Delivery of Financial Statements. The Company shall deliver to each Major Investor, provided that the Board of Directors has not reasonably determined that such Major Investor is (or, in the case of a Major Investor that is an individual, is employed by or serves as a consultant to) a competitor of the Company: (a) as soon as practicable, but in any event within one hundred twenty (120) days after the end of each fiscal year of the Company, (i) a balance sheet as of the end of such year, (ii) statements of income and of cash flows for such year, and a comparison between (x) the actual amounts as of and for such fiscal year and (y) the comparable amounts for the prior year and as included in the Budget (as defined in Subsection 3.1(e)) for such year, with an explanation of any material differences between such amounts and a schedule as to the sources and applications of funds for such year, and (iii) a statement of stockholders’ equity as of the end of such year, all such financial statements audited and certified by independent public accountants selected by the Company and approved by the Board of Directors, including the Preferred Directors; (b) as soon as practicable, but in any event within forty-five (45) days after the end of each of the first three (3) quarters of each fiscal year of the Company, unaudited statements of income and of cash flows for such fiscal quarter, and an unaudited balance sheet and a statement of stockholders’ equity as of the end of such fiscal quarter, all prepared in accordance with GAAP (except that such financial statements may (i) be subject to normal year-end audit adjustments and (ii) not contain all notes thereto that may be required in accordance with GAAP); (c) as soon as practicable, but in any event within forty-five (45) days after the end of each of the first three (3) quarters of each fiscal year of the Company, a statement showing the number of shares of each class and series of capital stock and securities convertible into or exercisable for shares of capital stock outstanding at the end of the period, the Common Stock issuable upon conversion or exercise of any outstanding securities convertible or exercisable for Common Stock and the exchange ratio or exercise price applicable thereto, and the number of shares of issued stock options and stock options not yet issued but reserved for issuance, if any, all in sufficient detail as to permit any Major Investor to calculate its percentage equity ownership in the Company, and certified by the chief financial officer or chief executive officer of the Company as being true, complete and correct; (d) as soon as practicable, but in any event thirty (30) days before the end of each fiscal year, a budget and business plan for the next fiscal year (collectively, the “Budget”), approved by the Board of Directors and prepared on a quarterly basis, including balance sheets, income statements, and statements of cash flow for such quarters and, promptly after prepared, any other budgets or revised budgets prepared by the Company; and (e) such other information relating to the financial condition, business, prospects or corporate affairs of the Company as any Major Investor may from time to time reasonably request; provided, however, that the Company shall not be obligated under this Subsection 3.1 to provide information (i) that the Company reasonably determines in good faith to be a trade secret or confidential information (unless covered by an enforceable confidentiality agreement, in form acceptable to the Company) or (ii) the disclosure of which would adversely affect the attorney-client privilege between the Company and its counsel. If, for any period, the Company has any subsidiary whose accounts are consolidated with those of the Company, then in respect of such period the financial statements delivered pursuant to the foregoing sections shall be the consolidated and consolidating financial statements of the Company and all such consolidated subsidiaries. Notwithstanding anything else in this Subsection 3.1 to the contrary, the Company may cease providing the information set forth in this Subsection 3.1 during the period starting with the date sixty (60) days before the Company’s good-faith estimate of the date of filing of a registration statement if it reasonably concludes it must do so to comply with the SEC rules applicable to such registration statement and related offering; provided that the Company’s covenants under this Subsection 3.1 shall be reinstated at such time as the Company is no longer actively employing its commercially reasonable efforts to cause such registration statement to become effective.
Appears in 4 contracts
Sources: Investors’ Rights Agreement, Investors’ Rights Agreement (Evelo Biosciences, Inc.), Investors’ Rights Agreement (Evelo Biosciences, Inc.)
Delivery of Financial Statements. The Company shall deliver to each Major the Investor, provided that the Board of Directors has not reasonably determined that such Major Investor is (or, in the case of a Major Investor that is an individual, is employed by or serves as a consultant to) a competitor of the Company:
(a) : as soon as practicable, but in any event within one hundred twenty sixty (12060) days after the end of each fiscal year of the Company, (i) a balance sheet as of the end of such year, (ii) statements of income and of cash flows for such year, and a comparison between (x) the actual amounts as of and for such fiscal year and (y) the comparable amounts for the prior year and as included in the Budget (as defined in Subsection 3.1(e)) for such year, with an explanation of any material differences between such amounts and a schedule as to the sources and applications of funds for such year, and (iii) a statement of stockholders’ equity as of the end of such year, all such financial statements audited and certified by independent public accountants of nationally recognized standing selected by the Company and approved by the Board of Directors, including the Preferred Directors;
(b) Company; as soon as practicable, but in any event within fortytwenty-five (4525) days after the end of each of the first three (3) quarters of each fiscal year of the Company, unaudited statements of income and of cash flows for such fiscal quarter, and an unaudited balance sheet and a statement of stockholders’ equity as of the end of such fiscal quarter, all prepared in accordance with GAAP (except that such financial statements may (i) be subject to normal year-end audit adjustments and (ii) not contain all notes thereto that may be required in accordance with GAAP);
(c) ; as soon as practicable, but in any event within fortytwenty-five (4525) days after the end of each of the first three (3) quarters of each fiscal year of the Company, a statement showing the number of shares of each class and series of capital stock and securities convertible into or exercisable for shares of capital stock outstanding at the end of the period, the Common Stock issuable upon conversion or exercise of any outstanding securities convertible or exercisable for Common Stock and the exchange ratio or exercise price applicable thereto, and the number of shares of issued stock options and stock options not yet issued but reserved for issuance, if any, all in sufficient detail as to permit any Major the Investor to calculate its respective percentage equity ownership in the Company, and certified by the chief financial officer or chief executive officer of the Company as being true, complete complete, and correct;
; as soon as practicable, but in any event within thirty (d30) days of the end of each month, an unaudited income statement and statement of cash flows for such month, and an unaudited balance sheet and statement of stockholders’ equity as of the end of such month, all prepared in accordance with GAAP (except that such financial statements may (i) be subject to normal year-end audit adjustments and (ii) not contain all notes thereto that may be required in accordance with GAAP); as soon as practicable, but in any event thirty (30) days before the end of each fiscal year, a budget and business plan for the next fiscal year (collectively, the “Budget”), approved by the Board of Directors and prepared on a quarterly monthly basis, including balance sheets, income statements, and statements of cash flow for such quarters months and, promptly after prepared, any other budgets or revised budgets prepared by the Company; and
with respect to the financial statements called for in Subsection 3.1(a), Subsection 3.1(b) and Subsection 3.1(d), an instrument executed by the chief financial officer and chief executive officer of the Company certifying that such financial statements were prepared in accordance with GAAP consistently applied with prior practice for earlier periods (eexcept as otherwise set forth in Subsection 3.1(b) and Subsection 3.1(d)) and fairly present the financial condition of the Company and its results of operation for the periods specified therein; and such other information relating to the financial condition, business, prospects prospects, or corporate affairs of the Company as any Major the Investor may from time to time reasonably request; provided, however, that the Company shall not be obligated under this Subsection 3.1 to provide information (i) that the Company reasonably determines in good faith to be a trade secret or confidential information (unless covered by an enforceable confidentiality agreement, in form acceptable to the Company) or (ii) the disclosure of which would adversely affect the attorney-client privilege between the Company and its counsel. If, for any period, the Company has any subsidiary whose accounts are consolidated with those of the Company, then in respect of such period the financial statements delivered pursuant to the foregoing sections shall be the consolidated and consolidating financial statements of the Company and all such consolidated subsidiaries. Notwithstanding anything else in this Subsection 3.1 to the contrary, the Company may cease providing the information set forth in this Subsection 3.1 during the period starting with the date sixty (60) days before the Company’s good-faith estimate of the date of filing of a registration statement if it reasonably concludes it must do so to comply with the SEC rules applicable to such registration statement and related offering; provided that the Company’s covenants under this Subsection 3.1 shall be reinstated at such time as the Company is no longer actively employing its commercially reasonable efforts to cause such registration statement to become effective.
Appears in 4 contracts
Sources: Asset Purchase Agreement (U-Swirl, Inc.), Membership Interest Purchase Agreement (U-Swirl, Inc.), Asset Purchase Agreement (Rocky Mountain Chocolate Factory Inc)
Delivery of Financial Statements. The Company shall deliver to each Major the Investor, provided that the Board of Directors has not reasonably determined that such Major Investor is (or, in the case of a Major Investor that is an individual, is employed by or serves as a consultant to) a competitor of the Company:
(a) as soon as practicable, but in any event within one hundred twenty sixty (12060) days after the end of each fiscal year of the Company, (i) a balance sheet as of the end of such year, (ii) statements of income and of cash flows for such year, and a comparison between (x) the actual amounts as of and for such fiscal year and (y) the comparable amounts for the prior year and as included in the Budget (as defined in Subsection 3.1(e)) for such year, with an explanation of any material differences between such amounts and a schedule as to the sources and applications of funds for such year, and (iii) a statement of stockholders’ equity as of the end of such year, all such financial statements audited and certified by independent public accountants of nationally recognized standing selected by the Company and approved by the Board of Directors, including the Preferred DirectorsCompany;
(b) as soon as practicable, but in any event within fortytwenty-five (4525) days after the end of each of the first three (3) quarters of each fiscal year of the Company, unaudited statements of income and of cash flows for such fiscal quarter, and an unaudited balance sheet and a statement of stockholders’ equity as of the end of such fiscal quarter, all prepared in accordance with GAAP (except that such financial statements may (i) be subject to normal year-end audit adjustments and (ii) not contain all notes thereto that may be required in accordance with GAAP);
(c) as soon as practicable, but in any event within fortytwenty-five (4525) days after the end of each of the first three (3) quarters of each fiscal year of the Company, a statement showing the number of shares of each class and series of capital stock and securities convertible into or exercisable for shares of capital stock outstanding at the end of the period, the Common Stock issuable upon conversion or exercise of any outstanding securities convertible or exercisable for Common Stock and the exchange ratio or exercise price applicable thereto, and the number of shares of issued stock options and stock options not yet issued but reserved for issuance, if any, all in sufficient detail as to permit any Major the Investor to calculate its respective percentage equity ownership in the Company, and certified by the chief financial officer or chief executive officer of the Company as being true, complete complete, and correct;
(d) as soon as practicable, but in any event within thirty (30) days of the end of each month, an unaudited income statement and statement of cash flows for such month, and an unaudited balance sheet and statement of stockholders’ equity as of the end of such month, all prepared in accordance with GAAP (except that such financial statements may (i) be subject to normal year-end audit adjustments and (ii) not contain all notes thereto that may be required in accordance with GAAP);
(e) as soon as practicable, but in any event thirty (30) days before the end of each fiscal year, a budget and business plan for the next fiscal year (collectively, the “Budget”), approved by the Board of Directors and prepared on a quarterly monthly basis, including balance sheets, income statements, and statements of cash flow for such quarters months and, promptly after prepared, any other budgets or revised budgets prepared by the Company;
(f) with respect to the financial statements called for in Subsection 3.1(a), Subsection 3.1(b) and Subsection 3.1(d), an instrument executed by the chief financial officer and chief executive officer of the Company certifying that such financial statements were prepared in accordance with GAAP consistently applied with prior practice for earlier periods (except as otherwise set forth in Subsection 3.1(b) and Subsection 3.1(d)) and fairly present the financial condition of the Company and its results of operation for the periods specified therein; and
(eg) such other information relating to the financial condition, business, prospects prospects, or corporate affairs of the Company as any Major the Investor may from time to time reasonably request; provided, however, that the Company shall not be obligated under this Subsection 3.1 to provide information (i) that the Company reasonably determines in good faith to be a trade secret or confidential information (unless covered by an enforceable confidentiality agreement, in form acceptable to the Company) or (ii) the disclosure of which would adversely affect the attorney-client privilege between the Company and its counsel. If, for any period, the Company has any subsidiary whose accounts are consolidated with those of the Company, then in respect of such period the financial statements delivered pursuant to the foregoing sections shall be the consolidated and consolidating financial statements of the Company and all such consolidated subsidiaries. Notwithstanding anything else in this Subsection 3.1 to the contrary, the Company may cease providing the information set forth in this Subsection 3.1 during the period starting with the date sixty (60) days before the Company’s good-faith estimate of the date of filing of a registration statement if it reasonably concludes it must do so to comply with the SEC rules applicable to such registration statement and related offering; provided that the Company’s covenants under this Subsection 3.1 shall be reinstated at such time as the Company is no longer actively employing its commercially reasonable efforts to cause such registration statement to become effective.
Appears in 4 contracts
Sources: Investor Rights Agreement (U-Swirl, Inc.), Investor Rights Agreement (U-Swirl, Inc.), Investor Rights Agreement (Rocky Mountain Chocolate Factory Inc)
Delivery of Financial Statements. The Company shall deliver to each Major Investor, ; provided that the Board of Directors has not reasonably determined that such Major Investor is a competitor of the Company (or, in the case of it being understood that a venture capital fund that is a Major Investor that is an individual, is employed by or serves as a consultant to) will not be determined to be a competitor of the Company:):
(a) as soon as practicable, but in any event within one hundred twenty ninety (12090) days after the end of each fiscal year of the Company, Company (i) a balance sheet as of the end of such year, (ii) statements of income and of cash flows for such year, and a comparison between (x) the actual amounts as of and for such fiscal year and (y) the comparable amounts for the prior year and as included in the Budget (as defined in Subsection 3.1(e)) for such year, with an explanation of any material differences between such amounts and a schedule as to the sources and applications of funds for such year, and (iii) a statement of stockholders’ equity as of the end of such year, all such financial statements audited and certified by independent public accountants of recognized standing selected by the Company and approved by the Company’s Board of Directors, including the Preferred Directors;
(b) as soon as practicable, but in any event within forty-five (45) days after the end of each of the first three (3) quarters of each fiscal year of the Company, unaudited statements of income and of cash flows for such fiscal quarter, and an unaudited balance sheet and a statement of stockholders’ equity as of the end of such fiscal quarter, all prepared in accordance with GAAP (except that such financial statements may (i) be subject to normal year-end audit adjustments adjustments; and (ii) not contain all notes thereto that may be required in accordance with GAAP);
(c) as soon as practicable, but in any event within forty-five (45) days after the end of each of the first three (3) quarters of each fiscal year of the Company, a statement showing the number of shares of each class and series of capital stock and securities convertible into or exercisable for shares of capital stock outstanding at the end of the period, the Common Stock issuable upon conversion or exercise of any outstanding securities convertible or exercisable for Common Stock and the exchange ratio or exercise price applicable thereto, and the number of shares of issued stock options and stock options not yet issued but reserved for issuance, if any, all in sufficient detail as to permit any the Major Investor Investors to calculate its their respective percentage equity ownership in the Company, and certified by the chief financial officer or chief executive officer of the Company as being true, complete complete, and correct;
(d) as soon as practicable, but in any event within thirty (30) days of the end of each month, an unaudited income statement and statement of cash flows for such month, and an unaudited balance sheet and statement of stockholders’ equity as of the end of such month, all prepared in accordance with GAAP (except that such financial statements may (i) be subject to normal year-end audit adjustments and (ii) not contain all notes thereto that may be required in accordance with GAAP);
(e) as soon as practicable, but in any event thirty (30) days before the end of each fiscal year, a budget and business plan for the next fiscal year (collectively, the “Budget”), approved by the Board of Directors and prepared on a quarterly monthly basis, including balance sheets, income statements, and statements of cash flow for such quarters months and, promptly after prepared, any other budgets or revised budgets prepared by the Company;
(f) with respect to the financial statements called for in Subsection 3.1(a), Subsection 3.1(b) and Subsection 3.1(d), an instrument executed by the chief financial officer and chief executive officer of the Company certifying that such financial statements were prepared in accordance with GAAP consistently applied with prior practice for earlier periods (except as otherwise set forth in Subsection 3.1(b) and Subsection 3.1(d)) and fairly present the financial condition of the Company and its results of operation for the periods specified therein; and
(eg) such other information relating to the financial condition, business, prospects prospects, or corporate affairs of the Company as any Major Investor may from time to time reasonably request; provided, however, that the Company shall not be obligated under this Subsection 3.1 to provide information (i) that the Company reasonably determines in good faith to be a trade secret or confidential information (unless covered by an enforceable confidentiality agreement, in a form acceptable to the Company) ); or (ii) the disclosure of which would adversely affect the attorney-client privilege between the Company and its counsel. If, for any period, the Company has any subsidiary whose accounts are consolidated with those of the Company, then in respect of such period the financial statements delivered pursuant to the foregoing sections shall be the consolidated and consolidating financial statements of the Company and all such consolidated subsidiaries. Notwithstanding anything else in this Subsection 3.1 to the contrary, the Company may cease providing the information set forth in this Subsection 3.1 during the period starting with the date sixty thirty (6030) days before the Company’s good-faith estimate of the date of filing of a registration statement if it reasonably concludes it must do so to comply with the SEC rules applicable to such registration statement and related offering; provided that the Company’s covenants under this Subsection 3.1 shall be reinstated at such time as the Company is no longer actively employing its commercially reasonable efforts to cause such registration statement to become effective.
Appears in 4 contracts
Sources: Investors’ Rights Agreement (Winc, Inc.), Investors’ Rights Agreement (Winc, Inc.), Investors’ Rights Agreement (Winc, Inc.)
Delivery of Financial Statements. The At any time when at least 150,000 shares of Preferred Stock or Common Stock issued upon conversion of such Preferred Stock (as adjusted for any stock split, stock dividend, combination, or other recapitalization or reclassification effected after the date hereof) are outstanding, the Company shall deliver to each Major InvestorInvestor the following, provided that the Board of Directors has not reasonably determined that such Major Investor is a competitor of the Company, and provided, further, that any Major Investor who is an investment firm will (oras well as, in the case of a Major Investor that is an individualeach of Temasek, is employed by or serves as a consultant toAmerican General Life Insurance Company and American Home Assurance Company, its Affiliates) not be deemed a competitor for purposes of the Companythis Section 3.1:
(a) as soon as practicable, but in any event within one hundred twenty (120) days after the end of each fiscal year of the Company, Company (i) a balance sheet as of the end of such year, (ii) statements of income and of cash flows for such year, and a comparison between (x) the actual amounts as of and for such fiscal year and (y) the comparable amounts for the prior year and as included in the Budget (as defined in Subsection 3.1(e)) for such year, with an explanation of any material differences between such amounts and a schedule as to the sources and applications of funds for such year, and (iii) a statement of stockholders’ equity as of the end of such year, all such financial statements audited and certified by independent public accountants of nationally recognized standing selected by the Company and approved by with the approval of the Board of Directors, including the Preferred Directors;
(b) as soon as practicable, but in any event within forty-five (45) days after the end of each of the first three (3) quarters of each fiscal year of the Company, unaudited statements of income and of cash flows for such fiscal quarter, and an unaudited balance sheet and a statement of stockholders’ equity as of the end of such fiscal quarter, all prepared in accordance with GAAP (except that such financial statements may (i) be subject to normal year-end audit adjustments adjustments; and (ii) not contain all notes thereto that may be required in accordance with GAAP);
(c) as soon as practicable, but in any event within forty-five (45) days after the end of each of the first three (3) quarters of each fiscal year of the Company and within one hundred twenty (120) days after the end of each fiscal year of the Company, a statement showing the number of shares of each class and series of capital stock and securities convertible into or exercisable for shares of capital stock outstanding at the end of the period, the Common Stock issuable upon conversion or exercise of any outstanding securities convertible or exercisable for Common Stock and the exchange ratio or exercise price applicable thereto, and the number of shares of issued stock options and stock options not yet issued but reserved for issuance, if any, all in sufficient detail as to permit any the Major Investor Investors to calculate its their respective percentage equity ownership in the Company, and certified by the chief financial officer or chief executive officer of the Company as being true, complete complete, and correct;
(d) as soon as practicable, but in any event within thirty (30) days of the end of each month, an unaudited income statement and statement of cash flows for such month, and an unaudited balance sheet and statement of stockholders’ equity as of the end of such month, all prepared in accordance with GAAP (except that such financial statements may (i) be subject to normal year-end audit adjustments and (ii) not contain all notes thereto that may be required in accordance with GAAP);
(e) as soon as practicable, but in any event thirty (30) days before the end of each fiscal year, a budget and business plan for the next fiscal year (collectively, the “Budget”), approved by the Board of Directors and prepared on a quarterly monthly basis, including balance sheets, income statements, and statements of cash flow for such quarters months and, promptly after prepared, any other budgets or revised budgets prepared by the Company;
(f) with respect to the financial statements called for in Subsection 3.1(a), Subsection 3.1(b) and Subsection 3.1(d), an instrument executed by the chief financial officer and chief executive officer of the Company certifying that such financial statements were prepared in accordance with GAAP consistently applied with prior practice for earlier periods (except as otherwise set forth in Subsection 3.1(b) and Subsection 3.1(d)) and fairly present in all material respects the financial condition of the Company and its results of operation for the periods specified therein; and
(eg) such other information relating to the financial condition, business, prospects prospects, or corporate affairs of the Company as any Major Investor may from time to time reasonably request; provided, however, that the Company shall not be obligated under this Subsection 3.1 to provide information (i) that the Company reasonably determines in good faith to be a trade secret or confidential information (unless covered by an enforceable confidentiality agreement, in a form acceptable to the Company) ); or (ii) the disclosure of which would adversely affect the attorney-client privilege between the Company and its counsel. If, for any period, the Company has any subsidiary whose accounts are consolidated with those of the Company, then in respect of such period the financial statements delivered pursuant to the foregoing sections shall be the consolidated and consolidating financial statements of the Company and all such consolidated subsidiaries. Notwithstanding anything else in this Subsection 3.1 to the contrary, the Company may cease providing the information set forth in this Subsection 3.1 during the period starting with the date sixty thirty (6030) days before the Company’s good-faith estimate of the date of submission or filing of a registration statement if it reasonably concludes it must do so to comply with the SEC rules applicable to such registration statement and related offering; provided that the Company’s covenants under this Subsection 3.1 shall be reinstated at such time as the Company is no longer actively employing its commercially reasonable efforts to cause such registration statement to become effective.
Appears in 3 contracts
Sources: Investors’ Rights Agreement (SQZ Biotechnologies Co), Investors’ Rights Agreement (SQZ Biotechnologies Co), Investors’ Rights Agreement (SQZ Biotechnologies Co)
Delivery of Financial Statements. The Company shall deliver to each Major Investor, provided that the Board of Directors has not reasonably determined that such Major Investor is (or, in the case of not a Major Investor that is an individual, is employed by or serves as a consultant to) a competitor Competitor of the Company:
(a) as soon as practicable, but in any event within one hundred twenty ninety (12090) days after the end of each fiscal year of the Company, (i) a balance sheet as of the end of such year, ; (ii) statements of income and of cash flows for such year, and a comparison between (x) the actual amounts as of and for such fiscal year and (y) the comparable amounts for the prior year and as included in the Budget (as defined in Subsection Section 3.1(e)) for such year, with an explanation of any material differences between such amounts and a schedule as to the sources and applications of funds for such year, ; and (iii) a statement of stockholders’ equity as of the end of such year, all such financial statements audited and certified by independent public accountants of nationally recognized standing selected by the Company and approved by the Board of Directors, including the Preferred DirectorsCompany;
(b) as soon as practicable, but in any event within forty-forty five (45) days after the end of each of the first three (3) quarters of each fiscal year of the Company, unaudited statements of income and of cash flows for such fiscal quarter, and an unaudited balance sheet and a statement of stockholders’ equity as of the end of such fiscal quarter, all prepared in accordance with GAAP (except that such the financial statements report may (i) be subject to normal year-end audit adjustments and (ii) not contain all notes thereto that may be required in accordance with GAAP);
(c) as soon as practicable, but in any event within forty-five (45) days after the end of each of the first three (3) quarters of each fiscal year of the Company, a statement showing the number of shares of each class and series of capital stock and securities convertible into or exercisable for shares of capital stock outstanding at the end of the period, the Common Stock issuable upon conversion or exercise of any outstanding securities convertible or exercisable for Common Stock and the exchange ratio or exercise price applicable thereto, and the number of shares of issued stock options and stock options not yet issued but reserved for issuance, if any, all in sufficient detail as to permit any the Major Investor Investors to calculate its their respective percentage equity ownership in the Company, and certified on behalf of the Company by the chief financial officer or chief executive officer of the Company as being true, complete complete, and correct;
(d) as soon as practicable, but in any event within thirty (30) days after the end of each month, an unaudited income statement and statement of cash flows for such month, and an unaudited balance sheet and statement of stockholders’ equity as of the end of such month, all prepared in accordance with GAAP (except that the financial report may (i) be subject to normal year-end audit adjustments and (ii) not contain all notes thereto that may be required in accordance with GAAP);
(e) as soon as practicable, but in any event thirty (30) days before the end of each fiscal year, a budget and business plan for the next fiscal year (collectively, the “Budget”), approved by the Board of Directors and prepared on a quarterly monthly basis, including balance sheets, income statements, and statements of cash flow for such quarters months and, promptly after prepared, any other budgets or revised budgets prepared by the Company;
(f) with respect to the financial statements called for in Section 3.1(a), Section 3.1(b) and Section 3.1(d), an instrument executed on behalf of the Company by the chief operating officer and chief executive officer of the Company certifying that such financial statements were prepared in accordance with GAAP consistently applied with prior practice for earlier periods (except as otherwise set forth in Section 3.1(b) and Section 3.1(d)) and fairly present the financial condition of the Company and its results of operation for the periods specified therein; and
(eg) such other information relating to the financial condition, business, prospects prospects, or corporate affairs of the Company as any Major Investor may from time to time reasonably request; provided, however, that the Company shall not be obligated under this Subsection Section 3.1 to provide information (i) that the Company reasonably determines in good faith to be a trade secret or confidential information (unless covered by an enforceable confidentiality agreement, in form acceptable to the Company) or (ii) the disclosure of which would adversely affect the attorney-client privilege between the Company and its counsel. If, for any period, the Company has any subsidiary whose accounts are consolidated with those of the Company, then in respect of such period the financial statements delivered pursuant to the foregoing sections shall be the consolidated and consolidating financial statements of the Company and all such consolidated subsidiaries. Notwithstanding anything else in this Subsection Section 3.1 to the contrary, the Company may cease providing the information set forth in this Subsection Section 3.1 during the period starting with the date sixty (60) days before the Company’s good-faith estimate of the date of filing of a registration statement if it reasonably concludes it must do so to comply with the SEC rules applicable to such registration statement and related offering; provided that the Company’s covenants under this Subsection Section 3.1 shall be reinstated at such time as the Company is no longer actively employing its commercially reasonable efforts to cause such registration statement to become effective.
Appears in 3 contracts
Sources: Investors’ Rights Agreement, Investors’ Rights Agreement (Allena Pharmaceuticals, Inc.), Investors’ Rights Agreement (Allena Pharmaceuticals, Inc.)
Delivery of Financial Statements. The So long as there are outstanding shares of Preferred Stock and until the consummation of a Qualified IPO, the Company shall deliver to each Major Investor, provided that the Board of Directors has not reasonably determined that such Major Investor is (or, in the case of a Major Investor that is an individual, is employed by or serves as a consultant to) a competitor of the CompanyCompetitor:
(a) as soon as practicable, but in any event within one hundred twenty eighty (120180) days after the end of each fiscal year of the Company, Company (i) a an audited balance sheet as of the end of such year, (ii) audited statements of income income, retained earnings and of cash flows for such year, and a comparison between (x) the actual amounts as of and for such fiscal year and (y) the comparable amounts for the prior year and as included changes in the Budget (as defined in Subsection 3.1(e)) for such year, with an explanation of any material differences between such amounts and a schedule as to the sources and applications of funds financial position for such year, and (iii) a an audited statement of stockholders’ equity as of the end of such year, all such financial statements audited and certified by independent public accountants selected by the Company and approved by the Board of Directors, including the Preferred Directors;
(b) as soon as practicable, but in any event within forty-five thirty (4530) days after the end of each of the first three (3) quarters of quarter each fiscal year of the Company, unaudited statements of income and of cash flows for such fiscal quarter, and an unaudited balance sheet and a statement of stockholders’ equity as of the end of such fiscal quarter, all prepared in accordance with GAAP (except that such financial statements may (i) be subject to normal year-end audit adjustments adjustments; and (ii) not contain all notes thereto that may be required in accordance with GAAP);; and
(c) as soon as practicable, but in any event within forty-five (45) days after the end of each of the first three (3) quarters quarter of each fiscal year of the Company, a statement showing the number of shares of each class and series of capital stock and securities convertible into or exercisable for shares of capital stock outstanding at the end of the period, the Common Stock issuable upon conversion or exercise of any outstanding securities convertible or exercisable for Common Stock and the exchange ratio or exercise price applicable thereto, and the number of shares of issued stock options and stock options not yet issued but reserved for issuance, if any, all in sufficient detail as to permit any the Major Investor Investors to calculate its their respective percentage equity ownership in the Company, and certified by the chief financial officer or chief executive officer of the Company as being true, complete complete, and correct;.
(d) as soon as practicable, but in any event thirty (30) days before the end of each fiscal year, practicable upon a budget and business plan for the next fiscal year (collectivelyrequest by a Major Investor, the “Budget”)Company shall use its reasonable commercial efforts to promptly respond or cause its transfer agent, approved by the Board if applicable, to promptly respond, to requests for information made on behalf of Directors and prepared on a quarterly basis, including balance sheets, income statements, and statements of cash flow for such quarters and, promptly after prepared, any other budgets or revised budgets prepared by the Company; and
(e) such other information relating to the financial condition, business, prospects or corporate affairs of the Company as any Major Investor may from time relating to time reasonably request(a) accounting or securities law matters required in connection an audit of the Major Investor or (b) the actual holdings of the Major Investor’s accounts, including in relation to the outstanding capital stock of the Company; provided, however, that the Company shall not be obligated under this Subsection 3.1 to provide any such information (i) that could reasonably result in a violation of applicable law or conflict with the Company’s ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ policy or a confidentiality obligation of the Company reasonably determines in good faith to be a trade secret or confidential information (unless covered by an enforceable confidentiality agreement, in form acceptable to the Company) or (ii) the disclosure of which would adversely affect the attorney-client privilege between the Company believes the issue can be resolved by using a non-disclosure agreement and its counsela non-disclosure agreement or confidentiality obligations are either already in place or are put in place). The rights given to any Major Investor pursuant to this Section 3.1(d) shall expire once that Investor’s account holds or could hold no securities of the Company that are restricted from resale under the Securities Act of 1933, as amended. If, for any period, the Company has any subsidiary whose accounts are consolidated with those of the Company, then in respect of such period the financial statements delivered pursuant to the foregoing sections shall be the consolidated and consolidating financial statements of the Company and all such consolidated subsidiaries. Notwithstanding anything else in this Subsection 3.1 to the contrary, the Company may cease providing the information set forth in this Subsection 3.1 during the period starting with the date sixty (60) days before the Company’s good-faith estimate of the date of filing of a registration statement if it reasonably concludes it must do so to comply with the SEC rules applicable to such registration statement and related offering; provided that the Company’s covenants under this Subsection 3.1 shall be reinstated at such time as the Company is no longer actively employing its commercially reasonable efforts to cause such registration statement to become effective. Notwithstanding anything else in this Subsection 3.1 to the contrary, with respect to Holders who are Affiliates of Institutional Investors, the Company shall not be required to provide the information set forth in this Subsection 3.1 to each such Holder, and instead shall only be required to provide such information to a single investment advisor to be designated by each Institutional Investors from time to time; provided, however that in the case of the Fidelity Investors, the information may be provided to up to five (5) investment advisors.
Appears in 3 contracts
Sources: Investors’ Rights Agreement, Investors’ Rights Agreement (CarGurus, Inc.), Investors’ Rights Agreement (CarGurus, Inc.)
Delivery of Financial Statements. The Company shall deliver to each Major Investor, provided that the Board of Directors has not reasonably determined that such Major Investor is (or, in the case of a Major Investor that is an individual, is employed by or serves as a consultant to) a competitor of the Company:
(a) as soon as practicable, but in any event within one hundred twenty (120) days after the end of each fiscal year of the Company, Company (i) a balance sheet as of the end of such year, (ii) statements of income and of cash flows for such year, and a comparison between (x) the actual amounts as of and for such fiscal year and (y) the comparable amounts for the prior year and as included in the Budget (as defined in Subsection 3.1(e)below) for such year, with an explanation of any material differences between such amounts and a schedule as to the sources and applications of funds for such year, and (iii) a statement of stockholders’ equity as of the end of such year, all such financial statements audited and certified by independent public accountants of regionally recognized standing selected by the Company and approved by the Board of Directors, including the Preferred Directors;
(b) as soon as practicable, but in any event within forty-five (45) days after the end of each of the first three (3) quarters quarter of each fiscal year of the Company, unaudited statements of income and of cash flows for such fiscal quarter, and an unaudited balance sheet and a statement of stockholders’ equity as of the end of such fiscal quarter, all prepared in accordance with GAAP (except that such financial statements may (i) be subject to normal year-end audit adjustments adjustments; and (ii) not contain all notes thereto that may be required in accordance with GAAP);
(c) as soon as practicable, but in any event within forty-five (45) days after the end of each of the first three (3) quarters of each fiscal year of the Company, a statement showing the number of shares of each class and series of capital stock and securities convertible into or exercisable for shares of capital stock outstanding at the end of the period, the Common Stock issuable upon conversion or exercise of any outstanding securities convertible or exercisable for Common Stock and the exchange ratio or exercise price applicable thereto, and the number of shares of issued stock options and stock options not yet issued but reserved for issuance, if any, all in sufficient detail as to permit any the Major Investor Investors to calculate its their respective percentage equity ownership in the Company, and certified by the chief financial officer or chief executive officer of the Company as being true, complete and correct;
(d) as soon as practicable, but in any event thirty (30) days before the end of each fiscal year, a budget and business plan for the next fiscal year (collectivelyyear, the “Budget”), approved by the Board of Directors and prepared on a quarterly monthly basis, including balance sheets, income statements, and statements of cash flow for such quarters months and, promptly after prepared, any other budgets or revised budgets prepared by the CompanyCompany (such budget and business plan that is approved by the Board of Directors (including the vote of a majority of the Preferred Directors then in office, which must include the approval of at least one of the Series B Preferred Directors (the “Requisite Preferred Director Vote”)) is collectively referred to herein as the “Budget”); and
(e) such other information relating to the financial condition, business, prospects prospects, or corporate affairs of the Company as any Major Investor may from time to time reasonably request; provided, however, that the Company shall not be obligated under this Subsection Section 3.1 to provide information (i) that the Company reasonably determines in good faith to be a trade secret or confidential information (unless covered by an enforceable confidentiality agreement, in a form acceptable to the Company) ); or (ii) the disclosure of which would adversely affect the attorney-client privilege between the Company and its counsel. If, for any period, the Company has any subsidiary whose accounts are consolidated with those of the Company, then in respect of such period the financial statements delivered pursuant to the foregoing sections shall be the consolidated and consolidating financial statements of the Company and all such consolidated subsidiaries. Notwithstanding anything else in this Subsection Section 3.1 to the contrary, the Company may cease providing the information set forth in this Subsection Section 3.1 during the period starting with the date sixty (60) days before the Company’s good-faith estimate of the date of filing of a registration statement if it reasonably concludes it must do so to comply with the SEC rules applicable to such registration statement and related offering; provided that the Company’s covenants under this Subsection Section 3.1 shall be reinstated at such time as the Company is no longer actively employing its commercially reasonable efforts to cause such registration statement to become effective.
Appears in 3 contracts
Sources: Investors’ Rights Agreement (Mineralys Therapeutics, Inc.), Investors’ Rights Agreement (Mineralys Therapeutics, Inc.), Investors’ Rights Agreement (Mineralys Therapeutics, Inc.)
Delivery of Financial Statements. The Company shall deliver to each Major Investor, provided provided, that the Board of Directors has not reasonably determined that such Major Investor is, directly or indirectly, engaged in activity that is (orcompetitive with the business of the Company, in provided, further, that the case of mere investment by a Major Investor that is an individuala venture capital fund in other companies in the Company’s industry or participation on such company’s board of directors shall not, is employed by or serves as in and of itself, cause the Major Investor to be deemed, a consultant to) a competitor competitor, of the Company:
(a) as soon as practicable, but in any event within one hundred twenty ninety (12090) days after the end of each fiscal year of the CompanyCompany or such other time period as determined by the Board of Directors, (i) a balance sheet and income statement as of the end last day of such year, (ii) statements of income and ; a statement of cash flows for such year, and a comparison between (x) the actual amounts as of and for such fiscal year and (y) the comparable amounts for the prior year and as included in the Budget (as defined in Subsection 3.1(e)) for such year-end financial reports to be in reasonable detail, prepared in accordance with an explanation of any material differences between such amounts GAAP and a schedule as to the sources and applications of funds for such year, and (iii) a statement of stockholders’ equity as of the end of such year, all such financial statements audited and certified by independent public accountants of nationally recognized standing selected by the Company and approved by Company; in the event that the Board of DirectorsDirectors determines to deliver the items listed in this Section 3.1(a) at any time after ninety (90) days after the end of a fiscal year of the Company, including the Preferred DirectorsCompany shall deliver to the Major Investors, subject to the provisions of Section 3.1, un-audited financial statements within 90 days of the end of each fiscal year of the Company;
(b) as soon as practicable, but in any event within forty-five (45) days after the end of each of the first three (3) quarters of each fiscal year of the Company, an unaudited statements income statement, schedule as to the sources and application of income and of cash flows funds for such fiscal quarter, and an unaudited balance sheet and a statement of stockholders’ stockholder’s equity as of the end of such fiscal quarter, all prepared in accordance with GAAP (except that such financial statements may (i) be subject to normal year-end audit adjustments and (ii) not contain all notes thereto that may be required in accordance with GAAP);
(c) as soon as practicable, but in any event within forty-five (45) days after the end of each of the first three (3) quarters of each fiscal year of the Company, a statement showing the number of shares of each class and series of the Company’s capital stock outstanding and securities convertible into or exercisable for shares of capital stock outstanding at the end of the period, the number of shares of Common Stock issuable upon conversion or exercise of any outstanding securities convertible or exercisable for Common Stock and the exchange ratio or exercise price applicable thereto, thereto and the number of shares of issued stock options and stock options not yet issued but reserved for issuance, if any, all in sufficient detail as to permit any Major Investor the Investors to calculate its their percentage equity ownership in the Company, Company and certified by the chief financial officer Chief Financial Officer or chief executive officer Chief Executive Officer of the Company as being true, complete and correct;
(d) as soon as practicable, but in any event within thirty (30) days before of the end of each month, an unaudited income statement, schedule as to the sources and application of funds for such month and an unaudited profit or loss statement;
(e) as soon as practicable, but in any event within thirty (30) days prior to the end of each fiscal year, a budget and business plan for the next fiscal year (collectively, the “Budget”), approved by the Board of Directors and prepared on a quarterly monthly basis, including balance sheets, income statements, sheets and sources and applications of funds statements of cash flow for such quarters months and, promptly after as soon as prepared, any other budgets or revised budgets prepared by the Company; and;
(ef) with respect to the financial statements called for in subsections (b) and (d) of this Section 3.1, an instrument executed by the Chief Financial Officer and President or Chief Executive Officer of the Company certifying that such financials were prepared in accordance with GAAP consistently applied with prior practice for earlier periods (with the exception of footnotes that may be required by GAAP) and fairly present the financial condition of the Company and its results of operation for the periods specified therein, subject to year-end audit adjustment;
(g) such other information relating to the financial condition, business, prospects or corporate affairs of the Company as the Investor or any Major assignee of the Investor may from time to time reasonably request; , provided, however, that the Company shall not be obligated under this Subsection subsection (g) or any other subsection of Section 3.1 to provide information (i) that provide information which the Company reasonably determines deems in good faith to be a trade secret or similar confidential information (unless covered by an enforceable confidentiality agreement, in form acceptable to the Company) or (ii) the disclosure of which would adversely affect the attorney-client privilege between the Company and its counsel. If, ; and
(h) if for any period, period the Company has shall have any subsidiary whose accounts are consolidated with those of the Company, then in respect of such period the financial statements delivered pursuant to the foregoing sections shall be the consolidated and consolidating financial statements of the Company and all such consolidated subsidiaries. Notwithstanding anything else in this Subsection 3.1 to the contrary, the Company may cease providing the information set forth in this Subsection 3.1 during the period starting with the date sixty (60) days before the Company’s good-faith estimate of the date of filing of a registration statement if it reasonably concludes it must do so to comply with the SEC rules applicable to such registration statement and related offering; provided that the Company’s covenants under this Subsection 3.1 shall be reinstated at such time as the Company is no longer actively employing its commercially reasonable efforts to cause such registration statement to become effective.
Appears in 3 contracts
Sources: Investor Rights Agreement, Investor Rights Agreement (Carbon Black, Inc.), Investor Rights Agreement (Carbon Black, Inc.)
Delivery of Financial Statements. The Company shall deliver to each Major Investor, provided that the Board of Directors has not reasonably determined that such Major Investor is (or, in the case of a Major Investor that is an individual, is employed by or serves as a consultant to) a competitor of the Company:
(a) as soon as practicable, but in any event within one hundred twenty (120) days after the end of each fiscal year of the Company, Company (i) a balance sheet as of the end of such year, (ii) statements of income and of cash flows for such year, and a comparison between (x) the actual amounts as of and for such fiscal year and (y) the comparable amounts for the prior year and as included in the Budget (as defined in Subsection 3.1(e3.1(d)) for such year, with an explanation of any material differences between such amounts and a schedule as to the sources and applications of funds for such year, and (iii) a statement of stockholders’ equity as of the end of such year, all such financial statements statements, if requested by the holders of at least fifty percent (50%) of the Registrable Securities, shall be audited and certified by independent public accountants selected by the Company and approved by the Board of Directors (including a majority of the Series A Directors, including the Preferred Directors);
(b) as soon as practicable, but in any event within forty-five (45) days after the end of each of the first three (3) quarters of each fiscal year of the Company, unaudited statements of income and of cash flows for such fiscal quarter, and an unaudited balance sheet and a statement of stockholders’ equity as of the end of such fiscal quarter, all prepared in accordance with GAAP (except that such financial statements may (i) be subject to normal year-end audit adjustments adjustments; and (ii) not contain all notes thereto that may be required in accordance with GAAP);
(c) as soon as practicable, but in any event within forty-five (45) days after the end of each of the first three (3) quarters of each fiscal year quarter of the Company, an up-to-date capitalization table including, a statement showing the number of shares of each class and series of capital stock and securities convertible into or exercisable for shares of capital stock outstanding at the end of the period, the Common Stock issuable upon conversion or exercise of any outstanding securities convertible or exercisable for Common Stock and the exchange ratio or exercise price applicable thereto, and the number of shares of issued stock options and stock options not yet issued but reserved for issuance, if any, all in sufficient detail as to permit any the Major Investor Investors to calculate its their respective percentage equity ownership in the Company, and certified by the chief financial officer or chief executive officer of the Company as being true, complete complete, and correct;
(d) as soon as practicable, but in any event thirty (30) days before the end of each fiscal year, a budget and business plan for the next fiscal year (collectively, the “Budget”), approved by the Board of Directors and prepared on a quarterly monthly basis, including balance sheets, income statements, and statements of cash flow for such quarters months and, promptly after prepared, any other budgets or revised budgets prepared by the Company;
(e) in connection with the delivery of the Budget required to be delivered pursuant to Section 3.1(d) above, a schedule setting forth an estimate of the aggregate number of equity awards expected to granted by the Company in such fiscal year; and
(ef) such other information relating to the financial condition, business, prospects prospects, or corporate affairs of the Company as any Major Investor may from time to time reasonably request; provided, however, that the Company shall not be obligated under this Subsection 3.1 to provide information (i) that the Company reasonably determines in good faith to be a trade secret or confidential information (unless covered by an enforceable confidentiality agreement, in a form acceptable to the Company) ); or (ii) the disclosure of which would adversely affect the attorney-client privilege between the Company and its counsel. If, for any period, the Company has any subsidiary whose accounts are consolidated with those of the Company, then in respect of such period the financial statements delivered pursuant to the foregoing sections shall be the consolidated and consolidating financial statements of the Company and all such consolidated subsidiaries. Notwithstanding anything else in this Subsection 3.1 to the contrary, the Company may cease providing the information set forth in this Subsection 3.1 during the period starting with the date sixty thirty (6030) days before the Company’s good-faith estimate of the date of filing of a registration statement if it reasonably concludes it must do so to comply with the SEC rules applicable to such registration statement and related offering; provided that the Company’s covenants under this Subsection 3.1 shall be reinstated at such time as the Company is no longer actively employing its commercially reasonable efforts to cause such registration statement to become effective.
Appears in 3 contracts
Sources: Investors’ Rights Agreement, Investors’ Rights Agreement (Denali Therapeutics Inc.), Investors’ Rights Agreement (Denali Therapeutics Inc.)
Delivery of Financial Statements. The Company shall deliver to each Major Investor, provided that the Board of Directors has not reasonably determined that such Major Investor is (or, in the case of a Major Investor that is an individual, is employed by or serves as a consultant to) a competitor of the Company:
(a) as soon as practicable, but in any event within one hundred twenty ninety (12090) days after the end of each fiscal year of the Company, (i) a balance sheet as of the end of such year, (ii) statements of income and of cash flows for such year, and a comparison between (x) the actual amounts as of and for such fiscal year and (y) the comparable amounts for the prior year and as included in the Budget (as defined in Subsection Section 3.1(e)) for such year, with an explanation of any material differences between such amounts and a schedule as to the sources and applications of funds for such year, and (iii) a statement of stockholders’ equity as of the end of such year, all such financial statements audited and certified by independent public accountants of nationally recognized standing selected by the Company and approved by the Board of Directors, including the Preferred DirectorsCompany;
(b) as soon as practicable, but in any event within forty-five thirty (4530) days after the end of each of the first three (3) quarters of each fiscal year of the Company, unaudited statements of income and of cash flows for such fiscal quarter, and an unaudited balance sheet and a statement of stockholders’ equity as of the end of such fiscal quarter, all prepared in accordance with GAAP (except that such financial statements may (i) be subject to normal year-end audit adjustments and (ii) not contain all notes thereto that may be required in accordance with GAAP);
(c) as soon as practicable, but in any event within forty-five thirty (4530) days after the end of each of the first three (3) quarters of each fiscal year of the Companymonth, a statement showing the number of shares of each class and series of capital stock and securities convertible into or exercisable for shares of capital stock outstanding at the end of the period, the Common Stock issuable upon conversion or exercise of any outstanding securities convertible or exercisable for Common Stock and the exchange ratio or exercise price applicable thereto, and the number of shares of issued stock options and stock options not yet issued but reserved for issuance, if any, all in sufficient detail as to permit any the Major Investor Investors to calculate its their respective percentage equity ownership in the Company, and certified by the chief financial officer or chief executive officer of the Company as being true, complete complete, and correct;
(d) as soon as practicable, but in any event within thirty (30) days of the end of each month, an unaudited income statement and statement of cash flows for such month, and an unaudited balance sheet as of the end of such month, all prepared in accordance with GAAP (except that such financial statements may (i) be subject to normal year-end audit adjustments and (ii) not contain all notes thereto that may be required in accordance with GAAP);
(e) as soon as practicable, but in any event thirty (30) days before the end of each fiscal year, a budget and business plan for the next fiscal year (collectively, the “Budget”), approved by the Board of Directors and prepared on a quarterly monthly basis, including balance sheets, income statements, and statements of cash flow for such quarters months and, promptly after prepared, any other budgets or revised budgets prepared by the Company;
(f) with respect to the financial statements called for in Sections 3.1(a) and 3.1(b), a management discussion and analysis by the chief executive officer of the Company that includes updates and status of the Company’s material developments and activities; and
(eg) such other information relating to the financial condition, business, prospects prospects, or corporate affairs of the Company as any Major Investor may from time to time reasonably request; provided, however, that the Company shall not be obligated under this Subsection Section 3.1 to provide information (i) that the Company reasonably determines in good faith to be a trade secret or confidential information (unless covered by an enforceable confidentiality agreement, in form acceptable to the Company) or (ii) the disclosure of which would adversely affect the attorney-client privilege between the Company and its counsel. If, for any period, the Company has any subsidiary whose accounts are consolidated with those of the Company, then in respect of such period the financial statements delivered pursuant to the foregoing sections shall be the consolidated and consolidating financial statements of the Company and all such consolidated subsidiaries. Notwithstanding anything else in this Subsection Section 3.1 to the contrary, the Company may cease providing the information set forth in this Subsection Section 3.1 during the period starting with the date sixty thirty (6030) days before the Company’s good-faith estimate of the date of filing of a registration statement if it reasonably concludes it must do so to comply with the SEC rules applicable to such registration statement and related offering; provided provided, that the Company’s covenants under this Subsection Section 3.1 shall be reinstated at such time as the Company is no longer actively employing its commercially reasonable efforts to cause such registration statement to become effective.
Appears in 3 contracts
Sources: Investors’ Rights Agreement (Akebia Therapeutics, Inc.), Investors’ Rights Agreement (Akebia Therapeutics, Inc.), Investors’ Rights Agreement (Akebia Therapeutics, Inc.)
Delivery of Financial Statements. The Company shall deliver to each Major Investor, provided that Investor the Board of Directors has not reasonably determined that such Major Investor is (or, in the case of a Major Investor that is an individual, is employed by or serves as a consultant to) a competitor of the Company:required items listed below.
(a) as soon as practicable, but in any event within ninety (90) days after the end of each fiscal year of the Company, unaudited statements of income and of cash flows for such fiscal year, and an unaudited balance sheet and a statement of stockholders’ equity as of the end of such fiscal year, all prepared in accordance with GAAP (except that such financial statements may (i) be subject to normal year-end audit adjustments and (ii) not contain all notes thereto that may be required in accordance with GAAP);
(b) as soon as practicable, but in any event within one hundred twenty eighty (120180) days after the end of each fiscal year of the Company, (i) a balance sheet as of the end of such year, (ii) statements of income and of cash flows for such year, and a comparison between (x) the actual amounts as of and for such fiscal year and (y) the comparable amounts for the prior year and as included in the Budget (as defined in Subsection 3.1(e)) for such year, with an explanation of any material differences between such amounts and a schedule as to the sources and applications of funds for such year, and (iii) a statement of stockholders’ equity as of the end of such year, all such financial statements audited and certified by independent public accountants of nationally or regionally recognized standing selected by the Company and approved by the Board of Directors, including the Preferred Directors;
(bc) as soon as practicable, practicable but in any event within forty-five (45) days after the end of each of the first three (3) quarters of each fiscal year of the Company, unaudited statements of income and of cash flows for such fiscal quarter, and an unaudited balance sheet and a statement of stockholders’ equity as of the end of such fiscal quarter, all prepared in accordance with GAAP (except that such financial statements may (i) be subject to normal year-end audit adjustments and (ii) not contain all notes thereto that may be required in accordance with GAAP);
(cd) as soon as practicable, but in any event within forty-five (45) days after the end of each of the first three (3) quarters of each fiscal year of the Company, a statement showing the number of shares of each class and series of capital stock and securities convertible into or exercisable for shares of capital stock outstanding at the end of the period, the Common Stock issuable upon conversion or exercise of any outstanding securities convertible or exercisable for Common Stock and the exchange ratio or exercise price applicable thereto, and the number of shares of issued stock options and stock options not yet issued but reserved for issuance, if any, all in sufficient detail as to permit any each Major Investor to calculate its their respective percentage equity ownership in the Company, and certified by the chief financial officer or chief executive officer of the Company as being true, complete complete, and correct;.
(de) as soon as practicable, but in any event thirty fifteen (3015) days before after the end of each fiscal year, a budget and business plan for the next fiscal year (collectively, the “Budget”), approved by the Board of Directors and prepared on a quarterly monthly basis, including balance sheets, income statements, and statements of cash flow for such quarters months and, promptly after prepared, any other budgets or revised budgets prepared by the Company; and
(ef) such other information relating to the financial condition, business, prospects prospects, or corporate affairs of the Company as any Major Investor may from time to time reasonably request; provided, however, that the Company shall not be obligated under this Subsection this
Section 3.1 to provide information (i) that the Company reasonably determines in good faith to be a trade secret or confidential information (unless covered by an enforceable confidentiality agreement, in form acceptable to the Company) or (ii) the disclosure of which would adversely affect the attorney-client privilege between the Company and its counsel. If, for any period, the Company has any subsidiary whose accounts are consolidated with those of the Company, then in respect of such period the financial statements delivered pursuant to the foregoing sections shall be the consolidated and consolidating financial statements of the Company and all such consolidated subsidiaries. Notwithstanding anything else in this Subsection Section 3.1 to the contrary, the Company may cease providing the information set forth in this Subsection Section 3.1 during the period starting with the date sixty thirty (6030) days before the Company’s good-faith estimate of the date of filing of a registration statement if it reasonably concludes it must do so to comply with the SEC rules applicable to such registration statement and related offering; provided that the Company’s covenants under this Subsection Section 3.1 shall be reinstated at such time as the Company is no longer actively employing its commercially reasonable efforts to cause such registration statement to become effective.
Appears in 3 contracts
Sources: Investors’ Rights Agreement (Jounce Therapeutics, Inc.), Investors’ Rights Agreement (Jounce Therapeutics, Inc.), Investors’ Rights Agreement (Jounce Therapeutics, Inc.)
Delivery of Financial Statements. The Company shall deliver to each Major the Janus Investor, provided that the Board of Directors of the Company has not reasonably determined that such Major the Janus Investor is (or, in the case of a Major Investor that is an individual, is employed by or serves as a consultant to) a competitor of the Company:
(ai) as soon as practicable, but in any event within one hundred twenty (120) 120 days after the end of each fiscal year of the Company, Company (i) a balance sheet as of the end of such year, (ii) statements of income and of cash flows for such year, and a comparison between (x) the actual amounts as of and for such fiscal year and (y) the comparable amounts for the prior year and as included in the Budget (as defined in Subsection 3.1(e)) for such year, with an explanation of any material differences between such amounts and a schedule as to the sources and applications of funds for such year, and (iii) a statement of stockholders’ equity as of the end of such year, all such financial statements audited and certified by independent public accountants of nationally recognized standing selected by the Company and approved by the Board of Directors, including the Preferred DirectorsCompany;
(bii) as soon as practicable, but in any event within forty-five (45) days after the end of each of the first three (3) quarters quarter of each fiscal year of the Company, unaudited statements of income and of cash flows for such fiscal quarter, and an unaudited balance sheet and a statement of stockholders’ equity as of the end of such fiscal quarter, all prepared in accordance with GAAP (except that such financial statements may (i) be subject to normal year-end audit adjustments adjustments; and (ii) not contain all notes thereto that may be required in accordance with GAAP);
(ciii) as soon as practicable, but in any event within forty-five (45) days after the end of each of the first three (3) quarters quarter of each fiscal year of the Company, a statement showing the number of shares of each class and series of capital stock and securities convertible into or exercisable for shares of capital stock outstanding at the end of the period, the Common Stock of the Company issuable upon conversion or exercise of any outstanding securities convertible or exercisable for Common Stock and the exchange ratio or exercise price applicable thereto, and the number of shares of issued stock options and stock options not yet issued but reserved for issuance, if any, all in sufficient detail as to permit any Major the Janus Investor to calculate its percentage equity ownership in the Company, and certified by the chief financial officer or chief executive officer of the Company as being true, complete complete, and correct;
(div) as soon as practicable, but in any event thirty (30) days before the end of each fiscal year, a budget and business plan for the next fiscal year (collectivelyyear, the “Budget”), approved by the Board of Directors and prepared on a quarterly monthly basis, including balance sheets, income statements, and statements of cash flow for such quarters months and, promptly after prepared, any other budgets or revised budgets prepared by the Company; andCompany (such budget and business plan that is approved by the Board of Directors;
(ev) such other information relating to the financial condition, business, prospects prospects, or corporate affairs of the Company as any Major the Janus Investor may from time to time reasonably request; provided, however, that the Company shall not be obligated under this Subsection 3.1 to provide information (i) that the Company reasonably determines in good faith to be a trade secret or confidential information (unless covered by an enforceable confidentiality agreement, in a form acceptable to the Company) ); or (ii) the disclosure of which would adversely affect the attorney-client privilege between the Company and its counsel. If, for any period, the Company has any subsidiary whose accounts are consolidated with those of the Company, then in respect of such period the financial statements delivered pursuant to the foregoing sections shall be the consolidated and consolidating financial statements of the Company and all such consolidated subsidiaries. Notwithstanding anything else in this Subsection 3.1 Section 4 to the contrary, the Company may cease providing the information set forth in this Subsection 3.1 Section 4 during the period starting with the date sixty (60) days before the Company’s good-faith estimate of the date of filing of a registration statement if it reasonably concludes it must do so to comply with the SEC rules applicable to such registration statement and related offering; provided that the Company’s covenants under this Subsection 3.1 Section 4 shall be reinstated at such time as the Company is no longer actively employing its commercially reasonable efforts to cause such registration statement to become effective.
Appears in 3 contracts
Sources: Side Letter (MedicaMetrix, Inc/De), Side Letter (MedicaMetrix, Inc/De), Series B Preferred Stock Purchase Agreement (MedicaMetrix, Inc/De)
Delivery of Financial Statements. The Company shall deliver to each Major Investor, provided that the Board of Directors has not reasonably determined that such Major Investor is (or, in the case of a Major Investor that is an individual, is employed by or serves as a consultant to) a competitor of the Company:
(a) as soon as practicable, but in any event within one hundred twenty fifty (120150) days after the end of each fiscal year of the Company, (i) a balance sheet as of the end of such year, (ii) statements of income and of cash flows for such year, and a comparison between (x) the actual amounts as of and for such fiscal year and (y) the comparable amounts for the prior year and as included in the Budget (as defined in Subsection Section 3.1(e)) for such year, with an explanation of any material differences between such amounts and a schedule as to the sources and applications of funds for such year, and (iii) a statement of stockholders’ equity as of the end of such year, all such financial statements to be audited and certified by independent public accountants of nationally recognized standing selected by the Company and approved by the Board of Directors, including the Preferred DirectorsBoard;
(b) as soon as practicable, but in any event within forty-five (45) days after the end of each of the first three (3) quarters of each fiscal year of the Company, unaudited statements of income and of cash flows for such fiscal quarter, and an unaudited balance sheet and a statement of stockholders’ equity as of the end of such fiscal quarter, all prepared in accordance with GAAP (except that such financial statements may (i) be subject to normal year-end audit adjustments and (ii) not contain all notes thereto that may be required in accordance with GAAP);
(c) as soon as practicable, but in any event within forty-five (45) days after the end of each of the first three (3) quarters of each fiscal year of the Company, a statement showing the number of shares of each class and series of capital stock and securities convertible into or exercisable for shares of capital stock outstanding at the end of the period, the Common Stock issuable upon conversion or exercise of any outstanding securities convertible or exercisable for Common Stock and the exchange ratio or exercise price applicable thereto, and the number of shares of issued stock options and stock options not yet issued but reserved for issuance, if any, all in sufficient detail as to permit any the Major Investor Investors to calculate its their respective percentage equity ownership in the Company, and certified by the chief financial officer or chief executive officer of the Company as being true, complete complete, and correct;
(d) as soon as practicable, but in any event within thirty (30) days of the end of each month, an unaudited income statement and statement of cash flows for such month, and an unaudited balance sheet and statement of stockholders’ equity as of the end of such month, all prepared in accordance with GAAP (except that such financial statements may (i) be subject to normal year-end audit adjustments and (ii) not contain all notes thereto that may be required in accordance with GAAP);
(e) as soon as practicable, but in any event thirty (30) days before the end of each fiscal year, a budget and business plan for the next fiscal year (collectively, the “Budget”), approved by the Board of Directors and prepared on a quarterly monthly basis, including balance sheets, income statements, and statements of cash flow for such quarters months and, promptly after prepared, any other budgets or revised budgets prepared by the Company;
(f) with respect to the financial statements called for in Section 3.1(a), Section 3.1(b) and Section 3.1(d), an instrument executed by the chief financial officer and chief executive officer of the Company certifying that such financial statements were prepared in accordance with GAAP consistently applied with prior practice for earlier periods (except as otherwise set forth in Section 3.1(b) and Section 3.1(d)) and fairly present the financial condition of the Company and its results of operation for the periods specified therein; and
(eg) such other information relating to the financial condition, business, prospects prospects, or corporate affairs of the Company as any Major Investor may from time to time reasonably request; provided, however, that the Company shall not be obligated under this Subsection Section 3.1 to provide information (i) that the Company reasonably determines in good faith to be a trade secret or confidential information (unless covered by an enforceable confidentiality agreement, in form acceptable to the Company) or (ii) the disclosure of which would adversely affect the attorney-client privilege between the Company and its counsel. If, for any period, the Company has any subsidiary whose accounts are consolidated with those of the Company, then in respect of such period the financial statements delivered pursuant to the foregoing sections shall be the consolidated and consolidating financial statements of the Company and all such consolidated subsidiaries. Notwithstanding anything else in this Subsection Section 3.1 to the contrary, the Company may cease providing the information set forth in this Subsection Section 3.1 during the period starting with the date sixty thirty (6030) days before the Company’s good-faith estimate of the date of filing of a registration statement if it reasonably concludes it must do so to comply with the SEC rules applicable to such registration statement and related offering; provided that the Company’s covenants under this Subsection Section 3.1 shall be reinstated at such time as the Company is no longer actively employing its commercially reasonable efforts to cause such registration statement to become effective.
Appears in 3 contracts
Sources: Investors’ Rights Agreement (Invitae Corp), Investors’ Rights Agreement (Invitae Corp), Investors’ Rights Agreement (Invitae Corp)
Delivery of Financial Statements. The So long as EnerTech owns one percent (1.0%) of the issued and outstanding capital stock of the Company, the Company shall deliver to each Major InvestorEnerTech or its Affiliate, provided that the Board of Directors has not reasonably determined that such Major Investor is (or, in as the case of a Major Investor that is an individual, is employed by or serves as a consultant to) a competitor of the Companymay be:
(a) as soon as practicable, but in any event within one hundred twenty ninety (12090) days after the end of each fiscal year of the Company, (i) a balance sheet and income statement as of the end last day of such year, (ii) statements of income and ; a statement of cash flows for such year, year and a comparison between (x) the actual amounts as of and figures for such fiscal year and (y) year, the comparable amounts figures for the prior year and as the comparable figures included in the Budget (as defined in Subsection 3.1(e)below) for such year, with an explanation of any material differences between such amounts them and a schedule as to the sources and applications of funds for such year, and (iii) a statement of stockholders’ equity as such year-end financial reports to be in reasonable detail, prepared in accordance with GAAP, of the end of such year, all such financial statements audited and certified by independent public accountants selected by the Company and approved by the Board of Directors, including the Preferred DirectorsCompany;
(b) as soon as practicable, but in any event within forty-five (45) days after the end of each of the first three (3) quarters of each fiscal year of the Company, an unaudited statements income statement, schedule as to the sources and application of income and of cash flows funds for such fiscal quarter, and an unaudited balance sheet and a statement of stockholders’ stockholder’s equity as of the end of such fiscal quarter, all prepared in accordance with GAAP (except that such financial statements may (i) be subject to normal year-end audit adjustments and (ii) not contain all notes thereto that may be required in accordance with GAAP);
(c) as soon as practicable, but in any event within with forty-five (45) days after the end of each of the first three (3) quarters of each fiscal year of the Company, a statement showing the number of shares of each class and series of capital stock and securities convertible into or exercisable for shares of capital stock outstanding at the end of the period, the Common Stock number of common shares issuable upon conversion or exercise of any outstanding securities convertible or exercisable for Common Stock common shares and the exchange ratio or exercise price applicable thereto, thereto and the number of shares of issued stock options and stock options not yet issued but reserved for issuance, if any, all in sufficient detail as to permit any Major Investor EnerTech or its Affiliate to calculate its percentage equity ownership in the Company, Company and certified by the chief financial officer Chief Financial Officer or chief executive officer Chief Executive Officer of the Company as being true, complete and correct;
(d) as soon as practicable, but in any event within thirty (30) days before of the end of each month, an unaudited income statement, an unaudited profit or loss statement;
(e) as soon as practicable, but in any event thirty (30) days prior to the end of each fiscal year, a budget and business plan for the next fiscal year (collectively, the “Budget”), approved by the Board of Directors and prepared on a quarterly monthly basis, including balance sheets, income statements, sheets and sources and applications of funds statements of cash flow for such quarters months and, promptly after as soon as prepared, any other budgets or revised budgets prepared by the Company; and;
(ef) with respect to the financial statements called for in subsections (a) and(b) of this Section 3.1, an instrument executed by the Chief Financial Officer and President or Chief Executive Officer of the Company and certifying that such financials were prepared in accordance with GAAP consistently applied with prior practice for earlier periods (with the exception of footnotes that may be required by GAAP) and fairly present the financial condition of the Company and its results of operation for the periods specified therein, subject to year-end audit adjustment;
(g) such other information relating to the financial condition, business, prospects or corporate affairs of the Company as EnerTech or any Major Investor assignee of EnerTech may from time to time reasonably request; , provided, however, that the Company shall not be obligated under this Subsection subsection (g) or any other subsection of Section 3.1 to provide information (i) that provide information which the Company reasonably determines deems in good faith to be a trade secret or similar confidential information (unless covered by an enforceable confidentiality agreement, in form acceptable to the Company) or (ii) the disclosure of which would adversely affect the attorney-client privilege between the Company and its counsel. If, ;
(h) if for any period, period the Company has shall have any subsidiary whose accounts are consolidated with those of the Company, then in respect of such period the financial statements delivered pursuant to the foregoing sections shall be the consolidated and consolidating financial statements of the Company and all such consolidated subsidiaries. Notwithstanding anything else .
(i) notices describing in this Subsection 3.1 reasonable detail any claim, action, suit, proceeding, arbitration, complaint, charge or investigation pending or to the contrary, knowledge of the Company may cease providing threatened against the information set forth Company or any officer or director of the Company involving the Company or any default or breach by any party under any agreement of the Company as soon as practicable, but in this Subsection 3.1 during the period starting with the date sixty any event within five (605) days before the Company’s good-faith estimate of the date of filing of a registration statement if it reasonably concludes it must do so to comply with the SEC rules applicable to such registration statement and related offering; provided that the Company’s covenants under this Subsection 3.1 shall be reinstated at such time as after the Company is no longer actively employing its commercially reasonable efforts to cause becomes aware of such registration statement to become effectivelitigation or contract default.
Appears in 3 contracts
Sources: Stockholders’ Agreement (Acorn Energy, Inc.), Stockholders' Agreement (Acorn Energy, Inc.), Stockholders’ Agreement (Acorn Energy, Inc.)
Delivery of Financial Statements. The Company shall deliver to each Major InvestorInvestor , provided that the Board of Directors has not reasonably determined that such Major Investor is (or, in the case of a Major Investor that is an individual, is employed by or serves as a consultant to) a competitor Competitor of the Company:
(a) as soon as practicable, but in any event within one hundred twenty (120) days after the end of each fiscal year of the Company, Company (i) a balance sheet as of the end of such year, (ii) statements of income and of cash flows for such year, and a comparison between (x) the actual amounts as of and for such fiscal year and (y) the comparable amounts for the prior year and as included in the Budget (as defined in Subsection 3.1(e)) for such year, with an explanation of any material differences between such amounts and a schedule as to the sources and applications of funds for such year, and (iii) a statement of stockholders’ equity as of the end of such year, all such financial statements audited and certified by independent public accountants selected by the Company and approved by the Board of Directors, including the Preferred Directors;
(b) as soon as practicable, but in any event within forty-five (45) days after the end of each of the first three (3) quarters of each fiscal year of the Company, unaudited statements of income and of cash flows for such fiscal quarter, and an unaudited balance sheet and a statement of stockholders’ equity as of the end of such fiscal quarter, all prepared in accordance with GAAP (except that such financial statements may (i) be subject to normal year-end audit adjustments adjustments; and (ii) not contain all notes thereto that may be required in accordance with GAAP);
(c) as soon as practicable, but in any event within forty-five (45) days after the end of each of the first three (3) quarters of each fiscal year of the Company, a statement showing the number of shares of each class and series of capital stock and securities convertible into or exercisable for shares of capital stock outstanding at the end of the period, the Common Stock issuable upon conversion or exercise of any outstanding securities convertible or exercisable for Common Stock and the exchange ratio or exercise price applicable thereto, and the number of shares of issued stock options and stock options not yet issued but reserved for issuance, if any, all in sufficient detail as to permit any the Major Investor Investors to calculate its their respective percentage equity ownership in the Company, and certified by the chief financial officer or chief executive officer of the Company as being true, complete complete, and correct;
(d) with respect to the financial statements called for in Subsection 3.1(a), Subsection 3.1(b) and Subsection 3.1(d), an instrument executed by the chief financial officer and chief executive officer of the Company certifying that such financial statements were prepared in accordance with GAAP consistently applied with prior practice for earlier periods (except as soon as practicable, but otherwise set forth in any event thirty (30Subsection 3.1(b) days before and Subsection 3.1(d)) and fairly present the end financial condition of each fiscal year, a budget the Company and business plan its results of operation for the next fiscal year (collectively, the “Budget”), approved by the Board of Directors and prepared on a quarterly basis, including balance sheets, income statements, and statements of cash flow for such quarters and, promptly after prepared, any other budgets or revised budgets prepared by the Companyperiods specified therein; and
(e) such other information relating to the financial condition, business, prospects prospects, or corporate affairs of the Company as any Major Investor may from time to time reasonably request; provided, however, that the Company shall not be obligated under this Subsection 3.1 to provide information (i) that the Company reasonably determines in good faith to be a trade secret or confidential information (unless covered by an enforceable confidentiality agreement, in a form acceptable to the Company) ); or (ii) the disclosure of which would adversely affect the attorney-client privilege between the Company and its counsel. If, for any period, the Company has any subsidiary whose accounts are consolidated with those of the Company, then in respect of such period the financial statements delivered pursuant to the foregoing sections shall be the consolidated and consolidating financial statements of the Company and all such consolidated subsidiaries. Notwithstanding anything else in this Subsection 3.1 to the contrary, the Company may cease providing the information set forth in this Subsection 3.1 during the period starting with the date sixty (60) days before the Company’s good-faith estimate of the date of filing of a registration statement if it reasonably concludes it must do so to comply with the SEC rules applicable to such registration statement and related offering; provided that the Company’s covenants under this Subsection 3.1 shall be reinstated at such time as the Company is no longer actively employing its commercially reasonable efforts to cause such registration statement to become effective.
Appears in 3 contracts
Sources: Investors’ Rights Agreement (Gain Therapeutics, Inc.), Investors’ Rights Agreement (Gain Therapeutics, Inc.), Investors’ Rights Agreement (Gain Therapeutics, Inc.)
Delivery of Financial Statements. The Company shall deliver to each Major Investor, provided that the Board of Directors has not reasonably determined that such Major Investor is (or, in the case of a Major Investor that is an individual, is employed by or serves as a consultant to) a competitor Competitor of the Company:
(a) as soon as practicable, but in any event within one hundred twenty (120) days [***] after the end of each fiscal year of the Company, Company (i) a balance sheet as of the end of such year, (ii) statements of income and of cash flows for such year, and a comparison between (x) the actual amounts as of and for such fiscal year and (y) the comparable amounts for the prior year and as included in the Budget (as defined in Subsection 3.1(e3.1(d)) for such year, with an explanation of any material differences between such amounts and a schedule as to the sources and applications of funds for such year, and (iii) a statement of stockholders’ equity as of the end of such year, all such financial statements audited and certified by independent public accountants selected by the Company and approved by the Board of Directors, including the Preferred Directors;
(b) as soon as practicable, but in any event within forty-five (45) [***] days after the end of each of the first three (3) quarters of each fiscal year of the Company, unaudited statements of income and of cash flows for such fiscal quarter, and an unaudited balance sheet and a statement of stockholders’ equity as of the end of such fiscal quarter, all prepared in accordance with GAAP (except that such financial statements may (i) be subject to normal year-end audit adjustments adjustments; and (ii) not contain all notes thereto that may be required in accordance with GAAP);
(c) as soon as practicable, but in any event within forty-five (45) days [***] after the end of each of the first three (3) quarters of each fiscal year of the Company, a statement showing the number of shares of each class and series of capital stock and securities convertible into or exercisable for shares of capital stock outstanding at the end of the period, the Common Stock issuable upon conversion or exercise of any outstanding securities convertible or exercisable for Common Stock and the exchange ratio or exercise price applicable thereto, and the number of shares of issued stock options and stock options not yet issued but reserved for issuance, if any, all in sufficient detail as to permit any the Major Investor Investors to calculate its their respective percentage equity ownership in the Company, and certified by the chief financial officer or chief executive officer of the Company as being true, complete complete, and correct;
(d) as soon as practicable, but in any event thirty (30) days [***] before the end of each fiscal year, a budget and business plan for the next fiscal year (collectively, the “Budget”), approved by the Board of Directors and prepared on a quarterly monthly basis, including balance sheets, income statements, and statements of cash flow for such quarters months and, promptly after prepared, any other budgets or revised budgets prepared by the Company;
(e) with respect to the financial statements called for in Subsection 3.1(a), Subsection 3.1(b) and Subsection 3.1(d), an instrument executed by the chief financial officer or chief executive officer of the Company certifying that such financial statements were prepared in accordance with GAAP consistently applied with prior practice for earlier periods (except as otherwise set forth in Subsection 3.1(b) and Subsection 3.1(d)) and fairly present the financial condition of the Company and its results of operation for the periods specified therein;
(f) to the extent any Major Investor so requests, copies of the financial statements called for in Subsection 3.1(a), Subsection 3.1(b) and Subsection 3.1(d) prepared in accordance with IFRS (except that such financial statements called for in Subsection 3.1(b) may be (i) be subject to normal year-end audit adjustments and (ii) not contain all notes thereto that may be required in accordance with IFRS); and
(eg) such other information relating to the financial condition, business, prospects prospects, or corporate affairs of the Company as any Major Investor may from time to time reasonably request; provided, however, that the Company shall not be obligated under this Subsection 3.1 to provide information (i) that the Company reasonably determines in good faith to be a trade secret or confidential information (unless covered by an enforceable confidentiality agreement, in a form acceptable to the Company) ); or (ii) the disclosure of which would adversely affect the attorney-client privilege between the Company and its counsel. If, for any period, the Company has any subsidiary whose accounts are consolidated with those of the Company, then in respect of such period the financial statements delivered pursuant to the foregoing sections shall be the consolidated and consolidating financial statements of the Company and all such consolidated subsidiaries. Notwithstanding anything else in this Subsection 3.1 to the contrary, the Company may cease providing the information set forth in this Subsection 3.1 during the period starting with the date sixty (60) days [***] before the Company’s good-faith estimate of the date of filing of a registration statement if it reasonably concludes it must do so to comply with the SEC rules applicable to such registration statement and related offering; provided that the Company’s covenants under this Subsection 3.1 shall be reinstated at such time as the Company is no longer actively employing its commercially reasonable efforts to cause such registration statement to become effective.
Appears in 3 contracts
Sources: Investors’ Rights Agreement (PureTech Health PLC), Investors’ Rights Agreement (PureTech Health PLC), Investors’ Rights Agreement (PureTech Health PLC)
Delivery of Financial Statements. The Company shall deliver to each Major Investor, provided that the Board of Directors has not reasonably determined that such Major Investor is (or, in the case of a Major Investor that is an individual, is employed by or serves as a consultant to) a competitor Competitor of the Company:
(a) as soon as practicable, but in any event within one hundred twenty (120) days after the end of each fiscal year of the Company, Company (i) a balance sheet as of the end of such year, (ii) statements of income and of cash flows for such year, and a comparison between (x) the actual amounts as of and for such fiscal year and (y) the comparable amounts for the prior year and as included in the Budget (as defined in Subsection 3.1(e)) for such year, with an explanation of any material differences between such amounts and a schedule as to the sources and applications of funds for such year, and (iii) a statement of stockholders’ equity as of the end of such year, all such financial statements audited and certified by independent public accountants selected by the Company and approved by the Board of Directors, including the Preferred DirectorsBoard;
(b) as soon as practicable, but in any event within forty-five (45) days after the end of each of the first three (3) quarters of each fiscal year of the Company, unaudited statements of income and of cash flows for such fiscal quarter, and an unaudited balance sheet and a statement of stockholders’ equity as of the end of such fiscal quarter, all prepared in accordance with GAAP (except that such financial statements may (i) be subject to normal year-end audit adjustments adjustments; and (ii) not contain all notes thereto that may be required in accordance with GAAP);
(c) as soon as practicable, but in any event within forty-five (45) days after the end of each of the first three (3) quarters of each fiscal year of the Company, a statement showing the number of shares of each class and series of capital stock and securities convertible into or exercisable for shares of capital stock outstanding at the end of the period, the Common Stock issuable upon conversion or exercise of any outstanding securities convertible or exercisable for Common Stock and the exchange ratio or exercise price applicable thereto, and the number of shares of issued stock options and stock options not yet issued but reserved for issuance, if any, all in sufficient detail as to permit any the Major Investor Investors to calculate its their respective percentage equity ownership in the Company, and certified by the chief financial officer or chief executive officer of the Company as being true, complete complete, and correct;
(d) as soon as practicable, but in any event within thirty (30) days of the end of each month, an unaudited income statement and statement of cash flows for such month, and an unaudited balance sheet and statement of stockholders’ equity as of the end of such month, all prepared in accordance with GAAP (except that such financial statements may (i) be subject to normal year-end audit adjustments and (ii) not contain all notes thereto that may be required in accordance with GAAP);
(e) as soon as practicable, but in any event thirty (30) days before the end of each fiscal year, a budget and business plan for the next fiscal year (collectively, the “Budget”), approved by the Board of Directors and prepared on a quarterly monthly basis, including balance sheets, income statements, and statements of cash flow for such quarters months and, promptly after prepared, any other budgets or revised budgets prepared by the Company; and;
(ef) such other information relating to the financial condition, business, prospects prospects, or corporate affairs of the Company as any Major Investor may from time to time reasonably request; provided, however, that the Company shall not be obligated under this Subsection 3.1 to provide information (i) that the Company reasonably determines in good faith to be a trade secret or confidential information (unless covered by an enforceable confidentiality agreement, in a form acceptable to the Company) ); or (ii) the disclosure of which would adversely affect the attorney-client privilege between the Company and its counsel. If, for any period, the Company has any subsidiary whose accounts are consolidated with those of the Company, then in respect of such period the financial statements delivered pursuant to the foregoing sections shall be the consolidated and consolidating financial statements of the Company and all such consolidated subsidiaries. Notwithstanding anything else in this Subsection 3.1 to the contrary, the Company may cease providing the information set forth in this Subsection 3.1 during the period starting with the date sixty (60) days before the Company’s good-faith estimate of the date of filing of a registration statement if it reasonably concludes it must do so to comply with the SEC rules applicable to such registration statement and related offering; provided that the Company’s covenants under this Subsection 3.1 shall be reinstated at such time as the Company is no longer actively employing its commercially reasonable efforts to cause such registration statement to become effective. The Company shall promptly and accurately respond, and shall use its commercially reasonable efforts to cause its transfer agent to promptly respond, to requests for information made on behalf of any Fidelity Investor relating to (i) accounting or securities law matters required in connection with its audit or (ii) the actual holdings of such Fidelity Investor, including in relation to the total outstanding shares; provided, however, that the Company shall not be obligated to provide any such information that could reasonably result in a violation of applicable law or conflict with a confidentiality obligation of the Company.
Appears in 3 contracts
Sources: Investors’ Rights Agreement (Codiak BioSciences, Inc.), Investors’ Rights Agreement (Codiak BioSciences, Inc.), Investors’ Rights Agreement (Codiak BioSciences, Inc.)
Delivery of Financial Statements. The Company shall deliver to each Major InvestorInvestor the required items listed below.
(a) as soon as practicable, provided that but in any event within ninety (90) days after the Board end of Directors has not reasonably determined that such Major Investor is (or, in the case of a Major Investor that is an individual, is employed by or serves as a consultant to) a competitor each fiscal year of the Company:, unaudited statements of income and of cash flows for such fiscal year, and an unaudited balance sheet and a statement of stockholders’ equity as of the end of such fiscal year, all prepared in accordance with GAAP (except that such financial statements may (i) be subject to normal year-end audit adjustments and (ii) not contain all notes thereto that may be required in accordance with GAAP);
(ab) as soon as practicable, but in any event within one hundred twenty (120) days after the end of each fiscal year of the Company, (i) a balance sheet as of the end of such year, (ii) statements of income and of cash flows for such year, and a comparison between (x) the actual amounts as of and for such fiscal year and (y) the comparable amounts for the prior year and as included in the Budget (as defined in Subsection 3.1(e)) for such year, with an explanation of any material differences between such amounts and a schedule as to the sources and applications of funds for such year, and (iii) a statement of stockholders’ equity as of the end of such year, all such financial statements audited and certified by independent public accountants of nationally or regionally recognized standing selected by the Company and approved by the Board of Directors, including the Preferred Directors;
(bc) as soon as practicable, practicable but in any event within forty-five (45) days after the end of each of the first three (3) quarters of each fiscal year of the Company, unaudited statements of income and of cash flows for such fiscal quarter, and an unaudited balance sheet and a statement of stockholders’ equity as of the end of such fiscal quarter, all prepared in accordance with GAAP (except that such financial statements may (i) be subject to normal year-end audit adjustments and (ii) not contain all notes thereto that may be required in accordance with GAAP);
(cd) as soon as practicable, but in any event within forty-five (45) days after the end of each of the first three (3) quarters of each fiscal year of the Company, a statement showing the number of shares of each class and series of capital stock and securities convertible into or exercisable for shares of capital stock outstanding at the end of the period, the Common Stock issuable upon conversion or exercise of any outstanding securities convertible or exercisable for Common Stock and the exchange ratio or exercise price applicable thereto, and the number of shares of issued stock options and stock options not yet issued but reserved for issuance, if any, all in sufficient detail as to permit any each Major Investor to calculate its their respective percentage equity ownership in the Company, and certified by the chief financial officer or chief executive officer of the Company as being true, complete complete, and correct;
(de) as soon as practicable, but in any event thirty (30) days before the end of each fiscal year, a budget and business plan for the next fiscal year (collectively, the “Budget”), approved by the Board of Directors and prepared on a quarterly basis, including balance sheets, income statements, and statements of cash flow for such quarters and, promptly after prepared, any other budgets or revised budgets prepared by the Company; and
(e) such other information relating to the financial condition, business, prospects or corporate affairs of the Company as any Major Investor may from time to time reasonably request; provided, however, that the Company shall not be obligated under this Subsection 3.1 to provide information (i) that the Company reasonably determines in good faith to be a trade secret or confidential information (unless covered by an enforceable confidentiality agreement, in form acceptable to the Company) or (ii) the disclosure of which would adversely affect the attorney-client privilege between the Company and its counsel. If, for any period, the Company has any subsidiary whose accounts are consolidated with those of the Company, then in respect of such period the financial statements delivered pursuant to the foregoing sections shall be the consolidated and consolidating financial statements of the Company and all such consolidated subsidiaries. Notwithstanding anything else in this Subsection 3.1 to the contrary, the Company may cease providing the information set forth in this Subsection 3.1 during the period starting with the date sixty (60) days before the Company’s good-faith estimate of the date of filing of a registration statement if it reasonably concludes it must do so to comply with the SEC rules applicable to such registration statement and related offering; provided that the Company’s covenants under this Subsection 3.1 shall be reinstated at such time as the Company is no longer actively employing its commercially reasonable efforts to cause such registration statement to become effective.the
Appears in 2 contracts
Sources: Investors’ Rights Agreement (Neon Therapeutics, Inc.), Investors’ Rights Agreement (Neon Therapeutics, Inc.)
Delivery of Financial Statements. The Company shall deliver to each Major Investor, provided that the Board of Directors has not reasonably determined that such Major Investor is (or, in the case of a Major Investor that is an individual, is employed by or serves as a consultant to) a competitor of the Company:
(a) as soon as practicable, but in any event within one hundred twenty eighty (120180) days after the end of each fiscal year of the Company, (i) a balance sheet as of the end of such year, (ii) statements of income and of cash flows for such year, and a comparison between (x) the actual amounts as of and for such fiscal year and (y) the comparable amounts for the prior year and as included in the Budget (as defined in Subsection Section 3.1(e)) for such year, with an explanation of any material differences between such amounts and a schedule as to the sources and applications of funds for such year, and (iii) a statement of stockholders’ equity as of the end of such year, all such financial statements audited and certified by independent public accountants of nationally recognized standing selected by the Company and approved by the Board of Directors, including which approval shall include the approval of the Preferred Directors;
(b) as soon as practicable, but in any event within forty-five thirty (4530) days after the end of each of the first three (3) quarters quarter of each fiscal year of the Company, unaudited statements of income and of cash flows for such fiscal quarter, and an unaudited balance sheet and a statement of stockholders’ equity as of the end of such fiscal quarter, all prepared in accordance with GAAP (except that such financial statements may (i) be subject to normal year-end audit adjustments and (ii) not contain all notes thereto that may be required in accordance with GAAP);
(c) as soon as practicable, but in any event within forty-five thirty (4530) days after the end of each of the first three (3) quarters quarter of each fiscal year of the Company, a statement showing the number of shares of each class and series of capital stock and securities convertible into or exercisable for shares of capital stock outstanding at the end of the period, the Common Stock issuable upon conversion or exercise of any outstanding securities convertible or exercisable for Common Stock and the exchange ratio or exercise price applicable thereto, and the number of shares of issued stock options and stock options not yet issued but reserved for issuance, if any, all in sufficient detail as to permit any the Major Investor Investors to calculate its their respective percentage equity ownership in the Company, and certified by the chief financial officer or chief executive officer of the Company as being true, complete complete, and correct;
(d) as soon as practicable, but in any event within thirty (30) days of the end of each month, an unaudited income statement for such month, and an unaudited balance sheet as of the end of such month, all prepared in accordance with GAAP (except that such financial statements may (i) be subject to normal year-end audit adjustments and (ii) not contain all notes thereto that may be required in accordance with GAAP);
(e) as soon as practicable, but in any event thirty (30) days before the end of each fiscal year, a budget and business plan for the next fiscal year (collectively, the “Budget”), approved by the Board of Directors and prepared on a quarterly monthly basis, including balance sheets, income statements, and statements of cash flow for such quarters months and, promptly after prepared, any other budgets or revised budgets prepared by the Company; and
(ef) such other information relating to the financial condition, business, prospects prospects, or corporate affairs of the Company as any Major Investor may from time to time reasonably request; provided, however, that the Company shall not be obligated under this Subsection Section 3.1 to provide information (i) that the Company reasonably determines in good faith to be a trade secret or confidential information (unless covered by an enforceable confidentiality agreement, in form acceptable to the Company) or (ii) the disclosure of which would adversely affect the attorney-client privilege between the Company and its counsel. If, for any period, the Company has any subsidiary whose accounts are consolidated with those of the Company, then in respect of such period the financial statements delivered pursuant to the foregoing sections shall be the consolidated and consolidating financial statements of the Company and all such consolidated subsidiaries. Notwithstanding anything else in this Subsection Section 3.1 to the contrary, the Company may cease providing the information set forth in this Subsection Section 3.1 at any time during the period starting with the date sixty (60) days before the Company’s good-faith estimate of the date of filing of a registration statement if it reasonably concludes it must do so to comply with the SEC rules applicable to such registration statement and related offering; provided that the Company’s covenants under this Subsection Section 3.1 shall be reinstated at such time as the Company is no longer actively employing its commercially reasonable efforts to cause such registration statement to become effective.
Appears in 2 contracts
Sources: Investors’ Rights Agreement (Eleven Biotherapeutics, Inc.), Investors’ Rights Agreement (Eleven Biotherapeutics, Inc.)
Delivery of Financial Statements. The Company shall deliver to each Major Investor, provided that the Board of Directors has not reasonably determined that such Major Investor is (or, in the case of a Major Investor that is an individual, is employed by or serves as a consultant to) a competitor of the CompanyCompetitor:
(a) as soon as practicable, but in any event within one hundred twenty eighty (120180) days after the end of each fiscal year of the Company, Company (i) a balance sheet as of the end of such year, (ii) statements of income and of cash flows for such year, and a comparison between (x) the actual amounts as of and for such fiscal year and (y) the comparable amounts for the prior year and as included in the Budget (as defined in Subsection 3.1(e)) for such year, with an explanation of any material differences between such amounts and a schedule as to the sources and applications of funds for such year, and (iii) a statement of stockholders’ equity as of the end of such year, all such financial statements (other than the financial statements for the fiscal year ended December 31, 2016) shall be audited and certified by independent public accountants of recognized standing selected by the Company and approved by Board or a committee of the Board of Directors, including the Preferred DirectorsBoard;
(b) as soon as practicable, but in any event within forty-five (45) days after the end of each of the first three (3) quarters of each fiscal year of the Company, unaudited statements of income and of cash flows for such fiscal quarter, and an unaudited balance sheet and a statement of stockholders’ equity as of the end of such fiscal quarter, all prepared in accordance with GAAP (except that such financial statements may (i) be subject to normal year-end audit adjustments adjustments; and (ii) not contain all notes thereto that may be required in accordance with GAAP);
(c) as soon as practicable, but in any event within forty-five (45) days after the end of each of the first three (3) quarters of each fiscal year of the Company, a statement showing the number of shares of each class and series of capital stock and securities convertible into or exercisable for shares of capital stock outstanding at the end of the period, the Common Stock issuable upon conversion or exercise of any outstanding securities convertible or exercisable for Common Stock and the exchange ratio or exercise price applicable thereto, and the number of shares of issued stock options and stock options not yet issued but reserved for issuance, if any, all in sufficient detail as to permit any the Major Investor Investors to calculate its their respective percentage equity ownership in the Company, and certified by the chief financial officer or chief executive officer of the Company as being true, complete complete, and correct;
(d) as soon as practicable, but in any event within thirty (30) days before of the end of each month, an unaudited income statement and statement of cash flows for such month, and an unaudited balance sheet and statement of stockholders’ equity as of the end of such month, all prepared in accordance with GAAP (except that such financial statements may (i) be subject to normal year-end audit adjustments and (ii) not contain all notes thereto that may be required in accordance with GAAP);
(e) as soon as practicable, but in any event thirty-one (31) days after the beginning of each fiscal year, a budget and business plan for the next such fiscal year (collectively, the “Budget”), approved by the Board of Directors and prepared on a quarterly monthly basis, including balance sheets, income statements, and statements of cash flow for such quarters months and, promptly after prepared, any other budgets or revised budgets prepared by the Company;
(f) with respect to the financial statements called for in Subsection 3.1(a), Subsection 3.1(b) and Subsection 3.1(d), an instrument executed by the chief financial officer of the Company certifying that such financial statements were prepared in accordance with GAAP consistently applied with prior practice for earlier periods (except as otherwise set forth in Subsection 3.1(b) and Subsection 3.1(d)) and fairly present the financial condition of the Company and its results of operation for the periods specified therein; and
(eg) such other information relating to the financial condition, business, prospects prospects, or corporate affairs of the Company as any Major Investor may from time to time reasonably request; provided, however, that the Company shall not be obligated under this Subsection 3.1 to provide information (i) that the Company reasonably determines in good faith to be a trade secret or confidential information (unless covered by an enforceable confidentiality agreement, in a form acceptable to the Company) ); or (ii) the disclosure of which would adversely affect the attorney-client privilege between the Company and its counsel. If, for any period, the Company has any subsidiary whose accounts are consolidated with those of the Company, then in respect of such period the financial statements delivered pursuant to the foregoing sections shall be the consolidated and consolidating financial statements of the Company and all such consolidated subsidiaries. Notwithstanding anything else in this Subsection 3.1 to the contrary, the Company may cease providing the information set forth in this Subsection 3.1 during the period starting with the date sixty thirty (6030) days before the Company’s good-faith estimate of the date of filing of a registration statement if it reasonably concludes it must do so to comply with the SEC rules applicable to such registration statement and related offering; provided that the Company’s covenants under this Subsection 3.1 shall be reinstated at such time as the Company is no longer actively employing its commercially reasonable efforts to cause such registration statement to become effective.
Appears in 2 contracts
Sources: Investors’ Rights Agreement (Vir Biotechnology, Inc.), Investors’ Rights Agreement (Vir Biotechnology, Inc.)
Delivery of Financial Statements. The Company shall deliver to each Major Investor, provided that the Board of Directors (including a majority of the Preferred Directors) has not reasonably determined that such Major Investor is (or, in the case of a Major Investor that is an individual, is employed by or serves as a consultant to) a competitor of the CompanyCompetitor:
(a) as soon as practicable, but in any event within one hundred twenty (120) days after the end of each fiscal year of the Company, Company (i) a balance sheet as of the end of such year, (ii) statements of income and of cash flows for such year, and a comparison between (x) the actual amounts as of and for such fiscal year and (y) the comparable amounts for the prior year and as included in the Budget (as defined in Subsection 3.1(e)) for such year, with an explanation of any material differences between such amounts and a schedule as to the sources and applications of funds for such year, and (iii) a statement of stockholders’ equity as of the end of such year, all such financial statements with each being prepared in accordance with GAAP, audited and certified by independent public accountants selected by the Company and approved by the Board of Directors, Directors (including a majority of the Preferred Directors);
(b) as soon as practicable, but in any event within forty-five thirty (4530) days after the end of each of the first three (3) quarters of each fiscal year of the Company, unaudited statements of income and of cash flows for such fiscal quarter, and an unaudited balance sheet and a statement of stockholders’ equity as of the end of such fiscal quarter, all prepared in accordance with GAAP (except that such financial statements may (i) be subject to normal year-end audit adjustments adjustments; and (ii) not contain all notes thereto that may be required in accordance with GAAP);
(c) as soon as practicable, but in any event within forty-five thirty (4530) days after the end of each of the first three (3) quarters of each fiscal year of the Company, a statement showing the number of shares of each class and series of capital stock and securities convertible into or exercisable for shares of capital stock outstanding at the end of the period, the Common Stock issuable upon conversion or exercise of any outstanding securities convertible or exercisable for Common Stock and the exchange ratio or exercise price applicable thereto, and the number of shares of issued stock options and stock options not yet issued but reserved for issuance, if any, all in sufficient detail as to permit any the Major Investor Investors to calculate its their respective percentage equity ownership in the Company, and certified by the chief financial officer or chief executive officer of the Company as being true, complete complete, and correct;
(d) as soon as practicable, but in any event thirty (30) days before the end of each fiscal year, a budget and business plan for the next fiscal year (collectively, the “Budget”), approved by the Board of Directors and prepared on a quarterly monthly basis, including balance sheets, income statements, and statements of cash flow for such quarters months and, promptly after prepared, any other budgets or revised budgets prepared by the Company; and
(e) such other information relating to the financial condition, business, prospects prospects, or corporate affairs of the Company as any Major Investor may from time to time reasonably request; provided, however, that the Company shall not be obligated under this Subsection 3.1 to provide information (i) that the Company reasonably determines in good faith to be a trade secret or confidential information (unless covered by an enforceable confidentiality agreement, in a form reasonably acceptable to the Company) , it being agreed that the confidentiality provisions of Section 3.4 hereof shall constitute such an enforceable confidentiality agreement with respect to any Major Investor party to this Agreement); or (ii) the disclosure of which would adversely affect the attorney-client privilege between the Company and its counsel. If, for any period, the Company has any subsidiary whose accounts are consolidated with those of the Company, then in respect of such period the financial statements delivered pursuant to the foregoing sections shall be the consolidated and consolidating financial statements of the Company and all such consolidated subsidiaries. Notwithstanding anything else in this Subsection 3.1 to the contrary, the Company may cease providing the information set forth in this Subsection 3.1 during the period starting with the date sixty (60) days before the Company’s good-faith estimate of the date of submission or filing of a registration statement if it reasonably concludes it must do so to comply with the SEC rules applicable to such registration statement and related offering; provided that the Company’s covenants under this Subsection 3.1 shall be reinstated at such time as the Company is no longer actively employing its commercially reasonable efforts to cause such registration statement to become effective.
Appears in 2 contracts
Sources: Investors’ Rights Agreement, Investors’ Rights Agreement (AVROBIO, Inc.)
Delivery of Financial Statements. The Company shall shall, upon request, deliver to each Investor (or transferee of an Investor) that holds at least 1,000,000 shares of Registrable Securities (subject to appropriate adjustment for stock splits, stock dividends, combinations or the like and assuming the conversion of all outstanding Preferred Stock) (a “Major Investor, provided that the Board of Directors has not reasonably determined that such Major Investor is (or, in the case of a Major Investor that is an individual, is employed by or serves as a consultant to) a competitor of the Company:”):
(a) as soon as practicable, but in any event within one hundred twenty fifty (120150) days after the end of each fiscal year of the Company, (i) an income statement for such fiscal year, a balance sheet as of the end of such year, (ii) statements of income Company and of cash flows for such year, and a comparison between (x) the actual amounts as of and for such fiscal year and (y) the comparable amounts for the prior year and as included in the Budget (as defined in Subsection 3.1(e)) for such year, with an explanation of any material differences between such amounts and a schedule as to the sources and applications of funds for such year, and (iii) a statement of stockholdersshareholders’ equity as of the end of such year, all and a statement of cash flows for such year, such year-end financial statements reports to be in reasonable detail, prepared in accordance with generally accepted accounting principles (“GAAP”), and audited and certified by independent public accountants of nationally recognized standing selected by the Company and approved by the Board of Directors, including the Preferred DirectorsCompany;
(b) as soon as practicable, but in any event within forty-five (45) days after the end of each of the first three (3) quarters of each fiscal year of the Company, an unaudited statements of income and statement, statement of cash flows for such fiscal quarter, quarter and an unaudited balance sheet and a statement of stockholders’ equity as of the end of such fiscal quarter, all prepared in accordance with GAAP (except that such financial statements may (i) be subject to normal year-end audit adjustments and (ii) not contain all notes thereto that may be required in accordance with GAAP);
(c) within thirty (30) days of the end of each month, an unaudited income statement and statement of cash flows and balance sheet for and as of the end of such month, in reasonable detail;
(d) upon reasonable request by a Major Investor, furnish to such Major Investor as soon as practicable, but in any event within forty-five (45) days after the end of each of the first three (3) quarters of each fiscal year of a capitalization table setting forth the Company, a statement showing the number ’s fully-diluted capitalization as of shares of each class and series of capital stock and securities convertible into or exercisable for shares of capital stock outstanding at the end of the period, the Common Stock issuable upon conversion or exercise of any outstanding securities convertible or exercisable for Common Stock and the exchange ratio or exercise price applicable thereto, and the number of shares of issued stock options and stock options not yet issued but reserved for issuance, if any, all in sufficient detail as to permit any Major Investor to calculate its percentage equity ownership in the Company, and certified by the chief financial officer or chief executive officer of the Company as being true, complete and correct;
(d) as soon as practicable, but in any event thirty (30) days before the end of each fiscal year, a budget and business plan for the next fiscal year (collectively, the “Budget”), approved by the Board of Directors and prepared on a quarterly basis, including balance sheets, income statements, and statements of cash flow for such quarters and, promptly after prepared, any other budgets or revised budgets prepared by the Companymost recent quarter; and
(e) such other information relating to the financial condition, business, prospects business or corporate affairs of the Company as any the Major Investor may from time to time reasonably request; , provided, however, that the Company shall not be obligated under this Subsection 3.1 subsection (d) or any other subsection of Section 2.1 to provide information (i) that the Company reasonably determines it deems in good faith to be a trade secret or similar confidential information (unless covered by an enforceable confidentiality agreement, in form acceptable to the Company) or (ii) the disclosure of which would adversely affect the attorney-client privilege between the Company and its counsel. If, for any period, the Company has any subsidiary whose accounts are consolidated with those of the Company, then in respect of such period the financial statements delivered pursuant to the foregoing sections shall be the consolidated and consolidating financial statements of the Company and all such consolidated subsidiaries. Notwithstanding anything else in this Subsection 3.1 to the contrary, the Company may cease providing the information set forth in this Subsection 3.1 during the period starting with the date sixty (60) days before the Company’s good-faith estimate of the date of filing of a registration statement if it reasonably concludes it must do so to comply with the SEC rules applicable to such registration statement and related offering; provided that the Company’s covenants under this Subsection 3.1 shall be reinstated at such time as the Company is no longer actively employing its commercially reasonable efforts to cause such registration statement to become effectiveinformation.
Appears in 2 contracts
Sources: Investors’ Rights Agreement (Marketo, Inc.), Investors’ Rights Agreement (Marketo, Inc.)
Delivery of Financial Statements. The (a) For so long as (x) the Preferred Investors hold at least 10% of the Preferred Stock issued pursuant to the Purchase Agreement or (y) the Common Investors in the aggregate hold, or “beneficially own” (within the meaning of Rule 13d-3 under the Exchange Act) at least 10% of the issued and outstanding Common Stock of the Company, at any time that the Company is not required to file periodic reports with the SEC, the Company shall deliver to each Major Preferred Investor and/or Common Investor, provided that the Board of Directors has not reasonably determined that such Major Investor is (or, in the case of a Major Investor that is an individual, is employed by or serves as a consultant to) a competitor of the Companyapplicable:
(ai) as soon as practicable, but in any event within one hundred twenty (120) ninety days after the end of each fiscal year of the Company, (i) a balance sheet as for each of the end Company and each of such yearits Subsidiaries, (ii) statements of an income and of cash flows for such year, and a comparison between (x) the actual amounts as of and statement for such fiscal year and (y) the comparable amounts for the prior year and as included in the Budget (as defined in Subsection 3.1(e)) for such year, with an explanation of any material differences between such amounts and a schedule as to the sources and applications of funds for such yearbalance sheet, and (iii) a statement of stockholders’ stockholder’s equity as of the end of such fiscal year, all and a statement of cash flows for such fiscal year, such year-end financial statements reports to be in reasonable detail, prepared in accordance with GAAP, and audited and certified by independent public accountants a nationally recognized accounting firm selected by the Company and approved by reasonably acceptable to the Board of Directors, including the Preferred DirectorsMajority Common Investors;
(bii) as soon as practicable, but in any event within forty-five (45) thirty days after the end of each of the first three (3) quarters of each fiscal year of the Company, for the Company and each of its Subsidiaries, an unaudited statements of income and statement for such quarter, statement of cash flows for such fiscal quarter, quarter and an unaudited balance sheet and a statement of stockholders’ equity as of the end of such fiscal quarter;
(iii) as promptly as practicable but in any event within thirty days of the end of each month, all an unaudited income statement and statement of cash flows for such month, and a balance sheet for and as of the end of such month, in reasonable detail;
(iv) with respect to the financial statements called for in subsections (ii) and (iii) of this Section 6.1(a), an instrument executed by the Chief Financial Officer or Chief Executive Officer of the Company and certifying that such financial statements were prepared in accordance with GAAP consistently applied with prior practice for earlier periods (except with the exception of footnotes that such may be required by GAAP) and fairly present in all material respects the financial statements may (i) be condition of the Company and its Subsidiaries and its results of operation for the period specified, subject to normal year-end audit adjustments and (ii) not contain all notes thereto that may be required in accordance with GAAP)adjustment;
(cv) notices of events that have had or could reasonably be expected to have a material and adverse effect on the Company and its Subsidiaries, taken as a whole, as soon as practicable, but in any event within forty-five (45) days after practicable following the end of each of the first three (3) quarters of each fiscal year of the Company, a statement showing the number of shares of each class and series of capital stock and securities convertible into or exercisable for shares of capital stock outstanding at the end of the period, the Common Stock issuable upon conversion or exercise occurrence of any outstanding securities convertible or exercisable for Common Stock and the exchange ratio or exercise price applicable thereto, and the number of shares of issued stock options and stock options not yet issued but reserved for issuance, if any, all in sufficient detail as to permit any Major Investor to calculate its percentage equity ownership in the Company, and certified by the chief financial officer or chief executive officer of the Company as being true, complete and correct;
(d) as soon as practicable, but in any event thirty (30) days before the end of each fiscal year, a budget and business plan for the next fiscal year (collectively, the “Budget”), approved by the Board of Directors and prepared on a quarterly basis, including balance sheets, income statements, and statements of cash flow for such quarters and, promptly after prepared, any other budgets or revised budgets prepared by the Companyevent; and
(evi) such other information relating to the financial condition, business, prospects or corporate affairs of the Company and its Subsidiaries as any Major Preferred Investor or Common Investor may from time to time reasonably request; provided.
(b) Notwithstanding the foregoing, howeverat all times, that the Company shall not be obligated under this Subsection 3.1 to provide information (i) that the Company reasonably determines in good faith to be a trade secret or confidential information (unless covered by an enforceable confidentiality agreement, in form acceptable to the Company) or (ii) the disclosure of which would adversely affect the attorney-client privilege between the Company and its counsel. If, for any period, the Company has any subsidiary whose accounts are consolidated with those of the Company, then in respect of such period the financial statements delivered pursuant to the foregoing sections shall be the consolidated and consolidating financial statements of the Company and all such consolidated subsidiaries. Notwithstanding anything else in this Subsection 3.1 to the contrary, the Company may cease providing the information set forth in this Subsection 3.1 during the period starting with the date sixty (60) days before the Company’s good-faith estimate of the date of filing of a registration statement if it reasonably concludes it must do so to comply with the SEC rules applicable to such registration statement and related offering; provided that the Company’s covenants under this Subsection 3.1 shall be reinstated at such time as the Company is no longer actively employing its use commercially reasonable efforts to cause deliver the financial statements listed Sections 6.1(a)(i), 6.1(a)(ii), and 6.1(a)(iii) promptly after such registration statement to become effectivestatements are internally available.
Appears in 2 contracts
Sources: Investor Rights Agreement (Wabash National Corp /De), Securities Purchase Agreement (Wabash National Corp /De)
Delivery of Financial Statements. The Company shall shall, upon request, deliver to each Investor (or transferee of an Investor) that holds at least 3,606,168 shares of Common Stock (assuming full conversion, exchange and exercise of all Company securities held by such Investor that are convertible, exchangeable or exercisable into shares of Common Stock, and appropriately adjusted for any stock split, dividend, combination or other recapitalization) (a “Major Investor”); provided, provided however, that any entity that (i) is formed for the Board specific purpose of Directors has not reasonably determined that such Major Investor is (or, in the case of a Major Investor that is an individual, is employed by or serves as a consultant to) a competitor acquiring shares of the Company’s capital stock and/or (ii) has assets, a majority of which consist of shares of the Company’s capital stock as of immediately following such entity’s acquisition of shares of the Company’s capital stock (each, an “SPV Entity”), shall not constitute an Affiliate of such Investor for the purpose of qualifying as a Major Investor:
(a) as soon as practicable, but in any event within one hundred twenty (120) days after the end of each fiscal year of the Company, (i) an income statement for such fiscal year, a balance sheet as of the end of such year, (ii) statements of income Company and of cash flows for such year, and a comparison between (x) the actual amounts as of and for such fiscal year and (y) the comparable amounts for the prior year and as included in the Budget (as defined in Subsection 3.1(e)) for such year, with an explanation of any material differences between such amounts and a schedule as to the sources and applications of funds for such year, and (iii) a statement of stockholders’ equity as of the end of such year, all and an statement of cash flows for such year, such year-end financial statements reports to be in reasonable detail, prepared in accordance with generally accepted accounting principles (“GAAP”), and audited and certified by independent public accountants of nationally recognized standing selected by the Company and approved by Company; provided, however, the financial statements may be unaudited for any year with the approval of the Board of Directors, Directors (including a least one of the Preferred Directors);
(b) as soon as practicable, but in any event within forty-five (45) days after the end of each of the first three (3) quarters of each fiscal year of the Company, an unaudited statements of income and statement, statement of cash flows for such fiscal quarter, quarter and an unaudited balance sheet and a statement of stockholders’ equity as of the end of such fiscal quarter, all prepared in accordance with GAAP (except that such financial statements may (i) be subject to normal year-end audit adjustments and (ii) not contain all notes thereto that may be required in accordance with GAAP);
(c) as soon as practicable, but in any event within forty-five thirty (4530) days after of the end of each month, an unaudited income statement and statement of the first three (3) quarters cash flows for such month, and an unaudited balance sheet as of each fiscal year of the Company, a statement showing the number of shares of each class and series of capital stock and securities convertible into or exercisable for shares of capital stock outstanding at the end of the period, the Common Stock issuable upon conversion or exercise of any outstanding securities convertible or exercisable for Common Stock and the exchange ratio or exercise price applicable thereto, and the number of shares of issued stock options and stock options not yet issued but reserved for issuance, if anysuch month, all prepared in sufficient detail as accordance with GAAP (except that such financial statements may (i) be subject to permit any Major Investor to calculate its percentage equity ownership normal year-end audit adjustments and (ii) not contain all notes thereto that may be required in the Company, and certified by the chief financial officer or chief executive officer of the Company as being true, complete and correctaccordance with GAAP);
(d) as soon as practicable, but in any event thirty at least sixty (3060) days before prior to the end of each fiscal year, a budget and business plan for the next fiscal year (collectively, the “Budget”)year, approved by the Board of Directors (including at least one of the Preferred Directors) and prepared on a quarterly monthly basis, including balance sheets, income statements, statements and statements of cash flow flows for such quarters months and, promptly after as soon as prepared, any other budgets or revised budgets prepared by the Company; and;
(e) such other information relating to the financial condition, business, prospects business or corporate affairs of the Company Company, as any well as detailed capitalization information, as the Major Investor may from time to time reasonably request; , provided, however, that the Company shall not be obligated under this Subsection 3.1 subsection (f) or any other subsection of Section 2.1 to provide information that (i) that the Company reasonably determines it deems in good faith to be a trade secret or similar confidential information (unless covered by an enforceable confidentiality agreement, in form acceptable to the Company) or (ii) the disclosure of which would adversely affect the attorney-client privilege between the Company and its counsel. ; If, for any period, the Company has any subsidiary whose accounts are consolidated with those of the Company, then in respect of such period the financial statements delivered pursuant to the foregoing sections shall be the consolidated and consolidating financial statements of the Company and all such consolidated subsidiaries. Notwithstanding anything else in this Subsection 3.1 Section 2.1 to the contrary, the Company may cease providing the information set forth in this Subsection 3.1 Section 2.1 during the period starting with the date sixty thirty (6030) days before the Company’s good-faith estimate of the date of filing of a registration statement if it reasonably concludes it must do so to comply with the SEC rules applicable to such registration statement and related offering; provided that the Company’s covenants under this Subsection 3.1 Section 2.1 shall be reinstated at such time as the Company is no longer actively employing its commercially reasonable efforts to cause such registration statement to become effective.
Appears in 2 contracts
Sources: Investors’ Rights Agreement (Amplitude, Inc.), Investors’ Rights Agreement (Amplitude, Inc.)
Delivery of Financial Statements. The Company shall deliver to each Major InvestorInvestor and each Investor owning shares of Series C Preferred Stock purchased from the Company pursuant to the Series C Purchase Agreement, provided that the Board of Directors has not reasonably determined that such Major Investor is (oror Investor, in as the case of a Major Investor that is an individualmay be, is employed by or serves as a consultant to) a competitor of the Company:
(a) as soon as practicable, but in any event within one hundred twenty (120) days after the end of each fiscal year of the Company, (i) a balance sheet as of the end of such year, (ii) statements of income and of cash flows for such year, and a comparison between (x) the actual amounts as of and for such fiscal year and (y) the comparable amounts for the prior year and as included in the Budget (as defined in Subsection 3.1(e)) for such year, with an explanation of any material differences between such amounts and a schedule as to the sources and applications of funds for such year, and (iii) a statement of stockholders’ equity as of the end of such year, all such financial statements audited and certified by independent public accountants selected by the Company and approved by the Board of Directors, including the Preferred DirectorsDirector;
(b) as soon as practicable, but in any event within forty-five (45) days after the end of each of the first three (3) quarters of each fiscal year of the Company, unaudited statements of income and of cash flows for such fiscal quarter, and an unaudited balance sheet and a statement of stockholders’ equity as of the end of such fiscal quarter, all prepared in accordance with GAAP (except that such financial statements may (i) be subject to normal year-end audit adjustments and (ii) not contain all notes thereto that may be required in accordance with GAAP);
(c) as soon as practicable, but in any event within forty-five (45) days after the end of each of the first three (3) quarters of each fiscal year of the Company, a statement showing the number of shares of each class and series of capital stock and securities convertible into or exercisable for shares of capital stock outstanding at the end of the period, the Common Stock issuable upon conversion or exercise of any outstanding securities convertible or exercisable for Common Stock and the exchange ratio or exercise price applicable thereto, and the number of shares of issued stock options and stock options not yet issued but reserved for issuance, if any, all in sufficient detail as to permit any Major Investor to calculate its percentage equity ownership in the Company, and certified by the chief financial officer or chief executive officer of the Company as being true, complete complete, and correct;
(d) as soon as practicable, but in any event thirty (30) days before the end of each fiscal year, a budget and business plan for the next fiscal year (collectively, the “Budget”), approved by the Board of Directors and prepared on a quarterly basis, including balance sheets, income statements, and statements of cash flow for such quarters and, promptly after prepared, any other budgets or revised budgets prepared by the Company; and
(ed) such other information relating to the financial condition, business, prospects prospects, or corporate affairs of the Company as any Major Investor may from time to time reasonably request; provided, however, that the Company shall not be obligated under this Subsection 3.1 to provide information (i) that the Company reasonably determines in good faith to be a trade secret or confidential information (unless covered by an enforceable confidentiality agreement, in form acceptable to the Company) or a trade secret or (ii) the disclosure of which would adversely affect the attorney-client privilege between the Company and its counsel. If, for any period, the Company has any subsidiary whose accounts are consolidated with those of the Company, then in respect of such period the financial statements delivered pursuant to the foregoing sections shall be the consolidated and consolidating financial statements of the Company and all such consolidated subsidiaries. Notwithstanding anything else in this Subsection 3.1 to the contrary, the Company may cease providing the information set forth in this Subsection 3.1 during the period starting with the date sixty (60) days before the Company’s good-faith estimate of the date of filing of a registration statement if it reasonably concludes it must do so to comply with the SEC rules applicable to such registration statement and related offering; provided that the Company’s covenants under this Subsection 3.1 shall be reinstated at such time as the Company is no longer actively employing its commercially reasonable efforts to cause such registration statement to become effective. Notwithstanding anything else in this Subsection 3.1 to the contrary, (x) the Company shall not be obligated to provide any information under Subsection 3.1(d) to the Major Investor that purchased Series D Preferred Stock from the Company pursuant to the Purchase Agreement, or any of its permitted transferees, and (y) the Company shall not be obligated to provide any information under Subsection 3.1 to the Major Investor that purchased Series D Preferred Stock from the Company pursuant to the Purchase Agreement, or any of its permitted transferees, unless such Major Investor continues to own shares representing at least fifty percent (50%) of the combined aggregate voting power of (1) the shares of Series D Preferred Stock and Series D-1 Preferred Stock purchased by such Major Investor pursuant to the Purchase Agreement and (2) the shares of Common Stock purchased by such Major Investor pursuant to the Stock Purchase Agreement, dated as of December 19, 2014, by and between the Flagship VentureLabs IV LLC and such Major Investor.
Appears in 2 contracts
Sources: Series D Preferred Stock Purchase Agreement (Seres Therapeutics, Inc.), Investors’ Rights Agreement (Seres Therapeutics, Inc.)
Delivery of Financial Statements. The Company shall deliver to each Major Investor, ; provided that the Board of Directors has not reasonably determined that such Major Investor is (or, in the case of a Major Investor that is an individual, is employed by or serves as a consultant to) a competitor of the CompanyCompetitor:
(a) as soon as practicable, but in any event within one hundred twenty ninety (12090) days after the end of each fiscal year of the Company, Company (i) a balance sheet as of the end of such year, (ii) statements of income and of cash flows for such year, and a comparison between (x) the actual amounts as of and for such fiscal year and (y) the comparable amounts for the prior year and as included in the Budget (as defined in Subsection Section 3.1(e)) for such year, with an explanation of any material differences between such amounts and a schedule as to the sources and applications of funds for such year, and (iii) a statement of stockholders’ equity as of the end of such year, all such financial statements audited and certified by independent public accountants of nationally recognized standing selected by the Company and approved by the Board of Directors, including the Preferred Directors;Company.
(b) as soon as practicable, but in any event within forty-five (45) days after the end of each of the first three (3) quarters quarter of each fiscal year of the Company, unaudited statements of income and of cash flows for such fiscal quarter, and an unaudited balance sheet and a statement of stockholders’ equity as of the end of such fiscal quarterquarter and a comparison against the budget, all prepared in accordance with GAAP (except that such financial statements may (i) be subject to normal year-end audit adjustments adjustments; and (ii) not contain all notes thereto that may be required in accordance with GAAP);
(c) as soon as practicable, but in any event within forty-five (45) days after the end of each of the first three (3) quarters quarter of each fiscal year of the Company, a statement showing the number of shares of each class and series of capital stock and securities convertible into or exercisable for shares of capital stock outstanding at the end of the period, the Common Stock issuable upon conversion or exercise of any outstanding securities convertible or exercisable for Common Stock and the exchange ratio or exercise price applicable thereto, and the number of shares of issued stock options and stock options not yet issued but reserved for issuance, if any, all in sufficient detail as to permit any the Major Investor Investors to calculate its their respective percentage equity ownership in the Company, and certified by the chief financial officer or chief executive officer of the Company as being true, complete complete, and correct;
(d) as soon as practicable, but in any event within thirty (30) days after the end of each month, an unaudited income statement and statement of cash flows for such month, and an unaudited balance sheet and statement of stockholders’ equity as of the end of such month and a comparison against budget, all prepared in accordance with GAAP (except that such financial statements may (i) be subject to normal year-end audit adjustments and (ii) not contain all notes thereto that may be required in accordance with GAAP);
(e) as soon as practicable, but in any event thirty (30) days before the end of each fiscal year, a budget and business plan for the next fiscal year (collectivelyyear, the “Budget”), approved by the Board of Directors and prepared on a quarterly monthly basis, including balance sheets, income statements, and statements of cash flow for such quarters months and, promptly after prepared, any other budgets or revised budgets prepared by the CompanyCompany (such budget and business plan that is approved by the Board of Directors (including the approval of at least two (2) of the Preferred Directors then seated, the “Requisite Preferred Director Vote”) is collectively referred to herein as the “Budget”); and
(ef) such other information relating to the financial condition, business, prospects prospects, or corporate affairs of the Company as any Major Investor may from time to time reasonably request; provided, however, that the Company shall not be obligated under this Subsection Section 3.1 to provide information (i) that the Company reasonably determines in good faith to be a trade secret or confidential information (unless covered by an enforceable confidentiality agreement, in a form acceptable to the Company) ); or (ii) the disclosure of which would adversely affect the attorney-client privilege between the Company and its counsel. If, for any period, the Company has any subsidiary whose accounts are consolidated with those of the Company, then in respect of such period the financial statements delivered pursuant to the foregoing sections shall be the consolidated and consolidating financial statements of the Company and all such consolidated subsidiaries. Notwithstanding anything else in this Subsection Section 3.1 to the contrary, the Company may cease providing the information set forth in this Subsection Section 3.1 during the period starting with the date sixty thirty (6030) days before the Company’s good-faith estimate of the date of filing of a registration statement if it reasonably concludes it must do so to comply with the SEC rules applicable to such registration statement and related offering; provided that the Company’s covenants under this Subsection Section 3.1 shall be reinstated at such time as the Company is no longer actively employing its commercially reasonable efforts to cause such registration statement to become effective.
Appears in 2 contracts
Sources: Investors’ Rights Agreement (Lexeo Therapeutics, Inc.), Investors’ Rights Agreement (Lexeo Therapeutics, Inc.)
Delivery of Financial Statements. The Company shall deliver to each Major Investor, provided that the Board of Directors has not reasonably determined that such Major Investor is (or, in the case of a Major Investor that is an individual, is employed by or serves as a consultant to) a competitor of the Company (it being understood and agreed that no Fidelity Investor, no ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Investor, no BlackRock Investor and no CapRe Investor shall be deemed a competitor of the Company:):
(a) as soon as practicable, but in any event within one hundred twenty eighty (120180) days after the end of each fiscal year of the Company, Company (i) a balance sheet as of the end of such year, (ii) statements of income and of cash flows for such year, and a comparison between (x) the actual amounts as of and for such fiscal year and (y) the comparable amounts for the prior year and as included in the Budget (as defined in Subsection 3.1(e)) for such year, with an explanation of any material differences between such amounts and a schedule as to the sources and applications of funds for such year, and (iii) a statement of stockholders’ equity as of the end of such year, all such financial statements audited and certified by independent public accountants selected by the Company and approved by the Board of Directors, including the Lead Preferred Directors;Director
(b) as soon as practicable, but in any event within forty-five (45) days after the end of each of the first three (3) quarters of each fiscal year of the Company, unaudited statements of income and of cash flows for such fiscal quarter, and an unaudited balance sheet and a statement of stockholders’ equity as of the end of such fiscal quarter, all prepared in accordance with GAAP (except that such financial statements may (i) be subject to normal year-end audit adjustments and (ii) not contain all notes thereto that may be required in accordance with GAAP);
(c) as soon as practicable, but in any event within forty-five (45) days after the end of each of the first three (3) quarters of each fiscal year of the Company, a statement showing the number of shares of each class and series of capital stock and securities convertible into or exercisable for shares of capital stock outstanding at the end of the period, the Common Stock issuable upon conversion or exercise of any outstanding securities convertible or exercisable for Common Stock and the exchange ratio or exercise price applicable thereto, and the number of shares of issued stock options and stock options not yet issued but reserved for issuance, if any, all in sufficient detail as to permit any Major Investor to calculate its percentage equity ownership in the Company, and certified by the chief financial officer or chief executive officer president of the Company as being true, complete and correct;; and
(d) as soon as practicable, but in any event thirty (30) days before the end of each fiscal year, a budget and business plan for the next fiscal year (collectively, the “Budget”), approved by the Board of Directors and prepared on a quarterly basis, including balance sheets, income statements, and statements of cash flow for such quarters and, promptly after prepared, any other budgets or revised budgets prepared by the Company; and
(e) such other information relating to the financial condition, business, prospects or corporate affairs of the Company as any Major Investor may from time to time reasonably request; provided, however, that the Company shall not be obligated under this Subsection 3.1 to provide information (i) that the Company reasonably determines in good faith to be a trade secret or confidential information (unless covered by an enforceable confidentiality agreement, in form acceptable to the Company) or (ii) the disclosure of which would adversely affect the attorney-client privilege between the Company and its counsel. If, for any period, the Company has any subsidiary whose accounts are consolidated with those of the Company, then in respect of such period the financial statements delivered pursuant to the foregoing sections shall be the consolidated and consolidating financial statements of the Company and all such consolidated subsidiaries. Notwithstanding anything else in this Subsection 3.1 to the contrary, the Company may cease providing the information set forth in this Subsection 3.1 during the period starting with the date sixty (60) days before the Company’s good-faith estimate of the date of filing of a registration statement if it reasonably concludes it must do so to comply with the SEC rules applicable to such registration statement and related offering; provided that the Company’s covenants under this Subsection 3.1 shall be reinstated at such time as the Company is no longer actively employing its commercially reasonable efforts to cause such registration statement to become effective. The Company shall promptly and accurately respond, and shall use its commercially reasonable efforts to cause its transfer agent to promptly respond, to requests for information made on behalf of any Fidelity Investor, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Investor, BlackRock Investor or CapRe Investor relating to (i) accounting or securities law matters required in connection with its respective audit or (ii) the actual holdings of such Fidelity Investor, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Investor, BlackRock Investor or CapRe Investor, including in relation to the total outstanding shares; provided, however, that the Company shall not be obligated to provide any such information that could reasonably result in a violation of applicable law, conflict with a confidentiality obligation of the Company or such exclusion is reasonably necessary to preserve the attorney-client privilege.
Appears in 2 contracts
Sources: Investors’ Rights Agreement (Rubius Therapeutics, Inc.), Investors’ Rights Agreement (Rubius Therapeutics, Inc.)
Delivery of Financial Statements. The Company shall deliver to each Major Investor, provided that the Board of Directors has not reasonably determined that such Major Investor is (or, in the case of a Major Investor that is an individual, is employed by or serves as a consultant to) a competitor of the Company:
(a) as soon as practicable, but in any event within one hundred twenty (120) days after the end of each fiscal year of the Company, Company (i) a balance sheet as of the end of such year, (ii) statements of income and of cash flows for such year, and a comparison between (x) the actual amounts as of and for such fiscal year and (y) the comparable amounts for the prior year and as included in the Budget (as defined in Subsection 3.1(e)) for such year, with an explanation of any material differences between such amounts and a schedule as to the sources and applications of funds for such year, and (iii) a statement of stockholders’ equity as of the end of such year, all such financial statements audited and certified by independent public accountants of recognized standing selected by the Company and approved by unanimously acceptable to the Board of Directors, including the Preferred Directors;
(b) as soon as practicable, but in any event within forty-forty five (45) days after the end of each of the first three (3) quarters of each fiscal year of the Company, unaudited statements of income and of cash flows for such fiscal quarter, and an unaudited balance sheet and a statement of stockholders’ equity as of the end of such fiscal quarter, all prepared in accordance with GAAP (except that such financial statements may (i) be subject to normal year-end audit adjustments adjustments; and (ii) not contain all notes thereto that may be required in accordance with GAAP);
(c) as soon as practicable, but in any event within forty-five (45) days after the end of each of the first three (3) quarters quarter of each fiscal year of the Company, a statement showing the number of shares of each class and series of capital stock and securities convertible into or exercisable for shares of capital stock outstanding at the end of the period, the Common Stock issuable upon conversion or exercise of any outstanding securities convertible or exercisable for Common Stock and the exchange ratio or exercise price applicable thereto, and the number of shares of issued stock options and stock options not yet issued but reserved for issuance, if any, all in sufficient detail as to permit any the Major Investor Investors to calculate its their respective percentage equity ownership in the Company, and certified by the chief financial officer or chief executive officer of the Company as being true, complete and correct;
(d) as soon as practicable, but in any event within thirty (30) days of the end of each month, an unaudited income statement for such month, and an unaudited balance sheet as of the end of such month, all prepared in accordance with GAAP (except that such financial statements may (i) be subject to normal year-end audit adjustments and (ii) not contain all notes thereto that may be required in accordance with GAAP);
(e) as soon as practicable, but in any event thirty (30) days before the end of each fiscal year, a budget and business plan for the next fiscal year (collectively, the “Budget”), approved by the Board of Directors and prepared on a quarterly monthly basis, including balance sheets, income statements, and statements of cash flow for such quarters months and, promptly after prepared, any other budgets or revised budgets prepared by the Company; and
(ef) such other information relating to the financial condition, business, prospects prospects, or corporate affairs of the Company as any Major Investor may from time to time reasonably request; provided, however, that the Company shall not be obligated under this Subsection 3.1 to provide information (i) that the Company reasonably determines in good faith to be a trade secret or confidential information (unless covered by an enforceable confidentiality agreement, in a form acceptable to the Company) ); or (ii) the disclosure of which would adversely affect the attorney-client privilege between the Company and its counsel. If, for any period, the Company has any subsidiary whose accounts are consolidated with those of the Company, then in respect of such period the financial statements delivered pursuant to the foregoing sections shall be the consolidated and consolidating financial statements of the Company and all such consolidated subsidiaries. Notwithstanding anything else in this Subsection 3.1 to the contrary, the Company may cease providing the information set forth in this Subsection 3.1 during the period starting with the date sixty (60) days before the Company’s good-faith estimate of the date of filing of a registration statement if it reasonably concludes it must do so to comply with the SEC rules applicable to such registration statement and related offering; provided that the Company’s covenants under this Subsection 3.1 shall be reinstated at such time as the Company is no longer actively employing its commercially reasonable efforts to cause such registration statement to become effective. Further, for purposes of this Subsection 3.1, any Person that is a limited partner of Battery Ventures (or is an Affiliate of such limited partner), and who otherwise qualifies or would qualify as a Major Investor, shall not have an independent right to receive any of the foregoing, but shall instead be entitled to receive such information directly from Battery Ventures on a confidential basis. Nothing in this Subsection 3.1 or in any other part of this Agreement shall afford any Major Investor that is a “foreign person” under 31 C.F.R. §800.224 the right or ability to (a) have access to any material nonpublic technical information; (b) appoint any member or observer to the Board of Directors of the Company; (c) have any involvement, other than through voting of shares, in the Company’s substantive decision-making regarding (i) the use, development, acquisition, safekeeping, or release of any sensitive personal data of U.S. citizens that the Company maintains or collects; (ii) the use, development, acquisition, or release of critical technologies; or (iii) the management, operation, manufacture, or supply of covered investment critical infrastructure; or (d) control the Company. For purposes of this paragraph, all terms used in this paragraph are to be defined consistently with the terms used in Section 721 of the U.S. Defense Production Act of 1950, as amended, and the regulations at 31 C.F.R Part 800, as they may be amended from time to time.
Appears in 2 contracts
Sources: Investors’ Rights Agreement (ServiceTitan, Inc.), Investors’ Rights Agreement (ServiceTitan, Inc.)
Delivery of Financial Statements. The Company shall deliver to each Major Investor, provided that the Board of Directors has not reasonably determined that such Major Investor is (or, in the case of a Major Investor that is an individual, is employed by or serves as a consultant to) a competitor of the Companydeliver:
(a) to each Investor, as soon as practicable, but in any event within one hundred twenty (120) days after the end of each fiscal year of the Company, (i) a balance sheet as of the end of such year, (ii) statements of income and of cash flows for such year, (iii) a statement of stockholders’ equity as of the end of such year, all such financial statements set forth in subsections (i) through (iii) audited and certified by independent public accountants of regionally recognized standing selected by the Company, and (iv) a comparison between (xA) the actual amounts as of and for such fiscal year and (yB) the comparable amounts for the prior year and as included in the Budget (as defined in Subsection 3.1(e)below) for such year, with an explanation of any material differences between such amounts and a schedule as to the sources and applications of funds for such year, and (iii) a statement of stockholders’ equity as of the end of such year, all such financial statements audited and certified by independent public accountants selected by the Company and approved by the Board of Directors, including the Preferred Directors;
(b) to each Investor, as soon as practicable, but in any event within forty-five (45) days after the end of each of the first three (3) quarters of each fiscal year quarter of the Company, (i) unaudited statements of income and of cash flows for such fiscal quarter, and (ii) an unaudited balance sheet and a statement of stockholders’ equity as of the end of such fiscal quarter, all prepared in accordance with GAAP (except that such financial statements contemplated by subsection (i) or (ii) may (iA) be subject to normal year-end audit adjustments and (iiB) not contain all notes thereto that may be required in accordance with GAAP), and (iii) a comparison between (x) the actual amounts as of and for such fiscal quarter and (y) the comparable amounts included in the Budget for such quarter, with an explanation of any material differences between such amounts and a schedule as to the sources and applications of funds for such quarter;
(c) to each Investor, as soon as practicable, but in any event within forty-five (45) days after a budget and business plan for the end of each of the first three (3) quarters of each next fiscal year (collectively, the “Budget”), approved by the Board and prepared on a quarterly basis, including balance sheets, income statements, and statements of cash flow for such months and, promptly after prepared, any other budgets or revised budgets prepared by the Company;
(d) to each Major Investor, a statement showing copies of all materials distributed to the Board; and
(e) to each Investor, promptly and accurately, and shall use its best efforts to cause its transfer agent to promptly respond to requests by such Investor from time to time for, information relating to, the (i) accounting or securities law matters required in connection with such Investor’s audit or (ii) the actual holdings of such Investor, including in relation to the total outstanding number of shares of each class and series of capital stock and securities convertible into or exercisable for shares of capital stock outstanding at the end of the period, the Common Stock issuable upon conversion or exercise of any outstanding securities convertible or exercisable for Common Stock and the exchange ratio or exercise price applicable thereto, and the number of shares of issued stock options and stock options not yet issued but reserved for issuance, if any, all in sufficient detail as to permit any Major the requesting Investor to calculate its respective percentage equity ownership in the Company, and certified by the chief financial officer or chief executive officer of the Company as being true, complete and correct;
(d) as soon as practicable, but in any event thirty (30) days before the end of each fiscal year, a budget and business plan for the next fiscal year (collectively, the “Budget”), approved by the Board of Directors and prepared on a quarterly basis, including balance sheets, income statements, and statements of cash flow for such quarters and, promptly after prepared, any other budgets or revised budgets prepared by the Company; and
(e) such other information relating to the financial condition, business, prospects or corporate affairs of the Company as any Major Investor may from time to time reasonably request; provided, however, that the Company shall not be obligated under this Subsection 3.1 to provide information (i) that the Company reasonably determines in good faith to be a trade secret or confidential information (unless covered by an enforceable confidentiality agreement, in form acceptable to the Company) or (ii) the disclosure of which would adversely affect the attorney-client privilege between the Company and its counsel. If, for any period, the Company has any subsidiary whose accounts are consolidated with those of the Company, then in respect of such period the financial statements delivered pursuant to the foregoing sections shall be the consolidated and consolidating financial statements of the Company and all such consolidated subsidiaries. Notwithstanding anything else in this Subsection 3.1 to the contrary, other than with respect to any Major Investor, the Company may cease providing the information set forth in this Subsection 3.1 during the period starting with the date sixty (60) days before the Company’s good-faith estimate of the date of filing of a registration statement if it reasonably concludes it must do so to comply with the SEC rules applicable to such registration statement and related offering; provided that the Company’s covenants under this Subsection 3.1 shall be reinstated at such time as the Company is no longer actively employing its commercially reasonable efforts to cause such registration statement to become effective.
Appears in 2 contracts
Sources: Investors’ Rights Agreement (Harmony Biosciences Holdings, Inc.), Investors’ Rights Agreement (Harmony Biosciences Holdings, Inc.)
Delivery of Financial Statements. The Company shall deliver to each Major Investor, provided that the Board of Directors has not reasonably determined that such Major Investor is (or, in the case of a Major Investor that is an individual, is employed by or serves as a consultant to) a competitor of the Company:
(a) as soon as practicable, but in any event within one hundred twenty (120) days after the end of each fiscal year of the Company, Company (i) a balance sheet as of the end of such year, (ii) statements of income and of cash flows for such year, and a comparison between (x) the actual amounts as of and for such fiscal year and (y) the comparable amounts for the prior year and as included in the Budget (as defined in Subsection 3.1(eSection 3.1(d)) for such year, with an explanation of any material differences between such amounts and a schedule as to the sources and applications of funds for such year, and (iii) a statement of stockholders’ equity as of the end of such year, all such financial statements audited and certified by independent public accountants of recognized standing selected by the Company and approved by the Board of Directors, including Directors of the Preferred DirectorsCompany (or the Audit Committee thereof);
(b) as soon as practicable, but in any event within forty-five (45) days after the end of each of the first three (3) quarters of each fiscal year of the Company, unaudited statements of income and of cash flows for such fiscal quarter, and an unaudited balance sheet and a statement of stockholders’ equity as of the end of such fiscal quarter, all prepared in accordance with GAAP (except that such financial statements may (i) be subject to normal year-end audit adjustments adjustments; and (ii) not contain all notes thereto that may be required in accordance with GAAP);
(c) as soon as practicable, but in any event within forty-five (45) days after concurrently with the end of each delivery of the first three (3financial statements described in Sections 3.1(a) quarters of each fiscal year of the Companyand 3.1(b), a statement showing the number of shares of each class and series of capital stock and securities convertible into or exercisable for shares of capital stock outstanding at the end of the period, the Common Stock issuable upon conversion or exercise of any outstanding securities convertible or exercisable for Common Stock and the exchange ratio or exercise price applicable thereto, and the number of shares of issued stock options and stock options not yet issued but reserved for issuance, if any, all in sufficient detail as to permit any the Major Investor Investors to calculate its their respective percentage equity ownership in the Company, and certified by the chief financial officer or chief executive officer of the Company as being true, complete and correct;
(d) as soon as practicable, but in any event within thirty (30) days of the end of each month, an unaudited income statement for such month, and an unaudited balance sheet as of the end of such month, all prepared in accordance with GAAP (except that such financial statements may (i) be subject to normal year-end audit adjustments and (ii) not contain all notes thereto that may be required in accordance with GAAP);
(e) as soon as practicable, but in any event thirty (30) days before the end of each fiscal year, a budget and business plan for the next fiscal year (collectively, the “Budget”), approved by the Board of Directors and prepared on a quarterly monthly basis, including balance sheets, income statements, and statements of cash flow for such quarters months and, promptly after prepared, any other budgets or revised budgets prepared by the Company; and;
(ef) such other information relating to the financial condition, business, prospects prospects, or corporate affairs of the Company as any Major Investor may from time to time reasonably request; provided, however, that the Company shall not be obligated under this Subsection Section 3.1 to provide information (i) that the Company reasonably determines in good faith to be a trade secret or confidential information (unless covered by an enforceable confidentiality agreement, in a form acceptable to the Company) ); or (ii) the disclosure of which would adversely affect the attorney-client privilege between the Company and its counsel. If, for any period, the Company has any subsidiary whose accounts are consolidated with those of the Company, then in respect of such period the financial statements delivered pursuant to the foregoing sections shall be the consolidated and consolidating financial statements of the Company and all such consolidated subsidiaries. The Company shall be reasonably responsive to requests for information from each Major Investor relating to issues that may impact auditor independence rules applicable to each such Major Investor. The Company shall promptly and accurately respond, and shall use its commercially reasonable efforts to cause its transfer agent to promptly respond, to requests for information made on behalf of any Advised Holder relating to (i) accounting or securities law matters required in connection with its audit or (ii) the actual holdings of the Advised Holder, including in relation to the total outstanding shares; provided, however, that the Company shall not be obligated to provide any such information that could reasonably result in a violation of applicable law or conflict with a confidentiality obligation of the Company. The Company shall provide to each Advisory Entity (on behalf of its Advised Holders), a copy of information packages and similar materials provided to directors in connection with ordinary course Board meetings, except that each Advisory Entity may be excluded from access to any material or portion thereof if the Board determines in good faith, upon advice of counsel, that such exclusion is reasonably necessary to preserve the attorney-client privilege or to protect the Company’s highly confidential proprietary information. On or prior to the effectiveness of the IPO, the Company shall provide each Advised Holder written confirmation of its equity holdings in the Company (on an as-converted to Common Stock basis). Notwithstanding anything else in this Subsection Section 3.1 to the contrary, the Company may cease providing the information set forth in this Subsection Section 3.1 during the period starting with the date sixty (60) days before the Company’s good-faith estimate of the date of filing of a registration statement if it reasonably concludes it must do so to comply with the SEC rules applicable to such registration statement and related offering; provided that the Company’s covenants under this Subsection Section 3.1 shall be reinstated at such time as the Company is no longer actively employing its commercially reasonable efforts to cause such registration statement to become effective.
Appears in 2 contracts
Sources: Investors’ Rights Agreement (Editas Medicine, Inc.), Investors’ Rights Agreement (Editas Medicine, Inc.)
Delivery of Financial Statements. The Company shall deliver to each Major Investor, provided that the Board of Directors has not reasonably determined that such Major Investor is (or, in the case of a Major Investor that is an individual, is employed by or serves as a consultant to) a competitor of the Company:
(a) as soon as practicable, but in any event within one hundred twenty (120) days after the end of each fiscal year of the Company, Company (i) a balance sheet as of the end of such year, (ii) statements of income and of cash flows for such year, and a comparison between (x) the actual amounts as of and for such fiscal year and (y) the comparable amounts for the prior year and as included in the Budget (as defined in Subsection Section 3.1(e)) for such year, with an explanation of any material differences between such amounts and a schedule as to the sources and applications of funds for such year, and (iii) a statement of stockholders’ ' equity as of the end of such year, all such financial statements audited and certified by independent public accountants of nationally or regionally recognized standing selected by the Company and approved by the Board of Directors, including the Preferred DirectorsCompany;
(b) as soon as practicable, but in any event within forty-five (45) days after the end of each of the first three (3) quarters of each fiscal year of the Company, unaudited statements of income and of cash flows for such fiscal quarter, and an unaudited balance sheet and a statement of stockholders’ ' equity as of the end of such fiscal quarter, all prepared in accordance with GAAP (except that such financial statements may (i) be subject to normal year-end audit adjustments adjustments; and (ii) not contain all notes thereto that may be required in accordance with GAAP);
(c) as soon as practicable, but in any event within forty-five (45) days after the end of each of the first three (3) quarters of each fiscal year of the Company, a statement showing the number of shares of each class and series of capital stock and securities convertible into or exercisable for shares of capital stock outstanding at the end of the period, the Common Stock issuable upon conversion or exercise of any outstanding securities convertible or exercisable for Common Stock and the exchange ratio or exercise price applicable thereto, and the number of shares of issued stock options and stock options not yet issued but reserved for issuance, if any, all in sufficient detail as to permit any the Major Investor Investors to calculate its their respective percentage equity ownership in the Company, and certified by the chief financial officer or chief executive officer of the Company as being true, complete complete, and correct;
(d) as soon as practicable, but in any event within thirty (30) days of the end of each month, an unaudited income statement and statement of cash flows for such month, and an unaudited balance sheet and statement of stockholders' equity as of the end of such month, all prepared in accordance with GAAP (except that such financial statements may (i) be subject to normal year-end audit adjustments and (ii) not contain all notes thereto that may be required in accordance with GAAP);
(e) as soon as practicable, but in any event thirty (30) days before the end of each fiscal year, a budget and business plan for the next fiscal year (collectively, the “"Budget”"), approved by the Board of Directors and prepared on a quarterly monthly basis, including balance sheets, income statements, and statements of cash flow for such quarters months and, promptly after prepared, any other budgets or revised budgets prepared by the Company;
(f) with respect to the financial statements called for in Section 3.1(a), Section 3.1(b) and Section 3.1(d), an instrument executed by the chief financial officer and chief executive officer of the Company certifying that such financial statements were prepared in accordance with GAAP consistently applied with prior practice for earlier periods (except as otherwise set forth in Section 3.1(b) and Section 3.1(d)) and fairly present the financial condition of the Company and its results of operation for the periods specified therein; and
(eg) such other information relating to the financial condition, business, prospects prospects, or corporate affairs of the Company as any Major Investor may from time to time reasonably request; provided, however, that the Company shall not be obligated under this Subsection Section 3.1 to provide information (i) that the Company reasonably determines in good faith to be a trade secret or confidential information (unless covered by an enforceable confidentiality agreement, in a form acceptable to the Company) ); or (ii) the disclosure of which which, in the opinion of counsel, would adversely affect the attorney-client privilege between the Company and its counsel. If, for any period, the Company has any subsidiary whose accounts are consolidated with those of the Company, then in respect of such period the financial statements delivered pursuant to the foregoing sections shall be the consolidated and consolidating financial statements of the Company and all such consolidated subsidiaries. Notwithstanding anything else in this Subsection Section 3.1 to the contrary, the Company may cease providing the information set forth in this Subsection Section 3.1 during the period starting with the date sixty thirty (6030) days before the Company’s 's good-faith estimate of the date of filing of a registration statement if it reasonably concludes it must do so to comply with the SEC rules applicable to such registration statement and related offering; provided that the Company’s 's covenants under this Subsection Section 3.1 shall be reinstated at such time as the Company is no longer actively employing its commercially reasonable efforts to cause such registration statement to become effective.
Appears in 2 contracts
Sources: Investors' Rights Agreement (Cerecor Inc.), Investors' Rights Agreement (Cerecor Inc.)
Delivery of Financial Statements. (a) The Company shall shall, upon request, deliver to each Investor (or transferee of an Investor) that holds at least one million four hundred thousand (1,400,000) shares of Registrable Securities (appropriately adjusted for any stock split, dividend, combination or other recapitalization) (a “Major Investor, provided that the Board of Directors has not reasonably determined that such Major Investor is (or, in the case of a Major Investor that is an individual, is employed by or serves as a consultant to) a competitor of the Company:”):
(ai) as soon as practicable, but in any event within one hundred twenty eighty (120180) days after the end of each fiscal year of the Company, (i) an income statement for such fiscal year, a balance sheet as of the end of such year, (ii) statements of income Company and of cash flows for such year, and a comparison between (x) the actual amounts as of and for such fiscal year and (y) the comparable amounts for the prior year and as included in the Budget (as defined in Subsection 3.1(e)) for such year, with an explanation of any material differences between such amounts and a schedule as to the sources and applications of funds for such year, and (iii) a statement of stockholders’ equity as of the end of such year, all and a statement of cash flows for such year, such year-end financial reports to be in reasonable detail, prepared in accordance with generally accepted accounting principles (“GAAP”), and, from and after the date that the Company begins auditing its financial statements upon request by the Board, audited and certified by independent public accountants of nationally recognized standing selected by the Company and approved by the Board of Directors, including the Preferred DirectorsCompany;
(bii) as soon as practicable, but in any event within forty-five (45) days after the end of each of the first three four (34) quarters of each fiscal year of the Company, an unaudited statements of income statement and statement of cash flows for such fiscal quarter, quarter and an unaudited balance sheet and a statement of stockholders’ equity as of the end of such fiscal quarter, all prepared in accordance with GAAP (except that such financial statements may (iA) be subject to normal year-end audit adjustments and (iiB) not contain all notes thereto that may be required in accordance with GAAP);
(ciii) as soon as practicable, but in any event within forty-five (45) days after the end of each of the first three four (34) quarters of each fiscal year of the Company, a statement showing the number of shares of each class and series of capital stock and securities convertible into or exercisable for shares of capital stock outstanding at the end of the period, the Common Stock issuable upon conversion or exercise of any outstanding securities convertible or exercisable for Common Stock and the exchange ratio or exercise price applicable thereto, and the number of shares of issued stock options and stock options not yet issued but reserved for issuance, if any, all in sufficient detail as to permit any the Major Investor Investors to calculate its their respective percentage equity ownership in the Company, and certified by the chief financial officer or chief executive officer of the Company as being true, complete and correct;
(div) within thirty (30) days of the end of each month, an unaudited income statement for such month, and an unaudited balance sheet as of the end of such month, all prepared in accordance with GAAP (except that such financial statements may (A) be subject to normal year-end audit adjustments and (B) not contain all notes thereto that may be required in accordance with GAAP);
(v) as soon as practicable, but in any event at least thirty (30) days before prior to the end of each fiscal year, a budget and business plan for the next fiscal year (collectivelyyear, the “Budget”), approved by the Board of Directors and prepared on a quarterly monthly basis, including balance sheets, income statements, statements and statements of cash flow flows for such quarters months and, promptly after as soon as prepared, any other budgets or revised budgets prepared by the Company; and
(evi) such other information relating to the financial condition, business, prospects business or corporate affairs of the Company as any the Major Investor may from time to time reasonably request; , provided, however, that the Company shall not be obligated under this Subsection subsection (v) or any other subsection of Section 3.1 to provide information that (iA) that the Company reasonably determines it deems in good faith to be a trade secret or similar confidential information (unless covered by an enforceable confidentiality agreement, in form acceptable to the Company) or (iiB) the disclosure of which would adversely affect the attorney-client privilege between the Company and its counsel. If, for any period, the Company has any subsidiary whose accounts are consolidated with those of the Company, then in respect of such period the financial statements delivered pursuant to the foregoing sections shall be the consolidated and consolidating financial statements of the Company and all such consolidated subsidiaries. .
(b) Notwithstanding anything else in this Subsection Section 3.1 to the contrary, the Company may cease providing the information set forth in this Subsection Section 3.1 during the period starting with the date sixty thirty (6030) days before the Company’s good-faith estimate of the date of filing of a registration statement if it reasonably concludes it must do so to comply with the SEC rules applicable to such registration statement and related offering; provided that the Company’s covenants under this Subsection Section 3.1 shall be reinstated at such time as the Company is no longer actively employing its commercially reasonable efforts to cause such registration statement to become effective.
Appears in 2 contracts
Sources: Investors’ Rights Agreement (RAPT Therapeutics, Inc.), Investors’ Rights Agreement (RAPT Therapeutics, Inc.)
Delivery of Financial Statements. (a) The Company shall deliver to each Major Investor(i) Scottish Mortgage Investment Trust plc and The Schiehallion Fund Limited (collectively, provided that the Board of Directors has not reasonably determined that such Major Investor is (or“BG Investors”), in so long as the case of a Major Investor that is an individual, is employed by or serves as a consultant to) a competitor BG Investors own any shares of the Company:’s capital stock, (ii) SVF, so long as SVF owns any shares of the Company’s capital stock, (iii) Gamnat Pte. Ltd. ( “GIC”), so long as GIC owns any shares of the Company’s capital stock and (iv) to each Investor (or transferee of an Investor) that together with their Affiliates holds an aggregate of at least 10,000,000 shares of Preferred Stock, and/or shares of Common Stock issued upon conversion thereof (appropriately adjusted for any stock split, dividend, combination or other recapitalization) (collectively, with the BG Investors, SVF and GIC, the “Major Investors” and each, a “Major Investor”):
(ai) as soon as practicable, but in any event within one hundred twenty (120) days after the end of each fiscal year of the Company, (i) a balance sheet as of the end of such year, (ii) statements of an audited income and of cash flows for such year, and a comparison between (x) the actual amounts as of and statement for such fiscal year and (y) the comparable amounts for the prior year and as included in the Budget (as defined in Subsection 3.1(e)) for such year, with an explanation audited balance sheet of any material differences between such amounts the Company and a schedule as to the sources and applications of funds for such year, and (iii) a statement of stockholders’ equity as of the end of such year, all and a statement of cash flows for such year, such year-end financial statements audited and certified by independent public accountants selected by the Company and approved by the Board of Directorsreports to be in reasonable detail, including the Preferred Directorsprepared in accordance with generally accepted accounting principles (“GAAP”);
(bii) as soon as practicable, but in any event within forty-five (45) days after the end of each of the first three (3) quarters of each fiscal year of the Company, an unaudited statements of income statement and statement of cash flows for such fiscal quarter, quarter and an unaudited balance sheet and a statement of stockholders’ equity as of the end of such fiscal quarter, all prepared in accordance with GAAP (except that such financial statements may (iA) be subject to normal year-end audit adjustments and (iiB) not contain all notes thereto that may be required in accordance with GAAP);
(ciii) as soon as practicable, but in any event within forty-five (45) days after the end of each of the first three (3) quarters quarter of each fiscal year of the Company, a statement showing the number of shares of each class and series of capital stock and securities convertible into or exercisable for shares of capital stock outstanding at the end of the period, the Common Stock issuable upon conversion or exercise of any outstanding securities convertible or exercisable for Common Stock and the exchange ratio or exercise price applicable thereto, and the number of shares of issued stock options and stock options not yet issued but reserved for issuance, if any, all in sufficient detail as to permit any the Major Investor Investors to calculate its their respective percentage equity ownership in the Company, and certified by the chief financial officer or chief executive officer of the Company as being true, complete and correct;
(div) as soon as practicable, but in any event thirty sixty (3060) days before after the end of each fiscal year, a budget and business plan Business Plan (as defined below) for the next fiscal year (collectively, the “Budget”), approved by the Board of Directors and prepared on a quarterly basis, including balance sheets, income statements, and statements of cash flow for such quarters pursuant to Section 3.14(n) and, promptly after prepared, any other budgets or revised budgets prepared by the CompanyCompany and approved by the Board; and
(ev) such other information relating to the financial condition, business, prospects business or corporate affairs of the Company as any the Major Investor may from time to time reasonably request; provided, however, that the Company shall not be obligated under this Subsection subsection (v) or any other subsection of Section 3.1 to provide information that (iA) that the Company reasonably determines it deems in good faith to be a trade secret or similar confidential information (unless covered by an enforceable confidentiality agreement, in form acceptable to the Company) or (iiB) the disclosure of which would adversely affect the attorney-client privilege between the Company and its counsel. If, for any period, the Company has any subsidiary whose accounts are consolidated with those of the Company, then in respect of such period the financial statements delivered pursuant to the foregoing sections shall be the consolidated and consolidating financial statements of the Company and all such consolidated subsidiaries. .
(b) Notwithstanding anything else in this Subsection Section 3.1 to the contrary, the Company may cease providing the information set forth in this Subsection Section 3.1 during the period starting with the date sixty thirty (6030) days before the Company’s good-faith estimate of the date of filing of a registration statement if it reasonably concludes it must do so to comply with the SEC rules applicable to such registration statement and related offering; provided that the Company’s covenants under this Subsection Section 3.1 shall be reinstated at such time as the Company is no longer actively employing its commercially reasonable efforts to cause such registration statement to become effective.
Appears in 2 contracts
Sources: Investors’ Rights Agreement (Zymergen Inc.), Investors’ Rights Agreement (Zymergen Inc.)
Delivery of Financial Statements. The Company shall shall, upon request, deliver to each Investor (or transferee of an Investor) that holds (together with their respective Affiliates) at least 30,000,000 shares of Registrable Securities (as adjusted for any stock split, stock dividend, combination, or other recapitalization or reclassifcation effected after the date hereof) (a “Major Investor, provided that the Board of Directors has not reasonably determined that such Major Investor is (or, in the case of a Major Investor that is an individual, is employed by or serves as a consultant to) a competitor of the Company:”):
(a) as soon as practicable, but in any event within one hundred and twenty (120) days after the end of each fiscal year of the Company, (i) an income statement for such fiscal year, a balance sheet as of the end of such year, (ii) statements of income Company and of cash flows for such year, and a comparison between (x) the actual amounts as of and for such fiscal year and (y) the comparable amounts for the prior year and as included in the Budget (as defined in Subsection 3.1(e)) for such year, with an explanation of any material differences between such amounts and a schedule as to the sources and applications of funds for such year, and (iii) a statement of stockholders’ equity as of the end of such year, all and a statement of cash flows for such year, such year-end financial statements reports to be in reasonable detail, prepared in accordance with generally accepted accounting principles (“GAAP”), and audited and certified by independent public accountants an accounting firm selected by the Company and approved by the Board of Directors, including the Preferred Directors;
(b) as soon as practicable, but in any event within forty-five thirty (4530) days after the end of each of the first three (3) quarters of each fiscal year of the Company, unaudited statements of income and of cash flows for such fiscal quarter, and an unaudited balance sheet and a statement of stockholders’ equity total headcount as of the end of such fiscal quarterquarter with monthly detail, all prepared in accordance with GAAP (except that such financial statements may (i) be subject to normal year-year- end audit adjustments adjustments; and (ii) not contain all notes thereto that may be required in accordance with GAAP);
(c) as soon as reasonably practicable, but in any event within forty-five (45) days after the end of each of the first three (3) quarters of each fiscal year of the Companyfollowing a written request therefor, a statement showing the number of shares of each class and series of capital stock and securities convertible into or exercisable for shares of capital stock outstanding at as of a particular date of determination selected by the end requesting Major Investor (or, if not specified, the date of the periodrequest), the Common Stock issuable upon conversion or exercise of any outstanding securities convertible or exercisable for Common Stock and the exchange ratio or exercise price applicable thereto, and the number of shares of issued stock options and stock options not yet issued but reserved for issuance, if any, and a list of the Company’s outstanding convertible debt securities (which shall include the face amount, issue date, maturity date, interest rate, conversion discount, change of control premium and valuation cap to the extent applicable), all in sufficient detail as to permit any the Major Investor Investors to calculate its their respective percentage equity ownership in the Company, and certified by the chief financial officer or chief executive officer of the Company as being true, complete and correct;; and
(d) as soon as reasonably practicable, but in following a written request therefor, together with a statement providing the purpose for any event thirty (30) days before the end of each fiscal yearsuch request, a budget and business plan for the next fiscal year (collectively, the “Budget”), approved by the Board of Directors and prepared on a quarterly basis, including balance sheets, income statements, and statements of cash flow for such quarters and, promptly after prepared, any other budgets or revised budgets prepared by the Company; and
(e) such other information relating to the financial condition, business, prospects business or corporate affairs of the Company as any the Major Investor may from time to time reasonably request; provided, however, that the Company shall not be obligated under this Subsection 3.1 subsection (d) or any other subsection of Section 2.1 to provide information that (i) that the Company reasonably determines it deems in good faith to be a trade secret or similar confidential information (unless covered by an enforceable confidentiality agreement, in form acceptable to the Company) or (ii) the disclosure of which would adversely affect the attorney-client privilege between the Company and its counsel; and provided, further, that if the Board of Directors has determined, reasonably and in good faith, that a Major Investor is a competitor of the Company, the Company shall not be obligated under this subsection (d) to provide such Major Investor competitive business or product information of the Company. If, for any period, the Company has any subsidiary whose accounts are consolidated with those of the Company, then in respect of such period the financial statements delivered pursuant to the foregoing sections shall be the consolidated and consolidating financial statements of the Company and all such consolidated subsidiaries. Notwithstanding anything else in this Subsection 3.1 to the contrary, the Company may cease providing the information set forth in this Subsection 3.1 during the period starting with the date sixty (60) days before the Company’s good-faith estimate of the date of filing of a registration statement if it reasonably concludes it must do so to comply with the SEC rules applicable to such registration statement and related offering; provided that the Company’s covenants under this Subsection 3.1 shall be reinstated at such time as the Company is no longer actively employing its commercially reasonable efforts to cause such registration statement to become effective.
Appears in 2 contracts
Sources: Investors’ Rights Agreement (Qualtrics International Inc.), Investors’ Rights Agreement (Qualtrics International Inc.)
Delivery of Financial Statements. The Company shall deliver to each Major Investor, provided that the Board of Directors has not reasonably determined that such Major Investor is (or, in the case of a Major Investor that is an individual, is employed by or serves as a consultant to) a competitor of the CompanyCompetitor:
(a) as soon as practicable, but in any event within one hundred twenty (120) days after the end of each fiscal year of the Company, Company (i) a balance sheet as of the end of such year, (ii) statements of income and of cash flows for such year, and a comparison between (x) the actual amounts as of and for such fiscal year and (y) the comparable amounts for the prior year and as included in the Budget (as defined in Subsection 3.1(e)) for such year, with an explanation of any material differences between such amounts and a schedule as to the sources and applications of funds for such year, and (iii) a statement of stockholders’ equity as of the end of such year, all such financial statements audited and certified by independent public accountants of recognized standing selected by the Company and approved by the Board of Directors, including the Preferred DirectorsBoard;
(b) as soon as practicable, but in any event within forty-five (45) days after the end of each of the first three (3) quarters of each fiscal year of the Company, unaudited statements of income and of cash flows for such fiscal quarter, and an unaudited balance sheet and a statement of stockholders’ equity as of the end of such fiscal quarter, all prepared in accordance with GAAP (except that such financial statements may (i) be subject to normal year-end audit adjustments adjustments; and (ii) not contain all notes thereto that may be required in accordance with GAAP);
(c) as soon as practicable, but in any event within forty-five (45) days after the end of each of the first three (3) quarters of each fiscal year of the Company, a statement showing the number of shares of each class and series of capital stock and securities convertible into or exercisable for shares of capital stock outstanding at the end of the period, the Common Stock issuable upon conversion or exercise of any outstanding securities convertible or exercisable for Common Stock and the exchange ratio or exercise price applicable thereto, and the number of shares of issued stock options and stock options not yet issued but reserved for issuance, if any, all in sufficient detail as to permit any the Major Investor Investors to calculate its their respective percentage equity ownership in the Company, and certified by the chief financial officer or chief executive officer of the Company as being true, complete complete, and correct;
(d) as soon as practicable, but in any event within thirty (30) days of the end of each month, an unaudited income statement and statement of cash flows for such month, and an unaudited balance sheet and statement of stockholders’ equity as of the end of such month, all prepared in accordance with GAAP (except that such financial statements may (i) be subject to normal year-end audit adjustments and (ii) not contain all notes thereto that may be required in accordance with GAAP);
(e) as soon as practicable, but in any event thirty (30) days before the end of each fiscal year, a budget and business plan for the next fiscal year (collectively, the “Budget”), approved by the Board of Directors and prepared on a quarterly monthly basis, including balance sheets, income statements, and statements of cash flow for such quarters months and, promptly after prepared, any other budgets or revised budgets prepared by the Company;
(f) with respect to the financial statements called for in Subsection 3.1(a), Subsection 3.1(b) and Subsection 3.1(d), an instrument executed by the chief financial officer of the Company certifying that such financial statements were prepared in accordance with GAAP consistently applied with prior practice for earlier periods (except as otherwise set forth in Subsection 3.1(b) and Subsection 3.1(d)) and fairly present the financial condition of the Company and its results of operation for the periods specified therein; and
(eg) such other information relating to the financial condition, business, prospects prospects, or corporate affairs of the Company as any Major Investor may from time to time reasonably request; provided, however, that the Company shall not be obligated under this Subsection 3.1 to provide information (i) that the Company reasonably determines in good faith to be a trade secret or confidential information (unless covered by an enforceable confidentiality agreement, in a form acceptable to the Company) ); or (ii) the disclosure of which would adversely affect the attorney-client privilege between the Company and its counsel. If, for any period, the Company has any subsidiary whose accounts are consolidated with those of the Company, then in respect of such period the financial statements delivered pursuant to the foregoing sections shall be the consolidated and consolidating financial statements of the Company and all such consolidated subsidiaries. Notwithstanding anything else in this Subsection 3.1 to the contrary, the Company may cease providing the information set forth in this Subsection 3.1 during the period starting with the date sixty thirty (6030) days before the Company’s good-faith estimate of the date of filing of a registration statement if it reasonably concludes it must do so to comply with the SEC rules applicable to such registration statement and related offering; provided that the Company’s covenants under this Subsection 3.1 shall be reinstated at such time as the Company is no longer actively employing its commercially reasonable efforts to cause such registration statement to become effective.
Appears in 2 contracts
Sources: Investors’ Rights Agreement (Sienna Biopharmaceuticals, Inc.), Investors’ Rights Agreement (Sienna Biopharmaceuticals, Inc.)
Delivery of Financial Statements. The Company Commencing after the first anniversary of the date hereof, the Company, upon written request, shall deliver to each Major Investor, provided that the Board of Directors has not reasonably determined that such Major Investor is (or, in the case of a Major Investor that is an individual, is employed by or serves as a consultant to) a competitor of the Company:
(a) as soon as practicable, but in any event within one hundred twenty ninety (12090) days after the end of each fiscal year of the Company, (i) a balance sheet as of the end of such year, (ii) statements of income and of cash flows for such year, and a comparison between (x) the actual amounts as of and for such fiscal year and (y) the comparable amounts for the prior year and as included in the Budget (as defined in Subsection 3.1(e)) for such year, with an explanation of any material differences between such amounts and a schedule as to the sources and applications of funds for such year, and (iii) a statement of stockholders’ equity as of the end of such year, all such financial statements audited and certified by independent public accountants selected by the Company and approved by the Board of Directors, including the Preferred Directors;
(b) as soon as practicable, but in any event within forty-five (45) days after the end of each of the first three (3) quarters of each fiscal year of the Company, unaudited statements of income and of cash flows for such fiscal quarter, and an unaudited balance sheet and a statement of stockholders’ equity as of the end of such fiscal quarter, all prepared in accordance with GAAP (except that such financial statements may (i) be subject to normal year-end yearend audit adjustments and (ii) not contain all notes thereto that may be required in accordance with GAAP);
(c) as soon as practicable, but in any event within forty-five (45) days after the end of each of the first three (3) quarters of each fiscal year of the Company, a statement showing the number of shares of each class and series of capital stock and securities convertible into or exercisable for shares of capital stock outstanding at the end of the period, the Common Stock issuable upon conversion or exercise of any outstanding securities convertible or exercisable for Common Stock and the exchange ratio or exercise price applicable thereto, and the number of shares of issued stock options and stock options not yet issued but reserved for issuance, if any, all in sufficient detail as to permit any the Major Investor Investors to calculate its their respective percentage equity ownership in the Company, and certified by the chief financial officer or chief executive officer of the Company as being true, complete complete, and correct;
(d) as soon as practicable, but in any event within thirty (30) days of the end of each month, an unaudited income statement and statement of cash flows for such month, and an unaudited balance sheet and statement of stockholders’ equity as of the end of such month, all prepared in accordance with GAAP (except that such financial statements may (i) be subject to normal year-end audit adjustments and (ii) not contain all notes thereto that may be required in accordance with GAAP);
(e) as soon as practicable, but in any event thirty (30) days before the end of each fiscal year, a budget and business plan for the next fiscal year (collectively, the “Budget”), approved by the Board of Directors and prepared on a quarterly monthly basis, including balance sheets, income statements, and statements of cash flow for such quarters months and, promptly after prepared, any other budgets or revised budgets prepared by the Company;
(f) with respect to the financial statements called for in Section 3.1(a), Section 3.1(b) and Section 3.1(d), an instrument executed by the chief financial officer and chief executive officer of the Company certifying that such financial statements were prepared in accordance with GAAP consistently applied with prior practice for earlier periods (except as otherwise set forth in Section 3.1(b) and Section 3.1(d)) and fairly present the financial condition of the Company and its results of operation for the periods specified therein; and
(eg) such other information relating to the financial condition, business, prospects prospects, or corporate affairs of the Company as any Major Investor may from time to time reasonably request; provided, however, that the Company shall not be obligated under this Subsection Section 3.1 to provide information (i) that the Company reasonably determines in good faith to be a trade secret or confidential information (unless covered by an enforceable confidentiality agreement, in form acceptable to the Company) or (ii) the disclosure of which would adversely affect the attorney-client privilege between the Company and its counsel. If, for any period, the Company has any subsidiary whose accounts are consolidated with those of the Company, then in respect of such period the financial statements delivered pursuant to the foregoing sections shall be the consolidated and consolidating financial statements of the Company and all such consolidated subsidiaries. Notwithstanding anything else in this Subsection Section 3.1 to the contrary, the Company may cease providing the information set forth in this Subsection Section 3.1 during the period starting with the date sixty (60) days before the Company’s good-faith estimate of the date of filing of a registration statement if it reasonably concludes it must do so to comply with the SEC rules applicable to such registration statement and related offering; provided that the Company’s covenants under this Subsection Section 3.1 shall be reinstated at such time as the Company is no longer actively employing its commercially reasonable efforts to cause such registration statement to become effective.
Appears in 2 contracts
Sources: Investors’ Rights Agreement (Coupon Express, Inc.), Investors' Rights Agreement (Coupon Express, Inc.)
Delivery of Financial Statements. The Company shall deliver to each Major Investor, ; provided that the Board of Directors has not reasonably determined that such Major Investor is (or, in the case of a Major Investor that is an individual, is employed by or serves as a consultant to) a competitor of the CompanyCompetitor:
(a) as soon as practicable, but in any event within one hundred twenty (120) 120 days after the end of each fiscal year of the Company, Company (i) a balance sheet as of the end of such year, (ii) statements of income and of cash flows for such year, year and a comparison between (x) the actual amounts as of and for such fiscal year and (y) the comparable amounts for the prior year and as included in the Budget (as defined in Subsection 3.1(e)below) for such year, with an explanation ; (ii) statements of any material differences between such amounts income and a schedule as to the sources and applications of funds cash flows for such year, ; and (iii) a statement of stockholders’ equity as of the end of such year, all of which shall be unaudited and prepared in accordance with GAAP (except that such financial statements may (x) be subject to normal year-end audit adjustments and (y) not contain all notes thereto that may be required in accordance with GAAP); provided, however that beginning with fiscal year 2023, all financial statements provided in this Section 3.1(a) shall be audited and certified by independent public accountants of nationally recognized standing selected by the Company and approved by Company, unless the Board of Directors, including the Preferred DirectorsRequisite Holders agree otherwise;
(b) as soon as practicable, but in any event within forty-five (45) 45 days after the end of each of the first three (3) quarters quarter of each fiscal year of the Company, unaudited statements of income and of cash flows for such fiscal quarter, and an unaudited balance sheet and a statement of stockholders’ equity and an unaudited balance sheet as of the end of such fiscal quarter, all prepared in accordance with GAAP (except that such financial statements may (i) be subject to normal year-end audit adjustments adjustments; and (ii) not contain all notes thereto that may be required in accordance with GAAP);
(c) as soon as practicable, but in any event within forty-five (45) 45 days after the end of each of the first three (3) quarters quarter of each fiscal year of the Company, a statement showing the number of shares of each class and series of capital stock and securities convertible into or exercisable for shares of capital stock outstanding at the end of the period, the Common Stock issuable upon conversion or exercise of any outstanding securities convertible or exercisable for Common Stock and the exchange ratio or exercise price applicable thereto, and the number of shares of issued stock options and stock options not yet issued but reserved for issuance, if any, all in sufficient detail as to permit any the Major Investor Investors to calculate its their respective percentage equity ownership in the Company, and certified by the chief financial officer or chief executive officer of the Company as being true, complete and correct;
(d) as soon as practicable, but in any event thirty (30) 30 days before the end of each fiscal year, a budget and business plan for the next fiscal year (collectively, the “Budget”), approved by the Board of Directors and prepared on a quarterly monthly basis, including balance sheets, income statements, and statements of cash flow for such quarters months and, promptly after prepared, any other budgets or revised budgets prepared by the Company; and
(e) such other information relating to the capitalization, financial condition, business, prospects prospects, or corporate affairs of the Company as any Major Investor may from time to time reasonably request; provided, however, that the Company shall not be obligated under this Subsection Section 3.1 to provide information (i) that the Company reasonably determines in good faith to be a trade secret or confidential information (unless covered by an enforceable confidentiality agreement, in a form acceptable to the Company) ); or (ii) the disclosure of which would adversely affect the attorney-client privilege between the Company and its counsel. If, for any period, the Company has any subsidiary whose accounts are consolidated with those of the Company, then in respect of such period the financial statements delivered pursuant to the foregoing sections shall be the consolidated and consolidating financial statements of the Company and all such consolidated subsidiaries. Notwithstanding anything else in this Subsection Section 3.1 to the contrary, the Company may cease providing the information set forth in this Subsection Section 3.1 during the period starting with the date sixty (60) 60 days before the Company’s good-faith estimate of the date of filing of a registration statement if it reasonably concludes it must do so to comply with the SEC rules applicable to such registration statement and related offering; provided that the Company’s covenants under this Subsection Section 3.1 shall be reinstated at such time as the Company is no longer actively employing its commercially reasonable efforts to cause such registration statement to become effective.
Appears in 2 contracts
Sources: Investors’ Rights Agreement (CARGO Therapeutics, Inc.), Investors’ Rights Agreement (CARGO Therapeutics, Inc.)
Delivery of Financial Statements. The Company shall deliver to each Major InvestorHolder of at least 10,000,000 shares of Registrable Securities (as may be adjusted from time to time for stock splits, provided stock dividends, combinations, subdivisions, recapitalizations and the like) (each a “Significant Holder”), provided, however, that the Board neither TCH Scarlet Limited nor any of Directors has not reasonably determined that such Major Investor is its Affiliates (or, in the case as defined below) shall be considered a Significant Holder irrespective of a Major Investor that is an individual, is employed by or serves as a consultant to) a competitor their ownership of the Companyshares of Registrable Securities for purposes of this Section 2.1 and Section 2.2:
(a) as soon as practicable, but in any event within not later than one hundred twenty eighty (120180) days after the end of each a fiscal year of the Company, (i) an income statement for such fiscal year, a balance sheet as of the end of such year, (ii) statements of income Company and of cash flows for such year, and a comparison between (x) the actual amounts as of and for such fiscal year and (y) the comparable amounts for the prior year and as included in the Budget (as defined in Subsection 3.1(e)) for such year, with an explanation of any material differences between such amounts and a schedule as to the sources and applications of funds for such year, and (iii) a statement of stockholders’ stockholder’s equity as of the end of such year, all and a statement of cash flows for such financial statements year, each prepared in accordance with U.S. generally accepted accounting principles consistently applied, audited and certified by independent public accountants of recognized national standing selected by the Company and approved by the Board of Directors, including the Preferred DirectorsCompany;
(b) as soon as practicable, but in any event within forty-not later than (i) forty five (45) days after the end of each a specified one of the first three (3) quarters of each a fiscal year of the CompanyCompany or (ii) upon the request of a Significant Holder, unaudited statements of income and a profit or loss statement, a statement of cash flows for such fiscal quarter, quarter and an unaudited a balance sheet and a statement of stockholders’ equity as of the end of such fiscal quarter, all prepared in accordance with GAAP (except that such financial statements may (i) be subject to normal year-end audit adjustments and (ii) not contain all notes thereto that may be required in accordance with GAAP);
(c) as soon as practicable, but in any event within forty-five (455) days after of its approval by the end Board of each of the first three (3) quarters of each fiscal year Directors of the Company, an operating plan for such fiscal year;
(d) Promptly following written request by a statement showing Significant Holder, a detailed capitalization table of the Company, including the number of shares of each class and series of capital stock and securities convertible into or exercisable for shares of capital stock (which, to the extent applicable, shall include the face amount, issue date, maturity date, interest rate, conversion discount, change of control premium and valuation cap) outstanding at the end of the period, the Common Stock issuable upon conversion or exercise of any outstanding securities convertible or exercisable for Common Stock and the exchange ratio or exercise price applicable theretoStock, and the number of shares of including issued stock options and stock options not yet issued but reserved for issuance, if any, all in sufficient detail as to permit any Major Investor for such Significant Holder to calculate its percentage equity ownership in the Company, and certified by the chief financial officer or chief executive officer of the Company as being true, complete and correct;
(d) as soon as practicable, but in any event thirty (30) days before the end of each fiscal year, a budget and business plan for the next fiscal year (collectively, the “Budget”), approved by the Board of Directors and prepared on a quarterly basis, including balance sheets, income statements, and statements of cash flow for such quarters and, promptly after prepared, any other budgets or revised budgets prepared by the Company; and
(e) such other information relating to the financial condition, business, prospects prospects, or corporate affairs of the Company as any Major Investor Significant Holder may from time to time reasonably requestrequest (including, but not limited to, full reports of independent third-party valuation firms for purposes of compliance with Section 409A of the Internal Revenue Code and summary and detailed capitalization reports); provided, however, that the Company shall not be obligated under this Subsection 3.1 Section 2.1(e) to provide information (ia) that the Company Board of Directors reasonably determines in good faith to be a trade secret or confidential classified information (unless covered by an enforceable confidentiality agreement, in form acceptable to the Company) or (iib) the disclosure of which would adversely affect the attorney-client privilege between the Company and its counsel. If, for any period, the Company has any subsidiary whose accounts are consolidated with those of the Company, then in respect of such period the financial statements delivered pursuant to the foregoing sections shall be the consolidated and consolidating financial statements of the Company and all such consolidated subsidiaries. Notwithstanding anything else ; provided, however, that in no event shall any Holder that is a Foreign Investor (as defined in the Purchase Agreement) be permitted to obtain information pursuant to this Subsection 3.1 Section 2.1 that would constitute “material nonpublic technical information” (as defined in Section 721 of the U.S. Defense Production Act of 1950, as amended, including any implementing regulations (the “DPA”)) except to the contrary, the Company may cease providing the extent such Foreign Investor already had rights to access such information set forth in this Subsection 3.1 during the period starting with the date sixty (60) days before the Company’s good-faith estimate of prior to the date of filing of a registration statement if it reasonably concludes it must do so to comply with the SEC rules applicable to such registration statement and related offering; provided that the Company’s covenants under this Subsection 3.1 shall be reinstated at such time as the Company is no longer actively employing its commercially reasonable efforts to cause such registration statement to become effectiveAgreement.
Appears in 2 contracts
Sources: Investors’ Rights Agreement (Roblox Corp), Investors’ Rights Agreement (Roblox Corp)
Delivery of Financial Statements. (a) The Company shall deliver to each Major Investor, provided that the Board of Directors has not reasonably determined that such Major Investor is (or, in the case of a Major Investor that is an individual, is employed by or serves as a consultant to) a competitor of the CompanyShareholder:
(ai) as soon as practicable, but in any event within one hundred twenty (120) 60 days after the end of each fiscal year of the Company, (iA) a balance sheet as of the end of such year, ; (iiB) statements of income and of cash flows for such year, and a comparison between (x) the actual amounts as of and for such fiscal year ; and (y) the comparable amounts for the prior year and as included in the Budget (as defined in Subsection 3.1(e)) for such year, with an explanation of any material differences between such amounts and a schedule as to the sources and applications of funds for such year, and (iiiC) a statement of stockholdersshareholders’ equity as of the end of such year, all such financial statements prepared in accordance with PFRS (for statutory purposes only) and IFRS, audited and certified by the Company’s independent public accountants selected by the Company and auditor (as approved by the Board of Directors, in accordance with Section 2.14) and including the Preferred Directorsan analysis reconciling such financial statements with GAAP;
(bii) as soon as practicable, but in any event within forty-five (45) 30 days after the end of each of the first three (3) quarters quarter of each fiscal year of the Company, unaudited statements of income and of cash flows for such fiscal quarter, and an unaudited balance sheet and a statement of stockholdersshareholders’ equity as of the end of such fiscal quarter, all prepared in accordance with GAAP IFRS and including an analysis reconciling such financial statements with GAAP;
(iii) as soon as practicable, but in any event within 30 days after the end of each month of each fiscal year of the Company, unaudited statements of income and of cash flows for such month, and an unaudited balance sheet as of the end of such month, all prepared in accordance with IFRS;
(iv) with respect to the financial statements called for in Section 3.1(a)(i) and Section 3.1(a)(ii), an instrument executed by the CFO certifying that such financial statements were prepared in accordance with IFRS, consistently applied with prior practice for earlier periods and fairly present the financial condition of the Company and its results of operation for the periods specified therein (except that such financial statements (A) may (i) be subject to normal year-end audit adjustments and (iiB) need not contain all notes thereto that may be required in accordance with GAAPIFRS);
(c) as soon as practicable, but in any event within forty-five (45) days after the end of each of the first three (3) quarters of each fiscal year of the Company, a statement showing the number of shares of each class and series of capital stock and securities convertible into or exercisable for shares of capital stock outstanding at the end of the period, the Common Stock issuable upon conversion or exercise of any outstanding securities convertible or exercisable for Common Stock and the exchange ratio or exercise price applicable thereto, and the number of shares of issued stock options and stock options not yet issued but reserved for issuance, if any, all in sufficient detail as to permit any Major Investor to calculate its percentage equity ownership in the Company, and certified by the chief financial officer or chief executive officer of the Company as being true, complete and correct;
(d) as soon as practicable, but in any event thirty (30) days before the end of each fiscal year, a budget and business plan for the next fiscal year (collectively, the “Budget”), approved by the Board of Directors and prepared on a quarterly basis, including balance sheets, income statements, and statements of cash flow for such quarters and, promptly after prepared, any other budgets or revised budgets prepared by the Company; and
(ev) such other information relating to the financial condition, business, prospects prospects, or corporate affairs of the Company as any Major Investor the KO Shareholders or CIBR may from time to time reasonably request; provided, however, that the Company shall not be obligated under this Subsection 3.1 request in order to provide information prepare its own financial statements.
(ib) that the Company reasonably determines in good faith to be a trade secret or confidential information (unless covered by an enforceable confidentiality agreement, in form acceptable to the Company) or (ii) the disclosure of which would adversely affect the attorney-client privilege between the Company and its counsel. If, for any period, the Company has any subsidiary Subsidiary whose accounts are consolidated with those of the Company, then in respect of such period the financial statements delivered pursuant to the foregoing sections shall be the consolidated and consolidating financial statements of the Company and all such consolidated subsidiaries. Notwithstanding anything else in this Subsection 3.1 Subsidiaries; provided, however, that any consolidating financial statements will be delivered as soon as practicable and will not be subject to the contrary, the Company may cease providing the information set forth deadlines specified in this Subsection 3.1 during the period starting with the date sixty (60Section 3.1(a)(i) days before the Company’s good-faith estimate of the date of filing of a registration statement if it reasonably concludes it must do so to comply with the SEC rules applicable to such registration statement and related offering; provided that the Company’s covenants under this Subsection 3.1 shall be reinstated at such time as the Company is no longer actively employing its commercially reasonable efforts to cause such registration statement to become effectiveSection 3.1(a)(ii).
Appears in 2 contracts
Sources: Shareholder Agreement, Shareholder Agreement (Coca Cola Femsa Sab De Cv)
Delivery of Financial Statements. The Company shall deliver to each Major Investor, provided that the Board of Directors has not reasonably determined that such Major Investor is (or, in the case of a Major Investor that is an individual, is employed by or serves as a consultant to) a competitor of the CompanyCompetitor:
(a) as soon as practicable, but in any event within one hundred twenty eighty (120180) days after the end of each fiscal year of the Company, Company (i) a balance sheet as of the end of such year, (ii) statements of income and of cash flows for such year, and a comparison between (x) the actual amounts as of and for such fiscal year and (y) the comparable amounts for the prior year and as included in the Budget (as defined in Subsection 3.1(e)) for such year, with an explanation of any material differences between such amounts and a schedule as to the sources and applications of funds for such year, and (iii) a statement of stockholders’ equity as of the end of such year, all such financial statements audited and certified by independent public accountants selected by the Company and approved by the Board of Directors, including the Preferred Directors;
(b) as soon as practicable, but in any event within forty-five (45) days after the end of each of the first three (3) quarters of each fiscal year of the Company, unaudited statements of income and of cash flows for such fiscal quarter, and an unaudited balance sheet and a statement of stockholders’ equity as of the end of such fiscal quarter, all prepared in accordance with GAAP (except that such financial statements may (i) be subject to normal year-end audit adjustments adjustments; and (ii) not contain all notes thereto that may be required in accordance with GAAP);
(c) as soon as practicable, but in any event within forty-five (45) days after the end of each of the first three (3) quarters of each fiscal year of the Company, a statement showing the number of shares of each class and series of capital stock and securities convertible into or exercisable for shares of capital stock outstanding at the end of the period, the Common Stock issuable upon conversion or exercise of any outstanding securities convertible or exercisable for Common Stock and the exchange ratio or exercise price applicable thereto, and the number of shares of issued stock options and stock options not yet issued but reserved for issuance, if any, all in sufficient detail as to permit any the Major Investor Investors to calculate its their respective percentage equity ownership in the Company, and certified by the chief financial officer or chief executive officer of the Company as being true, complete complete, and correct;
(d) as soon as practicable, but in any event thirty (30) days practicable before the end of each fiscal year, a budget and business plan for the next fiscal year (collectively, the “Budget”), approved by the Board of Directors and prepared on a quarterly monthly basis, including balance sheets, income statements, and statements of cash flow for such quarters months and, promptly after prepared, any other budgets or revised budgets prepared by the Company; and
(e) such other information relating to the financial condition, business, prospects prospects, or corporate affairs of the Company as any Major Investor may from time to time reasonably request; provided, however, that the Company shall not be obligated under this Subsection 3.1 to provide information (i) that the Company reasonably determines in good faith to be a trade secret or confidential information (unless covered by an enforceable confidentiality agreement, in a form acceptable to the Company) ); or (ii) the disclosure of which would adversely affect the attorney-client privilege between the Company and its counsel. If, for any period, the Company has any subsidiary whose accounts are consolidated with those of the Company, then in respect of such period the financial statements delivered pursuant to the foregoing sections shall be the consolidated and consolidating financial statements of the Company and all such consolidated subsidiaries. Notwithstanding anything else in this Subsection 3.1 to the contrary, the Company may cease providing the information set forth in this Subsection 3.1 during the period starting with the date sixty (60) days before the Company’s good-faith estimate of the date of filing of a registration statement if it reasonably concludes it must do so to comply with the SEC rules applicable to such registration statement and related offering; provided that the Company’s covenants under this Subsection 3.1 shall be reinstated at such time as the Company is no longer actively employing its commercially reasonable efforts to cause such registration statement to become effective.
Appears in 2 contracts
Sources: Investors’ Rights Agreement, Investors’ Rights Agreement (Prevail Therapeutics Inc.)
Delivery of Financial Statements. The Company shall deliver to each Major Investor, provided that the Board of Directors has not reasonably determined that such Major Investor is (or, in the case of a Major Investor and to an entity that is an individualInvestor holding at least 13,699,795 shares of Preferred Stock (as adjusted for any stock split, is employed by stock dividend, combination, or serves as a consultant to) a competitor of other recapitalization or reclassification effected after the Company:date hereof):
(a) as soon as practicable, but in any event within one hundred twenty (120) days after the end of each fiscal year of the Company, (i) a balance sheet as of the end of such year, (ii) statements of income and of cash flows for such year, and a comparison between (x) the actual amounts as of and for such fiscal year and (y) the comparable amounts for the prior year and as included in the Budget (as defined in Subsection Section 3.1(e)) for such year, with an explanation of any material differences between such amounts and a schedule as to the sources and applications of funds for such year, and (iii) a statement of stockholders’ equity as of the end of such year, all such financial statements audited and certified by independent public accountants of nationally recognized standing selected by the Company and approved by the Board of Directors, including the Preferred DirectorsCompany;
(b) as soon as practicable, but in any event within forty-five (45) days after the end of each of the first three (3) quarters of each fiscal year of the Company, unaudited statements of income and of cash flows for such fiscal quarter, and an unaudited balance sheet and a statement of stockholders’ equity as of the end of such fiscal quarter, all prepared in accordance with GAAP (except that such financial statements may (i) be subject to normal year-end audit adjustments and (ii) not contain all notes thereto that may be required in accordance with GAAP);
(c) as soon as practicable, but in any event within forty-five (45) days after the end of each of the first three (3) quarters of each fiscal year of the Company, a statement showing the number of shares of each class and series of capital stock and securities convertible into or exercisable for shares of capital stock outstanding at the end of the period, the Common Stock issuable upon conversion or exercise of any outstanding securities convertible or exercisable for Common Stock and the exchange ratio or exercise price applicable thereto, and the number of shares of issued stock options and stock options not yet issued but reserved for issuance, if any, all in sufficient detail as to permit any the Major Investor Investors to calculate its their respective percentage equity ownership in the Company, and certified by the chief financial officer or chief executive officer of the Company as being true, complete complete, and correct;
(d) as soon as practicable, but in any event within thirty (30) days of the end of each month, an unaudited income statement and statement of cash flows for such month, and an unaudited balance sheet and statement of stockholders’ equity as of the end of such month, all prepared in accordance with GAAP (except that such financial statements may (i) be subject to normal year-end audit adjustments and (ii) not contain all notes thereto that may be required in accordance with GAAP);
(e) as soon as practicable, but in any event thirty (30) days before the end of each fiscal year, a budget and business plan for the next fiscal year (collectively, the “Budget”), approved by the Board of Directors and prepared on a quarterly monthly basis, including balance sheets, income statements, and statements of cash flow for such quarters months and, promptly after prepared, any other budgets or revised budgets prepared by the Company;
(f) with respect to the financial statements called for in Section 3.1(a), Section 3.1(b) and Section 3.1(d), an instrument executed by the chief financial officer and chief executive officer of the Company certifying that such financial statements were prepared in accordance with GAAP consistently applied with prior practice for earlier periods (except as otherwise set forth in Section 3.1(b) and Section 3.1(d)) and fairly present the financial condition of the Company and its results of operation for the periods specified therein; and
(eg) such other information relating to the financial condition, business, prospects prospects, or corporate affairs of the Company as any Major Investor may from time to time reasonably requestrequest in writing; provided, however, that the Company shall not be obligated under this Subsection 3.1 Section 3.1(g) to provide information (i) that the Company reasonably determines in good faith to be a trade secret or confidential information (unless covered by an enforceable confidentiality agreement, in form acceptable to the Company, executed and delivered by such Major Investor or other Investor) or (ii) the disclosure of which would adversely affect the attorney-client privilege between the Company and its counsel. If, for any period, the Company has any subsidiary whose accounts are consolidated with those of the Company, then in respect of such period the financial statements delivered pursuant to the foregoing sections shall be the consolidated and consolidating financial statements of the Company and all such consolidated subsidiaries. Notwithstanding anything else in this Subsection Section 3.1 to the contrary, the Company may cease providing the information set forth in this Subsection Section 3.1 during the period starting with the date sixty thirty (6030) days before the Company’s good-faith estimate of the date of filing of a registration statement if and so long as it reasonably concludes it must do so to comply with the SEC rules applicable to such registration statement and related offering; provided that the Company’s covenants under this Subsection Section 3.1 shall be reinstated at such time as the Company is no longer actively employing its commercially reasonable efforts to cause such registration statement to become effective.
Appears in 2 contracts
Sources: Investors’ Rights Agreement (CytomX Therapeutics, Inc.), Investors’ Rights Agreement (CytomX Therapeutics, Inc.)
Delivery of Financial Statements. The Company shall deliver to each the Major Investor, provided that the Board of Directors has not reasonably determined that such Major Investor is (or, in the case of a Major Investor that is an individual, is employed by or serves as a consultant to) a competitor of the CompanyInvestors:
(a) as soon as practicable, but in any event within one hundred twenty (120) days after the end of each fiscal year of the Company, Company (i) a balance sheet as of the end of such year, (ii) statements of income and of cash flows for such year, and a comparison between (x) the actual amounts as of and for such fiscal year and (y) the comparable amounts for the prior year and as included in the Budget (as defined in Subsection 3.1(e)) for such year, with an explanation of any material differences between such amounts and a schedule as to the sources and applications of funds for such year, and (iii) a statement of stockholders’ equity as of the end of such year, all such financial statements audited and certified by independent public accountants of nationally recognized standing selected by the Company and approved by the Board of Directors, including the Preferred DirectorsCompany;
(b) as soon as practicable, but in any event within forty-five (45) days after the end of each of the first three (3) quarters of each fiscal year of the Company, unaudited statements of income and of cash flows for such fiscal quarter, and an unaudited balance sheet and a statement of stockholders’ equity as of the end of such fiscal quarter, all prepared in accordance with GAAP (except that such financial statements may (i) be subject to normal year-end audit adjustments and (ii) not contain all notes thereto that may be required in accordance with GAAPabsent of notes);
(c) as soon as practicable, but in any event within forty-five (45) days after the end of each of the first three (3) quarters of each fiscal year quarter of the Company, a statement showing the number of shares of each class and series of capital stock and securities convertible into or exercisable for shares of capital stock outstanding at the end of the period, the Common Stock issuable upon conversion or exercise of any outstanding securities convertible or exercisable for Common Stock and the exchange ratio or exercise price applicable thereto, and the number of shares of issued stock options and stock options not yet issued but reserved for issuance, if any, all in sufficient detail as to permit any the Major Investor Investors to calculate its their respective percentage equity ownership in the Company, and certified by the chief financial officer or chief executive officer of the Company as being true, complete and correct;
(d) as soon as practicable, but in any event within thirty (30) days before of the end of each month, an unaudited income statement and statement of cash flows for such month, and an unaudited balance sheet and statement of stockholders’ equity as of the end of such month, all prepared in accordance with GAAP (except that such financial statements may (i) be subject to normal year-end audit adjustments and (ii) be absent of notes);
(e) promptly (but in any event no more than forty-five (45) days) following the end of each fiscal year, a budget and business plan for the next fiscal year (collectively, the “Budget”), approved by the Board of Directors and prepared on a quarterly monthly basis, including balance sheetsrevenue, income statementsexpenses, and statements of cash flow position for such quarters months and, promptly after prepared, any other budgets or revised budgets prepared by the Company; and;
(ef) such other information relating to the financial condition, business, prospects prospects, or corporate affairs of the Company as any the Major Investor Investors may from time to time reasonably requestrequest or as may be provided to H.I.G. Capital, LLC and its affiliates (collectively, “H.I.G.”) that is not otherwise required to be provided to the Major Investors pursuant to this Agreement; provided, however, that the Company shall not be obligated under this Subsection 3.1 to provide information (i) that the Company reasonably determines in good faith to be a trade secret or confidential information (unless covered by an enforceable confidentiality agreement, in a form acceptable to the Company) ); or (ii) the disclosure of which would adversely affect the attorney-client privilege between the Company and its counsel; provided, however, that the Company shall not be entitled to withhold information from IVP or CPPIB on the basis of (i) or (ii) above to the extent any other Major Investor or H.I.G. is provided with such information. If, for any period, the Company has any subsidiary whose accounts are consolidated with those of the Company, then in respect of such period the financial statements delivered pursuant to the foregoing sections shall be the consolidated and consolidating financial statements of the Company and all such consolidated subsidiaries. For any period where the Parent and Company’s financial statements are consolidated, the Parent’s consolidated financial statements may be delivered pursuant to the foregoing sections. Notwithstanding anything else in this Subsection 3.1 to the contrary, the Company may cease providing the information set forth in this Subsection 3.1 during the period starting with the date sixty thirty (6030) days before the Company’s good-faith estimate of the date of filing of a registration statement if it reasonably concludes it must do so to comply with the SEC rules applicable to such registration statement and related offering; provided that the Company’s covenants under this Subsection 3.1 shall be reinstated at such time as the Company is no longer actively employing its commercially reasonable efforts to cause such registration statement to become effective.
Appears in 2 contracts
Sources: Investors’ Rights Agreement (Lulu's Fashion Lounge Holdings, Inc.), Investors’ Rights Agreement (Lulu's Fashion Lounge Holdings, Inc.)
Delivery of Financial Statements. The Company shall deliver to each Major Investor, provided that the Board of Directors has not reasonably determined that such Major Investor is (or, in the case of a Major Investor that is an individual, is employed by or serves as a consultant to) a competitor of the Company:
(a) as soon as practicable, but in any event within one hundred twenty ninety (12090) days after the end of each fiscal year of the Company, Company (i) a balance sheet as of the end of such year, (ii) statements of income and of cash flows for such year, and a comparison between (x) the actual amounts as of and for such fiscal year and (y) the comparable amounts for the prior year and as included in the Budget (as defined in Subsection 3.1(eSection 3.1(d)) for such year, with an explanation of any material differences between such amounts and a schedule as to the sources and applications of funds for such year, and (iii) a statement of stockholders’ equity as of the end of such year, all such financial statements audited and certified by independent public accountants selected by the Company and approved by the Board of Directors, including the Preferred Directors;
(b) as soon as practicable, but in any event within forty-five (45) days after the end of each of the first three (3) quarters of each fiscal year of the Company, unaudited statements of income and of cash flows for such fiscal quarter, and an unaudited balance sheet and a statement of stockholders’ equity as of the end of such fiscal quarter, all prepared in accordance with GAAP (except that such financial statements may (i) be subject to normal year-end audit adjustments adjustments; and (ii) not contain all notes thereto that may be required in accordance with GAAP);
(c) as soon as practicable, but in any event within forty-five (45) days after the end of each of the first three (3) quarters of each fiscal year of the Company, a statement showing the number of shares of each class and series of capital stock and securities convertible into or exercisable for shares of capital stock outstanding at the end of the period, the Common Stock issuable upon conversion or exercise of any outstanding securities convertible or exercisable for Common Stock and the exchange ratio or exercise price applicable thereto, and the number of shares of issued stock options and stock options not yet issued but reserved for issuance, if any, all in sufficient detail as to permit any the Major Investor Investors to calculate its their respective percentage equity ownership in the Company, and certified by the chief financial officer or chief executive officer of the Company as being true, complete complete, and correct;
(d) as soon as practicable, but in any event thirty (30) days before the end of each fiscal year, a budget and business plan for the next fiscal year (collectively, the “Budget”), approved by the Board of Directors and prepared on a quarterly monthly basis, including balance sheets, income statements, and statements of cash flow for such quarters months and, promptly after prepared, any other budgets or revised budgets prepared by the Company; and
(e) such other information relating to the financial condition, business, prospects prospects, or corporate affairs of the Company as any Major Investor may from time to time reasonably request; provided, however, that the Company shall not be obligated under this Subsection Section 3.1 to provide information (i) that the Company reasonably determines in good faith to be a trade secret or confidential information (unless covered by an enforceable confidentiality agreement, in a form acceptable to the Company) ); or (ii) the disclosure of which would adversely affect the attorney-client privilege between the Company and its counsel. If, for any period, the Company has any subsidiary whose accounts are consolidated with those of the Company, then in respect of such period the financial statements delivered pursuant to the foregoing sections shall be the consolidated and consolidating financial statements of the Company and all such consolidated subsidiaries. Notwithstanding anything else in this Subsection Section 3.1 to the contrary, the Company may cease providing the information set forth in this Subsection Section 3.1 during the period starting with the date sixty thirty (6030) days before the Company’s good-faith estimate of the date of filing of a registration statement if it reasonably concludes it must do so to comply with the SEC rules applicable to such registration statement and related offering; provided that the Company’s covenants under this Subsection Section 3.1 shall be reinstated at such time as the Company is no longer actively employing its commercially reasonable efforts to cause such registration statement to become effective.
Appears in 2 contracts
Sources: Investors’ Rights Agreement (Lantern Pharma Inc.), Investors’ Rights Agreement (Lantern Pharma Inc.)
Delivery of Financial Statements. The Company shall deliver to each Major Investor, provided that the Board of Directors has not reasonably determined that such Major Investor is (or, in the case of a Major Investor that is an individual, is employed by or serves as a consultant to) a competitor of the Company:
(a) as soon as practicable, but in any event within one hundred twenty eighty (120180) days after the end of each fiscal year of the Company, (i) a balance sheet as of the end of such year, (ii) statements of income and of cash flows for such year, and a comparison between (x) the actual amounts as of and for such fiscal year and (y) the comparable amounts for the prior year and as included in the Budget (as defined in Subsection 3.1(e)) for such year, with an explanation of any material differences between such amounts and a schedule as to the sources and applications of funds for such year, and (iii) a statement of stockholders’ equity as of the end of such year, all such financial statements audited and certified by independent public accountants selected by the Company and approved by the Board of Directors, including the Lead Preferred DirectorsDirector;
(b) as soon as practicable, but in any event within forty-five (45) days after the end of each of the first three (3) quarters of each fiscal year of the Company, unaudited statements of income and of cash flows for such fiscal quarter, and an unaudited balance sheet and a statement of stockholders’ equity as of the end of such fiscal quarter, all prepared in accordance with GAAP (except that such financial statements may (i) be subject to normal year-end audit adjustments and (ii) not contain all notes thereto that may be required in accordance with GAAP);
(c) as soon as practicable, but in any event within forty-five (45) days after the end of each of the first three (3) quarters of each fiscal year of the Company, a statement showing the number of shares of each class and series of capital stock and securities convertible into or exercisable for shares of capital stock outstanding at the end of the period, the Common Stock issuable upon conversion or exercise of any outstanding securities convertible or exercisable for Common Stock and the exchange ratio or exercise price applicable thereto, and the number of shares of issued stock options and stock options not yet issued but reserved for issuance, if any, all in sufficient detail as to permit any Major Investor to calculate its percentage equity ownership in the Company, and certified by the chief financial officer or chief executive officer of the Company as being true, complete and correct;
(d) as soon as practicable, but in any event within thirty (30) days before of the end of each month, an unaudited income statement and statement of cash flows for such month, and an unaudited balance sheet and statement of stockholders’ equity as of the end of such month, all prepared in accordance with GAAP (except that such financial statements may (i) be subject to normal year-end audit adjustments and (ii) not contain all notes thereto that may be required in accordance with GAAP);
(e) as soon as practicable, but in any event within thirty (30) days of the beginning of each fiscal year, a budget and business plan for the next such fiscal year (collectively, the “Budget”), approved by the Board of Directors and prepared on a quarterly basis, including balance sheets, income statements, and statements of cash flow for such quarters and, promptly after prepared, any other budgets or revised budgets prepared by the Company; and
(ef) such other information relating to the financial condition, business, prospects or corporate affairs of the Company as any Major Investor may from time to time reasonably request; provided, however, that the Company shall not be obligated under this Subsection 3.1 3.1(f) to provide information (i) that the Company reasonably determines in good faith to be a trade secret or confidential information (unless covered by an enforceable confidentiality agreement, in form acceptable to the Company) or (ii) the disclosure of which would adversely affect the attorney-client privilege between the Company and its counsel. If, for any period, the Company has any subsidiary whose accounts are consolidated with those of the Company, then in respect of such period the financial statements delivered pursuant to the foregoing sections shall be the consolidated and consolidating financial statements of the Company and all such consolidated subsidiaries. Notwithstanding anything else in this Subsection 3.1 to the contrary, the Company may cease providing the information set forth in this Subsection 3.1 during the period starting with the date sixty (60) days before the Company’s good-faith estimate of the date of filing of a registration statement if it reasonably concludes it must do so to comply with the SEC rules applicable to such registration statement and related offering; provided that the Company’s covenants under this Subsection 3.1 shall be reinstated at such time as the Company is no longer actively employing its commercially reasonable efforts to cause such registration statement to become effective.
Appears in 2 contracts
Sources: Investors’ Rights Agreement, Investors’ Rights Agreement (Kaleido Biosciences, Inc.)
Delivery of Financial Statements. The Company shall deliver to each Major Investor, provided that the Board of Directors has not reasonably determined that such Major Investor is (or, in the case of a Major Investor that is an individual, is employed by or serves as a consultant to) a competitor of the Company:
(a) as soon as practicable, but in any event within one hundred twenty (120) days after the end of each fiscal year of the CompanyFiscal Year (as defined below), (i) a balance sheet as of the end of such year, (ii) statements of income and of cash flows for such year, and a comparison between (x) the actual amounts as of and for such fiscal year and (y) the comparable amounts for the prior year and as included in the Budget (as defined in Subsection 3.1(e)) for such year, with an explanation of any material differences between such amounts and a schedule as to the sources and applications of funds for such year, and (iii) a statement of stockholders’ equity as of the end of such year, all such financial statements audited and certified by independent public accountants accounts of nationally recognized standing selected by the Company and approved by the Board of Directors, including the Preferred DirectorsCompany;
(b) as soon as practicable, but in any event within forty-forty five (45) days after the end of each of the first three Fiscal Quarters (3as defined below) quarters of each fiscal year of the CompanyFiscal Year, unaudited statements of income and of cash flows for such fiscal quarter, and an unaudited balance sheet and a statement of stockholders’ equity as of the end of such fiscal quarter, all prepared in accordance with GAAP (except that such financial statements may (i) be subject to normal year-year- end audit adjustments adjustments; and (ii) not contain all notes thereto that may be required in accordance with GAAP);
(c) as soon as practicable, but in any event within forty-five (45) days after the end of each of the first three (3) quarters Fiscal Quarters of each fiscal year of the CompanyFiscal Year, a statement showing the number of shares of each class and series of capital stock and securities convertible into or exercisable for shares of capital stock outstanding at the end of the period, the Common Stock issuable upon conversion or exercise of any outstanding securities convertible or exercisable for Common Stock and the exchange ratio or exercise price applicable thereto, and the number of shares of issued stock options and stock options not yet issued but reserved for issuance, if any, all in sufficient detail as to permit any the Major Investor Investors to calculate its their respective percentage equity ownership in the Company, and certified by the chief financial officer or chief executive officer of the Company as being true, complete complete, and correct;
(d) as soon as practicable, but in any event within thirty (30) days of the end of each month, an unaudited income statement and statement of cash flows for such month, and an unaudited balance sheet and statement of stockholders’ equity as of the end of such month, all prepared in accordance with GAAP (except that such financial statements may be subject to normal year-end audit adjustments and (ii) not contain all notes thereto that may be required in accordance with GAAP);
(e) as soon as practicable, but in any event thirty (30) days before the end of each fiscal yearFiscal Year, a budget and business plan for the next fiscal year Fiscal Year (collectively, the “Budget”), approved by the Board of Directors and prepared on a quarterly monthly basis, including balance sheets, income statements, and statements of cash flow for such quarters months and, promptly after prepared, any other budgets or revised budgets prepared by the Company;
(f) with respect to the financial statements called for in Subsection 3.1(a), Subsection 3.1(b) and Subsection 3.1(d), an instrument executed by the chief financial officer and chief executive officer of the Company certifying that such financial statements were prepared in accordance with GAAP consistently applied with prior practice for earlier periods (except as otherwise set forth in Subsection 3.1(b) and Subsection 3.1(d)) and fairly present the financial condition of the Company and its results of operation for the periods specified therein; and
(eg) such other information relating to the financial condition, business, prospects prospects, or corporate affairs of the Company determined by the Board of Directors or as any Major Investor may from time to time reasonably request; provided, however, that the Company shall not be obligated under this Subsection 3.1 to provide information (i) that the Company reasonably determines in good faith to be a trade secret or confidential information (unless covered by an enforceable confidentiality agreement, in a form acceptable to the Company) ); or (ii) the disclosure of which would adversely affect the attorney-client privilege between the Company and its counsel. If, for any period, the Company has any subsidiary whose accounts are consolidated with those of the Company, then in respect of such period the financial statements delivered pursuant to the foregoing sections shall be the consolidated and consolidating financial statements of the Company and all such consolidated subsidiaries. For purposes of this Section 3, unless otherwise determined by the Board of Directors, the Company’s fiscal year shall end on December 31st (the “Fiscal Year”), with quarters ending on March 31st, June 30th, September 30th, and December 31st (each a “Fiscal Quarter”). Notwithstanding anything else in this Subsection 3.1 to the contrary, the Company may cease providing the information set forth in this Subsection 3.1 during the period starting with the date sixty thirty (6030) days before the Company’s good-faith estimate of the date of filing of a registration statement if it reasonably concludes it must do so to comply with the SEC rules applicable to such registration statement and related offering; provided that the Company’s covenants under this Subsection 3.1 shall be reinstated at such time as the Company is no longer actively employing its commercially reasonable efforts to cause such registration statement to become effective.
Appears in 2 contracts
Sources: Investors’ Rights Agreement (Grail, Inc.), Investors’ Rights Agreement (Grail, Inc.)
Delivery of Financial Statements. (a) The Company shall deliver to each Major Investor, provided that the Board of Directors has not reasonably determined that such Major Investor is (or, in the case of a Major Investor that is an individual, is employed by or serves as a consultant to) a competitor of the CompanyPurchaser:
(ai) as soon as practicable, but in any event within one hundred twenty ninety (12090) days after the end of each fiscal year of the Company, (i) a balance sheet as of the end of such year, (ii) statements of income and of cash flows for such year, and a comparison between (x) the actual amounts as of and for such fiscal year and (y) the comparable amounts for the prior year and as included in the Budget (as defined in Subsection 3.1(e)) for such year, with an explanation of any material differences between such amounts and a schedule as to the sources and applications of funds for such year, and (iii) a statement of stockholders’ equity as of the end of such year, all such financial statements audited and certified by independent public accountants selected by the Company, and the chief financial officer and chief executive officer of the Company shall certify in writing that such financial statements were prepared in accordance with GAAP consistently applied with prior practice for earlier periods and fairly present the financial condition of the Company and approved by its results of operation for the Board of Directors, including the Preferred Directorsperiods specified therein;
(bii) as soon as practicable, but in any event within forty-forty five (45) days after the end of each of the first three (3) quarters of each fiscal year of the Company, unaudited statements of income and of cash flows for such fiscal quarter, and an unaudited balance sheet and a statement of stockholders’ equity as of the end of such fiscal quarter, all prepared in accordance with GAAP (except that such financial statements may (i) be subject to normal year-end audit adjustments and (ii) not contain all notes thereto that may be required in accordance with GAAP), and the chief financial officer and chief executive officer of the Company shall certify in writing that such financial statements were prepared in accordance with GAAP consistently applied with prior practice for earlier periods (except as otherwise set forth in this Section 4.12(a)(ii)) and fairly present the financial condition of the Company and its results of operation for the periods specified therein;
(ciii) as soon as practicable, but in any event within forty-five (45) days after practicable following the end of each request of the first three (3) quarters of each fiscal year of the CompanyPurchaser, a statement showing the number of shares of each class and series of capital stock and securities convertible into or exercisable for shares of capital stock outstanding at the end of the period, the Common Stock issuable upon conversion or exercise of any outstanding securities convertible or exercisable for Common Stock and the exchange ratio or exercise price applicable thereto, and the number of shares of issued stock options and stock options not yet issued but reserved for issuance, if any, all in sufficient detail as to permit any Major Investor the Purchaser to calculate its percentage equity ownership in the Company, and certified by the chief financial officer or chief executive officer of the Company as being true, complete complete, and correct;
(d) as soon as practicable, but in any event thirty (30) days before the end of each fiscal year, a budget and business plan for the next fiscal year (collectively, the “Budget”), approved by the Board of Directors and prepared on a quarterly basis, including balance sheets, income statements, and statements of cash flow for such quarters and, promptly after prepared, any other budgets or revised budgets prepared by the Company; and
(eiv) such other information relating to the financial condition, business, prospects prospects, or corporate affairs of the Company as any Major Investor the Purchaser may from time to time reasonably request; provided, however, that the Company shall not be obligated under this Subsection 3.1 Section 4.12(a)(iv) to provide information (i) that the Company reasonably determines in good faith to be a trade secret or confidential information (unless covered by an enforceable confidentiality agreement, in form acceptable to the Company) or (ii) the disclosure of which would adversely affect the attorney-client privilege between the Company and its counsel. If, for any period, the Company has any subsidiary whose accounts are consolidated with those of the Company, then in respect of such period the financial statements delivered pursuant to the foregoing sections shall be the consolidated and consolidating financial statements of the Company and all such consolidated subsidiaries. Notwithstanding anything else in this Subsection 3.1 to the contrary, the Company may cease providing the information set forth in this Subsection 3.1 during the period starting with the date sixty (60) days before the Company’s good-faith estimate of the date of filing of a registration statement if it reasonably concludes it must do so to comply with the SEC rules applicable to such registration statement and related offering; provided that the Company’s covenants under this Subsection 3.1 shall be reinstated at such time as the Company is no longer actively employing its commercially reasonable efforts to cause such registration statement to become effective.
Appears in 2 contracts
Sources: Securities Purchase Agreement (Origin Bancorp, Inc.), Securities Purchase Agreement (Origin Bancorp, Inc.)
Delivery of Financial Statements. The Company shall deliver to each Major the Investor, provided that the Board of Directors has not reasonably determined that such Major Investor is (or, in the case of a Major Investor that is an individual, is employed by or serves as a consultant to) a competitor of the Company:
(a) as soon as practicable, but in any event within one hundred twenty ninety (12090) days after the end of each fiscal year of the Company, (i) a balance sheet as of the end of such year, (ii) statements of income and of cash flows for such year, and a comparison between (x) the actual amounts as of and for such fiscal year and (y) the comparable amounts for the prior year and as included in the Budget (as defined in Subsection 3.1(e)) for such year, with an explanation of any material differences between such amounts and a schedule as to the sources and applications of funds for such year, and (iii) a statement of stockholders’ equity as of the end of such year, all such financial statements audited and certified by independent public accountants of regionally recognized standing selected by the Company and approved by the Board of Directors, including the Preferred DirectorsCompany;
(b) as soon as practicable, but in any event within forty-five (45) days after the end of each of the first three (3) quarters of each fiscal year of the Company, unaudited statements of income and of cash flows for such fiscal quarter, and an unaudited balance sheet and a statement of stockholders’ equity as of the end of such fiscal quarter, all prepared in accordance with GAAP (except that such financial statements may (i) be subject to normal year-year end audit adjustments and (ii) not contain all notes thereto that may be required in accordance with GAAP);
(c) as soon as practicable, but in any event within forty-five (45) days after the end of each of the first three (3) quarters of each fiscal year of the Company, a statement showing the number of shares of each class and series of capital stock and securities convertible into or exercisable for shares of capital stock outstanding at the end of the period, the Common Stock issuable upon conversion or exercise of any outstanding securities convertible or exercisable for Common Stock and the exchange ratio or exercise price applicable thereto, and the number of shares of issued stock options and stock options not yet issued but reserved for issuance, if any, all in sufficient detail as to permit any Major the Investor to calculate its percentage equity ownership in the Company, and certified by the chief financial officer or chief executive officer of the Company as being true, complete complete, and correct;
(d) upon each request by Investor (each such request shall be deemed a request for a single month’s materials to be provided pursuant to this Section 3.1(d)) as soon as practicable, but in any event within thirty (30) days of the end of each month, an unaudited income statement and statement of cash flows for such month, and an unaudited balance sheet as of the end of such month, all prepared in accordance with GAAP (except that such financial statements may (i) be subject to normal year-end audit adjustments and (ii) not contain all notes thereto that may be required in accordance with GAAP);
(e) as soon as practicable, but in any event thirty (30) days before the end of each fiscal year, a budget and business plan for the next fiscal year (collectively, the “Budget”), approved by the Board of Directors Directors, and prepared on a quarterly monthly basis, including balance sheets, income statements, and statements of cash flow for such quarters months and, promptly after prepared, any other budgets or revised budgets prepared by the Company; and
(ef) such other information relating to the financial condition, business, prospects prospects, or corporate affairs of the Company as any Major the Investor may from time to time reasonably request; provided, however, that the Company shall not be obligated under this Subsection 3.1 to provide information (i) that the Company reasonably determines in good faith to be a trade secret or confidential information (unless covered by an enforceable confidentiality agreement, in form acceptable to the Company) or (ii) the disclosure of which would adversely affect the attorney-attorney client privilege between the Company and its counsel. If, for any period, the Company has any subsidiary whose accounts are consolidated with those of the Company, then in respect of such period the financial statements delivered pursuant to the foregoing sections shall be the consolidated and consolidating financial statements of the Company and all such consolidated subsidiaries. Notwithstanding anything else in this Subsection 3.1 to the contrary, the Company may cease providing the information set forth in this Subsection 3.1 during the period starting with the date sixty thirty (6030) days before the Company’s good-faith estimate of the date of filing of a registration statement if it reasonably concludes it must do so to comply with the SEC rules applicable to such registration statement and related offering; provided that the Company’s covenants under this Subsection 3.1 shall be reinstated at such time as the Company is no longer actively employing its commercially reasonable efforts to cause such registration statement to become effective.
Appears in 2 contracts
Sources: Safe (Backblaze, Inc.), Safe (Backblaze, Inc.)
Delivery of Financial Statements. The Company shall deliver to each Major InvestorVC Investor who holds at least 1,100,000 shares of Preferred Stock (appropriately adjusted for any stock split, dividend, combination or other recapitalization effected after the date hereof), provided that the Board of Directors has not reasonably determined that such Major VC Investor is (or, in the case of a Major Investor that is an individual, is employed by or serves as a consultant to) a competitor of the Company:
(a) as soon as practicable, but in any event within one hundred twenty (120) days after the end of each fiscal year of the Company, (i) a balance sheet and income statement as of the end last day of such year, (ii) statements of income and ; a statement of cash flows for such year, year and a comparison between (x) the actual amounts as of and figures for such fiscal year and (y) year, the comparable amounts figures for the prior year and as the comparable figures included in the Budget (as defined in Subsection 3.1(e)below) for such year, with an explanation of any material differences between such amounts them and a schedule as to the sources and applications of funds for such year, and (iii) a statement of stockholders’ equity as of the end of such year-end financial reports to be in reasonable detail, all such financial statements prepared in accordance with GAAP, and audited and certified by independent public accountants selected by the Company and approved by the Board of Directors, including the Preferred DirectorsBoard;
(b) as soon as practicable, but in any event within forty-five (45) days after the end of each of the first three (3) quarters of each fiscal year of the Company, an unaudited statements income statement, schedule as to the sources and application of income and of cash flows funds for such fiscal quarter, and an unaudited balance sheet and a statement of stockholders’ stockholder’s equity as of the end of such fiscal quarter, all prepared in accordance with GAAP (except that such financial statements may (i) be subject to normal year-end audit adjustments and (ii) not contain all notes thereto that may be required in accordance with GAAP);
(c) as soon as practicable, but in any event within forty-five (45) days after the end of each of the first three (3) quarters of each fiscal year of the Company, a statement showing the number of shares of each class and series of capital stock and securities convertible into or exercisable for shares of capital stock outstanding at the end of the period, the Common Stock number of common shares issuable upon conversion or exercise of any outstanding securities convertible or exercisable for Common Stock common shares and the exchange ratio or exercise price applicable thereto, thereto and the number of shares of issued stock options and stock options not yet issued but reserved for issuance, if any, all in sufficient detail as to permit any Major Investor the VC Investors to calculate its percentage equity ownership in the Company, Company and certified by the chief financial officer President, Chief Financial Officer or chief executive officer Chief Executive Officer of the Company as being true, complete and correct;
(d) as soon as practicable, but in any event within thirty (30) days before of the end of each month, an unaudited income statement and an unaudited profit or loss statement;
(e) as soon as practicable, but in any event within thirty (30) days prior to the end of each fiscal year, a budget and business plan for the next fiscal year (collectively, the “Budget”), approved by the Board of Directors and prepared on a quarterly monthly basis, including balance sheets, income statements, sheets and sources and applications of funds statements of cash flow for such quarters months and, promptly after as soon as prepared, any other budgets or revised budgets prepared by the Company; and;
(ef) with respect to the financial statements called for in subsections (a), (b) and (d) of this Section 3.1, an instrument executed by the President, Chief Executive Officer or Chief Financial Officer of the Company certifying that such financials were prepared in accordance with GAAP consistently applied with prior practice for earlier periods (with the exception of footnotes that may be required by GAAP) and fairly present the financial condition of the Company and its results of operation for the periods specified therein, subject to year-end audit adjustment;
(g) such other information relating to the financial condition, business, prospects or corporate affairs of the Company as any Major VC Investor or any assignee of such VC Investor may from time to time reasonably request; , provided, however, that the Company shall not be obligated under this Subsection subsection (g) or any other subsection of Section 3.1 to provide information (i) that provide information which the Company reasonably determines deems in good faith to be a trade secret or similar confidential information (unless covered by an enforceable confidentiality agreement, in form acceptable to the Company) or (ii) the disclosure of which would adversely affect the attorney-client privilege between the Company and its counsel. If, ;
(h) if for any period, period the Company has shall have any subsidiary Subsidiary whose accounts are consolidated with those of the Company, then in respect of such period the financial statements delivered pursuant to the foregoing sections shall be the consolidated and consolidating financial statements of the Company and all such consolidated subsidiaries. The Company shall distribute the financial statements described in Sections 3.1(a) and 3.1(b) above to Maven for so long as Maven shall continue to hold at least 2% of the aggregate outstanding shares of Preferred Stock of the Company, including, without limitation, all subsequent series of the Company’s preferred stock issued from time to time; provided, however, that Maven’s rights under this Section 3.1 shall terminate upon a good faith determination by the Board that Maven is a competitor of the Company. For so long as a Strategic Investor shall continue to hold at least 250,000 shares of Preferred Stock of the Company, (i) the Company shall distribute the financial statements described in Sections 3.1(a) and 3.1(b) above and the capitalization table information described in Section 3.1(c) above to such Strategic Investor; and (ii) on a bi-annual basis, management of the Company shall meet with each Strategic Investor to present the Company’s operating metrics, strategic events and technological developments. For so long as a VC Investor shall continue to hold at least 400,000 of the aggregate outstanding shares of Preferred Stock of the Company, including, without limitation, all subsequent series of the Company’s preferred stock issued from time to time, (i) the Company shall distribute the financial statements described in Sections 3.1(a) and 3.1(b) above and the capitalization table information described in Section 3.1(c) above to such VC Investor; and (ii) on a bi-annual basis, management of the Company shall meet with each VC Investor to present the Company’s operating metrics, strategic events and technological developments. Notwithstanding anything else in this Subsection Section 3.1 to the contrary, the Company may cease providing the information set forth in this Subsection Section 3.1 during the period starting with the date sixty (60) days before prior to the Company’s good-good faith estimate of the date of filing of, and ending on a date one hundred eighty (180) days after the effective date of a the registration statement if it reasonably concludes it must do so to comply with effecting the SEC rules applicable to such registration statement and related offeringIPO; provided that the Company’s covenants under this Subsection 3.1 shall be reinstated at such time as the Company is no longer actively employing its commercially reasonable best efforts to cause such registration statement to become effective.
Appears in 2 contracts
Sources: Investor Rights Agreement, Investor Rights Agreement (Brightcove Inc)
Delivery of Financial Statements. The Company shall deliver (i) to each Major InvestorInvestor (in each case including a copy to ▇▇▇▇▇▇▇▇▇▇@▇▇▇.▇▇▇) the information set forth in Subsections (a) – (f) below and (ii) to GS Direct, provided that L.L.C. (“GS”) the Board of Directors has not reasonably determined that such Major Investor is information set forth in Subsections (or, in the case of a Major Investor that is an individual, is employed by or serves as a consultant toa) a competitor of the Companyand (b) below:
(a) as soon as practicable, but in any event within one hundred twenty ninety (12090) days after the end of each fiscal year of the Company, (i) a balance sheet as of the end of such year, (ii) statements of income and of cash flows for such year, and a comparison between (x) the actual amounts as of and for such fiscal year and (y) the comparable amounts for the prior year and as included in the Budget (as defined in Subsection Section 3.1(e)) for such year, with an explanation of any material differences between such amounts and a schedule as to the sources and applications of funds for such year, ; and (iii) a statement of stockholders’ equity as of the end of such year, all such financial statements audited and certified by independent public accountants selected by the Company and approved by the Board of Directors, including which approval shall include the approval of at least two of the Preferred Directors;
(b) as soon as practicable, but in any event within forty-five (45) days after the end of each of the first three (3) quarters of each fiscal year of the Company, unaudited statements of income and of cash flows for such fiscal quarter, and an unaudited balance sheet and a statement of stockholders’ equity as of the end of such fiscal quarter, all prepared in accordance with GAAP (except that such financial statements reports may (i) be subject to normal year-end audit adjustments and (ii) not contain all notes thereto that may be required in accordance with GAAP);
(c) as soon as practicable, but in any event within forty-five (45) days after the end of each of the first three (3) quarters of each fiscal year of the Company, a statement showing the number of shares of each class and series of capital stock and securities convertible into or exercisable for shares of capital stock outstanding at the end of the period, the Common Stock issuable upon conversion or exercise of any outstanding securities convertible or exercisable for Common Stock and the exchange ratio or exercise price applicable thereto, and the number of shares of issued stock options and stock options not yet issued but reserved for issuance, if any, all in sufficient detail as to permit any Major Investor the Investors to calculate its their respective percentage equity ownership in the Company, and certified by the chief financial officer or chief executive officer of the Company as being true, complete complete, and correct;
(d) as soon as practicable, but in any event within thirty (30) days of the end of each month, an unaudited income statement and statement of cash flows for such month, and an unaudited balance sheet as of the end of such month (“Monthly Financials”), all prepared in accordance with GAAP (except that such financial statements may (i) be subject to normal year-end audit adjustments and (ii) not contain all notes thereto that may be required in accordance with GAAP); provided, however, that the Company shall have no obligation to deliver such Monthly Financials until such time that the Company undertakes to prepare monthly financials reports;
(e) as soon as practicable, but in any event thirty (30) days before the end of each fiscal year, a budget and business plan for the next fiscal year (collectively, the “Budget”), approved by the Board of Directors and prepared on a quarterly monthly basis, including balance sheets, income statements, and statements of cash flow for such quarters months and, promptly after prepared, any other budgets or revised budgets or forecasts prepared by the Company; and including, in each case, any revisions thereto; and
(ef) such other information relating to as soon as practicable, any reports or analyses concerning the financial condition, business, prospects or corporate affairs fair market value of the Common Stock, whether prepared by Company as any Major Investor may from time to time reasonably requestemployees or third parties; provided, however, that the Company shall not be obligated under this Subsection 3.1 have no obligation to provide information (i) that disclose any report prepared by third parties if such disclosure is prohibited by the Company reasonably determines in good faith to be a trade secret terms of such report or confidential information (unless covered by an enforceable confidentiality agreement, in form acceptable to the Company) or (ii) the disclosure of which would adversely affect the attorney-client privilege between the Company and its counselanalysis. If, for any period, the Company has any subsidiary whose accounts are consolidated with those of the Company, then in respect of such period the financial statements delivered pursuant to the foregoing sections shall be the consolidated and consolidating financial statements of the Company and all such consolidated subsidiaries. Notwithstanding anything else in this Subsection Section 3.1 to the contrary, the Company may cease providing the information set forth in this Subsection Section 3.1 during the period starting with the date sixty thirty (6030) days before the Company’s good-faith estimate of the date of filing of a registration statement if it reasonably concludes it must do so to comply with the SEC rules applicable to such registration statement and related offering; provided provided, however, that the Company’s covenants under this Subsection Section 3.1 shall be reinstated at such time as the Company is no longer actively employing its commercially reasonable efforts to cause such registration statement to become effective.
Appears in 2 contracts
Sources: Investors’ Rights Agreement (Zendesk, Inc.), Investors’ Rights Agreement (Zendesk, Inc.)
Delivery of Financial Statements. The If requested, the Company shall deliver to each Major Investor, provided that the Board of Directors has not reasonably determined that such Major Investor is (or, in the case of a Major Investor that is an individual, is employed by or serves as a consultant to) a competitor of the Company:
(a) as soon as practicable, but in any event within one hundred twenty eighty (120180) days after the end of each fiscal year of the Company, (i) a balance sheet as of the end of such year, (ii) statements of income and of cash flows for such year, and a comparison between (x) the actual amounts as of and for such fiscal year and (y) the comparable amounts for the prior year and as included in the Budget (as defined in Subsection 3.1(eSection 3.1(d)) for such year, with an explanation of any material differences between such amounts and a schedule as to the sources and applications of funds for such year, and (iii) a statement of stockholders’ equity as of the end of such year, all such financial statements audited and certified by independent public accountants of nationally recognized standing selected by the Company and approved by the Board of Directors, including the Preferred DirectorsCompany;
(b) as soon as practicable, but in any event within forty-five (45) days after the end of each of the first three (3) quarters of each fiscal year of the Company, unaudited statements of income and of cash flows for such fiscal quarter, and an unaudited balance sheet and a statement of stockholders’ equity as of the end of such fiscal quarter, all prepared in accordance with GAAP (except that such financial statements may (i) be subject to normal year-end audit adjustments and (ii) not contain all notes thereto that may be required in accordance with GAAP);
(c) as soon as practicable, but in any event within forty-five (45) days after the end of each of the first three (3) quarters of each fiscal year of the Company, a statement showing the number of shares of each class and series of capital stock and securities convertible into or exercisable for shares of capital stock outstanding at the end of the period, the Common Stock issuable upon conversion or exercise of any outstanding securities convertible or exercisable for Common Stock and the exchange ratio or exercise price applicable thereto, and the number of shares of issued stock options and stock options not yet issued but reserved for issuance, if any, all in sufficient detail as to permit any Major Investor the Investors to calculate its their respective percentage equity ownership in the Company, and certified by the chief financial officer or chief executive officer of the Company as being true, complete complete, and correct;
(d) as soon as practicable, but in any event within thirty (30) days before of the end of each fiscal year, a budget and business plan for the next fiscal year (collectively, the “Budget”), approved by the Board of Directors and prepared on a quarterly basis, including balance sheets, income statements, and statements of cash flow for such quarters months and, promptly after prepared, any other budgets or revised budgets prepared by the Company; and
(e) such other information relating with respect to the financial conditionstatements called for in Section 3.1(a) and Section 3.1(b), business, prospects or corporate affairs an instrument executed by the chief financial officer and chief executive officer of the Company certifying that such financial statements were prepared in accordance with GAAP consistently applied with prior practice for earlier periods (except as any Major Investor may from time to time reasonably request; provided, however, that otherwise set forth in Section 3.1(b)) and fairly present the Company shall not be obligated under this Subsection 3.1 to provide information (i) that the Company reasonably determines in good faith to be a trade secret or confidential information (unless covered by an enforceable confidentiality agreement, in form acceptable to the Company) or (ii) the disclosure financial condition of which would adversely affect the attorney-client privilege between the Company and its counselresults of operation for the periods specified therein. If, for any period, the Company has any subsidiary whose accounts are consolidated with those of the Company, then in respect of such period the financial statements delivered pursuant to the foregoing sections shall be the consolidated and consolidating financial statements of the Company and all such consolidated subsidiaries. Notwithstanding anything else in this Subsection Section 3.1 to the contrary, the Company may cease providing the information set forth in this Subsection Section 3.1 during the period starting with the date sixty (60) days before the Company’s good-faith estimate of the date of filing of a registration statement if it reasonably concludes it must do so to comply with the SEC rules applicable to such registration statement and related offering; provided that the Company’s covenants under this Subsection Section 3.1 shall be reinstated at such time as the Company is no longer actively employing its commercially reasonable efforts to cause such registration statement to become effective.
Appears in 2 contracts
Sources: Investors’ Rights Agreement (Flex Pharma, Inc.), Investors’ Rights Agreement (Flex Pharma, Inc.)
Delivery of Financial Statements. The Company shall deliver to each Major Investor, provided that the Board of Directors has not reasonably determined that such Major Investor is (or, in the case of a Major Investor that is an individual, is employed by or serves as a consultant to) a competitor of the Company:
(a) as As soon as practicable, but in any event within one hundred twenty (120) days after the end of each fiscal year of the Company, (i) a balance sheet as of the end of such year, (ii) statements of income and of cash flows for such year, and a comparison between (x) the actual amounts as of and for such fiscal year and (y) the comparable amounts for the prior year and as included in the Budget (as defined in Subsection 3.1(e3.1(d)) for such year, with an explanation of any material differences between such amounts and a schedule as to the sources and applications of funds for such year, and (iii) a statement of stockholders’ equity as of the end of such year, all such financial statements audited and shall be audited, certified by independent public accountants of nationally recognized standing selected by the Company and approved by the Board of Directors, including the Preferred Directorsprepared in accordance with GAAP;
(b) as soon as practicable, but in any event within forty-five (45) days after the end of each of the first three (3) quarters of each fiscal year of the Company, unaudited statements of income and of cash flows for such fiscal quarter, and an unaudited balance sheet and a statement of stockholders’ equity as of the end of such fiscal quarter, all prepared in accordance with GAAP (except that such financial statements may (i) be subject to normal year-end audit adjustments adjustments; and (ii) not contain all notes thereto that may be required in accordance with GAAP);
(c) as soon as practicable, but in any event within forty-five thirty (4530) days after of the end of each month, an unaudited income statement and statement of the first three (3) quarters cash flows for such month, and an unaudited balance sheet and statement of each fiscal year stockholders’ equity as of the Company, a statement showing the number of shares of each class and series of capital stock and securities convertible into or exercisable for shares of capital stock outstanding at the end of the period, the Common Stock issuable upon conversion or exercise of any outstanding securities convertible or exercisable for Common Stock and the exchange ratio or exercise price applicable thereto, and the number of shares of issued stock options and stock options not yet issued but reserved for issuance, if anysuch month, all prepared in sufficient detail as accordance with GAAP (except that such financial statements may (i) be subject to permit any Major Investor to calculate its percentage equity ownership normal year-end audit adjustments and (ii) not contain all notes thereto that may be required in the Company, and certified by the chief financial officer or chief executive officer of the Company as being true, complete and correctaccordance with GAAP);
(d) as soon as practicable, but in any event thirty (30) days before the end of each fiscal year, a budget and business copy of the Company’s annual operating plan for the next fiscal year (collectively, the “Budget”), approved by the Board of Directors and prepared on a quarterly monthly basis, including balance sheets, income statements, and statements of cash flow for such quarters months and, promptly after prepared, any other budgets or revised budgets prepared by the Company; and;
(e) with respect to the financial statements called for in Subsection 3.1(a), Subsection 3.1(b) and Subsection 3.1(c), an instrument executed by the chief financial officer and chief executive officer of the Company certifying that such financial statements were prepared in accordance with GAAP consistently applied with prior practice for earlier periods (except as otherwise set forth in Subsection 3.1(b) and Subsection 3.1(c)) and fairly present the financial condition of the Company and its results of operation for the periods specified therein;
(f) such other information relating to the financial condition, business, prospects prospects, or corporate affairs of the Company as any Major Investor may from time to time reasonably request; provided, however, that the Company shall not be obligated under this Subsection 3.1 to provide information (i) that the Company reasonably determines in good faith to be a trade secret or confidential information (unless covered by an enforceable confidentiality agreement, in a form acceptable to the Company) ); or (ii) the disclosure of which would adversely affect the attorney-client privilege between the Company and its counsel. If, for any period, the Company has any subsidiary whose accounts are consolidated with those of the Company, then in respect of such period the financial statements delivered pursuant to the foregoing sections shall be the consolidated and consolidating financial statements of the Company and all such consolidated subsidiaries. Notwithstanding anything else in this Subsection 3.1 to the contrary, the Company may cease providing the information set forth in this Subsection 3.1 during the period starting with the date sixty (60) days before the Company’s good-faith estimate of the date of filing of a registration statement if it reasonably concludes it must do so to comply with the SEC rules applicable to such registration statement and related offering; provided that the Company’s covenants under this Subsection 3.1 shall be reinstated at such time as the Company is no longer actively employing its commercially reasonable efforts to cause such registration statement to become effective.
Appears in 2 contracts
Sources: Investors’ Rights Agreement (IMARA Inc.), Investors’ Rights Agreement (IMARA Inc.)
Delivery of Financial Statements. The Company shall deliver to each Holder (or transferee of a Holder) that holds at least 75,000 shares (as adjusted for stock splits, dividends, combinations and the like with respect to such shares after the date hereof) of Preferred Stock or Registrable Securities (each a “Major Investor, provided that the Board of Directors has not reasonably determined that such Major Investor is (or, in the case of a Major Investor that is an individual, is employed by or serves as a consultant to) a competitor of the Company:”):
(a) as soon as practicable, but in any event within one hundred twenty ninety (12090) days after the end of each fiscal year of the Company, (i) an income statement for such fiscal year, a balance sheet as of the end of such year, (ii) statements of income Company and of cash flows for such year, and a comparison between (x) the actual amounts as of and for such fiscal year and (y) the comparable amounts for the prior year and as included in the Budget (as defined in Subsection 3.1(e)) for such year, with an explanation of any material differences between such amounts and a schedule as to the sources and applications of funds for such year, and (iii) a statement of stockholders’ equity as of the end of such year, all and a statement of cash flows for such year, such year-end financial statements audited reports to be in reasonable detail, prepared in accordance with generally accepted accounting principles (“GAAP”) and certified by independent public accountants of recognized national standing selected by the Company and approved by the Board of Directors, including the Preferred DirectorsCompany;
(b) as soon as practicable, but in any event within forty-five (45) days after the end of each of the first three (3) quarters of each fiscal year of the Company, an unaudited statements of income and statement, statement of cash flows for such fiscal quarter, quarter and an unaudited balance sheet and a statement of stockholders’ equity as of the end of such fiscal quarter;
(c) with respect to the financial statements called for in subsection (b) of this Section 2.1, all an instrument executed by the Chief Financial Officer or President of the Company certifying that such financials were prepared in accordance with GAAP consistently applied with prior practice for earlier periods (except with the exception of footnotes that such may be required by GAAP) and fairly present the financial statements may (i) be condition of the Company and its results of operation for the period specified, subject to normal year-end audit adjustments and (ii) not contain all notes thereto that may be required in accordance with GAAP);adjustment; and
(cd) as soon as practicable, but annually (and in any event within forty-five no later than ten (4510) days after adoption by the end Board of each Directors of the first three (3Company) quarters of each fiscal year the operating plan of the Company, a statement showing the number of shares of each class and series of capital stock and securities convertible into or exercisable for shares of capital stock outstanding at the end of the period, the Common Stock issuable upon conversion or exercise of any outstanding securities convertible or exercisable for Common Stock and the exchange ratio or exercise price applicable thereto, and the number of shares of issued stock options and stock options not yet issued but reserved for issuance, if any, all in sufficient detail as to permit any Major Investor to calculate its percentage equity ownership in the Company, and certified form approved by the chief financial officer or chief executive officer Board of the Company Directors, which operating plan shall include at least a projection of income and a projected cash flow statement for each fiscal quarter in such fiscal year and a projected balance sheet as being true, complete and correct;
(d) as soon as practicable, but in any event thirty (30) days before of the end of each fiscal quarter in such fiscal year, a budget and business . Any material changes in such operating plan for the next fiscal year (collectively, the “Budget”), shall be delivered to each Major Investor as promptly as practicable after such changes have been approved by the Board of Directors and prepared on a quarterly basis, including balance sheets, income statements, and statements of cash flow for such quarters and, promptly after prepared, any other budgets or revised budgets prepared by the Company; andDirectors.
(e) such other information relating to the financial condition, business, prospects business or corporate affairs of the Company as any the Major Investor may from time to time reasonably request; , provided, however, that the Company shall not be obligated under this Subsection 3.1 subsection (e) or any other subsection of Section 2.1 to provide information (i) that the Company reasonably determines it deems in good faith to be a trade secret or similar confidential information (unless covered by an enforceable confidentiality agreement, in form acceptable to the Company) or (ii) the disclosure of which would adversely affect the attorney-client privilege between the Company and its counsel. If, for any period, the Company has any subsidiary whose accounts are consolidated with those of the Company, then in respect of such period the financial statements delivered pursuant to the foregoing sections shall be the consolidated and consolidating financial statements of the Company and all such consolidated subsidiaries. Notwithstanding anything else in this Subsection 3.1 to the contrary, the Company may cease providing the information set forth in this Subsection 3.1 during the period starting with the date sixty (60) days before the Company’s good-faith estimate of the date of filing of a registration statement if it reasonably concludes it must do so to comply with the SEC rules applicable to such registration statement and related offering; provided that the Company’s covenants under this Subsection 3.1 shall be reinstated at such time as the Company is no longer actively employing its commercially reasonable efforts to cause such registration statement to become effectiveinformation.
Appears in 2 contracts
Sources: Investors’ Rights Agreement (Inogen Inc), Investors’ Rights Agreement (Inogen Inc)
Delivery of Financial Statements. The Company shall shall, upon request, deliver to each Investor (or transferee of an Investor) that holds at least 750,000 shares of Registrable Securities (appropriately adjusted for any stock split, dividend, combination or other recapitalization) (a “Major Investor, provided that the Board of Directors has not reasonably determined that such Major Investor is (or, in the case of a Major Investor that is an individual, is employed by or serves as a consultant to) a competitor of the Company:”):
(a) as soon as practicable, but in any event within one hundred twenty (120) days after the end of each fiscal year of the Company, (i) an income statement for such fiscal year, a balance sheet as of the end of such year, (ii) statements of income Company and of cash flows for such year, and a comparison between (x) the actual amounts as of and for such fiscal year and (y) the comparable amounts for the prior year and as included in the Budget (as defined in Subsection 3.1(e)) for such year, with an explanation of any material differences between such amounts and a schedule as to the sources and applications of funds for such year, and (iii) a statement of stockholdersshareholders’ equity as of the end of such year, all and a statement of cash flows for such year, such year-end financial reports to be in reasonable detail, prepared in accordance with generally accepted accounting principles (“GAAP”), and, upon such time as the Board of Directors determines that the Company’s financial statements be audited, audited and certified by independent public accountants of nationally recognized standing selected by the Company and approved by the Board of Directors, including the Preferred Directors;Company; and
(b) as soon as practicable, but in any event within forty-five (45) days after the end of each of the first three (3) quarters of each fiscal year of the Company, an unaudited statements of income and statement, statement of cash flows for such fiscal quarter, quarter and an unaudited balance sheet and a statement of stockholders’ equity as of the end of such fiscal quarter, all prepared in accordance with GAAP (except that such financial statements may (i) be subject to normal year-end audit adjustments and (ii) not contain all notes thereto that may be required in accordance with GAAP);
(c) as soon as practicable, but in any event within forty-five (45) days after the end of each of the first three (3) quarters of each fiscal year of the Company, a statement showing the number of shares of each class and series of capital stock and securities convertible into or exercisable for shares of capital stock outstanding at the end of the period, the Common Stock issuable upon conversion or exercise of any outstanding securities convertible or exercisable for Common Stock and the exchange ratio or exercise price applicable thereto, and the number of shares of issued stock options and stock options not yet issued but reserved for issuance, if any, all in sufficient detail as to permit any Major Investor to calculate its percentage equity ownership in the Company, and certified by the chief financial officer or chief executive officer of the Company as being true, complete and correct;
(d) as soon as practicable, but in any event thirty (30) days before the end of each fiscal year, a budget and business plan for the next fiscal year (collectively, the “Budget”), approved by the Board of Directors and prepared on a quarterly basis, including balance sheets, income statements, and statements of cash flow for such quarters and, promptly after prepared, any other budgets or revised budgets prepared by the Company; and
(ec) such other information relating to the financial condition, business, prospects business or corporate affairs of the Company as any the Major Investor may from time to time reasonably request; , provided, however, that the Company shall not be obligated under this Subsection 3.1 subsection (c) or any other subsection of Section 2.1 to provide information that (i) that the Company reasonably determines it deems in good faith to be a trade secret or similar confidential information (unless covered by an enforceable confidentiality agreement, in form acceptable to the Company) or (ii) the disclosure of which would adversely affect the attorney-client privilege between the Company and its counsel. If, for any period, the Company has any subsidiary whose accounts are consolidated with those of the Company, then in respect of such period the financial statements delivered pursuant to the foregoing sections shall be the consolidated and consolidating financial statements of the Company and all such consolidated subsidiaries. Notwithstanding anything else in this Subsection 3.1 to the contrary, the Company may cease providing the information set forth in this Subsection 3.1 during the period starting with the date sixty (60) days before the Company’s good-faith estimate of the date of filing of a registration statement if it reasonably concludes it must do so to comply with the SEC rules applicable to such registration statement and related offering; provided that the Company’s covenants under this Subsection 3.1 shall be reinstated at such time as the Company is no longer actively employing its commercially reasonable efforts to cause such registration statement to become effective.
Appears in 2 contracts
Sources: Investors’ Rights Agreement, Investors’ Rights Agreement (Okta, Inc.)
Delivery of Financial Statements. The Company shall deliver to each Major Investor, provided that the Board of Directors has not reasonably determined that such Major Investor is (or, in the case of a Major Investor that is an individual, is employed by or serves as a consultant to) a competitor of the Company:
(a) as soon as practicable, but in any event within one hundred twenty ninety (12090) days after the end of each fiscal year of the CompanyCompany or such later date, but, with respect to clauses (i), (ii) and (iii) below, not later than one-hundred eighty (180) days after the end of such fiscal year that the Board of Directors, including at least two Preferred Directors determine, (i) a balance sheet as of the end of such year, (ii) statements of income and of cash flows for such year, and a comparison between (x) the actual amounts as of and for such fiscal year and (y) the comparable amounts for the prior year and as included in the Budget (as defined in Subsection 3.1(e)) for such year, with an explanation of any material differences between such amounts and a schedule as to the sources and applications of funds for such year, and (iii) a statement of stockholders’ equity as of the end of such year, commencing with the fiscal year ending January 31, 2014, all such financial statements audited and certified by independent public accountants of nationally recognized standing selected by the Company and approved by the Board of Directors, including the Preferred Directors;
(biv) as soon as practicable, but in any event within forty-five (45) days after the end of each of the first three (3) quarters of each fiscal year of the Company, unaudited statements of income and of cash flows for such fiscal quarter, and an unaudited balance sheet and a statement of stockholders’ equity as of the end of such fiscal quarter, all prepared in accordance with GAAP (except that such financial statements may (i) be subject to normal year-end audit adjustments and (ii) not contain all notes thereto that may be required in accordance with GAAP);
(c) as soon as practicable, but in any event within forty-five (45) days after the end of each of the first three (3) quarters of each fiscal year of the Company, a statement showing the number of shares of each class and series of capital stock and securities convertible into or exercisable for shares of capital stock outstanding at the end of the applicable period, the Common Stock issuable upon conversion or exercise of any outstanding securities convertible or exercisable for Common Stock and the exchange ratio or exercise price applicable thereto, and the number of shares of issued stock options and stock options not yet issued but reserved for issuance, if any, all in sufficient detail as to permit any each Major Investor to calculate its the percentage equity ownership of such Major Investor (a “Capitalization Statement”);
(b) as soon as practicable, but in any event within forty-five (45) days after the end of each of the first three (3) quarters of each fiscal year of the Company, (i) unaudited statements of income and certified by the chief financial officer or chief executive officer of cash flows for such fiscal quarter, and an unaudited balance sheet and a statement of stockholders’ equity as of the Company end of such fiscal quarter, all prepared in accordance with GAAP (except that such financial statements may (A) be subject to normal year-end audit adjustments and (B) not contain all notes thereto that may be required in accordance with GAAP) and (ii) a Capitalization Statement;
(c) as being truesoon as practicable following a request by a Major Investor, complete but in any event within thirty (30) days of the date of the end of the month for which financial information is requested, an unaudited income statement and correctstatement of cash flows for such month, and an unaudited balance sheet and statement of stockholders’ equity as of the end of such month requested by such Major Investor, all prepared in accordance with GAAP (except that such financial statements may (i) be subject to normal year-end audit adjustments and (ii) not contain all notes thereto that may be required in accordance with GAAP);
(d) as soon as practicable, but in any event thirty (30) days before the end of each fiscal year, a budget and business plan for the next fiscal year (collectively, the “Budget”), approved by the Board of Directors and prepared on a quarterly monthly basis, including balance sheets, income statements, and statements of cash flow for such quarters months and, promptly after prepared, any other budgets or revised budgets prepared by the Company; and
(e) such other information relating to the financial condition, business, prospects prospects, or corporate affairs of the Company as any Major Investor may from time to time reasonably request, including without limitation information relating to accounting or securities law matters required by any Major Investor in connection with its audit; provided, however, that the Company shall not be obligated under this Subsection Section 3.1 to provide information (i) that the Company reasonably determines in good faith to be a trade secret or confidential information (unless covered by an enforceable confidentiality agreement, in form reasonably acceptable to the Company) or (ii) the disclosure of which would adversely affect the attorney-client privilege between the Company and its counsel. If, for any period, the Company has any subsidiary whose accounts are consolidated with those of the Company, then in respect of such period the financial statements delivered pursuant to the foregoing sections shall be the consolidated and consolidating financial statements of the Company and all such consolidated subsidiaries. Notwithstanding anything else in this Subsection Section 3.1 to the contrary, the Company may cease providing the information set forth in this Subsection Section 3.1 during the period starting with the date sixty thirty (6030) days before the Company’s good-faith estimate of the date of filing of a registration statement if it reasonably concludes it must do so to comply with the SEC rules applicable to such registration statement and related offering; provided that the Company’s covenants under this Subsection Section 3.1 shall be reinstated at such time as the Company is no longer actively employing its commercially reasonable efforts to cause such registration statement to become effective.
Appears in 2 contracts
Sources: Investors’ Rights Agreement (MongoDB, Inc.), Investors’ Rights Agreement (MongoDB, Inc.)
Delivery of Financial Statements. (a) The Company shall deliver to each Major Investor, provided that the Board of Directors has not reasonably determined that such Major Investor is (or, in the case of a Major Investor that is an individual, is employed by or serves as a consultant to) a competitor of the Company:
(a1) as soon as practicable, but in any event within one hundred twenty (120) days after the end of each fiscal year of the Company, (i) a balance sheet as of the end of such year, (ii) statements of income and of cash flows for such year, and a comparison between (x) the actual amounts as of and for such fiscal year and (y) the comparable amounts for the prior year and as included in the Budget (as defined in Subsection 3.1(e)) for such year, with an explanation of any material differences between such amounts and a schedule as to the sources and applications of funds for such year, and (iii) a statement of stockholders’ equity as of the end of such year, all such financial statements audited and certified by independent public accountants of nationally recognized standing selected by the Company and approved by the Board of Directors, including the Preferred Directors;
(b2) as soon as practicable, but in any event within forty-five (45) days after the end of each of the first three (3) quarters of each fiscal year of the Company, unaudited statements of income and of cash flows for such fiscal quarter, and an unaudited balance sheet and a statement of stockholders’ equity as of the end of such fiscal quarter, all prepared in accordance with GAAP (except that such financial statements may (i) be subject to normal year-end audit adjustments and (ii) not contain all notes thereto that may be required in accordance with GAAP);
(c3) as soon as practicable, but in any event within forty-forty five (45) days after the end of each fiscal year of the first three Company, (3i) quarters an unaudited balance sheet as of each the end of such year, (ii) unaudited statements of income and of cash flows for such year, and a comparison between (x) the actual amounts as of and for such fiscal year and (y) the comparable amounts for the prior year and as included in the Budget for such year, with an explanation of any material differences between such amounts and a schedule as to the sources and applications of funds for such year, and (iii) an unaudited statement of stockholders’ equity as of the end of such year;
(4) as soon as practicable, (i) but in any event within sixty (60) days, after each of (x) June 30th and (y) December 31st and (ii) after the closing of any additional sale and issuance of preferred stock of the Company, a statement showing the number of shares of each class and series of capital stock and securities convertible into or exercisable for shares of capital stock of the Company outstanding at the end of the period, the Common Stock issuable upon conversion or exercise of any outstanding securities convertible or exercisable for Common Stock and the exchange ratio or exercise price applicable thereto, and the number of shares of issued stock options and stock options not yet issued but reserved for issuance, if any, all in sufficient detail as to permit any the Major Investor Investors to calculate its their respective percentage equity ownership in the Company, and certified by the chief financial officer or chief executive officer of the Company as being true, complete complete, and correct;
(d5) simultaneously with the delivery to the members of the Board of Directors, a copy of the meeting materials sent in advance of quarterly Board of Director meetings; and
(6) with respect to the financial statements called for in Section 3.1(a)(1), Section 3.1(a)(2) and Section 3.1(a)(3) upon request of a Major Investor, an instrument executed by the chief financial officer and chief executive officer of the Company certifying that such financial statements were prepared in accordance with GAAP consistently applied with prior practice for earlier periods (except as otherwise set forth in Section 3.1(a)(2) and Section 3.1(a)(3)) and fairly present the financial condition of the Company and its results of operation for the periods specified therein; provided, however, that the Company shall not be obligated under this Section 3.1(a) to provide information (i) that the Company reasonably determines in good faith to be a trade secret or confidential information (unless covered by an enforceable confidentiality agreement, in form acceptable to the Company) or (ii) the disclosure of which would adversely affect the attorney-client privilege between the Company and its counsel.
(b) In addition to the financial statements set forth in Section 3.1(a) above, the Company shall deliver to each Major Investor that holds at least 946 shares of Series A Preferred Stock (or Common Stock issued upon conversion thereof):
(1) as soon as practicable, but in any event within thirty (30) days of the end of each month, an unaudited income statement and statement of cash flows for such month, and an unaudited balance sheet and statement of stockholders’ equity as of the end of such month, all prepared in accordance with GAAP (except that such financial statements may (i) be subject to normal year-end audit adjustments and (ii) not contain all notes thereto that may be required in accordance with GAAP);
(2) as soon as practicable, but in any event thirty (30) days before the end of each fiscal year, a budget and business plan for the next fiscal year (collectively, the “Budget”), approved by the Board of Directors and prepared on a quarterly monthly basis, including balance sheets, income statements, and statements of cash flow for such quarters months and, promptly after prepared, any other budgets or revised budgets prepared by the Company;
(3) with respect to the financial statements called for in Section 3.1(b)(1), upon request of a Major Investor, an instrument executed by the chief financial officer and chief executive officer of the Company certifying that such financial statements were prepared in accordance with GAAP consistently applied with prior practice for earlier periods (except as otherwise set forth in Section 3.1(b)(2)) and fairly present the financial condition of the Company and its results of operation for the periods specified therein; and
(e4) such other information relating to the financial condition, business, prospects prospects, or corporate affairs of the Company as any a Major Investor may from time to time reasonably request; provided, however, that the Company shall not be obligated under this Subsection 3.1 Section 3.1(b) to provide information (i) that the Company reasonably determines in good faith to be a trade secret or confidential information (unless covered by an enforceable confidentiality agreement, in form acceptable to the Company) or (ii) the disclosure of which would adversely affect the attorney-client privilege between the Company and its counsel. If, for any period, the Company has any subsidiary whose accounts are consolidated with those of the Company, then in respect of such period the financial statements delivered pursuant to the foregoing sections shall be the consolidated and consolidating financial statements of the Company and all such consolidated subsidiaries. Notwithstanding anything else in this Subsection Section 3.1 to the contrary, the Company may cease providing the information set forth in this Subsection Section 3.1 during the period starting with the date sixty forty-five (6045) days before the Company’s good-faith estimate of the date of filing of a registration statement if it reasonably concludes it must do so to comply with the SEC rules applicable to such registration statement and related offering; provided that the Company’s covenants under this Subsection Section 3.1 shall be reinstated at such time as the Company is no longer actively employing its commercially reasonable efforts to cause such registration statement to become effective.
Appears in 2 contracts
Sources: Investors’ Rights Agreement (Wayfair Inc.), Investors’ Rights Agreement (Wayfair Inc.)
Delivery of Financial Statements. The Company shall deliver to each Major Investor, provided that the Board of Directors has not reasonably determined that such Major Investor is (or, in the case of a Major Investor that is an individual, is employed by or serves as a consultant to) a competitor of the CompanyInvestors:
(a) as As soon as practicable, but in any event within one hundred twenty (120) 120 days after the end of each fiscal year of the Company, Company (i) a an audited balance sheet as of the end of such year, (ii) audited statements of income and of cash flows for such year, and a comparison between (x) the actual amounts as of and for such fiscal year and (y) the comparable amounts for the prior year and as included in the Budget (as defined in Subsection 3.1(e)) for such year, with an explanation of any material differences between such amounts and a schedule as to the sources and applications of funds for such year, and (iii) a statement of stockholders’ equity as of the end of such year, all such financial statements audited and certified by independent public accountants selected by the Company and approved by the Board of Directors, including the Preferred Directors;
(b) as soon as practicable, but in any event within forty-five (45) 30 days after the end of each of the first three (3) quarters of each fiscal year of the Company, unaudited statements of income and of cash flows for such fiscal quarter, and an unaudited balance sheet and a statement of stockholders’ equity as of the end of such fiscal quarter, all prepared in accordance with GAAP (except that such financial statements may (i) be subject to normal year-end audit adjustments adjustments; and (ii) not contain all notes thereto that may be required in accordance with GAAP);
(c) as soon as practicable, but in any event within forty-five (45) days after concurrently with the end of each delivery of the first three (3financial statements described in Sections 3.1(a) quarters of each fiscal year of the Companyand 3.1(b), a statement showing the number of shares of each class and series of capital stock and securities convertible into or exercisable for shares of capital stock outstanding at the end of the period, the Common Stock issuable upon conversion or exercise of any outstanding securities convertible or exercisable for Common Stock and the exchange ratio or exercise price applicable thereto, and the number of shares of issued stock options and stock options not yet issued but reserved for issuance, if any, all in sufficient detail as to permit any Major each Investor to calculate its percentage equity ownership in the Company, and certified by the chief financial officer or chief executive officer of the Company as being true, complete complete, and correct;
(d) as soon as practicable, but in any event within thirty (30) days of the end of each month, an unaudited income statement and statement of cash flows for such month, and an unaudited balance sheet and statement of stockholders’ equity as of the end of such month, all prepared in accordance with GAAP (except that such financial statements may (i) be subject to normal year-end adjustments and (ii) not contain all notes thereto that may be required in accordance with GAAP);
(e) as soon as practicable, but in any event ten (10) days before the end of each fiscal year, a budget and business plan for the next fiscal year approved by the Board of Directors (including either the Class B Director or a Class C Director, provided that at the time of such approval either PBM has a Class B Director or Deerfield has a Class C Director seated on the Company’s Board of Directors, and such director does not unreasonably withhold his approval of such budget and business plan) no later than 30 days following the beginning of such next fiscal year (collectively, the “Budget”), approved by the Board of Directors and prepared on a quarterly monthly basis, including balance sheets, income statements, and statements of cash flow for such quarters months and, promptly after prepared, any other budgets or revised budgets prepared by the Company; and;
(ef) such other information relating to the financial condition, business, prospects prospects, or corporate affairs of the Company as any Major Investor the Investors may from time to time reasonably request, including, but not limited to, information relating to the Company’s clinical trials and studies; provided, however, that the Company shall not be obligated under this Subsection 3.1 to provide information (i) that the Company reasonably determines in good faith to be a trade secret or confidential information (unless covered by an enforceable confidentiality agreement, in a form acceptable to the Company) ; the confidentiality obligations in Section 3.4 hereof are sufficient and acceptable for this purpose); or (ii) the disclosure of which would adversely affect the attorney-client privilege between the Company and its counsel. Following the date of this Agreement, the Company shall promptly ensure that the annual financial statements for previously completed fiscal years are audited to the extent necessary to prepare and file a registration statement with the SEC. If, for any period, the Company has any subsidiary whose accounts are consolidated with those of the Company, then in respect of such period the financial statements delivered pursuant to the foregoing sections shall be the consolidated and consolidating financial statements of the Company and all such consolidated subsidiaries. Notwithstanding anything else in this Subsection 3.1 to the contrary, the Company may cease providing the information set forth in this Subsection 3.1 during the period starting with the date sixty thirty (6030) days before the Company’s good-faith estimate of the date of filing of a registration statement if it reasonably concludes it must do so to comply with the SEC rules applicable to such registration statement and related offering; provided that the Company’s covenants under this Subsection 3.1 shall be reinstated at such time as the Company is no longer actively employing its commercially reasonable efforts to cause such registration statement to become effective. The Company shall promptly and accurately respond, and shall use its commercially reasonable efforts to cause its transfer agent to promptly respond, to requests for information made on behalf of any ▇. ▇▇▇▇ Price Investor relating to (i) accounting or securities law matters required in connection with its audit or (ii) the actual holdings of the ▇. ▇▇▇▇ Price Investor, including in relation to the total outstanding shares; provided, however, that the Company shall not be obligated to provide any such information that could reasonably result in a violation of applicable law or conflict with a confidentiality obligation of the Company. On or prior to the effectiveness of the IPO, the Company shall provide each ▇. ▇▇▇▇ Price Investor written confirmation of its equity holdings in the Company (on an as-converted basis). Notwithstanding anything to the contrary in the Prior Agreement, the Investors hereby waive any breach by the Company of the information rights provided in the Prior Agreement.
Appears in 2 contracts
Sources: Investor Rights Agreement (AveXis, Inc.), Investor Rights Agreement (AveXis, Inc.)
Delivery of Financial Statements. The Company shall deliver to each Major Investor, provided that the Board of Directors has not reasonably determined that such Major Investor is (or, in the case of a Major Investor that is an individual, is employed by or serves as a consultant to) a competitor of the Company:
(a) as soon as practicable, but in any event within one hundred twenty fifty (120150) days after the end of each fiscal year of the Company, (i) a balance sheet as of the end of such year, (ii) statements of income and of cash flows for such year, and a comparison between (x) the actual amounts as of and for such fiscal year and (y) the comparable amounts for the prior year and as included in the Budget (as defined in Subsection 3.1(e)) for such year, with an explanation of any material differences between such amounts and a schedule as to the sources and applications of funds for such year, and (iii) a statement of stockholders’ equity as of the end of such year, all such financial statements audited and certified by independent public accountants of nationally recognized standing selected by the Company and approved by the Board of Directors, including the Preferred DirectorsCompany;
(b) as soon as practicable, but in any event within forty-five sixty (4560) days after the end of each of the first three (3) quarters of each fiscal year of the Company, unaudited statements of income and of cash flows for such fiscal quarter, quarter and an unaudited balance sheet and a statement of stockholders’ equity as of the end of such fiscal quarter, all prepared in accordance with GAAP (except that such financial statements may (i) be subject to normal year-end audit adjustments and (ii) not contain all notes thereto that may be required in accordance with GAAP);
(c) as soon as practicable, but in any event within forty-five sixty (4560) days after the end of each of the first three (3) quarters of each fiscal year of the Company, a statement showing the number of shares of each class and series of capital stock and securities convertible into or exercisable for shares of capital stock outstanding at the end of the period, the Common Stock issuable upon conversion or exercise of any outstanding securities convertible or exercisable for Common Stock and the exchange ratio or exercise price applicable thereto, and the number of shares of issued stock options and stock options not yet issued but reserved for issuance, if any, all in sufficient detail as to permit any the Major Investor Investors to calculate its their respective percentage equity ownership in the Company, and certified by the chief financial officer or chief executive officer of the Company as being true, complete and correct;
(d) as soon as practicable, but in any event thirty (30) days before the end of each fiscal year, a budget and business plan for the next fiscal year (collectively, the “Budget”), approved by the Board of Directors and prepared on a quarterly basis, including balance sheets, income statements, and statements of cash flow for such quarters and, promptly after prepared, any other budgets or revised budgets prepared by the Company; and
(e) such other information relating to the financial condition, business, prospects prospects, or corporate affairs of the Company as any Major Investor may from time to time reasonably request; provided, however, that the Company shall not be obligated under this Subsection Section 3.1 to provide information and/or may redact or withhold certain information (i) that the Company reasonably determines in good faith to be a trade secret or confidential information (unless covered by an enforceable confidentiality agreement, in form acceptable to the Company) or ), (ii) the disclosure of which would adversely affect the attorney-client privilege between the Company and its counsel, or (iii) that the Company reasonably determines in good faith to be competitively sensitive information with respect to such Major Investor who is receiving information pursuant to this Section 3.1. If, for any period, the Company has any subsidiary whose accounts are consolidated with those of the Company, then in respect of such period the financial statements delivered pursuant to the foregoing sections shall be the consolidated and consolidating financial statements of the Company and all such consolidated subsidiaries. Notwithstanding anything else in this Subsection Section 3.1 to the contrary, the Company may cease providing the information set forth in this Subsection Section 3.1 during the period starting with the date sixty thirty (6030) days before the Company’s good-faith estimate of the date of filing of a registration statement if it reasonably concludes it must do so to comply with the SEC rules applicable to such registration statement and related offering; provided that the Company’s covenants under this Subsection Section 3.1 shall be reinstated at such time as the Company is no longer actively employing its commercially reasonable efforts to cause such registration statement to become effective.
Appears in 2 contracts
Sources: Investors’ Rights Agreement (Moderna, Inc.), Investors’ Rights Agreement (Moderna, Inc.)
Delivery of Financial Statements. The Company shall deliver to each stockholder that holds at least 380,000 shares of Common Stock of the Company, on an as-converted basis (as adjusted for any stock splits, stock dividends, combinations, subdivisions, recapitalizations or the like) (a “Major InvestorHolder”), provided that the Board of Directors has not reasonably determined that such Major Investor Holder is (or, in the case of a Major Investor that is an individual, is employed by or serves as a consultant to) a competitor of the Company (for the sake of clarity, (i) a Major Holder that is a venture capital fund or similar investment fund or entity shall not be deemed to be a competitor of the Company due to an investment in a portfolio company that is a competitor to the Company:; (ii) each of GV 2016, L.P., and GV 2019, L.P. or any of their affiliated funds shall not be deemed to be a competitor solely as a result of any affiliation between such funds and Alphabet, Inc. (including any Affiliate of Alphabet, Inc.); (iii) Allianz Strategic Investments s.a.r.l. or any of its Affiliates shall not be deemed to be a competitor, (iv) Harel Insurance Company Ltd. or any of its Affiliates shall not be deemed to be a competitor and (v) SoftBank Group Capital Limited or any of its Affiliates shall not be deemed to be a competitor):
(a) as soon as practicable, but in any event within one hundred twenty (120) days after the end of each fiscal year of the Company, (i) an income statement for such fiscal year, a balance sheet as of the end of such year, (ii) statements of income Company and of cash flows for such year, and a comparison between (x) the actual amounts as of and for such fiscal year and (y) the comparable amounts for the prior year and as included in the Budget (as defined in Subsection 3.1(e)) for such year, with an explanation of any material differences between such amounts and a schedule as to the sources and applications of funds for such year, and (iii) a statement of stockholders’ equity as of the end of such year, and a statement of cash flows for such year, setting forth in each case in comparative form the figures for the previous fiscal year, all in reasonable detail, United States dollar-denominated, prepared in accordance with United States generally accepted accounting principles (“GAAP”), audited by one of the “big four” accounting firms (the “CPA”) or any other accounting firm which may be deemed acceptable by the Investors, and accompanied by an opinion of such firm which opinion shall state that such balance sheet and statements of income and cash flow have been prepared in accordance with GAAP applied on a basis consistent with that of the preceding fiscal year, and present fairly and accurately the financial position of the Company as of their date, and that the audit by such accountants in connection with such financial statements audited and certified by independent public accountants selected has been made in accordance with generally accepted auditing standards, unless waived by the Company and approved by the Board Company’s board of Directorsdirectors, including a majority of the Preferred DirectorsDirectors (as defined in the Restated Certificate) (the “Preferred Director Approval”);
(b) as soon as practicable, but in any event within forty-five (45) days after the end of each of the first three (3) quarters of each fiscal year of the Company, an unaudited statements of income and statement, statement of cash flows for such fiscal quarter, quarter and an unaudited balance sheet and a statement of stockholders’ equity as of the end of such fiscal quarter, setting forth in each case in comparative form the figures for the corresponding period of the previous fiscal year, all in reasonable detail, United States dollar-denominated and certified, by the chief financial officer (or if none, by the chief executive officer) of the Company, that such financial statements were prepared in accordance with GAAP (applied on a basis consistent with that of preceding periods and, except that such as otherwise stated therein, fairly present the financial statements may (i) be position of the Company as of their date subject to normal (x) there being no footnotes contained therein and (y) changes resulting from year-end audit adjustments adjustments, and all reviewed by the CPA, unless such CPA review is waived, in whole or in part, by the Company’s board of directors, including a Preferred Director Approval (ii) not contain all notes thereto that may be required as defined in accordance with GAAPthe Restated Certificate);
(c) as soon as practicableupon request of the Major Holders holding at least one-third of all Preferred Stock then held by the Major Holders, but internal monthly unaudited financial statements, compared against plan or monthly reports in any event a form agreed by the board of directors of the Company, with a Preferred Director Approval, within forty-five thirty (4530) days after following the end of each month, which reports shall include a business update and overview and an unaudited consolidated balance sheet and unaudited consolidated statements of the first three (3i) quarters of each fiscal year of the Company, a statement showing the number of shares of each class income and series of capital stock and securities convertible into or exercisable for shares of capital stock outstanding at the end of the period, the Common Stock issuable upon conversion or exercise of any outstanding securities convertible or exercisable for Common Stock and the exchange ratio or exercise price applicable thereto, and the number of shares of issued stock options and stock options not yet issued but reserved for issuance, if any, all in sufficient detail as to permit any Major Investor to calculate its percentage equity ownership in the Company, and certified by the chief financial officer or chief executive officer of the Company as being true, complete and correct(ii) cash flows;
(d) as soon as practicable, but in any event at least thirty (30) days before prior to the end of each fiscal year, a budget and business plan for the next fiscal year (collectivelyyear, the “Budget”), approved by the Board of Directors and prepared on a quarterly monthly basis, including balance sheets, income statements, statements and statements of cash flow flows for such quarters months and, promptly after as soon as prepared, any other budgets or revised budgets prepared by the Company; and
(e) upon request of a Major Holder, a detailed capitalization table of the Company, including a list of the Company’s outstanding convertible debt securities or other similar exercisable or exchangeable instruments (if any) and the terms thereof. In addition, the Company shall deliver to each Major Holder such other information relating to the financial condition, business, prospects business or corporate affairs of the Company as any such Major Investor Holder may from time to time reasonably request; , including a detailed capitalization table of the Company’s stockholders, optionholders, warrantholders, convertible noteholders and holders of any other equity or convertible-into-equity securities, provided, however, that the Company shall not be obligated under this Subsection 3.1 Section 2.1 to provide information that (i) that the Company reasonably determines it deems in good faith to be a trade secret or similar confidential information (unless covered by an enforceable confidentiality agreement, in form acceptable to the Company) or (ii) the disclosure of which would adversely affect the attorney-client privilege between the Company and its counsel. If, for any period, the Company has any subsidiary whose accounts are consolidated with those of the Company, then in respect of such period the financial statements delivered pursuant to the foregoing sections shall be the consolidated and consolidating financial statements of the Company and all such consolidated subsidiaries. Notwithstanding anything else in this Subsection 3.1 Section 2.1 to the contrary, the Company may cease providing the information set forth in this Subsection 3.1 Section 2.1 during the period starting with the date sixty thirty (6030) days before the Company’s good-faith estimate of the date of filing of a registration statement if it reasonably concludes it must do so to comply with the SEC rules applicable to such registration statement and related offering; provided that the Company’s covenants under this Subsection 3.1 Section 2.1 shall be reinstated at such time as the Company is no longer actively employing its commercially reasonable efforts to cause such registration statement to become effective.
Appears in 2 contracts
Sources: Investors’ Rights Agreement (Lemonade, Inc.), Investors’ Rights Agreement (Lemonade, Inc.)
Delivery of Financial Statements. The Company shall deliver to each Major Investor, provided that the Board of Directors has not reasonably determined that such Major Investor is (or, in the case of a Major Investor that is an individual, is employed by or serves as a consultant to) a competitor of the Company:
(a) as soon as practicable, but in any event within one hundred twenty (120) 120 days after the end of each fiscal year of the Company, : (i) a balance sheet as of the end of such year, (ii) statements of income and of cash flows for such year, and a comparison between (x) the actual amounts as of and for such fiscal year and (y) the comparable amounts for the prior year and as included in the Budget (as defined in Subsection 3.1(e3.1(d)) for such year, with an explanation of any material differences between such amounts and a schedule as to the sources and applications of funds for such year, and (iii) a statement of stockholders’ equity as of the end of such year, all such financial statements audited and certified by independent public accountants of nationally recognized standing selected by the Company and approved by the Board of Directors, including the Preferred DirectorsCompany;
(b) as soon as practicable, but in any event within forty-five (45) 45 days after the end of each of the first three (3) quarters of each fiscal year of the Company, unaudited statements of income and of cash flows for such fiscal quarter, and an unaudited balance sheet and a statement of stockholders’ equity as of the end of such fiscal quarter, all prepared in accordance with GAAP (except that such financial statements may (i) be subject to normal year-end audit adjustments adjustments; and (ii) not contain all notes thereto that may be required in accordance with GAAP);
(c) as soon as practicable, but in any event within forty-five (45) 45 days after the end of each of the first three (3) quarters of each fiscal year of the Company, a statement showing the number of shares of each class and series of capital stock and securities convertible into or exercisable for shares of capital stock outstanding at the end of the period, the Common Stock issuable upon conversion or exercise of any outstanding securities convertible or exercisable for Common Stock and the exchange ratio or exercise price applicable thereto, and the number of shares of issued stock options and stock options not yet issued but reserved for issuance, if any, all in sufficient detail as to permit any the Major Investor Investors to calculate its their respective percentage equity ownership in the Company, and certified by the chief financial officer or chief executive officer of the Company as being true, complete complete, and correct;
(d) as soon as practicable, but in any event thirty (30) days practicable before the end of each fiscal year, a budget and business plan for the next fiscal year (collectively, the “Budget”), approved by the Board of Directors and prepared on a quarterly basisDirectors, including balance sheets, income statements, and statements of cash flow for such quarters months and, promptly after prepared, any other budgets or revised budgets prepared by the Company; and
(e) such other information relating with respect to the financial conditionstatements called for in Subsection 3.1(a) and Subsection 3.1(b), business, prospects or corporate affairs an instrument executed by the chief financial officer and chief executive officer of the Company certifying that such financial statements were prepared in accordance with GAAP consistently applied with prior practice for earlier periods (except as any Major Investor may from time to time reasonably request; provided, however, that otherwise set forth in Subsection 3.1(b) and fairly present the Company shall not be obligated under this Subsection 3.1 to provide information (i) that the Company reasonably determines in good faith to be a trade secret or confidential information (unless covered by an enforceable confidentiality agreement, in form acceptable to the Company) or (ii) the disclosure financial condition of which would adversely affect the attorney-client privilege between the Company and its counselresults of operation for the periods specified therein. If, for any period, the Company has any subsidiary whose accounts are consolidated with those of the Company, then in respect of such period the financial statements delivered pursuant to the foregoing sections shall be the consolidated and consolidating financial statements of the Company and all such consolidated subsidiaries. Notwithstanding anything else in this Subsection 3.1 to the contrary, the Company may cease providing the information set forth in this Subsection 3.1 during the period starting with the date sixty (60) 30 days before the Company’s good-faith estimate of the date of filing of a registration statement if it reasonably concludes it must do so to comply with the SEC rules applicable to such registration statement and related offering; provided that the Company’s covenants under this Subsection 3.1 shall be reinstated at such time as the Company is no longer actively employing its commercially reasonable efforts to cause such registration statement to become effective.
Appears in 2 contracts
Sources: Investors’ Rights Agreement (Allogene Therapeutics, Inc.), Investors' Rights Agreement (Allogene Therapeutics, Inc.)
Delivery of Financial Statements. The Company shall deliver to each Major Investor, provided that the Board of Directors has not reasonably determined that such Major Investor is (or, in the case of a Major Investor that is an individual, is employed by or serves as a consultant to) a competitor of the Company:
(a) as soon as practicable, but in any event within one hundred twenty (120) days after the end of each fiscal year of the Company, (i) a balance sheet as of the end of such year, (ii) statements of income and of cash flows for such year, and a comparison between (x) the actual amounts as of and for such fiscal year and (y) the comparable amounts for the prior year and as included in the Budget (as defined in Subsection 3.1(e)below) for such year, with an explanation of any material differences between such amounts and a schedule as to the sources and applications of funds for such year, and (iii) a statement of stockholders’ equity as of the end of such year, all such financial statements audited and certified by independent public accountants of nationally recognized standing selected by the Company and approved by the Board of Directors, including the Preferred DirectorsCompany;
(b) as soon as practicable, but in any event within forty-five (45) days after the end of each of the first three (3) quarters of each fiscal year of the Company, unaudited statements of income and of cash flows for such fiscal quarter, and an unaudited balance sheet and a statement of stockholders’ equity as of the end of such fiscal quarter, all prepared in accordance with GAAP (except that such financial statements may (i) be subject to normal year-end audit adjustments and (ii) not contain all notes thereto that may be required in accordance with GAAP);
(c) as soon as practicable, but in any event within forty-five (45) days after the end of each of the first three (3) quarters of each fiscal year of the Company, a statement showing the number of shares of each class and series of capital stock and securities convertible into or exercisable for shares of capital stock outstanding at the end of the period, the Common Stock issuable upon conversion or exercise of any outstanding securities convertible or exercisable for Common Stock and the exchange ratio or exercise price applicable thereto, and the number of shares of issued stock options and stock options not yet issued but reserved for issuance, if any, all in sufficient detail as to permit any the Major Investor Investors to calculate its their respective percentage equity ownership in the Company, and certified by the chief financial officer or chief executive officer of the Company as being true, complete complete, and correct;
(d) to the extent the Company in its discretion has prepared them, then, as soon as practicable, but in any event within forty-five (45) days of the end of each month, such monthly financial statements as the Company shall have prepared;
(e) as soon as practicable, but in any event no later than thirty (30) days before prior to the end beginning of each fiscal year, a budget and business plan for the next fiscal year (collectively, the “Budget”), approved by the Board of Directors and prepared on a quarterly monthly basis, including balance sheets, income statements, and statements of cash flow for such quarters months and, promptly after prepared, any other budgets or revised budgets prepared by the Company;
(f) with respect to the financial statements called for in Section 3.1(a) and Section 3.1(b), an instrument executed by the chief financial officer and chief executive officer on behalf of the Company certifying that such financial statements were prepared in accordance with GAAP consistently applied with prior practice for earlier periods (except as otherwise set forth in Section 3.1(b)) and fairly present the financial condition of the Company and its results of operation for the periods specified therein; and
(eg) such other information relating to the financial condition, business, prospects prospects, or corporate affairs of the Company as any Major Investor may from time to time reasonably request; provided, however, that the Company shall not be obligated under this Subsection Section 3.1 to provide information (i) that the Company reasonably determines in good faith to be a trade secret or confidential information (unless covered by an enforceable confidentiality agreement, in form acceptable to the Company) or (ii) the disclosure of which would adversely affect the attorney-client privilege between the Company and its counsel, as determined by the Company in its good faith sole discretion. If, for any period, the Company has any subsidiary whose accounts are consolidated with those of the Company, then in respect of such period the financial statements delivered pursuant to the foregoing sections shall be the consolidated and consolidating financial statements of the Company and all such consolidated subsidiaries. Notwithstanding anything else in this Subsection Section 3.1 to the contrary, the Company may cease providing the information set forth in this Subsection Section 3.1 during the period starting with the date sixty (60) days before the Company’s good-faith estimate of the date of filing of a registration statement if it reasonably concludes it must do so to comply with the SEC rules applicable to such registration statement and related offering; provided that the Company’s covenants under this Subsection Section 3.1 shall be reinstated at such time as the Company is no longer actively employing its commercially reasonable best efforts to cause such registration statement to become effective.
Appears in 2 contracts
Sources: Investors’ Rights Agreement (Livongo Health, Inc.), Investors’ Rights Agreement (Livongo Health, Inc.)
Delivery of Financial Statements. The Company shall deliver to each Major Investor, provided that the Board of Directors has not reasonably determined that such Major Investor is (or, in the case of a Major Investor that is an individual, is employed by or serves as a consultant to) a competitor Competitor of the Company:
(a) as soon as practicable, but in any event within one hundred twenty (120) days after the end of each fiscal year of the Company, Company (i) a balance sheet as of the end of such year, (ii) statements of income and of cash flows for such year, and a comparison between (x) the actual amounts as of and for such fiscal year and (y) the comparable amounts for the prior year and as included in the Budget (as defined in Subsection 3.1(e)) for such year, with an explanation of any material differences between such amounts and a schedule as to the sources and applications of funds for such year, and (iii) a statement of stockholders’ equity as of the end of such year, all . All such financial statements shall, if required by the Board of Directors, be audited and certified by independent public accountants of nationally recognized standing selected by the Company and approved by the Board of Directors, including the Preferred Directors;
(b) as soon as practicable, but in any event within forty-five (45) days after the end of each of the first three (3) quarters of each fiscal year of the Company, unaudited statements of income and of cash flows for such fiscal quarter, and an unaudited balance sheet and a statement of stockholders’ equity as of the end of such fiscal quarter, all prepared in accordance with GAAP (except that such financial statements may (i) be subject to normal year-end audit adjustments adjustments; and (ii) not contain all notes thereto that may be required in accordance with GAAP);
(c) as soon as practicable, but in any event within forty-five (45) days after the end of each of the first three (3) quarters of each fiscal year of the Company, a statement showing the number of shares of each class and series of capital stock and securities convertible into or exercisable for shares of capital stock outstanding at the end of the period, the Common Stock issuable upon conversion or exercise of any outstanding securities convertible or exercisable for Common Stock and the exchange ratio or exercise price applicable thereto, and the number of shares of issued stock options and stock options not yet issued but reserved for issuance, if any, all in sufficient detail as to permit any the Major Investor Investors to calculate its their respective percentage equity ownership in the Company, and certified by the chief financial officer or chief executive officer of the Company as being true, complete complete, and correct;
(d) as soon as practicable, but in any event within thirty (30) days of the end of each month (commencing with the first month that starts after the date of this Agreement), an unaudited income statement and statement of cash flows for such month, and an unaudited balance sheet and statement of stockholders’ equity as of the end of such month, all prepared in accordance with GAAP (except that such financial statements may (i) be subject to normal year-end audit adjustments and (ii) not contain all notes thereto that may be required in accordance with GAAP);
(e) as soon as practicable, but in any event thirty (30) days before the end of each fiscal year, a budget and business plan for the next fiscal year (collectively, the “Budget”), approved by the Board of Directors (including at least one Series A Director) and prepared on a quarterly monthly basis, including balance sheets, income statements, and statements of cash flow for such quarters months and, promptly after prepared, any other budgets or revised budgets prepared by the Company; and
(ef) such other information relating to the financial condition, business, prospects prospects, or corporate affairs of the Company as any Major Investor may from time to time reasonably request; provided, however, that the Company shall not be obligated under this Subsection 3.1 to provide information (i) that the Company reasonably determines in good faith to be a trade secret or confidential information (unless covered by an enforceable confidentiality agreement, in a form acceptable to the Company) ); or (ii) the disclosure of which would adversely affect the attorney-client privilege between the Company and its counsel. If, for any period, the Company has any subsidiary whose accounts are consolidated with those of the Company, then in respect of such period the financial statements delivered pursuant to the foregoing sections shall be the consolidated and consolidating financial statements of the Company and all such consolidated subsidiaries. Notwithstanding anything else in this Subsection 3.1 to the contrary, the Company may cease providing the information set forth in this Subsection 3.1 during the period starting with the date sixty thirty (6030) days before the Company’s good-faith estimate of the date of filing of a registration statement if it reasonably concludes it must do so to comply with the SEC rules applicable to such registration statement and related offering; provided that the Company’s covenants under this Subsection 3.1 shall be reinstated at such time as the Company is no longer actively employing its commercially reasonable efforts to cause such registration statement to become effective.
Appears in 2 contracts
Sources: Investors’ Rights Agreement (Nuvalent, Inc.), Investors’ Rights Agreement (Nuvalent, Inc.)
Delivery of Financial Statements. The Company shall deliver to each Major the Investor, provided that the Board of Directors has not reasonably determined that such Major Investor is (or, in the case of a Major Investor that is an individual, is employed by or serves as a consultant to) a competitor of the Company:
(a) as soon as practicable, but in any event within one hundred twenty ninety (12090) days after the end of each fiscal year of the Company, (i) a balance sheet as of the end of such year, (ii) statements of income and of cash flows for such year, and a comparison between (x) the actual amounts as of and for such fiscal year and (y) the comparable amounts for the prior year and as included in the Budget (as defined in Subsection 3.1(e)) for such year, with an explanation of any material differences between such amounts and a schedule as to the sources and applications of funds for such year, and (iii) a statement of stockholders’ equity as of the end of such year, all such financial statements audited and certified by independent public accountants of regionally recognized standing selected by the Company and approved by the Board of Directors, including the Preferred DirectorsCompany;
(b) as soon as practicable, but in any event within forty-five (45) days after the end of each of the first three (3) quarters of each fiscal year of the Company, unaudited statements of income and of cash flows for such fiscal quarter, and an unaudited balance sheet and a statement of stockholders’ equity as of the end of such fiscal quarter, all prepared in accordance with GAAP (except that such financial statements may (i) be subject to normal year-end audit adjustments and (ii) not contain all notes thereto that may be required in accordance with GAAP);
(c) as soon as practicable, but in any event within forty-five (45) days after the end of each of the first three (3) quarters of each fiscal year of the Company, a statement showing the number of shares of each class and series of capital stock and securities convertible into or exercisable for shares of capital stock outstanding at the end of the period, the Common Stock issuable upon conversion or exercise of any outstanding securities convertible or exercisable for Common Stock and the exchange ratio or exercise price applicable thereto, and the number of shares of issued stock options and stock options not yet issued but reserved for issuance, if any, all in sufficient detail as to permit any Major the Investor to calculate its percentage equity ownership in the Company, and certified by the chief financial officer or chief executive officer of the Company as being true, complete complete, and correct;
(d) upon each request by Investor (each such request shall be deemed a request for a single month’s materials to be provided pursuant to this Section 3.1(d)) as soon as practicable, but in any event within thirty (30) days of the end of each month, an unaudited income statement and statement of cash flows for such month, and an unaudited balance sheet as of the end of such month, all prepared in accordance with GAAP (except that such financial statements may (i) be subject to normal year-end audit adjustments and (ii) not contain all notes thereto that may be required in accordance with GAAP);
(e) as soon as practicable, but in any event thirty (30) days before the end of each fiscal year, a budget and business plan for the next fiscal year (collectively, the “Budget”), approved by the Board of Directors Directors, and prepared on a quarterly monthly basis, including balance sheets, income statements, and statements of cash flow for such quarters months and, promptly after prepared, any other budgets or revised budgets prepared by the Company; and
(ef) such other information relating to the financial condition, business, prospects prospects, or corporate affairs of the Company as any Major the Investor may from time to time reasonably request; provided, however, that the Company shall not be obligated under this Subsection 3.1 to provide information (i) that the Company reasonably determines in good faith to be a trade secret or confidential information (unless covered by an enforceable confidentiality agreement, in form acceptable to the Company) or (ii) the disclosure of which would adversely affect the attorney-client privilege between the Company and its counsel. If, for any period, the Company has any subsidiary whose accounts are consolidated with those of the Company, then in respect of such period the financial statements delivered pursuant to the foregoing sections shall be the consolidated and consolidating financial statements of the Company and all such consolidated subsidiaries. Notwithstanding anything else in this Subsection 3.1 to the contrary, the Company may cease providing the information set forth in this Subsection 3.1 during the period starting with the date sixty thirty (6030) days before the Company’s good-faith estimate of the date of filing of a registration statement if it reasonably concludes it must do so to comply with the SEC rules applicable to such registration statement and related offering; provided that the Company’s covenants under this Subsection 3.1 shall be reinstated at such time as the Company is no longer actively employing its commercially reasonable efforts to cause such registration statement to become effective.
Appears in 2 contracts
Sources: Investors’ Rights Agreement (Backblaze, Inc.), Investors’ Rights Agreement (Backblaze, Inc.)
Delivery of Financial Statements. The Company shall deliver to each Major Investor, provided that the Board of Directors has not reasonably determined that such Major Investor is (or, in the case of a Major Investor that is an individual, is employed by or serves as a consultant to) a competitor of the Company:
(a) as soon as practicable, but in any event within one hundred and twenty (120) days after the end of each fiscal year of the Company, (i) a an audited consolidated balance sheet as of the end of such year, (ii) audited consolidated statements of income and of cash flows for such year, and a comparison between (x1) the actual amounts as of and for such fiscal year and (y2) the comparable amounts for the prior year and as included in the Annual Budget (as defined in Subsection Section 3.1(e)) for such year, with an explanation of any material differences between such amounts and a schedule as to the sources and applications of funds for such year, and (iii) a statement of stockholders’ equity as of the end of such year, all such consolidated financial statements shall be audited and certified by independent public accountants of nationally recognized standing selected by the Company (notwithstanding the foregoing, the requirement that such balance sheet, income statement and approved cash flow be audited or prepared in accordance with GAAP may be waived by the Board including at least one of Directors, including the Preferred Directors);
(b) as soon as practicable, but in any event within forty-five (45) days after the end of each of the first three (3) quarters of each fiscal year of the Company, unaudited consolidated statements of income and of cash flows for such fiscal quarter, and an unaudited consolidated balance sheet and a statement of stockholders’ equity as of the end of such fiscal quarter, all prepared in accordance with GAAP (except that such financial statements may (i) be subject to normal year-end audit adjustments and (ii) not contain all notes thereto that may be required in accordance with GAAP);
(c) as soon as practicable, but in any event within forty-five fifteen (4515) days after the end of each of the first three (3) quarters of each fiscal year of the Companya written request by a Major Investor, a statement showing the number of shares of each class and series of capital stock and securities convertible into or exercisable for shares of capital stock outstanding at the end of the period, the Common Stock issuable upon conversion or exercise of any outstanding securities convertible or exercisable for Common Stock and the exchange ratio or exercise price applicable thereto, and the number of shares of issued stock options and stock options not yet issued but reserved for issuance, if any, all in sufficient detail as to permit any the Major Investor Investors to calculate its their respective percentage equity ownership in the Company, and certified by the chief financial officer or chief executive officer of the Company as being true, complete complete, and correct;
(d) as soon as practicable, but in any event within thirty (30) days of the end of each month, an unaudited consolidated income statement and statement of cash flows for such month, and an unaudited consolidated balance sheet and statement of stockholders’ equity as of the end of such month, all prepared in accordance with GAAP (except that such financial statements may (i) be subject to normal year-end audit adjustments, (ii) not contain all notes thereto that may be required in accordance with GAAP and (iii) the requirement that such consolidated income statement, statement of cash flows and balance sheet be prepared in accordance with GAAP may be waived by the Board including at least one of the Preferred Directors);
(e) as soon as practicable, but in any event thirty (30) days before the end of each fiscal year, a budget and business plan for the next fiscal year (collectively, the “Budget”), approved by the Board of Directors and prepared on a quarterly basis, including balance sheets, income statements, and statements of cash flow for such quarters and, promptly after prepared, any other budgets or revised budgets prepared by the Company; and
(e) such other information relating to the financial condition, business, prospects or corporate affairs of the Company as any Major Investor may from time to time reasonably request; provided, however, that the Company shall not be obligated under this Subsection 3.1 to provide information (i) that the Company reasonably determines in good faith to be a trade secret or confidential information (unless covered by an enforceable confidentiality agreement, in form acceptable to the Company) or (ii) the disclosure of which would adversely affect the attorney-client privilege between the Company and its counsel. If, for any period, the Company has any subsidiary whose accounts are consolidated with those of the Company, then in respect of such period the financial statements delivered pursuant to the foregoing sections shall be the consolidated and consolidating financial statements of the Company and all such consolidated subsidiaries. Notwithstanding anything else in this Subsection 3.1 to the contrary, the Company may cease providing the information set forth in this Subsection 3.1 during the period starting with the date sixty (60) days before the Company’s good-faith estimate of the date of filing of a registration statement if it reasonably concludes it must do so to comply with the SEC rules applicable to such registration statement and related offering; provided that the Company’s covenants under this Subsection 3.1 shall be reinstated at such time as the Company is no longer actively employing its commercially reasonable efforts to cause such registration statement to become effective.the
Appears in 2 contracts
Sources: Investors’ Rights Agreement (Sprinklr, Inc.), Investors’ Rights Agreement (Sprinklr, Inc.)
Delivery of Financial Statements. The Company shall deliver to each Major Investor, provided that the Board of Directors has not reasonably determined that such Major Investor is (or, in the case of a Major Investor that is an individual, is employed by or serves as a consultant to) a competitor of the Company:
(a) as soon as practicable, but in any event within one hundred twenty (120) 120 days after the end of each fiscal year of the Company, (i) a balance sheet as of the end of such year, (ii) statements of income and of cash flows for such year, and a comparison between (x) the actual amounts as of and for such fiscal year and (y) the comparable amounts for the prior year and as included in the Budget (as defined in Subsection 3.1(e)) for such year, with an explanation of any material differences between such amounts and a schedule as to the sources and applications of funds for such year, and (iii) a statement of stockholders’ equity as of the end of such year, all such financial statements audited and certified by independent public accountants of nationally recognized standing selected by the Company and approved by the Board of Directors, including the Preferred DirectorsCompany;
(b) as soon as practicable, but in any event within forty-five (45) 45 days after the end of each of the first three (3) quarters of each fiscal year of the Company, unaudited statements of income and of cash flows for such fiscal quarter, and an unaudited balance sheet and a statement of stockholders’ equity as of the end of such fiscal quarter, all prepared in accordance with GAAP (except that such financial statements may (i) be subject to normal year-end audit adjustments adjustments; and (ii) not contain all notes thereto that may be required in accordance with GAAP);
(c) as soon as practicable, but in any event within forty-five (45) 45 days after the end of each of the first three (3) quarters quarter of each fiscal year of the Company, a statement showing the number of shares of each class and series of capital stock and securities convertible into or exercisable for shares of capital stock outstanding at the end of the period, the Common Stock issuable upon conversion or exercise of any outstanding securities convertible or exercisable for Common Stock and the exchange ratio or exercise price applicable thereto, and the number of shares of issued stock options and stock options not yet issued but reserved for issuance, if any, all in sufficient detail as to permit any the Major Investor Investors to calculate its their respective percentage equity ownership in the Company, and certified by the chief financial officer or chief executive officer of the Company as being true, complete and correct;
(d) as soon as practicable, but in any event thirty within 30 days after the end of each month, an unaudited income statement and statement of cash flows for such month, and an unaudited balance sheet and statement of stockholders’ equity as of the end of such month, all prepared in accordance with GAAP (30except that such financial statements may (i) be subject to normal year-end audit adjustments and (ii) not contain all notes thereto that may be required in accordance with GAAP);
(e) as soon as practicable, but in any event 30 days before the end of each fiscal year, a budget and business plan for the next fiscal year (collectivelyyear, the “Budget”), approved by the Board of Directors and prepared on a quarterly monthly basis, including balance sheets, income statements, statements and statements of cash flow for such quarters months and, promptly after prepared, any other budgets or revised budgets prepared by the Company; and
(ef) such other information relating to the financial condition, business, prospects or corporate affairs of the Company as any Major Investor may from time to time reasonably request; provided, however, that the Company shall not be obligated under this Subsection Section 3.1 to provide information (i) that the Company reasonably determines in good faith to be a trade secret or confidential information (unless covered by an enforceable confidentiality agreement, in a form reasonably acceptable to the Company) or (ii) the disclosure of which would adversely affect the attorney-client privilege between the Company and its counsel. If, for any period, the Company has any subsidiary whose accounts are consolidated with those of the Company, then in respect of such period the financial statements delivered pursuant to the foregoing sections shall be the consolidated and consolidating financial statements of the Company and all such consolidated subsidiaries. Notwithstanding anything else in this Subsection Section 3.1 to the contrary, the Company may cease providing the information set forth in this Subsection Section 3.1 during the period starting with the date sixty (60) 30 days before the Company’s good-faith estimate of the date of filing of a registration statement if it reasonably concludes it must do so to comply with the SEC rules applicable to such registration statement and related offering; provided that the Company’s covenants under this Subsection Section 3.1 shall be reinstated at such time as the Company is no longer actively employing its commercially reasonable efforts to cause such registration statement to become effective.
Appears in 2 contracts
Sources: Investors’ Rights Agreement (Instil Bio, Inc.), Investors’ Rights Agreement (Instil Bio, Inc.)
Delivery of Financial Statements. The (a) Upon the request by a Major Investor (as hereinafter defined), the Company shall deliver to each Major Investor, provided that the Board of Directors has not reasonably determined that such Major Investor is (or, in the case of other than a Major Investor that is an individual, is employed reasonably deemed by or serves as a consultant to) the Company to be a competitor of the Company:, it being understood that in no event shall, Alkeon (as defined below), Coatue (as defined below), Tiger (as defined below), Bessemer (as defined below), Lead Edge (as defined below), Insight (as defined below) and Atomico (as defined below) be deemed competitors of the Company under this Agreement):
(ai) as soon as practicable, but in any event within one hundred twenty (120) 180 days after the end of each fiscal year of the Company, (i) an income statement for such fiscal year, a balance sheet as of the end of such year, (ii) statements of income Company and of cash flows for such year, and a comparison between (x) the actual amounts as of and for such fiscal year and (y) the comparable amounts for the prior year and as included in the Budget (as defined in Subsection 3.1(e)) for such year, with an explanation of any material differences between such amounts and a schedule as to the sources and applications of funds for such year, and (iii) a statement of stockholders’ equity as of the end of such year, a statement of cash flows for such year, such year-end financial reports to be in reasonable detail, prepared in accordance with generally accepted accounting principles (“GAAP”), with all such financial statements audited and certified by an independent public accountants accounting firm of nationally recognized standing selected by the Company Company, and approved by the Board of Directors, including the Preferred Directorsan annual budget;
(bii) as soon as practicable, but in any event within forty-five (45) 30 days after the end of each of the first three (3) quarters of each fiscal year of the Company, an unaudited statements of income and profit or loss statement, a statement of cash flows for such fiscal quarter, quarter and an unaudited balance sheet and a statement of stockholders’ equity as of the end of such fiscal quarter, all prepared in accordance with GAAP (except that such financial statements may (i) be subject to normal year-end audit adjustments and (ii) not contain all notes thereto that may be required in accordance with GAAP);
(ciii) as soon as practicable, but in any event within forty-five (45) 30 days after the end of each of the first three (3) quarters of each fiscal year of the Company, a statement showing the number of shares of each class and series of capital stock and securities convertible into or exercisable for shares of capital stock outstanding at the end of the period, the Common Stock issuable upon conversion or exercise of any outstanding securities convertible or exercisable for Common Stock and the exchange ratio or exercise price applicable thereto, and the number of shares of issued stock options and stock options not yet issued but reserved for issuance, if any, all in sufficient detail as to permit any the Major Investor Investors to calculate its their respective percentage equity ownership in the Company, and certified by the chief financial officer or chief executive officer of the Company as being true, complete and correct;
(div) within 30 days of the end of each month, an unaudited income statement and a statement of cash flows and balance sheet for and as of the end of such month, in reasonable detail;
(v) as soon as practicable, but in any event thirty (30) 30 days before prior to the end of each fiscal year, a budget and business plan for the next fiscal year (collectivelyyear, the “Budget”), approved by the Board of Directors and prepared on a quarterly monthly basis, including balance sheetsan updated list of all stockholders of the Company that includes the name of each stockholder and the number and class of shares held by each stockholder, income statements, and statements of cash flow for such quarters and, promptly after as soon as prepared, any other budgets or revised budgets prepared by the Company;
(vi) with respect to any unaudited financial statements called for in this Section 2.1 other than clause (vii below), an instrument executed by the Chief Financial Officer or Chief Executive Officer of the Company and certifying that such financials were prepared in accordance with GAAP consistently applied with prior practice for earlier periods (with the exception of footnotes that may be required by GAAP) and fairly present the financial condition of the Company and its results of operation for the period specified, subject to year-end audit adjustment, provided that the foregoing shall not restrict the right of the Company to change its accounting principles consistent with GAAP, if the Board determines that it is in the best interest of the Company to do so; and
(evii) such other information relating to the capitalization, financial condition, business, prospects prospects, or corporate affairs of the Company as any Major Investor may from time to time reasonably request; provided, however, that the Company shall not be obligated under this Subsection 3.1 2.1 to provide information (i) that the Company reasonably determines in good faith to be a trade secret or confidential information (unless covered by an enforceable confidentiality agreement, in a form acceptable to the Company) ); or (ii) the disclosure of which would adversely affect the attorney-client privilege between the Company and its counsel. If, for any period, the Company has any subsidiary whose accounts are consolidated with those of the Company, then in respect of such period the financial statements delivered pursuant to the foregoing sections shall be the consolidated and consolidating financial statements of the Company and all such consolidated subsidiaries.
(b) For so long as Insight or ▇▇▇▇▇▇▇▇ remains a Major Investor, promptly, and in any event within 30 days after the end of each quarter of each fiscal year of the Company, the Company shall deliver to Coatue, Tiger, Bessemer, Insight and Atomico the financial and 14-operating data set forth on Annex I hereto, as the same may be amended from time to time by Insight with the prior written consent of the Company (such consent not to be unreasonably withheld, conditioned or delayed). Notwithstanding anything else in this Subsection 3.1 Section 2.1 to the contrary, the Company may cease providing the information set forth in this Subsection 3.1 Section 2.1 during the period starting with the date sixty (60) 60 days before the Company’s good-faith estimate of the date of filing of a registration statement if it reasonably concludes it must do so to comply with the SEC rules applicable to such registration statement and related offering; provided that the Company’s covenants under this Subsection 3.1 Section 2.1 shall be reinstated at such time as the Company is no longer actively employing its commercially reasonable efforts to cause such registration statement to become effective.
Appears in 2 contracts
Sources: Investors’ Rights Agreement (Hinge Health, Inc.), Investors’ Rights Agreement (Hinge Health, Inc.)
Delivery of Financial Statements. The Company shall deliver to each Major Investor, provided that the Board of Directors has not reasonably determined that such Major Investor is (or, in the case of a Major Investor that is an individual, is employed by or serves as a consultant to) a competitor Competitor of the Company:
(a) as soon as practicable, but in any event within one hundred twenty thirty-five (120135) days after the end of each fiscal year of the Company, Company (i) a balance sheet as of the end of such year, (ii) statements of income and of cash flows for such year, and a comparison between (x) the actual amounts as of and for such fiscal year and (y) the comparable amounts for the prior year and as included in the Budget (as defined in Subsection 3.1(e)) for such year, with an explanation of any material differences between such amounts and a schedule as to the sources and applications of funds for such year, and (iii) a statement of stockholders’ equity as of the end of such year, all such financial statements audited and certified by independent public accountants of nationally or regionally recognized standing selected by the Company and approved by the Board of Directors, including the Preferred DirectorsCompany;
(b) as soon as practicable, but in any event within forty-five thirty (4530) days after the end of each of the first three (3) quarters of each fiscal year of the Company, unaudited statements of income and of cash flows for such fiscal quarter, and a comparison between (x) the actual amounts as of and for such fiscal quarter and (y) the comparable amounts as included in the Budget (as defined in Subsection 3.1(e)) for such quarter, and an unaudited balance sheet and a statement of stockholders’ equity as of the end of such fiscal quarter, all prepared in accordance with GAAP (except that such financial statements may (i) be subject to normal year-end audit adjustments adjustments; and (ii) not contain all notes thereto that may be required in accordance with GAAP);
(c) as soon as practicable, but in any event within forty-five thirty (4530) days after the end of each of the first three (3) quarters quarter of each fiscal year of the Company, a statement showing the number of shares of each class and series of capital stock and securities convertible into or exercisable for shares of capital stock outstanding at the end of the period, the Common Stock issuable upon conversion or exercise of any outstanding securities convertible or exercisable for Common Stock and the exchange ratio or exercise price applicable thereto, and the number of shares of issued stock options and stock options not yet issued but reserved for issuance, if any, all in sufficient detail as to permit any the Major Investor Investors to calculate its their respective percentage equity ownership in the Company, and certified by the chief financial officer or chief executive officer of the Company as being true, complete complete, and correct; provided, however, that no delivery needs to be made under this Section 3.1(c) for as long as the Major Investor has access to the Company’s capitalization table on Carta or another similar electronic capitalization table management platform that shows the information set forth in this Section 3.1(c);
(d) as soon as practicable, but in any event within thirty (30) days of the end of each month, an unaudited income statement and statement of cash flows for such month, and a comparison between (x) the actual amounts as of and for such month and (y) the comparable amounts as included in the Budget (as defined in Subsection 3.1(e)) for such month, and an unaudited balance sheet and statement of stockholders’ equity as of the end of such month, all prepared in accordance with GAAP (except that such financial statements may (i) be subject to normal year-end audit adjustments and (ii) not contain all notes thereto that may be required in accordance with GAAP); and
(e) as soon as practicable, but in any event thirty (30) days before the end of each fiscal year, a budget and business plan for the next fiscal year (collectively, the “Budget”), approved by the Board of Directors (including all of the Preferred Directors) and prepared on a quarterly monthly basis, including balance sheets, income statements, and statements of cash flow for such quarters months and, promptly after prepared, any other budgets or revised budgets prepared by the Company; and
(ef) as soon as practicable, but in any event within twenty-five (25) days after the end of each quarter of each fiscal year of the Company, such other information relating to the financial condition, business, prospects or scientific developments, prospects, and corporate affairs of the Company as any Major Investor may from time to time reasonably request; provided, however, that the Company shall not be obligated under this Subsection 3.1 to provide information (i) that the Company reasonably determines in good faith to be a trade secret or confidential information (unless covered by an enforceable confidentiality agreement, in a form acceptable to the Company) ); or (ii) the disclosure of which would adversely affect the attorney-client privilege between the Company and its counsel. If, for any period, the Company has any subsidiary whose accounts are consolidated with those of the Company, then in respect of such period the financial statements delivered pursuant to the foregoing sections shall be the consolidated and consolidating financial statements of the Company and all such consolidated subsidiaries. Notwithstanding anything else in this Subsection 3.1 to the contrary, the Company may cease providing the information set forth in this Subsection 3.1 during the period starting with the date sixty forty-five (6045) days before the Company’s good-faith estimate of the date of filing of a registration statement if it reasonably concludes it must do so to comply with the SEC rules applicable to such registration statement and related offering; provided that the Company’s covenants under this Subsection 3.1 shall be reinstated at such time as the Company is no longer actively employing its commercially reasonable efforts to cause such registration statement to become effective.
Appears in 2 contracts
Sources: Investors’ Rights Agreement (Immuneering Corp), Investors’ Rights Agreement (Immuneering Corp)
Delivery of Financial Statements. The Company shall deliver to each Major Investor, provided that the Board of Directors has not reasonably determined that such Major Investor is (or, in the case of a Major Investor that is an individual, is employed by or serves as a consultant to) a competitor of the Company:
(a) as soon as practicable, but in any event within one hundred twenty (120) 180 days after the end of each fiscal year of the Company, Company (i) a balance sheet as of the end of such year, (ii) statements of income and of cash flows for such year, and a comparison between (x) the actual amounts as of and for such fiscal year and (y) the comparable amounts for the prior year and as included in the Budget (as defined in Subsection 3.1(e)) for such year, with an explanation of any material differences between such amounts and a schedule as to the sources and applications of funds for such year, and (iii) a statement of stockholders’ equity as of the end of such year, all such financial statements audited and certified by independent public accountants of nationally recognized standing selected by the Company and approved by the Board of Directors, including the Preferred DirectorsCompany;
(b) as soon as practicable, but in any event within forty-five (45) days after the end of each of the first three (3) quarters of each fiscal year of the Company, unaudited statements of income and of cash flows for such fiscal quarter, and an unaudited balance sheet sheet, a statement of cash flows, and a statement of stockholders’ equity as of the end of such fiscal quarter, all prepared in accordance with GAAP (except that such financial statements may (i) be subject to normal year-year- end audit adjustments adjustments; and (ii) not contain all notes thereto that may be required in accordance with GAAP);
(c) as soon as practicable, but in any event within forty-five (45) days after the end of each of the first three (3) quarters of each fiscal year of the Company, a statement showing the number of shares of each class and series of capital stock and securities convertible into or exercisable for shares of capital stock outstanding at the end of the period, the Common Stock issuable upon conversion or exercise of any outstanding securities convertible or exercisable for Common Stock and the exchange ratio or exercise price applicable thereto, and the number of shares of issued stock options and stock options not yet issued but reserved for issuance, if any, all in sufficient detail as to permit any the Major Investor Investors to calculate its their respective percentage equity ownership in the Company, and certified by the chief financial officer or chief executive officer of the Company as being true, complete complete, and correct;
(d) as soon as practicable, but in any event within thirty (30) days of the end of each month, an unaudited income statement for such month, a statement of cash flows, and an unaudited balance sheet and statement of stockholders’ equity as of the end of such month, all prepared in accordance with GAAP (except that such financial statements may (i) be subject to normal year-end audit adjustments and (ii) not contain all notes thereto that may be required in accordance with GAAP);
(e) as soon as practicable, but in any event thirty (30) days before the end of each fiscal year, a budget and business plan for the next fiscal year (collectively, the “Budget”), approved by the Board of Directors and including at least four of the Preferred Directors, prepared on a quarterly monthly basis, including balance sheets, income statements, and statements of cash flow for such quarters months and, promptly after prepared, any other budgets or revised budgets prepared by the Company;
(f) with respect to the financial statements called for in Subsection 3.1(a), Subsection 3.1(b) and Subsection 3.1(d), an instrument executed by the chief financial officer and chief executive officer of the Company certifying that such financial statements were prepared in accordance with GAAP consistently applied with prior practice for earlier periods (except as otherwise set forth in Subsection 3.1(b) and Subsection 3.1(d)) and fairly present the financial condition of the Company and its results of operation for the periods specified therein; and
(eg) such other information relating to the financial condition, business, prospects prospects, or corporate affairs of the Company as any Major Investor may from time to time reasonably request; provided, however, that the Company shall not be obligated under this Subsection 3.1 to provide information (i) that the Company Board of Directors reasonably determines in good faith upon advice of outside counsel to be a trade secret or confidential information (unless covered by an enforceable confidentiality agreement, in a form acceptable to the Company) ); or (ii) the disclosure of which would adversely affect the attorney-client privilege between the Company and its counsel, as determined by the Board of Directors in good faith upon advice of outside counsel. If, for any period, the Company has any subsidiary whose accounts are consolidated with those of the Company, then in respect of such period the financial statements delivered pursuant to the foregoing sections shall be the consolidated and consolidating financial statements of the Company and all such consolidated subsidiaries. Notwithstanding anything else in this Subsection 3.1 to the contrary, the Company may cease providing the information set forth in this Subsection 3.1 during the period starting with the date sixty thirty (6030) days before the Company’s good-faith estimate of the date of filing of a registration statement if it reasonably concludes it must do so to comply with the SEC rules applicable to such registration statement and related offering; provided that the Company’s covenants under this Subsection 3.1 shall be reinstated at such time as the Company is no longer actively employing its commercially reasonable efforts to cause such registration statement to become effective.
Appears in 2 contracts
Sources: Investors’ Rights Agreement (Tyra Biosciences, Inc.), Investors’ Rights Agreement (Tyra Biosciences, Inc.)
Delivery of Financial Statements. The Company shall deliver to each Major Investor, provided that the Board of Directors has not reasonably determined that such Major Investor is (or, in the case of a Major Investor that is an individual, is employed by or serves as a consultant to) a competitor Competitor of the Company:
(a) as soon as practicable, but in any event within one hundred twenty (120) 180 days after the end of each fiscal year of the Company, Company (i) a balance sheet as of the end of such year, (ii) statements of income and of cash flows for such year, and a comparison between (x) the actual amounts as of and for such fiscal year and (y) the comparable amounts for the prior year and as included in the Budget (as defined in Subsection 3.1(e)) for such year, with an explanation of any material differences between such amounts and a schedule as to the sources and applications of funds for such year, and (iii) a statement of stockholders’ equity as of the end of such year, all such financial statements audited and certified by independent public accountants of nationally recognized standing selected by the Company and approved by the Board of Directors, including the Preferred DirectorsCompany;
(b) as soon as practicable, but in any event within forty-five (45) 45 days after the end of each of the first three (3) quarters of each fiscal year of the Company and within 90 days after the end of the fourth quarter of each fiscal year of the Company, unaudited statements of income and of cash flows for such fiscal quarter, and an unaudited balance sheet and a statement of stockholders’ equity as of the end of such fiscal quarter, all prepared in accordance with GAAP (except that such financial statements may (i) be subject to normal year-end audit adjustments adjustments; and (ii) not contain all notes thereto that may be required in accordance with GAAP);
(c) as soon as practicable, but in any event within forty-five (45) 45 days after the end of each of the first three (3) quarters quarter of each fiscal year of the Company, a statement showing the number of shares of each class and series of capital stock and securities convertible into or exercisable for shares of capital stock outstanding at the end of the period, the Common Stock issuable upon conversion or exercise of any outstanding securities convertible or exercisable for Common Stock and the exchange ratio or exercise price applicable thereto, and the number of shares of issued stock options and stock options not yet issued but reserved for issuance, if any, all in sufficient detail as to permit any the Major Investor Investors to calculate its their respective percentage equity ownership in the Company, and certified by the chief financial officer or chief executive officer of the Company as being true, complete complete, and correct;
(d) as soon as practicable, but in any event thirty within 30 days of the end of each month, an unaudited income statement and statement of cash flows for such month, and an unaudited balance sheet and statement of stockholders’ equity as of the end of such month, all prepared in accordance with GAAP (30except that such financial statements may (i) be subject to normal year-end audit adjustments and (ii) not contain all notes thereto that may be required in accordance with GAAP); and
(e) as soon as practicable, but in any event 30 days before the end of each fiscal year, a budget and business plan for the next fiscal year (collectivelyyear, the “Budget”), approved by the Board of Directors and prepared on a quarterly monthly basis, including balance sheets, income statements, and statements of cash flow for such quarters months and, promptly after prepared, any other budgets or revised budgets prepared by the Company; and
(e) such other information relating to the financial condition, business, prospects or corporate affairs of the Company as any Major Investor may from time to time reasonably request; provided, however, that the Company shall not be obligated under this Subsection 3.1 to provide information (i) that the Company reasonably determines in good faith to be a trade secret or confidential information (unless covered by an enforceable confidentiality agreement, in form acceptable to the Company) or (ii) the disclosure of which would adversely affect the attorney-client privilege between the Company and its counsel. If, for any period, the Company has any subsidiary whose accounts are consolidated with those of the Company, then in respect of such period the financial statements delivered pursuant to the foregoing sections shall be the consolidated and consolidating financial statements of the Company and all such consolidated subsidiaries. Notwithstanding anything else in this Subsection Section 3.1 to the contrary, the Company may cease providing the information set forth in this Subsection Section 3.1 during the period starting with the date sixty (60) 60 days before the Company’s good-faith estimate of the date of filing of a registration statement if it reasonably concludes it must do so to comply with the SEC rules applicable to such registration statement and related offering; provided that the Company’s covenants under this Subsection Section 3.1 shall be reinstated at such time as the Company is no longer actively employing its commercially reasonable efforts to cause such registration statement to become effective.
Appears in 2 contracts
Sources: Investors’ Rights Agreement (Artiva Biotherapeutics, Inc.), Investors’ Rights Agreement (Artiva Biotherapeutics, Inc.)
Delivery of Financial Statements. The For so long as an aggregate of at least 7,000,000 shares of Registrable Securities remain outstanding (subject to adjustment for stock splits, dividends and the like with respect to the Preferred Stock), the Company shall deliver to each Major Investor, provided that the Board of Directors has not reasonably determined that such Major Investor is (or, in the case of a Major Investor that is an individual, is employed by or serves as a consultant to) a competitor of the Company:
(a) as soon as practicable, but in any event within one hundred twenty (120) days after the end of each fiscal year of the Company, Company (i) a balance sheet as of the end of such year, (ii) statements of income and of cash flows for such year, and a comparison between (x) the actual amounts as of and for such fiscal year and (y) the comparable amounts for the prior year and as included in the Budget (as defined in Subsection 3.1(e)) for such year, with an explanation of any material differences between such amounts and a schedule as to the sources and applications of funds for such year, and (iii) a statement of stockholders’ equity as of the end of such year, all such financial statements audited and certified by independent public accountants of recognized standing selected by the Company and approved by the Board of Directors, including Directors of the Preferred DirectorsCompany (or the Audit Committee thereof);
(b) as soon as practicable, but in any event within forty-five thirty (4530) days after the end of each of the first three (3) quarters of each fiscal year of the Company, unaudited statements of income and of cash flows for such fiscal quarter, and an unaudited balance sheet and a statement of stockholders’ equity as of the end of such fiscal quarter, all prepared in accordance with GAAP (except that such financial statements may (i) be subject to normal year-end audit adjustments and (ii) not contain all notes thereto that may be required in accordance with GAAP);
(c) as soon as practicable, but in any event within forty-five (45) days after the end of each of the first three (3) quarters of each fiscal year of the Company, a statement showing (i) all debt holders and (ii) the number of shares of each class and series of capital stock and securities convertible into or exercisable for shares of capital stock outstanding at the end of the period, the Common Stock issuable upon conversion or exercise of any outstanding securities convertible or exercisable for Common Stock and the exchange ratio or exercise price applicable thereto, and the number of shares of issued stock options and stock options not yet issued but reserved for issuance, if any, all in sufficient detail as to permit any the Major Investor Investors to calculate its their respective percentage equity ownership in the Company;
(c) as soon as practicable, but in any event within thirty (30) days after the end of each of the first three (3) quarters of each fiscal year of the Company, (i) unaudited statements of income and cash flows for such fiscal quarter, and certified by a comparison between (x) the chief financial officer or chief executive officer actual amounts as of and for such fiscal quarter and (y) the comparable amounts for the prior quarter and as included in the Budget for such quarter, with an explanation of any material differences between such amounts and a schedule as to the sources and applications of funds for such quarter, and (ii) an unaudited balance sheet as of the Company as being trueend of such fiscal quarter, complete all prepared in accordance with GAAP (except that such financial statements may (a) be subject to normal year-end audit adjustments; and correct(b) not contain all notes thereto that may be required in accordance with GAAP);
(d) as soon as practicable, but in any event within thirty (30) days of the end of each month, an unaudited income statement for such month, and an unaudited balance sheet as of the end of such month, all prepared in accordance with GAAP (except that such financial statements may (i) be subject to normal year-end audit adjustments and (ii) not contain all notes thereto that may be required in accordance with GAAP);
(e) as soon as practicable, but in any event thirty (30) days before the end of each fiscal year, a budget and business plan for the next fiscal year (collectively, the “Budget”), approved by the Board of Directors and prepared on a quarterly monthly basis, including balance sheets, income statements, and statements of cash flow for such quarters months and, promptly after prepared, any other budgets or revised budgets prepared by the Company;
(f) with respect to the financial statements called for in Subsection 3.1(c) and Subsection 3.1(d), an instrument executed by the chief financial officer and chief executive officer of the Company certifying that such financial statements were prepared in accordance with GAAP consistently applied with prior practice for earlier periods (except as otherwise set forth in Subsection 3.1(c) and Subsection 3.1(d)) and fairly present the financial condition of the Company and its results of operation for the periods specified therein; and
(eg) such other information relating to the financial condition, business, prospects prospects, or corporate affairs of the Company as any Major Investor may from time to time reasonably request; provided, however, that the Company shall not be obligated under this Subsection 3.1 to provide information (i) that the Company reasonably determines in good faith to be a trade secret or confidential information (unless covered by an enforceable confidentiality agreement, in a form acceptable to the Company) ); or (ii) the disclosure of which would adversely affect the attorney-client privilege between the Company and its counsel. If, for any period, the Company has any subsidiary whose accounts are consolidated with those of the Company, then in respect of such period the financial statements delivered pursuant to the foregoing sections shall be the consolidated and consolidating financial statements of the Company and all such consolidated subsidiaries. Notwithstanding anything else in this Subsection 3.1 to the contrary, the Company may cease providing the information set forth in this Subsection 3.1 during the period starting with the date sixty (60) days before the Company’s good-faith estimate of the date of filing of a registration statement if it reasonably concludes it must do so to comply with the SEC rules applicable to such registration statement and related offering; provided that the Company’s covenants under this Subsection 3.1 shall be reinstated at such time as the Company is no longer actively employing its commercially reasonable efforts to cause such registration statement to become effective.
Appears in 2 contracts
Sources: Investors’ Rights Agreement (Homology Medicines, Inc.), Investors’ Rights Agreement (Homology Medicines, Inc.)
Delivery of Financial Statements. The Company shall deliver to each Major InvestorInvestor (provided, provided that the Board of Directors has not reasonably determined that such Major Investor is (or, in the case of a Major Investor that is an individual, is employed by or serves as a consultant to) a competitor of the Company:; provided, further, that none of NEA, Revolution, any ▇. ▇▇▇▇ Price Investor, any ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Investor or any ▇▇▇▇▇▇▇▇▇ Investor shall be deemed a competitor for purposes of this Agreement solely due to an investment in a portfolio company that is a competitor of the Company; and provided, further, that Google LLC shall not be deemed a competitor of the Company):
(a) as soon as practicable, but in any event within one hundred twenty ninety (12090) days after the end of each fiscal year of the Company, (i) a balance sheet as of the end of such year, (ii) statements of income and of cash flows for such year, and a comparison between (x) the actual amounts as of and for such fiscal year and (y) the comparable amounts for the prior year and as included in the Budget (as defined in Subsection 3.1(e)) for such year, with an explanation of any material differences between such amounts and a schedule as to the sources and applications of funds for such year, and (iii) a statement of stockholders’ equity as of the end of such year, all prepared in accordance with GAAP (except that such financial statements may not contain all notes thereto that may be required in accordance with GAAP), which financial statements shall be audited and certified by independent public accountants of nationally recognized standing selected by the Company and approved by the Board of Directors, including the Preferred DirectorsCompany;
(b) as soon as practicable, but in any event within forty-five thirty (4530) days after the end of each of the first three (3) quarters quarter of each fiscal year of the Company, unaudited statements of income and of cash flows for such fiscal quarter, quarter and an unaudited balance sheet and a statement of stockholders’ equity as of the end of such fiscal quarter, all prepared in accordance with GAAP (except that such financial statements may (i) be subject to normal year-end audit adjustments and (ii) not contain all notes thereto that may be required in accordance with GAAP);
(c) as soon as practicable, but in any event within forty-five thirty (4530) days after the end of each of the first three (3) quarters quarter of each fiscal year of the Company, a statement showing the number of shares of each class and series of capital stock and securities convertible into or exercisable for shares of capital stock outstanding at the end of the period, the Common Stock issuable upon conversion or exercise of any outstanding securities convertible or exercisable for Common Stock and the exchange ratio or exercise price applicable thereto, and the number of shares of issued stock options and stock options not yet issued but reserved for issuance, if any, all in sufficient detail as to permit any Major Investor to calculate its percentage equity ownership in the Company, and certified by the chief financial officer or chief executive officer detailed capitalization table of the Company as being true, complete and correct;
(d) as soon as practicable, but in any event thirty (30) days before of the end of each such fiscal year, a budget and business plan for the next fiscal year (collectively, the “Budget”), approved by the Board of Directors and prepared on a quarterly basis, including balance sheets, income statements, and statements of cash flow for such quarters and, promptly after prepared, any other budgets or revised budgets prepared by the Companyquarter; and
(ed) such other information relating to the financial condition, business, prospects or corporate affairs of the Company as any Major Investor may from time to time reasonably request; provided, however, provided that the Company shall not be obligated under this Subsection 3.1 Section 3.1(c) to provide information (i) that the Company reasonably determines in good faith to be a trade secret or confidential information (unless covered by an enforceable confidentiality agreement, in a form reasonably acceptable to the Company) ); or (ii) the disclosure of which would adversely affect the attorney-client privilege between the Company and its counsel. If, for any period, the Company has any subsidiary whose accounts are consolidated with those of the Company, then in respect of such period the financial statements delivered pursuant to the foregoing sections shall be the consolidated and consolidating financial statements of the Company and all such consolidated subsidiaries. Notwithstanding anything else in this Subsection Section 3.1 to the contrary, the Company may cease providing the information set forth in this Subsection Section 3.1 during the period starting with the date sixty (60) days before the Company’s good-faith estimate of the date of filing of a registration statement if it reasonably concludes it must do so to comply with the SEC rules applicable to such registration statement and related offering; provided provided, that the Company’s covenants under this Subsection Section 3.1 shall be reinstated at such time as the Company is no longer actively employing its commercially reasonable efforts to cause such registration statement to become effective. The Company shall promptly and accurately respond, and shall use its commercially reasonable efforts to cause its transfer agent to promptly respond, to reasonable requests for information made on behalf of any ▇. ▇▇▇▇ Price Investor or any ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Investor relating to (i) accounting or securities law matters required in connection with its audit or (ii) the actual holdings of the ▇. ▇▇▇▇ Price Investor or any ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Investor, respectively, including in relation to the total outstanding shares; provided, however, that the Company shall not be obligated to provide any such information that could reasonably result in a violation of applicable law or conflict with a confidentiality obligation of the Company. On or immediately prior to the effectiveness of the IPO, the Company shall provide each ▇. ▇▇▇▇ Price Investor and each ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Investor written confirmation of its equity holdings in the Company (on an as-converted basis). Notwithstanding anything to the contrary contained in this Agreement, the Company and the ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Investors acknowledge and agree that, absent all Required Approvals, the ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Investors shall not request or obtain and Company shall not grant: (i) control (as defined in 31 C.F.R. § 800.208) of the Company; (ii) access to any material nonpublic technical information (as defined in 31 C.F.R. § 800.232) in the possession of the Company (which shall not include financial information about the Company), including access to any information not already in the public domain that is necessary to design, fabricate, develop, test, produce, or manufacture Company products or services, including processes, techniques, or methods; or (iii) any involvement (other than through voting of shares) in substantive decision making of the Company regarding the use, development, acquisition, or release of any of the Company’s critical technologies (as defined in 31 C.F.R. § 800.215).
Appears in 2 contracts
Sources: Investors’ Rights Agreement (Tempus Labs, Inc.), Investors’ Rights Agreement (Tempus Labs, Inc.)
Delivery of Financial Statements. The Company shall deliver to each Major Investor, provided that the Board of Directors has not reasonably determined that such Major Investor is (or, in the case of a Major Investor that is an individual, is employed by or serves as a consultant to) a competitor Competitor of the Company:
(a) as soon as practicable, but in any event within one hundred twenty (120) days after the end of each fiscal year of the Company, Company (i) a balance sheet as of the end of such year, (ii) statements of income and of cash flows for such year, and a comparison between (x) the actual amounts as of and for such fiscal year and (y) the comparable amounts for the prior year and as included in the Budget (as defined in Subsection 3.1(e)) for such year, with an explanation of any material differences between such amounts and a schedule as to the sources and applications of funds for such year, and (iii) a statement of stockholders’ equity as of the end of such year, all in each case prepared in accordance with GAAP and audited by an internationally recognized accounting firm, and (iv) if a Budget (as defined below) for such fiscal year was prepared and delivered to Major Investors, a comparison between such Budget and the financial statements audited described in the preceding subsections (i), (ii) and certified by independent public accountants selected by the Company and approved by the Board of Directors, including the Preferred Directors;(iii); and
(b) as soon as practicable, but in any event within forty-five (45) days after the end of each of the first three (3) quarters of each fiscal year of the Company, unaudited statements of income and of cash flows for such fiscal quarter, and an unaudited balance sheet and a statement of stockholders’ equity as of the end of such fiscal quarter, all prepared in accordance with GAAP (except that such financial statements may (i) be subject to normal year-end audit adjustments adjustments; and (ii) not contain all notes thereto that may be required in accordance with GAAP);
(c) as soon as practicable, but in any event within forty-five (45) days after the end of each of the first three (3) quarters of each fiscal year of the Company, a statement showing the number of shares of each class and series of capital stock and securities convertible into or exercisable for shares of capital stock outstanding at the end of the period, the Common Stock issuable upon conversion or exercise of any outstanding securities convertible or exercisable for Common Stock and the exchange ratio or exercise price applicable thereto, and the number of shares of issued stock options and stock options not yet issued but reserved for issuance, if any, all in sufficient detail as to permit any the Major Investor Investors to calculate its their respective percentage equity ownership in the Company, and certified by the chief financial officer or chief executive officer of the Company as being true, complete complete, and correct;
(d) as soon as practicable, but in any event within thirty (30) days of the end of each month, an unaudited income statement for such month, and an unaudited balance sheet as of the end of such month, all prepared in accordance with GAAP (except that such financial statements may (i) be subject to normal year-end audit adjustments and (ii) not contain all notes thereto that may be required in accordance with GAAP);
(e) as soon as practicable, but in any event thirty (30) days before the end of each fiscal year, a budget and business plan for the next fiscal year (collectively, the “Budget”), approved by the Board of Directors and prepared on a quarterly monthly basis, including balance sheets, income statements, and statements of cash flow for such quarters months and, promptly after prepared, any other budgets or revised budgets prepared by the Company; and
(ef) with reasonable promptness, such other information relating to and data regarding the Company’s financial condition, business, prospects business or corporate affairs of the Company operations as any Major such Investor may from time to time reasonably request; provided, however, that the Company shall not be obligated under this Subsection 3.1 to provide information (i) that the Company reasonably determines in good faith to be a trade secret or confidential information (unless covered by an enforceable confidentiality agreement, in a form acceptable to the Company) ); or (ii) the disclosure of which would adversely affect the attorney-client privilege between the Company and its counsel. If, for any period, the Company has any subsidiary whose accounts are consolidated with those of the Company, then in respect of such period the financial statements delivered pursuant to the foregoing sections shall be the consolidated and consolidating financial statements of the Company and all such consolidated subsidiaries. Notwithstanding anything else in this Subsection 3.1 to the contrary, the Company may cease providing the information set forth in this Subsection 3.1 during the period starting with the date sixty thirty (6030) days before the Company’s good-faith estimate of the date of filing of a registration statement if it reasonably concludes it must do so to comply with the SEC rules applicable to such registration statement and related offering; provided that the Company’s covenants under this Subsection 3.1 shall be reinstated at such time as the Company is no longer actively employing its commercially reasonable efforts to cause such registration statement to become effective.
Appears in 2 contracts
Sources: Investors’ Rights Agreement (Graphite Bio, Inc.), Investors’ Rights Agreement (Graphite Bio, Inc.)
Delivery of Financial Statements. The Company shall deliver to each Major Investor, provided that the Board of Directors has not reasonably determined that such Major Investor is (or, in the case of a Major Investor that is an individual, is employed by or serves as a consultant to) a competitor Competitor of the Company:
(a) as soon as practicable, but in any event within one hundred twenty (120) days after the end of each fiscal year of the Company, Company (i) a balance sheet as of the end of such year, (ii) statements of income and of cash flows for such year, and a comparison between (x) the actual amounts as of and for such fiscal year and (y) the comparable amounts for the prior year and as included in the Budget (as defined in Subsection 3.1(e)) for such year, with an explanation of any material differences between such amounts and a schedule as to the sources and applications of funds for such year, and (iii) a statement of stockholders’ equity as of the end of such year, all such financial statements audited and certified by independent public accountants selected by the Company and approved by the Board of Directors, including the Preferred DirectorsBoard;
(b) as soon as practicable, but in any event within forty-forty five (45) days after the end of each of the first three (3) quarters of each fiscal year of the Company, unaudited statements of income and of cash flows for such fiscal quarter, and an unaudited balance sheet and a statement of stockholders’ equity as of the end of such fiscal quarter, all prepared in accordance with GAAP (except that such financial statements may (i) be subject to normal year-year- end audit adjustments adjustments; and (ii) not contain all notes thereto that may be required in accordance with GAAP);
(c) as soon as practicable, but in any event within forty-five (45) days after the end of each of the first three (3) quarters of each fiscal year of the Company, a statement showing the number of shares of each class and series of capital stock and securities convertible into or exercisable for shares of capital stock outstanding at the end of the period, the Common Stock issuable upon conversion or exercise of any outstanding securities convertible or exercisable for Common Stock and the exchange ratio or exercise price applicable thereto, and the number of shares of issued stock options and stock options not yet issued but reserved for issuance, if any, all in sufficient detail as to permit any the Major Investor Investors to calculate its their respective percentage equity ownership in the Company, and certified by the chief financial officer or chief executive officer of the Company as being true, complete complete, and correct;
(d) as soon as practicable, but in any event within thirty (30) days of the end of each month, an unaudited income statement and statement of cash flows for such month, and an unaudited balance sheet and statement of stockholders’ equity as of the end of such month, all prepared in accordance with GAAP (except that such financial statements may (i) be subject to normal year-end audit adjustments and (ii) not contain all notes thereto that may be required in accordance with GAAP);
(e) as soon as practicable, but in any event thirty (30) days before the end of each fiscal year, a budget and business plan for the next fiscal year (collectively, the “Budget”), approved by the Board of Directors and prepared on a quarterly monthly basis, including balance sheets, income statements, and statements of cash flow for such quarters months and, promptly after prepared, any other budgets or revised budgets prepared by the Company; and;
(ef) such other information relating to the financial condition, business, prospects prospects, or corporate affairs of the Company as any Major Investor may from time to time reasonably request; provided, however, that the Company shall not be obligated under this Subsection 3.1 to provide information (i) that the Company reasonably determines in good faith to be a trade secret or confidential information (unless covered by an enforceable confidentiality agreement, in a form acceptable to the Company) ); or (ii) the disclosure of which would adversely affect the attorney-client privilege between the Company and its counsel. If, for any period, the Company has any subsidiary whose accounts are consolidated with those of the Company, then in respect of such period the financial statements delivered pursuant to the foregoing sections shall be the consolidated and consolidating financial statements of the Company and all such consolidated subsidiaries. Notwithstanding anything else in this Subsection 3.1 to the contrary, the Company may cease providing the information set forth in this Subsection 3.1 during the period starting with the date sixty (60) days before the Company’s good-faith estimate of the date of filing of a registration statement if it reasonably concludes it must do so to comply with the SEC rules applicable to such registration statement and related offering; provided that the Company’s covenants under this Subsection 3.1 shall be reinstated at such time as the Company is no longer actively employing its commercially reasonable efforts to cause such registration statement to become effective.
Appears in 1 contract
Delivery of Financial Statements. The Company shall deliver to each Major Investor, provided that the Board of Directors has not reasonably determined that such Major Investor is (or, in the case of a Major Investor that is an individual, is employed by or serves as a consultant to) a competitor Competitor of the Company:
(a) as soon as practicable, but in any event within one hundred twenty (120) 90 days after the end of each fiscal year of the CompanyCompany (which may be extended to up to 9 months from the end of the fiscal year of the Company upon approval of the Board of Directors, including the approval of the majority of the Series AA Directors) (i) a balance sheet as of the end of such year, (ii) statements of income and of cash flows for such year, and a comparison between (x) the actual amounts as of and for such fiscal year and (y) the comparable amounts for the prior year and as included in the Budget (as defined in Subsection 3.1(e)) for such year, with an explanation of any material differences between such amounts and a schedule as to the sources and applications of funds for such year, and (iii) a statement of stockholders’ equity as of the end of such year, all such financial statements audited and certified by independent public accountants of regionally recognized standing selected by the Company and approved by the Board of Directors, including the Preferred DirectorsCompany;
(b) as soon as practicable, but in any event within forty-five (45) 45 days after the end of each of the first three (3) quarters quarter of each fiscal year of the Company, unaudited statements of income and of cash flows for such fiscal quarter, and an unaudited balance sheet and a statement of stockholders’ equity as of the end of such fiscal quarter, all prepared in accordance with GAAP (except that such financial statements may (i) be subject to normal year-end audit adjustments adjustments; and (ii) not contain all notes thereto that may be required in accordance with GAAP);
(c) as soon as practicable, but in any event within forty-five (45) 45 days after the end of each of the first three (3) quarters of each fiscal year of the Company, a statement showing the number of shares of each class and series of capital stock and securities convertible into or exercisable for shares of capital stock outstanding at the end of the period, the Common Stock issuable upon conversion or exercise of any outstanding securities convertible or exercisable for Common Stock and the exchange ratio or exercise price applicable thereto, and the number of shares of issued stock options and stock options not yet issued but reserved for issuance, if any, all in sufficient detail as to permit any the Major Investor Investors to calculate its their respective percentage equity ownership in the Company, and certified by the chief financial officer or chief executive officer of the Company as being true, complete complete, and correct;
(d) as soon as practicable, but in any event thirty (30) 30 days before the end of each fiscal year, a budget and business plan for the next fiscal year (collectively, the “Budget”), approved by the Board of Directors and (including the majority of the Series AA Directors) prepared on a quarterly monthly basis, including balance sheets, income statements, and statements of cash flow for such quarters months and, promptly after prepared, any other budgets or revised budgets prepared by the Company; and
(e) such other information relating with respect to the financial conditionstatements called for in Section 3.1(b), business, prospects or corporate affairs an instrument executed by the chief financial officer and chief executive officer of the Company certifying that such financial statements were prepared in accordance with GAAP consistently applied with prior practice for earlier periods (except as any Major Investor may from time to time reasonably request; provided, however, that otherwise set forth in Section 3.1(b)) and fairly present the Company shall not be obligated under this Subsection 3.1 to provide information (i) that the Company reasonably determines in good faith to be a trade secret or confidential information (unless covered by an enforceable confidentiality agreement, in form acceptable to the Company) or (ii) the disclosure financial condition of which would adversely affect the attorney-client privilege between the Company and its counselresults of operation for the periods specified therein. If, for any period, the Company has any subsidiary whose accounts are consolidated with those of the Company, then in respect of such period the financial statements delivered pursuant to the foregoing sections shall be the consolidated and consolidating financial statements of the Company and all such consolidated subsidiaries. Notwithstanding anything else in this Subsection Section 3.1 to the contrary, the Company may cease providing the information set forth in this Subsection Section 3.1 during the period starting with the date sixty (60) 60 days before the Company’s good-faith estimate of the date of filing of a registration statement if it reasonably concludes it must do so to comply with the SEC rules applicable to such registration statement and related offering; provided that the Company’s covenants under this Subsection Section 3.1 shall be reinstated at such time as the Company is no longer actively employing its commercially reasonable efforts to cause such registration statement to become effective.
Appears in 1 contract
Sources: Investors' Rights Agreement (Sensei Biotherapeutics, Inc.)
Delivery of Financial Statements. The Company shall deliver to each Major Investor, provided that the Board of Directors has not reasonably determined that such Major Investor is (or, in the case of a Major Investor that is an individual, is employed by or serves as a consultant to) a competitor Competitor of the Company:
(a) as soon as practicable, but in any event within one hundred twenty (120) days after the end of each fiscal year of the Company, Company (i) a balance sheet as of the end of such year, (ii) statements of income and of cash flows for such year, and a comparison between (x) the actual amounts as of and for such fiscal year and (y) the comparable amounts for the prior year and as included in the Budget (as defined in Subsection 3.1(e)) for such year, with an explanation of any material differences between such amounts and a schedule as to the sources and applications of funds for such year, and (iii) a statement of stockholders’ equity capitalization table as of the end of such year, all such financial statements audited and certified by independent public accountants selected by the Company and approved by the Board of Directors, including a majority of the Preferred Directors;
(b) as soon as practicable, but in any event within forty-five (45) days after the end of each of the first three (3) quarters of each fiscal year of the Company, unaudited statements of income and of cash flows for such fiscal quarter, and an unaudited balance sheet and a statement of stockholders’ equity as of the end of such fiscal quarter, all prepared in accordance with GAAP (except that such financial statements may (i) be subject to normal year-end audit adjustments adjustments; and (ii) not contain all notes thereto that may be required in accordance with GAAP);
(c) as soon as practicable, but in any event within forty-five (45) days after the end of each of the first three (3) quarters of each fiscal year of the Company, a statement showing the number of shares of each class and series of capital stock and securities convertible into or exercisable for shares of capital stock outstanding at the end of the period, the Common Stock issuable upon conversion or exercise of any outstanding securities convertible or exercisable for Common Stock and the exchange ratio or exercise price applicable thereto, and the number of shares of issued stock options and stock options not yet issued but reserved for issuance, if any, all in sufficient detail as to permit any the Major Investor Investors to calculate its their respective percentage equity ownership in the Company, and certified by the chief financial officer or chief executive officer of the Company as being true, complete complete, and correct;
(d) as soon as practicable, but in any event thirty (30) days before the end of each fiscal year, a budget and business plan for the next fiscal year (collectively, the “Budget”), approved by the Board of Directors and prepared on a quarterly monthly basis, including balance sheets, income statements, and statements of cash flow for such quarters months and, promptly after prepared, any other budgets or revised budgets prepared by the Company;
(e) with respect to the financial statements called for in Subsection 3.1(a) and Subsection 3.1(b), an instrument executed by the chief financial officer and chief executive officer of the Company certifying that such financial statements were prepared in accordance with GAAP consistently applied with prior practice for earlier periods (except as otherwise set forth in Subsection 3.1(b)) and fairly present the financial condition of the Company and its results of operation for the periods specified therein; and
(ef) such other information relating to the financial condition, business, prospects prospects, or corporate affairs of the Company as any Major Investor may from time to time reasonably request; provided, however, that the Company shall not be obligated under this Subsection 3.1 3.1(f) to provide information (i) that the Company reasonably determines in good faith to be a trade secret or confidential information (unless covered by an enforceable confidentiality agreement, in a form acceptable to the Company) ); or (ii) the disclosure of which would adversely affect the attorney-client privilege between the Company and its counsel. If, for any period, the Company has any subsidiary whose accounts are consolidated with those of the Company, then in respect of such period the financial statements delivered pursuant to the foregoing sections shall be the consolidated and consolidating financial statements of the Company and all such consolidated subsidiaries. Notwithstanding anything else in this Subsection 3.1 to the contrary, the Company may cease providing the information set forth in this Subsection 3.1 during the period starting with the date sixty (60) days before the Company’s good-faith estimate of the date of filing of a registration statement if it reasonably concludes it must do so to comply with the SEC rules applicable to such registration statement and related offering; provided that the Company’s covenants under this Subsection 3.1 shall be reinstated at such time as the Company is no longer actively employing its commercially reasonable efforts to cause such registration statement to become effective.
Appears in 1 contract
Sources: Investors’ Rights Agreement (Cytek BioSciences, Inc.)
Delivery of Financial Statements. The So long as a Major Investor (with its Affiliates) shall own not less than 1,089,561 shares of Registrable Securities (as adjusted for any stock split, stock dividend, combination, or other recapitalization or reclassification effected after the date hereof), the Company shall deliver to each Major Investor, provided that the Board of Directors has not reasonably determined that such Major Investor is (or, in the case of a Major Investor that is an individual, is employed by or serves as a consultant to) a competitor of the CompanyCompany (and solely for purposes of this Section 3.1, Novartis shall not be deemed to be a competitor); provided further that no institutional financial investor may be determined to be a competitor of the Company for any purpose under this Agreement:
(a) as soon as practicable, but in any event within one hundred twenty six (1206) months (or such longer period approved by the Board of Directors including at least two of the Preferred Directors (as defined in that certain Amended and Restated Voting Agreement of even date herewith)) after the end of each fiscal year of the Company ending after the date of this Agreement, (i) a balance sheet as of the end of such year, (ii) statements of income and of cash flows for such year, and a comparison between (x) the actual amounts as of and for such fiscal year and (y) the comparable amounts for the prior year and as included in the Budget (as defined in Subsection 3.1(d)) for such year, with an explanation of any material differences between such amounts and a schedule as to the sources and applications of funds for such year, and (iii) a statement of stockholders’ equity as of the end of such year, with such financial statements to be audited and certified by independent public accountants of nationally recognized standing selected by the Company;
(b) as soon as practicable, but in any event within ninety (90) days after the end of each fiscal year of the Company, (i) a balance sheet as of the end of such year, (ii) statements of income and of cash flows for such year, and a comparison between (x) the actual amounts as of and for such fiscal year and (y) the comparable amounts for the prior year and as included in the Budget (as defined in Subsection 3.1(e3.1(d)) for such year, with an explanation of any material differences between such amounts and a schedule as to the sources and applications of funds for such year, and (iii) a statement of stockholders’ equity as of the end of such year, all with such financial statements audited and certified by independent public accountants selected by the Company and approved by the Board of Directors, including the Preferred Directorsto be unaudited;
(bc) as soon as practicablepracticable following a request by a Major Investor, but in any event within forty-five (45) days after the end of each of the first three (3) quarters of each fiscal year of the Company, unaudited statements of income and of cash flows for such fiscal quarter, and an unaudited balance sheet and a statement of stockholders’ equity as of the end of such fiscal quarter, all prepared in accordance with GAAP (except that such financial statements may (i) be subject to normal year-end yearend audit adjustments adjustments; and (ii) not contain all notes thereto that may be required in accordance with GAAP);
(c) as soon as practicable, but in any event within fortyor on a non-five (45) days after the end of each of the first three (3) quarters of each fiscal year of GAAP basis consistent with the Company, a statement showing the number of shares of each class and series of capital stock and securities convertible into or exercisable for shares of capital stock outstanding at the end of the period, the Common Stock issuable upon conversion or exercise of any outstanding securities convertible or exercisable for Common Stock and the exchange ratio or exercise price applicable thereto, and the number of shares of issued stock options and stock options not yet issued but reserved for issuance, if any, all in sufficient detail as to permit any Major Investor to calculate its percentage equity ownership in the Company, and certified by the chief financial officer or chief executive officer of the Company as being true, complete and correct’s past practices;
(d) as soon as practicablepracticable following a request by a Major Investor, but in any event thirty (30) days before the end of each fiscal year, a budget and business plan for the next fiscal year (collectively, the “Budget”), approved by the Board of Directors and prepared on a quarterly monthly basis, including balance sheets, income statements, and statements of cash flow for such quarters months and, promptly after prepared, any other budgets or revised budgets prepared by the Company;
(e) as soon as practicable following a request by a Major Investor, but in any event within forty-five (45) days after the end of each quarter of each fiscal year of the Company, an updated summary capitalization table of the Company; and
(ef) such other information relating to the financial condition, business, prospects prospects, or corporate affairs of the Company as any Major Investor may from time to time reasonably request; provided, however, that the Company shall not be obligated under this Subsection 3.1 to provide information (i) that the Company reasonably determines in good faith to be a trade secret or confidential information (unless covered by an enforceable confidentiality agreement, in a form acceptable to the Company) , it being agreed that Subsection 3.5 shall constitute an enforceable confidentiality agreement in a form acceptable to the Company); or (ii) the disclosure of which would adversely affect the attorney-client privilege between the Company and its counsel. If, for any period, the Company has any subsidiary whose accounts are consolidated with those of the Company, then in respect of such period the financial statements delivered pursuant to the foregoing sections shall be the consolidated and consolidating financial statements of the Company and all such consolidated subsidiaries. Notwithstanding anything else in this Subsection 3.1 to the contrary, the Company may cease providing the information set forth in this Subsection 3.1 during the period starting with the date sixty thirty (6030) days before the Company’s good-faith estimate of the date of filing of a registration statement if it reasonably concludes it must do so to comply with the SEC rules applicable to such registration statement and related offering; provided that the Company’s covenants under this Subsection 3.1 shall be reinstated at such time as the Company is no longer actively employing its commercially reasonable efforts to cause such registration statement to become effective.
Appears in 1 contract
Sources: Investors’ Rights Agreement (Pliant Therapeutics, Inc.)
Delivery of Financial Statements. The Company shall deliver to each Major Investor, provided that the Board of Directors has not reasonably determined that such Major Investor is (or, in the case of a Major Investor that is an individual, is employed by or serves as a consultant to) a competitor of the Company:
(a) as soon as practicable, but in any event within one hundred twenty ninety (12090) days after the end of each fiscal year of the Company, (i) a balance sheet as of the end of such year, (ii) statements of income and of cash flows for such year, and a comparison between (x) the actual amounts as of and for such fiscal year and (y) the comparable amounts for the prior year and as included in the Budget (as defined in Subsection Section 3.1(e)) for such year, with an explanation of any material differences between such amounts and a schedule as to the sources and applications of funds for such year, and (iii) a statement of stockholders’ equity as of the end of such year, all such financial statements audited and certified by independent public accountants of nationally recognized standing selected by the Company and approved by the Board of Directors, including the Preferred DirectorsCompany;
(b) as soon as practicable, but in any event within forty-five (45) days after the end of each of the first three (3) quarters of each fiscal year of the Company, unaudited statements of income and of cash flows for such fiscal quarter, and an unaudited balance sheet and a statement of stockholders’ equity as of the end of such fiscal quarter, all prepared in accordance with GAAP (except that such financial statements may (i) be subject to normal year-end audit adjustments and (ii) not contain all notes thereto that may be required in accordance with GAAP);
(c) as soon as practicable, but in any event within forty-five (45) days after the end of each of the first three (3) quarters of each fiscal year of the Company, a statement showing the number of shares of each class and series of capital stock and securities convertible into or exercisable for shares of capital stock outstanding at the end of the period, the Common Stock issuable upon conversion or exercise of any outstanding securities convertible or exercisable for Common Stock and the exchange ratio or exercise price applicable thereto, and the number of shares of issued stock options and stock options not yet issued but reserved for issuance, if any, all in sufficient detail as to permit any the Major Investor Investors to calculate its their respective percentage equity ownership in the Company, and certified by the chief financial officer or chief executive officer of the Company (in such person’s capacity as an officer of the Company) as being true, complete complete, and correct;
(d) as soon as practicable, but in any event within thirty (30) days of the end of each month, an unaudited income statement and statement of cash flows for such month, and an unaudited balance sheet and statement of stockholders’ equity as of the end of such month, all prepared in accordance with GAAP (except that such financial statements may (i) be subject to normal year-end audit adjustments and (ii) not contain all notes thereto that may be required in accordance with GAAP);
(e) as soon as practicable, but in any event thirty (30) days before the end of each fiscal year, a budget and business plan for the next fiscal year (collectively, the “Budget”), approved by the Board of Directors and prepared on a quarterly monthly basis, including balance sheets, income statements, and statements of cash flow for such quarters months and, promptly after prepared, any other budgets or revised budgets prepared by the Company;
(f) with respect to the financial statements called for in Section 3.1(a), Section 3.1(b) and Section 3.1(d), an instrument executed by the chief financial officer and chief executive officer of the Company (in their capacity as an officer of the Company) certifying that such financial statements were prepared in accordance with GAAP consistently applied with prior practice for earlier periods (except as otherwise set forth in Section 3.1(b) and Section 3.1(d)) and fairly present the financial condition of the Company and its results of operation for the periods specified therein; and
(eg) such other information relating to the financial condition, business, prospects prospects, or corporate affairs of the Company as any Major Investor may from time to time reasonably request; provided, however, that the Company shall not be obligated under this Subsection Section 3.1 to provide information (i) that the Company reasonably determines in good faith to be a trade secret or confidential information (unless covered by an enforceable confidentiality agreement, in form acceptable to the Company) or (ii) the disclosure of which would adversely affect the attorney-client privilege between the Company and its counsel. If, for any period, the Company has any subsidiary whose accounts are consolidated with those of the Company, then in respect of such period the financial statements delivered pursuant to the foregoing sections shall be the consolidated and consolidating financial statements of the Company and all such consolidated subsidiaries. Notwithstanding anything else in this Subsection Section 3.1 to the contrary, the Company may cease providing the information set forth in this Subsection Section 3.1 during the period starting with the date sixty thirty (6030) days before the Company’s good-faith estimate of the date of filing of a registration statement if it reasonably concludes it must do so to comply with the SEC rules applicable to such registration statement and related offering; provided that the Company’s covenants under this Subsection Section 3.1 shall be reinstated at such time as the Company is no longer actively employing its commercially reasonable efforts to cause such registration statement to become effective.
Appears in 1 contract
Delivery of Financial Statements. The Company shall deliver to each Major Investor, provided that the Board of Directors has not reasonably determined that such Major Investor is (or, in the case of a Major Investor that is an individual, is employed by or serves as a consultant to) a competitor of the Company:
(a) as soon as practicable, but in any event within one hundred twenty fifty (120150) days after the end of each fiscal year of the Company, Company (i) a balance sheet as of the end of such year, (ii) statements of income and of cash flows for such year, and a comparison between (x) the actual amounts as of and for such fiscal year and (y) the comparable amounts for the prior year and as included in the Budget (as defined in Subsection 3.1(e)) for such year, with an explanation of any material differences between such amounts and a schedule as to the sources and applications of funds for such year, and (iii) a statement of stockholders’ equity as of the end of such year, all such financial statements audited and certified by independent public accountants of nationally recognized standing selected by the Company and approved by the Board of Directors, including the Preferred DirectorsCompany;
(b) as soon as practicable, but in any event within forty-five (45) days after the end of each of the first three (3) quarters quarter of each fiscal year of the Company, unaudited statements of income and of cash flows for such fiscal quarter, and an unaudited balance sheet and a statement of stockholders’ equity as of the end of such fiscal quarter, all prepared in accordance with GAAP (except that such financial statements may (i) be subject to normal year-end audit adjustments adjustments; and (ii) not contain all notes thereto that may be required in accordance with GAAP);
(c) as soon as practicable, but in any event within forty-five (45) days after the end of each of the first three (3) quarters of each fiscal year of the Company, a statement showing the number of shares of each class and series of capital stock and securities convertible into or exercisable for shares of capital stock outstanding at the end of the period, the Common Stock issuable upon conversion or exercise of any outstanding securities convertible or exercisable for Common Stock and the exchange ratio or exercise price applicable thereto, and the number of shares of issued stock options and stock options not yet issued but reserved for issuance, if any, all in sufficient detail as to permit any Major Investor the Investors to calculate its their respective percentage equity ownership in the Company, and certified by the chief financial officer or chief executive officer of the Company as being true, complete complete, and correct;
(d) as soon as practicable, but in any event within thirty (30) days of the end of each month, an unaudited income statement and statement of cash flows for such month, and an unaudited balance sheet and statement of stockholders’ equity as of the end of such month, all prepared in accordance with GAAP (except that such financial statements may (i) be subject to normal year-end audit adjustments and (ii) not contain all notes thereto that may be required in accordance with GAAP);
(e) as soon as practicable, but in any event thirty (30) days before the end of each fiscal year, a budget and business plan for the next fiscal year (collectively, the “Budget”), approved by the Board of Directors and prepared on a quarterly monthly basis, including balance sheets, income statements, and statements of cash flow for such quarters months and, promptly after prepared, any other budgets or revised budgets prepared by the Company; and;
(ef) with respect to the financial statements called for in Subsection 3.1(a), Subsection 3.1(b) and Subsection 3.1(d), an instrument executed by the chief financial officer and chief executive officer of the Company certifying that such financial statements were prepared in accordance with GAAP consistently applied with prior practice for earlier periods (except as otherwise set forth in Subsection 3.1(b) and Subsection 3.1(d)) and fairly present the financial condition of the Company and its results of operation for the periods specified therein;
(g) such other information relating to the financial condition, business, prospects prospects, or corporate affairs of the Company as any Major Investor may from time to time reasonably request; provided, however, that the Company shall not be obligated under this Subsection 3.1 to provide information (i) that the Company reasonably determines in good faith to be a trade secret or confidential information (unless covered by an enforceable confidentiality agreement, in form acceptable to the Company) or (ii) the disclosure of which would adversely affect the attorney-client privilege between the Company and its counsel; and
(h) notice of any: (i) claim, action, suit, proceeding, arbitration, complaint, charge or investigation pending or to the Company’s knowledge, currently threatened against the Company or any officer, director or employee of the Company, (ii) violation or default of any provisions of its Restated Certificate or bylaws, (iii) violation or default under any material instrument, judgment, order, writ or decree, note, indenture or mortgage, lease, contract or purchase order to which it is a party or by which it is bound, and (iv) violation of any provision of federal or state statute, rule or regulation applicable to the Company. If, for any period, the Company has any subsidiary whose accounts are consolidated with those of the Company, then in respect of such period the financial statements delivered pursuant to the foregoing sections shall be the consolidated and consolidating financial statements of the Company and all such consolidated subsidiaries. Notwithstanding anything else in this Subsection 3.1 to the contrary, the Company may cease providing the information set forth in this Subsection 3.1 during the period starting with the date sixty thirty (6030) days before the Company’s good-faith estimate of the date of filing of a registration statement if it reasonably concludes it must do so to comply with the SEC rules applicable to such registration statement and related offering; provided that the Company’s covenants under this Subsection 3.1 shall be reinstated at such time as the Company is no longer actively employing its commercially reasonable efforts to cause such registration statement to become effective.
Appears in 1 contract
Delivery of Financial Statements. The Company shall deliver to each Major Investor, provided that the Board of Directors has not reasonably determined that such Major Investor is (or, in the case of a Major Investor that is an individual, is employed by or serves as a consultant to) a competitor Competitor of the Company:
(a) as soon as practicable, but in any event within one hundred twenty (120) days after the end of each fiscal year of the Company, Company (i) a balance sheet as of the end of such year, (ii) statements of income and of cash flows for such year, and a comparison between (x) the actual amounts as of and for such fiscal year and (y) the comparable amounts for the prior year and as included in the Budget (as defined in Subsection 3.1(e)) for such year, with an explanation of any material differences between such amounts and a schedule as to the sources and applications of funds for such year, and (iii) a statement of stockholders’ equity as of the end of such year; provided that, in the event that the Company undertakes an audit of such financial statements, all such financial statements delivered to each Major Investor pursuant to this Section 3.1(a) for the fiscal year of such audit and thereafter shall be audited and certified by independent public accountants of nationally recognized standing selected by the Company and approved by the Board of Directors, including the Preferred DirectorsCompany;
(b) as soon as practicable, but in any event within forty-five (45) days after the end of each of the first three (3) quarters of each fiscal year of the Company, unaudited statements of income and of cash flows for such fiscal quarter, and an unaudited balance sheet and a statement of stockholders’ equity as of the end of such fiscal quarter, all prepared in accordance with GAAP (except that such financial statements may (i) be subject to normal year-end audit adjustments adjustments; and (ii) not contain all notes thereto that may be required in accordance with GAAP);
(c) as soon as practicable, but in any event within forty-five (45) days after the end of each of the first three (3) quarters of each fiscal year of the Company, a statement showing the number of shares of each class and series of capital stock and securities convertible into or exercisable for shares of capital stock outstanding at the end of the period, the Common Stock issuable upon conversion or exercise of any outstanding securities convertible or exercisable for Common Stock and the exchange ratio or exercise price applicable thereto, and the number of shares of issued stock options and stock options not yet issued but reserved for issuance, if any, all in sufficient detail as to permit any the Major Investor Investors to calculate its their respective percentage equity ownership in the Company, and certified by the chief financial officer or chief executive officer of the Company as being true, complete complete, and correct;
(d) as soon as practicable, but in any event thirty (30) days before the end of each fiscal year, a budget and business plan for the next fiscal year (collectively, collectively the “Budget”), approved by the Board of Directors and prepared on a quarterly monthly basis, including balance sheets, income statements, and statements of cash flow for such quarters months and, promptly after prepared, any other budgets or revised budgets prepared by the Company; and
(e) such other information relating to the financial condition, business, prospects prospects, or corporate affairs of the Company as any Major Investor may from time to time reasonably request; provided, however, that the Company shall not be obligated under this Subsection 3.1 to provide information (i) that the Company reasonably determines in good faith to be a trade secret or confidential information (unless covered by an enforceable confidentiality agreement, in a form acceptable to the Company) ); or (ii) the disclosure of which would adversely affect the attorney-client privilege between the Company and its counsel. If, for any period, the Company has any subsidiary whose accounts are consolidated with those of the Company, then in respect of such period the financial statements delivered pursuant to the foregoing sections shall be the consolidated and consolidating financial statements of the Company and all such consolidated subsidiaries. Notwithstanding anything else in this Subsection 3.1 to the contrary, the Company may cease providing the information set forth in this Subsection 3.1 during the period starting with the date sixty (60) days before the Company’s good-faith estimate of the date of filing of a registration statement if it reasonably concludes it must do so to comply with the SEC rules applicable to such registration statement and related offering; provided that the Company’s covenants under this Subsection 3.1 shall be reinstated at such time as the Company is no longer actively employing its commercially reasonable efforts to cause such registration statement to become effective.
Appears in 1 contract
Delivery of Financial Statements. The Company shall deliver to each Major Investor who holds at least 10,000,000 shares of Preferred Stock (a “Qualified Investor, provided that the Board of Directors has not reasonably determined that such Major Investor is (or, in the case of a Major Investor that is an individual, is employed by or serves as a consultant to) a competitor of the Company:”):
(a) as soon as practicable, but in any event within one hundred twenty (120) days after the end of each fiscal year of the Company, Company (i) a an unaudited balance sheet as of the end of such year, (ii) unaudited statements of income and of cash flows for such year, and a comparison between (x) the actual amounts as of and for such fiscal year and (y) the comparable amounts for the prior year and as included in the Budget (as defined in Subsection 3.1(e)) for such year, with an explanation of any material differences between such amounts and a schedule as to the sources and applications of funds for such year, and (iii) a an unaudited statement of stockholdersshareholders’ equity as of the end of such year, all such financial statements audited and certified by independent public accountants selected by the Company and approved by the Board of Directors, including the Preferred Directors;
(b) as soon as practicable, but in any event within forty-five (45) days after the end of each of the first three (3) quarters of each fiscal year of the Company, : (i) unaudited statements of income and of cash flows for such fiscal quarter, quarter and for the current fiscal year to date; (ii) an unaudited balance sheet and a statement of stockholdersshareholders’ equity as of the end of such fiscal quarterquarter and for the current fiscal year to date, all prepared in accordance with GAAP (except that such financial statements may (i) be subject to normal year-end audit adjustments adjustments; and (ii) not contain all notes thereto that may be required in accordance with GAAP); and (iii) a comparison of the foregoing financial statements against the Budget (as defined below) and a current capitalization table for the Company;
(c) at such time as soon the Company delivers the financial statements required under Sections 3.1(a) and 3.1(b), a statement showing, as practicable, but in any event within forty-five (45) days after of the end of each of the first three (3) quarters of each fiscal year of the Companyperiod for such financial statement, a statement showing the number of shares of each class and series of capital stock and securities convertible into or exercisable for shares of capital stock outstanding at the end of the period, the Common Stock issuable upon conversion or exercise of any outstanding securities convertible or exercisable for Common Stock and the exchange ratio or exercise price applicable thereto, and the number of shares of issued stock options and stock options not yet issued but reserved for issuance, if any, all in sufficient detail as to permit any Major Investor the Qualified Investors to calculate its their respective percentage equity ownership in the Company, and certified by the chief financial officer or chief executive officer of the Company as being true, complete complete, and correct;
(d) as soon as practicable, but in any event thirty (30) days before the end of each fiscal year, a budget and business plan for the next fiscal year (collectively, the “Budget”), approved by the Board of Directors and prepared on a quarterly monthly basis, including balance sheets, income statements, and statements of cash flow for such quarters months and, promptly after prepared, any other budgets or revised budgets prepared by the Company; and;
(e) with respect to the financial statements called for in Subsection 3.1(a), Subsection 3.1(b) and Subsection 3.1(c), an instrument executed by the chief financial officer and chief executive officer of the Company certifying that such financial statements were prepared in accordance with GAAP consistently applied with prior practice for earlier periods (except as otherwise set forth in Subsection 3.1(b) and Subsection 3.1(d)) and fairly present the financial condition of the Company and its results of operation for the periods specified therein;
(f) such other information relating to the financial condition, business, prospects prospects, or corporate affairs of the Company as any Major Qualified Investor may from time to time reasonably request; provided, however, that the Company shall not be obligated under this Subsection 3.1 to provide information (i) that the Company reasonably determines in good faith to be a trade secret or confidential information (unless covered by an enforceable confidentiality agreement, in a form acceptable to the Company) ); or (ii) the disclosure of which would adversely affect the attorney-client privilege between the Company and its counsel. If, for any period, the Company has any subsidiary whose accounts are consolidated with those of the Company, then in respect of such period the financial statements delivered pursuant to the foregoing sections shall be the consolidated and consolidating financial statements of the Company and all such consolidated subsidiaries. Notwithstanding anything else in this Subsection 3.1 to the contrary, the Company may cease providing the information set forth in this Subsection 3.1 during the period starting with the date sixty thirty (6030) days before the Company’s good-faith estimate of the date of filing of a registration statement if it reasonably concludes it must do so to comply with the SEC rules applicable to such registration statement and related offering; provided that the Company’s covenants under this Subsection 3.1 shall be reinstated at such time as the Company is no longer actively employing its commercially reasonable efforts to cause such registration statement to become effective.
Appears in 1 contract
Sources: Investors’ Rights Agreement (Alx Oncology Holdings Inc)
Delivery of Financial Statements. The So long as such Investor is a Major Investor, the Company shall deliver to (i) each Major of the Permira Investor, provided that IVP, KPCB, GPI and FP and (ii) FT, ▇▇▇▇▇▇▇▇▇, TCV, TA Associates, WCP, and Cross Creek only with respect to the Board financial statements in Subsections (a) and (b) of Directors has not reasonably determined that such Major Investor is this Section 3.1 (oreach, in the case of a Major Investor that is an individual, is employed by or serves as a consultant to) a competitor of the Company:“Information Rights Party”):
(a) as soon as practicable, but in any event within one hundred twenty (120) days after the end of each fiscal year of the Company, (i) a balance sheet and income statement as of the end last day of such year, (ii) statements a statement of income stockholders’ equity and of cash flows for such year, year and a comparison between (x) the actual amounts as of and figures for such fiscal year and (y) year, the comparable amounts figures for the prior year and as the comparable figures included in the Budget (as defined in Subsection 3.1(e)below) for such year, with an explanation of any material differences between such amounts them and a schedule as to the sources and applications of funds for such year, such year-end financial reports to be in reasonable detail, prepared in accordance with GAAP (except that the financial report may (i) be subject to normal year-end audit adjustments and (iiiii) a statement of stockholders’ equity as of the end of such yearnot contain all notes thereto which may be required in accordance with GAAP), all such financial statements and audited and certified by independent public accountants of nationally recognized standing selected by the Company and approved by the Board of Directors, including the Preferred DirectorsCompany;
(b) as soon as practicable, but in any event within forty-five (45) days after the end of each of the first three (3) quarters of each fiscal year of the Company, an unaudited statements income statement, schedule as to the sources and application of income and of cash flows funds for such fiscal quarter, and an unaudited balance sheet and a statement of stockholders’ equity and cash flows as of the end of such fiscal quarter, all prepared in accordance with GAAP (except that such financial statements may (i) be subject to normal year-end audit adjustments and (ii) not contain all notes thereto that may be required in accordance with GAAP);
(c) as soon as practicable, but in any event within with forty-five (45) days after the end of each of the first three (3) quarters of each fiscal year of the Company, a statement showing the number of shares of each class and series of capital stock and securities convertible into or exercisable for shares of capital stock outstanding at the end of the period, the Common Stock number of common shares issuable upon conversion or exercise of any outstanding securities convertible or exercisable for Common Stock common shares and the exchange ratio or exercise price applicable thereto, thereto and the number of shares of issued stock options and stock options not yet issued but reserved for issuance, if any, all in sufficient detail as to permit any Major Investor the Investors with Registrable Securities to calculate its percentage equity ownership in the Company, Company and certified by the chief financial officer Chief Financial Officer or chief executive officer Chief Executive Officer of the Company as being true, complete and correct;
(d) as soon as practicable, but in any event within thirty (30) days before following the end of each month, an unaudited income statement, statement of stockholders’ equity and cash flows, and an unaudited profit or loss statement;
(e) as soon as practicable, but in any event thirty (30) days prior to the end of each fiscal year, a budget and business plan for the next fiscal year (collectively, the “Budget”), approved by the Board of Directors and prepared on a quarterly monthly basis, including balance sheets, income statements, sheets and sources and applications of funds statements of cash flow for such quarters months and, promptly after as soon as prepared, any other budgets or revised budgets prepared by the Company; and;
(ef) with respect to the financial statements called for in Subsections (a), (b) and (c) of this Section 3.1, an instrument executed by the Chief Financial Officer and President or Chief Executive Officer of the Company and certifying that such financials were prepared in accordance with GAAP consistently applied with prior practice for earlier periods (with the exception of footnotes that may be required by GAAP) and fairly present the financial condition of the Company and its results of operation for the periods specified therein, subject to year-end audit adjustment;
(g) such other information relating to the financial condition, business, prospects or corporate affairs of the Company as any Major Investor an Information Rights Party may from time to time reasonably request; , provided, however, that the Company shall not be obligated under this Subsection (g) or any other subsection of Section 3.1 to provide information (i) that provide information which the Company reasonably determines deems in good faith to be a trade secret or similar confidential information (unless covered by an enforceable confidentiality agreement, in form acceptable to the Company) or (ii) the disclosure of which would adversely affect the attorney-client privilege between the Company and its counsel. If, ;
(h) if for any period, period the Company has shall have any subsidiary whose accounts are consolidated with those of the Company, then in respect of such period the financial statements delivered pursuant to the foregoing sections shall be the consolidated and consolidating financial statements of the Company and all such consolidated subsidiaries. Notwithstanding anything else in this Subsection 3.1 ;
(i) promptly following receipt by the Company, each audit response letter, accountant’s management letter and other written report submitted to the contrary, Company by its independent public accountants in connection with an annual or interim audit of the books of the Company may cease providing or any of its subsidiaries; and
(j) promptly after the information set forth in this Subsection 3.1 during the period starting with the date sixty (60) days before the Company’s good-faith estimate commencement thereof, notice of the date of filing of a registration statement if it reasonably concludes it must do so to comply with the SEC rules applicable to such registration statement all actions, suits, claims, proceedings, investigations and related offering; provided inquiries that the Company’s covenants under this Subsection 3.1 shall be reinstated at such time as could materially and adversely affect the Company is no longer actively employing or any of its commercially reasonable efforts to cause such registration statement to become effectivesubsidiaries, if any.
Appears in 1 contract
Delivery of Financial Statements. The Company shall deliver to each Major Investor, provided that the Board of Directors has not reasonably determined that such Major Investor is (or, in the case of a Major Investor that is an individual, is employed by or serves as a consultant to) a competitor of the CompanyCompetitor:
(a) starting with the fiscal year ending December 31, 2019, as soon as practicable, but in any event within one hundred twenty (120) days [***] after the end of each fiscal year of the CompanyCompany and starting with the fiscal year ending December 31, 2020, as soon as practicable but in any event within [***] after the end of each fiscal year of the Company (i) a balance sheet as of the end of such year, (ii) statements of income and of cash flows for such year, and a comparison between (x) the actual amounts as of and for such fiscal year and (y) the comparable amounts for the prior year and as included in the Budget (as defined in Subsection 3.1(e3.1(d)) for such year, with an explanation of any material differences between such amounts and a schedule as to the sources and applications of funds for such year, and (iii) a statement of stockholders’ equity as of the end of such year, all such financial statements audited and certified by independent public accountants of regionally recognized standing selected by the Company and approved by the Board of Directors, including the Preferred DirectorsCompany;
(b) as soon as practicable, but in any event within forty-five (45) days [***] after the end of each of the first three (3) quarters of each fiscal year of the Company, unaudited statements of income and of cash flows for such fiscal quarter, and an unaudited balance sheet and a statement of stockholders’ equity as of the end of such fiscal quarter, all prepared in accordance with GAAP (except that such financial statements may (i) be subject to normal year-end audit adjustments adjustments; and (ii) not contain all notes thereto that may be required in accordance with GAAP);
(c) as soon as practicable, but in any event within forty-five (45) days [***] after the end of each of the first three (3) quarters of each fiscal year of the Company, a statement showing the number of shares of each class and series of capital stock and securities convertible into or exercisable for shares of capital stock outstanding at the end of the period, the Common Stock issuable upon conversion or exercise of any outstanding securities convertible or exercisable for Common Stock and the exchange ratio or exercise price applicable thereto, and the number of shares of issued stock options and stock options not yet issued but reserved for issuance, if any, all in sufficient detail as to permit any the Major Investor Investors to calculate its their respective percentage equity ownership in the Company, and certified by the chief financial officer or chief executive officer of the Company as being true, complete complete, and correct;
(d) as soon as practicable, but in any event thirty (30) days [***] before the end of each fiscal year, a budget and business plan for the next fiscal year (collectively, the “Budget”), approved by the Board of Directors (including the Requisite Directors) and prepared on a quarterly monthly basis, including balance sheets, income statements, and statements of cash flow for such quarters months and, promptly after prepared, any other budgets or revised budgets prepared by the Company;
(e) with respect to the financial statements called for in Subsection 3.1(a), and Subsection 3.1(b), an instrument executed by the chief financial officer and chief executive officer of the Company certifying that such financial statements were prepared in accordance with GAAP consistently applied with prior practice for earlier periods (except as otherwise set forth in Subsection 3.1(b)) and fairly present the financial condition of the Company and its results of operation for the periods specified therein; and
(ef) such other information relating to the financial condition, business, prospects prospects, or corporate affairs of the Company as any Major Investor may from time to time reasonably request; provided, however, that the Company shall not be obligated under this Subsection 3.1 to provide information (i) that the Company reasonably determines in good faith to be a trade secret or confidential information (unless covered by an enforceable confidentiality agreement, in a form acceptable to the Company) ); or (ii) the disclosure of which would adversely affect the attorney-client privilege between the Company and its counsel. If, for any period, the Company has any subsidiary whose accounts are consolidated with those of the Company, then in respect of such period the financial statements delivered pursuant to the foregoing sections shall be the consolidated and consolidating financial statements of the Company and all such consolidated subsidiaries. Notwithstanding anything else in this Subsection 3.1 to the contrary, the Company may cease providing the information set forth in this Subsection 3.1 during the period starting with the date sixty thirty (6030) days before the Company’s good-faith estimate of the date of filing of a registration statement if it reasonably concludes it must do so to comply with the SEC rules applicable to such registration statement and related offering; provided that the Company’s covenants under this Subsection 3.1 shall be reinstated at such time as the Company is no longer actively employing its commercially reasonable efforts to cause such registration statement to become effective.
Appears in 1 contract
Delivery of Financial Statements. The Company shall deliver to each Major Investor, provided that the Board of Directors has not reasonably determined that such Major Investor is (or, in the case of a Major Investor that is an individual, is employed by or serves as a consultant to) a competitor Competitor of the Company:
(a) as soon as practicablepracticable upon the receipt of Major Investor’s written request, but in any event within one hundred twenty (120) days after the end of each fiscal year of the Company, Company (i) a balance sheet as of the end of such year, (ii) statements of income and of cash flows for such year, and a comparison between (x) the actual amounts as of and for such fiscal year and (y) the comparable amounts for the prior year and as included in the Budget (as defined in Subsection 3.1(e)) for such year, with an explanation of any material differences between such amounts and a schedule as to the sources and applications of funds for such year, and (iii) a statement of stockholders’ equity as of the end of such year, all such financial statements audited and certified by independent public accountants selected by the Company and approved by the Board of Directors, including the Preferred Directors;; and
(b) as soon as practicablepracticable upon the receipt of Major Investor’s written request, but in any event within forty-five (45) days after the end of each of the first three (3) quarters of each fiscal year of the Company, unaudited statements of income and of cash flows for such fiscal quarter, and an unaudited balance sheet and a statement of stockholders’ equity as of the end of such fiscal quarter, all prepared in accordance with GAAP (except that such financial statements may (i) be subject to normal year-end audit adjustments; and (ii) not contain all notes thereto that may be required in accordance with GAAP), together with a written report of the President or Chief Executive Officer briefly summarizing the results from such quarter and any other material developments;
(c) as soon as practicable, but in any event within thirty (30) days of the end of each month, an unaudited income statement, statement of cash flows, bank reconciliation, and aging of accounts receivable and payable for such month, and an unaudited balance sheet as of the end of such month, all prepared in accordance with GAAP (except that such financial statements may (i) be subject to normal year-end audit adjustments and (ii) not contain all notes thereto that may be required in accordance with GAAP);
(c) as soon as practicable, but in any event within forty-five (45) days after the end of each of the first three (3) quarters of each fiscal year of the Company, a statement showing the number of shares of each class and series of capital stock and securities convertible into or exercisable for shares of capital stock outstanding at the end of the period, the Common Stock issuable upon conversion or exercise of any outstanding securities convertible or exercisable for Common Stock and the exchange ratio or exercise price applicable thereto, and the number of shares of issued stock options and stock options not yet issued but reserved for issuance, if any, all in sufficient detail as to permit any Major Investor to calculate its percentage equity ownership in the Company, and certified by the chief financial officer or chief executive officer of the Company as being true, complete and correct;
(d) as soon as practicable, but in any event thirty (30) days before the end of each fiscal year, a budget and business plan for the next fiscal year (collectively, the “Budget”), approved by the Board of Directors and prepared on a quarterly basis, including balance sheets, income statements, and statements of cash flow for such quarters and, promptly after prepared, any other budgets or revised budgets prepared by the Company; and
(e) such other information relating to the financial condition, business, prospects or corporate affairs of the Company as any Major Investor may from time to time reasonably request; provided, however, that the Company shall not be obligated under this Subsection 3.1 to provide information (i) that the Company reasonably determines in good faith to be a trade secret or confidential information (unless covered by an enforceable confidentiality agreement, in form acceptable to the Company) or (ii) the disclosure of which would adversely affect the attorney-client privilege between the Company and its counsel. If, for any period, the Company has any subsidiary whose accounts are consolidated with those of the Company, then in respect of such period the financial statements delivered pursuant to the foregoing sections shall be the consolidated and consolidating financial statements of the Company and all such consolidated subsidiaries. Notwithstanding anything else in this Subsection 3.1 to the contrary, the Company may cease providing the information set forth in this Subsection 3.1 during the period starting with the date sixty (60) days before the Company’s good-faith estimate of the date of filing of a registration statement if it reasonably concludes it must do so to comply with the SEC rules applicable to such registration statement and related offering; provided that the Company’s covenants under this Subsection 3.1 shall be reinstated at such time as the Company is no longer actively employing its commercially reasonable efforts to cause such registration statement to become effective.
Appears in 1 contract
Delivery of Financial Statements. The Company shall deliver to each Major Investor the following, so long as such Major Investor, provided that the Board of Directors has not reasonably determined that such Major Investor is (orindividually or together with its Affiliates, in the case of a Major Investor that is an individual, is employed by or serves as a consultant to) a competitor beneficially owns more than 1,500,000 shares of the Company’s Common Stock on an as-converted basis, the following:
(a) as soon as practicable, but in any event within ninety (90) days after the end of each fiscal year of the Company, (i) an unaudited balance sheet as of the end of such year, (ii) unaudited statements of income and of cash flows for such year, and (iii) an unaudited statement of stockholders’ equity as of the end of such year;
(b) as soon as practicable, but in any event within one hundred twenty eighty (120180) days after the end of each fiscal year of the Company, (i) a balance sheet as of the end of such year, (ii) statements of income and of cash flows for such year, and a comparison between (x) the actual amounts as of and for such fiscal year and (y) the comparable amounts for the prior year and as included in the Budget (as defined in Subsection Section 3.1(e)) for such year, with an explanation of any material differences between such amounts and a schedule as to the sources and applications of funds for such year, and (iii) a statement of stockholders’ equity as of the end of such year, all such financial statements audited and certified by independent public accountants selected by the Company and approved by the Board of Directors, including the Preferred DirectorsCompany;
(bc) as soon as practicable, but in any event within forty-five thirty (4530) days after the end of each of the first three (3) quarters of each fiscal year of the Company, unaudited statements of income and of cash flows for such fiscal quarter, and an unaudited balance sheet and a statement of stockholders’ equity as of the end of such fiscal quarter, all prepared in accordance with GAAP (except that such financial statements may (i) be subject to normal year-end audit adjustments and (ii) not contain all notes thereto that may be required in accordance with GAAP);
(cd) as soon as practicable, but in any event at least thirty (30) days before the end of each fiscal year, a comprehensive operating plan for the next fiscal year and a budget forecasting the Company’s revenue, expenses, and cash position on a month-to-month basis for the upcoming fiscal year, all as authorized and approved by the Board of Directors (collectively, the “Budget”);
(e) as soon as practicable, but in any event within forty-five thirty (4530) days after the end of each of the first three (3) quarters of each fiscal year of the CompanyCompany (or promptly following any written request from a Major Investor), a statement showing the number of shares of each class and series of capital stock and securities convertible into or exercisable for shares of capital stock outstanding at the end of the period, the Common Stock issuable upon conversion or exercise of any outstanding securities convertible or exercisable for Common Stock and the exchange ratio or exercise price applicable thereto, and the number of shares of issued stock options and stock options not yet issued but reserved for issuance, if any, all in sufficient detail as to permit any the Major Investor Investors to calculate its their respective percentage equity ownership in the Company, and certified by the chief financial officer Chief Financial Officer or chief executive officer Chief Executive Officer of the Company as being true, complete and correct;
(d) as soon as practicable, but in any event thirty (30) days before the end of each fiscal year, a budget and business plan for the next fiscal year (collectively, the “Budget”), approved by the Board of Directors and prepared on a quarterly basis, including balance sheets, income statements, and statements of cash flow for such quarters and, promptly after prepared, any other budgets or revised budgets prepared by the Company; and
(ef) such other information relating to the financial condition, business, prospects prospects, or corporate affairs of the Company as any Major Investor may from time to time reasonably request; provided, however, that the Company shall not be obligated under this Subsection Section 3.1 to provide information (i) that the Company reasonably determines in good faith to be a trade secret or confidential information (unless covered by an enforceable confidentiality agreement, in form acceptable to the Company) or (ii) the disclosure of which would adversely affect the attorney-client privilege between the Company and its counsel. If, for any period, the Company has any subsidiary whose accounts are consolidated with those of the Company, then in respect of such period the financial statements delivered pursuant to the foregoing sections shall be the consolidated and consolidating financial statements of the Company and all such consolidated subsidiaries. Notwithstanding anything else in this Subsection Section 3.1 to the contrary, the Company may cease providing the information set forth in this Subsection Section 3.1 during the period starting with the date sixty thirty (6030) days before the Company’s good-faith estimate of the date of filing of a registration statement if it reasonably concludes it must do so to comply with the SEC rules applicable to such registration statement and related offering; provided that the Company’s covenants under this Subsection Section 3.1 shall be reinstated at such time as the Company is no longer actively employing its commercially reasonable efforts to cause such registration statement to become effective.
Appears in 1 contract
Sources: Investors’ Rights Agreement (Prelude Therapeutics Inc)
Delivery of Financial Statements. The Company shall deliver to each Major Investor, ; provided that the Board of Directors has not reasonably determined that such Major Investor is a competitor of the Company (or, in the case of it being understood that a venture capital fund that is a Major Investor that is an individual, is employed by or serves as a consultant to) will not be determined to be a competitor of the Company:):
(a) as soon as practicable, but in any event within one hundred twenty ninety (12090) days after the end of each fiscal year of the Company, Company (i) a balance sheet as of the end of such year, (ii) statements of income and of cash flows for such year, and a comparison between (x) the actual amounts as of and for such fiscal year and (y) the comparable amounts for the prior year and as included in the Budget (as defined in Subsection 3.1(e)) for such year, with an explanation of any material differences between such amounts and a schedule as to the sources and applications of funds for such year, and (iii) a statement of stockholders’ equity as of the end of such year, all such financial statements audited and certified by independent public accountants of recognized standing selected by the Company and approved by the Company’s Board of Directors, including the Preferred Directors;
(b) as soon as practicable, but in any event within forty-five (45) days after the end of each of the first three (3) quarters of each fiscal year of the Company, unaudited statements of income and of cash flows for such fiscal quarter, and an unaudited balance sheet and a statement of stockholders’ equity as of the end of such fiscal quarter, all prepared in accordance with GAAP (except that such financial statements may (i) be subject to normal year-end audit adjustments adjustments; and (ii) not contain all notes thereto that may be required in accordance with GAAP);
(c) as soon as practicable, but in any event within forty-five (45) days after the end of each of the first three (3) quarters of each fiscal year of the Company, a statement showing the number of shares of each class and series of capital stock and securities convertible into or exercisable for shares of capital stock outstanding at the end of the period, the Common Stock issuable upon conversion or exercise of any outstanding securities convertible or exercisable for Common Stock and the exchange ratio or exercise price applicable thereto, and the number of shares of issued stock options and stock options not yet issued but reserved for issuance, if any, all in sufficient detail as to permit any the Major Investor Investors to calculate its their respective percentage equity ownership in the Company, and certified by the chief financial officer or chief executive officer of the Company as being true, complete complete, and correct;
(d) as soon as practicable, but in any event within thirty (30) days of the end of each month, an unaudited income statement and statement of cash flows for such month, and an unaudited balance sheet and statement of stockholders’ equity as of the end of such month, all prepared in accordance with GAAP (except that such financial statements may (i) be subject to normal year-end audit adjustments and (ii) not contain all notes thereto that may be required in accordance with GAAP);
(e) as soon as practicable, but in any event thirty (30) days before the end of each fiscal year, a budget and business plan for the next fiscal year (collectively, the “Budget”), approved by the Board of Directors and prepared on a quarterly monthly basis, including balance sheets, income statements, and statements of cash flow for such quarters months and, promptly after prepared, any other budgets or revised budgets prepared by the Company;
(f) with respect to the financial statements called for in Subsection 3.1(a), Subsection 3.1(b) and Subsection 3.1(d), an instrument executed by the chief financial officer and chief executive officer of the Company certifying that such financial statements were prepared in accordance with GAAP consistently applied with prior practice for earlier periods (except as otherwise set forth in Subsection 3.1(b) and Subsection 3.1(d)) and fairly present the financial condition of the Company and its results of operation for the periods specified therein; and
(eg) such other information relating to the financial condition, business, prospects prospects, or corporate affairs of the Company as any Major Investor may from time to time reasonably request; provided, however, that the Company shall not be obligated under this Subsection 3.1 to provide information (i) that the Company reasonably determines in good faith to be a trade secret or confidential information (unless covered by an enforceable confidentiality agreement, in a form acceptable to the Company) ); or (ii) the disclosure of which would adversely affect the attorney-client privilege between the Company and its counsel. If, for any period, the Company has any subsidiary whose accounts are consolidated with those of the Company, then in respect of such period the financial statements delivered pursuant to the foregoing sections shall be the consolidated and consolidating financial statements of the Company and all such consolidated subsidiaries. Each Major Investor subject to this Subsection 3.1 hereby agrees that it will not lend; offer; pledge; sell; contract to sell; sell any option or contract to purchase; purchase any option or contract to sell; grant any option, right, or warrant to purchase; or otherwise transfer or dispose of, directly or indirectly, any shares of Common Stock or any securities convertible into or exercisable or exchangeable (directly or indirectly) for Common Stock or enter into any swap or other arrangement that transfers to another, in whole or in part, any of the economic consequences of ownership of such securities unless the Major Investor has informed the General Counsel of the Company that they wish to execute such transactions and the Company has notified all Major Investors subject to this Subsection 3.1 that they may make such transactions during a specified period. Notwithstanding anything else in this Subsection 3.1 to the contrary, the Company may cease providing the information set forth in this Subsection 3.1 during the period starting with the date sixty thirty (6030) days before the Company’s good-faith estimate of the date of filing of a registration statement if it reasonably concludes it must do so to comply with the SEC rules applicable to such registration statement and related offering; provided that the Company’s covenants under this Subsection 3.1 shall be reinstated at such time as the Company is no longer actively employing its commercially reasonable efforts to cause such registration statement to become effective.
Appears in 1 contract
Delivery of Financial Statements. The Company shall deliver to each Major Investor, provided that the Board of Directors has not reasonably determined that such Major Investor is a competitor of the Company (orprovided that none of Farallon Capital Management, in the case L.L.C. or any of a Major Investor that is an individualits Affiliates (collectively, is employed by or serves as a consultant to“Farallon”) shall be deemed to be a competitor of the Company:):
(a) as soon as practicable, but in any event within one hundred twenty ninety (12090) days after the end of each fiscal year of the Company, (i) a balance sheet as of the end of such year, (ii) statements of income and of cash flows for such year, and a comparison between (x) the actual amounts as of and for such fiscal year and (y) the comparable amounts for the prior year and as included in the Budget (as defined in Subsection 3.1(e)below) for such year, with an explanation of any material differences between such amounts and a schedule as to the sources and applications of funds for such year, and (iii) a statement of stockholders’ equity as of the end of such year, all such financial statements audited and certified by independent public accountants of nationally recognized standing selected by the Company and approved by the Board of Directors, including the Preferred DirectorsCompany;
(b) as soon as practicable, but in any event within forty-five (45) days after the end of each of the first three (3) quarters of each fiscal year of the Company, unaudited statements of income and of cash flows for such fiscal quarter, and an unaudited balance sheet and a statement of stockholders’ equity as of the end of such fiscal quarter, all prepared in accordance with GAAP (except that such financial statements may (i) be subject to normal year-end audit adjustments and (ii) not contain all notes thereto that may be required in accordance with GAAP);
(c) as soon as practicable, but in any event within thirty (30) days after the end of each month, an unaudited statement of income and statement of cash flows for such month, and an unaudited balance sheet and statement of stockholders’ equity as of the end of such month, all prepared in accordance with GAAP (except that such financial statements may (i) be subject to normal year-end audit adjustments and (ii) not contain all notes thereto that may be required in accordance with GAAP);
(d) as soon as practicable, but in any event within forty-five (45) days after the end of each of the first three (3) quarters of each fiscal year of the Company, a statement showing the number of shares of each class and series of capital stock and securities convertible into or exercisable for shares of capital stock outstanding at the end of the period, the Common Stock issuable upon conversion or exercise of any outstanding securities convertible or exercisable for Common Stock and the exchange ratio or exercise price applicable thereto, and the number of shares of issued stock options and stock options not yet issued but reserved for issuance, if any, all in sufficient detail as to permit any the Major Investor Investors to calculate its their respective percentage equity ownership in the Company, and certified by the chief financial officer or chief executive officer of the Company as being true, complete complete, and correct;
(de) as soon as practicable, but in any event thirty (30) days before the end of each fiscal year, a budget and business plan for the next fiscal year (collectively, the “Budget”), approved by the Board Board, including the approval of Directors at least two (2) of the Series D Directors, and prepared on a quarterly monthly basis, including balance sheets, income statements, and statements of cash flow for such quarters months and, promptly after prepared, any other budgets or revised budgets prepared by the Company; and
(ef) such other information relating to the financial condition, business, prospects prospects, or corporate affairs of the Company as any Major Investor may from time to time reasonably request; provided, however, that the Company shall not be obligated under this Subsection 3.1 to provide information (i) that the Company reasonably determines in good faith to be a trade secret or confidential information (unless covered by an enforceable confidentiality agreement, in form acceptable to the Company) ); or (ii) the disclosure of which would adversely affect the attorney-client privilege between the Company and its counsel. If, for any period, the Company has any subsidiary whose accounts are consolidated with those of the Company, then in respect of such period the financial statements delivered pursuant to the foregoing sections shall be the consolidated and consolidating financial statements of the Company and all such consolidated subsidiaries. Notwithstanding anything else in this Subsection 3.1 to the contrary, the Company may cease providing the information set forth in this Subsection 3.1 during the period starting with the date sixty thirty (6030) days before the Company’s good-faith estimate of the date of filing of a registration statement if it reasonably concludes it must do so to comply with the SEC rules applicable to such registration statement and related offering; provided that the Company’s covenants under this Subsection 3.1 shall be reinstated at such time as the Company is no longer actively employing its commercially reasonable efforts to cause such registration statement to become effective.
Appears in 1 contract
Delivery of Financial Statements. The In the event that the Company ceases filing annual and periodic reports with the SEC, the Company shall deliver to each Major Investor, provided that the Board of Directors has not reasonably determined that such Major Investor is (or, in the case of a Major Investor that is an individual, is employed by or serves as a consultant to) a competitor of the Company:
(a) as soon as practicable, but in any event within one hundred twenty ninety (12090) days after the end of each fiscal year of the Company, (i) a balance sheet as of the end of such year, (ii) statements of income and of cash flows for such year, and a comparison between (x) the actual amounts as of and for such fiscal year and (y) the comparable amounts for the prior year and as included in the Budget (as defined in Subsection Section 3.1(e)) for such year, with an explanation of any material differences between such amounts and a schedule as to the sources and applications of funds for such year, and (iii) a statement of stockholders’ equity as of the end of such year, all such financial statements audited and certified by independent public accountants of nationally or regionally recognized standing selected by the Company and approved by the Board of Directors, including the Preferred DirectorsCompany;
(b) as soon as practicable, but in any event within forty-forty five (45) days after the end of each of the first three (3) quarters of each fiscal year of the Company, unaudited statements of income and of cash flows for such fiscal quarter, and an unaudited balance sheet and a statement of stockholders’ equity as of the end of such fiscal quarter, all prepared in accordance with GAAP (except that such financial statements may (i) be subject to normal year-year end audit adjustments and (ii) not contain all notes thereto that may be required in accordance with GAAP);
(c) as soon as practicable, but in any event within forty-five (45) days after the end of each of the first three (3) quarters of each fiscal year of the Company, a statement showing the number of shares of each class and series of capital stock and securities convertible into or exercisable for shares of capital stock outstanding at the end of the period, the Common Stock issuable upon conversion or exercise of any outstanding securities convertible or exercisable for Common Stock and the exchange ratio or exercise price applicable thereto, and the number of shares of issued stock options and stock options not yet issued but reserved for issuance, if any, all in sufficient detail as to permit any the Major Investor Investors to calculate its their respective percentage equity ownership in the Company, and certified by the chief financial officer or chief executive officer of the Company as being true, complete complete, and correct;
(d) as soon as practicable, but in any event within thirty (30) days of the end of each month, an unaudited income statement for such month, and an unaudited balance sheet as of the end of such month, all prepared in accordance with GAAP (except that such financial statements may (i) be subject to normal year-end audit adjustments and (ii) not contain all notes thereto that may be required in accordance with GAAP);
(e) as soon as practicable, but in any event thirty (30) days before the end of each fiscal year, a budget and business plan for the next fiscal year (collectively, the “Budget”), approved by the Board of Directors and prepared on a monthly or quarterly basis, including balance sheets, income statements, and statements of cash flow for such months or quarters and, promptly after prepared, any other budgets or revised budgets prepared by the Company; and
(ef) such other information relating to the financial condition, business, prospects prospects, or corporate affairs of the Company as any Major Investor may from time to time reasonably request; provided, however, that the Company shall not be obligated under this Subsection Section 3.1 to provide information (i) that the Company reasonably determines in good faith to be a trade secret or confidential information (unless covered by an enforceable confidentiality agreement, in form reasonably acceptable to the Company) or (ii) the disclosure of which would adversely affect the attorney-client privilege between the Company and its counsel. If, for any period, the Company has any subsidiary whose accounts are consolidated with those of the Company, then in respect of such period the financial statements delivered pursuant to the foregoing sections shall be the consolidated and consolidating financial statements of the Company and all such consolidated subsidiaries. Notwithstanding anything else in this Subsection Section 3.1 to the contrary, the Company may cease providing the information set forth in this Subsection Section 3.1 during the period starting with the date sixty thirty (6030) days before the Company’s good-faith estimate of the date of filing of a registration statement if it reasonably concludes it must do so to comply with the SEC rules applicable to such registration statement and related offeringoffering (which such conclusion and underlying logic shall be provided in writing promptly to all Holders; provided that the Company’s covenants under this Subsection Section 3.1 shall be reinstated at such time as the Company is no longer actively employing its commercially reasonable efforts to cause such registration statement to become effective. To the extent that any Major Investor has the ability to appoint or elect a designated representative to the Company’s Board of Directors, delivery by the Company to such representative of any information required by Section 3.1 shall be deemed to fulfill the Company’s obligations thereunder to such Major Investor.
Appears in 1 contract
Sources: Investors’ Rights Agreement (Diligent Board Member Services, Inc.)
Delivery of Financial Statements. The Company shall deliver to each Major Investor, provided provided, that the Board of Directors Directors, including a majority of the Preferred Directors, has not reasonably determined that such Major Investor is (ora competitor of the Company; and provided further, that in the case of a Major Investor that is an individualno event may Arix, is employed by or serves as a consultant to) MPM, New Leaf and Taiho be determined to be a competitor of the Company:
(a) as soon as practicable, but in any event within one hundred twenty ninety (12090) days after the end of each fiscal year of the Company, (i) a balance sheet as of the end of such year, ; (ii) statements of income and of cash flows for such year, and a comparison between (x) the actual amounts as of and for such fiscal year and (y) the comparable amounts for the prior year and as included in the Budget (as defined in Subsection 3.1(e)) for such year, with an explanation of any material differences between such amounts and a schedule as to the sources and applications of funds for such year, ; and (iii) a statement of stockholders’ equity as of the end of such year, all such financial statements audited and certified by independent public accountants selected by the Company and approved by acceptable to the Board of Directors, including a majority of the Preferred Directors;
(b) as soon as practicable, but in any event within forty-five (45) days after the end of each of the first three (3) quarters of each fiscal year of the Company, unaudited statements of income and of cash flows for such fiscal quarter, and an unaudited balance sheet and a statement of stockholders’ equity as of the end of such fiscal quarter, all prepared in accordance with GAAP (except that such financial statements may (i) be subject to normal year-end audit adjustments adjustments; and (ii) not contain all notes thereto that may be required in accordance with GAAP);
(c) as soon as practicable, but in any event within forty-five (45) days after the end of each of the first three (3) quarters of each fiscal year of the Company, a statement showing the number of shares of each class and series of capital stock and securities convertible into or exercisable for shares of capital stock outstanding at the end of the period, the Common Stock issuable upon conversion or exercise of any outstanding securities convertible or exercisable for Common Stock and the exchange ratio or exercise price applicable thereto, and the number of shares of issued stock options and stock options not yet issued but reserved for issuance, if any, all in sufficient detail as to permit any each Major Investor to calculate its percentage equity ownership in the Company, and certified by the chief financial officer or chief executive officer of the Company as being true, complete and correct;
(d) as soon as practicable, but in any event thirty (30) days before the end of each fiscal year, a budget and business plan for the next fiscal year (collectively, the “Budget”), approved by the Board of Directors Directors, including a majority of the Preferred Directors, and prepared on a quarterly monthly basis, including balance sheets, income statements, and statements of cash flow for such quarters months and, promptly after prepared, any other budgets or revised budgets prepared by the Company; and
(e) such other information relating to as soon as practicable following their completion, any reports or analyses concerning the financial condition, business, prospects or corporate affairs fair market value of the Company’s Common Stock, whether prepared by Company as any Major Investor may from time to time reasonably request; provided, however, that the Company shall not be obligated under this Subsection 3.1 to provide information (i) that the Company reasonably determines in good faith to be a trade secret employees or confidential information (unless covered by an enforceable confidentiality agreement, in form acceptable to the Company) or (ii) the disclosure of which would adversely affect the attorney-client privilege between the Company and its counselthird parties. If, for any period, the Company has any subsidiary whose accounts are consolidated with those of the Company, then in respect of such period the financial statements delivered pursuant to the foregoing sections shall be the consolidated and consolidating financial statements of the Company and all such consolidated subsidiaries. Notwithstanding anything else in this Subsection 3.1 to the contrary, the Company may cease providing the information set forth in this Subsection 3.1 during the period starting with the date sixty thirty (6030) days before the Company’s good-faith estimate of the date of filing of a registration statement if it reasonably concludes it must do so to comply with the SEC rules applicable to such registration statement and related offering; provided that the Company’s covenants under this Subsection 3.1 shall be reinstated at such time as the Company is no longer actively employing its commercially reasonable efforts to cause such registration statement to become effective.
Appears in 1 contract
Sources: Investors’ Rights Agreement (Harpoon Therapeutics, Inc.)
Delivery of Financial Statements. The Company shall deliver to each Major Investor; provided, provided that the Board of Directors has not reasonably determined that such Major Investor is (or, in the case of a Major Investor that is an individual, is employed by or serves as a consultant to) a competitor of the Company:
(a) as soon as practicable, but in any event within one hundred twenty eighty (120180) days after the end of each fiscal year of the Company, (i) a balance sheet and income statement and a statement of stockholder’s equity as of the end last day of such year, (ii) statements of income and ; a statement of cash flows for such year, year and a comparison between (x) the actual amounts as of and figures for such fiscal year and (y) year, the comparable amounts figures for the prior year and as the comparable figures included in the Budget (as defined in Subsection 3.1(e)below) for such year, with an explanation of any material differences between such amounts them and a schedule as to the sources and applications of funds for such year, and (iii) a statement of stockholders’ equity as of the end of such year-end financial reports to be in reasonable detail, all such financial statements prepared in accordance with GAAP, and audited and certified by independent public accountants of nationally recognized standing selected by the Company and approved by the Board of Directors, including the Preferred DirectorsCompany;
(b) as soon as practicable, but in any event within forty-forty five (45) days after the end of each of the first three (3) quarters of each fiscal year of the Company, an unaudited statements income statement, schedule as to the sources and application of income and of cash flows funds for such fiscal quarter, and an unaudited balance sheet and a statement of stockholders’ stockholder’s equity as of the end of such fiscal quarter, all prepared in accordance with GAAP (except that such financial statements may (i) be subject to normal year-end audit adjustments and (ii) not contain all notes thereto that may be required in accordance with GAAP);
(c) as soon as practicable, but in any event within with forty-five (45) days after the end of each of the first three (3) quarters of each fiscal year of the Company, (i) a detailed capitalization table and (ii) a statement showing the number of shares of each class and series of capital stock and securities convertible into or exercisable for shares of capital stock outstanding at the end of the period, the Common Stock number of common shares issuable upon conversion or exercise of any outstanding securities convertible or exercisable for Common Stock common shares and the exchange ratio or exercise price applicable thereto, thereto and the number of shares of issued stock options and stock options not yet issued but reserved for issuance, if any, all in sufficient detail as to permit any each Major Investor to calculate its percentage equity ownership in the Company, Company and certified by the chief financial officer Chief Financial Officer or chief executive officer Chief Executive Officer of the Company as being true, complete and correct;
(d) as soon as practicable, but in any event within thirty (30) days before of the end of each month, an unaudited income statement, an unaudited profit or loss statement and an unaudited balance sheet as of the end of such month;
(e) as soon as practicable, but in any event thirty (30) days prior to the end of each fiscal year, a budget and business plan for the next fiscal year (collectively, the “Budget”), approved by the Board of Directors and prepared on a quarterly monthly basis, including balance sheets, income statements, sheets and sources and applications of funds statements of cash flow for such quarters months and, promptly after as soon as prepared, any other budgets or revised budgets prepared by the Company; and;
(ef) with respect to the financial statements called for in subsections (a), (b) and (d) of this Section 3.1, an instrument executed by the Chief Financial Officer and President or Chief Executive Officer of the Company and certifying that such financials were prepared in accordance with GAAP consistently applied with prior practice for earlier periods (with the exception for unaudited statements of footnotes that may be required by GAAP) and fairly present the financial condition of the Company and its results of operation for the periods specified therein, subject for unaudited statements to year-end audit adjustment;
(g) such other information relating to the financial condition, business, prospects or corporate affairs of the Company or any of its subsidiaries as the Major Investor or any assignee of the Major Investor may from time to time reasonably request; , provided, however, that the Company shall not be obligated under this Subsection subsection (g) or any other subsection of Section 3.1 to provide information (i) that provide information which the Company reasonably determines deems in good faith to be a trade secret or similar confidential information (unless in the case of an assignee of a Major Investor covered by an enforceable confidentiality agreement, in form acceptable to the Company) or (ii) the disclosure of which would adversely affect the attorney-client privilege between the Company and its counsel. If, ; and
(h) if for any period, period the Company has shall have any subsidiary whose accounts are consolidated with those of the Company, then in respect of such period the financial statements delivered pursuant to the foregoing sections shall be the consolidated and consolidating financial statements of the Company and all such consolidated subsidiaries. .
(i) Notwithstanding anything else in this Subsection Section 3.1 to the contrary, (A) the Company may cease providing the information set forth in this Subsection Section 3.1 during the period starting with the date sixty (60) days before prior to the Company’s good-good faith estimate of the date of filing of, and ending on a date one hundred eighty (180) days after the effective date of a the registration statement if it reasonably concludes it must do so to comply with effecting the SEC rules applicable to such registration statement and related offeringIPO; provided that the Company’s covenants under this Subsection 3.1 shall be reinstated at such time as the Company is no longer actively employing its commercially reasonable best efforts to cause such registration statement to become effectiveeffective and (B) the deadline for delivery of audited and certified financial statements as set forth in Section 3.1 above may be extended by the Board of Directors, including the approval of a majority of the Preferred Directors.
Appears in 1 contract
Delivery of Financial Statements. The Company shall deliver to each Major Investor, provided that the Board of Directors has not reasonably determined that such Major Investor is (or, in the case of a Major Investor that is an individual, is employed by or serves as a consultant to) a competitor of the Company:
(a) as soon as practicable, but in any event within one hundred twenty (120) 90 days after the end of each fiscal year of the Company, (i) a an unaudited balance sheet as of the end of such year, (ii) unaudited statements of income and of cash flows for such year, and a comparison between (x) the actual amounts as of and for such fiscal year and (y) the comparable amounts for the prior year and as included in the Budget (as defined in Subsection 3.1(e)) for such year, with an explanation of any material differences between such amounts and a schedule as to the sources and applications of funds for such year, and (iii) a statement of stockholders’ equity as of the end of such year, all such financial statements audited and certified by independent public accountants selected by the Company and approved by the Board of Directors, including the Preferred Directors;.
(b) as soon as practicable, but in any event within forty-five (45) 45 days after the end of each of the first three (3) quarters of each fiscal year of the Company, unaudited statements of income and of cash flows for such fiscal quarter, and an unaudited balance sheet and a statement of stockholders’ equity as of the end of such fiscal quarter, all prepared in accordance with GAAP (except that such financial statements may (i) be subject to normal year-end audit adjustments and (ii) not contain all notes thereto that may be required in accordance with GAAP);; and
(c) as soon as practicable, but in any event within forty-five (45) 45 days after the end of each of the first three (3) quarters quarter of each fiscal year of the Company, a statement showing the number of shares of each class and series of capital stock and securities convertible into or exercisable for shares of capital stock outstanding at the end of the period, the Common Stock issuable upon conversion or exercise of any outstanding securities convertible or exercisable for Common Stock and the exchange ratio or exercise price applicable thereto, and the number of shares of issued stock options and stock options not yet issued but reserved for issuance, if any, all in sufficient detail as to permit any the Major Investor Investors to calculate its their respective percentage equity ownership in the Company, and certified by the chief financial officer or chief executive officer of the Company as being true, complete complete, and correct;
(d) as soon as practicable, but in any event thirty (30) days before the end of each fiscal year, a budget and business plan for the next fiscal year (collectively, the “Budget”), approved by the Board of Directors and prepared on a quarterly basis, including balance sheets, income statements, and statements of cash flow for such quarters and, promptly after prepared, any other budgets or revised budgets prepared by the Company; and
(e) such other information relating to the financial condition, business, prospects or corporate affairs of the Company as any Major Investor may from time to time reasonably request; provided, however, that the Company shall not be obligated under this Subsection 3.1 to provide information (i) that the Company reasonably determines in good faith to be a trade secret or confidential information (unless covered by an enforceable confidentiality agreement, in form acceptable to the Company) or (ii) the disclosure of which would adversely affect the attorney-client privilege between the Company and its counsel. If, for any period, the Company has any subsidiary whose accounts are consolidated with those of the Company, then in respect of such period the financial statements delivered pursuant to the foregoing sections Sections shall be the consolidated and consolidating financial statements of the Company and all such consolidated subsidiaries. Notwithstanding anything else in this Subsection Section 3.1 to the contrary, the Company may cease providing the information set forth in this Subsection Section 3.1 during the period starting with the date sixty (60) 30 days before the Company’s good-faith estimate of the date of filing of a registration statement if it reasonably concludes it must do so to comply with the SEC rules applicable to such registration statement and related offering; provided that the Company’s covenants under this Subsection Section 3.1 shall be reinstated at such time as the Company is no longer actively employing its commercially reasonable efforts to cause such registration statement to become effective.
Appears in 1 contract
Sources: Investors' Rights Agreement (Sequoia Vaccines, Inc.)
Delivery of Financial Statements. The Upon request of any Major Investor or CDF, the Company shall deliver to each Major Investor, provided that the Board of Directors has not reasonably determined that such Major Investor or CDF, as the case may be, the following provided that such information is (ori) not publicly available and (ii) reasonably necessary to protect or otherwise manage such Major Investor’s or CDF’s, as the case may be, interest in the case of a Company as determined in good faith by such Major Investor that is an individualor CDF, is employed by or serves as a consultant to) a competitor of the Companycase may be:
(a) as soon as practicable, but in any event within one hundred twenty ninety (12090) days after the end of each fiscal year of the Company, Company (i) a balance sheet as of the end of such year, (ii) statements of income and of cash flows for such year, and a comparison between (x) the actual amounts as of and for such fiscal year and (y) the comparable amounts for the prior year and as included in the Budget (as defined in Subsection 3.1(e3.1(d)) for such year, with an explanation of any material differences between such amounts and a schedule as to the sources and applications of funds for such year, and (iii) a statement of stockholders’ equity as of the end of such year, all such financial statements audited and certified by independent public accountants selected by the Company and approved by the Board of Directors, including the Preferred Directors;
(b) as soon as practicable, but in any event within forty-five (45) days after the end of each of the first three (3) quarters of each fiscal year of the Company, unaudited statements of income and of cash flows for such fiscal quarter, and an unaudited balance sheet and a statement of stockholders’ equity as of the end of such fiscal quarter, all prepared in accordance with GAAP (except that such financial statements may (i) be subject to normal year-year- end audit adjustments adjustments; and (ii) not contain all notes thereto that may be required in accordance with GAAP);
(c) as soon as practicable, but in any event within forty-five (45) days after the end of each of the first three (3) quarters of each fiscal year of the Company, a statement showing the number of shares of each class and series of capital stock and securities convertible into or exercisable for shares of capital stock outstanding at the end of the period, the Common Stock issuable upon conversion or exercise of any outstanding securities convertible or exercisable for Common Stock and the exchange ratio or exercise price applicable thereto, and the number of shares of issued stock options and stock options not yet issued but reserved for issuance, if any, all in sufficient detail as to permit any such Major Investor or CDF, as the case may be, to calculate its their respective percentage equity ownership in the Company, and certified by the chief financial officer or chief executive officer of the Company as being true, complete complete, and correct;
(d) as soon as practicable, but in any event thirty (30) days before the end of each fiscal year, a budget and business plan for the next fiscal year (collectively, the “Budget”), approved by the Board of Directors and prepared on a quarterly monthly basis, including balance sheets, income statements, and statements of cash flow for such quarters months and, promptly after prepared, any other budgets or revised budgets prepared by the Company;
(e) copies of all materials sent to the Company’s stockholders at the same time as such materials are delivered to such stockholders and copies of all OTC Pink basic disclosure documents prepared by the Company and all related financial statements and officer certifications when filed with OTC Markets, Inc., provided that such disclosure documents and financial information when filed with OTC Markets, Inc. shall satisfy the information requirements of Sections 3.1 (a), (b) and (c); and
(ef) such other publicly available information relating to the financial condition, business, prospects prospects, or corporate affairs of the Company as any such Major Investor or CDF may from time to time reasonably request; provided, however, that the Company shall not be obligated under this Subsection Section 3.1 to provide information (i) that the Company reasonably determines in good faith to be a trade secret or confidential information (unless covered by an enforceable confidentiality agreement, in a form acceptable to the Company) ); or (ii) the disclosure of which would adversely affect the attorney-client privilege between the Company and its counsel. If, for any period, the Company has any subsidiary whose accounts are consolidated with those of the Company, then in respect of such period the financial statements delivered pursuant to the foregoing sections Sections shall be the consolidated and consolidating financial statements of the Company and all such consolidated subsidiaries. Notwithstanding anything else in this Subsection Section 3.1 to the contrary, the Company may cease providing the information set forth in this Subsection Section 3.1 during the period starting with the date sixty thirty (6030) days before the Company’s good-faith estimate of the date of filing of a registration statement if it reasonably concludes it must do so to comply with the SEC rules applicable to such registration statement and related offering; provided that the Company’s covenants under this Subsection Section 3.1 shall be reinstated at such time as the Company is no longer actively employing its commercially reasonable efforts to cause such registration statement to become effective. The Company agrees that it will not provide any material non-public information to any such Major Investor or CDF in response to a request for information pursuant to this Section 3.1 without first obtaining the consent from such Investor or CDF, as the case may be.
Appears in 1 contract
Sources: Common Stock Purchase Agreement (Celsius Holdings, Inc.)
Delivery of Financial Statements. The Company shall deliver to each Major Investor, provided that the Board of Directors has not reasonably determined that such Major Investor is (or, in the case of a Major Investor that is an individual, is employed by or serves as a consultant to) a competitor Competitor of the Company:
(a) as soon as practicable, but in any event within one hundred twenty (120) 120 days after the end of each fiscal year of the Company, Company (i) a balance sheet as of the end of such year, (ii) statements of income and of cash flows for such year, and a comparison between (x) the actual amounts as of and for such fiscal year and (y) the comparable amounts for the prior year and as included in the Budget (as defined in Subsection 3.1(e)) for such year, with an explanation of any material differences between such amounts and a schedule as to the sources and applications of funds for such year, and (iii) a statement of stockholders’ equity as of the end of such year, all which may be satisfied by filing such financial statements audited and certified by independent public accountants selected by information with the Company and approved by the Board of DirectorsSEC on a Form 1-K (Annual Report), including the Preferred Directorsif applicable;
(b) as soon as practicable, but in any event within forty-five (45) 45 days after the end of each of the first three (3) quarters of each fiscal year of the Company, unaudited statements of income and of cash flows for such fiscal quarter, and an unaudited balance sheet and a statement of stockholders’ equity as of the end of such fiscal quarter, all prepared in accordance with GAAP (except that such financial statements may (i) be subject to normal year-end audit adjustments adjustments; and (ii) not contain all notes thereto that may be required in accordance with GAAP);
(c) if requested by a Major Investor, as soon as practicable, but in any event within forty-forty five (45) days after the end of each of the first three (3) quarters of each fiscal year of the CompanyCompany(provided that a Major Investor may not make such request for itself more than once per each such quarter), a statement showing the number of shares of each class and series of capital stock and securities convertible into or exercisable for shares of capital stock outstanding at the end of the period, the Common Stock issuable upon conversion or exercise of any outstanding securities convertible or exercisable for Common Stock and the exchange ratio or exercise price applicable thereto, and the number of shares of issued stock options and stock options not yet issued but reserved for issuance, if any, all in sufficient detail as to permit any the Major Investor Investors to calculate its their respective percentage equity ownership in the Company, and certified by the chief financial officer or chief executive officer of the Company as being true, complete complete, and correct;; and
(d) if requested by a Major Investor, as soon as practicable, but in any event thirty (30) 30 days before the end of each fiscal year, a budget and business plan for the next fiscal year (collectively, the “Budget”), approved by the Board of Directors and prepared on a quarterly monthly basis, including balance sheets, income statements, and statements of cash flow for such quarters months and, promptly after prepared, any other budgets or revised budgets prepared by the Company; and
(e) such other information relating to the financial condition, business, prospects or corporate affairs of the Company as any Major Investor may from time to time reasonably request; provided, however, that the Company shall not be obligated under this Subsection 3.1 to provide information (i) that the Company reasonably determines in good faith to be a trade secret or confidential information (unless covered by an enforceable confidentiality agreement, in form acceptable to the Company) or (ii) the disclosure of which would adversely affect the attorney-client privilege between the Company and its counsel. If, for any period, the Company has any subsidiary whose accounts are consolidated with those of the Company, then in respect of such period the financial statements delivered pursuant to the foregoing sections shall be the consolidated and consolidating financial statements of the Company and all such consolidated subsidiaries. Notwithstanding anything else in this Subsection 3.1 to the contrary, the Company may cease providing the information set forth in this Subsection 3.1 during the period starting with the date sixty (60) 60 days before the Company’s good-faith estimate of the date of filing of a registration statement if it reasonably concludes it must do so to comply with the SEC rules applicable to such registration statement and related offering; provided that the Company’s covenants under this Subsection 3.1 shall be reinstated at such time as the Company is no longer actively employing its commercially reasonable efforts to cause such registration statement to become effective.
Appears in 1 contract
Delivery of Financial Statements. The For so long as an Investor, together with its Affiliates, holds at least twenty-five percent (25%) of the then outstanding shares of Series X Preferred Stock, the Company shall deliver to each Major Investorsuch Investor (provided any such information shall be deemed to have been delivered to such Investor if filed with the SEC on its Electronic Data Gathering, provided that the Board of Directors has not reasonably determined that such Major Investor is Analysis, and Retrieval (or, in the case of a Major Investor that is an individual, is employed by or serves as a consultant to▇▇▇▇▇) a competitor of the Company:system):
(a) as soon as practicable, but in any event within one hundred twenty ninety (12090) days after the end of each fiscal year of the Company, Company (i) a balance sheet as of the end of such year, (ii) statements of income and of cash flows for such year, and a comparison between (x) the actual amounts as of and for such fiscal year and (y) the comparable amounts for the prior year and as included in the Budget (as defined in Subsection 3.1(e3.2(e)) for such year, with an explanation of any material differences between such amounts and a schedule as to the sources and applications of funds for such year, and (iii) a statement of stockholders’ equity as of the end of such year, all such financial statements audited and certified by independent public accountants of nationally recognized standing selected by the Company and approved by the Board of Directors, including the Preferred DirectorsCompany;
(b) as soon as practicable, but in any event within forty-five (45) days after the end of each of the first three (3) quarters of each fiscal year of the Company, unaudited statements of income and of cash flows for such fiscal quarter, and an unaudited balance sheet and a statement of stockholders’ equity as of the end of such fiscal quarter, all prepared in accordance with GAAP (except that such financial statements may (i) be subject to normal year-end audit adjustments adjustments; and (ii) not contain all notes thereto that may be required in accordance with GAAP);
(c) as soon as practicable, but in any event within forty-five (45) days after the end of each of the first three (3) quarters of each fiscal year of the Company, a statement showing the number of shares of each class and series of capital stock and securities convertible into or exercisable for shares of capital stock outstanding at the end of the period, the Common Stock issuable upon conversion or exercise of any outstanding securities convertible or exercisable for Common Stock and the exchange ratio or exercise price applicable thereto, and the number of shares of issued stock options and stock options not yet issued but reserved for issuance, if any, all in sufficient detail as to permit any Major Investor the Investors to calculate its their respective percentage equity ownership in the Company, and certified by the chief financial officer or chief executive officer of the Company as being true, complete complete, and correct;
(d) as soon as practicable, but in any event within thirty (30) days of the end of each month, an unaudited income statement and statement of cash flows for such month, and an unaudited balance sheet and statement of stockholders’ equity as of the end of such month, all prepared in accordance with GAAP (except that such financial statements may (i) be subject to normal year-end audit adjustments and (ii) not contain all notes thereto that may be required in accordance with GAAP);
(e) as soon as practicable, but in any event thirty (30) days before the end of each fiscal year, a budget and business plan for the next fiscal year (collectively, the “Budget”), approved by the Board of Directors and prepared on a quarterly monthly basis, including balance sheets, income statements, and statements of cash flow for such quarters months and, promptly after prepared, any other budgets or revised budgets prepared by the Company;
(f) with respect to the financial statements called for in Subsection 3.2(a), Subsection 3.2(b) and Subsection 3.2(d), an instrument executed by the chief financial officer and chief executive officer of the Company certifying that such financial statements were prepared in accordance with GAAP consistently applied with prior practice for earlier periods (except as otherwise set forth in Subsection 3.2(b) and Subsection 3.2(d)) and fairly present the financial condition of the Company and its results of operation for the periods specified therein; and
(eg) such other information relating to the financial condition, business, prospects prospects, or corporate affairs of the Company as any Major Investor the Investors may from time to time reasonably request, including any information that the Investors may reasonably request with respect to the Company’s current and accumulated earnings and profits for U.S. federal income tax purposes; provided, however, that the Company shall not be obligated under this Subsection 3.1 3.2(g) to provide information (i) that the Company reasonably determines in good faith to be a trade secret or confidential information (unless covered by an enforceable confidentiality agreement, in a form acceptable to the Company) ); or (ii) the disclosure of which would adversely affect the attorney-client privilege between the Company and its counsel. If, for any period, the Company has any subsidiary Subsidiary whose accounts are consolidated with those of the Company, then in respect of such period the financial statements delivered pursuant to the foregoing sections shall be the consolidated and consolidating financial statements of the Company and all such consolidated subsidiariesSubsidiaries. Notwithstanding anything else in this Subsection 3.1 3.2 to the contrary, the Company may cease providing the information set forth in this Subsection 3.1 3.2 during the period starting with the date sixty (60) days before the Company’s good-faith estimate of the date of filing of a registration statement if it reasonably concludes it must do so to comply with the SEC rules applicable to such registration statement and related offering; provided that the Company’s covenants under this Subsection 3.1 3.2 shall be reinstated at such time as the Company is no longer actively employing its commercially reasonable efforts to cause such registration statement to become effective.
Appears in 1 contract
Sources: Series X Preferred Investor Rights Agreement (InterPrivate III Financial Partners Inc.)
Delivery of Financial Statements. The Company shall deliver to each Major Investor, provided that the Board of Directors has not reasonably determined that such Major Investor is (or, in the case of a Major Investor that is an individual, is employed by or serves as a consultant to) a competitor Competitor of the Company:
(a) as soon as practicable, but in any event within one hundred twenty (120) 90 days after the end of each fiscal year of the Company, Company (i) a balance sheet as of the end of such year, (ii) statements of income and of cash flows for such year, and a comparison between (x) the actual amounts as of and for such fiscal year and (y) the comparable amounts for the prior year and as included in the Budget (as defined in Subsection Section 3.1(e)) for such year, with an explanation of any material differences between such amounts and a schedule as to the sources and applications of funds for such year, and (iii) a statement of stockholders’ equity as of the end of such year, all such financial statements audited and certified by independent public accountants of nationally recognized standing selected by the Company and approved by the Board of Directors, including the Preferred DirectorsCompany;
(b) as soon as practicable, but in any event within forty-five (45) 45 days after the end of each of the first three (3) quarters quarter of each fiscal year of the Company, unaudited statements of income and of cash flows for such fiscal quarter, and an unaudited balance sheet and a statement of stockholders’ equity as of the end of such fiscal quarter, all prepared in accordance with GAAP (except that such financial statements may (i) be subject to normal year-end audit adjustments adjustments; and (ii) not contain all notes thereto that may be required in accordance with GAAP);
(c) as soon as practicable, but in any event within forty-five thirty (4530) days after the end of each month, unaudited statements of income and of cash flows for such month, and an unaudited balance sheet and a statement of shareholders’ equity as of the first three end of such month, all prepared in accordance with GAAP (3except that such financial statements may (i) quarters be subject to normal year-end audit adjustments and (ii) not contain all notes thereto that may be required in accordance with GAAP);
(d) as soon as practicable, but in any event within 45 days after the end of each quarter of each fiscal year of the CompanyCompany and upon request, a statement showing the number of shares of each class and series of capital stock and securities convertible into or exercisable for shares of capital stock outstanding at the end of the period, the Common Stock issuable upon conversion or exercise of any outstanding securities convertible or exercisable for Common Stock and the exchange ratio or exercise price applicable thereto, and the number of shares of issued stock options and stock options not yet issued but reserved for issuance, if any, all in sufficient detail as to permit any the Major Investor Investors to calculate its their respective percentage equity ownership in the Company, and certified by the chief financial officer or chief executive officer of the Company as being true, complete and correct;
(de) as soon as practicable, but in any event thirty (30) 45 days before the end of each fiscal year, a budget and business plan for the next fiscal year (collectively, the “Budget”), ) approved by the Board of Directors and prepared on a quarterly monthly basis, including balance sheets, income statements, statements and statements of cash flow flows for such quarters months and, promptly after prepared, any other budgets or revised budgets prepared by the Company;
(f) with respect to the financial statements called for in Section 3.1(a), Section 3.1(b) and Section 3.1(c), an instrument executed by the chief financial officer and chief executive officer of the Company certifying that such financial statements were prepared in accordance with GAAP consistently applied with prior practice for earlier periods (except as otherwise set forth in Section 3.1(b) and Section 3.1(c)) and fairly present the financial condition of the Company and its results of operation for the periods specified therein; and
(eg) such other information relating to the financial condition, business, prospects prospects, or corporate affairs of the Company as any Major Investor may from time to time reasonably request; provided, however, that the Company shall not be obligated under this Subsection Section 3.1 to provide information (i) that the Company reasonably determines in good faith to be a trade secret or confidential information (unless covered by an enforceable confidentiality agreement, in a form acceptable to the Company) ); or (ii) the disclosure of which would adversely affect the attorney-client privilege between the Company and its counsel. If, for any period, the Company has any subsidiary whose accounts are consolidated with those of the Company, then in respect of such period the financial statements delivered pursuant to the foregoing sections shall be the consolidated and consolidating financial statements of the Company and all such consolidated subsidiaries. Notwithstanding anything else in this Subsection Section 3.1 to the contrary, the Company may cease providing the information set forth in this Subsection Section 3.1 during the period starting with the date sixty (60) 30 days before the Company’s good-faith estimate of the date of filing of a registration statement if it reasonably concludes it must do so to comply with the SEC rules applicable to such registration statement and related offering; provided that the Company’s covenants under this Subsection Section 3.1 shall be reinstated at such time as the Company is no longer actively employing its commercially reasonable efforts to cause such registration statement to become effective.
Appears in 1 contract
Sources: Investors’ Rights Agreement (Terns Pharmaceuticals, Inc.)
Delivery of Financial Statements. The Company shall deliver to each Major the Investor, provided that the Board of Directors has not reasonably determined that such Major Investor is (or, in the case of a Major Investor that is an individual, is employed by or serves as a consultant to) a competitor of the Company:
(a) as soon as practicable, but in any event within one hundred twenty forty-five (12045) days after the end of each fiscal year of the Company, (i) a an unaudited balance sheet as of the end of such year, (ii) unaudited statements of income and of cash flows for such year, and a comparison between (x) the actual amounts as of and for such fiscal year and (y) the comparable amounts for the prior year and as included in the Budget (as defined in Subsection 3.1(e)) for such year, with an explanation of any material differences between such amounts and a schedule as to the sources and applications of funds for such year, and (iii) a an unaudited statement of stockholders’ ' equity as of the end of such year, all such financial statements audited and certified by independent public accountants selected by the Company and approved by the Board of Directors, including the Preferred Directors;
(b) as soon as practicable, but in any event within forty-forty five (45) days after the end of each of the first three (3) quarters of each fiscal year of the Company, unaudited statements of income and of cash flows for such fiscal quarter, and an unaudited balance sheet and a statement of stockholders’ ' equity as of the end of such fiscal quarter, all prepared in accordance with GAAP (except that such financial statements may (i) be subject to normal year-end audit adjustments and (ii) shall not contain all notes thereto that may be required in accordance with GAAP);
(c) as soon as practicable, but in any event within forty-five (45) days after the end of each of the first three (3) quarters of each fiscal year of the Company, a statement showing the number of shares of each class and series of capital stock and securities convertible into or exercisable for shares of capital stock outstanding at the end of the period, the Common Stock issuable upon conversion or exercise of any outstanding securities convertible or exercisable for Common Stock and the exchange ratio or exercise price applicable thereto, and the number of shares of issued stock options and stock options not yet issued but reserved for issuance, if any, all in sufficient detail as to permit any Major the Investor to calculate its respective percentage equity ownership in the Company, and certified by the chief financial officer or chief executive officer of the Company as being true, complete and correct;; and
(d) as soon as practicable, but in any event thirty (30) days before the end of each fiscal year, a budget and business plan for the next fiscal year (collectively, the “Budget”), approved by the Board of Directors and prepared on a quarterly basis, including balance sheets, income statements, and statements of cash flow for such quarters and, promptly after prepared, any other budgets or revised budgets prepared by the Company; and
(e) such other information relating with respect to the financial conditionstatements called for in Section 9.1(a) and Section 9.1(b), business, prospects or corporate affairs an instrument executed by the chief financial officer and chief executive officer of the Company certifying that such financial statements were prepared in accordance with GAAP consistently applied with prior practice for earlier periods (except as any Major Investor may from time to time reasonably request; provided, however, that otherwise set forth in Section 9.1(b)) and fairly present the Company shall not be obligated under this Subsection 3.1 to provide information (i) that the Company reasonably determines in good faith to be a trade secret or confidential information (unless covered by an enforceable confidentiality agreement, in form acceptable to the Company) or (ii) the disclosure financial condition of which would adversely affect the attorney-client privilege between the Company and its counselresults of operation for the periods specified therein. If, for any period, the Company has any subsidiary whose accounts are consolidated with those of the Company, then in respect of such period the financial statements delivered pursuant to the foregoing sections shall be the consolidated and consolidating financial statements of the Company and all such consolidated subsidiaries. Notwithstanding anything else in this Subsection 3.1 Section 9.1 to the contrary, the Company may cease providing the information set forth in this Subsection 3.1 Section 9.1 during the period starting with the date sixty (60) days before the Company’s 's good-faith estimate of the date of filing of a registration statement if it reasonably concludes it must do so to comply with the SEC rules applicable to such registration statement and related offering; provided that provided, however, the Company’s 's covenants under this Subsection 3.1 Section 9.1 shall be reinstated at such time as the Company is no longer actively employing its commercially reasonable efforts to cause such registration statement to become effective.
Appears in 1 contract
Delivery of Financial Statements. The For so long as at least fifteen percent (15%) of the Company’s originally issued Preferred Stock is outstanding, the Company shall deliver to each Major Investor, ; provided that the Board of Directors has not reasonably determined that such Major Investor is (or, in the case of a Major Investor that is an individual, is employed by or serves as a consultant to) a competitor of the Company:
(a) as soon as practicable, but in any event within one hundred twenty (120) days after the end of each fiscal year of the Company, Company (i) a balance sheet as of the end of such year, (ii) statements of income and of cash flows for such year, and a comparison between (x) the actual amounts as of and for such fiscal year and (y) the comparable amounts for the prior year and as included in the Budget (as defined in Subsection 3.1(e)) for such year, with an explanation of any material differences between such amounts and a schedule as to the sources and applications of funds for such year, and (iii) a statement of stockholders’ equity as of the end of such year, all such financial statements audited and certified by independent public accountants of nationally recognized standing selected by the Company and approved by the Board of Directors, including Directors of the Preferred DirectorsCompany (or the Audit Committee thereof);
(b) as soon as practicable, but in any event within forty-five thirty (4530) days after the end of each of the first three (3) quarters of each fiscal year of the Company, unaudited statements of income and of cash flows for such fiscal quarter, and an unaudited balance sheet and a statement of stockholders’ equity as of the end of such fiscal quarter, all prepared in accordance with GAAP (except that such financial statements may (i) be subject to normal year-end audit adjustments and (ii) not contain all notes thereto that may be required in accordance with GAAP);
(c) as soon as practicable, but in any event within forty-five (45) days after the end of each of the first three (3) quarters of each fiscal year quarter of the Company, a statement showing the number of shares of each class and series of capital stock and securities convertible into or exercisable for shares of capital stock outstanding at the end of the period, the Common Stock issuable upon conversion or exercise of any outstanding securities convertible or exercisable for Common Stock and the exchange ratio or exercise price applicable thereto, and the number of shares of issued stock options and stock options not yet issued but reserved for issuance, if any, all in sufficient detail as to permit any the Major Investor Investors to calculate its their respective percentage equity ownership in the Company;
(c) as soon as practicable, but in any event within forty-five (45) days after the end of each of the first three (3) quarters of each fiscal year of the Company, unaudited statements of income and cash flows for such fiscal quarter, and certified by the chief financial officer or chief executive officer an unaudited balance sheet as of the Company as being trueend of such fiscal quarter, complete all prepared in accordance with GAAP (except that such financial statements may (i) be subject to normal year-end audit adjustments; and correct(ii) not contain all notes thereto that may be required in accordance with GAAP);
(d) as soon as practicable, but in any event within thirty (30) days before of the end of each month, an unaudited income statement for such month, and an unaudited balance sheet as of the end of such month, all prepared in accordance with GAAP (except that such financial statements may (i) be subject to normal year-end audit adjustments and (ii) not contain all notes thereto that may be required in accordance with GAAP);
(e) as soon as practicable following the final meeting of the Board of Directors of each fiscal year (and in no event later than the earlier to occur of (i) the date that is fifteen (15) days following such meeting and (ii) the last day of such fiscal year), a budget and business plan for the next fiscal year (collectively, the “Budget”)) approved at such meeting, approved by the Board of Directors and prepared on a quarterly monthly basis, including balance sheets, income statements, and statements of cash flow for such quarters months and, promptly after prepared, any other budgets or revised budgets prepared by the Company; provided, however, that, notwithstanding the forgoing, the Budget for fiscal year 2017 shall be delivered to each Major Investor on or before January 31, 2017;
(f) with respect to the financial statements called for in Subsection 3.1(a), Subsection 3.1(c) and Subsection 3.1(d), an instrument executed by the chief financial officer and chief executive officer of the Company certifying that such financial statements were prepared in accordance with GAAP consistently applied with prior practice for earlier periods (except as otherwise set forth in Subsection 3.1(c) and Subsection 3.1(d)) and fairly present the financial condition of the Company and its results of operation for the periods specified therein; and
(eg) such other information relating to the financial condition, business, prospects prospects, or corporate affairs of the Company as any Major Investor may from time to time reasonably request; provided, however, that the Company shall not be obligated under this Subsection Section 3.1 to provide information (i) that the Company reasonably determines in good faith to be a trade secret or confidential information (unless covered by an enforceable confidentiality agreement, in a form acceptable to the Company) ); or (ii) the disclosure of which would adversely affect the attorney-client privilege between the Company and its counsel. If, for any period, the Company has any subsidiary whose accounts are consolidated with those of the Company, then in respect of such period the financial statements delivered pursuant to the foregoing sections shall be the consolidated and consolidating financial statements of the Company and all such consolidated subsidiaries. Notwithstanding anything else in this Subsection Section 3.1 to the contrary, the Company may cease providing the information set forth in this Subsection Section 3.1 during the period starting with the date sixty (60) days before the Company’s good-faith estimate of the date of filing of a registration statement if it reasonably concludes it must do so to comply with the SEC rules applicable to such registration statement and related offering; provided that the Company’s covenants under this Subsection Section 3.1 shall be reinstated at such time as the Company is no longer actively employing its commercially reasonable efforts to cause such registration statement to become effective.
Appears in 1 contract
Sources: Investors’ Rights Agreement (scPharmaceuticals Inc.)
Delivery of Financial Statements. The Company shall deliver to each Major Investor, provided that the Board of Directors has not reasonably determined that such Major Investor is (or, in the case of a Major Investor that is an individual, is employed by or serves as a consultant to) a competitor of the Company:
(a) as soon as practicable, but in any event within one hundred twenty ninety (12090) days after the end of each fiscal year of the Company, Company (i) a balance sheet as of the end of such year, (ii) statements of income and of cash flows for such year, and a comparison between (x) the actual amounts as of and for such fiscal year and (y) the comparable amounts for the prior year and as included in the Budget (as defined in Subsection Section 3.1(e)) for such year, with an explanation of any material differences between such amounts and a schedule as to the sources and applications of funds for such year, and (iii) a statement of stockholders’ equity as of the end of such year, all such financial statements audited and certified by independent public accountants selected by the Company and approved by the Board of Directors, including the Preferred DirectorsCompany;
(b) as soon as practicable, but in any event within forty-five (45) days after the end of each of the first three (3) quarters quarter of each fiscal year of the Company, unaudited statements of income and of cash flows for such fiscal quarter, and an unaudited balance sheet and a statement of stockholders’ equity as of the end of such fiscal quarter, all prepared in accordance with GAAP (except that such financial statements may (i) be subject to normal year-end audit adjustments adjustments; and (ii) not contain all notes thereto that may be required in accordance with GAAP);
(c) as soon as practicable, but in any event within forty-five (45) days after the end of each of the first three (3) quarters quarter of each fiscal year of the Company, a statement showing the number of shares of each class and series of capital stock and securities convertible into or exercisable for shares of capital stock outstanding at the end of the period, the Common Stock issuable upon conversion or exercise of any outstanding securities convertible or exercisable for Common Stock and the exchange ratio or exercise price applicable thereto, and the number of shares of issued stock options and stock options not yet issued but reserved for issuance, if any, all in sufficient detail as to permit any the Major Investor Investors to calculate its their respective percentage equity ownership in the Company, and certified by the chief financial officer or chief executive officer of the Company as being true, complete complete, and correct;
(d) as soon as practicable, but in any event within thirty (30) days after the end of each month, an unaudited income statement and statement of cash flows for such month, and an unaudited balance sheet as of the end of such month, all prepared in accordance with GAAP (except that such financial statements may (i) be subject to normal year-end audit adjustments and (ii) not contain all notes thereto that may be required in accordance with GAAP);
(e) as soon as practicable, but in any event thirty (30) days before the end of each fiscal year, a budget and business plan for the next fiscal year (collectivelyyear, the “Budget”), approved by the Board of Directors and prepared on a quarterly monthly basis, including balance sheets, income statements, and statements of cash flow for such quarters months and, promptly after prepared, any other budgets or revised budgets prepared by the CompanyCompany (such budget and business plan that is approved by the Board of Directors is collectively referred to herein as the “Budget”);
(f) with respect to the financial statements called for in Section 3.1(a), Section 3.1(b) and Section 3.1(d), an instrument executed by the chief executive officer of the Company certifying that such financial statements were prepared in accordance with GAAP consistently applied with prior practice for earlier periods (except as otherwise set forth in Section 3.1(b) and Section 3.1(d)) and fairly present the financial condition of the Company and its results of operation for the periods specified therein; and
(eg) such other information relating to the financial condition, business, prospects prospects, or corporate affairs of the Company as any Major Investor may from time to time reasonably request; provided, however, that the Company shall not be obligated under this Subsection Section 3.1 to provide information (i) that the Company reasonably determines in good faith to be a trade secret or confidential information (unless covered by an enforceable confidentiality agreement, in a form acceptable to the Company) ); or (ii) the disclosure of which would adversely affect the attorney-client privilege between the Company and its counsel. If, for any period, the Company has any subsidiary whose accounts are consolidated with those of the Company, then in respect of such period the financial statements delivered pursuant to the foregoing sections shall be the consolidated and consolidating financial statements of the Company and all such consolidated subsidiaries. Notwithstanding anything else in this Subsection 3.1 to the contrary, the Company may cease providing the information set forth in this Subsection 3.1 during the period starting with the date sixty (60) days before the Company’s good-faith estimate of the date of filing of a registration statement if it reasonably concludes it must do so to comply with the SEC rules applicable to such registration statement and related offering; provided that the Company’s covenants under this Subsection 3.1 shall be reinstated at such time as the Company is no longer actively employing its commercially reasonable efforts to cause such registration statement to become effective.
Appears in 1 contract
Delivery of Financial Statements. The Company shall deliver to each Major the Investor, provided that the Board of Directors has not reasonably determined that such Major Investor is (or, in the case of a Major Investor that is an individual, is employed by or serves as a consultant to) a competitor of the Company:
(a) as soon as practicable, but in any event within one hundred twenty and five (120105) days after the end of each fiscal year of the Company, Company (i) a balance sheet as of the end of such year, (ii) statements of income and of cash flows for such year, and a comparison between (x) the actual amounts as of and for such fiscal year and (y) the comparable amounts for the prior year and as included in the Budget (as defined in Subsection Section 3.1(e)) for such year, with an explanation of any material differences between such amounts and a schedule as to the sources and applications of funds for such year, and (iii) a statement of stockholders’ equity as of the end of such year, all such financial statements audited and certified by independent public accountants of regionally recognized standing selected by the Company and approved by the Board of Directors, including the Preferred DirectorsCompany;
(b) as soon as practicable, but in any event within forty-five fifty (4550) days after the end of each of the first three (3) quarters quarter of each fiscal year of the Company, unaudited statements of income and of cash flows for such fiscal quarter, and an unaudited balance sheet and a statement of stockholders’ equity as of the end of such fiscal quarter, all prepared in accordance with GAAP (except that such financial statements may (i) be subject to normal year-end audit adjustments adjustments; and (ii) not contain all notes thereto that may be required in accordance with GAAP);
(c) as soon as practicable, but in any event within forty-five (45) days after the end of each of the first three (3) quarters quarter of each fiscal year of the Company, a statement showing the number of shares of each class and series of capital stock and securities convertible into or exercisable for shares of capital stock outstanding at the end of the period, the Common Stock issuable upon conversion or exercise of any outstanding securities convertible or exercisable for Common Stock and the exchange ratio or exercise price applicable thereto, and the number of shares of issued stock options and stock options not yet issued but reserved for issuance, if any, all in sufficient detail as to permit any Major the Investor to calculate its their respective percentage equity ownership in the Company, and certified by the chief financial officer or chief executive officer of the Company as being true, complete complete, and correct;
(d) as soon as practicable, but in any event thirty (30) days before the end of each fiscal year, a budget and business plan for the next fiscal year (collectivelyyear, the “Budget”), approved by the Board of Directors and prepared on a quarterly monthly basis, including balance sheets, income statements, and statements of cash flow for such quarters months and, promptly after prepared, any other budgets or revised budgets prepared by the CompanyCompany (such budget and business plan that is approved by the Board of Directors is collectively referred to herein as the “Budget”);
(e) with respect to the financial statements called for in Section 3.1(a) and Section 3.1(b), an instrument executed by the chief financial officer and chief executive officer of the Company certifying that such financial statements were prepared in accordance with GAAP consistently applied with prior practice for earlier periods (except as otherwise set forth in Section 3.1(b) and Section 3.1(d)) and fairly present the financial condition of the Company and its results of operation for the periods specified therein; and
(ef) such other information relating to the financial condition, business, prospects prospects, or corporate affairs of the Company as any Major the Investor may from time to time reasonably request; provided, however, that the Company shall not be obligated under this Subsection Section 3.1 to provide information (i) that the Company reasonably determines in good faith to be a trade secret or confidential information (unless covered by an enforceable confidentiality agreement, in a form acceptable to the Company) ); or (ii) the disclosure of which would adversely affect the attorney-client privilege between the Company and its counsel. If, for any period, the Company has any subsidiary whose accounts are consolidated with those of the Company, then in respect of such period the financial statements delivered pursuant to the foregoing sections shall be the consolidated and consolidating financial statements of the Company and all such consolidated subsidiaries. Notwithstanding anything else in this Subsection Section 3.1 to the contrary, the Company may cease providing the information set forth in this Subsection Section 3.1 during the period starting with the date sixty (60) days before the Company’s good-faith estimate of the date of filing of a registration statement if it reasonably concludes it must do so to comply with the SEC rules applicable to such registration statement and related offering; provided that the Company’s covenants under this Subsection Section 3.1 shall be reinstated at such time as the Company is no longer actively employing its commercially reasonable efforts to cause such registration statement to become effective.
Appears in 1 contract
Delivery of Financial Statements. The Company shall deliver to each Major Investor, provided that the Board of Directors has not reasonably determined that such Major Investor is (or, in the case of a Major Investor that is an individual, is employed by or serves as a consultant to) a competitor of the CompanyCompetitor:
(a) as soon as practicable, but in any event within one hundred twenty and eighty (120180) days after the end of each fiscal year of the Company, Company (i) a balance sheet as of the end of such year, (ii) statements of income and of cash flows for such year, and a comparison between (x) the actual amounts as of and for such fiscal year and (y) the comparable amounts for the prior year and as included in the Budget (as defined in Subsection 3.1(e3.1(d)) for such year, with an explanation of any material differences between such amounts and a schedule as to the sources and applications of funds for such year, and (iii) a statement of stockholders’ equity as of the end of such year, all such financial statements audited and certified by independent public accountants selected by the Company and approved by the Board of Directors, Directors (including the approval of the majority of the Preferred Directors); provided that such audit requirement may be waived by the Board of Directors (including the approval of the majority of the Preferred Directors);
(b) as soon as practicable, but in any event within forty-five (45) days after the end of each of the first three (3) quarters quarter of each fiscal year of the Company, unaudited statements of income and of cash flows for such fiscal quarter, and an unaudited balance sheet and a statement of stockholders’ equity as of the end of such fiscal quarter, all prepared in accordance with GAAP (except that such financial statements may (i) be subject to normal year-end audit adjustments adjustments; and (ii) not contain all notes thereto that may be required in accordance with GAAP);
(c) as soon as practicable, but in any event within forty-five (45) days after the end of each of the first three (3) quarters quarter of each fiscal year of the Company, a statement showing the number of shares of each class and series of capital stock and securities convertible into or exercisable for shares of capital stock outstanding at the end of the period, the Common Stock issuable upon conversion or exercise of any outstanding securities convertible or exercisable for Common Stock and the exchange ratio or exercise price applicable thereto, and the number of shares of issued stock options and stock options not yet issued but reserved for issuance, if any, all in sufficient detail as to permit any the Major Investor Investors to calculate its their respective percentage equity ownership in the Company, and certified by the chief financial officer or chief executive officer of the Company as being true, complete complete, and correct;
(d) as soon as practicable, but in any event thirty (30) days before after the end of each fiscal year, a budget and business plan for the next fiscal year (collectively, the “Budget”), approved by the Board of Directors and (including the approval of the majority of the Preferred Directors) prepared on a quarterly monthly basis, including balance sheets, income statements, and statements of cash flow for such quarters months and, promptly after prepared, any other budgets or revised budgets prepared by the Company; and;
(e) such other information relating to the financial condition, business, prospects prospects, or corporate affairs of the Company as any Major Investor may from time to time reasonably request; provided, however, that the Company shall not be obligated under this Subsection 3.1 to provide information (i) that the Company reasonably determines in good faith to be a trade secret or confidential information (unless covered by an enforceable confidentiality agreement, in a form acceptable to the Company) ); or (ii) the disclosure of which would adversely affect the attorney-client privilege between the Company and its counsel. If, for any period, the Company has any subsidiary whose accounts are consolidated with those of the Company, then in respect of such period the financial statements delivered pursuant to the foregoing sections shall be the consolidated and consolidating financial statements of the Company and all such consolidated subsidiaries. Notwithstanding anything else in this Subsection 3.1 to the contrary, the Company may cease providing the information set forth in this Subsection 3.1 during the period starting with the date sixty (60) days before the Company’s good-faith estimate of the date of filing of a registration statement if it reasonably concludes it must do so to comply with the SEC rules applicable to such registration statement and related offering; provided that the Company’s covenants under this Subsection 3.1 shall be reinstated at such time as the Company is no longer actively employing its commercially reasonable efforts to cause such registration statement to become effective.
Appears in 1 contract
Sources: Investors’ Rights Agreement (MBX Biosciences, Inc.)
Delivery of Financial Statements. The Company shall deliver to each Major Investor, provided that the Board of Directors has not reasonably determined that such Major Investor is (or, in the case of a Major Investor that is an individual, is employed by or serves as a consultant to) a competitor Competitor of the Company:
(a) as soon as practicable, but in any event within one hundred twenty ninety (12090) days after the end of each fiscal year of the Company, Company (i) a balance sheet as of the end of such year, (ii) statements of income and of cash flows for such year, and a comparison between (x) the actual amounts as of and for such fiscal year and (y) the comparable amounts for the prior year and as included in the Budget (as defined in Subsection 3.1(e)) for such year, with an explanation of any material differences between such amounts and a schedule as to the sources and applications of funds for such year, and (iii) a statement of stockholders’ equity as of the end of such year, all such financial statements audited and certified by independent public accountants of recognized standing selected by the Company and approved by the Board of Directors, including the Preferred DirectorsCompany;
(b) as soon as practicable, but in any event within forty-five sixty (4560) days after the end of each of the first three (3) quarters of each fiscal year of the Company, unaudited statements of income and of cash flows for such fiscal quarter, and an unaudited balance sheet and a statement of stockholders’ equity as of the end of such fiscal quarter, all prepared in accordance with GAAP (except that such financial statements may (i) be subject to normal year-end audit adjustments adjustments; and (ii) not contain all notes thereto that may be required in accordance with GAAP);
(c) as soon as practicable, but in any event within forty-five sixty (4560) days after the end of each of the first three (3) quarters of each fiscal year of the Company, a statement showing the number of shares of each class and series of capital stock and securities convertible into or exercisable for shares of capital stock outstanding at the end of the period, the Common Stock issuable upon conversion or exercise of any outstanding securities convertible or exercisable for Common Stock and the exchange ratio or exercise price applicable thereto, and the number of shares of issued stock options and stock options not yet issued but reserved for issuance, if any, all in sufficient detail as to permit any the Major Investor Investors to calculate its their respective percentage equity ownership in the Company, and certified by the chief financial officer or chief executive officer of the Company as being true, complete complete, and correct;
(d) as soon as practicable, but in any event within thirty (30) days of the end of each month, an unaudited income statement and statement of cash flows for such month, and an unaudited balance sheet and statement of stockholders’ equity as of the end of such month, all prepared in accordance with GAAP (except that such financial statements may (i) be subject to normal year-end audit adjustments and (ii) not contain all notes thereto that may be required in accordance with GAAP);
(e) as soon as practicable, but in any event thirty (30) days before the end of each fiscal year, a budget and business plan for the next fiscal year (collectively, the “Budget”), approved by the Board of Directors and prepared on a quarterly monthly basis, including balance sheets, income statements, and statements of cash flow for such quarters months and, promptly after prepared, any other budgets or revised budgets prepared by the Company; and
(ef) such other information relating to the financial condition, business, prospects prospects, or corporate affairs of the Company as any Major Investor may from time to time reasonably request; provided, however, that the Company shall not be obligated under this Subsection 3.1 to provide information (i) that the Company reasonably determines in good faith to be a trade secret or confidential information (unless covered by an enforceable confidentiality agreement, in a form acceptable to the Company) ); or (ii) the disclosure of which would adversely affect the attorney-client privilege between the Company and its counsel. If, for any period, the Company has any subsidiary whose accounts are consolidated with those of the Company, then in respect of such period the financial statements delivered pursuant to the foregoing sections shall be the consolidated and consolidating financial statements of the Company and all such consolidated subsidiaries. Notwithstanding anything else in this Subsection 3.1 to the contrary, the Company may cease providing the information set forth in this Subsection 3.1 during the period starting with the date sixty (60) days before the Company’s good-faith estimate of the date of filing of a registration statement if it reasonably concludes it must do so to comply with the SEC rules applicable to such registration statement and related offering; provided that the Company’s covenants under this Subsection 3.1 shall be reinstated at such time as the Company is no longer actively employing its commercially reasonable efforts to cause such registration statement to become effective.
Appears in 1 contract
Sources: Investors’ Rights Agreement (Groundfloor Finance Inc.)