Fillable Printable Affidavit of No Prosecution Form Sample
Fillable Printable Affidavit of No Prosecution Form Sample
Affidavit of No Prosecution Form Sample
UNITED STATES
OF
AMERICA
SECURITIES
AND EXCHANGE
COMMISSION
NON-PROSECUTION AGREEMENT
1.
In connection with an investigation relating to financial fraud at Carter's, Inc. that
occurred between at least 2004 and 2009 ("Investigation"), the Division
of
Enforcement
("Division")
of
the United States Securities and Exchange Commission ("Commission")
and Carter's, Inc. ("Respondent") enter into their non-prosecution agreement
("Agreement") on the following terms and conditions:
COOPERATION
2.
The Respondent, a corporation organized and operating under the laws
of
Delaware, agrees to cooperate fully and truthfully in the Investigation and any other
related enforcement litigation or proceeding to which the Commission is a party (the
"Proceedings"), regardless
of
the time period in which the cooperation
is
required. In
addition, the Respondent agrees to cooperate fully and truthfully, when directed by the
Division's staff, in an official investigation or proceeding by any federal, state, or self-
regulatory organization ("Other Proceedings"). The full, truthful, and continuing
cooperation
of
the Respondent shall include, but not be limited to:
a.
producing, in a responsive and prompt manner, all non-privileged
documents, information, and other materials to the Commission as requested by the
Division's staff, wherever located, in the possession, custody, or control
of
the
Respondent; and
b.
using its best-efforts to secure the full, truthful, and continuing
cooperation, as defined in Paragraph 3,
of
current and former directors, officers,
employees and agents, .including making these persons available, when requested to do
so
by the Division's staff, at its expense, for interviews and the provision
of
testimony in the
investigation, trial and other judicial proceedings in connection with the Proceedings or
Other Proceedings.
3. The full, truthful, and continuing cooperation
of
each person described in
Paragraph 2 above will be subject to the procedures and protections
of
this paragraph,
and shall include, but not be limited to:
a.
producing all non-privileged documents and other materials as requested
by the Division's staff;
b.
appearing for interviews, at such times and places, as requested by the
Division's staff;
c.
responding to all inquiries, when requested to do so by the Division's
staff, in connection
with the Proceedings or Other Proceedings; and
1
d. testifying at trial and otherjudicial proceedings, when requested to do so
by the Division's staff, in connection with the Proceedings
or
Other Proceedings.
PUBLIC STATEMENTS
4. After this Agreement is executed, the Respondent agrees not to take any.action
or
to make or permit any public statement through present or future attorneys, employees,
agents, or other persons authorized to speak for it, except in legal proceedings in which
the Commission is not a party, denying, directly
or
indirectly, the factual basis
of
any
aspect
of
this Agreement. This paragraph is not intended to apply to any statement made
by an individual in the course
of
any criminal, civil, or regulatory proceeding initiated by
the government or self-regulatory organization against such individual, unless such
individual is speaking on behalf
of
the Respondent.
If
it is determined by the
Commission that a public statement by the Respondent
or
any related person contradicts
in whole
or
in part this Agreement, at its sole discretion,
the
Commission may bring an
enforcement action in accordance with Paragraphs 7 through
9.
5.
Prior to issuing a press release concerning this Agreement, the Respondent agrees
to have the text
of
the release approved by the staff
of
the Division.
SERVICE
6. The Respondent agrees to serve by hand delivery
or
by next-day mail all written
notices and correspondence required
by
or
related to this Agreement to Stephen
E.
Donahue, Assistant Regional Director, 3475 Lenox Rd., Suite 500, Atlanta, Georgia
30326, (404) 842-7618, unless otheIWise directed in writing by the staff
ofthe
Division.
VIOLA
nON
OF AGREEMENT
7.
The Respondent understands and agrees that it shall be a violation
of
this
Agreement
if
it knowingly provides false
or
misleading information
or
materials in
cOlU1ection
with the Proceedings or Other Proceedings. In the event
of
such misconduct,
the Division will advise the Commission
of
the Respondent's misconduct and may make
a criminal referral for providing false information (18 U.S.C. § 1001), contempt (18
U.S.C.
§§
401-402) and/or obstructing justice (18 U.S.C. § 1503 et seq.).
8.
The Respondent understands and agrees that, should the Division detennine that
the Respondent has failed to comply with any term
or
condition
of
this Agreement, the
Division will notify the Respondent
or
its counsel
of
the fact and provide an opportunity
for the Respondent to make a Wells submission pursuant to the Securities Act
of
1933
Release No. 5310. Under these circumstances, the Division may,
in its sole discretion
and not subject to judicial review, recommend to the Commission an enforcement action
against the Respondent for any securities law violations, including, but not limited to, the
substantive offenses relating to the Investigation.
2
9. The Respondent understands and agrees that in any future enforcement action
resulting from its violation
of
the Agreement, any documents, statements, information,
testimony,
or
evidence provided by it during the Proceedings or Other Proceedings, and
any leads derived there from, may
be
used against it in future legal proceedings.
10.
The Respondent understands and agrees that any enforcement action brought by
the Commission following the Respondent's violation
of
the Agreement that would not
have been time-barred by the applicable statute
of
limitations
if
brought on the date
of
the
execution
of
this Agreement, may be commenced against the Respondent,
notwithstanding the expiration
of
the statute
of
limitations between the signing
of
this
Agreement and the commencement
of
such action.
COMPLIANCE WITH AGREEMENT
II.
Subject to the full, truthful, and continuing cooperation
of
the Respondent, as
described in Paragraphs 2 and 3, and compliance with all obligations in the Agreement,
the Commission agrees not to bring any enforcement action or proceeding against the
Respondent arising from the Investigation. This agreement should not, however, be
deemed exoneration
of
the Respondent or be construed
as
a finding by the Commission
that no violations
of
the federal securities laws have occurred.
12. The Respondent understands and agrees that this Agreement does not bind other
federal, state or self-regulatory organizations, but the Commission may, at its discretion,
issue a letter to these organizations detailing the fact, manner, and extent
of
its
cooperation during the Proceedings or Other Proceedings, upon the written request
of
the
Respondent.
13.
The Respondent understands and agrees that
if
it sells, merges,
or
transfers all or
substantially all
of
its business operations as they exist as
of
the date
of
this Agreement, .
whether such a sale is structured as a stock
or
asset sale, merger, or transfer during the
Deferred
Period~
it shall include in any contract for sale, merger, or transfer a provision
binding the purchasers
or
successors in interest to the obligations set forth in this
Agreement. Furthermore, the protections arising from this Agreement will not apply to
purchasers
or
successors in interest unless such purchasers or successors enter into a
written agreement, on terms acceptable to the Division, agreeing to assume all the
obligations set forth in this Agreement.
14.
The Respondent understands and agrees that the Agreement only provides
protection against enforcement actions arising from the Investigation and does not relate
to any other violations or any individual or entity other than the Respondent.
3
VOLUNTARY AGREEMENT
15.
The Respondent's decision to enter into this Agreement is freely and voluntarily
made and is not the result
of
force, threats, assurances, promises, or representations other
than those contained in this Agreement.
16.
The Respondent read and understands this Agreement. Furthennore, the
Respondent has reviewed all legal and factual aspects
of
this matter with its attorney and
is fully satisfied with its attorney's legal representation. The Respondent has thoroughly
reviewed this Agreement with its attorney and has received satisfactory explanations
concerning each paragraph
of
the Agreement. After conferring with its attorney and
considering all available alternatives, the Respondent has made a knowing decision to
enter into the Agreement.
17.
The Respondent represents that its Board
of
Directors has duly authorized, in a
specific resolution attached hereto as Exhibit A, the execution and delivery
of
this
Agreement, and that the person signing this Agreement has authority to bind the
Respondent.
ENTIRETY OF AGREEMENT
18.
This Agreement constitutes the entire agreement between the Commission and the
Respondent, and supersedes all prior understandings,
if
any, whether oral or written,
relating to the subj ect matter herein.
19.
This Agreement cannot be modified except in writing, signed by the Respondent
and a representative
of
the Commission.
20. In the event an ambiguity
or
a question
of
intent or interpretation arises, this
Agreement shall be construed as
if
drafted jointly by the parties hereto, and no
preswnption
or
burden
of
proof shall arise favoring
or
disfavoring the Commission or the
Respondent by virtue
of
the authorship
of
any
of
the provisions
of
the Agreement.
4
The signatories below acknowledge acceptance
of
the foregoing tenns and conditions.
~~~-
Brendan M. Gibbons
Senior Vice President Legal
& Corporate
Affairs, General Counsel and Secretary
Carter's, Inc.
On' ;
I ,
~
2010. Brendan
M.
Gibbons, a person known to me, personally
appeared before me and acknowledged executing the foregoing agreement with full
authority to do so on behalf
of
Carter's, Inc. as its Senior Vice President Legal &
Corporate Affairs, General Counsel and Secretary, and pursuant to the attached
Resolution
of
the Board
of
Directors.
I
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Notary Public
State:
GW
TAMARA
A
DOWELL
Commission number:
NOTNff
PUBLIC
Commission expiration:
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HENRV
COUNTY.
GEORGAA
MY COMMISSION EXPIRES
04127/2014
RESPONDENT'S COUNSEL
Approved as to form:
__
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V 10
~e
Ropes
& Gray LLP
Prudential Tower, 800 Boylston Street
Boston, Massachusetts 02199-3600
(617) 951-7776
SECURITIES AND EXCHANGE COMMISSION
DIVISION OF ENFORCEMENT
!dL
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~Daie
William
P.
Hicks
Associate Regional Director
Attachment:
Exhibit A (Certificate
of
Corporate Resolution)
5
Randall . Bodner
EXHIBIT A
CARTER'S,
INC.
CERTIFICATE
OF
CORPORATE
RESOLUTION
CARTER'S,
INC.
CERTIFICATE
OF
CORPORATE
RESOLUTION
I, Brendan
M.
Gibbons, do hereby certify that I am the duly elected, qualified and acting
Secretary
of
Carter's, Inc. ("Carter's"), a children's apparel company, and that the following is a
complete and accurate copy
of
a resolution adopted by the Board
of
Directors
of
Carter's at a
meeting held on November 11,2010 at which a quorum was present and resolved as follows:
RESOLVED:
That Michael
D.
Casey, Chairman and Chief Executive Officer, and
Brendan
M.
Gibbons, an Officer
of
this company, each be and hereby is authorized to act
on behalf
of
the company, and in his sole discretion, to negotiate, approve, and execute
the Non-Prosecution Agreement, attached hereto, with the United States Securities and
Exchange Commission ("Commission") in connection with the investigation conducted
by the Commission; in connection with this, each aforementioned Officer be and hereby
is authorized to undertake such actions as he may deem necessary and advisable,
including the execution
of
such documentation as may be required by the Commission, in
order to carry out the foregoing.
I further certify that the aforesaid resolution has not been amended or revoked in any respect and
remains in full force and effect.
-
IN
WITNESS WHEREOF, I have executed this Certificate as a sealed instrument this
~day
of
November 2010.
-~
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j
By:~.d4~
Brendan
M.
Gibbons /
Senior Vice President Legal
& Corporate Affairs
General Counsel and Secretary
Carter's, Inc.
COMMONWEAL
TH
OF
MASSACHUSETTS
}
}
SS:
COUNTY
OF
SUFFOLK
}
The
.g
insthnnent was acknowledged before me this
15"
day
of
November, 2010,
by
'Br
Q,
l b
hems
who is personally known to me or who has produced a Georgia
driver's license as identification and who did take an oath.
Notary Public
~-
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State
of
Massachusetts
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Commission Number
-+.
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Commission
Expirati~ll
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