Delivery of Financial Statements. So long as a Founder (and/or her applicable Founder Group) hold at least 10,000 shares of Class A Common Stock (subject to appropriate adjustment in the event of any stock dividend, stock split, combination or other similar recapitalization with respect to the Class A Common Stock), the Corporation shall deliver to such Stockholders: 7.1.1 as soon as practicable, but in any event within one hundred twenty (120) days after the end of each fiscal year of the Corporation, its (i) balance sheet as of the end of such year, (ii) statements of income and of cash flows for such year, and (iii) statement of Stockholders’ equity as of the end of such year, all such financial statements prepared in accordance with GAAP, audited and certified by independent public accountants of nationally recognized standing selected by the Corporation; 7.1.2 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 Corporation, unaudited statements of income and cash flows for such fiscal quarter, and an unaudited balance sheet as of the end of such fiscal quarter, all prepared in accordance with GAAP (except that such financial statements may (i) be subject to normal year-end audit adjustments; and (ii) not contain all notes thereto that may be required in accordance with GAAP); 7.1.3 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 Corporation, a statement showing the number of shares of each class of capital stock outstanding at the end of the period, and the number of shares of issued equity compensation awards and equity compensation awards not yet issued but reserved for issuance, if any, all in sufficient detail as to permit the Stockholder to calculate its percentage equity ownership in the Corporation, and certified by the chief financial officer or chief executive officer of the Corporation as being true, complete, and correct; and 7.1.4 as soon as practicable, but in any event within thirty (30) days of the end of each month, an unaudited income statement for such month, and an unaudited balance sheet as of the end of such month, all prepared in accordance with GAAP (except that such financial statements may (i) be subject to normal year-end audit adjustments and (ii) not contain all notes thereto that may be required in accordance with GAAP).
Appears in 2 contracts
Sources: Redemption Agreement (SoulCycle Inc.), Redemption Agreement (SoulCycle Inc.)
Delivery of Financial Statements. So long as a Founder (and/or her applicable Founder Group) hold at least 10,000 shares of Class A Common Stock (subject to appropriate adjustment in the event of any stock dividend, stock split, combination or other similar recapitalization with respect to the Class A Common Stock), the Corporation The Company shall deliver to such Stockholderseach Major Investor:
7.1.1 (a) as soon as practicable, but in any event within one hundred twenty (120) days after the end of each fiscal year of the Corporation, its 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 Stockholdersstockholders’ equity as of the end of such year, all such financial statements prepared in accordance with GAAP, audited and certified by independent public accountants of nationally recognized standing selected by the CorporationCompany (provided, however, that the foregoing statements and other information for the 2018 fiscal year will not be required to be delivered until July 31, 2019);
7.1.2 (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 CorporationCompany, 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 (i) be subject to normal year-end audit adjustments; and (ii) not contain all notes thereto that may be required in accordance with GAAP);
7.1.3 (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 CorporationCompany, 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 equity compensation awards stock options and equity compensation awards stock options not yet issued but reserved for issuance, if any, all in sufficient detail as to permit the Stockholder Major Investors to calculate its their respective percentage equity ownership in the CorporationCompany, and certified by the chief financial officer or chief executive officer of the Corporation Company as being true, complete, and correct; and;
7.1.4 (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 (i) sixty (60) days before the end of each fiscal year a draft of a budget and business plan for the next fiscal year, and (ii) thirty (30) days before the end of each fiscal year, a finalized budget and business plan for the next 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;
(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 (including without limitation a current capitalization table of the Company showing the number of shares of each class and series of capital stock and outstanding securities convertible into or exercisable for shares of capital 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); provided, however, that the Company shall not be obligated under this Subsection 3.1 to provide information (i) that the Company reasonably determines in good faith to be a trade secret or confidential information (unless covered by an enforceable confidentiality agreement, in a form acceptable to the Company); or (ii) the disclosure of which would adversely affect the attorney-client privilege between the Company and its counsel; and
(g) on a current basis, information regarding any events, discussions with any governmental authority, notices or material changes with respect to any tax (other than ordinary course communications which would not reasonably be expected to be material to the Company), criminal or regulatory investigation or action involving the Company or any of its subsidiaries. If, for any period, the Company has any subsidiary whose accounts are consolidated with those of the Company, then in respect of such period the financial statements delivered pursuant to the foregoing sections shall be the consolidated and consolidating financial statements of the Company and all such consolidated subsidiaries. Notwithstanding anything else in this Subsection 3.1 to the contrary, the Company may cease providing the information set forth in this Subsection 3.1 during the period starting with the date thirty (30) days before the Company’s good-faith estimate of the date of filing of a registration statement if it reasonably concludes it must do so to comply with the SEC rules applicable to such registration statement and related offering; provided that the Company’s covenants under this Subsection 3.1 shall be reinstated at such time as the Company is no longer actively employing its commercially reasonable efforts to cause such registration statement to become effective. Notwithstanding anything else to the contrary contained in this Agreement, the Company shall deliver to any Investor the information provided pursuant to Section 3.1(a), (b) and (g) for so long as the Investor or any of their Affiliates hold any Registrable Securities.
Appears in 2 contracts
Sources: Investors’ Rights Agreement (KnowBe4, Inc.), Investors’ Rights Agreement (KnowBe4, Inc.)
Delivery of Financial Statements. So long as a Founder (and/or her applicable Founder Group) hold at least 10,000 shares of Class A Common Stock (subject to appropriate adjustment in the event of any stock dividend, stock split, combination or other similar recapitalization with respect to the Class A Common Stock), the Corporation The Company shall deliver to such Stockholdersdeliver:
7.1.1 (a) to each Investor, as soon as practicable, but in any event within one hundred twenty (120) days after the end of each fiscal year of the CorporationCompany, its (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 Stockholdersstockholders’ equity as of the end of such year, all such financial statements prepared set forth in accordance with GAAP, subsections (i) through (iii) audited and certified by independent public accountants of nationally regionally recognized standing selected by the CorporationCompany, and (iv) a comparison between (A) the actual amounts as of and for such fiscal year and (B) the comparable amounts included in the Budget (as defined below) for such year, with an explanation of any material differences between such amounts and a schedule as to the sources and applications of funds for such year;
7.1.2 (b) to each Investor, as soon as practicable, but in any event within forty-five (45) days after the end of each fiscal quarter of the first three Company, (3i) quarters of each fiscal year of the Corporation, unaudited statements of income and cash flows for such fiscal quarter, and (ii) an unaudited balance sheet and a statement of stockholders’ equity as of the end of such fiscal quarter, all prepared in accordance with GAAP (except that such financial statements contemplated by subsection (i) or (ii) may (iA) be subject to normal year-end audit adjustments; adjustments and (iiB) not contain all notes thereto that may be required in accordance with GAAP), and (iii) a comparison between (x) the actual amounts as of and for such fiscal quarter and (y) the comparable amounts included in the Budget for such quarter, with an explanation of any material differences between such amounts and a schedule as to the sources and applications of funds for such quarter;
7.1.3 (c) to each Investor, as soon as practicable, but in any event within forty-five (45) days after a budget and business plan for the end of each of the first three (3) quarters of each next fiscal year (collectively, the “Budget”), approved by the Board and prepared on a quarterly basis, including balance sheets, income statements, and statements of cash flow for such months and, promptly after prepared, any other budgets or revised budgets prepared by the CorporationCompany;
(d) to each Major Investor, a statement showing copies of all materials distributed to the Board; and
(e) to each Investor, promptly and accurately, and shall use its best efforts to cause its transfer agent to promptly respond to requests by such Investor from time to time for, information relating to, the (i) accounting or securities law matters required in connection with such Investor’s audit or (ii) the actual holdings of such Investor, including in relation to the total outstanding number of shares of each class and series of capital stock and securities convertible into or exercisable for shares of capital stock outstanding at the end of the period, the Common Stock issuable upon conversion or exercise of any outstanding securities convertible or exercisable for Common Stock and the exchange ratio or exercise price applicable thereto, and the number of shares of issued equity compensation awards stock options and equity compensation awards stock options not yet issued but reserved for issuance, if any, all in sufficient detail as to permit the Stockholder requesting Investor to calculate its respective percentage equity ownership in the CorporationCompany. If, and certified by for any period, the chief financial officer or chief executive officer Company has any subsidiary whose accounts are consolidated with those of the Corporation as being trueCompany, completethen in respect of such period the financial statements delivered pursuant to the foregoing sections shall be the consolidated and consolidating financial statements of the Company and all such consolidated subsidiaries. Notwithstanding anything else in this Subsection 3.1 to the contrary, and correct; and
7.1.4 as soon as practicableother than with respect to any Major Investor, but the Company may cease providing the information set forth in any event within thirty this Subsection 3.1 during the period starting with the date sixty (3060) days before the Company’s good-faith estimate of the end date of each month, an unaudited income filing of a registration statement for if it reasonably concludes it must do so to comply with the SEC rules applicable to such month, registration statement and an unaudited balance sheet related offering; provided that the Company’s covenants under this Subsection 3.1 shall be reinstated at such time as of the end of Company is no longer actively employing its commercially reasonable efforts to cause such month, all prepared in accordance with GAAP (except that such financial statements may (i) be subject registration statement to normal year-end audit adjustments and (ii) not contain all notes thereto that may be required in accordance with GAAP)become effective.
Appears in 2 contracts
Sources: Investors’ Rights Agreement (Harmony Biosciences Holdings, Inc.), Investors’ Rights Agreement (Harmony Biosciences Holdings, Inc.)
Delivery of Financial Statements. So long as a Founder (and/or her applicable Founder Group) hold at least 10,000 shares of Class A Common Stock (subject to appropriate adjustment in the event of any stock dividend, stock split, combination or other similar recapitalization with respect to the Class A Common Stock), the Corporation The Company shall deliver to such Stockholderseach Major Investor:
7.1.1 (a) as soon as practicable, but in any event within one hundred twenty (120) 120 days after the end of each fiscal year of the CorporationCompany, its (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 Stockholdersstockholders’ equity as of the end of such year, all such financial statements prepared in accordance with GAAP, audited and certified by independent public accountants of nationally recognized standing selected by the CorporationCompany;
7.1.2 (b) as soon as practicable, but in any event within forty-five (45) 45 days after the end of each of the first three (3) quarters of each fiscal year of the CorporationCompany, 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 (i) be subject to normal year-end audit adjustments; and (ii) not contain all notes thereto that may be required in accordance with GAAP);
7.1.3 (c) as soon as practicable, but in any event within forty-five (45) 45 days after the end of each of the first three (3) quarters quarter of each fiscal year of the CorporationCompany, 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 equity compensation awards stock options and equity compensation awards stock options not yet issued but reserved for issuance, if any, all in sufficient detail as to permit the Stockholder Major Investors to calculate its their respective percentage equity ownership in the CorporationCompany, and certified by the chief financial officer or chief executive officer of the Corporation Company as being true, complete, complete and correct; and;
7.1.4 (d) as soon as practicable, but in any event within thirty (30) 30 days of after the end of each month, an unaudited income statement and statement of cash flows for such month, and an unaudited balance sheet and statement of stockholders’ equity as of the end of such month, all prepared in accordance with GAAP (except that such financial statements may (i) be subject to normal year-end audit adjustments and (ii) not contain all notes thereto that may be required in accordance with GAAP);
(e) as soon as practicable, but in any event 30 days before the end of each fiscal year, a budget and business plan for the next fiscal year, 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; 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 a form reasonably acceptable to the Company) or (ii) the disclosure of which would adversely affect the attorney-client privilege between the Company and its counsel. If, for any period, the Company has any subsidiary whose accounts are consolidated with those of the Company, then in respect of such period the financial statements delivered pursuant to the foregoing sections shall be the consolidated and consolidating financial statements of the Company and all such consolidated subsidiaries. Notwithstanding anything else in this 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 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 (Instil Bio, Inc.), Investors’ Rights Agreement (Instil Bio, Inc.)
Delivery of Financial Statements. So long as a Founder (and/or her applicable Founder Group) hold at least 10,000 shares of Class A Common Stock (subject to appropriate adjustment in the event of any stock dividend, stock split, combination or other similar recapitalization with respect to the Class A Common Stock), the Corporation The Company shall deliver to such Stockholderseach Major Investor:
7.1.1 (a) as soon as practicable, but in any event within one hundred twenty ninety (12090) days after the end of each fiscal year of the CorporationCompany (or such extended period as may be approved by the Board of Directors up to one hundred eighty (180) days after the end of each fiscal year), its (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, 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 Stockholdersstockholders’ equity as of the end of such year, all in each case such financial statements prepared in accordance with GAAP, shall be audited and certified by independent public accountants of nationally recognized standing selected by the CorporationBoard of Directors;
7.1.2 (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 CorporationCompany, unaudited statements of income and of cash flows for such fiscal quarter, and an unaudited balance sheet and a statement of stockholders’ equity as of the end of such fiscal quarter, all prepared in accordance with GAAP (except that such the financial statements report may (i) be subject to normal year-end audit adjustments; adjustments and (ii) not contain all notes thereto that may be required in accordance with GAAP);
7.1.3 (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 CorporationCompany, 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 equity compensation awards stock options and equity compensation awards stock options not yet issued but reserved for issuance, if any, all in sufficient detail as to permit the Stockholder Major Investors to calculate its their respective percentage equity ownership in the CorporationCompany, and certified by the chief financial officer or chief executive officer of the Corporation Company as being true, complete, and correct; and;
7.1.4 (d) as soon as practicable, but in any event within thirty twenty-one (3021) 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 the financial statements report may (i) be subject to normal year-end audit adjustments and (ii) not contain all notes thereto that may be required in accordance with GAAP), with such statements comparing actual results against budgeted amounts and prior period performance;
(e) as soon as practicable, but in any event thirty (30) days before the end of each fiscal year, a budget and business plan for the next fiscal year (collectively, the “Budget”), 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) with respect to the financial statements called for in Section 3.1(a), Section 3.1(b) and Section 3.1(d), an instrument executed by the chief financial officer and chief executive officer of the Company certifying that such financial statements (i) were prepared in accordance with GAAP consistently applied with prior practice for earlier periods (except as otherwise set forth in Section 3.1(b) and Section 3.1(d)) and (ii) fairly present the financial condition of the Company and its results of operation for the periods specified therein; and
(g) 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 that (i) it reasonably considers to be a trade secret (unless covered by an enforceable confidentiality agreement, in form acceptable to the Company) or (ii) the Chief Executive Officer of the Company, after consultation with the Company’s outside legal counsel or the Board of Directors of the Company, in each case in good faith, reasonably determines would cause competitive harm to the Company if disclosed or would, if disclosed, 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 (60) days before the Company’s good-faith estimate of the date of filing a registration statement; 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 (Tremor Video Inc.), Investors’ Rights Agreement (Tremor Video Inc.)
Delivery of Financial Statements. So long as a Founder (and/or her applicable Founder Group) hold at least 10,000 shares of Class A Common Stock (subject to appropriate adjustment in the event of any stock dividend, stock split, combination or other similar recapitalization with respect to the Class A Common Stock), the Corporation The Company shall deliver to such Stockholders:
7.1.1 (x) each Investor as soon as practicable, but in any event within one hundred twenty (120) days after the end of each fiscal year of the Corporation, its Company (i) an audited consolidated balance sheet as of the end of such year, (ii) audited consolidated statements of income and of cash flows for such year, year and (iii) an audited consolidated statement of Stockholdersshareholders’ equity as of the end of such year, all and (y) each Major Investor the following, provided, in each case, that the Board of Directors has not reasonably determined that such financial statements prepared Investor is a Competitor of the Company:
(a) 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 accordance the Budget (as defined in Subsection 3.1(b)) for such year, with GAAP, audited an explanation of any material differences between such amounts and certified by independent public accountants a schedule as to the sources and applications of nationally recognized standing selected by the Corporation;funds for such year.
7.1.2 (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 CorporationCompany, unaudited consolidated statements of income and cash flows for such fiscal quarter, and an unaudited consolidated balance sheet as of the end of such fiscal quarter, all prepared in accordance with GAAP or, if applicable, 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 GAAPGAAP or, if applicable, IFRS);
7.1.3 as soon as practicable, but in any event within forty-five (45c) days after the end of each of the first three (3) quarters of each fiscal year of the Corporation, a statement showing the number of shares of each class of capital stock outstanding at the end of the period, and the number of shares of issued equity compensation awards and equity compensation awards not yet issued but reserved for issuance, if any, all in sufficient detail as to permit the Stockholder to calculate its percentage equity ownership in the Corporation, and certified by the chief financial officer or chief executive officer of the Corporation as being true, complete, and correct; and
7.1.4 as soon as practicable, but in any event within thirty (30) days of after the end of each month, an unaudited consolidated statements of income statement and cash flows for such month, and an unaudited consolidated balance sheet as of the end of such month, all prepared in accordance with GAAP or, if applicable, IFRS (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 GAAPGAAP or, if applicable, IFRS); and
(d) as soon as practicable, but in any event thirty (30) days before the end of each fiscal year, a budget and business plan for the next fiscal year (collectively, the “Budget”), 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. Notwithstanding anything else in this Subsection 3.1 to the contrary, the Company may cease providing the information set forth in this Subsection 3.1 during the period starting with the date sixty (60) days before the Company’s good-faith estimate of the date of filing of a registration statement if it reasonably concludes it must do so to comply with the SEC rules applicable to such registration statement and related offering; provided that the Company’s covenants under this Subsection 3.1 shall be reinstated at such time as the Company is no longer actively employing its commercially reasonable efforts to cause such registration statement to become effective.
Appears in 2 contracts
Sources: Investors’ Rights Agreement (Biohaven Pharmaceutical Holding Co Ltd.), Investors’ Rights Agreement (Biohaven Pharmaceutical Holding Co Ltd.)
Delivery of Financial Statements. So long as a Founder (and/or her applicable Founder Group) hold at least 10,000 shares of Class A Common Stock (subject to appropriate adjustment in the event of any stock dividend, stock split, combination or other similar recapitalization with respect to the Class A Common Stock), the Corporation The Company shall deliver to such Stockholderseach Major Investor:
7.1.1 (a) as soon as practicable, but in any event within ninety (90) days after the end of each fiscal year of the Company (i) an unaudited balance sheet as of the end of such year, (ii) unaudited statements of income and of cash flows for such year, and 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 and business plan for such year prepared in the prior fiscal 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);
(b) as soon as practicable, but in any event within one hundred twenty eighty (120180) days after the end of each fiscal year of the Corporation, its 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 and business plan for such year prepared in the prior fiscal 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 Stockholdersstockholders’ equity as of the end of such year, all such financial statements prepared in accordance with GAAP, GAAP audited and certified by independent public accountants of nationally regionally recognized standing selected by the CorporationCompany;
7.1.2 (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 CorporationCompany, 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 (i) be subject to normal year-end audit adjustments; and (ii) not contain all notes thereto that may be required in accordance with GAAP);
7.1.3 as soon as practicable, but in any event within forty-five (45d) days after the end of each of the first three (3) quarters of each fiscal year of the Corporation, a statement showing the number of shares of each class of capital stock outstanding at the end of the period, and the number of shares of issued equity compensation awards and equity compensation awards not yet issued but reserved for issuance, if any, all in sufficient detail as to permit the Stockholder to calculate its percentage equity ownership in the Corporation, and certified by the chief financial officer or chief executive officer of the Corporation as being true, complete, and correct; and
7.1.4 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) 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 a form acceptable to the Company); or (ii) the disclosure of which would adversely affect the attorney-client privilege between the Company and its counsel. If, for any period, the Company has any subsidiary whose accounts are consolidated with those of the Company, then in respect of such period the financial statements delivered pursuant to the foregoing sections shall be the consolidated and consolidating financial statements of the Company and all such consolidated subsidiaries. Notwithstanding anything else in this Subsection 3.1 to the contrary, the Company may cease providing the information set forth in this Subsection 3.1 during the period starting with the date sixty (60) days before the Company’s good-faith estimate of the date of filing of a registration statement if it reasonably concludes it must do so to comply with the SEC rules applicable to such registration statement and related offering; provided that the Company’s covenants under this Subsection 3.1 shall be reinstated at such time as the Company is no longer actively employing its commercially reasonable efforts to cause such registration statement to become effective. The Company shall promptly and accurately respond, and shall use its best efforts to cause its transfer agent to promptly respond, to requests for information made on behalf of any Fidelity Investor or Artal relating to (i) accounting or securities law matters required in connection with its audit or (ii) the actual holdings of such Fidelity Investor and Artal, 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 (Scholar Rock Holding Corp), Investors’ Rights Agreement (Scholar Rock Holding Corp)
Delivery of Financial Statements. So long The Company shall deliver to each Major Investor (and, in the case of clause (b) and clause (g) below, each Investor):
(a) as a Founder soon as practicable, but in any event within thirty (and/or her applicable Founder Group30) hold days after the end of each fiscal year of the Company (or such later date as approved by the Company’s Board of Directors, including at least 10,000 shares a majority of Class A Common Stock (subject to appropriate adjustment in the event of any stock dividend, stock split, combination or other similar recapitalization with respect to the Class A Common StockSeries Preferred Directors), the Corporation shall deliver following preliminary unaudited 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 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(f)) 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 Stockholders:year, and (iii) a statement of stockholders’ equity as of the end of such year (collectively, the “Annual Financial Statements”);
7.1.1 (b) as soon as practicable, but in any event within one hundred twenty (120) days after the end of each fiscal year of the CorporationCompany (or such later date as approved by the Company’s Board of Directors, its (i) balance sheet as including at least a majority of the end of such yearSeries Preferred Directors), (ii) statements of income and of cash flows for such year, and (iii) statement of Stockholders’ equity as of the end of such year, all such financial statements prepared in accordance with GAAP, Annual Financial Statements audited and certified by independent public accountants of nationally recognized standing selected by the CorporationCompany; provided, however, the Company’s Board of Directors (including a majority of the Series Preferred Directors) may waive the requirement that the Annual Financial Statements delivered pursuant to this clause (b) be audited;
7.1.2 (c) as soon as practicable, but in any event within forty-five thirty (4530) days after the end of each of the first three (3) quarters of each fiscal year of the CorporationCompany, unaudited statements of income and of cash flows for such fiscal month and quarter, respectively, and an unaudited balance sheet and a statement of stockholders’ equity as of the end of such fiscal quarter, all prepared in accordance with GAAP (except that such financial statements may (i) be subject to normal year-end audit adjustments; and (ii) not contain all notes thereto that may be required in accordance with GAAP);
7.1.3 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 Corporation, a statement showing the number of shares of each class of capital stock outstanding at the end of the period, and the number of shares of issued equity compensation awards and equity compensation awards not yet issued but reserved for issuance, if any, all in sufficient detail as to permit the Stockholder to calculate its percentage equity ownership in the Corporation, and certified by the chief financial officer or chief executive officer of the Corporation as being true, complete, and correct; and
7.1.4 as soon as practicable, but in any event within thirty (30) days of the end of each month, an unaudited income statement for such month, and an unaudited balance sheet as of the end of such month, all prepared in accordance with GAAP (except that such financial statements may (i) be subject to normal year-end audit adjustments and (ii) not contain all notes thereto that may be required in accordance with GAAP);
(d) as soon as practicable, but in any event thirty (30) days before the end of each fiscal year, a budget and business plan for the next fiscal year (collectively, the “Budget”), 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 (with such final Budget to be approved by the Company’s Board of Directors prior to such next fiscal year);
(e) with respect to the financial statements called for in Section 3.1(b) and Section 3.1(c), an instrument executed by the chief financial officer of the Company certifying that such financial statements were prepared in accordance with GAAP consistently applied with prior practice for earlier periods (except as otherwise set forth in Section 3.1(c)) and fairly present the financial condition of the Company and its results of operation for the periods specified therein;
(f) such other information relating to the financial condition, business, prospects, 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 (i) that the Company reasonably determines in good faith to be a trade secret or confidential information (unless covered by an enforceable confidentiality agreement, in form acceptable to the Company) or (ii) the disclosure of which would adversely affect the attorney-client privilege between the Company and its counsel; and
(g) upon request, a then-current capitalization table of the Company setting forth in reasonable detail the outstanding shares of the Company’s capital stock, including with respect to class and series, and the percentage ownership of such capital stock represented by shares held by any requesting Investor. 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 thirty (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 (Receptos, Inc.), Investors' Rights Agreement (Receptos, Inc.)
Delivery of Financial Statements. So long as a Founder The Company shall (and/or her applicable Founder GroupA) hold deliver to each Investor who holds, together with its Affiliates, at least 10,000 150,000 shares of Class A Common Registrable Securities (as adjusted for stock splits and combinations) issued or issuable upon conversion of the Series E Preferred Stock, the Series F Preferred Stock and/or the Series G Preferred Stock, or any combination thereof (subject to appropriate adjustment in a “Major Senior Preferred Investor”), and (B) upon the event request of any other Investor who holds at least 250,000 shares of Registrable Securities (as adjusted for stock dividendsplits and combinations) (a “Key Investor” and, stock splittogether with the Major Senior Preferred Investors, combination or other similar recapitalization with respect to the Class A Common Stock“Major Investors”), the Corporation shall deliver to each such StockholdersMajor Investor, the following:
7.1.1 as soon as practicable, but in any event (a) within one hundred twenty ninety (12090) days after the later of the Company’s receipt of such request, if applicable, and the end of each any fiscal year of the CorporationCompany, its (i) an income statement for such fiscal year, a balance sheet as of the end of such year, (ii) statements of income Company and of cash flows for such year, and (iii) 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 generally accepted accounting principles (“GAAP”), and audited and certified by independent public accountants of nationally regionally recognized standing reputation selected by the Corporation;Company.
7.1.2 as (b) As soon as practicablepracticable after the end of the first, but 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 each thereafter, a balance sheet of the first three (3) quarters of each fiscal year of the Corporation, unaudited statements of income and cash flows for such fiscal quarter, and an unaudited balance sheet Company as of the end of each such quarterly period, and a statement of income and a statement of cash flows of the Company for such period and for the current fiscal quarteryear to date.
(c) within the later of sixty (60) days after the Company’s receipt of such request, all if applicable, and sixty (60) days prior to the end of the fiscal year, a budget and business plan for the next fiscal year, prepared on a monthly basis, including balance sheets and sources and applications of funds statements for such months and, as soon as prepared, any other budgets or revised budgets prepared by the Company and approved by its Board of Directors;
(d) with respect to the financial statements called for in Section 2.1(b), an instrument executed by the Chief Financial Officer, Chief Executive 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);
7.1.3 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 Corporation, a statement showing the number of shares of each class of capital stock outstanding at the end of the period, and the number of shares of issued equity compensation awards and equity compensation awards not yet issued but reserved for issuance, if any, all in sufficient detail as to permit the Stockholder to calculate its percentage equity ownership in the Corporation, and certified by the chief financial officer or chief executive officer of the Corporation as being true, complete, and correctadjustment; and
7.1.4 as soon as practicable(e) such other information relating to the financial condition, but in any event within thirty (30) days business, prospects or corporate affairs of the end Company as such requesting party may from time to time reasonably request, provided, however, that the Company shall not be obligated under this subsection (e) or any other subsection of each month, an unaudited income statement for such month, and an unaudited balance sheet as of the end of such month, all prepared Section 2.1 to provide information which it deems in accordance with GAAP (except that such financial statements may (i) good faith to be subject to normal year-end audit adjustments and (ii) not contain all notes thereto that may be required in accordance with GAAP)a trade secret or similar confidential information.
Appears in 2 contracts
Sources: Investors’ Rights Agreement (Airgain Inc), Investors’ Rights Agreement (Airgain Inc)
Delivery of Financial Statements. So long as a Founder (and/or her applicable Founder Group) hold at least 10,000 shares of Class A Common Stock (subject to appropriate adjustment in the event of any stock dividend, stock split, combination or other similar recapitalization with respect to the Class A Common Stock), the Corporation The Company shall deliver to each Major Investor the required items listed below, provided that the Board of Directors has not reasonably determined that such StockholdersMajor Investor is a Competitor of the Company:
7.1.1 (a) as soon as practicable, but in any event within one hundred twenty ninety (12090) days after the end of each fiscal year of the CorporationCompany, its (i) balance sheet as of the end of such year, (ii) unaudited statements of income and of cash flows for such fiscal year, and (iii) an unaudited balance sheet and a statement of Stockholdersstockholders’ equity as of the end of such fiscal year, all such financial statements prepared in accordance with GAAP, audited and certified by independent public accountants of nationally recognized standing selected by the Corporation;
7.1.2 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 Corporation, unaudited statements of income and cash flows for such fiscal quarter, and an unaudited balance sheet as of the end of such fiscal quarter, all prepared in accordance with GAAP (except that such financial statements may (i) be subject to normal year-end audit adjustments; and (ii) not contain all notes thereto that may be required in accordance with GAAP);
7.1.3 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 Corporation, a statement showing the number of shares of each class of capital stock outstanding at the end of the period, and the number of shares of issued equity compensation awards and equity compensation awards not yet issued but reserved for issuance, if any, all in sufficient detail as to permit the Stockholder to calculate its percentage equity ownership in the Corporation, and certified by the chief financial officer or chief executive officer of the Corporation as being true, complete, and correct; and
7.1.4 as soon as practicable, but in any event within thirty (30) days of the end of each month, an unaudited income statement for such month, and an unaudited balance sheet as of the end of such month, all prepared in accordance with GAAP (except that such financial statements may (i) be subject to normal year-end audit adjustments and (ii) not contain all notes thereto that may be required in accordance with GAAP);
(b) as soon as practicable, but in any event within one hundred eighty (180) days after the end of the fiscal year of the Company ending December 31, 2023, and within one hundred twenty (120) days after the end of each fiscal year of the Company beginning with the fiscal year ending December 31, 2024, (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;
(c) 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, unaudited statements of income and of cash flows for such fiscal quarter, and an unaudited balance sheet and a statement of stockholders’ equity as of the end of such fiscal quarter, all prepared in accordance with GAAP (except that such financial statements may (i) be subject to normal year-end audit adjustments and (ii) not contain all notes thereto that may be required in accordance with GAAP);
(d) 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 each Major Investor 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 within thirty (30) days before the end of each fiscal year, a budget and business plan for the next fiscal year (collectively, the “Budget”), approved by the Board of Directors, including a majority 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; 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; 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 a form acceptable to the Company); or (ii) the disclosure of which would adversely affect the attorney-client privilege between the Company and its counsel. If, for any period, the Company has any subsidiary whose accounts are consolidated with those of the Company, then in respect of such period the financial statements delivered pursuant to the foregoing sections shall be the 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 thirty (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 (Rapport Therapeutics, Inc.), Investors’ Rights Agreement (Rapport Therapeutics, Inc.)
Delivery of Financial Statements. So long as a Founder (and/or her applicable Founder Group) hold at least 10,000 shares of Class A Common Stock (subject to appropriate adjustment in the event of any stock dividend, stock split, combination or other similar recapitalization with respect to the Class A Common Stock), the Corporation The Company shall deliver to each Investor, provided that the Board of Directors has not reasonably determined that such Stockholders:Investor is a competitor of the Company, provided further that any financial investment firm or collective investment vehicle shall not be deemed a competitor of the Company solely by virtue of its ownership (and/or its Affiliates’ ownership) of an equity interest in any competitor held solely for investment purposes.
7.1.1 (a) as soon as practicable, but in any event within one hundred twenty (120) days after the end of each fiscal year of the Corporation, its 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 herein) for such year, and (iii) a statement of Stockholdersstockholders’ equity as of the end of such year, all such financial statements prepared in accordance with GAAP, audited and certified by independent public accountants of nationally recognized standing selected by the CorporationCompany;
7.1.2 (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 CorporationCompany, 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 (i) be subject to normal year-end audit adjustments; and (ii) not contain all notes thereto that may be required in accordance with GAAP);
7.1.3 (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 CorporationCompany, 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 equity compensation awards stock options and equity compensation awards stock options not yet issued but reserved for issuance, if any, all in sufficient detail as to permit the Stockholder Investors to calculate its their respective percentage equity ownership in the CorporationCompany, and certified by the chief financial officer or chief executive officer of the Corporation Company as being true, complete, and correct; and
7.1.4 (d) as soon as practicable, but in any event within thirty (30) days of after the end of each monthfiscal year, an unaudited a draft budget and business plan for the next fiscal year, prepared on a monthly basis, including balance sheets, income statement statements, and statements of cash flow for such monthmonths and, promptly after prepared, any other budgets or revised budgets prepared by the Company, and an unaudited balance sheet as soon as practicable thereafter, the version of such budget and business plan for the next fiscal year approved by the Board (such approved version, collectively, the “Budget”). If, for any period, the Company has any subsidiary whose accounts are consolidated with those of the end Company, then in respect of such month, all prepared in accordance with GAAP (except that such period the financial statements delivered pursuant to the foregoing sections shall be the consolidated and consolidating financial statements of the Company and all such consolidated subsidiaries. Notwithstanding anything else in this Subsection 3.1 to the contrary, the Company may cease providing the information set forth in this Subsection 3.1 during the period starting with the date sixty (i60) days before the Company’s good-faith estimate of the date of filing of a registration statement if it reasonably concludes it must do so to comply with the SEC rules applicable to such registration statement and related offering; provided that the Company’s covenants under this Subsection 3.1 shall be subject reinstated at such time as the Company is no longer actively employing its commercially reasonable efforts to normal year-end audit adjustments and (ii) not contain all notes thereto that may be required in accordance with GAAP)cause such registration statement to become effective.
Appears in 2 contracts
Sources: Investors’ Rights Agreement (Aptinyx Inc.), Investors’ Rights Agreement (Aptinyx Inc.)
Delivery of Financial Statements. So long as a Founder The Company shall deliver to each Major Investor (and/or her applicable Founder Groupfor all subsections below) hold at least 10,000 shares of Class A Common Stock and each Penn Holder (subject to appropriate adjustment in the event of any stock dividend, stock split, combination or other similar recapitalization but solely with respect to the Class A Common Stock), the Corporation shall deliver to such Stockholders:subsections (a) through (d) below):
7.1.1 (a) as soon as practicable, but in any event within one one-hundred and twenty (120) days after the end of each fiscal year of the Corporation, its 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(d)) for such year, with an explanation of any material differences between such amounts and a schedule as to the sources and applications of funds for such year, and (iii) a statement of Stockholdersstockholders’ equity as of the end of such year, all such financial statements prepared in accordance with GAAP, audited and certified by independent public accountants of nationally recognized standing selected by the CorporationCompany;
7.1.2 (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 CorporationCompany, 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 (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);
7.1.3 (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 CorporationCompany, 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 equity compensation awards stock options and equity compensation awards stock options not yet issued but reserved for issuance, if any, all in sufficient detail as to permit the Stockholder Major Investors to calculate its their respective percentage equity ownership in the CorporationCompany, and certified by the chief financial officer or chief executive officer of the Corporation Company as being true, complete, and correct; and;
7.1.4 (d) as soon as practicable, but in any event within thirty (30) days of before the end of each monthfiscal year, an unaudited a budget and business plan for the next fiscal year (collectively, the “Budget”), approved by the Board of Directors and prepared on a monthly basis, including balance sheets, income statement statements, and statements of cash flow for such monthmonths and, and an unaudited balance sheet as 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 end of such monthCompany as any Major Investor may from time to time reasonably request; provided, all prepared in accordance with GAAP (except however, that such financial statements may 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 subject a trade secret or confidential information (unless covered by an enforceable confidentiality agreement, in a form acceptable to normal year-end audit adjustments and the Company); or (ii) not contain 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 notes thereto 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 may the Company’s covenants under this Section 3.1 shall be required in accordance with GAAP)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 (Passage BIO, Inc.), Investors’ Rights Agreement (Passage BIO, Inc.)
Delivery of Financial Statements. So long as a Founder (and/or her applicable Founder Group) hold at least 10,000 shares of Class A Common Stock (subject to appropriate adjustment in the event of any stock dividend, stock split, combination or other similar recapitalization with respect to the Class A Common Stock), the Corporation The Company shall deliver to such Stockholderseach Major Investor:
7.1.1 (a) as soon as practicable, but in any event within one hundred twenty (120) days after the end of each fiscal year of the Corporationyear, its (iA) a balance sheet as of the end of such year, (iiB) statements of income and of cash flows for such year, and a comparison between (iiix) 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 a schedule as to the sources and applications of funds for such fiscal year, and (C) a statement of Stockholders’ stockholder’s equity as of the end of such fiscal year, all such financial statements prepared in accordance with GAAP, GAAP and audited and certified by independent public accountants of nationally recognized standing selected by the CorporationCompany;
7.1.2 as soon as practicable, but in any event within forty-five (45b) days after the end of each of the first three (3) quarters of each fiscal year of the Corporation, unaudited statements of income and cash flows for such fiscal quarter, and an unaudited balance sheet as of the end of such fiscal quarter, all prepared in accordance with GAAP (except that such financial statements may (i) be subject to normal year-end audit adjustments; and (ii) not contain all notes thereto that may be required in accordance with GAAP);
7.1.3 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 Corporation, a statement showing the number of shares of each class of capital stock outstanding at the end of the period, and the number of shares of issued equity compensation awards and equity compensation awards not yet issued but reserved for issuance, if any, all in sufficient detail as to permit the Stockholder to calculate its percentage equity ownership in the Corporation, and certified by the chief financial officer or chief executive officer of the Corporation as being true, complete, and correct; and
7.1.4 as soon as practicable, but in any event within thirty (30) days of after the end of each monthof the four (4) quarters of each fiscal year, an unaudited statements of income statement and of cash flows for such monthfiscal quarter, and an unaudited balance sheet and a statement of stockholder’s equity as of the end of such monthfiscal quarter, including monthly detail, and, if requested by the Board of Directors in its sole discretion, a comparison between (x) the actual amounts as of and for such quarter and (y) the comparable amounts for the prior quarter and the comparable time period one (1) year prior and as included in the Budget for such quarter, with an explanation of any material differences between such amounts and a schedule as to the sources and applications of funds for such quarter, all prepared in accordance with GAAP (except that such financial statements may (i) be subject to normal year-end audit adjustments and (ii) not contain all notes thereto that may be required in accordance with GAAP);
(c) as soon as practicable, but in any event within thirty (30) days after the end of each of the four (4) quarters of each fiscal year, a statement showing (A) the number of shares of capital stock of each class and series at the end of the period, (B) the shares of capital stock issuable upon conversion or exercise of any outstanding Convertible Securities, including (x) the exchange ratio or exercise price applicable thereto or (y) with respect to convertible debt securities, pertinent details regarding such debt securities, including the face amount, issue date, maturity date, interest rate, conversion discount, change of control premium and valuation cap, if applicable, and (C) the number of issued Options and shares of Common Stock reserved for issuance pursuant to any plan, agreement or arrangement approved by the Board of Directors, 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 of the Company or the CEO as being true, complete, and correct;
(d) as soon as practicable, but in any event within thirty (30) days of the end of each month, an unaudited income statement for such month, and an unaudited balance sheet and statement of stockholder’s equity as of the end of such month, and a comparison between (x) the actual amounts as of and for such month and (y) the comparable amounts for the prior month and the comparable time period one (1) year prior and as included in the Budget for such month, with an explanation of any material differences between such amounts and a schedule as to the sources and applications of funds for such month, all prepared in accordance with GAAP (except that such financial statements may (A) be subject to normal year-end audit adjustments and (B) not contain all notes thereto that may be required in accordance with GAAP);
(e) as soon as practicable, but in any event at least thirty (30) days before the end of each fiscal year, a budget and business plan for the next fiscal year (collectively, the “Budget”), approved by the Board of Directors (including a majority of the Preferred Directors), including balance sheets, income statements, and statements of cash flow and, promptly after prepared, any other budgets or revised budgets prepared by the Company;
(f) with respect to the financial statements called for in Section 3.1(a), Section 3.1(b) and Section 3.1(c), an instrument executed by the Chief Financial Officer of the Company and the CEO certifying that such financial statements were prepared in accordance with GAAP consistently applied with prior practice for earlier periods (except as otherwise set forth in Section 3.1(a)(ii) and Section 3.1(a)(iv)) and fairly present the financial condition of the Company and its results of operation for the periods specified therein; and
(g) such other information relating to the financial condition, business, prospects, or corporate affairs of the Company or any of its subsidiaries or tax reporting or obligations of the Company or any of the Company’s subsidiaries as any Major Investor (which for purposes of this Section 3.1(g) shall include any Affiliate or limited partner of 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 (A) that the Company reasonably determines in good faith to be a trade secret or similar highly confidential information (unless covered by an enforceable confidentiality agreement, in form acceptable to the Company) or (B) 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 thirty (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 (Spero Therapeutics, Inc.), Investors’ Rights Agreement (Spero Therapeutics, Inc.)
Delivery of Financial Statements. So long as a Founder (and/or her applicable Founder Group) hold at least 10,000 shares of Class A Common Stock (subject to appropriate adjustment in the event of any stock dividend, stock split, combination or other similar recapitalization with respect to the Class A Common Stock), the Corporation The Company shall deliver to each Major Investor, provided that the Board of Directors has not reasonably determined that such StockholdersMajor Investor is a Competitor of the Company:
7.1.1 (a) as soon as practicable, but in any event within one hundred twenty thirty-five (120135) days after the end of each fiscal year of the Corporation, its 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, and (iii) a statement of Stockholdersstockholders’ equity as of the end of such year, all such financial statements prepared in accordance with GAAP, audited and certified by independent public accountants of nationally or regionally recognized standing selected by the CorporationCompany;
7.1.2 (b) as soon as practicable, but in any event within forty-five thirty (4530) days after the end of each of the first three (3) quarters of each fiscal year of the CorporationCompany, unaudited statements of income and cash flows for such fiscal quarter, and a comparison between (x) the actual amounts as of and for such fiscal quarter and (y) the comparable amounts as included in the Budget (as defined in Subsection 3.1(e)) for such quarter, and an unaudited balance sheet and a statement of stockholders’ equity as of the end of such fiscal quarter, all prepared in accordance with GAAP (except that such financial statements may (i) be subject to normal year-end audit adjustments; and (ii) not contain all notes thereto that may be required in accordance with GAAP);
7.1.3 (c) as soon as practicable, but in any event within forty-five thirty (4530) days after the end of each of the first three (3) quarters quarter of each fiscal year of the CorporationCompany, 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 equity compensation awards stock options and equity compensation awards stock options not yet issued but reserved for issuance, if any, all in sufficient detail as to permit the Stockholder Major Investors to calculate its their respective percentage equity ownership in the CorporationCompany, and certified by the chief financial officer or chief executive officer of the Corporation Company as being true, complete, and correct; andprovided, however, that no delivery needs to be made under this Section 3.1(c) for as long as the Major Investor has access to the Company’s capitalization table on Carta or another similar electronic capitalization table management platform that shows the information set forth in this Section 3.1(c);
7.1.4 (d) as soon as practicable, but in any event within thirty (30) days of the end of each month, an unaudited income statement and statement of cash flows for such month, and a comparison between (x) the actual amounts as of and for such month and (y) the comparable amounts as included in the Budget (as defined in Subsection 3.1(e)) for such month, and an unaudited balance sheet and statement of stockholders’ equity as of the end of such month, all prepared in accordance with GAAP (except that such financial statements may (i) be subject to normal year-end audit adjustments and (ii) not contain all notes thereto that may be required in accordance with GAAP); and
(e) as soon as practicable, but in any event thirty (30) days before the end of each fiscal year, a budget and business plan for the next fiscal year (collectively, the “Budget”), approved by the Board of Directors (including all of the Preferred Directors) and prepared on a 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) as soon as practicable, but in any event within twenty-five (25) days after the end of each quarter of each fiscal year of the Company, such other information relating to the financial condition, business, scientific developments, prospects, and corporate affairs of the Company as any Major Investor may from time to time reasonably request; provided, however, that the Company shall not be obligated under this Subsection 3.1 to provide information (i) that the Company reasonably determines in good faith to be a trade secret or confidential information (unless covered by an enforceable confidentiality agreement, in a form acceptable to the Company); or (ii) the disclosure of which would adversely affect the attorney-client privilege between the Company and its counsel. If, for any period, the Company has any subsidiary whose accounts are consolidated with those of the Company, then in respect of such period the financial statements delivered pursuant to the foregoing sections shall be the consolidated and consolidating financial statements of the Company and all such consolidated subsidiaries. Notwithstanding anything else in this Subsection 3.1 to the contrary, the Company may cease providing the information set forth in this Subsection 3.1 during the period starting with the date forty-five (45) days before the Company’s good-faith estimate of the date of filing of a registration statement if it reasonably concludes it must do so to comply with the SEC rules applicable to such registration statement and related offering; provided that the Company’s covenants under this Subsection 3.1 shall be reinstated at such time as the Company is no longer actively employing its commercially reasonable efforts to cause such registration statement to become effective.
Appears in 2 contracts
Sources: Investors’ Rights Agreement (Immuneering Corp), Investors’ Rights Agreement (Immuneering Corp)
Delivery of Financial Statements. So long as a Founder (and/or her applicable Founder Group) hold at least 10,000 shares of Class A Common Stock (subject to appropriate adjustment in the event of any stock dividend, stock split, combination or other similar recapitalization with respect to the Class A Common Stock), the Corporation The Company shall deliver to such Stockholderseach Major Investor:
7.1.1 (a) as soon as practicable, but in any event within one hundred twenty eighty (120180) days after the end of each fiscal year of the CorporationCompany, its (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, 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 Stockholdersstockholders’ equity as of the end of such year, all such financial statements prepared in accordance with GAAP, audited and certified by independent public accountants of nationally recognized standing selected by the CorporationCompany and approved by the Board of Directors, which approval shall include the approval of the Preferred Directors;
7.1.2 (b) as soon as practicable, but in any event within forty-five thirty (4530) days after the end of each of the first three (3) quarters quarter of each fiscal year of the CorporationCompany, unaudited statements of income and of cash flows for such fiscal quarter, and an unaudited balance sheet as of the end of such fiscal quarter, all prepared in accordance with GAAP (except that such financial statements may (i) be subject to normal year-end audit adjustments; adjustments and (ii) not contain all notes thereto that may be required in accordance with GAAP);
7.1.3 (c) as soon as practicable, but in any event within forty-five thirty (4530) days after the end of each of the first three (3) quarters quarter of each fiscal year of the CorporationCompany, 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 equity compensation awards stock options and equity compensation awards stock options not yet issued but reserved for issuance, if any, all in sufficient detail as to permit the Stockholder Major Investors to calculate its their respective percentage equity ownership in the CorporationCompany, and certified by the chief financial officer or chief executive officer of the Corporation Company as being true, complete, and correct; and;
7.1.4 (d) as soon as practicable, but in any event within thirty (30) days of the end of each month, an unaudited income statement for such month, and an unaudited balance sheet as of the end of such month, all prepared in accordance with GAAP (except that such financial statements may (i) be subject to normal year-end audit adjustments and (ii) not contain all notes thereto that may be required in accordance with GAAP);
(e) as soon as practicable, but in any event thirty (30) days before the end of each fiscal year, a budget and business plan for the next fiscal year (collectively, the “Budget”), approved by the Board of Directors and prepared on a monthly 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; 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 at any time during the period starting with the date sixty (60) days before the Company’s good-faith estimate of the date of filing of a registration statement if it reasonably concludes it must do so to comply with the SEC rules applicable to such registration statement and related offering; provided that the Company’s covenants under this Section 3.1 shall be reinstated at such time as the Company is no longer actively employing its commercially reasonable efforts to cause such registration statement to become effective.
Appears in 2 contracts
Sources: Investors’ Rights Agreement (Eleven Biotherapeutics, Inc.), Investors’ Rights Agreement (Eleven Biotherapeutics, Inc.)
Delivery of Financial Statements. So long as a Founder (and/or her applicable Founder Group) hold at least 10,000 shares of Class A Common Stock (subject to appropriate adjustment in the event of any stock dividend, stock split, combination or other similar recapitalization with respect to the Class A Common Stock), the Corporation The Company shall deliver to each Major Investor the required items listed below, provided that the Board of Directors has not reasonably determined that such Stockholders:Major Investor is a Competitor of the Company.
7.1.1 (a) as soon as practicable, but in any event within one hundred twenty ninety (12090) days after the end of each fiscal year of the CorporationCompany, its (i) balance sheet as of the end of such year, (ii) unaudited statements of income and of cash flows for such fiscal year, and (iii) an unaudited balance sheet and a statement of Stockholdersstockholders’ equity as of the end of such fiscal year, all such financial statements prepared in accordance with GAAP, audited and certified by independent public accountants of nationally recognized standing selected by the Corporation;
7.1.2 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 Corporation, unaudited statements of income and cash flows for such fiscal quarter, and an unaudited balance sheet as of the end of such fiscal quarter, all prepared in accordance with GAAP (except that such financial statements may (i) be subject to normal year-end audit adjustments; and (ii) not contain all notes thereto that may be required in accordance with GAAP);
7.1.3 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 Corporation, a statement showing the number of shares of each class of capital stock outstanding at the end of the period, and the number of shares of issued equity compensation awards and equity compensation awards not yet issued but reserved for issuance, if any, all in sufficient detail as to permit the Stockholder to calculate its percentage equity ownership in the Corporation, and certified by the chief financial officer or chief executive officer of the Corporation as being true, complete, and correct; and
7.1.4 as soon as practicable, but in any event within thirty (30) days of the end of each month, an unaudited income statement for such month, and an unaudited balance sheet as of the end of such month, all prepared in accordance with GAAP (except that such financial statements may (i) be subject to normal year-end audit adjustments and (ii) not contain all notes thereto that may be required in accordance with GAAP);
(b) as soon as practicable, but in any event within one hundred twenty (120) days after the end of each fiscal year of the Company beginning with the fiscal year ended December 31, 2019, (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 a schedule as to the sources and applications of funds for such year, and (iii) a statement of stockholders’ equity as of the end of such year, all such financial statements audited and certified by independent public accountants of nationally or regionally recognized standing selected by the Company and approved by the Board of Directors;
(c) 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, unaudited statements of income and of cash flows for such fiscal quarter, and an unaudited balance sheet and a statement of stockholders’ equity as of the end of such fiscal quarter, all prepared in accordance with GAAP (except that such financial statements may (i) be subject to normal year-end audit adjustments and (ii) not contain all notes thereto that may be required in accordance with GAAP);
(d) 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 each Major Investor 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 within thirty (30) days following the end of each fiscal year, a budget and business plan for the next fiscal year (collectively, the “Budget”), approved by the Board of Directors and, 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; 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 similarly confidential information (unless covered by an enforceable confidentiality agreement, in a form acceptable to the Company); or (ii) the disclosure of which would adversely affect the attorney-client privilege between the Company and its counsel. If, for any period, the Company has any subsidiary whose accounts are consolidated with those of the Company, then in respect of such period the financial statements delivered pursuant to the foregoing sections shall be the consolidated and consolidating financial statements of the Company and all such consolidated subsidiaries. Notwithstanding anything else in this 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 thirty (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 (Maze Therapeutics, Inc.), Investors’ Rights Agreement (Maze Therapeutics, Inc.)
Delivery of Financial Statements. So long as a Founder (and/or her applicable Founder Group) hold at least 10,000 shares of Class A Common Stock (subject to appropriate adjustment in the event of any stock dividend, stock split, combination or other similar recapitalization with respect to the Class A Common Stock), the Corporation The Company shall deliver to such Stockholdersthe following:
7.1.1 (a) to each Investor, as soon as practicable, but in any event within one hundred twenty ninety (12090) days after the end of each fiscal year of the CorporationCompany, its (i) an income statement for such fiscal year, a balance sheet as of the end of such year, (ii) statements of income Company and of cash flows for such year, and (iii) 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 recognized standing selected by the CorporationCompany;
7.1.2 (b) 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 CorporationCompany, an unaudited statements income statement, statement of income and cash flows for such fiscal quarter, quarter and an unaudited balance sheet as of the end of such fiscal quarter.
(c) to each Major Investor, all prepared in accordance with GAAP (except that such financial statements may (i) be subject to normal year-end audit adjustments; and (ii) not contain all notes thereto that may be required in accordance with GAAP);
7.1.3 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 Corporation, a statement showing the number of shares of each class of capital stock outstanding at the end of the period, and the number of shares of issued equity compensation awards and equity compensation awards not yet issued but reserved for issuance, if any, all in sufficient detail as to permit the Stockholder to calculate its percentage equity ownership in the Corporation, and certified by the chief financial officer or chief executive officer of the Corporation as being true, complete, and correct; and
7.1.4 as soon as practicable, but in any event within thirty (30) days of the end of each month, an unaudited income statement for such month, and an unaudited statement of cash flows and balance sheet for and as of the end of such month, all 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 and statements of cash flows for such months and, as soon as prepared, any other budgets or revised budgets prepared by the Company;
(e) to each Major Investor, using its best efforts within twenty-four (24) hours of such event, a notice via facsimile sent to such person designated to obtain such notices,
(i) that the Company has filed a registration statement under the Securities Act for purposes of a public offering of securities of the Company;
(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 to the financial statements called for in subsections (b) and (c) of this Section 2.2, an instrument executed by the Chief Financial Officer or President of the Company certifying that such financials were prepared in accordance with GAAP consistently applied with prior practice for earlier periods (except with the exception of footnotes that such may be required by GAAP) and fairly present the financial statements may (i) be condition of the Company and its results of operation for the period specified, subject to normal year-end audit adjustments and adjustment; and
(iig) 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 request, provided, however, that the Company shall not contain all notes thereto be obligated under this subsection (g) or any other subsection of Section 2.1 to provide information that may it deems in good faith to be required in accordance with GAAP)a 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. So long as a Founder (and/or her applicable Founder Group) hold at least 10,000 shares of Class A Common Stock (subject to appropriate adjustment in the event of any stock dividend, stock split, combination or other similar recapitalization with respect to the Class A Common Stock), the Corporation The Company shall deliver to each Major Investor, provided that the Board of Directors has not reasonably determined that such StockholdersMajor Investor is a Competitor of the Company:
7.1.1 (a) as soon as practicable, but in any event within one one-hundred and twenty (120) days after the end of each fiscal year of the Corporation, its 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 Stockholdersstockholders’ equity as of the end of such year, all such financial statements prepared in accordance with GAAP, audited and certified by independent public accountants 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 selected by standing; or (B) such accountants are the Corporation;Company’s existing independent public accountants as of the date hereof.
7.1.2 (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 CorporationCompany, 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 (i) be subject to normal year-end audit adjustments; and (ii) not contain all notes thereto that may be required in accordance with GAAP);
7.1.3 (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 CorporationCompany, 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 equity compensation awards stock options and equity compensation awards stock options not yet issued but reserved for issuance, if any, all in sufficient detail as to permit the Stockholder Major Investors to calculate its their respective percentage equity ownership in the CorporationCompany, and certified by the chief financial officer or chief executive officer of the Corporation Company as being true, complete, and correct; and;
7.1.4 (d) as soon as practicable, but in any event within thirty forty-five (3045) 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) before the end of each fiscal year, a budget and business plan for the next fiscal year 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 (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 its counsel. If, for any period, the Company has any subsidiary whose accounts are consolidated with those of the Company, then in respect of such period the financial statements delivered pursuant to the foregoing sections shall be the consolidated and consolidating financial statements of the Company and all such consolidated subsidiaries. Notwithstanding anything else in this Subsection 3.1 to the contrary, the Company may cease providing the information set forth in this Subsection 3.1 during the period starting with the date forty-five (45) days before the Company’s good-faith estimate of the date of filing of a registration statement if it reasonably concludes it must do so to comply with the SEC rules applicable to such registration statement and related offering; provided that the Company’s covenants under this Subsection 3.1 shall be reinstated at such time as the Company is no longer actively employing its commercially reasonable efforts to cause such registration statement to become effective.
Appears in 2 contracts
Sources: Investors’ Rights Agreement (Pattern Group Inc.), Investors’ Rights Agreement (Pattern Group Inc.)
Delivery of Financial Statements. So long as a Founder (and/or her applicable Founder Group) hold at least 10,000 shares of Class A Common Stock (subject to appropriate adjustment in the event of any stock dividend, stock split, combination or other similar recapitalization with respect to the Class A Common Stock), the Corporation The Company shall deliver to such StockholdersValiant (for so long as Valiant continues to own the Minimum Holding), Fidelity (for so long as Fidelity owns any shares of Registrable Securities), Palma (for so long as Palma owns at least 50% of the total number of shares of Series F Stock that Palma purchased pursuant to the Series F Preferred Stock Purchase Agreement by and among the Company, Palma and the other parties listed therein, dated May 15, 2014 (the “Series F Purchase Agreement”), Sycamore (for so long as Sycamore owns at least 50% of the total number of shares of Series H Stock that Sycamore purchased pursuant to the Purchase Agreement) and to each Major Investor:
7.1.1 (a) as soon as practicable, but in any event within one hundred twenty (120) days after the end of each fiscal year of the CorporationCompany, its (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(d)) for such year, with an explanation of any material differences between such amounts and a schedule as to the sources and applications of funds for such year, and (iii) a statement of Stockholdersstockholders’ equity as of the end of such year, all such financial statements prepared in accordance with GAAP, to be audited and certified by independent public accountants of nationally recognized standing selected by the CorporationCompany and reasonably acceptable to the holders of at least sixty percent (60%) of the Preferred Stock held by the Major Investors (voting together as a single class and not as a separate series, and on an as-converted basis);
7.1.2 (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 CorporationCompany, unaudited statements of income and of cash flows for such fiscal quarter, and an unaudited balance sheet and a statement of stockholders’ equity as of the end of such fiscal quarter, all prepared in accordance with GAAP (except that such financial statements may (i) be subject to normal year-end audit adjustments; adjustments and (ii) not contain all notes thereto that may be required in accordance with GAAP);
7.1.3 (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 CorporationCompany, 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 equity compensation awards stock options and equity compensation awards stock options not yet issued but reserved for issuance, if any, all in sufficient detail as to permit the Stockholder Major Investors, Palma, Sycamore and Fidelity to calculate its their respective percentage equity ownership in the CorporationCompany, and certified by the chief financial officer or chief executive officer of the Corporation Company as being true, complete, and correct; and
7.1.4 (d) as soon as practicable, but in any event within thirty (30) days of before the end of each monthfiscal year, an unaudited a budget and business plan for the next fiscal year (collectively, the “Budget”), approved by the Board of Directors and prepared on a monthly basis, including balance sheets, income statement statements, and statements of cash flow for such monthmonths and, and an unaudited balance sheet as promptly after prepared, any other budgets or revised budgets prepared by the Company. If, for any period, the Company has any subsidiary whose accounts are consolidated with those of the end Company, then in respect of such month, all prepared in accordance with GAAP (except that 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 (i60) 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 subject reinstated at such time as the Company is no longer actively employing its commercially reasonable efforts to normal year-end audit adjustments and (ii) not contain all notes thereto that may be required in accordance with GAAP)cause such registration statement to become effective.
Appears in 2 contracts
Sources: Investor Rights Agreement, Investor Rights Agreement (Pinterest, Inc.)
Delivery of Financial Statements. So long as a Founder (and/or her applicable Founder Group) hold at least 10,000 shares of Class A Common Stock (subject to appropriate adjustment in the event of any stock dividend, stock split, combination or other similar recapitalization with respect to the Class A Common Stock), the Corporation The Company shall deliver to such Stockholderseach Major Investor:
7.1.1 (a) as soon as practicable, but in any event within one hundred twenty (120) days after the end of each fiscal year of the CorporationCompany, its (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 a schedule as to the sources and applications of funds for such year, and (iii) a statement of Stockholdersstockholders’ equity as of the end of such year, all such financial statements prepared in accordance with GAAP, audited and certified by independent public accountants of nationally or regionally recognized standing selected by the CorporationCompany;
7.1.2 (b) as soon as practicable, but in any event within forty-five thirty (4530) days after the end of each of the first three (3) quarters quarter of each fiscal year of the CorporationCompany, unaudited statements of income and of cash flows for such fiscal quarter, and an unaudited balance sheet and a statement of stockholders’ equity as of the end of such fiscal quarter, all prepared in accordance with GAAP (except that such financial statements may (i) be subject to normal year-end audit adjustments; adjustments and (ii) not contain all notes thereto that may be required in accordance with GAAP);
7.1.3 as soon as practicable, but in any event within forty-five (45c) days after the end of each of the first three (3) quarters of each fiscal year of the Corporation, a statement showing the number of shares of each class of capital stock outstanding at the end of the period, and the number of shares of issued equity compensation awards and equity compensation awards not yet issued but reserved for issuance, if any, all in sufficient detail as to permit the Stockholder to calculate its percentage equity ownership in the Corporation, and certified by the chief financial officer or chief executive officer of the Corporation as being true, complete, and correct; and
7.1.4 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 no later than thirty (30) days prior to the beginning of each fiscal year, a budget and business plan for the next fiscal year (collectively, the “Budget”), approved by the Board of Directors in accordance with Section 5.4, including the majority 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; and
(e) such other information relating to the financial condition, business, prospects, or corporate affairs of the Company as any Major Investor may from time to time reasonably request; provided, however, that the Company shall not be obligated under this Subsection 3.1 to provide information (i) that the Company reasonably determines in good faith to be a trade secret or confidential information (unless covered by an enforceable confidentiality agreement, in a form acceptable to the Company); or (ii) the disclosure of which would adversely affect the attorney-client privilege between the Company and its counsel. If, for any period, the Company has any subsidiary whose accounts are consolidated with those of the Company, then in respect of such period the financial statements delivered pursuant to the foregoing sections shall be the consolidated and consolidating financial statements of the Company and all such consolidated subsidiaries. Notwithstanding anything else in this 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, Investors’ Rights Agreement (Frequency Therapeutics, Inc.)
Delivery of Financial Statements. So long as a Founder (and/or her applicable Founder Group) hold at least 10,000 shares of Class A Common Stock (subject to appropriate adjustment in the event of any stock dividend, stock split, combination or other similar recapitalization with respect to the Class A Common Stock), the Corporation The Company shall deliver to such Stockholderseach Major Investor:
7.1.1 (i) as soon as practicable, but in any event within one hundred twenty (120) days after the end of each fiscal year of the CorporationCompany, its (i) an audited balance sheet as of the end of such year, (ii) statements an audited statement of income and of cash flows for such year, and (iii) a statement of Stockholdersstockholders’ equity as of the end of such year, all such financial statements prepared in accordance with GAAP, audited and certified by independent public accountants of nationally recognized standing selected by the Corporation;
7.1.2 (ii) as soon as practicable, but in any event within forty-five (45) days after the end of each of the first three four (34) quarters of each fiscal year of the CorporationCompany, unaudited statements of income and of cash flows for such fiscal quarter, and an unaudited balance sheet and a statement of stockholders’ equity as of the end of such fiscal quarter, all prepared in accordance with GAAP (except that such financial statements may (i) be subject to normal year-end audit adjustments; and (ii) not contain all notes thereto that may be required in accordance with GAAP);
7.1.3 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 Corporation, a statement showing the number of shares of each class of capital stock outstanding at the end of the period, and the number of shares of issued equity compensation awards and equity compensation awards not yet issued but reserved for issuance, if any, all in sufficient detail as to permit the Stockholder to calculate its percentage equity ownership in the Corporation, and certified by the chief financial officer or chief executive officer of the Corporation as being true, complete, and correct; and
7.1.4 as soon as practicable, but in any event within thirty (30) days of the end of each month, an unaudited income statement for such month, and an unaudited balance sheet as of the end of such month, all prepared in accordance with GAAP (except that such financial statements may (i) be subject to normal year-end audit adjustments and (ii) not contain all notes thereto that may be required in accordance with GAAP);
(iii) 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;
(iv) as soon as practicable, but in any event no later than February 15 following the end of each fiscal year, a budget and business plan for the next fiscal year (collectively, the “Budget”), approved by a majority of 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;
(v) 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 (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 thirty (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 (On Deck Capital Inc), Investors’ Rights Agreement (On Deck Capital Inc)
Delivery of Financial Statements. So long as a Founder (and/or her applicable Founder Group) hold at least 10,000 shares of Class A Common Stock (subject to appropriate adjustment in the event of any stock dividend, stock split, combination or other similar recapitalization with respect to the Class A Common Stock), the Corporation The Company shall deliver to such Stockholderseach Major Investor:
7.1.1 (a) as soon as practicable, but in any event within one hundred and twenty (120) days after the end of each fiscal year of the CorporationCompany, its (i) an audited consolidated balance sheet as of the end of such year, (ii) audited consolidated statements of income and of cash flows for such year, and a comparison between (1) the actual amounts as of and for such fiscal year and (2) the comparable amounts for the prior year and as included in the Annual 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 Stockholdersstockholders’ equity as of the end of such year, all such consolidated financial statements prepared in accordance with GAAP, shall be audited and certified by independent public accountants of nationally recognized standing selected by the CorporationCompany (notwithstanding the foregoing, the requirement that such balance sheet, income statement and cash flow be audited or prepared in accordance with GAAP may be waived by the Board including at least one of the Preferred Directors);
7.1.2 (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 CorporationCompany, unaudited consolidated statements of income and of cash flows for such fiscal quarter, and an unaudited consolidated balance sheet and a statement of stockholders’ equity as of the end of such fiscal quarter, all prepared in accordance with GAAP (except that such financial statements may (i) be subject to normal year-end audit adjustments; and (ii) not contain all notes thereto that may be required in accordance with GAAP);
7.1.3 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 Corporation, a statement showing the number of shares of each class of capital stock outstanding at the end of the period, and the number of shares of issued equity compensation awards and equity compensation awards not yet issued but reserved for issuance, if any, all in sufficient detail as to permit the Stockholder to calculate its percentage equity ownership in the Corporation, and certified by the chief financial officer or chief executive officer of the Corporation as being true, complete, and correct; and
7.1.4 as soon as practicable, but in any event within thirty (30) days of the end of each month, an unaudited income statement for such month, and an unaudited balance sheet as of the end of such month, all prepared in accordance with GAAP (except that such financial statements may (i) be subject to normal year-end audit adjustments and (ii) not contain all notes thereto that may be required in accordance with GAAP).;
(c) within fifteen (15) days of a written request by a Major Investor, a statement showing the number of shares of each class and series of capital stock and securities convertible into or exercisable for shares of capital stock outstanding at the end of the period, the Common Stock issuable upon conversion or exercise of any outstanding securities convertible or exercisable for Common Stock and the exchange ratio or exercise price applicable thereto, and the number of shares of issued stock options and stock options not yet issued but reserved for issuance, if any, all in sufficient detail as to permit 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 consolidated income statement and statement of cash flows for such month, and an unaudited consolidated balance sheet and statement of stockholders’ equity as of the end of such month, all prepared in accordance with GAAP (except that such financial statements may (i) be subject to normal year-end audit adjustments, (ii) not contain all notes thereto that may be required in accordance with GAAP and (iii) the requirement that such consolidated income statement, statement of cash flows and balance sheet be prepared in accordance with GAAP may be waived by the Board including at least one of the Preferred Directors);
(e) as soon as practicable, but in any event thirty (30) days before the end of each fiscal year, a budget and business plan for the next fiscal year (collectively, the
Appears in 2 contracts
Sources: Investors’ Rights Agreement (Sprinklr, Inc.), Investors’ Rights Agreement (Sprinklr, Inc.)
Delivery of Financial Statements. So long as a Founder (and/or her applicable Founder Group) hold The Company shall deliver to each Investor that, individually or together with such Investor’s Affiliates, holds at least 10,000 72,993 shares of Class Series A Common Preferred Stock or 22,172 shares of Series B Preferred Stock (subject to appropriate adjustment in the event of each as adjusted for any stock dividendsplit, stock splitdividend, combination or other similar recapitalization with respect to or reclassification effected after the Class A Common Stockdate hereof), provided that the Corporation shall deliver to Board has not reasonably determined that such StockholdersInvestor is a Competitor:
7.1.1 (a) as soon as practicable, but in any event within one hundred twenty (120) days after the end of each fiscal year of the Corporation, its 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 Stockholdersstockholders’ equity as of the end of such year, all such financial statements prepared in accordance with GAAP, audited and certified by independent public accountants of nationally recognized standing selected by the Corporation;; and
7.1.2 (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 CorporationCompany, unaudited statements of income and cash flows for such fiscal quarter, and an unaudited balance sheet as of the end of such fiscal quarter, all prepared in accordance with GAAP (except that such financial statements may (i) be subject to normal year-end audit adjustments; and (ii) not contain all notes thereto that may be required in accordance with GAAP);
7.1.3 as soon as practicable. If, but for any period, the Company has any subsidiary whose accounts are consolidated with those of the Company, then in any event within forty-five respect of such period the financial statements delivered pursuant to the foregoing sections shall be the consolidated and consolidating financial statements of the Company and all such consolidated subsidiaries. Notwithstanding anything else in this Subsection 3.1 to the contrary, the Company may cease providing the information set forth in this Subsection 3.1 during the period starting with the date sixty (4560) days after before the end of each Company’s good-faith estimate of the first three (3) quarters date of each fiscal year filing of a registration statement if it reasonably concludes it must do so to comply with the Corporation, a SEC rules applicable to such registration statement showing and related offering; provided that the number of shares of each class of capital stock outstanding Company’s covenants under this Subsection 3.1 shall be reinstated at such time as the end of the period, and the number of shares of issued equity compensation awards and equity compensation awards not yet issued but reserved for issuance, if any, all in sufficient detail as Company is no longer actively employing its commercially reasonable efforts to permit the Stockholder cause such registration statement to calculate its percentage equity ownership in the Corporation, and certified by the chief financial officer or chief executive officer of the Corporation as being true, complete, and correct; and
7.1.4 as soon as practicable, but in any event within thirty (30) days of the end of each month, an unaudited income statement for such month, and an unaudited balance sheet as of the end of such month, all prepared in accordance with GAAP (except that such financial statements may (i) be subject to normal year-end audit adjustments and (ii) not contain all notes thereto that may be required in accordance with GAAP)become effective.
Appears in 2 contracts
Sources: Stockholders Agreement (Alzheon, Inc.), Stockholders Agreement (Alzheon, Inc.)
Delivery of Financial Statements. So long as a Founder (and/or her applicable Founder Group) hold at least 10,000 shares of Class A Common Stock (subject to appropriate adjustment in the event of any stock dividend, stock split, combination or other similar recapitalization with respect to the Class A Common Stock), the Corporation The Company shall deliver to such Stockholderseach Major Investor:
7.1.1 (a) as soon as practicable, but in any event within one hundred twenty (120) days after the end of each fiscal year of the Corporation, its 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 Stockholdersstockholders’ equity as of the end of such year, all such financial statements prepared in accordance with GAAP, audited and certified by independent public accountants of nationally regionally recognized standing selected by the CorporationCompany;
7.1.2 (b) as soon as practicable, but in any event within forty-five thirty (4530) days after the end of each of the first three (3) quarters of each fiscal year of the CorporationCompany, unaudited statements of income and cash flows for such fiscal quarter, and an unaudited balance sheet as of the end of such fiscal quarter, all prepared in accordance with GAAP (except that such financial statements may (i) be subject to normal year-end audit adjustments; and (ii) not contain all notes thereto that may be required in accordance with GAAP);
7.1.3 (c) as soon as practicable, but in any event within forty-five thirty (4530) days after the end of each of the first three (3) quarters quarter of each fiscal year of the CorporationCompany, 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 equity compensation awards stock options and equity compensation awards stock options not yet issued but reserved for issuance, if any, all in sufficient detail as to permit the Stockholder Major Investors to calculate its their respective percentage equity ownership in the Corporation, and certified by the chief financial officer or chief executive officer of the Corporation as being true, complete, and correct; andCompany;
7.1.4 (d) as soon as practicable, but in any event within thirty fifteen (3015) days of the end of each month, an unaudited income statement and statement of cash flows for such month, and an unaudited balance sheet as of the end of such month, all prepared in accordance with GAAP (except that such financial statements may (i) be subject to normal year-end audit adjustments and (ii) not contain all notes thereto that may be required in accordance with GAAP);
(e) as soon as practicable, but in any event thirty (30) days before the end of each fiscal year, a budget and business plan for the next fiscal year (collectively, the “Budget”), approved by the Board of Directors and prepared on a 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; 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, or information 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);. If, for any period, the Company has any subsidiary whose accounts are consolidated with those of the Company, then in respect of such period the financial statements delivered pursuant to the foregoing sections shall be the consolidated and consolidating financial statements of the Company and all such consolidated subsidiaries. Notwithstanding anything else in this Subsection 3.1 to the contrary, the Company may cease providing the information set forth in this Subsection 3.1 during the period starting with the date sixty (60) days before the Company’s good-faith estimate of the date of filing of a registration statement if it reasonably concludes it must do so to comply with the SEC rules applicable to such registration statement and related offering; provided that the Company’s covenants under this Subsection 3.1 shall be reinstated at such time as the Company is no longer actively employing its commercially reasonable efforts to cause such registration statement to become effective.
Appears in 1 contract
Sources: Investors’ Rights Agreement (Monte Rosa Therapeutics, Inc.)
Delivery of Financial Statements. So long as a Founder (and/or her applicable Founder Group) hold at least 10,000 shares of Class A Common Stock (subject to appropriate adjustment in the event of any stock dividend, stock split, combination or other similar recapitalization with respect to the Class A Common Stock), the Corporation The Company shall deliver to each Investor, provided that the Board of Directors has not reasonably determined that such Stockholders:Investor is a competitor of the Company (provided that neither RTW, Perceptive nor their respective Affiliates shall be deemed a competitor of the Company hereunder):
7.1.1 (a) as soon as practicable, but in any event within one hundred twenty (120) days after the end of each fiscal year of the Corporation, its 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 Stockholdersstockholders’ equity as of the end of such year, all such financial statements prepared in accordance with GAAP, audited and certified by independent public accountants of nationally regionally recognized standing selected by the CorporationCompany;
7.1.2 (b) as soon as practicable, but in any event within forty-five (45) days after the end of each of the first three (3) quarters quarter of each fiscal year of the CorporationCompany, 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 (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 a comparison of such quarterly statements against the applicable quarterly portion of the Budget (as defined below) for each such quarter each year;
7.1.3 (c) as soon as practicable, but in any event within forty-five (45) days after the end of each of the first three (3) quarters quarter of each fiscal year of the CorporationCompany, 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 equity compensation awards stock options and equity compensation awards stock options not yet issued but reserved for issuance, if any, all in sufficient detail as to permit the Stockholder Investors to calculate its their respective percentage equity ownership in the CorporationCompany, and certified by the chief financial officer or chief executive officer of the Corporation Company as being true, complete, and correct; and;
7.1.4 (d) as soon as practicable, but in any event within thirty (30) days of the end of each month, an unaudited income statement for such monthcopies of management financial accounts in the form prepared by Company management in the ordinary course of business;
(e) as soon as practicable, and an unaudited balance sheet as of but in any event thirty (30) days before the end of each fiscal year, a budget and business plan for the next fiscal year (collectively, the “Budget”), approved by the Board of Directors in accordance with Section 6.4, and prepared on a monthly basis, including balance sheets, income statements, and statements of cash flow for such monthmonths and, all promptly after prepared, any other budgets or revised budgets prepared by the Company;
(f) with respect to the financial statements called for in Subsection 3.1(a), (b) and (d), an instrument executed by the chief financial officer and chief executive officer of the Company certifying that such financial statements were prepared in accordance with GAAP consistently applied with prior practice for earlier periods (except as otherwise set forth in Subsection 3.1(b) and Subsection 3.1(d)) and fairly present the financial condition of the Company and its results of operation for the periods specified therein; and
(g) 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 such financial statements may 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 subject a trade secret or confidential information (unless covered by an enforceable confidentiality agreement, in a form acceptable to normal year-end audit adjustments and the Company); or (ii) not contain 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 notes thereto such consolidated subsidiaries. Notwithstanding anything else in this Subsection 3.1 to the contrary, the Company may cease providing the information set forth in this Subsection 3.1 during the period starting with the date sixty (60) days before the Company’s good-faith estimate of the date of filing of a registration statement if it reasonably concludes it must do so to comply with the SEC rules applicable to such registration statement and related offering; provided that may the Company’s covenants under this Subsection 3.1 shall be required in accordance with GAAP)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: Investor’s Rights Agreement (Landos Biopharma, Inc.)
Delivery of Financial Statements. So long as a Founder (and/or her applicable Founder Group) hold The Company shall deliver to each Holder who holds at least 10,000 1,000,000 shares of Class A Common Stock Registrable Securities (subject to appropriate adjustment in the event of any for stock dividendsplits, stock splitdividends, combination reclassifications or other similar recapitalization with respect to the Class A Common Stocklike), ▇▇▇▇▇▇▇▇▇ Partners LLC — Series A and Aperture Venture Partners III, L.P. (collectively, the Corporation shall deliver to such Stockholders:“Major Holders”):
7.1.1 (a) as soon as practicable, but in any event within one hundred twenty (120) 150 days after the end of each fiscal year of the CorporationCompany, its (i) an income statement for such fiscal year, a balance sheet as of the end of such year, (ii) statements of income Company and of cash flows for such year, and (iii) 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 selected with the approval of nationally recognized standing selected the Board of Directors, including the approval of at least one of the three directors elected by the CorporationInvestors (each, an “Investor Director”);
7.1.2 (b) as soon as practicable, but in any event within forty-five (45) 45 days after the end of each quarter, an unaudited profit or loss statement, a statement of the first three (3) quarters of each fiscal year of the Corporation, 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 as of the end of such fiscal quarterquarter and a written summary of operations, all each of which has been prepared in accordance with GAAP (except that such financial statements may (i) be GAAP, subject to normal year-end audit adjustments; and (ii) not contain all notes thereto that may be required in accordance with GAAP);
7.1.3 (c) as soon as practicable, but in any event within forty-five (45) 30 days after prior to the end of each of fiscal year, a comprehensive operating budget for the first three (3) quarters of each next fiscal year of forecasting the CorporationCompany’s revenues, expenses and cash position on a statement showing month-to-month basis for the number of shares of each class of capital stock outstanding at the end of the periodupcoming fiscal year, and the number of shares of issued equity compensation awards and equity compensation awards not yet issued but reserved for issuanceand, if anyas soon as prepared, all in sufficient detail as to permit the Stockholder to calculate its percentage equity ownership in the Corporation, and certified any other budgets or revised budgets prepared by the chief financial officer or chief executive officer of the Corporation as being true, complete, and correctCompany; and
7.1.4 as soon as practicable, but in any event within thirty (30d) days of promptly upon request by a Major Holder following the end of each monthfiscal quarter, an unaudited income statement for such monthupdated capitalization table, and an unaudited balance sheet as of certified by 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)Company’s Chief Financial Officer.
Appears in 1 contract
Sources: Investors’ Rights Agreement (Aclaris Therapeutics, Inc.)
Delivery of Financial Statements. So The Company shall deliver to each Holder, so long as a Founder such Holder holds or is deemed to hold (and/or her applicable Founder Groupi) hold at least 10,000 two hundred fifty thousand (250,000) shares of Class A Common Stock Registrable Securities (subject to appropriate adjustment in the event of any for stock dividendsplits, stock splitdividends, combination or combinations and other similar recapitalization recapitalizations) with respect to the Class A Common Stocksubsections (a), the Corporation shall deliver (b) and (d) and (ii) at least one million (1,000,000) shares of Registrable Securities (subject to such Stockholders:appropriate adjustment for stock splits, dividends, combinations and other recapitalizations) with respect to subsection (c) (each, a “Qualifying Investor”):
7.1.1 (a) as soon as practicable, but in any event within one hundred twenty ninety (12090) days after the end of each fiscal year of the CorporationCompany, its (i) an income statement for such fiscal year, a balance sheet as of the end of such year, (ii) statements of income Company and of cash flows for such year, and (iii) statement of Stockholdersshareholders’ equity as of the end of such year, all and a statement of cash flows for such year, such year-end financial statements reports to be prepared in accordance with generally accepted accounting principles (“GAAP”), and audited and certified by independent public accountants of nationally recognized standing selected by the CorporationCompany; along with a management report describing progress, changes, and issues since the end of the last fiscal quarter relating to research and development, business development, intellectual property, and other topics deemed reasonably relevant to the Company;
7.1.2 (b) as soon as practicable, but in any event within forty-five thirty (4530) days after the end of each of the first three (3) quarters of each fiscal year of the CorporationCompany, an unaudited statements profit or loss statement, a statement of income and cash flows for such fiscal quarter, quarter and an unaudited balance sheet as of the end of such fiscal quarter; along with a management report describing progress, all prepared in accordance with GAAP (except that such financial statements may (i) be subject to normal year-end audit adjustments; changes, and (ii) not contain all notes thereto that may be required in accordance with GAAP);
7.1.3 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 Corporation, a statement showing the number of shares of each class of capital stock outstanding at issues since the end of the periodlast fiscal quarter relating to research and development, business development, intellectual property, and other topics deemed reasonably relevant to the number of shares of issued equity compensation awards and equity compensation awards not yet issued but reserved for issuance, if any, all in sufficient detail as to permit the Stockholder to calculate its percentage equity ownership in the Corporation, and certified by the chief financial officer or chief executive officer of the Corporation as being true, complete, and correct; andCompany;
7.1.4 (c) as soon as practicable, but in any event within thirty (30) days of after the end of each month, an unaudited income statement for such month, of cash flows and an unaudited balance sheet statement of cash position; and
(d) as soon as practicable, but in any event no later than thirty days prior to the next fiscal year, an annual operating budget for the next fiscal year as approved by the Board 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)Directors.
Appears in 1 contract
Delivery of Financial Statements. So long as a Founder (and/or her applicable Founder Group) hold at least 10,000 shares of Class A Common Stock (subject to appropriate adjustment in the event of any stock dividend, stock split, combination or other similar recapitalization with respect to the Class A Common Stock), the Corporation The Group Companies shall deliver to such Stockholderseach Major Investor the following documents or reports and deliver to Chuangrui the documents or reports set out in Sections 8.1(i), 8.1(ii), 8.1(iv)(A) and 8.1(v) below:
7.1.1 as soon as practicable, but in any event (i) within one hundred twenty ninety (12090) days after the end of each fiscal year of the CorporationCompany, its (i) a consolidated income statement and statement of cash flows for the Company for such fiscal year and a consolidated balance sheet for the Company as of the end of such the fiscal year, (ii) statements of income and of cash flows for such year, and (iii) statement of Stockholders’ equity as of the end of such year, all such financial statements prepared in accordance with GAAP, audited and certified by a Big-Four Firm or another internationally reputable firm of independent certified public accountants approved by at least two Investor Directors, and a management report including a comparison of nationally recognized standing selected the financial results of such fiscal year with the corresponding annual budget approved by at least two-thirds of the Corporationdirectors of the Board of Directors, all prepared in English and in accordance with the Accounting Standards consistently applied throughout the period;
7.1.2 as soon as practicable, but in any event (ii) within forty-five thirty (4530) days after the end of each of the first three (3) quarters of each fiscal year of the CorporationCompany, unaudited statements of income the management accounts (balance sheet, profit and cash flows for such fiscal quarterloss statement, and an unaudited balance sheet as statement of cash flows) 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; Group and (ii) not contain all notes thereto that may be required in accordance with GAAP)each Group Company;
7.1.3 as soon as practicable, but in any event within forty-five (45iii) days after the end of each of the first three (3) quarters of each fiscal year of the Corporation, a statement showing the number of shares of each class of capital stock outstanding at the end of the period, and the number of shares of issued equity compensation awards and equity compensation awards not yet issued but reserved for issuance, if any, all in sufficient detail as to permit the Stockholder to calculate its percentage equity ownership in the Corporation, and certified by the chief financial officer or chief executive officer of the Corporation as being true, complete, and correct; and
7.1.4 as soon as practicable, but in any event within thirty (30) days of the end of each month, an (A) a consolidated unaudited income statement and statement of cash flows for such month, month and an unaudited a consolidated balance sheet for the Company as of the end of such month, all prepared and a comparison of the financial results of such month with the corresponding monthly budget, in accordance with GAAP the Accounting Standards consistently applied throughout the period (except that such financial statements may (i) be subject to normal for customary year-end audit adjustments and except for the absence of notes), and certified by the chief financial officer of the Company; and (iiB) all the customer transaction data of each Group Company extracted from the Group Companies’ CRM system Hong Mai, including but not contain limited to treatment date, treatment price, transaction amount, price discount, segment, treatment type and detailed description;
(iv) within thirty (30) days of the end of each quarter, (A) the financial statements (balance sheet, profit and loss statement, and statement of cash flows) of each Group Company; (B) the operating data of the Group and each Group Company, including commission cost paid to channel partners (i.e. beauty salons), breakdown of cost of goods sold, breakdown of selling, general and administrative expenses; (C) the loan agreements of all notes thereto that may outstanding loans, each of which shall include outstanding balance, interest rate, tenor and amortization schedule, collateral information, loan covenants and other information reasonably requested by such Major Investor;
(v) an annual budget and strategic plan for the Group Companies approved by at least two-thirds of the directors of the Board of Directors within thirty (30) days prior to the beginning of each fiscal year, setting forth: the projected balance sheets, income statements and statements of cash flows for each month during such fiscal year of each Group Company; projected detailed budgets for each such month; any dividend or distribution projected to be required in accordance declared or paid; the projected incurrence, assumption or refinancing of indebtedness; and all other material matters relating to the operation, development and business of the Group Companies;
(vi) copies of all documents or other information sent to all other shareholders and any reports publicly filed by the Company with GAAP)any relevant securities exchange, regulatory authority or governmental agency, no later than five (5) days after such documents or information are filed by the Company;
(vii) capitalization table of the Group Companies, certified by the chief executive officer of the Company as being true, correct and complete, no later than five (5) days after the end of each fiscal quarter; and
(viii) as soon as practicable, any other information reasonably requested by any such holder of Preferred Shares.
Appears in 1 contract
Sources: Shareholder Agreement (Aesthetic Medical International Holdings Group LTD)
Delivery of Financial Statements. So long as a Founder The Company shall, upon request, deliver to each Investor (and/or her applicable Founder Groupor transferee of an Investor) hold that (individually or collectively with its Affiliates) holds at least 10,000 500,000 shares of Class A Common Stock Registrable Securities (subject to appropriate adjustment in the event of appropriately adjusted for any stock split, dividend, stock split, combination or other similar recapitalization with respect to the Class A Common Stock)recapitalization) (each, the Corporation shall deliver to such Stockholders:a “Major Investor”):
7.1.1 (a) as soon as practicable, but in any event within one hundred twenty ninety (12090) days after the end of each fiscal year of the CorporationCompany, its (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 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 Stockholdersstockholders’ equity as of the end of such year, all such financial statements prepared in accordance with GAAP, audited and certified by independent public accountants of nationally recognized standing selected by the CorporationCompany;
7.1.2 (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 CorporationCompany, unaudited statements of income and of cash flows for such fiscal quarter, and an unaudited balance sheet and a statement of stockholders’ equity as of the end of such fiscal quarter, all prepared in accordance with GAAP (except that such financial statements may (i) be subject to normal year-end audit adjustments; and (ii) not contain all notes thereto that may be required in accordance with GAAP);
7.1.3 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 Corporation, a statement showing the number of shares of each class of capital stock outstanding at the end of the period, and the number of shares of issued equity compensation awards and equity compensation awards not yet issued but reserved for issuance, if any, all in sufficient detail as to permit the Stockholder to calculate its percentage equity ownership in the Corporation, and certified by the chief financial officer or chief executive officer of the Corporation as being true, complete, and correct; and
7.1.4 as soon as practicable, but in any event within thirty (30) days of the end of each month, an unaudited income statement for such month, and an unaudited balance sheet as of the end of such month, all prepared in accordance with GAAP (except that such financial statements may (i) be subject to normal year-end audit adjustments and (ii) not contain all notes thereto that may be required in accordance with GAAP);
(c) as soon as practicable, but in any event within the earlier of (i) thirty (30) days of the end of each month and (ii) ten (10) days following each meeting of the Board in any given 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 (1) be subject to normal year-end audit adjustments and (2) 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 after the end of each fiscal year, a budget and business plan for the next fiscal year, 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 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, (ii) the disclosure of which would adversely affect the attorney-client privilege between the Company and its counsel, or (iii) the disclosure of which could violate applicable antitrust laws.
(f) 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 2.1 to the contrary, the Company may cease providing the information set forth in this Section 2.1 during the period starting with the date thirty (30) days before the Company’s good-faith estimate of the date of submission or filing of a registration statement if it reasonably concludes it must do so to comply with the SEC rules applicable to such registration statement and related offering; provided that the Company’s covenants under this Section 2.1 shall be reinstated at such time as the Company is no longer actively employing its commercially reasonable efforts to cause such registration statement to become effective.
Appears in 1 contract
Delivery of Financial Statements. So long as a Founder (and/or her applicable Founder Group) hold at least 10,000 shares of Class A Common Stock (subject to appropriate adjustment in the event of any stock dividend, stock split, combination or other similar recapitalization with respect to the Class A Common Stock), the Corporation The Company shall deliver to each Major Investor, provided that the Board of Directors has not reasonably determined that such StockholdersMajor Investor is a Competitor:
7.1.1 (a) as soon as practicable, but in any event within one hundred twenty eighty (120180) days after the end of each fiscal year of the Corporation, its 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 Stockholdersstockholders’ equity as of the end of such year, all such financial statements prepared in accordance with GAAP, audited and certified by independent public accountants of nationally regionally recognized standing selected by the CorporationCompany;
7.1.2 (b) as soon as practicable, but in any event within ninety (90) days after the end of each fiscal year of the Company (i) an unaudited balance sheet as of the end of such year, (ii) unaudited statements of income and of cash flows for such year, and 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 CorporationCompany, 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 (i) be subject to normal year-end audit adjustments; and (ii) not contain all notes thereto that may be required in accordance with GAAP);
7.1.3 (d) as soon as practicable, but in any event within forty-five (45) days after the end of each of the first three (3) quarters quarter of each fiscal year of the CorporationCompany, 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 equity compensation awards stock options and equity compensation awards stock options not yet issued but reserved for issuance, if any, all in sufficient detail as to permit the Stockholder Major Investors to calculate its their respective percentage equity ownership in the CorporationCompany, and certified by the chief financial officer or chief executive officer of the Corporation Company as being true, complete, and correct; and;
7.1.4 (e) as soon as practicable, but in any event within thirty (30) days of before the end of each monthfiscal year, an unaudited a budget and business plan for the next fiscal year (collectively, the “Budget”), approved by the Board of Directors (including the Preferred Directors) and prepared on a monthly basis, including balance sheets, income statement statements, and statements of cash flow for such monthmonths and, and an unaudited balance sheet as 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 end of such monthCompany as any Major Investor may from time to time reasonably request; provided, all prepared in accordance with GAAP (except however, that such financial statements may 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 subject a trade secret or confidential information (unless covered by an enforceable confidentiality agreement, in a form acceptable to normal year-end audit adjustments and the Company); or (ii) not contain the disclosure of which could reasonably be expected to 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 notes thereto such consolidated subsidiaries. Notwithstanding anything else in this Subsection 3.1 to the contrary, the Company may cease providing the information set forth in this Subsection 3.1 during the period starting with the date sixty (60) days before the Company’s good-faith estimate of the date of filing of a registration statement if it reasonably concludes it must do so to comply with the SEC rules applicable to such registration statement and related offering; provided that may the Company’s covenants under this Subsection 3.1 shall be required in accordance with GAAP)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. So long as a Founder (and/or her applicable Founder Group) hold at least 10,000 shares of Class A Common Stock (subject to appropriate adjustment in the event of any stock dividend, stock split, combination or other similar recapitalization with respect to the Class A Common Stock), the Corporation The Company shall deliver to each Major Investor, provided that the Board has not reasonably determined that such StockholdersMajor Investor is (or, in the case of a Major Investor that is an individual, is employed by or serves as a consultant to) a competitor of the Company:
7.1.1 (a) as soon as practicable, but in any event within one hundred twenty (120) days after the end of each fiscal year of the CorporationCompany beginning with the fiscal year ending December 31, its 2020 (or such later time as the Board, including the Preferred Director, may determine), (i) a balance sheet as of the end of such year, (ii) statements of income and of cash flows for such year, and a comparison between (x) the actual amounts as of and for such fiscal year and (y) the comparable amounts for the prior year and as included in the Budget (as defined in Subsection 3.1(c)) 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 Stockholdersstockholders’ equity as of the end of such year, all such financial statements prepared in accordance with GAAP, audited and certified by independent public accountants of nationally recognized standing selected by the CorporationCompany and approved by the Board, including the Preferred Director (provided that such audit requirement may be waived by the Board, including the Preferred Director);
7.1.2 (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 CorporationCompany (or such later time as the Board, including the Preferred Director, may determine), unaudited statements of income and of cash flows for such fiscal quarter, and an unaudited balance sheet as of the end of such fiscal quarter, all prepared in accordance with GAAP (except that such financial statements may (i) be subject to normal year-end audit adjustments; and (ii) not contain all notes thereto that may be required in accordance with GAAP);
7.1.3 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 Corporation, a statement showing the number of shares of each class of capital stock outstanding at the end of the period, and the number of shares of issued equity compensation awards and equity compensation awards not yet issued but reserved for issuance, if any, all in sufficient detail as to permit the Stockholder to calculate its percentage equity ownership in the Corporation, and certified by the chief financial officer or chief executive officer of the Corporation as being true, complete, and correct; and
7.1.4 as soon as practicable, but in any event within thirty (30) days of the end of each month, an unaudited income statement for such month, and an unaudited balance sheet as of the end of such month, all prepared in accordance with GAAP (except that such financial statements may (i) be subject to normal year-end audit adjustments and (ii) not contain all notes thereto that may be required in accordance with GAAP); and
(c) as soon as practicable, but in any event within thirty (30) days after the beginning of each fiscal year (or such later time as the Board, including the Preferred Director, may determine), a budget for such fiscal year (collectively, the “Budget”), approved by the Board and prepared on a quarterly basis, including balance sheets, income statements, and statements of cash flow for such months and, promptly after prepared, any other budgets or revised budgets prepared by the Company. If, for any period, the Company has any subsidiary whose accounts are consolidated with those of the Company, then in respect of such period the financial statements delivered pursuant to the foregoing sections shall be the consolidated and consolidating financial statements of the Company and all such consolidated subsidiaries. Notwithstanding anything else in this Subsection 3.1 to the contrary, the Company may cease providing the information set forth in this Subsection 3.1 during the period starting with the date sixty (60) days before the Company’s good-faith estimate of the date of filing of a registration statement if it reasonably concludes it must do so to comply with the SEC rules applicable to such registration statement and related offering; provided that the Company’s covenants under this Subsection 3.1 shall be reinstated at such time as the Company is no longer actively employing its commercially reasonable efforts to cause such registration statement to become effective.
Appears in 1 contract
Sources: Investors’ Rights Agreement (Omega Therapeutics, Inc.)
Delivery of Financial Statements. So long as a Founder (and/or her applicable Founder Groupa) hold at least 10,000 shares of Class A Common Stock (subject to appropriate adjustment in the event of any stock dividend, stock split, combination or other similar recapitalization with respect to the Class A Common Stock), the Corporation The Company shall deliver to such Stockholderseach Investor:
7.1.1 (i) as soon as practicable, but in any event within one hundred twenty (120) 90 days after the end of each fiscal year of the Corporation, its Company (iA) a balance sheet as of the end of such year, (iiB) statements of income and of cash flows for such year, and (iiiC) a statement of Stockholdersstockholders’ equity as of the end of such year, all such financial statements prepared in accordance with GAAP, GAAP and audited and certified by independent public accountants of nationally regionally recognized standing selected by the CorporationCompany;
7.1.2 (ii) as soon as practicable, but in any event within forty-five (45) 45 days after the end of each of the first three (3) quarters quarter of each fiscal year of the CorporationCompany, 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 (iA) be subject to normal year-end audit adjustments; and (iiB) not contain all notes thereto that may be required in accordance with GAAP);
7.1.3 (iii) as soon as practicable, but in any event within forty-five (45) 45 days after the end of each of the first three (3) quarters quarter of each fiscal year of the CorporationCompany, a statement showing the number of shares of each class and series of capital stock 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 equity compensation awards stock options and equity compensation awards stock options not yet issued but reserved for issuance, if any, all in sufficient detail as to permit the Stockholder Investors to calculate its their respective percentage equity ownership in the CorporationCompany; provided, and certified however, if the information required by this subsection is contained in the chief financial officer or chief executive officer statements delivered under this section it need not be separately provided;
(b) 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 30 days before the Company’s good-faith estimate of the Corporation 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 being true, complete, and correct; and
7.1.4 as soon as practicable, but in any event within thirty (30) days of the end of each month, an unaudited income Company is no longer actively employing its commercially reasonable efforts to cause such registration statement for such month, and an unaudited balance sheet as of the end of such month, all prepared in accordance with GAAP (except that such financial statements may (i) be subject to normal year-end audit adjustments and (ii) not contain all notes thereto that may be required in accordance with GAAP)become effective.
Appears in 1 contract
Sources: Investors’ Rights Agreement (Target Global Acquisition I Corp.)
Delivery of Financial Statements. So long as a Founder (and/or her applicable Founder Group) hold at least 10,000 shares of Class A Common Stock (subject to appropriate adjustment in the event of any stock dividend, stock split, combination or other similar recapitalization with respect to the Class A Common Stock), the Corporation The Company shall deliver to such Stockholdersthe Investor:
7.1.1 (a) as soon as practicable, but in any event within one hundred twenty (120) days after the end of each fiscal year of the Corporation, its 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 Stockholdersstockholders’ equity as of the end of such year, all such financial statements prepared in accordance with GAAP, audited and certified by independent public accountants of nationally recognized standing selected by the CorporationCompany; provided that for the year ending December 31, 2015, the Company shall only be required to do a high level comparison against the Budget for purpose of clause (ii);
7.1.2 (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 CorporationCompany, 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 (i) be subject to normal year-end audit adjustments; and (ii) not contain all notes thereto that may be required in accordance with GAAP);
7.1.3 (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 CorporationCompany, 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 equity compensation awards stock options and equity compensation awards stock options not yet issued but reserved for issuance, if any, all in sufficient detail as to permit the Stockholder Investor to calculate its percentage equity ownership in the CorporationCompany, and certified by the chief financial officer or chief executive officer of the Corporation Company as being true, complete, and correct; and;
7.1.4 (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); and
(e) as soon as practicable, but in any event thirty (30) days before the end of each fiscal year, a budget for the next fiscal year (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. If, for any period, the Company has any subsidiary whose accounts are consolidated with those of the Company, then in respect of such period the financial statements delivered pursuant to the foregoing sections shall be the consolidated and consolidating financial statements of the Company and all such consolidated subsidiaries. Notwithstanding anything else in this Subsection 3.1 to the contrary, the Company may cease providing the information set forth in this Subsection 3.1 during the period starting with the date sixty (60) days before the Company’s good-faith estimate of the date of filing of a registration statement; provided that the Company’s covenants under this Subsection 3.1 shall be reinstated at such time as the Company is no longer actively employing its commercially reasonable efforts to cause such registration statement to become effective.
Appears in 1 contract
Sources: Investor Rights Agreement (Braeburn Pharmaceuticals, Inc.)
Delivery of Financial Statements. So long as a Founder (and/or her applicable Founder Group) hold at least 10,000 shares of Class A Common Stock (subject to appropriate adjustment in the event of any stock dividend, stock split, combination or other similar recapitalization with respect to the Class A Common Stock)Upon written request by Investor, the Corporation Company shall deliver the following to such StockholdersInvestor:
7.1.1 (a) as soon as practicable, but in any event within one hundred twenty ninety (12090) days after the end of each fiscal year of the Corporation, its 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(d)) for such year, with an explanation of any material differences between such amounts and a schedule as to the sources and applications of funds for such year, and (iii) a statement of Stockholdersstockholders’ equity as of the end of such year, all such financial statements prepared in accordance with GAAP, audited and certified by independent public accountants of nationally recognized standing selected by the Corporation;; INVESTOR RIGHTS AGREEMENT
7.1.2 (b) as soon as practicable, but in any event within forty-five (45) days after the end of each of the first three (3) quarters quarter of each fiscal year of the CorporationCompany, 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 IFRS or 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 IFRS or GAAP);
7.1.3 (c) as soon as practicable, but in any event within forty-five (45) days after the end of each of the first three (3) quarters quarter of each fiscal year of the CorporationCompany, 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 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 equity compensation awards stock options and equity compensation awards stock options not yet issued but reserved for issuance, if any, all in sufficient detail as to permit the Stockholder Investor to calculate its percentage equity ownership in the CorporationCompany, and certified by the chief financial officer or chief executive officer of the Corporation Company as being true, complete, and correct; and;
7.1.4 (d) as soon as practicable, but in any event within thirty (30) days of before the end of each monthfiscal 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”); and
(e) with respect to the financial statements called for in Section 3.1(a) and Section 3.1(b), an unaudited income statement for such month, instrument executed by the chief financial officer and an unaudited balance sheet as chief executive officer of the end of Company certifying that such month, all financial statements were prepared in accordance with IFRS or GAAP consistently applied with prior practice for earlier periods (except as otherwise set forth in Section 3.1(b) or as disclosed otherwise) and fairly present, in all material respects, the financial condition of the Company and its financial performance 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 Investor may from time to time reasonably request; provided, however, that such financial statements may 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 subject a trade secret or confidential information (unless covered by an enforceable confidentiality agreement, in a form acceptable to normal year-end audit adjustments and the Company); or (ii) not contain 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 notes thereto such consolidated subsidiaries. INVESTOR RIGHTS AGREEMENT Notwithstanding anything else in this Section 3.1 to the contrary, the Company shall have no obligation to provide any information requested pursuant to this Section 3.1 during (i) any period in which the Company has a public filing obligation to provide substantially similar information or (ii) the period starting with the date thirty (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 may the Company’s covenants under this Section 3.1 shall be required in accordance with GAAP)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. So long as a Founder The Company shall deliver to each Investor who holds (and/or her applicable Founder Groupi) hold at least 10,000 2,000,000 shares of Class Series A Common Preferred Stock (or related Registrable Securities), (ii) at least 759,777 shares of Series B Preferred Stock (or related Registrable Securities), (iii) at least 33,333 shares of Series C Preferred Stock (or related Registrable Securities) or (iv) at least 28,571 shares of Series D Preferred Stock (or related Registrable Securities) (in each case, subject to appropriate adjustment in the event of any stock dividend, stock split, combination or other similar recapitalization with respect affecting such shares, and including Common Stock issued or issuable upon the conversion of such Preferred Stock, such applicable number being the “Specified Minimum”) and to each Investor who at a prior time held the Class A Common Stock), Specified Minimum and at such time holds any Remaining Shares (as such term is defined in section 2.3.2(b) of part B of Article Fourth of the Corporation shall deliver to such Stockholders:Certificate of Incorporation):
7.1.1 (a) as soon as practicable, but in any event within one hundred twenty eighty (120180) days after the end of each fiscal year of the CorporationCompany, its (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 a comparison between the actual amounts as of and for such fiscal year, and the comparable amounts for the prior year and as included in the Budget (as defined in Section 3.1(e) below) for such year, with an explanation of any material differences between such amounts and a schedule as to the sources and applications of funds for such year, and (iii) a statement of Stockholdersstockholders’ equity as of the end of such year, all such financial statements prepared in accordance with GAAPand once the Company has selected an auditor, audited and certified by independent public accountants of nationally recognized standing selected by the CorporationCompany, and until then, unaudited reports;
7.1.2 (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, a financial report including unaudited statements of income and of cash flows for such fiscal quarter, and an unaudited balance sheet and a statement of stockholder’s equity as of the end of such fiscal quarter, all prepared in accordance with GAAP, (except that such financial report may (i) be subject to normal year-end audit adjustments and (ii) not contain all notes thereto which 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 Corporation, unaudited statements of income and cash flows for such fiscal quarter, and an unaudited balance sheet as of the end of such fiscal quarter, all prepared in accordance with GAAP (except that such financial statements may (i) be subject to normal year-end audit adjustments; and (ii) not contain all notes thereto that may be required in accordance with GAAP);
7.1.3 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 CorporationCompany, 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 conversion or exchange ratio or exercise price applicable thereto and number of shares of issued equity compensation awards stock options and equity compensation awards stock options not yet issued but reserved for issuance, if any, all in sufficient detail as to permit the Stockholder Investors to calculate its their respective percentage equity ownership in the CorporationCompany, and certified by the chief financial officer or chief executive officer of the Corporation Company as being true, complete, complete and correct; and;
7.1.4 (d) as soon as practicable, but in any event within thirty (30) days of the end of each month, a financial report including an unaudited income statement and statement of cash flows for such month, month and an unaudited balance sheet and statement of stockholder’s equity as of the end of such month, all prepared in accordance with GAAP GAAP, (except that such financial statements report may (i) be subject to normal year-end audit adjustments and (ii) not contain all notes thereto that which may be required in accordance with GAAP); and
(e) as soon as practicable, but in any event within forty-five (45) days of the beginning of each fiscal year, an operating plan for the next fiscal year (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. If for any period the Company shall have any subsidiary whose accounts are consolidated with those of the Company, then in respect of such period the financial statements delivered pursuant to the foregoing sections shall be the consolidated and consolidating financial statements of the Company and all such consolidated subsidiaries.
Appears in 1 contract
Delivery of Financial Statements. So long as a Founder (and/or her applicable Founder Group) hold at least 10,000 shares of Class A Common Stock (subject to appropriate adjustment in the event of any stock dividend, stock split, combination or other similar recapitalization with respect to the Class A Common Stock), the Corporation The Company shall deliver to each Major Investor, provided that the Board of Directors has not reasonably determined that such StockholdersMajor Investor is a Competitor of the Company:
7.1.1 (a) as soon as practicable, but in any event within one hundred twenty (120) days after the end of each fiscal year of the Corporation, its 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 Stockholdersstockholders’ equity as of the end of such year, all such financial statements prepared in accordance with GAAP, to be audited and certified by independent public accountants of nationally recognized standing selected by the CorporationCompany and approved by the Board of Directors (including a majority of the Investor Directors);
7.1.2 (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 CorporationCompany, 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 (i) be subject to normal year-end audit adjustments; and (ii) not contain all notes thereto that may be required in accordance with GAAP);
7.1.3 (c) as soon as practicable, but in any event within forty-five (45) days after the end of each fiscal quarter of the first three (3) quarters of each fiscal year of the CorporationCompany an up-to-date capitalization table including, a statement showing the number of shares of each class and series of capital stock and securities convertible into or exercisable for shares of capital stock outstanding at the end of the period, the Common Stock issuable upon conversion or exercise of any outstanding securities convertible or exercisable for Common Stock and the exchange ratio or exercise price applicable thereto, and the number of shares of issued equity compensation awards stock options and equity compensation awards stock options not yet issued but reserved for issuance, if any, all in sufficient detail as to permit the Stockholder Major Investors to calculate its their respective percentage equity ownership in the CorporationCompany, and certified by the chief financial officer or chief executive officer of the Corporation Company as being true, complete, and correct; and;
7.1.4 (d) as soon as practicable, but in any event within thirty (30) days of the end of each month, an unaudited income statement and statement of cash flows for such month, and an unaudited balance sheet and statement of stockholders’ equity as of the end of such month, all prepared in accordance with GAAP (except that such financial statements may (i) be subject to normal year-end audit adjustments and (ii) not contain all notes thereto that may be required in accordance with GAAP);
(e) as soon as practicable, but in any event thirty (30) days before the end of each fiscal year, a budget and business plan for the next fiscal year (collectively, the “Budget”), approved by the Board of Directors and prepared on a 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 (i) that the Company reasonably determines in good faith to be a trade secret or confidential information (unless covered by an enforceable confidentiality agreement, in a form acceptable to the Company); or (ii) the disclosure of which would adversely affect the attorney-client privilege between the Company and its counsel. If, for any period, the Company has any subsidiary whose accounts are consolidated with those of the Company, then in respect of such period the financial statements delivered pursuant to the foregoing sections shall be the consolidated and consolidating financial statements of the Company and all such consolidated subsidiaries. Notwithstanding anything else in this Subsection 3.1 to the contrary, if the Board of Directors of the Company has reasonably determined that a Major Investor is a Competitor of the Company, (i) the Company shall not be obligated to deliver to such Major Investor information that in the reasonable determination of the Board of Directors of the Company is deemed competitively sensitive and (ii) the Company shall continue to provide to such Major Investor the information set forth in this Subsection 3.1 that has not been deemed competitively sensitive; provided that such Major Investor shall have agreed in writing that such information shall not be shared with, disclosed to or used by anyone outside of such Major Investor’s venture investment business division other than in confidence with such division’s legal counsel, accountants, and insurance providers and their respective advisors solely in connection with (x) financial transactions between such Major Investor and Company and (y) reporting required by a governmental authority or by order of a court of competent jurisdiction. Notwithstanding anything else in this Subsection 3.1 to the contrary, the Company may cease providing the information set forth in this Subsection 3.1 during the period starting with the date thirty (30) days before the Company’s good-faith estimate of the date of filing of a registration statement if it reasonably concludes it must do so to comply with the SEC rules applicable to such registration statement and related offering; provided that the Company’s covenants under this Subsection 3.1 shall be reinstated at such time as the Company is no longer actively employing its commercially reasonable efforts to cause such registration statement to become effective.
Appears in 1 contract
Sources: Investors’ Rights Agreement (Unum Therapeutics, Inc.)
Delivery of Financial Statements. So long as a Founder (and/or her applicable Founder Group) hold at least 10,000 shares of Class A Common Stock (subject to appropriate adjustment in the event of any stock dividend, stock split, combination or other similar recapitalization with respect to the Class A Common Stock), the Corporation The Company shall deliver to each Major Stockholder, provided that the Board of Directors has not reasonably determined that such StockholdersMajor Stockholder is a Competitor of the Company:
7.1.1 (a) as soon as practicable, but in any event within (A) one hundred eighty (180) days after the end of the Company’s fiscal year ending December 31, 2024 and (B) one hundred twenty (120) days after the end of each fiscal year of the CorporationCompany thereafter, its (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 annual budget of the Company approved by the Board of Directors, including at least one Preferred Director (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) a statement of Stockholdersstockholders’ equity as of the end of such fiscal year, all such financial statements prepared in accordance with GAAP, audited and certified by independent public accountants of nationally regionally recognized standing selected by the CorporationCompany;
7.1.2 (b) as soon as practicable, but in any event within forty-five (45) days after the end of each of the first three (3) quarters quarter of each fiscal year of the CorporationCompany beginning with the fourth quarter of the fiscal year ending December 31, unaudited statements of income and cash flows for such fiscal quarter2024, and (i) an unaudited balance sheet as of the end of such fiscal quarter, (ii) unaudited statements of income and cash flows for such fiscal quarter and (iii) 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);
7.1.3 (c) as soon as practicable, but in any event within forty-five (45) days after the end of each of the first three (3) quarters quarter of each fiscal year of the CorporationCompany, 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 equity compensation awards stock options and equity compensation awards stock options not yet issued but reserved for issuance, if any, all in sufficient detail as to permit the Stockholder Major Stockholders to calculate its their respective percentage equity ownership in the Corporation, and certified by the chief financial officer or chief executive officer of the Corporation as being true, complete, and correctCompany; and
7.1.4 as soon as practicable(d) such other information relating to the financial condition, but in any event within thirty (30) days business, prospects, or corporate affairs of the end of each monthCompany as any Major Stockholder may from time to time reasonably request; provided, an unaudited income statement for such monthhowever, and an unaudited balance sheet as of that the end of such month, all prepared in accordance with GAAP (except that such financial statements may Company shall not be obligated under this Section 3.1 to provide information (i) that the Company reasonably determines in good faith to be subject to normal year-end audit adjustments and a trade secret; or (ii) not contain 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 notes thereto 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 may the Company’s covenants under this Section 3.1 shall be required in accordance with GAAP)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. So long as a Founder (and/or her applicable Founder Group) hold at least 10,000 shares of Class A Common Stock (subject to appropriate adjustment in the event of any stock dividend, stock split, combination or other similar recapitalization with respect to the Class A Common Stock), the Corporation The Company shall deliver to such Stockholders:each Investor holding at least 5% of the issued and outstanding capital stock of the Company as of the date hereof (each, a “Major Investor”):
7.1.1 (a) as soon as practicable, but in any event within one hundred twenty (120) days after the end of each fiscal year of the CorporationCompany, its (i) a consolidated balance sheet as of the end of such year, (ii) statements of income Company and of cash flows for such year, and (iii) a consolidated statement of Stockholdersstockholders’ equity as of the end of such year, all and a consolidated statement of operations and a consolidated 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 a regionally recognized independent public accountants of nationally recognized standing accounting firm selected by the CorporationCompany;
7.1.2 (b) as soon as practicable, but in any event within forty-five (45) calendar days after the end of each of the first three (3) quarters of each fiscal year of the CorporationCompany, unaudited statements consolidated balance sheets of income the Company and cash flows for such fiscal quarterits subsidiaries, and an unaudited balance sheet if any, as of the end of such fiscal quarter, all and unaudited consolidated statements of operations and consolidated statements of cash flows of the Company and its subsidiaries, if any, for such quarter 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);
7.1.3 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 Corporation, a statement showing the number of shares of each class of capital stock outstanding at the end of the period, and the number of shares of issued equity compensation awards and equity compensation awards not yet issued but reserved for issuance, if any, all in sufficient reasonable detail as to permit the Stockholder to calculate its percentage equity ownership in the Corporation, and certified by the chief financial officer or chief executive officer with comparisons of the Corporation as being true, complete, financial results against the Company’s budget for that financial period and correct; andthe Company’s financial results for the corresponding period of the previous year;
7.1.4 (c) as soon as practicable, but in any event within thirty (30) days of the end of each month, an unaudited income statement for such monthconsolidated balance sheet of the Company for, and an unaudited balance sheet as of of, the end of such month, all an unaudited consolidated statement of operations and a consolidated statement of cash flows, prepared in accordance with GAAP, in reasonable detail with comparisons of the financial results against the Company’s budget for that financial period and the Company’s financial results for the corresponding period of the previous year, and an updated capitalization table as of the date of such statements;
(d) as soon as practicable, but in any event within thirty (30) days prior to the beginning of each fiscal year, a copy of the Company’s budget and annual operating plan for such fiscal year;
(e) such other information relating to the financial condition, business, prospects 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 (e) to provide information which it reasonably considers to be a trade secret or similar confidential information; and
(f) together with the financial statements called for in subsections (b) and (c) above, a certificate executed by the Chief Financial Officer of the Company that such financial statements were prepared in accordance with GAAP (except with the exception of footnotes that such may be required by GAAP) applied on a consistent basis with prior periods and fairly represent the financial statements may (i) be condition of the Company as of the date they were prepared and the results of operations of the Company for the period indicated, subject to normal year-end audit adjustments and (ii) not contain all notes thereto that may be required in accordance with GAAP)adjustments.
Appears in 1 contract
Delivery of Financial Statements. So long as a Founder The Company shall deliver to (and/or her applicable Founder Groupx) hold each Investor (or transferee of an Investor) that holds at least 10,000 6,000,000 shares of Class A Common Preferred Stock (subject to appropriate adjustment for stock splits, stock dividends, combinations or the like), or, in the event case of holders of Series F Preferred Stock that are not Advisory Accounts, at least 150,000 shares of Series F Preferred Stock (subject to appropriate adjustment for stock splits, stock dividends, combinations or the like) and (y) to each Investment Adviser (as identified on the signature pages hereto) of any stock dividendInvestor that is an Advisory Account (each, stock splitan “Information Recipient”):
(a) (i) as soon as practicable, combination or other similar recapitalization but in any event within ninety (90) days after the end of each fiscal year of the Company, 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 statement of cash flows for such year, such year-end financial reports (the “Annual Financials”) to be in reasonable detail and prepared in accordance with respect to the Class A Common Stockgenerally accepted accounting principles (“GAAP”), the Corporation shall deliver to such Stockholders:
7.1.1 and (ii) as soon as practicable, but in any event within one hundred twenty (120) days after the end of each fiscal year of the CorporationCompany, its (i) balance sheet as of the end of such year, (ii) statements of income and of cash flows for such year, and (iii) statement of Stockholders’ equity as of the end of such year, all such financial statements prepared in accordance with GAAP, Annual Financials audited and certified by independent public accountants of nationally recognized standing selected by the CorporationCompany;
7.1.2 (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 CorporationCompany, an unaudited statements income statement, statement of income and cash flows for such fiscal quarter, quarter and an unaudited balance sheet as of the end of such fiscal quarter, all prepared in accordance with GAAP (except that such financial statements may (i) be subject to normal year-end audit adjustments; and (ii) not contain all notes thereto that may be required in accordance with GAAP);
7.1.3 as soon as practicable(c) upon request by any Information Recipient, 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 Corporation, a statement showing the number of shares of each class of capital stock outstanding at the end of the period, and the number of shares of issued equity compensation awards and equity compensation awards not yet issued but reserved for issuance, if any, all in sufficient detail as to permit the Stockholder to calculate its percentage equity ownership in the Corporation, and certified by the chief financial officer or chief executive officer of the Corporation as being true, complete, and correct; and
7.1.4 as soon as practicable, but in any event within thirty (30) days of the end of each month, an unaudited income statement for such month, and an unaudited statement of cash flows and balance sheet for and as of the end of such month, each in reasonable detail, together with a current summary capitalization table;
(d) no later than five business days after approval thereof, but in any event no later than sixty (60) days after the end of each fiscal year, a budget and business plan for the next fiscal year, including balance sheets, income statements and statements of cash flows for such fiscal year and, as soon as prepared, any other budgets or revised budgets prepared by the Company;
(e) as soon as practicable, but in any event no later than 15 business days after the occurrence of the event, notice of any stock split, stock dividend or other corporate event affecting the capitalization of the Company;
(f) such other information relating to the financial condition, business or corporate affairs of the Company as any Information Recipient 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 that it deems in good faith to be a trade secret or similar confidential information; and
(g) at the same time and in the same manner as such materials are delivered to its Board, all prepared materials, financial or otherwise, which the Company provides to its Board in accordance connection with GAAP meetings of the Board; provided, however, that the Company reserves the right to exclude access to any materials (except or portion thereof) if the Company believes upon the advice of counsel that such financial statements exclusion is reasonably necessary to preserve the attorney client privilege, to protect highly confidential information or for similar reasons. The decision of the Board with respect to the privileged or confidential nature of such information shall be final and binding. Notwithstanding anything else in this Section 2.1 to the contrary, the Company may cease providing the information set forth in this Section 2.1 during the period starting with the date thirty (i30) days before the Company’s good-faith estimate of the date of filing of a registration statement if it reasonably concludes upon the advice of counsel 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 2.1 shall be subject reinstated at such time as the Company is no longer actively employing commercially reasonable efforts to normal year-end audit adjustments and (ii) not contain all notes thereto that may be required in accordance with GAAP)cause such registration statement to become effective.
Appears in 1 contract
Delivery of Financial Statements. So long as a Founder (and/or her applicable Founder Group) hold at least 10,000 shares of Class A Common Stock (subject to appropriate adjustment in the event of any stock dividend, stock split, combination or other similar recapitalization with respect to the Class A Common Stock), the Corporation The Company shall deliver to such Stockholderseach Major Investor:
7.1.1 (a) as soon as practicable, but in any event within one hundred twenty (120) 150 days after the end of each fiscal year of the CorporationCompany (and no later than when provided to the Company’s lenders), its (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(d)) for such year, with an explanation of any material differences between such amounts and a schedule as to the sources and applications of funds for such year, and (iii) a statement of Stockholdersshareholders’ equity as of the end of such year, all such with the financial statements prepared in accordance with GAAP, audited and certified by independent public accountants of nationally recognized standing selected by the CorporationCompany;
7.1.2 (b) as soon as practicable, but in any event within forty-five (45) 45 days after the end of each of the first three (3) quarters of each fiscal year of the CorporationCompany, unaudited statements of income and of cash flows for such fiscal quarter, and an unaudited balance sheet as of the end of such fiscal quarter, all prepared in accordance with GAAP (except that such financial statements may (i) be subject to normal year-end audit adjustments; adjustments and (ii) not contain all notes thereto that may be required in accordance with GAAP);
7.1.3 (c) as soon as practicable, but in any event within forty-five (45) 45 days after the end of each of the first three (3) quarters of each fiscal year of the CorporationCompany, 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 equity compensation awards stock options and equity compensation awards stock options not yet issued but reserved for issuance, if any, all in sufficient detail as to permit the Stockholder Major Investors to calculate its their respective percentage equity ownership in the CorporationCompany, and certified by the chief financial officer or chief executive officer of the Corporation Company as being true, complete, and correct; and;
7.1.4 (d) as soon as practicable, but in any event within thirty (30) 30 days of the end of each month, an unaudited income statement and statement of cash flows for such month, and an unaudited balance sheet as of the end of such month, all prepared in accordance with GAAP (except that such financial statements may (i) be subject to normal year-end audit adjustments and (ii) not contain all notes thereto that may be required in accordance with GAAP);
(e) as soon as practicable, but in any event 30 days after the start of each fiscal year, a budget and business plan for that 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; 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 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. So long as a Founder (and/or her applicable Founder Group) hold at least 10,000 shares of Class A Common Stock (subject to appropriate adjustment in the event of any stock dividend, stock split, combination or other similar recapitalization with respect to the Class A Common Stock), the Corporation The Company shall deliver to such Stockholdersthe Investor the following documents or reports:
7.1.1 as soon as practicable, but in any event (a) within one hundred twenty ninety (12090) days after the end of each fiscal year of the CorporationCompany, its (i) consolidated income statements and statements of cash flows for the Company and the Group Companies for such fiscal year, consolidated balance sheet sheets for the Company and the Group Companies as of the end of such year, (ii) statements of income the fiscal year all prepared in English and of cash flows for such year, and (iii) statement of Stockholders’ equity as of the end of such year, all such financial statements prepared in accordance with US GAAP, and audited and certified by a “big 4” firm of independent certified public accountants of nationally recognized international standing and reputation selected by the CorporationCompany, and a management report including a comparison of financial results with corresponding annual and quarterly budgets (a “Management Report”);
7.1.2 as soon as practicable, but in any event (b) within forty-five (45) days after the end of each fiscal quarter of the first three (3) quarters of each fiscal year of the CorporationCompany, consolidated unaudited income statements and statements of income and cash flows for such fiscal quarter, and an consolidated unaudited balance sheet sheets for the Company and the Group Companies as of the end of such fiscal quarter, and a Management Report, all prepared in accordance with GAAP (except that such financial statements may (i) be subject to normal year-end audit adjustments; English and (ii) not contain all notes thereto that may be required in accordance with US GAAP);
7.1.3 as soon as practicable, but in any event (c) within forty-five fifteen (45) days after the end of each of the first three (3) quarters of each fiscal year of the Corporation, a statement showing the number of shares of each class of capital stock outstanding at the end of the period, and the number of shares of issued equity compensation awards and equity compensation awards not yet issued but reserved for issuance, if any, all in sufficient detail as to permit the Stockholder to calculate its percentage equity ownership in the Corporation, and certified by the chief financial officer or chief executive officer of the Corporation as being true, complete, and correct; and
7.1.4 as soon as practicable, but in any event within thirty (3015) days of the end of each month, an unaudited income statement statements and statements of cash flows for such month, balance sheets for the Company and an unaudited balance sheet the Group Companies as of the end of such month, and a Management Report, all prepared in accordance with GAAP (except that such financial statements may (i) be subject to normal year-end audit adjustments English and (ii) not contain all notes thereto that may be required in accordance with US GAAP);
(d) at least fifteen (15) days prior to the end of each fiscal quarter, a quarterly budget and business plan for the succeeding fiscal quarter;
(e) at least thirty (30) days prior to the end of each fiscal year, an annual budget and business plan for the succeeding fiscal year;
(f) within five (5) working days after providing such information to any other member of the Company, copies of all other documents or other information sent to such member of the Company; and
(g) within five (5) working days after the filing of any reports or other documents by the Company with any relevant securities exchange, regulatory authority or governmental agency, copies of any such reports or documents, provided that such reports or other documents are not available to the public.
Appears in 1 contract
Sources: Investors' Rights Agreement (Acorn International, Inc.)
Delivery of Financial Statements. So long as a Founder (and/or her applicable Founder Group) hold at least 10,000 shares of Class A Common Stock (subject to appropriate adjustment in the event of any stock dividend, stock split, combination or other similar recapitalization with respect to the Class A Common Stock), the Corporation The Company shall deliver to each Investor, provided that the Board of Directors, as determined by a Special Board Approval, has not reasonably determined that such StockholdersInvestor is a Competitor of the Company:
7.1.1 (a) as soon as practicable, but in any event within one hundred twenty (120) days after the end of each fiscal year of the Corporation, its 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 Stockholdersstockholders’ equity as of the end of such year, all such financial statements prepared in accordance with GAAP, audited and certified by independent public accountants of nationally regionally recognized standing selected by the CorporationCompany;
7.1.2 (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 CorporationCompany, unaudited statements of income and cash flows for such fiscal quarter, and an unaudited balance sheet as of the end of such fiscal quarter, all prepared in accordance with GAAP (except that such financial statements may (i) be subject to normal year-end audit adjustments; and (ii) not contain all notes thereto that may be required in accordance with GAAP);
7.1.3 as soon as practicable, but in any event within forty-five (45c) days after the end of each of the first three (3) quarters of each fiscal year of the Corporation, a statement showing the number of shares of each class of capital stock outstanding at the end of the period, and the number of shares of issued equity compensation awards and equity compensation awards not yet issued but reserved for issuance, if any, all in sufficient detail as to permit the Stockholder to calculate its percentage equity ownership in the Corporation, and certified by the chief financial officer or chief executive officer of the Corporation as being true, complete, and correct; and
7.1.4 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 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 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; and
(e) as soon as practicable, but in any event thirty (30) days before the end of each fiscal year, a budget and business plan for the next fiscal year (collectively, the “Budget”), 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. If, for any period, the Company has any subsidiary whose accounts are consolidated with those of the Company, then in respect of such period the financial statements delivered pursuant to the foregoing sections shall be the consolidated and consolidating financial statements of the Company and all such consolidated subsidiaries. Notwithstanding anything else in this Subsection 3.1 to the contrary, the Company may cease providing the information set forth in this Subsection 3.1 during the period starting with the date thirty (30) days before the Company’s good-faith estimate of the date of filing of a registration statement if it reasonably concludes it must do so to comply with the SEC rules applicable to such registration statement and related offering; provided that the Company’s covenants under this Subsection 3.1 shall be reinstated at such time as the Company is no longer actively employing its commercially reasonable efforts to cause such registration statement to become effective.
Appears in 1 contract
Delivery of Financial Statements. So long as a Founder (and/or her applicable Founder Group) hold at least 10,000 shares of Class A Common Stock (subject to appropriate adjustment in the event of any stock dividend, stock split, combination or other similar recapitalization with respect to the Class A Common Stock), the Corporation The Company shall deliver to such Stockholderseach Investor:
7.1.1 (a) as soon as practicable, but in any event within one hundred twenty ninety (12090) days after the end of each fiscal year of the CorporationCompany, its (i) a balance sheet as of the end of such year, (ii) statements of income and of cash flows for such year, and a comparison between (x) the actual amounts as of and for such fiscal year and (y) the comparable amounts for the prior year and as included in the Budget (as defined in Subsection 3.1(d)) for such year, with an explanation of any material differences between such amounts and a schedule as to the sources and applications of funds for such year, and (iii) a statement of Stockholdersstockholders’ equity as of the end of such year, all such financial statements prepared in accordance with GAAP, audited and certified by independent public accountants of nationally regionally recognized standing selected by the CorporationCompany and approved by the Board of Directors, which approval must include including the Preferred Directors (as defined in the Voting Agreement);
7.1.2 (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 CorporationCompany, unaudited statements of income and of cash flows for such fiscal quarter, and an unaudited balance sheet and a statement of stockholders’ equity as of the end of such fiscal quarter, all prepared in accordance with GAAP (except that such financial statements may (i) be subject to normal year-end audit adjustments; and (ii) not contain all notes thereto that may be required in accordance with GAAP);
7.1.3 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 Corporation, a statement showing the number of shares of each class of capital stock outstanding at the end of the period, and the number of shares of issued equity compensation awards and equity compensation awards not yet issued but reserved for issuance, if any, all in sufficient detail as to permit the Stockholder to calculate its percentage equity ownership in the Corporation, and certified by the chief financial officer or chief executive officer of the Corporation as being true, complete, and correct; and
7.1.4 as soon as practicable, but in any event within thirty (30) days of the end of each month, an unaudited income statement for such month, and an unaudited balance sheet as of the end of such month, all prepared in accordance with GAAP (except that such financial statements may (i) be subject to normal year-end audit adjustments and (ii) not contain all notes thereto that may be required in accordance with GAAP);
(c) as soon as practicable 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 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; and
(d) as soon as practicable, but in any event thirty (30) days before the end of each fiscal year, a budget and business plan for the next fiscal year (collectively, the “Budget”), approved by the Board of Directors and prepared on a 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. 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 thirty (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
Sources: Investors’ Rights Agreement (Apellis Pharmaceuticals, Inc.)
Delivery of Financial Statements. So long as a Founder (and/or her applicable Founder Group) hold The Company shall deliver to each Investor that holds at least 10,000 Five Hundred Thousand (500,000) shares of Class A Common Stock Registrable Securities (subject to appropriate adjustment in the event of any for stock dividendsplits, stock splitdividends, combination or and other similar recapitalization with respect to the Class A Common Stock)recapitalizations) (each such Investor, the Corporation shall deliver to such Stockholders:a “Qualified Investor”):
7.1.1 (a) as soon as practicable, but in any event within one hundred twenty ninety (12090) days after the end of each fiscal year of the CorporationCompany, its (i) an income statement for such fiscal year, a balance sheet as of the end of such year, (ii) statements of income Company and of cash flows for such year, and (iii) 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 (“GAAP”), and audited and certified by independent public accountants of nationally recognized standing selected by the CorporationCompany;
7.1.2 (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 CorporationCompany, an unaudited statements profit or loss statement, schedule as to the sources and application of income and cash flows funds for such fiscal quarter, and an unaudited balance sheet and a statement of 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; quarter and (ii) not contain all notes thereto that may be required in accordance with GAAP);
7.1.3 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 Corporation, 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, and the number of common shares issuable upon conversion or exercise of issued equity compensation awards any outstanding securities convertible or exercisable for common shares and equity compensation awards not yet issued but reserved for issuance, if anythe exchange ratio or exercise price applicable thereto, all in sufficient detail as to permit the Stockholder Qualified Investor to calculate its percentage equity ownership in the Corporation, and certified by the chief financial officer or chief executive officer of the Corporation as being true, complete, and correct; andCompany;
7.1.4 (c) as soon as practicable, but in any event within thirty not less than forty-five (3045) days of prior to the end of each monthfiscal year, an unaudited income statement a budget of sales and expenses and operating plan for the next fiscal year, prepared on a monthly basis, including balance sheets and sources and applications of funds statements for such month, months which such budget and an unaudited balance sheet as of operating plan shall be approved by the Board prior to the end of each fiscal year, and, as soon as prepared, any other budgets or revised budgets prepared by the Company;
(d) with respect to the financial statements called for in subsection (b) above, an instrument executed by the Corporation’s President or Chief Financial Officer certifying that such month, all 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 adjustment; and
(iie) such other information relating to the financial condition, business, prospects or corporate affairs of the Company as the Qualified Investor may from time to time request, provided, however, that the Company shall not contain all notes thereto that may be required obligated under this subsection (e) or any other subsection of Section 2.1 to provide information which it deems in accordance with GAAP)good faith to be a trade secret or similar confidential information.
Appears in 1 contract
Sources: Investors’ Rights Agreement (Xcel Pharmaceuticals Inc)
Delivery of Financial Statements. So long as a Founder (and/or her applicable Founder Group) hold at least 10,000 shares of Class A Common Stock (subject to appropriate adjustment in the event of any stock dividend, stock split, combination or other similar recapitalization with respect to the Class A Common Stock), the Corporation The Company shall deliver to each Major Investor (provided, that the Board of Directors has not reasonably determined that such Stockholders:Major Investor is a direct or indirect competitor of the Company, and further provided, that no Major Investor that is a private equity fund shall be deemed to be a direct or indirect competitor of the Company, irrespective of the other portfolio companies of such private equity fund):
7.1.1 (a) as soon as practicable, but in any event within one hundred twenty ninety (12090) days after the end of each fiscal year of the CorporationCompany, its (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 Stockholdersstockholders’ equity as of the end of such year, all such financial statements prepared in accordance with GAAP, audited and certified by independent public accountants of nationally or regionally recognized standing selected by the CorporationCompany;
7.1.2 (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 CorporationCompany, unaudited statements of income and of cash flows for such fiscal quarter, and an unaudited balance sheet as of the end of such fiscal quarter, all prepared in accordance with GAAP (except that such financial statements may (i) be subject to normal year-end audit adjustments; adjustments and (ii) not contain all notes thereto that may be required in accordance with GAAP);
7.1.3 (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 Corporation, a statement showing the number of shares of each class of capital stock outstanding at the end of the period, and the number of shares of issued equity compensation awards and equity compensation awards not yet issued but reserved for issuance, if any, all in sufficient detail as to permit the Stockholder to calculate its percentage equity ownership in the Corporation, and certified by the chief financial officer or chief executive officer of the Corporation as being true, complete, and correct; and
7.1.4 as soon as practicable, but in any event within thirty (30) days of the end of each month, an unaudited income statement for such month, and an unaudited balance sheet as of the end of such month, all prepared in accordance with GAAP (except that such financial statements may (i) be subject to normal year-end audit adjustments and (ii) not contain all notes thereto that may be required in accordance with GAAP);
(d) as soon as practicable, but in any event thirty (30) days before the end of each fiscal year, a budget for the next fiscal year (the “Budget”), approved by the Board of Directors;
(e) with respect to the financial statements called for in Section 3.1(a), Section 3.1(b) and Section 3.1(c), an instrument executed by the chief financial officer and chief executive officer of the Company certifying that such financial statements were prepared in accordance with GAAP consistently applied with prior practice for earlier periods (except as otherwise set forth in Section 3.1(b) or Section 3.1(c)) and fairly present the 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; 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 (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. In addition, the Company will provide both Aisling Capital II, LP and J▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ with (i) notice of the initiation of any legal action against the Company, and (ii) access to the books and records of the Company during business hours upon reasonable advance notice.
Appears in 1 contract
Sources: Investors' Rights Agreement (R&r Acquisition Vi, Inc)
Delivery of Financial Statements. So long Until such time as a Founder (and/or her applicable Founder Group) hold at least 10,000 shares of Class A Common Stock (subject to appropriate adjustment in the event of any stock dividend, stock split, combination or other similar recapitalization with respect Maximum Earn Out Payment is paid to the Class A Common Stock)Seller, the Corporation Buyer shall deliver the following to such Stockholdersthe Seller:
7.1.1 (a) if the Buyer has not previously filed the financial statements set forth below with the Securities and Exchange Commission(the “SEC”):
(i) as soon as practicable, but in any event within one hundred twenty (120) 120 days after the end of each fiscal year of the Corporation, Buyer (or 135 days if the Buyer files for an extension with the SEC of the filing of its (iAnnual Report on Form 10-K) 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 Stockholdersstockholders’ equity as of the end of such year, all such financial statements prepared in accordance with GAAP, setting forth, in each case, comparisons to the corresponding period in the preceding fiscal year, all such financial statements audited and certified by independent public accountants of nationally recognized standing selected by the CorporationBuyer;
7.1.2 (ii) as soon as practicable, but in any event within forty-five (45) 45 days after the end of each of the first three (3) quarters of each fiscal year of the CorporationBuyer (or 50 days if the Buyer files for an extension with the SEC of the filing of its Quarterly Report on Form 10-Q), unaudited statements of income and of cash flows for such fiscal quarter, and an unaudited balance sheet and a statement of stockholders’ equity as of the end of such fiscal quarter, all prepared in accordance with GAAP (except that such financial statements may (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);
7.1.3 (b) with respect to the financial statements called for in Section 7.7(a), an instrument executed by the chief financial officer and chief executive officer of the Buyer certifying that such financial statements were prepared in accordance with GAAP consistently applied with prior practice for earlier periods (except as soon as practicable, but otherwise set forth in any event Section 7.7(a)(ii) and fairly present the financial condition of the Buyer and its results of operation for the periods specified therein.
(c) within forty-five (45) days after two Business Days of the end of each of Seller’s quarterly accounting periods, Buyer will provide Seller with a good faith estimate of the first three (3) quarters amount of any Earnout Payment that has been earned during such quarter. At the beginning of each fiscal year of year, Seller shall provide Buyer with the Corporation, a statement showing the number of shares of each class of capital stock outstanding at the end of the period, and the number of shares of issued equity compensation awards and equity compensation awards not yet issued but reserved for issuance, if any, all in sufficient detail as to permit the Stockholder to calculate its percentage equity ownership in the Corporation, and certified by the chief financial officer or chief executive officer of the Corporation as being true, complete, and correct; and
7.1.4 as soon as practicable, but in any event within thirty (30) days of the end of each month, an unaudited income statement for such month, and an unaudited balance sheet as of the end of such month, all prepared in accordance with GAAP (except that such financial statements may (i) be subject to normal year-end audit adjustments and (ii) not contain all notes thereto that may be required in accordance with GAAP)dates on which Seller’s quarterly accounting periods end.
Appears in 1 contract
Sources: Asset Purchase and Collaboration Agreement (XRpro Sciences, Inc.)
Delivery of Financial Statements. So The Company shall deliver to each Investor, for so long as a Founder such Investor holds (and/or her applicable Founder Grouptogether with its affiliates) hold at least 10,000 5% of the Registrable Securities, 39,589 shares of Class A Common Series B-1 Preferred Stock or 2,000,000 shares of Series D Preferred Stock (subject to appropriate adjustment in each as adjusted for dividends, splits, recapitalizations and the event of any stock dividend, stock split, combination or other similar recapitalization like with respect to the Class A Common Stock)such shares) (each, the Corporation shall deliver to such Stockholders:a “Significant Investor”):
7.1.1 as soon as practicable, but in any event within one hundred twenty (120a) days after the end of each fiscal year of the Corporation, its (i) balance sheet as of the end of such year, (ii) statements of income and of cash flows for such year, and (iii) statement of Stockholders’ equity as of the end of such year, all such financial statements prepared in accordance with GAAP, audited and certified by independent public accountants of nationally recognized standing selected by the Corporation;
7.1.2 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 CorporationCompany, unaudited statements of the Company’s annual operating plan, an income and cash flows statement for such fiscal quarteryear, and an unaudited a balance sheet 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);
7.1.3 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 Corporation, a statement showing the number of shares of each class of capital stock outstanding at the end of the period, and the number of shares of issued stockholder’s equity compensation awards and equity compensation awards not yet issued but reserved for issuance, if any, all in sufficient detail as to permit the Stockholder to calculate its percentage equity ownership in the Corporation, and certified by the chief financial officer or chief executive officer of the Corporation as being true, complete, and correct; and
7.1.4 as soon as practicable, but in any event within thirty (30) days of the end of each month, an unaudited income statement for such month, and an unaudited balance sheet as of the end of such monthyear and a statement of cash flows for such fiscal year, all 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 and (ii) not contain all notes thereto that may be required in accordance with GAAPgenerally accepted accounting principles), and such financial statements will be accompanied by a report and opinion thereon by independent public accountants selected by the Company’s Board of Directors within one hundred twenty (120) days after the end of each fiscal year;
(b) as soon as practicable but in no event more than forty-five (45) days after the end of each of the first three quarters of each fiscal year of the Company, an unaudited income statement, balance sheet and statement of cash flows for and as of the end of each such quarter, such unaudited financial statements to be in reasonable detail; and
(c) as soon as practicable after the end of each month, and in any event within thirty (30) days after the end of each month, an unaudited consolidated balance sheet of the Company as of the end of such monthly period, and unaudited consolidated statements of income and cash flows of the Company and its subsidiaries, if any, for such period, prepared in accordance with generally accepted accounting principles.
Appears in 1 contract
Delivery of Financial Statements. So long as a Founder (and/or her applicable Founder Group) hold at least 10,000 shares of Class A Common Stock (subject to appropriate adjustment in the event of any stock dividend, stock split, combination or other similar recapitalization with respect to the Class A Common Stock), the Corporation The Company shall deliver to each Major Investor, provided that the Board of Directors has not reasonably determined that such StockholdersMajor Investor is a competitor of the Company:
7.1.1 (a) as soon as practicable, but in any event within one hundred twenty eighty (120180) days after the end of each fiscal year of the CorporationCompany or such later date as may be approved by the Majority Preferred Directors, its (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, 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 Stockholdersstockholders’ equity as of the end of such year, all such financial statements prepared in accordance with GAAP, audited and certified by independent public accountants of nationally recognized standing selected by the CorporationCompany;
7.1.2 (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 CorporationCompany, unaudited statements of income and of cash flows for the portion of the fiscal year ending on the expiry of such fiscal quarter, and a comparison between (x) the actual amounts as of and for such period and (y) the comparable amounts for the same period in the prior fiscal year and as included in the Budget, and an unaudited balance sheet and a statement of stockholders’ equity as of the end of such fiscal quarter, all prepared in accordance with GAAP (except that such financial statements may (i) be subject to normal year-end audit adjustments; adjustments and (ii) not contain all notes thereto that may be required in accordance with GAAP);
7.1.3 (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 Corporationupon request by a Major Investor, a statement showing the number of shares of each class of capital stock and series and securities convertible into or exercisable for shares outstanding at the end of the periodmost recently completed fiscal quarter, 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 equity compensation awards stock options and equity compensation awards stock options not yet issued but reserved for issuance, if any, all in sufficient detail as to permit the Stockholder Major Investors to calculate its their respective percentage equity ownership in the Corporation, and certified by the chief financial officer or chief executive officer of the Corporation as being true, complete, and correct; andCompany;
7.1.4 (d) as soon as practicable, but in any event within thirty (30) days of after the end of each monthmonth or such later date as may be approved by the Majority Preferred Directors, an unaudited statements of income statement and 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);
(i) as soon as practicable, but in any event thirty (30) days before the end of each fiscal year, a draft 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 (collectively, the “Budget”), (ii) as soon as practicable, but in any event within fifteen (15) days after the end of each such fiscal year, a final Budget approved by the Board of Directors, and (iii) any other budgets or revised budgets prepared by the Company and approved by the Board, promptly following such approval by the Board; 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; 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) (ii), the disclosure of which would adversely affect the attorney-client privilege between the Company and its counsel, or (iii) if the Company has reasonably determined that such Major Investor is a competitor of the Company. If, for any period, the Company has any subsidiary whose accounts are consolidated with those of the Company, then in respect of such period the financial statements delivered pursuant to the foregoing sections shall be the consolidated and consolidating financial statements of the Company and all such consolidated subsidiaries. Notwithstanding anything else in this 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 thirty (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
Sources: Investors’ Rights Agreement (Decipher Biosciences, Inc.)
Delivery of Financial Statements. So long as a Founder (and/or her applicable Founder Groupa) hold at least 10,000 shares of Class A Common Stock (subject to appropriate adjustment in the event of any stock dividend, stock split, combination or other similar recapitalization with respect to the Class A Common Stock), the Corporation The Company shall deliver to such Stockholderseach Major Investor, in a format specified by Golden Seeds LLC, or any successor entity thereto:
7.1.1 (i) as soon as practicable, but in any event within one hundred twenty (120) 90 days after the end of each fiscal year of the CorporationCompany, its (iA) a balance sheet as of the end of such year, (iiB) statements of income and of cash flows for such year, and a comparison between (iii1) the actual amounts as of and for such fiscal year and (2) the comparable amounts for the prior year and as included in the Budget (as defined in Section 3.1(v)) 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 (C) a statement of Stockholdersstockholders’ equity as of the end of such year, all such financial statements prepared in accordance with GAAP, audited and certified by independent public accountants of nationally recognized standing selected by the CorporationCompany, copies of which shall also be provided to ClearMomentum, Inc. (“ClearMomentum”) or any successor thereof, as specified by Golden Seeds LLC and subject to Section 3.4;
7.1.2 (ii) as soon as practicable, but in any event within forty-five (45) 60 days after the end of each of the first three (3) quarters of each fiscal year of the CorporationCompany, (A) unaudited statements of income and of cash flows for such fiscal quarter, and a comparison between (1) the actual amounts as of and for such fiscal quarter and (2) the comparable amounts for such fiscal quarter as included in the Budget for the applicable fiscal year and (B) an unaudited balance sheet and a statement of stockholders’ equity as of the end of such fiscal quarter, all prepared in accordance with GAAP (except that such financial statements may (iA) be subject to normal year-end audit adjustments; adjustments and (iiB) not contain all notes thereto that may be required in accordance with GAAP), copies of which shall also be provided to ClearMomentum or any successor thereof, as specified by Golden Seeds LLC or any successor entity thereto and subject to Section 3.4;
7.1.3 (iii) such other information relating to the financial condition, business, prospects, or corporate affairs of the Company as determined by the Board of Directors;
(iv) 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 Corporation, a statement showing the number of shares of each class of capital stock outstanding at the end of the period, and the number of shares of issued equity compensation awards and equity compensation awards not yet issued but reserved for issuance, if any, all in sufficient detail as to permit the Stockholder to calculate its percentage equity ownership in the Corporation, and certified by the chief financial officer or chief executive officer of the Corporation as being true, complete, and correct; and
7.1.4 as soon as practicable, but in any event within thirty (30) 45 days of the end of each month, (A) an unaudited income statement and statement of cash flows for such month, and a comparison between (1) the actual amounts as of and for such month and (2) the comparable amounts for such month as included in the Budget for the applicable fiscal year and (B) 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 (iA) be subject to normal year-end audit adjustments and (iiB) not contain all notes thereto that may be required in accordance with GAAP);
(v) as soon as practicable, but in any event 30 days before the end of each fiscal year, a budget and business plan for the next fiscal year (collectively, the “Budget”), which shall include, without limitation, forecasts of the Company’s revenues, expenses and cash position on a month-to-month basis, 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
(vi) as soon as practicable, but in any event within 45 days of the end of each month, and upon the final closing under the Purchase Agreement and upon each closing of future financings by the Company, the Company’s capitalization table in a format specified by Golden Seeds LLC or any successor entity thereto, a copy of which shall also be provided to ClearMomentum or any successor thereof, as specified by Golden Seeds LLC or any successor entity thereto and subject to Section 3.4.
(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.
(c) 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 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 (Cognition Therapeutics Inc)
Delivery of Financial Statements. So long as a Founder (and/or her applicable Founder Group) hold at least 10,000 shares of Class A Common Stock (subject to appropriate adjustment in the event of any stock dividend, stock split, combination or other similar recapitalization with respect to the Class A Common Stock), the Corporation The Company shall deliver to such Stockholderseach Major Investor:
7.1.1 (a) as soon as practicable, but in any event within one hundred twenty (120) days after the end of each fiscal year of the CorporationCompany, its (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 Stockholdersstockholders’ equity as of the end of such year, all such financial statements prepared in accordance with GAAP, audited and certified by independent public accountants of nationally at least locally recognized standing selected by the CorporationCompany;
7.1.2 (b) with the delivery of the financial statements called for in subsection (a) of this Section 3.1, a certificate executed by the Chief Financial Officer of the Company certifying the Company’s continuing compliance with the terms and conditions of the Transaction Documents nad the the Restated Charter (each as defined in the Purchase Agreement);
(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 (collectively, the “Budget”), approved by the Board of Directors (including at least one Series A Director if then in office) and prepared on a monthly basis, including balance sheets, income statements, and statements of cash flow for such months, forecasts for the next three fiscal years, and, promptly after prepared, any other budgets or revised budgets prepared by the Company;
(d) as soon as practicable, but in any event within forty-five (45) days after the end of each of the first three (3) quarters of each fiscal year of the CorporationCompany, unaudited statements of income and of cash flows for such fiscal quarter, and an unaudited balance sheet and a statement of stockholders’ equity as of the end of such fiscal quarter, all prepared in accordance with GAAP (except that such financial statements may (i) be subject to normal year-end audit adjustments; adjustments and (ii) not contain all notes thereto that may be required in accordance with GAAP), and a management discussion and analysis describing material activities and events that occurred in such quarter and discussing major variances from the budgets provided pursuant to Section 3.1(b);
7.1.3 as soon as practicable, but in any event within forty-five (45e) days after the end of each of the first three (3) quarters of each fiscal year of the Corporation, a statement showing the number of shares of each class of capital stock outstanding at the end of the period, and the number of shares of issued equity compensation awards and equity compensation awards not yet issued but reserved for issuance, if any, all in sufficient detail as to permit the Stockholder to calculate its percentage equity ownership in the Corporation, and certified by the chief financial officer or chief executive officer of the Corporation as being true, complete, and correct; and
7.1.4 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);
(f) with respect to the financial statements called for in Section 3.1(a), Section 3.1(d) and Section 3.1(e), an instrument executed by the chief financial officer and chief executive officer of the Company certifying that such financial statements were prepared in accordance with GAAP consistently applied with prior practice for earlier periods (except as otherwise set forth in Section 3.1(d) and Section 3.1(e)) and fairly present the financial condition of the Company and its results of operation for the periods specified therein;
(g) such other information relating to the financial condition, business, prospects, 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 (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.
(h) all communications with other stockholders or the financial community, including press releases;
(i) all material reports prepared for the Company by outside consultants, lawyers, and auditors, excluding (i) information that if delivered to the Major Investors could adversely affect the attorney-client privilege between the Company and its counsel with respect to such information, and (ii) disclosure that would result in a conflict of interest, or the disclosure of trade secrets or confidential patient information;
(j) all material communications with and from federal or state regulatory agencies or other governmental authorities of any kind, excluding (i) any and all material communications with the United States government that are deemed classified, (ii) material communications with the Federal Drug Administration, the disclosure of which could adversely effect the Company, (iii) information that if delivered to the Major Investors could adversely affect the attorney-client privilege between the Company and its counsel with respect to such information, or (iv) any disclosure that would result in a conflict of interest or the disclosure of trade secrets or confidential patient information;
(k) notice of any material events, including any pending or threatened litigation;
(l) subject to applicable confidentiality obligations of the Company in connection therewith, written communications with and from any companies interested in acquiring the Company (or any material portion thereof) or forming strategic relationships; and
(m) prompt notice of any material defaults under any of the Company’s debt agreements, together with copies of any default notices in connection therewith. If, for any period, the Company has any subsidiary whose accounts are consolidated with those of the Company, then in respect of such period the financial statements delivered pursuant to the foregoing sections shall be the consolidated and consolidating financial statements of the Company and all such consolidated subsidiaries. Notwithstanding anything else in this Subsection 3.1 to the contrary, (i) the Company may cease providing the information set forth in this Subsection 3.1 during the period starting with the date sixty (60) days before the Company’s good-faith estimate of the date of filing of a registration statement if it reasonably concludes it must do so to comply with the SEC rules applicable to such registration statement and related offering; provided that the Company’s covenants under this Subsection 3.1 shall be reinstated at such time as the Company is no longer actively employing its commercially reasonable efforts to cause such registration statement to become effective; and (ii) the Company’s covenants under this Subsection 3.1 shall be suspended during any period in which the Company’s financial statements are publicly reported on a consolidated basis with the financial statements of Parent.
Appears in 1 contract
Delivery of Financial Statements. So long as a Founder (and/or her applicable Founder Group) hold at least 10,000 shares of Class A Common Stock (subject to appropriate adjustment in the event of any stock dividend, stock split, combination or other similar recapitalization with respect to the Class A Common Stock), the Corporation The Company shall deliver to such Stockholderseach Major Investor:
7.1.1 (a) as soon as practicable, but in any event within one one-hundred twenty (120) days after the end of each fiscal year of the Corporation, its 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(d)) for such year, with an explanation of any material differences between such amounts and a schedule as to the sources and applications of funds for such year, and (iii) a statement of Stockholdersstockholders’ equity as of the end of such year, all such financial statements prepared in accordance with GAAP, audited and certified by independent public accountants of nationally at least regionally recognized standing selected by the CorporationCompany and approved by the Board of Directors; provided that the Requisite Preferred Holders may waive in writing the delivery of audited financial statements for any fiscal year, in which case the Company shall deliver unaudited financial statements by the later of (A) ninety (90) days following the end of the fiscal year or (B) fifteen (15) days following the effective date of the waiver;
7.1.2 (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 CorporationCompany, 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 (i) be subject to normal year-end audit adjustments; and (ii) not contain all notes thereto that may be required in accordance with GAAP);
7.1.3 (c) as soon as practicable, but in any event within forty-five (45) days after the end of each of the first three (3) quarters quarter of each fiscal year of the CorporationCompany, 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 equity compensation awards stock options and equity compensation awards stock options not yet issued but reserved for issuance, if any, all in sufficient detail as to permit the Stockholder Major Investors to calculate its their respective percentage equity ownership in the Corporation, and certified by the chief financial officer or chief executive officer of the Corporation as being true, complete, and correct; andCompany;
7.1.4 (d) as soon as practicable, but in any event within before the end of each fiscal year, a budget and business plan for the next fiscal year (collectively, the “Budget”), approved by the Board of Directors and prepared on a quarterly basis, including balance sheets, income statements, and statements of cash flow for such months and, promptly after prepared, any other budgets or revised budgets prepared by the Company; and
(e) [reserved]
(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 a form reasonably acceptable to the Company); or (ii) the disclosure of which would adversely affect the attorney-client privilege between the Company and its counsel. If, for any period, the Company has any subsidiary whose accounts are consolidated with those of the Company, then in respect of such period the financial statements delivered pursuant to the foregoing sections shall be the consolidated and consolidating financial statements of the Company and all such consolidated subsidiaries. Notwithstanding anything else in this Subsection 3.1 to the contrary, the Company may cease providing the information set forth in this Subsection 3.1 during the period starting with the date thirty (30) days before the Company’s good-faith estimate of the end date of each month, an unaudited income filing of a registration statement for if it reasonably concludes it must do so to comply with the SEC rules applicable to such month, registration statement and an unaudited balance sheet related offering; provided that the Company’s covenants under this Subsection 3.1 shall be reinstated at such time as of the end of Company is no longer actively employing its commercially reasonable efforts to cause such month, all prepared in accordance with GAAP (except that such financial statements may (i) be subject registration statement to normal year-end audit adjustments and (ii) not contain all notes thereto that may be required in accordance with GAAP)become effective.
Appears in 1 contract
Sources: Investors’ Rights Agreement (Werewolf Therapeutics, Inc.)
Delivery of Financial Statements. So long as a Founder (and/or her applicable Founder Group) hold at least 10,000 shares of Class A Common Stock (subject The Company shall use its best efforts to appropriate adjustment in the event of any stock dividend, stock split, combination or other similar recapitalization with respect to the Class A Common Stock), the Corporation shall deliver to such StockholdersSprott:
7.1.1 as soon as practicable, but in any event (i) within one hundred twenty (120) 45 days after the end of each fiscal year of the CorporationCompany, its (iA) an unaudited balance sheet as of the end of such year, (iiB) unaudited statements of income and of cash flows for such year, and (iiiC) an unaudited statement of Stockholdersstockholders’ equity as of the end of such year, all such and (D) promptly upon completion of the audit of the financial statements prepared described in accordance (A) through (C) of this paragraph, which shall be completed no later than 60 days after the end of each fiscal year of the Company, such audited financial statements, with GAAP, an explanation of any material differences between such unaudited and audited and certified by independent public accountants of nationally recognized standing selected by the Corporationfinancial statements;
7.1.2 as soon as practicable, but in any event (ii) within fortythirty-five (4535) days after the end of each of the first three (3) quarters of each fiscal year of the CorporationCompany, unaudited statements of income and of cash flows for such fiscal quarter, and an unaudited balance sheet as of the end of such fiscal quarter, all prepared in accordance with GAAP (except that such financial statements may (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 reviewed by the auditors of the Company; and
7.1.3 as soon as practicable, but in any event within forty(iii) thirty-five (4535) days after the end of each of the first three (3) quarters of each fiscal year of the CorporationCompany, 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 equity compensation awards stock options and equity compensation awards stock options not yet issued but reserved for issuance, if any, all in sufficient detail as to permit the Stockholder Sprott to calculate its percentage equity ownership in the Corporation, and certified by the chief financial officer or chief executive officer of the Corporation as being true, complete, and correct; and
7.1.4 as soon as practicable, but in any event within thirty (30) days of the end of each month, an unaudited income statement for such month, and an unaudited balance sheet as of the end of such month, all prepared in accordance with GAAP (except that such financial statements may (i) be subject to normal year-end audit adjustments and (ii) not contain all notes thereto that may be required in accordance with GAAP)Company.
Appears in 1 contract
Sources: Letter Agreement (Independence Contract Drilling, Inc.)
Delivery of Financial Statements. So long as such Investor is a Founder Major Investor, the Company shall deliver to (and/or her applicable Founder Groupi) hold at least 10,000 shares each of Class A Common Stock the Permira Investor, IVP, KPCB, GPI and FP and (subject to appropriate adjustment in the event of any stock dividendii) FT, stock split▇▇▇▇▇▇▇▇▇, combination or other similar recapitalization TCV, TA Associates, WCP, and Cross Creek only with respect to the Class A Common Stock)financial statements in Subsections (a) and (b) of this Section 3.1 (each, the Corporation shall deliver to such Stockholders:an “Information Rights Party”):
7.1.1 (a) as soon as practicable, but in any event within one hundred twenty (120) days after the end of each fiscal year of the CorporationCompany, its (i) a balance sheet and income statement as of the end last day of such year, (ii) statements a statement of income stockholders’ equity and of cash flows for such year, year and (iii) statement of Stockholders’ equity as of a comparison between the end of actual figures for such year, all the comparable figures for the prior year and the comparable figures included in the Budget (as defined below) for such year, with an explanation of any material differences between them 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 (except that the financial report may (i) be subject to normal year-end audit adjustments and (ii) not contain all notes thereto which may be required in accordance with GAAP), and audited and certified by independent public accountants of nationally recognized standing selected by the CorporationCompany;
7.1.2 (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 CorporationCompany, an unaudited statements income statement, schedule as to the sources and application of income and cash flows funds for such fiscal quarter, and an unaudited balance sheet and a statement of stockholders’ equity and cash flows as of the end of such fiscal quarter, all prepared in accordance with GAAP (except that such financial statements may (i) be subject to normal year-end audit adjustments; and (ii) not contain all notes thereto that may be required in accordance with GAAP);
7.1.3 (c) as soon as practicable, but in any event within with forty-five (45) days after the end of each of the first three (3) quarters of each fiscal year of the CorporationCompany, 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 and number of shares of issued equity compensation awards stock options and equity compensation awards stock options not yet issued but reserved for issuance, if any, all in sufficient detail as to permit the Stockholder Investors with Registrable Securities to calculate its percentage equity ownership in the Corporation, Company and certified by the chief financial officer Chief Financial Officer or chief executive officer Chief Executive Officer of the Corporation Company as being true, complete, complete and correct; and;
7.1.4 (d) as soon as practicable, but in any event within thirty (30) days of following the end of each month, an unaudited income statement, statement for such monthof stockholders’ equity and cash flows, and an unaudited balance sheet profit or loss statement;
(e) as of soon as practicable, but in any event thirty (30) days prior to the end of each fiscal year, a budget and business plan for the next fiscal year (collectively, the “Budget”), prepared on a monthly basis, including balance sheets and sources and applications of funds statements for such monthmonths and, all as soon as prepared, any other budgets or revised budgets prepared by the Company;
(f) with respect to the financial statements called for in Subsections (a), (b) and (c) of this Section 3.1, an instrument executed by the Chief Financial Officer and President or Chief Executive Officer of the Company and certifying that such financials were prepared in accordance with GAAP consistently applied with prior practice for earlier periods (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 periods specified therein, subject to normal year-end audit adjustments and adjustment;
(g) such other information relating to the financial condition, business, prospects or corporate affairs of the Company as an Information Rights Party may from time to time reasonably request, provided, however, that the Company shall not be obligated under this Subsection (g) or any other subsection of Section 3.1 to (i) provide information which the Company reasonably deems in good faith to be a trade secret or similar confidential information (unless covered by an enforceable confidentiality agreement, in form acceptable to the Company) or (ii) not contain would adversely affect the attorney-client privilege between the Company and its counsel;
(h) if for any period the Company shall have any subsidiary whose accounts are consolidated with those of the Company, then in respect of such period the financial statements delivered pursuant to the foregoing sections shall be the consolidated and consolidating financial statements of the Company and all notes thereto such consolidated subsidiaries;
(i) promptly following receipt by the Company, each audit response letter, accountant’s management letter and other written report submitted to the Company by its independent public accountants in connection with an annual or interim audit of the books of the Company or any of its subsidiaries; and
(j) promptly after the commencement thereof, notice of all actions, suits, claims, proceedings, investigations and inquiries that may be required in accordance with GAAP)could materially and adversely affect the Company or any of its subsidiaries, if any.
Appears in 1 contract
Delivery of Financial Statements. So long as a Founder (and/or her applicable Founder Group) hold at least 10,000 shares of Class A Common Stock (subject to appropriate adjustment in the event of any stock dividend, stock split, combination or other similar recapitalization with respect to the Class A Common Stock), the Corporation The Company shall deliver to such Stockholderseach Major Investor:
7.1.1 (a) as soon as practicable, but in any event within one hundred twenty (120) 45 days after the end of each fiscal year of the Corporation, its 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 (as defined below) for such year, with an explanation of any material differences between such amounts and a schedule as to the sources and applications of funds for such year, and (iii) a statement of stockholders’ equity as of the end of such year, all prepared in accordance with GAAP (except that such financial statements may (1) be subject to normal year-end audit adjustments; and (2) not contain all notes thereto that may be required in accordance with GAAP);
(b) as soon as practicable, but in any event within 120 days after the end of each fiscal year of the Company (i) a balance sheet as of the end of such year, (ii) statements of income and of cash flows for such year, and a comparison between (x) the actual amounts as of and for such fiscal year and (y) the comparable amounts for the prior year and as included in the Budget (as defined below) for such year, with an explanation of any material differences between such amounts and a schedule as to the sources and applications of funds for such year, and (iii) a statement of Stockholdersstockholders’ equity as of the end of such year, all such financial statements prepared in accordance with GAAP, audited and certified by independent public accountants of nationally recognized standing selected by the CorporationCompany;
7.1.2 (c) as soon as practicable, but in any event within forty-five (45) 45 days after the end of each of the first three (3) quarters of each fiscal year of the CorporationCompany, (i) unaudited statements of income and cash flows for such fiscal quarter, and a comparison between (x) the actual amounts as of and for such fiscal quarter and (y) the comparable amounts for the prior quarter and as included in the Budget (as defined in below) for such quarter, with an explanation of any material differences between such amounts and a schedule as to the sources and applications of funds for such quarter, and (ii) an unaudited balance sheet 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 (i1) be subject to normal year-end audit adjustments; and (ii2) not contain all notes thereto that may be required in accordance with GAAP);
7.1.3 (d) as soon as practicable, but in any event within forty-five (45) days after the end of each of the first three (3) quarters of each fiscal year of the Corporation, a statement showing the number of shares of each class of capital stock outstanding at the end of the period, and the number of shares of issued equity compensation awards and equity compensation awards not yet issued but reserved for issuance, if any, all in sufficient detail as to permit the Stockholder to calculate its percentage equity ownership in the Corporation, and certified by the chief financial officer or chief executive officer of the Corporation as being true, complete, and correct; and
7.1.4 as soon as practicable, but in any event within thirty (30) 30 days of the end of each month, (i) an unaudited income statement and statement of cash flows for such month, and a comparison between (x) the actual amounts as of and for such month and (y) the comparable amounts for the prior month and as included in the Budget (as defined below) for such month, with an explanation of any material differences between such amounts and a schedule as to the sources and applications of funds for such month, and (ii) 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 (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
(e) as soon as practicable, but in any event 30 days before the end of each fiscal year, a budget and business plan for the next fiscal year (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. If, for any period, the Company has any subsidiary whose accounts are consolidated with those of the Company, then in respect of such period the financial statements delivered pursuant to the foregoing sections shall be the consolidated and consolidating financial statements of the Company and all such consolidated subsidiaries. Notwithstanding anything else in this Subsection 3.1 to the contrary, the Company may cease providing the information set forth in this Subsection 3.1 during the period starting with the date 60 days before the Company’s good-faith estimate of the date of filing of a registration statement if it reasonably concludes it must do so to comply with the SEC rules applicable to such registration statement and related offering; provided that the Company’s covenants under this Subsection 3.1 shall be reinstated at such time as the Company is no longer actively employing its commercially reasonable efforts to cause such registration statement to become effective.
Appears in 1 contract
Sources: Investors’ Rights Agreement (Stoke Therapeutics, Inc.)
Delivery of Financial Statements. So long as a Founder (and/or her applicable Founder Group) hold at least 10,000 shares of Class A Common Stock (subject to appropriate adjustment in the event of any stock dividend, stock split, combination or other similar recapitalization with respect to the Class A Common Stock), the Corporation The Company shall deliver to such Stockholderseach Major Investor:
7.1.1 (a) as soon as practicable, but in any event within one hundred twenty (120) days after the end of each fiscal year of the Corporation, its Company (i) an audited balance sheet as of the end of such year, (ii) statements an audited statement of income and of cash flows for such year, and (iii) an audited statement of Stockholdersstockholders’ equity as of the end of such yearyear commencing with the fiscal year ending March 31, all such financial statements 2021, together with the auditor’s report thereon and notes thereto prepared in accordance with US GAAP, audited and certified by independent public accountants of nationally recognized standing selected by the Corporation;
7.1.2 (b) as soon as practicable, but in any event within fortysixty (60) days after the end of each fiscal year of the Company (i) an unaudited audited balance sheet as of the end of such year, (ii) an unaudited statement of income for such year, and (iii) an unaudited statement of stockholders’ equity as of the end of such year commencing with respect to the fiscal year ending March 31, 2021, all prepared in accordance with US GAAP (except that such financial statements may be subject to income tax and normal year-five end audit adjustments);
(45c) as soon as practicable, but in any event within sixty (60) days after the end of each of the first three (3) fiscal quarters of each fiscal year of the CorporationCompany, unaudited statements of income and cash flows for such fiscal quarter, and an unaudited balance sheet as of the end of such fiscal quarter, all prepared in accordance with US GAAP (except that such financial statements may (i) be subject to income tax and normal year-end audit adjustments; and (ii) not contain all notes thereto that may be required in accordance with US GAAP);
7.1.3 (d) as soon as practicable, but in any event within forty-five sixty (4560) days after the end of each of the first three (3) fiscal quarters of each fiscal year of the CorporationCompany, 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 equity compensation awards stock options and equity compensation awards stock options not yet issued but reserved for issuance, if any, and the equivalent information for each Subsidiary of the Company, all in sufficient detail as to permit the Stockholder Major Investors to calculate its their respective direct and indirect percentage equity ownership in the CorporationCompany and in each such Subsidiary, and certified by the chief financial officer or chief executive officer of the Corporation Company or a Subsidiary of the Company, as being true, complete, and correct; and;
7.1.4 (e) as soon as practicable, but in any event within sixty (60) days before the end of each fiscal year (commencing with the fiscal year ended March 31, 2021), a budget and business plan for the next fiscal year, including an income statement, and any material revisions to the budget prepared by the Company and provided pursuant to this Section 4.1(d); and
(f) such other information relating to the financial condition, business, prospects, or corporate affairs of the Company or any of its Subsidiaries as any Major Investor may from time to time reasonably request to facilitate their accounting purposes; provided, however, that the Company shall not be obligated under this Section 4.1 to provide information (i) that the Company reasonably determines in good faith and upon written advice from counsel to be a trade secret or confidential information (unless covered by an enforceable confidentiality agreement, in a form acceptable to the Company); or (ii) the disclosure of which would adversely affect the attorney-client privilege between the Company and its counsel. At the request of, and at the expense of, any Major Investor, the Company shall provide supporting US GAAP to IFRS reconciliation schedules. 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 4.1 to the contrary, the Company may cease providing the information set forth in this Section 4.1 during the period starting with the date thirty (30) days before the Company’s good-faith estimate of the end date of each monththe earlier of the confidential submission or filing of a registration statement if it reasonably concludes it must do so to comply with the SEC rules applicable to such registration statement and related offering; provided that the Company’s covenants under this Section 4.1 shall be reinstated at such time as the Company is no longer actively employing its reasonable best efforts to cause such registration statement to become effective. Notwithstanding anything to the contrary in this agreement, an unaudited income statement for such monthor any other applicable agreements of the Company, the Company shall not be required to and will not provide to the Major Investors, and an unaudited balance sheet the Major Investors shall not request from the Company, any “Material Nonpublic Technical Information”, as such term is defined in Section 721 of the end Defense Production Act of such month1950, all prepared in accordance with GAAP (except that such financial statements may (i) be subject to normal year-end audit adjustments as amended by the Foreign Investment Risk Review Modernization Act of 2018 and (ii) not contain all notes thereto that any United States federal rules or regulations promulgated thereunder, as may be required amended, modified, supplemented or replaced from time to time. The Company shall, and cause each of its Subsidiaries to, reasonably cooperate in accordance with GAAP)any asset valuation exercise undertaken by any Major Investor.
Appears in 1 contract
Sources: Investors’ Rights Agreement (Roivant Sciences Ltd.)
Delivery of Financial Statements. So long as a Founder (and/or her applicable Founder Group) hold at least 10,000 shares of Class A Common Stock (subject to appropriate adjustment in the event of any stock dividend, stock split, combination or other similar recapitalization with respect to the Class A Common Stock), the Corporation The Company shall deliver to each Major Investor30[, provided that the Board of Directors has not reasonably determined that such StockholdersMajor Investor is a competitor of the Company31]:
7.1.1 (a) as soon as practicable, but in any event within one [ninety (90)-one hundred twenty (120) )] days after the end of each fiscal year of the CorporationCompany, its (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, 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 Stockholdersstockholders’ equity as of the end of such year[, all such financial statements prepared in accordance with GAAP, audited and certified by independent public accountants of nationally recognized standing selected by the CorporationCompany];32
(b) as soon as practicable, but in any event within forty‑five (45) days after the end of each of the first three (3) quarters of each fiscal year of the Company, unaudited statements of income and of cash flows for such fiscal quarter, and an unaudited balance sheet [and a statement of stockholders’ equity] as of the end of such fiscal quarter, all prepared in accordance with GAAP (except that such financial statements may (i) be subject to normal year-end audit adjustments and (ii) not contain all notes thereto that may be required in accordance with GAAP);
7.1.2 (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 Corporation, unaudited statements of income and cash flows for such fiscal quarter, and an unaudited balance sheet as of the end of such fiscal quarter, all prepared in accordance with GAAP (except that such financial statements may (i) be subject to normal year-end audit adjustments; and (ii) not contain all notes thereto that may be required in accordance with GAAP);
7.1.3 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 CorporationCompany, 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 equity compensation awards stock options and equity compensation awards stock options not yet issued but reserved for issuance, if any, all in sufficient detail as to permit the Stockholder Major Investors to calculate its their respective percentage equity ownership in the CorporationCompany, and certified by the chief financial officer or chief executive officer of the Corporation Company as being true, complete, and correct; and];
7.1.4 (d) as soon as practicable, but in any event within thirty (30) days of the end of each month, an unaudited income statement [and statement of cash flows] for such month, and an unaudited balance sheet [and statement of stockholders’ equity] as of the end of such month, all prepared in accordance with GAAP (except that such financial statements may (i) be subject to normal year-end audit adjustments and (ii) not contain all notes thereto that may be required in accordance with GAAP);]
(e) as soon as practicable, but in any event thirty (30) days before the end of each fiscal year, a budget and business plan for the next fiscal year (collectively, the “Budget”), [approved by the Board of Directors and] prepared on a 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) with respect to the financial statements called for in Section 3.1(a), Section 3.1(b) [and Section 3.1(d)], an instrument executed by the chief financial officer and chief executive officer of the Company certifying that such financial statements were prepared in accordance with GAAP consistently applied with prior practice for earlier periods (except as otherwise set forth in Section 3.1(b) [and Section 3.1(d)]) and fairly present the financial condition of the Company and its results of operation for the periods specified therein; and] [(g) such other information33 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 (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 [thirty (30) - 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
Delivery of Financial Statements. So long as a Founder (and/or her applicable Founder Group) hold at least 10,000 shares of Class A Common Stock (subject to appropriate adjustment in the event of any stock dividend, stock split, combination or other similar recapitalization with respect to the Class A Common Stock), the Corporation The Company shall deliver to each Major Investor, provided that the Board of Directors has not reasonably determined that such StockholdersMajor Investor is a Competitor of the Company:
7.1.1 (a) as soon as practicable, but in any event within one hundred twenty (120) 120 days after the end of each fiscal year of the CorporationCompany, its (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 Stockholdersstockholders’ equity as of the end of such year, all such financial statements prepared in accordance with GAAP, audited and certified by independent public accountants of nationally recognized standing selected by the Corporation;
7.1.2 (b) as soon as practicable, but in any event within forty-five (45) 45 days after the end of each of the first three (3) quarters of each fiscal year of the CorporationCompany, 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 (i) be subject to normal year-end audit adjustments; and (ii) not contain all notes thereto that may be required in accordance with GAAP);
7.1.3 (c) as soon as practicable, but in any event within forty-five (45) 45 days after the end of each of the first three (3) quarters of each fiscal year of the CorporationCompany, (i) 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 equity compensation awards stock options and equity compensation awards stock options not yet issued but reserved for issuance, if any, all in sufficient detail as to permit the Stockholder Major Investors to calculate its their respective percentage equity ownership in the CorporationCompany, and certified by (ii) the chief financial officer or chief executive officer of the Corporation as being true, complete, and correctCompany’s most recent 409(a) valuation report; and
7.1.4 (d) as soon as practicable, but in any event within thirty (30) 30 days of before the end of each monthfiscal year, an unaudited a budget and business plan for the next fiscal year approved by the Board of Directors, including two of the Preferred Directors (or, if fewer, such number of Preferred Directors as there are then serving) (collectively, the “Budget”), prepared on a quarterly basis, including balance sheets, income statement statements, and statements of cash flow for such monthfiscal quarter and, and an unaudited balance sheet as promptly after prepared, any other budgets or revised budgets prepared by the Company. If, for any period, the Company has any subsidiary whose accounts are consolidated with those of the end Company, then in respect of such month, all prepared in accordance with GAAP (except that 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 (i) cease providing the information set forth in this Section 3.1 during the period starting with the date 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 subject reinstated at such time as the Company is no longer actively employing its commercially reasonable efforts to normal year-end audit adjustments and (ii) not contain all notes thereto that may be required in accordance with GAAP)cause such registration statement to become effective.
Appears in 1 contract
Delivery of Financial Statements. So long as a Founder (and/or her applicable Founder Group) hold at least 10,000 shares of Class A Common Stock (subject to appropriate adjustment in the event of any stock dividend, stock split, combination or other similar recapitalization with respect to the Class A Common Stock), the Corporation The Company shall deliver to such Stockholderseach Investor:
7.1.1 (a) as soon as practicable, but in any event within one hundred twenty (120) days after the end of each fiscal year of the Corporation, its 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(c)) 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 Stockholdersstockholders’ equity as of the end of such year, all such financial statements prepared in accordance with GAAP, audited and certified by independent public accountants of nationally recognized standing selected by the CorporationCompany;
7.1.2 (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 CorporationCompany, 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 (i) be subject to normal year-end audit adjustments; and (ii) not contain all notes thereto that may be required in accordance with GAAP);
7.1.3 (c) as soon as practicable, but in any event within forty-five (45) days after the end of each of the first three (3) quarters quarter of each fiscal year of the CorporationCompany, a statement 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, period and the number of shares of issued equity compensation awards stock options and equity compensation awards stock options not yet issued but reserved for issuance, if any, all in sufficient detail as to permit the Stockholder to calculate its percentage equity ownership in the Corporation, and certified by the chief financial officer or chief executive officer of the Corporation as being true, complete, and correct; and;
7.1.4 (d) as soon as practicable, but in any event within thirty (30) days before the beginning of each fiscal year, a capital and operating budget for the next fiscal year (collectively, the “Budget”) and prepared on a quarterly basis, including balance sheets, income statements, and statements of cash flow for such quarters and, promptly after prepared, any other budgets or revised budgets prepared by the Company; and
(e) such other information relating to the financial condition, business, prospects, or corporate affairs of the end of each monthCompany as any Investor may from time to time reasonably request; provided, an unaudited income statement for such monthhowever, and an unaudited balance sheet as of that the end of such month, all prepared in accordance with GAAP (except that such financial statements may Company shall not be obligated under this Subsection 3.1 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 reasonably acceptable to normal year-end audit adjustments and the Company); or (ii) not contain 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 notes thereto such consolidated subsidiaries. Notwithstanding anything else in this Subsection 3.1 to the contrary, the Company may cease providing the information set forth in this Subsection 3.1 during the period starting with the date thirty (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 may the Company’s covenants under this Subsection 3.1 shall be required in accordance with GAAP)reinstated at such time as the Company is no longer actively employing its commercially reasonable best efforts to cause such registration statement to become effective.
Appears in 1 contract
Sources: Investors' Rights Agreement (Spark Therapeutics, Inc.)
Delivery of Financial Statements. So long as a Founder (and/or her applicable Founder Group) hold at least 10,000 shares of Class A Common Stock (subject to appropriate adjustment in the event of any stock dividend, stock split, combination or other similar recapitalization with respect to the Class A Common Stock), the Corporation The Company shall deliver to such Stockholderseach Major Investor:
7.1.1 (a) as soon as practicable, but in any event within one hundred twenty eighty (120180) days after the end of each fiscal year of the Corporation, its 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) statement of Stockholders’ equity as of the end of such year, all such financial statements audited and prepared in accordance with GAAP, audited and certified by independent public accountants of nationally recognized standing selected by the Corporation;
7.1.2 (b) as soon as practicable, but in any event within forty-five sixty (4560) days after the end of each of the first three (3) quarters of each fiscal year of the CorporationCompany, unaudited statements of income and cash flows for such fiscal quarter, quarter and an unaudited balance sheet as of the end of such fiscal quarter, all prepared in accordance with GAAP (except that such financial statements may (i) be subject to normal year-end audit adjustments; and (ii) not contain all notes thereto that may be required in accordance with GAAP);
7.1.3 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 Corporation, a statement showing the number of shares of each class of capital stock outstanding at the end of the period, and the number of shares of issued equity compensation awards and equity compensation awards not yet issued but reserved for issuance, if any, all in sufficient detail as to permit the Stockholder to calculate its percentage equity ownership in the Corporation, and certified by the chief financial officer or chief executive officer of the Corporation as being true, complete, and correct; and
7.1.4 as soon as practicable, but in any event within thirty (30) days of the end of each month, an unaudited income statement for such month, and an unaudited balance sheet as of the end of such month, all prepared 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);
(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, forecasting the Company’s revenues, expenses and cash positions;
(e) as soon as practicable, but in any event within forty-five (45) days after the end of 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 other information relating to the financial condition, business or corporate affairs of the Company as any Major Investor may from time to time reasonably request; provided, however, that the Company shall not be obligated under this Subsection 3.1 to provide information (i) that the Company reasonably determines in good faith to be a trade secret or confidential information (unless covered by an enforceable confidentiality agreement, in a form reasonably acceptable to the Company); or (ii) the disclosure of which would adversely affect the attorney-client privilege between the Company and its counsel. If, for any period, the Company has any subsidiary whose accounts are consolidated with those of the Company, then in respect of such period the financial statements delivered pursuant to the foregoing sections shall be the consolidated and consolidating financial statements of the Company and all such consolidated subsidiaries. Notwithstanding anything else in this Subsection 3.1 to the contrary, the Company may cease providing the information set forth in this Subsection 3.1 during the period starting with the date sixty (60) days before the Company’s good-faith estimate of the date of filing of a registration statement if it reasonably concludes it must do so to comply with the SEC rules applicable to such registration statement and related offering; provided that the Company’s covenants under this Subsection 3.1 shall be reinstated at such time as the Company is no longer actively employing its commercially reasonable efforts to cause such registration statement to become effective.
Appears in 1 contract
Sources: Investors’ Rights Agreement (Bolt Biotherapeutics, Inc.)
Delivery of Financial Statements. So long as a Founder (and/or her applicable Founder Group) hold at least 10,000 shares of Class A Common Stock (subject to appropriate adjustment in the event of any stock dividend, stock split, combination or other similar recapitalization with respect to the Class A Common Stock), the Corporation The Company shall deliver to each Major Investor; provided, that the Board of Directors has not reasonably determined that such Stockholders:Major Investor is a Competitor (provided that Major Investors that are venture capital funds or professional investment funds shall not be deemed Competitors solely as a result of their investments in other companies):
7.1.1 (a) as soon as practicable, but in any event within one hundred twenty (120) days after the end of each fiscal year of the Corporation, its 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(d)) for such year, with an explanation of any material differences between such amounts and a schedule as to the sources and applications of funds for such year, and (iii) a statement of Stockholdersstockholders’ equity as of the end of such year, all such financial statements prepared in accordance with GAAP, GAAP and audited and certified by independent public accountants of nationally recognized standing selected by the CorporationCompany;
7.1.2 (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 CorporationCompany, unaudited statements of income and cash flows for such fiscal quarter, and an unaudited balance sheet as of the end of such fiscal quarter, all prepared in accordance with GAAP (except that such financial statements may (i) be subject to normal year-end audit adjustments; and (ii) not contain all notes thereto that may be required in accordance with GAAP);
7.1.3 as soon as practicable(c) beginning on January 1, 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 Corporation, a statement showing the number of shares of each class of capital stock outstanding at the end of the period2020, and the number of shares of issued equity compensation awards and equity compensation awards not yet issued but reserved for issuance, if any, all in sufficient detail as to permit the Stockholder to calculate its percentage equity ownership in the Corporation, and certified by the chief financial officer or chief executive officer of the Corporation as being true, complete, and correct; and
7.1.4 as soon as practicable, but in any event within thirty (30) days of the end of each monthmonth thereafter, 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) beginning after January 1, 2020, by the end of the first fiscal quarter of each year, a budget and business plan for that fiscal year (collectively, the “Budget”), approved by the Board of Directors; and
(e) such other information relating to the financial condition, business, prospects, or corporate affairs of the Company as any Major Investor may from time to time reasonably request; provided, however, that the Company shall not be obligated under this Subsection 3.1 to provide information (i) that the Company reasonably determines in good faith to be a trade secret or confidential information (unless covered by an enforceable confidentiality agreement, in a form acceptable to the Company); or (ii) the disclosure of which would adversely affect the attorney-client privilege between the Company and its counsel. If, for any period, the Company has any subsidiary whose accounts are consolidated with those of the Company, then in respect of such period the financial statements delivered pursuant to the foregoing sections shall be the consolidated and consolidating financial statements of the Company and all such consolidated subsidiaries. Notwithstanding anything else in this Subsection 3.1 to the contrary, the Company may cease providing the information set forth in this Subsection 3.1 during the period starting with the date sixty (60) days before the Company’s good-faith estimate of the date of filing of a registration statement if it reasonably concludes it must do so to comply with the SEC rules applicable to such registration statement and related offering; provided, that the Company’s covenants under this Subsection 3.1 shall be reinstated at such time as the Company is no longer actively employing its commercially reasonable efforts to cause such registration statement to become effective.
Appears in 1 contract
Sources: Investors’ Rights Agreement (Black Diamond Therapeutics, Inc.)
Delivery of Financial Statements. So long as a Founder (and/or her applicable Founder Group) hold at least 10,000 shares of Class A Common Stock (subject to appropriate adjustment in the event of any stock dividend, stock split, combination or other similar recapitalization with respect to the Class A Common Stock), the Corporation The Company shall deliver to each Holder the following information, provided that the Board of Directors has not reasonably determined that such Stockholders:Holder is a competitor of the Company (it being understood and agreed that no Holders is a competitor of the Company solely from the fact that it is an investor with a minority non-controlling interest in another entity that may be deemed a competitor of the Company):
7.1.1 (a) starting with the period ending December 31, 2022, as soon as practicable, but in any event within one hundred twenty (120180) days after the end of each fiscal calendar year of the Corporation, its (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 Stockholdersstockholders’ equity as of the end of such year, all such financial statements prepared in accordance with GAAP, audited and certified by independent public accountants of nationally recognized standing selected by the CorporationCompany;
7.1.2 (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 Corporationquarter, unaudited statements of income and cash flows for such fiscal calendar quarter, and an unaudited balance sheet as of the end of such fiscal calendar 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);
7.1.3 (c) as soon as practicable, but in any event within forty-five (45) days after the end of each of the first three (3) quarters quarter of each fiscal year of the CorporationCompany, 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 equity compensation awards stock options and equity compensation awards stock options not yet issued but reserved for issuance, if any, all in sufficient detail as to permit the Stockholder Company’s shareholders to calculate its their respective percentage equity ownership in the CorporationCompany, and certified by the chief financial officer or chief executive officer of the Corporation Company as being true, complete, and correct; and;
7.1.4 (d) as soon as practicable, but in any event within thirty (30) days of before the end of each monthfiscal year, an unaudited income statement a budget and business plan for the next fiscal year (collectively, the “Budget”), prepared on a monthly basis, including statements of cash flow for such monthmonths and, and an unaudited balance sheet as 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 end Company as any shareholder holding at least 1,000,000 of such monthSeries A Preferred Stock or Common Stock may from time to time reasonably request; provided, all prepared in accordance with GAAP however, that the Company shall not be obligated under this Subsection (except that such financial statements may e) 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 adjustments and the Company); (ii) not contain the disclosure of which would adversely affect the attorney-client privilege between the Company and its counsel; or (iii) under circumstances which the Company reasonably determines would result in material burden or distraction. 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 notes thereto such consolidated subsidiaries. Notwithstanding anything else in this Section 4.1 to the contrary, the Company may cease providing the information set forth in this Section 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 may the Company’s covenants under this Section 4.1 shall be required in accordance with GAAP)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. So long as a Founder (and/or her applicable Founder Group) hold at least 10,000 shares of Class A Common Stock (subject to appropriate adjustment in the event of any stock dividend, stock split, combination or other similar recapitalization with respect to the Class A Common Stock), the Corporation The Company shall deliver to each Major Investor, provided that the Board of Directors has not reasonably determined that such StockholdersMajor Investor is a Competitor:
7.1.1 (a) as soon as practicable, but in any event within one hundred twenty and eighty (120180) days after the end of each fiscal year of the Corporation, its 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(d)) for such year, with an explanation of any material differences between such amounts and a schedule as to the sources and applications of funds for such year, and (iii) a statement of Stockholdersstockholders’ equity as of the end of such year, all such financial statements prepared in accordance with GAAP, audited and certified by independent public accountants of nationally recognized standing selected approved by the CorporationBoard of Directors (including the approval of the majority of the Preferred Directors); provided that such audit requirement may be waived by the Board of Directors (including the approval of the majority of the Preferred Directors);
7.1.2 (b) as soon as practicable, but in any event within forty-five (45) days after the end of each of the first three (3) quarters quarter of each fiscal year of the CorporationCompany, unaudited statements of income and cash flows for such fiscal quarter, and an unaudited balance sheet as of the end of such fiscal quarter, all prepared in accordance with GAAP (except that such financial statements may (i) be subject to normal year-end audit adjustments; and (ii) not contain all notes thereto that may be required in accordance with GAAP);
7.1.3 (c) as soon as practicable, but in any event within forty-five (45) days after the end of each of the first three (3) quarters quarter of each fiscal year of the CorporationCompany, 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 equity compensation awards stock options and equity compensation awards stock options not yet issued but reserved for issuance, if any, all in sufficient detail as to permit the Stockholder Major Investors to calculate its their respective percentage equity ownership in the CorporationCompany, and certified by the chief financial officer or chief executive officer of the Corporation Company as being true, complete, and correct; and;
7.1.4 (d) as soon as practicable, but in any event within thirty (30) days of after the end of each monthfiscal year, an unaudited a budget and business plan for the next fiscal year (collectively, the “Budget”), approved by the Board of Directors (including the approval of the majority of the Preferred Directors) prepared on a monthly basis, including balance sheets, income statement statements, and statements of cash flow for such monthmonths and, and an unaudited balance sheet as 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 end of such monthCompany as any Major Investor may from time to time reasonably request; provided, all prepared in accordance with GAAP (except however, that such financial statements may 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 subject a trade secret or confidential information (unless covered by an enforceable confidentiality agreement, in a form acceptable to normal year-end audit adjustments and the Company); or (ii) not contain 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 notes thereto such consolidated subsidiaries. Notwithstanding anything else in this Subsection 3.1 to the contrary, the Company may cease providing the information set forth in this Subsection 3.1 during the period starting with the date sixty (60) days before the Company’s good-faith estimate of the date of filing of a registration statement if it reasonably concludes it must do so to comply with the SEC rules applicable to such registration statement and related offering; provided that may the Company’s covenants under this Subsection 3.1 shall be required in accordance with GAAP)reinstated at such time as the Company is no longer actively employing its commercially reasonable efforts to cause such registration statement to become effective.
Appears in 1 contract
Sources: Investors’ Rights Agreement (MBX Biosciences, Inc.)
Delivery of Financial Statements. So long as a Founder (and/or her applicable Founder Group) hold at least 10,000 shares of Class A Common Stock (subject to appropriate adjustment in the event of any stock dividend, stock split, combination or other similar recapitalization with respect to the Class A Common Stock), the Corporation The Company shall deliver to such StockholdersBWAY and to each holder of Preferred Shares who holds at least 2% of the issued and outstanding share capital of the Company on an as converted basis:
7.1.1 (a) as soon as practicable, but in any event within one hundred twenty sixty (12060) days after the end of each fiscal year of the CorporationCompany (or within forty-five (45) days after the end of each fiscal year once BWAY holds twenty percent (20%) or more of the issued and outstanding share capital of the Company on an as converted basis), its financial statement for such year, including (i) a consolidated balance sheet as of the end of such year, (ii) statements of income and of cash flows for such year, and (iii) 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 a schedule as to the sources and applications of funds for such year, and (iv) a statement of Stockholdersshareholders’ equity as of the end of such year, setting forth in each case in comparative form the figure for the previous fiscal year, all such financial statements in reasonable detail, in NIS with United State dollar- convenience translation, prepared in accordance with GAAP, audited by an accounting firm of international standing, and certified by independent public accountants of nationally recognized standing selected by the Corporationin a form reasonably acceptable to BWAY and KT Squared, LLC (“KT”);
7.1.2 (b) as soon as practicable, but in any event within forty-five thirty (4530) days after the end of each of the first three (3) quarters of each fiscal year of the CorporationCompany, unaudited financial statements for such quarter, including an unaudited consolidated balance sheet of the Company as at the end of each such period and unaudited consolidated statements of income and cash flows flow of the Company for such the period from the beginning of the current fiscal quarter, and an unaudited balance sheet as of year to the end of such fiscal quarterquarterly period, all prepared setting forth 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 each case in accordance with GAAP);
7.1.3 as soon as practicable, but in any event within forty-five (45) days after comparative form the end of each figures for the corresponding period of the first three (3) quarters of each previous fiscal year of the Corporation, a statement showing the number of shares of each class of capital stock outstanding at the end of the period, and the number of shares of issued equity compensation awards and equity compensation awards not yet issued but reserved for issuance, if anyyear, all in sufficient detail as to permit the Stockholder to calculate its percentage equity ownership reasonable detail, in the Corporation, NIS with United States dollar convenience translation and certified signed by the chief financial officer (or if none, by the chief executive officer officer) of the Corporation as being true, completeCompany, and correct; and
7.1.4 as soon as practicable, but in any event within thirty (30) days of the end of each month, an unaudited income statement for such month, a form reasonably acceptable to BWAY and an unaudited balance sheet as of the end of such month, all prepared in accordance with GAAP KT (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 available, but in any event within twenty one (21) days of the end of each fiscal quarter of the Company, if any changes have occurred within said quarter, 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 on both issued and fully-diluted bases, and certified by the chief financial officer or chief executive officer of the Company as being true, complete, and correct;
(d) such other information as any Investor may from time to time reasonably request that is customary to provide to a shareholder.
Appears in 1 contract
Delivery of Financial Statements. So long as a Founder (and/or her applicable Founder Group) hold at least 10,000 shares of Class A Common Stock (subject to appropriate adjustment in the event of any stock dividend, stock split, combination or other similar recapitalization with respect to the Class A Common Stock), the Corporation The Company shall deliver to such StockholdersInvestor:
7.1.1 (i) as soon as practicable, but in any event within one hundred twenty (120) days after the end of each fiscal year of the Corporation, its Company (i1) a balance sheet as of the end of such year, (ii2) 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 and as included in the Budget (as defined herein) for such year (if prepared by the Company), 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 (3) a statement of Stockholdersstockholders’ equity as of the end of such year, and all such financial statements prepared in accordance with GAAP, audited and certified by independent public accountants of nationally or regionally recognized standing selected by the CorporationCompany;
7.1.2 (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 such fiscal year of the CorporationCompany, unaudited statements of income and cash flows for such fiscal quarter, and an unaudited balance sheet as of the end of such fiscal quarter, all prepared in accordance with GAAP (except that such financial statements may (i1) be subject to normal year-end audit adjustments; and (ii2) not contain all notes thereto that may be required in accordance with GAAP);
7.1.3 (iii) 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 CorporationCompany, 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 equity compensation awards stock options and equity compensation awards stock options not yet issued but reserved for issuance, if any, all in sufficient detail as to permit the Stockholder Investor to calculate its percentage equity ownership in the CorporationCompany, and certified by the chief financial officer or chief executive officer of the Corporation Company as being true, complete, and correct; and;
7.1.4 (iv) if the Company prepares a Budget (as defined below), then as soon as practicable, but in any event within thirty (30) days of before the end of each monthfiscal year, an unaudited a budget and business plan for the next fiscal year (collectively, the “Budget”), approved by the Board of Directors and prepared on a monthly basis, including balance sheets, income statement statements, and statements of cash flow for such monthmonths and, and an unaudited balance sheet as promptly after prepared, any other budgets or revised budgets prepared by the Company;
(v) such other information relating to the financial condition, business, prospects, or corporate affairs of the end Company as Investor may from time to time reasonably request; provided, however, that the Company shall not be obligated under this Section 10(a) to provide information (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 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 month, all prepared in accordance with GAAP (except that 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 10(a) to the contrary, the Company may cease providing the information set forth in this Section 10(a) during the period starting with the date sixty (i60) 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 10(a) shall be subject reinstated at such time as the Company is no longer actively employing its commercially reasonable efforts to normal year-end audit adjustments and (ii) not contain all notes thereto that may be required cause such registration statement to become effective. To the extent the Company has agreed to provide more comprehensive financial information to any Person, the Company shall provide the Investor with such more comprehensive financial information in accordance with GAAP)addition to the items described in this Section 10.
Appears in 1 contract
Delivery of Financial Statements. So long as a Founder (and/or her applicable Founder Group) hold at least 10,000 shares of Class A Common Stock (subject to appropriate adjustment in the event of any stock dividend, stock split, combination or other similar recapitalization with respect to the Class A Common Stock), the Corporation The Company shall deliver to such Stockholderseach Investor:
7.1.1 (a) who holds at least 500,000 shares of Series B, Series C, Series D, Series E, Series F, Series G or Series H Preferred Stock or Common Stock issued upon conversion thereof (as adjusted for subsequent stock splits, recombinations or reclassifications), as soon as practicable, but in any event within one hundred twenty ninety (12090) days after the end of each fiscal year of the CorporationCompany, its (i) 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, (ii) statements of income year and a statement of cash flows for such year, and (iii) 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 recognized standing selected by the Corporation;Company; and
7.1.2 (b) who holds at least 850,000 shares of Series B, Series C, Series D, Series E, Series F, Series G or Series H Preferred Stock or Common Stock issued upon conversion thereof (as adjusted for subsequent stock splits, recombinations or reclassifications) (a "Major Investor"):
(i) 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 CorporationCompany, an unaudited statements profit or loss statement, statement of income and cash flows for such fiscal quarter, quarter and an unaudited balance sheet as of the end of such fiscal quarter, all prepared in accordance with GAAP (except that such financial statements may (i) be subject to normal year-end audit adjustments; and ;
(ii) not contain all notes thereto that may be required in accordance with GAAP);
7.1.3 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 Corporation, a statement showing the number of shares of each class of capital stock outstanding at the end of the period, and the number of shares of issued equity compensation awards and equity compensation awards not yet issued but reserved for issuance, if any, all in sufficient detail as to permit the Stockholder to calculate its percentage equity ownership in the Corporation, and certified by the chief financial officer or chief executive officer of the Corporation as being true, complete, and correct; and
7.1.4 as soon as practicable, but in any event within thirty (30) days of the end of each month, an unaudited income statement, statement for such month, of cash flows and an unaudited balance sheet for and as of the end of such month, all in reasonable detail;
(iii) as soon as practicable, but in any event thirty (30) days prior to the end of each fiscal year, a budget and business or operating plan for the next fiscal year in the form approved by the Board of Directors of the Company, prepared on a monthly basis including balance sheets and sources and applications of funds statements for such months and, as soon as prepared, any other budgets or revised budgets prepared by the Company;
(iv) with respect to the financial statements called for in subsections (i) and (ii) of this Section 2.1(b), 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 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).the
Appears in 1 contract
Sources: Investors Rights Agreement (Introbiotics Phamaceuticals Inc)
Delivery of Financial Statements. So long as a Founder (and/or her applicable Founder Group) hold at least 10,000 shares of Class A Common Stock (subject to appropriate adjustment in the event of any stock dividend, stock split, combination or other similar recapitalization with respect to the Class A Common Stock), the Corporation The Company shall deliver to such Stockholdersthe Major Investors:
7.1.1 (a) as soon as practicable, but in any event within one hundred twenty fifty (120150) days after the end of each fiscal year of the Corporation, its 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 Stockholdersstockholders’ equity as of the end of such year, all such financial statements prepared in accordance with GAAP, to be audited and certified by independent public accountants of nationally recognized standing selected by the Corporationstanding;
7.1.2 (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 CorporationCompany, unaudited statements of income and cash flows for such fiscal quarter, and an unaudited balance sheet as of the end of such fiscal quarter, all prepared in accordance with GAAP (except that such financial statements may (i) be subject to normal year-end audit adjustments; and (ii) not contain all notes thereto that may be required in accordance with GAAP);
7.1.3 (c) as soon as practicable, but in any event within forty-five (45) days after the end of each of the first three (3) quarters quarter of each fiscal year of the CorporationCompany, 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 equity compensation awards stock options and equity compensation awards stock options not yet issued but reserved for issuance, if any, all in sufficient detail as to permit the Stockholder Major Investors to calculate its their respective percentage equity ownership in the CorporationCompany, and certified by the chief financial officer or chief executive officer of the Corporation Company as being true, complete, and correct; and;
7.1.4 (d) as soon as practicable, but in any event within thirty (30) days of the end of each month, an unaudited income statement for such month, and an unaudited balance sheet as of the end of such month, all prepared in accordance with GAAP (except that such financial statements may (i) be subject to normal year-end audit adjustments and (ii) not contain all notes thereto that may be required in accordance with GAAP);
(e) as soon as practicable, but in any event thirty (30) days before the end of each fiscal year, a budget and business plan for the next fiscal year (collectively, the “Budget”), 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; provided, however, that the Company shall not be obligated under this Section 4.1 to provide information (i) that the Company reasonably determines in good faith to be a trade secret or confidential information (unless covered by an enforceable confidentiality agreement, in a form acceptable to the Company); or (ii) the disclosure of which would adversely affect the attorney-client privilege between the Company and its counsel. Notwithstanding anything else in this Subsection 4.1 to the contrary, the Company may cease providing the information set forth in this 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 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. So long as a Founder (and/or her applicable Founder Group) hold at least 10,000 shares of Class A Common Stock (subject to appropriate adjustment in the event of any stock dividend, stock split, combination or other similar recapitalization with respect to the Class A Common Stock), the Corporation The Company shall deliver to each Major Investor, provided that the Board of Directors has not reasonably determined that such StockholdersMajor Investor is a Competitor:
7.1.1 (a) as soon as practicable, but in any event within forty-five (45) days after the end of each fiscal year of the Company (i) an unaudited balance sheet as of the end of such year, (ii) unaudited statements of income and of cash flows for such year, and (iii) an unaudited statement of stockholders’ equity as of the end of such year;
(b) as soon as practicable, but in any event within one hundred twenty eighty (120180) days after the end of each fiscal year of the Corporation, its 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(f)) 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 Stockholdersstockholders’ equity as of the end of such year, all such financial statements prepared in accordance with GAAP, audited and certified by independent public accountants of nationally recognized standing selected by the CorporationCompany;
7.1.2 (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 CorporationCompany, (A) 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 (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 (B) a comparison between (x) the actual amounts as of and for such quarter and (y) the comparable amounts as included in the Budget for such quarter, with an explanation of any material differences between such amounts, and (iii) an unaudited statement of stockholders’ equity as of the end of such quarter;
7.1.3 (d) as soon as practicable, but in any event within forty-five (45) days after the end of each of the first three (3) quarters of each fiscal year of the CorporationCompany, 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 equity compensation awards stock options and equity compensation awards stock options not yet issued but reserved for issuance, if any, all in sufficient detail as to permit the Stockholder Major Investors to calculate its their respective percentage equity ownership in the CorporationCompany, and certified by the chief financial officer or chief executive officer of the Corporation Company as being true, complete, and correct; and;
7.1.4 (e) as soon as practicable, but in any event within thirty (30) days of the end of each month, (A) 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 (B) a comparison between (x) the actual amounts as of and for such month and (y) the comparable amounts as included in the Budget for such month, with an explanation of any material differences between such amounts;
(f) as soon as practicable, but in any event thirty (30) days before the end of each fiscal year, a budget and business plan for the next fiscal year (collectively, the “Budget”), approved by the Board of Directors (including the vote of at least (a) two Preferred Directors, if there is not a Series B Director serving on the Board of Directors at the time of such approval or (b) three Preferred Directors, if there is a Series B Director serving on the Board of Directors at the time of such approval (the “Requisite Preferred Director Vote”)) 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;
(g) 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 a form acceptable to the Company); or (ii) the disclosure of which would adversely affect the attorney-client privilege between the Company and its counsel. If, for any period, the Company has any subsidiary whose accounts are consolidated with those of the Company, then in respect of such period the financial statements delivered pursuant to the foregoing sections shall be the consolidated and consolidating financial statements of the Company and all such consolidated subsidiaries. Notwithstanding anything else in this Subsection 3.1 to the contrary, the Company may cease providing the information set forth in this Subsection 3.1 during the period starting with the date thirty (30) days before the Company’s good-faith estimate of the date of filing of a registration statement if it reasonably concludes it must do so to comply with the SEC rules applicable to such registration statement and related offering; provided that the Company’s covenants under this Subsection 3.1 shall be reinstated at such time as the Company is no longer actively employing its commercially reasonable efforts to cause such registration statement to become effective.
Appears in 1 contract
Sources: Investors’ Rights Agreement (Talaris Therapeutics, Inc.)
Delivery of Financial Statements. So long as a Founder (and/or her applicable Founder Group) hold at least 10,000 shares of Class A Common Stock (subject to appropriate adjustment in the event of any stock dividend, stock split, combination or other similar recapitalization with respect to the Class A Common Stock), the Corporation The Company shall deliver to each Major Investor, provided that the Board of Directors has not reasonably determined that such StockholdersMajor Investor is a Competitor of the Company:
7.1.1 (a) as soon as practicable, but in any event within one hundred twenty (120) days after the end of each fiscal year of the Corporation, its 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 Stockholdersstockholders’ equity as of the end of such year, all such financial statements prepared in accordance with GAAP, audited and certified by independent public accountants of nationally recognized standing selected by the CorporationCompany (to include the affirmative approval of at least two of the Preferred Directors);
7.1.2 (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 CorporationCompany, 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 (i) be subject to normal year-end audit adjustments; and (ii) not contain all notes thereto that may be required in accordance with GAAP);
7.1.3 (c) as soon as practicable, but in any event within forty-five (45) days after the end of each of the first three (3) quarters quarter of each fiscal year of the CorporationCompany, 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 equity compensation awards stock options and equity compensation awards stock options not yet issued but reserved for issuance, if any, all in sufficient detail as to permit the Stockholder Major Investors to calculate its their respective percentage equity ownership in the CorporationCompany, and certified by the chief financial officer or chief executive officer of the Corporation Company as being true, complete, and correct; and;
7.1.4 (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, each compared against the Budget, all prepared in accordance with GAAP (except that such financial statements may (i) be subject to normal year-end audit adjustments and (ii) not contain all notes thereto that may be required in accordance with GAAP);
(e) as soon as practicable, but in any event sixty (60) days before the end of each fiscal year, a budget and business plan for the next fiscal year (collectively, the “Budget”), approved by the Board of Directors and prepared on a monthly 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; 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 (ii) the disclosure of which would adversely affect the attorney-client privilege between the Company and its counsel. If, for any period, the Company has any subsidiary whose accounts are consolidated with those of the Company, then in respect of such period the financial statements delivered pursuant to the foregoing sections shall be the consolidated and consolidating financial statements of the Company and all such consolidated subsidiaries. Notwithstanding anything else in this Subsection 3.1 to the contrary, the Company may cease providing the information set forth in this Subsection 3.1 during the period starting with the date forty-five (45) days before the Company’s good-faith estimate of the date of filing of a registration statement if it reasonably concludes it must do so to comply with the SEC rules applicable to such registration statement and related offering; provided that the Company’s covenants under this Subsection 3.1 shall be reinstated at such time as the Company is no longer actively employing its commercially reasonable efforts to cause such registration statement to become effective.
Appears in 1 contract
Delivery of Financial Statements. So long as a Founder (and/or her applicable Founder Group) hold at least 10,000 shares of Class A Common Stock (subject to appropriate adjustment in the event of any stock dividend, stock split, combination or other similar recapitalization with respect to the Class A Common Stock), the Corporation The Company shall deliver to each Major Investor, provided that the Board of Directors has not reasonably determined that such StockholdersMajor Investor is a competitor of the Company:
7.1.1 (a) as soon as practicable, but in any event within one hundred twenty (120) days after the end of each fiscal year of the CorporationCompany, its (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 Stockholdersstockholders’ equity as of the end of such year, all such financial statements prepared in accordance with GAAP, audited and certified by independent public accountants of nationally recognized standing selected by the CorporationCompany and approved by the Board of Directors, including the Preferred Directors;
7.1.2 (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 CorporationCompany, unaudited statements of income and of cash flows for such fiscal quarter, and an unaudited balance sheet and a statement of stockholders’ equity as of the end of such fiscal quarter, all prepared in accordance with GAAP (except that such financial statements may (i) be subject to normal year-end audit adjustments; adjustments and (ii) not contain all notes thereto that may be required in accordance with GAAP);
7.1.3 (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 CorporationCompany, 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 equity compensation awards stock options and equity compensation awards stock options not yet issued but reserved for issuance, if any, all in sufficient detail as to permit the Stockholder any Major Investor to calculate its percentage equity ownership in the CorporationCompany, and certified by the chief financial officer or chief executive officer of the Corporation Company as being true, complete, and correct; and;
7.1.4 (d) as soon as practicable, but in any event within thirty (30) days of the end of each month, an unaudited income statement and statement of cash flows for such month, and an unaudited balance sheet and statement of stockholders’ equity as of the end of such month, all prepared in accordance with GAAP (except that such financial statements may (i) be subject to normal year-end audit adjustments and (ii) not contain all notes thereto that may be required in accordance with GAAP);
(e) as soon as practicable, but in any event thirty (30) days before the end of each fiscal year, a budget and business plan for the next fiscal year (collectively, the “Budget”), approved by the Board of Directors and prepared on a 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 (i) that the Company reasonably determines in good faith to be confidential information (unless covered by an enforceable confidentiality agreement, in form acceptable to the Company) or a trade secret or (ii) the disclosure of which would adversely affect the attorney-client privilege between the Company and its counsel. If, for any period, the Company has any subsidiary whose accounts are consolidated with those of the Company, then in respect of such period the financial statements delivered pursuant to the foregoing sections shall be the consolidated and consolidating financial statements of the Company and all such consolidated subsidiaries. Notwithstanding anything else in this Subsection 3.1 to the contrary, the Company may cease providing the information set forth in this Subsection 3.1 during the period starting with the date sixty (60) days before the Company’s good-faith estimate of the date of filing of a registration statement if it reasonably concludes it must do so to comply with the SEC rules applicable to such registration statement and related offering; provided that the Company’s covenants under this Subsection 3.1 shall be reinstated at such time as the Company is no longer actively employing its commercially reasonable efforts to cause such registration statement to become effective.
Appears in 1 contract
Delivery of Financial Statements. So long as a Founder (and/or her applicable Founder Group) hold at least 10,000 shares of Class A Common Stock (subject to appropriate adjustment in the event of any stock dividend, stock split, combination or other similar recapitalization with respect to the Class A Common Stock), the Corporation The Company shall deliver to each Major Investor, provided that the Board of Directors has not reasonably determined that such StockholdersInvestor is a Competitor of the Company:
7.1.1 (a) as soon as practicable, but in any event within one hundred twenty (120) days after no later than June 30th following the end of each fiscal year of the Corporation, its 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 (defined below) for such year, with an explanation of any material differences between such amounts and a schedule as to the sources and applications of funds for such year, and (iii) a statement of Stockholdersstockholders’ equity as of the end of such year, all such financial statements prepared in accordance with GAAP, audited and certified by independent public accountants of nationally recognized standing selected by the CorporationCompany and a copy of such accountant’s management letter prepared in connection therewith, if any; provided, however, (x) the obligation to deliver such financial statements audited and certified may be suspended by the Board of Directors (including a majority of the Preferred Directors) and (y) for the fiscal year ended December 31, 2018, such audited financial statements must be delivered on or prior to July 31, 2019;
7.1.2 (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 CorporationCompany, unaudited statements of income and cash flows for such fiscal quarter, and an unaudited balance sheet as of the end of such fiscal quarterquarter including a comparison to projected figures, 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);
7.1.3 (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 CorporationCompany, 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 equity compensation awards stock options and equity compensation awards stock options not yet issued but reserved for issuance, if any, all in sufficient detail as to permit the Stockholder Major Investors to calculate its their respective percentage equity ownership in the CorporationCompany, and certified by the chief financial officer or chief executive officer of the Corporation Company as being true, complete, and correct; and;
7.1.4 (d) as soon as practicable, but in any event within thirty (30) days of before the end of each monthfiscal year, a budget and business plan for the next fiscal year (collectively, the “Budget”), which Budget shall be approved by the Board of Directors, and shall be 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 prior to any approval by the Board of Directors of any such modification to the Budget or revised budgets;
(e) with respect to the financial statements called for in Subsection 3.1(a) and Subsection 3.1(b), an unaudited income statement for such month, instrument executed by the chief financial officer and an unaudited balance sheet as chief executive officer of the end of Company certifying that such month, all 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
(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 such financial statements may 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 subject a trade secret or confidential information (unless covered by an enforceable confidentiality agreement, in a form reasonably acceptable to normal year-end audit adjustments and the Company); or (ii) not contain 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 notes thereto such consolidated subsidiaries. Notwithstanding anything else in this Subsection 3.1 to the contrary, the Company may cease providing the information set forth in this Subsection 3.1 during the period starting with the date sixty (60) days before the Company’s good-faith estimate of the date of filing of a registration statement if it reasonably concludes it must do so to comply with the SEC rules applicable to such registration statement and related offering; provided that may the Company’s covenants under this Subsection 3.1 shall be required in accordance with GAAP)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. So long as a Founder (and/or her applicable Founder Group) hold at least 10,000 shares of Class A Common Stock (subject to appropriate adjustment in the event of any stock dividend, stock split, combination or other similar recapitalization with respect to the Class A Common Stock), the Corporation The Company shall deliver to such Stockholderseach Investor:
7.1.1 as soon as practicable, but in any event within one hundred twenty (120) days after the end of each fiscal year of the Corporation, its (i) balance sheet as of the end of such year, (ii) statements of income and of cash flows for such year, and (iii) statement of Stockholders’ equity as of the end of such year, all such financial statements prepared in accordance with GAAP, audited and certified by independent public accountants of nationally recognized standing selected by the Corporation;
7.1.2 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 CorporationCompany, unaudited statements of income and cash flows for such fiscal quarter, and an unaudited (1) a balance sheet as of the end of such year, (2) statements of income and of cash flows for such year, and a comparison between (x) the actual amounts as of and for such fiscal quarteryear 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 (3) a 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; audited and certified by the auditors of the Company;
(ii) not contain all notes thereto that may be required in accordance with GAAP);
7.1.3 as soon as practicable, but in any event within fortytwenty-five (4525) days after the end of each of the first three (3) quarters of each fiscal year of the CorporationCompany, a statement showing the number unaudited statements of shares income and of each class of capital stock outstanding at the end of the period, and the number of shares of issued equity compensation awards and equity compensation awards not yet issued but reserved for issuance, if any, all in sufficient detail as to permit the Stockholder to calculate its percentage equity ownership in the Corporation, and certified by the chief financial officer or chief executive officer of the Corporation as being true, complete, and correct; and
7.1.4 as soon as practicable, but in any event within thirty (30) days of the end of each month, an unaudited income statement cash flows for such monthfiscal quarter, and an unaudited balance sheet and a statement of stockholders’ equity as of the end of such monthfiscal 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);
(iii) as soon as practicable, but in any event thirty (30) days before the end of each fiscal year, a Budget/Business Plan for the next fiscal year, adopted with Unanimous Board Approval and prepared on a monthly basis, including balance sheets, income statements, and statements of cash flow for such months; and
(iv) with respect to the financial statements called for in Section 9(e)(i) and Section 9(e)(ii), an instrument executed by the chief financial officer and chief executive officer of the Company certifying that such financial statements were prepared in accordance with GAAP consistently applied with prior practice for earlier periods (except as otherwise set forth in Section 9(e)(ii)) and fairly present the financial condition of the Company and its results of operation for the periods specified therein.
(v) 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 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. Notwithstanding the above, if requested by AFSI, the financial information required to be delivered pursuant to this Section 9(e) shall be delivered to AFSI sooner and in a timely manner to permit AFSI to reflect the Company's financial position and results of operations in its periodic filings with the Securities and Exchange Commission under the Securities Exchange Act of 1934, as amended.
Appears in 1 contract
Sources: Stockholders Agreement (Amtrust Financial Services, Inc.)
Delivery of Financial Statements. So long as a Founder (and/or her applicable Founder Group) hold at least 10,000 shares of Class A Common Stock (subject to appropriate adjustment in the event of any stock dividend, stock split, combination or other similar recapitalization with respect to the Class A Common Stock), the Corporation The Company shall deliver to each Major Investor, provided that the Board of Directors has not reasonably determined that such StockholdersMajor Investor is a Competitor of the Company:
7.1.1 (a) as soon as practicablepracticable upon the receipt of Major Investor’s written request, but in any event within one hundred twenty (120) days after the end of each fiscal year of the Corporation, its 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 Stockholdersstockholders’ equity as of the end of such year, all such financial statements prepared in accordance with GAAP, audited and certified by independent public accountants of nationally recognized standing selected by the Corporation;; and
7.1.2 (b) as soon as practicablepracticable upon the receipt of Major Investor’s written request, but in any event within forty-five (45) days after the end of each of the first three (3) quarters of each fiscal year of the CorporationCompany, unaudited statements of income and cash flows for such fiscal quarter, and an unaudited balance sheet as of the end of such fiscal quarter, all prepared in accordance with GAAP (except that such financial statements may (i) be subject to normal year-end audit adjustments; and (ii) not contain all notes thereto that may be required in accordance with GAAP), together with a written report of the President or Chief Executive Officer briefly summarizing the results from such quarter and any other material developments;
7.1.3 as soon as practicable, but in any event within forty-five (45c) days after the end of each of the first three (3) quarters of each fiscal year of the Corporation, a statement showing the number of shares of each class of capital stock outstanding at the end of the period, and the number of shares of issued equity compensation awards and equity compensation awards not yet issued but reserved for issuance, if any, all in sufficient detail as to permit the Stockholder to calculate its percentage equity ownership in the Corporation, and certified by the chief financial officer or chief executive officer of the Corporation as being true, complete, and correct; and
7.1.4 as soon as practicable, but in any event within thirty (30) days of the end of each month, an unaudited income statement, statement of cash flows, bank reconciliation, and aging of accounts receivable and payable for such month, and an unaudited balance sheet as of the end of such month, all prepared in accordance with GAAP (except that such financial statements may (i) be subject to normal year-end audit adjustments and (ii) not contain all notes thereto that may be required in accordance with GAAP).;
Appears in 1 contract
Delivery of Financial Statements. So long as a Founder (and/or her applicable Founder Group) hold The Company shall deliver -------------------------------- to each member of the Board of Directors, and to each Investor holding, and to transferees of, at least 10,000 300,000 shares of Class A Common Stock Registrable Securities (subject to appropriate adjustment in the event of any stock dividend, stock split, combination or other similar recapitalization with respect to the Class A Common Stock), the Corporation shall deliver to such Stockholders:a "Major ----- Investor"): --------
7.1.1 (a) as soon as practicable, but in any event within one hundred twenty ninety (12090) days after the end of each fiscal year of the CorporationCompany, its (i) an income statement for such fiscal year, a balance sheet as of the end of such year, (ii) statements of income Company and of cash flows for such year, and (iii) 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 an independent public accountants accounting firm of nationally recognized standing selected by the CorporationCompany;
7.1.2 (b) as soon as practicable, but in any event within forty-five thirty (4530) days after the end of each of the first three (3) quarters of each fiscal year of the CorporationCompany, an unaudited statements profit or loss statement, a statement of income and cash flows for such fiscal quarter, quarter and an unaudited balance sheet as of the end of such fiscal quarter, all prepared in accordance with GAAP (except that such financial statements may (i) be subject to normal year-end audit adjustments; and (ii) not contain all notes thereto that may be required in accordance with GAAP);
7.1.3 as soon as practicable, but in any event (c) within forty-five twenty (45) days after the end of each of the first three (3) quarters of each fiscal year of the Corporation, a statement showing the number of shares of each class of capital stock outstanding at the end of the period, and the number of shares of issued equity compensation awards and equity compensation awards not yet issued but reserved for issuance, if any, all in sufficient detail as to permit the Stockholder to calculate its percentage equity ownership in the Corporation, and certified by the chief financial officer or chief executive officer of the Corporation as being true, complete, and correct; and
7.1.4 as soon as practicable, but in any event within thirty (3020) days of the end of each month, an unaudited income statement for such month, and an unaudited a statement of cash flows and balance sheet for and as of the end of such month, all in reasonable detail;
(d) as soon as practicable, but in any event thirty (30) days prior to the end of each fiscal year, a budget and business plan for the next fiscal year, prepared on a monthly basis, including balance sheets and sources and applications of funds statements for such months and, as soon as prepared, any other budgets or revised budgets prepared by the Company;
(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 (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
(f) 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 reasonably 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.
Appears in 1 contract
Sources: Investors' Rights Agreement (Flycast Communications Corp)
Delivery of Financial Statements. So long as a Founder (and/or her applicable Founder Group) hold at least 10,000 shares of Class A Common Stock (subject to appropriate adjustment in the event of any stock dividend, stock split, combination or other similar recapitalization with respect to the Class A Common Stock), the Corporation The Company shall deliver to such Stockholderseach Major Investor:
7.1.1 (a) as soon as practicable, but in any event within one hundred twenty ninety (12090) days after the end of each fiscal year of the Corporation, its 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, 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 Stockholdersstockholders’ equity as of the end of such year, all such financial statements prepared in accordance with GAAP, audited and certified by independent public accountants of nationally recognized standing selected by the CorporationCompany;
7.1.2 (b) as soon as practicable, but in any event within forty-five (45) days after the end of each of the first three (3) quarters quarter of each fiscal year of the CorporationCompany, 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 (i) be subject to normal year-end audit adjustments; and (ii) not contain all notes thereto that may be required in accordance with GAAP);
7.1.3 (c) as soon as practicable, but in any event within forty-five (45) days after the end of each of the first three (3) quarters quarter of each fiscal year of the CorporationCompany, 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 equity compensation awards stock options and equity compensation awards stock options not yet issued but reserved for issuance, if any, all in sufficient detail as to permit the Stockholder Major Investors to calculate its their respective percentage equity ownership in the CorporationCompany, and certified by the chief financial officer or chief executive officer of the Corporation Company as being true, complete, and correct; and;
7.1.4 (d) as soon as practicable, but in any event within thirty (30) days of after the end of each month, an unaudited income statement and statement of cash flows for such month, and an unaudited balance sheet as of the end of such month, all prepared in accordance with GAAP (except that such financial statements may (i) be subject to normal year-end audit adjustments and (ii) not contain all notes thereto that may be required in accordance with GAAP);
(e) as soon as practicable, but in any event thirty (30) days before the end of each fiscal year, a budget and business plan for the next fiscal year, 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”);
(f) with respect to the financial statements called for in Section 3.1(a), Section 3.1(b) and Section 3.1(d), an instrument executed by the chief executive officer of the Company certifying that such financial statements were prepared in accordance with GAAP consistently applied with prior practice for earlier periods (except as otherwise set forth in Section 3.1(b) and Section 3.1(d)) and fairly present the financial condition of the Company and its results of operation for the periods specified therein; and
(g) 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 (i) that the Company reasonably determines in good faith to be a trade secret or confidential information (unless covered by an enforceable confidentiality agreement, in a form acceptable to the Company); or (ii) the disclosure of which would adversely affect the attorney-client privilege between the Company and its counsel. If, for any period, the Company has any subsidiary whose accounts are consolidated with those of the Company, then in respect of such period the financial statements delivered pursuant to the foregoing sections shall be the consolidated and consolidating financial statements of the Company and all such consolidated subsidiaries.
Appears in 1 contract