Information Rights. The Company shall furnish to each Purchaser who holds at least 5% of the Common Stock on a fully diluted as if converted basis (and regardless to each of GE and Midwest if such Purchaser holds at least a majority of the Series B Shares such Purchaser purchased hereunder): (a) within 105 days after the end of each fiscal year (or, if required to be filed with the SEC sooner, then concurrently with such filing), its Form 10-K containing its audited consolidated balance sheet and related statements of income, stockholders' equity and cash flows as of the end of and for such year, setting forth in each case in comparative form the figures for the previous fiscal year, all reported on by PriceWaterhouseCoopers or other independent public accountants of recognized national standing (without any qualification or exception as to the scope of such audit) to the effect that such consolidated financial statements present fairly in all material respects the financial condition and results of operations of the Company and its consolidated Subsidiaries on a consolidated basis in accordance with GAAP consistently applied; (b) within 105 days after the end of each fiscal year (or, if required to be filed with the SEC sooner, then concurrently with such filing), its consolidated balance sheets and related statements of income, stockholders' equity and cash flows as of the end of and for such year, setting forth in each case in comparative form the figures for the previous fiscal year, all certified by one of its Financial Officers as presenting fairly in all material respects the results of operations of the Company on a consolidated basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments and the absence of footnotes; (c) within 60 days after the end of each of the first three fiscal quarters of each fiscal year (or, if required to be filed with the SEC sooner, then concurrently with such filing), its Form 10-Q containing its consolidated balance sheet and related statements of income, stockholders' equity and cash flows as of the end of and for such fiscal quarter and the then elapsed portion of the fiscal year, setting forth in each case in comparative form the figures for the corresponding period or periods of (or, in the case of the balance sheet, as of the end of) the previous fiscal year; (d) within 60 days after the end of each of the first three fiscal quarters of each fiscal year, its consolidated balance sheet and related statements of income, stockholders' equity and cash flows as of the end of and for such fiscal quarter and the then elapsed portion of the fiscal year, setting forth in each case in comparative form the figures for the corresponding period or periods of (or, in the case of the balance sheet, as of the end of) the budget and previous fiscal year, all certified by one of its Financial Officers as presenting fairly in all material respects the results of operations of the Company on a consolidated basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments and the absence of footnotes; (e) within 30 days after the end of each month which is neither a fiscal year end nor a fiscal quarter end, its consolidated balance sheet and related statements of income, stockholders' equity and cash flows as of the end of and for such month and the then elapsed portion of the fiscal year, setting forth in each case in comparative form the figures for the corresponding period or periods of (or, in the case of the balance sheet, as of the end of) the previous fiscal year, all certified by one of its Financial Officers as presenting fairly in all material respects the results of operations of the Company on a consolidated basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments and the absence of footnotes; (f) by no later than December 15 of each fiscal year, a budget and business plan for the immediately succeeding fiscal year in the form approved by the Company's board of directors, in form, scope and detail satisfactory to the Purchasers and on a quarterly basis for each fiscal quarter of such succeeding fiscal year; (g) promptly after the same become publicly available, (to the extent not available through electronic means) copies of all periodic and other reports, proxy statements and other materials filed by the Company or any Subsidiary with the SEC, or any Governmental Agency succeeding to any or all of the functions of the SEC, or with any national securities exchange, or distributed by the Company to its stockholders generally, as the case may be; (h) promptly after the same are delivered to the members of the Board of Directors, copies of all business plans and other financial plans relating to the Company and/or its Subsidiaries; and (i) promptly following any request therefor, such other information regarding the operations, business affairs and financial condition of the Company or any Subsidiary, or compliance with the terms of the this Agreement or any Related Document, as the Purchasers may reasonably request.
Appears in 3 contracts
Sources: Preferred Stock and Subordinated Note Purchase Agreement (Castle Dental Centers Inc), Preferred Stock and Subordinated Note Purchase Agreement (Midwest Mezzanine Fund Ii Lp), Preferred Stock and Subordinated Note Purchase Agreement (Heller Financial Inc)
Information Rights. The Company shall furnish to each Purchaser who holds at least 5% of the Common Stock on a fully diluted as if converted basis (and regardless to each of GE and Midwest if such Purchaser holds at least a majority of the Series B Shares such Purchaser purchased hereunder):
(a) within 105 days after For so long as the end Minimum Shareholding Requirement is satisfied, the Company shall:
(i) provide the Purchasers (which shall be represented by the Investor Officer or such other representatives as the Purchasers may from time to time designate, provided that the Purchasers shall notify the Company in advance of each fiscal year their choice of such representatives) with:
(or, if required A) the right to be filed with the SEC sooner, then concurrently with such filing), its Form 10-K containing its audited consolidated balance sheet visit and related statements of income, stockholders' equity and cash flows as inspect any of the end of offices and for such year, setting forth in each case in comparative form the figures for the previous fiscal year, all reported on by PriceWaterhouseCoopers or other independent public accountants of recognized national standing (without any qualification or exception as to the scope of such audit) to the effect that such consolidated financial statements present fairly in all material respects the financial condition and results of operations properties of the Company and its consolidated Subsidiaries on a consolidated basis in accordance with GAAP consistently applied;
(b) within 105 days after the end of each fiscal year (orother Group Companies and inspect the books, if required to be filed with the SEC soonerrecords, then concurrently with such filing), its consolidated balance sheets accounts and related statements of income, stockholders' equity and cash flows as other financial information of the end of Company and for such yearthe other Group Companies, setting forth in each case upon reasonable notice and at such reasonable times and as often as the Purchasers may reasonably request; notwithstanding anything to the contrary herein, the parties hereto hereby agree and acknowledge that this Section 4.3(a)(i)(A) shall continue to apply so long as the Purchasers hold such amount of Class A Ordinary Shares (including such Class A Ordinary Shares held in comparative the form of ADSs) that represents no less than ten percent (10%) of the figures for total issued and outstanding shares of the previous fiscal year, Company (including all certified by one of its Financial Officers as presenting fairly in all material respects the results of operations issued and outstanding ordinary shares and preferred shares of the Company on a consolidated basis in accordance an as-converted basis), for the avoidance of doubt regardless of whether the Purchasers continue to satisfy the Minimum Shareholding Requirement, but solely for the Purchasers’ tax, accounting or audit purposes or for the Purchasers to otherwise comply with GAAP consistently applied, subject to normal year-end audit adjustments and the absence of footnotesapplicable Laws;
(cB) as soon as available and in any event within 60 90 days after the end of each of the first three fiscal (3) quarters of each fiscal year (orof the Company, if required to be filed with any consolidated unaudited balance sheets of the SEC sooner, then concurrently with such filing), its Form 10-Q containing its Group and consolidated balance sheet and related unaudited statements of income, stockholders' equity income and cash flows as of the end Group for the period then ended, prepared in conformity with generally accepted accounting principles in the applicable jurisdiction applied on a consistent basis, except as otherwise noted therein; provided that such balance sheets, statements of income and for such fiscal quarter and cash flows shall be deemed to have been provided to the then elapsed portion Purchasers if they are filed with, or furnished by the Company or any other Group Company to, the SEC pursuant to Section 13 or 15(d) of the fiscal year, setting forth in each case in comparative form the figures for the corresponding period Exchange Act or periods of (or, in the case of the balance sheet, as of the end of) the previous fiscal yearotherwise;
(dC) as soon as available and in any event within 60 120 days after the end of each fiscal year of the first three fiscal quarters of each fiscal yearCompany, its any consolidated audited balance sheet and related statements of income, stockholders' equity and cash flows the Group as of the end of such year, and any consolidated audited statements of income and cash flows of the Group for the year then ended, prepared in conformity with generally accepted accounting principles in the applicable jurisdiction, applied on a consistent basis, except as otherwise noted therein; and
(D) to the extent the Company or any other Group Company is required by Law or pursuant to the terms of any outstanding Financial Indebtedness of the Company or such fiscal quarter Group Company to prepare such reports, any annual reports, quarterly reports and other periodic reports, pursuant to Section 13 or 15(d) of the Exchange Act or otherwise, actually prepared by the Company or such Group Company as soon as available, provided that any report, schedule, form, statement or other document (including exhibits) filed with, or furnished to, the SEC and publicly available as of such date shall be deemed to have been provided to the Purchasers;
(ii) make appropriate officers and directors of the Company, and the then elapsed portion other Group Companies, available periodically and at such times as reasonably requested by the Purchasers, but not more frequently than once per calendar quarter, for consultation with the Purchasers (which shall be represented by the Investor Officer or such other representatives as the Purchasers may from time to time designate, provided that the Purchasers shall notify the Company in advance of their choice of such representatives) with respect to matters relating to the business and affairs of the fiscal yearCompany and the other Group Companies;
(iii) to the extent consistent with applicable Law (and with respect to events which require public disclosure, setting forth only following the Company’s public disclosure thereof through applicable securities Law filings or otherwise), provide other information that might be requested by the Purchasers from time to time and information in each case in comparative form advance with respect to any significant corporate transactions and the figures for right to consult with the corresponding period or periods of Company and the other Group Companies with respect to such transactions; and
(or, in iv) provide the case of the balance sheet, as of the end of) the budget and previous fiscal year, all certified by one of its Financial Officers as presenting fairly in all Purchasers with sufficient information relating to material respects the results of operations transactions of the Company on a consolidated timely basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments and the absence of footnotes;
(e) within 30 days after the end of each month which is neither a fiscal year end nor a fiscal quarter end, its consolidated balance sheet and related statements of income, stockholders' equity and cash flows as of the end of and for such month and the then elapsed portion of the fiscal year, setting forth in each case in comparative form the figures for the corresponding period or periods of (or, in the case of the balance sheet, as of the end of) the previous fiscal year, all certified by one of its Financial Officers as presenting fairly in all material respects the results of operations of the Company on a consolidated basis in accordance with GAAP consistently applied, subject Purchasers to normal year-end audit adjustments analyze such transactions and the absence of footnotes;
(f) by no later than December 15 of each fiscal year, a budget and business plan for the immediately succeeding fiscal year in the form approved by the Company's board of directors, in form, scope and detail satisfactory to the Purchasers and on a quarterly basis for each fiscal quarter of such succeeding fiscal year;
(g) promptly after the same become publicly available, (to the extent not available through electronic means) copies of all periodic and other reports, proxy statements and other materials filed by the Company or any Subsidiary with the SEC, or any Governmental Agency succeeding to any or all of the functions of the SEC, or with any national securities exchange, or distributed by assist the Company to achieve to its stockholders generallycommercial objectives; provided, as however, that (A) the case may be;
(h) promptly after the same are delivered Company shall not be required to the members of provide information with respect to a transaction unless such transaction is reasonably expected to require approval by the Board of Directors, copies of all business plans and other financial plans relating prior to the Company and/or its Subsidiaries; and
(i) promptly following any request therefor, such other information regarding the operations, business affairs and financial condition of the Company or any Subsidiary, or compliance with the terms of the this Agreement or any Related Document, as the Purchasers may reasonably request.consummation,
Appears in 3 contracts
Sources: Investor Rights Agreement, Investor Rights Agreement, Investor Rights Agreement
Information Rights. The Company shall furnish to each Purchaser who holds at least 5% of the Common Stock on a fully diluted as if converted basis (and regardless to each of GE and Midwest if such Purchaser holds at least a majority of the Series B Shares such Purchaser purchased hereunder):
(a) within 105 days after For so long as the end Minimum Shareholding Requirement is satisfied, the Company shall:
(i) provide the Purchasers (which shall be represented by the Investor Officer or such other representatives as the Purchasers may from time to time designate, provided that the Purchasers shall notify the Company in advance of each fiscal year their choice of such representatives) with:
(or, if required A) the right to be filed with the SEC sooner, then concurrently with such filing), its Form 10-K containing its audited consolidated balance sheet visit and related statements of income, stockholders' equity and cash flows as inspect any of the end of offices and for such year, setting forth in each case in comparative form the figures for the previous fiscal year, all reported on by PriceWaterhouseCoopers or other independent public accountants of recognized national standing (without any qualification or exception as to the scope of such audit) to the effect that such consolidated financial statements present fairly in all material respects the financial condition and results of operations properties of the Company and its consolidated Subsidiaries on a consolidated basis in accordance with GAAP consistently applied;
(b) within 105 days after the end of each fiscal year (orother Group Companies and inspect the books, if required to be filed with the SEC soonerrecords, then concurrently with such filing), its consolidated balance sheets accounts and related statements of income, stockholders' equity and cash flows as other financial information of the end of Company and for such yearthe other Group Companies, setting forth in each case upon reasonable notice and at such reasonable times and as often as the Purchasers may reasonably request; notwithstanding anything to the contrary herein, the parties hereto hereby agree and acknowledge that this Section 4.3(a)(i)(A) shall continue to apply so long as the Purchasers hold such amount of Class A Ordinary Shares (including such Class A Ordinary Shares held in comparative the form of ADSs) that represents no less than ten percent (10%) of the figures for total issued and outstanding shares of the previous fiscal year, Company (including all certified by one of its Financial Officers as presenting fairly in all material respects the results of operations issued and outstanding ordinary shares and preferred shares of the Company on a consolidated basis in accordance an as-converted basis), for the avoidance of doubt regardless of whether the Purchasers continue to satisfy the Minimum Shareholding Requirement, but solely for the Purchasers’ tax, accounting or audit purposes or for the Purchasers to otherwise comply with GAAP consistently applied, subject to normal year-end audit adjustments and the absence of footnotesapplicable Laws;
(cB) as soon as available and in any event within 60 90 days after the end of each of the first three fiscal (3) quarters of each fiscal year (orof the Company, if required to be filed with any consolidated unaudited balance sheets of the SEC sooner, then concurrently with such filing), its Form 10-Q containing its Group and consolidated balance sheet and related unaudited statements of income, stockholders' equity income and cash flows as of the end Group for the period then ended, prepared in conformity with generally accepted accounting principles in the applicable jurisdiction applied on a consistent basis, except as otherwise noted therein; provided that such balance sheets, statements of income and for such fiscal quarter and cash flows shall be deemed to have been provided to the then elapsed portion Purchasers if they are filed with, or furnished by the Company or any other Group Company to, the SEC pursuant to Section 13 or 15(d) of the fiscal year, setting forth in each case in comparative form the figures for the corresponding period Exchange Act or periods of (or, in the case of the balance sheet, as of the end of) the previous fiscal yearotherwise;
(dC) as soon as available and in any event within 60 120 days after the end of each fiscal year of the first three fiscal quarters of each fiscal yearCompany, its any consolidated audited balance sheet and related statements of income, stockholders' equity and cash flows the Group as of the end of such year, and any consolidated audited statements of income and cash flows of the Group for the year then ended, prepared in conformity with generally accepted accounting principles in the applicable jurisdiction, applied on a consistent basis, except as otherwise noted therein; and
(D) to the extent the Company or any other Group Company is required by Law or pursuant to the terms of any outstanding Financial Indebtedness of the Company or such fiscal quarter Group Company to prepare such reports, any annual reports, quarterly reports and other periodic reports, pursuant to Section 13 or 15(d) of the Exchange Act or otherwise, actually prepared by the Company or such Group Company as soon as available, provided that any report, schedule, form, statement or other document (including exhibits) filed with, or furnished to, the SEC and publicly available as of such date shall be deemed to have been provided to the Purchasers;
(ii) make appropriate officers and directors of the Company, and the then elapsed portion other Group Companies, available periodically and at such times as reasonably requested by the Purchasers, but not more frequently than once per calendar quarter, for consultation with the Purchasers (which shall be represented by the Investor Officer or such other representatives as the Purchasers may from time to time designate, provided that the Purchasers shall notify the Company in advance of their choice of such representatives) with respect to matters relating to the business and affairs of the fiscal yearCompany and the other Group Companies;
(iii) to the extent consistent with applicable Law (and with respect to events which require public disclosure, setting forth only following the Company’s public disclosure thereof through applicable securities Law filings or otherwise), provide other information that might be requested by the Purchasers from time to time and information in each case in comparative form advance with respect to any significant corporate transactions and the figures for right to consult with the corresponding period or periods of Company and the other Group Companies with respect to such transactions; and
(or, in iv) provide the case of the balance sheet, as of the end of) the budget and previous fiscal year, all certified by one of its Financial Officers as presenting fairly in all Purchasers with sufficient information relating to material respects the results of operations transactions of the Company on a consolidated timely basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments and the absence of footnotes;
(e) within 30 days after the end of each month which is neither a fiscal year end nor a fiscal quarter end, its consolidated balance sheet and related statements of income, stockholders' equity and cash flows as of the end of and for such month and the then elapsed portion of the fiscal year, setting forth in each case in comparative form the figures for the corresponding period or periods of (or, in the case of the balance sheet, as of the end of) the previous fiscal year, all certified by one of its Financial Officers as presenting fairly in all material respects the results of operations of the Company on a consolidated basis in accordance with GAAP consistently applied, subject Purchasers to normal year-end audit adjustments analyze such transactions and the absence of footnotes;
(f) by no later than December 15 of each fiscal year, a budget and business plan for the immediately succeeding fiscal year in the form approved by the Company's board of directors, in form, scope and detail satisfactory to the Purchasers and on a quarterly basis for each fiscal quarter of such succeeding fiscal year;
(g) promptly after the same become publicly available, (to the extent not available through electronic means) copies of all periodic and other reports, proxy statements and other materials filed by the Company or any Subsidiary with the SEC, or any Governmental Agency succeeding to any or all of the functions of the SEC, or with any national securities exchange, or distributed by assist the Company to achieve to its stockholders generallycommercial objectives; provided, as however, that (A) the case may be;
Company shall not be required to provide information with respect to a transaction unless such transaction is reasonably expected to require approval by the Board prior to its consummation, (hB) promptly after the same are delivered Company shall only be required to the provide information with respect to such transaction if members of the Board of Directorsis reasonably expected to receive such information, copies of all business plans and other financial plans relating (C) the Company shall have no obligation to provide information pursuant to the foregoing in the event that the Purchasers inform the Company and/or its Subsidiaries; andat any time that the Purchasers elect not to receive information hereunder.
(ib) promptly following any request thereforThe Company further agrees to consider, in good faith, the recommendations of the Purchasers (which shall be represented by the Investor Officer or such other information regarding the operations, business affairs and financial condition of the Company or any Subsidiary, or compliance with the terms of the this Agreement or any Related Document, representatives as the Purchasers may reasonably requestfrom time to time designate, provided that the Purchasers shall notify the Company in advance of their choice of such representatives) in connection with the matters on which they are consulted as described above, recognizing that the ultimate discretion with respect to all such matters shall be retained by the Company.
(c) Notwithstanding anything to the contrary in this Agreement, the Company shall be under no obligation under this Section 4.3 to provide any Purchaser with any material non-public information with respect to the Company, and any Purchaser to whom such non-public information, if any, has been provided by the Company shall keep such information confidential.
(d) Notwithstanding anything to the contrary herein, this Section 4.3 shall be without prejudice and shall not limit the rights of the Purchasers set forth elsewhere in this Agreement, including under Section 4.1 and Section 4.2.
Appears in 3 contracts
Sources: Investor Rights Agreement (Shandong Hi-Speed Holdings Group LTD), Investor Rights Agreement (Chen Sheng), Investor Rights Agreement (VNET Group, Inc.)
Information Rights. The Subject to appropriate confidentiality arrangements, the Company will provide HFCP IV, or such other Holder as the Holders shall furnish to each Purchaser who holds at least 5% of the Common Stock on a fully diluted as if converted basis (and regardless to each of GE and Midwest if such Purchaser holds at least a majority of the Series B Shares such Purchaser purchased hereunder):designate:
(a) as soon as available and in any event within 105 90 days after the end of each fiscal year (orof the Company, if required to be filed with the SEC sooner, then concurrently with such filing), its Form 10-K containing its audited consolidated a balance sheet and related statements of income, stockholders' equity and cash flows the Company as of the end of such fiscal year and the related statements of profit and loss and cash flows for such fiscal year, setting forth in each case in comparative form the figures for the previous fiscal year, all reported on and accompanied by PriceWaterhouseCoopers a report thereon of Ernst & Young LLP or other independent public accountants of nationally recognized national standing (without any qualification or exception as to the scope of such audit) to the effect that such consolidated financial statements present fairly in all material respects the financial condition and results of operations of the Company and its consolidated Subsidiaries on a consolidated basis in accordance with GAAP consistently appliedstanding;
(b) as soon as available and in any event within 105 days after the end of each fiscal year (or, if required to be filed with the SEC sooner, then concurrently with such filing), its consolidated balance sheets and related statements of income, stockholders' equity and cash flows as of the end of and for such year, setting forth in each case in comparative form the figures for the previous fiscal year, all certified by one of its Financial Officers as presenting fairly in all material respects the results of operations of the Company on a consolidated basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments and the absence of footnotes;
(c) within 60 45 days after the end of each of the first three fiscal quarters of each fiscal year (orof the Company, if required to be filed with the SEC sooner, then concurrently with such filing), its Form 10-Q containing its consolidated a balance sheet and related statements of income, stockholders' equity and cash flows the Company as of the end of and for such fiscal quarter and the then elapsed related statements of profit and loss and cash flows for such quarter and for the portion of the Company's fiscal yearyear then ended, setting forth in each case in comparative form the figures for the corresponding period or periods of (or, in quarter and the case corresponding portion of the balance sheet, as of the end of) the Company's previous fiscal year, all certified (subject to normal year-end adjustments) as to fairness of presentation, consistency and, except for the absence of footnotes, generally accepted accounting principles by the chief financial officer or the chief accounting officer of the Company;
(dc) to the extent prepared by the Company and provided to management of the Company, as soon as available and in any event within 60 10 days after the end of each month, a balance sheet of the first three fiscal quarters of each fiscal year, its consolidated balance sheet and related statements of income, stockholders' equity and cash flows Company as of the end of such month and the related statements of profit and loss and cash flows for such fiscal quarter and the then elapsed portion of the fiscal yearmonth, setting forth in each case case, in comparative form the figures for the corresponding period or periods of (or, in the case month of the balance sheet, as of the end of) the budget and Company's previous fiscal year, all certified by one of its Financial Officers as presenting fairly in all material respects the results of operations of the Company on a consolidated basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments and the absence of footnotes;
(e) within 30 days after the end of each month which is neither a fiscal year end nor a fiscal quarter end, its consolidated balance sheet and related statements of income, stockholders' equity and cash flows as of the end of and for such month and the then elapsed portion of the fiscal year, setting forth in each case in comparative form the figures for the corresponding period or periods of (or, in the case of the balance sheet, as of the end of) the previous fiscal year, all certified by one of its Financial Officers as presenting fairly in all material respects the results of operations of the Company on a consolidated basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments and the absence of footnotes;
(f) by no later than December 15 of each fiscal year, a budget and business plan for the immediately succeeding fiscal year in the form approved by the Company's board of directors, in form, scope and detail satisfactory to the Purchasers and on a quarterly basis for each fiscal quarter of such succeeding fiscal year;
(g) promptly after the same become publicly available, (to the extent not available through electronic means) copies of all periodic and other reports, proxy statements and other materials filed by the Company or any Subsidiary with the SEC, or any Governmental Agency succeeding to any or all of the functions of the SEC, or with any national securities exchange, or distributed by the Company to its stockholders generally, as the case may be;
(h) promptly after the same are delivered to the members of the Board of Directors, copies of all business plans and other financial plans relating to the Company and/or its Subsidiaries; and
(id) promptly following any request thereforsimultaneously with the delivery of each set of financial statements referred to in clauses (a) and (b) above, such other information regarding a certificate of the operations, business affairs and chief financial condition officer or the chief accounting officer of the Company stating whether any Event of Default exists on the date of such certificate and, if any Event of Default then exists, setting forth the details thereof and the action which the Company is taking or any Subsidiary, or compliance proposes to take with the terms of the this Agreement or any Related Document, as the Purchasers may reasonably requestrespect thereto.
Appears in 2 contracts
Sources: Securities Purchase Agreement (Nasdaq Stock Market Inc), Securityholders Agreement (Nasdaq Stock Market Inc)
Information Rights. The Company shall furnish deliver to each Purchaser Investor who holds (and continues to hold) either (i) at least 5% of Conversion Stock or (ii) Conversion Stock having an aggregate preferential amount payable upon a Liquidation Event (as defined in the Common Stock on a fully diluted as if converted basis (and regardless to each Restated Certificate) of GE and Midwest if such Purchaser holds at least $15,000,000 (each a majority of the Series B Shares such Purchaser purchased hereunder“Major Investor”):
(a) as soon as practicable, but in any event within 105 one hundred twenty (120) calendar days after the end of each fiscal year (orof the Company, consolidated balance sheets of the Company and its subsidiaries, if required to be filed with the SEC soonerany, then concurrently with such filing), its Form 10-K containing its audited consolidated balance sheet and related statements of income, stockholders' equity and cash flows as of the end of and for such year, setting forth in each case in comparative form the figures for the previous fiscal year, all reported on by PriceWaterhouseCoopers or other independent public accountants and consolidated statements of recognized national standing (without any qualification or exception as to the scope income and consolidated statements of such audit) to the effect that such consolidated financial statements present fairly in all material respects the financial condition and results of operations cash flows of the Company and its consolidated Subsidiaries on a consolidated basis subsidiaries, if any, for such year, prepared in accordance with GAAP consistently appliedgenerally accepted accounting principles (“GAAP”), all in reasonable detail and audited by independent public accountants of national standing selected by the Company;
(b) as soon as practicable, but in any event within 105 days after the end of each fiscal year forty-five (or, if required to be filed with the SEC sooner, then concurrently with such filing), its consolidated balance sheets and related statements of income, stockholders' equity and cash flows as of the end of and for such year, setting forth in each case in comparative form the figures for the previous fiscal year, all certified by one of its Financial Officers as presenting fairly in all material respects the results of operations of the Company on a consolidated basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments and the absence of footnotes;
(c45) within 60 calendar days after the end of each of the first three fiscal (3) quarters of each fiscal year (orof the Company, consolidated balance sheets of the Company and its subsidiaries, if required to be filed with the SEC soonerany, then concurrently with such filing), its Form 10-Q containing its consolidated balance sheet and related statements of income, stockholders' equity and cash flows as of the end of such quarter, and consolidated statements of income and consolidated statements of cash flows of the Company and its subsidiaries, if any, for such fiscal quarter and the then elapsed portion prepared in accordance with GAAP, all in reasonable detail;
(c) as soon as practicable, but in any event within thirty (30) calendar days of the fiscal yearend of each month, setting forth in each case in comparative form the figures for the corresponding period or periods of (or, in the case consolidated balance sheets of the balance sheetCompany and its subsidiaries, if any, as of the end of) of such month, and consolidated statements of income and consolidated statements of cash flows of the previous fiscal yearCompany and its subsidiaries, if any, for such month prepared in accordance with GAAP, all in reasonable detail;
(d) as soon as practicable, but in any event within 60 thirty (30) calendar days after of the end of each month, executive summaries of the first three fiscal quarters of each fiscal year, its consolidated balance sheet and related statements of income, stockholders' equity and cash flows as of the end of and for such fiscal quarter and the then elapsed portion of the fiscal year, setting forth in each case in comparative form the figures for the corresponding period or periods of (or, in the case of the balance sheet, as of the end of) the budget and previous fiscal year, all certified by one of its Financial Officers as presenting fairly in all material respects the results of operations of the Company on a consolidated basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments and the absence of footnotes;Company’s principal activities; and
(e) as soon as practicable, but in any event within 30 forty-five (45) calendar days after prior to the end of each month which is neither a fiscal year end nor a fiscal quarter end, its consolidated balance sheet and related statements of income, stockholders' equity and cash flows as of the end of and for such month and the then elapsed portion of the fiscal year, setting forth in each case in comparative form the figures for the corresponding period or periods of (or, in the case of the balance sheet, as of the end of) the previous fiscal year, all certified by one of its Financial Officers as presenting fairly in all material respects the results of operations of the Company on a consolidated basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments and the absence of footnotes;
(f) by no later than December 15 of each fiscal year, a budget and business plan for the immediately succeeding next fiscal year in the form approved year, prepared on a monthly basis, including balance sheets and income statements for such months and, as soon as prepared, any other budgets or revised budgets prepared by the Company's board of directors, in form, scope and detail satisfactory to the Purchasers and on a quarterly basis for each fiscal quarter of such succeeding fiscal year;
(g) promptly after the same become publicly available, (to the extent not available through electronic means) copies of all periodic and other reports, proxy statements and other materials filed by the Company or any Subsidiary with the SEC, or any Governmental Agency succeeding to any or all of the functions of the SEC, or with any national securities exchange, or distributed by the Company to its stockholders generally, as the case may be;
(h) promptly after the same are delivered to the members of the Board of Directors, copies of all business plans and other financial plans relating to the Company and/or its Subsidiaries; and
(i) promptly following any request therefor, such other information regarding the operations, business affairs and financial condition of the Company or any Subsidiary, or compliance with the terms of the this Agreement or any Related Document, as the Purchasers may reasonably request.
Appears in 2 contracts
Sources: Investors’ Rights Agreement (Chegg, Inc), Investors’ Rights Agreement (Chegg, Inc)
Information Rights. The Company shall furnish to each Purchaser who holds at least 5% of the Common Stock on a fully diluted As long as if converted basis (and regardless to each of GE and Midwest if such Purchaser holds at least a majority any share of the Series B Shares such Purchaser purchased hereunder):A Preferred Stock remains outstanding, the Company shall deliver to each Holder:
(a) within 105 ninety (90) days after the end of each fiscal year of iHM (or, if required which may be extended to be filed with the extent such extension is permitted and such extension is granted by the SEC soonerbut, then concurrently with in any event, no later than 105 days after the end of such filingfiscal year), its Form 10-K containing its audited a consolidated balance sheet of iHM and its Subsidiaries at the end of such fiscal year, and the related consolidated statements of incomeincome or operations, stockholders' ’ equity and cash flows as of the end of and for such fiscal year, setting forth in each case in comparative form the figures for the previous fiscal year, all reported on by PriceWaterhouseCoopers or other independent public accountants of recognized national standing (without any qualification or exception as to the scope of such audit) to the effect that such consolidated financial statements present fairly in all material respects the financial condition reasonable detail and results of operations of the Company and its consolidated Subsidiaries on a consolidated basis prepared in accordance with GAAP consistently appliedGAAP, audited and accompanied by a report and opinion of any independent registered public accounting firm of nationally recognized standing, which report and opinion shall be prepared in accordance with generally accepted auditing standards;
(b) within 105 45 days after the end of each of the first three fiscal quarters of each fiscal year of iHM (or, if required which may be extended to be filed with the extent such extension is permitted and such extension is granted by the SEC soonerbut, then concurrently with such filing)in any event, its consolidated balance sheets and related statements of income, stockholders' equity and cash flows as of no later than 60 days after the end of such fiscal quarter), a consolidated balance sheet of iHM and its Subsidiaries as at the end of such fiscal quarter and the related consolidated statements of income or operations for such fiscal quarter and the portion of the fiscal year then ended, setting forth in comparative form the figures for the corresponding fiscal quarter of the previous fiscal year and the corresponding portion of the previous fiscal year, and statements of stockholders’ equity for the current fiscal quarter and consolidated statement of cash flows for the portion of the fiscal year then ended, setting forth in each case in comparative form the figures for the corresponding portion of the previous fiscal year, all in reasonable detail and certified by one the chief executive officer, president, vice president, chief financial officer, treasurer or assistant treasurer or another similar officer of its Financial Officers iHM as fairly presenting fairly in all material respects the financial condition, results of operations operations, stockholders’ equity and cash flows of the Company on a consolidated basis iHM and its Subsidiaries in accordance with GAAP consistently appliedGAAP, subject only to normal year-end audit adjustments and the absence of footnotes;
(c) within 60 days after the end of each of the first three fiscal quarters of each fiscal year (or, if required to be filed with the SEC sooner, then concurrently with such filing), its Form 10-Q containing its consolidated balance sheet and related statements of income, stockholders' equity and cash flows as of the end of and for such fiscal quarter and the then elapsed portion of the fiscal year, setting forth in each case in comparative form the figures for the corresponding period or periods of (or, in the case of the balance sheet, as of the end of) the previous fiscal year;[Reserved]; and
(d) within 60 days after with each set of consolidated financial statements referred to in Section 1.2(a) and Section 1.2(b) above, supplemental unaudited financial information required to provide the end of each of the first three fiscal quarters of each fiscal year, its consolidated balance sheet revenue and related statements of income, stockholders' equity and cash flows as of the end of and for such fiscal quarter and the then elapsed portion of the fiscal year, setting forth in each case in comparative form the figures for the corresponding period or periods of (or, in the case of the balance sheet, as of the end of) the budget and previous fiscal year, all certified by one of its Financial Officers as presenting fairly in all material respects the results of operations assets of the Company and iHM and its Subsidiaries as a percentage of the total revenue and assets of the iHM Group Parties as a whole. Notwithstanding the foregoing, the obligations in Section 1.2(a) and Section 1.2(b) may be satisfied with respect to financial information of iHM and its Subsidiaries by furnishing (A) the applicable financial statements of iHM (or any direct or indirect parent of iHM) or (B) iHM’s (or any direct or indirect parent thereof), as applicable, Form 10-K or 10-Q, as applicable, filed with the SEC; provided that, with respect to clauses (A) and (B), (i) to the extent such information relates to a parent of iHM, such information is accompanied by consolidating information that explains in reasonable detail the differences between the information relating to such parent, on the one hand, and the information relating to iHM and its Subsidiaries on a consolidated basis stand-alone basis, on the other hand, and (ii) to the extent such information is in lieu of information required to be provided under clause (a) of this Section 1.2, such materials are accompanied by a report and opinion of any independent registered public accounting firm of nationally recognized standing, which report and opinion shall be prepared in accordance with GAAP consistently appliedgenerally accepted auditing standards. Documents required to be delivered pursuant to this Section 1.2 may be delivered electronically and, subject if so delivered, shall be deemed to normal year-end audit adjustments and have been delivered on the absence of footnotes;
(e) within 30 days after the end of each month which is neither a fiscal year end nor a fiscal quarter end, its consolidated balance sheet and related statements of income, stockholders' equity and cash flows as of the end of and for such month and the then elapsed portion of the fiscal year, setting forth in each case in comparative form the figures for the corresponding period or periods of (or, in the case of the balance sheet, as of the end of) the previous fiscal year, all certified by one of its Financial Officers as presenting fairly in all material respects the results of operations of the Company on a consolidated basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments and the absence of footnotes;
(f) by no later than December 15 of each fiscal year, a budget and business plan for the immediately succeeding fiscal year in the form approved by the Company's board of directors, in form, scope and detail satisfactory to the Purchasers and on a quarterly basis for each fiscal quarter of such succeeding fiscal year;
(g) promptly after the same become publicly available, (to the extent not available through electronic means) copies of all periodic and other reports, proxy statements and other materials filed by the Company or any Subsidiary with the SEC, or any Governmental Agency succeeding to any or all of the functions of the SEC, or with any national securities exchange, or distributed by the Company to its stockholders generally, as the case may be;
(h) promptly after the same are delivered to the members of the Board of Directors, copies of all business plans and other financial plans relating to the Company and/or its Subsidiaries; and
date (i) promptly following any request therefor, on which (x) such other information regarding documents become available on the operations, business affairs SEC’s Electronic Data Gathering Analysis and financial condition of the Company Retrieval (“▇▇▇▇▇”) website or (y) iHM (or any Subsidiarydirect or indirect parent of iHM) posts such documents, or compliance with the terms provides a link thereto on its website; or (ii) on which such documents are posted on iHM’s behalf on IntraLinks/IntraAgency or another relevant website, if any, to which each Holder has access. Each Holder shall be solely responsible for timely accessing posted documents and maintaining its copies of the this Agreement or any Related Document, as the Purchasers may reasonably requestsuch documents.
Appears in 2 contracts
Sources: Series a Investors Rights Agreement, Series a Investors Rights Agreement (iHeartMedia, Inc.)
Information Rights. The Company shall furnish to each Purchaser who covenants and agrees that, commencing on the date of this Agreement, so long as an Investor holds at least 5% (x) 2,000,000 Investment Securities (other than with respect to the Convertible Notes), or (y) US$1,000,000 of the Common Stock on a fully diluted principal amount of the Convertible Notes or Conversion Shares issued upon conversion of such principal amount of the Convertible Notes, as if converted basis (and regardless applicable, the Company will deliver to each of GE such Investor (each a “Major Investor”) the following with respect to itself and Midwest if such Purchaser holds at least a majority of the Series B Shares such Purchaser purchased hereunder):its Subsidiaries:
(ai) audited annual consolidated financial statements within 105 120 days after the end of each fiscal year (oryear, if required to be filed with the SEC sooner, then concurrently with such filing), its Form 10-K containing its including an audited consolidated balance sheet and related statements of income, stockholders' equity and cash flows as of the end of such year and a consolidated statement of operation and a consolidated statement of cash flows for such year, setting forth in each case in comparative form the figures for the previous fiscal year, all reported on by PriceWaterhouseCoopers or other independent public accountants of recognized national standing (without any qualification or exception as to the scope of such audit) to the effect that such consolidated financial statements present fairly in all material respects the financial condition and results of operations of the Company and its consolidated Subsidiaries on a consolidated basis in accordance with GAAP consistently applied;
(b) within 105 days after the end of each fiscal year (or, if required to be filed with the SEC sooner, then concurrently with such filing), its consolidated balance sheets and related statements of income, stockholders' equity and cash flows as of the end of and for such year, setting forth in each case in comparative form the figures for the previous fiscal year, all certified by one of its Financial Officers as presenting fairly in all material respects the results of operations of the Company on a consolidated basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments and the absence of footnotes;
(c) within 60 days after the end of each of the first three fiscal quarters of each fiscal year (or, if required to be filed with the SEC sooner, then concurrently with such filing), its Form 10-Q containing its consolidated balance sheet and related statements of income, stockholders' equity and cash flows as of the end of and for such fiscal quarter and the then elapsed portion of the fiscal year, setting forth in each case in comparative form the figures from the Company’s previous fiscal year, as applicable, and audited by a “Big 4” accounting firm approved by the Board;
(ii) unaudited quarterly consolidated financial statements within 45 days of the end of each fiscal quarter, including an unaudited balance sheet as of the end of such quarter, and an unaudited statement of operations and an unaudited statement of cash flows for such quarter, together with a comparison to the entity’s operating plan and budget by the chief financial officer of the entity explaining any significant differences in the statements from the company’s operating plan and budget for the corresponding period and certifying that such statements fairly present the consolidated financial position and consolidated financial result of the Company for the fiscal quarter covered;
(iii) unaudited monthly consolidated financial statements within 30 days of the end of each month, including an unaudited balance sheet as of the end of each such month, and an unaudited statement of operations and an unaudited statement of cash flows for such month, certified by the chief financial officer of the Company that such statements fairly represent the consolidated financial position and consolidated financial result of the Company for the month covered;
(iv) a comprehensive, consolidated operating budget forecasting the Company’s revenues, expenses and cash position on a month to month basis for the upcoming fiscal quarter, at least 30 days prior to the start of each fiscal quarter;
(v) a comprehensive, consolidated operating budget forecasting the Company’s revenues, expenses and cash position on a month to month basis for the upcoming fiscal year, at least 60 days prior to the start of each fiscal year;
(vi) copies of all documents or periods other information sent to any shareholder as such, and
(vii) upon the written request by the Major Investor, such other information as the Major Investor shall reasonably request including for tax purposes in any jurisdiction. All financial statements to be provided to the Major Investors pursuant to this Section 2.1 and pursuant to any other Transaction Agreements or the Memorandum and Articles of (orAssociation shall be prepared in English language in conformance with US GAAP, as amended and interpreted from time to time, and in the case of the balance sheet, as of the end of) the previous fiscal year;
(d) within 60 days after the end of each of the first three fiscal quarters of each fiscal year, its consolidated balance sheet and related financial statements of income, stockholders' equity and cash flows as of the end of and for such fiscal quarter and the then elapsed portion of the fiscal year, setting forth in each case in comparative form the figures for the corresponding period or periods of (orCompany, in the case of the balance sheet, as of the end of) the budget and previous fiscal year, all certified by one of its Financial Officers as presenting fairly in all material respects the results of operations of the Company on a consolidated basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments and the absence of footnotes;
(e) within 30 days after the end of each month which is neither a fiscal year end nor a fiscal quarter end, its consolidated balance sheet and related statements of income, stockholders' equity and cash flows as of the end of and for such month and the then elapsed portion of the fiscal year, setting forth in each case in comparative form the figures for the corresponding period or periods of (or, in the case of the balance sheet, as of the end of) the previous fiscal year, all certified by one of its Financial Officers as presenting fairly in all material respects the results of operations of the Company on a consolidated basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments and the absence of footnotes;
(f) by no later than December 15 of each fiscal year, a budget and business plan for the immediately succeeding fiscal year in the form approved by the Company's board of directors, in form, scope and detail satisfactory to the Purchasers and on a quarterly basis for each fiscal quarter of such succeeding fiscal year;
(g) promptly after the same become publicly available, (to the extent not available through electronic means) copies of all periodic and other reports, proxy statements and other materials filed by the Company or any Subsidiary with the SEC, or any Governmental Agency succeeding to any or shall consolidate all of the functions of the SEC, or with any national securities exchange, or distributed by the Company to its stockholders generally, as the case may be;
(h) promptly after the same are delivered to the members of the Board of Directors, copies financial results of all business plans and other financial plans relating to the Company and/or its Subsidiaries; and
(i) promptly following any request therefor, such other information regarding the operations, business affairs and financial condition of the Company or any Subsidiary, or compliance with the terms of the this Agreement or any Related Document, as the Purchasers may reasonably requestGroup Companies.
Appears in 2 contracts
Sources: Investors' Rights Agreement, Investors’ Rights Agreement (iSoftStone Holdings LTD)
Information Rights. The Company shall furnish to each Purchaser who holds at least 5For so long as the Stagwell Parties “beneficially own” (as such term is defined in Rule 13d-3 under the Exchange Act) more than 10% of the Common Stock on a fully diluted as if converted basis (then issued and regardless outstanding voting securities of the Company, the Company shall provide to each of GE and Midwest if such Purchaser holds at least a majority of the Series B Shares such Purchaser purchased hereunder):Stagwell Party:
(a) within 105 days after the end of each fiscal year (or, if required to be filed with the SEC sooner, then concurrently with such filing), its Form 10-K containing its audited consolidated balance sheet and related statements of income, stockholders' equity and cash flows as of the end of and for such year, setting forth in each case in comparative form the figures for the previous fiscal year, all reported on by PriceWaterhouseCoopers or other independent public accountants of recognized national standing (without any qualification or exception as to the scope of such audit) to the effect that such consolidated a. quarterly financial statements present fairly in all material respects as soon as reasonably practicable after they become available, but no later than the financial condition and results earlier of operations of the Company and its consolidated Subsidiaries on a consolidated basis in accordance with GAAP consistently applied;
(bi) within 105 days after the end of each fiscal year forty-five (or, if required to be filed with the SEC sooner, then concurrently with such filing), its consolidated balance sheets and related statements of income, stockholders' equity and cash flows as of the end of and for such year, setting forth in each case in comparative form the figures for the previous fiscal year, all certified by one of its Financial Officers as presenting fairly in all material respects the results of operations of the Company on a consolidated basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments and the absence of footnotes;
(c45) within 60 days after the end of each of the first three fiscal (3) quarters of each fiscal year of the Company and (orii) the applicable filing deadlines under SEC rules, if required prepared in accordance with GAAP as in effect from time to time, which such financial statements shall include the consolidated balance sheet of the Company and its Subsidiaries and the related consolidated statements of operations, changes in shareholders’ equity and cash flows; provided, that this requirement shall be filed with deemed to have been satisfied if, on or prior to such date, the SEC sooner, then concurrently with such filing), Company files its quarterly report on Form 10-Q containing its consolidated balance sheet and related statements of income, stockholders' equity and cash flows as of for the end of and for such applicable fiscal quarter and with the then elapsed portion of SEC; and
b. annual financial statements audited by a nationally recognized accounting firm as soon as reasonably practicable after they become available, but no later than the fiscal year, setting forth in each case in comparative form the figures for the corresponding period or periods earlier of (or, in the case of the balance sheet, as of the end ofi) the previous fiscal year;
ninety (d90) within 60 days after the end of each of the first three fiscal quarters of each fiscal year, its consolidated balance sheet and related statements of income, stockholders' equity and cash flows as of the end of and for such fiscal quarter and the then elapsed portion of the fiscal year, setting forth in each case in comparative form the figures for the corresponding period or periods of (or, in the case of the balance sheet, as of the end of) the budget and previous fiscal year, all certified by one of its Financial Officers as presenting fairly in all material respects the results of operations year of the Company on a consolidated basis and (ii) the applicable filing deadline under SEC rules, prepared in accordance with GAAP consistently appliedas in effect from time to time, subject to normal year-end audit adjustments and which such audited financial statements shall include the absence of footnotes;
(e) within 30 days after the end of each month which is neither a fiscal year end nor a fiscal quarter end, its consolidated balance sheet of the Company and its Subsidiaries and the related consolidated statements of incomeoperations, stockholders' changes in shareholders’ equity and cash flows as of flows; provided, that this requirement shall be deemed to have been satisfied if, on or prior to such date, the end of and for such month and the then elapsed portion of the fiscal year, setting forth in each case in comparative form the figures Company files its annual report on Form 10-K for the corresponding period or periods of (or, in the case of the balance sheet, as of the end of) the previous fiscal year, all certified by one of its Financial Officers as presenting fairly in all material respects the results of operations of the Company on a consolidated basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments and the absence of footnotes;
(f) by no later than December 15 of each fiscal year, a budget and business plan for the immediately succeeding applicable fiscal year in the form approved by the Company's board of directors, in form, scope and detail satisfactory to the Purchasers and on a quarterly basis for each fiscal quarter of such succeeding fiscal year;
(g) promptly after the same become publicly available, (to the extent not available through electronic means) copies of all periodic and other reports, proxy statements and other materials filed by the Company or any Subsidiary with the SEC, or any Governmental Agency succeeding to any or all of the functions of the SEC, or with any national securities exchange, or distributed by the Company to its stockholders generally, as the case may be;
(h) promptly after the same are delivered to the members of the Board of Directors, copies of all business plans and other financial plans relating to the Company and/or its Subsidiaries; and
(i) promptly following any request therefor, such other information regarding the operations, business affairs and financial condition of the Company or any Subsidiary, or compliance with the terms of the this Agreement or any Related Document, as the Purchasers may reasonably request.
Appears in 2 contracts
Sources: Transaction Agreement (MDC Partners Inc), Confidentiality Agreement (Stagwell Inc)
Information Rights. The Company shall furnish to each Purchaser who holds at least 5% of the Common Stock on a fully diluted as if converted basis (and regardless to each of GE and Midwest if such Purchaser holds at least a majority of the Series B Shares such Purchaser purchased hereunder):
(a) within 105 days after the end of each fiscal year For so long as any APLD Investor is a party to this Agreement (or, if required subject to be filed with the SEC sooner, then concurrently with such filingSection 5.1), its Form 10-K containing its audited consolidated balance sheet and related statements without limitation or prejudice of income, stockholders' equity and cash flows as any of the end of and for such year, setting forth in each case in comparative form the figures for the previous fiscal year, all reported on by PriceWaterhouseCoopers or other independent public accountants of recognized national standing (without any qualification or exception as rights provided to the scope APLD Investors hereunder, the Company shall, with respect to each such APLD Investor:
i. provide each APLD Investor or its designated representative with:
(A) upon reasonable notice and at mutually convenient times, the right to visit and inspect any of such audit) to the effect that such consolidated financial statements present fairly in all material respects the financial condition offices and results of operations properties of the Company and its consolidated Subsidiaries on a consolidated basis in accordance with GAAP consistently appliedand inspect and copy the books and records of the Company and its Subsidiaries;
(bB) as soon as available and in any event within 105 days after the end of each fiscal year (or, if required to be filed with the SEC sooner, then concurrently with such filing), its consolidated balance sheets and related statements of income, stockholders' equity and cash flows as of the end of and for such year, setting forth in each case in comparative form the figures for the previous fiscal year, all certified by one of its Financial Officers as presenting fairly in all material respects the results of operations of the Company on a consolidated basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments and the absence of footnotes;
(c) within 60 45 days after the end of each of the first three fiscal quarters of each fiscal year (orof the Company, if required to be filed with the SEC sooner, then concurrently with such filing), its Form 10-Q containing its consolidated balance sheet sheets of the Company and related statements of income, stockholders' equity and cash flows its Subsidiaries as of the end of such period, and for such fiscal quarter consolidated statements of income and the then elapsed portion cash flows of the fiscal year, setting forth in each case in comparative form the figures Company and its Subsidiaries for the corresponding period or periods of (or, then ended prepared in conformity with generally accepted accounting principles in the case United States applied on a consistent basis, except as otherwise noted therein, and subject to the absence of the balance sheet, as of the footnotes and to year-end of) the previous fiscal yearadjustments;
(dC) as soon as available and in any event within 60 120 days after the end of each fiscal year of the first three fiscal quarters of each fiscal yearCompany, its a consolidated balance sheet of the Company and related statements of income, stockholders' equity and cash flows its Subsidiaries as of the end of and for such fiscal quarter and the then elapsed portion of the fiscal year, setting forth in each case in comparative form the figures for the corresponding period or periods and consolidated statements of (or, in the case of the balance sheet, as of the end of) the budget income and previous fiscal year, all certified by one of its Financial Officers as presenting fairly in all material respects the results of operations cash flows of the Company and its Subsidiaries for the year then ended prepared in conformity with generally accepted accounting principles in the United States applied on a consolidated basis in accordance consistent basis, except as otherwise noted therein, together with GAAP consistently applied, subject to normal year-end audit adjustments and the absence an auditor’s report thereon of footnotesa firm of established national reputation;
(eD) within 30 days after to the end extent the Company is required by applicable Law or pursuant to the terms of each month which is neither a fiscal year end nor a fiscal quarter end, its consolidated balance sheet and related statements of income, stockholders' equity and cash flows as of the end of and for such month and the then elapsed portion of the fiscal year, setting forth in each case in comparative form the figures for the corresponding period or periods of (or, in the case of the balance sheet, as of the end of) the previous fiscal year, all certified by one of its Financial Officers as presenting fairly in all material respects the results of operations any outstanding indebtedness of the Company on a consolidated basis in accordance with GAAP consistently appliedto prepare such reports, subject to normal year-end audit adjustments and the absence of footnotes;
(f) by no later than December 15 of each fiscal yearany annual reports, a budget and business plan for the immediately succeeding fiscal year in the form approved by the Company's board of directors, in form, scope and detail satisfactory to the Purchasers and on a quarterly basis for each fiscal quarter of such succeeding fiscal year;
(g) promptly after the same become publicly available, (to the extent not available through electronic means) copies of all periodic reports and other reportsperiodic reports pursuant to Section 13 or 15(d) of the Exchange Act, proxy statements and other materials filed actually prepared by the Company or any Subsidiary with the SEC, or any Governmental Agency succeeding to any or all of the functions of the SEC, or with any national securities exchange, or distributed by the Company to its stockholders generally, as the case may be;soon as available; and
(hE) promptly after the same are delivered to the members of the Board of Directorsupon written request by such APLD Investor, copies of all business plans materials provided to the Board, subject to appropriate protections with respect to confidentiality and other financial plans preservation of attorney-client privilege; provided, that, in each case, if the Company makes the information described in clauses (B), (C) and (D) of this Section 3.3(a)(i) available through public filings on the E▇▇▇▇ System or any successor or replacement system of the U.S. Securities and Exchange Commission, the requirement to deliver such information shall be deemed satisfied;
ii. make appropriate officers and/or Directors of the Company available, and cause the officers and directors of its Subsidiaries to be made available, periodically and at such times as reasonably requested by each APLD Investor, upon reasonable notice and at mutually convenient times, for consultation with such APLD Investor or its designated representative with respect to matters relating to the business and affairs of the Company and/or and its Subsidiaries; and
iii. to the extent that such APLD Investor requests to receive such information and rights, and to the extent consistent with applicable Law or listing standards (iand with respect to events which require public disclosure, only following the Company’s public disclosure thereof through applicable securities law filings or otherwise), inform each APLD Investor or its designated representative in advance with respect to any significant corporate actions, and to provide (or cause to be provided) promptly following any request thereforeach APLD Investor or its designated representative with the right to consult with the Company and its Subsidiaries with respect to such actions should such APLD Investor elect to do so; provided, however, that this right to consult must be exercised within five days after the Company informs each such other information regarding the operations, business affairs and financial condition APLD Investor of the proposed corporate action; provided, further, that the Company shall be under no obligation to provide each such APLD Investor with any material non-public information with respect to such corporate action.
(b) The Company agrees to consider, in good faith, the recommendations of each APLD Investor or any Subsidiary, or compliance its designated representative in connection with the terms of matters on which it is consulted as described above in this Section 3.3, recognizing that the this Agreement or any Related Document, as ultimate discretion with respect to all such matters shall be retained by the Purchasers may reasonably requestCompany.
Appears in 2 contracts
Sources: Investor Rights Agreement (Applied Digital Corp.), Investor Rights Agreement (Ekso Bionics Holdings, Inc.)
Information Rights. The Company shall furnish to each Purchaser who holds at least 5% of the Common Stock on a fully diluted as if converted basis (and regardless to each of GE and Midwest if such Purchaser holds at least a majority of the Series B Shares such Purchaser purchased hereunder):
(a) If the Holder so requests, the Company shall deliver to the Holder:
(i) as soon as practicable, and in any event within 105 10 business days of the same becoming available after the end of each fiscal year (or, if required to be filed with the SEC sooner, then concurrently with such filing), its Form 10-K containing its audited consolidated balance sheet and related statements of income, stockholders' equity and cash flows as of the end of and for such year, setting forth in each case in comparative form the figures for the previous fiscal year, all reported on by PriceWaterhouseCoopers or other independent public accountants of recognized national standing (without any qualification or exception as to the scope of such audit) to the effect that such consolidated financial statements present fairly in all material respects the financial condition and results of operations of the Company and its consolidated Subsidiaries on a consolidated basis in accordance with GAAP consistently applied;
(b) within 105 the date falling 90 days after the end of each the relevant fiscal year (or, if required to be filed with being the SEC sooner, then concurrently with such filingapplicable “Alternative Longstop”), its consolidated an audited, reviewed or unaudited, as applicable, balance sheets sheet and related statements statement of incomeshareholders’ equity, stockholders' equity and cash flows as of the end last day of and for such year, setting forth in each case in comparative form the figures and an audited, reviewed or unaudited, as applicable, income statement and statement of cash flows for the previous fiscal yearperiod then ended, all certified by one of its Financial Officers as presenting fairly in all material respects along with the results of operations of notes to the Company on a consolidated basis financial statements, prepared in accordance with IFRS or US GAAP consistently applied, subject to normal year-end audit adjustments and the absence of footnotes(as applicable);
(cii) as soon as practicable, and in any event within 60 10 business days of the same becoming available after the end of each of the first three fiscal quarters of each the Company (the date falling 45 days after the end of the relevant fiscal year (or, if required to be filed with quarter being the SEC sooner, then concurrently with such filingapplicable “Alternative Longstop”), its Form 10-Q containing its consolidated an unaudited income statement, an unaudited cash flow statement, an unaudited balance sheet and related statements a statement of incomeshareholders’ equity, stockholders' equity year to date and cash flows as of the end of and for such fiscal quarter and the then elapsed portion of the fiscal year, setting forth in each case in comparative form the figures for the corresponding period or periods of (or, in the case of the balance sheet, as of the end of) the previous fiscal yearquarter;
(diii) within 60 twenty business days after the end of each a fiscal quarter of the first three fiscal quarters of each fiscal yearCompany, its consolidated balance sheet and related statements of income, stockholders' equity and cash flows a capitalization table for the Company as of the end of such fiscal quarter that (A) provides detail as to each class of shares of the Company and each shareholder’s equity and voting interest (x) in each class of shares and (y) in the aggregate (in the case of each of clauses (x) and (y), calculated based on shares issued and outstanding and fully diluted shares) and (B) includes exercise prices for options or other equity awards issued during such fiscal quarter and price per share information for any other equity transactions entered into by the then elapsed portion Company, including issuances, sales, repurchases and redemptions, during such fiscal quarter; and (iv) reasonably promptly following the Holder’s request (which may not be made more frequently than once a fiscal quarter), any information reasonably requested by the Holder, and reasonably available to the Company without undue burden or expense, necessary to determine that the Company would not, after the exercise of this Warrant, be a “controlled foreign corporation” as such term is defined in Section 957(a) of the fiscal yearCode and that the Company is not a “passive foreign investment company” as such term is defined in Section 1297 of the Code; provided, setting forth in each case in comparative form that the figures for the corresponding period or periods of (orCompany shall not be required to disclose information which it reasonably determines to be confidential, provided in the case of (i) and (ii) that if the balance sheet, as of relevant statement is not provided by the end of) the budget and previous fiscal year, all certified by one of its Financial Officers as presenting fairly in all material respects the results of operations of applicable Alternative Longstop the Company on a consolidated basis in accordance with GAAP consistently applied, subject shall (at no out-of-pocket cost to normal year-end audit adjustments and the absence of footnotes;
(e) within 30 days after the end of each month which is neither a fiscal year end nor a fiscal quarter end, its consolidated balance sheet and related statements of income, stockholders' equity and cash flows as of the end of and for such month and the then elapsed portion of the fiscal year, setting forth in each case in comparative form the figures for the corresponding period or periods of (or, in the case of the balance sheet, as of the end of) the previous fiscal year, all certified by one of its Financial Officers as presenting fairly in all material respects the results of operations of the Company on a consolidated basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments and the absence of footnotes;
(f) by no later than December 15 of each fiscal year, a budget and business plan for the immediately succeeding fiscal year in the form approved by the Company's board of directors), in formif the Holder so requests, scope use its reasonable efforts to collate and detail satisfactory provide to the Purchasers and on a quarterly basis for each fiscal quarter of Holder such succeeding fiscal year;
(g) promptly after the same become publicly available, (other information relating to the extent not available through electronic means) copies of all periodic and other reports, proxy statements and other materials filed by the Company or any Subsidiary with of its direct or indirect subsidiaries as is available and reasonably required and requested to permit the SECHolder or any of its affiliates to prepare or file any tax return or to complete their ordinary course internal audit processes.
(b) The Company shall:
(i) On or before February 15 of each calendar year, or any Governmental Agency succeeding to any or all of the functions of the SECas soon as reasonably practicable thereafter, or with any national securities exchange, or distributed by the Company to its stockholders generally, as the case may be;
(h) promptly after the same are delivered to the members of the Board of Directors, copies of all business plans and provide such other financial plans information relating to the Company and/or or any of its Subsidiariesdirect or indirect subsidiaries as reasonably requested by the Holder and as may be reasonably required for the Holder or any of its affiliates to prepare or file any tax return or to prepare such filings with respect to the Company or any of its affiliates as may be required by any tax authority to the extent such information is reasonably available to the Company without undue burden or expense;
(ii) upon the Holder’s reasonable prior written request, grant the Holder and its affiliates reasonable access to the books, records and employees of the Company during normal business hours of the Company in order to obtain information legally required to file all tax returns required to be filed by the Holder or any of its affiliates; provided, that the Company shall not be required to disclose information which it reasonably determines to be confidential; and
(iiii) promptly following reasonably cooperate (at no out-of-pocket cost to the Company) in preparing for any request thereforaudit of, such other information or dispute with a tax authority regarding any tax return of, the operations, business affairs and financial condition Holder or any of its affiliates relating to the Company or any Subsidiaryof its direct or indirect subsidiaries.
(c) This Section 5.3 shall terminate upon an IPO. The Holder and its affiliates will only use the information provided under this Section 5.3 for their own bona fide (and ordinary course) tax, or compliance with the terms of the this Agreement or any Related Document, as the Purchasers may reasonably requestaccounting and incident internal legal purposes.
Appears in 2 contracts
Sources: Warrant Agreement (IBEX LTD), Warrant Agreement (IBEX LTD)
Information Rights. The Company shall furnish Following the Closing and so long as the Fall-Away Event has not occurred, in order to each Purchaser who holds at least 5% facilitate (x) the Investor’s compliance with legal and regulatory requirements applicable to the beneficial ownership by the Investor of equity securities of the Common Stock on a fully diluted as if converted basis Company and (and regardless y) the Investor’s oversight of its investment in the Company, the Company agrees to each of GE and Midwest if such Purchaser holds at least a majority of provide the Series B Shares such Purchaser purchased hereunder):Investor with the following:
(a) within 105 ninety (90) days after the end of each fiscal year of the Company, (ori) an audited, if required to be filed with the SEC sooner, then concurrently with such filing), its Form 10-K containing its audited consolidated balance sheet of the Company and related statements of income, stockholders' equity and cash flows its Subsidiaries as of the end of and for such year, setting forth in each case in comparative form the figures for the previous fiscal year, all reported on by PriceWaterhouseCoopers or other independent public accountants of recognized national standing (without any qualification or exception as to the scope of such auditii) to the effect that such an audited, consolidated financial statements present fairly in all material respects the financial condition and results of operations income statement of the Company and its Subsidiaries for such fiscal year and (iii) an audited, consolidated statement of cash flows of the Company and its Subsidiaries for such fiscal year; provided that this requirement shall be deemed to have been satisfied when the Company files its annual report on a consolidated basis in accordance Form 10-K for the applicable fiscal year with GAAP consistently appliedthe Securities and Exchange Commission (the “SEC”) (regardless of whether such filing occurs within ninety (90) days after the end of such fiscal year);
(b) within 105 days after the end of each fiscal year forty-five (or, if required to be filed with the SEC sooner, then concurrently with such filing), its consolidated balance sheets and related statements of income, stockholders' equity and cash flows as of the end of and for such year, setting forth in each case in comparative form the figures for the previous fiscal year, all certified by one of its Financial Officers as presenting fairly in all material respects the results of operations of the Company on a consolidated basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments and the absence of footnotes;
(c45) within 60 days after the end of each of the first three fiscal (3) quarters of each fiscal year of the Company, (ori) an unaudited, if required to be filed with the SEC sooner, then concurrently with such filing), its Form 10-Q containing its consolidated balance sheet of the Company and related statements of income, stockholders' equity and cash flows its Subsidiaries as of the end of such fiscal quarter, (ii) an unaudited, consolidated income statement of the Company and its Subsidiaries for such fiscal quarter and the then elapsed portion (iii) an unaudited, consolidated statement of cash flows of the Company and its Subsidiaries for such fiscal year, setting forth in each case in comparative form quarter; provided that this requirement shall be deemed to have been satisfied when the figures Company files its quarterly report on Form 10-Q for the corresponding period or periods applicable fiscal quarter with the SEC (regardless of whether such filing occurs within forty-five (or, in the case of the balance sheet, as of the end of45) the previous fiscal year;
(d) within 60 days after the end of each of the first three fiscal quarters of each fiscal year, its consolidated balance sheet and related statements of income, stockholders' equity and cash flows as of the end of and for such fiscal quarter and the then elapsed portion of the fiscal year, setting forth in each case in comparative form the figures for the corresponding period or periods of (or, in the case of the balance sheet, as of the end of) the budget and previous fiscal year, all certified by one of its Financial Officers as presenting fairly in all material respects the results of operations of the Company on a consolidated basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments and the absence of footnotes;
(e) within 30 days after the end of each month which is neither a fiscal year end nor a fiscal quarter end, its consolidated balance sheet and related statements of income, stockholders' equity and cash flows as of the end of and for such month and the then elapsed portion of the fiscal year, setting forth in each case in comparative form the figures for the corresponding period or periods of (or, in the case of the balance sheet, as of the end of) the previous fiscal year, all certified by one of its Financial Officers as presenting fairly in all material respects the results of operations of the Company on a consolidated basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments and the absence of footnotes;
(f) by no later than December 15 of each fiscal year, a budget and business plan for the immediately succeeding fiscal year in the form approved by the Company's board of directors, in form, scope and detail satisfactory to the Purchasers and on a quarterly basis for each fiscal quarter of such succeeding fiscal year;
(g) promptly after the same become publicly available, (to the extent not available through electronic means) copies of all periodic and other reports, proxy statements and other materials filed by the Company or any Subsidiary with the SEC, or any Governmental Agency succeeding to any or all of the functions of the SEC, or with any national securities exchange, or distributed by the Company to its stockholders generally, as the case may be;
(h) promptly after the same are delivered to the members of the Board of Directors, copies of all business plans and other financial plans relating to the Company and/or its Subsidiariesquarter); and
(ic) promptly following any request thereforreasonable access, such other information regarding to the operationsextent reasonably requested by the Investor, business affairs to the offices and financial condition the properties of the Company or any Subsidiaryand its Subsidiaries, or compliance including its and their books and records, and to discuss its and their affairs, finances and accounts with the terms of the this Agreement or any Related Documentits and their officers, all upon reasonable notice and at such reasonable times and as often as the Purchasers Investor may reasonably request; provided that any investigation pursuant to this Section 8 shall be conducted in a manner as not to interfere unreasonably with the conduct of the business of the Company and its Subsidiaries; provided that the Company shall not be obligated to provide such access or materials if the Company determines, in its reasonable judgment, that doing so would reasonably be expected to (i) violate applicable Law or an applicable order, (ii) jeopardize the protection of an attorney-client privilege, attorney work product protection or other legal privilege (provided, however, that the Company shall use reasonable efforts to provide alternative, redacted or substitute documents or information in a manner that would not result in the loss of the ability to assert attorney-client privilege, attorney work product protection or other legal privileges), or (iii) expose the Company to liability for disclosure of personal information; provided, further, that the Parties shall use their commercially reasonable efforts to disclose such information in a manner that would not violate the foregoing. In addition, notwithstanding anything to the contrary contained herein, neither the Company nor any of its Subsidiaries will be required to provide any information or material that relate to, contain or reflect any analyses, studies, notes, memoranda and other information related to or prepared in connection with any Transaction Document or the transactions contemplated thereby or any matters relating thereto or any transactions with or matters relating to the Investor.
Appears in 2 contracts
Sources: Investor Rights Agreement (ADT Inc.), Securities Purchase Agreement (ADT Inc.)
Information Rights. The Company shall furnish (a) Following the Closing Date and so long as the Stockholder continues to each Purchaser who holds beneficially own a number of shares of Preferred Stock representing at least 5% of the outstanding shares of Common Stock (on a fully diluted as if an as-converted basis (basis), the Company agrees to provide each Stockholder and regardless to each of GE and Midwest if such Purchaser holds at least a majority of its Permitted Transferees with the Series B Shares such Purchaser purchased hereunder):following:
(ai) within 105 90 days after the end of each fiscal year of the Company, (orA) an audited, if required to be filed with the SEC sooner, then concurrently with such filing), its Form 10-K containing its audited consolidated balance sheet of the Company and related statements of income, stockholders' equity and cash flows its Subsidiaries as of the end of and for such year, setting forth in each case in comparative form the figures for the previous fiscal year, all reported on by PriceWaterhouseCoopers or other independent public accountants of recognized national standing (without any qualification or exception as to the scope of such auditB) to the effect that such an audited, consolidated financial statements present fairly in all material respects the financial condition and results of operations income statement of the Company and its Subsidiaries for such fiscal year and (C) an audited, consolidated statement of cash flows of the Company and its Subsidiaries for such fiscal year; provided that this requirement shall be deemed to have been satisfied if on a consolidated basis in accordance or prior to such date the Company files its annual report on Form 10-K for the applicable fiscal year with GAAP consistently appliedthe SEC;
(bii) within 105 days after the end of each fiscal year (or, if required to be filed with the SEC sooner, then concurrently with such filing), its consolidated balance sheets and related statements of income, stockholders' equity and cash flows as of the end of and for such year, setting forth in each case in comparative form the figures for the previous fiscal year, all certified by one of its Financial Officers as presenting fairly in all material respects the results of operations of the Company on a consolidated basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments and the absence of footnotes;
(c) within 60 45 days after the end of each of the first three fiscal quarters of each fiscal year of the Company, (orA) an unaudited, if required to be filed with the SEC sooner, then concurrently with such filing), its Form 10-Q containing its consolidated balance sheet of the Company and related statements of income, stockholders' equity and cash flows its Subsidiaries as of the end of such fiscal quarter, (B) an unaudited, consolidated income statement of the Company and its Subsidiaries for such fiscal quarter and the then elapsed portion (C) an unaudited, consolidated statement of cash flows of the fiscal year, setting forth in each case in comparative form the figures for the corresponding period or periods of (or, in the case of the balance sheet, as of the end of) the previous fiscal year;
(d) within 60 days after the end of each of the first three fiscal quarters of each fiscal year, Company and its consolidated balance sheet and related statements of income, stockholders' equity and cash flows as of the end of and Subsidiaries for such fiscal quarter and quarter; provided that this requirement shall be deemed to have been satisfied if on or prior to such date the then elapsed portion of the fiscal year, setting forth in each case in comparative form the figures Company files its quarterly report on Form 10-Q for the corresponding period or periods of (or, in the case of the balance sheet, as of the end of) the budget and previous fiscal year, all certified by one of its Financial Officers as presenting fairly in all material respects the results of operations of the Company on a consolidated basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments and the absence of footnotes;
(e) within 30 days after the end of each month which is neither a fiscal year end nor a applicable fiscal quarter end, its consolidated balance sheet and related statements of income, stockholders' equity and cash flows as of the end of and for such month and the then elapsed portion of the fiscal year, setting forth in each case in comparative form the figures for the corresponding period or periods of (or, in the case of the balance sheet, as of the end of) the previous fiscal year, all certified by one of its Financial Officers as presenting fairly in all material respects the results of operations of the Company on a consolidated basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments and the absence of footnotes;
(f) by no later than December 15 of each fiscal year, a budget and business plan for the immediately succeeding fiscal year in the form approved by the Company's board of directors, in form, scope and detail satisfactory to the Purchasers and on a quarterly basis for each fiscal quarter of such succeeding fiscal year;
(g) promptly after the same become publicly available, (to the extent not available through electronic means) copies of all periodic and other reports, proxy statements and other materials filed by the Company or any Subsidiary with the SEC, or any Governmental Agency succeeding to any or all of the functions of the SEC, or with any national securities exchange, or distributed by the Company to its stockholders generally, as the case may be;
(h) promptly after the same are delivered to the members of the Board of Directors, copies of all business plans and other financial plans relating to the Company and/or its Subsidiaries; and
(iiii) promptly following any request thereforreasonable access, such other information regarding to the operationsextent reasonably requested by a Stockholder, business affairs to the offices and financial condition the properties of the Company or any Subsidiaryand its Subsidiaries, or compliance including its and their books and records, and to discuss its and their affairs, finances and accounts with the terms of the this Agreement or any Related Documentits and their officers, all upon reasonable notice and at such reasonable times and as often as the Purchasers Stockholder may reasonably request; provided that any investigation pursuant to this Section 6.15 shall be conducted in a manner as not to interfere unreasonably with the conduct of the business of the Company and its Subsidiaries;
(b) Notwithstanding anything to the contrary in the foregoing, the Company shall not be obligated to provide such access or materials if the Company determines, in its reasonable judgment, that doing so would reasonably be expected to (i) result in the disclosure of trade secrets or competitively sensitive information to third parties, (ii) violate applicable law, an applicable order or a contract or obligation of confidentiality owing to a third party, (iii) jeopardize the protection of an attorney-client privilege, attorney work product protection or other legal privilege (provided, however, that the Company shall use reasonable efforts to provide alternative, redacted or substitute documents or information in a manner that would not result in the loss of the ability to assert attorney-client privilege, attorney work product protection or other legal privileges), or (iv) expose the Company to risk of liability for disclosure of personal information; provided that the Company shall use reasonable best efforts to disclose such information in a manner that would not violate the foregoing.
Appears in 2 contracts
Sources: Stockholders Agreement (Comscore, Inc.), Stockholders Agreement (Comscore, Inc.)
Information Rights. The For so long as the Purchaser continues to hold at least one Preferred Share, the Company shall furnish deliver to each Purchaser who holds at least 5% of the Common Stock on a fully diluted as if converted basis (and regardless to each of GE and Midwest if such Purchaser holds at least a majority of the Series B Shares such Purchaser purchased hereunder):Purchaser:
(a) as soon as available but in any event within 105 forty-five (45) days after the end of each quarterly accounting period in each fiscal year, (i) unaudited consolidated statements of income and cash flows of the Company and its Subsidiaries for such quarterly period and (ii) unaudited consolidated balance sheets of the Company and its Subsidiaries as of the end of such quarterly period, setting forth in each case comparisons to the Company's annual budget and to the corresponding period in the preceding fiscal year, and all such statements shall be prepared in accordance with GAAP (except as to the absence of notes and comparative balances with respect to unaudited financial statements);
(b) within one hundred twenty (120) days after the end of each fiscal year (oryear, if required to be filed with the SEC sooner, then concurrently with such filing), its Form 10-K containing its audited consolidated balance sheet and related statements of income, stockholders' equity income and cash flows of the Company for such fiscal year, and consolidated balance sheets of the Company and its Subsidiaries as of the end of and for such year, setting forth in each case in comparative form the figures for the previous fiscal year, all reported on by PriceWaterhouseCoopers or other independent public accountants of recognized national standing (without any qualification or exception as to the scope of such audit) to the effect that such consolidated financial statements present fairly in all material respects the financial condition and results of operations of the Company and its consolidated Subsidiaries on a consolidated basis in accordance with GAAP consistently applied;
(b) within 105 days after the end of each fiscal year (or, if required to be filed with the SEC sooner, then concurrently with such filing), its consolidated balance sheets and related statements of income, stockholders' equity and cash flows as of the end of and for such year, setting forth in each case in comparative form the figures for the previous fiscal year, all certified by one of its Financial Officers as presenting fairly in all material respects the results of operations of the Company on a consolidated basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments and the absence of footnotes;
(c) within 60 days after the end of each of the first three fiscal quarters of each fiscal year (or, if required to be filed with the SEC sooner, then concurrently with such filing), its Form 10-Q containing its consolidated balance sheet and related statements of income, stockholders' equity and cash flows as of the end of and for such fiscal quarter and the then elapsed portion of the fiscal year, setting forth in each case in comparative form comparisons to the figures for the corresponding period or periods of (or, in the case of the balance sheet, as of the end of) the previous fiscal year;
(d) within 60 days after the end of each of the first three fiscal quarters of each fiscal year, its consolidated balance sheet and related statements of income, stockholders' equity and cash flows as of the end of and for such fiscal quarter and the then elapsed portion of the fiscal year, setting forth in each case in comparative form the figures for the corresponding period or periods of (or, in the case of the balance sheet, as of the end of) the Company's annual budget and previous to the preceding fiscal year, all prepared in accordance with GAAP certified by one of its Financial Officers as presenting fairly in all material respects the results of operations of the Company on "Big Five" independent certified public accountant firms and accompanied by a consolidated basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments and the absence of footnotes;
(e) within 30 days after the end of each month which is neither a fiscal year end nor a fiscal quarter end, its consolidated balance sheet and related statements of income, stockholders' equity and cash flows as of the end of and for such month and the then elapsed portion of the fiscal year, setting forth in each case in comparative form the figures for the corresponding period or periods of (or, in the case of the balance sheet, as of the end of) the previous fiscal year, all certified by one of its Financial Officers as presenting fairly in all material respects the results of operations of the Company on a consolidated basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments and the absence of footnotes;
(f) by no later than December 15 of each fiscal year, a budget and business plan for the immediately succeeding fiscal year in the form approved by the Company's board of directors, in form, scope and detail satisfactory to the Purchasers and on a quarterly basis for each fiscal quarter copy of such succeeding fiscal year;
(g) promptly after the same become publicly available, (firm's annual management letter to the extent not available through electronic means) copies of all periodic and other reports, proxy statements and other materials filed by the Company or any Subsidiary with the SEC, or any Governmental Agency succeeding to any or all of the functions of the SEC, or with any national securities exchange, or distributed by the Company to its stockholders generally, as the case may be;
(h) promptly after the same are delivered to the members of the Board of Directors, copies of all business plans and other financial plans relating to the Company and/or its Subsidiaries; and;
(ic) promptly following upon receipt thereof, any request thereforadditional reports, such management letters or other written information regarding concerning significant aspects of the operations, business operations or financial affairs and financial condition of the Company and its Subsidiaries prepared for senior management or any Subsidiary, or compliance with the terms Board of the this Agreement or any Related Document, as the Purchasers may reasonably request.Directors (and not otherwise contained in other materials provided hereunder);
Appears in 2 contracts
Sources: Subscription Agreement (Dynegy Inc /Il/), Subscription Agreement (Enron Corp/Or/)
Information Rights. (a) The Company shall will furnish to each Purchaser who holds Stockholder owning at least 5% two and a half percent (2.5%) of the outstanding Common Stock on the following information (for the purposes of this Section 13, shares of Common Stock held any member of a fully diluted as if converted basis (and regardless to each Beneficiary Group that is a Stockholder shall be aggregated together with the shares of GE and Midwest if such Purchaser holds at least a majority capital stock of the Series B Shares Company held by all members of such Purchaser purchased hereunderBeneficiary Group and their Affiliates for the purposes of determining availability of rights and application of obligations of such Stockholder under this Section and, following December 31, 2011, only one copy of any information to be provided under this Section 13 shall be delivered for the benefit of each Beneficiary Group as noted on Annex A attached hereto):
(ai) within 105 As soon as available, but no sooner than ninety (90) days after following completion of the fiscal year, the audited consolidated balance sheet of the Company and its Subsidiaries as at the end of each such fiscal year (or, if required to be filed with and the SEC sooner, then concurrently with such filing), its Form 10-K containing its audited consolidated balance sheet and related statements of income, stockholders' equity and cash flows as and changes in stockholders’ equity for such year of the end of Company and for such yearthe Subsidiaries, setting forth in each case in comparative form the figures for the previous next preceding fiscal year, all reported on accompanied by PriceWaterhouseCoopers or other the report of independent certified public accountants of recognized national standing (without any qualification or exception as to the scope of such audit) standing, to the effect that that, except as set forth therein, such consolidated financial statements have been prepared in accordance with United States generally accepted accounting principles (“GAAP”) applied on a basis consistent with prior years and fairly present fairly in all material respects the financial condition and results of operations of the Company and its the Subsidiaries as of the dates thereof and the results of their operations and changes in their cash flows and stockholders’ equity for the periods covered thereby.
(ii) As soon as available, but no sooner than forty-five (45) days following completion of the fiscal quarter (other than the fourth fiscal quarter), the consolidated balance sheet of the Company and the Subsidiaries on a as at the end of such quarter and the consolidated basis statements of income, cash flows and changes in stockholders’ equity for such quarter and the portion of the fiscal year then ended of the Company and the Subsidiaries, setting forth in each case the figures for the corresponding periods of the previous fiscal year in comparative form, all in reasonable detail and all prepared in accordance with GAAP consistently applied;.
(b) within 105 With respect to the MDP Stockholders and, at the request of the MDP Stockholders, each Affiliate thereof that indirectly has an interest in the Company, in each case that is intended to qualify as a “venture capital operating company” as defined in the Plan Asset Regulations (each, a “VCOC Member” and collectively, the “VCOC Members”), for so long as the VCOC Members, directly or through one or more conduit Subsidiaries, continue to hold any Shares, the Company shall, with respect to the VCOC Members:
(i) To the extent not otherwise provided in this Agreement, provide the designated representative of the VCOC Members (the “Designated Representative”) with:
a. the right to visit and inspect any of the offices and properties of the Company and its Subsidiaries and inspect and copy the books and records of the Company and its Subsidiaries, as the Designated Representative shall reasonably request;
b. to the extent the Company is required by law or pursuant to the terms of any outstanding indebtedness of the Company to prepare such reports, any annual reports, quarterly reports and other periodic reports pursuant to Section 13 or 15(d) of the Exchange Act, actually prepared by the Company as soon as available; and
c. copies of all materials provided to the Board, provided, that the Company shall be entitled to exclude portions of such materials to the extent providing such portions would be reasonably likely to result in the waiver of attorney-client privilege.
(ii) Make appropriate officers of the Company available periodically and at such times as reasonably requested by the Designated Representative for consultation with the Designated Representative with respect to matters relating to the business and affairs of the Company and its Subsidiaries, including significant changes in management personnel and compensation of employees, introduction of new lines of business, important acquisitions or dispositions of plants and equipment, significant research and development programs, the purchasing or selling of important trademarks, licenses or concessions or the proposed commencement of compromise of significant litigation;
(iii) Give the VCOC Members collectively the right to designate one non-voting board observer (who may also be the Designated Representative) who will be entitled to attend all meetings of the Board, participate in all deliberations of the Board and receive copies of all materials provided to the Board, provided that such observer shall have no voting rights with respect to actions taken or elected not to be taken by the Board, provided, further, that the Company shall be entitled to exclude such observer from such portions of a Board meeting to the extent such observer’s presence would be reasonably likely to result in the waiver of attorney-client privilege, attorney-work-product doctrine protections, trade secrets, or any other legal privileges, protections, or rights of the Company and provided, further, that prior to attending or participating in any meeting of the Board or receiving any materials provided to the Board, the designated non-voting board observer shall be required to execute an agreement with the Company regarding his or her preservation of the Company’s confidential information;
(iv) To the extent consistent with applicable law (and with respect to events which require public disclosure, only following the Company’s public disclosure thereof through applicable securities law filings or otherwise), inform the Designated Representative in advance with respect to any significant corporate actions, including extraordinary dividends, mergers, acquisitions or dispositions of assets, issuances of significant amounts of debt or equity and material amendments to the organizational documents of the Company, and to provide the VCOC Members or their designated representative with the right to consult with the Company with respect to such actions;
(v) Provide the VCOC Members with such other rights of consultation which the VCOC Members’ counsel, along with the Company’s counsel determine to be reasonably necessary under applicable legal authorities promulgated after the Effective Date to qualify its investment in the Company as a “venture capital investment” for purposes of the Plan Assets Regulation; and
(vi) To consider the recommendations of the Designated Representative in connection with the matters on which it is consulted as described above, recognizing that the ultimate discretion with respect to all such matters shall be retained by the Company.
(c) Within 90 days after the end of each fiscal year (oryear, if required the Company shall cause to be filed with the SEC sooner, then concurrently with delivered to each Stockholder (so long as such filing), its consolidated balance sheets and related statements of income, stockholders' equity and cash flows as of the end of and for Stockholder owned any Shares during such prior fiscal year, setting forth in each case in comparative form the figures ) all information necessary for the previous fiscal year, all certified by one of its Financial Officers as presenting fairly in all material respects the results of operations of the Company on a consolidated basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments and the absence of footnotes;
(c) within 60 days after the end of each of the first three fiscal quarters of each fiscal year (or, if required to be filed with the SEC sooner, then concurrently with such filing), its Form 10-Q containing its consolidated balance sheet and related statements of income, stockholders' equity and cash flows as of the end of and for such fiscal quarter and the then elapsed portion of the fiscal year, setting forth in each case in comparative form the figures for the corresponding period or periods of (or, in the case of the balance sheet, as of the end of) the previous fiscal year;
(d) within 60 days after the end of each of the first three fiscal quarters of each fiscal year, its consolidated balance sheet and related statements of income, stockholders' equity and cash flows as of the end of and for such fiscal quarter and the then elapsed portion of the fiscal year, setting forth in each case in comparative form the figures for the corresponding period or periods of (or, in the case of the balance sheet, as of the end of) the budget and previous fiscal year, all certified by one of its Financial Officers as presenting fairly in all material respects the results of operations of the Company on a consolidated basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments and the absence of footnotes;
(e) within 30 days after the end of each month which is neither a fiscal year end nor a fiscal quarter end, its consolidated balance sheet and related statements of income, stockholders' equity and cash flows as of the end of and for such month and the then elapsed portion of the fiscal year, setting forth in each case in comparative form the figures for the corresponding period or periods of (or, in the case of the balance sheet, as of the end of) the previous fiscal year, all certified by one of its Financial Officers as presenting fairly in all material respects the results of operations of the Company on a consolidated basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments and the absence of footnotes;
(f) by no later than December 15 of each fiscal year, a budget and business plan for the immediately succeeding fiscal year in the form approved by the Company's board of directors, in form, scope and detail satisfactory to the Purchasers and on a quarterly basis for each fiscal quarter preparation of such succeeding fiscal year;
Stockholder’s income tax returns (g) promptly after the same become publicly availablewhether federal, (to the extent not available through electronic means) copies of all periodic and other reports, proxy statements and other materials filed by the Company state or any Subsidiary with the SEC, or any Governmental Agency succeeding to any or all of the functions of the SEC, or with any national securities exchange, or distributed by the Company to its stockholders generally, as the case may be;
(h) promptly after the same are delivered to the members of the Board of Directors, copies of all business plans and other financial plans relating to the Company and/or its Subsidiaries; and
(i) promptly following any request therefor, such other information regarding the operations, business affairs and financial condition of the Company or any Subsidiary, or compliance with the terms of the this Agreement or any Related Document, as the Purchasers may reasonably requestforeign).
Appears in 2 contracts
Sources: Stockholders Agreement (Visionary Systems, Inc.), Non u.s. Stockholders’ Agreement (Visionary Systems, Inc.)
Information Rights. The Company Each of the Group Companies covenants and agrees that, commencing on the date of this Agreement, for so long as any Preferred Shares are outstanding, the Group Companies shall furnish deliver, to each Purchaser who Preferred Shareholder that holds at least 5% twenty-five percent (25%) of the Common Stock on a fully diluted as if converted basis (and regardless Preferred Shares originally issued by the Company to each of GE and Midwest if such Purchaser holds at least a majority of the Series B Shares such Purchaser purchased hereunder):Preferred Shareholder:
(ai) within 105 one-hundred twenty (120) days after the end of each fiscal year (orof the Company, if required to be filed with a consolidated income statement and statement of cash flows for the SEC sooner, then concurrently with Company for such filing), its Form 10-K containing its audited fiscal year and a consolidated balance sheet and related statements of income, stockholders' equity and cash flows for the Company as of the end of and for such year, setting forth in each case in comparative form the figures for the previous fiscal year, all reported on audited and certified by PriceWaterhouseCoopers or other a firm of national standing of independent certified public accountants approved by the Company’s Board of recognized national standing Directors (without any qualification or exception as to “Board”) including at least one (1) Investor Director and at least one (1) Junior Preferred Director, and a management report including a comparison of the scope financial results of such audit) to fiscal year with the effect that such consolidated financial statements present fairly in corresponding annual budget, all material respects the financial condition and results of operations of the Company and its consolidated Subsidiaries on a consolidated basis prepared in accordance with GAAP the International Financial Reporting Standards or other internationally accepted accounting standards acceptable to the Board, including the approval of at least one (1) Investor Director and at least one (1) Junior Preferred Director (the “Accounting Standards”) consistently appliedapplied throughout the period;
(bii) within 105 days after the end of each fiscal year forty-five (or, if required to be filed with the SEC sooner, then concurrently with such filing), its consolidated balance sheets and related statements of income, stockholders' equity and cash flows as of the end of and for such year, setting forth in each case in comparative form the figures for the previous fiscal year, all certified by one of its Financial Officers as presenting fairly in all material respects the results of operations of the Company on a consolidated basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments and the absence of footnotes;
(c45) within 60 days after the end of each of the first three fiscal quarters quarters, a consolidated unaudited income statement and statement of each fiscal year (or, if required to be filed with the SEC sooner, then concurrently with cash flows for such filing), its Form 10-Q containing its quarter and a consolidated balance sheet and related statements of income, stockholders' equity and cash flows for the Company as of the end of such quarter, and for such fiscal quarter and the then elapsed portion a comparison of the fiscal financial results of such quarterly with the corresponding quarterly budget, all prepared in accordance with the Accounting Standards consistently applied throughout the period (except for customary year, setting forth in each case in comparative form the figures -end adjustments and except for the corresponding period absence of notes), and certified by the chief executive officer or periods of (or, in the case chief financial officer of the balance sheet, as of the end of) the previous fiscal yearCompany;
(diii) within 60 thirty (30) days after the end of each month, a consolidated unaudited income statement and statement of the first three fiscal quarters of each fiscal year, its cash flows for such month and a consolidated balance sheet and related statements of income, stockholders' equity and cash flows for the Company as of the end of such month, and for such fiscal quarter and the then elapsed portion a comparison of the fiscal year, setting forth in each case in comparative form the figures for financial results of such month with the corresponding period or periods of (or, in the case of the balance sheet, as of the end of) the budget and previous fiscal yearmonthly budget, all certified by one of its Financial Officers as presenting fairly in all material respects the results of operations of the Company on a consolidated basis prepared in accordance with GAAP the Accounting Standards consistently applied, subject to normal applied throughout the period (except for customary year-end audit adjustments and except for the absence of footnotesnotes), and certified by the chief executive officer or chief financial officer of the Company;
(eiv) within 30 days after the end of each month which is neither a fiscal year end nor a fiscal quarter end, its consolidated balance sheet and related statements of income, stockholders' equity and cash flows as of the end of and for such month and the then elapsed portion of the fiscal year, setting forth in each case in comparative form the figures for the corresponding period or periods of (or, in the case of the balance sheet, as of the end of) the previous fiscal year, all certified by one of its Financial Officers as presenting fairly in all material respects the results of operations of the Company on a consolidated basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments and the absence of footnotes;
(f) by no later than December 15 of each fiscal year, a an annual budget and business plan for within thirty (30) days prior to the immediately succeeding beginning of each fiscal year in the a form approved by the Company's board of directors, in form, scope and detail satisfactory acceptable to the Purchasers Board, including at least one (1) Investor Director and on a quarterly basis for each fiscal quarter of such succeeding fiscal yearat least one (1) Junior Preferred Director ;
(g) promptly after the same become publicly available, (to the extent not available through electronic meansv) copies of all periodic documents or other information sent to all other Preferred Shareholders and other reports, proxy statements and other materials any reports publicly filed by the any Group Company or any Subsidiary with the SEC, or any Governmental Agency succeeding to any or all of the functions of the SEC, or with any national relevant securities exchange, regulatory authority or distributed governmental agency, no later than five (5) days after such documents or information are filed by the Company to its stockholders generally, as the case may besuch Group Company;
(hvi) promptly after upon the same are delivered to the members of the Board of Directors, copies of all business plans and other financial plans relating to the Company and/or its Subsidiaries; and
(i) promptly following written request by any request thereforInvestor, such other information regarding as such Investor shall reasonably request from time to time, including, without limitation, the operations, business affairs and financial condition most recent version of the Company investment agreements, documents relating to subsequent financing or any Subsidiarycompany management, and a copy of the official articles of association or compliance other constitutional documents of the Group Companies (the above rights, collectively, the “Information Rights”). All financial statements to be provided to such Preferred Shareholder shall be in English and shall include an income statement, a balance sheet, a cash flow statement for the relevant period as well as for the fiscal year to-date and the analysis comparing the actual fiscal results to the annual budget and shall be prepared in conformance with the terms of the this Agreement or any Related Document, as the Purchasers may reasonably requestAccounting Standards.
Appears in 2 contracts
Sources: Shareholder Agreement, Shareholders Agreement (InnoLight Technology Corp)
Information Rights. The Company shall furnish Following the Initial Closing and so long as the 25% Beneficial Ownership Requirement is satisfied, in order to each Purchaser who holds at least 5% facilitate (i) the Investor Parties’ compliance with legal and regulatory requirements applicable to the beneficial ownership by the Investor Parties and its Affiliates of equity securities of the Common Stock on a fully diluted as if converted basis Company and (and regardless ii) the Investor Representative’s oversight of the Investor Parties’ investment in the Company, the Company agrees to provide each of GE the Investor Parties and Midwest if such Purchaser holds at least a majority of the Series B Shares such Purchaser purchased hereunder):Investor Representative with the following:
(a) within 105 ninety (90) days after the end of each fiscal year of the Company, (orA) an audited, if required to be filed with the SEC sooner, then concurrently with such filing), its Form 10-K containing its audited consolidated balance sheet of the Company and related statements of income, stockholders' equity and cash flows its Subsidiaries as of the end of and for such year, setting forth in each case in comparative form the figures for the previous fiscal year, all reported on by PriceWaterhouseCoopers or other independent public accountants (B) an audited, consolidated statements of recognized national standing (without any qualification or exception as to the scope of such audit) to the effect that such consolidated financial statements present fairly in all material respects the financial condition and results of operations income of the Company and its Subsidiaries for such fiscal year and (C) an audited, consolidated statements of cash flows of the Company and its Subsidiaries for such fiscal year; provided that this requirement shall be deemed to have been satisfied if on a consolidated basis in accordance or prior to such date the Company files its annual report on Form 10-K for the applicable fiscal year with GAAP consistently appliedthe SEC;
(b) within 105 days after the end of each fiscal year forty-five (or, if required to be filed with the SEC sooner, then concurrently with such filing), its consolidated balance sheets and related statements of income, stockholders' equity and cash flows as of the end of and for such year, setting forth in each case in comparative form the figures for the previous fiscal year, all certified by one of its Financial Officers as presenting fairly in all material respects the results of operations of the Company on a consolidated basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments and the absence of footnotes;
(c45) within 60 days after the end of each of the first three fiscal quarters of each fiscal year of the Company, (orA) an unaudited, if required to be filed with the SEC sooner, then concurrently with such filing), its Form 10-Q containing its consolidated balance sheet of the Company and related statements of income, stockholders' equity and cash flows its Subsidiaries as of the end of such fiscal quarter, (B) an unaudited, consolidated statements of income of the Company and its Subsidiaries for such fiscal quarter and the then elapsed portion (C) an unaudited, consolidated statement of cash flows of the fiscal year, setting forth in each case in comparative form the figures for the corresponding period or periods of (or, in the case of the balance sheet, as of the end of) the previous fiscal year;
(d) within 60 days after the end of each of the first three fiscal quarters of each fiscal year, Company and its consolidated balance sheet and related statements of income, stockholders' equity and cash flows as of the end of and Subsidiaries for such fiscal quarter and quarter; provided that this requirement shall be deemed to have been satisfied if on or prior to such date the then elapsed portion of the fiscal year, setting forth in each case in comparative form the figures Company files its quarterly report on Form 10-Q for the corresponding period or periods of (or, in the case of the balance sheet, as of the end of) the budget and previous fiscal year, all certified by one of its Financial Officers as presenting fairly in all material respects the results of operations of the Company on a consolidated basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments and the absence of footnotes;
(e) within 30 days after the end of each month which is neither a applicable fiscal year end nor a fiscal quarter end, its consolidated balance sheet and related statements of income, stockholders' equity and cash flows as of the end of and for such month and the then elapsed portion of the fiscal year, setting forth in each case in comparative form the figures for the corresponding period or periods of (or, in the case of the balance sheet, as of the end of) the previous fiscal year, all certified by one of its Financial Officers as presenting fairly in all material respects the results of operations of the Company on a consolidated basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments and the absence of footnotes;
(f) by no later than December 15 of each fiscal year, a budget and business plan for the immediately succeeding fiscal year in the form approved by the Company's board of directors, in form, scope and detail satisfactory to the Purchasers and on a quarterly basis for each fiscal quarter of such succeeding fiscal year;
(g) promptly after the same become publicly available, (to the extent not available through electronic means) copies of all periodic and other reports, proxy statements and other materials filed by the Company or any Subsidiary with the SEC, or any Governmental Agency succeeding to any or all of the functions of the SEC, or with any national securities exchange, or distributed by the Company to its stockholders generally, as the case may be;
(h) promptly after the same are delivered to the members of the Board of Directors, copies of all business plans and other financial plans relating to the Company and/or its Subsidiaries; and
(ic) promptly following reasonable access, to the extent reasonably requested by the Investor Parties or the Investor Representative, to the Company’s books and records, and to the Company’s officers to discuss the Company’s affairs, finances and accounts with its officers, all upon reasonable notice and at such reasonable times as the Investor Parties and the Investor Representative may reasonably request; provided that any request therefor, such other information regarding investigation pursuant to this Section 5.15 shall be conducted in a manner as not to interfere with the operations, conduct of the business affairs and financial condition of the Company and its Subsidiaries; provided, further that the Company shall not be obligated to provide such access or materials if the Company determines, in its reasonable judgment, that doing so would reasonably be expected to (i) result in the disclosure of trade secrets or competitively sensitive information to third parties (other than Investor Parties), (ii) violate applicable Law, an applicable Judgment or a Contract or obligation of confidentiality owed to a third party, (iii) jeopardize the protection of an attorney-client privilege, attorney work product protection or other legal privilege, or (iv) expose the Company to risk of liability for disclosure of personal information; provided that the Parties shall use their commercially reasonable efforts to disclose such information in a manner that would not violate the foregoing. In addition, notwithstanding anything to the contrary contained herein, neither the Company nor any of its Subsidiaries will be required to provide any information or material that relates to, contains or reflects any analyses, studies, notes, memoranda and other information related to or prepared in connection with any Transaction Document or the Transactions or any Subsidiary, matters relating thereto or compliance any transactions with or matters relating to the terms Investor Parties or any Affiliates of the this Agreement or any Related Document, as the Purchasers may reasonably requestInvestor.
Appears in 2 contracts
Sources: Investment Agreement (KAR Auction Services, Inc.), Investment Agreement (KAR Auction Services, Inc.)
Information Rights. The Company shall furnish deliver to each Purchaser Investor who holds (and continues to hold) at least 5% 1,000,000 shares of the Common Company’s Conversion Stock on (subject to appropriate adjustment for stock splits, stock dividends and combinations) (each, a fully diluted as if converted basis (and regardless to each of GE and Midwest if such Purchaser holds at least a majority of the Series B Shares such Purchaser purchased hereunder“Qualified Holder”):
(a) As soon as practicable, but in any event within 105 one hundred-eighty (180) calendar days after the end of each fiscal year (orof the Company, consolidated balance sheets of the Company and its subsidiaries, if required to be filed with the SEC soonerany, then concurrently with such filing), its Form 10-K containing its audited consolidated balance sheet and related statements of income, stockholders' equity and cash flows as of the end of and for such year, setting forth in each case in comparative form the figures for the previous fiscal year, all reported on by PriceWaterhouseCoopers or other independent public accountants and consolidated statements of recognized national standing (without any qualification or exception as to the scope income and consolidated statements of such audit) to the effect that such consolidated financial statements present fairly in all material respects the financial condition and results of operations cash flows of the Company and its consolidated Subsidiaries on a consolidated basis subsidiaries, if any, for such year, prepared in accordance with GAAP consistently applied;generally accepted accounting principles (“GAAP”), all in reasonable detail and audited by independent public accountants of national or regional standing selected by the Board of Directors of the Company; and
(b) As soon as practicable, but in any event within 105 days after the end of each fiscal year forty-five (or, if required to be filed with the SEC sooner, then concurrently with such filing), its consolidated balance sheets and related statements of income, stockholders' equity and cash flows as of the end of and for such year, setting forth in each case in comparative form the figures for the previous fiscal year, all certified by one of its Financial Officers as presenting fairly in all material respects the results of operations of the Company on a consolidated basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments and the absence of footnotes;
(c45) within 60 calendar days after the end of each of the first three fiscal (3) quarters of each fiscal year (orof the Company, consolidated balance sheets of the Company and its subsidiaries, if required to be filed with the SEC soonerany, then concurrently with such filing), its Form 10-Q containing its consolidated balance sheet and related statements of income, stockholders' equity and cash flows as of the end of such quarter, and consolidated statements of income and consolidated statements of cash flows of the Company and its subsidiaries, if any, for such fiscal quarter prepared in accordance with GAAP consistently applied with prior practice for earlier periods (with the exception that footnotes that may be required by GAAP may be omitted) and which fairly present the then elapsed portion financial condition of the fiscal year, setting forth in each case in comparative form the figures Company and its results of operation for the corresponding period or periods of (orspecified, in the case of the balance sheet, as of the subject to year-end of) the previous fiscal year;audit adjustment.
(dc) within 60 Within thirty (30) days after of the end of each month, an unaudited income statement and statement of the first three fiscal quarters of each fiscal yearcash flows for such month, its consolidated and a balance sheet for and related statements of income, stockholders' equity and cash flows as of the end of such month, in reasonable detail, as well as a budget update and variances from projected financial results for such fiscal quarter and the then elapsed portion of the fiscal year, setting forth in each case in comparative form the figures for the corresponding period or periods of (or, in the case of the balance sheet, as of the end of) the budget and previous fiscal year, all certified by one of its Financial Officers as presenting fairly in all material respects the results of operations of the Company on a consolidated basis month prepared in accordance with GAAP consistently appliedapplied with prior practice for earlier periods (with the exception that footnotes that may be required by GAAP may be omitted) and which fairly present the financial condition of the Company and its results of operation for the period specified, subject to normal year-end audit adjustments and the absence of footnotes;adjustment; and
(ed) within 30 As soon as practicable, but in any event at least forty-five (45) days after prior to the end of each month which is neither a fiscal year end nor a fiscal quarter end, its consolidated balance sheet and related statements of income, stockholders' equity and cash flows as of the end of and for such month and the then elapsed portion of the fiscal year, setting forth in each case in comparative form the figures for the corresponding period or periods of (or, in the case of the balance sheet, as of the end of) the previous fiscal year, all certified by one of its Financial Officers as presenting fairly in all material respects the results of operations of the Company on a consolidated basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments and the absence of footnotes;
(f) by no later than December 15 of each fiscal year, a budget and business plan for the immediately succeeding next fiscal year in the form as approved by the Company's board of directors, in form, scope and detail satisfactory to the Purchasers and on a quarterly basis for each fiscal quarter of such succeeding fiscal year;
(g) promptly after the same become publicly available, (to the extent not available through electronic means) copies of all periodic and other reports, proxy statements and other materials filed by the Company or any Subsidiary with the SEC, or any Governmental Agency succeeding to any or all of the functions of the SEC, or with any national securities exchange, or distributed by the Company to its stockholders generally, as the case may be;
(h) promptly after the same are delivered to the members of the ’s Board of Directors, copies of all business plans prepared on a monthly basis, including balance sheets and other financial plans relating to the Company and/or its Subsidiaries; income statements for such months and
(i) promptly following any request therefor, such other information regarding the operations, business affairs and financial condition of the Company or any Subsidiary, or compliance with the terms of the this Agreement or any Related Document, as soon as prepared, any other budgets or revised budgets prepared by the Purchasers may reasonably requestCompany.
Appears in 2 contracts
Sources: Investors’ Rights Agreement (Mavenir Systems Inc), Investors’ Rights Agreement (Mavenir Systems Inc)
Information Rights. The Company shall furnish to each Purchaser who So long as an Investor (together with its affiliates) holds at least 5% 166,500 shares of the Preferred Stock (or Common Stock on issued or issuable upon conversion of such Preferred Stock, or a fully diluted as if converted basis combination thereof) (and regardless to each of GE and Midwest if such Purchaser holds at least investors individually, a majority of “Major Investor”), the Series B Shares such Purchaser purchased hereunder):Company will:
(a) within 105 days provide to each such Major Investor as soon as practicable after the end of each fiscal year year, and in any event within 120 days thereafter (or, if required to be filed with or such longer period as is unanimously approved by the SEC sooner, then concurrently with such filingCompany’s Board of Directors (the “Board”)), its Form 10-K containing its an audited consolidated balance sheet of the Company and related its subsidiaries, if any, as of the end of such fiscal year, and audited consolidated statements of income, stockholders' equity ’ equity, and cash flows as of the end of Company and its subsidiaries, if any, for such year, prepared in accordance with generally accepted accounting principles (“GAAP”) consistently applied with prior practice for earlier periods and setting forth in each case in comparative form the figures for the previous fiscal year, all reported on in reasonable detail and all audited and certified by PriceWaterhouseCoopers or other independent a nationally recognized public accountants accounting firm;
(b) provide such Major Investor as soon as practicable after the end of recognized national standing (without each quarter and in any qualification or exception as to the scope of such audit) to the effect that such event within 45 days thereafter, an unaudited consolidated financial statements present fairly in all material respects the financial condition and results of operations balance sheet of the Company and its consolidated Subsidiaries on a consolidated basis in accordance with GAAP consistently applied;
(b) within 105 days after the end of each fiscal year (orsubsidiaries, if required to be filed with the SEC soonerany, then concurrently with such filing), its consolidated balance sheets and related statements of income, stockholders' equity and cash flows as of the end of each such quarter, an unaudited consolidated statements of income, and an unaudited consolidated statement of cash flow of the Company and its subsidiaries for such period and for such yearthe current fiscal year to date, and setting forth in each case in comparative form the figures for corresponding periods in the previous fiscal year, all certified by one of its Financial Officers as presenting fairly and setting forth in all material respects comparative form the results of operations of budgeted figures for such period and for the Company on a consolidated basis current fiscal year then reported, prepared in accordance with GAAP consistently appliedapplied with prior practice for earlier periods (with the exception of footnotes that may be required by GAAP and provided that the foregoing shall not restrict the right of the Company to change its accounting principles consistent with GAAP, if the Board determines that it is in the best interest of the Company to do so), subject to normal changes resulting from year-end audit adjustments adjustments, all in reasonable detail and signed by the absence principal financial or accounting officer of footnotesthe Company;
(c) provide to such Major Investor within 60 thirty (30) days after prior to the end of each of the first three fiscal quarters beginning of each fiscal year (or, if required to be filed with the SEC sooner, then concurrently with such filing), its Form 10-Q containing its consolidated balance sheet an annual operating plan and related statements of income, stockholders' equity and cash flows as of the end of and a budget for such fiscal quarter and the then elapsed portion of the each fiscal year, setting forth in prepared on a monthly basis, including balance sheets and sources and applications of funds statements for such months, and a strategic plan, each case in comparative form of which shall have been approved by the figures for the corresponding period or periods of (or, in the case of the balance sheet, as of the end of) the previous fiscal yearBoard;
(d) within 60 days after the end of each provide to such Major Investor, on request, a capitalization summary of the first three fiscal quarters Company as the close of each fiscal year, its consolidated balance sheet and related statements of income, stockholders' equity and cash flows as of the end of and for such fiscal quarter and the then elapsed portion of the fiscal year, setting forth in each case in comparative form the figures for the corresponding period or periods of (or, in the case of the balance sheet, as of the end of) the budget and previous fiscal year, all certified by one of its Financial Officers as presenting fairly in all material respects the results of operations of the Company on a consolidated basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments and the absence of footnotes;; and
(e) within 30 days after allow such Major Investor to examine the end of each month which is neither a fiscal year end nor a fiscal quarter end, its consolidated balance sheet books and related statements of income, stockholders' equity and cash flows as records of the end of Company, inspect the Company’s facilities and for such month request information, all at reasonable times and intervals, concerning the then elapsed portion general status of the fiscal yearCompany’s financial condition and operations, setting forth in each case in comparative form the figures for the corresponding period or periods of (or, in the case of the balance sheet, as of the end of) the previous fiscal year, all certified by one of its Financial Officers as presenting fairly in all material respects the results of operations of provided that the Company on a consolidated basis in accordance with GAAP consistently applied, subject may restrict access to normal year-end audit adjustments confidential proprietary information and the absence of footnotes;
(f) by no later than December 15 of each fiscal year, a budget and business plan for the immediately succeeding fiscal year in the form approved by the Company's board of directors, in form, scope and detail satisfactory to the Purchasers and on a quarterly basis for each fiscal quarter of such succeeding fiscal year;
(g) promptly after the same become publicly available, (to the extent not available through electronic means) copies of all periodic and other reports, proxy statements and other materials filed by the Company or any Subsidiary with the SEC, or any Governmental Agency succeeding to any or all of the functions of the SEC, or with any national securities exchange, or distributed by the Company to its stockholders generally, as the case may be;
(h) promptly after the same are delivered to the members of the Board of Directors, copies of all business plans and other financial plans relating to the Company and/or its Subsidiaries; and
(i) promptly following any request therefor, such other information regarding the operations, business affairs and financial condition of the Company or any Subsidiary, or compliance with the terms of the this Agreement or any Related Document, as the Purchasers may reasonably requestfacilities.
Appears in 2 contracts
Sources: Investor's Rights Agreement, Investors’ Rights Agreement (Bluearc Corp)
Information Rights. (a) The Company shall furnish provide to each Purchaser who holds at least 5% GEI Party, Select Roll-Over Investor and Mezzanine Investor, for so long as such GEI Party, Select Roll-Over Investor or Mezzanine Investor, as the case may be, owns any of the Common shares of Capital Stock acquired by such GEI Party, Select Roll-Over Investor or Mezzanine Investor, as the case may be, on the date of this Agreement, the following information:
(i) as soon as available, but no later than sixty (60) days after the end of each quarterly accounting period in each fiscal year of the Company (other than any quarterly accounting period ending on the last day of a fully diluted fiscal year of the Company), unaudited consolidated statements of income and cash flows of the Company and its consolidated subsidiaries for such quarterly period (as if converted basis well as unaudited consolidated statements of income of the Company and its consolidated subsidiaries for the period from the beginning of the fiscal year to the end of such quarter) and unaudited consolidated balance sheets of the Company and its consolidated subsidiaries as of the end of such quarterly period (and regardless such financial statements shall set forth in each case comparisons to each the Company’s and its consolidated subsidiaries’ corresponding period in the preceding fiscal year, with an explanation of GE any material differences between them). Such financial statements shall be prepared in accordance with GAAP, subject to the absence of footnote disclosures and Midwest if such Purchaser holds at least a majority of the Series B Shares such Purchaser purchased hereunder):to normal year-end adjustments; and
(aii) within 105 as soon as available, but no later than one hundred and twenty (120) days after the end of each fiscal year (orof the Company, if required to be filed with the SEC sooner, then concurrently with such filing), its Form 10-K containing its audited consolidated balance sheet and related statements of income, stockholders' equity income and cash flows as of the end of and for such year, setting forth in each case in comparative form the figures for the previous fiscal year, all reported on by PriceWaterhouseCoopers or other independent public accountants of recognized national standing (without any qualification or exception as to the scope of such audit) to the effect that such consolidated financial statements present fairly in all material respects the financial condition and results of operations of the Company and its consolidated Subsidiaries on a consolidated basis in accordance with GAAP consistently applied;
(b) within 105 days after the end of each subsidiaries for such fiscal year (oryear, if required to be filed with the SEC sooner, then concurrently with such filing), its and audited consolidated balance sheets of the Company and related statements of income, stockholders' equity and cash flows its consolidated subsidiaries as of the end of such fiscal year (and for such year, setting financial statements shall set forth in each case comparisons to the Company’s and its consolidated subsidiaries’ corresponding period in comparative form the figures for the previous preceding fiscal year), all and accompanied by the report of the Company’s independent certified public accountants. Such financial statements shall be prepared in accordance with GAAP.
(b) All information disclosed by one the Company to any GEI Party, Select Roll-Over Investor or Mezzanine Investor pursuant to Section 9.13 shall be confidential information of its Financial Officers the Company (other than information which is publicly available) and, unless as presenting fairly otherwise provided in all material respects this Agreement or consented by the results Board of operations Directors of the Company in writing in advance, shall not be used by the recipients thereof for any purpose other than to monitor and manage their investment in the Company, and shall not be disclosed to any third party other than (i) employees, accountants and attorneys of such recipient to the extent that they are bound by similarly restrictive confidentiality obligations with respect to such information or (ii) as otherwise permitted pursuant to any other written agreement by and between the Company and the recipient of such confidential information. The obligations of the parties hereunder shall not apply to the extent that the disclosure of information otherwise determined to be confidential is required by applicable law, regulations, subpoena, civil investigative demand or other process or compulsion, provided, that: (x) prior to disclosing such confidential information, a party shall notify the Company thereof, which notice shall include the basis upon which such party believes the information is required to be disclosed; and (y) such party shall, if requested by the Company and at the sole cost and expense of the Company, provide reasonable cooperation with the Company to protect the continued confidentiality thereof. In addition, and subject to the foregoing provisions of this Section 9.13(b), each GEI Party will have the right, on reasonable advance notice and as often as may be reasonably desired, to meet, consult with, and advise the management of the Company on a consolidated basis in accordance with GAAP consistently appliedsignificant business issues, subject to normal year-end audit adjustments examine the Company’s books and the absence of footnotes;
(c) within 60 days after the end of each of the first three fiscal quarters of each fiscal year (orrecords, if required to be filed with the SEC sooner, then concurrently with such filing), its Form 10-Q containing its consolidated balance sheet documents and related statements of income, stockholders' equity and cash flows as of the end of and for such fiscal quarter and the then elapsed portion of the fiscal year, setting forth in each case in comparative form the figures for the corresponding period or periods of (or, other written information that is in the case of the balance sheet, as of the end of) the previous fiscal year;
(d) within 60 days after the end of each of the first three fiscal quarters of each fiscal year, its consolidated balance sheet and related statements of income, stockholders' equity and cash flows as of the end of and for such fiscal quarter and the then elapsed portion of the fiscal year, setting forth in each case in comparative form the figures for the corresponding period or periods of (or, in the case of the balance sheet, as of the end of) the budget and previous fiscal year, all certified by one of its Financial Officers as presenting fairly in all material respects the results of operations possession of the Company on a consolidated basis in accordance with GAAP consistently applied, subject and to normal year-end audit adjustments visit and inspect the absence of footnotes;
(e) within 30 days after the end of each month which is neither a fiscal year end nor a fiscal quarter end, its consolidated balance sheet and related statements of income, stockholders' equity and cash flows as of the end of and for such month and the then elapsed portion of the fiscal year, setting forth in each case in comparative form the figures for the corresponding period or periods of (or, in the case of the balance sheet, as of the end of) the previous fiscal year, all certified by one of its Financial Officers as presenting fairly in all material respects the results of operations properties of the Company on a consolidated basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments and the absence of footnotes;
(f) by no later than December 15 of each fiscal year, a budget and business plan for the immediately succeeding fiscal year in the form approved by the Company's board of directors, in form, scope and detail satisfactory to the Purchasers and on a quarterly basis for each fiscal quarter of such succeeding fiscal year;
(g) promptly after the same become publicly available, (to the extent not available through electronic means) copies of all periodic and other reports, proxy statements and other materials filed by the Company or any Subsidiary with the SEC, or any Governmental Agency succeeding to any or all of the functions of the SEC, or with any national securities exchange, or distributed by the Company to its stockholders generally, as the case may be;
(h) promptly after the same are delivered to the members of the Board of Directors, copies of all business plans and other financial plans relating to the Company and/or its Subsidiaries; and
(i) promptly following any request therefor, such other information regarding the operations, business affairs and financial condition of the Company or any Subsidiary, or compliance with the terms of the this Agreement or any Related Document, as the Purchasers may reasonably requestsubsidiaries.
Appears in 2 contracts
Sources: Stockholders Agreement (Container Store Group, Inc.), Stockholders Agreement (Container Store Group, Inc.)
Information Rights. The Company shall furnish to each Purchaser who holds at least 5% of the Common Stock on a fully diluted as if converted basis (and regardless to each of GE and Midwest if such Purchaser holds at least a majority of the Series B Shares such Purchaser purchased hereunder):
(a) within 105 days after the end of each fiscal year For so long as any APLD Investor is a party to this Agreement (or, if required subject to be filed with the SEC sooner, then concurrently with such filingSection 5.1), its Form 10-K containing its audited consolidated balance sheet and related statements without limitation or prejudice of income, stockholders' equity and cash flows as any of the end of and for such year, setting forth in each case in comparative form the figures for the previous fiscal year, all reported on by PriceWaterhouseCoopers or other independent public accountants of recognized national standing (without any qualification or exception as rights provided to the scope APLD Investors hereunder, the Company shall, with respect to each such APLD Investor:
i. provide each APLD Investor or its designated representative with:
(A) upon reasonable notice and at mutually convenient times, the right to visit and inspect any of such audit) to the effect that such consolidated financial statements present fairly in all material respects the financial condition offices and results of operations properties of the Company and its consolidated Subsidiaries on a consolidated basis in accordance with GAAP consistently appliedand inspect and copy the books and records of the Company and its Subsidiaries;
(bB) as soon as available and in any event within 105 days after the end of each fiscal year (or, if required to be filed with the SEC sooner, then concurrently with such filing), its consolidated balance sheets and related statements of income, stockholders' equity and cash flows as of the end of and for such year, setting forth in each case in comparative form the figures for the previous fiscal year, all certified by one of its Financial Officers as presenting fairly in all material respects the results of operations of the Company on a consolidated basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments and the absence of footnotes;
(c) within 60 45 days after the end of each of the first three fiscal quarters of each fiscal year (orof the Company, if required to be filed with the SEC sooner, then concurrently with such filing), its Form 10-Q containing its consolidated balance sheet sheets of the Company and related statements of income, stockholders' equity and cash flows its Subsidiaries as of the end of such period, and for such fiscal quarter consolidated statements of income and the then elapsed portion cash flows of the fiscal year, setting forth in each case in comparative form the figures Company and its Subsidiaries for the corresponding period or periods of (or, then ended prepared in conformity with generally accepted accounting principles in the case United States applied on a consistent basis, except as otherwise noted therein, and subject to the absence of the balance sheet, as of the footnotes and to year-end of) the previous fiscal yearadjustments;
(dC) as soon as available and in any event within 60 120 days after the end of each fiscal year of the first three fiscal quarters of each fiscal yearCompany, its a consolidated balance sheet of the Company and related statements of income, stockholders' equity and cash flows its Subsidiaries as of the end of and for such fiscal quarter and the then elapsed portion of the fiscal year, setting forth in each case in comparative form the figures for the corresponding period or periods and consolidated statements of (or, in the case of the balance sheet, as of the end of) the budget income and previous fiscal year, all certified by one of its Financial Officers as presenting fairly in all material respects the results of operations cash flows of the Company and its Subsidiaries for the year then ended prepared in conformity with generally accepted accounting principles in the United States applied on a consolidated basis in accordance consistent basis, except as otherwise noted therein, together with GAAP consistently applied, subject to normal year-end audit adjustments and the absence an auditor’s report thereon of footnotesa firm of established national reputation;
(eD) within 30 days after to the end extent the Company is required by applicable Law or pursuant to the terms of each month which is neither a fiscal year end nor a fiscal quarter end, its consolidated balance sheet and related statements of income, stockholders' equity and cash flows as of the end of and for such month and the then elapsed portion of the fiscal year, setting forth in each case in comparative form the figures for the corresponding period or periods of (or, in the case of the balance sheet, as of the end of) the previous fiscal year, all certified by one of its Financial Officers as presenting fairly in all material respects the results of operations any outstanding indebtedness of the Company on a consolidated basis in accordance with GAAP consistently appliedto prepare such reports, subject to normal year-end audit adjustments and the absence of footnotes;
(f) by no later than December 15 of each fiscal yearany annual reports, a budget and business plan for the immediately succeeding fiscal year in the form approved by the Company's board of directors, in form, scope and detail satisfactory to the Purchasers and on a quarterly basis for each fiscal quarter of such succeeding fiscal year;
(g) promptly after the same become publicly available, (to the extent not available through electronic means) copies of all periodic reports and other reportsperiodic reports pursuant to Section 13 or 15(d) of the Exchange Act, proxy statements and other materials filed actually prepared by the Company or any Subsidiary with the SEC, or any Governmental Agency succeeding to any or all of the functions of the SEC, or with any national securities exchange, or distributed as soon as available; and
(E) upon written request by the Company to its stockholders generally, as the case may be;
(h) promptly after the same are delivered to the members of the Board of DirectorsAPLD Investor, copies of all business plans materials provided to the Board, subject to appropriate protections with respect to confidentiality and other financial plans preservation of attorney-client privilege; provided, that, in each case, if the Company makes the information described in clauses (B), (C) and (D) of this Section 3.3(a)(i) available through public filings on the ▇▇▇▇▇ System or any successor or replacement system of the U.S. Securities and Exchange Commission, the requirement to deliver such information shall be deemed satisfied;
ii. make appropriate officers and/or Directors of the Company available, and cause the officers and directors of its Subsidiaries to be made available, periodically and at such times as reasonably requested by each APLD Investor, upon reasonable notice and at mutually convenient times, for consultation with such APLD Investor or its designated representative with respect to matters relating to the business and affairs of the Company and/or and its Subsidiaries; and
iii. to the extent that the APLD Investor requests to receive such information and rights, and to the extent consistent with applicable Law or listing standards (iand with respect to events which require public disclosure, only following the Company’s public disclosure thereof through applicable securities law filings or otherwise), inform each APLD Investor or its designated representative in advance with respect to any significant corporate actions, and to provide (or cause to be provided) promptly following any request thereforeach APLD Investor or its designated representative with the right to consult with the Company and its Subsidiaries with respect to such actions should the APLD Investor elect to do so; provided, such other information regarding however, that this right to consult must be exercised within five days after the operations, business affairs and financial condition Company informs the APLD Investor of the proposed corporate action; provided, further, that the Company shall be under no obligation to provide the APLD Investor with any material non-public information with respect to such corporate action.
(b) The Company agrees to consider, in good faith, the recommendations of each APLD Investor or any Subsidiary, or compliance its designated representative in connection with the terms of matters on which it is consulted as described above in this Section 3.3, recognizing that the this Agreement or any Related Document, as ultimate discretion with respect to all such matters shall be retained by the Purchasers may reasonably requestCompany.
Appears in 2 contracts
Sources: Investor Rights Agreement (Ekso Bionics Holdings, Inc.), Investor Rights Agreement (Ekso Bionics Holdings, Inc.)
Information Rights. The During such time as the Company shall furnish not be obligated to file periodic reports pursuant to Section 13 or 15(d) of the Exchange Act, the Company will deliver, or will cause to be delivered, the following to each Purchaser who holds DCP Investor, the Golden Gate Investor, each CCCS Holder and, so long as any individual Rollover Holder beneficially owns at least 5% of the Shares of Common Stock on a fully diluted as if converted basis (and regardless to each of GE and Midwest if Stock, such Purchaser holds at least a majority of the Series B Shares such Purchaser purchased hereunder):Rollover Holders:
(a) within 105 days as soon as available after the end of each fiscal year (orof the Company, if required to be filed with the SEC soonerand in any event within 90 days thereafter, then concurrently with such filing), its Form 10-K containing its audited a consolidated balance sheet of the Company and related statements of income, stockholders' equity and cash flows its Subsidiaries as of the end of such fiscal year, and consolidated statements of income, retained earnings and cash flows of the Company and its Subsidiaries for such year, prepared in accordance with GAAP and setting forth in each case in comparative form the figures for the previous fiscal year, all reported on in reasonable detail and accompanied by PriceWaterhouseCoopers or other the opinion of the Company’s independent public accountants accountants;
(b) as soon as available after the end of recognized national standing (without the first, second and third quarterly accounting periods in each fiscal year of the Company, and in any qualification or exception as to the scope of such audit) to the effect that such event within 45 days thereafter, a consolidated financial statements present fairly in all material respects the financial condition and results of operations balance sheet of the Company and its consolidated Subsidiaries on a consolidated basis in accordance with GAAP consistently applied;
(b) within 105 days after the end of each fiscal year (or, if required to be filed with the SEC sooner, then concurrently with such filing), its consolidated balance sheets and related statements of income, stockholders' equity and cash flows as of the end of each such quarterly period, and for such yearconsolidated statements of income, setting forth in each case in comparative form the figures for the previous fiscal year, all certified by one of its Financial Officers as presenting fairly in all material respects the results of operations retained earnings and cash flows of the Company on a consolidated basis and its Subsidiaries for such period and for the current fiscal year to date, prepared in accordance with GAAP consistently applied, (subject to normal year-end audit adjustments and the absence of footnotes;
(cnotes thereto) within 60 days after the end of each of the first three fiscal quarters of each fiscal year (or, if required to be filed with the SEC sooner, then concurrently with such filing), its Form 10-Q containing its consolidated balance sheet and related statements of income, stockholders' equity and cash flows as of the end of and for such fiscal quarter and the then elapsed portion of the fiscal year, setting forth in each case in comparative form the figures for the corresponding period or periods of (or, in the case of the balance sheet, as of the end of) the previous fiscal year, all in reasonable detail and certified by the principal financial or accounting officer of the Company;
(dc) within 60 days as soon as available after the end of each of the first three fiscal quarters of each fiscal yearmonth and in any event within 20 days thereafter, its a consolidated balance sheet of the Company and related statements of income, stockholders' equity and cash flows its Subsidiaries as of the end of such month and for such fiscal quarter consolidated statements of operations, income, cash flows, retained earnings and the then elapsed portion of the fiscal year, setting forth in each case in comparative form the figures for the corresponding period or periods of (or, in the case of the balance sheet, as of the end of) the budget and previous fiscal year, all certified by one of its Financial Officers as presenting fairly in all material respects the results of operations shareholders’ equity of the Company on a consolidated basis and its Subsidiaries, for each month and for the current fiscal year of the Company to date, prepared in accordance with GAAP consistently applied, (subject to normal year-end audit adjustments and the absence of footnotes;notes thereto); and
(ed) within a proposed annual budget and a business plan and financial forecasts for the Company for the next fiscal year of the Company, no later than 30 days after before the end beginning of the Company’s next fiscal year, in such manner and form as approved by the Board, which shall include at least a projection of income and a projected cash flow statement for each month which is neither a fiscal quarter in such fiscal year end nor and a fiscal quarter end, its consolidated projected balance sheet and related statements of income, stockholders' equity and cash flows as of the end of and for each fiscal quarter in such month and the then elapsed portion of the fiscal year, setting forth in each case prepared in comparative form the figures for the corresponding period or periods of (orreasonable detail, in the case with appropriate presentation and discussion of the balance sheet, as of the end of) the previous fiscal year, all certified by one of its Financial Officers as presenting fairly in all material respects the results of operations of the Company on a consolidated basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments principal assumptions upon which such budgets and the absence of footnotes;
(f) by no later than December 15 of each fiscal year, a budget and business plan for the immediately succeeding fiscal year in the form approved by the Company's board of directors, in form, scope and detail satisfactory to the Purchasers and on a quarterly basis for each fiscal quarter of such succeeding fiscal year;
(g) promptly after the same become publicly available, (to the extent not available through electronic means) copies of all periodic and other reports, proxy statements and other materials filed by the Company or any Subsidiary with the SEC, or any Governmental Agency succeeding to any or all of the functions of the SEC, or with any national securities exchange, or distributed by the Company to its stockholders generally, as the case may be;
(h) promptly after the same are delivered to the members of the Board of Directors, copies of all business plans and other financial plans relating to the Company and/or its Subsidiaries; and
(i) promptly following any request therefor, such other information regarding the operations, business affairs and financial condition of the Company or any Subsidiary, or compliance with the terms of the this Agreement or any Related Document, as the Purchasers may reasonably requestprojections were prepared.
Appears in 2 contracts
Sources: Shareholder Agreement (Reliant Software, Inc.), Shareholder Agreement (Community Choice Financial Inc.)
Information Rights. The Company For so long any shares of Senior Perpetual Preferred Stock remains outstanding, the Corporation shall furnish provide to each Purchaser who holds at least 5% holder of the Common Stock on a fully diluted as if converted basis (and regardless to each of GE and Midwest if such Purchaser holds at least a majority of the Series B Shares such Purchaser purchased hereunder):Senior Perpetual Preferred Stock:
(a) as soon as available and in any event within 105 45 days after the end of each fiscal year (orquarter, if required to be filed with the SEC sooner, then concurrently with such filing), its Form 10-K containing its audited a consolidated balance sheet of the Corporation and related statements of income, stockholders' equity and cash flows its Subsidiaries as of at the end of such fiscal quarter, and the related consolidated statements of income or operations, cash flows and stockholders’ equity for such fiscal quarter and for such yearthe portion of the Corporation’s fiscal year then ended, setting forth in each case in comparative form the figures for the corresponding fiscal quarter of the previous fiscal year, all reported on by PriceWaterhouseCoopers or other independent public accountants year and the corresponding portion of recognized national standing (without any qualification or exception as to the scope of such audit) to the effect that such consolidated financial statements present fairly in all material respects the financial condition and results of operations of the Company and its consolidated Subsidiaries on a consolidated basis in accordance with GAAP consistently applied;
(b) within 105 days after the end of each fiscal year (or, if required to be filed with the SEC sooner, then concurrently with such filing), its consolidated balance sheets and related statements of income, stockholders' equity and cash flows as of the end of and for such year, setting forth in each case in comparative form the figures for the previous fiscal year, all certified by one of its Financial Officers as presenting fairly in all material respects the results of operations of the Company on a consolidated basis prepared in accordance with GAAP consistently appliedGAAP, subject to normal year-end audit adjustments and the absence of footnotes;
(cb) as soon as available and in any event within 60 one hundred twenty (120) days after for each fiscal year, the audited consolidated and consolidating balance sheet of the Corporation and its Subsidiaries as of the end of each of the first three fiscal quarters of each such fiscal year (or, if required to be filed with the SEC sooner, then concurrently with such filing), its Form 10-Q containing its consolidated balance sheet and related statements of income, stockholders' equity and cash flows as of the end of and stockholders’ equity for such fiscal quarter and the then elapsed portion year (except that consolidating statements shall not be required to include statements of the fiscal yearcash flows or stockholders’ equity), setting forth in each case in comparative form the figures for the corresponding period or periods of (or, in the case of the balance sheet, with such financial statements as of the end of) , and for, the previous preceding fiscal year, and notes thereto, which consolidated statements shall be accompanied by an opinion of Deloitte Touche Tohmatsu, Ernst & Young, KPMG International or PriceWaterhouseCoopers or other independent public accountants of recognized national standing, stating that such financial statements fairly present, in all material respects, the consolidated financial condition, results of operations and cash flows of the Corporation and its Subsidiaries as of the dates and for the periods specified in accordance with GAAP;
(dc) within 60 days after on or before the end of each of the first three fiscal quarters of each fiscal year, its consolidated balance sheet and related statements of income, stockholders' equity and cash flows as of the end of and for such fiscal quarter and the then elapsed portion of the fiscal year, setting forth in each case in comparative form the figures for the corresponding period or periods of third (or, in the case of the balance sheet, as of the end of3rd) the budget and previous fiscal year, all certified by one of its Financial Officers as presenting fairly in all material respects the results of operations of the Company on a consolidated basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments and the absence of footnotes;
(e) within 30 days after the end of each month which is neither a fiscal year end nor a fiscal quarter end, its consolidated balance sheet and related statements of income, stockholders' equity and cash flows as of the end of and for such month and the then elapsed portion of the fiscal year, setting forth in each case in comparative form the figures for the corresponding period or periods of (or, in the case of the balance sheet, as of the end of) the previous fiscal year, all certified by one of its Financial Officers as presenting fairly in all material respects the results of operations of the Company on a consolidated basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments and the absence of footnotes;
(f) by no later than December 15 of each fiscal year, a quarterly (or, in the sole discretion of the Corporation, monthly) consolidated budget and business plan for the immediately succeeding Corporation and its Subsidiaries for such fiscal year in year, including a projected consolidated balance sheet as of the form approved by the Company's board of directors, in form, scope and detail satisfactory to the Purchasers and on a quarterly basis for each fiscal quarter end of such succeeding fiscal year, the related consolidated statements of projected cash flows and projected income, and a description of the material underlying assumptions applicable thereto;
(gd) promptly after the same become publicly available, (i) within three (3) Business Days of delivery to the extent not available through electronic means) copies of all periodic and other reports, proxy statements and other materials filed by Administrative Agent (as defined in the Company or any Subsidiary with the SEC, or any Governmental Agency succeeding to any or all of the functions of the SEC, or with any national securities exchange, or distributed by the Company to its stockholders generally, as the case may be;
(h) promptly after the same are delivered to the members of the Board of DirectorsCredit Agreement), copies of all business plans and other financial plans relating material notices delivered to the Company and/or its Subsidiaries; and
(i) promptly following any request therefor, such other information regarding the operations, business affairs and financial condition of the Company or any Subsidiary, or compliance with Administrative Agent pursuant to the terms of the Credit Agreement and a copy of all material amendments to and/or waivers of the Credit Agreement, and (ii) within three (3) Business Days following delivery or receipt by the Corporation or its subsidiaries, copies of all material notices delivered or received and a copy of all material amendments to and/or waivers of, the ABS Documents;
(e) upon the written request of the Preferred Holders holding the majority of the issued and outstanding Senior Perpetual Preferred Stock or the Lead Investors, the Corporation shall make one or more appropriate, senior members of the Corporation’s management team available for a conference call with the Preferred Holders to report on the Corporation’s financial results, provided, that the Preferred Holders and the Lead Investors, collectively, may request such a conference call no more than one (1) times in any fiscal quarter. The obligations of the Corporation pursuant to clauses (a) and (b) of this Agreement or any Related Document, as Section 14 may be satisfied by the Purchasers may reasonably requesttimely filing by the corporation of annual and quarterly reports with the Securities and Exchange Commission containing the relevant information.
Appears in 2 contracts
Sources: Senior Preferred Stock Purchase Agreement (SelectQuote, Inc.), Senior Preferred Stock Purchase Agreement (SelectQuote, Inc.)
Information Rights. The Company shall furnish to each Purchaser who holds at least 5% of the Common Stock on a fully diluted as if converted basis (and regardless to each of GE and Midwest if such Purchaser holds at least a majority of the Series B Shares such Purchaser purchased hereunder):
(a) The Company will furnish CVC, GEI V and GEI Side V, so long as each such Stockholder holds Shares, with the following information:
(i) As soon as available, and in any event within 105 90 days after the end of each fiscal year (orof the Company, if required to be filed with the SEC sooner, then concurrently with such filing), its Form 10-K containing its audited consolidated balance sheet of the Company and related its Subsidiaries as at the end of each such fiscal year and the consolidated statements of income, stockholders' equity and cash flows as and changes in stockholders’ equity for such year of the end of Company and for such yearits Subsidiaries, setting forth in each case in comparative form the figures for the previous next preceding fiscal year, all reported on accompanied by PriceWaterhouseCoopers or other the report of independent certified public accountants of recognized national standing (without any qualification or exception as to the scope of such audit) standing, to the effect that that, except as set forth therein, such consolidated financial statements have been prepared in accordance with generally accepted accounting principles applied on a basis consistent with prior years and fairly present fairly in all material respects the financial condition and results of operations of the Company and its consolidated Subsidiaries on a consolidated basis at the dates thereof and the results of their operations and changes in accordance with GAAP consistently applied;their cash flows and stockholders’ equity for the periods covered thereby.
(bii) As soon as available, and in any event within 105 45 days after the end of each fiscal year (orquarter of the Company, if required to be filed with the SEC sooner, then concurrently with such filing), its consolidated balance sheets sheet of the Company and related its Subsidiaries as at the end of such quarter and the consolidated statements of income, stockholders' equity and cash flows as and changes in stockholders’ equity for such quarter and the portion of the end fiscal year then ended of the Company and for such yearits Subsidiaries, setting forth in each case in comparative form the figures for the previous fiscal year, all certified by one of its Financial Officers as presenting fairly in all material respects the results of operations of the Company on a consolidated basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments and the absence of footnotes;
(c) within 60 days after the end of each of the first three fiscal quarters of each fiscal year (or, if required to be filed with the SEC sooner, then concurrently with such filing), its Form 10-Q containing its consolidated balance sheet and related statements of income, stockholders' equity and cash flows as of the end of and for such fiscal quarter and the then elapsed portion of the fiscal year, setting forth in each case in comparative form the figures for the corresponding period or periods of (or, in the case of the balance sheet, as of the end of) the previous fiscal year;year in comparative form, all in reasonable detail.
(diii) within 60 days after the end of each of the first three fiscal quarters of each fiscal yearAs soon as available, its consolidated balance sheet and related statements of income, stockholders' equity and cash flows as of the end of and for such fiscal quarter and the then elapsed portion of the fiscal year, setting forth in each case in comparative form the figures for the corresponding period or periods of (or, in the case of the balance sheet, as of the end of) the budget and previous fiscal year, all certified by one of its Financial Officers as presenting fairly in all material respects the results of operations of the Company on a consolidated basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments and the absence of footnotes;
(e) any event within 30 days after the end of each month which is neither a fiscal year end nor a fiscal quarter endmonth, its the consolidated balance sheet of the Company and related its Subsidiaries as at the end of such month and the consolidated statements of income, stockholders' equity and cash flows as of the end of and changes in stockholders’ equity for such month and the then elapsed portion of the fiscal yearyear then ended of the Company and its Subsidiaries, setting forth in each case in comparative form the figures for the corresponding period or periods of (or, in the case of the balance sheet, as of the end of) the previous fiscal yearyear in comparative form, all certified by one of its Financial Officers as presenting fairly in all material respects the results of operations of the Company on a consolidated basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments and the absence of footnotes;reasonable detail.
(fiv) by no later than December 15 of each fiscal year, a budget and business plan for the immediately succeeding fiscal year in the form approved by the Company's board of directors, in form, scope and detail satisfactory to the Purchasers and on a quarterly basis for each fiscal quarter of such succeeding fiscal year;
(g) promptly after the same become publicly available, (to To the extent permitted by, and not available through electronic meansinconsistent with, applicable law, regularly reported financial information (e.g. comparable store sales figures) copies of all periodic and such other reportsinformation as CVC, proxy statements and GEI V or GEI Side V may reasonably request or any other materials filed information that is delivered by the Company or the Board to either CVC, GEI V or GEI Side V.
(b) Upon the request of CVC, GEI V or GEI Side V, so long as such Stockholder holds Shares, such Stockholder and any Subsidiary with the SEC, or any Governmental Agency succeeding representatives of such Stockholder shall have (i) reasonable access (at reasonable times and upon reasonable notice) to any or all executive officers and accountants of the functions of the SECCompany and its Subsidiaries and (ii) reasonable access (at reasonable times and upon reasonable notice) to all premises, or with any national securities exchangeproperties, or distributed by the Company to its stockholders generallybooks, as the case may be;
records (h) promptly after the same are delivered to the members of the Board of Directorsincluding tax records), copies of all business plans contracts, financial and other financial plans relating operating data and information and documents pertaining to the Company and/or and its Subsidiaries; and
(i) promptly following any request thereforSubsidiaries and shall be entitled to make copies of such books, records, contracts, data, information and documents as such other information regarding the operations, business affairs and financial condition of the Company Stockholder or any Subsidiary, or compliance with the terms of the this Agreement or any Related Document, as the Purchasers its representatives may reasonably request.
Appears in 2 contracts
Sources: Stockholders Agreement (BJ's Wholesale Club Holdings, Inc.), Stockholders Agreement (BJ's Wholesale Club Holdings, Inc.)
Information Rights. The Company shall furnish deliver to each Purchaser who holds at least 5% of the Common Stock on a fully diluted as if converted basis (and regardless to each of GE and Midwest if such Purchaser holds at least a majority of the Series B Shares such Purchaser purchased hereunder):Major Investor:
(ai) as soon as practicable, but in any event within 105 one hundred twenty (120) days after the end of each fiscal year of the Company, (or, if required to be filed with the SEC sooner, then concurrently with such filing), its Form 10-K containing its audited consolidated i) a balance sheet and related statements of income, stockholders' equity and cash flows as of the end of such year, (ii) statements of income and of cash flows for such year, setting forth in each case in comparative form the figures for the previous fiscal year, all reported on by PriceWaterhouseCoopers or other independent public accountants and (iii) a statement of recognized national standing (without any qualification or exception as to the scope of such audit) to the effect that such consolidated financial statements present fairly in all material respects the financial condition and results of operations of the Company and its consolidated Subsidiaries on a consolidated basis in accordance with GAAP consistently applied;
(b) within 105 days after the end of each fiscal year (or, if required to be filed with the SEC sooner, then concurrently with such filing), its consolidated balance sheets and related statements of income, stockholders' ’ equity and cash flows as of the end of and for such year, setting forth in each case in comparative form the figures for the previous fiscal year, all such financial statements audited and certified by one of its Financial Officers as presenting fairly in all material respects the results of operations of the Company on a consolidated basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments and the absence of footnotesindependent public accountants;
(cii) as soon as practicable, but in any event within 60 forty-five (45) days after the end of each of the first three fiscal (3) quarters of each fiscal year (orof the Company, if required to be filed with the SEC soonerunaudited statements of income and of cash flows for such fiscal quarter, then concurrently with such filing), its Form 10-Q containing its consolidated and an unaudited balance sheet and related statements of income, stockholders' equity and cash flows as of the end of and for such fiscal quarter quarter, all prepared in accordance with U.S. generally accepted accounting principles (“GAAP”) (except that such financial statements may (i) be subject to normal year-end audit adjustments and the then elapsed portion of the fiscal year, setting forth (ii) not contain all notes thereto that may be required in each case in comparative form the figures for the corresponding period or periods of (or, in the case of the balance sheet, as of the end of) the previous fiscal yearaccordance with GAAP);
(diii) as soon as practicable, but in any event within 60 forty-five (45) days after the end of each of the first three fiscal (3) quarters of each fiscal yearyear of the Company, its consolidated balance sheet a statement showing the number of shares of each class and related statements series of income, stockholders' equity capital stock and cash flows as securities convertible into or exercisable for shares of capital stock outstanding at the end of and the period, the Common Stock issuable upon conversion or exercise of any outstanding securities convertible or exercisable for such fiscal quarter Common Stock and the then elapsed portion 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 fiscal year, setting forth in each case in comparative form the figures for the corresponding period or periods of (or, Major Investors to calculate their respective percentage equity ownership in the case of the balance sheetCompany, as of the end of) the budget and previous fiscal year, all certified by one of its Financial Officers as presenting fairly in all material respects the results of operations chief financial officer or chief executive officer of the Company on a consolidated basis in accordance with GAAP consistently appliedas being true, subject to normal year-end audit adjustments complete, and the absence of footnotescorrect;
(eiv) within 30 as soon as practicable, but in any event thirty (30) days after the end of each month which is neither a fiscal year end nor a fiscal quarter end, its consolidated balance sheet and related statements of income, stockholders' equity and cash flows as final meeting of the end Board of and for such month and the then elapsed portion of the fiscal year, setting forth Directors in each case in comparative form the figures for the corresponding period or periods of (or, in the case of the balance sheet, as of the end of) the previous fiscal year, all certified by one of its Financial Officers as presenting fairly in all material respects the results of operations of the Company on a consolidated basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments and the absence of footnotes;
(f) by no later than December 15 of each any fiscal year, a budget and business plan for the immediately succeeding next fiscal year in (the form “Budget”), approved by the Company's board of directors, in form, scope and detail satisfactory to the Purchasers and on a quarterly basis for each fiscal quarter of such succeeding fiscal year;
(g) promptly after the same become publicly available, (to the extent not available through electronic means) copies of all periodic and other reports, proxy statements and other materials filed by the Company or any Subsidiary with the SEC, or any Governmental Agency succeeding to any or all of the functions of the SEC, or with any national securities exchange, or distributed by the Company to its stockholders generally, as the case may be;
(h) promptly after the same are delivered to the members of the Board of Directors, copies of all business plans and other financial plans relating to the Company and/or its Subsidiaries; and
(iv) promptly following any request therefor, such other information regarding relating to the operationsfinancial condition, business business, prospects, or corporate affairs and financial condition of the Company as any Major Investor may from time to time reasonably request; provided, however, that the Company shall not be obligated under this subsection (a) to provide information, upon advice from counsel, (i) that the Company reasonably determines in good faith to be a trade secret or confidential information (unless covered by an enforceable confidentiality agreement, in a form acceptable to the Company); (ii) which it would be unlawful for the Company to provide; or (iii) the disclosure of which would adversely affect the attorney-client privilege between the Company and its counsel. If, for any Subsidiaryperiod, or compliance the Company has any subsidiary whose accounts are consolidated with the terms those of the this Agreement or any Related DocumentCompany, as then in respect of such period the Purchasers may reasonably requestfinancial 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 2 contracts
Sources: Stockholders' Agreement, Stockholders Agreement (G1 Therapeutics, Inc.)
Information Rights. The Company shall furnish (1) In order to each Purchaser who holds at least 5% facilitate (i) the Investors’ and their Affiliates’ compliance with legal and regulatory requirements applicable to the beneficial ownership by the Investors and their Affiliates of equity securities of Real, and (ii) the provision by the Investors and their Affiliates’ of financial and other strategic advice to the business and affairs of Real and its Subsidiaries and the taking of such other actions for the benefit of Real and its Subsidiaries in the “necessary course of business” in accordance with the interpretive guidance set out in NP 51-201, for so long as the Investors or their Affiliates hold any of the Common Stock on a fully diluted as if converted basis (and regardless Purchased Securities, Real agrees promptly to each of GE and Midwest if such Purchaser holds at least a majority of provide the Series B Shares such Purchaser purchased hereunder):Investors with the following:
(a) within 105 120 days after the end of each fiscal year of Real, (ori) an audited, if required to be filed with the SEC sooner, then concurrently with such filing), its Form 10-K containing its audited consolidated balance sheet of Real and related statements of income, stockholders' equity and cash flows its Subsidiaries as of the end of such fiscal year and (ii) audited, consolidated statements of income, comprehensive income, cash flows and changes in shareholders’ equity of Real and its Subsidiaries for such year, setting forth in each case in comparative form the figures for the previous fiscal year, all reported on such financial statements audited and certified by PriceWaterhouseCoopers or other independent public accountants of recognized national standing (without any qualification standing; provided that this requirement shall be deemed to have been satisfied if on or exception as prior to the scope of such audit) to the effect that such consolidated date Real files its audited annual financial statements present fairly in all material respects with the financial condition and results of operations of the Company and its consolidated Subsidiaries on a consolidated basis in accordance with GAAP consistently appliedapplicable Canadian Securities Commissions pursuant to National Instrument 51-102 – Continuous Disclosure Obligations;
(b) within 105 days after the end of each fiscal year (or, if required to be filed with the SEC sooner, then concurrently with such filing), its consolidated balance sheets and related statements of income, stockholders' equity and cash flows as of the end of and for such year, setting forth in each case in comparative form the figures for the previous fiscal year, all certified by one of its Financial Officers as presenting fairly in all material respects the results of operations of the Company on a consolidated basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments and the absence of footnotes;
(c) within 60 45 days after the end of each of the first three fiscal quarters of each fiscal year of Real, (ori) an unaudited, if required to be filed with the SEC sooner, then concurrently with such filing), its Form 10-Q containing its consolidated balance sheet of Real and related statements of income, stockholders' equity and cash flows its Subsidiaries as of the end of and for such fiscal quarter and (ii) consolidated statements of income, comprehensive income and cash flows of Real and its Subsidiaries for such fiscal quarter, all prepared in accordance with IFRS; provided that this requirement shall be deemed to have been satisfied if on or prior to such date Real files its interim financial report with the then elapsed portion applicable Canadian Securities Commissions pursuant to National Instrument 51-102 – Continuous Disclosure Obligations; and
(c) (i) access to and consultation with appropriate officers, directors and management personnel of Real and its Subsidiaries at such times as reasonably requested by the Investors, in such manner as not to interfere unreasonably with the conduct of business of Real and its Subsidiaries, for consultation with the Investors with respect to matters relating to the business and affairs of the fiscal Issuer, and (ii) in connection with same, Real will furnish Investors with copies of any business plans, monthly financial reports, quarterly management reports, formal presentations to the Board, material documents provided to lenders of Real and such other financial and operating data and other information pertaining to Real; provided that in the case of (ii), such reports and information shall only be provided to the Investors to the extent they have been prepared by Real and made available to the Board and the lenders of Real, as applicable.
(2) Promptly after the determination of Real’s annual budget for each calendar year, setting Real shall promptly notify the Investors in writing of the aggregate annual budgeted recurring capital expenditure of Real and its Subsidiaries.
(3) Notwithstanding the foregoing, Real shall not be obligated to provide such access or materials set forth in each case this Section 4.6 if Real, acting in comparative form good faith, determines, in its reasonable judgment based on the figures advice of outside counsel of international standing, that doing so would (x) materially violate applicable securities Laws, (y) jeopardize the protection of an attorney-client privilege or attorney work product protection that could reasonably relate to the information or documents in question, or (z) expose Real to liability for the corresponding period or periods disclosure of (orpersonal information; provided that, in the case of each of clauses (x) through (z), Real shall immediately disclose as much information as possible, and provide the balance sheetInvestors with redacted, substitute or aggregated and/or anonymized documents or information in the most permissive manner that would not result in, as applicable, Real violating the applicable Law in question, losing the ability to assert attorney-client privilege or attorney work product protection or exposing Real to the aforementioned liability.
(4) Each party hereto acknowledges and agrees that the Investor Nominee may share any information concerning Real and its Subsidiaries received by him or her from or on behalf of Real or its designated representatives with the Investors and their Representatives (other than any Persons that are Representatives solely by virtue of being actual or potential sources of debt or equity financing) (subject to the obligation of the end of) Investors and their Representatives to maintain the previous fiscal year;
(d) within 60 days after the end confidentiality of each of the first three fiscal quarters of each fiscal year, its consolidated balance sheet and related statements of income, stockholders' equity and cash flows as of the end of and for such fiscal quarter and the then elapsed portion of the fiscal year, setting forth in each case in comparative form the figures for the corresponding period or periods of (or, in the case of the balance sheet, as of the end of) the budget and previous fiscal year, all certified by one of its Financial Officers as presenting fairly in all material respects the results of operations of the Company on a consolidated basis Confidential Information in accordance with GAAP consistently applied, subject to normal year-end audit adjustments Section 4.5).
(5) Real and the absence of footnotes;
(e) within 30 days after the end of each month which is neither a fiscal year end nor a fiscal quarter end, its consolidated balance sheet and related statements of income, stockholders' equity and cash flows as of the end of and for such month and the then elapsed portion of the fiscal year, setting forth in each case in comparative form the figures for the corresponding period or periods of (or, in the case of the balance sheet, as of the end of) the previous fiscal year, all certified by one of its Financial Officers as presenting fairly in all material respects the results of operations of the Company on a consolidated basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments and the absence of footnotes;
(f) by no later than December 15 of each fiscal year, a budget and business plan for the immediately succeeding fiscal year in the form approved by the Company's board of directors, in form, scope and detail satisfactory to the Purchasers and on a quarterly basis for each fiscal quarter of such succeeding fiscal year;
(g) promptly after the same become publicly available, (to the extent not available through electronic means) copies of all periodic and other reports, proxy statements and other materials filed by the Company or any Subsidiary with the SEC, or any Governmental Agency succeeding to any or all of the functions of the SEC, or with any national securities exchange, or distributed by the Company to its stockholders generallyIssuer shall, as the case Investors may be;
(h) promptly after the same are delivered reasonably request from time to time, provide to the members of the Board of DirectorsInvestors, copies of all business plans and other financial plans relating pursuant to the Company and/or its Subsidiaries; and
(i) promptly following any request therefora management rights letter, such other information regarding management rights as may be necessary for the operations, business affairs Investors’ investment in Real and financial condition the Issuer to continue to qualify as a “venture capital investment” for purposes of the Company or any Subsidiary, or compliance with the terms of the this Agreement or any Related Document, as the Purchasers may reasonably request29 C.F.R. § 2510.3-101.
Appears in 2 contracts
Sources: Investor Rights Agreement (Real Brokerage Inc), Securities Subscription Agreement (Real Brokerage Inc)
Information Rights. The Company shall furnish to each Purchaser who From and after the date hereof, for so long as any Stockholder holds at least 5% seven and one half percent (7.5%) of the Common Stock on a fully diluted as if converted basis (and regardless then outstanding shares of Voting Stock, such Stockholder shall be entitled to each of GE and Midwest if such Purchaser holds at least a majority of receive from the Series B Shares such Purchaser purchased hereunder):Company the following information:
(a) as soon as available after the end of each fiscal year of the Company, and in any event within 105 fifty (50) days after the end of each fiscal year (orof the Company, if required to be filed with the SEC sooner, then concurrently with such filing), its Form 10-K containing its an audited consolidated balance sheet and related statements of income, stockholders' equity and cash flows as of the end of and for such year, setting forth in each case in comparative form the figures for the previous fiscal year, all reported on by PriceWaterhouseCoopers or other independent public accountants of recognized national standing (without any qualification or exception as to the scope of such audit) to the effect that such consolidated financial statements present fairly in all material respects the financial condition and results of operations of the Company and its Subsidiaries as at the end of such year and audited consolidated statements of income, retained earnings and cash flows of the Company and its Subsidiaries on a consolidated basis for such year, certified by certified public accountants of established national reputation selected by the Company, which shall initially be KPMG LLP, and prepared in accordance with GAAP consistently appliedGAAP;
(b) as soon as available after the end of each fiscal quarter of the Company (other than the fourth quarter), and in any event within 105 thirty (30) days after the end of each fiscal year quarter of the Company (or, if required to be filed with other than the SEC sooner, then concurrently with such filingfourth quarter), its an unaudited consolidated balance sheets sheet of the Company and related its Subsidiaries as at the end of such quarter, and unaudited consolidated statements of income, stockholders' equity retained earnings and cash flows as of the Company and its Subsidiaries for such fiscal quarter and for the current fiscal year to the end of and for such yearfiscal quarter, setting forth in each case in comparative form the figures for the previous fiscal year, all certified by one of its Financial Officers as presenting fairly in all material respects the results of operations of the Company on a consolidated basis prepared in accordance with GAAP consistently applied, (subject to normal year-end audit adjustments and the absence of footnotes;notes thereto); and
(c) within 60 days as soon as available after the end of each of the first three fiscal quarters of each fiscal year calendar month and in any event (ori) within five (5) Business Days thereafter, if required to be filed with the SEC sooner, then concurrently with such filing), its Form 10-Q containing its a preliminary unaudited consolidated balance sheet of the Company and related statements of income, stockholders' equity and cash flows its Subsidiaries as of at the end of such month, and for such fiscal quarter and the then elapsed portion preliminary unaudited consolidated statement of the fiscal year, setting forth in each case in comparative form the figures for the corresponding period or periods of (or, in the case of the balance sheet, as of the end of) the previous fiscal year;
(d) within 60 days after the end of each of the first three fiscal quarters of each fiscal year, its consolidated balance sheet and related statements of income, stockholders' equity and cash flows as of the end of and for such fiscal quarter and the then elapsed portion of the fiscal year, setting forth in each case in comparative form the figures for the corresponding period or periods of (or, in the case of the balance sheet, as of the end of) the budget and previous fiscal year, all certified by one of its Financial Officers as presenting fairly in all material respects the results of operations income of the Company on a consolidated basis and its Subsidiaries for such month, prepared in accordance with GAAP consistently applied, (subject to normal year-end audit adjustments and the absence of footnotes;
notes thereto), (eii) within 30 days after ten (10) Business Days thereafter, a final unaudited consolidated balance sheet of the Company and its Subsidiaries as at the end of each month which is neither a fiscal year end nor a fiscal quarter endsuch month, its and final unaudited consolidated balance sheet and related statements statement of income, stockholders' equity and cash flows as of the end of and for such month and the then elapsed portion of the fiscal year, setting forth in each case in comparative form the figures for the corresponding period or periods of (or, in the case of the balance sheet, as of the end of) the previous fiscal year, all certified by one of its Financial Officers as presenting fairly in all material respects the results of operations income of the Company on a consolidated basis and its Subsidiaries for such month, prepared in accordance with GAAP consistently applied, (subject to normal year-end audit adjustments and the absence of footnotes;
notes thereto) and (fiii) by no later than December 15 of each fiscal yearwithin twenty (20) days thereafter, a budget and business plan for the immediately succeeding fiscal year in the form approved by summary of the Company's board of directors, ’s financial performance not to exceed one page in form, scope and detail satisfactory length in a form to the Purchasers and on a quarterly basis for each fiscal quarter of such succeeding fiscal year;
(g) promptly after the same become publicly available, (to the extent not available through electronic means) copies of all periodic and other reports, proxy statements and other materials filed be mutually agreed upon by the Company or any Subsidiary with and the SEC, or any Governmental Agency succeeding to any or all of the functions of the SEC, or with any national securities exchange, or distributed by the Company to its stockholders generally, as the case may be;
(h) promptly after the same are delivered to the members of the Board of Directors, copies of all business plans and other financial plans relating to the Company and/or its Subsidiaries; and
(i) recipients promptly following any request therefor, such other information regarding the operations, business affairs and financial condition execution of the Company or any Subsidiary, or compliance with the terms of the this Agreement or any Related Document, as the Purchasers may reasonably requestAgreement.
Appears in 2 contracts
Sources: Stockholder Agreement, Stockholder Agreement (Realnetworks Inc)
Information Rights. The Company Retek shall furnish deliver to each Purchaser who holds at least 5% of the Common Stock on a fully diluted HNC in such format and media as if converted basis (and regardless to each of GE and Midwest if such Purchaser holds at least a majority of the Series B Shares such Purchaser purchased hereunder):HNC may reasonably request:
(a) as soon as available, but in any event within 105 twenty (20) days after the end of each month and each quarter, a consolidated balance sheet of Retek and its consolidated subsidiaries as of the end of such month or quarter and the related consolidated statements of earnings, stockholders' equity and statement of cash flows for such month or quarter, as the case may be, and for the year to date, setting forth, in each case, in comparative form the figures for the corresponding period of one year earlier, all in reasonable detail and prepared in accordance with generally accepted accounting principles ("GAAP") (except for the omission of footnotes) applied on a consistent basis throughout the periods represented;
(b) as soon as available, but in any event within ninety (90) days after the end of each fiscal year (orof Retek, if required to be filed with the SEC sooner, then concurrently with such filing), its Form 10-K containing its a consolidated audited consolidated balance sheet of Retek and its consolidated subsidiaries as of the end of such fiscal year and the related statements of incomeearnings, stockholders' equity and statement of cash flows as of the end of and for such yearfiscal year setting forth, setting forth in each case in comparative form the figures for the previous fiscal year, all reported on in reasonable detail for audit clearance within HNC. Retek will deliver to HNC within ninety (90) days after the end of each fiscal year such materials accompanied by PriceWaterhouseCoopers or other the report thereon of Retek's independent public accountants of recognized national standing (without any qualification or exception as to the scope of such audit) to the effect auditors, which report shall state that such consolidated financial statements present fairly in all material respects the financial condition and results of operations of the Company Retek and its consolidated Subsidiaries on a consolidated basis subsidiaries as of the close of such fiscal year in accordance conformity with GAAP consistently applied;
(bc) within 105 at least three (3) business days after the end of each fiscal year (or, if required prior to be filed Retek's filing thereof with the SEC sooner, then concurrently with such filing), its consolidated balance sheets and related statements of income, stockholders' equity and cash flows as of the end of and for such year, setting forth in each case in comparative form the figures for the previous fiscal yearSEC, all certified reports, proxy statements, registration statements and other filings made by one of its Financial Officers as presenting fairly in all material respects Retek under the results of operations of Securities Act or the Company on a consolidated basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments and the absence of footnotes;
(c) within 60 days after the end of each of the first three fiscal quarters of each fiscal year (or, if required to be filed with the SEC sooner, then concurrently with such filing), its Form 10-Q containing its consolidated balance sheet and related statements of income, stockholders' equity and cash flows as of the end of and for such fiscal quarter and the then elapsed portion of the fiscal year, setting forth in each case in comparative form the figures for the corresponding period or periods of (or, in the case of the balance sheet, as of the end of) the previous fiscal yearExchange Act;
(d) within 60 days after all written reports, analyses or studies relating to the end business or financial condition of each of the first three fiscal quarters of each fiscal year, its consolidated balance sheet and related statements of income, stockholders' equity and cash flows Retek as of the end of and for such fiscal quarter and the then elapsed portion of the fiscal year, setting forth in each case in comparative form the figures for the corresponding period or periods of (or, in the case of the balance sheet, as of the end of) the budget and previous fiscal year, all certified by one Retek shall deliver to any other holder of its Financial Officers as presenting fairly in all material respects the results of operations of the Company on a consolidated basis in accordance Common Stock, simultaneously with GAAP consistently applied, subject its delivery to normal year-end audit adjustments and the absence of footnotessuch holder;
(e) within 30 as soon as available, but in any event no later than five (5) business days after the end following receipt of each month which is neither a fiscal year end nor a fiscal quarter endrequest by HNC, its consolidated balance sheet and related statements of income, stockholders' equity and cash flows such other information relating to Retek as of the end of and for such month and the then elapsed portion of the fiscal year, setting forth in each case in comparative form the figures for the corresponding period or periods of (orHNC may reasonably request, in connection with the case of the balance sheet, as of the end of) the previous fiscal year, all certified by one reporting of its Financial Officers as presenting fairly ownership interest in all material respects Retek under the results "equity method" of operations of the Company on a consolidated basis accounting in accordance with GAAP consistently appliedor as may otherwise be required by GAAP, subject to normal year-end audit adjustments prepare HNC's own financial statements and reports under the absence of footnotes;Exchange Act and in accordance with GAAP; and
(f) by as soon as practicable, but in any event no later than December 15 of each fiscal year, a budget and two (2) business plan for the immediately succeeding fiscal year in the form approved by the Company's board of directors, in form, scope and detail satisfactory days prior to the Purchasers and on a quarterly basis for each fiscal quarter of such succeeding fiscal year;
(g) promptly after the same become publicly available, (to the extent not available through electronic means) copies of all periodic and other reports, proxy statements and other materials filed by the Company or any Subsidiary with the SEC, or any Governmental Agency succeeding to any or all of the functions of the SEC, or with any national securities exchange, or distributed by the Company to its stockholders generally, as the case may be;
(h) promptly after the same are delivered to the members of the Board of Directorsissuance, copies of substantially final drafts of all business plans press releases and other financial plans relating statements to be made available by Retek or any of its Subsidiaries or to the Company and/or public concerning material developments in the business, properties, earnings, results of operations, financial condition or prospects of Retek or any of its Subsidiaries; and
Subsidiaries or the relationship between (i) promptly following any request therefor, such other information regarding the operations, business affairs and financial condition of the Company Retek or any Subsidiaryof its Subsidiaries and (ii) HNC or any of its Affiliates. In addition, within such two day period prior to the issuance of any such press release or compliance public statement, Retek shall actively consult with HNC regarding any changes (other than typographical or other similar minor changes) to such substantially final drafts. Retek further agrees to review any proposed press release regarding its financial or operating results for any period with the terms audit committee of Retek's Board of Directors and Retek's independent auditors a reasonable amount of time prior to the this Agreement or any Related Document, as the Purchasers may reasonably requestinitial public release of such press release.
Appears in 2 contracts
Sources: Corporate Rights Agreement (Retek Inc), Corporate Rights Agreement (Retek Inc)
Information Rights. The Company shall furnish to each Purchaser who holds at least Holders of not less than a number of shares of Preferred Stock representing 5% of the Common Preferred Stock on a fully diluted as if converted basis (and regardless to each of GE and Midwest if such Purchaser holds at least a majority of then outstanding shall have the Series B Shares such Purchaser purchased hereunder):following rights:
(a) upon reasonable notice to, and at times reasonably convenient for the Corporation, visit and inspect the Corporation’s properties and examine its books of account and records; provided, however, that the Corporation shall not be obligated pursuant to this Section 2(a) to provide access to any information which it reasonably considers to be a trade secret or similar confidential information or which it reasonably believes will result in a waiver of attorney-client or similar privilege;
(b) within 105 120 days after the end of each fiscal year (orof the Corporation, if required to be filed with the SEC sooneran income statement for such fiscal year, then concurrently with such filing), its Form 10-K containing its audited consolidated a balance sheet of the Corporation and related statements statement of income, stockholders' stockholder’s equity and cash flows as of the end of such year and a statement of cash flows for such year, setting forth in each case in comparative form the figures for the previous fiscal such year, all reported on -end financial reports to be audited and certified by PriceWaterhouseCoopers or other a nationally recognized independent public accountants of recognized national standing (without any qualification or exception as accounting firm selected by the Corporation and reasonably acceptable to the scope of such audit) to the effect that such consolidated financial statements present fairly in all material respects the financial condition and results of operations of the Company and its consolidated Subsidiaries on a consolidated basis in accordance with GAAP consistently appliedRequisite Holders;
(bc) within 105 45 days after the end of each fiscal year (orquarter of the Corporation, if required an unaudited balance sheet, statements of income and cash flows and schedule of total expenses by account for such fiscal quarter, including, with respect to be filed with the SEC sooner, then concurrently with such filing), its consolidated balance sheets and related statements of income, stockholders' equity and cash flows as the unaudited comparative statements of income of the end of and for such year, setting forth in each case in comparative form the figures Corporation for the previous fiscal year, all certified by one of its Financial Officers as presenting fairly in all material respects -to-date and the results of operations current budget of the Company on a consolidated basis in accordance with GAAP consistently applied, subject to normal Corporation for the year-end audit adjustments and the absence of footnotes;
(c) within 60 days after the end of each of the first three fiscal quarters of each fiscal year (orto-date, including revised projections, if required to be filed with the SEC sooner, then concurrently with such filing), its Form 10-Q containing its consolidated balance sheet and related statements of income, stockholders' equity and cash flows as of the end of and for such fiscal quarter and the then elapsed portion of the fiscal year, setting forth in each case in comparative form the figures for the corresponding period or periods of (or, in the case of the balance sheet, as of the end of) the previous fiscal yearany;
(d) within 60 30 days after of the end of each month, an unaudited income statement and a statement of the first three fiscal quarters of each fiscal year, its consolidated cash flows and balance sheet for and related statements of income, stockholders' equity and cash flows as of the end of such month, compared to budget and for such fiscal quarter and the then elapsed portion of the fiscal year, setting forth in each case in comparative form the figures for the corresponding comparable period or periods of (or, in the case of the balance sheetprior year (if applicable), as well as a written summary of the end of) the budget and previous fiscal year, all certified by one of its Financial Officers as presenting fairly in all material respects the results of operations of the Company on a consolidated basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments and the absence of footnotesoperations;
(e) within 30 days after prior to the end of each month which is neither a fiscal year end nor a fiscal quarter end, its consolidated balance sheet and related statements of income, stockholders' equity and cash flows as of the end of and for such month and the then elapsed portion of the fiscal year, setting forth in each case in comparative form the figures for the corresponding period or periods of (or, in the case of the balance sheet, as of the end of) the previous fiscal year, all certified by one of its Financial Officers as presenting fairly in all material respects the results of operations of the Company on a consolidated basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments and the absence of footnotes;
(f) by no later than December 15 of each fiscal year, a budget and business plan for the immediately succeeding next fiscal year prepared on a monthly and quarterly basis;
(f) with respect to any proposed Deemed Liquidation (as defined in the form approved by the Company's board of directorsRestated Certificate), in formIPO or other significant corporate event (each, scope and detail satisfactory to the Purchasers and on a quarterly basis for each fiscal quarter “Proposed Transaction”), prior notice of such succeeding fiscal year;Proposed Transaction; and
(g) promptly after the same become publicly available, (with respect to the extent not available through electronic meansfinancial statements discussed in subsections (c) copies and (d) of all periodic and other reportsthis Section 2, proxy statements and other materials filed an instrument executed by the Company chief financial officer or any Subsidiary President of the Corporation and certifying that such financials were prepared in accordance with GAAP consistently applied with prior practice for earlier periods (with the SECexception of footnotes that may be required by GAAP); provided, or any Governmental Agency succeeding to any or all that the foregoing shall not restrict the right of the functions of the SEC, or Corporation to change its accounting principles consistent with any national securities exchange, or distributed by the Company to its stockholders generally, as the case may be;
(h) promptly after the same are delivered to the members of the Board of Directors, copies of all business plans and other financial plans relating to the Company and/or its Subsidiaries; and
(i) promptly following any request therefor, such other information regarding the operations, business affairs and financial condition of the Company or any Subsidiary, or compliance with the terms of the this Agreement or any Related Document, as the Purchasers may reasonably requestGAAP.
Appears in 2 contracts
Sources: Stockholders Agreement (Nevro Corp), Stockholders Agreement (Nevro Corp)
Information Rights. The Company shall furnish Following the Closing and prior to each Purchaser who holds at least 5% the Fall-Away of Investor Board Rights, in order to facilitate (i) the Investor Parties’ compliance with legal and regulatory requirements applicable to the beneficial ownership by the Investor Parties and its Affiliates of equity securities of the Common Stock on a fully diluted as if converted basis Company and (and regardless ii) the Investor Representative’s oversight of the Investor Parties’ investment in the Company, the Company agrees to provide each of GE the Investor Parties and Midwest if such Purchaser holds at least a majority of the Series B Shares such Purchaser purchased hereunder):Investor Representative with the following:
(a) within 105 90 days after the end of each fiscal year of the Company, (orA) an audited, if required to be filed with the SEC sooner, then concurrently with such filing), its Form 10-K containing its audited consolidated balance sheet of the Company and related statements of income, stockholders' equity and cash flows its Subsidiaries as of the end of and for such year, setting forth in each case in comparative form the figures for the previous fiscal year, all reported on by PriceWaterhouseCoopers or other independent public accountants of recognized national standing (without any qualification or exception as to the scope of such auditB) to the effect that such an audited, consolidated financial statements present fairly in all material respects the financial condition and results of operations income statement of the Company and its Subsidiaries for such fiscal year and (C) an audited, consolidated statement of cash flows of the Company and its Subsidiaries for such fiscal year; provided that this requirement shall be deemed to have been satisfied if on a consolidated basis in accordance or prior to such date the Company files its annual report on Form 10-K for the applicable fiscal year with GAAP consistently appliedthe SEC;
(b) within 105 days after the end of each fiscal year (or, if required to be filed with the SEC sooner, then concurrently with such filing), its consolidated balance sheets and related statements of income, stockholders' equity and cash flows as of the end of and for such year, setting forth in each case in comparative form the figures for the previous fiscal year, all certified by one of its Financial Officers as presenting fairly in all material respects the results of operations of the Company on a consolidated basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments and the absence of footnotes;
(c) within 60 45 days after the end of each of the first three fiscal quarters of each fiscal year of the Company, (orA) an unaudited, if required to be filed with the SEC sooner, then concurrently with such filing), its Form 10-Q containing its consolidated balance sheet of the Company and related statements of income, stockholders' equity and cash flows its Subsidiaries as of the end of such fiscal quarter, (B) an unaudited, consolidated income statement of the Company and its Subsidiaries for such fiscal quarter and the then elapsed portion (C) an unaudited, consolidated statement of cash flows of the Company and its Subsidiaries for such fiscal year, setting forth in each case in comparative form quarter; provided that this requirement shall be deemed to have been satisfied if on or prior to such date the figures Company files its quarterly report on Form 10-Q for the corresponding period or periods of (or, in applicable fiscal year with the case of the balance sheet, as of the end of) the previous fiscal yearSEC;
(dc) within 60 days after reasonable access, to the end of each of extent reasonably requested by the first three fiscal quarters of each fiscal yearInvestor Parties or the Investor Representative, its consolidated balance sheet and related statements of income, stockholders' equity and cash flows as of to the end of and for such fiscal quarter offices and the then elapsed portion of the fiscal year, setting forth in each case in comparative form the figures for the corresponding period or periods of (or, in the case of the balance sheet, as of the end of) the budget and previous fiscal year, all certified by one of its Financial Officers as presenting fairly in all material respects the results of operations properties of the Company on a consolidated basis in accordance and its Subsidiaries, including its and their books and records, and to discuss its and their affairs, finances and accounts with GAAP consistently appliedits and their officers, subject to normal year-end audit adjustments all upon reasonable notice and at such reasonable times and as often as the Investor Parties and the absence of footnotes;
(e) within 30 days after Investor Representative may reasonably request; provided that any investigation pursuant to this Section 5.15 shall be conducted in a manner as not to interfere unreasonably with the end of each month which is neither a fiscal year end nor a fiscal quarter end, its consolidated balance sheet and related statements of income, stockholders' equity and cash flows as conduct of the end of and for such month and the then elapsed portion of the fiscal year, setting forth in each case in comparative form the figures for the corresponding period or periods of (or, in the case of the balance sheet, as of the end of) the previous fiscal year, all certified by one of its Financial Officers as presenting fairly in all material respects the results of operations business of the Company on a consolidated basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments and the absence of footnotes;
(f) by no later than December 15 of each fiscal year, a budget and business plan for the immediately succeeding fiscal year in the form approved by the Company's board of directors, in form, scope and detail satisfactory to the Purchasers and on a quarterly basis for each fiscal quarter of such succeeding fiscal year;
(g) promptly after the same become publicly available, (to the extent not available through electronic means) copies of all periodic and other reports, proxy statements and other materials filed by the Company or any Subsidiary with the SEC, or any Governmental Agency succeeding to any or all of the functions of the SEC, or with any national securities exchange, or distributed by the Company to its stockholders generally, as the case may be;
(h) promptly after the same are delivered to the members of the Board of Directors, copies of all business plans and other financial plans relating to the Company and/or its Subsidiaries; and
(d) copies of all material, substantive materials provided to the Board at substantially the same time as provided to the directors of the Company; provided that the Company shall not be obligated to provide such access or materials if the Company determines, in its reasonable judgment, that doing so could (i) promptly following any request thereforviolate or prejudice the rights of its customers, such (ii) result in the disclosure of trade secrets or competitively sensitive information to third parties, (iii) materially violate applicable Law, an applicable order or a Contract or obligation of confidentiality owing to a third party, (iv) jeopardize the protection of an attorney-client privilege, attorney work product protection or other information regarding legal privilege, (v) be materially adverse to the operations, business affairs and financial condition interests of the Company or any Subsidiaryof its Subsidiaries in any pending or threatened Action or (vi) expose the Company to risk of liability for disclosure of personal information. In addition, notwithstanding anything to the contrary contained herein, neither the Company nor any of its Subsidiaries will be required to provide any information or compliance material that relate to, contain or reflect any analyses, studies, notes, memoranda and other information related to or prepared in connection with any Transaction Document or the terms of the this Agreement Transactions or any Related Document, as matters relating thereto or any transactions with or matters relating to the Purchasers may reasonably requestInvestor Parties or any Investor Affiliates.
Appears in 1 contract
Sources: Investment Agreement (CommScope Holding Company, Inc.)
Information Rights. The Company shall furnish to each Purchaser who holds at least 5% of the Common Stock on a fully diluted As long as if converted basis (and regardless to each of GE and Midwest if such Purchaser holds at least a majority any share of the Series B Shares such Purchaser purchased hereunder):A Preferred Stock remains outstanding, the Company shall deliver to each Holder:
(a) within 105 ninety (90) days after the end of each fiscal year of the Company (or, if required which may be extended to be filed with the extent such extension is permitted and such extension is granted by the SEC soonerbut, then concurrently with in any event, no later than 105 days after the end of such filingfiscal year), its Form 10-K containing its audited a consolidated balance sheet of the Company and its Subsidiaries at the end of such fiscal year, and the related consolidated statements of incomeincome or operations, stockholders' ’ equity and cash flows as of the end of and for such fiscal year, setting forth in each case in comparative form the figures for the previous fiscal year, all reported on by PriceWaterhouseCoopers or other independent public accountants of recognized national standing (without any qualification or exception as to the scope of such audit) to the effect that such consolidated financial statements present fairly in all material respects the financial condition reasonable detail and results of operations of the Company and its consolidated Subsidiaries on a consolidated basis prepared in accordance with GAAP consistently appliedGAAP, audited and accompanied by a report and opinion of any independent registered public accounting firm of nationally recognized standing, which report and opinion shall be prepared in accordance with generally accepted auditing standards;
(b) within 105 forty-five (45) days after the end of each of the first three fiscal quarters of each fiscal year of the Company (or, if required which may be extended to be filed with the extent such extension is permitted and such extension is granted by the SEC soonerbut, then concurrently with such filing)in any event, its consolidated balance sheets and related statements of income, stockholders' equity and cash flows as of no later than 60 days after the end of such fiscal quarter), a consolidated balance sheet of the Company and its Subsidiaries as at the end of such fiscal quarter and the related consolidated statements of income or operations for such fiscal quarter and the portion of the fiscal year then ended, setting forth in comparative form the figures for the corresponding fiscal quarter of the previous fiscal year and the corresponding portion of the previous fiscal year, and statements of stockholders’ equity for the current fiscal quarter and consolidated statement of cash flows for the portion of the fiscal year then ended, setting forth in each case in comparative form the figures for the corresponding portion of the previous fiscal year, all in reasonable detail and certified by one the chief executive officer, president, vice president, chief financial officer, treasurer or assistant treasurer or another similar officer of its Financial Officers the Company as fairly presenting fairly in all material respects the financial condition, results of operations operations, stockholders’ equity and cash flows of the Company on a consolidated basis and its Subsidiaries in accordance with GAAP consistently appliedGAAP, subject only to normal year-end audit adjustments and the absence of footnotes;
(c) within 60 days after the end of each of the first three fiscal quarters of each fiscal year (or, if required to be filed with the SEC sooner, then concurrently with such filing), its Form 10-Q containing its consolidated balance sheet and related statements of income, stockholders' equity and cash flows as of the end of and for such fiscal quarter and the then elapsed portion of the fiscal year, setting forth in each case in comparative form the figures for the corresponding period or periods of (or, in the case of the balance sheet, as of the end of) the previous fiscal year;[Reserved]; and
(d) within 60 days after with each set of consolidated financial statements referred to in Section 1.2(a) and Section 1.2(b) above, supplemental unaudited financial information required to provide the end of each of the first three fiscal quarters of each fiscal year, its consolidated balance sheet revenue and related statements of income, stockholders' equity and cash flows as of the end of and for such fiscal quarter and the then elapsed portion of the fiscal year, setting forth in each case in comparative form the figures for the corresponding period or periods of (or, in the case of the balance sheet, as of the end of) the budget and previous fiscal year, all certified by one of its Financial Officers as presenting fairly in all material respects the results of operations assets of the Company and its Subsidiaries as a percentage of the total revenue and assets of the Company and its Subsidiaries as a whole. Notwithstanding the foregoing, the obligations in Section 1.2(a) and Section 1.2(b) may be satisfied with respect to financial information of the Company and its Subsidiaries by furnishing (A) the applicable financial statements of the Company (or any direct or indirect parent of the Company) or (B) the Company’s (or any direct or indirect parent thereof), as applicable, Form 10-K or 10-Q, as applicable, filed with the SEC; provided that, with respect to clauses (A) and (B),(i) to the extent such information relates to a parent of the Company, such information is accompanied by consolidating information that explains in reasonable detail the differences between the information relating to such parent, on the one hand, and the information relating the Company and its Subsidiaries on a consolidated basis stand-alone basis, on the other hand, and (ii) to the extent such information is in lieu of information required to be provided under clause (a) of this Section 1.2, such materials are accompanied by a report and opinion of any independent registered public accounting firm of nationally recognized standing, which report and opinion shall be prepared in accordance with GAAP consistently appliedgenerally accepted auditing standards. Documents required to be delivered pursuant to this Section 1.2 may be delivered electronically and, subject if so delivered, shall be deemed to normal year-end audit adjustments and have been delivered on the absence of footnotes;
(e) within 30 days after the end of each month which is neither a fiscal year end nor a fiscal quarter end, its consolidated balance sheet and related statements of income, stockholders' equity and cash flows as of the end of and for such month and the then elapsed portion of the fiscal year, setting forth in each case in comparative form the figures for the corresponding period or periods of (or, in the case of the balance sheet, as of the end of) the previous fiscal year, all certified by one of its Financial Officers as presenting fairly in all material respects the results of operations of the Company on a consolidated basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments and the absence of footnotes;
(f) by no later than December 15 of each fiscal year, a budget and business plan for the immediately succeeding fiscal year in the form approved by the Company's board of directors, in form, scope and detail satisfactory to the Purchasers and on a quarterly basis for each fiscal quarter of such succeeding fiscal year;
(g) promptly after the same become publicly available, (to the extent not available through electronic means) copies of all periodic and other reports, proxy statements and other materials filed by the Company or any Subsidiary with the SEC, or any Governmental Agency succeeding to any or all of the functions of the SEC, or with any national securities exchange, or distributed by the Company to its stockholders generally, as the case may be;
(h) promptly after the same are delivered to the members of the Board of Directors, copies of all business plans and other financial plans relating to the Company and/or its Subsidiaries; and
date (i) promptly following on which (x) such documents become available on the SEC’s Electronic Data Gathering Analysis and Retrieval (“▇▇▇▇▇”) website or (y) the Company (or any request therefor, such other information regarding the operations, business affairs and financial condition direct or indirect parent of the Company or any SubsidiaryCompany) posts such documents, or compliance with provides a link thereto on its website; or (ii) on which such documents are posted on the terms Company’s behalf on IntraLinks/IntraAgency or another relevant website, if any, to which each Holder has access. Each Holder shall be solely responsible for timely accessing posted documents and maintaining its copies of the this Agreement or any Related Document, as the Purchasers may reasonably requestsuch documents.
Appears in 1 contract
Sources: Series a Investors Rights Agreement (Clear Channel Outdoor Holdings, Inc.)
Information Rights. The Company shall furnish to each Purchaser who hereby covenants and agrees that, commencing on the date of this Agreement, and for so long as any Investor holds at least 5% of 10,000,000 Preferred Shares, the Common Stock on a fully diluted as if converted basis Company will deliver to such Investor the following with respect to itself and their respective Subsidiaries: (i) audited annual consolidated financial statements within one hundred and regardless to each of GE and Midwest if such Purchaser holds at least a majority of the Series B Shares such Purchaser purchased hereunder):
twenty (a120) within 105 days after the end of each fiscal year (oryear, if required to be filed with the SEC sooner, then concurrently with such filing), its Form 10-K containing its including an audited consolidated balance sheet and related statements of income, stockholders' equity and cash flows as of the end of such year and a consolidated statement of operation and a consolidated statement of cash flows for such year, setting forth in each case in comparative form the figures for the previous fiscal year, all reported on by PriceWaterhouseCoopers or other independent public accountants of recognized national standing (without any qualification or exception as to the scope of such audit) to the effect that such consolidated financial statements present fairly in all material respects the financial condition and results of operations of the Company and its consolidated Subsidiaries on a consolidated basis in accordance with GAAP consistently applied;
(b) within 105 days after the end of each fiscal year (or, if required to be filed with the SEC sooner, then concurrently with such filing), its consolidated balance sheets and related statements of income, stockholders' equity and cash flows as of the end of and for such year, setting forth in each case in comparative form the figures for the previous fiscal year, all certified by one of its Financial Officers as presenting fairly in all material respects the results of operations of the Company on a consolidated basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments and the absence of footnotes;
(c) within 60 days after the end of each of the first three fiscal quarters of each fiscal year (or, if required to be filed with the SEC sooner, then concurrently with such filing), its Form 10-Q containing its consolidated balance sheet and related statements of income, stockholders' equity and cash flows as of the end of and for such fiscal quarter and the then elapsed portion of the fiscal year, setting forth in each case in comparative form the figures from the Company’s previous fiscal year, and audited by a “Big 4” accounting firm approved by the Investors; (ii) unaudited quarterly consolidated financial statements within thirty (30) days of the end of each fiscal quarter, including an unaudited balance sheet as of the end of such quarter, and an unaudited statement of operations and an unaudited statement of cash flows of the Company, for such quarter, together with a comparison to the Company’s operating plan and budget by the Chief Financial Officer of the Company explaining any significant differences in the statements from the Company’s operating plan and budget for the corresponding period and stating that such statements fairly present the consolidated financial position and consolidated financial result of the Company for the fiscal quarter covered; (iii) unaudited monthly consolidated financial statements within thirty (30) days of the end of each month, including an unaudited balance sheet as of the end of each such month, and an unaudited statement of operations and an unaudited statement of cash flows for such month; (iv) an annual consolidated budget for the following fiscal year within forty-five (45) days prior to the end of each fiscal year; (v) copies of the entity’s annual reports to shareholders and any quarterly, interim, annual, extraordinary or periods other reports (including reports on Forms 20-F, 6-K, 10-K, 10-Q and/or 8-K, as applicable) promptly after such documents are filed with the appropriate securities exchange or regulatory authority; (vi) copies of all documents or other information sent to all other shareholders as such; and (orvii) upon the written request by the Investor, such other information as the Investor shall reasonably request. All financial statements to be provided to the Investors pursuant to this Section 2.1 and pursuant to any other Transaction Agreements, including any in the Agreed M&A, shall be prepared in the English language in conformance with US GAAP, as amended and interpreted from time to time, and in the case of the balance sheet, as financial statements of the end of) the previous fiscal year;
(d) within 60 days after the end of each of the first three fiscal quarters of each fiscal yearCompany, its consolidated balance sheet and related statements of incomeif requested by an Investor, stockholders' equity and cash flows as of the end of and for such fiscal quarter and the then elapsed portion of the fiscal year, setting forth in each case in comparative form the figures for the corresponding period or periods of (or, in the case of the balance sheet, as of the end of) the budget and previous fiscal year, all certified by one of its Financial Officers as presenting fairly in all material respects the results of operations of the Company on a consolidated basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments and the absence of footnotes;
(e) within 30 days after the end of each month which is neither a fiscal year end nor a fiscal quarter end, its consolidated balance sheet and related statements of income, stockholders' equity and cash flows as of the end of and for such month and the then elapsed portion of the fiscal year, setting forth in each case in comparative form the figures for the corresponding period or periods of (or, in the case of the balance sheet, as of the end of) the previous fiscal year, all certified by one of its Financial Officers as presenting fairly in all material respects the results of operations of the Company on a consolidated basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments and the absence of footnotes;
(f) by no later than December 15 of each fiscal year, a budget and business plan for the immediately succeeding fiscal year in the form approved by the Company's board of directors, in form, scope and detail satisfactory to the Purchasers and on a quarterly basis for each fiscal quarter of such succeeding fiscal year;
(g) promptly after the same become publicly available, (to the extent not available through electronic means) copies of all periodic and other reports, proxy statements and other materials filed by the Company or any Subsidiary with the SEC, or any Governmental Agency succeeding to any or shall consolidate all of the functions consolidated financial results of the SEC, or with any national securities exchange, or distributed by the Company to its stockholders generally, as the case may be;
(h) promptly after the same are delivered to the members of the Board of Directors, copies of all business plans and other financial plans relating to the Company and/or its Subsidiaries; and
(i) promptly following any request therefor, such other information regarding the operations, business affairs and financial condition of the Company or any Subsidiary, or compliance with the terms of the this Agreement or any Related Document, as the Purchasers may reasonably requestGroup Companies.
Appears in 1 contract
Sources: Investors’ Rights Agreement
Information Rights. The Company shall furnish to each Purchaser who holds at least 5% of the Common Stock on a fully diluted as if converted basis (and regardless to each of GE and Midwest if such Purchaser holds at least a majority of the Series B Shares such Purchaser purchased hereunder):Purchaser:
(a) within 105 90 days after the end of each fiscal year (or, if required to be filed with the SEC sooner, then concurrently with such filing)year, its Form 10-K containing its audited consolidated balance sheet and related statements of income, stockholders' equity and cash flows as of the end of and for such year, setting forth in each case in comparative form the figures for the previous fiscal year, all reported on by PriceWaterhouseCoopers PricewaterhouseCoopers LLP or other independent public accountants of recognized national standing (without a "going concern" or like qualification or exception and without any qualification or exception as to the scope of such audit) to the effect that such consolidated financial statements present fairly in all material respects the financial condition and results of operations of the Company and its consolidated Subsidiaries on a consolidated basis in accordance with GAAP consistently applied;
(b) within 105 90 days after the end of each fiscal year year, (or, if required to be filed with the SEC sooner, then concurrently with such filing), i) its consolidated consolidating balance sheets and related statements of income, stockholders' equity and cash flows as of the end of and for such year, setting forth in each case in comparative form the figures for the previous fiscal yearyear and (ii) an unaudited income statement for each of the Company's business lines, all certified by one of its Financial Officers as presenting fairly in all material respects the results of operations of the Company on a consolidated consolidating basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments and the absence of footnotes;
(c) within 60 45 days after the end of each of the first three fiscal quarters of each fiscal year (or, if required to be filed with the SEC sooner, then concurrently with such filing)year, its Form 10-Q containing its consolidated balance sheet and related statements of income, stockholders' equity and cash flows as of the end of and for such fiscal quarter and the then elapsed portion of the fiscal year, setting forth in each case in comparative form the figures for the corresponding period or periods of (or, in the case of the balance sheet, as of the end of) the previous fiscal year;
(d) within 60 45 days after the end of each of the first three fiscal quarters of each fiscal year, (i) its consolidated consolidating balance sheet and related statements of income, stockholders' equity and cash flows as of the end of and for such fiscal quarter and the then elapsed portion of the fiscal year, setting forth in each case in comparative form the figures for the corresponding period or periods of (or, in the case of the balance sheet, as of the end of) the budget and previous fiscal yearyear and (ii) an unaudited income statement for each of the Company's business lines, all certified by one of its Financial Officers as presenting fairly in all material respects the results of operations of the Company on a consolidated consolidating basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments and the absence of footnotes;
(e) within 30 days after the end concurrently with any delivery of each month which is neither financial statements under clauses (a) or (c) above, a fiscal year end nor certificate of a fiscal quarter end, its consolidated balance sheet and related statements of income, stockholders' equity and cash flows as of the end of and for such month and the then elapsed portion of the fiscal year, setting forth in each case in comparative form the figures for the corresponding period or periods of (or, in the case of the balance sheet, as of the end of) the previous fiscal year, all certified by one of its Financial Officers as presenting fairly in all material respects the results of operations Officer of the Company (i) certifying as to whether an Event of Noncompliance has occurred and, if an Event of Noncompliance has occurred, specifying the details thereof and any action taken or proposed to be taken with respect thereto, (ii) setting forth reasonably detailed calculations demonstrating compliance with Sections 9.1(b), 9.1(c), 9.1(d) and 9.2(a) of this Agreement, and (iii) stating whether any change in GAAP or in the application thereof has occurred since the Most Recent Balance Sheet Date and, if any such change has occurred, specifying the effect of such change on a consolidated basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments and the absence of footnotesfinancial statements accompanying such certificate;
(f) concurrently with any delivery of financial statements under clause (a) above, a certificate of the accounting firm that reported on such financial statements stating whether they obtained knowledge during the course of their examination of such financial statements of any Event of Noncompliance (which certificate may be limited to the extent required by accounting rules or guidelines);
(g) by no later than December 15 31 of each fiscal year, a budget and business plan for the immediately succeeding fiscal year in the form approved by the Company's board of directors, together with a business forecast for such succeeding fiscal year, all in form, scope and detail satisfactory to the Purchasers and on a quarterly basis for each fiscal quarter of such succeeding fiscal year;
; (gh) promptly after the same become publicly available, (to the extent not available through electronic means) copies of all periodic and other reports, proxy statements and other materials filed by the Company or any Subsidiary with the SEC, or any Governmental Agency succeeding to any or all of the functions of the SEC, or with any national securities exchange, or distributed by the Company to its stockholders generally, as the case may be;
(hi) promptly after the same are delivered to the members of the Board of Directors, copies of all business plans and other financial plans relating to the Company and/or its Subsidiaries; and
(ij) promptly following any request therefor, such other information regarding the operations, business affairs and financial condition of the Company or any Subsidiary, or compliance with the terms of the this Agreement or any Related Document, as the Purchasers such Purchaser may reasonably request.
Appears in 1 contract
Sources: Series B Convertible Preferred Stock and Warrant Purchase Agreement (Sandler Capital Management)
Information Rights. The Company shall furnish to each Purchaser who holds at least 5% of the Common Stock on a fully diluted as if converted basis (and regardless to each of GE and Midwest if such Purchaser holds at least a majority of the Series B Shares such Purchaser purchased hereunder):Purchaser:
(a) within 105 90 days after the end of each fiscal year (or, if required to be filed with the SEC sooner, then concurrently with such filing)year, its Form 10-K containing its audited consolidated balance sheet and related statements of income, stockholders' equity and cash flows as of the end of and for such year, setting forth in each case in comparative form the figures for the previous fiscal year, all reported on by PriceWaterhouseCoopers PricewaterhouseCoopers LLP or other independent public accountants of recognized national standing (without a "going concern" or like qualification or exception and without any qualification or exception as to the scope of such audit) to the effect that such consolidated financial statements present fairly in all material respects the financial condition and results of operations of the Company and its consolidated Subsidiaries on a consolidated basis in accordance with GAAP consistently applied;
(b) within 105 90 days after the end of each fiscal year year, (or, if required to be filed with the SEC sooner, then concurrently with such filing), i) its consolidated consolidating balance sheets and related statements of income, stockholders' equity and cash flows as of the end of and for such year, setting forth in each case in comparative form the figures for the previous fiscal yearyear and (ii) an unaudited income statement for each of the Company's business lines, all certified by one of its Financial Officers as presenting fairly in all material respects the results of operations of the Company on a consolidated consolidating basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments and the absence of footnotes;
(c) within 60 45 days after the end of each of the first three fiscal quarters of each fiscal year (or, if required to be filed with the SEC sooner, then concurrently with such filing)year, its Form 10-Q containing its consolidated balance sheet and related statements of income, stockholders' equity and cash flows as of the end of and for such fiscal quarter and the then elapsed portion of the fiscal year, setting forth in each case in comparative form the figures for the corresponding period or periods of (or, in the case of the balance sheet, as of the end of) the previous fiscal year;
(d) within 60 45 days after the end of each of the first three fiscal quarters of each fiscal year, (i) its consolidated consolidating balance sheet and related statements of income, stockholders' equity and cash flows as of the end of and for such fiscal quarter and the then elapsed portion of the fiscal year, setting forth in each case in comparative form the figures for the corresponding period or periods of (or, in the case of the balance sheet, as of the end of) the budget and previous fiscal yearyear and (ii) an unaudited income statement for each of the Company's business lines, all certified by one of its Financial Officers as presenting fairly in all material respects the results of operations of the Company on a consolidated consolidating basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments and the absence of footnotes;
(e) within 30 days after the end concurrently with any delivery of each month which is neither financial statements under clauses (a) or (c) above, a fiscal year end nor certificate of a fiscal quarter end, its consolidated balance sheet and related statements of income, stockholders' equity and cash flows as of the end of and for such month and the then elapsed portion of the fiscal year, setting forth in each case in comparative form the figures for the corresponding period or periods of (or, in the case of the balance sheet, as of the end of) the previous fiscal year, all certified by one of its Financial Officers as presenting fairly in all material respects the results of operations Officer of the Company (i) certifying as to whether an Event of Noncompliance has occurred and, if an Event of Noncompliance has occurred, specifying the details thereof and any action taken or proposed to be taken with respect thereto, (ii) setting forth reasonably detailed calculations demonstrating compliance with Sections 9.1(b), 9.1(c), 9.1(d) and 9.2(a) of this Agreement, and (iii) stating whether any change in GAAP or in the application thereof has occurred since the Most Recent Balance Sheet Date and, if any such change has occurred, specifying the effect of such change on a consolidated basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments and the absence of footnotesfinancial statements accompanying such certificate;
(f) concurrently with any delivery of financial statements under clause (a) above, a certificate of the accounting firm that reported on such financial statements stating whether they obtained knowledge during the course of their examination of such financial statements of any Event of Noncompliance (which certificate may be limited to the extent required by accounting rules or guidelines);
(g) by no later than December 15 31 of each fiscal year, a budget and business plan for the immediately succeeding fiscal year in the form approved by the Company's board of directors, together with a business forecast for such succeeding fiscal year, all in form, scope and detail satisfactory to the Purchasers and on a quarterly basis for each fiscal quarter of such succeeding fiscal year;
(gh) promptly after the same become publicly available, (to the extent not available through electronic means) copies of all periodic and other reports, proxy statements and other materials filed by the Company or any Subsidiary with the SEC, or any Governmental Agency succeeding to any or all of the functions of the SEC, or with any national securities exchange, or distributed by the Company to its stockholders generally, as the case may be;
(hi) promptly after the same are delivered to the members of the Board of Directors, copies of all business plans and other financial plans relating to the Company and/or its Subsidiaries; and
(ij) promptly following any request therefor, such other information regarding the operations, business affairs and financial condition of the Company or any Subsidiary, or compliance with the terms of the this Agreement or any Related Document, as the Purchasers such Purchaser may reasonably request.
Appears in 1 contract
Sources: Series B Convertible Preferred Stock and Warrant Purchase Agreement (Penton Media Inc)
Information Rights. The Company shall furnish to each Purchaser who holds As long as the Investor and its Affiliates Beneficially Own in the aggregate at least 510% of the outstanding Common Stock on a fully diluted as if converted basis (and regardless to each of GE the Investor is bound by an agreement with the Company containing customary terms regarding the non-disclosure and Midwest if such Purchaser holds at least a majority non-use of the Series B Shares such Purchaser purchased hereunder):
Company s confidential information, (a) the Company will deliver to the Investor: (i) as soon as available and in any event within 105 thirty (30) days after the end of each month of each fiscal year (orof the Company, if required to be filed with the SEC sooner, then concurrently with such filing), its Form 10-K containing its audited a consolidated balance sheet and related statements of income, stockholders' equity and cash flows the Companies as of the end of and for such yearperiod, setting forth in each case in comparative form the figures for the previous fiscal year, all reported on by PriceWaterhouseCoopers or other independent public accountants of recognized national standing (without any qualification or exception as to the scope of such audit) to the effect that such consolidated financial statements present fairly in all material respects the financial condition and results of operations of the Company and its consolidated Subsidiaries on a consolidated basis in accordance with GAAP consistently applied;
(b) within 105 days after the end statement of each fiscal year (or, if required to be filed with the SEC sooner, then concurrently with such filing), its consolidated balance sheets and related statements of income, stockholders' equity income and cash flows as of the end of Companies for the period then ended and operating results on a management basis for the Companies for such yearperiod, setting forth each prepared in each case in comparative form the figures for the previous fiscal yearconformity with GAAP, all certified by one of its Financial Officers as presenting fairly in all material respects the results of operations of the Company applied on a consolidated basis consistent basis, except as otherwise noted therein; (ii) as soon as available and in accordance with GAAP consistently applied, subject to normal year-end audit adjustments and the absence of footnotes;
any event within forty- five (c45) within 60 days after the end of each of the first three fiscal (3) quarters of each fiscal year (orof the Company, if required to be filed with the SEC sooner, then concurrently with such filing), its Form 10-Q containing its a consolidated balance sheet and related statements of income, stockholders' equity and cash flows the Companies as of the end of such period and for such fiscal quarter a consolidated statement of income and the then elapsed portion cash flows of the fiscal year, setting forth in each case in comparative form the figures Companies for the corresponding period or periods of then ended prepared in conformity with GAAP, applied on a consistent basis, except as otherwise noted therein; (or, iii) as soon as available and in the case of the balance sheet, as of the end ofany event within ninety (90) the previous fiscal year;
(d) within 60 days after the end of each fiscal year of the first three fiscal quarters of each fiscal yearCompany, its a consolidated balance sheet and related statements of income, stockholders' equity and cash flows the Companies as of the end of such year and for such fiscal quarter and the then elapsed portion of the fiscal year, setting forth in each case in comparative form the figures for the corresponding period or periods of (or, in the case of the balance sheet, as of the end of) the budget and previous fiscal year, all certified by one of its Financial Officers as presenting fairly in all material respects the results of operations of the Company on a consolidated basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments and the absence of footnotes;
(e) within 30 days after the end of each month which is neither a fiscal year end nor a fiscal quarter end, its consolidated balance sheet and related statements of income, stockholders' equity income and cash flows as of the end of and for such month and the then elapsed portion of the fiscal year, setting forth in each case in comparative form the figures Companies for the corresponding period or periods of (oryear then ended prepared in conformity with GAAP, in the case of the balance sheet, as of the end of) the previous fiscal year, all certified by one of its Financial Officers as presenting fairly in all material respects the results of operations of the Company applied on a consolidated basis in accordance consistent basis, except as otherwise noted therein, together with GAAP consistently applied, subject to normal year-end audit adjustments and the absence an auditor s report thereon from a firm of footnotes;
established national reputation; (fiv) by no later than December 15 of each fiscal year, a budget and business plan for the immediately succeeding fiscal year in the form approved by the Company's board of directors, in form, scope and detail satisfactory to the Purchasers and on a quarterly basis for each fiscal quarter of such succeeding fiscal year;
(g) promptly after the same become publicly available, (to the extent not available through electronic means) copies any of all periodic the Companies is required by law or pursuant to the terms of any outstanding indebtedness of any of the Companies to prepare such reports, any annual reports, quarterly reports and other reports, proxy statements and other materials filed by periodic reports pursuant to Section 13 or 15(d) of the Company or any Subsidiary with the SECSecurities Act, or any Governmental Agency succeeding to similar securities laws of any other country or all of the functions of the SECjurisdiction, or actually prepared by such Company promptly upon their becoming available; and (v) with any national securities exchange, or distributed by the Company to its stockholders generally, as the case may be;
(h) promptly after the same are delivered to the members of the Board of Directors, copies of all business plans and other financial plans relating to the Company and/or its Subsidiaries; and
(i) promptly following any request thereforreasonable promptness, such other data and information as from time to time may be reasonably requested by the Investor (including monthly management or flash reports); and (b) to the extent permitted by applicable Law, the Class B Directors shall be permitted to provide to the Investor any information regarding the operations, business affairs and financial condition of the Company or any Subsidiary, or compliance with the terms of the this Agreement or any Related Document, as the Purchasers may reasonably requestCompanies.
Appears in 1 contract
Sources: Investment Agreement
Information Rights. The So long as the Purchasers or one or more of their Affiliates hold at least 50% of the number of shares of Common Stock issued or issuable upon conversion of the Series C Shares purchased at the closing, the Company shall furnish to each Purchaser who holds at least 5% holder of the Underlying Common Stock on a fully diluted as if converted basis (and regardless to each of GE and Midwest if such Purchaser holds at least a majority of the Series B Shares such Purchaser purchased hereunder):Stock:
(a) within 105 90 days after the end of each fiscal year (or, if required to be filed with the SEC sooner, then concurrently with such filing)year, its Form 10-K (or, if the Company is no longer subject to the requirements of the Exchange Act, provide reports in substantially the same form and at the same times as would be required if it were subject to the Exchange Act) containing its audited consolidated balance sheet and related statements of income, stockholders' ’ equity and cash flows as of the end of and for such year, setting forth in each case in comparative form the figures for the previous fiscal year, all reported on by PriceWaterhouseCoopers PricewaterhouseCoopers LLP or other independent public accountants of recognized national standing (without a “going concern” or similar qualification relating to the questionable value of assets because of concerns regarding survivability and without any qualification or exception as to the scope of such audit) to the effect that such consolidated financial statements present fairly in all material respects the financial condition and results of operations of the Company and its consolidated Subsidiaries Group on a consolidated basis in accordance with GAAP consistently applied;
(b) within 105 days after the end of each fiscal year (or, if required to be filed with the SEC sooner, then concurrently with such filing), its consolidated balance sheets and related statements of income, stockholders' equity and cash flows as of the end of and for such year, setting forth in each case in comparative form the figures for the previous fiscal yearGAAP, all certified by one of its Financial Officers as presenting fairly in all material respects the results of operations of the Company on a consolidated consolidating basis in accordance with GAAP consistently appliedGAAP, subject to normal year-end audit adjustments and the absence of footnotes;
(cb) within 60 45 days after the end of each of the first three fiscal quarters of each fiscal year (or, if required to be filed with the SEC sooner, then concurrently with such filing)year, its Form 10-Q (or, if the Company is no longer subject to the requirements of the Exchange Act, provide reports in substantially the same form and at the same times as would be required if it were subject to the Exchange Act) containing its consolidated balance sheet and related statements of income, stockholders' ’ equity and cash flows as of the end of and for such fiscal quarter and the then elapsed portion of the fiscal year, setting forth in each case in comparative form the figures for the corresponding period or periods of (or, in the case of the balance sheet, as of the end of) the previous fiscal year;
(d) within 60 days after the end of each of the first three fiscal quarters of each fiscal year, its consolidated balance sheet and related statements of income, stockholders' equity and cash flows as of the end of and for such fiscal quarter and the then elapsed portion of the fiscal year, setting forth in each case in comparative form the figures for the corresponding period or periods of (or, in the case of the balance sheet, as of the end of) the budget and previous fiscal year, all certified by one of its Financial Officers as presenting fairly in all material respects the results of operations of the Company on a consolidated consolidating basis in accordance with GAAP consistently appliedGAAP, subject to normal year-end audit adjustments and the absence of footnotes;
(ec) within 30 days after the end of each month which is neither month, a fiscal year end nor a fiscal quarter end, its consolidated balance sheet and related statements of income, stockholders' ’ equity and cash flows as of the end of and for such month and the then elapsed portion of the fiscal year, setting forth in each case in comparative form the figures for the corresponding period or periods of (or, in the case of the balance sheet, as of the end of) the previous fiscal year, all certified by one of its Financial Officers as presenting fairly in all material respects the results of operations of the Company on a consolidated consolidating basis in accordance with GAAP consistently appliedGAAP, subject to normal year-end audit adjustments and the absence of footnotes;
(fd) concurrently with any delivery of financial statements under clauses (a) or (b) above, a certificate of a Financial Officer of the Company (i) certifying as to whether a Remedy Event has occurred or any other material breach of a representation, warranty or covenant contained in this Agreement has occurred and, if a Remedy Event or any such breach has occurred, specifying the details thereof and any action taken or proposed to be taken with respect thereto and (ii) stating whether any change in GAAP or in the application thereof has occurred since the Most Recent Balance Sheet Date and, if any such change has occurred, specifying the effect of such change on the financial statements accompanying such certificate;
(e) by no later than December 15 September 30 of each fiscal year, a budget and business plan for the immediately succeeding fiscal year in the form approved by the Company's board Board of directors, in form, scope and detail satisfactory to the Purchasers and on a quarterly basis for each fiscal quarter of such succeeding fiscal yearDirectors;
(gf) promptly after the same become publicly available, (to the extent not available through electronic means) copies of all periodic and other reports, proxy statements and other materials filed by any member of the Company or any Subsidiary Group with the SEC, or any Governmental Agency succeeding to any or all of the functions of the SEC, or with any national securities exchangeexchange (including AMEX), or distributed by the Company to its stockholders generally, as the case may be;
(h) promptly after the same are delivered to the members of the Board of Directors, copies of all business plans and other financial plans relating to the Company and/or its Subsidiaries; and
(ig) promptly following any request therefor, such other information regarding the operations, business affairs and financial condition of any member of the Company or any SubsidiaryGroup, or compliance with the terms of the this Agreement or any Related Document, as the Purchasers any Purchaser may reasonably request.
Appears in 1 contract
Sources: Series C Convertible Preferred Stock and Warrant Purchase Agreement (SoftBrands, Inc.)
Information Rights. The Subject to the obligations set forth in Section 13 hereof, so long as any Member holds, and continues to hold, any Series A Shares (and in the case of a Management Investor, such Management Investor continues to be an employee of the Company or its Subsidiaries), the Company shall furnish deliver, or cause to each Purchaser who holds at least 5% of the Common Stock on a fully diluted as if converted basis (and regardless be delivered to each of GE and Midwest if such Purchaser holds at least a majority of the Series B Shares such Purchaser purchased hereunder):Member:
(a) within 105 forty-five (45) days after the end of each of the first two months of any fiscal year (orquarter, if required to be filed with the SEC sooner, then concurrently with such filing), its Form 10-K containing its audited an unaudited consolidated balance sheet of the Company and its Subsidiaries as of the last day of such fiscal month and the related statements of income, stockholders' equity income and cash flows as flow for that portion of such fiscal year then-ending, in each case, commencing with the first full fiscal month ending after the one year anniversary of the end of and for such yeardate hereof, setting forth in each case in comparative form the figures for the previous corresponding period in the prior fiscal year, all reported on by PriceWaterhouseCoopers or other independent public accountants of recognized national standing (without any qualification or exception as to the scope of such audit) to the effect that such consolidated which financial statements present fairly in all material respects the financial condition and results of operations of the Company and its consolidated Subsidiaries on a consolidated basis shall be prepared in accordance with GAAP consistently appliedapplied (subject to normal year-end adjustments and the absence of footnotes);
(b) within 105 days after the end of each fiscal year forty-five (or, if required to be filed with the SEC sooner, then concurrently with such filing), its consolidated balance sheets and related statements of income, stockholders' equity and cash flows as of the end of and for such year, setting forth in each case in comparative form the figures for the previous fiscal year, all certified by one of its Financial Officers as presenting fairly in all material respects the results of operations of the Company on a consolidated basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments and the absence of footnotes;
(c45) within 60 days after the end of each of the first three (3) fiscal quarters of each any fiscal year of the Company, and within sixty (or60) days after the end of the fiscal quarter ending September 30, if required to be filed with 2008 and the SEC soonerlast fiscal quarter of any such fiscal year, then concurrently with such filing), its Form 10-Q containing its an unaudited consolidated balance sheet of the Company and related statements of income, stockholders' equity and cash flows its Subsidiaries as of the end last day of and for such fiscal quarter and the then elapsed related statements of income and cash flow for that portion of such fiscal year then-ending (except that no cash flow statements shall be required for the fiscal yearquarter ending September 30, 2008), in each case in each case, commencing with such financial statements for the first full fiscal month ending after the one year anniversary of the date hereof, setting forth in each case in comparative form the figures for the corresponding period or periods of (or, in the case prior fiscal year, which financial statements shall be prepared in accordance with GAAP consistently applied (subject to normal year-end adjustments and the absence of footnotes); and
(c) within one hundred fifty (150) days after the end of the balance sheetfiscal year ending December 31, as of the end of2008 and one hundred twenty (120) the previous fiscal year;
(d) within 60 days after the end of each fiscal year of the first three fiscal quarters of each fiscal yearCompany thereafter, its an audited consolidated balance sheet of the Company and its Subsidiaries as of the last day of such fiscal year and the related statements of income, stockholders' equity income and cash flows as of the end of and flow for such fiscal quarter year (except that such financial statements for fiscal year ending December 31, 2008 shall include the Company and its Subsidiaries (other than ChartOne, Inc.) for the then elapsed portion of full year, and ChartOne, Inc. for the period commencing on the date hereof through December 31, 2008), in each case, commencing with the fiscal yearyear ending December 31, 2010, setting forth in each case in comparative form the figures for the corresponding period or periods of (or, in the case of the balance sheet, as of the end of) the budget and previous prior fiscal year, all certified by one of its Financial Officers as presenting fairly in all material respects the results of operations of the Company on a consolidated basis which financial statements shall be prepared in accordance with GAAP consistently appliedapplied and shall be certified without qualification, subject to normal year-end audit adjustments and the absence by an independent certified public accounting firm of footnotes;
(e) within 30 days after the end of each month which is neither a fiscal year end nor a fiscal quarter end, its consolidated balance sheet and related statements of income, stockholders' equity and cash flows as of the end of and for such month and the then elapsed portion of the fiscal year, setting forth in each case in comparative form the figures for the corresponding period or periods of (or, in the case of the balance sheet, as of the end of) the previous fiscal year, all certified by one of its Financial Officers as presenting fairly in all material respects the results of operations of the Company on a consolidated basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments and the absence of footnotes;
(f) by no later than December 15 of each fiscal year, a budget and business plan for the immediately succeeding fiscal year in the form approved by the Company's board of directors, in form, scope and detail satisfactory to the Purchasers and on a quarterly basis for each fiscal quarter of such succeeding fiscal year;
(g) promptly after the same become publicly available, (to the extent not available through electronic means) copies of all periodic and other reports, proxy statements and other materials filed national standing selected by the Company or any Subsidiary with the SEC, or any Governmental Agency succeeding to any or all of the functions of the SEC, or with any national securities exchange, or distributed by the Company to its stockholders generally, as the case may be;
(h) promptly after the same are delivered to the members of the Board of Directors, copies of all business plans and other financial plans relating to the Company and/or its Subsidiaries; and
(i) promptly following any request therefor, such other information regarding the operations, business affairs and financial condition of the Company or any Subsidiary, or compliance with the terms of the this Agreement or any Related Document, as the Purchasers may reasonably request.
Appears in 1 contract
Sources: Members Agreement
Information Rights. The Company During the Performance Periods, Purchaser shall furnish deliver the following to each Purchaser who holds at least 5% of the Common Stock on a fully diluted as if converted basis (and regardless to each of GE and Midwest if such Purchaser holds at least a majority of the Series B Shares such Purchaser purchased hereunder):Seller:
(a) as soon as available but in any event within 105 45 days after the end of each quarterly accounting period in each fiscal year (or, if required to be filed with including the SEC sooner, then concurrently with such filingfourth quarter in each fiscal year), its Form 10-K containing its audited consolidated balance sheet and related unaudited consolidating statements of income, stockholders' equity income and cash flows of Purchaser and its subsidiaries for that quarterly period and for the period from the beginning of the fiscal year to the end of that quarterly period, and consolidating balance sheets of Purchaser and its subsidiaries as of the end of and for such yearthat quarterly period, setting forth in each case comparisons to the corresponding period in comparative form the figures for the previous preceding fiscal year, if applicable, all reported on by PriceWaterhouseCoopers or other independent public accountants of recognized national standing (without any qualification or exception as to the scope of such audit) to the effect that such consolidated financial which statements present fairly in all material respects the financial condition and results of operations of the Company and its consolidated Subsidiaries on a consolidated basis shall be prepared in accordance with GAAP consistently applied;
(b) within 105 days after the end of each fiscal year (orgenerally accepted accounting principles, if required to be filed with the SEC sooner, then concurrently with such filing), its consolidated balance sheets and related statements of income, stockholders' equity and cash flows as of the end of and for such year, setting forth in each case in comparative form the figures for the previous fiscal year, all certified by one of its Financial Officers as presenting fairly in all material respects the results of operations of the Company on a consolidated basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments and the absence lack of footnotes;footnote disclosures (none of which adjustments and disclosures would, alone or in the aggregate, be materially adverse to the financial condition, operating results, assets or operations of Purchaser and its subsidiaries taken as a whole); and
(cb) within 60 120 days after the end of each of the first three fiscal quarters of each fiscal year (oryear, if required to be filed with the SEC sooner, then concurrently with such filing), its Form 10-Q containing its consolidated balance sheet and related statements of income, stockholders' equity income and cash flows of Purchaser and its subsidiaries for the preceding fiscal year, and consolidated balance sheets of Purchaser and its subsidiaries as of the end of and for such fiscal quarter and the then elapsed portion of the that fiscal year, setting forth in each case in comparative form comparisons to the figures for the corresponding period or periods of (or, in the case of the balance sheet, as of the end of) the previous fiscal year;
(d) within 60 days after the end of each of the first three fiscal quarters of each fiscal year, its consolidated balance sheet and related statements of income, stockholders' equity and cash flows as of the end of and for such fiscal quarter and the then elapsed portion of the fiscal year, setting forth in each case in comparative form the figures for the corresponding period or periods of (or, in the case of the balance sheet, as of the end of) the budget and previous preceding fiscal year, all certified by one of its Financial Officers as presenting fairly in all material respects the results of operations of the Company on a consolidated basis prepared in accordance with GAAP generally accepted accounting principles, consistently applied, subject to normal year-end audit adjustments and the absence of footnotes;
(e) within 30 days after the end of each month which is neither a fiscal year end nor a fiscal quarter end, its consolidated balance sheet and related statements of income, stockholders' equity and cash flows as of the end of and for such month and the then elapsed portion of the fiscal year, setting forth in each case in comparative form the figures for the corresponding period or periods of (or, in the case of the balance sheet, as of the end of) the previous fiscal year, all certified accompanied by one of its Financial Officers as presenting fairly in all material respects the results of operations of the Company on a consolidated basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments and the absence of footnotes;
(f) by no later than December 15 of each fiscal year, a budget and business plan for the immediately succeeding fiscal year in the form approved by the Company's board of directors, in form, scope and detail satisfactory respect to the Purchasers and on a quarterly basis for each fiscal quarter consolidated portions of such succeeding fiscal year;
(g) promptly after the same become publicly availablethose statements, (to the extent not available through electronic means) copies an opinion of all periodic and other reports, proxy statements and other materials filed by the Company or any Subsidiary with the SEC, or any Governmental Agency succeeding to any or all of the functions of the SEC, or with any national securities exchange, or distributed by the Company to its stockholders generally, as the case may be;
(h) promptly after the same are delivered to the members of the Board of Directors, copies of all business plans and other financial plans relating to the Company and/or its Subsidiaries; and
(i) promptly following any request therefor, such other information regarding the operations, business affairs and financial condition of the Company or any Subsidiary, or compliance with the terms of the this Agreement or any Related Document, as the Purchasers may reasonably requestPurchaser's independent public accounting firm.
Appears in 1 contract
Information Rights. (a) The Company shall furnish to the Purchaser, for so long as it and its Affiliates (as defined below) owns Shares, Series H Shares, and/or Conversion Shares equivalent in the aggregate to at least 100,000 shares of Common Stock, and to each transferee of a Purchaser who holds with its Affiliates then owns Shares, Series H Shares, and/or Conversion Shares equivalent in the aggregate to at least 5% 100,000 shares of the Common Stock on a fully diluted as if converted basis (and regardless to each of GE and Midwest if such Purchaser holds at least a majority of the Series B Shares such Purchaser purchased hereunder):Stock:
(ai) within 105 thirty (30) days after the end of each fiscal year (or, if required to be filed with of the SEC sooner, then concurrently with such filing), its Form 10-K containing its audited Company a consolidated balance sheet of the Company and its subsidiaries, if any, as of the end of such fiscal year and the related consolidated statements of income, stockholders' equity and cash flows as of for the end of and for such yearfiscal year then ended, prepared in accordance with generally accepted accounting principles, setting forth in each case in comparative form the figures for or as of the end of the previous fiscal year, all reported on and certified by PriceWaterhouseCoopers or other a firm of independent public accountants of recognized national standing (without any qualification or exception as to selected by the scope Board of such audit) to the effect that such consolidated financial statements present fairly in all material respects the financial condition and results of operations Directors of the Company and its consolidated Subsidiaries on a consolidated basis in accordance with GAAP consistently appliedCompany;
(bii) within 105 thirty (30) days after the end of each fiscal quarter in each fiscal year (orother than the last fiscal quarter in each fiscal year) a consolidated balance sheet of the Company and its subsidiaries, if required any, and the related consolidated statements of income, stockholders' equity and cash flows, unaudited but prepared in accordance with generally accepted accounting principles and certified by the chief financial or accounting officer of the Company, such consolidated balance sheet to be filed with as of the SEC sooner, then concurrently with end of such filing), its fiscal quarter and such consolidated balance sheets and related statements of income, stockholders' equity and cash flows to be for such fiscal quarter and for the period from the beginning of the fiscal year to the end of such fiscal quarter, in each case with comparative statements for (or as of the end of and for such year, setting forth of) the corresponding period in each case in comparative form the figures for the previous prior fiscal year, all certified by one of its Financial Officers as presenting fairly in all material respects the results of operations of the Company on a consolidated basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments and the absence of footnotes;
(ciii) within 60 thirty (30) days after the end of each of the first three fiscal quarters of each fiscal year (or, if required to be filed with the SEC sooner, then concurrently with such filing), its Form 10-Q containing its month a consolidated balance sheet of the Company and its subsidiaries, if any, and the related consolidated statements of income, stockholders' equity and cash flows, unaudited but prepared in accordance with generally accepted accounting principles and certified by the chief financial or accounting officer of the Company, such consolidated balance sheet to be as of the end of such month and such consolidated statements of income, stockholders' equity and cash flows as to be for such month and for the period from the beginning of the fiscal year to the end of and for such fiscal quarter and the then elapsed portion of the fiscal yearmonth, setting forth in each case in with comparative form the figures statements for the corresponding period (or periods of (or, in the case of the balance sheet, as of the end of) the previous corresponding period in the prior fiscal year;
(div) within 60 days after together with the end financial statements furnished pursuant to clauses (i), (ii) and (iii), a comparison and analysis of each of the first three fiscal quarters of each fiscal year, its consolidated balance sheet and related such financial statements of income, stockholders' equity and cash flows as of the end of and for such fiscal quarter and the then elapsed portion of the fiscal year, setting forth in each case in comparative form the figures for against the corresponding period or periods of (or, in the case of the balance sheet, as of the end of) the budget and previous fiscal year, all certified by one of its Financial Officers as presenting fairly in all material respects the results of operations of the Company on a consolidated basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments and the absence of footnotes;
(e) within 30 days after the end of each month which is neither a fiscal year end nor a fiscal quarter end, its consolidated balance sheet and related statements of income, stockholders' equity and cash flows as of the end of and for such month and the then elapsed portion of the fiscal year, setting forth in each case in comparative form the figures for the corresponding period or periods of (or, in the case of the balance sheet, as of the end of) the previous fiscal year, all certified by one of its Financial Officers as presenting fairly in all material respects the results of operations of the Company on a consolidated basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments and the absence of footnotes;
(f) by no later than December 15 of each fiscal year, a budget and business plan for the immediately succeeding fiscal year in the form approved by from the Company's board of directorsAnnual Budget (as defined below), in form, scope showing the percentage differences and detail satisfactory to the Purchasers and on where such percentage difference exceeds ten percent (10%) a quarterly basis for each fiscal quarter of such succeeding fiscal year;
(g) promptly after the same become publicly available, (to the extent not available through electronic means) copies of all periodic and other reports, proxy statements and other materials filed by the Company or any Subsidiary with the SEC, or any Governmental Agency succeeding to any or all brief explanation of the functions of the SEC, or with any national securities exchange, or distributed by the Company to its stockholders generally, as the case may be;
(h) promptly after the same are delivered to the members of the Board of Directors, copies of all business plans and other financial plans relating to the Company and/or its Subsidiariesreasons therefor; and
(iv) promptly following any request thereforwith reasonable promptness, such other information regarding and data with respect to the operations, business affairs Company and financial condition its subsidiaries as any such person may from time to time reasonably request.
(b) The Company will permit any Purchaser or transferee referred to in subsection (a) (or its representative) to visit and inspect (at such Purchaser's expense) any of the Company or any Subsidiaryproperties of the Company, or compliance including its books of account and other records (and to make copies thereof and take extracts therefrom), and to discuss its affairs, finances and accounts with the terms of the this Agreement or Company's officers, its independent public accountants, and its outside counsel, all at such reasonable times during regular business hours and upon reasonable advance notice and as often as any Related Document, as the Purchasers such person may reasonably request.
Appears in 1 contract
Sources: Series G Convertible Preferred Stock Purchase Agreement (Unifi Communications Inc)
Information Rights. The Besides the information that shall be furnished under Applicable Laws, the Company shall furnish to each Purchaser who holds at least 5% of the Common Stock on a fully diluted as if converted basis (and regardless to each of GE and Midwest if such Purchaser holds at least a majority of the Series B Shares such Purchaser purchased hereunder):Preferred Investor:
(a) within 105 thirty (30) days prior to the end of each fiscal year, an annual consolidated budget (including the budget financial statements) and an annual business plan of the Group duly approved in accordance with Section 2.06 for the next fiscal year;
(b) within ten (10) Business Days after the end of each month, an operational report of the Group for such month in the form required by the Board, which shall set forth the operating performance for such month and for the portion of the fiscal year then ended, including the cumulative difference from the applicable capital and operational budget;
(c) within fifteen (15) days after the end of each month, unaudited monthly financial statements prepared in accordance with PRC GAAP (including consolidated and separate financial statements), which shall include a balance sheet, an income statement and a cash flow statement for such month and for the portion of the fiscal year then ended;
(d) within thirty (30) days after the end of each quarter, unaudited quarterly financial statements prepared in accordance with US GAAP (including consolidated and separate financial statements), which shall include a balance sheet, an income statement and a cash flow statement (including the cash balance) for such quarter and for the portion of the fiscal year then ended;
(e) within sixty (60) days after the end of each fiscal year (or, if required to be filed with the SEC sooner, then concurrently with such filing), its Form 10-K containing its audited consolidated balance sheet and related statements of income, stockholders' equity and cash flows as of the end of and for such year, setting forth in each case in comparative form the figures for the previous fiscal year, all reported on by PriceWaterhouseCoopers or other independent public accountants of recognized national standing (without any qualification or exception as to the scope of such auditi) to the effect that such consolidated annual financial statements present fairly in all material respects the financial condition and results of operations of the Company and its consolidated Subsidiaries on a consolidated basis prepared in accordance with US GAAP consistently applied;
or PRC GAAP or any other internationally accepted accounting principles as applicable (bincluding consolidated and separate financial statements) within 105 days after for the end Group audited by any of each fiscal year PricewaterhouseCoopers, Ernst & Young, KPMG or Deloitte & Touche, which shall include a balance sheet, an income statement and a cash flow statement (or, if required to be filed with including the SEC sooner, then concurrently with such filing), its consolidated balance sheets cash balance) and related notes thereto and (ii) in the event the annual financial statements of income, stockholders' equity and cash flows as of the end of and for such year, setting forth in each case in comparative form the figures for the previous fiscal year, all certified by one of its Financial Officers as presenting fairly in all material respects the results of operations of the Company on a consolidated basis are prepared in accordance with GAAP consistently appliedUS GAAP, subject reconciliation statements to normal year-end audit adjustments and the absence of footnotes;
(c) within 60 days after the end of each of the first three fiscal quarters of each fiscal year (or, if required to be filed with the SEC sooner, then concurrently with such filing), its Form 10-Q containing its consolidated balance sheet and related statements of income, stockholders' equity and cash flows as of the end of and for such fiscal quarter and the then elapsed portion of the fiscal year, setting forth in each case in comparative form the figures for the corresponding period or periods of (or, in the case of the balance sheet, as of the end of) the previous fiscal year;
(d) within 60 days after the end of each of the first three fiscal quarters of each fiscal year, its consolidated balance sheet and related statements of income, stockholders' equity and cash flows as of the end of and for such fiscal quarter and the then elapsed portion of the fiscal year, setting forth in each case in comparative form the figures for the corresponding period or periods of (or, in the case of the balance sheet, as of the end of) the budget and previous fiscal year, all certified by one of its Financial Officers as presenting fairly in all material respects the results of operations of the Company on a consolidated basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments and the absence of footnotes;
(e) within 30 days after the end of each month which is neither a fiscal year end nor a fiscal quarter end, its consolidated balance sheet and related statements of income, stockholders' equity and cash flows as of the end of and for such month and the then elapsed portion of the fiscal year, setting forth in each case in comparative form the figures for the corresponding period or periods of (or, in the case of the balance sheet, as of the end of) the previous fiscal year, all certified by one of its Financial Officers as presenting fairly in all material respects the results of operations of the Company on a consolidated basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments and the absence of footnotes;IFRS; and
(f) other materials or information as reasonably requested by no later than December 15 of each fiscal yearany Preferred Investor, a budget and business plan for the immediately succeeding fiscal year in the form approved by the Company's board of directors, in form, scope and detail satisfactory to the Purchasers and on a quarterly basis for each fiscal quarter within five (5) days upon receipt of such succeeding fiscal year;
(g) promptly after the same become publicly available, (to the extent not available through electronic means) copies of all periodic and other reports, proxy statements and other materials filed by the Company or any Subsidiary with the SEC, or any Governmental Agency succeeding to any or all of the functions of the SEC, or with any national securities exchange, or distributed request. All information furnished by the Company to its stockholders generally, as the case may be;
(h) promptly after Preferred Investors shall be certified by the same are delivered to the members of the Board of Directors, copies of all business plans and other financial plans relating to the Company and/or its Subsidiaries; and
(i) promptly following any request therefor, such other information regarding the operations, business affairs and financial condition chief executive officer of the Company or any Subsidiary(and for the information referred to in above subsections (c), or compliance with (d) and (e), also by the terms chief financial officer of the this Agreement or any Related DocumentCompany) as true, as the Purchasers may reasonably requestcorrect and not misleading.
Appears in 1 contract
Information Rights. The Company shall furnish Each Class A Member will be entitled to each Purchaser who holds at least 5% of receive the Common Stock on a fully diluted as if converted basis (and regardless to each of GE and Midwest if such Purchaser holds at least a majority of the Series B Shares such Purchaser purchased hereunder):following information:
(a) within 105 as soon as practicable, but in no event later than 60 days after the end of each fiscal year Fiscal Year, the Company shall furnish to the Class A Members, by electronic means or otherwise, unaudited consolidated financial statements of the Company for such Fiscal Year, prepared in accordance with GAAP applied on a basis consistent with prior periods (or, if required to be filed with the SEC sooner, then concurrently with except that such filingfinancial statements need not include footnotes), its Form 10-K containing its audited consolidated including a balance sheet and related consolidated statements of income, stockholders' Members’ equity and cash flows flow as of the end of and for such yearFiscal Year, setting forth in each case in comparative form the figures from the previous Fiscal Year;
(b) as soon as available, but no later than one-hundred twenty (120) days following completion of each Fiscal Year, the audited consolidated balance sheet of the Company and its Subsidiaries as at the end of each such Fiscal Year and the audited consolidated statements of income, cash flows and changes in Members’ equity for such year of the Company and the Subsidiaries, prepared in accordance with GAAP, setting forth in each case in comparative form the figures for the previous next preceding fiscal year, all reported on accompanied by PriceWaterhouseCoopers or other the report of independent certified public accountants of recognized national standing selected by the Board;
(without any qualification or exception c) as to soon as available, but no later than fifteen (15) days following completion of each fiscal quarter (other than the scope of such audit) to fourth fiscal quarter), the effect that such consolidated financial statements present fairly in all material respects the financial condition and results of operations balance sheet of the Company and its consolidated the Subsidiaries on a consolidated basis in accordance with GAAP consistently applied;
(b) within 105 days after as at the end of each fiscal year (or, if required to be filed with such quarter and the SEC sooner, then concurrently with such filing), its consolidated balance sheets and related statements of income, stockholders' equity and cash flows as and changes in Members’ equity for such quarter and the portion of the end fiscal year then ended of the Company and for such yearthe Subsidiaries, setting forth in each case in comparative form the figures for the corresponding periods of the previous fiscal yearyear in comparative form, all certified by one of its Financial Officers as presenting fairly in reasonable detail and all material respects the results of operations of the Company on a consolidated basis prepared in accordance with GAAP consistently applied, subject to the absence of footnote disclosures and normal year-end audit adjustments adjustments, and certified by the absence Chief Financial Officer of footnotes;the Company (it being understood that such certifications shall not apply to any pre-Initial Closing period).
(cd) within 60 days as soon as available, but no later than ten (10) Business Days after the end of each of the first three fiscal quarters of monthly accounting period in each fiscal year (oryear, if required to be filed with the SEC sooner, then concurrently with such filing), its Form 10-Q containing its unaudited consolidated balance sheet and related statements of income, stockholders' equity income and cash flows of the Company and its Subsidiaries for such monthly period and for the period from the beginning of the fiscal year to the end of such month, and consolidated balance sheets of the Company and its Subsidiaries as of the end of and for such fiscal quarter and the then elapsed portion of the fiscal year, setting forth in each case in comparative form the figures for the corresponding period or periods of (or, in the case of the balance sheet, as of the end of) the previous fiscal year;
(d) within 60 days after the end of each of the first three fiscal quarters of each fiscal year, its consolidated balance sheet and related statements of income, stockholders' equity and cash flows as of the end of and for such fiscal quarter and the then elapsed portion of the fiscal year, setting forth in each case in comparative form the figures for the corresponding period or periods of (or, in the case of the balance sheet, as of the end of) the budget and previous fiscal yearmonthly period, all certified by one of its Financial Officers as presenting fairly in all material respects the results of operations of the Company on a consolidated basis prepared in accordance with GAAP consistently applied, subject to the absence of footnote disclosures and normal year-end audit adjustments adjustments, and certified by the absence Chief Financial Officer of footnotes;the Company (it being understood that such certifications shall not apply to any pre-Initial Closing period).
(e) within 30 days after no later than the end first board meeting of the first Fiscal Quarter of each month which is neither a fiscal year end nor a fiscal quarter end, its consolidated balance sheet and related statements of income, stockholders' equity and cash flows as of the end of and for such month and the then elapsed portion of the fiscal year, setting forth in each case in comparative form the figures consolidated capital and operating expense budgets, cash flow projections and income and loss projections for the corresponding period or periods Company and its Subsidiaries in respect of (or, in the case of the balance sheet, as of the end of) the previous such fiscal year, all certified by one of its Financial Officers as presenting fairly itemized in all material respects the results of operations reasonable detail and prepared on a monthly basis, and, promptly after preparation, any revisions to any of the Company on a consolidated basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments and the absence of footnotesforegoing;
(f) by no later than December 15 of each fiscal year, a budget and business plan for the immediately succeeding fiscal year in the form approved promptly following receipt by the Company's board of directors, in formeach audit response letter, scope accountant’s management letter and detail satisfactory other written report submitted to the Purchasers and on a quarterly basis for each fiscal quarter Company by its independent public accountants in connection with an annual or interim audit of such succeeding fiscal year;the books of the Company or any of its Subsidiaries; and
(g) promptly after the same become publicly availablecommencement thereof, (to the extent not available through electronic means) copies notice of all periodic actions, suits, claims, proceedings, investigations and other reports, proxy statements inquiries that could materially and other materials filed by adversely affect the Company or any Subsidiary with the SEC, or any Governmental Agency succeeding to any or all of the functions of the SEC, or with any national securities exchange, or distributed by the Company to its stockholders generally, as the case may be;
(h) promptly after the same are delivered to the members of the Board of Directors, copies of all business plans and other financial plans relating to the Company and/or its Subsidiaries; and
(i) promptly following any request therefor, such other information regarding the operations, business affairs and financial condition of the Company or any Subsidiary, or compliance with the terms of the this Agreement or any Related Document, as the Purchasers may reasonably requestif any.
Appears in 1 contract
Sources: Limited Liability Company Agreement (GNC Holdings, Inc.)
Information Rights. The Company shall furnish In order to each Purchaser who holds at least 5% facilitate (i) the Investor’s and its Affiliates’ compliance with legal and regulatory requirements applicable to the beneficial ownership by the Investor and its Affiliates of equity securities of the Common Stock on a fully diluted as if converted basis Company and (and regardless to each of GE and Midwest if such Purchaser holds at least a majority ii) oversight of the Series B Shares such Purchaser purchased hereunder):Investor’s investment in the Company, for so long as the Beneficial Ownership Requirement is met, the Company agrees to provide the Investor with the following, all of which shall be subject to Section 5.7:
(a) within 105 120 days after the end of each fiscal year of the Company, (ori) an audited, if required to be filed with the SEC sooner, then concurrently with such filing), its Form 10-K containing its audited consolidated balance sheet of the Company and related statements of income, stockholders' equity and cash flows its Subsidiaries as of the end of such fiscal year and for such year(ii) audited, setting forth consolidated statements of income, comprehensive income, cash flows and changes in each case in comparative form the figures for the previous fiscal year, all reported on by PriceWaterhouseCoopers or other independent public accountants of recognized national standing (without any qualification or exception as to the scope of such audit) to the effect that such consolidated financial statements present fairly in all material respects the financial condition and results of operations shareholders’ equity of the Company and its consolidated Subsidiaries for such fiscal year; provided that this requirement shall be deemed to have been satisfied if on a consolidated basis in accordance or prior to such date the Company files its audited annual financial statements with GAAP consistently appliedthe applicable Canadian Securities Commissions pursuant to National Instrument 51-102 – Continuous Disclosure Obligations;
(b) within 105 days after the end of each fiscal year (or, if required to be filed with the SEC sooner, then concurrently with such filing), its consolidated balance sheets and related statements of income, stockholders' equity and cash flows as of the end of and for such year, setting forth in each case in comparative form the figures for the previous fiscal year, all certified by one of its Financial Officers as presenting fairly in all material respects the results of operations of the Company on a consolidated basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments and the absence of footnotes;
(c) within 60 days after the end of each of the first three fiscal quarters of each fiscal year of the Company, (ori) an unaudited, if required to be filed with the SEC sooner, then concurrently with such filing), its Form 10-Q containing its consolidated balance sheet of the Company and related statements of income, stockholders' equity and cash flows its Subsidiaries as of the end of and for such fiscal quarter and the then elapsed portion (ii) consolidated statements of income, comprehensive income and cash flows of the Company and its Subsidiaries for such fiscal yearquarter; provided that this requirement shall be deemed to have been satisfied if on or prior to such date the Company files its interim financial report with the applicable Canadian Securities Commissions pursuant to National Instrument 51-102 – Continuous Disclosure Obligations;
(c) as promptly as practicable, setting forth in each case in comparative form a copy of the figures proposed annual budget for the corresponding period or periods of Company and its Subsidiaries (or, in as shared with the case of the balance sheet, as of the end of) the previous fiscal year;Board); and
(d) within 60 days after the end of each of the first three fiscal quarters of each fiscal year, its consolidated balance sheet and related statements of income, stockholders' equity and cash flows as of the end of and for such fiscal quarter and the then elapsed portion of the fiscal year, setting forth in each case in comparative form the figures for the corresponding period or periods of (or, in the case of the balance sheet, promptly as of the end of) the budget and previous fiscal year, all certified by one of its Financial Officers as presenting fairly in all material respects the results of operations of the Company on a consolidated basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments and the absence of footnotes;
(e) within 30 days after the end of each month which is neither a fiscal year end nor a fiscal quarter end, its consolidated balance sheet and related statements of income, stockholders' equity and cash flows as of the end of and for such month and the then elapsed portion of the fiscal year, setting forth in each case in comparative form the figures for the corresponding period or periods of (or, in the case of the balance sheet, as of the end of) the previous fiscal year, all certified by one of its Financial Officers as presenting fairly in all material respects the results of operations of the Company on a consolidated basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments and the absence of footnotes;
(f) by no later than December 15 of each fiscal yearpracticable following receipt thereof, a budget and business plan for the immediately succeeding fiscal year in the form approved by the Company's board copy of directorsany written notice, in formletter, scope and detail satisfactory to the Purchasers and on correspondence or other written communication from a quarterly basis for each fiscal quarter of such succeeding fiscal year;
(g) promptly after the same become publicly available, (to the extent not available through electronic means) copies of all periodic and other reports, proxy statements and other materials filed by Governmental Entity or any litigation proceedings or filings involving the Company or any Subsidiary with the SECof its Subsidiaries, or any Governmental Agency succeeding to any or all in each case, in respect of the functions Company’s potential, actual or alleged violation of the SEC, or with any national securities exchange, or distributed and all applicable Laws in any material respect and any written responses by the Company to its stockholders generally, as the case may be;
(h) promptly after the same are delivered to the members of the Board of Directors, copies of all business plans and other financial plans relating to in respect thereto; provided that the Company and/or its Subsidiaries; and
(i) promptly following any request thereforshall not be required to furnish such copies or other information, such other information regarding the operations, business affairs and financial condition disclosure of which would reasonably be expected to result in the Company loss or any Subsidiary, or compliance with the terms impairment of the this Agreement or any Related Document, as the Purchasers may reasonably requestsolicitor-client privilege.
Appears in 1 contract
Sources: Investor Rights and Strategic Opportunities Agreement
Information Rights. The Company shall furnish deliver to each Purchaser who holds at least 5% of the Common Stock on a fully diluted as if converted basis (Investors in form and regardless detail satisfactory to each of GE and Midwest if such Purchaser holds at least a majority of the Series B Shares such Purchaser purchased hereunder):Investors the following:
(a) as soon as available, but in any event within 105 45 days after the end of each of the first three fiscal quarters of each fiscal year of the Company, duplicate copies of
(i) a consolidated balance sheet of the Company and its Subsidiaries as at the end of such fiscal quarter, and
(ii) the related consolidated statement of income and operations, shareholders’ equity, cash flow and changes in financial position of the Company and its Subsidiaries for such fiscal quarter and (in the case of the second and third quarters) for the portion of the fiscal year ending with such fiscal quarter, in each case setting forth in comparative form the figures for the corresponding periods in the previous fiscal year, prepared in accordance with US GAAP or IFRS applied on a consistent basis, and certified by the Chief Financial Officer of the Company as fairly presenting, in all material respects, the financial position of the companies being reported on and their results of operations and cash flows in accordance with the applicable accounting principals then used by the Company, subject only to normal year-end audit adjustments and the absence of footnotes;
(b) as soon as available, but in any event within 90 days after the end of each fiscal year of the Company, duplicate copies of
(or, if required to be filed with the SEC sooner, then concurrently with such filing), its Form 10-K containing its audited i) a consolidated balance sheet of the Company and related statements of income, stockholders' equity and cash flows its Subsidiaries as of at the end of such fiscal year, and
(ii) the related consolidated statements of operations, shareholders’ equity, cash flow and changes in financial position of the Company and its Subsidiaries for such fiscal year, setting forth in each case in comparative form the figures for the previous fiscal year, prepared in accordance with the accounting principals then used by the Company applied on a consistent basis, audited by, and accompanied by a report and opinion thereon of, a “big four” international accounting firm, which opinion shall state that such financial statements present fairly, in all material respects, the financial position of the companies being reported upon and their results of operations and cash flows and have been prepared in conformity with the applicable accounting principals applied on by PriceWaterhouseCoopers a consistent basis, that the examination of such accountants in connection with such financial statements has been made in accordance with generally accepted auditing standards, that such report and opinion are not subject to any “going concern” or other independent public accountants of recognized national standing (without like qualification or exception or any qualification or exception as to the scope of such audit) to the effect , and that such consolidated financial statements present fairly audit provides a reasonable basis for such opinion in all material respects the financial condition and results of operations of the Company and its consolidated Subsidiaries on a consolidated basis in accordance with GAAP consistently applied;circumstances; and
(biii) within 105 days after the end of each fiscal year (or, if required to be filed with the SEC sooner, then concurrently with such filing), its consolidated balance sheets Company’s annual budget and related statements of income, stockholders' equity and cash flows as of the end of and for such year, setting forth in each case in comparative form the figures operating budget for the previous coming fiscal year, all certified by one of its Financial Officers as presenting fairly in all material respects the results of operations of the Company on a consolidated basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments and the absence of footnotes;
(c) as soon as available, but in any event within 60 days five Business Days after the end first day of each calendar month, (i) a monthly report of the first three fiscal quarters of each fiscal year (or, if required to be filed with the SEC sooner, then concurrently with such filing), its Form 10-Q containing its consolidated balance sheet and related statements of income, stockholders' equity cash receipts and cash flows as disbursements for the calendar month most recently ended and (ii) a projected monthly report of the end of cash receipts and cash disbursements for such fiscal quarter and the then elapsed portion of the fiscal yearcurrent calendar month, setting forth in each case in comparative form the figures for the corresponding period or periods of (or, substantially in the case of form agreed to between the balance sheet, as of Company and the end of) the previous fiscal yearInvestors;
(d) as soon as available, but in any event within 60 days five Business Days after receipt thereof, copies of all management letters and reports submitted to the end of each of the first three fiscal quarters of each fiscal year, its consolidated balance sheet and related statements of income, stockholders' equity and cash flows as of the end of and for such fiscal quarter and the then elapsed portion of the fiscal year, setting forth in each case in comparative form the figures for the corresponding period Company or periods of (or, in the case of the balance sheet, as of the end of) the budget and previous fiscal year, all certified by one any of its Financial Officers as presenting fairly Subsidiaries by independent certified public accountants in all material respects the results of operations connection with any annual, interim or special audit of the Company on a consolidated basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments and the absence or any of footnotesits Subsidiaries made by such accountants;
(e) as soon as available, but in any event within 30 five days after of receipt thereof, copies of any notice to the end of each month which is neither a fiscal year end nor a fiscal quarter end, its consolidated balance sheet and related statements of income, stockholders' equity and cash flows as of the end of and for such month and the then elapsed portion of the fiscal year, setting forth in each case in comparative form the figures for the corresponding period Company or periods of (or, in the case of the balance sheet, as of the end of) the previous fiscal year, all certified by one any of its Financial Officers as presenting fairly in all material respects the results of operations of the Company on Subsidiaries from any governmental authority relating to any order, ruling, statute or other law that could reasonably be expected to have a consolidated basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments and the absence of footnotesMaterial Adverse Effect;
(f) by no later than December 15 of each fiscal year, a budget and business plan for the immediately succeeding fiscal year in the form approved by the Company's board of directorsas soon as practicable and, in formany event, scope within five Business Days after any officer of the Company obtains knowledge thereof, notice (with a description in reasonable detail, and detail satisfactory stating the action that the Company is taking or proposes to take with respect thereto) of (i) the Purchasers and on commencement of any litigation, investigation or other proceeding to which the Company or any of its Subsidiaries is a quarterly basis party before any court or arbitrator or any governmental body, agency or official or arbitration body, (ii) any claim for each fiscal quarter indemnity against the Company or any of such succeeding fiscal year;its Subsidiaries or (iii) the existence of any material default or breach under this Agreement or any other material contract or agreement to which the Company or any of its Subsidiaries is a party; and
(g) as promptly after the same become publicly availableas reasonably practicable, (to the extent not available through electronic means) copies of all periodic such other data and other reports, proxy statements and other materials filed by the Company or any Subsidiary with the SEC, or any Governmental Agency succeeding to any or all of the functions of the SEC, or with any national securities exchange, or distributed by the Company to its stockholders generally, as the case may be;
(h) promptly after the same are delivered to the members of the Board of Directors, copies of all business plans and other financial plans information relating to the Company and/or its Subsidiaries; and
(i) promptly following any request thereforbusiness, such other information regarding the operations, business affairs and affairs, financial condition condition, assets or property of the Company or any Subsidiary, or compliance with of its Subsidiaries as from time to time may be reasonably requested by the terms of the this Agreement or any Related Document, as the Purchasers may reasonably requestInvestors.
Appears in 1 contract
Sources: Shareholder Agreement (Concord Medical Services Holdings LTD)
Information Rights. The Company shall furnish to each Purchaser who holds So long as at least 5% of the Common Stock on a fully diluted as if converted basis fifty percent (and regardless to each of GE and Midwest if such Purchaser holds at least a majority 50%) of the Series B Shares A Preferred Stock remains outstanding and the Investors continue to own at least eighty percent (80%) of the shares of such Purchaser purchased hereunder):Series A Preferred Stock (or shares of common stock issued upon conversion of the Series A Preferred Stock) held by the Investors as of the date of this Agreement, the Company will furnish the following reports to any Investor:
(a) within 105 one hundred twenty (120) days after the end of each fiscal year (orof the Company, if required to be filed with the SEC sooner, then concurrently with such filing), its Form 10-K containing its audited a consolidated balance sheet of the Company and related its subsidiaries, if any, as at the end of such fiscal year, and consolidated statements of income, stockholders' equity income and cash flows as of the end of Company and its subsidiaries, if any, for such year, setting forth prepared in each case accordance with generally accepted accounting principles in comparative form the figures for the previous fiscal yearJapan consistently applied, all reported on certified by PriceWaterhouseCoopers or other independent public accountants of recognized national standing selected by the Company.
(without any qualification or exception as to b) within forty-five (45) days after the scope end of such audit) to the effect that such first, second, and third quarterly accounting periods in each fiscal year of the Company, an unaudited consolidated financial statements present fairly in all material respects the financial condition and results of operations balance sheet of the Company and its subsidiaries, if any, as of the end of each such quarterly period, and unaudited consolidated Subsidiaries on a consolidated basis in accordance with GAAP consistently applied;statements of income and cash flows of the Company and its subsidiaries, if any, for such period.
(bc) within 105 fifteen (15) days after the end of each month, an unaudited consolidated balance sheet of the Company and its subsidiaries, if any, as of the end of such monthly period, and consolidated statements of income and cash flows of the Company and its subsidiaries, if any, for such period.
(d) within forty-five (45) days after the end of each fiscal year (orquarter, if required to be filed with an up-to-date capitalization table, including the SEC soonernames of each shareholder and option or warrant holder and the number of shares, then concurrently with options or warrants held by each such filing)holder, its consolidated balance sheets and related statements of income, stockholders' equity and cash flows as certified by the management member chiefly responsible for the finances of the end of and for such year, setting forth in each case in comparative form the figures for the previous fiscal year, all certified by one of its Financial Officers as presenting fairly in all material respects the results of operations of the Company on a consolidated basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments and the absence of footnotes;Company.
(ce) within 60 at least thirty (30) days after prior to the end of each of the first three fiscal quarters of each fiscal year (or, if required to be filed with the SEC sooner, then concurrently with such filing), its Form 10-Q containing its consolidated balance sheet and related statements of income, stockholders' equity and cash flows as of the end of and for such fiscal quarter and the then elapsed portion of the fiscal year, setting forth in each case in comparative form the figures for the corresponding period or periods of (or, in the case of the balance sheet, as of the end of) the previous fiscal year;
(d) within 60 days after the end of each of the first three fiscal quarters beginning of each fiscal year, its consolidated balance sheet and related statements of income, stockholders' equity and cash flows as of the end of and an operating plan for such fiscal quarter and the then elapsed portion of the fiscal year, setting forth in each case in comparative form the figures including consolidated capital and operating expense budgets, cash flow projections and income and loss projections for the corresponding period or periods Company and its subsidiaries in respect of (or, in the case of the balance sheet, as of the end of) the budget and previous such fiscal year, all certified by one of its Financial Officers as presenting fairly itemized in all material respects the results of operations reasonable detail and prepared on a monthly basis, and, promptly after preparation, any revisions to any of the Company on a consolidated basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments and the absence of footnotes;
(e) within 30 days after the end of each month which is neither a fiscal year end nor a fiscal quarter end, its consolidated balance sheet and related statements of income, stockholders' equity and cash flows as of the end of and for such month and the then elapsed portion of the fiscal year, setting forth in each case in comparative form the figures for the corresponding period or periods of (or, in the case of the balance sheet, as of the end of) the previous fiscal year, all certified by one of its Financial Officers as presenting fairly in all material respects the results of operations of the Company on a consolidated basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments and the absence of footnotes;
(f) by no later than December 15 of each fiscal year, a budget and business plan for the immediately succeeding fiscal year in the form approved by the Company's board of directors, in form, scope and detail satisfactory to the Purchasers and on a quarterly basis for each fiscal quarter of such succeeding fiscal year;
(g) promptly after the same become publicly available, (to the extent not available through electronic means) copies of all periodic and other reports, proxy statements and other materials filed by the Company or any Subsidiary with the SEC, or any Governmental Agency succeeding to any or all of the functions of the SEC, or with any national securities exchange, or distributed by the Company to its stockholders generally, as the case may be;
(h) promptly after the same are delivered to the members of the Board of Directors, copies of all business plans and other financial plans relating to the Company and/or its Subsidiaries; and
(i) promptly following any request therefor, such other information regarding the operations, business affairs and financial condition of the Company or any Subsidiary, or compliance with the terms of the this Agreement or any Related Document, as the Purchasers may reasonably requestforegoing.
Appears in 1 contract
Sources: Investor Rights Agreement (Third Wave Technologies Inc /Wi)
Information Rights. The Company shall will furnish to each Purchaser who holds at least 5% of the Common Stock on a fully diluted as if converted basis (and regardless to each of GE and Midwest if such Purchaser holds at least a majority of the Series B Shares such Purchaser purchased hereunder):Significant Holder:
(a) within 105 90 days after the end of each fiscal year (orof the Company, if required to be filed with the SEC sooner, then concurrently with such filing), its Form 10-K containing its audited consolidated balance sheet and related statements of incomeoperations, stockholders' equity and cash flows as of the end of and for such year, setting forth in each case in comparative form the figures for the previous fiscal year, all reported on by PriceWaterhouseCoopers Arth▇▇ ▇▇▇e▇▇▇▇ ▇▇▇ or other independent public accountants of recognized national standing (without a "going concern" or like qualification or exception and without any qualification or exception as to the scope of such auditaudit other than as to Unrestricted Subsidiaries (as defined in the Credit Agreement)) to the effect that such consolidated financial statements present fairly in all material respects the financial condition and results of operations of the Company and its consolidated Subsidiaries on a consolidated basis in accordance with GAAP consistently applied;
(b) within 105 days after the end of each fiscal year (or, if required to be filed with the SEC sooner, then concurrently with such filing), its consolidated balance sheets and related statements of income, stockholders' equity and cash flows as of the end of and for such year, setting forth in each case in comparative form the figures for the previous fiscal year, all certified by one of its Financial Officers as presenting fairly in all material respects the results of operations of the Company on a consolidated basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments and the absence of footnotes;
(c) within 60 45 days after the end of each of the first three fiscal quarters of each fiscal year (orof the Company, if required to be filed with the SEC sooner, then concurrently with such filing), its Form 10-Q containing its consolidated balance sheet and related statements of incomeoperations, stockholders' equity and cash flows as of the end of and for such fiscal quarter and the then elapsed portion of the fiscal year, setting forth in each case in comparative form the figures for the corresponding period or periods of (or, in the case of the balance sheet, as of the end of) the previous fiscal year;
(d) within 60 days after the end of each of the first three fiscal quarters of each fiscal year, its consolidated balance sheet and related statements of income, stockholders' equity and cash flows as of the end of and for such fiscal quarter and the then elapsed portion of the fiscal year, setting forth in each case in comparative form the figures for the corresponding period or periods of (or, in the case of the balance sheet, as of the end of) the budget and previous fiscal year, all certified by one of its Financial Officers financial officers as presenting fairly in all material respects the financial condition and results of operations of the Company and its consolidated Subsidiaries on a consolidated basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments and the absence of footnotes;
(ec) within concurrently with any delivery of financial statements under clause (a) or (b) above, a certificate of a financial officer of the Company (i) certifying as to whether an Event of Non-Compliance (as defined in the Charter) has occurred, or a default or event of default has occurred under the New Notes Indenture or the Credit Agreement and, if an Event of Non-Compliance or a default or event of default has occurred, specifying the details thereof and any action taken or proposed to be taken with respect thereto and (ii) stating whether any change in GAAP or in the application thereof has occurred since December 31, 2000 that has not been otherwise disclosed in a prior certificate and, if any such change has occurred, specifying the effect of such change on the financial statements accompanying such certificate;
(d) at least 30 days after prior to the end commencement of each month which is neither a fiscal year end nor of the Borrower, a consolidated budget for such fiscal quarter endyear (in the form provided to the Lenders (as defined in the Credit Agreement), its including a projected consolidated balance sheet and related statements of income, stockholders' equity projected operations and cash flows flow as of the end of and for such month and the then elapsed portion of the fiscal year) and, setting forth in each case in comparative form the figures for the corresponding period or periods promptly when available, any significant revisions of (or, in the case of the balance sheet, as of the end of) the previous fiscal year, all certified by one of its Financial Officers as presenting fairly in all material respects the results of operations of the Company on a consolidated basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments and the absence of footnotessuch budget;
(f) by no later than December 15 of each fiscal year, a budget and business plan for the immediately succeeding fiscal year in the form approved by the Company's board of directors, in form, scope and detail satisfactory to the Purchasers and on a quarterly basis for each fiscal quarter of such succeeding fiscal year;
(ge) promptly after the same become publicly available, (to the extent not available through electronic means) copies of all periodic and other reports, proxy statements and other materials filed by the Company or any Subsidiary with the SEC, or any Governmental Agency succeeding to any or all of the functions of the SEC, or with any national securities exchange, or distributed by the Company to its stockholders generally, as the case may be;
(h) promptly after the same are delivered to the members of the Board of Directors, copies of all business plans and other financial plans relating to the Company and/or its Subsidiaries; and
(i) promptly following any request therefor, such other information regarding the operations, business affairs and financial condition of the Company or any Subsidiary, or compliance with the terms of the this Agreement or any Related Document, as the Purchasers may reasonably request.or
Appears in 1 contract
Sources: Securities Purchase Agreement (Uniplast Midwest Inc)
Information Rights. The From and after the Closing and until the Fall-Away of Investor Rights, in order to facilitate Investor Parties’s compliance with legal and regulatory requirements applicable to the beneficial ownership by Investor Parties and its Affiliates of equity securities of the Company, the Company shall furnish provide to each Purchaser who holds at least 5% of the Common Stock on a fully diluted as if converted basis (and regardless to each of GE and Midwest if such Purchaser holds at least a majority of the Series B Shares such Purchaser purchased hereunder):Investor Parties:
(ai) within 105 ninety (90) days after the end of each fiscal year of the Company, (orA) an audited, if required to be filed with the SEC sooner, then concurrently with such filing), its Form 10-K containing its audited consolidated balance sheet of the Company and related statements of income, stockholders' equity and cash flows its Subsidiaries as of the end of and for such year, setting forth in each case in comparative form the figures for the previous fiscal year, all reported on by PriceWaterhouseCoopers or other independent public accountants of recognized national standing (without any qualification or exception as to the scope of such auditB) to the effect that such an audited, consolidated financial statements present fairly in all material respects the financial condition and results of operations income statement of the Company and its Subsidiaries for such fiscal year and (C) an audited, consolidated statement of cash flows of the Company and its Subsidiaries for such fiscal year; provided that this requirement shall be deemed to have been satisfied if on a consolidated basis in accordance or prior to such date the Company files its annual report on Form 10-K for the applicable fiscal year with GAAP consistently appliedthe SEC;
(bii) within 105 days after the end of each fiscal year forty-five (or, if required to be filed with the SEC sooner, then concurrently with such filing), its consolidated balance sheets and related statements of income, stockholders' equity and cash flows as of the end of and for such year, setting forth in each case in comparative form the figures for the previous fiscal year, all certified by one of its Financial Officers as presenting fairly in all material respects the results of operations of the Company on a consolidated basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments and the absence of footnotes;
(c45) within 60 days after the end of each of the first three fiscal (3) quarters of each fiscal year of the Company, (orA) an unaudited, if required to be filed with the SEC sooner, then concurrently with such filing), its Form 10-Q containing its consolidated balance sheet of the Company and related statements of income, stockholders' equity and cash flows its Subsidiaries as of the end of such fiscal quarter, (B) an unaudited, consolidated income statement of the Company and its Subsidiaries for such fiscal quarter and the then elapsed portion (C) an unaudited, consolidated statement of cash flows of the Company and its Subsidiaries for such fiscal year, setting forth in each case in comparative form quarter; provided that this requirement shall be deemed to have been satisfied if on or prior to such date the figures Company files its quarterly report on Form 10-Q for the corresponding period or periods of (or, in applicable fiscal year with the case of the balance sheet, as of the end of) the previous fiscal yearSEC;
(diii) within 60 seventy five (75) days after the end of each of the first three fiscal quarters of each fiscal calendar year, its consolidated balance sheet and related statements of income, stockholders' equity and cash flows as of the end of and for such fiscal quarter and the then elapsed portion of the fiscal year, setting information set forth in each case in comparative form the figures for the corresponding period or periods of (or, in the case of the balance sheet, as of the end of) the budget and previous fiscal year, all certified by one of its Financial Officers as presenting fairly in all material respects the results of operations of the Company on a consolidated basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments and the absence of footnotes;
(e) within 30 days after the end of each month which is neither a fiscal year end nor a fiscal quarter end, its consolidated balance sheet and related statements of income, stockholders' equity and cash flows as of the end of and for such month and the then elapsed portion of the fiscal year, setting forth in each case in comparative form the figures for the corresponding period or periods of (or, in the case of the balance sheet, as of the end of) the previous fiscal year, all certified by one of its Financial Officers as presenting fairly in all material respects the results of operations of the Company on a consolidated basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments and the absence of footnotes;
(f) by no later than December 15 of each fiscal year, a budget and business plan for the immediately succeeding fiscal year in the form approved by the Company's board of directors, in form, scope and detail satisfactory to the Purchasers and on a quarterly basis for each fiscal quarter of such succeeding fiscal year;
(g) promptly after the same become publicly available, (to the extent not available through electronic means) copies of all periodic and other reports, proxy statements and other materials filed by the Company or any Subsidiary with the SEC, or any Governmental Agency succeeding to any or all of the functions of the SEC, or with any national securities exchange, or distributed by the Company to its stockholders generally, as the case may be;
(h) promptly after the same are delivered to the members of the Board of Directors, copies of all business plans and other financial plans relating to the Company and/or its SubsidiariesExhibit B; and
(iiv) promptly following any at the request thereforof Investor Parties, such other reports and information regarding as may be reasonably requested by Investor Parties; provided, that the operationsCompany shall not be obligated to provide such access or materials if the Company determines, business affairs and financial condition in its reasonable judgment, that doing so would reasonably be expected to (1) violate applicable Law, an applicable order or a contract or obligation of confidentiality owing to a third party or (2) jeopardize the protection of an attorney-client privilege, attorney work product protection or other legal privilege (provided, however, that the Company shall use reasonable efforts to provide alternative, redacted or substitute documents or information in a manner that would not result in the loss of the ability to assert attorney-client privilege, attorney work product protection or other legal privileges); provided, further, that the Company or any Subsidiary, or compliance with shall use its commercially reasonable efforts to disclose such information in a manner that would not violate the terms of the this Agreement or any Related Document, as the Purchasers may reasonably requestforegoing.
Appears in 1 contract
Sources: Investor Rights Agreement (Shenandoah Telecommunications Co/Va/)
Information Rights. The Company shall Corporation will furnish to each Purchaser who holds Stockholder owning at least five percent (5% %) of the all issued and outstanding shares of Common Stock on a fully diluted as if converted basis (and regardless to each of GE and Midwest if such Purchaser holds at least a majority of the Series B Shares such Purchaser purchased hereunder):following information:
(a) within 105 As soon as available, but no later than the later of (i) ninety (90) days after following completion of each fiscal year and (ii) the applicable filing deadline under SEC rules, the audited consolidated balance sheet of the Corporation and its Subsidiaries as at the end of each such fiscal year (or, if required to be filed with and the SEC sooner, then concurrently with such filing), its Form 10-K containing its audited consolidated balance sheet and related statements of income, cash flows and changes in stockholders' equity and cash flows as for such year of the end of Corporation and for such yearits Subsidiaries, setting forth in each case in comparative form the figures for the previous next preceding fiscal year, all reported on accompanied by PriceWaterhouseCoopers or other the report of independent certified public accountants of recognized national standing (without any qualification standing; provided that this requirement shall be deemed to have been satisfied if, on or exception as prior to such date, the scope of such audit) to Corporation files its annual report on Form 10-K for the effect that such consolidated financial statements present fairly in all material respects applicable fiscal year with the financial condition and results of operations of the Company and its consolidated Subsidiaries on a consolidated basis in accordance with GAAP consistently appliedSEC;
(b) within 105 As soon as available, but no later than the later of (i) forty-five (45) days following completion of each fiscal quarter (other than the fourth fiscal quarter) and (ii) the applicable filing deadlines under SEC rules, the consolidated balance sheet of the Corporation and its Subsidiaries as at the end of such quarter and the consolidated statements of income, cash flows and changes in stockholders' equity for such quarter and the portion of the fiscal year then ended of the Corporation and its Subsidiaries, setting forth in each case the figures for the corresponding periods of the previous fiscal year in comparative form; provided that this requirement shall be deemed to have been satisfied if, on or prior to such date, the Corporation files its quarterly report on Form 10-Q for the applicable fiscal quarter with the SEC;
(c) Within ninety (90) days after the end of each fiscal year (or, if required to be filed with the SEC sooner, then concurrently with such filing), its consolidated balance sheets and related statements of income, stockholders' equity and cash flows as of the end of and for such year, setting forth in each case in comparative form such information that the figures Corporation then-has which is reasonably necessary for the previous fiscal yearpreparation of such Stockholder's income tax returns (whether federal, all certified by one of its Financial Officers as presenting fairly in all material respects the results of operations of the Company on a consolidated basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments and the absence of footnotes;
(c) within 60 days after the end of each of the first three fiscal quarters of each fiscal year (or, if required to be filed with the SEC sooner, then concurrently with such filingstate or foreign), its Form 10-Q containing its consolidated balance sheet and related statements of income, stockholders' equity and cash flows as of the end of and for such fiscal quarter and the then elapsed portion of the fiscal year, setting forth in each case in comparative form the figures for the corresponding period or periods of (or, in the case of the balance sheet, as of the end of) the previous fiscal year;
(d) within 60 days after the end of each of the first three fiscal quarters of each fiscal yearReasonable access, its consolidated balance sheet and related statements of income, stockholders' equity and cash flows as of the end of and for such fiscal quarter and the then elapsed portion of the fiscal year, setting forth in each case in comparative form the figures for the corresponding period or periods of (or, in the case of the balance sheet, as of the end of) the budget and previous fiscal year, all certified by one of its Financial Officers as presenting fairly in all material respects the results of operations of the Company on a consolidated basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments and the absence of footnotes;
(e) within 30 days after the end of each month which is neither a fiscal year end nor a fiscal quarter end, its consolidated balance sheet and related statements of income, stockholders' equity and cash flows as of the end of and for such month and the then elapsed portion of the fiscal year, setting forth in each case in comparative form the figures for the corresponding period or periods of (or, in the case of the balance sheet, as of the end of) the previous fiscal year, all certified by one of its Financial Officers as presenting fairly in all material respects the results of operations of the Company on a consolidated basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments and the absence of footnotes;
(f) by no later than December 15 of each fiscal year, a budget and business plan for the immediately succeeding fiscal year in the form approved by the Company's board of directors, in form, scope and detail satisfactory to the Purchasers and on a quarterly basis for each fiscal quarter of such succeeding fiscal year;
(g) promptly after the same become publicly available, (to the extent not available through electronic means) copies of all periodic and other reports, proxy statements and other materials filed reasonably requested by the Company or Stockholder, to the offices and the properties of the Corporation and its Subsidiaries, including its and their books and records, and to discuss its and their affairs, finances and accounts with its and their officers, all upon reasonable notice and at such reasonable times and as often as the Stockholder may reasonably request; provided that any Subsidiary investigation pursuant to this Section 7(c) shall be conducted in a manner as not to interfere unreasonably with the SEC, or any Governmental Agency succeeding to any or all conduct of the functions business of the SEC, or with any national securities exchange, or distributed by the Company to its stockholders generally, as the case may be;
(h) promptly after the same are delivered to the members of the Board of Directors, copies of all business plans Corporation and other financial plans relating to the Company and/or its Subsidiaries; and
provided, that, in each case, the Corporation shall not be obligated to provide such access or materials if the Corporation determines, in its reasonable judgment, that doing so would reasonably be expected to (i) promptly following result in the disclosure of trade secrets or competitively sensitive information to third parties, (ii) violate applicable law or any request thereforcontractual or other obligation of confidentiality owing to a third party, (iii) jeopardize the protection of an attorney-client privilege, attorney work product protection or other legal privilege (provided, however, that the Corporation shall use reasonable efforts to provide alternative, redacted or substitute documents or information in a manner that would not result in the loss of the ability to assert attorney-client privilege, attorney work product protection or other legal privileges), or (iv) expose the Corporation to risk of liability for disclosure of personal information. In furtherance of the foregoing, each Stockholder agrees that it shall not (and shall cause its Subsidiaries not to) use or disclose any information or materials received pursuant to this Section 7 (or otherwise received from or in respect of the Corporation or its Subsidiaries or which is otherwise related to the Corporation’s or its Subsidiaries’ business) in a manner that would reasonably be expected to be adverse to the Corporation or its Subsidiaries or their respective businesses, except that the foregoing shall not in any way limit, restrict or supersede in any respect any waiver of corporate opportunity doctrine or similar provision in favor of any Stockholder in any of the Corporation’s Governing Documents (including the Charter) (and in the event of any conflict between any such provision and this sentence with respect to any Stockholder, such other information regarding the operations, business affairs and financial condition of the Company or any Subsidiary, or compliance with the terms of the this Agreement or any Related Document, as the Purchasers may reasonably requestprovision shall control).
Appears in 1 contract
Sources: Stockholders Agreement (Allegro Microsystems, Inc.)
Information Rights. The Company shall furnish In order to each Purchaser who holds at least 5% of the Common Stock on a fully diluted as if converted basis (and regardless to each of GE and Midwest if such Purchaser holds at least a majority of the Series B Shares such Purchaser purchased hereunder):
facilitate (a) the PSP Fund's and the Investor's compliance with legal and regulatory requirements applicable to the beneficial ownership by the Investor and its Affiliates of equity securities of the Company, and (b) oversight of the PSP Fund's and the Investor's investment in the Company, for so long as the 10% Beneficial Holding Requirement continues to be satisfied, the Company agrees promptly to provide the PSP Fund with the following: (i) within 105 90 days after the end of each fiscal year of the Company, (orA) an audited, if required to be filed with the SEC sooner, then concurrently with such filing), its Form 10-K containing its audited consolidated balance sheet of the Company and related statements of income, stockholders' equity and cash flows its Subsidiaries as of the end of such fiscal year and for such year(B) audited, setting forth consolidated statements of income (with comparison to prior year and, commencing in each case the calendar year 2021, budget), reconciliation of net income to adjusted EBITDA, comprehensive income, cash flows and changes in comparative form the figures for the previous fiscal year, all reported on by PriceWaterhouseCoopers or other independent public accountants of recognized national standing (without any qualification or exception as to the scope of such audit) to the effect that such consolidated financial statements present fairly in all material respects the financial condition and results of operations shareholders' equity of the Company and its consolidated Subsidiaries for such fiscal year; provided that this requirement shall be deemed to have been satisfied if on a consolidated basis in accordance or prior to such date the Company files its annual report on Form 10-K for the applicable fiscal year with GAAP consistently applied;
the SEC; (bii) within 105 days after the end of each fiscal year (or, if required to be filed with the SEC sooner, then concurrently with such filing), its consolidated balance sheets and related statements of income, stockholders' equity and cash flows as of the end of and for such year, setting forth in each case in comparative form the figures for the previous fiscal year, all certified by one of its Financial Officers as presenting fairly in all material respects the results of operations of the Company on a consolidated basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments and the absence of footnotes;
(c) within 60 45 days after the end of each of the first three fiscal quarters of each fiscal year of the Company, (orA) an unaudited, if required to be filed with the SEC sooner, then concurrently with such filing), its Form 10-Q containing its consolidated balance sheet of the Company and related statements of income, stockholders' equity and cash flows its Subsidiaries as of the end of and for such fiscal quarter and (B) consolidated statements of income (with comparison to prior year and, commencing in the then elapsed portion calendar year 2021, budget), reconciliation of net income to adjusted EBITDA, comprehensive income and cash flows of the Company and its Subsidiaries for such fiscal yearquarter; provided that this requirement shall be deemed to have been satisfied if on or prior to such date the Company files its quarterly report on Form 10-Q for the applicable fiscal quarter with the SEC; (iii) within 15 Business Days after the end of each month, setting forth consolidated statements of pre-Tax income, adjusted EBITDA and capital expenditures (in each case case, with a comparison to prior year and, commencing in comparative form the figures for the corresponding period or periods of (or2021, in the case budget), of the balance sheet, as of the end of) the previous fiscal year;
Company and its Subsidiaries for such month; (div) within 60 45 days after the end of each of the first three fiscal quarters of each fiscal yearquarter, its consolidated balance sheet and related statements of income, stockholders' equity and cash flows as of the end of and a quarterly reforecast budget (which will include detail on capital expenditures for such fiscal quarter and the then elapsed portion of the fiscal year, setting forth in each case in comparative form the figures for the corresponding period or periods of quarter); (or, in the case of the balance sheet, as of the end of) the budget and previous fiscal year, all certified by one of its Financial Officers as presenting fairly in all material respects the results of operations of the Company on a consolidated basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments and the absence of footnotes;
(e) within 30 days after the end of each month which is neither a fiscal year end nor a fiscal quarter end, its consolidated balance sheet and related statements of income, stockholders' equity and cash flows as of the end of and for such month and the then elapsed portion of the fiscal year, setting forth in each case in comparative form the figures for the corresponding period or periods of (or, in the case of the balance sheet, as of the end of) the previous fiscal year, all certified by one of its Financial Officers as presenting fairly in all material respects the results of operations of the Company on a consolidated basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments and the absence of footnotes;
(f) by no later than December 15 of each fiscal year, a budget and business plan for the immediately succeeding fiscal year in the form approved by the Company's board of directors, in form, scope and detail satisfactory to the Purchasers and on a quarterly basis for each fiscal quarter of such succeeding fiscal year;
(g) promptly after the same become publicly available, (to the extent not available through electronic meansv) copies of all periodic material, substantive materials (which may include monthly financial information, budget and other reportsbusiness plans, proxy statements and other materials filed by material documents provided to creditors, among others) provided to the Board at substantially the same time as provided to the Board; provided that the Company shall not be obligated to provide such access or any Subsidiary with materials set forth in this Section 5.20 if the SECCompany determines, in its reasonable judgment, that doing so could (w) result in the disclosure of trade secrets or competitively sensitive information to third parties, (x) materially violate applicable Law, (y) jeopardize the protection of an attorney-client privilege, attorney work product protection or other legal privilege, or any Governmental Agency succeeding to any or all of the functions of the SEC, or with any national securities exchange, or distributed by (z) expose the Company to its stockholders generally, as risk of liability for disclosure of personal information; and (vi) the case may be;
(hinformation set forth on Section 5.20(v) promptly after the same are delivered to the members of the Board of Directors, copies of all business plans and other financial plans relating to the Company and/or its Subsidiaries; and
(i) promptly following any request therefor, such other information regarding the operations, business affairs and financial condition of the Company or any Subsidiary, or compliance with the terms of the this Agreement or any Related Document, as the Purchasers may reasonably requestDisclosure Letter.
Appears in 1 contract
Information Rights. (1) The Company Coop shall furnish prepare and deliver to each Purchaser who holds at least 5% of the Common Stock on a fully diluted as if converted basis (and regardless to each of GE and Midwest if such Purchaser holds at least a majority of the Series B Shares such Purchaser purchased hereunder):all Unitholders:
(a) within 105 days as soon as available after the end of each fiscal year (orfinancial year, if required to be filed with and in any event within 90 days of the SEC soonerend of each financial year, then concurrently with such filing)audited financial statements of the Coop, its Form 10-K containing its including audited consolidated balance sheet sheets of the Coop and related the Coop Subsidiaries, as at the end of such financial year, and audited consolidated statements of income, stockholders' equity retained earnings and changes in cash flows as flow of the end of Coop and the Coop Subsidiaries, if any, for such year, setting forth in each case in comparative form the corresponding figures for the previous fiscal financial year, all reported on prepared in accordance with IFRS and accompanied by PriceWaterhouseCoopers or other independent public accountants of recognized national standing (without any qualification or exception as to a report and opinion thereon by the scope of such audit) to the effect Coop’s auditors, which audit report must state that such consolidated financial statements present fairly in all material respects position as of such date and the financial condition and consolidated results of operations of and cash flows for the Company and its consolidated Subsidiaries on a consolidated basis periods indicated, are in accordance conformity with GAAP consistently appliedIFRS;
(b2) within 105 days The Coop shall prepare and deliver to all Unitholders that at any time own 1% or more of all Units:
(a) as soon as available after the end of each fiscal year three-month period (or, if required to be filed commencing with the SEC sooner, then concurrently with such filingthree-month period ending on the first full calendar quarter end after the entering into of this Agreement), its and in any event within 14 Business Days following the last day of Q1, Q2 and Q3, and 16 Business Days following Q4, unaudited consolidated balance sheets and related statements of incomethe Coop, stockholders' equity and cash flows as of the end of such three-month period, and unaudited consolidated statements of income, retained earnings and changes in cash flow of the Coop, for such three-month period and the financial year to date, prepared in accordance with IFRS (subject to normal year-end adjustments and without footnote disclosure), setting forth in each case in comparative form the corresponding figures for the corresponding three-month period of the previous fiscal financial year, all certified together with an analysis by one management of its Financial Officers as presenting fairly in all material respects the results of operations of the Company on a consolidated basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments and the absence of footnotesCoop;
(cb) within 60 days as soon as available after the end of each of month (commencing on the first three fiscal quarters full calendar month end after the entering into of each fiscal year (or, if required to be filed with the SEC sooner, then concurrently with such filingthis Agreement), its Form 10-Q containing its consolidated balance sheet and related statements of income, stockholders' equity and cash flows as of the end of and for such fiscal quarter and the then elapsed portion of the fiscal year, setting forth in each case in comparative form the figures for the corresponding period or periods of (or, in the case of the balance sheet, as of the end of) the previous fiscal year;
(d) within 60 days after the end of each of the first three fiscal quarters of each fiscal year, its consolidated balance sheet and related statements of income, stockholders' equity and cash flows as of the end of and for such fiscal quarter and the then elapsed portion of the fiscal year, setting forth in each case in comparative form the figures for the corresponding period or periods of (or, in the case of the balance sheet, as of the end of) the budget and previous fiscal year, all certified by one of its Financial Officers as presenting fairly in all material respects the results of operations of the Company on a consolidated basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments and the absence of footnotes;
(e) any event within 30 days after the end of each month which is neither a fiscal year end nor a fiscal quarter endsuch month, its unaudited consolidated balance sheet sheets of the Coop and related statements of incomeits subsidiaries, stockholders' equity and cash flows if any, as of the end of such month, and unaudited consolidated statements of income, retained earnings and changes in cash flow of the Coop and its subsidiaries, if any, for such month and the then elapsed portion of the fiscal yearfinancial year to date, setting forth in each case in comparative form the figures for the corresponding period or periods of (or, in the case of the balance sheet, as of the end of) the previous fiscal year, all certified by one of its Financial Officers as presenting fairly in all material respects the results of operations of the Company on a consolidated basis prepared in accordance with GAAP consistently applied, IFRS (subject to normal year-end audit adjustments and without footnote disclosure), setting forth in comparative form the absence of footnotes;
(f) by no later than December 15 of each fiscal year, a budget and business plan corresponding figures for the immediately succeeding fiscal year in the form approved by the Company's board of directors, in form, scope and detail satisfactory to the Purchasers and on a quarterly basis for each fiscal quarter of such succeeding fiscal year;
(g) promptly after the same become publicly available, (to the extent not available through electronic means) copies of all periodic and other reports, proxy statements and other materials filed by the Company or any Subsidiary with the SEC, or any Governmental Agency succeeding to any or all corresponding month of the functions of the SEC, or with any national securities exchange, or distributed by the Company to its stockholders generally, as the case may be;
(h) promptly after the same are delivered to the members of the Board of Directors, copies of all business plans and other previous financial plans relating to the Company and/or its Subsidiariesyear; and
(ic) promptly following any request therefor, such other financial and business information regarding as any Unitholder that at any time owns more than 1% of all Units may reasonably request from the operationsCoop from time to time.
(3) In respect of any information provided to any Unitholder pursuant to this Section 7.06, business affairs the Coop shall procure that the other Unitholders that at any time own 1% or more of all Units shall receive a copy of such information and financial condition of have the Company same rights or any Subsidiary, or compliance with the terms of the this Agreement or any Related Documentaccess, as much as reasonably possible at the Purchasers may reasonably requestsame time.
Appears in 1 contract
Information Rights. (a) The Company shall furnish to each Purchaser who holds at least 5% Investor (provided that such Investor agrees to maintain the confidentiality thereof, it being understood that, in the case of the Common Stock on a fully diluted Intel, such agreement is set forth in that certain Corporate Non-Disclosure Agreement dated May 4, 1999), as if converted basis (and regardless to each of GE and Midwest if such Purchaser holds at least a majority of the Series B Shares such Purchaser purchased hereunder):
(a) within 105 days soon as practicable after the end of each fiscal year year, and in any event within ninety (or90) days thereafter, if required to be filed with the SEC sooner, then concurrently with such filing), its Form 10-K containing its audited consolidated balance sheet and related statements of income, stockholders' equity and cash flows as of the end of and for such year, setting forth in each case in comparative form the figures for the previous fiscal year, all reported on by PriceWaterhouseCoopers or other independent public accountants of recognized national standing (without any qualification or exception as to the scope of such audit) to the effect that such consolidated financial statements present fairly in all material respects the financial condition and results of operations sheets of the Company and its subsidiaries, if any, as at the end of such fiscal year, and audited consolidated Subsidiaries on a consolidated basis statements of income and cash flows of the Company and its subsidiaries, if any, for such fiscal year, prepared in accordance with GAAP consistently applied;generally accepted accounting principles, all in reasonable detail and accompanied by a report and opinion thereon, by independent public accountants selected by the Company's Board of Directors.
(b) within 105 days after In addition to the end information specified in Section 4.1(a) above, the Company shall furnish to any Holder of each fiscal year at least 1,000,000 Series A Shares, Series B Shares, or common stock issued upon conversion thereof (oras adjusted for any combinations, if required consolidations, stock distributions or stock dividends with respect to be filed with the SEC sooner, then concurrently with such filingshares), its consolidated balance sheets and related statements of income, stockholders' equity and cash flows as the following reports provided such Holder agrees to maintain the confidentiality of the end following information to the extent specified by the Board of and for Directors (it being understood that, in the case of Intel, such year, setting agreement is set forth in each case in comparative form the figures for the previous fiscal yearthat certain Corporate Non-Disclosure Agreement dated May 4, all certified by one of its Financial Officers as presenting fairly in all material respects the results of operations of the Company on a consolidated basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments and the absence of footnotes;1999):
(ci) As soon as practicable, but in any event within 60 forty-five (45) days after the end of each of the first three fiscal (3) quarters of each fiscal year (orof the Company, if required to be filed with the SEC sooneran unaudited profit or loss statement and statement of cash flows, then concurrently with such filing), its Form 10-Q containing its consolidated and an unaudited balance sheet and related statements of income, stockholders' equity and cash flows as of the end of and for such fiscal quarter and the then elapsed portion of the fiscal year, setting forth in each case in comparative form the figures for the corresponding period or periods of (or, in the case of the balance sheet, as of the end of) the previous fiscal yearquarter;
(dii) As soon as practicable, but in any event within 60 days after the end of each of the first three fiscal quarters of each fiscal year, its consolidated balance sheet and related statements of income, stockholders' equity and cash flows as of the end of and for such fiscal quarter and the then elapsed portion of the fiscal year, setting forth in each case in comparative form the figures for the corresponding period or periods of thirty (or, in the case of the balance sheet, as of the end of30) the budget and previous fiscal year, all certified by one of its Financial Officers as presenting fairly in all material respects the results of operations of the Company on a consolidated basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments and the absence of footnotes;
(e) within 30 days after the end of each month which is neither a fiscal year end nor a fiscal quarter end, its consolidated balance sheet an unaudited monthly profit and related statements of income, stockholders' equity loss statement and cash flows flow statement and balance sheet; and
(iii) As soon as of practicable, but in any event at least thirty (30) days before the end of and for such month and the then elapsed portion of the fiscal year, setting forth in each case in comparative form the figures for the corresponding period or periods of (or, in the case of the balance sheet, as of the end of) the previous fiscal year, all certified by one of its Financial Officers as presenting fairly in all material respects the results of operations of the Company on a consolidated basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments and the absence of footnotes;
(f) by no later than December 15 of each fiscal year, a budget and business plan for the immediately succeeding next fiscal year year, in the such manner and form as approved by the Board of Directors of the Company's board , which financial plan shall include a projection of directors, in form, scope income and detail satisfactory to a projected cash flow statement for such fiscal year and a projected balance sheet as of the Purchasers and on a quarterly basis for each fiscal quarter end of such succeeding fiscal year;.
(gc) promptly after Provided the same become publicly availableHolder continues to hold at least 1,000,000 Series A Shares, (to the extent not available through electronic means) copies of all periodic and other reports, proxy statements and other materials filed by the Company or any Subsidiary with the SECSeries B Shares, or any Governmental Agency succeeding to any or all of the functions of the SEC, or with any national securities exchange, or distributed by the Company to its stockholders generally, common stock issued upon conversion thereof (as the case may be;
(h) promptly after the same are delivered to the members of the Board of Directors, copies of all business plans and other financial plans relating to the Company and/or its Subsidiaries; and
(i) promptly following any request therefor, such other information regarding the operations, business affairs and financial condition of the Company or any Subsidiary, or compliance with the terms of the this Agreement or any Related Document, as the Purchasers may reasonably request.adjusted for any
Appears in 1 contract
Information Rights. The Company So long as Buyer from time to time maintains the Initial Buyer Percentage, complies with its obligations under Section 3.4 hereof and maintains the disclosed information in confidence as required in Rule l00(2)(ii) of Regulation FD, Issuer shall furnish deliver to each Purchaser who holds at least 5% of the Common Stock on a fully diluted as if converted basis (and regardless to each of GE and Midwest if such Purchaser holds at least a majority of the Series B Shares such Purchaser purchased hereunder):Buyer:
(a) as soon as practicable and, in any event, within 105 days thirty (30) Business Days (or such earlier date that the information is available to Issuer) after the end of each fiscal year month, (or, if required to be filed with i) the SEC sooner, then concurrently with such filing), its Form 10-K containing its audited unaudited consolidated balance sheet sheets of Issuer and related statements of income, stockholders' equity and cash flows its Subsidiaries as of the end of such month and the related unaudited statements of operations for such month and for such yearthe portion of the fiscal year then ended, setting forth in each case in comparative form and (ii) a written management report for Issuer and its Subsidiaries, which contains, without limitation, analyses of the figures for the previous fiscal year, all reported on by PriceWaterhouseCoopers or other independent public accountants of recognized national standing (without any qualification or exception as to the scope of such audit) to the effect that such consolidated financial statements present fairly in all material respects the financial condition and operating results of operations of the Company and its consolidated Subsidiaries Issuer on a consolidated basis basis, a comparison of actual performance for such month and year to date against the budget for such month and against the financial results for the corresponding month in accordance with GAAP consistently appliedthe preceding fiscal year;
(b) as soon as practicable and, in any event, within 105 forty-five (45) days after (or such earlier date that the end of each fiscal year (or, if required information is available to be filed with the SEC sooner, then concurrently with such filing), its consolidated balance sheets and related statements of income, stockholders' equity and cash flows as of the end of and for such year, setting forth in each case in comparative form the figures for the previous fiscal year, all certified by one of its Financial Officers as presenting fairly in all material respects the results of operations of the Company on a consolidated basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments and the absence of footnotes;
(cIssuer) within 60 days after the end of each of the first three fiscal quarters of each fiscal year quarters, (or, if required to be filed with i) the SEC sooner, then concurrently with such filing), its Form 10-Q containing its unaudited consolidated balance sheet and related sheets, statements of income, stockholders' ’ equity and comprehensive income and statements of cash flows of Issuer and its Subsidiaries as of the end of and for such fiscal quarter and the then elapsed related unaudited statements of operations for such quarter and for the portion of the fiscal yearyear then ended, setting forth in each case in comparative form and (ii) a written management report for Issuer and its Subsidiaries, which contains, without limitation, analyses of the figures operating results of Issuer on a consolidated basis, a comparison of actual performance for such quarter and year to date against the budget for such periods and against the financial results for the corresponding period or periods of in the preceding fiscal year; and
(orc) as soon as practicable and, in any event, within seventy-five (75) days (or such earlier date that the case of the balance sheet, as of the end ofinformation is available to Issuer) the previous fiscal year;
(d) within 60 days after the end of each of the first three fiscal quarters of each fiscal year, its (i) the audited consolidated balance sheet and related sheets, statements of income, stockholders' ’ equity and comprehensive income and statements of cash flows of Issuer and its Subsidiaries as of the end of such fiscal year and the related audited statements of operations for such fiscal quarter year, and the then elapsed portion (ii) a written management report for Issuer and its Subsidiaries, which contains, without limitation, analyses of the fiscal year, setting forth in each case in comparative form the figures for the corresponding period or periods of (or, in the case of the balance sheet, as of the end of) the budget and previous fiscal year, all certified by one of its Financial Officers as presenting fairly in all material respects the operating results of operations of the Company Issuer on a consolidated basis basis, a comparison of actual performance against the annual budget for such year and against financial results for the preceding fiscal year. For purposes of this Section 5, Buyer shall be deemed to have maintained the Initial Buyer Percentage if from time to time the Buyer Percentage is less than the Initial Buyer Percentage by less than 1%. Without limiting the generality of the foregoing, in no event shall Buyer be deemed to have failed to maintain the Initial Buyer Percentage if, with respect to any Dilutive Event that decreases the Buyer Percentage to below the Initial Buyer Percentage, Buyer has provided a written notice to Issuer of its desire to acquire Additional Shares in accordance with GAAP consistently applied, subject to normal year-end audit adjustments and the absence of footnotes;
(e) within 30 days after the end of each month which is neither a fiscal year end nor a fiscal quarter end, its consolidated balance sheet and related statements of income, stockholders' equity and cash flows as of the end of and for such month and the then elapsed portion of the fiscal year, setting forth in each case in comparative form the figures for the corresponding period or periods of (or, in the case of the balance sheet, as of the end of) the previous fiscal year, all certified by one of its Financial Officers as presenting fairly in all material respects the results of operations of the Company on a consolidated basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments and the absence of footnotes;
(f) by no later than December 15 of each fiscal year, a budget and business plan for the immediately succeeding fiscal year in the form approved by the Company's board of directors, in form, scope and detail satisfactory to the Purchasers and on a quarterly basis for each fiscal quarter of such succeeding fiscal year;
(g) promptly after the same become publicly available, (to the extent not available through electronic means) copies of all periodic and other reports, proxy statements and other materials filed by the Company or any Subsidiary with the SEC, or any Governmental Agency succeeding to any or all of the functions of the SEC, or with any national securities exchange, or distributed by the Company to its stockholders generally, as the case may be;
(h) promptly after the same are delivered to the members of the Board of Directors, copies of all business plans and other financial plans relating to the Company and/or its Subsidiaries; and
(i) promptly following any request therefor, such other information regarding the operations, business affairs and financial condition of the Company or any Subsidiary, or compliance with the terms of the this Agreement or any Related Document, as the Purchasers may reasonably requestSection 2.4(b).
Appears in 1 contract
Sources: Investor's Rights and Standstill Agreement (Ucbh Holdings Inc)
Information Rights. The Company shall Corporation will furnish to each Purchaser who holds Sanken, for so long as Sanken and its Affiliates beneficially own, directly or indirectly, in the aggregate at least 5% ten percent (10%) of all issued and outstanding shares of Common Stock, the Common Stock on a fully diluted as if converted basis (and regardless to each of GE and Midwest if such Purchaser holds at least a majority of the Series B Shares such Purchaser purchased hereunder):following information:
(a) within 105 as soon as available, but no later than the later of (i) ninety (90) days after following completion of each fiscal year and (ii) the applicable filing deadline under SEC rules, the audited consolidated balance sheet of the Corporation and its Subsidiaries as at the end of each such fiscal year (or, if required to be filed with and the SEC sooner, then concurrently with such filing), its Form 10-K containing its audited consolidated balance sheet and related statements of income, stockholders' equity and cash flows as and changes in stockholders’ equity for such year of the end of Corporation and for such yearits Subsidiaries, setting forth in each case in comparative form the figures for the previous next preceding fiscal year, all reported on accompanied by PriceWaterhouseCoopers or other the report of independent certified public accountants of recognized national standing (without any qualification standing; provided that this requirement shall be deemed to have been satisfied if, on or exception as prior to such date, the scope of such audit) to Corporation files its annual report on Form 10-K for the effect that such consolidated financial statements present fairly in all material respects applicable fiscal year with the financial condition and results of operations of the Company and its consolidated Subsidiaries on a consolidated basis in accordance with GAAP consistently appliedSEC;
(b) as soon as available, but no later than the later of (i) forty-five (45) days following completion of each fiscal quarter (other than the fourth fiscal quarter) and (ii) the applicable filing deadlines under SEC rules, the consolidated balance sheet of the Corporation and its Subsidiaries as at the end of such quarter and the consolidated statements of income, cash flows and changes in stockholders' equity for such quarter and the portion of the fiscal year then ended of the Corporation and its Subsidiaries, setting forth in each case the figures for the corresponding periods of the previous fiscal year in comparative form; provided that this requirement shall be deemed to have been satisfied if, on or prior to such date, the Corporation files its quarterly report on Form 10-Q for the applicable fiscal quarter with the SEC; and
(c) within 105 ninety (90) days after the end of each fiscal year (or, if required to be filed with the SEC sooner, then concurrently with such filing), its consolidated balance sheets and related statements of income, stockholders' equity and cash flows as of the end of and for such year, setting forth in each case in comparative form such information that the figures Corporation then-has which is reasonably necessary for the previous fiscal yearpreparation of Sanken’s income tax returns (whether federal, all certified by one of its Financial Officers as presenting fairly in all material respects the results of operations of the Company on a consolidated basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments and the absence of footnotes;
(c) within 60 days after the end of each of the first three fiscal quarters of each fiscal year (or, if required to be filed with the SEC sooner, then concurrently with such filingstate or foreign), its Form 10-Q containing its consolidated balance sheet and related statements of income, stockholders' equity and cash flows as of the end of and for such fiscal quarter and the then elapsed portion of the fiscal year, setting forth in each case in comparative form the figures for the corresponding period or periods of (or, in the case of the balance sheet, as of the end of) the previous fiscal year;
(d) within 60 days after the end of each of the first three fiscal quarters of each fiscal year, its consolidated balance sheet and related statements of income, stockholders' equity and cash flows as of the end of and for such fiscal quarter and the then elapsed portion of the fiscal year, setting forth in each case in comparative form the figures for the corresponding period or periods of (or, in the case of the balance sheet, as of the end of) the budget and previous fiscal year, all certified by one of its Financial Officers as presenting fairly in all material respects the results of operations of the Company on a consolidated basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments and the absence of footnotes;
(e) within 30 days after the end of each month which is neither a fiscal year end nor a fiscal quarter end, its consolidated balance sheet and related statements of income, stockholders' equity and cash flows as of the end of and for such month and the then elapsed portion of the fiscal year, setting forth in each case in comparative form the figures for the corresponding period or periods of (or, in the case of the balance sheet, as of the end of) the previous fiscal year, all certified by one of its Financial Officers as presenting fairly in all material respects the results of operations of the Company on a consolidated basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments and the absence of footnotes;
(f) by no later than December 15 of each fiscal year, a budget and business plan for the immediately succeeding fiscal year in the form approved by the Company's board of directors, in form, scope and detail satisfactory to the Purchasers and on a quarterly basis for each fiscal quarter of such succeeding fiscal year;
(g) promptly after the same become publicly available, (to the extent not available through electronic means) copies of all periodic and other reports, proxy statements and other materials filed by the Company or any Subsidiary with the SEC, or any Governmental Agency succeeding to any or all of the functions of the SEC, or with any national securities exchange, or distributed by the Company to its stockholders generally, as the case may be;
(h) promptly after the same are delivered to the members of the Board of Directors, copies of all business plans and other financial plans relating to the Company and/or its Subsidiaries; and
(i) promptly following any request therefor, such other information regarding the operations, business affairs and financial condition of the Company or any Subsidiary, or compliance with the terms of the this Agreement or any Related Document, as the Purchasers may reasonably request.
Appears in 1 contract
Sources: Stockholders Agreement (Allegro Microsystems, Inc.)
Information Rights. The Company shall will furnish to each Purchaser who holds at least 5% of the Common Stock on a fully diluted as if converted basis (and regardless to each of GE and Midwest if such Purchaser holds at least a majority of the Series B Shares such Purchaser purchased hereunder):Purchaser:
(a) within 105 90 days after the end of each fiscal year (orof the Company, if required to be filed with the SEC sooner, then concurrently with such filing), its Form 10-K containing its audited consolidated balance sheet and related statements of incomeoperations, stockholders' equity and cash flows as of the end of and for such year, setting forth in each case in comparative form the figures for the previous fiscal year, all reported on by PriceWaterhouseCoopers Arth▇▇ ▇▇▇e▇▇▇▇ ▇▇▇ or other independent public accountants of recognized national standing (without a "going concern" or like qualification or exception and without any qualification or exception as to the scope of such auditaudit other than as to Unrestricted Subsidiaries (as defined in the Credit Agreement)) to the effect that such consolidated financial statements present fairly in all material respects the financial condition and results of operations of the Company and its consolidated Subsidiaries on a consolidated basis in accordance with GAAP consistently applied;
(b) within 105 days after the end of each fiscal year (or, if required to be filed with the SEC sooner, then concurrently with such filing), its consolidated balance sheets and related statements of income, stockholders' equity and cash flows as of the end of and for such year, setting forth in each case in comparative form the figures for the previous fiscal year, all certified by one of its Financial Officers as presenting fairly in all material respects the results of operations of the Company on a consolidated basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments and the absence of footnotes;
(c) within 60 45 days after the end of each of the first three fiscal quarters of each fiscal year (orof the Company, if required to be filed with the SEC sooner, then concurrently with such filing), its Form 10-Q containing its consolidated balance sheet and related statements of incomeoperations, stockholders' equity and cash flows as of the end of and for such fiscal quarter and the then elapsed portion of the fiscal year, setting forth in each case in comparative form the figures for the corresponding period or periods of (or, in the case of the balance sheet, as of the end of) the previous fiscal year;
(d) within 60 days after the end of each of the first three fiscal quarters of each fiscal year, its consolidated balance sheet and related statements of income, stockholders' equity and cash flows as of the end of and for such fiscal quarter and the then elapsed portion of the fiscal year, setting forth in each case in comparative form the figures for the corresponding period or periods of (or, in the case of the balance sheet, as of the end of) the budget and previous fiscal year, all certified by one of its Financial Officers financial officers as presenting fairly in all material respects the financial condition and results of operations of the Company and its consolidated Subsidiaries on a consolidated basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments and the absence of footnotes;
(ec) within concurrently with any delivery of financial statements under clause (a) or (b) above, a certificate of a financial officer of the Company (i) certifying as to whether an Event of Noncompliance has occurred, or a default or event of default has occurred under the New Notes Indenture or the Credit Agreement and, if an Event of Noncompliance or a default or event of default has occurred, specifying the details thereof and any action taken or proposed to be taken with respect thereto and (ii) stating whether any change in GAAP or in the application thereof has occurred since the date of the Company's audited financial statements referred to in Section 3.8 and, if any such change has occurred, specifying the effect of such change on the financial statements accompanying such certificate.
(d) at least 30 days after prior to the end commencement of each month which is neither a fiscal year end nor of the Borrower, a consolidated budget for such fiscal quarter endyear (in the form provided to the Lenders (as defined in the Credit Agreement), its including a projected consolidated balance sheet and related statements of income, stockholders' equity projected operations and cash flows flow as of the end of and for such month and the then elapsed portion of the fiscal year) and, setting forth in each case in comparative form the figures for the corresponding period or periods promptly when available, any significant revisions of (or, in the case of the balance sheet, as of the end of) the previous fiscal year, all certified by one of its Financial Officers as presenting fairly in all material respects the results of operations of the Company on a consolidated basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments and the absence of footnotessuch budget;
(f) by no later than December 15 of each fiscal year, a budget and business plan for the immediately succeeding fiscal year in the form approved by the Company's board of directors, in form, scope and detail satisfactory to the Purchasers and on a quarterly basis for each fiscal quarter of such succeeding fiscal year;
(ge) promptly after the same become publicly available, (to the extent not available through electronic means) copies of all periodic and other reports, proxy statements and other materials filed by the Company Borrower or any Subsidiary with the SEC, or any Governmental Agency succeeding to any or all of the functions of the SEC, Commission or with any national securities exchange, or distributed by the Company to its stockholders generally, as the case may be;
(f) promptly following the commencement thereof, notice and description in reasonable detail of any litigation or proceeding to which the Company or any of its Subsidiaries is a party, except for any litigation or proceeding which could not reasonably be expected to result in a Material Adverse Effect;
(g) promptly following the occurrence thereof, notice and a description in reasonable detail of any Material Adverse Effect;
(h) as promptly after as practicable (but in any event no earlier than required under the same are delivered to Credit Agreement or New Notes Indenture, as the members case may be), notice of any Default (as defined in the Board Credit Agreement) under the Credit Agreement or an Event of Directors, copies of all business plans and other financial plans relating to Default (as defined in the Company and/or its SubsidiariesNew Notes Indenture) under the New Notes Indenture; and
(i) promptly following any request therefor, such other information regarding the operations, business affairs and financial condition of the Company or any Subsidiary, or compliance with the terms of the this Agreement or any Related Document, as the Purchasers or any Purchaser may reasonably request.
Appears in 1 contract
Sources: Securities Purchase Agreement (Huntsman Packaging of Canada LLC)
Information Rights. The So long as the Purchasers or one or more of their Affiliates hold at least 50% of the number of shares of Common Stock issued or issuable upon conversion of the Series D Shares purchased at the closing, the Company shall furnish to each Purchaser who holds at least 5% holder of the Underlying Common Stock on a fully diluted as if converted basis (and regardless to each of GE and Midwest if such Purchaser holds at least a majority of the Series B Shares such Purchaser purchased hereunder):Stock:
(a) within 105 90 days after the end of each fiscal year (or, if required to be filed with the SEC sooner, then concurrently with such filing)year, its Form 10-K (or, if the Company is no longer subject to the requirements of the Exchange Act, provide reports in substantially the same form and at the same times as would be required if it were subject to the Exchange Act) containing its audited consolidated balance sheet and related statements of income, stockholders' ’ equity and cash flows as of the end of and for such year, setting forth in each case in comparative form the figures for the previous fiscal year, all reported on by PriceWaterhouseCoopers PricewaterhouseCoopers LLP or other independent public accountants of recognized national standing (without a “going concern” or similar qualification relating to the questionable value of assets because of concerns regarding survivability and without any qualification or exception as to the scope of such audit) to the effect that such consolidated financial statements present fairly in all material respects the financial condition and results of operations of the Company and its consolidated Subsidiaries Group on a consolidated basis in accordance with GAAP consistently applied;
(b) within 105 days after the end of each fiscal year (or, if required to be filed with the SEC sooner, then concurrently with such filing), its consolidated balance sheets and related statements of income, stockholders' equity and cash flows as of the end of and for such year, setting forth in each case in comparative form the figures for the previous fiscal yearGAAP, all certified by one of its Financial Officers as presenting fairly in all material respects the results of operations of the Company on a consolidated consolidating basis in accordance with GAAP consistently appliedGAAP, subject to normal year-end audit adjustments and the absence of footnotes;
(cb) within 60 45 days after the end of each of the first three fiscal quarters of each fiscal year (or, if required to be filed with the SEC sooner, then concurrently with such filing)year, its Form 10-Q (or, if the Company is no longer subject to the requirements of the Exchange Act, provide reports in substantially the same form and at the same times as would be required if it were subject to the Exchange Act) containing its consolidated balance sheet and related statements of income, stockholders' equity income and cash flows as of the end of and for such fiscal quarter and the then elapsed portion of the fiscal year, setting forth in each case in comparative form the figures for the corresponding period or periods of (or, in the case of the balance sheet, as of the end of) the previous fiscal year;
(d) within 60 days after the end of each of the first three fiscal quarters of each fiscal year, its consolidated balance sheet and related statements of income, stockholders' equity and cash flows as of the end of and for such fiscal quarter and the then elapsed portion of the fiscal year, setting forth in each case in comparative form the figures for the corresponding period or periods of (or, in the case of the balance sheet, as of the end of) the budget and previous fiscal year, all certified by one of its Financial Officers as presenting fairly in all material respects the results of operations of the Company on a consolidated consolidating basis in accordance with GAAP consistently appliedGAAP, subject to normal year-end audit adjustments and the absence of footnotes;
(ec) within 30 days after the end of each month which is neither month, a fiscal year end nor a fiscal quarter end, its consolidated balance sheet and related statements of income, stockholders' equity income and cash flows as of the end of and for such month and the then elapsed portion of the fiscal year, setting forth in each case in comparative form the figures for the corresponding period or periods of (or, in the case of the balance sheet, as of the end of) the previous fiscal year, all certified by one of its Financial Officers as presenting fairly in all material respects the results of operations of the Company on a consolidated consolidating basis in accordance with GAAP consistently appliedGAAP, subject to normal year-end audit adjustments and the absence of footnotes;
(fd) concurrently with any delivery of financial statements under clauses (a) or (b) above, a certificate of a Financial Officer of the Company (i) certifying as to whether a Remedy Event has occurred or any other material breach of a representation, warranty or covenant contained in this Agreement has occurred and, if a Remedy Event or any such breach has occurred, specifying the details thereof and any action taken or proposed to be taken with respect thereto and (ii) stating whether any change in GAAP or in the application thereof has occurred since the Most Recent Balance Sheet Date and, if any such change has occurred, specifying the effect of such change on the financial statements accompanying such certificate;
(e) by no later than December 15 September 30 of each fiscal year, a budget and business plan for the immediately succeeding fiscal year in the form approved by the Company's board Board of directors, in form, scope and detail satisfactory to the Purchasers and on a quarterly basis for each fiscal quarter of such succeeding fiscal yearDirectors;
(gf) promptly after the same become publicly available, (to the extent not available through electronic means) copies of all periodic and other reports, proxy statements and other materials filed by any member of the Company or any Subsidiary Group with the SEC, or any Governmental Agency succeeding to any or all of the functions of the SEC, or with any national securities exchangeexchange (including AMEX), or distributed by the Company to its stockholders generally, as the case may be;
(h) promptly after the same are delivered to the members of the Board of Directors, copies of all business plans and other financial plans relating to the Company and/or its Subsidiaries; and
(ig) promptly following any request therefor, such other information regarding the operations, business affairs and financial condition of any member of the Company or any SubsidiaryGroup, or compliance with the terms of the this Agreement or any Related Document, as the Purchasers any Purchaser may reasonably request; and
(h) by no later than October 31, 2006, a copy of a cost savings plan that has been presented to the Company’s Board of Directors and that presents in substantial detail the Company’s strategy for improving its profit margins.
Appears in 1 contract
Sources: Series D Convertible Preferred Stock and Warrant Purchase Agreement (SoftBrands, Inc.)
Information Rights. The Company shall furnish (a) Following the Closing Date and so long as the Stockholder continues to each Purchaser who holds beneficially own a number of shares of Preferred Stock representing at least 5% of the outstanding shares of Common Stock (on a fully diluted as if an as-converted basis (basis), the Company agrees to provide each Stockholder and regardless to each of GE and Midwest if such Purchaser holds at least a majority of its Permitted Transferees with the Series B Shares such Purchaser purchased hereunder):following:
(ai) within 105 90 days after the end of each fiscal year of the Company, (orA) an audited, if required to be filed with the SEC sooner, then concurrently with such filing), its Form 10-K containing its audited consolidated balance sheet of the Company and related statements of income, stockholders' equity and cash flows its Subsidiaries as of the end of and for such year, setting forth in each case in comparative form the figures for the previous fiscal year, all reported on by PriceWaterhouseCoopers or other independent public accountants of recognized national standing (without any qualification or exception as to the scope of such auditB) to the effect that such an audited, consolidated financial statements present fairly in all material respects the financial condition and results of operations income statement of the Company and its Subsidiaries for such fiscal year and (C) an audited, consolidated statement of cash flows of the Company and its Subsidiaries for such fiscal year; provided that this requirement shall be deemed to have been satisfied if on a consolidated basis in accordance or prior to such date the Company files its annual report on Form 10-K for the applicable fiscal year with GAAP consistently appliedthe SEC;
(bii) within 105 days after the end of each fiscal year (or, if required to be filed with the SEC sooner, then concurrently with such filing), its consolidated balance sheets and related statements of income, stockholders' equity and cash flows as of the end of and for such year, setting forth in each case in comparative form the figures for the previous fiscal year, all certified by one of its Financial Officers as presenting fairly in all material respects the results of operations of the Company on a consolidated basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments and the absence of footnotes;
(c) within 60 45 days after the end of each of the first three fiscal quarters of each fiscal year of the Company, (orA) an unaudited, if required to be filed with the SEC sooner, then concurrently with such filing), its Form 10-Q containing its consolidated balance sheet of the Company and related statements of income, stockholders' equity and cash flows its Subsidiaries as of the end of such fiscal quarter, (B) an unaudited, consolidated income statement of the Company and its Subsidiaries for such fiscal quarter and the then elapsed portion (C) an unaudited, consolidated statement of cash flows of the fiscal year, setting forth in each case in comparative form the figures for the corresponding period or periods of (or, in the case of the balance sheet, as of the end of) the previous fiscal year;
(d) within 60 days after the end of each of the first three fiscal quarters of each fiscal year, Company and its consolidated balance sheet and related statements of income, stockholders' equity and cash flows as of the end of and Subsidiaries for such fiscal quarter and quarter; provided that this requirement shall be deemed to have been satisfied if on or prior to such date the then elapsed portion of the fiscal year, setting forth in each case in comparative form the figures Company files its quarterly report on Form 10-Q for the corresponding period or periods of (or, in the case of the balance sheet, as of the end of) the budget and previous fiscal year, all certified by one of its Financial Officers as presenting fairly in all material respects the results of operations of the Company on a consolidated basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments and the absence of footnotes;
(e) within 30 days after the end of each month which is neither a fiscal year end nor a applicable fiscal quarter end, its consolidated balance sheet and related statements of income, stockholders' equity and cash flows as of the end of and for such month and the then elapsed portion of the fiscal year, setting forth in each case in comparative form the figures for the corresponding period or periods of (or, in the case of the balance sheet, as of the end of) the previous fiscal year, all certified by one of its Financial Officers as presenting fairly in all material respects the results of operations of the Company on a consolidated basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments and the absence of footnotes;
(f) by no later than December 15 of each fiscal year, a budget and business plan for the immediately succeeding fiscal year in the form approved by the Company's board of directors, in form, scope and detail satisfactory to the Purchasers and on a quarterly basis for each fiscal quarter of such succeeding fiscal year;
(g) promptly after the same become publicly available, (to the extent not available through electronic means) copies of all periodic and other reports, proxy statements and other materials filed by the Company or any Subsidiary with the SEC, or any Governmental Agency succeeding to any or all of the functions of the SEC, or with any national securities exchange, or distributed by the Company to its stockholders generally, as the case may be;
(h) promptly after the same are delivered to the members of the Board of Directors, copies of all business plans and other financial plans relating to the Company and/or its Subsidiaries; and
(iiii) promptly following any request thereforreasonable access, such other information regarding to the operationsextent reasonably requested by a Stockholder, business affairs to the offices and financial condition the properties of the Company or any Subsidiaryand its Subsidiaries, or compliance including its and their books and records, and to discuss its and their affairs, finances and accounts with the terms of the this Agreement or any Related Documentits and their officers, all upon reasonable notice and at such reasonable times and as often as the Purchasers Stockholder may reasonably request; provided that any investigation pursuant to this Section 6.15 shall be conducted in a manner as not to interfere unreasonably with the conduct of the business of the Company and its Subsidiaries;
(b) Notwithstanding anything to contrary in the foregoing, the Company shall not be obligated to provide such access or materials if the Company determines, in its reasonable judgment, that doing so would reasonably be expected to (i) result in the disclosure of trade secrets or competitively sensitive information to third parties, (ii) violate applicable law, an applicable order or a contract or obligation of confidentiality owing to a third party, (iii) jeopardize the protection of an attorney-client privilege, attorney work product protection or other legal privilege (provided, however, that the Company shall use reasonable efforts to provide alternative, redacted or substitute documents or information in a manner that would not result in the loss of the ability to assert attorney-client privilege, attorney work product protection or other legal privileges), or (iv) expose the Company to risk of liability for disclosure of personal information; provided that the Company shall use reasonable best efforts to disclose such information in a manner that would not violate the foregoing.
Appears in 1 contract
Information Rights. The Company shall furnish In order to each Purchaser who holds at least 5% facilitate (i) the Purchasers’ compliance with legal and regulatory requirements applicable to the beneficial ownership by the Purchasers and their Affiliates of equity securities of the Common Stock on a fully diluted as if converted basis Company, and (and regardless to each of GE and Midwest if such Purchaser holds at least a majority ii) oversight of the Series B Shares such Purchaser purchased hereunder):
Purchasers’ investment in the Company, so long as the Providence 25% Beneficial Holding Requirement is satisfied, with respect to the Providence Purchasers, and so long as the Ares 25% Beneficial Holding Requirement is satisfied, with respect to the Ares Purchasers, the Company agrees promptly to provide the Providence Purchasers and/or the Ares Purchasers, as the case may be, with the following: (a) within 105 90 days after the end of each fiscal year of the Company, (ori) an audited, if required to be filed with the SEC sooner, then concurrently with such filing), its Form 10-K containing its audited consolidated balance sheet of the Company and related statements of income, stockholders' equity and cash flows its Subsidiaries as of the end of such fiscal year and for such year(ii) audited, setting forth consolidated statements of income, comprehensive income, cash flows and changes in each case in comparative form the figures for the previous fiscal year, all reported on by PriceWaterhouseCoopers or other independent public accountants of recognized national standing (without any qualification or exception as to the scope of such audit) to the effect that such consolidated financial statements present fairly in all material respects the financial condition and results of operations stockholders’ equity of the Company and its consolidated Subsidiaries for such fiscal year; provided that this requirement shall be deemed to have been satisfied if on or prior to such date (or such later date as may be permitted by the SEC pursuant to a consolidated basis in accordance widely-available extension) the Company files its annual report on Form 10-K for the applicable fiscal year with GAAP consistently applied;
the SEC; (b) within 105 days after the end of each fiscal year (or, if required to be filed with the SEC sooner, then concurrently with such filing), its consolidated balance sheets and related statements of income, stockholders' equity and cash flows as of the end of and for such year, setting forth in each case in comparative form the figures for the previous fiscal year, all certified by one of its Financial Officers as presenting fairly in all material respects the results of operations of the Company on a consolidated basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments and the absence of footnotes;
(c) within 60 45 days after the end of each of the first three fiscal quarters of each fiscal year of the Company, (ori) an unaudited, if required to be filed with the SEC sooner, then concurrently with such filing), its Form 10-Q containing its consolidated balance sheet of the Company and related statements of income, stockholders' equity and cash flows its Subsidiaries as of the end of and for such fiscal quarter and the then elapsed portion of the fiscal year, setting forth in each case in comparative form the figures for the corresponding period or periods of (or, in the case of the balance sheet, as of the end ofii) the previous fiscal year;
(d) within 60 days after the end of each of the first three fiscal quarters of each fiscal year, its consolidated balance sheet and related statements of income, stockholders' equity comprehensive income and cash flows as of the end of Company and its Subsidiaries for such fiscal quarter and quarter; provided that this requirement shall be deemed to have been satisfied if on or prior to such date (or such later date as may be permitted by the then elapsed portion of SEC pursuant to a widely-available extension) the fiscal year, setting forth in each case in comparative form the figures Company files its quarterly report on Form 10-Q for the corresponding period or periods of (or, in the case of the balance sheet, as of the end of) the budget and previous fiscal year, all certified by one of its Financial Officers as presenting fairly in all material respects the results of operations of the Company on a consolidated basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments and the absence of footnotes;
(e) within 30 days after the end of each month which is neither a fiscal year end nor a applicable fiscal quarter end, its consolidated balance sheet with the SEC; and related statements of income, stockholders' equity and cash flows as of the end of and for such month and the then elapsed portion of the fiscal year, setting forth in each case in comparative form the figures for the corresponding period or periods of (or, in the case of the balance sheet, as of the end of) the previous fiscal year, all certified by one of its Financial Officers as presenting fairly in all material respects the results of operations of the Company on a consolidated basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments and the absence of footnotes;
(f) by no later than December 15 of each fiscal year, a budget and business plan for the immediately succeeding fiscal year in the form approved by the Company's board of directors, in form, scope and detail satisfactory to the Purchasers and on a quarterly basis for each fiscal quarter of such succeeding fiscal year;
(g) promptly after the same become publicly available, (to the extent not available through electronic meansc) copies of all periodic material, substantive materials (which may include monthly financial information, budget and other reportsbusiness plans, proxy statements and other material documents provided to creditors, among others) provided to the Board at substantially the same time as provided to the Board; provided that this requirement shall be deemed to have been satisfied with respect to (A) the Providence Purchasers if the Company provides such materials filed to the Providence Director, or, to the extent there is no Providence Director, one Person designated in writing by the Providence Purchasers to receive such materials, which shall be an Affiliate or Representative of the Providence Purchasers and (B) the Ares Purchasers if the Company provides such materials to one Person designated in writing by the Ares Purchasers to receive such materials, which shall be an Affiliate or any Subsidiary with Representative of the SECAres Purchasers; provided, further that the Company shall not be obligated to provide such access or materials set forth in this Section 5.13 if the Company determines, in its reasonable judgment, that doing so would (w) result in the disclosure of trade secrets or competitively sensitive information to third parties (other than the Purchaser Parties), (x) materially violate applicable Law, (y) jeopardize the protection of an attorney-client privilege, attorney work product protection or other legal privilege, or any Governmental Agency succeeding to any or all of the functions of the SEC, or with any national securities exchange, or distributed by (z) expose the Company to its stockholders generally, as the case may be;
(h) promptly after the same are delivered to the members risk of the Board liability for disclosure of Directors, copies of all business plans and other financial plans relating to the Company and/or its Subsidiaries; and
(i) promptly following any request therefor, such other information regarding the operations, business affairs and financial condition of the Company or any Subsidiary, or compliance with the terms of the this Agreement or any Related Document, as the Purchasers may reasonably requestpersonal information.
Appears in 1 contract
Information Rights. The Company shall furnish Following the Closing and so long as the 50% Beneficial Ownership Requirement is satisfied, in order to each Purchaser who holds at least 5% facilitate (i) the Investor Parties’ compliance with legal and regulatory requirements applicable to the beneficial ownership by the Investor Parties and its Affiliates of equity securities of the Common Stock on a fully diluted as if converted basis Company and (and regardless ii) the Investor Representative’s oversight of the Investor Parties’ investment in the Company, the Company agrees to provide each of GE the Investor Parties and Midwest if such Purchaser holds at least a majority of the Series B Shares such Purchaser purchased hereunder):Investor Representative with the following:
(a) within 105 90 days after the end of each fiscal year of the Company, (orA) an audited, if required to be filed with the SEC sooner, then concurrently with such filing), its Form 10-K containing its audited consolidated balance sheet of the Company and related statements of income, stockholders' equity and cash flows its Subsidiaries as of the end of and for such year, setting forth in each case in comparative form the figures for the previous fiscal year, all reported on by PriceWaterhouseCoopers or other independent public accountants of recognized national standing (without any qualification or exception as to the scope of such auditB) to the effect that such an audited, consolidated financial statements present fairly in all material respects the financial condition and results of operations income statement of the Company and its Subsidiaries for such fiscal year and (C) an audited, consolidated statement of cash flows of the Company and its Subsidiaries for such fiscal year; provided that this requirement shall be deemed to have been satisfied if on a consolidated basis in accordance or prior to such date the Company files its annual report on Form 10-K for the applicable fiscal year with GAAP consistently appliedthe SEC;
(b) within 105 days after the end of each fiscal year (or, if required to be filed with the SEC sooner, then concurrently with such filing), its consolidated balance sheets and related statements of income, stockholders' equity and cash flows as of the end of and for such year, setting forth in each case in comparative form the figures for the previous fiscal year, all certified by one of its Financial Officers as presenting fairly in all material respects the results of operations of the Company on a consolidated basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments and the absence of footnotes;
(c) within 60 45 days after the end of each of the first three fiscal quarters of each fiscal year of the Company, (orA) an unaudited, if required to be filed with the SEC sooner, then concurrently with such filing), its Form 10-Q containing its consolidated balance sheet of the Company and related statements of income, stockholders' equity and cash flows its Subsidiaries as of the end of such fiscal quarter, (B) an unaudited, consolidated income statement of the Company and its Subsidiaries for such fiscal quarter and the then elapsed portion (C) an unaudited, consolidated statement of cash flows of the fiscal year, setting forth in each case in comparative form the figures for the corresponding period or periods of (or, in the case of the balance sheet, as of the end of) the previous fiscal year;
(d) within 60 days after the end of each of the first three fiscal quarters of each fiscal year, Company and its consolidated balance sheet and related statements of income, stockholders' equity and cash flows as of the end of and Subsidiaries for such fiscal quarter and quarter; provided that this requirement shall be deemed to have been satisfied if on or prior to such date the then elapsed portion of the fiscal year, setting forth in each case in comparative form the figures Company files its quarterly report on Form 10-Q for the corresponding period or periods of (or, in the case of the balance sheet, as of the end of) the budget and previous fiscal year, all certified by one of its Financial Officers as presenting fairly in all material respects the results of operations of the Company on a consolidated basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments and the absence of footnotes;
(e) within 30 days after the end of each month which is neither a applicable fiscal year end nor a fiscal quarter end, its consolidated balance sheet and related statements of income, stockholders' equity and cash flows as of the end of and for such month and the then elapsed portion of the fiscal year, setting forth in each case in comparative form the figures for the corresponding period or periods of (or, in the case of the balance sheet, as of the end of) the previous fiscal year, all certified by one of its Financial Officers as presenting fairly in all material respects the results of operations of the Company on a consolidated basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments and the absence of footnotes;
(f) by no later than December 15 of each fiscal year, a budget and business plan for the immediately succeeding fiscal year in the form approved by the Company's board of directors, in form, scope and detail satisfactory to the Purchasers and on a quarterly basis for each fiscal quarter of such succeeding fiscal year;
(g) promptly after the same become publicly available, (to the extent not available through electronic means) copies of all periodic and other reports, proxy statements and other materials filed by the Company or any Subsidiary with the SEC, or any Governmental Agency succeeding to any or all of the functions of the SEC, or with any national securities exchange, or distributed by the Company to its stockholders generally, as the case may be;
(h) promptly after the same are delivered to the members of the Board of Directors, copies of all business plans and other financial plans relating to the Company and/or its Subsidiaries; and
(ic) promptly following any request thereforreasonable access, such other information regarding to the operationsextent reasonably requested by the Investor Parties or the Investor Representative, business affairs to the offices and financial condition the properties of the Company or any Subsidiaryand its Subsidiaries, or compliance including its and their books and records, and to discuss its and their affairs, finances and accounts with the terms of the this Agreement or any Related Documentits and their officers, all upon reasonable notice and at such reasonable times and as often as the Purchasers Investor Parties and the Investor Representative may reasonably request; provided that any investigation pursuant to this Section 5.16 shall be conducted in a manner as not to interfere unreasonably with the conduct of the business of the Company and its Subsidiaries; provided that the Company shall not be obligated to provide such access or materials if the Company determines, in its reasonable judgment, that doing so would reasonably be expected to (i) result in the disclosure of trade secrets or competitively sensitive information to third parties, (ii) violate applicable Law, an applicable order or a Contract or obligation of confidentiality owing to a third party, (iii) jeopardize the protection of an attorney-client privilege, attorney work product protection or other legal privilege (provided, however, that the Company shall use reasonable efforts to provide alternative, redacted or substitute documents or information in a manner that would not result in the loss of the ability to assert attorney-client privilege, attorney work product protection or other legal privileges), or (iv) expose the Company to risk of liability for disclosure of personal information; provided that the Parties shall use their commercially reasonable efforts to disclose such information in a manner that would not violate the foregoing. In addition, notwithstanding anything to the contrary contained herein, neither the Company nor any of its Subsidiaries will be required to provide any information or material that relate to, contain or reflect any analyses, studies, notes, memoranda and other information related to or prepared in connection with any Transaction Document or the Transactions or any matters relating thereto or any transactions with or matters relating to the Investor Parties or any Investor Affiliates.
Appears in 1 contract
Information Rights. The following information shall be provided by the Company to the Investors, subject to any restrictions under applicable Law (including if applicable under the Securities and Exchange Board of India (Prohibition of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇) Regulations, 2015):
6.1 The Company shall furnish maintain true books and records of accounts in which full and correct entries shall be made of all its business transactions pursuant to each Purchaser who holds at least 5% a system of accounting established and administered in accordance with GAAP, and shall set aside on its books all such proper accruals and reserves as shall be required under GAAP. The Company shall, provide, and the Promoters shall fully and timely co-operate in providing, to the Investors and to any director on the Board of the Common Stock on a fully diluted Company, such information as if converted basis (and regardless they may request, from time to each of GE and Midwest if such Purchaser holds at least a majority of time, including without limitation, with respect to the Series B Shares such Purchaser purchased hereunder):Company:
(a) as soon as available, but in any event within 105 120 (one hundred and twenty) days after the end of each fiscal year (orFinancial Year, if required to be filed with a copy of the SEC sooner, then concurrently with such filing), its Form 10-K containing its audited consolidated and stand-alone balance sheet sheets of the Company as at the end of such Financial Year and the related consolidated and stand-alone statements of income, stockholders' statements of changes in shareholders’ equity and statements of cash flows as of the end of and Company for such yearFinancial Year, setting forth all in each case reasonable detail and stating in comparative form the figures as at the end of the relevant Financial Year and for the previous fiscal yearFinancial Year accompanied by an opinion of the external auditor of the Company, all reported on by PriceWaterhouseCoopers or other independent public accountants of recognized national standing (without which opinion shall state that such auditor’s audit was conducted in accordance with GAAP and that it is not subject to any qualification or exception as to resulting from a limit on the scope of such audit) to the effect that such consolidated examination of the financial statements present fairly or the underlying data or which could be eliminated by changes in the financial statements or the notes thereto or by the creation of or increase in a reserve or a decreased carrying value of assets; all such financial statements shall be complete and correct in all material respects the financial condition and results of operations of the Company shall be prepared in conformity with GAAP and its consolidated Subsidiaries applied on a consolidated consistent basis in accordance with GAAP consistently appliedthroughout the periods reflected therein except as stated therein;
(b) as soon as available, but in any event within 105 60 (sixty) days after September 30 in each Financial Year of the Company, a copy of the audited consolidated and stand- alone balance sheets of the Company as at the end of such period of the Financial Year and the related consolidated and stand-alone statements of income, statements of changes in shareholders’ equity and statements of cash flows of the Company for such period, all in reasonable detail and stating in comparative form the figures as at the end of the relevant period and for the previous Financial Year accompanied by an opinion of the external auditor of the Company, which opinion shall state that such auditor’s audit was conducted in accordance with GAAP and that it is not subject to any qualification resulting from a limit on the scope of the examination of the financial statements or the underlying data or which could be eliminated by changes in the financial statements or the notes thereto or by the creation of or increase in a reserve or a decreased carrying value of assets; all such financial statements shall be complete and correct in all material respects and shall be prepared in conformity with GAAP and applied on a consistent basis throughout the periods reflected therein except as stated therein;
(c) as soon as available, but in any event not later than 30 (thirty) days after the end of each fiscal year (orquarter of a Financial Year of the Company, if required to be filed with the SEC soonerquarterly MIS statement/management review stating the revenue of the Company for the concerned quarter, then concurrently with such filing)the unaudited balance sheet, its consolidated balance sheets profit and related loss account and cash flow statements of income, stockholders' equity the Company for such quarter detailing key financials of the Company and cash flows as a statement of the key operational performance indicators and statistics at the end of such quarter, in a form reasonably satisfactory to the Investors. The Investors shall also have the right to require this information on a monthly basis and the Company shall be obligated to provide such information promptly;
(d) as soon as available, but in any event not later than 45 (forty five) days prior to the end of each Financial Year of the Company, an annual budget for the next Financial Year including operating and capital budgets and such yearother information requested by the Investors. The annual budget and/or Business Plan shall also include product wise business plans, setting forth in each case in comparative which shall together form the figures consolidated Business Plan for the previous fiscal yearCompany;
(e) minutes of meetings of the Board, all certified by one its committees and of its Financial Officers as presenting fairly in all material respects the results of operations shareholders of the Company within 7 (seven) days of the occurrence of such meetings;
(f) promptly, copies of all documents and other information regularly provided to any other security holder of the Company, including any management or audit or investigative reports provided to any other security holder;
(g) promptly, such additional information and explanation of any event or development at the Company which has a significant impact on the business, operations, profits, conditions (financial or otherwise), prospects, results of operations, properties, assets or liabilities of the Company;
(h) other relevant material information including annual business plans, capital expenditure budgets and management reporting information not set forth above; and
(i) details of any event of force majeure or any other event which could have or has resulted in a consolidated basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments Material Adverse Effect. The Company shall periodically (at least once every quarter) schedule meetings between the representatives of the Investors and the absence management of footnotesthe Company to discuss the information provided pursuant to this Clause 6.1.
6.2 Any other information requested by any of the Investors (acting reasonably) shall be provided promptly to such Investor by the Company or the Promoters.
6.3 The relevant Investors may, at any time, require that the information referred to in this Clause 6 be provided to their Representatives, their Permitted Transferees or any partners or investors of or in such Permitted Transferees, in place of or in addition to the relevant Investors. The Investors will be entitled to share information received from the Company with their Affiliates and Permitted Transferees and all partners and investors in such Permitted Transferees. The Investors may also share such information to the extent they are required to do so by any Government or Governmental Authority (Indian or any relevant foreign equivalent) or under any Law (Indian or any relevant foreign equivalent).
6.4 Upon the listing of the Equity Shares, the Company shall publish any unpublished price sensitive information prior to providing such information to the Investors.
6.5 Subject to Clause 11 (Confidentiality) and to the extent that it is not prohibited by applicable Law, the Company shall give full access to the Investor Group of each Investor and their respective authorised Representatives (including lawyers, accountants, auditors and other professional advisors) to visit and inspect (at such respective Investor Group's cost) all properties, assets, corporate, financial and other records, reports, books, Contracts and commitments of the Company, and to discuss and consult its respective business, actions plans, budgets and finances with the directors and executive officers of the Company, upon the receipt of reasonable prior notice and during working hours on Business Days, without disruption to work. The Company shall procure the consent of any other Persons that may be required for this purpose.
6.6 The Company shall periodically report to the Board, an update on the performance of the Business of the Company by the provision of all such data and information as may be required for this purpose.
6.7 The Company will confirm with TRG once each Financial Year, upon the receipt of 7 (seven)
(a) that the Company has no credit relationships with Citigroup, or if they do have a credit relationship with Citigroup, the nature of the relationship, the amount of credit extended and Citigroup entity extending the credit; and
(b) that the Company and Citigroup do not market the other’s products/services to their respective customers.
6.8 The Company will confirm with NHPEA once each Financial Year, upon the receipt of 7
(a) that the Company has no credit relationships with NHPEA and/or its Permitted Transferees, or if they do have a credit relationship with NHPEA and/or its Permitted Transferees, the nature of the relationship, the amount of credit extended and the entity extending the credit; and
(b) that the Company and NHPEA and/or its Permitted Transferees do not market the other’s products/services to their respective customers.
6.9 The Company will confirm with the Investors once each Financial Year, each Investor’s
6.10 The Company shall, at the end of every Financial Year, issue to each Investor a certification in the form annexed at Annex 4 of this Agreement.
6.11 Further, each Investor shall be entitled to receive information required by it, in respect of the Company, in relation to the following:
(a) risk assets, exposure to market risk, liquidity management, operations, internal controls;
(b) legal and operational risk, and conformance to management policies;
(c) within 60 days after reports on risk assets sufficient to permit an appraisal of credit quality and assessment of exposure to loss, and, for this purpose, full information on the end condition of each of the first three fiscal quarters of each fiscal year (or, if required to be filed with the SEC sooner, then concurrently with such filing), its Form 10-Q containing its consolidated balance sheet and related statements of income, stockholders' equity and cash flows as of the end of and for such fiscal quarter and the then elapsed portion of the fiscal year, setting forth in each case in comparative form the figures for the corresponding period or periods of (or, in the case of the balance sheet, as of the end of) the previous fiscal yearmaterial borrowers;
(d) within 60 days after the end reports on operations and controls, including internal and external audits of each branch(s) of the first three fiscal quarters of each fiscal year, its consolidated balance sheet and related statements of income, stockholders' equity and cash flows as of the end of and for such fiscal quarter and the then elapsed portion of the fiscal year, setting forth in each case in comparative form the figures for the corresponding period or periods of (or, in the case of the balance sheet, as of the end of) the budget and previous fiscal year, all certified by one of its Financial Officers as presenting fairly in all material respects the results of operations of the Company on a consolidated basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments and the absence of footnotes;Company; and
(e) within 30 days after activities and condition of the end Company.
6.12 Such information shall include audits and other reports on financial performance, risk exposure and management of each month which is neither a fiscal year end nor a fiscal quarter endthe Company, its consolidated balance sheet including:
(a) policies, operations, and related controls; and
(b) all transactions with the Company by such Investor Group.
6.13 The Company shall make reports of condition at such times and in such form as the Investors may prescribe. The Investors may require that statements of incomecondition or other reports be published or made available for public inspection.
6.14 The Company shall file such reports on its foreign operations as any Governmental Authority (Indian or any relevant foreign equivalent) or any Law (Indian or any relevant foreign equivalent) may require, stockholders' equity including as to acquisition or disposition of shares.
6.15 The Company shall provide TRG, NHPEA, TPG and cash flows GIC with such information as each of them may reasonably request to determine whether the end of and for such month and the then elapsed portion of the fiscal year, setting forth in each case in comparative form the figures for the corresponding period or periods of (or, Company is a ‘controlled foreign corporation’ as defined in the case of the balance sheet, as of the end of) the previous fiscal year, all certified by one of its Financial Officers as presenting fairly in all material respects the results of operations of US Internal Revenue Code ("CFC"). If it is determined that the Company on is a consolidated basis CFC, the Company shall provide TRG, NHPEA, TPG, GIC, their respective Affiliates and Permitted Transferees and any other shareholders resident in the United States ("US Shareholders") with such information that is contained in the Company’s financial statements prepared in accordance with GAAP consistently appliedthe Indian GAAP, subject as is required to normal year-end audit adjustments timely comply with applicable US federal income tax reporting and any related requirements. It is however clarified that the absence Company is under no obligation to maintain and prepare financial information in accordance with US generally accepted accounting principles.
6.16 Upon receipt of footnotes;
(f) by no later than December 15 of each fiscal yeara reasonable request from TRG, NHPEA, TPG or GIC, the Company shall use commercially reasonable best efforts to assist TRG, NHPEA, TPG and GIC in determining whether the Company is a budget and business plan for the immediately succeeding fiscal year ‘passive foreign investment company’ as defined in the form approved by US Internal Revenue Code ("PFIC"). If it is determined that the Company is a PFIC, the Company shall use commercially reasonable best efforts to obtain and provide TRG, NHPEA, TPG and GIC with such information as TRG, NHPEA, TPG and GIC may reasonably require in order to timely file and maintain a ‘qualified electing fund’ election in the US with respect to the Company's board of directors, in form, scope and detail satisfactory to the Purchasers and on a quarterly basis for each fiscal quarter of such succeeding fiscal year;
(g) promptly after the same become publicly available, (to the extent not available through electronic means) copies of all periodic and other reports, proxy statements and other materials filed by the Company or any Subsidiary with the SEC, or any Governmental Agency succeeding to any or all of the functions of the SEC, or with any national securities exchange, or distributed by the Company to its stockholders generally, as the case may be.
6.17 Upon receipt of a reasonable request from TRG, NHPEA, Alpha TC, GIC or TPG the Company shall provide TRG, NHPEA, Alpha TC, GIC and TPG with an updated legal structure chart showing any change to the Company Group (change includes acquisitions, joint venture arrangements, refinancing of third party or internal debt, internal restructurings, disposals, dissolutions and liquidations).
6.18 Within 90 (ninety) days of the date of this Agreement, the Company shall obtain and maintain the following insurance policies at the cost of the Company on and in relation to its Business, assets and personnel from reputable insurance companies acceptable to the Investors and that maintains a minimum financial strength rating by A. M Best of "A-" or Standard & Poor’s, ▇▇▇▇▇’▇, Insurance Regulatory & Development Authority of India (IRDA) or other similar rating agency of "A":
(a) a keyman insurance policy for the following personnel of the Company for the amounts indicated below: Chairman 10,000,000 166,667 Executive Vice Chairman (subject to availability) 3,000,000 50,000 CEO & MD 6,000,000 100,000 Chief Financial Officer 3,180,000 53,000 Chief Operating Officer (Business Head Retail)(subject to availability) 4,068,000 67,800 Chief Information Officer (IT Head)(subject to availability) 3,230,000 53,833
(b) a directors’ and officers’ liability insurance for the directors of the Company from an insurance company of repute in respect of the Directors for an amount which shall be determined by the Board;
(hc) promptly after comprehensive crime insurance providing coverage for loss due to, but not limited to, theft, counterfeit currency, fraud, extortion or loss of cash occurring inside and outside the same are delivered Company’s premises, caused by third parties. The limits of this insurance shall be in an amount sufficient to the members fully cover all cash maintained at each of the Board Company’s branches and cash which is outside the Company’s premises. The Company will review these insurance limits from time to time to ensure full coverage of Directorscash is maintained;
(d) commercial general liability insurance against claims for bodily injury, copies death and third party property damage occurring in conjunction with the Company’s operations and premises and contractual liability with limits of liability not less than Rs. 120,000,000 (one hundred and twenty million), being approximately the equivalent of US$2 million for any one accident or occurrence and in the aggregate;
(e) fidelity insurance for cashiers and field executives for an amount of Rs. 500,000 (five hundred thousand) per cashier and Rs. 300,000 (three hundred thousand) per field executive;
(f) the Company shall also require that all business plans and other financial plans relating service providers that provide cash management services to the Company and/or its Subsidiaries; andhas possession of the Company’s cash, either at the service providers location or cash in transit shall maintain comprehensive crime/cash in transit coverage providing coverage for loss due to, but not limited to, theft, dishonesty or loss of cash. The limits of this insurance shall be in an amount sufficient to fully cover of the Company’s cash being handled by the service provider. The Company shall obtain from all services providers, prior to their being provided the Company’s cash, evidence that the insurance referred to in this paragraph is in full force and effect and that the premium has been paid;
(ig) promptly following any request therefor, such other information regarding insurance policies to protect its assets, properties and the operationsBusiness for such amounts keeping with good commercial practices against all risks (including but not limited to property all risk and machinery breakdown insurance covering assets including content, business affairs fixtures and financial condition fittings for 100% (one hundred percent) of the Company or any Subsidiary, or compliance with the terms current value of the this Agreement assets as on the date of obtaining such policies, against loss or damage against loss or damage from fire, explosion, earthquake, water apparatus, flood, windstorm, terrorism, damage, injury, fraud, theft and third party loss and such other perils considered necessary or practical and business interruption insurance adequate to cover any Related Document, occurrence of property damage for 12 (twelve) months) as are generally insured against by responsible companies in the same industry as the Purchasers Company and such other risks as may be reasonably requestrequired by the Investors from time to time.
6.19 Member banks, edge and agreement corporations, and bank holding companies shall report, in a manner p
Appears in 1 contract
Sources: Shareholder Agreement
Information Rights. The Company shall furnish deliver to each Purchaser who holds at least 5% of Investor, in form and detail satisfactory to the Common Stock on a fully diluted as if converted basis (and regardless to each of GE and Midwest if such Purchaser holds at least a majority of Investors, the Series B Shares such Purchaser purchased hereunder):following:
(a) Quarterly Statements — as soon as available, but in any event within 105 45 days after the end of each of the first three fiscal quarters of each fiscal year of the Company, duplicate copies of
(i) a consolidated balance sheet of the Group as at the end of such fiscal quarter, and
(ii) the related consolidated statement of income and operations, shareholders’ equity, cash flow and changes in financial position of the Group for such fiscal quarter and (in the case of the second and third quarters) for the portion of the fiscal year ending with such fiscal quarter, in each case setting forth in comparative form the figures for the corresponding periods in the previous fiscal year, prepared in accordance with GAAP (or U.S. GAAP or IFRS, after the adoption of such international accounting principals by the Company pursuant to Section 8.10) applied on a consistent basis, and certified by the Chief Financial Officer of the Company as fairly presenting, in all material respects, the financial position of the companies being reported on and their results of operations and cash flows in accordance with the applicable accounting principals then used by the Group, subject only to normal year-end audit adjustments and the absence of footnotes;
(b) Annual Statements — as soon as available, but in any event within 90 days after the end of each fiscal year of the Company, duplicate copies of
(or, if required to be filed with the SEC sooner, then concurrently with such filing), its Form 10-K containing its audited i) a consolidated balance sheet and related statements of income, stockholders' equity and cash flows the Group as of at the end of such fiscal year, and
(ii) the related consolidated statements of operations, shareholders’ equity, cash flow and changes in financial position of the Group for such fiscal year, setting forth in each case in comparative form the figures for the previous fiscal year, prepared in accordance with the accounting principals then used by the Group applied on a consistent basis, audited by, and accompanied by a report and opinion thereon of, a “big four” international accounting firm or another accounting firm selected by the Investors, which opinion shall state that such financial statements present fairly, in all material respects, the financial position of the companies being reported upon and their results of operations and cash flows and have been prepared in conformity with the applicable accounting principals applied on by PriceWaterhouseCoopers a consistent basis, that the examination of such accountants in connection with such financial statements has been made in accordance with generally accepted auditing standards, that such report and opinion are not subject to any “going concern” or other independent public accountants of recognized national standing (without like qualification or exception or any qualification or exception as to the scope of such audit) to the effect , and that such consolidated financial statements present fairly in all material respects the financial condition and results of operations of the Company and its consolidated Subsidiaries on audit provides a consolidated reasonable basis in accordance with GAAP consistently applied;
(b) within 105 days after the end of each fiscal year (or, if required to be filed with the SEC sooner, then concurrently with such filing), its consolidated balance sheets and related statements of income, stockholders' equity and cash flows as of the end of and for such year, setting forth opinion in each case in comparative form the figures for the previous fiscal year, all certified by one of its Financial Officers as presenting fairly in all material respects the results of operations of the Company on a consolidated basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments and the absence of footnotescircumstances;
(c) Audit Reports, etc. — as soon as available, but in any event within 60 days five Business Days after the end receipt thereof, copies of each all management letters and reports submitted to any Group Company by independent certified public accountants in connection with any annual, interim or special audit of the first three fiscal quarters of each fiscal year (or, if required to be filed with the SEC sooner, then concurrently with Group made by such filing), its Form 10-Q containing its consolidated balance sheet and related statements of income, stockholders' equity and cash flows as of the end of and for such fiscal quarter and the then elapsed portion of the fiscal year, setting forth in each case in comparative form the figures for the corresponding period or periods of (or, in the case of the balance sheet, as of the end of) the previous fiscal yearaccountants;
(d) Notices from Governmental Authority — as soon as available, but in any event within 60 five days after the end of each receipt thereof, copies of the first three fiscal quarters of each fiscal yearany notice to any Group Company from any Governmental Authority relating to any order, its consolidated balance sheet and related statements of incomeruling, stockholders' equity and cash flows as of the end of and for such fiscal quarter and the then elapsed portion of the fiscal year, setting forth in each case in comparative form the figures for the corresponding period statute or periods of (or, in the case of the balance sheet, as of the end of) the budget and previous fiscal year, all certified by one of its Financial Officers as presenting fairly in all material respects the results of operations of the Company on other Laws that could reasonably be expected to have a consolidated basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments and the absence of footnotesMaterial Adverse Effect;
(e) Notice of Litigation — as soon as possible, but in any event within 30 days five Business Days, after the end any Group Company receives actual notice (written or oral) of each month which is neither a fiscal year end nor a fiscal quarter endany proceeding(s) being instituted against any Group Company in any national, its consolidated balance sheet and related statements of incomeprovincial, stockholders' equity and cash flows as of the end of and for such month and the then elapsed portion of the fiscal yearor local court or before any commission or other regulatory body (national, setting forth in each case in comparative form the figures for the corresponding period provincial, or periods of (or, in the case of the balance sheet, as of the end oflocal) the previous fiscal year, all certified by one of its Financial Officers as presenting fairly in all material respects the results of operations of the Company on a consolidated basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments and the absence of footnotes;or arbitration body.
(f) by no later than December 15 of each fiscal yearRequested Information — with reasonable promptness, a budget such other data and business plan for the immediately succeeding fiscal year in the form approved by the Company's board of directors, in form, scope and detail satisfactory information relating to the Purchasers and on a quarterly basis for each fiscal quarter business, operations, affairs, financial condition, assets or property of such succeeding fiscal yearany Group Company or relating to the ability of any Group Company, any Founder or any Controlling Shareholder to perform its or his or her obligations under this Agreement as from time to time may be reasonably requested by Investors;
(g) promptly after the same become publicly available, (to the extent not available through electronic means) copies of all periodic and other reports, proxy statements and other materials filed by the Company or any Subsidiary with the SEC, or any Governmental Agency succeeding to any or all Monthly Reports — within five Business Days of the functions end of the SECeach calendar month, or with any national securities exchange, or distributed by the Company to its stockholders generally, as the case may be;
(h) promptly after the same are delivered to the members of the Board of Directors, copies of all business plans and other financial plans relating to the Company and/or its Subsidiaries; and
(i) promptly following any request therefor, such other information regarding the operations, business affairs a monthly report of cash receipts and financial condition cash disbursements of the Company or any Subsidiary, or compliance with Group for the terms calendar month most recently ended and (ii) a projected monthly report of cash receipts and cash disbursements of the this Agreement or any Related DocumentGroup for the then current calendar month, as in each case substantially in the Purchasers may reasonably requestform agreed to between the Company and the Investors prior to the Closing Date.
Appears in 1 contract
Sources: Share Subscription Agreement (Concord Medical Services Holdings LTD)
Information Rights. The Company Corporation shall furnish deliver to each Purchaser who holds at least 5% the holders of the Common Stock on a fully diluted as if converted basis (Warrants and regardless to each of GE and Midwest if such Purchaser holds at least a majority the holders of the Series B Shares such Purchaser purchased hereunder):Warrant Shares:
(a) As soon as available, and in any event within 105 45 days after the end of each fiscal year Fiscal Quarter of each Fiscal Year (orincluding the fourth Fiscal Quarter of each Fiscal Year), if required to be filed commencing with the SEC soonerFiscal Quarter ended March 31, 2021, the consolidated balance sheets of the Corporation and its Subsidiaries as at the end of such Fiscal Quarter and the related consolidated statements of operations and cash flows of the Corporation and its Subsidiaries for such Fiscal Quarter and for the period from the beginning of the then concurrently current Fiscal Year to the end of such Fiscal Quarter, setting forth, in each case, in comparative form the corresponding figures for the corresponding periods of the previous Fiscal Year and the corresponding figures from the Financial Plan for the current Fiscal Year, all in reasonable detail, together with a Financial Officer Certification and a Narrative Report with respect thereto and any other operating reports prepared by management for such filingperiod.
(b) As soon as available, and in any event within 120 days after the end of each Fiscal Year (commencing with the Fiscal Year ending December 31, 2021), its Form 10-K containing its audited (x) the consolidated balance sheet sheets of the Corporation and its Subsidiaries as at the end of such Fiscal Year and the related consolidated statements of income, stockholders' changes in members’ equity and cash Cash flows as of the end of Corporation and its Subsidiaries for such yearFiscal Year, setting forth forth, in each case case, in comparative form the corresponding figures for the previous fiscal yearFiscal Year and the corresponding figures from the Financial Plan for the Fiscal Year covered by such financial statements, all reported on by PriceWaterhouseCoopers or other in reasonable detail, together with a Financial Officer Certification and a Narrative Report with respect thereto; and (y) with respect to such consolidated financial statements a report thereon of independent certified public accountants of recognized national standing selected by the Corporation and reasonably satisfactory to the Required Warrant Holders (without it being agreed that Ernst & Young LLP is reasonably satisfactory to the Required Warrant Holders), which report shall be unqualified as to “going concern” and scope of audit (other than any qualification or exception as to that is solely with respect to, or resulting solely from, (A) an upcoming maturity date within one year from the scope date of such auditreport of any of the Obligations (as defined in the Credit Agreement as in effect on the Initial Closing Date) or (B) any potential inability to the effect satisfy a financial maintenance covenant on a future date or in a future period), and shall state that such consolidated financial statements present fairly present, in all material respects respects, the consolidated financial condition position of the Corporation and its Subsidiaries as at the dates indicated and the results of their operations of and their Cash flows for the Company and its consolidated Subsidiaries periods indicated in conformity with GAAP applied on a basis consistent with prior years (except as otherwise disclosed in such financial statements) and that the examination by such accountants in connection with such consolidated basis financial statements has been made in accordance with GAAP consistently applied;
(b) within 105 days after the end of each fiscal year (or, if required to be filed with the SEC sooner, then concurrently with such filinggenerally accepted auditing standards), its consolidated balance sheets and related statements of income, stockholders' equity and cash flows as of the end of and for such year, setting forth in each case in comparative form the figures for the previous fiscal year, all certified by one of its Financial Officers as presenting fairly in all material respects the results of operations of the Company on a consolidated basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments and the absence of footnotes;
(c) within 60 days after the end of each of the first three fiscal quarters of each fiscal year (or, if required to be filed with the SEC sooner, then concurrently with such filing), its Form 10-Q containing its consolidated balance sheet and related statements of income, stockholders' equity and cash flows as of the end of and for such fiscal quarter and the then elapsed portion of the fiscal year, setting forth in each case in comparative form the figures for the corresponding period or periods of (or, in the case of the balance sheet, as of the end of) the previous fiscal year;
(d) within 60 days after the end of each of the first three fiscal quarters of each fiscal year, its consolidated balance sheet and related statements of income, stockholders' equity and cash flows as of the end of and for such fiscal quarter and the then elapsed portion of the fiscal year, setting forth in each case in comparative form the figures for the corresponding period or periods of (or, in the case of the balance sheet, as of the end of) the budget and previous fiscal year, all certified by one of its Financial Officers as presenting fairly in all material respects the results of operations of the Company on a consolidated basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments and the absence of footnotes;
(e) within 30 days after the end of each month which is neither a fiscal year end nor a fiscal quarter end, its consolidated balance sheet and related statements of income, stockholders' equity and cash flows as of the end of and for such month and the then elapsed portion of the fiscal year, setting forth in each case in comparative form the figures for the corresponding period or periods of (or, in the case of the balance sheet, as of the end of) the previous fiscal year, all certified by one of its Financial Officers as presenting fairly in all material respects the results of operations of the Company on a consolidated basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments and the absence of footnotes;
(f) by no later than December 15 of each fiscal year, a budget and business plan for the immediately succeeding fiscal year in the form approved by the Company's board of directors, in form, scope and detail satisfactory to the Purchasers and on a quarterly basis for each fiscal quarter of such succeeding fiscal year;
(g) promptly after the same become publicly available, (to the extent not available through electronic means) copies of all periodic and other reports, proxy statements and other materials filed by the Company or any Subsidiary with the SEC, or any Governmental Agency succeeding to any or all of the functions of the SEC, or with any national securities exchange, or distributed by the Company to its stockholders generally, as the case may be;
(h) promptly after the same are delivered to the members of the Board of Directors, copies of all business plans and other financial plans relating to the Company and/or its Subsidiaries; and
(i) promptly following any request therefor, such other information regarding the operations, business affairs and financial condition of the Company or any Subsidiary, or compliance with the terms of the this Agreement or any Related Document, as the Purchasers may reasonably request.
Appears in 1 contract
Sources: Purchase Agreement (Priority Technology Holdings, Inc.)
Information Rights. The Company shall furnish deliver to each Purchaser Investor who holds continues to hold at least five percent (5% %) of the Common Company’s Preferred Stock on a fully diluted as if converted basis (subject to appropriate adjustment for stock splits, stock dividends, combinations and regardless to each of GE and Midwest if such Purchaser holds at least a majority of the Series B Shares such Purchaser purchased hereunderother recapitalizations):
(a) as soon as practicable, but in any event within 105 one hundred twenty (120) calendar days after the end of each fiscal year (orof the Company, or such longer period as may be approved by the Board, consolidated balance sheets of the Company and its subsidiaries, if required to be filed with the SEC soonerany, then concurrently with such filing), its Form 10-K containing its audited consolidated balance sheet and related statements of income, stockholders' equity and cash flows as of the end of and for such year, setting forth in each case in comparative form the figures for the previous fiscal year, all reported on by PriceWaterhouseCoopers or other independent public accountants and consolidated statements of recognized national standing (without any qualification or exception as to the scope income and consolidated statements of such audit) to the effect that such consolidated financial statements present fairly in all material respects the financial condition and results of operations cash flows of the Company and its consolidated Subsidiaries on a consolidated basis subsidiaries, if any, for such year, prepared in accordance with GAAP consistently appliedgenerally accepted accounting principles (“GAAP”), all in reasonable detail and audited by independent public accountants of national standing selected by the Company;
(b) as soon as practicable, but in any event within 105 days after the end of each fiscal year forty-five (or, if required to be filed with the SEC sooner, then concurrently with such filing), its consolidated balance sheets and related statements of income, stockholders' equity and cash flows as of the end of and for such year, setting forth in each case in comparative form the figures for the previous fiscal year, all certified by one of its Financial Officers as presenting fairly in all material respects the results of operations of the Company on a consolidated basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments and the absence of footnotes;
(c45) within 60 calendar days after the end of each of the first three fiscal (3) quarters of each fiscal year (orof the Company, consolidated balance sheets of the Company and its subsidiaries, if required to be filed with the SEC soonerany, then concurrently with such filing), its Form 10-Q containing its consolidated balance sheet and related statements of income, stockholders' equity and cash flows as of the end of such quarter, and consolidated statements of income and consolidated statements of cash flows of the Company and its subsidiaries, if any, for such fiscal quarter quarter, prepared in accordance with GAAP, all in reasonable detail and the then elapsed portion a comparison of the fiscal year, setting forth in each case in comparative form quarter’s results with those projected by the figures for the corresponding period or periods of (or, in the case of the balance sheet, as of the end of) the previous fiscal yearCompany’s business plan;
(dc) as soon as practicable, but in any event within 60 thirty (30) calendar days after the end of each month, consolidated balance sheets of the first three fiscal quarters of each fiscal yearCompany and its subsidiaries, its consolidated balance sheet and related statements of incomeif any, stockholders' equity and cash flows as of the end of each such month, and for such fiscal quarter consolidated statements of income and the then elapsed portion consolidated statements of cash flows of the fiscal yearCompany and its subsidiaries, setting forth in if any, for each case in comparative form such month, that fairly present the figures for the corresponding period or periods of (or, in the case financial condition of the balance sheet, as of the end of) the budget and previous fiscal year, all certified by one of its Financial Officers as presenting fairly Company in all material respects the results of operations of the Company on a consolidated basis (which monthly financial statements may or may not be prepared in accordance with GAAP consistently applied, subject to normal year-end audit adjustments and the absence of footnotesGAAP);
(ed) within 30 as soon as practicable, but in any event thirty (30) calendar days after prior to the end of each month which is neither a fiscal year end nor a fiscal quarter end, its consolidated balance sheet and related statements of income, stockholders' equity and cash flows as of the end of and for such month and the then elapsed portion of the fiscal year, setting forth in each case in comparative form the figures for the corresponding period or periods of (or, in the case of the balance sheet, as of the end of) the previous fiscal year, all certified by one of its Financial Officers as presenting fairly in all material respects the results of operations of the Company on a consolidated basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments and the absence of footnotes;
(f) by no later than December 15 of each fiscal year, a budget and business plan for the immediately succeeding next fiscal year in the form approved year, prepared on a monthly basis, including balance sheets and income statements for such months and, as soon as prepared, any other budgets or revised budgets prepared by the Company's board of directors, in form, scope and detail satisfactory to the Purchasers and on a quarterly basis for each fiscal quarter of such succeeding fiscal year;
(g) promptly after the same become publicly available, (to the extent not available through electronic means) copies of all periodic and other reports, proxy statements and other materials filed by the Company or any Subsidiary with the SEC, or any Governmental Agency succeeding to any or all of the functions of the SEC, or with any national securities exchange, or distributed by the Company to its stockholders generally, as the case may be;
(h) promptly after the same are delivered to the members of the Board of Directors, copies of all business plans and other financial plans relating to the Company and/or its Subsidiaries; and
(ie) promptly following as soon as practicable, but in any request thereforevent fifteen (15) calendar days prior to the end of each fiscal year, such other information regarding the operationsa business plan (including head count projections, business affairs sales projections and financial condition of statement projections) for the Company or any Subsidiary, or compliance with the terms of the this Agreement or any Related Document, as the Purchasers may reasonably request.next four (4)
Appears in 1 contract
Information Rights. The Company shall furnish to each Purchaser who holds at least 5% of the Common Stock on a fully diluted as if converted basis (and regardless to each of GE and Midwest if such Purchaser holds at least a majority of the Series B Shares such Purchaser purchased hereunder):
(a) within 105 days Until the consummation of the IPO, the Company will deliver, or will cause to be delivered, the following to (i) each Sponsor until such time as such Sponsor ceases to own any Group Equity Securities and (ii) each other Shareholder until such time as such other Shareholder shall cease to own two percent (2)% of the outstanding Group Equity Securities:
(i) as soon as available after the end of each fiscal year (orof the Company, if required to be filed with the SEC soonerand in any event within 90 days thereafter, then concurrently with such filing), its Form 10-K containing its audited a consolidated balance sheet of the Company and related statements of income, stockholders' equity and cash flows its Subsidiaries as of the end of such fiscal year, and consolidated statements of income, retained earnings and cash flows of the Company and its Subsidiaries for such year, prepared in accordance with GAAP and setting forth in each case in comparative form the figures for the previous fiscal year, all reported on in reasonable detail and accompanied by PriceWaterhouseCoopers or other the opinion of independent public accountants of recognized national standing selected by the Company; and
(without ii) as soon as available after the end of the first, second and third quarterly accounting periods in each fiscal year of the Company, and in any qualification or exception as to the scope of such audit) to the effect that such event within 45 days thereafter, a consolidated financial statements present fairly in all material respects the financial condition and results of operations balance sheet of the Company and its consolidated Subsidiaries on a consolidated basis in accordance with GAAP consistently applied;
(b) within 105 days after the end of each fiscal year (or, if required to be filed with the SEC sooner, then concurrently with such filing), its consolidated balance sheets and related statements of income, stockholders' equity and cash flows as of the end of each such quarterly period, and for such yearconsolidated statements of income, setting forth in each case in comparative form the figures for the previous fiscal year, all certified by one of its Financial Officers as presenting fairly in all material respects the results of operations retained earnings and cash flows of the Company on a consolidated basis and its Subsidiaries for such period and for the current fiscal year to date, prepared in accordance with GAAP consistently applied, (subject to normal year-end audit adjustments and the absence of footnotes;
(cnotes thereto) within 60 days after the end of each of the first three fiscal quarters of each fiscal year (or, if required to be filed with the SEC sooner, then concurrently with such filing), its Form 10-Q containing its consolidated balance sheet and related statements of income, stockholders' equity and cash flows as of the end of and for such fiscal quarter and the then elapsed portion of the fiscal year, setting forth in each case in comparative form the figures for the corresponding period or periods of (or, in the case of the balance sheet, as of the end of) the previous fiscal year;, all in reasonable detail and certified by the principal financial or accounting officer of the Company.
(diii) within 60 days as soon as available after the end of each of the first three fiscal quarters of each fiscal yearmonth and in any event within 20 days thereafter, its a consolidated balance sheet of the Company and related statements of income, stockholders' equity and cash flows its Subsidiaries as of the end of such month and for such fiscal quarter consolidated statements of operations, income, cash flows, retained earnings and the then elapsed portion of the fiscal year, setting forth in each case in comparative form the figures for the corresponding period or periods of (or, in the case of the balance sheet, as of the end of) the budget and previous fiscal year, all certified by one of its Financial Officers as presenting fairly in all material respects the results of operations stockholders’ equity of the Company on a consolidated basis and its Subsidiaries, for each month and for the current fiscal year of the Company to date, prepared in accordance with GAAP consistently applied, (subject to normal year-end audit adjustments and the absence of footnotes;
(e) within 30 days after the end of each month which is neither a fiscal year end nor a fiscal quarter end, its consolidated balance sheet and related statements of income, stockholders' equity and cash flows as of the end of and for such month and the then elapsed portion of the fiscal year, setting forth in each case in comparative form the figures for the corresponding period or periods of (or, in the case of the balance sheet, as of the end of) the previous fiscal year, all certified by one of its Financial Officers as presenting fairly in all material respects the results of operations of the Company on a consolidated basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments and the absence of footnotes;
(f) by no later than December 15 of each fiscal year, a budget and business plan for the immediately succeeding fiscal year in the form approved by the Company's board of directors, in form, scope and detail satisfactory to the Purchasers and on a quarterly basis for each fiscal quarter of such succeeding fiscal year;
(g) promptly after the same become publicly available, (to the extent not available through electronic means) copies of all periodic and other reports, proxy statements and other materials filed by the Company or any Subsidiary with the SEC, or any Governmental Agency succeeding to any or all of the functions of the SEC, or with any national securities exchange, or distributed by the Company to its stockholders generally, as the case may be;
(h) promptly after the same are delivered to the members of the Board of Directors, copies of all business plans and other financial plans relating to the Company and/or its Subsidiaries; and
(i) promptly following any request therefor, such other information regarding the operations, business affairs and financial condition of the Company or any Subsidiary, or compliance with the terms of the this Agreement or any Related Document, as the Purchasers may reasonably requestnotes thereto).
Appears in 1 contract
Information Rights. The Company shall furnish to each Purchaser who hereby covenants and agrees that, commencing on the date of this Agreement, and for so long as any Investor holds at least 5% of 10,000,000 Preferred Shares, the Common Stock on a fully diluted as if converted basis (Company will deliver to such Investor the following with respect to itself and regardless to each of GE and Midwest if such Purchaser holds at least a majority of the Series B Shares such Purchaser purchased hereunder):their respective Subsidiaries:
(ai) audited annual consolidated financial statements within 105 one hundred and twenty (120) days after the end of each fiscal year (oryear, if required to be filed with the SEC sooner, then concurrently with such filing), its Form 10-K containing its including an audited consolidated balance sheet and related statements of income, stockholders' equity and cash flows as of the end of such year and a consolidated statement of operation and a consolidated statement of cash flows for such year, setting forth in each case in comparative form the figures for the previous fiscal year, all reported on by PriceWaterhouseCoopers or other independent public accountants of recognized national standing (without any qualification or exception as to the scope of such audit) to the effect that such consolidated financial statements present fairly in all material respects the financial condition and results of operations of the Company and its consolidated Subsidiaries on a consolidated basis in accordance with GAAP consistently applied;
(b) within 105 days after the end of each fiscal year (or, if required to be filed with the SEC sooner, then concurrently with such filing), its consolidated balance sheets and related statements of income, stockholders' equity and cash flows as of the end of and for such year, setting forth in each case in comparative form the figures for the previous fiscal year, all certified by one of its Financial Officers as presenting fairly in all material respects the results of operations of the Company on a consolidated basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments and the absence of footnotes;
(c) within 60 days after the end of each of the first three fiscal quarters of each fiscal year (or, if required to be filed with the SEC sooner, then concurrently with such filing), its Form 10-Q containing its consolidated balance sheet and related statements of income, stockholders' equity and cash flows as of the end of and for such fiscal quarter and the then elapsed portion of the fiscal year, setting forth in each case in comparative form the figures from the Company’s previous fiscal year, and audited by a “Big 4” accounting firm approved by the Investors;
(ii) unaudited quarterly consolidated financial statements within thirty (30) days of the end of each fiscal quarter, including an unaudited balance sheet as of the end of such quarter, and an unaudited statement of operations and an unaudited statement of cash flows of the Company, for such quarter, together with a comparison to the Company’s operating plan and budget by the Chief Financial Officer of the Company explaining any significant differences in the statements from the Company’s operating plan and budget for the corresponding period and stating that such statements fairly present the consolidated financial position and consolidated financial result of the Company for the fiscal quarter covered;
(iii) unaudited monthly consolidated financial statements within thirty (30) days of the end of each month, including an unaudited balance sheet as of the end of each such month, and an unaudited statement of operations and an unaudited statement of cash flows for such month;
(iv) an annual consolidated budget for the following fiscal year within forty-five (45) days prior to the end of each fiscal year;
(v) copies of the entity’s annual reports to shareholders and any quarterly, interim, annual, extraordinary or periods other reports (including reports on Forms 20-F, 6-K, 10-K, 10-Q and/or 8-K, as applicable) promptly after such documents are filed with the appropriate securities exchange or regulatory authority;
(vi) copies of all documents or other information sent to all other shareholders as such; and
(orvii) upon the written request by the Investor, such other information as the Investor shall reasonably request. All financial statements to be provided to the Investors pursuant to this Section 2.1 and pursuant to any other Transaction Agreements, including any in the Agreed M&A, shall be prepared in the English language in conformance with US GAAP, as amended and interpreted from time to time, and in the case of the balance sheet, as financial statements of the end of) the previous fiscal year;
(d) within 60 days after the end of each of the first three fiscal quarters of each fiscal yearCompany, its consolidated balance sheet and related statements of incomeif requested by an Investor, stockholders' equity and cash flows as of the end of and for such fiscal quarter and the then elapsed portion of the fiscal year, setting forth in each case in comparative form the figures for the corresponding period or periods of (or, in the case of the balance sheet, as of the end of) the budget and previous fiscal year, all certified by one of its Financial Officers as presenting fairly in all material respects the results of operations of the Company on a consolidated basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments and the absence of footnotes;
(e) within 30 days after the end of each month which is neither a fiscal year end nor a fiscal quarter end, its consolidated balance sheet and related statements of income, stockholders' equity and cash flows as of the end of and for such month and the then elapsed portion of the fiscal year, setting forth in each case in comparative form the figures for the corresponding period or periods of (or, in the case of the balance sheet, as of the end of) the previous fiscal year, all certified by one of its Financial Officers as presenting fairly in all material respects the results of operations of the Company on a consolidated basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments and the absence of footnotes;
(f) by no later than December 15 of each fiscal year, a budget and business plan for the immediately succeeding fiscal year in the form approved by the Company's board of directors, in form, scope and detail satisfactory to the Purchasers and on a quarterly basis for each fiscal quarter of such succeeding fiscal year;
(g) promptly after the same become publicly available, (to the extent not available through electronic means) copies of all periodic and other reports, proxy statements and other materials filed by the Company or any Subsidiary with the SEC, or any Governmental Agency succeeding to any or shall consolidate all of the functions consolidated financial results of the SEC, or with any national securities exchange, or distributed by the Company to its stockholders generally, as the case may be;
(h) promptly after the same are delivered to the members of the Board of Directors, copies of all business plans and other financial plans relating to the Company and/or its Subsidiaries; and
(i) promptly following any request therefor, such other information regarding the operations, business affairs and financial condition of the Company or any Subsidiary, or compliance with the terms of the this Agreement or any Related Document, as the Purchasers may reasonably requestGroup Companies.
Appears in 1 contract
Sources: Investors’ Rights Agreement (HiSoft Technology International LTD)
Information Rights. The Company shall furnish to each Purchaser who holds at least 5% of the Common Stock on a fully diluted as if converted basis (and regardless to each of GE and Midwest if such Purchaser holds at least a majority of the Series B Shares such Purchaser purchased hereunder):
(a) within 105 days after the end of each fiscal year For so long as any APLD Investor is a party to this Agreement (or, if required subject to be filed with the SEC sooner, then concurrently with such filingSection 5.1), its Form 10-K containing its audited consolidated balance sheet and related statements without limitation or prejudice of income, stockholders' equity and cash flows as any of the end of and for such year, setting forth in each case in comparative form the figures for the previous fiscal year, all reported on by PriceWaterhouseCoopers or other independent public accountants of recognized national standing (without any qualification or exception as rights provided to the scope APLD Investors hereunder, the Company shall, with respect to each such APLD Investor:
i. provide each APLD Investor or its designated representative with:
(A) upon reasonable notice and at mutually convenient times, the right to visit and inspect any of such audit) to the effect that such consolidated financial statements present fairly in all material respects the financial condition offices and results of operations properties of the Company and its consolidated Subsidiaries on a consolidated basis in accordance with GAAP consistently appliedand inspect and copy the books and records of the Company and its Subsidiaries;
(bB) as soon as available and in any event within 105 days after the end of each fiscal year (or, if required to be filed with the SEC sooner, then concurrently with such filing), its consolidated balance sheets and related statements of income, stockholders' equity and cash flows as of the end of and for such year, setting forth in each case in comparative form the figures for the previous fiscal year, all certified by one of its Financial Officers as presenting fairly in all material respects the results of operations of the Company on a consolidated basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments and the absence of footnotes;
(c) within 60 45 days after the end of each of the first three fiscal quarters of each fiscal year (orof the Company, if required to be filed with the SEC sooner, then concurrently with such filing), its Form 10-Q containing its consolidated balance sheet sheets of the Company and related statements of income, stockholders' equity and cash flows its Subsidiaries as of the end of such period, and for such fiscal quarter consolidated statements of income and the then elapsed portion cash flows of the fiscal year, setting forth in each case in comparative form the figures Company and its Subsidiaries for the corresponding period or periods of (or, then ended prepared in conformity with generally accepted accounting principles in the case United States applied on a consistent basis, except as otherwise noted therein, and subject to the absence of the balance sheet, as of the footnotes and to year-end of) the previous fiscal yearadjustments;
(dC) as soon as available and in any event within 60 120 days after the end of each fiscal year of the first three fiscal quarters of each fiscal yearCompany, its a consolidated balance sheet of the Company and related statements of income, stockholders' equity and cash flows its Subsidiaries as of the end of and for such fiscal quarter and the then elapsed portion of the fiscal year, setting forth in each case in comparative form the figures for the corresponding period or periods and consolidated statements of (or, in the case of the balance sheet, as of the end of) the budget income and previous fiscal year, all certified by one of its Financial Officers as presenting fairly in all material respects the results of operations cash flows of the Company and its Subsidiaries for the year then ended prepared in conformity with generally accepted accounting principles in the United States applied on a consolidated basis in accordance consistent basis, except as otherwise noted therein, together with GAAP consistently applied, subject to normal year-end audit adjustments and the absence an auditor’s report thereon of footnotesa firm of established national reputation;
(eD) within 30 days after to the end extent the Company is required by applicable Law or pursuant to the terms of each month which is neither a fiscal year end nor a fiscal quarter end, its consolidated balance sheet and related statements of income, stockholders' equity and cash flows as of the end of and for such month and the then elapsed portion of the fiscal year, setting forth in each case in comparative form the figures for the corresponding period or periods of (or, in the case of the balance sheet, as of the end of) the previous fiscal year, all certified by one of its Financial Officers as presenting fairly in all material respects the results of operations any outstanding indebtedness of the Company on a consolidated basis in accordance with GAAP consistently appliedto prepare such reports, subject to normal year-end audit adjustments and the absence of footnotes;
(f) by no later than December 15 of each fiscal yearany annual reports, a budget and business plan for the immediately succeeding fiscal year in the form approved by the Company's board of directors, in form, scope and detail satisfactory to the Purchasers and on a quarterly basis for each fiscal quarter of such succeeding fiscal year;
(g) promptly after the same become publicly available, (to the extent not available through electronic means) copies of all periodic reports and other reportsperiodic reports pursuant to Section 13 or 15(d) of the Exchange Act, proxy statements and other materials filed actually prepared by the Company or any Subsidiary with the SEC, or any Governmental Agency succeeding to any or all of the functions of the SEC, or with any national securities exchange, or distributed as soon as available; and
(E) upon written request by the Company to its stockholders generally, as the case may be;
(h) promptly after the same are delivered to the members of the Board of DirectorsAPLD Investor, copies of all business plans materials provided to the Board, subject to appropriate protections with respect to confidentiality and other financial plans preservation of attorney-client privilege; provided, that, in each case, if the Company makes the information described in clauses (B), (C) and (D) of this Section 3.3(a)(i) available through public filings on the E▇▇▇▇ System or any successor or replacement system of the U.S. Securities and Exchange Commission, the requirement to deliver such information shall be deemed satisfied;
ii. make appropriate officers and/or Directors of the Company available, and cause the officers and directors of its Subsidiaries to be made available, periodically and at such times as reasonably requested by each APLD Investor, upon reasonable notice and at mutually convenient times, for consultation with such APLD Investor or its designated representative with respect to matters relating to the business and affairs of the Company and/or and its Subsidiaries; and
iii. to the extent that the APLD Investor requests to receive such information and rights, and to the extent consistent with applicable Law or listing standards (iand with respect to events which require public disclosure, only following the Company’s public disclosure thereof through applicable securities law filings or otherwise), inform each APLD Investor or its designated representative in advance with respect to any significant corporate actions, and to provide (or cause to be provided) promptly following any request thereforeach APLD Investor or its designated representative with the right to consult with the Company and its Subsidiaries with respect to such actions should the APLD Investor elect to do so; provided, such other information regarding however, that this right to consult must be exercised within five days after the operations, business affairs and financial condition Company informs the APLD Investor of the proposed corporate action; provided, further, that the Company shall be under no obligation to provide the APLD Investor with any material non-public information with respect to such corporate action.
(b) The Company agrees to consider, in good faith, the recommendations of each APLD Investor or any Subsidiary, or compliance its designated representative in connection with the terms of matters on which it is consulted as described above in this Section 3.3, recognizing that the this Agreement or any Related Document, as ultimate discretion with respect to all such matters shall be retained by the Purchasers may reasonably requestCompany.
Appears in 1 contract
Information Rights. The Company shall furnish 13.1 For so long as this Joint Venture Agreement is in effect, the Shareholders will exercise their rights as Shareholders so as to each Purchaser who holds at least 5% of the Common Stock on a fully diluted as if converted basis (and regardless ensure that MAT will deliver to each of GE and Midwest if such Purchaser holds at least a majority the Shareholders: Table of the Series B Shares such Purchaser purchased hereunder):Contents
(a) within 105 days after on or before 1 December in each year a detailed draft operating budget for the JV Group (including estimated major items of revenue and capital expenditure) for the following financial year, broken down on a monthly basis, and an accompanying cash-flow forecast together with a balance sheet showing the projected position of the JV Group Companies as at the end of each fiscal year (or, if required to be filed with the SEC sooner, then concurrently with such filing), its Form 10-K containing its audited consolidated balance sheet and related statements of income, stockholders' equity and cash flows as of the end of and for such following calendar year, setting forth in each case in comparative form the figures for the previous fiscal year, all reported on by PriceWaterhouseCoopers or other independent public accountants of recognized national standing (without any qualification or exception as to the scope of such audit) to the effect that such consolidated financial statements present fairly in all material respects the financial condition and results of operations of the Company and its consolidated Subsidiaries on a consolidated basis in accordance with GAAP consistently applied;
(b) within 105 days three (3) weeks after the end of each fiscal year calendar month, unaudited management accounts, such accounts to include a detailed profit and loss account, balance sheet and cash-flow statement, an analysis of sales and other revenue, with revenue and capital budgets for the corresponding month, and (or, if so required to be filed with by the SEC sooner, then concurrently with such filing), its consolidated balance sheets and related statements of income, stockholders' equity and cash flows as Board) a statement of the end source and application of and funds for such year, setting forth in each case in comparative form the figures for the previous fiscal year, all certified by one of its Financial Officers as presenting fairly in all material respects the results of operations of the Company on a consolidated basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments and the absence of footnotesmonth;
(c) within 60 as soon as available, but in any event not later than sixty (60) days after the end of each of the first three (3) fiscal quarters of each fiscal year (oror when furnished to the Board, if required to be filed with earlier) the SEC sooner, then concurrently with such filing), its Form 10-Q containing its unaudited consolidated balance sheet of the JV Group Companies as at the end of each such period and the related unaudited consolidated statements of income, stockholders' equity operations and cash flows of the JV Group Companies for such quarterly period and for the elapsed period in such fiscal year, all in reasonable detail and stating in comparative form the figures as of at the end of and for such fiscal quarter and the then elapsed portion comparable periods of the preceding fiscal year, setting forth . All such financial statements shall be complete and correct in each case all material respects and prepared in comparative form accordance with Hong Kong Accounting Standards applied consistently throughout the figures for the corresponding period or periods of (or, in the case of the balance sheet, reflected therein except as of the end of) the previous fiscal yearstated therein;
(d) as soon as available, but in any event within 60 ninety (90) days after the end of each fiscal year of MAT (or when furnished to the Board, if earlier) a copy of the first three fiscal quarters consolidated balance sheet of the JV Group Companies as at the end of each fiscal year, its year and the related consolidated balance sheet and related statements of incomeoperations, stockholders' shareholders equity and cash flows of the JV Group Companies for each financial year, all in reasonable detail and stating in comparative form the figures as of at the end of and for the previous fiscal year accompanied by an opinion of an Approved Accounting Firm or such fiscal quarter other accounting firm of recognised international standing selected by MAT, which opinion shall state that such audit was conducted in accordance with generally accepted auditing standards and which opinion shall not be subject to any qualifications resulting from a limit on the then elapsed portion scope of the fiscal year, setting forth in each case in comparative form the figures for the corresponding period or periods of (or, in the case examination of the balance sheet, as of financial statement or the end of) the budget underlying data or a departure from generally accepted accounting principles. All such financial statements shall be complete and previous fiscal year, all certified by one of its Financial Officers as presenting fairly correct in all material respects the results of operations of the Company on a consolidated basis and prepared in reasonable detail and in accordance with GAAP Hong Kong Accounting Standards applied consistently applied, subject to normal year-end audit adjustments and throughout the absence of footnotes;period reflected therein except as stated therein; and
(e) within 30 days after the end of each month which is neither a fiscal year end nor a fiscal quarter end, its consolidated balance sheet and related statements of income, stockholders' equity and cash flows as from time to time such additional information regarding results of the end of and for such month and the then elapsed portion business, affairs, operations, assets, financial condition or prospects of the fiscal yearJV Group Companies, setting forth in each case in comparative form the figures for the corresponding period or periods including annual budgets, cash flow analyses, projections and minutes of (or, in the case any meetings of the balance sheetBoard, as any Shareholder may reasonably request in writing and all reasonable costs properly incurred by MAT in providing such additional information shall be borne by such Shareholder.
13.2 Upon reasonable notice, will permit any Shareholder to inspect and examine, during normal business hours, any of the end ofassets or properties, books or accounts, records and reports of the JV Group Companies and to discuss the affairs, finances and accounts of the JV Group Companies with the directors, executive officers, agents, accountants and attorneys of the JV Group Companies up to two (2) times in every calendar year. All reasonable costs properly incurred by the previous fiscal year, all certified JV Group Companies in Table of Contents the exercise by one any Shareholder of its Financial Officers as presenting fairly in all material respects the results of operations of the Company on a consolidated basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments and the absence of footnotes;
(f) rights hereunder shall be borne by no later than December 15 of each fiscal year, a budget and business plan for the immediately succeeding fiscal year in the form approved by the Company's board of directors, in form, scope and detail satisfactory to the Purchasers and on a quarterly basis for each fiscal quarter of such succeeding fiscal year;
(g) promptly after the same become publicly available, (to the extent not available through electronic means) copies of all periodic and other reports, proxy statements and other materials filed by the Company or any Subsidiary with the SEC, or any Governmental Agency succeeding to any or all of the functions of the SEC, or with any national securities exchange, or distributed by the Company to its stockholders generally, as the case may be;
(h) promptly after the same are delivered to the members of the Board of Directors, copies of all business plans and other financial plans relating to the Company and/or its Subsidiaries; and
(i) promptly following any request therefor, such other information regarding the operations, business affairs and financial condition of the Company or any Subsidiary, or compliance with the terms of the this Agreement or any Related Document, as the Purchasers may reasonably requestShareholder.
Appears in 1 contract
Information Rights. The Company shall furnish to each Purchaser who hereby covenants and agrees that, commencing on the date of this Agreement, and for so long as any Investor holds at least 5% of 10,000,000 Preferred Shares, the Common Stock on a fully diluted as if converted basis (Company will deliver to such investor the following with respect to Itself and regardless to each of GE and Midwest if such Purchaser holds at least a majority of the Series B Shares such Purchaser purchased hereunder):their respective Subsidiaries:
(ai) audited annual consolidated financial statements within 105 one hundred and twenty (120) days after the end of each fiscal year (oryear, if required to be filed with the SEC sooner, then concurrently with such filing), its Form 10-K containing its including an audited consolidated balance sheet and related statements of income, stockholders' equity and cash flows as of the end of such year and for such year, setting forth in each case in comparative form the figures for the previous fiscal year, all reported on by PriceWaterhouseCoopers or other independent public accountants of recognized national standing (without any qualification or exception as to the scope of such audit) to the effect that such consolidated financial statements present fairly in all material respects the financial condition and results of operations of the Company and its consolidated Subsidiaries on a consolidated basis in accordance with GAAP consistently applied;
(b) within 105 days after the end statement of each fiscal year (or, if required to be filed with the SEC sooner, then concurrently with such filing), its operation and a consolidated balance sheets and related statements statement of income, stockholders' equity and cash flows as of the end of and for far such year, setting forth in each case in comparative form the figures for the previous fiscal year, all certified by one of its Financial Officers as presenting fairly in all material respects the results of operations of the Company on a consolidated basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments and the absence of footnotes;
(c) within 60 days after the end of each of the first three fiscal quarters of each fiscal year (or, if required to be filed with the SEC sooner, then concurrently with such filing), its Form 10-Q containing its consolidated balance sheet and related statements of income, stockholders' equity and cash flows as of the end of and for such fiscal quarter and the then elapsed portion of the fiscal year, setting forth in each case in comparative form the figures from the Company’s previous fiscal year, and audited by a “Big 4” accounting firm approved by the Investors;
(ii) unaudited quarterly consolidated financial statements within thirty (30) days of the end of each fiscal quarter, including an unaudited balance sheet as of the end of such quarter, and an unaudited statement of operations and an unaudited statement of cash flows of the Company, for such quarter, together with a comparison to the Company’s operating plan and budget by the Chief Financial Officer of the Company explaining any significant differences in the statements from the Company’s operating plan and budget for the corresponding period and stating that such statements fairly present the consolidated financial position and consolidated financial result of the Company for the fiscal quarter covered;
(iii) unaudited monthly consolidated financial statements within thirty (30) days of the end of each month, including an unaudited balance sheet as of the end of each such month and an unaudited statement of operations and an unaudited statement of cash flows for such month;
(iv) an annual consolidated budget for the following fiscal year within forty-five (45) days prior to the end of each fiscal year;
(v) copies of the entity’s annual reports to shareholders and any quarterly, interim, annual, extraordinary or periods other reports (including reports on Forms 20-F, 6-K, 10-K, 10-Q and/or 8-K, as applicable) promptly after such documents are filed with the appropriate securities exchange or regulatory authority;
(vi) copies of all documents or other information sent to all other shareholders as such; and
(orvii) upon the written request by the Investor, such other information as the Investor shall reasonably request All financial statements to be provided to the Investors pursuant to this Section 2.1 and pursuant to any other Transaction Agreements, including any in the Agreed M&A, shall be prepared in the English language in conformance with US GAAP, as amended and interpreted from time to time, and in the case of the balance sheet, as financial statements of the end of) the previous fiscal year;
(d) within 60 days after the end of each of the first three fiscal quarters of each fiscal yearCompany, its consolidated balance sheet and related statements of incomeif requested by an Investor, stockholders' equity and cash flows as of the end of and for such fiscal quarter and the then elapsed portion of the fiscal year, setting forth in each case in comparative form the figures for the corresponding period or periods of (or, in the case of the balance sheet, as of the end of) the budget and previous fiscal year, all certified by one of its Financial Officers as presenting fairly in all material respects the results of operations of the Company on a consolidated basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments and the absence of footnotes;
(e) within 30 days after the end of each month which is neither a fiscal year end nor a fiscal quarter end, its consolidated balance sheet and related statements of income, stockholders' equity and cash flows as of the end of and for such month and the then elapsed portion of the fiscal year, setting forth in each case in comparative form the figures for the corresponding period or periods of (or, in the case of the balance sheet, as of the end of) the previous fiscal year, all certified by one of its Financial Officers as presenting fairly in all material respects the results of operations of the Company on a consolidated basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments and the absence of footnotes;
(f) by no later than December 15 of each fiscal year, a budget and business plan for the immediately succeeding fiscal year in the form approved by the Company's board of directors, in form, scope and detail satisfactory to the Purchasers and on a quarterly basis for each fiscal quarter of such succeeding fiscal year;
(g) promptly after the same become publicly available, (to the extent not available through electronic means) copies of all periodic and other reports, proxy statements and other materials filed by the Company or any Subsidiary with the SEC, or any Governmental Agency succeeding to any or shall consolidate all of the functions consolidated financial results of the SEC, or with any national securities exchange, or distributed by the Company to its stockholders generally, as the case may be;
(h) promptly after the same are delivered to the members of the Board of Directors, copies of all business plans and other financial plans relating to the Company and/or its Subsidiaries; and
(i) promptly following any request therefor, such other information regarding the operations, business affairs and financial condition of the Company or any Subsidiary, or compliance with the terms of the this Agreement or any Related Document, as the Purchasers may reasonably requestGroup Companies.
Appears in 1 contract
Sources: Investors’ Rights Agreement (HiSoft Technology International LTD)
Information Rights. (a) The Company Corporation shall furnish deliver the following reports to each Purchaser who holds Investor holding at least 5% ten percent (10%) of the Common Stock on outstanding Investor Shares (each a fully diluted as if converted basis (and regardless to each of GE and Midwest if such Purchaser holds at least a majority of the Series B Shares such Purchaser purchased hereunder“Majority Investor”):
(ai) as soon as available and in any event within 105 thirty (30) days after the end of each month of each fiscal year (orof the Corporation, if required to be filed with consolidated and consolidating balance sheets of the SEC sooner, then concurrently with such filing), Corporation and its Form 10-K containing its audited consolidated balance sheet and related statements of income, stockholders' equity and cash flows Subsidiaries as of the end of such period, and for such year, setting forth in each case in comparative form consolidated and consolidating statements of income and cash flows of the figures Corporation and its Subsidiaries for the previous fiscal yearperiod then ended, all reported on by PriceWaterhouseCoopers or other independent public accountants including a report containing a management’s discussion and analysis of recognized national standing (without any qualification or exception such financial results prepared in conformity with GAAP, except as otherwise noted therein, and subject to the scope absence of such audit) footnotes and to the effect that such consolidated financial statements present fairly in all material respects the financial condition and results of operations of the Company and its consolidated Subsidiaries on a consolidated basis in accordance with GAAP consistently appliedyear-end adjustments;
(bii) as soon as available and in any event within 105 days after the end of each fiscal year forty-five (or, if required to be filed with the SEC sooner, then concurrently with such filing), its consolidated balance sheets and related statements of income, stockholders' equity and cash flows as of the end of and for such year, setting forth in each case in comparative form the figures for the previous fiscal year, all certified by one of its Financial Officers as presenting fairly in all material respects the results of operations of the Company on a consolidated basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments and the absence of footnotes;
(c45) within 60 days after the end of each of the first three fiscal quarters of each fiscal year (orof the Corporation, if required to be filed with consolidated and consolidating balance sheets of the SEC sooner, then concurrently with such filing), Corporation and its Form 10-Q containing its consolidated balance sheet and related statements of income, stockholders' equity and cash flows Subsidiaries as of the end of such period, and for such fiscal quarter consolidated and the then elapsed portion consolidating statements of income and cash flows of the fiscal year, setting forth in each case in comparative form the figures Corporation and its Subsidiaries for the corresponding period or periods then ended prepared in conformity with GAAP, except as otherwise noted therein, and subject to the absence of (or, in the case of the balance sheet, as of the footnotes and to year-end of) the previous fiscal yearadjustments;
(diii) as soon as available and in any event within 60 ninety (90) days after the end of each fiscal year of the first three fiscal quarters of each fiscal yearCorporation, its a consolidated and consolidating balance sheet of the Corporation and related statements of income, stockholders' equity and cash flows its Subsidiaries as of the end of such year, and for such fiscal quarter consolidated and the then elapsed portion consolidating statements of income and cash flows of the fiscal yearCorporation and its Subsidiaries for the year then ended prepared in conformity with GAAP, setting forth except as otherwise noted therein, together with an auditor's report thereon of a public accounting firm of established national reputation;
(iv) to the extent the Corporation (or any Subsidiary thereof) is required to prepare such financial statements (or obtain such audit letters), any financial statements actually prepared by the Corporation (or any such Subsidiary), or audit letters actually obtained by the Corporation (or any such Subsidiary) from any auditor of such financial statements, in each case in comparative form as soon as available to the figures for the corresponding period Corporation (or periods of (or, in the case of the balance sheet, as of the end of) the budget and previous fiscal year, all certified by one of its Financial Officers as presenting fairly in all material respects the results of operations of the Company on a consolidated basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments and the absence of footnotessuch Subsidiary);
(ev) within 30 days after the end of each month which is neither a fiscal year end nor a fiscal quarter endany annual reports, its consolidated balance sheet quarterly reports and related statements of income, stockholders' equity and cash flows as other periodic reports pursuant to Section 13 or 15(d) of the end of Exchange Act prepared by the Corporation (or any Subsidiary thereof) as soon as available; and
(vi) as soon as available and for such month and in any event within thirty (30) days prior to the then elapsed portion beginning of the fiscal yearcalendar year to which the annual budget shall apply, setting forth in each case in comparative form the figures for the corresponding period or periods of (or, in the case of the balance sheet, as of the end of) the previous fiscal year, all certified by one of its Financial Officers as presenting fairly in all material respects the results of operations of the Company on a consolidated basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments and the absence of footnotes;
(f) by no later than December 15 of each fiscal year, a annual budget and business plan for of the immediately succeeding fiscal year in the form approved by the Company's board of directors, in form, scope Corporation and detail satisfactory to the Purchasers and on a quarterly basis for each fiscal quarter of such succeeding fiscal year;its Subsidiaries.
(gb) promptly after the same become publicly availableThe Corporation and its Subsidiaries shall provide to each Majority Investor, (to the extent not available through electronic means) true and correct copies of all periodic documents, reports, financial data and other reports, proxy statements information as a Majority Investor may reasonably request. The Corporation shall permit any authorized representatives designated by a Majority Investor to visit and other materials filed by the Company or inspect any Subsidiary with the SEC, or any Governmental Agency succeeding to any or all of the functions properties of the SECCorporation and its Subsidiaries, or including its and their books of account, and to discuss its and their affairs, finances and accounts with any national securities exchangeits and their officers, or distributed by the Company to its stockholders generally, all at such times as the case a Majority Investor may be;reasonably request.
(hc) promptly after The Corporation will give each Majority Investor reasonable prior notice (it being agreed that substantially the same are delivered prior notice given to the members of the Board shall be deemed reasonable prior notice) of Directors, the time and place of any proposed meeting of the Board. The Corporation will deliver to each Majority Investor copies of all business plans material documentation distributed from time to time to the members of the Board or any applicable committee thereof, at such time as such documents are so distributed to them, including copies of any written consent. The Corporation reserves the right to withhold any such documentation if (i) access to such documentation could be reasonably expected to adversely affect the attorney-client privilege between the Corporation and other financial plans its counsel or (ii) such disclosure is prohibited by an agreement with a third party; provided, however, that in the case of the preceding clause (ii), the Corporation will use commercially reasonable efforts to provide such documentation, which requirement shall be satisfied if the Majority Investor is offered the opportunity to obtain such documentation by executing or otherwise becoming a party to the confidentiality restrictions on substantially the same terms (including any standstill provisions) as are applicable to the Corporation. Notwithstanding anything to the contrary contained in this Agreement, a Majority Investor may not use or disclose any information received by such Majority Investor, unless and except to the extent that such use or disclosure could have been made by a director of the Corporation in compliance with all laws and duties applicable to a director as such under such circumstances.
(d) The Company covenants that it will take such further action as any Majority Investor may reasonably request, all to the extent required from time to time to enable such Person to sell the Investor Shares without registration under the Securities Act within the limitation of the exemptions provided by Rule 144.
(e) Each Majority Investor shall have the right to consult with and advise the management of the Corporation and its Subsidiaries, upon reasonable notice at any time or from time to time, on all matters relating to the Company and/or operation of the Corporation and its Subsidiaries; and
(i) promptly following any request therefor, such other information regarding the operations, business affairs and financial condition of the Company or any Subsidiary, or compliance with the terms of the this Agreement or any Related Document, as the Purchasers may reasonably request.
Appears in 1 contract
Information Rights. The Company shall furnish to each Purchaser who holds at least 5% of the Common Stock on a fully diluted as if converted basis (and regardless to each of GE and Midwest if such Purchaser holds at least a majority of the Series B Shares such Purchaser purchased hereunder):
(a) within 105 MYT Holdco shall deliver to the Trustees:
(i) by the earlier of (A) ninety (90) days after the end of each fiscal year of NM Group (or, if required to or such longer period as may be filed with provided by the SEC sooner, if NM Group were then concurrently subject to SEC reporting requirements as a non-accelerated filer) and (B) the date NM Group discloses to holders of its secured notes earnings information with such filing), its Form 10-K containing its audited consolidated balance sheet and related statements of income, stockholders' equity and cash flows as of respect to the end of and for such year, setting forth in each case in comparative form the figures for the previous corresponding fiscal year, all reported on by PriceWaterhouseCoopers or other independent public accountants the audited annual financial statements of recognized national standing the MYT Operating Entities for the most recently ended fiscal year of the MYT Operating Entities (without any qualification or exception as which currently ends prior to the scope corresponding fiscal year of such audit) to the effect that such consolidated financial statements present fairly in all material respects the financial condition and results of operations of the Company and its consolidated Subsidiaries on a consolidated basis NM Group), prepared in accordance with German GAAP, together with a qualitative or quantitative explanation of the material applicable differences between German GAAP consistently appliedand GAAP;
(bii) within 105 days after by the end earlier of each fiscal year (or, if required to be filed with the SEC sooner, then concurrently with such filing), its consolidated balance sheets and related statements of income, stockholders' equity and cash flows as of the end of and for such year, setting forth in each case in comparative form the figures for the previous fiscal year, all certified by one of its Financial Officers as presenting fairly in all material respects the results of operations of the Company on a consolidated basis in accordance with GAAP consistently applied, subject to normal yearA) forty-end audit adjustments and the absence of footnotes;
five (c45) within 60 days after the end of each of the first three fiscal quarters of each fiscal year of NM Group (oror such longer period as may be provided by the SEC if NM Group were then subject to SEC reporting requirements as a non-accelerated filer) and (B) the date NM Group discloses to holders of its secured notes earnings information with respect to the corresponding fiscal quarter, if required unaudited quarterly financial statements of the MYT Operating Entities for the fiscal quarter most recently ended of the MYT Operating Entities (which currently ends prior to be filed the corresponding fiscal quarter of NM Group) and, commencing with the SEC soonerMYT Operating Entities’ “fiscal quarter ending in March 2020, then concurrently with such filing), its Form 10-Q containing its consolidated balance sheet and related statements of income, stockholders' equity and cash flows as the corresponding fiscal quarter of the end of and for such fiscal quarter and the then elapsed portion of the prior fiscal year, setting prepared in accordance with German GAAP, together with a qualitative or quantitative explanation of the material applicable differences between German GAAP and GAAP;
(iii) with each set of consolidated financial statements referred to in clauses (ii) and (iii) of this Section 3.03(12)(a) above, a narrative discussion of the key financial information of the MYT Operating Entities consistent with those customarily provided with earnings press releases; and
(iv) within the time period specified for filing current reports on Form 8-K by the SEC as if such items were reportable on a Form 8-K, notice of any (a) issuances of equity interests (including any debt security that is convertible into, or exchangeable for, capital stock of MYT Holdco) by MYT Holdco that are junior to the Series A Preferred Stock, (b) issuances of Indebtedness other than in the ordinary course of business pursuant to the exceptions set forth in each case Section 3.03(2) above and (c) Permitted Investments.
(b) Notwithstanding the foregoing, the obligations in comparative form the figures for the corresponding period or periods of (or, in the case this Section 3.03(12) may be satisfied with respect to financial information of the balance sheetMYT Operating Entities by furnishing the applicable financial statements of MYT Holdco or any Subsidiary thereof that is the direct or indirect parent of NMG Germany GmbH; provided that such information is accompanied by consolidating information that explains in reasonable detail the material differences between the information relating to such parent, as on the one hand, and the information relating to the MYT Operating Entities on a stand-alone basis, on the other hand; and provided further that such direct or indirect parent of NMG Germany GmbH shall not conduct, transact or otherwise engage in any business or operations other than relating to its direct or indirect ownership of all of the end Equity Interests in, and management of, NMG Germany GmbH.
(c) MYT Holdco shall promptly furnish any information reasonably requested by holders or beneficial holders of at least 5% of the previous fiscal year;outstanding Notes to confirm that MYT Holdco and its subsidiaries are in compliance with the covenants set forth under this Section 3.03.
(d) within 60 days after Documents required to be delivered pursuant to this Section 4.06(12) may be delivered electronically and if so delivered, shall be deemed to have been delivered on the end date on which (i) (x) such documents become available on the SEC’s Electronic Data Gathering Analysis and Retrieval (“▇▇▇▇▇”) website or (y) NMG Germany GmbH (or any direct or indirect parent of each of NMG Germany GmbH) posts such documents, or provides a link thereto on its website; or (ii) such documents are posted on NMG Germany GmbH’s behalf on IntraLinks/IntraAgency or another similar non-public, password protected datasite. Notwithstanding the first three fiscal quarters of each fiscal yearforegoing, its consolidated balance sheet and related statements of incomeno Trustee shall have any obligation to monitor or confirm, stockholders' equity and cash flows as of the end of and for such fiscal quarter and the then elapsed portion of the fiscal year, setting forth in each case in comparative form the figures for the corresponding period or periods of (or, in the case of the balance sheet, as of the end of) the budget and previous fiscal year, all certified by one of its Financial Officers as presenting fairly in all material respects the results of operations of the Company on a consolidated continuing basis in accordance with GAAP consistently appliedor otherwise, subject whether MYT Holdco or NMG German GmbH (or any direct or indirect parent of NMG German GmbH) posts such reports, information and documents on any website or the SEC’s ▇▇▇▇▇ service, or to normal year-end audit adjustments and collect any such information from MYT Holdco or NMG German GmbH (or any direct or indirect parent of NMG German GmbH) website or the absence of footnotes;SEC’s ▇▇▇▇▇ service.
(e) within 30 days after Any Person seeking access to such datasite will be required to represent to and agree with the end of each month which is neither a fiscal year end nor a fiscal quarter endMYT Operating Entities and any such parent (and by accepting such financial information, its consolidated balance sheet such Person will be deemed to have so represented and related statements of income, stockholders' equity agreed with the MYT Operating Entities and cash flows as such parent) to the good faith satisfaction of the end MYT Operating Entities or such parent that:
(i) it is a holder of and for such month and a Note or a bona fide prospective investor in the then elapsed portion Notes;
(ii) if it is a prospective purchaser of the fiscal yearNotes, setting forth it is (a) a “qualified institutional buyer” (as defined in each case Rule 144A of the Securities Act), (b) a “non U.S. Person” (as defined in comparative form Regulation S under the figures for Securities Act) or (c) an institutional “accredited investor” as defined in Rule 501(a)(1), (2), (3) or (7) under the corresponding period Securities Act;
(iii) it will not use the information in violation of applicable securities laws or periods regulations;
(iv) it will not communicate the information to any Person and will keep the information confidential;
(v) it will use such information only in connection with evaluating, monitoring or disposing of (or, an investment in the case Notes; and
(vi) it will not use such information in any manner intended to compete with the business of the balance sheet, as of the end of) the previous fiscal year, all certified by one of its Financial Officers as presenting fairly in all material respects the results of operations of the Company on a consolidated basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments and the absence of footnotes;MYT Operating Entities.
(f) by no later than December 15 Delivery of each fiscal yearreports, a budget information and business plan documents to any Trustee is for the immediately succeeding fiscal year in the form approved by the Company's board of directors, in form, scope informational purposes only and detail satisfactory to the Purchasers and on a quarterly basis for each fiscal quarter its receipt of such succeeding fiscal year;
(g) promptly after the same become publicly available, (to the extent not available through electronic means) copies of all periodic and other reports, proxy statements information and other materials filed by the Company documents shall not constitute constructive notice of any information contained therein or determinable from information contained therein, including MYT Holdco’s, NMG German GmbH’s (or any Subsidiary with the SEC, direct or indirect parent of NMG German GmbH’s) or any Governmental Agency succeeding to any or all of the functions of the SEC, or other Person’s compliance with any national securities exchange, or distributed by the Company to of its stockholders generally, as the case may be;
(h) promptly after the same are delivered to the members of the Board of Directors, copies of all business plans and other financial plans relating to the Company and/or its Subsidiaries; and
(i) promptly following any request therefor, such other information regarding the operations, business affairs and financial condition of the Company or any Subsidiary, or compliance with the terms of the covenants under this Agreement or the Notes. No Trustee shall have any Related Documentliability or responsibility for the content, as the Purchasers may reasonably requestfiling or timeliness of any report, information or document delivered or filed under or in connection with this Agreement.
Appears in 1 contract
Information Rights. The Company shall furnish to each Purchaser who holds at least 5% of the Common Stock on a fully diluted as if converted basis (and regardless to each of GE and Midwest if such Purchaser holds at least a majority of the Series B Shares such Purchaser purchased hereunder):
(a) within 105 days In connection with the rights granted to and the obligations incurred by Cosi set forth in this Agreement, HoldCo hereby agrees to comply and to cause the Subsidiary to comply with the covenants set forth in this Section 9 until such time that any Closing is completed in accordance with Section 4.
(b) HoldCo and the Subsidiary shall at all times (i) maintain books and records of account in which full and complete entries shall be made of all business transactions pursuant to a system of accounting established and administered in accordance with generally accepted accounting principles consistently applied, and to set aside on its respective books all such proper accruals and reserves as shall be required under generally accepted accounting principles consistently applied, and (ii) properly maintain records of its limited liability company affairs, including, without limitation, a minute book or similar record containing a complete summary of all meetings of members and/or managers since its time of formation.
(c) As soon as practicable after the end of each fiscal year year, and in any event within ninety (or90) days thereafter, if required HoldCo shall furnish to be filed with the SEC sooner, then concurrently with such filing), its Form 10-K containing its audited Cosi a consolidated balance sheet of each of HoldCo and related statements of incomethe Subsidiary, stockholders' equity and cash flows as of the end of such fiscal year (and the prior fiscal year), and a consolidated statement of income, a consolidated statement of cash flows and a statement of stockholders’ equity of each of HoldCo and the Subsidiary, for such year (and the prior fiscal year), all prepared in accordance with generally accepted accounting principles consistently applied and setting forth in each case case, in comparative form form, the figures for the previous fiscal year, all reported on in reasonable detail. Such financial statements shall be accompanied by PriceWaterhouseCoopers or other a report and opinion thereon by independent certified public accountants of recognized national or regional standing (without any qualification or exception as selected by HoldCo and acceptable to the scope of such audit) to the effect that such consolidated financial statements present fairly in all material respects the financial condition and results of operations of the Company and its consolidated Subsidiaries on a consolidated basis in accordance with GAAP consistently applied;Cosi.
(bd) within 105 days HoldCo and the Subsidiary shall furnish to Cosi, as soon as practicable after the end of each fiscal year quarter, and in any event within thirty (or30) days thereafter, if required to be filed with the SEC sooner, then concurrently with such filing), its a consolidated balance sheets sheet of each of HoldCo and related statements of income, stockholders' equity and cash flows the Subsidiary as of the end of each such quarter (and the same quarter in the prior fiscal year), and a consolidated statement of income, a consolidated statement of cash flows and a statement of stockholders’ equity of each of HoldCo and the Subsidiary for such quarter (and the same quarter in the prior fiscal year) and for such yearthe current fiscal year to date, prepared in accordance with generally accepted accounting principles consistently applied and setting forth in each case case, in comparative form form, the corresponding figures for the previous corresponding period of the preceding fiscal year, all certified by one of its Financial Officers as presenting fairly in all material respects the results of operations of the Company on a consolidated basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments reasonable detail.
(e) HoldCo and the absence of footnotes;
(c) within 60 days Subsidiary shall furnish to Cosi, as soon as practicable after the end of each of month, and in any event within twenty (20) days thereafter, the first three fiscal quarters standard unaudited monthly financial statements of each fiscal year (orof HoldCo and the Subsidiary, if required to be filed with the SEC sooner, then concurrently with such filing), its Form 10-Q containing its consolidated balance sheet and related statements of income, stockholders' equity and cash flows as of the end of and for such fiscal quarter and the then elapsed portion just completed month (consisting of the fiscal year, setting forth in each case in comparative form the figures for the corresponding period or periods of (or, in the case of the at least a balance sheet, as of income statement and cash flow statement for the end ofcurrent period) the previous fiscal year;
(d) within 60 days after the end or information showing actual monthly revenues, expenses, and cash output and balance of each of HoldCo and the first three fiscal quarters of each fiscal yearSubsidiary versus budgeted revenues, its consolidated balance sheet and related statements of incomeexpenses, stockholders' equity and cash flows as of the end of and for such fiscal quarter and the then elapsed portion of the fiscal year, setting forth in each case in comparative form the figures for the corresponding period or periods of (or, in the case of the balance sheet, as of the end of) the budget and previous fiscal year, all certified by one of its Financial Officers as presenting fairly in all material respects the results of operations of the Company on a consolidated basis in accordance flow with GAAP consistently applied, subject to normal year-end audit adjustments and the absence of footnotes;
(e) within 30 days after the end of each month which is neither a fiscal year end nor a fiscal quarter end, its consolidated balance sheet and related statements of income, stockholders' equity and cash flows as of the end of and for such month and the then elapsed portion of the fiscal year, setting forth in each case in comparative form the figures for the corresponding period or periods of (or, in the case of the balance sheet, as of the end of) the previous fiscal year, all certified by one of its Financial Officers as presenting fairly in all material respects the results of operations of the Company on a consolidated basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments and the absence of footnotes;balance.
(f) HoldCo and the Subsidiary shall furnish the following to Cosi:
(i) promptly upon receipt or publication thereof, any written reports submitted to either HoldCo or the Subsidiary by no later than December 15 independent public accountants in connection with an annual or interim audit of each fiscal yearthe books of either HoldCo or the Subsidiary made by such accountants, a budget and business plan for written reports prepared by either HoldCo or the immediately succeeding fiscal year in the form approved by the Company's board of directors, in form, scope and detail satisfactory Subsidiary to the Purchasers and on a quarterly basis for each fiscal quarter of such succeeding fiscal yearcomply with any other investment or loan agreement;
(gii) promptly after the same become publicly commencement thereof, notice of all actions, suits, litigation proceedings and other proceedings pending or, to the knowledge of HoldCo, threatened against either HoldCo or the Subsidiary affecting any of their respective material properties or assets, or against any officer, director, employee of either HoldCo or the Subsidiary relating to such person’s performance of his or her duties or otherwise relating to the business of either HoldCo or the Subsidiary;
(iii) promptly upon sending, making available, (or filing the same, such reports and financial statements as the HoldCo or the Subsidiary shall send or make available to the extent not available through electronic meansmembers or managers of either HoldCo or the Subsidiary; and
(iv) copies such other information respecting the business, properties or the condition or operations, financial or other, of all periodic either HoldCo or the Subsidiary as Cosi may from time to time reasonably request.
(v) HoldCo shall permit Cosi, at Cosi’s expense and other reportsupon Cosi’s reasonable request, proxy statements to visit and other materials filed by inspect the Company or any properties, examine the books of account and records, and discuss the affairs, finances, and accounts of each of HoldCo and the Subsidiary with the SECofficers, or any Governmental Agency succeeding to any or all managers and employees of HoldCo and/or the functions of the SEC, or with any national securities exchange, or distributed by the Company to its stockholders generallySubsidiary, as the case may be;
(h, during normal business hours; provided, however, that no person shall be obligated pursuant to this Section 9(f) promptly after to provide access to any information that HoldCo or the same are delivered Subsidiary reasonably considers to be a trade secret or confidential information HoldCo or the members Subsidiary and which is not confidential or proprietary information of the Board of Directorsor trade secrets owned by Cosi, copies of all business plans and other financial plans relating to the Company and/or its Subsidiaries; and
(i) promptly following any request therefor, such or data or other information regarding deemed to be owned by Cosi, under the operationsFranchise Agreements (unless covered by an enforceable confidentiality agreement) or the disclosure of which would adversely affect the attorney-client privilege between any holder of equity securities of HoldCo, business affairs HoldCo or the Subsidiary and financial condition of the Company its or any Subsidiary, or compliance with the terms of the this Agreement or any Related Document, as the Purchasers may reasonably requesttheir counsel.
Appears in 1 contract
Sources: Merger Agreement (Cosi Inc)
Information Rights. The Company shall furnish to each Purchaser who holds at least 5% of the Common Stock on a fully diluted as if converted basis (and regardless to each of GE and Midwest if such Purchaser holds at least a majority of the Series B Shares such Purchaser purchased hereunder):Vista:
(a) within 105 90 days after the end of each fiscal year (or, if required to be filed with the SEC sooner, then concurrently with such filing), its Form 10-K containing its audited consolidated balance sheet and related statements of income, stockholders' equity and cash flows as of the end of and for such year, setting forth in each case in comparative form the figures for the previous fiscal year, all reported on by PriceWaterhouseCoopers KPMG LLP or other independent public accountants of recognized national standing (without a "going concern" or like qualification or exception and without any qualification or exception as to the scope of such audit) to the effect that such consolidated financial statements present fairly in all material respects the financial condition and results of operations of the Company and its consolidated Subsidiaries on a consolidated basis in accordance with GAAP consistently applied;
(b) within 105 90 days after the end of each fiscal year (or, if required to be filed with the SEC sooner, then concurrently with such filing), (i) its consolidated consolidating balance sheets and related statements of income, stockholders' equity and cash flows as of the end of and for such year, setting forth in each case in comparative form the figures for the budget and previous fiscal yearyear and (ii) an unaudited income statement for each of the Company's business lines, all certified by one of its Financial Officers as presenting fairly in all material respects the results of operations of the Company on a consolidated consolidating basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments and the absence of footnotes;
(c) within 60 45 days after the end of each of the first three fiscal quarters of each fiscal year (or, if required to be filed with the SEC sooner, then concurrently with such filing), its Form 10-Q containing its consolidated balance sheet and related statements of income, stockholders' equity and cash flows as of the end of and for such fiscal quarter and the then elapsed portion of the fiscal year, setting forth in each case in comparative form the figures for the corresponding period or periods of (or, in the case of the balance sheet, as of the end of) the previous fiscal year;
(d) within 60 30 days after the end of each of the first three fiscal quarters of each fiscal year, (i) its consolidated consolidating balance sheet and related statements of income, stockholders' equity and cash flows as of the end of and for such fiscal quarter and the then elapsed portion of the fiscal year, setting forth in each case in comparative form the figures for the corresponding period or periods of (or, in the case of the balance sheet, as of the end of) the budget and previous fiscal yearyear and (ii) an unaudited income statement for each of the Company's business lines, all certified by one of its Financial Officers as presenting fairly in all material respects the results of operations of the Company on a consolidated consolidating basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments and the absence of footnotes;
(e) within 30 days after the end of each month which is neither a fiscal year end nor a fiscal quarter end, (i) its consolidated consolidating balance sheet and related statements of income, stockholders' equity and cash flows as of the end of and for such month and the then elapsed portion of the fiscal year, setting forth in each case in comparative form the figures for the corresponding period or periods of (or, in the case of the balance sheet, as of the end of) the budget and previous fiscal yearyear and (ii) an unaudited income statement for each of the Company's business lines, all certified by one of its Financial Officers as presenting fairly in all material respects the results of operations of the Company on a consolidated consolidating basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments and the absence of footnotes;
(f) by no later than December 15 of each fiscal year, a budget and business plan for the immediately succeeding fiscal year in the form approved by the Company's board of directors, together with a business forecast for such succeeding fiscal year, all in form, scope and detail satisfactory to the Purchasers Vista and on a quarterly basis for each fiscal quarter of such succeeding fiscal year;
(g) promptly after the same become publicly available, (to the extent not available through electronic means) copies of all periodic and other reports, proxy statements and other materials filed by the Company or any Subsidiary with the SEC, or any Governmental Agency succeeding to any or all of the functions of the SEC, or with any national securities exchange, or distributed by the Company to its stockholders generally, as the case may be;
(h) promptly after the same are delivered to the members of the Board of Directors, copies of all business plans and other financial plans relating to the Company and/or its Subsidiaries; and
(i) promptly following any request therefor, such other information regarding the operations, business affairs and financial condition of the Company or any Subsidiary, or compliance with the terms of the this Agreement or any Related Document, as the Purchasers Vista may reasonably request.
Appears in 1 contract
Sources: Preferred Stock Purchase Agreement (Aspect Communications Corp)
Information Rights. The Company Retek shall furnish deliver to each Purchaser who holds at least 5% of the Common Stock on a fully diluted HNC in such format and media as if converted basis (and regardless to each of GE and Midwest if such Purchaser holds at least a majority of the Series B Shares such Purchaser purchased hereunder):HNC may reasonably request:
(a) as soon as available, but in any event within 105 twenty (20) days after the end of each month and each quarter, a consolidated balance sheet of Retek and its consolidated subsidiaries as of the end of such month or quarter and the related consolidated statements of earnings, stockholders' equity and statement of cash flows for such month or quarter, as the case may be, and for the year to date, setting forth, in each case, in comparative form the figures for the corresponding period of one year earlier, all in reasonable detail and prepared in accordance with generally accepted accounting principles ("GAAP") (except for the omission of footnotes) applied on a consistent basis throughout the periods represented;
(b) as soon as available, but in any event within ninety (90) days after the end of each fiscal year (orof Retek, if required to be filed with the SEC sooner, then concurrently with such filing), its Form 10-K containing its a consolidated audited consolidated balance sheet of Retek and its consolidated subsidiaries as of the end of such fiscal year and the related statements of incomeearnings, stockholders' equity and statement of cash flows as of the end of and for such yearfiscal year setting forth, setting forth in each case in comparative form the figures for the previous fiscal year, all reported on in reasonable detail for audit clearance within HNC. Retek will deliver to HNC within ninety (90) days after the end of each fiscal year such materials accompanied by PriceWaterhouseCoopers or other the report thereon of Retek's independent public accountants of recognized national standing (without any qualification or exception as to the scope of such audit) to the effect auditors, which report shall state that such consolidated financial statements present fairly in all material respects the financial condition and results of operations of the Company Retek and its consolidated Subsidiaries on a consolidated basis subsidiaries as of the close of such fiscal year in accordance conformity with GAAP consistently applied;
(bc) within 105 at least three (3) business days after the end of each fiscal year (or, if required prior to be filed Retek's filing thereof with the SEC sooner, then concurrently with such filing), its consolidated balance sheets and related statements of income, stockholders' equity and cash flows as of the end of and for such year, setting forth in each case in comparative form the figures for the previous fiscal yearSEC, all certified reports, proxy statements, registration statements and other filings made by one of its Financial Officers as presenting fairly in all material respects Retek under the results of operations of Securities Act or the Company on a consolidated basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments and the absence of footnotes;
(c) within 60 days after the end of each of the first three fiscal quarters of each fiscal year (or, if required to be filed with the SEC sooner, then concurrently with such filing), its Form 10-Q containing its consolidated balance sheet and related statements of income, stockholders' equity and cash flows as of the end of and for such fiscal quarter and the then elapsed portion of the fiscal year, setting forth in each case in comparative form the figures for the corresponding period or periods of (or, in the case of the balance sheet, as of the end of) the previous fiscal yearExchange Act;
(d) within 60 days after all written reports, analyses or studies relating to the end business or financial condition of each of the first three fiscal quarters of each fiscal year, its consolidated balance sheet and related statements of income, stockholders' equity and cash flows Retek as of the end of and for such fiscal quarter and the then elapsed portion of the fiscal year, setting forth in each case in comparative form the figures for the corresponding period or periods of (or, in the case of the balance sheet, as of the end of) the budget and previous fiscal year, all certified by one Retek shall deliver to any other holder of its Financial Officers as presenting fairly in all material respects the results of operations of the Company on a consolidated basis in accordance Common Stock, simultaneously with GAAP consistently applied, subject its delivery to normal year-end audit adjustments and the absence of footnotessuch holder;
(e) within 30 as soon as available, but in any event no later than five (5) business days after the end following receipt of each month which is neither a fiscal year end nor a fiscal quarter endrequest by HNC, its consolidated balance sheet and related statements of income, stockholders' equity and cash flows such other information relating to Retek as of the end of and for such month and the then elapsed portion of the fiscal year, setting forth in each case in comparative form the figures for the corresponding period or periods of (orHNC may reasonably request, in connection with the case of the balance sheet, as of the end of) the previous fiscal year, all certified by one reporting of its Financial Officers as presenting fairly ownership interest in all material respects Retek under the results "equity method" of operations of the Company on a consolidated basis accounting in accordance with GAAP consistently appliedor as may otherwise be required by GAAP, subject to normal year-end audit adjustments prepare HNC's own financial statements and reports under the absence of footnotes;Exchange Act and in accordance with GAAP; and
(f) by as soon as practicable, but in any event no later than December 15 of each fiscal year, a budget and two (2) business plan for the immediately succeeding fiscal year in the form approved by the Company's board of directors, in form, scope and detail satisfactory days prior to the Purchasers and on a quarterly basis for each fiscal quarter of such succeeding fiscal year;
(g) promptly after the same become publicly available, (to the extent not available through electronic means) copies of all periodic and other reports, proxy statements and other materials filed by the Company or any Subsidiary with the SEC, or any Governmental Agency succeeding to any or all of the functions of the SEC, or with any national securities exchange, or distributed by the Company to its stockholders generally, as the case may be;
(h) promptly after the same are delivered to the members of the Board of Directorsissuance, copies of substantially final drafts of all business plans press releases and other financial plans relating statements to be 24 made available by Retek or any of its Subsidiaries or to the Company and/or public concerning material developments in the business, properties, earnings, results of operations, financial condition or prospects of Retek or any of its Subsidiaries; and
Subsidiaries or the relationship between (i) promptly following any request therefor, such other information regarding the operations, business affairs and financial condition of the Company Retek or any Subsidiaryof its Subsidiaries and (ii) HNC or any of its Affiliates. In addition, within such two day period prior to the issuance of any such press release or compliance public statement, Retek shall actively consult with HNC regarding any changes (other than typographical or other similar minor changes) to such substantially final drafts. Retek further agrees to review any proposed press release regarding its financial or operating results for any period with the terms audit committee of Retek's Board of Directors and Retek's independent auditors a reasonable amount of time prior to the this Agreement or any Related Document, as the Purchasers may reasonably requestinitial public release of such press release.
Appears in 1 contract
Information Rights. The Company shall furnish deliver to each Purchaser Investor who holds continues to hold at least five percent (5% %) of the Common Company’s Preferred Stock on a fully diluted as if converted basis (subject to appropriate adjustment for stock splits, stock dividends, combinations and regardless to each of GE and Midwest if such Purchaser holds at least a majority of the Series B Shares such Purchaser purchased hereunderother recapitalizations):
(a) as soon as practicable, but in any event within 105 one hundred twenty (120) calendar days after the end of each fiscal year (orof the Company, or such longer period as may be approved by the Board, consolidated balance sheets of the Company and its subsidiaries, if required to be filed with the SEC soonerany, then concurrently with such filing), its Form 10-K containing its audited consolidated balance sheet and related statements of income, stockholders' equity and cash flows as of the end of and for such year, setting forth in each case in comparative form the figures for the previous fiscal year, all reported on by PriceWaterhouseCoopers or other independent public accountants and consolidated statements of recognized national standing (without any qualification or exception as to the scope income and consolidated statements of such audit) to the effect that such consolidated financial statements present fairly in all material respects the financial condition and results of operations cash flows of the Company and its consolidated Subsidiaries on a consolidated basis subsidiaries, if any, for such year, prepared in accordance with GAAP consistently appliedgenerally accepted accounting principles (“GAAP”), all in reasonable detail and audited by independent public accountants of national standing selected by the Company;
(b) as soon as practicable, but in any event within 105 days after the end of each fiscal year forty-five (or, if required to be filed with the SEC sooner, then concurrently with such filing), its consolidated balance sheets and related statements of income, stockholders' equity and cash flows as of the end of and for such year, setting forth in each case in comparative form the figures for the previous fiscal year, all certified by one of its Financial Officers as presenting fairly in all material respects the results of operations of the Company on a consolidated basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments and the absence of footnotes;
(c45) within 60 calendar days after the end of each of the first three fiscal (3) quarters of each fiscal year (orof the Company, consolidated balance sheets of the Company and its subsidiaries, if required to be filed with the SEC soonerany, then concurrently with such filing), its Form 10-Q containing its consolidated balance sheet and related statements of income, stockholders' equity and cash flows as of the end of such quarter, and consolidated statements of income and consolidated statements of cash flows of the Company and its subsidiaries, if any, for such fiscal quarter quarter, prepared in accordance with GAAP, all in reasonable detail and the then elapsed portion a comparison of the fiscal year, setting forth in each case in comparative form quarter’s results with those projected by the figures for the corresponding period or periods of (or, in the case of the balance sheet, as of the end of) the previous fiscal yearCompany’s business plan;
(dc) as soon as practicable, but in any event within 60 thirty (30) calendar days after the end of each month, consolidated balance sheets of the first three fiscal quarters of each fiscal yearCompany and its subsidiaries, its consolidated balance sheet and related statements of incomeif any, stockholders' equity and cash flows as of the end of each such month, and for such fiscal quarter consolidated statements of income and the then elapsed portion consolidated statements of cash flows of the fiscal yearCompany and its subsidiaries, setting forth in if any, for each case in comparative form such month, that fairly present the figures for the corresponding period or periods of (or, in the case financial condition of the balance sheet, as of the end of) the budget and previous fiscal year, all certified by one of its Financial Officers as presenting fairly Company in all material respects the results of operations of the Company on a consolidated basis (which monthly financial statements may or may not be prepared in accordance with GAAP consistently applied, subject to normal year-end audit adjustments and the absence of footnotesGAAP);
(ed) within 30 as soon as practicable, but in any event thirty (30) calendar days after prior to the end of each month which is neither a fiscal year end nor a fiscal quarter end, its consolidated balance sheet and related statements of income, stockholders' equity and cash flows as of the end of and for such month and the then elapsed portion of the fiscal year, setting forth in each case in comparative form the figures for the corresponding period or periods of (or, in the case of the balance sheet, as of the end of) the previous fiscal year, all certified by one of its Financial Officers as presenting fairly in all material respects the results of operations of the Company on a consolidated basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments and the absence of footnotes;
(f) by no later than December 15 of each fiscal year, a budget and business plan for the immediately succeeding next fiscal year in the form approved year, prepared on a monthly basis, including balance sheets and income statements for such months and, as soon as prepared, any other budgets or revised budgets prepared by the Company's board of directors, in form, scope and detail satisfactory to the Purchasers and on a quarterly basis for each fiscal quarter of such succeeding fiscal year;
(g) promptly after the same become publicly available, (to the extent not available through electronic means) copies of all periodic and other reports, proxy statements and other materials filed by the Company or any Subsidiary with the SEC, or any Governmental Agency succeeding to any or all of the functions of the SEC, or with any national securities exchange, or distributed by the Company to its stockholders generally, as the case may be;
(h) promptly after the same are delivered to the members of the Board of Directors, copies of all business plans and other financial plans relating to the Company and/or its Subsidiaries; and
(ie) promptly following as soon as practicable, but in any request thereforevent fifteen (15) calendar days prior to the end of each fiscal year, such other information regarding the operationsa business plan (including head count projections, business affairs sales projections and financial condition of statement projections) for the Company or any Subsidiary, or compliance with the terms of the this Agreement or any Related Document, as the Purchasers may reasonably requestnext four (4) fiscal quarters.
Appears in 1 contract
Information Rights. The Company shall furnish deliver to each Purchaser Investor who holds (and continues to hold) at least 5% 600,000 shares of the Conversion Stock and/or Common Stock on (subject to appropriate adjustment for stock splits, stock dividends and combinations) (each, a fully diluted as if converted basis (and regardless to each of GE and Midwest if such Purchaser holds at least a majority of the Series B Shares such Purchaser purchased hereunder“Major Investor”):
(a) as soon as practicable, but in any event within 105 one hundred twenty (120) calendar days after the end of each fiscal year (orof the Company, consolidated balance sheets of the Company and its subsidiaries, if required to be filed with the SEC soonerany, then concurrently with such filing), its Form 10-K containing its audited consolidated balance sheet and related statements of income, stockholders' equity and cash flows as of the end of and for such year, setting forth in each case in comparative form the figures for the previous fiscal year, all reported on by PriceWaterhouseCoopers or other independent public accountants and consolidated statements of recognized national standing (without any qualification or exception as to the scope income and consolidated statements of such audit) to the effect that such consolidated financial statements present fairly in all material respects the financial condition and results of operations cash flows of the Company and its consolidated Subsidiaries on a consolidated basis subsidiaries, if any, for such year, prepared in accordance with GAAP consistently appliedgenerally accepted accounting principles (“GAAP”), all in reasonable detail and audited by independent public accountants of national standing selected by the Company;
(b) as soon as practicable, but in any event within 105 days after the end of each fiscal year forty-five (or, if required to be filed with the SEC sooner, then concurrently with such filing), its consolidated balance sheets and related statements of income, stockholders' equity and cash flows as of the end of and for such year, setting forth in each case in comparative form the figures for the previous fiscal year, all certified by one of its Financial Officers as presenting fairly in all material respects the results of operations of the Company on a consolidated basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments and the absence of footnotes;
(c45) within 60 calendar days after the end of each of the first three fiscal (3) quarters of each fiscal year (orof the Company, consolidated balance sheets of the Company and its subsidiaries, if required to be filed with the SEC soonerany, then concurrently with such filing), its Form 10-Q containing its consolidated balance sheet and related statements of income, stockholders' equity and cash flows as of the end of such quarter, and consolidated statements of income and consolidated statements of cash flows of the Company and its subsidiaries, if any, for such fiscal quarter and the then elapsed portion prepared in accordance with GAAP, all in reasonable detail;
(c) as soon as practicable, but in any event within thirty (30) calendar days of the fiscal yearend of each month, setting forth in each case in comparative form the figures for the corresponding period or periods of (or, in the case i) consolidated balance sheets of the balance sheetCompany and its subsidiaries, if any, as of the end ofof such month, and consolidated statements of income and consolidated statements of cash flows of the Company and its subsidiaries, if any, for such month prepared in accordance with GAAP, all in reasonable detail, and (ii) an executive summary of the previous fiscal year;Company’s operations during such preceding month; and
(d) within 60 as soon as practicable, but in any event thirty (30) calendar days after prior to the end of each of the first three fiscal quarters of each fiscal year, its consolidated balance sheet and related statements of income, stockholders' equity and cash flows as of the end of and for such fiscal quarter and the then elapsed portion of the fiscal year, setting forth in each case in comparative form the figures for the corresponding period or periods of (or, in the case of the balance sheet, as of the end of) the budget and previous fiscal year, all certified by one of its Financial Officers as presenting fairly in all material respects the results of operations of the Company on a consolidated basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments and the absence of footnotes;
(e) within 30 days after the end of each month which is neither a fiscal year end nor a fiscal quarter end, its consolidated balance sheet and related statements of income, stockholders' equity and cash flows as of the end of and for such month and the then elapsed portion of the fiscal year, setting forth in each case in comparative form the figures for the corresponding period or periods of (or, in the case of the balance sheet, as of the end of) the previous fiscal year, all certified by one of its Financial Officers as presenting fairly in all material respects the results of operations of the Company on a consolidated basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments and the absence of footnotes;
(f) by no later than December 15 of each fiscal year, a budget and business plan for the immediately succeeding next fiscal year in the form year, prepared on a monthly basis, including balance sheets and income statements for such months, which budget shall have been approved by the Company's board Board of directors, in form, scope and detail satisfactory to the Purchasers and on a quarterly basis for each fiscal quarter of such succeeding fiscal year;
(g) promptly after the same become publicly available, (to the extent not available through electronic means) copies of all periodic and other reports, proxy statements and other materials filed by the Company or any Subsidiary Directors with the SEC, or any Governmental Agency succeeding to any or all Preferred Stockholder Directors (as defined in the Company’s Certificate of the functions of the SEC, or with any national securities exchange, or distributed by the Company to its stockholders generallyIncorporation, as the case may be;
(hamended from time to time) promptly after the same are delivered to the members of the Board of Directors, copies of all business plans and other financial plans relating to the Company and/or its Subsidiaries; and
(i) promptly following any request therefor, such other information regarding the operations, business affairs and financial condition of the Company or any Subsidiary, or compliance with the terms of the this Agreement or any Related Document, as the Purchasers may reasonably requestconcurring.
Appears in 1 contract
Information Rights. The Company shall furnish to each Purchaser who holds at least 5% of and the Common Stock on a fully diluted Successor hereby covenant and agree as if converted basis (and regardless to each of GE and Midwest if such Purchaser holds at least a majority of the Series B Shares such Purchaser purchased hereunder):follows:
(a) within 105 days The Successor will mail by first class, postage prepaid the following reports to the Purchasers:
(i) As soon as practicable after the end of each fiscal year month, and in any event within thirty-five (or35) days thereafter, if required to be filed with the SEC sooner, then concurrently with such filing), its Form 10-K containing its audited an unaudited consolidated balance sheet of the Successor and related statements of incomethe Subsidiaries, stockholders' equity and cash flows as of the end of such fiscal month, and unaudited consolidated statements of income and unaudited consolidated statements of cash flows and notes thereto of the Successor and the Subsidiaries, for such month and for such year, setting forth in each case in comparative form the figures for the previous current fiscal year, all reported on by PriceWaterhouseCoopers or other independent public accountants of recognized national standing (without any qualification or exception as year to the scope of such audit) to the effect that such consolidated date. Such financial statements present fairly in all material respects the financial condition and results of operations of the Company and its consolidated Subsidiaries on a consolidated basis shall be prepared in accordance with GAAP generally accepted accounting principles consistently applied;applied (other than for accompanying notes), all in reasonable detail.
(bii) within 105 days As soon as practicable after the end of each fiscal year year, and in any event within seventy-five (or75) days thereafter, if required to be filed with the SEC sooner, then concurrently with such filing), its a consolidated balance sheets sheet of the Successor and related statements of incomethe Subsidiaries, stockholders' equity and cash flows as of the end of and for each such year, setting forth in each case in comparative form the figures for the previous fiscal year, all certified by one and consolidated statements of its Financial Officers as presenting fairly in all material respects the results income and consolidated statements of operations cash flows and notes thereto of the Company on a consolidated basis Successor and the Subsidiaries, for such fiscal year. Such financial statements shall be prepared in accordance with GAAP generally accepted accounting principles consistently appliedapplied (other than for accompanying notes), subject all in reasonable detail and shall be audited by an independent public accounting firm reasonably acceptable to normal year-end audit adjustments and the absence of footnotes;Purchasers.
(ciii) within 60 As soon as practicable, but in any event forty-five (45) days after prior to the end of each of the first three fiscal quarters of each fiscal year (or, if required to be filed with the SEC sooner, then concurrently with such filing), its Form 10-Q containing its consolidated balance sheet and related statements of income, stockholders' equity and cash flows as of the end of and for such fiscal quarter and the then elapsed portion of the fiscal year, setting forth in each case in comparative form the figures for the corresponding period or periods of (or, in the case of the balance sheet, as of the end of) the previous fiscal year;
(d) within 60 days after the end of each of the first three fiscal quarters of each fiscal year, its consolidated balance sheet and related statements of income, stockholders' equity and cash flows as of the end of and for such fiscal quarter and the then elapsed portion of the fiscal year, setting forth in each case in comparative form the figures for the corresponding period or periods of (or, in the case of the balance sheet, as of the end of) the budget and previous fiscal year, all certified by one of its Financial Officers as presenting fairly in all material respects the results of operations of the Company on a consolidated basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments and the absence of footnotes;
(e) within 30 days after the end of each month which is neither a fiscal year end nor a fiscal quarter end, its consolidated balance sheet and related statements of income, stockholders' equity and cash flows as of the end of and for such month and the then elapsed portion of the fiscal year, setting forth in each case in comparative form the figures for the corresponding period or periods of (or, in the case of the balance sheet, as of the end of) the previous fiscal year, all certified by one of its Financial Officers as presenting fairly in all material respects the results of operations of the Company on a consolidated basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments and the absence of footnotes;
(f) by no later than December 15 of each fiscal year, a budget and business plan for the immediately succeeding next fiscal year in the form approved 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 revisions to such budget prepared by the CompanySuccessor, and describing in detail, at a minimum, management's board of directorsassumptions with respect to (1) revenues, in form(2) customers and contracts, scope (3) operating costs and detail satisfactory (4) capital expenditures.
(b) Purchasers shall have access to the Purchasers Company's, the Successor's and on a quarterly basis for each fiscal quarter the Subsidiaries' books, records and facilities during normal business hours which does not unduly interfere with the operation of such succeeding fiscal year;the Company, the Successor and the Subsidiaries, and reasonable access to the Company's, the Successor's and the Subsidiaries' officers or managing members or similar representatives to discuss the Company's, the Successor's and the Subsidiaries' accounts, finances and affairs.
(gc) promptly after The information rights set forth in this Section 7.2 may not be transferred, except to an affiliate, partner, member or former partner or member of a Purchaser which holds Shares, without the same become publicly available, (to the extent not available through electronic means) copies of all periodic and other reports, proxy statements and other materials filed by the Company or any Subsidiary with the SEC, or any Governmental Agency succeeding to any or all prior written consent of the functions of the SECSuccessor, or with any national securities exchange, or distributed by the Company not to its stockholders generally, as the case may be;be unreasonably withheld.
(hd) promptly after The information rights set forth in this Section 7.2 shall terminate on and be of no further force or effect upon the same are delivered to the members earlier of the Board of Directors, copies of all business plans and other financial plans relating to the Company and/or its Subsidiaries; and
(i) promptly following any request therefor, such other information regarding the operations, business affairs and financial condition consummation of the Company or any SubsidiarySuccessor's sale of its Common Stock in an underwritten public offering pursuant to an effective registration statement filed under the Securities Act (PROVIDED, or compliance that the offering results in aggregate gross cash proceeds to the Successor of at least $30,000,000, and immediately subsequent to which the Successor shall be obligated to file annual and quarterly reports with the terms Commission pursuant to Section 13 or 15(d) of the this Agreement or any Related DocumentSecurities Exchange Act of 1934, as amended (the Purchasers may reasonably request"Exchange Act") or (ii) the registration by the Successor of a class of its equity securities under Section 12(b) or 12(g) of the Exchange Act.
Appears in 1 contract
Sources: Preferred Stock Purchase Agreement (Reckson Services Industries Inc)
Information Rights. The Company Until the Rights Termination Time, the Investor shall furnish to each Purchaser who holds at least 5% of have the Common Stock on a fully diluted as if converted basis (and regardless to each of GE and Midwest if such Purchaser holds at least a majority of the Series B Shares such Purchaser purchased hereunder):right to:
(a) receive either (i) a substantially complete draft of the Company’s Annual Report on Form 10-K at least three Business Days prior to the expected date such report will be filed with the SEC or (ii) if the Company ceases to be subject to the requirement to file annual reports with the SEC, then annual financial statements of the Company (which in any event shall be delivered to the Investor within 105 120 days after the end of each fiscal year of the Company), which shall include (or1) a balance sheet as of the end of such year, if required (2) statements of income and of cash flows for such year and setting forth in each case in comparative form the corresponding figures for the previous fiscal year, and (3) a statement of stockholders’ equity as of the end of such year;
(b) receive either (i) a substantially complete draft of the Company’s Quarterly Report on Form 10-Q at least three Business Days prior to the expected date such report will be filed with the SEC sooneror (ii) if the Company ceases to be subject to the requirement to file quarterly reports with the SEC, then concurrently with such filingunaudited quarterly financial statements of the Company (which in any event shall be delivered to the Investor within 60 days after the end of the first three quarters of each fiscal year of the Company ), its Form 10-K containing its audited consolidated balance sheet and related which shall include unaudited statements of income, stockholders' ’ equity and cash flows for such fiscal quarter, and an unaudited balance sheet as of the end of and for such yearfiscal quarter, setting forth in each case in comparative form the corresponding figures for the corresponding periods of the previous fiscal year, all reported on by PriceWaterhouseCoopers or other independent public accountants of recognized national standing (without any qualification or exception as to the scope of such audit) to the effect that such consolidated financial statements present fairly in all material respects the financial condition and results of operations of the Company and its consolidated Subsidiaries on a consolidated basis prepared in accordance with GAAP consistently applied;
(bexcept that such financial statements may (A) within 105 days after the end of each fiscal year (or, if required to be filed with the SEC sooner, then concurrently with such filing), its consolidated balance sheets and related statements of income, stockholders' equity and cash flows as of the end of and for such year, setting forth in each case in comparative form the figures for the previous fiscal year, all certified by one of its Financial Officers as presenting fairly in all material respects the results of operations of the Company on a consolidated basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments adjustments; and the absence of footnotes(B) not contain all notes thereto that may be required in accordance with GAAP);
(c) within 60 days after meet, at a time reasonably agreed by the end of each Company and Investor, with senior management of the first three fiscal quarters of each fiscal year (or, if required to be filed with the SEC sooner, then concurrently with such filing), its Form 10-Q containing its consolidated balance sheet and related statements of income, stockholders' equity and cash flows as of the end of and for such Company at least once per fiscal quarter to discuss the Company’s operations and the then elapsed portion performance and ask questions of the fiscal year, setting forth in each case in comparative form the figures for the corresponding period or periods of (or, in the case of the balance sheet, as of the end of) the previous fiscal year;management; and
(d) within 60 days after receive copies of all customary and material board materials distributed to the end of each of the first three fiscal quarters of each fiscal year, its consolidated balance sheet and related statements of income, stockholders' equity and cash flows Board in their capacity as of the end of and for such fiscal quarter and the then elapsed portion of the fiscal year, setting forth in each case in comparative form the figures for the corresponding period or periods of (or, in the case of the balance sheet, as of the end of“Board Materials”) the budget and previous fiscal year, all certified by one of its Financial Officers as presenting fairly in all material respects the results of operations of the Company on a consolidated basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments and the absence of footnotes;
(e) within 30 days after the end of each month which is neither a fiscal year end nor a fiscal quarter end, its consolidated balance sheet and related statements of income, stockholders' equity and cash flows as of the end of and for such month and the then elapsed portion of the fiscal year, setting forth in each case in comparative form the figures for the corresponding period or periods of (or, in the case of the balance sheet, as of the end of) the previous fiscal year, all certified by one of its Financial Officers as presenting fairly in all material respects the results of operations of the Company on a consolidated basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments and the absence of footnotes;
(f) by no later than December 15 of each fiscal year, a budget and business plan for the immediately succeeding fiscal year in the form approved by the Company's board of directors, in form, scope and detail satisfactory to the Purchasers and on a quarterly basis for each fiscal quarter of time when such succeeding fiscal year;
(g) promptly after the same become publicly available, (to the extent not available through electronic means) copies of all periodic and other reports, proxy statements and other materials filed by the Company or any Subsidiary with the SEC, or any Governmental Agency succeeding to any or all of the functions of the SEC, or with any national securities exchange, or Board Materials are distributed by the Company to its stockholders generally, as the case may be;
(h) promptly after the same are delivered to the members of the Board; provided, that the Investor shall not be entitled to receive any Board Materials (or any portion of Directors, copies of all business plans and other financial plans relating any Board Materials) to the Company and/or its Subsidiaries; and
(i) promptly following any request therefor, such other information regarding the operations, business affairs and financial condition of extent the Company or any Subsidiarythe Board determines in good faith that such information or materials would reasonably be likely to adversely affect the attorney-client or similar privileges between the Company and its legal counsel or other advisors (“Privileged Information”), or compliance with and the terms of Company will accordingly redact Privileged Information from the this Agreement or any Related Document, as the Purchasers may reasonably requestBoard Materials provided to Investor.
Appears in 1 contract
Sources: Investor Rights Agreement (Commercial Vehicle Group, Inc.)
Information Rights. The Company shall furnish to each Purchaser who So long as an Investor (together with its affiliates) holds at least 5% 333,333 shares of the Preferred Stock (or Common Stock on issued or issuable upon conversion of Preferred Stock, or a fully diluted as if converted basis combination thereof) (and regardless to each of GE and Midwest if such Purchaser holds at least investor, a majority of “Major Investor”), the Series B Shares such Purchaser purchased hereunder):Company will:
(a) within 105 days provide to each such Major Investor as soon as practicable after the end of each fiscal year year, and in any event within 120 days thereafter (or, if required to be filed with or such longer period as is unanimously approved by the SEC sooner, then concurrently with such filingCompany’s Board of Directors (the “Board”)), its Form 10-K containing its an audited consolidated balance sheet of the Company and related its subsidiaries, if any, as of the end of such fiscal year, and audited consolidated statements of income, stockholders' equity ’ equity, and cash flows as of the end of Company and its subsidiaries, if any, for such year, prepared in accordance with generally accepted accounting principles (“GAAP”) consistently applied with prior practice for earlier periods and setting forth in each case in comparative form the figures for the previous fiscal year, all reported on in reasonable detail and all audited and certified by PriceWaterhouseCoopers or other independent a nationally recognized public accountants accounting firm;
(b) provide such Major Investor as soon as practicable after the end of recognized national standing (without each month and in any qualification or exception as to the scope of such audit) to the effect that such event within 30 days thereafter, a consolidated financial statements present fairly in all material respects the financial condition and results of operations balance sheet of the Company and its subsidiaries, if any, as of the end of each such month, consolidated Subsidiaries on statements of income, and a consolidated basis statement of cash flow of the Company and its subsidiaries for such period prepared in accordance with GAAP consistently appliedapplied with prior practice for earlier periods (with the exception of footnotes that may be required by GAAP and provided that the foregoing shall not restrict the right of the Company to change its accounting principles consistent with GAAP, if the Board determines that it is in the best interest of the Company to do so), subject to changes resulting from audit adjustments, all in reasonable detail and signed by the principal financial or accounting officer of the Company;
(bc) within 105 days provide such Major Investor as soon as practicable after the end of each fiscal year (orquarter and in any event within 45 days thereafter, a consolidated balance sheet of the Company and its subsidiaries, if required to be filed with the SEC soonerany, then concurrently with such filing), its consolidated balance sheets and related statements of income, stockholders' equity and cash flows as of the end of each such quarter, consolidated statements of income, and a consolidated statement of cash flow of the Company and its subsidiaries for such period and for such yearthe current fiscal year to date, and setting forth in each case in comparative form the figures for corresponding periods in the previous fiscal year, all certified by one of its Financial Officers as presenting fairly and setting forth in all material respects comparative form the results of operations of budgeted figures for such period and for the Company on a consolidated basis current fiscal year then reported, prepared in accordance with GAAP consistently appliedapplied with prior practice for earlier periods (with the exception of footnotes that may be required by GAAP and provided that the foregoing shall not restrict the right of the Company to change its accounting principles consistent with GAAP, if the Board determines that it is in the best interest of the Company to do so), subject to normal changes resulting from year-end audit adjustments adjustments, all in reasonable detail and signed by the absence of footnotes;
(c) within 60 days after the end of each principal financial or accounting officer of the first three fiscal quarters of each fiscal year (or, if required to be filed with the SEC sooner, then concurrently with such filing), its Form 10-Q containing its consolidated balance sheet and related statements of income, stockholders' equity and cash flows as of the end of and for such fiscal quarter and the then elapsed portion of the fiscal year, setting forth in each case in comparative form the figures for the corresponding period or periods of (or, in the case of the balance sheet, as of the end of) the previous fiscal yearCompany;
(d) within 60 provide to such Major Investor, as soon as practicable and in any event at least 30 days after prior to the end of each of the first three fiscal quarters of each fiscal year, its consolidated balance sheet and related statements of income, stockholders' equity and cash flows as of the end of and for such fiscal quarter and the then elapsed portion of the fiscal year, setting forth in each case in comparative form the figures for the corresponding period or periods of (or, in the case of the balance sheet, as of the end of) the budget and previous fiscal year, all certified by one of its Financial Officers as presenting fairly in all material respects the results of operations of the Company on a consolidated basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments and the absence of footnotes;
(e) within 30 days after the end of each month which is neither a fiscal year end nor a fiscal quarter end, its consolidated balance sheet and related statements of income, stockholders' equity and cash flows as of the end of and for such month and the then elapsed portion of the fiscal year, setting forth in each case in comparative form the figures for the corresponding period or periods of (or, in the case of the balance sheet, as of the end of) the previous fiscal year, all certified by one of its Financial Officers as presenting fairly in all material respects the results of operations of the Company on a consolidated basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments and the absence of footnotes;
(f) by no later than December 15 of each fiscal year, a budget and business plan for the immediately succeeding next fiscal year in the form year, prepared on a monthly basis, including balance sheets and sources and applications of funds statements for such months, and a strategic plan, both of which shall have been approved by the Company's board of directors, in form, scope and detail satisfactory to the Purchasers and on a quarterly basis for each fiscal quarter of such succeeding fiscal yearBoard;
(ge) promptly after the same become publicly availableprovide to such Major Investor, (to the extent not available through electronic means) copies on request, a capitalization summary of all periodic and other reports, proxy statements and other materials filed by the Company or any Subsidiary with the SEC, or any Governmental Agency succeeding to any or all as December 31 of the functions of the SEC, or with any national securities exchange, or distributed by the Company to its stockholders generally, as the case may be;
(h) promptly after the same are delivered to the members of the Board of Directors, copies of all business plans and other financial plans relating to the Company and/or its Subsidiarieseach year; and
(if) promptly following any allow such Major Investor to examine the books and records of the Company, inspect the Company’s facilities and request thereforinformation, such other information regarding all at reasonable times and intervals, concerning the general status of the Company’s financial condition and operations, business affairs and financial condition of provided that the Company or any Subsidiary, or compliance with the terms of the this Agreement or any Related Document, as the Purchasers may reasonably requestrestrict access to confidential proprietary information and facilities.
Appears in 1 contract
Information Rights. The Company shall furnish Following the Closing and so long as the 50% Beneficial Ownership Requirement is satisfied, in order to each Purchaser who holds at least 5% facilitate (i) the Investor Parties’ compliance with legal and regulatory requirements applicable to the beneficial ownership by the Investor Parties and its Affiliates of equity securities of the Common Stock on a fully diluted as if converted basis Company and (and regardless ii) the Investor Representative’s oversight of the Investor Parties’ investment in the Company, the Company agrees to provide each of GE the Investor Parties and Midwest if such Purchaser holds at least a majority of the Series B Shares such Purchaser purchased hereunder):Investor Representative with the following:
(a) within 105 90 days after the end of each fiscal year of the Company, (orA) an audited, if required to be filed with the SEC sooner, then concurrently with such filing), its Form 10-K containing its audited consolidated balance sheet of the Company and related statements of income, stockholders' equity and cash flows its Subsidiaries as of the end of and for such year, setting forth in each case in comparative form the figures for the previous fiscal year, all reported on by PriceWaterhouseCoopers or other independent public accountants of recognized national standing (without any qualification or exception as to the scope of such auditB) to the effect that such an audited, consolidated financial statements present fairly in all material respects the financial condition and results of operations income statement of the Company and its Subsidiaries for such fiscal year and (C) an audited, consolidated statement of cash flows of the Company and its Subsidiaries for such fiscal year; provided that this requirement shall be deemed to have been satisfied if on a consolidated basis in accordance or prior to such date the Company files its annual report on Form 10-K for the applicable fiscal year with GAAP consistently appliedthe SEC;
(b) within 105 days after the end of each fiscal year (or, if required to be filed with the SEC sooner, then concurrently with such filing), its consolidated balance sheets and related statements of income, stockholders' equity and cash flows as of the end of and for such year, setting forth in each case in comparative form the figures for the previous fiscal year, all certified by one of its Financial Officers as presenting fairly in all material respects the results of operations of the Company on a consolidated basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments and the absence of footnotes;
(c) within 60 45 days after the end of each of the first three fiscal quarters of each fiscal year of the Company, (orA) an unaudited, if required to be filed with the SEC sooner, then concurrently with such filing), its Form 10-Q containing its consolidated balance sheet of the Company and related statements of income, stockholders' equity and cash flows its Subsidiaries as of the end of such fiscal quarter, (B) an unaudited, consolidated income statement of the Company and its Subsidiaries for such fiscal quarter and the then elapsed portion (C) an unaudited, consolidated statement of cash flows of the fiscal year, setting forth in each case in comparative form the figures for the corresponding period or periods of (or, in the case of the balance sheet, as of the end of) the previous fiscal year;
(d) within 60 days after the end of each of the first three fiscal quarters of each fiscal year, Company and its consolidated balance sheet and related statements of income, stockholders' equity and cash flows as of the end of and Subsidiaries for such fiscal quarter and quarter; provided that this requirement shall be deemed to have been satisfied if on or prior to such date the then elapsed portion of the fiscal year, setting forth in each case in comparative form the figures Company files its quarterly report on Form 10-Q for the corresponding period or periods of (or, in the case of the balance sheet, as of the end of) the budget and previous fiscal year, all certified by one of its Financial Officers as presenting fairly in all material respects the results of operations of the Company on a consolidated basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments and the absence of footnotes;
(e) within 30 days after the end of each month which is neither a applicable fiscal year end nor a fiscal quarter end, its consolidated balance sheet and related statements of income, stockholders' equity and cash flows as of the end of and for such month and the then elapsed portion of the fiscal year, setting forth in each case in comparative form the figures for the corresponding period or periods of (or, in the case of the balance sheet, as of the end of) the previous fiscal year, all certified by one of its Financial Officers as presenting fairly in all material respects the results of operations of the Company on a consolidated basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments and the absence of footnotes;
(f) by no later than December 15 of each fiscal year, a budget and business plan for the immediately succeeding fiscal year in the form approved by the Company's board of directors, in form, scope and detail satisfactory to the Purchasers and on a quarterly basis for each fiscal quarter of such succeeding fiscal year;
(g) promptly after the same become publicly available, (to the extent not available through electronic means) copies of all periodic and other reports, proxy statements and other materials filed by the Company or any Subsidiary with the SEC, or any Governmental Agency succeeding to any or all of the functions of the SEC, or with any national securities exchange, or distributed by the Company to its stockholders generally, as the case may be;
(h) promptly after the same are delivered to the members of the Board of Directors, copies of all business plans and other financial plans relating to the Company and/or its Subsidiaries; and
(ic) promptly following any request thereforreasonable access, such other information regarding to the operationsextent reasonably requested by the Investor Parties or the Investor Representative, business affairs to the offices and financial condition the properties of the Company and its Subsidiaries, including its and their books and records, and to discuss its and their affairs, finances and accounts and matters related to capital structure and financing with its and their officers, all upon reasonable notice and at such reasonable times and as often as the Investor Parties and the Investor Representative may reasonably request and the Company and its Subsidiaries shall consider in good faith any suggestions made by the Investor Parties with respect to the matters discussed, including with respect to the capital structure and financing of the Company and its Subsidiaries; provided that any investigation pursuant to this Section 5.15 shall be conducted in a manner as not to interfere unreasonably with the conduct of the business of the Company and its Subsidiaries; provided that the Company shall not be obligated to provide such access or materials if the Company determines, in its reasonable judgment, that doing so would reasonably be expected to (i) result in the disclosure of trade secrets or competitively sensitive information to third parties, (ii) violate applicable Law, an applicable Judgment or a Contract or obligation of confidentiality owing to a third party, (iii) jeopardize the protection of an attorney-client privilege, attorney work product protection or other legal privilege (provided, however, that the Company shall use reasonable efforts to provide alternative, redacted or substitute documents or information in a manner that would not result in the loss of the ability to assert attorney-client privilege, attorney work product protection or other legal privileges), or (iv) expose the Company to risk of liability for disclosure of personal information; provided that the parties shall use their commercially reasonable efforts to disclose such information in a manner that would not violate the foregoing. In addition, notwithstanding anything to the contrary contained herein, neither the Company nor any of its Subsidiaries will be required to provide any information or material that relates to, contains or reflects any analyses, studies, notes, memoranda and other information related to or prepared in connection with any Transaction Document or the Transactions or any Subsidiary, matters relating thereto or compliance any transactions with or matters relating to the terms Investor Parties or any Affiliates of the this Agreement or any Related Document, as the Purchasers may reasonably requestInvestor.
Appears in 1 contract
Sources: Investment Agreement (Coty Inc.)
Information Rights. The Group Companies covenant and agree, and each Information Rights Holder agrees with the Company, that, unless otherwise agreed between such Information Rights Holder and the Company, commencing on the date hereof, the Company shall furnish will deliver to each Purchaser who holds at least 5% Information Rights Holder:
(i) unaudited consolidated monthly financial statements in accordance with the PRC GAAP, US GAAP or IFRS and the key operating data of the Common Stock on a fully diluted as if converted basis Group Companies within twenty (and regardless to each of GE and Midwest if such Purchaser holds at least a majority of the Series B Shares such Purchaser purchased hereunder):
(a20) within 105 days after the end of each fiscal year (or, if required to be filed with the SEC sooner, then concurrently with such filing), its Form 10-K containing its audited consolidated balance sheet and related statements of income, stockholders' equity and cash flows as of the end of and for such year, setting forth in each case in comparative form the figures for the previous fiscal year, all reported on by PriceWaterhouseCoopers or other independent public accountants of recognized national standing (without any qualification or exception as to the scope of such audit) to the effect that such consolidated financial statements present fairly in all material respects the financial condition and results of operations of the Company and its consolidated Subsidiaries on a consolidated basis in accordance with GAAP consistently appliedmonth;
(bii) unaudited consolidated quarterly financial statements of the Group Companies within 105 forty-five (45) days after the end of each fiscal year (or, if required to be filed quarter in accordance with the SEC soonerPRC GAAP, then concurrently with such filing), its US GAAP or IFRS;
(iii) the annual consolidated balance sheets and related financial statements of incomethe Group Companies audited and certified by a reputable firm of independent certified public accountants of a national standing, stockholders' equity and cash flows including the balance sheet as of the end of such fiscal year and statements of income, shareholders’ equity, and cash-flow for such year, setting forth in each case in comparative form the figures for the previous fiscal year, all certified by within one of its Financial Officers as presenting fairly in all material respects the results of operations of the Company on a consolidated basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments hundred and the absence of footnotes;
twenty (c120) within 60 days after the end of each fiscal year, all prepared in accordance with the US GAAP or IFRS;
(iv) a copy of the first three fiscal quarters of each Group Companies’ Annual Business Plan for the following fiscal year duly approved by the Board, setting forth (or1) the projected balance sheets, if required to be filed with the SEC sooner, then concurrently with such filing), its Form 10-Q containing its consolidated balance sheet income statements and related statements of income, stockholders' equity and cash flows as of the end of and for such fiscal quarter and the then elapsed portion year of the fiscal yearCompany on a quarterly basis; (2) the projected budgets; and (3) all other material matters relating to the operation, setting forth in each case in comparative form the figures for the corresponding period or periods of (or, in the case development and business of the balance sheetGroup Companies, as at least thirty (30) days prior to the beginning of the end of) the previous each fiscal year;
(dv) the capitalization table of the Company, within 60 ten (10) days after the end of each calendar quarter, and the latest updated capitalization table within five (5) Business Days after any change to the capital structure of the first three fiscal quarters of each fiscal year, its consolidated balance sheet and related statements of income, stockholders' equity and cash flows as of the end of and for such fiscal quarter and the then elapsed portion of the fiscal year, setting forth in each case in comparative form the figures for the corresponding period or periods of (or, in the case of the balance sheet, as of the end of) the budget and previous fiscal year, all certified by one of its Financial Officers as presenting fairly in all material respects the results of operations of the Company on a consolidated basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments and the absence of footnotesCompany;
(evi) the key operating data of the Group Companies within 30 twenty (20) days after the end of each month which is neither a fiscal year end nor a fiscal quarter endmonth; and
(vii) promptly upon the written request by an Information Rights Holder but in any event within ten (10) days after the date of such written request, its consolidated balance sheet such other information relating to the financial condition and related statements of income, stockholders' equity and cash flows as the Principal Business of the end Group Companies as such holder shall reasonably request; provided, however, that the Company shall not be obligated under this Section 2.1(vii) to provide information (1) that the Board has reasonably determined in good faith is a trade secret or (2) the disclosure of which would prejudice the attorney-client privilege between the Group Companies and for such month and their counsel. The above rights as mentioned in Section 2.1 are collectively referred to as “Information Rights”. Each Information Rights Holder agrees with the then elapsed portion Company that without the prior consent of the fiscal yearCompany, setting forth such Information Rights Holder will not disclose any of the information it obtains from the Company or any Group Company under Section 2.1 to any third party other than to disclose (a) such information to (i) its accounting or tax advisor to comply with such Information Rights Holder’s financial statements preparation, tax returns preparation and reporting obligations pursuant to applicable regulatory requirements, and (ii) its Affiliates and its Affiliates’ directors, officers, employees, accountants, attorneys, auditors, investment advisors or other professionals (all such Persons described under (i) and (ii), the “Permitted Recipients”) on a need-to-know basis, provided that such Information Rights Holder shall cause its Permitted Recipients to be bound by confidentiality obligations, (b) such information if required by Applicable Laws or any Governmental Authority, (c) such information if it is or becomes generally available to the public other than as a result of disclosure by or at the direction of an Information Rights Holder or its Permitted Recipient in each case in comparative form the figures for the corresponding period or periods violation of this Agreement, (or, d) in the case of IFC and AMC Funds, such information solely for the balance sheet, as of the end of) the previous fiscal year, all certified by one of its Financial Officers as presenting fairly in all material respects the results of operations of the Company on a consolidated basis purposes and in accordance with GAAP consistently applied, subject the World Bank Group Access to normal year-end audit adjustments Information Policy so long as such disclosure does not relate to any confidential information in respect of any Information Rights Holder or the financial condition and the absence Principal Business of footnotes;
the Group Companies and (fe) by no later than December 15 of each fiscal year, a budget and business plan for the immediately succeeding fiscal year in the form approved by the Company's board case of directorsSVF, Permira, Farallon or ▇▇▇▇ ▇▇▇▇▇, such information to any limited partner that indirectly owns an interest in form, scope and detail satisfactory to the Purchasers and on a quarterly basis for each fiscal quarter of such succeeding fiscal year;
(g) promptly after the same become publicly available, (Party to the extent not available through electronic means) that such information is an overview of key strategic initiatives of the Group, a summary of business of the Group, an explanation of major updates of the Group, a description of successes and future plans and/or general status of such Party’s investment in the Group. Notwithstanding anything else in this Section 2.1 to the contrary, the Company shall provide IFC and AMC Funds copies of all periodic and other reportsnotices, proxy statements minutes, consents, and other materials filed by the Company or any Subsidiary with the SEC, or any Governmental Agency succeeding to any or all of the functions of the SEC, or with any national securities exchange, or distributed by the Company that it provides to its stockholders generally, as the case may be;
(h) promptly after Directors at the same are delivered time and in the same manner as provided to the members of the Board of such Directors, copies of all business plans and other financial plans relating to the Company and/or its Subsidiaries; and
(i) promptly following any request therefor, such other information regarding the operations, business affairs and financial condition of the Company or any Subsidiary, or compliance with the terms of the this Agreement or any Related Document, as the Purchasers may reasonably request.
Appears in 1 contract
Sources: Shareholder Agreement (Full Truck Alliance Co. Ltd.)
Information Rights. The Company shall Corporation will furnish to each Purchaser who holds Stockholder owning at least five percent (5% %) of the all issued and outstanding shares of Common Stock on a fully diluted as if converted basis (and regardless to each of GE and Midwest if such Purchaser holds at least a majority of the Series B Shares such Purchaser purchased hereunder):following information:
(a) within 105 As soon as available, but no later than the later of (i) ninety (90) days after following completion of each fiscal year and (ii) the applicable filing deadline under Securities Exchange Commission (the “SEC”) rules, the audited consolidated balance sheet of the Corporation and its Subsidiaries as at the end of each such fiscal year (or, if required to be filed with and the SEC sooner, then concurrently with such filing), its Form 10-K containing its audited consolidated balance sheet and related statements of income, stockholders' equity and cash flows as and changes in stockholders’ equity for such year of the end of Corporation and for such yearits Subsidiaries, setting forth in each case in comparative form the figures for the previous next preceding fiscal year, all reported on accompanied by PriceWaterhouseCoopers or other the report of independent certified public accountants of recognized national standing (without any qualification standing; provided that this requirement shall be deemed to have been satisfied if, on or exception as prior to such date, the scope of such audit) to Corporation files its annual report on Form 10-K for the effect that such consolidated financial statements present fairly in all material respects applicable fiscal year with the financial condition and results of operations of the Company and its consolidated Subsidiaries on a consolidated basis in accordance with GAAP consistently appliedSEC;
(b) within 105 As soon as available, but no later than the later of (i) forty-five (45) days following completion of each fiscal quarter (other than the fourth fiscal quarter) and (ii) the applicable filing deadlines under SEC rules, the consolidated balance sheet of the Corporation and its Subsidiaries as at the end of such quarter and the consolidated statements of income, cash flows and changes in stockholders’ equity for such quarter and the portion of the fiscal year then ended of the Corporation and its Subsidiaries, setting forth in each case the figures for the corresponding periods of the previous fiscal year in comparative form; provided that this requirement shall be deemed to have been satisfied if, on or prior to such date, the Corporation files its quarterly report on Form 10-Q for the applicable fiscal quarter with the SEC;
(c) Within ninety (90) days after the end of each fiscal year (or, if required to be filed with the SEC sooner, then concurrently with such filing), its consolidated balance sheets and related statements of income, stockholders' equity and cash flows as of the end of and for such year, setting forth in each case in comparative form such information that the figures Corporation then-has which is reasonably necessary for the previous fiscal yearpreparation of such Stockholder’s income tax returns (whether federal, all certified by one of its Financial Officers as presenting fairly in all material respects the results of operations of the Company on a consolidated basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments and the absence of footnotes;
(c) within 60 days after the end of each of the first three fiscal quarters of each fiscal year (or, if required to be filed with the SEC sooner, then concurrently with such filingstate or foreign), its Form 10-Q containing its consolidated balance sheet and related statements of income, stockholders' equity and cash flows as of the end of and for such fiscal quarter and the then elapsed portion of the fiscal year, setting forth in each case in comparative form the figures for the corresponding period or periods of (or, in the case of the balance sheet, as of the end of) the previous fiscal year;
(d) within 60 days after the end of each of the first three fiscal quarters of each fiscal yearReasonable access, its consolidated balance sheet and related statements of income, stockholders' equity and cash flows as of the end of and for such fiscal quarter and the then elapsed portion of the fiscal year, setting forth in each case in comparative form the figures for the corresponding period or periods of (or, in the case of the balance sheet, as of the end of) the budget and previous fiscal year, all certified by one of its Financial Officers as presenting fairly in all material respects the results of operations of the Company on a consolidated basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments and the absence of footnotes;
(e) within 30 days after the end of each month which is neither a fiscal year end nor a fiscal quarter end, its consolidated balance sheet and related statements of income, stockholders' equity and cash flows as of the end of and for such month and the then elapsed portion of the fiscal year, setting forth in each case in comparative form the figures for the corresponding period or periods of (or, in the case of the balance sheet, as of the end of) the previous fiscal year, all certified by one of its Financial Officers as presenting fairly in all material respects the results of operations of the Company on a consolidated basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments and the absence of footnotes;
(f) by no later than December 15 of each fiscal year, a budget and business plan for the immediately succeeding fiscal year in the form approved by the Company's board of directors, in form, scope and detail satisfactory to the Purchasers and on a quarterly basis for each fiscal quarter of such succeeding fiscal year;
(g) promptly after the same become publicly available, (to the extent not available through electronic means) copies of all periodic and other reports, proxy statements and other materials filed reasonably requested by the Company or Stockholder, to the offices and the properties of the Corporation and its Subsidiaries, including its and their books and records, and to discuss its and their affairs, finances and accounts with its and their officers, all upon reasonable notice and at such reasonable times and as often as the Stockholder may reasonably request; provided that any Subsidiary investigation pursuant to this Section 7(c) shall be conducted in a manner as not to interfere unreasonably with the SEC, or any Governmental Agency succeeding to any or all conduct of the functions business of the SEC, or with any national securities exchange, or distributed by the Company to its stockholders generally, as the case may be;
(h) promptly after the same are delivered to the members of the Board of Directors, copies of all business plans Corporation and other financial plans relating to the Company and/or its Subsidiaries; and
provided, that, in each case, the Corporation shall not be obligated to provide such access or materials if the Corporation determines, in its reasonable judgment, that doing so would reasonably be expected to (i) promptly following result in the disclosure of trade secrets or competitively sensitive information to third parties, (ii) violate applicable law or any request thereforcontractual or other obligation of confidentiality owing to a third party, (iii) jeopardize the protection of an attorney-client privilege, attorney work product protection or other legal privilege (provided, however, that the Corporation shall use reasonable efforts to provide alternative, redacted or substitute documents or information in a manner that would not result in the loss of the ability to assert attorney-client privilege, attorney work product protection or other legal privileges), or (iv) expose the Corporation to risk of liability for disclosure of personal information. In furtherance of the foregoing, each Stockholder agrees that it shall not (and shall cause its Subsidiaries not to) use or disclose any information or materials received pursuant to this Section 7 (or otherwise received from or in respect of the Corporation or its Subsidiaries or which is otherwise related to the Corporation’s or its Subsidiaries’ business) in a manner that would reasonably be expected to be adverse to the Corporation or its Subsidiaries or their respective businesses, except that the foregoing shall not in any way limit, restrict or supersede in any respect any waiver of corporate opportunity doctrine or similar provision in favor of any Stockholder in any of the Corporation’s Governing Documents (including the Charter) (and in the event of any conflict between any such provision and this sentence with respect to any Stockholder, such other information regarding the operations, business affairs and financial condition of the Company or any Subsidiary, or compliance with the terms of the this Agreement or any Related Document, as the Purchasers may reasonably requestprovision shall control).
Appears in 1 contract
Information Rights. The Company From and after the Effective Date, the JV shall furnish to each Purchaser who holds at least 5% of the Common Stock on a fully diluted as if converted basis (and regardless to each of GE and Midwest if such Purchaser holds at least a majority of the Series B Shares such Purchaser purchased hereunder):Limited Partner concurrently:
(a) within 105 No later than one hundred twenty (120) calendar days after the end of each fiscal year (orFiscal Year of the JV, if required to be filed with the SEC sooner, then concurrently with such filing), its Form 10-K containing its audited consolidated balance sheet and related statements of income, stockholders' equity and cash flows the JV as of the end of such Fiscal Year and the consolidated statements of income, cash flows and changes in the Limited Partners’ equity of the JV for such yearFiscal Year, setting forth forth, in each case case, in comparative form the figures for the previous fiscal yearimmediately preceding Fiscal Year and, all reported on in each case, accompanied by PriceWaterhouseCoopers or other an audit report of independent certified public accountants of recognized national standing (without any qualification or exception as to thereon, which accountants shall be selected by the scope of such audit) to the effect that such consolidated financial statements present fairly in all material respects the financial condition and results of operations of the Company and its consolidated Subsidiaries on a consolidated basis in accordance with GAAP consistently appliedLP Committee;
(b) within 105 No later than forty-five (45) calendar days after the end of each fiscal year Fiscal Quarter of the JV for the first three (or3) Fiscal Quarters of a Fiscal Year, if required to be filed with the SEC sooner, then concurrently with such filing), its consolidated balance sheets and related statements sheet of income, stockholders' equity and cash flows the JV as of the end of such Fiscal Quarter and the consolidated statements of income, cash flows and changes in the Limited Partners’ equity of the JV for such yearthe portion of the Fiscal Year then ended, setting forth in each the case in comparative form the figures for the previous fiscal year, all certified by one of its Financial Officers as presenting fairly in all material respects the results of operations of the Company on a consolidated basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments and the absence of footnotes;
(c) within 60 days after the end of each of the first three fiscal quarters of each fiscal year (or, if required to be filed with the SEC sooner, then concurrently with such filing), its Form 10-Q containing its consolidated balance sheet and related statements of income, stockholders' equity and cash flows as of and changes in the end of and for such fiscal quarter and the then elapsed portion of the fiscal year, setting forth in each case Limited Partners’ equity in comparative form the figures for the corresponding period or periods of (orthe previous Fiscal Year, and, in the case of the balance sheet, as of the end of) the previous fiscal year;
(d) within 60 days after the end of each of the first three fiscal quarters of each fiscal year, its consolidated such balance sheet and related statements of income, stockholders' equity and cash flows as of the end of and for such fiscal quarter and the then elapsed portion of the fiscal year, setting forth in each case in comparative form the figures for the corresponding period or periods of (or, in the case last day of the balance sheetprevious Fiscal Year, as and in each case, which shall not be required to include footnotes and shall not be required to be reviewed by the accountants; provided, however, that for Fiscal Quarters ending after the Closing and prior to the first Fiscal Quarter of 2027, the end ofinformation described in this Section 6.6(b) the budget and previous fiscal year, all certified by one of its Financial Officers as presenting fairly in all material respects the results of operations of the Company on a consolidated basis in accordance with GAAP consistently applied, subject to normal yearshall be delivered no later than seventy-end audit adjustments and the absence of footnotes;
five (e75) within 30 calendar days after the end of each month which is neither a fiscal year end nor a fiscal quarter end, its consolidated balance sheet and related statements of income, stockholders' equity and cash flows as of the end of and for such month and the then elapsed portion of the fiscal year, setting forth in each case in comparative form the figures for the corresponding period or periods of (or, in the case of the balance sheet, as of the end of) the previous fiscal year, all certified by one of its Financial Officers as presenting fairly in all material respects the results of operations of the Company on a consolidated basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments and the absence of footnotes;
(f) by no later than December 15 of each fiscal year, a budget and business plan for the immediately succeeding fiscal year in the form approved by the Company's board of directors, in form, scope and detail satisfactory to the Purchasers and on a quarterly basis for each fiscal quarter of such succeeding fiscal year;
(g) promptly after the same become publicly available, (to the extent not available through electronic means) copies of all periodic and other reports, proxy statements and other materials filed by the Company or any Subsidiary with the SEC, or any Governmental Agency succeeding to any or all of the functions of the SEC, or with any national securities exchange, or distributed by the Company to its stockholders generally, as the case may be;
(h) promptly after the same are delivered to the members of the Board of Directors, copies of all business plans and other financial plans relating to the Company and/or its SubsidiariesFiscal Quarter; and
(i) promptly following any Upon a Limited Partner’s reasonable request thereforand at such Limited Partner’s sole cost and expense, such additional information as shall be required in order for each Limited Partner and its Affiliates (including its and their direct or indirect owners, investors and lenders) to comply with any applicable reporting requirements and other information regarding obligations under (A) the operationsSecurities Act and the Exchange Act, business affairs (B) any national securities exchange or automated quotation system, or (C) any other Applicable Laws with respect to such Limited Partner or its Affiliates (including its and financial condition their direct or indirect owners, investors and lenders) and (ii) any reports expressly required to be delivered to the JV pursuant to any of the Company Main JV Agreements, concurrently with their delivery to the JV; and
(d) Concurrently with their delivery to the LP Committee, copies of all annual and other periodic business plans, operating budgets and other materials that are submitted to the LP Committee.
(e) Upon a Limited Partner’s reasonable request, the results of any audit conducted by the JV or any Subsidiary, or compliance with an independent auditor under the terms of the this Agreement or any Related Document, as the Purchasers may reasonably requestOperations and Maintenance Agreement.
Appears in 1 contract
Sources: Agreement of Limited Partnership (Keurig Dr Pepper Inc.)
Information Rights. The Company So long as Buyer from time to time maintains the Initial Buyer Percentage, complies with its obligations under Section 3.4 hereof and maintains the disclosed information in confidence as required in Rule 100(2)(ii) of Regulation FD, Issuer shall furnish deliver to each Purchaser who holds at least 5% of the Common Stock on a fully diluted as if converted basis (and regardless to each of GE and Midwest if such Purchaser holds at least a majority of the Series B Shares such Purchaser purchased hereunder):Buyer:
(a) as soon as practicable and, in any event, within 105 days thirty (30) Business Days (or such earlier date that the information is available to Issuer) after the end of each fiscal year month, (or, if required to be filed with i) the SEC sooner, then concurrently with such filing), its Form 10-K containing its audited unaudited consolidated balance sheet sheets of Issuer and related statements of income, stockholders' equity and cash flows its Subsidiaries as of the end of such month and the related unaudited statements of operations for such month and for such yearthe portion of the fiscal year then ended, setting forth in each case in comparative form and (ii) a written management report for Issuer and its Subsidiaries, which contains, without limitation, analyses of the figures for the previous fiscal year, all reported on by PriceWaterhouseCoopers or other independent public accountants of recognized national standing (without any qualification or exception as to the scope of such audit) to the effect that such consolidated financial statements present fairly in all material respects the financial condition and operating results of operations of the Company and its consolidated Subsidiaries Issuer on a consolidated basis basis, a comparison of actual performance for such month and year to date against the budget for such month and against the financial results for the corresponding month in accordance with GAAP consistently appliedthe preceding fiscal year;
(b) as soon as practicable and, in any event, within 105 forty-five (45) days after (or such earlier date that the end of each fiscal year (or, if required information is available to be filed with the SEC sooner, then concurrently with such filing), its consolidated balance sheets and related statements of income, stockholders' equity and cash flows as of the end of and for such year, setting forth in each case in comparative form the figures for the previous fiscal year, all certified by one of its Financial Officers as presenting fairly in all material respects the results of operations of the Company on a consolidated basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments and the absence of footnotes;
(cIssuer) within 60 days after the end of each of the first three fiscal quarters of each fiscal year quarters, (or, if required to be filed with i) the SEC sooner, then concurrently with such filing), its Form 10-Q containing its unaudited consolidated balance sheet and related sheets, statements of income, stockholders' ’ equity and comprehensive income and statements of cash flows of Issuer and its Subsidiaries as of the end of and for such fiscal quarter and the then elapsed related unaudited statements of operations for such quarter and for the portion of the fiscal yearyear then ended, setting forth in each case in comparative form and (ii) a written management report for Issuer and its Subsidiaries, which contains, without limitation, analyses of the figures operating results of Issuer on a consolidated basis, a comparison of actual performance for such quarter and year to date against the budget for such periods and against the financial results for the corresponding period or periods of in the preceding fiscal year; and
(orc) as soon as practicable and, in any event, within seventy-five (75) days (or such earlier date that the case of the balance sheet, as of the end ofinformation is available to Issuer) the previous fiscal year;
(d) within 60 days after the end of each of the first three fiscal quarters of each fiscal year, its (i) the audited consolidated balance sheet and related sheets, statements of income, stockholders' ’ equity and comprehensive income and statements of cash flows of Issuer and its Subsidiaries as of the end of such fiscal year and the related audited statements of operations for such fiscal quarter year, and the then elapsed portion (ii) a written management report for Issuer and its Subsidiaries, which contains, without limitation, analyses of the fiscal year, setting forth in each case in comparative form the figures for the corresponding period or periods of (or, in the case of the balance sheet, as of the end of) the budget and previous fiscal year, all certified by one of its Financial Officers as presenting fairly in all material respects the operating results of operations of the Company Issuer on a consolidated basis basis, a comparison of actual performance against the annual budget for such year and against financial results for the preceding fiscal year. For purposes of this Section 5, Buyer shall be deemed to have maintained the Initial Buyer Percentage if from time to time the Buyer Percentage is less than the Initial Buyer Percentage by less than 1%. Without limiting the generality of the foregoing, in no event shall Buyer be deemed to have failed to maintain the Initial Buyer Percentage if, with respect to any Dilutive Event that decreases the Buyer Percentage to below the Initial Buyer Percentage, Buyer has provided a written notice to Issuer of its desire to acquire Additional Shares in accordance with GAAP consistently applied, subject to normal year-end audit adjustments and the absence of footnotes;
(e) within 30 days after the end of each month which is neither a fiscal year end nor a fiscal quarter end, its consolidated balance sheet and related statements of income, stockholders' equity and cash flows as of the end of and for such month and the then elapsed portion of the fiscal year, setting forth in each case in comparative form the figures for the corresponding period or periods of (or, in the case of the balance sheet, as of the end of) the previous fiscal year, all certified by one of its Financial Officers as presenting fairly in all material respects the results of operations of the Company on a consolidated basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments and the absence of footnotes;
(f) by no later than December 15 of each fiscal year, a budget and business plan for the immediately succeeding fiscal year in the form approved by the Company's board of directors, in form, scope and detail satisfactory to the Purchasers and on a quarterly basis for each fiscal quarter of such succeeding fiscal year;
(g) promptly after the same become publicly available, (to the extent not available through electronic means) copies of all periodic and other reports, proxy statements and other materials filed by the Company or any Subsidiary with the SEC, or any Governmental Agency succeeding to any or all of the functions of the SEC, or with any national securities exchange, or distributed by the Company to its stockholders generally, as the case may be;
(h) promptly after the same are delivered to the members of the Board of Directors, copies of all business plans and other financial plans relating to the Company and/or its Subsidiaries; and
(i) promptly following any request therefor, such other information regarding the operations, business affairs and financial condition of the Company or any Subsidiary, or compliance with the terms of the this Agreement or any Related Document, as the Purchasers may reasonably requestSection 2.4(b).
Appears in 1 contract
Sources: Investor's Rights and Standstill Agreement (China Minsheng Banking Corp., Ltd.)
Information Rights. The Company So long as the Wafra Management Subscribers collectively own any Ownership Interests, DCMH shall furnish provide or make available to each Purchaser who holds at least 5% of the Common Stock on a fully diluted as if converted basis (and regardless to each of GE and Midwest if such Purchaser holds at least a majority of Wafra Representative the Series B Shares such Purchaser purchased hereunder):following:
(a) as soon as practicable, and in any event within 105 one-hundred twenty (120) days after following the end of each fiscal year (orFiscal Year, if required to be filed beginning with the SEC soonerend of the Fiscal Year ending December 31, then concurrently with 2020, the (i) consolidated audited financial statements of the Digital Colony Management Parties for such filing)Fiscal Year, its Form 10-K containing its audited consolidated including a balance sheet and related statements of income, stockholders' equity and cash flows as of the end of such Fiscal Year and the related statements of operations, changes in member’s equity (deficit) and cash flows for such yearFiscal Year, setting forth in each case in comparative form the figures for the previous fiscal year, all reported on by PriceWaterhouseCoopers or other independent public accountants of recognized national standing (without any qualification or exception as to the scope of such audit) to the effect that such consolidated financial statements present fairly in all material respects the financial condition and results of operations of the Company and its consolidated Subsidiaries on a consolidated basis prepared in accordance with GAAP consistently appliedand certified by DCMH’s independent public accountants (which shall be a firm of nationally recognized independent accountants), consisting of statements of (x) the financial condition of the Digital Colony Management Parties and (y) income, cash flows and changes in members’ capital for such Fiscal Year, and (ii) the audited financial statements of the Digital Colony Funds, if any, including a balance sheet as of the end of such Fiscal Year and the related statements of operations, changes in member’s equity (deficit) and cash flows for such Fiscal Year, prepared in accordance with GAAP, and certified by the Digital Colony Funds’ independent public accountants (which shall be a firm of nationally recognized independent accountants);
(b) as soon as practicable, and in any event within 105 sixty (60) days after the end of each fiscal year (or, if required to be filed with the SEC sooner, then concurrently with such filing), its consolidated balance sheets and related statements of income, stockholders' equity and cash flows as of the end of and for such year, setting forth in each case in comparative form the figures for the previous fiscal year, all certified by one of its Financial Officers as presenting fairly in all material respects the results of operations of the Company on a consolidated basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments and the absence of footnotes;
(c) within 60 days after following the end of each of the first three fiscal quarters of each Fiscal Year of the Digital Colony Management Parties, (i) the consolidated unaudited financial statements of the Digital Colony Management Parties for such fiscal year (orquarter, if required to be filed prepared in accordance with the SEC soonerGAAP, then concurrently with such filing), its Form 10-Q containing its consolidated including a balance sheet and related statements of income, stockholders' equity and cash flows as of the end of such fiscal quarter and the related statements of operations, changes in member’s equity (deficit) and cash flows for such fiscal quarter and the then elapsed portion of the fiscal year, setting forth in each case in comparative form the figures for the corresponding period or periods of (or, in the case of the balance sheet, as of the end ofii) the previous fiscal year;
(d) within 60 days after the end unaudited financial statements of each of the first three Digital Colony Fund for such fiscal quarters of each fiscal yearquarter, its consolidated prepared in accordance with GAAP, including a balance sheet and related statements of income, stockholders' equity and cash flows as of the end of and for such fiscal quarter and the then elapsed portion related statements of the operations, changes in member’s equity (deficit) and cash flows for such fiscal yearquarter, setting forth in each case in comparative form the figures for the corresponding period or periods of (or, in the case of the balance sheet, as of the end of) the budget and previous fiscal year, all certified by one of its Financial Officers as presenting fairly in all material respects the results of operations of the Company on a consolidated basis prepared in accordance with GAAP consistently appliedGAAP;
(c) on a quarterly basis, subject a summary describing, in reasonable detail, any Related Party Transactions that were entered into, modified or terminated in each such quarter and a true and correct list of each Person who has the right to normal year-end audit adjustments and receive Carried Interest from any Digital Colony Fund, together with the absence amount and/or percentage of footnotessuch Carried Interest owned by each such Person, to the extent of any changes from the prior quarter; LA_LAN01:362977.13
(d) on a quarterly basis, a copy of the standard reporting package (including financial statements) made available to the investors in any Digital Colony Fund, at substantially the same time such package is generally distributed to such investors;
(e) within 30 days after the end of each month which is neither a fiscal year end nor a fiscal quarter end, its consolidated balance sheet and related statements of income, stockholders' equity and cash flows as of the end of and for such month and the then elapsed portion of the fiscal year, setting forth in each case in comparative form the figures for the corresponding period or periods of (or, in the case of the balance sheet, as of the end of) the previous fiscal year, all certified by one of its Financial Officers as presenting fairly in all material respects the results of operations of the Company on a consolidated basis in accordance with GAAP consistently appliedquarterly basis, subject copies of investor letters and reports regarding Digital Colony Funds made generally available to normal year-end audit adjustments investors, at substantially the same time such letters and the absence of footnotesreports are distributed to such investors;
(f) by no later than December 15 of each fiscal yearon a quarterly basis, a budget determination of the Available Cash of DCMH (including NFRE and business plan for Balance Sheet Management Proceeds and any calculations thereof or adjustments thereto, together with reasonable supporting detail with respect to such calculations), and such other information as may be reasonably requested by the immediately succeeding fiscal year Wafra Representative, in the form approved by the Company's board of directors, in form, scope and detail satisfactory to the Purchasers and on a quarterly basis for each fiscal quarter of such succeeding fiscal yearattached hereto as Exhibit C;
(g) promptly after no later than thirty (30) days following the same become publicly availableend of each Fiscal Year, (the Digital Colony Management Parties’ operating budget and business plan prepared with respect to the extent not available through electronic means) copies business of all periodic and other reports, proxy statements and other materials filed by managing the Company or any Subsidiary with the SEC, or any Governmental Agency succeeding to any or all of the functions of the SEC, or with any national securities exchange, or distributed by the Company to its stockholders generally, as the case may beDigital Colony Funds;
(h) promptly no later than thirty (30) days following the end of each Fiscal Year, the Digital Colony Management Parties’ good faith estimate of projected exit proceeds from each portfolio investment;
(i) to the extent not restricted by Law, notice as soon as reasonably practicable if the Digital Colony Companies or any Digital Colony Fund receives a non-routine letter from any U.S. or non-U.S. securities regulatory body, including the SEC, describing its findings from an examination conducted by such regulator that identifies any material deficiencies;
(j) prompt written notice (and in any event not later than five (5) Business Days) after becoming aware of any action or proceeding or receiving notice of any investigation pending before any court or Governmental Authority, including, without limitation, the same are delivered SEC or any state securities regulatory authority against the Digital Colony Companies or any of their Controlled Affiliates or senior officers of the Digital Colony Companies that claim or allege (x) any violation of any federal or state securities law, rule or regulation, or (y) any breach of fiduciary duties, in each case that would reasonably be expected to have an adverse effect on the Digital Colony Companies or any of the Digital Colony Funds;
(k) prompt notice of any other material issues that might arise in the Digital Colony Business from time to time, including any action or proceeding or receiving formal written notice of any investigation commenced against any partner of the Digital Colony Companies or any of their employees, directors, officers or partners or any Managing Director or Successor, and any other litigation with respect to any partner of the Digital Colony Companies or any of its employees, directors, officers or partners or any Managing Director or Successor, in each case that may reasonably be expected to have a material adverse effect on the Digital Colony Companies or any of the Digital Colony Funds;
(l) copies of all materials prepared for the advisory committee of each Digital Colony Fund in which the Wafra Management Subscribers or other Wafra Entity directly or indirectly LA_LAN01:362977.13 is an investor, including, for the avoidance of doubt, any Digital Colony Fund in which any Wafra Entity is making, directly or indirectly, any Sponsor Commitment, contemporaneously with the distribution of such materials to the members of the Board of Directors, such advisory committee;
(m) copies of all business plans any material legal, operating, compliance, gift, entertainment and other financial plans policies and procedures of the Digital Colony Companies, including any material amendments relating thereto;
(n) information reasonably requested by the Wafra Representative in connection with any Wafra Consent, approval or other action required to be taken by the Wafra Representative or any other Wafra Entity under this Agreement or the Ancillary Agreements, including information reasonably necessary to confirm compliance with the obligations set forth herein or therein;
(o) as reasonably requested by the Wafra Representative, valuation materials regarding the reported net asset value of any of the Digital Colony Funds but only to the Company and/or extent readily available;
(p) to the extent reasonably practicable, position level information regarding any Digital Colony Fund (and underlying portfolio investments) in which the Wafra Management Subscriber or other Wafra Entity is directly or indirectly an investor, including, for the avoidance of doubt, any Digital Colony Fund in which any Wafra Entity is making, directly or indirectly, any Sponsor Commitment, to the extent such position level information is reasonably requested to assist the Wafra Management Subscribers or any of their Affiliates in the monitoring and valuation of the Wafra Entities’ Interests other than material non-public information (unless it is legally permissible to be so provided) with respect to any securities traded on a national securities exchange;
(q) calculations provided to any lender in connection with the covenants in, and any reports delivered to any lender in accordance with, any credit agreements or credit facility of the Digital Colony Companies;
(r) as reasonably requested by the Wafra Representative, all Fund Documentation for the Digital Colony Funds and side letters pertaining thereto (in each case, including any amendments or changes thereto), except for redacted information to the extent required to comply with applicable confidentiality requirements set forth therein;
(s) upon the reasonable request of the Wafra Representative and to the extent reasonably practicable, such additional information regarding the status of the Digital Colony Business and its Subsidiariesfinancial performance, the performance of each Digital Colony Management Party’s investment products, and legal, regulatory and compliance matters; and
(t) without limitation of the information and reports described in this Section 5.2, promptly upon request of the Wafra Representative, the Digital Colony Management Parties will provide the Wafra Representative with (i) promptly following copies of all materials provided generally to investors in the Digital Colony Funds and other investment products, including, for example, investment LA_LAN01:362977.13 letters and client and risk reports and (ii) any request therefor, such other information regarding the operations, business affairs and financial condition of the Company or any Subsidiary, or reasonably necessary to confirm compliance with the terms of the obligations set forth in this Agreement or any Related Document, as and the Purchasers may reasonably requestother Ancillary Agreements.
Appears in 1 contract
Information Rights. The Following the Closing, the Company shall furnish agrees to provide each Purchaser who holds at least 5% of the Common Stock on a fully diluted as Investor Entities with the following, if converted basis (and regardless to each of GE and Midwest if such Purchaser holds at least a majority of the Series B Shares such Purchaser purchased hereunder):extent requested by the Investor Entities:
(a) within 105 ninety (90) days after the end of each fiscal year of the Company, (orA) an audited, if required to be filed with the SEC sooner, then concurrently with such filing), its Form 10-K containing its audited consolidated balance sheet of the Company and related statements of income, stockholders' equity and cash flows its Subsidiaries as of the end of and for such year, setting forth in each case in comparative form the figures for the previous fiscal year, all reported on by PriceWaterhouseCoopers or other independent public accountants (B) an audited, consolidated statements of recognized national standing (without any qualification or exception as to the scope of such audit) to the effect that such consolidated financial statements present fairly in all material respects the financial condition and results of operations income of the Company and its Subsidiaries for such fiscal year and (C) an audited, consolidated statements of cash flows of the Company and its Subsidiaries for such fiscal year; provided that this requirement shall be deemed to have been satisfied if on a consolidated basis in accordance or prior to such date the Company files its annual report on Form 10-K for the applicable fiscal year with GAAP consistently appliedthe SEC;
(b) within 105 days after the end of each fiscal year forty-five (or, if required to be filed with the SEC sooner, then concurrently with such filing), its consolidated balance sheets and related statements of income, stockholders' equity and cash flows as of the end of and for such year, setting forth in each case in comparative form the figures for the previous fiscal year, all certified by one of its Financial Officers as presenting fairly in all material respects the results of operations of the Company on a consolidated basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments and the absence of footnotes;
(c45) within 60 days after the end of each of the first three fiscal quarters of each fiscal year of the Company, (orA) an unaudited, if required to be filed with the SEC sooner, then concurrently with such filing), its Form 10-Q containing its consolidated balance sheet of the Company and related statements of income, stockholders' equity and cash flows its Subsidiaries as of the end of such fiscal quarter, (B) an unaudited, consolidated statements of income of the Company and its Subsidiaries for such fiscal quarter and the then elapsed portion (C) an unaudited, consolidated statement of cash flows of the Company and its Subsidiaries for such fiscal year, setting forth in each case in comparative form quarter; provided that this requirement shall be deemed to have been satisfied if on or prior to such date the figures Company files its quarterly report on Form 10-Q for the corresponding period applicable fiscal year with the SEC;
(c) on or periods before January 31 of each calendar year (or, in if such date is not a Business Day, the case next Business Day), a properly completed IRS Form 1099-DIV (or a substitute statement) with respect to all distributions made on the Series A Preferred Stock held by such Investor Entity during the immediately preceding calendar year; provided that, (A) each such statement shall comply with Section 6042 of the balance sheetInternal Revenue Code of 1986, as amended (the “Code”), and the Treasury Regulations promulgated thereunder, together with applicable IRS guidance, and shall clearly report the characterization of the end ofsuch distributions, including whether any portion is reported as a non-dividend distribution, and (B) the previous fiscal Company shall promptly furnish a corrected Form 1099-DIV or substitute statement upon discovery of any error and, upon reasonable request, shall provide a supplemental statement reasonably detailing the amount of any non-dividend distributions for the year;
(d) within 60 days after such additional financial and other information as may reasonably be requested by the end of each of Investor Entities, at such times and in such manner as is consistent with the first three fiscal quarters of each fiscal year, its consolidated balance sheet and related statements of income, stockholders' equity and cash flows as of Company’s historical practice; provided that this requirement shall be deemed to have been satisfied to the end of and for such fiscal quarter and the then elapsed portion of the fiscal year, setting forth in each case in comparative form the figures for the corresponding period or periods of (or, in the case of the balance sheet, as of the end of) the budget and previous fiscal year, all certified by one of its Financial Officers as presenting fairly in all material respects the results of operations of extent the Company on has filed such information with the SEC or issued a consolidated basis in accordance press release with GAAP consistently applied, subject to normal year-end audit adjustments and the absence of footnotes;such information; and
(e) within 30 days after reasonable access, to the end of each month which is neither extent reasonably requested by the Investor Entities, to the Company’s books and records, and to the Company’s officers to discuss the Company’s affairs, finances and accounts with its officers, all upon reasonable notice and at such reasonable times as the Investor Entities may reasonably request; provided that any investigation pursuant to this Section 4.5 shall be conducted in a fiscal year end nor a fiscal quarter end, its consolidated balance sheet and related statements of income, stockholders' equity and cash flows manner as not to interfere with the conduct of the end of and for such month and the then elapsed portion of the fiscal year, setting forth in each case in comparative form the figures for the corresponding period or periods of (or, in the case of the balance sheet, as of the end of) the previous fiscal year, all certified by one of its Financial Officers as presenting fairly in all material respects the results of operations business of the Company on a consolidated basis and its Subsidiaries; provided, further that the Company shall not be obligated to provide such access or materials as described in accordance with GAAP consistently appliedthis Section 4.5 if the Company determines, subject in its reasonable judgment, that doing so would reasonably be expected to normal year-end audit adjustments and the absence of footnotes;
(fi) by no later than December 15 of each fiscal year, a budget and business plan for the immediately succeeding fiscal year result in the form approved by disclosure of competitively sensitive information to third parties (other than the Company's board of directors, in form, scope and detail satisfactory to the Purchasers and on a quarterly basis for each fiscal quarter of such succeeding fiscal year;
(g) promptly after the same become publicly availableInvestor Entities), (ii) violate applicable Law, an applicable Judgment or a Contract or obligation of confidentiality owed to a third party, (iii) jeopardize the extent not available through electronic means) copies protection of all periodic and an attorney-client privilege, attorney work product protection or other reports, proxy statements and other materials filed by the Company or any Subsidiary with the SEClegal privilege, or any Governmental Agency succeeding to any or all of the functions of the SEC, or with any national securities exchange, or distributed by (iv) expose the Company to its stockholders generallyrisk of liability for disclosure of personal information. In addition, as the case may be;
(h) promptly after the same are delivered notwithstanding anything to the members contrary contained herein, neither the Company nor any of the Board of Directorsits Subsidiaries will be required to provide any information or material that relates to, copies of all business plans contains or reflects any analyses, studies, notes, memoranda and other financial plans information related to or prepared in connection with any Transaction Document or any matters relating thereto or any transactions with or matters relating to the Company and/or its Subsidiaries; and
(i) promptly following Investor Entities or any request thereforof their Affiliates. The rights set forth in this Section 4.5 are personal to the Investor and may not be assigned or transferred, such other information regarding the operations, business affairs and financial condition including to any transferee of the Company or any Subsidiary, or compliance with Series A Preferred Stock without the terms consent of the this Agreement or any Related Document, as the Purchasers may reasonably requestCompany.
Appears in 1 contract
Sources: Investment Agreement (Finance of America Companies Inc.)
Information Rights. The Company shall furnish covenants and agrees to each Purchaser who holds at least 5% of provide the Common Stock following information to the ODX Offices on a fully diluted as if converted basis (and regardless to each of GE and Midwest if such Purchaser holds at least a majority of the Series B Shares such Purchaser purchased hereunder):an ongoing basis:
(a) as soon as practicable, but in any event within 105 120 days after the end of each fiscal year of the Company (or, if required to be filed with the SEC sooner, then concurrently with such filing), its Form 10-K containing its audited consolidated x) an unaudited balance sheet and related statements of income, stockholders' equity and cash flows as of the end of and for such year, setting forth in each case in comparative form (y) unaudited statements of income and of cash flows for such year and (z) an unaudited statement of stockholders' equity as of the figures for the previous fiscal end of such year, all reported on by PriceWaterhouseCoopers or other independent public accountants of recognized national standing (without any qualification or exception as to the scope of such audit) to the effect that such consolidated financial statements present fairly in all material respects the financial condition and results of operations of the Company and its consolidated Subsidiaries on a consolidated basis materially prepared in accordance with GAAP consistently appliedGAAP; provided, however, that if audited versions of any of the foregoing are available, the Company shall deliver those instead;
(b) as soon as practicable, but in any event within 105 days after the end of each fiscal year (or, if required to be filed with the SEC sooner, then concurrently with such filing), its consolidated balance sheets and related statements of income, stockholders' equity and cash flows as of the end of and for such year, setting forth in each case in comparative form the figures for the previous fiscal year, all certified by one of its Financial Officers as presenting fairly in all material respects the results of operations of the Company on a consolidated basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments and the absence of footnotes;
(c) within 60 45 days after the end of each of the first three fiscal quarters of each fiscal year (orof the Company, if required to be filed with the SEC soonerunaudited statements of income and cash flows for such fiscal quarter, then concurrently with such filing), its Form 10-Q containing its consolidated and an unaudited balance sheet and related statements a statement of income, stockholders' equity and cash flows as of the end of and for such fiscal quarter quarter, all prepared materially in accordance with GAAP.
(c) as soon as practicable following request by ODX, 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 then elapsed portion exchange ratio or exercise price applicable thereto, and the number of the fiscal yearshares of issued stock options and stock options not yet issued but reserved for issuance, setting forth if any, all in each case in comparative form the figures for the corresponding period or periods of (or, sufficient detail as to permit ODX to calculate its percentage equity ownership in the case of the balance sheet, as of the end of) the previous fiscal yearCompany;
(d) within 60 days after as soon as practicable following the end issuance of each of the first three fiscal quarters of each fiscal yearany Convertible Securities, its consolidated balance sheet information regarding such Convertible Securities, including, at a minimum, dollar amounts invested, "target" valuations, discounts, pro rata rights and related statements of income, stockholders' equity and cash flows as of the end of and for such fiscal quarter and the then elapsed portion of the fiscal year, setting forth in each case in comparative form the figures for the corresponding period or periods of (or, in the case of the balance sheet, as of the end of) the budget and previous fiscal year, all certified by one of its Financial Officers as presenting fairly in all material respects the results of operations of the Company on a consolidated basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments and the absence of footnotes;any other substantive terms; and
(e) within 30 days after the end of each month which any other information that ODX reasonably requests that is neither a fiscal year end nor a fiscal quarter end, necessary for ODX to value its consolidated balance sheet and related statements of income, stockholders' equity and cash flows as of the end of and for such month and the then elapsed portion of the fiscal year, setting forth in each case in comparative form the figures for the corresponding period or periods of (or, investment in the case of the balance sheetCompany, as of the end ofincluding but not limited to information (including valuation) the previous fiscal year, all certified by one of its Financial Officers as presenting fairly in all material respects the results of operations of the Company on a consolidated basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments and the absence of footnotes;
(f) by no later than December 15 of each fiscal year, a budget and business plan for the immediately succeeding fiscal year in the form approved by regarding the Company's board of directors, in form, scope and detail satisfactory to the Purchasers and on a quarterly basis for each fiscal quarter of such succeeding fiscal year;
(g) promptly after the same become publicly available, (to the extent not available through electronic means) copies of all periodic and other reports, proxy statements and other materials filed by the Company or any Subsidiary with the SEC, or any Governmental Agency succeeding to any or all of the functions of the SEC, or with any national securities exchange, or distributed by the Company to its stockholders generally, as the case may be;
(h) promptly after the same are delivered to the members of the Board of Directors, copies of all business plans and other financial plans relating to the Company and/or its Subsidiaries; and
(i) promptly following any request therefor, such other information regarding the operations, business affairs and financial condition of the Company or any Subsidiary, or compliance with the terms of the this Agreement or any Related Document, as the Purchasers may reasonably requestfundraising activity.
Appears in 1 contract
Sources: Participation Agreement
Information Rights. The Company Maker shall furnish deliver to each Purchaser who holds at least 5% of the Common Stock on a fully diluted as if converted basis (and regardless to each of GE and Midwest if such Purchaser holds at least a majority of the Series B Shares such Purchaser purchased hereunder):Holder:
(a) as soon as available, but in any event within 105 120 days after the end of each fiscal year of the Maker (or, if required to be filed commencing with the SEC soonerfiscal year ended December 31, then concurrently with such filing2024), its Form 10-K containing its audited a consolidated balance sheet of the Maker and its Subsidiaries as at the end of such fiscal year, and the related consolidated statements of incomeincome or operations, stockholders' equity changes in shareholders’ equity, and cash flows as of the end of and for such fiscal year, setting forth in each case in comparative form the figures for the previous fiscal year, commencing with the first fiscal year for which such corresponding figures are available, all reported on in reasonable detail and prepared in accordance with GAAP, such consolidated statements to be audited and accompanied by PriceWaterhouseCoopers a report and opinion of an independent certified public accountant of nationally recognized standing reasonably acceptable to the Holder, which report and opinion shall be prepared in accordance with generally accepted auditing standards and shall not be subject to any “going concern” or other independent public accountants of recognized national standing (without like qualification or exception or any qualification or exception as to the scope of such audit) to the effect that such consolidated financial statements present fairly in all material respects the financial condition and results of operations of the Company and its consolidated Subsidiaries on a consolidated basis in accordance with GAAP consistently applied;.
(b) as soon as available, but in any event within 105 days after the end of each fiscal year (or, if required to be filed with the SEC sooner, then concurrently with such filing), its consolidated balance sheets and related statements of income, stockholders' equity and cash flows as of the end of and for such year, setting forth in each case in comparative form the figures for the previous fiscal year, all certified by one of its Financial Officers as presenting fairly in all material respects the results of operations of the Company on a consolidated basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments and the absence of footnotes;
(c) within 60 90 days after the end of each of the first three fiscal quarters of each fiscal year of the Maker (or, if required to be filed commencing with the SEC soonerfiscal quarter ended September 30, then concurrently with such filing2024), its Form 10-Q containing its a consolidated balance sheet of the Maker and its Subsidiaries as at the end of such fiscal quarter, and the related consolidated statements of incomeincome or operations, stockholders' equity changes in shareholders’ equity, and cash flows as of for the end of and for such fiscal quarter and the then elapsed portion of the Maker’s fiscal yearyear then ended, setting forth in each case in comparative form the figures for the corresponding period or periods portion of (or, in the case of the balance sheet, as of the end of) the previous fiscal year;
(d) within 60 days after , commencing with the end of each first fiscal quarter for which such corresponding figures are available, all in reasonable detail, such consolidated statements to be certified by an appropriate officer of the first three fiscal quarters Maker as fairly presenting, in all material respects, the financial condition, results of each fiscal yearoperations, its consolidated balance sheet and related statements of income, stockholders' shareholders’ equity and cash flows as of the end of Maker and for such fiscal quarter and the then elapsed portion of the fiscal year, setting forth in each case in comparative form the figures for the corresponding period or periods of (or, in the case of the balance sheet, as of the end of) the budget and previous fiscal year, all certified by one of its Financial Officers as presenting fairly in all material respects the results of operations of the Company on a consolidated basis Subsidiaries in accordance with GAAP consistently appliedGAAP, subject only to normal year-end audit adjustments and the absence of footnotes;.
(ec) as soon as available, but in any event within 30 days after the end of each fiscal month which is neither a fiscal year end nor a fiscal quarter end, its consolidated balance sheet and related statements of income, stockholders' equity and cash flows as of the end of and for such month and the then elapsed portion of the fiscal year, setting forth in each case in comparative form the figures for the corresponding period or periods of (or, in the case of the balance sheet, as of the end of) the previous fiscal year, all certified by one of its Financial Officers as presenting fairly in all material respects the results of operations of the Company on a consolidated basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments and the absence of footnotes;
(f) by no later than December 15 of each fiscal year, a budget and business plan for year of the immediately succeeding fiscal year in the form approved by the Company's board of directors, in form, scope and detail satisfactory to the Purchasers and on a quarterly basis for each fiscal quarter of such succeeding fiscal year;
Maker (g) promptly after the same become publicly available, (to the extent not available through electronic means) copies of all periodic and other reports, proxy statements and other materials filed by the Company or any Subsidiary commencing with the SECfiscal month ended August 31, or any Governmental Agency succeeding to any or all 2024), revenue statements of the functions of the SEC, or with any national securities exchange, or distributed by the Company to its stockholders generally, as the case may be;
(h) promptly after the same are delivered to the members of the Board of Directors, copies of all business plans Maker and other financial plans relating to the Company and/or its Subsidiaries; and
(i) promptly following any request therefor, such other information regarding the operations, business affairs and financial condition of the Company or any Subsidiary, or compliance with the terms of the this Agreement or any Related Document, as the Purchasers may reasonably request.
Appears in 1 contract
Sources: Note (Gse Systems Inc)
Information Rights. The Company shall furnish to each Purchaser who holds at least 5% of the Common Stock on a fully diluted as if converted basis (and regardless to each of GE and Midwest if such Purchaser holds at least a majority of the Series B Shares such Purchaser purchased hereunder):
(a) Until ninety (90) days after the date of this Agreement, the Buyer will use its best efforts to share all income statements, cash flow statements and balance sheets prepared for internal purposes for use in the Business with the Seller. Thereafter, and until the Post Closing Payment has been paid to the Seller in full: (i) within 105 fifteen (15) days after the end of each calendar month after the Closing, the Buyer shall prepare and deliver to the Seller an unaudited income statement and statement of cash flows for such month and an unaudited balance sheet as of the end of such month; (ii) within forty-five (45) days after the end of each fiscal quarter after the Closing, the Buyer shall prepare and deliver to the Seller an unaudited income statement and statement of cash flows for such quarter and an unaudited balance sheet as of the end of such quarter; and (iii) within ninety (90) days after the end of each fiscal year (orafter the Closing, if required the Buyer shall prepare and deliver to be filed with the SEC sooner, then concurrently with such filing), its Form 10-K containing its Seller audited consolidated balance sheet and related financial statements of income, stockholders' equity and cash flows as of the end of and Buyer for such year, setting forth prepared in each case in comparative form the figures for the previous fiscal year, all reported on accordance with generally accepted accounting principles and certified by PriceWaterhouseCoopers or other independent public accountants selected by the Buyer's Board of recognized national standing (without any qualification or exception as to the scope of such audit) to the effect that such consolidated financial statements present fairly in all material respects the financial condition and results of operations of the Company and its consolidated Subsidiaries on a consolidated basis in accordance with GAAP consistently applied;Directors.
(b) within 105 days after Until the end of Post Closing Payment has been paid to the Seller in full, but not more frequently than once during each fiscal year (orquarter, if required the Buyer shall permit the Seller to visit and inspect the Buyer's properties, to examine its books of account and records and to discuss the Buyer's affairs, finances and accounts with its officers, all at such reasonable times as may be filed reasonably requested by the Seller. In connection with this right, the Seller agrees to hold in confidence and trust and not use or disclose any confidential information provided to or learned by it in connection with the SEC sooner, then concurrently with such filingrights granted in this Section 5.8(b), its consolidated balance sheets and related statements of income, stockholders' equity and cash flows as of the end of and for such year, setting forth in each case in comparative form the figures for the previous fiscal year, all certified by one of its Financial Officers as presenting fairly in all material respects the results of operations of the Company on a consolidated basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments and the absence of footnotes;
(c) within 60 days after the end of each of the first three fiscal quarters of each fiscal year (or, if required to be filed with the SEC sooner, then concurrently with such filing), its Form 10-Q containing its consolidated balance sheet and related statements of income, stockholders' equity and cash flows as of the end of and for such fiscal quarter and the then elapsed portion of the fiscal year, setting forth in each case in comparative form the figures for the corresponding period or periods of (or, in the case of the balance sheet, as of the end of) the previous fiscal year;
(d) within 60 days after the end of each of the first three fiscal quarters of each fiscal year, its consolidated balance sheet and related statements of income, stockholders' equity and cash flows as of the end of and for such fiscal quarter and the then elapsed portion of the fiscal year, setting forth in each case in comparative form the figures for the corresponding period or periods of (or, in the case of the balance sheet, as of the end of) the budget and previous fiscal year, all certified by one of its Financial Officers as presenting fairly in all material respects the results of operations of the Company on a consolidated basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments and the absence of footnotes;
(e) within 30 days after the end of each month which is neither a fiscal year end nor a fiscal quarter end, its consolidated balance sheet and related statements of income, stockholders' equity and cash flows as of the end of and for such month and the then elapsed portion of the fiscal year, setting forth in each case in comparative form the figures for the corresponding period or periods of (or, in the case of the balance sheet, as of the end of) the previous fiscal year, all certified by one of its Financial Officers as presenting fairly in all material respects the results of operations of the Company on a consolidated basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments and the absence of footnotes;
(f) by no later than December 15 of each fiscal year, a budget and business plan for the immediately succeeding fiscal year in the form approved by the Company's board of directors, in form, scope and detail satisfactory to the Purchasers and on a quarterly basis for each fiscal quarter of such succeeding fiscal year;
(g) promptly after the same become publicly available, (to the extent not available through electronic means) copies of all periodic and other reports, proxy statements and other materials filed by the Company or any Subsidiary with the SEC, or any Governmental Agency succeeding to any or all of the functions of the SEC, or with any national securities exchange, or distributed by the Company to its stockholders generally, as the case may be;
(h) promptly after the same are delivered to the members of the Board of Directors, copies of all business plans and other financial plans relating to the Company and/or its Subsidiaries; and
(i) promptly following any request therefor, such other information regarding the operations, business affairs and financial condition of the Company or any Subsidiary, or compliance with the terms of the this Agreement or any Related Document, as the Purchasers may reasonably request.. --------------
Appears in 1 contract
Sources: Purchase Agreement (Liveworld Inc)
Information Rights. The Company shall furnish Following the Initial Closing and so long as the 25% Beneficial Ownership Requirement is satisfied, in order to each Purchaser who holds at least 5% facilitate (i) the Investor Parties’ compliance with legal and regulatory requirements applicable to the beneficial ownership by the Investor Parties and its Affiliates of equity securities of the Common Stock on a fully diluted as if converted basis Company and (and regardless ii) the Investor Representative’s oversight of the Investor Parties’ investment in the Company, the Company agrees to provide each of GE and Midwest if such Purchaser holds at least a majority of the Series B Shares such Purchaser purchased hereunder):Investor Parties with the following:
(a) within 105 90 days after the end of each fiscal year of the Company, (orA) an audited, if required to be filed with the SEC sooner, then concurrently with such filing), its Form 10-K containing its audited consolidated balance sheet of the Company and related statements of income, stockholders' equity and cash flows its Subsidiaries as of the end of and for such year, setting forth in each case in comparative form the figures for the previous fiscal year, all reported on by PriceWaterhouseCoopers or other independent public accountants of recognized national standing (without any qualification or exception as to the scope of such auditB) to the effect that such an audited, consolidated financial statements present fairly in all material respects the financial condition and results of operations income statement of the Company and its Subsidiaries for such fiscal year and (C) an audited, consolidated statement of cash flows of the Company and its Subsidiaries for such fiscal year; provided that this requirement shall be deemed to have been satisfied if and when the Company files its annual report on a consolidated basis in accordance Form 10-K for the applicable fiscal year with GAAP consistently appliedthe SEC within the required time period therefor;
(b) within 105 days after the end of each fiscal year (or, if required to be filed with the SEC sooner, then concurrently with such filing), its consolidated balance sheets and related statements of income, stockholders' equity and cash flows as of the end of and for such year, setting forth in each case in comparative form the figures for the previous fiscal year, all certified by one of its Financial Officers as presenting fairly in all material respects the results of operations of the Company on a consolidated basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments and the absence of footnotes;
(c) within 60 45 days after the end of each of the first three fiscal quarters of each fiscal year of the Company, (orA) an unaudited, if required to be filed with the SEC sooner, then concurrently with such filing), its Form 10-Q containing its consolidated balance sheet of the Company and related statements of income, stockholders' equity and cash flows its Subsidiaries as of the end of such fiscal quarter, (B) an unaudited, consolidated income statement of the Company and its Subsidiaries for such fiscal quarter and the then elapsed portion (C) an unaudited, consolidated statement of cash flows of the fiscal year, setting forth in each case in comparative form the figures for the corresponding period or periods of (or, in the case of the balance sheet, as of the end of) the previous fiscal year;
(d) within 60 days after the end of each of the first three fiscal quarters of each fiscal year, Company and its consolidated balance sheet and related statements of income, stockholders' equity and cash flows as of the end of and Subsidiaries for such fiscal quarter quarter; provided that this requirement shall be deemed to have been satisfied if and when the then elapsed portion of the fiscal year, setting forth in each case in comparative form the figures Company files its quarterly report on Form 10-Q for the corresponding period or periods of (or, in the case of the balance sheet, as of the end of) the budget and previous fiscal year, all certified by one of its Financial Officers as presenting fairly in all material respects the results of operations of the Company on a consolidated basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments and the absence of footnotes;
(e) within 30 days after the end of each month which is neither a fiscal year end nor a applicable fiscal quarter end, its consolidated balance sheet and related statements of income, stockholders' equity and cash flows as of the end of and for such month and the then elapsed portion of the fiscal year, setting forth in each case in comparative form the figures for the corresponding period or periods of (or, in the case of the balance sheet, as of the end of) the previous fiscal year, all certified by one of its Financial Officers as presenting fairly in all material respects the results of operations of the Company on a consolidated basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments and the absence of footnotes;
(f) by no later than December 15 of each fiscal year, a budget and business plan for the immediately succeeding fiscal year in the form approved by the Company's board of directors, in form, scope and detail satisfactory to the Purchasers and on a quarterly basis for each fiscal quarter of such succeeding fiscal year;
(g) promptly after the same become publicly available, (to the extent not available through electronic means) copies of all periodic and other reports, proxy statements and other materials filed by the Company or any Subsidiary with the SEC, or any Governmental Agency succeeding to any or all of SEC within the functions of the SEC, or with any national securities exchange, or distributed by the Company to its stockholders generally, as the case may be;
(h) promptly after the same are delivered to the members of the Board of Directors, copies of all business plans and other financial plans relating to the Company and/or its Subsidiariesrequired time period therefor; and
(ic) promptly following any request thereforreasonable access, such other information regarding to the operationsextent reasonably requested by the Investor Parties, business affairs to the offices and financial condition the properties of the Company or any Subsidiaryand its Subsidiaries, or compliance with the terms of the this Agreement or any Related Documentincluding its and their books and records, and to discuss its and their affairs and finances and matters relating to capital structure and financing, all upon reasonable notice and at such reasonable times and as often as the Purchasers Investor Parties may reasonably request; provided that any investigation pursuant to this Section 5.17 shall be conducted at the sole cost and expense of the Investor Parties and in a manner as not to interfere unreasonably with the conduct of the business of the Company and its Subsidiaries; provided that the Company shall not be obligated to provide such access or materials if the Company determines, in its reasonable judgment, that doing so would reasonably be expected to (i) result in the disclosure of trade secrets or competitively sensitive information to third parties, (ii) violate applicable Law, an applicable Judgment or a Contract or obligation of confidentiality owing to a third party, (iii) jeopardize the protection of an attorney-client privilege, attorney work product protection or other legal privilege (provided, however, that the Company shall use reasonable efforts to provide alternative, redacted or substitute documents or information in a manner that would not result in the loss of the ability to assert attorney-client privilege, attorney work product protection or other legal privileges), or (iv) expose the Company to risk of liability for disclosure of personal information; provided that the parties shall use their commercially reasonable efforts to disclose such information in a manner that would not violate the foregoing. In addition, notwithstanding anything to the contrary contained herein, neither the Company nor any of its Subsidiaries will be required to provide any information or material that relates to, contains or reflects any analyses, studies, notes, memoranda and other information related to or prepared in connection with any Transaction Document or the Transactions or any matters relating thereto or any transactions with or matters relating to the Investor Parties or any Affiliates of the Investor.
Appears in 1 contract
Information Rights. The Company shall furnish to each Purchaser who From and after the date hereof, for so long as MTVN Stockholder or RN Stockholder holds at least 5% seven and one half percent (7.5%) of the Common Stock on a fully diluted as if converted basis (and regardless then outstanding shares of Voting Stock, such Stockholder shall be entitled to each of GE and Midwest if such Purchaser holds at least a majority of receive from the Series B Shares such Purchaser purchased hereunder):Company the following information:
(a) as soon as available after the end of each fiscal year of the Company, and in any event within 105 fifty (50) days after the end of each fiscal year (orof the Company, if required to be filed with the SEC sooner, then concurrently with such filing), its Form 10-K containing its an audited consolidated balance sheet and related statements of income, stockholders' equity and cash flows as of the end of and for such year, setting forth in each case in comparative form the figures for the previous fiscal year, all reported on by PriceWaterhouseCoopers or other independent public accountants of recognized national standing (without any qualification or exception as to the scope of such audit) to the effect that such consolidated financial statements present fairly in all material respects the financial condition and results of operations of the Company and its Subsidiaries as at the end of such year and audited consolidated statements of income, retained earnings and cash flows of the Company and its Subsidiaries on a consolidated basis for such year, certified by certified public accountants of established national reputation selected by the Company, which shall initially be KPMG LLP, and prepared in accordance with GAAP consistently appliedGAAP;
(b) as soon as available after the end of each fiscal quarter of the Company (other than the fourth quarter), and in any event within 105 thirty (30) days after the end of each fiscal year quarter of the Company (or, if required to be filed with other than the SEC sooner, then concurrently with such filingfourth quarter), its an unaudited consolidated balance sheets sheet of the Company and related its Subsidiaries as at the end of such quarter, and unaudited consolidated statements of income, stockholders' equity retained earnings and cash flows as of the Company and its Subsidiaries for such fiscal quarter and for the current fiscal year to the end of and for such yearfiscal quarter, setting forth in each case in comparative form the figures for the previous fiscal year, all certified by one of its Financial Officers as presenting fairly in all material respects the results of operations of the Company on a consolidated basis prepared in accordance with GAAP consistently applied, (subject to normal year-end audit adjustments and the absence of footnotes;notes thereto); and
(c) within 60 days as soon as available after the end of each of the first three fiscal quarters of each fiscal year calendar month and in any event (ori) within five (5) Business Days thereafter, if required to be filed with the SEC sooner, then concurrently with such filing), its Form 10-Q containing its a preliminary unaudited consolidated balance sheet of the Company and related statements of income, stockholders' equity and cash flows its Subsidiaries as of at the end of such month, and for such fiscal quarter and the then elapsed portion preliminary unaudited consolidated statement of the fiscal year, setting forth in each case in comparative form the figures for the corresponding period or periods of (or, in the case of the balance sheet, as of the end of) the previous fiscal year;
(d) within 60 days after the end of each of the first three fiscal quarters of each fiscal year, its consolidated balance sheet and related statements of income, stockholders' equity and cash flows as of the end of and for such fiscal quarter and the then elapsed portion of the fiscal year, setting forth in each case in comparative form the figures for the corresponding period or periods of (or, in the case of the balance sheet, as of the end of) the budget and previous fiscal year, all certified by one of its Financial Officers as presenting fairly in all material respects the results of operations income of the Company on a consolidated basis and its Subsidiaries for such month, prepared in accordance with GAAP consistently applied, (subject to normal year-end audit adjustments and the absence of footnotes;
notes thereto), (eii) within 30 days after ten (10) Business Days thereafter, a final unaudited consolidated balance sheet of the Company and its Subsidiaries as at the end of each month which is neither a fiscal year end nor a fiscal quarter endsuch month, its and final unaudited consolidated balance sheet and related statements statement of income, stockholders' equity and cash flows as of the end of and for such month and the then elapsed portion of the fiscal year, setting forth in each case in comparative form the figures for the corresponding period or periods of (or, in the case of the balance sheet, as of the end of) the previous fiscal year, all certified by one of its Financial Officers as presenting fairly in all material respects the results of operations income of the Company on a consolidated basis and its Subsidiaries for such month, prepared in accordance with GAAP consistently applied, (subject to normal year-end audit adjustments and the absence of footnotes;
notes thereto) and (fiii) by no later than December 15 of each fiscal yearwithin twenty (20) days thereafter, a budget and business plan for the immediately succeeding fiscal year in the form approved by summary of the Company's board of directors, ’s financial performance not to exceed one page in form, scope and detail satisfactory length in a form to the Purchasers and on a quarterly basis for each fiscal quarter of such succeeding fiscal year;
(g) promptly after the same become publicly available, (to the extent not available through electronic means) copies of all periodic and other reports, proxy statements and other materials filed be mutually agreed upon by the Company or any Subsidiary with and the SEC, or any Governmental Agency succeeding to any or all of the functions of the SEC, or with any national securities exchange, or distributed by the Company to its stockholders generally, as the case may be;
(h) promptly after the same are delivered to the members of the Board of Directors, copies of all business plans and other financial plans relating to the Company and/or its Subsidiaries; and
(i) recipients promptly following any request therefor, such other information regarding the operations, business affairs and financial condition execution of the Company or any Subsidiary, or compliance with the terms of the this Agreement or any Related Document, as the Purchasers may reasonably requestAgreement.
Appears in 1 contract
Information Rights. The Besides the information that shall be furnished under Applicable Laws, the Company shall furnish to each Purchaser who holds at least 5% of the Common Stock on a fully diluted as if converted basis (and regardless to each of GE and Midwest if such Purchaser holds at least a majority of the Series B Shares such Purchaser purchased hereunder):Preferred Investor:
(a) within 105 thirty (30) days prior to the end of each fiscal year, an annual consolidated budget (including the budget financial statements) and an annual business plan of the Company duly approved in accordance with Section 2.06 for the next fiscal year;
(b) within ten (10) Business Days after the end of each month, an operational report for such month in the form required by the Board, which shall set forth the operating performance for such month and for the portion of the fiscal year then ended, including the cumulative difference from the applicable capital and operational budget;
(c) within fifteen (15) days after the end of each month, (i) unaudited monthly financial statements (including consolidated and separate financial statements), which shall include a balance sheet, an income statement and a cash flow statement for such month and for the portion of the fiscal year then ended; and (ii) monthly financial statements prepared by the Company in accordance with IFRS based on its unaudited monthly financial statements in accordance with PRC GAAP;
(d) within thirty (30) days after the end of each quarter, (i) unaudited quarterly financial statements (including consolidated and separate financial statements), which shall include a balance sheet, an income statement and a cash flow statement (including the cash balance) for such quarter and for the portion of the fiscal year then ended, and setting forth in each case in comparative form the figures for the corresponding periods of the previous fiscal year as well as any other information required by the applicable Laws and the Board; (ii) an analysis of the Company’s operational development for the quarter ended and a forecast for the current and following quarters, prepared by the management of the Company and attached to such quarterly financial statements; and (iii) quarterly financial statements prepared by the Company in accordance with IFRS based on its unaudited quarterly financial statements in accordance with PRC GAAP;
(e) within sixty (60) days after the end of each fiscal year year, (ori) audited annual financial statements (including consolidated and separate financial statements) for the Company, if required to be filed with which shall include a balance sheet, an income statement and a cash flow statement (including the SEC sooner, then concurrently with such filing), its Form 10-K containing its audited consolidated balance sheet cash balance) and related statements of incomenotes thereto, stockholders' equity and cash flows as of the end of and for such year, setting forth in each case in comparative form the figures for the previous fiscal year, all reported on year as well as any other information required by PriceWaterhouseCoopers or other independent public accountants of recognized national standing the applicable Laws and the Board; and (without any qualification or exception as to the scope of such auditii) to the effect that such consolidated annual financial statements present fairly in all material respects the financial condition and results of operations of the Company and its consolidated Subsidiaries on a consolidated basis in accordance with GAAP consistently applied;
(b) within 105 days after the end of each fiscal year (or, if required to be filed with the SEC sooner, then concurrently with such filing), IFRS based on its consolidated balance sheets and related audited annual financial statements of income, stockholders' equity and cash flows as of the end of and for such year, setting forth in each case in comparative form the figures for the previous fiscal year, all certified by one of its Financial Officers as presenting fairly in all material respects the results of operations of the Company on a consolidated basis in accordance with GAAP consistently appliedPRC GAAP, subject to normal year-end audit adjustments and the absence of footnotes;
(c) within 60 days after the end of each of the first three fiscal quarters of each fiscal year (oraudited by PricewaterhouseCoopers, if required to be filed with the SEC soonerErnst & Young, then concurrently with such filing), its Form 10-Q containing its consolidated balance sheet and related statements of income, stockholders' equity and cash flows as of the end of and for such fiscal quarter and the then elapsed portion of the fiscal year, setting forth in each case in comparative form the figures for the corresponding period KPMG or periods of (or, in the case of the balance sheet, as of the end of) the previous fiscal year;
(d) within 60 days after the end of each of the first three fiscal quarters of each fiscal year, its consolidated balance sheet and related statements of income, stockholders' equity and cash flows as of the end of and for such fiscal quarter and the then elapsed portion of the fiscal year, setting forth in each case in comparative form the figures for the corresponding period or periods of (or, in the case of the balance sheet, as of the end of) the budget and previous fiscal year, all certified by one of its Financial Officers as presenting fairly in all material respects the results of operations of the Company on a consolidated basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments and the absence of footnotes;
(e) within 30 days after the end of each month which is neither a fiscal year end nor a fiscal quarter end, its consolidated balance sheet and related statements of income, stockholders' equity and cash flows as of the end of and for such month and the then elapsed portion of the fiscal year, setting forth in each case in comparative form the figures for the corresponding period or periods of (or, in the case of the balance sheet, as of the end of) the previous fiscal year, all certified by one of its Financial Officers as presenting fairly in all material respects the results of operations of the Company on a consolidated basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments and the absence of footnotes;Deloitte & Touche; and
(f) other materials or information as reasonably requested by no later than December 15 of each fiscal yearany Preferred Investor, a budget and business plan for the immediately succeeding fiscal year in the form approved by the Company's board of directors, in form, scope and detail satisfactory to the Purchasers and on a quarterly basis for each fiscal quarter within five (5) days upon receipt of such succeeding fiscal year;
(g) promptly after the same become publicly available, (to the extent not available through electronic means) copies of all periodic and other reports, proxy statements and other materials filed by the Company or any Subsidiary with the SEC, or any Governmental Agency succeeding to any or all of the functions of the SEC, or with any national securities exchange, or distributed request. All information furnished by the Company to its stockholders generally, as the case may be;
(h) promptly after Preferred Investors shall be certified by the same are delivered to the members of the Board of Directors, copies of all business plans and other financial plans relating to the Company and/or its Subsidiaries; and
(i) promptly following any request therefor, such other information regarding the operations, business affairs and financial condition chief executive officer of the Company or any Subsidiary(and for the information referred to in above subsections (c), or compliance with (d) and (e), also by the terms chief financial officer of the this Agreement or any Related DocumentCompany) as true, as the Purchasers may reasonably requestcorrect and not misleading.
Appears in 1 contract
Information Rights. The 7.1.1 For so long as the Oaktree Investors collectively own at least the Minimum Threshold, the Company shall furnish deliver the following to each Purchaser who holds at least 5% of the Common Stock on a fully diluted as if converted basis (and regardless to each of GE and Midwest if such Purchaser holds at least a majority of the Series B Shares such Purchaser purchased hereunder):Oaktree Investors:
(a) within 105 days after the end as soon as available following completion of each monthly accounting period in each fiscal year (or, if required to be filed with the SEC sooner, then and substantially concurrently with such filingdelivery to the Board), its Form 10-K containing its audited unaudited consolidated balance sheet and related consolidating statements of incomeincome or operations, stockholders' ’ equity (or the equivalent) and cash flows of the Company and its Subsidiaries for such monthly period and for the period from the beginning of the fiscal year to the end of such month, and unaudited consolidated and consolidating balance sheets of the Company and its Subsidiaries as of the end of and for such year, setting forth in each case in comparative form the figures for the previous fiscal year, all reported on by PriceWaterhouseCoopers or other independent public accountants of recognized national standing (without any qualification or exception as to the scope of such audit) to the effect that such consolidated financial statements present fairly in all material respects the financial condition and results of operations of the Company and its consolidated Subsidiaries on a consolidated basis in accordance with GAAP consistently appliedmonthly period;
(b) within 105 days after the end of each fiscal year (or, if required to be filed with the SEC sooner, then concurrently with such filing), its consolidated balance sheets and related statements of income, stockholders' equity and cash flows as of the end of and for such year, setting forth in each case in comparative form the figures for the previous fiscal year, all certified by one of its Financial Officers as presenting fairly in all material respects the results of operations of the Company on a consolidated basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments and the absence of footnotes;
(c) within 60 days after the end of each of the first three fiscal quarters of each fiscal year (or, if required to be filed with the SEC sooner, then concurrently with such filing), its Form 10-Q containing its consolidated balance sheet and related statements of income, stockholders' equity and cash flows as of the end of and for such fiscal quarter and the then elapsed portion of the fiscal year, setting forth in each case in comparative form the figures for the corresponding period or periods of (or, in the case of the balance sheet, as of the end of) the previous fiscal year;
(d) within 60 days after the end of each of the first three fiscal quarters of each fiscal year, its unaudited consolidated balance sheet and related consolidating statements of incomeincome or operations, stockholders' ’ equity (or the equivalent) and cash flows of the Company and its Subsidiaries for such quarterly period and for the period from the beginning of the fiscal year to the end of such quarter and unaudited consolidated and consolidating balance sheets of the Company and its Subsidiaries as of the end of such quarterly period, such reports to be delivered no later than the date that such reports would be required to be filed with the SEC under the Exchange Act assuming the Company were required to file such forms pursuant to the Exchange Act and the applicable rules and regulations of the SEC thereunder (including any extensions permitted by Rule 12b-25);
(c) for each fiscal year, audited consolidated and consolidating statements of income or operations, stockholders’ equity (or the equivalent) and cash flows of the Company and its Subsidiaries for such fiscal quarter year, and the then elapsed portion consolidated and consolidating balance sheets of the fiscal year, setting forth in each case in comparative form the figures for the corresponding period or periods of (or, in the case of the balance sheet, Company and its Subsidiaries as of the end of) the budget and previous of such fiscal year, all certified such reports to be delivered no later than the date that such reports would be required to be filed with the SEC under the Exchange Act assuming the Company were required to file such forms pursuant to the Exchange Act and the applicable rules and regulations of the SEC thereunder (including any extensions permitted by one Rule 12b-25);
(d) concurrently with the delivery of its the reports set forth in clause (b) and (c) above, a written statement signed by the Chief Financial Officers as presenting fairly in all material respects the results of operations Officer of the Company on a consolidated basis which (i) sets forth in accordance with GAAP consistently appliedreasonable detail the Company’s Tangible Book Value of Equity and Corporate Net Leverage Ratio (each as defined in the Certificate of Designation) as of the last day of the applicable quarterly accounting period and (ii) states whether or not, subject to normal year-end audit adjustments the best of his or her knowledge, the Company or any of its Subsidiaries is in default in the performance and observation of any covenant or other obligation under the Certificate of Designation or of any of the Specified Covenants and, if the Company or any of its Subsidiaries shall be in default, specifying all such defaults and the absence nature and status thereof of footnoteswhich he or she may have knowledge;
(e) within 30 days reasonably promptly after the end Company obtains knowledge thereof, written notice of each month which is neither any litigation or regulatory actions involving a fiscal year end nor a fiscal quarter end, its consolidated balance sheet and related statements of income, stockholders' equity and cash flows as of the end of and for such month and the then elapsed portion of the fiscal year, setting forth in each case in comparative form the figures for the corresponding period or periods of (or, in the case of the balance sheet, as of the end of) the previous fiscal year, all certified by one of its Financial Officers as presenting fairly in all material respects the results of operations of the Company on a consolidated basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments and the absence of footnotespotential liability above $25.0 million;
(f) with reasonable promptness, any information reasonably requested by no later than December 15 any Oaktree Investor related to the valuation of each fiscal year, a budget and business plan for the immediately succeeding fiscal year their investment in the form approved by Company and its Subsidiaries under the Company's board of directors, in form, scope and detail satisfactory to the Purchasers and on a quarterly basis for each fiscal quarter of such succeeding fiscal year;Financial Accounting Standards Board Accounting Standards Codification Topic 820 (Fair Value Measurements); and
(g) promptly and in any event within one (1) Business Day after becoming aware of any breach or Event of Noncompliance under the same become publicly availableCertificate of Designation or this Agreement, (to written notice of such breach or Event of Noncompliance, specifying the extent not available through electronic means) copies nature and status thereof.
7.1.2 The Company may satisfy any requirement of all periodic and other reports, proxy statements and other materials filed Section 7.1.1 by the Company or any Subsidiary filing with the SEC, SEC the reports or any Governmental Agency succeeding to any or all of the functions of the SEC, or with any national securities exchange, or distributed information required by the Company to its stockholders generally, as the case may be;
(h) promptly after the same are delivered to the members of the Board of Directors, copies of all business plans and other financial plans relating to the Company and/or its Subsidiaries; and
(i) promptly following any request therefor, such other information regarding the operations, business affairs and financial condition of the Company or any Subsidiary, or compliance with the terms of the this Agreement or any Related Document, as the Purchasers may reasonably requestSection 7.1.1.
Appears in 1 contract
Information Rights. The Company shall furnish to each Purchaser who holds at least 5% of the Common Stock on a fully diluted as if converted basis (and regardless to each of GE and Midwest if such Purchaser holds at least a majority of the Series B Shares such Purchaser purchased hereunder):
(a) For so long as (x) GMAC Mortgage Group or its Permitted Transferees collectively continue to hold at least twenty percent (20%) of the issued and outstanding shares of Common Stock or (y) it is otherwise necessary (in GMAC Mortgage Group’s good faith judgment) for it to receive the following information in order for GMAC Mortgage Group or its Affiliates to timely comply with their financial reporting or disclosure obligations, the Company shall deliver to GMAC Mortgage Group and Investor:
(i) (A) as soon as is available (and in any event within 105 three (3) business days) after the end of each fiscal month, quarter and year (or such later date as GMAC Mortgage Group may reasonably agree), a preliminary net income letter of the Company on a consolidated basis for such period then ended in substantially the form attached hereto as Exhibit B, which net income letter shall be supplemented by a final net income letter within five (5) business days after the end of each fiscal month, quarter and year (or such later date as GMAC Mortgage Group may reasonably agree) to reflect any necessary changes to the preliminary net income letter, and a statement of the trial balance (without any requirement for a Hyperion download) of the Company on a consolidated basis for such month, quarter and year and (B) as soon as is available after the end of each fiscal month, the monthly financial management report in substantially the form prepared currently, as such form may be subsequently adjusted and adapted in the ordinary course; provided that in the case of clause (A), such net income letters and the trial balance shall be prepared in conformity with generally accepted accounting principles in the United States applied on a consistent basis, except as otherwise noted therein, and subject to the absence of footnotes and to year-end adjustments;
(ii) as soon as is available and in any event within fifty-five (55) days after the end of each fiscal year (orof the Company, if required to be filed with the SEC sooner, then concurrently with such filing), its Form 10-K containing its audited a consolidated balance sheet of the Company and related statements any Subsidiaries of income, stockholders' equity and cash flows the Company as of the end of and for such year, setting forth in each case in comparative form the figures for the previous fiscal year, all reported on by PriceWaterhouseCoopers or other independent public accountants and consolidated statements of recognized national standing (without any qualification or exception as to the scope of such audit) to the effect that such consolidated financial statements present fairly in all material respects the financial condition income and results of operations cash flows of the Company and its consolidated Subsidiaries any Subsidiary of the Company for the year ended (“Annual Financial Statements”) prepared in conformity with generally accepted accounting principles in the United States applied on a consolidated basis consistent basis, except as otherwise noted therein, together with an auditor’s report thereon of a firm of established national reputation; provided, that any failure to deliver such information shall not constitute a breach of this Section 5.2(a)(ii) (A) to the extent that, and for so long as, such failure is caused by a material error in accordance the Company’s financial statements or a material weakness in the Company’s internal controls, in either case that requires continued review and/or subsequent restatement of such Annual Financial Statements and (B) if, within fifty-five (55) days after the end of such fiscal year, the Company shall have delivered to GMAC Mortgage Group and Investor then-current drafts of such Annual Financial Statements, which drafts shall be subject to change in connection with GAAP consistently appliedany review and/or restatement of such Annual Financial Statements;
(biii) as soon as is available, and in any event prior to November 1 of each fiscal year (or such later date as GMAC Mortgage Group may reasonably agree), an annual business plan that includes a projection of net income for the subsequent fiscal year (the “Annual Forecast”);
(iv) as soon as possible (and in any event within 105 days fifteen (15) days) after the end of each fiscal year month (or, if required to be filed with the SEC sooner, then concurrently with or such filinglater date as GMAC Mortgage Group may reasonably agree), its consolidated balance sheets an update to the Annual Forecast if and related statements to the extent necessary to reflect any material modification to such forecast; and
(v) to the extent the Company is required by law or pursuant to the terms of income, stockholders' equity and cash flows as of the end of and for such year, setting forth in each case in comparative form the figures for the previous fiscal year, all certified by one of its Financial Officers as presenting fairly in all material respects the results of operations any outstanding indebtedness of the Company on a consolidated basis in accordance with GAAP consistently appliedto prepare such reports, subject any annual reports, quarterly reports and other periodic reports pursuant to normal year-end audit adjustments Section 13 or 15(d) of the Exchange Act, as amended, actually prepared by the Company as soon as available.
(b) The Company shall, and the absence shall cause each of footnotes;its Subsidiaries to, provide to GMAC Mortgage Group, and create or generate any information as GMAC Mortgage Group may reasonably request, including true and correct copies of all documents, reports, financial data and other information.
(c) within 60 days after the end of each of the first three fiscal quarters of each fiscal year (or, if required to be filed with the SEC sooner, then concurrently with such filing), its Form 10-Q containing its consolidated balance sheet GMAC Mortgage Group and related statements of income, stockholders' equity and cash flows as of the end of and for such fiscal quarter and the then elapsed portion of the fiscal year, setting forth in each case in comparative form the figures for the corresponding period or periods of (or, in the case of the balance sheet, as of the end of) the previous fiscal year;
(d) within 60 days after the end of each of the first three fiscal quarters of each fiscal year, its consolidated balance sheet and related statements of income, stockholders' equity and cash flows as of the end of and for such fiscal quarter and the then elapsed portion of the fiscal year, setting forth in each case in comparative form the figures for the corresponding period or periods of (or, in the case of the balance sheet, as of the end of) the budget and previous fiscal year, all certified by one of its Financial Officers as presenting fairly in all material respects the results of operations of the Company on a consolidated basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments and the absence of footnotes;
(e) within 30 days after the end of each month which is neither a fiscal year end nor a fiscal quarter end, its consolidated balance sheet and related statements of income, stockholders' equity and cash flows as of the end of and for such month and the then elapsed portion of the fiscal year, setting forth in each case in comparative form the figures for the corresponding period or periods of (or, in the case of the balance sheet, as of the end of) the previous fiscal year, all certified by one of its Financial Officers as presenting fairly in all material respects the results of operations of the Company on a consolidated basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments and the absence of footnotes;
(f) by no later than December 15 of each fiscal year, a budget and business plan for the immediately succeeding fiscal year in the form approved by the Company's board of directors, in form, scope and detail satisfactory to the Purchasers and on a quarterly basis for each fiscal quarter of such succeeding fiscal year;
(g) promptly after the same become publicly available, (to the extent not available through electronic means) copies of all periodic and other reports, proxy statements and other materials filed by the Company or any Subsidiary with the SEC, or any Governmental Agency succeeding to any or Investor understand that all of the functions reports and other information required pursuant to Sections 5.2(a)(i) – (v) and Section 5.2(b) above will be subject to the review and approval of the SEC, or with any national securities exchange, or distributed by the Company to its stockholders generally, as the case may be;
(h) promptly after the same are delivered to the members Audit Committee of the Board of Directors, copies of all business plans and other financial plans relating to the Company and/or its Subsidiaries; and
(i) promptly following any request therefor, such other information regarding the operations, business affairs and financial condition Directors of the Company or any Subsidiary, or compliance with and the terms review of the this Agreement or Company’s independent auditors, and any Related Document, such reports and other information shall be subject to any changes resulting from such reviews and none shall be deemed final until such reviews are completed and such approvals are obtained by the Company; provided that (except as provided in Section 5.2(a)(ii)) the Purchasers may reasonably requestreports and information required to be provided pursuant to Section 5.2(a) shall be finalized and delivered within the time periods specified therein.
Appears in 1 contract
Information Rights. The So long as the Wafra Participation Buyer owns any Ownership Interests, the Company shall furnish provide or make available to each Purchaser who holds at least 5% of the Common Stock on a fully diluted as if converted basis (and regardless to each of GE and Midwest if such Purchaser holds at least a majority of Wafra Representative the Series B Shares such Purchaser purchased hereunder):following:
(ai) as soon as practicable, and in any event within 105 one-hundred twenty (120) days after following the end of each fiscal year (orFiscal Year, if required to be filed beginning with the SEC soonerend of the Fiscal Year ending December 31, then concurrently with 2020, the (A) consolidated audited financial statements of the Company and its Subsidiaries for such filing)Fiscal Year, its Form 10-K containing its audited consolidated including a balance sheet and related statements of income, stockholders' equity and cash flows as of the end of such Fiscal Year and the related statements of operations, changes in member’s equity (deficit) and cash flows for such yearFiscal Year, setting forth prepared in each case in comparative form accordance with GAAP and certified by the figures for the previous fiscal year, all reported on by PriceWaterhouseCoopers or other Company’s independent public accountants (which shall be a firm of nationally recognized national standing independent accountants), consisting of statements of (without any qualification or exception as to the scope of such auditx) to the effect that such consolidated financial statements present fairly in all material respects the financial condition and results of operations of the Company and its consolidated Subsidiaries on a consolidated basis and (y) income, cash flows and changes in accordance with GAAP consistently applied;
members’ capital for such Fiscal Year, and (bB) within 105 days after the end audited financial statements of each fiscal year (orthe Digital Colony Funds, if required to be filed with the SEC soonerany, then concurrently with such filing), its consolidated including a balance sheets and related statements of income, stockholders' equity and cash flows sheet as of the end of such Fiscal Year and the related statements of operations, changes in member’s equity (deficit) and cash flows for such yearFiscal Year, setting forth in each case in comparative form the figures for the previous fiscal year, all certified by one of its Financial Officers as presenting fairly in all material respects the results of operations of the Company on a consolidated basis prepared in accordance with GAAP consistently appliedGAAP, subject to normal year-end audit adjustments and certified by the absence Digital Colony Funds’ independent public accountants (which shall be a firm of footnotesnationally recognized independent accountants);
(cii) as soon as practicable, and in any event within 60 sixty (60) days after following the end of each of the first three fiscal quarters of each Fiscal Year of the Company and its Subsidiaries, (i) the consolidated unaudited financial statements of the Company and its Subsidiaries for such fiscal year (orquarter, if required to be filed prepared in accordance with the SEC soonerGAAP, then concurrently with such filing), its Form 10-Q containing its consolidated including a balance sheet and related statements of income, stockholders' equity and cash flows as of the end of such fiscal quarter and the related statements of operations, changes in member’s equity (deficit) and cash flows for such fiscal quarter and the then elapsed portion of the fiscal year, setting forth in each case in comparative form the figures for the corresponding period or periods of (or, in the case of the balance sheet, as of the end ofii) the previous fiscal year;
(d) within 60 days after the end unaudited financial statements of each of the first three Digital Colony Fund for such fiscal quarters of each fiscal yearquarter, its consolidated prepared in accordance with GAAP, including a balance sheet and related statements of income, stockholders' equity and cash flows as of the end of and for such fiscal quarter and the then elapsed portion related statements of the operations, changes in member’s equity (deficit) and cash flows for such fiscal yearquarter, setting forth in each case in comparative form the figures for the corresponding period or periods of (or, in the case of the balance sheet, as of the end of) the budget and previous fiscal year, all certified by one of its Financial Officers as presenting fairly in all material respects the results of operations of the Company on a consolidated basis prepared in accordance with GAAP consistently applied, subject to normal year-end audit adjustments and the absence of footnotesGAAP;
(eiii) within 30 on a quarterly basis, a summary describing, in reasonable detail, any Related Party Transactions that were entered into, modified or terminated in each such quarter and a true and correct list of each Person who has the right to receive Carried Interest from any Digital Colony Fund, together with the amount and/or percentage of such Carried Interest owned by each such Person, to the extent of any changes from the prior quarter; -18- LA_LAN01:362817.14
(iv) on a quarterly basis, a copy of the standard reporting package (including financial statements) made available to the investors in any Digital Colony Fund, at substantially the same time such package is generally distributed to such investors;
(v) on a quarterly basis, copies of investor letters and reports regarding Digital Colony Funds made generally available to investors, at substantially the same time such letters and reports are distributed to such investors;
(vi) no later than thirty (30) days after following the end of each month which is neither a fiscal year end nor a fiscal quarter endFiscal Year, the Company’s and its consolidated balance sheet and related statements Subsidiaries’ good faith estimate of income, stockholders' equity and cash flows as of the end of and for such month and the then elapsed portion of the fiscal year, setting forth in projected exit proceeds from each case in comparative form the figures for the corresponding period or periods of (or, in the case of the balance sheet, as of the end of) the previous fiscal year, all certified by one of its Financial Officers as presenting fairly in all material respects the results of operations of the Company on a consolidated basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments and the absence of footnotesportfolio investment;
(fvii) by no later than December 15 of each fiscal year, a budget and business plan for the immediately succeeding fiscal year in the form approved by the Company's board of directors, in form, scope and detail satisfactory to the Purchasers and on a quarterly basis for each fiscal quarter of such succeeding fiscal year;
(g) promptly after the same become publicly available, (to the extent not available through electronic meansrestricted by Law, notice as soon as reasonably practicable if the Digital Colony Companies or any Digital Colony Fund receives a non-routine letter from any U.S. or non-U.S. securities regulatory body, including the SEC, describing its findings from an examination conducted by such regulator that identifies any material deficiencies;
(viii) prompt written notice (and in any event not later than five (5) Business Days) after becoming aware of any action or proceeding or receiving notice of any investigation pending before any court or Governmental Authority, including, without limitation, the SEC or any state securities regulatory authority against the Digital Colony Companies or any of their Controlled Affiliates or senior officers of the Digital Colony Companies that claim or allege (x) any violation of any federal or state securities law, rule or regulation, or (y) any breach of fiduciary duties, in each case that would reasonably be expected to have an adverse effect on the Digital Colony Companies or any of the Digital Colony Funds;
(ix) prompt notice of any other material issues that might arise in the Digital Colony Business from time to time, including any action or proceeding or receiving formal written notice of any investigation commenced against any partner of the Digital Colony Companies or any of their employees, directors, officers or partners or any Managing Director or Successor, and any other litigation with respect to any partner of the Digital Colony Companies or any of its employees, directors, officers or partners or any Managing Director or Successor, in each case that may reasonably be expected to have a material adverse effect on the Digital Colony Companies or any of the Digital Colony Funds;
(x) copies of all periodic and materials prepared for the advisory committee of each Digital Colony Fund in which the Wafra Participation Buyers or other reportsWafra Entity directly or indirectly is an investor, proxy statements and other materials filed by including, for the Company avoidance of doubt, any Digital Colony Fund in which any Wafra Entity is making, directly or indirectly, any Subsidiary Sponsor Commitment, contemporaneously with the SEC, or any Governmental Agency succeeding to any or all distribution of the functions of the SEC, or with any national securities exchange, or distributed by the Company to its stockholders generally, as the case may be;
(h) promptly after the same are delivered such materials to the members of the Board of Directors, such advisory committee;
(xi) copies of all business plans any material legal, operating, compliance, gift, entertainment and other financial plans policies and procedures of the Digital Colony Companies, including any material amendments relating thereto;
(xii) information reasonably requested by the Wafra Representative in connection with any Wafra Consent, approval or other action required to be taken by the Wafra Representative or any other Wafra Entity under this Agreement or the Ancillary Agreements, LA_LAN01:362817.14 including information reasonably necessary to confirm compliance with the obligations set forth herein or therein;
(xiii) as reasonably requested by the Wafra Representative, valuation materials regarding the reported net asset value of any of the Digital Colony Funds but only to the Company and/or extent readily available;
(xiv) to the extent reasonably practicable, position level information regarding any Digital Colony Fund (and underlying portfolio investments) in which the Wafra Participation Buyer or other Wafra Entity is directly or indirectly an investor, including, for the avoidance of doubt, any Digital Colony Fund in which any Wafra Entity is making, directly or indirectly, any Sponsor Commitment, to the extent such position level information is reasonably requested to assist the Wafra Participation Buyer or any of its Affiliates in the monitoring and valuation of the Wafra Entities’ Interests other than material non-public information (unless it is legally permissible to be so provided) with respect to any securities traded on a national securities exchange;
(xv) calculations provided to any lender in connection with the covenants in, and any reports delivered to any lender in accordance with, any credit agreements or credit facility of the Digital Colony Companies;
(xvi) as reasonably requested by the Wafra Representative, all Fund Documentation for the Digital Colony Funds and side letters pertaining thereto (in each case, including any amendments or changes thereto), except for redacted information to the extent required to comply with applicable confidentiality requirements set forth therein;
(xvii) upon the reasonable request of the Wafra Representative and to the extent reasonably practicable, such additional information regarding the status of the Digital Colony Business and its financial performance, the performance of each of the Company’s and its Subsidiaries’ investment products, and legal, regulatory and compliance matters; and
(xviii) without limitation of the information and reports described in this Section 6(a) promptly upon request of the Wafra Representative, the Company and its Subsidiaries will provide the Wafra Representative with (i) promptly following copies of all materials provided generally to investors in the Digital Colony Funds and other investment products, including, for example, investment letters and client and risk reports and (ii) any request therefor, such other information regarding the operations, business affairs and financial condition of the Company or any Subsidiary, or reasonably necessary to confirm compliance with the terms of the obligations set forth in this Agreement or any Related Document, as and the Purchasers may reasonably requestother Ancillary Agreements.
Appears in 1 contract
Sources: Carried Interest Participation Agreement (Colony Capital, Inc.)
Information Rights. The Company shall furnish (a) Following the Closing and prior to the first day on which the Purchaser, together with each of its Permitted Transferees and any successive Permitted Transferees thereof (collectively, the “Purchaser who holds Parties”), do not collectively hold (i) at least 550% of the Common Stock aggregate principal amount of Notes issued on a fully diluted the Closing Date and (ii) Warrants or Warrant Shares, as if converted basis (and regardless to each of GE and Midwest if such Purchaser holds the case may be, representing at least a majority 1.50% of the Series B Shares fully-diluted ordinary shares of the Company (on an as-exercised basis in the case of the Warrants) (such time the Purchaser purchased hereunder):Parties certify to the Company as to such collective ownership thereof, the “Fall-Away of Purchaser Rights”), upon the prior request one or more of the Purchaser Parties in writing to the Company, the Company will provide the Purchaser Parties with the following:
(ai) within 105 90 days after the end of each fiscal year of the Company, (orA) an audited, if required to be filed with the SEC sooner, then concurrently with such filing), its Form 10-K containing its audited consolidated balance sheet of the Company and related statements of income, stockholders' equity and cash flows its subsidiaries as of the end of and for such year, setting forth in each case in comparative form the figures for the previous fiscal year, all reported on by PriceWaterhouseCoopers or other independent public accountants of recognized national standing (without any qualification or exception as to the scope of such auditB) to the effect that such an audited, consolidated financial statements present fairly in all material respects the financial condition and results of operations income statement of the Company and its subsidiaries for such fiscal year and (C) an audited, consolidated Subsidiaries statement of cash flows of the Company and its subsidiaries for such fiscal year; provided that this requirement shall be deemed to have been satisfied if on a consolidated basis in accordance or prior to such date the Company files its annual report on Form 10-K for the applicable fiscal year with GAAP consistently appliedthe SEC;
(bii) within 105 days after the end of each fiscal year (or, if required to be filed with the SEC sooner, then concurrently with such filing), its consolidated balance sheets and related statements of income, stockholders' equity and cash flows as of the end of and for such year, setting forth in each case in comparative form the figures for the previous fiscal year, all certified by one of its Financial Officers as presenting fairly in all material respects the results of operations of the Company on a consolidated basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments and the absence of footnotes;
(c) within 60 45 days after the end of each of the first three fiscal quarters of each fiscal year of the Company, (orA) an unaudited, if required to be filed with the SEC sooner, then concurrently with such filing), its Form 10-Q containing its consolidated balance sheet of the Company and related statements of income, stockholders' equity and cash flows its subsidiaries as of the end of such fiscal quarter, (B) an unaudited, consolidated income statement of the Company and its subsidiaries for such fiscal quarter and the then elapsed portion (C) an unaudited, consolidated statement of cash flows of the Company and its subsidiaries for such fiscal year, setting forth in each case in comparative form quarter; provided that this requirement shall be deemed to have been satisfied if on or prior to such date the figures Company files its quarterly report on Form 10-Q for the corresponding period or periods of (or, in applicable fiscal year with the case of the balance sheet, as of the end of) the previous fiscal yearSEC;
(diii) within twenty (20) days after the end of each of month, customary reports regarding the consolidated financial results of the Company and its subsidiaries during the immediately preceding month;
(iv) as soon as available, but in any event no more than 60 days after the end of each fiscal year of the first three fiscal quarters of each fiscal yearCompany, its consolidated balance sheet and related statements of income, stockholders' equity and cash flows as a copy of the end of plan and for such fiscal quarter and the then elapsed portion of the fiscal year, setting forth in each case in comparative form the figures for the corresponding period or periods of forecast (or, in the case of the including a projected consolidated balance sheet, as of the end ofincome statement and cash flow statement) the budget and previous fiscal year, all certified by one of its Financial Officers as presenting fairly in all material respects the results of operations of the Company on a consolidated basis in accordance with GAAP consistently applied, subject to normal for each quarter of the upcoming fiscal year-end audit adjustments and the absence of footnotes;
(ev) within 30 days after reasonable access, to the end of each month which is neither a fiscal year end nor a fiscal quarter endextent reasonably requested by the Purchaser, its consolidated balance sheet and related statements of income, stockholders' equity and cash flows as of to the end of and for such month offices and the then elapsed portion of the fiscal year, setting forth in each case in comparative form the figures for the corresponding period or periods of (or, in the case of the balance sheet, as of the end of) the previous fiscal year, all certified by one of its Financial Officers as presenting fairly in all material respects the results of operations properties of the Company on and its subsidiaries, including its and their books and records, and to discuss its and their affairs, finances and accounts with its and their officers, all upon reasonable notice and at such reasonable times and as often as the Purchaser may reasonably request; provided that any investigation pursuant to this Section 5.1(j)(a)(v) shall be conducted in a consolidated basis in accordance manner as not to interfere unreasonably with GAAP consistently applied, subject to normal year-end audit adjustments the conduct of the business of the Company and the absence of footnotes;its subsidiaries; and
(fvi) by no later than December 15 copies of each fiscal year, a budget and business plan for all substantive materials that are provided to the immediately succeeding fiscal year in the form approved by the Company's board of directors, in form, scope and detail satisfactory to directors of the Purchasers and Company (the “Board”) on a quarterly basis for each fiscal quarter formal meetings of the Board, with such succeeding fiscal year;
(g) promptly after materials being provided to the Purchaser at substantially the same become publicly availabletime as provided to the directors of the Company; provided that the Company shall not be obligated to provide such access or materials, (or provide them in redacted format, if and to the extent not available through electronic means) copies the Company determines, in its reasonable judgment, that such materials contain competitively-sensitive information, including, without limitation, with respect to the consumer-focused lines of all periodic and other reports, proxy statements and other materials filed business operated by the Company or any Subsidiary with of its subsidiaries from time to time) or doing so would (i) materially violate applicable law, an applicable order or a contract or obligation of confidentiality owing to a third party, (ii) violate or materially prejudice the SECrights of its customers, (iii) result in the disclosure of trade secrets, (iv) be adverse to the interests of the Company or any Governmental Agency succeeding of its subsidiaries in any pending or threatened Action, (v) expose the Company to risk of liability for disclosure of personal information or (vi) jeopardize the protection of attorney-client privilege, attorney work product protection or other legal privilege. In addition, notwithstanding anything to the contrary contained herein, neither the Company nor any of its subsidiaries will be required to provide any information or material that relate to, contain or reflect any analyses, studies, notes, memoranda and other information related to or prepared in connection with any Transaction Document or the transactions or any matters relating thereto or any transactions with or matters relating to the Purchaser or any Affiliates thereof. For the avoidance of doubt, (i) a request for information in accordance with this Section 5.1(j)(a) from the Purchaser or one Purchaser Party shall be deemed to be the request on behalf of all Purchaser Parties, and (ii) the absence of such a request from any or all of the functions Purchaser Parties shall not be deemed a waiver of the SEC, or with any national securities exchange, or distributed by rights under this Section 5.1(j)(a) for purposes of Section 5.1(j)(b).
(b) Until the earlier of (i) the Fall-Away of Purchaser Rights and (ii) at such time as the Purchaser Parties have waived in writing its rights under Section 5.1(j)(a) above (but in no event earlier than the date on which the Company to its stockholders generallyannounces it earnings release for the fiscal quarter ended September 30, as 2020), the case may be;
(h) promptly after Purchaser agrees that, without the same are delivered to the members prior written approval of the Board of DirectorsBoard, copies of all business plans the Purchaser will not, directly or indirectly, and other financial plans relating to the Company and/or will cause its Subsidiaries; andAffiliates not to:
(i) promptly following acquire, offer or seek to acquire, agree to acquire or make a proposal to acquire, by purchase or otherwise, any request therefor, such other information regarding the operations, business affairs and financial condition securities or direct or indirect rights to acquire any securities of the Company or any Subsidiaryof its Affiliates, including any securities convertible into or exchangeable for any such securities, any options or other derivative securities or contracts or instruments in any way related to the price of Ordinary Shares or any material asset or property of the Company or any subsidiary; provided, that the Purchaser and its Affiliates may acquire first lien or second lien debt securities (which, for the avoidance of doubt, shall extend to any secured debt security that is either senior or pari passu in ranking to the Notes) to the extent the proceeds of such first lien or second lien debt securities are not applied to the redemption or repurchase in full of the Notes;
(ii) make or encourage or participate in any “solicitation” of “proxies”, knowingly seek to influence any Person with respect to voting securities of the Company, call or seek to call a meeting of the Company’s shareholders or initiate any shareholder proposal for action by the Company’s shareholders; make any public announcement with respect to any offer or an interest in an extraordinary transaction involving the Company;
(iii) disclose any intention or plan inconsistent with the foregoing or other action seeking to influence the management of the Company or take any action that would, in effect, require the Company to make a public announcement regarding the possibility of a transaction or any of the events described in this Section 5.1(j)(b); or
(iv) enter into any discussions or arrangements with any third party (including, without limitation, security holders of the Company, but excluding, for the avoidance of doubt, the Purchaser) with respect to any of the foregoing, including, without limitation, forming, joining or in any way participating in a “group” (as defined in Section 13(d)(3) of the Exchange Act) with any third party with respect to any securities of the Company or otherwise in connection with any of the foregoing; provided, however, that nothing in this Section 5.1(j)(b) will (1) limit the Purchaser’s ability to vote any of its Ordinary Shares, privately make and submit to the Company and/or the Board any proposal that is intended by the Purchaser to be made and submitted on a non-publicly disclosed or announced basis (and would not reasonably be expect to require public disclosure by any Person) or otherwise exercise rights under this Agreement, the Securities and Warrant Shares, or compliance with the terms participate in a rights offering made to all holders of Ordinary Shares of the this Agreement Company, or any Related Document, as (2) apply to Affiliates of the Purchasers Purchaser that are effectively walled off by customary information barriers or restrict trading in broad-based indexes in which the securities of the Company may reasonably requestbe an immaterial component.
Appears in 1 contract
Information Rights. The From and after the end of the first full Fiscal Quarter following the Effective Date, the Company shall furnish to each Purchaser who holds at least 5% of the Common Stock on a fully diluted as if converted basis (and regardless to each of GE and Midwest if such Purchaser holds at least a majority of the Series B Shares such Purchaser purchased hereunder):Member concurrently:
(a) within 105 No later than one hundred and eighty (180) calendar days after the end of each fiscal year (orFiscal Year of the Company, if required to be filed with the SEC sooner, then concurrently with such filing), its Form 10-K containing its audited consolidated balance sheet of the Company as at the end of such Fiscal Year and related the consolidated statements of income, stockholders' equity and cash flows as and changes in the Members’ equity of the end of and Company for such yearFiscal Year, setting forth forth, in each case case, in comparative form the figures for the previous fiscal yearimmediately preceding Fiscal Year and, all reported on in each case, which shall not be required to include footnotes, accompanied by PriceWaterhouseCoopers or other an audit report of independent certified public accountants of recognized national standing (without any qualification or exception as to thereon, which accountants shall be selected by the scope of such audit) to the effect that such consolidated financial statements present fairly in all material respects the financial condition and results of operations of the Company and its consolidated Subsidiaries on a consolidated basis in accordance with GAAP consistently appliedBoard;
(b) within 105 No later than forty-five (45) calendar days after the end of each fiscal year Fiscal Quarter of the Company for the first three (or, if required to be filed 3) Fiscal Quarters of a Fiscal Year (commencing with the SEC sooner, then concurrently with such filingfirst full Fiscal Quarter following the Effective Date), its the consolidated balance sheets sheet of the Company as at the end of such Fiscal Quarter and related the consolidated statements of income, stockholders' equity and cash flows as and changes in the Members’ equity of the end Company for the portion of and for such yearthe Fiscal Year then ended, setting forth in each the case in comparative form the figures for the previous fiscal year, all certified by one of its Financial Officers as presenting fairly in all material respects the results of operations of the Company on a consolidated basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments and the absence of footnotes;
(c) within 60 days after the end of each of the first three fiscal quarters of each fiscal year (or, if required to be filed with the SEC sooner, then concurrently with such filing), its Form 10-Q containing its consolidated balance sheet and related statements of income, stockholders' equity and cash flows as of and changes in the end of and for such fiscal quarter and the then elapsed portion of the fiscal year, setting forth in each case Members’ equity in comparative form the figures for the corresponding period or periods of (orthe previous Fiscal Year, and, in the case of the balance sheet, as of the end of) the previous fiscal year;
(d) within 60 days after the end of each of the first three fiscal quarters of each fiscal year, its consolidated such balance sheet and related statements of income, stockholders' equity and cash flows as of the end of and for such fiscal quarter and the then elapsed portion of the fiscal year, setting forth in each case in comparative form the figures for the corresponding period or periods of (or, in the case last day of the balance sheetprevious Fiscal Year, as of and in each case, which shall not be required to include footnotes and shall not be required to be reviewed by the end of) the budget and previous fiscal year, all certified by one of its Financial Officers as presenting fairly in all material respects the results of operations of the Company on a consolidated basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments and the absence of footnotesaccountants;
(ei) within 30 days after Upon a Member’s reasonable request and at such Member’s sole cost and expense, such additional financial information as shall be required in order for each Member and its Affiliates to comply with any applicable reporting requirements under (A) the end of each month which is neither a fiscal year end nor a fiscal quarter end, its consolidated balance sheet and related statements of income, stockholders' equity and cash flows as of the end of and for such month Securities Act and the then elapsed portion of the fiscal year, setting forth in each case in comparative form the figures for the corresponding period or periods of (or, in the case of the balance sheet, as of the end of) the previous fiscal year, all certified by one of its Financial Officers as presenting fairly in all material respects the results of operations of the Company on a consolidated basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments and the absence of footnotes;
(f) by no later than December 15 of each fiscal year, a budget and business plan for the immediately succeeding fiscal year in the form approved by the Company's board of directors, in form, scope and detail satisfactory to the Purchasers and on a quarterly basis for each fiscal quarter of such succeeding fiscal year;
(g) promptly after the same become publicly availableExchange Act, (to the extent not available through electronic meansB) copies of all periodic and other reports, proxy statements and other materials filed by the Company or any Subsidiary with the SEC, or any Governmental Agency succeeding to any or all of the functions of the SEC, or with any national securities exchangeexchange or automated quotation system, or distributed (C) any other rules or regulations promulgated by a Governmental Authority with jurisdiction over such Member or its Affiliates and (ii) any reports expressly required to be delivered to the Company pursuant to any of the Main Project Agreements; provided, that, for the avoidance of doubt, the foregoing obligations shall not require the Company to disclose Intel IP to any such Member; provided, further, that in no event shall Intel Member or any of its stockholders generally, as Affiliates be required to provide any such requested information that is not readily available in scope or form at the case may be;
(h) promptly after the same are delivered to the members time of the Board of Directors, copies of all business plans and other financial plans relating to the Company and/or its Subsidiariessuch request; and
(d) Upon a Member’s reasonable request and at such Member’s sole cost and expense, information necessary to enable each Member (or its direct or indirect owners) to (i) promptly following prepare its U.S. federal, state or local income or non-U.S. Tax returns, (ii) make any request therefor, such other information regarding the operations, business affairs and financial condition of Tax elections with respect to its direct or indirect investment in the Company or any Subsidiaryand its Subsidiaries (if any), or compliance (iii) make any other determinations with respect to Taxes with respect to its direct or indirect investment in the terms Company and its Subsidiaries (if any); provided, that, for the avoidance of the doubt, in no event shall any such information related to Tax matters provided pursuant to this Agreement or any Related Document, as the Purchasers may reasonably requestSection 6.5(d) constitute Financial Information.
Appears in 1 contract
Information Rights. (a) The Company shall, and shall furnish to each Purchaser who holds at least 5cause its Subsidiaries to, permit (i) any holder of Senior Preferred Stock and (ii) the FRG Investors for so long as any FRG Investor and/or an Affiliate thereof (and any Permitted Transferees thereof) Beneficially Own shares of Common Stock, in the aggregate, in excess of 10% of the Common Stock (on a fully diluted as if an as-converted basis basis) (clauses (i) and regardless (ii) together, the “Information Rights Holders”), upon the reasonable request of any such Information Rights Holder to each of GE provide such Information Rights Holder and Midwest if such Purchaser holds at least a majority its authorized representatives with reasonable access during normal business hours, and upon reasonable advance written notice, to the books and records of the Series B Shares such Purchaser purchased hereunderCompany and its Subsidiaries.
(b) Without limiting the foregoing, the Company shall, and shall cause its Subsidiaries to, deliver to the FRG Investors the following (provided that the public filing with the SEC of any of the following shall satisfy the delivery requirements to the FRG Investors set forth herein):
(ai) within 105 90 days after the end of each fiscal year of the Company (or, if or such later date as Form 10-K of the Company is required to be filed with the SEC sooner, then concurrently with such filingSEC), its Form 10-K containing its audited consolidated balance sheet and related audited consolidated statements of incomeoperations, stockholders' shareholders’ equity and cash flows as of the end of and for such fiscal year, and related notes thereto, setting forth in each case in comparative form the figures for the previous fiscal year, all prepared in accordance with generally accepted auditing standards and reported on by PriceWaterhouseCoopers or other an independent public accountants of recognized national standing (without any qualification or exception as to the scope of such audit) to the effect that such consolidated financial statements present fairly in all material respects the financial condition and condition, results of operations and cash flow of the Company and its consolidated Subsidiaries on a consolidated basis in accordance with GAAP consistently applied;
(b) within 105 days after the end of each fiscal year (or, if required to be filed with the SEC sooner, then concurrently with such filing), its consolidated balance sheets and related statements of income, stockholders' equity and cash flows as of the end of and for such year, setting forth in each case in comparative form the figures for the previous fiscal year, all certified by one of its Financial Officers as presenting fairly in all material respects the results of operations of the Company on a consolidated basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments and the absence of footnotes;
(cii) within 60 45 days after the end of each of the first three fiscal quarters of each fiscal year of the Company (or, if required to be filed with the SEC sooner, then concurrently with or such filing), its later date as Form 10-Q containing of the Company), its unaudited consolidated balance sheet and related unaudited consolidated statements of income, stockholders' equity operations and cash flows as of the end of and for such fiscal quarter and the then elapsed portion of the fiscal year, setting forth in each case in comparative form the figures for the corresponding period or periods of (or, in the case of the balance sheet, as of the end of) the previous fiscal year;
(diii) within 60 days after concurrently with the end of each of the first three fiscal quarters of each fiscal yeardelivery thereof to BRF Finance Co., its consolidated balance sheet and related statements of incomeLLC, stockholders' equity and cash flows as of the end of and for such fiscal quarter and the then elapsed portion of the fiscal yeara Delaware limited liability, setting forth or otherwise promptly following a request therefor by an FRG Investor, in each case in comparative form the figures for the corresponding period or periods of (orcase, in the case respect of the balance sheet, as any indebtedness of the end of) the budget and previous fiscal year, all certified by one of its Financial Officers as presenting fairly in all material respects the results of operations of the Company on a consolidated basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments and the absence of footnotes;
(e) within 30 days after the end of each month which is neither a fiscal year end nor a fiscal quarter end, its consolidated balance sheet and related statements of income, stockholders' equity and cash flows as of the end of and for such month and the then elapsed portion of the fiscal year, setting forth in each case in comparative form the figures for the corresponding period or periods of (or, in the case of the balance sheet, as of the end of) the previous fiscal year, all certified by one of its Financial Officers as presenting fairly in all material respects the results of operations of the Company on a consolidated basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments and the absence of footnotes;
(f) by no later than December 15 of each fiscal year, a budget and business plan for the immediately succeeding fiscal year in the form approved by the Company's board of directors, in form, scope and detail satisfactory to the Purchasers and on a quarterly basis for each fiscal quarter of such succeeding fiscal year;
(g) promptly after the same become publicly available, (to the extent not available through electronic means) copies of all periodic and other reports, proxy statements and other materials filed by the Company or any Subsidiary with under that certain Term Loan and Security Agreement, dated as of December 18, 2023, by and among the SEC, or any Governmental Agency succeeding to any or all of the functions of the SEC, or with any national securities exchange, or distributed by the Company to its stockholders generallyCompany, as parent and guarantor, Conn Appliances, Inc., a Texas corporation, Conn Credit I, LP, a Texas limited partnership, Conn Credit Corporation, Inc., a Texas corporation, and W.S. Badcock LLC, a Florida limited liability company, as borrowers, the case may be;
financial institutions from time to time party thereto as lenders and BRF Finance Co., LLC, as administrative agent and collateral agent for the lenders (h) promptly after the same are delivered to the members of the Board of Directors“BRF Facility”), copies of all business plans documents, reports, information or other materials provided to (or that would needed to have been provided to) such lender under the BRF Facility as in effect on the date hereof and other financial plans relating to the Company and/or its Subsidiariesirrespective of whether such indebtedness remains outstanding; and
(iiv) promptly following any a request therefor, such all other documents, reports, information regarding the operations, business affairs or other materials requested to satisfy any and financial condition of the Company all FRG Investor obligations to any bank or any Subsidiary, or compliance with the terms of the this Agreement or any Related Document, as the Purchasers may reasonably requestlender thereof.
Appears in 1 contract
Information Rights. The Company shall furnish the following information to each Purchaser who holds at least 5% Preferred Holder for so long as such Preferred Holder owns any shares of the Common Stock on a fully diluted as if converted basis (and regardless to each of GE and Midwest if such Purchaser holds at least a majority of the Series A Preferred or Series B Shares such Purchaser purchased hereunder):Preferred:
(a) within 105 ninety (90) days after the end of each fiscal year (orof the Company, if required to be filed with the SEC sooner, then concurrently with such filing), its Form 10-K containing its an audited consolidated balance sheet of the Company and its subsidiaries as of the end of such fiscal year and the related consolidated statements of income, stockholders' equity and cash flows as of the end of and for such year, setting forth in each case in comparative form the figures for the previous fiscal yearyear then ended (provided, all reported on by PriceWaterhouseCoopers or other independent public accountants of recognized national standing (without that, at any qualification or exception as to the scope of such audit) to the effect time that such consolidated financial statements present fairly in all material respects the financial condition and results of operations of the Company has at least one class of equity securities registered under the Securities Act, in the event that the Company shall timely and its consolidated Subsidiaries on a consolidated basis properly file with the Commission, in accordance with GAAP consistently appliedapplicable Commission rules and regulations, a request for extension of the time period in which the Company is obligated to file with the Commission the financial statements referenced in this clause (a), the time period in which the Company must deliver to the Preferred Holders such financial statements pursuant to this clause (a) shall be correspondingly be extended);
(b) within 105 forty-five (45) days after the end of each fiscal year quarter (orother than the last fiscal quarter in each fiscal year), if required an unaudited consolidated balance sheet of the Company and its Subsidiaries and the related unaudited consolidated statements of income, stockholders' equity and cash flows, such consolidated balance sheet to be filed with as of the SEC sooner, then concurrently with end of such filing), its quarter and such consolidated balance sheets and related statements of income, stockholders' equity and cash flows as to be for such quarter and for the period from the beginning of the fiscal year to the end of and for such yearquarter (provided, setting forth in each case in comparative form the figures for the previous fiscal yearthat, all certified by one of its Financial Officers as presenting fairly in all material respects the results of operations of at any time that the Company on a consolidated basis has at least one class of equity securities registered under the Securities Act, in the event that the Company shall timely and properly file with the Commission, in accordance with GAAP consistently appliedapplicable Commission rules and regulations, subject a request for extension of the time period in which the Company is obligated to normal year-end audit adjustments and file with the absence of footnotesCommission the financial statements referenced in this clause (b), the time period in which the Company must deliver to the Preferred Holders such financial statements pursuant to this clause (b) shall be correspondingly be extended);
(c) within 60 days after if prepared by the end Company in the ordinary course of each business, as promptly as reasonably practicable following such preparation, monthly unaudited consolidated balance sheets of the first three fiscal quarters of each fiscal year (or, if required to be filed with Company and its subsidiaries and the SEC sooner, then concurrently with such filing), its Form 10-Q containing its related monthly unaudited consolidated balance sheet and related statements of income, stockholders' equity and cash flows as of the end of and for such fiscal quarter and the then elapsed portion of the fiscal year, setting forth in each case in comparative form the figures for the corresponding period or periods of (or, in the case of the balance sheet, as of the end of) the previous fiscal yearflows;
(d) within 60 at least thirty (30) days after prior to the end of each of the first three fiscal quarters of each fiscal year, its consolidated balance sheet and related statements of income, stockholders' equity and cash flows as of the end of and for such fiscal quarter and the then elapsed portion of the fiscal year, setting forth in each case in comparative form the figures for the corresponding period or periods of (or, in the case of the balance sheet, as of the end of) the budget and previous fiscal year, all certified by one of its Financial Officers as presenting fairly in all material respects the results of operations of the Company on a consolidated basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments and the absence of footnotes;
(e) within 30 days after the end of each month which is neither a fiscal year end nor a fiscal quarter end, its consolidated balance sheet and related statements of income, stockholders' equity and cash flows as of the end of and for such month and the then elapsed portion of the fiscal year, setting forth in each case in comparative form the figures for the corresponding period or periods of (or, in the case of the balance sheet, as of the end of) the previous fiscal year, all certified by one of its Financial Officers as presenting fairly in all material respects the results of operations of the Company on a consolidated basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments and the absence of footnotes;
(f) by no later than December 15 start of each fiscal year, a budget and business plan for the immediately succeeding fiscal year in the form approved by copy of the Company's board of directors, in form, scope and detail satisfactory to the Purchasers and on a quarterly basis proposed annual budget for each fiscal quarter of such succeeding fiscal year;
(g) promptly after the same become publicly available, (to the extent not available through electronic means) copies of all periodic and other reports, proxy statements and other materials filed by the Company or any Subsidiary with the SEC, or any Governmental Agency succeeding to any or all of the functions of the SEC, or with any national securities exchange, or distributed by the Company to its stockholders generally, as the case may be;
(h) promptly after the same are delivered to the members of the Board of Directors, copies of all business plans and other financial plans relating to the Company and/or its Subsidiaries; and
(ie) promptly following any request therefor, such other additional information regarding the operations, business affairs and financial condition of about the Company or any Subsidiary, or compliance with the terms of the this Agreement or any Related Document, as the Purchasers may such Preferred Holder reasonably requestrequests.
Appears in 1 contract
Sources: Securities Purchase Agreement (General Devices Inc)
Information Rights. The Company shall furnish to each Purchaser who holds at least 5% of the Common Stock on a fully diluted as if converted basis (and regardless to each of GE and Midwest if such Purchaser holds at least a majority of the Series B Shares such Purchaser purchased hereunder):
(a) The Corporation shall deliver the following reports to each Stockholder holding more than five percent (5%) of the outstanding Common Stock Equivalents:
(i) as soon as available, and in any event within 105 thirty (30) calendar days after the end of each month of each fiscal year of the Corporation (or, if required subject to be filed with the SEC sooner, then concurrently with such filingextension as agreed to by Eos), unaudited consolidated and consolidating balance sheets of the Corporation and its Form 10-K containing its audited consolidated balance sheet and related statements of income, stockholders' equity and cash flows Subsidiaries as of the end of such period, and for such year, setting forth in each case in comparative form consolidated and consolidating statements of income and cash flows of the figures Corporation and its Subsidiaries for the previous fiscal yearperiod then ended, all reported on by PriceWaterhouseCoopers or other independent public accountants including a report containing a management’s discussion and analysis of recognized national standing (without any qualification or exception such financial results prepared in conformity with GAAP, except as otherwise noted therein, and subject to the scope absence of such audit) footnotes and to the effect that such consolidated financial statements present fairly in all material respects the financial condition and results of operations of the Company and its consolidated Subsidiaries on a consolidated basis in accordance with GAAP consistently appliedyear-end adjustments;
(bii) as soon as available and in any event within 105 days after the end of each fiscal year forty-five (or, if required to be filed with the SEC sooner, then concurrently with such filing), its consolidated balance sheets and related statements of income, stockholders' equity and cash flows as of the end of and for such year, setting forth in each case in comparative form the figures for the previous fiscal year, all certified by one of its Financial Officers as presenting fairly in all material respects the results of operations of the Company on a consolidated basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments and the absence of footnotes;
(c45) within 60 calendar days after the end of each of the first three fiscal quarters of each fiscal year of the Corporation (or, if required subject to be filed with the SEC sooner, then concurrently with such filingextension as agreed to by Eos), unaudited consolidated and consolidating balance sheets of the Corporation and its Form 10-Q containing its consolidated balance sheet and related statements of income, stockholders' equity and cash flows Subsidiaries as of the end of such period, and for such fiscal quarter consolidated and the then elapsed portion consolidating statements of income and cash flows of the fiscal year, setting forth in each case in comparative form the figures Corporation and its Subsidiaries for the corresponding period or periods then ended prepared in conformity with GAAP, except as otherwise noted therein, and subject to the absence of (or, in the case of the balance sheet, as of the footnotes and to year-end of) the previous fiscal yearadjustments;
(diii) as soon as available, and in any event within 60 ninety (90) calendar days after the end of each fiscal year of the first three fiscal quarters of each fiscal yearCorporation (subject to extension as agreed to by Eos), its (A) a consolidated and consolidating balance sheet of the Corporation and related statements of income, stockholders' equity and cash flows its Subsidiaries as of the end of such year, and consolidated and consolidating statements of income and cash flows of the Corporation and its Subsidiaries for the year then ended prepared in conformity with GAAP, consistently applied and except as otherwise noted therein, together with an auditor's report thereon of a public accounting firm of established national reputation and (B) the audited annual financial statements for such fiscal quarter year (including the notes, exhibits or schedules thereto and any affirmations or certificates filed therewith);
(iv) to the then elapsed portion extent the Corporation (or any Subsidiary thereof) is required to prepare such financial statements (or obtain such audit letters), any financial statements actually prepared by the Corporation (or any such Subsidiary), or audit letters actually obtained by the Corporation (or any such Subsidiary) from any auditor of such financial statements, in each case as soon as available to the Corporation (or such Subsidiary);
(v) as soon as available, and in any event within fifteen (15) calendar days prior to the beginning of the fiscal yearyear to which the annual budget shall apply, setting forth in each case in comparative form the figures for the corresponding period or periods of (or, in the case annual budget and business plan of the balance sheet, as of the end of) the budget Corporation and previous fiscal year, all certified by one of its Financial Officers as presenting fairly in all material respects the results of operations of the Company on a consolidated basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments and the absence of footnotes;Subsidiaries; and
(evi) as soon as available, and in any event within 30 fifteen (15) calendar days after the end of each month which is neither a fiscal calendar year end nor a fiscal quarter end, its consolidated balance sheet and related statements of income, stockholders' equity and cash flows as of the end of and for such month and the then elapsed portion Corporation, updated copies of the fiscal Corporation’s Credit Policies and Procedures and Origination Parameters, provided that such Credit Policies and Procedures have materially changed or have been amended in such calendar year, setting forth in each case in comparative form the figures for the corresponding period or periods of (or, in the case of the balance sheet, as of the end of) the previous fiscal year, all certified by one of its Financial Officers as presenting fairly in all material respects the results of operations of the Company on a consolidated basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments and the absence of footnotes;.
(fb) by no later than December 15 of The Corporation and its Subsidiaries shall provide to each fiscal yearInvestor and RCC, a budget true and business plan for the immediately succeeding fiscal year in the form approved by the Company's board of directors, in form, scope and detail satisfactory to the Purchasers and on a quarterly basis for each fiscal quarter of such succeeding fiscal year;
(g) promptly after the same become publicly available, (to the extent not available through electronic means) correct copies of all periodic documents, reports, financial data and other reports, proxy statements information as an Investor or RCC may reasonably request. The Corporation shall permit any authorized representatives designated by an Investor or RCC to visit and other materials filed by the Company or inspect any Subsidiary with the SEC, or any Governmental Agency succeeding to any or all of the functions properties of the SEC, or with any national securities exchange, or distributed by the Company to its stockholders generally, as the case may be;
(h) promptly after the same are delivered to the members of the Board of Directors, copies of all business plans Corporation and other financial plans relating to the Company and/or its Subsidiaries; and
(i) promptly following any request therefor, including its and their books of account, and to discuss its and their affairs, finances and accounts with its and their officers, all at such other information regarding the operations, business affairs and financial condition of the Company or any Subsidiary, or compliance with the terms of the this Agreement or any Related Document, times as the Purchasers an Investor may reasonably request.
Appears in 1 contract
Information Rights. The Company shall furnish to each Purchaser who holds at least 5% of the Common Stock on a fully diluted as if converted basis (and regardless to each of GE and Midwest if such Purchaser holds at least a majority of the Series B Shares such Purchaser purchased hereunder):
(a) within 105 days Until the consummation of an IPO, the Company will deliver, or will cause to be delivered to (x) each Avista Entity until such time as such Avista Entity ceases to own any Equity Securities and (y) Kinderhook so long as Kinderhook, together with its Permitted Transferees, own at least 50% of Kinderhook’s Initial Shares of Common Stock, the following:
(i) as soon as available after the end of each fiscal year of the Company, and in any event within one hundred and twenty (or120) days thereafter, if required to be filed with the SEC sooner, then concurrently with such filing), its Form 10-K containing its audited either (A) a consolidated balance sheet and related consolidated statements of income, stockholders' equity retained earnings and cash flows of the Company and its Subsidiaries or (B) (x) a consolidated balance sheet and consolidated statements of income, retained earnings and cash flows of IDQ Acquisition and its Subsidiaries and (y) a consolidated balance sheet and consolidated statements of income, retained earnings and cash flows of AAG OpCo and its Subsidiaries, in each case, as of the end of and such fiscal year or for such year, as applicable, prepared in accordance with GAAP and setting forth in each case in comparative form the figures for the previous fiscal year, all reported on in reasonable detail and accompanied by PriceWaterhouseCoopers or other the opinion of independent public accountants of recognized national standing selected by the Company; and
(without ii) as soon as available after the end of the first, second and third quarterly accounting periods in each fiscal year of the Company, and in any qualification or exception as to the scope event within sixty (60) days thereafter, either (A) a consolidated balance sheet and consolidated statements of such audit) to the effect that such consolidated financial statements present fairly in all material respects the financial condition income, retained earnings and results of operations cash flows of the Company and its consolidated Subsidiaries on or (B) (x) a consolidated basis in accordance with GAAP consistently applied;
(b) within 105 days after the end of each fiscal year (or, if required to be filed with the SEC sooner, then concurrently with such filing), its balance sheet and consolidated balance sheets and related statements of income, stockholders' equity retained earnings and cash flows of IDQ Acquisition and its Subsidiaries and (y) a consolidated balance sheet and consolidated statements of income, retained earnings and cash flows of AAG OpCo and its Subsidiaries, in each case, as of the end of such quarterly period, or for such period and for such yearthe current fiscal year to date, setting forth in each case in comparative form the figures for the previous fiscal yearas applicable, all certified by one of its Financial Officers as presenting fairly in all material respects the results of operations of the Company on a consolidated basis prepared in accordance with GAAP consistently applied, (subject to normal year-end audit adjustments and the absence of footnotes;
(cnotes thereto) within 60 days after the end of each of the first three fiscal quarters of each fiscal year (or, if required to be filed with the SEC sooner, then concurrently with such filing), its Form 10-Q containing its consolidated balance sheet and related statements of income, stockholders' equity and cash flows as of the end of and for such fiscal quarter and the then elapsed portion of the fiscal year, setting forth in each case in comparative form the figures for the corresponding period or periods of (or, in the case of the balance sheet, as of the end of) the previous fiscal year;
(d) within 60 days after the end of each of the first three fiscal quarters of each fiscal year, its consolidated balance sheet and related statements of income, stockholders' equity and cash flows as of the end of and for such fiscal quarter and the then elapsed portion of the fiscal year, setting forth in each case in comparative form the figures for the corresponding period or periods of (or, in the case of the balance sheet, as of the end of) the budget and previous fiscal year, all certified by one of its Financial Officers as presenting fairly in all material respects the results of operations of the Company on a consolidated basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments and the absence of footnotes;
(e) within 30 days after the end of each month which is neither a fiscal year end nor a fiscal quarter end, its consolidated balance sheet and related statements of income, stockholders' equity and cash flows as of the end of and for such month and the then elapsed portion of the fiscal year, setting forth in each case in comparative form the figures for the corresponding period or periods of (or, in the case of the balance sheet, as of the end of) the previous fiscal year, all in reasonable detail and certified by one the principal financial or accounting officer of the Company. The Company shall determine in its Financial Officers sole discretion whether to provide the financial statements contemplated by clause (A) or clause (B) of each of clauses (i) and (ii) above; provided, however, that if such financial statements contemplated by clause (A) of either clause (i) or (ii) above are available at the time financial statements are delivered by the Company pursuant to this Section 8.01(a), the Company shall deliver the financial statements contemplated by clause (A) of clause (i) or (ii) above.
(b) Until the consummation of an IPO, the Company will deliver, or will cause to be delivered to Kinderhook, so long as presenting fairly in all material respects the results Kinderhook, together with its Permitted Transferees, own at least 50% of operations Kinderhook’s Initial Shares of Common Stock, either (A) a consolidated balance sheet and consolidated statements of income, retained earnings and cash flows of the Company on and its Subsidiaries or (B) (x) a consolidated basis balance sheet and consolidated statements of income, retained earnings and cash flows of IDQ Acquisition and its Subsidiaries and (y) a consolidated balance sheet and consolidated statements of income, retained earnings and cash flows of AAG OpCo and its Subsidiaries, in accordance with GAAP consistently appliedeach case, subject to normal year-as of the end audit adjustments and the absence of footnotes;
(f) by no later than December 15 of each fiscal year, a budget and business plan for the immediately succeeding fiscal year in the form approved by the Company's board of directors, in form, scope and detail satisfactory to the Purchasers and on a quarterly basis for each fiscal quarter of such succeeding fiscal year;
(g) promptly after the same become publicly available, (to the extent not available through electronic means) copies of all periodic and other reports, proxy statements and other materials filed by the Company or any Subsidiary with the SECmonth, or any Governmental Agency succeeding to any or all of the functions of the SECfor such period, or with any national securities exchangebut only if, or distributed by the Company to its stockholders generally, when and as the case may be;
(h) promptly after the same are delivered to the members of the Board of Directors, copies of all business plans and other financial plans relating to the Company and/or its Subsidiaries; and
(i) promptly following any request therefor, such other information regarding the operations, business affairs and financial condition of the Company or any Subsidiary, or compliance with the terms of the this Agreement or any Related Document, as the Purchasers may reasonably requestAvista Funds.
Appears in 1 contract
Information Rights. The Company shall furnish to each Purchaser who holds (i) For so long as (x) the Preferred Investors hold at least 510% of the Preferred Stock issued pursuant to the Purchase Agreement or (y) the Common Investors in the aggregate hold, or “beneficially own” (within the meaning of Rule 13d-3 under the Exchange Act) at least 10% of the issued and outstanding Common Stock on a fully diluted as if converted basis (and regardless of the Corporation, at any time that the Corporation is not required to file periodic reports with the SEC, the Corporation shall deliver to each of GE and Midwest if such Purchaser holds at least a majority of the Series B Shares such Purchaser purchased hereunder):Preferred Investor and/or Common Investor, as applicable:
(aA) as soon as practicable, but in any event within 105 ninety days after the end of each fiscal year (orof the Corporation, if required to be filed with for each of the SEC soonerCorporation and each of its Subsidiaries, then concurrently with an income statement for such filing)fiscal year, its Form 10-K containing its audited consolidated a balance sheet sheet, and related statements statement of income, stockholders' stockholder’s equity and cash flows as of the end of and for such year, setting forth in each case in comparative form the figures for the previous fiscal year, all reported on by PriceWaterhouseCoopers or other independent public accountants and a statement of recognized national standing (without any qualification or exception as cash flows for such fiscal year, such year-end financial reports to the scope of such audit) to the effect that such consolidated financial statements present fairly be in all material respects the financial condition and results of operations of the Company and its consolidated Subsidiaries on a consolidated basis reasonable detail, prepared in accordance with GAAP consistently appliedGAAP, and audited and certified by a nationally recognized accounting firm selected by the Corporation and reasonably acceptable to the Majority Common Investors;
(bB) as soon as practicable, but in any event within 105 days after the end of each fiscal year (or, if required to be filed with the SEC sooner, then concurrently with such filing), its consolidated balance sheets and related statements of income, stockholders' equity and cash flows as of the end of and for such year, setting forth in each case in comparative form the figures for the previous fiscal year, all certified by one of its Financial Officers as presenting fairly in all material respects the results of operations of the Company on a consolidated basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments and the absence of footnotes;
(c) within 60 thirty days after the end of each of the first three fiscal quarters of each fiscal year (orof the Corporation, if required to be filed with for the SEC soonerCorporation and each of its Subsidiaries, then concurrently with an unaudited income statement for such filing)quarter, its Form 10-Q containing its consolidated statement of cash flows for such quarter and an unaudited balance sheet and related statements of income, stockholders' equity and cash flows as of the end of and for such fiscal quarter and the then elapsed portion of the fiscal year, setting forth in each case in comparative form the figures for the corresponding period or periods of (or, in the case of the balance sheet, as of the end of) the previous fiscal yearquarter;
(dC) as promptly as practicable but in any event within 60 thirty days after of the end of each month, an unaudited income statement and statement of the first three fiscal quarters of each fiscal yearcash flows for such month, its consolidated and a balance sheet for and related statements of income, stockholders' equity and cash flows as of the end of such month, in reasonable detail;
(D) with respect to the financial statements called for in subsections (B) and for such fiscal quarter and (C) of this Section 7(d)(i), an instrument executed by the then elapsed portion Chief Financial Officer or Chief Executive Officer of the fiscal year, setting forth Corporation and certifying that such financial statements were prepared in each case in comparative form accordance with GAAP consistently applied with prior practice for earlier periods (with the figures for the corresponding period or periods exception of (or, in the case of the balance sheet, as of the end offootnotes that may be required by GAAP) the budget and previous fiscal year, all certified by one of its Financial Officers as presenting fairly present in all material respects the financial condition of the Corporation and its Subsidiaries and its results of operations of operation for the Company on a consolidated basis in accordance with GAAP consistently appliedperiod specified, subject to normal year-end audit adjustments and the absence of footnotesadjustment;
(eE) within 30 days after notices of events that have had or could reasonably be expected to have a material and adverse effect on the end of each month which is neither Corporation and its Subsidiaries, taken as a fiscal year end nor a fiscal quarter end, its consolidated balance sheet and related statements of income, stockholders' equity and cash flows as of the end of and for such month and the then elapsed portion of the fiscal year, setting forth in each case in comparative form the figures for the corresponding period or periods of (or, in the case of the balance sheetwhole, as soon as practicable following the occurrence of the end of) the previous fiscal year, all certified by one of its Financial Officers as presenting fairly in all material respects the results of operations of the Company on a consolidated basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments and the absence of footnotes;
(f) by no later than December 15 of each fiscal year, a budget and business plan for the immediately succeeding fiscal year in the form approved by the Company's board of directors, in form, scope and detail satisfactory to the Purchasers and on a quarterly basis for each fiscal quarter of any such succeeding fiscal year;
(g) promptly after the same become publicly available, (to the extent not available through electronic means) copies of all periodic and other reports, proxy statements and other materials filed by the Company or any Subsidiary with the SEC, or any Governmental Agency succeeding to any or all of the functions of the SEC, or with any national securities exchange, or distributed by the Company to its stockholders generally, as the case may be;
(h) promptly after the same are delivered to the members of the Board of Directors, copies of all business plans and other financial plans relating to the Company and/or its Subsidiariesevent; and
(iF) such other information relating to the financial condition, business, prospects or corporate affairs of the Corporation and its Subsidiaries as any Preferred Investor or Common Investor may from time to time reasonably request.
(ii) Notwithstanding the foregoing, at all times, the Corporation shall use commercially reasonable efforts to deliver the financial statements listed Section 7(d)(i)(A), Section 7(d)(i)(B) and Section 7(d)(i)(C) promptly following any request thereforafter such statements are internally available.
(iii) For so long as (A) the Preferred Investors hold at least 10% of the Preferred Stock issued pursuant to the Purchase Agreement or (B) the Common Investors in the aggregate hold, or “beneficially own” (within the meaning of Rule 13d-3 under the Exchange Act) at least 10% of the issued and outstanding Common Stock of the Corporation, (a) the Corporation shall permit each Preferred Investor and/or Common Investor, as applicable, together with such Investor’s consultants and advisors, to visit and inspect the Corporation’s and its Subsidiaries’ properties, to examine their respective books of account and records and to discuss the Corporation’s and its Subsidiaries’ affairs, finances and accounts with their respective officers and employees, all at such reasonable times as may be requested by such Investor, and (b) the Corporation shall, with reasonable promptness, provide to each Preferred Investor and/or Common Investor, as applicable, such other information regarding the operations, business affairs and financial condition of data concerning the Company or any Subsidiary, or compliance with the terms of the this Agreement or any Related Document, Corporation and its Subsidiaries as the Purchasers such Investor may reasonably request.
(iv) For so long as (A) the Trailer Investors hold at least 10% of the Preferred Stock issued pursuant to the Purchase Agreement or (B) the Trailer Investors in the aggregate hold, or “beneficially own” (within the meaning of Rule 13d-3 under the Exchange Act) at least 10% of the issued and outstanding Common Stock of the Corporation, the Corporation shall pay the reasonable fees and expenses of any consultant or professional advisor that the Majority Trailer Investors may engage in connection with the Trailer Investors’ interests in the Corporation.
(v) For so long as (A) the Preferred Investors hold at least 10% of the Preferred Stock issued pursuant to the Purchase Agreement or (B) the Common Investors in the aggregate hold, or “beneficially own” (within the meaning of Rule 13d-3 under the Exchange Act) at least 10% of the issued and outstanding Common Stock of the Corporation, the Corporation shall provide to each Preferred Investor and/or Common Investor, as applicable, not later than thirty days before the beginning of each fiscal year of the Corporation, but in any event, ten days prior to presenting such budget to the Board, an annual budget prepared on a monthly basis for the Corporation and its Subsidiaries for such fiscal year (displaying anticipated statements of income and cash flows and balance sheets), and promptly upon preparation thereof any other significant budgets or forecasts prepared by the Corporation and any revisions of such annual or other budgets or forecasts.
Appears in 1 contract
Sources: Securities Purchase Agreement (Wabash National Corp /De)
Information Rights. The Company shall furnish to each Purchaser who holds at least 5% of the Common Stock on a fully diluted as if converted basis (and regardless to each of GE and Midwest if such Purchaser holds at least a majority of the Series B Shares such Purchaser purchased hereunder):
(a) within 105 MYT Holdco shall deliver to the Trustee:
(i) by the earlier of (A) ninety (90) days after the end of each fiscal year of NM Group (or, if required to or such longer period as may be filed with provided by the SEC sooner, if NM Group were then concurrently subject to SEC reporting requirements as a non-accelerated filer) and (B) the date NM Group discloses to holders of its secured notes earnings information with such filing), its Form 10-K containing its audited consolidated balance sheet and related statements of income, stockholders' equity and cash flows as of respect to the end of and for such year, setting forth in each case in comparative form the figures for the previous corresponding fiscal year, all reported on by PriceWaterhouseCoopers or other independent public accountants the audited annual financial statements of recognized national standing the MYT Operating Entities for the most recently ended fiscal year of the MYT Operating Entities (without any qualification or exception as which currently ends prior to the scope corresponding fiscal year of such audit) to the effect that such consolidated financial statements present fairly in all material respects the financial condition and results of operations of the Company and its consolidated Subsidiaries on a consolidated basis NM Group), prepared in accordance with German GAAP, together with a qualitative or quantitative explanation of the material applicable differences between German GAAP consistently appliedand GAAP;
(bii) within 105 days after by the end earlier of each fiscal year (or, if required to be filed with the SEC sooner, then concurrently with such filing), its consolidated balance sheets and related statements of income, stockholders' equity and cash flows as of the end of and for such year, setting forth in each case in comparative form the figures for the previous fiscal year, all certified by one of its Financial Officers as presenting fairly in all material respects the results of operations of the Company on a consolidated basis in accordance with GAAP consistently applied, subject to normal yearA) forty-end audit adjustments and the absence of footnotes;
five (c45) within 60 days after the end of each of the first three fiscal quarters of each fiscal year of NM Group (oror such longer period as may be provided by the SEC if NM Group were then subject to SEC reporting requirements as a non-accelerated filer) and (B) the date NM Group discloses to holders of its secured notes earnings information with respect to the corresponding fiscal quarter, if required unaudited quarterly financial statements of the MYT Operating Entities for the fiscal quarter most recently ended of the MYT Operating Entities (which currently ends prior to be filed the corresponding fiscal quarter of NM Group) and, commencing with the SEC soonerMYT Operating Entities’ “fiscal quarter ending in March 2020, then concurrently with such filing), its Form 10-Q containing its consolidated balance sheet and related statements of income, stockholders' equity and cash flows as the corresponding fiscal quarter of the end of and for such fiscal quarter and the then elapsed portion of the prior fiscal year, setting prepared in accordance with German GAAP, together with a qualitative or quantitative explanation of the material applicable differences between German GAAP and GAAP;
(iii) with each set of consolidated financial statements referred to in clauses (i) and (ii) of this Section 4.06(12)(a) above, a narrative discussion of the key financial information of the MYT Operating Entities consistent with those customarily provided with earnings press releases; and
(iv) within the time period specified for filing current reports on Form 8-K by the SEC as if such items were reportable on a Form 8-K, notice of any (a) issuances of equity interests (including any debt security that is convertible into, or exchangeable for, capital stock of MYT Holdco) by MYT Holdco that are junior to the Series A Preferred Stock, (b) issuances of Indebtedness other than in the ordinary course of business pursuant to the exceptions set forth in each case Section 4.06(2) above and (c) Permitted Investments.
(b) Notwithstanding the foregoing, the obligations in comparative form the figures for the corresponding period or periods of (or, in the case this Section 4.06(12) may be satisfied with respect to financial information of the balance sheetMYT Operating Entities by furnishing the applicable financial statements of MYT Holdco or any Subsidiary thereof that is the direct or indirect parent of NMG Germany GmbH; provided that such information is accompanied by consolidating information that explains in reasonable detail the material differences between the information relating to such parent, as on the one hand, and the information relating to the MYT Operating Entities on a stand-alone basis, on the other hand; and provided further that such direct or indirect parent of NMG Germany GmbH shall not conduct, transact or otherwise engage in any business or operations other than relating to its direct or indirect ownership of all of the end Equity Interests in, and management of, NMG Germany GmbH.
(c) MYT Holdco shall promptly furnish any information reasonably requested by Holders or beneficial holders of at least 5% of the previous fiscal year;outstanding Notes to confirm that MYT Holdco and its subsidiaries are in compliance with the covenants set forth under this Section 4.06.
(d) within 60 days after Documents required to be delivered pursuant to this Section 4.06(12) may be delivered electronically and if so delivered, shall be deemed to have been delivered on the end date on which (i) (x) such documents become available on the SEC’s Electronic Data Gathering Analysis and Retrieval (“▇▇▇▇▇”) website or (y) NMG Germany GmbH (or any direct or indirect parent of each of the first three fiscal quarters of each fiscal yearNMG Germany GmbH) posts such documents, or provides a link thereto on its consolidated balance sheet and related statements of incomewebsite; or (ii) such documents are posted on NMG Germany GmbH’s behalf on IntraLinks/IntraAgency or another similar non-public, stockholders' equity and cash flows as of the end of and for such fiscal quarter and the then elapsed portion of the fiscal year, setting forth in each case in comparative form the figures for the corresponding period or periods of (or, in the case of the balance sheet, as of the end of) the budget and previous fiscal year, all certified by one of its Financial Officers as presenting fairly in all material respects the results of operations of the Company on a consolidated basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments and the absence of footnotes;password protected datasite.
(e) within 30 days after Any Person seeking access to such datasite will be required to represent to and agree with the end of each month which is neither a fiscal year end nor a fiscal quarter endMYT Operating Entities and any such parent (and by accepting such financial information, its consolidated balance sheet such Person will be deemed to have so represented and related statements of income, stockholders' equity agreed with the MYT Operating Entities and cash flows as such parent) to the good faith satisfaction of the end MYT Operating Entities or such parent that:
(i) it is a holder of and for such month and the then elapsed portion of the fiscal year, setting forth in each case in comparative form the figures for the corresponding period a Note or periods of (or, a bona fide prospective investor in the case of the balance sheet, as of the end of) the previous fiscal year, all certified by one of its Financial Officers as presenting fairly in all material respects the results of operations of the Company on a consolidated basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments and the absence of footnotesNotes;
(fii) by no later than December 15 if it is a prospective purchaser of each fiscal yearthe Notes, it is (a) a budget and business plan for “qualified institutional buyer” (as defined in Rule 144A under the immediately succeeding fiscal year Securities Act), (b) a “non U.S. Person” (as defined in Regulation S under the form approved by Securities Act) or (c) an institutional “accredited investor” as defined in Rule 501(a)(1), (2), (3) or (7) under the Company's board of directors, in form, scope and detail satisfactory to the Purchasers and on a quarterly basis for each fiscal quarter of such succeeding fiscal yearSecurities Act;
(giii) promptly after it will not use the same become publicly available, (to the extent not available through electronic means) copies information in violation of all periodic and other reports, proxy statements and other materials filed by the Company applicable securities laws or any Subsidiary with the SEC, or any Governmental Agency succeeding to any or all of the functions of the SEC, or with any national securities exchange, or distributed by the Company to its stockholders generally, as the case may beregulations;
(hiv) promptly after it will not communicate the same are delivered information to any Person and will keep the members information confidential;
(v) it will use such information only in connection with evaluating, monitoring or disposing of an investment in the Board of Directors, copies of all business plans and other financial plans relating to the Company and/or its SubsidiariesNotes; and
(ivi) promptly following it will not use such information in any request therefor, such other information regarding manner intended to compete with the operations, business affairs and financial condition of the Company or any Subsidiary, or compliance with the terms of the this Agreement or any Related Document, as the Purchasers may reasonably requestMYT Operating Entities.
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Sources: Guarantee and Collateral Agreement (Neiman Marcus Group LTD LLC)
Information Rights. The As long as a Qualified Public Offering has not been effected, the Company as well as any of its subsidiaries shall furnish deliver to each Purchaser who holds at least 5% of Shareholder the Common Stock on a fully diluted as if converted basis (and regardless to each of GE and Midwest if such Purchaser holds at least a majority of the Series B Shares such Purchaser purchased hereunder):following information:
(a) within 105 90 (ninety) days after the end of each fiscal year of the respective company (or, if required to be filed with i) a consolidated audited financial statement of the SEC sooner, then concurrently with such filing), its Form 10-K containing its Company and audited consolidated balance sheet and related financial statements of income, stockholders' equity and cash flows any of its subsidiaries as of the end of and for such year, setting forth in each case in comparative form the figures for the previous fiscal year, all reported on (ii) the related consolidated statements of income, shareholders’ equity and cash flows for the fiscal year then ended, prepared in accordance with Austrian GAAP and restated in accordance with US-GAAP or IAS (as determined by PriceWaterhouseCoopers or other the Supervisory Board) and both versions certified by a firm of independent public accountants of recognized national international standing selected by the Shareholders Meeting (without the Annual Financial Statement), and (iii) any qualification or exception as related letters from such accounting firm. The Annual Financial Statement should also include comparative statements from the prior fiscal year and the most recent 12-month budget delivered by the respective company pursuant to the scope of such audit) to the effect that such consolidated financial statements present fairly in all material respects the financial condition and results of operations of the Company and its consolidated Subsidiaries on a consolidated basis in accordance with GAAP consistently appliedthis section 7.1 below;
(b) within 105 30 days after the end of each fiscal year (or, if required to be filed with the SEC sooner, then concurrently with such filing), its consolidated balance sheets and related statements of income, stockholders' equity and cash flows as of the end of and for such year, setting forth in each case in comparative form the figures for the previous fiscal year, all certified by one of its Financial Officers as presenting fairly in all material respects the results of operations of the Company on a consolidated basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments and the absence of footnotes;
(cthirty) within 60 days after the end of each of the first three fiscal quarters of each fiscal year of the respective company (or, if required to be filed with other than the SEC sooner, then concurrently with such filing), its Form 10-Q containing its last quarter in each fiscal year) a consolidated balance sheet of the Company and an unconsolidated balance sheet of any of its subsidiaries and the related consolidated and unconsolidated statements of income, stockholders' ’ equity and cash flows flows, audited, unless otherwise approved by the Supervisory Board, and prepared in accordance with US-GAAP or IAS (in case of the consolidated documents) and Austrian-GAAP (in case of the unconsolidated documents) and certified by the management board of the respective company (the Quarterly Balance Sheet); The Quarterly Balance Sheet shall be accompanied by the quarterly management report describing the current status of the respective company and its respective operations and prospects. The Quarterly Balance Sheet should be prepared as of the end of such quarter with consolidated statements of income and cash flows to be for such quarter and for such fiscal quarter and the then elapsed portion period from the beginning of the fiscal year, setting forth in each case in comparative form the figures for the corresponding period or periods of (or, in the case of the balance sheet, as of year to the end of) the previous fiscal yearof such quarter;
(dc) within 60 days after the end of each of the first three fiscal quarters of each fiscal year, its consolidated balance sheet and related statements of income, stockholders' equity and cash flows as of the end of and for such fiscal quarter and the then elapsed portion of the fiscal year, setting forth in each case in comparative form the figures for the corresponding period or periods of 20 (or, in the case of the balance sheet, as of the end oftwenty) the budget and previous fiscal year, all certified by one of its Financial Officers as presenting fairly in all material respects the results of operations of the Company on a consolidated basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments and the absence of footnotes;
(e) within 30 days after the end of each month which is neither a fiscal management report reflecting the key financial figures in regard to income/loss, cash flow and capital expenditure of the respective company;
(d) no later than year end nor a fiscal quarter end, its consolidated balance sheet and related statements of incomeunconsolidated capital and operating expense budget, stockholders' equity cash flow projections and cash flows as of the end of income and for such month and the then elapsed portion of the fiscal year, setting forth in each case in comparative form the figures loss projections for the corresponding period or periods respective company in respect of (or, in the case of the balance sheet, as of the end of) the previous such fiscal year, all certified by one of its Financial Officers as presenting fairly itemized in all material respects the results of operations reasonable detail and prepared on a monthly basis, and, promptly after preparation, any revisions to any of the Company on a consolidated basis foregoing;
(e) promptly, and in accordance with GAAP consistently appliedany event within five days after notice has been received by the respective company, subject of any material litigation or an adverse claim, dispute or any other developments which may be deemed material to normal year-end audit adjustments and operations, assets, or properties of the absence of footnotesrespective company;
(f) by no later than December 15 of each fiscal yearpromptly, a budget and business plan for the immediately succeeding fiscal year in the form approved by the Company's board of directors, in form, scope and detail satisfactory from time to the Purchasers and on a quarterly basis for each fiscal quarter of such succeeding fiscal year;
(g) promptly after the same become publicly available, (to the extent not available through electronic means) copies of all periodic and other reports, proxy statements and other materials filed by the Company or any Subsidiary with the SEC, or any Governmental Agency succeeding to any or all of the functions of the SEC, or with any national securities exchange, or distributed by the Company to its stockholders generally, as the case may be;
(h) promptly after the same are delivered to the members of the Board of Directors, copies of all business plans and other financial plans relating to the Company and/or its Subsidiaries; and
(i) promptly following any request therefortime, such other information regarding the business, prospects, financial condition, operations, business property or affairs and financial condition of the Company or any Subsidiary, or compliance with respective company that a Shareholder reasonably may request; and
(g) annual budgets after approval by the terms Supervisory Board of the this Agreement or any Related Document, as the Purchasers may reasonably requestrespective company.
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