Additional Governance Provisions. (a) Prior to a Qualified IPO, with respect to each of the Sponsors and, at the request of any such Sponsor, each Affiliate thereof that directly or indirectly has an interest in Echo, in each case that is intended to qualify as a “venture capital operating company” as defined in the Plan Asset Regulations (each, a “VCOC Stockholder”), for so long as the VCOC Stockholder, directly or through one or more conduit Subsidiaries, continues to hold any shares of Common Stock in each case, without limitation or prejudice of any the rights provided to the Sponsors hereunder, Echo and the Company shall, with respect to each such VCOC Stockholder: (i) Provide such VCOC Stockholder or its representative designated to the Sponsors in writing with the following: (1) the right to visit and inspect any of the offices and properties of Echo and its Subsidiaries and inspect and copy the books and records of Echo and its Subsidiaries, at such times as the VCOC Stockholder shall reasonably request; (2) as soon as available and in any event within sixty (60) days after the end of each of the first three (3) quarters of each fiscal year of Echo, consolidated balance sheets of Echo and its Subsidiaries as of the end of such period, and consolidated statements of income and cash flows of Echo and its Subsidiaries for the period then ended, in each case 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; (3) as soon as available and in any event within one-hundred twenty (120) days after the end of each fiscal year of Echo, a consolidated balance sheet of Echo and its Subsidiaries as of the end of such year, and consolidated statements of income and cash flows of Echo and its Subsidiaries for the year then ended prepared in conformity with generally accepted accounting principles in the United States applied on a consistent basis, except as otherwise noted therein, together with an auditor’s report thereon of a firm of established national reputation; (4) to the extent Echo or any of its Subsidiaries is required by law or pursuant to the terms of any outstanding indebtedness of Echo or such Subsidiary to prepare such reports, any annual reports, quarterly reports and other periodic reports pursuant to Sections 13 or 15(d) of the Exchange Act, actually prepared by Echo or such Subsidiary as soon as available; (5) subject to Section 3.3(a)(iii) below and upon the request of such VCOC Stockholder, copies of all materials provided to the Board of Directors at substantially the same time as provided to the members of the Board of Directors and, if requested, copies of the materials provided to the board of directors (or equivalent governing body) of any Subsidiary of Echo, provided, that Echo or such Subsidiary shall be entitled to exclude portions of such materials to the extent providing such portions would be likely to result in the waiver of attorney-client privilege; and (6) such other information as the VCOC Stockholder may reasonably request. (ii) Make appropriate officers of Echo and its Subsidiaries and members of the Board of Directors and the board of directors or equivalent governing body of each of Echo’s Subsidiaries available periodically and at such times as reasonably requested by such VCOC Stockholder for consultation with such VCOC Stockholder or its designated representative with respect to matters relating to the business and affairs of Echo and its Subsidiaries, including significant changes in management personnel and compensation of employees, introduction of new products or 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 or compromise of significant litigation; (iii) To the extent consistent with applicable law (and with respect to events which require public disclosure, only following Echo’s public disclosure thereof through applicable securities law filings or otherwise), inform the VCOC Stockholder or its 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 certificate of incorporation or by-laws of Echo or any of its Subsidiaries, and to provide the VCOC Stockholder or its designated representative with the right to consult with Echo and its Subsidiaries with respect to such actions; and (iv) Provide such VCOC Stockholder or its designated representative with such other rights of consultation which such VCOC Stockholder’s counsel may determine to be reasonably necessary under applicable legal authorities promulgated after the date hereof to qualify its investment in Echo as a “venture capital investment” for purposes of the Plan Assets Regulation. (b) To the extent the financial and other information required to be delivered to any Stockholder pursuant to this Section 3.3 is contained in a document or report filed with the SEC via the SEC’s XXXXX system, such financial and other information shall be deemed to be delivered to the Stockholders for purposes of this Section 3.3 at the time such document or report is so filed with the SEC. (c) Echo agrees to consider, in good faith, the recommendations of each VCOC Stockholder or its 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 Echo. (d) Echo or the Board of Directors may require such VCOC Stockholder to execute and deliver a confidentiality agreement reasonably acceptable to Echo prior to delivering any proprietary and confidential information about Echo in the event that Blackstone also executes and delivers to Echo an agreement containing equivalent confidentiality obligations and restrictions. (e) To the extent permitted by antitrust, competition or any other applicable law, each Stockholder agrees and acknowledges that the Sponsor Directors may share confidential, non-public information about Echo, the Company and their respective Subsidiaries with their respective directors, officers and employees, and Representatives. (f) The Stockholders hereby agree, notwithstanding anything to the contrary in any other agreement or at law or in equity, that when any Sponsor or the Other Investors that are its Affiliates takes any action under this Agreement solely in its capacity as a Stockholder to give or withhold its consent, such Sponsor or the Other Investors that are its Affiliates shall have no duty (fiduciary or other) to consider the interests of Echo, the Company or any of their respective Subsidiaries or the other Stockholders and may act exclusively in its own interest and shall have only the duty to act in good faith; provided, however, that the foregoing shall in no way affect the obligations of the parties hereto to comply with the provisions of this Agreement or provisions of applicable law that may not be waived.
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Samples: Stockholders Agreement (PF2 SpinCo, Inc.), Stockholders Agreement (Change Healthcare Inc.), Stockholders Agreement (Change Healthcare Inc.)
Additional Governance Provisions. (a) Prior to a Qualified IPO, with respect to each of the Sponsors and, at the request of any such Sponsor, each Affiliate thereof that directly or indirectly has an interest in Echo, in each case that is intended to qualify as a “venture capital operating company” as defined in the Plan Asset Regulations (each, a “VCOC Stockholder”), for so long as the VCOC Stockholder, directly or through one or more conduit Subsidiaries, continues to hold any shares of Common Stock in each case, without limitation or prejudice of any the rights provided to the Sponsors hereunder, Echo and the Company shall, with respect to each such VCOC Stockholder:
(i) Provide such VCOC Stockholder or its representative designated to the Sponsors in writing with the following:
(1) the right to visit and inspect any of the offices and properties of Echo and its Subsidiaries and inspect and copy the books and records of Echo and its Subsidiaries, at such times as the VCOC Stockholder shall reasonably request;
(2) as soon as available and in any event within sixty (60) days after the end of each of the first three (3) quarters of each fiscal year of Echo, consolidated balance sheets of Echo and its Subsidiaries as of the end of such period, and consolidated statements of income and cash flows of Echo and its Subsidiaries for the period then ended, in each case 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;
(3) as soon as available and in any event within one-hundred twenty (120) days after the end of each fiscal year of Echo, a consolidated balance sheet of Echo and its Subsidiaries as of the end of such year, and consolidated statements of income and cash flows of Echo and its Subsidiaries for the year then ended prepared in conformity with generally accepted accounting principles in the United States applied on a consistent basis, except as otherwise noted therein, together with an auditor’s report thereon of a firm of established national reputation;
(4) to the extent Echo or any of its Subsidiaries is required by law or pursuant to the terms of any outstanding indebtedness of Echo or such Subsidiary to prepare such reports, any annual reports, quarterly reports and other periodic reports pursuant to Sections 13 or 15(d) of the Exchange Act, actually prepared by Echo or such Subsidiary as soon as available;
(5) subject to Section 3.3(a)(iii) below and upon the request of such VCOC Stockholder, copies of all materials provided to the Board of Directors at substantially the same time as provided to the members of the Board of Directors and, if requested, copies of the materials provided to the board of directors (or equivalent governing body) of any Subsidiary of Echo, provided, that Echo or such Subsidiary shall be entitled to exclude portions of such materials to the extent providing such portions would be likely to result in the waiver of attorney-client privilege; and
(6) such other information as the VCOC Stockholder may reasonably request.
(ii) Make appropriate officers of Echo and its Subsidiaries and members of the Board of Directors and the board of directors or equivalent governing body of each of Echo’s Subsidiaries available periodically and at such times as reasonably requested by such VCOC Stockholder for consultation with such VCOC Stockholder or its designated representative with respect to matters relating to the business and affairs of Echo and its Subsidiaries, including significant changes in management personnel and compensation of employees, introduction of new products or 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 or compromise of significant litigation;
(iii) To the extent consistent with applicable law (and with respect to events which require public disclosure, only following Echo’s public disclosure thereof through applicable securities law filings or otherwise), inform the VCOC Stockholder or its 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 certificate of incorporation or by-laws of Echo or any of its Subsidiaries, and to provide the VCOC Stockholder or its designated representative with the right to consult with Echo and its Subsidiaries with respect to such actions; and
(iv) Provide such VCOC Stockholder or its designated representative with such other rights of consultation which such VCOC Stockholder’s counsel may determine to be reasonably necessary under applicable legal authorities promulgated after the date hereof to qualify its investment in Echo as a “venture capital investment” for purposes of the Plan Assets Regulation.
(b) To the extent the financial and other information required to be delivered to any Stockholder pursuant to this Section 3.3 is contained in a document or report filed with the SEC via the SEC’s XXXXX system, such financial and other information shall be deemed to be delivered to the Stockholders for purposes of this Section 3.3 at the time such document or report is so filed with the SEC.
(c) Echo agrees to consider, in good faith, the recommendations of each VCOC Stockholder or its 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 Echo.
(d) Echo or the Board of Directors may require such VCOC Stockholder to execute and deliver a confidentiality agreement reasonably acceptable to Echo prior to delivering any proprietary and confidential information about Echo in the event that Blackstone also executes and delivers to Echo an agreement containing equivalent confidentiality obligations and restrictions.
(e) To the extent permitted by antitrust, competition or any other applicable law, each Stockholder agrees and acknowledges that the Sponsor Directors may share confidential, non-public information about Echo, the Company and their respective Subsidiaries with their respective directors, officers and employees, and Representatives.
(f) The Stockholders hereby agree, notwithstanding anything to the contrary in any other agreement or at law or in equity, that when any Sponsor or the Other Investors that are its Affiliates takes any action under this Agreement solely in its capacity as a Stockholder to give or withhold its consent, such Sponsor or the Other Investors that are its Affiliates shall have no duty (fiduciary or other) to consider the interests of Echo, the Company or any of their respective Subsidiaries or the other Stockholders and may act exclusively in its own interest and shall have only the duty to act in good faith; provided, however, that the foregoing shall in no way affect the obligations of the parties hereto to comply with the provisions of this Agreement or provisions of applicable law that may not be waived.
Appears in 1 contract
Samples: Agreement of Contribution and Sale (Change Healthcare Holdings, Inc.)
Additional Governance Provisions. (a) Prior to a Qualified IPO, with With respect to each of the Sponsors and, at the request of any such Sponsor, each Affiliate thereof that directly or indirectly has an interest in Echothe 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 Stockholder”), for so long as the VCOC Stockholder, directly or through one or more conduit Subsidiariessubsidiaries, continues to hold any shares of Common Stock in each case, without limitation or prejudice of any the rights provided to the Sponsors hereunder, Echo and the Company shall, with respect to each such VCOC Stockholder:
(i) Provide such VCOC Stockholder or its designated representative designated with the following (it being agreed that until notice to the Sponsors in writing Company to the contrary from Blackstone or H&F (as applicable), the members of the Board of Directors designated by Blackstone or H&F, if any, shall act as agent for each applicable VCOC Stockholder that is an Affiliate of Blackstone or H&F, as applicable, with respect to the following:Company’s provision of the items required pursuant to paragraphs (2) through (4) below):
(1) the right to visit and inspect any of the offices and properties of Echo the Company and its Subsidiaries subsidiaries and inspect and copy the books and records of Echo the Company and its Subsidiariessubsidiaries, at such times as the VCOC Stockholder shall reasonably request;
(2) as soon as available and in any event within sixty (60) days after the end of each of the first three (3) quarters of each fiscal year of Echothe Company, consolidated balance sheets of Echo the Company and its Subsidiaries subsidiaries as of the end of such period, and consolidated statements of income and cash flows of Echo the Company and its Subsidiaries subsidiaries for the period then ended, in each case 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;
(3) as soon as available and in any event within one-hundred twenty (120) days after the end of each fiscal year of Echothe Company, a consolidated balance sheet of Echo the Company and its Subsidiaries subsidiaries as of the end of such year, and consolidated statements of income and cash flows of Echo the Company and its Subsidiaries subsidiaries for the year then ended prepared in conformity with generally accepted accounting principles in the United States applied on a consistent basis, except as otherwise noted therein, together with an auditor’s report thereon of a firm of established national reputation;
(4) to the extent Echo the Company or any of its Subsidiaries subsidiaries is required by law or pursuant to the terms of any outstanding indebtedness of Echo the Company or such Subsidiary subsidiary to prepare such reports, any annual reports, quarterly reports and other periodic reports pursuant to Sections 13 or 15(d) of the Exchange Act, actually prepared by Echo the Company or such Subsidiary subsidiary as soon as available;
(5) subject to Section 3.3(a)(iii3.3(a)(iv) below and upon the request of such VCOC Stockholder, copies of all materials provided to the Board of Directors at substantially the same time as provided to the members of the Board of Directors and, if requested, copies of the materials provided to the board of directors (or equivalent governing body) of any Subsidiary subsidiary of Echothe Company, provided, provided that Echo the Company or such Subsidiary subsidiary shall be entitled to exclude portions of such materials to the extent providing such portions would be likely to result in the waiver of attorney-client privilege; and
(6) such other information as the VCOC Stockholder may reasonably request.
(ii) Make appropriate officers of Echo the Company and its Subsidiaries subsidiaries and members of the Board of Directors and the board of directors or equivalent governing body of each of Echothe Company’s Subsidiaries subsidiaries available periodically and at such times as reasonably requested by such VCOC Stockholder for consultation with such VCOC Stockholder or its designated representative with respect to matters relating to the business and affairs of Echo the Company and its Subsidiariessubsidiaries, including significant changes in management personnel and compensation of employees, introduction of new products or 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 or compromise of significant litigation;
(iii) Give such VCOC Stockholder, if such VCOC Stockholder does not at such time have the right to designate one or more directors pursuant to Section 3.1(a) above, the right to designate one (1) non-voting board observer who will be entitled to attend all meetings of the Board of Directors and the board of directors or equivalent governing body of each of the Company’s subsidiaries and participate in all deliberations of the Board of Directors and the board of directors or equivalent governing body of each of the Company’s subsidiaries; provided (A) that such observer shall have no voting rights with respect to actions taken or elected not to be taken by the Board of Directors and the board of directors or equivalent governing body of each of the Company’s subsidiaries and (B) that the Company and each of the Company’s subsidiaries shall be entitled to remove such observer from such portions of a meeting of the Board of Directors or the board of directors or equivalent governing body of each of the Company’s subsidiaries to the extent such observer’s presence would be likely to result in the waiver of any attorney client privilege;
(iv) To the extent consistent with applicable law (and with respect to events which require public disclosure, only following Echothe Company’s public disclosure thereof through applicable securities law filings or otherwise), inform the VCOC Stockholder or its 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 certificate of incorporation or by-laws of Echo the Company or any of its Subsidiariessubsidiaries, and to provide the VCOC Stockholder or its designated representative with the right to consult with Echo the Company and its Subsidiaries subsidiaries with respect to such actions; and
(ivv) Provide such VCOC Stockholder or its designated representative with such other rights of consultation which such VCOC Stockholder’s counsel may determine to be reasonably necessary under applicable legal authorities promulgated after the date hereof to qualify its investment in Echo the Company as a “venture capital investment” for purposes of the Plan Assets Regulation.
(b) To ; provided, that the extent Company or the financial Board of Directors may require H&F to execute and other deliver a confidentiality agreement reasonably acceptable to the Company prior to delivering any proprietary and confidential information required about the Company in the event that Blackstone also executes and delivers to the Company an agreement containing equivalent confidentiality obligations and restrictions; provided, further, that if the Company shall terminate, limit the applicability of, or otherwise waive any provisions of, the agreement containing confidentiality obligations and restrictions entered into with Blackstone or its applicable Affiliates, it shall promptly notify H&F in writing thereof, and the confidentiality agreement entered into between H&F and the Company shall be automatically terminated, amended, and/or waived to be delivered equivalent to any Stockholder pursuant such agreement entered into with, and applicable to, Blackstone or its applicable Affiliates (and such written notice shall set forth the Company’s irrevocable agreement terminating, amending, waiving or otherwise modifying the agreement entered into with H&F to this Section 3.3 is contained in a document or report filed with provide for the SEC via the SEC’s XXXXX system, such financial and other information shall be deemed to be delivered to the Stockholders for purposes of this Section 3.3 at the time such document or report is so filed with the SEC.
(c) Echo foregoing). The Company agrees to consider, in good faith, the recommendations of each VCOC Stockholder or its 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 Echothe Company.
(d) Echo or the Board of Directors may require such VCOC Stockholder to execute and deliver a confidentiality agreement reasonably acceptable to Echo prior to delivering any proprietary and confidential information about Echo in the event that Blackstone also executes and delivers to Echo an agreement containing equivalent confidentiality obligations and restrictions.
(eb) To the extent permitted by antitrust, competition or any other applicable law, each Stockholder agrees and acknowledges that the Sponsor Directors directors designated by Blackstone and H&F may share confidential, non-public information about Echothe Company, the Company Intermediate Holdings, Emdeon and their respective Subsidiaries subsidiaries with (i) Blackstone and (ii) H&F and its Affiliates, including Xxxxxxx & Xxxxxxxx LLC, and its and their respective directors, officers and employees, and Representativesrespectively.
(fc) The Stockholders hereby agree, notwithstanding anything to the contrary in any other agreement or at law or in equity, that when any Sponsor or the Other Investors that are its Affiliates takes any action under this Agreement solely in its capacity as a Stockholder to give or withhold its consent, such Sponsor or the Other Investors that are its Affiliates shall have no duty (fiduciary or other) to consider the interests of Echothe Company, the Company Intermediate Holdings, Emdeon or any of their respective Subsidiaries subsidiaries or the other Stockholders and may act exclusively in its own interest and shall have only the duty to act in good faith; provided, however, that the foregoing shall in no way affect the obligations of the parties hereto to comply with the provisions of this Agreement or provisions of applicable law that may not be waived.
Appears in 1 contract
