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: (a) as soon as practicable, but in any event within one hundred eighty (180) 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 (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; (b) as soon as practicable, but in any event within ninety (90) days after the end of each quarter of each fiscal year of the Company, unaudited statements of income and cash flows for such fiscal quarter, and an unaudited balance sheet, and a comparison between (x) the actual amounts as of and for such fiscal quarter and (y) the comparable amounts for the prior fiscal quarter and as included in the Budget (as defined in Section 3.1(c)) for such fiscal quarter, 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 thirty (30) days before the end of each fiscal year, a budget and business plan for the next fiscal year, prepared on a monthly 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 (such budget and business plan that is approved by the Board of Directors is collectively referred to herein as the “Budget”). 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 Section 3.1 to the contrary, the Company may cease providing the information set forth in this 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 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 (Lb Pharmaceuticals Inc), Investors' Rights Agreement (Lb Pharmaceuticals Inc)
Delivery of Financial Statements. The For as long as any holder of Preferred Shares and its Affiliates continues to hold Preferred Shares representing 2% or more of the total share capital of the Company (on an as-converted and fully-diluted basis), the Group Companies shall deliver to each Major Investor, provided that such holder of Preferred Shares the Board of Directors has not reasonably determined that such Major Investor is a Competitor of the Companyfollowing documents or reports:
(ai) as soon as practicable, but in any event within one hundred eighty ninety (18090) days after the end of each fiscal year of the Company (i) Company, a consolidated income statement and statement of cash flows for the Group Companies for such fiscal year and a consolidated balance sheet for the Group Companies as of the end of such year, (ii) statements of income and of cash flows for such year, and (iii) a statement of stockholders’ equity as of the end of such fiscal year, all such financial statements prepared in accordance with the US GAAP, audited and certified by one of the “Big 4” or a reputable firm of independent certified public accountants acceptable to the Majority Preferred Holders, and a management report including a comparison of nationally or regionally recognized standing selected by the Companyfinancial results of such fiscal year with the corresponding annual budget prepared in accordance with the US GAAP (provided that such financial statements may be unaudited if the Majority Preferred Holders determines that the Group Companies are not required to obtain audited financial statements);
(bii) as soon as practicable, but in any event within ninety forty-five (9045) days after the end of each quarter quarter, a consolidated unaudited income statement and statement of each fiscal year of the Company, unaudited statements of income and cash flows for such fiscal quarter, and an unaudited balance sheet, quarter and a comparison between (x) the actual amounts as of and for such fiscal quarter and (y) the comparable amounts consolidated balance sheet for the prior fiscal quarter and as included in the Budget (as defined in Section 3.1(c)) for such fiscal quarter, and a statement of stockholders’ equity Group Companies as of the end of such fiscal quarter, all prepared in accordance with GAAP the US GAAP;
(except iii) within thirty (30) days after the end of each month, operating and financial information of that such financial statements may month prepared by or otherwise available to the Company and any other Group Company in the ordinary course of business;
(iiv) be subject an annual budget and strategic plan (the “Annual Budget”) at least thirty (30) days prior to normal year-end audit adjustments; and (ii) not contain all notes thereto that may be required the beginning of each fiscal year approved in accordance with GAAP)Section 10.1(xi) hereof; and
(cv) 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, prepared on a monthly 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 material information relating to the Company (such budget financial condition and business plan that is approved by the Board of Directors is collectively referred to herein as the “Budget”). If, for any period, the Company has any subsidiary whose accounts are consolidated with those Business of the CompanyGroup Companies reasonably requested by any holder of Preferred Shares (including monthly or other periodic operating information), 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 Section 3.1 to the contraryprovided, the Company may cease providing the information set forth in this 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 however, that the Company’s covenants Group Companies shall not be obligated under this Section 3.1 shall 8.1(v) to provide information (i) that the Board reasonably determines in good faith to be reinstated at such time as a trade secret or (ii) the Company is no longer actively employing its commercially reasonable efforts to cause such registration statement to become effectivedisclosure of which would adversely affect the attorney-client privilege between the Group Companies and their counsel.
Appears in 2 contracts
Sources: Shareholder Agreement (LAIX Inc.), Shareholder Agreement (LingoChamp 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:
(a) as soon as practicable, but in any event within one hundred eighty (180) 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 (iii) a statement of stockholders’ equity as of the end of such year, all such financial statements audited and certified by an independent public accountants of nationally or regionally recognized standing accountant selected by the Company; such financial statements shall include a comparison to the prior year’s amounts (provided such prior year’s amounts were similarly audited and certified);
(b) as soon as practicable, but in any event within ninety (90) 45 days after the end of each quarter of the first three quarters of each fiscal year of the Company, unaudited statements of income and cash flows for such fiscal quarter, and an unaudited balance sheet, and a comparison between (x) the actual amounts as of and for such fiscal quarter and (y) the comparable amounts for the prior fiscal quarter and as included in the Budget (as defined in Section 3.1(c)) for such fiscal quarter, 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 practicablesuch other information relating to the financial condition, but in any event thirty (30) days before the end business, prospects or corporate affairs of each fiscal year, a budget and business plan for the next fiscal year, prepared on a monthly 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 as any Major Investor may from time to time reasonably request; provided, however, that the Company shall not be obligated under this Section 3.1(e) (such budget 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 business plan that is approved by the Board of Directors is collectively referred to herein as the “Budget”)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 Section 3.1 to the contrary, the Company may cease providing the information set forth in this 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 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 (Eleison Pharmaceuticals Inc), Investors’ Rights Agreement (Eleison Pharmaceuticals 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 CompanyHolder:
(a) as soon as practicable, but in any event within one hundred eighty (180) 150 days after the end of each fiscal year of the Company (i) Company, 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 (iii) a statement of stockholders’ stockholder’s 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 an independent public accountants accounting firm of nationally or regionally recognized national standing selected by with the Companyapproval of the Board of Directors;
(b) as soon as practicable, but in any event within ninety (90) 45 days after the end of each quarter quarter, an unaudited profit or loss statement, a statement of each fiscal year of the Company, unaudited statements of income and cash flows as compared to the budget and the comparable period for such fiscal quarterthe prior year, and an unaudited balance sheet, and a comparison between (x) the actual amounts as of and for such fiscal quarter and (y) the comparable amounts for the prior fiscal quarter and as included in the Budget (as defined in Section 3.1(c)) for such fiscal quarter, and a statement of stockholders’ equity sheet as of the end of such fiscal quarterquarter and a written summary of operations, 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 thirty within 45 days after the end of each quarter, an updated capitalization table of the Company, in sufficient detail as to permit the Major Holders to calculate their respective percentage equity ownership in the Company;
(30d) as soon as practicable, but in any event 30 days before prior to the end of each fiscal year, a an operating budget and business plan for the next fiscal year, prepared on a monthly basis, including balance sheets, income statements, and statements of cash flow for such months and, promptly after as soon as prepared, any other operating budgets or revised operating budgets prepared by the Company Company; and
(e) such budget and business plan that is approved by the Board of Directors is collectively referred other information relating to herein as the “Budget”). 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 condition, business, prospects, or corporate affairs of the Company and all such consolidated subsidiaries. Notwithstanding anything else in this Section 3.1 as any Major Holder may from time to the contrarytime reasonably request; provided, however, that the Company may cease providing the information set forth in this 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 shall not be obligated under this Section 3.1 shall be reinstated at such time as 2.1 to provide information (i) that the Company is no longer actively employing 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 commercially reasonable efforts to cause such registration statement to become effectivecounsel.
Appears in 2 contracts
Sources: Investors’ Rights Agreement (Affirm Holdings, Inc.), Investors’ Rights Agreement (Affirm 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 a Competitor competitor of the Company, provided further that neither Foresite, Fidelity ▇▇▇▇▇▇▇▇ nor New Leaf may be determined to be a competitor of the Company in any event for any purposes hereunder:
(a) as soon as practicable, but in any event within one hundred eighty twenty (180120) 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 (iii) a statement of stockholdersshareholders’ 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;
(b) as soon as practicable, but in any event within ninety forty five (9045) days after the end of each quarter 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 an unaudited balance sheet, and a comparison between (x) the actual amounts as of and for such fiscal quarter and (y) the comparable amounts for the prior fiscal quarter and as included in the Budget (as defined in Section 3.1(c)) for such fiscal quarter, and a statement of stockholders’ equity 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; 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 thirty (30) days before the end of each fiscal year, a budget and business plan for the next fiscal yearyear (collectively, the “Budget”), prepared on a monthly 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) of the Company and its results of operation for the periods specified therein; and
(e) such budget 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 the disclosure of which would adversely affect the attorney-client privilege between the Company and its counsel. In addition, for so long as each of Foresite and Fidelity, respectively, remains a Major Investor and is bound by confidentiality obligations to the Company, the Company shall deliver to such Major Investor copies of all presentations, meeting agendas, notices, minutes, consents and other materials that it provides to the Company’s Board of Directors within two (2) business plan days of and in the same manner that is approved by such materials are provided to the Board of Directors Directors, unless the Company reasonably determines that such disclosure would adversely affect the attorney-client privilege between the Company and its counsel. Notwithstanding the foregoing, the Company shall not be obligated to provide the information referenced in the immediately preceding sentence to Foresite at any time that Foresite has the right to exclusively designate the Series B Designee (as such term is collectively referred defined in the Voting Agreement) to herein as the “Budget”)Company’s Board of Directors. 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 Section Subsection 3.1 to the contrary, the Company may cease providing the information set forth in this Section 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 Section 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 (Wave Life Sciences Pte LTD)
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:
(a) as soon as practicable, but in any event within one hundred eighty twenty (180120) 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 (iii) a an audited statement of stockholders’ equity as of the end of such year. Such yearend financial reports to be in reasonable detail, all such financial statements prepared in accordance with generally accepted accounting principles (“GAAP”), and audited and certified by independent public accountants of nationally or regionally recognized standing selected by the Company;
(b) as soon as practicable, but in any event within ninety forty five (9045) days after the end of each quarter 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 comparison between (x) the actual amounts as of and for such fiscal quarter and (y) the comparable amounts for the prior fiscal quarter and as included in the Budget (as defined in Section 3.1(c)) for such fiscal quarter, and a statement of stockholders’ equity 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; 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 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;
(d) as soon as practicable, but in any event sixty (60) days before the end of each fiscal year, a budget and business plan for the next fiscal yearyear (collectively, the “Budget”), approved by the Board (including at least one of the Preferred Directors) and prepared on a monthly basis;
(e) such other information relating to the financial condition, including balance sheetsbusiness, income statementsprospects, and statements or corporate affairs of cash flow for such months and, promptly after prepared, any other budgets or revised budgets prepared by the Company as any Major Investor may from time to time reasonably request; provided, however, that the Company shall not be obligated under this Section 6(e) to provide information (such budget 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 business plan that is approved by the Board of Directors is collectively referred to herein as the “Budget”)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 Section 3.1 6 to the contrary, the Company may cease providing the information set forth in this Section 3.1 6 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 Section 3.1 6 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 (ThredUp Inc.), Investors' Rights Agreement (ThredUp 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 CompanyStockholder:
(a) as As soon as practicable, but in any event within one hundred eighty (180) days practicable after the end of each fiscal year of the Company (i) Company, and in any event within 120 days thereafter, a consolidated balance sheet of the Company and its subsidiaries, as of at the end of such fiscal year, (ii) and consolidated statements of income and of cash flows of the Company and its subsidiaries, for such year, prepared in accordance with GAAP consistently applied and (iii) a statement of stockholders’ equity as of setting forth in each case in comparative form the end of such figures for the previous fiscal year, all such financial statements audited in reasonable detail and certified by independent public accountants of nationally or regionally recognized national standing selected by the Company;.
(b) as As soon as practicable, but in any event within ninety (90) days practicable after the end of each quarter of the first, second, and third quarterly accounting periods in each fiscal year of the Company, unaudited and in any event within 60 days thereafter, a consolidated balance sheet of the Company and its subsidiaries, if any, as of the end of each such quarterly period, and consolidated statements of income and cash flows of the Company and its subsidiaries, if any, for such fiscal quarter, and an unaudited balance sheet, and a comparison between (x) the actual amounts as of period and for such the current fiscal quarter and (y) the comparable amounts for the prior fiscal quarter and as included in the Budget (as defined in Section 3.1(c)) for such fiscal quarteryear to date, 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 generally accepted accounting principles consistently applied and setting forth in comparative form the figures for the corresponding periods of the previous fiscal year, subject to changes resulting from normal year-end audit adjustments; and (ii) , all in reasonable detail, except that such financial statements need not contain all the notes thereto that may be required in accordance with GAAP); andby generally accepted accounting principles.
(c) 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, prepared on a monthly basis, including balance sheets, income statements, and statements of cash flow for such months and, promptly after prepared, any Such other budgets or revised budgets prepared by the Company (such budget and business plan that is approved by the Board of Directors is collectively referred information relating to herein as the “Budget”). 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 condition, business, prospects or corporate affairs of the Company and all such consolidated subsidiaries. Notwithstanding anything else as any Eligible Stockholder may from time to time reasonably request, provided, however, that the Company shall not be obligated under this subsection (c) or any other subsection of Section 5.1 to (i) provide information which the Company reasonably deems in this Section 3.1 good faith to be a trade secret or similar confidential information (unless covered by an enforceable confidentiality agreement, in form acceptable to the contrary2nd A&R Stockholders Rights Agreement September 15, 2014 Company) or (ii) would adversely affect the attorney-client privilege between the Company may cease providing the information set forth in this 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 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 effectivecounsel.
Appears in 2 contracts
Sources: Stockholders Rights Agreement, Stockholders Rights Agreement (Inovalon 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 a Competitor competitor of the Company:
(a) as soon as practicable, but in any event within one hundred eighty twenty (180120) 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 (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;
(b) as soon as practicable, but in any event within ninety forty-five (9045) days after the end of each quarter 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 an unaudited balance sheet, and a comparison between (x) the actual amounts as of and for such fiscal quarter and (y) the comparable amounts for the prior fiscal quarter and as included in the Budget (as defined in Section 3.1(c)) for such fiscal quarter, 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); and;
(c) 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);
(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 yearyear (collectively, the “Budget”), approved by the Board of Directors and prepared on a monthly 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; 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 (such budget 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 business plan that is approved by the Board of Directors is collectively referred to herein as the “Budget”)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 Section Subsection 3.1 to the contrary, the Company may cease providing the information set forth in this Section 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 Section 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 (Nerdwallet, Inc.), Investors’ Rights Agreement (Nerdwallet, 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 a Competitor 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 eighty twenty (180120) days after the end of each fiscal year of the Company (i) Company, 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 (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 of nationally or regionally recognized standing selected has been made in accordance with generally accepted auditing standards, unless waived by the Company’s board of directors, including a majority of the Preferred Directors (as defined in the Restated Certificate) (the “Preferred Director Approval”);
(b) as soon as practicable, but in any event within ninety forty-five (9045) days after the end of each quarter of the first three (3) quarters of each fiscal year of the Company, an unaudited statements income statement, statement of income and cash flows for such fiscal quarter, quarter and an unaudited balance sheet, and a comparison between (x) the actual amounts as of and for such fiscal quarter and (y) the comparable amounts for the prior fiscal quarter and as included in the Budget (as defined in Section 3.1(c)) for such fiscal quarter, and a statement of stockholders’ equity sheet 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; , 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 (as defined in the Restated Certificate);
(c) upon request of the Major Holders holding at least one-third of all Preferred Stock then held by the Major Holders, internal monthly unaudited financial statements, compared against plan or monthly reports in a form agreed by the board of directors of the Company, with a Preferred Director Approval, within thirty (30) days 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 (i) income and (ii) not contain all notes thereto that may be required in accordance with GAAP); andcash flows;
(cd) 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, prepared on a monthly basis, including balance sheets, income statements, statements and statements of cash flow flows for such 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 or corporate affairs of the Company as such Major Holder may from time to time 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 Section 2.1 to provide information that (such budget i) it deems in good faith to be a trade secret or similar confidential information or (ii) the disclosure of which would adversely affect the attorney-client privilege between the Company and business plan that is approved by the Board of Directors is collectively referred to herein as the “Budget”)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 Section 3.1 2.1 to the contrary, the Company may cease providing the information set forth in this Section 3.1 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 Section 3.1 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 a Competitor of the Companyfollowing:
(a) as soon as practicableto each Investor, but in any event within one hundred eighty (180) 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 (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;
(b) as soon as practicable, but in any event within ninety (90) days after the end of each quarter of each fiscal year of the Company, unaudited statements of an income and cash flows statement for such fiscal quarteryear, a balance sheet of the Company and an unaudited balance sheet, and a comparison between (x) the actual amounts as of and for such fiscal quarter and (y) the comparable amounts for the prior fiscal quarter and as included in the Budget (as defined in Section 3.1(c)) for such fiscal quarter, and a statement of stockholders’ shareholder's equity as of the end of such fiscal quarteryear, all and a statement of cash flows for such year, such year-end financial reports to be in reasonable detail, prepared in accordance with GAAP generally accepted accounting principles (except that such financial statements may (i) be subject to normal year-end audit adjustments; "GAAP"), and (ii) not contain all notes thereto that may be required in accordance with GAAP); andaudited and certified by independent public accountants of nationally recognized standing selected by the Company;
(cb) to each Major Investor (as defined below), 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 income statement, statement of cash flows for such fiscal quarter and an unaudited balance sheet as of the end of such fiscal quarter.
(c) to each Major Investor, 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 and balance sheet for and as of the end of such month, in reasonable detail and including a comparison to plan figures for such period;
(d) to each Major Investor, as soon as practicable, but in any event at least thirty (30) days prior to the end of each fiscal year, a budget and business plan for the next fiscal year, prepared on a monthly basis, including balance sheets, income statements, statements and statements of cash flow flows for such months and, promptly after as soon as prepared, any other budgets or revised budgets prepared by the Company Company;
(e) to each Major Investor, using its best efforts within twenty-four (24) hours of such budget and business plan event, a notice via facsimile sent to such person designated to obtain such notices,
(i) that is approved by the Board of Directors is collectively referred to herein as the “Budget”). If, for any period, the Company has any subsidiary whose accounts are consolidated with those filed a registration statement under the Securities Act for purposes of a public offering of securities of the Company, then ;
(ii) if the Company issues a press release;
(iii) if the Company issues additional shares of capital stock;
(iv) if there is a change in any of the key personnel of the Company;
(v) if there is a change in control of the Company; and
(vi) if there is any other material corporate event.
(f) with respect of such period to the financial statements delivered pursuant to called for in subsections (b) and (c) of this Section 2.2, an instrument executed by the foregoing sections shall 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 (with the exception of footnotes that may be required by GAAP) and fairly present the consolidated and consolidating financial statements condition of the Company and all its results of operation for the period specified, subject to year-end audit adjustment; and
(g) such consolidated subsidiaries. Notwithstanding anything else in this Section 3.1 other information relating to the contraryfinancial condition, business, prospects or corporate affairs of the Company as any Major Investor may cease providing the information set forth in this 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 from time to comply with the SEC rules applicable to such registration statement and related offering; provided time request, provided, however, that the Company’s covenants Company shall not be obligated under this subsection (g) or any other subsection of Section 3.1 shall 2.1 to provide information that it deems in good faith to be reinstated at such time as the Company is no longer actively employing its commercially reasonable efforts to cause such registration statement to become effectivea trade secret or similar confidential information.
Appears in 2 contracts
Sources: Investors' Rights Agreement (Adexa Inc), Investors' Rights Agreement (Adexa Inc)
Delivery of Financial Statements. (a) The Company shall shall, upon request, deliver to (I) each Investor (or transferee of an Investor) that holds at least 1,800,000 shares of Registrable Securities (appropriately adjusted for any stock split, dividend, combination or other recapitalization, and each Advised Investor (each, a “Major Investor”), provided that the Board (II) each Series F Advised Investor and (III) each Information Rights Investor (or transferee of Directors has not reasonably determined that such Major Investor is a Competitor of the Company:an Information Rights Investor):
(ai) as soon as practicable, but in any event within one hundred eighty twenty (180120) days after the end of each fiscal year of the Company (i) Company, 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 (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 United States generally accepted accounting principles (“GAAP”), and audited and certified by independent public accountants of nationally or regionally recognized standing selected by the Company;
(bii) as soon as practicable, but in any event within ninety forty-five (9045) days after the end of each quarter of the first three (3) quarters of each fiscal year of the Company, an unaudited statements income statement and statement of income and cash flows for such fiscal quarter, quarter and an unaudited balance sheet, and a comparison between (x) the actual amounts as of and for such fiscal quarter and (y) the comparable amounts for the prior fiscal quarter and as included in the Budget (as defined in Section 3.1(c)) for such fiscal quarter, and a statement of stockholders’ equity sheet 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; adjustments and (iiB) not contain all notes thereto that may be required in accordance with GAAP); and
(ciii) as soon as practicablewith respect to Major Investors only, but in any event thirty (30) days before such other information relating to the end financial condition, business or corporate affairs of each fiscal year, a budget and business plan for the next fiscal year, prepared on a monthly 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 as any Major Investor, other than any Major Investor which is a Strategic Investor or a Competitor Transferee may from time to time reasonably request; provided, however, that the Company shall not be obligated under Section 3.1 to provide information that (such budget A) it deems in good faith to be a trade secret or similar confidential information or (B) the disclosure of which would adversely affect the attorney-client privilege between the Company and business plan that is approved by the Board of Directors is collectively referred to herein as the “Budget”). its counsel.
(b) 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 Section 3.1 to the contrary, the Company may cease providing the information set forth in this 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 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.
(c) 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 Investor or Series F Advised Investor relating to (i) accounting or securities law matters required in connection with its audit or (ii) the actual holdings of such Advised Investor or Series F Advised 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 2 contracts
Sources: Investors’ Rights Agreement (Peloton Interactive, Inc.), Investors’ Rights Agreement (Peloton Interactive, Inc.)
Delivery of Financial Statements. The Company shall shall, upon request, deliver to each Investor (or transferee of an Investor) that holds at least 2,000,000 shares of Common Stock issuable or issued upon conversion of the Preferred Stock (subject to appropriate adjustment for stock splits, stock dividends, combinations or the like, but excluding any Special Mandatory Conversion Shares and including any shares held by any affiliate of a fund Investor) (a “Major Investor, provided that the Board of Directors has not reasonably determined that such Major Investor is a Competitor of the Company:”):
(a) as soon as practicable, but in any event within one hundred eighty twenty (180120) days after the end of each fiscal year of the Company (i) Company, 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 (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 of nationally or regionally recognized standing selected by the Company;
(b) as soon as practicable, but in any event within ninety forty-five (9045) days after the end of each quarter of the first three (3) quarters of each fiscal year of the Company, an unaudited statements income statement, statement of income and cash flows for such fiscal quarter, quarter and an unaudited balance sheet, and a comparison between (x) the actual amounts as of and for such fiscal quarter and (y) the comparable amounts for the prior fiscal quarter and as included in the Budget (as defined in Section 3.1(c)) for such fiscal quarter, and a statement of stockholders’ equity 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; and (ii) not contain all notes thereto that may be required in accordance with GAAP); and;
(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) 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 yearyear and, prepared on a monthly basis, including balance sheets, income statements, statements and statements of cash flow flows for such months and, promptly after as soon as prepared, any other budgets or revised budgets prepared by the Company Company;
(such budget and business plan that is approved by the Board of Directors is collectively referred e) with respect to herein as the “Budget”). 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 called for in subsections (b) and (c) of this Section 2.1, an instrument executed by the foregoing sections shall 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 (with the exception of footnotes that may be required by GAAP) and fairly present the consolidated and consolidating financial statements condition of the Company and all its results of operation for the period specified, subject to year-end audit adjustment; and
(f) such consolidated subsidiaries. Notwithstanding anything else in this Section 3.1 other information relating to the contraryfinancial condition, business or corporate affairs of the Company as the Major Investor may cease providing the information set forth in this 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 from time to comply with the SEC rules applicable to such registration statement and related offering; provided time request, provided, however, that the Company’s covenants Company shall not be obligated under this subsection (f) or any other subsection of Section 3.1 shall 2.1 to provide information that it deems in good faith to be reinstated at such time as the Company is no longer actively employing its commercially reasonable efforts to cause such registration statement to become effectivea trade secret or similar confidential information.
Appears in 2 contracts
Sources: Investors’ Rights Agreement (Alder Biopharmaceuticals Inc), Investors’ Rights Agreement (Alder Biopharmaceuticals Inc)
Delivery of Financial Statements. The Company shall deliver to -------------------------------- each Major Investor, provided that the Board of Directors has not reasonably determined that for so long as such Major Investor is a Competitor continues to own at least five percent (5%) of the Company's outstanding capital stock, on an as-converted basis, and the Warrant, as if exercised and the shares acquired thereunder converted, or, if less than five percent (5%) of such securities are purchased by an Investor pursuant to the Series C Agreement but the Investor has purchased at least 3,745,000 shares of Series C Preferred Stock thereunder, for so long as such Investor continues to own all of the shares of Series C Preferred Stock purchased thereunder or the Common Stock into which such shares may be converted:
(a) as soon as practicable, but in any event within one hundred eighty ninety (18090) days after the end of each fiscal year of the Company (i) Company, a statement of operations 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 (iii) a statement of stockholders’ stockholder's equity as of the end of such year, all and a cash flow statement 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 or regionally recognized standing selected by the Company;
(b) as soon as practicable, but in any event within ninety forty-five (9045) days after the end of each quarter of the quarters of each fiscal year of the Company, an unaudited statements statement of income operations and cash flows flow statement, for such fiscal quarterquarter and setting forth year-to-date financial information, and an unaudited balance sheet, and a comparison between (x) the actual amounts as of and for such fiscal quarter and (y) the comparable amounts for the prior fiscal quarter and as included in the Budget (as defined in Section 3.1(c)) for such fiscal quarter, and a statement of stockholders’ equity 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; and (ii) not contain all notes thereto that may be required in accordance with GAAP); and;
(c) within twenty (20) days after the end of each month, an unaudited statement of operations and cash flow statement for such month and setting forth year-to-date financial information, and an unaudited balance sheet as of the end of such month, all in reasonable detail;
(d) as soon as practicable, but in any event thirty (30) days before prior to the end of each fiscal year, a financial budget and business plan for the next fiscal year, prepared on a monthly and quarterly basis, including balance sheets, income statements, in form and statements of cash flow for such months and, promptly after prepared, any other budgets or revised budgets prepared by the Company substance reasonably acceptable to Investors;
(such budget and business plan that is approved by the Board of Directors is collectively referred e) with respect to herein as the “Budget”). 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 called for in subsection (b) and (c) of this Section 2.1, an instrument executed by the foregoing sections shall Chief Financial Officer 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 consolidated and consolidating financial statements condition of the Company and all such consolidated subsidiaries. Notwithstanding anything else in this Section 3.1 its results of operations for the period specified, subject to the contraryyear-end audit adjustment; and
(f) such other information relating to the financial condition, business, prospects or corporate affairs of the Company as the Investor may cease providing the information set forth in this 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 from time to time reasonably concludes it must do so to comply with the SEC rules applicable to such registration statement and related offeringrequest; provided provided, however that the Company’s covenants under this Section 3.1 Company -------- ------- shall not 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.obligated pursuant to
Appears in 2 contracts
Sources: Investors' Rights Agreement (Dovebid Inc), Investors' Rights Agreement (Dovebid Inc)
Delivery of Financial Statements. The Company Until the Corporation becomes a public company subject to the reporting requirements under Section 13 or 15(d) of the Exchange Act, the Corporation 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 CompanyParty:
(a) as soon as practicable, but in any event within one hundred eighty twenty (180120) days after the end of each fiscal year of the Company (i) Corporation, an income statement for such fiscal year, a balance sheet as of the end of such year, (ii) statements of income Corporation and of cash flows for such year, and (iii) a statement of stockholders’ equity as of the end of such year, all a statement of cash flows for such year, such year-end financial statements reports to be in reasonable detail, prepared in accordance with IFRS, and audited and certified by independent public accountants of nationally or regionally recognized standing selected by the CompanyCorporation;
(b) as soon as practicable, but in any event within ninety forty-five (9045) days after the end of each quarter of each fiscal year of the CompanyCorporation, unaudited statements of income and cash flows for such fiscal quarter, and an unaudited balance sheet, income statement and a comparison between (x) the actual amounts statement of cash flows for and as of and for such fiscal quarter and (y) the comparable amounts for the prior fiscal quarter and as included in the Budget (as defined in Section 3.1(c)) for such fiscal quarter, 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); andIFRS;
(c) within thirty (30) days of the end of each month, the monthly consolidated cash balance of the Corporation and its Subsidiaries;
(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, prepared on a monthly basis, including balance sheets, income statements, statements and statements of cash flow flows for such months and, promptly after as soon as prepared, any other budgets or revised budgets prepared by the Company Corporation;
(such budget and business plan that is approved e) copies of all documents sent by the Board Corporation to all stockholders; and
(f) such other information relating to the financial condition, business or corporate affairs of Directors is collectively referred the Corporation as such Investor Party may from time to herein as the “Budget”). Iftime request; and if, for any period, the Company Corporation has any subsidiary Subsidiary whose accounts are consolidated with those of the CompanyCorporation, then in respect of such period the financial statements delivered pursuant to the foregoing sections provisions of this Section 8.1 shall be the consolidated and consolidating financial statements of the Company Corporation and all such consolidated subsidiariesSubsidiaries. Notwithstanding anything else in this Section 3.1 8.1 to the contrary, the Company Corporation may cease providing the information set forth in this Section 3.1 8.1 during the period starting with the date sixty thirty (6030) days before the CompanyCorporation’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 Commission rules applicable to such registration statement and related offering; provided provided, that the CompanyCorporation’s covenants under this Section 3.1 8.1 shall be reinstated at such time as the Company Corporation is no longer actively employing its commercially reasonable efforts to cause such registration statement to become effective.
Appears in 2 contracts
Sources: Stockholders Agreement (Ivanhoe Electric Inc.), Stockholders Agreement (Ivanhoe Electric 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:
(a) as soon as practicable, but in any event within one one-hundred eighty and twenty (180120) 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 reasonably acceptable to the Series A Director and Series B Director; provided, however, that the consent of the Series A Director and Series B Director shall not be required if (A) such accountants are of nationally recognized standing; or (B) such accountants are the Company;’s existing independent public accountants as of the date hereof.
(b) as soon as practicable, but in any event within ninety forty-five (9045) days after the end of each quarter 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 an unaudited balance sheet, and a comparison between (x) the actual amounts as of and for such fiscal quarter and (y) the comparable amounts for the prior fiscal quarter and as included in the Budget (as defined in Section 3.1(c)) for such fiscal quarter, 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) 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 the Major Investors to calculate 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 forty-five (45) 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 yearyear and projections for the following fiscal year (collectively, the “Budget”), approved by the Board of Directors and prepared on a monthly 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; and
(f) 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 (such budget including, without limitation, 409A valuation reports); 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 business plan that is approved by the Board of Directors is collectively referred to herein as the “Budget”)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 Section Subsection 3.1 to the contrary, the Company may cease providing the information set forth in this Section 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 Section 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 (Pattern Group Inc.), Investors’ Rights Agreement (Pattern Group 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 CompanyMethodist:
(ai) as soon as practicable, but in any event within one hundred eighty twenty (180120) 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 (iii) a an unaudited statement of stockholders’ equity as of the end of such year, all prepared in accordance with GAAP (except that such financial statements audited and certified by independent public accountants of nationally or regionally recognized standing selected by the Companymay not contain all notes thereto that may be required in accordance with GAAP);
(bii) as soon as practicable, but in any event within ninety forty-five (9045) days after the end of each quarter of each fiscal year of the Company, unaudited statements of income and cash flows for such fiscal quarter, and an unaudited balance sheet, and a comparison between (x) the actual amounts as of and for such fiscal quarter and (y) the comparable amounts for the prior fiscal quarter and as included in the Budget (as defined in Section 3.1(c)) for such fiscal quarter, and a statement of stockholders’ equity 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; and (ii) not contain all notes thereto that may be required in accordance with GAAP); and
(ciii) as soon as practicablesuch other information relating to the financial condition, but in any event thirty (30) days before the end business, prospects, or corporate affairs of each fiscal year, a budget and business plan for the next fiscal year, prepared on a monthly 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 as Methodist may from time to time reasonably request; provided, however, that the Company shall not be obligated under this Section 7(a) to provide information (such budget 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 business plan that is approved by the Board of Directors is collectively referred to herein as the “Budget”)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 Section 3.1 7(a) to the contrary, the Company may cease providing the information set forth in this 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 Section 3.1 7(a) 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: Patent and Know How License Agreement (Coya Therapeutics, Inc.), Patent and Know How License Agreement (Coya Therapeutics, Inc.)
Delivery of Financial Statements. The Company shall deliver to each Major Investor, provided that the Board of Directors has Investor (who is not reasonably determined that such Major Investor is a Competitor competitor of the Company:):
(ai) as soon as practicable, but in any event within one hundred eighty twenty (180120) days after the end of each fiscal year of the Company (i) a balance sheet as of the end of such yearCompany, (ii) statements of an income statement and statement of cash flows for such fiscal year, a balance sheet of the Company and (iii) a statement of stockholders’ stockholder’s equity as of the end of such year, all and a schedule as to the sources and applications of funds for such year, such year-end financial statements reports to be in reasonable detail, prepared in accordance with generally accepted accounting principles, and audited and certified by nationally recognized independent public accountants of nationally or regionally recognized standing selected by the CompanyCompany and approved by the Board of Directors;
(bii) as soon as practicable, but in any event within ninety forty-five (9045) days after the end of each quarter of the first three (3) quarters of each fiscal year of the Company, an unaudited statements income statement and statement of income and cash flows for the relevant fiscal quarter, schedule as to the sources and application of funds for such fiscal quarter, and an unaudited balance sheet, and a comparison between (x) the actual amounts as of and for such fiscal quarter and (y) the comparable amounts for the prior fiscal quarter and as included in the Budget (as defined in Section 3.1(c)) for such fiscal quarter, and a statement of stockholders’ equity sheet as of the end of such fiscal quarter, all prepared in accordance with GAAP (generally accepted accounting principles, 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); andfor any otherwise applicable footnote disclosures;
(ciii) as soon as practicable, but in any event within thirty (30) days before of the end of each month, an unaudited income statement, statement of cash flows, schedule as to the sources and application of funds and balance sheet for and as of the end of such month, in reasonable detail, prepared in accordance with generally accepted accounting principles, except for any otherwise applicable footnote disclosures;
(iv) as soon as practicable, but in any event at least thirty (30) days prior to the end of each fiscal year, a comprehensive operating budget and business plan for the next upcoming fiscal year forecasting the Company’s revenues, expenses and cash position on a month-to-month basis for the upcoming fiscal year, prepared on a monthly basis, including balance sheets, income statements, and statements of cash flow for ; and
(v) such months and, promptly after prepared, any other budgets or revised budgets prepared by the Company (such budget and business plan that is approved by the Board of Directors is collectively referred information relating to herein as the “Budget”). 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 condition, business, prospects, or corporate affairs of the Company and all as such consolidated subsidiaries. Notwithstanding anything else in this Section 3.1 Investor may from time to the contrarytime reasonably request; provided, however, that the Company may cease providing the information set forth in this 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 shall not be obligated under this Section 3.1 shall be reinstated at such time as 2.1 to provide information (i) that the Company is no longer actively employing 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 commercially reasonable efforts to cause such registration statement to become effectivecounsel.
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:
(a) as soon as practicable, but in any event within one hundred eighty (180) 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 (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;
(b) as soon as practicable, but in any event within ninety (90) days after the end of each quarter fiscal year of the Company, a consolidated income statement for such fiscal year, a consolidated balance sheet of the Company and consolidated statement of stockholder's equity as of the end of such year, and a consolidated 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 audited and certified by independent public accountants of nationally recognized standing selected by the Company;
(b) so long as such Investor holds an aggregate of at least 400,000 shares of Series A, Series B, Series C, Series D and/or Series E Preferred Stock (or Common Stock issued upon conversion thereof and as adjusted for subsequent stock splits, recombinations or reclassifications) 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, an unaudited statements consolidated income statement, consolidated statement of income and cash flows for such fiscal quarter, quarter and an unaudited consolidated balance sheet, and a comparison between (x) the actual amounts as of and for such fiscal quarter and (y) the comparable amounts for the prior fiscal quarter and as included in the Budget (as defined in Section 3.1(c)) for such fiscal quarter, and a statement of stockholders’ equity 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; and (ii) not contain all notes thereto that may be required in accordance with GAAP); and;
(c) so long as such Investor holds an aggregate of at least 400,000 shares of Series A, Series B, Series C, Series D and/or Series E Preferred Stock (or Common Stock issued upon conversion thereof and as adjusted for subsequent stock splits, recombinations or reclassifications) within thirty (30) days of the end of each month, an unaudited consolidated income statement, consolidated statement of cash flows and consolidated balance sheet for and as of the end of such month, in reasonable detail;
(d) so long as such Investor holds an aggregate of at least 400,000 shares of Series A, Series B, Series C, Series D and/or Series E Preferred Stock (or Common Stock issued upon conversion thereof and as adjusted for subsequent stock splits, recombinations or reclassifications) as soon as practicable, but in any event thirty (30) days before prior to the end of each fiscal year, a budget and business plan for the next fiscal year, prepared on a monthly basis, including consolidated balance sheets, sheets and consolidated income statements, and statements of cash flow for such months and, promptly after as soon as prepared, any other budgets or revised budgets prepared by the Company Company;
(such budget and business plan that is approved by the Board of Directors is collectively referred e) with respect to herein as the “Budget”). 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 called for in subsections (b) and (c) of this Section 2.1, an instrument executed by the foregoing sections shall be the consolidated and consolidating financial statements Chief Financial Officer or Chief Executive Officer of the Company and all certifying that such consolidated subsidiaries. Notwithstanding anything else financials were prepared in this Section 3.1 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;
(f) such other information relating to the contraryfinancial condition, business, prospects or corporate affairs of the Company may cease providing as the information set forth in this Section 3.1 during the period starting with the date sixty (60) days before the Company’s good-faith estimate Investor or any assignee of the date of filing of a registration statement if it reasonably concludes it must do so Investor may from time to comply with the SEC rules applicable to such registration statement and related offering; provided time request, provided, however, that the Company’s covenants Company shall not be obligated under this subsection (f) or any other subsection of Section 3.1 shall 2.1 to provide information which it deems in good faith to be reinstated at such time as the Company is no longer actively employing its commercially reasonable efforts to cause such registration statement to become effectivea trade secret or similar confidential information.
Appears in 1 contract
Sources: Investors' Rights Agreement (Metawave Communications Corp)
Delivery of Financial Statements. The Company shall deliver will furnish to each Major Investor, provided that the Board of Directors has not reasonably determined that such Major Investor is a Competitor of the CompanyTrustee:
(a) as soon as practicableavailable, but in any event within one hundred eighty (180) 120 days after the end of each fiscal year (December 31) of the Company, a copy of the consolidated balance sheet of the Company (i) a balance sheet as of the end of such year, (ii) statements of income year and of cash flows 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;
(b) as soon as practicable, but in any event within ninety (90) days after the end of each quarter of each fiscal year of the Company, unaudited related consolidated statements of income and cash flows for such fiscal quarteryear, audited by independent accountants selected by the Company and an of internationally recognized standing;
(b) as soon as available, but in any event within 75 days after the end of each of the first three fiscal quarters of the Company, a copy of the unaudited consolidated balance sheet, and a comparison between (x) sheet of the actual amounts as of and for such fiscal quarter and (y) the comparable amounts for the prior fiscal quarter and as included in the Budget (as defined in Section 3.1(c)) for such fiscal quarter, and a statement of stockholders’ equity Company as of the end of each such quarter and the related unaudited consolidated statements of income and cash flows of the Company for such quarter and the portion of the fiscal quarter, all prepared in accordance year through such date;
(c) concurrently with GAAP (except that such the delivery of the financial statements may for each fiscal year and the second fiscal quarter of the Company referred to in clauses (ia) be subject to normal year-end audit adjustments; and (ii) not contain all notes thereto that may be required in accordance with GAAPb), respectively above, a certificate of the Company’s independent accountants certifying the calculation of the Leverage Ratio and Excess Cash; and
(cd) as soon as practicable, but in any event thirty (30) days before concurrently with the end delivery of each fiscal year, a budget and business plan for the next fiscal year, prepared on a monthly 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 (such budget and business plan that is approved by the Board of Directors is collectively referred to herein as the “Budget”). 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 referred to in clause (a) above, a certificate of the foregoing sections shall be the consolidated and consolidating general manager or chief financial statements officer of the Company and all such consolidated subsidiaries. Notwithstanding anything else in this Section 3.1 stating (i) whether, to the contrarybest of such officer’s knowledge, anything came to his or her attention (except for the Company may cease providing the information set forth in this Section 3.1 during the period starting with Restructuring) to cause him or her to believe that there existed on the date sixty of such statements a Default or an Event of Default, and if so, specifying the nature and period of existence thereof. All of the financial statements referred to in (60a) days before and (b) above are to be complete and correct in all material respects, to be prepared in reasonable detail and in accordance with Argentine GAAP applied consistently throughout the periods reflected therein and to be delivered in both the English and Spanish languages. Delivery of such reports, information and documents to the Trustee is for informational purposes only and the Trustee’s receipt of such reports shall not constitute constructive notice of any information contained therein or determinable from information contained therein, including the Company’s good-faith estimate compliance with any of its covenants hereunder (as to which the date of filing of a registration statement if it reasonably concludes it must do so Trustee is entitled to comply with the SEC rules applicable to such registration statement and related offering; provided that the Company’s covenants under this 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 effectiverely exclusively on Officers’ Certificates).
Appears in 1 contract
Sources: Indenture (Edenor)
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 CompanyEligible Shareholder:
(a) as soon as practicable, but in any event within one hundred eighty and twenty (180120) days after the end of each fiscal year of the Company Company, audited annual financial statements prepared in accordance with Israeli GAAP (i) a balance sheet as of the end of provided such year, (ii) reports include cash flow statements of income and of cash flows 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;
(b) if requested in writing, as soon as practicable, but in any event within ninety (90) days after the end of each quarter of the first three (3) quarters of each fiscal year of the Company, unaudited statements of income and of cash flows for such the relevant fiscal quarterquarter so requested, and an unaudited balance sheet, and a comparison between (x) the actual amounts as of and for such fiscal quarter and (y) the comparable amounts for the prior fiscal quarter and as included in the Budget (as defined in Section 3.1(c)) for such fiscal quarter, and a statement of stockholders’ equity sheet as of the end of such fiscal quarter, all prepared in accordance with GAAP and approved by the chief executive officer of the Company (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 practicablesuch other information relating to the financial condition, but in any event thirty (30) days before the end business, prospects, or corporate affairs of each fiscal year, a budget and business plan for the next fiscal year, prepared on a monthly 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 (such budget and business plan that is approved by the Board of Directors is collectively referred to herein as the “Budget”)Investor may from time to time reasonably request; provided, however, that the Company shall not be obligated under 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 Section 3.1 to the contrary, the Company may cease providing the information set forth in this 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 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-------------------------------- Holder that holds shares of Series A Preferred, provided that the Board of Directors has not reasonably determined that such Major Investor is a Competitor of the CompanySeries B Preferred or Series C Preferred:
(a) as soon as practicable, but in any event within one hundred eighty (180) 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 (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;
(b) as soon as practicable, but in any event within ninety (90) days after the end of each quarter of each fiscal year of the Company, unaudited statements of an income and cash flows statement for such fiscal quarteryear, and an unaudited a balance sheet, and a comparison between (x) sheet of the actual amounts as of and for such fiscal quarter and (y) the comparable amounts for the prior fiscal quarter and as included in the Budget (as defined in Section 3.1(c)) for such fiscal quarter, and a statement of stockholders’ equity Company as of the end of such fiscal quarteryear, all 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 generally accepted accounting principles, and audited and certified by independent public accountants of nationally recognized standing selected by the Company;
(except that b) within thirty (30) days after the end of each calendar quarter and within thirty (30) days after the end of each month, an unaudited income statement and schedule as to the sources and applications of funds and balance sheet and comparison to budget for and as of the end of such financial statements may (i) be subject to normal year-end audit adjustments; and (ii) not contain all notes thereto that may be required quarter or month, respectively, in accordance with GAAP); andreasonable detail;
(c) as soon as practicable, but in any event thirty (30) days before prior to the end of each fiscal year, a budget and business plan for the next fiscal year, prepared on a monthly basis, including balance sheets, income statements, sheets and sources and applications of funds statements of cash flow for such months and, promptly after as soon as prepared, any other budgets or revised budgets prepared by the Company Company; and
(d) such budget and business plan that is approved by other information relating to the Board financial conditions, business, prospects or corporate affairs of Directors is collectively referred to herein as the “Budget”). If, for any period, the Company has as each such Holder; or any subsidiary whose accounts are consolidated with those assignee of such Holder may from time to time reasonably request; provided, -------- however, that the Company shall not be obligated to provide information which it ------- deems in good faith to be proprietary or which the requesting Holder shall not agree if so requested by the Company, then in respect of such period the financial statements delivered pursuant writing, to retain in confidence (except 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 Section 3.1 to the contrary, the Company may cease providing the information set forth in this 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 Section 3.1 shall be reinstated at such time as the Company extent disclosure is no longer actively employing its commercially reasonable efforts to cause such registration statement to become effectiverequired by law or court order).
Appears in 1 contract
Delivery of Financial Statements. (a) The Company shall deliver furnish to each Major Investor, provided that the Board of Directors has not reasonably determined that such Major Investor is a Competitor of the Company:
(a) as soon as practicable, but in any event within one hundred eighty (180) 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 (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;
(b) as soon as practicable, but in any event within ninety (90) days after the end of each quarter fiscal year of the Company (one hundred and twenty days in the case of the fiscal year ending December 31, 1995), an income statement for such fiscal year, a balance sheet of the Company and statement of stockholders' equity as of the end of such year, 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, and audited by a nationally recognized firm of independent public accountants selected by the Company and approved by its Board of Directors.
(b) The Company shall deliver to each Investor as soon as practicable, but in any event within sixty (60) 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 an unaudited balance sheetincome statement, schedule as to the sources and a comparison between (x) the actual amounts as application of and funds for such fiscal quarter and (y) the comparable amounts for the prior fiscal quarter and as included in the Budget (as defined in Section 3.1(c)) for such fiscal quarter, and a statement of stockholders’ equity 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; and (ii) not contain all notes thereto that may be required in accordance with GAAP); and.
(c) The Company shall furnish to each Investor who (together with Investors which control it, are controlled by it, or are under common control with it) holds at least 800,000 shares of Series B Preferred Stock or Common Stock issued upon conversion thereof (each a "Major Investor") as soon as practicable, but in any event within thirty (30) days after the end of each month, an unaudited income statement and balance sheet as of the end of such month, in reasonable detail.
(d) The Company shall furnish to each Major Investor as soon as practicable, but in any event thirty (30) days before after the end of each fiscal yearyear (sixty (60) days in the case of the fiscal year ended December 31, 1995), a budget and business plan for the next fiscal year; provided, prepared on however, that the Company's obligation to furnish a monthly 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 (such budget and business plan that is approved may be waived by the Board of Directors is collectively referred to herein as (either by express waiver or by the “Budget”). If, for any period, the Company has any subsidiary whose accounts are consolidated with those failure of the Company, then in respect Board of such period the financial statements delivered pursuant Directors to the foregoing sections shall be the consolidated and consolidating financial statements request preparation of the Company and all such consolidated subsidiaries. a business plan).
(e) Notwithstanding anything else any provisions contained in this Section 3.1 7.1 to the contrary, the Company may cease providing the information set forth in this 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 shall not be obligated under this Section 3.1 shall 7.1 to provide information which it deems in good faith to be reinstated at such time as the Company is no longer actively employing its commercially reasonable efforts to cause such registration statement to become effectivea trade secret or similar confidential information.
Appears in 1 contract
Sources: Series B Preferred Stock Purchase Agreement (Giga Information Group 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 CompanyBroadband:
(ai) as soon as practicable, but in any event within one hundred eighty (180) 150 days after the end of each fiscal year of the Company (i1) a balance sheet as of the end of such year, (ii2) statements of income and of cash flows for such year, year and (iii3) a statement of stockholdersshareholders’ 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;
(bii) as soon as practicable, but in any event within ninety (90) 45 days after the end of each quarter of the first three quarters of each fiscal year of the Company, unaudited statements of income and cash flows for such fiscal quarter, and an unaudited balance sheet, and a comparison between (x) the actual amounts as of and for such fiscal quarter and (y) the comparable amounts for the prior fiscal quarter and as included in the Budget (as defined in Section 3.1(c)) for such fiscal quarter, and a statement of stockholders’ equity sheet as of the end of such fiscal quarter, all prepared in accordance with GAAP United States generally accepted accounting principles (“GAAP”) (except that such financial statements may (i1) be subject to normal year-end audit adjustments; and (ii2) not contain all notes thereto that may be required in accordance with GAAP); and;
(ciii) as soon as practicablesuch other information relating to the financial condition, but in any event thirty (30) days before the end business, prospects, or corporate affairs of each fiscal year, a budget and business plan for the next fiscal year, prepared on a monthly 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 as Broadband may from time to time reasonably request; provided, however, that the Company shall not be obligated under this Section 8(a) to provide information (such budget 1) 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 (2) the disclosure of which would adversely affect the attorney-client privilege between the Company and business plan that is approved by the Board of Directors is collectively referred to herein as the “Budget”)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 Section 3.1 8(a) to the contrary, the Company may cease providing the information set forth in this Section 3.1 8(a) 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 Section 3.1 8(a) 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:
(a) as soon as practicable, but in any event within one hundred eighty (180) 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 (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;
(b) as soon as practicable, but in any event within ninety (90) days [***] after the end of each quarter 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 an unaudited balance sheet, and a comparison between (x) the actual amounts as of and for such fiscal quarter and (y) the comparable amounts for the prior fiscal quarter and as included in the Budget (as defined in Section 3.1(c)) for such fiscal quarter, and a statement of stockholders’ equity 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; 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 thirty (30) days [***] before the end of each fiscal year, a budget and business plan for the next fiscal yearyear (collectively, the “Budget”), approved by the Board of Directors and prepared on a monthly 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) 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 (such budget 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 business plan that is approved by the Board of Directors is collectively referred to herein as the “Budget”)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 Section Subsection 3.1 to the contrary, the Company may cease providing the information set forth in this Section 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 Section 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 Investor holding at least 1,500,000 shares of Preferred Stock (or shares of common stock issuable upon conversion thereof) of the Company (each a "Major Investor, provided that the Board of Directors has not reasonably determined that such Major Investor is a Competitor of the Company:"):
(a) as soon as practicable, but in any event within one hundred eighty and twenty (180120) days after the end of each fiscal year of the Company (i) Company, 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 (iii) a statement of stockholders’ stockholder's 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 or regionally recognized standing selected by the Company;
(b) as soon as practicable, but in any event within ninety thirty (9030) days after the end of each quarter of each fiscal year of the Company, an unaudited statements income statement, statement of income and cash flows for such fiscal quarter, quarter and an unaudited balance sheet, and a comparison between (x) the actual amounts as of and for such fiscal quarter and (y) the comparable amounts for the prior fiscal quarter and as included in the Budget (as defined in Section 3.1(c)) for such fiscal quarter, and a statement of stockholders’ equity sheet as of the end of such fiscal quarter.
(c) within thirty (30) days of the end of each month, all 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) with respect to the financial statements called for in subsections (b) and (c) of this Section 2.1, 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 ordinary course year-end audit adjustments; and (ii) not contain all notes thereto that may be required in accordance with GAAP)adjustment; and
(ce) 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, prepared on a monthly 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 (such budget and business plan that is approved by the Board of Directors is collectively referred information relating to herein as the “Budget”). 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 condition, business, prospects or corporate affairs of the Company and all such consolidated subsidiaries. Notwithstanding anything else in this Section 3.1 as the Investor or any assignee of the Investor may from time to the contrarytime request, provided, however, that the Company may cease providing the information set forth in this 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 shall not be obligated under this subsection (e) or any other subsection of Section 3.1 shall 2.1 to provide information that it deems in good faith to be reinstated at such time as the Company is no longer actively employing its commercially reasonable efforts to cause such registration statement to become effectivea trade secret or similar confidential information.
Appears in 1 contract
Sources: Investors' Rights Agreement (CreditCards.com, 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:
(a) -------------------------------- each holder of Preferred B Shares and each holder of Series A Convertible Preferred Shares (the "Preferred A Shares") and (b) each holder of Ordinary Shares for so long as such holder owns more than 5% of the outstanding share capital in the Company on a fully diluted basis (in each case in this Section 1 an "Entitled Shareholder"):
1.1.1. As soon as practicable, but in any event within one hundred eighty fifty (18050) days after the end of each fiscal year of the Company, audited consolidated financial statements of the Company and of the Company's subsidiary - StoreAge Networking Technologies, Inc. (i) a the "Subsidiary"), including the balance sheet as of the end of such year, (ii) year and statements of income and cash flow of cash flows the Company for such year, and (iii) a statement of stockholders’ equity as of setting forth in each case in comparative form the end of such figures for the previous fiscal year, all in reasonable detail, United States dollar denominated, prepared in accordance with US generally accepted accounting principles ("GAAP"), audited by a firm of Independent Certified Public Accountants who are members of the Israeli Institute of Certified Public Accountants and are affiliated with one of the "Big Five" accounting firms (an "Israeli CPA"), 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 consistently applied, 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 has been made in accordance with US generally accepted auditing standards, and certified by independent public accountants of nationally or regionally recognized standing selected by in a form suitable for such Entitled Shareholder to conform with the Company;reporting requirements which apply to a publicly traded company; and
(b) as 1.1.2. As soon as practicable, but in any event within ninety forty five (9045) days after the end of the first, second and third quarter in each quarter year, the unaudited, but reviewed, consolidated financial statements of the Company and of the Subsidiary, including the balance sheet as at the end of each fiscal year of the Company, such period and unaudited statements of income and cash flows flow of the Company for such period, setting forth in each case in comparative form the figures for the corresponding period of the previous fiscal quarteryear, all in reasonable detail, United States dollar-denominated, certified, by the chief financial officer of the Company (the "CFO"), reviewed by an Israeli CPA and an unaudited balance sheet, and in a comparison between (x) the actual amounts as of and form suitable for such fiscal quarter and (y) Entitled Shareholder to conform with the comparable amounts for the prior fiscal quarter and as included in the Budget (as defined in Section 3.1(c)) for reporting requirements which apply to a publicly traded company. The CFO's certificate shall state that such fiscal quarter, and a statement of stockholders’ equity as of the end of such fiscal quarter, all financial statements were 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); andconsistently applied.
(c) as 1.1.3. As soon as practicable, but in any event thirty within fifteen (3015) days before after the end of each calendar month, the Company shall deliver to the Entitled Shareholders monthly management reports containing information of the business of the Company for such month in the form acceptable to the Company and the Purchasers and any such other reports as shall from time to time be directed by the Board of Directors.
1.1.4. At least forty five (45) days prior to the first day of each fiscal year, a budget the Company shall prepare and business plan present to the Entitled Shareholders detailed financial and operational projections for the next fiscal yearyear and a financial summary projection, prepared on broken down into yearly and quarterly financial forecasts and other such projections as directed by the Purchasers.
1.1.5. Any other information as may be reasonably requested by the Entitled Shareholders, including, inter alia, information required for the purpose of preparing or filing a monthly basis, including balance sheets, income statements, and statements of cash flow for such months and, promptly after prepared, prospectus and/or any other budgets filing pursuant to the securities authorities and/or any other information required under any law. It is agreed that in such events the Entitled Shareholder may be entitled to transfer that information, if necessary for the purposes mentioned above, to any of its affiliates or revised budgets prepared subsidiaries, provided that the Entitled Shareholder shall reimburse the Company for any and all expenditure which is borne by the Company (in connection with obtaining or providing such budget and business plan information, if information of that is approved kind in not obtained by the Board Company in the ordinary course of Directors is collectively referred to herein as the “Budget”)business.
1.1.6. If, for any period, the Company has any subsidiary whose accounts are consolidated with those All 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 Section 3.1 to the contrary, the Company may cease providing the information set forth in this 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 Section 3.1 1.1 shall be reinstated at such time as presented to the Company is no longer actively employing its commercially reasonable efforts to cause such registration statement to become effectivePurchasers in English.
Appears in 1 contract
Sources: Shareholders' Rights Agreement (Iis Intelligent Information Systems LTD)
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:
(a) as soon as practicable, but in any event within one hundred eighty twenty (180120) 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 (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 of nationally or regionally recognized standing selected by the Company;
(b) as soon as practicable, but in any event within ninety forty-five (9045) days after the end of each quarter 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 an unaudited balance sheet, and a comparison between (x) the actual amounts as of and for such fiscal quarter and (y) the comparable amounts for the prior fiscal quarter and as included in the Budget (as defined in Section 3.1(c)) for such fiscal quarter, 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 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); and
(d) as soon as practicable, but in any event within thirty (30) days of the end of each fiscal year, a budget and business plan and a budget for the next fiscal year, prepared on a monthly 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; 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 (such budget 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 business plan that is approved by the Board of Directors is collectively referred to herein as the “Budget”)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 Section Subsection 3.1 to the contrary, the Company may cease providing the information set forth in this Section 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 Section 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:
(a) so long as soon as practicable, but such Investor holds at least 160,000 shares of Series A and/or Series B Preferred Stock (either in any event within one hundred eighty (180) days after the end form 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 yearSeries A and/or Series B Preferred Stock or Common Stock issued upon conversion thereof, and (iii) a statement of stockholders’ equity as of the end of such yearadjusted for subsequent stock splits, all such financial statements audited and certified by independent public accountants of nationally recombinations or regionally recognized standing selected by the Company;
(b) reclassifications), as soon as practicable, but in any event within ninety (90) days after the end of each quarter fiscal year of the Company, an income statement for such fiscal year, a balance sheet of the Company and statement of stockholder's equity as of the end of such year, 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 audited and certified by independent public accountants of nationally recognized standing selected by the Company;
(b) so long as such Investor holds at least 160,000 shares of Series A and/or Series B Preferred Stock (either in the form of Series A and/or Series B Preferred Stock or Common Stock issued upon conversion thereof, and as adjusted for subsequent stock splits, recombinations or reclassifications), 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, statement of income and cash flows for such fiscal quarter, quarter and an unaudited balance sheet, and a comparison between (x) the actual amounts as of and for such fiscal quarter and (y) the comparable amounts for the prior fiscal quarter and as included in the Budget (as defined in Section 3.1(c)) for such fiscal quarter, 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); and;
(c) so long as such Investor holds at least 160,000 shares of Series A and/or Series B Preferred Stock (either in the form of Series A and/or Series B Preferred Stock or Common Stock issued upon conversion thereof, and as adjusted for subsequent stock splits, recombinations or reclassifications), 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) so long as such Investor holds at least 160,000 shares of Series A and/or Series B Preferred Stock (either in the form of Series A and/or Series B Preferred Stock or Common Stock issued upon conversion thereof, and as adjusted for subsequent stock splits, recombinations or reclassifications), as soon as practicable, but in any event thirty (30) days before prior to the end of each fiscal year, (i) a budget and business plan for the next fiscal year, prepared on and (ii) a monthly 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 (such budget and business plan that is approved by the Board of Directors is collectively referred with respect to herein as the “Budget”). If, for any period, the Company has any subsidiary whose accounts are consolidated such next fiscal year; and
(e) with those of the Company, then in respect of such period to the financial statements delivered pursuant to called for in subsections (b) and (c) of this Section 2.1, an instrument executed by the foregoing sections shall 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 (with the exception of footnotes that may be required by gaap) and fairly present the consolidated and consolidating financial statements condition of the Company and all such consolidated subsidiaries. Notwithstanding anything else in this Section 3.1 to the contrary, the Company may cease providing the information set forth in this Section 3.1 during its results of operation for the period starting with the date sixty (60) days before the Company’s goodspecified, subject to year-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 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 effectiveend audit adjustment.
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:
(a) as soon as practicable, but in any event within one hundred eighty (180) 90 days after the end of each fiscal year of the Company the following unaudited financial statements (the “Annual Financial Statements”): (i) a balance sheet as of the end of such year, ; (ii) statements of income and of cash flows for such year, ; and (iii) a statement of stockholders’ equity as of the end of such year; provided, all such financial statements audited and certified by independent public accountants of nationally or regionally recognized standing selected however, if approved by the CompanyBoard, then the Annual Financial Statements shall be audited by an independent accounting firm;
(b) as soon as practicable, but in any event within ninety (90) 30 days after of the end of each quarter month, an unaudited income statement and statement of each fiscal year of the Company, unaudited statements of income and cash flows for such fiscal quartermonth, and an unaudited balance sheet, sheet and a comparison between (x) the actual amounts as of and for such fiscal quarter and (y) the comparable amounts for the prior fiscal quarter and as included in the Budget (as defined in Section 3.1(c)) for such fiscal quarter, and a statement of stockholders’ equity as of the end of such fiscal quartermonth, 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 thirty (30) 30 days before the end of each fiscal year, a budget and business plan for the next fiscal yearyear (collectively, the “Budget”), prepared on a monthly 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; and
(d) 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 (such budget 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 business plan that is approved by the Board of Directors is collectively referred to herein as the “Budget”)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 Section Subsection 3.1 to the contrary, the Company may cease providing the information set forth in this Section 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 Section 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:
(a) as soon as practicable, but in any event within one hundred eighty (180) 90 days after the end of each fiscal year of the Company (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 Preferred Directors) (i) a balance sheet as of the end of such year, (ii) statements of income and of cash flows 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;
(b) as soon as practicable, but in any event within ninety (90) 45 days after the end of each quarter of each fiscal year of the Company, unaudited statements of income and cash flows for such fiscal quarter, and an unaudited balance sheet, and a comparison between (x) the actual amounts as of and for such fiscal quarter and (y) the comparable amounts for the prior fiscal quarter and as included in the Budget (as defined in Section 3.1(c)) for such fiscal quarter, 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 thirty within 45 days after the end of each of the first three (303) 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 the Major Investors to calculate 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 30 days before the end of each fiscal year, a budget and business plan for the next fiscal yearyear (collectively, the “Budget”), approved by the Board of Directors (including the majority of the Preferred Directors) prepared on a monthly 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 Company; and
(such budget and business plan that is approved e) with respect to the financial statements called for in Section 3.1(b), an instrument executed by the Board chief financial officer and chief executive officer of Directors is collectively referred to herein 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 “Budget”)financial condition of the Company and its results 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 Section 3.1 to the contrary, the Company may cease providing the information set forth in this 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 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 shall, upon request, deliver to each Investor (or transferee of an Investor) that holds at least 500,000 shares of Registrable Securities, calculated in accordance with Section 3.9 below (subject to appropriate adjustment for stock splits, stock dividends, combinations or the like) (a “Major Investor, provided that the Board of Directors has not reasonably determined that such Major Investor is a Competitor of the Company:”):
(a) as soon as practicable, but in any event within one hundred eighty (180) days after the end of each fiscal year of the Company (i) Company, 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 (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 of nationally or regionally recognized standing selected by the Company;
(b) as soon as practicable, but in any event within ninety thirty (9030) days after of the end of each quarter quarter, an unaudited income statement and statement of each fiscal year of the Company, unaudited statements of income and cash flows and balance sheet for such fiscal quarter, and an unaudited balance sheet, and a comparison between (x) the actual amounts as of and for such fiscal quarter and (y) the comparable amounts for the prior fiscal quarter and as included in the Budget (as defined in Section 3.1(c)) for such fiscal quarter, and a statement of stockholders’ equity as of the end of such fiscal quartermonth, 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); andreasonable detail;
(c) upon request of a Major Investor, as soon as practicablepracticable after the end of each month, but and in any event within thirty (30) days before thereafter, a balance sheet of the Company as of the end of each such month, and a statement of income and a statement of cash flows of the Company for such month and for the current fiscal year to date, including a comparison to plan figures for such period, prepared in accordance with generally accepted accounting principles consistently applied (except as noted thereon), with the exception that no notes need be attached to such statements and month-end audit adjustments may not have been made.
(d) upon request of a Major Investor, a budget and business plan for the next fiscal year, a budget and business plan for the next fiscal year, prepared on a monthly basis, including balance sheets, income statements, and statements of cash flow for such months and, promptly after as soon as prepared, any other budgets or revised budgets prepared by the Company Company;
(such budget and business plan that is approved by the Board e) upon request of Directors is collectively referred to herein as the “Budget”). Ifa Major Investor, for any period, the Company has any subsidiary whose accounts are consolidated with those an annual summary capitalization table of the Company, then in respect of ; and
(f) such period other information relating to the financial statements delivered pursuant to the foregoing sections shall be the consolidated and consolidating financial statements condition, business or corporate affairs of the Company and all such consolidated subsidiaries. Notwithstanding anything else in this Section 3.1 as the Major Investor may from time to the contrarytime request, provided, however, that the Company may cease providing the information set forth in this 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 shall not be obligated under this subsection (f) or any other subsection of Section 3.1 shall 2.1 to provide information that it deems in good faith to be reinstated at such time as the Company is no longer actively employing its commercially reasonable efforts to cause such registration statement to become effectivea trade secret or similar confidential information.
Appears in 1 contract
Delivery of Financial Statements. The Company Each Holder shall deliver be -------------------------------- entitled to each Major Investor, provided that the Board of Directors has not reasonably determined that such Major Investor is a Competitor of the Companyreceive:
(a) as As soon as practicable, but in any event within one hundred eighty ninety (18090) days after the end of each fiscal year of the Company (i) Company, 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 (iii) a statement of stockholders’ stockholder's 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 or regionally recognized standing selected by the Company;
(b) as soon as practicable, but in any event within ninety forty- five (9045) days after the end of each quarter of the first three (3) quarters of each fiscal year of the Company, an unaudited statements profit or loss statement, a statement of income and cash flows for such fiscal quarter, quarter and an unaudited balance sheet, and a comparison between (x) the actual amounts as of and for such fiscal quarter and (y) the comparable amounts for the prior fiscal quarter and as included in the Budget (as defined in Section 3.1(c)) for such fiscal quarter, and a statement of stockholders’ equity sheet as of the end of such fiscal quarter;
(c) within thirty (30) days of the end of each month, all an unaudited income statement and a statement of cash flows and balance sheet for and as of the end of such month, including a comparison of the Company's actual results with its budget;
(d) with respect to the financial statements called for in subsections (b) and (c) of this Section 2.1, an instrument executed by the Chief Financial Officer or President of the Company and 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); andadjustment;
(ce) as soon as practicable, but in any event within thirty (30) days before after the end of each fiscal year, a budget and business plan for the next fiscal year, prepared on a monthly basis, including balance sheets, income statements, sheets and sources and applications of funds statements of cash flow for such months and, promptly after as soon as prepared, any other budgets or revised budgets prepared by the Company Company; and
(f) such budget and business plan that is approved by the Board of Directors is collectively referred other information relating to herein as the “Budget”). 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 condition, business, prospects or corporate affairs of the Company and all such consolidated subsidiaries. Notwithstanding anything else in this Section 3.1 as the Holders may from time to the contrarytime request, provided, however, that the Company may cease providing the information set forth in this 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 shall not be obligated under this subsection (f) or any other subsection of Section 3.1 shall 2.1 to provide information which it deems in good faith to be reinstated at such time as the Company is no longer actively employing its commercially reasonable efforts to cause such registration statement to become effectivea trade secret or similar confidential information.
Appears in 1 contract
Delivery of Financial Statements. The Company shall deliver to each Major Investor, Investor (provided that the Board of Directors has not reasonably determined that such Major Investor is a Competitor of the Company:Competitor):
(a) as soon as practicable, but in any event within one hundred eighty (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 (iii) a statement of stockholders’ equity as of the end of such year, prepared in accordance with GAAP, with all such financial statements audited and certified by an independent public accountants accounting firm of nationally or regionally recognized standing selected by the Company;Board of Directors, with the approval of a majority of the Preferred Directors, including at least one Series A Director.
(b) as soon as practicable, but in any event within ninety forty-five (9045) days after the end of each quarter of each fiscal year of the Company, unaudited statements of income and cash flows for such fiscal quarter, and an unaudited balance sheet, and a comparison between (x) the actual amounts as of and for such fiscal quarter and (y) the comparable amounts for the prior fiscal quarter and as included in the Budget (as defined in Section 3.1(c)) for such fiscal quarter, 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 thirty within forty-five (3045) days before after the end of each 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 the Major Investors to calculate their respective percentage equity ownership in the Company, and certified by the proper authorized officers of the Company as being true, complete, and correct;
(d) as soon as reasonably practicable, but in any event within forty-five (45) days following the end of each fiscal year, a the capital and operating budget of the Company and business plan its subsidiaries for the next fiscal year, prepared setting forth revenue, anticipated expenses and cash position on a monthly 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 (such budget and business plan that is basis as approved by the Board of Directors (provided that such capital and operating budget shall be approved by the Board of Directors no later than thirty (30) days following the end of the fiscal year immediately preceding the fiscal year to which such budget applies); and
(e) such other information relating to the financial condition, capitalization, 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 is collectively referred a trade secret or highly confidential information, as determined by the Board of Directors in good faith, including a majority of the Preferred Directors, including at least one Series A Director (unless covered by an enforceable confidentiality agreement, in a form acceptable to herein as the “Budget”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 Section Subsection 3.1 to the contrary, the Company may cease providing the information set forth in this Section 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 Section 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 (Kymera 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:
(a) as soon as practicable, but in any event within one hundred eighty twenty (180120) 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 (iii) a statement of stockholders’ ' equity as of the end of such year, ; all such financial statements prepared in accordance with GAAP and audited and certified by independent public accountants of nationally or regionally recognized standing selected by the Company;
(b) as soon as practicable, but in any event within ninety forty-five (9045) days after the end of each 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 comparison between (x) the actual amounts as of and for such fiscal quarter and (y) the comparable amounts for the prior fiscal quarter and as included in the Budget (as defined in Section 3.1(c)) for such fiscal quarter, sheet and a statement of stockholders’ ' equity as of the end of such fiscal quarter, 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 thirty (30) days before the end of each fiscal year, a budget and business operating plan for the next fiscal yearyear (the "Budget"), prepared on a monthly 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 Company; and
(such budget d) upon request, with respect to the financial statements called for in Subsection 3.1(a), Subsection 3.1(b), and business plan that is approved Subsection 3.1(c), an instrument executed by the Board chief financial officer and chief executive officer of Directors is collectively referred 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. Notwithstanding any of the foregoing, the Company shall not be obligated under this Subsection 3.1 to herein as provide information (i) that the “Budget”)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 Section Subsection 3.1 to the contrary, the Company may cease providing the information set forth in this Section Subsection 3.1 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 offeringoffering or Direct Listing; provided that the Company’s 's covenants under this Section 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. For purposes of this Section 3.1, Qualcomm Ventures LLC, its Affiliates, and each of their permitted successors and assigns (collectively, “Qualcomm”) shall be deemed to be a “Major Investor” and entitled to the delivery of financial information as permitted herein to the Major Investors of the Company. The provisions of this Section 3.1 as it relates to the right of Qualcomm to receive financial information of the Company may be amended and the observance of any term thereof may be waived only with the written consent of Qualcomm.
Appears in 1 contract
Delivery of Financial Statements. The Company shall deliver to each Investor holding, and to transferees of, at least three hundred thousand (300,000) shares of Registrable Securities (as adjusted to reflect stock dividends, stock splits and recapitalizations) (each a "Major Investor, provided that the Board of Directors has not reasonably determined that such Major Investor is a Competitor of the Company:"):
(a) as soon as practicable, but in any event within one hundred eighty ninety (18090) days after the end of each fiscal year of the Company (i) Company, 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 (iii) a statement of stockholders’ stockholder's 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 an independent public accountants accounting firm of nationally or regionally recognized standing selected by the Company;
(b) as soon as practicable, but in any event within ninety forty-five (9045) days after the end of each quarter of the first three (3) quarters of each fiscal year of the Company, an unaudited statements profit or loss statement, a statement of income and cash flows for such fiscal quarter, quarter and an unaudited balance sheet, and a comparison between (x) the actual amounts as of and for such fiscal quarter and (y) the comparable amounts for the prior fiscal quarter and as included in the Budget (as defined in Section 3.1(c)) for such fiscal quarter, and a statement of stockholders’ equity sheet 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 and 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) adjustment, provided that the foregoing shall not contain all notes thereto that may be required in accordance restrict the right of the Company to change its accounting principles consistent with GAAP), if the Board of Directors determines that it is in the best interest of the Company to do so; and
(cd) 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, prepared on a monthly 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 (such budget and business plan that is approved by the Board of Directors is collectively referred information relating to herein as the “Budget”). 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 condition, business, prospects or corporate affairs of the Company and all such consolidated subsidiaries. Notwithstanding anything else in this Section 3.1 as the Major Investor or any assignee of the Investor may from time to the contrarytime reasonably request, provided, however, that the Company may cease providing the information set forth in this 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 shall not be obligated under this subsection (d) or any other subsection of Section 3.1 shall 2.1 to provide information which it deems in good faith to be reinstated at such time as the Company is no longer actively employing its commercially reasonable efforts to cause such registration statement to become effectivea trade secret or similar confidential information.
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 a Competitor of the Company:
(a) as soon as practicable, but in any event within one hundred eighty (180) 90 days after the end of each fiscal year of the Company (i) Company, commencing with the fiscal year ending December 31, 1996 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 (iii) a statement of stockholders’ stockholder's equity as of the end of such year, all and a schedule as to the sources and applications of funds for such 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 of nationally or regionally recognized standing selected by the CompanyCompany but subject to the reasonable satisfaction of the Investor;
(b) as soon as practicable, but in any event within ninety (90) 45 days after the end of each quarter of the first three quarters of each fiscal year of the Company, unaudited statements of income and cash flows for such fiscal quarter, and an unaudited balance sheetprofit or loss statement, schedule as to the sources and a comparison between (x) the actual amounts as application of and funds for such fiscal quarter and (y) the comparable amounts for the prior fiscal quarter and as included in the Budget (as defined in Section 3.1(c)) for such fiscal quarter, an unaudited balance sheet and a statement of stockholders’ ' equity as of the end of such fiscal quarterquarter and 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 number of shares of Common Stock issuable upon conversion or exercise of any outstanding securities convertible or exercisable for shares of Common Stock and the exchange ratio or exercise price applicable thereto, all prepared in accordance with GAAP (except that such financial statements may (i) be subject sufficient detail as to normal year-end audit adjustments; and (ii) not contain all notes thereto that may be required permit the Investor to calculate its percentage equity ownership in accordance with GAAP); andthe Company.
(c) within 30 days of the end of each month, an unaudited income statement and schedule as to the sources and application of funds and balance sheet for and as of the end of such month, in reasonable detail;
(d) as soon as practicable, but in any event thirty (30) 30 days before prior to the end of each fiscal year, a an operating budget and business plan for the next fiscal year, prepared on a monthly basis, including balance sheets, income statements, sheets and sources and applications of funds statements of cash flow for such months and, promptly after as soon as prepared, any other budgets or revised budgets prepared by the Company Company;
(such budget and business plan that is approved by the Board of Directors is collectively referred e) with respect to herein as the “Budget”). 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 called for in subsections (b) and (c) of this Section 6.1, an instrument executed by the Company's chief financial officer or president certifying that such financials were prepared in accordance with gaap consistently applied and with prior practice for earlier periods (with the exception of footnotes that may be required by gaap) and fairly present the Company's financial condition and its results of operation for the period specified, subject to year-end audit adjustments; and
(f) such other information relating to the foregoing sections shall be the consolidated and consolidating financial statements condition, business, prospects or corporate affairs of the Company and all such consolidated subsidiaries. Notwithstanding anything else in this Section 3.1 as the Investor or any assignee of the Investor may from time to the contrarytime request, provided, however, that the Company may cease providing the information set forth in this 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 shall not be obligated under this subsection (f) or any other subsection of Section 3.1 shall 6.1 to provide information which it deems in good faith to be reinstated at such time as the Company is no longer actively employing its commercially reasonable efforts to cause such registration statement to become effectivea trade secret or similar confidential information.
Appears in 1 contract
Delivery of Financial Statements. The Company NEWCO 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-------------------------------- Stockholder:
(a) as soon as practicable, but in any event within one hundred eighty (180) 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 (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;
(b) as soon as practicable, but in any event within ninety (90) days after the end of each quarter of each fiscal year of the CompanyNEWCO, unaudited statements of an income and cash flows statement for such fiscal quarteryear, and an unaudited a balance sheet, sheet of NEWCO and a comparison between (x) the actual amounts statement of stockholder's equity as of and for such fiscal quarter and (y) the comparable amounts for the prior fiscal quarter and as included in the Budget (as defined in Section 3.1(c)) for such fiscal quarteryear-end, and a statement of stockholders’ equity cash flows for such year, including notes thereto, such year-end financial reports to be in reasonable detail, prepared in accordance with Brazilian generally accepted accounting principles on the basis of the constant currency methodology required by the Brazilian Securities Commission-CVM for public- held companies (the "Accounting Principles"), and audited and certified by independent public accountants of international recognized standing selected by NEWCO;
(b) within fifteen (15) days of the end of each month, an unaudited income statement, a balance sheet an a statement of cash flows for and as of the end of such fiscal month, in reasonably detail;
(c) within fifteen (15) days of the end of each calendar quarter, all a quarterly operations report summarizing activities during the preceding quarter;
(d) with respect to the financial statements called for in subsection (b) of this Section 6.4, an instrument executed by the Chief Financial Officer or President of NEWCO certifying that such financials were prepared in accordance with GAAP (except that such Brazilian generally accepted accounting principles on the basis of the constant currency methodology required by the Brazilian Securities Commission-CVM for public-held companies consistently applied with prior practice for earlier periods and fairly present the financial statements may (i) be condition of NEWCO and its results of operation for the period specified, subject to normal quarterly review and year-end audit adjustments; and (ii) not contain all notes thereto that may be required in accordance with GAAP)adjustment; and
(ce) such other information relating to the financial condition, business, prospects, or corporate affairs of NEWCO as soon as practicablethe Stockholders may from time to time request, but in any event thirty provided, however, that NEWCO shall not be obligated under this subsection (30e) days before the end of each fiscal year, a budget and business plan for the next fiscal year, prepared on a monthly basis, including balance sheets, income statements, and statements of cash flow for such months and, promptly after prepared, or any other budgets subsection of Section 6.4 to provide information which it deems in good faith to be a trade secret or revised budgets prepared by the Company (such budget and business plan that is approved by the Board of Directors is collectively referred similar confidential information which it deems in good faith to herein as the “Budget”)be a trade secret or similar confidential 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. Notwithstanding anything else in this Section 3.1 to the contrary, the Company may cease providing the information The covenant set forth in this Section 3.1 during the period starting with the date sixty (60) days before the Company’s good-faith estimate 6.4 shall terminate and be of the date of filing of a registration statement no further force or effect if it reasonably concludes it must do so to comply with the SEC rules applicable to such registration statement IWC and related offering; provided that the Company’s covenants under this Section 3.1 RBS shall be reinstated at such time as the Company is no longer actively employing its commercially reasonable efforts control NEWCO due to cause such registration statement the legitimate sale of Common Stock of NEWCO to become effectivethird parties, without prejudice of each Stockholder rights under the applicable Brazilian legislation.
Appears in 1 contract
Sources: Stockholder Agreement (International Wireless Communications Holdings Inc)
Delivery of Financial Statements. The Company shall will deliver to each Major Investor, provided that the Board of Directors has not reasonably determined that such Major Investor recipient is a Competitor of the Company:
(a) as soon as practicable, but in any event within one hundred eighty twenty (180120) 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 Section 3.1(e)) for such year, and (iii) a statement of stockholdersshareholders’ 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;
(b) as soon as practicable, but in any event within ninety sixty (9060) days after the end of each fiscal quarter of each fiscal year of the Company, unaudited statements of income and cash flows for such fiscal quarter, and an unaudited balance sheet, and a comparison between (x) the actual amounts as of and for such fiscal quarter and (y) the comparable amounts for the prior fiscal quarter and as included in the Budget (as defined in Section 3.1(c)) for such fiscal quarter, sheet and a statement of stockholdersshareholders’ 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 sixty (60) days after the end of each fiscal quarter of each fiscal year, a capitalization table 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 the Major Investors to calculate their respective percentage equity ownership in the Company;
(d) such other information relating to the business 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 Section 3.1(d) to provide any such requested information more than once a fiscal quarter to any Major Investor or provide information (i) that the Company determines in its sole discretion to be a trade secret, confidential information, or competitively sensitive; (ii) the disclosure of which would adversely affect the attorney-client privilege between the Company and its counsel; or (iii) that is financial in nature; and
(e) as soon as practicable, but in any event within thirty (30) days before following the end of each fiscal year, a budget and business plan for the next fiscal year, prepared on a monthly 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 (such budget and business plan that is year approved by the Board of Directors is collectively referred to herein as (collectively, the “Budget”). 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 will be the consolidated and consolidating financial statements of the Company and all such consolidated subsidiaries. Notwithstanding anything else in this Section 3.1 to the contrary, the Company may cease providing the information set forth in this 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 Section 3.1 shall will 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 (Caris Life Sciences, Inc.)
Delivery of Financial Statements. The Company shall deliver to each shall, promptly following any request by a Major Investor, provided that the Board of Directors has not reasonably determined that deliver to such Major Investor is (other than a Major Investor reasonably deemed by the Company to be a Competitor of the Company:):
(a) as soon as practicable, but in any event within one hundred eighty (180) 120 days after the end of each fiscal year of the Company (i) or such longer period of time as may be required by the Company’s independent public accountants), 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 (iii) a statement of stockholders’ stockholder’s 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 U.S. generally accepted accounting principles (“GAAP”) and audited and certified by an independent public accountants accounting firm of nationally or regionally recognized standing selected by the Company;
(b) as soon as practicable, but in any event within ninety (90) 45 days after the end of each quarter of each fiscal year of the Company, an unaudited statements income statement and statement of income and cash flows for such fiscal quarter, quarter and an unaudited balance sheet, and a comparison between (x) the actual amounts as of and for such fiscal quarter and (y) the comparable amounts for the prior fiscal quarter and as included in the Budget (as defined in Section 3.1(c)) for such fiscal quarter, and a statement of stockholders’ equity 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; and (ii) not contain all notes thereto that may be required in accordance with GAAP); andreasonable detail;
(c) as soon as practicable, but in any event thirty (30) within 30 days before after the end of each of the four (4) 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 (including, in the case of convertible debt securities, the face amount, issue date, maturity date, interest rate, conversion discount and valuation cap to the extent applicable), 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 the Major Investors to calculate their respective percentage equity ownership in the Company;
(d) within 30 days from the start of each fiscal year, a budget and business plan for the next such fiscal year, prepared on a monthly basis, including balance sheets, income statements, and statements of cash flow for ; and
(e) such months and, promptly after prepared, any other budgets or revised budgets prepared by the Company (such budget and business plan that is approved by the Board of Directors is collectively referred information relating to herein as the “Budget”). 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 condition, business, prospects, or corporate affairs of the Company and all such consolidated subsidiaries. Notwithstanding anything else in this Section 3.1 as any Major Investor may from time to the contrarytime reasonably request; provided, however, that the Company may cease providing the shall not be obligated under this Subsection 2.1 to provide information set forth in this Section 3.1 during the period starting with the date sixty which (60i) 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 considers to comply with be a trade secret or similarly highly confidential information or (ii) the SEC rules applicable to such registration statement and related offering; provided that disclosure of which would adversely affect the Company’s covenants under this Section 3.1 shall be reinstated at such time as attorney-client privilege between the Company is no longer actively employing and its commercially reasonable efforts to cause such registration statement to become effectivecounsel.
Appears in 1 contract
Sources: Investors’ Rights Agreement (Arcus Biosciences, Inc.)
Delivery of Financial Statements. (a) The Company shall deliver to each Major Investor, provided that Investor who holds any shares of Preferred Stock or the Board of Directors has not reasonably determined that such Major Investor is a Competitor of the Companyshares issued or issuable upon conversion thereof:
(a) as soon as practicable, but in any event within one hundred eighty (180) 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 (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;
(b) as soon as practicable, but in any event within ninety (90) days after the end of each quarter fiscal year of the Company, an income statement for such fiscal year, a balance sheet of the Company and statement of shareholder's equity as of the end of such year, 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 audited and certified by independent public accountants of nationally recognized standing selected by the Company;
(ii) 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 profit or loss statement, statement of income and cash flows for such fiscal quarter, quarter and an unaudited balance sheet, and a comparison between (x) the actual amounts as of and for such fiscal quarter and (y) the comparable amounts for the prior fiscal quarter and as included in the Budget (as defined in Section 3.1(c)) for such fiscal quarter, and a statement of stockholders’ equity sheet as of the end of such fiscal quarter;
(b) The Company shall deliver to each Investor who holds at least 100,000 shares of Series A Preferred Stock, all prepared in accordance with GAAP Series C Preferred Stock, Series E Preferred Stock, Series F Preferred Stock or Series J Preferred Stock (except that such financial statements may or Common Stock issued or issuable upon conversion thereof, as adjusted for stock splits, stock dividends, and the like):
(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 thirty (30) days before prior to the end of each fiscal year, a budget and business plan for the next fiscal year, prepared on a monthly basis, including balance sheets, income statements, sheets and statements of cash flow flows for such months (the "Annual Financial Plan") and, promptly after as soon as prepared, any other budgets or revised budgets prepared by the Company Company;
(such budget and business plan that is approved by the Board of Directors is collectively referred to herein as the “Budget”). If, for any period, the Company has any subsidiary whose accounts are consolidated with those ii) within twenty (20) days of the Companyend of each month, then in respect an unaudited income statement and statement of cash flows and balance sheet for and as of the end of such period month, in reasonable detail, and comparing the results to the Annual Financial Plan and to the prior year comparable period;
(iii) with respect to the financial statements delivered pursuant to called for in subsections (a)(ii) and (b)(ii) of this Section 2.1, an instrument executed by the foregoing sections shall be the consolidated and consolidating financial statements Chief Financial Officer or President of the Company and all certifying that such consolidated subsidiaries. Notwithstanding anything else financials were prepared in this Section 3.1 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; and
(iv) such other information relating to the contraryfinancial condition, business, prospects or corporate affairs of the Company as any of such Investors or any assignee of any of such Investors may cease providing the information set forth in this 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 from time to comply with the SEC rules applicable to such registration statement and related offeringtime request; provided provided, however, that the Company’s covenants Company shall not be obligated under this subsection (b)(iv) or any other subsection of Section 3.1 shall 2.1 to provide information which it deems in good faith to be reinstated at such time as the Company is no longer actively employing its commercially reasonable efforts to cause such registration statement to become effectivea trade secret or similar confidential information.
Appears in 1 contract
Delivery of Financial Statements. The Company shall deliver to each Major Investor, provided that the Board so long as such Investor holds at least 200,000 shares of Directors has not reasonably determined that such Major Investor is a Competitor of the Company:Registrable Securities (as adjusted for stock splits, recombinations or reclassifications):
(a) as soon as practicable, but in any event within one hundred eighty twenty (180120) days after the end of each fiscal year of the Company (i) Company, 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 (iii) a statement of stockholders’ shareholder's 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 or regionally recognized standing selected by the Company;
(b) as soon as practicable, but in any event within ninety thirty (9030) days after of the end of each quarter of each fiscal year of the Companymonth, unaudited statements of income and cash flows for such fiscal quarter, and an unaudited balance sheet, and a comparison between (x) the actual amounts as of and for such fiscal quarter and (y) the comparable amounts for the prior fiscal quarter and as included in the Budget (as defined in Section 3.1(c)) for such fiscal quarter, income statement and a statement of stockholders’ equity cash flows and balance sheet for and 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); andsuch
(c) as soon as practicable, but in any event thirty (30) days before by the end of each fiscal year, a budget and business plan for the next fiscal year, prepared on a monthly basis, including balance sheets, income statements, statements and statements of cash flow flows for such months and, promptly after as soon as prepared, any other budgets or revised budgets prepared by the Company Company;
(such budget and business plan that is approved by the Board of Directors is collectively referred d) with respect to herein as the “Budget”). 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 called for in subsection (b) of this Section 2.1, an instrument executed by the foregoing sections shall be the consolidated and consolidating financial statements Chief Financial Officer or President of the Company and all certifying that such consolidated subsidiaries. Notwithstanding anything else financials were prepared in this Section 3.1 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;
(e) such other information relating to the contraryfinancial condition, business, prospects or corporate affairs of the Company may cease providing as the information set forth in this Section 3.1 during the period starting with the date sixty (60) days before the Company’s good-faith estimate Investor or any assignee of the date of filing of a registration statement if it Investor may from time to time reasonably concludes it must do so to comply with the SEC rules applicable to such registration statement and related offeringrequest; provided provided, however, that the Company’s covenants Company shall not be obligated under this subsection (e) or any other subsection of Section 3.1 shall 2.1 to provide information which it deems in good faith to be reinstated at a trade secret or similar confidential information unless the Investor agrees in writing to hold such time as the Company is no longer actively employing its commercially reasonable efforts to cause such registration statement to become effectiveinformation in confidence.
Appears in 1 contract
Sources: Investors' Rights Agreement (Micro 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:
(a) as soon as practicable, but in any event within one hundred eighty twenty (180120) days after the end of each fiscal year of the Company beginning with fiscal year 2021 (i) a balance sheet as of the end of such year, (ii) statements of income and of cash flows 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;
(b) as soon as practicable, but in any event within ninety forty-five (9045) days after the end of each quarter 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 an unaudited balance sheet, and a comparison between (x) the actual amounts as of and for such fiscal quarter and (y) the comparable amounts for the prior fiscal quarter and as included in the Budget (as defined in Section 3.1(c)) for such fiscal quarter, 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 thirty no later than forty-five (3045) days before after the end start of each fiscal year, a budget for such fiscal year (collectively, the “Budget”), approved by the Board of Directors and business plan for the next fiscal year, prepared on a monthly 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; and
(d) 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(d) to provide information (such budget 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 business plan that is approved by the Board of Directors is collectively referred to herein as the “Budget”)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 Section Subsection 3.1 to the contrary, the Company may cease providing the information set forth in this Section 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 Section 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 (AN2 Therapeutics, Inc.)
Delivery of Financial Statements. The Company shall shall, upon request, deliver to each Investor that holds at least 600,000 shares of Registrable Securities (subject to appropriate adjustment for stock splits, stock dividends, combinations or the like) (a “Major Investor, provided that the Board of Directors has not reasonably determined that such Major Investor is a Competitor of the Company:”):
(a) as soon as practicable, but in any event within one hundred eighty twenty (180120) days after the end of each fiscal year of the Company (i) Company, 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 (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, unless waived by the Company’s Board of Directors (including each of the directors elected solely by the holders of Preferred Stock (each, a “Preferred Director”)), audited and certified by independent public accountants of nationally or regionally recognized standing selected by the Company;
(b) as soon as practicable, but in any event within ninety forty-five (9045) days after the end of each quarter of the first three (3) quarters of each fiscal year of the Company, an unaudited statements income statement, statement of income and cash flows for such fiscal quarter, quarter and an unaudited balance sheet, and a comparison between (x) the actual amounts as of and for such fiscal quarter and (y) the comparable amounts for the prior fiscal quarter and as included in the Budget (as defined in Section 3.1(c)) for such fiscal quarter, and a statement of stockholders’ equity 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; and (ii) not contain all notes thereto that may be required in accordance with GAAP); and;
(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) 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, prepared on a monthly basis, including balance sheets, income statements, statements and statements of cash flow flows for such months and, promptly after as soon as prepared, any other budgets or revised budgets prepared by the Company Company; and
(e) such budget and business plan that is approved by the Board of Directors is collectively referred other information relating to herein as the “Budget”). 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 condition, business or corporate affairs of the Company and all such consolidated subsidiaries. Notwithstanding anything else in this Section 3.1 as the Major Investor may from time to the contrarytime request, provided, however, that the Company may cease providing the shall not be obligated under this subsection (e) or any other subsection of Section 2.1 to provide information set forth in this 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 Section 3.1 shall Board of Directors deems in good faith to be reinstated at such time as the Company is no longer actively employing its commercially reasonable efforts to cause such registration statement to become effectivea trade secret or similar confidential information.
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 Investor for so long as such Major Investor is a Competitor of the Company:holds Shares.
(a) as soon as practicable, but in any event within one hundred eighty (180) 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 (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;
(b) as soon as practicable, but in any event within ninety (90) days after the end of each quarter fiscal year of the Company, an income statement for such fiscal year, a balance sheet of the Company and statement of shareholder's equity as of the end of such year, 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 Italian generally accepted accounting principles ("GAAP"), and 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 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 an unaudited balance sheetprofit or loss statement, schedule as to the source and a comparison between (x) the actual amounts as application of and funds for such fiscal quarter and (y) the comparable amounts for the prior fiscal quarter and as included in the Budget (as defined in Section 3.1(c)) for such fiscal quarter, and a statement of stockholders’ equity 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; and (ii) not contain all notes thereto that may be required in accordance with GAAP); and.
(c) within thirty (30) days of the end of each month, an unaudited income statement and schedule as to the sources and application of funds and balance sheet for and as of the end of such month, in reasonable detail;
(d) as soon as practicable, but in any event thirty (30) days before prior to the end of each fiscal year, a budget and business plan for the next fiscal year, prepared on a monthly basis, including balance sheets, income statements, sheets and sources and applications of funds statements of cash flow for such months and, promptly after as soon as prepared, any other budgets or revised budgets prepared by the Company Company;
(such budget and business plan that is approved by the Board of Directors is collectively referred e) with respect to herein as the “Budget”). 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 called for in subsections (b) and (c) of this Section 2.1, an instrument executed by the foregoing sections shall be the consolidated and consolidating financial statements Chief Financial Officer on President of the Company and all certifying that such consolidated subsidiaries. Notwithstanding anything else financials were prepared in this Section 3.1 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;
(f) such other information relating to the contraryfinancial condition, business, prospects or corporate affairs of the Company may cease providing as the information set forth in this Section 3.1 during the period starting with the date sixty (60) days before the Company’s good-faith estimate Investor or any assignee of the date of filing of a registration statement if it reasonably concludes it must do so Investor may from time to comply with the SEC rules applicable to such registration statement and related offering; provided time request, provided, however, that the Company’s covenants Company shall not be obligated under this subsection (f) or any other subsection of Section 3.1 shall 2.1 to provide information which it deems in good faith to be reinstated at such time as the Company is no longer actively employing its commercially reasonable efforts to cause such registration statement to become effectivea trade secret or similar confidential information.
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:
(a) so long as soon as practicablesuch Investor holds at least 150,000 shares of Registrable Securities, but in any event within one hundred eighty (180) 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 (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;
(b) as soon as practicable, but in any event within ninety (90) days after the end of each quarter fiscal year of the Company, an income statement for such fiscal year, a balance sheet of the Company and statement of stockholder's equity as of the end of such year, 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 audited and certified by independent public accountants of nationally recognized standing selected by the Company;
(b) so long as such Investor holds at least 150,000 shares of Registrable Securities, 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 and statement of income and cash flows for such fiscal quarter, quarter and an unaudited balance sheet, and a comparison between (x) the actual amounts as of and for such fiscal quarter and (y) the comparable amounts for the prior fiscal quarter and as included in the Budget (as defined in Section 3.1(c)) for such fiscal quarter, 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); and;
(c) so long as such Investor holds at least 150,000 shares of Registrable Securities, 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 and balance sheet for and as of the end of such month, in reasonable detail;
(d) so long as such Investor holds at least 150,000 shares of Registrable Securities, as soon as practicable, but in any event at least thirty (30) days prior to the end of each fiscal year, a budget and business plan for the next fiscal year, prepared on a monthly basis, including balance sheets, income statements, sheets and statements of cash flow flows, for such months months, and, promptly after as soon as prepared, any other budgets or revised budgets prepared by the Company Company; and
(such budget and business plan that is approved by the Board of Directors is collectively referred e) with respect to herein as the “Budget”). 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 called for in subsections (b) and (c) of this Section 2.1, an instrument executed by the foregoing sections shall 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 (with the exception of footnotes that may be required by GAAP) and fairly present the consolidated and consolidating financial statements condition of the Company and all such consolidated subsidiaries. Notwithstanding anything else in this Section 3.1 to the contrary, the Company may cease providing the information set forth in this Section 3.1 during its results of operation for the period starting with the date sixty (60) days before the Company’s goodspecified, subject to year-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 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 effectiveend audit adjustment.
Appears in 1 contract
Sources: Investors' Rights Agreement (Motive Communications Inc)
Delivery of Financial Statements. The From and after the date hereof, the Company shall deliver to each Major Investorthe Qualified Holder, provided that the Board of Directors has not reasonably determined that such Major Investor is a Competitor of the Companyif any:
(a) as soon as practicableavailable, but in any event within one hundred eighty (180) 90 days after the end of each fiscal year of the Company (i) a Company, an audited consolidated balance sheet of the Company and its consolidated Subsidiaries as of at the end of such fiscal year, (ii) and the related consolidated statements of income or operations, stockholders’ equity, comprehensive income (loss) and of cash flows for such year, and (iii) a statement of stockholders’ equity as of the end of such fiscal year, all in reasonable detail and prepared in accordance with generally accepted accounting principles (“GAAP”), such financial consolidated statements to be audited and certified accompanied by a report and opinion of an independent registered public accountants accounting firm of nationally recognized standing, which report and opinion shall be prepared in accordance with the standards of the Public Company Accounting Oversight Board or regionally recognized standing selected by the Companyits successor;
(b) as soon as practicableavailable, but in any event within ninety (90) 45 days after the end of each quarter of the first three fiscal quarters of each fiscal year of the Company, unaudited statements of income and cash flows for such fiscal quarter, and an unaudited consolidated balance sheet, sheet of the Company and a comparison between (x) the actual amounts its consolidated Subsidiaries as of and for such fiscal quarter and (y) the comparable amounts for the prior fiscal quarter and as included in the Budget (as defined in Section 3.1(c)) for such fiscal quarter, and a statement of stockholders’ equity as of at the end of such fiscal quarter, all prepared in accordance with GAAP (except that and the related unaudited consolidated statements of income or operations for such financial statements may (i) be subject to normal year-end audit adjustments; fiscal quarter and (ii) not contain all notes thereto that may be required in accordance with GAAP)for the portion of the Company’s fiscal year then ended and cash flows for the portion of the Company’s fiscal year then ended; and
(c) as soon as practicableavailable, but monthly management operating reports of the Company, in any event thirty (30) days before the end of each fiscal year, a budget such manner and business plan for the next fiscal year, prepared on a monthly 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 (such budget and business plan that is approved by form customarily provided to the Board of Directors is collectively referred or, if not provided to herein the Board of Directors, in such manner and form customarily provided to the Company’s senior management, and in any event including an unaudited operations statement (or income statement) and statement of cash flows for such month, and a balance sheet for and as the “Budget”). If, for any period, the Company has any subsidiary whose accounts are consolidated with those of the Company, then in respect end of such period the financial statements month, in reasonable detail. Documents required to be delivered pursuant to the foregoing sections Sections 3.1(a) or (b) above may be delivered electronically and if so delivered, shall be deemed to have been delivered on the consolidated and consolidating financial statements of date on which the Company and all posts such consolidated subsidiaries. Notwithstanding anything else in this Section 3.1 to the contrary, the Company may cease providing the information set forth in this Section 3.1 during the period starting with the date sixty (60) days before documents or provides a link thereto on the Company’s good-faith estimate of website on 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 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 effectiveInternet.
Appears in 1 contract
Sources: Participating Preferred Stock Purchase Agreement (Reliant Energy Inc)
Delivery of Financial Statements. The Company shall shall, upon request, 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:
(a) as soon as practicable, but in any event within one hundred eighty twenty (180120) days after the end of each fiscal year of the Company (i) Company, 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 (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 of nationally or regionally recognized standing selected by the Company;
(b) as soon as practicable, but in any event within ninety forty-five (9045) days after the end of each of the first three (3) quarters of each fiscal year of the Company, an unaudited income statement, statement of cash flows for such fiscal quarter, an unaudited balance sheet as of the end of such fiscal quarter and a capitalization table as of the end of such fiscal quarter;
(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) with respect to the financial statements called for in subsections (b) and (c) of this Section 2.1, 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 (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;
(e) as soon as practicable, but in any event within forty-five (45) days of the end of each quarter of each fiscal year of the Company, unaudited statements of income a written executive summary detailing the Company’s business and financial condition, business prospects, cash flows for such fiscal quarter, flow forecast and an unaudited balance sheet, and a comparison between (x) the actual amounts as of and for such fiscal quarter and (y) the comparable amounts for the prior fiscal quarter and as included in the Budget (as defined in Section 3.1(c)) for such fiscal quarter, 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)future financing plans; and
(cf) as soon as practicablewritten notice to attend, but in any event thirty (30) days before the end of each fiscal yearat such Investor’s own expense, a budget and business plan for the next fiscal year, prepared on a monthly 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 (such budget and business plan that is approved by the Board of Directors is collectively referred to herein as the “Budget”). If, for any period, the Company has any subsidiary whose accounts are consolidated with those an annual meeting of the Company, then in respect of such period the stockholders which shall include a business and 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 Section 3.1 to the contrary, the Company may cease providing the information set forth in this 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 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 effectiveupdate.
Appears in 1 contract
Delivery of Financial Statements. The Company shall deliver to each Major InvestorInvestor who so requests, provided that the Board of Directors has not reasonably determined that such Major Investor is a Competitor of the Company:
(a) as soon as practicable, but in any event within one hundred eighty (180) 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, 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;
(b) as soon as practicable, but in any event within ninety (90) days [***] after the end of each quarter 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 an unaudited balance sheet, and a comparison between (x) the actual amounts as of and for such fiscal quarter and (y) the comparable amounts for the prior fiscal quarter and as included in the Budget (as defined in Section 3.1(c)) for such fiscal quarter, sheet and a statement of stockholders’ equity as of the end of such fiscal quarter;
(c) such other information relating to the financial condition, all prepared in accordance with GAAP (except annual budget, business, prospects, or corporate affairs of the Company as any Investor may from time to time reasonably request; provided, however, that such financial statements may the Company shall not be obligated under this Subsection 4.1 to provide information (i) that the Company reasonably determines in good faith to be subject a trade secret or confidential information (unless covered by an enforceable confidentiality agreement, in a form acceptable to normal year-end audit adjustmentsthe Company); and or (ii) not contain all notes thereto that may be required in accordance with GAAP)the disclosure of which would adversely affect the attorney-client privilege between the Company and its counsel; and
(cd) as soon as practicable, but in any event thirty (30) days [***] before the end of each fiscal year, year and a budget and business plan for the next fiscal yearyear (collectively, the “Budget”), approved by the Board of Directors and prepared on a monthly [***] 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 (such budget and business plan that is approved by the Board of Directors is collectively referred to herein as the “Budget”)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 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 Section 3.1 Subsection 4.1 to the contrary, the Company may cease providing the information set forth in this Section 3.1 Subsection 4.1 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 Section 3.1 Subsection 4.1 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:
(a) as soon as practicable, but in any event within one hundred eighty (180) 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 (iii) a statement of stockholdersshareholders’ 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;
(b) as soon as practicable, but in any event within ninety (90) 45 days after the end of each quarter of the first three quarters of each fiscal year of the Company, unaudited statements of income and cash flows for such fiscal quarter, and an unaudited balance sheet, and a comparison between (x) the actual amounts as of and for such fiscal quarter and (y) the comparable amounts for the prior fiscal quarter and as included in the Budget (as defined in Section 3.1(c)) for such fiscal quarter, and a statement of stockholders’ equity 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; 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 thirty within sixty (3060) days before after the end of each fiscal year, the Company shall deliver to each Major Investor and its Affiliates (i) unaudited financial statements of the Company that contain the financial information necessary in order for each Major Investor and its Affiliates to prepare and file IRS Form 5471 with respect to the Company, (ii) a budget and business plan “PFIC Annual Information Statement” for the next prior fiscal year, prepared on a monthly basis, including balance sheets, income statementsyear containing the information required under Treasury Regulation 1.1295-1(g)(1), and statements of cash flow for (iii) such months and, promptly after prepared, any other budgets or revised budgets prepared by information reasonably requested in writing as is reasonably necessary to allow each Major Investor and its Affiliates to complete its respective tax filings in the Company (such budget and business plan that is approved by the Board of Directors is collectively referred to herein as the “Budget”)United States. 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 Section Subsection 3.1 to the contrary, the Company may cease providing the information set forth in this Section 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 Section 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 furnish the following information to each Holder who holds at least 125,000 shares of Registrable Securities (a "Major Investor, provided that the Board of Directors has not reasonably determined that such Major Investor is a Competitor of the Company:"):
(a) as soon as practicable, but in any event within one hundred eighty (180) 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 (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;
(b) as soon as practicable, but in any event within ninety (90) days after the end of each quarter of each fiscal year of the Company, unaudited statements of an income and cash flows statement for such fiscal quarteryear, a balance sheet of the Company and an unaudited balance sheet, and a comparison between (x) the actual amounts as of and for such fiscal quarter and (y) the comparable amounts for the prior fiscal quarter and as included in the Budget (as defined in Section 3.1(c)) for such fiscal quarter, and a statement of stockholders’ stockholder's equity as of the end of such fiscal quarteryear, all and a statement of cash flows for such year, such year-end financial reports to be in reasonable detail, prepared in accordance with GAAP generally accepted accounting principles (except that "GAAP") and audited by nationally recognized independent accountants;
(b) within forty-five (45) days of the end of each month and each quarter, an unaudited income statement and statement of cash flows and balance sheet for and as of the end of such financial statements may (i) be subject to normal year-end audit adjustments; and (ii) not contain all notes thereto that may be required month or quarter, in accordance with GAAP); andreasonable detail;
(c) as soon as practicable, but in any event thirty forty-five (3045) days before prior to the end of each fiscal year, a budget and business plan for the next fiscal year, prepared on a monthly basis, including balance sheets, income statements, sheets and statements of cash flow flows for such months and, promptly after as soon as prepared, any other budgets or revised budgets prepared by the Company Company;
(d) such budget and business plan that is approved by other information relating to the Board of Directors is collectively referred to herein as the “Budget”). Iffinancial condition, for any periodbusiness, the Company has any subsidiary whose accounts are consolidated with those prospects, or corporate affairs of the Company, then including any amended or new Business Plan of the Company, as the Major Investors or any assignee of the Major Investors may from time to time request, provided, however, that the Company shall not be obligated under this subsection (e) or any other subsection of Section 2.1 to provide information which it deems in respect of such period the financial statements delivered good faith to be a trade secret or similar confidential information. The information provided pursuant to the foregoing sections this subsection 2.1 shall be the consolidated and consolidating financial statements used by each Major Investor or any permitted assignee of each Major Investor solely in furtherance of its interests as an investor in the Company and each such Major Investor and any permitted assignee of such Major Investor agrees to hold in confidence and trust and to act in a fiduciary manner with respect to all information provided in connection with this subsection 2.1, unless such consolidated subsidiaries. Notwithstanding anything else in this Section 3.1 information (i) was known by such Major Investor or permitted assignee prior to its disclosure to them by the contraryCompany, (ii) has been, is now or later becomes rightfully learned by such Major Investor or permitted assignee without restriction as a matter of right by a third party not affiliated with or working for the Company may cease providing the nor under restriction or duty imposed by the
1. The Company shall use reasonable efforts to mark ▇▇▇h information as confidential. The obligations set forth in this paragraph will survive any termination of this subsection 2.1 or this Agreement. This Section 3.1 during the period starting 2.1 may be amended only with the date sixty (60) days before written consent of holders of at least 66.667% of the Common Stock issued or issuable upon conversion of 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 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's Series B Preferred Stock.
Appears in 1 contract
Delivery of Financial Statements. The Company shall shall, subject to Section 1.5 below, 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:Major Holders (as defined below):
(a) as soon as practicable, but in any event within one hundred eighty (180) 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 (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;
(b) as 1.1.1. As soon as practicable, but in any event within ninety (90) days after the end of each quarter fiscal year of the Company, a balance sheet of the Company as of the end of such year, and statements of income and statements of cash flow of the Company for such year, setting forth in each case in comparative form the figures for the previous fiscal year, all in reasonable detail, prepared in accordance with International Financial Reporting Standards (“IFRS”), audited by an accounting firm in the State of Israel associated with one of the “Big 4” firms of Independent Certified Public Accountants, and accompanied by an opinion of such firm which opinion shall state that such balance sheet, statements of income and cash flow have been prepared in accordance with IFRS 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 has been made in accordance with IFRS;
1.1.2. As soon as practicable, but in any event within sixty (60) days after the end of the first three quarters of each fiscal year of the Company, unaudited statements of income and cash flows for such fiscal quarter, and an unaudited balance sheet, and a comparison between (x) sheet of the actual amounts as of and for such fiscal quarter and (y) the comparable amounts for the prior fiscal quarter and as included in the Budget (as defined in Section 3.1(c)) for such fiscal quarter, and a statement of stockholders’ equity Company as of the end of each such period and unaudited statements of (i) income and (ii) cash flow of the Company for such period and, in the case of the first, second and third quarterly periods, for the period from the beginning of the current fiscal quarteryear to the end of such quarterly period, setting forth in each case in comparative form the figures for the corresponding period of the previous fiscal year, all in reasonable detail, 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 (IFRS 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 changes resulting from 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 thirty (30) days before the end of each fiscal year, a budget and business plan for the next fiscal year, prepared on a monthly basis, including balance sheets, income statements, and statements all reviewed by an accounting firm in the State of cash flow for such months and, promptly after prepared, any other budgets or revised budgets prepared by the Company (such budget and business plan that is approved by the Board Israel associated with one of Directors is collectively referred to herein as the “Budget”)Big 4” firms of Independent Certified Public Accountants;
1.1.3. IfPromptly upon request of the Major Holder, for any period, the Company has any subsidiary whose accounts are consolidated with those an up-to-date capitalization table of the Company, then showing the number of shares of each class and series of share capital and securities convertible into or exercisable for shares of share capital outstanding at the end of the period, the Ordinary Shares issuable upon conversion or exercise of any outstanding securities convertible or exercisable for Ordinary shares and the exchange ratio or exercise price applicable thereto, and the number of shares of issued share options and share options not yet issued but reserved for issuance, if any, all in respect of such period sufficient detail as to permit the Major Holder to calculate its respective percentage equity ownership in the Company, and certified by the chief financial statements delivered pursuant to the foregoing sections shall be the consolidated and consolidating financial statements officer or chief executive officer of the Company as being true, complete, and all such consolidated subsidiaries. Notwithstanding anything else in this Section 3.1 to the contrary, the Company may cease providing the information set forth in this 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 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 effectivecorrect.
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 CompanyHolder:
(a) as soon as practicable, but in any event within one hundred eighty ninety (18090) days after the end of each fiscal year of the Company (i) Company, 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 (iii) a statement of stockholders’ shareholder's equity as of the end of such year, all and a schedule as to the sources and applications of funds for such year, such year-end financial statements reports to be in reasonable detail, prepared in accordance with United States generally accepted accounting principles ("GAAP"), and audited and certified by independent public accountants of nationally or regionally recognized standing selected by the Company;
(b) as soon as practicable, but in any event within ninety forty-five (9045) days after the end of each quarter 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 an unaudited balance sheetprofit or loss statement, schedule as to the sources and a comparison between (x) the actual amounts as application of and funds for such fiscal quarter and (y) the comparable amounts for the prior fiscal quarter and as included in the Budget (as defined in Section 3.1(c)) for such fiscal quarter, an unaudited balance sheet and a statement of stockholders’ shareholder's equity as of the end of such fiscal quarterquarter and 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 number of common shares issuable upon conversion or exercise of any outstanding securities convertible or exercisable for common shares and the exchange ratio or exercise price applicable thereto, all prepared in accordance with GAAP (except that such financial statements may (i) be subject sufficient detail as to normal year-end audit adjustments; and (ii) not contain all notes thereto that may be required permit the Holder to calculate its percentage equity ownership in accordance with GAAP); andthe Company.
(c) within thirty (30) days of the end of each month, an unaudited income statement and schedule as to the sources and application of funds and balance sheet for and as of the end of such month, in reasonable detail;
(d) as soon as practicable, but in any event thirty (30) days before prior to the end of each fiscal year, a budget and business plan for the next fiscal year, prepared on a monthly basis, including balance sheets, income statements, sheets and sources and applications of unds statements of cash flow for such months and, promptly after as soon as prepared, any other budgets or revised budgets prepared by the Company Company;
(such budget and business plan that is approved by the Board of Directors is collectively referred e) with respect to herein as the “Budget”). 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 called for in subsections (b) and (c) of this Section 3.01, an instrument executed by the foregoing sections shall be the consolidated and consolidating financial statements Chief Financial Officer or President of the Company and all certifying that such consolidated subsidiaries. Notwithstanding anything else financial statements were prepared in this Section 3.1 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;
(f) such other information relating to the contraryfinancial condition, business, prospects or corporate affairs of the Company may cease providing as the information set forth in this Section 3.1 during the period starting with the date sixty (60) days before the Company’s good-faith estimate Holder or any assignee of the date of filing of a registration statement if it reasonably concludes it must do so Holder may from time to comply with the SEC rules applicable to such registration statement and related offering; provided time request, provided, however, that the Company’s covenants Company shall not be obligated under this subsection (f) or any other subsection of Section 3.1 shall 4.01 to provide information which it deems in good faith to be reinstated at such time as the Company is no longer actively employing its commercially reasonable efforts to cause such registration statement to become effectivea trade secret or similar confidential information.
Appears in 1 contract
Delivery of Financial Statements. The Company shall deliver to each Investor who holds, together with its Affiliates, an aggregate of 500,000 shares of Series C Preferred Stock or Series D Preferred Stock (or Conversion Shares) (a “Major Investor, provided that the Board of Directors has not reasonably determined that ”) and upon such Major Investor is a Competitor of the CompanyInvestors timely request for each such report:
(a) as soon as practicable, but in any event within one hundred eighty (180) days after the end of each fiscal year of the Company (i) Company, statements of operations and cash flow for such fiscal year, a balance sheet of the Company as of the end of such year, (ii) statements and a schedule as to the sources and applications of income and of cash flows 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 generally accepted accounting principles (“GAAP”), and audited and certified by independent public accountants of nationally or regionally recognized standing selected by the Company;
(b) as soon as practicable, but in any event within ninety (90) days after prior to the end of each quarter of each fiscal year of the Company, unaudited statements an annual budget and plan of income and cash flows operations for such the upcoming fiscal quarteryear approved by the Board of Directors;
(c) within twenty (20) days of the end of each month, and until a public offering of Common Stock of the Company, an unaudited balance sheet, and a comparison between (x) the actual amounts as of and for such fiscal quarter and (y) the comparable amounts for the prior fiscal quarter and as included in the Budget (as defined in Section 3.1(c)) for such fiscal quarter, and a statement of stockholders’ equity operations and balance sheet for and as of the end of such fiscal quartermonth, all in reasonable detail and prepared in accordance with GAAP, subject to year end audit adjustments and the absence of footnotes;
(d) with respect to the financial statements called for in subsection (c) of this Section 7.1, an instrument executed by the Chief Financial Officer or President of the Company and certifying that such financials were prepared in accordance with GAAP (except that such consistently applied with prior practice for earlier periods 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; adjustments and (ii) not contain all notes thereto that may be required in accordance with GAAP)the absence of footnotes; and
(ce) as soon as practicableall accounting letters or reports from independent auditors and such other information relating to the financial condition, but in any event thirty (30) days before the end business, prospects or corporate affairs of each fiscal year, a budget and business plan for the next fiscal year, prepared on a monthly 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 (such budget and business plan as the Major Investor or any assignee of the Major Investor may from time to time request, provided, however, that is approved by the Company shall not be obligated to provide information which the Board of Directors is collectively referred deems in good faith to herein as the “Budget”). 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 Section 3.1 to the contrary, the Company may cease providing the information set forth in this 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 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 effectiveproprietary.
Appears in 1 contract
Delivery of Financial Statements. The Company shall deliver to each Major InvestorPurchaser for so long as such Purchaser (together with its shareholders, provided that the Board partners and members and any other Persons whose securities are aggregated with those of Directors has not reasonably determined that such Major Investor is a Competitor Purchaser for purposes of the Company:Shareholders Agreement) holds Preferred Shares, Conversion Shares or Warrant Shares that in the aggregate equal or represent the right to acquire at least 250,000 shares of Common Stock and to any transferee acquiring such amount of Preferred Shares, Conversion Shares or Warrant Shares, directly or indirectly, from a Purchaser (such 250,000 shares shall be appropriately adjusted to reflect any subsequent stock dividends, combinations, splits, recapitalizations and the like):
(a) as soon as practicable, but in any event within one hundred eighty (180) 120 days after the end of each fiscal year of the Company, an income statement of the Company (i) for such fiscal year, a cash flow statement of the Company for such fiscal year, a balance sheet of the Company as of the end of such fiscal year and a statement of changes in shareholder's equity of the Company as of the end of such year, (ii) statements of income and of cash flows for with each such yearfinancial statement to be in reasonable detail, prepared in accordance GAAP, and (iii) a statement of stockholders’ equity as of the end of such year, all such financial statements audited and certified by a firm of independent public accountants of nationally or regionally recognized standing selected by the Company;
(b) as soon as practicable, but in any event within ninety (90) sixty days after the end of each quarter of the first three quarters of each fiscal year of the Company, unaudited statements of income and cash flows for such fiscal quarter, and an unaudited balance sheet, and a comparison between (x) of the actual amounts as of and Company for such fiscal quarter and (y) the comparable amounts for the prior fiscal quarter and as included in the Budget (as defined in Section 3.1(c)) for such fiscal quarter, an unaudited balance sheet and a statement of stockholders’ changes in shareholder's equity of the Company 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) within thirty days of the end of each calendar month, unaudited statements of income and cash flows and balance sheet of the Company for and as of the end of such month, in reasonable detail;
(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 of the Company for the next fiscal year, prepared on a monthly basis, including balance sheets, income statements, sheets and statements of cash flow flows for such months and, promptly after as soon as prepared, any other budgets or revised budgets prepared by the Company Company;
(such budget and business plan that is approved by the Board of Directors is collectively referred e) with respect to herein as the “Budget”). 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 called for in subsections (b) and (c) of this Section 7.4, an instrument executed by the foregoing sections shall be Chief Financial Officer or President of the consolidated and consolidating Company certifying that such financial statements 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 all its results of operation, cash flows and changes in shareholders' equity for the period specified, subject to year-end audit adjustments; and
(f) such consolidated subsidiaries. Notwithstanding anything else in this Section 3.1 other information relating to the contraryfinancial condition, business, prospects or corporate affairs of the Company as such Purchaser or any transferee of such Purchaser may cease providing the information set forth in this 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 from time to comply with the SEC rules applicable to such registration statement and related offering; provided that the Company’s covenants under this 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 effectiverequest.
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:
(a) as soon as practicable, but in any event within one hundred eighty fifty (180150) 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, year and (iii) a statement of stockholdersMembers’ equity as of the end of such year, all such financial statements shall be audited and certified by independent public accountants of nationally or regionally recognized standing selected by the Company;
(b) as soon as practicable, but in any event within ninety forty-five (9045) days after the end of each quarter 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 comparison between (x) the actual amounts as of and for such fiscal quarter and (y) the comparable amounts for the prior fiscal quarter and as included in the Budget (as defined in Section 3.1(c)) for such fiscal quarter, sheet and a statement of stockholdersMembers’ 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) upon written request of a Major Investor, an unaudited condensed income statement for the previous month, and an unaudited balance sheet as of the end of such previous month, subject to adjustment for GAAP;
(d) as soon as practicable, but in any event thirty within (30) days before after the end beginning of each fiscal year, a budget and business plan for the next fiscal year, approved by the Board and prepared on a monthly 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;
(e) copies of all materials that the Company provides to its directors or any of its bank lenders at substantially the same time that such materials are provided to the directors or bank lenders; provided, however, that such Major Investor representative shall hold in confidence and trust all information so provided in accordance with the confidentiality provisions set forth in Section 3.6; and provided further, that the Company shall not be obligated under this Section 3.1(e) 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 (such budget and business plan it being understood that is approved by an agreement containing confidentiality provisions substantially similar to those set forth in Section 3.6 shall be deemed acceptable to the Board Company)) or (ii) the disclosure of Directors is collectively referred to herein as which would adversely affect the “Budget”). If, for any period, attorney-client privilege between the Company has any subsidiary whose accounts are consolidated and its counsel;
(f) if requested by a Major Investor, all correspondence with those of the CompanyU.S. Food and Drug Administration, then in respect of final clinical study reports, serious adverse event reports and quarterly patient screening, enrollment and dropout updates; and
(g) such period other information relating to the financial statements delivered pursuant to the foregoing sections shall be the consolidated and consolidating financial statements condition, business, prospects, or affairs of the Company and all such consolidated subsidiaries. Notwithstanding anything else in this Section 3.1 as any Major Investor may from time to the contrarytime reasonably request, the Company including, without limitation, information relating to issues that may cease providing the information set forth in this 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 impact auditor independence rules applicable to such registration statement Major Investor and related offeringboard materials; provided that the Company’s covenants under this 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.provided, however, that
Appears in 1 contract
Sources: Investors’ Rights Agreement (Zentalis Pharmaceuticals, Inc.)
Delivery of Financial Statements. The Company shall deliver to -------------------------------- each Major InvestorPurchaser for so long as such Purchaser (together with its shareholders, provided that the Board partners and members and any other Persons whose securities are aggregated with those of Directors has not reasonably determined that such Major Investor is a Competitor Purchaser for purposes of the Company:Shareholders Agreement) holds Preferred Shares, Conversion Shares or Warrant Shares that in the aggregate equal or represent the right to acquire at least 250,000 shares of Common Stock and to any transferee acquiring such amount of Preferred Shares, Conversion Shares or Warrant Shares, directly or indirectly, from a Purchaser (such 250,000 shares shall be appropriately adjusted to reflect any subsequent stock dividends, combinations, splits, recapitalizations and the like):
(a) as soon as practicable, but in any event within one hundred eighty (180) 120 days after the end of each fiscal year of the Company, an income statement of the Company (i) for such fiscal year, a cash flow statement of the Company for such fiscal year, a balance sheet of the Company as of the end of such fiscal year and a statement of changes in shareholder's equity of the Company as of the end of such year, (ii) statements of income and of cash flows for with each such yearfinancial statement to be in reasonable detail, prepared in accordance GAAP, and (iii) a statement of stockholders’ equity as of the end of such year, all such financial statements audited and certified by a firm of independent public accountants of nationally or regionally recognized standing selected by the Company;
(b) as soon as practicable, but in any event within ninety (90) sixty days after the end of each quarter of the first three quarters of each fiscal year of the Company, unaudited statements of income and cash flows for such fiscal quarter, and an unaudited balance sheet, and a comparison between (x) of the actual amounts as of and Company for such fiscal quarter and (y) the comparable amounts for the prior fiscal quarter and as included in the Budget (as defined in Section 3.1(c)) for such fiscal quarter, an unaudited balance sheet and a statement of stockholders’ changes in shareholder's equity of the Company 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) within thirty days of the end of each calendar month, unaudited statements of income and cash flows and balance sheet of the Company for and as of the end of such month, in reasonable detail;
(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 of the Company for the next fiscal year, prepared on a monthly basis, including balance sheets, income statements, sheets and statements of cash flow flows for such months and, promptly after as soon as prepared, any other budgets or revised budgets prepared by the Company Company;
(such budget and business plan that is approved by the Board of Directors is collectively referred e) with respect to herein as the “Budget”). 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 called for in subsections (b) and (c) of this Section 7.4, an instrument executed by the foregoing sections shall be Chief Financial Officer or President of the consolidated and consolidating Company certifying that such financial statements 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 all its results of operation, cash flows and changes in shareholders' equity for the period specified, subject to year-end audit adjustments; and
(f) such consolidated subsidiaries. Notwithstanding anything else in this Section 3.1 other information relating to the contraryfinancial condition, business, prospects or corporate affairs of the Company as such Purchaser or any transferee of such Purchaser may cease providing the information set forth in this 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 from time to comply with the SEC rules applicable to such registration statement and related offering; provided that the Company’s covenants under this 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 effectiverequest.
Appears in 1 contract
Sources: Securities Purchase Agreement (Satcon Technology 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 a Competitor of the Company:
(a) by March 31, 2016, (i) an unaudited balance sheet for fiscal year 2015, (ii) unaudited statements of income and of cash flows for fiscal year 2015 and (iii) an unaudited statement of stockholders’ equity for fiscal year 2015;
(b) beginning with fiscal year 2016, as soon as practicable, but in any event within one hundred eighty (180) 150 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, 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;
(bc) as soon as practicable, but in any event within ninety (90) 45 days after the end of each quarter of the first three quarters of each fiscal year of the Company, unaudited statements of income and cash flows for such fiscal quarter, and an unaudited balance sheet, and a comparison between (x) the actual amounts as of and for such fiscal quarter and (y) the comparable amounts for the prior fiscal quarter and as included in the Budget (as defined in Section 3.1(c)) for such fiscal quarter, and a statement of stockholders’ equity 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; and (ii) not contain all notes thereto that may be required in accordance with GAAP); and;
(cd) as soon as practicablesuch other information relating to the financial condition, but in any event thirty (30) days before the end business, prospects, or corporate affairs of each fiscal year, a budget and business plan for the next fiscal year, prepared on a monthly 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 as any Major Investor may from time to time reasonably request; provided, however, that the Company shall not be obligated under this Section 3.1 to provide information (such budget 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 business plan that is approved by the Board of Directors is collectively referred to herein as the “Budget”)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 Section 3.1 to the contrary, the Company may cease providing the information set forth in this 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 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 shall, upon request, deliver to each Investor (or transferee of an Investor) that holds, in the aggregate, at least 3,400,000 shares of Preferred Stock (each as appropriately adjusted for any stock split, dividend, combination or other recapitalization) (each a “Major Investor, provided that the Board of Directors has not reasonably determined that such Major Investor is a Competitor of the Company:”):
(a) as soon as practicable, but in any event within one hundred eighty sixty (18060) days after the end of each fiscal year of the Company (i) a Company, an unaudited income statement for such fiscal year, an unaudited balance sheet as of the end of such year, (ii) statements of income Company and of cash flows for such year, and (iii) a statement of stockholders’ equity as of the end of such year, all and an unaudited 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”), such financial statements shall be audited and certified by independent public accountants of nationally or regionally recognized standing selected by the CompanyCompany and such audited statements shall be provided within one hundred and eighty (180) days after the end of the fiscal year end;
(b) as soon as practicable, but in any event within ninety forty-five (9045) days after the end of each quarter of each fiscal year of the Company, an unaudited statements income statement, statement of income and cash flows for such fiscal quarter, quarter and an unaudited balance sheet, and a comparison between (x) the actual amounts as of and for such fiscal quarter and (y) the comparable amounts for the prior fiscal quarter and as included in the Budget (as defined in Section 3.1(c)) for such fiscal quarter, and a statement of stockholders’ equity 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); and;
(c) 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, prepared on a monthly basis, including balance sheets, income statements, and statements of cash flow for such months and, promptly after as soon as prepared, any other budgets or revised budgets prepared by the Company Company;
(such budget and business plan that is approved by d) as soon as practicable, but in any event within forty-five (45) days after the Board end of Directors is collectively referred to herein as the “Budget”). If, for any period, the Company has any subsidiary whose accounts are consolidated with those each quarter of each fiscal year of the Company, then 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 respect of sufficient detail as to permit the Major Investors to calculate their respective percentage equity ownership in the Company; and
(e) such period other information relating to the financial statements delivered pursuant to the foregoing sections shall be the consolidated and consolidating financial statements condition, business or corporate affairs of the Company as the Major Investor may from time to time request, provided, however, that the Company shall not be obligated under this subsection (e) or any other subsection of Section 2.1 to provide information that (i) it deems in good faith to be a trade secret or similar confidential information or (ii) the disclosure of which, upon the advice of counsel, would adversely affect the attorney-client privilege between the Company and all such consolidated subsidiaries. its counsel; and
(f) Notwithstanding anything else in this Section 3.1 2.1 to the contrary, the Company may cease providing the information set forth in this Section 3.1 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 with the SEC under the Act 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 Section 3.1 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. For the avoidance of doubt, (i) the shares of Preferred Stock held by ▇▇▇▇▇▇▇ and ▇▇▇▇▇ shall be aggregated with the Preferred Stock held by DST and (ii) the shares of Preferred Stock held by SCGE Fund, L.P. (“SCGE”), and Sequoia Capital Global Growth Fund III – U.S./India Annex Fund, L.P. (“SCGGF”) shall be aggregated, in each case for purposes of determining Major Investor Status.
Appears in 1 contract
Sources: Investors’ Rights Agreement (Chime Financial, 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:
(a) as soon as practicable, but in any event within one hundred eighty ninety (18090) days after the end of each fiscal year of the Company (i) Company, 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 (iii) a statement of stockholders’ shareholders' equity as of the end of such year, all and a schedule as to the sources and applications of funds 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 or regionally recognized standing selected by the Company;
(b) as soon as practicable, but in any event within ninety forty-five (9045) days after the end of each quarter 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 an unaudited balance sheetprofit or loss statement, schedule as to the sources and a comparison between (x) the actual amounts as application of and funds for such fiscal quarter and (y) the comparable amounts for the prior fiscal quarter and as included in the Budget (as defined in Section 3.1(c)) for such fiscal quarter, and a statement of stockholders’ equity an unaudited balance sheet as of the end of such fiscal quarterquarter and 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 number of common shares issuable upon conversion or exercise of any outstanding securities convertible or exercisable for common shares and the exchange ratio or exercise price applicable thereto, all prepared in accordance with GAAP (except that such financial statements may (i) be subject sufficient detail as to normal year-end audit adjustments; and (ii) not contain all notes thereto that may be required permit the Investor to calculate its percentage equity ownership in accordance with GAAP); andthe Company.
(c) within thirty (30) days of the end of each month, an unaudited income statement and schedule as to the sources and application of funds and balance sheet for and as of the end of such month, in reasonable detail;
(d) as soon as practicable, but in any event thirty (30) days before prior to the end of each fiscal year, a budget and business plan for the next fiscal year, prepared on a monthly basis, including balance sheets, income statements, sheets and sources and applications of funds statements of cash flow for such months and, promptly after as soon as prepared, any other budgets or revised budgets prepared by the Company Company;
(such budget and business plan that is approved by the Board of Directors is collectively referred e) with respect to herein as the “Budget”). 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 called for in subsections (b) and (c) of this Section 2.1, an instrument executed by the foregoing sections shall be the consolidated and consolidating financial statements Chief Financial Officer or President of the Company and all certifying that such consolidated subsidiaries. Notwithstanding anything else financials were prepared in this Section 3.1 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; and
(f) such other information relating to the contraryfinancial condition, business, prospects or corporate affairs of the Company as the Investor or any assignee of the Investor may from time to time request, provided, however, that the Company shall not be obligated under this subsection (f) or any other subsection of Section 2.1 to provide information which it deems in good faith to be a trade secret or similar confidential information.
(g) Notwithstanding the foregoing, the Company may cease providing covenants, on or before May 30, 1998, to deliver to each Investor consolidated balance sheets, consolidated statements of and consolidated statements of cash flows of the information set forth Company and its subsidiaries for the fiscal year ended September 30, 1997, all prepared in this Section 3.1 during the period starting accordance with the date sixty (60) days before generally accepted accounting principles, audited by independent public accountants of national standing selected by the Company’s good-faith estimate of . Following 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 Section 3.1 shall be reinstated at such time as Closing, the Company is no longer actively employing covenants to use its commercially reasonable best efforts to cause such registration statement to become effectivemaintain a standard system of accounting established and administered in accordance with generally accepted accounting principles.
Appears in 1 contract
Sources: Investors' Rights Agreement (Computer Literacy 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:
(a) as soon as practicable, but in any event within one hundred eighty (180) 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 (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;
(b) as soon as practicable, but in any event within ninety (90) days after the end of each quarter fiscal year of the Company, an income statement for such fiscal year, a balance sheet of the Company and statement of stockholder's equity as of the end of such year, 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 audited and certified by independent public accountants of nationally recognized standing selected by the Company;
(b) so long as such Investor holds at least 100,000 shares of Preferred Stock (either in the form of Preferred Stock or Common Stock issued upon conversion thereof, and as adjusted for subsequent stock splits, recombinations or reclassifications), 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, an unaudited statements income statement and statement of income and cash flows for such fiscal quarter, quarter and an unaudited balance sheet, and a comparison between (x) the actual amounts as of and for such fiscal quarter and (y) the comparable amounts for the prior fiscal quarter and as included in the Budget (as defined in Section 3.1(c)) for such fiscal quarter, 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 quarter comparing results to normal year-end audit adjustments; and (ii) not contain all notes thereto that may be required in accordance with GAAP); andthe annual plan;
(c) so long as such Investor holds at least 100,000 shares of Preferred Stock (either in the form of Preferred Stock or Common Stock issued upon conversion thereof, and as adjusted for subsequent stock splits, recombinations or reclassifications), 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) so long as such Investor holds at least 100,000 shares of Preferred Stock (either in the form of Preferred Stock or Common Stock issued upon conversion thereof, and as adjusted for subsequent stock splits, recombinations or reclassifications), as soon as practicable, but in any event thirty (30) days before prior to the end of each fiscal year, a budget and business plan for the next fiscal year, prepared on a monthly basis, including balance sheets, income statements, sheets and statements of cash flow flows, for such months months, and, promptly after as soon as prepared, any other budgets or revised budgets prepared by the Company Company; and
(such budget and business plan that is approved by the Board of Directors is collectively referred e) with respect to herein as the “Budget”). 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 called for in subsections (b) and (c) of this Section 2.1, an instrument executed by the foregoing sections shall 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 (with the exception of footnotes that may be required by GAAP) and fairly present the consolidated and consolidating financial statements condition of the Company and all such consolidated subsidiaries. Notwithstanding anything else in this Section 3.1 to the contrary, the Company may cease providing the information set forth in this Section 3.1 during its results of operation for the period starting with the date sixty (60) days before the Company’s goodspecified, subject to year-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 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 effectiveend audit adjustment.
Appears in 1 contract
Delivery of Financial Statements. The Until the earlier of: (i) the consummation of the Company's initial public offering (the “IPO”) (ii) the Company entering into a definitive Investors' Rights Agreement with the Purchasers and/or the investors in a subsequent equity financing transaction, or (iii) such date upon which the Lead Purchaser, together with its Permitted Transferees (as such term is defined in the Amended Articles) shall no longer hold any shares of the Company's issued and outstanding share capital, 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 CompanyLead Purchaser:
(a) as 8.2.1.1. As soon as practicable, but in any event within one hundred eighty [***] (180[***]) days after the end of each fiscal year of the Company (i) Company, a consolidated balance sheet of the Company as of the end of such year, (ii) and statements of income and statements of cash flows flow of the Company for such year, and (iii) a statement of stockholders’ equity as of setting forth in each case in comparative form the end of such figures for the previous fiscal year, all such in reasonable detail, United States dollar-denominated, prepared in accordance with United States generally accepted accounting principles, or IFRS, as elected by Company (“GAAP”), audited by a firm of Independent Certified Public Accountants associated with one of the “Big Four” US accounting firms in the State of Israel who are members of the Israeli Institute of Certified Public Accountants, in customary form (which can be a consolidated report with the financial statements audited and certified by independent public accountants of nationally or regionally recognized standing selected by the CompanyEVGN);
(b) as 8.2.1.2. As soon as practicable, but in any event within ninety [***] (90[***]) days after the end of each quarter of each fiscal year of the Company, an unaudited but reviewed consolidated balance sheet of the Company as at the end of each such period and unaudited consolidated statements of (i) income and (ii) cash flows flow of the Company for such fiscal quarterperiod and, in the case of the first, second and an unaudited balance sheetthird quarterly periods, and a comparison between (x) the actual amounts as of and for such fiscal quarter and (y) the comparable amounts for the prior period from the beginning of the current fiscal quarter and as included in the Budget (as defined in Section 3.1(c)) for such fiscal quarter, and a statement of stockholders’ equity as of year to the end of such quarterly period, setting forth in each case in comparative form the figures for the corresponding period of the previous fiscal quarteryear, all in reasonable detail, United States dollar-denominated and 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 thirty (30) days before the end of each fiscal year, a budget and business plan for the next fiscal year, prepared applied on a monthly basis, including balance sheets, income statements, and statements basis consistent with that of cash flow for such months and, promptly after prepared, any other budgets or revised budgets prepared by the Company preceding periods (such budget and business plan that is approved by the Board of Directors is collectively referred to herein as the “Budget”). If, for any period, the Company has any subsidiary whose accounts are which can be a consolidated report 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 Section 3.1 to the contrary, the Company may cease providing the information set forth in this 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 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.EVGN);
Appears in 1 contract
Sources: Series Seed Preferred Share Purchase Agreement (Evogene Ltd.)
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 (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 a Competitor of the Company:”):
(a) as soon as practicable, but in any event within one hundred eighty ninety (18090) days after the end of each fiscal year of the Company (i) Company, 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 (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 of nationally or regionally recognized standing selected by the Company;
(b) as soon as practicable, but in any event within ninety forty-five (9045) days after the end of each quarter of the first three (3) quarters of each fiscal year of the Company, an unaudited statements income statement, statement of income and cash flows for such fiscal quarter, quarter and an unaudited balance sheet, and a comparison between (x) the actual amounts as of and for such fiscal quarter and (y) the comparable amounts for the prior fiscal quarter and as included in the Budget (as defined in Section 3.1(c)) for such fiscal quarter, and a statement of stockholders’ equity 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); and;
(c) 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, prepared on a monthly 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 (such budget and business plan that is approved by the Board of Directors is collectively referred Directors; and
(d) such other information relating to herein as the “Budget”). 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 condition, business or corporate affairs of the Company as the Major Investor may from time to time request, provided, however, that the Company shall not be obligated under this subsection (d) or any other subsection of Section 2.1 to provide information that (i) it deems in good faith to be a trade secret or similar confidential information or (ii) the disclosure of which would adversely affect the attorney-client privilege between the Company and all such consolidated subsidiaries. its counsel; Notwithstanding anything else in this Section 3.1 2.1 to the contrary, the Company may cease providing the information set forth in this Section 3.1 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 Section 3.1 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 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 upon request by such Major Investor is a Competitor of the CompanyInvestor:
(a) as soon as practicable, but in any event within one hundred eighty twenty (180120) 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 (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;
(b) as soon as practicable, but in any event within ninety forty-five (9045) days after the end of each quarter 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 an unaudited balance sheet, and a comparison between (x) the actual amounts as of and for such fiscal quarter and (y) the comparable amounts for the prior fiscal quarter and as included in the Budget (as defined in Section 3.1(c)) for such fiscal quarter, and a statement of stockholders’ equity 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; and (ii) not contain all notes thereto that may be required in accordance with GAAP); and
(c) as soon as practicablesuch other information relating to the financial condition, but in any event thirty (30) days before the end business, prospects, or corporate affairs of each fiscal year, a budget and business plan for the next fiscal year, prepared on a monthly 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 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 (such budget 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 business plan that is approved by the Board of Directors is collectively referred to herein as the “Budget”)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 Section Subsection 3.1 to the contrary, the Company may cease providing the information set forth in this Section 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 Section 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 (Eidos Therapeutics, Inc.)
Delivery of Financial Statements. The Company shall deliver to each Major Investor and each assignee of an Investor who acquires at least 50% of an Investor, provided that the Board 's shares of Directors has not reasonably determined that such Major Investor is a Competitor of the CompanySeries F Preferred Stock purchased hereunder:
(a) as soon as practicable, but in any event within one hundred eighty (180) 90 days after the end of each fiscal year of the Company (i) Company, a statement of operations for such fiscal year, a balance sheet of the Company as of the end of such year, (ii) statements of income and a statement of cash flows 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 generally accepted accounting principles ("GAAP"), and audited and certified by independent public accountants of nationally or regionally recognized standing selected by the Company;
(b) as soon as practicable, but in any event within ninety (90) 30 days after of the end of each quarter month, an unaudited statement of each fiscal year operations, statement of the Company, unaudited statements of income and cash flows and balance sheet for such fiscal quarter, and an unaudited balance sheet, and a comparison between (x) the actual amounts as of and for such fiscal quarter and (y) the comparable amounts for the prior fiscal quarter and as included in the Budget (as defined in Section 3.1(c)) for such fiscal quarter, and a statement of stockholders’ equity as of the end of such fiscal quartermonth, all prepared in accordance with GAAP (except that reasonable detail; such financial monthly statements may (i) be subject to normal shall also contain the foregoing information on a year-end audit adjustments; to-date basis and (ii) not contain all notes thereto that may be required in accordance with GAAP); andshall also compare actual performance to budget;
(c) as soon as practicable, but in any event thirty (30) within 60 days before prior to the end close of each fiscal year, a comprehensive operating budget and business plan for the next fiscal yearyear forecasting the Company's revenues, expenses and cash position, prepared on a monthly basis, including balance sheets, income statements, sheets and sources and applications of funds statements of cash flow for such months and, promptly after as soon as prepared, any other budgets or revised budgets prepared by the Company Company;
(d) such budget and business plan that is approved by other information relating to the Board financial condition, business, prospects or corporate affairs of Directors is collectively referred to herein as the “Budget”). If, for any period, the Company has any subsidiary whose accounts are consolidated as Investor may from time to time reasonably request, provided, however, that the Company shall not be obligated to provide information which it deems in good faith to be proprietary; and
(e) with those of the Company, then in respect of such period to the financial statements delivered pursuant to called for in subsection (a) of this Section 8.1, an instrument executed by the foregoing sections shall be Treasurer or the consolidated and consolidating financial statements President of the Company and all certifying that such consolidated subsidiaries. Notwithstanding anything else financials were prepared in this Section 3.1 to accordance with internally consistent accounting methods consistently applied with prior practice for earlier periods and fairly present the contrary, financial condition of the Company may cease providing the information set forth in this Section 3.1 during and its results of operation for the period starting with the date sixty (60) days before the Company’s goodspecified, subject to year-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 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 effectiveend audit adjustment.
Appears in 1 contract
Sources: Stock Purchase Agreement (Applied Molecular Evolution 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:
(a) as soon as practicable, but in any event within one hundred eighty (180) days practicable 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 yearCompany, 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;
(b) as soon as practicable, but in any event within ninety (90) days after the end of each quarter fiscal year of the Company, a consolidated balance sheet of the Company and its subsidiaries, if any, as at the end of such fiscal year, and consolidated statements of income and cash flows of the Company and its subsidiaries, if any, for such year, prepared in accordance with U.S. GAAP consistently applied, all such financial statements audited and certified by one of the “Big Four” independent public accountants selected by the Company;
(b) as soon as practicable after the end of the first, second and third quarterly accounting periods in each fiscal year of the Company, and in any event within forty-five (45) days after the end of the first, second, and third quarterly accounting periods in each fiscal year of the Company, an unaudited consolidated balance sheet of the Company and its subsidiaries, if any, as of the end of each such quarterly period, and unaudited consolidated statements of income and cash flows of the Company and its subsidiaries, if any, for such fiscal quarterperiod, and an unaudited balance sheet, and a comparison between (x) the actual amounts as of and for such fiscal quarter and (y) the comparable amounts for the prior fiscal quarter and as included in the Budget (as defined in Section 3.1(c)) for such fiscal quarter, 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 consistently applied, subject to changes resulting from 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 thirty (30) days before the end of each fiscal year, a budget and business and operating plan for the next fiscal yearyear (collectively, the “Budget”), approved by the Board and prepared on a monthly 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; and
(d) such other information relating to the financial condition, business, prospects, or corporate affairs of the Company as any Investor may from time to time reasonably request; provided, however, that the Company shall not be obligated under this Section 3.1(d) to provide information (such budget 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 business plan that is approved by the Board of Directors is collectively referred to herein as the “Budget”)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 Section Subsection 3.1 to the contrary, the Company may cease providing the information set forth in this Section 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 Section 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 (LogicBio 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 competitor of the Company:
(a) as soon as practicable, but in any event within one hundred eighty twenty (180120) 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 (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;
(b) as soon as practicable, but in any event within ninety forty-five (9045) days after the end of each quarter 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 an unaudited balance sheet, and a comparison between (x) the actual amounts as of and for such fiscal quarter and (y) the comparable amounts for the prior fiscal quarter and as included in the Budget (as defined in Section 3.1(c)) for such fiscal quarter, 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) 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
(cd) as soon as practicablesuch other information relating to the financial condition, but in any event thirty (30) days before the end business, prospects, or corporate affairs of each fiscal year, a budget and business plan for the next fiscal year, prepared on a monthly 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 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 (such budget 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 business plan that is approved by the Board of Directors is collectively referred to herein as the “Budget”)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 Section Subsection 3.1 to the contrary, the Company may cease providing the information set forth in this Section 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 Section 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 (First Light Acquisition Group, 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:
(a) as soon as practicable, but in any event within one hundred eighty (180) 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 (iii) an audited statement of stockholders’ equity as of the end of 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 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;.
(b) as soon as practicable, but in any event within ninety thirty (9030) days after the end of each quarter 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 comparison between (x) the actual amounts as of and for such fiscal quarter and (y) the comparable amounts for the prior fiscal quarter and as included in the Budget (as defined in Section 3.1(c)) for such fiscal quarter, 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 fiscal quarter of the Company, a statement showing the number of shares of each class and series of securities and securities convertible into or exercisable for shares of securities outstanding at the end of the period, the Common Shares issuable upon conversion or exercise of any outstanding securities convertible or exercisable for Common Shares and the exchange ratio or exercise price applicable thereto, and the number of shares of issued options and options not yet issued but reserved for issuance, if any, all in sufficient detail as to permit the Major Investors to calculate 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 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 yearyear (collectively, the “Budget”), approved by the Board (including two-thirds of the Preferred Directors) and prepared on a monthly 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 Company;
(such budget and business plan that is approved by the Board of Directors is collectively referred f) with respect to herein as the “Budget”). 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 called for in Section 3.1(a) and Section 3.1(b) an instrument executed by the foregoing sections shall be chief financial officer and chief executive officer of the consolidated and consolidating 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 all its results of operation for the periods specified therein; and
(g) such other information relating to the financial condition, business, prospects, or 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 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. The Board and the Company, upon the recommendation of its outside accountants will determine whether audited financial statements will be at the subsidiary or consolidated subsidiarieslevel. Notwithstanding anything else in this Section 3.1 to the contrary, (i) the Company may cease providing the information set forth in this 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 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, and (ii) any Investor that was deemed a Major Investor as of the date of this Agreement and then subsequently no longer qualifies as a Major Investor may still receive from the Company upon request the information set forth in Sections 3.1(a) - (e).
Appears in 1 contract
Sources: Investors’ Rights Agreement (Forma Therapeutics 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 a Competitor of the Company:
(a) as soon as practicable, but in any event within one withinone hundred eighty and twenty (180120) 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 (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;
(b) as soon as practicable, but in any event within ninety forty-five (9045) days after the end of each quarter 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 an unaudited balance sheet, and a comparison between (x) the actual amounts as of and for such fiscal quarter and (y) the comparable amounts for the prior fiscal quarter and as included in the Budget (as defined in Section 3.1(c)) for such fiscal quarter, and a statement of stockholders’ equity 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); and;
(c) 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 yearyear (collectively, the “Budget”), approved by the Board of Directors and prepared on a monthly 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; and
(d) 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 (such budget 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 business plan that is approved by the Board of Directors is collectively referred to herein as the “Budget”)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 Section Subsection 3.1 to the contrary, the Company may cease providing the information set forth in this Section 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 Section 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 CompanySigma Tau for so long as Sigma Tau holds Shares:
(a) as soon as practicable, but in any event within one hundred eighty ninety (18090) days after the end of each fiscal year of the Company (i) Company, 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 (iii) a statement of stockholders’ shareholder's equity as of the end of such year, all and a schedule as to the sources and applications of funds for such year, such year-end financial statements reports to be in reasonable detail, prepared in accordance with Italian generally accepted accounting principles ("GAAP"), and audited and certified by independent public accountants of nationally or regionally recognized standing selected by the Company;
(b) as soon as practicable, but in any event within ninety forty-five (9045) days after the end of each quarter 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 an unaudited balance sheetprofit or loss statement, schedule as to the sources and a comparison between (x) the actual amounts as application of and funds for such fiscal quarter and (y) the comparable amounts for the prior fiscal quarter and as included in the Budget (as defined in Section 3.1(c)) for such fiscal quarter, and a statement of stockholders’ equity 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; and (ii) not contain all notes thereto that may be required in accordance with GAAP); and.
(c) within thirty (30) days of the end of each month, an unaudited income statement and schedule as to the sources and application of funds and balance sheet for and as of the end of such month, in reasonable detail;
(d) as soon as practicable, but in any event thirty (30) days before prior to the end of each fiscal year, a budget and business plan for the next fiscal year, prepared on a monthly basis, including balance sheets, income statements, sheets and sources and applications of funds statements of cash flow for such months and, promptly after as soon as prepared, any other budgets or revised budgets prepared by the Company Company;
(such budget and business plan that is approved by the Board of Directors is collectively referred e) with respect to herein as the “Budget”). 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 called for in subsections (b) and (c) of this Section 2.1, an instrument executed by the foregoing sections shall be the consolidated and consolidating financial statements Chief Financial Officer or President of the Company and all certifying that such consolidated subsidiaries. Notwithstanding anything else financials were prepared in this Section 3.1 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;
(f) such other information relating to the contraryfinancial condition, business, prospects or corporate affairs of the Company as Sigma Tau or any assignee of Sigma Tau may cease providing the information set forth in this 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 from time to comply with the SEC rules applicable to such registration statement and related offering; provided time request, provided, however, that the Company’s covenants Company shall not be obligated under this subsection (f) or any other subsection of Section 3.1 shall 2.1 to provide information which it deems in good faith to be reinstated at such time as the Company is no longer actively employing its commercially reasonable efforts to cause such registration statement to become effectivea trade secret or similar confidential information.
Appears in 1 contract
Delivery of Financial Statements. The Company shall deliver to each Major Investor, Investor (as hereinafter defined) (other than a Major Investor reasonably deemed by the Board to be a Competitor (as defined in that certain Right of First Refusal and Co-Sale Agreement dated as of the date hereof between the Company and the security holders of the Company party thereto) of the Company (provided that the Board of Directors has a venture capital fund shall not reasonably determined that such Major Investor is be deemed a Competitor of the Company:Competitor)):
(a) as soon as practicable, but in any event within one hundred eighty (180) 120 days after the end of each fiscal year of the Company (i) Company, 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 (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, unless otherwise approved by the Board, including a majority of the Preferred Directors (as defined in the Restated Certificate) elected by holders of Preferred Stock pursuant to Article IV.B.5(b)(i) of the Restated Certificate, audited and certified by independent public accountants of nationally or regionally recognized standing selected by the Company;; and
(b) as soon as practicable, but in any event within ninety (90) 30 days after the end of each quarter of the four quarters of each fiscal year of the Company, an unaudited profit or loss statement, statements of income and of cash flows for such fiscal quarter, quarter and an unaudited balance sheet, and a comparison between (x) the actual amounts as of and for such fiscal quarter and (y) the comparable amounts for the prior fiscal quarter and as included in the Budget (as defined in Section 3.1(c)) for such fiscal quarter, 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 thirty within 30 days after the end of each of the four 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 the Major Investors to calculate 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;
(30d) as soon as practicable, but in any event, 30 days before the end of each fiscal year, the Company shall deliver, a budget and business plan for the next fiscal year, approved by the Board and prepared on a monthly basis, including balance sheets, income statements, statements and statements of cash flow for such months and, promptly after prepared, any other budgets or revised budgets prepared by the Company Company; and
(such budget and business plan that is approved e) with respect to any unaudited financial statements called for in this Section 2.1, an instrument executed by the Board of Directors is collectively referred to herein as the “Budget”). 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 Chief Financial Officer or President of the Company and all certifying that such consolidated subsidiariesfinancials 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. Notwithstanding anything else in this Section 3.1 2.1 to the contrary, the Company may cease providing the information set forth in this Section 3.1 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 rules of the SEC rules U.S. Securities and Exchange Commission applicable to such registration statement and related offering; provided that the Company’s covenants under this Section 3.1 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 1 contract
Sources: Investors’ Rights Agreement (Upstart Holdings, Inc.)
Delivery of Financial Statements. (a) The Company shall deliver to each Major Investor, provided that the Board Investor then holding shares of Directors Preferred Stock (or Common Stock into which Preferred Stock has not reasonably determined that such Major Investor is a Competitor of the Company:been converted):
(a) as soon as practicable, but in any event within one hundred eighty (180) 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 (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;
(b) as soon as practicable, but in any event within ninety (90) days after the end of each quarter of each fiscal year of the Company, unaudited statements of an income and cash flows statement for such fiscal quarteryear, and an unaudited a balance sheet, and a comparison between (x) sheet of the actual amounts as of and for such fiscal quarter and (y) the comparable amounts for the prior fiscal quarter and as included in the Budget (as defined in Section 3.1(c)) for such fiscal quarter, and a statement of stockholders’ equity Company as of the end of such fiscal quarteryear, all 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 generally accepted accounting principles (except that such financial statements may (i) be subject to normal year-end audit adjustments; "gaap"), and audited and certified by independent public accountants of nationally recognized standing selected by the Company;
(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 the first three (3) quarters of each fiscal year of the Company, an unaudited balance sheet as of the end of such fiscal quarter, in reasonable detail and prepared in accordance with gaap; and
(iii) such other information relating to the financial condition, business, prospects or corporate affairs of the Company as the Investor or any assignee of the Investor may from time to time request in writing.
(b) The Company shall deliver to each Investor then holding 38,250 or more shares of the outstanding Preferred Stock, or Common Stock into which such Preferred Stock has been converted (as adjusted to reflect subsequent changes in the capitalization of the Company and aggregating the holdings of affiliated Investors solely for the purpose hereof) (a "Qualified Investor"):
(i) within forty-five (45) days of the end of each month, an unaudited income statement and balance sheet for and as of the end of such month, in reasonable detail and prepared in accordance with gaap;
(ii) within thirty (30) days before of the end of each fiscal year, a budget and business plan for the next fiscal year, prepared on a monthly basis, including balance sheets, income statements, sheets and sources and applications of funds statements of cash flow for such months and, promptly after as soon as prepared, any other budgets or revised budgets prepared by the Company (such budget and business plan that is approved by to the extent prepared for presentation to the Board of Directors is collectively referred of the Company;
(c) With respect to herein as the “Budget”). If, financial statements called for any periodin subsections (a)(ii) and (b)(i) of this Section 9.1, the Company has any subsidiary whose accounts are consolidated with those of shall deliver to each Investor an instrument executed by 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 Chief Financial Officer of the Company and certifying that such financials were prepared in accordance with gaap consistently applied with prior practice for earlier periods and fairly present the financial condition of the Company and its result of operation for the period specified, subject to normal year-end audit adjustment;
(d) Any information provided pursuant to Sections 9.1(a)(iii) and 9.1(b)(ii) shall be used by the Investor or any assignee of the Investor solely in furtherance of its interests as an Investor in the Company, and the Investor and any assignee of the Investor shall use all reasonable effort to maintain the confidentiality of all non- public information of the Company obtained under said sections, provided the Company makes an appropriate designation of any such consolidated subsidiariesconfidential information, and provided further that the foregoing shall not prohibit any Investor from communicating information reasonably necessary or appropriate in fulfilling any fiduciary duty to its stockholders or partners, any committees thereof, or the like. Notwithstanding anything else The Company shall not be obligated to disclose any confidential and proprietary non-financial information, the disclosure of which it believes in this Section 3.1 good faith would be detrimental to the contrary, the Company may cease providing the information set forth in this 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 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 effectivestockholders.
Appears in 1 contract
Sources: Series B Preferred Stock Purchase Agreement (Netsolve 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 Companydeliver:
(a) To each Investor that is not a Major Investor:
(i) as soon as practicable, but in any event within 120 days after the end of each fiscal year of the Company (A) a consolidated balance sheet as of the end of such year, (B) consolidated statements of income and of cash flows for such year, and (C) a statement of stockholders’ equity as of the end of such year, in each case unaudited or, if available, audited; and
(ii) as soon as practicable, but in any event within 45 days after the end of each of the first three quarters of each fiscal year of the Company, unaudited statements of income and 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 (A) be subject to normal year-end audit adjustments; and (B) not contain all notes thereto that may be required in accordance with GAAP).
(b) To each Major Investor:
(i) as soon as practicable, but in any event within one hundred eighty (180) 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 (iii) a statement of stockholders’ equity as of the end of such year, all such financial statements to be (A) prepared in accordance with GAAP and (B) audited and certified by independent public accountants of nationally or regionally recognized standing selected by the CompanyCompany and approved by the Board of Directors (including a majority of the Preferred Directors);
(bii) as soon as practicable, but in any event within ninety (90) 45 days after the end of each quarter of each fiscal year of the Company, unaudited statements of income and cash flows for such fiscal quarter, and an unaudited balance sheet, and a comparison between (x) the actual amounts as of and for such fiscal quarter and (y) the comparable amounts for the prior fiscal quarter and as included in the Budget (as defined in Section 3.1(c)) for such fiscal quarter, 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); and;
(ciii) as soon as practicable, but in any event thirty within forty-five (3045) days after the end of each 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 the Major Investors to calculate 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;
(iv) 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 yearyear (collectively, the “Budget”), prepared on a monthly 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; and
(v) as soon as practicable, but in any event within forty-five (45) days after the end of each quarter of each fiscal year of the Company, a statement comparing actual performance for such fiscal quarter to the planned performance set forth in the Budget; and
(vi) 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 (such budget A) 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 (B) the disclosure of which would adversely affect the attorney-client privilege between the Company and business plan that is approved by the Board of Directors is collectively referred to herein as the “Budget”)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 period, the financial statements delivered pursuant to the foregoing sections (to the extent available) shall be the consolidated and consolidating financial statements of the Company and all such consolidated subsidiaries. Notwithstanding anything else in this Section Subsection 3.1 to the contrary, the Company may cease providing the information set forth in this Section 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 Section 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 effectiveeffective and that, upon such reinstatement of the Company’s covenants under this Subsection 3.1, the Company shall promptly deliver to each Major Investor all information required by this Subsection 3.1 for the period during which information was not delivered.
Appears in 1 contract
Sources: Investors’ Rights Agreement (Vera Therapeutics, 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 a Competitor of the Company:
(a) as soon as practicable, but in any event within one hundred eighty ninety (18090) days after the end of each fiscal year of the Company (i) Company, 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 (iii) a statement of stockholders’ shareholder's 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 or regionally recognized standing selected by the Company;
(b) as soon as practicable, but in any event within ninety forty-five (9045) days after the end of each quarter of the first three (3) quarters of each fiscal year of the Company, an unaudited statements income statement, statement of income and cash flows for such fiscal quarter, quarter and an unaudited balance sheet, and a comparison between (x) the actual amounts as of and for such fiscal quarter and (y) the comparable amounts for the prior fiscal quarter and as included in the Budget (as defined in Section 3.1(c)) for such fiscal quarter, and a statement of stockholders’ equity 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; 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 thirty within forty-five (3045) days before after the end of each fiscal yearcalendar month, a budget and business plan for the next fiscal yearan unaudited income statement, prepared on a monthly basis, including balance sheets, income statements, and statements statement of cash flow flows for such months and, promptly after prepared, any other budgets or revised budgets prepared by the Company (such budget calendar month and business plan that is approved by the Board of Directors is collectively referred to herein an unaudited balance sheet as the “Budget”). If, for any period, the Company has any subsidiary whose accounts are consolidated with those of the Company, then in respect end of such period calendar month.
(d) with respect to the financial statements delivered pursuant to called for IN SUBSECTIONS (b) AND (c) of this SECTION 2.1, an instrument executed by the foregoing sections shall 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 (with the exception of footnotes that may be required by GAAP) and fairly present the consolidated and consolidating financial statements condition of the Company and all its results of operation for the period specified, subject to year-end audit adjustment; and
(e) such consolidated subsidiaries. Notwithstanding anything else in this Section 3.1 other information relating to the contraryfinancial condition, business, prospects or corporate affairs of the Company may cease providing as the information set forth in this Section 3.1 during the period starting with the date sixty (60) days before the Company’s good-faith estimate Investor or any assignee of the date of filing of a registration statement if it reasonably concludes it must do so Investor may from time to comply with the SEC rules applicable to such registration statement and related offering; provided time request, PROVIDED, however, that the Company’s covenants Company shall not be obligated under this Section 3.1 shall SUBSECTION (e) OR ANY other subsection of SECTION 2.1 to provide information that it deems in good faith to be reinstated at such time as the Company is no longer actively employing its commercially reasonable efforts to cause such registration statement to become effectivea trade secret or similar confidential information.
Appears in 1 contract
Sources: Reorganization Agreement (Hydrogen Burner Technology Inc)
Delivery of Financial Statements. The Company shall deliver to each Major InvestorInvestor which holds, provided that the Board together with its affiliates (including venture capital fund affiliates), assignees and/or transferees an aggregate of Directors has not reasonably determined that such Major Investor is a Competitor at least 250,000 shares of the Company:Preferred Stock or an equivalent amount of Registrable Securities issued on conversion thereof (or any combination thereof) or at least 215,000 shares of Series E Preferred Stock or Series E-1 Preferred Stock or an equivalent amount of Registrable Securities issued on conversion thereof (or any combination thereof):
(a) as soon as practicable, but in any event within one hundred eighty (180) 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 (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;
(b) as soon as practicable, but in any event within ninety (90) days after the end of each quarter of each fiscal year of the CompanyCompany commencing with the fiscal year ending December 31, unaudited statements of income and cash flows for such fiscal quarter1999, and an unaudited a balance sheet, and a comparison between (x) the actual amounts as statements of operations and cash flow for such fiscal year. Such year-end financial reports shall 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;
(b) within thirty (30) days of the end of each quarter and (y) other than the comparable amounts for the prior fiscal quarter and as included in the Budget (as defined in Section 3.1(c)) for such fiscal quarter, and a the end of which coincides with the end of the fiscal year), an unaudited statement of stockholders’ equity operations and cash flows and consolidated balance sheet for and as of the end of such fiscal quarter, all in reasonable detail (including comparisons to the operating budget) and prepared in accordance with GAAP (except that such financial statements may (i) be GAAP, subject to normal year-year end audit adjustments; adjustments and (ii) not contain all notes thereto that may be required in accordance with GAAP); andthe absence of footnotes;
(c) as soon as practicable, but in any event within thirty (30) days before prior to the end of each fiscal year, an operating budget approved by the Board of Directors and forecasting the Company's revenues, expenses and cash position on a budget and business plan month-to-month basis for the next fiscal year, prepared on a monthly basis, including balance sheets, income statements, year and statements of cash flow for such months and, promptly after prepared, any other budgets or revised budgets prepared by the Company;
(d) such other information relating to the financial condition, business, prospects or corporate affairs as such person may from time to time request, provided, however, that the Company shall not be obligated to provide information which it deems in good faith to be proprietary; and
(e) to holders of 215,000 shares of Series E Preferred Stock or Series E-1 Preferred Stock or an equivalent amount of Registrable Securities issued on conversion thereof, within 30 days after the end of each month, an unaudited balance sheet of the Company as at the end of such budget month and business plan that is approved unaudited statements of operations and of cash flows of the Company for such month and for the current fiscal year to the end of such month, accompanied by a detailed executive summary of the activities of the Company during such month, signed by the Board of Directors is collectively referred to herein as the “Budget”)Company's chief financial officer. IfThe foregoing financial statements shall be prepared on a consolidated basis, for any period, if the Company then has any subsidiary whose accounts are consolidated with those of the Company, then in respect of such period the subsidiaries. The financial statements delivered pursuant to the foregoing sections Section 3.1(b) shall be accompanied by a certificate of the consolidated and consolidating treasurer or chief financial statements officer of the Company stating that such statements have been prepared in accordance with GAAP, subject to year-end audit adjustments and all such consolidated subsidiaries. Notwithstanding anything else in this Section 3.1 to the contraryabsence of footnotes, and fairly present the financial condition and results of operations of the Company may cease providing the information set forth in this Section 3.1 during the period starting with at the date sixty (60) days before thereof and for 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 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 effectiveperiods covered thereby.
Appears in 1 contract
Delivery of Financial Statements. The Company shall deliver to each Investor who holds, together with its Affiliates, an aggregate of 500,000 shares of Series C Preferred Stock or Series D Preferred Stock (or Conversion Shares) (a "Major Investor, provided that the Board of Directors has not reasonably determined that ") and upon such Major Investor is a Competitor of the CompanyInvestors timely request for each such report:
(a) as soon as practicable, but in any event within one hundred eighty (180) days after the end of each fiscal year of the Company (i) Company, statements of operations and cash flow for such fiscal year, a balance sheet of the Company as of the end of such year, (ii) statements and a schedule as to the sources and applications of income and of cash flows 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 generally accepted accounting principles ("GAAP"), and audited and certified by independent public accountants of nationally or regionally recognized standing selected by the Company;
(b) as soon as practicable, but in any event within ninety (90) days after prior to the end of each quarter of each fiscal year of the Company, unaudited statements an annual budget and plan of income and cash flows operations for such the upcoming fiscal quarteryear approved by the Board of Directors;
(c) within twenty (20) days of the end of each month, and until a public offering of Common Stock of the Company, an unaudited balance sheet, and a comparison between (x) the actual amounts as of and for such fiscal quarter and (y) the comparable amounts for the prior fiscal quarter and as included in the Budget (as defined in Section 3.1(c)) for such fiscal quarter, and a statement of stockholders’ equity operations and balance sheet for and as of the end of such fiscal quartermonth, all in reasonable detail and prepared in accordance with GAAP, subject to year end audit adjustments and the absence of footnotes;
(d) with respect to the financial statements called for in subsection (c) of this Section 7.1, an instrument executed by the Chief Financial Officer or President of the Company and certifying that such financials were prepared in accordance with GAAP (except that such consistently applied with prior practice for earlier periods 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; adjustments and (ii) not contain all notes thereto that may be required in accordance with GAAP); andthe absence of footnotes;
(ce) as soon as practicableall accounting letters or reports from independent auditors and such other information relating to the financial condition, but in any event thirty (30) days before the end business, prospects or corporate affairs of each fiscal year, a budget and business plan for the next fiscal year, prepared on a monthly 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 (such budget and business plan as the Major Investor or any assignee of the Major Investor may from time to time request, provided, however, that is approved by the Company shall not be obligated to provide information which the Board of Directors is collectively referred deems in good faith to herein as the “Budget”). 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 Section 3.1 to the contrary, the Company may cease providing the information set forth in this 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 offeringproprietary; provided that the Company’s covenants under this 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.and
Appears in 1 contract
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 a Competitor of the Company:
(a) as soon as practicable, but in any event within one hundred eighty (180) 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 (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;
(b) Holder as soon as practicable, but in any event within ninety (90) days after the end of each quarter fiscal year of the Company, an income statement for such fiscal year, a balance sheet of the Company and statement of shareholder’s equity as of the end of such year, 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 audited and certified by an independent public accounting firm of nationally recognized standing selected by the Company;
(b) The Company shall deliver to each Holder holding at least 50,000 shares of Registrable Securities (as adjusted for stock splits, stock dividends or recapitalizations) 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, an unaudited statements profit or loss statement, a statement of income and cash flows for such fiscal quarter, quarter and an unaudited balance sheet, and a comparison between (x) the actual amounts as of and for such fiscal quarter and (y) the comparable amounts for the prior fiscal quarter and as included in the Budget (as defined in Section 3.1(c)) for such fiscal quarter, and a statement of stockholders’ equity 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; 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 thirty (30) days before prior to the end of each fiscal year, a budget and business plan for the next fiscal year, prepared on a monthly basis, including balance sheets, income statements, sheets and sources and applications of funds statements of cash flow for such months and, promptly after as soon as prepared, any other budgets or revised budgets prepared by the Company;
(c) With respect to the financial statements called for in subsection (b) of this Section 2.1, an instrument executed by the Chief Financial Officer or President of the Company and certifying that such financials were prepared in accordance with GAAP consistently applied with prior practice for earlier periods (such budget with the exception of footnotes that may be required by GAAP) and business plan 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 is approved by the foregoing shall not restrict the right of the Company to change its accounting principles consistent with GAAP, if the Board of Directors determines that it is collectively referred to herein as in the “Budget”). 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 best interest of the Company and all such consolidated subsidiaries. Notwithstanding anything else in this Section 3.1 to the contrary, the Company may cease providing the information set forth in this 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 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 effectiveso.
Appears in 1 contract
Sources: Investors’ Rights Agreement (Financial Engines, 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:
(a) as soon as practicable, but in any event within one hundred eighty ninety (18090) 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 (iii) a statement of stockholders’ equity as of the end of such year. Unless otherwise waived in writing by Iconiq Strategic Partners II, L.P. (“ICONIQ”), OpenView Venture Partners III, L.P. (“OpenView”), Index Ventures VI (Jersey), L.P (“Index Ventures”) and ru-Net Technology Capital LP (“RTP Ventures”), all such financial statements shall be audited and certified by independent public accountants of nationally or regionally recognized standing selected approved by the CompanyBoard, including a majority of the Preferred Directors;
(b) as soon as practicable, but in any event within ninety forty-five (9045) days after the end of each quarter of the first three (3) quarters of each fiscal year of the Company, unaudited statements of income and of cash flows for each such fiscal quarter, and an unaudited balance sheet, and a comparison between (x) the actual amounts as of and for such fiscal quarter and (y) the comparable amounts for the prior fiscal quarter and as included in the Budget (as defined in Section 3.1(c)) for such fiscal quarter, 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 practicableupon request, but in any event thirty (30) days before copies of the end of each fiscal year, a most recent budget and business plan for the next fiscal year, prepared on a monthly 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 (such budget and business plan that is approved by the Board of Directors is collectively referred to herein as collectively, the “Budget”)) approved by the Board, including a majority of the Preferred Directors; and
(d) 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 Section Subsection 3.1 to the contrary, the Company may cease providing the information set forth in this Section 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 Section 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 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 Investor (other than a Major Investor is reasonably deemed by the Company to be a Competitor competitor of the Company:, provided, however, that Major Investors that are venture capital funds shall not be deemed competitors of the Company solely as a result of their investment in other companies):
(a) as soon as practicable, but in any event within one hundred eighty (180) 120 days after the end of each fiscal year of the Company (i) Company, 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 (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, as and to the extent otherwise required by the Board, audited and certified by an independent public accountants accounting firm of nationally or regionally recognized standing selected by the CompanyCompany (the “Annual Financial Statements”);
(b) as soon as practicable, but in any event within ninety (90) 45 days after the end of each quarter of each fiscal year of the Company, an unaudited statements profit or loss statement, a statement of income and cash flows for such fiscal quarter, quarter and an unaudited balance sheet, and a comparison between (x) the actual amounts as of and for such fiscal quarter and (y) the comparable amounts for the prior fiscal quarter and as included in the Budget (as defined in Section 3.1(c)) for such fiscal quarter, and a statement of stockholders’ equity 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; and (ii) not contain all notes thereto that may be required in accordance with GAAP); and;
(c) 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;
(d) as soon as practicable, but in any event thirty (30) 60 days before prior to the end of each fiscal year, a budget and business plan for the next fiscal year, approved by the Board and prepared on a monthly basis, including balance sheets, income statements, and statements of cash flow for such months and, promptly after as soon as prepared, any other budgets or revised budgets prepared by the Company;
(e) such other information relating to the financial condition, business or corporate affairs of the Company as the Major Investor may from time to time reasonably request, provided, however, that the Company shall not be obligated under this subsection (such budget f) to provide information that (i) it deems in good faith to be a trade secret or similar confidential information or (ii) the disclosure of which would adversely affect the attorney-client privilege between the Company and business plan that is approved its counsel; and
(f) with respect to any unaudited financial statements called for in this Section 2.1, an instrument executed by the Board of Directors is collectively referred to herein as the “Budget”). 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 Chief Financial Officer or President of the Company and all certifying that such consolidated subsidiariesfinancials 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. Notwithstanding anything else in this Section 3.1 2.1 to the contrary, the Company may cease providing the information set forth in this Section 3.1 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 Section 3.1 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 1 contract
Delivery of Financial Statements. The Company shall deliver to ▇▇▇▇▇▇▇, so long as ▇▇▇▇▇▇▇ owns any shares, and each Major Investorother Holder of at least 200,000 shares (appropriately adjusted for any stock split, provided that the Board dividend, combination or other recapitalization) of Directors has not reasonably determined that such Major Investor is a Competitor Registrable Securities (excluding for purposes of the Company:subsections (c) and (d) below any Common Stock issued to ▇▇▇▇▇▇▇):
(a) as soon as practicable, but in any event within one hundred eighty ninety (18090) days after the end of each fiscal year of the Company (i) Company, 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 (iii) a statement of stockholders’ stockholder’s 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 an independent public accountants accounting firm of nationally or regionally recognized standing selected by the Company;
(b) as soon as practicable, but in any event within ninety thirty (9030) days after the end of each quarter of the first three (3) quarters of each fiscal year of the Company, an unaudited statements profit or loss statement, a statement of income and cash flows for such fiscal quarter, quarter and an unaudited balance sheet, and a comparison between (x) the actual amounts as of and for such fiscal quarter and (y) the comparable amounts for the prior fiscal quarter and as included in the Budget (as defined in Section 3.1(c)) for such fiscal quarter, and a statement of stockholders’ equity 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; and (ii) not contain all notes thereto that may be required in accordance with GAAP); and;
(c) within thirty (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;
(d) as soon as practicable, but in any event thirty (30) days before prior to the end of each fiscal year, a budget and business plan for the next fiscal year, prepared on a monthly basis, including balance sheets, income statements, and statements of cash flow for such months and, promptly after as soon as prepared, any other budgets or revised budgets prepared by the Company; and
(e) with respect to the financial statements called for in subsections (b) and (c) of this Section 2.1, an instrument executed by the Chief Financial Officer or President of the Company and certifying that such financials were prepared in accordance with GAAP consistently applied with prior practice for earlier periods (such budget with the exception of footnotes that may be required by GAAP) and business plan 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 is approved by the foregoing shall not restrict the right of the Company to change its accounting principles consistent with GAAP, if the Board of Directors determines that it is collectively referred to herein as in the “Budget”). 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 best interest of the Company and all such consolidated subsidiaries. Notwithstanding anything else in this Section 3.1 to the contrary, the Company may cease providing the information set forth in this 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 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 effectiveso.
Appears in 1 contract
Delivery of Financial Statements. The For as long as the Preferred Shares are outstanding, the Company shall deliver to (i) each Major Investor, provided that Investor or any transferee thereof holding at least 1.5% of the Board of Directors has not reasonably determined that such Major Investor is a Competitor fully-diluted share capital of the Company:, (ii) each holder of Preferred E Shares (as defined in the Company’s Articles of Association, as then in effect), so long as such holder, together with its Permitted Transferees, collectively hold at least 50% of the Preferred E Shares issuable to such holder pursuant to the Purchase Agreement (as adjusted for any Recapitalization Event with respect to such shares), and (iii) each Fidelity Investor holding any shares of the Company (each, an “Eligible Investor”):
(a) as soon as practicable, but in any event within one a hundred eighty and twenty (180120) days after the end of each fiscal year of the Company (i) Company, 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 (iii) a statement of stockholders’ shareholder’s 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, on consolidated and standalone basis, prepared in accordance with generally accepted accounting principles in the United States (“GAAP”), and audited and certified by independent public accountants of nationally or regionally recognized standing selected by the Company, and accompanied by an opinion of such accounting firm which opinion shall state that such balance sheet and income statement and statement of 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 has been made in accordance with GAAP;
(b) as soon as practicable, but in any event within ninety sixty (9060) days after the end of each quarter of the first three (3) quarters of each fiscal year of the Company, an unaudited statements but reviewed (by independent public accountants of nationally recognized standing selected by the Company) consolidated and standalone income and statement, statement of cash flows for such fiscal quarter, quarter and an unaudited but reviewed (by independent public accountants of nationally recognized standing selected by the Company) balance sheet, and a comparison between (x) the actual amounts as of and for such fiscal quarter and (y) the comparable amounts for the prior fiscal quarter and as included in the Budget (as defined in Section 3.1(c)) for such fiscal quarter, and a statement of stockholders’ equity sheet as of the end of such fiscal quarter, and in the case of the first, second and third quarterly periods, for the period from the beginning of the current fiscal year to the end of such quarterly period, setting forth in each case in comparative form the figures for the corresponding period of the previous fiscal year, all prepared in accordance with GAAP (except that such financial statements may (i) be subject to normal yearreasonable detail and United States dollar-end audit adjustments; and (ii) not contain all notes thereto that may be required in accordance with GAAP); anddenominated;
(c) 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, prepared on a monthly basis, including balance sheets, income statements, statements and statements of cash flow flows for such months and, promptly after as soon as prepared, any other budgets or revised budgets prepared by the Company Company; and
(d) such budget and business plan that is approved by the Board of Directors is collectively referred other information relating to herein as the “Budget”). 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 condition, business, prospects or corporate affairs of the Company and all such consolidated subsidiaries. Notwithstanding anything else in this Section 3.1 as the Eligible Investor may from time to the contrarytime reasonably request, provided, however, that the Company may cease providing the shall not be obligated under this subsection (d) to provide information set forth that it deems in this Section 3.1 during the period starting with the date sixty (60) days before the Company’s good-good faith estimate to be a trade secret or similar confidential information of the date of filing of Company or any affiliate thereof, unless 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 Section 3.1 shall be reinstated at such time as the Company customary confidentiality undertaking is no longer actively employing its commercially reasonable efforts to cause such registration statement to become effectivesigned.
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:
(a) as soon as practicable, but in any event within one hundred eighty and twenty (180120) 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 the comparable amounts for the prior 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, ; with all such financial statements (i)-(iii) to be audited and certified by independent public accountants of nationally or regionally internationally-recognized standing selected by the Company;
(b) as soon as practicable, but in any event within ninety sixty (9060) days after the end of each quarter of the first three (3) quarters of each fiscal year of the CompanyCompany (beginning with the first quarter of 2019), unaudited but reviewed statements of income and cash flows for such fiscal quarter, and an unaudited balance sheet, and a comparison between (x) the actual amounts as of and for such fiscal quarter and (y) the comparable amounts for the prior fiscal quarter and as included in the Budget (as defined in Section 3.1(c)) for such fiscal quarter, sheet and a statement of stockholdersshareholders’ equity as of the end of such fiscal quarter, all prepared in accordance with US GAAP or IFRS (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 GAAPUS GAAP or IFRS);
(c) together with the reports detailed in Subsections 3.1(a) and 3.1(b) above, a statement showing the number of shares of each class and series of share capital and securities convertible into or exercisable for share capital outstanding at the end of the period, the Ordinary Shares issuable upon conversion or exercise of any outstanding securities convertible or exercisable for Ordinary Shares and the exchange ratio or exercise price applicable thereto, and the number of options (issued and not yet issued but reserved for issuance, if any), all in sufficient detail as to permit the Investors to calculate 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) 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 IFRS 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, unless similar certifications are included in the accountant’s opinion or review report, as the case may be, relating to such financial statements; and
(ce) as soon as practicablesuch other information relating to the financial condition, but in any event thirty (30) days before the end business, prospects, or corporate affairs of each fiscal year, a budget and business plan for the next fiscal year, prepared on a monthly 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 (such budget and business plan that is approved by the Board of Directors is collectively referred as any Eligible Investor may from time to herein as the “Budget”)time reasonably request. 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 (i.e. consolidating financial statements of the Company and all such consolidated subsidiaries. Notwithstanding anything else in this Section 3.1 to the contrary, the Company may cease providing the information set forth in this 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 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 (Alpha Tau Medical Ltd.)
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:
(a) as soon as practicable, but in any event within one hundred eighty twenty (180120) days after the end of each fiscal year of the Company (i) Company, an income statement for such fiscal year, a balance sheet of the Company, statement of shareholders' equity as of the end of such year, (ii) statements of income year and a statement of cash flows 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 Companyprepared in accordance with generally accepted accounting principles;
(b) as soon as practicable, but in any event within ninety forty-five (9045) days after the end of each quarter of the first three (3) quarters of each fiscal year of the Company, an unaudited statements profit or loss statement, a statement of income and cash flows schedule for such fiscal quarter, and an unaudited balance sheet, and a comparison between (x) the actual amounts as of and for such fiscal quarter and (y) the comparable amounts for the prior fiscal quarter and as included in the Budget (as defined in Section 3.1(c)) for such fiscal quarter, sheet and a statement of stockholders’ shareholder'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); and;
(c) as soon as practicable, but in any event thirty sixty (3060) days before after the end of each fiscal year, beginning with the fiscal year ending December 31, 1999, a budget and business plan for the next fiscal year, prepared on a monthly quarterly basis, including balance sheets, income statements, sheets and statements a statement of cash flow flows for such months and, promptly after as soon as prepared, any other budgets or revised budgets prepared by the Company; and
(d) such other information relating to the financial condition, business, prospects or corporate affairs of the Company (such budget and business plan that is approved by the Board of Directors is collectively referred to herein as the “Budget”). IfInvestor or any assignee of the Investor may from time to time request, for any periodprovided, however, that the Company has shall not be obligated under this subsection (d) or any subsidiary whose accounts are consolidated with those other subsection of Section 2.2 to provide information which it deems in good faith to be a trade secret or similar confidential information.
(e) Each Investor hereby agrees to hold in confidence and trust and not to misuse or disclose any confidential information of the Company, then in respect of such period including the financial statements delivered pursuant referred to in this Section 2.2 ("Confidentially Disclosed Information"), without the foregoing sections prior written consent of the Company; provided, however that an Investor shall not be required to obtain the consolidated and consolidating financial statements prior written consent of the Company and all to distribute the Confidentially Disclosed Information to any affiliate of limited partner of such consolidated subsidiaries. Notwithstanding anything else Investor provided that such affiliate or limited partner has agreed to hold such information in this Section 3.1 to the contrary, the Company may cease providing the information same manner as set forth in this Section 3.1 during the period starting with the date sixty paragraph (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 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 effectivee).
Appears in 1 contract
Delivery of Financial Statements. The Company shall shall, upon request, deliver to each Major Investor (or transferee of an Investor, provided ) that the Board of Directors has not reasonably determined that such Major Investor is a Competitor of the Companyholds Preferred Stock:
(a) as soon as practicable, but in any event within one hundred eighty (180) days [***] after the end of each fiscal year of the Company (i) Company, 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 (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 of nationally or regionally recognized standing selected by the Company;
(b) as soon as practicable, but in any event within ninety (90) days [***] after the end of each quarter of the first three quarters of each fiscal year of the Company, unaudited statements an income statement and a statement of income and cash flows for such fiscal quarter, quarter and an unaudited balance sheet, and a comparison between (x) the actual amounts as of and for such fiscal quarter and (y) the comparable amounts for the prior fiscal quarter and as included in the Budget (as defined in Section 3.1(c)) for such fiscal quarter, and a statement of stockholders’ equity 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); and;
(c) as soon as practicable, but in any event thirty (30) days before at least [***] prior to the end of each fiscal year, a budget and business plan for the next fiscal year, prepared on a monthly basis, including balance sheets, income statements, statements and statements of cash flow flows for such months and, promptly after as soon as prepared, any other budgets or revised budgets prepared by the Company Company; and
(d) such budget and business plan that is approved by the Board of Directors is collectively referred other information relating to herein as the “Budget”). 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 condition, business or corporate affairs of the Company as such Investor may from time to time reasonably request, provided, however, that the Company shall not be obligated under this subsection (d) or any other subsection of Section 3.1 to provide information (i) that it deems in good faith to be a trade secret or similar confidential information or (ii) the disclosure of which would adversely affect the attorney-client privilege between the Company and all such consolidated subsidiaries. its counsel.
(e) Notwithstanding anything else in this Section 3.1 to the contrary, the Company may cease providing the information set forth in this 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 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. 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.
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:
(a) as soon as practicable, but in any event within one hundred eighty twenty (180120) days after the end of each fiscal year of the Company (commencing with the fiscal year ending December 31, 2008), (i) a balance sheet as of the end of such year, (ii) statements of income and of cash flows 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;
(b) as soon as practicable, but in any event within ninety thirty-five (9035) days after of the end of each quarter month (commencing with October 2008), an unaudited income statement and statement of each fiscal year of the Company, unaudited statements of income and cash flows for such fiscal quartermonth, and an unaudited balance sheet, and a comparison between (x) the actual amounts as of and for such fiscal quarter and (y) the comparable amounts for the prior fiscal quarter and as included in the Budget (as defined in Section 3.1(c)) for such fiscal quarter, and a statement of stockholders’ equity sheet as of the end of such fiscal quartermonth, 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 thirty forty-five (3045) days before after the end beginning of each fiscal year of the Company (commencing with the 2009 fiscal year), a budget and business an annual operating plan for the next fiscal year;
(d) such other information relating to the financial condition, prepared on a monthly basisbusiness, including balance sheetsprospects, income statements, and statements or corporate affairs of cash flow for such months and, promptly after prepared, any other budgets or revised budgets prepared by the Company as any Major Investor may from time to time reasonably request; provided, that the Company shall not be obligated under this Section 3.1 to provide information (such budget 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 business plan that is approved by the Board of Directors is collectively referred to herein as the “Budget”)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 Section 3.1 to the contrary, the Company may cease providing the information set forth in this 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 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 a Competitor of the Company:
(a) as soon as practicable, but in any event within one hundred eighty (180) days after the end of each fiscal year of the Company (i) a balance sheet as of the end of such year, year and (ii) statements of income and of cash flows 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 Companyprepared in accordance with GAAP;
(b) as soon as practicable, but in any event within ninety sixty (9060) days after the end of each quarter 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 an unaudited balance sheet, and a comparison between (x) the actual amounts as of and for such fiscal quarter and (y) the comparable amounts for the prior fiscal quarter and as included in the Budget (as defined in Section 3.1(c)) for such fiscal quarter, and a statement of stockholders’ equity an unaudited balance sheet as of the end of such fiscal quarter, all prepared substantially 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 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 substantially 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, prepared on a monthly basis, including balance sheetsforecasting the Company’s revenues, income statementsexpenses and cash positions;
(e) as soon as practicable, and statements but in any event within forty-five (45) days after the end of cash flow for each of the financial quarters of each fiscal year of the Company, the Company’s current capitalization table in sufficient detail as to allow each Major Investor to calculate its percentage ownership in the Company; and
(f) such months andother information relating to the financial condition, promptly after prepared, any other budgets business or revised budgets prepared by 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 (such budget 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 business plan that is approved by the Board of Directors is collectively referred to herein as the “Budget”)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 Section Subsection 3.1 to the contrary, the Company may cease providing the information set forth in this Section 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 Section 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 (Bolt Biotherapeutics, Inc.)
Delivery of Financial Statements. The Company shall deliver to each Investor holding at least 10,000,000 (appropriately adjusted for any Recapitalizations) Registrable Securities (a “Major Investor, provided that the Board of Directors has not reasonably determined that such Major Investor is a Competitor of the Company:”):
(a) as soon as practicable, but in any event within one hundred eighty (180) 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 (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;
(b) as soon as practicable, but in any event within ninety (90) days after the end of each quarter of each fiscal year of the Company, unaudited statements of an income and cash flows statement for such fiscal quarteryear, a balance sheet of the Company and an unaudited balance sheet, and a comparison between (x) the actual amounts as of and for such fiscal quarter and (y) the comparable amounts for the prior fiscal quarter and as included in the Budget (as defined in Section 3.1(c)) for such fiscal quarter, and a statement of stockholders’ shareholder’s equity as of the end of such fiscal quarteryear, all and a statement of cash flows for such year, such year-end financial reports to be in reasonable detail, prepared in accordance with GAAP generally accepted accounting principles (“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, and if so determined by the Company’s Board of Directors (the “Board”), audited and certified by independent public accountants of regionally recognized standing selected by 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 income statement, statement of cash flows for such fiscal quarter and an unaudited balance sheet as of the end of such fiscal quarter;
(c) 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, prepared on a monthly basis, including balance sheets, income statements, statements and statements of cash flow flows for such months and, promptly after as soon as prepared, any other budgets or revised budgets prepared by the Company Company; and
(d) such budget and business plan that is approved by the Board of Directors is collectively referred other information relating to herein as the “Budget”). 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 condition, business, prospects or corporate affairs of the Company and all as such consolidated subsidiaries. Notwithstanding anything else in this Section 3.1 Investor or any assignee of such Investor may from time to the contrarytime reasonably request, provided, however, that the Company may cease providing the information set forth in this 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 shall not be obligated under this Section 3.1 shall 2.1 to provide information that it deems in good faith to be reinstated at such time as a trade secret or similar confidential information or the disclosure of which would adversely affect the attorney-client privilege between the Company is no longer actively employing and its commercially reasonable efforts to cause such registration statement to become effectivecounsel.
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 competitor of the Company:
(a) as soon as practicable, but in any event within one hundred eighty ninety (18090) days (or within sixty (60) days, in case one of the Major Investors so request in writing pursuant to a regulatory requirement imposed on such investor) 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 setting forth in comparative form the figure for the previous fiscal year, all in reasonable detail; and (iii) a statement of stockholdersshareholders’ 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 standing, who are among the “Big-4” accounting firms, selected by the Company and approved by the Company’s Board of Directors;
(b) as soon as practicable, but in any event within ninety sixty (9060) days (or within forty-five (45) days, in case one of the Major Investors so request in writing pursuant to a regulatory requirement imposed on such investor) after the end of each quarter 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 comparison between (x) the actual amounts as of and for such fiscal quarter and (y) the comparable amounts for the prior fiscal quarter and as included in the Budget (as defined in Section 3.1(c)) for such fiscal quarter, sheet and a statement of stockholdersshareholders’ equity as of the end of such fiscal quarter, all prepared in accordance with U.S. 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 U.S. GAAP); and;
(c) as soon as practicable, but in any event thirty fifteen (3015) days before the end of each fiscal year, a budget and business operating plan for the next fiscal yearyear (collectively, the “Budget”), approved by the Board of Directors and prepared on a monthly quarterly basis, including balance sheets, income statements, and statements of cash flow for such months quarters and, promptly after prepared, any other budgets or revised budgets prepared by the Company Company;
(d) a monthly cash flow report in such budget and business plan that is approved format as shall be determined by the Board Company, Galam Ltd., XT Hi-Tech Investments (1992) Ltd. and Millennium II Materials Technology Fund L.P.;
(e) with respect to the financial statements called for in Section 3.1(b) above, and only to the extent that one of Directors is collectively referred the Major Investors so request in writing pursuant to herein a regulatory requirement imposed on such investor, 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 Section 3.1(b)) and fairly present the “Budget”)financial condition of the Company and its results of operation for the periods specified therein; and
(f) 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. 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 Section 3.1 to the contrary, the Company may cease providing the information set forth in this 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 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 Investor and each Investor that is an SBIC (as defined in the Board of Directors has not reasonably determined that such Major Investor is a Competitor of the Company:Purchase Agreement):
(a) as soon as practicable, but in any event within one hundred eighty ninety (18090) days after the end of each fiscal year of the Company (i) Company, 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 (iii) a statement of stockholders’ stockholder’s 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 or regionally recognized standing selected by the Company;
(b) as soon as practicable, but in any event within ninety forty-five (9045) days after the end of each quarter of the first three (3) quarters of each fiscal year of the Company, an unaudited statements income statement, statement of income and cash flows for such fiscal quarter, quarter and an unaudited balance sheet, and a comparison between (x) the actual amounts as of and for such fiscal quarter and (y) the comparable amounts for the prior fiscal quarter and as included in the Budget (as defined in Section 3.1(c)) for such fiscal quarter, and a statement of stockholders’ equity sheet as of the end of such fiscal quarter;
(c) within thirty (30) days of the end of each month, all prepared an unaudited income statement and statement of cash flows and balance sheet for and as of the end of such month, in accordance with GAAP (except that reasonable detail, and such financial statements may (i) be subject shall include a report comparing such statements to normal year-end audit adjustments; the monthly budget and (ii) not contain all notes thereto that may be required in accordance with GAAP); andbusiness plan for the Company as provided to the Board of Directors;
(cd) 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, prepared on a monthly basis, including balance sheets, income statements, statements and statements of cash flow flows for such months and, promptly after as soon as prepared, any other budgets or revised budgets prepared by the Company Company;
(such budget and business plan that is approved by the Board of Directors is collectively referred e) with respect to herein as the “Budget”). 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 called for in subsections (b) and (c) of this Section 2.1, an instrument executed by the foregoing sections shall 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 (with the exception of footnotes that may be required by GAAP) and fairly present the consolidated and consolidating financial statements condition of the Company and all its results of operation for the period specified, subject to year-end audit adjustments; and
(f) such consolidated subsidiaries. Notwithstanding anything else in this Section 3.1 other information relating to the contrarycondition (financial or otherwise), business, prospects or corporate affairs of the Company may cease providing as the information set forth in this Section 3.1 during SBIC or the period starting with the date sixty (60) days before the Company’s good-faith estimate Major Investor or any assignee of the date of filing of a registration statement if it Major Investor may from time to time reasonably concludes it must do so to comply with the SEC rules applicable to such registration statement and related offering; provided request, provided, however, that the Company’s covenants Company shall not be obligated under this subsection (f) or any other subsection of Section 3.1 shall 2.1 to provide information that it deems in good faith to be reinstated at such time as the Company is no longer actively employing its commercially reasonable efforts to cause such registration statement to become effectivea trade secret or similar confidential information.
Appears in 1 contract
Sources: Investors’ Rights Agreement (Compellent Technologies 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 CompanyCompetitor:
(a) as soon as practicable, but in any event within one hundred eighty (180) 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;
(b) as soon as practicable, but in any event within ninety (90) days after the end of each quarter 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 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 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, unaudited statements of income and cash flows for such fiscal quarter, and an unaudited balance sheet, and a comparison between (x) the actual amounts as of and for such fiscal quarter and (y) the comparable amounts for the prior fiscal quarter and as included in the Budget (as defined in Section 3.1(c)) for such fiscal quarter, 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;
(cd) as soon as practicable, but in any event within forty-five (45) days after the end of each 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 the Major Investors to calculate 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;
(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 yearyear (collectively, the “Budget”), approved by the Board of Directors (including the Preferred Directors) and prepared on a monthly 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;
(f) 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 (such budget 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 could reasonably be expected to adversely affect the attorney-client privilege between the Company and business plan that is approved by the Board of Directors is collectively referred to herein as the “Budget”)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 Section Subsection 3.1 to the contrary, the Company may cease providing the information set forth in this Section 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 Section 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 (Sionna 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 not a Competitor of the CompanyCompetitor:
(a) as soon as practicable, but in any event within one hundred eighty twenty (180120) 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 (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;
(b) as soon as practicable, but in any event within ninety forty-five (9045) days after the end of each quarter 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 an unaudited balance sheet, and a comparison between (x) the actual amounts as of and for such fiscal quarter and (y) the comparable amounts for the prior fiscal quarter and as included in the Budget (as defined in Section 3.1(c)) for such fiscal quarter, and a statement of stockholders’ equity 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; 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 thirty (30) days before the end of each fiscal year, a budget and business plan for the next fiscal yearyear (collectively, the “Budget”), approved by the Board of Directors and prepared on a monthly 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) 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 (such budget 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); (ii) that could reasonably be expected to result in a conflict of interest, or (iii) the disclosure of which would adversely affect the attorney-client privilege between the Company and business plan that is approved by the Board of Directors is collectively referred to herein as the “Budget”)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 Section Subsection 3.1 to the contrary, the Company may cease providing the information set forth in this Section 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 Section 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 Upon request by a Major Investor (as hereafter defined), the Company shall deliver to each Major Investor, Investor (other than a Major Investor reasonably deemed by the Company to be a competitor; provided that the Board none of Directors has not reasonably determined that Worldview Technology Partners, Founders Fund, WI ▇▇▇▇▇▇, ▇▇ Fund or Exccess Ventures shall be deemed a competitor merely because an investment fund affiliated with such Major Investor is Investors invests in a Competitor of the Company:competitive enterprise).
(a) as soon as practicable, but in any event within one hundred eighty (180) 120 days after the end of each fiscal year of the Company (i) Company, 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 (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, as and to the extent otherwise required by the Board, audited and certified by an independent public accountants accounting firm of nationally or regionally recognized standing selected by the Company;
(b) as soon as practicable, but in any event within ninety (90) 30 days after the end of each quarter of the first three quarters of each fiscal year of the Company, an unaudited statements profit or loss statement, a statement of income and cash flows for such fiscal quarter, quarter and an unaudited balance sheet, and a comparison between (x) the actual amounts as of and for such fiscal quarter and (y) the comparable amounts for the prior fiscal quarter and as included in the Budget (as defined in Section 3.1(c)) for such fiscal quarter, and a statement of stockholders’ equity 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; 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 thirty (30) 30 days before prior to the end of each fiscal year, a budget and business plan for the next fiscal year, prepared on a 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 months and, promptly after as soon as prepared, any other budgets or revised budgets prepared by the Company Company; and
(such budget and business plan that is approved by d) as soon as practicable, but in any event within 90 days after the Board end of Directors is collectively referred to herein as the “Budget”). If, for any period, the Company has any subsidiary whose accounts are consolidated with those each fiscal year of the Company, then in respect a comparison between the annual budget of such period the financial statements delivered pursuant to Company, if any, for the foregoing sections shall be completed fiscal year and the consolidated and consolidating financial statements of the Company and all for such consolidated subsidiariesfiscal year. Notwithstanding anything else in this Section 3.1 2.1 to the contrary, the Company may cease providing the information set forth in this Section 3.1 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 Section 3.1 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 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 Investor (other than a Major Investor is reasonably deemed by the Company to be Competitor; provided, however, that in the event Pfizer Manufacturing LLC, a Competitor limited liability company organized under the laws of the State of Delaware (“PM LLC”) and Pfizer Production LLC, a limited liability company organized under the laws of the State of Delaware (“PP LLC” and, together with PM LLC, the “General Partners”) acting in their capacity as general partners for and on behalf of C.P. Pharmaceuticals International, C.V., a Netherlands limited partnership (commanditaire vennootschap) having its seat at Rotterdam, The Netherlands, registered with the Trade Register held by the Chamber of Commerce of Rotterdam, the Netherlands, under number 24280998 or Pfizer Inc. (collectively, “Pfizer”) or Takeda Ventures, Inc. (“Takeda”) is or becomes a Competitor, the investment, legal, finance, tax, accounting and audit personnel of such Investor shall continue to have access to the information rights set forth in this Section 3.1 solely for the purposes of managing, evaluating and reporting such Investor’s investment in the Company:):
(a) as soon as practicable, but in any event within one hundred eighty twenty (180120) 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 (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;
(b) as soon as practicable, but in any event within ninety forty-five (9045) days after the end of each quarter 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 an unaudited balance sheet, and a comparison between (x) the actual amounts as of and for such fiscal quarter and (y) the comparable amounts for the prior fiscal quarter and as included in the Budget (as defined in Section 3.1(c)) for such fiscal quarter, and a statement of stockholders’ equity 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; 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 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);
(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 yearyear (collectively, the “Budget”), approved by the Board of Directors and prepared on a monthly 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;
(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 Section 3.1 to provide information (such budget 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 business plan that is approved by the Board of Directors is collectively referred to herein as the “Budget”)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 Section 3.1 to the contrary, the Company may cease providing the information set forth in this 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 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 Investor (other than a Holder reasonably deemed by the Board of Directors has not reasonably determined that such Major Investor is Company to be a Competitor competitor of the Company:):
(a) as soon as practicable, but in any event within one hundred eighty (180) 120 days after the end of each fiscal year of the Company (i) Company, 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 (iii) a statement of stockholders’ stockholder’s 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”) consistently applied, and audited and certified by an independent public accountants accounting firm of nationally or regionally recognized standing selected by the Company;
(b) as soon as practicable, but in any event within ninety forty-five (9045) days after the end of each quarter of the first three (3) quarters of each fiscal year of the Company, unaudited a balance sheet of the Company as of the end of such quarterly period, and consolidated statements of income and cash flows of the Company for such fiscal quarterquarterly period, and prepared in accordance with GAAP consistently applied, except such financial statements need not contain the notes required by GAAP;
(c) as soon as practicable, but in any event within twenty (20) days of the end of each month, an unaudited balance sheet, and a comparison between (x) the actual amounts as of and for such fiscal quarter and (y) the comparable amounts for the prior fiscal quarter and as included in the Budget (as defined in Section 3.1(c)) for such fiscal quarter, income statement and a statement of stockholders’ equity cash flows and balance sheet for and as of the end of such fiscal quartermonth, all prepared in accordance reasonable detail, and compared against the business plan for the Company with GAAP (except that respect to 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); andmonth;
(cd) as soon as practicable, but in any event thirty (30) days before prior to the end beginning of each fiscal year, a budget and business plan for the next such fiscal year, prepared on a monthly basis, including balance sheets, income statements, and statements of cash flow for such months and, promptly after as soon as prepared, any other budgets or revised budgets prepared by the Company Company;
(such budget e) a summary capitalization table including all share, option and business plan that is approved by the Board of Directors is collectively referred to herein as the “Budget”). If, for any period, the Company has any subsidiary whose accounts are consolidated with those warrant holders within twenty (20) days of the Company, then in end of each calendar quarter; and
(f) with respect of such period to the financial statements delivered pursuant to called for in subsections (b) and (c) of this Section 2.1, an instrument executed by the foregoing sections shall be the consolidated and consolidating financial statements Chief Financial Officer or President of the Company and all certifying that such consolidated subsidiaries. Notwithstanding anything else financials were prepared in this Section 3.1 to accordance with GAAP consistently applied with prior practice for earlier periods (with the contrary, exception of footnotes that may be required by GAAP) and fairly present the financial condition of the Company may cease providing the information set forth in this Section 3.1 during and its results of operation for the period starting with the date sixty (60) days before the Company’s goodspecified, subject to year-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; end audit adjustment, provided that the Company’s covenants under this Section 3.1 foregoing shall be reinstated at such time as not restrict the right of the Company to change its accounting principles consistent with GAAP, if the Board determines that it is no longer actively employing its commercially reasonable efforts in the best interest of the Company to cause such registration statement to become effectivedo so.
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:
(a) as soon as practicable, but in any event within one hundred eighty twenty (180120) 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 below) for such year, with an explanation of any material differences between such amounts, 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;Board of Directors (including the affirmative vote of a majority of the Investor Directors).
(b) as soon as practicable, but in any event within ninety thirty (9030) days after the end of each quarter month and 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 month or quarter, and an unaudited balance sheet, and a comparison between (x) the actual amounts as of and for such fiscal quarter and (y) the comparable amounts for the prior fiscal quarter and as included in the Budget (as defined in Section 3.1(c)) for such fiscal quarter, and a statement of stockholders’ equity sheet as of the end of such fiscal month or 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 (iii) be subject to other exceptions that the audit committee of the Board of Directors may approve) and all in reasonable detail, including year-to-date figures, comparisons to the Budget (as defined below); and, the immediately preceding period and the comparable period in the immediately preceding fiscal year, all in accordance with a template approved by the Majority Holders;
(c) as soon as practicable, but in any event within thirty (30) days after the end of each month, a written monthly report provided by the chief executive officer, president, chief operating officer and chief financial officer that summarizes the overall operation of the Company’s business, including the status of material development projects, material contracts, contract negotiations, sales initiatives and human resource matters);
(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 yearyear (collectively, prepared the “Budget”), which budget shall be subject to the approval of the Board of Directors and shall include (i) financial projections for the next two (2) fiscal years in the same format as its financial statements, (ii) on a monthly quarterly basis, including balance sheets, income statements, and statements of cash flow for such months and, promptly after prepared, any other budgets rolling twelve month forecasts in the format requested or revised budgets prepared by the Company (such budget and business plan that is approved by the Board of Directors is collectively referred Directors, and (iii) monthly cash outlay in the format requested or approved by the Board of Directors. The business plan furnished pursuant to herein this Section 3.1(d) shall include projected balance sheets and profit and loss and cash flow statements, and shall outline the Company’s strategy and plan of execution for marketing and sales, product development, customer service and financing and shall include such other information as may be reasonably requested by the “Budget”)Board of Directors. The Company shall comply in all material respects with its applicable Budget for each fiscal year. Any material variation from the Budget shall require approval by the Board of Directors; and
(e) if requested by a Major Investor, as soon as practicable, 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 requested 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 issuances, if any, all in sufficient detail as to permit such Major Investor to calculate its respective percentage equity ownership in the Company;
(f) 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. The Company will keep true records and books of account in which full, true, and correct entries will be made of all dealings or transactions in relation to its business and affairs so as to permit the preparation of financial statements in accordance with GAAP. The Company shall maintain in full force and effect all licenses and other rights to use patents, processes, licenses, trademarks, trade names, or copyrights owned or possessed by it or any subsidiary and necessary to the conduct of the Company’s business. 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 Section Subsection 3.1 to the contrary, the Company may cease providing the information set forth in this Section 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 Section 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 holding at least five percent (5%) of the Company:’s issued and outstanding shares, on an as-converted basis (each, an “Entitled Holder”):
(a) as soon as practicable, but in any event within one hundred eighty (180) 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 (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;
(b) as 1.1.1. As soon as practicable, but in any event within ninety (90) days after the end of each fiscal year of the Company, a consolidated balance sheet of the Company as of the end of such year, and statements of income and statements of cash flow of the Company 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 and prepared by a firm of independent public accountants in the State of Israel who are members of the Israeli Institute of Certified Public Accountants and affiliated with one of the “Big Four” U.S. accountant firms (the “External Auditors”), 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 has been made in accordance with generally accepted auditing standards;
1.1.2. As soon as practicable, but in any event within forty five (45) days after the end of each quarter of each fiscal year of the Company, an unaudited consolidated balance sheet of the Company as at the end of each such period and unaudited consolidated statements of (i) income and (ii) cash flows flow of the Company for such fiscal quarterperiod and, in the case of the first, second and an unaudited balance sheetthird quarterly periods, and a comparison between (x) the actual amounts as of and for such fiscal quarter and (y) the comparable amounts for the prior period from the beginning of the current fiscal quarter and as included in the Budget (as defined in Section 3.1(c)) for such fiscal quarter, and a statement of stockholders’ equity as of year to the end of such quarterly period, setting forth in each case in comparative form the figures for the corresponding period of the previous fiscal quarteryear, 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 (the “CFO”), 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; , and (ii) not contain all notes thereto that may be required in accordance with GAAP)reviewed by the External Auditors; and
(c) as 1.1.3. As soon as practicable, but in any event thirty within twenty-one (3021) days before after the end of each fiscal yearmonth, a budget and business plan for the next fiscal year, prepared on report in a monthly 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 form agreed from time to time by the Company (such budget and business plan that is approved by the Company’s Board of Directors is collectively referred to herein as (the “BudgetBoard”). If, for any period, the Company has any subsidiary whose accounts are consolidated with those which report shall include a business and a financial summary 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 Section 3.1 to the contrary, the Company may cease providing the information set forth in this 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 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 effectivestatus.
Appears in 1 contract
Delivery of Financial Statements. The Company shall deliver to each Major Investor, provided that the Board of Directors Managers has not reasonably determined that such Major Investor is a Competitor competitor of the Company:Company:
(a) as soon as practicable, but in any event within one hundred eighty (180) 180 days after the end of each fiscal year of the Company (i) a balance sheet as of the end of such year, and (ii) statements of income and of cash flows for such year, and a comparison between (iiix) the actual amounts as of and for such fiscal year and (y) the comparable amounts for the prior year, with an explanation of any material differences between such amounts and a statement schedule as to the sources and applications of stockholders’ equity funds for such year, 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;
(b) as soon as practicable, but in any event within ninety (90) 90 days after the end of each quarter of the first three quarters of each fiscal year of the Company, unaudited statements of income and cash flows for such fiscal quarter, and an unaudited balance sheet, and a comparison between (x) the actual amounts as of and for such fiscal quarter and (y) the comparable amounts for the prior fiscal quarter and as included in the Budget (as defined in Section 3.1(c)) for such fiscal quarter, and a statement of stockholders’ equity 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; and (ii) not contain all notes thereto that may be required in accordance with GAAP); and
(c) as soon as practicablesuch other information relating to the financial condition, but in any event thirty (30) days before the end business, prospects, or corporate affairs of each fiscal year, a budget and business plan for the next fiscal year, prepared on a monthly 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 as any Major Investor may from time to time reasonably request; provided, however, that the Company shall not be obligated under this Section 3.1 to provide information (such budget 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 business plan that is approved by the Board of Directors is collectively referred to herein as the “Budget”)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 Section 3.1 to the contrary, the Company may cease providing the information set forth in this 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 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
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:
(a) as soon as practicable, but in any event within one hundred eighty (180) days [***] after the end of each fiscal year of the Company beginning with the fiscal year ended March 31, 2023: (i) a balance sheet as of the end of such year, (ii) statements of income and of cash flows for such year, and (iii) a statement of stockholders’ equity as of the end of such year, all such financial statements to be to be (x) prepared in accordance with applicable Accounting Standards (as such term is defined in the License Agreement) and (y) audited and certified commencing in the year in which the Company or any of its Affiliates achieves its first commercial sale of a Licensed Product (as defined in the License Agreement), with the audit to be conducted by an independent registered public accountants of nationally or regionally recognized standing accounting firm selected by the Company;
(b) as soon as practicable, but in any event within ninety (90) days [***] after the end of each quarter of the first three quarters of each fiscal year of the CompanyCompany beginning with the fiscal quarter ending June 30, 2023, unaudited statements of income and cash flows for such fiscal quarter, and an unaudited a balance sheet, and a comparison between (x) the actual amounts as of and sheet for such fiscal quarter and (y) the comparable amounts for the prior fiscal quarter and as included in the Budget (as defined in Section 3.1(c)) for such fiscal quarter, and a statement of stockholders’ equity as of the end of such fiscal quarter, all quarter (respectively) to be prepared in accordance with GAAP applicable Accounting Standards (as such term is defined in the License Agreement) (except that such financial statements may (i) may be subject to income tax or normal year-year end audit adjustments; and (ii) may not contain all notes thereto that may be required in accordance with GAAPapplicable Accounting Standards); and. [***]
(c) 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, prepared on a monthly 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 (such budget and business plan that is approved by the Board of Directors is collectively referred to herein as the “Budget”). [***] 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 clauses (a) through (b) shall be the consolidated and consolidating financial statements of the Company and all such consolidated subsidiariesSubsidiaries. Notwithstanding anything else in this Section 3.1 (Delivery of Financial Statements) to the contrarycontrary and subject to applicable Law and Order, the Company may cease providing the information set forth in this Section 3.1 (Delivery of Financial Statements) 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 Section 3.1 (Delivery of Financial Statements) 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.
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Delivery of Financial Statements. The Company shall deliver to (A) each Major Investor, provided that Holder (other than a Holder reasonably deemed by the Board of Directors has not reasonably determined that such Major Investor is Company to be a Competitor competitor of the Company; provided that each of KPCB Holdings, Inc., Accel London III, L.P. and any of its affiliates (“Accel”), Second Century Ventures, LLC and any of its affiliates (“SCV”) and Brookside Capital Partners Fund, L.P. and any of its affiliates (“Brookside”) shall not be deemed a competitor of the Company) of at least 700,000 shares (subject to adjustment for stock splits, stock dividends, reclassifications or the like) of Registrable Securities, (B) those Holders listed on Schedule 1 hereto so long as such Holders continued to hold shares of Registrable Securities and (C) any Advisory Investor (each, a “Major Investor”) and, with respect to Section 2.1(a) only, to Fidelity Management & Research Company and any of its affiliates (“Fidelity”), so long as Fidelity owns at least one share of the Company’s capital stock:
(a) as soon as practicable, but in any event within one hundred eighty (180) 90 days after the end of each fiscal year of the Company (i) Company, 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 (iii) a statement of stockholders’ stockholder’s 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 an independent public accountants accounting firm of nationally or regionally recognized standing selected by the Company;
(b) as soon as practicable, but in any event within ninety (90) 30 days after the end of each quarter of the first three quarters of each fiscal year of the Company, an unaudited statements profit or loss statement, a statement of income and cash flows for such fiscal quarter, quarter and an unaudited balance sheet, and a comparison between (x) the actual amounts as of and for such fiscal quarter and (y) the comparable amounts for the prior fiscal quarter and as included in the Budget (as defined in Section 3.1(c)) for such fiscal quarter, and a statement of stockholders’ equity 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; and (ii) not contain all notes thereto that may be required in accordance with GAAP); and;
(c) 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;
(d) as soon as practicable, but in any event thirty (30) not less than 30 days before prior to the end of each fiscal year, a budget and business plan for the next fiscal year, prepared on a monthly basis, including balance sheets, income statements, and statements of cash flow for such months and, promptly after as soon as prepared, any other budgets or revised budgets prepared by the Company; and
(e) with respect to the financial statements called for in subsections (b) and (c) of this Section 2.1, an instrument executed by the Chief Financial Officer or President of the Company and certifying that such financials were prepared in accordance with GAAP consistently applied with prior practice for earlier periods (such budget with the exception of footnotes that may be required by GAAP) and business plan 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 is approved by the foregoing shall not restrict the right of the Company to change its accounting principles consistent with GAAP, if the Board of Directors determines that it is collectively referred to herein as in the “Budget”). 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 best interest of the Company and all such consolidated subsidiaries. Notwithstanding anything else in this Section 3.1 to the contrary, the Company may cease providing the information set forth in this 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 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 effectiveso.
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Delivery of Financial Statements. The Company shall deliver to each Major InvestorInvestor who so requests, provided that the Board of Directors has not reasonably determined that such Major Investor is a Competitor of the Company:
(a) as soon as practicable, but in any event within one hundred eighty (180) 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 (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;
(b) as soon as practicable, but in any event within ninety (90) days [***] after the end of each quarter 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 an unaudited balance sheet, and a comparison between (x) the actual amounts as of and for such fiscal quarter and (y) the comparable amounts for the prior fiscal quarter and as included in the Budget (as defined in Section 3.1(c)) for such fiscal quarter, sheet and a statement of stockholders’ equity as of the end of such fiscal quarter;
(c) such other information relating to the financial condition, all prepared in accordance with GAAP (except annual budget, business, prospects, or corporate affairs of the Company as any Investor may from time to time reasonably request; provided, however, that such financial statements may the Company shall not be obligated under this Subsection 4.1 to provide information (i) that the Company reasonably determines in good faith to be subject a trade secret or confidential information (unless covered by an enforceable confidentiality agreement, in a form acceptable to normal year-end audit adjustmentsthe Company); and or (ii) not contain all notes thereto that may be required in accordance with GAAP)the disclosure of which would adversely affect the attorney-client privilege between the Company and its counsel; and
(cd) 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, starting in fiscal year [***] (collectively, the “Budget”), approved by the Board of Directors and prepared on a monthly [***] 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 (such budget and business plan that is approved by the Board of Directors is collectively referred to herein as the “Budget”)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 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 Section 3.1 Subsection 4.1 to the contrary, the Company may cease providing the information set forth in this Section 3.1 Subsection 4.1 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 Section 3.1 Subsection 4.1 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:
(a) as soon as practicable, but in any event within one hundred eighty (180) 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 (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;
(b) as soon as practicable, but in any event within ninety (90) days after the end of each quarter of each fiscal year of the Company, unaudited consolidated and unconsolidated income statements and statements of income and cash flows for such fiscal quarter, the Company and an unaudited balance sheet, and a comparison between (x) each member of the actual amounts as of and Company Group for such fiscal quarter year, consolidated and (y) the comparable amounts consolidating balance sheets for the prior fiscal quarter Company and as included in each member of the Budget (as defined in Section 3.1(c)) for such fiscal quarter, and a statement of stockholders’ equity Company Group as of the end of such the fiscal quarter, year all prepared in accordance with US GAAP (except that such financial statements may (i) be subject and audited and certified by a "big 4" firm of independent certified by independent certified public accountants of recognized international standing and reputation duly appointed by the Board of Directors to normal year-end audit adjustments; and serve as the Company's auditors;
(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 thirty (30) days before after the end of each fiscal quarter of the Company, consolidated and unconsolidated unaudited income statements and statements of cash flows for such fiscal quarter, consolidated unaudited balance sheets for the Company and each member of the Company Group as of the end of such fiscal quarter, and a management report;
(iii) as soon as practicable, but in any event within fifteen (15) days of the end of each month, unaudited income statements and statements of cash flows for such month, balance sheets for the Company and each member of the Company Group as of the end of such month, and a management report;
(iv) as soon as practicable, but in any event at least thirty (30) days prior to the end of each fiscal year, a an operating budget, budget of capital expenditures, and business strategic plan for the next succeeding fiscal year, prepared on a monthly basisall as approved by the Board;
(v) as soon as practicable, including balance sheetsbut in any event within five (5) working days after providing such information to such other Person, income statements, and statements copies of cash flow for such months and, promptly after prepared, all other documents or other information sent to any other budgets or revised budgets prepared by Person in such other Person's capacity as a shareholder of the Company Company;
(vi) as soon as practicable, but in any event at least fourteen (14) working days prior to such budget meeting, notices and business plan that is approved by agendas of any meeting of the Board of Directors is collectively referred to herein as the “Budget”). 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 Section 3.1 to the contrary, or any member of the Company may cease providing the information set forth Group; and
(vii) as soon as practicable, but in this Section 3.1 during the period starting with the date sixty any event within thirty (6030) days before after such meeting (or in the Company’s good-faith estimate case of a resolution adopted in writing in lieu of a meeting, within thirty (30) days after the adoption of such resolution), minutes of any meeting of the date Board of filing Directors of the Company or any member of the Company Group (or in the case of a registration statement if it reasonably concludes it must do so to comply with the SEC rules applicable to resolution adopted in writing in lieu of a meeting, a copy of such registration statement and related offering; provided that the Company’s covenants under this 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 effectiveresolution).
Appears in 1 contract
Sources: Share Purchase Agreement (Suntech Power Holdings Co., Ltd.)