Delivery of Financial Statements. The Company shall, upon request, deliver to each Investor (or transferee of an Investor) that holds at least eight hundred forty-six thousand eight hundred thirty-five (846,835) shares of Registrable Securities and each of BioStratum Incorporated (or, in the event of a BioStratum Dissolution, the BioStratum Transferees) and Vanderbilt University (“Vanderbilt”) so long as, respectively, BioStratum Incorporated (or the BioStratum Transferees as a collective) continue to hold at least fifty percent (50%) of the shares of the capital stock of the Company held by BioStratum as of the date hereof and Vanderbilt continues to hold at least fifty percent (50%) of the shares of capital stock held by Vanderbilt as of the date hereof (each as equitably adjusted for stock splits, stock dividends, combinations, recapitalizations, and the like after the Recapitalization (as defined in the Restated Certificate)) (each, a “Major Investor”): (a) as soon as practicable, 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 to be in reasonable detail, prepared in accordance with generally accepted accounting principles (“GAAP”), and audited and certified by independent public accountants of nationally recognized standing selected by the Company; (b) as soon as practicable, but in any event within thirty (30) days after the end of each of the first three (3) quarters of each fiscal year of the Company, an unaudited income statement, statement of cash flows for such fiscal quarter and an unaudited balance sheet as of the end of such fiscal quarter; (c) within twenty (20) days of the end of each month, an unaudited income statement and statement of cash flows and balance sheet for and as of the end of such month, in reasonable detail; (d) as soon as practicable, but in any event at least thirty (30) days 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) with respect to the financial statements called for in subsections (b) and (c) of this Section 2.1, an instrument executed by the Chief Financial Officer or President of the Company certifying that such financials were prepared in accordance with GAAP consistently applied with prior practice for earlier periods (with the exception of footnotes that may be required by GAAP) and fairly present the financial condition of the Company and its results of operation for the period specified, subject to year-end audit adjustment; and (f) 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 (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.
Appears in 2 contracts
Sources: Investors’ Rights Agreement (NephroGenex, Inc.), Investors’ Rights Agreement (Care Capital III LLC)
Delivery of Financial Statements. The Company shall, upon request, shall deliver to each Investor (or transferee of an Investor) that holds at least eight hundred forty-six thousand eight hundred thirty-five (846,835) shares of Registrable Securities and each of BioStratum Incorporated (or, in the event of a BioStratum Dissolution, the BioStratum Transferees) and Vanderbilt University (“Vanderbilt”) so long as, respectively, BioStratum Incorporated (or the BioStratum Transferees as a collective) continue to hold at least fifty percent (50%) of the shares of the capital stock of the Company held by BioStratum as of the date hereof and Vanderbilt continues to hold at least fifty percent (50%) of the shares of capital stock held by Vanderbilt as of the date hereof (each as equitably adjusted for stock splits, stock dividends, combinations, recapitalizations, and the like after the Recapitalization (as defined in the Restated Certificate)) (each, a “Major Investor”)::
(a) as soon as practicable, but in any event within ninety (90) days after the end of each fiscal year of the CompanyCompany (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), an (i) a balance sheet as of the end of such year; (ii) statements of income statement 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 balance sheet schedule as to the sources and applications of the Company funds for such year; and (iii) a statement of stockholders’ equity as of the end of such year, and a statement of cash flows for in each case such year, such year-end financial reports to statements shall be in reasonable detail, prepared in accordance with generally accepted accounting principles (“GAAP”), and audited and certified by independent public accountants of nationally recognized standing selected by the CompanyBoard of Directors;
(b) as soon as practicable, but in any event within thirty forty-five (3045) days after the end of each of the first three (3) quarters of each fiscal year of the Company, an unaudited statements of income statement, statement and of cash flows for such fiscal quarter quarter, and an unaudited balance sheet and a statement of stockholders’ equity as of the end of such fiscal quarter, all prepared in accordance with GAAP (except that the financial report may (i) be subject to normal year-end audit adjustments and (ii) not contain all notes thereto that may be required in accordance with GAAP);
(c) as soon as practicable, but in any event within twenty forty-five (2045) days after the end of each of the first three (3) quarters of each fiscal year of the Company, a statement showing the number of shares of each class and series of capital stock and securities convertible into or exercisable for shares of capital stock outstanding at the end of the period, the Common Stock issuable upon conversion or exercise of any outstanding securities convertible or exercisable for Common Stock and the exchange ratio or exercise price applicable thereto, and the number of shares of issued stock options and stock options not yet issued but reserved for issuance, if any, all in sufficient detail as to permit the Major Investors to calculate their respective percentage equity ownership in the Company, and certified by the chief financial officer or chief executive officer of the Company as being true, complete, and correct;
(d) as soon as practicable, but in any event within twenty-one (21) days of the end of each month, an unaudited income statement and statement of cash flows for such month, and an unaudited balance sheet for and statement of stockholders’ equity as of the end of such month, all prepared in reasonable detailaccordance with GAAP (except that the financial report may (i) be subject to normal year-end audit adjustments and (ii) not contain all notes thereto that may be required in accordance with GAAP), with such statements comparing actual results against budgeted amounts and prior period performance;
(de) as soon as practicable, but in any event at least thirty (30) days prior to before the end of each fiscal year, a budget and business plan for the next fiscal yearyear (collectively, the “Budget”), prepared on a monthly basis, including balance sheets, income statements statements, and statements of cash flows flow for such months and, as soon as promptly after prepared, any other budgets or revised budgets prepared by the Company;
(ef) with respect to the financial statements called for in subsections (bSection 3.1(a), Section 3.1(b) and (c) of this Section 2.13.1(d), an instrument executed by the Chief Financial Officer or President chief financial officer and chief executive officer of the Company certifying that such financials financial statements (i) were prepared in accordance with GAAP consistently applied with prior practice for earlier periods (with the exception of footnotes that may be required by GAAPexcept 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 period specified, subject to year-end audit adjustmentperiods specified therein; and
(fg) such other information relating to the financial condition, business business, prospects, or corporate affairs of the Company as the any Major 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 3.1 to provide information that (i) it deems in good faith reasonably considers to be a trade secret (unless covered by an enforceable confidentiality agreement, in form acceptable to the Company) or similar confidential information(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. The Company shall, upon request, shall deliver to each Investor (or transferee of an Investor) that holds at least eight hundred forty-six thousand eight hundred thirty-five (846,835) shares of Registrable Securities and each of BioStratum Incorporated (or, in the event of a BioStratum Dissolution, the BioStratum Transferees) and Vanderbilt University (“Vanderbilt”) so long as, respectively, BioStratum Incorporated (or the BioStratum Transferees as a collective) continue to hold at least fifty percent (50%) of the shares of the capital stock of the Company held by BioStratum as of the date hereof and Vanderbilt continues to hold at least fifty percent (50%) of the shares of capital stock held by Vanderbilt as of the date hereof (each as equitably adjusted for stock splits, stock dividends, combinations, recapitalizations, and the like after the Recapitalization (as defined in the Restated Certificate)) (each, a “Major Investor”)::
(a) as soon as practicable, but in any event within ninety (90) 120 days after the end of each fiscal year of the Company, an income statement for such fiscal year, (i) a balance sheet as of the Company 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, and a statement of cash flows for all such year, such year-end financial reports to be in reasonable detail, prepared in accordance with generally accepted accounting principles (“GAAP”), and statements audited and certified by independent public accountants of nationally recognized standing selected by the Company;
(b) as soon as practicable, but in any event within thirty (30) 45 days after the end of each of the first three (3) quarters of each fiscal year of the Company, an unaudited statements of income statement, statement of and cash flows for such fiscal quarter quarter, and an unaudited balance sheet and a statement of stockholders’ equity as of the end of such fiscal quarter, all prepared in accordance with GAAP (except that such financial statements may (i) be subject to normal year-end audit adjustments; and (ii) not contain all notes thereto that may be required in accordance with GAAP);
(c) as soon as practicable, but in any event within twenty 45 days after the end of each quarter of each fiscal year of the Company, a statement showing the number of shares of each class and series of capital stock and securities convertible into or exercisable for shares of capital stock outstanding at the end of the period, the Common Stock issuable upon conversion or exercise of any outstanding securities convertible or exercisable for Common Stock and the exchange ratio or exercise price applicable thereto, and the number of shares of issued stock options and stock options not yet issued but reserved for issuance, if any, all in sufficient detail as to permit the Major Investors to calculate their respective percentage equity ownership in the Company, and certified by the chief financial officer or chief executive officer of the Company as being true, complete and correct;
(20d) as soon as practicable, but in any event within 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 for and statement of stockholders’ equity as of the end of such month, all prepared in reasonable detailaccordance 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);
(de) as soon as practicable, but in any event at least thirty (30) 30 days prior to 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 flows flow for such months and, as soon as promptly after 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 certifying that such financials were prepared in accordance with GAAP consistently applied with prior practice for earlier periods (with the exception of footnotes that may be required by GAAP) and fairly present the financial condition of the Company and its results of operation for the period specified, subject to year-end audit adjustment; and
(f) such other information relating to the financial condition, business business, prospects or corporate affairs of the Company as the any Major 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 3.1 to provide information (i) that it deems the Company reasonably determines in good faith to be a trade secret or similar confidential informationinformation (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. The Company shall, upon request, shall deliver to each Investor (or transferee of an Investor) that holds at least eight hundred forty-six thousand eight hundred thirty-five (846,835) shares of Registrable Securities and each of BioStratum Incorporated (or, in the event of a BioStratum Dissolution, the BioStratum Transferees) and Vanderbilt University (“Vanderbilt”) so long as, respectively, BioStratum Incorporated (or the BioStratum Transferees as a collective) continue to hold at least fifty percent (50%) of the shares of the capital stock of the Company held by BioStratum as of the date hereof and Vanderbilt continues to hold at least fifty percent (50%) of the shares of capital stock held by Vanderbilt as of the date hereof (each as equitably adjusted for stock splits, stock dividends, combinations, recapitalizations, and the like after the Recapitalization (as defined in the Restated Certificate)) (each, a “Major Investor”)::
(a) as soon as practicable, but in any event within ninety one hundred twenty (90120) days after the end of each fiscal year of the Company, an income statement for such fiscal year, (A) a balance sheet of the Company and statement of stockholders’ equity as of the end of such year, (B) statements of income and a statement of cash flows for such year, and a comparison between (x) the actual amounts as of and for such fiscal year and (y) the comparable amounts for the prior year and as included in the Budget (as defined 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 stockholder’s equity as of the end of such fiscal year, all such financial reports to be in reasonable detail, statements prepared in accordance with generally accepted accounting principles (“GAAP”), GAAP and audited and certified by independent public accountants of nationally recognized standing selected by the Company;
(b) as soon as practicable, but in any event within thirty (30) days after the end of each of the first three four (34) quarters of each fiscal year year, unaudited statements of the Company, an unaudited income statement, statement and of cash flows for such fiscal quarter quarter, and an unaudited balance sheet and a statement of stockholder’s equity as of the end of such fiscal 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 twenty thirty (2030) 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 cash flows and balance sheet for and 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 reasonable detailthe 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);
(de) as soon as practicable, but in any event at least thirty (30) days prior to before the end of each fiscal year, a budget and business plan for the next fiscal yearyear (collectively, prepared on the “Budget”), approved by the Board of Directors (including a monthly basismajority of the Preferred Directors), including balance sheets, income statements statements, and statements of cash flows for such months flow and, as soon as promptly after prepared, any other budgets or revised budgets prepared by the Company;
(ef) with respect to the financial statements called for in subsections (bSection 3.1(a), Section 3.1(b) and (c) of this Section 2.13.1(c), an instrument executed by the Chief Financial Officer or President of the Company and the CEO certifying that such financials financial statements were prepared in accordance with GAAP consistently applied with prior practice for earlier periods (with the exception of footnotes that may be required by GAAPexcept 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 period specified, subject to year-end audit adjustmentperiods specified therein; and
(fg) such other information relating to the financial condition, business 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 the 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 subsection (f) or any other subsection of Section 2.1 3.1 to provide information (A) that it deems the Company reasonably determines in good faith to be a trade secret or similar highly confidential informationinformation (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. The Company shall, upon request, shall deliver to each Investor (or transferee of an Investor) that holds at least eight hundred forty-six thousand eight hundred thirty-five (846,835) shares of Registrable Securities and each of BioStratum Incorporated (or, in the event of a BioStratum Dissolution, the BioStratum Transferees) and Vanderbilt University (“Vanderbilt”) so long as, respectively, BioStratum Incorporated (or the BioStratum Transferees as a collective) continue to hold at least fifty percent (50%) of the shares of the capital stock of the Company held by BioStratum as of the date hereof and Vanderbilt continues to hold at least fifty percent (50%) of the shares of capital stock held by Vanderbilt as of the date hereof (each as equitably adjusted for stock splits, stock dividends, combinations, recapitalizations, and the like after the Recapitalization (as defined in the Restated Certificate)) (each, a “Major Investor”)::
(ai) as soon as practicable, but in any event within ninety one hundred twenty (90120) days after the end of each fiscal year of the CompanyCompany (1) a balance sheet as of the end of such year, an (2) statements of income statement and 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 (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 balance sheet of the Company and statement of stockholders’ equity as of the end of such year, and a statement of cash flows for all such year, such year-end financial reports to be in reasonable detail, prepared in accordance with generally accepted accounting principles (“GAAP”), and statements audited and certified by independent public accountants of nationally or regionally recognized standing selected by the Company;
(bii) as soon as practicable, but in any event within thirty forty-five (3045) days after the end of each of the first three (3) quarters of such fiscal year of the Company, 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 (1) be subject to normal year-end adjustments; and (2) 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, an unaudited income statement, a statement showing the number of cash flows shares of each class and series of capital stock and securities convertible into or exercisable for such fiscal quarter and an unaudited balance sheet as shares of capital stock outstanding at the end of such fiscal quarterthe 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 Investor to calculate its percentage equity ownership in the Company, and certified by the chief financial officer or chief executive officer of the Company as being true, complete, and correct;
(civ) within twenty if the Company prepares a Budget (20) days of the end of each monthas defined below), an unaudited income statement and statement of cash flows and balance sheet for and as of the end of such month, in reasonable detail;
(d) then as soon as practicable, but in any event at least thirty (30) days prior to before the end of each fiscal year, a budget and business plan for the next fiscal yearyear (collectively, the “Budget”), approved by the Board of Directors and prepared on a monthly basis, including balance sheets, income statements statements, and statements of cash flows flow for such months and, as soon as promptly after 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 certifying that such financials were prepared in accordance with GAAP consistently applied with prior practice for earlier periods (with the exception of footnotes that may be required by GAAP) and fairly present the financial condition of the Company and its results of operation for the period specified, subject to year-end audit adjustment; and
(fv) such other information relating to the financial condition, business 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 (fSection 10(a) or any other subsection of Section 2.1 to provide information (1) that it deems the Company reasonably determines in good faith to be a trade secret or similar confidential informationinformation (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 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 (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 10(a) shall be reinstated at such time as the Company is no longer actively employing its commercially reasonable efforts to cause such registration statement to become effective. 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 addition to the items described in this Section 10.
Appears in 1 contract
Delivery of Financial Statements. The Company shall, upon request, shall deliver to each Investor (or transferee of an Investor) that holds at least eight hundred forty-six thousand eight hundred thirty-five (846,835) shares of Registrable Securities and each of BioStratum Incorporated (or, in the event of a BioStratum Dissolution, the BioStratum Transferees) and Vanderbilt University (“Vanderbilt”) so long as, respectively, BioStratum Incorporated (or the BioStratum Transferees as a collective) continue to hold at least fifty percent (50%) of the shares of the capital stock of the Company held by BioStratum as of the date hereof and Vanderbilt continues to hold at least fifty percent (50%) of the shares of capital stock held by Vanderbilt as of the date hereof (each as equitably adjusted for stock splits, stock dividends, combinations, recapitalizations, and the like after the Recapitalization (as defined in the Restated Certificate)) (each, a “Major Investor”)::
(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 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’ stockholder's equity as of the end of such year, year and a statement of cash flows for such year, such year-end financial reports to be in reasonable detail, prepared in accordance with generally accepted accounting principles (“"GAAP”"), and audited and certified by independent public accountants of nationally recognized standing selected by the Company;; and
(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 thirty forty-five (3045) days after the end of each of the first three (3) quarters of each fiscal year of the Company, an unaudited income profit or loss statement, statement of cash flows for such fiscal quarter and an unaudited balance sheet as of the end of such fiscal quarter;
(cii) within twenty thirty (2030) days of the end of each month, an unaudited income statement and statement, statement of cash flows and balance sheet for and as of the end of such month, in reasonable detail;
(diii) 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 or operating plan for the next fiscal yearyear in the form approved by the Board of Directors of the Company, prepared on a monthly basis, basis including balance sheets, income sheets and sources and applications of funds statements and statements of cash flows for such months and, as soon as prepared, any other budgets or revised budgets prepared by the Company;
(eiv) with respect to the financial statements called for in subsections (bi) and (cii) of this Section 2.12.1(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 (with the exception of footnotes that may be required by GAAP) and fairly present the financial condition of the Company and its results of operation for the period specified, subject to year-end audit adjustment; and
(f) such other information relating to the 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 (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.the
Appears in 1 contract
Sources: Investors Rights Agreement (Introbiotics Phamaceuticals Inc)
Delivery of Financial Statements. The Company shall, upon request, shall deliver to each Investor (or transferee of an Investor) that holds at least eight hundred forty-six thousand eight hundred thirty-five (846,835) shares of Registrable Securities and each of BioStratum Incorporated (or, in the event of a BioStratum Dissolution, the BioStratum Transferees) and Vanderbilt University (“Vanderbilt”) so long as, respectively, BioStratum Incorporated (or the BioStratum Transferees as a collective) continue to hold at least fifty percent (50%) of the shares of the capital stock of the Company held by BioStratum as of the date hereof and Vanderbilt continues to hold at least fifty percent (50%) of the shares of capital stock held by Vanderbilt as of the date hereof (each as equitably adjusted for stock splits, stock dividends, combinations, recapitalizations, and the like after the Recapitalization (as defined in the Restated Certificate)) (each, a “Major Investor”):Investors:
(a) as soon as practicable, but in any event within ninety one hundred fifty (90150) days after the end of each fiscal year of the Company, an income statement for such fiscal year, Company (i) a balance sheet as of the Company 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, and a statement of cash flows for all such year, such year-end financial reports statements 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 Companystanding;
(b) as soon as practicable, but in any event within thirty forty-five (3045) days after the end of each of the first three (3) quarters of each fiscal year of the Company, an unaudited statements of income statement, statement of 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);
(c) as soon as practicable, but in any event within twenty forty-five (2045) days of after the end of each monthquarter of each fiscal year of the Company, an unaudited income a statement showing the number of shares of each class and statement series of cash flows capital stock and balance sheet securities convertible into or exercisable for and as shares of capital stock outstanding at the end of such monththe 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 reasonable detailsufficient 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 at least within thirty (30) days prior 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 yearyear (collectively, the “Budget”), prepared on a monthly basis, including balance sheets, income statements statements, and statements of cash flows flow for such months and, as soon as promptly after 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 certifying that such financials were prepared in accordance with GAAP consistently applied with prior practice for earlier periods (with the exception of footnotes that may be required by GAAP) and fairly present the financial condition of the Company and its results of operation for the period specified, subject to year-end audit adjustment; and
(f) such other information relating to the financial condition, business business, prospects, or corporate affairs of the Company as the any Major 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 4.1 to provide information (i) that it deems the Company reasonably determines in good faith to be a trade secret or similar confidential informationinformation (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. The Company shall, upon request, shall deliver to each Investor (or transferee of an Investor) that holds at least eight hundred forty-six thousand eight hundred thirty-five (846,835) shares of Registrable Securities and each of BioStratum Incorporated (or, in the event of a BioStratum Dissolution, the BioStratum Transferees) and Vanderbilt University (“Vanderbilt”) so long as, respectively, BioStratum Incorporated (or the BioStratum Transferees as a collective) continue to hold at least fifty percent (50%) of the shares of the capital stock of the Company held by BioStratum as of the date hereof and Vanderbilt continues to hold at least fifty percent (50%) of the shares of capital stock held by Vanderbilt as of the date hereof (each as equitably adjusted for stock splits, stock dividends, combinations, recapitalizations, and the like after the Recapitalization (as defined in the Restated Certificate)) (each, a “Major Investor”)::
(a) as soon as practicable, but in any event within ninety one hundred twenty (90120) days after the end of each fiscal year of the CompanyCompany (i) a balance sheet as of the end of such year, an (ii) statements of income statement 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 balance sheet schedule as to the sources and applications of the Company funds for such year, and (iii) a statement of stockholders’ equity as of the end of such year, and a statement of cash flows for all such year, such year-end financial reports to be in reasonable detail, prepared in accordance with generally accepted accounting principles (“GAAP”), and statements audited and certified by independent public accountants of nationally regionally recognized standing selected by the Company;
(b) as soon as practicable, but in any event within thirty (30) days after the end of each of the first three (3) quarters of each fiscal year of the Company, an unaudited statements of income statement, statement of 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);
(c) as soon as practicable, but in any event within twenty thirty (2030) days after the end of each quarter of each fiscal year of the Company, a statement showing the number of shares of each class and series of capital stock and securities convertible into or exercisable for shares of capital stock outstanding at the end of the period, the Common Stock issuable upon conversion or exercise of any outstanding securities convertible or exercisable for Common Stock and the exchange ratio or exercise price applicable thereto, and the number of shares of issued stock options and stock options not yet issued but reserved for issuance, if any, all in sufficient detail as to permit the Major Investors to calculate their respective percentage equity ownership in the Company;
(d) as soon as practicable, but in any event within fifteen (15) days of the end of each month, an unaudited income statement and statement of cash flows for such month, and an unaudited balance sheet for and as of the end of such month, all prepared in reasonable detailaccordance 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);
(de) as soon as practicable, but in any event at least thirty (30) days prior to before the end of each fiscal year, a budget and business plan for the next fiscal yearyear (collectively, the “Budget”), approved by the Board of Directors and prepared on a monthly basis, including balance sheets, income statements statements, and statements of cash flows flow for such months and, as soon as promptly after 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 certifying that such financials were prepared in accordance with GAAP consistently applied with prior practice for earlier periods (with the exception of footnotes that may be required by GAAP) and fairly present the financial condition of the Company and its results of operation for the period specified, subject to year-end audit adjustment; and
(f) such other information relating to the financial condition, business business, prospects, or corporate affairs of the Company as the any Major 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 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 it deems the Company reasonably determines in good faith to be a trade secret or similar confidential informationinformation (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. (a) The Company shall, upon request, shall deliver to each Investor (or transferee of an Investor) that holds at least eight hundred forty-six thousand eight hundred thirty-five (846,835) shares of Registrable Securities and each of BioStratum Incorporated (or, in the event of a BioStratum Dissolution, the BioStratum Transferees) and Vanderbilt University (“Vanderbilt”) so long as, respectively, BioStratum Incorporated (or the BioStratum Transferees as a collective) continue to hold at least fifty percent (50%) of the shares of the capital stock of the Company held by BioStratum as of the date hereof and Vanderbilt continues to hold at least fifty percent (50%) of the shares of capital stock held by Vanderbilt as of the date hereof (each as equitably adjusted for stock splits, stock dividends, combinations, recapitalizations, and the like after the Recapitalization (as defined in the Restated Certificate)) (each, a “Major Investor”)::
(ai) as soon as practicable, but in any event within ninety (90) 90 days after the end of each fiscal year of the Company, an income statement for such fiscal year, Company (A) a balance sheet as of the Company end of such year, (B) statements of income and of cash flows for such year, and (C) a statement of stockholders’ equity as of the end of such year, and a statement of cash flows for all such year, such year-end financial reports to be in reasonable detail, statements prepared in accordance with generally accepted accounting principles (“GAAP”), GAAP and audited and certified by independent public accountants of nationally regionally recognized standing selected by the Company;
(bii) as soon as practicable, but in any event within thirty (30) 45 days after the end of each of the first three (3) quarters quarter of each fiscal year of the Company, an unaudited statements of income statement, statement of and cash flows for such fiscal quarter quarter, and an unaudited balance sheet and a statement of stockholders’ equity as of the end of such fiscal quarter, all prepared in accordance with GAAP (except that such financial statements may (A) be subject to normal year-end audit adjustments; and (B) not contain all notes thereto that may be required in accordance with GAAP);
(c) within twenty (20) days of the end of each month, an unaudited income statement and statement of cash flows and balance sheet for and as of the end of such month, in reasonable detail;
(diii) as soon as practicable, but in any event at least thirty (30) within 45 days prior to after the end of each quarter of each fiscal yearyear of the Company, a budget statement showing the number of shares of each class and business plan series of Capital Stock and securities convertible into or exercisable for shares of Capital Stock outstanding at the next fiscal yearend of the period, prepared on a monthly basisthe 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, including balance sheetsand the number of shares of issued stock options and stock options not yet issued but reserved for issuance, income statements and statements of cash flows for such months andif any, all in sufficient detail as soon as prepared, any other budgets or revised budgets prepared by to permit the Investors to calculate their respective percentage equity ownership in 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 certifying that such financials were prepared in accordance with GAAP consistently applied with prior practice for earlier periods (with the exception of footnotes that may be required by GAAP) and fairly present the financial condition of the Company and its results of operation for the period specified, subject to year-end audit adjustment; and
(f) 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, if the information required by this subsection is contained in the financial 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 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 shall not be obligated Company’s covenants under this subsection (f) or any other subsection of Section 2.1 3.1 shall be reinstated at such time as the Company is no longer actively employing its commercially reasonable efforts to provide information that it deems in good faith cause such registration statement to be a trade secret or similar confidential informationbecome effective.
Appears in 1 contract
Sources: Investors’ Rights Agreement (Target Global Acquisition I Corp.)
Delivery of Financial Statements. The Company shall, upon request, shall deliver to each Investor (or transferee of an Investor) that holds at least eight hundred forty-six thousand eight hundred thirty-five (846,835) shares of Registrable Securities and each of BioStratum Incorporated (or, in the event of a BioStratum Dissolution, the BioStratum Transferees) and Vanderbilt University (“Vanderbilt”) so long as, respectively, BioStratum Incorporated (or the BioStratum Transferees as a collective) continue to hold at least fifty percent (50%) of the shares of the capital stock of the Company held by BioStratum as of the date hereof and Vanderbilt continues to hold at least fifty percent (50%) of the shares of capital stock held by Vanderbilt as of the date hereof (each as equitably adjusted for stock splits, stock dividends, combinations, recapitalizations, and the like after the Recapitalization (as defined in the Restated Certificate)) (each, a “Major Investor”)::
(a) as soon as practicable, but in any event within ninety (90) days after the end of each fiscal year of the Company, an (i) a balance sheet as of the end of such year, (ii) statements of income statement 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 balance sheet schedule as to the sources and applications of the Company funds for such year, and (iii) a statement of stockholders’ equity as of the end of such year, and a statement of cash flows for all such year, such year-end financial reports to be in reasonable detail, prepared in accordance with generally accepted accounting principles (“GAAP”), and statements audited and certified by independent public accountants of nationally regionally recognized standing selected by the CompanyCompany and approved by the Board of Directors, which approval must include including the Preferred Directors (as defined in the Voting Agreement);
(b) as soon as practicable, but in any event within thirty forty-five (3045) days after the end of each of the first three (3) quarters of each fiscal year of the Company, an unaudited statements of income statement, statement and of cash flows for such fiscal quarter quarter, and an unaudited balance sheet and a statement of stockholders’ equity as of the end of such fiscal quarter, all prepared in accordance with GAAP (except that such financial statements may (i) be subject to normal year-end audit adjustments and (ii) not contain all notes thereto that may be required in accordance with GAAP);
(c) within twenty (20) days of as soon as practicable after the end of each monthof the first three (3) quarters of each fiscal year of the Company, an unaudited income a statement showing the number of shares of each class and statement series of cash flows capital stock and balance sheet securities convertible into or exercisable for and as shares of capital stock outstanding at the end of such monththe 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 reasonable detail;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 at least thirty (30) days prior to before the end of each fiscal year, a budget and business plan for the next fiscal yearyear (collectively, the “Budget”), approved by the Board of Directors and prepared on a monthly basis, including balance sheets, income statements statements, and statements of cash flows flow for such months and, as soon as promptly after prepared, any other budgets or revised budgets prepared by the Company;
(e) . If, for any period, the Company has any subsidiary whose accounts are consolidated with those of the Company, then in respect to of such period the financial statements called for in subsections (b) delivered pursuant to the foregoing sections shall be the consolidated and (c) of this Section 2.1, an instrument executed by the Chief Financial Officer or President of the Company certifying that such financials were prepared in accordance with GAAP consistently applied with prior practice for earlier periods (with the exception of footnotes that may be required by GAAP) and fairly present the consolidating financial condition statements of the Company and its results of operation for 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 specified, subject to yearstarting with the date thirty (30) days before the Company’s good-end audit adjustment; and
(f) such other information relating to the financial condition, business or corporate affairs faith estimate of the Company 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 Major Investor may from time Company is no longer actively employing its commercially reasonable efforts to time request, provided, however, that the Company shall not be obligated under this subsection (f) or any other subsection of Section 2.1 cause such registration statement to provide information that it deems in good faith to be a trade secret or similar confidential informationbecome effective.
Appears in 1 contract
Sources: Investors’ Rights Agreement (Apellis Pharmaceuticals, Inc.)
Delivery of Financial Statements. The Company shall, upon request, shall deliver to each Investor (or transferee of an Investor) that holds at least eight hundred forty-six thousand eight hundred thirty-five Five Hundred Thousand (846,835500,000) shares of Registrable Securities and each of BioStratum Incorporated (or, in the event of a BioStratum Dissolution, the BioStratum Transferees) and Vanderbilt University (“Vanderbilt”) so long as, respectively, BioStratum Incorporated (or the BioStratum Transferees as a collective) continue subject to hold at least fifty percent (50%) of the shares of the capital stock of the Company held by BioStratum as of the date hereof and Vanderbilt continues to hold at least fifty percent (50%) of the shares of capital stock held by Vanderbilt as of the date hereof (each as equitably adjusted appropriate adjustment for stock splits, stock dividends, combinations, combination and other recapitalizations, and the like after the Recapitalization (as defined in the Restated Certificate)) (eacheach such Investor, a “Major Qualified Investor”):
(a) as soon as practicable, 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’ stockholder’s equity as of the end of such year, and a statement schedule as to the sources and applications of cash flows funds for such year, such year-end financial reports to be in reasonable detail, prepared in accordance with generally accepted accounting principles (“GAAP”), and audited and certified by independent public accountants of nationally recognized standing selected by the Company;
(b) as soon as practicable, but in any event within thirty forty-five (3045) days after the end of each of the first three (3) quarters of each fiscal year of the Company, an unaudited income profit or loss statement, statement schedule as to the sources and application of cash flows funds for such fiscal quarter and quarter, an unaudited balance sheet and a statement of stockholder’s equity as of the end of such fiscal quarterquarter and a statement showing the number of shares of each class and series of capital stock and securities convertible into or exercisable for shares of capital stock outstanding at the end of the period, the number of common shares issuable upon conversion or exercise of any outstanding securities convertible or exercisable for common shares and the exchange ratio or exercise price applicable thereto, all in sufficient detail as to permit the Qualified Investor to calculate its percentage equity ownership in the Company;
(c) within twenty (20) days of the end of each month, an unaudited income statement and statement of cash flows and balance sheet for and as of the end of such month, in reasonable detail;
(d) as soon as practicable, but in any event at least thirty not less than forty-five (3045) days prior to the end of each fiscal year, a budget of sales and business expenses and operating plan for the next fiscal year, prepared on a monthly basis, including balance sheets, income sheets and sources and applications of funds statements and statements of cash flows for such months which such budget and 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;
(ed) with respect to the financial statements called for in subsections subsection (b) and (c) of this Section 2.1above, an instrument executed by the Corporation’s President or Chief Financial Officer or President of the Company certifying that such financials were prepared in accordance with GAAP consistently applied with prior practice for earlier periods (with the exception of footnotes that may be required by GAAP) and fairly present the financial condition of the Company and its results of operation for the period specified, subject to year-end audit adjustment; and
(fe) such other information relating to the financial condition, business business, prospects or corporate affairs of the Company as the Major Qualified Investor may from time to time request, provided, however, that the Company shall not be obligated under this subsection (fe) or any other subsection of Section 2.1 to provide information that which it deems in 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. The Company shall, upon request, shall deliver to each Major Investor, provided that the Board of Directors has not reasonably determined that such Investor (or transferee of an Investor) that holds at least eight hundred forty-six thousand eight hundred thirty-five (846,835) shares of Registrable Securities and each of BioStratum Incorporated (or, in the event of is a BioStratum Dissolution, the BioStratum Transferees) and Vanderbilt University (“Vanderbilt”) so long as, respectively, BioStratum Incorporated (or the BioStratum Transferees as a collective) continue to hold at least fifty percent (50%) Competitor of the shares of the capital stock of the Company held by BioStratum as of the date hereof and Vanderbilt continues to hold at least fifty percent (50%) of the shares of capital stock held by Vanderbilt as of the date hereof (each as equitably adjusted for stock splits, stock dividends, combinations, recapitalizations, and the like after the Recapitalization (as defined in the Restated Certificate)) (each, a “Major Investor”):Company:
(a) as soon as practicable, but in any event within ninety (90) days after no later than June 30th following the end of each fiscal year of the CompanyCompany (i) a balance sheet as of the end of such year, an (ii) statements of income statement 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 balance sheet schedule as to the sources and applications of the Company funds for such year, and (iii) a statement of stockholders’ equity as of the end of such year, and a statement of cash flows for all such year, such year-end financial reports to be in reasonable detail, prepared in accordance with generally accepted accounting principles (“GAAP”), and statements audited and certified by independent public accountants of nationally recognized standing selected by the CompanyCompany 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;
(b) as soon as practicable, but in any event within thirty forty-five (3045) days after the end of each of the first three (3) quarters of each fiscal year of the Company, an unaudited statements of income statement, statement of and cash flows for such fiscal quarter 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);
(c) as soon as practicable, but in any event within twenty forty-five (2045) days of after the end of each monthof the first three (3) quarters of each fiscal year of the Company, an unaudited income a statement showing the number of shares of each class and statement series of cash flows capital stock and balance sheet securities convertible into or exercisable for and as shares of capital stock outstanding at the end of such monththe 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 reasonable detailsufficient 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 at least thirty (30) days prior to before the end of each fiscal year, a budget and business plan for the next fiscal yearyear (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 statements, and statements of cash flows flow for such months and, as soon as promptly after prepared, any other budgets or revised budgets prepared by the CompanyCompany 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 subsections (bSubsection 3.1(a) and (c) of this Section 2.1Subsection 3.1(b), an instrument executed by the Chief Financial Officer or President chief financial officer and chief executive officer of the Company certifying that such financials financial statements were prepared in accordance with GAAP consistently applied with prior practice for earlier periods (with the exception of footnotes that may be required by GAAPexcept 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 period specified, subject to year-end audit adjustmentperiods specified therein; and
(f) such other information relating to the financial condition, business business, prospects, or corporate affairs of the Company as the any Major 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 Subsection 3.1 to provide information (i) that it deems the Company reasonably determines in good faith to be a trade secret or similar confidential informationinformation (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
Delivery of Financial Statements. The Company shall, upon request, shall deliver to BWAY and to each Investor (or transferee holder of an Investor) that Preferred Shares who holds at least eight hundred forty-six thousand eight hundred thirty-five (846,835) shares of Registrable Securities and each of BioStratum Incorporated (or, in the event of a BioStratum Dissolution, the BioStratum Transferees) and Vanderbilt University (“Vanderbilt”) so long as, respectively, BioStratum Incorporated (or the BioStratum Transferees as a collective) continue to hold at least fifty percent (50%) 2% of the shares of the issued and outstanding share capital stock of the Company held by BioStratum on an as of the date hereof and Vanderbilt continues to hold at least fifty percent (50%) of the shares of capital stock held by Vanderbilt as of the date hereof (each as equitably adjusted for stock splits, stock dividends, combinations, recapitalizations, and the like after the Recapitalization (as defined in the Restated Certificate)) (each, a “Major Investor”):converted basis:
(a) as soon as practicable, but in any event within ninety sixty (9060) days after the end of each fiscal year of the CompanyCompany (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), an income financial statement for such fiscal year, including (i) a consolidated balance sheet as of the Company end of such year, (ii) statements of income and of cash flows for such year, (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, and a statement of cash flows setting forth in each case in comparative form the figure for such the previous fiscal year, such year-end financial reports to be all in reasonable detail, in NIS with United State dollar- convenience translation, prepared in accordance with generally accepted GAAP, audited by an accounting principles firm of international standing, and in a form reasonably acceptable to BWAY and KT Squared, LLC (“GAAPKT”), and audited and certified by independent public accountants of nationally recognized standing selected by the Company;
(b) as soon as practicable, but in any event within thirty (30) days after the end of each of the first three (3) quarters of each fiscal year of the Company, unaudited financial statements for such quarter, including an unaudited income statement, statement of cash flows for such fiscal quarter and an unaudited consolidated balance sheet of the Company as at the end of each such period and unaudited consolidated statements of income and cash flow of the Company for the period from the beginning of the current fiscal year to the end of such quarterly period, setting forth in each case in comparative form the figures for the corresponding period of the previous fiscal quarteryear, all in reasonable detail, in NIS with United States dollar convenience translation and signed by the chief financial officer (or if none, by the chief executive officer) of the Company, and in a form reasonably acceptable to BWAY and 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 (2021) days of the end of each monthfiscal quarter of the Company, an unaudited income if any changes have occurred within said quarter, a statement showing the number of shares of each class and statement series of cash flows share capital and balance sheet securities convertible into or exercisable for and as of share capital outstanding at the end of such monththe 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 reasonable detailsufficient 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) 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) with respect to the financial statements called for in subsections (b) and (c) of this Section 2.1, an instrument executed by the Chief Financial Officer or President of the Company certifying that such financials were prepared in accordance with GAAP consistently applied with prior practice for earlier periods (with the exception of footnotes that may be required by GAAP) and fairly present the financial condition of the Company and its results of operation for the period specified, subject to year-end audit adjustment; and
(f) such other information relating to the financial condition, business or corporate affairs of the Company as the Major any Investor may from time to time request, provided, however, reasonably request that the Company shall not be obligated under this subsection (f) or any other subsection of Section 2.1 is customary to provide information that it deems in good faith to be a trade secret or similar confidential informationshareholder.
Appears in 1 contract
Delivery of Financial Statements. The Company shall, upon request, shall deliver to each Investor (or transferee Major Stockholder, provided that the Board of an Investor) Directors has not reasonably determined that holds at least eight hundred forty-six thousand eight hundred thirty-five (846,835) shares of Registrable Securities and each of BioStratum Incorporated (or, in the event of such Major Stockholder is a BioStratum Dissolution, the BioStratum Transferees) and Vanderbilt University (“Vanderbilt”) so long as, respectively, BioStratum Incorporated (or the BioStratum Transferees as a collective) continue to hold at least fifty percent (50%) Competitor of the shares of the capital stock of the Company held by BioStratum as of the date hereof and Vanderbilt continues to hold at least fifty percent (50%) of the shares of capital stock held by Vanderbilt as of the date hereof (each as equitably adjusted for stock splits, stock dividends, combinations, recapitalizations, and the like after the Recapitalization (as defined in the Restated Certificate)) (each, a “Major Investor”):Company:
(a) as soon as practicable, but in any event within ninety (90A) 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 CompanyCompany thereafter, an (i) a balance sheet as of the end of such year, (ii) statements of income statement and cash flows for such year, and a comparison between (x) the actual amounts as of and for such fiscal year, a balance sheet 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 stockholders’ equity as of the end of such fiscal year, and a statement of cash flows for all such year, such year-end financial reports to be in reasonable detail, prepared in accordance with generally accepted accounting principles (“GAAP”), and statements audited and certified by independent public accountants of nationally regionally recognized standing selected by the Company;
(b) as soon as practicable, but in any event within thirty forty-five (3045) days after the end of each of the first three (3) quarters quarter of each fiscal year of the CompanyCompany beginning with the fourth quarter of the fiscal year ending December 31, an unaudited income statement2024, statement of cash flows for such fiscal quarter and (i) an unaudited balance sheet as of the end of such fiscal quarter;
, (cii) within twenty unaudited statements of income and cash flows for such fiscal quarter and (20iii) days of the end of each month, an unaudited income statement and a statement of cash flows and balance sheet for and stockholders’ equity as of the end of such month, fiscal quarter; all prepared in reasonable detailaccordance 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);
(dc) as soon as practicable, but in any event at least thirty within forty-five (3045) days prior to after the end of each quarter of each fiscal yearyear of the Company, a budget statement showing the number of shares of each class and business plan series of capital stock and securities convertible into or exercisable for shares of capital stock outstanding at the next fiscal yearend of the period, prepared on a monthly basisthe 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, including balance sheetsand the number of shares of issued stock options and stock options not yet issued but reserved for issuance, income statements and statements of cash flows for such months andif any, all in sufficient detail as soon as prepared, any other budgets or revised budgets prepared by to permit the Major Stockholders to calculate their respective percentage equity ownership in 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 certifying that such financials were prepared in accordance with GAAP consistently applied with prior practice for earlier periods (with the exception of footnotes that may be required by GAAP) and fairly present the financial condition of the Company and its results of operation for the period specified, subject to year-end audit adjustment; and
(fd) such other information relating to the financial condition, business business, prospects, or corporate affairs of the Company as the any Major Investor Stockholder 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 3.1 to provide information (i) that it deems the Company reasonably determines in good faith to be a trade secret secret; or similar confidential information(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 1 contract
Delivery of Financial Statements. The Company shall, upon request, deliver to each Investor (or transferee of an Investor) that (individually or collectively with its Affiliates) holds at least eight hundred forty-six thousand eight hundred thirty-five (846,835) 500,000 shares of Registrable Securities and each of BioStratum Incorporated (or, in the event of a BioStratum Dissolution, the BioStratum Transferees) and Vanderbilt University (“Vanderbilt”) so long as, respectively, BioStratum Incorporated (or the BioStratum Transferees as a collective) continue to hold at least fifty percent (50%) of the shares of the capital stock of the Company held by BioStratum as of the date hereof and Vanderbilt continues to hold at least fifty percent (50%) of the shares of capital stock held by Vanderbilt as of the date hereof (each as equitably appropriately adjusted for any stock splitssplit, stock dividendsdividend, combinations, recapitalizations, and the like after the Recapitalization (as defined in the Restated Certificate)combination or other recapitalization) (each, a “Major Investor”):
(a) as soon as practicable, but in any event within ninety (90) days after the end of each fiscal year of the Company, an (i) a balance sheet as of the end of such year, (ii) statements of income statement 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 balance sheet schedule as to the sources and applications of the Company funds for such year, and (iii) a statement of stockholders’ equity as of the end of such year, and a statement of cash flows for all such year, such year-end financial reports to be in reasonable detail, prepared in accordance with generally accepted accounting principles (“GAAP”), and statements audited and certified by independent public accountants of nationally recognized standing selected by the Company;
(b) as soon as practicable, but in any event within thirty forty-five (3045) days after the end of each of the first three (3) quarters of each fiscal year of the Company, an unaudited statements of income statement, statement and of cash flows for such fiscal quarter and quarter, an unaudited balance sheet and a statement of stockholders’ equity as of the end of such fiscal quarter, all prepared in accordance with GAAP (except that such financial statements may (i) be subject to normal year-end audit adjustments and (ii) not contain all notes thereto that may be required in accordance with GAAP);
(c) as soon as practicable, but in any event within twenty the earlier of (20i) 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 for and statement of stockholders’ equity as of the end of such month, all prepared in reasonable detailaccordance 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 at least thirty (30) days prior to 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 flows flow for such months and, as soon as promptly after 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 certifying that such financials were prepared in accordance with GAAP consistently applied with prior practice for earlier periods (with the exception of footnotes that may be required by GAAP) and fairly present the financial condition of the Company and its results of operation for the period specified, subject to year-end audit adjustment; and
(fe) 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 (fe) 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. The Company shall, upon request, shall deliver to each Investor (or transferee of an Investor) that holds at least eight hundred forty-six thousand eight hundred thirty-five (846,835) shares of Registrable Securities and each of BioStratum Incorporated (or, in the event of a BioStratum Dissolution, the BioStratum Transferees) and Vanderbilt University (“Vanderbilt”) so long as, respectively, BioStratum Incorporated (or the BioStratum Transferees as a collective) continue to hold at least fifty percent (50%) of the shares of the capital stock of the Company held by BioStratum as of the date hereof and Vanderbilt continues to hold at least fifty percent (50%) of the shares of capital stock held by Vanderbilt as of the date hereof (each as equitably adjusted for stock splits, stock dividends, combinations, recapitalizations, and the like after the Recapitalization (as defined in the Restated Certificate)) (each, a “Major Investor”):, provided that the Board of Directors has not reasonably determined that such Major Investor is a Competitor:
(a) as soon as practicable, but in any event within ninety forty-five (9045) days after the end of each fiscal year of the CompanyCompany (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 eighty (180) days after the end of each fiscal year of the Company (i) a balance sheet as of the end of such year, (ii) statements of income statement 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 balance sheet schedule as to the sources and applications of the Company funds for such year, and (iii) a statement of stockholders’ equity as of the end of such year, and a statement of cash flows for all such year, such year-end financial reports to be in reasonable detail, prepared in accordance with generally accepted accounting principles (“GAAP”), and statements audited and certified by independent public accountants of nationally recognized standing selected by the Company;
(bc) as soon as practicable, but in any event within thirty forty-five (3045) days after the end of each of the first three (3) quarters of each fiscal year of the Company, an (A) unaudited statements of income statement, statement of and cash flows for such fiscal quarter quarter, and an unaudited balance sheet and a statement of stockholders’ equity as of the end of such fiscal quarter;
, all prepared in accordance with GAAP (cexcept that such financial statements may (i) within twenty be subject to normal year-end audit adjustments; (20ii) days 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 end comparable amounts as included in the Budget for such quarter, with an explanation of each monthany material differences between such amounts, and (iii) an unaudited income statement and statement of cash flows and balance sheet for and stockholders’ equity as of the end of such month, in reasonable detailquarter;
(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 least the end of the period, the Common Stock issuable upon conversion or exercise of any outstanding securities convertible or exercisable for Common Stock and the exchange ratio or exercise price applicable thereto, and the number of shares of issued stock options and stock options not yet issued but reserved for issuance, if any, all in sufficient detail as to permit the Major Investors to calculate their respective percentage equity ownership in the Company, and certified by the chief financial officer or chief executive officer of the Company as being true, complete, and correct;
(e) as soon as practicable, but in any event within thirty (30) days prior 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 yearyear (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 statements, and statements of cash flows flow for such months and, as soon as promptly after 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 certifying that such financials were prepared in accordance with GAAP consistently applied with prior practice for earlier periods (with the exception of footnotes that may be required by GAAP) and fairly present the financial condition of the Company and its results of operation for the period specified, subject to year-end audit adjustment; and
(fg) such other information relating to the financial condition, business business, prospects, or corporate affairs of the Company as the any Major 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 Subsection 3.1 to provide information (i) that it deems the Company reasonably determines in good faith to be a trade secret or similar confidential informationinformation (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. The Company shall, upon request, shall deliver to (x) each Investor (or transferee of an Investor) that holds at least eight hundred forty-six thousand eight hundred thirty-five (846,835) 6,000,000 shares of Registrable Securities and each of BioStratum Incorporated Preferred Stock (or, in the event of a BioStratum Dissolution, the BioStratum Transferees) and Vanderbilt University (“Vanderbilt”) so long as, respectively, BioStratum Incorporated (or the BioStratum Transferees as a collective) continue subject to hold at least fifty percent (50%) of the shares of the capital stock of the Company held by BioStratum as of the date hereof and Vanderbilt continues to hold at least fifty percent (50%) of the shares of capital stock held by Vanderbilt as of the date hereof (each as equitably adjusted appropriate adjustment for stock splits, stock dividends, combinationscombinations or the like), recapitalizationsor, in the 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 the like after the Recapitalization (y) to each Investment Adviser (as defined in identified on the Restated Certificate)signature pages hereto) of any Investor that is an Advisory Account (each, a an “Major InvestorInformation Recipient”):
(a) (i) as soon as practicable, 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, detail and prepared in accordance with generally accepted accounting principles (“GAAP”), 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 Company, the Annual Financials audited and certified by independent public accountants of nationally recognized standing selected by the Company;
(b) as soon as practicable, but in any event within thirty forty-five (3045) days after the end of each of the first three (3) quarters of each fiscal year of the Company, an unaudited income statement, statement of cash flows for such fiscal quarter and an unaudited balance sheet as of the end of such fiscal quarter;
(c) upon request by any Information Recipient, within twenty thirty (2030) days of the end of each month, an unaudited income statement and statement of cash flows and balance sheet for and as of the end of such month, each in reasonable detail, together with a current summary capitalization table;
(d) as soon as practicableno later than five business days after approval thereof, but in any event at least thirty no later than sixty (3060) days prior to after the end of each fiscal year, a budget and business plan for the next fiscal year, prepared on a monthly basis, including balance sheets, income statements and statements of cash flows for such months fiscal year and, as soon as prepared, any other budgets or revised budgets prepared by the Company;
(e) with respect to as soon as practicable, but in any event no later than 15 business days after 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 occurrence of the Company certifying that such financials were prepared in accordance with GAAP consistently applied with prior practice for earlier periods (with event, notice of any stock split, stock dividend or other corporate event affecting the exception of footnotes that may be required by GAAP) and fairly present the financial condition capitalization of the Company and its results of operation for the period specified, subject to year-end audit adjustment; andCompany;
(f) such other information relating to the financial condition, business or corporate affairs of the Company as the Major Investor 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 materials, financial or otherwise, which the Company provides to its Board in connection with meetings of the Board; provided, however, that the Company reserves the right to exclude access to any materials (or portion thereof) if the Company believes upon the advice of counsel that such 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 (30) 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 reinstated at such time as the Company is no longer actively employing commercially reasonable efforts to cause such registration statement to become effective.
Appears in 1 contract
Delivery of Financial Statements. The Company shall, upon request, shall deliver to each Investor (or transferee of an Investor) that holds at least eight hundred forty-six thousand eight hundred thirty-five (846,835) shares of Registrable Securities and each of BioStratum Incorporated (or, in the event of a BioStratum Dissolution, the BioStratum Transferees) and Vanderbilt University (“Vanderbilt”) so long as, respectively, BioStratum Incorporated (or the BioStratum Transferees as a collective) continue to hold at least fifty percent (50%) of the shares of the capital stock of the Company held by BioStratum as of the date hereof and Vanderbilt continues to hold at least fifty percent (50%) of the shares of capital stock held by Vanderbilt as of the date hereof (each as equitably adjusted for stock splits, stock dividends, combinations, recapitalizations, and the like after the Recapitalization (as defined in the Restated Certificate)) (each, a “Major Investor”)::
(a) as soon as practicable, but in any event within ninety (90) 150 days after the end of each fiscal year of the Company (and no later than when provided to the Company’s lenders), an (i) a balance sheet as of the end of such year, (ii) statements of income statement 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 balance sheet schedule as to the sources and applications of the Company funds for such year, and (iii) a statement of stockholdersshareholders’ equity as of the end of such year, and a statement of cash flows for such year, such year-end with the financial reports to be in reasonable detail, prepared in accordance with generally accepted accounting principles (“GAAP”), and statements audited and certified by independent public accountants of nationally recognized standing selected by the Company;
(b) as soon as practicable, but in any event within thirty (30) 45 days after the end of each of the first three (3) quarters of each fiscal year of the Company, an unaudited statements of income statement, statement and of 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);
(c) as soon as practicable, but in any event within twenty 45 days after the end of each of the first three 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;
(20d) as soon as practicable, but in any event within 30 days of the end of each month, an unaudited income statement and statement of cash flows for such month, and an unaudited balance sheet for and as of the end of such month, all prepared in reasonable detailaccordance 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);
(de) as soon as practicable, but in any event at least thirty (30) 30 days prior to after the end start of each fiscal year, a budget and business plan for that fiscal year (collectively, the next fiscal year“Budget”), approved by the Board of Directors and prepared on a monthly basis, including balance sheets, income statements statements, and statements of cash flows flow for such months and, as soon as promptly after 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 certifying that such financials were prepared in accordance with GAAP consistently applied with prior practice for earlier periods (with the exception of footnotes that may be required by GAAP) and fairly present the financial condition of the Company and its results of operation for the period specified, subject to year-end audit adjustment; and
(f) such other information relating to the financial condition, business business, prospects, or corporate affairs of the Company as the any Major 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 3.1 to provide information (i) that it deems the Company reasonably determines in good faith to be a trade secret or similar confidential informationinformation (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. The Company shallUntil such time as the Maximum Earn Out Payment is paid to the Seller, upon request, the Buyer shall deliver the following to each Investor the Seller:
(or transferee of an Investora) that holds at least eight hundred forty-six thousand eight hundred thirty-five (846,835) shares of Registrable if the Buyer has not previously filed the financial statements set forth below with the Securities and each of BioStratum Incorporated (or, in the event of a BioStratum Dissolution, the BioStratum Transferees) and Vanderbilt University (Exchange Commission(the “Vanderbilt”) so long as, respectively, BioStratum Incorporated (or the BioStratum Transferees as a collective) continue to hold at least fifty percent (50%) of the shares of the capital stock of the Company held by BioStratum as of the date hereof and Vanderbilt continues to hold at least fifty percent (50%) of the shares of capital stock held by Vanderbilt as of the date hereof (each as equitably adjusted for stock splits, stock dividends, combinations, recapitalizations, and the like after the Recapitalization (as defined in the Restated Certificate)) (each, a “Major InvestorSEC”):
(ai) as soon as practicable, but in any event within ninety (90) 120 days after the end of each fiscal year of the Company, Buyer (or 135 days if the Buyer files for an income statement for such fiscal year, extension with the SEC of the filing of its Annual Report on Form 10-K) a balance sheet as of the Company end of such year, statements of income and of cash flows for such year and a 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 to be in reasonable detail, prepared in accordance with generally accepted accounting principles (“GAAP”), and 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 CompanyBuyer;
(bii) as soon as practicable, but in any event within thirty (30) 45 days after the end of each of the first three (3) quarters of each fiscal year of the CompanyBuyer (or 50 days if the Buyer files for an extension with the SEC of the filing of its Quarterly Report on Form 10-Q), an unaudited statements of income statement, statement and of cash flows for such fiscal quarter quarter, and an unaudited balance sheet and a statement of stockholders’ equity as of the end of such fiscal quarter, all prepared in accordance with GAAP (except that such financial statements may (A) be subject to normal year-end audit adjustments and (B) not contain all notes thereto that may be required in accordance with GAAP);
(c) within twenty (20) days of the end of each month, an unaudited income statement and statement of cash flows and balance sheet for and as of the end of such month, in reasonable detail;
(d) as soon as practicable, but in any event at least thirty (30) days 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;
(eb) with respect to the financial statements called for in subsections (b) and (c) of this Section 2.17.7(a), an instrument executed by the Chief Financial Officer or President chief financial officer and chief executive officer of the Company Buyer certifying that such financials financial statements were prepared in accordance with GAAP consistently applied with prior practice for earlier periods (with the exception of footnotes that may be required by GAAPexcept as otherwise set forth in Section 7.7(a)(ii) and fairly present the financial condition of the Company Buyer and its results of operation for the period specified, subject to year-end audit adjustment; andperiods specified therein.
(fc) such other information relating to the financial condition, business or corporate affairs within two Business Days of the Company as the Major Investor may from time to time requestend of each of Seller’s quarterly accounting periods, provided, however, that the Company shall not be obligated under this subsection (f) or any other subsection of Section 2.1 to Buyer will provide information that it deems in Seller with a good faith to be a trade secret or similar confidential informationestimate of the amount of any Earnout Payment that has been earned during such quarter. At the beginning of each year, Seller shall provide Buyer with the 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. The Company shall, upon request, shall deliver to each Investor (or transferee of an Investor) that holds at least eight hundred forty-six thousand eight hundred thirty-five (846,835) shares of Registrable Securities and each of BioStratum Incorporated (or, in the event of a BioStratum Dissolution, the BioStratum Transferees) and Vanderbilt University (“Vanderbilt”) so long as, respectively, BioStratum Incorporated (or the BioStratum Transferees as a collective) continue to hold at least fifty percent (50%) of the shares of the capital stock of the Company held by BioStratum as of the date hereof and Vanderbilt continues to hold at least fifty percent (50%) of the shares of capital stock held by Vanderbilt as of the date hereof (each as equitably adjusted for stock splits, stock dividends, combinations, recapitalizations, and the like after the Recapitalization (as defined in the Restated Certificate)) (each, a “Major Investor”)::
(a) as soon as practicable, but in any event within ninety (90) 45 days after the end of each fiscal year of the CompanyCompany (i) an unaudited balance sheet as of the end of such year, an (ii) unaudited statements of income statement 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 balance sheet schedule as to the sources and applications of the Company 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 statement 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-end financial reports , with an explanation of any material differences between such amounts and a schedule as to be in reasonable detail, prepared in accordance with generally accepted accounting principles (“GAAP”)the sources and applications of funds for such year, and (iii) a statement of stockholders’ equity as of the end of such year, all such financial statements audited and certified by independent public accountants of nationally recognized standing selected by the Company;
(bc) as soon as practicable, but in any event within thirty (30) 45 days after the end of each of the first three (3) quarters of each fiscal year of the Company, an (i) unaudited statements of income statement, statement of 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 (cexcept that such financial statements may (1) within twenty be subject to normal year-end audit adjustments; and (202) days of the end of each month, an unaudited income statement and statement of cash flows and balance sheet for and as of the end of such month, not contain all notes thereto that may be required in reasonable detailaccordance with GAAP);
(d) as soon as practicable, but in any event at least thirty within 30 days of the end of each month, (30i) 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 (1) be subject to normal year-end audit adjustments and (2) 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 prior to before the end of each fiscal year, a budget and business plan for the next fiscal yearyear (collectively, the “Budget”), approved by the Board of Directors and prepared on a monthly basis, including balance sheets, income statements statements, and statements of cash flows flow for such months and, as soon as promptly after prepared, any other budgets or revised budgets prepared by the Company;
(e) . If, for any period, the Company has any subsidiary whose accounts are consolidated with those of the Company, then in respect to of such period the financial statements called for in subsections (b) delivered pursuant to the foregoing sections shall be the consolidated and (c) of this Section 2.1, an instrument executed by the Chief Financial Officer or President of the Company certifying that such financials were prepared in accordance with GAAP consistently applied with prior practice for earlier periods (with the exception of footnotes that may be required by GAAP) and fairly present the consolidating financial condition statements of the Company and its results of operation for 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 specified, subject to yearstarting with the date 60 days before the Company’s good-end audit adjustment; and
(f) such other information relating to the financial condition, business or corporate affairs faith estimate of the Company 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 Major Investor may from time Company is no longer actively employing its commercially reasonable efforts to time request, provided, however, that the Company shall not be obligated under this subsection (f) or any other subsection of Section 2.1 cause such registration statement to provide information that it deems in good faith to be a trade secret or similar confidential informationbecome effective.
Appears in 1 contract
Sources: Investors’ Rights Agreement (Stoke Therapeutics, Inc.)
Delivery of Financial Statements. The Company shall, upon request, shall deliver to each the Investor (the following documents or transferee of an Investor) that holds at least eight hundred forty-six thousand eight hundred thirty-five (846,835) shares of Registrable Securities and each of BioStratum Incorporated (or, in the event of a BioStratum Dissolution, the BioStratum Transferees) and Vanderbilt University (“Vanderbilt”) so long as, respectively, BioStratum Incorporated (or the BioStratum Transferees as a collective) continue to hold at least fifty percent (50%) of the shares of the capital stock of the Company held by BioStratum as of the date hereof and Vanderbilt continues to hold at least fifty percent (50%) of the shares of capital stock held by Vanderbilt as of the date hereof (each as equitably adjusted for stock splits, stock dividends, combinations, recapitalizations, and the like after the Recapitalization (as defined in the Restated Certificate)) (each, a “Major Investor”):reports:
(a) as soon as practicable, but in any event within ninety (90) days after the end of each fiscal year of the Company, an consolidated income statement statements and statements of cash flows for the Company and the Group Companies for such fiscal year, a consolidated balance sheet of sheets for the Company and statement of stockholders’ equity the Group Companies as of the end of such year, the fiscal year all prepared in English and a statement of cash flows for such year, such year-end financial reports to be in reasonable detail, prepared in accordance with generally accepted accounting principles (“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 Company, and a management report including a comparison of financial results with corresponding annual and quarterly budgets (a “Management Report”);
(b) as soon as practicable, but in any event within thirty forty-five (3045) days after the end of each of the first three (3) quarters of each fiscal year quarter of the Company, an consolidated unaudited income statement, statement statements and statements of cash flows for such fiscal quarter and an quarter, 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 English and in accordance with US GAAP;
(c) within twenty fifteen (2015) days of the end of each month, an unaudited income statement statements and statement statements of cash flows for such month, balance sheets for the Company and balance sheet for and the Group Companies as of the end of such month, and a Management Report, all prepared in reasonable detailEnglish and in accordance with US GAAP;
(d) as soon as practicableat least fifteen (15) days prior to the end of each fiscal quarter, but in any event 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, a an annual budget and business plan for the next succeeding 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;
(ef) with respect within five (5) working days after providing such information 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 any other member of the Company certifying that Company, copies of all other documents or other information sent to such financials were prepared in accordance with GAAP consistently applied with prior practice for earlier periods (with the exception of footnotes that may be required by GAAP) and fairly present the financial condition member of the Company and its results of operation for the period specified, subject to year-end audit adjustmentCompany; and
(fg) 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 information relating documents are not available 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 (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 informationpublic.
Appears in 1 contract
Sources: Investors' Rights Agreement (Acorn International, Inc.)
Delivery of Financial Statements. The Company shall, upon request, shall deliver to each Investor (or transferee of an Investor) that holds at least eight hundred forty-six thousand eight hundred thirty-five (846,835) shares of Registrable Securities and each of BioStratum Incorporated (or, in the event of a BioStratum Dissolution, the BioStratum Transferees) and Vanderbilt University (“Vanderbilt”) so long as, respectively, BioStratum Incorporated (or the BioStratum Transferees as a collective) continue to hold at least fifty percent (50%) of the shares of the capital stock of the Company held by BioStratum as of the date hereof and Vanderbilt continues to hold at least fifty percent (50%) of the shares of capital stock held by Vanderbilt as of the date hereof (each as equitably adjusted for stock splits, stock dividends, combinations, recapitalizations, and the like after the Recapitalization (as defined in the Restated Certificate)) (each, a “Major Investor”)::
(a) as soon as practicable, but in any event within ninety (90) days after the end of each fiscal year of the CompanyCompany (i) a balance sheet as of the end of such year, an (ii) statements of income statement 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 balance sheet schedule as to the sources and applications of the Company funds for such year, and (iii) a statement of stockholders’ equity as of the end of such year, and a statement of cash flows for all such year, such year-end financial reports to be in reasonable detail, prepared in accordance with generally accepted accounting principles (“GAAP”), and statements audited and certified by independent public accountants of nationally recognized standing selected by the Company;
(b) as soon as practicable, but in any event within forty-five (45) days after the end of each quarter of each fiscal year of the Company, unaudited statements of income and cash flows for such fiscal quarter, and an unaudited balance sheet and a statement of stockholders’ equity as of the end of such fiscal quarter, all prepared in accordance with GAAP (except that such financial statements may (i) be subject to normal year-end audit adjustments; and (ii) not contain all notes thereto that may be required in accordance with GAAP);
(c) as soon as practicable, but in any event within forty-five (45) days after the end of each quarter of each fiscal year of the Company, a statement showing the number of shares of each class and series of capital stock and securities convertible into or exercisable for shares of capital stock outstanding at the end of the period, the Common Stock issuable upon conversion or exercise of any outstanding securities convertible or exercisable for Common Stock and the exchange ratio or exercise price applicable thereto, and the number of shares of issued stock options and stock options not yet issued but reserved for issuance, if any, all in sufficient detail as to permit the Major Investors to calculate their respective percentage equity ownership in the Company, and certified by the chief financial officer or chief executive officer of the Company as being true, complete, and correct;
(d) as soon as practicable, but in any event within thirty (30) days after the end of each of the first three (3) quarters of each fiscal year of the Companymonth, an unaudited income statement, statement and statement of cash flows for such fiscal quarter month, and an unaudited balance sheet as of the end of such fiscal quartermonth, all prepared in accordance with GAAP (except that such financial statements may (i) be subject to normal year-end audit adjustments and (ii) not contain all notes thereto that may be required in accordance with GAAP);
(c) within twenty (20) days of the end of each month, an unaudited income statement and statement of cash flows and balance sheet for and as of the end of such month, in reasonable detail;
(de) as soon as practicable, but in any event at least thirty (30) days prior to 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 statements, and statements of cash flows flow for such months and, as soon as promptly after prepared, any other budgets or revised budgets prepared by the CompanyCompany (such budget and business plan that is approved by the Board of Directors is collectively referred to herein as the “Budget”);
(ef) with respect to the financial statements called for in subsections (bSection 3.1(a), Section 3.1(b) and (c) of this Section 2.13.1(d), an instrument executed by the Chief Financial Officer or President chief executive officer of the Company certifying that such financials financial statements were prepared in accordance with GAAP consistently applied with prior practice for earlier periods (with the exception of footnotes that may be required by GAAPexcept 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 period specified, subject to year-end audit adjustmentperiods specified therein; and
(fg) such other information relating to the financial condition, business business, prospects, or corporate affairs of the Company as the any Major 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 3.1 to provide information (i) that it deems the Company reasonably determines in good faith to be a trade secret or similar confidential informationinformation (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
Delivery of Financial Statements. The Company shall, upon request, shall deliver to each Major Investor, provided that the Board of Directors has not reasonably determined that such Major Investor (or transferee of an Investor) that holds at least eight hundred forty-six thousand eight hundred thirty-five (846,835) shares of Registrable Securities and each of BioStratum Incorporated (or, in the event of is a BioStratum Dissolution, the BioStratum Transferees) and Vanderbilt University (“Vanderbilt”) so long as, respectively, BioStratum Incorporated (or the BioStratum Transferees as a collective) continue to hold at least fifty percent (50%) Competitor of the shares of the capital stock of the Company held by BioStratum as of the date hereof and Vanderbilt continues to hold at least fifty percent (50%) of the shares of capital stock held by Vanderbilt as of the date hereof (each as equitably adjusted for stock splits, stock dividends, combinations, recapitalizations, and the like after the Recapitalization (as defined in the Restated Certificate)) (each, a “Major Investor”):Company:
(a) as soon as practicable, but in any event within ninety one hundred twenty (90120) days after the end of each fiscal year of the CompanyCompany (i) a balance sheet as of the end of such year, an (ii) statements of income statement 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 balance sheet schedule as to the sources and applications of the Company funds for such year, and (iii) a statement of stockholders’ equity as of the end of such year, and a statement of cash flows for all such year, such year-end financial reports statements 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 CompanyCompany and approved by the Board of Directors (including a majority of the Investor Directors);
(b) as soon as practicable, but in any event within thirty forty-five (3045) days after the end of each of the first three (3) quarters of each fiscal year of the Company, an unaudited statements of income statement, statement of and cash flows for such fiscal quarter quarter, and an unaudited balance sheet and a statement of stockholders’ equity as of the end of such fiscal quarter, all prepared in accordance with GAAP (except that such financial statements may (i) be subject to normal year-end audit adjustments; and (ii) not contain all notes thereto that may be required in accordance with GAAP);
(c) as soon as practicable, but in any event within twenty forty-five (2045) days after the end of each fiscal quarter of the Company an up-to-date capitalization table including, a statement showing the number of shares of each class and series of capital stock and securities convertible into or exercisable for shares of capital stock outstanding at the end of the period, the Common Stock issuable upon conversion or exercise of any outstanding securities convertible or exercisable for Common Stock and the exchange ratio or exercise price applicable thereto, and the number of shares of issued stock options and stock options not yet issued but reserved for issuance, if any, all in sufficient detail as to permit the Major Investors to calculate their respective percentage equity ownership in the Company, and certified by the chief financial officer or chief executive officer of the Company as being true, complete, and correct;
(d) as soon as practicable, but in any event within thirty (30) days of the end of each month, an unaudited income statement and statement of cash flows for such month, and an unaudited balance sheet for and statement of stockholders’ equity as of the end of such month, all prepared in reasonable detailaccordance 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);
(de) as soon as practicable, but in any event at least thirty (30) days prior to before the end of each fiscal year, a budget and business plan for the next fiscal yearyear (collectively, the “Budget”), approved by the Board of Directors and prepared on a monthly basis, including balance sheets, income statements statements, and statements of cash flows flow for such months and, as soon as promptly after 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 certifying that such financials were prepared in accordance with GAAP consistently applied with prior practice for earlier periods (with the exception of footnotes that may be required by GAAP) and fairly present the financial condition of the Company and its results of operation for the period specified, subject to year-end audit adjustment; and
(f) such other information relating to the financial condition, business business, prospects, or corporate affairs of the Company as the any Major 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 Subsection 3.1 to provide information (i) that it deems the Company reasonably determines in good faith to be a trade secret or similar confidential informationinformation (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. The Company shall, upon request, shall use its best efforts to deliver to each Investor (or transferee of an Investor) that holds at least eight hundred forty-six thousand eight hundred thirty-five (846,835) shares of Registrable Securities and each of BioStratum Incorporated (or, in the event of a BioStratum Dissolution, the BioStratum Transferees) and Vanderbilt University (“Vanderbilt”) so long as, respectively, BioStratum Incorporated (or the BioStratum Transferees as a collective) continue to hold at least fifty percent (50%) of the shares of the capital stock of the Company held by BioStratum as of the date hereof and Vanderbilt continues to hold at least fifty percent (50%) of the shares of capital stock held by Vanderbilt as of the date hereof (each as equitably adjusted for stock splits, stock dividends, combinations, recapitalizations, and the like after the Recapitalization (as defined in the Restated Certificate)) (each, a “Major Investor”):Sprott:
(ai) as soon as practicable, but in any event within ninety (90) 45 days after the end of each fiscal year of the Company, (A) an unaudited balance sheet as of the end of such year, (B) unaudited statements of income statement and of cash flows for such fiscal year, a balance sheet of the Company and (C) an unaudited statement of stockholders’ equity as of the end of such year, and a statement (D) promptly upon completion of cash flows for such yearthe audit of the financial statements described in (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 year-end audited financial reports to be in reasonable detailstatements, prepared in accordance with generally accepted accounting principles (“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 Companyfinancial statements;
(bii) as soon as practicable, but in any event within thirty thirty-five (3035) days after the end of each of the first three (3) quarters of each fiscal year of the Company, an unaudited statements of income statement, statement and of cash flows for such fiscal quarter quarter, and an unaudited balance sheet as of the end of such fiscal quarter;
(c) within twenty (20) days of the end of each month, an unaudited income statement and statement of cash flows and balance sheet for and as of the end of such month, in reasonable detail;
(d) as soon as practicable, but in any event at least thirty (30) days 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) with respect to the financial statements called for in subsections (b) and (c) of this Section 2.1, an instrument executed by the Chief Financial Officer or President of the Company certifying that such financials were all prepared in accordance with GAAP consistently applied with prior practice for earlier periods (with the exception of footnotes 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 by in accordance with GAAP) and fairly present reviewed by the financial condition auditors of the Company and its results of operation for the period specified, subject to year-end audit adjustmentCompany; and
(fiii) such other information relating to thirty-five (35) days after the financial condition, business or corporate affairs end of each of the Company 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 Sprott to calculate its percentage equity ownership in the Major Investor may from time to time request, provided, however, that the Company shall not be obligated under this subsection (f) or any other subsection of Section 2.1 to provide information that it deems in good faith to be a trade secret or similar confidential informationCompany.
Appears in 1 contract
Sources: Letter Agreement (Independence Contract Drilling, Inc.)
Delivery of Financial Statements. The Company shallshall deliver -------------------------------- to each member of the Board of Directors, upon request, deliver and to each Investor (or transferee of an Investor) that holds holding, and to transferees of, at least eight hundred forty-six thousand eight hundred thirty-five (846,835) 300,000 shares of Registrable Securities and each of BioStratum Incorporated (or, in the event of a BioStratum Dissolution, the BioStratum Transferees) and Vanderbilt University (“Vanderbilt”) so long as, respectively, BioStratum Incorporated (or the BioStratum Transferees as a collective) continue to hold at least fifty percent (50%) of the shares of the capital stock of the Company held by BioStratum as of the date hereof and Vanderbilt continues to hold at least fifty percent (50%) of the shares of capital stock held by Vanderbilt as of the date hereof (each as equitably adjusted for stock splits, stock dividends, combinations, recapitalizations, and the like after the Recapitalization (as defined in the Restated Certificate)) (each, a “"Major ----- Investor”):"): --------
(a) as soon as practicable, 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’ shareholder's equity as of the end of such year, and a statement of cash flows for such year, such year-end financial reports to be in reasonable detail, prepared in accordance with generally accepted accounting principles (“"GAAP”"), and ----and audited and certified by an independent public accountants accounting firm of nationally recognized standing selected by the Company;
(b) as soon as practicable, but in any event within thirty (30) days after the end of each of the first three (3) quarters of each fiscal year of the Company, an unaudited income profit or loss statement, a statement of cash flows for such fiscal quarter and an unaudited balance sheet as of the end of such fiscal quarter;
(c) within twenty (20) days of the end of each month, an unaudited income statement and a statement of cash flows and balance sheet for and as of the end of such month, in reasonable detail;
(d) as soon as practicable, but in any event 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 sheets and sources and applications of funds 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) 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 (with the exception of footnotes that may be required by GAAP) and fairly present the financial condition of the Company and its results of operation for the period specified, subject to year-end audit adjustment, provided that the foregoing shall not restrict the right of the Company to change its accounting principles consistent with GAAP, if the Board 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 business, prospects or corporate affairs of the Company as the Major 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 that 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. The Company shall, upon request, shall deliver to each Major Investor, provided that the Board of Directors has not reasonably determined that such Major Investor is a Competitor:
(or transferee a) as soon as practicable, but in any event within one hundred eighty (180) days after the end of an Investor) that holds at least eight hundred forty-six thousand eight hundred thirty-five (846,835) shares of Registrable Securities and each of BioStratum Incorporated (or, in the event of a BioStratum Dissolution, the BioStratum Transferees) and Vanderbilt University (“Vanderbilt”) so long as, respectively, BioStratum Incorporated (or the BioStratum Transferees as a collective) continue to hold at least fifty percent (50%) of the shares of the capital stock fiscal year of the Company held by BioStratum (i) a balance sheet as of the date hereof end of such year, (ii) statements of income and Vanderbilt continues to hold at least fifty percent of cash flows for such year, and a comparison between (50%x) of the shares of capital stock held by Vanderbilt actual amounts as of and for such fiscal year and (y) the date hereof (each comparable amounts for the prior year and as equitably adjusted for stock splits, stock dividends, combinations, recapitalizations, and included in the like after the Recapitalization Budget (as defined in the Restated CertificateSubsection 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 (eachiii) a statement of stockholders’ equity as of the end of such year, a “Major Investor”):all such financial statements audited and certified by independent public accountants of regionally recognized standing selected by the Company;
(ab) as soon as practicable, but in any event within ninety (90) days after the end of each fiscal year of the CompanyCompany (i) an unaudited balance sheet as of the end of such year, an (ii) unaudited statements of income statement 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 balance sheet schedule as to the sources and applications of the Company funds for such year, and (iii) an unaudited 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 to be in reasonable detail, year all prepared in accordance with generally accepted accounting principles GAAP (“except that such financial statements may (i) be subject to normal year-end audit adjustments; and (ii) not contain all notes thereto that may be required in accordance with GAAP”), and audited and certified by independent public accountants of nationally recognized standing selected by the Company;
(bc) as soon as practicable, but in any event within thirty forty-five (3045) days after the end of each of the first three (3) quarters of each fiscal year of the Company, an unaudited statements of income statement, statement of and cash flows for such fiscal quarter quarter, and an unaudited balance sheet and a statement of stockholders’ equity as of the end of such fiscal quarter;
, all prepared in accordance with GAAP (cexcept that such financial statements may (i) within twenty be subject to normal year-end audit adjustments; and (20ii) days of the end of each month, an unaudited income statement and statement of cash flows and balance sheet for and as of the end of such month, not contain all notes thereto that may be required in reasonable detailaccordance 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 least the end of the period, the Common Stock issuable upon conversion or exercise of any outstanding securities convertible or exercisable for Common Stock and the exchange ratio or exercise price applicable thereto, and the number of shares of issued stock options and stock options not yet issued but reserved for issuance, if any, all in sufficient detail as to permit the Major Investors to calculate their respective percentage equity ownership in the Company, and certified by the chief financial officer or chief executive officer of the Company as being true, complete, and correct;
(e) as soon as practicable, but in any event thirty (30) days prior to before the end of each fiscal year, a budget and business plan for the next fiscal yearyear (collectively, the “Budget”), approved by the Board of Directors (including the Preferred Directors) and prepared on a monthly basis, including balance sheets, income statements statements, and statements of cash flows flow for such months and, as soon as promptly after 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 certifying that such financials were prepared in accordance with GAAP consistently applied with prior practice for earlier periods (with the exception of footnotes that may be required by GAAP) and fairly present the financial condition of the Company and its results of operation for the period specified, subject to year-end audit adjustment; and
(f) such other information relating to the financial condition, business business, prospects, or corporate affairs of the Company as the any Major 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 Subsection 3.1 to provide information (i) that it deems the Company reasonably determines in good faith to be a trade secret or similar confidential informationinformation (unless covered by an enforceable confidentiality agreement, in a form acceptable to the Company); or (ii) the disclosure of which could reasonably be expected to adversely affect the attorney-client privilege between the Company and 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 (Sionna Therapeutics, Inc.)
Delivery of Financial Statements. The So long as such Investor is a Major Investor, the Company shall, upon request, shall deliver to each Investor (or transferee of an Investori) that holds at least eight hundred forty-six thousand eight hundred thirty-five (846,835) shares of Registrable Securities and each of BioStratum Incorporated the Permira Investor, IVP, KPCB, GPI and FP and (orii) FT, ▇▇▇▇▇▇▇▇▇, TCV, TA Associates, WCP, and Cross Creek only with respect to the financial statements in the event of a BioStratum Dissolution, the BioStratum TransfereesSubsections (a) and Vanderbilt University (“Vanderbilt”) so long as, respectively, BioStratum Incorporated (or the BioStratum Transferees as a collective) continue to hold at least fifty percent (50%b) of the shares of the capital stock of the Company held by BioStratum as of the date hereof and Vanderbilt continues to hold at least fifty percent (50%) of the shares of capital stock held by Vanderbilt as of the date hereof (each as equitably adjusted for stock splits, stock dividends, combinations, recapitalizations, and the like after the Recapitalization (as defined in the Restated Certificate)) this Section 3.1 (each, a an “Major InvestorInformation Rights Party”):
(a) as soon as practicable, but in any event within ninety one hundred twenty (90120) days after the end of each fiscal year of the Company, an a balance sheet and income statement for as of the last day of such fiscal year, a balance sheet of the Company and statement of stockholders’ equity as of and cash flows for such year and a comparison between the end of actual figures for such year, 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 statement schedule as to the sources and applications of cash flows funds for such year, such year-end financial reports to be in reasonable detail, prepared in accordance with generally accepted accounting principles 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 Company;
(b) as soon as practicable, but in any event within thirty forty-five (3045) days after the end of each of the first three (3) quarters of each fiscal year of the Company, an unaudited income statement, statement schedule as to the sources and application of cash flows funds for such fiscal quarter and quarter, an unaudited balance sheet and a statement of stockholders’ equity and cash flows as of the end of such fiscal quarter;
(c) within twenty as soon as practicable, but in any event with forty-five (2045) days of after the end of each monthof the first three (3) quarters of each fiscal year of the Company, an unaudited income a statement showing the number of shares of each class and statement series of cash flows capital stock and balance sheet securities convertible into or exercisable for and as shares of capital stock outstanding at the end of such monththe 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 stock options and stock options not yet issued but reserved for issuance, if any, all in reasonable detailsufficient detail as to permit the Investors with Registrable Securities to calculate its percentage equity ownership in the Company and certified by the Chief Financial Officer or Chief Executive Officer of the Company as being true, complete and correct;
(d) as soon as practicable, but in any event at least within thirty (30) days following the end of each month, an unaudited income statement, statement of stockholders’ equity and cash flows, and an unaudited profit or loss statement;
(e) as soon as practicable, but in any event thirty (30) days prior to the end of each fiscal year, a budget and business plan for the next fiscal yearyear (collectively, the “Budget”), prepared on a monthly basis, including balance sheets, income sheets and sources and applications of funds statements and statements of cash flows for such months and, as soon as prepared, any other budgets or revised budgets prepared by the Company;
(ef) with respect to the financial statements called for in subsections Subsections (a), (b) and (c) of this Section 2.13.1, an instrument executed by the Chief Financial Officer and President or President Chief Executive Officer of the Company and certifying that such financials were prepared in accordance with GAAP consistently applied with prior practice for earlier periods (with the exception of footnotes that may be required by GAAP) and fairly present the financial condition of the Company and its results of operation for the period specifiedperiods specified therein, subject to year-end audit adjustment; and;
(fg) such other information relating to the financial condition, business business, prospects or corporate affairs of the Company as the Major Investor an Information Rights Party may from time to time reasonably request, provided, however, that the Company shall not be obligated under this subsection Subsection (fg) or any other subsection of Section 2.1 3.1 to (i) provide information that it which the Company reasonably deems in good faith to be a trade secret or similar confidential informationinformation (unless covered by an enforceable confidentiality agreement, in form acceptable to the Company) or (ii) 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 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 could materially and adversely affect the Company or any of its subsidiaries, if any.
Appears in 1 contract
Delivery of Financial Statements. The Company shall, upon request, shall deliver to each Investor (or transferee Holder the following information, provided that the Board of an Investor) Directors has not reasonably determined that holds at least eight hundred forty-six thousand eight hundred thirty-five (846,835) shares of Registrable Securities and each of BioStratum Incorporated (or, in the event of such Holder is a BioStratum Dissolution, the BioStratum Transferees) and Vanderbilt University (“Vanderbilt”) so long as, respectively, BioStratum Incorporated (or the BioStratum Transferees as a collective) continue to hold at least fifty percent (50%) of the shares of the capital stock competitor of the Company held by BioStratum as (it being understood and agreed that no Holders is a competitor of the date hereof and Vanderbilt continues to hold at least fifty percent (50%) 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 shares of capital stock held by Vanderbilt as of the date hereof (each as equitably adjusted for stock splits, stock dividends, combinations, recapitalizations, and the like after the Recapitalization (as defined in the Restated Certificate)) (each, a “Major Investor”Company):
(a) starting with the period ending December 31, 2022, as soon as practicable, but in any event within ninety one hundred twenty (90180) days after the end of each fiscal calendar year of the Company, an income statement for such fiscal year, (i) a balance sheet as of the Company 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, and a statement of cash flows for all such year, such year-end financial reports to be in reasonable detail, prepared in accordance with generally accepted accounting principles (“GAAP”), and statements audited and certified by independent public accountants of nationally recognized standing selected by the Company;
(b) as soon as practicable, but in any event within thirty forty-five (3045) days after the end of each quarter, unaudited statements of the first three (3) quarters of each fiscal year of the Company, an unaudited income statement, statement of and cash flows for such fiscal quarter 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);
(c) as soon as practicable, but in any event within twenty forty-five (2045) days of after the end of each monthquarter of each fiscal year of the Company, an unaudited income a statement showing the number of shares of each class and statement series of cash flows capital stock and balance sheet securities convertible into or exercisable for and as shares of capital stock outstanding at the end of such monththe 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 reasonable detailsufficient detail as to permit Company’s shareholders 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 at least thirty (30) days prior to before the end of each fiscal year, a budget and business plan for the next fiscal yearyear (collectively, the “Budget”), prepared on a monthly basis, including balance sheets, income statements and statements of cash flows flow for such months and, as soon as promptly after 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 certifying that such financials were prepared in accordance with GAAP consistently applied with prior practice for earlier periods (with the exception of footnotes that may be required by GAAP) and fairly present the financial condition of the Company and its results of operation for the period specified, subject to year-end audit adjustment; and
(fe) such other information relating to the financial condition, business business, prospects, or corporate affairs of the Company as the Major Investor any shareholder holding at least 1,000,000 of Series A Preferred Stock or Common Stock may from time to time reasonably request, ; provided, however, that the Company shall not be obligated under this subsection Subsection (fe) or any other subsection of Section 2.1 to provide information (i) that it deems the Company reasonably determines in good faith to be a trade secret or similar confidential informationinformation (unless covered by an enforceable confidentiality agreement, in a 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) 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 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 the Company’s covenants under this Section 4.1 shall be reinstated at such time as the Company is no longer actively employing its commercially reasonable efforts to cause such registration statement to become effective.
Appears in 1 contract
Delivery of Financial Statements. The Company shall, upon request, deliver to each Investor (or transferee of an Upon written request by Investor) that holds at least eight hundred forty-six thousand eight hundred thirty-five (846,835) shares of Registrable Securities and each of BioStratum Incorporated (or, in the event of a BioStratum Dissolution, the BioStratum Transferees) and Vanderbilt University (“Vanderbilt”) so long as, respectively, BioStratum Incorporated (or Company shall deliver the BioStratum Transferees as a collective) continue following to hold at least fifty percent (50%) of the shares of the capital stock of the Company held by BioStratum as of the date hereof and Vanderbilt continues to hold at least fifty percent (50%) of the shares of capital stock held by Vanderbilt as of the date hereof (each as equitably adjusted for stock splits, stock dividends, combinations, recapitalizations, and the like after the Recapitalization (as defined in the Restated Certificate)) (each, a “Major Investor”)::
(a) as soon as practicable, but in any event within ninety (90) days after the end of each fiscal year of the CompanyCompany (i) a balance sheet as of the end of such year, an (ii) statements of income statement 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 balance sheet schedule as to the sources and applications of the Company funds for such year, and (iii) a statement of stockholders’ equity as of the end of such year, and a statement of cash flows for such year, such year-end financial reports to be in reasonable detail, prepared in accordance with generally accepted accounting principles (“GAAP”), and audited and certified by independent public accountants of nationally recognized standing selected by the Company;; INVESTOR RIGHTS AGREEMENT
(b) as soon as practicable, but in any event within thirty forty-five (3045) days after the end of each of the first three (3) quarters quarter of each fiscal year of the Company, an unaudited statements of income statement, statement of and cash flows for such fiscal quarter quarter, and an unaudited balance sheet and a statement of stockholders’ equity as of the end of such fiscal quarter, all prepared in accordance with 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);
(c) as soon as practicable, but in any event within twenty forty-five (2045) days of after the end of each monthquarter of each fiscal year of the Company, an unaudited income a statement showing the number of shares of each class and statement series of cash flows capital stock and balance sheet securities convertible into or exercisable for and as shares of capital stock outstanding at the end of such monththe 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 stock options and stock options not yet issued but reserved for issuance, if any, all in reasonable detailsufficient detail as to permit Investor to calculate its percentage equity ownership in the Company, and certified by the chief financial officer or chief executive officer of the Company as being true, complete, and correct;
(d) as soon as practicable, but in any event at least thirty (30) days prior to 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 statements, and statements of cash flows flow for such months and, as soon as promptly after prepared, any other budgets or revised budgets prepared by the Company;Company (such budget and business plan that is approved by the Board of Directors is collectively referred to herein as the “Budget”); and
(e) with respect to the financial statements called for in subsections (bSection 3.1(a) and (c) of this Section 2.13.1(b), an instrument executed by the Chief Financial Officer or President chief financial officer and chief executive officer of the Company certifying that such financials financial statements were prepared in accordance with IFRS or GAAP consistently applied with prior practice for earlier periods (with the exception of footnotes that may be required by GAAPexcept as otherwise set forth in Section 3.1(b) or as disclosed otherwise) and fairly present present, in all material respects, the financial condition of the Company and its results of operation financial performance for the period specified, subject to year-end audit adjustmentperiods specified therein; and
(f) such other information relating to the financial condition, business business, prospects, or corporate affairs of the Company as the Major any 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 3.1 to provide information (i) that it deems 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. 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 confidential informationinformation 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 the Company’s covenants under this Section 3.1 shall be reinstated at such time as the Company is no longer actively employing its commercially reasonable efforts to cause such registration statement to become effective.
Appears in 1 contract
Delivery of Financial Statements. The Company shall, upon request, shall deliver to each Investor who holds (i) at least 2,000,000 shares of Series A Preferred Stock (or transferee of an Investorrelated Registrable Securities), (ii) that holds at least eight hundred forty-six thousand eight hundred thirty-five (846,835) 759,777 shares of Series B Preferred Stock (or related Registrable Securities and 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 of BioStratum Incorporated (orcase, subject to appropriate adjustment in the event of a BioStratum Dissolutionany stock dividend, stock split, combination or other similar recapitalization affecting such shares, and including Common Stock issued or issuable upon the BioStratum Transfereesconversion of such Preferred Stock, such applicable number being the “Specified Minimum”) and Vanderbilt University to each Investor who at a prior time held the Specified Minimum and at such time holds any Remaining Shares (“Vanderbilt”) so long as, respectively, BioStratum Incorporated (or the BioStratum Transferees as a collective) continue to hold at least fifty percent (50%such term is defined in section 2.3.2(b) of the shares part B of Article Fourth of the capital stock Certificate of the Company held by BioStratum as of the date hereof and Vanderbilt continues to hold at least fifty percent (50%) of the shares of capital stock held by Vanderbilt as of the date hereof (each as equitably adjusted for stock splits, stock dividends, combinations, recapitalizations, and the like after the Recapitalization (as defined in the Restated Certificate)) (each, a “Major Investor”Incorporation):
(a) as soon as practicable, but in any event within ninety one hundred eighty (90180) days after the end of each fiscal year of the Company, an (i) a balance sheet as of the end of such year and (ii) statements of income statement 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 balance sheet schedule as to the sources and applications of the Company funds for such year, and (iii) a statement of stockholders’ equity as of the end of such year, and a statement of cash flows for such yearonce the Company has selected an auditor, such year-end financial reports to be in reasonable detail, prepared in accordance with generally accepted accounting principles (“GAAP”), and audited and certified by independent public accountants of nationally recognized standing selected by the Company, and until then, unaudited reports;
(b) as soon as practicable, but in any event within thirty forty five (3045) days after the end of each of the first three (3) quarters of each fiscal year of the Company, an a financial report including unaudited statements of income statement, statement and of cash flows for such fiscal quarter 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 twenty forty-five (2045) days of after the end of each monthof the first three (3) quarters of each fiscal year of the Company, an unaudited income a statement showing the number of shares of each class and statement series of cash flows capital stock and balance sheet securities convertible into or exercisable for and as shares of capital stock outstanding at the end of such monththe 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 stock options and stock options not yet issued but reserved for issuance, if any, all in reasonable detailsufficient detail as to permit the Investors to calculate their respective percentage equity ownership in the Company, and certified by the chief financial officer or chief executive officer of the Company as being true, complete and correct;
(d) as soon as practicable, but in any event at least within thirty (30) days prior to of the end of each month, a financial report including an unaudited income statement and statement of cash flows for such 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, (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); and
(e) as soon as practicable, but in any event within forty-five (45) days of the beginning of each fiscal year, a budget and business an operating plan for the next fiscal yearyear (collectively, the “Budget”), prepared on a monthly basis, including balance sheets, income statements and statements of cash flows flow for such months and, as soon as promptly after prepared, any other budgets or revised budgets prepared by the Company;
(e) . If for any period the Company shall have any subsidiary whose accounts are consolidated with those of the Company, then in respect to of such period the financial statements called for in subsections (b) delivered pursuant to the foregoing sections shall be the consolidated and (c) of this Section 2.1, an instrument executed by the Chief Financial Officer or President of the Company certifying that such financials were prepared in accordance with GAAP consistently applied with prior practice for earlier periods (with the exception of footnotes that may be required by GAAP) and fairly present the consolidating financial condition statements of the Company and its results of operation for the period specified, subject to year-end audit adjustment; and
(f) all 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 (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 informationconsolidated subsidiaries.
Appears in 1 contract
Delivery of Financial Statements. The Company shall, upon request, shall deliver to each Investor, for so long as such Investor holds (or transferee of an Investortogether with its affiliates) that holds at least eight hundred forty-six thousand eight hundred thirty-five (846,835) 5% of the Registrable Securities, 39,589 shares of Registrable Securities and each of BioStratum Incorporated (or, in the event of a BioStratum Dissolution, the BioStratum Transferees) and Vanderbilt University (“Vanderbilt”) so long as, respectively, BioStratum Incorporated (Series B-1 Preferred Stock or the BioStratum Transferees as a collective) continue to hold at least fifty percent (50%) of the 2,000,000 shares of the capital stock of the Company held by BioStratum as of the date hereof and Vanderbilt continues to hold at least fifty percent (50%) of the shares of capital stock held by Vanderbilt as of the date hereof Series D Preferred Stock (each as equitably adjusted for stock dividends, splits, stock dividends, combinations, recapitalizations, recapitalizations and the like after the Recapitalization (as defined in the Restated Certificate)with respect to such shares) (each, a “Major Significant Investor”):
(a) as soon as practicable, but in any event within ninety forty-five (9045) days after the end of each fiscal year of the Company, the Company’s annual operating plan, 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, a statement of stockholder’s equity as of the end of such year and a statement of cash flows for such fiscal year, such year-end financial reports to be in reasonable detail, prepared in accordance with generally accepted accounting principles (“GAAP”except that such financial statements may (i) be subject to normal year-end audit adjustments and (ii) not contain all notes thereto that may be required in accordance with generally accepted accounting principles), and audited such financial statements will be accompanied by a report and certified opinion thereon by independent public accountants of nationally recognized standing 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 practicablepracticable 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, but 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 of the first three (3) quarters of each fiscal year of the Companymonth, an unaudited income statement, statement of cash flows for such fiscal quarter and an unaudited consolidated balance sheet of the Company as of the end of such fiscal quarter;
(c) within twenty (20) days monthly period, and unaudited consolidated statements of the end of each month, an unaudited income statement and statement of cash flows and balance sheet for and as of the end of such month, in reasonable detail;
(d) as soon as practicable, but in any event at least thirty (30) days 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) with respect to the financial statements called for in subsections (b) and (c) of this Section 2.1, an instrument executed by the Chief Financial Officer or President of the Company certifying that such financials were prepared in accordance with GAAP consistently applied with prior practice for earlier periods (with the exception of footnotes that may be required by GAAP) and fairly present the financial condition of the Company and its results of operation subsidiaries, if any, for the period specifiedsuch period, subject to year-end audit adjustment; and
(f) 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 (f) or any other subsection of Section 2.1 to provide information that it deems prepared in good faith to be a trade secret or similar confidential informationaccordance with generally accepted accounting principles.
Appears in 1 contract
Delivery of Financial Statements. The Company shall, upon request, shall deliver to each Major Investor (provided, that the Board of Directors has not reasonably determined that such Major Investor is a direct or transferee of an Investor) that holds at least eight hundred forty-six thousand eight hundred thirty-five (846,835) shares of Registrable Securities and each of BioStratum Incorporated (or, in the event of a BioStratum Dissolution, the BioStratum Transferees) and Vanderbilt University (“Vanderbilt”) so long as, respectively, BioStratum Incorporated (or the BioStratum Transferees as a collective) continue to hold at least fifty percent (50%) indirect competitor of the shares 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 capital stock Company, irrespective of the Company held by BioStratum as other portfolio companies of the date hereof and Vanderbilt continues to hold at least fifty percent (50%) of the shares of capital stock held by Vanderbilt as of the date hereof (each as equitably adjusted for stock splits, stock dividends, combinations, recapitalizations, and the like after the Recapitalization (as defined in the Restated Certificate)) (each, a “Major Investor”such private equity fund):
(a) as soon as practicable, 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, (i) a balance sheet as of the Company 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, and a statement of cash flows for all such year, such year-end financial reports to be in reasonable detail, prepared in accordance with generally accepted accounting principles (“GAAP”), and statements audited and certified by independent public accountants of nationally or regionally recognized standing selected by the Company;
(b) as soon as practicable, but in any event within thirty forty-five (3045) days after the end of each of the first three (3) quarters of each fiscal year of the Company, an unaudited statements of income statement, statement and of 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);
(c) as soon as practicable, but in any event within twenty forty-five (2045) days of the end of each month, an unaudited income statement for such month, and statement of cash flows and an unaudited balance sheet for and as of the end of such month, all prepared in reasonable detailaccordance 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 at least thirty (30) days prior to before the end of each fiscal year, a budget and business plan for the next fiscal yearyear (the “Budget”), 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 approved by the CompanyBoard of Directors;
(e) with respect to the financial statements called for in subsections (bSection 3.1(a), Section 3.1(b) and (c) of this Section 2.13.1(c), an instrument executed by the Chief Financial Officer or President chief financial officer and chief executive officer of the Company certifying that such financials financial statements were prepared in accordance with GAAP consistently applied with prior practice for earlier periods (with the exception of footnotes that may be required by GAAPexcept 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 period specified, subject to year-end audit adjustmentperiods specified therein; and
(f) such other information relating to the financial condition, business business, prospects, or corporate affairs of the Company as the any Major 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 3.1 to provide information (i) that it deems the Company reasonably determines in good faith to be a trade secret or similar confidential informationinformation (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. The Company shall, upon request, shall deliver to each Investor (or transferee of an Investor) that holds at least eight hundred forty-six thousand eight hundred thirty-five (846,835) shares of Registrable Securities and each of BioStratum Incorporated (or, in the event of a BioStratum Dissolution, the BioStratum Transferees) and Vanderbilt University (“Vanderbilt”) so long as, respectively, BioStratum Incorporated (or the BioStratum Transferees as a collective) continue to hold at least fifty percent (50%) of the shares of the capital stock of the Company held by BioStratum as of the date hereof and Vanderbilt continues to hold at least fifty percent (50%) of the shares of capital stock held by Vanderbilt as of the date hereof (each as equitably adjusted for stock splits, stock dividends, combinations, recapitalizations, and the like after the Recapitalization (as defined in the Restated Certificate)) (each, a “Major Investor”)::
(a) as soon as practicable, but in any event within ninety one hundred eighty (90180) days after the end of each fiscal year of the Company, an income statement for such fiscal year, Company (i) a balance sheet of the Company and statement of stockholders’ equity as of the end of such year, year and a statement (ii) statements of income and cash flows for such year, all such year-end financial reports to be in reasonable detail, statements audited and prepared in accordance with generally accepted accounting principles (“GAAP”), and audited and certified by independent public accountants of nationally recognized standing selected by the Company;
(b) as soon as practicable, but in any event within thirty sixty (3060) days after the end of each of the first three (3) quarters of each fiscal year of the Company, an unaudited statements of income statement, statement of cash flows for such fiscal quarter and an unaudited balance sheet as of the end of such fiscal quarter, all prepared substantially in accordance with GAAP (except that such financial statements may (i) be subject to normal year-end audit adjustments 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 twenty forty-five (2045) days of the end of each month, an unaudited income statement for such month, and statement of cash flows and an unaudited balance sheet for and as of the end of such month, all prepared substantially in reasonable detailaccordance 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 at least thirty (30) days prior to 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 flows for such months and, as soon as prepared, any other budgets or revised budgets prepared by forecasting the Company’s revenues, expenses and cash positions;
(e) with respect to as soon as practicable, but in any event within forty-five (45) days after the end of each of the financial statements called for in subsections (b) and (c) quarters of this Section 2.1, an instrument executed by the Chief Financial Officer or President each fiscal year of the Company certifying that such financials were prepared Company, the Company’s current capitalization table in accordance with GAAP consistently applied with prior practice for earlier periods (with sufficient detail as to allow each Major Investor to calculate its percentage ownership in the exception of footnotes that may be required by GAAP) and fairly present the financial condition of the Company and its results of operation for the period specified, subject to year-end audit adjustmentCompany; and
(f) such other information relating to the financial condition, business or corporate affairs of the Company as the any Major 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 Subsection 3.1 to provide information (i) that it deems the Company reasonably determines in good faith to be a trade secret or similar confidential informationinformation (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. The Company shall, upon request, shall deliver to each Investor, provided that the Board of Directors has not reasonably determined that such Investor (or transferee of an Investor) that holds at least eight hundred forty-six thousand eight hundred thirty-five (846,835) shares of Registrable Securities and each of BioStratum Incorporated (or, in the event of is a BioStratum Dissolution, the BioStratum Transferees) and Vanderbilt University (“Vanderbilt”) so long as, respectively, BioStratum Incorporated (or the BioStratum Transferees as a collective) continue to hold at least fifty percent (50%) of the shares of the capital stock competitor of the Company held by BioStratum as (provided that neither RTW, Perceptive nor their respective Affiliates shall be deemed a competitor of the date hereof and Vanderbilt continues to hold at least fifty percent (50%) of the shares of capital stock held by Vanderbilt as of the date hereof (each as equitably adjusted for stock splits, stock dividends, combinations, recapitalizations, and the like after the Recapitalization (as defined in the Restated Certificate)) (each, a “Major Investor”Company hereunder):
(a) as soon as practicable, but in any event within ninety one hundred twenty (90120) days after the end of each fiscal year of the CompanyCompany (i) a balance sheet as of the end of such year, an (ii) statements of income statement 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 balance sheet schedule as to the sources and applications of the Company funds for such year, and (iii) a statement of stockholders’ equity as of the end of such year, and a statement of cash flows for all such year, such year-end financial reports to be in reasonable detail, prepared in accordance with generally accepted accounting principles (“GAAP”), and statements audited and certified by independent public accountants of nationally regionally recognized standing selected by the Company;
(b) as soon as practicable, but in any event within thirty forty-five (3045) days after the end of each of the first three (3) quarters quarter of each fiscal year of the Company, an unaudited statements of income statement, statement of and cash flows for such fiscal quarter quarter, and an unaudited balance sheet and a statement of stockholders’ equity as of the end of such fiscal quarter, all prepared in accordance with GAAP (except that such financial statements may (i) be subject to normal year-end audit adjustments; and (ii) not contain all notes thereto that may be required in accordance with GAAP); and a comparison of such quarterly statements against the applicable quarterly portion of the Budget (as defined below) for each such quarter each year;
(c) as soon as practicable, but in any event within twenty forty-five (2045) days of after the end of each monthquarter of each fiscal year of the Company, an unaudited income a statement showing the number of shares of each class and statement series of cash flows capital stock and balance sheet securities convertible into or exercisable for and as shares of capital stock outstanding at the end of such monththe 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 reasonable detailsufficient detail as to permit the Investors to calculate their respective percentage equity ownership in the Company, and certified by the chief financial officer or chief executive officer of the Company as being true, complete, and correct;
(d) as soon as practicable, but in any event at least within thirty (30) days prior to of the end of each month, copies of management financial accounts in the form prepared by Company management in the ordinary course of business;
(e) as soon as practicable, but in any event thirty (30) days before the end of each fiscal year, a budget and business plan for the next fiscal yearyear (collectively, the “Budget”), approved by the Board of Directors in accordance with Section 6.4, and prepared on a monthly basis, including balance sheets, income statements statements, and statements of cash flows flow for such months and, as soon as promptly after prepared, any other budgets or revised budgets prepared by the Company;
(ef) with respect to the financial statements called for in subsections Subsection 3.1(a), (b) and (c) of this Section 2.1d), an instrument executed by the Chief Financial Officer or President chief financial officer and chief executive officer of the Company certifying that such financials financial statements were prepared in accordance with GAAP consistently applied with prior practice for earlier periods (with the exception of footnotes that may be required by GAAPexcept 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 period specified, subject to year-end audit adjustmentperiods specified therein; and
(fg) such other information relating to the financial condition, business business, prospects, or corporate affairs of the Company as the Major any 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 Subsection 3.1 to provide information (i) that it deems the Company reasonably determines in good faith to be a trade secret or similar confidential informationinformation (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: Investor’s Rights Agreement (Landos Biopharma, Inc.)
Delivery of Financial Statements. The Company shall, upon request, shall deliver to each Investor (or transferee of an Investor) that Holder who holds at least eight hundred forty-six thousand eight hundred thirty-five (846,835) 1,000,000 shares of Registrable Securities and each of BioStratum Incorporated (or, in the event of a BioStratum Dissolution, the BioStratum Transferees) and Vanderbilt University (“Vanderbilt”) so long as, respectively, BioStratum Incorporated (or the BioStratum Transferees as a collective) continue subject to hold at least fifty percent (50%) of the shares of the capital stock of the Company held by BioStratum as of the date hereof and Vanderbilt continues to hold at least fifty percent (50%) of the shares of capital stock held by Vanderbilt as of the date hereof (each as equitably adjusted adjustment for stock splits, stock dividends, combinationsreclassifications or the like), recapitalizations▇▇▇▇▇▇▇▇▇ Partners LLC — Series A and Aperture Venture Partners III, and L.P. (collectively, the like after the Recapitalization (as defined in the Restated Certificate)) (each, a “Major InvestorHolders”):
(a) as soon as practicable, but in any event within ninety (90) 150 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’ stockholder’s equity as of the end of such year, and a statement of cash flows for such year, such year-end financial reports to be in reasonable detail, prepared in accordance with generally accepted accounting principles (“GAAP”), and audited and certified by 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 CompanyInvestors (each, an “Investor Director”);
(b) as soon as practicable, but in any event within thirty (30) 45 days after the end of each of the first three (3) quarters of each fiscal year of the Companyquarter, an unaudited income profit or loss statement, a statement of cash flows as compared to the budget and the comparable period for such fiscal quarter and the prior year, an unaudited balance sheet as of the end of such fiscal quarterquarter and a written summary of operations, each of which has been prepared in accordance with GAAP, subject to normal year-end audit adjustments;
(c) within twenty (20) days of the end of each month, an unaudited income statement and statement of cash flows and balance sheet for and as of the end of such month, in reasonable detail;
(d) as soon as practicable, but in any event at least thirty (30) 30 days prior to the end of each fiscal year, a comprehensive operating budget and business plan for the next fiscal year forecasting the Company’s revenues, expenses and cash position on a month-to-month basis for the upcoming fiscal year, prepared on a monthly basis, including balance sheets, income statements and statements of cash flows 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 certifying that such financials were prepared in accordance with GAAP consistently applied with prior practice for earlier periods (with the exception of footnotes that may be required by GAAP) and fairly present the financial condition of the Company and its results of operation for the period specified, subject to year-end audit adjustment; and
(fd) such other information relating to promptly upon request by a Major Holder following the financial conditionend of each fiscal quarter, business or corporate affairs of an updated capitalization table, certified by the Company as the Major Investor may from time to time request, provided, however, that the Company shall not be obligated under this subsection (f) or any other subsection of Section 2.1 to provide information that it deems in good faith to be a trade secret or similar confidential informationCompany’s Chief Financial Officer.
Appears in 1 contract
Sources: Investors’ Rights Agreement (Aclaris Therapeutics, Inc.)
Delivery of Financial Statements. The Company shall, upon request, shall deliver to each Major Investor, provided that the Board of Directors has not reasonably determined that such Major Investor (or transferee of an Investor) that holds at least eight hundred forty-six thousand eight hundred thirty-five (846,835) shares of Registrable Securities and each of BioStratum Incorporated (or, in the event of is a BioStratum Dissolution, the BioStratum Transferees) and Vanderbilt University (“Vanderbilt”) so long as, respectively, BioStratum Incorporated (or the BioStratum Transferees as a collective) continue to hold at least fifty percent (50%) competitor of the shares of the capital stock of the Company held by BioStratum as of the date hereof and Vanderbilt continues to hold at least fifty percent (50%) of the shares of capital stock held by Vanderbilt as of the date hereof (each as equitably adjusted for stock splits, stock dividends, combinations, recapitalizations, and the like after the Recapitalization (as defined in the Restated Certificate)) (each, a “Major Investor”):Company:
(a) as soon as practicable, but in any event within ninety one hundred eighty (90180) days after the end of each fiscal year of the CompanyCompany or such later date as may be approved by the Majority Preferred Directors, an (i) a balance sheet as of the end of such year, (ii) statements of income statement 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 balance sheet schedule as to the sources and applications of the Company funds for such year, and (iii) a statement of stockholders’ equity as of the end of such year, and a statement of cash flows for all such year, such year-end financial reports to be in reasonable detail, prepared in accordance with generally accepted accounting principles (“GAAP”), and statements audited and certified by independent public accountants of nationally recognized standing selected by the Company;
(b) as soon as practicable, but in any event within thirty forty-five (3045) days after the end of each of the first three (3) quarters of each fiscal year of the Company, an unaudited statements of income statement, statement and of cash flows for the portion of the fiscal year ending on the expiry of such fiscal quarter 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 and (ii) not contain all notes thereto that may be required in accordance with GAAP);
(c) within twenty (20) days as soon as practicable, upon request by a Major Investor, a statement showing the number of shares of each class and series and securities convertible into or exercisable for shares outstanding at the end of each monththe most recently completed fiscal quarter, an unaudited income statement the Common Stock issuable upon conversion or exercise of any outstanding securities convertible or exercisable for Common Stock and statement the exchange ratio or exercise price applicable thereto, and the number of cash flows shares of issued stock options and balance sheet stock options not yet issued but reserved for and issuance, if any, all in sufficient detail as of to permit the end of such month, Major Investors to calculate their respective percentage equity ownership in reasonable detailthe Company;
(d) as soon as practicable, but in any event at least within thirty (30) days prior after the end of each month or such later date as may be approved by the Majority Preferred Directors, unaudited statements of income and of cash flows for such month, and an unaudited balance sheet as of the end of such month, all prepared in accordance with 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, year prepared on a monthly basis, including balance sheets, income statements statements, and statements of cash flows flow for such months and(collectively, the “Budget”), (ii) as soon as preparedpracticable, 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;
(e) with respect to the financial statements called for in subsections (b) Company and (c) of this Section 2.1, an instrument executed approved by the Chief Financial Officer or President of Board, promptly following such approval by the Company certifying that such financials were prepared in accordance with GAAP consistently applied with prior practice for earlier periods (with the exception of footnotes that may be required by GAAP) and fairly present the financial condition of the Company and its results of operation for the period specified, subject to year-end audit adjustmentBoard; and
(f) such other information relating to the financial condition, business business, prospects, or corporate affairs of the Company as the any Major 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 3.1 to provide information (i) that it deems the Company reasonably determines in good faith to be a trade secret or similar confidential informationinformation (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. (a) The Company shall, upon request, shall deliver to each Investor (or transferee of an Major Investor) that holds at least eight hundred forty-six thousand eight hundred thirty-five (846,835) shares of Registrable Securities and each of BioStratum Incorporated (or, in the event of a BioStratum Dissolutionformat specified by Golden Seeds LLC, the BioStratum Transferees) and Vanderbilt University (“Vanderbilt”) so long as, respectively, BioStratum Incorporated (or the BioStratum Transferees as a collective) continue to hold at least fifty percent (50%) of the shares of the capital stock of the Company held by BioStratum as of the date hereof and Vanderbilt continues to hold at least fifty percent (50%) of the shares of capital stock held by Vanderbilt as of the date hereof (each as equitably adjusted for stock splits, stock dividends, combinations, recapitalizations, and the like after the Recapitalization (as defined in the Restated Certificate)) (each, a “Major Investor”):any successor entity thereto:
(ai) as soon as practicable, but in any event within ninety (90) 90 days after the end of each fiscal year of the Company, an (A) a balance sheet as of the end of such year, (B) statements of income statement 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 Budget (as defined in Section 3.1(v)) for such year, with an explanation of any material differences between such amounts and a balance sheet schedule as to the sources and applications of the Company funds for such year, and (C) a statement of stockholders’ equity as of the end of such year, and a statement of cash flows for all such year, such year-end financial reports to be in reasonable detail, prepared in accordance with generally accepted accounting principles (“GAAP”), and statements audited and certified by independent public accountants of nationally recognized standing selected by the Company, 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;
(bii) as soon as practicable, but in any event within thirty (30) 60 days after the end of each of the first three (3) quarters of each fiscal year of the Company, an (A) unaudited statements of income statement, statement 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 (A) be subject to normal year-end audit adjustments and (B) 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;
(ciii) within twenty (20) days such other information relating to the financial condition, business, prospects, or corporate affairs of the end Company as determined by the Board of each month, an unaudited income statement and statement of cash flows and balance sheet for and as of the end of such month, in reasonable detailDirectors;
(div) as soon as practicable, but in any event at least thirty within 45 days of the end of each month, (30A) 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 (A) be subject to normal year-end audit adjustments and (B) not contain all notes thereto that may be required in accordance with GAAP);
(v) as soon as practicable, but in any event 30 days prior to before the end of each fiscal year, a budget and business plan for the next fiscal yearyear (collectively, prepared the “Budget”), which shall include, without limitation, forecasts of the Company’s revenues, expenses and cash position on a monthly month-to-month basis, including balance sheets, income statements statements, and statements of cash flows flow for such months and, as soon as promptly after prepared, any other budgets or revised budgets prepared by the Company;; and
(evi) 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 to of such period the financial statements called for in subsections (b) delivered pursuant to the foregoing sections shall be the consolidated and (c) of this Section 2.1, an instrument executed by the Chief Financial Officer or President of the Company certifying that such financials were prepared in accordance with GAAP consistently applied with prior practice for earlier periods (with the exception of footnotes that may be required by GAAP) and fairly present the consolidating financial condition statements of the Company and its results of operation for 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 specified, subject to yearstarting with the date 60 days before the Company’s good-end audit adjustment; and
(f) such other information relating to the financial condition, business or corporate affairs faith estimate of the Company 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 Major Investor may from time Company is no longer actively employing its commercially reasonable efforts to time request, provided, however, that the Company shall not be obligated under this subsection (f) or any other subsection of Section 2.1 cause such registration statement to provide information that it deems in good faith to be a trade secret or similar confidential informationbecome effective.
Appears in 1 contract
Sources: Investors’ Rights Agreement (Cognition Therapeutics Inc)
Delivery of Financial Statements. The Company shall, upon request, shall deliver to each Investor (or transferee of an Investor) that holds at least eight hundred forty-six thousand eight hundred thirty-five (846,835) shares of Registrable Securities and each of BioStratum Incorporated (or, in the event of a BioStratum Dissolution, the BioStratum Transferees) and Vanderbilt University (“Vanderbilt”) so long as, respectively, BioStratum Incorporated (or the BioStratum Transferees as a collective) continue to hold at least fifty percent (50%) of the shares of the capital stock of the Company held by BioStratum as of the date hereof and Vanderbilt continues to hold at least fifty percent (50%) of the shares of capital stock held by Vanderbilt as of the date hereof (each as equitably adjusted for stock splits, stock dividends, combinations, recapitalizations, and the like after the Recapitalization (as defined in the Restated Certificate)) (each, a “Major Investor”)::
(a) as soon as practicable, but in any event within ninety one hundred twenty (90120) days after the end of each fiscal year of the Company, an income statement for such fiscal year, (i) a balance sheet as of the Company 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, and a statement of cash flows for all such year, such year-end financial reports to be in reasonable detail, prepared in accordance with generally accepted accounting principles (“GAAP”), and statements audited and certified by independent public accountants of nationally at least locally recognized standing selected by the Company;
(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 thirty forty-five (3045) days after the end of each of the first three (3) quarters of each fiscal year of the Company, an unaudited statements of income statement, statement and of cash flows for such fiscal quarter quarter, and an unaudited balance sheet and a statement of stockholders’ equity as of the end of such fiscal quarter, all prepared in accordance with GAAP (except that such financial statements may (i) be subject to normal year-end audit adjustments and (ii) not contain all notes thereto that may be required in accordance with GAAP), 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);
(ce) as soon as practicable, but in any event within twenty thirty (2030) days of the end of each month, an unaudited income statement and statement of cash flows for such month, and an unaudited balance sheet for and statement of stockholders’ equity as of the end of such month, all prepared in reasonable detailaccordance 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 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;
(ef) with respect to the financial statements called for in subsections (bSection 3.1(a), Section 3.1(d) and (c) of this Section 2.13.1(e), an instrument executed by the Chief Financial Officer or President chief financial officer and chief executive officer of the Company certifying that such financials financial statements were prepared in accordance with GAAP consistently applied with prior practice for earlier periods (with the exception of footnotes that may be required by GAAPexcept 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 period specified, subject to year-end audit adjustment; andperiods specified therein;
(fg) such other information relating to the financial condition, business business, prospects, or corporate affairs of the Company as the any Major 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 3.1 to provide information (i) that it deems the Company reasonably determines in good faith to be a trade secret or similar confidential information (unless covered by an enforceable confidentiality agreement, in form acceptable to the Company) or (ii) the disclosure of which would adversely affect the attorney-client privilege between the Company and its counsel.
(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. The Company shall, upon request, shall deliver to each Investor Holder, so long as such Holder holds or is deemed to hold (or transferee of an Investori) that holds at least eight two hundred forty-six fifty thousand eight hundred thirty-five (846,835250,000) shares of Registrable Securities and each of BioStratum Incorporated (or, in the event of a BioStratum Dissolution, the BioStratum Transferees) and Vanderbilt University (“Vanderbilt”) so long as, respectively, BioStratum Incorporated (or the BioStratum Transferees as a collective) continue subject to hold at least fifty percent (50%) of the shares of the capital stock of the Company held by BioStratum as of the date hereof and Vanderbilt continues to hold at least fifty percent (50%) of the shares of capital stock held by Vanderbilt as of the date hereof (each as equitably adjusted appropriate adjustment for stock splits, stock dividends, combinationscombinations and other recapitalizations) with respect to subsections (a), (b) and (d) and (ii) at least one million (1,000,000) shares of Registrable Securities (subject to appropriate adjustment for stock splits, dividends, combinations and other recapitalizations, and the like after the Recapitalization ) with respect to subsection (as defined in the Restated Certificate)c) (each, a “Major Qualifying Investor”):
(a) as soon as practicable, 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 stockholdersshareholders’ equity as of the end of such year, and a statement of cash flows for such year, such year-end financial reports to be in reasonable detail, prepared in accordance with generally accepted accounting principles (“GAAP”), and audited and certified by independent public accountants of nationally recognized standing selected by the Company; 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;
(b) as soon as practicable, but in any event within thirty (30) days after the end of each of the first three (3) quarters of each fiscal year of the Company, an unaudited income profit or loss statement, a statement of cash flows for such fiscal quarter and an unaudited balance sheet as of the end of such fiscal quarter; 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;
(c) as soon as practicable, but in any event within twenty thirty (2030) days of after the end of each month, an unaudited income statement and statement of cash flows and balance sheet for and as an unaudited statement of the end of such month, in reasonable detail;cash position; and
(d) as soon as practicable, but in any event at least no later than 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 an annual operating budget for such months and, the next fiscal year as soon as prepared, any other budgets or revised budgets prepared approved by the Company;
(e) with respect to the financial statements called for in subsections (b) and (c) Board of this Section 2.1, an instrument executed by the Chief Financial Officer or President of the Company certifying that such financials were prepared in accordance with GAAP consistently applied with prior practice for earlier periods (with the exception of footnotes that may be required by GAAP) and fairly present the financial condition of the Company and its results of operation for the period specified, subject to year-end audit adjustment; and
(f) 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 (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 informationDirectors.
Appears in 1 contract
Delivery of Financial Statements. The Company shall, upon request, shall deliver to each Investor (or transferee of an Investor) that holds at least eight hundred forty-six thousand eight hundred thirty-five (846,835) shares of Registrable Securities and each of BioStratum Incorporated (or, in the event of a BioStratum Dissolution, the BioStratum Transferees) and Vanderbilt University (“Vanderbilt”) so long as, respectively, BioStratum Incorporated (or the BioStratum Transferees as a collective) continue to hold at least fifty percent (50%) of the shares of the capital stock of the Company held by BioStratum as of the date hereof and Vanderbilt continues to hold at least fifty percent (50%) of the shares of capital stock held by Vanderbilt as of the date hereof (each as equitably adjusted for stock splits, stock dividends, combinations, recapitalizations, and the like after the Recapitalization (as defined in the Restated Certificate)) (each, a “Major Investor”):, provided that the Board of Directors has not reasonably determined that such Major Investor is a Competitor:
(a) as soon as practicable, but in any event within ninety one hundred and eighty (90180) days after the end of each fiscal year of the CompanyCompany (i) a balance sheet as of the end of such year, an (ii) statements of income statement 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 balance sheet schedule as to the sources and applications of the Company funds for such year, and (iii) a statement of stockholders’ equity as of the end of such year, and a statement of cash flows for all such year, such year-end financial reports to be in reasonable detail, prepared in accordance with generally accepted accounting principles (“GAAP”), and statements audited and certified by independent public accountants of nationally recognized standing selected approved by the CompanyBoard 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);
(b) as soon as practicable, but in any event within thirty forty-five (3045) days after the end of each of the first three (3) quarters quarter of each fiscal year of the Company, an unaudited statements of income statement, statement of 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);
(c) as soon as practicable, but in any event within twenty forty-five (2045) days of after the end of each monthquarter of each fiscal year of the Company, an unaudited income a statement showing the number of shares of each class and statement series of cash flows capital stock and balance sheet securities convertible into or exercisable for and as shares of capital stock outstanding at the end of such monththe 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 reasonable detailsufficient 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 at least thirty (30) days prior to after the end of each fiscal year, a budget and business plan for the next fiscal yearyear (collectively, the “Budget”), approved by the Board of Directors (including the approval of the majority of the Preferred Directors) prepared on a monthly basis, including balance sheets, income statements statements, and statements of cash flows flow for such months and, as soon as promptly after 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 certifying that such financials were prepared in accordance with GAAP consistently applied with prior practice for earlier periods (with the exception of footnotes that may be required by GAAP) and fairly present the financial condition of the Company and its results of operation for the period specified, subject to year-end audit adjustment; and
(f) such other information relating to the financial condition, business business, prospects, or corporate affairs of the Company as the any Major 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 Subsection 3.1 to provide information (i) that it deems the Company reasonably determines in good faith to be a trade secret or similar confidential informationinformation (unless covered by an enforceable confidentiality agreement, in a form acceptable to the Company); or (ii) the disclosure of which would adversely affect the attorney-client privilege between the Company and its counsel. If, for any period, the Company has any subsidiary whose accounts are consolidated with those of the Company, then in respect of such period the financial statements delivered pursuant to the foregoing sections shall be the consolidated and consolidating financial statements of the Company and all such consolidated subsidiaries. Notwithstanding anything else in this Subsection 3.1 to the contrary, the Company may cease providing the information set forth in this Subsection 3.1 during the period starting with the date sixty (60) days before the Company’s good-faith estimate of the date of filing of a registration statement if it reasonably concludes it must do so to comply with the SEC rules applicable to such registration statement and related offering; provided that the Company’s covenants under this Subsection 3.1 shall be reinstated at such time as the Company is no longer actively employing its commercially reasonable efforts to cause such registration statement to become effective.
Appears in 1 contract
Sources: Investors’ Rights Agreement (MBX Biosciences, Inc.)
Delivery of Financial Statements. The Company shall, upon request, shall deliver to each Major Investor; provided, that the Board of Directors has not reasonably determined that such Major Investor is a Competitor (provided that Major Investors that are venture capital funds or transferee of an Investor) that holds at least eight hundred forty-six thousand eight hundred thirty-five (846,835) shares of Registrable Securities and each of BioStratum Incorporated (or, in the event of a BioStratum Dissolution, the BioStratum Transferees) and Vanderbilt University (“Vanderbilt”) so long as, respectively, BioStratum Incorporated (or the BioStratum Transferees professional investment funds shall not be deemed Competitors solely as a collective) continue to hold at least fifty percent (50%) result of the shares of the capital stock of the Company held by BioStratum as of the date hereof and Vanderbilt continues to hold at least fifty percent (50%) of the shares of capital stock held by Vanderbilt as of the date hereof (each as equitably adjusted for stock splits, stock dividends, combinations, recapitalizations, and the like after the Recapitalization (as defined their investments in the Restated Certificate)) (each, a “Major Investor”other companies):
(a) as soon as practicable, but in any event within ninety one hundred twenty (90120) days after the end of each fiscal year of the CompanyCompany (i) a balance sheet as of the end of such year, an (ii) statements of income statement 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 balance sheet schedule as to the sources and applications of the Company funds for such year, and (iii) a statement of stockholders’ equity as of the end of such year, and a statement of cash flows for all such year, such year-end financial reports to be in reasonable detail, statements prepared in accordance with generally accepted accounting principles (“GAAP”), GAAP and audited and certified by independent public accountants of nationally recognized standing selected by the Company;
(b) as soon as practicable, but in any event within thirty forty-five (3045) days after the end of each of the first three (3) quarters of each fiscal year of the Company, an unaudited statements of income statement, statement of 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);
(c) beginning on January 1, 2020, and within twenty thirty (2030) 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 for and as of the end of such month, all prepared in reasonable detailaccordance 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 practicablebeginning after January 1, but in any event at least thirty (30) days prior to 2020, by the end of the first fiscal quarter of each fiscal year, a budget and business plan for that fiscal year (collectively, the next fiscal year“Budget”), 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 approved by the Company;
(e) with respect to the financial statements called for in subsections (b) and (c) Board of this Section 2.1, an instrument executed by the Chief Financial Officer or President of the Company certifying that such financials were prepared in accordance with GAAP consistently applied with prior practice for earlier periods (with the exception of footnotes that may be required by GAAP) and fairly present the financial condition of the Company and its results of operation for the period specified, subject to year-end audit adjustmentDirectors; and
(fe) such other information relating to the financial condition, business business, prospects, or corporate affairs of the Company as the any Major 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 Subsection 3.1 to provide information (i) that it deems the Company reasonably determines in good faith to be a trade secret or similar confidential informationinformation (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. The Company shall, upon request, Group Companies shall deliver to each Major Investor (the following documents or transferee of an Investor) that holds at least eight hundred forty-six thousand eight hundred thirty-five (846,835) shares of Registrable Securities reports and each of BioStratum Incorporated (ordeliver to Chuangrui the documents or reports set out in Sections 8.1(i), in the event of a BioStratum Dissolution8.1(ii), the BioStratum Transferees8.1(iv)(A) and Vanderbilt University (“Vanderbilt”8.1(v) so long as, respectively, BioStratum Incorporated (or the BioStratum Transferees as a collective) continue to hold at least fifty percent (50%) of the shares of the capital stock of the Company held by BioStratum as of the date hereof and Vanderbilt continues to hold at least fifty percent (50%) of the shares of capital stock held by Vanderbilt as of the date hereof (each as equitably adjusted for stock splits, stock dividends, combinations, recapitalizations, and the like after the Recapitalization (as defined in the Restated Certificate)) (each, a “Major Investor”):below:
(ai) as soon as practicable, but in any event within ninety (90) days after the end of each fiscal year of the Company, an a consolidated income statement and statement of cash flows for the Company for such fiscal year, year and a consolidated balance sheet of for the Company and statement of stockholders’ equity as of the end of such the fiscal year, and a statement of cash flows for such year, such year-end financial reports to be in reasonable detail, prepared in accordance with generally accepted accounting principles (“GAAP”), and audited and certified by 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 Companydirectors of the Board of Directors, all prepared in English and in accordance with the Accounting Standards consistently applied throughout the period;
(bii) as soon as practicable, but in any event within thirty (30) days after the end of each of the first three (3) quarters of each fiscal year of the Company, an unaudited income the management accounts (balance sheet, profit and loss statement, and statement of cash flows for such fiscal quarter and an unaudited balance sheet as flows) of the end of such fiscal quarterGroup and each Group Company;
(ciii) within twenty thirty (2030) days of the end of each month, an (A) a consolidated unaudited income statement and statement of cash flows for such month and a consolidated balance sheet for and the Company as of the end of such month, and a comparison of the financial results of such month with the corresponding monthly budget, in reasonable detailaccordance with the Accounting Standards consistently applied throughout the period (except for customary year-end adjustments and except for the absence of notes), and certified by the chief financial officer of the Company; and (B) all the customer transaction data of each Group Company extracted from the Group Companies’ CRM system Hong Mai, including but not limited to treatment date, treatment price, transaction amount, price discount, segment, treatment type and detailed description;
(div) as soon as practicablewithin thirty (30) days of the end of each quarter, but in any event (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 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 end beginning of each fiscal year, a budget and business plan for setting forth: the next fiscal year, prepared on a monthly basis, including projected balance sheets, income statements and statements of cash flows for each month during such months andfiscal year of each Group Company; projected detailed budgets for each such month; any dividend or distribution projected to be declared or paid; the projected incurrence, as soon as preparedassumption 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 other budgets reports publicly filed by the Company with any relevant securities exchange, regulatory authority or revised budgets prepared governmental agency, no later than five (5) days after such documents or information are filed by the Company;
(evii) with respect to capitalization table of the financial statements called for in subsections (b) and (c) of this Section 2.1Group Companies, an instrument executed certified by the Chief Financial Officer or President chief executive officer of the Company certifying that such financials were prepared in accordance with GAAP consistently applied with prior practice for earlier periods as being true, correct and complete, no later than five (with 5) days after the exception end of footnotes that may be required by GAAP) and fairly present the financial condition of the Company and its results of operation for the period specified, subject to year-end audit adjustmenteach fiscal quarter; and
(fviii) such as soon as practicable, any other information relating to the financial condition, business or corporate affairs reasonably requested by any such holder 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 (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 informationPreferred Shares.
Appears in 1 contract
Sources: Shareholder Agreement (Aesthetic Medical International Holdings Group LTD)
Delivery of Financial Statements. The Company shall, upon request, shall deliver to each Major Investor, provided that the Board has not reasonably determined that such Major Investor (or transferee of an Investor) that holds at least eight hundred forty-six thousand eight hundred thirty-five (846,835) shares of Registrable Securities and each of BioStratum Incorporated is (or, in the event case of a BioStratum DissolutionMajor Investor that is an individual, the BioStratum Transferees) and Vanderbilt University (“Vanderbilt”) so long as, respectively, BioStratum Incorporated (is employed by or the BioStratum Transferees serves as a collectiveconsultant to) continue to hold at least fifty percent (50%) a competitor of the shares of the capital stock of the Company held by BioStratum as of the date hereof and Vanderbilt continues to hold at least fifty percent (50%) of the shares of capital stock held by Vanderbilt as of the date hereof (each as equitably adjusted for stock splits, stock dividends, combinations, recapitalizations, and the like after the Recapitalization (as defined in the Restated Certificate)) (each, a “Major Investor”):Company:
(a) as soon as practicable, but in any event within ninety one hundred twenty (90120) days after the end of each fiscal year of the CompanyCompany beginning with the fiscal year ending December 31, an 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 statement 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 balance sheet schedule as to the sources and applications of the Company funds for such year, and (iii) a statement of stockholders’ equity as of the end of such year, and a statement of cash flows for all such year, such year-end financial reports to be in reasonable detail, prepared in accordance with generally accepted accounting principles (“GAAP”), and statements audited and certified by independent public accountants of nationally recognized standing selected by the CompanyCompany and approved by the Board, including the Preferred Director (provided that such audit requirement may be waived by the Board, including the Preferred Director);
(b) as soon as practicable, but in any event within thirty forty-five (3045) days after the end of each of the first three (3) quarters of each fiscal year of the CompanyCompany (or such later time as the Board, an including the Preferred Director, may determine), unaudited statements of income statement, statement and of 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); and
(c) within twenty (20) days of the end of each month, an unaudited income statement and statement of cash flows and balance sheet for and as of the end of such month, in reasonable detail;
(d) as soon as practicable, but in any event at least within thirty (30) days prior to after the end beginning of each fiscal yearyear (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 business plan for the next fiscal year, prepared on a monthly quarterly basis, including balance sheets, income statements statements, and statements of cash flows flow for such months and, as soon as promptly after prepared, any other budgets or revised budgets prepared by the Company;
(e) . If, for any period, the Company has any subsidiary whose accounts are consolidated with those of the Company, then in respect to of such period the financial statements called for in subsections (b) delivered pursuant to the foregoing sections shall be the consolidated and (c) of this Section 2.1, an instrument executed by the Chief Financial Officer or President of the Company certifying that such financials were prepared in accordance with GAAP consistently applied with prior practice for earlier periods (with the exception of footnotes that may be required by GAAP) and fairly present the consolidating financial condition statements of the Company and its results of operation for 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 specified, subject to yearstarting with the date sixty (60) days before the Company’s good-end audit adjustment; and
(f) such other information relating to the financial condition, business or corporate affairs faith estimate of the Company 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 Major Investor may from time Company is no longer actively employing its commercially reasonable efforts to time request, provided, however, that the Company shall not be obligated under this subsection (f) or any other subsection of Section 2.1 cause such registration statement to provide information that it deems in good faith to be a trade secret or similar confidential informationbecome effective.
Appears in 1 contract
Sources: Investors’ Rights Agreement (Omega Therapeutics, Inc.)
Delivery of Financial Statements. The Company shall, upon request, shall deliver to each Major Investor, provided that the Board of Directors has not reasonably determined that such Major Investor (or transferee of an Investor) that holds at least eight hundred forty-six thousand eight hundred thirty-five (846,835) shares of Registrable Securities and each of BioStratum Incorporated (or, in the event of is a BioStratum Dissolution, the BioStratum Transferees) and Vanderbilt University (“Vanderbilt”) so long as, respectively, BioStratum Incorporated (or the BioStratum Transferees as a collective) continue to hold at least fifty percent (50%) Competitor of the shares of the capital stock of the Company held by BioStratum as of the date hereof and Vanderbilt continues to hold at least fifty percent (50%) of the shares of capital stock held by Vanderbilt as of the date hereof (each as equitably adjusted for stock splits, stock dividends, combinations, recapitalizations, and the like after the Recapitalization (as defined in the Restated Certificate)) (each, a “Major Investor”):Company:
(a) as soon as practicable, but in any event within ninety one hundred twenty (90120) days after the end of each fiscal year of the CompanyCompany (i) a balance sheet as of the end of such year, an (ii) statements of income statement 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 balance sheet schedule as to the sources and applications of the Company funds for such year, and (iii) a statement of stockholders’ equity as of the end of such year, and a statement of cash flows for all such year, such year-end financial reports to be in reasonable detail, prepared in accordance with generally accepted accounting principles (“GAAP”), and statements audited and certified by independent public accountants of nationally recognized standing selected by the CompanyCompany (to include the affirmative approval of at least two of the Preferred Directors);
(b) as soon as practicable, but in any event within thirty forty-five (3045) days after the end of each of the first three (3) quarters of each fiscal year of the Company, an unaudited statements of income statement, statement of and cash flows for such fiscal quarter quarter, and an unaudited balance sheet and a statement of stockholders’ equity as of the end of such fiscal quarter, all prepared in accordance with GAAP (except that such financial statements may (i) be subject to normal year-end audit adjustments; and (ii) not contain all notes thereto that may be required in accordance with GAAP);
(c) as soon as practicable, but in any event within twenty forty-five (2045) days after the end of each quarter of each fiscal year of the Company, a statement showing the number of shares of each class and series of capital stock and securities convertible into or exercisable for shares of capital stock outstanding at the end of the period, the Common Stock issuable upon conversion or exercise of any outstanding securities convertible or exercisable for Common Stock and the exchange ratio or exercise price applicable thereto, and the number of shares of issued stock options and stock options not yet issued but reserved for issuance, if any, all in sufficient detail as to permit the Major Investors to calculate their respective percentage equity ownership in the Company, and certified by the chief financial officer or chief executive officer of the Company as being true, complete, and correct;
(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 for and statement of stockholders’ equity as of the end of such month, each compared against the Budget, all prepared in reasonable detailaccordance 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);
(de) as soon as practicable, but in any event at least thirty sixty (3060) days prior to before the end of each fiscal year, a budget and business plan for the next fiscal yearyear (collectively, the “Budget”), approved by the Board of Directors and prepared on a monthly basis, including balance sheets, income statements statements, and statements of cash flows flow for such months and, as soon as promptly after 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 certifying that such financials were prepared in accordance with GAAP consistently applied with prior practice for earlier periods (with the exception of footnotes that may be required by GAAP) and fairly present the financial condition of the Company and its results of operation for the period specified, subject to year-end audit adjustment; and
(f) such other information relating to the financial condition, business business, prospects, or corporate affairs of the Company as the any Major 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 Subsection 3.1 to provide information (i) that it deems the Company reasonably determines in good faith to be a trade secret secret; or similar confidential information(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. The Company shall, upon request, shall deliver to each Investor (or transferee of an Investor) that holds at least eight hundred forty-six thousand eight hundred thirty-five (846,835) shares of Registrable Securities and each of BioStratum Incorporated (or, in the event of a BioStratum Dissolution, the BioStratum Transferees) and Vanderbilt University (“Vanderbilt”) so long as, respectively, BioStratum Incorporated (or the BioStratum Transferees as a collective) continue to hold at least fifty percent (50%) of the shares of the capital stock of the Company held by BioStratum as of the date hereof and Vanderbilt continues to hold at least fifty percent (50%) of the shares of capital stock held by Vanderbilt as of the date hereof (each as equitably adjusted for stock splits, stock dividends, combinations, recapitalizations, and the like after the Recapitalization (as defined in the Restated Certificate)) (each, a “Major Investor”)::
(a) as soon as practicable, but in any event within ninety one hundred twenty (90120) days after the end of each fiscal year of the CompanyCompany (i) an audited balance sheet as of the end of such year, (ii) an audited statement of income statement for such fiscal year, a balance sheet of the Company and (iii) an audited statement of stockholders’ equity as of the end of such yearyear commencing with the fiscal year ending March 31, 2021, together with the auditor’s report thereon and a statement of cash flows for such year, such year-end financial reports to be in reasonable detail, notes thereto prepared in accordance with generally accepted accounting principles (“US GAAP”), and audited and certified by independent public accountants of nationally recognized standing selected by the Company;
(b) as soon as practicable, but in any event within thirty sixty (3060) 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-end audit adjustments);
(c) 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 Company, an unaudited statements of income statement, statement of 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 US GAAP (cexcept that such financial statements may (i) within twenty be subject to income tax and normal year-end audit adjustments; and (20ii) days of the end of each month, an unaudited income statement and statement of cash flows and balance sheet for and as of the end of such month, not contain all notes thereto that may be required in reasonable detailaccordance with US GAAP);
(d) as soon as practicable, but in any event at least thirty within sixty (3060) days prior after the end of each of the first three (3) fiscal 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, and the equivalent information for each Subsidiary of the Company, all in sufficient detail as to permit the Major Investors to calculate their respective direct and indirect percentage equity ownership in the Company and in each such Subsidiary, and certified by the chief financial officer or chief executive officer of the Company or a Subsidiary of the Company, as being true, complete, and correct;
(e) as soon as practicable, but in any event sixty (60) days before the end of each fiscal yearyear (commencing with the fiscal year ended March 31, 2021), a budget and business plan for the next fiscal year, prepared on a monthly basisincluding an income statement, including balance sheets, income statements and statements of cash flows for such months and, as soon as prepared, any other budgets or revised budgets material revisions to the budget prepared by the Company;
(e) with respect Company and provided pursuant to the financial statements called for in subsections (b) and (c) of this Section 2.1, an instrument executed by the Chief Financial Officer or President of the Company certifying that such financials were prepared in accordance with GAAP consistently applied with prior practice for earlier periods (with the exception of footnotes that may be required by GAAP) and fairly present the financial condition of the Company and its results of operation for the period specified, subject to year-end audit adjustment4.1(d); and
(f) such other information relating to the financial condition, business business, prospects, or corporate affairs of the Company or any of its Subsidiaries as the any Major Investor may from time to time request, reasonably request to facilitate their accounting purposes; provided, however, that the Company shall not be obligated under this subsection (f) or any other subsection of Section 2.1 4.1 to provide information (i) that it deems the Company reasonably determines in good faith and upon written advice from counsel to be a trade secret or similar confidential informationinformation (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 date of the 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, or any other applicable agreements of the Company, the Company shall not be required to and will not provide to the Major Investors, and the Major Investors shall not request from the Company, any “Material Nonpublic Technical Information”, as such term is defined in Section 721 of the Defense Production Act of 1950, as amended by the Foreign Investment Risk Review Modernization Act of 2018 and any United States federal rules or regulations promulgated thereunder, as may be amended, modified, supplemented or replaced from time to time. The Company shall, and cause each of its Subsidiaries to, reasonably cooperate in any asset valuation exercise undertaken by any Major Investor.
Appears in 1 contract
Sources: Investors’ Rights Agreement (Roivant Sciences Ltd.)
Delivery of Financial Statements. The Company shall, upon request, shall deliver to each Major Investor30[, provided that the Board of Directors has not reasonably determined that such Major Investor (or transferee of an Investor) that holds at least eight hundred forty-six thousand eight hundred thirty-five (846,835) shares of Registrable Securities and each of BioStratum Incorporated (or, in the event of is a BioStratum Dissolution, the BioStratum Transferees) and Vanderbilt University (“Vanderbilt”) so long as, respectively, BioStratum Incorporated (or the BioStratum Transferees as a collective) continue to hold at least fifty percent (50%) competitor of the shares of the capital stock of the Company held by BioStratum as of the date hereof and Vanderbilt continues to hold at least fifty percent (50%) of the shares of capital stock held by Vanderbilt as of the date hereof (each as equitably adjusted for stock splits, stock dividends, combinations, recapitalizations, and the like after the Recapitalization (as defined in the Restated Certificate)) (each, a “Major Investor”):Company31]:
(a) as soon as practicable, but in any event within [ninety (90) 90)-one hundred twenty (120)] days after the end of each fiscal year of the Company, an (i) a balance sheet as of the end of such year, (ii) statements of income statement 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 balance sheet schedule as to the sources and applications of the Company funds for such year], and (iii) a statement of stockholders’ equity as of the end of such year[, and a statement of cash flows for all such year, such year-end financial reports to be in reasonable detail, prepared in accordance with generally accepted accounting principles (“GAAP”), and statements audited and certified by independent public accountants of nationally recognized standing selected by the Company;Company];32
(b) as soon as practicable, but in any event within thirty forty‑five (3045) days after the end of each of the first three (3) quarters of each fiscal year of the Company, an unaudited statements of income statement, statement and of cash flows for such fiscal quarter quarter, and an unaudited balance sheet [and a statement of stockholders’ equity] as of the end of such fiscal quarter, all prepared in accordance with GAAP (except that such financial statements may (i) be subject to normal year-end audit adjustments and (ii) not contain all notes thereto that may be required in accordance with GAAP);
(c) [as soon as practicable, but in any event within twenty forty-five (2045) days of after the end of each monthof the first three (3) quarters of each fiscal year of the Company, an unaudited income a statement showing the number of shares of each class and statement series of cash flows capital stock and balance sheet securities convertible into or exercisable for and as shares of capital stock outstanding at the end of such monththe 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 reasonable detailsufficient 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 at least within thirty (30) days prior of the end of each month, an unaudited income statement [and statement of cash flows] for such month, and an unaudited balance sheet [and statement of stockholders’ equity] as of the end of such month, all prepared in accordance with GAAP (except that such financial statements may (i) be subject to normal year-end audit adjustments and (ii) not contain all notes thereto that may be required in accordance with GAAP);]
(e) as soon as practicable, but in any event thirty (30) days before the end of each fiscal year, a budget and business plan for the next fiscal yearyear (collectively, the “Budget”), [approved by the Board of Directors and] prepared on a monthly basis, including balance sheets, income statements statements, and statements of cash flows flow for such months and, as soon as promptly after prepared, any other budgets or revised budgets prepared by the Company;
(ef) with respect to the financial statements called for in subsections (bSection 3.1(a), Section 3.1(b) [and (c) of this Section 2.13.1(d)], an instrument executed by the Chief Financial Officer or President chief financial officer and chief executive officer of the Company certifying that such financials financial statements were prepared in accordance with GAAP consistently applied with prior practice for earlier periods (with the exception of footnotes that may be required by GAAPexcept 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 period specified, subject to year-end audit adjustmentperiods specified therein; and
] [(fg) such other information information33 relating to the financial condition, business business, prospects, or corporate affairs of the Company as the any Major 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 3.1 to provide information (i) that it deems the Company reasonably determines in good faith to be a trade secret or similar confidential informationinformation (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. The Company shall, upon request, shall deliver to each Major Investor, provided that the Board of Directors has not reasonably determined that such Major Investor (or transferee of an Investor) that holds at least eight hundred forty-six thousand eight hundred thirty-five (846,835) shares of Registrable Securities and each of BioStratum Incorporated (or, in the event of is a BioStratum Dissolution, the BioStratum Transferees) and Vanderbilt University (“Vanderbilt”) so long as, respectively, BioStratum Incorporated (or the BioStratum Transferees as a collective) continue to hold at least fifty percent (50%) Competitor of the shares of the capital stock of the Company held by BioStratum as of the date hereof and Vanderbilt continues to hold at least fifty percent (50%) of the shares of capital stock held by Vanderbilt as of the date hereof (each as equitably adjusted for stock splits, stock dividends, combinations, recapitalizations, and the like after the Recapitalization (as defined in the Restated Certificate)) (each, a “Major Investor”):Company:
(a) as soon as practicable, but in any event within ninety (90) 120 days after the end of each fiscal year of the Company, an income statement for such fiscal year, (i) a balance sheet as of the Company 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, and a statement of cash flows for such year, such year-end financial reports to be in reasonable detail, prepared in accordance with generally accepted accounting principles (“GAAP”), and audited and certified by independent public accountants of nationally recognized standing selected by the Company;
(b) as soon as practicable, but in any event within thirty (30) 45 days after the end of each of the first three (3) quarters of each fiscal year of the Company, an unaudited statements of income statement, statement of and cash flows for such fiscal quarter quarter, and an unaudited balance sheet and a statement of stockholders’ equity as of the end of such fiscal quarter, all prepared in accordance with GAAP (except that such financial statements may (i) be subject to normal year-end audit adjustments; and (ii) not contain all notes thereto that may be required in accordance with GAAP);
(c) as soon as practicable, but in any event within twenty (20) 45 days of after the end of each monthof the first three quarters of each fiscal year of the Company, an unaudited income (i) a statement showing the number of shares of each class and statement series of cash flows capital stock and balance sheet securities convertible into or exercisable for and as shares of capital stock outstanding at the end of such monththe 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 reasonable detail;sufficient detail as to permit the Major Investors to calculate their respective percentage equity ownership in the Company, and (ii) the Company’s most recent 409(a) valuation report; and
(d) as soon as practicable, but in any event at least thirty (30) 30 days prior to before the end of each fiscal year, a budget and business plan for the next fiscal yearyear 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 monthly quarterly basis, including balance sheets, income statements statements, and statements of cash flows flow for such months fiscal quarter and, as soon as promptly after prepared, any other budgets or revised budgets prepared by the Company;
(e) . If, for any period, the Company has any subsidiary whose accounts are consolidated with those of the Company, then in respect to of such period the financial statements called for in subsections (b) delivered pursuant to the foregoing sections shall be the consolidated and (c) of this Section 2.1, an instrument executed by the Chief Financial Officer or President of the Company certifying that such financials were prepared in accordance with GAAP consistently applied with prior practice for earlier periods (with the exception of footnotes that may be required by GAAP) and fairly present the consolidating financial condition statements of the Company and its results of operation for 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 specified, subject to yearstarting with the date 60 days before the Company’s good-end audit adjustment; and
(f) such other information relating to the financial condition, business or corporate affairs faith estimate of the Company 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 Major Investor may from time Company is no longer actively employing its commercially reasonable efforts to time request, provided, however, that the Company shall not be obligated under this subsection (f) or any other subsection of Section 2.1 cause such registration statement to provide information that it deems in good faith to be a trade secret or similar confidential informationbecome effective.
Appears in 1 contract
Delivery of Financial Statements. The Company shall, upon request, shall deliver to each Investor (or transferee of an Investor) that holds at least eight hundred forty-six thousand eight hundred thirty-five (846,835) shares of Registrable Securities and each of BioStratum Incorporated (or, in the event of a BioStratum Dissolution, the BioStratum Transferees) and Vanderbilt University (“Vanderbilt”) so long as, respectively, BioStratum Incorporated (or the BioStratum Transferees as a collective) continue to hold at least fifty percent (50%) of the shares of the capital stock of the Company held by BioStratum as of the date hereof and Vanderbilt continues to hold at least fifty percent (50%) of the shares of capital stock held by Vanderbilt as of the date hereof (each as equitably adjusted for stock splits, stock dividends, combinations, recapitalizations, and the like after the Recapitalization (as defined in the Restated Certificate)) (each, a “Major Investor”)::
(a) as soon as practicable, but in any event within ninety one hundred twenty (90120) days after the end of each fiscal year of the CompanyCompany (i) a balance sheet as of the end of such year, an (ii) statements of income statement 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 balance sheet schedule as to the sources and applications of the Company funds for such year, and (iii) a statement of stockholders’ equity as of the end of such year, and a statement of cash flows for all such year, such year-end financial reports to be in reasonable detail, prepared in accordance with generally accepted accounting principles (“GAAP”), and statements audited and certified by independent public accountants of nationally recognized standing selected by the Company;
(b) as soon as practicable, but in any event within thirty forty-five (3045) days after the end of each of the first three (3) quarters of each fiscal year of the Company, an unaudited statements of income statement, statement of and cash flows for such fiscal quarter quarter, and an unaudited balance sheet and a statement of stockholders’ equity as of the end of such fiscal quarter, all prepared in accordance with GAAP (except that such financial statements may (i) be subject to normal year-end audit adjustments; and (ii) not contain all notes thereto that may be required in accordance with GAAP);
(c) as soon as practicable, but in any event within twenty forty-five (2045) days of after the end of each monthquarter of each fiscal year of the Company, an unaudited income statement a capitalization table showing the number of shares of each class and statement series of cash flows capital stock and balance sheet securities convertible into or exercisable for and as shares of capital stock outstanding at the end of such monththe period and the number of shares of issued stock options and stock options not yet issued but reserved for issuance, in reasonable detailif any;
(d) as soon as practicable, but in any event at least thirty (30) days prior to before the end beginning of each fiscal year, a capital and operating budget and business plan for the next fiscal yearyear (collectively, the “Budget”) and prepared on a monthly quarterly basis, including balance sheets, income statements statements, and statements of cash flows flow for such months quarters and, as soon as promptly after 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 certifying that such financials were prepared in accordance with GAAP consistently applied with prior practice for earlier periods (with the exception of footnotes that may be required by GAAP) and fairly present the financial condition of the Company and its results of operation for the period specified, subject to year-end audit adjustment; and
(fe) such other information relating to the financial condition, business business, prospects, or corporate affairs of the Company as the Major any 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 Subsection 3.1 to provide information (i) that it deems the Company reasonably determines in good faith to be a trade secret or similar confidential informationinformation (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 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 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. The Company shall, upon request, shall deliver to each Investor (or transferee of an Investor) that holds at least eight hundred forty-six thousand eight hundred thirty-five (846,835) shares of Registrable Securities and each of BioStratum Incorporated (or, in the event of a BioStratum Dissolution, the BioStratum Transferees) and Vanderbilt University (“Vanderbilt”) so long as, respectively, BioStratum Incorporated (or the BioStratum Transferees as a collective) continue to hold at least fifty percent (50%) of the shares of the capital stock of the Company held by BioStratum as of the date hereof and Vanderbilt continues to hold at least fifty percent (50%) of the shares of capital stock held by Vanderbilt as of the date hereof (each as equitably adjusted for stock splits, stock dividends, combinations, recapitalizations, and the like after the Recapitalization (as defined in the Restated Certificate)) (each, a “Major Investor”)::
(a) as soon as practicable, but in any event within ninety one-hundred twenty (90120) days after the end of each fiscal year of the CompanyCompany (i) a balance sheet as of the end of such year, an (ii) statements of income statement 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 balance sheet schedule as to the sources and applications of the Company funds for such year, and (iii) a statement of stockholders’ equity as of the end of such year, and a statement of cash flows for all such year, such year-end financial reports to be in reasonable detail, prepared in accordance with generally accepted accounting principles (“GAAP”), and statements audited and certified by independent public accountants of nationally at least regionally recognized standing selected by the CompanyCompany 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;
(b) as soon as practicable, but in any event within thirty forty-five (3045) days after the end of each of the first three (3) quarters of each fiscal year of the Company, an unaudited statements of income statement, statement of and cash flows for such fiscal quarter quarter, and an unaudited balance sheet and a statement of stockholders’ equity as of the end of such fiscal quarter, all prepared in accordance with GAAP (except that such financial statements may (i) be subject to normal year-end audit adjustments; and (ii) not contain all notes thereto that may be required in accordance with GAAP);
(c) as soon as practicable, but in any event within twenty forty-five (2045) days of after the end of each monthquarter of each fiscal year of the Company, an unaudited income a statement showing the number of shares of each class and statement series of cash flows capital stock and balance sheet securities convertible into or exercisable for and as shares of capital stock outstanding at the end of such monththe 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 reasonable detailsufficient detail as to permit the Major Investors to calculate their respective percentage equity ownership in the Company;
(d) as soon as practicable, but in any event at least thirty (30) days prior to before the end of each fiscal year, a budget and business plan for the next fiscal yearyear (collectively, the “Budget”), approved by the Board of Directors and prepared on a monthly quarterly basis, including balance sheets, income statements statements, and statements of cash flows flow for such months and, as soon as promptly after prepared, any other budgets or revised budgets prepared by the Company;; and
(e) with respect to the financial statements called for in subsections (b) and (c) of this Section 2.1, an instrument executed by the Chief Financial Officer or President of the Company certifying that such financials were prepared in accordance with GAAP consistently applied with prior practice for earlier periods (with the exception of footnotes that may be required by GAAP) and fairly present the financial condition of the Company and its results of operation for the period specified, subject to year-end audit adjustment; and[reserved]
(f) such other information relating to the financial condition, business business, prospects, or corporate affairs of the Company as the any Major 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 Subsection 3.1 to provide information (i) that it deems the Company reasonably determines in good faith to be a trade secret or similar confidential informationinformation (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 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 (Werewolf Therapeutics, Inc.)
Delivery of Financial Statements. The Company shall, upon request, shall deliver to each Investor, provided that the Board of Directors, as determined by a Special Board Approval, has not reasonably determined that such Investor (or transferee of an Investor) that holds at least eight hundred forty-six thousand eight hundred thirty-five (846,835) shares of Registrable Securities and each of BioStratum Incorporated (or, in the event of is a BioStratum Dissolution, the BioStratum Transferees) and Vanderbilt University (“Vanderbilt”) so long as, respectively, BioStratum Incorporated (or the BioStratum Transferees as a collective) continue to hold at least fifty percent (50%) Competitor of the shares of the capital stock of the Company held by BioStratum as of the date hereof and Vanderbilt continues to hold at least fifty percent (50%) of the shares of capital stock held by Vanderbilt as of the date hereof (each as equitably adjusted for stock splits, stock dividends, combinations, recapitalizations, and the like after the Recapitalization (as defined in the Restated Certificate)) (each, a “Major Investor”):Company:
(a) as soon as practicable, but in any event within ninety one hundred twenty (90120) days after the end of each fiscal year of the Company, an income statement for such fiscal year, Company (i) a balance sheet as of the Company 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, and a statement of cash flows for all such year, such year-end financial reports to be in reasonable detail, prepared in accordance with generally accepted accounting principles (“GAAP”), and statements audited and certified by independent public accountants of nationally regionally recognized standing selected by the Company;
(b) as soon as practicable, but in any event within thirty forty-five (3045) days after the end of each of the first three (3) quarters of each fiscal year of the Company, an unaudited statements of income statement, statement of 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);
(c) as soon as practicable, but in any event within twenty thirty (2030) days of the end of each month, an unaudited income statement and statement of cash flows for such month, and an unaudited balance sheet for and as of the end of such month, all prepared in reasonable detailaccordance 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 least 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 prior to before the end of each fiscal year, a budget and business plan for the next fiscal yearyear (collectively, the “Budget”), prepared on a monthly basis, including balance sheets, income statements statements, and statements of cash flows flow for such months and, as soon as promptly after prepared, any other budgets or revised budgets prepared by the Company;
(e) . If, for any period, the Company has any subsidiary whose accounts are consolidated with those of the Company, then in respect to of such period the financial statements called for in subsections (b) delivered pursuant to the foregoing sections shall be the consolidated and (c) of this Section 2.1, an instrument executed by the Chief Financial Officer or President of the Company certifying that such financials were prepared in accordance with GAAP consistently applied with prior practice for earlier periods (with the exception of footnotes that may be required by GAAP) and fairly present the consolidating financial condition statements of the Company and its results of operation for 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 specified, subject to yearstarting with the date thirty (30) days before the Company’s good-end audit adjustment; and
(f) such other information relating to the financial condition, business or corporate affairs faith estimate of the Company 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 Major Investor may from time Company is no longer actively employing its commercially reasonable efforts to time request, provided, however, that the Company shall not be obligated under this subsection (f) or any other subsection of Section 2.1 cause such registration statement to provide information that it deems in good faith to be a trade secret or similar confidential informationbecome effective.
Appears in 1 contract
Delivery of Financial Statements. The Company shall, upon request, shall deliver to each Investor (or transferee of an Investor) that holds at least eight hundred forty-six thousand eight hundred thirty-five (846,835) shares of Registrable Securities and each of BioStratum Incorporated (or, in the event of a BioStratum Dissolution, the BioStratum Transferees) and Vanderbilt University (“Vanderbilt”) so long as, respectively, BioStratum Incorporated (or the BioStratum Transferees as a collective) continue to hold at least fifty percent (50%) of the shares of the capital stock of the Company held by BioStratum as of the date hereof and Vanderbilt continues to hold at least fifty percent (50%) of the shares of capital stock held by Vanderbilt as of the date hereof (each as equitably adjusted for stock splits, stock dividends, combinations, recapitalizations, and the like after the Recapitalization (as defined in the Restated Certificate)) (each, a “Major Investor”)::
(ai) as soon as practicable, but in any event within ninety forty-five (9045) days after the end of each fiscal year of the Company, an (1) a balance sheet as of the end of such year, (2) statements of income statement 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 balance sheet schedule as to the sources and applications of the Company funds for such year, and (3) a statement of stockholders’ equity as of the end of such year, and a statement of cash flows for all such year, such year-end financial reports to be in reasonable detail, prepared in accordance with generally accepted accounting principles (“GAAP”), and statements audited and certified by independent public accountants the auditors of nationally recognized standing selected by the Company;
(bii) as soon as practicable, but in any event within thirty twenty-five (3025) days after the end of each of the first three (3) quarters of each fiscal year of the Company, an unaudited statements of income statement, statement and of cash flows for such fiscal quarter and quarter, an unaudited balance sheet and a statement of stockholders’ equity as of the end of such fiscal quarter, all prepared in accordance with GAAP (except that such financial statements may (i) be subject to normal year-end audit adjustments and (ii) not contain all notes thereto that may be required in accordance with GAAP);
(c) within twenty (20) days of the end of each month, an unaudited income statement and statement of cash flows and balance sheet for and as of the end of such month, in reasonable detail;
(diii) as soon as practicable, but in any event at least thirty (30) days prior to before the end of each fiscal year, a budget and business plan Budget/Business Plan for the next fiscal year, adopted with Unanimous Board Approval and prepared on a monthly basis, including balance sheets, income statements statements, and statements of cash flows flow for such months months; and, as soon as prepared, any other budgets or revised budgets prepared by the Company;
(eiv) with respect to the financial statements called for in subsections (bSection 9(e)(i) and (c) of this Section 2.19(e)(ii), an instrument executed by the Chief Financial Officer or President chief financial officer and chief executive officer of the Company certifying that such financials financial statements were prepared in accordance with GAAP consistently applied with prior practice for earlier periods (with the exception of footnotes that may be required by GAAPexcept 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 period specified, subject to year-end audit adjustment; andperiods specified therein.
(fv) such other information relating to the financial condition, business business, prospects, or corporate affairs of the Company as the Major any 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 3.1 to provide information (i) that it deems the Company reasonably determines in good faith to be a trade secret or similar confidential informationinformation (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. The Company shall, upon request, shall deliver to each Major Investor, provided that the Board of Directors has not reasonably determined that such Major Investor (or transferee of an Investor) that holds at least eight hundred forty-six thousand eight hundred thirty-five (846,835) shares of Registrable Securities and each of BioStratum Incorporated (or, in the event of is a BioStratum Dissolution, the BioStratum Transferees) and Vanderbilt University (“Vanderbilt”) so long as, respectively, BioStratum Incorporated (or the BioStratum Transferees as a collective) continue to hold at least fifty percent (50%) Competitor of the shares of the capital stock of the Company held by BioStratum as of the date hereof and Vanderbilt continues to hold at least fifty percent (50%) of the shares of capital stock held by Vanderbilt as of the date hereof (each as equitably adjusted for stock splits, stock dividends, combinations, recapitalizations, and the like after the Recapitalization (as defined in the Restated Certificate)) (each, a “Major Investor”):Company:
(a) as soon as practicablepracticable upon the receipt of Major Investor’s written request, 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, Company (i) a balance sheet as of the Company 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, and a statement of cash flows for such year, such year-end financial reports to be in reasonable detail, prepared in accordance with generally accepted accounting principles (“GAAP”), and audited and certified by independent public accountants of nationally recognized standing selected by the Company;; and
(b) as soon as practicablepracticable upon the receipt of Major Investor’s written request, but in any event within thirty (30) days after the end of each of the first three (3) quarters of each fiscal year of the Company, an unaudited statements of income statement, statement of 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), together with a written report of the President or Chief Executive Officer briefly summarizing the results from such quarter and any other material developments;
(c) as soon as practicable, but in any event within twenty thirty (2030) days of the end of each month, an unaudited income statement and statement, statement of cash flows flows, bank reconciliation, and aging of accounts receivable and payable for such month, and an unaudited balance sheet for and as of the end of such month, in reasonable detail;
(d) as soon as practicable, but in any event at least thirty (30) days 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) with respect to the financial statements called for in subsections (b) and (c) of this Section 2.1, an instrument executed by the Chief Financial Officer or President of the Company certifying that such financials were all prepared in accordance with GAAP consistently applied with prior practice for earlier periods (with the exception of footnotes 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 by in accordance with GAAP) and fairly present the financial condition of the Company and its results of operation for the period specified, subject to year-end audit adjustment; and
(f) such other information relating to the 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 (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.);
Appears in 1 contract