedures, methodologies or methods of the Company or any Subsidiary of the Company or their respective internal accounting controls. (g) The Company’s management ~~of Parent~~ has completed ~~its~~ an assessment of the effectiveness of ~~Parent~~the Company’s internal control over financial reporting in compliance with the requirements of Section 404 of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act for the fiscal year ended December 31, ~~2006~~2022, ~~and~~ and, except as set forth in the Company SEC Reports, such assessment concluded that such ~~controls were effective to provide reasonable assurance regarding~~ control was effective. Since such date, there have been no changes in the reliability of Parent’s financial reporting and the preparation of Parent’s financial statements for external purposes in accordance with GAAP. Parent has disclosed, based on its assessment of the effectiveness of ParentCompany’s internal control over financial reporting in compliance with the requirements of Section 404 of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act for the year ended December 31, 2006, to Parent’s independent registered accounting firm and the audit committee of the Board of Directors of Parent (A) any significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect Parent’s ability to record, process, summarize and report financial information and (B) any fraud, whether or not material, of which there is Parent’s Knowledge that involves management or other employees who have a significant role in Parent’s internal control over financial reporting for the year ended December 31, 2006. Parent any has made available to the Company a summary of any such disclosures made by management to such accounting firm or audit committee for the year ended December 31, 2006. (c) The consolidated financial statements of Parent included in the Parent SEC Documents (the “Parent SEC Financial Statements”) (i) have been prepared in accordance with GAAP (except as may be otherwise indicated therein or in the notes thereto and except, in the case of unaudited consolidated quarterly statements, as permitted by Form 10-Q of the Exchange Act), applied on a consistent basis during the periods involved, (ii) complied in all material respects with published rules and regulations of the SEC with respect thereto, and (iii) fairly present in all material respects the consolidated financial position of Parent and its consolidated Parent Subsidiaries as of the respective dates thereof and the consolidated statements of income, cash flows and changes in stockholders’ equity for the respective periods then ended (subject, in the case of unaudited quarterly statements, to normal year-end audit adjustments and the absence of footnotes). (d) As of March 31, 2007, neither Parent nor any of the Parent Subsidiaries had any liabilities or obligations that would have been required by GAAP to be reflected in the consolidated balance sheet of Parent and the Parent Subsidiaries as of such date, except (i) for such liabilities and obligations reflected, reserved against or otherwise disclosed in the consolidated balance sheet of Parent and the Parent Subsidiaries as of such date (including the notes thereto) that is included in the Parent SEC Financial Statements and (ii) for such liabilities and obligations as would not be reasonably expected to havethat, individually or in the aggregate, ~~a Parent Material Adverse Effect (it is understood~~ have materially and ~~agreed that the representations~~ adversely affected or would reasonably be expected to materially and ~~warranties contained in this Section 5.5(d): (x) do not apply to matters described in any of Section 5.4~~adversely affect, the other provisions of this Section 5.5, and Sections 5.7, 5.8, 5.9, 5.10, 5.11 and 5.17 (which are addressed exclusively in those Sections) and (y) shall not be deemed breached if such breach relates to a matter which is covered by a representation or warranty of Parent and Merger Sub contained in this Article V (other than this Section 5.5(d)) that contains a “Parent’s Knowledge” qualification). (e) Since December 31, 2006 to the date of this Agreement, (i) neither Parent nor any Parent Subsidiary nor, to Parent’s Knowledge, any director, officer, auditor, accountant or representative of Parent or any of the Parent Subsidiaries has received any written complaint, allegation, assertion or claim that Parent or any of the Parent Subsidiaries has engaged in improper or illegal accounting or auditing practices or maintains improper or inadequate internal accounting controls relating to Parent and the Parent Subsidiaries, taken as a whole, (ii) no attorney representing Parent or any Parent Subsidiary has made a report to Parent’s chief legal officer, chief executive officer or Board of Directors (or any committee thereof) pursuant to the SEC’s Standards of Professional Conduct for Attorneys (17 CFR Part 205), and (iii) Parent has disclosed to its outside auditors any fraud, whether or not material, of which there is Parent’s Knowledge that involves management or other employees who have a significant role in ParentCompany’s internal control over financial reporting. (h) Neither the Company nor any of its Subsidiaries is a party to, or has any Contract to become a party to, any joint venture, off-balance sheet partnership or any similar Contract, including any Contract relating to any transaction or relationship between or among the Company or any of its Subsidiaries, on the one hand, and any unconsolidated affiliate, including any structured finance, special purpose or limited purpose entity or Person, on the other hand, or any off-balance sheet arrangements (as defined in Item 303(a) of Regulation S-K of the SEC) where the purpose of such Contract is to avoid disclosure of any material transaction involving, or material liabilities of, the Company in the Company’s published financial statements or any Company SEC Reports. (i) The Company and its Subsidiaries do not have any liabilities or obligations of any nature (whether absolute or contingent, asserted or unasserted, known or unknown, primary or secondary, direct or indirect, and whether or not accrued) required by GAAP to be reflected or reserved on a consolidated balance sheet of the Company (or the notes thereto) except (i) as disclosed, reflected or reserved against in the most recent audited balance sheet included in the Company Financial Statements or the notes thereto, (ii) for liabilities and obligations incurred in the ordinary course of business or pursuant to actions taken that are expressly described in the Strategic Alternative Disclosure since the date of the most recent audited balance sheet included in the Company Financial Statements, (iii) for liabilities and obligations arising out of or in connection with this Agreement or the Merger and (iv) for liabilities and obligations that, individually or in the aggregate, are not material to the Company and its Subsidiaries, taken as a whole.

Appears in 1 contract

Sources: Merger Agreement (Embark Technology, Inc.)

SEC Documents; Financial Statements; Undisclosed Liabilities. (a) ~~Parent~~ Except as set forth in Section 3.5(a) of the Company Disclosure Schedule, the Company has filed all required reports, schedules, forms and ~~registration~~ registration, proxy and other statements with the ~~SEC required to be filed by it pursuant to~~ SEC, including without limitation the ~~Securities Act and~~ Company’s Annual Report on Form 10-KSB for the ~~Securities Act Rules~~year end December 31, ~~or the Exchange Act and the Exchange Act Rules, in each such case since January 1, 2005~~ 2004 (collectively, and in each case including all ~~annexes~~ exhibits and schedules thereto and documents incorporated by reference therein, the “~~Parent~~ SEC Documents”). As of their respective effective dates (~~or if subsequently amended or superseded by a filing prior~~ in the case of SEC Documents that are registration statements filed pursuant to the ~~date~~ Securities Act) and as of ~~this Agreement, on~~ their respective SEC filing dates (in the ~~date~~ case of ~~such filing~~all other SEC Documents), the ~~Parent~~ SEC Documents complied ~~as to form~~ in all material respects with the requirements of the Exchange Act and the Securities ~~Act or the Exchange~~ Act, as the case may be, and the rules and regulations of the SEC promulgated ~~thereunder~~ thereunder, applicable to such ~~Parent~~ SEC Documents, and none of the ~~Parent~~ SEC Documents as of such respective dates contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading~~. To Parent’s Knowledge, as of the date hereof, none of the Parent SEC Documents is the subject of ongoing SEC review~~. (b) Parent is in compliance with, and has complied, in all material respects with (i) the applicable provisions of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002 and the related rules and regulations promulgated thereunder, and (ii) the applicable listing and corporate governance rules and regulations of NASDAQ. Parent has established and maintains disclosure controls and procedures and internal control over financial reporting (as such terms are defined in paragraphs (e) and (f), respectively, of Rule 13a-15 under the Exchange Act) as required by Rule 13a-15 under the Exchange Act. Parent’s disclosure controls and procedures are reasonably designed to ensure that all material information required to be disclosed by Parent in the reports that it files or furnishes under the Exchange Act is recorded, processed, summarized and reported within the time periods specified in the rules and forms of the SEC, and that all such material information is accumulated and communicated to the management of Parent as appropriate to allow timely decisions regarding required disclosure and to make the certifications required pursuant to Sections 302 and 906 of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act. The management of Parent has completed its assessment of the effectiveness of Parent’s internal control over financial reporting in compliance with the requirements of Section 404 of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act for the year ended December 31, 2006, and such assessment concluded that such controls were effective to provide reasonable assurance regarding the reliability of Parent’s financial reporting and the preparation of Parent’s financial statements for external purposes in accordance with GAAP. Parent has disclosed, based on its assessment of the effectiveness of Parent’s internal control over financial reporting in compliance with the requirements of Section 404 of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act for the year ended December 31, 2006, to Parent’s independent registered accounting firm and the audit committee of the Board of Directors of Parent (A) any significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect Parent’s ability to record, process, summarize and report financial information and (B) any fraud, whether or not material, of which there is Parent’s Knowledge that involves management or other employees who have a significant role in Parent’s internal control over financial reporting for the year ended December 31, 2006. Parent any has made available to the Company a summary of any such disclosures made by management to such accounting firm or audit committee for the year ended December 31, 2006. (c) The consolidated financial statements of ~~Parent~~ the Company included in the ~~Parent~~ SEC Documents and the consolidated financial statements of the Company as of and for the period ended February 28, 2005 (the “~~Parent SEC~~ Interim Financial Statements”) (ia copy of which Interim Financial Statements are attached to Section 3.5(b) of the Company Disclosure Schedule) have been prepared in accordance with GAAP ~~(except as may be otherwise indicated therein or in the notes thereto~~ and ~~except, in the case of unaudited consolidated quarterly statements, as permitted by Form 10-Q of the Exchange Act),~~ applicable SEC accounting rules applied on a consistent basis ~~during~~ throughout the periods ~~involved, (ii) complied in all material respects with published rules~~ involved and ~~regulations of the SEC with respect thereto, and (iii)~~ fairly present in all material respects the consolidated financial position of ~~Parent~~ the Company and its consolidated ~~Parent~~ Subsidiaries as of the ~~respective~~ dates thereof and the consolidated ~~statements~~ results of ~~income,~~ their operations and cash flows ~~and changes in stockholders’ equity~~ for the ~~respective~~ periods then ended (subject, in the case of unaudited ~~quarterly~~ financial statements, to normal year-end audit ~~adjustments and the absence of footnotes~~adjustments). (dc) ~~As of March 31, 2007, neither Parent~~ Neither the Company nor any of ~~the Parent~~ its Subsidiaries ~~had~~ has any liabilities of any nature, whether accrued, absolute, contingent, direct, indirect or ~~obligations that~~ otherwise, which would ~~have been~~ be required ~~by GAAP~~ to be reflected ~~in the~~ or reserved against on a consolidated balance sheet of ~~Parent~~ the Company prepared in accordance with GAAP or the notes thereto, except liabilities (i) reflected or reserved against on the audited balance sheet of the Company and ~~the Parent~~ its Subsidiaries as of ~~such date~~December 31, ~~except~~ 2004 (ithe “Balance Sheet Date”) ~~for such liabilities and obligations reflected, reserved against or otherwise disclosed in the consolidated balance sheet of Parent and the Parent Subsidiaries as of such date~~ (including the notes thereto) ~~that is~~ (the “Balance Sheet”) included in the ~~Parent SEC~~ Company’s Annual Report on Form 10-KSB for the year then ended, or (ii) incurred after the Balance Sheet Date in the ordinary course of business, consistent with past practice, or (iii) liabilities reflected on the Company Disclosure Schedule. The reserves, if any reflected on the Balance Sheet and the Interim Financial Statements are adequate, appropriate and reasonable for their purposes, including without limitation, litigation reserves and product warranty reserves, if any. (d) The accounts receivable shown on the Interim Financial Statements arose from bona fide transactions in the ordinary course of business. The accounts receivable of the Company and its Subsidiaries arising after the date of the Interim Financial Statements and ~~(ii) for such liabilities and obligations as would not be reasonably expected~~ prior to ~~have~~the Closing Date arose, ~~individually~~ or will arise, from bona fide transactions in the ~~aggregate, a Parent Material Adverse Effect (it is understood and agreed that~~ ordinary course of business. Except as reserved on the ~~representations and warranties~~ balance sheets contained in ~~this Section 5.5(d): (x) do not apply~~ the Interim Financial Statements, none of such accounts receivable is subject to ~~matters described in~~ any claim of ~~Section 5.4, the other provisions of this Section 5.5~~offset or recoupment or counterclaim, and ~~Sections 5.7, 5.8, 5.9, 5.10, 5.11 and 5.17 (which are addressed exclusively in those Sections) and (y) shall not~~ the Company has no Knowledge of any specific facts that would be ~~deemed breached if~~ likely to give rise to any such ~~breach relates to a matter which is covered by a representation or warranty of Parent and Merger Sub~~ claim. Except as reserved on the balance sheets contained in ~~this Article V (other than this Section 5.5(d)) that contains a “Parent’s Knowledge” qualification). (e) Since December 31~~the Interim Financial Statements, ~~2006 to~~ no amount of such accounts receivable is contingent upon the ~~date of this Agreement, (i) neither Parent nor any Parent Subsidiary nor, to Parent’s Knowledge, any director, officer, auditor, accountant or representative of Parent~~ performance by the Company or any of its Subsidiaries of any obligation and no agreement for deduction or discount or any type of credit has been made with respect to any such accounts receivable. Except as reserved on the ~~Parent Subsidiaries has received any written complaint~~balance sheet included in the Interim Financial Statements, ~~allegation~~to the Knowledge of the Company, ~~assertion or claim that Parent~~ no account debtor of the Company or any of ~~the Parent~~ its Subsidiaries has ~~engaged in improper~~ proposed any discount or ~~illegal accounting or auditing practices or maintains improper or inadequate internal accounting controls relating~~ reduction with respect to ~~Parent and the Parent Subsidiaries, taken as a whole, (ii) no attorney representing Parent or any Parent Subsidiary has made a report to Parent~~such account debtor’s chief legal officer, chief executive officer or Board of Directors (or any committee thereof) pursuant to the SEC’s Standards of Professional Conduct for Attorneys (17 CFR Part 205), and (iii) Parent has disclosed to its outside auditors any fraud, whether or not material, of which there is Parent’s Knowledge that involves management or other employees who have a significant role in Parent’s internal control over financial reportingaccounts receivable.

Appears in 1 contract

Sources: Merger Agreement (FFG Merger Corporation, Inc)

SEC Documents; Financial Statements; Undisclosed Liabilities. (ai) ~~Parent~~ OPCH has filed or furnished all required registration statements, prospectuses, reports, schedules, ~~forms~~ forms, statements, certifications and ~~registration statements~~ other documents (including exhibits and all other information incorporated therein, regardless of when such exhibits and other information were filed) with the SEC ~~required to be filed by it pursuant to the Securities Act and the Securities Act Rules, or the Exchange Act and the Exchange Act Rules, in each such case~~ since January 1, ~~2005~~ 2021 (~~collectively, and in each case including all annexes and schedules thereto and documents incorporated by reference therein,~~ the “~~Parent~~ OPCH SEC Documents”). As of their respective ~~dates (or if subsequently amended or superseded by a filing prior to the date of this Agreement, on the date of such filing)~~dates, the ~~Parent~~ OPCH SEC Documents complied ~~as to form~~ in all material respects with the requirements of the Securities ~~Act or~~ Act, the Exchange Act and the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act, as the case may be, and the rules and regulations of the SEC promulgated thereunder applicable to ~~such Parent~~ the OPCH SEC Documents, and none of the ~~Parent~~ OPCH SEC Documents ~~as of such dates~~ when filed and at their respective effective times, if applicable, contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading. ~~To Parent’s Knowledge, as~~ As of the date ~~hereof~~of this Agreement, there are no outstanding or unresolved comments received from the SEC with respect to any of the OPCH SEC Documents, and, to the knowledge of OPCH, none of the ~~Parent~~ OPCH SEC Documents is the subject of ~~ongoing~~ any outstanding SEC ~~review~~investigation. No subsidiary of OPCH is required to file reports with the SEC pursuant to the requirements of the Exchange Act. (bii) ~~Parent is~~ The consolidated financial statements (including all related notes and schedules) of OPCH and its subsidiaries included in ~~compliance with, and has complied,~~ the OPCH SEC Documents were prepared in all material respects in accordance with GAAP (iexcept, in the case of unaudited statements, as permitted by the SEC) applied on a consistent basis during the ~~applicable provisions~~ periods involved (except as may be indicated in the notes thereto) and fairly present in all material respects the consolidated financial position of OPCH and its consolidated subsidiaries as of the ~~▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002~~ dates thereof and the ~~related rules~~ consolidated results of their operations and ~~regulations promulgated thereunder~~cash flows for the periods then ended (subject, in the case of unaudited statements, to normal year-end audit adjustments which are not material and to any other adjustments described therein, including the notes thereto). (iii) Except (A) as reflected or reserved against in OPCH’s audited balance sheet as of December 31, 2022 (or the notes thereto) included in OPCH’s Annual Report on Form 10-K filed with the SEC on February 23, 2023 (the “OPCH Balance Sheet”), (B) for liabilities and obligations incurred in the ordinary course of business consistent with past practice since December 31, 2022, and (iiC) for liabilities and obligations incurred in connection with or contemplated by this Agreement, neither OPCH nor any of its subsidiaries has any liabilities or obligations of any nature (whether accrued, absolute, contingent or otherwise) that would be required by GAAP to be reflected on a consolidated balance sheet of OPCH and its subsidiaries (or in the ~~applicable listing and corporate governance rules and regulations~~ notes thereto) that, individually or in the aggregate, would reasonably be expected to have a Material Adverse Effect on OPCH. (iv) OPCH maintains a system of ~~NASDAQ. Parent has established and maintains disclosure controls and procedures and~~ “internal control over financial ~~reporting~~ reporting” (as ~~such terms are~~ defined in ~~paragraphs (e~~Rules 13a-15(f) and ~~(f), respectively,~~ 15d-15(f) of ~~Rule 13a-15 under~~ the Exchange Act) sufficient to provide reasonable assurance (A) that transactions are recorded as ~~required by Rule 13a-15 under~~ necessary to permit preparation of financial statements in conformity with GAAP, consistently applied, (B) that transactions are executed only in accordance with the authorization of management and (C) regarding prevention or timely detection of the unauthorized acquisition, use or disposition of OPCH’s properties or assets. Since January 1, 2021, none of OPCH, OPCH’s independent accountants, the Board of Directors of OPCH or its audit committee has identified or been made aware of any (1) “significant deficiency” in the internal controls over financial reporting of OPCH, (2) “material weakness” in the internal controls over financial reporting of OPCH, (3) fraud, whether or not material, that involves management or other employees of OPCH who have a significant role in the internal controls over financial reporting of OPCH or (4) any bona fide complaints regarding a material violation of accounting procedures, internal accounting controls or auditing matters, including from employees of OPCH or any of its subsidiaries regarding questionable accounting, auditing or legal compliance matters. (v) The “disclosure controls and procedures” (as defined in Rules 13a- 15(e) and 15d-15(e) of the Exchange Act~~. Parent’s disclosure controls and procedures~~ ) utilized by OPCH are reasonably designed to ensure that all ~~material~~ information (both financial and non-financial) required to be disclosed by ~~Parent~~ OPCH in the reports that it files or ~~furnishes~~ submits under the Exchange Act is recorded, processed, summarized and reported within the time periods specified in the rules and forms of the ~~SEC,~~ SEC and that all such ~~material~~ information required to be disclosed is accumulated and communicated to the management of ~~Parent~~ OPCH, as ~~appropriate~~ appropriate, to allow timely decisions regarding required disclosure and to enable the chief executive officer and chief financial officer of OPCH to make the certifications required ~~pursuant to Sections 302 and 906 of~~ under the ~~▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act. The management of Parent has completed its assessment of the effectiveness of Parent’s internal control over financial reporting in compliance~~ Exchange Act with the requirements of Section 404 of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act for the year ended December 31, 2006, and such assessment concluded that such controls were effective to provide reasonable assurance regarding the reliability of Parent’s financial reporting and the preparation of Parent’s financial statements for external purposes in accordance with GAAP. Parent has disclosed, based on its assessment of the effectiveness of Parent’s internal control over financial reporting in compliance with the requirements of Section 404 of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act for the year ended December 31, 2006, to Parent’s independent registered accounting firm and the audit committee of the Board of Directors of Parent (A) any significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect Parent’s ability to record, process, summarize and report financial information and (B) any fraud, whether or not material, of which there is Parent’s Knowledge that involves management or other employees who have a significant role in Parent’s internal control over financial reporting for the year ended December 31, 2006. Parent any has made available to the Company a summary of any such disclosures made by management respect to such ~~accounting firm or audit committee for the year ended December 31, 2006~~reports. (cvi) ~~The consolidated financial statements~~ Neither OPCH nor any of ~~Parent included~~ its subsidiaries is a party to, or has any commitment to become a party to, any joint venture, off-balance sheet partnership or any similar contract (including any contract or arrangement relating to any transaction or relationship between or among OPCH and any of its subsidiaries, on the one hand, and any unconsolidated affiliate, including any structured finance, special purpose or limited purpose entity or person, on the other hand, or any “off- balance sheet arrangements” (as defined in ~~the Parent SEC Documents (the “Parent SEC Financial Statements”~~Item 303(a) ~~(i) have been prepared in accordance with GAAP (except as may be otherwise indicated therein or in the notes thereto and except, in the case~~ of ~~unaudited consolidated quarterly statements, as permitted by Form 10~~Regulation S-~~Q of~~ K under the Exchange Act)), ~~applied on a consistent basis during~~ where the periods involved, (ii) complied in all material respects with published rules and regulations of the SEC with respect thereto, and (iii) fairly present in all material respects the consolidated financial position of Parent and its consolidated Parent Subsidiaries as of the respective dates thereof and the consolidated statements of income, cash flows and changes in stockholders’ equity for the respective periods then ended (subject, in the case of unaudited quarterly statements, to normal year-end audit adjustments and the absence of footnotes). (d) As of March 31, 2007, neither Parent nor any of the Parent Subsidiaries had any liabilities purpose or ~~obligations that would have been required by GAAP to be reflected in the consolidated balance sheet of Parent and the Parent Subsidiaries as~~ intended effect of such ~~date~~contract is to avoid disclosure of any material transaction involving, ~~except (i) for such~~ or material liabilities ~~and obligations reflected~~of, reserved against or otherwise disclosed in the consolidated balance sheet of Parent and the Parent Subsidiaries as of such date (including the notes thereto) that is included in the Parent SEC Financial Statements and (ii) for such liabilities and obligations as would not be reasonably expected to have, individually or in the aggregate, a Parent Material Adverse Effect (it is understood and agreed that the representations and warranties contained in this Section 5.5(d): (x) do not apply to matters described in any of Section 5.4, the other provisions of this Section 5.5, and Sections 5.7, 5.8, 5.9, 5.10, 5.11 and 5.17 (which are addressed exclusively in those Sections) and (y) shall not be deemed breached if such breach relates to a matter which is covered by a representation or warranty of Parent and Merger Sub contained in this Article V (other than this Section 5.5(d)) that contains a “Parent’s Knowledge” qualification). (e) Since December 31, 2006 to the date of this Agreement, (i) neither Parent nor any Parent Subsidiary nor, to Parent’s Knowledge, any director, officer, auditor, accountant or representative of Parent OPCH or any of ~~the Parent Subsidiaries has received any written complaint, allegation, assertion~~ its subsidiaries in OPCH’s or claim that Parent or any of the Parent Subsidiaries has engaged in improper or illegal accounting or auditing practices or maintains improper or inadequate internal accounting controls relating to Parent and the Parent Subsidiaries, taken as a whole, (ii) no attorney representing Parent or any Parent Subsidiary has made a report to Parentsuch subsidiary’s chief legal officer, chief executive officer or Board of Directors (or any committee thereof) pursuant to the SEC’s Standards of Professional Conduct for Attorneys (17 CFR Part 205), and (iii) Parent has disclosed to its outside auditors any fraud, whether or not material, of which there is Parent’s Knowledge that involves management published financial statements or other ~~employees who have a significant role in Parent’s internal control over financial reporting~~OPCH SEC Documents.

Appears in 1 contract

Sources: Merger Agreement

SEC Documents; Financial Statements; Undisclosed Liabilities. (a) ~~Parent~~ The Company has filed all reports, schedules, forms and registration statements with the SEC required to be filed ~~by it~~ pursuant to the Securities Act ~~and the Securities Act Rules,~~ or the Exchange Act and the ~~Exchange Act Rules~~rules and regulations of the SEC promulgated thereunder from May 29, ~~in each such case since January 1, 2005~~ 2004 through the date of this Agreement (collectively, ~~and in each case including all annexes and schedules thereto and documents incorporated by reference therein,~~ the “~~Parent~~ SEC Documents”). As of their respective dates (or if subsequently amended or superseded by a filing prior to the date of this Agreement, on the date of such filing), the ~~Parent~~ SEC ~~Documents~~ Documents, including any financial statements or schedules included therein, as finally amended, complied as to form in all material respects with the applicable requirements of the Securities Act or the Exchange Act, as the case may be, and the rules and regulations of the SEC promulgated thereunder applicable to such ~~Parent~~ SEC ~~Documents~~Documents (as the Securities Act or the Exchange Act and the rules and regulation promulgated thereunder were in effect on the date so filed), and none of the ~~Parent~~ SEC ~~Documents as of such dates~~ Documents, when finally amended prior to the date hereof, contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading. ~~To Parent’s Knowledge, as~~ As of the date ~~hereof~~of this Agreement, ~~none~~ there are no outstanding or unresolved comments in comment letters received by the Company from the SEC staff with respect to any of the ~~Parent~~ SEC ~~Documents~~ Documents. No Company Subsidiary is required to file any forms, reports or other documents with the ~~subject of ongoing SEC review~~SEC. (b) Parent is in compliance with, and has complied, in all material respects with (i) the applicable provisions of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002 and the related rules and regulations promulgated thereunder, and (ii) the applicable listing and corporate governance rules and regulations of NASDAQ. Parent has established and maintains disclosure controls and procedures and internal control over financial reporting (as such terms are defined in paragraphs (e) and (f), respectively, of Rule 13a-15 under the Exchange Act) as required by Rule 13a-15 under the Exchange Act. Parent’s disclosure controls and procedures are reasonably designed to ensure that all material information required to be disclosed by Parent in the reports that it files or furnishes under the Exchange Act is recorded, processed, summarized and reported within the time periods specified in the rules and forms of the SEC, and that all such material information is accumulated and communicated to the management of Parent as appropriate to allow timely decisions regarding required disclosure and to make the certifications required pursuant to Sections 302 and 906 of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act. The management of Parent has completed its assessment of the effectiveness of Parent’s internal control over financial reporting in compliance with the requirements of Section 404 of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act for the year ended December 31, 2006, and such assessment concluded that such controls were effective to provide reasonable assurance regarding the reliability of Parent’s financial reporting and the preparation of Parent’s financial statements for external purposes in accordance with GAAP. Parent has disclosed, based on its assessment of the effectiveness of Parent’s internal control over financial reporting in compliance with the requirements of Section 404 of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act for the year ended December 31, 2006, to Parent’s independent registered accounting firm and the audit committee of the Board of Directors of Parent (A) any significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect Parent’s ability to record, process, summarize and report financial information and (B) any fraud, whether or not material, of which there is Parent’s Knowledge that involves management or other employees who have a significant role in Parent’s internal control over financial reporting for the year ended December 31, 2006. Parent any has made available to the Company a summary of any such disclosures made by management to such accounting firm or audit committee for the year ended December 31, 2006. (c) The consolidated financial statements (including the related notes and schedules) of ~~Parent~~ the Company included in the ~~Parent~~ SEC Documents (the “~~Parent~~ SEC Financial Statements”~~) (i~~) have been prepared in accordance with GAAP (except as may be otherwise indicated therein or in the notes thereto and except, in the case of unaudited consolidated quarterly statements, as permitted by Form 10-Q of the Exchange Act), applied on a consistent basis during the periods involved, ~~(ii) complied in all material respects with published rules~~ and ~~regulations of the SEC with respect thereto, and (iii)~~ fairly present in all material respects the consolidated financial position of ~~Parent~~ the Company and its consolidated ~~Parent~~ Subsidiaries as of the respective dates thereof and the consolidated statements of ~~income~~operations, ~~cash flows and changes in~~ stockholders’ equity and cash flows for the respective periods then ended (subject, in the case of unaudited quarterly statements, to normal year-end audit adjustments and the absence of footnotes). (dc) ~~As of March 31~~The Company has designed disclosure controls and procedures to ensure that material information relating to the Company, ~~2007~~including its consolidated Company Subsidiaries, ~~neither Parent nor any~~ is made known to the chief executive officer and the chief accounting officer of the ~~Parent Subsidiaries had any liabilities or obligations that would have been required~~ Company by ~~GAAP~~ others within those entities. The Company has disclosed, based on its most recent evaluation prior to ~~be reflected in~~ the ~~consolidated balance sheet of Parent~~ date hereof, to the Company’s auditors and the ~~Parent Subsidiaries as~~ audit committee of ~~such date~~the Board of Directors of the Company, except (i) for such liabilities and obligations reflected, reserved against or otherwise disclosed in the consolidated balance sheet of Parent and the Parent Subsidiaries as of such date (including the notes thereto) that is included in the Parent SEC Financial Statements and (ii) for such liabilities and obligations as would not be reasonably expected to have, individually or in the aggregate, a Parent Material Adverse Effect (it is understood and agreed that the representations and warranties contained in this Section 5.5(d): (x) ~~do not apply~~ any significant deficiencies and material weaknesses in the design or operation of internal controls over financial reporting which are reasonably likely to ~~matters described~~ adversely effect in any ~~of Section 5.4~~material respect the Company’s ability to record, ~~the other provisions of this Section 5.5~~process, summarize and ~~Sections 5.7, 5.8, 5.9, 5.10, 5.11 and 5.17 (which are addressed exclusively in those Sections)~~ report financial information and (y) ~~shall~~ any fraud, whether or not material, that involves management or other employees who have a significant role in the Company’s internal controls over financial reporting. To the Company’s Knowledge, there is no reason to believe, after completion of all remediation set forth on Section 4.5(c) of the Company Disclosure Schedule and any other remediation the costs of which would not be deemed breached if such breach relates to a matter which is covered by a representation or warranty of Parent and Merger Sub contained in this Article V (other than this Section 5.5(d)) that contains a “Parent’s Knowledge” qualification). (e) Since December 31, 2006 material to the ~~date~~ Company and the Company Subsidiaries taken as a whole, that its auditors and its chief executive officer will not be able to give the certifications and attestations required pursuant to the rules and regulations adopted pursuant to Section 404 of ~~this Agreement~~the Sa▇▇▇▇▇▇-▇▇▇▇▇ ▇ct of 2002 when next due. Since May 28, 2005, (i) neither ~~Parent~~ the Company nor any ~~Parent~~ Company Subsidiary nor, to ~~Parent~~the Company’s Knowledge, any director, officer, employee, auditor, accountant or representative of ~~Parent~~ the Company or any of the ~~Parent~~ Company Subsidiaries has received any written complaint, allegation, assertion or claim that ~~Parent~~ the Company or any of the ~~Parent~~ Company Subsidiaries has engaged in improper or illegal accounting or auditing practices or maintains improper or inadequate internal accounting controls relating to ~~Parent~~ the Company and the ~~Parent Subsidiaries,~~ Company Subsidiaries taken as a ~~whole,~~ whole and (ii) no attorney representing ~~Parent~~ the Company or any ~~Parent~~ Company Subsidiary has made a report to ~~Parent~~the Company’s chief legal officer, chief executive officer or Board of Directors (or any committee thereof) pursuant to the SEC’s Standards of Professional Conduct for Attorneys (17 CFR Part 205). (d) Since the enactment of the Sa▇▇▇▇▇▇-▇▇▇▇▇ ▇ct of 2002, the Company has been and is in compliance in all material respects with (i) the applicable provisions of the Sa▇▇▇▇▇▇-▇▇▇▇▇ ▇ct of 2002 and (ii) the applicable listing and corporate governance rules and regulations of the New York Stock Exchange. (e) Neither the Company nor any of the Company Subsidiaries has any Liabilities that would be required by GAAP to be reflected in the consolidated balance sheet of the Company, except (a) for such Liabilities (i) reflected, reserved against or otherwise disclosed in the consolidated balance sheet of the Company as of November 26, 2005 or May 28, 2005 (in each case including the notes thereto), which is included in the SEC Financial Statements, (ii) incurred in the ordinary course of business consistent with past practice, (iii) ~~Parent has~~ arising under the terms of (but not from any breach of default under) any Contract or Permit binding upon the Company or any of the Company Subsidiaries that is either (x) disclosed in the Company Disclosure Schedule or (y) not required to ~~its outside auditors~~ be so disclosed by the terms of this Agreement, and including any ~~fraud~~such Contract that is entered into, ~~whether~~ or such Permit that is obtained, after the date of this Agreement, as long as entering into such Contract or obtaining such Permit does not ~~material~~violate any provision of this Agreement, ~~of which there is Parent’s Knowledge that involves management~~ or (iv) incurred pursuant to or in connection with this Agreement or the Transactions and (b) for such other ~~employees who have~~ Liabilities as would not reasonably be expected to have, individually or in the aggregate, a ~~significant role in Parent’s internal control over financial reporting~~Company Material Adverse Effect.

Appears in 1 contract

Sources: Merger Agreement (Burlington Coat Factory Warehouse Corp)

SEC Documents; Financial Statements; Undisclosed Liabilities. (a) ~~Parent~~ The Company has filed or furnished all reports, schedules, ~~forms~~ forms, statements, registration statements, prospectuses and ~~registration statements with the SEC~~ other documents required to be filed or furnished by ~~it pursuant to~~ the Company with the SEC under the Securities Act ~~and the Securities Act Rules,~~ or the Exchange Act ~~and the Exchange Act Rules, in each such case~~ since January 1, ~~2005~~ 2020 (~~collectively, and in each case including all annexes and schedules thereto and documents incorporated by reference therein,~~ the “~~Parent~~ Company SEC Documents”). None of the Subsidiaries of the Company is required to make any filings with the SEC. (b) As of ~~their~~ its respective ~~dates~~ filing date (or or, if ~~subsequently~~ amended or superseded ~~by a filing~~ prior to the date of this Agreement, on the date of such filing~~), the Parent~~ ) each Company SEC ~~Documents~~ Document complied in as to form in all material respects with the requirements of the Exchange Act, the Securities Act or the ~~Exchange~~ ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act, as the case may be, and the rules and regulations of the SEC promulgated thereunder applicable to such ~~Parent~~ Company SEC ~~Documents,~~ Document and ~~none of the Parent SEC Documents as of such dates contained~~ did not contain any untrue statement of a material fact or ~~omitted~~ omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading. ~~To Parent’s Knowledge, as~~ As of the date ~~hereof~~of this Agreement, ~~none of~~ there are no outstanding or unresolved comments received from the ~~Parent~~ SEC with respect to any Company SEC Documents is that would be required to be disclosed under Item 1B of Form 10-K under the ~~subject of ongoing SEC review. (b) Parent~~ Exchange Act. The Company is in material compliance ~~with, and has complied, in~~ with all ~~material respects with (i) the applicable provisions of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002 and the related rules and regulations promulgated thereunder, and (ii) the~~ applicable listing and corporate governance rules of the NYSE. (c) The consolidated financial statements of the Company included in the Company SEC Documents (including, in each case, any notes or schedules thereto) (the “Company SEC Financial Statements”) (i) fairly present (or, in the case of Company SEC Documents filed after the date of this Agreement, will fairly present when filed), in all material respects, the financial condition and the results of operations, cash flows and changes in stockholders’ equity of the Company and its Subsidiaries (on a consolidated basis) as of the respective dates of and for the periods referred to in the Company SEC Financial Statements, (ii) were prepared (or, in the case of Company SEC Documents filed after the date of this Agreement, will have been prepared when filed) in accordance with GAAP as applied by the Company (except as may be indicated in the notes thereto or, in the case of unaudited statements, as permitted by Form 10-Q of the SEC), subject, in the case of interim Company SEC Financial Statements, to normal year-end adjustments and the absence of notes and (iii) comply (or, in the case of Company SEC Documents filed after the date of this Agreement, will have complied when filed) as to form in all material respects with the applicable requirements under the Securities Act, the Exchange Act and the applicable rules and regulations of ~~NASDAQ. Parent~~ the SEC. (d) The Company has ~~established~~ timely filed all certifications and ~~maintains disclosure controls and procedures and internal control over financial reporting~~ statements required by (~~as such terms are defined in paragraphs (e~~i) ~~and (f), respectively, of~~ Rule ~~13a-15~~ 13a-14 or Rule 15d-14 under the Exchange Act; or (ii) as required by Rule 13a-15 under the Exchange Act. Parent’s disclosure controls and procedures are reasonably designed to ensure that all material information required to be disclosed by Parent in the reports that it files or furnishes under the Exchange Act is recorded, processed, summarized and reported within the time periods specified in the rules and forms of the SEC, and that all such material information is accumulated and communicated to the management of Parent as appropriate to allow timely decisions regarding required disclosure and to make the certifications required pursuant to Sections 302 and 18 U.S.C. Section 1350 (Section 906 of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act) with respect to all applicable Company SEC Documents. The Company maintains disclosure controls and procedures required by Rule 13a-15 or Rule 15d-15 under the Exchange Act, which such controls and procedures are designed to ensure that all material information concerning the Company and its Subsidiaries is made known on a timely basis to the individuals responsible for the preparation of the Company SEC Documents. Neither the Company nor, to the Knowledge of the Company, the Company’s independent registered public accounting firm has identified or been made aware of: (i) any “significant deficiency” or “material weakness” (each as defined in Rule 12b-2 of the Exchange Act) in the system of internal control over financial reporting utilized by the Company and its Subsidiaries that has not been subsequently remediated; (ii) any fraud that involves the Company’s management or other employees who have a role in the preparation of ~~Parent~~ financial statements or the internal control over financial reporting utilized by the Company and its Subsidiaries; or (iii) any complaints regarding a material violation of accounting procedures, internal accounting controls or auditing matters relating to the period since January 1, 2020, including from employees of the Company or its Subsidiaries regarding questionable accounting, auditing or legal compliance matters, in each case that have adversely affected or would be reasonably expected to adversely affect the Company’s ability to record, process, summarize and report financial information. The Company’s management has completed ~~its~~ an assessment of the effectiveness of ~~Parent~~the Company’s internal control over financial reporting in compliance with the requirements of Section 404 of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act for the year ended December 31, ~~2006~~2020, and such assessment concluded that such ~~controls were effective to provide reasonable assurance regarding~~ system was effective. Since January 1, 2020, each of the ~~reliability of Parent’s financial reporting~~ principal executive officer and the ~~preparation of Parent’s~~ principal financial ~~statements for external purposes in accordance with GAAP. Parent has disclosed, based on its assessment~~ officer of the ~~effectiveness of Parent’s internal control over financial reporting in compliance with~~ Company has made all certifications required by Rule 13a-14 or 15d-14 under the ~~requirements of Section 404~~ Exchange Act and Sections 302 and 906 of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ ~~Act for~~ Act. For purposes of this Agreement, “principal executive officer” and “principal financial officer” shall have the ~~year ended December 31, 2006,~~ meanings given to ~~Parent’s independent registered accounting firm and the audit committee of the Board of Directors of Parent (A) any significant deficiencies and material weaknesses~~ such terms in the ~~design~~ ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act. (e) The Company and its Subsidiaries do not have any liabilities or ~~operation~~ obligations of ~~internal control over financial reporting which are reasonably likely to adversely affect Parent’s ability to record~~any nature (whether absolute or contingent, ~~process~~asserted or unasserted, ~~summarize~~ known or unknown, primary or secondary, direct or indirect, and ~~report financial information and (B) any fraud,~~ whether or not ~~material~~accrued) except (i) as disclosed, reflected or reserved against in the unaudited balance sheet of which there is Parent’s Knowledge that involves management or other employees who have a significant role in Parent’s internal control over financial reporting for the year ended December 31, 2006. Parent any has made available to the Company ~~a summary~~ dated as of ~~any such disclosures made by management to such accounting firm or audit committee for the year ended December 31~~September 30, ~~2006. (c) The consolidated financial statements of Parent~~ 2021 and included in the ~~Parent~~ Company SEC ~~Documents~~ Financial Statements filed prior to the date hereof (the “~~Parent SEC Financial Statements~~Company Balance Sheet”) ~~(i) have been prepared in accordance with GAAP (except as may be otherwise indicated therein~~ or in the notes ~~thereto and except, in the case of unaudited consolidated quarterly statements, as permitted by Form 10-Q of the Exchange Act), applied on a consistent basis during the periods involved~~thereto, (ii) ~~complied~~ for liabilities and obligations incurred in ~~all material respects with published rules and regulations~~ the ordinary course of business since the date of the ~~SEC with respect thereto~~Company Balance Sheet, ~~and~~ (iii) fairly present in all material respects the consolidated financial position of Parent and its consolidated Parent Subsidiaries as of the respective dates thereof and the consolidated statements of income, cash flows and changes in stockholders’ equity for the respective periods then ended (subject, in the case of unaudited quarterly statements, to normal year-end audit adjustments and the absence of footnotes). (d) As of March 31, 2007, neither Parent nor any of the Parent Subsidiaries had any liabilities or obligations that would have been required by GAAP to be reflected in the consolidated balance sheet of Parent and the Parent Subsidiaries as of such date, except (i) for such liabilities and obligations ~~reflected~~incurred as expressly contemplated in connection with this Agreement, ~~reserved against~~ the Merger or ~~otherwise disclosed in~~ the ~~consolidated balance sheet of Parent and the Parent Subsidiaries as of such date (including the notes thereto) that is included in the Parent SEC Financial Statements~~ Transactions and (iiiv) for ~~such~~ liabilities and obligations ~~as would not be reasonably expected to have~~that, individually or in the aggregate, have not had, and would not reasonably be expected to have, a ~~Parent~~ Company Material Adverse Effect (it is understood and agreed that the representations and warranties contained in this Section 5.5(d): (x) do not apply to matters described in any of Section 5.4, the other provisions of this Section 5.5, and Sections 5.7, 5.8, 5.9, 5.10, 5.11 and 5.17 (which are addressed exclusively in those Sections) and (y) shall not be deemed breached if such breach relates to a matter which is covered by a representation or warranty of Parent and Merger Sub contained in this Article V (other than this Section 5.5(d)) that contains a “Parent’s Knowledge” qualification)Effect. (ef) ~~Since December 31, 2006~~ There are no unconsolidated Subsidiaries of the Company or any off-balance sheet arrangements of the type required to be disclosed pursuant to Item 303(b) of Regulation S-K promulgated by the ~~date of this Agreement, (i) neither Parent~~ SEC that have not been so disclosed in the Company SEC Documents. Neither the Company nor any ~~Parent Subsidiary nor~~of its Subsidiaries is a party to, or has any commitment to ~~Parent’s Knowledge~~become a party to any off-balance sheet joint venture, ~~any director, officer, auditor, accountant or representative of Parent~~ off-balance sheet partnership or any other “off-balance sheet arrangements” (as defined in Item 303(a) of Regulation S-K of the ~~Parent Subsidiaries has received any written complaint, allegation, assertion or claim~~ SEC) that ~~Parent or any of~~ is required to be disclosed in the Parent Subsidiaries has engaged in improper or illegal accounting or auditing practices or maintains improper or inadequate internal accounting controls relating to Parent and the Parent Subsidiaries, taken as a whole, (ii) no attorney representing Parent or any Parent Subsidiary has made a report to Parent’s chief legal officer, chief executive officer or Board of Directors (or any committee thereof) pursuant to the SEC’s Standards of Professional Conduct for Attorneys (17 CFR Part 205), and (iii) Parent has disclosed to its outside auditors any fraud, whether or not material, of which there is Parent’s Knowledge that involves management or other employees who have a significant role in Parent’s internal control over financial reportingSEC Documents.

Appears in 1 contract

Sources: Merger Agreement (GCP Applied Technologies Inc.)

SEC Documents; Financial Statements; Undisclosed Liabilities. (a) Parent has filed with the SEC, and has heretofore made available to the Company (by public filing with the SEC or otherwise) correct and complete copies of, all reports, schedules, ~~forms~~ forms, statements and ~~registration statements with the SEC~~ other documents required to be filed with the SEC by ~~it pursuant to the Securities Act and the Securities Act Rules, or the Exchange Act and the Exchange Act Rules, in each such case~~ Parent since January 1, ~~2005~~ 2003 (collectively~~, and in each case including all annexes and schedules thereto and documents incorporated by reference therein~~, the “Parent SEC Documents”). As of ~~their~~ its respective ~~dates (or if subsequently amended or superseded by a~~ filing ~~prior to the date of this Agreement~~date, ~~on the date of such filing), the~~ each Parent SEC ~~Documents~~ Document complied ~~as to form~~ in all material respects with the requirements of the Exchange Act and the Securities ~~Act or the Exchange~~ Act, as the case may be, as and to the extent applicable thereto, and the rules and regulations of the SEC promulgated thereunder applicable to such Parent SEC ~~Documents~~Document. Except to the extent that information contained in any Parent SEC Document filed and publicly available prior to the date of this Agreement has been revised or superseded by a later filed Parent SEC Document, ~~and~~ none of the Parent SEC Documents ~~as of such dates contained~~ contains any untrue statement of a material fact or ~~omitted~~ omits to state a any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading~~. To Parent’s Knowledge, as of the date hereof, none of the Parent SEC Documents is the subject of ongoing SEC review~~. (b) Parent is in compliance with, and has complied, in all material respects with (i) the applicable provisions of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002 and the related rules and regulations promulgated thereunder, and (ii) the applicable listing and corporate governance rules and regulations of NASDAQ. Parent has established and maintains disclosure controls and procedures and internal control over financial reporting (as such terms are defined in paragraphs (e) and (f), respectively, of Rule 13a-15 under the Exchange Act) as required by Rule 13a-15 under the Exchange Act. Parent’s disclosure controls and procedures are reasonably designed to ensure that all material information required to be disclosed by Parent in the reports that it files or furnishes under the Exchange Act is recorded, processed, summarized and reported within the time periods specified in the rules and forms of the SEC, and that all such material information is accumulated and communicated to the management of Parent as appropriate to allow timely decisions regarding required disclosure and to make the certifications required pursuant to Sections 302 and 906 of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act. The management of Parent has completed its assessment of the effectiveness of Parent’s internal control over financial reporting in compliance with the requirements of Section 404 of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act for the year ended December 31, 2006, and such assessment concluded that such controls were effective to provide reasonable assurance regarding the reliability of Parent’s financial reporting and the preparation of Parent’s financial statements for external purposes in accordance with GAAP. Parent has disclosed, based on its assessment of the effectiveness of Parent’s internal control over financial reporting in compliance with the requirements of Section 404 of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act for the year ended December 31, 2006, to Parent’s independent registered accounting firm and the audit committee of the Board of Directors of Parent (A) any significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect Parent’s ability to record, process, summarize and report financial information and (B) any fraud, whether or not material, of which there is Parent’s Knowledge that involves management or other employees who have a significant role in Parent’s internal control over financial reporting for the year ended December 31, 2006. Parent any has made available to the Company a summary of any such disclosures made by management to such accounting firm or audit committee for the year ended December 31, 2006. (c) The consolidated financial statements of Parent included in the Parent SEC Documents ~~(the “Parent SEC Financial Statements”) (i) have been prepared in accordance with GAAP (except~~ complied as may be otherwise indicated therein or in the notes thereto and except, in the case of unaudited consolidated quarterly statements, as permitted by Form 10-Q of the Exchange Act), applied on a consistent basis during the periods involved, (ii) complied to form in all material respects with the applicable accounting requirements and the published rules and regulations of the SEC with respect thereto, have been prepared in accordance with GAAP (except, in the case of unaudited statements, as permitted by the applicable rules and regulations of the SEC) applied on a consistent basis during the periods involved (~~iii~~except as may be indicated in the notes thereto) and fairly ~~present~~ presented, in ~~all material respects~~ accordance with the applicable requirements of GAAP and the applicable rules and regulations of the SEC, the consolidated financial position of Parent and its consolidated ~~Parent Subsidiaries~~ subsidiaries as of the ~~respective~~ dates thereof and the consolidated ~~statements~~ results of ~~income,~~ operations and cash flows ~~and changes in stockholders’ equity~~ for the ~~respective~~ periods then ended (subject, in the case of unaudited ~~quarterly~~ statements, to normal year-end audit ~~adjustments and the absence of footnotes~~adjustments). (d) As of March 31, 2007, neither Parent nor any of the Parent Subsidiaries had any liabilities or obligations that would have been required by GAAP to be reflected in the consolidated balance sheet of Parent and the Parent Subsidiaries as of such date, except (i) for such liabilities and obligations reflected, reserved against or otherwise disclosed in the consolidated balance sheet of Parent and the Parent Subsidiaries as of such date (including the notes thereto) that is included in the Parent SEC Financial Statements and (ii) for such liabilities and obligations as would not be reasonably expected to have, individually or in the aggregate, a Parent Material Adverse Effect (it is understood and agreed that the representations and warranties contained in this Section 5.5(d): (x) do not apply to matters described in any of Section 5.4, the other provisions of this Section 5.5, and Sections 5.7, 5.8, 5.9, 5.10, 5.11 and 5.17 (which are addressed exclusively in those Sections) and (y) shall not be deemed breached if such breach relates to a matter which is covered by a representation or warranty of Parent and Merger Sub contained in this Article V (other than this Section 5.5(d)) that contains a “Parent’s Knowledge” qualification). (e) Since December 31, 2006 to the date of this Agreement, (i) neither Parent nor any Parent Subsidiary nor, to Parent’s Knowledge, any director, officer, auditor, accountant or representative of Parent or any of the Parent Subsidiaries has received any written complaint, allegation, assertion or claim that Parent or any of the Parent Subsidiaries has engaged in improper or illegal accounting or auditing practices or maintains improper or inadequate internal accounting controls relating to Parent and the Parent Subsidiaries, taken as a whole, (ii) no attorney representing Parent or any Parent Subsidiary has made a report to Parent’s chief legal officer, chief executive officer or Board of Directors (or any committee thereof) pursuant to the SEC’s Standards of Professional Conduct for Attorneys (17 CFR Part 205), and (iii) Parent has disclosed to its outside auditors any fraud, whether or not material, of which there is Parent’s Knowledge that involves management or other employees who have a significant role in Parent’s internal control over financial reporting.

Appears in 1 contract

Sources: Merger Agreement (Ventas Inc)

SEC Documents; Financial Statements; Undisclosed Liabilities. (a) Parent has filed with or furnished to the SEC all reports, schedules, ~~forms~~ forms, statements, registration statements, prospectuses and ~~registration~~ other documents (including all exhibits and financial statements ~~with the SEC~~ required to be filed or furnished therewith and any other document or information required to be incorporated therein) required by ~~it pursuant to~~ the Securities Act ~~and the Securities Act Rules,~~ or the Exchange Act to be filed or furnished by Parent with the SEC since December 31, 2017 (together with any documents filed with or furnished to the SEC during such period by Parent to the SEC on a voluntary basis and excluding the ~~Exchange Act Rules, in each such case since January 1, 2005 (collectively, and in each case including all annexes and schedules thereto and documents incorporated by reference therein~~Form S-4, the “Parent SEC Documents”). As of ~~their~~ its respective ~~dates (or~~ date or, if ~~subsequently amended or superseded by a filing prior to~~ amended, as of the date of ~~this Agreement~~the last such amendment, ~~on the date of such filing), the~~ each Parent SEC ~~Documents~~ Document complied ~~as to form~~ when filed or furnished (or, if applicable, when amended) in all material respects with the ~~requirements of the~~ Securities ~~Act or~~ Act, the Exchange ~~Act, as the case may be,~~ Act and the ~~rules and regulations of the SEC promulgated thereunder applicable to such Parent SEC Documents~~▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act, and none of the Parent SEC Documents as when filed or furnished (or, in the case of ~~such dates~~ a registration statement filed under the Securities Act, at the time it was declared effective or subsequently amended) contained any untrue statement of a material fact or omitted 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 were made, not misleading. ~~To Parent’s Knowledge~~No Parent Subsidiary is, as or has at any time since December 31, 2017, been, subject to the periodic reporting requirements of the ~~date hereof~~Exchange Act or is or has been otherwise required to file any report, ~~none of~~ schedule, form, statement, registration statement, prospectus or other document with the ~~Parent SEC Documents is the subject of ongoing SEC review~~SEC. (b) The consolidated financial statements of Parent is included in the Parent SEC Documents (including, in each case, any notes or schedules thereto) and all related compilations, reviews and other reports issued by Parent’s accountants with respect thereto (the “Parent SEC Financial Statements”) (i) have been prepared from the books and records of the Parent Entities, which have been maintained in accordance with GAAP, (ii) were prepared in accordance with GAAP applied on a consistent basis during the periods involved (except as may be indicated in the notes thereto and except, in the case of the unaudited interim financial statements, as may be permitted by Form 10-Q and Regulation S-X under the Securities Act, and except that unaudited financial statements may not contain footnotes and are subject to normal and recurring year-end adjustments) and (iii) present fairly, in all material respects, the Parent Entities’ consolidated financial position as at the respective dates thereof and the Parent Entities’ consolidated results of operations and, where included, consolidated stockholders’ equity and consolidated cash flows for the respective periods indicated, in each case, in conformity with GAAP (except as may be indicated in the notes thereto and except, in the case of the unaudited interim financial statements, as may be permitted by Form 10-Q and Regulation S-X under the Securities Act, including normal and recurring year-end adjustments). Except as required by GAAP and disclosed in the Parent SEC Documents, between December 31, 2017 and the date hereof, Parent has not made or adopted any material change in its accounting methods, practices or policies. (c) Parent is, and since December 31, 2017, has been, in compliance ~~with, and has complied,~~ in all material respects with (i) the applicable provisions of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act ~~of 2002 and the related rules and regulations promulgated thereunder,~~ and (ii) the applicable listing and corporate governance rules and regulations of ~~NASDAQ~~NYSE. (d) Parent has established and maintains a system of internal control over financial reporting (within the meaning of Rules 13a-15(f) and 15d-15(f) under the Exchange Act) that is designed to provide reasonable assurance about the reliability of financial reporting and the preparation of financial statements in accordance with GAAP, including policies and procedures that (i) require the maintenance of records that in reasonable detail accurately and fairly reflect the transactions and dispositions of the assets of the Parent Entities, (ii) provide reasonable assurance that transactions are recorded as necessary to permit preparation of financial statements in accordance with GAAP, and that receipts and expenditures of the Parent Entities are being made only in accordance with appropriate authorizations of Parent’s management and the Parent Board and (iii) provide reasonable assurance about prevention or timely detection of unauthorized acquisition, use or disposition of the assets of the Parent Entities that could have a material effect on the financial statements. Parent has established and maintains a system of disclosure controls and procedures ~~and internal control over financial reporting~~ (as ~~such terms are~~ defined in ~~paragraphs (e~~Rules 13a-15(e) and ~~(f), respectively, of Rule 13a-15~~ 15d-15(e) under the Exchange Act) ~~as required by Rule 13a-15 under the Exchange Act. Parent’s disclosure controls and procedures are reasonably~~ designed to ensure that ~~all material~~ information required to be disclosed by Parent in the ~~reports that it files or furnishes under the Exchange Act~~ Parent SEC Documents is recorded, processed, summarized and reported within the time periods specified in the SEC’s rules and forms ~~of the SEC,~~ and that all such ~~material~~ information is accumulated and communicated to ~~the~~ Parent’s management ~~of Parent~~ as appropriate to allow timely decisions ~~regarding~~ about required disclosure and to make the certifications required pursuant to ~~Sections~~ Section 302 and Section 906 of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act. ~~The management of~~ Parent has completed its assessment of the effectiveness of Parent’s internal control over financial reporting in compliance with the requirements of Section 404 of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act for the year ended December 31, 2006, and such assessment concluded that such controls were effective to provide reasonable assurance regarding the reliability of Parent’s financial reporting and the preparation of Parent’s financial statements for external purposes in accordance with GAAP. Parent has disclosed, based on its assessment of the effectiveness of Parent’s internal control over financial reporting in compliance with the requirements of Section 404 of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act for the year ended December 31, 2006, disclosed to Parent’s ~~independent registered accounting firm~~ outside auditors and the audit committee of the Parent Board ~~of Directors of Parent~~ (A) any significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting (as defined in Rule 13a-15(f) under the Exchange Act) which are reasonably likely to adversely affect Parent’s ability to record, process, summarize and report financial information and (B) any fraud, whether or not material, ~~of which there is~~ that involves Parent’s Knowledge that involves management or other employees who have a significant role in Parent’s internal control over financial reporting for the year ended December 31, 2006. Parent any has made available to the Company a summary of any such disclosures made by management to such accounting firm or audit committee for the year ended December 31, 2006. (c) The consolidated financial statements of Parent included in the Parent SEC Documents (the “Parent SEC Financial Statements”) (i) have been prepared in accordance with GAAP (except as may be otherwise indicated therein or in the notes thereto and except, in the case of unaudited consolidated quarterly statements, as permitted by Form 10-Q of the Exchange Act), applied on a consistent basis during the periods involved, (ii) complied in all material respects with published rules and regulations of the SEC with respect thereto, and (iii) fairly present in all material respects the consolidated financial position of Parent and its consolidated Parent Subsidiaries as of the respective dates thereof and the consolidated statements of income, cash flows and changes in stockholders’ equity for the respective periods then ended (subject, in the case of unaudited quarterly statements, to normal year-end audit adjustments and the absence of footnotes). (d) As of March 31, 2007, neither Parent nor any of the Parent Subsidiaries had any liabilities or obligations that would have been required by GAAP to be reflected in the consolidated balance sheet of Parent and the Parent Subsidiaries as of such date, except (i) for such liabilities and obligations reflected, reserved against or otherwise disclosed in the consolidated balance sheet of Parent and the Parent Subsidiaries as of such date (including the notes thereto) that is included in the Parent SEC Financial Statements and (ii) for such liabilities and obligations as would not be reasonably expected to have, individually or in the aggregate, a Parent Material Adverse Effect (it is understood and agreed that the representations and warranties contained in this Section 5.5(d): (x) do not apply to matters described in any of Section 5.4, the other provisions of this Section 5.5, and Sections 5.7, 5.8, 5.9, 5.10, 5.11 and 5.17 (which are addressed exclusively in those Sections) and (y) shall not be deemed breached if such breach relates to a matter which is covered by a representation or warranty of Parent and Merger Sub contained in this Article V (other than this Section 5.5(d)) that contains a “Parent’s Knowledge” qualification). (e) Since December 31, 2006 to the date of this Agreement, (i) neither Parent nor any Parent Subsidiary nor, to Parent’s Knowledge, any director, officer, auditor, accountant or representative of Parent or any of the Parent Subsidiaries has received any written complaint, allegation, assertion or claim that Parent or any of the Parent Subsidiaries has engaged in improper or illegal accounting or auditing practices or maintains improper or inadequate internal accounting controls relating to Parent and the Parent Subsidiaries, taken as a whole, (ii) no attorney representing Parent or any Parent Subsidiary has made a report to Parent’s chief legal officer, chief executive officer or Board of Directors (or any committee thereof) pursuant to the SEC’s Standards of Professional Conduct for Attorneys (17 CFR Part 205), and (iii) Parent has disclosed to its outside auditors any fraud, whether or not material, of which there is Parent’s Knowledge that involves management or other employees who have a significant role in Parent’s internal control over financial reporting. There are no “significant deficiencies” or “material weaknesses” (as defined by the Public Company Accounting Oversight Board) in the design or operation of Parent’s internal controls and procedures that would reasonably be expected to adversely affect Parent’s ability to record, process, summarize and report financial data. As of the date hereof, there are no outstanding or unresolved comments in comment letters received from the SEC’s staff related to any Parent SEC Documents, to Parent’s Knowledge none of the Parent SEC Documents is the subject of ongoing SEC review, and there are no formal internal investigations or, to Parent’s Knowledge, any formal or informal SEC inquiries or investigations or other inquiries or investigations by Governmental Authorities that are pending or threatened in writing, in each case under this sentence, related to any accounting practices of any Parent Entity. (e) Since December 31, 2017, no Parent Entity or, to Parent’s Knowledge, any of their respective Representatives has received any bona fide material complaint, allegation, assertion or claim, whether written or oral, related to the accounting or auditing practices, procedures, methodologies or methods of any Parent Entity or their respective internal accounting controls, including any bona fide material complaint, allegation, assertion or claim that any Parent Entity has engaged in questionable accounting or auditing practices. (f) No Parent Entity is a party to any Contract, arrangement or transaction with (i) any Affiliate (except for any Parent Entity), including any director or officer, of any Parent Entity, or (ii) any Affiliate of, or any “associate” or any member of the “immediate family” (as such terms are defined in Rules 12b-2 and 16a-1 under the Exchange Act) of, any such Affiliate, in each case, that is required to be disclosed by Parent under Item 404 of Regulation S-K under the Exchange Act. (g) No Parent Entity has any Liabilities, except (i) as reflected or specifically reserved against in the most recent audited balance sheet included in the Parent SEC Financial Statements, (ii) for any Liability (except for any Liability for any breach of Contract or breach of warranty, tort or violation of Law or related to any Action or that is an environmental Liability or clean-up obligation) incurred in the Ordinary Course of Business since the date of the most recent audited balance sheet included in the Parent SEC Financial Statements or (iii) for any Liability that is not and would not reasonably be expected to result in, individually or in the aggregate, a Parent Material Adverse Effect. No Parent Entity is a party to, or has any commitment to become a party to, any joint venture, off-balance sheet partnership or any similar Contract or arrangement (including any Contract or arrangement related to any transaction or relationship between or among any Parent Entity, on the one hand, and any unconsolidated Affiliate, including any structured finance, special purpose or limited purpose entity or Person, on the other hand, or any material “off balance sheet arrangement” (as defined in Item 303(a) of Regulation S-K under the Exchange Act)), in each case, that is required to be disclosed pursuant to Item 303(a) of Regulation S-K under the Exchange Act.

Appears in 1 contract

Sources: Merger Agreement (Performance Food Group Co)

SEC Documents; Financial Statements; Undisclosed Liabilities. (a) Parent has filed all material reports, schedules, ~~forms~~ forms, statements and ~~registration statements~~ other documents with the SEC required to be filed by it Parent pursuant to the Securities Act of 1933 (together with the rules and regulations promulgated thereunder, the “Securities ~~Act Rules,~~ Act”) or the Exchange Act ~~and the Exchange Act Rules, in each such case~~ since ~~January~~ October 1, ~~2005~~ 2016 (~~collectively, and in each case including all annexes and schedules thereto and documents incorporated by reference therein,~~ the “~~Parent~~ SEC Documents”). As of their respective dates ~~(or if subsequently amended or superseded by a filing prior to the date~~ of ~~this Agreement, on the date of such~~ filing), the ~~Parent~~ SEC Documents complied as to form in all material respects with the requirements of the Securities ~~Act or~~ Act, the Exchange Act, and the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002, as the case may be, and the rules and regulations of the SEC promulgated thereunder applicable ~~to such Parent SEC Documents~~thereto, and except to the extent amended or superseded by a subsequent filing with the SEC prior to the date of this Agreement, as of such respective dates, none of the ~~Parent~~ SEC Documents ~~as of such dates~~ contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading. ~~To Parent’s Knowledge, as~~ There are no outstanding or unresolved comments in comment letters from the SEC staff with respect to any of the ~~date hereof~~SEC Documents. To the Knowledge of Seller, none of the ~~Parent~~ SEC Documents is the subject of ongoing SEC ~~review~~review or outstanding SEC investigation. (b) Each of the audited consolidated financial statements and the unaudited quarterly financial statements (including, in each case, the notes thereto) of Parent is included in ~~compliance with, and has complied,~~ the SEC Documents (i) when filed complied as to form in all material respects with ~~(i)~~ the applicable provisions of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002 and the related rules and regulations promulgated thereunder, and (ii) the applicable listing and corporate governance rules and regulations of NASDAQ. Parent has established and maintains disclosure controls and procedures and internal control over financial reporting (as such terms are defined in paragraphs (e) and (f), respectively, of Rule 13a-15 under the Exchange Act) as required by Rule 13a-15 under the Exchange Act. Parent’s disclosure controls and procedures are reasonably designed to ensure that all material information required to be disclosed by Parent in the reports that it files or furnishes under the Exchange Act is recorded, processed, summarized and reported within the time periods specified in the rules and forms of the SEC, and that all such material information is accumulated and communicated to the management of Parent as appropriate to allow timely decisions regarding required disclosure and to make the certifications required pursuant to Sections 302 and 906 of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act. The management of Parent has completed its assessment of the effectiveness of Parent’s internal control over financial reporting in compliance with the requirements of Section 404 of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act for the year ended December 31, 2006, and such assessment concluded that such controls were effective to provide reasonable assurance regarding the reliability of Parent’s financial reporting and the preparation of Parent’s financial statements for external purposes in accordance with GAAP. Parent has disclosed, based on its assessment of the effectiveness of Parent’s internal control over financial reporting in compliance with the requirements of Section 404 of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act for the year ended December 31, 2006, to Parent’s independent registered accounting firm and the audit committee of the Board of Directors of Parent (A) any significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect Parent’s ability to record, process, summarize and report financial information and (B) any fraud, whether or not material, of which there is Parent’s Knowledge that involves management or other employees who have a significant role in Parent’s internal control over financial reporting for the year ended December 31, 2006. Parent any has made available to the Company a summary of any such disclosures made by management to such accounting firm or audit committee for the year ended December 31, 2006. (c) The consolidated financial statements of Parent included in the Parent SEC Documents (the “Parent SEC Financial Statements”) (i) have been prepared in accordance with GAAP (except as may be otherwise indicated therein or in the notes thereto and except, in the case of unaudited consolidated quarterly statements, as permitted by Form 10-Q of the Exchange Act), applied on a consistent basis during the periods involved, (ii) complied in all material respects with published rules and regulations of the SEC with respect thereto, have been prepared in all material respects in accordance with GAAP (except, in the case of unaudited quarterly statements, to the extent permitted by Form 10-Q of the SEC or other rules and regulations of the SEC) applied on a consistent basis during the periods involved (except as may be indicated in the notes thereto), (ii) were prepared in accordance with the books and records of Seller (which books and records are complete and correct in all material respects) and (iii) fairly present in all material respects the consolidated financial position of ~~Parent and its consolidated Parent Subsidiaries~~ Seller as of the respective ~~dates thereof~~ dates, and for the periods referred to, therein and the consolidated ~~statements~~ results of ~~income,~~ its operations and cash flows ~~and changes in stockholders’ equity~~ for the ~~respective~~ periods then ended (subject, in the case of unaudited quarterly statements, to normal year-end ~~audit~~ adjustments and the absence of footnotes). (dc) ~~As of March 31, 2007, neither Parent nor any~~ Schedule 4.4(c) of the ~~Parent Subsidiaries had any liabilities or obligations that would have been required by GAAP to be reflected in the consolidated balance sheet~~ Disclosure Schedules sets forth a schedule of ~~Parent and the Parent Subsidiaries as~~ all Indebtedness of ~~such date~~Seller, ~~except~~ including (i) ~~for such liabilities and obligations reflected, reserved against or otherwise disclosed in~~ the ~~consolidated balance sheet of Parent and the Parent Subsidiaries~~ amount outstanding as of ~~such~~ the date ~~(including the notes thereto) that is included in the Parent SEC Financial Statements and~~ hereof, (ii) ~~for~~ the details of any limitations or penalties relating to prepayment of such ~~liabilities and obligations as would not be reasonably expected~~ Indebtedness, (iii) the Persons to ~~have, individually or in the aggregate, a Parent Material Adverse Effect (it~~ whom such Indebtedness is ~~understood and agreed that the representations and warranties contained in this Section 5.5(d): (x) do not apply to matters described in any of Section 5.4, the other provisions of this Section 5.5~~owed, and ~~Sections 5.7~~(iv) a general description of the nature of such Indebtedness, ~~5.8, 5.9, 5.10, 5.11~~ and ~~5.17 (which are addressed exclusively in those Sections) and (y) shall~~ whether or not ~~be deemed breached if~~ such ~~breach relates to a matter which~~ Indebtedness is ~~covered~~ secured by ~~a representation or warranty of Parent and Merger Sub contained in this Article V (other than this Section 5.5(d)) that contains a “Parent’s Knowledge” qualification)~~any Liens. (ed) ~~Since December 31~~There are no Liabilities or obligations (whether absolute, ~~2006~~ accrued, contingent, fixed or otherwise) of any nature of Seller or otherwise relating to the Business or the Purchased Assets, except for Liabilities and obligations that (i) if required under GAAP, as in effect on the date of this Agreement, to be reflected on a consolidated balance sheet of Seller (iincluding the notes thereto), are so reflected or reserved against in the most recent consolidated balance sheet of Seller (or the notes thereto) ~~neither Parent nor any Parent Subsidiary nor~~included in the SEC Documents (the “Balance Sheet”), ~~to Parent’s Knowledge~~(ii) were incurred since the date of such balance sheet in the Ordinary Course of Business, ~~any director~~(iii) arise under, ~~officer~~or are expressly contemplated by, ~~auditor, accountant or representative of Parent~~ this Agreement or any of the ~~Parent Subsidiaries has received~~ other Transaction Documents, (iv) any ~~written complaint~~Excluded Liabilities not in excess of $50,000 individually or $100,000 in the aggregate, ~~allegation~~(v) executory liabilities and obligations under Contracts that are to be performed after the Effective Time (none of which relates to any failure to perform, ~~assertion~~ improper performance, warranty or ~~claim that Parent~~ other breach, default or violation by the Seller or any of its Affiliates occurring prior to or as of the Parent Subsidiaries has engaged in improper or illegal accounting or auditing practices or maintains improper or inadequate internal accounting controls relating to Parent and the Parent Subsidiaries, taken as a whole, (iiClosing) no attorney representing Parent or any Parent Subsidiary has made a report to Parent’s chief legal officer, chief executive officer or Board of Directors (or any committee thereof) pursuant to the SEC’s Standards of Professional Conduct for Attorneys (17 CFR Part 205), and (~~iii~~vi) ~~Parent has disclosed to its outside auditors any fraud, whether or not material,~~ liabilities and obligations set forth in Schedule 4.4(d) of ~~which there is Parent’s Knowledge that involves management or other employees who have a significant role in Parent’s internal control over financial reporting~~the Disclosure Schedules.

Appears in 1 contract

Sources: Asset Purchase Agreement

SEC Documents; Financial Statements; Undisclosed Liabilities. (a) ~~Parent~~ The Company has filed or furnished all reports, schedules, ~~forms~~ forms, statements, registration statements, prospectuses and ~~registration statements with the SEC~~ other documents required to be filed or furnished by ~~it pursuant to~~ the Company with the SEC under the Securities Act ~~and the Securities Act Rules,~~ or the Exchange Act ~~and~~ since the ~~Exchange Act Rules, in each such case since January 1, 2005~~ Applicable Date (~~collectively, and in each case including all annexes and schedules thereto and documents incorporated by reference therein,~~ the “~~Parent~~ Company SEC Documents”). None of the Subsidiaries of the Company is required to make any filings with the SEC. (b) As of ~~their~~ its respective ~~dates~~ filing date (or or, if ~~subsequently~~ amended or superseded ~~by a filing~~ prior to the date of this Agreement, on the date of such filing), ~~the Parent~~ each Company SEC ~~Documents complied~~ Document complied, as to form in all material respects with the requirements of the ~~Securities~~ NASDAQ, the Exchange Act or the ~~Exchange~~ Securities Act, as the case may be, and the rules and regulations of the SEC promulgated thereunder applicable to such ~~Parent~~ Company SEC ~~Documents~~Document. As of its respective filing date (or, ~~and none~~ if amended or superseded prior to the date of this Agreement, on the ~~Parent SEC Documents as~~ date of such ~~dates contained~~ filing), each Company SEC Document did not contain any untrue statement of a material fact or ~~omitted~~ 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 were made, not misleading. ~~To Parent’s Knowledge, as~~ As of the date ~~hereof~~of this Agreement, ~~none~~ there are no outstanding or unresolved comments received from the SEC with respect to any Company SEC Document that would be required to be disclosed under Item 1B of Form 10-K under the ~~Parent SEC Documents is the subject of ongoing SEC review~~Exchange Act. (bc) ~~Parent is~~ The audited consolidated financial statements and unaudited consolidated interim quarterly financial statements of the Company included or incorporated by reference in ~~compliance with~~the Company SEC Documents (including, ~~and has complied~~in each case, any notes or schedules thereto) (the “Company SEC Financial Statements”) (i) as of their respective dates of filing with the SEC complied as to form in all material respects with ~~(i)~~ the ~~applicable provisions of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002 and the related~~ published rules and regulations ~~promulgated thereunder,~~ of the SEC with respect thereto and (ii) fairly present, in all material respects, the ~~applicable listing~~ financial condition and ~~corporate governance rules~~ the results of operations, cash flows and ~~regulations~~ changes in stockholders’ equity of ~~NASDAQ. Parent has established~~ the Company and ~~maintains disclosure controls~~ its Subsidiaries (on a consolidated basis) as of the respective dates of and ~~procedures~~ for the periods referred to in the Company SEC Financial Statements, and ~~internal control over financial reporting~~ were prepared in accordance with GAAP consistently applied (except as ~~such terms are defined~~ may be indicated in ~~paragraphs (e) and (f)~~the notes thereto or, ~~respectively~~in the case of unaudited statements, ~~of Rule 13a-15~~ as permitted by Form 10-Q under the Exchange Act), subject, in the case of unaudited interim Company SEC Financial Statements, to normal year-end adjustments and the absence of notes. (d) as The Company has timely filed all certifications and statements required by (i) Rule ~~13a-15~~ 13a-14 and Rule 15d-14 under the Exchange Act. Parent’s disclosure controls and procedures are reasonably designed to ensure that all material information required to be disclosed by Parent in the reports that it files or furnishes under the Exchange Act is recorded, processed, summarized and reported within the time periods specified in the rules and forms of the SEC, and that all such material information is accumulated and communicated to the management of Parent as appropriate to allow timely decisions regarding required disclosure and to make the certifications required pursuant to ; (ii) 18 U.S.C. Section 1350 (Sections 302 and 906 of the ▇S▇▇▇▇▇▇▇-▇▇▇▇▇ Act~~. The management of Parent has completed its assessment of~~ ); and (iii) any related rules and regulations promulgated by the ~~effectiveness of Parent’s internal control over financial reporting in compliance~~ SEC or the NASDAQ with ~~the requirements of Section 404 of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act for the year ended December 31, 2006~~respect to all applicable Company SEC Documents, and the statements contained in any such ~~assessment concluded that such~~ certifications are complete and correct as of their respective dates in all material respects. (e) At all times since the Applicable Date, the Company has maintained disclosure controls ~~were effective~~ and procedures required by Rule 13a-15 or Rule 15d-15 under the Exchange Act designed to provide reasonable assurance ~~regarding the reliability of Parent’s financial reporting and the preparation of Parent’s financial statements for external purposes~~ that: (i) transactions are executed in accordance with ~~GAAP. Parent has disclosed, based on its assessment~~ management’s general or specific authorization; (ii) transactions are recorded as necessary to permit preparation of financial statements in conformity with GAAP and to maintain accountability for assets; (iii) access to assets is permitted only in accordance with management’s general or specific authorization; and (iv) the ~~effectiveness of Parent’s internal control over financial reporting in compliance~~ recorded accountability for assets is compared with the ~~requirements of Section 404 of~~ existing assets at reasonable intervals and appropriate action is taken with respect to any differences. Since the ~~▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act for the year ended December 31~~Applicable Date, ~~2006, to Parent’s independent registered accounting firm and the audit committee of the Board of Directors of Parent~~ (Ai) ~~any~~ there have been no significant deficiencies ~~and~~ or material weaknesses in the design or operation of internal ~~control~~ controls over financial reporting (whether or not remediated) which ~~are~~ would reasonably ~~likely~~ be expected to adversely affect ~~Parent~~the Company’s ability to record, process, summarize and report financial ~~information~~ information, (ii) there has been no change in the Company’s internal control over financial reporting that has materially affected, or is reasonably likely to materially affect, the Company’s internal control over financial reporting, and (Biii) neither the Company nor the Company’s independent registered accountant has identified or been made aware of any ~~fraud, whether or not material, of which there is Parent’s Knowledge~~ fraud that involves the management or other employees of the Company who have a significant role in ~~Parent~~the Company’s internal ~~control~~ controls over financial ~~reporting for~~ reporting. The Company and each of its Subsidiaries maintain a system of disclosure controls and procedures (as defined in Rule 13a-15 or Rule 15d-15 under the ~~year ended December 31~~Exchange Act) that is designed to ensure that all material information required to be disclosed by the Company in the reports that it files or submits under the Exchange Act is recorded, ~~2006. Parent any has made available~~ processed, summarized and reported, within the time period’s specified in the SEC’s rules and forms, and is accumulated and communicated to the ~~Company a summary~~ Company’s management, including its principal executive officer and principal financial officer, as appropriate, to allow timely decisions regarding disclosure. There are no outstanding loans or other extensions of ~~any such disclosures~~ credit made by ~~management~~ the Company or any of its Subsidiaries to ~~such accounting firm~~ any executive officer (as defined in Rule 3b-7 under the Exchange Act) or ~~audit committee for~~ director of the ~~year ended December 31, 2006~~Company. (cf) The consolidated financial statements of Parent included in the Parent SEC Documents (the “Parent SEC Financial Statements”) (i) have been prepared in accordance with GAAP (except as may be otherwise indicated therein or in the notes thereto and except, in the case of unaudited consolidated quarterly statements, as permitted by Form 10-Q of the Exchange Act), applied on a consistent basis during the periods involved, (ii) complied in all material respects with published rules and regulations of the SEC with respect thereto, and (iii) fairly present in all material respects the consolidated financial position of Parent Company and its ~~consolidated Parent~~ Subsidiaries as of the respective dates thereof and the consolidated statements of income, cash flows and changes in stockholders’ equity for the respective periods then ended (subject, in the case of unaudited quarterly statements, to normal year-end audit adjustments and the absence of footnotes). (d) As of March 31, 2007, neither Parent nor any of the Parent Subsidiaries had do not have any liabilities or obligations ~~that would have been~~ of any nature (whether absolute or contingent, asserted or unasserted, known or unknown, primary or secondary, direct or indirect, and whether or not accrued), required by GAAP to be reflected ~~in the~~ or reserved on a consolidated balance sheet of ~~Parent and~~ the ~~Parent Subsidiaries as of such date,~~ Company (or the notes thereto) except (i) ~~for such liabilities and obligations reflected~~as disclosed, reflected or reserved against ~~or otherwise disclosed~~ in the ~~consolidated~~ most recent balance sheet ~~of Parent and~~ included in the ~~Parent Subsidiaries as of such date (including~~ Company SEC Financial Statements or the notes thereto~~) that is included in the Parent SEC Financial Statements and~~ , (ii) for ~~such~~ liabilities and obligations ~~as would not be reasonably expected~~ incurred in the ordinary course of business since the date of the most recent balance sheet included in the Company SEC Financial Statements (but excluding violations of law, breaches of Contracts or Permits, torts or infringement), none of which are material to ~~have~~the Company, (iii) for liabilities and obligations arising out of or in connection with this Agreement, the Merger or the Transactions and (iv) for liabilities and obligations that, individually or in the aggregate, have not had, and would not reasonably be expected to have, a ~~Parent~~ Company Material Adverse Effect (it is understood and agreed that the representations and warranties contained in this Section 5.5(d): (x) do not apply to matters described in any of Section 5.4, the other provisions of this Section 5.5, and Sections 5.7, 5.8, 5.9, 5.10, 5.11 and 5.17 (which are addressed exclusively in those Sections) and (y) shall not be deemed breached if such breach relates to a matter which is covered by a representation or warranty of Parent and Merger Sub contained in this Article V (other than this Section 5.5(d)) that contains a “Parent’s Knowledge” qualification)Effect. (e) Since December 31, 2006 to the date of this Agreement, (i) neither Parent nor any Parent Subsidiary nor, to Parent’s Knowledge, any director, officer, auditor, accountant or representative of Parent or any of the Parent Subsidiaries has received any written complaint, allegation, assertion or claim that Parent or any of the Parent Subsidiaries has engaged in improper or illegal accounting or auditing practices or maintains improper or inadequate internal accounting controls relating to Parent and the Parent Subsidiaries, taken as a whole, (ii) no attorney representing Parent or any Parent Subsidiary has made a report to Parent’s chief legal officer, chief executive officer or Board of Directors (or any committee thereof) pursuant to the SEC’s Standards of Professional Conduct for Attorneys (17 CFR Part 205), and (iii) Parent has disclosed to its outside auditors any fraud, whether or not material, of which there is Parent’s Knowledge that involves management or other employees who have a significant role in Parent’s internal control over financial reporting.

Appears in 1 contract

Sources: Merger Agreement (Waste Management Inc)

SEC Documents; Financial Statements; Undisclosed Liabilities. (a) ~~Parent~~ Except as identified in Section 4.06(a) of the Company Disclosure Letter, the Company has timely filed ~~all reports~~with, ~~schedules~~or furnished to, ~~forms and registration statements with~~ the SEC required to be filed by it pursuant to the Securities Act and the Securities Act Rules, or the Exchange Act and the Exchange Act Rules, in each such case since January 1, 2005 (collectively, and in each case including all ~~annexes and schedules thereto and documents incorporated by reference therein, the “Parent~~ Company SEC Documents”). As of ~~their~~ its respective ~~dates (~~date, each Company SEC Document, including any financial statements or ~~if subsequently amended or superseded by a filing prior to the date of this Agreement~~schedules included therein, ~~on the date of such filing), the Parent SEC Documents~~ complied ~~as to form~~ in all material respects with the requirements of the Securities Act or and the Exchange Act, as the case may be, and the rules and regulations of the SEC promulgated thereunder applicable to such ~~Parent~~ Company SEC Documents, and ~~none of the Parent SEC Documents as of such dates contained~~ did not contain any untrue statement of a material fact or ~~omitted~~ omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading. ~~To Parent’s Knowledge, as of~~ Except to the ~~date hereof~~extent that information contained in any Filed Company SEC Document has been revised or superseded by a later-filed Filed Company SEC Document, none of the ~~Parent~~ Company SEC Documents contains any untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading. None of the Company Subsidiaries is required to file any reports with the ~~subject of ongoing SEC review~~SEC. (b) ~~Parent is in compliance with~~The principal executive officer and principal financial officer of the Company have made all certifications required by the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002 (the “▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act”) and any related rules and regulations promulgated thereunder by the SEC, and ~~has complied,~~ the statements contained in all such certifications were as of the respective dates made, and are, complete and correct. Neither the Company nor any of its officers has received notice from the SEC or the Nasdaq National Market questioning or challenging the accuracy, completeness, content, form or manner of filing or submission of such certifications. The Company is, and through the Closing Date will be, otherwise in material ~~respects~~ compliance with ~~(i) the~~ all applicable effective provisions of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act ~~of 2002~~ and ~~the related rules and regulations promulgated thereunder, and (ii)~~ the applicable listing and corporate governance rules and regulations of NASDAQ. Parent has established and maintains disclosure controls and procedures and internal control over financial reporting (as such terms are defined in paragraphs (e) and (f), respectively, of Rule 13a-15 under the Exchange Act) as required by Rule 13a-15 under the Exchange Act. Parent’s disclosure controls and procedures are reasonably designed to ensure that all material information required to be disclosed by Parent in the reports that it files or furnishes under the Exchange Act is recorded, processed, summarized and reported within the time periods specified in the rules and forms of the SEC, and that all such material information is accumulated and communicated to the management of Parent as appropriate to allow timely decisions regarding required disclosure and to make the certifications required pursuant to Sections 302 and 906 of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act. The management of Parent has completed its assessment of the effectiveness of Parent’s internal control over financial reporting in compliance with the requirements of Section 404 of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act for the year ended December 31, 2006, and such assessment concluded that such controls were effective to provide reasonable assurance regarding the reliability of Parent’s financial reporting and the preparation of Parent’s financial statements for external purposes in accordance with GAAP. Parent has disclosed, based on its assessment of the effectiveness of Parent’s internal control over financial reporting in compliance with the requirements of Section 404 of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act for the year ended December 31, 2006, to Parent’s independent registered accounting firm and the audit committee of the Board of Directors of Parent (A) any significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect Parent’s ability to record, process, summarize and report financial information and (B) any fraud, whether or not material, of which there is Parent’s Knowledge that involves management or other employees who have a significant role in Parent’s internal control over financial reporting for the year ended December 31, 2006. Parent any has made available to the Company a summary of any such disclosures made by management to such accounting firm or audit committee for the year ended December 31, 2006Nasdaq National Market. (c) The ~~consolidated financial statements~~ Financial Statements comply as to form in all material respects with applicable accounting requirements and the published rules and regulations of ~~Parent included in~~ the ~~Parent~~ SEC ~~Documents (the “Parent SEC Financial Statements”) (i)~~ with respect thereto, have been prepared in accordance with GAAP (~~except as may be otherwise indicated therein or in the notes thereto and~~ except, in the case of unaudited ~~consolidated quarterly~~ statements, as permitted by Form 10-Q of the ~~Exchange Act),~~ SEC) applied on a consistent basis during the periods ~~involved,~~ involved (iiexcept as may be indicated in the notes thereto) ~~complied in all material respects with published rules~~ and ~~regulations of the SEC with respect thereto, and (iii)~~ fairly present ~~in all material respects~~ the consolidated financial position of ~~Parent~~ the Company and its consolidated ~~Parent~~ Subsidiaries as of the ~~respective~~ dates thereof and the consolidated ~~statements~~ results of ~~income,~~ their operations and cash flows ~~and changes in stockholders’ equity~~ for the ~~respective~~ periods then ended (subject, in the case of unaudited ~~quarterly~~ statements, to normal year-end audit ~~adjustments and the absence of footnotes~~adjustments). (d) As None of ~~March 31, 2007, neither Parent nor~~ the Company or any of the ~~Parent~~ Company Subsidiaries ~~had~~ have any liabilities or obligations ~~that would have been~~ of any nature, whether accrued, absolute, contingent or otherwise, asserted or unasserted, due or to become due, known or unknown, and whether or not required ~~by GAAP~~ to be ~~reflected in the consolidated~~ disclosed on a balance sheet ~~of Parent and the Parent Subsidiaries as of such date~~prepared in accordance with GAAP, except liabilities (i) ~~for such liabilities and obligations reflected,~~ stated or adequately reserved against ~~or otherwise disclosed~~ in the ~~consolidated balance sheet~~ Financial Statements of ~~Parent and~~ the ~~Parent Subsidiaries as of such date (including the notes thereto) that is~~ Company included in the ~~Parent~~ Filed Company SEC ~~Financial Statements and~~ Documents, (ii) ~~for~~ disclosed in any Filed Company SEC Document, to the extent such liabilities are disclosed with reasonable specificity, (iii) disclosed in Section 4.06(d) of the Company Disclosure Letter, or (iv) incurred in the ordinary and ~~obligations as~~ usual course of business since the date of the most recent balance sheet included in the Filed Company SEC Documents that have not had and would not reasonably be ~~reasonably~~ expected to have, individually or in the aggregate, a ~~Parent~~ Company Material Adverse Effect (it is understood and agreed that the representations and warranties contained in this Section 5.5(d): (x) do not apply to matters described in any of Section 5.4, the other provisions of this Section 5.5, and Sections 5.7, 5.8, 5.9, 5.10, 5.11 and 5.17 (which are addressed exclusively in those Sections) and (y) shall not be deemed breached if such breach relates to a matter which is covered by a representation or warranty of Parent and Merger Sub contained in this Article V (other than this Section 5.5(d)) that contains a “Parent’s Knowledge” qualification)Effect. (e) Since December 31, 2006 to the date of this Agreement, (i) neither Parent nor any Parent Subsidiary nor, to Parent’s Knowledge, any director, officer, auditor, accountant or representative of Parent or any of the Parent Subsidiaries has received any written complaint, allegation, assertion or claim that Parent or any of the Parent Subsidiaries has engaged in improper or illegal accounting or auditing practices or maintains improper or inadequate internal accounting controls relating to Parent and the Parent Subsidiaries, taken as a whole, (ii) no attorney representing Parent or any Parent Subsidiary has made a report to Parent’s chief legal officer, chief executive officer or Board of Directors (or any committee thereof) pursuant to the SEC’s Standards of Professional Conduct for Attorneys (17 CFR Part 205), and (iii) Parent has disclosed to its outside auditors any fraud, whether or not material, of which there is Parent’s Knowledge that involves management or other employees who have a significant role in Parent’s internal control over financial reporting.

Appears in 1 contract

Sources: Merger Agreement (CFC International Inc)

SEC Documents; Financial Statements; Undisclosed Liabilities. (a) ~~Parent has filed~~ The McNeil Partnerships that are req▇▇▇▇▇ to file reports with the SEC pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), are identified on Schedule 4.5(a) of the Seller Disclosure Letter (collectively, the "Public McNeil Partnerships"), and have ▇▇▇▇▇ all required reports, schedules, ~~forms~~ forms, statements and ~~registration statements~~ other documents with the SEC ~~required to be filed by it pursuant to the Securities Act and the Securities Act Rules, or the Exchange Act and the Exchange Act Rules, in each such case~~ since January 1, ~~2005~~ 1996 (collectively, including any such reports filed in the period subsequent to the date hereof but prior to the Closing Date, and ~~in each case including all annexes and schedules thereto and documents incorporated by reference therein~~as amended, the ~~“Parent~~ "Seller SEC Documents”," and the financial statements of the Public McNeil Partnerships included i▇ ▇▇▇ Seller SEC Documents, the "Public McNeil Partnership Statements"). As ▇▇▇ of the Seller SEC Documents (other than preliminary material), as of their respective ~~dates~~ filing dates, complied (~~or if subsequently amended or superseded by a filing~~ or, in the case of any Seller SEC Documents filed in the period subsequent to the date hereof but prior to the ~~date~~ Closing Date, will comply as of ~~this Agreement, on the date of such filing), the Parent SEC Documents complied as to form~~ their respective filing dates) in all material respects with ~~the~~ all applicable requirements of the Securities Act or of 1933, as amended (the "Securities Act"), and the Exchange Act, ~~as the case may be~~and, ~~and~~ in each case, the rules and regulations ~~of the SEC~~ promulgated thereunder applicable to such ~~Parent~~ Seller SEC Documents~~, and none~~ . None of the ~~Parent~~ Seller SEC Documents as at the time of ~~such dates~~ filing contained (or, in the case of any Seller SEC Documents filed in the period subsequent to the date hereof but prior to the Closing Date, will contain at the time of filing) any untrue statement of a material fact or at the time of filing omitted (or, in the case of any Seller SEC Documents filed in the period subsequent to the date hereof but prior to the Closing Date, will omit at the time of filing) to state a any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading~~. To Parent’s Knowledge, as of the date hereof, none of the Parent SEC Documents is the subject of ongoing SEC review~~. (b) ~~Parent is in compliance with, and has complied, in all material respects with (i) the applicable provisions~~ Each of the ~~▇▇▇▇▇▇▇▇-~~Private McNeil Partnerships has made avai▇▇▇▇▇ Act of 2002 and the related rules and regulations promulgated thereunder, and (ii) the applicable listing and corporate governance rules and regulations of NASDAQ. Parent has established and maintains disclosure controls and procedures and internal control over financial reporting (as such terms are defined in paragraphs (e) and (f), respectively, of Rule 13a-15 under the Exchange Act) as required by Rule 13a-15 under the Exchange Act. Parent’s disclosure controls and procedures are reasonably designed to ensure that all material information required to be disclosed by Parent in the reports that it files or furnishes under the Exchange Act is recorded, processed, summarized and reported within the time periods specified in the rules and forms of the SEC, and that all such material information is accumulated and communicated to the ~~management~~ Company copies of ~~Parent~~ its unaudited balance sheets as ~~appropriate to allow timely decisions regarding required disclosure~~ of March 31, 1999 and ~~to make~~ December 31, 1998 and its related unaudited statements of operations and cash flows for the ~~certifications required pursuant to Sections 302~~ three-month period ended March 31, 1999 and 906 of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act. The management of Parent has completed its assessment of the effectiveness of Parent’s internal control over financial reporting in compliance with the requirements of Section 404 of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act for the year ended December 31, ~~2006~~1998 (such financial statements, and such assessment concluded that such controls were effective to provide reasonable assurance regarding the reliability of Parent’s financial reporting and the preparation of Parent’s financial statements for external purposes in accordance with GAAP. Parent has disclosed, based on its assessment of the effectiveness of Parent’s internal control over financial reporting in compliance collectively with the ~~requirements of Section 404 of the ▇▇▇▇▇▇▇▇-▇▇~~Public McNeil Partnership Statements, ▇▇▇ ~~Act~~ "McNeil Partnership Statements"). ▇▇ addition: Regency North has made available to the Company copies of the audited balance sheet as of December 31, 1998 and the related audited statements of operations and cash flows for the year ended December 31, ~~2006~~1998 for Regency North Apartments Limited Partnership, a Subsidiary Partnership of Regency North; Hearth Hollow has made available to ~~Parent’s independent registered accounting firm~~ the Company copies of the audited balance sheet as of December 31, 1998 and the ~~audit committee~~ related audited statements of ~~the Board of Directors of Parent (A) any significant deficiencies~~ operations and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect Parent’s ability to record, process, summarize and report financial information and (B) any fraud, whether or not material, of which there is Parent’s Knowledge that involves management or other employees who have a significant role in Parent’s internal control over financial reporting cash flows for the year ended December 31, ~~2006. Parent any~~ 1998 for Hearth Hollow Apartments Limited Partnership, a Subsidiary Partnership of Hearth Hollow; and Midwest Properties has made available to the Company ~~a summary~~ copies of ~~any such disclosures made by management to such accounting firm or audit committee~~ its audited balance sheet as of December 31, 1998 and its audited statements of operations and cash flows for the year ended December 31, ~~2006~~1998 and copies of the audited balance sheets as of December 31, 1998 and the related audited statements of operations and cash flows for the year ended December 31, 1998 for each of Cedarwood Hills Associates and East Bay Village Apartments Limited Partnership, each of which is a Subsidiary Partnership of Midwest Properties (all such financial statements described in this sentence, the "Subsidiary Financial Statements"). McREMI has made available to the Company copies of its unaudited balance sheet as of March 31, 1999 and its audited balance sheet as of December 31, 1998, and its related unaudited statements of operations and cash flows for the three-month period ended March 31, 1999 and its related audited statements of operations and cash flows for the year ended December 31, 1998. MII and MPLP have made available to the Company copies of their unaudited consolidated balance sheet as of March 31, 1999 and their audited consolidated balance sheet as of December 31, 1998, and their related unaudited consolidated statements of operations and cash flows for the three-month period ended March 31 1999 and their related audited consolidated statements of operations and cash flows for the year ended December 31, 1998. The financial statements of McREMI and the consolidated financial statements of MII and MPLP made available to the Company in accordance with this paragraph (b), together with the McNeil Partnership Statements, ▇▇▇ ▇eferred to in this Agreement as the "Seller Statements." (c) The ~~consolidated financial statements of Parent included in the Parent SEC Documents~~ Public McNeil Partnership Statements co▇▇▇▇▇▇ (~~the “Parent SEC Financial Statements”) (i) have been prepared in accordance with GAAP (except as may be otherwise indicated therein or in the notes thereto and except~~or, in the case of ~~unaudited consolidated quarterly statements~~Public McNeil Partnership Statements ▇▇▇▇▇▇ned in any Seller SEC Documents filed in the period subsequent to the date hereof but prior to the Closing Date, will comply) as ~~permitted by Form 10-Q of the Exchange Act), applied on a consistent basis during the periods involved, (ii) complied~~ to form in all material respects with the published rules and regulations of the SEC with respect ~~thereto~~thereto in effect at the time of such filing, and the audited Seller Statements have been prepared (~~iii~~or, in the case of any Seller Statements prepared for any period subsequent to the date hereof but prior to the Closing Date, will be prepared) in accordance with GAAP in effect at the time of such preparation applied on a consistent basis during the periods involved (except as may be indicated in the notes thereto). Each of the Seller Statements fairly ~~present~~ presented (or, in the case of any Seller Statements for such Seller prepared for any period subsequent to the date hereof but prior to the Closing Date, will fairly present) in all material respects the ~~consolidated~~ financial position of ~~Parent~~ the applicable Seller (and its consolidated ~~Parent Subsidiaries~~ subsidiaries, if applicable) for which such Seller Statements were prepared as of the ~~respective dates~~ date thereof and fairly presented (or, in the ~~consolidated statements~~ case of ~~income~~any Seller Statements for such Seller prepared for any period subsequent to the date hereof but prior to the Closing Date, will fairly present) in all material respects the results of operations, cash flows and changes in ~~stockholders’ equity~~ financial position of such Seller or the consolidated results of operations, cash flows and changes in financial position of the applicable Seller or Seller Subsidiary for which such Seller Statements were prepared for the ~~respective periods~~ period then ended (subject, in the case of unaudited ~~quarterly~~ statements, to normal year-end audit ~~adjustments and the absence of footnotes~~adjustments). (d) As of March 31, 2007, neither Parent nor any of the Parent Subsidiaries had any liabilities or obligations that would have been required by GAAP to be reflected in the consolidated balance sheet of Parent and the Parent Subsidiaries as of such date, except (i) Except for ~~such~~ liabilities and obligations ~~reflected, reserved against or otherwise disclosed~~ set forth in the ~~consolidated balance sheet of Parent and~~ Seller SEC Documents filed prior to the ~~Parent Subsidiaries as of such~~ date hereof, in the Seller Statements (including the notes thereto) ~~that is~~ made available to the Company or contained in Seller SEC Documents filed prior to the date hereof or in the Subsidiary Financial Statements (including the notes thereto) or on Schedule 4.5(d) of the Seller Disclosure Letter and except for liabilities and obligations incurred in the ordinary course since the respective dates of the balance sheets included in the ~~Parent~~ Seller Statements made available to the Company or contained in Seller SEC ~~Financial~~ Documents filed prior to the date hereof, there are no liabilities or obligations of the Seller (or its consolidated subsidiaries, if applicable) in respect of which such Seller Statement was prepared of any nature (whether accrued, absolute, contingent or otherwise) required by GAAP to be set forth on the respective balance sheets of such Seller (and its consolidated subsidiaries, if applicable) included in the Seller Statements made available to the Company or contained in the Seller SEC Documents filed prior to the date hereof or in the notes thereto and ~~(ii) for such liabilities and obligations as would not be reasonably expected to have~~which, individually or in the aggregate, would have a ~~Parent~~ Seller Material Adverse Effect ~~(it is understood~~ or prevent the consummation by Sellers of the transactions contemplated by this Agreement and ~~agreed that the representations and warranties contained in this Section 5.5(d): (x) do not apply to matters described in any of Section 5.4,~~ the other ~~provisions of this Section 5.5, and Sections 5.7, 5.8, 5.9, 5.10, 5.11 and 5.17 (~~Transaction Documents to which Sellers are addressed exclusively in those Sections) and (y) shall not be deemed breached if such breach relates to a matter which is covered by a representation or warranty of Parent and Merger Sub contained in this Article V (other than this Section 5.5(d)) that contains a “Parent’s Knowledge” qualification)parties. (e) Since December 31, 2006 to the date of this Agreement, (i) neither Parent nor any Parent Subsidiary nor, to Parent’s Knowledge, any director, officer, auditor, accountant or representative of Parent or any of the Parent Subsidiaries has received any written complaint, allegation, assertion or claim that Parent or any of the Parent Subsidiaries has engaged in improper or illegal accounting or auditing practices or maintains improper or inadequate internal accounting controls relating to Parent and the Parent Subsidiaries, taken as a whole, (ii) no attorney representing Parent or any Parent Subsidiary has made a report to Parent’s chief legal officer, chief executive officer or Board of Directors (or any committee thereof) pursuant to the SEC’s Standards of Professional Conduct for Attorneys (17 CFR Part 205), and (iii) Parent has disclosed to its outside auditors any fraud, whether or not material, of which there is Parent’s Knowledge that involves management or other employees who have a significant role in Parent’s internal control over financial reporting.

Appears in 1 contract

Sources: Master Agreement (McNeil Real Estate Fund Ix LTD)

SEC Documents; Financial Statements; Undisclosed Liabilities. (a) ~~Parent~~ Except as set forth in Section 4.06 of the Company Disclosure Letter, the Company has timely filed ~~all reports, schedules, forms and registration statements~~ with the SEC required to be filed by it pursuant to the Securities Act and the Securities Act Rules, or the Exchange Act and the Exchange Act Rules, in each such case since January 1, 2005 (collectively, and in each case including all ~~annexes and schedules thereto and documents incorporated by reference therein, the “Parent~~ Company SEC Documents”). As of ~~their~~ its respective ~~dates (~~filing date, each Company SEC Document, including any financial statements or ~~if subsequently amended or superseded by a filing prior to the date of this Agreement~~schedules included therein, ~~on the date of such filing), the Parent SEC Documents~~ complied ~~as to form~~ in all material respects with the requirements of the Securities Act or and the Exchange Act, as the case may be, and the rules and regulations of the SEC promulgated thereunder applicable to such ~~Parent~~ Company SEC Documents, and ~~none of the Parent SEC Documents as of such dates contained~~ did not contain any untrue statement of a material fact or ~~omitted~~ omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading. ~~To Parent’s Knowledge, as of~~ Except to the ~~date hereof~~extent that information contained in any Filed Company SEC Document has been revised or superseded by a later-filed Filed Company SEC Document, none of the ~~Parent~~ Company SEC Documents contains any untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading. None of the Company Subsidiaries is required to file any reports with the ~~subject of ongoing SEC review~~SEC. (b) ~~Parent is in compliance with~~The principal executive officer and principal financial officer of the Company have made all certifications required by the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002 (the “▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act”) and any related rules and regulations promulgated thereunder by the SEC, and ~~has complied,~~ the statements contained in all such certifications were as of the respective dates made, complete and correct except for such failures to be complete and correct as have not had, and would not reasonably be expected to have, a Company Material Adverse Effect. Neither the Company nor any of its officers has received notice from the SEC or the Nasdaq National Market questioning or challenging the accuracy, completeness, content, form or manner of filing or submission of such certifications. The Company is, and through the Closing Date will be, otherwise in material ~~respects~~ compliance with ~~(i) the~~ all applicable effective provisions of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act ~~of 2002~~ and ~~the related rules and regulations promulgated thereunder, and (ii)~~ the applicable listing and corporate governance rules and regulations of NASDAQ. Parent has established and maintains disclosure controls and procedures and internal control over financial reporting (as such terms are defined in paragraphs (e) and (f), respectively, of Rule 13a-15 under the Exchange Act) as required by Rule 13a-15 under the Exchange Act. Parent’s disclosure controls and procedures are reasonably designed to ensure that all material information required to be disclosed by Parent in the reports that it files or furnishes under the Exchange Act is recorded, processed, summarized and reported within the time periods specified in the rules and forms of the SEC, and that all such material information is accumulated and communicated to the management of Parent as appropriate to allow timely decisions regarding required disclosure and to make the certifications required pursuant to Sections 302 and 906 of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act. The management of Parent has completed its assessment of the effectiveness of Parent’s internal control over financial reporting in compliance with the requirements of Section 404 of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act for the year ended December 31, 2006, and such assessment concluded that such controls were effective to provide reasonable assurance regarding the reliability of Parent’s financial reporting and the preparation of Parent’s financial statements for external purposes in accordance with GAAP. Parent has disclosed, based on its assessment of the effectiveness of Parent’s internal control over financial reporting in compliance with the requirements of Section 404 of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act for the year ended December 31, 2006, to Parent’s independent registered accounting firm and the audit committee of the Board of Directors of Parent (A) any significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect Parent’s ability to record, process, summarize and report financial information and (B) any fraud, whether or not material, of which there is Parent’s Knowledge that involves management or other employees who have a significant role in Parent’s internal control over financial reporting for the year ended December 31, 2006. Parent any has made available to the Company a summary of any such disclosures made by management to such accounting firm or audit committee for the year ended December 31, 2006Nasdaq National Market. (c) The ~~consolidated financial statements~~ Financial Statements complied as to form in all material respects with applicable accounting requirements and the published rules and regulations of ~~Parent included in~~ the ~~Parent~~ SEC ~~Documents (the “Parent SEC Financial Statements”) (i) have been~~ with respect thereto, were prepared in accordance with GAAP (~~except as may be otherwise indicated therein or in the notes thereto and~~ except, in the case of unaudited ~~consolidated quarterly~~ statements, as permitted by Form 10-Q of the ~~Exchange Act),~~ SEC) applied on a consistent basis during the periods ~~involved,~~ involved (iiexcept as may be indicated in the notes thereto) ~~complied in all material respects with published rules~~ and ~~regulations of the SEC with respect thereto, and (iii)~~ fairly ~~present in all material respects~~ presented the consolidated financial position of ~~Parent~~ the Company and its consolidated ~~Parent~~ Subsidiaries as of the ~~respective~~ dates thereof and the consolidated ~~statements~~ results of ~~income,~~ their operations and cash flows ~~and changes in stockholders’ equity~~ for the ~~respective~~ periods then ended (subject, in the case of unaudited ~~quarterly~~ statements, to normal year-end audit ~~adjustments and the absence of footnotes~~adjustments). (d) As None of ~~March 31, 2007, neither Parent nor~~ the Company or any of the ~~Parent~~ Company Subsidiaries ~~had~~ have any liabilities or obligations ~~that would have been~~ of any nature, whether accrued, absolute, contingent or otherwise, asserted or unasserted, due or to become due, known or unknown, and whether or not required ~~by GAAP~~ to be ~~reflected in the consolidated~~ disclosed on a balance sheet ~~of Parent and the Parent Subsidiaries as of such date~~prepared in accordance with GAAP, except liabilities (i) ~~for such liabilities and obligations reflected,~~ stated or adequately reserved against ~~or otherwise disclosed~~ in the ~~consolidated balance sheet~~ Financial Statements of ~~Parent and~~ the ~~Parent Subsidiaries as of such date (including the notes thereto) that is~~ Company included in the ~~Parent~~ Filed Company SEC ~~Financial Statements and~~ Documents or disclosed in Section 4.06(d) of the Company Disclosure Letter, or (ii) ~~for such liabilities~~ incurred in the ordinary and ~~obligations as~~ usual course of business since December 31, 2005, that have not had and would not reasonably be ~~reasonably~~ expected to have, individually or in the aggregate, a ~~Parent~~ Company Material Adverse Effect (it is understood and agreed that the representations and warranties contained in this Section 5.5(d): (x) do not apply to matters described in any of Section 5.4, the other provisions of this Section 5.5, and Sections 5.7, 5.8, 5.9, 5.10, 5.11 and 5.17 (which are addressed exclusively in those Sections) and (y) shall not be deemed breached if such breach relates to a matter which is covered by a representation or warranty of Parent and Merger Sub contained in this Article V (other than this Section 5.5(d)) that contains a “Parent’s Knowledge” qualification)Effect. (e) Since December 31, 2006 to the date of this Agreement, (i) neither Parent nor any Parent Subsidiary nor, to Parent’s Knowledge, any director, officer, auditor, accountant or representative of Parent or any of the Parent Subsidiaries has received any written complaint, allegation, assertion or claim that Parent or any of the Parent Subsidiaries has engaged in improper or illegal accounting or auditing practices or maintains improper or inadequate internal accounting controls relating to Parent and the Parent Subsidiaries, taken as a whole, (ii) no attorney representing Parent or any Parent Subsidiary has made a report to Parent’s chief legal officer, chief executive officer or Board of Directors (or any committee thereof) pursuant to the SEC’s Standards of Professional Conduct for Attorneys (17 CFR Part 205), and (iii) Parent has disclosed to its outside auditors any fraud, whether or not material, of which there is Parent’s Knowledge that involves management or other employees who have a significant role in Parent’s internal control over financial reporting.

Appears in 1 contract

Sources: Merger Agreement (Click Commerce Inc)

SEC Documents; Financial Statements; Undisclosed Liabilities. (a) ~~Parent~~ Omnicom has filed or furnished on a timely basis all reports, schedules, ~~forms~~ forms, statements, registration statements, prospectuses and ~~registration statements with the SEC~~ other documents required to be filed or furnished by ~~it pursuant to~~ Omnicom with the SEC under the Securities Act ~~and the Securities Act Rules,~~ or the Exchange Act ~~and the Exchange Act Rules, in each such case~~ since January 1, ~~2005~~ 2023 (~~collectively, and in each case including all annexes and schedules thereto and documents incorporated by reference therein,~~ the “~~Parent~~ Omnicom SEC Documents”). None of the Subsidiaries of Omnicom is subject to the periodic reporting requirements of the Exchange Act. (b) As of ~~their~~ its respective ~~dates (or~~ filing date, and, if ~~subsequently amended or superseded by a filing~~ amended, as of the date of the last amendment prior to the date of this Agreement, ~~on the date of such filing), the Parent~~ each Omnicom SEC ~~Documents~~ Document complied ~~as to form~~ in all material respects with the requirements of the ~~Securities Act or the~~ Exchange Act, the Securities Act, and the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act as the case may be, and the rules and regulations of the SEC promulgated thereunder applicable to such ~~Parent~~ Omnicom SEC ~~Documents,~~ Document and ~~none of the Parent SEC Documents as of such dates contained~~ did not contain any untrue statement of a material fact or ~~omitted~~ omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading. (c) The consolidated financial statements of Omnicom and its Subsidiaries included or incorporated by reference in the Omnicom SEC Documents (including, in each case, any notes or schedules thereto) (the “Omnicom SEC Financial Statements”), comply as to form in all material respects with applicable accounting requirements and the published rules and regulations of the SEC with respect thereto. ~~To Parent’s Knowledge~~The Omnicom SEC Financial Statements fairly present, in all material respects, the financial condition and the results of operations, cash flows and changes in stockholders’ equity of Omnicom and its Subsidiaries (on a consolidated basis) as of the respective dates of and for the periods referred to in the Omnicom SEC Financial Statements, and were prepared in accordance with GAAP applied on a consistent basis during the periods involved (except as may be indicated in the notes thereto), subject, in the case of interim Omnicom SEC Financial Statements, to normal year-end adjustments (which are not material in significance or amount) and the absence of notes. (d) As of the date ~~hereof~~of this Agreement, there are no outstanding or unresolved comments in comment letters received from the SEC staff with respect to any Omnicom SEC Documents and none of the ~~Parent~~ Omnicom SEC Documents is is, to the Knowledge of Omnicom, the subject of ongoing SEC ~~review~~review or investigation. To the Knowledge of Omnicom, there are no SEC inquiries or investigations pending or threatened, in each case regarding any accounting practices of Omnicom. (be) Parent is in compliance with, and has complied, in all material respects with (i) the applicable provisions of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002 and the related rules and regulations promulgated thereunder, and (ii) the applicable listing and corporate governance rules and regulations of NASDAQ. Parent Omnicom has established and maintains disclosure controls and procedures and internal control over financial reporting (as such terms are defined in paragraphs (e) and (f), respectively, of Rule 13a-15 and paragraph (e) of Rule 15d-15 under the Exchange Act) as required by ~~Rule~~ Rules 13a-15 and 15d-15 under the Exchange Act. ~~Parent~~Omnicom’s disclosure controls and procedures are ~~reasonably~~ designed to ensure that all ~~material~~ information (both financial and non-financial) required to be disclosed by ~~Parent~~ Omnicom in the reports that it files or furnishes under the Exchange Act is recorded, processed, summarized and reported within the time periods specified in the rules and forms of the SEC, and that all such ~~material~~ information is accumulated and communicated to ~~the~~ Omnicom’s management ~~of Parent~~ as appropriate to allow timely decisions regarding required disclosure and to make the certifications required pursuant to Sections 302 and 906 of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act. ~~The~~ Omnicom’s management ~~of Parent~~ has completed ~~its~~ an assessment of the effectiveness of ~~Parent~~Omnicom’s disclosure controls and procedures and, to the extent required by applicable Law, presented in any applicable Omnicom SEC Document that is a report on Form 10-K or Form 10-Q, or any amendment thereto, its conclusions about the effectiveness of the disclosure controls and procedures as of the end of the period covered by such report or amendment based on such evaluation. Since January 1, 2023, Omnicom has had no significant deficiencies or material weaknesses in the design or operation of its internal control over financial reporting that would reasonably be expected to adversely affect Omnicom’s ability to record, process, summarize and report financial information and Omnicom does not have Knowledge of any fraud, whether or not material, that involves management or other employees who have a significant role in Omnicom’s internal control over financial ~~reporting in compliance with~~ reporting. Omnicom has timely filed all certifications and statements required by (i) Rule 13a-14 or Rule 15d-14 under the ~~requirements of~~ Exchange Act; or (ii) 18 U.S.C. Section ~~404~~ 1350 (Section 906 of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ ~~Act for the year ended December 31~~Act) with respect to all applicable Omnicom SEC Documents. (f) Omnicom and its Subsidiaries do not have any liabilities or obligations of any nature (whether absolute or contingent, ~~2006~~asserted or unasserted, known or unknown, primary or secondary, direct or indirect, and ~~such assessment concluded that such controls were effective~~ whether or not accrued or required to ~~provide reasonable assurance regarding the reliability of Parent’s financial reporting and the preparation of Parent~~be reflected in Omnicom’s financial statements ~~for external purposes~~ in accordance with GAAP. Parent has disclosed, based on its assessment of the effectiveness of Parent’s internal control over financial reporting in compliance with the requirements of Section 404 of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act for the year ended December 31, 2006, to Parent’s independent registered accounting firm and the audit committee of the Board of Directors of Parent (A) any significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect Parent’s ability to record, process, summarize and report financial information and (B) any fraud, whether or not material, of which there is Parent’s Knowledge that involves management or other employees who have a significant role in Parent’s internal control over financial reporting for the year ended December 31, 2006. Parent any has made available to the Company a summary of any such disclosures made by management to such accounting firm or audit committee for the year ended December 31, 2006. (c) The consolidated financial statements of Parent included in the Parent SEC Documents (the “Parent SEC Financial Statements”) (i) have been prepared in accordance with GAAP (except as may be otherwise indicated therein or in the notes thereto and except, in the case of unaudited consolidated quarterly statements, as permitted by Form 10-Q of the Exchange Act), applied on a consistent basis during the periods involved, (ii) complied in all material respects with published rules and regulations of the SEC with respect thereto, and (iii) fairly present in all material respects the consolidated financial position of Parent and its consolidated Parent Subsidiaries as of the respective dates thereof and the consolidated statements of income, cash flows and changes in stockholders’ equity for the respective periods then ended (subject, in the case of unaudited quarterly statements, to normal year-end audit adjustments and the absence of footnotes). (d) As of March 31, 2007, neither Parent nor any of the Parent Subsidiaries had any liabilities or obligations that would have been required by GAAP to be reflected in the consolidated balance sheet of Parent and the Parent Subsidiaries as of such date, except (i) ~~for such liabilities and obligations reflected~~as disclosed, reflected or reserved against ~~or otherwise disclosed~~ in the ~~consolidated~~ most recent audited balance sheet ~~of Parent and~~ included in the ~~Parent Subsidiaries as of such date (including~~ Omnicom SEC Financial Statements or the notes thereto~~) that is included in the Parent SEC Financial Statements and~~ , (ii) for ~~such~~ liabilities and obligations ~~as would not be reasonably expected to have~~incurred in the ordinary course of business since the date of the most recent audited balance sheet included in the Omnicom SEC Financial Statements, (iii) for liabilities and obligations arising out of or in connection with this Agreement, the Merger or the Transactions and (iv) for liabilities and obligations that, individually or in the aggregate, ~~a Parent~~ have not had, and would not reasonably be expected to have, an Omnicom Material Adverse Effect (it is understood and agreed that the representations and warranties contained in this Section 5.5(d): (x) do not apply to matters described in any of Section 5.4, the other provisions of this Section 5.5, and Sections 5.7, 5.8, 5.9, 5.10, 5.11 and 5.17 (which are addressed exclusively in those Sections) and (y) shall not be deemed breached if such breach relates to a matter which is covered by a representation or warranty of Parent and Merger Sub contained in this Article V (other than this Section 5.5(d)) that contains a “Parent’s Knowledge” qualification)Effect. (eg) ~~Since December 31, 2006 to the date of this Agreement, (i) neither Parent~~ Neither Omnicom nor any ~~Parent Subsidiary nor~~of its Subsidiaries is a party to, or has any commitment to ~~Parent’s Knowledge~~become a party to, any ~~director~~joint venture, ~~officer~~off-balance sheet partnership or any similar Contract (including any Contract or arrangement relating to any transaction or relationship between or among Omnicom and any of its Subsidiaries, ~~auditor~~on the one hand, ~~accountant~~ and any unconsolidated affiliate, including any structured finance, special purpose or ~~representative~~ limited purpose entity or Person, on the other hand, or any “off-balance-sheet arrangements” (as defined in Item 303(a) of ~~Parent~~ Regulation S-K under 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, Omnicom or any of ~~the Parent~~ its Subsidiaries ~~has received any written complaint, allegation, assertion or claim that Parent or any of the Parent Subsidiaries has engaged~~ in improper or illegal accounting or auditing practices or maintains improper or inadequate internal accounting controls relating to Parent and the Parent Subsidiaries, taken as a whole, (ii) no attorney representing Parent or any Parent Subsidiary has made a report to ParentOmnicom’s chief legal officer, chief executive officer or Board of Directors (or any committee thereof) pursuant to the SEC’s Standards of Professional Conduct for Attorneys (17 CFR Part 205), and (iii) Parent has disclosed to its outside auditors any fraud, whether or not material, of which there is Parent’s Knowledge that involves management published financial statements or other ~~employees who have a significant role in Parent’s internal control over financial reporting~~Omnicom SEC Documents.

Appears in 1 contract

Sources: Merger Agreement (Omnicom Group Inc.)

SEC Documents; Financial Statements; Undisclosed Liabilities. (a) ~~Parent~~ The Company has filed all reports, schedules, forms and registration statements with the SEC required to be filed ~~by it~~ pursuant to the Securities Act ~~and the Securities Act Rules,~~ or the Exchange Act and the ~~Exchange Act Rules~~rules and regulations of the SEC promulgated thereunder from May 29, ~~in each such case since January 1, 2005~~ 2004 through the date of this Agreement (collectively, ~~and in each case including all annexes and schedules thereto and documents incorporated by reference therein,~~ the “~~Parent~~ SEC Documents”). As of their respective dates (or if subsequently amended or superseded by a filing prior to the date of this Agreement, on the date of such filing), the ~~Parent~~ SEC ~~Documents~~ Documents, including any financial statements or schedules included therein, as finally amended, complied as to form in all material respects with the applicable requirements of the Securities Act or the Exchange Act, as the case may be, and the rules and regulations of the SEC promulgated thereunder applicable to such ~~Parent~~ SEC ~~Documents~~Documents (as the Securities Act or the Exchange Act and the rules and regulation promulgated thereunder were in effect on the date so filed), and none of the ~~Parent~~ SEC ~~Documents as of such dates~~ Documents, when finally amended prior to the date hereof, contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading. ~~To Parent’s Knowledge, as~~ As of the date ~~hereof~~of this Agreement, ~~none~~ there are no outstanding or unresolved comments in comment letters received by the Company from the SEC staff with respect to any of the ~~Parent~~ SEC ~~Documents~~ Documents. No Company Subsidiary is required to file any forms, reports or other documents with the ~~subject of ongoing SEC review~~SEC. (b) Parent is in compliance with, and has complied, in all material respects with (i) the applicable provisions of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002 and the related rules and regulations promulgated thereunder, and (ii) the applicable listing and corporate governance rules and regulations of NASDAQ. Parent has established and maintains disclosure controls and procedures and internal control over financial reporting (as such terms are defined in paragraphs (e) and (f), respectively, of Rule 13a-15 under the Exchange Act) as required by Rule 13a-15 under the Exchange Act. Parent’s disclosure controls and procedures are reasonably designed to ensure that all material information required to be disclosed by Parent in the reports that it files or furnishes under the Exchange Act is recorded, processed, summarized and reported within the time periods specified in the rules and forms of the SEC, and that all such material information is accumulated and communicated to the management of Parent as appropriate to allow timely decisions regarding required disclosure and to make the certifications required pursuant to Sections 302 and 906 of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act. The management of Parent has completed its assessment of the effectiveness of Parent’s internal control over financial reporting in compliance with the requirements of Section 404 of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act for the year ended December 31, 2006, and such assessment concluded that such controls were effective to provide reasonable assurance regarding the reliability of Parent’s financial reporting and the preparation of Parent’s financial statements for external purposes in accordance with GAAP. Parent has disclosed, based on its assessment of the effectiveness of Parent’s internal control over financial reporting in compliance with the requirements of Section 404 of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act for the year ended December 31, 2006, to Parent’s independent registered accounting firm and the audit committee of the Board of Directors of Parent (A) any significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect Parent’s ability to record, process, summarize and report financial information and (B) any fraud, whether or not material, of which there is Parent’s Knowledge that involves management or other employees who have a significant role in Parent’s internal control over financial reporting for the year ended December 31, 2006. Parent any has made available to the Company a summary of any such disclosures made by management to such accounting firm or audit committee for the year ended December 31, 2006. (c) The consolidated financial statements (including the related notes and schedules) of ~~Parent~~ the Company included in the ~~Parent~~ SEC Documents (the “~~Parent~~ SEC Financial Statements”~~) (i~~) have been prepared in accordance with GAAP (except as may be otherwise indicated therein or in the notes thereto and except, in the case of unaudited consolidated quarterly statements, as permitted by Form 10-Q of the Exchange Act), applied on a consistent basis during the periods involved, ~~(ii) complied in all material respects with published rules~~ and ~~regulations of the SEC with respect thereto, and (iii)~~ fairly present in all material respects the consolidated financial position of ~~Parent~~ the Company and its consolidated ~~Parent~~ Subsidiaries as of the respective dates thereof and the consolidated statements of ~~income~~operations, ~~cash flows and changes in~~ stockholders’ equity and cash flows for the respective periods then ended (subject, in the case of unaudited quarterly statements, to normal year-end audit adjustments and the absence of footnotes). (dc) ~~As of March 31~~The Company has designed disclosure controls and procedures to ensure that material information relating to the Company, ~~2007~~including its consolidated Company Subsidiaries, ~~neither Parent nor any~~ is made known to the chief executive officer and the chief accounting officer of the ~~Parent Subsidiaries had any liabilities or obligations that would have been required~~ Company by ~~GAAP~~ others within those entities. The Company has disclosed, based on its most recent evaluation prior to ~~be reflected in~~ the ~~consolidated balance sheet of Parent~~ date hereof, to the Company’s auditors and the ~~Parent Subsidiaries as~~ audit committee of ~~such date~~the Board of Directors of the Company, except (i) for such liabilities and obligations reflected, reserved against or otherwise disclosed in the consolidated balance sheet of Parent and the Parent Subsidiaries as of such date (including the notes thereto) that is included in the Parent SEC Financial Statements and (ii) for such liabilities and obligations as would not be reasonably expected to have, individually or in the aggregate, a Parent Material Adverse Effect (it is understood and agreed that the representations and warranties contained in this Section 5.5(d): (x) ~~do not apply~~ any significant deficiencies and material weaknesses in the design or operation of internal controls over financial reporting which are reasonably likely to ~~matters described~~ adversely effect in any ~~of Section 5.4~~material respect the Company’s ability to record, ~~the other provisions of this Section 5.5~~process, summarize and ~~Sections 5.7, 5.8, 5.9, 5.10, 5.11 and 5.17 (which are addressed exclusively in those Sections)~~ report financial information and (y) ~~shall~~ any fraud, whether or not material, that involves management or other employees who have a significant role in the Company’s internal controls over financial reporting. To the Company’s Knowledge, there is no reason to believe, after completion of all remediation set forth on Section 4.5(c) of the Company Disclosure Schedule and any other remediation the costs of which would not be deemed breached if such breach relates to a matter which is covered by a representation or warranty of Parent and Merger Sub contained in this Article V (other than this Section 5.5(d)) that contains a “Parent’s Knowledge” qualification). (e) Since December 31, 2006 material to the ~~date~~ Company and the Company Subsidiaries taken as a whole, that its auditors and its chief executive officer will not be able to give the certifications and attestations required pursuant to the rules and regulations adopted pursuant to Section 404 of ~~this Agreement~~the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002 when next due. Since May 28, 2005, (i) neither ~~Parent~~ the Company nor any ~~Parent~~ Company Subsidiary nor, to ~~Parent~~the Company’s Knowledge, any director, officer, employee, auditor, accountant or representative of ~~Parent~~ the Company or any of the ~~Parent~~ Company Subsidiaries has received any written complaint, allegation, assertion or claim that ~~Parent~~ the Company or any of the ~~Parent~~ Company Subsidiaries has engaged in improper or illegal accounting or auditing practices or maintains improper or inadequate internal accounting controls relating to ~~Parent~~ the Company and the ~~Parent Subsidiaries,~~ Company Subsidiaries taken as a ~~whole,~~ whole and (ii) no attorney representing ~~Parent~~ the Company or any ~~Parent~~ Company Subsidiary has made a report to ~~Parent~~the Company’s chief legal officer, chief executive officer or Board of Directors (or any committee thereof) pursuant to the SEC’s Standards of Professional Conduct for Attorneys (17 CFR Part 205). (d) Since the enactment of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002, the Company has been and is in compliance in all material respects with (i) the applicable provisions of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002 and (ii) the applicable listing and corporate governance rules and regulations of the New York Stock Exchange. (e) Neither the Company nor any of the Company Subsidiaries has any Liabilities that would be required by GAAP to be reflected in the consolidated balance sheet of the Company, except (a) for such Liabilities (i) reflected, reserved against or otherwise disclosed in the consolidated balance sheet of the Company as of November 26, 2005 or May 28, 2005 (in each case including the notes thereto), which is included in the SEC Financial Statements, (ii) incurred in the ordinary course of business consistent with past practice, (iii) ~~Parent has~~ arising under the terms of (but not from any breach of default under) any Contract or Permit binding upon the Company or any of the Company Subsidiaries that is either (x) disclosed in the Company Disclosure Schedule or (y) not required to ~~its outside auditors~~ be so disclosed by the terms of this Agreement, and including any ~~fraud~~such Contract that is entered into, ~~whether~~ or such Permit that is obtained, after the date of this Agreement, as long as entering into such Contract or obtaining such Permit does not ~~material~~violate any provision of this Agreement, ~~of which there is Parent’s Knowledge that involves management~~ or (iv) incurred pursuant to or in connection with this Agreement or the Transactions and (b) for such other ~~employees who have~~ Liabilities as would not reasonably be expected to have, individually or in the aggregate, a ~~significant role in Parent’s internal control over financial reporting~~Company Material Adverse Effect.

Appears in 1 contract

Sources: Merger Agreement (COHOES FASHIONS of CRANSTON, Inc.)

SEC Documents; Financial Statements; Undisclosed Liabilities. ~~(a) Parent~~ Cornerstone has furnished or filed all reports, schedules, ~~forms~~ forms, statements and ~~registration statements~~ other documents required to be furnished or filed with the SEC ~~required to be filed by it pursuant to~~ since December 31, 1997 through the date of this Agreement (the "Cornerstone SEC Documents"). All of the Cornerstone SEC Documents (other than preliminary material), as of their respective filing dates, complied in all material respects with all applicable requirements of the Securities Act and the Securities ~~Act Rules, or the~~ Exchange Act ~~and~~ of 1934, as amended (the "Exchange ~~Act Rules~~Act"), and, in each ~~such case since January 1~~case, 2005 (collectively, and in each case including all annexes and schedules thereto and documents incorporated by reference therein, the “Parent SEC Documents”). As of their respective dates (or if subsequently amended or superseded by a filing prior to the date of this Agreement, on the date of such filing), the Parent SEC Documents complied as to form in all material respects with the requirements of the Securities Act or the Exchange Act, as the case may be, and the rules and regulations ~~of the SEC~~ promulgated thereunder applicable to such ~~Parent~~ Cornerstone SEC Documents~~, and none~~ . None of the ~~Parent~~ Cornerstone SEC Documents as at the time of ~~such dates contained~~ filing contained, nor will any report, schedule, form, statement or other document filed by Cornerstone after the date hereof and prior to the Effective Time contain, any untrue statement of a material fact or omitted to state a any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading. ~~To Parent’s Knowledge~~The consolidated financial statements of Cornerstone included in the Cornerstone SEC Documents complied, as ~~of the date hereof, none of the Parent SEC Documents is the subject of ongoing SEC review. (b) Parent is in compliance with, and has complied,~~ to form in all material respects with ~~(i) the~~ applicable ~~provisions of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002~~ accounting requirements and the related rules and regulations promulgated thereunder, and (ii) the applicable listing and corporate governance rules and regulations of NASDAQ. Parent has established and maintains disclosure controls and procedures and internal control over financial reporting (as such terms are defined in paragraphs (e) and (f), respectively, of Rule 13a-15 under the Exchange Act) as required by Rule 13a-15 under the Exchange Act. Parent’s disclosure controls and procedures are reasonably designed to ensure that all material information required to be disclosed by Parent in the reports that it files or furnishes under the Exchange Act is recorded, processed, summarized and reported within the time periods specified in the rules and forms of the SEC, and that all such material information is accumulated and communicated to the management of Parent as appropriate to allow timely decisions regarding required disclosure and to make the certifications required pursuant to Sections 302 and 906 of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act. The management of Parent has completed its assessment of the effectiveness of Parent’s internal control over financial reporting in compliance with the requirements of Section 404 of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act for the year ended December 31, 2006, and such assessment concluded that such controls were effective to provide reasonable assurance regarding the reliability of Parent’s financial reporting and the preparation of Parent’s financial statements for external purposes in accordance with GAAP. Parent has disclosed, based on its assessment of the effectiveness of Parent’s internal control over financial reporting in compliance with the requirements of Section 404 of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act for the year ended December 31, 2006, to Parent’s independent registered accounting firm and the audit committee of the Board of Directors of Parent (A) any significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect Parent’s ability to record, process, summarize and report financial information and (B) any fraud, whether or not material, of which there is Parent’s Knowledge that involves management or other employees who have a significant role in Parent’s internal control over financial reporting for the year ended December 31, 2006. Parent any has made available to the Company a summary of any such disclosures made by management to such accounting firm or audit committee for the year ended December 31, 2006. (c) The consolidated financial statements of Parent included in the Parent SEC Documents (the “Parent SEC Financial Statements”) (i) have been prepared in accordance with GAAP (except as may be otherwise indicated therein or in the notes thereto and except, in the case of unaudited consolidated quarterly statements, as permitted by Form 10-Q of the Exchange Act), applied on a consistent basis during the periods involved, (ii) complied in all material respects with published rules and regulations of the SEC with respect thereto, ~~and~~ have been prepared in accordance with generally accepted accounting principles (~~iii~~"GAAP") fairly present in all material respects the consolidated financial position of Parent and its consolidated Parent Subsidiaries as of the respective dates thereof and the consolidated statements of income, cash flows and changes in stockholders’ equity for the respective periods then ended (~~subject~~except, in the case of unaudited ~~quarterly~~ statements, ~~to normal year-end audit adjustments~~ as permitted by the applicable rules and regulations of the SEC) applied on a consistent basis during the periods involved (except as may be indicated in the notes thereto) and fairly presented, in all material respects in accordance with the applicable requirements of GAAP and the ~~absence~~ applicable rules and regulations of ~~footnotes~~the SEC, the consolidated financial position of Cornerstone and its Subsidiaries, as the case may be, in each case, taken as a whole, as of the dates thereof and the consolidated results of operations and cash flows for the periods then ended (except, in the case of unaudited statements, as permitted by Form 10-Q under the Exchange Act)~~. (d) As of March 31~~. Except as set forth in Schedule 2.6 to the Cornerstone Disclosure Letter, ~~2007~~Cornerstone has no Subsidiaries which are not consolidated for accounting purposes. Except for liabilities and obligations set forth in the Cornerstone SEC Documents or in Schedule 2.6 to the Cornerstone Disclosure Letter, neither ~~Parent~~ Cornerstone nor any ~~of the Parent Subsidiaries had~~ Cornerstone Subsidiary has any liabilities or obligations ~~that would have been~~ of any nature (whether accrued, absolute, contingent or otherwise) required by GAAP to be ~~reflected in the~~ set forth on a consolidated balance sheet of ~~Parent and the Parent Subsidiaries as of such date, except (i) for such liabilities and obligations reflected, reserved against~~ Cornerstone or ~~otherwise disclosed~~ in the ~~consolidated balance sheet of Parent~~ notes thereto and the Parent Subsidiaries as of such date (including the notes thereto) that is included in the Parent SEC Financial Statements and (ii) for such liabilities and obligations as would not be reasonably expected to havewhich, individually or in the aggregate, would reasonably be expected to have a ~~Parent~~ Cornerstone Material Adverse Effect (it is understood and agreed that the representations and warranties contained in this Section 5.5(d): (x) do not apply to matters described in any of Section 5.4, the other provisions of this Section 5.5, and Sections 5.7, 5.8, 5.9, 5.10, 5.11 and 5.17 (which are addressed exclusively in those Sections) and (y) shall not be deemed breached if such breach relates to a matter which is covered by a representation or warranty of Parent and Merger Sub contained in this Article V (other than this Section 5.5(d)) that contains a “Parent’s Knowledge” qualification)Effect. (e) Since December 31, 2006 to the date of this Agreement, (i) neither Parent nor any Parent Subsidiary nor, to Parent’s Knowledge, any director, officer, auditor, accountant or representative of Parent or any of the Parent Subsidiaries has received any written complaint, allegation, assertion or claim that Parent or any of the Parent Subsidiaries has engaged in improper or illegal accounting or auditing practices or maintains improper or inadequate internal accounting controls relating to Parent and the Parent Subsidiaries, taken as a whole, (ii) no attorney representing Parent or any Parent Subsidiary has made a report to Parent’s chief legal officer, chief executive officer or Board of Directors (or any committee thereof) pursuant to the SEC’s Standards of Professional Conduct for Attorneys (17 CFR Part 205), and (iii) Parent has disclosed to its outside auditors any fraud, whether or not material, of which there is Parent’s Knowledge that involves management or other employees who have a significant role in Parent’s internal control over financial reporting.

Appears in 1 contract

Sources: Merger Agreement (Colonial Properties Trust)

SEC Documents; Financial Statements; Undisclosed Liabilities. (ai) Parent ~~has~~ and its subsidiaries have filed or furnished all required registration statements, prospectuses, reports, schedules, ~~forms~~ forms, statements, certifications and ~~registration statements~~ other documents (including exhibits and all other information incorporated therein) with the SEC ~~required to be filed by it pursuant to the Securities Act and the Securities Act Rules~~since June 19, ~~or the Exchange Act and the Exchange Act Rules, in each such case since January 1, 2005~~ 2014 (~~collectively, and in each case including all annexes and schedules thereto and documents incorporated by reference therein,~~ the “Parent SEC Documents”). As of their respective ~~dates (or if subsequently amended or superseded by a filing prior to the date of this Agreement, on the date of such filing)~~dates, the Parent SEC Documents complied ~~as to form~~ in all material respects with the requirements of the Securities ~~Act or~~ Act, the Exchange Act and the S▇▇▇▇▇▇▇-▇▇▇▇▇ Act, as the case may be, and the rules and regulations of the SEC promulgated thereunder applicable to ~~such~~ the Parent SEC Documents, and none of the Parent SEC Documents ~~as of such dates~~ when filed and at their respective effective times, if applicable, contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading. ~~To Parent’s Knowledge, as~~ As of the date ~~hereof~~of this Agreement, there are no outstanding or unresolved comments received from the SEC with respect to any of the Parent SEC Documents, and, to the knowledge of Parent, none of the Parent SEC Documents is the subject of ~~ongoing~~ any outstanding SEC ~~review~~comment or outstanding SEC investigation. (bii) The consolidated financial statements (including all related notes and schedules) of Parent is and its subsidiaries included in ~~compliance with, and has complied,~~ the Parent SEC Documents (the “Parent Financial Statements”) were prepared in all material respects in accordance with the International Financial Reporting Standards (i“IFRS”) (except, in the ~~applicable provisions~~ case of unaudited statements, as permitted by the SEC) applied on a consistent basis during the periods involved (except as may be indicated in the notes thereto) and fairly present in all material respects the consolidated financial position of Parent and its consolidated subsidiaries as of the ~~▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002~~ dates thereof and the ~~related rules~~ consolidated results of their operations and ~~regulations promulgated thereunder~~cash flows for the periods then ended (subject, in the case of unaudited statements, to normal year-end audit adjustments which are not material and to any other adjustments described therein, including the notes thereto). (iii) Except (A) as reflected or reserved against in Parent’s audited balance sheet as of December 31, 2015 (or the notes thereto) as included in the Parent Filed SEC Documents, (B) for liabilities and obligations incurred in the ordinary course of business consistent with past practice since December 31, 2015 and (iiC) for liabilities and obligations incurred in connection with or contemplated by this Agreement, neither Parent nor any of its subsidiaries has any liabilities or obligations of any nature (whether accrued, absolute, contingent or otherwise) that would be required by IFRS to be reflected on a consolidated balance sheet of Parent and its subsidiaries (or in the ~~applicable listing and corporate governance rules and regulations~~ notes thereto) that, individually or in the aggregate, would reasonably be expected to have a Material Adverse Effect on Parent. (iv) Parent maintains a system of ~~NASDAQ. Parent has established and maintains disclosure controls and procedures and~~ “internal control over financial ~~reporting~~ reporting” (as ~~such terms are~~ defined in ~~paragraphs (e~~Rules 13a-15(f) and ~~(f), respectively,~~ 15d-15(f) of ~~Rule 13a-15 under~~ the Exchange Act) sufficient to provide reasonable assurance (i) that transactions are recorded as ~~required by Rule 13a-15 under~~ necessary to permit preparation of financial statements in conformity with IFRS, consistently applied, (ii) that transactions are executed only in accordance with the authorization of management and (iii) regarding prevention or timely detection of the unauthorized acquisition, use or disposition of Parent’s properties or assets. Since January 1, 2013, none of Parent, Parent’s independent accountants, the Board of Directors of Parent or its audit committee has received any oral or written notification of any (i) “significant deficiency” in the internal controls over financial reporting of Parent, (ii) “material weakness” in the internal controls over financial reporting of Parent or (iii) fraud, whether or not material, that involves management or other employees of Parent who have a significant role in the internal controls over financial reporting of Parent. (v) The “disclosure controls and procedures” (as defined in Rules 13a-15(e) and 15d-15(e) of the Exchange Act~~. Parent’s disclosure controls and procedures~~ ) utilized by Parent are reasonably designed to ensure that all ~~material~~ information (both financial and non-financial) required to be disclosed by Parent in the reports that it files or ~~furnishes~~ submits under the Exchange Act is recorded, processed, summarized and reported within the time periods specified in the rules and forms of the ~~SEC,~~ SEC and that all such ~~material~~ information required to be disclosed is accumulated and communicated to the management of ~~Parent~~ Parent, as ~~appropriate~~ appropriate, to allow timely decisions regarding required disclosure and to enable the chief executive officer and chief financial officer of Parent to make the certifications required ~~pursuant to Sections 302 and 906 of~~ under the ~~▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act. The management of Parent has completed its assessment of the effectiveness of Parent’s internal control over financial reporting in compliance~~ Exchange Act with the requirements of Section 404 of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act for the year ended December 31, 2006, and such assessment concluded that such controls were effective to provide reasonable assurance regarding the reliability of Parent’s financial reporting and the preparation of Parent’s financial statements for external purposes in accordance with GAAP. Parent has disclosed, based on its assessment of the effectiveness of Parent’s internal control over financial reporting in compliance with the requirements of Section 404 of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act for the year ended December 31, 2006, to Parent’s independent registered accounting firm and the audit committee of the Board of Directors of Parent (A) any significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect Parent’s ability to record, process, summarize and report financial information and (B) any fraud, whether or not material, of which there is Parent’s Knowledge that involves management or other employees who have a significant role in Parent’s internal control over financial reporting for the year ended December 31, 2006. Parent any has made available to the Company a summary of any such disclosures made by management respect to such ~~accounting firm or audit committee for the year ended December 31, 2006~~reports. (cvi) ~~The consolidated financial statements~~ Neither Parent nor any of its subsidiaries is a party to, or has any commitment to become a party to, any joint venture, off-balance sheet partnership or any similar contract (including any contract or arrangement relating to any transaction or relationship between or among Parent ~~included~~ and any of its subsidiaries, on the one hand, and any unconsolidated affiliate, including any structured finance, special purpose or limited purpose entity or person, on the other hand, or any “off-balance sheet arrangements” (as defined in ~~the Parent SEC Documents (the “Parent SEC Financial Statements”~~Item 303(a) ~~(i) have been prepared in accordance with GAAP (except as may be otherwise indicated therein or in the notes thereto and except, in the case~~ of ~~unaudited consolidated quarterly statements, as permitted by Form 10~~Regulation S-~~Q of~~ K under the Exchange Act)), ~~applied on a consistent basis during~~ where the ~~periods involved~~result, (ii) complied in all material respects with published rules and regulations of the SEC with respect thereto, and (iii) fairly present in all material respects the consolidated financial position of Parent and its consolidated Parent Subsidiaries as of the respective dates thereof and the consolidated statements of income, cash flows and changes in stockholders’ equity for the respective periods then ended (subject, in the case of unaudited quarterly statements, to normal year-end audit adjustments and the absence of footnotes). (d) As of March 31, 2007, neither Parent nor any of the Parent Subsidiaries had any liabilities purpose or ~~obligations that would have been required by GAAP to be reflected in the consolidated balance sheet of Parent and the Parent Subsidiaries as~~ intended effect of such ~~date~~contract is to avoid disclosure of any material transaction involving, ~~except (i) for such~~ or material liabilities ~~and obligations reflected~~of, reserved against or otherwise disclosed in the consolidated balance sheet of Parent and the Parent Subsidiaries as of such date (including the notes thereto) that is included in the Parent SEC Financial Statements and (ii) for such liabilities and obligations as would not be reasonably expected to have, individually or in the aggregate, a Parent Material Adverse Effect (it is understood and agreed that the representations and warranties contained in this Section 5.5(d): (x) do not apply to matters described in any of Section 5.4, the other provisions of this Section 5.5, and Sections 5.7, 5.8, 5.9, 5.10, 5.11 and 5.17 (which are addressed exclusively in those Sections) and (y) shall not be deemed breached if such breach relates to a matter which is covered by a representation or warranty of Parent and Merger Sub contained in this Article V (other than this Section 5.5(d)) that contains a “Parent’s Knowledge” qualification). (e) Since December 31, 2006 to the date of this Agreement, (i) neither Parent nor any Parent Subsidiary nor, to Parent’s Knowledge, any director, officer, auditor, accountant or representative of Parent or any of the Parent Subsidiaries has received any written complaint, allegation, assertion or claim that Parent or any of the Parent Subsidiaries has engaged in improper or illegal accounting or auditing practices or maintains improper or inadequate internal accounting controls relating to Parent and the Parent Subsidiaries, taken as a whole, (ii) no attorney representing Parent or any Parent Subsidiary has made a report to Parent’s chief legal officer, chief executive officer or Board of Directors (or any committee thereof) pursuant to the SEC’s Standards of Professional Conduct for Attorneys (17 CFR Part 205), and (iii) Parent has disclosed to its ~~outside auditors any fraud, whether or not material, of which there is Parent’s Knowledge that involves management or other employees who have a significant role~~ subsidiaries in Parent’s ~~internal control over~~ or such subsidiary’s published financial ~~reporting~~statements or other Parent SEC Documents.

Appears in 1 contract

Sources: Merger Agreement (Markit Ltd.)

SEC Documents; Financial Statements; Undisclosed Liabilities. (a) ~~Parent~~ The Company has filed all reports, schedules, ~~forms~~ forms, proxy statements and registration statements with the SEC required to be filed by it pursuant to the Securities Act ~~and the Securities Act Rules,~~ or the Exchange ~~Act and the Exchange Act Rules~~Act, in each such case ~~since January 1~~from December 31, ~~2005~~ 2010 through the date of this Agreement (collectively, ~~and in each case including all annexes and schedules thereto and documents incorporated by reference therein,~~ the “~~Parent~~ SEC Documents”). As of their respective dates (or if subsequently amended or superseded by a filing prior to the date of this Agreement, on the date of such filing), the ~~Parent~~ SEC Documents complied as to form in all material respects with the applicable requirements of the Securities Act or the Exchange Act, as the case may be, and ~~the rules and regulations of the SEC promulgated thereunder applicable to such Parent SEC Documents, and~~ none of the ~~Parent~~ SEC Documents as of such dates contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading. ~~To Parent’s Knowledge~~Neither the Company nor any Company Subsidiary has listed its securities on any stock exchange in any jurisdiction, as other than the Shares listed by the Company on NASDAQ. No Company Subsidiary is separately subject to the periodic reporting requirements of the Exchange Act. As of the date ~~hereof~~of this Agreement, none of the ~~Parent~~ SEC Documents is are subject to outstanding comments in comment letters received by the ~~subject of ongoing~~ Company from the SEC ~~review~~staff. (b) Parent is in compliance with, and has complied, in all material respects with (i) the applicable provisions of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002 and the related rules and regulations promulgated thereunder, and (ii) the applicable listing and corporate governance rules and regulations of NASDAQ. Parent has established and maintains disclosure controls and procedures and internal control over financial reporting (as such terms are defined in paragraphs (e) and (f), respectively, of Rule 13a-15 under the Exchange Act) as required by Rule 13a-15 under the Exchange Act. Parent’s disclosure controls and procedures are reasonably designed to ensure that all material information required to be disclosed by Parent in the reports that it files or furnishes under the Exchange Act is recorded, processed, summarized and reported within the time periods specified in the rules and forms of the SEC, and that all such material information is accumulated and communicated to the management of Parent as appropriate to allow timely decisions regarding required disclosure and to make the certifications required pursuant to Sections 302 and 906 of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act. The management of Parent has completed its assessment of the effectiveness of Parent’s internal control over financial reporting in compliance with the requirements of Section 404 of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act for the year ended December 31, 2006, and such assessment concluded that such controls were effective to provide reasonable assurance regarding the reliability of Parent’s financial reporting and the preparation of Parent’s financial statements for external purposes in accordance with GAAP. Parent has disclosed, based on its assessment of the effectiveness of Parent’s internal control over financial reporting in compliance with the requirements of Section 404 of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act for the year ended December 31, 2006, to Parent’s independent registered accounting firm and the audit committee of the Board of Directors of Parent (A) any significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect Parent’s ability to record, process, summarize and report financial information and (B) any fraud, whether or not material, of which there is Parent’s Knowledge that involves management or other employees who have a significant role in Parent’s internal control over financial reporting for the year ended December 31, 2006. Parent any has made available to the Company a summary of any such disclosures made by management to such accounting firm or audit committee for the year ended December 31, 2006. (c) The consolidated financial statements of ~~Parent~~ the Company included in the ~~Parent~~ SEC Documents (the “~~Parent~~ SEC Financial Statements”~~) (i~~) have been prepared in accordance with GAAP (except as may be otherwise indicated therein or in the notes thereto and except, in the case of unaudited consolidated quarterly statements, as permitted by Form 10-Q of the Exchange Act), applied on a consistent basis during the periods involved, ~~(ii) complied in all material respects with published rules and regulations of the SEC with respect thereto,~~ and (~~iii~~except as may be indicated therein or in the notes thereto or as subsequently amended or superseded by a filing prior to the date of this Agreement) fairly present in all material respects the consolidated financial position of ~~Parent~~ the Company and its consolidated ~~Parent~~ Subsidiaries as of the respective dates thereof and the consolidated statements of operations, statements of comprehensive income, ~~cash flows and changes in~~ stockholders’ equity and cash flows for the respective periods then ended (subject, in the case of unaudited quarterly statements, to normal year-end audit adjustments and the absence of footnotes). The unaudited consolidated balance sheet of the Company as of December 31, 2013 (the “Balance Sheet Date”) provided to Parent prior to the date of this Agreement (the “Balance Sheet”) and the unaudited consolidated income statement of the Company for the year ended December 31, 2013 provided to Parent prior to the date of this Agreement have been prepared in accordance with GAAP (except as may be otherwise indicated therein or in the notes thereto), applied on a consistent basis during the periods involved, and (except as may be indicated therein or in the notes thereto) fairly present in all material respects the consolidated financial position of the Company and its consolidated Subsidiaries as of, and for the period ended on, the Balance Sheet Date. (dc) ~~As of March 31, 2007, neither Parent~~ Neither the Company nor any of the ~~Parent~~ Company Subsidiaries ~~had~~ has any liabilities or obligations that would ~~have been~~ be required by GAAP to be reflected or reserved against in ~~the~~ a consolidated balance sheet of ~~Parent and~~ the ~~Parent Subsidiaries as of such date~~Company, except (i) for such liabilities and obligations reflected, reserved against or otherwise disclosed in the ~~consolidated balance sheet of Parent and the Parent Subsidiaries as of such date~~ Balance Sheet (including the notes thereto~~) that is included in the Parent SEC Financial Statements and~~ ), (ii) for such liabilities and obligations incurred since the Balance Sheet Date in the ordinary course of business consistent with past practice, (iii) for such liabilities and obligations incurred under this Agreement or in connection with the Transactions, (iv) for such liabilities and obligations addressed in any of the other representations or warranties made by the Company in this Agreement (disregarding any thresholds specified therein), (v) for such liabilities and obligations described in any Section of the Company Disclosure Schedule, and (vi) for such other liabilities and obligations as would not ~~be reasonably expected to have~~constitute, individually or in the aggregate, a ~~Parent~~ Company Material Adverse ~~Effect (it is understood and agreed that the representations and warranties contained in this Section 5.5(d): (x) do not apply to matters described in any~~ Effect. As of Section 5.4, the other provisions of this Section 5.5, and Sections 5.7, 5.8, 5.9, 5.10, 5.11 and 5.17 (which are addressed exclusively in those Sections) and (y) shall not be deemed breached if such breach relates to a matter which is covered by a representation or warranty of Parent and Merger Sub contained in this Article V (other than this Section 5.5(d)) that contains a “Parent’s Knowledge” qualification). (e) Since December 31, 2006 to the date of this Agreement, there are no off-balance sheet arrangements to which the Company or any Company Subsidiary is a party required to be disclosed pursuant to Item 303(a)(4) of Regulation S-K promulgated under the Securities Act that have not been disclosed in the SEC Documents. (id) ~~neither Parent nor any Parent Subsidiary nor~~The Company is in compliance in all material respects with the applicable provisions of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002 (the “▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act”) and the related rules and regulations promulgated thereunder. The Company has established and maintains disclosure controls and procedures and internal control over financial reporting (as such terms are defined in paragraphs (e) and (f), respectively, of Rule 13a-15 under the Exchange Act) as required by Rule 13a-15 under the Exchange Act. The Company’s disclosure controls and procedures are reasonably designed to ensure that all material information required to be disclosed by the Company in the reports that it files or submits under the Exchange Act is recorded, processed, summarized and reported within the time periods specified in the rules and forms of the SEC, and that all such material information is accumulated and communicated to the management of the Company as appropriate to allow timely decisions regarding required disclosure and to make the certifications required pursuant to Sections 302 and 906 of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act. The management of the Company completed its assessment of the effectiveness of the Company’s internal control over financial reporting in compliance with the requirements of Section 404 of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act for the fiscal year ended December 31, 2012, and such assessment concluded that as of December 31, 2012 such controls were effective. The Company’s principal executive officer and its principal financial officer have disclosed, based on their most recent evaluation, to ~~Parent~~the Company’s ~~Knowledge, any director, officer, auditor, accountant or representative of Parent or any~~ auditors and the Audit Committee of the ~~Parent Subsidiaries has received~~ Company Board (x) all significant deficiencies, if any, in the design or operation of internal control over financial reporting which are reasonably likely to materially adversely affect the Company’s ability to record, process, summarize and report financial data and have identified to such auditors any ~~written complaint, allegation, assertion or claim that Parent or any of the Parent Subsidiaries has engaged~~ material weaknesses in ~~improper or illegal accounting or auditing practices or maintains improper or inadequate~~ internal ~~accounting~~ controls relating to Parent and the Parent Subsidiaries, taken as a whole, (ii) no attorney representing Parent or any Parent Subsidiary has made a report to Parent’s chief legal officer, chief executive officer or Board of Directors (or any committee thereof) pursuant to the SEC’s Standards of Professional Conduct for Attorneys (17 CFR Part 205), and (~~iii~~y) ~~Parent has disclosed to its outside auditors~~ any fraud, whether or not material, of which there is ~~Parent’s~~ Company Knowledge and that involves management or other employees of the Company or any of the Company Subsidiaries who have a significant role in ~~Parent~~the Company’s internal control over financial reporting. (e) Since January 1, 2011, the Company has maintained and maintains a standard system of accounting established and administered in accordance with GAAP in all material respects. (f) Since January 1, 2011, the Company has been and is in compliance with applicable listing and corporate governance rules and regulations of NASDAQ.

Appears in 1 contract

Sources: Merger Agreement (Chindex International Inc)

SEC Documents; Financial Statements; Undisclosed Liabilities. (a) ~~Parent has~~ Copper and its Subsidiaries have filed or furnished all reports, schedules, ~~forms~~ forms, statements, certifications and ~~registration statements with the SEC~~ other documents (including exhibits and all other information incorporated therein) required to be filed by it ~~pursuant to~~ with the ~~Securities Act and the Securities Act Rules~~SEC since December 31, ~~or the Exchange Act and the Exchange Act Rules, in each such case since January 1, 2005~~ 2021 (~~collectively, and in each case including all annexes and schedules thereto and documents incorporated by reference therein,~~ the “~~Parent~~ Copper SEC Documents”). As of their respective ~~dates~~ dates, the Copper SEC Document complied, as of its filing date (or or, if ~~subsequently~~ amended or superseded by a subsequent filing prior to the date of this Agreement, on the date of such amended or superseding filing), ~~the Parent SEC Documents complied as to form~~ in all material respects with the requirements of the Securities ~~Act or~~ Act, the Exchange Act and the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act, as the case may be, and the rules and regulations of the SEC promulgated thereunder applicable to ~~such Parent~~ the Copper SEC Documents, and none of the ~~Parent~~ Copper SEC Documents ~~as of such dates~~ when filed and at their respective effective times, if applicable, contained any untrue statement of a material fact or omitted 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 were made, not misleading; provided, however, in each case, that no representation is made as to the accuracy of any financial projections or forward-looking statements included or incorporated by reference in any Copper SEC Documents. ~~To Parent’s Knowledge, as~~ As of the date ~~hereof~~of this Agreement, there are no outstanding or unresolved comments received from the SEC with respect to any of the Copper SEC Documents, and, to the Knowledge of Copper, none of the ~~Parent~~ Copper SEC Documents is the subject of ~~ongoing~~ any outstanding SEC ~~review~~comment or outstanding SEC investigation. (b) ~~Parent is~~ The consolidated financial statements (including all related notes and schedules) of Copper and its Subsidiaries included in ~~compliance with, and has complied,~~ the Copper SEC Documents (the “Copper Financial Statements”) were prepared in all material respects in accordance with GAAP (iexcept, in the case of unaudited statements, as permitted by the SEC) applied on a consistent basis during the ~~applicable provisions~~ periods involved (except as may be indicated in the notes thereto) and fairly present in all material respects the consolidated financial position of Copper and its consolidated Subsidiaries as of the ~~▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002~~ dates thereof and the ~~related rules~~ consolidated results of their operations and ~~regulations promulgated thereunder~~cash flows for the periods then ended (subject, in the case of unaudited statements, to normal year-end audit adjustments which are not material and to any other adjustments described therein, including the notes thereto). (iic) Except (A) as reflected or reserved against in Copper’s unaudited balance sheet as of June 25, 2023 (or the ~~applicable listing~~ notes thereto) as included in the Copper Filed SEC Documents, (B) for liabilities and ~~corporate governance rules~~ obligations incurred in the ordinary course of business consistent with past practice since June 25, 2023 and ~~regulations~~ for liabilities and obligations incurred in connection with or contemplated by this Agreement, neither Copper nor any of ~~NASDAQ. Parent~~ its Subsidiaries has ~~established~~ any liabilities or obligations of any nature (whether accrued, absolute, contingent or otherwise) that would be required by GAAP to be reflected on a consolidated balance sheet of Copper and its Subsidiaries (or in the notes thereto) that, individually or in the aggregate, would reasonably be expected to have a Material Adverse Effect on Copper. (d) Copper maintains ~~disclosure controls and procedures and~~ a system of “internal control over financial ~~reporting~~ reporting” (as ~~such terms are~~ defined in ~~paragraphs (e~~Rules 13a-15(f) and ~~(f), respectively,~~ 15d-15(f) of ~~Rule 13a-15 under~~ the Exchange Act) sufficient to provide reasonable assurance (i) that transactions are recorded as ~~required by Rule 13a-15 under~~ necessary to permit preparation of financial statements in conformity with GAAP, consistently applied, (ii) that transactions are executed only in accordance with the authorization of management and (iii) regarding prevention or timely detection of the unauthorized acquisition, use or disposition of Copper’s properties or assets. Since January 1, 2023, none of Copper, Copper’s independent accountants, the Copper Board or its audit committee has received any oral or written notification of any (i) “significant deficiency” in the internal controls over financial reporting of Copper, (ii) “material weakness” in the internal controls over financial reporting of Copper or (iii) fraud, whether or not material, that involves management or other employees of Copper who have a significant role in the internal controls over financial reporting of Copper. (e) The “disclosure controls and procedures” (as defined in Rules 13a-15(e) and 15d-15(e) of the Exchange Act~~. Parent’s disclosure controls and procedures~~ ) utilized by Copper are reasonably designed to ensure that all material information (both financial and non-financial) required to be disclosed by ~~Parent~~ Copper in the reports that it files or ~~furnishes~~ submits under the Exchange Act is recorded, processed, summarized and reported within the time periods specified in the rules and forms of the ~~SEC,~~ SEC and that all such ~~material~~ information required to be disclosed is accumulated and communicated to the management of ~~Parent~~ Copper, as ~~appropriate~~ appropriate, to allow timely decisions regarding required disclosure and to enable the chief executive officer and chief financial officer of Copper to make the certifications required ~~pursuant to Sections 302 and 906 of~~ under the ~~▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act. The management of Parent has completed its assessment of the effectiveness of Parent’s internal control over financial reporting in compliance~~ Exchange Act with the requirements of Section 404 of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act for the year ended December 31, 2006, and such assessment concluded that such controls were effective to provide reasonable assurance regarding the reliability of Parent’s financial reporting and the preparation of Parent’s financial statements for external purposes in accordance with GAAP. Parent has disclosed, based on its assessment of the effectiveness of Parent’s internal control over financial reporting in compliance with the requirements of Section 404 of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act for the year ended December 31, 2006, to Parent’s independent registered accounting firm and the audit committee of the Board of Directors of Parent (A) any significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect Parent’s ability to record, process, summarize and report financial information and (B) any fraud, whether or not material, of which there is Parent’s Knowledge that involves management or other employees who have a significant role in Parent’s internal control over financial reporting for the year ended December 31, 2006. Parent any has made available to the Company a summary of any such disclosures made by management respect to such ~~accounting firm or audit committee for the year ended December 31, 2006~~reports. (cf) ~~The consolidated financial statements~~ Neither Copper nor any of ~~Parent included~~ its Subsidiaries is a party to, or has any commitment to become a party to, any joint venture, off-balance sheet partnership or any similar contract (including any contract or arrangement relating to any transaction or relationship between or among Copper and any of its Subsidiaries, on the one hand, and any unconsolidated Affiliate, including any structured finance, special purpose or limited purpose entity or Person, on the other hand, or any “off-balance sheet arrangements” (as defined in ~~the Parent SEC Documents (the “Parent SEC Financial Statements”~~Item 303(a) ~~(i) have been prepared in accordance with GAAP (except as may be otherwise indicated therein or in the notes thereto and except, in the case~~ of ~~unaudited consolidated quarterly statements, as permitted by Form 10~~Regulation S-~~Q of~~ K under the Exchange Act)), ~~applied on a consistent basis during~~ where the ~~periods involved~~result, (ii) complied in all material respects with published rules and regulations of the SEC with respect thereto, and (iii) fairly present in all material respects the consolidated financial position of Parent and its consolidated Parent Subsidiaries as of the respective dates thereof and the consolidated statements of income, cash flows and changes in stockholders’ equity for the respective periods then ended (subject, in the case of unaudited quarterly statements, to normal year-end audit adjustments and the absence of footnotes). (d) As of March 31, 2007, neither Parent nor any of the Parent Subsidiaries had any liabilities purpose or ~~obligations that would have been required by GAAP to be reflected in the consolidated balance sheet of Parent and the Parent Subsidiaries as~~ intended effect of such ~~date~~contract is to avoid disclosure of any material transaction involving, ~~except (i) for such~~ or material liabilities ~~and obligations reflected~~of, reserved against or otherwise disclosed in the consolidated balance sheet of Parent and the Parent Subsidiaries as of such date (including the notes thereto) that is included in the Parent SEC Financial Statements and (ii) for such liabilities and obligations as would not be reasonably expected to have, individually or in the aggregate, a Parent Material Adverse Effect (it is understood and agreed that the representations and warranties contained in this Section 5.5(d): (x) do not apply to matters described in any of Section 5.4, the other provisions of this Section 5.5, and Sections 5.7, 5.8, 5.9, 5.10, 5.11 and 5.17 (which are addressed exclusively in those Sections) and (y) shall not be deemed breached if such breach relates to a matter which is covered by a representation or warranty of Parent and Merger Sub contained in this Article V (other than this Section 5.5(d)) that contains a “Parent’s Knowledge” qualification). (e) Since December 31, 2006 to the date of this Agreement, (i) neither Parent nor any Parent Subsidiary nor, to Parent’s Knowledge, any director, officer, auditor, accountant or representative of Parent Copper or any of ~~the Parent~~ its Subsidiaries ~~has received any written complaint, allegation, assertion~~ in Copper’s or claim that Parent or any of the Parent Subsidiaries has engaged in improper or illegal accounting or auditing practices or maintains improper or inadequate internal accounting controls relating to Parent and the Parent Subsidiaries, taken as a whole, (ii) no attorney representing Parent or any Parent Subsidiary has made a report to Parentsuch Subsidiary’s chief legal officer, chief executive officer or Board of Directors (or any committee thereof) pursuant to the SEC’s Standards of Professional Conduct for Attorneys (17 CFR Part 205), and (iii) Parent has disclosed to its outside auditors any fraud, whether or not material, of which there is Parent’s Knowledge that involves management published financial statements or other ~~employees who have a significant role in Parent’s internal control over financial reporting~~Copper SEC Documents.

Appears in 1 contract

Sources: Merger Agreement (Cedar Fair L P)

SEC Documents; Financial Statements; Undisclosed Liabilities. (a) ~~Parent~~ Except as indicated on Schedule 2.6 to the Grove Disclosure Letter, Grove has filed all required reports, schedules, ~~forms~~ forms, statements and ~~registration statements~~ other documents with the SEC ~~required to be filed by it pursuant to the Securities Act and the Securities Act Rules, or the Exchange Act and the Exchange Act Rules, in each such case~~ since January 1, ~~2005~~ 1995 through the date hereof (~~collectively, and in each case including all annexes and schedules thereto and documents incorporated by reference therein,~~ the ~~“Parent~~ "Grove SEC Documents”)") on a timely basis. As Schedule 2.6 of ~~their respective dates~~ the Grove Disclosure Letter contains a complete list (without exhibits) of all Grove SEC Documents filed by Grove with the SEC since January 1, 1995 and on or ~~if subsequently amended or superseded by a filing~~ prior to the date of this Agreement. All of the Grove SEC Documents (other than preliminary material), on as of their respective filing dates, or as of the date of ~~such~~ the last amendment thereof (if amended after filing), ~~the Parent SEC Documents~~ complied ~~as to form~~ in all material respects with ~~the~~ all applicable requirements of the Securities ~~Act or~~ Act, and the Exchange ~~Act~~Act and, ~~as the case may be~~in each case, ~~and~~ the rules and regulations ~~of the SEC~~ promulgated thereunder applicable to such ~~Parent~~ Grove SEC Documents~~, and none~~ . None of the ~~Parent~~ Grove SEC Documents as at the time of ~~such dates~~ filing contained any untrue statement of a material fact or omitted to state a any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading~~. To Parent’s Knowledge~~, ~~as of~~ except to the extent such statements have been modified or superseded by later Grove SEC Documents filed on a non-confidential basis prior to the date ~~hereof, none~~ of this Agreement. The consolidated financial statements of Grove included in the ~~Parent~~ Grove SEC Documents ~~is the subject of ongoing SEC review. (b) Parent is in compliance with, and has complied,~~ complied as to form in all material respects with ~~(i) the~~ applicable ~~provisions of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002~~ accounting requirements and the related rules and regulations promulgated thereunder, and (ii) the applicable listing and corporate governance rules and regulations of NASDAQ. Parent has established and maintains disclosure controls and procedures and internal control over financial reporting (as such terms are defined in paragraphs (e) and (f), respectively, of Rule 13a-15 under the Exchange Act) as required by Rule 13a-15 under the Exchange Act. Parent’s disclosure controls and procedures are reasonably designed to ensure that all material information required to be disclosed by Parent in the reports that it files or furnishes under the Exchange Act is recorded, processed, summarized and reported within the time periods specified in the rules and forms of the SEC, and that all such material information is accumulated and communicated to the management of Parent as appropriate to allow timely decisions regarding required disclosure and to make the certifications required pursuant to Sections 302 and 906 of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act. The management of Parent has completed its assessment of the effectiveness of Parent’s internal control over financial reporting in compliance with the requirements of Section 404 of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act for the year ended December 31, 2006, and such assessment concluded that such controls were effective to provide reasonable assurance regarding the reliability of Parent’s financial reporting and the preparation of Parent’s financial statements for external purposes in accordance with GAAP. Parent has disclosed, based on its assessment of the effectiveness of Parent’s internal control over financial reporting in compliance with the requirements of Section 404 of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act for the year ended December 31, 2006, to Parent’s independent registered accounting firm and the audit committee of the Board of Directors of Parent (A) any significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect Parent’s ability to record, process, summarize and report financial information and (B) any fraud, whether or not material, of which there is Parent’s Knowledge that involves management or other employees who have a significant role in Parent’s internal control over financial reporting for the year ended December 31, 2006. Parent any has made available to the Company a summary of any such disclosures made by management to such accounting firm or audit committee for the year ended December 31, 2006. (c) The consolidated financial statements of Parent included in the Parent SEC Documents (the “Parent SEC Financial Statements”) (i) have been prepared in accordance with GAAP (except as may be otherwise indicated therein or in the notes thereto and except, in the case of unaudited consolidated quarterly statements, as permitted by Form 10-Q of the Exchange Act), applied on a consistent basis during the periods involved, (ii) complied in all material respects with published rules and regulations of the SEC with respect thereto, have been prepared in accordance with accounting principles generally accepted in the United States ("GAAP") (except, in the case of unaudited statements, as permitted by the applicable rules and regulations of the SEC) applied on a consistent basis during the periods involved (~~iii~~except as may be indicated therein or in the notes thereto) and fairly ~~present~~ presented, in accordance with the applicable requirements of GAAP and the applicable rules and regulations of the SEC, in all material ~~respects~~ respects, the consolidated financial position of ~~Parent~~ Grove and ~~its~~ the consolidated ~~Parent Subsidiaries~~ Grove Subsidiaries, taken as a whole, as of the ~~respective~~ dates thereof and the consolidated ~~statements~~ results of ~~income,~~ operations and cash flows ~~and changes in stockholders’ equity~~ for the ~~respective~~ periods then ended (subject, in the case of unaudited ~~quarterly~~ statements, to normal year-end audit adjustments, any other adjustments described therein and the ~~absence~~ fact that certain information and notes have been condensed or omitted in accordance with the Exchange Act). Schedule 2.6 of ~~footnotes). (d) As~~ the Grove Disclosure Letter sets forth all Grove Subsidiaries which are not consolidated for accounting purposes as of ~~March 31, 2007~~the date hereof. Except for liabilities and obligations set forth in the Grove SEC Documents or in Schedule 2.6 to the Grove Disclosure Letter, neither ~~Parent~~ Grove nor any of the ~~Parent~~ Grove Subsidiaries ~~had~~ has any liabilities or obligations ~~that would have been~~ of any nature (whether accrued, absolute, contingent or otherwise) required by GAAP to be ~~reflected in the~~ set forth on a consolidated balance sheet of ~~Parent and the Parent Subsidiaries as of such date, except (i) for such liabilities and obligations reflected, reserved against~~ Grove or ~~otherwise disclosed~~ in the ~~consolidated balance sheet of Parent~~ notes thereto and the Parent Subsidiaries as of such date (including the notes thereto) that is included in the Parent SEC Financial Statements and (ii) for such liabilities and obligations as would not be reasonably expected to havewhich, individually or in the aggregate, would have a ~~Parent~~ Grove Material Adverse ~~Effect~~ Effect, after taking into account any assets acquired or services provided in connection with the incurrence of such liabilities or obligations. (~~it is understood~~ b) Grove has at all times been in material compliance with the rules and ~~agreed that~~ regulations of the ~~representations and warranties contained in this Section 5.5(d):~~ American Stock Exchange (x) do not apply to matters described in any of Section 5.4, the other provisions of this Section 5.5, and Sections 5.7, 5.8, 5.9, 5.10, 5.11 and 5.17 (which are addressed exclusively in those Sections) and (y) shall not be deemed breached if such breach relates to a matter which is covered by a representation or warranty of Parent and Merger Sub contained in this Article V (other than this Section 5.5(d)) that contains a “Parent’s Knowledge” qualification"AMEX"). (ec) ~~Since December 31, 2006~~ At no time has Grove OP or any other Grove Subsidiary been subject to the ~~date~~ reporting requirements of ~~this Agreement, (i~~Sections 13 or 15(d) ~~neither Parent nor any Parent Subsidiary nor, to Parent’s Knowledge, any director, officer, auditor, accountant or representative of Parent or any~~ of the Parent Subsidiaries has received any written complaint, allegation, assertion or claim that Parent or any of the Parent Subsidiaries has engaged in improper or illegal accounting or auditing practices or maintains improper or inadequate internal accounting controls relating to Parent and the Parent Subsidiaries, taken as a whole, (ii) no attorney representing Parent or any Parent Subsidiary has made a report to Parent’s chief legal officer, chief executive officer or Board of Directors (or any committee thereof) pursuant to the SEC’s Standards of Professional Conduct for Attorneys (17 CFR Part 205), and (iii) Parent has disclosed to its outside auditors any fraud, whether or not material, of which there is Parent’s Knowledge that involves management or other employees who have a significant role in Parent’s internal control over financial reportingExchange Act.

Appears in 1 contract

Sources: Merger Agreement (Grove Property Trust)

SEC Documents; Financial Statements; Undisclosed Liabilities. (a) Parent has filed all reports, schedules, ~~forms~~ forms, statements and ~~registration statements with the SEC~~ other documents required to be filed by ~~it pursuant~~ Parent with the SEC since October 8, 2021 and prior to the ~~Securities Act and the Securities Act Rules, or the Exchange Act and the Exchange Act Rules, in each such case since January 1, 2005~~ date of this Agreement (~~collectively, and in each case including all annexes and schedules thereto and documents incorporated by reference therein,~~ the “Parent SEC Documents”). As of ~~their~~ its respective ~~dates (or if subsequently amended or superseded by a filing prior to the date of this Agreement~~date, ~~on the date of such filing), the~~ each Parent SEC ~~Documents~~ Document complied ~~as to form~~ in all material respects with the requirements of the Exchange Act, the Securities Act or the ~~Exchange~~ ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act, as the case may be, and the rules and regulations of the SEC promulgated thereunder applicable to such Parent SEC ~~Documents~~Document, ~~and none of~~ and, except to the extent that information contained in such Parent SEC ~~Documents as~~ Document has been revised, amended, modified or superseded (prior to the date of ~~such dates contained~~ this Agreement) by a later filed Parent SEC Document, did not contain any untrue statement of a material fact or ~~omitted~~ 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 were made, not misleading~~. To Parent’s Knowledge, as of the date hereof, none of the Parent SEC Documents is the subject of ongoing SEC review~~. (b) The consolidated financial statements of Parent is included in ~~compliance with~~the Parent SEC Documents, including the notes thereto and ~~has complied~~all related compilations, reviews and other reports issued by Parent’s accountants with respect thereto (the “Parent Financial Statements”), comply as to form in all material respects with ~~(i) the~~ applicable ~~provisions of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002~~ accounting requirements and the ~~related rules and regulations promulgated thereunder, and (ii) the applicable listing and corporate governance~~ published rules and regulations of ~~NASDAQ~~the SEC with respect thereto. The Parent Financial Statements fairly present the financial condition and the results of operations, cash flows and changes in stockholders’ equity of Parent (on a consolidated basis) as of the respective dates of and for the periods referred to in the Parent Financial Statements, all in accordance with GAAP. The Parent Financial Statements: (i) have been prepared from the books and records of Parent and the Parent Subsidiaries in accordance with GAAP consistently applied during the periods covered thereby (except as otherwise disclosed therein); (ii) are complete and correct in all material respects; and (iii) fairly present in all material respects the consolidated financial condition and the results of operations, cash flows and changes in stockholders’ equity of Parent (on a consolidated basis) as of the respective dates of and for the periods referred to in the Parent Financial Statements. The books and records of Parent and the Parent Subsidiaries, are true and complete, have been maintained in accordance with sound business practices and accurately present and reflect in all material respects all of the transactions and actions therein described. (c) Parent and the Parent Subsidiaries do not have any liabilities or obligations of a nature required by GAAP to be reflected on a consolidated balance sheet of Parent or in the notes thereto, except (i) as disclosed, reflected or reserved against in the most recent balance sheet included in the Parent Financial Statements or the notes thereto, (ii) for liabilities and obligations incurred in the Ordinary Course of Business since the date of the most recent balance sheet included in the Parent Financial Statements and not in violation hereof, (iii) arising pursuant to this Agreement or the Ancillary Agreements to which Parent or any of the Parent Subsidiaries is a party or incurred in connection with the Merger or (iv) as would not reasonably be expected to, individually or in the aggregate, be material to Parent and the Parent Subsidiaries taken as a whole. This representation shall not be deemed breached as a result of changes in GAAP or in Law after the date hereof. (d) Parent maintains, and at all times since October 8, 2021, has ~~established and maintains disclosure controls and procedures and~~ maintained, a system of internal control over financial reporting (as ~~such terms are~~ defined in ~~paragraphs (e) and (f), respectively, of~~ Rule 13a-15 under the Exchange Act) ~~as required by Rule 13a-15 under the Exchange Act. Parent’s disclosure controls and procedures are~~ reasonably designed to ~~ensure~~ provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with GAAP, and includes those policies and procedures that ~~all material information required~~ (i) pertain to ~~be disclosed by Parent~~ the maintenance of records that in reasonable detail accurately and fairly reflect the ~~reports that it files or furnishes under the Exchange Act is recorded, processed, summarized~~ transactions and ~~reported within the time periods specified in the rules and forms~~ dispositions of the ~~SEC,~~ assets of the Parent; (ii) provide reasonable assurance that transactions are recorded as necessary to permit preparation of financial statements in conformity with GAAP and that ~~all such material information is accumulated~~ receipts and ~~communicated to~~ expenditures are being made only in accordance with authorizations of management and the ~~management~~ Parent Board; and (iii) provide reasonable assurance regarding prevention or timely detection of ~~Parent as appropriate to allow timely decisions regarding required disclosure and to make the certifications required pursuant to Sections 302 and 906~~ unauthorized acquisition, use or disposition of the ~~▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act~~assets of the Parent that could have a material effect on the financial statements. The Parent’s management ~~of Parent~~ has completed ~~its~~ an assessment of the effectiveness of the Parent’s system of internal control over financial reporting in compliance with the requirements of Section 404 of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act for the year ended December 31, ~~2006~~2022, and such assessment concluded that such controls were effective to provide reasonable assurance regarding the reliability of Parent’s financial reporting and the preparation of Parent’s financial statements for external purposes in accordance with GAAP. Parent has disclosedand, based on its assessment of the effectiveness of Parent’s internal control over financial reporting in compliance with the requirements of Section 404 of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act for the year ended December 31, 2006, to Parent’s independent registered accounting firm and the audit committee of the Board of Directors of Parent (A) any significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect Parent’s ability to record, process, summarize and report financial information and (B) any fraud, whether or not material, of which there is Parent’s Knowledge that involves management or other employees who have a significant role in Parent’s internal control over financial reporting for the year ended December 31, 2006. Parent any has made available to the Company a summary of any such disclosures made by management to such accounting firm or audit committee for the year ended December 31, 2006. (c) The consolidated financial statements of Parent included except as set forth in the Parent SEC Documents (the “Parent SEC Financial Statements”) (i) have been prepared in accordance with GAAP (except as may be otherwise indicated therein or in the notes thereto and except, in the case of unaudited consolidated quarterly statements, as permitted by Form 10-Q of the Exchange Act), applied on a consistent basis during the periods involved, (ii) complied in all material respects with published rules and regulations of the SEC with respect thereto, and (iii) fairly present in all material respects the consolidated financial position of Parent and its consolidated Parent Subsidiaries as of the respective dates thereof and the consolidated statements of income, cash flows and changes in stockholders’ equity for the respective periods then ended (subject, in the case of unaudited quarterly statements, to normal year-end audit adjustments and the absence of footnotes). (d) As of March 31, 2007, neither Parent nor any of the Parent Subsidiaries had any liabilities or obligations that would have been required by GAAP to be reflected in the consolidated balance sheet of Parent and the Parent Subsidiaries as of such date, except (i) for such liabilities and obligations reflected, reserved against or otherwise disclosed in the consolidated balance sheet of Parent and the Parent Subsidiaries as of such date (including the notes thereto) that is included in the Parent SEC Financial Statements and (ii) for such liabilities and obligations as would not be reasonably expected to have, individually or in the aggregate, a Parent Material Adverse Effect (it is understood and agreed that the representations and warranties contained in this Section 5.5(d): (x) do not apply to matters described in any of Section 5.4, the other provisions of this Section 5.5, and Sections 5.7, 5.8, 5.9, 5.10, 5.11 and 5.17 (which are addressed exclusively in those Sections) and (y) shall not be deemed breached if such breach relates to a matter which is covered by a representation or warranty of Parent and Merger Sub contained in this Article V (other than this Section 5.5(d)) that contains a “Parent’s Knowledge” qualification). (e) Since December 31, 2006 filed prior to the date of this Agreement, that assessment concluded that those controls were effective. (e) Parent maintains, and at all times since October 8, 2021, has maintained disclosure controls and procedures as defined in and required by Rule 13a-15 or 15d-15 under the Exchange Act that are designed to ensure that all information required to be disclosed in Parent’s reports that it files or submits under the Exchange Act is recorded, processed, summarized and reported within the time periods specified in the rules and forms of the SEC and that all such information is accumulated and communicated to Parent’s management as appropriate to allow timely decisions regarding required disclosure and to enable the principal executive officer of Parent and the principal financial officer of Parent to make the certifications required under the Exchange Act with respect to such reports. (f) Parent is in compliance in all material respects with all current listing and corporate governance requirements of the Nasdaq. Parent Common Stock is registered pursuant to Section 12(b) or 12(g) of the Exchange Act, and Parent has taken no action designed to, or which to Knowledge of Parent is likely to have the effect of, terminating the registration of Parent Common Stock under the Exchange Act, nor has Parent received any notification that the SEC is contemplating terminating such registration. Parent has not, in the 12 months preceding the date hereof, received notice from Nasdaq to the effect that Parent is not in compliance with the listing or maintenance requirements of Nasdaq. Parent is and has no reason to believe that it will not in the foreseeable future continue to be, in compliance with all such listing and maintenance requirements. Parent Common Stock is currently eligible for electronic transfer through the DTC or another established clearing corporation and Parent is current in payment of the fees to the DTC (or such other established clearing corporation) in connection with such electronic transfer. (g) Except for matters resolved prior to the date hereof, since October 8, 2021, (i) ~~neither Parent nor~~ none of Parent, any Parent Subsidiary or any of their respective directors or officers, nor, to the Knowledge of Parent~~’s Knowledge~~, any ~~director~~of their respective employees, ~~officer~~auditors, ~~auditor, accountant~~ accountants or ~~representative of Parent or any of the Parent Subsidiaries~~ other Representatives 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 Parent, any Parent Subsidiary or their respective internal accounting controls, including any complaint, allegation, assertion or claim that Parent or any ~~of the~~ Parent ~~Subsidiaries~~ Subsidiary has engaged in ~~improper or illegal~~ questionable accounting or auditing ~~practices~~ practice, except as would not, individually or ~~maintains improper~~ in the aggregate, reasonably be expected to be material to the preparation or ~~inadequate internal accounting controls relating to Parent~~ accuracy of the Parent’s financial statements and ~~the Parent Subsidiaries, taken as a whole,~~ (ii) ~~no attorney representing~~ neither Parent or nor any Parent Subsidiary has ~~made a report~~ had any “material weakness” or “significant deficiency” that has not been resolved to the satisfaction of the Parent’s chief legal officer, chief executive officer or Board of Directors (or any committee thereof) pursuant to the SEC’s Standards of Professional Conduct for Attorneys (17 CFR Part 205), and (iii) Parent has disclosed to its outside auditors any fraud, whether or not material, of which there is Parent’s Knowledge that involves management or other employees who have a significant role in Parent’s internal control over financial reportingauditors.

Appears in 1 contract

Sources: Merger Agreement (Apexigen, Inc.)

SEC Documents; Financial Statements; Undisclosed Liabilities. (a) ~~Parent~~ The Company has filed all reports, schedules, ~~forms~~ forms, proxy statements and registration statements with the SEC required to be filed by it pursuant to the Securities Act ~~and the Securities Act Rules,~~ or the Exchange ~~Act and the Exchange Act Rules~~Act, in each such case ~~since January 1~~from March 29, ~~2005~~ 2009 through the date of this Agreement (collectively, ~~and in each case including all annexes and schedules thereto and documents incorporated by reference therein,~~ the “~~Parent~~ SEC Documents”). As of their respective dates (or if subsequently amended or superseded by a filing prior to the date of this Agreement, on the date of such filing), the ~~Parent~~ SEC Documents complied as to form in all material respects with the applicable requirements of the Securities Act or the Exchange Act, as the case may be, and ~~the rules and regulations of the SEC promulgated thereunder applicable to such Parent SEC Documents, and~~ none of the ~~Parent~~ SEC Documents as of such dates contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading. ~~To Parent’s Knowledge~~Neither the Company nor any Company Subsidiary has listed its securities on any stock exchange in any jurisdiction, as other than the Shares listed by the Company on NASDAQ. No Company Subsidiary is separately subject to the periodic reporting requirements of the Exchange Act. As of the date ~~hereof~~of this Agreement, none of the ~~Parent~~ SEC Documents is are subject to outstanding comments in comment letters received by the ~~subject of ongoing~~ Company from the SEC ~~review~~staff. (b) Parent is in compliance with, and has complied, in all material respects with (i) the applicable provisions of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002 and the related rules and regulations promulgated thereunder, and (ii) the applicable listing and corporate governance rules and regulations of NASDAQ. Parent has established and maintains disclosure controls and procedures and internal control over financial reporting (as such terms are defined in paragraphs (e) and (f), respectively, of Rule 13a-15 under the Exchange Act) as required by Rule 13a-15 under the Exchange Act. Parent’s disclosure controls and procedures are reasonably designed to ensure that all material information required to be disclosed by Parent in the reports that it files or furnishes under the Exchange Act is recorded, processed, summarized and reported within the time periods specified in the rules and forms of the SEC, and that all such material information is accumulated and communicated to the management of Parent as appropriate to allow timely decisions regarding required disclosure and to make the certifications required pursuant to Sections 302 and 906 of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act. The management of Parent has completed its assessment of the effectiveness of Parent’s internal control over financial reporting in compliance with the requirements of Section 404 of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act for the year ended December 31, 2006, and such assessment concluded that such controls were effective to provide reasonable assurance regarding the reliability of Parent’s financial reporting and the preparation of Parent’s financial statements for external purposes in accordance with GAAP. Parent has disclosed, based on its assessment of the effectiveness of Parent’s internal control over financial reporting in compliance with the requirements of Section 404 of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act for the year ended December 31, 2006, to Parent’s independent registered accounting firm and the audit committee of the Board of Directors of Parent (A) any significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect Parent’s ability to record, process, summarize and report financial information and (B) any fraud, whether or not material, of which there is Parent’s Knowledge that involves management or other employees who have a significant role in Parent’s internal control over financial reporting for the year ended December 31, 2006. Parent any has made available to the Company a summary of any such disclosures made by management to such accounting firm or audit committee for the year ended December 31, 2006. (c) The consolidated financial statements of ~~Parent~~ the Company included in the ~~Parent~~ SEC Documents (the “~~Parent~~ SEC Financial Statements”~~) (i~~) have been prepared in accordance with GAAP (except as may be otherwise indicated therein or in the notes thereto and except, in the case of unaudited consolidated quarterly statements, as permitted by Form 10-Q of the Exchange Act), applied on a consistent basis during the periods involved, ~~(ii) complied in all material respects with published rules and regulations of the SEC with respect thereto,~~ and (~~iii~~except as may be indicated therein or in the notes thereto or as subsequently amended or superseded by a filing prior to the date of this Agreement) fairly present in all material respects the consolidated financial position of ~~Parent~~ the Company and its consolidated ~~Parent~~ Subsidiaries as of the respective dates thereof and the consolidated statements of ~~income~~earnings, ~~cash flows and changes in~~ stockholders’ equity and cash flows for the respective periods then ended (subject, in the case of unaudited quarterly statements, to normal year-end audit adjustments and the absence of footnotes). (dc) ~~As of March 31, 2007, neither Parent~~ Neither the Company nor any of the ~~Parent~~ Company Subsidiaries ~~had~~ has any liabilities or obligations of any nature that would have been required by GAAP to be reflected in the consolidated balance sheet or notes thereto of ~~Parent and~~ the ~~Parent Subsidiaries~~ Company as of such date, except (i) for such liabilities and obligations reflected, reserved against or otherwise disclosed in the consolidated balance ~~sheet~~ sheets of ~~Parent and~~ the ~~Parent Subsidiaries~~ Company as of ~~such date~~ March 27, 2011 (including the notes thereto) that is are included in the ~~Parent~~ SEC Financial Statements ~~and~~ or as otherwise disclosed in the SEC Documents, (ii) for such liabilities and obligations incurred in the ordinary course of business consistent with past practice, (iii) for such liabilities and obligations incurred pursuant to or in connection with this Agreement or the Transactions, or (iv) for such liabilities and obligations as would not reasonably be ~~reasonably~~ expected to have, ~~individually or~~ in the aggregate, a ~~Parent~~ Company Material Adverse ~~Effect~~ Effect. There are no off-balance sheet arrangements to which the Company or any Company Subsidiary is a party required to be disclosed pursuant to Item 303(a)(4) of Regulation S-K promulgated under the Securities Act that have not been disclosed in the SEC Documents. (d) The Company is in compliance in all material respects with the applicable provisions of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002 (the “▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act”) and the related rules and regulations promulgated thereunder. The Company has established and maintains disclosure controls and procedures and internal control over financial reporting (as such terms are defined in paragraphs (e) and (f), respectively, of Rule 13a-15 under the Exchange Act) as required by Rule 13a-15 under the Exchange Act. The Company’s disclosure controls and procedures are reasonably designed to ensure that all material information required to be disclosed by the Company in the reports that it files or submits under the Exchange Act is ~~understood~~ recorded, processed, summarized and ~~agreed~~ reported within the time periods specified in the rules and forms of the SEC, and that all such material information is accumulated and communicated to the ~~representations~~ management of the Company as appropriate to allow timely decisions regarding required disclosure and ~~warranties contained~~ to make the certifications required pursuant to Sections 302 and 906 of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act. The management of the Company completed its assessment of the effectiveness of the Company’s internal control over financial reporting in ~~this~~ compliance with the requirements of Section ~~5.5(d):~~ 404 of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act for the fiscal year ended March 27, 2011, and such assessment concluded that as of March 27, 2011 such controls were effective. The Company’s principal executive officer and its principal financial officer have disclosed, based on their most recent evaluation, to the Company’s auditors and the Audit Committee of the Company Board (x) ~~do not apply to matters described~~ all significant deficiencies, if any, in ~~any~~ the design or operation of ~~Section 5.4, the other provisions of this Section 5.5, and Sections 5.7, 5.8, 5.9, 5.10, 5.11 and 5.17 (~~internal control over financial reporting which are ~~addressed exclusively~~ reasonably likely to materially adversely affect the Company’s ability to record, process, summarize and report financial data and have identified to such auditors any material weaknesses in ~~those Sections)~~ internal controls and (y) shall not be deemed breached if such breach relates to a matter which is covered by a representation or warranty of Parent and Merger Sub contained in this Article V (other than this Section 5.5(d)) that contains a “Parent’s Knowledge” qualification). (e) Since December 31, 2006 to the date of this Agreement, (i) neither Parent nor any Parent Subsidiary nor, to Parent’s Knowledge, any director, officer, auditor, accountant or representative of Parent or any of the Parent Subsidiaries has received any written complaint, allegation, assertion or claim that Parent or any of the Parent Subsidiaries has engaged in improper or illegal accounting or auditing practices or maintains improper or inadequate internal accounting controls relating to Parent and the Parent Subsidiaries, taken as a whole, (ii) no attorney representing Parent or any Parent Subsidiary has made a report to Parent’s chief legal officer, chief executive officer or Board of Directors (or any committee thereof) pursuant to the SEC’s Standards of Professional Conduct for Attorneys (17 CFR Part 205), and (iii) Parent has disclosed to its outside auditors any fraud, whether or not material, of which there is ~~Parent’s~~ Company Knowledge and that involves management or other employees of the Company or any of the Company Subsidiaries who have a significant role in ~~Parent~~the Company’s internal control over financial reporting. The Company has made available to Parent the disclosures referred to in the prior sentence (if any) made by the Company’s principal executive officer and its principal financial officer to the Company’s auditors and the Audit Committee of the Company Board from March 28, 2010 to the date of this Agreement.

Appears in 1 contract

Sources: Merger Agreement (Benihana Inc)

SEC Documents; Financial Statements; Undisclosed Liabilities. ~~(a) Parent~~ Cornerstone has furnished or filed all reports, schedules, ~~forms~~ forms, statements and ~~registration statements~~ other documents required to be furnished or filed with the SEC ~~required to be filed by it pursuant to~~ since December 31, 1997 through the date of this Agreement (the “Cornerstone SEC Documents”). All of the Cornerstone SEC Documents (other than preliminary material), as of their respective filing dates, complied in all material respects with all applicable requirements of the Securities Act and the Securities ~~Act Rules, or the~~ Exchange Act ~~and~~ of 1934, as amended (the “Exchange ~~Act Rules~~Act”), and, in each ~~such case since January 1~~case, 2005 (collectively, and in each case including all annexes and schedules thereto and documents incorporated by reference therein, the “Parent SEC Documents”). As of their respective dates (or if subsequently amended or superseded by a filing prior to the date of this Agreement, on the date of such filing), the Parent SEC Documents complied as to form in all material respects with the requirements of the Securities Act or the Exchange Act, as the case may be, and the rules and regulations ~~of the SEC~~ promulgated thereunder applicable to such ~~Parent~~ Cornerstone SEC Documents~~, and none~~ . None of the ~~Parent~~ Cornerstone SEC Documents as at the time of ~~such dates contained~~ filing contained, nor will any report, schedule, form, statement or other document filed by Cornerstone after the date hereof and prior to the Effective Time contain, any untrue statement of a material fact or omitted to state a any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading. ~~To Parent’s Knowledge~~The consolidated financial statements of Cornerstone included in the Cornerstone SEC Documents complied, as ~~of the date hereof, none of the Parent SEC Documents is the subject of ongoing SEC review. (b) Parent is in compliance with, and has complied,~~ to form in all material respects with ~~(i) the~~ applicable ~~provisions of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002~~ accounting requirements and the related rules and regulations promulgated thereunder, and (ii) the applicable listing and corporate governance rules and regulations of NASDAQ. Parent has established and maintains disclosure controls and procedures and internal control over financial reporting (as such terms are defined in paragraphs (e) and (f), respectively, of Rule 13a-15 under the Exchange Act) as required by Rule 13a-15 under the Exchange Act. Parent’s disclosure controls and procedures are reasonably designed to ensure that all material information required to be disclosed by Parent in the reports that it files or furnishes under the Exchange Act is recorded, processed, summarized and reported within the time periods specified in the rules and forms of the SEC, and that all such material information is accumulated and communicated to the management of Parent as appropriate to allow timely decisions regarding required disclosure and to make the certifications required pursuant to Sections 302 and 906 of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act. The management of Parent has completed its assessment of the effectiveness of Parent’s internal control over financial reporting in compliance with the requirements of Section 404 of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act for the year ended December 31, 2006, and such assessment concluded that such controls were effective to provide reasonable assurance regarding the reliability of Parent’s financial reporting and the preparation of Parent’s financial statements for external purposes in accordance with GAAP. Parent has disclosed, based on its assessment of the effectiveness of Parent’s internal control over financial reporting in compliance with the requirements of Section 404 of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act for the year ended December 31, 2006, to Parent’s independent registered accounting firm and the audit committee of the Board of Directors of Parent (A) any significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect Parent’s ability to record, process, summarize and report financial information and (B) any fraud, whether or not material, of which there is Parent’s Knowledge that involves management or other employees who have a significant role in Parent’s internal control over financial reporting for the year ended December 31, 2006. Parent any has made available to the Company a summary of any such disclosures made by management to such accounting firm or audit committee for the year ended December 31, 2006. (c) The consolidated financial statements of Parent included in the Parent SEC Documents (the “Parent SEC Financial Statements”) (i) have been prepared in accordance with GAAP (except as may be otherwise indicated therein or in the notes thereto and except, in the case of unaudited consolidated quarterly statements, as permitted by Form 10-Q of the Exchange Act), applied on a consistent basis during the periods involved, (ii) complied in all material respects with published rules and regulations of the SEC with respect thereto, ~~and~~ have been prepared in accordance with generally accepted accounting principles (~~iii~~“GAAP”) fairly present in all material respects the consolidated financial position of Parent and its consolidated Parent Subsidiaries as of the respective dates thereof and the consolidated statements of income, cash flows and changes in stockholders’ equity for the respective periods then ended (~~subject~~except, in the case of unaudited ~~quarterly~~ statements, ~~to normal year-end audit adjustments~~ as permitted by the applicable rules and regulations of the SEC) applied on a consistent basis during the periods involved (except as may be indicated in the notes thereto) and fairly presented, in all material respects in accordance with the applicable requirements of GAAP and the ~~absence~~ applicable rules and regulations of ~~footnotes~~the SEC, the consolidated financial position of Cornerstone and its Subsidiaries, as the case may be, in each case, taken as a whole, as of the dates thereof and the consolidated results of operations and cash flows for the periods then ended (except, in the case of unaudited statements, as permitted by Form 10-Q under the Exchange Act)~~. (d) As of March 31~~. Except as set forth in Schedule 2.6 to the Cornerstone Disclosure Letter, ~~2007~~Cornerstone has no Subsidiaries which are not consolidated for accounting purposes. Except for liabilities and obligations set forth in the Cornerstone SEC Documents or in Schedule 2.6 to the Cornerstone Disclosure Letter, neither ~~Parent~~ Cornerstone nor any ~~of the Parent Subsidiaries had~~ Cornerstone Subsidiary has any liabilities or obligations ~~that would have been~~ of any nature (whether accrued, absolute, contingent or otherwise) required by GAAP to be ~~reflected in the~~ set forth on a consolidated balance sheet of ~~Parent and the Parent Subsidiaries as of such date, except (i) for such liabilities and obligations reflected, reserved against~~ Cornerstone or ~~otherwise disclosed~~ in the ~~consolidated balance sheet of Parent~~ notes thereto and the Parent Subsidiaries as of such date (including the notes thereto) that is included in the Parent SEC Financial Statements and (ii) for such liabilities and obligations as would not be reasonably expected to havewhich, individually or in the aggregate, would reasonably be expected to have a ~~Parent~~ Cornerstone Material Adverse Effect (it is understood and agreed that the representations and warranties contained in this Section 5.5(d): (x) do not apply to matters described in any of Section 5.4, the other provisions of this Section 5.5, and Sections 5.7, 5.8, 5.9, 5.10, 5.11 and 5.17 (which are addressed exclusively in those Sections) and (y) shall not be deemed breached if such breach relates to a matter which is covered by a representation or warranty of Parent and Merger Sub contained in this Article V (other than this Section 5.5(d)) that contains a “Parent’s Knowledge” qualification)Effect. (e) Since December 31, 2006 to the date of this Agreement, (i) neither Parent nor any Parent Subsidiary nor, to Parent’s Knowledge, any director, officer, auditor, accountant or representative of Parent or any of the Parent Subsidiaries has received any written complaint, allegation, assertion or claim that Parent or any of the Parent Subsidiaries has engaged in improper or illegal accounting or auditing practices or maintains improper or inadequate internal accounting controls relating to Parent and the Parent Subsidiaries, taken as a whole, (ii) no attorney representing Parent or any Parent Subsidiary has made a report to Parent’s chief legal officer, chief executive officer or Board of Directors (or any committee thereof) pursuant to the SEC’s Standards of Professional Conduct for Attorneys (17 CFR Part 205), and (iii) Parent has disclosed to its outside auditors any fraud, whether or not material, of which there is Parent’s Knowledge that involves management or other employees who have a significant role in Parent’s internal control over financial reporting.

Appears in 1 contract

Sources: Merger Agreement (Cornerstone Realty Income Trust Inc)

SEC Documents; Financial Statements; Undisclosed Liabilities. (a) ~~Parent~~ Except as set forth in Section 3.5(a) of the Company Disclosure Schedule, the Company has filed all required reports, schedules, forms and ~~registration~~ registration, proxy and other statements with the ~~SEC required to be filed by it pursuant to~~ SEC, including without limitation the ~~Securities Act and~~ Company's Annual Report on Form 10-KSB for the ~~Securities Act Rules~~year end December 31, ~~or the Exchange Act and the Exchange Act Rules, in each such case since January 1, 2005~~ 2004 (collectively, and in each case including all ~~annexes~~ exhibits and schedules thereto and documents incorporated by reference therein, the ~~“Parent~~ "SEC Documents”"). As of their respective effective dates (~~or if subsequently amended or superseded by a filing prior~~ in the case of SEC Documents that are registration statements filed pursuant to the ~~date~~ Securities Act) and as of ~~this Agreement, on~~ their respective SEC filing dates (in the ~~date~~ case of ~~such filing~~all other SEC Documents), the ~~Parent~~ SEC Documents complied ~~as to form~~ in all material respects with the requirements of the Exchange Act and the Securities ~~Act or the Exchange~~ Act, as the case may be, and the rules and regulations of the SEC promulgated ~~thereunder~~ thereunder, applicable to such ~~Parent~~ SEC Documents, and none of the ~~Parent~~ SEC Documents as of such respective dates contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading~~. To Parent’s Knowledge, as of the date hereof, none of the Parent SEC Documents is the subject of ongoing SEC review~~. (b) Parent is in compliance with, and has complied, in all material respects with (i) the applicable provisions of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002 and the related rules and regulations promulgated thereunder, and (ii) the applicable listing and corporate governance rules and regulations of NASDAQ. Parent has established and maintains disclosure controls and procedures and internal control over financial reporting (as such terms are defined in paragraphs (e) and (f), respectively, of Rule 13a-15 under the Exchange Act) as required by Rule 13a-15 under the Exchange Act. Parent’s disclosure controls and procedures are reasonably designed to ensure that all material information required to be disclosed by Parent in the reports that it files or furnishes under the Exchange Act is recorded, processed, summarized and reported within the time periods specified in the rules and forms of the SEC, and that all such material information is accumulated and communicated to the management of Parent as appropriate to allow timely decisions regarding required disclosure and to make the certifications required pursuant to Sections 302 and 906 of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act. The management of Parent has completed its assessment of the effectiveness of Parent’s internal control over financial reporting in compliance with the requirements of Section 404 of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act for the year ended December 31, 2006, and such assessment concluded that such controls were effective to provide reasonable assurance regarding the reliability of Parent’s financial reporting and the preparation of Parent’s financial statements for external purposes in accordance with GAAP. Parent has disclosed, based on its assessment of the effectiveness of Parent’s internal control over financial reporting in compliance with the requirements of Section 404 of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act for the year ended December 31, 2006, to Parent’s independent registered accounting firm and the audit committee of the Board of Directors of Parent (A) any significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect Parent’s ability to record, process, summarize and report financial information and (B) any fraud, whether or not material, of which there is Parent’s Knowledge that involves management or other employees who have a significant role in Parent’s internal control over financial reporting for the year ended December 31, 2006. Parent any has made available to the Company a summary of any such disclosures made by management to such accounting firm or audit committee for the year ended December 31, 2006. (c) The consolidated financial statements of ~~Parent~~ the Company included in the ~~Parent~~ SEC Documents and the consolidated financial statements of the Company as of and for the period ended February 28, 2005 (the ~~“Parent SEC~~ "Interim Financial Statements”") (ia copy of which Interim Financial Statements are attached to Section 3.5(b) of the Company Disclosure Schedule) have been prepared in accordance with GAAP ~~(except as may be otherwise indicated therein or in the notes thereto~~ and ~~except, in the case of unaudited consolidated quarterly statements, as permitted by Form 10-Q of the Exchange Act),~~ applicable SEC accounting rules applied on a consistent basis ~~during~~ throughout the periods ~~involved, (ii) complied in all material respects with published rules~~ involved and ~~regulations of the SEC with respect thereto, and (iii)~~ fairly present in all material respects the consolidated financial position of ~~Parent~~ the Company and its consolidated ~~Parent~~ Subsidiaries as of the ~~respective~~ dates thereof and the consolidated ~~statements~~ results of ~~income,~~ their operations and cash flows ~~and changes in stockholders’ equity~~ for the ~~respective~~ periods then ended (subject, in the case of unaudited ~~quarterly~~ financial statements, to normal year-end audit ~~adjustments and the absence of footnotes~~adjustments). (dc) ~~As of March 31, 2007, neither Parent~~ Neither the Company nor any of ~~the Parent~~ its Subsidiaries ~~had~~ has any liabilities of any nature, whether accrued, absolute, contingent, direct, indirect or ~~obligations that~~ otherwise, which would ~~have been~~ be required ~~by GAAP~~ to be reflected ~~in the~~ or reserved against on a consolidated balance sheet of ~~Parent~~ the Company prepared in accordance with GAAP or the notes thereto, except liabilities (i) reflected or reserved against on the audited balance sheet of the Company and ~~the Parent~~ its Subsidiaries as of ~~such date~~December 31, ~~except~~ 2004 (ithe "Balance Sheet Date") ~~for such liabilities and obligations reflected, reserved against or otherwise disclosed in the consolidated balance sheet of Parent and the Parent Subsidiaries as of such date~~ (including the notes thereto) ~~that is~~ (the "Balance Sheet") included in the ~~Parent SEC~~ Company's Annual Report on Form 10-KSB for the year then ended, or (ii) incurred after the Balance Sheet Date in the ordinary course of business, consistent with past practice, or (iii) liabilities reflected on the Company Disclosure Schedule. The reserves, if any reflected on the Balance Sheet and the Interim Financial Statements are adequate, appropriate and reasonable for their purposes, including without limitation, litigation reserves and product warranty reserves, if any. (d) The accounts receivable shown on the Interim Financial Statements arose from bona fide transactions in the ordinary course of business. The accounts receivable of the Company and its Subsidiaries arising after the date of the Interim Financial Statements and ~~(ii) for such liabilities and obligations as would not be reasonably expected~~ prior to ~~have~~the Closing Date arose, ~~individually~~ or will arise, from bona fide transactions in the ~~aggregate, a Parent Material Adverse Effect (it is understood and agreed that~~ ordinary course of business. Except as reserved on the ~~representations and warranties~~ balance sheets contained in ~~this Section 5.5(d): (x) do not apply~~ the Interim Financial Statements, none of such accounts receivable is subject to ~~matters described in~~ any claim of ~~Section 5.4, the other provisions of this Section 5.5~~offset or recoupment or counterclaim, and ~~Sections 5.7, 5.8, 5.9, 5.10, 5.11 and 5.17 (which are addressed exclusively in those Sections) and (y) shall not~~ the Company has no Knowledge of any specific facts that would be ~~deemed breached if~~ likely to give rise to any such ~~breach relates to a matter which is covered by a representation or warranty of Parent and Merger Sub~~ claim. Except as reserved on the balance sheets contained in ~~this Article V (other than this Section 5.5(d)) that contains a “Parent’s Knowledge” qualification). (e) Since December 31~~the Interim Financial Statements, ~~2006 to~~ no amount of such accounts receivable is contingent upon the ~~date of this Agreement, (i) neither Parent nor any Parent Subsidiary nor, to Parent’s Knowledge, any director, officer, auditor, accountant or representative of Parent~~ performance by the Company or any of its Subsidiaries of any obligation and no agreement for deduction or discount or any type of credit has been made with respect to any such accounts receivable. Except as reserved on the ~~Parent Subsidiaries has received any written complaint~~balance sheet included in the Interim Financial Statements, ~~allegation~~to the Knowledge of the Company, ~~assertion or claim that Parent~~ no account debtor of the Company or any of ~~the Parent~~ its Subsidiaries has ~~engaged in improper~~ proposed any discount or ~~illegal accounting or auditing practices or maintains improper or inadequate internal accounting controls relating~~ reduction with respect to Parent and the Parent Subsidiaries, taken as a whole, (ii) no attorney representing Parent or any Parent Subsidiary has made a report to Parent’s chief legal officer, chief executive officer or Board of Directors (or any committee thereof) pursuant to the SEC’s Standards of Professional Conduct for Attorneys (17 CFR Part 205), and (iii) Parent has disclosed to its outside auditors any fraud, whether or not material, of which there is Parent’s Knowledge that involves management or other employees who have a significant role in Parent’s internal control over financial reportingsuch account debtor's accounts receivable.

Appears in 1 contract

Sources: Merger Agreement (Technology Flavors & Fragrances Inc)

SEC Documents; Financial Statements; Undisclosed Liabilities. (a) ~~Parent~~ The Company has timely filed ~~all reports, schedules, forms and registration statements~~ with the SEC required to be filed by it pursuant to the Securities Act and the Securities Act Rules, or the Exchange Act and the Exchange Act Rules, in each such case since January 1, 2005 (collectively, and in each case including all ~~annexes and schedules thereto and documents incorporated by reference therein, the “Parent~~ Company SEC Documents”). As of ~~their~~ its respective ~~dates (~~date, each Company SEC Document, including, without limitation, any financial statements or ~~if subsequently amended or superseded by a filing prior to the date of this Agreement~~schedules included therein, ~~on the date of such filing), the Parent SEC Documents~~ complied ~~as to form~~ in all material respects with the requirements of the Securities Act ~~or the~~ and Exchange Act, as the case may be, and the rules and regulations of the SEC promulgated thereunder applicable to such ~~Parent~~ Company SEC Documents, and ~~none of the Parent SEC Documents as of such dates contained~~ did not contain any untrue statement of a material fact or ~~omitted~~ omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading. ~~To Parent’s Knowledge, as of~~ Except to the extent that information contained in any Company SEC Document has been revised or superseded by a later filed Company SEC Document (which later filed Company SEC Document has been filed prior to the date hereof), none of the ~~Parent~~ Company SEC Documents is contains any untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary in order to make the ~~subject~~ statements therein, in light of ~~ongoing SEC review~~the circumstances under which they were made, not misleading. (b) ~~Parent is~~ Except as set forth in ~~compliance with~~SECTION 4.06(b) of the Company Disclosure Letter, ~~and has complied,~~ the Financial Statements comply as to form in all material respects with ~~(i) the~~ applicable ~~provisions of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002~~ accounting requirements and the ~~related rules and regulations promulgated thereunder, and (ii) the applicable listing and corporate governance~~ published rules and regulations of ~~NASDAQ. Parent has established and maintains disclosure controls and procedures and internal control over financial reporting (as such terms are defined in paragraphs (e) and (f)~~the SEC with respect thereto, respectively, of Rule 13a-15 under the Exchange Act) as required by Rule 13a-15 under the Exchange Act. Parent’s disclosure controls and procedures are reasonably designed to ensure that all material information required to be disclosed by Parent in the reports that it files or furnishes under the Exchange Act is recorded, processed, summarized and reported within the time periods specified in the rules and forms of the SEC, and that all such material information is accumulated and communicated to the management of Parent as appropriate to allow timely decisions regarding required disclosure and to make the certifications required pursuant to Sections 302 and 906 of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act. The management of Parent has completed its assessment of the effectiveness of Parent’s internal control over financial reporting in compliance with the requirements of Section 404 of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act for the year ended December 31, 2006, and such assessment concluded that such controls were effective to provide reasonable assurance regarding the reliability of Parent’s financial reporting and the preparation of Parent’s financial statements for external purposes in accordance with GAAP. Parent has disclosed, based on its assessment of the effectiveness of Parent’s internal control over financial reporting in compliance with the requirements of Section 404 of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act for the year ended December 31, 2006, to Parent’s independent registered accounting firm and the audit committee of the Board of Directors of Parent (A) any significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect Parent’s ability to record, process, summarize and report financial information and (B) any fraud, whether or not material, of which there is Parent’s Knowledge that involves management or other employees who have a significant role in Parent’s internal control over financial reporting for the year ended December 31, 2006. Parent any has made available to the Company a summary of any such disclosures made by management to such accounting firm or audit committee for the year ended December 31, 2006. (c) The consolidated financial statements of Parent included in the Parent SEC Documents (the “Parent SEC Financial Statements”) (i) have been prepared in accordance with GAAP (~~except as may be otherwise indicated therein or in the notes thereto and~~ except, in the case of unaudited ~~consolidated quarterly~~ statements, as permitted by Form 10-Q of the ~~Exchange Act),~~ SEC) applied on a consistent basis during the periods ~~involved,~~ involved (iiexcept as may be indicated in the notes thereto) ~~complied in all material respects with published rules~~ and ~~regulations of the SEC with respect thereto, and (iii)~~ fairly present in all material respects the consolidated financial position of ~~Parent~~ the Company and its consolidated ~~Parent~~ Subsidiaries as of the ~~respective~~ dates thereof and the consolidated ~~statements~~ results of ~~income,~~ their operations and cash flows ~~and changes in stockholders’ equity~~ for the ~~respective~~ periods then ended (subject, in the case of unaudited ~~quarterly~~ statements, to normal year-end audit ~~adjustments and the absence of footnotes~~adjustments). (dc) ~~As of March 31~~The Company and the Company Subsidiaries have no material liabilities, ~~2007~~whether accrued, ~~neither Parent nor any of the Parent Subsidiaries had any liabilities~~ absolute, contingent or ~~obligations that would have been~~ otherwise, and whether or not required ~~by GAAP~~ to be ~~reflected in the consolidated~~ disclosed on a balance sheet ~~of Parent and the Parent Subsidiaries as of such date~~prepared in accordance with GAAP, except liabilities (i) ~~for such liabilities and obligations reflected,~~ stated or reserved against ~~or otherwise disclosed~~ in the ~~consolidated balance sheet~~ Financial Statements of ~~Parent and~~ the ~~Parent Subsidiaries as of such date (including the notes thereto) that is~~ Company included in the ~~Parent~~ Filed Company SEC ~~Financial Statements and~~ Documents or disclosed in SECTION 4.06(c) of the Company Disclosure Letter or (ii) ~~for such liabilities~~ incurred in (A) the ordinary and ~~obligations as would not be reasonably expected~~ usual course of business consistent with past practice since June 30, 2001 and disclosed to ~~have, individually or in the aggregate, a~~ Parent Material Adverse Effect (it is understood and agreed that the representations and warranties contained in this Section 5.5(d): (x) do not apply to matters described in any of Section 5.4, the other provisions of this Section 5.5, and Sections 5.7, 5.8, 5.9, 5.10, 5.11 and 5.17 (which are addressed exclusively in those Sections) and (y) shall not be deemed breached if such breach relates to a matter which is covered by a representation or warranty of Parent and Merger Sub contained in this Article V (other than this Section 5.5(d)) that contains a “Parent’s Knowledge” qualification). (e) Since December 31, 2006 prior to the date ~~of this Agreement,~~ hereof or (iB) ~~neither Parent nor any Parent Subsidiary nor, to Parent’s Knowledge, any director, officer, auditor, accountant or representative of Parent or any of~~ in connection with the Parent Subsidiaries has received any written complaint, allegation, assertion or claim that Parent or any of the Parent Subsidiaries has engaged in improper or illegal accounting or auditing practices or maintains improper or inadequate internal accounting controls relating to Parent and the Parent Subsidiaries, taken as a whole, (ii) no attorney representing Parent or any Parent Subsidiary has made a report to Parent’s chief legal officer, chief executive officer or Board of Directors (or any committee thereof) pursuant to the SEC’s Standards of Professional Conduct for Attorneys (17 CFR Part 205), and (iii) Parent has disclosed to its outside auditors any fraud, whether or not material, of which there is Parent’s Knowledge that involves management or other employees who have a significant role in Parent’s internal control over financial reportingTransactions contemplated hereby.

Appears in 1 contract

Sources: Merger Agreement (Vysis Inc)

SEC Documents; Financial Statements; Undisclosed Liabilities. (a) ~~Parent~~ The Company has timely filed or furnished all reports, schedules, ~~forms~~ forms, statements, registration statements, prospectuses and ~~registration statements with the SEC~~ other documents required to be filed or furnished by ~~it pursuant to~~ the Company with the SEC under the Securities Act ~~and the Securities Act Rules,~~ or the Exchange Act ~~and the Exchange Act Rules, in each such case~~ since January 1, ~~2005~~ 2018 (~~collectively, and in each case including all annexes and schedules thereto and documents incorporated by reference therein,~~ the ~~“Parent~~ "Company SEC Documents”"). None of the Subsidiaries of the Company is required to make any filings with the SEC. (b) As of ~~their~~ its respective ~~dates~~ filing date (or or, if ~~subsequently~~ amended or superseded ~~by a filing~~ prior to the date of this Agreement, on the date of such filing~~), the Parent~~ ) each Company SEC ~~Documents~~ Document complied as to form in all material respects with the requirements of the ~~Securities~~ Exchange Act or the ~~Exchange~~ Securities Act, as the case may be, and the rules and regulations of the SEC promulgated thereunder applicable to such ~~Parent~~ Company SEC ~~Documents,~~ Document and ~~none of the Parent SEC Documents as of such dates contained~~ did not contain any untrue statement of a material fact or ~~omitted~~ omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading. ~~To Parent’s Knowledge, as~~ As of the date ~~hereof~~of this Agreement, there are no outstanding or unresolved comments received from the SEC or its staff with respect to the Company SEC Documents, and to the Knowledge of the Company, none of the ~~Parent~~ Company SEC Documents is the subject of ongoing SEC review, outstanding SEC comment or outstanding SEC investigation or other governmental investigation regarding the accounting practices of the Company. (bc) ~~Parent is~~ The consolidated financial statements of the Company included in ~~compliance with~~the Company SEC Documents (including, ~~and has complied~~in each case, any notes or schedules thereto) (the "Company SEC Financial Statements") (i) complied as to form in all material respects with ~~(i)~~ the applicable ~~provisions of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002~~ accounting requirements and ~~the related rules and regulations promulgated thereunder, and (ii) the applicable listing and corporate governance~~ published rules and regulations of ~~NASDAQ. Parent has established~~ the SEC with respect thereto, (ii) fairly present, in all material respects, the financial condition and ~~maintains disclosure controls~~ the results of operations, cash flows and ~~procedures~~ changes in stockholders' equity of the Company and ~~internal control over financial reporting~~ its Subsidiaries (on a consolidated basis) as ~~such terms are defined~~ of the respective dates of and for the periods referred to in ~~paragraphs (e)~~ the Company SEC Financial Statements, and (fiii) were prepared in accordance with GAAP as applied by the Company (except as may be indicated in the notes thereto or, in the case of unaudited statements, as permitted by Form 10-Q of the SEC), ~~respectively~~subject, in the case of interim Company SEC Financial Statements, to normal year-end adjustments and the absence of notes. (d) The Company has timely filed all certifications and statements required by (i) Rule ~~13a-15~~ 13a-14 or Rule 15d-14 under the Exchange Act; or (ii) as required by Rule 13a-15 under the Exchange Act. Parent’s disclosure controls and procedures are reasonably designed to ensure that all material information required to be disclosed by Parent in the reports that it files or furnishes under the Exchange Act is recorded, processed, summarized and reported within the time periods specified in the rules and forms of the SEC, and that all such material information is accumulated and communicated to the management of Parent as appropriate to allow timely decisions regarding required disclosure and to make the certifications required pursuant to Sections 302 and 18 U.S.C. Section 1350 (Section 906 of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act) with respect to all applicable Company SEC Documents. The ~~management of Parent has completed its assessment of~~ Company maintains disclosure controls and procedures required by Rule 13a-15 or Rule 15d-15 under the effectiveness of Parent’s internal control over financial reporting in compliance with the requirements of Section 404 of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act for the year ended December 31Exchange Act, ~~2006, and such assessment concluded that~~ which such controls ~~were effective~~ and procedures are designed to ~~provide reasonable assurance regarding~~ ensure that all material information concerning the ~~reliability of Parent’s financial reporting~~ Company and its Subsidiaries is made known on a timely basis to the individuals responsible for the preparation of ~~Parent’s financial statements for external purposes in accordance with GAAP~~the Company SEC Documents. ~~Parent~~ The Company has disclosed, based on its ~~assessment~~ most recent evaluation of the ~~effectiveness of Parent’s~~ Company's internal control over financial reporting ~~in compliance with~~ prior to the ~~requirements~~ date of ~~Section 404 of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act for the year ended December 31, 2006~~this Agreement, to ~~Parent’s independent registered accounting firm~~ the Company's auditors and the audit committee of the Company Board ~~of Directors of Parent~~ (Ai) any significant deficiencies and material weaknesses in the design or operation of its internal ~~control~~ controls over financial reporting ~~which~~ (as defined in Rule 13a-15(f) under the Exchange Act) that occurred since January 1, 2018 and are reasonably likely to adversely affect ~~Parent’s~~ the Company's ability to record, process, summarize and report financial information and (Bii) any ~~fraud,~~ fraud whether or not material, ~~of which there is Parent’s Knowledge~~ that involves management or other employees who have a significant role in ~~Parent’s~~ the Company's internal control over financial ~~reporting for the year ended December 31, 2006~~reporting. ~~Parent any~~ The Company has made available to ~~the Company a summary of any~~ Parent all such disclosures made by management to ~~such accounting firm or~~ the Company's auditors and audit committee ~~for the year ended December 31~~since January 1, ~~2006~~2018. (ce) The consolidated financial statements of Parent included in the Parent SEC Documents (the “Parent SEC Financial Statements”) (i) have been prepared in accordance with GAAP (except as may be otherwise indicated therein or in the notes thereto and except, in the case of unaudited consolidated quarterly statements, as permitted by Form 10-Q of the Exchange Act), applied on a consistent basis during the periods involved, (ii) complied in all material respects with published rules and regulations of the SEC with respect thereto, and (iii) fairly present in all material respects the consolidated financial position of Parent Company and its ~~consolidated Parent~~ Subsidiaries as of the respective dates thereof and the consolidated statements of income, cash flows and changes in stockholders’ equity for the respective periods then ended (subject, in the case of unaudited quarterly statements, to normal year-end audit adjustments and the absence of footnotes). (d) As of March 31, 2007, neither Parent nor any of the Parent Subsidiaries had do not have any liabilities or obligations ~~that would have been~~ of any nature (whether absolute or contingent, asserted or unasserted, known or unknown, primary or secondary, direct or indirect, and whether or not accrued) required by GAAP to be reflected ~~in the~~ or reserved on a consolidated balance sheet of ~~Parent and~~ the ~~Parent Subsidiaries as of such date,~~ Company (or the notes thereto) except (i) ~~for such liabilities and obligations reflected~~as disclosed, reflected or reserved against ~~or otherwise disclosed~~ in the Company's consolidated audited balance sheet ~~of Parent and the Parent Subsidiaries~~ as of ~~such date (including~~ December 29, 2018 or the notes ~~thereto) that is~~ thereto included in the ~~Parent SEC Financial Statements and~~ Company's Annual Report on Form 10-K filed prior to the date hereof for the fiscal year ended December 29, 2018, (ii) for ~~such~~ liabilities and obligations ~~as would not be reasonably expected to have~~incurred in the ordinary course of business since December 29, 2018, (iii) for liabilities and obligations arising out of or in connection with this Agreement, the Offer, the Merger or the Transactions and (iv) for liabilities and obligations that, individually or in the aggregate, have not had, or would not reasonably be expected to have, a ~~Parent~~ Company Material Adverse Effect (it is understood and agreed that the representations and warranties contained in this Section 5.5(d): (x) do not apply to matters described in any of Section 5.4, the other provisions of this Section 5.5, and Sections 5.7, 5.8, 5.9, 5.10, 5.11 and 5.17 (which are addressed exclusively in those Sections) and (y) shall not be deemed breached if such breach relates to a matter which is covered by a representation or warranty of Parent and Merger Sub contained in this Article V (other than this Section 5.5(d)) that contains a “Parent’s Knowledge” qualification)Effect. (e) Since December 31, 2006 to the date of this Agreement, (i) neither Parent nor any Parent Subsidiary nor, to Parent’s Knowledge, any director, officer, auditor, accountant or representative of Parent or any of the Parent Subsidiaries has received any written complaint, allegation, assertion or claim that Parent or any of the Parent Subsidiaries has engaged in improper or illegal accounting or auditing practices or maintains improper or inadequate internal accounting controls relating to Parent and the Parent Subsidiaries, taken as a whole, (ii) no attorney representing Parent or any Parent Subsidiary has made a report to Parent’s chief legal officer, chief executive officer or Board of Directors (or any committee thereof) pursuant to the SEC’s Standards of Professional Conduct for Attorneys (17 CFR Part 205), and (iii) Parent has disclosed to its outside auditors any fraud, whether or not material, of which there is Parent’s Knowledge that involves management or other employees who have a significant role in Parent’s internal control over financial reporting.

Appears in 1 contract

Sources: Merger Agreement (Iac/Interactivecorp)

SEC Documents; Financial Statements; Undisclosed Liabilities. (a) Parent has filed or furnished, as applicable, all reports, schedules, ~~forms~~ forms, certifications, statements and ~~registration statements~~ other documents on a timely basis with the SEC required to be filed or furnished, as applicable, by ~~it pursuant to~~ Parent since and including January 1, 2013 through the ~~Securities Act and the Securities Act Rules, or~~ date of this Agreement under the Exchange Act ~~and~~ or Securities Act (such documents, together with any documents filed during such period by Parent with the ~~Exchange Act Rules, in each such case since January 1, 2005 (collectively, and in each case including all annexes and schedules thereto and documents incorporated by reference therein~~SEC on a voluntary basis on Current Reports on Form 8-K, the “Parent SEC Documents”). . (b) As of ~~their~~ its respective ~~dates~~ date, each Parent SEC Document complied (or ~~if subsequently amended or superseded by a filing prior~~ with respect to Company SEC Documents filed after the date ~~of this Agreement~~hereof, ~~on the date of such filing), the Parent SEC Documents complied~~ will comply) as to form in all material respects with the requirements of the Exchange Act and the Securities Act ~~or the Exchange Act, as the case may be,~~ and the rules and regulations of the SEC promulgated thereunder applicable to such Parent SEC ~~Documents~~Document, ~~and~~ each as in effect on the date so filed. As of their respective dates (or, if amended prior to the date hereof, as of the date of such amendment), except to the extent revised or superseded by a later filed Parent SEC Document, none of the Parent SEC Documents ~~as of such dates~~ contained (or with respect to Company SEC Documents filed after the date hereof, will contain) any untrue statement of a material fact or omitted to state a any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading~~. To Parent’s Knowledge, as~~ . (c) Each of the ~~date hereof, none~~ financial statements (including the related notes) of Parent included in the Parent SEC ~~Documents is~~ Documents, complied as to form at the ~~subject of ongoing SEC review. (b) Parent is in compliance with, and has complied,~~ time it was filed in all material respects with the applicable accounting requirements and the published rules and regulations of the SEC with respect thereto in effect at the time of filing, was prepared in accordance with GAAP in all material respects (except, in the case of unaudited financial statements, as permitted by the rules and regulations of the SEC) applied on a consistent basis during the periods involved (except as may be indicated in the notes thereto) and fairly presented in all material respects the consolidated financial position of Parent and its consolidated 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 unaudited financial statements, to normal year-end audit adjustments). (d) None of Parent or any Parent Subsidiary has any liabilities or obligations of any nature (whether accrued, absolute, contingent or otherwise) except liabilities or obligations (i) disclosed and provided for in the most recent financial statements included in the Filed Parent SEC Documents or of a nature not required by GAAP to be reflected thereon, (ii) related to the future performance of any Contract, (iii) incurred or arising in the ordinary course of business consistent with past practice since the date of the most recent financial statements included in the Filed Parent SEC Documents, (iv) incurred under this Agreement or in connection with the Transactions, (v) disclosed on Section 4.05(d) of the Parent Disclosure Letter, (vi) as would not reasonably be likely to, individually or in the aggregate, have a Parent Material Adverse Effect or (vii) that will be discharged or paid in full prior to the Closing Date. (e) Section 4.05(e) of the Parent Disclosure Letter sets forth with respect to all Indebtedness of Parent and the Parent Subsidiaries for borrowed money outstanding on the date hereof: (i) the ~~applicable provisions~~ amount of ~~the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002 and the related rules and regulations promulgated thereunder~~such indebtedness, ~~and~~ (ii) the ~~applicable listing~~ lender of such indebtedness, (iii) the interest rate of such indebtedness, (iv) the maturity date of such indebtedness and ~~corporate governance rules and regulations of NASDAQ.~~ (v) the collateral securing such indebtedness. (f) Since January 1, 2013, Parent has established and ~~maintains disclosure controls and procedures and~~ maintained a system of internal control over financial reporting (as ~~such terms are~~ defined in ~~paragraphs (e~~Rules 13a-15(f) and 15d-15(f) under the Exchange Act). Such internal controls provide reasonable assurance (f)i) regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with GAAP, ~~respectively~~(ii) that transactions are executed in accordance with management’s general or specific authorizations, (iii) that transactions are recorded as necessary to permit preparation of ~~Rule 13a-15~~ financial statements and to maintain asset accountability, (iv) that access to assets is permitted only in accordance with management’s general or specific authorization and (v) that the recorded accountability for assets is compared with the existing assets at reasonable intervals and appropriate action is taken with respect to any differences. Since January 1, 2013, (x) Parent has designed and maintains disclosure controls and procedures (as defined in Rules 13a-15(e) and 15d-15(e) under the Exchange Act) ~~as required by Rule 13a-15 under the Exchange Act. Parent’s disclosure controls and procedures are reasonably designed~~ to ensure that ~~all~~ material information required to be disclosed by Parent in the reports that it files or ~~furnishes~~ submits under the Exchange Act is recorded, processed, summarized and reported within the time periods specified in the SEC’s rules and forms ~~of the SEC,~~ and ~~that all such material information~~ is accumulated and communicated to ~~the~~ Parent’s management ~~of Parent~~ as appropriate to allow timely decisions regarding required ~~disclosure and to make the certifications required pursuant to Sections 302 and 906~~ disclosure, (y) except as set forth on Section 4.05(f) of the ~~▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act. The management~~ Parent Disclosure Letter, to the Knowledge of Parent, such disclosure controls and procedures are effective in timely alerting the principal executive officer and principal financial officer of Parent ~~has completed its assessment of the effectiveness of~~ to material information required to be included in Parent’s ~~internal control over financial reporting in compliance with~~ periodic reports required under the ~~requirements of Section 404 of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act for the year ended December 31, 2006~~Exchange Act, and ~~such assessment concluded that such controls were effective to provide reasonable assurance regarding the reliability of~~ (z) Parent’s principal executive officer and its principal financial reporting and the preparation of Parent’s financial statements for external purposes in accordance with GAAP. Parent has disclosed, based on its assessment of the effectiveness of Parent’s internal control over financial reporting in compliance with the requirements of Section 404 of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act for the year ended December 31, 2006, officer have disclosed to Parent’s independent registered public accounting firm and the audit committee of the Parent Board (and made summaries of ~~Directors of Parent~~ such disclosures available to the Company) (A) ~~any~~ all known significant deficiencies and material weaknesses in the design or operation of internal ~~control~~ controls over financial reporting ~~which~~ that are reasonably likely to adversely affect in any material respect Parent’s ability to record, process, summarize and report financial ~~information~~ information, and (B) any known fraud, whether or not material, ~~of which there is Parent’s Knowledge~~ that involves management or other employees who have a significant role in Parent’s internal ~~control~~ controls over financial ~~reporting for the year ended December 31, 2006~~reporting. Parent any has made available to the Company a summary of any such disclosures made by management to such accounting firm or audit committee for the year ended December 31, 2006. (c) The consolidated financial statements of Parent included in the Parent SEC Documents (the “Parent SEC Financial Statements”) (i) have been prepared in accordance with GAAP (except as may be otherwise indicated therein or in the notes thereto and except, in the case of unaudited consolidated quarterly statements, as permitted by Form 10-Q of the Exchange Act), applied on a consistent basis during the periods involved, (ii) complied in all material respects with published rules and regulations of the SEC with respect thereto, and (iii) fairly present in all material respects the consolidated financial position of Parent and its consolidated Parent Subsidiaries as of the respective dates thereof and the consolidated statements of income, cash flows and changes in stockholders’ equity for the respective periods then ended (subject, in the case of unaudited quarterly statements, to normal year-end audit adjustments and the absence of footnotes). (d) As of March 31, 2007, neither Parent nor any of the Parent Subsidiaries had any liabilities or obligations that would have been required by GAAP to be reflected in the consolidated balance sheet of Parent and the Parent Subsidiaries as of such date, except (i) for such liabilities and obligations reflected, reserved against or otherwise disclosed in the consolidated balance sheet of Parent and the Parent Subsidiaries as of such date (including the notes thereto) that is included in the Parent SEC Financial Statements and (ii) for such liabilities and obligations as would not be reasonably expected to have, individually or in the aggregate, a Parent Material Adverse Effect (it is understood and agreed that the representations and warranties contained in this Section 5.5(d): (x) do not apply to matters described in any of Section 5.4, the other provisions of this Section 5.5, and Sections 5.7, 5.8, 5.9, 5.10, 5.11 and 5.17 (which are addressed exclusively in those Sections) and (y) shall not be deemed breached if such breach relates to a matter which is covered by a representation or warranty of Parent and Merger Sub contained in this Article V (other than this Section 5.5(d)) that contains a “Parent’s Knowledge” qualification). (e) Since December 31, 2006 to the date of this Agreement, ~~(i) neither Parent nor any Parent Subsidiary nor, to Parent’s Knowledge, any director, officer, auditor, accountant or representative~~ the principal executive officer and principal financial officer of Parent ~~or any~~ have made all certifications required by the S▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002 and the regulations of the ~~Parent Subsidiaries has received any written complaint~~SEC promulgated thereunder, allegation, assertion or claim that Parent or any of the Parent Subsidiaries has engaged in improper or illegal accounting or auditing practices or maintains improper or inadequate internal accounting controls relating to Parent and the ~~Parent Subsidiaries~~statements contained in all such certifications were, ~~taken~~ as ~~a whole~~of their respective dates made, (ii) no attorney representing Parent or any Parent Subsidiary has made a report to Parent’s chief legal officer, chief executive officer or Board of Directors (or any committee thereof) pursuant to the SEC’s Standards of Professional Conduct for Attorneys (17 CFR Part 205), complete and ~~(iii) Parent has disclosed to its outside auditors any fraud, whether or not material, of which there is Parent’s Knowledge that involves management or other employees who have a significant role~~ correct in ~~Parent’s internal control over financial reporting~~all material respects.

Appears in 1 contract

Sources: Merger Agreement (Trade Street Residential, Inc.)

SEC Documents; Financial Statements; Undisclosed Liabilities. (a) Parent has timely filed or furnished all reports, schedules, ~~forms~~ forms, statements, registration statements, prospectuses and ~~registration statements with the SEC~~ other documents required to be filed or furnished by ~~it pursuant to~~ Parent with the SEC under the Securities Act ~~and the Securities Act Rules,~~ or the Exchange Act ~~and the Exchange Act Rules, in each such case~~ since January 1, ~~2005~~ 2014 (~~collectively, and in each case including all annexes and schedules thereto and documents incorporated by reference therein,~~ the “Parent SEC Documents”). None of the Parent Subsidiaries is required to make any filings with the SEC. (b) As of ~~their~~ its respective ~~dates (or~~ filing date, and, if ~~subsequently amended or superseded by a filing~~ amended, as of the date of the last amendment prior to the date of this Agreement, ~~on the date of such filing), the~~ each Parent SEC ~~Documents~~ Document complied ~~as to form~~ in all material respects with the requirements of the Exchange Act, or the Securities Act or and the ~~Exchange~~ S▇▇▇▇▇▇▇-▇▇▇▇▇ Act, as the case may be, and the rules and regulations of the SEC promulgated thereunder applicable to such Parent SEC ~~Documents,~~ Document and ~~none of the Parent SEC Documents as of such dates contained~~ did not contain any untrue statement of a material fact or ~~omitted~~ omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading. Parent has made available to the Company true and complete copies of all material correspondence between the SEC, on the one hand, and Parent and any Parent Subsidiaries, on the other hand, occurring since January 1, 2014 and prior to the date hereof. As of the date hereof, there are no outstanding or unresolved comments in comment letters from the SEC staff with respect to any of the Parent SEC Documents. To the Knowledge of Parent~~’s Knowledge~~, as of the date hereof, none of the Parent SEC Documents is the subject of ongoing SEC review, outstanding SEC comment or outstanding SEC investigation. (bc) The consolidated financial statements of Parent is included in ~~compliance with~~the Parent SEC Documents (including, ~~and has complied~~in each case, any notes or schedules thereto) (the “Parent SEC Financial Statements”) fairly present, in all material ~~respects with~~ respects, the financial condition and the results of operations, cash flows and changes in stockholders’ equity of Parent and its Subsidiaries (ion a consolidated basis) ~~the applicable provisions~~ as of the ~~▇▇▇▇▇▇▇▇~~respective dates of and for the periods referred to in the Parent SEC Financial Statements, and were prepared in accordance with GAAP applied on a consistent basis during the periods involved (except as may be indicated in the notes thereto), subject, in the case of interim Parent SEC Financial Statements, to normal year-~~▇▇▇▇▇ Act of 2002~~ end adjustments and the ~~related rules and regulations promulgated thereunder, and~~ absence of notes. (iid) ~~the applicable listing and corporate governance rules and regulations of NASDAQ.~~ Parent has established and maintains disclosure controls and procedures and internal control over financial reporting (as such terms are defined in paragraphs (e) and (f), respectively, of Rule 13a-15 and paragraph (e) of Rule 15d-15 under the Exchange Act) as required by ~~Rule~~ Rules 13a-15 and 15d-15 under the Exchange Act. Parent’s disclosure controls and procedures are ~~reasonably~~ designed to ensure that all ~~material~~ information (both financial and non-financial) required to be disclosed by Parent in the reports that it files or furnishes under the Exchange Act is recorded, processed, summarized and reported within the time periods specified in the rules and forms of the SEC, and that all such ~~material~~ information is accumulated and communicated to ~~the~~ Parent’s management ~~of Parent~~ as appropriate to allow timely decisions regarding required disclosure and to make the certifications required pursuant to Sections 302 and 906 of the ▇S▇▇▇▇▇▇▇-▇▇▇▇▇ Act. ~~The~~ Parent’s management ~~of Parent~~ has completed ~~its~~ an assessment of the effectiveness of Parent’s ~~internal control over financial reporting~~ disclosure controls and procedures and, to the extent required by applicable Law, presented in ~~compliance with~~ any applicable Parent SEC Document that is a report on Form 10-K or Form 10-Q, or any amendment thereto, its conclusions about the ~~requirements of Section 404~~ effectiveness of the ~~▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act for~~ disclosure controls and procedures as of the ~~year ended December 31, 2006, and~~ end of the period covered by such ~~assessment concluded that~~ report or amendment based on such ~~controls were effective to provide reasonable assurance regarding the reliability of~~ evaluation. Based on Parent’s ~~financial reporting and the preparation of Parent~~management’s ~~financial statements for external purposes in accordance with GAAP. Parent has disclosed, based on its assessment of the effectiveness~~ most recently completed evaluation of Parent’s internal control over financial ~~reporting in compliance with the requirements of Section 404 of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act for the year ended December 31~~reporting, ~~2006, to Parent’s independent registered accounting firm and the audit committee of the Board of Directors of~~ (i) Parent ~~(A) any~~ had no significant deficiencies ~~and~~ or material weaknesses in the design or operation of its internal control over financial reporting ~~which are~~ that would reasonably ~~likely~~ be expected to adversely affect Parent’s ability to record, process, summarize and report financial information and (Bii) Parent does not have Knowledge of any fraud, whether or not material, of which there is Parent’s Knowledge that involves management or other employees who have a significant role in Parent’s internal control over financial reporting for the year ended December 31, 2006. Parent any has made available to the Company a summary of any such disclosures made by management to such accounting firm or audit committee for the year ended December 31, 2006. (c) The consolidated financial statements of Parent included in the Parent SEC Documents (the “Parent SEC Financial Statements”) (i) have been prepared in accordance with GAAP (except as may be otherwise indicated therein or in the notes thereto and except, in the case of unaudited consolidated quarterly statements, as permitted by Form 10-Q of the Exchange Act), applied on a consistent basis during the periods involved, (ii) complied in all material respects with published rules and regulations of the SEC with respect thereto, and (iii) fairly present in all material respects the consolidated financial position of Parent and its consolidated Parent Subsidiaries as of the respective dates thereof and the consolidated statements of income, cash flows and changes in stockholders’ equity for the respective periods then ended (subject, in the case of unaudited quarterly statements, to normal year-end audit adjustments and the absence of footnotes). (d) As of March 31, 2007, neither Parent nor any of the Parent Subsidiaries had any liabilities or obligations that would have been required by GAAP to be reflected in the consolidated balance sheet of Parent and the Parent Subsidiaries as of such date, except (i) for such liabilities and obligations reflected, reserved against or otherwise disclosed in the consolidated balance sheet of Parent and the Parent Subsidiaries as of such date (including the notes thereto) that is included in the Parent SEC Financial Statements and (ii) for such liabilities and obligations as would not be reasonably expected to have, individually or in the aggregate, a Parent Material Adverse Effect (it is understood and agreed that the representations and warranties contained in this Section 5.5(d): (x) do not apply to matters described in any of Section 5.4, the other provisions of this Section 5.5, and Sections 5.7, 5.8, 5.9, 5.10, 5.11 and 5.17 (which are addressed exclusively in those Sections) and (y) shall not be deemed breached if such breach relates to a matter which is covered by a representation or warranty of Parent and Merger Sub contained in this Article V (other than this Section 5.5(d)) that contains a “Parent’s Knowledge” qualification). (e) Since December 31, 2006 to the date of this Agreement, (i) neither Parent nor any Parent Subsidiary nor, to Parent’s Knowledge, any director, officer, auditor, accountant or representative of Parent or any of the Parent Subsidiaries has received any written complaint, allegation, assertion or claim that Parent or any of the Parent Subsidiaries has engaged in improper or illegal accounting or auditing practices or maintains improper or inadequate internal accounting controls relating to Parent and the Parent Subsidiaries, taken as a whole, (ii) no attorney representing Parent or any Parent Subsidiary has made a report to Parent’s chief legal officer, chief executive officer or Board of Directors (or any committee thereof) pursuant to the SEC’s Standards of Professional Conduct for Attorneys (17 CFR Part 205), and (iii) Parent has disclosed to its outside auditors any fraud, whether or not material, of which there is Parent’s Knowledge that involves management or other employees who have a significant role in Parent’s internal control over financial reporting. Since January 1, 2014, Parent’s principal executive officer and its principal financial officer have disclosed to Parent’s auditors and the audit committee of the Board of Directors of Parent (the “Parent Board”) (i) all significant deficiencies and material weaknesses in the design or operation of Parent’s internal control over financial reporting that would reasonably be expected to adversely affect Parent’s ability to record, process, summarize and report financial information and (ii) any fraud, whether or not material, that involves management or other employees who have a significant role in Parent’s internal control over financing reporting, and Parent has made available to Parent true and complete copies of any material written materials provided to Parent’s auditors or the audit committee of the Parent Board relating to each of the foregoing. Parent has not made any prohibited loans or “extensions of credit” (within the meaning of Section 402 of the S▇▇▇▇▇▇▇-▇▇▇▇▇ Act) to any executive officer (as defined in Rule 3b-7 under the Exchange Act) or director of Parent. (e) Parent and its Subsidiaries do not have any liabilities or obligations of any nature (whether absolute or contingent, asserted or unasserted, known or unknown, primary or secondary, direct or indirect, and whether or not accrued), required by GAAP to be reflected or reserved on a consolidated balance sheet of Parent (or the notes thereto) except (i) as reflected or reserved against in the most recent audited balance sheet included in the Parent SEC Financial Statements or the notes thereto, (ii) for liabilities and obligations incurred in the ordinary course of business since the date of the most recent audited balance sheet included in the Parent SEC Financial Statements, (iii) for liabilities and obligations arising out of or in connection with this Agreement, the Merger or the Transactions and (iv) for liabilities and obligations that have not had, and would not reasonably be expected to have, a Parent Material Adverse Effect.

Appears in 1 contract

Sources: Merger Agreement (Genvec Inc)

SEC Documents; Financial Statements; Undisclosed Liabilities. ~~(a) Parent has~~ ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇ Partnership have filed all reports, schedules, ~~forms~~ forms, statements and ~~registration statements with the SEC~~ other documents required to be filed ~~by it pursuant to~~ with the SEC since December 31, 1997 through the date hereof (collectively, including all exhibits thereto and any registration statement filed since such date, the “▇▇▇▇▇▇▇ SEC Documents”). All of the ▇▇▇▇▇▇▇ SEC Documents (other than preliminary material), as of their respective filing dates, complied in all material respects with all applicable requirements of the Securities Act and the Securities ~~Act Rules, or the~~ Exchange Act ~~and~~ of 1934, as amended (the “Exchange ~~Act Rules~~Act”), and, in each ~~such case since January 1~~case, 2005 (collectively, and in each case including all annexes and schedules thereto and documents incorporated by reference therein, the “Parent SEC Documents”). As of their respective dates (or if subsequently amended or superseded by a filing prior to the date of this Agreement, on the date of such filing), the Parent SEC Documents complied as to form in all material respects with the requirements of the Securities Act or the Exchange Act, as the case may be, and the rules and regulations ~~of the SEC~~ promulgated thereunder applicable to such ~~Parent~~ ▇▇▇▇▇▇▇ SEC Documents~~, and none~~ . None of the ~~Parent~~ ▇▇▇▇▇▇▇ SEC Documents as at the time of ~~such dates contained~~ filing contained, nor will any report, schedule, form, statement or other document filed by ▇▇▇▇▇▇▇ or ▇▇▇▇▇▇▇ Partnership after the date hereof and prior to the Effective Time contain, any untrue statement of a material fact or omitted to state a any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading. ~~To Parent’s Knowledge, as~~ The consolidated financial statements of ~~the date hereof, none of the Parent SEC Documents is the subject of ongoing SEC review. (b) Parent is~~ ▇▇▇▇▇▇▇ included in ~~compliance with, and has complied, in all material respects with (i) the applicable provisions of~~ the ▇▇▇▇▇▇▇ SEC Documents or of ▇▇-▇▇▇▇▇ Act of 2002 and the related rules and regulations promulgated thereunder, and (ii) the applicable listing and corporate governance rules and regulations of NASDAQ. Parent has established and maintains disclosure controls and procedures and internal control over financial reporting (as such terms are defined Partnership included in paragraphs (e) and (f), respectively, of Rule 13a-15 under the Exchange Act) as required by Rule 13a-15 under the Exchange Act. Parent’s disclosure controls and procedures are reasonably designed to ensure that all material information required to be disclosed by Parent in the reports that it files or furnishes under the Exchange Act is recorded, processed, summarized and reported within the time periods specified in the rules and forms of the SEC, and that all such material information is accumulated and communicated to the management of Parent as appropriate to allow timely decisions regarding required disclosure and to make the certifications required pursuant to Sections 302 and 906 of the ▇▇▇▇▇▇~~▇▇-▇▇▇▇~~▇ Act. The management of Parent has completed its assessment of the effectiveness of Parent’s internal control over financial reporting in compliance with the requirements of Section 404 of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act for the year ended December 31, 2006, and such assessment concluded that such controls were effective to provide reasonable assurance regarding the reliability of Parent’s financial reporting and the preparation of Parent’s financial statements for external purposes in accordance with GAAP. Parent has disclosed, based on its assessment of the effectiveness of Parent’s internal control over financial reporting in compliance with the requirements of Section 404 of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act for the year ended December 31, 2006, to Parent’s independent registered accounting firm and the audit committee of the Board of Directors of Parent (A) any significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect Parent’s ability to record, process, summarize and report financial information and (B) any fraud, whether or not material, of which there is Parent’s Knowledge that involves management or other employees who have a significant role in Parent’s internal control over financial reporting for the year ended December 31, 2006. Parent any has made available to the Company a summary of any such disclosures made by management to such accounting firm or audit committee for the year ended December 31, 2006. (c) The consolidated financial statements of Parent included in the Parent SEC Documents ~~(the “Parent SEC Financial Statements”) (i) have been prepared in accordance with GAAP (except as may be otherwise indicated therein~~ complied, or ~~in the notes thereto and except, in the case of unaudited consolidated quarterly statements~~will comply, as ~~permitted by Form 10-Q of the Exchange Act), applied on a consistent basis during the periods involved, (ii) complied~~ to form in all material respects with applicable accounting requirements and the published rules and regulations of the SEC with respect thereto, ~~and~~ have been or will be prepared in accordance with generally accepted accounting principles (~~iii~~“GAAP”) fairly present in all material respects the consolidated financial position of Parent and its consolidated Parent Subsidiaries as of the respective dates thereof and the consolidated statements of income, cash flows and changes in stockholders’ equity for the respective periods then ended (~~subject~~except, in the case of unaudited ~~quarterly~~ statements, ~~to normal year-end audit adjustments~~ as permitted by the applicable rules and regulations of the SEC) applied on a consistent basis during the periods involved (except as may be indicated in the notes thereto) and fairly presented, or will fairly present, in all material respects in accordance with the applicable requirements of GAAP and the ~~absence of footnotes). (d) As of March 31, 2007, neither Parent nor any~~ applicable rules and regulations of the ~~Parent~~ SEC, the consolidated financial position of ▇▇▇▇▇▇▇ and its Subsidiaries ~~had~~ or ▇▇▇▇▇▇▇ Partnership and its Subsidiaries, as the case may be, in each case, taken as a whole, as of the dates thereof and the consolidated results of operations and cash flows for the periods then ended (except, in the case of unaudited statements, as permitted by Form 10-Q under the Exchange Act). Except as set forth in Schedule 2.6(b) to the ▇▇▇▇▇▇▇ Disclosure Letter, ▇▇▇▇▇▇▇ has no Subsidiaries which are not consolidated for accounting purposes. Except for liabilities and obligations set forth in the ▇▇▇▇▇▇▇ SEC Documents or in Schedule 2.6(c) to the ▇▇▇▇▇▇▇ Disclosure Letter, none of ▇▇▇▇▇▇▇, any ▇▇▇▇▇▇▇ Subsidiary or ▇▇▇▇▇▇▇ TRS has any liabilities or obligations ~~that would have been~~ of any nature (whether accrued, absolute, contingent or otherwise) required by GAAP to be ~~reflected in the~~ set forth on a consolidated balance sheet of ~~Parent and the Parent Subsidiaries as of such date, except (i) for such liabilities and obligations reflected, reserved against~~ ▇▇▇▇▇▇▇ or ~~otherwise disclosed~~ in the ~~consolidated balance sheet of Parent~~ notes thereto and the Parent Subsidiaries as of such date (including the notes thereto) that is included in the Parent SEC Financial Statements and (ii) for such liabilities and obligations as would not be reasonably expected to havewhich, individually or in the aggregate, would reasonably be expected to have a ~~Parent~~ ▇▇▇▇▇▇▇ Material Adverse Effect (it is understood and agreed that the representations and warranties contained in this Section 5.5(d): (x) do not apply to matters described in any of Section 5.4, the other provisions of this Section 5.5, and Sections 5.7, 5.8, 5.9, 5.10, 5.11 and 5.17 (which are addressed exclusively in those Sections) and (y) shall not be deemed breached if such breach relates to a matter which is covered by a representation or warranty of Parent and Merger Sub contained in this Article V (other than this Section 5.5(d)) that contains a “Parent’s Knowledge” qualification)Effect. (e) Since December 31, 2006 to the date of this Agreement, (i) neither Parent nor any Parent Subsidiary nor, to Parent’s Knowledge, any director, officer, auditor, accountant or representative of Parent or any of the Parent Subsidiaries has received any written complaint, allegation, assertion or claim that Parent or any of the Parent Subsidiaries has engaged in improper or illegal accounting or auditing practices or maintains improper or inadequate internal accounting controls relating to Parent and the Parent Subsidiaries, taken as a whole, (ii) no attorney representing Parent or any Parent Subsidiary has made a report to Parent’s chief legal officer, chief executive officer or Board of Directors (or any committee thereof) pursuant to the SEC’s Standards of Professional Conduct for Attorneys (17 CFR Part 205), and (iii) Parent has disclosed to its outside auditors any fraud, whether or not material, of which there is Parent’s Knowledge that involves management or other employees who have a significant role in Parent’s internal control over financial reporting.

Appears in 1 contract

Sources: Merger Agreement (Equity Office Properties Trust)

SEC Documents; Financial Statements; Undisclosed Liabilities. (a) ~~Parent~~ Easterly has filed or furnished all reports, schedules, ~~forms~~ forms, statements, registration statements, prospectuses and ~~registration statements with the SEC~~ other documents required to be filed or furnished by ~~it pursuant to~~ Easterly with the SEC under the Securities Act ~~and the Securities Act Rules,~~ or the Exchange Act ~~and the Exchange Act Rules~~since April 29, ~~in each such case since January 1~~2015, ~~2005 (collectively~~together with any exhibits, amendments, restatements or supplements thereto, and ~~in each case~~ will file or furnish all forms, reports, schedules, statements, registration statements, prospectuses and other documents, together with any exhibits, amendments, restatements or supplements thereto, required to be filed or furnished, as applicable, by it subsequent to the date hereof through and including ~~all annexes and schedules thereto and documents incorporated by reference therein~~the Closing Date, with the SEC (the “~~Parent~~ Easterly SEC Documents”). . (b) As of ~~their~~ its respective ~~dates (or~~ filing date, and, if ~~subsequently amended or superseded by a filing~~ amended, as of the date of the last amendment prior to the date of this Agreement, ~~on the date of such filing), the Parent~~ each Easterly SEC ~~Documents~~ Document complied ~~as to form~~ in all material respects with the requirements of all applicable Laws, including the Exchange Act, the Securities Act or and the ~~Exchange~~ S▇▇▇▇▇▇▇-▇▇▇▇▇ Act, and the rules and regulations thereunder, as the case may be, ~~and the rules and regulations of the SEC promulgated thereunder~~ applicable to such ~~Parent~~ Easterly SEC ~~Documents,~~ Document and ~~none of the Parent SEC Documents as of such dates contained~~ did not contain any untrue statement of a material fact or ~~omitted~~ omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading. (c) The consolidated financial statements of Easterly included in the Easterly SEC Documents (including, in each case, any notes or schedules thereto) and all related compilations, reviews and other reports issued by Easterly’s accountants with respect thereto (the “Easterly SEC Financial Statements”), comply as to form in all material respects with applicable accounting requirements and the published rules and regulations of the SEC with respect thereto. ~~To Parent’s Knowledge~~The Easterly SEC Financial Statements fairly present, in all material respects, the financial condition and the results of operations, cash flows and changes in stockholders’ equity of Easterly (on a consolidated basis) as of the ~~date hereof~~respective dates of and for the periods referred to in the Easterly SEC Financial Statements, ~~none~~ and were prepared in accordance with GAAP (except as otherwise noted therein) applied on a consistent basis during the periods involved (except as may be indicated in the notes thereto), subject, in the case of interim Easterly SEC Financial Statements, to normal year-end adjustments (which are not material in significance or amount) and the absence of notes. The books and records of Easterly are accurate and complete in all material respects, have been maintained in accordance with sound business practices and accurately present and reflect in all material respects all of the ~~Parent~~ transactions and actions therein described and the Easterly SEC ~~Documents is~~ Financial Statements have been prepared, in all material respects, in accordance with such books and records. At the ~~subject~~ Closing, all such books and records will be in the possession of ~~ongoing SEC review~~Easterly. No financial statements of any Person other than Easterly are required by GAAP to be included in the consolidated financial statements of Easterly. (bd) ~~Parent~~ Easterly is in compliance ~~with, and has complied,~~ in all material respects with (i) the applicable provisions of the ▇S▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002 and the related rules and regulations promulgated ~~thereunder,~~ thereunder or under the Exchange Act (the “S▇▇▇▇▇▇▇-▇▇▇▇▇ Act”) and (ii) the applicable listing and corporate governance rules and regulations of the NASDAQ. (e) Easterly has made available to Sirius true and complete copies of all written comment letters from the staff of the SEC received since April 29, 2015 relating to the Easterly SEC Documents and all written responses of Easterly thereto, which are otherwise publicly available on the SEC’s E▇▇▇▇ system. ~~Parent~~ There are no outstanding or unresolved comments in comment letters received from the SEC staff with respect to any Easterly SEC Documents and none of the Easterly SEC Documents is the subject of ongoing SEC review. There are no internal investigations, any SEC inquiries or investigations or other governmental inquiries or investigations pending regarding any accounting practices of Easterly. (f) Easterly has established and maintains disclosure controls and procedures and internal control over financial reporting (as such terms are defined in paragraphs (e) and (f), respectively, of Rule 13a-15 and paragraph (e) of Rule 15d-15 under the Exchange Act) as required by ~~Rule~~ Rules 13a-15 and 15d-15 under the Exchange Act. ~~Parent~~Easterly’s disclosure controls and procedures are ~~reasonably~~ designed to ensure that all ~~material~~ information (both financial and non-financial) required to be disclosed by ~~Parent~~ Easterly in the reports that it files or furnishes under the Exchange Act is recorded, processed, summarized and reported within the time periods specified in the rules and forms of the SEC, and that all such ~~material~~ information is accumulated and communicated to ~~the~~ Easterly’s management ~~of Parent~~ as appropriate to allow timely decisions regarding required disclosure and to make the certifications required pursuant to Sections 302 and 906 of the ▇S▇▇▇▇▇▇▇-▇▇▇▇▇ Act. ~~The management of Parent has completed its assessment of the effectiveness of Parent’s internal control over financial reporting in compliance with the requirements of Section 404 of the~~ E▇▇▇▇▇▇▇~~▇-▇▇▇▇~~’▇ Act for the year ended December 31, 2006, and such assessment concluded that such controls were effective to provide reasonable assurance regarding the reliability of Parent’s financial reporting and the preparation of Parent’s financial statements for external purposes in accordance with GAAP. Parent management has ~~disclosed, based on its~~ completed an assessment of the effectiveness of ~~Parent~~Easterly’s disclosure controls and procedures and, to the extent required by applicable Law, presented in any applicable Easterly SEC Document, or any amendment thereto, its conclusions about the effectiveness of the disclosure controls and procedures as of the end of the period covered by such report or amendment based on such evaluation. Based on Easterly’s management’s most recently completed evaluation of Easterly’s internal control over financial ~~reporting in compliance with the requirements of Section 404 of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act for the year ended December 31~~reporting, ~~2006, to Parent’s independent registered accounting firm and the audit committee of the Board of Directors of Parent~~ (Ai) ~~any~~ Easterly had no significant deficiencies ~~and~~ or material weaknesses in the design or operation of its internal control over financial reporting ~~which are~~ that would reasonably ~~likely~~ be expected to adversely affect ~~Parent~~Easterly’s ability to record, process, summarize and report financial information and (Bii) Easterly does not have Knowledge of any fraud, whether or not material, ~~of which there is Parent’s Knowledge~~ that involves management or other employees who have a significant role in Parent’s internal control over financial reporting for the year ended December 31, 2006. Parent any has made available to the Company a summary of any such disclosures made by management to such accounting firm or audit committee for the year ended December 31, 2006. (c) The consolidated financial statements of Parent included in the Parent SEC Documents (the “Parent SEC Financial Statements”) (i) have been prepared in accordance with GAAP (except as may be otherwise indicated therein or in the notes thereto and except, in the case of unaudited consolidated quarterly statements, as permitted by Form 10-Q of the Exchange Act), applied on a consistent basis during the periods involved, (ii) complied in all material respects with published rules and regulations of the SEC with respect thereto, and (iii) fairly present in all material respects the consolidated financial position of Parent and its consolidated Parent Subsidiaries as of the respective dates thereof and the consolidated statements of income, cash flows and changes in stockholders’ equity for the respective periods then ended (subject, in the case of unaudited quarterly statements, to normal year-end audit adjustments and the absence of footnotes). (d) As of March 31, 2007, neither Parent nor any of the Parent Subsidiaries had any liabilities or obligations that would have been required by GAAP to be reflected in the consolidated balance sheet of Parent and the Parent Subsidiaries as of such date, except (i) for such liabilities and obligations reflected, reserved against or otherwise disclosed in the consolidated balance sheet of Parent and the Parent Subsidiaries as of such date (including the notes thereto) that is included in the Parent SEC Financial Statements and (ii) for such liabilities and obligations as would not be reasonably expected to have, individually or in the aggregate, a Parent Material Adverse Effect (it is understood and agreed that the representations and warranties contained in this Section 5.5(d): (x) do not apply to matters described in any of Section 5.4, the other provisions of this Section 5.5, and Sections 5.7, 5.8, 5.9, 5.10, 5.11 and 5.17 (which are addressed exclusively in those Sections) and (y) shall not be deemed breached if such breach relates to a matter which is covered by a representation or warranty of Parent and Merger Sub contained in this Article V (other than this Section 5.5(d)) that contains a “Parent’s Knowledge” qualification). (e) Since December 31, 2006 to the date of this Agreement, (i) neither Parent nor any Parent Subsidiary nor, to Parent’s Knowledge, any director, officer, auditor, accountant or representative of Parent or any of the Parent Subsidiaries has received any written complaint, allegation, assertion or claim that Parent or any of the Parent Subsidiaries has engaged in improper or illegal accounting or auditing practices or maintains improper or inadequate internal accounting controls relating to Parent and the Parent Subsidiaries, taken as a whole, (ii) no attorney representing Parent or any Parent Subsidiary has made a report to Parent’s chief legal officer, chief executive officer or Board of Directors (or any committee thereof) pursuant to the SEC’s Standards of Professional Conduct for Attorneys (17 CFR Part 205), and (iii) Parent has disclosed to its outside auditors any fraud, whether or not material, of which there is Parent’s Knowledge that involves management or other employees who have a significant role in ParentEasterly’s internal control over financial reporting. (g) Easterly does not have any liabilities or obligations of any nature (whether absolute or contingent, asserted or unasserted, known or unknown, primary or secondary, direct or indirect, and whether or not accrued), except (i) as disclosed, reflected or reserved against in the most recent balance sheet included in the Easterly SEC Financial Statements or the notes thereto filed with the SEC prior to the date hereof, and (ii) for liabilities and obligations arising out of or in connection with this Agreement, the Merger or the other Transactions and disclosed prior to the date hereof to Sirius.

Appears in 1 contract

Sources: Merger Agreement (Easterly Acquisition Corp.)

SEC Documents; Financial Statements; Undisclosed Liabilities. ~~(a) Parent~~ Mack- ------------------------------------------------------------ Cali has filed all required reports, schedules, ~~forms~~ forms, statements and ~~registration statements~~ other documents with the SEC ~~required to be filed by it pursuant to the Securities Act and the Securities Act Rules, or the Exchange Act and the Exchange Act Rules, in each such case~~ since January 1, ~~2005~~ 1998, through the date hereof (~~collectively~~the "Mack-Cali SEC Documents"). Schedule 3.6(a) to the Mack-Cali Disclosure Letter contains a complete list of all Mack-Cali SEC Documents filed by Mack-Cali with the SEC since January 1, 1998, and ~~in each case including all annexes and schedules thereto and documents incorporated by reference therein, the “Parent SEC Documents”). As of their respective dates (~~on or ~~if subsequently amended or superseded by a filing~~ prior to the date of this Agreement~~, on~~ . All of the ~~date of such filing~~Mack-Cali SEC Documents (other than preliminary material or material subsequently amended), ~~the Parent SEC Documents~~ as of their respective filing dates, complied ~~as to form~~ in all material respects with ~~the~~ all applicable requirements of the Securities Act or and the Exchange ~~Act~~Act and, ~~as the case may be~~in each case, ~~and~~ the rules and regulations ~~of the SEC~~ promulgated thereunder applicable to such ~~Parent~~ Mack- Cali SEC Documents~~, and none~~ . None of the ~~Parent~~ Mack-Cali SEC Documents as at the time of ~~such dates~~ filing contained any untrue statement of a material fact or omitted to state a any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading~~. To Parent’s Knowledge~~, ~~as of~~ except to the extent such statements have been amended, modified or superseded by later Mack-Cali SEC Documents filed and publicly available prior to the date ~~hereof, none~~ of this Agreement. The consolidated financial statements of Mack-Cali and the ~~Parent~~ Mack-Cali Subsidiaries (including Mack-Cali Partnership) included in the Mack-Cali SEC Documents ~~is the subject of ongoing SEC review. (b) Parent is in compliance with, and has complied,~~ complied as to form in all material respects with ~~(i) the~~ applicable ~~provisions of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002~~ accounting requirements and the related rules and regulations promulgated thereunder, and (ii) the applicable listing and corporate governance rules and regulations of NASDAQ. Parent has established and maintains disclosure controls and procedures and internal control over financial reporting (as such terms are defined in paragraphs (e) and (f), respectively, of Rule 13a-15 under the Exchange Act) as required by Rule 13a-15 under the Exchange Act. Parent’s disclosure controls and procedures are reasonably designed to ensure that all material information required to be disclosed by Parent in the reports that it files or furnishes under the Exchange Act is recorded, processed, summarized and reported within the time periods specified in the rules and forms of the SEC, and that all such material information is accumulated and communicated to the management of Parent as appropriate to allow timely decisions regarding required disclosure and to make the certifications required pursuant to Sections 302 and 906 of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act. The management of Parent has completed its assessment of the effectiveness of Parent’s internal control over financial reporting in compliance with the requirements of Section 404 of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act for the year ended December 31, 2006, and such assessment concluded that such controls were effective to provide reasonable assurance regarding the reliability of Parent’s financial reporting and the preparation of Parent’s financial statements for external purposes in accordance with GAAP. Parent has disclosed, based on its assessment of the effectiveness of Parent’s internal control over financial reporting in compliance with the requirements of Section 404 of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act for the year ended December 31, 2006, to Parent’s independent registered accounting firm and the audit committee of the Board of Directors of Parent (A) any significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect Parent’s ability to record, process, summarize and report financial information and (B) any fraud, whether or not material, of which there is Parent’s Knowledge that involves management or other employees who have a significant role in Parent’s internal control over financial reporting for the year ended December 31, 2006. Parent any has made available to the Company a summary of any such disclosures made by management to such accounting firm or audit committee for the year ended December 31, 2006. (c) The consolidated financial statements of Parent included in the Parent SEC Documents (the “Parent SEC Financial Statements”) (i) have been prepared in accordance with GAAP (except as may be otherwise indicated therein or in the notes thereto and except, in the case of unaudited consolidated quarterly statements, as permitted by Form 10-Q of the Exchange Act), applied on a consistent basis during the periods involved, (ii) complied in all material respects with published rules and regulations of the SEC with respect thereto, have been prepared in accordance with GAAP (except, in the case of unaudited statements, as permitted by the applicable rules and regulations of the SEC) applied on a consistent basis during the periods involved (~~iii~~except as may be indicated in the notes thereto) and fairly ~~present~~ presented in all material ~~respects~~ respects, in accordance with the applicable requirements of GAAP and the applicable rules and regulations of the SEC, the consolidated financial position of ~~Parent~~ Mack-Cali and ~~its consolidated Parent~~ the Mack-Cali Subsidiaries (including Mack-Cali Partnership) taken as a whole, as of the ~~respective~~ dates thereof and the consolidated ~~statements~~ results of ~~income,~~ operations and cash flows ~~and changes in stockholders’ equity~~ for the ~~respective~~ periods then ended (subject, in the case of unaudited ~~quarterly~~ statements, to normal year-end audit ~~adjustments~~ adjustments). Except as set forth in Schedule 3.6(b) to the Mack-Cali Disclosure Letter, Mack-Cali has no Subsidiaries which are not consolidated for accounting purposes. Except for liabilities and obligations set forth in the ~~absence~~ Mack-Cali SEC Documents or in Schedule 3.6(c) to the Mack-Cali Disclosure Letter, none of ~~footnotes). (d) As of March 31~~Mack-Cali, ~~2007, neither Parent nor~~ any of Mack-Cali Subsidiary or the ~~Parent Subsidiaries had~~ Mack-Cali Non-controlled Subsidiary has any liabilities or obligations ~~that would have been~~ of any nature (whether accrued, absolute, contingent or otherwise) required by GAAP to be ~~reflected in the~~ set forth on a consolidated balance sheet of ~~Parent and the Parent Subsidiaries as of such date, except (i) for such liabilities and obligations reflected, reserved against~~ Mack-Cali or ~~otherwise disclosed~~ in the ~~consolidated balance sheet of Parent~~ notes thereto and the Parent Subsidiaries as of such date (including the notes thereto) that is included in the Parent SEC Financial Statements and (ii) for such liabilities and obligations as would not be reasonably expected to havewhich, individually or in the aggregate, would have a ~~Parent~~ Mack-Cali Material Adverse Effect (it is understood and agreed that the representations and warranties contained in this Section 5.5(d): (x) do not apply to matters described in any of Section 5.4, the other provisions of this Section 5.5, and Sections 5.7, 5.8, 5.9, 5.10, 5.11 and 5.17 (which are addressed exclusively in those Sections) and (y) shall not be deemed breached if such breach relates to a matter which is covered by a representation or warranty of Parent and Merger Sub contained in this Article V (other than this Section 5.5(d)) that contains a “Parent’s Knowledge” qualification)Effect. (e) Since December 31, 2006 to the date of this Agreement, (i) neither Parent nor any Parent Subsidiary nor, to Parent’s Knowledge, any director, officer, auditor, accountant or representative of Parent or any of the Parent Subsidiaries has received any written complaint, allegation, assertion or claim that Parent or any of the Parent Subsidiaries has engaged in improper or illegal accounting or auditing practices or maintains improper or inadequate internal accounting controls relating to Parent and the Parent Subsidiaries, taken as a whole, (ii) no attorney representing Parent or any Parent Subsidiary has made a report to Parent’s chief legal officer, chief executive officer or Board of Directors (or any committee thereof) pursuant to the SEC’s Standards of Professional Conduct for Attorneys (17 CFR Part 205), and (iii) Parent has disclosed to its outside auditors any fraud, whether or not material, of which there is Parent’s Knowledge that involves management or other employees who have a significant role in Parent’s internal control over financial reporting.

Appears in 1 contract

Sources: Agreement and Plan of Merger (Prentiss Properties Trust/Md)

SEC Documents; Financial Statements; Undisclosed Liabilities. (a) ~~Parent~~ The Company has filed or furnished all reports, schedules, ~~forms~~ forms, statements, registration statements, prospectuses and ~~registration statements with the SEC~~ other documents required to be filed or furnished by ~~it pursuant to~~ the Company with the SEC under the Securities Act ~~and the Securities Act Rules,~~ or the Exchange Act ~~and~~ since the ~~Exchange Act Rules, in each such case since January 1, 2005~~ Applicable Date (~~collectively, and in each case including all annexes and schedules thereto and documents incorporated by reference therein,~~ the “~~Parent~~ Company SEC Documents”). None of the Subsidiaries of the Company is required to make any filings with the SEC. (b) As of ~~their~~ its respective ~~dates~~ filing date (or or, if ~~subsequently~~ amended or superseded ~~by a filing~~ prior to the date of this Agreement, on the date of such filing), ~~the Parent~~ each Company SEC ~~Documents complied~~ Document complied, as to form in all material respects with the requirements of the ~~Securities~~ NASDAQ, the Exchange Act or the ~~Exchange~~ Securities Act, as the case may be, and the rules and regulations of the SEC promulgated thereunder applicable to such ~~Parent~~ Company SEC ~~Documents~~Document. As of its respective filing date (or, ~~and none~~ if amended or superseded prior to the date of this Agreement, on the ~~Parent SEC Documents as~~ date of such ~~dates contained~~ filing), each Company SEC Document did not contain any untrue statement of a material fact or ~~omitted~~ 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 were made, not misleading. ~~To Parent’s Knowledge, as~~ As of the date ~~hereof~~of this Agreement, ~~none~~ there are no outstanding or unresolved comments received from the SEC with respect to any Company SEC Document that would be required to be disclosed under Item 1B of Form 10-K under the ~~Parent SEC Documents is the subject of ongoing SEC review~~Exchange Act. (bc) ~~Parent is~~ The audited consolidated financial statements and unaudited consolidated interim quarterly financial statements of the Company included or incorporated by reference in ~~compliance with~~the Company SEC Documents (including, ~~and has complied~~in each case, any notes or schedules thereto) (the “Company SEC Financial Statements”) (i) as of their respective dates of filing with the SEC complied as to form in all material respects with ~~(i)~~ the ~~applicable provisions of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002 and the related~~ published rules and regulations ~~promulgated thereunder,~~ of the SEC with respect thereto and (ii) fairly present, in all material respects, the ~~applicable listing~~ financial condition and ~~corporate governance rules~~ the results of operations, cash flows and ~~regulations~~ changes in stockholders’ equity of ~~NASDAQ. Parent has established~~ the Company and ~~maintains disclosure controls~~ its Subsidiaries (on a consolidated basis) as of the respective dates of and ~~procedures~~ for the periods referred to in the Company SEC Financial Statements, and ~~internal control over financial reporting~~ were prepared in accordance with GAAP consistently applied (except as ~~such terms are defined~~ may be indicated in ~~paragraphs (e) and (f)~~the notes thereto or, ~~respectively~~in the case of unaudited statements, ~~of Rule 13a-15~~ as permitted by Form 10-Q under the Exchange Act), subject, in the case of unaudited interim Company SEC Financial Statements, to normal year-end adjustments and the absence of notes. (d) as The Company has timely filed all certifications and statements required by (i) Rule ~~13a-15~~ 13a-14 and Rule 15d-14 under the Exchange Act. Parent’s disclosure controls and procedures are reasonably designed to ensure that all material information required to be disclosed by Parent in the reports that it files or furnishes under the Exchange Act is recorded, processed, summarized and reported within the time periods specified in the rules and forms of the SEC, and that all such material information is accumulated and communicated to the management of Parent as appropriate to allow timely decisions regarding required disclosure and to make the certifications required pursuant to ; (ii) 18 U.S.C. Section 1350 (Sections 302 and 906 of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act~~. The management of Parent has completed its assessment of~~ ); and (iii) any related rules and regulations promulgated by the ~~effectiveness of Parent’s internal control over financial reporting in compliance~~ SEC or the NASDAQ with ~~the requirements of Section 404 of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act for the year ended December 31, 2006~~respect to all applicable Company SEC Documents, and the statements contained in any such ~~assessment concluded that such~~ certifications are complete and correct as of their respective dates in all material respects. (e) At all times since the Applicable Date, the Company has maintained disclosure controls ~~were effective~~ and procedures required by Rule 13a-15 or Rule 15d-15 under the Exchange Act designed to provide reasonable assurance ~~regarding the reliability of Parent’s financial reporting and the preparation of Parent’s financial statements for external purposes~~ that: (i) transactions are executed in accordance with ~~GAAP. Parent has disclosed, based on its assessment~~ management’s general or specific authorization; (ii) transactions are recorded as necessary to permit preparation of financial statements in conformity with GAAP and to maintain accountability for assets; (iii) access to assets is permitted only in accordance with management’s general or specific authorization; and (iv) the ~~effectiveness of Parent’s internal control over financial reporting in compliance~~ recorded accountability for assets is compared with the ~~requirements of Section 404 of~~ existing assets at reasonable intervals and appropriate action is taken with respect to any differences. Since the ~~▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act for the year ended December 31~~Applicable Date, ~~2006, to Parent’s independent registered accounting firm and the audit committee of the Board of Directors of Parent~~ (Ai) ~~any~~ there have been no significant deficiencies ~~and~~ or material weaknesses in the design or operation of internal ~~control~~ controls over financial reporting (whether or not remediated) which ~~are~~ would reasonably ~~likely~~ be expected to adversely affect ~~Parent~~the Company’s ability to record, process, summarize and report financial ~~information~~ information, (ii) there has been no change in the Company’s internal control over financial reporting that has materially affected, or is reasonably likely to materially affect, the Company’s internal control over financial reporting, and (Biii) neither the Company nor the Company’s independent registered accountant has identified or been made aware of any ~~fraud, whether or not material, of which there is Parent’s Knowledge~~ fraud that involves the management or other employees of the Company who have a significant role in ~~Parent~~the Company’s internal ~~control~~ controls over financial ~~reporting for~~ reporting. The Company and each of its Subsidiaries maintain a system of disclosure controls and procedures (as defined in Rule 13a-15 or Rule 15d-15 under the ~~year ended December 31~~Exchange Act) that is designed to ensure that all material information required to be disclosed by the Company in the reports that it files or submits under the Exchange Act is recorded, ~~2006. Parent any has made available~~ processed, summarized and reported, within the time period’s specified in the SEC’s rules and forms, and is accumulated and communicated to the ~~Company a summary~~ Company’s management, including its principal executive officer and principal financial officer, as appropriate, to allow timely decisions regarding disclosure. There are no outstanding loans or other extensions of ~~any such disclosures~~ credit made by ~~management~~ the Company or any of its Subsidiaries to ~~such accounting firm~~ any executive officer (as defined in Rule 3b-7 under the Exchange Act) or ~~audit committee for~~ director of the ~~year ended December 31, 2006~~Company. (cf) The consolidated financial statements of Parent included in the Parent SEC Documents (the “Parent SEC Financial Statements”) (i) have been prepared in accordance with GAAP (except as may be otherwise indicated therein or in the notes thereto and except, in the case of unaudited consolidated quarterly statements, as permitted by Form 10-Q of the Exchange Act), applied on a consistent basis during the periods involved, (ii) complied in all material respects with published rules and regulations of the SEC with respect thereto, and (iii) fairly present in all material respects the consolidated financial position of Parent Company and its ~~consolidated Parent~~ Subsidiaries as of the respective dates thereof and the consolidated statements of income, cash flows and changes in stockholders’ equity for the respective periods then ended (subject, in the case of unaudited quarterly statements, to normal year-end audit adjustments and the absence of footnotes). (d) As of March 31, 2007, neither Parent nor any of the Parent Subsidiaries had do not have any liabilities or obligations ~~that would have been~~ of any nature (whether absolute or contingent, asserted or unasserted, known or unknown, primary or secondary, direct or indirect, and whether or not accrued), required by GAAP to be reflected ~~in the~~ or reserved on a consolidated balance sheet of ~~Parent and~~ the ~~Parent Subsidiaries as of such date,~~ Company (or the notes thereto) except (i) ~~for such liabilities and obligations reflected~~as disclosed, reflected or reserved against ~~or otherwise disclosed~~ in the ~~consolidated~~ most recent balance sheet ~~of Parent and~~ included in the ~~Parent Subsidiaries as of such date (including~~ Company SEC Financial Statements or the notes thereto~~) that is included in the Parent SEC Financial Statements and~~ , (ii) for ~~such~~ liabilities and obligations ~~as would not be reasonably expected~~ incurred in the ordinary course of business since the date of the most recent balance sheet included in the Company SEC Financial Statements (but excluding violations of law, breaches of Contracts or Permits, torts or infringement), none of which are material to ~~have~~the Company, (iii) for liabilities and obligations arising out of or in connection with this Agreement, the Merger or the Transactions and (iv) for liabilities and obligations that, individually or in the aggregate, have not had, and would not reasonably be expected to have, a ~~Parent~~ Company Material Adverse Effect (it is understood and agreed that the representations and warranties contained in this Section 5.5(d): (x) do not apply to matters described in any of Section 5.4, the other provisions of this Section 5.5, and Sections 5.7, 5.8, 5.9, 5.10, 5.11 and 5.17 (which are addressed exclusively in those Sections) and (y) shall not be deemed breached if such breach relates to a matter which is covered by a representation or warranty of Parent and Merger Sub contained in this Article V (other than this Section 5.5(d)) that contains a “Parent’s Knowledge” qualification)Effect. (e) Since December 31, 2006 to the date of this Agreement, (i) neither Parent nor any Parent Subsidiary nor, to Parent’s Knowledge, any director, officer, auditor, accountant or representative of Parent or any of the Parent Subsidiaries has received any written complaint, allegation, assertion or claim that Parent or any of the Parent Subsidiaries has engaged in improper or illegal accounting or auditing practices or maintains improper or inadequate internal accounting controls relating to Parent and the Parent Subsidiaries, taken as a whole, (ii) no attorney representing Parent or any Parent Subsidiary has made a report to Parent’s chief legal officer, chief executive officer or Board of Directors (or any committee thereof) pursuant to the SEC’s Standards of Professional Conduct for Attorneys (17 CFR Part 205), and (iii) Parent has disclosed to its outside auditors any fraud, whether or not material, of which there is Parent’s Knowledge that involves management or other employees who have a significant role in Parent’s internal control over financial reporting.

Appears in 1 contract

Sources: Agreement and Plan of Merger (Stericycle Inc)

SEC Documents; Financial Statements; Undisclosed Liabilities. (a) Parent has filed all material reports, schedules, ~~forms~~ forms, statements and ~~registration statements~~ other documents with the SEC required to be filed by it Parent pursuant to the Securities Act of 1933 (together with the rules and regulations promulgated thereunder, the “Securities ~~Act Rules,~~ Act”) or the Exchange Act ~~and the Exchange Act Rules, in each such case~~ since ~~January~~ October 1, ~~2005~~ 2016 (~~collectively, and in each case including all annexes and schedules thereto and documents incorporated by reference therein,~~ the “~~Parent~~ SEC Documents”). As of their respective dates ~~(or if subsequently amended or superseded by a filing prior to the date~~ of ~~this Agreement, on the date of such~~ filing), the ~~Parent~~ SEC Documents complied as to form in all material respects with the requirements of the Securities ~~Act or~~ Act, the Exchange Act, and the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002, as the case may be, and the rules and regulations of the SEC promulgated thereunder applicable ~~to such Parent SEC Documents~~thereto, and except to the extent amended or superseded by a subsequent filing with the SEC prior to the date of this Agreement, as of such respective dates, none of the ~~Parent~~ SEC Documents ~~as of such dates~~ contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they 4832-2222-1976\19 were made, not misleading. ~~To Parent’s Knowledge, as~~ There are no outstanding or unresolved comments in comment letters from the SEC staff with respect to any of the ~~date hereof~~SEC Documents. To the Knowledge of Seller, none of the ~~Parent~~ SEC Documents is the subject of ongoing SEC ~~review~~review or outstanding SEC investigation. (b) Each of the audited consolidated financial statements and the unaudited quarterly financial statements (including, in each case, the notes thereto) of Parent is included in ~~compliance with, and has complied,~~ the SEC Documents (i) when filed complied as to form in all material respects with ~~(i)~~ the applicable provisions of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002 and the related rules and regulations promulgated thereunder, and (ii) the applicable listing and corporate governance rules and regulations of NASDAQ. Parent has established and maintains disclosure controls and procedures and internal control over financial reporting (as such terms are defined in paragraphs (e) and (f), respectively, of Rule 13a-15 under the Exchange Act) as required by Rule 13a-15 under the Exchange Act. Parent’s disclosure controls and procedures are reasonably designed to ensure that all material information required to be disclosed by Parent in the reports that it files or furnishes under the Exchange Act is recorded, processed, summarized and reported within the time periods specified in the rules and forms of the SEC, and that all such material information is accumulated and communicated to the management of Parent as appropriate to allow timely decisions regarding required disclosure and to make the certifications required pursuant to Sections 302 and 906 of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act. The management of Parent has completed its assessment of the effectiveness of Parent’s internal control over financial reporting in compliance with the requirements of Section 404 of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act for the year ended December 31, 2006, and such assessment concluded that such controls were effective to provide reasonable assurance regarding the reliability of Parent’s financial reporting and the preparation of Parent’s financial statements for external purposes in accordance with GAAP. Parent has disclosed, based on its assessment of the effectiveness of Parent’s internal control over financial reporting in compliance with the requirements of Section 404 of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act for the year ended December 31, 2006, to Parent’s independent registered accounting firm and the audit committee of the Board of Directors of Parent (A) any significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect Parent’s ability to record, process, summarize and report financial information and (B) any fraud, whether or not material, of which there is Parent’s Knowledge that involves management or other employees who have a significant role in Parent’s internal control over financial reporting for the year ended December 31, 2006. Parent any has made available to the Company a summary of any such disclosures made by management to such accounting firm or audit committee for the year ended December 31, 2006. (c) The consolidated financial statements of Parent included in the Parent SEC Documents (the “Parent SEC Financial Statements”) (i) have been prepared in accordance with GAAP (except as may be otherwise indicated therein or in the notes thereto and except, in the case of unaudited consolidated quarterly statements, as permitted by Form 10-Q of the Exchange Act), applied on a consistent basis during the periods involved, (ii) complied in all material respects with published rules and regulations of the SEC with respect thereto, have been prepared in all material respects in accordance with GAAP (except, in the case of unaudited quarterly statements, to the extent permitted by Form 10-Q of the SEC or other rules and regulations of the SEC) applied on a consistent basis during the periods involved (except as may be indicated in the notes thereto), (ii) were prepared in accordance with the books and records of Seller (which books and records are complete and correct in all material respects) and (iii) fairly present in all material respects the consolidated financial position of ~~Parent and its consolidated Parent Subsidiaries~~ Seller as of the respective ~~dates thereof~~ dates, and for the periods referred to, therein and the consolidated ~~statements~~ results of ~~income,~~ its operations and cash flows ~~and changes in stockholders’ equity~~ for the ~~respective~~ periods then ended (subject, in the case of unaudited quarterly statements, to normal year-end ~~audit~~ adjustments and the absence of footnotes). (dc) ~~As of March 31, 2007, neither Parent nor any~~ Schedule 4.4(c) of the ~~Parent Subsidiaries had any liabilities or obligations that would have been required by GAAP to be reflected in the consolidated balance sheet~~ Disclosure Schedules sets forth a schedule of ~~Parent and the Parent Subsidiaries as~~ all Indebtedness of ~~such date~~Seller, ~~except~~ including (i) ~~for such liabilities and obligations reflected, reserved against or otherwise disclosed in~~ the ~~consolidated balance sheet of Parent and the Parent Subsidiaries~~ amount outstanding as of ~~such~~ the date ~~(including the notes thereto) that is included in the Parent SEC Financial Statements and~~ hereof, (ii) ~~for~~ the details of any limitations or penalties relating to prepayment of such ~~liabilities and obligations as would not be reasonably expected~~ Indebtedness, (iii) the Persons to ~~have, individually or in the aggregate, a Parent Material Adverse Effect (it~~ whom such Indebtedness is ~~understood and agreed that the representations and warranties contained in this Section 5.5(d): (x) do not apply to matters described in any of Section 5.4, the other provisions of this Section 5.5~~owed, and ~~Sections 5.7~~(iv) a general description of the nature of such Indebtedness, ~~5.8, 5.9, 5.10, 5.11~~ and ~~5.17 (which are addressed exclusively in those Sections) and (y) shall~~ whether or not ~~be deemed breached if~~ such ~~breach relates to a matter which~~ Indebtedness is ~~covered~~ secured by ~~a representation or warranty of Parent and Merger Sub contained in this Article V (other than this Section 5.5(d)) that contains a “Parent’s Knowledge” qualification)~~any Liens. (ed) ~~Since December 31~~There are no Liabilities or obligations (whether absolute, ~~2006~~ accrued, contingent, fixed or otherwise) of any nature of Seller or otherwise relating to the Business or the Purchased Assets, except for Liabilities and obligations that (i) if required under GAAP, as in effect on the date of this Agreement, to be reflected on a consolidated balance sheet of Seller (iincluding the notes thereto), are so reflected or reserved against in the most recent consolidated balance sheet of Seller (or the notes thereto) ~~neither Parent nor any Parent Subsidiary nor~~included in the SEC Documents (the “Balance Sheet”), ~~to Parent’s Knowledge~~(ii) were incurred since the date of such balance sheet in the Ordinary Course of Business, ~~any director~~(iii) arise under, ~~officer~~or are expressly contemplated by, ~~auditor, accountant or representative of Parent~~ this Agreement or any of the ~~Parent Subsidiaries has received~~ other Transaction Documents, (iv) any ~~written complaint~~Excluded Liabilities not in excess of $50,000 individually or $100,000 in the aggregate, ~~allegation~~(v) executory liabilities and obligations under Contracts that are to be performed after the Effective Time (none of which relates to any failure to perform, ~~assertion~~ improper performance, warranty or ~~claim that Parent~~ other breach, default or violation by the Seller or any of its Affiliates occurring prior to or as of the Parent Subsidiaries has engaged in improper or illegal accounting or auditing practices or maintains improper or inadequate internal accounting controls relating to Parent and the Parent Subsidiaries, taken as a whole, (iiClosing) no attorney representing Parent or any Parent Subsidiary has made a report to Parent’s chief legal officer, chief executive officer or Board of Directors (or any committee thereof) pursuant to the SEC’s Standards of Professional Conduct for Attorneys (17 CFR Part 205), and (~~iii~~vi) ~~Parent has disclosed to its outside auditors any fraud, whether or not material,~~ liabilities and obligations set forth in Schedule 4.4(d) of ~~which there is Parent’s Knowledge that involves management or other employees who have a significant role in Parent’s internal control over financial reporting~~the Disclosure Schedules.

Appears in 1 contract

Sources: Asset Purchase Agreement (Advanced BioEnergy, LLC)

SEC Documents; Financial Statements; Undisclosed Liabilities. ~~(a) Parent~~ Merry Land has filed all reports, schedules, ~~forms~~ forms, statements and ~~registration statements with the SEC~~ other documents required to be filed ~~by it pursuant to~~ with the SEC (the “Merry Land SEC Documents”) since September 3, 1998 through the date hereof under the Securities Act of 1933, as amended (the “Securities Act”), and the Securities ~~Act Rules, or the~~ Exchange Act ~~and~~ of 1934, as amended (the “Exchange ~~Act Rules, in each such case~~ Act”). Schedule 2.6 of the Merry Land Disclosure Letter contains a complete list of all Merry Land SEC Documents filed by Merry Land with the SEC since January 1, ~~2005 (collectively,~~ 2001 and ~~in each case including all annexes and schedules thereto and documents incorporated by reference therein, the “Parent SEC Documents”). As of their respective dates (~~on or ~~if subsequently amended or superseded by a filing~~ prior to the date of this Agreement~~, on~~ . All of the ~~date of such filing~~Merry Land SEC Documents (other than preliminary material), ~~the Parent SEC Documents~~ as of their respective filing dates, complied ~~as to form~~ in all material respects with ~~the~~ all applicable requirements of the Securities Act or and the Exchange ~~Act~~Act and, ~~as the case may be~~in each case, ~~and~~ the rules and regulations ~~of the SEC~~ promulgated thereunder applicable to such ~~Parent~~ Merry Land SEC Documents~~, and none~~ . None of the ~~Parent~~ Merry Land SEC Documents as at the time of ~~such dates~~ filing contained any untrue statement of a material fact or omitted to state a any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading~~. To Parent’s Knowledge~~, ~~as of~~ except to the extent such statements have been modified or superseded by later Merry Land SEC Documents filed and publicly available prior to the date ~~hereof, none~~ of this Agreement. The consolidated financial statements of Merry Land included in the ~~Parent~~ Merry Land SEC Documents ~~is the subject of ongoing SEC review. (b) Parent is in compliance with, and has complied,~~ complied as to form in all material respects with ~~(i) the~~ applicable ~~provisions of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002~~ accounting requirements and the related rules and regulations promulgated thereunder, and (ii) the applicable listing and corporate governance rules and regulations of NASDAQ. Parent has established and maintains disclosure controls and procedures and internal control over financial reporting (as such terms are defined in paragraphs (e) and (f), respectively, of Rule 13a-15 under the Exchange Act) as required by Rule 13a-15 under the Exchange Act. Parent’s disclosure controls and procedures are reasonably designed to ensure that all material information required to be disclosed by Parent in the reports that it files or furnishes under the Exchange Act is recorded, processed, summarized and reported within the time periods specified in the rules and forms of the SEC, and that all such material information is accumulated and communicated to the management of Parent as appropriate to allow timely decisions regarding required disclosure and to make the certifications required pursuant to Sections 302 and 906 of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act. The management of Parent has completed its assessment of the effectiveness of Parent’s internal control over financial reporting in compliance with the requirements of Section 404 of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act for the year ended December 31, 2006, and such assessment concluded that such controls were effective to provide reasonable assurance regarding the reliability of Parent’s financial reporting and the preparation of Parent’s financial statements for external purposes in accordance with GAAP. Parent has disclosed, based on its assessment of the effectiveness of Parent’s internal control over financial reporting in compliance with the requirements of Section 404 of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act for the year ended December 31, 2006, to Parent’s independent registered accounting firm and the audit committee of the Board of Directors of Parent (A) any significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect Parent’s ability to record, process, summarize and report financial information and (B) any fraud, whether or not material, of which there is Parent’s Knowledge that involves management or other employees who have a significant role in Parent’s internal control over financial reporting for the year ended December 31, 2006. Parent any has made available to the Company a summary of any such disclosures made by management to such accounting firm or audit committee for the year ended December 31, 2006. (c) The consolidated financial statements of Parent included in the Parent SEC Documents (the “Parent SEC Financial Statements”) (i) have been prepared in accordance with GAAP (except as may be otherwise indicated therein or in the notes thereto and except, in the case of unaudited consolidated quarterly statements, as permitted by Form 10-Q of the Exchange Act), applied on a consistent basis during the periods involved, (ii) complied in all material respects with published rules and regulations of the SEC with respect thereto, have been prepared in accordance with generally accepted accounting principles (“GAAP”) (except, in the case of unaudited statements, as permitted by the applicable rules and regulations of the SEC) applied on a consistent basis during the periods involved (~~iii~~except as may be indicated in the notes thereto) and fairly ~~present~~ presented, in ~~all material respects~~ accordance with the applicable requirements of GAAP and the applicable rules and regulations of the SEC, the consolidated financial position of ~~Parent~~ Merry Land and its consolidated ~~Parent Subsidiaries~~ subsidiaries, as of the ~~respective~~ dates thereof and the consolidated ~~statements~~ results of ~~income,~~ operations and cash flows ~~and changes in stockholders’ equity~~ for the ~~respective~~ periods then ended (subject, in the case of unaudited ~~quarterly~~ statements, to normal year-end audit ~~adjustments~~ adjustments). Except as set forth on Schedule 2.6, Merry Land has no Merry Land Subsidiaries which are not consolidated for accounting purposes. Except for liabilities and obligations set forth in the ~~absence~~ Merry Land SEC Documents on Schedule 2.6 to the Merry Land Disclosure Letter or liabilities or obligations incurred in the ordinary course of ~~footnotes). (d) As of March 31, 2007~~business after the most recent balance sheet contained in the Merry Land SEC Documents, neither ~~Parent~~ Merry Land nor any of the ~~Parent~~ Merry Land Subsidiaries ~~had~~ has any liabilities or obligations ~~that would have been~~ of any nature (whether accrued, absolute, contingent or otherwise) required by GAAP to be ~~reflected in the~~ set forth on a consolidated balance sheet of ~~Parent and the Parent Subsidiaries as of such date, except (i) for such liabilities and obligations reflected, reserved against~~ Merry Land or ~~otherwise disclosed~~ in the ~~consolidated balance sheet of Parent~~ notes thereto and the Parent Subsidiaries as of such date (including the notes thereto) that is included in the Parent SEC Financial Statements and (ii) for such liabilities and obligations as would not be reasonably expected to havewhich, individually or in the aggregate, would have a ~~Parent~~ Merry Land Material Adverse Effect (it is understood and agreed that the representations and warranties contained in this Section 5.5(d): (x) do not apply to matters described in any of Section 5.4, the other provisions of this Section 5.5, and Sections 5.7, 5.8, 5.9, 5.10, 5.11 and 5.17 (which are addressed exclusively in those Sections) and (y) shall not be deemed breached if such breach relates to a matter which is covered by a representation or warranty of Parent and Merger Sub contained in this Article V (other than this Section 5.5(d)) that contains a “Parent’s Knowledge” qualification)Effect. (e) Since December 31, 2006 to the date of this Agreement, (i) neither Parent nor any Parent Subsidiary nor, to Parent’s Knowledge, any director, officer, auditor, accountant or representative of Parent or any of the Parent Subsidiaries has received any written complaint, allegation, assertion or claim that Parent or any of the Parent Subsidiaries has engaged in improper or illegal accounting or auditing practices or maintains improper or inadequate internal accounting controls relating to Parent and the Parent Subsidiaries, taken as a whole, (ii) no attorney representing Parent or any Parent Subsidiary has made a report to Parent’s chief legal officer, chief executive officer or Board of Directors (or any committee thereof) pursuant to the SEC’s Standards of Professional Conduct for Attorneys (17 CFR Part 205), and (iii) Parent has disclosed to its outside auditors any fraud, whether or not material, of which there is Parent’s Knowledge that involves management or other employees who have a significant role in Parent’s internal control over financial reporting.

Appears in 1 contract

Sources: Merger Agreement (Merry Land Properties Inc)

SEC Documents; Financial Statements; Undisclosed Liabilities. ~~(a) Parent~~ Crown Partnership is not required by any Law to file any reports, schedules, forms, statements or other documents with the SEC and has made no such filings. Crown has timely filed all reports, schedules, ~~forms~~ forms, statements, certifications and ~~registration statements with the SEC~~ other documents required to be filed ~~by it pursuant to~~ in accordance with the rules and requirements of the SEC since December 31, 1996 through the date hereof (collectively, including all exhibits thereto and any registration statement filed since such date, the "Crown SEC Documents"). All of the Crown SEC Documents (other than preliminary material), as of their respective filing dates, complied in all material respects with all applicable requirements of the Securities Act and the Securities ~~Act Rules, or the~~ Exchange Act ~~and~~ of 1934, as amended (the "Exchange ~~Act Rules~~Act"), and, in each ~~such case since January 1~~case, 2005 (collectively, and in each case including all annexes and schedules thereto and documents incorporated by reference therein, the “Parent SEC Documents”). As of their respective dates (or if subsequently amended or superseded by a filing prior to the date of this Agreement, on the date of such filing), the Parent SEC Documents complied as to form in all material respects with the requirements of the Securities Act or the Exchange Act, as the case may be, and the rules and regulations ~~of the SEC~~ promulgated thereunder applicable to such ~~Parent~~ Crown SEC Documents~~, and none~~ . None of the ~~Parent~~ Crown SEC Documents as at the time of ~~such dates contained~~ filing contained, nor will any report, schedule, form, statement or other document filed by Crown after the date hereof and prior to the Effective Time contain, any untrue statement of a material fact or omitted to state a any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading. ~~To Parent’s Knowledge~~The consolidated financial statements of Crown included in the Crown SEC Documents complied, or will comply, as ~~of the date hereof, none of the Parent SEC Documents is the subject of ongoing SEC review. (b) Parent is in compliance with, and has complied,~~ to form in all material respects with ~~(i) the~~ applicable ~~provisions of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002~~ accounting requirements and the related rules and regulations promulgated thereunder, and (ii) the applicable listing and corporate governance rules and regulations of NASDAQ. Parent has established and maintains disclosure controls and procedures and internal control over financial reporting (as such terms are defined in paragraphs (e) and (f), respectively, of Rule 13a-15 under the Exchange Act) as required by Rule 13a-15 under the Exchange Act. Parent’s disclosure controls and procedures are reasonably designed to ensure that all material information required to be disclosed by Parent in the reports that it files or furnishes under the Exchange Act is recorded, processed, summarized and reported within the time periods specified in the rules and forms of the SEC, and that all such material information is accumulated and communicated to the management of Parent as appropriate to allow timely decisions regarding required disclosure and to make the certifications required pursuant to Sections 302 and 906 of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act. The management of Parent has completed its assessment of the effectiveness of Parent’s internal control over financial reporting in compliance with the requirements of Section 404 of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act for the year ended December 31, 2006, and such assessment concluded that such controls were effective to provide reasonable assurance regarding the reliability of Parent’s financial reporting and the preparation of Parent’s financial statements for external purposes in accordance with GAAP. Parent has disclosed, based on its assessment of the effectiveness of Parent’s internal control over financial reporting in compliance with the requirements of Section 404 of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act for the year ended December 31, 2006, to Parent’s independent registered accounting firm and the audit committee of the Board of Directors of Parent (A) any significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect Parent’s ability to record, process, summarize and report financial information and (B) any fraud, whether or not material, of which there is Parent’s Knowledge that involves management or other employees who have a significant role in Parent’s internal control over financial reporting for the year ended December 31, 2006. Parent any has made available to the Company a summary of any such disclosures made by management to such accounting firm or audit committee for the year ended December 31, 2006. (c) The consolidated financial statements of Parent included in the Parent SEC Documents (the “Parent SEC Financial Statements”) (i) have been prepared in accordance with GAAP (except as may be otherwise indicated therein or in the notes thereto and except, in the case of unaudited consolidated quarterly statements, as permitted by Form 10-Q of the Exchange Act), applied on a consistent basis during the periods involved, (ii) complied in all material respects with published rules and regulations of the SEC with respect thereto, ~~and~~ have been or will be prepared in accordance with generally accepted accounting principles (~~iii~~"GAAP") fairly present in all material respects the consolidated financial position of Parent and its consolidated Parent Subsidiaries as of the respective dates thereof and the consolidated statements of income, cash flows and changes in stockholders’ equity for the respective periods then ended (~~subject~~except, in the case of unaudited ~~quarterly~~ statements, ~~to normal year-end audit adjustments~~ as permitted by the applicable rules and regulations of the SEC) applied on a consistent basis during the periods involved (except as may be indicated in the notes thereto) and fairly presented, or will fairly present, in all material respects in accordance with the applicable requirements of GAAP and the ~~absence~~ applicable rules and regulations of ~~footnotes~~the SEC, the consolidated financial position of Crown and its Subsidiaries taken as a whole, as of the dates thereof and the consolidated results of operations and cash flows for the periods then ended (except, in the case of unaudited statements, as permitted by Form 10-Q under the Exchange Act)~~. (d~~. Except as set forth in Schedule 2.6(a) ~~As of March 31~~to the Crown Disclosure Letter, ~~2007~~Crown has no Subsidiaries which are not consolidated for accounting purposes. Except for liabilities and obligations set forth in the Crown SEC Documents or in Schedule 2.6(b) to the Crown Disclosure Letter, neither ~~Parent~~ Crown nor any ~~of the Parent Subsidiaries had~~ Crown Subsidiary has any liabilities or obligations ~~that would have been~~ of any nature (whether accrued, absolute, contingent or otherwise) required by GAAP to be ~~reflected in the~~ set forth on a consolidated balance sheet of ~~Parent and the Parent Subsidiaries as of such date, except (i) for such liabilities and obligations reflected, reserved against~~ Crown or ~~otherwise disclosed~~ in the ~~consolidated balance sheet of Parent~~ notes thereto and the Parent Subsidiaries as of such date (including the notes thereto) that is included in the Parent SEC Financial Statements and (ii) for such liabilities and obligations as would not be reasonably expected to havewhich, individually or in the aggregate, would reasonably be expected to have a ~~Parent~~ Crown Material Adverse Effect (it is understood and agreed that the representations and warranties contained in this Section 5.5(d): (x) do not apply to matters described in any of Section 5.4, the other provisions of this Section 5.5, and Sections 5.7, 5.8, 5.9, 5.10, 5.11 and 5.17 (which are addressed exclusively in those Sections) and (y) shall not be deemed breached if such breach relates to a matter which is covered by a representation or warranty of Parent and Merger Sub contained in this Article V (other than this Section 5.5(d)) that contains a “Parent’s Knowledge” qualification)Effect. (e) Since December 31, 2006 to the date of this Agreement, (i) neither Parent nor any Parent Subsidiary nor, to Parent’s Knowledge, any director, officer, auditor, accountant or representative of Parent or any of the Parent Subsidiaries has received any written complaint, allegation, assertion or claim that Parent or any of the Parent Subsidiaries has engaged in improper or illegal accounting or auditing practices or maintains improper or inadequate internal accounting controls relating to Parent and the Parent Subsidiaries, taken as a whole, (ii) no attorney representing Parent or any Parent Subsidiary has made a report to Parent’s chief legal officer, chief executive officer or Board of Directors (or any committee thereof) pursuant to the SEC’s Standards of Professional Conduct for Attorneys (17 CFR Part 205), and (iii) Parent has disclosed to its outside auditors any fraud, whether or not material, of which there is Parent’s Knowledge that involves management or other employees who have a significant role in Parent’s internal control over financial reporting.

Appears in 1 contract

Sources: Merger Agreement (Crown American Realty Trust)

SEC Documents; Financial Statements; Undisclosed Liabilities. (a) ~~Parent~~ Since January 1, 2018, the Company has timely filed or furnished all ~~reports, schedules, forms and registration statements with~~ the SEC Documents required to be filed or furnished by it with the SEC pursuant to ~~the Securities Act and the Securities Act Rules,~~ Section 13(a) or ~~the~~ 15(d) of Exchange Act and the Exchange Act Rules, in each such case since January 1, 2005 (collectively, and in each case including all annexes and schedules thereto and documents incorporated by reference therein, the “Parent SEC Documents”)Act. As of their respective dates (or if ~~subsequently~~ amended or ~~superseded by a filing prior to~~ supplemented, as of the date of ~~this Agreement~~such amendment or supplement, or, in the case of an SEC Document that is a registration statement filed pursuant to the Securities Act or a proxy statement filed pursuant to the Exchange Act, on the date of effectiveness of such ~~filing~~SEC Document or date of the applicable meeting, respectively), the ~~Parent~~ SEC Documents complied ~~as to form~~ in all material respects with the applicable requirements of the Securities ~~Act or~~ Act, the Exchange ~~Act~~Act and the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002, as ~~the case may be~~amended (and in each case, ~~and~~ the rules and regulations of the SEC promulgated ~~thereunder applicable to~~ thereunder), in each case as in effect at such ~~Parent~~ time. None of the SEC Documents, ~~and none~~ at the time they were filed or furnished with the SEC (or, if amended or supplemented, the date of the ~~Parent SEC Documents as~~ filing of such ~~dates~~ amendment or supplement, with respect to the disclosures that were so amended or supplemented or, in the case of an SEC Document that is a registration statement filed pursuant to the Securities Act or a proxy statement filed pursuant to the Exchange Act, on the date of effectiveness of such SEC Document or date of the applicable meeting, respectively), contained any untrue statement of a material fact or omitted 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 were made, not misleading~~. To Parent’s Knowledge, as of the date hereof, none of the Parent SEC Documents is the subject of ongoing SEC review~~. (b) ~~Parent is in compliance with~~The Company has established and maintains, and at all times since January 1, 2018 has ~~complied~~maintained, (i) systems of “internal control over financial reporting” (as defined in Rule 13a-15(f) of the Exchange Act) that comply with the requirements of the Exchange Act in all material respects and have been designed by, or under the supervision of, its principal executive and principal financial officers, or persons performing similar functions, sufficient to provide reasonable assurance that (A) transactions are executed in accordance with management’s general or specific authorizations; (iB) transactions are recorded as necessary to permit preparation of financial statements in conformity with generally accepted accounting principles and to maintain asset accountability; (C) access to assets is permitted only in accordance with management’s general or specific authorization; and (D) the ~~applicable provisions of~~ recorded accountability for assets is compared with the ~~▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002~~ existing assets at reasonable intervals and ~~the related rules and regulations promulgated thereunder,~~ appropriate action is taken with respect to any differences; and (ii) ~~the applicable listing and corporate governance rules and regulations~~ a system of ~~NASDAQ. Parent has established and maintains~~ “disclosure controls and ~~procedures and internal control over financial reporting~~ procedures” (as ~~such terms are~~ defined in ~~paragraphs (e~~Rule 13a-15(e) ~~and (f), respectively,~~ of ~~Rule 13a-15 under~~ the Exchange Act) ~~as required by Rule 13a-15 under the Exchange Act. Parent’s disclosure controls and procedures are reasonably~~ that is designed to ensure that ~~all material~~ information required to be disclosed by ~~Parent~~ the Company in ~~the~~ reports that it files ~~or furnishes under~~ with the ~~Exchange Act is recorded, processed, summarized and reported within~~ SEC pursuant to the ~~time periods specified in the~~ SEC’s rules and forms ~~of the SEC~~is recorded and reported on a timely basis in all material respects, including controls and procedures designed to ensure that ~~all~~ such ~~material~~ information is accumulated and communicated to the Company’s management ~~of Parent~~ as reasonably appropriate to allow timely decisions regarding required disclosure. The Company’s disclosure controls and ~~to make the certifications required pursuant to Sections 302 and 906~~ procedures were effective as of the ~~▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act. The management of Parent has completed its assessment of~~ times indicated in the ~~effectiveness of Parent~~SEC Documents, and the Company’s internal control over financial reporting ~~in compliance with the requirements of Section 404~~ was effective as of the ~~▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act for~~ times indicated in the ~~year ended December 31~~SEC Documents and, ~~2006~~at such times, ~~and such assessment concluded that such controls were effective to provide reasonable assurance regarding~~ the ~~reliability~~ Company was not aware of ~~Parent’s financial reporting and the preparation of Parent’s financial statements for external purposes~~ any material weaknesses in ~~accordance with GAAP. Parent has disclosed, based on~~ its ~~assessment of the effectiveness of Parent’s~~ internal control over financial ~~reporting in compliance with the requirements of Section 404 of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act for the year ended December 31~~reporting. Since January 1, ~~2006~~2018, ~~to Parent’s independent registered accounting firm and the audit committee of the Board of Directors of Parent (A)~~ there has not been any significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect Parent’s ability to record, process, summarize and report financial information and (B) any fraudFraud, whether or not material, ~~of which there is Parent’s Knowledge~~ that involves management or other employees of the Company or any of its Subsidiaries who have a significant role in ~~Parent~~the Company’s internal ~~control~~ controls over financial reporting for the year ended December 31, 2006. Parent any has made available to the Company a summary of any such disclosures made by management to such accounting firm or audit committee for the year ended December 31, 2006reporting. (c) ~~The consolidated~~ As of their respective filing dates, the financial statements of ~~Parent~~ the Company included in the ~~Parent~~ SEC Documents (the “~~Parent SEC~~ Company Financial Statements”) ~~(i) have been prepared~~ complied as to form in ~~accordance~~ all material respects with ~~GAAP~~ applicable accounting requirements and the published rules and regulations of the SEC with respect thereto as in effect as of the time of filing (except as may be ~~otherwise~~ indicated ~~therein or~~ in the notes thereto ~~and except~~or, in the case of the unaudited ~~consolidated quarterly~~ statements, as permitted by Form 10-Q of promulgated by the ~~Exchange Act~~SEC). Such financial statements have been prepared in all material respects in accordance with United States generally accepted accounting principles (“GAAP”), ~~applied on a consistent basis~~ consistently applied, during the periods ~~involved~~involved (except (i) as may be otherwise indicated in such financial statements or the notes thereto, (ii) ~~complied~~ in ~~all material respects with published~~ the case of unaudited interim statements, to the extent they may exclude footnotes or may be condensed or summary statements or (iii) as otherwise permitted by Regulation S-X and the other rules and regulations of the ~~SEC with respect thereto,~~ SEC) and ~~(iii)~~ fairly present in all material respects in accordance with GAAP the consolidated financial position of ~~Parent~~ the Company and its ~~consolidated Parent~~ Subsidiaries as of the ~~respective~~ dates thereof and the consolidated ~~statements~~ results of ~~income,~~ their operations and cash flows ~~and changes in stockholders’ equity~~ for the ~~respective~~ periods ~~then ended~~ shown (subject, in the case of unaudited quarterly financial statements, to normal year-end ~~audit adjustments and the absence of footnotes~~adjustments). (d) ~~As of March 31, 2007, neither Parent~~ Neither the Company nor any of ~~the Parent~~ its Subsidiaries ~~had~~ has any liabilities of any nature (whether accrued, absolute, contingent or ~~obligations that would have been required by GAAP to be~~ otherwise), except liabilities (i) reflected or reserved against in the consolidated balance sheet ~~of Parent and the Parent Subsidiaries as of such date, except~~ (~~i) for such liabilities and obligations reflected, reserved against~~ or ~~otherwise disclosed in the consolidated balance sheet of Parent and the Parent Subsidiaries as of such date (including~~ the notes thereto) ~~that is~~ of the Company and its Subsidiaries included in the ~~Parent SEC Financial Statements and~~ Company’s Quarterly Report on Form 10-Q for the quarter ended March 31, 2020 (the “Balance Sheet Date”), (ii) incurred after the Balance Sheet Date in the ordinary course of the Company’s business, (iii) for ~~such liabilities~~ the performance of obligations pursuant to the terms of the contracts to which the Company or any of its Subsidiaries are party and ~~obligations~~ compliance with permits, licenses, consents and authorizations of Governmental Authorities to which the Company or any of its Subsidiaries are subject, in each case in the ordinary course of business, (iv) as expressly contemplated by this Agreement or otherwise incurred in connection with the Transactions, (v) that are Permitted Liens or (vi) that have not had, and would not reasonably be ~~reasonably~~ expected to have, ~~individually or in the aggregate,~~ a ~~Parent~~ Material Adverse Effect (it is understood and agreed that the representations and warranties contained in this Section 5.5(d): (x) do not apply to matters described in any of Section 5.4, the other provisions of this Section 5.5, and Sections 5.7, 5.8, 5.9, 5.10, 5.11 and 5.17 (which are addressed exclusively in those Sections) and (y) shall not be deemed breached if such breach relates to a matter which is covered by a representation or warranty of Parent and Merger Sub contained in this Article V (other than this Section 5.5(d)) that contains a “Parent’s Knowledge” qualification)Effect. (e) Since December 31, 2006 to the date of this Agreement, (i) neither Parent nor any Parent Subsidiary nor, to Parent’s Knowledge, any director, officer, auditor, accountant or representative of Parent or any of the Parent Subsidiaries has received any written complaint, allegation, assertion or claim that Parent or any of the Parent Subsidiaries has engaged in improper or illegal accounting or auditing practices or maintains improper or inadequate internal accounting controls relating to Parent and the Parent Subsidiaries, taken as a whole, (ii) no attorney representing Parent or any Parent Subsidiary has made a report to Parent’s chief legal officer, chief executive officer or Board of Directors (or any committee thereof) pursuant to the SEC’s Standards of Professional Conduct for Attorneys (17 CFR Part 205), and (iii) Parent has disclosed to its outside auditors any fraud, whether or not material, of which there is Parent’s Knowledge that involves management or other employees who have a significant role in Parent’s internal control over financial reporting.

Appears in 1 contract

Sources: Investment Agreement (Knoll Inc)

Common use of SEC Documents; Financial Statements; Undisclosed Liabilities Clause in Contracts