SEC Reports. (a) The Company has filed all required forms, reports and documents with the SEC since December 31, 1995 (collectively, the "SEC Reports"), except that the Company will file a Notification of Late Filing on Form 126-25 notifying the SEC that its Form 10-K for its 1999 fiscal year could not be filed within the prescribed time period. Each of the SEC Reports has complied in all material respects with all applicable requirements of the Securities Act and the Exchange Act, each as in effect on the dates so filed. None of such forms, reports or documents, including, without limitation, any financial statements or schedules included or incorporated by reference therein, contained, when filed, any untrue statement of a material fact or omitted to state a material fact required to be stated or incorporated by reference 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 heretofore made available or promptly will make available to the Purchaser, a complete and correct copy of any amendment to the SEC Reports. None of the Subsidiaries of the Company is required to file any reports, statements, forms or other documents with the SEC. (b) The SEC Reports contain audited consolidated balance sheets of the Company and its Subsidiaries as of December 31 in each of the years 1995 through 1998, and the related audited consolidated statements of income, statements of cash flow and changes in Shareholders' equity of the Company and its Subsidiaries for the fiscal years then ended, together with the respective reports thereon of KPMG LLP. These audited financial statements of the Company were included or incorporated by reference in the SEC Reports (collectively, including the footnotes thereto, the "SEC Financial Statements"), were prepared in accordance with GAAP (except as otherwise stated in the SEC Financial Statements or in the related reports of the Company's independent accountants) and present fairly the consolidated financial position of the Company and its subsidiaries as at the dates thereof, and the results of operations, changes in financial position and statements of Shareholders' equity of the Company and its Subsidiaries for the periods indicated. No event has occurred since the Balance Sheet Date that would require a restatement of the SEC Financial Statements under GAAP other than by reason of a change in GAAP. The SEC Financial Statements reflect, and on the Closing Date will reflect, the interest of the Company in the assets, liabilities and operations of all Subsidiaries of the Company. (c) Neither the Company nor any of its Subsidiaries has any material liability, obligation or commitment of any nature whatsoever (whether known or unknown due or to become due, accrued, fixed, contingent, liquidated, unliquidated or otherwise) other than liabilities, obligations or commitments (i) which are accrued or reserved against in the consolidated balance sheet of the Company and its consolidated subsidiaries as of December 31, 1999 included in the Audited Financial Statements or reflected in the notes thereto, (ii)(x) which arose in the ordinary course of business since such date and (y) which do not or would not individually or in the aggregate have a Material Adverse Effect, or (iii) which are of the type that would not be required to be reflected on a consolidated balance sheet of the Company and its Subsidiaries or in the notes thereto if such balance sheet were prepared in accordance with GAAP as of the date thereof or as of the Closing Date, as the case may be. (d) Except as set forth on Schedule 5.25(d), since the date of the Company's 1999 Proxy Statement to the date hereof, the Company has not entered into or otherwise become obligated with respect to any transactions which would require disclosure pursuant to Item 404 of Regulation S-K in accordance with Items 7(b) or (c) of Schedule 14A under the Exchange Act were a Company proxy statement to be distributed as of the date hereof.
Appears in 2 contracts
Sources: Securities Purchase Agreement (Thayer Blum Funding LLC), Securities Purchase Agreement (Eftc Corp/)
SEC Reports. Whether or not required by the rules and regulations of the SEC, so long as any Securities are outstanding, the Company (aand the Subsidiary Guarantors, if applicable) The Company has filed will furnish to the Trustee and to the Holders of Securities (i) all quarterly and annual financial information that would be required forms, reports and documents to be contained in a filing with the SEC since December 31, 1995 (collectively, the "SEC Reports"), except that the Company will file a Notification of Late Filing on Form 126Forms 10-25 notifying the SEC that its Form Q and 10-K for its 1999 fiscal year could not be filed within if the prescribed time period. Each of the SEC Reports has complied in all material respects with all applicable requirements of the Securities Act and the Exchange Act, each as in effect on the dates so filed. None of Company were required to file such forms, reports or documents, including, without limitation, any including a "Management's Discussion and Analysis of Financial Condition and Results of Operations" that describes the financial statements or schedules included or incorporated by reference therein, contained, when filed, any untrue statement condition and results of a material fact or omitted to state a material fact required to be stated or incorporated by reference 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 heretofore made available or promptly will make available to the Purchaser, a complete and correct copy of any amendment to the SEC Reports. None of the Subsidiaries of the Company is required to file any reports, statements, forms or other documents with the SEC.
(b) The SEC Reports contain audited consolidated balance sheets operations of the Company and its Subsidiaries as of December 31 on a consolidated basis and, with respect to the annual information only, a report thereon by the Company's certified independent accountants and (ii) all reports that would be required to be filed with the SEC on Form 8-K if the Company (and the Subsidiary Guarantors, if applicable) were required to file such reports, in each case within the time periods specified therein. In addition, whether or not required by the rules and regulations of the years 1995 through 1998SEC, the Company will file a copy of all such information and reports, and any other information required by Section 13 or 15(d) of the related audited consolidated Exchange Act, with the SEC for public availability (unless the SEC will not accept such a filing) and make such information available to securities analysts and prospective investors upon request. If the Company has designated any of its Subsidiaries to be Unrestricted Subsidiaries that, alone or taken together, represent 10% or more of the Consolidated Cash Flow of the Company for the most recent consecutive four-quarter period, then the quarterly and annual financial information required by the preceding paragraph shall include a reasonably detailed presentation, either on the face of the financial statements or in the footnotes to the financial statements or in the "Management's Discussion and Analysis of incomeFinancial Condition and Results of Operations" of the financial condition and results of operations of the Company and its Restricted Subsidiaries. Concurrently with the delivery of the reports required to be delivered pursuant to the preceding paragraph, the Company shall deliver to the Trustee and to each Holder annual and quarterly financial statements with appropriate footnotes of cash flow the Company and changes its Restricted Subsidiaries, all prepared and presented in Shareholders' equity a manner substantially consistent with those of the Company and its Subsidiaries for the fiscal years then ended, together with the respective reports thereon of KPMG LLP. These audited financial statements of the Company were included or incorporated by reference in the SEC Reports (collectively, including the footnotes thereto, the "SEC Financial Statements"), were prepared in accordance with GAAP (except as otherwise stated in the SEC Financial Statements or in the related reports of the Company's independent accountants) and present fairly the consolidated financial position of the Company and its subsidiaries as at the dates thereof, and the results of operations, changes in financial position and statements of Shareholders' equity of the Company and its Subsidiaries for the periods indicated. No event has occurred since the Balance Sheet Date that would require a restatement of the SEC Financial Statements under GAAP other than by reason of a change in GAAP. The SEC Financial Statements reflect, and on the Closing Date will reflect, the interest of the Company in the assets, liabilities and operations of all Subsidiaries of the Company.
(c) Neither the Company nor any of its Subsidiaries has any material liability, obligation or commitment of any nature whatsoever (whether known or unknown due or to become due, accrued, fixed, contingent, liquidated, unliquidated or otherwise) other than liabilities, obligations or commitments (i) which are accrued or reserved against in the consolidated balance sheet of the Company and its consolidated subsidiaries as of December 31, 1999 included in the Audited Financial Statements or reflected in the notes thereto, (ii)(x) which arose in the ordinary course of business since such date and (y) which do not or would not individually or in the aggregate have a Material Adverse Effect, or (iii) which are of the type that would not be required to be reflected on a consolidated balance sheet of basis required by the Company and its Subsidiaries or in the notes thereto if such balance sheet were prepared in accordance with GAAP as of the date thereof or as of the Closing Date, as the case may bepreceding paragraph.
(d) Except as set forth on Schedule 5.25(d), since the date of the Company's 1999 Proxy Statement to the date hereof, the Company has not entered into or otherwise become obligated with respect to any transactions which would require disclosure pursuant to Item 404 of Regulation S-K in accordance with Items 7(b) or (c) of Schedule 14A under the Exchange Act were a Company proxy statement to be distributed as of the date hereof.
Appears in 2 contracts
Sources: Indenture (Portola Packaging, Inc. Mexico, S.A. De C.V.), Indenture (Portola Packaging Inc)
SEC Reports. (a) The Company has filed all reports required formsto be filed by it under the Exchange Act, including pursuant to Section 13(a) or 15(d) thereof, for the twenty-four (24) months preceding the date hereof on a timely basis or has received a valid extension of such time of filing and has filed any such SEC Reports prior to the expiration of any such extension and has filed all reports required to be filed by it under the Exchange Act, including pursuant to Section 13(a) or 15(d) thereof, for the twenty-four months preceding the date hereof. Such reports required to be filed by the Company under the Exchange Act, including pursuant to Section 13(a) or 15(d) thereof, together with any materials filed or furnished by the Company under the Exchange Act, whether or not any such reports were required being collectively referred to herein as the “SEC Reports” and, together with this Agreement and documents with the SEC since December 31, 1995 (collectivelySchedules to this Agreement, the "SEC Reports")“Disclosure Materials”. As of their respective dates, except that the Company will file a Notification of Late Filing on Form 126-25 notifying the SEC that its Form 10-K for its 1999 fiscal year could not be filed within the prescribed time period. Each of the SEC Reports has filed by the Company complied in all material respects with all applicable the requirements of the Securities Act and the Exchange ActAct and the rules and regulations of the SEC promulgated thereunder, each as in effect on and none of the dates so filed. None of such forms, reports or documents, including, without limitation, any financial statements or schedules included or incorporated by reference therein, containedSEC Reports, when filedfiled by the Company, contained any untrue statement of a material fact or omitted to state a material fact required to be stated or incorporated by reference therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. The Company has heretofore made available or promptly will make available to the Purchaser, a complete and correct copy of any amendment to the SEC Reports. None of the Subsidiaries of the Company is required to file any reports, statements, forms or other documents with the SEC.
(b) The SEC Reports contain audited consolidated balance sheets of the Company and its Subsidiaries as of December 31 in each of the years 1995 through 1998, and the related audited consolidated statements of income, statements of cash flow and changes in Shareholders' equity of the Company and its Subsidiaries for the fiscal years then ended, together with the respective reports thereon of KPMG LLP. These audited financial statements of the Company were included or incorporated by reference in the SEC Reports (collectively, including comply in all material respects with applicable accounting requirements and the footnotes thereto, rules and regulations of the "SEC Financial Statements"), were with respect thereto as in effect at the time of filing. Such financial statements have been prepared in accordance in all material respects with GAAP United States generally accepted accounting principles applied on a consistent basis during the periods involved (“GAAP”), except as may be otherwise stated specified in such financial statements, the SEC Financial Statements notes thereto and except that unaudited financial statements may not contain all footnotes required by GAAP or may be condensed or summary statements, and fairly present in the related reports of the Company's independent accountants) and present fairly all material respects the consolidated financial position of the Company and its subsidiaries consolidated Subsidiaries as at of and for the dates thereof, thereof and the results of operationsoperations and cash flows for the periods then ended, changes subject, in financial position and statements the case of Shareholders' equity unaudited statements, to normal, year-end audit adjustments. All material agreements to which the Company or any Subsidiary is a party or to which the property or assets of the Company and its Subsidiaries for the periods indicated. No event has occurred since the Balance Sheet Date that would require a restatement or any Subsidiary are subject are included as part of or identified in the SEC Financial Statements under GAAP other than by reason of a change in GAAP. The SEC Financial Statements reflectReports, and on to the Closing Date will reflect, the interest of the Company in the assets, liabilities and operations of all Subsidiaries of the Company.
(c) Neither the Company nor any of its Subsidiaries has any material liability, obligation or commitment of any nature whatsoever (whether known or unknown due or to become due, accrued, fixed, contingent, liquidated, unliquidated or otherwise) other than liabilities, obligations or commitments (i) which extent such agreements are accrued or reserved against in the consolidated balance sheet of the Company and its consolidated subsidiaries as of December 31, 1999 included in the Audited Financial Statements or reflected in the notes thereto, (ii)(x) which arose in the ordinary course of business since such date and (y) which do not or would not individually or in the aggregate have a Material Adverse Effect, or (iii) which are of the type that would not be required to be reflected on a consolidated balance sheet included or identified pursuant to the rules and regulations of the Company and its Subsidiaries or in the notes thereto if such balance sheet were prepared in accordance with GAAP as of the date thereof or as of the Closing Date, as the case may beSEC.
(d) Except as set forth on Schedule 5.25(d), since the date of the Company's 1999 Proxy Statement to the date hereof, the Company has not entered into or otherwise become obligated with respect to any transactions which would require disclosure pursuant to Item 404 of Regulation S-K in accordance with Items 7(b) or (c) of Schedule 14A under the Exchange Act were a Company proxy statement to be distributed as of the date hereof.
Appears in 2 contracts
Sources: Securities Purchase Agreement (CareDx, Inc.), Securities Purchase Agreement (CareDx, Inc.)
SEC Reports. (aNotwithstanding that the Company may not be required to be or remain subject to the reporting requirements of Section 13(a) The Company has filed all required formsor 15(d) of the Exchange Act, reports and documents with the SEC since December 31, 1995 (collectively, the "SEC Reports"), except that the Company will file a Notification of Late Filing on Form 126-25 notifying with the SEC that its Form 10-K for its 1999 fiscal year could (unless such filing is not permitted under the Exchange Act or by the SEC, in which case the Company shall make available the annual reports, documents, information and other reports described in this Section 405 to the Trustee and the Holders, in each case, within 5 days after the time the Company would otherwise be filed within the prescribed time period. Each of required to file such information with the SEC Reports has complied in all material respects with all applicable if it were subject to the reporting requirements of the Securities Act and Section 13(a) or 15(d) of the Exchange Act), each so long as in effect on the dates so filed. None of such formsNotes are Outstanding, reports or the annual reports, documents, including, without limitation, any financial statements or schedules included or incorporated by reference therein, contained, when filed, any untrue statement of a material fact or omitted to state a material fact required to be stated or incorporated by reference 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 heretofore made available or promptly will make available to the Purchaser, a complete information and correct copy of any amendment to the SEC Reports. None of the Subsidiaries of other reports that the Company is required to file any reports, statements, forms or other documents with the SEC.
SEC pursuant to such Section 13(a) or 15(d) or would be so required to file if the Company were so subject. Notwithstanding the foregoing, if any audited or reviewed financial statements or information required to be included in any such filing or otherwise made available under this Section 405 are not reasonably available on a timely basis as a result of the Company’s accountants not being “independent” (as defined pursuant to the Exchange Act and the rules and regulations of the SEC thereunder), the Company may, in lieu of making such filing or otherwise making available such audited or reviewed financial statements or information, elect to make a filing on an alternative form or transmit or make available unaudited or unreviewed financial statements or information substantially similar to such required audited or reviewed financial statements or information; provided that (a) the Company shall in any event be required to make such filing or transmit or make available such audited or reviewed financial statements or information no later than the first anniversary of the date on which the same was otherwise required pursuant to the preceding provisions of this Section 405 (such initial date, the “Reporting Date”) and (b) if the Company makes such an election and such filing has not been made, or such documents, information and reports have not been transmitted or made available, as the case may be, within 90 days after such Reporting Date, liquidated damages will accrue on the Notes at a rate of 0.50% per annum from the date that is 90 days after such Reporting Date to the earlier of (x) the date on which such filing has been made, or such reports, documents and information have been transmitted or made available, as the case may be, and (y) the first anniversary of such Reporting Date (provided that not more than 0.50% per annum in liquidated damages shall be payable for any period regardless of the number of such elections by the Company). The SEC Reports contain audited consolidated balance sheets Company will be deemed to have satisfied the requirements of this Section 405 if any parent files reports, documents and information of the types otherwise so required to be filed, in each case within the applicable time periods; provided that if such parent shall not own, directly or indirectly, 100% of the Capital Stock of the Company or if such parent shall hold material assets or have material operations other than through the Company and its Subsidiaries as of December 31 in each the last day of the years 1995 through 1998relevant reporting period, such reports, documents and information shall be accompanied by consolidating information, which need not be audited or compliant with Regulation S-X under the Securities Act, that explains in reasonable detail (as determined in good faith by the Company, which determination shall be conclusive) the quantitative differences between the financial information relating to such parent and its Subsidiaries, on the one hand, and the related audited consolidated statements of income, statements of cash flow and changes in Shareholders' equity of information relating to the Company and its Subsidiaries for on a standalone basis, on the fiscal years then endedother hand. In addition, together with to the respective reports thereon of KPMG LLP. These audited financial statements of extent not satisfied by the foregoing, the Company were included or incorporated by reference will furnish to Holders thereof and prospective investors in the SEC Reports (collectivelysuch Notes, including the footnotes theretoupon their request, the "SEC Financial Statements"information required to be delivered pursuant to Rule 144A(d)(4) (as in effect on the Issue Date). In connection with this Section 405, were prepared in accordance with GAAP (except as otherwise stated in the SEC Financial Statements or in the related reports of the Company's independent accountants) and present fairly the consolidated financial position of it is understood that the Company and its subsidiaries as at the dates thereof, and the results of operations, changes in financial position and statements of Shareholders' equity of the Company and its Subsidiaries for the periods indicated. No event has occurred since the Balance Sheet Date that would require a restatement of the SEC Financial Statements under GAAP other than by reason of a change in GAAP. The SEC Financial Statements reflect, and on the Closing Date will reflect, the interest of the Company in the assets, liabilities and operations of all Subsidiaries of the Company.
(c) Neither the Company nor any of its Subsidiaries has any material liability, obligation or commitment of any nature whatsoever (whether known or unknown due or to become due, accrued, fixed, contingent, liquidated, unliquidated or otherwise) other than liabilities, obligations or commitments (i) which are accrued or reserved against in the consolidated balance sheet of the Company and its consolidated subsidiaries as of December 31, 1999 included in the Audited Financial Statements or reflected in the notes thereto, (ii)(x) which arose in the ordinary course of business since such date and (y) which do not or would not individually or in the aggregate have a Material Adverse Effect, or (iii) which are of the type that would shall not be required to be reflected on a consolidated balance sheet (a) comply with Section 302, Section 404 and Section 906 of the Company and its Subsidiaries or in the notes thereto if such balance sheet were prepared in accordance with GAAP as Sarbanes Oxley Act of the date thereof or as of the Closing Date2002, as the case may be.
(d) Except as set forth on Schedule 5.25(d)amended, since the date of the Company's 1999 Proxy Statement to the date hereof, the Company has not entered into or otherwise become obligated with respect to any transactions which would require disclosure pursuant to Item 404 related items 307 and 308 of Regulation S-K in accordance with Items 7(b) under the Securities Act or (cb) comply with Articles 3-09, 3-10 and 3-16 of Schedule 14A Regulation S-X under the Exchange Act were a Company proxy statement Securities Act. Delivery of such reports, documents, and information described in this Section 405 to the Trustee shall be distributed for informational purposes only, and the Trustee’s receipt of them shall not constitute constructive notice of any information contained therein or determinable from information contained therein (including the Company’s compliance with any of its covenants under this Indenture as of to which the date hereofTrustee is entitled to rely exclusively on an Officer’s Certificate). It is understood that the Trustee shall have no responsibility to determine if such reports, documents, or information have been filed with the SEC, posted on any website or otherwise furnished to the Holders.
Appears in 2 contracts
Sources: Indenture (Frontdoor, Inc.), Indenture (Servicemaster Global Holdings Inc)
SEC Reports. (a) The Company has filed all required forms, reports and documents with the SEC since December 31, 1995 (collectively, the "SEC Reports"), except that the Company will file a Notification of Late Filing Partnership’s annual report on Form 126-25 notifying the SEC that its Form 10-K for its 1999 fiscal the year could not be ended September 30, 2004, and the quarterly and current reports on Form 10-Q and 8-K, if any, filed within by the prescribed partnership with the Securities and Exchange Commission (“SEC”) since September 30, 2004 (collectively, the “SEC Reports”) were timely filed with the SEC. Such documents, at the time period. Each of they were filed with the SEC Reports has SEC, complied in all material respects with all applicable the requirements of the Securities Exchange Act and the Exchange Act, each as in effect on the dates so filed. None of such forms, reports or documents, including, without limitation, any financial statements or schedules included or incorporated by reference therein, contained, when filed, any did not include an 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 therein, in light of the circumstances under which they were made, not misleading. The Company has heretofore In addition, each of the statements made available or promptly will make available to in such documents within the Purchasercoverage of Rule 175(b) of the rules and regulations under the Securities Act of 1933, as amended (the “Securities Act”), was made by the Partnership with a complete reasonable basis and correct copy of any amendment to in good faith. Other than the SEC Reports. None , none of the Subsidiaries Partnership Entities nor any of the Company their respective subsidiaries is required to file any reportsform, statements, forms report or other documents document with the SECSEC that has not been filed.
(b) The SEC Reports contain audited consolidated balance sheets draft of the Company Partnership’s annual report of Form 10-K for the year ended September 30, 2005, a copy of which has been delivered to the Buyers (the “2005 Form 10-K”), complies, and its Subsidiaries as the version thereof actually filed with the SEC shall comply, in all material respects with the requirements of December 31 the Exchange Act and does not and will not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they are made, not misleading. In addition, each of the years 1995 through 1998, statements made in the 2005 Form 10-K and the related audited consolidated statements version thereof actually filed with the SEC within the coverage of income, statements of cash flow and changes in Shareholders' equity Rule 175(b) of the Company rules and its Subsidiaries for regulations under the fiscal years then ended, together Securities Act was made by the Partnership with the respective reports thereon of KPMG LLP. These audited financial statements of the Company were included or incorporated by reference a reasonable basis and in the SEC Reports (collectively, including the footnotes thereto, the "SEC Financial Statements"), were prepared in accordance with GAAP (except as otherwise stated in the SEC Financial Statements or in the related reports of the Company's independent accountants) and present fairly the consolidated financial position of the Company and its subsidiaries as at the dates thereof, and the results of operations, changes in financial position and statements of Shareholders' equity of the Company and its Subsidiaries for the periods indicated. No event has occurred since the Balance Sheet Date that would require a restatement of the SEC Financial Statements under GAAP other than by reason of a change in GAAP. The SEC Financial Statements reflect, and on the Closing Date will reflect, the interest of the Company in the assets, liabilities and operations of all Subsidiaries of the Companygood faith.
(c) Neither the Company nor any of its Subsidiaries has any material liabilityThere are no agreements, obligation contracts, indentures, leases or commitment of any nature whatsoever (whether known or unknown due or to become due, accrued, fixed, contingent, liquidated, unliquidated or otherwise) other than liabilities, obligations or commitments (i) which instruments that are accrued or reserved against in the consolidated balance sheet of the Company and its consolidated subsidiaries as of December 31, 1999 included in the Audited Financial Statements or reflected in the notes thereto, (ii)(x) which arose in the ordinary course of business since such date and (y) which do not or would not individually or in the aggregate have a Material Adverse Effect, or (iii) which are of the type that would not be required to be reflected on a consolidated balance sheet described in the SEC Reports and the 2005 Form 10-K or to be filed as exhibits to the SEC Reports and the 2005 Form 10-K that are not and, with respect to the version of the Company and its Subsidiaries 2005 Form 10-K actually filed with the SEC will not be, described or in filed as required by the notes thereto if such balance sheet were prepared in accordance with GAAP as of the date thereof or as of the Closing Date, as the case may beExchange Act.
(d) Except as set forth on Schedule 5.25(d)Since September 30, since 2005, no transaction has occurred between or among the date Partnership GP, the Partnership Entities and any of their respective officers, directors, stockholders or Affiliates or, to the best knowledge of the Company's 1999 Proxy Statement Partnership GP, any Affiliate of any such officer, director or stockholder, that is required to be described in the date hereof, SEC Reports and the Company has not entered into or otherwise become obligated with respect to any transactions which would require disclosure pursuant to Item 404 of Regulation S2005 Form 10-K in accordance with Items 7(b) or (c) of Schedule 14A under the Exchange Act were a Company proxy statement to be distributed as of the date hereofthat is not so described.
Appears in 2 contracts
Sources: Unit Purchase Agreement (Kestrel Energy Partners LLC), Unit Purchase Agreement (Star Gas Partners Lp)
SEC Reports. (a) The Company has filed all required formsreports, reports registration ----------- statements, definitive proxy statements and documents with the SEC since December 31, 1995 other document and all amendments thereto and supplements thereof (collectively, the "SEC Reports"), except that the Company will file a Notification of Late Filing on Form 126-25 notifying the SEC that its Form 10-K for its 1999 fiscal year could not ) required to be filed within by it with the prescribed time period. Each Securities and Exchange Commission (the "Commission") since April 30, 1995, all of the SEC Reports has which have complied in all material respects with all applicable requirements of the Securities Act of 1933, as amended (the "Securities Act"), the Securities Exchange Act of 1934, as amended (the "Exchange Act") and the Exchange Actrules and regulations promulgated thereunder. As of the respective dates of filing in final or definitive form (or, each as in effect if amended or superseded by a subsequent filing, then on the dates so filed. None date of such formssubsequent filing), reports or documentsnone of the Company's SEC Reports, including, without limitation, any financial statements or schedules included or incorporated by reference therein, contained, when filed, contained any untrue statement of a material fact or omitted to state a material fact required to be stated or incorporated by reference therein or necessary in order to make the statements therein, in light of the circumstances under in which they were made, not misleading. The Company has heretofore made available or promptly will make available to the Purchaser, a complete and correct copy of any amendment to the SEC Reports. None of the Subsidiaries of the Company is required to file any reports, statements, forms or other documents with the SEC.
(b) The SEC Reports contain audited consolidated balance sheets of the Company and its Subsidiaries as of December 31 in each of the years 1995 through 1998, and (including the related audited consolidated statements of income, statements of cash flow and changes notes) in Shareholders' equity of the Company and its Subsidiaries for the fiscal years then ended, together with the respective reports thereon of KPMG LLP. These audited financial statements of the Company were included or incorporated by reference in the SEC Reports (collectively, including the footnotes thereto, the "SEC Financial Statements"), were prepared in accordance with GAAP (except as otherwise stated in the SEC Financial Statements or in the related reports of the Company's independent accountants) and SEC Reports fairly present fairly the consolidated financial position of the Company and its subsidiaries as at of the respective dates thereof, and the other related financial statements (including the related notes) included therein fairly presented the results of operations, operations and changes in financial position and statements of Shareholders' equity of the Company and its Subsidiaries for the periods indicated. No event has occurred since , except, in the Balance Sheet Date that would require a restatement case of the SEC Financial Statements under GAAP other than by reason interim financial statements, for year-end audit adjustments, consisting only of a change in GAAPnormal recurring accruals. The SEC Financial Statements reflect, and on financial statements (including the Closing Date will reflect, the interest of the Company in the assets, liabilities and operations of all Subsidiaries of the Company.
(crelated notes) Neither the Company nor any of its Subsidiaries has any material liability, obligation or commitment of any nature whatsoever (whether known or unknown due or to become due, accrued, fixed, contingent, liquidated, unliquidated or otherwise) other than liabilities, obligations or commitments (i) which are accrued or reserved against in the consolidated balance sheet of the Company and its consolidated subsidiaries as of December 31, 1999 included in the Audited Financial Statements or reflected in the notes thereto, (ii)(x) which arose in the ordinary course of business since such date and (y) which do not or would not individually or in the aggregate Company's SEC Reports have a Material Adverse Effect, or (iii) which are of the type that would not be required to be reflected on a consolidated balance sheet of the Company and its Subsidiaries or in the notes thereto if such balance sheet were been prepared in accordance with GAAP GAAP, except as otherwise noted therein or, in the case of unaudited financial statements, as permitted by the applicable rules and regulations of the date thereof or as of the Closing Date, as the case may beCommission.
(d) Except as set forth on Schedule 5.25(d), since the date of the Company's 1999 Proxy Statement to the date hereof, the Company has not entered into or otherwise become obligated with respect to any transactions which would require disclosure pursuant to Item 404 of Regulation S-K in accordance with Items 7(b) or (c) of Schedule 14A under the Exchange Act were a Company proxy statement to be distributed as of the date hereof.
Appears in 2 contracts
Sources: Subscription and Stock Purchase Agreement (Linkon Corp), Subscription and Stock Purchase Agreement (Linkon Corp)
SEC Reports. (a) The Company Parent has filed on a timely basis all required reports, registration statements, forms, reports schedules and other documents required to be filed by it with the SEC, the OTC BB and any other Governmental Entity for the period from January 1, 2010 to the date hereof. No Governmental Entity has initiated or has pending any Proceeding or investigation into the business, disclosures or operations of the Parent or any of its subsidiaries. There is no unresolved or threatened comment, exception or stop order by any Governmental Entity with respect to any filing by the Parent or any of its subsidiaries, relating to any examinations or inspections of the Parent or any of its subsidiaries. There have been no formal inquiries by, or disagreements or disputes with, any Governmental Entity with respect to the business, operations, policies or procedures of the Parent or any of its subsidiaries. Except to the extent available in full without redaction on the SEC’s web site through the Electronic Data Gathering, Analysis and Retrieval System (“▇▇▇▇▇”) two days prior to the date of this Agreement, the Parent has made available to the Company copies in the form filed with the SEC since December 31(including the full text of any document filed subject to a request for confidential treatment or as an exhibit to such filing) all of the following that have been filed with the SEC prior to the date hereof: (i) the Parent’s Annual Reports on Forms 10-K, 1995 (ii) the Parent’s Quarterly Reports on Forms 10-Q, (iii) all proxy and information statements relating to the Parent’s meetings of stockholders (whether annual or special) held, or by stockholder consents, (iv) the Parent’s Current Reports on Form 8-K, and (v) all other forms, reports, registration statements and other documents filed by the Parent with the SEC (the forms, reports, registration statements and other documents referred to in clauses (i), (ii), (iii), (iv) and (v) above, whether or not available through ▇▇▇▇▇, together with the exhibits filed or furnished therewith, are, collectively, the "SEC “Parent Reports",” and, to the extent available in full without redaction through ▇▇▇▇▇ at least two business days prior to the date of this Agreement, the “Filed Parent Reports”).
(b) No Parent Report or communication, except that at the Company will file a Notification time filed, furnished or communicated (and, in the case of Late Filing on Form 126-25 notifying the SEC that its Form 10-K for its 1999 fiscal year could not be filed within the prescribed time period. Each of the SEC Reports has complied in all material respects with all applicable requirements of the Securities Act registration statements and the Exchange Actproxy and/or information statements, each as in effect on the dates so filed. None of such formseffectiveness and the dates of the relevant meetings, reports or documentsrespectively), including, without limitation, any financial statements or schedules included or incorporated by reference therein, contained, when filed, contained any untrue statement of a material fact or omitted to state a any 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 in which they were made, not misleading. The Company has heretofore made available or promptly will make available As of their respective dates, all Parent Reports complied as to form in all material respects with the Purchaser, a complete and correct copy of any amendment to the SEC Reports. None requirements of the Subsidiaries of Securities Act or the Company is required to file any reports, statements, forms or other documents with the SEC.
(b) The SEC Reports contain audited consolidated balance sheets of the Company and its Subsidiaries as of December 31 in each of the years 1995 through 1998, and the related audited consolidated statements of income, statements of cash flow and changes in Shareholders' equity of the Company and its Subsidiaries for the fiscal years then ended, together with the respective reports thereon of KPMG LLP. These audited financial statements of the Company were included or incorporated by reference in the SEC Reports (collectively, including the footnotes thereto, the "SEC Financial Statements"), were prepared in accordance with GAAP (except as otherwise stated in the SEC Financial Statements or in the related reports of the Company's independent accountants) and present fairly the consolidated financial position of the Company and its subsidiaries as at the dates thereof, and the results of operations, changes in financial position and statements of Shareholders' equity of the Company and its Subsidiaries for the periods indicated. No event has occurred since the Balance Sheet Date that would require a restatement of the SEC Financial Statements under GAAP other than by reason of a change in GAAP. The SEC Financial Statements reflect, and on the Closing Date will reflect, the interest of the Company in the assets, liabilities and operations of all Subsidiaries of the Company.
(c) Neither the Company nor any of its Subsidiaries has any material liability, obligation or commitment of any nature whatsoever (whether known or unknown due or to become due, accrued, fixed, contingent, liquidated, unliquidated or otherwise) other than liabilities, obligations or commitments (i) which are accrued or reserved against in the consolidated balance sheet of the Company and its consolidated subsidiaries as of December 31, 1999 included in the Audited Financial Statements or reflected in the notes thereto, (ii)(x) which arose in the ordinary course of business since such date and (y) which do not or would not individually or in the aggregate have a Material Adverse Effect, or (iii) which are of the type that would not be required to be reflected on a consolidated balance sheet of the Company and its Subsidiaries or in the notes thereto if such balance sheet were prepared in accordance with GAAP as of the date thereof or as of the Closing DateExchange Act, as the case may be, and, to the extent then applicable, the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act, including in each case, the rules and regulations thereunder.
(dc) Except as set forth on Schedule 5.25(d)From January 1, since the date of the Company's 1999 Proxy Statement 2010 to the date hereof, the Company Parent has not entered into or otherwise become obligated been in compliance in all material respects with (i) the applicable rules and regulations of FINRA in respect to any transactions of which would require disclosure pursuant to Item 404 of Regulation S-K in accordance with Items 7(bthe Parent Common Stock is qualified for quotation and trading on the OTCBB, and (ii) or (c) of Schedule 14A under the Exchange Act were a Company proxy statement to be distributed as applicable provisions of the date hereof▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act. The Parent has made available to the Company true, correct and complete copies of and Section 3.6 of the Parent Disclosure Schedule lists (A) all correspondence between the Parent and the OTCBB since January 1, 2010, and (B) all correspondence between the Parent and FINRA since January 1, 2010.
Appears in 2 contracts
Sources: Asset Purchase Agreement (REGAL ONE Corp), Asset Purchase Agreement (REGAL ONE Corp)
SEC Reports. (a) The Company has filed all required reports, schedules, forms, reports statements and other documents required to be filed by it under the Act and the Securities Exchange Act of 1934, as amended (the “Exchange Act”) since November 14, 2007, including pursuant to Section 13(a), 13(c) or 15(d) thereof (the foregoing materials from and after November 14, 2007, including the exhibits thereto and documents with incorporated by reference therein, being collectively referred to herein as the SEC since December 31, 1995 (collectively, the "“SEC Reports"”) on a timely basis or has received a valid extension of such time of filing and has filed any such SEC Reports prior to the expiration of any such extension. As of the date of filing, in the case of SEC Reports filed pursuant to the Exchange Act (and to the extent such SEC Report was amended, then as of the date of filing of such amendment), except that and as of the Company will file a Notification date of Late Filing on Form 126-25 notifying effectiveness in the case of SEC that its Form 10-K for its 1999 fiscal year could not be Reports filed within pursuant to the prescribed time period. Each Act (and to the extent such SEC Report was amended, then as of the date of effectiveness of such amendment), the SEC Reports has complied in all material respects with all applicable the requirements of the Securities Act and the Exchange ActAct and the rules and regulations of the Securities and Exchange Commission (the “Commission”) promulgated thereunder, each as applicable, and none of the SEC Reports, as of the date of filing, in effect on the dates so filed. None case of SEC Reports filed pursuant to the Exchange Act (and to the extent such SEC Report was amended, then as to the date of filing of such formsamendment), reports or documentsand as of the date of effectiveness in the case of SEC Reports filed pursuant to the Act (and to the extent such SEC Report was amended, includingthen as of the date of effectiveness of such amendment), without limitation, any financial statements or schedules included or incorporated by reference therein, contained, when filed, contained any untrue statement of a material fact or omitted to state a material fact required to be stated or incorporated by reference therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. The Company has heretofore made available or promptly will make available to the Purchaser, a complete and correct copy of any amendment to the SEC Reports. None of the Subsidiaries of the Company is required to file any reports, statements, forms or other documents with the SEC.
(b) The SEC Reports contain audited consolidated balance sheets of the Company and its Subsidiaries as of December 31 in each of the years 1995 through 1998, and the related audited consolidated statements of income, statements of cash flow and changes in Shareholders' equity of the Company and its Subsidiaries for the fiscal years then ended, together with the respective reports thereon of KPMG LLP. These audited financial statements of the Company were included or incorporated by reference in the SEC Reports (collectively, including the footnotes thereto, the "SEC Financial Statements"), were prepared in accordance with GAAP (except as otherwise stated in the SEC Financial Statements or in the related reports of the Company's independent accountants) and present fairly the consolidated financial position of the Company and its subsidiaries as at the dates thereof, and the results of operations, changes in financial position and statements of Shareholders' equity of the Company and its Subsidiaries for the periods indicated. No event has occurred since the Balance Sheet Date that would require a restatement of the SEC Financial Statements under GAAP other than by reason of a change in GAAP. The SEC Financial Statements reflect, and on the Closing Date will reflect, the interest of the Company in the assets, liabilities and operations of all Subsidiaries of the Company.
(c) Neither the Company nor any of its Subsidiaries has any material liability, obligation or commitment of any nature whatsoever (whether known or unknown due or to become due, accrued, fixed, contingent, liquidated, unliquidated or otherwise) other than liabilities, obligations or commitments (i) which are accrued or reserved against in the consolidated balance sheet of the Company and its consolidated subsidiaries as of December 31, 1999 included in the Audited Financial Statements or reflected in the notes thereto, (ii)(x) which arose in the ordinary course of business since such date and (y) which do not or would not individually or in the aggregate have a Material Adverse Effect, or (iii) which are of the type that would not be required to be reflected on a consolidated balance sheet of the Company and its Subsidiaries or in the notes thereto if such balance sheet were prepared in accordance with GAAP as of the date thereof or as of the Closing Date, as the case may be.
(d) Except as set forth on Schedule 5.25(d), since the date of the Company's 1999 Proxy Statement to the date hereof, the Company has not entered into or otherwise become obligated with respect to any transactions which would require disclosure pursuant to Item 404 of Regulation S-K in accordance with Items 7(b) or (c) of Schedule 14A under the Exchange Act were a Company proxy statement to be distributed as of the date hereof.
Appears in 2 contracts
Sources: Securities Purchase Agreement (China Natural Gas, Inc.), Securities Purchase Agreement (China Natural Gas, Inc.)
SEC Reports. (a) The Company has filed all required reports, schedules, forms, reports statements and other documents required to be filed by it under the Securities Act and the Exchange Act, including pursuant to Section 13(a) or 15(d) thereof, for the one year preceding the date hereof (or such shorter period as the Company was required by law or regulation to file such material) (the foregoing materials, including the exhibits thereto and documents with incorporated by reference therein, being collectively referred to herein as the SEC since December 31, 1995 (collectively, the "“SEC Reports"”). As of their respective dates, except that the Company will file a Notification of Late Filing on Form 126-25 notifying the SEC that its Form 10-K for its 1999 fiscal year could not be filed within the prescribed time period. Each of the SEC Reports has (including the financial statements, exhibits and schedules thereto) complied in all material respects with all applicable the requirements of the Securities Act and the Exchange ActAct and the rules and regulations of the SEC promulgated thereunder, each as in effect applicable and did not at the time they were filed (or if amended or superseded by a filing prior to the date of this Agreement, then on the dates so filed. None date of such forms, reports or documents, including, without limitation, any financial statements or schedules included or incorporated by reference therein, contained, when filed, filing) 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 made the statements therein, in light of the circumstances under which they were made, not misleading. The Company has heretofore made available or promptly will make available to the Purchaser, a complete and correct copy of any amendment to the SEC Reports. None Each of the Subsidiaries of the Company is required to file any reportsfinancial statements (including, statements, forms or other documents with the SEC.
(b) The SEC Reports contain audited consolidated balance sheets of the Company and its Subsidiaries as of December 31 in each of the years 1995 through 1998case, and the any related audited consolidated statements of income, statements of cash flow and changes in Shareholders' equity of the Company and its Subsidiaries for the fiscal years then ended, together with the respective reports thereon of KPMG LLP. These audited financial statements of the Company were included or incorporated by reference notes thereto) contained in the SEC Reports (collectively, including the footnotes thereto, the "SEC Financial StatementsCompany Financials"), were including any SEC Reports filed after the date hereof until the Closing, as of their respective dates, (i) complied as to form in all material respects with the published rules and regulations of the SEC with respect thereto, (ii) was prepared in accordance with GAAP applied on a consistent basis throughout the periods involved (except as otherwise stated may be indicated in the SEC Financial Statements or notes thereto or, in the related reports case of unaudited interim financial statements, as may be permitted by the Company's independent accountantsSEC on Form 10-Q under the Exchange Act) and present (iii) fairly presented the consolidated financial position of the Company and its subsidiaries as at the respective dates thereof, thereof and the consolidated results of operations, changes in financial position its operations and statements of Shareholders' equity of the Company and its Subsidiaries cash flows for the periods indicated. No event has occurred since , except that the Balance Sheet Date that would require a restatement of the SEC Financial Statements under GAAP other than by reason of a change unaudited interim financial statements were or are subject to normal and recurring year-end adjustments which were not, or are not expected to be, material in GAAPamount. The SEC Financial Statements reflect, and on the Closing Date will reflect, the interest of the Company in the assets, liabilities and operations of all Subsidiaries of the Company.
(c) Neither the Company nor any of its Subsidiaries has any material liability, obligation or commitment of any nature whatsoever (whether known or unknown due or to become due, accrued, fixed, contingent, liquidated, unliquidated or otherwise) other than liabilities, obligations or commitments (i) which are accrued or reserved against in the consolidated balance sheet of the Company and its consolidated subsidiaries as of December 31September 30, 1999 included 2006 is hereinafter referred to as the "Company Balance Sheet." Except as disclosed in the Audited Financial Statements Company Financials, the Company does not have any liabilities (absolute, accrued, contingent or reflected otherwise) of a nature required to be disclosed on a balance sheet or in the related notes theretoto the consolidated financial statements prepared in accordance with GAAP which are, individually or in the aggregate, material to the business, results of operations or financial condition of the Company, except liabilities (ii)(xi) which arose provided for in the Company Balance Sheet, or (ii) incurred since the date of the Company Balance Sheet in the ordinary course of business since such date consistent with past practices and (y) which do not or would not individually or in the aggregate reasonably be expected to have a Material Adverse Effect, or (iii) which are of the type that would not be required to be reflected on a consolidated balance sheet of the Company and its Subsidiaries or in the notes thereto if such balance sheet were prepared in accordance with GAAP as of the date thereof or as of the Closing Date, as the case may be.
(d) Except as set forth on Schedule 5.25(d), since the date of the Company's 1999 Proxy Statement to the date hereof, the Company has not entered into or otherwise become obligated with respect to any transactions which would require disclosure pursuant to Item 404 of Regulation S-K in accordance with Items 7(b) or (c) of Schedule 14A under the Exchange Act were a Company proxy statement to be distributed as of the date hereof.
Appears in 2 contracts
Sources: Securities Purchase Agreement (Janel World Trade LTD), Securities Purchase Agreement (Janel World Trade LTD)
SEC Reports. (a) The Since January 1, 2010, the Company has filed or furnished (as applicable) all required forms, reports reports, schedules, statements and documents with the SEC since December 31that have been required to be so filed or furnished (as applicable) by it under applicable Laws prior to the date hereof, 1995 (collectivelyand, after the "SEC Reports")date of this Agreement and until the Effective Time, except that the Company will file a Notification of Late Filing on Form 126-25 notifying all forms, reports, schedules, statements and documents with the SEC that its Form 10-K for its 1999 fiscal year could not are required to be filed within by it under applicable Laws prior to such time (all such forms, reports and documents, together with any other forms, reports or other documents filed or furnished (as applicable) by the prescribed time periodCompany with the SEC at or prior to the Effective Time that are not required to be so filed or furnished, the “SEC Reports”). Each SEC Report complied, or will comply, as the case may be, as of the SEC Reports has complied its filing date, as to form in all material respects with all the applicable requirements of the Securities Act and or the Exchange Act, as the case may be, and with all applicable provisions of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act, each as in effect on the dates so date such SEC Report was, or will be, filed. None As of its filing date (or, if amended or superseded by a filing prior to the date of this Agreement, on the date of such formsamended or superseded filing), reports or documentseach SEC Report did not, includingand will not, without limitation, any financial statements or schedules included or incorporated by reference therein, contained, when filed, contain any untrue statement of a material fact or omitted omit to state a any material fact required to be stated or incorporated by reference therein or necessary in order to make the statements made therein, in the light of the circumstances under which they were made, not misleading. The Company has heretofore made available or promptly will make available to the PurchaserSince January 1, a complete and correct copy of any amendment to the SEC Reports. None of the Subsidiaries of the Company is required to file any reports2010, statements, forms or other documents with the SEC.
(b) The SEC Reports contain audited consolidated balance sheets of the Company and its Subsidiaries as of December 31 in each of the years 1995 through 1998, and the related audited consolidated statements of income, statements of cash flow and changes in Shareholders' equity of the Company and its Subsidiaries for the fiscal years then ended, together with the respective reports thereon of KPMG LLP. These audited financial statements of the Company were included or incorporated by reference in the SEC Reports (collectively, including the footnotes thereto, the "SEC Financial Statements"), were prepared in accordance with GAAP (except as otherwise stated in the SEC Financial Statements or in the related reports of the Company's independent accountants) and present fairly the consolidated financial position of the Company and its subsidiaries as at the dates thereof, and the results of operations, changes in financial position and statements of Shareholders' equity of the Company and its Subsidiaries for the periods indicated. No event has occurred since the Balance Sheet Date that would require a restatement of the SEC Financial Statements under GAAP other than by reason of a change in GAAP. The SEC Financial Statements reflect, and on the Closing Date will reflect, the interest of the Company in the assets, liabilities and operations of all Subsidiaries of the Company.
(c) Neither neither the Company nor any of its Subsidiaries has received from the SEC or any material liability, obligation other Governmental Entity any written comments or commitment of any nature whatsoever (whether known or unknown due or to become due, accrued, fixed, contingent, liquidated, unliquidated or otherwise) other than liabilities, obligations or commitments (i) which are accrued or reserved against in the consolidated balance sheet of the Company and its consolidated subsidiaries as of December 31, 1999 included in the Audited Financial Statements or reflected in the notes thereto, (ii)(x) which arose in the ordinary course of business since such date and (y) which do not or would not individually or in the aggregate have a Material Adverse Effect, or (iii) which are of the type that would not be required to be reflected on a consolidated balance sheet of the Company and its Subsidiaries or in the notes thereto if such balance sheet were prepared in accordance with GAAP as of the date thereof or as of the Closing Date, as the case may be.
(d) Except as set forth on Schedule 5.25(d), since the date of the Company's 1999 Proxy Statement to the date hereof, the Company has not entered into or otherwise become obligated questions with respect to any transactions which would require disclosure pursuant to Item 404 of Regulation S-K in accordance with Items 7(bthe SEC Reports (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 Reports (cincluding the financial statements included therein) of Schedule 14A under the Exchange Act were a Company proxy statement to be distributed as or registration statements are being reviewed or investigated. None of the date hereofCompany’s Subsidiaries is required to file any forms, reports, schedules, statements or other documents with the SEC. No executive officer of the Company has failed to make the certifications required of him or her under Section 302 or 906 of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act with respect to any SEC Report, except as disclosed in certifications filed with the SEC Reports. Neither the Company nor any of its executive officers has received notice from any Governmental Entity challenging or questioning the accuracy, completeness, form or manner of filing of such certifications.
Appears in 2 contracts
Sources: Merger Agreement (Microchip Technology Inc), Merger Agreement (Supertex Inc)
SEC Reports. (aNotwithstanding that the Company may not be subject to the reporting requirements of Section 13 or 15(d) The Company has filed all required formsof the Exchange Act, reports to the extent permitted by the Exchange Act and documents with the SEC since December 31SEC, 1995 (collectively, the "SEC Reports"), except that the Company will file or furnish with the SEC, and make available to the Trustee and the Holders of the Notes, the annual reports and the information, documents and other reports (or copies of such portions of any of the foregoing as the SEC may by rules and regulations prescribe) that are specified in Sections 13 and 15(d) of the Exchange Act within the time periods specified therein or in the relevant forms. In the event that the Company is not permitted to file such reports, documents and information with the SEC pursuant to the Exchange Act or any rule, regulation, interpretation or action of the SEC, the Company will nevertheless make available such Exchange Act information to the Trustee and the Holders of the Notes as if the Company were subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act within the time periods specified therein. If the Company has designated any of its Subsidiaries as Unrestricted Subsidiaries, or if the Company’s consolidated financial statements consolidate any Physician Groups that are not Restricted Subsidiaries, and if such Unrestricted Subsidiaries and Physician Groups that are not Restricted Subsidiaries would, in the aggregate and calculated as of the last day of the applicable fiscal quarter or fiscal year, as the case may be, constitute a Notification of Late Filing Significant Subsidiary, then the quarterly report on Form 12610-25 notifying the SEC that its Q or annual report on Form 10-K (or any applicable successor forms) for its 1999 such fiscal year could not be filed within quarter or fiscal year, as the prescribed time period. Each of case may be, required by the SEC Reports has complied in all material respects with all applicable requirements of the Securities Act and the Exchange Act, each as in effect on the dates so filed. None of such forms, reports or documents, including, without limitation, any financial statements or schedules included or incorporated by reference therein, contained, when filed, any untrue statement of preceding paragraph shall include a material fact or omitted to state a material fact required to be stated or incorporated by reference therein or necessary in order to make the statements thereinreasonably detailed presentation or, in light the case of the circumstances under which they were made, not misleading. The Company has heretofore made available or promptly will make available to the Purchaser, a complete and correct copy of any amendment to the SEC Reports. None of the Subsidiaries of the Company is required to file any reports, statements, forms or other documents with the SEC.
clause (b) The SEC Reports contain audited consolidated balance sheets of the Company and its Subsidiaries as of December 31 in each of the years 1995 through 1998below, and the related audited consolidated statements of incomea summary, statements of cash flow and changes in Shareholders' equity of the Company and its Subsidiaries for the fiscal years then ended, together with the respective reports thereon of KPMG LLP. These audited financial statements of the Company were included or incorporated by reference (a) in the SEC Reports (collectively, including the footnotes thereto, the "SEC Financial Statements"), were prepared in accordance with GAAP (except as otherwise stated in the SEC Financial Statements or in the related reports of the Company's independent accountants) and present fairly to the consolidated financial position statements and (b) in Management’s Discussion and Analysis of Results of Operations and Financial Condition, of the Company consolidated financial condition and its subsidiaries as at the dates thereof, and the results of operations, changes in financial position and statements of Shareholders' equity of the Company and its Subsidiaries for the periods indicated. No event has occurred since the Balance Sheet Date that would require a restatement of the SEC Financial Statements under GAAP other than by reason of a change in GAAP. The SEC Financial Statements reflect, and on the Closing Date will reflect, the interest of the Company in the assets, liabilities and operations of all Subsidiaries of the Company.
(c) Neither the Company nor any of its Subsidiaries has any material liability, obligation or commitment of any nature whatsoever (whether known or unknown due or to become due, accrued, fixed, contingent, liquidated, unliquidated or otherwise) other than liabilities, obligations or commitments (i) which are accrued or reserved against in the consolidated balance sheet of the Company and its consolidated subsidiaries as of December 31subsidiaries, 1999 included excluding any such Unrestricted Subsidiaries and without consolidating any such Physician Groups that are not Restricted Subsidiaries (it being understood that information comparable to that appearing under the caption “Risk Factors—Risks Relating to Investment in the Audited Financial Statements or reflected in Notes–Our consolidated financial statements include the notes thereto, (ii)(x) which arose in the ordinary course results of business since such date and (y) which do certain physician groups that are not or would not individually or in the aggregate have a Material Adverse Effect, or (iii) which are of the type that would not be required to be reflected on a consolidated balance sheet of owned by the Company and its Subsidiaries or will not guarantee the notes” in the notes thereto if Company’s prospectus supplement dated June 10, 2014 relating to the original issuance of its 5.125% Senior Notes due 2024 on June 13, 2014 will be deemed to satisfy the requirements of this clause (b), provided that, for purposes of this clause (b), such balance sheet were prepared in accordance with GAAP as information shall be provided for the three, six or nine month period of the date thereof then current fiscal year covered by such Form 10-Q (it being understood that no such information need be provided for any three month period within any such six or as of nine month period) or the Closing Datemost recent fiscal year covered by such Form 10-K, as the case may be.
). The quarterly and annual financial information required by the preceding sentence shall reflect the adjustments necessary so that any Unrestricted Subsidiaries and any Physician Groups that are not Restricted Subsidiaries (dand any Subsidiaries of such Unrestricted Subsidiaries and such Physician Groups) Except as set forth on Schedule 5.25(d), since are not consolidated in the date Company’s financial statements (it being understood that the Company’s direct or indirect equity interest in and share of the Company's 1999 Proxy Statement revenues, operating income, net income or similar operating results of any such Person that is accounted for under the equity method, and any management fees or other amounts payable to the date hereofCompany or any of its Restricted Subsidiaries by any such Physician Group that is not a Restricted Subsidiary, may be reflected in such consolidated financial information; and it being further understood that all such adjustments may appear in the notes to the financial statements and need not be made or reflected in the financial statements themselves). Anything in this paragraph to the contrary notwithstanding, the Company has not entered into or otherwise become obligated with respect to any transactions which would require disclosure pursuant to Item 404 of Regulation Smay, if it so elects, provide the information required by this paragraph in a current report on Form 8-K in accordance (or any applicable successor form) filed or furnished substantially concurrently with Items 7(bthe applicable Form 10-Q or 10-K, as the case may be. For purposes of this Section 4.18, the Company and the Subsidiary Guarantors will be deemed to have furnished the reports to the Trustee and the Holders of Notes as required by this Section 4.18 if they have filed or furnished such reports with the SEC via the ▇▇▇▇▇ (or successor or similar) filing system and such reports are publicly available. Delivery of such reports, information and documents to the Trustee is for informational purposes only and the Trustee’s receipt of such shall not constitute constructive notice of any information contained therein or determinable from information contained therein, including the Company’s compliance with any of its covenants hereunder (c) of Schedule 14A under as to which the Exchange Act were a Company proxy statement Trustee is entitled to be distributed as of the date hereofrely exclusively on Officers’ Certificates).
Appears in 2 contracts
Sources: Indenture (Davita Healthcare Partners Inc.), Indenture (Physicians Choice Dialysis, LLC)
SEC Reports. (a) The Company has filed or furnished (as applicable) and made available to Parent all forms, reports, schedules, statements and other documents, including any exhibits thereto, required to be filed or furnished (as applicable) by the Company with the SEC since January 1, 2013 (collectively, the “Company SEC Reports”). The Company SEC Reports, including all forms, reports and documents filed or furnished (as applicable) by the Company with the SEC since December 31after the date hereof and prior to the Effective Time, 1995 (collectivelyi) were and, in the "SEC Reports"), except that case of the Company will file a Notification of Late Filing on Form 126-25 notifying the SEC that its Form 10-K for its 1999 fiscal year could not be filed within the prescribed time period. Each of the SEC Reports has complied filed or furnished (as applicable) after the date hereof, will be, prepared in all material respects accordance with all the applicable requirements of the Securities Act and Act, the Exchange Act, each the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act and the ▇▇▇▇-▇▇▇▇▇ ▇▇▇▇ Street Reform and Consumer Protection Act (the “▇▇▇▇-▇▇▇▇▇ Act”), as the case may be, and the rules and regulations thereunder, and (ii) except to the extent that information contained in effect any Company SEC Report has been revised, amended, modified or superseded prior to the date of this Agreement by a later filed Company SEC Report, did not at the time they were filed or furnished (as applicable) (or if amended or superseded by a filing prior to the date of this Agreement, then on the dates so filed. None date of such filing), and in the case of such forms, reports and documents filed or documentsfurnished (as applicable) by the Company with the SEC after the date of this Agreement, includingwill not as of the time they are filed or furnished (as applicable), without limitation, any financial statements or schedules included or incorporated by reference therein, contained, when filed, 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 in such Company SEC Reports or necessary in order to make the statements thereinin such Company SEC Reports, in light of the circumstances under which they were and will be made, not misleading. The Company has heretofore made available or promptly will make available to the Purchaser, a complete and correct copy of any amendment to the SEC Reports. None of the Subsidiaries of the Company is required to file or furnish (as applicable) any forms, reports, statementsschedules, forms statements or other documents with the SEC.
(b) The . Since January 1, 2013, other than arising after the date hereof from or relating to the Merger or any of the other transactions contemplated by this Agreement, neither the Company nor any Subsidiary of the Company has received from the SEC or any other Governmental Authority, any written comments or questions with respect to any of the SEC Reports contain audited consolidated balance sheets (including the financial statements included therein) or any registration statement filed by any of them with the SEC that (A) remain unresolved or (B) have been resolved but not publicly disclosed, or any notice from the SEC or other Governmental Authority that such SEC Reports (including the financial statements included therein) or registration statements are being reviewed or investigated, and, to the Company’s Knowledge, there is not any investigation or review being conducted by the SEC or any other Governmental Authority of any SEC Reports (including the financial statements included therein). The Company maintains disclosure controls and procedures 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 the Company’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 the Company’s management as appropriate to allow timely decisions regarding required disclosure and to enable each of the principal executive officer of the Company and its Subsidiaries as of December 31 in each of the years 1995 through 1998, and the related audited consolidated statements of income, statements of cash flow and changes in Shareholders' equity principal financial officer of the Company and its Subsidiaries for to make the fiscal years then ended, together with the respective reports thereon of KPMG LLP. These audited financial statements of the Company were included or incorporated by reference in the SEC Reports (collectively, including the footnotes thereto, the "SEC Financial Statements"), were prepared in accordance with GAAP (except as otherwise stated in the SEC Financial Statements or in the related reports of the Company's independent accountants) and present fairly the consolidated financial position of the Company and its subsidiaries as at the dates thereof, and the results of operations, changes in financial position and statements of Shareholders' equity of the Company and its Subsidiaries for the periods indicated. No event has occurred since the Balance Sheet Date that would require a restatement of the SEC Financial Statements under GAAP other than by reason of a change in GAAP. The SEC Financial Statements reflect, and on the Closing Date will reflect, the interest of the Company in the assets, liabilities and operations of all Subsidiaries of the Company.
(c) Neither the Company nor any of its Subsidiaries has any material liability, obligation or commitment of any nature whatsoever (whether known or unknown due or to become due, accrued, fixed, contingent, liquidated, unliquidated or otherwise) other than liabilities, obligations or commitments (i) which are accrued or reserved against in the consolidated balance sheet of the Company and its consolidated subsidiaries as of December 31, 1999 included in the Audited Financial Statements or reflected in the notes thereto, (ii)(x) which arose in the ordinary course of business since such date and (y) which do not or would not individually or in the aggregate have a Material Adverse Effect, or (iii) which are of the type that would not be certifications required to be reflected on a consolidated balance sheet of the Company and its Subsidiaries or in the notes thereto if such balance sheet were prepared in accordance with GAAP as of the date thereof or as of the Closing Date, as the case may be.
(d) Except as set forth on Schedule 5.25(d), since the date of the Company's 1999 Proxy Statement to the date hereof, the Company has not entered into or otherwise become obligated with respect to any transactions which would require disclosure pursuant to Item 404 of Regulation S-K in accordance with Items 7(b) or (c) of Schedule 14A under the Exchange Act were a Company proxy statement with respect to be distributed as of the date hereofsuch reports.
Appears in 2 contracts
Sources: Merger Agreement (Entropic Communications Inc), Merger Agreement (Maxlinear Inc)
SEC Reports. Whether or not required by the SEC, so long as any Notes are outstanding, the Issuer shall furnish to the Holders of Notes, within fifteen (a15) The Company has filed days after the time periods specified in the SEC’s rules and regulations for a company that is subject to Section 13(a) or 15(d) of the Exchange Act:
(1) all quarterly and annual financial information that would be required forms, reports and documents to be contained in a filing with the SEC since December 31, 1995 (collectively, the "SEC Reports"), except that the Company will file a Notification of Late Filing on Form 126Forms 10-25 notifying the SEC that its Form Q and 10-K for its 1999 fiscal year could not if the Issuer were required to file such Forms, including a “Management’s Discussion and Analysis of Financial Condition and Results of Operations” and, with respect to the annual information only, a report on the annual financial statements by the Issuer’s certified independent accountants; and
(2) all current reports that would be required to be filed within with the prescribed time period. Each SEC on Form 8-K if the Issuer were required to file such reports; provided that any such above information or reports filed with the Electronic Data Gathering and Retrieval System of the SEC Reports has complied in all material respects with all applicable requirements (or successor system) and available publicly on the Internet shall be deemed to be furnished to the Holders of Notes. The quarterly and annual financial information required by the preceding paragraph shall include a reasonably detailed presentation, either on the face of the Securities Act and the Exchange Act, each as in effect on the dates so filed. None of such forms, reports or documents, including, without limitation, any financial statements or schedules included or incorporated by reference therein, contained, when filed, any untrue statement of a material fact or omitted to state a material fact required to be stated or incorporated by reference 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 heretofore made available or promptly will make available to the Purchaser, a complete and correct copy of any amendment to the SEC Reports. None of the Subsidiaries of the Company is required to file any reports, statements, forms or other documents with the SEC.
(b) The SEC Reports contain audited consolidated balance sheets of the Company and its Subsidiaries as of December 31 in each of the years 1995 through 1998, and the related audited consolidated statements of income, statements of cash flow and changes in Shareholders' equity of the Company and its Subsidiaries for the fiscal years then ended, together with the respective reports thereon of KPMG LLP. These audited financial statements of the Company were included or incorporated by reference in the SEC Reports (collectively, including the footnotes thereto, of the "financial condition and results of operations of the Issuer and its Restricted Subsidiaries separate from the financial condition and results of operations of the Issuer’s Unrestricted Subsidiaries. In addition, whether or not required by the SEC, the Issuer shall file a copy of all of the information and reports referred to in clauses (1) and (2) above with the SEC Financial Statements"), were prepared in accordance with GAAP for public availability within fifteen (except as otherwise stated 15) days after the time periods specified in the SEC’s rules and regulations (unless the SEC Financial Statements or will not accept such a filing) and make such information available to securities analysts and prospective investors upon request. The Issuer agrees that it shall not take any action for the purpose of causing the SEC not to accept such filings. If, notwithstanding the foregoing, the SEC will not accept such filings for any reason, the Issuer shall post the reports specified in the related reports of preceding sentence on its website within the Company's independent accountants) and present fairly the consolidated financial position of the Company and its subsidiaries as at the dates thereof, and the results of operations, changes in financial position and statements of Shareholders' equity of the Company and its Subsidiaries for the time periods indicated. No event has occurred since the Balance Sheet Date that would require a restatement of apply if the SEC Financial Statements under GAAP other than Issuer were required to file those reports with the SEC. In addition, to the extent not satisfied by reason of a change in GAAP. The SEC Financial Statements reflect, and on the Closing Date will reflectforegoing, the interest Issuer shall agree that, for so long as any Notes remain outstanding, it shall furnish to Holders of Notes and securities analysts and prospective investors, upon their request, the Company in the assets, liabilities and operations of all Subsidiaries of the Company.
(c) Neither the Company nor any of its Subsidiaries has any material liability, obligation or commitment of any nature whatsoever (whether known or unknown due or to become due, accrued, fixed, contingent, liquidated, unliquidated or otherwise) other than liabilities, obligations or commitments (i) which are accrued or reserved against in the consolidated balance sheet of the Company and its consolidated subsidiaries as of December 31, 1999 included in the Audited Financial Statements or reflected in the notes thereto, (ii)(x) which arose in the ordinary course of business since such date and (y) which do not or would not individually or in the aggregate have a Material Adverse Effect, or (iii) which are of the type that would not be information required to be reflected on a consolidated balance sheet of the Company and its Subsidiaries or in the notes thereto if such balance sheet were prepared in accordance with GAAP as of the date thereof or as of the Closing Date, as the case may be.
(d) Except as set forth on Schedule 5.25(d), since the date of the Company's 1999 Proxy Statement to the date hereof, the Company has not entered into or otherwise become obligated with respect to any transactions which would require disclosure delivered pursuant to Item 404 of Regulation S-K in accordance with Items 7(bRule 144A(d)(4) or (c) of Schedule 14A under the Exchange Act were a Company proxy statement to be distributed as of the date hereofSecurities Act.
Appears in 2 contracts
Sources: Indenture (Horsehead Holding Corp), Indenture (Horsehead Holding Corp)
SEC Reports. (a) The Company Hortonworks has filed and made available to Cloudera all forms, reports, schedules, statements and other documents, including any exhibits thereto, required to be filed by Hortonworks with the SEC since January 1, 2017 (collectively, the “Hortonworks SEC Reports”). The Hortonworks SEC Reports, including all forms, reports and documents filed by Hortonworks with the SEC since December 31after the date hereof and prior to the Effective Time, 1995 (collectivelyi) were and, in the "SEC Reports"), except that the Company will file a Notification of Late Filing on Form 126-25 notifying the SEC that its Form 10-K for its 1999 fiscal year could not be filed within the prescribed time period. Each case of the Hortonworks SEC Reports has complied filed after the date hereof, will be, prepared in all material respects accordance with all the applicable requirements of the Securities Act, the Exchange Act and the Exchange ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act, each as in effect the case may be, and the rules and regulations thereunder, and (ii) did not at the time they were filed (or if amended or superseded by a filing prior to the date of this Agreement, then on the dates so filed. None date of such filing), and in the case of such forms, reports or documentsand documents filed by Hortonworks with the SEC after the date of this Agreement, including, without limitation, any financial statements or schedules included or incorporated by reference therein, contained, when will not as of the time they are filed, 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 in such Hortonworks SEC Reports or necessary in order to make the statements thereinin such Hortonworks SEC Reports, in light of the circumstances under which they were and will be made, not misleading. The Company has heretofore made available or promptly will make available to the Purchaser, a complete and correct copy of any amendment to the SEC Reports. None of the Subsidiaries of the Company Hortonworks is required to file any forms, reports, statementsschedules, forms statements or other documents with the SEC.
(b) The SEC Reports contain audited consolidated balance sheets of the Company and its Subsidiaries as of December 31 in each of the years 1995 through 1998, and the related audited consolidated statements of income, statements of cash flow and changes in Shareholders' equity of the Company and its Subsidiaries for the fiscal years then ended, together with the respective reports thereon of KPMG LLP. These audited financial statements of the Company were included or incorporated by reference in the SEC Reports (collectively, including the footnotes thereto, the "SEC Financial Statements"), were prepared in accordance with GAAP (except as otherwise stated in the SEC Financial Statements or in the related reports of the Company's independent accountants) and present fairly the consolidated financial position of the Company and its subsidiaries as at the dates thereof, and the results of operations, changes in financial position and statements of Shareholders' equity of the Company and its Subsidiaries for the periods indicated. No event has occurred since the Balance Sheet Date that would require a restatement of the SEC Financial Statements under GAAP other than by reason of a change in GAAP. The SEC Financial Statements reflect, and on the Closing Date will reflect, the interest of the Company in the assets, liabilities and operations of all Subsidiaries of the Company.
(c) Neither the Company nor any of its Subsidiaries has any material liability, obligation or commitment of any nature whatsoever (whether known or unknown due or to become due, accrued, fixed, contingent, liquidated, unliquidated or otherwise) other than liabilities, obligations or commitments (i) which are accrued or reserved against in the consolidated balance sheet of the Company and its consolidated subsidiaries as of December 31, 1999 included in the Audited Financial Statements or reflected in the notes thereto, (ii)(x) which arose in the ordinary course of business since such date and (y) which do not or would not individually or in the aggregate have a Material Adverse Effect, or (iii) which are of the type that would not be required to be reflected on a consolidated balance sheet of the Company and its Subsidiaries or in the notes thereto if such balance sheet were prepared in accordance with GAAP as of the date thereof or as of the Closing Date, as the case may be.
(d) Except as set forth on Schedule 5.25(d), since the date of the Company's 1999 Proxy Statement to the date hereof, the Company has not entered into or otherwise become obligated with respect to any transactions which would require disclosure pursuant to Item 404 of Regulation S-K in accordance with Items 7(b) or (c) of Schedule 14A under the Exchange Act were a Company proxy statement to be distributed as of the date hereof.
Appears in 2 contracts
Sources: Merger Agreement (Hortonworks, Inc.), Merger Agreement (Cloudera, Inc.)
SEC Reports. (a) The Company has timely filed or furnished, as applicable, all required reports, proxy statements, schedules, forms, reports statements, certifications and other documents with (including exhibits and all other information incorporated by reference therein) required to be filed or furnished by the Company under the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder (the “Exchange Act”) (the “SEC Reports”) since December 31, 1995 (collectivelythe Company was first required by Law or regulation to file such material. The Delivered Super 8-K complies, the "SEC Reports"), except that the Company will file a Notification of Late Filing on Form 126-25 notifying the SEC that its Form 10Super 8-K for its 1999 fiscal year could not when filed will be filed within substantially identical to the prescribed time period. Each of Draft Super 8-K (as defined below) and will comply, and the SEC Reports has complied at the time they were filed complied, in all material respects with all applicable requirements of the Securities Act and or the Exchange Act, each as in effect on the dates so filedapplicable. None There are no Contracts (or any material change or amendment thereto, or any waiver of such forms, reports or documents, including, without limitation, any financial statements or schedules included or incorporated by reference therein, contained, when filed, any untrue statement of a material fact or omitted to state a material fact right thereunder) that are required to be stated described in the SEC Reports or incorporated by reference therein will be required to be described in the Super 8-K that were or necessary in order to make the statements thereinare not described, in light all material respects, therein or, in the case of Contracts (or any material change or amendment thereto, or any waiver of any material right thereunder) that will be required to be described in the circumstances under which they were madeSuper 8-K, are not misleading. The Company has heretofore made available described in the Delivered Super 8-K. There are no Contracts (or promptly will make available any material change or amendment thereto, or any waiver of any material right thereunder) that are required to be filed as exhibits to the Purchaser, a complete and correct copy of any amendment SEC Reports or the Super 8-K that were not or will not have been filed as required in the SEC Reports or the Super 8-K. There are no outstanding or unresolved comments in comment letters received from the SEC staff with respect to the SEC Reports. None To the Company’s knowledge, none of the Subsidiaries SEC Reports is the subject of an ongoing SEC review. There are no SEC inquiries or investigations, other governmental inquiries or investigations or internal investigations pending or threatened in writing (or, to the Company’s knowledge, threatened orally), in each case regarding any accounting practice of the Company is required to file any reports, statements, forms or other documents with the SEC.
(b) The SEC Reports contain audited consolidated balance sheets of the Company and its Subsidiaries as of December 31 in each of the years 1995 through 1998, and the related audited consolidated statements of income, statements of cash flow and changes in Shareholders' equity of the Company and its Subsidiaries for the fiscal years then ended, together with the respective reports thereon of KPMG LLP. These audited financial statements of the Company were included or incorporated by reference in the SEC Reports (collectively, including the footnotes thereto, the "SEC Financial Statements"), were prepared in accordance with GAAP (except as otherwise stated in the SEC Financial Statements or in the related reports of the Company's independent accountants) and present fairly the consolidated financial position of the Company and its subsidiaries as at the dates thereof, and the results of operations, changes in financial position and statements of Shareholders' equity of the Company and its Subsidiaries for the periods indicated. No event has occurred since the Balance Sheet Date that would require a restatement of the SEC Financial Statements under GAAP other than by reason of a change in GAAP. The SEC Financial Statements reflect, and on the Closing Date will reflect, the interest of the Company in the assets, liabilities and operations of all Subsidiaries of the Company.
(c) Neither the Company nor any of its Subsidiaries has any material liability, obligation or commitment of any nature whatsoever (whether known or unknown due or otherwise relating to become due, accrued, fixed, contingent, liquidated, unliquidated or otherwise) other than liabilities, obligations or commitments (i) which are accrued or reserved against in the consolidated balance sheet of the Company and or any of its consolidated subsidiaries as of December 31, 1999 included in the Audited Financial Statements or reflected in the notes thereto, (ii)(x) which arose in the ordinary course of business since such date and (y) which do not or would not individually or in the aggregate have a Material Adverse Effect, or (iii) which are of the type that would not be required to be reflected on a consolidated balance sheet of the Company and its Subsidiaries or in the notes thereto if such balance sheet were prepared in accordance with GAAP as of the date thereof or as of the Closing Date, as the case may beSubsidiaries.
(d) Except as set forth on Schedule 5.25(d), since the date of the Company's 1999 Proxy Statement to the date hereof, the Company has not entered into or otherwise become obligated with respect to any transactions which would require disclosure pursuant to Item 404 of Regulation S-K in accordance with Items 7(b) or (c) of Schedule 14A under the Exchange Act were a Company proxy statement to be distributed as of the date hereof.
Appears in 2 contracts
Sources: Subscription Agreement (Deep Fission, Inc.), Subscription Agreement (Deep Isolation Nuclear, Inc.)
SEC Reports. Financial Statements; Undisclosed Liabilities. ----------------------------------------------------------
(a) The Company has filed all required forms, reports reports, schedules, statements and other documents required to be filed by it with the SEC since December 31, 1995 (collectively, its inception pursuant to the "SEC Reports"), except that the Company will file a Notification of Late Filing on Form 126-25 notifying federal securities laws and the SEC that its Form 10-K for its 1999 fiscal year could not be filed within the prescribed time period. Each rules and regulations thereunder, all of the SEC Reports has which, as of their respective dates, complied in all material respects with all applicable requirements of the Securities Act of 1933, as amended (the "Securities Act"), and the Exchange Act, each as in effect on the dates so filedcase may be, and the applicable rules and regulations of the SEC thereunder (collectively, the "Company SEC Reports"). None of such forms, reports or documentsthe Company SEC Reports, including, without limitation, any financial statements or schedules included or incorporated by reference therein, containedas of their respective dates, when filed, contained any untrue statement of a material fact or omitted to state a material fact required to be stated or incorporated by reference 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 heretofore made available or promptly will make available to the Purchaser, a complete and correct copy of any amendment to the SEC Reports. None of the Subsidiaries of the Company is required to file any reports, statements, forms or other documents with the SEC.
(b) The SEC Reports contain audited consolidated balance sheets financial statements (including the related notes thereto) of the Company included in the Company SEC Reports comply in all material respects with applicable accounting requirements and its Subsidiaries as of December 31 in each the published rules and regulations of the years 1995 through 1998SEC with respect thereto, and the related audited consolidated statements of income, statements of cash flow and changes have been prepared in Shareholders' equity of the Company and its Subsidiaries for the fiscal years then ended, together conformity with the respective reports thereon of KPMG LLP. These audited financial statements of the Company were included or incorporated by reference generally accepted accounting principles ("GAAP ") in the SEC Reports (collectively, including United States applied on a consistent basis during the footnotes thereto, the "SEC Financial Statements"), were prepared in accordance with GAAP periods involved (except as otherwise stated in the SEC Financial Statements or in the related reports of the Company's independent accountants) noted therein), and present fairly the consolidated financial position of the Company and its subsidiaries consolidated Company Subsidiaries as at the dates thereofof their respective dates, and the consolidated results of operations, changes in financial position their operations and statements of Shareholders' equity of the Company and its Subsidiaries cash flows for the periods indicated. No event has occurred since presented therein (subject, in the Balance Sheet Date that would require a restatement case of the SEC Financial Statements under GAAP other than by reason of a change in GAAP. The SEC Financial Statements reflectunaudited interim financial statements, and on the Closing Date will reflect, the interest of the Company in the assets, liabilities and operations of all Subsidiaries of the Companyto normal year-end adjustments).
(c) Neither the Company nor any of its Subsidiaries has any material liability, obligation or commitment of any nature whatsoever (whether known or unknown due or to become due, accrued, fixed, contingent, liquidated, unliquidated or otherwise) other than liabilities, obligations or commitments Except (i) which are accrued or reserved against as set forth in Section 3.4(c) of the Company Disclosure Schedule, (ii) as set forth in the consolidated balance sheet of the Company and its consolidated subsidiaries as of December March 31, 1999 included set forth in the Audited Financial Statements or reflected in Company's Quarterly Report on Form 10-Q for the notes theretoquarter ended March 31, 1999 (ii)(xthe "Balance Sheet") which arose and (iii) for current liabilities and obligations incurred in the ordinary course of business consistent with past practice since such date March 31, 1999 (and (y) which do not materially different in type or would not individually or in the aggregate have a Material Adverse Effectamount), or (iii) which are of the type that would not be required to be reflected on a consolidated balance sheet of neither the Company and its Subsidiaries nor any Company Subsidiary has any material liabilities or in the notes thereto if such balance sheet were prepared in accordance with GAAP as obligations of the date thereof any nature (whether accrued, absolute, contingent or as of the Closing Date, as the case may beotherwise).
(d) Except as set forth on Schedule 5.25(d), since the date All accounts receivable of the Company's 1999 Proxy Statement to Company and each Company Subsidiary that are reflected in the date hereof, Balance Sheet or on the accounting records of the Company has not entered into or otherwise become obligated with respect to any transactions which would require disclosure pursuant to Item 404 of Regulation S-K in accordance with Items 7(b) or (c) of Schedule 14A under and the Exchange Act were a Company proxy statement to be distributed Subsidiaries as of the date hereofany Shares have been accepted for payment pursuant to the Offer represent and will represent valid obligations arising from sales actually made or services actually performed in the ordinary course of business. Section 3.4(d) of the Company Disclosure Schedule contains a complete and accurate aged accounts receivable list of the Company and the Company Subsidiaries as of June 30, 1999. As of the date any Shares have been accepted for payment pursuant to the Offer, there shall have been no material increase in the accounts receivable of the Company and the Company Subsidiaries that are 30 days or more past due. Unless paid prior to the date any Shares have been accepted for payment pursuant to the Offer, the accounts receivable of the Company and each Company Subsidiary are or will be as of the date any Shares have been accepted for payment pursuant to the Offer, collectible net of the respective reserves shown in Section 3.4(d) of the Company Disclosure Schedule or on the accounting records of the Company and each Company Subsidiary as of the date any Shares have been accepted for payment pursuant to the Offer (which reserves are adequate and calculated consistent with past practice and, in the case of the reserves as of the date any Shares have been accepted for payment pursuant to the Offer, will not represent a greater percentage of the 30 days or more past due accounts receivable as of such date than the reserves reflected in Section 3.4(d) of the Company Disclosure Schedule represented of such past due accounts receivable reflected therein).
Appears in 2 contracts
Sources: Merger Agreement (Plato Holdings Inc), Merger Agreement (Plato Holdings Inc)
SEC Reports. (a) The Since January 1, 2015, the Company has filed or furnished (as applicable) all required forms, reports reports, schedules, statements and documents with the SEC since December 31that have been required to be so filed or furnished (as applicable) by it under Applicable Law at or prior to the time so required (all such forms, 1995 reports, schedules, statements and documents, together with any other forms, reports, schedules, statements or other documents filed or furnished (collectivelyas applicable) by the Company with the SEC after January 1, 2015 and at or prior to the Effective Time that are not required to be so filed or furnished, the "“Company SEC Reports"”).
(b) Each Company SEC Report complied, or will comply, as the case may be, as of its filing date (or, if amended or superseded by a filing, on the date of such amended or superseded filing), except that the Company will file a Notification of Late Filing on Form 126-25 notifying the SEC that its Form 10-K for its 1999 fiscal year could not be filed within the prescribed time period. Each of the SEC Reports has complied as to form in all material respects with all the applicable requirements of the Securities Act and or the Exchange Act, as the case may be, and with all applicable provisions of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act, each as in effect on the dates so date such Company SEC Report was, or will be, filed. None .
(c) As of its filing date (or, if amended or superseded by a filing prior to the date of this Agreement, on the date of such formsamended or superseded filing), reports each Company SEC Report did not, or documentswill not, includingas the case may be, without limitation, any financial statements or schedules included or incorporated by reference therein, contained, when filed, contain any untrue statement of a material fact or omitted omit to state a any material fact required to be stated or incorporated by reference therein or necessary in order to make the statements made therein, in the light of the circumstances under which they were made, not misleading. The .
(d) As of the date of this Agreement, (i) there are no outstanding or unresolved comments in any comment letters of the staff of the SEC received by the Company has heretofore made available or promptly will make available relating to the PurchaserCompany SEC Reports or any registration statement filed by the Company with the SEC and (ii) no Company SEC Report nor any registration statement filed by the Company with the SEC is, a complete and correct copy of any amendment to the SEC Reports. None Knowledge of the Subsidiaries Company, the subject of ongoing SEC review.
(e) No Subsidiary of the Company is required subject to file any reports, statements, forms the reporting requirements of Section 13(a) or other documents with Section 15(d) of the SECExchange Act.
(bf) The SEC Reports contain audited consolidated balance sheets Since January 1, 2015, no executive officer of the Company and its Subsidiaries as has failed to make the certifications required of December 31 in each him or her under Section 302 or 906 of the years 1995 through 1998▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act with respect to any Company SEC Report, except as disclosed in certifications filed with the Company SEC Reports, and at the related audited consolidated statements time of incomefiling or submission of each such certification, statements of cash flow such certification was true and changes in Shareholders' equity of the Company accurate and its Subsidiaries for the fiscal years then ended, together complied with the respective reports thereon of KPMG LLP▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act. These audited financial statements of the Company were included or incorporated by reference in the SEC Reports (collectivelySince January 1, including the footnotes thereto2015, the "SEC Financial Statements"), were prepared in accordance with GAAP (except as otherwise stated in the SEC Financial Statements or in the related reports of the Company's independent accountants) and present fairly the consolidated financial position of the Company and its subsidiaries as at the dates thereof, and the results of operations, changes in financial position and statements of Shareholders' equity of the Company and its Subsidiaries for the periods indicated. No event has occurred since the Balance Sheet Date that would require a restatement of the SEC Financial Statements under GAAP other than by reason of a change in GAAP. The SEC Financial Statements reflect, and on the Closing Date will reflect, the interest of the Company in the assets, liabilities and operations of all Subsidiaries of the Company.
(c) Neither neither the Company nor any of its Subsidiaries executive officers has received any material liabilitywritten notice from any Governmental Entity challenging or questioning the accuracy, obligation completeness, form or commitment manner of any nature whatsoever (whether known or unknown due or to become due, accrued, fixed, contingent, liquidated, unliquidated or otherwise) other than liabilities, obligations or commitments (i) which are accrued or reserved against in the consolidated balance sheet filing of the Company and its consolidated subsidiaries as of December 31, 1999 included in the Audited Financial Statements or reflected in the notes thereto, (ii)(x) which arose in the ordinary course of business since such date and (y) which do not or would not individually or in the aggregate have a Material Adverse Effect, or (iii) which are of the type that would not be required to be reflected on a consolidated balance sheet of the Company and its Subsidiaries or in the notes thereto if such balance sheet were prepared in accordance with GAAP as of the date thereof or as of the Closing Date, as the case may becertifications.
(d) Except as set forth on Schedule 5.25(d), since the date of the Company's 1999 Proxy Statement to the date hereof, the Company has not entered into or otherwise become obligated with respect to any transactions which would require disclosure pursuant to Item 404 of Regulation S-K in accordance with Items 7(b) or (c) of Schedule 14A under the Exchange Act were a Company proxy statement to be distributed as of the date hereof.
Appears in 2 contracts
Sources: Merger Agreement (Lumentum Holdings Inc.), Merger Agreement (Oclaro, Inc.)
SEC Reports. (a) The Company has timely filed all required forms, reports and documents with the SEC (including following any extensions of time for filing provided by Rule 12b-25 promulgated under the Exchange Act) all forms, reports, schedules, statements and other documents required to be filed by the Company with the SEC, and any documents or information furnished to the SEC on a voluntary basis on Current Reports on Form 8-K, in each case since December 31January 1, 1995 2012 (collectively, the "“Company SEC Reports"”). The Company SEC Reports, except that as filed with or furnished to the Company will file a Notification of Late Filing on Form 126-25 notifying the SEC that its Form 10-K for its 1999 fiscal year could not be filed within the prescribed time period. Each of the SEC Reports has SEC, (i) complied as to form in all material respects with all applicable the requirements of the Securities Act and or the Exchange Act, each as the case may be, applicable to such Company SEC Reports, as the case may be, (ii) were prepared in effect on all material respects in accordance with the dates so requirements of the Securities Act, the Exchange Act and other applicable Laws and (iii) did not, at the time they were filed. None , or if amended or restated, at the time of such formslater amendment or restatement, reports or documentsand at their respective effective dates, including, without limitation, any financial statements or schedules included or incorporated by reference therein, contained, when filed, 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 therein, in the light of the circumstances under which they such statements were made, not misleading. The Company has heretofore made available or promptly will make available to the Purchaser, a complete and correct copy of any amendment to the SEC Reports. None of the Subsidiaries No Subsidiary of the Company is subject to the periodic reporting requirements of the Exchange Act or is otherwise required to file any forms, reports, statementsschedules, forms statements or other documents with the SEC, any foreign Governmental Entity that performs a similar function to that of the SEC or any securities exchange or quotation service.
(b) The SEC Reports contain audited consolidated balance sheets As of the Company and its Subsidiaries as of December 31 in each of the years 1995 through 1998their respective dates, and the related audited consolidated statements of incomeor, statements of cash flow and changes in Shareholders' equity of the Company and its Subsidiaries for the fiscal years then endedif amended, together with the respective reports thereon of KPMG LLP. These audited financial statements of the Company were included or incorporated by reference in the SEC Reports (collectively, including the footnotes thereto, the "SEC Financial Statements"), were prepared in accordance with GAAP (except as otherwise stated in the SEC Financial Statements or in the related reports of the Company's independent accountants) and present fairly the consolidated financial position of the Company and its subsidiaries as at the dates thereof, and the results of operations, changes in financial position and statements of Shareholders' equity of the Company and its Subsidiaries for the periods indicated. No event has occurred since the Balance Sheet Date that would require a restatement of the SEC Financial Statements under GAAP other than by reason of a change in GAAP. The SEC Financial Statements reflect, and on the Closing Date will reflect, the interest of the Company in the assets, liabilities and operations of all Subsidiaries of the Company.
(c) Neither the Company nor any of its Subsidiaries has any material liability, obligation or commitment of any nature whatsoever (whether known or unknown due or to become due, accrued, fixed, contingent, liquidated, unliquidated or otherwise) other than liabilities, obligations or commitments (i) which are accrued or reserved against in the consolidated balance sheet of the Company and its consolidated subsidiaries as of December 31, 1999 included in the Audited Financial Statements or reflected in the notes thereto, (ii)(x) which arose in the ordinary course of business since such date and (y) which do not or would not individually or in the aggregate have a Material Adverse Effect, or (iii) which are of the type that would not be required to be reflected on a consolidated balance sheet of the Company and its Subsidiaries or in the notes thereto if such balance sheet were prepared in accordance with GAAP as of the date thereof or as of the Closing Datelast such amendment, the Company SEC Reports, as filed with or furnished to the SEC, complied in all material respects with the requirements of the Securities Act and the Exchange Act, as the case may be.
(d) Except as set forth on Schedule 5.25(d), since and the date applicable rules and regulations promulgated thereunder. As of the Company's 1999 Proxy Statement to the date hereof, there are no outstanding or unresolved written comments from the Company has not entered into or otherwise become obligated SEC with respect to any transactions which would require disclosure pursuant to Item 404 of Regulation S-K in accordance with Items 7(b) or (c) of Schedule 14A under the Exchange Act were a Company proxy statement to be distributed as SEC Reports. As of the date hereof, to the Knowledge of the Company, none of the Company SEC Reports filed on or prior to the date hereof is the subject of ongoing SEC review.
Appears in 2 contracts
Sources: Merger Agreement (Renaissancere Holdings LTD), Merger Agreement (Platinum Underwriters Holdings LTD)
SEC Reports. (a) The Company has filed all required forms, reports and documents with the SEC since December 31, 1995 (collectively, the "SEC Reports"), except that the Company will file a Notification of Late Filing on Form 126-25 notifying the SEC that its Form 10-K for its 1999 fiscal year could not be filed within the prescribed time period. Each of the SEC Reports has complied in all material respects with requirements to file all applicable requirements of reports, schedules, forms, statements and other documents required to be filed by the Securities Company under the Act and the Exchange Act, each including pursuant to Section 13(a) or 15(d) thereof, for the two years preceding the date hereof (or such shorter period as in effect on the dates so filed. None of Company was required by law or regulation to file such formsmaterial) (the foregoing materials, reports or documents, including, without limitation, any financial statements or schedules included or including the exhibits thereto and documents incorporated by reference therein, containedtogether with the Prospectus and the Prospectus Supplement, being collectively referred to herein as the “SEC Reports”) on a timely basis or has received a valid extension of such time of filing and has filed any such SEC Reports prior to the expiration of any such extension. As of their respective dates, the SEC Reports complied in all material respects with the requirements of the Act and the Exchange Act, as applicable, and none of the SEC Reports, when filed, contained any untrue statement of a material fact or omitted to state a material fact required to be stated or incorporated by reference therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. The Company has heretofore made available or promptly will make available to the Purchaser, a complete and correct copy of any amendment to the SEC Reports. None of the Subsidiaries of the Company is required to file any reports, statements, forms or other documents with the SEC.
(b) The SEC Reports contain audited consolidated balance sheets of the Company and its Subsidiaries as of December 31 in each of the years 1995 through 1998, and the related audited consolidated statements of income, statements of cash flow and changes in Shareholders' equity of the Company and its Subsidiaries for the fiscal years then ended, together with the respective reports thereon of KPMG LLP. These audited financial statements of the Company were included or incorporated by reference in the SEC Reports (collectively, including comply in all material respects with applicable accounting requirements and the footnotes thereto, rules and regulations of the "SEC Financial Statements"), were Commission with respect thereto as in effect at the time of filing or as such financial statements have been amended or corrected in a subsequent filing. Such financial statements have been prepared in accordance with GAAP International Financial Reporting Standards, as promulgated by the International Accounting Standards Board (“IFRS”), applied on a consistent basis during the periods involved, except as may be otherwise stated specified in such financial statements or the SEC Financial Statements or notes thereto and except that unaudited financial statements may not contain all footnotes required by IFRS, and fairly present in all material respects the related reports of the Company's independent accountants) and present fairly the consolidated financial position of the Company and its subsidiaries consolidated Subsidiaries as at of and for the dates thereof, thereof and the results of operations, changes in financial position operations and statements of Shareholders' equity of the Company and its Subsidiaries cash flows for the periods indicated. No event has occurred since the Balance Sheet Date that would require a restatement of the SEC Financial Statements under GAAP other than by reason of a change in GAAP. The SEC Financial Statements reflectthen ended, and on the Closing Date will reflectsubject, the interest of the Company in the assetscase of unaudited statements, liabilities and operations of all Subsidiaries of the Companyto normal, immaterial, year-end audit adjustments.
(c) Neither the Company nor any of its Subsidiaries has any material liability, obligation or commitment of any nature whatsoever (whether known or unknown due or to become due, accrued, fixed, contingent, liquidated, unliquidated or otherwise) other than liabilities, obligations or commitments (i) which are accrued or reserved against in the consolidated balance sheet of the Company and its consolidated subsidiaries as of December 31, 1999 included in the Audited Financial Statements or reflected in the notes thereto, (ii)(x) which arose in the ordinary course of business since such date and (y) which do not or would not individually or in the aggregate have a Material Adverse Effect, or (iii) which are of the type that would not be required to be reflected on a consolidated balance sheet of the Company and its Subsidiaries or in the notes thereto if such balance sheet were prepared in accordance with GAAP as of the date thereof or as of the Closing Date, as the case may be.
(d) Except as set forth on Schedule 5.25(d), since the date of the Company's 1999 Proxy Statement to the date hereof, the Company has not entered into or otherwise become obligated with respect to any transactions which would require disclosure pursuant to Item 404 of Regulation S-K in accordance with Items 7(b) or (c) of Schedule 14A under the Exchange Act were a Company proxy statement to be distributed as of the date hereof.
Appears in 2 contracts
Sources: At the Market Offering Agreement (Arqit Quantum Inc.), At the Market Offering Agreement (Arqit Quantum Inc.)
SEC Reports. So long as any Notes are outstanding, the Company will (ai) The furnish to the Holders or cause the Trustee to furnish to the Holders in each case within the time periods that such information would have otherwise been required to have been provided to the SEC if the rules and regulations applicable to the filing of such information were applicable to the Company has filed and (ii) post on its website within 10 Business Days thereafter:
(1) all quarterly and annual information that would be required forms, reports and documents to be contained in a filing with the SEC since December 31on Forms 10-Q and 10-K if the Company were required to file such Forms, 1995 including a "Management's Discussion and Analysis of Financial Condition and Results of Operations" and, with respect to the annual information only, a report on the annual financial statements by the Company's certified independent accountants in accordance with the professional standards of the American Institute of Certified Public Accountants; and
(collectively2) all current reports that would be required to be filed with the SEC on Form 8-K if the Company were required to file such reports. The availability of the foregoing materials on the SEC's ▇▇▇▇▇ service shall be deemed to satisfy the Company's delivery obligation. Following the consummation of the exchange offer or registration of the Notes contemplated by the Registration Rights Agreement, whether or not required by the "SEC Reports")SEC, except that the Company will file a Notification copy of Late Filing on Form 126-25 notifying all the information and reports referred to in clauses (1) and (2) above with the SEC that its Form 10-K for its 1999 fiscal year could not be filed public availability within the prescribed time period. Each of periods specified in the SEC's rules and regulations (unless the SEC Reports has complied in all material respects with all applicable requirements of the Securities Act will not accept such a filing) and the Exchange Act, each as in effect on the dates so filed. None of make such forms, reports or documents, including, without limitation, any financial statements or schedules included or incorporated by reference therein, contained, when filed, any untrue statement of a material fact or omitted to state a material fact required to be stated or incorporated by reference 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 heretofore made available or promptly will make information available to the Purchaser, a complete securities analysts and correct copy of any amendment to the SEC Reportsprospective investors upon request. None of the Subsidiaries of the Company is required to file any reports, statements, forms or other documents with the SEC.
(b) The SEC Reports contain audited consolidated balance sheets of the Company and its Subsidiaries as of December 31 in each of the years 1995 through 1998, and the related audited consolidated statements of income, statements of cash flow and changes in Shareholders' equity of the Company and its Subsidiaries for the fiscal years then ended, together with the respective reports thereon of KPMG LLP. These audited financial statements of the Company were included or incorporated by reference in the SEC Reports (collectively, including the footnotes thereto, the "SEC Financial Statements"), were prepared in accordance with GAAP (except as otherwise stated in the SEC Financial Statements or in the related reports of the Company's independent accountants) and present fairly the consolidated financial position of the Company and its subsidiaries as at the dates thereof, and the results of operations, changes in financial position and statements of Shareholders' equity of the Company and its Subsidiaries for the periods indicated. No event has occurred since the Balance Sheet Date that would require a restatement of the SEC Financial Statements under GAAP other than by reason of a change in GAAP. The SEC Financial Statements reflect, and on the Closing Date will reflect, the interest of the Company in the assets, liabilities and operations of all Subsidiaries of the Company.
(c) Neither the Company nor any of its Subsidiaries has any material liability, obligation or commitment of any nature whatsoever (whether known or unknown due or to become due, accrued, fixed, contingent, liquidated, unliquidated or otherwise) other than liabilities, obligations or commitments (i) which are accrued or reserved against in the consolidated balance sheet of the Company and its consolidated subsidiaries as of December 31, 1999 included in the Audited Financial Statements or reflected in the notes thereto, (ii)(x) which arose in the ordinary course of business since such date and (y) which do not or would not individually or in the aggregate have a Material Adverse Effect, or (iii) which are of the type that would not be required to be reflected on a consolidated balance sheet of the Company and its Subsidiaries or in the notes thereto if such balance sheet were prepared in accordance with GAAP as of the date thereof or as of the Closing Date, as the case may be.
(d) Except as set forth on Schedule 5.25(d), since the date of the Company's 1999 Proxy Statement to the date hereofIn addition, the Company has not entered into or otherwise become obligated with respect agreed that, for so long as any Notes remain outstanding, it will furnish to any transactions which would require disclosure the Holders and to securities analysts and prospective investors, upon their request, the information required to be delivered pursuant to Item 404 of Regulation S-K in accordance with Items 7(bRule 144A(d) or (c4) of Schedule 14A under the Exchange Securities Act. The Company will at all times comply with Trust Indenture Act were a Company proxy statement to be distributed as of the date hereofSection 314(a).
Appears in 2 contracts
Sources: Indenture (Leasehold Resource Group LLC), Indenture (SHG Holding Solutions Inc)
SEC Reports. (a) The Company has filed all required reports, schedules, forms, reports statements and other documents required to be filed by the Company under the Exchange Act, including pursuant to Section 13(a) or 15(d) thereof, for the two years preceding the date hereof (the foregoing materials, including the exhibits thereto and documents with incorporated by reference therein, being collectively referred to herein as the SEC since December 31, 1995 (collectively, the "“SEC Reports")”) on a timely basis or has received a valid extension of such time of filing and has filed any such SEC Reports prior to the expiration of any such extension. Other than as disclosed to the Purchasers with respect to the calculation of the Company’s fully-diluted earnings per share, except that the Company will file a Notification as of Late Filing on Form 126-25 notifying the SEC that its Form 10-K for its 1999 fiscal year could not be filed within the prescribed time period. Each of their respective dates, the SEC Reports has complied in all material respects with all applicable the requirements of the Securities Act and the Exchange Act, each as in effect on applicable, and none of the dates so filed. None of such forms, reports or documents, including, without limitation, any financial statements or schedules included or incorporated by reference therein, containedSEC Reports, when filed, contained any untrue statement of a material fact or omitted to state a material fact required to be stated or incorporated by reference therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. The Company has heretofore made available or promptly will make available Other than as disclosed to the Purchaser, a complete and correct copy of any amendment Purchasers with respect to the SEC Reports. None calculation of the Subsidiaries of Company’s fully-diluted earnings per share, the Company is required to file any reports, statements, forms or other documents with the SEC.
(b) The SEC Reports contain audited consolidated balance sheets of the Company and its Subsidiaries as of December 31 in each of the years 1995 through 1998, and the related audited consolidated statements of income, statements of cash flow and changes in Shareholders' equity of the Company and its Subsidiaries for the fiscal years then ended, together with the respective reports thereon of KPMG LLP. These audited financial statements of the Company were included or incorporated by reference in the SEC Reports (collectivelycomply in all material respects with applicable accounting requirements and the rules and regulations of the Commission with respect thereto as in effect at the time of filing. Other than as disclosed to the Purchasers with respect to the calculation of the Company’s fully-diluted earnings per share, including the footnotes thereto, the "SEC Financial Statements"), were such financial statements have been prepared in accordance with GAAP United States generally accepted accounting principles applied on a consistent basis during the periods involved (“GAAP”), except as may be otherwise stated specified in such financial statements or the SEC Financial Statements or notes thereto and except to the extent that unaudited financial statements may not contain all footnotes required by GAAP, and such statements fairly present in all material respects the related reports of the Company's independent accountants) and present fairly the consolidated financial position of the Company and its subsidiaries as at the dates thereof, and the results of operations, changes in financial position and statements of Shareholders' equity of the Company and its Subsidiaries for the periods indicated. No event has occurred since the Balance Sheet Date that would require a restatement of the SEC Financial Statements under GAAP other than by reason of a change in GAAP. The SEC Financial Statements reflect, and on the Closing Date will reflect, the interest of the Company in the assets, liabilities and operations of all Subsidiaries of the Company.
(c) Neither the Company nor any of its Subsidiaries has any material liability, obligation or commitment of any nature whatsoever (whether known or unknown due or to become due, accrued, fixed, contingent, liquidated, unliquidated or otherwise) other than liabilities, obligations or commitments (i) which are accrued or reserved against in the consolidated balance sheet of the Company and its consolidated subsidiaries as of December 31and for the dates thereof and the results of operations and cash flows for the periods then ended, 1999 included subject, in the Audited Financial Statements or reflected case of unaudited statements, to normal, immaterial, year-end audit adjustments. The Company’s independent registered public accounting firm is identified in the notes theretoAnnual Report on Form 10-K for the fiscal year ended September 30, 2012 (ii)(x) which arose in the ordinary course of business since such date and (y) which do not or would not individually or in the aggregate have a Material Adverse Effect, or (iii) which are of the type that would not be required to be reflected on a consolidated balance sheet of the Company and its Subsidiaries or in the notes thereto if such balance sheet were prepared in accordance with GAAP as of the date thereof or as of the Closing Date, as the case may be.
(d) Except as set forth on Schedule 5.25(d“2012 Form 10-K”), since the date of the Company's 1999 Proxy Statement to the date hereof, the Company has not entered into or otherwise become obligated with respect to any transactions which would require disclosure pursuant to Item 404 of Regulation S-K in accordance with Items 7(b) or (c) of Schedule 14A under and such accounting firm is a registered public accounting firm as required by the Exchange Act were a Company proxy statement to be distributed as of the date hereofAct.
Appears in 2 contracts
Sources: Securities Purchase Agreement (Aeolus Pharmaceuticals, Inc.), Securities Purchase Agreement (Aeolus Pharmaceuticals, Inc.)
SEC Reports. (a) The Except with respect to certain matters addressed in the letter received from the staff of the Division of Corporation Finance of the SEC (the “SEC Staff”), dated September 6, 2012, the Company has filed with or otherwise furnished to the SEC all required material forms, reports reports, schedules, statements and other documents that it is required to file or furnish under the Securities Act or the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder (the “Exchange Act”) since February 25, 2012 (such documents, as supplemented or amended since the time of filing, and together with all information incorporated by reference therein, the “SEC Reports”). No Subsidiary of the Company is required to file with the SEC since December 31any such forms, 1995 reports, schedules, statements or other documents pursuant to Section 13 or 15 of the Exchange Act. As of their respective effective dates (collectively, in the "case of SEC Reports that are registration statements filed pursuant to the requirements of the Securities Act) and as of their respective filing dates (in the case of all other SEC Reports"), except that as and to the Company will file a Notification extent modified, amended, restated, corrected, updated or superseded by any subsequent SEC Report filed and publicly available prior to the date of Late Filing on Form 126-25 notifying the SEC that its Form 10-K for its 1999 fiscal year could not be filed within the prescribed time period. Each of this Agreement, the SEC Reports has (i) complied in all material respects with all the applicable requirements of the Securities Act and the Exchange Act, each as in effect on the dates so filed. None of such forms, reports or documents, including, without limitation, any financial statements or schedules included or incorporated by reference therein, contained, when filed, and (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 therein, in light of the circumstances under which they were made, not misleading. The Company has heretofore made available or promptly will make available to the Purchaser, a complete and correct copy of any amendment to the SEC Reports. None of the Subsidiaries of the Company is required to file any reports, statements, forms or other documents with the SEC.
(b) The SEC Reports contain audited consolidated balance sheets Company maintains a system of “internal controls over financial reporting” (as defined in Rules 13a-15(f) and 15a-15(f) under the Exchange Act) that provides reasonable assurance regarding the reliability of the Company’s financial reporting and the preparation of the Company’s financial statements for external purposes in accordance with United States generally accepted accounting principles as in effect from time to time (“GAAP”) and that 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 and its Subsidiaries as of December 31 in each of the years 1995 through 1998, and the related audited consolidated statements of income, statements of cash flow and changes in Shareholders' equity of the Company and its Subsidiaries for the fiscal years then ended, together with the respective reports thereon of KPMG LLP. These audited financial statements of the Company were included or incorporated by reference in the SEC Reports (collectively, including the footnotes thereto, the "SEC Financial Statements"), were prepared are being made only in accordance with GAAP (except as otherwise stated in the SEC Financial Statements or in the related reports authorizations of management and directors of the Company's independent accountants) and present fairly the consolidated financial position of the Company and its subsidiaries as at the dates thereof, and the results (iii) provide reasonable assurance regarding prevention or timely detection of operationsunauthorized acquisition, changes in financial position and statements of Shareholders' equity of the Company and its Subsidiaries for the periods indicated. No event has occurred since the Balance Sheet Date that would require a restatement of the SEC Financial Statements under GAAP other than by reason of a change in GAAP. The SEC Financial Statements reflectuse, and on the Closing Date will reflect, the interest of the Company in the assets, liabilities and operations of all Subsidiaries or disposition of the Company’s assets that could have a material effect on the Company’s financial statements.
(c) Neither The Company maintains a system of “disclosure controls and procedures” (as defined in Rules 13a-15(e) and 15d-15(e) under the Exchange Act) that is reasonably designed to ensure that information required to be disclosed by the Company nor any of its Subsidiaries has any material liability, obligation or commitment of any nature whatsoever (whether known or unknown due or to become due, accrued, fixed, contingent, liquidated, unliquidated or otherwise) other than liabilities, obligations or commitments (i) which are accrued or reserved against in the consolidated balance sheet 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 information relating to the Company is accumulated and communicated to the Company’s management as appropriate to allow timely decisions regarding required disclosure and to make the certifications of the Chief Executive Officer and Chief Financial Officer of the Company and its consolidated subsidiaries as of December 31, 1999 included in required under the Audited Financial Statements or reflected in the notes thereto, (ii)(x) which arose in the ordinary course of business since Exchange Act with respect to such date and (y) which do not or would not individually or in the aggregate have a Material Adverse Effect, or (iii) which are of the type that would not be required to be reflected on a consolidated balance sheet of the Company and its Subsidiaries or in the notes thereto if such balance sheet were prepared in accordance with GAAP as of the date thereof or as of the Closing Date, as the case may bereports.
(d) Except as set forth on Schedule 5.25(d)Since January 1, since the date of the Company's 1999 Proxy Statement to the date hereof2010, the Company has not entered into or otherwise become obligated with respect received any written or, to any transactions which would require disclosure pursuant the knowledge of the Company, oral notification of a “material weakness” in the Company’s internal controls over financial reporting. The term “material weakness” shall have the meaning assigned to Item 404 it in the Statements of Regulation S-K Auditing Standards 112 and 115, as in accordance with Items 7(b) or (c) of Schedule 14A under the Exchange Act were a Company proxy statement to be distributed as of effect on the date hereof.
Appears in 2 contracts
Sources: Class a Common Stock and Convertible Preferred Stock Subscription Agreement, Subscription Agreement (William Lyon Homes)
SEC Reports. (a) The Except as set forth in Section 3.7 of the Company Disclosure Schedule, the Company has filed timely, or will file timely, all required forms, and reports and documents with the SEC since December 31January 1, 1995 2004 (including any forms or reports filed with the SEC subsequent to the date of this Agreement) (collectively, the "“Company SEC Reports"”), except that all of which were prepared or will be prepared in all material respects in accordance with the applicable requirements of the Exchange Act, the Securities Act and the rules and regulations promulgated thereunder (the “Securities Laws”). As of their respective dates, the Company will file a Notification of Late Filing on Form 126-25 notifying the SEC that its Form 10-K for its 1999 fiscal year could not be filed within the prescribed time period. Each of the SEC Reports has complied (a) complied, or with respect to those Company SEC Reports not yet filed will comply, as to form in all material respects with all the applicable requirements of the Securities Act Laws and the Exchange Act(b) did not contain, each as in effect on the dates so filed. None of such forms, reports or documents, including, without limitation, any financial statements or schedules included or incorporated by reference therein, contained, when filedwith respect to those Company SEC Reports not yet filed will 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 the light of the circumstances under which they were made, not misleading. The Company has heretofore made available or promptly will make available to the Purchaser, a complete and correct copy of any amendment to the SEC Reports. None Each of the Subsidiaries of the Company is required to file any reports, statements, forms or other documents with the SEC.
(b) The SEC Reports contain audited consolidated balance sheets of the Company and its Subsidiaries as of December 31 included in each of the years 1995 through 1998, and the related audited consolidated statements of income, statements of cash flow and changes in Shareholders' equity of the Company and its Subsidiaries for the fiscal years then ended, together with the respective reports thereon of KPMG LLP. These audited financial statements of the Company were included or incorporated by reference in into the Company SEC Reports (collectively, including the footnotes theretorelated notes and schedules) fairly presents, the "SEC Financial Statements")or will fairly present, were prepared in accordance with GAAP (except as otherwise stated in the SEC Financial Statements or in the related reports of the Company's independent accountants) and present fairly all material respects, the consolidated financial position of the Company and the Company Subsidiaries as of its subsidiaries as at date and each of the dates thereofconsolidated statements of income, retained earnings and cash flows of the Company included in or incorporated by reference into the Company SEC Reports (including any related notes and schedules) fairly presents, or will fairly present, in all material respects, the results of operations, changes in financial position and statements of Shareholders' equity of the Company and its Subsidiaries for the periods indicated. No event has occurred since the Balance Sheet Date that would require a restatement of the SEC Financial Statements under GAAP other than by reason of a change in GAAP. The SEC Financial Statements reflect, and on the Closing Date will reflect, the interest of the Company in the assets, liabilities and operations of all Subsidiaries of the Company.
(c) Neither the Company nor any of its Subsidiaries has any material liability, obligation retained earnings or commitment of any nature whatsoever (whether known or unknown due or to become due, accrued, fixed, contingent, liquidated, unliquidated or otherwise) other than liabilities, obligations or commitments (i) which are accrued or reserved against in the consolidated balance sheet of the Company and its consolidated subsidiaries as of December 31, 1999 included in the Audited Financial Statements or reflected in the notes thereto, (ii)(x) which arose in the ordinary course of business since such date and (y) which do not or would not individually or in the aggregate have a Material Adverse Effect, or (iii) which are of the type that would not be required to be reflected on a consolidated balance sheet of the Company and its Subsidiaries or in the notes thereto if such balance sheet were prepared in accordance with GAAP as of the date thereof or as of the Closing Datecash flows, as the case may be, of the Company and the Company Subsidiaries for the periods set forth therein, in each case in accordance with GAAP consistently applied during the periods involved, except as may be noted therein and except, in the case of the unaudited statements, as permitted by Form 10-Q pursuant to Sections 13 or 15(d) of the Exchange Act and for normal year-end audit adjustments which would not be material in amount or effect.
(db) The records, systems, controls, data and information of the Company and the Company Subsidiaries are recorded, stored, maintained and operated under means that are under the exclusive ownership and direct control of the Company or the Company Subsidiaries, except for any non-exclusive ownership and non-direct control that would not have a Company Material Adverse Effect with respect to the system of internal accounting controls described in the following sentence. Except as set forth would not have a Company Material Adverse Effect, the Company and the Company Subsidiaries have devised and maintain a system of internal accounting controls sufficient to provide reasonable assurances regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with GAAP, including that: (1) transactions are executed only in accordance with management’s authorization; (2) transactions are recorded as necessary to permit preparation of the financial statements of the Company and the Company Subsidiaries and to maintain accountability for the assets of the Company and the Company Subsidiaries; (3) access to such assets is permitted only in accordance with management’s authorization; (4) the reporting of such assets is compared with existing assets at regular intervals; and (5) accounts, notes and other receivables and inventory are recorded accurately, and proper and adequate procedures are implemented to effect the collection thereof on Schedule 5.25(da current and timely basis (“Internal Controls”). Except as would not have a Company Material Adverse Effect, since each of the Company and the Company Subsidiaries (x) has designed disclosure controls and procedures (within the meaning of Rules 13a-15(e) and 15d-15(e) of the Exchange Act) to ensure that material information relating to such entity and its subsidiaries is made known to the management of such entity by others within those entities as appropriate to allow timely decisions regarding required disclosure and to make the certifications required by the Exchange Act with respect to the Company SEC Reports, and (y) has disclosed, based on its most recent evaluation prior to the date of this Agreement, to its auditors and the Company's 1999 Proxy Statement audit committee of its board of trustees (A) any significant deficiencies in the design or operation of Internal Controls which could adversely affect its ability to the date hereofrecord, the Company has process, summarize and report financial data and have disclosed to its auditors any material weaknesses in Internal Controls and (B) any fraud, whether or not entered into material, that involves management or otherwise become obligated with respect to any transactions which would require disclosure pursuant to Item 404 of Regulation S-K other employees who have a significant role in accordance with Items 7(b) or (c) of Schedule 14A under the Exchange Act were a Company proxy statement to be distributed as of the date hereofits Internal Controls.
Appears in 2 contracts
Sources: Merger Agreement (Geo Group Inc), Merger Agreement (CentraCore Properties Trust)
SEC Reports. (aNotwithstanding that the Company may not be required to be or remain subject to the reporting requirements of Section 13(a) The Company has filed all required formsor 15(d) of the Exchange Act, reports and documents with the SEC since December 31, 1995 (collectively, the "SEC Reports"), except that the Company will file a Notification of Late Filing on Form 126-25 notifying with the SEC that its Form 10-K for its 1999 fiscal year could (unless such filing is not be filed within the prescribed time period. Each of the SEC Reports has complied in all material respects with all applicable requirements of the Securities Act and permitted under the Exchange ActAct or by the SEC), each so long as in effect on the dates so filed. None of such formsNotes are Outstanding, the annual reports, information, documents and other reports or documents, including, without limitation, any financial statements or schedules included or incorporated by reference therein, contained, when filed, any untrue statement of a material fact or omitted to state a material fact required to be stated or incorporated by reference 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 heretofore made available or promptly will make available to the Purchaser, a complete and correct copy of any amendment to the SEC Reports. None of the Subsidiaries of that the Company is required to file any reports, statements, forms or other documents with the SEC.
SEC pursuant to such Section 13(a) or 15(d) or would be so required to file if the Company were so subject. The Company will also, within 15 days after the date on which the Company was so required to file or would be so required to file if the Company were so subject, transmit by mail to all Holders (as their names and addresses appear in the Note Register), and to the Trustee (or make available on a Company website) copies of any such information, documents and reports (without exhibits) so required to be filed. Notwithstanding the foregoing, if any audited or reviewed financial statements or information required to be included in any such filing are not reasonably available on a timely basis as a result of the Company’s accountants not being “independent” (as defined pursuant to the Exchange Act and the rules and regulations of the SEC thereunder), the Company may, in lieu of making such filing or transmitting or making available the information, documents and reports so required to be filed, elect to make a filing on an alternative form or transmit or make available unaudited or unreviewed financial statements or information substantially similar to such required audited or reviewed financial statements or information, provided that (a) the Company shall in any event be required to make such filing and so transmit or make available such audited or reviewed financial statements or information no later than the first anniversary of the date on which the same was otherwise required pursuant to the preceding provisions of this Section 405 (such initial date, the “Reporting Date”) and (b) The SEC Reports contain audited consolidated balance sheets of if the Company makes such an election and its Subsidiaries as of December 31 in each of the years 1995 through 1998, and the related audited consolidated statements of income, statements of cash flow and changes in Shareholders' equity of the Company and its Subsidiaries for the fiscal years then ended, together with the respective reports thereon of KPMG LLP. These audited financial statements of the Company were included or incorporated by reference in the SEC Reports (collectively, including the footnotes thereto, the "SEC Financial Statements"), were prepared in accordance with GAAP (except as otherwise stated in the SEC Financial Statements or in the related reports of the Company's independent accountants) and present fairly the consolidated financial position of the Company and its subsidiaries as at the dates thereof, and the results of operations, changes in financial position and statements of Shareholders' equity of the Company and its Subsidiaries for the periods indicated. No event such filing has occurred since the Balance Sheet Date that would require a restatement of the SEC Financial Statements under GAAP other than by reason of a change in GAAP. The SEC Financial Statements reflect, and on the Closing Date will reflect, the interest of the Company in the assets, liabilities and operations of all Subsidiaries of the Company.
(c) Neither the Company nor any of its Subsidiaries has any material liability, obligation or commitment of any nature whatsoever (whether known or unknown due or to become due, accrued, fixed, contingent, liquidated, unliquidated or otherwise) other than liabilities, obligations or commitments (i) which are accrued or reserved against in the consolidated balance sheet of the Company and its consolidated subsidiaries as of December 31, 1999 included in the Audited Financial Statements or reflected in the notes thereto, (ii)(x) which arose in the ordinary course of business since such date and (y) which do not or would not individually or in the aggregate have a Material Adverse Effectbeen made, or (iii) which are of the type that would such information, documents and reports have not be required to be reflected on a consolidated balance sheet of the Company and its Subsidiaries been transmitted or in the notes thereto if such balance sheet were prepared in accordance with GAAP as of the date thereof or as of the Closing Datemade available, as the case may be.
(d) Except as set forth , within 90 days after such Reporting Date, liquidated damages will accrue on Schedule 5.25(d), since the Notes at a rate of 0.50% per annum from the date that is 90 days after such Reporting Date to the earlier of (x) the date on which such filing has been made, or such information, documents and reports have been transmitted or made available, as the case may be, and (y) the first anniversary of such Reporting Date (provided that not more than 0.50% per annum in liquidated damages shall be payable for any period regardless of the number of such elections by the Company's 1999 Proxy Statement ). The Company will be deemed to have satisfied the date hereofrequirements of this Section 405 if any Parent files and provides reports, documents and information of the types otherwise so required, in each case within the applicable time periods, and the Company has is not entered into or otherwise become obligated with respect required to file such reports, documents and information separately under the applicable rules and regulations of the SEC (after giving effect to any transactions which would require disclosure pursuant to Item 404 of Regulation S-K in accordance with Items 7(bexemptive relief) or (c) of Schedule 14A under the Exchange Act were a Company proxy statement to be distributed as because of the date hereoffilings by such Parent. The Company also will comply with the other provisions of TIA § 314(a).
Appears in 2 contracts
Sources: Indenture (Hertz Global Holdings Inc), Indenture (Hertz Global Holdings Inc)
SEC Reports. (aNotwithstanding that the Company may not be required to be or remain subject to the reporting requirements of Section 13(a) The Company has filed all required formsor 15(d) of the Exchange Act, reports and documents with the SEC since December 31, 1995 (collectively, the "SEC Reports"), except that the Company will file a Notification of Late Filing on Form 126-25 notifying with the SEC that its Form 10-K for its 1999 fiscal year could (unless such filing is not be filed within the prescribed time period. Each of the SEC Reports has complied in all material respects with all applicable requirements of the Securities Act and permitted under the Exchange ActAct or by the SEC), each so long as in effect on the dates so filed. None of such formsNotes are Outstanding, the annual reports, information, documents and other reports or documents, including, without limitation, any financial statements or schedules included or incorporated by reference therein, contained, when filed, any untrue statement of a material fact or omitted to state a material fact required to be stated or incorporated by reference 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 heretofore made available or promptly will make available to the Purchaser, a complete and correct copy of any amendment to the SEC Reports. None of the Subsidiaries of that the Company is required to file any reports, statements, forms or other documents with the SEC.
SEC pursuant to such Section 13(a) or 15(d) or would be so required to file if the Company were so subject. If, at any time, any audited or reviewed financial statements or information required to be included in any such filing are not reasonably available on a timely basis as a result of the Company’s accountants not being “independent” (as defined pursuant to the Exchange Act and the rules and regulations of the SEC thereunder), the Company may, in lieu of making such filing or transmitting or making available the information, documents and reports so required to be filed, elect to make a filing on an alternative form or transmit or make available unaudited or unreviewed financial statements or information substantially similar to such required audited or reviewed financial statements or information, provided that (a) the Company shall in any event be required to make such filing and so transmit or make available such audited or reviewed financial statements or information no later than the first anniversary of the date on which the same was otherwise required pursuant to the preceding provisions of this paragraph (such initial date, the “Reporting Date”) and (b) The SEC Reports contain audited consolidated balance sheets of if the Company makes such an election and its Subsidiaries as of December 31 in each of the years 1995 through 1998, and the related audited consolidated statements of income, statements of cash flow and changes in Shareholders' equity of the Company and its Subsidiaries for the fiscal years then ended, together with the respective reports thereon of KPMG LLP. These audited financial statements of the Company were included or incorporated by reference in the SEC Reports (collectively, including the footnotes thereto, the "SEC Financial Statements"), were prepared in accordance with GAAP (except as otherwise stated in the SEC Financial Statements or in the related reports of the Company's independent accountants) and present fairly the consolidated financial position of the Company and its subsidiaries as at the dates thereof, and the results of operations, changes in financial position and statements of Shareholders' equity of the Company and its Subsidiaries for the periods indicated. No event such filing has occurred since the Balance Sheet Date that would require a restatement of the SEC Financial Statements under GAAP other than by reason of a change in GAAP. The SEC Financial Statements reflect, and on the Closing Date will reflect, the interest of the Company in the assets, liabilities and operations of all Subsidiaries of the Company.
(c) Neither the Company nor any of its Subsidiaries has any material liability, obligation or commitment of any nature whatsoever (whether known or unknown due or to become due, accrued, fixed, contingent, liquidated, unliquidated or otherwise) other than liabilities, obligations or commitments (i) which are accrued or reserved against in the consolidated balance sheet of the Company and its consolidated subsidiaries as of December 31, 1999 included in the Audited Financial Statements or reflected in the notes thereto, (ii)(x) which arose in the ordinary course of business since such date and (y) which do not or would not individually or in the aggregate have a Material Adverse Effectbeen made, or (iii) which are of the type that would such information, documents and reports have not be required to be reflected on a consolidated balance sheet of the Company and its Subsidiaries been transmitted or in the notes thereto if such balance sheet were prepared in accordance with GAAP as of the date thereof or as of the Closing Datemade available, as the case may be.
(d) Except as set forth , within 90 days after such Reporting Date, liquidated damages will accrue on Schedule 5.25(d), since the Notes at a rate of 0.50% per annum from the date that is 90 days after such Reporting Date to the earlier of (x) the date on which such filing has been made, or such information, documents and reports have been transmitted or made available, as the case may be, and (y) the first anniversary of such Reporting Date (provided that not more than 0.50% per annum in liquidated damages shall be payable for any period regardless of the number of such elections by the Company's 1999 Proxy Statement ). The Trustee shall have no independent responsibility to determine if liquidated damages are due or the date hereofamount of any such liquidated damages. Notwithstanding the foregoing, the Company has shall not entered into be required to file or cause to be filed with the SEC or transmit or make available (or to make any filing with the SEC that would be required to include) separate financial statements of any Subsidiary solely as a result of the inclusion of any class of securities of any such Subsidiary in the Collateral. The Company will be deemed to have satisfied the requirements of this Section 405 if any Parent files and provides reports, documents and information of the types otherwise become obligated with respect so required, in each case within the applicable time periods, and the Company is not required to file such reports, documents and information separately under the applicable rules and regulations of the SEC (after giving effect to any transactions which would require disclosure pursuant exemptive relief) because of the filings by such Parent. The Company also will comply with the other provisions of TIA § 314(a). Subject to Item 404 Article VII, delivery of Regulation S-K in accordance with Items 7(b) reports, information and documents to the Trustee under this Section 405 is for informational purposes only and the Trustee’s receipt (or (cconstructive receipt) of Schedule 14A under the Exchange Act were a foregoing shall not constitute constructive notice of any information contained therein or determinable from information contained therein, including the Company’s compliance with any of its covenants hereunder (as to which the Trustee is entitled to rely exclusively on an Officer’s Certificate). Subject to Article VII, the Trustee is not obligated to confirm that the Company proxy statement has complied with its obligations contained in this Section 405 to be distributed as of file such reports with the date hereofSEC or post such reports and information on its website.
Appears in 2 contracts
Sources: Indenture (Hd Supply, Inc.), Indenture (Hd Supply, Inc.)
SEC Reports. (a) The Since April 29, 2015 (the “Reference Date”), the Company has filed or furnished (as applicable) all required forms, reports reports, schedules, statements and documents with the SEC since December 31that have been required to be so filed or furnished (as applicable) by it under Applicable Law at or prior to the time so required, 1995 (collectivelyincluding any amendments or supplements thereto, and, after the "SEC Reports")date of this Agreement and until the Effective Time, except that the Company will file a Notification of Late Filing on Form 126-25 notifying all forms, reports, schedules, statements and documents with the SEC that its Form 10-K for its 1999 fiscal year could not are required to be filed within by it under Applicable Law at or prior to the prescribed time period. so required, including any amendments or supplements thereto (all such forms, reports, schedules, statements and documents, as amended or supplemented, filed or furnished since the Reference Date, together with any other forms, reports, schedules, statements or other documents filed or furnished (as applicable) by the Company with the SEC at or prior to the Effective Time that are not required to be so filed or furnished, the “SEC Reports”).
(b) Each SEC Report filed prior to the date hereof (or if amended prior to the date hereof, as of the date of the last such amendment) complied, or, in the case of SEC Reports has complied in all material respects filed after date hereof and prior to the Effective Time, will comply, as the case may be, as of its filing date, as to form with all the applicable requirements of the Securities Act and Act, the Exchange Act, or the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act, as the case may be, and applicable rules and regulations promulgated thereunder, each as in effect on the dates so filedfiling date (or if amended prior to the date hereof, as of the date of the last such amendment), in all material respects. None True, correct and complete copies of all SEC Reports are publicly available in the Electronic Data Gathering, Analysis and Retrieval database of the SEC. As of its filing date (or in the case of a registration statement under the Securities Act, at the time it was declared effective), each SEC Report (or if amended prior to the date hereof, as of the date of the last such formsamendment) did not, reports or documentsand will not, includingin the case of any SEC Report filed after the date hereof and prior to the Effective Time, without limitation, any financial statements or schedules included or incorporated by reference therein, contained, when filed, contain any untrue statement of a material fact or omitted omit to state a any material fact required to be stated or incorporated by reference therein or necessary in order to make the statements made therein, in the light of the circumstances under which they were made, not misleading. The .
(c) Since the Reference Date, neither the Company nor any of its Subsidiaries has heretofore made available received from the SEC or promptly will make available any other Governmental Authority any written comments or questions with respect to any of the SEC Reports (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 Authority that such SEC Reports (including the financial statements included therein) or registration statements are being reviewed or investigated, and, to the Purchaserknowledge of the Company, a complete and correct copy there is not, as of the date of this Agreement, any investigation or review being conducted by the SEC or any other Governmental Authority of any amendment to SEC Reports (including the SEC Reports. financial statements included therein), except in each case for such comments, questions, notices, investigations or reviews which have been fully resolved.
(d) None of the Company’s Subsidiaries of is (or since the Company is Reference Date has been) required to file any forms, reports, statementsschedules, forms statements or other documents with the SEC.
(be) The SEC Reports contain audited consolidated balance sheets Since the Reference Date, no executive officer of the Company and its Subsidiaries as has failed to make the certifications required of December 31 in each him or her under Section 302 or 906 of the years 1995 through 1998▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act with respect to any SEC Report, Table of Contents except as disclosed in certifications filed with the SEC Reports, and at the related audited consolidated statements time of incomefiling or submission of each such certification, statements of cash flow such certification was true and changes in Shareholders' equity of the Company accurate and its Subsidiaries for the fiscal years then ended, together complied with the respective reports thereon of KPMG LLP▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act. These audited financial statements of Since the Company were included or incorporated by reference in the SEC Reports (collectivelyReference Date, including the footnotes thereto, the "SEC Financial Statements"), were prepared in accordance with GAAP (except as otherwise stated in the SEC Financial Statements or in the related reports of the Company's independent accountants) and present fairly the consolidated financial position of the Company and its subsidiaries as at the dates thereof, and the results of operations, changes in financial position and statements of Shareholders' equity of the Company and its Subsidiaries for the periods indicated. No event has occurred since the Balance Sheet Date that would require a restatement of the SEC Financial Statements under GAAP other than by reason of a change in GAAP. The SEC Financial Statements reflect, and on the Closing Date will reflect, the interest of the Company in the assets, liabilities and operations of all Subsidiaries of the Company.
(c) Neither neither the Company nor any of its Subsidiaries executive officers has received notice from any material liabilityGovernmental Authority challenging or questioning the accuracy, obligation completeness, form or commitment manner of any nature whatsoever (whether known or unknown due or to become due, accrued, fixed, contingent, liquidated, unliquidated or otherwise) other than liabilities, obligations or commitments (i) which are accrued or reserved against in the consolidated balance sheet filing of the Company and its consolidated subsidiaries as of December 31, 1999 included in the Audited Financial Statements or reflected in the notes thereto, (ii)(x) which arose in the ordinary course of business since such date and (y) which do not or would not individually or in the aggregate have a Material Adverse Effect, or (iii) which are of the type that would not be required to be reflected on a consolidated balance sheet of the Company and its Subsidiaries or in the notes thereto if such balance sheet were prepared in accordance with GAAP as of the date thereof or as of the Closing Date, as the case may becertifications.
(df) Except as set forth on Schedule 5.25(d), since The Company is in compliance in all material respects with the date applicable listing and corporate governance rules and regulations of the Company's 1999 Proxy Statement to the date hereof, the Company has not entered into or otherwise become obligated with respect to any transactions which would require disclosure pursuant to Item 404 of Regulation S-K in accordance with Items 7(b) or (c) of Schedule 14A under the Exchange Act were a Company proxy statement to be distributed as of the date hereofNasdaq.
Appears in 2 contracts
SEC Reports. (a) The Company has filed all required forms, reports and other documents with the SEC required to be filed or furnished by the Company since December 31, 1995 2003 (collectivelysuch documents, together with any reports filed during such period by the Company with the SEC on a voluntary basis on Form 8-K, the "“Company SEC Reports"”). As of their respective filing dates, except that the Company will file a Notification of Late Filing on Form 126-25 notifying the SEC that its Form 10-K for its 1999 fiscal year could not be filed within the prescribed time period. Each of the SEC Reports has (i) complied in all material respects with all with, to the extent in effect at the time of filing, the applicable requirements of the Securities Act and the Exchange Act, each as in effect on the dates so filed. None of such forms, reports or documents, including, without limitation, any financial statements or schedules included or incorporated by reference therein, contained, when filed, Act and (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 therein, in light of the circumstances under which they were made, not misleading. The Company has heretofore made available or promptly will make available to the Purchaser, a complete and correct copy of any amendment to the SEC Reports. None Each of the Subsidiaries financial statements (including the related notes) of the Company included in the Company SEC Reports complied at the time it was filed as to form 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 such filing, was prepared in accordance with generally accepted accounting principles in the United States (“GAAP”) (except, in the case of unaudited 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 respective dates thereof and the consolidated results of their operations and cash flows for the respective periods then ended (subject, in the case of unaudited statements, to normal year-end adjustments). As the date of this Agreement, there are no outstanding comment letters or requests for information from the SEC with respect to any Company SEC Report. No Subsidiary is required to file any reportsform, statements, forms report or other documents document with the SEC.
(b) The Company has timely filed or furnished 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 S▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002) with respect to any Company SEC Reports contain audited consolidated balance sheets of Report. The Company maintains disclosure controls and procedures required by Rule 13a-15 or Rule 15d-15 under the Exchange Act; such controls and procedures are designed to ensure and are effective to provide reasonable assurance that all material information concerning the Company and its Subsidiaries as of December 31 in each of is made known on a timely basis to the years 1995 through 1998, and the related audited consolidated statements of income, statements of cash flow and changes in Shareholders' equity of the Company and its Subsidiaries individuals responsible for the fiscal years then ended, together with the respective reports thereon of KPMG LLP. These audited financial statements of the Company were included or incorporated by reference in the SEC Reports (collectively, including the footnotes thereto, the "SEC Financial Statements"), were prepared in accordance with GAAP (except as otherwise stated in the SEC Financial Statements or in the related reports preparation of the Company's independent accountants) ’s SEC filings and present fairly the consolidated financial position of the Company and its subsidiaries as at the dates thereof, and the results of operations, changes in financial position and statements of Shareholders' equity of the Company and its Subsidiaries for the periods indicated. No event has occurred since the Balance Sheet Date that would require a restatement of the SEC Financial Statements under GAAP other than by reason of a change in GAAP. The SEC Financial Statements reflect, and on the Closing Date will reflect, the interest of the Company in the assets, liabilities and operations of all Subsidiaries of the Companypublic disclosure documents.
(c) Neither The Company has disclosed, based on prior evaluations of such disclosure controls and procedures prior to the Company nor any date hereof, to the Company’s auditors and the audit committee of its Subsidiaries has any material liability, obligation or commitment the Company’s board of any nature whatsoever (whether known or unknown due or to become due, accrued, fixed, contingent, liquidated, unliquidated or otherwise) other than liabilities, obligations or commitments directors (i) which are accrued or reserved against any significant deficiencies and material weaknesses in the consolidated balance sheet design or operation of internal controls over financial reporting that could adversely affect in any material respect the Company’s ability to record, process, summarize and report financial information, and (ii) any fraud, whether or not material, known to the Company and its consolidated subsidiaries as of December 31, 1999 included that involves management or other employees who have a significant role in the Audited Financial Statements or reflected in the notes thereto, (ii)(x) which arose in the ordinary course of business since such date and (y) which do not or would not individually or in the aggregate have a Material Adverse Effect, or (iii) which are of the type that would not be required to be reflected on a consolidated balance sheet of the Company and its Subsidiaries or in the notes thereto if such balance sheet were prepared in accordance with GAAP as Company’s internal controls over financial reporting. As of the date thereof hereof, the Company’s management has not notified the Company’s auditors and audit committee since the latest Report on Form 10-K of any significant deficiency, material weakness or as of the Closing Date, as the case may befraud.
(d) Except as set forth on Schedule 5.25(d), since the date of the Company's 1999 Proxy Statement to the date hereof, the The Company has not entered into or otherwise become obligated with respect to any transactions which would require disclosure pursuant to Item 404 of Regulation S-K accounted for its stock options in accordance with Items 7(bGAAP for the fiscal years ended December 31, 2004, 2005 and 2006. The Company does not have any program or practice in place to (i) time stock option grants to employees or directors with the release of material non-public information in a manner intended to improperly favor employees or directors or (cii) of Schedule 14A under set the Exchange Act were exercise prices in coordination with such release in a Company proxy statement manner intended to be distributed as of the date hereofimproperly favor employees or directors.
Appears in 2 contracts
Sources: Merger Agreement (Checkfree Corp \Ga\), Merger Agreement (Corillian Corp)
SEC Reports. (a) The Except as set forth in Section 4.8 of the Company Disclosure Schedule, the Company has timely filed (and, from the date hereof until the Closing Date, will timely file) all required forms, forms and reports (and documents all certificates required pursuant to the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002 (“SOX”)) with the SEC since December 31, 1995 2003 (collectively, the "“Company SEC Reports"”), except that all of which were (and will be) prepared in all material respects in accordance with the applicable requirements of the Exchange Act, the Securities Act and the rules and regulations promulgated thereunder (the “Securities Laws”). As of their respective dates, the Company will file a Notification of Late Filing on Form 126-25 notifying the SEC that its Form 10-K for its 1999 fiscal year could not be filed within the prescribed time period. Each of the SEC Reports has (a) complied as to form in all material respects with all the applicable requirements of the Securities Act Laws and the Exchange Act, each as in effect on the dates so filed. None of such forms, reports or documents, including, without limitation, any financial statements or schedules included or incorporated by reference therein, contained, when filed, (b) 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 the light of the circumstances under which they were made, not misleading. The Company has heretofore made available or promptly will make available to the Purchaser, a complete and correct copy of any amendment to the SEC Reports. None Each of the Subsidiaries of the Company is required to file any reports, statements, forms or other documents with the SEC.
(b) The SEC Reports contain audited consolidated balance sheets of the Company and its Subsidiaries as of December 31 included in each of the years 1995 through 1998, and the related audited consolidated statements of income, statements of cash flow and changes in Shareholders' equity of the Company and its Subsidiaries for the fiscal years then ended, together with the respective reports thereon of KPMG LLP. These audited financial statements of the Company were included or incorporated by reference in into the Company SEC Reports (collectively, including the footnotes theretorelated notes and schedules) complied as to form, as of their report filing dates, in all material respects with the "SEC Financial Statements"), were prepared Securities Laws and fairly presents in accordance with GAAP (except as otherwise stated in the SEC Financial Statements or in the related reports of the Company's independent accountants) and present fairly all material respects the consolidated financial position of the Company and the Company Subsidiaries as of its subsidiaries as at date and each of the dates thereofconsolidated statements of income, retained earnings and cash flows of the Company included in or incorporated by reference into the Company SEC Reports (including any related notes and schedules) fairly presents in all material respects the results of operations, changes in financial position and statements of Shareholders' equity retained earnings or cash flows, as the case may be, of the Company and its the Company Subsidiaries for the periods indicated. No event has occurred since set forth therein, in each case in accordance with GAAP consistently applied during the Balance Sheet Date that would require a restatement periods involved, except as may be noted therein and except, in the case of the unaudited statements, as permitted by Form 10-Q pursuant to Sections 13 or 15(d) of the Exchange Act and for normal year-end audit adjustments which would not be material in amount or effect. To the knowledge of the Company, there are no outstanding and unresolved comments from the SEC Financial Statements under GAAP other than by reason of a change in GAAP. The SEC Financial Statements reflect, and on the Closing Date will reflect, the interest with respect to any of the Company SEC Reports. No Company Subsidiary is required to make any filing with the SEC. The Company 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) and (f), respectively, of Rule 13a-15 under the assetsExchange Act) sufficient to provide reasonable assurance (i) that transactions are recorded as necessary to permit preparation of financial statements in conformity with United States generally accepted accounting principles (“US GAAP”), liabilities consistently applied, (ii) that transactions are executed only in accordance with the authorization of management and operations (iii) regarding prevention or timely detection of all Subsidiaries the unauthorized acquisition, use or disposition of the Company.
’s assets. As of December 31, 2005, (cx) Neither there were no “material weaknesses” (as defined by the Public Company Accounting Oversight Board) and (y) there was no series of multiple “significant deficiencies” (as defined by the Public Company Accounting Oversight Board) that was reasonably likely to collectively represent a “material weakness” in the design or operation of the Company’s internal controls. Since December 31, 2005, neither the Company nor any of its Subsidiaries has nor, to the Company’s knowledge, the Company’s independent auditors, have identified or been made aware of (A) any material liability, obligation or commitment of any nature whatsoever (whether known or unknown due or to become due, accrued, fixed, contingent, liquidated, unliquidated or otherwise) other than liabilities, obligations or commitments (i) which are accrued or reserved against weakness in the consolidated balance sheet system of internal controls utilized by the Company and its Subsidiaries, (B) any fraud, whether or not material, that involves the Company’s management or other employees who have a role in the preparation of financial statements or the internal controls utilized by the Company and its Subsidiaries or (C) any material claim or allegation regarding any of the foregoing. The “disclosure controls and procedures” (as defined in Rules 13a-15(e) and 15d-15(e) of the Exchange Act) utilized by the Company are reasonably designed to ensure that all information (both financial and non-financial) 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 information required to be disclosed is accumulated and communicated to the Company’s management 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 under the Exchange Act with respect to such reports. The Company has provided Eagles true and complete copies of all management letters received from its independent auditors since December 31, 2003, and if no such management letters have been received, the Company has provided copies of all correspondence from its independent auditors during such period relating to subject matter of the same type as would be included in a management letter. There are no liabilities of the Company or any of its subsidiaries of any kind whatsoever, known or unknown, whether or not accrued and whether or not contingent or absolute, other than (i) liabilities disclosed in the Company’s consolidated subsidiaries balance sheet as of December 31, 1999 2005 included in the Audited Financial Statements or reflected in Company’s Annual Report on Form 10-K for the notes thereto, fiscal year ended such date and (ii)(xii) which arose liabilities incurred in the ordinary course of business consistent with past practice since such date and (y) date, none of which do not or would not individually or are reasonably expected to result in the aggregate have a Material Adverse Effect, or (iii) which are of the type that would not be required to be reflected Effect on a consolidated balance sheet of the Company and its Subsidiaries or in the notes thereto if such balance sheet were prepared in accordance with GAAP as of the date thereof or as of the Closing Date, as the case may be.
(d) Except as set forth on Schedule 5.25(d), since the date of the Company's 1999 Proxy Statement to the date hereof, the Company has not entered into or otherwise become obligated with respect to any transactions which would require disclosure pursuant to Item 404 of Regulation S-K in accordance with Items 7(b) or (c) of Schedule 14A under the Exchange Act were a Company proxy statement to be distributed as of the date hereof.
Appears in 2 contracts
Sources: Merger Agreement (Sunset Financial Resources Inc), Agreement and Plan of Merger (Sunset Financial Resources Inc)
SEC Reports. (a) The Company has filed all required forms, reports and documents on a timely basis with the SEC all SEC Reports. The SEC Reports constitute all of the documents required to be filed by the Company with the Commission under Section 13 or 14 of the Exchange Act since December 31, 1995 (collectively, 2007. Each SEC Report other than the "SEC Reports"), except that the Company will file a Notification of Late Filing on Form 126-25 notifying the SEC that its First Quarter Form 10-K for its 1999 fiscal year could not be filed within the prescribed time period. Each Q, as of the SEC Reports has date of the filing thereof with the Commission (or if amended or superseded by a filing prior to the date hereof, then on the date of such amending or superseding filing) or as of the date hereof in the case of the First Quarter Form 10-Q, complied in all material respects with all applicable the requirements of the Securities Act and the or Exchange Act, each as in effect applicable, and the rules and regulations promulgated thereunder. The SEC Reports, at the time they were filed (or if amended or superseded by a filing prior to the date of this Agreement, then on the dates so filed. None date of such formsamending or superseding filing) and as of the date hereof, reports or documents, including, without limitation, any financial statements or schedules included or incorporated by reference therein, contained, when filed, did not and do not contain any untrue statement of a material fact or omitted omit to state a any material fact required to be stated or incorporated by reference therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. The Company has heretofore made available As of their respective dates (or promptly will make available if amended or superseded by a filing prior to the Purchaserdate hereof, a complete and correct copy then on the date of any amendment to such amending or superseding filing), the SEC Reports. None of the Subsidiaries of the Company is required to file any reports, statements, forms or other documents with the SEC.
(b) The SEC Reports contain audited consolidated balance sheets of the Company and its Subsidiaries as of December 31 in each of the years 1995 through 1998, and the related audited consolidated statements of income, statements of cash flow and changes in Shareholders' equity of the Company and its Subsidiaries for the fiscal years then ended, together with the respective reports thereon of KPMG LLP. These audited financial statements of the Company were included or incorporated by reference in the SEC Reports (collectivelyincluding, in each case, any related notes), including any SEC Reports filed after the footnotes theretodate of this Agreement until the Closing, complied or will comply as to form in all material respects with applicable accounting requirements and the "SEC Financial Statements"), were published rules and regulations of the Commission with respect thereto as in effect at the time of filing. Such financial statements have been or will be prepared in accordance with GAAP consistently applied at the times and during the periods involved (except (i) as may be otherwise stated indicated in such financial statements or the notes thereto, or (ii) in the SEC Financial Statements case of unaudited interim statements, to the extent they may exclude footnotes or in the related reports may be condensed or summary statements as permitted by Form 10-Q of the Company's independent accountantsCommission) and fairly present fairly in all material respects the consolidated financial position of the Company and its subsidiaries as at of the dates thereof, thereof and the results of operations, changes in financial position its operations and statements of Shareholders' equity of the Company and its Subsidiaries cash flows for the periods indicated. No event has occurred since the Balance Sheet Date that would require a restatement of the SEC Financial Statements under GAAP other than by reason of a change in GAAP. The SEC Financial Statements reflectthen ended (subject, and on the Closing Date will reflect, the interest of the Company in the assetscase of unaudited statements, liabilities and operations of all Subsidiaries of the Companyto normal year-end adjustments).
(c) Neither the Company nor any of its Subsidiaries has any material liability, obligation or commitment of any nature whatsoever (whether known or unknown due or to become due, accrued, fixed, contingent, liquidated, unliquidated or otherwise) other than liabilities, obligations or commitments (i) which are accrued or reserved against in the consolidated balance sheet of the Company and its consolidated subsidiaries as of December 31, 1999 included in the Audited Financial Statements or reflected in the notes thereto, (ii)(x) which arose in the ordinary course of business since such date and (y) which do not or would not individually or in the aggregate have a Material Adverse Effect, or (iii) which are of the type that would not be required to be reflected on a consolidated balance sheet of the Company and its Subsidiaries or in the notes thereto if such balance sheet were prepared in accordance with GAAP as of the date thereof or as of the Closing Date, as the case may be.
(d) Except as set forth on Schedule 5.25(d), since the date of the Company's 1999 Proxy Statement to the date hereof, the Company has not entered into or otherwise become obligated with respect to any transactions which would require disclosure pursuant to Item 404 of Regulation S-K in accordance with Items 7(b) or (c) of Schedule 14A under the Exchange Act were a Company proxy statement to be distributed as of the date hereof.
Appears in 2 contracts
Sources: Securities Purchase Agreement (Imax Corp), Securities Purchase Agreement (Imax Corp)
SEC Reports. (a) The Company has filed all required forms, reports and documents with the SEC since December 31, 1995 (collectively, the "SEC Reports"), except Notwithstanding that the Company will file a Notification of Late Filing on Form 126-25 notifying the SEC that its Form 10-K for its 1999 fiscal year could may not be filed within subject to the prescribed time period. Each of the SEC Reports has complied in all material respects with all applicable reporting requirements of the Securities Act and Section 13 or 15(d) of the Exchange Act, each the Company shall file with the SEC (to the extent the SEC will accept such filings) and provide the Trustee and Noteholders with such annual reports and such information, documents, certifications and other reports as are specified in effect Sections 13 and 15(d) of the Exchange Act and applicable to a U.S. corporation subject to such Sections, such information, documents, certifications and other reports to be so filed and provided at the times specified for the filings of such information, documents, certifications and reports under such Sections. Notwithstanding the foregoing, the Company may satisfy such requirements prior to the effectiveness of the Exchange Offer Registration Statement or the Shelf Registration Statement by posting on the dates so filed. None of such forms, reports or documents, including, without limitation, any financial statements or schedules included or incorporated by reference therein, contained, when filed, any untrue statement of a material fact or omitted to state a material fact Company Website and making freely accessible the same information as would be required to be stated filed by the Company if it were subject to the reporting requirements of Section 13 or incorporated by reference therein or necessary in order to make the statements therein, in light 15(d) of the circumstances under which they were madeExchange Act, not misleading. The and will include a representation that the Company has heretofore made available or promptly will make available to the Purchaser, received a complete and correct copy of any amendment to the SEC Reports. None of the Subsidiaries of the Company is required to file any reports, statements, forms or other documents with the SEC.
(b) The SEC Reports contain audited consolidated balance sheets of the Company and its Subsidiaries as of December 31 in each of the years 1995 through 1998, and the related audited consolidated statements of income, statements of cash flow and changes in Shareholders' equity of the Company and its Subsidiaries for the fiscal years then ended, together with the respective reports thereon of KPMG LLP. These audited financial statements of the Company were included or incorporated by reference in the SEC Reports (collectively, including the footnotes thereto, the "SEC Financial Statements"), were prepared in accordance with GAAP (except as otherwise stated in the SEC Financial Statements or in the related reports review report of the Company's then current independent accountants) and present fairly the consolidated financial position auditors as contemplated by Statement on Auditing Standards No. 100 of the Company and its subsidiaries as at the dates thereofAmerican Institute of Certified Public Accountants, and the results of operations, changes in financial position and statements of Shareholders' equity of the Company and its Subsidiaries for the periods indicated. No event has occurred since the Balance Sheet Date that would require a restatement of the SEC Financial Statements under GAAP other than by reason of a change in GAAP. The SEC Financial Statements reflect, and on the Closing Date will reflect, the interest of the Company in the assets, liabilities and operations of all Subsidiaries of the Company.
(c) Neither the Company nor any of its Subsidiaries has any material liability, obligation or commitment of any nature whatsoever (whether known or unknown due or to become due, accrued, fixed, contingent, liquidated, unliquidated or otherwise) other than liabilities, obligations or commitments (i) which are accrued or reserved against in the consolidated balance sheet of the Company and its consolidated subsidiaries as of December 31, 1999 included in the Audited Financial Statements or reflected in the notes thereto, (ii)(x) which arose in the ordinary course of business since such date and (y) which do not or would not individually or in the aggregate have a Material Adverse Effect, or (iii) which are of the type that would not be required to be reflected on a consolidated balance sheet of the Company and its Subsidiaries or in the notes thereto if such balance sheet were prepared in accordance with GAAP as of the date thereof or as of the Closing Date, as the case may be.
(d) Except as set forth on Schedule 5.25(d), since the date of the Company's 1999 Proxy Statement to the date hereof, the Company has not entered into or otherwise become obligated Inc. with respect to any transactions interim financial information so posted on the Company Website; PROVIDED, that the Company may (A) redact those portions of any exhibits that are required to be posted pursuant hereto with respect to which the Company expects to request confidential treatment in connection with the filing of the Exchange Offer Registration Statement or the Shelf Registration Statement, (B) omit such information as the Company believes in good faith is not applicable as a result of the fact that the Company is not actually filing reports with the SEC and is otherwise immaterial and (C) change the form of certificate that would require disclosure otherwise be required pursuant to Item 404 18 U.S.C. Section 1350 as a result of Regulation S-K the preceding clauses (A) and (B). In such event, notwithstanding the time of filing that would otherwise be required pursuant to the first sentence of this Section 4.02, the Company shall post quarterly information on the Company Website not later than 60 days after the end of the applicable quarterly reporting period. For purposes of this Section 4.02, the term "COMPANY WEBSITE" means the collection of web pages that may be accessed on the World Wide Web using the URL address ▇▇▇▇://▇▇▇.▇▇▇▇▇▇▇▇.▇▇▇ or such other address as the Company may from time to time designate in accordance with Items 7(bwriting to the Trustee. In addition, the Company shall furnish to the Holders of the Notes and to prospective investors, upon the requests of such Holders, any information required to be delivered pursuant to Rule 144A(d)(4) or (c) of Schedule 14A under the Exchange Securities Act were a so long as any Notes are not freely transferable under the Securities Act. The Company proxy statement to be distributed as also shall comply with the other provisions of the date hereofTIA Section 314(a).
Appears in 2 contracts
Sources: Indenture (Merisant Foreign Holdings I Inc), Indenture (Tabletop Holdings Inc)
SEC Reports. (ai) The Company NB&T Financial has timely filed all reports, registration statements, proxy statements and other materials, together with any amendments required formsto be made with respect thereto, reports and documents that it was required to file with the SEC since December 31January 1, 1995 (collectively2010, the "SEC Reports")and all such reports, except that the Company will file a Notification of Late Filing on Form 126-25 notifying the SEC that its Form 10-K for its 1999 fiscal year could not be filed within the prescribed time period. Each of the SEC Reports has registration statements, proxy statements, other materials and amendments have complied in all material respects with all applicable legal requirements relating thereto, and has paid all fees and assessments due and payable in connection therewith.
(ii) An accurate and complete copy of each final registration statement, prospectus, report, schedule and definitive proxy statement filed with or furnished to the SEC by NB&T Financial pursuant to the Securities Act and or the Exchange ActAct prior to the date of this Agreement other than (A) such documents filed or furnished prior to May 8, each as 1996, (B) documents filed in effect paper form since May 8, 1996, that were not required to be filed electronically, and (C) documents, if any, filed with a request for confidential treatment (the “NB&T Financial’s SEC Reports”) is publicly available. None of NB&T Financial’s SEC Reports, at the time filed, furnished or communicated (and, in the case of registration statements and proxy statements, on the dates so filed. None of such formseffectiveness and the dates of the relevant meetings, reports or documentsrespectively), includingand considering all amendments to NB&T Financial’s SEC Reports filed prior to the date hereof, without limitation, any financial statements or schedules included or incorporated by reference therein, contained, when filed, contained any untrue statement of a material fact or omitted to state a any 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 in which they were made, not misleading, except that information filed as of a later date (but before the date of this Agreement) shall be deemed to modify information as of an earlier date. The Company has heretofore made available or promptly will make available As of their respective dates, all NB&T Financial’s SEC Reports complied as to the Purchaser, a complete and correct copy of any amendment to the SEC Reports. None of the Subsidiaries of the Company is required to file any reports, statements, forms or other documents form in all material respects with the SEC.
(b) The SEC Reports contain audited consolidated balance sheets of the Company published rules and its Subsidiaries as of December 31 in each of the years 1995 through 1998, and the related audited consolidated statements of income, statements of cash flow and changes in Shareholders' equity of the Company and its Subsidiaries for the fiscal years then ended, together with the respective reports thereon of KPMG LLP. These audited financial statements of the Company were included or incorporated by reference in the SEC Reports (collectively, including the footnotes thereto, the "SEC Financial Statements"), were prepared in accordance with GAAP (except as otherwise stated in the SEC Financial Statements or in the related reports of the Company's independent accountants) and present fairly the consolidated financial position of the Company and its subsidiaries as at the dates thereof, and the results of operations, changes in financial position and statements of Shareholders' equity of the Company and its Subsidiaries for the periods indicated. No event has occurred since the Balance Sheet Date that would require a restatement regulations of the SEC with respect thereto. No executive officer of NB&T Financial Statements has failed in any respect to make the certifications required of him or her under GAAP other than by reason of a change in GAAP. The SEC Financial Statements reflect, and on the Closing Date will reflect, the interest Section 302 or 906 of the Company in ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002 (the assets, liabilities and operations “▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act”). As of all Subsidiaries of the Company.
(c) Neither the Company nor any of its Subsidiaries has any material liability, obligation or commitment of any nature whatsoever (whether known or unknown due or to become due, accrued, fixed, contingent, liquidated, unliquidated or otherwise) other than liabilities, obligations or commitments (i) which are accrued or reserved against in the consolidated balance sheet of the Company and its consolidated subsidiaries as of December 31, 1999 included in the Audited Financial Statements or reflected in the notes thereto, (ii)(x) which arose in the ordinary course of business since such date and (y) which do not or would not individually or in the aggregate have a Material Adverse Effect, or (iii) which are of the type that would not be required to be reflected on a consolidated balance sheet of the Company and its Subsidiaries or in the notes thereto if such balance sheet were prepared in accordance with GAAP as of the date thereof or as of the Closing Date, as the case may be.
(d) Except as set forth on Schedule 5.25(d), since the date of the Company's 1999 Proxy Statement to the date hereof, there are no outstanding comments from or unresolved issues raised by the Company has not entered into or otherwise become obligated SEC with respect to any transactions which would require disclosure pursuant to Item 404 of Regulation S-K in accordance with Items 7(b) or (c) of Schedule 14A under the Exchange Act were a Company proxy statement to be distributed as of the date hereofNB&T Financial’s SEC Reports.
Appears in 2 contracts
Sources: Merger Agreement (Peoples Bancorp Inc), Merger Agreement (Nb&t Financial Group Inc)
SEC Reports. (aThe Company is a reporting corporation and is presently subject to the reporting requirements as provided by Section 13 and 15(d) of the 34 Act. The common stock of the Company is presently quoted on the Pink Sheets under the symbol "KREN." To the best of the Co▇▇▇▇y's knowledge, the Company has filed all required formsreports, reports schedules, statements and other documents with the SEC since December 31, 1995 required to be filed by it (collectively, including all exhibits thereto the "Company SEC Reports"). To the best of the Company's knowledge, except that none of the Company will file SEC Reports, as of their respective dates (and, if amended or superseded by a Notification filing prior to the date of Late Filing on Form 126-25 notifying the SEC that its Form 10-K for its 1999 fiscal year could not be filed within the prescribed time period. Each of the SEC Reports has complied in all material respects with all applicable requirements of the Securities Act and the Exchange Actthis Agreement, each as in effect then on the dates so filed. None date of such formsfiling), reports contained or documents, including, without limitation, any financial statements or schedules included or incorporated by reference therein, contained, when filed, will contain any untrue statement of a material fact or omitted or will omit to state a material fact required to be stated or incorporated by reference 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 heretofore made available or promptly will make available to To the Purchaser, a complete and correct copy of any amendment to the SEC Reports. None of the Subsidiaries of the Company is required to file any reports, statements, forms or other documents with the SEC.
(b) The SEC Reports contain audited consolidated balance sheets of the Company and its Subsidiaries as of December 31 in each of the years 1995 through 1998, and the related audited consolidated statements of income, statements of cash flow and changes in Shareholders' equity of the Company and its Subsidiaries for the fiscal years then ended, together with the respective reports thereon of KPMG LLP. These audited financial statements of the Company were included or incorporated by reference in the SEC Reports (collectively, including the footnotes thereto, the "SEC Financial Statements"), were prepared in accordance with GAAP (except as otherwise stated in the SEC Financial Statements or in the related reports best of the Company's independent accountantsknowledge each of the financial statements (including the related notes) and present fairly included in the Company SEC Reports presents fairly, in all material respects, the consolidated financial position of the Company and its subsidiaries as at the dates thereof, and the consolidated results of operations, changes in financial position operations and statements of Shareholders' equity of the Company and its Subsidiaries for the periods indicated. No event has occurred since the Balance Sheet Date that would require a restatement of the SEC Financial Statements under GAAP other than by reason of a change in GAAP. The SEC Financial Statements reflect, and on the Closing Date will reflect, the interest of the Company in the assets, liabilities and operations of all Subsidiaries of the Company.
(c) Neither the Company nor any of its Subsidiaries has any material liability, obligation or commitment of any nature whatsoever (whether known or unknown due or to become due, accrued, fixed, contingent, liquidated, unliquidated or otherwise) other than liabilities, obligations or commitments (i) which are accrued or reserved against in the consolidated balance sheet cash flows of the Company and its consolidated subsidiaries Subsidiaries as of December 31the respective dates or for the respective periods set forth therein, 1999 included all in conformity with United States generally accepted accounting principles ("GAAP") consistently applied during the periods involved except as otherwise noted therein, and subject, in the Audited Financial Statements or reflected in the notes thereto, (ii)(x) which arose in the ordinary course of business since such date and (y) which do not or would not individually or in the aggregate have a Material Adverse Effect, or (iii) which are case of the type unaudited interim financial statements, to the absence of notes and normal year-end adjustments that would have not be required been and are not expected to be reflected on a consolidated balance sheet material in amount. To the best of the Company's knowledge all of such Company SEC Reports, as of their respective dates (and its Subsidiaries or in the notes thereto if such balance sheet were prepared in accordance with GAAP as of the date thereof or of any amendment to the respective the Company SEC Report), complied as to form in all material respects with the applicable requirements of the Closing Date, as 33 Act and the case may be.
(d) Except as set forth on Schedule 5.25(d), since 34 Act and the date rules and regulations promulgated thereunder. Each Subsidiary of the Company's 1999 Proxy Statement to the date hereof, Company is treated as a consolidated Subsidiary of the Company has not entered into or otherwise become obligated with respect to any transactions which would require disclosure pursuant to Item 404 of Regulation S-K in accordance with Items 7(b) or (c) of Schedule 14A under the Exchange Act were a Company proxy statement to be distributed as financial reports of the date hereofCompany included in the Company SEC Reports.
Appears in 2 contracts
Sources: Stock Purchase Agreement (Kings Road Entertainment Inc), Stock Purchase Agreement (Kings Road Entertainment Inc)
SEC Reports. (a) The Company has SSI and STI have delivered to VERITAS or its counsel correct and complete copies of the final version of each report, schedule, registration A-17 19 statement and definitive proxy statement filed all required forms, reports and documents by SSI and/or STI with the SEC since December 31on or after June 27, 1995 1997 with respect to the Group Business or the Group Assets (collectively, the "SEAGATE SEC ReportsDOCUMENTS"), except which are the material documents (other than preliminary material) that the Company will SSI and STI were required to file a Notification of Late Filing on Form 126-25 notifying with the SEC that its Form 10-K for its 1999 fiscal year could not be filed within on or after June 27, 1997 with respect to the prescribed time periodGroup Business or the Group Assets. Each As of their respective dates or, in the case of registration statements, their effective dates, and except as disclosed in the Seagate SEC Documents, none of the Seagate SEC Reports has complied in Documents (including all material respects with all applicable requirements of the Securities Act exhibits and the Exchange Act, each as in effect on the dates so filed. None of such forms, reports or documents, including, without limitation, any financial statements or schedules included or thereto and documents incorporated by reference therein, contained, when filed, ) contained any untrue statement of a material fact or omitted to state a material fact required to be stated or incorporated by reference 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 heretofore made available misleading as of such time of filing, and there is no requirement under the Securities Act or promptly will make available the Exchange Act, as the case may be, to have amended any such filing, except for such requirements as were fulfilled by the filing of such Seagate SEC Documents, the Seagate SEC Documents complied, when filed, in all material respects with the then applicable requirements of the Securities Act or the Exchange Act, as the case may be, and the rules and regulations promulgated by the SEC thereunder, and SSI and STI have filed in all material respects all documents and agreements that were required to be filed as exhibits to the Purchaser, a complete and correct copy of any amendment to the Seagate SEC ReportsDocuments. None of the Subsidiaries of the Company is required to file any reports, statements, forms or other documents with the SEC.
(b) SSI Financial Statements; Absence of Undisclosed Liabilities. The SEC Reports contain audited consolidated balance sheets financial statements dated as of and for the period ending July 3, 1998 of SSI and its consolidated subsidiaries (the "SSI CONSOLIDATED FINANCIAL STATEMENTS") complied as to form in all material respects with the then applicable accounting requirements and the published rules and regulations of the Company and its Subsidiaries as of December 31 in each of the years 1995 through 1998, and the related audited consolidated statements of income, statements of cash flow and changes in Shareholders' equity of the Company and its Subsidiaries for the fiscal years then ended, together SEC with the respective reports thereon of KPMG LLP. These audited financial statements of the Company were included or incorporated by reference in the SEC Reports (collectively, including the footnotes respect thereto, the "SEC Financial Statements"), were prepared in accordance with GAAP applied on a consistent basis during the periods involved (except as otherwise stated may have been indicated in the SEC Financial Statements or notes thereto) and fairly present (subject, in the related reports case of the Company's independent accountantsunaudited statements, to normal year-end audit adjustments) and present fairly the consolidated financial position of the Company SSI and its respective consolidated subsidiaries as at the respective dates thereof, thereof and the consolidated results of operations, changes in financial position their operations and statements of Shareholders' equity of the Company and its Subsidiaries cash flows for the respective periods indicatedthen ended. No event SSI has occurred since the Balance Sheet Date that would require a restatement of the SEC Financial Statements under GAAP other than by reason of a change in GAAP. The SEC Financial Statements reflect, and on the Closing Date will reflect, the interest of the Company in the assets, no liabilities and operations of all Subsidiaries of the Company.
(c) Neither the Company nor any of its Subsidiaries has any material liability, obligation or commitment obligations of any nature whatsoever (whether known matured or unknown due unmatured, fixed or contingent) which are, individually or in the aggregate, of a nature required to become duebe disclosed on the face of a consolidated balance sheet for SSI and its consolidated subsidiaries prepared in accordance with GAAP and which would have a Material Adverse Effect on the Group Business, accrued, fixed, contingent, liquidated, unliquidated except for such liabilities or otherwise) other than liabilities, obligations or commitments as (i) which are were accrued or reserved against provided for in the consolidated balance sheet of the Company and its consolidated subsidiaries as of December 31at July 3, 1999 1998, included in the Audited SSI Consolidated Financial Statements as of the date thereof (the "SSI CONSOLIDATED FINANCIAL STATEMENTS BALANCE SHEET DATE") or reflected in (ii) are of a normally recurring nature and were incurred after the notes thereto, (ii)(x) which arose SSI Consolidated Financial Statements Balance Sheet Date in the ordinary course of business since consistent with past practice. All liabilities and valuation accounts established and reflected in the STI/SSI Consolidated Financial Statements are, to Seagate's Knowledge, reasonably adequate. At the SSI Consolidated Financial Statements Balance Sheet Date, there were no material loss contingencies (as such date term is used in Statement No. 5 issued by the Financial Accounting Standards Board in March 1975) arising from the conduct of the business of SSI and its consolidated subsidiaries which are required to be provided for or disclosed, but are not provided for or disclosed, in the SSI Consolidated Financial Statements in accordance with Statement No. 5. (yc) Group Financial Statements; Absence of Undisclosed Liabilities. Attached as Schedule 2.4(c)(1) to the SSI Disclosure Letter are the audited combined financial statements of the Group Business dated as of July 3, 1998, including a combined balance A-18 20 sheet as of July 3, 1998 (the "1998 GROUP BALANCE SHEET") and a combined balance sheet for June 27, 1997, together with combined statements of operations, cash flows, and Group Business equity for the three years in the period ended July 3, 1998 (collectively the "GROUP FINANCIAL STATEMENTS"). The Group Financial Statements comply in all material respects with the then applicable accounting requirements and rules and regulations of the Securities and Exchange Commission with respect thereto, and present fairly, in all material respects, the combined financial position of the Group Business as of July 3, 1998 and June 27, 1997, and the combined results of its operations and its cash flows for each of the three years in the period ended July 3, 1998, in conformity with GAAP. The Contributed Company Group and the Contributing Companies (with respect to the Group Business) have no Liabilities of any nature (matured or unmatured, fixed or contingent) which do not (i) are related to or would not arose in connection with the Group Business; (ii) individually or in the aggregate have aggregate, are of a Material Adverse Effect, nature required to be recorded on the face of or disclosed in the notes to the Group Financial Statements; and (iii) which are material to the Group Business taken as a whole, except for such Liabilities as (A) were accrued, provided for or disclosed in the Group Financial Statements or (B) are of the type that would not be required to be reflected on a consolidated balance sheet of the Company normally recurring nature and its Subsidiaries or in the notes thereto if such balance sheet were prepared in accordance with GAAP as of the date thereof or as of the Closing Dateincurred after July 3, as the case may be.
(d) Except as set forth on Schedule 5.25(d)1998, since the date of the Company1998 Group Balance Sheet (the "GROUP FINANCIAL STATEMENTS BALANCE SHEET DATE"), in the ordinary course of business consistent with past practice. All liabilities and valuation accounts established and reflected in the Group Financial Statements are, to Seagate's 1999 Proxy Knowledge, reasonably adequate. At the Group Financial Statements Balance Sheet Date, there were no material loss contingencies (as such term is defined in Statement to No. 5) which are not properly provided for or disclosed in the date hereof, the Company has not entered into or otherwise become obligated with respect to any transactions which would require disclosure pursuant to Item 404 of Regulation S-K in accordance with Items 7(b) or (c) of Schedule 14A under the Exchange Act were a Company proxy statement to be distributed Group Financial Statements as of the date hereof.required by Statement No. 5. 2.5
Appears in 2 contracts
Sources: Agreement and Plan of Reorganization (Seagate Software Inc), Agreement and Plan of Reorganization (Seagate Software Inc)
SEC Reports. (a) The Company has filed all required forms, reports and documents with the SEC since December 31, 1995 (collectively, the "SEC Reports"), except Notwithstanding that the Company will file a Notification of Late Filing on Form 126-25 notifying the SEC that its Form 10-K for its 1999 fiscal year could may not be filed within required to remain subject to the prescribed time period. Each of the SEC Reports has complied in all material respects with all applicable reporting requirements of the Securities Act and Section 13 or 15(d) of the Exchange Act, each as in effect on the dates so filed. None Company shall file with the SEC and provide the Trustee and Holders of such forms, reports or documents, including, without limitation, any the Notes:
(1) all quarterly and annual financial statements or schedules included or incorporated by reference therein, contained, when filed, any untrue statement of a material fact or omitted to state a material fact information that would be required to be stated or incorporated by reference therein or necessary contained in order to make the statements therein, in light of the circumstances under which they were made, not misleading. The Company has heretofore made available or promptly will make available to the Purchaser, a complete and correct copy of any amendment to filing with the SEC Reports. None of the Subsidiaries of on Forms 10-Q and 10-K if the Company is were required to file any reports, statements, forms or other documents with the SEC.
(b) The SEC Reports contain audited consolidated balance sheets of the Company and its Subsidiaries as of December 31 in each of the years 1995 through 1998, and the related audited consolidated statements of income, statements of cash flow and changes in Shareholders' equity of the Company and its Subsidiaries for the fiscal years then ended, together with the respective reports thereon of KPMG LLP. These audited financial statements of the Company were included or incorporated by reference in the SEC Reports (collectivelysuch Forms, including a "Management's Discussion and Analysis of Financial Condition and Results of Operations" that describes the footnotes thereto, the "SEC Financial Statements"), were prepared in accordance with GAAP (except as otherwise stated in the SEC Financial Statements or in the related reports of the Company's independent accountants) financial condition and present fairly the consolidated financial position of the Company and its subsidiaries as at the dates thereof, and the results of operations, changes in financial position and statements of Shareholders' equity of the Company and its Subsidiaries for the periods indicated. No event has occurred since the Balance Sheet Date that would require a restatement of the SEC Financial Statements under GAAP other than by reason of a change in GAAP. The SEC Financial Statements reflect, and on the Closing Date will reflect, the interest of the Company in the assets, liabilities and operations of all Subsidiaries of the Company.
(c) Neither the Company nor any of its Subsidiaries has any material liability, obligation or commitment of any nature whatsoever (whether known or unknown due or to become due, accrued, fixed, contingent, liquidated, unliquidated or otherwise) other than liabilities, obligations or commitments (i) which are accrued or reserved against in the consolidated balance sheet of the Company and its consolidated subsidiaries as Subsidiaries (showing in reasonable detail, either on the face of December 31, 1999 included in the Audited Financial Statements or reflected in the notes thereto, (ii)(x) which arose in the ordinary course of business since such date and (y) which do not or would not individually financial statements or in the aggregate have a Material Adverse Effect, or (iii) which are footnotes thereto and in "Management's Discussion and Analysis of Financial Condition and Results of Operations," the type that would not be required to be reflected on a consolidated balance sheet financial condition and results of operations of the Company and its Restricted Subsidiaries or in separate from the notes thereto if such balance sheet were prepared in accordance with GAAP as financial condition and results of operations of the date thereof or as of the Closing Date, as the case may be.
(d) Except as set forth on Schedule 5.25(d), since the date Unrestricted Subsidiaries of the Company's 1999 Proxy Statement , if any) and, with respect to the date hereofannual information only, a report thereon by the Company's certified independent accountants; and
(2) all current reports that would be required to be filed with the SEC on Form 8-K if the Company were required to file such reports, in each case within the time periods specified in the SEC's rules and regulations. Delivery of such reports, information and documents to the Trustee is for informational purposes only and the Trustee's receipt of such shall not constitute constructive notice of any information contained therein or determinable from information contained therein, including the Company's compliance with any of its covenants hereunder (as to which the Trustee is entitled to rely exclusively on Officers' Certificates). In addition, following the consummation of the exchange offer contemplated by the Registration Rights Agreement, whether or not required by the rules and regulations of the SEC, the Company shall file a copy of all such information and reports with the SEC for public availability within the time periods specified in the SEC's rules and regulations (unless the SEC will not accept such a filing) and make such information available to securities analysts and prospective investors upon request. In addition, the Company has not entered into or otherwise become obligated with respect agreed that, for so long as any Notes remain outstanding, it will furnish to any transactions which would require disclosure the Holders and to securities analysts and prospective investors, upon their request, the information required to be delivered pursuant to Item 404 of Regulation S-K in accordance with Items 7(bRule 144(d)(4) or (c) of Schedule 14A under the Exchange Act were a Company proxy statement to be distributed as of the date hereofSecurities Act.
Appears in 2 contracts
Sources: Indenture (Trinity Marine Products, Inc.), Indenture (Trinity Industries Inc)
SEC Reports. (a) The Company has timely filed all required forms, reports and documents with the SEC since December 31(including following any extensions of time for filing provided by Rule 12b-25 promulgated under the Exchange Act) all forms, 1995 reports, schedules, statements and other documents required to be filed by the Company with the SEC (collectively, the "“Company SEC Reports")”) since September 30, except that 2009. Except to the extent corrected by subsequent Company will file a Notification of Late Filing on Form 126-25 notifying the SEC that its Form 10-K for its 1999 fiscal year could not be filed within the prescribed time period. Each of the Reports, such Company SEC Reports has complied (a) as of their respective dates of filing, complied, and will comply, in all material respects with all the applicable requirements of the Securities Act and of 1933 (the “Securities Act”), the Exchange ActAct and other applicable Law and (b) did not and will not, each as in effect on at the dates so time they were filed. None , or if amended or restated, at the time of such formslater amendment or restatement, reports or documents, including, without limitation, any financial statements or schedules included or incorporated by reference therein, contained, when filed, 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 therein, in the light of the circumstances under which they such statements were made, not misleading. The Company has heretofore made available or promptly will make available to the Purchaser, a complete and correct copy of any amendment to the SEC Reports. None of the Subsidiaries No Subsidiary of the Company is subject to the periodic reporting requirements of the Exchange Act or is otherwise required to file any periodic forms, reports, statementsschedules, forms statements or other documents with the SEC.
(b) The SEC Reports contain audited consolidated balance sheets As of the Company and its Subsidiaries as date of December 31 this Agreement, there are no outstanding or unresolved comments in each of comment letters received from the years 1995 through 1998, and the related audited consolidated statements of income, statements of cash flow and changes in Shareholders' equity of SEC with respect to the Company and its Subsidiaries for the fiscal years then ended, together filings with the respective reports thereon of KPMG LLPSEC. These audited financial statements of To the Company were included or incorporated by reference in the SEC Reports (collectively, including the footnotes thereto, the "SEC Financial Statements"), were prepared in accordance with GAAP (except as otherwise stated in the SEC Financial Statements or in the related reports Knowledge of the Company's independent accountants) and present fairly the consolidated financial position of the Company and its subsidiaries as at the dates thereof, and the results of operations, changes in financial position and statements of Shareholders' equity of the Company and its Subsidiaries for the periods indicated. No event has occurred since the Balance Sheet Date that would require a restatement of the SEC Financial Statements under GAAP other than by reason of a change in GAAP. The SEC Financial Statements reflect, and on the Closing Date will reflect, the interest of the Company in the assets, liabilities and operations of all Subsidiaries of the Company.
(c) Neither the Company nor any of its Subsidiaries has any material liability, obligation or commitment of any nature whatsoever (whether known or unknown due or to become due, accrued, fixed, contingent, liquidated, unliquidated or otherwise) other than liabilities, obligations or commitments (i) which are accrued or reserved against in the consolidated balance sheet of the Company and its consolidated subsidiaries as of December 31, 1999 included in the Audited Financial Statements or reflected in the notes thereto, (ii)(x) which arose in the ordinary course of business since such date and (y) which do not or would not individually or in the aggregate have a Material Adverse Effect, or (iii) which are of the type that would not be required to be reflected on a consolidated balance sheet of the Company and its Subsidiaries or in the notes thereto if such balance sheet were prepared in accordance with GAAP as of the date thereof or as of the Closing Date, as the case may be.
(d) Except as set forth on Schedule 5.25(d), since the date of the Company's 1999 Proxy Statement to the date hereof, the Company has not entered into or otherwise become obligated with respect to any transactions which would require disclosure pursuant to Item 404 of Regulation S-K in accordance with Items 7(b) or (c) of Schedule 14A under the Exchange Act were a Company proxy statement to be distributed as of the date hereof, none of the Company filings with the SEC is the subject of ongoing SEC review and there are no inquiries or investigations by the SEC or any internal investigations pending or threatened, in each case regarding the Company filings with the SEC or regarding any accounting or disclosure practices of the Company or its Subsidiaries.
Appears in 2 contracts
Sources: Merger Agreement (LD Commodities Sugar Holdings LLC), Merger Agreement (Imperial Sugar Co /New/)
SEC Reports. (a) The Company Except as disclosed in Schedule 6.9, AmerUs has filed all required reports, schedules, forms, reports statements and other documents (including exhibits and all other information incorporated therein) with the SEC since December 31January 1, 1995 1997 (collectivelythe "AmerUs SEC Documents"). As of their respective dates, the "AmerUs SEC Reports"), except that the Company will file a Notification of Late Filing on Form 126-25 notifying the SEC that its Form 10-K for its 1999 fiscal year could not be filed within the prescribed time period. Each of the SEC Reports has Documents complied in all material respects with all applicable the requirements of the Securities Act of 1933, as amended (the "Securities Act"), or the Securities Exchange Act of 1934 (the "Exchange Act"), as the case may be, and the Exchange Actrules and regulations of the SEC promulgated thereunder applicable to such AmerUs SEC Documents, each as in effect on and none of the dates so filed. None of such forms, reports or documents, including, without limitation, any financial statements or schedules included or incorporated by reference therein, contained, AmerUs SEC Documents when filed, filed contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or incorporated necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading. Except to the extent that information contained in any AmerUs SEC Document has been revised or superseded by reference a later filed AmerUs SEC Document, none of the AmerUs 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 heretofore made available or promptly will make available financial statements of AmerUs included in the AmerUs SEC Documents comply as to the Purchaserform, a complete and correct copy as of any amendment to the SEC Reports. None their respective dates of the Subsidiaries of the Company is required to file any reports, statements, forms or other documents filing with the SEC.
(b) The SEC Reports contain audited consolidated balance sheets , in all material respects with applicable accounting requirements and the published rules and regulations of the Company and its Subsidiaries as of December 31 in each of the years 1995 through 1998, and the related audited consolidated statements of income, statements of cash flow and changes in Shareholders' equity of the Company and its Subsidiaries for the fiscal years then ended, together SEC with the respective reports thereon of KPMG LLP. These audited financial statements of the Company were included or incorporated by reference in the SEC Reports (collectively, including the footnotes respect thereto, the "SEC Financial Statements"), were have been prepared in accordance with GAAP (except, in the case of unaudited statements, as permitted by Form 10-Q of the SEC) applied on a consistent basis during the periods involved (except as otherwise stated may be indicated in the SEC Financial Statements or in the related reports of the Company's independent accountantsnotes thereto) and fairly present fairly in all material respects the consolidated financial position of the Company AmerUs and its subsidiaries consolidated Subsidiaries as at of the dates thereof, thereof and the consolidated results of operations, changes in financial position their operations and statements of Shareholders' equity of the Company and its Subsidiaries cash flows for the periods indicated. No event has occurred since the Balance Sheet Date that would require a restatement of the SEC Financial Statements under GAAP other than by reason of a change in GAAP. The SEC Financial Statements reflectthen ended (subject, and on the Closing Date will reflect, the interest of the Company in the assetscase of unaudited statements, liabilities and operations of all Subsidiaries of the Companyto normal recurring year-end audit adjustments).
(cb) Neither As of their respective dates, the Company nor any of its Subsidiaries has any AMHC SEC Documents shall comply in all material liability, obligation or commitment of any nature whatsoever (whether known or unknown due or to become due, accrued, fixed, contingent, liquidated, unliquidated or otherwise) other than liabilities, obligations or commitments (i) which are accrued or reserved against in respects with the consolidated balance sheet requirements of the Company and its consolidated subsidiaries as of December 31, 1999 included in Securities Act or the Audited Financial Statements or reflected in the notes thereto, (ii)(x) which arose in the ordinary course of business since such date and (y) which do not or would not individually or in the aggregate have a Material Adverse Effect, or (iii) which are of the type that would not be required to be reflected on a consolidated balance sheet of the Company and its Subsidiaries or in the notes thereto if such balance sheet were prepared in accordance with GAAP as of the date thereof or as of the Closing DateExchange Act, as the case may be.
(d) Except as set forth on Schedule 5.25(d), since and the date rules and regulations of the Company's 1999 Proxy Statement SEC promulgated thereunder applicable to the date hereofsuch AMHC SEC Documents, the Company has not entered into or otherwise become obligated with respect to any transactions which would require disclosure pursuant to Item 404 and none of Regulation S-K in accordance with Items 7(b) or (c) of Schedule 14A under the Exchange Act were a Company proxy statement to be distributed as of the date hereof.the
Appears in 2 contracts
Sources: Combination and Investment Agreement (Amerus Group Co/Ia), Combination and Investment Agreement (Amerus Life Holdings Inc)
SEC Reports. (a) The Company has filed all required reports, schedules, forms, reports statements and other documents required to be filed by it under the Exchange Act, including pursuant to Section l3(a) or 15(d) thereof, since January 1, 2010 (the foregoing materials, including the exhibits thereto and documents with incorporated by reference therein, being collectively referred to herein as the SEC since December 31, 1995 (collectively, the "“SEC Reports"”), except that on a timely basis or has received a valid extension of such time of filing and has filed any such SEC Reports prior to the Company will file a Notification expiration of Late Filing on Form 126-25 notifying the SEC that its Form 10-K for its 1999 fiscal year could not be filed within the prescribed time periodany such extension. Each As of their respective filing dates, the SEC Reports has complied in all material respects with all applicable the requirements of the Securities Act and the Exchange ActAct and the rules and regulations of the Commission promulgated thereunder, each as in effect on and none of the dates so filed. None of such forms, reports or documents, including, without limitation, any financial statements or schedules included or incorporated by reference therein, containedSEC Reports, when filed, contained any untrue statement of a material fact or omitted to state a material fact required to be stated or incorporated by reference therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading. On April 26, 2012, the Company filed an S-4 Registration Statement in connection with the proposed merger of KeySource Financial Inc. with and into the Company according to the terms of an Agreement and Plan of Merger dated December 21, 2011; such registration statement contains important information about the Company’s Common Stock and certain other material information about the Company. The Company has heretofore made available or promptly will make available advises the Purchaser to read such registration statement, in particular the sections entitled “Risk Factors,” “Description of BNC Capital Stock” and “Information about BNC.” On April 16, 2012, the Company filed a Definitive Proxy Statement in connection with the proposed (i) amendment to the Company’s Articles of Incorporation to create a class of non-voting common stock; (ii) amendment to the Company’s Articles of Incorporation to amend the terms of the Company’s Mandatorily Convertible Non-voting Preferred Stock, Series B, and (iii) issuance of non-voting common stock to the Purchaser, a complete and correct copy of any amendment to ; such Proxy Statement contains important information about the Company. The SEC Reports. None of , including the Subsidiaries of the Company is required to file any reports, statements, forms or other documents with the SEC.
(b) The SEC Reports contain audited consolidated balance sheets of the Company and its Subsidiaries as of December 31 in each of the years 1995 through 1998, and the related audited consolidated statements of income, statements of cash flow and changes in Shareholders' equity of the Company and its Subsidiaries for the fiscal years then ended, together with the respective reports thereon of KPMG LLP. These audited financial statements of the Company were included or incorporated by reference in the SEC Reports (collectivelyeach of them, including the footnotes thereto, the "SEC Financial Statements"), were prepared in accordance with GAAP (except as otherwise stated in the SEC Financial Statements or in the related reports each contained substantially all of the Company's independent accountants) and present fairly the consolidated financial position information required to be included in it. No executive officer of the Company and its subsidiaries as at has failed in any respect to make the dates thereof, and the results certifications required of operations, changes in financial position and statements of Shareholders' equity him or her under Section 302 or 906 of the Company and its Subsidiaries for the periods indicated. No event has occurred since the Balance Sheet Date that would require a restatement ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of the SEC Financial Statements under GAAP other than by reason of a change in GAAP. The SEC Financial Statements reflect, and on the Closing Date will reflect, the interest of the Company in the assets, liabilities and operations of all Subsidiaries of the Company2002.
(c) Neither the Company nor any of its Subsidiaries has any material liability, obligation or commitment of any nature whatsoever (whether known or unknown due or to become due, accrued, fixed, contingent, liquidated, unliquidated or otherwise) other than liabilities, obligations or commitments (i) which are accrued or reserved against in the consolidated balance sheet of the Company and its consolidated subsidiaries as of December 31, 1999 included in the Audited Financial Statements or reflected in the notes thereto, (ii)(x) which arose in the ordinary course of business since such date and (y) which do not or would not individually or in the aggregate have a Material Adverse Effect, or (iii) which are of the type that would not be required to be reflected on a consolidated balance sheet of the Company and its Subsidiaries or in the notes thereto if such balance sheet were prepared in accordance with GAAP as of the date thereof or as of the Closing Date, as the case may be.
(d) Except as set forth on Schedule 5.25(d), since the date of the Company's 1999 Proxy Statement to the date hereof, the Company has not entered into or otherwise become obligated with respect to any transactions which would require disclosure pursuant to Item 404 of Regulation S-K in accordance with Items 7(b) or (c) of Schedule 14A under the Exchange Act were a Company proxy statement to be distributed as of the date hereof.
Appears in 2 contracts
Sources: Securities Purchase Agreement (BNC Bancorp), Securities Purchase Agreement and Amendment Number 1 to Investment Agreement (Aquiline BNC Holdings LLC)
SEC Reports. (a) The Company has heretofore filed all required forms, reports and documents with the SEC since December 31, 1995 Securities and Exchange Commission (collectively, the "SEC ReportsSEC") pursuant to the Securities Exchange Act of 1934, as amended (the "Exchange Act"), except that the Company will file a Notification of Late Filing all reports and other documents required to be filed, including an Annual Report on Form 126-25 notifying the SEC that its Form 10-K for its 1999 fiscal the year could not be filed within ended December 31, 1998 (the prescribed time period. Each of the SEC Reports has complied in all material respects with all applicable requirements of the Securities Act and the Exchange Act, each as in effect on the dates so filed"Form 10-K"). None of such formsreports, reports or any other reports, documents, includingregistration statements, without limitation, any financial statements or schedules included or incorporated by reference therein, contained, when filed, definitive proxy materials and other filings required to be filed with the SEC under the rules and regulations of the SEC ("SEC Filings") contains any untrue statement of a material fact or omitted omits to state a material fact required to be stated or incorporated by reference therein or necessary in order to make the statements thereinmade, at the time and in light of the circumstances under which they were made, not misleading. The Since December 31, 1998, the Company has heretofore made available or promptly will make available to the Purchaser, a complete and correct copy of any amendment to timely filed with the SEC Reports. None all SEC Filings and all such SEC Filings complied with all applicable requirements of the Subsidiaries Securities Act of 1933, as amended (the Company is required to file any reports, statements, forms or other documents with the SEC.
(b) The SEC Reports contain audited consolidated balance sheets of the Company and its Subsidiaries as of December 31 in each of the years 1995 through 1998"Securities Act"), and the related audited consolidated statements of incomeExchange Act, statements of cash flow as applicable and changes in Shareholders' equity of the Company and its Subsidiaries for the fiscal years then ended, together with the respective reports thereon of KPMG LLPrules thereunder. These The audited financial statements of the Company were included or incorporated by reference in the SEC Reports (collectively1998 Annual Report and the unaudited financial statements contained in the quarterly reports on Form 10-Q filed since December 31, including the footnotes thereto, the "SEC Financial Statements"), were 1998 each have been prepared in accordance with GAAP (such acts and rules and with United States generally accepted accounting principles applied on a consistent basis throughout the periods indicated therein and with each other, except as otherwise stated in the SEC Financial Statements may be indicated therein or in the related reports of notes thereto and except that the Company's independent accountants) unaudited interim financial statements may not contain all footnotes and adjustments required by United States generally accepted accounting principles, and fairly present fairly the consolidated financial position condition of the Company and its subsidiaries as at the dates thereof, thereof and the results of operations, changes in financial position its operations and statements of Shareholders' equity of the Company and its Subsidiaries cash flows for the periods indicatedthen ended, subject, in the case of unaudited interim financial statements, to normal year-end adjustments. No event Except as reflected in such financial statements, the Company has occurred no material liabilities, absolute or contingent, other than ordinary course liabilities incurred since the Balance Sheet Date that would require a restatement date of the SEC Financial Statements under GAAP other than by reason last such financial statements in connection with the conduct of a change in GAAPthe business of the Company. The SEC Financial Statements reflectSince December 31, 1998, and on except as described in the Closing Date will reflectCompany's SEC Filings since December 31, the interest of the Company 1998, there has been no:
(a) change in the assets, liabilities and operations of all Subsidiaries of the Company.
(c) Neither the Company nor any of its Subsidiaries has any material liability, obligation or commitment of any nature whatsoever (whether known or unknown due or to become due, accrued, fixed, contingent, liquidated, unliquidated or otherwise) other than liabilities, obligations financial condition or commitments (i) which are accrued or reserved against in the consolidated balance sheet operating results of the Company and its consolidated subsidiaries as of December 31, 1999 included in the Audited Financial Statements or from that reflected in the notes thereto1998 Annual Report, (ii)(x) which arose except changes in the ordinary course of business since such date and (y) which do not or would not that have not, individually or in the aggregate aggregate, resulted in and are not reasonably expected to result in a Material Adverse Effect (and except that the Company expects to continue to incur substantial operating losses, which may be material);
(b) damage, destruction or loss, whether or not covered by insurance, materially and adversely affecting the business, properties or financial condition of the Company (and except that the Company expects to continue to incur substantial operating losses, which may be material);
(c) waiver or compromise by the Company of a material right or of a material debt owed to it;
(d) satisfaction or discharge of any lien, claim or encumbrance by the Company, except in the ordinary course of business and which is not material to the business, properties or financial condition of the Company (as such business is presently conducted);
(e) material change to a material contract or arrangement by which the Company or any of its assets is bound or subject;
(f) sale, assignment or transfer to a third party that is not an Affiliate (as hereafter defined) of any material patents, trademarks, copyrights, trade secrets or other intangible assets for compensation which is less than fair value;
(g) mortgage, pledge, transfer of a security interest in, or lien, created by the Company, with respect to any of its material properties or assets, except liens for taxes not yet due or payable;
(h) declaration, setting aside or payment or other distribution in respect of any of the Company's capital stock, except any direct or indirect redemption, purchase or other acquisition of any such stock by the Company; or
(i) event or condition of any type that has had or is reasonably expected to have a Material Adverse Effect, or (iii) which are of the type that would not be required to be reflected on a consolidated balance sheet of the Company and its Subsidiaries or in the notes thereto if such balance sheet were prepared in accordance with GAAP as of the date thereof or as of the Closing Date, as the case may be.
(d) Except as set forth on Schedule 5.25(d), since the date of the Company's 1999 Proxy Statement to the date hereof, the Company has not entered into or otherwise become obligated with respect to any transactions which would require disclosure pursuant to Item 404 of Regulation S-K in accordance with Items 7(b) or (c) of Schedule 14A under the Exchange Act were a Company proxy statement to be distributed as of the date hereof.
Appears in 2 contracts
Sources: Stock Purchase Agreement (Ligand Pharmaceuticals Inc), Stock Purchase Agreement (Ligand Pharmaceuticals Inc)
SEC Reports. (a) The Company has filed all required forms, reports and documents with the SEC since December 31, 1995 (collectively, the "SEC Reports"), except Notwithstanding that the Company will file a Notification of Late Filing on Form 126-25 notifying the SEC that its Form 10-K for its 1999 fiscal year could not be filed within the prescribed time period. Each of the SEC Reports has complied in all material respects with all applicable requirements of the Securities Act and the Exchange Act, each as in effect on the dates so filed. None of such forms, reports or documents, including, without limitation, any financial statements or schedules included or incorporated by reference therein, contained, when filed, any untrue statement of a material fact or omitted to state a material fact required to be stated or incorporated by reference 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 heretofore made available or promptly will make available to the Purchaser, a complete and correct copy of any amendment to the SEC Reports. None of the Subsidiaries of the Company is required to file any reports, statements, forms or other documents with the SEC.
(b) The SEC Reports contain audited consolidated balance sheets of the Company and its Subsidiaries as of December 31 in each of the years 1995 through 1998, and the related audited consolidated statements of income, statements of cash flow and changes in Shareholders' equity of the Company and its Subsidiaries for the fiscal years then ended, together with the respective reports thereon of KPMG LLP. These audited financial statements of the Company were included or incorporated by reference in the SEC Reports (collectively, including the footnotes thereto, the "SEC Financial Statements"), were prepared in accordance with GAAP (except as otherwise stated in the SEC Financial Statements or in the related reports of the Company's independent accountants) and present fairly the consolidated financial position of the Company and its subsidiaries as at the dates thereof, and the results of operations, changes in financial position and statements of Shareholders' equity of the Company and its Subsidiaries for the periods indicated. No event has occurred since the Balance Sheet Date that would require a restatement of the SEC Financial Statements under GAAP other than by reason of a change in GAAP. The SEC Financial Statements reflect, and on the Closing Date will reflect, the interest of the Company in the assets, liabilities and operations of all Subsidiaries of the Company.
(c) Neither the Company nor any of its Subsidiaries has any material liability, obligation or commitment of any nature whatsoever (whether known or unknown due or to become due, accrued, fixed, contingent, liquidated, unliquidated or otherwise) other than liabilities, obligations or commitments (i) which are accrued or reserved against in the consolidated balance sheet of the Company and its consolidated subsidiaries as of December 31, 1999 included in the Audited Financial Statements or reflected in the notes thereto, (ii)(x) which arose in the ordinary course of business since such date and (y) which do not or would not individually or in the aggregate have a Material Adverse Effect, or (iii) which are of the type that would Issuers may not be required to be reflected or remain subject to the reporting requirements of Section 13(a) or 15(d) of the Exchange Act, the Company or RSC will file with the SEC (unless such filing is not permitted under the Exchange Act or by the SEC), so long as the Notes are Outstanding, the annual reports, information, documents and other reports that the Issuers are required to file with the SEC pursuant to such Section 13(a) or 15(d) or would be so required to file if they were so subject. The Company or RSC will also, within 15 days after the date on which the Company or RSC, as applicable, was so required to file or would be so required to file if the Company or RSC, as applicable, were so subject, transmit by mail to all applicable Holders, as their names and addresses appear in the Note Register, and to the Trustee (or make available on a consolidated balance sheet Company or RSC website, provided, however, that the Trustee shall have no responsibility to determine if such reports and other documents have been so made available) copies of any such information, documents and reports (without exhibits) so required to be filed. Notwithstanding the foregoing, if any audited or reviewed financial statements or information required to be included in any such filing are not reasonably available on a timely basis as a result of the Company’s or RSC’s, as applicable, accountants not being “independent” (as defined pursuant to the Exchange Act and the rules and regulations of the SEC thereunder), the Company or RSC, as applicable, may, in lieu of making such filing or transmitting or making available the information, documents and its Subsidiaries reports so required to be filed, elect to make a filing on an alternative form or transmit or make available unaudited or unreviewed financial statements or information substantially similar to such required audited or reviewed financial statements or information; provided that (a) the Company or RSC, as applicable, shall in any event be required to make such filing and so transmit or make available such audited or reviewed financial statements or information no later than the notes thereto if such balance sheet were prepared in accordance with GAAP as first anniversary of the date thereof on which the same was otherwise required pursuant to the preceding provisions of this paragraph (such initial date, the “Reporting Date”) and (b) if the Company or RSC, as of the Closing Dateapplicable, makes such an election and such filing has not been made, or such information, documents and reports have not been transmitted or made available, as the case may be.
(d) Except as set forth , within 90 days after such Reporting Date, liquidated damages will accrue on Schedule 5.25(d), since the Notes at a rate of 0.50% per annum from the date that is 90 days after such Reporting Date to the earlier of (x) the date on which such filing has been made, or such information, documents and reports have been transmitted or made available, as the case may be, and (y) the first anniversary of such Reporting Date (provided that not more than 0.50% per annum in liquidated damages shall be payable for any period regardless of the Company's 1999 Proxy Statement to the date hereof, number of such elections by the Company has or RSC, as applicable). The Company or RSC, as applicable, will be deemed to have satisfied the requirements of this Section 405 if any Parent files and provides reports, documents and information of the types otherwise so required, in each case within the applicable time periods, and the Company or RSC, as applicable, is not entered into or otherwise become obligated with respect required to file such reports, documents and information separately under the applicable rules and regulations of the SEC (after giving effect to any transactions which would require disclosure pursuant to Item 404 of Regulation S-K in accordance with Items 7(bexemptive relief) or (c) of Schedule 14A under the Exchange Act were a Company proxy statement to be distributed as because of the date hereoffilings by such Parent. The Company or RSC, as applicable, also will comply with the other provisions of TIA § 314(a).
Appears in 2 contracts
Sources: Indenture (RSC Equipment Rental, Inc.), Indenture (RSC Equipment Rental, Inc.)
SEC Reports. (a) The Company has filed all required forms, reports and documents with the SEC all forms, reports, schedules, statements and other documents required to be filed by it since December 31January 1, 1995 2000, under the Exchange Act or the Securities Act (as such documents have been amended since the time of their filing, collectively, the "Company SEC ReportsDocuments"). As of their respective dates or, except that if amended prior to the date hereof, as of the date of the last such amendment, the Company will file a Notification of Late Filing on Form 126-25 notifying the SEC that its Form 10-K for its 1999 fiscal year could not be filed within the prescribed time period. Each of the SEC Reports has complied in all material respects with all applicable requirements of the Securities Act and the Exchange Act, each as in effect on the dates so filed. None of such forms, reports or documentsDocuments, including, without limitation, any financial statements or schedules included or incorporated by reference therein, contained, when filed, (a) 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 therein, in light of the circumstances under which they were made, not misleading. The Company has heretofore made available or promptly will make available to the Purchaser, a complete misleading and correct copy of any amendment to the SEC Reports. None of the Subsidiaries of the Company is required to file any reports, statements, forms or other documents with the SEC.
(b) The SEC Reports contain audited consolidated balance sheets complied in all material respects with the applicable requirements of the Company and its Subsidiaries as of December 31 in each of the years 1995 through 1998, Exchange Act and the related audited consolidated statements of income, statements of cash flow and changes in Shareholders' equity of the Company and its Subsidiaries for the fiscal years then ended, together with the respective reports thereon of KPMG LLP. These audited financial statements of the Company were included or incorporated by reference in the SEC Reports (collectively, including the footnotes thereto, the "SEC Financial Statements"), were prepared in accordance with GAAP (except as otherwise stated in the SEC Financial Statements or in the related reports of the Company's independent accountants) and present fairly the consolidated financial position of the Company and its subsidiaries as at the dates thereof, and the results of operations, changes in financial position and statements of Shareholders' equity of the Company and its Subsidiaries for the periods indicated. No event has occurred since the Balance Sheet Date that would require a restatement of the SEC Financial Statements under GAAP other than by reason of a change in GAAP. The SEC Financial Statements reflect, and on the Closing Date will reflect, the interest of the Company in the assets, liabilities and operations of all Subsidiaries of the Company.
(c) Neither the Company nor any of its Subsidiaries has any material liability, obligation or commitment of any nature whatsoever (whether known or unknown due or to become due, accrued, fixed, contingent, liquidated, unliquidated or otherwise) other than liabilities, obligations or commitments (i) which are accrued or reserved against in the consolidated balance sheet of the Company and its consolidated subsidiaries as of December 31, 1999 included in the Audited Financial Statements or reflected in the notes thereto, (ii)(x) which arose in the ordinary course of business since such date and (y) which do not or would not individually or in the aggregate have a Material Adverse Effect, or (iii) which are of the type that would not be required to be reflected on a consolidated balance sheet of the Company and its Subsidiaries or in the notes thereto if such balance sheet were prepared in accordance with GAAP as of the date thereof or as of the Closing DateSecurities Act, as the case may be.
(d) , at such time of filing. Except as set forth on Schedule 5.25(d), since the date Section 4.5 of the Company's 1999 Proxy Statement to the date hereofCompany Disclosure Letter, the Company has not entered into or otherwise become obligated with respect to any transactions which would require disclosure pursuant to Item 404 of Regulation S-K in accordance with Items 7(b) or (c) of Schedule 14A under the Exchange Act were a Company proxy statement to be distributed as of the date hereof, there are no amendments or modifications to agreements, documents or other instruments which previously had been filed by the Company with the SEC pursuant to the Securities Act or the Exchange Act or any other agreements, documents or other instruments, which have not yet been filed with the SEC but which are or will be required to be filed by the Company. To the Knowledge of the Company, (x) there exist no outstanding SEC comments with respect to any of the Company SEC Documents and (y) there are no SEC inquiries or investigations, other inquiries or investigations by any Governmental Entity or internal investigations pending or threatened, in each case regarding any accounting practices of the Company or any of its Subsidiaries.
Appears in 2 contracts
Sources: Merger Agreement (Career Education Corp), Merger Agreement (Whitman Education Group Inc)
SEC Reports. (a) The Except as set forth in Schedule 3.2.5, the Company has filed all required forms, reports reports, statements (including proxy statements) and documents schedules with the SEC since December 31, 1995 Commission required to be filed pursuant to the Exchange Act or other federal securities laws (collectively, the "SEC Reports"), except that the Company will file a Notification of Late Filing on Form 126-25 notifying the SEC that its Form 10-K for its 1999 fiscal year could not be filed within the prescribed time period. Each of the The SEC Reports has complied in all material respects with all applicable requirements of the Securities Exchange Act and the Exchange Act, each did not (as in effect on the dates so filed. None of such forms, reports or documents, including, without limitation, any financial statements or schedules included or incorporated by reference therein, contained, when filed, their respective filing dates) 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. The Company has heretofore made available or promptly will make available to the Purchaser, a complete audited and correct copy of any amendment to the SEC Reports. None of the Subsidiaries of the Company is required to file any reports, statements, forms or other documents with the SEC.
(b) The SEC Reports contain audited unaudited consolidated balance sheets of the Company and its Subsidiaries as of December 31 in each of the years 1995 through 1998, and the related audited consolidated statements of income, statements of cash flow and changes in Shareholders' equity of the Company and its Subsidiaries for the fiscal years then ended, together with the respective reports thereon of KPMG LLP. These audited financial statements of the Company were included (or incorporated by reference reference) in the SEC Reports (collectively, including the footnotes thereto, the "SEC Financial Statements"), were have been prepared in accordance with GAAP (except as otherwise stated in generally accepted accounting principles applied on a consistent basis and fairly present the SEC Financial Statements or in the related reports of the Company's independent accountants) and present fairly the consolidated financial position of the Company and its subsidiaries consolidated Subsidiaries as at of the dates thereof, thereof and the results of operations, their operations and changes in financial position and statements of Shareholders' equity of the Company and its Subsidiaries for the periods indicated. No event has occurred since then ended, subject, in the Balance Sheet Date that would require a restatement case of the SEC Financial Statements under GAAP other than by reason of unaudited financial statements, to normal year-end audit adjustments which shall not have a change in GAAP. The SEC Financial Statements reflect, and on the Closing Date will reflect, the interest of the Company in the assets, liabilities and operations of all Subsidiaries of the CompanyMaterial Adverse Effect.
(cb) Neither the Company nor any of its Subsidiaries has any material liability, obligation or commitment of any nature whatsoever (whether known or unknown due or to become due, accrued, fixed, contingent, liquidated, unliquidated or otherwise) other than liabilities, obligations or commitments (i) which are accrued Except as reflected or reserved against in the consolidated balance sheet of the Company and its consolidated subsidiaries as of December 31, 1999 included in the Audited Financial Statements or reflected in the notes thereto, (ii)(x) which arose in the ordinary course of business since such date and (y) which do not or would not individually or in the aggregate have a Material Adverse Effect, or (iii) which are of the type that would not be required to be reflected on a audited consolidated balance sheet of the Company and its Subsidiaries at December 31, 1996, the Company and its Subsidiaries have no liabilities of any nature (whether accrued, absolute, contingent or otherwise), except for liabilities incurred in the ordinary course of business since December 31, 1996 or liabilities which would not, individually or in the notes thereto if such balance sheet were prepared in accordance with GAAP as of the date thereof or as of the Closing Dateaggregate, as the case may be.
(d) have a Material Adverse Effect. Except as set forth on in Schedule 5.25(d)3.2.5, since the date of the Company's 1999 Proxy Statement to the date hereof, neither the Company nor any of its subsidiaries is liable as an indemnitor, guarantor, surety or endorser, and no person has not entered into the power to confess judgment against the Company or otherwise become obligated with respect any of its subsidiaries, assets, properties or business except as would not, individually or in the aggregate, result in or reasonably be likely to any transactions which would require disclosure pursuant to Item 404 of Regulation S-K result in accordance with Items 7(b) or (c) of Schedule 14A under the Exchange Act were a Company proxy statement to be distributed as of the date hereofMaterial Adverse Effect.
Appears in 2 contracts
Sources: Merger Agreement (Peerless Industrial Group Inc), Merger Agreement (R B Capital Corp)
SEC Reports. (a) The Company has filed all required forms, reports and documents with the SEC Securities and Exchange Commission (the "SEC") since January 1, 1994. The Company has made available to Gaming, in the form filed with the SEC, the Company's (i) Annual Reports on Form 10-K for the fiscal years ended December 31, 1996, 1995 and 1994, (collectivelyii) all Quarterly Reports on Form 10-Q filed by the Company with the SEC since January 1, 1994, (iii) all proxy statements relating to meetings of the Company's stockholders since January 1, 1994 and (iv) all Current Reports on Form 8-K and registration statements filed by the Company with the SEC since January 1, 1994 (collectively and as amended as required, the "SEC Reports"). As of their respective dates, except that the Company will file a Notification of Late Filing on Form 126-25 notifying the SEC that its Form 10-K for its 1999 fiscal year could not be filed within the prescribed time period. Each of the SEC Reports has complied in all material respects with all applicable requirements of the Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder (the "Securities Act"), and the Exchange Act, each as in effect on the dates so such SEC Reports were filed. None As of such formstheir respective dates, reports or documentsnone of the SEC Reports, including, without limitation, any financial statements or schedules included or incorporated by reference therein, contained, when filed, contained any untrue statement of a material fact or omitted to state a material fact required to be stated or incorporated by reference therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading. No subsidiary of the Company is required, as of the date hereof, to file any form, report, or other document with the SEC under Section 12 of the Exchange Act. The audited consolidated financial statements and unaudited consolidated interim financial statements of the Company included in the SEC Reports fairly present, in all material respects, in conformity with GAAP (as defined in Section 4.11 of this Agreement) applied on a consistent basis (except as may be indicated in the notes thereto), the consolidated financial position of the Company and its consolidated subsidiaries as of the dates thereof and their consolidated results of operations and cash flows for the periods then ended (subject to normal year-end adjustments in the case of any unaudited interim financial statements). The Company has heretofore made available or promptly will make available to the Purchaser, Gaming a complete and correct copy of any amendment amendments or modifications, which are required to be filed with the SEC but have not yet been filed with the SEC, to the SEC Reports. None of the Subsidiaries of the Company is required to file any reports, statements, forms or other documents with the SEC.
(b) The SEC Reports contain audited consolidated balance sheets of the Company and its Subsidiaries Except as of December 31 set forth in each of the years 1995 through 1998Schedule 2.7(b) hereto, and the related audited consolidated statements of income, statements of cash flow and changes in Shareholders' equity of the Company and its Subsidiaries for the fiscal years then ended, together with the respective reports thereon of KPMG LLP. These audited financial statements of the Company were included or incorporated by reference in the SEC Reports (collectively, including the footnotes thereto, the "SEC Financial Statements"), were prepared in accordance with GAAP (except as otherwise stated in the SEC Financial Statements or in the related reports of the Company's independent accountants) and present fairly the consolidated financial position of the Company and its subsidiaries as at the dates thereof, and the results of operations, changes in financial position and statements of Shareholders' equity of the Company and its Subsidiaries for the periods indicated. No event has occurred since the Balance Sheet Date that would require a restatement of the SEC Financial Statements under GAAP other than by reason of a change in GAAP. The SEC Financial Statements reflect, and on the Closing Date will reflect, the interest of the Company in the assets, have no liabilities and operations of all Subsidiaries of the Company.
(c) Neither the Company nor any of its Subsidiaries has any material liability, obligation or commitment of any nature whatsoever (whether known or unknown due or to become due, accrued, fixedabsolute, contingent, liquidated, unliquidated contingent or otherwise) other than liabilities), obligations or commitments except for (i) which are accrued or reserved against liabilities set forth in the consolidated audited balance sheet of the Company and its consolidated subsidiaries as of dated December 31, 1999 included in the Audited Financial Statements 1996 or reflected in on the notes thereto, contained in the Company's Annual Report on Form 10-K for the fiscal year ended December 31, 1996, (ii)(xii) which arose liabilities incurred in the ordinary course of business consistent with past practice since such date January 1, 1997 and (yiii) liabilities which do not or would not not, individually or in the aggregate aggregate, have a Company Material Adverse Effect, or (iii) which are of the type that would not be required to be reflected on a consolidated balance sheet of the Company and its Subsidiaries or in the notes thereto if such balance sheet were prepared in accordance with GAAP as of the date thereof or as of the Closing Date, as the case may be.
(d) Except as set forth on Schedule 5.25(d), since the date of the Company's 1999 Proxy Statement to the date hereof, the Company has not entered into or otherwise become obligated with respect to any transactions which would require disclosure pursuant to Item 404 of Regulation S-K in accordance with Items 7(b) or (c) of Schedule 14A under the Exchange Act were a Company proxy statement to be distributed as of the date hereof.
Appears in 2 contracts
Sources: Merger Agreement (Paulson Allen E), Merger Agreement (Riviera Holdings Corp)
SEC Reports. (a) The Company has filed or furnished (as applicable) all required forms, reports and documents with the SEC since December 31that have been required to be so filed or furnished (as applicable) by it under applicable Law prior to the date hereof, 1995 (collectivelyand, after the "SEC Reports")date of this Agreement and until the Acceptance Time, except that the Company will timely file a Notification of Late Filing on Form 126-25 notifying or furnish (as applicable) all forms, reports and documents with the SEC that its Form 10-K for its 1999 fiscal year could not are required to be filed within or furnished (as applicable) by it under applicable Law (all such forms, reports and documents, together with any other forms, reports or other documents filed or furnished (as applicable) by the prescribed time periodCompany with the SEC on or prior to the expiration date of the Offer that are not required to be so filed or furnished (the “SEC Reports”). Each SEC Report complied, or will comply, as the case may be, as of the SEC Reports has complied its filing date, as to form, in all material respects with all the applicable requirements of the Securities Act and or the Exchange Act, as the case may be, and with all applicable provisions of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act and the ▇▇▇▇-▇▇▇▇▇ ▇▇▇▇ Street Reform and Consumer Protection Act (the “▇▇▇▇-▇▇▇▇▇ Act”), each as in effect on the dates so date such SEC Report was, or will be, filed. None True, correct and complete copies of all SEC Reports filed prior to the date hereof, whether or not required under applicable Law, have been made available to Parent or are publicly available in the Electronic Data Gathering, Analysis and Retrieval (▇▇▇▇▇) database of the SEC. As of its filing date, (or, if revised, amended, modified or superseded by a filing prior to the date of this Agreement, on the date of such formsamended or superseded filing), reports or documents, including, without limitation, any financial statements or schedules included or incorporated by reference therein, contained, when filed, each SEC Report did not and will not contain any untrue statement of a material fact or omitted omit to state a any material fact required to be stated or incorporated by reference therein or necessary in order to make the statements made therein, in the light of the circumstances under which they were made, not misleading. The Company has heretofore made available As of the date of this Agreement, there are no outstanding or promptly will make available to unresolved comments in comment letters received from the Purchaser, a complete and correct copy of any amendment SEC with respect to the SEC Reports. To the knowledge of the Company, none of the SEC Reports is the subject of ongoing SEC review and there are no inquiries or investigations by the SEC or any internal investigations pending or threatened, in each case regarding any accounting practices of the Company. None of the Company’s Subsidiaries of the Company is required to file any reportsforms, statements, forms reports or other documents with the SEC.
(b) The SEC Reports contain audited consolidated balance sheets . No executive officer of the Company and its Subsidiaries as has failed to make the certifications required of December 31 in each him or her under Section 302 or 906 of the years 1995 through 1998, and the related audited consolidated statements of income, statements of cash flow and changes in Shareholders' equity of the Company and its Subsidiaries for the fiscal years then ended, together ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act with the respective reports thereon of KPMG LLPrespect to any SEC Report. These audited financial statements of the Company were included or incorporated by reference in the SEC Reports (collectively, including the footnotes thereto, the "SEC Financial Statements"), were prepared in accordance with GAAP (except as otherwise stated in the SEC Financial Statements or in the related reports of the Company's independent accountants) and present fairly the consolidated financial position of the Company and its subsidiaries as at the dates thereof, and the results of operations, changes in financial position and statements of Shareholders' equity of the Company and its Subsidiaries for the periods indicated. No event has occurred since the Balance Sheet Date that would require a restatement of the SEC Financial Statements under GAAP other than by reason of a change in GAAP. The SEC Financial Statements reflect, and on the Closing Date will reflect, the interest of the Company in the assets, liabilities and operations of all Subsidiaries of the Company.
(c) Neither the Company nor any of its Subsidiaries executive officers has received notice from any material liabilityGovernmental Authority challenging or questioning the accuracy, obligation completeness, form or commitment manner of any nature whatsoever (whether known or unknown due or to become due, accrued, fixed, contingent, liquidated, unliquidated or otherwise) other than liabilities, obligations or commitments (i) which are accrued or reserved against filing of such certifications. The Company qualifies as an “emerging growth company” as defined in the consolidated balance sheet of the Company and its consolidated subsidiaries as of December 31, 1999 included in the Audited Financial Statements or reflected in the notes thereto, (ii)(x) which arose in the ordinary course of business since such date and (y) which do not or would not individually or in the aggregate have a Material Adverse Effect, or (iii) which are of the type that would not be required to be reflected on a consolidated balance sheet of the Company and its Subsidiaries or in the notes thereto if such balance sheet were prepared in accordance with GAAP as of the date thereof or as of the Closing Date, as the case may beJumpstart Our Business Startups Act.
(d) Except as set forth on Schedule 5.25(d), since the date of the Company's 1999 Proxy Statement to the date hereof, the Company has not entered into or otherwise become obligated with respect to any transactions which would require disclosure pursuant to Item 404 of Regulation S-K in accordance with Items 7(b) or (c) of Schedule 14A under the Exchange Act were a Company proxy statement to be distributed as of the date hereof.
Appears in 2 contracts
Sources: Acquisition Agreement (Ca, Inc.), Acquisition Agreement (Rally Software Development Corp)
SEC Reports. (aNotwithstanding that the Company may not be subject to the reporting requirements of Section 13 or 15(d) The Company has filed all required formsof the Exchange Act, reports and documents with to the SEC since December 31extent permitted by the Exchange Act, 1995 (collectively, the "SEC Reports"), except that the Company will file with the SEC, and make available to the Initial Holder, the Trustee and the registered Holders of the Securities:
(1) all quarterly and annual financial information that would be required to be contained in a Notification of Late Filing on Form 126-25 notifying filing with the SEC that its Form on Forms 10-Q and 10-K for its 1999 fiscal year could not if the Company were required to file such Forms, including a “Management’s Discussion and Analysis of Financial Condition and Results of Operations” and, with respect to the annual information only, a report on the annual financial statements by the Company’s certified independent accountants; and
(2) all current reports that would be required to be filed within the prescribed time period. Each of with the SEC Reports has complied in all material respects on Form 8-K if the Company were required to file such reports. In the event that the Company is not permitted to file such reports, documents and information with all applicable requirements of the Securities Act and SEC pursuant to the Exchange Act, each the Company will nevertheless make available such Exchange Act information to the Initial Holder, the Trustee and the Holders of the Securities as if the Company were subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act within 15 days of the time periods specified therein or in effect the relevant Forms. If the Company has designated any of its Subsidiaries as Unrestricted Subsidiaries, then the quarterly and annual financial information required by the preceding paragraph shall include a reasonably detailed presentation, either on the dates so filed. None face of such forms, reports or documents, including, without limitation, any the financial statements or schedules included or incorporated by reference thereinin the footnotes to the financial statements and in Management’s Discussion and Analysis of Financial Condition and Results of Operations, contained, when filed, any untrue statement of a material fact or omitted to state a material fact required to be stated or incorporated by reference 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 heretofore made available or promptly will make available to the Purchaser, a complete financial condition and correct copy results of any amendment to the SEC Reports. None of the Subsidiaries of the Company is required to file any reports, statements, forms or other documents with the SEC.
(b) The SEC Reports contain audited consolidated balance sheets operations of the Company and its Subsidiaries as of December 31 in each of Restricted Subsidiaries. The Parent may satisfy the years 1995 through 1998, and the related audited consolidated statements of income, statements of cash flow and changes in Shareholders' equity obligations of the Company and its Subsidiaries set forth above; provided that (x) the financial information filed with the SEC or delivered to Holders pursuant to this covenant should include consolidating financial statements for the fiscal years then endedParent, together with the respective reports thereon of KPMG LLP. These audited financial statements of Company, the Company were included or incorporated by reference Subsidiary Guarantors and the Subsidiaries that are not Subsidiary Guarantors in the SEC Reports (collectively, including the footnotes thereto, the "SEC Financial Statements"), were prepared in accordance with GAAP (except as otherwise stated in form prescribed by the SEC Financial Statements or and (y) the Parent is not engaged in the related reports of the Company's independent accountants) and present fairly the consolidated financial position of the Company and its subsidiaries as at the dates thereof, and the results of operations, changes any business in financial position and statements of Shareholders' equity of the Company and its Subsidiaries for the periods indicated. No event has occurred since the Balance Sheet Date that would require a restatement of the SEC Financial Statements under GAAP any material respect other than by reason of a change in GAAP. The SEC Financial Statements reflectincidental to its ownership, and on the Closing Date will reflectdirectly or indirectly, the interest of the Company in the assets, liabilities and operations of all Subsidiaries of the Company.
(c) Neither the Company nor any of its Subsidiaries has any material liability, obligation or commitment of any nature whatsoever (whether known or unknown due or to become due, accrued, fixed, contingent, liquidated, unliquidated or otherwise) other than liabilities, obligations or commitments (i) which are accrued or reserved against in the consolidated balance sheet of the Company and its consolidated subsidiaries as of December 31, 1999 included in the Audited Financial Statements or reflected in the notes thereto, (ii)(x) which arose in the ordinary course of business since such date and (y) which do not or would not individually or in the aggregate have a Material Adverse Effect, or (iii) which are of the type that would not be required to be reflected on a consolidated balance sheet of the Company and its Subsidiaries or in the notes thereto if such balance sheet were prepared in accordance with GAAP as of the date thereof or as of the Closing Date, as the case may be.
(d) Except as set forth on Schedule 5.25(d), since the date of the Company's 1999 Proxy Statement to the date hereof, the Company has not entered into or otherwise become obligated with respect to any transactions which would require disclosure pursuant to Item 404 of Regulation S-K in accordance with Items 7(b) or (c) of Schedule 14A under the Exchange Act were a Company proxy statement to be distributed as of the date hereof.
Appears in 2 contracts
Sources: Indenture (Libbey Inc), Indenture (Libbey Inc)
SEC Reports. (a) The Company has Company, AHD and APL have each timely filed or furnished on a timely basis all required reports, schedules, forms, reports statements and other documents required to be filed or furnished by it under the Securities Act, the Exchange Act or the S▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002 (including the rules and regulations promulgated thereunder, collectively, the “S▇▇▇▇▇▇▇-▇▇▇▇▇ Act”) with the SEC since December 31January 1, 1995 2008 (collectivelytogether with all exhibits, financial statements and schedules thereto and all information incorporated therein by reference, the "“SEC Reports")Documents” and, except that such reports, schedules, forms, statements and other documents filed or furnished by the Company will file a Notification together with all exhibits, financial statements and schedules thereto and all information incorporated therein by reference, the “Company SEC Documents”). As of Late Filing on Form 126-25 notifying its respective date, or, if amended prior to the SEC that its Form 10-K for its 1999 fiscal year could not be date hereof, as of the date of the last such amendment, and giving effect to any amendments or supplements thereto filed within prior to the prescribed time period. Each date hereof, each of the SEC Reports has Documents complied when filed or furnished (or, if applicable, when amended) in all material respects with all applicable the requirements of the Securities Act, the Exchange Act and the Exchange S▇▇▇▇▇▇▇-▇▇▇▇▇ Act, in each as case to the extent applicable to such SEC Documents, and none of the SEC Documents when filed or furnished (or in effect on the dates so filed. None case of such formsa registration statement under the Securities Act, reports or documents, including, without limitation, any financial statements or schedules included or incorporated by reference therein, contained, when filed, 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 or incorporated by reference 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 heretofore made available misleading (and no SEC Document that is a registration statement, as amended or promptly will make available supplemented, if applicable, filed pursuant to the PurchaserSecurities Act, as of the date such registration statement or amendment became effective, contained any untrue statement of a complete material fact or omitted to state any material fact required to be stated therein or necessary to make the statements therein not misleading). Other than AHD, APL and correct copy ATN, no Company Subsidiary is, or has at any time since January 1, 2008, been subject to the periodic reporting requirements of the Exchange Act or is or has at any time since January 1, 2008 been otherwise required to make periodic or recurring filings of any amendment to form, report, statement, schedule, certificate or other document with the SEC Reports. None or any foreign Governmental Entity that performs a similar function to that of the Subsidiaries of the Company is required to file any reports, statements, forms or other documents with the SEC.
(b) Each of the Company, AHD and APL is in compliance in all material respects with the applicable provisions of the S▇▇▇▇▇▇▇-▇▇▇▇▇ Act and the applicable listing and governance rules and regulations of NASDAQ or the New York Stock Exchange, as applicable. Neither the Company nor any Company Subsidiary has outstanding (nor has arranged or modified since the enactment of the S▇▇▇▇▇▇▇-▇▇▇▇▇ Act) any “extensions of credit” (within the meaning of Section 402 of the S▇▇▇▇▇▇▇-▇▇▇▇▇ Act) to directors or executive officers (as defined in Rule 3b-7 under the Exchange Act) of the Company or any Company Subsidiaries.
(c) (i) The SEC Reports contain audited consolidated balance sheets Company Financial Statements have been derived from the accounting books and records of the Company and its Subsidiaries as of December 31 in each of the years 1995 through 1998, and the related audited consolidated statements of income, statements of cash flow and changes in Shareholders' equity of the Company Subsidiaries, (ii) the AHD Financial Statements have been derived from the accounting books and records of AHD and its Subsidiaries for and (iii) the fiscal years then endedAPL Financial Statements have been derived from the accounting books and records of APL and its Subsidiaries and, together in each case, (x) as of their respective dates of filing with the respective reports thereon of KPMG LLP. These audited financial statements SEC complied as to form in all material respects with the applicable accounting requirements and with the published rules and regulations of the Company were included or incorporated by reference in the SEC Reports (collectively, including the footnotes with respect thereto, the "SEC Financial Statements"), (y) were prepared in accordance with GAAP United States generally accepted accounting principles (“GAAP”) applied on a consistent basis during the periods involved (except as otherwise stated may be indicated in the SEC Financial Statements or notes thereto and except, in the related reports case of the Company's independent accountantsunaudited interim statements, as may be permitted by Form 10-Q and Regulation S-X of the SEC) and present (z) fairly present, in all material respects, the consolidated financial position of the Company and its subsidiaries consolidated Subsidiaries, AHD and its consolidated Subsidiaries or APL and its consolidated Subsidiaries, as the case may be, as at the respective dates thereof, and the consolidated results of their operations, changes 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 to any other adjustments described therein, including the notes thereto). Since December 31, 2007 through the date of this Agreement, there has not been any material change in any method of financial position accounting by the Company, AHD or APL, except as required by GAAP and statements disclosed in the SEC Documents filed prior to the date hereof.
(d) As of Shareholders' equity the date hereof, there are no outstanding or unresolved comments in any comment letters of the staff of the SEC received by the Company, AHD or APL relating to the SEC Documents applicable to them. The Company has heretofore made available to Parent true, correct and complete copies of all written correspondence between the Company, AHD or APL, as applicable, on the one hand, and the SEC, on the other hand, occurring since January 1, 2008. None of the SEC Documents is, to the knowledge of the Company and its Subsidiaries for the periods indicated. No event has occurred since the Balance Sheet Date that would require a restatement as of the SEC Financial Statements under GAAP other than by reason of a change in GAAP. The SEC Financial Statements reflect, and on the Closing Date will reflectdate hereof, the interest subject of the Company in the assets, liabilities and operations of all Subsidiaries of the Companyongoing SEC review.
(ce) Neither the Company nor any of its Subsidiaries has Company Subsidiary is a party to, nor does it have any material liability, obligation or commitment of any nature whatsoever (whether known or unknown due or to become duea party to, accruedany joint venture, fixed, contingent, liquidated, unliquidated or otherwise) other than liabilities, obligations or commitments (i) which are accrued or reserved against in the consolidated off-balance sheet of partnership or any similar Contract (including any Contract relating to any transaction or relationship between or among the Company or a Company Subsidiary, on the one hand, and its consolidated subsidiaries as of December 31any unconsolidated Affiliate, 1999 included in including any structured finance, special purpose or limited purpose entity or Person, on the Audited Financial Statements other hand) or reflected in the notes thereto, (ii)(x) which arose in the ordinary course of business since such date and (y) which do not or would not individually or in the aggregate have a Material Adverse Effect, or (iii) which are of the type that would not be required to be reflected on a consolidated any “off-balance sheet of the Company and its Subsidiaries or arrangements” (as defined in the notes thereto if such balance sheet were prepared in accordance with GAAP as of the date thereof or as of the Closing Date, as the case may be.
(dItem 303(a) Except as set forth on Schedule 5.25(d), since the date of the Company's 1999 Proxy Statement to the date hereof, the Company has not entered into or otherwise become obligated with respect to any transactions which would require disclosure pursuant to Item 404 of Regulation S-K in accordance with Items 7(b) of the SEC), where the result, purpose or (c) effect of Schedule 14A under such Contract is to avoid disclosure of any material transaction involving, or material liabilities of, the Exchange Act were Company or a Company proxy statement to be distributed as of Subsidiary in the date hereofCompany Financial Statements, the AHD Financial Statements, the APL Financial Statements or other SEC Documents.
Appears in 1 contract
SEC Reports. (a) 2.5.1 The Company has filed all required forms, reports and documents with the SEC since December 31, 1995 1993 (collectively, the "SEC Reports"), except that the Company will file a Notification each of Late Filing on Form 126-25 notifying the SEC that its Form 10-K for its 1999 fiscal year could not be filed within the prescribed time period. Each of the SEC Reports which has complied in all material respects with all applicable requirements of the Securities Act and the Exchange Act. As of their respective dates, each as in effect on none of the dates so filed. None of such forms, reports or documentsSEC Reports, including, without limitation, any financial statements or schedules included or incorporated by reference therein, contained, when filed, contained any untrue statement of a material fact or omitted to state a material fact required to be stated or incorporated by reference 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 heretofore made available or promptly will make available to the Purchaser, a complete and correct copy of any amendment to the SEC Reports. None of the Subsidiaries of the Company is required to file any reports, statements, forms or other documents with the SEC.
(b) The SEC Reports contain audited consolidated balance sheets of the Company financial statements and its Subsidiaries as of December 31 in each of the years 1995 through 1998, and the related audited unaudited consolidated statements of income, statements of cash flow and changes in Shareholders' equity of the Company and its Subsidiaries for the fiscal years then ended, together with the respective reports thereon of KPMG LLP. These audited interim financial statements of the Company were included or incorporated by reference in the SEC Reports (collectivelyfairly present, including the footnotes thereto, the "SEC Financial Statements"), were prepared in accordance conformity with GAAP generally accepted accounting principles applied on a consistent basis (except as otherwise stated may be indicated in the SEC Financial Statements or in the related reports of the Company's independent accountants) and present fairly notes thereto), the consolidated financial position of the Company and its consolidated subsidiaries as at of the dates thereof, thereof and the their consolidated results of operations, changes in financial position operations and statements of Shareholders' equity of the Company and its Subsidiaries cash flows for the periods indicatedthen ended (subject to normal year- end adjustments in the case of any unaudited interim financial statements). No event The Company has occurred since the Balance Sheet Date that would require a restatement previously provided complete and correct copies of each of the SEC Financial Statements under GAAP other than by reason Reports filed on or prior to the date of a change in GAAP. The SEC Financial Statements reflect, and on the Closing Date will reflect, the interest of the Company in the assets, liabilities and operations of all Subsidiaries of the Companythis Agreement to Purchaser.
(c) Neither the Company nor any of its Subsidiaries has any material liability, obligation or commitment of any nature whatsoever (whether known or unknown due or to become due, accrued, fixed, contingent, liquidated, unliquidated or otherwise) other than liabilities, obligations or commitments (i) which are accrued 2.5.2 Except as reflected or reserved against in the consolidated balance sheet of the Company and its consolidated subsidiaries as of December 3130, 1999 included in 1996 previously provided to Purchaser by the Audited Financial Statements Company (the "December 30 Financials"), the Company and its subsidiaries have no liabilities of any nature (whether arising out of contract, tort, statute or reflected in the notes theretootherwise and whether direct or indirect, (ii)(xaccrued, matured or unmatured, asserted or unassorted, absolute, contingent or otherwise) which arose would be required to be reflected on a balance sheet prepared in accordance with generally accepted accounting principles (all of such liabilities being collectively referred to as "Liabilities"), except for Liabilities incurred in the ordinary course of business since such date and (y) December 30, 1996 which do not or would not not, individually or in the aggregate aggregate, have a Material Adverse Effect, or (iii) which are of the type that would not be required to be reflected Effect on a consolidated balance sheet of the Company and its Subsidiaries or in the notes thereto if such balance sheet were prepared in accordance with GAAP as of the date thereof or as of the Closing Date, as the case may be.
(d) Except as set forth on Schedule 5.25(d), since the date of the Company's 1999 Proxy Statement to the date hereof, the Company has not entered into or otherwise become obligated with respect to any transactions which would require disclosure pursuant to Item 404 of Regulation S-K in accordance with Items 7(b) or (c) of Schedule 14A under the Exchange Act were a Company proxy statement to be distributed as of the date hereof.
Appears in 1 contract
Sources: Stock Purchase and Sale Agreement (Chart House Enterprises Inc)
SEC Reports. (a) The Company has Parent and each of its Subsidiaries have timely filed or furnished, as applicable, all reports, registrations and statements, together with any amendments required to be made with respect thereto, that they were required to file or furnish, as applicable, in the twelve (12) months period prior to the date hereof with any Governmental Entity, including any report, registration or statement required to be filed or furnished, as applicable, pursuant to the Laws of the United States, any state, any foreign entity, or any Governmental Entity, and have paid all fees and assessments due and payable in connection therewith, in each case, except where the failure to do so would not have a material adverse effect on Parent and its Significant Subsidiaries taken as a whole or have a material adverse effect on the ability of Parent to consummate the Transactions.
(b) An accurate and complete copy of each final registration statement, prospectus, report, schedule and definitive proxy statement filed with or furnished to the SEC since October 1, 2015 by Parent or any of its Subsidiaries pursuant to the Securities Act or the Exchange Act (together with those forms, reports and other documents filed by Parent with the SEC since December 31subsequent to the date of this Agreement, 1995 (collectivelyif any, the "SEC “Parent Reports")”) has been made publicly available. No such Parent Report (and, except that in the Company will file a Notification case of Late Filing on Form 126-25 notifying the SEC that its Form 10-K for its 1999 fiscal year could not be filed within the prescribed time period. Each of the SEC Reports has complied in all material respects with all applicable requirements of the Securities Act registration statements and the Exchange Actproxy statements, each as in effect on the dates so filed. None of such formseffectiveness and the dates of the relevant meetings, reports or documents, including, without limitation, any financial statements or schedules included or incorporated by reference therein, contained, when filed, respectively) contained any untrue statement of a material fact or omitted to state a any material fact required to be stated or incorporated by reference therein or necessary in order to make the statements therein, in light of the circumstances under in which they were made, not misleading, except that information filed or furnished as of a later date (but before the date of this Agreement) shall be deemed to modify information as of an earlier date. The Company has heretofore made available As of their respective dates, all Parent Reports filed or promptly will make available to furnished under the Purchaser, a complete Securities Act and correct copy of any amendment to the SEC Reports. None of the Subsidiaries of the Company is required to file any reports, statements, forms or other documents Exchange Act complied in all material respects with the SEC.
(b) The SEC Reports contain audited consolidated balance sheets of the Company published rules and its Subsidiaries as of December 31 in each of the years 1995 through 1998, and the related audited consolidated statements of income, statements of cash flow and changes in Shareholders' equity of the Company and its Subsidiaries for the fiscal years then ended, together with the respective reports thereon of KPMG LLP. These audited financial statements of the Company were included or incorporated by reference in the SEC Reports (collectively, including the footnotes thereto, the "SEC Financial Statements"), were prepared in accordance with GAAP (except as otherwise stated in the SEC Financial Statements or in the related reports of the Company's independent accountants) and present fairly the consolidated financial position of the Company and its subsidiaries as at the dates thereof, and the results of operations, changes in financial position and statements of Shareholders' equity of the Company and its Subsidiaries for the periods indicated. No event has occurred since the Balance Sheet Date that would require a restatement regulations of the SEC Financial Statements with respect thereto. No executive officer of Parent has failed in any respect to make the certifications required of him or her under GAAP other than by reason of a change in GAAP. The SEC Financial Statements reflect, and on the Closing Date will reflect, the interest Section 302 or 906 of the Company in ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002 (the assets, liabilities and operations of all Subsidiaries of the Company.
(c) Neither the Company nor any of its Subsidiaries has any material liability, obligation or commitment of any nature whatsoever (whether known or unknown due or to become due, accrued, fixed, contingent, liquidated, unliquidated or otherwise) other than liabilities, obligations or commitments (i) which are accrued or reserved against in the consolidated balance sheet of the Company and its consolidated subsidiaries as of December 31, 1999 included in the Audited Financial Statements or reflected in the notes thereto, (ii)(x) which arose in the ordinary course of business since such date and (y) which do not or would not individually or in the aggregate have a Material Adverse Effect, or (iii) which are of the type that would not be required to be reflected on a consolidated balance sheet of the Company and its Subsidiaries or in the notes thereto if such balance sheet were prepared in accordance with GAAP as “▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act”). As of the date thereof of this Agreement, there are no outstanding comments from or as of unresolved issues raised by the Closing Date, as the case may be.
(d) Except as set forth on Schedule 5.25(d), since the date of the Company's 1999 Proxy Statement to the date hereof, the Company has not entered into or otherwise become obligated SEC with respect to any transactions which would require disclosure pursuant to Item 404 of Regulation S-K in accordance with Items 7(b) or (c) of Schedule 14A under the Exchange Act were a Company proxy statement to be distributed as of the date hereofParent Reports.
Appears in 1 contract
Sources: Merger Agreement (PJT Partners Inc.)
SEC Reports. (a) The Except as set forth in the SEC Reports, the Company has filed all required reports, schedules, forms, reports statements and other documents required to be filed by the Company under the Act and the Exchange Act, including pursuant to Section 13(a) or 15(d) thereof, for the two (2) years preceding the date hereof (or such shorter period as the Company was required by law or regulation to file such material) (the foregoing materials, including the exhibits thereto and documents incorporated by reference therein, together with the SEC since December 31Prospectus and the Prospectus Supplement, 1995 (collectively, being collectively referred to herein as the "“SEC Reports")”) on a timely basis or has received a valid extension of such time of filing and has filed any such SEC Reports prior to the expiration of any such extension. As of their respective dates, except that the Company will file a Notification of Late Filing on Form 126-25 notifying the SEC that its Form 10-K for its 1999 fiscal year could not be filed within the prescribed time period. Each of the SEC Reports has complied in all material respects with all applicable the requirements of the Securities Act and the Exchange Act, each as in effect on applicable, and none of the dates so filed. None of such forms, reports or documents, including, without limitation, any financial statements or schedules included or incorporated by reference therein, containedSEC Reports, when filed, contained any untrue statement of a material fact or omitted to state a material fact required to be stated or incorporated by reference therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. The Company has heretofore made available or promptly will make available to the Purchaser, a complete and correct copy of any amendment to the SEC Reports. None of the Subsidiaries of the Company is required to file any reports, statements, forms or other documents with the SEC.
(b) The SEC Reports contain audited consolidated balance sheets of the Company and its Subsidiaries as of December 31 in each of the years 1995 through 1998, and the related audited consolidated statements of income, statements of cash flow and changes in Shareholders' equity of the Company and its Subsidiaries for the fiscal years then ended, together with the respective reports thereon of KPMG LLP. These audited financial statements of the Company were included or incorporated by reference in the SEC Reports (collectively, including comply in all material respects with applicable accounting requirements and the footnotes theretorules and regulations of the Commission with respect thereto as in effect at the time of filing. No other financial statements or supporting schedules are required to be included in the Registration Statement, the "SEC Financial Statements")Base Prospectus, were any Prospectus Supplement or the Prospectus. Such financial statements have been prepared in accordance with GAAP United States generally accepted accounting principles applied on a consistent basis during the periods involved (“GAAP”), except as may be otherwise stated specified in such financial statements or the SEC Financial Statements or notes thereto and except that unaudited financial statements may not contain all footnotes required by GAAP, and fairly present in all material respects the related reports of the Company's independent accountants) and present fairly the consolidated financial position of the Company and its subsidiaries consolidated Subsidiaries as at of and for the dates thereof, thereof and the results of operations, changes in financial position operations and statements of Shareholders' equity of the Company and its Subsidiaries cash flows for the periods indicated. No event has occurred since the Balance Sheet Date that would require a restatement of the SEC Financial Statements under GAAP other than by reason of a change in GAAP. The SEC Financial Statements reflectthen ended, and on the Closing Date will reflectsubject, the interest of the Company in the assetscase of unaudited statements, liabilities and operations of all Subsidiaries of the Companyto normal, immaterial, year-end audit adjustments.
(c) Neither the Company nor any of its Subsidiaries has any material liability, obligation or commitment of any nature whatsoever (whether known or unknown due or to become due, accrued, fixed, contingent, liquidated, unliquidated or otherwise) other than liabilities, obligations or commitments (i) which are accrued or reserved against in the consolidated balance sheet of the Company and its consolidated subsidiaries as of December 31, 1999 included in the Audited Financial Statements or reflected in the notes thereto, (ii)(x) which arose in the ordinary course of business since such date and (y) which do not or would not individually or in the aggregate have a Material Adverse Effect, or (iii) which are of the type that would not be required to be reflected on a consolidated balance sheet of the Company and its Subsidiaries or in the notes thereto if such balance sheet were prepared in accordance with GAAP as of the date thereof or as of the Closing Date, as the case may be.
(d) Except as set forth on Schedule 5.25(d), since the date of the Company's 1999 Proxy Statement to the date hereof, the Company has not entered into or otherwise become obligated with respect to any transactions which would require disclosure pursuant to Item 404 of Regulation S-K in accordance with Items 7(b) or (c) of Schedule 14A under the Exchange Act were a Company proxy statement to be distributed as of the date hereof.
Appears in 1 contract
SEC Reports. (a) The Company has filed all required forms, reports and documents will file with the SEC since December 31all information, 1995 (collectively, the "SEC Reports"), except that the Company will file a Notification of Late Filing on Form 126-25 notifying documents and reports to be filed with the SEC that its Form 10-K for its 1999 fiscal year could not be filed within the prescribed time period. Each pursuant to Section 13 or 15(d) of the SEC Reports has complied in all material respects with all applicable requirements of the Securities Act and the Exchange Act, each as in effect on the dates so filed. None of such forms, reports whether or documents, including, without limitation, any financial statements or schedules included or incorporated by reference therein, contained, when filed, any untrue statement of a material fact or omitted to state a material fact required to be stated or incorporated by reference 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 heretofore made available or promptly will make available to the Purchaser, a complete and correct copy of any amendment to the SEC Reports. None of the Subsidiaries of the Company is required subject to file any reportssuch filing requirements, statementsso long as the SEC will accept such filings; provided, forms or other documents with the SEC.
(b) The SEC Reports contain audited consolidated balance sheets of however, that the Company and its Subsidiaries as of December 31 in each of the years 1995 through 1998, and the related audited consolidated statements of income, statements of cash flow and changes in Shareholders' equity of the Company and its Subsidiaries for the fiscal years then ended, together with the respective reports thereon of KPMG LLP. These audited financial statements of the Company were included or incorporated by reference in the SEC Reports (collectively, including the footnotes thereto, the "SEC Financial Statements"), were prepared in accordance with GAAP (except as otherwise stated in the SEC Financial Statements or in the related reports of the Company's independent accountants) and present fairly the consolidated financial position of the Company and its subsidiaries as at the dates thereof, and the results of operations, changes in financial position and statements of Shareholders' equity of the Company and its Subsidiaries for the periods indicated. No event has occurred since the Balance Sheet Date that would require a restatement of the SEC Financial Statements under GAAP other than by reason of a change in GAAP. The SEC Financial Statements reflect, and on the Closing Date will reflect, the interest of the Company in the assets, liabilities and operations of all Subsidiaries of the Company.
(c) Neither the Company nor any of its Subsidiaries has any material liability, obligation or commitment of any nature whatsoever (whether known or unknown due or to become due, accrued, fixed, contingent, liquidated, unliquidated or otherwise) other than liabilities, obligations or commitments (i) which are accrued or reserved against in the consolidated balance sheet of the Company and its consolidated subsidiaries as of December 31, 1999 included in the Audited Financial Statements or reflected in the notes thereto, (ii)(x) which arose in the ordinary course of business since such date and (y) which do not or would not individually or in the aggregate have a Material Adverse Effect, or (iii) which are of the type that would shall not be required to make any such filings prior to the date on which the Company's Quarterly Report on Form 10-Q for the fiscal quarter ended July 31, 1997 would have been required to be reflected on a consolidated balance sheet filed if, at the time such filings would have been required to be made with the SEC, either (i) the Company shall have provided to each Holder of the Company and its Subsidiaries Notes the information that would have been required to be filed or (ii) the Exchange Registration Statement (as such term is defined in the notes thereto if such balance sheet were prepared in accordance Registration Rights Agreement) has been filed with GAAP as the SEC but has not yet been declared effective and copies of the date thereof Exchange Offer Registration Statement and any amendments thereto (to the extent such Registration Statement and/or amendments contain additional information not disclosed in the Offering Memorandum that would have been the subject of a filing required to be made under Section 13 or as 15(d) of the Closing DateExchange Act) have been provided to each Holder of the Notes, provided that any exhibits to the Exchange Registration Statement (or any amendments thereto) need not be delivered to any Holder of the Notes, but sufficient copies thereof shall be furnished to the Trustee as reasonably requested to permit the Trustee to deliver any such exhibits to any Holder of the Notes upon request. The Company (at its own expense) shall file with the Trustee within 100 days after the end of each fiscal year of the Company, or within 50 days after the end of each of the first three fiscal quarters of each fiscal year of the Company, as the case may be, copies of the annual reports or unaudited quarterly consolidated financial statements, as the case may be, and the information, documents and other reports (or copies of such portions of any of the foregoing as the SEC may be rules and regulations prescribe) which the Company files with the SEC pursuant to Section 13 or 15(d) of the Exchange Act. Upon qualification of this Indenture under the TIA, the Company shall also comply with the provisions of TIA Section 314(a).
(db) Except as set forth on Schedule 5.25(d)At the Company's expense, since regardless of whether the date Company is required to furnish such reports and other information referred to in paragraph (a) above to its stockholders pursuant to the Exchange Act, the Company shall cause such reports and other information to be mailed to the Holders at their addresses appearing in the register of Notes maintained by the Registrar within 100 days after the end of each fiscal year of the Company's 1999 Proxy Statement , or within 50 days after the end of each of the first three fiscal quarters of each fiscal year of the Company, as the case may be. Such reports shall be delivered to the date hereofRegistrar and the Registrar will mail them, at the Company has not entered into or otherwise become obligated with respect Company's expense, to any transactions which would require disclosure pursuant to Item 404 the Holders at their addresses appearing in the register of Regulation S-K in accordance with Items 7(b) or Notes maintained by the Registrar.
(c) The Company shall, upon request, provide to any Holder of Schedule 14A Notes or any prospective transferee of any such Holder any information concerning the Company (including financial statements) necessary in order to permit such Holder to sell or transfer Notes in compliance with Rule 144A under the Exchange Act were a Securities Act; provided, however, that the Company proxy statement shall not be required to furnish such information in connection with any request made on or after the date which is three years (or such other date as the Notes shall be distributed as freely transferable pursuant to Rule 144) from the later of (i) the date such Note (or any predecessor Note) was acquired from the Company or (ii) the date such Note (or any predecessor Note) was last acquired from an "affiliate" of the date hereofCompany within the meaning of Rule 144 under the Securities Act.
Appears in 1 contract
Sources: Indenture (Ski Lifts Inc)
SEC Reports. (a) The Company Parent has filed all documents, including all annual, quarterly and other reports, Registration Statements, proxy statements and other statements, reports, schedules, forms and other documents (including all exhibits, financial statements and the schedules thereto, and all other information incorporated by reference), required forms, reports and documents to be filed by Parent with the SEC U.S. Securities and Exchange Commission (“SEC”) since December 31, 1995 2016 (collectively, the "“SEC Reports"”). Since the date of the last SEC Report, there has not been the occurrence of any event, the occurrence of which resulted in, or would reasonably be likely to result in, a material adverse effect with respect to Parent and its Subsidiaries, taken as a whole.
(b) The SEC Reports (i) at the time filed (or furnished), except that complied (giving effect to any amendments or supplements thereto filed prior to the Company will file a Notification date of Late Filing on Form 126-25 notifying this Agreement), and, in the SEC that its Form 10-K for its 1999 fiscal year could not be filed within case of Registration Statements, at the prescribed time period. Each of the SEC Reports has complied effectiveness, in all material respects with all the applicable requirements of the Securities Act and or the Exchange ActAct and (ii) at the time they were filed (or if amended or superseded by a filing or amendment prior to the date of this Agreement, each as in effect on then at the dates so filed. None time of such formsfiling or amendment), reports or documentsand, includingin the case of Registration Statements, without limitationat the time of effectiveness, any financial statements or schedules included or incorporated by reference therein, contained, when filed, 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 in such SEC Reports or necessary in order to make the statements thereinmade in such SEC Reports, in light of the circumstances under which they were made, not misleading. The Company has heretofore made available or promptly will make available to the Purchaser, a complete and correct copy of any amendment to the SEC Reports. None of the Subsidiaries of the Company is required to file any reports, statements, forms or other documents with the SEC.
(bc) The SEC Reports contain audited consolidated balance sheets of the Company and its Subsidiaries as of December 31 in each of the years 1995 through 1998, and the related audited consolidated statements of income, statements of cash flow and changes in Shareholders' equity of the Company and its Subsidiaries for the fiscal years then ended, together with the respective reports thereon of KPMG LLP. These audited financial statements of the Company were included or incorporated by reference (including any related notes) contained in the SEC Reports (collectively, including the footnotes thereto, the "SEC “Parent Financial Statements"), ”) (i) complied as to form in all material respects with the published rules and regulations of the SEC applicable thereto and (ii) were prepared in accordance with GAAP (except as otherwise stated in the SEC Financial Statements or in the related reports of the Company's independent accountants) GAAP, consistently applied, and present fairly in all material respects the consolidated financial position of the Company and its subsidiaries as at the dates thereof, and the results of operations, changes in financial position and statements operations of Shareholders' equity of the Company Parent and its Subsidiaries (taken as a whole) as of the times and for the periods indicated. No event has occurred since referred to therein, subject in the Balance Sheet Date that would require a restatement case of the SEC Financial Statements under GAAP unaudited financial statements to the absence of footnote disclosures and other than by reason of a change in GAAP. The SEC Financial Statements reflect, presentation items and on the Closing Date will reflect, the interest of the Company in the assets, liabilities and operations of all Subsidiaries of the Company.
(c) Neither the Company nor any of its Subsidiaries has any material liability, obligation or commitment of any nature whatsoever (whether known or unknown due or to become due, accrued, fixed, contingent, liquidated, unliquidated or otherwise) other than liabilities, obligations or commitments (i) which are accrued or reserved against in the consolidated balance sheet of the Company and its consolidated subsidiaries as of December 31, 1999 included in the Audited Financial Statements or reflected in the notes thereto, (ii)(x) which arose in the ordinary course of business since such date and (y) which do not or would not individually or in the aggregate have a Material Adverse Effect, or (iii) which are of the type that would not be required to be reflected on a consolidated balance sheet of the Company and its Subsidiaries or in the notes thereto if such balance sheet were prepared in accordance with GAAP as of the date thereof or as of the Closing Date, as the case may bechanges resulting from normal year-end adjustments.
(d) Except as set forth on Schedule 5.25(d)To Parent’s knowledge, since the date none of the Company's 1999 Proxy Statement to SEC Reports is the date hereofsubject of ongoing SEC review and there are no inquiries or investigations by the SEC or any internal investigations pending or threatened, the Company has not entered into in each case regarding any accounting practices of Parent or otherwise become obligated with respect to any transactions which would require disclosure pursuant to Item 404 of Regulation S-K in accordance with Items 7(b) or (c) of Schedule 14A under the Exchange Act were a Company proxy statement to be distributed as of the date hereofits Subsidiaries.
Appears in 1 contract
SEC Reports. (aWhether or not the Company is subject to the reporting requirements of Section 13 or 15(d) The Company has filed all required formsof the Exchange Act, reports and documents with the SEC since December 31, 1995 (collectively, the "SEC Reports"), except that the Company will file a Notification of Late Filing on Form 126-25 notifying with the SEC (subject to the next sentence) and provide the Trustee and Securityholders with such annual reports and other reports as are specified in Sections 13 and 15(d) of the Exchange Act and applicable to a U.S. corporation subject to such Sections, such reports to be so filed and provided that its Form 10-K the times specified for its 1999 fiscal year could the filings of such reports under such Sections and containing in all material respects, all the information, audit reports and exhibits required for such reports. If at any time, the Company is not be filed subject to the periodic reporting requirements of the Exchange Act for any reason, the Company will nevertheless continue filing the reports specified in the preceding sentence with the SEC within the prescribed time periodperiods required unless the SEC will not accept such a filing. Each The Company agrees that it will not take any action for the purpose of causing the SEC not to accept any such filings. If notwithstanding the foregoing, the SEC will not accept such filings for any reason, the Company will post the reports specified in the preceding sentence on its website within the time periods that would apply if the Company were required to file those reports with the SEC. In addition, in the event that:
(a) the rules and regulations of the SEC Reports has complied in all material respects with all applicable requirements of the Securities Act and the Exchange Actpermit a parent entity to report at such parent entity’s level on a consolidated basis, each as in effect on the dates so filed. None of such forms, reports or documents, including, without limitation, any financial statements or schedules included or incorporated by reference therein, contained, when filed, any untrue statement of a material fact or omitted to state a material fact required to be stated or incorporated by reference 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 heretofore made available or promptly will make available to the Purchaser, a complete and correct copy of any amendment to the SEC Reports. None of the Subsidiaries of the Company is required to file any reports, statements, forms or other documents with the SEC.and
(b) The SEC Reports contain audited such parent entity is a Guarantor of the Securities and is not engaged in any business in any material respect other than incidental to its ownership of the Capital Stock of the Company, such consolidated balance sheets reporting by such parent entity in a manner consistent with that described in this Section 4.02 for the Company will satisfy this Section 4.02. At any time that any of the Company’s Subsidiaries are Unrestricted Subsidiaries, then the quarterly and annual financial information required by the preceding paragraph will include a reasonably detailed presentation, either on the face of the financial statements or in the footnotes thereto, and in “Management’s Discussion and Analysis of Financial Condition and Results of Operations,” of the financial condition and results of operations of the Company and its Restricted Subsidiaries as separate from the financial condition and results of December 31 in each operations of the years 1995 through 1998, and the related audited consolidated statements of income, statements of cash flow and changes in Shareholders' equity of the Company and its Subsidiaries for the fiscal years then ended, together with the respective reports thereon of KPMG LLP. These audited financial statements of the Company were included or incorporated by reference in the SEC Reports (collectively, including the footnotes thereto, the "SEC Financial Statements"), were prepared in accordance with GAAP (except as otherwise stated in the SEC Financial Statements or in the related reports of the Company's independent accountants) and present fairly the consolidated financial position of the Company and its subsidiaries as at the dates thereof, and the results of operations, changes in financial position and statements of Shareholders' equity of the Company and its Subsidiaries for the periods indicated. No event has occurred since the Balance Sheet Date that would require a restatement of the SEC Financial Statements under GAAP other than by reason of a change in GAAP. The SEC Financial Statements reflect, and on the Closing Date will reflect, the interest of the Company in the assets, liabilities and operations of all Unrestricted Subsidiaries of the Company.
(c) Neither . The Company shall conduct a conference call quarterly in which Holders of the Securities may participate to discuss the information furnished pursuant to the preceding paragraphs no later than 15 days after furnishing any such annual or quarterly information. In addition, the Company nor any of its Subsidiaries has any material liability, obligation or commitment of any nature whatsoever (whether known or unknown due or shall furnish to become due, accrued, fixed, contingent, liquidated, unliquidated or otherwise) other than liabilities, obligations or commitments (i) which are accrued or reserved against in the consolidated balance sheet Holder of the Company Securities and its consolidated subsidiaries as to prospective investors, upon the requests of December 31such Holders, 1999 included in the Audited Financial Statements or reflected in the notes thereto, (ii)(x) which arose in the ordinary course of business since such date and (y) which do not or would not individually or in the aggregate have a Material Adverse Effect, or (iii) which are of the type that would not be any information required to be reflected on a consolidated balance sheet of the Company and its Subsidiaries or in the notes thereto if such balance sheet were prepared in accordance with GAAP as of the date thereof or as of the Closing Date, as the case may be.
(d) Except as set forth on Schedule 5.25(d), since the date of the Company's 1999 Proxy Statement to the date hereof, the Company has not entered into or otherwise become obligated with respect to any transactions which would require disclosure delivered pursuant to Item 404 of Regulation S-K in accordance with Items 7(bRule 144A(d)(4) or (c) of Schedule 14A under the Exchange Securities Act were a Company proxy statement to be distributed so long as of any Securities are not freely transferable under the date hereofSecurities Act.
Appears in 1 contract
Sources: Indenture (Affinia Group Intermediate Holdings Inc.)
SEC Reports. (a) The Company has filed all required forms, reports and documents with the SEC since December 31, 1995 (collectively, the "SEC Reports"), except that the Company will file a Notification of Late Filing on Form 126-25 notifying the SEC that its Form 10-K for its 1999 fiscal year could not be filed within the prescribed time period. Each of the SEC Reports has complied in all material respects with requirements to file all applicable requirements of reports, schedules, forms, statements and other documents required to be filed by the Securities Company under the Act and the Exchange Act, each including pursuant to Section 13(a) or 15(d) thereof, for the two years preceding the date hereof (or such shorter period as in effect on the dates so filed. None of Company was required by law or regulation to file such formsmaterial) (the foregoing materials, reports or documents, including, without limitation, any financial statements or schedules included or including the exhibits thereto and documents incorporated by reference therein, containedtogether with the Prospectus and the Prospectus Supplement, being collectively referred to herein as the “SEC Reports”) on a timely basis or has received a valid extension of such time of filing and has filed any such SEC Reports prior to the expiration of any such extension. As of their respective dates, the SEC Reports complied in all material respects with the requirements of the Act and the Exchange Act, as applicable, and none of the SEC Reports, when filed, contained any untrue statement of a material fact or omitted to state a material fact required to be stated or incorporated by reference therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. The Company has heretofore made available or promptly will make available to the Purchaser, a complete and correct copy of any amendment to the SEC Reports. None of the Subsidiaries of the Company is required to file any reports, statements, forms or other documents with the SEC.
(b) The SEC Reports contain audited consolidated balance sheets of the Company and its Subsidiaries as of December 31 in each of the years 1995 through 1998, and the related audited consolidated statements of income, statements of cash flow and changes in Shareholders' equity of the Company and its Subsidiaries for the fiscal years then ended, together with the respective reports thereon of KPMG LLP. These audited financial statements of the Company were included or incorporated by reference in the SEC Reports (collectively, including the footnotes theretoRegistration Statement, the "SEC Financial Statements"), were Prospectus Supplement and the Incorporated Documents and any amendments thereto or supplements thereto comply in all material respects with applicable accounting requirements and the rules and regulations of the Commission with respect thereto as in effect at the time of filing or as amended or corrected in a subsequent filing. Such financial statements have been prepared in accordance with GAAP United States generally accepted accounting principles applied on a consistent basis during the periods involved (“GAAP”), except as may be otherwise stated specified in such financial statements or the SEC Financial Statements or notes thereto and except that unaudited financial statements may not contain all footnotes required by GAAP, and fairly present in all material respects the related reports of the Company's independent accountants) and present fairly the consolidated financial position of the Company and its subsidiaries consolidated Subsidiaries as at of and for the dates thereof, thereof and the results of operations, changes in financial position operations and statements of Shareholders' equity of the Company and its Subsidiaries cash flows for the periods indicated. No event has occurred since the Balance Sheet Date that would require a restatement of the SEC Financial Statements under GAAP other than by reason of a change in GAAP. The SEC Financial Statements reflectthen ended, and on the Closing Date will reflectsubject, the interest of the Company in the assetscase of unaudited statements, liabilities and operations of all Subsidiaries of the Companyto normal, immaterial, year-end audit adjustments.
(c) Neither the Company nor any of its Subsidiaries has any material liability, obligation or commitment of any nature whatsoever (whether known or unknown due or to become due, accrued, fixed, contingent, liquidated, unliquidated or otherwise) other than liabilities, obligations or commitments (i) which are accrued or reserved against in the consolidated balance sheet of the Company and its consolidated subsidiaries as of December 31, 1999 included in the Audited Financial Statements or reflected in the notes thereto, (ii)(x) which arose in the ordinary course of business since such date and (y) which do not or would not individually or in the aggregate have a Material Adverse Effect, or (iii) which are of the type that would not be required to be reflected on a consolidated balance sheet of the Company and its Subsidiaries or in the notes thereto if such balance sheet were prepared in accordance with GAAP as of the date thereof or as of the Closing Date, as the case may be.
(d) Except as set forth on Schedule 5.25(d), since the date of the Company's 1999 Proxy Statement to the date hereof, the Company has not entered into or otherwise become obligated with respect to any transactions which would require disclosure pursuant to Item 404 of Regulation S-K in accordance with Items 7(b) or (c) of Schedule 14A under the Exchange Act were a Company proxy statement to be distributed as of the date hereof.
Appears in 1 contract
SEC Reports. (a) The Company has heretofore filed all required forms, reports and documents with the SEC since December 31, 1995 Securities and Exchange Commission (collectively, the "SEC ReportsSEC") pursuant to the Securities Exchange Act of 1934, as amended (the "Exchange Act"), except that the Company will file a Notification of Late Filing all reports and other documents required to be filed, including an Annual Report on Form 126-25 notifying the SEC that its Form 10-K for its 1999 fiscal the year could not be filed within ended December 31, 1996 (the prescribed time period. Each of the SEC Reports has complied in all material respects with all applicable requirements of the Securities Act and the Exchange Act, each as in effect on the dates so filed"Form 10-K"). None of such formsreports, reports or any other reports, documents, includingregistration statements, without limitation, any financial statements or schedules included or incorporated by reference therein, contained, when filed, definitive proxy materials and other filings required to be filed with the SEC under the rules and regulations of the SEC (the "SEC Filings") contains any untrue statement of a material fact or omitted omits to state a material fact required to be stated or incorporated by reference therein or necessary in order to make the statements thereinmade, at the time and in light of the circumstances under which they were made, not misleading. The Since December 31, 1996, the Company has heretofore made available or promptly will make available to the Purchaser, a complete and correct copy of any amendment to timely filed with the SEC Reports. None all SEC Filings and all such SEC Filings complied in all material respects with all applicable requirements of the Subsidiaries Securities Act of 1933, as amended (the Company is required to file any reports"Securities Act"), statements, forms or other documents with the SEC.
(b) The SEC Reports contain audited consolidated balance sheets of the Company and its Subsidiaries as of December 31 in each of the years 1995 through 1998Exchange Act, and the related audited consolidated statements of income, statements of cash flow and changes in Shareholders' equity of the Company and its Subsidiaries for the fiscal years then ended, together with the respective reports thereon of KPMG LLPrules thereunder. These The audited financial statements of the Company were included or incorporated by reference in the SEC Reports (collectively, including 1996 Annual Report and the footnotes thereto, unaudited financial statements contained in the "SEC Financial Statements"), were quarterly reports on Form 10-Q each have been prepared in accordance with GAAP (such acts and rules and with United States generally accepted accounting principles applied on a consistent basis throughout the periods indicated therein and with each other, except as otherwise stated in the SEC Financial Statements may be indicated therein or in the related reports of notes thereto and except that the Company's independent accountants) unaudited interim financial statements may not contain all footnotes and adjustments required by United States generally accepted accounting principles, and fairly present fairly the consolidated financial position condition of the Company and its subsidiaries as at the dates thereof, thereof and the results of operations, changes in financial position its operations and statements of Shareholders' equity of the Company and its Subsidiaries cash flows for the periods indicatedthen ended, subject, in the case of unaudited interim financial statements, to normal year-end adjustments. No event Except as reflected in such financial statements, the Company has occurred no material liabilities, absolute or contingent, other than ordinary course liabilities incurred since the Balance Sheet Date that would require a restatement date of the SEC Financial Statements under GAAP other than by reason of a change last such financial statements in GAAP. The SEC Financial Statements reflect, and on connection with the Closing Date will reflect, the interest conduct of the Company business of the Company. Since December 31, 1996, except as set forth in the Company's SEC Filings, there has been no:
(a) change in the assets, liabilities and operations of all Subsidiaries of the Company.
(c) Neither the Company nor any of its Subsidiaries has any material liability, obligation or commitment of any nature whatsoever (whether known or unknown due or to become due, accrued, fixed, contingent, liquidated, unliquidated or otherwise) other than liabilities, obligations financial condition or commitments (i) which are accrued or reserved against in the consolidated balance sheet operating results of the Company and its consolidated subsidiaries as of December 31, 1999 included in the Audited Financial Statements or from that reflected in the notes thereto1996 Annual Report, (ii)(x) which arose except changes in the ordinary course of business since such date and (y) which do not or would not that have not, individually or in the aggregate aggregate, resulted in and are not reasonably expected to result in a Material Adverse Effect (and except that the Company expects to continue to incur substantial operating losses, which may be material);
(b) damage, destruction or loss, whether or not covered by insurance, materially and adversely affecting the business, properties or financial condition of the Company (and except that the Company expects to continue to incur substantial operating losses, which may be material);
(c) waiver or compromise by the Company of a material right or of a material debt owed to it;
(d) satisfaction or discharge of any lien, claim or encumbrance by the Company, except in the ordinary course of business and which is not material to the business, properties or financial condition of the Company (as such business is presently conducted);
(e) material change to a material contract or arrangement by which the Company or any of its assets is bound or subject;
(f) sale, assignment or transfer to a third party that is not an affiliate of the Company (as hereafter defined) of any material patents, trademarks, copyrights, trade secrets or other intangible assets for compensation which is less than fair value;
(g) mortgage, pledge, transfer of a security interest in, or lien, created by the Company, with respect to any of its material properties or assets, except liens for taxes not yet due or payable;
(h) declaration, setting aside or payment or other distribution in respect of any of the Company's capital stock, except any direct or indirect redemption, purchase or other acquisition of any such stock by the Company; or
(i) event or condition of any type that has had or is reasonably expected to have a Material Adverse Effect. For purposes of this Section 2.4 of this Agreement, or (iii) which are of the type that would not be required to be reflected on a consolidated balance sheet of the Company and its Subsidiaries or in the notes thereto if such balance sheet were prepared in accordance with GAAP as of the date thereof or as of the Closing Date, as the case may be.
(d) Except as set forth on Schedule 5.25(d), since the date term "affiliate of the Company's 1999 Proxy Statement to the date hereof" means any individual or entity directly or indirectly controlling, controlled by or under common control with, the Company has not entered into Company. Without limiting the foregoing, the direct or otherwise become obligated with respect to any transactions which would require disclosure pursuant to Item 404 indirect ownership of Regulation S-K in accordance with Items 7(b) 50% or (c) of Schedule 14A under the Exchange Act were a Company proxy statement to be distributed as more of the date hereofoutstanding voting securities of any entity, or the right to receive 50% or more of the profits or earnings of an entity, shall be deemed to constitute control.
Appears in 1 contract
Sources: Stock and Warrant Purchase Agreement (Ligand Pharmaceuticals Inc)
SEC Reports. (a) The Company has Heritage MLP's annual report on Form 10-K for the year ended August 31, 1999, and the quarterly and current reports on Form 10-Q and 8-K, if any, filed all required forms, reports and documents by Heritage MLP with the SEC Securities and Exchange Commission ("SEC") since December August 31, 1995 1999 (collectively, the "SEC Reports")) were timely filed with the SEC. Such CONTRIBUTION AGREEMENT EXECUTION COPY DATED JUNE 15, except that 2000 14 documents, at the Company time they were filed with the SEC, complied and will file a Notification of Late Filing on Form 126-25 notifying the SEC that its Form 10-K for its 1999 fiscal year could not be filed within the prescribed time period. Each of the SEC Reports has complied comply in all material respects with all applicable the requirements of the Securities Exchange Act of 1934, as amended (the "Exchange Act") and the rules and regulations of the SEC thereunder (the "Exchange Act, each as in effect on the dates so filed. None of such forms, reports or documents, including, without limitation, any financial statements or schedules included or incorporated by reference therein, contained, when filed, any Act Regulations") and did not include an 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 therein, in light of the circumstances under which they were made, not misleading. The Company has heretofore made available or promptly will make available to the PurchaserIn addition, a complete and correct copy of any amendment to the SEC Reports. None of the Subsidiaries of the Company is required to file any reports, statements, forms or other documents with the SEC.
(b) The SEC Reports contain audited consolidated balance sheets of the Company and its Subsidiaries as of December 31 in each of the years 1995 through 1998, and statements made in such documents within the related audited consolidated statements coverage of income, statements of cash flow and changes in Shareholders' equity Rule 175(b) of the Company rules and its Subsidiaries for regulations under the fiscal years then endedSecurities Act of 1933, together with the respective reports thereon of KPMG LLP. These audited financial statements of the Company were included or incorporated by reference in the SEC Reports as amended (collectively, including the footnotes thereto, the "SEC Financial StatementsSecurities Act"), were prepared in accordance with GAAP (except as otherwise stated in the SEC Financial Statements or in the related reports of the Company's independent accountants) and present fairly the consolidated financial position of the Company and its subsidiaries as at the dates thereof, and the results of operations, changes in financial position and statements of Shareholders' equity of the Company and its Subsidiaries for the periods indicated. No event has occurred since the Balance Sheet Date that would require a restatement of the SEC Financial Statements under GAAP other than was made by reason of a change in GAAP. The SEC Financial Statements reflect, and on the Closing Date will reflect, the interest of the Company in the assets, liabilities and operations of all Subsidiaries of the Company.
(c) Neither the Company nor any of its Subsidiaries has any material liability, obligation or commitment of any nature whatsoever (whether known or unknown due or to become due, accrued, fixed, contingent, liquidated, unliquidated or otherwise) other than liabilities, obligations or commitments (i) which are accrued or reserved against in the consolidated balance sheet of the Company and its consolidated subsidiaries as of December 31, 1999 included in the Audited Financial Statements or reflected in the notes thereto, (ii)(x) which arose in the ordinary course of business since such date and (y) which do not or would not individually or in the aggregate have a Material Adverse EffectHeritage MLP, or (iii) which are of the type that would not be required to be reflected on a consolidated balance sheet of the Company and its Subsidiaries or in the notes thereto if such balance sheet were prepared in accordance with GAAP as of the date thereof or as of the Closing DateHeritage GP, as the case may be, with a reasonable basis and in good faith. Other than the SEC Reports, none of the Heritage Entities nor any of their respective subsidiaries or affiliates is required to file any form, report or other document with the SEC that has not been filed.
(db) Except There are no agreements, contracts, indentures, leases or other instruments that are required to be described in the SEC Reports or to be filed as set forth on Schedule 5.25(d), since the date of the Company's 1999 Proxy Statement exhibits to the date hereof, SEC Reports that are not described or filed as required by the Company has not entered into or otherwise become obligated with respect to any transactions which would require disclosure pursuant to Item 404 of Regulation S-K in accordance with Items 7(b) or Exchange Act.
(c) Since August 31, 1999, no transaction has occurred between or among Heritage GP, Heritage MLP, Heritage MLP's Subsidiaries and any of Schedule 14A under their respective officers, directors, stockholders or affiliates or, to the Exchange Act were a Company proxy statement best knowledge of the Heritage Parties, any affiliate of any such officer, director or stockholder, that is required to be distributed as of described in the date hereofSEC Reports that is not so described.
Appears in 1 contract
Sources: Contribution Agreement (Heritage Propane Partners L P)
SEC Reports. (a) The Company has filed all required forms, reports and documents with the SEC since December 31, 1995 (collectivelySo long as any Notes are outstanding, the "SEC Reports")Company shall furnish to the Trustee:
(1) within 90 days after the end of each fiscal year, except that annual reports of the Company will file a Notification containing substantially all of Late Filing the information that would have been required to be contained in an Annual Report on Form 126-25 notifying the SEC that its Form 10-K for its 1999 fiscal year could not be under the Exchange Act if the Company had been a reporting company under the Exchange Act (but only to the extent similar information was included in the Offering Memorandum), including (A) “Management’s Discussion and Analysis of Financial Condition and Results of Operations” and (B) audited financial statements prepared in accordance with GAAP or, to the extent the Company is a reporting company, the Annual Report on Form 10-K as filed under the Exchange Act;
(2) within 45 days after the prescribed time period. Each end of each of the SEC Reports has complied in all material respects with all applicable requirements first three fiscal quarters of each fiscal year, quarterly reports of the Securities Company containing substantially all of the information that would have been required to be contained in a Quarterly Report on Form 10-Q under the Exchange Act if the Company had been a reporting company under the Exchange Act (but only to the extent similar information was provided in the Offering Memorandum), including (A) “Management’s Discussion and Analysis of Financial Condition and Results of Operations” and (B) unaudited quarterly financial statements prepared in accordance with GAAP and reviewed pursuant to Statement on Auditing Standards No. 100 (or any successor provision) or the Quarterly Report on Form 10-Q under the Exchange Act actually filed while the Company is a reporting company; and
(3) within five Business Days after the occurrence of each event that would have been required to be reported in a Current Report on Form 8-K under the Exchange Act if the Company had been a reporting company under the Exchange Act, each as in effect on current reports containing substantially all of the dates so filed. None of such forms, reports or documents, including, without limitation, any financial statements or schedules included or incorporated by reference therein, contained, when filed, any untrue statement of a material fact or omitted to state a material fact information that would have been required to be stated or incorporated by reference therein or necessary contained in order to make a Current Report on Form 8-K under the statements therein, in light of the circumstances under which they were made, not misleading. The Company has heretofore made available or promptly will make available to the Purchaser, a complete and correct copy of any amendment to the SEC Reports. None of the Subsidiaries of Exchange Act if the Company is had been a reporting company under the Exchange Act; provided, however, that no such current report shall be required to file any reportsbe furnished if the Company determines in its good faith judgment that such event is not material to Holders or the business, statementsassets, forms operations, financial positions or other documents with the SEC.
(b) The SEC Reports contain audited consolidated balance sheets prospects of the Company and its Subsidiaries Subsidiaries, taken as of December 31 in each a whole; provided, however, that such reports (A) shall not be required to comply with Section 302 or Section 404 of the years 1995 through 1998▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002, or related Items 307 and 308 of Regulation S-K promulgated by the related audited consolidated statements SEC, or Item 10(e) of income, statements Regulation S-K (with respect to any non-GAAP financial measures contained therein) and (B) shall not be required to contain the separate financial information for Guarantors contemplated by Rule 3-10 of cash flow and changes in Shareholders' equity Regulation S-X promulgated by the SEC. The availability of the Company and its Subsidiaries for the fiscal years then ended, together with the respective reports thereon of KPMG LLP. These audited financial statements of the Company were included or incorporated by reference in the SEC Reports (collectively, including the footnotes thereto, the "SEC Financial Statements"), were prepared in accordance with GAAP (except as otherwise stated in the SEC Financial Statements or in the related reports of the Company's independent accountants) and present fairly the consolidated financial position of the Company and its subsidiaries as at the dates thereof, and the results of operations, changes in financial position and statements of Shareholders' equity of the Company and its Subsidiaries for the periods indicated. No event has occurred since the Balance Sheet Date that would require a restatement of the SEC Financial Statements under GAAP other than by reason of a change in GAAP. The SEC Financial Statements reflect, and foregoing materials on the Closing Date will reflect, SEC’s ▇▇▇▇▇ service shall be deemed to satisfy the interest of the Company in the assets, liabilities and operations of all Subsidiaries delivery obligation of the Company.
(cb) Neither So long as any Notes are outstanding, the Company nor shall also maintain a public website to which all of the reports required by Section 4.02(a) are posted. In addition, the Company shall furnish to Holders, prospective investors, broker-dealers and securities analysts, upon their request, any information required to be delivered pursuant to Rule 144A(d)(4) under the Securities Act so long as the Notes are not freely transferable under the Securities Act. Delivery of such reports, information and documents to the Trustee is for informational purposes only and the Trustee’s receipt (or constructive receipt) of such shall not constitute actual or constructive notice or knowledge of any information contained therein or determinable from information contained therein, including the Company’s compliance with any of its Subsidiaries covenants hereunder (as to which the Trustee is entitled to conclusively rely on an Officer’s Certificate). The Trustee is not obligated to confirm that the Company has any material liabilitycomplied with its obligations to file such reports with the Commission or post such reports and information on its website. Unless the Company is a reporting company under the Exchange Act, obligation no later than five Business Days after the date the annual and quarterly financial reports have been furnished pursuant to Section 4.02(a), the Company shall use its commercially reasonable efforts to hold a live conference call (which may be a single conference call together with investors and lenders holding other securities or commitment of any nature whatsoever (whether known or unknown due or to become due, accrued, fixed, contingent, liquidated, unliquidated or otherwise) other than liabilities, obligations or commitments (i) which are accrued or reserved against in the consolidated balance sheet Indebtedness of the Company and its consolidated subsidiaries as of December 31, 1999 included in the Audited Financial Statements or reflected in the notes thereto, (ii)(x) which arose in the ordinary course of business since such date and (y) which do not or would not individually or in the aggregate have a Material Adverse Effect, or (iii) which are of the type that would not be required to be reflected on a consolidated balance sheet of the Company and its Subsidiaries or in the notes thereto if such balance sheet were prepared in accordance with GAAP as of the date thereof any direct or as of the Closing Date, as the case may be.
(d) Except as set forth on Schedule 5.25(d), since the date indirect parent of the Company's 1999 Proxy Statement ) with the opportunity for participants to ask questions of management. No fewer than three Business Days prior to the date hereofsuch conference call is to be held, the Company has not entered into or otherwise become obligated with respect shall issue a press release to the appropriate U.S. wire services announcing the time and date of such conference call and direct the recipients thereof to contact an individual at the Company (for whom contact information shall be provided in such notice) to obtain information on how to access such conference call. Notwithstanding any transactions which would require disclosure pursuant to Item 404 of Regulation S-K in accordance with Items 7(b) or (c) of Schedule 14A under the Exchange Act were a Company proxy statement to be distributed as of the date hereofforegoing, the Company shall be deemed to have furnished such reports referred to above to the Trustee and the Holders if it has filed (or, in the case of an Item 2.02 or Item 7.01 Form 8-K, furnished) such reports with the SEC and such reports are publicly available.
Appears in 1 contract
SEC Reports. (a) The Company has timely filed or furnished, as the case may be, all registration statements, proxy statements, reports, forms and other documents required forms, reports and documents to be filed or furnished by it with the with the SEC since December 31, 1995 (collectively, all of the "foregoing documents filed with or furnished to the SEC and all exhibits included therein are referred to as the “Company SEC Reports"”) since January 1, 2013. As of their respective effective dates (in the case of the Company SEC Reports that are registration statements filed pursuant to the requirements of the Securities Act) and as of their respective filing dates (in the case of all other Company SEC Reports), except that or in each case, if amended prior to the Company will file a Notification of Late Filing on Form 126-25 notifying the SEC that its Form 10-K for its 1999 fiscal year could not be filed within the prescribed time period. Each date hereof, as of the date of the last such amendment, (i) each Company SEC Reports has Report complied in all material respects with all the applicable requirements of the Securities Act and or the Exchange Act, each as in effect on the dates so filed. None and (ii) none of such forms, reports or documents, including, without limitation, any financial statements or schedules included or incorporated by reference therein, contained, when filed, Company SEC Reports contained any untrue statement of a material fact or omitted to state a material fact required to be stated or incorporated by reference therein or necessary in order to make the such statements made therein, in the light of the circumstances under which they were made, not misleading. The Company has heretofore made available or promptly will make available to the Purchaser, a complete and correct copy of any amendment to the SEC Reports. None of the Subsidiaries of the Company is required to file any reports, statements, forms or other documents with the SEC.
(b) The SEC Reports contain audited consolidated balance sheets Company has established and maintains disclosure controls and procedures (as defined in Rule 13a-15 under the Exchange Act). Such disclosure controls and procedures are designed to ensure that material information relating to the Company, including its Subsidiaries, is made known to Company’s principal executive officer and principal financial officer by others within those entities, particularly during the periods in which the periodic reports required under the Exchange Act are being prepared. Such disclosure controls and procedures are effective in timely alerting the Company principal executive officer and principal financial officer to material information required to be included in the Company’s periodic and current reports required under the Exchange Act. For purposes of this Agreement, “principal executive officer” and “principal financial officer” shall have the meanings given to such terms in the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002. The Company is in compliance in all material respects with the provisions of the Company and its Subsidiaries as ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of December 31 in each of the years 1995 through 1998, and the related audited consolidated statements of income, statements of cash flow and changes in Shareholders' equity of the Company and its Subsidiaries for the fiscal years then ended, together with the respective reports thereon of KPMG LLP. These audited financial statements of the Company were included or incorporated by reference in the SEC Reports (collectively, including the footnotes thereto, the "SEC Financial Statements"), were prepared in accordance with GAAP (except as otherwise stated in the SEC Financial Statements or in the related reports of the Company's independent accountants) and present fairly the consolidated financial position of the Company and its subsidiaries as at the dates thereof, and the results of operations, changes in financial position and statements of Shareholders' equity of the Company and its Subsidiaries for the periods indicated. No event has occurred since the Balance Sheet Date 2002 that would require a restatement of the SEC Financial Statements under GAAP other than by reason of a change in GAAP. The SEC Financial Statements reflect, and on the Closing Date will reflect, the interest of the Company in the assets, liabilities and operations of all Subsidiaries of are applicable to the Company.
(c) Neither the Company nor any of its Subsidiaries has any material liabilitySince January 1, obligation or commitment of any nature whatsoever (whether known or unknown due or to become due, accrued, fixed, contingent, liquidated, unliquidated or otherwise) other than liabilities, obligations or commitments (i) which are accrued or reserved against in the consolidated balance sheet of the Company and its consolidated subsidiaries as of December 31, 1999 included in the Audited Financial Statements or reflected in the notes thereto, (ii)(x) which arose in the ordinary course of business since such date and (y) which do not or would not individually or in the aggregate have a Material Adverse Effect, or (iii) which are of the type that would not be required to be reflected on a consolidated balance sheet of the Company and its Subsidiaries or in the notes thereto if such balance sheet were prepared in accordance with GAAP as of the date thereof or as of the Closing Date, as the case may be.
(d) Except as set forth on Schedule 5.25(d), since the date of the Company's 1999 Proxy Statement to the date hereof2013, the Company has not entered into or otherwise become obligated been and is in compliance in all material respects with respect to any transactions which would require disclosure pursuant to Item 404 the applicable listing and corporate governance rules and regulations of Regulation S-K in accordance with Items 7(b) or (c) of Schedule 14A under the Exchange Act were a Company proxy statement to be distributed as of the date hereofNASDAQ.
Appears in 1 contract
Sources: Share Purchase Agreement
SEC Reports. (a) The Since January 1, 2013, the Company has filed or furnished (as applicable) all required forms, reports reports, schedules, statements and documents with the SEC since December 31that have been required to be so filed or furnished (as applicable) by it under Applicable Law at or prior to the time so required, 1995 (collectivelyand, after the "SEC Reports")date of this Agreement and until the Effective Time, except that the Company will file a Notification of Late Filing on Form 126-25 notifying all forms, reports, schedules, statements and documents with the SEC that its Form 10-K for its 1999 fiscal year could not are required to be filed within by it under Applicable Law at or prior to the prescribed time period. Each of so required (all such forms, reports, schedules, statements and documents, together with any other forms, reports, schedules, statements or other documents filed or furnished (as applicable) by the Company with the SEC Reports has complied after January 1, 2013 and at or prior to the Effective Time that are not required to be so filed or furnished, the “SEC Reports”).
(b) Each SEC Report complied, or will comply, as the case may be, as of its filing date, as to form in all material respects with all the applicable requirements of the Securities Act and or the Exchange Act, as the case may be, and with all applicable provisions of the S▇▇▇▇▇▇▇-▇▇▇▇▇ Act, each as in effect on the dates so date such SEC Report was, or will be, filed. None .
(c) As of its filing date (or, if amended or superseded by a filing prior to the date of this Agreement, on the date of such formsamended or superseded filing), reports each SEC Report did not, or documentswill not, includingas the case may be, without limitation, any financial statements or schedules included or incorporated by reference therein, contained, when filed, contain any untrue statement of a material fact or omitted omit to state a any material fact required to be stated or incorporated by reference therein or necessary in order to make the statements made therein, in the light of the circumstances under which they were made, not misleading. The Company has heretofore made available or promptly will make available to the Purchaser, a complete and correct copy of any amendment to the SEC Reports. None of the Subsidiaries of the Company is required to file any reports, statements, forms or other documents with the SEC.
(bd) The SEC Reports contain audited consolidated balance sheets of the Company and its Subsidiaries as of December 31 in each of the years 1995 through 1998Since January 1, and the related audited consolidated statements of income2013, statements of cash flow and changes in Shareholders' equity of the Company and its Subsidiaries for the fiscal years then ended, together with the respective reports thereon of KPMG LLP. These audited financial statements of the Company were included or incorporated by reference in the SEC Reports (collectively, including the footnotes thereto, the "SEC Financial Statements"), were prepared in accordance with GAAP (except as otherwise stated in the SEC Financial Statements or in the related reports of the Company's independent accountants) and present fairly the consolidated financial position of the Company and its subsidiaries as at the dates thereof, and the results of operations, changes in financial position and statements of Shareholders' equity of the Company and its Subsidiaries for the periods indicated. No event has occurred since the Balance Sheet Date that would require a restatement of the SEC Financial Statements under GAAP other than by reason of a change in GAAP. The SEC Financial Statements reflect, and on the Closing Date will reflect, the interest of the Company in the assets, liabilities and operations of all Subsidiaries of the Company.
(c) Neither neither the Company nor any of its Subsidiaries has received from the SEC or any material liability, obligation or commitment of any nature whatsoever (whether known or unknown due or to become due, accrued, fixed, contingent, liquidated, unliquidated or otherwise) other than liabilities, obligations or commitments Governmental Entity (i) which are accrued or reserved against in the consolidated balance sheet any written comments that have not been resolved with respect to any of the Company and its consolidated subsidiaries as SEC Reports (including the financial statements included therein) or any registration statement filed by any of December 31, 1999 included in them with the Audited Financial Statements or reflected in the notes thereto, (ii)(x) which arose in the ordinary course of business since such date and (y) which do not or would not individually or in the aggregate have a Material Adverse Effect, SEC or (iiiii) which any written notice that such SEC Reports (including the financial statements included therein) or registration statements are being reviewed or investigated, and, to the Knowledge of the type that would not be required to be reflected on a consolidated balance sheet of the Company and its Subsidiaries or in the notes thereto if such balance sheet were prepared in accordance with GAAP Company, there is not, as of the date thereof of this Agreement, any investigation or as review being conducted by the SEC or any other Governmental Entity of any SEC Reports (including the Closing Date, as the case may befinancial statements included therein).
(de) Except as set forth on Schedule 5.25(d), since the date No Subsidiary of the Company's 1999 Proxy Statement Company is subject to the date hereof, reporting requirements of Section 13(a) or Section 15(d) of the Exchange Act.
(f) No executive officer of the Company has not entered into failed to make the certifications required of him or otherwise become obligated her under Section 302 or 906 of the S▇▇▇▇▇▇▇-▇▇▇▇▇ Act with respect to any transactions which would require disclosure pursuant to Item 404 SEC Report, except as disclosed in certifications filed with the SEC Reports. Since January 1, 2013, neither the Company nor any of Regulation S-K in accordance with Items 7(b) its executive officers has received any written notice from any Governmental Entity challenging or (c) questioning the accuracy, completeness, form or manner of Schedule 14A under the Exchange Act were a Company proxy statement to be distributed as filing of the date hereofsuch certifications.
Appears in 1 contract
Sources: Merger Agreement (Micrel Inc)
SEC Reports. (a) The Company has filed all required forms, reports and documents with the SEC since December 31, 1995 (collectively, the "SEC Reports"), except that the Company will file a Notification of Late Filing Service’s Annual Reports on Form 126-25 notifying the SEC that its Form 10-K for its 1999 the fiscal year could not years ended June 30, 2008, as amended, June 30, 2007 and June 30, 2006 and all other reports (including reports on Form 10-Q and Form 8-K), registration statements, definitive proxy statements or information statements filed or to be filed within by it subsequent to June 30, 2006 with the prescribed time period. Each SEC (collectively, “Service SEC Documents”), as of the SEC Reports has date filed or to be filed and as amended prior to the date of this Agreement, (i) complied or shall comply in all material respects as to form with all the applicable requirements of under the Securities Act and or the Exchange Act, each as in effect on the dates so filed. None of such formscase may be, reports or documents, including, without limitation, any financial statements or schedules included or incorporated by reference therein, contained, when filed, and (ii) did not and shall 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 therein, in light of the circumstances under which they were made, not misleading. The Company has heretofore made available or promptly will make available , except that information as of a later date shall be deemed to the Purchasermodify information as of an earlier date, a complete and correct copy of any amendment to the SEC Reports. None (iii) each of the Subsidiaries of the Company is required to file any reports, statements, forms or other documents with the SEC.
(b) The SEC Reports contain audited consolidated balance sheets contained in or incorporated by reference into any such Service SEC Document (including the related notes and schedules thereto) fairly presents, or shall fairly present, the consolidated financial position of the Company Service MHC, Service and its Subsidiaries as of December 31 in its date, and (iv) each of the years 1995 through 1998, and the related audited consolidated statements of income, statements of cash flow income and changes in Shareholders' shareholders’ equity of the Company and its Subsidiaries for the fiscal years then endedcash flows or equivalent statements in such Service SEC Documents (including any related notes and schedules thereto) fairly presents, together with the respective reports thereon of KPMG LLP. These audited financial statements of the Company were included or incorporated by reference in the SEC Reports (collectively, including the footnotes theretoshall fairly present, the "SEC Financial Statements"), were prepared in accordance with GAAP (except as otherwise stated in the SEC Financial Statements or in the related reports of the Company's independent accountants) and present fairly the consolidated financial position of the Company and its subsidiaries as at the dates thereof, and the results of operations, changes in financial position shareholders’ equity and statements changes in cash flows, as the case may be, of Shareholders' equity of the Company Service MHC, Service and its Subsidiaries for the periods indicatedto which they relate, in each case in accordance with GAAP consistently applied during the periods involved (subject, in the case of unaudited interim statements, to normal fiscal year-end adjustments). No event has occurred since the Balance Sheet Date that would require a restatement Each of the SEC Financial Statements under GAAP other than by reason consolidated financial statements of a change in GAAP. The SEC Financial Statements reflectService MHC, and on the Closing Date will reflect, the interest of the Company in the assets, liabilities and operations of all Subsidiaries of the Company.
(c) Neither the Company nor any of its Subsidiaries has any material liability, obligation or commitment of any nature whatsoever (whether known or unknown due or to become due, accrued, fixed, contingent, liquidated, unliquidated or otherwise) other than liabilities, obligations or commitments (i) which are accrued or reserved against in the consolidated balance sheet of the Company Service and its consolidated subsidiaries as of December 31Subsidiaries, 1999 included including, in the Audited Financial Statements or reflected in each case, the notes thereto, (ii)(x) which arose contained in the ordinary course Service SEC Documents comply, and the financial statements to be filed with the SEC by Service after the date of business since such date this Agreement shall comply, with applicable accounting requirements and (y) which do not or would not individually or in with the aggregate have a Material Adverse Effect, or (iii) which are published rules and regulations of the type that would not be required to be reflected on a consolidated balance sheet SEC with respect thereto. The books and records of the Company Service MHC, Service and its Subsidiaries or in the notes thereto if such balance sheet were prepared have been, and are being, maintained in accordance with GAAP as and applicable legal and regulatory requirements and reflect only actual transactions. Each of the date thereof balance sheets contained in or as incorporated by reference into any Service SEC Document, and each of the Closing Datestatements of income and changes in shareholders’ equity and cash flows or equivalent statements in such Service SEC Document has been prepared from, as the case may be.
(d) Except as set forth on Schedule 5.25(d), since the date of the Company's 1999 Proxy Statement to the date hereofand is in accordance with, the Company has not entered into books and records of Service and its Subsidiaries. None of Service’s Subsidiaries is required to file any form, report or otherwise become obligated other document with respect to any transactions which would require disclosure pursuant to Item 404 of Regulation S-K in accordance with Items 7(b) or (c) of Schedule 14A under the Exchange Act were a Company proxy statement to be distributed as of the date hereofSEC.
Appears in 1 contract
SEC Reports. (a) The Company has filed shall file all required forms, reports and other information and documents which it is required to file with the SEC since December 31, 1995 (collectively, the "SEC Reports"), except that the Company will file a Notification pursuant to Section 13 or 15(d) of Late Filing on Form 126-25 notifying the SEC that its Form 10-K for its 1999 fiscal year could not be filed within the prescribed time period. Each of the SEC Reports has complied in all material respects with all applicable requirements of the Securities Act and the Exchange Act, each as in effect on the dates so filed. None of such forms, reports or documents, including, without limitation, any financial statements or schedules included or incorporated by reference therein, contained, when filed, any untrue statement of a material fact or omitted to state a material fact required to be stated or incorporated by reference 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 heretofore made available or promptly will make available to the Purchaser, a complete and correct copy of any amendment to the SEC Reports. None of the Subsidiaries of the Company within 15 days after it is required to file any them with the SEC, whether or not the Company makes the filing with the SEC, the Company shall file copies of all such reports, statements, forms or information and other documents with the SECTrustee; provided that any such reports, information and documents filed with the SEC pursuant to its Electronic Data Gathering, Analysis and Retrieval system shall be deemed to be filed with the Trustee.
(b) The SEC Reports contain audited consolidated balance sheets Delivery of such reports, information and documents to the Company and its Subsidiaries as of December 31 in each of the years 1995 through 1998, Trustee is for informational purposes only and the related audited consolidated statements Trustee’s receipt of income, statements such shall not constitute constructive notice of cash flow and changes in Shareholders' equity of the Company and its Subsidiaries for the fiscal years then ended, together with the respective reports thereon of KPMG LLP. These audited financial statements of the Company were included any information contained therein or incorporated by reference in the SEC Reports (collectivelydeterminable from information contained therein, including the footnotes thereto, Company’s compliance with any of its covenants hereunder (as to which the "SEC Financial Statements"Trustee is entitled to rely exclusively on Officers’ Certificates), were prepared in accordance with GAAP (except as otherwise stated in the SEC Financial Statements or in the related reports of the Company's independent accountants) and present fairly the consolidated financial position of the Company and its subsidiaries as at the dates thereof, and the results of operations, changes in financial position and statements of Shareholders' equity of the Company and its Subsidiaries for the periods indicated. No event has occurred since the Balance Sheet Date that would require a restatement of the SEC Financial Statements under GAAP other than by reason of a change in GAAP. The SEC Financial Statements reflect, and on the Closing Date will reflect, the interest of the Company in the assets, liabilities and operations of all Subsidiaries of the Company.
(c) Neither The Company also shall comply with Trust Indenture Act Section 314(a), whether or not the Company nor any of its Subsidiaries has any material liability, obligation or commitment of any nature whatsoever (whether known or unknown due or to become due, accrued, fixed, contingent, liquidated, unliquidated or otherwise) other than liabilities, obligations or commitments (i) which Securities are accrued or reserved against in governed by the consolidated balance sheet of the Company and its consolidated subsidiaries as of December 31, 1999 included in the Audited Financial Statements or reflected in the notes thereto, (ii)(x) which arose in the ordinary course of business since such date and (y) which do not or would not individually or in the aggregate have a Material Adverse Effect, or (iii) which are of the type that would not be required to be reflected on a consolidated balance sheet of the Company and its Subsidiaries or in the notes thereto if such balance sheet were prepared in accordance with GAAP as of the date thereof or as of the Closing Date, as the case may beTrust Indenture Act.
(d) Except as set forth on Schedule 5.25(d), since At any time when the date Company is not subject to Section 13 of 15(d) of the Company's 1999 Proxy Statement to the date hereofExchange Act, the Company has not entered into or shall furnish to the Trustee (i) quarterly financial statements within 45 days after the end of each fiscal quarter that are substantially equivalent to those the Company would otherwise become obligated be required to file with respect the Commission in a Quarterly Report on Form 10-Q, (ii) annual financial statements within 90 days after the end of each fiscal year that are substantially equivalent to any transactions which those the Company would require disclosure pursuant be required to Item 404 file with the Commission in an Annual Report on Form 10-K, including a report thereon by the Company’s certified independent accountants, and (iii) accompanying each of the financial statements required by (i) and (ii) above, information substantially equivalent to that required by Regulation S-K Item 303, “Management Discussion and Analysis of Financial Condition and Results of Operations;” provided, that in accordance each case the delivery of materials to the Trustee by electronic means shall be deemed “furnished” to the Trustee for purposes of this Section 6.2(d); provided, further, that the Company shall be deemed to have satisfied its obligations under each of (i), (ii) and (iii) above if it files such information with Items 7(bthe Commission (if the Commission will accept such filing) or (c) of Schedule 14A under the Exchange Act were a Company proxy statement to be distributed as of the date hereofotherwise makes such financial statements and other information available on or through its web site.
Appears in 1 contract
Sources: Purchase Agreement (Lexar Media Inc)
SEC Reports. (a) The Company has filed all required forms, reports and documents with the SEC since December 31, 1995 (collectively, the "SEC Reports"), except Notwithstanding that the Company will file a Notification of Late Filing on Form 126-25 notifying the SEC that its Form 10-K for its 1999 fiscal year could not be filed within the prescribed time period. Each of the SEC Reports has complied in all material respects with all applicable requirements of the Securities Act and the Exchange Act, each as in effect on the dates so filed. None of such forms, reports or documents, including, without limitation, any financial statements or schedules included or incorporated by reference therein, contained, when filed, any untrue statement of a material fact or omitted to state a material fact required to be stated or incorporated by reference 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 heretofore made available or promptly will make available to the Purchaser, a complete and correct copy of any amendment to the SEC Reports. None of the Subsidiaries of the Company is required to file any reports, statements, forms or other documents with the SEC.
(b) The SEC Reports contain audited consolidated balance sheets of the Company and its Subsidiaries as of December 31 in each of the years 1995 through 1998, and the related audited consolidated statements of income, statements of cash flow and changes in Shareholders' equity of the Company and its Subsidiaries for the fiscal years then ended, together with the respective reports thereon of KPMG LLP. These audited financial statements of the Company were included or incorporated by reference in the SEC Reports (collectively, including the footnotes thereto, the "SEC Financial Statements"), were prepared in accordance with GAAP (except as otherwise stated in the SEC Financial Statements or in the related reports of the Company's independent accountants) and present fairly the consolidated financial position of the Company and its subsidiaries as at the dates thereof, and the results of operations, changes in financial position and statements of Shareholders' equity of the Company and its Subsidiaries for the periods indicated. No event has occurred since the Balance Sheet Date that would require a restatement of the SEC Financial Statements under GAAP other than by reason of a change in GAAP. The SEC Financial Statements reflect, and on the Closing Date will reflect, the interest of the Company in the assets, liabilities and operations of all Subsidiaries of the Company.
(c) Neither the Company nor any of its Subsidiaries has any material liability, obligation or commitment of any nature whatsoever (whether known or unknown due or to become due, accrued, fixed, contingent, liquidated, unliquidated or otherwise) other than liabilities, obligations or commitments (i) which are accrued or reserved against in the consolidated balance sheet of the Company and its consolidated subsidiaries as of December 31, 1999 included in the Audited Financial Statements or reflected in the notes thereto, (ii)(x) which arose in the ordinary course of business since such date and (y) which do not or would not individually or in the aggregate have a Material Adverse Effect, or (iii) which are of the type that would Issuers may not be required to be reflected or remain subject to the reporting requirements of Section 13(a) or 15(d) of the Exchange Act, the Company or RSC will file with the SEC (unless such filing is not permitted under the Exchange Act or by the SEC), so long as the Notes are Outstanding, the annual reports, information, documents and other reports that the Issuers are required to file with the SEC pursuant to such Section 13(a) or 15(d) or would be so required to file if they were so subject. The Company or RSC will also, within 15 days after the date on which the Company or RSC, as applicable, as was so required to file or would be so required to file if the Company or RSC, as applicable were so subject, transmit by mail to all Holders, as their names and addresses appear in the Note Register, and to the Trustee (or make available on a consolidated balance sheet Company or RSC website) copies of any such information, documents and reports (without exhibits) so required to be filed. Notwithstanding the foregoing, if any audited or reviewed financial statements or information required to be included in any such filing are not reasonably available on a timely basis as a result of the Company's or RSC's, as applicable, accountants not being "independent" (as defined pursuant to the Exchange Act and the rules and regulations of the SEC thereunder), the Company or RSC, as applicable, may, in lieu of making such filing or transmitting or making available the information, documents and its Subsidiaries reports so required to be filed, elect to make a filing on an alternative form or transmit or make available unaudited or unreviewed financial statements or information substantially similar to such required audited or reviewed financial statements or information; provided that (a) the Company or RSC, as applicable, shall in any event be required to make such filing and so transmit or make available such audited or reviewed financial statements or information no later than the notes thereto if such balance sheet were prepared in accordance with GAAP as first anniversary of the date thereof on which the same was otherwise required pursuant to the preceding provisions of this paragraph (such initial date, the "Reporting Date") and (b) if the Company or RSC, as of the Closing Dateapplicable, makes such an election and such filing has not been made, or such information, documents and reports have not been transmitted or made available, as the case may be.
(d) Except as set forth , within 90 days after such Reporting Date, liquidated damages will accrue on Schedule 5.25(d), since the Notes at a rate of 0.50% per annum from the date that is 90 days after such Reporting Date to the earlier of (x) the date on which such filing has been made, or such information, documents and reports have been transmitted or made available, as the case may be, and (y) the first anniversary of such Reporting Date (provided that not more than 0.50% per annum in liquidated damages shall be payable for any period regardless of the Company's 1999 Proxy Statement to the date hereof, number of such elections by the Company has or RSC, as applicable). The Company or RSC, as applicable will be deemed to have satisfied the requirements of this Section 405 if any Parent files and provides reports, documents and information of the types otherwise so required, in each case within the applicable time periods, and the Company or RSC, as applicable, is not entered into or otherwise become obligated with respect required to file such reports, documents and information separately under the applicable rules and regulations of the SEC (after giving effect to any transactions which would require disclosure pursuant to Item 404 of Regulation S-K in accordance with Items 7(bexemptive relief) or (c) of Schedule 14A under the Exchange Act were a Company proxy statement to be distributed as because of the date hereoffilings by such Parent. The Company or RSC, as applicable, also will comply with the other provisions of TIA Section 314(a).
Appears in 1 contract
Sources: Indenture (RSC Holdings Inc.)
SEC Reports. (a) The Company has filed all required reports, schedules, forms, reports statements and other documents required to be filed by it under the Securities Act and the Exchange Act, including pursuant to Section 13(a) or 15(d) thereof, for the one year preceding the date hereof (or such shorter period as the Company was required by law or regulation to file such material) (the foregoing materials, including the exhibits thereto and documents with incorporated by reference therein, being collectively referred to herein as the SEC since December 31, 1995 (collectively, the "“SEC Reports"”). As of their respective dates, except that the Company will file a Notification of Late Filing on Form 126-25 notifying the SEC that its Form 10-K for its 1999 fiscal year could not be filed within the prescribed time period. Each of the SEC Reports has (including the financial statements, exhibits and schedules thereto) complied in all material respects with all applicable the requirements of the Securities Act and the Exchange ActAct and the rules and regulations of the Commission promulgated thereunder, each as in effect applicable and did not at the time they were filed (or if amended or superseded by a filing prior to the date of this Agreement, then on the dates so filed. None date of such forms, reports or documents, including, without limitation, any financial statements or schedules included or incorporated by reference therein, contained, when filed, filing) 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 made the statements therein, in light of the circumstances under which they were made, not misleading. The Company has heretofore made available or promptly will make available to the Purchaser, a complete and correct copy of any amendment to the SEC Reports. None Each of the Subsidiaries of the Company is required to file any reportsfinancial statements (including, statements, forms or other documents with the SEC.
(b) The SEC Reports contain audited consolidated balance sheets of the Company and its Subsidiaries as of December 31 in each of the years 1995 through 1998case, and the any related audited consolidated statements of income, statements of cash flow and changes in Shareholders' equity of the Company and its Subsidiaries for the fiscal years then ended, together with the respective reports thereon of KPMG LLP. These audited financial statements of the Company were included or incorporated by reference notes thereto) contained in the SEC Reports (collectivelythe “Company Financials”), including any SEC Reports filed after the footnotes date hereof until the Closing, as of their respective dates, (i) complied as to form in all material respects with the published rules and regulations of the SEC with respect thereto, the "SEC Financial Statements"), were (ii) was prepared in accordance with GAAP applied on a consistent basis throughout the periods involved (except as otherwise stated may be indicated in the SEC Financial Statements or notes thereto or, in the related reports case of unaudited interim financial statements, as may be permitted by the Company's independent accountantsSEC on Form 10-Q under the Exchange Act) and present (iii) fairly presented the consolidated financial position of the Company and its subsidiaries as at the respective dates thereof, thereof and the consolidated results of operations, changes in financial position its operations and statements of Shareholders' equity of the Company and its Subsidiaries cash flows for the periods indicated. No event has occurred since , except that the Balance Sheet Date that would require a restatement of the SEC Financial Statements under GAAP other than by reason of a change unaudited interim financial statements were or are subject to normal and recurring year-end adjustments which were not, or are not expected to be, material in GAAPamount. The SEC Financial Statements reflect, and on the Closing Date will reflect, the interest of the Company in the assets, liabilities and operations of all Subsidiaries of the Company.
(c) Neither the Company nor any of its Subsidiaries has any material liability, obligation or commitment of any nature whatsoever (whether known or unknown due or to become due, accrued, fixed, contingent, liquidated, unliquidated or otherwise) other than liabilities, obligations or commitments (i) which are accrued or reserved against in the consolidated balance sheet of the Company and its consolidated subsidiaries as of December 31, 1999 included 2005 is hereinafter referred to as the “Company Balance Sheet.” Except as disclosed in the Audited Financial Statements Company Financials, the Company does not have any liabilities (absolute, accrued, contingent or reflected otherwise) of a nature required to be disclosed on a balance sheet or in the related notes theretoto the consolidated financial statements prepared in accordance with GAAP which are, individually or in the aggregate, material to the business, results of operations or financial condition of the Company, except liabilities (ii)(xi) which arose provided for in the Company Balance Sheet, or (ii) incurred since the date of the Company Balance Sheet in the ordinary course of business since such date consistent with past practices and (y) which do not or would not individually or in the aggregate reasonably be expected to have a Material Adverse Effect, or (iii) which are of the type that would not be required to be reflected on a consolidated balance sheet of the Company and its Subsidiaries or in the notes thereto if such balance sheet were prepared in accordance with GAAP as of the date thereof or as of the Closing Date, as the case may be.
(d) Except as set forth on Schedule 5.25(d), since the date of the Company's 1999 Proxy Statement to the date hereof, the Company has not entered into or otherwise become obligated with respect to any transactions which would require disclosure pursuant to Item 404 of Regulation S-K in accordance with Items 7(b) or (c) of Schedule 14A under the Exchange Act were a Company proxy statement to be distributed as of the date hereof.
Appears in 1 contract
Sources: Securities Purchase Agreement (Phase Iii Medical Inc/De)
SEC Reports. (aNotwithstanding that the Company may not be required to be or remain subject to the reporting requirements of Section 13(a) The Company has filed all required formsor 15(d) of the Exchange Act, reports and documents with the SEC since December 31, 1995 (collectively, the "SEC Reports"), except that the Company will file a Notification of Late Filing on Form 126-25 notifying with the SEC that its Form 10-K for its 1999 fiscal year could (unless such filing is not be filed within the prescribed time period. Each of the SEC Reports has complied in all material respects with all applicable requirements of the Securities Act and permitted under the Exchange ActAct or by the SEC), each so long as in effect on the dates so filed. None of such formsNotes are Outstanding, the annual reports, information, documents and other reports or documents, including, without limitation, any financial statements or schedules included or incorporated by reference therein, contained, when filed, any untrue statement of a material fact or omitted to state a material fact required to be stated or incorporated by reference 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 heretofore made available or promptly will make available to the Purchaser, a complete and correct copy of any amendment to the SEC Reports. None of the Subsidiaries of that the Company is required to file any reports, statements, forms or other documents with the SEC.
SEC pursuant to such Section 13(a) or 15(d) or would be so required to file if the Company were so subject. If, at any time, any audited or reviewed financial statements or information required to be included in any such filing are not reasonably available on a timely basis as a result of the Company’s accountants not being “independent” (as defined pursuant to the Exchange Act and the rules and regulations of the SEC thereunder), the Company may, in lieu of making such filing or transmitting or making available the information, documents and reports so required to be filed, elect to make a filing on an alternative form or transmit or make available unaudited or unreviewed financial statements or information substantially similar to such required audited or reviewed financial statements or information, provided that (a) the Company shall in any event be required to make such filing and so transmit or make available such audited or reviewed financial statements or information no later than the first anniversary of the date on which the same was otherwise required pursuant to the preceding provisions of this paragraph (such initial date, the “Reporting Date”) and (b) The SEC Reports contain audited consolidated balance sheets of if the Company makes such an election and its Subsidiaries as of December 31 in each of the years 1995 through 1998, and the related audited consolidated statements of income, statements of cash flow and changes in Shareholders' equity of the Company and its Subsidiaries for the fiscal years then ended, together with the respective reports thereon of KPMG LLP. These audited financial statements of the Company were included or incorporated by reference in the SEC Reports (collectively, including the footnotes thereto, the "SEC Financial Statements"), were prepared in accordance with GAAP (except as otherwise stated in the SEC Financial Statements or in the related reports of the Company's independent accountants) and present fairly the consolidated financial position of the Company and its subsidiaries as at the dates thereof, and the results of operations, changes in financial position and statements of Shareholders' equity of the Company and its Subsidiaries for the periods indicated. No event such filing has occurred since the Balance Sheet Date that would require a restatement of the SEC Financial Statements under GAAP other than by reason of a change in GAAP. The SEC Financial Statements reflect, and on the Closing Date will reflect, the interest of the Company in the assets, liabilities and operations of all Subsidiaries of the Company.
(c) Neither the Company nor any of its Subsidiaries has any material liability, obligation or commitment of any nature whatsoever (whether known or unknown due or to become due, accrued, fixed, contingent, liquidated, unliquidated or otherwise) other than liabilities, obligations or commitments (i) which are accrued or reserved against in the consolidated balance sheet of the Company and its consolidated subsidiaries as of December 31, 1999 included in the Audited Financial Statements or reflected in the notes thereto, (ii)(x) which arose in the ordinary course of business since such date and (y) which do not or would not individually or in the aggregate have a Material Adverse Effectbeen made, or (iii) which are of the type that would such information, documents and reports have not be required to be reflected on a consolidated balance sheet of the Company and its Subsidiaries been transmitted or in the notes thereto if such balance sheet were prepared in accordance with GAAP as of the date thereof or as of the Closing Datemade available, as the case may be.
(d) Except as set forth , within 90 days after such Reporting Date, liquidated damages will accrue on Schedule 5.25(d), since the Notes at a rate of 0.50% per annum from the date that is 90 days after such Reporting Date to the earlier of (x) the date on which such filing has been made, or such information, documents and reports have been transmitted or made available, as the case may be, and (y) the first anniversary of such Reporting Date (provided that not more than 0.50% per annum in liquidated damages shall be payable for any period regardless of the number of such elections by the Company's 1999 Proxy Statement ). The Trustee shall have no independent responsibility to determine if liquidated damages are due or the amount of any such liquidated damages. The Company will be deemed to have furnished the reports referred to above to the date hereofTrustee and the Holders if any direct or indirect Parent is subject to the reporting requirements of Section 13(a) or 15(d) of the Exchange Act and has filed reports required under Section 13(a) or 15(d) of the Exchange Act with the SEC via the ▇▇▇▇▇ (or successor) filing system and such reports are publicly available. Notwithstanding the foregoing, the Company has shall not entered into be required to file or otherwise become obligated cause to be filed with respect the SEC or transmit or make available (or to make any transactions which filing with the SEC that would require disclosure pursuant be required to Item 404 include) separate financial statements of Regulation S-K any Subsidiary solely as a result of the inclusion of any class of securities of any such Subsidiary in accordance with Items 7(b) the Collateral. Subject to Article VII, delivery of reports, information and documents to the Trustee under this Section 405 is for informational purposes only and the Trustee’s receipt (or (cconstructive receipt) of Schedule 14A under the Exchange Act were a foregoing shall not constitute constructive notice of any information contained therein or determinable from information contained therein, including the Company’s compliance with any of its covenants hereunder (as to which the Trustee is entitled to rely exclusively on an Officer’s Certificate). Subject to Article VII, the Trustee is not obligated to confirm that the Company proxy statement has complied with its obligations contained in this Section 405 to be distributed as of file such reports with the date hereofSEC or post such reports and information on its website.
Appears in 1 contract
Sources: Indenture (Hd Supply, Inc.)
SEC Reports. (a) The Company has delivered or made available to Purchasers each registration statement, report, proxy statement or information statement (as defined in Regulation 14C under the Exchange Act) prepared by it since January 1, 1995, which reports constitute all of the documents required to be filed all required forms, reports and documents by the Company with the SEC since December 31January 1, 1995 1995, each in the form (including exhibits and any amendments thereto) filed with the SEC (collectively, the "SEC Company Reports"). As of their respective dates, except that the Company will file a Notification of Late Filing on Form 126-25 notifying Reports and any Company Reports filed after the SEC that its Form 10-K for its 1999 fiscal year could not be filed within date hereof and prior to the prescribed time period. Each of the SEC Reports has Closing Date (a) complied as to form in all material respects with all the applicable requirements of the Securities Act and or the Exchange Act, each as in effect on the dates so filed. None of such formscase may be, reports or documents, including, without limitation, any financial statements or schedules included or incorporated by reference therein, contained, when filed, and the rules and regulations thereunder; and (b) 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. The Company has heretofore made available or promptly will make available to the Purchaser, a complete and correct copy of any amendment to timely filed with the SEC Reports. None all reports required to be filed under Sections 13, 14 and 15(d) of the Subsidiaries Exchange Act. Each of the Company is required to file any reports, statements, forms or other documents with the SEC.
(b) The SEC Reports contain audited consolidated balance sheets of the Company and its Subsidiaries as of December 31 included in each of the years 1995 through 1998, and the related audited consolidated statements of income, statements of cash flow and changes in Shareholders' equity of the Company and its Subsidiaries for the fiscal years then ended, together with the respective reports thereon of KPMG LLP. These audited financial statements of the Company were included or incorporated by reference in into the SEC Company Reports (collectively, including the footnotes thereto, the "SEC Financial Statements"), were prepared related notes and schedules) fairly present in accordance with GAAP (except as otherwise stated in the SEC Financial Statements or in the related reports of the Company's independent accountants) and present fairly all material respects the consolidated financial position of the Company and as of its subsidiaries as at date (subject, in the dates thereofcase of unaudited statements, to normal year-end audit adjustments which would not be material in amount or effect), and each of the statements of income, retained earnings and cash flows of the Company included in or incorporated by reference into the Company Reports (including any related notes and schedules) fairly present in all material respects the results of operations, changes in financial position and statements of Shareholders' equity of the Company and its Subsidiaries for the periods indicated. No event has occurred since the Balance Sheet Date that would require a restatement of the SEC Financial Statements under GAAP other than by reason of a change in GAAP. The SEC Financial Statements reflect, and on the Closing Date will reflect, the interest of the Company in the assets, liabilities and operations of all Subsidiaries of the Company.
(c) Neither the Company nor any of its Subsidiaries has any material liability, obligation retained earnings or commitment of any nature whatsoever (whether known or unknown due or to become due, accrued, fixed, contingent, liquidated, unliquidated or otherwise) other than liabilities, obligations or commitments (i) which are accrued or reserved against in the consolidated balance sheet of the Company and its consolidated subsidiaries as of December 31, 1999 included in the Audited Financial Statements or reflected in the notes thereto, (ii)(x) which arose in the ordinary course of business since such date and (y) which do not or would not individually or in the aggregate have a Material Adverse Effect, or (iii) which are of the type that would not be required to be reflected on a consolidated balance sheet of the Company and its Subsidiaries or in the notes thereto if such balance sheet were prepared in accordance with GAAP as of the date thereof or as of the Closing Datecash flows, as the case may be.
(d) Except as , of the Company for the periods set forth on Schedule 5.25(dtherein (subject, in the case of unaudited statements, to normal year-end audit adjustments which would not be material in amount or effect). The financial statements of the Company, since including the notes thereto, included in or incorporated by reference into the Company Reports comply as to form in all material respects with applicable accounting requirements and with the published rules and regulations of the SEC with respect thereto, and have been prepared in accordance with generally accepted accounting principles consistently applied (except as may be indicated in the notes thereto). Since the date of the first Company Report, there has been no material change in the Company's 1999 Proxy Statement accounting methods or principles except as described in the notes to the date hereof, the such Company has not entered into or otherwise become obligated with respect to any transactions which would require disclosure pursuant to Item 404 of Regulation S-K in accordance with Items 7(b) or (c) of Schedule 14A under the Exchange Act were a Company proxy statement to be distributed as of the date hereoffinancial statements.
Appears in 1 contract
Sources: Stock Purchase Agreement (Western Pacific Airlines Inc /De/)
SEC Reports. (a) The Company has filed all required forms, reports and documents with the SEC since December 31, 1995 (collectively, the "SEC Reports"), except that the Company will file a Notification of Late Filing on Form 126-25 notifying the SEC that its Form 10-K for its 1999 fiscal year could not be filed within the prescribed time period. Each of the SEC Reports has complied in all material respects with requirements to file all applicable requirements of reports, schedules, forms, statements and other documents required to be filed by it under the Securities Act and the Exchange Act, each including pursuant to Section 13(a) or 15(d) thereof, for the two years preceding the date hereof (or such shorter period as in effect on the dates so filed. None of Company was required by law to file such formsmaterial) (the foregoing materials, reports or documents, including, without limitation, any financial statements or schedules included or including the exhibits thereto and documents incorporated by reference therein, containedbeing collectively referred to herein as the “SEC Reports”) on a timely basis or has received a valid extension of such time of filing and has filed any such SEC Reports prior to the expiration of any such extension. As of their respective dates, the SEC Reports complied in all material respects with the requirements of the Act and the Exchange Act, as applicable, and none of the SEC Reports, when filed, any included an untrue statement of a material fact or omitted to state a material fact required to be stated or incorporated by reference therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. The Company has heretofore made available or promptly will make available agreements and documents described in the Registration Statement, the Prospectus, the Prospectus Supplement and the SEC Reports conform to the Purchaserdescriptions thereof contained therein in all material respects and there are no material agreements or other documents required by the Securities Act and the rules and regulations thereunder to be described in the Registration Statement, the Prospectus, the Prospectus Supplement or the SEC Reports or to be filed with the Commission as exhibits to the Registration Statement, that have not been so described or filed. Each agreement or other instrument (however characterized or described) to which the Company is a complete party or by which it is or may be bound or affected and correct copy of any amendment (i) that is referred to in the Registration Statement, the Prospectus, the Prospectus Supplement or the SEC Reports, or (ii) is material to the Company’s business, has been duly authorized and validly executed by the Company, is in full force and effect in all material respects and is enforceable against the Company and, to the Company’s knowledge, the other parties thereto, in accordance with its terms, except (x) as such enforceability maybe limited by bankruptcy, insolvency, reorganization or similar laws affecting creditors’ rights generally, (y) as enforceability of any indemnification or contribution provision may be limited under the federal and state securities laws, and (z) that the remedy of specific performance and injunctive and other forms of equitable relief may be subject to the equitable defenses and to the discretion of the court before which any proceeding therefore may be brought. None of such agreements or instruments has been assigned by the Subsidiaries of Company, and neither the Company is required nor, to file any reports, statements, forms or other documents with the SEC.
(b) The SEC Reports contain audited consolidated balance sheets of the Company and its Subsidiaries as of December 31 in each of the years 1995 through 1998, and the related audited consolidated statements of income, statements of cash flow and changes in Shareholders' equity of the Company and its Subsidiaries for the fiscal years then ended, together with the respective reports thereon of KPMG LLP. These audited financial statements of the Company were included or incorporated by reference in the SEC Reports (collectively, including the footnotes thereto, the "SEC Financial Statements"), were prepared in accordance with GAAP (except as otherwise stated in the SEC Financial Statements or in the related reports of the Company's independent accountants) and present fairly ’s knowledge, any other party is in default thereunder and, to the consolidated financial position of the Company and its subsidiaries as at the dates thereofCompany’s knowledge, and the results of operations, changes in financial position and statements of Shareholders' equity of the Company and its Subsidiaries for the periods indicated. No no event has occurred since that, with the Balance Sheet Date that lapse of time or the giving of notice, or both, would require constitute a restatement default thereunder. To the Company’s knowledge, performance by the Company of the SEC Financial Statements under GAAP other than by reason material provisions of such agreements or instruments will not result in a change in GAAP. The SEC Financial Statements reflectmaterial violation of any existing applicable law, and on the Closing Date will reflectrule, the interest regulation, judgment, order or decree of any governmental agency or court, domestic or foreign, having jurisdiction over the Company in the assets, liabilities and operations of all Subsidiaries of the Company.
(c) Neither the Company nor or any of its Subsidiaries has any material liabilityassets or businesses, obligation or commitment of any nature whatsoever (whether known or unknown due or including, without limitation, those relating to become due, accrued, fixed, contingent, liquidated, unliquidated or otherwise) other than liabilities, obligations or commitments (i) which are accrued or reserved against in the consolidated balance sheet of the Company environmental laws and its consolidated subsidiaries as of December 31, 1999 included in the Audited Financial Statements or reflected in the notes thereto, (ii)(x) which arose in the ordinary course of business since such date and (y) which do not or would not individually or in the aggregate have a Material Adverse Effect, or (iii) which are of the type that would not be required to be reflected on a consolidated balance sheet of the Company and its Subsidiaries or in the notes thereto if such balance sheet were prepared in accordance with GAAP as of the date thereof or as of the Closing Date, as the case may beregulations.
(d) Except as set forth on Schedule 5.25(d), since the date of the Company's 1999 Proxy Statement to the date hereof, the Company has not entered into or otherwise become obligated with respect to any transactions which would require disclosure pursuant to Item 404 of Regulation S-K in accordance with Items 7(b) or (c) of Schedule 14A under the Exchange Act were a Company proxy statement to be distributed as of the date hereof.
Appears in 1 contract
Sources: At the Market Offering Agreement (Sonoma Pharmaceuticals, Inc.)
SEC Reports. (a) The Company has filed all required forms, reports and documents with the SEC since December 31, 1995 (collectively, the "SEC Reports"), except Notwithstanding that the Company will file a Notification of Late Filing on Form 126-25 notifying the SEC that its Form 10-K for its 1999 fiscal year could Issuers may not be filed within subject to the prescribed time period. Each reporting requirements of Section 13 or 15(d) of the SEC Reports has complied in all material respects with all applicable requirements of Exchange Act or otherwise report on an annual and quarterly basis on forms provided for such annual and quarterly reporting pursuant to rules and regulations promulgated by the Securities Act and SEC, to the extent permitted by the Exchange Act, each as in effect on the dates so filed. None of such forms, reports or documents, including, without limitation, any financial statements or schedules included or incorporated by reference therein, contained, when filed, any untrue statement of a material fact or omitted to state a material fact required to be stated or incorporated by reference therein or necessary in order to make Issuers will file with the statements therein, in light of the circumstances under which they were made, not misleading. The Company has heretofore made available or promptly will SEC (and make available to the PurchaserTrustee and the Holders of the Securities, a complete without cost to any Holders within 15 days after the Company files them with the SEC), from and correct copy after the Issue Date, the annual reports and the information, documents and other reports (or copies of such portions of any amendment of the foregoing as the SEC may by rules and regulations prescribe) that are specified in Sections 13 and 15(d) of the Exchange Act with respect to U.S. issuers within the time periods specified therein or in the relevant forms; provided that notwithstanding the foregoing, (A) other than with respect to information required to be delivered pursuant to Rule 144A(d)(4), the first report (other than the one referred to in clause (B) below) required to be delivered shall be the quarterly report with respect to the SEC Reports. None of fiscal quarter ending ▇▇▇▇▇ ▇, ▇▇▇▇, (▇) with respect to the Subsidiaries fiscal year of the Company is required ending December 31, 2009, the only obligation of the Issuers under this covenant shall be to file any reportsdeliver financial statements of the Company for such fiscal year audited by the Company’s independent registered accounting firm, statementsincluding the report from the Company’s independent registered accounting firm, forms or other documents together with the SEC.
(b) The SEC Reports contain audited consolidated balance sheets “Management’s discussion and analysis of financial condition and results of operations” of the Company and its Subsidiaries as of December 31 in each within 90 days of the years 1995 through 1998end of such fiscal year and (C) until the effectiveness of the exchange offer and/or shelf registration statement relating to the Securities (such date, the “Effectiveness Date”), such reports shall prepared on a basis and presented in a level of detail comparable to the related audited consolidated financial statements and management discussion and analysis of incomethe results of operations, statements of cash flow liquidity and changes in Shareholders' equity capital resources of the Company and its Subsidiaries contained in the offering memorandum for the fiscal years then endedSecurities and shall not be required to be compliant with Regulation S-X under the Act. In the event that the Issuers are not permitted to file such reports, together documents and information with the respective reports thereon SEC pursuant to the Exchange Act, the Issuers will nevertheless make available such Exchange Act reports, documents and information to the Trustee and the Holders as of KPMG LLPthe Issuers were subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act within the time periods specified therein or in the relevant forms, which requirement may be satisfied by posting such reports, documents and information on its website within the time periods specified by this Section 3.11. These audited Until the Effectiveness Date, the Company will hold quarterly conference calls for beneficial owners of, and prospective investors in, the Securities and securities analysts after the Company’s financial statements for the prior fiscal period have been made available; provided that such conference calls shall be held no later than 30 days after the date that such financial statements are required to be made available. No fewer than three business days prior to the date of the conference call required to be held in accordance with the preceding sentence the Company were included shall issue a press release to the appropriate U.S. wire services announcing the time and the date of such conference call and directing the beneficial owners of, and prospective investors in, the Securities and securities analysts to contact an individual at the Company (for whom contact information shall be provided in such press release) to obtain information on how to access such conference call. Delivery of such reports, information and documents to the Trustee is for informational purposes only, and the Trustee’s receipt of such documents shall not constitute constructive notice of any information contained therein or incorporated by reference in the SEC Reports (collectivelydeterminable from information contained therein, including the footnotes theretoCompany’s compliance with any of its covenants hereunder (as to which the Trustee is entitled to rely exclusively on Officers’ Certificates to the extent set forth in Sections 7.1 and 7.2). If the Issuers have designated any Subsidiaries as Unrestricted Subsidiaries, and such Unrestricted Subsidiaries, either individually or collectively, would otherwise have been a Significant Subsidiary, then the "SEC Financial Statements")quarterly and annual financial information required by the preceding paragraph shall include a reasonably detailed presentation, were prepared as determined in accordance with GAAP (except as otherwise stated in good faith by senior management of the SEC Financial Statements Company, either on the face of the financial statements or in the related reports footnotes to the financial statements and in management’s discussion and analysis of financial condition and results of operations, of the Company's independent accountants) financial condition and present fairly the consolidated financial position results of operations of the Company and its subsidiaries Restricted Subsidiaries separate from the financial condition and results of operations of the Unrestricted Subsidiaries. In addition, the Issuers and the Subsidiary Guarantors shall make available to the Holders and to prospective investors, upon the request of such Holders, the information required to be delivered pursuant to Rule 144A(d)(4) under the Securities Act so long as at the dates thereofSecurities are not freely transferable under the Securities Act. For purposes of this Section 3.11, the Issuers and the Subsidiary Guarantors will be deemed to have furnished the reports to the Trustee and the Holders of Securities as required by this Section 3.11 if the Company has filed such reports with the SEC via the ▇▇▇▇▇ filing system and such reports are publicly available. The filing requirements set forth above for the applicable period may be satisfied by the Issuers prior to the commencement of the offering of the Exchange Securities or the effectiveness of the Shelf Registration Statement by the filing with the SEC of the registration statement relating to the exchange offer pursuant to the Registration Rights Agreement and/or the Shelf Registration Statement, and any amendments thereto, with such financial information that satisfies Regulation S-X of the results Securities Act; provided that this paragraph shall not supersede or in any manner suspend or delay the Company’s reporting obligations set forth in the first three paragraphs of operations, changes in financial position and statements of Shareholders' equity this Section 3.11. In the event that any direct or indirect parent company of the Company and its Subsidiaries for the periods indicated. No event has occurred since the Balance Sheet Date that would require executes a restatement Guarantee of the SEC Financial Statements under GAAP other than by reason of a change in GAAP. The SEC Financial Statements reflect, and on the Closing Date will reflectSecurities, the interest Company may satisfy its obligations under this Section 3.11 by furnishing financial information relating to such parent; provided that (x) subject to the provisions of the first paragraph of this Section 3.11, such financial statements are accompanied by consolidating financial information for such parent, the Company, the Subsidiary Guarantors and the Subsidiaries of the Company that are not Subsidiary Guarantors in the assetsmanner prescribed by the SEC and (y) such parent is not engaged in any business in any material respect other than incidental to its ownership, liabilities and operations directly or indirectly, of all Subsidiaries the Capital Stock of the Company.
(c) Neither the Company nor any of its Subsidiaries has any material liability, obligation or commitment of any nature whatsoever (whether known or unknown due or to become due, accrued, fixed, contingent, liquidated, unliquidated or otherwise) other than liabilities, obligations or commitments (i) which are accrued or reserved against in the consolidated balance sheet of the Company and its consolidated subsidiaries as of December 31, 1999 included in the Audited Financial Statements or reflected in the notes thereto, (ii)(x) which arose in the ordinary course of business since such date and (y) which do not or would not individually or in the aggregate have a Material Adverse Effect, or (iii) which are of the type that would not be required to be reflected on a consolidated balance sheet of the Company and its Subsidiaries or in the notes thereto if such balance sheet were prepared in accordance with GAAP as of the date thereof or as of the Closing Date, as the case may be.
(d) Except as set forth on Schedule 5.25(d), since the date of the Company's 1999 Proxy Statement to the date hereof, the Company has not entered into or otherwise become obligated with respect to any transactions which would require disclosure pursuant to Item 404 of Regulation S-K in accordance with Items 7(b) or (c) of Schedule 14A under the Exchange Act were a Company proxy statement to be distributed as of the date hereof.
Appears in 1 contract
Sources: Indenture (Colt Finance Corp.)
SEC Reports. (a) The Since January 1, 2013 (the “Reference Date”), the Company has filed or furnished (as applicable) all required forms, reports reports, schedules, statements and documents with the SEC since December 31that have been required to be so filed or furnished (as applicable) by it under Applicable Law at or prior to the time so required, 1995 (collectivelyincluding any amendments or supplements thereto, and, after the "SEC Reports")date of this Agreement and until the Effective Time, except that the Company will file a Notification of Late Filing on Form 126-25 notifying all forms, reports, schedules, statements and documents with the SEC that its Form 10-K for its 1999 fiscal year could not are required to be filed within by it under Applicable Law at or prior to the prescribed time period. Each of so required, including any amendments or supplements thereto (all such forms, reports, schedules, statements and documents, as amended or supplemented, filed or furnished since the Reference Date, together with any other forms, reports, schedules, statements or other documents filed or furnished (as applicable) by the Company with the SEC Reports has complied at or prior to the Effective Time that are not required to be so filed or furnished, the “SEC Reports”).
(b) Each SEC Report complied, or will comply, as the case may be, as of its filing date, in all material respects with all the applicable requirements of the Securities Act and or the Exchange Act, as the case may be, and with all applicable provisions of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act, each as in effect on the dates so date such SEC Report was, or will be, filed. None .
(c) Since the Reference Date, neither the Company nor any of its Subsidiaries has received from the SEC or any other Governmental Authority any written comments or questions with respect to any of the SEC Reports (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 Authority that such formsSEC Reports (including the financial statements included therein) or registration statements are being reviewed or investigated, reports or documentsand, includingto the knowledge of the Company, without limitationthere is not, as of the date of this Agreement, any investigation or review being conducted by the SEC or any other Governmental Authority of any SEC Reports (including the financial statements included therein), except in each case for such comments, questions, notices, investigations or schedules included or incorporated by reference therein, contained, when filed, any untrue statement of a material fact or omitted to state a material fact required to be stated or incorporated by reference therein or necessary in order to make the statements therein, in light of the circumstances under reviews which they were made, not misleading. The Company has heretofore made available or promptly will make available to the Purchaser, a complete and correct copy of any amendment to the SEC Reports. have been fully resolved.
(d) None of the Company’s Subsidiaries of the Company is required to file any forms, reports, statementsschedules, forms statements or other documents with the SEC.
(be) The SEC Reports contain audited consolidated balance sheets Since the Reference Date, no executive officer of the Company and its Subsidiaries as has failed to make the certifications required of December 31 in each him or her under Section 302 or 906 of the years 1995 through 1998▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act with respect to any SEC Report, except as disclosed in certifications filed with the SEC Reports, and at the related audited consolidated statements time of incomefiling or submission of each such certification, statements of cash flow such certification was true and changes in Shareholders' equity of the Company accurate and its Subsidiaries for the fiscal years then ended, together complied with the respective reports thereon of KPMG LLP▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act. These audited financial statements of Since the Company were included or incorporated by reference in the SEC Reports (collectivelyReference Date, including the footnotes thereto, the "SEC Financial Statements"), were prepared in accordance with GAAP (except as otherwise stated in the SEC Financial Statements or in the related reports of the Company's independent accountants) and present fairly the consolidated financial position of the Company and its subsidiaries as at the dates thereof, and the results of operations, changes in financial position and statements of Shareholders' equity of the Company and its Subsidiaries for the periods indicated. No event has occurred since the Balance Sheet Date that would require a restatement of the SEC Financial Statements under GAAP other than by reason of a change in GAAP. The SEC Financial Statements reflect, and on the Closing Date will reflect, the interest of the Company in the assets, liabilities and operations of all Subsidiaries of the Company.
(c) Neither neither the Company nor any of its Subsidiaries executive officers has received notice from any material liabilityGovernmental Authority challenging or questioning the accuracy, obligation completeness, form or commitment manner of any nature whatsoever (whether known or unknown due or to become due, accrued, fixed, contingent, liquidated, unliquidated or otherwise) other than liabilities, obligations or commitments (i) which are accrued or reserved against in the consolidated balance sheet filing of the Company and its consolidated subsidiaries as of December 31, 1999 included in the Audited Financial Statements or reflected in the notes thereto, (ii)(x) which arose in the ordinary course of business since such date and (y) which do not or would not individually or in the aggregate have a Material Adverse Effect, or (iii) which are of the type that would not be required to be reflected on a consolidated balance sheet of the Company and its Subsidiaries or in the notes thereto if such balance sheet were prepared in accordance with GAAP as of the date thereof or as of the Closing Date, as the case may becertifications.
(d) Except as set forth on Schedule 5.25(d), since the date of the Company's 1999 Proxy Statement to the date hereof, the Company has not entered into or otherwise become obligated with respect to any transactions which would require disclosure pursuant to Item 404 of Regulation S-K in accordance with Items 7(b) or (c) of Schedule 14A under the Exchange Act were a Company proxy statement to be distributed as of the date hereof.
Appears in 1 contract
Sources: Merger Agreement (Informatica Corp)
SEC Reports. (a) The Company Except as set forth on Schedule 4.22, a21 has filed all required formsmaterial proxy statements, reports and other material documents with required to be filed by it under the SEC since Exchange Act. a21 has filed copies of: (i) its Annual Report on Form 10-KSB for its fiscal year ended December 31, 1995 2004; and (ii) its Quarterly Reports on Form 10-QSB for its fiscal quarters ended March 31, 2005, June 30, 2005 and September 30, 2005, and (iii) the Form 8-K filings which it has made during the fiscal year to date (collectively, the "“SEC Reports"”), except that the Company will . a21 shall file a Notification of Late Filing its Annual Report on Form 126-25 notifying the SEC that its Form 10-K KSB for its 1999 fiscal year could not be filed within ended December 31, 2005 during the prescribed time periodextension period for making such filing under applicable federal securities laws. Each SEC Report was, at the time of the SEC Reports has complied its filing, in compliance in all material respects with all applicable the requirements of its respective form and none of the Securities Act SEC Reports, nor the financial statements (and the Exchange Actnotes thereto) included in the SEC Reports, each as in effect on the dates so filed. None of such formstheir respective filing dates, reports or documents, including, without limitation, any financial statements or schedules included or incorporated by reference therein, contained, when filed, contained any untrue statement of a material fact or omitted to state a material fact required to be stated or incorporated by reference 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 heretofore made available or promptly will make available Each registration statement and any amendment thereto filed by a21 since January 1, 2003 pursuant to the Purchaser, a complete and correct copy of any amendment to the SEC Reports. None of the Subsidiaries of the Company is required to file any reports, statements, forms or other documents with the SEC.
(b) The SEC Reports contain audited consolidated balance sheets of the Company and its Subsidiaries as of December 31 in each of the years 1995 through 1998, Securities Act and the related audited consolidated statements of incomerules and regulations thereunder, statements of cash flow and changes in Shareholders' equity of the Company and its Subsidiaries for the fiscal years then ended, together with the respective reports thereon of KPMG LLP. These audited financial statements of the Company were included or incorporated by reference in the SEC Reports (collectively, including the footnotes thereto, the "SEC Financial Statements"), were prepared in accordance with GAAP (except as otherwise stated in the SEC Financial Statements or in the related reports of the Company's independent accountants) and present fairly the consolidated financial position of the Company and its subsidiaries as at the dates thereof, and the results of operations, changes in financial position and statements of Shareholders' equity of the Company and its Subsidiaries for the periods indicated. No event has occurred since the Balance Sheet Date that would require a restatement of the SEC Financial Statements under GAAP other than by reason of a change in GAAP. The SEC Financial Statements reflect, and on the Closing Date will reflect, the interest of the Company in the assets, liabilities and operations of all Subsidiaries of the Company.
(c) Neither the Company nor any of its Subsidiaries has any material liability, obligation or commitment of any nature whatsoever (whether known or unknown due or to become due, accrued, fixed, contingent, liquidated, unliquidated or otherwise) other than liabilities, obligations or commitments (i) which are accrued or reserved against in the consolidated balance sheet of the Company and its consolidated subsidiaries as of December 31, 1999 included in the Audited Financial Statements or reflected in the notes thereto, (ii)(x) which arose in the ordinary course of business since such date and (y) which do not or would not individually or in the aggregate have a Material Adverse Effect, or (iii) which are of the type that would not be required to be reflected on a consolidated balance sheet of the Company and its Subsidiaries or in the notes thereto if such balance sheet were prepared in accordance with GAAP as of the date thereof such statement or amendment became effective, complied as to form in all material respects with the Securities Act and did not 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 made therein not misleading; and each prospectus filed pursuant to Rule 424(b) under the Securities Act, as of its issue date and as of the Closing Dateclosing of any sale of securities pursuant thereto did not 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 made therein, as in the case may be.
(d) Except as set forth on Schedule 5.25(d), since the date light of the Company's 1999 Proxy Statement to the date hereofcircumstances under which they were made, the Company has not entered into or otherwise become obligated with respect to any transactions which would require disclosure pursuant to Item 404 of Regulation S-K in accordance with Items 7(b) or (c) of Schedule 14A under the Exchange Act were a Company proxy statement to be distributed as of the date hereofmisleading.
Appears in 1 contract
SEC Reports. (a) The Company SyntheMed has on a timely basis filed all required forms, reports and documents required to be filed by it with the SEC since December 31January 1, 1995 2009 (collectivelysuch documents, as supplemented or amended since the time of filing, the "“SyntheMed SEC Reports"”), except that the Company will file a Notification of Late Filing on Form 126-25 notifying the SEC that its Form 10-K for its 1999 fiscal year could not be filed within the prescribed time period. Each of the The SyntheMed SEC Reports has complied (i) were or will be prepared in all material respects accordance with all applicable the requirements of the Securities Act and the Exchange Act, as the case may be, and, to the extent then applicable, SOX, including in each as case, the rules and regulations thereunder and (ii) except to the extent that information contained in effect on any SyntheMed SEC Reports has been revised, modified or superseded (prior to the dates so filed. None date of such formsthis Agreement) by a later filed SyntheMed SEC Report, reports did not at the time they were filed with the SEC, or documentswill not at the time they are filed with the SEC, including, without limitation, any financial statements or schedules included or incorporated by reference therein, contained, when filed, 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 the light of the circumstances under which they were made, not misleading. The Company No Subsidiary of SyntheMed is or has heretofore made available or promptly will make available to the Purchaser, a complete and correct copy of any amendment to the SEC Reports. None of the Subsidiaries of the Company is been required to file any reportsform, statementsreport, forms registration statement or other documents document with the SEC. SyntheMed maintains disclosure controls and procedures required by Rule 13a-15 or 15d-15 under the Exchange Act; and such controls and procedures are designed to ensure that all material information concerning SyntheMed and its Subsidiaries is made known on a timely basis to the individuals responsible for the preparation of SyntheMed’s filings with the SEC and other public disclosure documents. As used in this Section 2.4, 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. With respect to SyntheMed’s Annual Report on Form 10-K for each fiscal year of SyntheMed beginning on or after January 1, 2009 and SyntheMed’s Quarterly Reports on Form 10-Q for each of the first three fiscal quarters in each of such fiscal years of SyntheMed, all certifications and statements with respect thereto and required by Rules 13a-14 and 15d-14 under the Exchange Act and Sections 302 and 906 of SOX, and the rules and regulations of the SEC promulgated thereunder, complied with such rules and regulations and the statements contained in such certifications statements were true and correct as of the date of the filing thereof.
(b) The SEC Reports contain audited consolidated balance sheets Since January 1, 2009, neither SyntheMed nor any of the Company and its Subsidiaries as or, to SyntheMed’s Knowledge, any Representative of December 31 in each SyntheMed or any of the years 1995 through 1998, and the related audited consolidated statements of income, statements of cash flow and changes in Shareholders' equity of the Company and its Subsidiaries for has received or has otherwise had or obtained knowledge of any complaint, allegation, assertion or claim, whether written or oral, regarding the fiscal years then endedaccounting or auditing practices, together with the respective reports thereon procedures, methodologies or methods of KPMG LLP. These audited SyntheMed or any of its Subsidiaries or their internal control over financial statements of the Company were included or incorporated by reference in the SEC Reports (collectivelyreporting, including the footnotes theretoany complaint, the "SEC Financial Statements")allegation, were prepared in accordance with GAAP (except as otherwise stated in the SEC Financial Statements assertion or in the related reports claim that SyntheMed or any of the Company's independent accountants) and present fairly the consolidated financial position of the Company and its subsidiaries as at the dates thereof, and the results of operations, changes in financial position and statements of Shareholders' equity of the Company and its Subsidiaries for the periods indicated. No event has occurred since the Balance Sheet Date that would require a restatement of the SEC Financial Statements under GAAP other than by reason of a change engaged in GAAP. The SEC Financial Statements reflect, and on the Closing Date will reflect, the interest of the Company in the assets, liabilities and operations of all Subsidiaries of the Companyquestionable accounting or auditing practices.
(c) Neither The SyntheMed Corporations have implemented and maintain a system of internal control over financial reporting (as defined in Rules 13a-15(f) and 15d-15(f) under the Company nor any Exchange Act) sufficient to provide reasonable assurance regarding the reliability of its Subsidiaries has any material liabilityfinancial reporting and the preparation of financial statements for external purposes in accordance with GAAP, obligation or commitment of any nature whatsoever (whether known or unknown due or to become dueincluding, accruedwithout limitation, fixed, contingent, liquidated, unliquidated or otherwise) other than liabilities, obligations or commitments that (i) which transactions are accrued executed in accordance with management’s general or reserved against in the consolidated balance sheet of the Company and its consolidated subsidiaries as of December 31, 1999 included in the Audited Financial Statements or reflected in the notes theretospecific authorizations, (ii)(xii) which arose transactions are recorded as necessary to permit preparation of financial statements in the ordinary course of business since such date conformity with GAAP and (y) which do not or would not individually or in the aggregate have a Material Adverse Effectto maintain asset accountability, or (iii) which are of the type that would not be required access to be reflected on a consolidated balance sheet of the Company and its Subsidiaries or in the notes thereto if such balance sheet were prepared assets is permitted only in accordance with GAAP as 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. Since January 1, 2009, (A) there have not been any changes in the SyntheMed Corporations’ internal control over financial reporting that have materially affected, or are reasonably likely to materially affect, the SyntheMed Corporations’ internal control over financial reporting; (B) all significant deficiencies and material weaknesses in the design or operation of the date thereof SyntheMed Corporations’ internal control over financial reporting which are reasonably likely to adversely affect the SyntheMed Corporations’ ability to record, process, summarize and report financial information have been disclosed to SyntheMed’s outside auditors and the audit committee of SyntheMed’s board of directors, and (C) there has not been any fraud, whether or as of not material, that involves management or other employees who have a significant role in the Closing Date, as the case may beSyntheMed Corporations’ internal control over financial reporting.
(d) Except as set forth on Schedule 5.25(d)SyntheMed is, and since January 1, 2009 has been, in compliance with the date applicable provisions of the Company's 1999 Proxy Statement to the date hereof, the Company has not entered into or otherwise become obligated with respect to any transactions which would require disclosure pursuant to Item 404 of Regulation S-K in accordance with Items 7(b) or (c) of Schedule 14A under the Exchange Act were a Company proxy statement to be distributed as of the date hereofSOX.
Appears in 1 contract
Sources: Merger Agreement (SyntheMed, Inc.)
SEC Reports. (a) The Each of the Company and the Partnership has filed all required reports, schedules, forms, reports statements and other documents required to be filed with the SEC since December 31January 1, 1995 2002 through the date hereof (collectively, the "“Company SEC Reports"”), except that all of which, at the Company will file a Notification time of Late Filing on Form 126-25 notifying the SEC that its Form 10-K for its 1999 fiscal year could not be filed within the prescribed time period. Each of the SEC Reports has filing thereof, complied in all material respects with all applicable requirements of the Exchange Act, the Securities Act and the Exchange Act, each as in effect on rules and regulations promulgated thereunder (the dates so filed“Securities Laws”) applicable to such Company SEC Reports. None of such forms, reports or documents, including, without limitation, any financial statements or schedules included or incorporated by reference therein, the Company SEC Reports at the time of filing contained, when filednor will any report, schedule, form, statement or other document filed by the Company or the Partnership after the date hereof and prior to the Effective Time contain, any untrue statement of a material fact or omitted omitted, or will 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 the light of the circumstances under which they were made, not misleading. The Company has heretofore made available or promptly will make available to the Purchaser, a complete and correct copy of any amendment to the SEC Reports. None Each of the Subsidiaries of the Company is required to file any reports, statements, forms or other documents with the SEC.
(b) The SEC Reports contain audited consolidated balance sheets of the Company and its Subsidiaries as of December 31 in each of the years 1995 through 1998, and the related audited consolidated statements of income, statements of cash flow and changes in Shareholders' equity of the Company and its Subsidiaries for the fiscal years then ended, together with the respective reports thereon of KPMG LLP. These audited financial statements of the Company were included or incorporated by reference in the Company SEC Reports (collectivelyor of the Partnership included or incorporated by reference in the Company SEC Reports complied, including or will comply if filed after the footnotes date hereof, in all material respects with applicable accounting requirements and the published rules and regulations of the SEC with respect thereto, have been, or will be if filed after the "SEC Financial Statements")date hereof, were prepared in accordance with GAAP (except, in the case of unaudited statements, as permitted by the applicable rules and regulations of the SEC and normal year end audit adjustments which would not be material in amount or effect) applied on a consistent basis during the periods involved (except as otherwise stated may be indicated in the SEC Financial Statements notes thereto) and fairly presented, or will fairly present if filed after the date hereof, in all material respects in accordance with the related reports applicable requirements of GAAP and the applicable rules and regulations of the Company's independent accountants) and present fairly SEC, the consolidated financial position of the Company and its subsidiaries Subsidiaries or of the Partnership and its Subsidiaries, as at the case may be, in each case taken as a whole, as of the dates thereof, thereof and the consolidated results of operations, changes shareholders’ and partners’ equity 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). The Company has established and maintains disclosure controls and procedures and has otherwise operated in compliance with the requirements under Rules 13a-15 and 15d-15 of the Exchange Act. The Company has designed and maintains a system of “internal controls over financial position reporting” (as defined in Rules 13a-15(f) and statements 15d-15(f) of Shareholders' equity the Exchange Act) sufficient to provide reasonable assurances regarding the reliability of financial reporting for the Company and the Partnership.
(b) Except as set forth in Sections 3.7(b) and 3.8 of the Company and its Subsidiaries for the periods indicated. No event has occurred since the Balance Sheet Date that would require a restatement of the SEC Financial Statements under GAAP other than by reason of a change in GAAP. The SEC Financial Statements reflectDisclosure Schedule, and on the Closing Date will reflect, the interest there are no liabilities of the Company in or any of the assets, liabilities and operations of all Company Subsidiaries of the Company.
(c) Neither any kind whatsoever, whether or not accrued and whether or not contingent or absolute, that are material to the Company nor any of its Subsidiaries has any material liabilityand the Company Subsidiaries, obligation or commitment of any nature whatsoever (whether known or unknown due or to become duetaken as a whole, accrued, fixed, contingent, liquidated, unliquidated or otherwise) other than liabilities, obligations or commitments (i) which are accrued or reserved against liabilities disclosed in the consolidated balance sheet Company SEC Reports filed prior to the date hereof (the “Company Filed SEC Reports”), (ii) liabilities incurred on behalf of the Company or any Company Subsidiary in connection with this Agreement and its consolidated subsidiaries as of December 31the contemplated Mergers, 1999 included in the Audited Financial Statements or reflected in the notes thereto, and (ii)(xiii) which arose liabilities incurred in the ordinary course of business consistent with past practice since such date and (y) which do not or March 31, 2005 as would not individually or in the aggregate reasonably be likely to have a Company Material Adverse Effect, or (iii) which are of the type that would not be required to be reflected on a consolidated balance sheet of the Company and its Subsidiaries or in the notes thereto if such balance sheet were prepared in accordance with GAAP as of the date thereof or as of the Closing Date, as the case may be.
(dc) Except The Company has previously provided or made available to Parent a complete and correct copy of any amendments or modifications which have not yet been filed with the SEC to agreements, documents or other instruments which previously had been filed by the Company with the SEC as set forth on Schedule 5.25(d), since the date of the Company's 1999 Proxy Statement exhibits to the date hereof, the Company has not entered into or otherwise become obligated with respect to any transactions which would require disclosure SEC Reports pursuant to Item 404 of Regulation S-K in accordance with Items 7(b) the Securities Act and the rules and regulations promulgated thereunder or (c) of Schedule 14A under the Exchange Act were a Company proxy statement to be distributed as of and the date hereofrules and regulations promulgated thereunder.
Appears in 1 contract
SEC Reports. (a) The Company has filed all required forms, reports and documents with the SEC since December 31, 1995 (collectively, the "SEC Reports"), except Notwithstanding that the Company will file a Notification of Late Filing on Form 126-25 notifying the SEC that its Form 10-K for its 1999 fiscal year could may not be filed within subject to the prescribed time period. Each of the SEC Reports has complied in all material respects with all applicable reporting requirements of the Securities Act and Section 13 or 15(d) of the Exchange Act, each the Company shall file with the SEC (to the extent the SEC will accept such filings) and provide the Trustee and Noteholders with such annual reports and such information, documents and other reports as are specified in effect Sections 13 and 15(d) of the Exchange Act and applicable to a U.S. corporation subject to such Sections, such information, documents and other reports to be so filed and provided at the times specified for the filings of such information, documents and reports under such Sections; provided, however, that so long as Parent is a Guarantor of the Notes and complies with the requirements of Rule 3-10 of Regulation S-X promulgated by the SEC (or any successor provision), the reports, information and other documents required to be filed and provided as described hereunder may, at the Company’s option, be filed by and be those of Parent rather than the Company. Additionally, the Company agrees that it shall not take any action for the purpose of causing the SEC not to accept any such filings. If, notwithstanding the foregoing, the SEC will not accept the Company’s filings for any reason, the Company shall post the reports, information and documents referred to in this paragraph on its website within the time periods that would apply if the Company were required to file those reports with the SEC. At any time that any of the Company’s Subsidiaries are Unrestricted Subsidiaries, then the quarterly and annual financial information required by the preceding paragraphs shall include a reasonably detailed presentation, either on the dates so filed. None face of such forms, reports or documents, including, without limitation, any the financial statements or schedules included or incorporated by reference thereinin the footnotes thereto, contained, when filed, any untrue statement of a material fact or omitted to state a material fact required to be stated or incorporated by reference therein or necessary and in order to make the statements therein, in light “Management discussion and analysis,” of the circumstances under which they were made, not misleading. The Company has heretofore made available or promptly will make available to the Purchaser, a complete financial condition and correct copy results of any amendment to the SEC Reports. None of the Subsidiaries of the Company is required to file any reports, statements, forms or other documents with the SEC.
(b) The SEC Reports contain audited consolidated balance sheets operations of the Company and its Restricted Subsidiaries as separate from the financial condition and results of December 31 in each operations of the years 1995 through 1998, and the related audited consolidated statements of income, statements of cash flow and changes in Shareholders' equity of the Company and its Subsidiaries for the fiscal years then ended, together with the respective reports thereon of KPMG LLP. These audited financial statements of the Company were included or incorporated by reference in the SEC Reports (collectively, including the footnotes thereto, the "SEC Financial Statements"), were prepared in accordance with GAAP (except as otherwise stated in the SEC Financial Statements or in the related reports of the Company's independent accountants) and present fairly the consolidated financial position of the Company and its subsidiaries as at the dates thereof, and the results of operations, changes in financial position and statements of Shareholders' equity of the Company and its Subsidiaries for the periods indicated. No event has occurred since the Balance Sheet Date that would require a restatement of the SEC Financial Statements under GAAP other than by reason of a change in GAAP. The SEC Financial Statements reflect, and on the Closing Date will reflect, the interest of the Company in the assets, liabilities and operations of all Unrestricted Subsidiaries of the Company.
(c) Neither . In addition, the Company nor any of its Subsidiaries has any material liability, obligation or commitment of any nature whatsoever (whether known or unknown due or shall furnish to become due, accrued, fixed, contingent, liquidated, unliquidated or otherwise) other than liabilities, obligations or commitments (i) which are accrued or reserved against in the consolidated balance sheet Holders of the Company Notes and its consolidated subsidiaries as to prospective investors, upon the requests of December 31such Holders, 1999 included in the Audited Financial Statements or reflected in the notes thereto, (ii)(x) which arose in the ordinary course of business since such date and (y) which do not or would not individually or in the aggregate have a Material Adverse Effect, or (iii) which are of the type that would not be any information required to be reflected on a consolidated balance sheet of delivered pursuant to Rule 144A(d)(4) under the Company and its Subsidiaries or in the notes thereto if such balance sheet were prepared in accordance with GAAP as of the date thereof or as of the Closing Date, Securities Act so long as the case may be.
(d) Except as set forth on Schedule 5.25(d), since the date of the Company's 1999 Proxy Statement to the date hereof, the Company has Notes are not entered into or otherwise become obligated with respect to any transactions which would require disclosure pursuant to Item 404 of Regulation S-K in accordance with Items 7(b) or (c) of Schedule 14A freely transferable under the Exchange Act were a Company proxy statement to be distributed as of the date hereofSecurities Act.
Appears in 1 contract
Sources: Indenture (Reddy Ice Holdings Inc)
SEC Reports. Meridian has delivered or made available to Citizens and Citizens Mutual (ai) The Company has filed all required formseach registration statement, reports and documents with Current Report on Form 8-K, Quarterly Report on Form 10-Q, annual report to shareholders, proxy statement or information statement prepared by it since January 1, 1992, (ii) an Annual Report on Form 10-K for each of the SEC since years ended December 31, 1995 1991, 1992, 1993 and 1994, and (iii) a Quarterly Report on Form 10-Q for each of the periods ended March 31, June 30 and September 30, 1995, each in the form (including exhibits) filed with Securities and Exchange Commission (collectively, the "Meridian SEC Reports"). As of its respective date, except that the Company will file a Notification of Late Filing on Form 126-25 notifying the SEC that its Form 10-K for its 1999 fiscal year could not be filed within the prescribed time period. Each each of the Meridian SEC Reports has complied in all material respects with all applicable requirements of the Securities Act and the Exchange Act, each as in effect on the dates so filed. None of such forms, reports or documents, including, without limitation, any financial statements or schedules included or incorporated by reference therein, contained, when filed, did not contain any untrue statement statements 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 in which they were made, not misleading. The Company has heretofore made available or promptly will make available to the Purchaser, a complete and correct copy of any amendment to the SEC Reports. None Each of the Subsidiaries of balance sheets included in or incorporated by reference into the Company is required to file any reports, statements, forms or other documents with the SEC.
(b) The Meridian SEC Reports contain audited consolidated balance sheets (including the related notes and schedules) fairly presents the financial position of the Company and its Subsidiaries Citizens as of December 31 in its date, and each of the years 1995 through 1998, and the related audited consolidated statements of income, statements of shareholders' equity and of cash flow and changes flows included in Shareholders' equity of the Company and its Subsidiaries for the fiscal years then ended, together with the respective reports thereon of KPMG LLP. These audited financial statements of the Company were included or incorporated by reference in into the Meridian SEC Reports (collectively, including the footnotes thereto, the "SEC Financial Statements"), were prepared in accordance with GAAP (except as otherwise stated in the SEC Financial Statements or in the related reports of the Company's independent accountantsnotes and schedules) and present fairly the consolidated financial position of the Company and its subsidiaries as at the dates thereof, and presents the results of operations, changes in financial position and statements of Shareholdersshareholders' equity of the Company and its Subsidiaries for the periods indicated. No event has occurred since the Balance Sheet Date that would require a restatement of the SEC Financial Statements under GAAP other than by reason of a change in GAAP. The SEC Financial Statements reflect, and on the Closing Date will reflect, the interest of the Company in the assets, liabilities and operations of all Subsidiaries of the Company.
(c) Neither the Company nor any of its Subsidiaries has any material liability, obligation or commitment of any nature whatsoever (whether known or unknown due or to become due, accrued, fixed, contingent, liquidated, unliquidated or otherwise) other than liabilities, obligations or commitments (i) which are accrued or reserved against in the consolidated balance sheet of the Company and its consolidated subsidiaries as of December 31, 1999 included in the Audited Financial Statements or reflected in the notes thereto, (ii)(x) which arose in the ordinary course of business since such date and (y) which do not or would not individually or in the aggregate have a Material Adverse Effect, or (iii) which are of the type that would not be required to be reflected on a consolidated balance sheet of the Company and its Subsidiaries or in the notes thereto if such balance sheet were prepared in accordance with GAAP as of the date thereof or as of the Closing Datecash flows, as the case may be.
(d) Except as , of Meridian for the period set forth on Schedule 5.25(dtherein (subject, in the case of unaudited statements, to normal year-end audit adjustments which will not be material to Meridian in amount or effect), since the date of the Company's 1999 Proxy Statement to the date hereof, the Company has not entered into or otherwise become obligated with respect to any transactions which would require disclosure pursuant to Item 404 of Regulation S-K in each case in accordance with Items 7(b) generally accepted accounting principals consistently applied during the periods involved, except as may be noted therein. Other than the Meridian SEC Reports, Meridian has not filed any other definitive reports or (c) of Schedule 14A under statements with the Securities and Exchange Act were a Company proxy statement to be distributed as of the date hereofCommission since January 1, 1992.
Appears in 1 contract
Sources: Acquisition and Affiliation Agreement (Meridian Insurance Group Inc)
SEC Reports. (a) The Company has filed all required forms, reports and documents with the SEC since December 31, 1995 (collectively, the "SEC Reports"), except Notwithstanding that the Company will file a Notification of Late Filing on Form 126-25 notifying the SEC that its Form 10-K for its 1999 fiscal year could may not be filed within subject to the prescribed time period. Each of the SEC Reports has complied in all material respects with all applicable reporting requirements of the Securities Act and Section 13 or 15(d) of the Exchange Act, each so long as any Securities are outstanding, the Company shall furnish to the Trustee for delivery to the Holders, within the time periods specified in effect the SEC's rules and regulations (including any grace periods or extensions permitted by the SEC):
(1) all quarterly and financial information that would be required to be contained in a filing with the SEC on Forms 10-Q and 10-K if the Company were required to file these forms, including a "Management's Discussion and Analysis of Financial Condition and Results of Operations" (which will include a statement as to the amount of Consolidated Cash Flow for the applicable periods) and, with respect to the annual information only, a report on the dates so filedannual financial statements by the Company's certified independent accountants; and
(2) all current reports that would be required to be filed with the SEC on Form 8-K if the Company were required to file these reports. None At any time that Unrestricted Subsidiaries represent 5% or more of such formsthe total assets of the Company, reports or documentsthe quarterly and annual financial information required by the preceding sentence will include a reasonably detailed presentation, including, without limitation, any either on the face of the financial statements or schedules included or incorporated by reference thereinin the footnotes thereto, contained, when filed, any untrue statement of a material fact or omitted to state a material fact required to be stated or incorporated by reference 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 heretofore made available or promptly will make available to the Purchaser, a complete financial condition and correct copy results of any amendment to the SEC Reports. None of the Subsidiaries of the Company is required to file any reports, statements, forms or other documents with the SEC.
(b) The SEC Reports contain audited consolidated balance sheets operations of the Company and its Restricted Subsidiaries as separate from the financial condition and results of December 31 in each operations of the years 1995 through 1998, and the related audited consolidated statements of income, statements of cash flow and changes in Shareholders' equity of the Company and its Subsidiaries for the fiscal years then ended, together with the respective reports thereon of KPMG LLP. These audited financial statements of the Company were included or incorporated by reference in the SEC Reports (collectively, including the footnotes thereto, the "SEC Financial Statements"), were prepared in accordance with GAAP (except as otherwise stated in the SEC Financial Statements or in the related reports of the Company's independent accountants) and present fairly the consolidated financial position of the Company and its subsidiaries as at the dates thereof, and the results of operations, changes in financial position and statements of Shareholders' equity of the Company and its Subsidiaries for the periods indicated. No event has occurred since the Balance Sheet Date that would require a restatement of the SEC Financial Statements under GAAP other than by reason of a change in GAAP. The SEC Financial Statements reflect, and on the Closing Date will reflect, the interest of the Company in the assets, liabilities and operations of all Unrestricted Subsidiaries of the Company.
(c) Neither . In addition, whether or not required by the SEC, the Company nor any shall file a copy of its Subsidiaries has any material liability, obligation or commitment all of any nature whatsoever the information and reports referred to in clauses (whether known or unknown due or to become due, accrued, fixed, contingent, liquidated, unliquidated or otherwise1) other than liabilities, obligations or commitments and (i2) which are accrued or reserved against of the first sentence of this Section 4.02 with the SEC for public availability within the time periods specified in the consolidated balance sheet of SEC's rules and regulations (unless the SEC will not accept the filing) and make the information available to securities analysts and prospective investors upon request. The Company and the Subsidiary Guarantors agree that, for so long as any Securities remain outstanding, the Company shall furnish to the Holders and its consolidated subsidiaries as of December 31to securities analysts and prospective investors, 1999 included in upon their request, the Audited Financial Statements or reflected in the notes thereto, (ii)(x) which arose in the ordinary course of business since such date and (y) which do not or would not individually or in the aggregate have a Material Adverse Effect, or (iii) which are of the type that would not be information required to be reflected on a consolidated balance sheet of the Company and its Subsidiaries or in the notes thereto if such balance sheet were prepared in accordance with GAAP as of the date thereof or as of the Closing Date, as the case may be.
(d) Except as set forth on Schedule 5.25(d), since the date of the Company's 1999 Proxy Statement to the date hereof, the Company has not entered into or otherwise become obligated with respect to any transactions which would require disclosure delivered pursuant to Item 404 of Regulation S-K in accordance with Items 7(bRule 144A(d)(4) or (c) of Schedule 14A under the Exchange Act were a 42 Securities Act. The Company proxy statement to be distributed as also shall comply with the other provisions of the date hereofTIA ss. 314(a).
Appears in 1 contract
Sources: Indenture (Pathmark Stores Inc)
SEC Reports. (a) The Company has filed all required forms, reports and documents with the SEC since December 31, 1995 (collectively, the "SEC Reports"), except Notwithstanding that the Company will file a Notification of Late Filing on Form 126-25 notifying the SEC that its Form 10-K for its 1999 fiscal year could may not be filed within subject to the prescribed time period. Each of the SEC Reports has complied in all material respects with all applicable reporting requirements of the Securities Act and Section 13 or 15(d) of the Exchange Act, each the Company shall file with the SEC (to the extent the SEC will accept such filings) and provide the Trustee and Noteholders with such annual reports and such information, documents and other reports as are specified in effect Sections 13 and 15(d) of the Exchange Act and applicable to a U.S. corporation subject to such Sections, such information, documents and other reports to be so filed and provided at the times specified for the filings of such information, documents and reports under such Sections; provided, however, that so long as Parent is a Guarantor of the Notes and complies with the requirements of Rule 3-10 of Regulation S-X promulgated by the SEC (or any successor provision), the reports, information and other documents required to be filed and provided as described hereunder may, at the Company’s option, be filed by and be those of Parent rather than the Company. Additionally, the Company agrees that it shall not take any action for the purpose of causing the SEC not to accept any such filings. If, notwithstanding the foregoing, the SEC will not accept the Company’s filings for any reason, the Company shall post the reports, information and documents referred to in this paragraph on its website within the time periods that would apply if the Company were required to file those reports with the SEC. At any time that any of the Company’s Subsidiaries are Unrestricted Subsidiaries, then the quarterly and annual financial information required by the preceding paragraphs shall include a reasonably detailed presentation, either on the dates so filed. None face of such forms, reports or documents, including, without limitation, any the financial statements or schedules included or incorporated by reference thereinin the footnotes thereto, contained, when filed, any untrue statement and in “Management’s Discussion and Analysis of a material fact or omitted to state a material fact required to be stated or incorporated by reference therein or necessary in order to make the statements therein, in light Financial Condition and Results of the circumstances under which they were made, not misleading. The Company has heretofore made available or promptly will make available to the Purchaser, a complete and correct copy of any amendment to the SEC Reports. None of the Subsidiaries of the Company is required to file any reports, statements, forms or other documents with the SEC.
(b) The SEC Reports contain audited consolidated balance sheets Operations” of the Company and its Restricted Subsidiaries as separate from the financial condition and results of December 31 in each operations of the years 1995 through 1998, and the related audited consolidated statements of income, statements of cash flow and changes in Shareholders' equity of the Company and its Subsidiaries for the fiscal years then ended, together with the respective reports thereon of KPMG LLP. These audited financial statements of the Company were included or incorporated by reference in the SEC Reports (collectively, including the footnotes thereto, the "SEC Financial Statements"), were prepared in accordance with GAAP (except as otherwise stated in the SEC Financial Statements or in the related reports of the Company's independent accountants) and present fairly the consolidated financial position of the Company and its subsidiaries as at the dates thereof, and the results of operations, changes in financial position and statements of Shareholders' equity of the Company and its Subsidiaries for the periods indicated. No event has occurred since the Balance Sheet Date that would require a restatement of the SEC Financial Statements under GAAP other than by reason of a change in GAAP. The SEC Financial Statements reflect, and on the Closing Date will reflect, the interest of the Company in the assets, liabilities and operations of all Unrestricted Subsidiaries of the Company.
(c) Neither . In addition, the Company nor any of its Subsidiaries has any material liability, obligation or commitment of any nature whatsoever (whether known or unknown due or shall furnish to become due, accrued, fixed, contingent, liquidated, unliquidated or otherwise) other than liabilities, obligations or commitments (i) which are accrued or reserved against in the consolidated balance sheet Holders of the Company Notes and its consolidated subsidiaries as to prospective investors, upon the requests of December 31such Holders, 1999 included in the Audited Financial Statements or reflected in the notes thereto, (ii)(x) which arose in the ordinary course of business since such date and (y) which do not or would not individually or in the aggregate have a Material Adverse Effect, or (iii) which are of the type that would not be any information required to be reflected on a consolidated balance sheet of delivered pursuant to Rule 144A(d)(4) under the Company and its Subsidiaries or in the notes thereto if such balance sheet were prepared in accordance with GAAP as of the date thereof or as of the Closing Date, Securities Act so long as the case may be.
(d) Except as set forth on Schedule 5.25(d), since the date of the Company's 1999 Proxy Statement to the date hereof, the Company has Notes are not entered into or otherwise become obligated with respect to any transactions which would require disclosure pursuant to Item 404 of Regulation S-K in accordance with Items 7(b) or (c) of Schedule 14A freely transferable under the Exchange Act were a Company proxy statement to be distributed as of the date hereofSecurities Act.
Appears in 1 contract
Sources: Indenture (Reddy Ice Holdings Inc)
SEC Reports. (a) The Since September 28, 2015, the Company has filed or furnished (as applicable) SEC Reports at or prior to the time so required.
(b) Each SEC Report complied, as the case may be, as of its filing date, as to form in all required forms, reports and documents material respects with the SEC since December 31, 1995 (collectively, the "SEC Reports"), except that the Company will file a Notification of Late Filing on Form 126-25 notifying the SEC that its Form 10-K for its 1999 fiscal year could not be filed within the prescribed time period. Each applicable requirements of the SEC Reports has complied Securities Act or the Exchange Act, as the case may be, and in all material respects with all applicable requirements provisions of the Securities Act and the Exchange ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act, each as in effect on the dates so date such SEC Report was filed. None .
(c) As of its filing date (or, if amended or superseded by a filing prior to the date of this Agreement, on the date of such formsamended or superseded filing), reports or documents, including, without limitation, any financial statements or schedules included or incorporated by reference therein, contained, when filed, each SEC Report did not contain any untrue statement of a material fact or omitted omit to state a any material fact required to be stated or incorporated by reference therein or necessary in order to make the statements made therein, in the light of the circumstances under which they were made, not misleading. The Company has heretofore made available or promptly will make available to the Purchaser, a complete and correct copy of any amendment to the SEC Reports. None of the Subsidiaries of the Company is required to file any reports, statements, forms or other documents with the SEC.
(bd) The SEC Reports contain audited consolidated balance sheets of Since September 28, 2015, through the Company and its Subsidiaries as of December 31 in each of the years 1995 through 1998date hereof, and the related audited consolidated statements of income, statements of cash flow and changes in Shareholders' equity of the Company and its Subsidiaries for the fiscal years then ended, together with the respective reports thereon of KPMG LLP. These audited financial statements of the Company were included or incorporated by reference in the SEC Reports (collectively, including the footnotes thereto, the "SEC Financial Statements"), were prepared in accordance with GAAP (except as otherwise stated in the SEC Financial Statements or in the related reports of the Company's independent accountants) and present fairly the consolidated financial position of the Company and its subsidiaries as at the dates thereof, and the results of operations, changes in financial position and statements of Shareholders' equity of the Company and its Subsidiaries for the periods indicated. No event has occurred since the Balance Sheet Date that would require a restatement of the SEC Financial Statements under GAAP other than by reason of a change in GAAP. The SEC Financial Statements reflect, and on the Closing Date will reflect, the interest of the Company in the assets, liabilities and operations of all Subsidiaries of the Company.
(c) Neither neither the Company nor any of its Subsidiaries has received from the SEC or any material liability, obligation other Governmental Entity (i) any written comments that have not been resolved with respect to any of the SEC Reports (including the financial statements included therein) or commitment any registration statement filed by any of any nature whatsoever them with the SEC or (whether known or unknown due or to become due, accrued, fixed, contingent, liquidated, unliquidated or otherwiseii) other than liabilities, obligations or commitments (i) which are accrued or reserved against in the consolidated balance sheet case of written comments with respect to SEC Reports or registration statements that have been resolved, any written notice that such SEC Reports (including the financial statements included therein) or registration statements are being reviewed or investigated, and, to the Knowledge of the Company and its consolidated subsidiaries as of December 31Company, 1999 included in the Audited Financial Statements or reflected in the notes theretothere is not, (ii)(x) which arose in the ordinary course of business since such date and (y) which do not or would not individually or in the aggregate have a Material Adverse Effect, or (iii) which are of the type that would not be required to be reflected on a consolidated balance sheet of the Company and its Subsidiaries or in the notes thereto if such balance sheet were prepared in accordance with GAAP as of the date thereof of this Agreement, any investigation or as review being conducted by the SEC or any other Governmental Entity of any SEC Reports (including the Closing Date, as the case may befinancial statements included therein).
(de) Except as set forth on Schedule 5.25(d), since the date No Subsidiary of the Company's 1999 Proxy Statement Company is subject to the date hereof, reporting requirements of Section 13(a) or Section 15(d) of the Exchange Act.
(f) No executive officer of the Company has not entered into failed to make the certifications required of him or otherwise become obligated her under Section 302 or 906 of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act with respect to any transactions which would require disclosure pursuant to Item 404 SEC Report, except as disclosed in certifications filed with the SEC Reports, and at the time of Regulation Sfiling or submission of each such certification, such certification was true and accurate and complied with the ▇▇▇▇▇▇▇▇-K in accordance with Items 7(b) ▇▇▇▇▇ Act. Neither the Company nor any of its executive officers has received any written notice from any Governmental Entity challenging or (c) questioning the accuracy, completeness, form or manner of Schedule 14A under the Exchange Act were a Company proxy statement to be distributed as filing of the date hereofsuch certifications.
Appears in 1 contract
Sources: Merger Agreement (Microsemi Corp)
SEC Reports. (a) The Company has filed all required forms, reports and documents with the SEC since December 31, 1995 (collectively, the "SEC Reports"), except Notwithstanding that the Company will file a Notification of Late Filing on Form 126-25 notifying the SEC that its Form 10-K for its 1999 fiscal year could not be filed within the prescribed time period. Each of the SEC Reports has complied in all material respects with all applicable requirements of the Securities Act and the Exchange Act, each as in effect on the dates so filed. None of such forms, reports or documents, including, without limitation, any financial statements or schedules included or incorporated by reference therein, contained, when filed, any untrue statement of a material fact or omitted to state a material fact required to be stated or incorporated by reference 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 heretofore made available or promptly will make available to the Purchaser, a complete and correct copy of any amendment to the SEC Reports. None of the Subsidiaries of the Company is required to file any reports, statements, forms or other documents with the SEC.
(b) The SEC Reports contain audited consolidated balance sheets of the Company and its Subsidiaries as of December 31 in each of the years 1995 through 1998, and the related audited consolidated statements of income, statements of cash flow and changes in Shareholders' equity of the Company and its Subsidiaries for the fiscal years then ended, together with the respective reports thereon of KPMG LLP. These audited financial statements of the Company were included or incorporated by reference in the SEC Reports (collectively, including the footnotes thereto, the "SEC Financial Statements"), were prepared in accordance with GAAP (except as otherwise stated in the SEC Financial Statements or in the related reports of the Company's independent accountants) and present fairly the consolidated financial position of the Company and its subsidiaries as at the dates thereof, and the results of operations, changes in financial position and statements of Shareholders' equity of the Company and its Subsidiaries for the periods indicated. No event has occurred since the Balance Sheet Date that would require a restatement of the SEC Financial Statements under GAAP other than by reason of a change in GAAP. The SEC Financial Statements reflect, and on the Closing Date will reflect, the interest of the Company in the assets, liabilities and operations of all Subsidiaries of the Company.
(c) Neither the Company nor any of its Subsidiaries has any material liability, obligation or commitment of any nature whatsoever (whether known or unknown due or to become due, accrued, fixed, contingent, liquidated, unliquidated or otherwise) other than liabilities, obligations or commitments (i) which are accrued or reserved against in the consolidated balance sheet of the Company and its consolidated subsidiaries as of December 31, 1999 included in the Audited Financial Statements or reflected in the notes thereto, (ii)(x) which arose in the ordinary course of business since such date and (y) which do not or would not individually or in the aggregate have a Material Adverse Effect, or (iii) which are of the type that would may not be required to be reflected on a consolidated balance sheet or remain subject to the reporting requirements of Section 13(a) or 15(d) of the Company Exchange Act, from and its Subsidiaries or in after the notes thereto if such balance sheet were prepared in accordance with GAAP as of the date thereof or as of the Closing Issue Date, as the case may be.
(d) Except as set forth on Schedule 5.25(d), since the date of the Company's 1999 Proxy Statement to the date hereof, the Company has shall file with the SEC (unless such filing is not entered into or otherwise become obligated with respect to any transactions which would require disclosure pursuant to Item 404 of Regulation S-K in accordance with Items 7(b) or (c) of Schedule 14A permitted under the Exchange Act or by the SEC), so long as Notes are outstanding, the annual reports, quarterly reports and other documents which the Company would have been required to file with the SEC pursuant to the reporting requirements of such Section 13(a) or 15(d) if the Company were a Company proxy statement so subject, such documents to be distributed filed with the SEC on or prior to the respective dates by which the Company would have been required so to file such documents if the Company were so subject; provided that if the Company is a "foreign private issuer" (as such term is defined in Rule 3b-4 under the Exchange Act) the Company will file with the SEC (unless such filing is not permitted under the Exchange Act or by the SEC) the following reports by the dates indicated in satisfaction of the foregoing obligation to file reports and other documents: (i) within 120 days from the end of each fiscal year, an annual report on Form 20-F (or any successor form) containing the information required to be contained therein for such fiscal year, and (ii) within 60 days after the end of each of the first three quarters in each fiscal year, quarterly reports on Form 6-K containing unaudited financial statements (including a balance sheet and statement of income, changes in stockholders' equity and cash flows) and Management's Discussion and Analysis of Financial Condition and Results of Operations for and as of the end of such quarters (with comparable financial statements for such quarter of the immediately preceding fiscal year). The Company will also, within 15 days after the date hereofon which the Company files such reports, transmit by mail to all Holders, as their names and addresses appear in the Note Register, and to the Trustee copies of any such information, documents and reports (without exhibits) (or, in lieu of one or more of the quarterly reports for fiscal 2003, a registration statement filed with the SEC under the Securities Act or any amendment thereto, provided such registration statement or amendment contains the information that would have been included in each such report). The Company will be deemed to have satisfied such requirements if a Parent files and provides reports, documents and information of the types otherwise so required to be filed by the Company, or of the types required to be filed by a U.S. issuer with the SEC pursuant to Section 13(a) or 15(d) of the Exchange Act, in each case within the applicable time periods, and the Company is not required to file such reports, documents and information separately under the applicable rules and regulations of the SEC (after giving effect to any exemptive relief) because of the filings by such Parent. The Company (and, to the extent required under the TIA, any other obligor upon the Notes) also shall comply with the other provisions of TIA Section 314(a).
Appears in 1 contract
Sources: Indenture (Dirsamex Sa De Cv)
SEC Reports. (a) The Company has filed all required forms, reports and documents registration statements with the SEC since December 31, 1995 2000 (collectively, the "Company SEC Reports"), except that all of which were prepared in all material respects in accordance with the applicable requirements of the Exchange Act, the Securities Act and the rules and regulations promulgated thereunder (the "Securities Laws"). As of their respective dates, the Company will file a Notification of Late Filing on Form 126-25 notifying the SEC that its Form 10-K for its 1999 fiscal year could not be filed within the prescribed time period. Each of the SEC Reports has (i) complied as to form in all material respects with all the applicable requirements of the Securities Act Laws and the Exchange Act, each as in effect on the dates so filed. None of such forms, reports or documents, including, without limitation, any financial statements or schedules included or incorporated by reference therein, contained, when filed, (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 the light of the circumstances under which they were made, not misleading. The Company has heretofore made available or promptly will make available to the Purchaser, a complete and correct copy of any amendment to the SEC Reports. None Each of the Subsidiaries of the Company is required to file any reports, statements, forms or other documents with the SEC.
(b) The SEC Reports contain audited consolidated balance sheets of the Company and its Subsidiaries as of December 31 included in each of the years 1995 through 1998, and the related audited consolidated statements of income, statements of cash flow and changes in Shareholders' equity of the Company and its Subsidiaries for the fiscal years then ended, together with the respective reports thereon of KPMG LLP. These audited financial statements of the Company were included or incorporated by reference in into the Company SEC Reports (collectively, including the footnotes thereto, the "SEC Financial Statements"), were prepared related notes and schedules) fairly presents in accordance with GAAP (except as otherwise stated in the SEC Financial Statements or in the related reports of the Company's independent accountants) and present fairly all material respects the consolidated financial position of the Company and the Company Subsidiaries as of its subsidiaries as at date and each of the dates thereofconsolidated statements of income, retained earnings and cash flows of the Company included in or incorporated by reference into the Company SEC Reports (including any related notes and schedules) fairly presents in all material respects the results of operations, changes in financial position and statements of Shareholders' equity retained earnings or cash flows, as the case may be, of the Company and its the Company Subsidiaries for the periods indicatedset forth therein, in each case in accordance with GAAP consistently applied during the periods involved, except as may be noted therein and except, in the case of the unaudited statements, as permitted by Form 10-Q pursuant to Sections 13 or 15(d) of the Exchange Act and normal year-end audit adjustments which would not be material in amount or effect. No event has occurred since Company Subsidiary is required to file any form or report with the Balance Sheet Date that would require a restatement SEC or any state securities authority. The certificates of the SEC Chief Executive Officer and Chief Financial Statements under GAAP other than by reason of a change in GAAP. The SEC Financial Statements reflect, and on the Closing Date will reflect, the interest Officer of the Company in the assets, liabilities required by Rules 13a-14 and operations of all Subsidiaries 15d-14 of the CompanyExchange Act or 18 U.S.C. ss.1350 (Section 906 of SOX) with respect to the Company SEC Reports, as applicable, are true and correct as of the date of this Agreement as they relate to a particular Company SEC Report, as though made as of the date of this Agreement. The Company has established and maintains disclosure controls and procedures, has conducted the procedures in accordance with their terms and has otherwise operated in compliance with the requirements under Rules 13a-15 and 15d-15 of the Exchange Act.
(cb) Neither Except as and to the Company nor any of its Subsidiaries has any material liability, obligation or commitment of any nature whatsoever (whether known or unknown due or to become due, accrued, fixed, contingent, liquidated, unliquidated or otherwise) other than liabilities, obligations or commitments (i) which are accrued or reserved against in extent set forth on the consolidated balance sheet of the Company and its consolidated subsidiaries the Company Subsidiaries as of December 31, 1999 included 2003, including all notes thereto (the "Company Balance Sheet"), and except as set forth in Section 5.7(b) of the Audited Financial Statements Company Disclosure Schedule, neither the Company nor any Company Subsidiary has any liabilities or obligations of any nature (whether accrued, absolute, contingent, or otherwise) that would be required to be reflected on a balance sheet, or in the notes thereto, prepared in accordance with GAAP, except (ii)(xi) which arose the obligation to pay any transfer fee necessary to transfer and assign the Company licenses listed on Section 7.3 of the Company Disclosure Schedule, (ii) the obligations to pay fees and expenses to the Company's attorneys, accountants and the Company's financial advisor relating to the transactions contemplated by this Agreement and other expenses incurred in connection with the Company's exploration of strategic alternatives, (iii) for liabilities or obligations incurred in the ordinary course of business since such date and (y) which do not or would not December 31, 2003, that, individually or in the aggregate aggregate, would not have a Company Material Adverse Effect, or (iiiiv) which are of the type that would not be required to be as otherwise reflected on a consolidated balance sheet of in the Company and its Subsidiaries or in the notes thereto if such balance sheet were prepared in accordance with GAAP as of the date thereof or as of the Closing Date, as the case may be.
(d) Except as set forth on Schedule 5.25(d), since SEC Reports filed prior to the date of the Company's 1999 Proxy Statement to the date hereof, the Company has not entered into or otherwise become obligated with respect to any transactions which would require disclosure pursuant to Item 404 of Regulation S-K in accordance with Items 7(b) or (c) of Schedule 14A under the Exchange Act were a Company proxy statement to be distributed as of the date hereofthis Agreement.
Appears in 1 contract
Sources: Merger Agreement (First Years Inc)
SEC Reports. (a) The Company has filed all required reports, schedules, forms, reports statements and other documents required to be filed by the Company under the Exchange Act, including pursuant to Section 13(a) or 15(d) thereof, for the two years preceding the date hereof (the foregoing materials, including the exhibits thereto and documents with incorporated by reference therein, being collectively referred to herein as the SEC since December 31, 1995 (collectively, the "“SEC Reports")”) on a timely basis or has received a valid extension of such time of filing and has filed any such SEC Reports prior to the expiration of any such extension. As of their respective dates, except that the Company will file a Notification of Late Filing on Form 126-25 notifying the SEC that its Form 10-K for its 1999 fiscal year could not be filed within the prescribed time period. Each of the SEC Reports has complied in all material respects with all applicable the requirements of the Securities Act and the Exchange Act, each as in effect on applicable, and none of the dates so filed. None of such forms, reports or documents, including, without limitation, any financial statements or schedules included or incorporated by reference therein, containedSEC Reports, when filed, contained any untrue statement of a material fact or omitted to state a material fact required to be stated or incorporated by reference therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. The Company has heretofore made available or promptly will make available to the Purchaser, a complete and correct copy of any amendment to the SEC Reports. None of the Subsidiaries of the Company is required to file any reports, statements, forms or other documents with the SEC.
(b) The SEC Reports contain audited consolidated balance sheets of the Company and its Subsidiaries as of December 31 in each of the years 1995 through 1998, and the related audited consolidated statements of income, statements of cash flow and changes in Shareholders' equity of the Company and its Subsidiaries for the fiscal years then ended, together with the respective reports thereon of KPMG LLP. These audited financial statements of the Company were included or incorporated by reference in the SEC Reports (collectively, including comply in all material respects with applicable accounting requirements and the footnotes thereto, rules and regulations of the "SEC Financial Statements"), were Commission with respect thereto as in effect at the time of filing. Such financial statements have been prepared in accordance with GAAP United States generally accepted accounting principles applied on a consistent basis during the periods involved (“GAAP”), except as may be otherwise stated specified in such financial statements or the SEC Financial Statements or notes thereto and except to the extent that unaudited financial statements may not contain all footnotes required by GAAP, and such statements fairly present in all material respects the related reports of the Company's independent accountants) and present fairly the consolidated financial position of the Company and its subsidiaries as at the dates thereof, and the results of operations, changes in financial position and statements of Shareholders' equity of the Company and its Subsidiaries for the periods indicated. No event has occurred since the Balance Sheet Date that would require a restatement of the SEC Financial Statements under GAAP other than by reason of a change in GAAP. The SEC Financial Statements reflect, and on the Closing Date will reflect, the interest of the Company in the assets, liabilities and operations of all Subsidiaries of the Company.
(c) Neither the Company nor any of its Subsidiaries has any material liability, obligation or commitment of any nature whatsoever (whether known or unknown due or to become due, accrued, fixed, contingent, liquidated, unliquidated or otherwise) other than liabilities, obligations or commitments (i) which are accrued or reserved against in the consolidated balance sheet of the Company and its consolidated subsidiaries as of December 31and for the dates thereof and the results of operations and cash flows for the periods then ended, 1999 included subject, in the Audited Financial Statements or reflected case of unaudited statements, to normal, immaterial, year-end audit adjustments. The Company’s independent registered public accounting firm is identified in the notes theretoAnnual Report on Form 10-K for the fiscal year ended September 30, 2011 (ii)(x) which arose in the ordinary course of business since such date and (y) which do not or would not individually or in the aggregate have a Material Adverse Effect, or (iii) which are of the type that would not be required to be reflected on a consolidated balance sheet of the Company and its Subsidiaries or in the notes thereto if such balance sheet were prepared in accordance with GAAP as of the date thereof or as of the Closing Date, as the case may be.
(d) Except as set forth on Schedule 5.25(d“2011 Form 10-K”), since the date of the Company's 1999 Proxy Statement to the date hereof, the Company has not entered into or otherwise become obligated with respect to any transactions which would require disclosure pursuant to Item 404 of Regulation S-K in accordance with Items 7(b) or (c) of Schedule 14A under and such accounting firm is a registered public accounting firm as required by the Exchange Act were a Company proxy statement to be distributed as of the date hereofAct.
Appears in 1 contract
Sources: Securities Purchase Agreement (Aeolus Pharmaceuticals, Inc.)
SEC Reports. (ai) The Company has As of their respective dates, each report, information statement and proxy statement filed by Purchaser with the U.S. Securities and Exchange Commission (the “SEC”) since January 17, 2013, which are all required the forms, reports and documents required to be filed by Purchaser and its subsidiaries with the SEC since December 31January 17, 1995 2013 (collectively, the "“Purchaser SEC Reports"), except that the Company will file a Notification of Late Filing on Form 126-25 notifying the SEC that its Form 10-K for its 1999 fiscal year could not be filed within the prescribed time period. Each of the SEC Reports has ”): (A) was prepared in accordance and complied in all material respects with all applicable the requirements of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), and the Exchange Actrules and regulations of the SEC thereunder applicable to such Purchaser SEC Reports, each as in effect and (B) did not at the time it was filed (and if amended or superseded by a filing prior to the date of this Agreement then on the dates so filed. None date of such forms, reports filing and as so amended or documents, including, without limitation, any financial statements or schedules included or incorporated by reference therein, contained, when filed, superseded) 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 therein, in light of the circumstances under which they were made, not misleading. The Company has heretofore made available or promptly will make available to the Purchaser, a complete and correct copy of any amendment to the SEC Reports. None of the Subsidiaries of the Company is required to file any reports, statements, forms or other documents with the SEC.
(bii) The SEC Reports contain audited consolidated balance sheets Each set of the Company and its Subsidiaries as of December 31 financial statements (including, in each of the years 1995 through 1998case, and the any related audited consolidated statements of income, statements of cash flow and changes in Shareholders' equity of the Company and its Subsidiaries for the fiscal years then ended, together with the respective reports thereon of KPMG LLP. These audited financial statements of the Company were included or incorporated by reference notes thereto) contained in the Purchaser SEC Reports (collectivelyReports, including each Purchaser SEC Report filed after the footnotes theretodate hereof until the Closing, the "SEC Financial Statements"), were was or will be prepared in accordance with GAAP and in a manner consistent throughout the periods involved (except as otherwise stated may be indicated in the SEC Financial Statements or notes thereto or, in the related reports case of unaudited financial statements, subject to the absence of footnotes as permitted by the applicable rules and regulations of the Company's independent accountantsSEC) and each fairly presents or will fairly present fairly in all material respects the consolidated financial position of the Company and its subsidiaries as Purchaser at the respective dates thereof, thereof and the results of operations, changes in financial position its operations and statements of Shareholders' equity of the Company and its Subsidiaries cash flows for the periods indicated. No event has occurred since , except that the Balance Sheet Date that would require a restatement of the SEC Financial Statements under GAAP other than by reason of a change in GAAP. The SEC Financial Statements reflectunaudited interim financial statements, and on the Closing Date are or will reflect, the interest of the Company in the assets, liabilities and operations of all Subsidiaries of the Company.
(c) Neither the Company nor any of its Subsidiaries has any material liability, obligation or commitment of any nature whatsoever (whether known or unknown due or be subject to become due, accrued, fixed, contingent, liquidated, unliquidated or otherwise) other than liabilities, obligations or commitments (i) normal adjustments which are accrued or reserved against in the consolidated balance sheet of the Company and its consolidated subsidiaries as of December 31, 1999 included in the Audited Financial Statements or reflected in the notes thereto, (ii)(x) which arose in the ordinary course of business since such date and (y) which do not or would not individually or in the aggregate expected to have a Material Adverse Effect, or Effect on Purchaser.
(iii) which are Purchaser has been and is in compliance in all material respects with the applicable provisions of the type ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act. Purchaser 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. Purchaser’s disclosure controls and procedures are reasonably designed to ensure that would not be all material information required to be reflected on a consolidated balance sheet of the Company and its Subsidiaries or disclosed by Purchaser in the notes thereto if such balance sheet were prepared in accordance with GAAP as of the date thereof or as of the Closing Date, as the case may be.
(d) Except as set forth on Schedule 5.25(d), since the date of the Company's 1999 Proxy Statement to the date hereof, the Company has not entered into or otherwise become obligated with respect to any transactions which would require disclosure pursuant to Item 404 of Regulation S-K in accordance with Items 7(b) or (c) of Schedule 14A reports that it files under the Exchange Act were a Company proxy statement to be distributed as are recorded, processed, summarized and reported within the time periods specified in the rules and forms of the date hereof.SEC, and that all such material information is accumulated and communicated to the management of Purchaser as appropriate to allow timely decisions regarding required disclosure and to make the certifications required pursuant to Sections 302 and 906 of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act. Purchaser has disclosed, based on its most recent evaluations, to Purchaser’s accountants and the board of directors of Purchaser (A) all significant deficiencies in the design or operation of its internal control over financial reporting (as defined in Rule 13a-15(f) of the Exchange Act) and any material weaknesses that have more than a remote chance to materially adversely affect Purchaser’s ability to record, process, summarize and report financial data and (B) any fraud, whether or not material, that involves management or other employees who have a significant role in Purchaser’s internal control over financial reporting;
Appears in 1 contract
Sources: Asset Purchase Agreement (Twentyfour/Seven Ventures, Inc.)
SEC Reports. (a) The Since the Reference Date, the Company has filed or furnished (as applicable) all required forms, reports reports, schedules, statements and documents with the SEC since December 31that have been required to be so filed or furnished (as applicable) by it under Applicable Law at or prior to the time so required, 1995 (collectivelyand, after the "SEC Reports")date of this Agreement and until the Effective Time, except that the Company will file a Notification of Late Filing on Form 126-25 notifying all forms, reports, schedules, statements and documents with the SEC that its Form 10-K for its 1999 fiscal year could not are required to be filed within by it under Applicable Law at or prior to the prescribed time period. Each so required (all such forms, reports, schedules, statements and documents, as the same may have been amended since the date of their filing, the “SEC Reports has complied Reports”).
(b) Except to the extent updated, amended, restated or corrected by a subsequent SEC Report prior to the date hereof, each SEC Report complied, or will comply, as the case may be, as of its filing date, as to form in all material respects with all the applicable requirements of the Securities Act and or the Exchange Act, as the case may be, and with all applicable provisions of the S▇▇▇▇▇▇▇-▇▇▇▇▇ Act, each as in effect on the dates so date such SEC Report was, or will be, filed. None of such forms, reports or documents, including, without limitation, any financial statements or schedules included or incorporated by reference therein, contained, when filed, any untrue statement of a material fact or omitted to state a material fact required to be stated or incorporated by reference 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 heretofore made available or promptly will make available to the Purchaser, a complete and correct copy of any amendment to the SEC Reports. None of the Subsidiaries of the Company is required to file any reports, statements, forms or other documents with the SEC.
(b) The SEC Reports contain audited consolidated balance sheets of the Company and its Subsidiaries as of December 31 in each of the years 1995 through 1998, and the related audited consolidated statements of income, statements of cash flow and changes in Shareholders' equity of the Company and its Subsidiaries for the fiscal years then ended, together with the respective reports thereon of KPMG LLP. These audited financial statements of the Company were included or incorporated by reference in the SEC Reports (collectively, including the footnotes thereto, the "SEC Financial Statements"), were prepared in accordance with GAAP (except as otherwise stated in the SEC Financial Statements or in the related reports of the Company's independent accountants) and present fairly the consolidated financial position of the Company and its subsidiaries as at the dates thereof, and the results of operations, changes in financial position and statements of Shareholders' equity of the Company and its Subsidiaries for the periods indicated. No event has occurred since the Balance Sheet Date that would require a restatement of the SEC Financial Statements under GAAP other than by reason of a change in GAAP. The SEC Financial Statements reflect, and on the Closing Date will reflect, the interest of the Company in the assets, liabilities and operations of all Subsidiaries of the Company.
(c) Neither the Company nor any of its Subsidiaries has received from the SEC or any material liabilityother Governmental Authority any written comments or questions with respect to any of the SEC Reports (including the financial statements included therein) or any registration statement filed by any of them with the SEC since the Reference Date or any notice from the SEC or other Governmental Authority that such SEC Reports (including the financial statements included therein) or registration statements are being reviewed or investigated, obligation and, to the knowledge of the Company, there is not, any investigation or commitment review being conducted by the SEC or any other Governmental Authority of any nature whatsoever SEC Reports (whether known or unknown due or to become due, accrued, fixed, contingent, liquidated, unliquidated or otherwise) other than liabilities, obligations or commitments (i) which are accrued or reserved against in including the consolidated balance sheet of the Company and its consolidated subsidiaries as of December 31, 1999 financial statements included in the Audited Financial Statements or reflected in the notes thereto, (ii)(x) which arose in the ordinary course of business since such date and (y) which do not or would not individually or in the aggregate have a Material Adverse Effect, or (iii) which are of the type that would not be required to be reflected on a consolidated balance sheet of the Company and its Subsidiaries or in the notes thereto if such balance sheet were prepared in accordance with GAAP as therein). As of the date thereof of this Agreement, there are no outstanding or as of unresolved comments in comment letters received from the Closing Date, as SEC with respect to the case may beSEC Reports.
(d) Except as set forth on Schedule 5.25(d), since the date None of the Company's 1999 Proxy Statement ’s Subsidiaries is required to file any forms, reports, schedules, statements or other documents with the date hereof, SEC.
(e) No executive officer of the Company has not entered into failed to make the certifications required of him or otherwise become obligated her under Section 302 or 906 of the S▇▇▇▇▇▇▇-▇▇▇▇▇ Act with respect to any transactions which would require disclosure pursuant to Item 404 SEC Report, except as disclosed in certifications filed with the SEC Reports, and at the time of Regulation filing or submission of each such certification, such certification was true and accurate and complied with the S▇▇▇▇▇▇▇-K in accordance with Items 7(b) ▇▇▇▇▇ Act. Neither the Company nor any of its executive officers has received written notice from any Governmental Authority challenging or (c) questioning the accuracy, completeness, form or manner of Schedule 14A under the Exchange Act were a Company proxy statement to be distributed as filing of the date hereofsuch certifications.
Appears in 1 contract
SEC Reports. (a) The Company has filed all required formson December 30, 2003 with the Commission a Prospectus pursuant to Rule 424(b)(3) under the Securities Act relating to Registration Statement No. 333-107178 (the "Prospectus") and files reports and documents other information (together with the SEC since December 31Prospectus, 1995 (collectively, the "SEC Reports") with the Commission pursuant to Section 13 and 15(d) of the Securities Act of 1934, as amended (the "Exchange Act"), except that the Company will file a Notification of Late Filing on Form 126-25 notifying the SEC that its Form 10-K for its 1999 fiscal year could not be filed within the prescribed time period. Each All of the SEC Reports has complied filed by the Company comply in all material respects with all applicable the requirements of the Securities Exchange Act and or the Exchange ActSecurities, each as in effect on the dates so filedcase may be. None of such formsthe SEC Reports contains, reports or documentswill contain, including, without limitation, any financial statements or schedules included or incorporated by reference therein, contained, when filedas of the respective dates thereof, any untrue statement of a material fact or omitted omit to state a any material fact required to be stated or incorporated by reference therein or necessary in order to make the statements therein not misleading in light of the circumstances under which they were made. All financial statements contained in the SEC Reports have been prepared in accordance with generally accepted accounting principles consistently applied throughout the period indicated ("GAAP"). Each balance sheet presents fairly in accordance with GAAP the financial position of the Company as of the date of such balance sheet, and each statement of operations, of stockholders' equity and of cash flows presents fairly in accordance with GAAP the results of operations, the stockholders' equity and the cash flows of the Company for the periods then ended.
(b) No event has occurred since December 31, 2002 requiring the filing of an SEC Report that has not heretofore been filed.
(c) The SEC Reports and this Agreement taken together as a whole will not, as of each Closing Date, 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 contained therein, in light of the circumstances under which they were made, not misleading. The Company has heretofore made available or promptly will make available to the Purchaser, a complete and correct copy of any amendment to the SEC Reports. None of the Subsidiaries of the Company is required to file any reports, statements, forms or other documents with the SEC.
(b) The SEC Reports contain audited consolidated balance sheets of the Company and its Subsidiaries as of December 31 in each of the years 1995 through 1998, and the related audited consolidated statements of income, statements of cash flow and changes in Shareholders' equity of the Company and its Subsidiaries for the fiscal years then ended, together with the respective reports thereon of KPMG LLP. These audited financial statements of the Company were included or incorporated by reference in the SEC Reports (collectively, including the footnotes thereto, the "SEC Financial Statements"), were prepared in accordance with GAAP (except as otherwise stated in the SEC Financial Statements or in the related reports of the Company's independent accountants) and present fairly the consolidated financial position of the Company and its subsidiaries as at the dates thereof, and the results of operations, changes in financial position and statements of Shareholders' equity of the Company and its Subsidiaries for the periods indicated. No event has occurred since the Balance Sheet Date that would require a restatement of the SEC Financial Statements under GAAP other than by reason of a change in GAAP. The SEC Financial Statements reflect, and on the Closing Date will reflect, the interest of the Company in the assets, liabilities and operations of all Subsidiaries of the Company.
(c) Neither the Company nor any of its Subsidiaries has any material liability, obligation or commitment of any nature whatsoever (whether known or unknown due or to become due, accrued, fixed, contingent, liquidated, unliquidated or otherwise) other than liabilities, obligations or commitments (i) which are accrued or reserved against in the consolidated balance sheet of the Company and its consolidated subsidiaries as of December 31, 1999 included in the Audited Financial Statements or reflected in the notes thereto, (ii)(x) which arose in the ordinary course of business since such date and (y) which do not or would not individually or in the aggregate have a Material Adverse Effect, or (iii) which are of the type that would not be required to be reflected on a consolidated balance sheet of the Company and its Subsidiaries or in the notes thereto if such balance sheet were prepared in accordance with GAAP as of the date thereof or as of the Closing Date, as the case may be.
(d) Except as set forth on Schedule 5.25(d), since the date of the Company's 1999 Proxy Statement to the date hereof, the Company has not entered into or otherwise become obligated with respect to any transactions which would require disclosure pursuant to Item 404 of Regulation S-K in accordance with Items 7(b) or (c) of Schedule 14A under the Exchange Act were a Company proxy statement to be distributed as of the date hereof.
Appears in 1 contract
Sources: Securities Purchase Agreement (Advanced Viral Research Corp)
SEC Reports. (a) The Company has furnished the Purchasers with true and complete copies (including all amendments thereof) of its (i) Annual Reports on Form 20-F for the fiscal years ended December 31, 1997 and 1998 as filed with the SEC, (ii) all required formsother documents filed with the SEC (pursuant to Section 13, reports 14(a) and documents 15(d) of the Exchange Act) and the Canadian securities regulatory authorities since January 1, 1996 and (iii) all registration statements filed with the SEC since December 31January 1, 1995 1996, which are all the documents (collectively, other than preliminary material) that the Company filed or was required to file with the SEC or the Canadian securities regulatory authorities from that date through the date hereof (clauses (i) through (iii) being referred to herein collectively as the "SEC ReportsREPORTS"). Except to the extent they may have been subsequently amended or otherwise modified prior to the date hereof by subsequent reporting or filings, except that the Company will file a Notification as of Late Filing on Form 126-25 notifying the SEC that its Form 10-K for its 1999 fiscal year could not be filed within the prescribed time period. Each of their respective dates, the SEC Reports has (as the same may have been amended or otherwise modified) complied in all material respects with all applicable the requirements of the Securities Act or the Exchange Act and the Exchange Actrules and regulations of the SEC thereunder applicable to such reports and registration statements. Except to the extent they may have been subsequently amended or otherwise modified prior to the date hereof by subsequent reporting or filings, each as in effect on of their respective dates, the dates so filed. None of such forms, reports or documents, including, without limitation, any financial statements or schedules included or incorporated by reference therein, contained, when filed, SEC Reports 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 therein, in light of the circumstances under which they were made, not misleading. The Company has heretofore made available or promptly will make available to the Purchaser, a complete and correct copy of any amendment to the SEC Reports. None of the Subsidiaries of the Company is required to file any reports, statements, forms or other documents with the SEC.
(b) The From the date hereof through the Closing Date, the Company will promptly furnish to the Purchasers upon their being filed copies of any documents filed by the Company with the SEC or the Canadian securities regulatory authorities (the "INTERIM SEC REPORTS"). As of their respective dates, the Interim SEC Reports will comply 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 thereunder applicable to such reports and registration statements. As of their respective dates, the Interim SEC Reports will not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading.
(c) The audited consolidated balance sheets financial statements as at and for the period ended December 31, 1998 of the Company and its Subsidiaries as of December 31 in each of the years 1995 through 1998, and the related audited consolidated statements of income, statements of cash flow and changes in Shareholders' equity of the Company and its Subsidiaries for the fiscal years then ended, together with the respective reports thereon of KPMG LLP. These audited financial statements of the Company were included or incorporated by reference in the SEC Reports (collectively, including the footnotes thereto, the "1998 FINANCIAL STATEMENTS") comply as to form in all material respects with accounting requirements of the Securities Act or the Exchange Act, as applicable, and with the published rules and regulations of the SEC with respect thereto. The 1998 Financial Statements"), were Statements (i) have been prepared in accordance with GAAP generally accepted accounting principles in the United States of America ("GAAP") applied on a consistent basis (except as otherwise stated in the SEC Financial Statements may be indicated therein or in the related reports of notes thereto), (ii) present fairly, in all material respects, the Company's independent accountants) and present fairly the consolidated financial position of the Company and its subsidiaries as at of the dates thereof, thereof and the results of operations, changes their operations and cash flows for the periods then ended and (iii) are in financial position all material respects in agreement with the books and statements of Shareholders' equity records of the Company and its Subsidiaries for the periods indicated. No event has occurred since the Balance Sheet Date that would require a restatement of the SEC Financial Statements under GAAP other than by reason of a change in GAAP. The SEC Financial Statements reflect, and on the Closing Date will reflect, the interest of the Company in the assets, liabilities and operations of all Subsidiaries of the Company.
(c) Neither the Company nor any of its Subsidiaries has any material liability, obligation or commitment of any nature whatsoever (whether known or unknown due or to become due, accrued, fixed, contingent, liquidated, unliquidated or otherwise) other than liabilities, obligations or commitments (i) which are accrued or reserved against in the consolidated balance sheet of the Company and its consolidated subsidiaries as of December 31, 1999 included in the Audited Financial Statements or reflected in the notes thereto, (ii)(x) which arose in the ordinary course of business since such date and (y) which do not or would not individually or in the aggregate have a Material Adverse Effect, or (iii) which are of the type that would not be required to be reflected on a consolidated balance sheet of the Company and its Subsidiaries or in the notes thereto if such balance sheet were prepared in accordance with GAAP as of the date thereof or as of the Closing Date, as the case may besubsidiaries.
(d) Except as set forth otherwise disclosed in a Form 6-K filed by the Company on Schedule 5.25(dJuly 7, 1999, the unaudited interim financial statements of the Company as at and for all periods commencing on or after January 1, 1999 included in the SEC Reports or the Interim SEC Reports comply, or in the case of the Interim SEC Reports will comply, as to form in all material respects with accounting requirements of the Securities Act or the Exchange Act, as applicable, and with the published rules and regulations of the SEC with respect thereto. Except as otherwise disclosed in a Form 6-K filed by the Company on July 7, 1999, the condensed financial statements included in the SEC Reports or in the Interim SEC Reports: (i) have been, or in the case of the Interim SEC Reports will be, prepared in accordance with GAAP applied on a consistent basis (except as may be indicated therein or in the notes thereto), since (ii) present or will present fairly, in all material respects, the date financial position of the Company and its subsidiaries as of the dates thereof and the results of their operations and cash flows for the periods then ended subject to normal year-end audit adjustments and any other adjustments described therein and the fact that certain information and notes have been condensed or omitted in accordance with the Exchange Act and the rules and regulations promulgated thereunder, and (iii) are, and will be, in all material respects in agreement with the books and records of the Company and its subsidiaries.
(e) The Company and its subsidiaries keep proper accounting records in which all material assets and liabilities, and all material transactions, of the Company and its subsidiaries are recorded in conformity with applicable accounting principles. No part of the Company's 1999 Proxy Statement to or any of its subsidiaries' accounting system or records, or access thereto, is under the date hereof, control of a Person who is not an employee of the Company has not entered into or otherwise become obligated such subsidiary.
(f) The Company, along with respect to any transactions which would require disclosure pursuant to Item 404 its subsidiaries, had less than $25,000,000 of Regulation S-K aggregate sales in accordance with Items 7(b) or (c) of Schedule 14A under the Exchange Act were a Company proxy statement to be distributed United States in the most recently completed fiscal year, and as of March 31, 1999 owned, either directly or indirectly, assets in the date hereofUnited States with an aggregate book value of less than $15,000,000.
Appears in 1 contract
Sources: Securities Purchase Agreement (Visible Genetics Inc)
SEC Reports. (a) The Company has filed all required reports, schedules, forms, reports statements and other documents required to be filed by it under the Exchange Act, including pursuant to Section l3(a) or 15(d) thereof, since January 1, 2010 (the foregoing materials, including the exhibits thereto and documents with incorporated by reference therein, being collectively referred to herein as the SEC since December 31, 1995 (collectively, the "“SEC Reports"”), except that on a timely basis or has received a valid extension of such time of filing and has filed any such SEC Reports prior to the Company will file a Notification expiration of Late Filing on Form 126-25 notifying the SEC that its Form 10-K for its 1999 fiscal year could not be filed within the prescribed time periodany such extension. Each As of their respective filing dates, the SEC Reports has complied in all material respects with all applicable the requirements of the Securities Act and the Exchange ActAct and the rules and regulations of the Commission promulgated thereunder, each as in effect on and none of the dates so filed. None of such forms, reports or documents, including, without limitation, any financial statements or schedules included or incorporated by reference therein, containedSEC Reports, when filed, contained any untrue statement of a material fact or omitted to state a material fact required to be stated or incorporated by reference therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading. On April 26, 2012, the Company filed an S-4 Registration Statement in connection with the proposed merger of KeySource Financial Inc. with and into the Company according to the terms of an Agreement and Plan of Merger dated December 21, 2011; such registration statement contains important information about the Company’s Common Stock and certain other material information about the Company. The Company has heretofore made available or promptly will make available advises any Purchaser to read such registration statement, in particular the Purchasersections entitled “Risk Factors,” “Description of BNC Capital Stock” and “Information about BNC.” On April 16, 2012, the Company filed a complete and correct copy of any Definitive Proxy Statement in connection with the proposed (i) amendment to the Company’s Articles of Incorporation to create a class of non-voting common stock; (ii) amendment to the Company’s Articles of Incorporation to amend the terms of the Company’s Mandatorily Convertible Non-voting Preferred Stock, Series B, and (iii) issuance of non-voting common stock to Aquiline; such Proxy Statement contains important information about the Company. The SEC Reports. None of , including the Subsidiaries of the Company is required to file any reports, statements, forms or other documents with the SEC.
(b) The SEC Reports contain audited consolidated balance sheets of the Company and its Subsidiaries as of December 31 in each of the years 1995 through 1998, and the related audited consolidated statements of income, statements of cash flow and changes in Shareholders' equity of the Company and its Subsidiaries for the fiscal years then ended, together with the respective reports thereon of KPMG LLP. These audited financial statements of the Company were included or incorporated by reference in the SEC Reports (collectivelyeach of them, including the footnotes thereto, the "SEC Financial Statements"), were prepared in accordance with GAAP (except as otherwise stated in the SEC Financial Statements or in the related reports each contained substantially all of the Company's independent accountants) and present fairly the consolidated financial position information required to be included in it. No executive officer of the Company and its subsidiaries as at has failed in any respect to make the dates thereof, and the results certifications required of operations, changes in financial position and statements of Shareholders' equity him or her under Section 302 or 906 of the Company and its Subsidiaries for the periods indicated. No event has occurred since the Balance Sheet Date that would require a restatement ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of the SEC Financial Statements under GAAP other than by reason of a change in GAAP. The SEC Financial Statements reflect, and on the Closing Date will reflect, the interest of the Company in the assets, liabilities and operations of all Subsidiaries of the Company2002.
(c) Neither the Company nor any of its Subsidiaries has any material liability, obligation or commitment of any nature whatsoever (whether known or unknown due or to become due, accrued, fixed, contingent, liquidated, unliquidated or otherwise) other than liabilities, obligations or commitments (i) which are accrued or reserved against in the consolidated balance sheet of the Company and its consolidated subsidiaries as of December 31, 1999 included in the Audited Financial Statements or reflected in the notes thereto, (ii)(x) which arose in the ordinary course of business since such date and (y) which do not or would not individually or in the aggregate have a Material Adverse Effect, or (iii) which are of the type that would not be required to be reflected on a consolidated balance sheet of the Company and its Subsidiaries or in the notes thereto if such balance sheet were prepared in accordance with GAAP as of the date thereof or as of the Closing Date, as the case may be.
(d) Except as set forth on Schedule 5.25(d), since the date of the Company's 1999 Proxy Statement to the date hereof, the Company has not entered into or otherwise become obligated with respect to any transactions which would require disclosure pursuant to Item 404 of Regulation S-K in accordance with Items 7(b) or (c) of Schedule 14A under the Exchange Act were a Company proxy statement to be distributed as of the date hereof.
Appears in 1 contract
SEC Reports. (a) The Company Parent has filed all required forms, reports and documents required to be filed by it with the SEC since December 31June 30, 1995 1994 and has heretofore made available to the Company, in the form filed with the SEC (collectively, the "SEC Reports"excluding any exhibits thereto), except that the Company will file a Notification of Late Filing (i) its Annual Report on Form 126-25 notifying the SEC that its Form 10-K for its 1999 the fiscal year could not be ended July 1, 1995, and (ii) all other forms, reports, registration statements and other documents filed within the prescribed time period. Each of by Parent with the SEC since July 1, 1995 (the forms, reports, registration statements and other documents referred to in clauses (i) and (ii) above being referred to herein, collectively, as the "Parent SEC Reports"). The Parent SEC Reports has complied and any other forms, reports and other documents filed by Parent with the SEC after the date of this Agreement (i) were or will be prepared in all material respects accordance with all applicable the requirements of the Securities Act and the Exchange Act, each as in effect on the dates so filed. None of such formscase may be, reports or documents, including, without limitation, any financial statements or schedules included or incorporated by reference therein, contained, when and the rules and regulations thereunder and (ii) did not at the time they were filed, or will not at the time they are filed, 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 the light of the circumstances under which they were or are made, not misleading. The Company has heretofore made available or promptly will make available to the Purchaser, a complete and correct copy of any amendment to the SEC Reports. None of the Subsidiaries of the Company is required to file any reports, statements, forms or other documents with the SEC.
(b) The Each of the consolidated financial statements (including, in each case, any notes thereto) contained in the Parent SEC Reports contain audited consolidated balance sheets of the Company and its Subsidiaries as of December 31 in each of the years 1995 through 1998, and the related audited consolidated statements of income, statements of cash flow and changes in Shareholders' equity of the Company and its Subsidiaries for the fiscal years then ended, together with the respective reports thereon of KPMG LLP. These audited financial statements of the Company were included or incorporated by reference in the SEC Reports (collectively, including the footnotes thereto, the "SEC Financial Statements"), were was prepared in accordance with GAAP generally accepted accounting principles applied on a consistent basis throughout the periods indicated (except as otherwise stated may be indicated in the SEC Financial Statements notes thereto) and each fairly presented the consolidated financial position, results of operations and cash flows of Parent and its consolidated subsidiaries as the case may be, as at the respective dates thereof and for the respective periods indicated therein (subject, in the case of unaudited statements, to normal and recurring year-end adjustments that were not and are not expected, individually or in the related reports of the Company's independent accountants) and present fairly the consolidated financial position of the Company and its subsidiaries as at the dates thereofaggregate, and the results of operations, changes to be material in financial position and statements of Shareholders' equity of the Company and its Subsidiaries for the periods indicated. No event has occurred since the Balance Sheet Date that would require a restatement of the SEC Financial Statements under GAAP other than by reason of a change in GAAP. The SEC Financial Statements reflect, and on the Closing Date will reflect, the interest of the Company in the assets, liabilities and operations of all Subsidiaries of the Companyamount).
(c) Neither Except as set forth in the Company nor Parent SEC Reports filed with the SEC prior to the date of this Agreement, Parent and its subsidiaries do not have any of its Subsidiaries has any material liability, liability or obligation or commitment of any nature whatsoever (whether known or unknown due or to become due, accrued, fixedabsolute, contingent, liquidated, unliquidated contingent or otherwise) other than liabilitiesliabilities and obligations that would not, obligations or commitments (i) which are accrued or reserved against in the consolidated balance sheet of the Company and its consolidated subsidiaries as of December 31, 1999 included in the Audited Financial Statements or reflected in the notes thereto, (ii)(x) which arose in the ordinary course of business since such date and (y) which do not or would not individually or in the aggregate aggregate, have a Parent Material Adverse Effect, or (iii) which are of the type that would not be required to be reflected on a consolidated balance sheet of the Company and its Subsidiaries or in the notes thereto if such balance sheet were prepared in accordance with GAAP as of the date thereof or as of the Closing Date, as the case may be.
(d) Except as set forth on Schedule 5.25(d), since the date of the Company's 1999 Proxy Statement to the date hereof, the Company has not entered into or otherwise become obligated with respect to any transactions which would require disclosure pursuant to Item 404 of Regulation S-K in accordance with Items 7(b) or (c) of Schedule 14A under the Exchange Act were a Company proxy statement to be distributed as of the date hereof.
Appears in 1 contract
SEC Reports. (a) The Company TACT has previously made available to Vanguard and the Vanguard Stockholders each communication sent by TACT to its stockholders generally since January 1, 2001, and will continue to make such filings and communications available to Vanguard and the Vanguard Stockholders until the Closing. Since January 1, 2001, TACT has timely filed all SEC Reports required forms, to be filed by it under the Exchange Act and any other reports and or documents required to be filed with the SEC since December 31Commission. At the time of filing, 1995 (collectivelymailing, the "SEC Reports")or delivery thereof, except that the Company will file a Notification of Late Filing on Form 126-25 notifying the SEC that its Form 10-K for its 1999 fiscal year could not be filed within the prescribed time period. Each of the SEC Reports has complied were prepared in all material respects accordance with all the applicable requirements of the Securities Exchange Act and the Exchange Actregulations promulgated thereunder and complied with the then applicable accounting requirements, each as in effect on the dates so filed. None and none of such forms, reports documents or documents, including, without limitation, any financial statements information contained or schedules included or incorporated by reference therein, contained, when filed, any will contain an untrue statement of a material fact or omitted or will 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. The Company has heretofore made available or promptly will make available misleading except for such statements, if any, as have been modified by subsequent filings with the Commission prior to the Purchaser, a complete and correct copy of any amendment to the SEC Reportsdate hereof. None Each of the Subsidiaries of the Company is required to file any reports, statements, forms or other documents with the SEC.
(b) The SEC Reports contain audited consolidated balance sheets included in or incorporated by reference into the SEC Reports (including the related notes and schedules) fairly presents in all material respects the consolidated financial position of the Company TACT and its Subsidiaries as of December 31 in its date and each of the years 1995 through 1998, and the related audited consolidated statements of income, statements of cash flow flows and changes in Shareholdersstockholders' equity of the Company and its Subsidiaries for the fiscal years then ended, together with the respective reports thereon of KPMG LLP. These audited financial statements of the Company were included in or incorporated by reference in into the SEC Reports (collectively, including the footnotes thereto, the "SEC Financial Statements"), were prepared any related notes and schedules) fairly presents in accordance with GAAP (except as otherwise stated in the SEC Financial Statements or in the related reports of the Company's independent accountants) and present fairly the consolidated financial position of the Company and its subsidiaries as at the dates thereof, and all material respects the results of operations, cash flows or changes in financial position and statements stockholders' equity, as the case may be, of Shareholders' equity of the Company TACT and its Subsidiaries for the periods indicated. No event has occurred since the Balance Sheet Date that would require a restatement of the SEC Financial Statements under GAAP other than by reason of a change in GAAP. The SEC Financial Statements reflectset forth therein (subject, and on the Closing Date will reflect, the interest of the Company in the assetscase of unaudited statements, liabilities and operations of all Subsidiaries of to such exceptions as may be permitted by Form 10-Q under the Company.
(c) Neither the Company nor any of its Subsidiaries has any material liabilityExchange Act), obligation or commitment of any nature whatsoever (whether known or unknown due or to become due, accrued, fixed, contingent, liquidated, unliquidated or otherwise) other than liabilities, obligations or commitments (i) which are accrued or reserved against in the consolidated balance sheet of the Company and its consolidated subsidiaries as of December 31, 1999 included in the Audited Financial Statements or reflected in the notes thereto, (ii)(x) which arose in the ordinary course of business since such date and (y) which do not or would not individually or in the aggregate have a Material Adverse Effect, or (iii) which are of the type that would not be required to be reflected on a consolidated balance sheet of the Company and its Subsidiaries or in the notes thereto if such balance sheet were prepared each case in accordance with GAAP consistently applied during the periods involved, except as may be noted therein. Upon written request of the date thereof or as Vanguard Stockholders, TACT will furnish to Vanguard and the Vanguard Stockholders copies of (i) all correspondence received from the Commission, and (ii) any of the Closing Date, agreements and instruments filed as the case may be.
(d) Except as set forth on Schedule 5.25(d), since the date of the Company's 1999 Proxy Statement exhibits to the date hereofSEC Reports. TACT has furnished to Vanguard and the Vanguard Stockholders a complete and accurate copy of any amendments or modifications, which have not yet been filed with the Company has not entered into Commission but which are required to be filed, to agreements, documents or otherwise become obligated other instruments which previously had been filed by TACT with respect to any transactions which would require disclosure the Commission pursuant to Item 404 of Regulation S-K in accordance with Items 7(b) the Securities Act or (c) of Schedule 14A under the Exchange Act were a Company proxy statement to be distributed as of the date hereofAct.
Appears in 1 contract
SEC Reports. (a) The Since the Reference Date, the Company has filed or furnished (as applicable) all required forms, reports reports, schedules, statements and documents with the SEC since December 31that have been required to be so filed or furnished (as applicable) by it under Applicable Law at or prior to the time so required, 1995 (collectivelyand, after the "SEC Reports")date of this Agreement and until the Effective Time, except that the Company will file a Notification of Late Filing on Form 126-25 notifying all forms, reports, schedules, statements and documents with the SEC that its Form 10-K for its 1999 fiscal year could not are required to be filed within by it under Applicable Law at or prior to the prescribed time period. Each so required (all such forms, reports, schedules, statements and documents, as the same may have been amended since the date of their filing, the “SEC Reports has complied Reports”).
(b) Except to the extent updated, amended, restated or corrected by a subsequent SEC Report prior to the date hereof, each SEC Report complied, or will comply, as the case may be, as of its filing date, as to form in all material respects with all the applicable requirements of the Securities Act and or the Exchange Act, as the case may be, and with all applicable provisions of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act, each as in effect on the dates so date such SEC Report was, or will be, filed. None of such forms, reports or documents, including, without limitation, any financial statements or schedules included or incorporated by reference therein, contained, when filed, any untrue statement of a material fact or omitted to state a material fact required to be stated or incorporated by reference 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 heretofore made available or promptly will make available to the Purchaser, a complete and correct copy of any amendment to the SEC Reports. None of the Subsidiaries of the Company is required to file any reports, statements, forms or other documents with the SEC.
(b) The SEC Reports contain audited consolidated balance sheets of the Company and its Subsidiaries as of December 31 in each of the years 1995 through 1998, and the related audited consolidated statements of income, statements of cash flow and changes in Shareholders' equity of the Company and its Subsidiaries for the fiscal years then ended, together with the respective reports thereon of KPMG LLP. These audited financial statements of the Company were included or incorporated by reference in the SEC Reports (collectively, including the footnotes thereto, the "SEC Financial Statements"), were prepared in accordance with GAAP (except as otherwise stated in the SEC Financial Statements or in the related reports of the Company's independent accountants) and present fairly the consolidated financial position of the Company and its subsidiaries as at the dates thereof, and the results of operations, changes in financial position and statements of Shareholders' equity of the Company and its Subsidiaries for the periods indicated. No event has occurred since the Balance Sheet Date that would require a restatement of the SEC Financial Statements under GAAP other than by reason of a change in GAAP. The SEC Financial Statements reflect, and on the Closing Date will reflect, the interest of the Company in the assets, liabilities and operations of all Subsidiaries of the Company.
(c) Neither the Company nor any of its Subsidiaries has received from the SEC or any material liabilityother Governmental Authority any written comments or questions with respect to any of the SEC Reports (including the financial statements included therein) or any registration statement filed by any of them with the SEC since the Reference Date or any notice from the SEC or other Governmental Authority that such SEC Reports (including the financial statements included therein) or registration statements are being reviewed or investigated, obligation and, to the knowledge of the Company, there is not, any investigation or commitment review being conducted by the SEC or any other Governmental Authority of any nature whatsoever SEC Reports (whether known or unknown due or to become due, accrued, fixed, contingent, liquidated, unliquidated or otherwise) other than liabilities, obligations or commitments (i) which are accrued or reserved against in including the consolidated balance sheet of the Company and its consolidated subsidiaries as of December 31, 1999 financial statements included in the Audited Financial Statements or reflected in the notes thereto, (ii)(x) which arose in the ordinary course of business since such date and (y) which do not or would not individually or in the aggregate have a Material Adverse Effect, or (iii) which are of the type that would not be required to be reflected on a consolidated balance sheet of the Company and its Subsidiaries or in the notes thereto if such balance sheet were prepared in accordance with GAAP as therein). As of the date thereof of this Agreement, there are no outstanding or as of unresolved comments in comment letters received from the Closing Date, as SEC with respect to the case may beSEC Reports.
(d) Except as set forth on Schedule 5.25(d), since the date None of the Company's 1999 Proxy Statement ’s Subsidiaries is required to file any forms, reports, schedules, statements or other documents with the date hereof, SEC.
(e) No executive officer of the Company has not entered into failed to make the certifications required of him or otherwise become obligated her under Section 302 or 906 of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act with respect to any transactions which would require disclosure pursuant to Item 404 SEC Report, except as disclosed in certifications filed with the SEC Reports, and at the time of Regulation Sfiling or submission of each such certification, such certification was true and accurate and complied with the ▇▇▇▇▇▇▇▇-K in accordance with Items 7(b) ▇▇▇▇▇ Act. Neither the Company nor any of its executive officers has received written notice from any Governmental Authority challenging or (c) questioning the accuracy, completeness, form or manner of Schedule 14A under the Exchange Act were a Company proxy statement to be distributed as filing of the date hereofsuch certifications.
Appears in 1 contract
Sources: Merger Agreement (Coherent Inc)
SEC Reports. (aNotwithstanding that the Company may not be subject to the reporting requirements of Section 13 or 15(d) The Company has filed all required formsof the Exchange Act, reports to the extent permitted by the Exchange Act and documents with the SEC since December 31SEC, 1995 (collectively, the "SEC Reports"), except that the Company will file or furnish with the SEC, and make available to the Trustee and the Holders of the Notes, the annual reports and the information, documents and other reports (or copies of such portions of any of the foregoing as the SEC may by rules and regulations prescribe) that are specified in Sections 13 and 15(d) of the Exchange Act within the time periods specified therein or in the relevant forms. In the event that the Company is not permitted to file such reports, documents and information with the SEC pursuant to the Exchange Act or any rule, regulation, interpretation or action of the SEC, the Company will nevertheless make available such Exchange Act information to the Trustee and Holders of Notes as if the Company were subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act within the time periods specified therein. If the Company has designated any of its Subsidiaries as Unrestricted Subsidiaries, or if the Company’s consolidated financial statements consolidate any Physician Groups that are not Restricted Subsidiaries, and if such Unrestricted Subsidiaries and Physician Groups that are not Restricted Subsidiaries would, in the aggregate and calculated as of the last day of the applicable fiscal quarter or fiscal year, as the case may be, constitute a Notification of Late Filing Significant Subsidiary, then the quarterly report on Form 12610-25 notifying the SEC that its Q or annual report on Form 10-K (or any applicable successor forms) for its 1999 such fiscal year could not be filed within quarter or fiscal year, as the prescribed time period. Each of case may be, required by the SEC Reports has complied in all material respects with all applicable requirements of the Securities Act and the Exchange Act, each as in effect on the dates so filed. None of such forms, reports or documents, including, without limitation, any financial statements or schedules included or incorporated by reference therein, contained, when filed, any untrue statement of preceding paragraph shall include a material fact or omitted to state a material fact required to be stated or incorporated by reference therein or necessary in order to make the statements thereinreasonably detailed presentation or, in light the case of the circumstances under which they were made, not misleading. The Company has heretofore made available or promptly will make available to the Purchaser, a complete and correct copy of any amendment to the SEC Reports. None of the Subsidiaries of the Company is required to file any reports, statements, forms or other documents with the SEC.
clause (b) The SEC Reports contain audited consolidated balance sheets of the Company and its Subsidiaries as of December 31 in each of the years 1995 through 1998below, and the related audited consolidated statements of incomea summary, statements of cash flow and changes in Shareholders' equity of the Company and its Subsidiaries for the fiscal years then ended, together with the respective reports thereon of KPMG LLP. These audited financial statements of the Company were included or incorporated by reference (a) in the SEC Reports (collectively, including the footnotes thereto, the "SEC Financial Statements"), were prepared in accordance with GAAP (except as otherwise stated in the SEC Financial Statements or in the related reports of the Company's independent accountants) and present fairly to the consolidated financial position statements and (b) in Management’s Discussion and Analysis of Results of Operations and Financial Condition, of the Company consolidated financial condition and its subsidiaries as at the dates thereof, and the results of operations, changes in financial position and statements of Shareholders' equity of the Company and its Subsidiaries for the periods indicated. No event has occurred since the Balance Sheet Date that would require a restatement of the SEC Financial Statements under GAAP other than by reason of a change in GAAP. The SEC Financial Statements reflect, and on the Closing Date will reflect, the interest of the Company in the assets, liabilities and operations of all Subsidiaries of the Company.
(c) Neither the Company nor any of its Subsidiaries has any material liability, obligation or commitment of any nature whatsoever (whether known or unknown due or to become due, accrued, fixed, contingent, liquidated, unliquidated or otherwise) other than liabilities, obligations or commitments (i) which are accrued or reserved against in the consolidated balance sheet of the Company and its consolidated subsidiaries as of December 31subsidiaries, 1999 included excluding any such Unrestricted Subsidiaries and without consolidating any such Physician Groups that are not Restricted Subsidiaries (it being understood that information comparable to that appearing under the caption “Risk Factors—Risks Relating to Investment in the Audited Financial Statements or reflected in Notes–Our consolidated financial statements include the notes thereto, (ii)(x) which arose in the ordinary course results of business since such date and (y) which do certain physician groups that are not or would not individually or in the aggregate have a Material Adverse Effect, or (iii) which are of the type that would not be required to be reflected on a consolidated balance sheet of owned by the Company and its Subsidiaries or will not guarantee the notes” in the notes thereto if such balance sheet were prepared in accordance with GAAP as Company’s prospectus supplement dated June 10, 2014 relating to the original issuance of the date thereof Notes on the Issue Date will be deemed to satisfy the requirements of this clause (b), provided that, for purposes of this clause (b), such information shall be provided for the three, six or as nine month period of the Closing Datethen current fiscal year covered by such Form 10-Q (it being understood that no such information need be provided for any three month period within any such six or nine month period) or the most recent fiscal year covered by such Form 10-K, as the case may be.
). The quarterly and annual financial information required by the preceding sentence shall reflect the adjustments necessary so that any Unrestricted Subsidiaries and any Physician Groups that are not Restricted Subsidiaries (dand any Subsidiaries of such Unrestricted Subsidiaries and such Physician Groups) Except as set forth on Schedule 5.25(d), since are not consolidated in the date Company’s financial statements (it being understood that the Company’s direct or indirect equity interest in and share of the Company's 1999 Proxy Statement revenues, operating income, net income or similar operating results of any such Person that is accounted for under the equity method, and any management fees or other amounts payable to the date hereofCompany or any of its Restricted Subsidiaries by any such Physician Group that is not a Restricted Subsidiary, may be reflected in such consolidated financial information; and it being further understood that all such adjustments may appear in the notes to the financial statements and need not be made or reflected in the financial statements themselves). Anything in this paragraph to the contrary notwithstanding, the Company has not entered into or otherwise become obligated with respect to any transactions which would require disclosure pursuant to Item 404 of Regulation Smay, if it so elects, provide the information required by this paragraph in a current report on Form 8-K in accordance (or any applicable successor form) filed substantially concurrently with Items 7(bthe applicable Form 10-Q or 10-K, as the case may be. For purposes of this Section 4.18, the Company and the Subsidiary Guarantors will be deemed to have furnished the reports to the Trustee and the Holders of Notes as required by this Section 4.18 if they have filed or furnished such reports with the SEC via the ▇▇▇▇▇ (or successor or similar) filing system and such reports are publicly available. Delivery of such reports, information and documents to the Trustee is for informational purposes only and the Trustee’s receipt of such shall not constitute constructive notice of any information contained therein or determinable from information contained therein, including the Company’s compliance with any of its covenants hereunder (c) of Schedule 14A under as to which the Exchange Act were a Company proxy statement Trustee is entitled to be distributed as of the date hereofrely exclusively on Officers’ Certificates).
Appears in 1 contract
SEC Reports. (a) The Company Since December 31, 2009, ▇▇▇▇▇ has filed all required forms, reports and documents with the SEC since December 31that have been required to be filed by it under Applicable Law prior to the date hereof, 1995 and Buyer will timely file prior to the Closing all forms, reports and documents with the SEC that are required to be filed by it under Applicable Law prior to such time (collectivelyall such forms, reports and documents, together with all exhibits and schedules thereto, the "SEC Reports"), except that the Company will file a Notification of Late Filing on Form 126-25 notifying the SEC that its Form 10-K for its 1999 fiscal year could not be filed within the prescribed time period. Each of the consolidated balance sheets included in or incorporated by reference into the SEC Reports has (including related notes and schedules) complied as to form in all material respects with the applicable accounting requirements and the published rules and regulations of the SEC with respect thereto and fairly presents in all material respects the consolidated financial position of Buyer and its subsidiaries (or such entities as indicated in such balance sheet) as of its date, and each of the consolidated statements of operations, cash flows and changes in stockholders' equity included in or incorporated by reference into the SEC Reports (including any related notes and schedules) fairly presents in all material respects the results of operations, cash flows or changes in stockholders' equity, as the case may be, of Buyer and its subsidiaries (or such entities as indicated in such balance sheet) for the periods set forth therein (subject, in the case of unaudited statements, to (i) such exceptions as may be permitted by Form 10-Q and (ii) normal, recurring year-end audit adjustments which are not material in the aggregate), in each case in accordance with GAAP consistently applied during the periods involved, except as may be noted therein.
(b) As of its filing date (or, if amended or superseded by a filing prior to the date of this Agreement, on the date of the last such amendment or superseding filing) or submission date, as the case may be (i) each SEC Report complied, or will comply, as the case may be, as to form in all material respects with the applicable requirements of the Securities Act and Act, the Exchange Act, the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002, as amended, or any successor statute, rules or regulations thereto ("▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act") and the ▇▇▇▇-▇▇▇▇▇ Act of 2010, as the case may be, and the applicable rules and regulations promulgated thereunder, each as in effect on the dates so filed. None of date such forms, reports SEC Report was or documents, including, without limitation, any financial statements or schedules included or incorporated by reference therein, contained, when will be filed, and (ii) the Transaction PPM and each SEC Report did not, and will not, as the case may be, contain any untrue statement of a material fact or omitted omit to state a any material fact required to be stated or incorporated by reference therein or necessary in order to make the statements made therein, in the light of the circumstances under which they were made, not misleading. The Company Buyer has heretofore delivered or made available or promptly will make available to the Purchaser, a Company complete and correct copy copies of all material correspondence between the SEC, on the one hand, and Buyer, on the other hand, occurring since December 31, 2009, that is not publicly available via the Electronic Data Gathering, Analysis, and Retrieval system of the SEC. As of the date hereof, there are no material outstanding or unresolved comments in comment letters from the SEC staff with respect to any amendment to of the SEC Reports. None As of the Subsidiaries date hereof, to the knowledge of Buyer, none of the Company is required to file any reports, statements, forms or other documents with the SEC.
(b) The SEC Reports contain audited consolidated balance sheets is the subject of ongoing SEC review, outstanding SEC comment or outstanding SEC investigation. No executive officer of ▇▇▇▇▇ has failed to make the certifications required of him or her under Section 302 or 906 of the Company and ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act with respect to any SEC Report. Neither Buyer nor, to the knowledge of Buyer, any of its Subsidiaries Representatives, has received notice from any Governmental Authority challenging or questioning the accuracy, completeness, form or manner of filing of such certifications. Except as of December 31 in each of the years 1995 through 1998, and the related audited consolidated statements of income, statements of cash flow and changes in Shareholders' equity of the Company and its Subsidiaries for the fiscal years then ended, together with the respective reports thereon of KPMG LLP. These audited financial statements of the Company were included or incorporated by reference previously disclosed in the SEC Reports (collectively, including since the footnotes thereto, the "SEC Financial Statements"), were prepared in accordance with GAAP (except as otherwise stated in the SEC Financial Statements or in the related reports enactment of the Company's independent accountants▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act, Buyer and each of its officers and, to the knowledge of Buyer, each of its directors, have been and are in compliance in all material respects with (A) the applicable provisions of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act and present fairly the consolidated rules and regulations promulgated thereunder and (B) the applicable listing and corporate governance rules and regulations of the Nasdaq Global Select Market. As part of the Transaction PPM, Buyer has supplied or made available to the Sellers and the Company the same information (including financial position information and data) provided to the Related Investor, and none of the information provided to the Related Investor but not provided to the Company and its subsidiaries as at the dates thereof, and the results of operations, changes Sellers is necessary in financial position and statements of Shareholders' equity of the Company and its Subsidiaries order for the periods indicated. No event has occurred since the Balance Sheet Date that would require a restatement of the SEC Financial Statements under GAAP other than by reason of a change in GAAP. The SEC Financial Statements reflect, and on the Closing Date will reflect, the interest of the Company in the assets, liabilities and operations of all Subsidiaries of the CompanySellers to make an informed investment decision thereunder.
(c) Neither the Company nor any of its Subsidiaries has any material liability, obligation or commitment of any nature whatsoever (whether known or unknown due or to become due, accrued, fixed, contingent, liquidated, unliquidated or otherwise) other than liabilities, obligations or commitments (i) which are accrued or reserved against in the consolidated balance sheet of the Company and its consolidated subsidiaries as of December 31, 1999 included in the Audited Financial Statements or reflected in the notes thereto, (ii)(x) which arose in the ordinary course of business since such date and (y) which do not or would not individually or in the aggregate have a Material Adverse Effect, or (iii) which are of the type that would not be required to be reflected on a consolidated balance sheet of the Company and its Subsidiaries or in the notes thereto if such balance sheet were prepared in accordance with GAAP as of the date thereof or as of the Closing Date, as the case may be.
(d) Except as set forth on Schedule 5.25(d), since the date of the Company's 1999 Proxy Statement to the date hereof, the Company has not entered into or otherwise become obligated with respect to any transactions which would require disclosure pursuant to Item 404 of Regulation S-K in accordance with Items 7(b) or (c) of Schedule 14A under the Exchange Act were a Company proxy statement to be distributed as of the date hereof.
Appears in 1 contract
Sources: Stock Purchase Agreement (Kratos Defense & Security Solutions, Inc.)
SEC Reports. (a) The Since June 30, 2005, the Company has filed or furnished (as applicable) all required forms, reports and documents with the SEC since December 31that were required to be so filed or furnished (as applicable) by it under the Exchange Act or the Securities Act and, 1995 (collectivelyafter the date of this Agreement and until the expiration date of the Offer, the "SEC Reports"), except that the Company will file a Notification of Late Filing on Form 126-25 notifying all forms, reports and documents with the SEC that its Form 10-K for its 1999 fiscal year could not are required to be filed within by it under the prescribed Exchange Act or the Securities Act (all such forms, reports and documents (as have been amended since the time periodof their filing), as well as any other forms, reports or other documents, filed or furnished (as applicable) by the Company with the SEC on or prior to the expiration date of the Offer that are not required to be so filed or furnished, being collectively referred to herein as the “SEC Reports”). Each SEC Report complied or will comply, as the case may be, as of its filing date as of its respective effective date (in the case of the SEC Reports has complied that are registration statements filed pursuant to the requirements of the Securities Act), as of its respective filing date (in the case of all other SEC Reports), or, in each case, if amended prior to the date hereof, as of the date of the last amendment, as to form in all material respects with all the applicable requirements of the Securities Act and or the Exchange Act, as the case may be, and with all applicable rules and regulations of the Securities Act, the Exchange Act or as otherwise promulgated by the SEC, each as in effect on the dates so date such SEC Report was filed. None True and correct copies of all Company SEC Reports filed since June 30, 2005 until prior to the date hereof, whether or not required under the Securities Act or the Exchange Act have been furnished to Parent or are publicly available in the Electronic Data Gathering, Analysis and Retrieval (E▇▇▇▇) database of the SEC. As of its filing date (or, if amended or superseded by a filing prior to the date of this Agreement, on the date of such formsamended or superseded filing), reports or documents, including, without limitation, any financial statements or schedules included or incorporated by reference therein, contained, when filed, each SEC Report did not and will not contain any untrue statement of a material fact or omitted omit to state a any material fact required to be stated or incorporated by reference therein or necessary in order to make the statements made therein, in the light of the circumstances under which they were made, not misleading. The Except as publicly available from the SEC, since June 30, 2005 the Company has heretofore made available not received from the SEC any written comments or promptly will make available questions with respect to any of the SEC Reports (including the financial statements included therein) or any registration statement filed by it with the SEC or any notice from the SEC that such SEC Reports (including the financial statements included therein) or registration statements are being reviewed or investigated, and, to the PurchaserCompany’s knowledge, a complete and correct copy there is not, as of the date of this Agreement, any investigation or review being conducted by the SEC of any amendment to SEC Reports (including the SEC Reportsfinancial statements included therein). None of the Company’s Subsidiaries of the Company is required to file any reportsforms, statements, forms reports or other documents with the SEC.
(b) The SEC Reports contain audited consolidated balance sheets . No executive officer of the Company and its Subsidiaries as has failed to make the certifications required of December 31 in each him or her under Section 302 or 906 of the years 1995 through 1998S▇▇▇▇▇▇▇-▇▇▇▇▇ Act with respect to any SEC Report, and the related audited consolidated statements of income, statements of cash flow and changes except as disclosed in Shareholders' equity of the Company and its Subsidiaries for the fiscal years then ended, together certifications filed with the respective reports thereon of KPMG LLPSEC Reports. These audited financial statements of the Company were included or incorporated by reference in the SEC Reports (collectively, including the footnotes thereto, the "SEC Financial Statements"), were prepared in accordance with GAAP (except as otherwise stated in the SEC Financial Statements or in the related reports of the Company's independent accountants) and present fairly the consolidated financial position of the Company and its subsidiaries as at the dates thereof, and the results of operations, changes in financial position and statements of Shareholders' equity of the Company and its Subsidiaries for the periods indicated. No event has occurred since the Balance Sheet Date that would require a restatement of the SEC Financial Statements under GAAP other than by reason of a change in GAAP. The SEC Financial Statements reflect, and on the Closing Date will reflect, the interest of the Company in the assets, liabilities and operations of all Subsidiaries of the Company.
(c) Neither the Company nor any of its Subsidiaries executive officers has received written notice from any material liabilityGovernmental Authority challenging or questioning the accuracy, obligation completeness, form or commitment manner of any nature whatsoever (whether known or unknown due or to become due, accrued, fixed, contingent, liquidated, unliquidated or otherwise) other than liabilities, obligations or commitments (i) which are accrued or reserved against in the consolidated balance sheet filing of the Company and its consolidated subsidiaries as of December 31, 1999 included in the Audited Financial Statements or reflected in the notes thereto, (ii)(x) which arose in the ordinary course of business since such date and (y) which do not or would not individually or in the aggregate have a Material Adverse Effect, or (iii) which are of the type that would not be required to be reflected on a consolidated balance sheet of the Company and its Subsidiaries or in the notes thereto if such balance sheet were prepared in accordance with GAAP as of the date thereof or as of the Closing Date, as the case may becertifications.
(d) Except as set forth on Schedule 5.25(d), since the date of the Company's 1999 Proxy Statement to the date hereof, the Company has not entered into or otherwise become obligated with respect to any transactions which would require disclosure pursuant to Item 404 of Regulation S-K in accordance with Items 7(b) or (c) of Schedule 14A under the Exchange Act were a Company proxy statement to be distributed as of the date hereof.
Appears in 1 contract
Sources: Merger Agreement (Moldflow Corp)
SEC Reports. (a) The Company has filed all required reports, schedules, forms, reports statements and other documents with required to be filed by it under the SEC Exchange Act, including without limitation pursuant to Section 13(a) or 15(d) thereof, since December 31, 1995 (collectively, the "SEC Reports"), except that filing of the Company will file a Notification of Late Filing Company’s Annual Report on Form 126-25 notifying the SEC that its Form 10-K for its 1999 the fiscal year could not be ended December 31, 2021 (the “2021 Form 10-K”) through the date hereof on a timely basis or has received a valid extension of such time of filing and has filed within any such SEC Reports (as defined below) prior to the prescribed time periodexpiration of any such extension. Each As of its respective filing date, (or, if amended or superseded by a filing prior to the date hereof, on the date of such filing), the 2021 Form 10-K, and all other reports of the Company filed with the SEC Reports has pursuant to the Exchange Act from the filing date of the 2021 Form 10-K through the date of this Agreement (including the exhibits and schedules thereto and documents incorporated by reference therein, being collectively referred to herein as the “SEC Reports”) complied in all material respects with all the applicable requirements of the Securities Act of 1933, as amended (the “Securities Act”) and the Exchange Act. As of its filing date (or, if amended or superseded by a filing prior to the date hereof, on the date of such filing), each as in effect on SEC Report filed pursuant to the dates so filed. None of such forms, reports or documents, including, without limitation, any financial statements or schedules included or incorporated by reference therein, contained, when filed, Exchange Act did not contain any untrue statement of a material fact or omitted omit to state a any material fact required to be stated or incorporated by reference therein or necessary in order to make the statements made therein, in the light of the circumstances under which they were made, not misleading. The Company has heretofore made available or promptly will make available to As of their respective dates, the Purchaser, a complete and correct copy of any amendment to the SEC Reports. None of the Subsidiaries of the Company is required to file any reports, statements, forms or other documents with the SEC.
(b) The SEC Reports contain audited consolidated balance sheets of the Company and its Subsidiaries as of December 31 in each of the years 1995 through 1998, and the related audited consolidated statements of income, statements of cash flow and changes in Shareholders' equity of the Company and its Subsidiaries for the fiscal years then ended, together with the respective reports thereon of KPMG LLP. These audited financial statements of the Company were included or incorporated by reference in the SEC Reports (collectively, including complied as to form in all material respects with applicable accounting requirements and the footnotes published rules and regulations of the SEC with respect thereto, the "SEC Financial Statements"), were . Such financial statements have been prepared in accordance with GAAP United States generally accepted accounting principles, consistently applied, during the periods involved (except (i) as may be otherwise stated indicated in such financial statements or the notes thereto, or (ii) in the SEC Financial Statements case of unaudited interim statements, to the extent they may not include footnotes or in the related reports of the Company's independent accountantsmay be condensed or summary statements) and fairly present fairly in all material respects the consolidated financial position of the Company and its subsidiaries as at the dates thereof, and the results of operations, changes in financial position and statements of Shareholders' equity of the Company and its Subsidiaries for the periods indicated. No event has occurred since the Balance Sheet Date that would require a restatement of the SEC Financial Statements under GAAP other than by reason of a change in GAAP. The SEC Financial Statements reflect, and on the Closing Date will reflect, the interest of the Company in the assets, liabilities and operations of all Subsidiaries of the Company.
(c) Neither the Company nor any of its Subsidiaries has any material liability, obligation or commitment of any nature whatsoever (whether known or unknown due or to become due, accrued, fixed, contingent, liquidated, unliquidated or otherwise) other than liabilities, obligations or commitments (i) which are accrued or reserved against in the consolidated balance sheet of the Company and its consolidated subsidiaries as of December 31the dates thereof and the consolidated results of their operations and cash flows for the periods then ended (subject, 1999 in the case of unaudited statements, to normal year-end audit adjustments). There are no financial statements (historical or pro forma) that are required to be included in the Audited Financial Statements or reflected in the notes thereto, (ii)(x) which arose in the ordinary course of business since such date and (y) which do SEC Reports that are not or would not individually or in the aggregate have a Material Adverse Effect, or (iii) which are of the type that would not be required to be reflected on a consolidated balance sheet of the Company and its Subsidiaries or in the notes thereto if such balance sheet were prepared in accordance with GAAP so included as of the date thereof or as of the Closing Date, as the case may berequired.
(d) Except as set forth on Schedule 5.25(d), since the date of the Company's 1999 Proxy Statement to the date hereof, the Company has not entered into or otherwise become obligated with respect to any transactions which would require disclosure pursuant to Item 404 of Regulation S-K in accordance with Items 7(b) or (c) of Schedule 14A under the Exchange Act were a Company proxy statement to be distributed as of the date hereof.
Appears in 1 contract
SEC Reports. (a) The Company has filed all required forms, reports and documents with the SEC since December 31, 1995 (collectively, the "SEC Reports"), except Notwithstanding that the Company will file a Notification of Late Filing on Form 126-25 notifying the SEC that its Form 10-K for its 1999 fiscal year could may not be filed within subject to the prescribed time period. Each of the SEC Reports has complied in all material respects with all applicable reporting requirements of the Securities Act and Section 13 or 15(d) of the Exchange Act, each as the Company shall provide to the Trustee and the registered Holders of the Notes, within 15 days of the applicable time periods specified in effect on the dates so filed. None of such relevant forms, reports or documents, including, without limitation, any :
(1) all quarterly and annual financial statements or schedules included or incorporated by reference therein, contained, when filed, any untrue statement of a material fact or omitted to state a material fact information that would be required to be stated or incorporated by reference therein or necessary contained in order to make the statements therein, in light of the circumstances under which they were made, not misleading. The Company has heretofore made available or promptly will make available to the Purchaser, a complete and correct copy of any amendment to filing with the SEC Reports. None of the Subsidiaries of on Forms 10-Q and 10-K if the Company is were required to file such Forms (but without any reportsrequirement to provide separate financial statements of any Subsidiary of the Company), statementsincluding a “Management’s Discussion and Analysis of Financial Condition and Results of Operations” and, forms or other documents with respect to the annual information only, a report on the annual financial statements by the Company’s independent registered public accounting firm; and
(2) all current reports that would be required to be filed with the SEC.
SEC on Form 8-K if the Company were required to file such reports; provided that unless otherwise required to be provided to Holders, current reports will only be required with respect to the following Form 8-K Items (or its successor item): Item 1.01 (Entry into a Material Definitive Agreement), Item 1.02 (Termination of a Material Definitive Agreement), Item 1.03 (Bankruptcy or Receivership), Item 2.01 (Completion of Acquisition or Disposition of Assets), Item 2.03 (Creation of a Direct Financial Obligation or an Obligation under an Off-Balance Sheet Arrangement of a Registrant), Item 2.04 (Triggering Events that Accelerate or Increase a Direct Financial Obligation or an Obligation under an Off-Balance Sheet Arrangement), Item 2.05 (Costs Associated with Exit or Disposal Activities), Item 4.01 (Changes in Registrant’s Certifying Accountant), Item 4.02 (Non-Reliance on Previously Issued Financial Statements or a Related Audit Report or Completed Interim Review), Item 5.01 (Changes in Control of Registrant), Items 5.02 (a), (b) and (c) (Departure of Directors or Principal Officers; Election of Directors; Appointment of Principal Officers; Compensatory Arrangements of Certain Officers) and Item 9.01 (Financial Statements and Exhibits, but only with respect to financial statements and pro forma financial information relating to transactions required to be reported pursuant to Item 2.01); provided, however, that to the extent such reports are filed with the SEC and publicly available, such reports shall have been deemed to have been provided to the Holders and no additional copies need to be provided to the Holders, however, copies will still be delivered to the Trustee. Additionally, the Company shall cause such documents to be filed with the SEC unless the SEC shall not accept such documents. The SEC Reports contain audited consolidated balance sheets requirement for the Company to provide information may be satisfied by posting such reports, documents and information on its website within the time periods specified by this Section 3.2; provided, however, that the Company shall (upon request) provide one copy of the exhibits of the foregoing to the Trustee and shall (upon request) provide additional copies of such exhibits to any Holder or prospective Holder. If the Company has designated any of its Subsidiaries as Unrestricted Subsidiaries and such Unrestricted Subsidiaries, either individually or collectively, would otherwise have been a Significant Subsidiary, then the quarterly and annual financial information required by the preceding paragraph shall include a summary presentation, in the footnotes to the financial statements, of the financial condition and results of operations of the Company and its Subsidiaries as of December 31 in each of the years 1995 through 1998Restricted Subsidiaries. In addition, and the related audited consolidated statements of income, statements of cash flow and changes in Shareholders' equity of the Company and its Subsidiaries for the fiscal years then endedSubsidiary Guarantors shall make available to the Holders and to prospective investors, together with upon the respective reports thereon request of KPMG LLP. These audited financial statements of the Company were included or incorporated by reference in the SEC Reports (collectively, including the footnotes theretosuch Holders, the "SEC Financial Statements"), were prepared in accordance with GAAP (except as otherwise stated in the SEC Financial Statements or in the related reports of the Company's independent accountants) and present fairly the consolidated financial position of the Company and its subsidiaries as at the dates thereof, and the results of operations, changes in financial position and statements of Shareholders' equity of the Company and its Subsidiaries for the periods indicated. No event has occurred since the Balance Sheet Date that would require a restatement of the SEC Financial Statements under GAAP other than by reason of a change in GAAP. The SEC Financial Statements reflect, and on the Closing Date will reflect, the interest of the Company in the assets, liabilities and operations of all Subsidiaries of the Company.
(c) Neither the Company nor any of its Subsidiaries has any material liability, obligation or commitment of any nature whatsoever (whether known or unknown due or to become due, accrued, fixed, contingent, liquidated, unliquidated or otherwise) other than liabilities, obligations or commitments (i) which are accrued or reserved against in the consolidated balance sheet of the Company and its consolidated subsidiaries as of December 31, 1999 included in the Audited Financial Statements or reflected in the notes thereto, (ii)(x) which arose in the ordinary course of business since such date and (y) which do not or would not individually or in the aggregate have a Material Adverse Effect, or (iii) which are of the type that would not be information required to be reflected on a consolidated balance sheet delivered pursuant to Rule 144A(d)(4) under the Securities Act to the extent such Notes constitute “restricted securities” within the meaning of the Company and its Subsidiaries or in Securities Act. In no event shall the notes thereto if such balance sheet were prepared in accordance with GAAP as of the date thereof or as of the Closing Date, as the case may be.
(d) Except as set forth on Schedule 5.25(d), since the date of the Company's 1999 Proxy Statement to the date hereof, Trustee be responsible for determining whether the Company has satisfied its delivery obligations set forth in the foregoing Section 3.2 (including, but not entered into or otherwise become obligated with respect to any transactions which would require disclosure pursuant to Item 404 of Regulation S-K in accordance with Items 7(blimited to, clauses (1) or and (c2) of Schedule 14A under the Exchange Act were a Company proxy statement to be distributed as of the date hereofthereof).
Appears in 1 contract
Sources: Indenture (McClatchy Co)
SEC Reports. (a) The consolidated financial statements of the Company has filed all required forms, reports and documents with the related notes contained in the SEC since December 31Reports present fairly, 1995 (collectivelyin all material respects, the "SEC Reports")financial position of the Company as of the dates indicated, and the results of its operations, cash flows and the changes in shareholders’ equity for the periods therein specified, subject, in the case of unaudited financial statements for interim periods, to normal year-end audit adjustments. Such financial statements (including the related notes) have been prepared in accordance with GAAP applied on a consistent basis throughout the periods therein specified, except that the Company will file a Notification of Late Filing on Form 126-25 notifying the SEC that its Form 10-K for its 1999 fiscal year could unaudited financial statements may not be filed within the prescribed time periodcontain all footnotes required by GAAP. Each of the SEC Reports has been timely filed, to the extent required by law, and, as of their respective dates, each of the SEC Reports, as amended, complied as to form in all material respects with all the applicable requirements of the Securities Act or the Exchange Act or any other applicable law, as the case may be, and the Exchange Actrules and regulations of the SEC thereunder, in each as in effect on case, to the dates so filed. None extent applicable to such SEC Reports, and none of such forms, reports or documents, including, without limitation, any financial statements or schedules included or incorporated by reference therein, the SEC Reports contained, when filedfiled or, if amended prior to the date of this Agreement, as of the date of such amendment with respect to those disclosures that are amended, any untrue statement of a material fact or omitted to state a material fact required to be stated or incorporated by reference 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 heretofore made available each of the SEC Reports (including via the ▇▇▇▇▇ system). As of the date hereof, there are no material outstanding or promptly will make available unresolved comments in comment letters from the SEC staff with respect to the Purchaser, a complete and correct copy any of any amendment to the SEC Reports. None of To the Subsidiaries of the Company is required to file any reports, statements, forms or other documents with the SEC.
(b) The SEC Reports contain audited consolidated balance sheets of the Company and its Subsidiaries as of December 31 in each of the years 1995 through 1998, and the related audited consolidated statements of income, statements of cash flow and changes in Shareholders' equity of the Company and its Subsidiaries for the fiscal years then ended, together with the respective reports thereon of KPMG LLP. These audited financial statements of the Company were included or incorporated by reference in the SEC Reports (collectively, including the footnotes thereto, the "SEC Financial Statements"), were prepared in accordance with GAAP (except as otherwise stated in the SEC Financial Statements or in the related reports knowledge of the Company's independent accountants) and present fairly the consolidated financial position of the Company and its subsidiaries as at the dates thereof, and the results of operations, changes in financial position and statements of Shareholders' equity of the Company and its Subsidiaries for the periods indicated. No event has occurred since the Balance Sheet Date that would require a restatement of the SEC Financial Statements under GAAP other than by reason of a change in GAAP. The SEC Financial Statements reflect, and on the Closing Date will reflect, the interest of the Company in the assets, liabilities and operations of all Subsidiaries of the Company.
(c) Neither the Company nor any of its Subsidiaries has any material liability, obligation or commitment of any nature whatsoever (whether known or unknown due or to become due, accrued, fixed, contingent, liquidated, unliquidated or otherwise) other than liabilities, obligations or commitments (i) which are accrued or reserved against in the consolidated balance sheet of the Company and its consolidated subsidiaries as of December 31, 1999 included in the Audited Financial Statements or reflected in the notes thereto, (ii)(x) which arose in the ordinary course of business since such date and (y) which do not or would not individually or in the aggregate have a Material Adverse Effect, or (iii) which are of the type that would not be required to be reflected on a consolidated balance sheet of the Company and its Subsidiaries or in the notes thereto if such balance sheet were prepared in accordance with GAAP as of the date thereof or as of the Closing Date, as the case may be.
(d) Except as set forth on Schedule 5.25(d), since the date of the Company's 1999 Proxy Statement to the date hereof, the Company has not entered into or otherwise become obligated with respect to any transactions which would require disclosure pursuant to Item 404 of Regulation S-K in accordance with Items 7(b) or (c) of Schedule 14A under the Exchange Act were a Company proxy statement to be distributed as of the date hereof, (A) none of the SEC Reports is the subject of ongoing SEC review or outstanding SEC comment and (B) neither the SEC nor any other Governmental Entity is conducting any investigation or review of any SEC Reports.
Appears in 1 contract
SEC Reports. (a) The Company has filed all required reports, schedules, forms, reports statements and other documents with the SEC since December 31, 1995 (collectively, the "SEC Reports"), except that required to be filed by the Company will file a Notification of Late Filing on Form 126-25 notifying the SEC that its Form 10-K for its 1999 fiscal year could not be filed within the prescribed time period. Each of the SEC Reports has complied in all material respects with all applicable requirements of under the Securities Act and the Exchange Act, each as in effect on including pursuant to Section 13(a) or 15(d) thereof, since January 1, 2012 (the dates so filed. None of such formsforegoing materials, reports or documents, including, without limitation, any financial statements or schedules included or including the exhibits thereto and documents incorporated by reference therein, containedbeing collectively referred to herein as the "SEC Reports") on a timely basis or has received a valid extension of such time of filing and has filed any such SEC Reports prior to the expiration of any such extension. As of their respective dates, the SEC Reports (i) were complete and accurate in all material respects and none of the SEC Reports, when filed, contained any untrue statement of a material fact or omitted to state a material fact required to be stated or incorporated by reference therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleadingmisleading and (ii) complied in all material respects with the requirements of the Securities Act and the Exchange Act, as applicable. The Company has heretofore made available or promptly will make available to Since the Purchaser, a complete and correct copy date of any amendment to the latest audited financial statements included within the SEC Reports. None of , except as specifically disclosed in a subsequent SEC Report filed prior to the Subsidiaries of date hereof, (i) there has been no event, occurrence or development that has had or that would reasonably be expected to result in a Material Adverse Effect, (ii) the Company is required to file any reports, statements, forms or other documents with the SEC.
(b) The SEC Reports contain audited consolidated balance sheets of the Company and its Subsidiaries as of December 31 in each of the years 1995 through 1998, and the related audited consolidated statements of income, statements of cash flow and changes in Shareholders' equity of the Company and its Subsidiaries for the fiscal years then ended, together with the respective reports thereon of KPMG LLP. These audited financial statements of the Company were included or incorporated by reference in the SEC Reports (collectively, including the footnotes thereto, the "SEC Financial Statements"), were prepared in accordance with GAAP (except as otherwise stated in the SEC Financial Statements or in the related reports of the Company's independent accountants) and present fairly the consolidated financial position of the Company and its subsidiaries as at the dates thereof, and the results of operations, changes in financial position and statements of Shareholders' equity of the Company and its Subsidiaries for the periods indicated. No event has occurred since the Balance Sheet Date that would require a restatement of the SEC Financial Statements under GAAP other than by reason of a change in GAAP. The SEC Financial Statements reflect, and on the Closing Date will reflect, the interest of the Company in the assets, liabilities and operations of all Subsidiaries of the Company.
(c) Neither the Company nor any of its Subsidiaries has not incurred any material liability, obligation or commitment of any nature whatsoever liabilities (whether known or unknown due or to become due, accrued, fixed, contingent, liquidated, unliquidated contingent or otherwise) other than liabilities, obligations or commitments (iA) which are trade payables and accrued or reserved against in the consolidated balance sheet of the Company and its consolidated subsidiaries as of December 31, 1999 included in the Audited Financial Statements or reflected in the notes thereto, (ii)(x) which arose expenses incurred in the ordinary course of business since such date consistent with past practice and (yB) which do liabilities not or would not individually or in the aggregate have a Material Adverse Effect, or (iii) which are of the type that would not be required to be reflected on a consolidated balance sheet of in the Company’s financial statements pursuant to GAAP or disclosed in filings made with the SEC, (iii) the Company has not altered its method of accounting, (iv) the Company has not declared or made any dividend or distribution of cash or other property to its stockholders or purchased, redeemed or made any agreements to purchase or redeem any shares of its capital stock and its Subsidiaries or except for this Agreement and for dividends made in the notes thereto if such balance sheet were prepared in accordance with GAAP as of the date thereof or as of the Closing Date, as the case may be.
(d) Except as set forth on Schedule 5.25(d), since the date respect of the Company's 1999 Proxy Statement to the date hereofSeries A Convertible Preferred Stock, and (v) the Company has not entered into or otherwise become obligated with respect issued any equity securities to any transactions which would require disclosure officer, director or Affiliate, except pursuant to Item 404 of Regulation S-K in accordance with Items 7(b) or (c) of Schedule 14A under the Exchange Act were a existing Company proxy statement to be distributed as of the date hereofstock option plans.
Appears in 1 contract
SEC Reports. (a) The Company has timely filed or furnished (as applicable) all required forms, reports and documents with the SEC since December 31, 1995 (collectively, the "SEC Reports"), except that the Company will file a Notification of Late Filing on Form 126-25 notifying the SEC that its Form 10-K for its 1999 fiscal year could not be filed within the prescribed time period. Each of the SEC Reports has complied in all material respects with all applicable requirements of that have been required to be so filed or furnished (as applicable) by it under the Securities Act and or the Exchange Act, each as in effect on the dates so filed. None of such forms, reports or documents, including, without limitation, any financial statements or schedules included or incorporated by reference therein, contained, when filed, any untrue statement of a material fact or omitted to state a material fact required to be stated or incorporated by reference 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 heretofore made available or promptly will make available to the Purchaser, a complete and correct copy of any amendment to the SEC Reports. None of the Subsidiaries of the Company is required to file any reports, statements, forms or other documents with the SEC.
(b) The SEC Reports contain audited consolidated balance sheets of the Company and its Subsidiaries as of December 31 in each of the years 1995 through 1998, and the related audited consolidated statements of income, statements of cash flow and changes in Shareholders' equity of the Company and its Subsidiaries for the fiscal years then ended, together with the respective reports thereon of KPMG LLP. These audited financial statements of the Company were included or incorporated by reference in the SEC Reports (collectively, including the footnotes thereto, the "SEC Financial Statements"), were prepared in accordance with GAAP (except as otherwise stated in the SEC Financial Statements or in the related reports of the Company's independent accountants) and present fairly the consolidated financial position of the Company and its subsidiaries as at the dates thereof, and the results of operations, changes in financial position and statements of Shareholders' equity of the Company and its Subsidiaries for the periods indicated. No event has occurred since the Balance Sheet Date that would require a restatement of the SEC Financial Statements under GAAP other than by reason of a change in GAAP. The SEC Financial Statements reflect, and on the Closing Date will reflect, the interest of the Company in the assets, liabilities and operations of all Subsidiaries of the Company.
(c) Neither the Company nor any of its Subsidiaries has any material liability, obligation or commitment of any nature whatsoever (whether known or unknown due or to become due, accrued, fixed, contingent, liquidated, unliquidated or otherwise) other than liabilities, obligations or commitments (i) which are accrued or reserved against in the consolidated balance sheet of the Company and its consolidated subsidiaries as of December 31, 1999 included in the Audited Financial Statements or reflected in the notes thereto, (ii)(x) which arose in the ordinary course of business since such date and (y) which do not or would not individually or in the aggregate have a Material Adverse Effect, or (iii) which are of the type that would not be required to be reflected on a consolidated balance sheet of the Company and its Subsidiaries or in the notes thereto if such balance sheet were prepared in accordance with GAAP as of the date thereof or as of the Closing Date, as the case may be.
(db) Each SEC Report filed prior to the date hereof complied, and each SEC Report filed with the SEC after the date hereof, will comply, as the case may be, as of its filing date (or, if amended, as of the amendment date) as to form in all material respects with the applicable requirements of the Securities Act or the Exchange Act, as the case may be, each as in effect on the date such SEC Report was, or will be, filed.
(c) Except as set forth on Schedule 5.25(d)disclosed in the SEC Reports, since the date of the Company's 1999 Proxy Statement to the date hereofReference Date, the Company has not entered into received from the SEC or otherwise become obligated any other Governmental Authority any written comments or questions with respect to any transactions which would require disclosure pursuant to Item 404 of Regulation S-K in accordance with Items 7(bthe SEC Reports (including the financial statements included therein) or any written notice from the SEC or other Governmental Authority that such SEC Reports (cincluding the financial statements included therein) are being reviewed or investigated, and, to the knowledge of the Company, there is not any investigation or review being conducted by the SEC or any other Governmental Authority of any SEC Reports (including the financial statements included therein). As of the date of this Agreement, there are no outstanding or unresolved comments in comment letters received from the SEC with respect to the SEC Reports.
(d) No Subsidiary is required to file any periodic reports, or other documents under Section 13 or Section 15(d) of Schedule 14A the Exchange Act.
(e) Each of the principal executive officer and the principal financial officer of the Company (or each former principal executive officer 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 were a Company proxy statement to be distributed as and Sections 302 and 906 of the date hereofS▇▇▇▇▇▇▇-▇▇▇▇▇ Act with respect to the SEC Reports, and the statements contained in such certifications are true and accurate and were true and accurate when made. For purposes of this Agreement, “principal executive officer” and “principal financial officer” shall have the meanings given to such terms in the S▇▇▇▇▇▇▇-▇▇▇▇▇ Act.
Appears in 1 contract
SEC Reports. (a) The Company Purchaser Parent has filed all required forms, reports and documents required to be filed by it with the SEC since December 31January 1, 1995 2000 and has heretofore made available to the Company, in the form filed with the SEC (collectively, the "SEC Reports"excluding any exhibits thereto), except that the Company will file a Notification of Late Filing (i) its Annual Report on Form 126-25 notifying the SEC that its Form 10-K for its 1999 the fiscal year could not be ended December 31, 2002, and (ii) all other forms, reports, Registration Statements and other documents filed within by the prescribed time period. Each of Purchaser Parent with the SEC since January 1, 2000 (the forms, reports, Registration Statements and other documents referred to in clauses (i) and (ii) above being referred to herein, collectively, as the "Purchaser Parent SEC Reports"). The Purchaser Parent SEC Reports has complied and any other forms, reports and other documents filed by the Purchaser Parent with the SEC before or after the date of this Agreement to the Closing Date (i) were or will be prepared in all material respects in accordance with all applicable the requirements of the Securities Act and the Exchange Act, each as in effect on the dates so filed. None of such formscase may be, reports or documentsand the rules and regulations thereunder, including, without limitation, any financial statements or schedules included or incorporated by reference therein, contained, when and (ii) did not at the time they were filed, or will not at the time they are filed, 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 the light of the circumstances under which they were or are made, not misleading. The Company has heretofore made available or promptly will make available to Except as set forth in the Purchaser, a complete and correct copy of any amendment to the Purchaser Parent SEC Reports. None of the Subsidiaries of the Company is required to file , since December 31, 2002 there has not been any reports, statements, forms or other documents with the SEC.
(b) The SEC Reports contain audited consolidated balance sheets of the Company and its Subsidiaries as of December 31 in each of the years 1995 through 1998, and the related audited consolidated statements of income, statements of cash flow and changes in Shareholders' equity of the Company and its Subsidiaries for the fiscal years then ended, together with the respective reports thereon of KPMG LLP. These audited financial statements of the Company were included or incorporated by reference Material Adverse Change in the SEC Reports (collectivelybusiness, including the footnotes thereto, the "SEC Financial Statements"), were prepared in accordance with GAAP (except as otherwise stated in the SEC Financial Statements or in the related reports of the Company's independent accountants) and present fairly the consolidated financial position of the Company and its subsidiaries as at the dates thereof, and the results of operations, changes in condition (financial position and statements of Shareholders' equity or otherwise), properties, Assets, Liabilities or obligations of the Company and its Subsidiaries for the periods indicated. No event has occurred since the Balance Sheet Date Purchaser Parent that would require a restatement of the SEC Financial Statements under GAAP other than by reason of a change in GAAP. The SEC Financial Statements reflect, and on the Closing Date will reflect, the interest of the Company in the assets, liabilities and operations of all Subsidiaries of the Company.
(c) Neither the Company nor any of its Subsidiaries has any material liability, obligation or commitment of any nature whatsoever (whether known or unknown due or to become due, accrued, fixed, contingent, liquidated, unliquidated or otherwise) other than liabilities, obligations or commitments (i) which are accrued or reserved against in the consolidated balance sheet of the Company and its consolidated subsidiaries as of December 31, 1999 included in the Audited Financial Statements or reflected in the notes thereto, (ii)(x) which arose in the ordinary course of business since such date and (y) which do not or would not individually or in the aggregate have a Material Adverse Effect, or (iii) which are of the type that would not be required to be reflected on a consolidated balance sheet disclosed. 4.8 Stockholders' Consent. No consent or approval of the Company and its Subsidiaries or in the notes thereto if such balance sheet were prepared in accordance with GAAP as stockholders of the date thereof Purchaser or as of the Closing DatePurchaser Parent is required (i) to enter into this Agreement and the Ancillary Documents to which it is a party or to consummate the transactions contemplated hereby and thereby, as the case may be.
(d) Except as set forth on Schedule 5.25(d), since the date of the Company's 1999 Proxy Statement to the date hereof, the Company has not entered into or otherwise become obligated with respect to any transactions which would require disclosure pursuant to Item 404 of Regulation S-K in accordance with Items 7(b) or (cii) of Schedule 14A under to issue the Exchange Act were a Company proxy statement to be distributed as of the date hereof.Purchaser Parent Stock. ARTICLE 5
Appears in 1 contract
SEC Reports. (a) The Except for the Company’s Annual Report on Form 20-F for the year ended December 31, 2019, which was filed late on July 29, 2020 and amended on August 6, 2020, the Company has filed all required reports, schedules, forms, reports statements and other documents required to be filed by the Company under the Act and the Exchange Act, including pursuant to Section 13(a) or 15(d) thereof, for the two years preceding the date hereof (or such shorter period as the Company was required by law or regulation to file such material) (the foregoing materials, including the exhibits thereto and documents incorporated by reference therein, together with the SEC since December 31Prospectus and the Prospectus Supplement, 1995 (collectively, being collectively referred to herein as the "“SEC Reports")”) on a timely basis or has received a valid extension of such time of filing and has filed any such SEC Reports prior to the expiration of any such extension. As of their respective dates, except that the Company will file a Notification of Late Filing on Form 126-25 notifying the SEC that its Form 10-K for its 1999 fiscal year could not be filed within the prescribed time period. Each of the SEC Reports has complied in all material respects with all applicable the requirements of the Securities Act and the Exchange Act, each as in effect on applicable, and none of the dates so filed. None of such forms, reports or documents, including, without limitation, any financial statements or schedules included or incorporated by reference therein, containedSEC Reports, when filed, contained any untrue statement of a material fact or omitted to state a material fact required to be stated or incorporated by reference therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. The Company has heretofore made available or promptly will make available to the Purchaser, a complete and correct copy of any amendment to the SEC Reports. None of the Subsidiaries of the Company is required to file any reports, statements, forms or other documents with the SEC.
(b) The SEC Reports contain audited consolidated balance sheets of the Company and its Subsidiaries as of December 31 in each of the years 1995 through 1998, and the related audited consolidated statements of income, statements of cash flow and changes in Shareholders' equity of the Company and its Subsidiaries for the fiscal years then ended, together with the respective reports thereon of KPMG LLP. These audited financial statements of the Company were included or incorporated by reference in the SEC Reports (collectively, including comply in all material respects with applicable accounting requirements and the footnotes thereto, rules and regulations of the "SEC Financial Statements"), were Commission with respect thereto as in effect at the time of filing. Such financial statements have been prepared in accordance with GAAP United States generally accepted accounting principles applied on a consistent basis during the periods involved (“GAAP”), except as may be otherwise stated specified in such financial statements or the SEC Financial Statements or notes thereto and except that unaudited financial statements may not contain all footnotes required by GAAP, and fairly present in all material respects the related reports of the Company's independent accountants) and present fairly the consolidated financial position of the Company and its subsidiaries consolidated Subsidiaries as at of and for the dates thereof, thereof and the results of operations, changes in financial position operations and statements of Shareholders' equity of the Company and its Subsidiaries cash flows for the periods indicated. No event has occurred since the Balance Sheet Date that would require a restatement of the SEC Financial Statements under GAAP other than by reason of a change in GAAP. The SEC Financial Statements reflectthen ended, and on the Closing Date will reflectsubject, the interest of the Company in the assetscase of unaudited statements, liabilities and operations of all Subsidiaries of the Companyto normal, immaterial, year-end audit adjustments.
(c) Neither the Company nor any of its Subsidiaries has any material liability, obligation or commitment of any nature whatsoever (whether known or unknown due or to become due, accrued, fixed, contingent, liquidated, unliquidated or otherwise) other than liabilities, obligations or commitments (i) which are accrued or reserved against in the consolidated balance sheet of the Company and its consolidated subsidiaries as of December 31, 1999 included in the Audited Financial Statements or reflected in the notes thereto, (ii)(x) which arose in the ordinary course of business since such date and (y) which do not or would not individually or in the aggregate have a Material Adverse Effect, or (iii) which are of the type that would not be required to be reflected on a consolidated balance sheet of the Company and its Subsidiaries or in the notes thereto if such balance sheet were prepared in accordance with GAAP as of the date thereof or as of the Closing Date, as the case may be.
(d) Except as set forth on Schedule 5.25(d), since the date of the Company's 1999 Proxy Statement to the date hereof, the Company has not entered into or otherwise become obligated with respect to any transactions which would require disclosure pursuant to Item 404 of Regulation S-K in accordance with Items 7(b) or (c) of Schedule 14A under the Exchange Act were a Company proxy statement to be distributed as of the date hereof.
Appears in 1 contract
Sources: At the Market Offering Agreement (Bit Digital, Inc)
SEC Reports. (a) The Since January 1, 2010, the Company has filed or furnished (as applicable) all required forms, reports reports, schedules, statements and documents with the SEC since December 31that have been required to be so filed or furnished (as applicable) by it under Applicable Law at or prior to the time so required, 1995 (collectivelyand, after the "SEC Reports")date of this Agreement and until the Effective Time, except that the Company will file a Notification of Late Filing on Form 126-25 notifying all forms, reports, schedules, statements and documents with the SEC that its Form 10-K for its 1999 fiscal year could not are required to be filed within by it under Applicable Law at or prior to the prescribed time period. Each of so required (all such forms, reports, schedules, statements and documents, together with any other forms, reports, schedules, statements or other documents filed or furnished (as applicable) by the Company with the SEC Reports has complied after January 1, 2010 and at or prior to the Effective Time that are not required to be so filed or furnished, the “SEC Reports”).
(b) Each SEC Report complied, or will comply, as the case may be, as of its filing date, as to form in all material respects with all the applicable requirements of the Securities Act and or the Exchange Act, as the case may be, and with all applicable provisions of the S▇▇▇▇▇▇▇-▇▇▇▇▇ Act, each as in effect on the dates so date such SEC Report was, or will be, filed. None .
(c) As of its filing date (or, if amended or superseded by a filing prior to the date of this Agreement, on the date of such formsamended or superseded filing), reports each SEC Report did not, or documentswill not, includingas the case may be, without limitation, any financial statements or schedules included or incorporated by reference therein, contained, when filed, contain any untrue statement of a material fact or omitted omit to state a any material fact required to be stated or incorporated by reference therein or necessary in order to make the statements made therein, in the light of the circumstances under which they were made, not misleading. The Company has heretofore made available or promptly will make available to the Purchaser, a complete and correct copy of any amendment to the SEC Reports. None of the Subsidiaries of the Company is required to file any reports, statements, forms or other documents with the SEC.
(bd) The SEC Reports contain audited consolidated balance sheets of Since January 1, 2010 through the Company and its Subsidiaries as of December 31 in each of the years 1995 through 1998date hereof, and the related audited consolidated statements of income, statements of cash flow and changes in Shareholders' equity of the Company and its Subsidiaries for the fiscal years then ended, together with the respective reports thereon of KPMG LLP. These audited financial statements of the Company were included or incorporated by reference in the SEC Reports (collectively, including the footnotes thereto, the "SEC Financial Statements"), were prepared in accordance with GAAP (except as otherwise stated in the SEC Financial Statements or in the related reports of the Company's independent accountants) and present fairly the consolidated financial position of the Company and its subsidiaries as at the dates thereof, and the results of operations, changes in financial position and statements of Shareholders' equity of the Company and its Subsidiaries for the periods indicated. No event has occurred since the Balance Sheet Date that would require a restatement of the SEC Financial Statements under GAAP other than by reason of a change in GAAP. The SEC Financial Statements reflect, and on the Closing Date will reflect, the interest of the Company in the assets, liabilities and operations of all Subsidiaries of the Company.
(c) Neither neither the Company nor any of its Subsidiaries has received from the SEC or any material liability, obligation or commitment of any nature whatsoever (whether known or unknown due or to become due, accrued, fixed, contingent, liquidated, unliquidated or otherwise) other than liabilities, obligations or commitments Governmental Entity (i) which are accrued or reserved against in the consolidated balance sheet any written comments that have not been resolved with respect to any of the Company and its consolidated subsidiaries as SEC Reports (including the financial statements included therein) or any registration statement filed by any of December 31, 1999 included in them with the Audited Financial Statements or reflected in the notes thereto, (ii)(x) which arose in the ordinary course of business since such date and (y) which do not or would not individually or in the aggregate have a Material Adverse Effect, SEC or (iiiii) which any written notice that such SEC Reports (including the financial statements included therein) or registration statements are being reviewed or investigated, and, to the Knowledge of the type that would not be required to be reflected on a consolidated balance sheet of the Company and its Subsidiaries or in the notes thereto if such balance sheet were prepared in accordance with GAAP Company, there is not, as of the date thereof of this Agreement, any investigation or as review being conducted by the SEC or any other Governmental Entity of any SEC Reports (including the Closing Date, as the case may befinancial statements included therein).
(de) Except as set forth on Schedule 5.25(d), since the date No Subsidiary of the Company's 1999 Proxy Statement Company is subject to the date hereof, reporting requirements of Section 13(a) or Section 15(d) of the Exchange Act.
(f) No executive officer of the Company has not entered into failed to make the certifications required of him or otherwise become obligated her under Section 302 or 906 of the S▇▇▇▇▇▇▇-▇▇▇▇▇ Act with respect to any transactions which would require disclosure pursuant to Item 404 SEC Report, except as disclosed in certifications filed with the SEC Reports. Since January 1, 2010, neither the Company nor any of Regulation S-K in accordance with Items 7(b) its executive officers has received any written notice from any Governmental Entity challenging or (c) questioning the accuracy, completeness, form or manner of Schedule 14A under the Exchange Act were a Company proxy statement to be distributed as filing of the date hereofsuch certifications.
Appears in 1 contract
SEC Reports. (a) The Company has filed all required forms, reports and documents with the SEC since December 31, 1995 (collectively, the "SEC Reports"), except that furnished or made available to the Company will file a Notification complete and accurate copies, as amended or supplemented, of Late Filing its (a) Annual Report on Form 126-25 notifying the SEC that its Form 10-K for its 1999 the fiscal year could not years ended December 31, 2015, 2014 and 2013, as filed with the Securities and Exchange Commission (the “SEC”), which contained audited balance sheets of the Company as of December 31, 2015, 2014 and 2013, and the related statements of operations, stockholders’ deficiency and cash flows for the years then ended; (b) Quarterly Report on Form 10-Q for the quarterly period ended March 31, 2016; and (c) all other reports filed by the Company under Section 13, subsections (a) or (c) of Section 14, or Section 15(d) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), with the SEC (such reports are collectively referred to herein as the “Company Reports”). The Company Reports constitute all of the documents required to be filed within or furnished by the prescribed time period. Each Company with the SEC, including under Section 13 or subsections (a) or (c) of Section 14 of the SEC Exchange Act, through the date of this Agreement. The Company Reports has complied in all material respects with all applicable the requirements of the Securities Exchange Act and the Exchange Act, each as in effect on the dates so rules and regulations thereunder when filed. None As of such formsthe date hereof, reports there are no outstanding or documentsunresolved comments in comment letters received from the staff of the SEC with respect to any of the Company Reports. Except as set forth on Section 3.6(a) of the Company Disclosure Schedule, includingas of their respective dates, without limitationthe Company Reports, including any financial statements statements, schedules or schedules exhibits included or incorporated by reference therein, contained, when filed, 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 therein, in light of the circumstances under which they were made, not misleading. The Company has heretofore made available or promptly will make available to the Purchaser, a complete and correct copy of any amendment to the SEC Reports. None of the Subsidiaries of the Company is required to file any reports, statements, forms or other documents with the SEC.
(b) The SEC Reports contain audited consolidated balance sheets Except as set forth in the Company Reports, the Company has established and maintains a system of “internal controls over financial reporting” (as defined in Rules 13a-15(f) and 15d-15(f) of the Exchange Act) that is sufficient to provide reasonable assurance (i) regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with Generally Accepted Accounting Principles (“GAAP”), (ii) that receipts and expenditures of the Company and its Subsidiaries as of December 31 in each of the years 1995 through 1998, and the related audited consolidated statements of income, statements of cash flow and changes in Shareholders' equity of the Company and its Subsidiaries for the fiscal years then ended, together with the respective reports thereon of KPMG LLP. These audited financial statements of the Company were included or incorporated by reference in the SEC Reports (collectively, including the footnotes thereto, the "SEC Financial Statements"), were prepared are being made only in accordance with GAAP (except as otherwise stated in authorizations of management and the SEC Financial Statements or in the related reports Board of Directors of the Company's independent accountants, and (iii) and present fairly the consolidated financial position regarding prevention or timely detection of the Company and its subsidiaries as at the dates thereofunauthorized acquisition, and the results of operations, changes in financial position and statements of Shareholders' equity of the Company and its Subsidiaries for the periods indicated. No event has occurred since the Balance Sheet Date that would require a restatement of the SEC Financial Statements under GAAP other than by reason of a change in GAAP. The SEC Financial Statements reflect, and on the Closing Date will reflect, the interest of the Company in the assets, liabilities and operations of all Subsidiaries use or disposition of the Company’s assets that could have a material effect on the Company’s financial statements.
(c) Neither Except as set forth in the Company nor any Reports, the Company’s “disclosure controls and procedures” (as defined in Rules 13a-15(e) and 15d-15(e) of the Exchange Act) are designed to ensure that all information (both financial and non-financial) 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 information is accumulated and communicated to the Company’s management as appropriate to allow timely decisions regarding required disclosure and to make the certifications of the chief executive officer and chief financial officer of the Company required under the Exchange Act with respect to such reports. The Company has disclosed, based on its Subsidiaries has any material liabilitymost recent evaluation of such disclosure controls and procedures prior to the date of this Agreement, obligation or commitment to the Company’s auditors and the audit committee of any nature whatsoever the Board of Directors of the Company (whether known or unknown due or to become due, accrued, fixed, contingent, liquidated, unliquidated or otherwiseif any) other than liabilities, obligations or commitments and on Section 3.6(c) of the Company Disclosure Schedule (i) which are accrued or reserved against any significant deficiencies and material weaknesses in the consolidated balance sheet design or operation of internal controls over financial reporting that could adversely affect in any material respect the Company Company’s ability to record, process, summarize and its consolidated subsidiaries as of December 31report financial information, 1999 included and (ii) any fraud, whether or not material, that involves management or other employees who have a significant role in the Audited Financial Statements or reflected Company’s internal controls over financial reporting. For purposes of this Agreement, the terms “significant deficiency” and “material weakness” shall have the meaning assigned to them in the notes theretoPublic Company Accounting Oversight Board Auditing Standard 2, (ii)(x) which arose as in the ordinary course of business since such date and (y) which do not or would not individually or in the aggregate have a Material Adverse Effect, or (iii) which are of the type that would not be required to be reflected effect on a consolidated balance sheet of the Company and its Subsidiaries or in the notes thereto if such balance sheet were prepared in accordance with GAAP as of the date thereof or as of the Closing Date, as the case may bethis Agreement.
(d) Except as set forth on Schedule 5.25(d), since Each of the date principal executive officer and the principal financial officer of the Company (or each former principal executive officer and each former principal financial officer of the Company's 1999 Proxy Statement to the date hereof, the Company as applicable) has not entered into made all certifications required by Rule 13a-14 or otherwise become obligated with respect to any transactions which would require disclosure pursuant to Item 404 of Regulation S-K in accordance with Items 7(b) or (c) of Schedule 14A 15d-14 under the Exchange Act were and Sections 302 and 906 of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002 (including the rules and regulations promulgated thereunder, the “▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act”) with respect to the Company Reports, and the statements contained in such certifications are true and accurate in all material respects. For purposes of this Agreement, “principal executive officer” and “principal financial officer” shall have the meanings given to such terms in the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act. The Company does not have outstanding (nor has it arranged or modified since the enactment of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act) any “extensions of credit” (within the meaning of Section 402 of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act) to directors or executive officers (as defined in Rule 3b-7 under the Exchange Act) of the Company. The Company is otherwise in compliance with all applicable provisions of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act, except for any non-compliance that would not reasonably be expected to have, individually or in the aggregate, a Company proxy statement to be distributed as of the date hereofMaterial Adverse Effect.
Appears in 1 contract
SEC Reports. (a) The Company has filed all required forms, reports and documents will file with the SEC since December 31all information, 1995 (collectivelydocuments and reports to be filed with the SEC pursuant to Section 13 or 15(d) of the Exchange Act, whether or not the "Company is subject to such filing requirements, so long as the SEC Reports")will accept such filings; provided, except however, that the Company will file a Notification of Late Filing shall not be required to make any such filings prior to the date on Form 126-25 notifying which the SEC that its Company's Annual Report on Form 10-K for its 1999 the fiscal year could not ended June 29, 1997 would have been required to be filed within if, at the prescribed time period. Each such filings would have been required to be made with the SEC, either (i) the Company shall have provided to each Holder of the Notes the information that would have been required to be filed or (ii) the Exchange Registration Statement (as such term is defined in the Registration Rights Agreement) has been filed with the SEC Reports but has complied in all material respects with all applicable requirements not yet been declared effective and copies of the Securities Act Exchange Offer Registration Statement and any amendments thereto (to the extent such Registration Statement and/or amendments contain additional information not disclosed in the Offering Memorandum that would have been the subject of a filing required to be made under Section 13 or 15(d) of the Exchange Act, ) have been provided to each as in effect on the dates so filed. None of such forms, reports or documents, including, without limitation, any financial statements or schedules included or incorporated by reference therein, contained, when filed, any untrue statement of a material fact or omitted to state a material fact required to be stated or incorporated by reference therein or necessary in order to make the statements therein, in light Holder of the circumstances under which they were madeNotes, provided that any exhibits to the Exchange Registration Statement (or any amendments thereto) need not misleadingbe delivered to any Holder of the Notes, but sufficient copies thereof shall be furnished to the Trustee as reasonably requested to permit the Trustee to deliver any such exhibits to any Holder of the Notes upon request. The Company has heretofore made available or promptly will make available to (at its own expense) shall file with the Purchaser, a complete and correct copy Trustee within 100 days after the end of any amendment to the SEC Reports. None each fiscal year of the Subsidiaries Company, or within 50 days after the end of the Company is required to file any reports, statements, forms or other documents with the SEC.
(b) The SEC Reports contain audited consolidated balance sheets of the Company and its Subsidiaries as of December 31 in each of the years 1995 through 1998, and the related audited consolidated statements first three fiscal quarters of income, statements of cash flow and changes in Shareholders' equity of the Company and its Subsidiaries for the each fiscal years then ended, together with the respective reports thereon of KPMG LLP. These audited financial statements of the Company were included or incorporated by reference in the SEC Reports (collectively, including the footnotes thereto, the "SEC Financial Statements"), were prepared in accordance with GAAP (except as otherwise stated in the SEC Financial Statements or in the related reports year of the Company's independent accountants) and present fairly the consolidated financial position of the Company and its subsidiaries as at the dates thereof, and the results of operations, changes in financial position and statements of Shareholders' equity of the Company and its Subsidiaries for the periods indicated. No event has occurred since the Balance Sheet Date that would require a restatement of the SEC Financial Statements under GAAP other than by reason of a change in GAAP. The SEC Financial Statements reflect, and on the Closing Date will reflect, the interest of the Company in the assets, liabilities and operations of all Subsidiaries of the Company.
(c) Neither the Company nor any of its Subsidiaries has any material liability, obligation or commitment of any nature whatsoever (whether known or unknown due or to become due, accrued, fixed, contingent, liquidated, unliquidated or otherwise) other than liabilities, obligations or commitments (i) which are accrued or reserved against in the consolidated balance sheet of the Company and its consolidated subsidiaries as of December 31, 1999 included in the Audited Financial Statements or reflected in the notes thereto, (ii)(x) which arose in the ordinary course of business since such date and (y) which do not or would not individually or in the aggregate have a Material Adverse Effect, or (iii) which are of the type that would not be required to be reflected on a consolidated balance sheet of the Company and its Subsidiaries or in the notes thereto if such balance sheet were prepared in accordance with GAAP as of the date thereof or as of the Closing Date, as the case may be, copies of the annual reports or unaudited quarterly consolidated financial statements, as the case may be, and the information, documents and other reports (or copies of such portions of any of the foregoing as the SEC may be rules and regulations prescribe) which the Company files with the SEC pursuant to Section 13 or 15(d) of the Exchange Act. Upon qualification of this Indenture under the TIA, the Company shall also comply with the provisions of TIA Section 314(a).
(db) Except as set forth on Schedule 5.25(d)At the Company's expense, since regardless of whether the date Company is required to furnish such reports and other information referred to in paragraph (a) above to its stockholders pursuant to the Exchange Act, the Company shall cause such reports and other information to be mailed to the Holders at their addresses appearing in the register of Notes maintained by the Registrar within 100 days after the end of each fiscal year of the Company's 1999 Proxy Statement , or within 50 days after the end of each of the first three fiscal quarters of each fiscal year of the Company, as the case may be. Such reports shall be delivered to the date hereofRegistrar and the Registrar will mail them, at the Company has not entered into or otherwise become obligated with respect Company's expense, to any transactions which would require disclosure pursuant to Item 404 the Holders at their addresses appearing in the register of Regulation S-K in accordance with Items 7(b) or Notes maintained by the Registrar.
(c) The Company shall, upon request, provide to any Holder of Schedule 14A Notes or any prospective transferee of any such Holder any information concerning the Company (including financial statements) necessary in order to permit such Holder to sell or transfer Notes in compliance with Rule 144A under the Exchange Act were a Securities Act; provided, however, that the Company proxy statement shall not be required to furnish such information in connection with any request made on or after the date which is three years (or such other date as the Notes shall be distributed as freely transferable pursuant to Rule 144) from the later of (i) the date such Note (or any predecessor Note) was acquired from the Company or (ii) the date such Note (or any predecessor Note) was last acquired from an "affiliate" of the date hereofCompany within the meaning of Rule 144 under the Securities Act.
Appears in 1 contract
SEC Reports. (a) The Company previously has filed all required forms, reports and documents with the SEC since December 31, 1995 made available to Parent (collectively, the "SEC Reports"), except that the Company will file a Notification of Late Filing i) its Annual Report on Form 126-25 notifying the SEC that its Form 10-K for its 1999 fiscal the year could not ended December 31, 2004 (the “Company 10-K”), as filed with the SEC, (ii) all proxy statements relating to Company’s meetings of stockholders held or to be held after December 31, 2004 and (iii) all other documents filed within the prescribed time period. Each of by Company with, or furnished by Company to, the SEC Reports has complied under the Securities Exchange Act of 1934, as amended (the “Exchange Act”), since January 1, 2002 and prior to the date of this Agreement (the “Company SEC Reports”). As of their respective dates, such documents complied, and all documents filed by Company with the SEC between the date of this Agreement and the Closing Date shall comply, in all material respects respects, with all applicable SEC requirements (including the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of the Securities Act 2002 and the Exchange Actrelated rules and regulations promulgated thereunder) and did not, each as or in effect the case of documents filed on or after the dates so filed. None of such formsdate hereof will not, reports or documents, including, without limitation, any financial statements or schedules included or incorporated by reference therein, contained, when filed, 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 therein, in light of the circumstances under which they were made, not misleading. The On and since January 1, 2002, Company has heretofore made available or promptly will make available to timely filed, and between the Purchaserdate of this Agreement and the Closing Date shall timely file, a complete and correct copy of any amendment to with the SEC Reportsall documents required to be filed by it under the Exchange Act. None of the Subsidiaries of the No Company Subsidiary is required to file any reportsform, statements, forms report or other documents document with the SEC.
(b) The SEC Reports contain audited consolidated balance sheets Company has made available to Parent a complete and correct copy of the Company and its Subsidiaries as of December 31 in each of the years 1995 through 1998, and the related audited consolidated statements of income, statements of cash flow and changes in Shareholders' equity of the Company and its Subsidiaries for the fiscal years then ended, together any amendments or modifications which are required to be filed with the respective reports thereon of KPMG LLP. These audited financial statements of SEC, but have not yet been filed with the Company were included or incorporated by reference in the SEC Reports (collectivelySEC, including the footnotes theretoif any, the "SEC Financial Statements"), were prepared in accordance with GAAP (except as otherwise stated in the SEC Financial Statements or in the related reports of the Company's independent accountants) and present fairly the consolidated financial position of the Company and its subsidiaries as at the dates thereof, and the results of operations, changes in financial position and statements of Shareholders' equity of the Company and its Subsidiaries for the periods indicated. No event has occurred since the Balance Sheet Date that would require a restatement of the SEC Financial Statements under GAAP other than by reason of a change in GAAP. The SEC Financial Statements reflect, and on the Closing Date will reflect, the interest of the Company in the assets, liabilities and operations of all Subsidiaries of the Company.
(c) Neither the Company nor any of its Subsidiaries has any material liability, obligation or commitment of any nature whatsoever (whether known or unknown due or to become due, accrued, fixed, contingent, liquidated, unliquidated or otherwise) other than liabilities, obligations or commitments (i) Company Agreements which are accrued previously have been filed by Company with the SEC pursuant to the Securities Act of 1933, as amended (the “Securities Act”) or reserved against in the consolidated balance sheet of the Company and its consolidated subsidiaries as of December 31, 1999 included in the Audited Financial Statements or reflected in the notes thereto, (ii)(x) which arose in the ordinary course of business since such date Exchange Act and (yii) which do not or would not individually or in the aggregate have a Material Adverse Effect, or (iii) which are of the type that would not be required to be reflected on a consolidated balance sheet of the Company and its Subsidiaries or in the notes thereto if such balance sheet were prepared in accordance with GAAP as of the date thereof or as of the Closing Date, as the case may be.
(d) Except as set forth on Schedule 5.25(d), since the date of the Company's 1999 Proxy Statement SEC Reports filed prior to the date hereof, . Company has timely responded to all comment letters and other correspondence of the staff of the SEC relating to the Company SEC Reports, and the SEC has not entered into notified Company that any final responses are inadequate, insufficient or otherwise become obligated with respect non-responsive. Company has made available to Parent true and complete copies of all correspondence between the SEC, on the one hand, and Company and any transactions which would require disclosure pursuant of the Company Subsidiaries, on the other, occurring since January 1, 2002 and prior to Item 404 of Regulation S-K in accordance with Items 7(b) the date hereof and will, reasonably promptly following the receipt thereof, make available to Parent any such correspondence sent or (c) of Schedule 14A under the Exchange Act were a Company proxy statement to be distributed as of received after the date hereof. To the knowledge of Company, none of the Company SEC Reports is the subject of ongoing SEC review or outstanding SEC comment.
Appears in 1 contract
SEC Reports. (a) The Since December 31, 2016 (the “Reference Date”), the Company has filed or furnished (as applicable) all required forms, reports reports, schedules, statements and documents with the SEC since December 31that have been required to be so filed or furnished (as applicable) by it under Applicable Law at or prior to the time so required, 1995 (collectivelyand, after the "SEC Reports")date of this Agreement and until the Effective Time, except that the Company will file a Notification of Late Filing on Form 126-25 notifying all forms, reports, schedules, statements and documents with the SEC that its Form 10-K for its 1999 fiscal year could not are required to be filed within by it under Applicable Law at or prior to the prescribed time period. Each of so required (all such forms, reports, schedules, statements and documents filed, together with any other forms, reports, schedules, statements or other documents filed or furnished (as applicable) by the Company with the SEC Reports has complied at or prior to the Effective Time, the “SEC Reports”).
(b) Each SEC Report complied, or will comply, as the case may be, as of its filing date, as to form in all material respects with all the applicable requirements of the Securities Act and or the Exchange Act, as the case may be, and with all applicable provisions of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act, each as in effect on the dates so date such SEC Report was, or will be, filed. None .
(c) Since the Reference Date, neither the Company nor any of its Subsidiaries has received from the SEC or any other Governmental Authority any written comments or questions with respect to any of the SEC Reports (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 Authority that such formsSEC Reports (including the financial statements included therein) or registration statements are being reviewed or investigated, reports or documentsand, includingto the knowledge of the Company, without limitationthere is not, any investigation or review being conducted by the SEC or any other Governmental Authority of any SEC Reports (including the financial statements or schedules included or incorporated by reference therein, contained, when filed, any untrue statement of a material fact or omitted to state a material fact required to be stated or incorporated by reference therein or necessary in order to make the statements therein, in light ). As of the circumstances under which they were madedate of this Agreement, not misleading. The Company has heretofore made available there are no outstanding or promptly will make available to unresolved comments in comment letters received from the Purchaser, a complete and correct copy of any amendment SEC with respect to the SEC Reports. .
(d) None of the Company’s Subsidiaries of the Company is required to file any forms, reports, statementsschedules, forms statements or other documents with the SEC.
(be) The SEC Reports contain audited consolidated balance sheets No executive officer of the Company and its Subsidiaries as has failed to make the certifications required of December 31 in each him or her under Section 302 or 906 of the years 1995 through 1998▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act with respect to any SEC Report, except as disclosed in certifications filed with the SEC Reports, and at the related audited consolidated statements time of incomefiling or submission of each such certification, statements of cash flow such certification was true and changes in Shareholders' equity of the Company accurate and its Subsidiaries for the fiscal years then ended, together complied with the respective reports thereon of KPMG LLP▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act. These audited financial statements of the Company were included or incorporated by reference in the SEC Reports (collectively, including the footnotes thereto, the "SEC Financial Statements"), were prepared in accordance with GAAP (except as otherwise stated in the SEC Financial Statements or in the related reports of the Company's independent accountants) and present fairly the consolidated financial position of the Company and its subsidiaries as at the dates thereof, and the results of operations, changes in financial position and statements of Shareholders' equity of the Company and its Subsidiaries for the periods indicated. No event has occurred since the Balance Sheet Date that would require a restatement of the SEC Financial Statements under GAAP other than by reason of a change in GAAP. The SEC Financial Statements reflect, and on the Closing Date will reflect, the interest of the Company in the assets, liabilities and operations of all Subsidiaries of the Company.
(c) Neither the Company nor any of its Subsidiaries executive officers has received notice from any material liabilityGovernmental Authority challenging or questioning the accuracy, obligation completeness, form or commitment manner of any nature whatsoever (whether known or unknown due or to become due, accrued, fixed, contingent, liquidated, unliquidated or otherwise) other than liabilities, obligations or commitments (i) which are accrued or reserved against in the consolidated balance sheet filing of the Company and its consolidated subsidiaries as of December 31, 1999 included in the Audited Financial Statements or reflected in the notes thereto, (ii)(x) which arose in the ordinary course of business since such date and (y) which do not or would not individually or in the aggregate have a Material Adverse Effect, or (iii) which are of the type that would not be required to be reflected on a consolidated balance sheet of the Company and its Subsidiaries or in the notes thereto if such balance sheet were prepared in accordance with GAAP as of the date thereof or as of the Closing Date, as the case may becertifications.
(d) Except as set forth on Schedule 5.25(d), since the date of the Company's 1999 Proxy Statement to the date hereof, the Company has not entered into or otherwise become obligated with respect to any transactions which would require disclosure pursuant to Item 404 of Regulation S-K in accordance with Items 7(b) or (c) of Schedule 14A under the Exchange Act were a Company proxy statement to be distributed as of the date hereof.
Appears in 1 contract
Sources: Merger Agreement (Imperva Inc)