This excerpt taken from the EBAY 8-K filed Apr 16, 2009.
2.4 SEC Filings; Financial Statements.
(a) The Company is, and has at all times since the initial public offering of the Company ADSs been, a foreign private issuer as defined in Rule 3b-4(c) under the Exchange Act. All statements, reports, schedules, forms and other documents required to have been filed or furnished by the Company with or to the SEC have been so filed or furnished on a timely basis. As of the time it was filed with or furnished to the SEC: (i) each of the Company SEC Documents complied as to form in all material respects with the applicable requirements of the Securities Act or the Exchange Act (as the case may be); and (ii) none of the Company SEC Documents contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, except to the extent corrected: (A) in the case of Company SEC Documents filed or furnished on or prior to the date of this Agreement that were amended or superseded on or prior to the date of this Agreement, by the filing or furnishing of the applicable amending or superseding Company SEC Document; and (B) in the case of Company SEC Documents filed or furnished after the date of this Agreement that are amended or superseded prior to the Acceptance Time, by the filing or furnishing of the applicable amending or superseding Company SEC Document. Each Company Certification is accurate and complete, and complied as to form and content with all applicable Legal Requirements in effect at the time such Company Certification was filed with or furnished to the SEC. The Company is not subject to any securities regulation or reporting regime in any jurisdiction, other than in Korea and the United States. No securities of the Company are listed on any exchange or traded on any organized market other than the Nasdaq Global Select Market.
(b) The Company maintains disclosure controls and procedures required by Rule 13a-15 or 15d-15 under the Exchange Act. Such disclosure controls and procedures are designed to ensure that all material information concerning the Company required to be disclosed by the Company in the reports that it is required to file, submit or furnish under the Exchange Act is recorded, processed, summarized and reported on a timely basis to the individuals responsible for the preparation of such reports. The Company has Made Available to Parent accurate and complete copies of all material documents reflecting such disclosure controls and procedures.
(c) The Company is in compliance in all material respects with: (i) the applicable rules and regulations of The Nasdaq Stock Market; and (ii) the applicable listing requirements of The Nasdaq Global Select Market, and has not received any notice asserting any non-compliance with the rules and regulations of The Nasdaq Stock Market or the listing requirements of The Nasdaq Global Select Market.
(d) The financial statements (including any related notes) contained or incorporated by reference in the Company SEC Documents: (i) complied as to form in all material respects with the published rules and regulations of the SEC applicable thereto; (ii) were prepared in accordance with US GAAP applied on a consistent basis throughout the periods covered (except as may be indicated in the notes to such financial statements); and (iii) fairly present, in all material respects, the financial position
of the Company as of the respective dates thereof and the results of operations and cash flows of the Company for the periods covered thereby. No financial statements of any Person other than the Company are required by US GAAP to be included in the financial statements of the Company.
(e) The Company has made available to Parent the audited balance sheet of the Company as of December 31, 2008 (the Company Balance Sheet) and the related audited statement of income, statement of changes in shareholders equity and statement of cash flows for the year ended December 31, 2008 (the Company Balance Sheet Date), together with the notes thereto. The financial statements referred to in this Section 2.4(e): (A) were prepared in accordance with US GAAP applied on a consistent basis throughout the periods covered (except as may be indicated in the notes to such financial statements); and (B) fairly present, in all material respects, the financial position of the Company as of the respective dates thereof and the results of operations and cash flows of the Company for the periods covered thereby.
(f) To the Knowledge of the Company, the Companys auditor has at all times since it was engaged as the Companys audit firm been: (i) a registered public accounting firm (as defined in Section 2(a)(12) of the Sarbanes-Oxley Act); (ii) independent with respect to the Company within the meaning of Regulation S-X under the Exchange Act; and (iii) with respect to services performed for the Company, in compliance with subsections (g) through (l) of Section 10A of the Exchange Act and the rules and regulations promulgated by the SEC and the Public Company Accounting Oversight Board thereunder.
(g) The Company maintains a system of internal accounting controls sufficient to provide reasonable assurance that: (i) transactions are executed in accordance with managements general or specific authorizations; (ii) transactions are recorded as necessary to permit preparation of financial statements in conformity with US GAAP and to maintain asset accountability; (iii) access to assets is permitted only in accordance with managements 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. To the Knowledge of the Company, without limiting the generality of the foregoing, there are no significant deficiencies or material weaknesses in the design or operation of the Companys internal controls over financial reporting that would reasonably be expected to adversely affect the ability of the Company to record, process, summarize and report financial information that have not been rectified. The Company has Made Available to Parent accurate and complete copies of all documents reflecting such internal accounting controls.
(h) The Company has not effected, entered into or created any securitization transaction or off-balance sheet arrangement (as defined in Item 303(c) of Regulation S-K under the Exchange Act).
(i) Except as set forth in Part 2.4(i) of the Disclosure Schedule, since January 1, 2006, no Legal Proceeding alleging or involving any credit card fraud or sale of counterfeit merchandise has been commenced or, to the Knowledge of the Company, threatened, against or involving the Company or any assets of the Company (other than complaints made in the ordinary course of business that in the aggregate are not material). Except as set forth in Part 2.4(i) of the Disclosure Schedule, to the Knowledge of the Company, since January 1, 2006, no Legal Proceeding alleging or involving any credit card fraud or sale of counterfeit merchandise has been commenced or threatened against or involving any Company Associate who was an employee, consultant or independent contractor of the Company at the time of such commencement or threat.
2.5 Absence of Changes. Except as set forth in Part 2.5 of the Company Disclosure Schedule, since the Company Balance Sheet Date:
(a) there has not been any Company Material Adverse Effect, and no event has occurred or circumstance has arisen that, in combination with any other events or circumstances, would have or would reasonably be expected to have or result in a Company Material Adverse Effect;
(b) there has not been any material loss, damage or destruction to, or any material interruption in the use of, any of the material assets of the Company (whether or not covered by insurance);
(c) the Company has not declared, accrued, set aside or paid any dividend or made any other distribution in respect of any shares of capital stock or other securities;
(d) the Company has not amended or waived any of its rights or obligations under, or permitted the acceleration of vesting under: (i) any provision of any Contract evidencing any outstanding Company Option; or (ii) any other Contract evidencing or relating to any equity award (whether payable in cash or stock);
(e) there has been no amendment to the Articles of Incorporation of the Company, and, other than the Contemplated Transactions, the Company has not effected or been a party to any merger, consolidation, share exchange, business combination, recapitalization, reclassification of shares, stock split, reverse stock split, issuance of bonus shares or similar transaction;
(f) the Company has not: (i) adopted, established or entered into any Company Employee Plan or Company Employee Agreement; (ii) caused or permitted any Company Employee Plan to be amended in a manner that would result in a material increase in the benefits to be paid or provided thereunder; or (iii) materially increased the amount of compensation or remuneration payable to any of its directors, officers or other employees at the level of Director or above;
(g) through the date of this Agreement, the Company has not waived any standstill provision;
(h) the Company has not changed any of its methods of accounting or accounting practices in any material respect, other than as disclosed in the footnotes to the financial statements included in the annual report of the Company on Form 20-F filed with the SEC on March 16, 2009;
(i) the Company has not made any material Tax election or asked for or received any ruling in respect of any Tax, or entered into any Contract with any Governmental Body with respect to any Tax;
(j) the Company has not entered into any material transaction or taken any other material action outside the ordinary course of business; and
(k) the Company has not agreed or committed to take any of the actions referred to in clauses (c) through (j) above.
2.6 Title to Assets. The Company owns, and has good and valid title to, all material assets purported to be owned by it, including all assets reflected on the Company Balance Sheet (except for assets sold or otherwise disposed of since the date of the Company Balance Sheet). To the Knowledge of the Company, all of said assets are owned by the Company free and clear of any Encumbrances, except
for: (a) any lien for current taxes not yet due and payable; (b) liens for which an adequate reserve for payment has been established on the Company Balance Sheet; (c) liens that have arisen in the ordinary course of business and that do not (in any case or in the aggregate) materially detract from the value of the assets subject thereto or materially impair the operations of the Company; and (d) liens described in Part 2.6 of the Company Disclosure Schedule. The Company is the lessee of, and holds valid leasehold interests in, all material assets purported to have been leased by it, including all material assets reflected as leased on the Company Balance Sheet (it being understood that the representations and warranties contained in this Section 2.6 do not apply to ownership of, or Encumbrances with respect to, Intellectual Property, which matters are addressed in the representations and warranties set forth in Section 2.8).