Financial Information. The Company will furnish to each Major Holder the information set forth in this Section 7.2; provided, that the Company shall not be required to furnish such information to a Major Holder if the Board determines in good faith that such Major Holder is a competitor to the Company (provided that in no event shall Kinnevik (or its Affiliates) or Oak (or its Affiliates) be deemed to be a competitor to the Company and that, as of the Effective Date, Walgreens (and its Affiliates) is deemed to not be a competitor to the Company): (a) As soon as practicable after the end of each fiscal year of the Company, and in any event within one hundred fifty (150) days thereafter, a copy of the annual audited financial statements for such fiscal year for the Company and its Subsidiaries, if any, including therein balance sheets of the Company and its Subsidiaries, if any, as of the end of such fiscal year and statements of income and members’ equity and of cash flows of the Company for such fiscal year, setting forth in each case in comparative form the corresponding figures for the preceding fiscal year, all prepared in accordance with generally accepted accounting principles consistently applied (“GAAP”), all such consolidated statements to be duly certified by such independent public accountants of recognized national standing approved by the Board to prepare such reports; (b) As soon as available and in any event within forty-five (45) days after the end of each of the first three quarters of each fiscal year of the Company, an unaudited balance sheet of the Company and its Subsidiaries, if any, as of the end of such quarter and the related unaudited statements of income and members’ equity and of cash flows of the Company for the period commencing at the end of the previous fiscal year and ending with the end of such quarter, setting forth in each case in comparative form the corresponding figures for the corresponding period of the preceding fiscal year and the budget for such current year, all in reasonable detail and prepared in accordance with GAAP (subject to year-end audit adjustments and not including all footnotes thereto that may be required in accordance with GAAP); (c) Upon request (but not more frequently than the delivery of the financial statements described in Sections 7.2(a) and 7.2(b)), a statement showing the number of Units of each class and series of membership interests (including Profits Interests) and securities convertible into or exercisable for Units outstanding at the end of the applicable period, the Junior Units issuable upon conversion or exercise of any outstanding securities convertible or exercisable for Junior Units and the exchange ratio or exercise price applicable thereto, and the number of Units not yet issued but reserved for issuance under the Equity Incentive Plan, if any, all in sufficient detail as to permit the Preferred Unit Holders to calculate their respective percentage equity ownership in the Company; (d) As soon as available and in any event within thirty (30) days after the end of each calendar month, a statement of recognized revenue, bookings and retained earnings on a monthly basis, compared against the corresponding figures from such month from the preceding fiscal year and the budget for such current year; and (e) Not later than sixty (60) days after December 31 of each year, an annual budget and quarterly and monthly operating budgets for such fiscal year in a form and with such detail as may be acceptable to a majority of the Directors.
Appears in 3 contracts
Samples: Limited Liability Company Agreement (Walgreens Boots Alliance, Inc.), Limited Liability Company Agreement (Walgreens Boots Alliance, Inc.), Limited Liability Company Agreement (Walgreens Boots Alliance, Inc.)
Financial Information. The Company will furnish to each Major Holder or transferee thereof under Section 1.14 the information set forth in this Section 7.2; provided, that the Company shall not be required to furnish such information to a Major Holder if the Board determines in good faith that such Major Holder is a competitor to the Company (provided that in no event shall Kinnevik (or its Affiliates) or Oak (or its Affiliates) be deemed to be a competitor to the Company and that, as of the Effective Date, Walgreens (and its Affiliates) is deemed to not be a competitor to the Company):following reports:
(a) As soon as practicable after the end of each fiscal year of the Companyyear, and in any event within one hundred fifty twenty (150120) days thereafter, a copy of the annual audited financial statements for such fiscal year for the Company and its Subsidiaries, if any, including therein consolidated balance sheets of the Company and its Subsidiariessubsidiaries, if any, as of the end of such fiscal year year, and consolidated statements of income and members’ equity and of cash flows of the Company and its subsidiaries, if any, for such fiscal year, prepared in accordance with generally accepted accounting principles applied on a consistent basis and setting forth in each case in comparative form the corresponding figures for the preceding previous fiscal year, all prepared in accordance with generally accepted accounting principles consistently applied (“GAAP”), all such consolidated statements to be duly certified reasonable detail and audited by such independent public accountants of recognized national standing selected by the Company and approved by the Board to prepare such reportsBoard;
(b) As soon as available practicable after the end of each quarter, and in any event within forty-five (45) days after thereafter (other than the end of each of the first three quarters last calendar month of each fiscal year of the Companyyear), an unaudited consolidated balance sheet sheets of the Company and its Subsidiariessubsidiaries, if any, as of the end of such quarter the quarter, and the related unaudited consolidated statements of income and members’ equity and of cash flows of the Company and its subsidiaries, if any, for the period commencing at the end of the previous fiscal year and ending with the end of such quarter, prepared in accordance with generally accepted accounting principles applied on a consistent basis and setting forth in each case in comparative form the corresponding figures for the corresponding period of the preceding fiscal same quarter one year earlier; provided that footnotes and the budget for such current yearschedule disclosure appearing in audited financial statements shall not be required, all in reasonable detail and prepared in accordance with GAAP (subject to year-end audit adjustments and not including all footnotes thereto that may be required in accordance with GAAP)signed by the principal financial or accounting officer of the Company;
(c) Upon request As soon as practicable after the end of each month, and in any event within thirty (but not more frequently 30) days thereafter (other than the delivery last calendar month of each fiscal year), unaudited consolidated balance sheets of the financial statements described in Sections 7.2(a) Company and 7.2(b))its subsidiaries, a statement showing the number if any, as of Units of each class and series of membership interests (including Profits Interests) and securities convertible into or exercisable for Units outstanding at the end of the applicable period, the Junior Units issuable upon conversion or exercise of any outstanding securities convertible or exercisable for Junior Units and the exchange ratio or exercise price applicable theretomonth, and unaudited consolidated statements of income and cash flows of the number of Units not yet issued but reserved for issuance under the Equity Incentive PlanCompany and its subsidiaries, if any, for such month, prepared in accordance with generally accepted accounting principles applied on a consistent basis and setting forth in each case in comparative form the figures for the same month one year earlier; provided that footnotes and schedule disclosure appearing in audited financial statements shall not be required, all in sufficient reasonable detail as to permit and signed by the Preferred Unit Holders to calculate their respective percentage equity ownership in principal financial or accounting officer of the Company;
(d) As soon as available and practicable, but in any event within at least thirty (30) days after prior to the end beginning of each calendar monthfiscal year, a statement of recognized revenuebudget for the next fiscal year, bookings and retained earnings prepared on a monthly basis, compared against the corresponding figures from such month from the preceding fiscal year and the budget for such current year; and
(e) Not later than sixty (60) days after December 31 of each year, an annual budget and quarterly and monthly operating as soon as prepared, any other updated or revised budgets for such fiscal year in a form prepared by the Company and with such detail as may be acceptable to a majority of approved by the DirectorsBoard.
Appears in 3 contracts
Samples: Investors' Rights Agreement, Investors’ Rights Agreement (Obalon Therapeutics Inc), Investors’ Rights Agreement (Obalon Therapeutics Inc)
Financial Information. The Company will furnish mail the following reports to each Major Holder the information set forth in this Section 7.2; provided, that Purchaser for so long as the Company shall not be required to furnish such information to a Major Holder if the Board determines in good faith that such Major Holder Purchaser is a competitor to the Company (provided that in no event shall Kinnevik (or its Affiliates) or Oak (or its Affiliates) be deemed to be a competitor to the Company and that, as holder of any of the Effective Date, Walgreens (and its Affiliates) is deemed to not be a competitor to the Company):shares of Series B Preferred or shares of Conversion Stock:
(a) As soon as practicable after the end of each fiscal year of the Companyyear, and in any event within one hundred fifty (150) 90 days thereafter, a copy of the annual audited financial statements for such fiscal year for the Company and its Subsidiaries, if any, including therein consolidated balance sheets of the Company and its Subsidiariessubsidiaries, if any, as of the end of such fiscal year year, and consolidated statements of income operations and members’ equity and consolidated statements of cash flows of the Company and its subsidiaries, if any, for such fiscal year, prepared in accordance with generally accepted accounting principles and setting forth in each case in comparative form similar information of the corresponding figures for the preceding previous fiscal year, all in reasonable detail and audited by independent public accountants of national standing selected by the Company.
(b) As soon as practicable after the end of the first, second and third quarterly accounting periods in each fiscal year of the Company and in any event within 45 days thereafter, a consolidated balance sheet of the Company and its subsidiaries, if any, as of the end of each such quarterly period, and consolidated statements of operations and consolidated statements of cash flows of the Company and its subsidiaries, if any, for such period and for the current fiscal year to date, prepared in accordance with generally accepted accounting principles (other than for accompanying notes), all in reasonable detail and signed, subject to changes resulting from year-end audit adjustments, by the principal financial or accounting officer of the Company.
(c) Within 15 days after the end of each fiscal month, unaudited consolidated balance sheets of the Company as of the end of such month, unaudited consolidated statements of operations including income statements, and unaudited consolidated rolling cash flow projections for each month and for the current fiscal year to date. Such financial statements shall be prepared in accordance with generally accepted accounting principles consistently applied (“GAAP”other than accompanying notes), all such consolidated statements to be duly certified by such independent public accountants of recognized national standing approved by the Board to prepare such reports;
(b) As soon as available and in any event within forty-five (45) days after the end of each of the first three quarters of each fiscal year of the Company, an unaudited balance sheet of the Company and its Subsidiaries, if any, as of the end of such quarter and the related unaudited statements of income and members’ equity and of cash flows of the Company for the period commencing at the end of the previous fiscal year and ending with the end of such quarter, setting forth in each case in comparative form the corresponding figures for the corresponding period of the preceding fiscal year and the budget for such current year, all in reasonable detail and prepared in accordance with GAAP (subject to year-end audit adjustments and not including all footnotes thereto that may be required in accordance with GAAP);adjustments.
(cd) Upon request (but not more frequently than Promptly after each meeting or the delivery execution of an action by written consent, copies of the financial statements described in Sections 7.2(a) and 7.2(b)), a statement showing the number minutes of Units of each class and series of membership interests (including Profits Interests) and securities convertible into proceedings or exercisable for Units outstanding at the end actions by written consent of the applicable periodCompany's Board of Directors and shareholders.
(e) With reasonable promptness, such other information and data with respect to the Junior Units issuable upon conversion or exercise of any outstanding securities convertible or exercisable for Junior Units Company and the exchange ratio or exercise price applicable thereto, and the number of Units not yet issued but reserved for issuance under the Equity Incentive Planits subsidiaries, if any, all in sufficient detail as the Purchaser may from time to permit the Preferred Unit Holders to calculate their respective percentage equity ownership in the Company;time reasonably request.
(df) As soon For so long as available the Purchaser is eligible to receive reports under this Section 7.1, it shall also have the right, at its expense, to visit and in inspect any event within thirty (30) days after of the end properties of each calendar monththe Company or any of its subsidiaries, a statement to examine its books of recognized revenueaccount and records, bookings and retained earnings on a monthly basisto discuss their affairs, compared against the corresponding figures from finances and accounts with their officers, all at such month from the preceding fiscal year and the budget for such current year; and
(e) Not later than sixty (60) days after December 31 of each year, an annual budget and quarterly and monthly operating budgets for such fiscal year in a form and with such detail reasonable times as often as may be acceptable reasonably requested, provided, however, that the Company shall not be obligated to a majority provide any information, other than to the representatives of the Purchaser on the Board of Directors, that it reasonably considers to be a trade secret or to contain confidential information.
Appears in 3 contracts
Samples: Investment and Voting Agreement (Asi Group LLC), Investment Agreement (Las Vegas Discount Golf & Tennis Inc), Investment Agreement (Saint Andrews Golf Corp)
Financial Information. The Company will furnish to each Major Significant Holder or transferee thereof under Section 1.11 the information set forth in this Section 7.2; provided, that the Company shall not be required to furnish such information to a Major Holder if the Board determines in good faith that such Major Holder is a competitor to the Company (provided that in no event shall Kinnevik (or its Affiliates) or Oak (or its Affiliates) be deemed to be a competitor to the Company and that, as of the Effective Date, Walgreens (and its Affiliates) is deemed to not be a competitor to the Company):following reports:
(a) As soon as practicable after the end of each fiscal year of the Company, and in any event within one hundred fifty eighty (150180) days thereafter, a copy of the annual audited financial statements for such fiscal year for the Company and its Subsidiaries, if any, including therein consolidated balance sheets of the Company and its Subsidiariessubsidiaries, if any, as of the end of such fiscal year year, and consolidated statements of income and members’ equity and of cash flows of the Company and its subsidiaries, if any, for such fiscal year, prepared in accordance with U.S. generally accepted accounting principles applied on a consistent basis and setting forth in each case in comparative form the corresponding figures for the preceding previous fiscal year, all prepared in accordance with generally accepted accounting principles consistently applied (“GAAP”), all such consolidated statements to be duly audited and certified by such independent public accountants of recognized national standing selected by the Company and approved by the Board to prepare such reportsof Directors;
(b) As soon as available practicable after the end of each fiscal quarter, and in any event within forty-five sixty (4560) days after thereafter (other than the end of each of the first three quarters last fiscal quarter of each fiscal year of the Companyyear), an unaudited consolidated balance sheet sheets of the Company and its Subsidiariessubsidiaries, if any, as of the end of such quarter the quarter, and the related unaudited consolidated statements of income and members’ equity and of cash flows of the Company and its subsidiaries, if any, for the period commencing at the end of the previous fiscal year and ending with the end of such quarter, setting forth prepared in each case accordance with U.S. generally accepted accounting principles applied on a consistent basis; provided that such financial statements may be subject to normal year-end adjustments, and footnotes and schedule disclosure appearing in comparative form the corresponding figures for the corresponding period of the preceding fiscal year and the budget for such current yearaudited financial statements shall not be required, all in reasonable detail and prepared in accordance with GAAP (subject to year-end audit adjustments and not including all footnotes thereto that may be required in accordance with GAAP)detail;
(c) Upon request (but not more frequently than the delivery of the financial statements described in Sections 7.2(a) and 7.2(b)), a statement showing the number of Units of each class and series of membership interests (including Profits Interests) and securities convertible into or exercisable for Units outstanding at As soon as practicable after the end of the applicable periodeach month, the Junior Units issuable upon conversion or exercise of any outstanding securities convertible or exercisable for Junior Units and the exchange ratio or exercise price applicable thereto, and the number of Units not yet issued but reserved for issuance under the Equity Incentive Plan, if any, all in sufficient detail as to permit the Preferred Unit Holders to calculate their respective percentage equity ownership in the Company;
(d) As soon as available and in any event within thirty (30) days after thereafter (other than the last calendar month of each fiscal year), unaudited consolidated balance sheets of the Company and its subsidiaries, if any, as of the end of each calendar the month, and unaudited consolidated statements of income and cash flows of the Company and its subsidiaries, if any, for such month, prepared in accordance with U.S. generally accepted accounting principles applied on a statement consistent basis; provided that such financial statements may be subject to normal year-end adjustments, and footnotes and schedule disclosure appearing in audited financial statements shall not be required, all in reasonable detail; and
(d) As soon as practicable, but in any event no more than forty-five (45) days following the beginning of recognized revenueeach fiscal year, bookings and retained earnings a budget for such fiscal year, prepared on a monthly basis, compared against the corresponding figures from such month from the preceding fiscal year and the budget for such current year; and
(e) Not later than sixty (60) days , promptly after December 31 of each yearprepared, an annual budget and quarterly and monthly operating any other updated or revised budgets for such fiscal year in a form prepared by the Company and with such detail as may be acceptable to a majority approved by the Board of the Directors.
Appears in 3 contracts
Samples: Investors’ Rights Agreement, Investors’ Rights Agreement (Tandem Diabetes Care Inc), Investors’ Rights Agreement (Tandem Diabetes Care Inc)
Financial Information. The Company CNSI will furnish the following reports to each Major Holder the information set forth in this Section 7.2; provided, that the Company shall not be required to furnish such information to a Major Holder if the Board determines in good faith that such Major Holder is a competitor to the Company (provided that in no event shall Kinnevik (or its Affiliates) or Oak (or its Affiliates) be deemed to be a competitor to the Company and that, as of the Effective Date, Walgreens (and its Affiliates) is deemed to not be a competitor to the Company):VPLP:
(a1) As soon as practicable after the end of each fiscal year of the Companyyear, and in any event within one hundred fifty ninety (15090) days thereafter, a copy consolidated balance sheet of the annual audited financial statements for such fiscal year for the Company and its Subsidiaries, if any, including therein balance sheets of the Company and its Subsidiaries, if anyCNSI, as of at the end of such fiscal year year, and consolidated statements of income operations, accumulated earnings and members’ equity and of cash flows of the Company CNSI for such fiscal year, setting forth in each case in comparative form the corresponding figures for the preceding fiscal year, all prepared in accordance with generally accepted accounting principles consistently applied (“GAAP”)and setting forth in each case in comparative form the figures for the previous fiscal year, all such consolidated statements to be duly in reasonable detail audited (without scope limitations imposed by CNSI) and certified by such independent public accountants of recognized national standing approved by the Board to prepare such reportsstanding;
(b2) As soon as available practicable after the end of the first, second and third quarterly accounting periods in each fiscal year, and in any event within forty-five (45) days after the end of each of the first three quarters of each fiscal year of the Companythereafter, an a consolidated, unaudited balance sheet of the Company and its Subsidiaries, if any, CNSI as of the end of each such quarter quarterly period, and the related consolidated, unaudited statements of income operations, accumulated earnings and members’ equity and of cash flows of the Company CNSI for such period and for the period commencing at current fiscal year to date, prepared in accordance with generally accepted accounting principles consistently applied and setting forth in comparative form the end figures for the corresponding periods of the previous fiscal year year, except that the unaudited financial statements need not contain footnotes and ending with the shall be subject to changes resulting from year-end of such quarteraudit adjustments, and setting forth in each case in comparative form any events which could reasonably be expected to have an adverse effect upon CNSI's finances or the corresponding figures for the corresponding period results of the preceding fiscal year and the budget for such current yearits operations, all in reasonable detail and prepared in accordance with GAAP (subject to year-end audit adjustments and not including all footnotes thereto that may be required in accordance with GAAP)certified by the principal financial or accounting officer of CNSI;
(c3) Upon request So long as CNSI is subject to the reporting requirements of the Exchange Act, in lieu of the documents required by Sections 4.1 (1) and (2) and within the time periods required in Sections 4.1 (1) and (2) for the furnishing of financial information or as soon as otherwise available, whichever is earlier, copies of all documents filed by CNSI with the SEC, including, but not more frequently than the delivery of the financial statements described in Sections 7.2(a) and 7.2(b))limited to, a statement showing the number of Units of each class and series of membership interests (including Profits Interests) and securities convertible into its reports filed on Form 10-K, Form 10-Q, Form 8-K or exercisable for Units outstanding at the end of the applicable period, the Junior Units issuable upon conversion any successor form or exercise of any outstanding securities convertible or exercisable for Junior Units and the exchange ratio or exercise price applicable thereto, and the number of Units not yet issued but reserved for issuance under the Equity Incentive Plan, if any, all in sufficient detail as to permit the Preferred Unit Holders to calculate their respective percentage equity ownership in the Companyforms;
(d4) As soon as available information and data on any material adverse changes in or any event within thirty or condition which materially adversely affects or could materially adversely affect the business, operations, properties or plans of CNSI;
(305) days after Immediately upon becoming aware of any condition or event which constitutes a breach of the end Credit Documents, or any agreement contemplated hereby, written notice specifying the nature and period of each calendar month, a statement of recognized revenue, bookings and retained earnings on a monthly basis, compared against the corresponding figures from such month from the preceding fiscal year and the budget for such current yearexistence thereof an what action CNSI is taking or proposes to take with respect thereto; and
(e6) Not later than sixty (60) days after December 31 of each yearWith reasonable promptness, an annual budget such other information and quarterly and monthly operating budgets for such fiscal year in a form and data with such detail respect to CNSI, as VPLP may be acceptable from time to a majority of the Directorstime reasonably request.
Appears in 2 contracts
Samples: Collaborative Research, Development and Marketing Agreement (Cambridge Neuroscience Inc), Credit Agreement (Cambridge Neuroscience Inc)
Financial Information. (a) The Company Borrower will, and will furnish to cause each Major Holder Subsidiary other than the information set forth Subsidiaries listed on Schedule 5.03(a) to, keep its books of account in this Section 7.2; provided, that the Company shall not be required to furnish such information to a Major Holder if the Board determines in good faith that such Major Holder is a competitor to the Company (provided that in no event shall Kinnevik (or its Affiliates) or Oak (or its Affiliates) be deemed to be a competitor to the Company and that, as of the Effective Date, Walgreens (and its Affiliates) is deemed to not be a competitor to the Company):accordance with U.S. GAAP.
(a) As soon as practicable after The Borrower will (subject to the end last paragraph of each fiscal year of this Section 5.03) furnish to the Company, and in any event within one hundred fifty (150) days thereafter, a copy of Administrative Agent for distribution to the annual audited financial statements for such fiscal year for the Company and its Subsidiaries, if any, including therein balance sheets of the Company and its Subsidiaries, if any, as of the end of such fiscal year and statements of income and members’ equity and of cash flows of the Company for such fiscal year, setting forth in each case in comparative form the corresponding figures for the preceding fiscal year, all prepared in accordance with generally accepted accounting principles consistently applied (“GAAP”), all such consolidated statements to be duly certified by such independent public accountants of recognized national standing approved by the Board to prepare such reports;Banks:
(bi) As as soon as available and in any event within forty-five (45) 60 days after the end close of each of the first three quarters of each fiscal year of the Company, an unaudited balance sheet of the Company and its Subsidiaries, if anyBorrower, as of at the end of such quarter of, and the related unaudited statements of income and members’ equity and of cash flows of the Company for the period commencing at the end of the previous fiscal year and ending with with, such quarter, unaudited consolidated balance sheets of the Borrower and its Consolidated Entities and the related unaudited consolidated statements of operations, changes in equity and cash flow of the Borrower and its Consolidated Entities for such quarter and for the portion of the Borrower’s fiscal year ended at the end of such quarter, setting forth in each case in comparative form the corresponding figures for the corresponding period quarter and the corresponding portion of the preceding Borrower’s previous fiscal year and the budget for such current year, all in reasonable detail and prepared certified (subject to normal year-end adjustments) as to fairness of presentation in accordance with U.S. GAAP in all material respects and consistency (subject to yearexcept for changes concurred in by the Borrower’s independent public accountants) by the Chief Executive Officer, the Chief Financial Officer, an Assistant Secretary-end audit adjustments and not including all footnotes thereto that may be required in accordance with GAAP)Treasurer or the Controller of the Borrower;
(cii) Upon request (but not more frequently than the delivery of the financial statements described in Sections 7.2(a) and 7.2(b)), a statement showing the number of Units of each class and series of membership interests (including Profits Interests) and securities convertible into or exercisable for Units outstanding at the end of the applicable period, the Junior Units issuable upon conversion or exercise of any outstanding securities convertible or exercisable for Junior Units and the exchange ratio or exercise price applicable thereto, and the number of Units not yet issued but reserved for issuance under the Equity Incentive Plan, if any, all in sufficient detail as to permit the Preferred Unit Holders to calculate their respective percentage equity ownership in the Company;
(d) As soon as available practicable and in any event within thirty the earlier of (30i) two Domestic Business Days after filing with the Securities and Exchange Commission and (ii) 120 days after the close of each fiscal year of the Borrower, as at the end of each calendar monthand for the fiscal year just closed, consolidated balance sheets of the Borrower and its Consolidated Entities and the related consolidated statements of operations, changes in equity and cash flow for such fiscal year for the Borrower and its Consolidated Entities, all in reasonable detail and certified (without any qualification as to the scope of the audit) by KPMG LLP or other independent public accountants of nationally recognized standing selected by the Borrower, who shall have audited the books and accounts of the Borrower for such fiscal year;
(iii) with reasonable promptness, copies of all regular and periodical reports (including Current Reports on Form 8-K) filed with, or furnished to, the Securities and Exchange Commission;
(iv) promptly after the public announcement of, or promptly after receiving a written notice of, a statement change (whether an increase or decrease) in any rating issued by either S&P, Moody’s or Fitch, solely to the extent that the Borrower is then under an existing contract with such agency for the provision of recognized revenueratings information pertaining to any securities of, bookings and retained earnings on or guaranteed by, the Borrower or any of its Subsidiaries or affiliates, a monthly basis, compared against the corresponding figures from notice setting forth such month from the preceding fiscal year and the budget for such current yearchange; and
(ev) Not later than sixty with reasonable promptness, such other information respecting the business, operations and financial condition of the Borrower or any of its Subsidiaries or any Joint Venture as any Bank may, from time to time, reasonably request, including, without limitation, with respect to the performance and observance by the Borrower of the covenants and conditions contained in this Agreement. Reports or financial information required to be delivered pursuant to clauses (60b)(i), (b)(ii) days after December 31 and (b)(iii) of each year, an annual budget and quarterly and monthly operating budgets for this Section 5.03 shall be deemed to have been delivered on the date on which the Borrower posts such fiscal year in a form and with reports or financial information on the Borrower’s website (xxx.xxxxxx.xxx) or at such detail other website as may be acceptable notified to a majority the Administrative Agent and the Banks or when such reports or financial information are posted on the SEC’s website at xxx.xxx.xxx; provided, that the Borrower shall notify the Administrative Agent of any such posting; and provided further that the Borrower shall deliver paper copies of the Directorsreports or financial information required to be delivered pursuant to clauses (b)(i), (b)(ii) and (b)(iii) of this Section 5.03 to the Administrative Agent, if so requested by any Bank to the Administrative Agent, until written notice to cease delivering such paper copies is given by such Bank to the Administrative Agent.
Appears in 2 contracts
Samples: Revolving Credit Agreement (National Rural Utilities Cooperative Finance Corp /Dc/), Revolving Credit Agreement (National Rural Utilities Cooperative Finance Corp /Dc/)
Financial Information. The Company will furnish agrees to send the following to each Major Holder holder of Securities, as applicable (each, an “Investor”) during the information set forth in this Section 7.2; provided, that Reporting Period (i) unless the Company shall not be required to furnish such information to a Major Holder if following are filed with the Board determines in good faith that such Major Holder is a competitor SEC through EXXXX and are available to the Company public through the EXXXX system, within one (provided that in no event shall Kinnevik (or its Affiliates1) or Oak (or its Affiliates) be deemed to be a competitor to the Company and that, as of the Effective Date, Walgreens (and its Affiliates) is deemed to not be a competitor to the Company):
(a) As soon as practicable Business Day after the end of each fiscal year of filing thereof with the Company, and in any event within one hundred fifty (150) days thereafterSEC, a copy of the annual audited financial its Annual Reports on Form 10-K and Quarterly Reports on Form 10-Q, any interim reports or any consolidated balance sheets, income statements, stockholders’ equity statements and/or cash flow statements for any period other than annual, any Current Reports on Form 8-K and any registration statements (other than on Form S-8) or amendments filed pursuant to the 1933 Act, (ii) unless the following are either filed with the SEC through EXXXX or are otherwise widely disseminated via a recognized news release service (such fiscal year for as PR Newswire), on the same day as the release thereof, facsimile copies of all press releases issued by the Company or any of its Subsidiaries and its Subsidiaries(iii) unless the following are filed with the SEC through EXXXX, if any, including therein balance sheets copies of any notices and other information made available or given to the stockholders of the Company and its Subsidiariesgenerally, if anycontemporaneously with the making available or giving thereof to the stockholders. In addition to the foregoing, as of the end of such fiscal year and statements of income and members’ equity and of cash flows of the Company for such fiscal year, shall file with the SEC through EXXXX a Current Report on Form 8-K setting forth in each case in comparative form the corresponding figures for aggregate number of shares of Common Stock then outstanding (the preceding fiscal year, all prepared in accordance with generally accepted accounting principles consistently applied (“GAAPCurrent Outstanding Shares”), all such consolidated statements to be duly certified by such independent public accountants of recognized national standing approved by the Board to prepare such reports;
(b) As soon as available and in any event within forty-five (45) days after the end of each of no later than the first three quarters (1st) Business Day after such date that the Current Outstanding Shares has increased by more than 20% from the aggregate number of each fiscal year outstanding shares of Common Stock set forth in the latest of the Company’s Current Report on Form 8-K, an unaudited balance sheet of the Company and its Subsidiaries, if anyQuarterly Report on Form 10-Q or Annual Report on Form 10-K, as of the end of such quarter and the related unaudited statements of income and members’ equity and of cash flows of the Company for the period commencing at the end of the previous fiscal year and ending applicable, filed with the end SEC through EXXXX prior to such date of such quarter, setting forth in each case in comparative form the corresponding figures for the corresponding period of the preceding fiscal year and the budget for such current year, all in reasonable detail and prepared in accordance with GAAP (subject to year-end audit adjustments and not including all footnotes thereto that may be required in accordance with GAAP);
(c) Upon request (but not more frequently than the delivery of the financial statements described in Sections 7.2(a) and 7.2(b)), a statement showing the number of Units of each class and series of membership interests (including Profits Interests) and securities convertible into or exercisable for Units outstanding at the end of the applicable period, the Junior Units issuable upon conversion or exercise of any outstanding securities convertible or exercisable for Junior Units and the exchange ratio or exercise price applicable thereto, and the number of Units not yet issued but reserved for issuance under the Equity Incentive Plan, if any, all in sufficient detail as to permit the Preferred Unit Holders to calculate their respective percentage equity ownership in the Company;
(d) As soon as available and in any event within thirty (30) days after the end of each calendar month, a statement of recognized revenue, bookings and retained earnings on a monthly basis, compared against the corresponding figures from such month from the preceding fiscal year and the budget for such current year; and
(e) Not later than sixty (60) days after December 31 of each year, an annual budget and quarterly and monthly operating budgets for such fiscal year in a form and with such detail as may be acceptable to a majority of the Directorsdetermination.
Appears in 2 contracts
Samples: Securities Purchase Agreement (Magnegas Corp), Securities Purchase Agreement (Magnegas Corp)
Financial Information. The Company Borrower will furnish to each Major Holder the information set forth in this Section 7.2; provided, that the Company shall not be required to furnish such information to a Major Holder if the Board determines in good faith that such Major Holder is a competitor deliver to the Company (provided that in no event shall Kinnevik (or its Affiliates) or Oak (or its Affiliates) be deemed to be a competitor to the Company and that, as of the Effective Date, Walgreens (and its Affiliates) is deemed to not be a competitor to the Company):
Lenders (a) As as soon as practicable available and in any event within one hundred five (105) days after the end of each fiscal year of the CompanyBorrower, and in any event within one hundred fifty (150) days thereafter, a copy the consolidated balance sheet of the annual audited financial statements for such fiscal year for the Company Borrower and its Subsidiaries, if any, including therein balance sheets of the Company and its Subsidiaries, if any, Subsidiaries as of the end of such fiscal year and the related statements of income revenue and members’ expenses, statements of shareholder's equity and statements of cash flows of the Company flow for such fiscal year, setting forth in each case in comparative form accompanied by the corresponding figures for audit report thereof by independent certified public accountants selected by the preceding fiscal year, all Borrower and approved by the Agent (which report shall be prepared in accordance with generally accepted accounting principles consistently applied and shall not he qualified by reason of restricted or limited examination of any material portion of the Borrower's (“GAAP”or any Subsidiary's) records and shall contain no disclaimer of opinion), all such consolidated statements to be duly certified by such independent public accountants of recognized national standing approved by the Board to prepare such reports;
; (b) As as soon as available and in any event within forty-five sixty (4560) days after the end of each of the first three fiscal quarters of each fiscal year the Borrower, the unaudited consolidated balance sheet and statement of revenues and expenses, statement of shareholder's equity and statement of cash flow of the Company, an unaudited balance sheet of the Company Borrower and its Subsidiaries, if any, Subsidiaries as of the end of such fiscal quarter and (including the related unaudited statements of income and members’ equity and of cash flows of the Company for the period commencing at fiscal year to the end to such fiscal quarter), accompanied by an Officer's Certificate substantially in the form of attached Exhibit F to the previous fiscal year effect that such unaudited balance sheet and ending with the end of such quarter, setting forth in each case in comparative form the corresponding figures for the corresponding period of the preceding fiscal year and the budget for such current year, all in reasonable detail and related statements have been prepared in accordance with GAAP (subject to year-generally accepted accounting principles consistently applied and present fairly the consolidated financial position and results of operations of the Borrower and the Subsidiaries as of the end audit adjustments of and not including all footnotes thereto that may be required in accordance with GAAP);
for such fiscal quarter; (c) Upon request (but not more frequently than the delivery of the financial statements described in Sections 7.2(a) and 7.2(b)), a statement showing the number of Units of each class and series of membership interests (including Profits Interests) and securities convertible into or exercisable for Units outstanding at the end of the applicable period, the Junior Units issuable upon conversion or exercise of any outstanding securities convertible or exercisable for Junior Units and the exchange ratio or exercise price applicable thereto, and the number of Units not yet issued but reserved for issuance under the Equity Incentive Plan, if any, all in sufficient detail as to permit the Preferred Unit Holders to calculate their respective percentage equity ownership in the Company;
(d) As soon as available and in any event within thirty (30) days after the end of each calendar month, a statement of recognized revenue, bookings and retained earnings on a monthly basis, compared against the corresponding figures from such month from the preceding fiscal year and the budget for such current year; and
(e) Not later than sixty (60) days after December 31 the close of each yearof the first three fiscal quarters of the Borrower and within one hundred five (105) days after the close of each of the Borrower's fiscal years, an annual budget Officer's Certificate substantially in the form of the attached Exhibit F stating that as of the close of such fiscal quarter no Default or Event of Default had occurred and was continuing; (d) as soon as available, all reports sent by Borrower to its shareholders and all quarterly and monthly operating budgets for such fiscal year in a form annual reports filed by Borrower with the Securities and with such detail Exchange Commission and each other Governmental Authority having jurisdiction over Borrower; and (e) all other statements, reports and other information as the Agent or any Lender may be acceptable to a majority reasonably request concerning the financial condition and business affairs of the DirectorsBorrower or any of Borrower's Subsidiaries.
Appears in 2 contracts
Samples: Short Term Revolving Credit Agreement (Costco Wholesale Corp /New), Extended Revolving Credit Agreement (Costco Wholesale Corp /New)
Financial Information. The (i) So long as any of the Securities remain outstanding, the Company will furnish provide the following information to each Major Holder Buyer:
(A) as soon as practicable and in any event within 45 days after the information set forth end of each quarterly period (other than the last quarterly period) in this Section 7.2; providedeach fiscal year, that the Company shall not be required to furnish such information to a Major Holder if the Board determines in good faith that such Major Holder is a competitor to the Company (provided that in no event shall Kinnevik (or its Affiliates) or Oak (or its Affiliates) be deemed to be a competitor to consolidated statements of operations, stockholders' equity and cash flows of the Company and that, as its Subsidiaries for the period from the beginning of the Effective Datecurrent fiscal year to the end of such quarterly period, Walgreens (and a consolidated balance sheet of the Company and its Affiliates) is deemed to not be a competitor to Subsidiaries as at the end of such quarterly period, setting forth in each case in comparative form figures for the corresponding period in the preceding fiscal year, and certified by the Chief Financial Officer of the Company):, subject to changes resulting from year-end adjustments;
(aB) As as soon as practicable and in any event within 90 days after the end of each fiscal year year, consolidated statements of the Companyoperations, stockholders' equity and in any event within one hundred fifty (150) days thereafter, a copy of the annual audited financial statements for such fiscal year for the Company and its Subsidiaries, if any, including therein balance sheets cash flows of the Company and its SubsidiariesSubsidiaries for such year, if any, and the consolidated balance sheet of the Company and its Subsidiaries as of at the end of such fiscal year and statements of income and members’ equity and of cash flows of the Company for such fiscal year, setting forth in each case in comparative form the corresponding consolidated figures for from the preceding fiscal year, all prepared in accordance with generally accepted accounting principles consistently applied (“GAAP”), all such consolidated statements annual audit and certified to be duly certified the Company by such independent public accountants of recognized national standing approved selected by the Board to prepare such reportsCompany;
(bC) As soon as available promptly after their becoming available, copies of all registration statements and in reports which the Company or any event within forty-five of its Subsidiaries shall have filed with the SEC or any national securities exchange or quotation system;
(45D) days promptly after the end mailing thereof to the holders of each of the first three quarters of each fiscal year Common Stock of the Company, an unaudited balance sheet copies of all financial statements, reports and proxy statements so mailed;
(E) promptly after their becoming available, copies of all reports and compliance certificates filed in connection with the Financing Agreements and the Congress Facility; and
(F) true, complete and correct copies of all documents, reports, financial data and other information that each Buyer may reasonably request.
(ii) The Company shall permit the authorized representatives designated by each Buyer to visit and inspect any of the properties of the Company or any of its Subsidiaries, including their books of account, and to discuss their affairs, finances and accounts with their officers, all at such times as each Buyer may reasonably request.
(iii) Each Buyer shall have the right to consult with and advise the management of the Company and its subsidiaries, upon reasonable notice at reasonable times from time to time, on all matters relating to the operation of the Company and its Subsidiaries, if any, as of the end of such quarter and the related unaudited statements of income and members’ equity and of cash flows of the Company for the period commencing at the end of the previous fiscal year and ending with the end of such quarter, setting forth in each case in comparative form the corresponding figures for the corresponding period of the preceding fiscal year and the budget for such current year, all in reasonable detail and prepared in accordance with GAAP (subject to year-end audit adjustments and not including all footnotes thereto that may be required in accordance with GAAP);
(c) Upon request (but not more frequently than the delivery of the financial statements described in Sections 7.2(a) and 7.2(b)), a statement showing the number of Units of each class and series of membership interests (including Profits Interests) and securities convertible into or exercisable for Units outstanding at the end of the applicable period, the Junior Units issuable upon conversion or exercise of any outstanding securities convertible or exercisable for Junior Units and the exchange ratio or exercise price applicable thereto, and the number of Units not yet issued but reserved for issuance under the Equity Incentive Plan, if any, all in sufficient detail as to permit the Preferred Unit Holders to calculate their respective percentage equity ownership in the Company;
(d) As soon as available and in any event within thirty (30) days after the end of each calendar month, a statement of recognized revenue, bookings and retained earnings on a monthly basis, compared against the corresponding figures from such month from the preceding fiscal year and the budget for such current year; and
(e) Not later than sixty (60) days after December 31 of each year, an annual budget and quarterly and monthly operating budgets for such fiscal year in a form and with such detail as may be acceptable to a majority of the Directors.
Appears in 2 contracts
Samples: Securities Purchase Agreement (Clean Harbors Inc), Securities Purchase Agreement (Clean Harbors Inc)
Financial Information. The Company will furnish to each Major Holder the information set forth in this Section 7.2; provided, that the Company shall not be required to furnish such information to a Major Holder if the Board determines in good faith that such Major Holder is a competitor to the Company (provided that in no event shall Kinnevik (or its Affiliates) or Oak (or its Affiliates) be deemed to be a competitor to the Company and that, as of the Effective Date, Walgreens (and its Affiliates) is deemed to not be a competitor to the Company):
(a) As soon as practicable after the end of each fiscal year of the CompanyThe Borrower will, and in any event within one hundred fifty (150will cause each Subsidiary other than the Subsidiaries listed on Schedule 5.03(a) days thereafterto, a copy keep its books of the annual audited financial statements for such fiscal year for the Company and its Subsidiaries, if any, including therein balance sheets of the Company and its Subsidiaries, if any, as of the end of such fiscal year and statements of income and members’ equity and of cash flows of the Company for such fiscal year, setting forth in each case in comparative form the corresponding figures for the preceding fiscal year, all prepared account in accordance with generally accepted accounting principles consistently applied (“U.S. GAAP”), all such consolidated statements to be duly certified by such independent public accountants of recognized national standing approved by the Board to prepare such reports;.
(b) As The Borrower will (subject to the last paragraph of this Section 5.03) furnish to the Administrative Agent for distribution to the Banks:
(i) as soon as available and in any event within forty-five (45) 60 days after the end close of each of the first three quarters of each fiscal year of the Company, an unaudited balance sheet of the Company and its Subsidiaries, if anyBorrower, as of at the end of such quarter of, and the related unaudited statements of income and members’ equity and of cash flows of the Company for the period commencing at the end of the previous fiscal year and ending with with, such quarter, unaudited consolidated balance sheets of the Borrower and its Consolidated Entities and the related unaudited consolidated statements of operations, changes in equity and cash flow of the Borrower and its Consolidated Entities for such quarter and for the portion of the Borrower’s fiscal year ended at the end of such quarter, setting forth in each case in comparative form the corresponding figures for the corresponding period quarter and the corresponding portion of the preceding Borrower’s previous fiscal year and the budget for such current year, all in reasonable detail and prepared certified (subject to normal year‑end adjustments) as to fairness of presentation in accordance with U.S. GAAP in all material respects and consistency (subject to yearexcept for changes concurred in by the Borrower’s independent public accountants) by the Chief Executive Officer, the Chief Financial Officer, Chief Operating Officer, an Assistant Secretary-end audit adjustments and not including all footnotes thereto that may be required in accordance with GAAP)Treasurer or the Controller of the Borrower;
(cii) Upon request (but not more frequently than the delivery of the financial statements described in Sections 7.2(a) and 7.2(b)), a statement showing the number of Units of each class and series of membership interests (including Profits Interests) and securities convertible into or exercisable for Units outstanding at the end of the applicable period, the Junior Units issuable upon conversion or exercise of any outstanding securities convertible or exercisable for Junior Units and the exchange ratio or exercise price applicable thereto, and the number of Units not yet issued but reserved for issuance under the Equity Incentive Plan, if any, all in sufficient detail as to permit the Preferred Unit Holders to calculate their respective percentage equity ownership in the Company;
(d) As soon as available practicable and in any event within thirty the earlier of (30i) two Domestic Business Days after filing with the Securities and Exchange Commission and (ii) 120 days after the close of each fiscal year of the Borrower, as at the end of each calendar monthand for the fiscal year just closed, consolidated balance sheets of the Borrower and its Consolidated Entities and the related consolidated statements of operations, changes in equity and cash flow for such fiscal year for the Borrower and its Consolidated Entities, all in reasonable detail and certified (without any qualification as to the scope of the audit) by KPMG LLP or other independent public accountants of nationally recognized standing selected by the Borrower, who shall have audited the books and accounts of the Borrower for such fiscal year;
(iii) with reasonable promptness, copies of all regular and periodical reports (including Current Reports on Form 8-K) filed with, or furnished to, the Securities and Exchange Commission;
(iv) promptly after the public announcement of, or promptly after receiving a written notice of, a statement change (whether an increase or decrease) in any rating issued by either S&P or Xxxxx’x, solely to the extent that the Borrower is then under an existing contract with such agency for the provision of recognized revenueratings information pertaining to any securities of, bookings and retained earnings on or guaranteed by, the Borrower or any of its Subsidiaries or affiliates, a monthly basis, compared against the corresponding figures from notice setting forth such month from the preceding fiscal year and the budget for such current yearchange; and
(ev) Not later than sixty with reasonable promptness, such other information respecting the business, operations and financial condition of the Borrower or any of its Subsidiaries or any Joint Venture as any Bank may, from time to time, reasonably request, including, without limitation, with respect to the performance and observance by the Borrower of the covenants and conditions contained in this Agreement. Reports or financial information required to be delivered pursuant to clauses (60b)(i), (b)(ii) days after December 31 and (b)(iii) of each year, an annual budget and quarterly and monthly operating budgets for this Section 5.03 shall be deemed to have been delivered on the date on which the Borrower posts such fiscal year in a form and with reports or financial information on the Borrower’s website (xxx.xxxxxx.xxx) or at such detail other website as may be acceptable notified to a majority the Administrative Agent and the Banks or when such reports or financial information are posted on the SEC’s website at xxx.xxx.xxx; provided, that the Borrower shall notify the Administrative Agent of any such posting; and provided further that the Borrower shall deliver paper copies of the Directorsreports or financial information required to be delivered pursuant to clauses (b)(i), (b)(ii) and (b)(iii) of this Section 5.03 to the Administrative Agent, if so requested by any Bank to the Administrative Agent, until written notice to cease delivering such paper copies is given by such Bank to the Administrative Agent.
Appears in 2 contracts
Samples: Revolving Credit Agreement (National Rural Utilities Cooperative Finance Corp /Dc/), Revolving Credit Agreement (National Rural Utilities Cooperative Finance Corp /Dc/)
Financial Information. The Company will furnish mail the following reports to each Major Holder the information set forth in this Section 7.2; provided, that Purchaser for so long as the Company shall not be required to furnish such information to a Major Holder if the Board determines in good faith that such Major Holder Purchaser is a competitor to the Company (provided that in no event shall Kinnevik (or its Affiliates) or Oak (or its Affiliates) be deemed to be a competitor to the Company and that, as holder of any of the Effective Date, Walgreens (shares of Common Stock and its Affiliates) is deemed to not be a competitor to the Company):Option Shares:
(a) As soon as practicable after the end of each fiscal year of the Companyyear, and in any event within one hundred fifty (150) 90 days thereafter, a copy of the annual audited financial statements for such fiscal year for the Company and its Subsidiaries, if any, including therein consolidated balance sheets of the Company and its Subsidiariessubsidiaries, if any, as of the end of such fiscal year year, and consolidated statements of income operations and members’ equity and consolidated statements of cash flows of the Company and its subsidiaries, if any, for such fiscal year, prepared in accordance with generally accepted accounting principles and setting forth in each case in comparative form similar information of the corresponding figures for the preceding previous fiscal year, all in reasonable detail and audited by independent public accountants of national standing selected by the Company.
(b) As soon as practicable after the end of the first, second and third quarterly accounting periods in each fiscal year of the Company and in any event within 45 days thereafter, a consolidated balance sheet of the Company and its subsidiaries, if any, as of the end of each such quarterly period, and consolidated statements of operations and consolidated statements of cash flows of the Company and its subsidiaries, if any, for such period and for the current fiscal year to date, prepared in accordance with generally accepted accounting principles (other than for accompanying notes), all in reasonable detail and signed, subject to changes resulting from year-end audit adjustments, by the principal financial or accounting officer of the Company.
(c) Within 15 days after the end of each fiscal month, unaudited consolidated balance sheets of the Company as of the end of such month, unaudited consolidated statements of operations including income statements, and unaudited consolidated rolling cash flow projections for each month and for the current fiscal year to date. Such financial statements shall be prepared in accordance with generally accepted accounting principles consistently applied (“GAAP”other than accompanying notes), all such consolidated statements to be duly certified by such independent public accountants of recognized national standing approved by the Board to prepare such reports;
(b) As soon as available and in any event within forty-five (45) days after the end of each of the first three quarters of each fiscal year of the Company, an unaudited balance sheet of the Company and its Subsidiaries, if any, as of the end of such quarter and the related unaudited statements of income and members’ equity and of cash flows of the Company for the period commencing at the end of the previous fiscal year and ending with the end of such quarter, setting forth in each case in comparative form the corresponding figures for the corresponding period of the preceding fiscal year and the budget for such current year, all in reasonable detail and prepared in accordance with GAAP (subject to year-end audit adjustments and not including all footnotes thereto that may be required in accordance with GAAP);adjustments.
(cd) Upon request (but not more frequently than Promptly after each meeting or the delivery execution of an action by written consent, copies of the financial statements described in Sections 7.2(a) and 7.2(b)), a statement showing the number minutes of Units of each class and series of membership interests (including Profits Interests) and securities convertible into proceedings or exercisable for Units outstanding at the end actions by written consent of the applicable periodCompany's Board of Directors and shareholders.
(e) With reasonable promptness, such other information and data with respect to the Junior Units issuable upon conversion or exercise of any outstanding securities convertible or exercisable for Junior Units Company and the exchange ratio or exercise price applicable thereto, and the number of Units not yet issued but reserved for issuance under the Equity Incentive Planits subsidiaries, if any, all in sufficient detail as the Purchaser may from time to permit the Preferred Unit Holders to calculate their respective percentage equity ownership in the Company;time reasonably request.
(df) As soon For so long as available the Purchaser is eligible to receive reports under this Section 7.1, it shall also have the right, at its expense, to visit and in inspect any event within thirty (30) days after of the end properties of each calendar monththe Company or any of its subsidiaries, a statement to examine its books of recognized revenueaccount and records, bookings and retained earnings on a monthly basisto discuss their affairs, compared against the corresponding figures from finances and accounts with their officers, all at such month from the preceding fiscal year and the budget for such current year; and
(e) Not later than sixty (60) days after December 31 of each year, an annual budget and quarterly and monthly operating budgets for such fiscal year in a form and with such detail reasonable times as often as may be acceptable reasonably requested, provided, however, that the Company shall not be obligated to a majority provide any information, other than to the representatives of the Purchaser on the Board of Directors, that it reasonably considers to be a trade secret or to contain confidential information.
Appears in 2 contracts
Samples: Investment and Voting Agreement (Las Vegas Discount Golf & Tennis Inc), Investment and Voting Agreement (Asi Group LLC)
Financial Information. The Company will furnish to each Major Series A Preferred Holder the information set forth in this Section 7.2; provided, that the Company shall not be required to furnish such information to a Major Holder if the Board determines in good faith that such Major Holder is a competitor to the Company (provided that in no event shall Kinnevik (or its Affiliates) or Oak (or its Affiliates) be deemed to be a competitor to the Company and that, as of the Effective Date, Walgreens (and its Affiliates) is deemed to not be a competitor to the Company):following:
(a) As soon as practicable after the end of each fiscal year of the CompanyCompany ending on or after December 31, 2005, and in any event within one hundred fifty ninety (15090) days thereafter, a copy of the annual audited consolidated financial statements for such fiscal year for the Company and its Subsidiaries, if any, including therein balance sheets of the Company and its Subsidiaries, if any, as of the end of such fiscal year and statements of income and members’ equity and of cash flows of the Company for such fiscal year, setting forth in each case in comparative form the corresponding figures for the preceding fiscal year, all prepared in accordance with generally accepted accounting principles consistently applied (“GAAP”), all such consolidated statements to be duly certified by the Vice President - Finance and Administration and Treasurer of the Company and by such independent public accountants of recognized national standing approved by the Management Board to prepare such reports;
(b) As soon as available and in any event within forty-five (45) days after the end of each of the first three quarters of each fiscal year of the Company, an unaudited balance sheet of the Company and its Subsidiaries, if any, as of the end of such quarter and the related unaudited statements of income and members’ equity and of cash flows of the Company for the period commencing at the end of the previous fiscal year and ending with the end of such quarter, setting forth in each case in comparative form the corresponding figures for the corresponding period of the preceding fiscal year and the budget for such current year, all in reasonable detail and prepared in accordance with GAAP (subject to year-end audit adjustments and not including all footnotes thereto that may be required in accordance with GAAP);
(c) Upon request (but not more frequently than the delivery of the financial statements described in Sections 7.2(a) and 7.2(b)), a statement showing the number of Units of each class and series of membership interests (including Profits Interests) and securities convertible into or exercisable for Units outstanding at the end of the applicable period, the Junior Units issuable upon conversion or exercise of any outstanding securities convertible or exercisable for Junior Units and the exchange ratio or exercise price applicable thereto, and the number of Units not yet issued but reserved for issuance under the Equity Incentive Plan, if any, all in sufficient detail as to permit the Preferred Unit Holders to calculate their respective percentage equity ownership in the Company;
(d) As soon as available and in any event within thirty (30) days after the end of each calendar monthmonth (herein called a “Fiscal Month”):
(i) consolidated balance sheets of the Company and its Subsidiaries, a statement if any, as of recognized revenuethe end of such Fiscal Month and consolidated statements of income, bookings cashflows and retained earnings on a monthly basisof the Company and its Subsidiaries, compared against if any, (i) for such Fiscal Month and (ii) for such Fiscal Month as set forth in the Annual Budget (as defined below), setting forth in each case in comparative form the corresponding figures from such month from for the preceding fiscal year year, all duly certified by the Vice President - Finance and Administration and Treasurer of the budget for such current Company as having been prepared in accordance with the internal procedures of the Company (subject to year-end audit adjustments), consistently applied; and
(eii) Not a letter from the Vice President - Finance and Administration and Treasurer of the Company describing revenue and operations of the Company for the respective period covered in such letter; and
(c) As soon as available, and in no event later than sixty (60) days after December January 31 of each year, an annual budget and quarterly and monthly operating budgets for such the forthcoming fiscal year in a form and with such detail as may be acceptable to a majority of the DirectorsManagement Board (including the affirmative vote of a VSH Manager Designee) which shall include, among other things, an operating business plan and financial projections showing all reasonable assumptions (the “Annual Budget”).
(d) Promptly upon request, such other financial statements and reports, and such other information, certificates and documents as may be reasonably requested by any VSH Manager Designee for purposes of enabling VSH and its Affiliates to comply with applicable Law and all rules and regulations of any exchange or system on which any securities of VSH or its Affiliates may be listed or traded from time to time.
(e) Each of the Company and its Subsidiaries will maintain a system of internal accounting controls sufficient in the judgment of the Management Board and VSH to provide reasonable assurance that (i) transactions are executed in accordance with the Management Board’s general or specific authorizations; (ii) transactions are recorded as necessary to permit preparation of consolidated financial statements in conformity with generally accepted accounting principles and to maintain asset accountability; (iii) access to assets is permitted only in accordance with the Management Board’s general or specific authorization; and (iv) the recorded accountability for assets is compared with the existing assets at reasonable intervals and appropriate action is taken with respect to any differences. The Company will maintain controls and procedures and design such disclosure controls and procedures sufficient in the judgment of the Management Board and VSH to ensure that material information relating to the Company and its Subsidiaries is made known to (i) the chief executive officer and chief financial officer of the Company by others within the Company and (ii) by the chief executive officer and chief financial officer of the Company to VSH or its Affiliates.
Appears in 2 contracts
Samples: Membership Interest Purchase Agreement (FVA Ventures, Inc.), Membership Interest Purchase Agreement (FVA Ventures, Inc.)
Financial Information. The Company will furnish to each Major Holder the information set forth in this Section 7.2; provided, that the Company shall not be required to furnish such information to a Major Holder if the Board determines in good faith that such Major Holder is a competitor to the Company (provided that in no event shall Kinnevik (or its Affiliates) or Oak (or its Affiliates) be deemed to be a competitor to the Company and that, as of the Effective Date, Walgreens (and its Affiliates) is deemed to not be a competitor to the Company):
(a) As Imperial must:
(i) as soon as practicable after the end of each fiscal year of the Companysame become available, and but in any event within one hundred fifty (150) days thereafter, a copy of the annual audited financial statements for such fiscal year for the Company and its Subsidiaries, if any, including therein balance sheets of the Company and its Subsidiaries, if any, as of the end of such fiscal year and statements of income and members’ equity and of cash flows of the Company for such fiscal year, setting forth in each case in comparative form the corresponding figures for the preceding fiscal year, all prepared in accordance with generally accepted accounting principles consistently applied (“GAAP”), all such consolidated statements to be duly certified by such independent public accountants of recognized national standing approved by the Board to prepare such reports;
(b) As soon as available and in any event within forty-five (45) 180 days after the end of each of its financial years, deliver to the first three quarters of each fiscal year Facility Agent the audited consolidated accounts of the Company, an unaudited balance sheet of the Company and its Subsidiaries, if any, as of the end of such quarter and the related unaudited statements of income and members’ equity and of cash flows of the Company Group for the period commencing at the end of the previous fiscal year and ending with the end of such quarter, setting forth in each case in comparative form the corresponding figures for the corresponding period of the preceding fiscal year and the budget for such current that financial year, all in reasonable detail and prepared in accordance with GAAP (subject to year-end audit adjustments and not including all footnotes thereto that may be required in accordance with GAAP);
(cii) Upon request (but not more frequently than the delivery of the financial statements described in Sections 7.2(a) and 7.2(b)), a statement showing the number of Units of each class and series of membership interests (including Profits Interests) and securities convertible into or exercisable for Units outstanding at the end of the applicable period, the Junior Units issuable upon conversion or exercise of any outstanding securities convertible or exercisable for Junior Units and the exchange ratio or exercise price applicable thereto, and the number of Units not yet issued but reserved for issuance under the Equity Incentive Plan, if any, all in sufficient detail as to permit the Preferred Unit Holders to calculate their respective percentage equity ownership in the Company;
(d) As soon as available and the same become available, but in any event within thirty (30) 90 days after the end of the first half of each calendar monthof its financial years, a deliver to the Facility Agent the half yearly financial statements of the Group for that period required to be sent to the holders of Imperial’s listed shares pursuant to the Stock Exchange Publication “Admission of Securities to Listing”, or any equivalent statement or report required to be so delivered by any replacement or successor publication dealing with the information obligations of recognized revenuelisted companies;
(iii) as soon as the same become available but in any event within either 30 days of the same being filed at Companies House or within 180 days of the end of each of its financial years whichever is the earlier, bookings and retained earnings on a monthly basis, compared against deliver to the corresponding figures from such month from Facility Agent the preceding fiscal year and the budget audited accounts of each Borrower for such current each financial year; and
(eiv) Not later than sixty Imperial shall ensure that each set of accounts referred to in paragraphs (60i), (ii) days after December 31 of each year, an annual budget and quarterly and monthly operating budgets for such fiscal year in a form and with such detail (iii) above (except as may be acceptable to a majority stated in the notes):
(A) are prepared in accordance with approved accounting standards in the U.K. or such other accounting standards as agreed in accordance with paragraph (b)(i) below;
(B) in the case of the Directorsaccounts referred to in paragraphs (i) and (iii) above, give a true and fair view of the financial condition of the Group or, as the case may be, each Borrower as at the date to which they were drawn up and the results of the Group’s or, as the case may be, each Borrower’s operations during the relevant financial year; and
(C) in the case of the accounts referred to in paragraph (ii) above, fairly represents the financial condition of the Group during the period to which it relates.
(b) Imperial must:
(i) notify the Facility Agent of any change to the basis on which its audited consolidated financial statements are prepared and any change to its financial year end;
(ii) if requested by the Facility Agent, supply to the Facility Agent:
(A) a full description of any change notified under paragraph (i) above; and
(B) sufficient information to enable the Finance Parties to make a proper comparison between the financial position shown by the set of financial statements prepared on the changed basis and its most recent audited consolidated financial statements delivered to the Facility Agent under this Agreement;
(iii) if requested by the Facility Agent (and, if requested by Imperial, the Facility Agent must) enter into discussions for a period of not more than 30 days with a view to agreeing any amendments required to be made to this Agreement to place Imperial and the Lenders in the same position as they would have been in if the change had not happened. Any agreement between Imperial and the Facility Agent will be, with the prior consent of the Majority Lenders, binding on all the Parties; and
(iv) if no agreement is reached under paragraph (iii) above on the required amendments to this Agreement, ensure that its auditors or another firm of accountants certify those amendments and the certificate of the auditors or another firm of accountants will be, in the absence of manifest error, binding on all the Parties. In preparing the report the auditors or another firm of accountants will act as independent experts and not as auditors.
Appears in 2 contracts
Samples: Finance Agreement, Credit Facilities Agreement (Imperial Tobacco Group PLC)
Financial Information. The Company will shall furnish to each Major Holder the information set forth in this Section 7.2; provided, that the Company shall not be required to furnish such information to a Major Holder if the Board determines in good faith that such Major Holder is a competitor following reports to the Company (provided that in no event shall Kinnevik (or its Affiliates) or Oak (or its Affiliates) be deemed to be a competitor to the Company and that, as of the Effective Date, Walgreens (and its Affiliates) is deemed to not be a competitor to the Company):Investor:
(a) As as soon as practicable after the end of each fiscal year of the Company, and in any event within one hundred fifty sixty (15060) days thereafter, management accounts for the preceding fiscal year prepared by the Company in accordance with International Standards on Accounting (“ISA”) consistently applied and setting forth in each case in comparative form the figures for the previous fiscal year;
(b) as soon as practicable after the end of each fiscal year of the Company, and in any event within ninety (90) days thereafter, a copy of the annual audited financial statements for such fiscal year for the Company and its Subsidiaries, if any, including therein consolidated balance sheets sheet of the Company and its Subsidiariessubsidiaries, if any, as of the end of such fiscal year and statements of the related consolidated income and members’ statement, consolidated statement in changes in equity and of consolidated cash flows of flow statement for the Company for such fiscal yearyear then ended, prepared in accordance with ISA consistently applied and setting forth in each case in comparative form the corresponding figures for the preceding previous fiscal year, all prepared in accordance with generally accepted accounting principles consistently applied (“GAAP”), all such consolidated statements to be duly and audited and certified by such a firm of independent public accountants of recognized national international standing approved selected by the Board to prepare such reportsof Directors of the Company;
(bc) As as soon as available practicable after the end of each of the first three fiscal quarters of each fiscal year of the Company, and in any event within forty-five (45) days after the end of each of the first three quarters fiscal quarters, a consolidated balance sheet of the Company and its subsidiaries, if any as of the end of such quarter, and the related consolidated income statement, consolidated statement in changes in equity and consolidated cash flow statement of the Company and its subsidiaries, if any, for the current fiscal year to date, unaudited but prepared in accordance with ISA consistently applied and setting forth in comparative form the figures for the corresponding periods of the previous fiscal year, together with a comparison of such statements to the Budget (as herein defined), subject to changes resulting from immaterial normal year-end audit adjustments, all in reasonable detail and certified by the principal financial officer of the Company; and
(d) as soon as practicable after the end of each month of each fiscal year of the Company, an unaudited and in any event within twenty (20) days after the end of each month, a consolidated balance sheet of the Company and its Subsidiariessubsidiaries, if any, as of the end of such quarter month, and the related unaudited statements of consolidated income and members’ statement, consolidated statement in changes in equity and of consolidated cash flows flow statement of the Company and its subsidiaries, if any, as of the end of such month, unaudited but prepared in accordance with ISA consistently applied and setting forth in comparative form the figures for the period commencing at the end corresponding periods of the previous fiscal year and ending for the material business units, together with the end a comparison of such quarterstatements to the Budget, setting forth in each case in comparative form the corresponding figures for the corresponding period of the preceding fiscal year and the budget for such current subject to changes resulting from immaterial normal year-end audit adjustments, all in reasonable detail and certified by the principal financial officer of the Company. Notwithstanding anything to the contrary set forth above, each report delivered pursuant to this Section 7.1 shall specifically (i) reconcile net income as reported on the consolidated income statement according to ISA with net income according to generally accepted accounting principles in the United States (“GAAP”) and such reconciliation shall be provided to the Investor in a tabular format with each material reconciling item described and quantified in reasonable detail, and (ii) indicate the amount of each material variation between the amount of any line item appearing in the consolidated balance sheet prepared in accordance with GAAP (subject according to year-end audit adjustments ISA and not including all footnotes thereto that may be required in accordance with GAAP);
(c) Upon request (but not more frequently than the delivery of the financial statements described in Sections 7.2(a) and 7.2(b)), a statement showing the number of Units of each class and series of membership interests (including Profits Interests) and securities convertible into or exercisable for Units outstanding at the end of the applicable period, the Junior Units issuable upon conversion or exercise amount of any outstanding securities convertible or exercisable for Junior Units and line item appearing on the exchange ratio or exercise price applicable thereto, and the number of Units not yet issued but reserved for issuance under the Equity Incentive Plan, if any, all in sufficient detail as consolidated balance sheet prepared according to permit the Preferred Unit Holders to calculate their respective percentage equity ownership in the Company;
(d) As soon as available and in any event within thirty (30) days after the end of each calendar month, a statement of recognized revenue, bookings and retained earnings on a monthly basis, compared against the corresponding figures from such month from the preceding fiscal year and the budget for such current year; and
(e) Not later than sixty (60) days after December 31 of each year, an annual budget and quarterly and monthly operating budgets for such fiscal year in a form and with such detail as may be acceptable to a majority of the DirectorsGAAP.
Appears in 2 contracts
Samples: Shareholders Agreement (Monster Worldwide Inc), Shareholders Agreement (Monster Worldwide Inc)
Financial Information. The Company will furnish to each Major Holder the information set forth in this Section 7.2; provided, that the Company Borrowers and Holdings shall not be required to furnish such information to a Major Holder if the Board determines in good faith that such Major Holder is a competitor deliver to the Company (provided that in no event shall Kinnevik (or its Affiliates) or Oak (or its Affiliates) be deemed to be a competitor to the Company Agent and that, as of the Effective Date, Walgreens (and its Affiliates) is deemed to not be a competitor to the Company):each Lender:
(a) As as soon as practicable and in any event within 60 days after the end of each quarterly period (other than the last quarterly period) (commencing with the fiscal quarter ending September 30, 2021) in each fiscal year (or if earlier, 10 Business Days after the date required to be filed with the SEC), or the date on which another creditor of any Loan Party first receives such information, consolidated statements of income and cash flows of Holdings and its Subsidiaries for the period from the beginning of the current fiscal year to the end of such quarterly period, and a consolidated balance sheet of Holdings and its Subsidiaries as at the end of such quarterly period, setting forth in each case in comparative form figures for the corresponding period in the preceding fiscal year, all in reasonable detail and certified by an authorized financial officer of the Loan Parties, subject only to changes resulting from year-end adjustments;
(b) as soon as practicable and in any event within the earlier to occur of 120 days after the end of each fiscal year of the CompanyLoan Parties (or if earlier, and in any event within one hundred fifty (15010 Business Days after the date required to be filed with the SEC) days thereafter, a copy or the date on which another creditor of the annual audited financial statements for Loan Parties first receives such fiscal year for the Company and its Subsidiariesinformation, if any, including therein balance sheets of the Company and its Subsidiaries, if any, as of the end of such fiscal year and consolidated statements of income and members’ equity and of cash flows of Holdings and its Subsidiaries for such year and a consolidated balance sheet of Holdings and its Subsidiaries as at the Company for end of such fiscal year, setting forth in each case in comparative form the corresponding figures for from the preceding fiscal year, all prepared in accordance with generally accepted accounting principles consistently applied (“GAAP”), all such consolidated statements to be duly certified by such independent public accountants of recognized national standing approved by the Board to prepare such reports;
(b) As soon as available and in any event within forty-five (45) days after the end of each of the first three quarters of each fiscal year of the Company, an unaudited balance sheet of the Company and its Subsidiaries, if any, as of the end of such quarter and the related unaudited statements of income and members’ equity and of cash flows of the Company for the period commencing at the end of the previous fiscal year and ending with the end of such quarter, setting forth in each case in comparative form the corresponding figures for the corresponding period of the preceding fiscal year and the budget for such current yearannual audit, all in reasonable detail and reasonably satisfactory in scope to the Required Lenders and certified by independent public accountants of recognized standing whose opinion shall be unqualified (other than solely as a result of the upcoming maturity of the Obligations within one year from the time such opinion is delivered) and otherwise satisfactory in scope and substance to the Required Lenders, provided that such opinion shall be deemed otherwise satisfactory if prepared in accordance with GAAP (subject to year-end audit adjustments and not including all footnotes thereto that may be required in accordance with GAAP)generally accepted accounting standards;
(c) Upon together with each delivery of financial statements required by clauses (a) and (b) above, a Compliance Certificate (i) setting forth the aggregate amount of Restricted Payments made during such fiscal period and computations showing the calculation of the covenants in Sections 7.01, 7.03(c), 7.04(d), and 7.04(e); (ii) listing the Unencumbered Investment Properties and each other asset included in the calculation of Unencumbered Income Producing Assets Value and separately setting forth computations showing the calculation of the Unencumbered Income Producing Assets Value of each Unencumbered Investment Property and each other asset included therein; and (iii) stating that to the best of his or her knowledge, after due inquiry, there exists no Default as of the date of the Compliance Certificate, or if any such Default exists, specifying the nature and period of existence thereof and what action the Loan Parties propose to take with respect thereto;
(d) promptly upon transmission thereof, copies of all such financial, proxy and information statements, notices and other reports as are sent to Holdings’ stockholders generally and copies of all registration statements (with such exhibits as any holder reasonably requests) and all reports which are filed with the SEC;
(e) promptly upon receipt thereof, a copy of each other material report submitted to Holdings or any of its Subsidiaries by independent accountants in connection with any material annual, interim or special audit made by them of the books of Holdings or such Subsidiary pursuant to a request by Holdings’ board of directors;
(but f) promptly after the furnishing thereof, copies of any certificate or report furnished to any other holder of the debt securities of any Loan Party pursuant to the terms of the Note Purchase Agreement or any other indenture, loan, credit or similar agreement or instrument and not more frequently than otherwise required to be furnished to the Lenders pursuant to any other clause of this Section 6.01;
(g) at the time of delivery of the financial statements described referenced in Sections 7.2(a) and 7.2(b)Section 6.01(b), a statement showing an annual forecast of Holdings for the number of Units of each class and series of membership interests (including Profits Interests) and securities convertible into or exercisable for Units outstanding at the end of the applicable period, the Junior Units issuable upon conversion or exercise of any outstanding securities convertible or exercisable for Junior Units and the exchange ratio or exercise price applicable thereto, and the number of Units not yet issued but reserved for issuance under the Equity Incentive Plan, if any, all in sufficient detail as to permit the Preferred Unit Holders to calculate their respective percentage equity ownership in the Companythen current fiscal year;
(dh) As soon annually, a report with respect to the real property of the Loan Parties substantially in form and substance similar to that certain supplemental real estate and financial information report with respect to Holdings reported as available of and for the fiscal year ended December 31, 2020 or otherwise in form and substance satisfactory to the Agent;
(i) promptly following any request therefor, information and documentation reasonably requested by the Agent or any Lender for purposes of compliance with applicable “know your customer” and anti-money-laundering rules and regulations, including, the Act and the Beneficial Ownership Regulation;
(j) promptly, notice of any change or possible change in a Debt Rating;
(k) promptly, and in any event within thirty (30) days five Business Days after the end receipt thereof by any Loan Party or any Subsidiary thereof, copies of each calendar month, a statement of recognized revenue, bookings and retained earnings on a monthly basis, compared against the corresponding figures from such month notice or other correspondence received from the preceding fiscal year and SEC (or comparable agency in any applicable non-U.S. jurisdiction) concerning any investigation or possible investigation or other inquiry by such agency regarding financial or other operational results of any Loan Party or any Subsidiary thereof;
(l) notice of the budget for such current yearoccurrence of any Default; and
(em) Not later than sixty (60) days after December 31 promptly, of each year, an annual budget and quarterly and monthly operating budgets for such fiscal year any matter that has resulted or could reasonably be expected to result in a form Material Adverse Effect, including any of the following (to the extent they have resulted or could reasonably be expected to result in a Material Adverse Effect) (i) breach or non-performance of, or any default under, a Contractual Obligation of Holdings or any Subsidiary; (ii) any action, suit, dispute, litigation, investigation, proceeding or suspension involving any Loan Party or any Subsidiary or any of their respective properties and any Governmental Authority; or (iii) the commencement of, or any material development in, any litigation or proceeding affecting 82 Holdings or any Subsidiary, including pursuant to any applicable Environmental and Safety Laws. Each Loan Party also covenants that forthwith upon a Responsible Officer obtaining actual knowledge of a Default, it will deliver to the Agent and the Lenders an Officers’ Certificate specifying the nature and period of existence thereof and what action the Borrowers propose to take with respect thereto. Documents required to be delivered pursuant to Section 6.01(a), (b), (d) or (h) (to the extent any such detail as documents are included in materials otherwise filed with the SEC) may be acceptable delivered electronically and if so delivered, shall be deemed to have been delivered on the date (i) on which Holdings and the Borrowers post such documents, or provides a majority link thereto on the Borrowers’ website on the Internet at the website address listed on Schedule 10.02; or (ii) on which such documents are posted on Holding’s or a Borrower’s behalf on an Internet or intranet website, if any, to which each Lender and the Agent have access (whether a commercial, third-party website or whether sponsored by the Agent); provided that: (i) Holdings and the Borrowers shall deliver paper copies of such documents to the Agent or any Lender that requests Holdings and the Borrowers to deliver such paper copies until a written request to cease delivering paper copies is given by the Agent or such Lender and (ii) the Company shall notify the Agent and each Lender (by facsimile or electronic mail) of the Directorsposting of any such documents. The Agent shall have no obligation to request the delivery or to maintain copies of the documents referred to above, and in any event shall have no responsibility to monitor compliance by the Company with any such request for delivery, and each Lender shall be solely responsible for requesting delivery to it or maintaining its copies of such documents. Each Borrower hereby acknowledges that (a) the Agent and/or the Arrangers may, but shall not be obligated to, make available to the Lenders and the L/C Issuer materials and/or information provided by or on behalf of such Borrower hereunder (collectively, “Borrower Materials”) by posting the Borrower Materials on Debt Domain, IntraLinks, Syndtrak or another similar electronic system (the “Platform”) and (b) certain of the Lenders (each, a “Public Lender”) may have personnel who do not wish to receive material non-public information with respect to such Borrower or its Affiliates, or the respective securities of any of the foregoing, and who may be engaged in investment and other market-related activities with respect to such Persons’ securities. Each Borrower hereby agrees that (w) all Borrower Materials that are to be made available to Public Lenders shall be clearly and conspicuously marked “PUBLIC” which, at a minimum, shall mean that the word “PUBLIC” shall appear prominently on the first page thereof; (x) by marking Borrower Materials “PUBLIC,” such Borrower shall be deemed to have authorized the Agent, the Arrangers, the L/C Issuer and the Lenders to treat such Borrower Materials as not containing any material non-public information with respect to such Borrower or its securities for purposes of United States Federal and state securities laws (provided, however, that to the extent such Borrower Materials constitute Information, they shall be treated as set forth in Section 10.07); (y) all Borrower Materials marked “PUBLIC” are permitted to be made available through a portion of the Platform designated “Public Side Information;” and (z) the Agent and the Arrangers shall be entitled to treat any Borrower Materials that are not marked “PUBLIC” as being suitable only for posting on a portion of the Platform not designated “Public Side Information.” Notwithstanding the foregoing, no Borrower shall be under any obligation to xxxx any Borrower Materials “PUBLIC.”
Appears in 2 contracts
Samples: Credit Agreement (Alexander & Baldwin, Inc.), Credit Agreement (Alexander & Baldwin, Inc.)
Financial Information. The Company will furnish Except to each Major Holder the extent such materials are available to the public through the SEC’s Electronic Data Gathering, Analysis, and Retrieval system (also known as “EXXXX”) or its Interactive Data Electronic Applications information set forth in this Section 7.2; providedportal (also known as “IDEA”) or through Bloomberg (or other similar financial information service provider) at the relevant time, that the Company shall not be required agrees to furnish such information to a Major Holder if the Board determines in good faith that such Major Holder is a competitor provide to the Company (provided that in no event shall Kinnevik (or its Affiliates) or Oak (or its Affiliates) be deemed to be a competitor to the Company and that, as of the Effective Date, Walgreens (and its Affiliates) is deemed to not be a competitor to the Company):Investors:
(ai) As as soon as practicable practicable, but in any event within one hundred and twenty (120) days after the end of each fiscal year of the Company, consolidated and in any event within one hundred fifty (150) days thereafter, a copy consolidating income statements and statements of the annual audited financial statements for such fiscal year cash flows for the Company and its Subsidiaries, if any, including therein Subsidiaries for such fiscal year and consolidated and consolidating balance sheets of and accounts receivable aging reports for the Company and its Subsidiaries, if any, Subsidiaries as of the end of such fiscal year and statements of income and members’ equity and of cash flows of the Company for such fiscal year, setting forth in each case in comparative form comparisons to the corresponding figures for Annual Budget and to the preceding fiscal year, all prepared in accordance with generally accepted accounting principles U.S. GAAP, consistently applied (“GAAP”)applied, all such consolidated statements to be duly and audited and certified by the Company’s auditors and accompanied by a copy of such independent public accountants of recognized national standing approved by auditing firm's annual management letter to the Board to prepare such reportsBoard;
(bii) As as soon as available and practicable, but in any event within forty-five (45) days after the end of each fiscal quarter, unaudited financial statements of the first three quarters Company and its Subsidiaries for such fiscal quarter, including unaudited consolidated and consolidating balance sheets of the Company and its Subsidiaries as at the end of such fiscal quarter and the related consolidated and consolidating statements of income and cash flows for such fiscal quarter and for the period from the beginning of the then-current fiscal year to the end of such fiscal quarter, setting forth in each case comparisons to the Annual Budget and to the corresponding period in the preceding fiscal year, all prepared in accordance with U.S. GAAP, consistently applied, subject to changes resulting from audit and normal year-end adjustments made in accordance with U.S. GAAP, consistently applied;
(iii) as soon as practicable, but in any event within fourteen (14) days after the end of each monthly accounting period in each fiscal year, unaudited financial statements of the Company and its Subsidiaries for such monthly period, including unaudited consolidated and consolidating required balance sheet items of the Company and its Subsidiaries as at the end of such monthly period and the related consolidated and consolidating management accounts, required cash flow items and statements of income for such monthly period and for the period from the beginning of the then-current fiscal year to the end of such monthly period, setting forth in each case comparisons to the Annual Budget and to the corresponding period in the preceding fiscal year, all prepared in accordance with U.S. GAAP, consistently applied, subject to changes resulting from audit and normal year-end adjustments made in accordance with U.S. GAAP, consistently applied;
(iv) within thirty (30) days prior to the beginning of each fiscal year of the Company, an unaudited balance sheet Annual Budget in respect of such upcoming fiscal year, to be approved by the Board;
(v) promptly upon receipt thereof, any additional reports, management letters or other detailed information concerning significant aspects of the Company’s or its Subsidiaries’ operations or financial affairs given to the Company by its independent accountants (and not otherwise contained in other materials provided hereunder);
(vi) as soon as available, copies of any communications, or reports or statements furnished to or filed by the Company (other than such information covered under sub clauses (i), (ii) and (iii) above), with the SEC or any securities exchange on which any class of Equity Securities of the Company may be listed;
(vii) promptly (but in any event within five Business Days) after the discovery or receipt of notice of any Event of Default (as such term is defined in the respective 2019 Note), any default under any material agreement to which it or any of its Subsidiaries is a party, any condition or event which is reasonably likely to result in any material adverse effect affecting the Company or any Subsidiary (including, without limitation, the filing of any material litigation against the Company or any Subsidiary or the existence of any dispute with any Person which involves a reasonable likelihood of such litigation being commenced), a certificate from an officer of the Company specifying the nature and period of existence thereof and what actions the Company and its Subsidiaries, if any, as of the end of such quarter Subsidiaries have taken and the related unaudited statements of income and members’ equity and of cash flows of the Company for the period commencing at the end of the previous fiscal year and ending propose to take with the end of such quarter, setting forth in each case in comparative form the corresponding figures for the corresponding period of the preceding fiscal year and the budget for such current year, all in reasonable detail and prepared in accordance with GAAP (subject to year-end audit adjustments and not including all footnotes thereto that may be required in accordance with GAAP);
(c) Upon request (but not more frequently than the delivery of the financial statements described in Sections 7.2(a) and 7.2(b)), a statement showing the number of Units of each class and series of membership interests (including Profits Interests) and securities convertible into or exercisable for Units outstanding at the end of the applicable period, the Junior Units issuable upon conversion or exercise of any outstanding securities convertible or exercisable for Junior Units and the exchange ratio or exercise price applicable respect thereto, and the number of Units not yet issued but reserved for issuance under the Equity Incentive Plan, if any, all in sufficient detail as to permit the Preferred Unit Holders to calculate their respective percentage equity ownership in the Company;
(d) As soon as available and in any event within thirty (30) days after the end of each calendar month, a statement of recognized revenue, bookings and retained earnings on a monthly basis, compared against the corresponding figures from such month from the preceding fiscal year and the budget for such current year; and
(eviii) Not later than sixty (60) days after December 31 of each yearas soon as practicable, an annual budget such other information and quarterly financial data concerning the Company and monthly operating budgets for such fiscal year in a form and with such detail its Subsidiaries as the Investors may be acceptable to a majority of the Directorsreasonably request.
Appears in 2 contracts
Samples: Investors’ Rights Agreement (Joy Capital Opportunity, L.P.), Investors’ Rights Agreement (Eve One Fund II L.P.)
Financial Information. The Company will furnish Borrower shall furnish, or cause to each Major Holder the information set forth in this Section 7.2; providedbe furnished, that the Company shall not be required to furnish such information to a Major Holder if the Board determines in good faith that such Major Holder is a competitor to the Company (provided that in no event shall Kinnevik (or its Affiliates) or Oak (or its Affiliates) be deemed to be a competitor to the Company and that, as of the Effective Date, Walgreens (and its Affiliates) is deemed to not be a competitor to the Company):Lender:
(ai) As soon as practicable Within five (5) days after the end expiration of each fiscal year calendar month, an internally generated income statement showing revenue performance at each operating retail store including number of transactions per day and the Company, and in any event within one hundred fifty (150) days thereafter, a copy of the annual audited financial statements for such fiscal year for the Company and its Subsidiaries, if any, including therein balance sheets of the Company and its Subsidiaries, if any, as of the end of such fiscal year and statements of income and members’ equity and of cash flows of the Company for such fiscal year, setting forth in each case in comparative form the corresponding figures for the preceding fiscal year, all prepared in accordance with generally accepted accounting principles consistently applied (“GAAP”), all such consolidated statements to be duly certified by such independent public accountants of recognized national standing approved by the Board to prepare such reports;average dollar amount per transaction.
(bii) As soon as available and in any event within forty-Within forty five (45) days after the end expiration of each calendar quarter, an internally prepared unaudited balance sheet of the first three quarters Borrower Group as of the close of such calendar quarter, and an internally prepared unaudited statement of income of the Borrower Group for such calendar quarter, prepared in conformity with IFRS (subject to year-end adjustments and the absence of footnotes), applied on a basis consistent with that of the preceding quarter (or accompanied by disclosure of the effect on the financial position or results of operations of the Borrower Group of any change in the application of the accounting principles during such period);
(iii) Within one hundred twenty (120) days after the close of each fiscal year of the CompanyBorrower Group, an audited consolidated, and unaudited consolidating, balance sheet of the Company and its Subsidiaries, if any, Borrower Group as of the end close of such quarter fiscal year, and the related audited consolidated, and unaudited statements consolidating, statement of income income, retained earnings, and members’ equity and of cash flows flow of the Company Borrower Group for the period commencing at the end of the previous such fiscal year and ending year, prepared in conformity with the end of such quarter, setting forth in each case in comparative form the corresponding figures for the corresponding period IFRS applied on a basis consistent with that of the preceding fiscal year (or accompanied by disclosure of the effect on the financial position or results of operations of the Borrower Group of any change in the application of the accounting principles during that year), and accompanied by an opinion or report of such firm of independent certified public accountants as is selected by the budget for Borrower, and acceptable to the Lender, which opinion shall state that such current yearfinancial statements present the financial position of the companies being reported upon and their results of operations and cash flows and have been prepared in conformity with IFRS, all and that the examination of such accountants in reasonable detail and prepared connection with such financial statements has been made in accordance with GAAP (subject to year-end generally accepted auditing standards, and that such audit adjustments and not including all footnotes thereto that may be required provides a reasonable basis for such opinion in accordance with GAAP)the circumstances;
(civ) Upon request (but not more frequently than With the delivery of the financial statements described in Sections 7.2(aSection 5.01(c) (ii) and 7.2(b)(iii), a statement showing the number of Units of each class completed and series of membership interests (including Profits Interests) and securities convertible into or exercisable for Units outstanding at the end of the applicable period, the Junior Units issuable upon conversion or exercise of any outstanding securities convertible or exercisable for Junior Units and the exchange ratio or exercise price applicable thereto, and the number of Units not yet issued but reserved for issuance under the Equity Incentive Plan, if any, all in sufficient detail as to permit the Preferred Unit Holders to calculate their respective percentage equity ownership signed “Covenant Compliance Certificate,” in the Companyform attached hereto as Exhibit 5.01(c)(iv);
(dv) As soon as available and in any event within thirty Within ten (3010) days after the end of each calendar monthfiscal quarter, the Borrower shall deliver to the Lender a statement of recognized revenue, bookings and retained earnings on a monthly basis, compared against the corresponding figures from such month from the preceding fiscal year and the budget for such current yearValuation Statement; and
(evi) Not later than sixty Within thirty (6030) days of request by the Lender, such other financial information as the Lender may reasonably request. In the event the Borrower fails to provide any or all of the financial reporting information required herein, the Borrower shall have ten (10) days after December 31 notice from Lender to provide such financial reporting information before it shall be an Event of each year, an annual budget and quarterly and monthly operating budgets for such fiscal year in a form and with such detail as may be acceptable to a majority of the DirectorsDefault hereunder.
Appears in 2 contracts
Samples: Senior Secured Commercial Loan Agreement (MedMen Enterprises, Inc.), Senior Secured Commercial Loan Agreement
Financial Information. The Company will furnish the following reports (i) to each Major Holder the information set forth in this Section 7.2; providedSega Enterprises, that the Company shall not be required Ltd., (ii) to furnish such information Itochu Corporation and Itochu Technology, Inc., collectively, (iii) to a Major Holder if the Board determines in good faith that such Major Holder is a competitor to the Company Worldview Technology Partners I, L.P. and its affiliates (provided that in no event shall Kinnevik collectively, "Worldview"), so long as Worldview owns at least four hundred thousand (400,000) shares of Preferred Stock or its Affiliates) or Oak (or its Affiliates) be deemed to be a competitor to the Company and that, as Common Stock issued upon conversion of the Effective DatePreferred Stock, Walgreens or any combination thereof, (iv) to any other Holder, so long as such Holder (and its Affiliatesaffiliates) is deemed owns at least one million (1,000,000) shares of Preferred Stock or Common Stock issued upon conversion of the Preferred Stock, or any combination thereof (as presently constituted and subject to not be a competitor to subsequent adjustment for stock splits, stock dividends, reverse stock splits, recapitalizations and the Companylike):
(a) As soon as practicable after the end of each fiscal year of the Company, and in any event within one hundred fifty ninety (15090) days thereafter, a copy of the annual audited financial statements for such fiscal year for the Company and its Subsidiaries, if any, including therein consolidated balance sheets sheet of the Company and its Subsidiariessubsidiaries, if any, as of at the end of such fiscal year year, and consolidated statements of income and members’ equity and of cash flows of the Company and its subsidiaries, if any, for such fiscal year, setting forth in each case in comparative form the corresponding figures for the preceding fiscal year, all prepared in accordance with generally accepted accounting principles consistently applied (“GAAP”)and setting forth in each case in comparative form the figures for the previous fiscal year, all such consolidated statements to be duly in reasonable detail and certified by such independent public accountants of recognized national standing approved selected by the Board to prepare such reports;Company.
(b) As soon as available practicable after the end of the first, second, and third quarterly accounting periods in each fiscal year of the Company, and in any event within forty-five (45) days after the end of each of the first three quarters of each fiscal year of the Companythereafter, an unaudited a consolidated balance sheet of the Company and its Subsidiariessubsidiaries, if any, as of the end of each such quarter quarterly period, and the related unaudited consolidated statements of income and members’ equity and of cash flows of the Company and its subsidiaries for such period and for the period commencing at current fiscal year to date, prepared in accordance with generally accepted accounting principles consistently applied and setting forth in comparative form the end figures for the corresponding periods of the previous fiscal year and ending with the year, subject to changes resulting from normal year-end of such quarter, setting forth in each case in comparative form the corresponding figures for the corresponding period of the preceding fiscal year and the budget for such current yearaudit adjustments, all in reasonable detail and prepared in accordance with GAAP (subject to year-end audit adjustments and certified by the principal financial or accounting officer of the Company, except that such financial statements need not including all footnotes thereto that may be contain the notes required in accordance with GAAP);by generally accepted accounting principles.
(c) Upon request From the date the Company becomes subject to the reporting requirements of the Exchange Act (but not more frequently than the delivery which shall include any successor federal statute), and in lieu of the financial statements described in information required pursuant to Sections 7.2(a2.1(a) and 7.2(b)(b), a statement showing the number copies of Units of each class its annual reports on Form 10-K and series of membership interests (including Profits Interests) and securities convertible into or exercisable for Units outstanding at the end of the applicable periodit quarterly reports on Form 10-Q, the Junior Units issuable upon conversion or exercise of any outstanding securities convertible or exercisable for Junior Units and the exchange ratio or exercise price applicable thereto, and the number of Units not yet issued but reserved for issuance under the Equity Incentive Plan, if any, all in sufficient detail as to permit the Preferred Unit Holders to calculate their respective percentage equity ownership in the Company;
(d) As soon as available and in any event within thirty (30) days after the end of each calendar month, a statement of recognized revenue, bookings and retained earnings on a monthly basis, compared against the corresponding figures from such month from the preceding fiscal year and the budget for such current year; and
(e) Not later than sixty (60) days after December 31 of each year, an annual budget and quarterly and monthly operating budgets for such fiscal year in a form and with such detail as may be acceptable to a majority of the Directorsrespectively.
Appears in 2 contracts
Samples: Investors' Rights Agreement (Nvidia Corp/Ca), Investors' Rights Agreement (Nvidia Corp/Ca)
Financial Information. The Company will furnish to each Major Holder the information set forth in this Section 7.2; provided, that the Company shall not be required to furnish such information to a Major Holder if the Board determines in good faith that such Major Holder is a competitor to the Company (provided that in no event shall Kinnevik (or its Affiliates) or Oak (or its Affiliates) be deemed to be a competitor to the Company and that, as of the Effective Date, Walgreens (and its Affiliates) is deemed to not be a competitor to the Company):
(a) As soon The consolidated and consolidating statement of financial condition of DFC and its consolidated Subsidiaries as practicable at December 31, 1998 and the related consolidated and consolidating statements of income and cash flows for the fiscal year then ended, including in each case the related schedules and notes, reported on by PricewaterhouseCoopers LLP, true copies of which have been previously delivered to each of the Lenders, are complete and correct and fairly present the consolidated and consolidating financial condition of DFC and its consolidated Subsidiaries as at the date thereof and the consolidated and consolidating results of operations and cash flows for such period, in accordance with GAAP applied on a consistent basis.
(b) The unaudited consolidated and consolidating statement of financial condition of each Borrower and its consolidated Subsidiaries as at March 31, 1999, and the related unaudited combined statements of income and cash flows for the three months then ended, certified by the chief financial officer of DFC, true copies of which have been previously delivered to each of the Lenders, are complete and correct and fairly present the consolidated and consolidating financial condition of DFC and its consolidated Subsidiaries as at the date thereof and the consolidated and consolidating results of operations and cash flows for such period in conformity with GAAP applied on a basis consistent with the financial statements referred to in subsection (a) of this Section 4.4, subject to normal year-end audit adjustments.
(c) Neither Borrower has any material liability of any kind, whether accrued, contingent, absolute, determined, determinable or otherwise, and no condition, situation or set of circumstances exists that could be reasonably expected to result in such a liability, in each case that is not reflected in the financial statements referred to in Section 4.4(b) or in the most recent financial statements delivered to the Agent and the Lenders pursuant to Section 5.1(a)(i) or (ii) (other than liabilities permitted hereunder and incurred after the end date of each fiscal year of the Company, and in any event within one hundred fifty (150) days thereafter, a copy of the annual audited such most recent financial statements for such fiscal year for and to be reflected in the Company next financial statements to be delivered to the Agent and the Lenders pursuant to Section 5.1 (a)(i) or (ii)).
(d) Since December 31, 1998, no material adverse change has occurred in the business, financial condition or results of operations of DFC and its Subsidiaries, if any, including therein balance sheets of the Company and its Subsidiaries, if any, taken as of the end of such fiscal year and statements of income and members’ equity and of cash flows of the Company for such fiscal year, setting forth in each case in comparative form the corresponding figures for the preceding fiscal year, all prepared in accordance with generally accepted accounting principles consistently applied (“GAAP”), all such consolidated statements to be duly certified by such independent public accountants of recognized national standing approved by the Board to prepare such reports;
(b) As soon as available and in any event within forty-five (45) days after the end of each of the first three quarters of each fiscal year of the Company, an unaudited balance sheet of the Company and its Subsidiaries, if any, as of the end of such quarter and the related unaudited statements of income and members’ equity and of cash flows of the Company for the period commencing at the end of the previous fiscal year and ending with the end of such quarter, setting forth in each case in comparative form the corresponding figures for the corresponding period of the preceding fiscal year and the budget for such current year, all in reasonable detail and prepared in accordance with GAAP (subject to year-end audit adjustments and not including all footnotes thereto that may be required in accordance with GAAP);
(c) Upon request (but not more frequently than the delivery of the financial statements described in Sections 7.2(a) and 7.2(b)), a statement showing the number of Units of each class and series of membership interests (including Profits Interests) and securities convertible into or exercisable for Units outstanding at the end of the applicable period, the Junior Units issuable upon conversion or exercise of any outstanding securities convertible or exercisable for Junior Units and the exchange ratio or exercise price applicable thereto, and the number of Units not yet issued but reserved for issuance under the Equity Incentive Plan, if any, all in sufficient detail as to permit the Preferred Unit Holders to calculate their respective percentage equity ownership in the Company;
(d) As soon as available and in any event within thirty (30) days after the end of each calendar month, a statement of recognized revenue, bookings and retained earnings on a monthly basis, compared against the corresponding figures from such month from the preceding fiscal year and the budget for such current year; and
(e) Not later than sixty (60) days after December 31 of each year, an annual budget and quarterly and monthly operating budgets for such fiscal year in a form and with such detail as may be acceptable to a majority of the Directorswhole.
Appears in 2 contracts
Samples: Credit Agreement (Doral Financial Corp), Credit Agreement (Doral Financial Corp)
Financial Information. The Company will maintain true books and records of account in which full and correct entries will be made of all its business transactions pursuant to a system of accounting established and administered in accordance with generally accepted accounting principles consistently applied, and will set aside on its books all such proper accruals and reserves as shall be required under generally accepted accounting principles consistently applied. So long as an Investor is a holder of at least 400,000 shares of the Series B-1 Preferred Stock (as adjusted for any stock splits, consolidations, reorganizations and the like) or a number of Shares equal to at least 1,000,000 of the Registrable Securities (as appropriately adjusted for any stock splits, consolidations, reorganizations and the like), the Company will furnish to each Major Holder such Investor the information set forth in this Section 7.2; provided, that the Company shall not be required to furnish such information to a Major Holder if the Board determines in good faith that such Major Holder is a competitor to the Company (provided that in no event shall Kinnevik (or its Affiliates) or Oak (or its Affiliates) be deemed to be a competitor to the Company and that, as of the Effective Date, Walgreens (and its Affiliates) is deemed to not be a competitor to the Company):following reports:
(a) As soon as practicable after the end of each fiscal year of the Companyyear, and in any event within one hundred fifty ninety (15090) days thereafter, a copy of the annual audited financial statements for such fiscal year for the Company and its Subsidiaries, if any, including therein consolidated balance sheets of the Company and its Subsidiariessubsidiaries, if any, as of the end of such fiscal year year, and consolidated statements of income and members’ equity and of cash flows of the Company and its subsidiaries, if any, for such fiscal year, prepared in accordance with generally accepted accounting principles and setting forth in each case in comparative form the corresponding figures for the preceding previous fiscal year, all prepared in accordance with generally accepted accounting principles consistently applied (“GAAP”), all such consolidated statements to be duly reasonable detail and certified by such independent public accountants of recognized national standing approved selected by the Board to prepare such reports;Company; and
(b) As soon as available and practicable, but in any event within forty-five (45) days after the end of each of the first three (3) quarters of each fiscal year of the Company, an unaudited profit or loss statement, schedule as to the sources and application of funds for such fiscal quarter and an unaudited balance sheet of the Company and its Subsidiariessubsidiaries, if any, as of the end of such quarter and the related unaudited statements of income and members’ equity and of cash flows of the Company for the period commencing at the end of the previous fiscal year and ending with the end of such quarter, setting forth in each case in comparative form the corresponding figures for the corresponding period of the preceding fiscal year and the budget for such current year, all in reasonable detail and prepared in accordance with GAAP (subject to generally accepted accounting principles, with the exception that no notes need be attached and year-end audit adjustments may not have been made, and not including a statement of stockholder's equity, all footnotes thereto that may be required in accordance with GAAP);
(c) Upon request (but not more frequently than for such quarter and for the delivery of the financial statements described in Sections 7.2(a) current year to date and 7.2(b)), a statement showing the number of Units shares of each class and series of membership interests (including Profits Interests) capital stock and securities convertible into or exercisable for Units shares of capital stock outstanding at the end of the applicable period, the Junior Units number of common shares issuable upon conversion or exercise of any outstanding securities convertible or exercisable for Junior Units common shares and the exchange ratio or exercise price applicable thereto, and the number of Units not yet issued but reserved for issuance under the Equity Incentive Plan, if any, all in sufficient detail as to permit the Preferred Unit Holders Investor to calculate their respective its percentage equity ownership in the Company;.
(c) No later than sixty (60) days prior to the end of each fiscal year, an annual budget for the upcoming fiscal year.
(d) As soon as available and in any event within thirty (30) days practicable after the end of each calendar month, a statement and in any event within 30 days thereafter, unaudited consolidated balance sheets of recognized revenuethe Company and its subsidiaries, bookings if any, as of the end of each calendar month, and retained earnings on a monthly basis, compared against unaudited consolidated statements of profit or loss and of cash flow for such period and for the current fiscal year to date and setting forth in each case in comparative form the figures for the corresponding figures from such month from periods of the preceding previous fiscal year and the budget for such current year; and.
(e) Not later than sixty (60) days after December 31 of each yearSuch other information relating to the financial condition, an annual budget and quarterly and monthly operating budgets for such fiscal year in a form and with such detail as may be acceptable to a majority business or corporate affairs of the DirectorsCompany as the Investor may from time to time request, provided, however, that the Company shall not be obligated under this subsection (e) or any other subsection of Section 3.1 to provide information that it deems in good faith to be a trade secret or similar confidential information.
Appears in 2 contracts
Samples: Investor Rights Agreement (Omneon Video Networks, Inc.), Investor Rights Agreement (Omneon Video Networks, Inc.)
Financial Information. The Company will furnish the following reports --------------------- to each Major Holder the information set forth in this Section 7.2; provided, that the Company shall not be required for so long as such Holder continues to furnish such information to a Major Holder if the Board determines in good faith that such Major Holder is a competitor to the Company hold 50,000 shares of Preferred or Common Stock (provided that in no event shall Kinnevik (or its Affiliates) or Oak (or its Affiliates) be deemed to be a competitor to the Company and that, as of the Effective Date, Walgreens (and its Affiliates) is deemed to not be a competitor to the Companyadjusted for Recapitalizations):
(a) As soon as practicable after the end of each fiscal year of the Companyyear, and in any event within one hundred fifty ninety (15090) days thereafter, a copy each Purchaser shall receive audited consolidated balance sheets, consolidated statements of the annual audited financial statements for such fiscal year for the Company income, shareholders' equity and its Subsidiaries, if any, including therein balance sheets cash flow of the Company and its Subsidiariessubsidiaries, if any, as of the end of such fiscal year and statements of income and members’ equity and of cash flows of the Company for such fiscal year, setting forth in each case in comparative form the corresponding figures for the preceding fiscal year, all prepared in accordance with generally accepted accounting principles consistently applied (“GAAP”)and setting forth in each case comparative figures for the previous fiscal year, all such consolidated statements to be duly certified by such independent public accountants of recognized national standing approved selected by the Board Company. Together with each delivery of annual financial statements of the Company pursuant to prepare this subsection (a), the Company will deliver a certificate of its Chief Financial Officer stating that no violation of the Company's covenants under this Agreement exists, or if such reports;a violation exists, then specifying the nature thereof, the period of existence thereof, and what action the Company proposes to take with respect thereto.
(b) As soon as available available, and in any event within forty-five (45) days after the end of each of the first three quarters of first, second and third quarterly accounting periods in each fiscal year of the Company, an each Purchaser shall receive a financial summary of such quarter, in a form provided by the Series B Purchasers, certified by the Chief Financial Officer of the Company.
(c) As soon as available, and in any event within twenty (20) days after the end of each month, the Company shall furnish each Purchaser with unaudited consolidated monthly financial statements, including a consolidated balance sheet of the Company and its Subsidiaries, if any, as of the end of such quarter and the month, together with related unaudited consolidated statements of income and members’ operations, changes in shareholders' equity and of cash flows of the Company for the period commencing at the end of the previous fiscal year and ending with the end of such quarter, setting forth in each case in comparative form the corresponding figures for the corresponding period of the preceding fiscal year and the budget for such current month and year-to-date, all in reasonable detail and prepared in accordance with GAAP generally accepted accounting principles consistently applied (with the exception of full footnote disclosures, schedules and precise period cutoffs) and certified by the Chief Financial Officer of the Company, subject to usual year-end audit adjustments and not including all footnotes thereto that may be required in accordance adjustments, together with GAAP);
(c) Upon request (but not more frequently than the delivery a written comparison of the results as reported on such financial statements described with the projections thereof contained in Sections 7.2(a) and 7.2(b)), a statement showing the number of Units of each class and series of membership interests (including Profits Interests) and securities convertible into or exercisable for Units outstanding at the end of the applicable period, the Junior Units issuable upon conversion or exercise of any outstanding securities convertible or exercisable for Junior Units and the exchange ratio or exercise price applicable thereto, and the number of Units not yet issued but reserved for issuance under the Equity Incentive Plan, if any, all in sufficient detail Annual Budget (as to permit the Preferred Unit Holders to calculate their respective percentage equity ownership in the Company;defined below).
(d) As soon as available available, and in any event within thirty twenty (3020) days after prior to the end of each calendar monthfiscal year (except with respect to fiscal 1997, a statement which shall be by January 30, 1997), the Company shall furnish each Purchaser with an annual budget and strategic plan (the "Annual Budget") of recognized revenuethe Company for the ------------- next following fiscal year consisting of (i) projected consolidated statements of operations, bookings changes in shareholders' equity and retained earnings cash flows, each on a monthly basis, compared against for each of the corresponding figures from calendar months of such month from the preceding fiscal year and the budget for such current year; and(ii) a projected consolidated balance sheet as of the close of each calendar month; (iii) projected capital expenditures for each month; and (iv) promptly upon making thereof, any revision or updating which may be made of any such Annual Budget. Each such Annual Budget and any revisions thereof shall be submitted for the approval of the Board and be subject to revision or updating by the Board.
(e) Not later than sixty (60) days after December 31 Promptly upon receipt thereof, a copy of each yearreport or management letter, an if any, submitted to the Company by independent public accountants in connection with each annual budget audit (and quarterly and monthly operating budgets for such fiscal year in a form and with such detail as any other audit which may be acceptable to a majority performed) of the Directorsbooks of the Company made by such accountants.
Appears in 2 contracts
Samples: Shareholder Rights Agreement (Talk City Inc), Shareholder Rights Agreement (Talk City Inc)
Financial Information. The Company will furnish Cause to each Major Holder the information set forth in this Section 7.2; provided, that the Company shall not be required to furnish such information to a Major Holder if the Board determines in good faith that such Major Holder is a competitor delivered to the Company (provided that in no event shall Kinnevik (or its Affiliates) or Oak (or its Affiliates) be deemed to be a competitor to the Company and that, as of the Effective Date, Walgreens (and its Affiliates) is deemed to not be a competitor to the Company):Bank: ---------------------
(a) 6.6.1 As soon as practicable and in any event within 51 days after the end of each fiscal quarter of each fiscal year of the Borrower an unaudited balance sheet of the Borrower as at the end of such period and the related statements of operations, stockholders' equity (deficiency) and cash flow of the Borrower for such quarter setting forth in each case in comparative form the figures for the corresponding periods of the previous fiscal year, all in reasonable detail and certified by the Chief Financial Officer of the Borrower that they fairly present the financial condition of the Borrower as at the dates indicated and the results of its operations for the periods indicated, subject to changes resulting from audit and normal year-end adjustment;
6.6.2 As soon as practicable and in any event within 105 days after the end of each fiscal year of the CompanyBorrower, and in any event within one hundred fifty (150) days thereafter, a copy of the annual audited financial statements for such fiscal year for the Company and its Subsidiaries, if any, including therein balance sheets of the Company and its Subsidiaries, if any, Borrower as of at the end of such fiscal year and the related statements of income operations, stockholders' equity (deficiency) and members’ equity and of cash flows flow of the Company Borrower for such fiscal year, setting forth in each case case, in comparative form the corresponding figures for the preceding fiscal year, all prepared in accordance with generally accepted accounting principles consistently applied (“GAAP”), all such consolidated statements to be duly certified by such independent public accountants of recognized national standing approved by the Board to prepare such reports;
(b) As soon as available and in any event within forty-five (45) days after the end of each of the first three quarters of each fiscal year of the Company, an unaudited balance sheet of the Company and its Subsidiaries, if any, as of the end of such quarter and the related unaudited statements of income and members’ equity and of cash flows of the Company for the period commencing at the end of the previous fiscal year and ending with the end of such quarter, setting forth in each case in comparative form the corresponding figures for the corresponding period of the preceding fiscal year and the budget for such current year, all in reasonable detail and prepared (i) in the case of such financial statements, accompanied by a report thereon of BDO Xxxxxxx or other independent certified public accountants of recognized international standing selected by the Borrower which reports shall state that such financial statements present fairly the financial position of the Borrower as at the dates indicated and the results of their operations and cash flow for the periods indicated in conformity with GAAP applied on a basis consistent with prior years (except as otherwise stated therein) and that the examination by such accountants in connection with such financial statements has been made in accordance with GAAP generally accepted auditing standards and (subject to year-end audit adjustments and not including all footnotes thereto that may be required ii) in accordance with GAAP)the case of such financial statements, certified by the chief financial or other senior officer of the Borrower, as applicable;
(c) Upon request (but not more frequently than the delivery of the financial statements described in Sections 7.2(a) and 7.2(b)), a statement showing the number of Units of each class and series of membership interests (including Profits Interests) and securities convertible into or exercisable for Units outstanding at the end of the applicable period, the Junior Units issuable upon conversion or exercise of any outstanding securities convertible or exercisable for Junior Units and the exchange ratio or exercise price applicable thereto, and the number of Units not yet issued but reserved for issuance under the Equity Incentive Plan, if any, all in sufficient detail as to permit the Preferred Unit Holders to calculate their respective percentage equity ownership in the Company;
(d) 6.6.3 As soon as available practicable and in any event within thirty (30) 30 days after the end of each calendar month, a monthly statement comparing actual collection of recognized revenue, bookings and retained earnings on a monthly basis, compared against the corresponding figures from such month from the preceding fiscal year and the budget for such current year; and
(e) Not later than sixty (60) days after December 31 of each year, an annual budget and quarterly and monthly operating budgets for such fiscal year in a form and License Payments with such detail as may be acceptable to a majority of the Directorsprojected collections.
Appears in 2 contracts
Samples: Credit Loan and Security Agreement (Video City Inc), Credit Loan and Security Agreement (Video City Inc)
Financial Information. The In addition to, and without limiting any rights that the DHC Parties may have with respect to the inspection of the books and records of the Company will under Applicable Law, the Company shall furnish to each Major Holder DHC Party, the information set forth in this Section 7.2; provided, that the Company shall not be required to furnish such information to a Major Holder if the Board determines in good faith that such Major Holder is a competitor to the Company (provided that in no event shall Kinnevik (or its Affiliates) or Oak (or its Affiliates) be deemed to be a competitor to the Company and that, as of the Effective Date, Walgreens (and its Affiliates) is deemed to not be a competitor to the Company):following information:
(a) As as soon as practicable after the end of each fiscal year of the Companyavailable, and in any event within one hundred fifty (150) days thereafter, a copy of the annual audited financial statements for such fiscal year for the Company and its Subsidiaries, if any, including therein balance sheets of the Company and its Subsidiaries, if any, as of the end of such fiscal year and statements of income and members’ equity and of cash flows of the Company for such fiscal year, setting forth in each case in comparative form the corresponding figures for the preceding fiscal year, all prepared in accordance with generally accepted accounting principles consistently applied (“GAAP”), all such consolidated statements to be duly certified by such independent public accountants of recognized national standing approved by the Board to prepare such reports;
(b) As soon as available and in any event within forty-five (45) days after following the end of each of Fiscal Year, the first three quarters of each fiscal year of the Company, an unaudited audited consolidated balance sheet of the Company and its Subsidiaries, if any, Subsidiaries as of the end of such quarter and the related unaudited statements of income and members’ equity and of cash flows of the Company for the period commencing at the end of each such Fiscal Year and the previous fiscal year audited consolidated statements of income, cash flows and ending with the end of such quarter, setting forth changes in each case in comparative form the corresponding figures for the corresponding period stockholders’ equity of the preceding fiscal year Company and the budget its Subsidiaries for such current yearFiscal Year, all in reasonable detail and accompanied by the certification of independent certified public accountants of recognized national standing selected by the Directors, to the effect that, except as set forth therein, such financial statements have been prepared in accordance with GAAP (subject to year-end audit adjustments GAAP, applied on a basis consistent with prior years and not including fairly present in all footnotes thereto that may be required material respects the consolidated financial condition of the Company and its Subsidiaries as of the dates thereof and the results of its operations and changes in accordance with GAAP)its cash flows and stockholders’ equity for the periods covered thereby;
(cb) Upon request (but not more frequently than the delivery of the financial statements described in Sections 7.2(a) and 7.2(b)), a statement showing the number of Units of each class and series of membership interests (including Profits Interests) and securities convertible into or exercisable for Units outstanding at the end of the applicable period, the Junior Units issuable upon conversion or exercise of any outstanding securities convertible or exercisable for Junior Units and the exchange ratio or exercise price applicable thereto, and the number of Units not yet issued but reserved for issuance under the Equity Incentive Plan, if any, all in sufficient detail as to permit the Preferred Unit Holders to calculate their respective percentage equity ownership in the Company;
(d) As soon as available available, and in any event within thirty (30) days after following the end of each calendar monthfiscal quarter, a statement the unaudited consolidated balance sheet of recognized revenue, bookings the Company and retained earnings on a monthly basis, compared against its Subsidiaries at the corresponding figures from end of such month from the preceding fiscal year quarter and the budget unaudited consolidated statements of income, cash flows and changes in stockholders’ equity of the Company and its Subsidiaries for such current yearquarter, all in reasonable detail and all prepared in accordance with GAAP, consistently applied and certified by the Company’s Chief Financial Officer;
(c) draft financial statements related to the Fiscal Year and each fiscal quarter shall be provided within thirty (30) days and twenty (20) days, respectively, following the end of the period in question; and
(ed) Not later than sixty (60) days after December 31 to the extent the Company or any of each year, an annual budget and quarterly and monthly operating budgets for such fiscal year in a form and with such detail as may be acceptable its Subsidiaries is required by Applicable Law or pursuant to a majority the terms of any outstanding indebtedness of the DirectorsCompany to prepare such reports, any annual reports, quarterly reports and other periodic reports actually prepared by the Company or Subsidiary promptly following filing or submission thereof.
Appears in 2 contracts
Samples: Stockholders Agreement (Diversified Healthcare Trust), Stockholders Agreement (Diversified Healthcare Trust)
Financial Information. The Subject to Section 8.10, the Company will furnish to each Major Holder the information set forth in this Section 7.2; provided, that the Company shall not be required to furnish such information to a Major Holder if the Board determines in good faith that such Major Holder is a competitor deliver or provide to the Company (provided that in no event shall Kinnevik (or its Affiliates) or Oak (or its Affiliates) be deemed to be a competitor to the Company and that, as of the Effective Date, Walgreens (and its Affiliates) is deemed to not be a competitor to the Company):Purchasers:
(a) As as soon as practicable after the end of each fiscal year of the Companyyear, and in any event within one hundred fifty (150) 120 days thereafter, a copy of (i) the annual audited financial statements for such fiscal year for the Company and its Subsidiaries, if any, including therein balance sheets sheet of the Company and its Subsidiaries, if any, as of the end of such fiscal year and statements a statement of income operations and members’ equity and of cash flows flow of the Company for such fiscal year, prepared in accordance with GAAP and setting forth in each case in comparative form the corresponding figures similar information for the preceding previous fiscal year, all prepared in accordance with generally accepted accounting principles consistently applied (“GAAP”), all such consolidated statements to be duly certified reasonable detail and audited by such independent public accountants of recognized national standing approved selected by the Board to prepare such reportsCompany and (ii) a reserve report audited by an independent reservoir reserve auditing firm of national standing selected by the Company;
(b) As as soon as available practicable after the end of the first, second and third quarterly accounting periods in each fiscal year of the Company and in any event within forty45 days thereafter, a balance sheet of the Company as of the end of each such quarterly period and a statement of operations and cash flow of the Company for such period and for the current fiscal year to date, prepared in accordance with GAAP (other than for accompanying notes and subject to normal year-five end audit adjustments), all in reasonable detail and certified by the principal financial or accounting officer of the Company that they were so prepared;
(45c) days as soon as practicable after the end of each of the first three quarters of each fiscal year of the Companymonth, and in any event within 30 days thereafter, an unaudited balance sheet of the Company and its Subsidiaries, if any, as of the end of such quarter month, an unaudited statement of operations and the related unaudited statements of income cash flow for each month, together with a monthly internal management report and members’ equity bi-weekly staff reports, and of cash flows of the Company for the period commencing at the end of the previous current fiscal year and ending to date. Such fiscal statements shall be prepared in accordance with the end of such quarter, setting forth in each case in comparative form the corresponding figures for the corresponding period of the preceding fiscal year and the budget for such current yearGAAP consistently applied (other than accompanying notes), all in reasonable detail and prepared in accordance with GAAP (signed, subject to year-end audit adjustments and not including all footnotes thereto that may be required in accordance with GAAP);
(c) Upon request (but not more frequently than adjustments, by the delivery principal financial or accounting officer of the financial statements described in Sections 7.2(a) and 7.2(b)), a statement showing the number of Units of each class and series of membership interests (including Profits Interests) and securities convertible into or exercisable for Units outstanding at the end of the applicable period, the Junior Units issuable upon conversion or exercise of any outstanding securities convertible or exercisable for Junior Units and the exchange ratio or exercise price applicable thereto, and the number of Units not yet issued but reserved for issuance under the Equity Incentive Plan, if any, all in sufficient detail as to permit the Preferred Unit Holders to calculate their respective percentage equity ownership in the Company;; and
(d) As soon as available and in any event within thirty (30) 30 days after prior to the end beginning of each calendar month, a statement of recognized revenue, bookings and retained earnings on a monthly basis, compared against the corresponding figures from such month from the preceding fiscal year and the budget for such current year; and
(e) Not later than sixty (60) days after December 31 of each year, an annual budget plan (the "Annual Plan"). The Annual Plan shall set forth in reasonable detail forecasted balance sheets, statements of operations and quarterly and monthly operating budgets statements of cash flows for such fiscal year in a form and with such detail as may be acceptable to a majority of the Directorsfor each month within that year.
Appears in 2 contracts
Samples: Stock Purchase Agreement (Energy Partners LTD), Stock Purchase Agreement (Energy Partners LTD)
Financial Information. The Company will furnish to each Major Holder the information set forth in this Section 7.2; provided, that the Company shall not be required to furnish such information to a Major Holder if the Board determines in good faith that such Major Holder is a competitor to Investor the Company (provided that in no event shall Kinnevik (or its Affiliates) or Oak (or its Affiliates) be deemed to be a competitor to the Company and that, as of the Effective Date, Walgreens (and its Affiliates) is deemed to not be a competitor to the Company):following reports:
(a) As soon as practicable after the end of each fiscal year of the Companyyear, and in any event within one hundred fifty twenty (150120) days thereafterthereafter (or such longer period as is approved by the Board, a copy including each of the annual Preferred Directors), audited financial statements for such fiscal year for the Company and its Subsidiaries, if any, including therein consolidated balance sheets of the Company and its Subsidiariessubsidiaries, if any, as of the end of such fiscal year year, and consolidated statements of income and members’ equity and of cash flows of the Company and its subsidiaries, if any, for such fiscal year, setting forth in each case in comparative form the corresponding figures for the preceding fiscal year, all prepared in accordance with generally accepted accounting principles consistently applied (“GAAP”)and setting forth in each case in comparative form the figures for the previous fiscal year, all such consolidated statements to be duly in reasonable detail and certified by such independent public accountants of recognized national standing approved selected by the Board to prepare such reportsCompany;
(b) As soon as available and practicable, but in any event within forty-five (45) days after the end of each of the first three quarters quarter of each fiscal year of the Company, an unaudited consolidated balance sheet sheets of the Company and its Subsidiariessubsidiaries, if any, as of the end of such quarter quarterly period, and the related unaudited consolidated statements of income and members’ equity and of cash flows of the Company and its subsidiaries, if any, for the period commencing at the end of the previous fiscal year such quarterly period, prepared in accordance with generally accepted accounting principles consistently applied and ending with the end of such quarter, setting forth in each case in comparative form the corresponding figures for the corresponding period quarterly periods of the preceding previous fiscal year and the budget for such current figures projected by the Company’s annual budget, subject to changes resulting from normal year-end audit adjustments, all in reasonable detail and prepared in accordance with GAAP (subject to year-end audit adjustments and certified by the principal financial or accounting officer of the Company, except such financial statements need not including all footnotes thereto that may be contain the notes required in accordance with GAAP)by generally accepted accounting principles;
(c) Upon request As soon as practicable after the end of each calendar month, and in any event within thirty (but not more frequently than the delivery 30) days thereafter, consolidated balance sheets of the financial Company and its subsidiaries, if any, as of the end of each calendar month setting forth in comparative form the results projected by the Company’s annual budget, and consolidated statements described in Sections 7.2(aof income and cash flow for such period and for the current fiscal year to date;
(d) and 7.2(b))As soon as practicable after the end of each fiscal quarter, a statement showing the number of Units shares of each class and series of membership interests (including Profits Interests) capital stock and securities convertible into or exercisable for Units shares of capital stock outstanding at the end of the applicable quarterly period, and the Junior Units number of common shares issuable upon conversion or exercise of any outstanding securities convertible or exercisable for Junior Units common shares and the exchange ratio or exercise price applicable thereto, and the number of Units not yet issued but reserved for issuance under the Equity Incentive Plan, if any, all in sufficient detail as to permit the Preferred Unit Holders Major Investor to calculate their respective its percentage equity ownership in the Company;
(d) As soon as available and in any event within thirty (30) days after the end of each calendar month, a statement of recognized revenue, bookings and retained earnings on a monthly basis, compared against the corresponding figures from such month from the preceding fiscal year and the budget for such current year; and
(e) Not later than sixty (60) days after December 31 of each year, an annual budget and quarterly and monthly operating budgets for such fiscal year in a form and with such detail as may be acceptable to a majority of the Directors.
Appears in 2 contracts
Samples: Registration Rights Agreement (Complete Genomics Inc), Investor Rights Agreement (Complete Genomics Inc)
Financial Information. The Company will Lessee also agrees to furnish to each Major Holder Lessor during the information set Lease Term:
(1) as soon as possible and in any event within ten (10) days after the occurrence of a Default or Lessee Event of Default, a certificate of Lessee, signed by a vice president of Lessee, setting forth in detail the nature of such Default or Lessee Event of Default and the action which the Lessee proposes to take with respect thereto;
(2) from time to time, such information as Lessor may reasonably request with respect to the operations of Lessee in order to determine whether the covenants, terms and provisions of this Section 7.2; provided, that the Company shall not Lease have been complied with by Lessee;
(3) such information as may be required to furnish such information enable Lessor to a Major Holder if the Board determines in good faith that such Major Holder is a competitor to the Company (provided that in no event shall Kinnevik (or its Affiliates) or Oak (or its Affiliates) be deemed file any reports required to be a competitor to the Company and that, as filed with any Governmental Authority because of Lessor's ownership of the Effective Date, Walgreens (and its Affiliates) is deemed to not be a competitor to the Company):Items of Equipment;
(a4) As as soon as practicable after the available, quarterly and year-end unaudited Reports of each fiscal year Financial and Operating Statistics for Large Certified Air Carriers (U.S. Department of the CompanyTransportation Form 41 Schedule A);
(5) as soon as available, and in any event within one hundred fifty sixty (150) days thereafter, a copy of the annual audited financial statements for such fiscal year for the Company and its Subsidiaries, if any, including therein balance sheets of the Company and its Subsidiaries, if any, as of the end of such fiscal year and statements of income and members’ equity and of cash flows of the Company for such fiscal year, setting forth in each case in comparative form the corresponding figures for the preceding fiscal year, all prepared in accordance with generally accepted accounting principles consistently applied (“GAAP”), all such consolidated statements to be duly certified by such independent public accountants of recognized national standing approved by the Board to prepare such reports;
(b) As soon as available and in any event within forty-five (4560) days after the end of each of the first three quarters of each fiscal year of the Companyquarters, an unaudited balance sheet of the Company Lessee and its Subsidiaries, if anyconsolidated subsidiaries, as of the end of such quarter and the related unaudited statements of income and members’ equity and of cash flows retained earnings of the Company for the period commencing at the end of the previous fiscal year Lessee and ending with the end of such quarterits consolidated subsidiaries, setting forth in each case in comparative form the corresponding figures for the corresponding period of the preceding fiscal year;
(6) as soon as available, and in any event within 120 days after the end of each fiscal year of Lessee, a financial report for the Lessee for such year, including therein a balance sheet of Lessee as of the end of such fiscal year and related statements of income and retained earnings and changes in financial position of the budget Lessee for such current fiscal year, setting forth in each case in comparative form corresponding figures for the preceding fiscal year, all in reasonable detail and prepared in accordance with GAAP (subject to year-end audit adjustments as certified by the Lessee's public accountants, including their certificate and not including all footnotes thereto that may be required in accordance with GAAP)accompanying comments;
(c7) Upon request (but not more frequently than the delivery of the financial statements described in Sections 7.2(a) and 7.2(b))promptly upon their becoming available, a statement showing the number of Units one copy of each class financial statement, report, notice or proxy statement sent by Lessee to stockholders generally and series of membership interests (including Profits Interests) each regular or periodic report, registration statement or prospectus filed by Lessee with any securities exchange or the Securities and securities convertible into Exchange Commission or exercisable for Units outstanding at the end of the applicable periodany successor agency, the Junior Units issuable upon conversion or exercise and of any outstanding securities convertible or exercisable for Junior Units and the exchange ratio or exercise price applicable thereto, and the number of Units not yet order issued but reserved for issuance under the Equity Incentive Plan, if any, all in sufficient detail as to permit the Preferred Unit Holders to calculate their respective percentage equity ownership in the Company;
(d) As soon as available and by any Governmental Authority in any event within thirty (30) days after the end of each calendar month, proceeding in which Lessee is a statement of recognized revenue, bookings and retained earnings on a monthly basis, compared against the corresponding figures from such month from the preceding fiscal year and the budget for such current yearparty; and
(e) Not later than sixty (60) days after December 31 of each year8) from time to time, an annual budget and quarterly and monthly operating budgets for such fiscal year in a form and with such detail statistical information concerning the In-Use Aircraft as Lessor may be acceptable reasonably request to a majority of the Directorsenable Lessor to evaluate, calculate and/or report any Taxes.
Appears in 2 contracts
Samples: Aircraft Lease Agreement (Hawaiian Airlines Inc/Hi), Aircraft Lease Agreement (Hawaiian Airlines Inc/Hi)
Financial Information. The So long as an Investor is a holder of not less than 1,000,000 shares of Registrable Securities (as adjusted for any stock splits, consolidations and the like) the Company will furnish to each Major Holder the information set forth in this Section 7.2; provided, that Investor the Company shall not be required to furnish such information to a Major Holder if the Board determines in good faith that such Major Holder is a competitor to the Company (provided that in no event shall Kinnevik (or its Affiliates) or Oak (or its Affiliates) be deemed to be a competitor to the Company and that, as of the Effective Date, Walgreens (and its Affiliates) is deemed to not be a competitor to the Company):following reports:
(a) As soon as practicable after the end of each fiscal year of the Companyyear, and in any event within one hundred fifty twenty (150120) days thereafter, a copy of the annual audited financial statements for such fiscal year for the Company and its Subsidiaries, if any, including therein consolidated balance sheets of the Company and its Subsidiariessubsidiaries, if any, as of the end of such fiscal year year, and consolidated statements of income and members’ equity and of cash flows of the Company and its subsidiaries, if any, for such fiscal year, setting forth in each case in comparative form the corresponding figures for the preceding fiscal year, all prepared in accordance with generally accepted accounting principles consistently applied (“GAAP”)and setting forth in each case in comparative form the figures for the previous fiscal year, all such consolidated statements to be duly in reasonable detail and certified by such independent public accountants of recognized national standing approved selected by the Board to prepare such reportsCompany;
(b) As soon as available and practicable, but in any event within forty-five (45) days after the end of each of the first three (3) quarters of each fiscal year of the Company, an unaudited consolidated balance sheet sheets of the Company and its Subsidiariessubsidiaries, if any, as of the end of such quarter quarterly period, and the related unaudited consolidated statements of income and members’ equity and of cash flows of the Company and its subsidiaries, if any, for the period commencing at the end of the previous fiscal year such quarterly period, prepared in accordance with generally accepted accounting principles consistently applied and ending with the end of such quarter, setting forth in each case in comparative form the corresponding figures for the corresponding period quarterly periods of the preceding previous fiscal year and the budget for such current figures projected by the Company’s annual budget, subject to changes resulting from normal year-end audit adjustments, all in reasonable detail and prepared in accordance with GAAP (subject to year-end audit adjustments and certified by the principal financial or accounting officer of the Company, except such financial statements need not including all footnotes thereto that may be contain the notes required in accordance with GAAP)by generally accepted accounting principles;
(c) Upon request As soon as practicable after the end of each calendar month, and in any event within thirty (but not more frequently than the delivery 30) days thereafter, consolidated balance sheets of the financial Company and its subsidiaries, if any, as of the end of each calendar month setting forth in comparative form the results projected by the Company’s annual budget, and consolidated statements described in Sections 7.2(aof income and cash flow for such period and for the current fiscal year to date;
(d) and 7.2(b))As soon as practicable after the end of each fiscal quarter, a statement showing the number of Units shares of each class and series of membership interests (including Profits Interests) capital stock and securities convertible into or exercisable for Units shares of capital stock outstanding at the end of the applicable quarterly period, and the Junior Units number of common shares issuable upon conversion or exercise of any outstanding securities convertible or exercisable for Junior Units common shares and the exchange ratio or exercise price applicable thereto, and the number of Units not yet issued but reserved for issuance under the Equity Incentive Plan, if any, all in sufficient detail as to permit the Preferred Unit Holders Investor to calculate their respective its percentage equity ownership in the Company;
(d) As soon as available and in any event within thirty (30) days after the end of each calendar month, a statement of recognized revenue, bookings and retained earnings on a monthly basis, compared against the corresponding figures from such month from the preceding fiscal year and the budget for such current year; and
(e) Not later than sixty (60) days after December 31 of each year, an annual budget and quarterly and monthly operating budgets for such fiscal year in a form and with such detail as may be acceptable to a majority of the Directors.
Appears in 2 contracts
Samples: Investor Rights Agreement (Fate Therapeutics Inc), Investor Rights Agreement (Fate Therapeutics Inc)
Financial Information. The Company will furnish Borrower hereby covenants and agrees to each Major Holder deliver to Landlord the information set forth in this Section 7.2; provided, that the Company shall not be required to furnish such information to a Major Holder if the Board determines in good faith that such Major Holder is a competitor to the Company following: (provided that in no event shall Kinnevik (or its Affiliates1) or Oak (or its Affiliates) be deemed to be a competitor to the Company and that, as of the Effective Date, Walgreens (and its Affiliates) is deemed to not be a competitor to the Company):
(a) As soon as practicable within 90 days after the end of each fiscal year of the CompanyBorrower and LBO, consolidated statements of income, retained earnings and in any event within one hundred fifty (150) days thereafter, a copy cash flows of the annual audited financial statements Borrower and LBO for such fiscal year for and the Company and its Subsidiaries, if any, including therein related consolidated balance sheets of the Company and its Subsidiaries, if any, as of at the end of such fiscal year and statements of income and members’ equity and of cash flows of the Company for such fiscal year, setting forth in each case in comparative form the corresponding consolidated figures for the preceding fiscal year, all prepared and accompanied by an opinion thereon of independent certified public accountants of recognized national standing, which opinion shall state that such consolidated financial statements fairly present the consolidated financial condition and results of operations of Borrower and LBO as at the end of, and for, such fiscal year in accordance with generally accepted accounting principles consistently applied principles; (“GAAP”), all such consolidated statements to be duly certified by such independent public accountants of recognized national standing approved by the Board to prepare such reports;
(b2) As soon as available and in any event within forty-five (45) 45 days after the end of each of the first three quarters interim quarterly fiscal period of each fiscal year of Borrower and LBO, unaudited consolidated statements of income, retained earnings and cash flows of Borrower and LBO for such period and for the Company, an unaudited balance sheet period from the beginning of the Company and its Subsidiaries, if any, as of respective fiscal year to the end of such quarter period, and the related consolidated balance sheets as at the end of such period, setting forth in each case in comparative form the corresponding consolidated figures for the corresponding periods in the preceding fiscal year (except that, in the case of balance sheets, such comparison shall be to the last day of the prior fiscal year), accompanied by a certificate of a financial officer of Borrower and LBO, as applicable, which certificate shall state that such consolidated financial statements fairly present the consolidated financial condition and results of operations of the respective Borrower and LBO in accordance with generally accepted accounting principles, consistently applied, as at the end of, and for, such period; (3) within 45 days after the end of each interim quarterly fiscal period of each fiscal year of Borrower and LBO, unaudited statements of income for such period and members’ equity and of cash flows of the Company for the period commencing at from the end beginning of the previous respective fiscal year and ending with to the end of such quarter, setting forth period in each case in comparative form the corresponding figures for the corresponding period of periods in the preceding fiscal year and the budget for such current year, all in reasonable detail and prepared in accordance with GAAP ; (subject to year-end audit adjustments and not including all footnotes thereto that may be required in accordance with GAAP);
(c4) Upon request (but not more frequently than the delivery of the financial statements described in Sections 7.2(a) and 7.2(b)), a statement showing the number of Units of each class and series of membership interests (including Profits Interests) and securities convertible into or exercisable for Units outstanding at the end of the applicable period, the Junior Units issuable upon conversion or exercise of any outstanding securities convertible or exercisable for Junior Units and the exchange ratio or exercise price applicable thereto, and the number of Units not yet issued but reserved for issuance under the Equity Incentive Plan, if any, all in sufficient detail as to permit the Preferred Unit Holders to calculate their respective percentage equity ownership in the Company;
(d) As soon as available and in any event within thirty (30) 30 days after the end of each calendar month, a an income and expense statement detailing all sources of recognized revenue, bookings including but not limited to ticket sales, concession sales and retained earnings on other revenues, and all expenses relating to the Leased Premises, accompanied by a monthly basiscertificate of a financial officer of Borrower and LBO stating that such items are true, compared against correct, accurate and completely and fairly present the corresponding figures from such month from the preceding fiscal year financial condition and the budget for such current year; and
(e) Not later than sixty (60) days after December 31 of each year, an annual budget and quarterly and monthly operating budgets for such fiscal year in a form and with such detail as may be acceptable to a majority results of the Directorsoperations of Borrower and LBO.
Appears in 2 contracts
Samples: Loan Agreement (Peak Resorts Inc), Loan Agreement (Peak Resorts Inc)
Financial Information. The As long as each Investor holds --------------------- beneficially (within the meaning of Rule 13d-3 under the Securities Exchange Act of 1934 (the "Exchange Act")) not less than 250,000 shares of Common Stock (including Common Stock issuable upon conversion of shares of Preferred Stock), the Company will furnish to each Major Holder provide such Investor the information set forth reports specified in this Section 7.2; provided, that the Company shall not be required to furnish such information to a Major Holder if the Board determines in good faith that such Major Holder is a competitor to the Company (provided that in no event shall Kinnevik (or its Affiliates) or Oak (or its Affiliates) be deemed to be a competitor to the Company and that, as of the Effective Date, Walgreens (and its Affiliates) is deemed to not be a competitor to the Company):Section:
(a) As soon as practicable after the end of each fiscal year of the Companyyear, and in any event within one hundred fifty ninety (15090) days thereafter, a copy of the annual audited financial statements for such fiscal year for the Company and its Subsidiaries, if any, including therein balance sheets of the Company and its Subsidiaries, if anyCompany, as of the end of such fiscal year year, and statements of income and members’ operations, stockholders' equity and of cash flows of the Company Company, for such fiscal year, prepared in accordance with generally accepted accounting principles and setting forth in each case in comparative form the corresponding figures for the preceding previous fiscal year, all in reasonable detail and audited (without qualification) by independent auditors of national standing selected by the Company, which opinion shall state that such financial statements fairly present the financial position of the Company on a consolidated basis and have been prepared in accordance with generally accepted accounting principles consistently applied (“GAAP”), all such consolidated statements to be duly certified by such independent public accountants of recognized national standing approved by the Board to prepare such reports;procedures.
(b) As soon as available and in any event within forty-five (45) days practicable after the end of each of the first three quarters of each fiscal year of the Company, an unaudited balance sheet of the Company and its Subsidiaries, if any, as of the end of such quarter and the related unaudited statements of income and members’ equity and of cash flows of the Company for the period commencing at the end of the previous fiscal year and ending with the end of such quarter, setting forth in each case in comparative form the corresponding figures for the corresponding period of the preceding fiscal year and the budget for such current year, all in reasonable detail and prepared in accordance with GAAP (subject to year-end audit adjustments and not including all footnotes thereto that may be required in accordance with GAAP);
(c) Upon request (but not more frequently than the delivery of the financial statements described in Sections 7.2(a) and 7.2(b)), a statement showing the number of Units of each class and series of membership interests (including Profits Interests) and securities convertible into or exercisable for Units outstanding at the end of the applicable period, the Junior Units issuable upon conversion or exercise of any outstanding securities convertible or exercisable for Junior Units and the exchange ratio or exercise price applicable thereto, and the number of Units not yet issued but reserved for issuance under the Equity Incentive Plan, if any, all in sufficient detail as to permit the Preferred Unit Holders to calculate their respective percentage equity ownership in the Company;
(d) As soon as available month and in any event within thirty (30) days after thereafter, a balance sheet of the Company as of the end of each calendar such month, a statement and statements of recognized revenueoperations and cash flows of the Company and its subsidiaries for such period and for the current fiscal year to date, bookings and retained earnings setting forth in comparative form the budgeted figures for such period and for the current fiscal year then reported, prepared in accordance with generally accepted accounting principles (other than for accompanying notes), subject to changes resulting from year-end audit adjustments, all in reasonable detail.
(c) A copy of the annual operating plan of the Company for the next fiscal year and an annual budget of the Company for the next fiscal year containing profit and loss projections, cash flow projections and capital expenditures, all on a monthly basis, compared against as soon as each is available but in any event prior to the corresponding figures from such month from end of the preceding then current fiscal year and the budget for such current year; and.
(ed) Not later than sixty (60) days after December 31 of With reasonable promptness, the Company shall furnish each year, an annual budget and quarterly and monthly operating budgets for such fiscal year in a form and Investor with such detail other data and information as from time to time may be acceptable to a majority of the Directorsreasonably requested.
Appears in 2 contracts
Samples: Stockholder Rights Agreement (Kyphon Inc), Stockholder Rights Agreement (Kyphon Inc)
Financial Information. (a) The Company will furnish shall mail the following reports to each Major Holder the information set forth in this Section 7.2; provided, that the Company shall not be required to furnish such information to a Major Holder if the Board determines in good faith that such Major Holder is a competitor to the Company (provided that in no event shall Kinnevik (or its Affiliates) or Oak (or its Affiliates) be deemed to be a competitor to the Company and that, as of the Effective Date, Walgreens (and its Affiliates) is deemed to not be a competitor to the Company):Holder:
(ai) As soon as practicable after the end of each fiscal year of the Companyyear, and in any event within one hundred fifty (150) 90 days thereafter, a copy of the annual audited financial statements audit report (prepared in accordance with generally accepted accounting principles) for such fiscal year for the Company and its Subsidiaries, if anyany consolidated subsidiary, including therein Consolidated balance sheets of the Company and its Subsidiaries, if any, any such subsidiary as of the end of such fiscal year and year, Consolidated statements of income and members’ stockholders equity and statements of cash flows flow of the Company and any such subsidiary for such fiscal year, setting forth in each case in comparative form the corresponding figures for the preceding fiscal year, all duly certified by an independent public accounting firm selected by the Company's Board of Directors;
(ii) As soon as practicable after the end of the first, second, third and fourth quarterly accounting periods in each fiscal year of the Company, and in any event within 45 days thereafter, a Consolidated budget model balance sheet of the Company as of the end of each such quarterly period, and Consolidated budget model statements of income and stockholders equity and Consolidated budget model statements of cash flows of the Company and any subsidiary for such period and for the current fiscal year to date, prepared in accordance with generally accepted accounting principles (other than for accompanying notes), subject to changes resulting from year-end audit adjustments, and signed by the principal financial or accounting officer of the Company;
(iii) As soon as practicable after the end of each month, and in any event within 30 days thereafter, Consolidated budget model balance sheets of the Company and any subsidiary as of the end of such month, and Consolidated budget model statements of income and stockholders' equity for each month and for the current fiscal year to date, and comparing such results to the then current business plan, prepared in accordance with generally accepted accounting principles (other than for accompanying notes), subject to changes resulting from year-end audit adjustments and signed by the principal financial or accounting officer of the Company;
(iv) As soon as available (but in any event at least within 30 days before the commencement of its fiscal year), an annual budget and business plan prepared on a monthly basis for each fiscal year, together with any modifications thereto adopted through such fiscal year;
(v) With respect to the financial statements called for in subsections (ii) and (iii) of this Section 18.1 (a), an instrument executed by the Chief Financial Officer or President of the Company and certifying that such financial statements were prepared in accordance with generally accepted accounting principles consistently applied with prior practice for earlier periods (“GAAP”), all such consolidated statements to with the exception of footnotes that may be duly certified required by such independent public accountants of recognized national standing approved by generally accepted accounting principles) and fairly present the Board to prepare such reports;
(b) As soon as available and in any event within forty-five (45) days after the end of each of the first three quarters of each fiscal year of the Company, an unaudited balance sheet financial condition of the Company and its Subsidiariesresults of operation for the period specified, if anysubject to period-end adjustment; and
(vi) Such other information relating to the financial condition, as of the end of such quarter and the related unaudited statements of income and members’ equity and of cash flows business, prospects or corporate affairs of the Company for as the period commencing Major Holder may from time to time reasonably request.
(b) The Company shall also afford each Major Holder, at the end principal offices of the previous fiscal year Company, reasonable access to material documents of the Company and ending with rights to examine without undue disruption the end facilities and offices of the Company, upon at least five (5) days notice in advance of such visit to the Company from such Major Holder and upon receipt of a request from such Major Holder specifying which documents, offices and facilities such Major Holder wishes to inspect five (5) days in advance of such visit; but, in any event, not more than once every fiscal quarter, setting forth in each case in comparative form the corresponding figures for the corresponding period of the preceding fiscal year and the budget for such current year, all in reasonable detail and prepared in accordance with GAAP (subject to year-end audit adjustments and not including all footnotes thereto that may be required in accordance with GAAP);.
(c) Upon request (but not more frequently than The Company shall afford each Major Holder, reasonable Board of Directors' visitation rights. Such visitation rights shall include the delivery right to designate one representative of the financial statements described in Sections 7.2(a) and 7.2(b)), Major Holders (selected by the affirmative vote of a statement showing the number of Units of each class and series of membership interests (including Profits Interests) and securities convertible into or exercisable for Units outstanding at the end majority of the applicable periodMajor Holders) to (i) receive reasonable notice in advance of all Board of Directors' meetings, (ii) the Junior Units issuable upon conversion or exercise right to receive, concurrently with receipt by members of any outstanding securities convertible or exercisable for Junior Units and the exchange ratio or exercise price applicable thereto, and the number Board of Units not yet issued but reserved for issuance under the Equity Incentive Plan, if anyDirectors, all in sufficient detail as materials, reports and other written communications received by members of the Board of Directors and (iii) the right to permit the Preferred Unit Holders to calculate their respective percentage equity ownership in the Company;attend all Board of Directors meetings.
(d) As soon The covenants set forth in this Section 18.1 shall terminate and be of no further force or effect at such time as available and in any event within thirty (30the Company is required to file reports pursuant to Section 13 or 15(d) days after of the end of each calendar month, a statement of recognized revenue, bookings and retained earnings on a monthly basis, compared against the corresponding figures from such month from the preceding fiscal year and the budget for such current year; andExchange Act.
(e) Not later than sixty (60) days after December 31 Notwithstanding any other provisions of this Section 18.1 or Section 13(d), the Company may require as a condition precedent to any Major Holder's rights under this Section 18.1 or Section 13(d), that each year, an annual budget person proposing to attend any meeting of the Board of Directors and quarterly each person to have access to any of the information provided by the Company to its Board of Directors shall agree to hold in confidence and monthly operating budgets for such fiscal year trust and to act in a form and fiduciary manner with respect to all information so received during such detail as may be acceptable meetings or otherwise; and, provided further, that the Company reserves the right not to provide such information to a majority Major Holder or its representative (or not to provide to a Major Holder such portions of the Directorsinformation which is sensitive vis & vis such Major Holder) and to exclude such Major Holder or its representative from any meeting or portion thereof to the extent necessary in order to prevent the breach of attorney client privilege or if such Major Holder or its representative is a competitor of the Company (including any of its direct or indirect subsidiaries).
Appears in 2 contracts
Samples: Rights Agreement (Pegasus Systems Inc), Rights Agreement (Pegasus Systems Inc)
Financial Information. The Company will furnish to each XX Xxxxxx, Major Holder or transferee thereof under Subsection 2.14 the information set forth in this Section 7.2; provided, that the Company shall not be required to furnish such information to a Major Holder if the Board determines in good faith that such Major Holder is a competitor to the Company (provided that in no event shall Kinnevik (or its Affiliates) or Oak (or its Affiliates) be deemed to be a competitor to the Company and that, as of the Effective Date, Walgreens (and its Affiliates) is deemed to not be a competitor to the Company):following reports:
(a) As soon as practicable after the end of each fiscal year of the Companyyear, and in any event within one two hundred fifty seventy (150270) days thereafter, a copy of the annual audited financial statements for such fiscal year for the Company and its Subsidiaries, if any, including therein consolidated balance sheets of the Company and its Subsidiariessubsidiaries, if any, as of the end of such fiscal year year, and consolidated statements of income and members’ equity and of cash flows of the Company and its subsidiaries, if any, for such fiscal year, prepared in accordance with generally accepted accounting principles applied on a consistent basis and setting forth in each case in comparative form the corresponding figures for the preceding previous fiscal year, all prepared in accordance with generally accepted accounting principles consistently applied (“GAAP”), all such consolidated statements to be duly certified reasonable detail and audited by such independent public accountants of recognized national standing selected by the Company and approved by the Board to prepare such reportsBoard;
(b) As soon as available practicable after the end of each quarter, and in any event within forty-five (45) days after thereafter (other than the end of each of the first three quarters last calendar month of each fiscal year of the Companyyear), an unaudited consolidated balance sheet sheets of the Company and its Subsidiariessubsidiaries, if any, as of the end of such quarter the quarter, and the related unaudited consolidated statements of income and members’ equity and of cash flows of the Company and its subsidiaries, if any, for the period commencing at the end of the previous fiscal year and ending with the end of such quarter, prepared in accordance with generally accepted accounting principles applied on a consistent basis and setting forth in each case in comparative form the corresponding figures for the corresponding period of the preceding fiscal same quarter one year earlier; provided that footnotes and the budget for such current yearschedule disclosure appearing in audited financial statements shall not be required, all in reasonable detail and prepared in accordance with GAAP (subject to year-end audit adjustments and not including all footnotes thereto that may be required in accordance with GAAP)signed by the principal financial or accounting officer of the Company;
(c) Upon request As soon as practicable after the end of each month, and in any event within thirty (but not more frequently 30) days thereafter (other than the delivery last calendar month of each fiscal year), unaudited consolidated balance sheets of the financial statements described in Sections 7.2(a) Company and 7.2(b))its subsidiaries, a statement showing the number if any, as of Units of each class and series of membership interests (including Profits Interests) and securities convertible into or exercisable for Units outstanding at the end of the applicable period, the Junior Units issuable upon conversion or exercise of any outstanding securities convertible or exercisable for Junior Units and the exchange ratio or exercise price applicable theretomonth, and unaudited consolidated statements of income and cash flows of the number of Units not yet issued but reserved for issuance under the Equity Incentive PlanCompany and its subsidiaries, if any, for such month, prepared in accordance with generally accepted accounting principles applied on a consistent basis and setting forth in each case in comparative form the figures for the same month one year earlier; provided that footnotes and schedule disclosure appearing in audited financial statements shall not be required, all in sufficient reasonable detail as to permit and signed by the Preferred Unit Holders to calculate their respective percentage equity ownership in principal financial or accounting officer of the Company;
(d) As soon as available and practicable, but in any event within thirty (30) days after prior to the end of each calendar monthfiscal year, a statement of recognized revenuebudget for the next fiscal year, bookings and retained earnings prepared on a monthly basis, compared against the corresponding figures from such month from the preceding fiscal year and the budget for such current year; and
(e) Not later than sixty (60) days after December 31 of each year, an annual budget and quarterly and monthly operating as soon as prepared, any other updated or revised budgets for such fiscal year prepared by the Company and approved by the Board; and The Company shall respond with reasonable promptness and accuracy, and shall use its commercially reasonable efforts to cause its transfer agent to respond promptly, to written requests made by or on behalf of any XX Xxxxxx, Major Holder or transferee thereof under Subsection 2.14 for information that is reasonably related to (i) accounting and securities law matters required in connection with such Investor’s year-end audit or (ii) the number of shares of the Company’s securities held by such Investor so as to permit such Investor to calculate its percentage equity ownership in the Company; provided, however, that the Company shall not be obligated to provide any information that could reasonably result in a form violation of applicable law or conflict with the Company’s xxxxxxx xxxxxxx policies or confidentiality obligations; and provided further that the covenants set forth in this paragraph shall, with respect to each Investor, terminate and be of no further force or effect once such detail Investor no longer hold any securities of the Company that are restricted under the Securities Act. Additionally, the Company shall furnish to a representative of Fidelity Research and Management Company or any transferee thereof under Section 2.14, as soon as practicable after delivery to the Board, copies of all approved minutes and approved consents of the Board and committees of the Board that the Company provides to its directors, except that such representative may be acceptable excluded from access to any material or portion thereof if (i) such exclusion is reasonably necessary to preserve the attorney-client privilege or to protect the Company’s highly confidential proprietary information, or (ii) providing such information could reasonably result in a majority violation of applicable law or conflict with the Company’s xxxxxxx xxxxxxx policy, code of conduct or a confidentiality obligation of the DirectorsCompany.
Appears in 2 contracts
Samples: Investors’ Rights Agreement, Investors’ Rights Agreement (Syndax Pharmaceuticals Inc)
Financial Information. The Until the first to occur of (i) the date on --------------------- which the Company is required to file a report pursuant to Section 13(a) of the Securities Exchange Act of 1934 (the "Exchange Act"), by reason of the Company having registered any of its securities pursuant to Section 12(g) of the Exchange Act or (ii) quotations for the Common Stock of the Company are reported by the automated quotations system operated by the National Association of Securities Dealers, Inc. or by an equivalent quotations system or (iii) shares of the Common Stock of the Company are listed on a national securities exchange registered under Section 6 of the Exchange Act, the Company will furnish to each Major Holder the information set forth in this Section 7.2; provided, that the Company shall not be required to furnish such information to a Major Holder if the Board determines in good faith that such Major Holder is a competitor to the Company (provided that in no event shall Kinnevik (or its Affiliates) or Oak (or its Affiliates) be deemed to be a competitor to the Company and that, as of the Effective Date, Walgreens (and its Affiliates) is deemed to not be a competitor to the Company):Purchaser:
(a) As so long as such Purchaser or its affiliates own any of the Series A Shares or Common Stock issued upon conversion of the Series A Shares, as soon as practicable after the end of each fiscal year of the Companyyear, and in any event within one hundred fifty (150) 90 days thereafter, a copy of the annual audited financial statements for such fiscal year for the Company and its Subsidiaries, if any, including therein consolidated balance sheets of the Company and its Subsidiariessubsidiaries, if any, as at the end of such fiscal year, and consolidated statements of operations and consolidated statements of cash flow of the Company and its subsidiaries, if any, for such year, prepared in accordance with generally accepted accounting principles, all in reasonable detail and certified by independent public accountants of recognized national standing selected by the Company; and
(b) so long as the Purchaser continues to hold at least 100,000 shares of the Company's Series A Preferred Stock (as adjusted for stock splits, combinations, dividends, distributions or recapitalizations), as soon as practicable after the end of each month and in any event within 15 days thereafter, consolidated balance sheets of the Company and its subsidiaries, if any, as of the end of such fiscal year month and consolidated statements of income and members’ equity and of cash flows of the Company flow statements, for such fiscal year, setting forth in each case in comparative form the corresponding figures month and for the preceding current fiscal yearyear to date, all prepared in accordance with generally accepted accounting principles consistently applied (“GAAP”except for required footnotes), all such consolidated statements to be duly certified by such independent public accountants of recognized national standing approved by the Board to prepare such reports;
(b) As soon as available and in any event within forty-five (45) days after the end of each of the first three quarters of each fiscal year of the Company, an unaudited balance sheet of the Company and its Subsidiaries, if any, as of the end of such quarter and the related unaudited statements of income and members’ equity and of cash flows of the Company for the period commencing at the end of the previous fiscal year and ending with the end of such quarter, setting forth in each case in comparative form the corresponding figures for the corresponding period of the preceding fiscal year and the budget for such current year, all in reasonable detail and prepared in accordance with GAAP (signed, subject to changes resulting from year-end audit adjustments and not including all footnotes thereto that may be required in accordance with GAAP);adjustments, by the principal financial officer or chief executive officer of the Company; and
(c) Upon request (but not more frequently than at such time as the delivery Purchaser or its affiliates are no longer entitled to receive information under Section 6.1(b) above and so long as such Purchaser or its affiliates own any of the financial statements described in Sections 7.2(a) and 7.2(b))Series A Shares or Common Stock issued upon conversion of the Series A Shares, a statement showing the number of Units of each class and series of membership interests (including Profits Interests) and securities convertible into or exercisable for Units outstanding at as soon as practicable after the end of the applicable periodeach fiscal quarter, the Junior Units issuable upon conversion or exercise of any outstanding securities convertible or exercisable for Junior Units and the exchange ratio or exercise price applicable thereto, and the number of Units not yet issued but reserved for issuance under the Equity Incentive Plan, if any, all in sufficient detail as to permit the Preferred Unit Holders to calculate their respective percentage equity ownership in the Company;
(d) As soon as available and in any event within thirty (30) 45 days after thereafter, consolidated balance sheets of the Company and its subsidiaries, if any, as at the end of each calendar monthsuch fiscal quarter, a statement and consolidated statements of recognized revenueoperations and consolidated statements of cash flow of the Company and its subsidiaries, bookings and retained earnings on a monthly basisif any, compared against the corresponding figures from such month from the preceding fiscal year and the budget for such current quarter, prepared in accordance with generally accepted accounting principles (except for required footnotes), all in reasonable detail and signed, subject to changes resulting from year-end audit adjustments, by the principal financial officer or chief executive officer of the Company; and
(ed) Not so long as the Purchaser continues to hold at least 100,000 shares of the Company's Series A Preferred Stock (as adjusted for stock splits, combinations, dividends, distributions or recapitalizations), as soon as practicable and in any event no later than sixty (60) days after December 31 before the end of each the fiscal year, an annual budget (consisting of projected income statements and quarterly and projected cash flow statements reported on a monthly operating budgets basis) for such the subsequent fiscal year in a form and with such detail as may be acceptable to a majority of the Directorsyear.
Appears in 2 contracts
Samples: Series a Preferred Stock Purchase Agreement (Esps Inc), Series a Preferred Stock Purchase Agreement (Esps Inc)
Financial Information. The Company will furnish to provide each Major Holder Investor the information set forth in this Section 7.2; provided, that following reports for so long as the Company shall not be required to furnish such information to a Major Holder if the Board determines in good faith that such Major Holder Investor is a competitor to the Company holder of a minimum of ten thousand (provided that in no event shall Kinnevik 10,000) shares of Registrable Securities (or its Affiliates) or Oak (or its Affiliates) be deemed to be a competitor to the Company as adjusted for stock splits and that, as of the Effective Date, Walgreens (and its Affiliates) is deemed to not be a competitor to the Companycombinations):
(a) As soon as practicable after the end of each fiscal year of the Companyyear, and in any event within one hundred fifty twenty (150120) days thereafter, a copy of the annual audited financial statements for such fiscal year for the Company and its Subsidiaries, if any, including therein consolidated balance sheets of the Company and its Subsidiariessubsidiaries, if any, as of the end of such fiscal year year, and consolidated statements of income and members’ income, stockholders' equity and of cash flows of the Company and its subsidiaries, if any, for such fiscal year, prepared in accordance with generally accepted accounting principles and setting forth in each case in comparative form the corresponding figures for the preceding previous fiscal year, and all prepared in accordance with generally accepted accounting principles consistently applied (“GAAP”), all such consolidated statements to be duly certified reasonable detail and audited by such independent public accountants of recognized national standing approved selected by the Board to prepare such reports;Company.
(b) As soon as available and in any event within forty-five (45) days practicable after the end of each of the first three quarters of each month and fiscal year of the Company, an unaudited balance sheet of the Company and its Subsidiaries, if any, as of the end of such quarter and the related unaudited statements of income and members’ equity and of cash flows of the Company for the period commencing at the end of the previous fiscal year and ending with the end of such quarter, setting forth in each case in comparative form the corresponding figures for the corresponding period of the preceding fiscal year and the budget for such current year, all in reasonable detail and prepared in accordance with GAAP (subject to year-end audit adjustments and not including all footnotes thereto that may be required in accordance with GAAP);
(c) Upon request (but not more frequently than the delivery of the financial statements described in Sections 7.2(a) and 7.2(b)), a statement showing the number of Units of each class and series of membership interests (including Profits Interests) and securities convertible into or exercisable for Units outstanding at the end of the applicable period, the Junior Units issuable upon conversion or exercise of any outstanding securities convertible or exercisable for Junior Units and the exchange ratio or exercise price applicable thereto, and the number of Units not yet issued but reserved for issuance under the Equity Incentive Plan, if any, all in sufficient detail as to permit the Preferred Unit Holders to calculate their respective percentage equity ownership in the Company;
(d) As soon as available and in any event within thirty (30) days after and forty-five (45) days, respectively, thereafter, a consolidated balance sheet of the Company and its subsidiaries, if any, as of the end of each calendar monthsuch period, consolidated statements of income, consolidated statements of changes in financial condition, a consolidated statement of cash flow of the Company and its subsidiaries and a statement of recognized revenuestockholders' equity for such period and for the current fiscal year to date, bookings and retained earnings setting forth in each case in comparative form the figures for corresponding periods in the previous fiscal year, and setting forth in comparative form the budgeted figures, prepared in accordance with generally accepted accounting principles (other than for accompanying notes), subject to changes resulting from year-end audit adjustments, all in reasonable detail and signed by the principal financial or accounting officer of the Company.
(c) As soon as practicable after its adoption by the Board of Directors of the Company (the "BOARD OF DIRECTORS"), a copy of the annual operating plan of the Company for the next fiscal year and an annual budget for the next fiscal year of the Company containing profit and loss projections, cash flow projections and capital expenditures, all on a monthly basis, compared against the corresponding figures from such month from the preceding fiscal year and the budget for such current year; and
(e) Not later than sixty (60) days after December 31 of each year, an annual budget and quarterly and monthly operating budgets for such fiscal year in a form and with such detail as may be acceptable to a majority of the Directors.
Appears in 2 contracts
Samples: Investor Rights Agreement (Dna Sciences Inc), Agreement and Plan of Merger and Reorganization (Axys Pharmecueticals Inc)
Financial Information. The Company Borrower will furnish to each Major Holder the information set forth in this Section 7.2; provided, that the Company shall not be required to furnish such information to a Major Holder if the Board determines in good faith that such Major Holder is a competitor to the Company (provided that in no event shall Kinnevik (or its Affiliates) or Oak (or its Affiliates) be deemed to be a competitor to the Company and that, as Agent on behalf of the Effective Date, Walgreens (and its Affiliates) is deemed to not be a competitor to Lenders the Company):following information within the following time periods:
(a) As soon as practicable for each fiscal year, commencing with the fiscal year ended December 31, 2018, within ninety (90) days (or one hundred twenty (120) days for the first fiscal year ending after the end of each fiscal year of Closing Date) after the Company, and in any event within one hundred fifty (150) days thereafter, a copy of the annual audited financial statements for such fiscal year for the Company and its Subsidiaries, if any, including therein balance sheets of the Company and its Subsidiaries, if any, as of the end last day of such fiscal year year, the audited consolidated balance sheets and statements of income and members’ equity retained earnings and of changes in cash flows flow of the Company Holdings and its consolidated Subsidiaries, for such fiscal year, each setting forth in each case in comparative form the corresponding figures for the preceding fiscal year, all prepared in accordance with generally accepted accounting principles consistently applied (“GAAP”), all such consolidated statements to be duly certified and accompanied by such independent public accountants a report and unqualified opinion of recognized national standing an Independent Accountant selected by Holdings and approved by the Board Agent (which shall not be limited as to prepare such reportsthe scope of the audit or qualified as to the status of Holdings and its consolidated Subsidiaries as a going concern);
(b) As soon as available and in any event within forty-five (45) days (or sixty (60) days for the fiscal quarter ending March 31, 2019) after the end of each fiscal quarter of Holdings other than the first three quarters final fiscal quarter of each fiscal year year, unaudited consolidated financial statements of the Company, an unaudited balance sheet of the Company Holdings and its Subsidiaries, if any, consolidated Subsidiaries as of the end of such quarter period and the related unaudited statements of income for such period then ended and members’ equity and of cash flows of the Company for the period commencing at from the end beginning of the previous current fiscal year and ending with to the end of such quarterperiod, setting forth in each case in comparative form the corresponding figures for the corresponding comparable period of in the preceding fiscal year and the budget for such current year, all in reasonable detail and prepared in accordance with GAAP (subject to year-end audit adjustments except that such quarterly statements need not include footnotes) and not including all footnotes thereto that may be required in accordance with GAAP)certified by an Executive Officer;
(c) Upon request within thirty (but 30) days (or forty-five (45) days for the first three months ending after the Closing Date) after the end of each fiscal month of Holdings, unaudited consolidated financial statements of Holdings and its consolidated Subsidiaries as of the end of such period and for such period then ended and for the period from the beginning of the current fiscal year to the end of such period, setting forth in comparative form the corresponding figures for the comparable period in the preceding fiscal year, prepared in accordance with GAAP (except that such monthly statements need not more frequently include footnotes) and certified by an Executive Officer;
(d) at the time of delivery of each quarterly and annual statement, a Compliance Certificate executed by an Executive Officer (i) stating that such officer has caused this Credit Agreement to be reviewed and has no knowledge of any Default by Holdings or any other Credit Party under this Credit Agreement or any other Credit Document, during, or at the end of, as applicable, such quarter, or year, or, if such officer has such knowledge, specifying each Default and the nature thereof, and (ii) showing compliance by the Credit Parties as of the date of such statement with the covenant set forth in Article VII, and calculations (which shall include detailed descriptions of any adjustments made to Consolidated EBITDA in form and substance reasonably satisfactory to Agent) in such form and detail as the Borrower and Agent may agree for such covenants shall be included;
(e) promptly upon receipt thereof, copies of all management letters which are submitted to Holdings by its Independent Accountant in connection with any annual or interim audit of the books of Holdings or its consolidated Subsidiaries made by such accountants;
(f) as soon as practicable but, in any event, within ten (10) Business Days after the issuance thereof, to the extent not electronically filed and publicly available, copies of such other financial statements and reports as Holdings shall send to its limited partnership unit holders as such; provided that it is acknowledged and agreed that nothing in this Credit Agreement shall require Holdings or any of its affiliates to provide Forms K-1 or other similar limited partner tax information or any confidential or legally protected personal information relating to its limited partners to the Agent or the Lenders or any other Person;
(g) promptly and in any event within five (5) Business Days after becoming aware of the occurrence of a Default or Event of Default, a certificate of an Executive Officer specifying the nature thereof and the Credit Parties’ proposed response thereto, each in reasonable detail;
(h) no later than five (5) days after the delivery of the financial statements described in Sections 7.2(arequired by Section 6.1(a) and 7.2(b)Section 6.1(b), a statement showing narrative report and management’s discussion and analysis of the number financial condition and results of Units operations for Holdings for the most recently ended fiscal year or the most recently ended fiscal quarter and for the period from the beginning of each class and series of membership interests (including Profits Interests) and securities convertible into or exercisable for Units outstanding at the then current fiscal year to the end of such fiscal quarter, as applicable, as compared to the applicable period, the Junior Units issuable upon conversion or exercise portion of any outstanding securities convertible projections covering such periods and to the comparable periods of the previous fiscal year, which such report shall include, among any other information or exercisable for Junior Units explanation reasonably requested by the Required Lenders, an explanation of any revenues and Consolidated EBITDA, that would assist the exchange ratio or exercise price applicable thereto, and Lender to better understand the number of Units not yet issued but reserved for issuance under the Equity Incentive Plan, if any, all in sufficient detail as to permit the Preferred Unit Holders to calculate their respective percentage equity ownership in the Companyresults being reported;
(di) As soon as available promptly and in any event within thirty five (305) days Business Days after delivery thereof, (i) any notice or report delivered to the end agent or the lenders under the OpCo Credit Agreement and (ii) any periodic reports delivered to the direct or indirect equityholders of each calendar monthHoldings in respect of the OpCo Obligors;
(j) promptly upon an Executive Officer of the Borrower obtaining actual knowledge thereof, notice of a statement prospective “Default” or “Event of recognized revenueDefault” (as defined in the OpCo Credit Agreement or the Senior Notes, bookings and retained earnings on as applicable) under the OpCo Credit Agreement or the Senior Notes which, in the Borrower’s sole judgment, would reasonably be expected to result in a monthly basisbankruptcy, compared against the corresponding figures from such month from the preceding fiscal year and the budget for such current yearinsolvency, arrangement, reorganization, receivership or similar case or proceeding with respect to it under any federal or state law; and
(ek) Not later than sixty (60) days after December 31 of each yearwith reasonable promptness, an annual budget and quarterly and monthly operating budgets for such fiscal year in a form and with such detail other data as the Agent may be acceptable to a majority of the Directorsreasonably request.
Appears in 2 contracts
Samples: Senior Secured Credit Facility (TransMontaigne Partners L.P.), Senior Secured Credit Facility (TLP Equity Holdings, LLC)
Financial Information. The Company will furnish (a) At Seller’s sole cost and expense, Seller shall (i) deliver to each Major Holder Buyer by April 30, 2014 audited combined balance sheets, income statements and statements of cash flows and shareowner’s equity (deficit) of the information set forth in this Section 7.2Transferred Business on an historical basis taking into account adjustments required by Regulation S-X and prepared on a “predecessor” basis (together with an unqualified report of Seller’s independent accountants thereon; provided, that the Company shall inclusion of explanatory language in the report, without more, will not be required to furnish make such information to a Major Holder if the Board determines in good faith that such Major Holder is a competitor to the Company (provided that in no event shall Kinnevik (or its Affiliatesreport qualified) or Oak (or its Affiliates) be deemed to be a competitor to the Company and that, as of and for the Effective Dateyears ending December 31, Walgreens 2011, December 31, 2012 and December 31, 2013 (and its Affiliatessuch audited combined financial statements, the “Audited Financial Statements”), (ii) is deemed unless the Closing has occurred prior to not be a competitor May 6, 2014, deliver to the Company):
(a) As Buyer as soon as reasonably practicable after the end of each fiscal year of the Company, and but in any event within one hundred fifty (150) days thereafterno later than May 30, a copy of the annual audited financial 2014 unaudited combined balance sheets, income statements for such fiscal year for the Company and its Subsidiaries, if any, including therein balance sheets of the Company and its Subsidiaries, if any, as of the end of such fiscal year and statements of cash flows and shareowner’s equity (deficit) of the Transferred Business on an historical basis taking into account adjustments required by Regulation S-X and prepared on a “predecessor” basis (reviewed by Seller’s independent accountants in accordance with SAS 100) as of and for the three months ended March 31, 2014 and the three months ended Mxxxx 00, 0000, (xxx) unless the Closing has occurred prior to August 5, 2014, deliver to Buyer as soon as reasonably practicable but in any event no later than August 9, 2014 the unaudited combined balance sheets, income statements and members’ equity and statements of cash flows and shareowner’s equity (deficit) of the Company for such fiscal year, setting forth in each case in comparative form the corresponding figures for the preceding fiscal year, all Transferred Business on an historical basis taking into account adjustments required by Regulation S-X and prepared on a “predecessor” basis (reviewed by Seller’s independent accountants in accordance with generally accepted accounting principles consistently applied SAS 100) as of and for the three and six months ended June 30, 2014 and the three and six months ended June 30, 2013, and (iv) unless the Closing has occurred prior to November 4, 2014, deliver to Buyer as soon as reasonably practicable but in any event no later than November 9, 2014 the unaudited combined balance sheets, income statements and statements of cash flows and shareowner’s equity (deficit) of the Transferred Business on an historical basis taking into account adjustments required by Regulation S-X and prepared on a “GAAPpredecessor” basis (reviewed by Seller’s independent accountants in accordance with SAS 100) as of and for the three and nine months ended September 30, 2014 and the three and nine months ended September 30, 2013 (together with such interim consolidated financial statements delivered pursuant to clauses (ii) and (iii), the “Interim 2014 Financial Statements”); provided, all however, that if the Closing has not occurred prior to February 28, 2015, the Seller shall also deliver to Buyer as soon as reasonably practicable but in any event no later than April 30, 2015 audited combined balance sheets, income statements and statements of cash flows and shareowner’s equity (deficit) of the Transferred Business on an historical basis taking into account adjustments required by Regulation S-X and prepared on a “predecessor” basis (together with an unqualified report of Seller’s independent accountants thereon; provided, that the inclusion of explanatory language in the report, without more, will not make such consolidated statements to be duly certified by such independent public accountants report qualified) of recognized national standing approved by the Board to prepare such reports;Transferred Business for the year ending December 31, 2014 (together with the Audited Financial Statements and the Interim 2014 Financial Statements, the “Financial Statements”).
(b) As soon as available and in any event within forty-five (45) days after Following the end of each of the first three quarters of each fiscal year of the Company, an unaudited balance sheet of the Company and its Subsidiaries, if any, as of the end of such quarter and the related unaudited statements of income and members’ equity and of cash flows of the Company Closing Date for the period commencing at the end of the previous fiscal year and ending with the end of such quarter, setting forth in each case in comparative form the corresponding figures for the corresponding a period of the preceding fiscal year and the budget for such current one year, all in reasonable detail Seller shall provide Buyer with such financial information from and prepared in accordance after January 1, 2013 through the Closing for which quarterly financial statements were not previously provided to Buyer as the Buyer may reasonably request with GAAP (subject respect to year-end audit adjustments and not including all footnotes thereto the Transferred Business that may be required in accordance by Buyer to comply with GAAP);
(c) Upon request (but not more frequently than the delivery of the financial statements described in Sections 7.2(a) and 7.2(b)), a statement showing the number of Units of each class and series of membership interests (including Profits Interests) and securities convertible into or exercisable for Units outstanding at the end of the applicable period, the Junior Units issuable upon conversion or exercise of any outstanding securities convertible or exercisable for Junior Units and the exchange ratio or exercise price applicable thereto, and the number of Units not yet issued but reserved for issuance under the Equity Incentive Plan, if any, all in sufficient detail as to permit the Preferred Unit Holders to calculate their respective percentage equity ownership in the Company;
(d) As soon as available and in any event within thirty (30) days after the end of each calendar month, a statement of recognized revenue, bookings and retained earnings on a monthly basis, compared against the corresponding figures from such month from the preceding fiscal year and the budget for such current year; and
(e) Not later than sixty (60) days after December 31 of each year, an annual budget and quarterly and monthly operating budgets for such fiscal year in a form and with such detail as may be acceptable to a majority of the Directorsits SEC reporting obligations.
Appears in 2 contracts
Samples: Stock Purchase Agreement (At&t Inc.), Stock Purchase Agreement (Frontier Communications Corp)
Financial Information. The Company will furnish to each Major Holder Borrower shall supply or procure the information set forth in this Section 7.2; provided, that the Company shall not be required to furnish such information to a Major Holder if the Board determines in good faith that such Major Holder is a competitor supply to the Company (provided that in no event shall Kinnevik (or its Affiliates) or Oak (or its Affiliates) be deemed to be a competitor Loan Participant, to the Company and that, as of extent such materials are not made available on the Effective Date, Walgreens (and its Affiliates) is deemed to not be a competitor to Borrower’s or Holdings’ website or the Company):XXXXX system:
(ai) As as soon as practicable and in any event within 120 days after the end of each fiscal year of Holdings, consolidated statements of income and cash flows and a consolidated statement of stockholders’ equity of Holdings and its Subsidiaries (including the CompanyBorrower) for such year, and in any event within one hundred fifty (150) days thereafter, a copy consolidated balance sheet of the annual audited financial statements for such fiscal year for the Company Holdings and its Subsidiaries, if any, Subsidiaries (including therein balance sheets of the Company and its Subsidiaries, if any, Borrower) as of at the end of such fiscal year and statements of income and members’ equity and of cash flows of the Company for such fiscal year, setting forth in each case in comparative form the corresponding consolidated figures for from the preceding fiscal yearannual audit, all prepared in accordance with generally accepted accounting principles consistently applied (“GAAP”), all such consolidated statements to be duly certified reasonable detail and reported on by such independent public accountants of recognized national standing selected by Holdings (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 Holdings and its Subsidiaries (including the Borrower) on a consolidated basis in accordance with GAAP consistently applied (except for inconsistencies required by changes to GAAP and changes approved by such accountants in accordance with GAAP), subject to the Board to prepare such reportsabsence of footnotes;
(bii) As as soon as available practicable and in any event within forty-five (45) 90 days after the end of each of quarterly period (other than the first three quarters of last quarterly period) in each fiscal year of Holdings and the CompanyBorrower beginning after March 31, an unaudited balance sheet 2011, consolidated statements of income, stockholders’ equity and cash flows of Holdings and its Subsidiaries (including the Borrower) for the period from the beginning of the Company and its Subsidiaries, if any, as of current fiscal year to the end of such quarter quarterly period, and a consolidated balance sheet of Holdings and its Subsidiaries (including the related unaudited statements of income and members’ equity and of cash flows of the Company for the period commencing Borrower) as at the end of the previous fiscal year and ending with the end of such quarterquarterly period, setting forth in each case in comparative form the corresponding figures for the corresponding period of in the preceding fiscal year and the budget for such current year, all in reasonable detail and presenting fairly in all material respects the financial condition [**] — Confidential treatment has been requested for the bracketed portions. The confidential redacted portion has been omitted and filed separately with the Securities and Exchange Commission. and results of operations of Holdings and its Subsidiaries (including the Borrower), certified by the Borrower’s chief executive officer or chief financial officer as having been prepared on a consolidated basis in accordance with GAAP consistently applied (except for inconsistencies required by changes to GAAP and changes approved by the accountants referred to in clause (i) above in accordance with GAAP), subject to normal year-end audit adjustments and not including all footnotes thereto that may be required in accordance with GAAP);
(c) Upon request (but not more frequently than the delivery absence of the financial statements described in Sections 7.2(a) and 7.2(b)), a statement showing the number of Units of each class and series of membership interests (including Profits Interests) and securities convertible into or exercisable for Units outstanding at the end of the applicable period, the Junior Units issuable upon conversion or exercise of any outstanding securities convertible or exercisable for Junior Units and the exchange ratio or exercise price applicable thereto, and the number of Units not yet issued but reserved for issuance under the Equity Incentive Plan, if any, all in sufficient detail as to permit the Preferred Unit Holders to calculate their respective percentage equity ownership in the Company;
(d) As soon as available and in any event within thirty (30) days after the end of each calendar month, a statement of recognized revenue, bookings and retained earnings on a monthly basis, compared against the corresponding figures from such month from the preceding fiscal year and the budget for such current yearfootnotes; and
(eiii) Not later than sixty promptly, any documents or information that Holdings files with the Securities and Exchange Commission and that is disclosable to Holdings’ shareholders; and
(60iv) days after December 31 of each yearpromptly following any reasonable request therefor by the Loan Participant, an annual budget and quarterly and monthly operating budgets for such fiscal year in a form and with such detail as may be acceptable to a majority further non-confidential information that is of the Directorskind that would generally be made available by the Borrower upon request by a secured lender regarding the Mortgage Estate in respect of the Designated Aircraft, financial condition, business and operations of the Borrower.
Appears in 1 contract
Financial Information. The Company will furnish to each Major Holder the information set forth in this Section 7.2; provided, that the Company shall not be required to furnish such information to a Major Holder if the Board determines in good faith that such Major Holder is a competitor to the Company (provided that in no event shall Kinnevik (or its Affiliates) or Oak (or its Affiliates) be deemed to be a competitor to the Company and that, as of the Effective Date, Walgreens (and its Affiliates) is deemed to not be a competitor to the Company):
(a) As soon as practicable after the end of each fiscal year of the CompanyThe Borrower will, and in any event within one hundred fifty (150will cause each Subsidiary other than the Subsidiaries listed on Schedule 5.03(a) days thereafterto, a copy keep its books of the annual audited financial statements for such fiscal year for the Company and its Subsidiaries, if any, including therein balance sheets of the Company and its Subsidiaries, if any, as of the end of such fiscal year and statements of income and members’ equity and of cash flows of the Company for such fiscal year, setting forth in each case in comparative form the corresponding figures for the preceding fiscal year, all prepared account in accordance with generally accepted accounting principles consistently applied (“GAAP”), all such consolidated statements to be duly certified by such independent public accountants of recognized national standing approved by the Board to prepare such reports;principles.
(b) As The Borrower will (subject to the last paragraph of this Section 5.03) furnish to the Administrative Agent for distribution to the Banks:
(i) as soon as available and in any event within forty-five (45) 60 days after the end close of each of the first three quarters of each fiscal year of the Company, an unaudited balance sheet of the Company and its Subsidiaries, if anyBorrower, as of at the end of such quarter of, and the related unaudited statements of income and members’ equity and of cash flows of the Company for the period commencing at the end of the previous fiscal year and ending with with, such quarter, unaudited consolidated balance sheets of the Borrower and its Consolidated Entities and the related unaudited consolidated statements of operations, changes in equity and cash flow of the Borrower and its Consolidated Entities for such quarter and for the portion of the Borrower’s fiscal year ended at the end of such quarter, setting forth in each case in comparative form the corresponding figures for the corresponding period quarter and the corresponding portion of the preceding Borrower’s previous fiscal year and the budget for such current year, all in reasonable detail and prepared certified (subject to normal year-end adjustments) as to fairness of presentation in accordance with GAAP generally accepted accounting principles in all material respects and consistency (subject to yearexcept for changes concurred in by the Borrower’s independent public accountants) by the Chief Executive Officer, the Chief Financial Officer, the Treasurer, an Assistant Secretary-end audit adjustments and not including all footnotes thereto that may be required in accordance with GAAP)Treasurer or the Controller of the Borrower;
(cii) Upon request (but not more frequently than the delivery of the financial statements described in Sections 7.2(a) and 7.2(b)), a statement showing the number of Units of each class and series of membership interests (including Profits Interests) and securities convertible into or exercisable for Units outstanding at the end of the applicable period, the Junior Units issuable upon conversion or exercise of any outstanding securities convertible or exercisable for Junior Units and the exchange ratio or exercise price applicable thereto, and the number of Units not yet issued but reserved for issuance under the Equity Incentive Plan, if any, all in sufficient detail as to permit the Preferred Unit Holders to calculate their respective percentage equity ownership in the Company;
(d) As soon as available practicable and in any event within thirty the earlier of (30i) two Domestic Business Days after filing with the Securities and Exchange Commission and (ii) 120 days after the close of each fiscal year of the Borrower, as at the end of each calendar monthand for the fiscal year just closed, consolidated balance sheets of the Borrower and its Consolidated Entities and the related consolidated statements of operations, changes in equity and cash flow for such fiscal year for the Borrower and its Consolidated Entities, all in reasonable detail and certified (without any qualification as to the scope of the audit) by Deloitte & Touche LLP or other independent public accountants of nationally recognized standing selected by the Borrower, who shall have audited the books and accounts of the Borrower for such fiscal year;
(iii) with reasonable promptness, copies of all regular and periodical reports (including Current Reports on Form 8-K) filed with, or furnished to, the Securities and Exchange Commission;
(iv) promptly after the public announcement of, or promptly after receiving a written notice of, a statement change (whether an increase or decrease) in any rating issued by either S&P or Xxxxx’x, solely to the extent that the Borrower is then under an existing contract with such agency for the provision of recognized revenueratings information pertaining to any securities of, bookings and retained earnings on or guaranteed by, the Borrower or any of its Subsidiaries or affiliates, a monthly basis, compared against the corresponding figures from notice setting forth such month from the preceding fiscal year and the budget for such current yearchange; and
(ev) Not later than sixty with reasonable promptness, such other information respecting the business, operations and financial condition of the Borrower or any of its Subsidiaries or any Joint Venture as any Bank may, from time to time, reasonably request, including, without limitation, with respect to the performance and observance by the Borrower of the covenants and conditions contained in this Agreement. Reports or financial information required to be delivered pursuant to clauses (60b)(i), (b)(ii) days after December 31 and (b)(iii) of each year, an annual budget and quarterly and monthly operating budgets for this Section 5.03 shall be deemed to have been delivered on the date on which the Borrower posts such fiscal year in a form and with reports or financial information on the Borrower’s website (xxx.xxxxxx.xxx) or at such detail other website as may be acceptable notified to a majority the Administrative Agent and the Banks or when such reports or financial information are posted on the SEC’s website at xxx.xxx.xxx; provided, that the Borrower shall notify the Administrative Agent of any such posting; and provided further that the Borrower shall deliver paper copies of the Directorsreports or financial information required to be delivered pursuant to clauses (b)(i), (b)(ii) and (b)(iii) of this Section 5.03 to the Administrative Agent, if so requested by any Bank to the Administrative Agent, until written notice to cease delivering such paper copies is given by such Bank to the Administrative Agent.
Appears in 1 contract
Samples: Revolving Credit Agreement (National Rural Utilities Cooperative Finance Corp /Dc/)
Financial Information. (i) The Company will furnish deliver to each Major Holder the information set forth in this Section 7.2; provided, that the Company shall not be required to furnish such information to a Major Holder if the Board determines in good faith that such Major Holder is a competitor to the Company (provided that in no event shall Kinnevik (or its Affiliates) or Oak (or its Affiliates) be deemed to be a competitor to the Company and that, Buyer as of the Effective Date, Walgreens (and its Affiliates) is deemed to not be a competitor to the Company):
(a) As soon as practicable after the end of each fiscal quarter or fiscal year of the Company, as appropriate, and in any no event within one hundred fifty later than twenty (15020) days thereafterfollowing the end of the relevant period, a one copy of the annual audited financial statements for such fiscal year for the Company and its Subsidiaries, if any, including therein an unaudited consolidated balance sheets sheet of the Company and its Subsidiaries, if any, subsidiaries as of at the end of such fiscal year quarter, and unaudited consolidated statements of income income, retained earnings and members’ equity and of cash flows changes in financial position of the Company and its subsidiaries for such fiscal year, quarter; setting forth in each case in comparative form the corresponding figures for the preceding corresponding periods in the previous fiscal year, ; all prepared in accordance with generally accepted accounting principles consistently applied (“GAAP”)GAAP except that the financial statements referred to in this Section 4(e)(i) do not contain footnotes and are subject to normal year-end audit adjustments, all such consolidated statements to which will not, individually or in the aggregate, be duly certified by such independent public accountants of recognized national standing approved by the Board to prepare such reports;material in magnitude.
(bii) As soon as available and in any event within forty-five In addition, the Company will deliver to Buyer (45x) no later than forty (40) days after the end of each of the first three quarters relevant period, any and all information necessary for the Buyer to fulfill its reporting obligations with the SEC; (y) within five (5) days after the filing thereof with the SEC, a copy of each fiscal filing made by the Company with the SEC; and (z) within two (2) days after release thereof, copies of all press releases issued by the Company or any of its subsidiaries.
(iii) With respect to annual information, the Company will deliver to Buyer, no later than sixty (60) days after year end, one copy of the Company, an unaudited audited consolidated balance sheet of the Company and its Subsidiaries, if any, subsidiaries as of at the end of such quarter year, and the related unaudited audited consolidated statements of income income, retained earnings and members’ equity and of cash flows changes in financial position of the Company and its subsidiaries for the period commencing at the end of the previous fiscal year and ending with the end of such quarter, year; setting forth in each case in comparative form the corresponding figures for the corresponding period of periods in the preceding previous fiscal year and the budget for such current year, ; all in reasonable detail and prepared in accordance with GAAP GAAP, and which audited financial statements shall be accompanied by (subject to year-end audit adjustments and not including all footnotes thereto that may be required in accordance with GAAP);
(cA) Upon request (but not more frequently than the delivery an opinion thereon of the financial statements described in Sections 7.2(aindependent certified public accountants regularly retained by the Company, or any other form of independent certified public accountants of recognized national standing selected by the Company and (B) and 7.2(b))a report of such independent certified public accountants confirming any calculation or adjustment made pursuant to Section 5 herein, a statement showing the number of Units of each class and series of membership interests (including Profits Interests) and securities convertible into or exercisable for Units outstanding at the end Section 6 of the applicable period, the Junior Units issuable upon conversion or exercise Form of any outstanding securities convertible or exercisable for Junior Units and the exchange ratio or exercise price applicable theretoWarrant attached hereto as Exhibit A, and any other adjustments relating to securities authorized by the number of Units not yet issued but reserved for issuance under the Equity Incentive Plan, if any, all in sufficient detail as to permit the Preferred Unit Holders to calculate their respective percentage equity ownership in the Company;
(d) As soon as available and in any event within thirty (30) days after the end of each calendar month, a statement of recognized revenue, bookings and retained earnings on a monthly basis, compared against the corresponding figures from Company during such month from the preceding fiscal year and the budget for such current year; and
(e) Not later than sixty (60) days after December 31 of each year, an annual budget and quarterly and monthly operating budgets for such fiscal year in a form and with such detail as may be acceptable to a majority of the Directors.
Appears in 1 contract
Samples: Stock Purchase Agreement (Agway Inc)
Financial Information. The Company will furnish to each Major Holder the information set forth in this Section 7.2; provided, that the Company shall not be required to furnish such information to a Major Holder if the Board determines in good faith that such Major Holder is a competitor to the Company (provided that in no event shall Kinnevik (or its Affiliates) or Oak (or its Affiliates) be deemed to be a competitor to the Company and that, as of the Effective Date, Walgreens (and its Affiliates) is deemed to not be a competitor to the Company):
(a) As the Borrower hereby undertakes that so long as the Advance or any other sum owing under this Agreement remains outstanding and as soon as practicable after the end of each fiscal year of the Companysame become available, and but in any event within one hundred fifty (150) days thereafter, a copy of the annual audited financial statements for such fiscal year for the Company and its Subsidiaries, if any, including therein balance sheets of the Company and its Subsidiaries, if any, as of the end of such fiscal year and statements of income and members’ equity and of cash flows of the Company for such fiscal year, setting forth in each case in comparative form the corresponding figures for the preceding fiscal year, all prepared in accordance with generally accepted accounting principles consistently applied (“GAAP”), all such consolidated statements to be duly certified by such independent public accountants of recognized national standing approved by the Board to prepare such reports;
(b) As soon as available and in any event within forty-five (45) 150 days after the end of each of its financial years, deliver to the first three quarters of each fiscal year Lender and the Trustee copies of the CompanyGroup’s consolidated financial statements for such financial year, an unaudited balance sheet of the Company and its Subsidiaries, if any, as of the end of such quarter and the related unaudited statements of income and members’ equity and of cash flows of the Company for the period commencing at the end of the previous fiscal year and ending with the end of such quarter, setting forth in each case in comparative form audited by the corresponding figures for the corresponding period of the preceding fiscal year and the budget for such current year, all in reasonable detail Auditors and prepared in accordance with GAAP (subject to year-end audit adjustments and not including all footnotes thereto that may be required in accordance IFRS, consistently applied with GAAP)the corresponding financial statements for the preceding period;
(cb) Upon request (but not more frequently than the delivery of Borrower hereby undertakes that so long as the financial statements described in Sections 7.2(a) Advance or any other sum owing under this Agreement remains outstanding and 7.2(b)), a statement showing the number of Units of each class and series of membership interests (including Profits Interests) and securities convertible into or exercisable for Units outstanding at the end of the applicable period, the Junior Units issuable upon conversion or exercise of any outstanding securities convertible or exercisable for Junior Units and the exchange ratio or exercise price applicable thereto, and the number of Units not yet issued but reserved for issuance under the Equity Incentive Plan, if any, all in sufficient detail as to permit the Preferred Unit Holders to calculate their respective percentage equity ownership in the Company;
(d) As soon as available and the same become available, but in any event within thirty (30) 90 days after the end of each calendar monthhalf of each of its financial years, a statement of recognized revenuedeliver to the Lender and the Trustee the Group’s consolidated financial statements for such period, bookings in each case reviewed by the Auditors and retained earnings on a monthly basisprepared in accordance with IFRS, compared against consistently applied with the corresponding figures from such month from financial statements for the preceding fiscal year period;
(c) the Borrower hereby undertakes that, so long as the Advance or any other sum owing under this Agreement remains outstanding it shall deliver to the Lender and the budget for Trustee, within a reasonable timeframe, such current yearadditional information regarding the financial position or the business of the Borrower or the Group and its Material Subsidiaries, takes as a whole, as the Lender may reasonably request, including providing certificates to the Trustee pursuant to the Trust Deed;
(d) the Borrower shall ensure that each set of consolidated financial statements delivered by it pursuant to this Clause 10.9 (Financial information) is:
(i) prepared on the same basis as was used in the preparation of its Original Financial Statements and in accordance with IFRS and consistently applied;
(ii) in the case of the statements provided pursuant to sub Clause 10.9(a) above, accompanied by an audit report thereon of the Auditors, and in the case of the statements provided pursuant to sub-Clause 10.9(b) above, accompanied by a review report thereon of the Auditors, in each case including opinions of such Auditors with accompanying notes and annexes and in a form satisfactory to the Lender; and
(iii) in the case of the statements provided pursuant to sub Clause 10.9(a) above and sub-Clause 10.9(b) (above), certified by an Authorised Signatory of the Borrower as giving a true and fair view of the Group’s consolidated financial condition as at the end of the period to which those consolidated financial statements relate and of the results of the Group’s operations during such period; and
(e) Not later than sixty (60) days after December 31 the Borrower shall from time to time, on the request of each yearthe Lender, an annual budget and quarterly and monthly operating budgets for such fiscal year in a form and furnish the Lender with such detail as may be acceptable to a majority information about the business and consolidated financial condition of the DirectorsBorrower or the Group as the Lender or the Trustee may reasonably require.
Appears in 1 contract
Samples: Loan Agreement
Financial Information. The Company will furnish to each Major Holder Borrower shall supply or procure the information set forth in this Section 7.2; provided, that the Company shall not be required to furnish such information to a Major Holder if the Board determines in good faith that such Major Holder is a competitor supply to the Company (provided that in no event shall Kinnevik (or its Affiliates) or Oak (or its Affiliates) be deemed to be a competitor Loan Participant, to the Company and that, as of extent such materials are not made available on the Effective Date, Walgreens (and its Affiliates) is deemed to not be a competitor to Borrower’s or Holdings’ website or the Company):XXXXX system:
(ai) As as soon as practicable and in any event within 120 days after the end of each fiscal year of Holdings, consolidated statements of income and cash flows and a consolidated statement of stockholders’ equity of Holdings and its Subsidiaries (including the CompanyBorrower) for such year, and in any event within one hundred fifty (150) days thereafter, a copy consolidated balance sheet of the annual audited financial statements for such fiscal year for the Company Holdings and its Subsidiaries, if any, Subsidiaries (including therein balance sheets of the Company and its Subsidiaries, if any, Borrower) as of at the end of such fiscal year and statements of income and members’ equity and of cash flows of the Company for such fiscal year, setting forth in each case in comparative form the corresponding consolidated figures for from the preceding fiscal yearannual audit, all prepared in accordance with generally accepted accounting principles consistently applied (“GAAP”), all such consolidated statements to be duly certified reasonable detail and reported on by such independent public accountants of recognized national standing selected by Holdings (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 Holdings and its Subsidiaries (including the Borrower) on a consolidated basis in accordance with GAAP consistently applied (except for inconsistencies required by changes to GAAP and changes approved by such accountants in accordance with GAAP), subject to the Board to prepare such reportsabsence of footnotes;
(bii) As as soon as available practicable and in any event within forty-five (45) 90 days after the end of each of quarterly period (other than the first three quarters of last quarterly period) in each fiscal year of Holdings and the CompanyBorrower beginning after March 31, an unaudited balance sheet 2011, consolidated statements of income, stockholders’ equity and cash flows of Holdings and its Subsidiaries (including the Borrower) for the period from the beginning of the Company and its Subsidiaries, if any, as of current fiscal year to the end of such quarter quarterly period, and a consolidated balance sheet of Holdings and its Subsidiaries (including the related unaudited statements of income and members’ equity and of cash flows of the Company for the period commencing Borrower) as at the end of the previous fiscal year and ending with the end of such quarterquarterly period, setting forth in each case in comparative form the corresponding figures for the corresponding period of in the preceding fiscal year and the budget for such current year, all in reasonable detail and presenting fairly in all material respects the financial condition and results of operations of Holdings and its Subsidiaries (including the Borrower), certified by the Borrower’s chief executive officer or chief financial officer as having been prepared on a consolidated basis in accordance with GAAP consistently applied (except for inconsistencies required by changes to GAAP and changes approved by the accountants referred to in clause (i) above in accordance with GAAP), subject to normal year-end audit adjustments and not including all footnotes thereto that may be required in accordance with GAAP);
(c) Upon request (but not more frequently than the delivery absence of the financial statements described in Sections 7.2(a) and 7.2(b)), a statement showing the number of Units of each class and series of membership interests (including Profits Interests) and securities convertible into or exercisable for Units outstanding at the end of the applicable period, the Junior Units issuable upon conversion or exercise of any outstanding securities convertible or exercisable for Junior Units and the exchange ratio or exercise price applicable thereto, and the number of Units not yet issued but reserved for issuance under the Equity Incentive Plan, if any, all in sufficient detail as to permit the Preferred Unit Holders to calculate their respective percentage equity ownership in the Company;
(d) As soon as available and in any event within thirty (30) days after the end of each calendar month, a statement of recognized revenue, bookings and retained earnings on a monthly basis, compared against the corresponding figures from such month from the preceding fiscal year and the budget for such current yearfootnotes; and
(eiii) Not later than sixty promptly, any documents or information that Holdings files with the Securities and Exchange Commission and that is disclosable to Holdings’ shareholders; and
(60iv) days after December 31 of each yearpromptly following any reasonable request therefor by the Loan Participant, an annual budget and quarterly and monthly operating budgets for such fiscal year in a form and with such detail as may be acceptable to a majority further non-confidential information that is of the Directorskind that would generally be made available by the Borrower upon request by a secured lender regarding the Mortgage Estate in respect of the Designated Aircraft, financial condition, business and operations of the Borrower.
Appears in 1 contract
Financial Information. The As soon as practicable after the end of --------------------- each fiscal year, and in any event within one hundred twenty (120) days thereafter, the Company will furnish to provide each Major Holder the information set forth in this Section 7.2; provided, that the Company shall not be required to furnish such information to a Major Holder if the Board determines in good faith that such Major Holder is a competitor to the Company (provided that in no event shall Kinnevik (or its Affiliates) or Oak (or its Affiliates) be deemed to be a competitor to Stockholder with consolidated balance sheets of the Company and thatits subsidiaries, if any, as of the Effective Dateend of such fiscal year, Walgreens (and consolidated statements of income, stockholders' equity and cash flows of the Company and its Affiliatessubsidiaries, if any, for such year, prepared in accordance with generally accepted accounting principles and setting forth in each case in comparative form the figures for the previous fiscal year, all in reasonable detail and audited (without qualification as to scope) is deemed to not be a competitor to by independent auditors of national standing selected by the Company):. In addition, the Company will provide each Stockholder with the following reports for so long as the Stockholder is a holder of a minimum of two hundred fifty thousand (250,000) shares of Preferred or Common Stock, including for purposes of this Section 2 any such Shares which have been transferred to an affiliate of a Stockholder:
(a) As soon as practicable after the end of each month and fiscal year of the Company, and in any event within one hundred fifty (150) days thereafter, a copy of the annual audited financial statements for such fiscal year for the Company and its Subsidiaries, if any, including therein balance sheets of the Company and its Subsidiaries, if any, as of the end of such fiscal year and statements of income and members’ equity and of cash flows of the Company for such fiscal year, setting forth in each case in comparative form the corresponding figures for the preceding fiscal year, all prepared in accordance with generally accepted accounting principles consistently applied (“GAAP”), all such consolidated statements to be duly certified by such independent public accountants of recognized national standing approved by the Board to prepare such reports;
(b) As soon as available and in any event within forty-five (45) days after the end of each of the first three quarters of each fiscal year of the Company, an unaudited balance sheet of the Company and its Subsidiaries, if any, as of the end of such quarter and the related unaudited statements of income and members’ equity and of cash flows of the Company for the period commencing at the end of the previous fiscal year and ending with the end of such quarter, setting forth in each case in comparative form the corresponding figures for the corresponding period of the preceding fiscal year and the budget for such current year, all in reasonable detail and prepared in accordance with GAAP (subject to year-end audit adjustments and not including all footnotes thereto that may be required in accordance with GAAP);
(c) Upon request (but not more frequently than the delivery of the financial statements described in Sections 7.2(a) and 7.2(b)), a statement showing the number of Units of each class and series of membership interests (including Profits Interests) and securities convertible into or exercisable for Units outstanding at the end of the applicable period, the Junior Units issuable upon conversion or exercise of any outstanding securities convertible or exercisable for Junior Units and the exchange ratio or exercise price applicable thereto, and the number of Units not yet issued but reserved for issuance under the Equity Incentive Plan, if any, all in sufficient detail as to permit the Preferred Unit Holders to calculate their respective percentage equity ownership in the Company;
(d) As soon as available and in any event within thirty (30) days after and forty-five (45) days, respectively, thereafter, a consolidated balance sheet of the Company and its subsidiaries, if any, as of the end of each calendar monthsuch period, consolidated statements of income, consolidated statements of changes in financial condition, a consolidated statement of cash flow of the Company and its subsidiaries and a statement of recognized revenuestockholders' equity for such period and for the current fiscal year to date, bookings and retained earnings setting forth in each case in comparative form the figures for corresponding periods in the previous fiscal year, and setting forth in comparative form the budgeted figures, prepared in accordance with generally accepted accounting principles (other than for accompanying notes), subject to changes resulting from year-end audit adjustments, all in reasonable detail and signed by the principal financial or accounting officer of the Company.
(b) As soon as practicable after its adoption by the Board of Directors, a copy of the annual operating plan of the Company for the next fiscal year and an annual budget for the next fiscal year of the Company containing profit and loss projections, cash flow projections, and capital expenditures, all on a monthly basis, compared against the corresponding figures from such month from the preceding fiscal year and the budget for such current year; and
(e) Not later than sixty (60) days after December 31 of each year, an annual budget and quarterly and monthly operating budgets for such fiscal year in a form and with such detail as may be acceptable to a majority of the Directors.
Appears in 1 contract
Financial Information. The Company will shall furnish to each Major Holder the information set forth in this Section 7.2; provided, that Agent (and the Company shall not be required Agent agrees to furnish such information to a Major Holder if the Board determines in good faith that such Major Holder is a competitor promptly deliver or make available to the Company (provided that in no event shall Kinnevik (or its Affiliates) or Oak (or its Affiliates) be deemed to be a competitor to the Company and that, as of the Effective Date, Walgreens (and its Affiliates) is deemed to not be a competitor to the CompanyLenders):
(a) As soon as practicable available, but in any event not later than the fifth Business Day after the 105th day following the end of each fiscal year Fiscal Year of the Company, and in any event within one hundred fifty Company (150) days thereafter, a copy of or such longer period as may be permitted by the annual audited financial statements for such fiscal year SEC for the Company and its Subsidiariesfiling of annual reports on Form 10-K) (commencing with the Fiscal Year ending December 31, if any2019), including therein audited consolidated balance sheets of the Company Consolidated Parties, as at the end of such Fiscal Year, and its Subsidiariesthe related consolidated statements of operations, if anyshareholders’ equity and cash flows, setting forth, in each case, in comparative form the figures for and as of the end of the previous Fiscal Year, plus a customary narrative review for such fiscal year Fiscal Year, fairly presenting in all material respects the financial position and statements the results of income and members’ equity and of cash flows operations of the Company for such fiscal year, setting forth in each case in comparative form Consolidated Parties as at the corresponding figures date thereof and for the preceding fiscal yearFiscal Year then ended, all and prepared in accordance with generally accepted accounting principles consistently applied (“GAAP”), GAAP in all such material respects. Such consolidated statements to shall be duly certified reported on by such independent public accountants of recognized national standing approved by (without a “going concern” or like qualification or exception, or qualification arising out of the Board scope of the audit unless such qualification or exception is solely with respect to, or resulting solely from, (i) an upcoming maturity date of any material Indebtedness that is scheduled to prepare occur within one year from the date such reportsreport is delivered or (ii) any potential inability to satisfy any financial maintenance covenant included in any Indebtedness of the Company or any Subsidiary on a future date or in a future period);
(b) As soon as available and available, but in any event within forty-five (45) days not later than the fifth Business Day after the 50th day following the end of each of the first three quarters Fiscal Quarters of each fiscal year of the Company, an unaudited balance sheet Fiscal Year of the Company and its Subsidiaries(or such longer period as may be permitted by the SEC for the filing of quarterly reports on Form 10-Q) (commencing with the Fiscal Quarter ending June 30, if any2019), unaudited consolidated balance sheets of the Consolidated Parties, as of at the end of such quarter Fiscal Quarter, and the related unaudited consolidated statements of operations and comprehensive income and members’ equity and of cash flows of the Company Consolidated Parties for such Fiscal Quarter and for the period commencing at from the end beginning of the previous fiscal year and ending with Fiscal Year to the end of such quarterFiscal Quarter, setting forth forth, in each case case, in reasonable detail, in comparative form form, the corresponding figures for and as of the corresponding period of in the preceding fiscal year and the budget for such current yearprior Fiscal Year, all in reasonable detail and prepared in accordance all material respects in conformity with GAAP (GAAP, subject to normal year-end audit adjustments and not including the absence of footnotes and certified by a Responsible Officer of the Company as being prepared in all footnotes thereto that may be required material respects in accordance conformity with GAAP)GAAP and fairly presenting in all material respects the Consolidated Parties’ financial position as at the dates thereof and their results of operations for the periods then ended, subject to normal year¬end adjustments and the absence of footnotes;
(c) Upon request (As soon as available, but in any event not more frequently later than the delivery fifth Business Day after the 105th day following the end of each Fiscal Year of the financial Company, annual forecasts (to include forecasted consolidated balance sheets, and the related forecasted consolidated statements described in Sections 7.2(aof operations and cash flows, U.S. Borrowing Base, Canadian Borrowing Base, Excess Availability and Canadian Availability projections) and 7.2(b)), a statement showing for the number of Units of each class and series of membership interests (including Profits Interests) and securities convertible into or exercisable for Units outstanding Consolidated Parties as at the end of the applicable period, the Junior Units issuable upon conversion or exercise and for each fiscal quarter of any outstanding securities convertible or exercisable for Junior Units and the exchange ratio or exercise price applicable thereto, and the number of Units not yet issued but reserved for issuance under the Equity Incentive Plan, if any, all in sufficient detail as to permit the Preferred Unit Holders to calculate their respective percentage equity ownership in the Companysuch Fiscal Year;
(d) As soon as available Concurrently with the delivery of the annual audited Financial Statements pursuant to Section 7.2(a) and in any event within thirty (30) days after the end of each calendar monthquarterly Financial Statements pursuant to Section 7.2(b), a statement duly completed Compliance Certificate signed by a Responsible Officer of recognized revenue, bookings and retained earnings on a monthly basis, compared against the corresponding figures from such month from the preceding fiscal year and the budget for such current yearCompany; and
(e) Not later than sixty Such additional information as the Agent on its own behalf or on behalf of any Lender (60acting through the Agent) days after December 31 may from time to time reasonably request regarding the financial and business affairs of each year, an annual budget and quarterly and monthly operating budgets for any Obligor or any of its Subsidiaries. Documents required to be delivered pursuant to Section 7.2(a) or (b) (to the extent any such fiscal year documents are included in a form and materials otherwise filed with such detail as the SEC) may be acceptable delivered electronically and if so delivered, shall be deemed to have been delivered on the date on which such documents are (i) posted on the Company’s behalf on an Internet or intranet website, if any, to which each Lender and the Agent have access (whether a majority commercial, third-party website or whether sponsored by the Agent); or (ii) available on the SEC’s website on the Internet at xxx.xxx.xxx; provided that the Company shall notify the Agent (which shall notify each Lender) of the Directorsposting of any such documents.
Appears in 1 contract
Samples: Credit Agreement (Herc Holdings Inc)
Financial Information. The Company will furnish to each Major Holder the information set forth in this Section 7.2; provided, that the Company shall not be required to furnish such information to a Major Holder if the Board determines in good faith that such Major Holder is a competitor Furnish to the Company (provided that in no event shall Kinnevik (or its Affiliates) or Oak (or its Affiliates) be deemed to be a competitor to the Company and that, as of the Effective Date, Walgreens (and its Affiliates) is deemed to not be a competitor to the Company):Lender:
(a) As as soon as practicable available, but in any event within one hundred eighty (180) days after the end of each fiscal year of the CompanyBorrower, commencing with the fiscal year ending March 31, 2024 and in any event within one hundred fifty (150) days continuing for each fiscal year thereafter, a copy (i) the audited consolidated balance sheet of the annual audited financial statements for such fiscal year for the Company and its Subsidiaries, if any, including therein balance sheets of the Company and its Subsidiaries, if any, Borrower as of at the end of such fiscal year and the related consolidated statements of income income, cash flows and changes in members’ equity and of cash flows of the Company (or comparable statement) for such fiscal yearyear as contained in the annual report to the Investors of Borrower and notes thereto, setting forth in each case in comparative form the corresponding figures for the preceding fiscal previous year, all prepared in accordance with generally accepted accounting principles consistently applied (“GAAP”), all such consolidated statements to be duly accompanied by an unqualified report and opinion thereon of independent certified by such independent public accountants of recognized national standing approved by acceptable to the Board to prepare such reportsLender;
(b) As as soon as available and in any event within forty-five (45) days after the end of each of the first three quarters of each fiscal year of the Companyavailable, an unaudited balance sheet of the Company and its Subsidiaries, if any, as of the end of such quarter and the related unaudited statements of income and members’ equity and of cash flows of the Company for the period commencing at the end of the previous fiscal year and ending with the end of such quarter, setting forth in each case in comparative form the corresponding figures for the corresponding period of the preceding fiscal year and the budget for such current year, all in reasonable detail and prepared in accordance with GAAP (subject to year-end audit adjustments and not including all footnotes thereto that may be required in accordance with GAAP);
(c) Upon request (but not more frequently than the delivery of the financial statements described in Sections 7.2(a) and 7.2(b)), a statement showing the number of Units of each class and series of membership interests (including Profits Interests) and securities convertible into or exercisable for Units outstanding at the end of the applicable period, the Junior Units issuable upon conversion or exercise of any outstanding securities convertible or exercisable for Junior Units and the exchange ratio or exercise price applicable thereto, and the number of Units not yet issued but reserved for issuance under the Equity Incentive Plan, if any, all in sufficient detail as to permit the Preferred Unit Holders to calculate their respective percentage equity ownership in the Company;
(d) As soon as available and in any event within thirty (30) days after the end of each calendar fiscal month commencing with the fiscal month ending July 31, 2023 and continuing for each fiscal month thereafter, an unaudited consolidated balance sheet of the Borrower as at the end of such fiscal month and the related unaudited consolidated statements of income, cash flows and changes in shareholder equity (or comparable statement) for such fiscal month setting forth the fair market value, number, and volume of holdings of all underlying investments, certified by the chief financial officer, controller or other appropriate financial officer of the Borrower reasonably satisfactory to the Lender as fairly presenting the financial condition of the Borrower and its results of operation, cash flow and changes in financial position (subject to year-end adjustments), with all of the financial statements in the foregoing clauses (a) and (b) to be complete and correct in all material respects and to be prepared in reasonable detail acceptable to the Lender and in accordance with GAAP;
(c) together with each delivery of financial statements pursuant to clause (b) above, (i) a Compliance Certificate certifying as to the matters set forth therein and (ii) a summary of performance of each Underlying Fund and Permitted Investment, including (A) each Permitted Investment’s Net Asset Value and all distributions and other payments made by such Underlying Fund or any other issuer of any Permitted Investment, and (B) all Underlying Funds and other Permitted Investments acquired during the applicable month, as applicable;
(d) on the thirtieth (or, if there is no corresponding day in any applicable fiscal month, the last calendar day of such fiscal month) calendar day of each fiscal month, commencing on July 31, 2023, a statement current, correct and complete (i) internally prepared schedule of recognized revenueall Permitted Investments of the Loan Parties and (ii) chart of the Loan Parties’ Deposit Accounts, bookings Securities Accounts and retained earnings on Commodity Accounts in substantially the form provided by the Borrower to the Lender prior to the Closing Date;
(e) promptly upon receipt thereof, copies of all financial statements, reports and other material information and other material correspondence sent to or received by the Borrower or any other Loan Party from any Underlying Fund or any other issuer of any Permitted Investment, including notices of default, or the Borrower’s or any other Loan Party’s funding obligation to or its rights under any Underlying Fund or any other issuer of any Permitted Investment and any notice containing a monthly basisreference to any alleged misconduct of the Borrower, compared against any other Loan Party, the corresponding figures from such month from Investment Advisor or any of their respective Subsidiaries;
(f) promptly after the preceding fiscal year execution thereof, copies of all material amendments or other material changes to the Prospectus or the Fund Policies, the Distribution Agreement, the Investment Management Agreement, any Investment Sub-Advisory Agreement, and any new investment advisory contract entered into after the budget for such current yearClosing Date; and
(eg) Not later than sixty (60) days after December 31 of each yearpromptly upon Lxxxxx’s written request, an annual budget and quarterly and monthly operating budgets for such fiscal year in a form and any other financial statements, reports or information with such detail as may be acceptable respect to a majority of any Loan Party reasonably requested by the DirectorsLender.
Appears in 1 contract
Samples: Credit Agreement (First Trust Hedged Strategies Fund)
Financial Information. a. The Company will furnish deliver to each Major Holder Investor that owns (together with any partner, member, fund or other affiliates of such Investor) at least 100,000 shares (as adjusted for stock splits, stock dividends and similar events), as soon as practicable after the information set forth end of each fiscal year, and in this Section 7.2; providedany event within 120 days thereafter, that the Company shall not be required to furnish such information to a Major Holder if the Board determines in good faith that such Major Holder is a competitor to the Company (provided that in no event shall Kinnevik (or its Affiliates) or Oak (or its Affiliates) be deemed to be a competitor to audited consolidated balance sheets of the Company and that, any subsidiaries as of the Effective Dateend of such fiscal year, Walgreens (and its Affiliates) is deemed to not be consolidated statements of income and stockholders equity and consolidated statements of cash flows of the Company and any subsidiaries for such year, prepared in accordance with generally accepted accounting principles and accompanied by a competitor to report of an independent certified public accountant of national standing selected by the Company):. EXHIBIT 10.4
b. The Company will deliver to each Investor that owns (atogether with any partner, member, fund or other affiliates of such Investor) at least 100,000 (as adjusted for stock splits, stock dividends, and similar events) the following reports: i As soon as practicable after the end of each quarter within each fiscal year of the Company, and in any event within one hundred fifty (150) 45 days thereafter, a copy of the annual audited financial statements for such fiscal year for the Company and its Subsidiaries, if any, including therein consolidated balance sheets sheet of the Company and its Subsidiaries, if any, any subsidiaries as of the end of each such fiscal year quarter, and consolidated statements of income of the Company and members’ equity any subsidiaries for such period and for the then current fiscal year to date, prepared in accordance with generally accepted accounting principles (other than for accompanying notes), subject to changes resulting from year-end audit adjustments, and signed by the principal financial or accounting officer of cash flows the Company; and ii As soon as it is available, but in no event later than thirty (30) days prior to the beginning of the Company's fiscal year, the annual operating plans, including monthly projected financials for that fiscal year, of the Company for such the succeeding fiscal year, setting forth as approved by the Company's Board of Directors; and iii As soon as practicable after the end of each month, and in any event within three weeks after the end of each case in comparative form month, updates to the corresponding figures monthly projected financials for the preceding current fiscal year; monthly projected backlog schedules; monthly updates of significant contracts or accounts; a consolidated balance sheet of the Company and any subsidiaries as of the end of each such month; and consolidated statements of income of the Company and any subsidiaries for such period and for the then current fiscal year to date, all prepared in accordance with generally accepted accounting principles consistently applied (“GAAP”other than for accompanying notes), all such consolidated statements to be duly certified by such independent public accountants of recognized national standing approved by the Board to prepare such reports;
(b) As soon as available and in any event within forty-five (45) days after the end of each of the first three quarters of each fiscal year of the Company, an unaudited balance sheet of the Company and its Subsidiaries, if any, as of the end of such quarter and the related unaudited statements of income and members’ equity and of cash flows of the Company for the period commencing at the end of the previous fiscal year and ending with the end of such quarter, setting forth in each case in comparative form the corresponding figures for the corresponding period of the preceding fiscal year and the budget for such current year, all in reasonable detail and prepared in accordance with GAAP (subject to changes resulting from year-end audit adjustments adjustments, and not including all footnotes thereto that may be required in accordance with GAAP);
(c) Upon request (but not more frequently than signed by the delivery principal financial or accounting officer of the financial statements described in Sections 7.2(aCompany.
c. As long as Investor (together with any partner, member, fund or other affiliates of such Investor) holds not less than 100,000 Shares (as adjusted for any stock dividends, stock splits or similar events), the Company shall permit each such Investor, at such Investor's expense, to visit and inspect the Company's properties, to examine its books of account and records (including Board of Directors and stockholder meeting minutes) and 7.2(b))to discuss the Company's affairs, a statement showing the number of Units of each class finances and series of membership interests (including Profits Interests) and securities convertible into or exercisable for Units outstanding at the end of the applicable period, the Junior Units issuable upon conversion or exercise of any outstanding securities convertible or exercisable for Junior Units and the exchange ratio or exercise price applicable thereto, and the number of Units not yet issued but reserved for issuance under the Equity Incentive Plan, if anyaccounts with its officers, all in sufficient detail as to permit the Preferred Unit Holders to calculate their respective percentage equity ownership in the Company;
(d) As soon as available and in any event within thirty (30) days after the end of each calendar month, a statement of recognized revenue, bookings and retained earnings on a monthly basis, compared against the corresponding figures from at such month from the preceding fiscal year and the budget for such current year; and
(e) Not later than sixty (60) days after December 31 of each year, an annual budget and quarterly and monthly operating budgets for such fiscal year in a form and with such detail reasonable times as may be acceptable requested by such Investor; provided, however, that the Company shall not be obligated pursuant to this Section 3.1(c) to provide access to any information which it reasonably considers to be a majority of the Directorstrade secret or similar confidential information.
Appears in 1 contract
Samples: Investor Rights Agreement (Avesta Technologies Inc)
Financial Information. The Company will Holdings shall furnish to each Major Holder the information set forth in this Section 7.2; provided, that Agent (and the Company shall not be required Agent agrees to furnish such information to a Major Holder if the Board determines in good faith that such Major Holder is a competitor promptly deliver or make available to the Company (provided that in no event shall Kinnevik (or its Affiliates) or Oak (or its Affiliates) be deemed to be a competitor to the Company and that, as of the Effective Date, Walgreens (and its Affiliates) is deemed to not be a competitor to the CompanyLenders):
(a) As as soon as practicable after the end of each fiscal year of the Companyavailable, and but in any event within one hundred fifty not later than ninety (15090) days thereafterafter the close of each Fiscal Year (commencing with the Fiscal Year ending December 31, a copy of the annual 2018), audited financial statements for such fiscal year for the Company and its Subsidiaries, if any, including therein consolidated balance sheets of the Company Consolidated Parties, as at the end of such Fiscal Year, and its Subsidiariesthe related consolidated statements of operations, if anyshareholders’ equity and cash flows, setting forth, in each case, in comparative form the figures for and as of the end of the previous Fiscal Year, plus a customary narrative review for such fiscal year Fiscal Year, fairly presenting in all material respects the financial position and statements the results of income and members’ equity and of cash flows operations of the Company for such fiscal year, setting forth in each case in comparative form Consolidated Parties as at the corresponding figures date thereof and for the preceding fiscal yearFiscal Year then ended, all and prepared in accordance with generally accepted accounting principles consistently applied (“GAAP”), GAAP in all such material respects. Such consolidated statements to shall be duly certified reported on by such independent public accountants of recognized national standing approved by (without a “going concern” or like qualification or exception, or qualification arising out of the Board scope of the audit unless such qualification or exception is solely with respect to, or resulting solely from (x) an upcoming maturity date of any material Indebtedness that is scheduled to prepare occur within one (1) year from the date such reportsreport is delivered or (y) any potential inability to satisfy any financial maintenance covenant included in any Indebtedness of Holdings or any Subsidiary on a future date or in a future period);
(b) As as soon as available and available, but in any event within not later than forty-five (45) days after the end of each of the first three quarters Fiscal Quarters of each fiscal year Fiscal Year (commencing with the Fiscal Quarter ending March 31, 2019), unaudited consolidated balance sheets of the Company, an unaudited balance sheet of the Company and its Subsidiaries, if anyConsolidated Parties, as of at the end of such quarter Fiscal Quarter, and the related unaudited consolidated statements of operations and comprehensive income and members’ equity and of cash flows of the Company Consolidated Parties for such Fiscal Quarter and for the period commencing at from the end beginning of the previous fiscal year and ending with Fiscal Year to the end of such quarterFiscal Quarter, setting forth forth, in each case case, in reasonable detail, in comparative form form, the corresponding figures for and as of the corresponding period of in the preceding fiscal year and the budget for such current yearprior Fiscal Year, all in reasonable detail and prepared in accordance all material respects in conformity with GAAP (GAAP, subject to normal year-end audit adjustments and not including the absence of footnotes and certified by a Responsible Officer of Holdings as being prepared in all footnotes thereto that may be required material respects in accordance conformity with GAAP)GAAP and fairly presenting in all material respects the Consolidated Parties’ financial position as at the dates thereof and their results of operations for the periods then ended, subject to normal year-end adjustments and the absence of footnotes;
(c) Upon request (but not more frequently than concurrently with the delivery of the financial statements described in Sections 7.2(aannual audited Financial Statements pursuant to Section 8.2(a) and 7.2(b)the quarterly Financial Statements pursuant to Section 8.2(b), a statement showing duly completed Compliance Certificate signed by a Responsible Officer of Holdings; and
(d) such additional information as the number Agent on its own behalf or on behalf of Units any Lender (acting through the Agent) may from time to time reasonably request regarding the financial and business affairs of each class and series any Obligor or any of membership interests its Subsidiaries; provided that nothing in this Section 7.2(d) shall require Holdings or its Subsidiaries to disclose any document, information or other matter (including Profits Interestsi) and securities convertible that constitutes non-financial trade secrets or non-financial proprietary information of Holdings or its Subsidiaries, (ii) in respect of which disclosure to the Agent or any Lender (or any of their respective representatives or contractors) is prohibited by applicable Laws, (iii) that is subject to attorney-client or similar privilege or constitutes attorney work product or (iv) in respect of which the Borrower or any of its Subsidiaries owes confidentiality obligations to any third party (provided such confidentiality obligations were not entered into or exercisable for Units outstanding at the end in contemplation of the applicable periodrequirements of this Section 8.2(d)). Documents required to be delivered pursuant to Section 8.2(a) or (b) (to the extent any such documents are included in materials otherwise filed with the SEC) may be delivered electronically and if so delivered, shall be deemed to have been delivered on the Junior Units issuable upon conversion date on which such documents are (i) posted on Holdings’ behalf on an Internet or exercise of any outstanding securities convertible or exercisable for Junior Units and the exchange ratio or exercise price applicable thereto, and the number of Units not yet issued but reserved for issuance under the Equity Incentive Planintranet website, if any, all in sufficient detail as to permit which each Lender and the Preferred Unit Holders Agent have access (whether a commercial, third-party website or whether sponsored by the Agent); or (ii) available on the SEC’s website on the Internet at wxx.xxx.xxx; provided that Holdings shall notify the Agent (which shall notify each Lender) of the posting of any such documents. Holdings and the Borrower hereby acknowledge that (i) the Agent and/or an Arranger may, but shall not be obligated to, make available to calculate their respective percentage equity ownership in the Company;
Lenders materials and/or information provided by or on behalf of Holdings or the Borrower hereunder (dcollectively, “Borrower Materials”) As soon as available by posting the Borrower Materials on IntraLinks, Syndtrak, ClearPar or a substantially similar electronic transmission system (the “Platform”) and in any event within thirty (30b) days after certain of the end of each calendar monthLenders (each, a statement “Public Lender”) may have personnel who do not wish to receive material non-public information with respect to the Borrower or its Affiliates, or the respective securities of recognized revenueany of the foregoing, bookings and retained earnings who may be engaged in investment and other market-related activities with respect to such Persons’ securities. Holdings and the Borrower hereby agree that they will use commercially reasonable efforts to identify that portion of the Borrower Materials that may be distributed to the Public Lenders and that (w) all such Borrower Materials shall be clearly and conspicuously marked “PUBLIC” which, at a minimum, shall mean that the word “PUBLIC” shall appear prominently on the first page thereof; (x) by marking Borrower Materials “PUBLIC,” the Borrower shall be deemed to have authorized the Agent, the Arrangers and the Lenders to treat such Borrower Materials as not containing any material non-public information (although it may be sensitive and proprietary) with respect to the Borrower or its securities for purposes of United States Federal and state securities laws (provided, however, that to the extent such Borrower Materials constitute information relating to Holdings or any of its Subsidiaries, they shall be treated as set forth in Section 15.16); (y) all Borrower Materials marked “PUBLIC” are permitted to be made available through a portion of the Platform designated “Public Side Information;” and (z) the Agent and the Arranger shall be entitled to treat any Borrower Materials that are not marked “PUBLIC” as being suitable only for posting on a monthly basis, compared against the corresponding figures from such month from the preceding fiscal year and the budget for such current year; and
(e) Not later than sixty (60) days after December 31 of each year, an annual budget and quarterly and monthly operating budgets for such fiscal year in a form and with such detail as may be acceptable to a majority portion of the DirectorsPlatform not designated “Public Side Information.”
Appears in 1 contract
Samples: Amendment and Restatement Agreement (United Rentals North America Inc)
Financial Information. The Company Parent Guarantor and the Borrowers shall promptly furnish to each Lender all such financial information regarding any Credit Party or any of their Subsidiaries as the Administrative Agent or the UK Agent shall reasonably request. Without limiting the foregoing, the Borrowers will furnish to each Major Holder the information set forth Administrative Agent and the UK Agent, in this Section 7.2; provided, that sufficient copies for distribution by the Company shall not be required to furnish such information to a Major Holder if Administrative Agent and the Board determines in good faith that such Major Holder is a competitor to the Company (provided that in no event shall Kinnevik (or its Affiliates) or Oak (or its Affiliates) be deemed to be a competitor to the Company and thatUK Agent, as of applicable, to each Lender, in such detail as the Effective DateAdministrative Agent, Walgreens (and its Affiliates) is deemed to not be a competitor to the Company):UK Agent or the Lenders shall reasonably request, the following:
(a) As soon as practicable available, but in any event not later than ninety (90) days after the end of each fiscal year of the CompanyFiscal Year (except as set forth in clause (v) below), (i) consolidated audited balance sheets, income statements, cash flow statements and changes in stockholders’ equity for Mobile Services and its consolidated Subsidiaries for such Fiscal Year, and the accompanying notes thereto, (ii) consolidating unaudited balance sheets, income statements and cash flow statements for Mobile Services and its consolidated Subsidiaries, (iii) unaudited balance sheets and income statements for Mobile Services and its consolidated US Subsidiaries, (iv) unaudited balance sheets and income statements for Ravenstock and its consolidated Subsidiaries and (v) balance sheets and income statements for Ravenstock and its consolidated Subsidiaries audited in accordance with UK GAAP and to be delivered as soon as available, but in any event within not later than one hundred fifty and eighty (150180) days thereafter, a copy of the annual audited financial statements for such fiscal year for the Company and its Subsidiaries, if any, including therein balance sheets of the Company and its Subsidiaries, if any, as of after the end of such fiscal year and statements of income and members’ equity and of cash flows of the Company for such fiscal yeareach Fiscal Year, setting forth in the case of each case of the preceding clauses (i), (iii), (iv) and (v), in comparative form the corresponding form, figures for the preceding fiscal yearprevious Fiscal Year, all in reasonable detail, fairly presenting the financial position and the results of operations of the applicable Persons as at the date thereof and for the Fiscal Year then ended, prepared in accordance with GAAP (other than the absence of footnotes to the Financial Statements delivered pursuant to clauses (ii), (iii) and (iv) and other than clause (v) which has been prepared in accordance with UK GAAP) and denominated in Dollars (other than with respect to clauses (iv) and (v), which Financial Statements shall be denominated in Pounds Sterling). The consolidated audited financial statements shall be examined in accordance with generally accepted accounting principles consistently applied (“GAAP”)auditing standards by and, all in the case of such statements performed on a consolidated statements to be duly basis, accompanied by a report thereon unqualified in any respect of independent certified public accountants of national standing in the United States selected by the US Borrower Representative. The US Borrower Representative, simultaneously with retaining such independent public accountants to conduct such annual audit, shall send a letter to such accountants, with a copy to the Administrative Agent, the UK Agent and the Lenders, notifying such accountants that one of recognized national standing approved the primary purposes for retaining such accountants’ services and having audited financial statements prepared by them is for use by the Board Administrative Agent, the UK Agent and the Lenders. At reasonable times and upon reasonable advance notice and the provision of an opportunity for the UK Borrower to prepare such reports;participate or accompany the UK Agent and/or the Administrative Agent, the UK Borrower hereby authorizes the Administrative Agent and the UK Agent to communicate directly with the UK Borrower’s certified public accountants and, by this provision, authorizes those accountants to disclose to the Administrative Agent and the UK Agent any and all financial statements and other supporting financial documents and schedules relating to the Credit Parties and their Subsidiaries and to discuss directly with the Administrative Agent and the UK Agent the finances and affairs of the Credit Parties and their Subsidiaries.
(b) As soon as available and available, but in any event within forty-five not later than forty (4540) days after the end of each of the first three quarters of each fiscal year of the CompanyFiscal Quarter, an (i) consolidated unaudited balance sheet sheets of the Company Mobile Services and its Subsidiaries, if any, consolidated Subsidiaries as of at the end of such quarter Fiscal Quarter, and the related consolidated unaudited income statements of income and members’ equity cash flow statements for Mobile Services and of cash flows of the Company its consolidated Subsidiaries for such Fiscal Quarter and for the period commencing at from the end beginning of the previous fiscal year and ending with Fiscal Year to the end of such quarterFiscal Quarter, setting forth all in reasonable detail, fairly presenting the financial position and results of operations of Mobile Services and its consolidated Subsidiaries as at the date thereof and for such periods, and, in each case case, in comparative form the corresponding comparable form, figures for the corresponding period in the prior Fiscal Year, (ii) consolidating unaudited balance sheets and income statements for Mobile Services and its consolidated Subsidiaries, (iii) unaudited balance sheets and income statements for Mobile Services and its consolidated US Subsidiaries and (iv) unaudited balance sheets and income statements for Ravenstock and its consolidated Subsidiaries, in each case prepared in accordance with UK GAAP (other than the absence of footnotes and subject to normal year-end audit adjustments) applied consistently with the preceding fiscal year audited Financial Statements required to be delivered pursuant to Section 5.2(a) and the budget for denominated in Dollars (other than with respect to clause (iv), which Financial Statements shall be denominated in Pounds Sterling). Mobile Services shall certify by a certificate signed by its chief financial officer that all such current year, all in reasonable detail and statements have been prepared in accordance with GAAP (other than the absence of footnotes and subject to normal year-end audit adjustments adjustments) and not including all footnotes thereto that may be required in accordance with GAAP);fairly present the financial position of the applicable Credit Parties and their Subsidiaries as at the dates thereof and their results of operations for the periods then ended, subject to normal year-end adjustments.
(c) Upon request (but not more frequently than the delivery of the financial statements described in Sections 7.2(a) and 7.2(b)), a statement showing the number of Units of each class and series of membership interests (including Profits Interests) and securities convertible into or exercisable for Units outstanding at the end of the applicable period, the Junior Units issuable upon conversion or exercise of any outstanding securities convertible or exercisable for Junior Units and the exchange ratio or exercise price applicable thereto, and the number of Units not yet issued but reserved for issuance under the Equity Incentive Plan, if any, all in sufficient detail as to permit the Preferred Unit Holders to calculate their respective percentage equity ownership in the Company;
(d) As soon as available and available, but in any event within not later than thirty (30) days after the end of each calendar month, (i) unaudited balance sheets and income statements for Mobile Services and its consolidated US Subsidiaries and (ii) unaudited balance sheets and income statements for Ravenstock and its consolidated Subsidiaries, in each case prepared in accordance with UK GAAP (other than the absence of footnotes and subject to normal year-end audit adjustments) applied consistently with the audited Financial Statements required to be delivered pursuant to Section 5.2(a) and denominated in Dollars (other than with respect to clause (ii), which such Financial Statements shall be denominated in Pounds Sterling). Mobile Services shall certify by a statement certificate signed by its chief financial officer that all such statements have been prepared in accordance with GAAP or UK GAAP, if applicable (other than the absence of recognized revenuefootnotes and subject to normal year-end audit adjustments) and present fairly the financial position of the applicable Credit Parties and their Subsidiaries as at the dates thereof and their results of operations for the periods then ended, bookings and retained earnings on a monthly basissubject to normal year-end adjustments.
(d) With each of the annual audited Financial Statements delivered pursuant to Section 5.2(a), compared against the corresponding figures from such month from the preceding fiscal year and the budget unaudited Financial Statements delivered pursuant to Section 5.2(b), a certificate of the chief financial officer of the US Borrower Representative (the “Compliance Certificate”) setting forth in reasonable detail the calculations required to establish that the Credit Parties were in compliance with the covenants set forth in Sections 7.23 through 7.26 during the period covered in such Financial Statements and as at the end thereof and a calculation of Pro Forma EBITDA for the Permitted Acquisitions completed during such period, and stating that, except as explained in reasonable detail in such certificate, (A) all of the representations and warranties of the Credit Parties contained in this Agreement and the other Loan Documents are correct and complete in all material respects as at the date of such certificate as if made at such time, except for those that speak as of a particular date, (B) the Credit Parties are, at the date of such certificate, in compliance in all material respects with all of their respective covenants and agreements in this Agreement and the other Loan Documents, and (C) no Default or Event of Default then exists or existed during the period covered by the Financial Statements for such current year; andperiod. If such certificate discloses that a representation or warranty is not correct or complete, or that a covenant has not been complied with, or that a Default or Event of Default existed or exists, such certificate shall set forth what action the Applicable Borrower has taken or proposes to take with respect thereto.
(e) Not later No sooner than sixty (60) days after December 31 before and not later than the beginning of each yearFiscal Year, an (i) annual budget forecasts (to include forecasted consolidated balance sheets, income statements and quarterly cash flow statements) for Mobile Services and monthly operating budgets its consolidated Subsidiaries, (ii) annual forecasted income statements for Mobile Services and its consolidated US Subsidiaries and (iii) annual forecasted income statements for Ravenstock and its consolidated Subsidiaries, in each case, as at the end of and for each Fiscal Quarter of such Fiscal Year approved by the board of directors of such entity and in detail reasonably acceptable to the Administrative Agent and the UK Agent.
(f) [Intentionally Omitted].
(g) Promptly upon the filing thereof, copies of all reports, if any, to or other documents filed by any Credit Party or any of its Subsidiaries with the Securities and Exchange Commission under the Exchange Act, and all reports, notices, or statements sent or received by any Credit Party or any of its Subsidiaries to or from the holders of any publicly traded equity interests of the any Credit Party or any such Subsidiary (other than routine non-material correspondence) or of any Debt of any Credit Party or any of its Subsidiaries, including, Debt registered under the Securities Act, or to or from the trustee (other than routine, non-material correspondence) under any indenture under which the same is issued.
(h) As soon as available, but in any event not later than 15 days after any Credit Party’s receipt thereof, a copy of all management reports and management letters prepared for such fiscal year Credit Party by any independent certified public accountants of any Credit Party or any of its Subsidiaries.
(i) Promptly after their preparation, copies of any and all proxy statements, financial statements, and reports which any Credit Party or any of its Subsidiaries makes available to its shareholders generally.
(j) If requested by the Administrative Agent or the UK Agent, promptly after filing with the IRS or any other Governmental Authority, a copy of each tax return filed by any Credit Party or by any of its Subsidiaries.
(k) As soon as available, but in any event within twenty (20) days after the end of each month (for such month), a Borrowing Base Certificate in the form of Exhibit B to this Agreement for the UK Borrower and all supporting information required in accordance with such detail as may be acceptable to a majority Section 9 of the DirectorsSecurity Agreement and Section 4.4(c) of the UK Debenture.
(l) With each of the monthly Financial Statements delivered pursuant to Section 5.2(c), a certificate of the chief financial officer of the US Borrower Representative (the “M&E Disposition Certificate”) setting forth for the most recently completed month in reasonable detail: (i) the nature, equipment identification number and net book value of Eligible Machinery and Equipment that was sold, exchanged or otherwise disposed pursuant to Section 7.9(c) hereof, both individually and in the aggregate, (ii) the amount of proceeds, if any, received in respect of any such sale, exchange or other disposition of Eligible Machinery and Equipment, both individually and in the aggregate and (iii) the purchase price paid, if any, in respect of any Eligible Machinery and Equipment that was purchased, acquired or otherwise received in exchange for any Eligible Machinery and Equipment that was sold, exchanged or otherwise disposed pursuant to Section 7.9(c) hereof, both individually and in the aggregate.
(m) Such additional information as the Administrative Agent or the UK Agent may from time to time reasonably request regarding the financial and business affairs of any Credit Party or any of its Subsidiaries.
Appears in 1 contract
Financial Information. The Company Voxware hereby covenants and agrees it will furnish the following reports to each Major Holder the information set forth in this Section 7.2; provided, that the Company shall not be required to furnish such information to a Major Holder if the Board determines in good faith that such Major Holder is a competitor to the Company (provided that in no event shall Kinnevik (or its Affiliates) or Oak (or its Affiliates) be deemed to be a competitor to the Company and that, as of the Effective Date, Walgreens (and its Affiliates) is deemed to not be a competitor to the Company):Investor:
(a) As soon as practicable after the end of each fiscal year of the CompanyVoxware, and in any event within one hundred fifty ninety (15090) days thereafter, a copy consolidated balance sheet of the annual audited financial statements for such fiscal year for the Company Voxware and its Subsidiaries, if any, including therein balance sheets of the Company and its Subsidiariessubsidiaries, if any, as of at the end of such fiscal year year, and consolidated statements of income and members’ equity and of cash flows of the Company Voxware and its subsidiaries, if any, for such fiscal year, setting forth in each case in comparative form the corresponding figures for the preceding fiscal year, all prepared in accordance with generally accepted accounting principles consistently applied and setting forth in each case in comparative form the figures for the previous fiscal year (“GAAP”if any), all such consolidated statements to be duly certified in reasonable detail and audited by such independent public accountants of recognized national standing approved selected by the Board to prepare such reports;Voxware.
(b) As soon as available and in any event within forty-five (45) days practicable after the end of each quarter, but in any event within 45 days of the first three quarters end of each fiscal year of the Companyquarter, an unaudited a consolidated balance sheet of the Company Voxware and its Subsidiariessubsidiaries, if any, as of the end of each such quarter quarter, and the related unaudited consolidated statements of income and members’ equity and of cash flows of the Company Voxware and its subsidiaries for such period and for the period commencing at current fiscal year to date, prepared in accordance with generally accepted accounting principles consistently applied and setting forth in comparative form the end figures for the corresponding periods of the previous fiscal year and ending with the (if any), subject to changes resulting from normal year-end of such quarter, setting forth in each case in comparative form the corresponding figures for the corresponding period of the preceding fiscal year and the budget for such current yearaudit adjustments, all in reasonable detail and prepared in accordance with GAAP (subject to year-end audit adjustments and certified by the principal financial or accounting officer of Voxware, except that such financial statements need not including all footnotes thereto that may be contain the notes required in accordance with GAAP);by generally accepted accounting principles.
(c) Upon request (but not more frequently than the delivery of the financial statements described in Sections 7.2(a) and 7.2(b)), a statement showing the number of Units of each class and series of membership interests (including Profits Interests) and securities convertible into or exercisable for Units outstanding at the end of the applicable period, the Junior Units issuable upon conversion or exercise of any outstanding securities convertible or exercisable for Junior Units and the exchange ratio or exercise price applicable thereto, and the number of Units not yet issued but reserved for issuance under the Equity Incentive Plan, if any, all in sufficient detail as to permit the Preferred Unit Holders to calculate their respective percentage equity ownership in the Company;
(d) As soon as available practicable after transmission or occurrence and in any event within thirty ten (3010) days after thereof, copies of any reports or communications delivered to any class of Voxware's security holders or broadly to the end financial community, including any filings by Voxware with any securities exchange, the Securities and Exchange Commission or the National Association of each calendar monthSecurities Dealers, a statement of recognized revenue, bookings and retained earnings on a monthly basis, compared against the corresponding figures from such month from the preceding fiscal year and the budget for such current year; and
(e) Not later than sixty (60) days after December 31 of each year, an annual budget and quarterly and monthly operating budgets for such fiscal year in a form and with such detail as may be acceptable to a majority of the Directors.Inc.
Appears in 1 contract
Samples: Shareholders Agreement (Voxware Inc)
Financial Information. The Company will shall furnish to each Major Holder the information set forth in this Section 7.2; provided, that Agent (and the Company shall not be required Agent agrees to furnish such information to a Major Holder if the Board determines in good faith that such Major Holder is a competitor promptly deliver or make available to the Company (provided that in no event shall Kinnevik (or its Affiliates) or Oak (or its Affiliates) be deemed to be a competitor to the Company and that, as of the Effective Date, Walgreens (and its Affiliates) is deemed to not be a competitor to the CompanyLenders):
(a) As soon as practicable available, but in any event not later than the fifth Business Day after the 105th day following the end of each fiscal year Fiscal Year of the Company, and in any event within one hundred fifty Company (150) days thereafter, a copy of or such longer period as may be permitted by the annual audited financial statements for such fiscal year SEC for the Company and its Subsidiariesfiling of annual reports on Form 10-K) (commencing with the Fiscal Year ending December 31, if any2019), including therein audited consolidated balance sheets of the Company Consolidated Parties, as at the end of such Fiscal Year, and its Subsidiariesthe related consolidated statements of operations, if anyshareholders’ equity and cash flows, setting forth, in each case, in comparative form the figures for and as of the end of the previous Fiscal Year, plus a customary narrative review for such fiscal year Fiscal Year, fairly presenting in all material respects the financial position and statements the results of income and members’ equity and of cash flows operations of the Company for such fiscal year, setting forth in each case in comparative form Consolidated Parties as at the corresponding figures date thereof and for the preceding fiscal yearFiscal Year then ended, all and prepared in accordance with generally accepted accounting principles consistently applied (“GAAP”), GAAP in all such material respects. Such consolidated statements to shall be duly certified reported on by such independent public accountants of recognized national standing approved by (without a “going concern” or like qualification or exception, or qualification arising out of the Board scope of the audit unless such qualification or exception is solely with respect to, or resulting solely from, (i) an upcoming maturity date of any material Indebtedness that is scheduled to prepare occur within one year from the date such reportsreport is delivered or (ii) any potential inability to satisfy any financial maintenance covenant included in any Indebtedness of the Company or any Subsidiary on a future date or in a future period);
(b) As soon as available and available, but in any event within forty-five (45) days not later than the fifth Business Day after the 50th day following the end of each of the first three quarters Fiscal Quarters of each fiscal year of the Company, an unaudited balance sheet Fiscal Year of the Company and its Subsidiaries(or such longer period as may be permitted by the SEC for the filing of quarterly reports on Form 10-Q) (commencing with the Fiscal Quarter ending June 30, if any2019), unaudited consolidated balance sheets of the Consolidated Parties, as of at the end of such quarter Fiscal Quarter, and the related unaudited consolidated statements of operations and comprehensive income and members’ equity and of cash flows of the Company Consolidated Parties for such Fiscal Quarter and for the period commencing at from the end beginning of the previous fiscal year and ending with Fiscal Year to the end of such quarterFiscal Quarter, setting forth forth, in each case case, in reasonable detail, in comparative form form, the corresponding figures for and as of the corresponding period of in the preceding fiscal year and the budget for such current yearprior Fiscal Year, all in reasonable detail and prepared in accordance all material respects in conformity with GAAP (GAAP, subject to normal year-end audit adjustments and not including the absence of footnotes and certified by a Responsible Officer of the Company as being prepared in all footnotes thereto that may be required material respects in accordance conformity with GAAP)GAAP and fairly presenting in all material respects the Consolidated Parties’ financial position as at the dates thereof and their results of operations for the periods then ended, subject to normal year¬end adjustments and the absence of footnotes;
(c) Upon request (As soon as available, but in any event not more frequently later than the delivery fifth Business Day after the 105th day following the end of each Fiscal Year of the financial Company, annual forecasts (to include forecasted consolidated balance sheets, and the related forecasted consolidated statements described in Sections 7.2(aof operations and cash flows, U.S. Borrowing Base, Canadian Borrowing Base, Excess Availability, U.S. Excess Availability and Multicurrency Excess Availability projections) and 7.2(b)), a statement showing for the number of Units of each class and series of membership interests (including Profits Interests) and securities convertible into or exercisable for Units outstanding Consolidated Parties as at the end of the applicable period, the Junior Units issuable upon conversion or exercise and for each fiscal quarter of any outstanding securities convertible or exercisable for Junior Units and the exchange ratio or exercise price applicable thereto, and the number of Units not yet issued but reserved for issuance under the Equity Incentive Plan, if any, all in sufficient detail as to permit the Preferred Unit Holders to calculate their respective percentage equity ownership in the Companysuch Fiscal Year;
(d) As soon as available Concurrently with the delivery of the annual audited Financial Statements pursuant to Section 7.2(a) and in any event within thirty (30) days after the end of each calendar monthquarterly Financial Statements pursuant to Section 7.2(b), a statement duly completed Compliance Certificate signed by a Responsible Officer of recognized revenue, bookings and retained earnings on a monthly basis, compared against the corresponding figures from such month from the preceding fiscal year and the budget for such current yearCompany; and
(e) Not later than sixty Such additional information as the Agent on its own behalf or on behalf of any Lender (60acting through the Agent) days after December 31 may from time to time reasonably request regarding the financial and business affairs of each year, an annual budget and quarterly and monthly operating budgets for any Obligor or any of its Subsidiaries. Documents required to be delivered pursuant to Section 7.2(a) or (b) (to the extent any such fiscal year documents are included in a form and materials otherwise filed with such detail as the SEC) may be acceptable delivered electronically and if so delivered, shall be deemed to have been delivered on the date on which such documents are (i) posted on the Company’s behalf on an Internet or intranet website, if any, to which each Lender and the Agent have access (whether a majority commercial, third-party website or whether sponsored by the Agent); or (ii) available on the SEC’s website on the Internet at xxx.xxx.xxx; provided that the Company shall notify the Agent (which shall notify each Lender) of the Directorsposting of any such documents.
Appears in 1 contract
Samples: Credit Agreement (Herc Holdings Inc)
Financial Information. The Company will furnish to each Major Holder the information set forth in this Section 7.2; provided, that the Company shall not be required to furnish such information to a Major Holder if the Board determines in good faith that such Major Holder is a competitor to the Company (provided that in no event shall Kinnevik (or its Affiliates) or Oak (or its Affiliates) be deemed to be a competitor to the Company and that, as of the Effective Date, Walgreens (and its Affiliates) is deemed to not be a competitor to the Company):
(a) As soon as practicable after the end of each fiscal year of the CompanyThe Borrower will, and in any event within one hundred fifty (150will cause each Subsidiary other than the Subsidiaries listed on Schedule 5.03(a) days thereafterto, a copy keep its books of the annual audited financial statements for such fiscal year for the Company and its Subsidiaries, if any, including therein balance sheets of the Company and its Subsidiaries, if any, as of the end of such fiscal year and statements of income and members’ equity and of cash flows of the Company for such fiscal year, setting forth in each case in comparative form the corresponding figures for the preceding fiscal year, all prepared account in accordance with generally accepted accounting principles consistently applied (“U.S. GAAP”), all such consolidated statements to be duly certified by such independent public accountants of recognized national standing approved by the Board to prepare such reports;.
(b) As The Borrower will (subject to the last paragraph of this Section 5.03) furnish to the Administrative Agent for distribution to the Banks:
(i) as soon as available and in any event within forty-five (45) 60 days after the end close of each of the first three quarters of each fiscal year of the Company, an unaudited balance sheet of the Company and its Subsidiaries, if anyBorrower, as of at the end of such quarter of, and the related unaudited statements of income and members’ equity and of cash flows of the Company for the period commencing at the end of the previous fiscal year and ending with with, such quarter, unaudited consolidated balance sheets of the Borrower and its Consolidated Entities and the related unaudited consolidated statements of operations, changes in equity and cash flow of the Borrower and its Consolidated Entities for such quarter and for the portion of the Borrower’s fiscal year ended at the end of such quarter, setting forth in each case in comparative form the corresponding figures for the corresponding period quarter and the corresponding portion of the preceding Borrower’s previous fiscal year and the budget for such current year, all in reasonable detail and prepared certified (subject to normal year-end adjustments) as to fairness of presentation in accordance with U.S. GAAP in all material respects and consistency (subject to yearexcept for changes concurred in by the Borrower’s independent public accountants) by the Chief Executive Officer, the Chief Financial Officer, an Assistant Secretary-end audit adjustments and not including all footnotes thereto that may be required in accordance with GAAP)Treasurer or the Controller of the Borrower;
(cii) Upon request (but not more frequently than the delivery of the financial statements described in Sections 7.2(a) and 7.2(b)), a statement showing the number of Units of each class and series of membership interests (including Profits Interests) and securities convertible into or exercisable for Units outstanding at the end of the applicable period, the Junior Units issuable upon conversion or exercise of any outstanding securities convertible or exercisable for Junior Units and the exchange ratio or exercise price applicable thereto, and the number of Units not yet issued but reserved for issuance under the Equity Incentive Plan, if any, all in sufficient detail as to permit the Preferred Unit Holders to calculate their respective percentage equity ownership in the Company;
(d) As soon as available practicable and in any event within thirty the earlier of (30i) two Domestic Business Days after filing with the Securities and Exchange Commission and (ii) 120 days after the close of each fiscal year of the Borrower, as at the end of each calendar monthand for the fiscal year just closed, consolidated balance sheets of the Borrower and its Consolidated Entities and the related consolidated statements of operations, changes in equity and cash flow for such fiscal year for the Borrower and its Consolidated Entities, all in reasonable detail and certified (without any qualification as to the scope of the audit) by KPMG LLP or other independent public accountants of nationally recognized standing selected by the Borrower, who shall have audited the books and accounts of the Borrower for such fiscal year;
(iii) with reasonable promptness, copies of all regular and periodical reports (including Current Reports on Form 8-K) filed with, or furnished to, the Securities and Exchange Commission;
(iv) promptly after the public announcement of, or promptly after receiving a written notice of, a statement change (whether an increase or decrease) in any rating issued by either S&P, Moody’s or Fitch, solely to the extent that the Borrower is then under an existing contract with such agency for the provision of recognized revenueratings information pertaining to any securities of, bookings and retained earnings on or guaranteed by, the Borrower or any of its Subsidiaries or affiliates, a monthly basis, compared against the corresponding figures from notice setting forth such month from the preceding fiscal year and the budget for such current yearchange; and
(ev) Not later than sixty with reasonable promptness, such other information respecting the business, operations and financial condition of the Borrower or any of its Subsidiaries or any Joint Venture as any Bank may, from time to time, reasonably request, including, without limitation, with respect to the performance and observance by the Borrower of the covenants and conditions contained in this Agreement. Reports or financial information required to be delivered pursuant to clauses (60b)(i), (b)(ii) days after December 31 and (b)(iii) of each year, an annual budget and quarterly and monthly operating budgets for this Section 5.03 shall be deemed to have been delivered on the date on which the Borrower posts such fiscal year in a form and with reports or financial information on the Borrower’s website (xxx.xxxxxx.xxx) or at such detail other website as may be acceptable notified to a majority the Administrative Agent and the Banks or when such reports or financial information are posted on the SEC’s website at xxx.xxx.xxx; provided, that the Borrower shall notify the Administrative Agent of any such posting; and provided further that the Borrower shall deliver paper copies of the Directorsreports or financial information required to be delivered pursuant to clauses (b)(i), (b)(ii) and (b)(iii) of this Section 5.03 to the Administrative Agent, if so requested by any Bank to the Administrative Agent, until written notice to cease delivering such paper copies is given by such Bank to the Administrative Agent.
Appears in 1 contract
Samples: Revolving Credit Agreement (National Rural Utilities Cooperative Finance Corp /Dc/)
Financial Information. The Company will furnish the following reports --------------------- to each Major Holder owning at least 150,000 shares of Registrable Securities (for purposes of calculating the information set forth in ownership of any Holder under this Section 7.2; provided2, Registrable Securities owned by any entity that is, within the Company meaning of the Securities Act, controlling, controlled by or under common control with such Holder shall not be required to furnish aggregated with Registrable Securities owned by such information to a Major Holder if the Board determines in good faith that such Major Holder is a competitor to the Company (provided that in no event shall Kinnevik (or its Affiliates) or Oak (or its Affiliates) be deemed to be a competitor to the Company and thatHolder), as of presently constituted and subject to subsequent adjustment for stock splits, stock dividends, reverse stock splits and the Effective Datelike (each, Walgreens (and its Affiliates) is deemed to not be a competitor to the Company"Significant Holder"):
(a) As soon as practicable after the end of each fiscal year (beginning with the fiscal year ending December 31, 1999) of the Company, and in any event within one hundred fifty ninety (15090) days thereafter, a copy of the annual an audited financial statements for such fiscal year for the Company and its Subsidiaries, if any, including therein consolidated balance sheets sheet of the Company and its Subsidiariessubsidiaries, if any, as of at the end of such fiscal year year, and audited consolidated statements of income and members’ equity and of cash flows of the Company and its subsidiaries, if any, for such fiscal year, setting forth in each case in comparative form the corresponding figures for the preceding fiscal year, all prepared in accordance with generally accepted accounting principles consistently applied (“GAAP”)applied, all such consolidated statements to be duly certified in reasonable detail and prepared by such independent public accountants of nationally recognized national standing approved by the Board to prepare such reportsstanding;
(b) At least thirty (30) days prior to the end of each fiscal year of the Company, an annual operating budget and updated business plan of the Company; and
(c) As soon as available practicable after the end of the first, second, and third quarterly accounting periods in each fiscal year of the Company, and in any event within forty-five (45) days after the end of each of the first three quarters of each fiscal year of the Companythereafter, an unaudited consolidated balance sheet of the Company and its Subsidiariessubsidiaries, if any, as of the end of each such quarter quarterly period, and the related unaudited consolidated statements of income and members’ equity and of cash flows of the Company and its subsidiaries for such period and for the period commencing at the end of the previous current fiscal year and ending to date, prepared in accordance with the generally accepted accounting principles consistently applied, subject to changes resulting from normal year-end of such quarter, setting forth in each case in comparative form the corresponding figures for the corresponding period of the preceding fiscal year and the budget for such current yearaudit adjustments, all in reasonable detail and prepared in accordance with GAAP (subject to year-end audit adjustments and not including all footnotes thereto that may be required in accordance with GAAP);
(c) Upon request (but not more frequently than certified by the delivery principal financial or accounting officer of the Company, except that such financial statements described in Sections 7.2(a) and 7.2(b)), a statement showing need not contain the number of Units of each class and series of membership interests (including Profits Interests) and securities convertible into or exercisable for Units outstanding at the end of the applicable period, the Junior Units issuable upon conversion or exercise of any outstanding securities convertible or exercisable for Junior Units and the exchange ratio or exercise price applicable thereto, and the number of Units not yet issued but reserved for issuance under the Equity Incentive Plan, if any, all in sufficient detail as to permit the Preferred Unit Holders to calculate their respective percentage equity ownership in the Company;
(d) As soon as available and in any event within thirty (30) days after the end of each calendar month, a statement of recognized revenue, bookings and retained earnings on a monthly basis, compared against the corresponding figures from such month from the preceding fiscal year and the budget for such current year; and
(e) Not later than sixty (60) days after December 31 of each year, an annual budget and quarterly and monthly operating budgets for such fiscal year in a form and with such detail as may be acceptable to a majority of the Directorsnotes required by generally accepted accounting principles.
Appears in 1 contract
Samples: Investors' Rights Agreement (Applied Science Fiction Inc)
Financial Information. The Company will furnish 1. Except to each Major Holder the extent such materials are available to the public through the SEC’s Electronic Data Gathering, Analysis, and Retrieval system (also known as “EXXXX”) or its Interactive Data Electronic Applications information set forth in this Section 7.2; providedportal (also known as “IDEA”) or through Bloomberg (or other similar financial information service provider) at the relevant time, that the Company shall not be required agrees to furnish such information to a Major Holder if the Board determines in good faith that such Major Holder is a competitor provide to the Company (provided that in no event shall Kinnevik (or its Affiliates) or Oak (or its Affiliates) be deemed to be a competitor to the Company and that, as of the Effective Date, Walgreens (and its Affiliates) is deemed to not be a competitor to the Company):Investors:
(ai) As as soon as practicable practicable, but in any event within one hundred and twenty (120) days after the end of each fiscal year of the Company, consolidated and in any event within one hundred fifty (150) days thereafter, a copy consolidating income statements and statements of the annual audited financial statements for such fiscal year cash flows for the Company and its Subsidiaries, if any, including therein Subsidiaries for such fiscal year and consolidated and consolidating balance sheets of and accounts receivable aging reports for the Company and its Subsidiaries, if any, Subsidiaries as of the end of such fiscal year and statements of income and members’ equity and of cash flows of the Company for such fiscal year, setting forth in each case in comparative form comparisons to the corresponding figures for Annual Budget and to the preceding fiscal year, all prepared in accordance with generally accepted accounting principles U.S. GAAP, consistently applied (“GAAP”)applied, all such consolidated statements to be duly and audited and certified by the Company’s auditors and accompanied by a copy of such independent public accountants of recognized national standing approved by auditing firm’s annual management letter to the Board to prepare such reportsBoard;
(bii) As as soon as available and practicable, but in any event within forty-five (45) days after the end of each fiscal quarter, unaudited financial statements of the first three quarters Company and its Subsidiaries for such fiscal quarter, including unaudited consolidated and consolidating balance sheets of the Company and its Subsidiaries as at the end of such fiscal quarter and the related consolidated and consolidating statements of income and cash flows for such fiscal quarter and for the period from the beginning of the then-current fiscal year to the end of such fiscal quarter, setting forth in each case comparisons to the Annual Budget and to the corresponding period in the preceding fiscal year, all prepared in accordance with U.S. GAAP, consistently applied, subject to changes resulting from audit and normal year-end adjustments made in accordance with U.S. GAAP, consistently applied;
(iii) as soon as practicable, but in any event within fourteen (14) days after the end of each monthly accounting period in each fiscal year, unaudited financial statements of the Company and its Subsidiaries for such monthly period, including unaudited consolidated and consolidating required balance sheet items of the Company and its Subsidiaries as at the end of such monthly period and the related consolidated and consolidating management accounts, required cash flow items and statements of income for such monthly period and for the period from the beginning of the then-current fiscal year to the end of such monthly period, setting forth in each case comparisons to the Annual Budget and to the corresponding period in the preceding fiscal year, all prepared in accordance with U.S. GAAP, consistently applied, subject to changes resulting from audit and normal year-end adjustments made in accordance with U.S. GAAP, consistently applied;
(iv) within thirty (30) days prior to the beginning of each fiscal year of the Company, an unaudited balance sheet Annual Budget in respect of such upcoming fiscal year, to be approved by the Board;
(v) promptly upon receipt thereof, any additional reports, management letters or other detailed information concerning significant aspects of the Company’s or its Subsidiaries’ operations or financial affairs given to the Company by its independent accountants (and not otherwise contained in other materials provided hereunder);
(vi) as soon as available, copies of any communications, or reports or statements furnished to or filed by the Company (other than such information covered under sub clauses (i), (ii) and (iii) above), with the SEC or any securities exchange on which any class of Equity Securities of the Company may be listed;
(vii) promptly (but in any event within five Business Days) after the discovery or receipt of notice of any Event of Default (as such term is defined in its respective 2019 Note), any default under any material agreement to which it or any of its Subsidiaries is a party, any condition or event which is reasonably likely to result in any material adverse effect affecting the Company or any Subsidiary (including, without limitation, the filing of any material litigation against the Company or any Subsidiary or the existence of any dispute with any Person which involves a reasonable likelihood of such litigation being commenced), a certificate from an officer of the Company specifying the nature and period of existence thereof and what actions the Company and its Subsidiaries, if any, as of the end of such quarter Subsidiaries have taken and the related unaudited statements of income and members’ equity and of cash flows of the Company for the period commencing at the end of the previous fiscal year and ending propose to take with the end of such quarter, setting forth in each case in comparative form the corresponding figures for the corresponding period of the preceding fiscal year and the budget for such current year, all in reasonable detail and prepared in accordance with GAAP (subject to year-end audit adjustments and not including all footnotes thereto that may be required in accordance with GAAP);
(c) Upon request (but not more frequently than the delivery of the financial statements described in Sections 7.2(a) and 7.2(b)), a statement showing the number of Units of each class and series of membership interests (including Profits Interests) and securities convertible into or exercisable for Units outstanding at the end of the applicable period, the Junior Units issuable upon conversion or exercise of any outstanding securities convertible or exercisable for Junior Units and the exchange ratio or exercise price applicable respect thereto, and the number of Units not yet issued but reserved for issuance under the Equity Incentive Plan, if any, all in sufficient detail as to permit the Preferred Unit Holders to calculate their respective percentage equity ownership in the Company;
(d) As soon as available and in any event within thirty (30) days after the end of each calendar month, a statement of recognized revenue, bookings and retained earnings on a monthly basis, compared against the corresponding figures from such month from the preceding fiscal year and the budget for such current year; and
(eviii) Not later than sixty (60) days after December 31 of each yearas soon as practicable, an annual budget such other information and quarterly financial data concerning the Company and monthly operating budgets for such fiscal year in a form and with such detail its Subsidiaries as the Investors may be acceptable to a majority of the Directorsreasonably request.
Appears in 1 contract
Financial Information. (a) The Company will make and keep books, records and accounts, which, in reasonable detail, accurately and fairly reflect the transactions and dispositions of its assets, and devise and maintain a system of internal accounting controls sufficient to provide reasonable assurances that (i) transactions are executed in accordance with management's general or specific authorization, (ii) transactions are recorded as necessary to permit preparation of financial statements in conformity with generally accepted accounting principles or any other criteria applicable to such statements and to maintain accountability for assets, (iii) access to assets is permitted only in accordance with management's general or specific authorization, and (iv) the recorded accountability for assets is compared with the existing assets at reasonable intervals and appropriate action is taken with respect to any differences.
(b) The Company will furnish to each Major Holder the information set forth in this Section 7.2; provided, that the Company shall not be required to furnish such information to a Major Holder if the Board determines in good faith that such Major Holder is a competitor following reports to the Company (provided that in no event shall Kinnevik (or its Affiliates) or Oak (or its Affiliates) be deemed to be a competitor to Holders at the Company and that, as of the Effective Date, Walgreens (and its Affiliates) is deemed to not be a competitor to the Company):times indicated:
(ai) As soon as practicable after the end of each fiscal year, and in any event within 90 days thereafter, a consolidated balance sheet of the Company as of the end of such fiscal year, and a consolidated statement of income and a consolidated statement of cash flow of the Company for such year, prepared in accordance with generally accepted accounting principles and setting forth in each case in comparative form the figures of the previous fiscal year, all in reasonable detail, including all supporting schedules and comments and accompanied by the opinion of independent public accountants of recognized national standing, which opinion shall state that such financial statements were prepared in accordance with generally accepted accounting principles consistently applied, fairly present the financial condition of the Company as of the date thereof and the period covered thereby, and that the audit by such accountants has been made in accordance with generally accepted auditing standards.
(ii) As soon as practicable after the end of the first, second and third quarterly accounting periods in each fiscal year of the Company, and in any event within one hundred fifty (150) 45 days thereafter, a copy of the annual audited financial statements for such fiscal year for the Company and its Subsidiaries, if any, including therein consolidated balance sheets sheet of the Company and its Subsidiaries, if any, as of the end of each such fiscal year quarterly period, and statements a consolidated statement of income and members’ equity and a consolidated statement of cash flows flow of the Company for such fiscal year, setting forth in each case in comparative form the corresponding figures period and for the preceding current fiscal yearyear to date, all prepared in accordance with generally accepted accounting principles consistently applied (“GAAP”), all such consolidated statements to be duly certified by such independent public accountants of recognized national standing approved by the Board to prepare such reports;
(b) As soon as available and in any event within forty-five (45) days after the end of each of the first three quarters of each fiscal year of the Company, an unaudited balance sheet of the Company and its Subsidiaries, if any, as of the end of such quarter and the related unaudited statements of income and members’ equity and of cash flows of the Company for the period commencing at the end of the previous fiscal year and ending with the end of such quarter, setting forth in each case in comparative form the corresponding figures for the corresponding period of the preceding fiscal year and the budget for such current yearprinciples, all in reasonable detail and prepared in accordance with GAAP (signed, subject to changes resulting from year-end audit adjustments and not including all footnotes thereto that may be required in accordance with GAAP);
(c) Upon request (but not more frequently than adjustments, by the delivery principal financial officer of the financial statements described in Sections 7.2(a) and 7.2(b)), a statement showing the number of Units of each class and series of membership interests (including Profits Interests) and securities convertible into or exercisable for Units outstanding at the end of the applicable period, the Junior Units issuable upon conversion or exercise of any outstanding securities convertible or exercisable for Junior Units and the exchange ratio or exercise price applicable thereto, and the number of Units not yet issued but reserved for issuance under the Equity Incentive Plan, if any, all in sufficient detail as to permit the Preferred Unit Holders to calculate their respective percentage equity ownership in the Company;
(d) As soon as available and in any event within thirty (30) days after the end of each calendar month, a statement of recognized revenue, bookings and retained earnings on a monthly basis, compared against the corresponding figures from such month from the preceding fiscal year and the budget for such current year; and
(e) Not later than sixty (60) days after December 31 of each year, an annual budget and quarterly and monthly operating budgets for such fiscal year in a form and with such detail as may be acceptable to a majority of the Directors.
Appears in 1 contract
Financial Information. The (a) Upon request, the Company will furnish to each Major Holder the information set forth in this Section 7.2; providedKey Investors, that the Company shall not be required to furnish such information to a Major Holder if Warrantholders and the Board determines in good faith that such Major Holder is a competitor to Preferred Stockholders the Company (provided that in no event shall Kinnevik (or its Affiliates) or Oak (or its Affiliates) be deemed to be a competitor to the Company and that, as of the Effective Date, Walgreens (and its Affiliates) is deemed to not be a competitor to the Company):following reports:
(ai) As soon as practicable after the end of each fiscal year of the Companyyear, and in any event within one hundred fifty ninety (15090) days thereafter, a copy of the annual audited financial statements for such fiscal year for the Company and its Subsidiaries, if any, including therein consolidated balance sheets of the Company and its Subsidiariessubsidiaries, if any, as of the end of such fiscal year year, and consolidated statements of income and members’ equity and of cash flows of the Company and its subsidiaries, if any, for such fiscal year, prepared in accordance with generally accepted accounting principles applied on a consistent basis and setting forth in each case in comparative form the corresponding figures for the preceding previous fiscal year, all prepared in accordance with generally accepted accounting principles consistently applied (“GAAP”), all such consolidated statements to be duly certified reasonable detail and audited by such independent public accountants of recognized national standing selected by the Company and approved by the Board to prepare such reportsBoard;
(bii) As soon as available practicable after the end of each quarter, and in any event within forty-five (45) days after thereafter (including the end of each of the first three quarters last calendar quarter of each fiscal year of the Companyyear), an unaudited consolidated balance sheet sheets of the Company and its Subsidiariessubsidiaries, if any, as of the end of such quarter quarter, and the related unaudited consolidated statements of income and members’ equity and of cash flows of the Company and its subsidiaries, if any, for the period commencing at the end of the previous fiscal year and ending with the end of such quarter, setting forth prepared in each case accordance with generally accepted accounting principles applied on a consistent basis; provided that footnotes and schedule disclosure appearing in comparative form the corresponding figures for the corresponding period of the preceding fiscal year and the budget for such current yearaudited financial statements shall not be required, all in reasonable detail and prepared in accordance with GAAP (subject to year-end audit adjustments and not including all footnotes thereto that may be required in accordance with GAAP);signed by the principal financial or accounting officer of the Company; and
(c) Upon request (but not more frequently than the delivery of the financial statements described in Sections 7.2(a) and 7.2(b)), a statement showing the number of Units of each class and series of membership interests (including Profits Interests) and securities convertible into or exercisable for Units outstanding at the end of the applicable period, the Junior Units issuable upon conversion or exercise of any outstanding securities convertible or exercisable for Junior Units and the exchange ratio or exercise price applicable thereto, and the number of Units not yet issued but reserved for issuance under the Equity Incentive Plan, if any, all in sufficient detail as to permit the Preferred Unit Holders to calculate their respective percentage equity ownership in the Company;
(diii) As soon as available and practicable, but in any event within thirty (30) days after prior to the end beginning of each calendar monthfiscal year, a statement of recognized revenuebudget for the next fiscal year, bookings and retained earnings prepared on a monthly basis, compared against the corresponding figures from such month from the preceding fiscal year and the budget for such current year; and
(e) Not later than sixty (60) days after December 31 of each year, an annual budget and quarterly and monthly operating as soon as prepared, any other updated or revised budgets for such fiscal year prepared by the Company and approved by the Board.
(b) The Company will furnish to each Major Holder who requests such information the reports set forth in a form and with such detail as may be acceptable to a majority of the Directors(a) above.
Appears in 1 contract
Samples: Investors’ Rights Agreement (Montrose Environmental Group, Inc.)
Financial Information. The Company Borrower will furnish to the Agent, in sufficient copies for distribution by the Agent to each Major Holder Lender, in such detail as the information set forth in this Section 7.2; providedAgent or the Lenders shall request, that the Company shall not be required to furnish such information to a Major Holder if the Board determines in good faith that such Major Holder is a competitor to the Company (provided that in no event shall Kinnevik (or its Affiliates) or Oak (or its Affiliates) be deemed to be a competitor to the Company and that, as of the Effective Date, Walgreens (and its Affiliates) is deemed to not be a competitor to the Company):following:
(a) As soon as practicable after the end of each fiscal year of the Companyavailable, and but in any event within one hundred fifty not later than ninety (15090) days thereafterafter the close of each Fiscal Year, a copy of consolidated audited and consolidating unaudited balance sheets, and income statements, and consolidated cash flow statements and changes in stockholders’ equity for the annual audited financial statements Borrower and its Subsidiaries for such fiscal year for Fiscal Year, and the Company and its Subsidiaries, if any, including therein balance sheets of the Company and its Subsidiaries, if any, as of the end of such fiscal year and statements of income and members’ equity and of cash flows of the Company for such fiscal yearaccompanying notes thereto, setting forth in each case in comparative form the corresponding figures for the preceding fiscal yearprevious Fiscal Year, all in reasonable detail, fairly presenting the financial position and the results of operations of the Borrower and its consolidated Subsidiaries as at the date thereof and for the Fiscal Year then ended, and prepared in accordance with GAAP. Such statements shall be examined in accordance with generally accepted accounting principles consistently applied (“GAAP”)auditing standards by and, all in the case of such statements performed on a consolidated statements to be duly basis, accompanied by a report thereon unqualified in any respect of independent certified by such independent public accountants of recognized national standing approved selected by the Board Borrower and reasonably satisfactory to prepare such reports;the Agent.
(b) As soon as available and available, but in any event within not later than thirty (30) days after the end of each month, consolidated and consolidating unaudited balance sheets of the Borrower and its consolidated Subsidiaries as at the end of such month, and consolidated and consolidating unaudited income statements and consolidated cash flow statements for the Borrower and its consolidated Subsidiaries for such month and for the period from the beginning of the Fiscal Year to the end of such month, all in reasonable detail, fairly presenting the financial position and results of operations of the Borrower and its consolidated Subsidiaries as at the date thereof and for such periods, and, in each case, in comparable form, figures for the corresponding period in the prior Fiscal Year and in the Borrower’s budget, and prepared in accordance with GAAP applied consistently with the audited Financial Statements required to be delivered pursuant to Section 5.2(a), except for the absence of footnotes and subject to normal year-end adjustments; provided that for any month ending on the last day of a fiscal quarter, such information shall be deliverable not less than forty-five (45) days after the end of each of the first three quarters of each fiscal year of the Company, an unaudited balance sheet of the Company and such month. The Borrower shall certify by a certificate signed by its Subsidiaries, if any, as of the end of chief financial officer that all such quarter and the related unaudited statements of income and members’ equity and of cash flows of the Company for the period commencing at the end of the previous fiscal year and ending with the end of such quarter, setting forth in each case in comparative form the corresponding figures for the corresponding period of the preceding fiscal year and the budget for such current year, all in reasonable detail and have been prepared in accordance with GAAP (and present fairly the Borrower’s financial position as at the dates thereof and its results of operations for the periods then ended, except for the absence of footnotes and subject to normal year-end audit adjustments and not including all footnotes thereto that may be required in accordance with GAAP);adjustments.
(c) Upon request (but not more frequently than the delivery With each of the financial statements described in Sections 7.2(a) and 7.2(b)audited Financial Statements delivered pursuant to Section 5.2(a), a statement showing the number of Units of each class and series of membership interests (including Profits Interests) and securities convertible into or exercisable for Units outstanding at the end certificate of the applicable periodindependent certified public accountants that examined such statement to the effect that they have reviewed and are familiar with this Agreement and that, the Junior Units issuable upon conversion or exercise in examining such Financial Statements, they did not become aware of any outstanding securities convertible fact or exercisable condition which then constituted a Default or Event of Default with respect to the financial covenant set forth in Section 7.22 hereof, except for Junior Units and the exchange ratio or exercise price applicable thereto, and the number of Units not yet issued but reserved for issuance under the Equity Incentive Planthose, if any, all described in sufficient reasonable detail as to permit the Preferred Unit Holders to calculate their respective percentage equity ownership in the Company;such certificate.
(d) As soon With each of the annual audited Financial Statements delivered pursuant to Section 5.2(a) and each of the monthly financial statements delivered pursuant to Section 5.2(b), a certificate of the chief financial officer of the Borrower setting forth in reasonable detail the calculations required to establish that the Borrower was in compliance with the covenants set forth in Section 7.22; together with a certificate of the chief financial officer of the Borrower stating that, except as available explained in reasonable detail in such certificate, (1) the Borrower is, at the date of such certificate, in compliance in all material respects with all of its respective covenants and agreements in any event within thirty this Agreement and the other Loan Documents and (302) days after no Default or Event of Default then exists or existed during the end period covered by the Financial Statements for such month. In respect of each calendar monthCertificate delivered in respect of a month ending on the last day of a fiscal quarter, a statement such Certificate shall also certify that all of recognized revenue, bookings the representations and retained earnings on a monthly basis, compared against warranties of the corresponding figures from such month from the preceding fiscal year Borrower contained in this Agreement and the budget other Loan Documents are correct and complete in all material respects as at the date of such certificate as if made at such time, except for those that speak as of a particular date. If any certificate discloses that a representation or warranty is not correct or complete, or that a covenant has not been complied with, or that a Default or Event of Default existed or exists, such current year; andcertificate shall set forth what action the Borrower has taken or proposes to take with respect thereto.
(e) Not later than sixty (60) days after December 31 the beginning of each yearFiscal Year, an annual budget forecasts (to include forecasted consolidated, but not consolidating, balance sheets, income statements and quarterly cash flow statements) for the Borrower and monthly operating budgets its Subsidiaries as at the end of and for each month of such fiscal year in Fiscal Year.
(f) Promptly after filing with the PBGC and the IRS, a form and copy of each annual report or other filing filed with such detail as may be acceptable respect to a majority each Plan of the Borrower.
(g) Promptly upon the filing thereof, copies of all reports, if any, to or other documents filed by the Borrower or any of its Subsidiaries with the Securities and Exchange Commission under the Exchange Act, and all reports, notices, or statements sent or received by the Borrower or any of its Subsidiaries to or from the holders of any equity interests of the Borrower (other than routine non-material correspondence sent by shareholders of the Borrower to the Borrower) or any such Subsidiary or of any Debt of the Borrower or any of its Subsidiaries registered under the Securities Act of 1933 or to or from the trustee under any indenture under which the same is issued.
(h) As soon as available, but in any event not later than 15 days after the Borrower’s receipt thereof, a copy of all final management reports and final management letters prepared for the Borrower by any independent certified public accountants of the Borrower and approved by the Borrower’s Board of Directors.
(i) Promptly after their filing, copies of any and all proxy statements, financial statements, and reports which the Borrower makes available to its shareholders.
(j) If requested by the Agent, promptly after filing with the IRS, a copy of each tax return filed by the Borrower or by any of its Subsidiaries.
(k) Within the time periods specified by Section 9 of the Security Agreement, a Borrowing Base Certificate supporting information as set forth in Section 9 of the Security Agreement.
(l) Such additional information as the Agent and/or any Lender may from time to time reasonably request regarding the financial and business affairs of the Borrower or any Subsidiary.
Appears in 1 contract
Financial Information. The So long as an Investor is a holder of not less than Two Million (2,000,000) Shares (as adjusted for any stock splits, consolidations and the like) (such Investor, a “Major Investor”), the Company will furnish to each such Major Holder Investor the information set forth in this Section 7.2; provided, that following reports accompanied by a certificate of an officer of the Company shall not be required to furnish such information to in a Major Holder if the Board determines in good faith that such Major Holder is a competitor to the Company (form provided that in no event shall Kinnevik (or its Affiliates) or Oak (or its Affiliates) be deemed to be a competitor to the Company and that, as of the Effective Date, Walgreens (and its Affiliates) is deemed to not be a competitor to the Company):by Apax:
(a) As soon as practicable after the end of each fiscal year of the Companyyear, and in any event within one hundred fifty ninety (15090) days thereafter, a copy of the annual audited financial statements for such fiscal year for the Company and its Subsidiaries, if any, including therein consolidated balance sheets of the Company and its Subsidiariessubsidiaries, if any, as of the end of such fiscal year year, and consolidated statements of income and members’ equity and of cash flows of the Company and its subsidiaries, if any, for such fiscal year, setting forth in each case in comparative form the corresponding figures for the preceding fiscal year, all prepared in accordance with generally accepted accounting principles consistently applied (“GAAP”)and setting forth in each case in comparative form the figures for the previous fiscal year, all such consolidated statements to be duly in reasonable detail and certified by such independent public accountants of recognized national standing approved selected by the Board to prepare such reportsCompany;
(b) As soon as available and practicable, but in any event within forty-five (45) days after the end of each of the first three (3) quarters of each fiscal year of the Company, an unaudited consolidated balance sheet sheets of the Company and its Subsidiariessubsidiaries, if any, as of the end of such quarter quarterly period, and the related unaudited consolidated statements of income and members’ equity and of cash flows of the Company and its subsidiaries, if any, for the period commencing at the end of the previous fiscal year such quarterly period, prepared in accordance with generally accepted accounting principles consistently applied and ending with the end of such quarter, setting forth in each case in comparative form the corresponding figures for the corresponding period quarterly periods of the preceding previous fiscal year and the budget for such current year, subject to changes resulting from normal year-end audit adjustments, all in reasonable detail and prepared in accordance with GAAP (subject to year-end audit adjustments and certified by the principal financial or accounting officer of the Company, except such financial statements need not including all footnotes thereto that may be contain the notes required in accordance with GAAP)by generally accepted accounting principles;
(c) Upon request (but not more frequently than the delivery of the financial statements described in Sections 7.2(a) and 7.2(b)), a statement showing the number of Units of each class and series of membership interests (including Profits Interests) and securities convertible into or exercisable for Units outstanding at As soon as practicable after the end of the applicable periodeach calendar month, the Junior Units issuable upon conversion or exercise of any outstanding securities convertible or exercisable for Junior Units and the exchange ratio or exercise price applicable thereto, and the number of Units not yet issued but reserved for issuance under the Equity Incentive Plan, if any, all in sufficient detail as to permit the Preferred Unit Holders to calculate their respective percentage equity ownership in the Company;
(d) As soon as available and in any event within thirty (30) days after thereafter, consolidated balance sheets of the Company and its subsidiaries, if any, as of the end of each calendar month, a statement and consolidated statements of recognized revenue, bookings income and retained earnings on a monthly basis, compared against cash flow for such period and for the corresponding figures from such month from the preceding current fiscal year and the budget for such current year; and
(e) Not later than sixty (60) days after December 31 of each year, an annual budget and quarterly and monthly operating budgets for such fiscal year in a form and with such detail as may be acceptable to a majority of the Directors.date;
Appears in 1 contract
Financial Information. The Company Borrower will furnish deliver to each Major Holder the information set forth in this Section 7.2; provided, that the Company shall not be required Administrative Agent (with sufficient copies to furnish such information distribute to a Major Holder if the Board determines in good faith that such Major Holder is a competitor to the Company (provided that in no event shall Kinnevik (or its Affiliates) or Oak (or its Affiliates) be deemed to be a competitor to the Company and that, as all of the Effective Date, Walgreens (and its Affiliates) is deemed to not be a competitor to the CompanyBanks):
(a) As as soon as practicable available, but in no event later than ninety-five (95) days after the end of each fiscal year Fiscal Year of the CompanyBorrower, and in any event within one hundred fifty (150) days thereafter, a copy an audited consolidated balance sheet of the annual audited financial statements for such fiscal year for the Company Borrower and its Subsidiaries, if any, including therein balance sheets of the Company and its Subsidiaries, if any, Consolidated Subsidiaries as of the end of such fiscal year Fiscal Year and the related consolidated statements of income Borrower's operations and members’ equity and consolidated statements of Borrower's cash flows of the Company flow for such fiscal yearFiscal Year, setting forth in each case in comparative form the corresponding figures for the preceding fiscal yearprevious Fiscal Year, all prepared in accordance with generally accepted accounting principles consistently applied (“GAAP”), all such consolidated statements to be duly certified reported on by such Ernst & Young LLP or other independent public accountants of nationally recognized national standing approved by the Board to prepare such reportsstanding;
(b) As as soon as available available, but in no event later than sixty (60) days after the end of each of the first three Fiscal Quarters of the Borrower, (i) a consolidated balance sheet of the Borrower and in its Consolidated Subsidiaries as of the end of such quarter and the related consolidated statements of Borrower's operations and consolidated statements of Borrower's cash flow for such Fiscal Quarter and for the portion of the Borrower's Fiscal Year ended at the end of such Fiscal Quarter, all reported on by Ernst & Young LLP or other independent public accountants of nationally recognized standing, and (ii) and such other information reasonably requested by the Administrative Agent or any event within Bank;
(c) forty-five (45) days after the end of each Fiscal Quarter, a certificate of the chief financial officer or the chief accounting officer of the Borrower or its general partner (the "Certifying Officer") (i) setting forth in reasonable detail the calculations required to establish whether the Borrower was in compliance with the requirements of Section 5.9 on the date of such financial statements; (ii) certifying (x) that such financial statements fairly present the financial condition and the results of operations of the Borrower on the dates and for the periods indicated, on the basis of GAAP, with respect to the Borrower subject, in the case of interim financial statements, to normally recurring year-end adjustments, and (y) that such officer has reviewed the terms of the Loan Documents and has made, or caused to be made under his or her supervision, a review in reasonable detail of the business and condition of the Borrower during the period beginning on the date through which the last such review was made pursuant to this Section 5.1(c) (or, in the case of the first three quarters certification pursuant to this Section 5.1(c), the Closing Date) and ending on a date not more than ten (10) Domestic Business Days prior to the date of each fiscal year such delivery and that (1) on the basis of such financial statements and such review of the CompanyLoan Documents, an unaudited balance sheet no Event of Default existed under Section 6.1(b) with respect to Sections 5.9 and 5.10 at or as of the Company date of said financial statements, and its Subsidiaries(2) on the basis of such review of the Loan Documents and the business and condition of the Borrower, if anyto the best knowledge of such officer, as of the end of such quarter and the related unaudited statements of income and members’ equity and of cash flows last day of the Company period covered by such certificate no Default or Event of Default under any other provision of Section 6.1 occurred and is continuing or, if any such Default or Event of Default has occurred and is continuing, specifying the nature and extent thereof and, the action the Borrower proposes to take in respect thereof. Such certificate shall set forth the calculations required to establish the matters described in clause (1) above and shall attach as exhibits thereto the following: escrow closing statements, certified by the Certifying Officer, for each Qualifying Unencumbered Property which was acquired during the period commencing at the end of the previous fiscal year and ending with the end of such quarter, preceding Fiscal Quarter; an occupancy report setting forth in the average Occupancy Rate for each case in comparative form the corresponding figures for the corresponding period of Qualifying Unencumbered Property during the preceding fiscal year Fiscal Quarter; and a report stating the budget Net Operating Income for such current year, all in each Qualifying Unencumbered Property during the preceding Fiscal Quarter with reasonable detail and prepared in accordance with GAAP (subject to year-end audit adjustments and not including all footnotes thereto that may be required in accordance with GAAP);
(c) Upon request (but not more frequently than the delivery of the financial statements described in Sections 7.2(a) and 7.2(b)), a statement showing the number of Units of each class and series of membership interests (including Profits Interests) and securities convertible into or exercisable for Units outstanding at the end of the applicable period, the Junior Units issuable upon conversion or exercise of any outstanding securities convertible or exercisable for Junior Units and the exchange ratio or exercise price applicable thereto, and the number of Units not yet issued but reserved for issuance under the Equity Incentive Plan, if any, all in sufficient detail as to permit the Preferred Unit Holders to calculate their respective percentage equity ownership in the Company;all property expenses and capital expenditures.
(d) As soon as available not less frequently than annually, and in any event within thirty fifteen (3015) days after adoption by Borrower's Board of Directors, the end of each calendar monthBorrower's business plan, any subsequent material revisions thereto, and a statement of recognized revenue, bookings and retained earnings on a monthly basis, compared against the corresponding figures from such month from the preceding fiscal year and the budget for such current year; and
(e) Not later than sixty (60) days after December 31 of each year, an annual budget and quarterly and monthly operating budgets for such fiscal year in a form and with such detail as may be acceptable to a majority projected cash flow of the DirectorsBorrower and its Consolidated Subsidiaries for the twelve (12) month period following the date of such Business Plan.
Appears in 1 contract
Financial Information. The Company will furnish to each Major Holder the Lenders the following information set forth in this Section 7.2; provided, that within the Company shall not be required to furnish such information to a Major Holder if the Board determines in good faith that such Major Holder is a competitor to the Company (provided that in no event shall Kinnevik (or its Affiliates) or Oak (or its Affiliates) be deemed to be a competitor to the Company and that, as of the Effective Date, Walgreens (and its Affiliates) is deemed to not be a competitor to the Company):following time periods:
(a) As soon as practicable within one hundred twenty (120) days after the end close of each the fiscal year of the Company, (i) the audited consolidated and in any event within one hundred fifty (150) days thereafter, a copy of the annual audited financial statements for such fiscal year for the Company and its Subsidiaries, if any, including therein consolidating balance sheets and statements of income and retained earnings and of changes in cash flow of the Company and its Subsidiaries, if any, as of the end of such fiscal year and statements of income and members’ equity and of cash flows of the Company for such fiscal year, each in reasonable detail, each setting forth in each case in comparative form the corresponding figures for the preceding fiscal year, all prepared in accordance with generally accepted accounting principles consistently applied (“GAAP”), all such consolidated statements to be duly certified and accompanied by such independent public accountants a report and unqualified opinion of recognized national standing Deloitte & Touche LLP or other Independent Accountant selected by the Company and approved by the Board to prepare Required Lenders and (ii) a divisional operating income analysis for such reportsyear, in reasonable detail, setting forth in comparative form the corresponding analysis for the preceding year, prepared by the Company;
(b) As soon as available and in any event within forty-five (45) days after the end of each of the first three quarters of each fiscal year of the Company, an unaudited balance sheet quarter of the Company other than the final fiscal quarter, unaudited consolidated financial statements and its Subsidiaries, if any, divisional operating income analyses similar to those required by clause (a) above as of the end of such quarter period and the related unaudited statements of income for such period then ended and members’ equity and of cash flows of the Company for the period commencing at from the end beginning of the previous current fiscal year and ending with to the end of such quarterperiod, setting forth in each case in comparative form the corresponding figures for the corresponding comparable period of in the preceding fiscal year and the budget for such current year, all in reasonable detail and prepared in accordance with GAAP (subject to year-end audit adjustments except that such quarterly statements need not include footnotes) and not including all footnotes thereto that may be required certified by any two of the officers described in accordance with GAAP)paragraph (d) below;
(c) Upon request (but not more frequently than the delivery of the financial statements described in Sections 7.2(a) and 7.2(b)), a statement showing the number of Units of each class and series of membership interests (including Profits Interests) and securities convertible into or exercisable for Units outstanding at the end of the applicable period, the Junior Units issuable upon conversion or exercise of any outstanding securities convertible or exercisable for Junior Units and the exchange ratio or exercise price applicable thereto, and the number of Units not yet issued but reserved for issuance under the Equity Incentive Plan, if any, all in sufficient detail as to permit the Preferred Unit Holders to calculate their respective percentage equity ownership in the Company;
(d) As soon as available and in any event within thirty (30) days after the end of each calendar monthfiscal month of the Company other than the final month of each fiscal quarter, a statement unaudited consolidated financial statements and divisional operating income analyses similar to those required by clause (a) above as of recognized revenuethe end of such period and for such period then ended and for the period from the beginning of the current fiscal year to the end of such period (except that no statements of cash flow shall be required), bookings and retained earnings on a monthly basis, compared against setting forth in comparative form the corresponding figures from such month from for the comparable period in the preceding fiscal year, prepared in accordance with GAAP (except that such monthly statements need not include footnotes) and certified by any two of the officers described in paragraph (d) below;
(d) at the time of delivery of each monthly, quarterly and annual statement, a certificate, executed by the Chief Financial Officer, Controller or Treasurer of the Company, stating that such officer has caused this Credit Agreement to be reviewed and has no knowledge of any default by the Company in the performance or observance of any of the provisions of this Credit Agreement, during such month or quarter or at the end of such year, or, if such officer has such knowledge, specifying each default and the nature thereof;
(e) not later than the 25th day of the end of the prior four-week accounting period, a borrowing base certificate (the "Borrowing Base Certificate") in substantially the form of Exhibit L hereto, duly completed and certified by the Company's chief executive officer or chief financial officer, detailing the Borrowers' Eligible Accounts Receivable and Eligible Inventory as of the most recent date of determination which shall be determined not less frequently than at the end of every four-week accounting period. In addition, on the 25th day after the end of the prior four-week accounting period, the Company shall furnish a written report to the Lenders setting forth (i) the accounts receivable aged trial balance for such prior accounting period indicating which Accounts are current, up to 30, 30 to 60 and over 60 days past due and listing the names and addresses of all applicable Account Debtors and (ii) a summary schedule of each category of Inventory owned by each Borrower. The Agent may, but shall not be required to, rely on each Borrowing Base Certificate delivered hereunder as accurately setting forth the available Borrowing Base for all purposes of this Credit Agreement until such time as a new Borrowing Base Certificate is delivered to the Agent in accordance herewith; Borrowing Base Certificates may be prepared and submitted to the Lenders on a more frequent basis than each four-week accounting period at the option of the Company and may be requested more frequently by the Agent in its reasonable discretion, provided that such certificate complies with the requirements set forth elsewhere herein;
(f) within forty-five (45) days after the end of each fiscal quarter of the Company, a certificate in substantially the form of Exhibit K attached hereto (the "Compliance Certificate") executed by the Chief Financial Officer, Controller or Treasurer of the Company, demonstrating compliance with the financial covenants contained in Article VIII by calculation thereof as of the end of each such fiscal period and the other provisions contained in the Compliance Certificate;
(g) promptly upon receipt thereof, copies of all management letters and other material reports which are submitted to the Company by its Independent Accountant in connection with any annual or interim audit of the books of the Company made by such accountants;
(h) as soon as practicable but, in any event, within ten (10) Business Days after the issuance thereof, copies of such other financial statements and reports as the Company shall send to its stockholders as such, and copies of all regular and periodic reports which the Company may be required to file with the Securities and Exchange Commission or any similar or corresponding governmental commission, department or agency substituted therefor, or any similar or corresponding governmental commission, department, board, bureau, or agency, federal or state;
(i) no later than the last Business Day of February during each year when this Credit Agreement is in effect, a business plan for such fiscal year of the Company which includes a projected consolidated balance sheet and statement of income for such fiscal year and the budget a projected consolidated statement of cash flows for such current fiscal year and, no later than the last Business Day of March during each year when this Credit Agreement is in effect, a business plan for such fiscal year of the Company which includes projected consolidated balance sheets and statements of income on a quarterly basis for such fiscal year and projected consolidated statements of cash flows on a quarterly basis for such fiscal year;
(j) promptly upon receipt thereof, copies of all notices delivered to the Company or sent by the Company with respect to Senior Unsecured Debt, including, without limitation, any notice of default (the Company expressly agreeing to furnish all such notices by telecopy);
(k) promptly and in any event within two (2) Business Days after becoming aware of the occurrence of a Default or Event of Default, a certificate of the chief executive officer or chief financial officer of the Company specifying the nature thereof and the Borrowers' proposed response thereto, each in reasonable detail; and
(el) Not later than sixty (60) days after December 31 of each yearwith reasonable promptness, an annual budget and quarterly and monthly operating budgets for such fiscal year in a form and with such detail other data as may be acceptable to a majority the Agent or any of the DirectorsLenders may reasonably request.
Appears in 1 contract
Samples: Credit Agreement (Fresh Foods Inc)
Financial Information. The Company will furnish to provide each Major Holder Investor with the information set forth reports specified in subsection (a) below and, for so long as the Investor is a holder of a minimum of 250,000 Shares or an equivalent amount of Conversion Stock or of an equivalent combination of Shares and Conversion Stock, including for purposes of this Section 7.2; provided, that the Company shall not be required to furnish 7 any such information Shares or Conversion Stock transferred to a Major Holder if constituent partner of an Investor, the Board determines reports specified in good faith that such Major Holder is a competitor to the Company subsections (provided that in no event shall Kinnevik b) and (or its Affiliatesc) or Oak (or its Affiliates) be deemed to be a competitor to the Company and that, as of the Effective Date, Walgreens (and its Affiliates) is deemed to not be a competitor to the Company):below:
(a) As soon as practicable after the end of each fiscal year of the Companyyear, and in any event within one hundred fifty ninety (15090) days thereafter, a copy of the annual audited financial statements for such fiscal year for the Company and its Subsidiaries, if any, including therein consolidated balance sheets of the Company and its Subsidiariessubsidiaries, if any, as of the end of such fiscal year year, and consolidated statements of income and members’ operations, shareholders' equity and of cash flows of the Company and its subsidiaries, if any, for such fiscal year, prepared in accordance with generally accepted accounting principles and setting forth in each case in comparative form the corresponding figures for the preceding previous fiscal year, all prepared in accordance with generally accepted accounting principles consistently applied reasonable detail and audited (“GAAP”), all such consolidated statements to be duly certified without qualification) by such independent public accountants auditors of recognized national standing approved selected by the Board to prepare such reports;Company.
(b) As soon as available practicable after the end of each quarter and in any event within forty-five (45) days after the end of each of the first three quarters of each fiscal year of the Companythereafter, an unaudited a consolidated balance sheet of the Company and its Subsidiariessubsidiaries, if any, as of the end of each such quarter quarter, and the related unaudited consolidated statements of income operations and members’ equity and of cash flows of the Company and its subsidiaries for such period and for the period commencing at the end of the previous current fiscal year to date, and ending with the end of such quarter, setting forth in each case in comparative form the corresponding figures for the corresponding comparable prior year period of and for the preceding current fiscal year and the budget to date then reported, prepared in accordance with generally accepted accounting principles (other than for such current accompanying notes), subject to changes resulting from year-end audit adjustments, all in reasonable detail and prepared in accordance with GAAP (subject to year-end audit adjustments and not including all footnotes thereto that may be required in accordance with GAAP);detail.
(c) Upon request (but not more frequently than the delivery of the financial statements described in Sections 7.2(a) and 7.2(b)), a statement showing the number of Units of each class and series of membership interests (including Profits Interests) and securities convertible into or exercisable for Units outstanding at As soon as practicable after the end of the applicable period, the Junior Units issuable upon conversion or exercise of any outstanding securities convertible or exercisable for Junior Units and the exchange ratio or exercise price applicable thereto, and the number of Units not yet issued but reserved for issuance under the Equity Incentive Plan, if any, all in sufficient detail as to permit the Preferred Unit Holders to calculate their respective percentage equity ownership in the Company;
(d) As soon as available each month and in any event within thirty (30) days after thereafter, a consolidated balance sheet of the Company and its subsidiaries, if any, as of the end of each calendar such month, a statement and consolidated statements of recognized revenueoperations and cash flows of the Company and its subsidiaries for such period and for the current fiscal year to date, bookings and retained earnings setting forth in comparative form the budgeted figures for such period and for the current fiscal year then reported, prepared in accordance with generally accepted accounting principles (other than for accompanying notes), subject to changes resulting from year-end audit adjustments, all in reasonable detail.
(d) A copy of the annual operating plan of the Company for the next fiscal year and an annual budget for the next fiscal year of the Company containing profit and loss projections, cash flow projections and capital expenditures, all on a monthly basis, compared against in the corresponding figures from such month from form approved by the preceding Company's board of directors, as soon as it is available but in any event prior to the end of the current fiscal year and the budget for such current year; and.
(e) Not later than sixty (60) days after December 31 of each year, an annual budget and quarterly and monthly operating budgets for such fiscal year in a form and with such detail as may be acceptable to a majority The obligation of the DirectorsCompany to furnish financial information under this Section 7.1 shall terminate upon a public offering or when the Company becomes subject to the reporting requirements of the Securities Exchange Act of 1934, as amended.
Appears in 1 contract
Samples: Series C Preferred Stock Purchase Agreement (Avenue a Inc)
Financial Information. The Until the first to occur of (i) the date --------------------- on which the Company is required to file a report pursuant to Section 13(a) of the Securities Exchange Act of 1934 (the "Exchange Act"), by reason of the Company having registered any of its securities pursuant to Section 12(g) of the Exchange Act or (ii) quotations for the Common Stock of the Company are reported by the automated quotations system operated by the National Association of Securities Dealers, Inc. or by an equivalent quotations system or (iii) shares of the Common Stock of the Company are listed on a national securities exchange registered under Section 6 of the Exchange Act, the Company will furnish to each Major Holder the information set forth in this Section 7.2; provided, that the Company shall not be required to furnish such information to a Major Holder if the Board determines in good faith that such Major Holder is a competitor to the Company (provided that in no event shall Kinnevik (or its Affiliates) or Oak (or its Affiliates) be deemed to be a competitor to the Company and that, as of the Effective Date, Walgreens (and its Affiliates) is deemed to not be a competitor to the Company):Purchaser:
(a) As so long as such Purchaser or its affiliates own any of the Series A Shares or Common Stock issued upon conversion of the Series A Shares, as soon as practicable after the end of each fiscal year of the Companyyear, and in any event within one hundred fifty (150) 120 days thereafter, a copy of the annual audited financial statements for such fiscal year for the Company and its Subsidiaries, if any, including therein consolidated balance sheets of the Company and its Subsidiariessubsidiaries, if any, as at the end of such fiscal year, and consolidated statements of operations and consolidated statements of cash flow of the Company and its subsidiaries, if any, for such year, prepared in accordance with generally accepted accounting principles, all in reasonable detail and certified by independent public accountants of recognized national standing selected by the Company; and
(b) so long as the Purchaser continues to hold any of the Series A Shares or Common Stock issued upon conversion of the Series A Shares, as soon as practicable after the end of each fiscal quarter, and in any event within 45 days thereafter, consolidated balance sheets of the Company and its subsidiaries, if any, as at the end of such fiscal quarter, and consolidated statements of operations and consolidated statements of cash flow of the Company and its subsidiaries, if any, for such quarter, prepared in accordance with generally accepted accounting principles (except for required footnotes), all in reasonable detail, subject to changes resulting from year-end audit adjustments and inter-period allocations; and
(c) so long as the Purchaser continues to hold at least 100,000 shares of the Company's Series A Preferred Stock (as adjusted for stock splits, combinations, dividends, distributions or recapitalizations), as soon as practicable after the end of each month and in any event within 30 days thereafter, consolidated balance sheets of the Company and its subsidiaries, if any, as of the end of such fiscal year month and consolidated statements of income and members’ equity and of cash flows of the Company flow statements, for such fiscal year, setting forth in each case in comparative form the corresponding figures month and for the preceding current fiscal yearyear to date, all prepared in accordance with generally accepted accounting principles consistently applied (“GAAP”except for required footnotes), all such consolidated statements to be duly certified by such independent public accountants of recognized national standing approved by the Board to prepare such reports;
(b) As soon as available and in any event within forty-five (45) days after the end of each of the first three quarters of each fiscal year of the Company, an unaudited balance sheet of the Company and its Subsidiaries, if any, as of the end of such quarter and the related unaudited statements of income and members’ equity and of cash flows of the Company for the period commencing at the end of the previous fiscal year and ending with the end of such quarter, setting forth in each case in comparative form the corresponding figures for the corresponding period of the preceding fiscal year and the budget for such current year, all in reasonable detail and prepared in accordance with GAAP (detail, subject to changes resulting from year-end audit adjustments and not including all footnotes thereto that may be required in accordance with GAAP);inter-period allocations; and
(cd) Upon request (but not more frequently than so long as the delivery Purchaser continues to hold at least 100,000 shares of the financial statements described in Sections 7.2(a) and 7.2(b)Company's Series A Preferred Stock (as adjusted for stock splits, combinations, dividends, distributions or recapitalizations), a statement showing the number of Units of each class as soon as practicable and series of membership interests (including Profits Interests) and securities convertible into or exercisable for Units outstanding at in any event no later than thirty days before the end of the applicable period, the Junior Units issuable upon conversion or exercise of any outstanding securities convertible or exercisable for Junior Units and the exchange ratio or exercise price applicable thereto, and the number of Units not yet issued but reserved for issuance under the Equity Incentive Plan, if any, all in sufficient detail as to permit the Preferred Unit Holders to calculate their respective percentage equity ownership in the Company;
(d) As soon as available and in any event within thirty (30) days after the end of each calendar month, a statement of recognized revenue, bookings and retained earnings on a monthly basis, compared against the corresponding figures from such month from the preceding fiscal year and the budget for such current year; and
(e) Not later than sixty (60) days after December 31 of each year, an annual budget (consisting of projected income statements and quarterly and projected cash flow statements reported on a monthly operating budgets basis) for such the subsequent fiscal year in a form and with such detail as may be acceptable to a majority of the Directorsyear.
Appears in 1 contract
Samples: Series a Preferred Stock Purchase Agreement (Salon Internet Inc)
Financial Information. The Company will furnish to provide each Major Holder Investor with the information set forth reports specified in subsection (a), (d) and (e) below and, for so long as such Investor is a holder of a minimum of 250,000 Series D Shares, Warrants for Series D Stock or an equivalent amount of Conversion Stock or of a combination of Series D Shares, Warrants for Series D Stock and Conversion Stock, including for purposes of this Section 7.2; provided7 any such Series D Shares, that the Company shall not be required to furnish such information Warrants for Series D Stock or Conversion Stock transferred to a Major Holder if constituent partner, affiliate or limited liability company member of an Investor, the Board determines reports specified in good faith that such Major Holder is a competitor to the Company subsections (provided that in no event shall Kinnevik b) and (or its Affiliatesc) or Oak (or its Affiliates) be deemed to be a competitor to the Company and that, as of the Effective Date, Walgreens (and its Affiliates) is deemed to not be a competitor to the Company):below:
(a) As soon as practicable after the end of each fiscal year of the Companyyear, and in any event within one hundred fifty ninety (15090) days thereafter, a copy of the annual audited financial statements for such fiscal year for the Company and its Subsidiaries, if any, including therein consolidated balance sheets of the Company and its Subsidiariessubsidiaries, if any, as of the end of such fiscal year year, and consolidated statements of income and members’ operations, stockholders' equity and of cash flows of the Company and its subsidiaries, if any, for such fiscal year, setting forth prepared in accordance with generally accepted accounting principles consistently applied, all in reasonable detail and audited by independent auditors of national standing selected by the Company and reasonably acceptable to the Investors.
(b) As soon as practicable after the end of each case month and in comparative form any event within thirty (30) days thereafter, a consolidated balance sheet of the corresponding figures Company and its subsidiaries, if any, as of the end of each such month, and consolidated statements of operations and cash flows of the Company and its subsidiaries for such period and for the preceding current fiscal yearyear to date, all prepared in accordance with generally accepted accounting principles consistently applied (“GAAP”other than for accompanying notes), all such consolidated statements subject to be duly certified by such independent public accountants of recognized national standing approved by the Board to prepare such reports;
(b) As soon as available and in any event within fortychanges resulting from year-five (45) days after the end of each of the first three quarters of each fiscal year of the Company, an unaudited balance sheet of the Company and its Subsidiaries, if any, as of the end of such quarter and the related unaudited statements of income and members’ equity and of cash flows of the Company for the period commencing at the end of the previous fiscal year and ending with the end of such quarter, setting forth in each case in comparative form the corresponding figures for the corresponding period of the preceding fiscal year and the budget for such current yearaudit adjustments, all in reasonable detail and prepared in accordance with GAAP (subject to year-end audit adjustments and not including all footnotes thereto that may be required in accordance with GAAP);signed by the principal financial or principal accounting officer of the Company.
(c) Upon request (but not more frequently than the delivery A copy of the financial statements described annual operating plan of the Company for the next fiscal year and an annual budget for the next fiscal year of the Company containing profit and loss projections, cash flow projections and capital expenditures, all on a monthly basis, as soon as it is available but in Sections 7.2(aany event prior to thirty (30) and 7.2(b)), a statement showing the number of Units of each class and series of membership interests (including Profits Interests) and securities convertible into or exercisable for Units outstanding at days before the end of the applicable period, the Junior Units issuable upon conversion or exercise of any outstanding securities convertible or exercisable for Junior Units and the exchange ratio or exercise price applicable thereto, and the number of Units not yet issued but reserved for issuance under the Equity Incentive Plan, if any, all in sufficient detail as to permit the Preferred Unit Holders to calculate their respective percentage equity ownership in the Company;current fiscal year.
(d) As soon as available practicable after the end of each quarter and in any event within thirty forty five (3045) days after the end of each calendar monththereafter, a statement schedule of recognized revenueall stockholders of the Company by certificate number, bookings class and retained earnings on series and a monthly basisschedule of all outstanding interests in the Incentive Plan and any other stock option, compared against stock purchase or similar equity incentive plan hereafter adopted by the corresponding figures from such month from Company with the preceding fiscal year and the budget for such current year; andapproval of its Board of Directors.
(e) Not later than sixty (60) days after December 31 of each year, an annual budget and quarterly and monthly operating budgets for such fiscal year in a form and with such detail as may be acceptable to a majority The obligation of the DirectorsCompany to furnish financial information under this Section 7.2 shall terminate upon a public offering or when the Company becomes subject to the reporting requirements of the Securities Exchange Act of 1934, as amended. Notwithstanding such termination, for a period of three years following the closing of such public offering, the Company shall deliver to the Investors copies of the Company's 10-Ks, 10-Qs, 8-Ks and Annual Reports to Stockholders promptly after such documents are filed with the Securities and Exchange Commission.
Appears in 1 contract
Financial Information. The Company will furnish to each Major Holder the information set forth in this Section 7.2; provided, that the Company shall not be required to furnish such information to a Major Holder if the Board determines in good faith that such Major Holder is a competitor to the Company (provided that in no event shall Kinnevik (or its Affiliatesi) or Oak (or its Affiliates) be deemed to be a competitor to the Company and thatGlobal Signal shall, as of the Effective Date, Walgreens (and its Affiliates) is deemed to not be a competitor to the Company):
(a) As soon as practicable practical, but in any event within 95 days after the end of each fiscal year of Global Signal commencing with the Companyyear ending on December 31, 2004, deliver to the Agents and in any event within one hundred fifty (150) days thereafter, the Lenders a copy of the annual audited financial statements for such fiscal year for the Company consolidated balance sheet of Global Signal and its Subsidiaries, if any, including therein balance sheets of the Company and its Subsidiaries, if any, consolidated Subsidiaries as of at the end of such fiscal year and the related consolidated statements of income and members’ equity retained earnings and of cash flows of the Company for such fiscal year, setting forth in each case in comparative form the corresponding figures for the preceding fiscal previous year, all prepared in accordance with generally accepted accounting principles consistently applied (“GAAP”)reported on without a "going concern" or like qualification or exception, all such consolidated statements to be duly certified or qualification arising out of the scope of the audit, by such Ernst & Young LLP or other independent registered public accountants of nationally recognized national standing approved by the Board to prepare such reportsstanding;
(bii) As Global Signal shall, as soon as available and practical, but in any event within forty-five (45) not later than 50 days after the end of each of the first three quarters quarterly periods of each fiscal year of Global Signal commencing with the Companyquarterly period ending on March 31, an 2005, deliver to the Agents and the Lenders the unaudited consolidated balance sheet of the Company Global Signal and its Subsidiaries, if any, consolidated Subsidiaries as of at the end of such quarter and the related unaudited consolidated statements of income and members’ equity retained earnings and of cash flows of Global Signal and its consolidated Subsidiaries for such quarter and the Company for the period commencing at the end portion of the previous fiscal year and ending with through the end of such quarter, setting forth in each case in comparative form the corresponding equivalent figures for the corresponding period of the preceding fiscal year and the budget for such current previous year, certified by a Responsible Officer as being fairly stated in all in reasonable detail and prepared in accordance with GAAP material respects (subject to year-normal year end audit adjustments and not including all footnotes thereto that may be required in accordance with GAAPadjustments);
(ciii) Upon request (but not more frequently than Global Signal shall, concurrently with the delivery of the financial statements described referred to in Sections 7.2(aclauses (i) and 7.2(b))(ii) of this Section, deliver to the Agents and the Lenders a statement showing certificate of a Responsible Officer of Global Signal stating that, to the number best of Units of such Responsible Officer's knowledge, each class and series of membership interests (including Profits Interests) and securities convertible into or exercisable for Units outstanding at the end of the applicable periodLoan Parties during such period has observed or performed all of its covenants and other agreements, and satisfied every condition, contained in this Agreement and the Junior Units issuable upon conversion other Loan Documents to be observed, performed or exercise satisfied by it, and that such Responsible Officer has obtained no knowledge of any outstanding securities convertible Default or exercisable for Junior Units and the exchange ratio or exercise price applicable thereto, and the number Event of Units not yet issued but reserved for issuance under the Equity Incentive Plan, if any, all Default except as specified in sufficient detail as to permit the Preferred Unit Holders to calculate their respective percentage equity ownership in the Company;
(d) As soon as available and in any event within thirty (30) days after the end of each calendar month, a statement of recognized revenue, bookings and retained earnings on a monthly basis, compared against the corresponding figures from such month from the preceding fiscal year and the budget for such current yearcertificate; and
(eiv) Not later than sixty Global Signal shall deliver to the Agents and the Lenders (60to the extent not available on Global Signal's website www.gsignal.com) (A) within five days after December 31 the same are sent, xxxxxx xx xxx financial statements and reports which Global Signal sends to its stockholders, (B) within five days after the same are filed, copies of each all financial statements and reports which Global Signal may make to, or file with, the Securities and Exchange Commission or any successor or analogous Governmental Authority, and (C) such other additional financial information that the Agents or any Lender may from time to time reasonably request; all such financial statements shall be complete and correct in all material respects and shall be prepared in reasonable detail and in accordance with GAAP (except for, in the case of any unaudited financial statements, the absence of footnotes and normal year, an annual budget and quarterly and monthly operating budgets for such fiscal year in a form -end adjustments) applied consistently throughout the periods reflected therein and with prior periods (except as approved by such detail accountants or officer, as the case may be, and disclosed therein). Neither Global Signal nor any of its Subsidiaries shall fail to timely file all tax returns that are required to be acceptable filed by it or timely pay all Taxes due, except for any such Taxes as are being appropriately contested in good faith by appropriate proceedings diligently conducted and with respect to a majority of the Directorswhich adequate reserves have been provided.
Appears in 1 contract
Samples: Parent Guarantee (Global Signal Inc)
Financial Information. The For so long as the Investor and its subsidiaries hold, in the aggregate, at least 78,000 of the Shares (as adjusted for stock splits, stock dividends and the like) or more shares, the Company will furnish to each Major Holder deliver the information set forth in this Section 7.2; provided, that the Company shall not be required to furnish such information to a Major Holder if the Board determines in good faith that such Major Holder is a competitor following reports to the Company (provided that in no event shall Kinnevik (or its Affiliates) or Oak (or its Affiliates) be deemed to be a competitor to the Company and that, as of the Effective Date, Walgreens (and its Affiliates) is deemed to not be a competitor to the Company):Investor:
(a) As soon as practicable after the end of each fiscal year of the Companyyear, and in any event within one hundred fifty (150) 90 days thereafter, a copy of the annual audited financial statements for such fiscal year for the Company and its Subsidiaries, if any, including therein consolidated balance sheets of the Company and its Subsidiaries, if any, as of the end of such fiscal year year, and consolidated statements of income and members’ equity and consolidated statements of changes in cash flows flow of the Company and its Subsidiaries, if any, for such fiscal year, prepared in accordance with GAAP and setting forth in each case in comparative form the corresponding figures for the preceding previous fiscal year, all prepared in accordance with generally accepted accounting principles consistently applied (“GAAP”), all such consolidated statements to be duly certified reasonable detail and audited by such independent public accountants of recognized national standing approved selected by the Board Company, together with a certificate of the Company executed by the chief executive officer or principal financial or accounting officer of the Company certifying that all covenants to prepare such reports;be complied with by the Company hereunder have been complied with (or setting forth in reasonable detail any covenants that have not been so complied with).
(b) As soon as available and in any event within forty-five (45) days practicable after the end of each of the first three quarters of first, second and third quarterly accounting periods in each fiscal year of the Company, an unaudited balance and in any event within 60 days thereafter, a consolidated balance- sheet of the Company and its Subsidiaries, if any, as of the end of each such quarter quarterly period, and the related unaudited consolidated statements of income and members’ equity and consolidated statements of change in cash flows flow of the Company for such period and for the period commencing at current fiscal year to date, prepared in accordance with GAAP (other than for accompanying notes), subject to changes resulting from normal year-end audit adjustments, for the end same periods of the previous fiscal year and ending with the end of such quarter, setting forth in each case in comparative form the corresponding figures for the corresponding period of the preceding fiscal year and the budget for such current year, all in reasonable detail and prepared in accordance with GAAP (subject to year-end audit adjustments and not including all footnotes thereto that may be required in accordance with GAAP);
(c) Upon request (but not more frequently than signed by the delivery principal financial or accounting officer of the financial statements described in Sections 7.2(a) and 7.2(b))Company, together with a statement showing the number of Units of each class and series of membership interests (including Profits Interests) and securities convertible into or exercisable for Units outstanding at the end certificate of the applicable period, Company executed by the Junior Units issuable upon conversion chief executive officer or exercise of any outstanding securities convertible principal financial or exercisable for Junior Units and the exchange ratio or exercise price applicable thereto, and the number of Units not yet issued but reserved for issuance under the Equity Incentive Plan, if any, all in sufficient detail as to permit the Preferred Unit Holders to calculate their respective percentage equity ownership in the Company;
(d) As soon as available and in any event within thirty (30) days after the end of each calendar month, a statement of recognized revenue, bookings and retained earnings on a monthly basis, compared against the corresponding figures from such month from the preceding fiscal year and the budget for such current year; and
(e) Not later than sixty (60) days after December 31 of each year, an annual budget and quarterly and monthly operating budgets for such fiscal year in a form and with such detail as may be acceptable to a majority accounting officer of the DirectorsCompany certifying that all covenants to be complied with by the Company hereunder have been complied with (or setting forth in reasonable detail any covenants that have not been so complied with).
Appears in 1 contract
Financial Information. The As soon as practicable after the end of each fiscal year, and in any event within one hundred twenty (120) days thereafter, the Company will furnish provide to each Major Holder Stockholder who owns at least 50,000 shares of Preferred (as adjusted for stock splits, reverse stock splits, recapitalizations, dividends and the information set forth in this Section 7.2; providedlike), that the Company shall not be required to furnish such information to a Major Holder if the Board determines in good faith that such Major Holder is a competitor to the Company (provided that in no event shall Kinnevik (or its Affiliates) or Oak (or its Affiliates) be deemed to be a competitor to consolidated balance sheets of the Company and thatits subsidiaries, if any, as of the Effective Dateend of such fiscal year, Walgreens (and consolidated statements of income, stockholders’ equity and cash flows of the Company and its Affiliates) is deemed to not be a competitor to subsidiaries, if any, for such year, prepared by an independent auditor of national standing and reputation in accordance with generally accepted accounting principles and setting forth in each case in comparative form the Company):figures for the previous fiscal year, all in reasonable detail. In addition, the Company will provide each such Stockholder with the following reports:
(a) As soon as practicable after the end of each month and fiscal year of the Company, and in any event within one hundred fifty (150) days thereafter, a copy of the annual audited financial statements for such fiscal year for the Company and its Subsidiaries, if any, including therein balance sheets of the Company and its Subsidiaries, if any, as of the end of such fiscal year and statements of income and members’ equity and of cash flows of the Company for such fiscal year, setting forth in each case in comparative form the corresponding figures for the preceding fiscal year, all prepared in accordance with generally accepted accounting principles consistently applied (“GAAP”), all such consolidated statements to be duly certified by such independent public accountants of recognized national standing approved by the Board to prepare such reports;
(b) As soon as available and in any event within forty-five (45) days after the end of each of the first three quarters of each fiscal year of the Company, an unaudited balance sheet of the Company and its Subsidiaries, if any, as of the end of such quarter and the related unaudited statements of income and members’ equity and of cash flows of the Company for the period commencing at the end of the previous fiscal year and ending with the end of such quarter, setting forth in each case in comparative form the corresponding figures for the corresponding period of the preceding fiscal year and the budget for such current year, all in reasonable detail and prepared in accordance with GAAP (subject to year-end audit adjustments and not including all footnotes thereto that may be required in accordance with GAAP);
(c) Upon request (but not more frequently than the delivery of the financial statements described in Sections 7.2(a) and 7.2(b)), a statement showing the number of Units of each class and series of membership interests (including Profits Interests) and securities convertible into or exercisable for Units outstanding at the end of the applicable period, the Junior Units issuable upon conversion or exercise of any outstanding securities convertible or exercisable for Junior Units and the exchange ratio or exercise price applicable thereto, and the number of Units not yet issued but reserved for issuance under the Equity Incentive Plan, if any, all in sufficient detail as to permit the Preferred Unit Holders to calculate their respective percentage equity ownership in the Company;
(d) As soon as available and in any event within thirty (30) days after and forty-five (45) days, respectively, thereafter, a consolidated balance sheet of the Company and its subsidiaries, if any, as of the end of each calendar monthsuch period, consolidated statements of income, consolidated statements of changes in financial condition, a consolidated statement of cash flow of the Company and its subsidiaries and a statement of recognized revenuestockholders’ equity for such period and for the current fiscal year to date, bookings and retained earnings setting forth in each case in comparative form the figures for corresponding periods in the previous fiscal year, and setting forth in comparative form the budgeted figures, prepared in accordance with generally accepted accounting principles (other than for accompanying notes), subject to changes resulting from year-end audit adjustments, all in reasonable detail and signed by the principal financial or accounting officer of the Company.
(b) As soon as practicable after its adoption by the Board of Directors, a copy of the annual operating plan of the Company for the next fiscal year and an annual budget for the next fiscal year of the Company containing profit and loss projections, cash flow projections, and capital expenditures, all on a monthly or quarterly basis, compared against the corresponding figures from such month from the preceding fiscal year and the budget for such current year; and
(e) Not later than sixty (60) days after December 31 of each year, an annual budget and quarterly and monthly operating budgets for such fiscal year in a form and with such detail as may be acceptable to a majority of the Directors.
Appears in 1 contract
Financial Information. The Company will furnish to provide each Major Holder Investor the information set forth in following reports for so long as the Investor is a holder of not less than 500,000 shares of Registrable Securities (as equitably adjusted for any stock splits, stock dividends, combinations or recapitalizations occurring after the date hereof) (each, a “Recapitalization”)), including for purposes of this Section 7.2; provided, that the Company shall not be required to furnish 2 any such information Registrable Securities which have been transferred to a Major Holder if the Board determines in good faith that such Major Holder is a competitor to the Company (provided that in no event shall Kinnevik (or its Affiliates) or Oak (or its Affiliates) be deemed to be a competitor to the Company and that, as constituent partner of the Effective Date, Walgreens (and its Affiliates) is deemed to not be a competitor to the Company):an Investor:
(a) As soon as practicable after the end of each fiscal year of the Companyyear, and in any event within one hundred fifty twenty (150120) days thereafter, a copy of the annual audited financial statements for such fiscal year for the Company and its Subsidiaries, if any, including therein balance sheets of the Company and its Subsidiaries, if any, as of the end of such fiscal year year, and audited statements of income and membersincome, shareholders’ equity and of cash flows of the Company for such fiscal year, setting forth in each case in comparative form the corresponding figures for the preceding fiscal year, all prepared in accordance with generally accepted accounting principles consistently applied (“GAAP”), all such consolidated statements to be duly and certified by such an independent public accountants accounting firm of nationally recognized national standing approved by the Board to prepare such reports;standing.
(b) As soon as available and in any event within forty-five (45) days practicable after the end of each of the first three quarters of each month and fiscal year of the Company, an unaudited balance sheet of the Company and its Subsidiaries, if any, as of the end of such quarter and the related unaudited statements of income and members’ equity and of cash flows of the Company for the period commencing at the end of the previous fiscal year and ending with the end of such quarter, setting forth in each case in comparative form the corresponding figures for the corresponding period of the preceding fiscal year and the budget for such current year, all in reasonable detail and prepared in accordance with GAAP (subject to year-end audit adjustments and not including all footnotes thereto that may be required in accordance with GAAP);
(c) Upon request (but not more frequently than the delivery of the financial statements described in Sections 7.2(a) and 7.2(b)), a statement showing the number of Units of each class and series of membership interests (including Profits Interests) and securities convertible into or exercisable for Units outstanding at the end of the applicable period, the Junior Units issuable upon conversion or exercise of any outstanding securities convertible or exercisable for Junior Units and the exchange ratio or exercise price applicable thereto, and the number of Units not yet issued but reserved for issuance under the Equity Incentive Plan, if any, all in sufficient detail as to permit the Preferred Unit Holders to calculate their respective percentage equity ownership in the Company;
(d) As soon as available and in any event within thirty (30) days after and forty-five (45) days, respectively, thereafter, a balance sheet of the Company as of the end of each calendar monthsuch period, statements of income, statements of changes in financial condition, a statement of recognized revenuecash flow of the Company and a statement of shareholders’ equity for such period and for the current fiscal year to date, bookings and retained earnings setting forth in each case in comparative form the figures for corresponding periods in the previous fiscal year, and setting forth in comparative form the budgeted figures, prepared in accordance with generally accepted accounting principles (other than for accompanying notes), applied on a consistent basis, subject to changes resulting from normal year-end adjustments, all in reasonable detail and signed by the principal financial or accounting officer of the Company.
(c) As soon as practicable, but in any event thirty (30) days prior to the end of each fiscal year, a budget and business plan for the next fiscal year, prepared on a monthly basis, compared against an updated list of all shareholders of the corresponding figures from such month from Company that includes the preceding fiscal year name of each shareholder and the budget for such current year; number and class of shares held by each shareholder, and, as soon as prepared, any other budgets or revised budgets prepared by the Company. and
(ed) Not later than sixty (60) days after December 31 of each yearSuch other information relating to the financial condition, an annual budget and quarterly and monthly operating budgets for such fiscal year in a form and with such detail as may be acceptable to a majority business, prospects or corporate affairs of the DirectorsCompany as the Investor or any assignee of the Investor may from time to time reasonably request, provided, however, that the Company shall not be obligated to provide information which it deems in good faith to be proprietary.
Appears in 1 contract
Financial Information. The Until the first to occur of (i) the date --------------------- on which the Company is required to file a report pursuant to Section 13(a) of the Securities Exchange Act of 1934 (the "Exchange Act"), by reason of the Company having registered any of its securities pursuant to Section 12(g) of the Exchange Act or (ii) quotations for the Common Stock of the Company are reported by the automated quotations system operated by the National Association of Securities Dealers, Inc. or by an equivalent quotations system or (iii) shares of the Common Stock of the Company are listed on a national securities exchange registered under Section 6 of the Exchange Act, the Company will furnish to each Major Holder the information set forth in this Section 7.2; provided, that the Company shall not be required to furnish such information to a Major Holder if the Board determines in good faith that such Major Holder is a competitor to the Company (provided that in no event shall Kinnevik (or its Affiliates) or Oak (or its Affiliates) be deemed to be a competitor to the Company and that, as of the Effective Date, Walgreens (and its Affiliates) is deemed to not be a competitor to the Company):Purchaser:
(a) As so long as such Purchaser or its affiliates own any of the Series B Shares or Common Stock issued upon conversion of the Series B Shares, as soon as practicable after the end of each fiscal year of the Companyyear, and in any event within one hundred fifty (150) 120 days thereafter, a copy of the annual audited financial statements for such fiscal year for the Company and its Subsidiaries, if any, including therein consolidated balance sheets of the Company and its Subsidiariessubsidiaries, if any, as at the end of such fiscal year, and consolidated statements of operations and consolidated statements of cash flow of the Company and its subsidiaries, if any, for such year, prepared in accordance with generally accepted accounting principles, all in reasonable detail and certified by independent public accountants of recognized national standing selected by the Company; and
(b) so long as the Purchaser continues to hold any of the Series B Shares or Common Stock issued upon conversion of the Series B Shares, as soon as practicable after the end of each fiscal quarter, and in any event within 45 days thereafter, consolidated balance sheets of the Company and its subsidiaries, if any, as at the end of such fiscal quarter, and consolidated statements of operations and consolidated statements of cash flow of the Company and its subsidiaries, if any, for such quarter, prepared in accordance with generally accepted accounting principles (except for required footnotes), all in reasonable detail, subject to changes resulting from year-end audit adjustments and inter-period allocations; and
(c) so long as the Purchaser continues to hold at least 100,000 shares of the Series B Shares (as adjusted for stock splits, combinations, dividends, distributions or recapitalizations), as soon as practicable after the end of each month and in any event within 30 days thereafter, consolidated balance sheets of the Company and its subsidiaries, if any, as of the end of such fiscal year month and consolidated statements of income and members’ equity and of cash flows of the Company flow statements, for such fiscal year, setting forth in each case in comparative form the corresponding figures month and for the preceding current fiscal yearyear to date, all prepared in accordance with generally accepted accounting principles consistently applied (“GAAP”except for required footnotes), all such consolidated statements to be duly certified by such independent public accountants of recognized national standing approved by the Board to prepare such reports;
(b) As soon as available and in any event within forty-five (45) days after the end of each of the first three quarters of each fiscal year of the Company, an unaudited balance sheet of the Company and its Subsidiaries, if any, as of the end of such quarter and the related unaudited statements of income and members’ equity and of cash flows of the Company for the period commencing at the end of the previous fiscal year and ending with the end of such quarter, setting forth in each case in comparative form the corresponding figures for the corresponding period of the preceding fiscal year and the budget for such current year, all in reasonable detail and prepared in accordance with GAAP (detail, subject to changes resulting from year-end audit adjustments and not including all footnotes thereto that may be required in accordance with GAAP);inter-period allocations; and
(cd) Upon request (but not more frequently than so long as the delivery Purchaser continues to hold at least 100,000 shares of the financial statements described in Sections 7.2(a) and 7.2(b)Series B Shares (as adjusted for stock splits, combinations, dividends, distributions or recapitalizations), a statement showing the number of Units of each class as soon as practicable and series of membership interests (including Profits Interests) and securities convertible into or exercisable for Units outstanding at in any event no later than thirty days before the end of the applicable period, the Junior Units issuable upon conversion or exercise of any outstanding securities convertible or exercisable for Junior Units and the exchange ratio or exercise price applicable thereto, and the number of Units not yet issued but reserved for issuance under the Equity Incentive Plan, if any, all in sufficient detail as to permit the Preferred Unit Holders to calculate their respective percentage equity ownership in the Company;
(d) As soon as available and in any event within thirty (30) days after the end of each calendar month, a statement of recognized revenue, bookings and retained earnings on a monthly basis, compared against the corresponding figures from such month from the preceding fiscal year and the budget for such current year; and
(e) Not later than sixty (60) days after December 31 of each year, an annual budget (consisting of projected income statements and quarterly projected cash flow statements reported on a monthly basis) for the subsequent fiscal year.
(e) so long as ASCII Ventures ("ASCII") holds at least 250,000 shares of Series B Shares (as adjusted for stock splits, combinations, dividends, distributions or recapitalizations), and monthly operating budgets for such fiscal year in ASCII is not represented on the Company's Board of Directors, the Company shall give a form representative of ASCII access to board meetings, copies of all notices, minutes, consents and with such detail as other material that the Company provides to its directors, except that the representative may be acceptable excluded from access to any material or meeting or portion thereof if the Company believes that such exclusion is reasonably necessary to preserve the attorney-client privilege, to protect confidential information, or for other similar reasons. ASCII agrees, and any representative of ASCII will agree, to hold in confidence and trust and not use or disclose any confidential information provided to or learned by it in connection with its rights under this letter.
(f) so long as Borders Group, Inc. ("Borders") holds at least 250,000 shares of Series B Shares (as adjusted for stock splits, combinations, dividends, distributions or recapitalizations), and Borders is not represented on the Company's Board of Directors, the Company shall give a majority representative of Borders access to board meetings, copies of all notices, minutes, consents and other material that the Company provides to its directors, except that the representative may be excluded from access to any material or meeting or portion thereof if the Company believes that such exclusion is reasonably necessary to preserve the attorney-client privilege, to avoid conflicts of interest between the Company and Borders, or for other similar reasons. Borders agrees, and any representative of Borders will agree, to hold in confidence and trust and not use or disclose any confidential information provided to or learned by it in connection with its rights under this letter.
(g) so long as H&Q Adobe Ventures ("H&Q") holds at least 250,000 shares of Series B Shares (as adjusted for stock splits, combinations, dividends, distributions or recapitalizations), and H&Q has only one member on the Company's Board of Directors, the Company shall give a representative of H&Q access to board meetings, copies of all notices, minutes, consents and other material that the Company provides to its directors, except that the representative may be excluded from access to any material or meeting or portion thereof if the Company believes that such exclusion is reasonably necessary to preserve the attorney-client privilege, to protect confidential information, or for other similar reasons. H&Q agrees, and any representative of H&Q will agree, to hold in confidence and trust and not use or disclose any confidential information provided to or learned by it in connection with its rights under this letter.
Appears in 1 contract
Samples: Series B Preferred Stock Purchase Agreement (Salon Internet Inc)
Financial Information. The Company will furnish to each Major Holder the information set forth in this Section 7.2; providedPropel agrees that, that the Company shall not be for so long as Motorola is required to furnish such information consolidate Propel's results of operations and financial position or to a Major Holder if account for its investment in Propel under the Board determines in good faith that such Major Holder is a competitor to the Company equity method of accounting (provided that in no event shall Kinnevik (or its Affiliates) or Oak (or its Affiliates) be deemed to be a competitor to the Company and that, as of the Effective Date, Walgreens (and its Affiliates) is deemed to not be a competitor to the Company):
(a) As soon as practicable after the end of each fiscal year of the Company, and in any event within one hundred fifty (150) days thereafter, a copy of the annual audited financial statements for such fiscal year for the Company and its Subsidiaries, if any, including therein balance sheets of the Company and its Subsidiaries, if any, as of the end of such fiscal year and statements of income and members’ equity and of cash flows of the Company for such fiscal year, setting forth in each case in comparative form the corresponding figures for the preceding fiscal year, all prepared determined in accordance with generally accepted accounting principles consistently applied (“GAAP”), all such consolidated statements to be duly certified by such independent public accountants of recognized national standing approved by the Board to prepare such reports;and consistent with SEC reporting requirements):
(bi) Propel shall, and shall cause each of the Propel Affiliates to maintain a system of internal accounting controls that will provide reasonable assurance that: (A) Propel's and such Propel Affiliates' books, records and accounts fairly reflect all transactions and dispositions of assets and (B) the specific objectives of accounting control are achieved.
(ii) Propel shall, and shall cause each of the Propel Affiliates organized in the U.S. to maintain a fiscal year which commences on January 1 and ends on December 31 of each calendar year.
(iii) As soon as available practicable, and in any event within forty-five one (451) Business Day after the end of each monthly accounting close period of Motorola (including the last monthly accounting close period of Motorola of each fiscal year), Propel shall deliver to Motorola a consolidated income statement and balance sheet for Propel for such period and an income statement and balance sheet for each Propel Affiliate which is consolidated with Propel, as the case may be, in such format and detail as Motorola may request.
(iv) As soon as practicable, and in any event within 35 days after the end of each of the first three fiscal quarters of in each fiscal year of Propel and no later than five days before Propel intends to file its Quarterly Financial Statements (as defined below) with the CompanySEC, an unaudited balance sheet Propel shall deliver to Motorola drafts of (A) the Company and its Subsidiaries, if any, as consolidated financial statements of the end of such quarter Propel and the related unaudited statements of income Propel Affiliates (and members’ equity notes thereto) for such periods and of cash flows of the Company for the period commencing at from the end beginning of the previous current fiscal year and ending with to the end of such quarter, setting forth in each case in comparative form for each such fiscal quarter of Propel the corresponding consolidated figures (and notes thereto) for the corresponding period quarter and periods of the preceding previous fiscal year and all in reasonable detail and prepared in accordance with Article 10 of Regulation S-X, and (B) a discussion and analysis by management of Propel's and the budget Propel Affiliates' financial condition and results of operations for such current yearfiscal period, including, without limitation, an explanation of any material adverse change, all in reasonable detail and prepared in accordance with GAAP Item 303(b) of Regulation S-K; provided, however, that Propel will deliver such information at such earlier time upon Motorola's request resulting from Motorola's determination to accelerate the timing of the filing of its financial statements with the SEC. The information set forth in (subject A) and (B) above is herein referred to year-end audit adjustments and not including all footnotes thereto that may be required in accordance with GAAP);
(c) Upon request (but not more frequently as the "QUARTERLY FINANCIAL STATEMENTS." No later than the delivery earlier of (x) three Business Days prior to the date Propel publicly files the Quarterly Financial Statements with the SEC or otherwise makes such Quarterly Financial Statements publicly available or (y) three Business Days prior to the date on which Motorola has notified Propel that it intends to file its quarterly financial statements with the SEC, Propel shall deliver to Motorola the final form of the Quarterly Financial Statements certified by the chief financial statements described officer of Propel as presenting fairly, in Sections 7.2(a) and 7.2(b)), a statement showing the number of Units of each class and series of membership interests (including Profits Interests) and securities convertible into or exercisable for Units outstanding at the end of the applicable periodall material respects, the Junior Units issuable upon conversion or exercise financial condition and results of any outstanding securities convertible or exercisable for Junior Units operations of Propel and the exchange ratio or exercise price applicable thereto, Propel Affiliate; provided that Propel may continue to revise such Quarterly Financial Statements prior to the filing thereof in order to make corrections and the number of Units not yet issued but reserved for issuance under the Equity Incentive Plan, if any, all in sufficient detail non-substantive changes which corrections and changes shall be delivered by Propel to Motorola as to permit the Preferred Unit Holders to calculate their respective percentage equity ownership in the Company;
(d) As soon as available practicable, and in any event within thirty eight hours thereafter; and, PROVIDED, FURTHER, that Motorola and Propel financial Representatives shall actively consult with each other regarding any changes (30whether or not substantive) which Propel may consider making to its Quarterly Financial Statements and related disclosures during the two Business Days immediately prior to any anticipated filing with the SEC, with particular focus on any changes which would have an effect upon Motorola's financial statements or related disclosures. In addition to the foregoing, no Quarterly Financial Statement or any other document which refers, or contains information with respect, to the ownership of Propel by Motorola, the separation of Propel from Motorola or a Distribution shall be filed with the SEC or otherwise made public by Propel or any of the Propel Affiliates without the prior written consent of Motorola.
(v) Propel shall deliver to Motorola as soon as practicable, and in any event within 45 days after the end of each calendar monthfiscal year of Propel and no later than 10 days before Propel intends to file its Annual Financial Statements (as defined below) with the SEC, a statement (A) drafts of recognized revenuethe consolidated financial statements of Propel (and notes thereto) for such year, bookings setting forth in each case in comparative form the consolidated figures (and retained earnings on a monthly basis, compared against notes thereto) for the corresponding figures from such month from the preceding previous fiscal year and all in reasonable detail and prepared in accordance with Regulation S-X and (B) a discussion and analysis by management of Propel's and the budget Propel Affiliates' financial condition and results of operations for such current year, including, without limitation, an explanation of any material adverse change, all in reasonable detail and prepared in accordance with Item 303(a) of Regulation S-K. The information set forth in (A) and (B) above is herein referred to as the "ANNUAL FINANCIAL STATEMENTS." Propel shall deliver to Motorola all revisions to such drafts as soon as any such revisions are prepared or made. No later than the earlier of (1) five Business Days prior to the date Propel publicly files the Annual Financial Statements with the SEC or otherwise makes such Annual Financial Statements publicly available or (2) five Business Days prior to the date on which Motorola has notified Propel that it intends to file its annual financial statements with the SEC, Propel shall deliver to Motorola the final form of the Annual Financial Statements certified by the chief financial officer of Propel as presenting fairly, in all material respects, the financial condition and results of operations of Propel and the Propel Affiliates; provided that Propel may continue to revise such Annual Financial Statements prior to the filing thereof in order to make corrections and non-substantive changes which corrections and changes shall be delivered by Propel to Motorola as soon as practicable, and in any event within eight hours thereafter; and, PROVIDED, FURTHER, that Motorola and Propel financial Representatives shall actively consult with each other regarding any changes (whether or not substantive) which Propel may consider making to its Annual Financial Statements and related disclosures during the three Business Days immediately prior to any anticipated filing with the SEC, with particular focus on any changes which would have an effect upon Motorola's financial statements or related disclosures. In addition to the foregoing, no Annual Financial Statement or any other document which refers, or contains information with respect, to the ownership of Propel by Motorola, the separation of Propel from Motorola or a Distribution shall be filed with the SEC or otherwise made public by Propel or any of the Propel Affiliates without the prior written consent of Motorola. In any event, Propel shall deliver to Motorola, no later than 80 days after the end of each fiscal year of Propel, the final form of the Annual Financial Statements accompanied by an opinion thereon by Propel's independent certified public accountants.
(evi) Not later than sixty (60) days after December 31 Propel shall deliver to Motorola all Quarterly and Annual Financial Statements of each yearPropel Affiliate which is itself required to file financial statements with the SEC or otherwise make such financial statements publicly available, an annual budget and quarterly and monthly operating budgets for such fiscal year in a form and with such financial statements to be provided in the same manner and detail and on the same time schedule as those financial statements of Propel required to be delivered to Motorola pursuant to this SECTION 5.1.
(vii) All information provided by Propel or any of the Propel Affiliates to Motorola pursuant to SECTIONS 5.1(a)(iii) through (vii) inclusive shall be consistent in terms of format and detail and otherwise with Motorola's policies with respect to the application of accounting principles and practices in effect on the date hereof with respect to the provision of such financial information by the Propel Business and/or Propel and the Propel Affiliates, as applicable, to Motorola (and, where appropriate, as presently presented in financial reports to Motorola's Board of Directors), with such changes therein as may be acceptable requested by Motorola from time to a majority time consistent with changes in such accounting principles and practices.
(viii) Propel and each of the DirectorsPropel Affiliates which files information with the SEC shall deliver to Motorola: (A) as soon as the same are prepared, substantially final drafts of: (x) all reports, notices and proxy and information statements to be sent or made available by Propel or any of the Propel Affiliates to their security holders, (y) all regular, periodic and other reports to be filed under Sections 13, 14 and 15 of the Exchange Act (including Reports on Forms 10-K, 10-Q and 8-K and Annual Reports to Shareholders), and (z) all registration statements and prospectuses to be filed by Propel or any of the Propel Affiliates with the SEC or any securities exchange pursuant to the listed company manual (or similar requirements) of such exchange (collectively, the documents identified in clauses (x), (y) and (z) are referred to herein as "PROPEL PUBLIC DOCUMENTS"), and (B) as soon as practicable, but in no event later than four Business Days prior to the date the same are printed, sent or filed, whichever is earliest, current drafts of all such Propel Public Documents; provided that Propel may continue to revise such Propel Public Documents prior to the filing thereof in order to make corrections and non-substantive changes which corrections and changes shall be delivered by Propel to Motorola as soon as practicable, and in any event within eight hours thereafter; and, PROVIDED, FURTHER, that Motorola and Propel financial Representatives shall actively consult with each other regarding any changes (whether or not substantive) which Propel may consider making to any of its Propel Public Documents and related disclosures prior to any anticipated filing with the SEC, with particular focus on any changes which would have an effect upon Motorola's financial statements or related disclosures. In addition to the foregoing, no Propel Public Document or any other document which refers, or contains information with respect, to the ownership of Propel by Motorola, the separation of Propel from Motorola or the Distribution shall be filed with the SEC or otherwise made public by Propel or any of the Propel Affiliates without the prior written consent of Motorola.
(ix) Propel shall, as promptly as practicable, deliver to Motorola copies of all annual and other budgets and financial projections (consistent in terms of format and detail and otherwise with the procedures in effect on the date hereof) relating to Propel on a consolidated basis and shall provide Motorola an opportunity to meet with management of Propel to discuss such budgets and projections.
(x) With reasonable promptness, Propel shall deliver to Motorola such additional financial and other information and data with respect to Propel and the Propel Affiliates and their business, properties, financial positions, results of operations and prospects as from time to time may be reasonably requested by Motorola.
Appears in 1 contract
Samples: Israeli Separation, Initial Public Offering and Distribution Agreement (Propel Inc)
Financial Information. The Until the first to occur of (a) the date on which the Company is required to file a report with the SEC pursuant to Section 13(a) of the Exchange Act, by reason of the Company having registered any of its securities pursuant to Section 12(g) of the Exchange Act or (b) quotations for the Common Stock of the Company are reported by the automated quotations system operated by the National Association of Securities Dealers, Inc. or by an equivalent quotations system or (c) shares of the Common Stock of the Company are listed on a national securities exchange registered under Section 6 of the Exchange Act, the Company will furnish to each Major Holder the information set forth in this Section 7.2; provided, that the Company shall not be required to furnish such information to a Major Holder if the Board determines in good faith that such Major Holder is a competitor to the Company (provided that in no event shall Kinnevik (or its Affiliates) or Oak (or its Affiliates) be deemed to be a competitor to the Company and that, as of the Effective Date, Walgreens (and its Affiliates) is deemed to not be a competitor to the Company):Purchaser:
(ai) As as soon as practicable after the end of each fiscal year of the Companyyear, and in any event within one hundred fifty (150) 120 days thereafter, a copy of the annual audited financial statements for such fiscal year for the Company and its Subsidiaries, if any, including therein consolidated balance sheets of the Company and its Subsidiariessubsidiaries, if any, as of the end of such fiscal year year, and consolidated statements of income operations and members’ equity and consolidated statements of changes in financial position (or equivalent cash flows flow statements if required by the Financial Accounting Standards Board) of the Company and its subsidiaries, if any, for such fiscal year, setting forth in each case in comparative form the corresponding figures for the preceding fiscal year, all prepared in accordance with generally accepted accounting principles consistently applied (“GAAP”)principles, all such consolidated statements to be duly in reasonable detail and, certified by such independent public accountants of recognized national standing approved selected by the Board to prepare such reports;Company, and
(bii) As so long as the Purchasers own an aggregate of at least thirty percent (30%) of the Preferred Shares acquired at the Closings (including any Common Stock issued upon conversion of any Preferred Shares) as soon as available practicable after the end of each month and each quarter (except the last month and last quarter of the fiscal year), and in any event within forty-five (45) days after the end of each of the first three quarters of each fiscal year of the Company30 and 45 days, an unaudited respectively, thereafter, consolidated balance sheet sheets of the Company and its Subsidiariessubsidiaries, if any, as of the end of such quarter month or quarter; and the related unaudited consolidated statements of income operations and members’ equity and consolidated statements of changes in financial position (or equivalent cash flows flow statements if required by the Financial Accounting Standards Board), of the Company and its subsidiaries, if any, for such month or quarter and for the period commencing at the end of the previous current fiscal year and ending to date, prepared in accordance with the end of such quarter, setting forth in each case in comparative form the corresponding figures generally accepted accounting principles (except for the corresponding period of the preceding fiscal year and the budget for such current yearrequired footnotes), all in reasonable detail and prepared in accordance with GAAP (signed, subject to changes resulting from year-end audit adjustments and not including all footnotes thereto that may be required in accordance with GAAP);adjustments, by the principal financial officer or chief executive officer of the Company, and
(ciii) Upon request so long as the Purchasers own an aggregate of at least thirty percent (30%) of the Preferred Shares acquired at the Closings (including any Common Stock issued upon conversion of any Preferred Shares) as soon as practicable after its adoption or approval by the Company's Board of Directors, but not more frequently later than the delivery commencement of the financial statements described in Sections 7.2(a) such fiscal year, an annual plan for each fiscal year which shall include monthly capital and 7.2(b))operating expense budgets, a statement showing the number of Units of cash flow statements, projected balance sheets and profit and loss projections for each class such month and series of membership interests (including Profits Interests) and securities convertible into or exercisable for Units outstanding at the end of the applicable periodyear, the Junior Units issuable upon conversion or exercise of any outstanding securities convertible or exercisable for Junior Units and the exchange ratio or exercise price applicable thereto, and the number of Units not yet issued but reserved for issuance under the Equity Incentive Plan, if any, all itemized in sufficient such detail as to permit the Preferred Unit Holders to calculate their respective percentage equity ownership in the Company;
(d) As soon as available and in any event Board of Directors may reasonably determine. In addition, within thirty (30) 30 days after the end of each calendar month, a statement of recognized revenue, bookings and retained earnings on a monthly basis, compared against the corresponding figures from such month from the preceding fiscal year and the budget for such current year; and
(e) Not later than sixty (60) days after December 31 of each year, an annual budget and quarterly and monthly operating budgets for such fiscal year in the Company will provide the Purchasers with a form and with such detail as may be acceptable to a majority capitalization table showing (i) all stock of the DirectorsCompany issued and outstanding for each class and series of stock and (ii) all options and warrants outstanding.
Appears in 1 contract
Financial Information. (a) The Company will make and keep books, records and accounts, which, in reasonable detail, accurately and fairly reflect the transactions and dispositions of its assets, and devise and maintain a system for internal accounting controls sufficient to provide reasonable assurances that (i) transactions are executed in accordance with management's general or specific authorization, (ii) transactions are recorded as necessary to permit preparation of financial statements in conformity with generally accepted accounting principles or any other criteria applicable to such statements and to maintain accountability for assets, (iii) access to assets is permitted only in accordance with management's general or specific authorization, and (iv) the recorded accountability for assets is compared with the existing assets at reasonable intervals and appropriate actions taken with respect to any differences.
(b) The Company will furnish to each Major Holder the information set forth in this Section 7.2; provided, that the Company shall not be required to furnish such information to a Major Holder if the Board determines in good faith that such Major Holder is a competitor following reports to the Company (provided that in no event shall Kinnevik (or its Affiliates) or Oak (or its Affiliates) be deemed to be a competitor to Holders at the Company and that, as of the Effective Date, Walgreens (and its Affiliates) is deemed to not be a competitor to the Company):times indicated.
(ai) As soon as practicable after the end of each fiscal year of the Companyyear, and in any event within one hundred fifty (150) 90 days thereafter, a copy of the annual audited financial statements for such fiscal year for the Company and its Subsidiaries, if any, including therein consolidated balance sheets sheet of the Company and its Subsidiaries, if any, subsidiaries as of the end of such fiscal year year, and statements a consolidated statement of income and members’ equity and a consolidated statement of cash flows changes in financial position of the Company for such fiscal year, prepared in accordance with generally accepted accounting principles and setting forth in each case in comparative form the corresponding figures for of the preceding previous fiscal year, all in reasonable detail including all supporting schedules and comments and accompanied by the unqualified opinion of independent public accountants of recognized standing selected by the Company, which opinion shall state that such financial statements were prepared in accordance with generally accepted accounting principles consistently applied on a basis consistent with that of the preceding year, fairly present the financial condition of the Company and its subsidiaries (“GAAP”)if any) as of the date thereof and the period covered thereby, all such consolidated statements to be duly certified and that the audit by such independent public accountants of recognized national standing approved by the Board to prepare such reports;has been made in accordance with generally accepted auditing standards.
(bii) As soon as available practicable after the end of the first, second and third quarterly accounting periods in each fiscal year of the Company and in any event within forty-five (45) 45 days after the end of each of the first three quarters of each fiscal year of the Companythereafter, an unaudited a consolidated balance sheet of the Company and its Subsidiaries, subsidiaries (if any, ) as of the end of each such quarter quarterly period, and the related unaudited statements a consolidated statement of income and members’ equity and a consolidated statement of cash flows changes in financial condition of the Company and its subsidiaries (if any) for such period and for the period commencing at the end of the previous current fiscal year and ending to date, prepared (although unaudited) in accordance with the end of such quartergenerally accepted accounting principles, setting forth in each case in comparative form the corresponding figures for (unless such disclosure would violate applicable federal or state securities laws) comparisons to the corresponding period of to the preceding previous fiscal year and the budget for such current year, all in reasonable detail and prepared in accordance with GAAP (signed, subject to changes resulting from year-end audit adjustments and not including all footnotes thereto that may be required in accordance with GAAP);adjustments, by the Chief Financial Officer of the Company.
(c) Upon request (but not more frequently than Unless such disclosure would violate applicable federal or state securities laws, the delivery of Company will furnish to each Holder requesting the financial statements described in Sections 7.2(a) and 7.2(b))same, a statement showing the number of Units of each class and series of membership interests (including Profits Interests) and securities convertible into or exercisable for Units outstanding at as soon as practicable after the end of the applicable periodeach month, the Junior Units issuable upon conversion or exercise of any outstanding securities convertible or exercisable for Junior Units and the exchange ratio or exercise price applicable thereto, and the number of Units not yet issued but reserved for issuance under the Equity Incentive Plan, if any, all in sufficient detail as to permit the Preferred Unit Holders to calculate their respective percentage equity ownership in the Company;
(d) As soon as available and in any event within thirty 45 days thereafter, (30i) days after a consolidated balance sheet of the Company and its subsidiaries (if any) as of the end of each calendar such month, and a consolidated statement of recognized revenueincome, bookings stockholders' equity and retained earnings changes in financial position for the month and for the current fiscal year to date, prepared in accordance with generally accepted accounting principles setting forth in each case comparisons to the corresponding periods of the previous fiscal year, and (ii) unless such disclosure would violate applicable federal or state securities laws, a pro forma cash flow statement of anticipated cash flow for the next succeeding 90 day period of the Company and its subsidiaries (if any) prepared on a monthly basis, compared against consolidated basis setting forth in each case comparisons to the corresponding figures from such month from periods for the preceding previous fiscal year and the budget for such current year; and
(e) Not later than sixty (60) days after December 31 of each year, an annual budget all in reasonable detail and quarterly and monthly operating budgets for such fiscal year in a form and with such detail as may be acceptable signed, subject to a majority changes resulting from year-end audit adjustments, by the Chief Financial Officer of the DirectorsCompany and accompanied by the statement of such officer explaining any material differences between budgeted and actual results.
Appears in 1 contract
Samples: 12% Convertible Redeemable Preferred Stock Purchase Agreement (Malone Arthur L Jr)
Financial Information. The Company CNSI will furnish the following reports to each Major Holder the information set forth in this Section 7.2; provided, that the Company shall not be required to furnish such information to a Major Holder if the Board determines in good faith that such Major Holder is a competitor to the Company (provided that in no event shall Kinnevik (or its Affiliates) or Oak (or its Affiliates) be deemed to be a competitor to the Company and that, as of the Effective Date, Walgreens (and its Affiliates) is deemed to not be a competitor to the Company):VPLP:
(a1) As soon as practicable after the end of each fiscal year of the Companyyear, and in any event within one hundred fifty ninety (15090) days thereafter, a copy consolidated balance sheet of the annual audited financial statements for such fiscal year for the Company and its Subsidiaries, if any, including therein balance sheets of the Company and its Subsidiaries, if anyCNSI, as of at the end of such fiscal year year, and consolidated statements of income operations, accumulated earnings and members’ equity and of cash flows of the Company CNSI for such fiscal year, setting forth in each case in comparative form the corresponding figures for the preceding fiscal year, all prepared in accordance with generally accepted accounting principles consistently applied (“GAAP”)and setting forth in each case in comparative form the figures for the previous fiscal year, all such consolidated statements to be duly in reasonable detail audited (without scope limitations imposed by CNSI) and certified by such independent public accountants of recognized national standing approved by the Board to prepare such reportsstanding;
(b2) As soon as available practicable after the end of the first, second and third quarterly accounting periods in each fiscal year, and in any event within forty-five (45) days after the end of each of the first three quarters of each fiscal year of the Companythereafter, an a consolidated, unaudited balance sheet of the Company and its Subsidiaries, if any, CNSI as of the end of each such quarter quarterly period, and the related consolidated, unaudited statements of income operations, accumulated earnings and members’ equity and of cash flows of the Company CNSI for such period and for the period commencing at current fiscal year to date, prepared in accordance with generally accepted accounting principles consistently applied and setting forth in comparative form the end figures for the corresponding periods of the previous fiscal year year, except that the unaudited financial statements need not contain footnotes and ending with the shall be subject to changes resulting from year-end of such quarteraudit adjustments, and setting forth in each case in comparative form any events which could reasonably be expected to have an adverse effect upon CNSI's finances or the corresponding figures for the corresponding period results of the preceding fiscal year and the budget for such current yearits operations, all in reasonable detail and prepared in accordance with GAAP (subject to year-end audit adjustments and not including all footnotes thereto that may be required in accordance with GAAP)certified by the principal financial or accounting officer of CNSI;
(c3) Upon request So long as CNSI is subject to the reporting requirements of the Exchange Act, in lieu of the documents required by Sections 4.1 (1) and (2) and within the time periods required in Sections 4.1 (1) and (2) for the furnishing of financial information or as soon as otherwise available, whichever is earlier, copies of all documents filed by CNSI with the SEC, including, but not more frequently than the delivery of the financial statements described in Sections 7.2(a) and 7.2(b))limited to, a statement showing the number of Units of each class and series of membership interests (including Profits Interests) and securities convertible into its reports filed on Form 10-K, Form 10-Q, Form 8-K or exercisable for Units outstanding at the end of the applicable period, the Junior Units issuable upon conversion any successor form or exercise of any outstanding securities convertible or exercisable for Junior Units and the exchange ratio or exercise price applicable thereto, and the number of Units not yet issued but reserved for issuance under the Equity Incentive Plan, if any, all in sufficient detail as to permit the Preferred Unit Holders to calculate their respective percentage equity ownership in the Companyforms;
(d4) As soon as available information and data on any material adverse changes in or any event within thirty or condition which materially adversely affects or could materially adversely affect the business, operations, properties or plans of CNSI;
(305) days after Immediately upon becoming aware of any condition or event which constitutes a breach of the end Credit Documents, or any agreement contemplated hereby, written notice specifying the nature and period of each calendar month, a statement of recognized revenue, bookings and retained earnings on a monthly basis, compared against the corresponding figures from such month from the preceding fiscal year and the budget for such current yearexistence thereof an what action CNSI is taking or proposes to take with respect thereto; and
(e) Not later than sixty (60) days after December 31 of each year, an annual budget and quarterly and monthly operating budgets for such fiscal year in a form and with such detail as may be acceptable to a majority of the Directors.
Appears in 1 contract
Financial Information. (a) The Company will furnish provide the following reports to each Major Holder the information set forth in this Section 7.2; provided, that the Company shall not be required to furnish such information to a Major Holder if the Board determines in good faith that such Major Holder is a competitor to the Company of at least Three Hundred Forty-Three Thousand Seventy-Nine (provided that in no event shall Kinnevik (or its Affiliates343,079) or Oak (or its Affiliates) be deemed to be a competitor to the Company and that, as shares of the Effective Date, Walgreens (and its Affiliates) is deemed to not be a competitor to Company’s Preferred Stock and/or the Company’s Common Stock issued upon conversion thereof (appropriately adjusted for recapitalizations, stock splits and the like) (each a “Financial Holder”):
(ai) As soon as practicable after the end of each fiscal year, and in any event within one hundred twenty (120) days thereafter, consolidated balance sheets of the Company, as of the end of such fiscal year, and consolidated statements of operations and of cash flows and stockholders’ equity of the Company for such year, prepared in accordance with generally accepted accounting principles, all in reasonable detail and audited by independent public accountants of national standing selected by the Company and approved by the Board of Directors.
(ii) As soon as practicable after the end of the first, second and third quarterly accounting periods in each fiscal year of the Company, and in any event within one hundred fifty forty-five (15045) days thereafter, a copy of the annual audited financial statements for such fiscal year for the Company and its Subsidiaries, if any, including therein consolidated balance sheets sheet of the Company and its Subsidiaries, if any, as of the end of each such fiscal year quarterly period, and consolidated statements of income and members’ equity operations and of cash flows of the Company for such fiscal year, setting forth in each case in comparative form the corresponding figures period and for the preceding current fiscal yearyear to date, all prepared in accordance with generally accepted accounting principles consistently applied (“GAAP”other than for accompanying notes), all such consolidated statements to be duly certified by such independent public accountants of recognized national standing approved by the Board to prepare such reports;
(b) As soon as available and in any event within forty-five (45) days after the end of each of the first three quarters of each fiscal year of the Company, an unaudited balance sheet of the Company and its Subsidiaries, if any, as of the end of such quarter and the related unaudited statements of income and members’ equity and of cash flows of the Company for the period commencing at the end of the previous fiscal year and ending with the end of such quarter, setting forth in each case in comparative form the corresponding figures for the corresponding period of the preceding fiscal year and the budget for such current year, all in reasonable detail and prepared in accordance with GAAP (subject to changes resulting from year-end audit adjustments and not including all footnotes thereto that may be required adjustments, in accordance with GAAP);reasonable detail.
(ciii) Upon request (but not more frequently than the delivery of the financial statements described in Sections 7.2(a) and 7.2(b)), a statement showing the number of Units of each class and series of membership interests (including Profits Interests) and securities convertible into or exercisable for Units outstanding at the end of the applicable period, the Junior Units issuable upon conversion or exercise of any outstanding securities convertible or exercisable for Junior Units and the exchange ratio or exercise price applicable thereto, and the number of Units not yet issued but reserved for issuance under the Equity Incentive Plan, if any, all in sufficient detail as to permit the Preferred Unit Holders to calculate their respective percentage equity ownership in the Company;
(d) As soon as available and in any event within At least thirty (30) days after prior to the end beginning of each calendar monthfiscal year, a statement budget adopted by the Company’s Board of recognized revenueDirectors for the fiscal year, bookings and retained earnings on and, as soon as prepared, any other budgets or revised budgets prepared by the Company.
(iv) Only upon the reasonable request of a Financial Holder, a monthly basis, compared against the corresponding figures from such month from the preceding fiscal year and the budget for such current year; andsales revenue report.
(eb) Not later than sixty Notwithstanding the foregoing, the Company is not required to disclose trade secrets or confidential information pursuant to this Section 3.
(60c) days after December 31 The covenants set forth in this Section 3 shall terminate and be of each year, an annual budget and quarterly and monthly operating budgets for no further force or effect upon the consummation of a firm commitment underwritten public offering or at such fiscal year in a form and with such detail time as may be acceptable the Company is required to a majority file reports pursuant to Section 13 or 15(d) of the DirectorsExchange Act, whichever shall occur first.
Appears in 1 contract
Financial Information. The Company agrees to provide the Purchasers with audited consolidated balance sheets and audited consolidated statements of income and changes in financial position within 60 days of the Closing, for the fiscal years ending April 30, 1997 and April 30, 1998. In addition, until the first to occur of (a) the date on which the Company is required to file a report with the SEC pursuant to the Exchange Act by reason of the Company having registered any of its securities pursuant to Section 12(g) of the Exchange Act or (b) quotations for the Common Stock of the Company are reported by the automated quotations systems operated by the National Association of Securities Dealers, Inc. or by an equivalent quotations system or (c) shares of the Common Stock of the Company are listed -on a national securities exchange registered under Section 6 of the Exchange Act, the Company will furnish to each Major Holder the information set forth in this Section 7.2; provided, that the Company shall not be required to furnish such information to a Major Holder if the Board determines in good faith that such Major Holder is a competitor to the Company (provided that in no event shall Kinnevik (or its Affiliates) or Oak (or its Affiliates) be deemed to be a competitor to the Company and that, as of the Effective Date, Walgreens (and its Affiliates) is deemed to not be a competitor to the Company):Purchaser:
(ai) As as soon as practicable after the end of each fiscal year of the Companyyear, and in any event within one hundred fifty (150) 90 days thereafter, a copy of the annual audited financial statements for such fiscal year for the Company and its Subsidiaries, if any, including therein consolidated balance sheets of the Company and its Subsidiariessubsidiaries, as at the end of such fiscal year, and audited consolidated statements of income and audited consolidated statements of changes in financial position (or equivalent cash flow statements if anyrequired by the Financial Accounting Standards Board) of the Company and its subsidiaries, for such year, prepared in accordance with GAAP, all in reasonable detail and, certified by independent public accountants of recognized national standing selected by the Company, and
(ii) as soon as practicable after the end of each month (except the last month of the fiscal year), and in any event within 30 days thereafter, consolidated balance sheets of the Company and its subsidiaries, as of the end of such fiscal year month; and consolidated statements of income and members’ equity and consolidated statements of changes in financial position (or equivalent cash flows of flow statements if required by the Company Financial Standards Board), for such fiscal year, setting forth in each case in comparative form the corresponding figures month and for the preceding current fiscal yearyear to date, all prepared in accordance with generally accepted accounting principles consistently applied GAAP (“GAAP”), all such consolidated statements to be duly certified by such independent public accountants of recognized national standing approved by the Board to prepare such reports;
(b) As soon as available and in any event within forty-five (45) days after the end of each of the first three quarters of each fiscal year of the Company, an unaudited balance sheet of the Company and its Subsidiaries, if any, as of the end of such quarter and the related unaudited statements of income and members’ equity and of cash flows of the Company expect for the period commencing at the end of the previous fiscal year and ending with the end of such quarter, setting forth in each case in comparative form the corresponding figures for the corresponding period of the preceding fiscal year and the budget for such current yearrequired footnotes), all in reasonable detail and prepared in accordance with GAAP (signed, subject to changes resulting from year-end audit adjustments and not including all footnotes thereto that may be required in accordance with GAAP);adjustments, by the principal financial officer or chief executive officer of the Company, and
(ciii) Upon request (as soon as practicable after its adoption or approval by the Company's Board of Directors, but not more frequently later than the delivery commencement of the financial statements described in Sections 7.2(a) such fiscal year, an annual plan for each fiscal year which shall include quarterly capital and 7.2(b))operating expense budgets, a statement showing the number of Units of cash flow statements, projected balance sheets and profit and loss projections for each class such quarter and series of membership interests (including Profits Interests) and securities convertible into or exercisable for Units outstanding at the end of the applicable period, the Junior Units issuable upon conversion or exercise of any outstanding securities convertible or exercisable for Junior Units and the exchange ratio or exercise price applicable thereto, and the number of Units not yet issued but reserved for issuance under the Equity Incentive Plan, if any, all in sufficient detail as to permit the Preferred Unit Holders to calculate their respective percentage equity ownership in the Company;
(d) As soon as available and in any event within thirty (30) days after the end of each calendar month, a statement of recognized revenue, bookings and retained earnings on a monthly basis, compared against the corresponding figures from such month from the preceding fiscal year and the budget for such current year; and
(e) Not later than sixty (60) days after December 31 of each year, an annual budget and quarterly and monthly operating budgets for such fiscal year itemized in a form and with such detail as the Board of Directors may be acceptable to a majority of the Directorsreasonably determine.
Appears in 1 contract
Financial Information. The During the term of this Agreement, the Company will shall furnish to each Major Holder the information set forth in this Section 7.2; provided, that the Company shall not be required to furnish such information to a Major Holder if the Board determines in good faith that such Major Holder is a competitor to the Company (provided that in no event shall Kinnevik (or its Affiliates) or Oak (or its Affiliates) be deemed to be a competitor to the Company and that, as of the Effective Date, Walgreens (and its Affiliates) is deemed to not be a competitor to Stockholders by delivery in the Company):manner specified in Section 11.1:
(a) As as soon as practicable after the end of each fiscal year of the Company, and in any event within one hundred fifty (150) days thereafter, a copy of the annual audited financial statements for such fiscal year for the Company and its Subsidiaries, if any, including therein balance sheets of the Company and its Subsidiaries, if any, as of the end of such fiscal year and statements of income and members’ equity and of cash flows of the Company for such fiscal year, setting forth in each case in comparative form the corresponding figures for the preceding fiscal year, all prepared in accordance with generally accepted accounting principles consistently applied (“GAAP”), all such consolidated statements to be duly certified by such independent public accountants of recognized national standing approved by the Board to prepare such reports;
(b) As soon as available and in any event within forty-five (45) days after the end close of each calendar quarter, beginning with the current calendar quarter, a balance sheet of the first three quarters Company as of the close of each such calendar quarter, and statements of operations and cash flows for the calendar quarter then ended and that portion of the fiscal year then ended, all prepared in accordance with generally accepted accounting principles applied on a basis consistent with that of the preceding calendar quarter or containing disclosure of the effect on the financial position or results of operations of any change in the application of accounting principles and practices during the calendar quarter, and certified by the Company's chief executive officer and chief financial officer to be true and accurate;
(b) as soon as practicable, and in any event within ninety (90) days, after the close of the fiscal year of the Company, beginning with the close of the current fiscal year, an unaudited audited balance sheet of the Company and its Subsidiaries, if any, as of the end close of such quarter and the related unaudited statements of income and members’ equity and of cash flows of the Company for the period commencing at the end of the previous fiscal year and ending with audited financial statements of operations, shareholders equity, and cash flows for the end of such quarterfiscal year then ended, including the notes thereto, all in reasonable detail setting forth in each case in comparative form the corresponding figures for the corresponding period of the preceding fiscal year and the budget for such current year, all in reasonable detail and prepared in accordance with GAAP (subject generally accepted accounting principles applied on a basis consistent with that of the preceding year or containing disclosure of the effect on the financial position or results of operation of any change in the application of accounting principles and practices during the year, and accompanied by a report thereon by a public accounting firm of national reputation containing an opinion that is not qualified with respect to year-end audit adjustments and scope limitations imposed by the Company or with respect to accounting principles followed by the Company not including all footnotes thereto that may be required in accordance with GAAP)generally accepted accounting principles;
(c) Upon request (but not more frequently than the delivery of the financial statements described in Sections 7.2(a) and 7.2(b))from time to time upon completion thereof, a statement showing the number of Units of each class and series of membership interests (including Profits Interests) and securities convertible into or exercisable for Units outstanding at the end of the applicable period, the Junior Units issuable upon conversion or exercise of any outstanding securities convertible or exercisable for Junior Units and the exchange ratio or exercise price applicable thereto, and the number of Units not yet issued but reserved for issuance under the Equity Incentive Plan, if any, all in sufficient detail as to permit the Preferred Unit Holders to calculate their respective percentage equity ownership in the Company;
(d) As soon as available and in any event within thirty (30) days after the end close of each calendar monthfiscal year, a statement of recognized revenuebeginning with the current fiscal year, bookings and retained earnings on a monthly basis, compared against the corresponding figures from such month from the preceding fiscal year and the an annual budget for such current the operations of the Company for the following fiscal year; and
(ed) Not later than sixty (60) days after December 31 of each year, an annual budget from time to time such other financial and quarterly and monthly operating budgets for such fiscal year in other information as a form and with such detail as Stockholder may be acceptable to a majority of the Directorsreasonably request.
Appears in 1 contract
Samples: Securityholders Agreement (Endeavor Pharmaceuticals Inc)
Financial Information. The Company will furnish to each Major Holder the information set forth in this Section 7.2; provided, that the Company shall not be required to furnish such information to a Major Holder if the Board determines in good faith that such Major Holder is a competitor to the Company (provided that in no event shall Kinnevik (or its Affiliates) or Oak (or its Affiliates) be deemed to be a competitor to the Company and that, as of the Effective Date, Walgreens (and its Affiliates) is deemed to not be a competitor to the Company):
(a) As soon as practicable Any financial information prepared pursuant to this Section 9.5 shall be prepared from the books and records of the Company in accordance with generally accepted accounting principles, shall accurately reflect the books, records and accounts of the Company, and shall be complete and correct in all material respects.
(b) Within ninety (90) days after the end of each fiscal year Fiscal Year, the Board of the Company, and in any event within one hundred fifty (150) days thereafter, Managers shall cause to be prepared a copy of the annual audited financial statements for such fiscal year for the Company and its Subsidiaries, if any, including therein consolidated balance sheets sheet of the Company and its Subsidiaries, if any, as of the end of such fiscal year and statements the related consolidated statement of income operations and members’ equity and of cash flows of the Company for such fiscal year, setting forth in each case in comparative form the corresponding figures for the preceding fiscal yearFiscal Year then ended, all prepared in accordance with generally accepted accounting principles consistently applied (“GAAP”), all such consolidated statements to be duly and certified by such a firm of independent public accountants of recognized national standing approved selected by the Board of Managers, subject to prepare such reports;Section 6.7 hereof, in each case with comparative statements for the prior Fiscal Year.
(bc) As soon as available and in any event within Within forty-five (45) days after the end of each of the first three quarters second fiscal quarter of each fiscal year Fiscal Year, the Board of the Company, an unaudited Managers shall cause to be prepared a consolidated balance sheet of the Company and its Subsidiariesthe related consolidated statement of operations and cash flows, if anyunaudited but prepared in accordance with generally accepted accounting principles and certified by the Chief Financial Officer of the Company, as of the end of such second fiscal quarter and the related unaudited statements of income and members’ equity and of cash flows of the Company for the period commencing at from the beginning of the Fiscal Year to the end of the previous second fiscal year and ending with the end of such quarter, setting forth in each case in with comparative form the corresponding figures statements for the corresponding comparable period of the preceding fiscal year and the budget for such current year, all in reasonable detail and prepared in accordance with GAAP (subject to year-end audit adjustments and not including all footnotes thereto that may be required in accordance with GAAP);
(c) Upon request (but not more frequently than the delivery of the financial statements described in Sections 7.2(a) and 7.2(b)), a statement showing the number of Units of each class and series of membership interests (including Profits Interests) and securities convertible into or exercisable for Units outstanding at the end of the applicable period, the Junior Units issuable upon conversion or exercise of any outstanding securities convertible or exercisable for Junior Units and the exchange ratio or exercise price applicable thereto, and the number of Units not yet issued but reserved for issuance under the Equity Incentive Plan, if any, all in sufficient detail as to permit the Preferred Unit Holders to calculate their respective percentage equity ownership in the Company;prior Fiscal Year.
(d) As soon The Chief Executive Officer of the Company shall provide OM(US)H with regular financial reporting, reconciling actual expenses against the Company’s Approved Budget, in a format reasonably requested by OM(US)H. Any changes to the previously Approved Budget, if approved by OM(US)H, shall be reflected in the next succeeding monthly report of the Company and will be shown as available and in any event within thirty (30) days after variances to the end initial Approved Budget. The Chief Executive Officer of each calendar month, a statement of recognized revenue, bookings and retained earnings the Company shall be responsible for delivering to OM(US)H on a monthly basis, compared against basis all other financial reporting regarding the corresponding figures Company that is requested by OM(US)H from such month from the preceding fiscal year and the budget for such current year; andtime to time.
(e) Not later than sixty (60) days after December 31 The Board of each yearManagers shall, an annual budget and quarterly shall cause the Officers and monthly operating budgets for such fiscal year in a form and with such detail as may be acceptable to a majority employees of the DirectorsCompany to, cooperate with the Company’s firm of independent public accountants, the Board of Managers, Officers and employees of the Company and any authorized agent of the Company in (i) the preparation of the audited and unaudited financial statements of the Company described in this Section 9.5 and (ii) any valuation of the Company performed for any reason. The Board of Managers shall, and shall cause the Officers and employees of the Company to, comply with any legal or regulatory requirements related to the Company’s affiliation with Old Mutual, including reconciliation between U.S. generally accepted accounting principles and International Financial Accounting Standards.
Appears in 1 contract
Samples: Limited Liability Company Agreement (OM Asset Management LTD)
Financial Information. The Company will furnish mail the following reports to each Major Holder the information set forth in this Section 7.2; provided, that the Company shall not be required to furnish such information to a Major Holder if the Board determines in good faith that such Major Holder Buyer for so long as Buyer is a competitor to holder of any Share:
(i) As soon as practicable after the end of each quarterly fiscal period in each fiscal year of the Company (provided that other than the last quarterly fiscal period of each such fiscal year), and in no any event shall Kinnevik within forty-five (or its Affiliates45) or Oak days thereafter, duplicate copies of (or its Affiliatesi) be deemed to be a competitor to consolidated balance sheet of the Company as at the end of such quarter, and that(ii) statements of income, as changes in shareholder's equity and cash flows of the Effective DateCompany for such quarter and (in the case of the second and third quarters) for the portion of the fiscal year ending with such quarter), Walgreens (setting forth in each case in comparative form the figures for the corresponding periods in the previous fiscal year, all in reasonable detail, prepared in accordance with generally accepted accounting principles applicable to quarterly financial statements generally, and its Affiliates) is deemed certified as complete and correct, subject to not be changes resulting from year-end adjustments, by a competitor to senior financial officer of the Company):, and accompanied by the certificate required by this Agreement.
(aii) As soon as practicable after the end of each fiscal year of the Company, and in any event within one hundred fifty ninety (15090) days thereafter, duplicate copies of (i) a copy of the annual audited financial statements for such fiscal year for the Company and its Subsidiaries, if any, including therein balance sheets sheet of the Company and its Subsidiaries, if any, as of at the end of such fiscal year year, and (ii) consolidated statements of income and members’ income, changes in shareholders' equity and of cash flows of the Company for such fiscal year, setting forth in each case in comparative form the corresponding figures for the preceding previous fiscal year, all in reasonable detail, prepared in accordance with generally accepted accounting principles consistently applied and accompanied by (“GAAP”), all such consolidated statements to be duly iii) an opinion thereon of independent certified by such independent public accountants of recognized national standing approved selected by the Board to prepare Company, which opinion shall, without qualification, state that such reports;financial statements present fairly, in all material respects, the financial position of the Company being reported upon and its results of operations and cash flows and have been prepared in conformity with generally accepted accounting principles, and that the examination of such accountants in connection with such financial statements has been made in accordance with generally accepted auditing standards, and that such audit provides a reasonable basis for such opinion in the circumstances, and (iv) certification by a senior financial officer of the Company that such financial statements are complete and correct.
(biii) As soon as available and Promptly, but in any event within forty-not more than five (455) business days after the end receipt thereof, a copy of each other report submitted to the Company by independent certified public accountants in connection with any annual, interim or special audit made by them of the first three quarters of each fiscal year books of the Company.
(iv) Promptly upon their becoming available, an unaudited balance sheet one copy of each financial statement, report, notice or proxy statement sent by the Company to stockholders generally, and of each regular or periodic report and any registration statement, prospectus or written communication (other than transmittal letters), and in each amendment thereto, in respect thereof filed by the Company with, or received by the Company in connection therewith from, the National Association of Securities Dealers, any securities exchange or the Securities and Exchange Commission or any successor agency.
(v) For so long as Buyer is eligible to receive reports under this Section 7B(a), it shall also have the right, at its expense, to visit and inspect any of the properties of the Company or any of its subsidiaries, to examine their books of account and its Subsidiariesrecords, if anyto discuss their affairs, as finances and accounts with their officers and accountants and to consult with and advise their directors and officers on the management of the end of such quarter and the related unaudited statements of income and members’ equity and of cash flows of the Company for the period commencing at the end of the previous fiscal year and ending with the end of such quarter, setting forth in each case in comparative form the corresponding figures for the corresponding period of the preceding fiscal year and the budget for such current yearbusiness, all in at such reasonable detail times and prepared in accordance with GAAP (subject to year-end audit adjustments and not including all footnotes thereto that may be required in accordance with GAAP);
(c) Upon request (but not more frequently than the delivery of the financial statements described in Sections 7.2(a) and 7.2(b)), a statement showing the number of Units of each class and series of membership interests (including Profits Interests) and securities convertible into or exercisable for Units outstanding at the end of the applicable period, the Junior Units issuable upon conversion or exercise of any outstanding securities convertible or exercisable for Junior Units and the exchange ratio or exercise price applicable thereto, and the number of Units not yet issued but reserved for issuance under the Equity Incentive Plan, if any, all in sufficient detail as to permit the Preferred Unit Holders to calculate their respective percentage equity ownership in the Company;
(d) As soon as available and in any event within thirty (30) days after the end of each calendar month, a statement of recognized revenue, bookings and retained earnings on a monthly basis, compared against the corresponding figures from such month from the preceding fiscal year and the budget for such current year; and
(e) Not later than sixty (60) days after December 31 of each year, an annual budget and quarterly and monthly operating budgets for such fiscal year in a form and with such detail often as may be acceptable reasonably requested; PROVIDED, HOWEVER, that the Company shall not be obligated to provide any information that it reasonably considers to be a majority of the Directorstrade secret or to be confidential information.
Appears in 1 contract
Financial Information. The Company will Lessee agrees to furnish to each Major Holder Lessor during --------------------- the information set forth in this Section 7.2; provided, that the Company shall not be required to furnish such information to a Major Holder if the Board determines in good faith that such Major Holder is a competitor to the Company (provided that in no event shall Kinnevik (or its Affiliates) or Oak (or its Affiliates) be deemed to be a competitor to the Company and that, as of the Effective Date, Walgreens (and its Affiliates) is deemed to not be a competitor to the Company):Term:
(ai) As soon as practicable after the end of each fiscal year of the Company, and in any event within one hundred fifty (150) days thereafter, a copy of the annual audited financial statements for such fiscal year for the Company and its Subsidiaries, if any, including therein balance sheets of the Company and its Subsidiaries, if any, as of the end of such fiscal year and statements of income and members’ equity and of cash flows of the Company for such fiscal year, setting forth in each case in comparative form the corresponding figures for the preceding fiscal year, all prepared in accordance with generally accepted accounting principles consistently applied (“GAAP”), all such consolidated statements to be duly certified by such independent public accountants of recognized national standing approved by the Board to prepare such reports;
(b) As soon as available and in any event within forty-five (45) 60 days after the end of each of the first three fiscal quarters of in each fiscal year of the CompanyLessee and Guarantor, an unaudited consolidated balance sheet sheets of the Company and its Subsidiaries, if any, Guarantor as of the end of such quarter and the related unaudited statements of income and members’ income, shareholders' equity and changes in financial condition of cash flows of the Company Guarantor for the period commencing at the end of the previous fiscal year and ending with the end of such quarter, together with the unaudited statements of Lessee, setting forth in each case in comparative form the corresponding figures for the corresponding period of the in such other preceding fiscal year and the budget for such current year, all in reasonable detail and prepared in accordance with GAAP (generally accepted accounting principles and practices, provided -------- that so long as such Person is subject to yearthe reporting provisions of the Securities Exchange Act of 1934 a copy of Lessees or Guarantor's Form 10-end audit adjustments and not including all footnotes thereto that may be required in accordance with GAAP)Q will satisfy this requirement as to such entity;
(cii) Upon request (but not more frequently than the delivery of the financial statements described in Sections 7.2(a) and 7.2(b)), a statement showing the number of Units of each class and series of membership interests (including Profits Interests) and securities convertible into or exercisable for Units outstanding at the end of the applicable period, the Junior Units issuable upon conversion or exercise of any outstanding securities convertible or exercisable for Junior Units and the exchange ratio or exercise price applicable thereto, and the number of Units not yet issued but reserved for issuance under the Equity Incentive Plan, if any, all in sufficient detail as to permit the Preferred Unit Holders to calculate their respective percentage equity ownership in the Company;
(d) As soon as available and in any event within thirty (30) 120 days after the end of each calendar monthfiscal year of Lessee and Guarantor, a statement copy of recognized revenuethe annual report for such year for Guarantor, bookings consolidated balance sheets of Guarantor as of the end of such fiscal year and retained earnings on a monthly basisrelated statements of income, compared against shareholders' equity and changes in financial condition of Guarantor for such fiscal year, together with the corresponding figures from such month from unaudited statements of Lessee, in comparative form with the preceding fiscal year year, and in the budget for case of Guarantor's consolidated statements, certified by independent certified public accountants as having been prepared in accordance with generally accepted accounting principles and practices consistently applied (except as noted therein), provided that so long as such current Person is -------- subject to the report provisions of the Securities Exchange Act of 1934 a copy of Lessee's or Guarantor's annual report on Form 10-K will satisfy this requirement as to such entity;
(iii) accompanying the annual financial statements described in Section 24(b), an Officers' Certificate of Lessee to the effect that the signer is familiar with or has reviewed the relevant terms of this Lease and has made, or caused to be made under his supervision, a review of the transactions and conditions of Lessee during the preceding fiscal year, and that such review has not disclosed the existence during such fiscal year, nor does the signer have knowledge of the existence as at the date of such certificate, of any condition or event which constituted or constitutes an Event of Default, or, if any such condition or event existed or exists, specifying the nature and period of existence thereof and what action Lessee has taken or is taking or proposes to take with respect thereto; and
(eiv) Not later than sixty (60) days after December 31 of each yearfrom time to time, an annual budget and quarterly and monthly operating budgets for such fiscal year in a form and with such detail other information relating to its financial, operational or business affairs or conditions as Lessor may be acceptable to a majority of the Directorsreasonably request.
Appears in 1 contract
Samples: Aircraft Lease (American Income Partners v B LTD Partnership)
Financial Information. The So long as any Convertible Notes or shares of Series II Preferred remains outstanding, the Company will furnish provide to each Major holder of such notes or shares the following information (unless such Holder the information set forth requests in this Section 7.2; provided, writing that the Company shall not be required to furnish provide such information to a Major Holder if the Board determines in good faith that such Major Holder is a competitor to the Company (provided that in no event shall Kinnevik (or its Affiliates) or Oak (or its Affiliates) be deemed to be a competitor to the Company and that, as of the Effective Date, Walgreens (and its Affiliates) is deemed to not be a competitor to the Companyinformation):
(a) As soon as practicable within seventy-five (75) days after the end of each fiscal year of the Company, and in any event within one hundred fifty (150i) days thereafter, a copy of the annual an audited financial statements for such fiscal year for the Company and its Subsidiaries, if any, including therein consolidated balance sheets sheet of the Company and its Subsidiaries, if any, as of the end of such fiscal year and year, together with audited consolidated statements of income and members’ equity and of cash flows of the Company for such fiscal year, setting forth in each case in comparative form the corresponding figures for the preceding fiscal year, all prepared in accordance with generally accepted accounting principles consistently applied (“"GAAP”"), all together with (ii) a report on such consolidated financial statements to be duly certified by such independent public accountants of recognized national standing approved prepared by the Board Company's existing independent certified public accountants, a "Big Five" accounting firm or other accounting firm reasonably acceptable to prepare such reportsthe Holders;
(b) As soon as available and in any event within forty-five (45) days after the end of each fiscal quarter, an unaudited balance sheet of the first Company as of the end of such fiscal quarter, and unaudited statements of income and cash flow of the Company for such fiscal year and the fiscal year to date, prepared in accordance with GAAP (other than for accompanying notes, and subject to changes resulting from year-end audit adjustments), all in reasonable detail and all certified by the Chief Financial Officer of the Company;
(c) within thirty (30) days after the end of each fiscal month, an unaudited balance sheet of the Company as of the end of such fiscal month, and unaudited statements of income and cash flow of the Company for such fiscal month and the fiscal year to date, prepared in accordance with GAAP (other than for accompanying notes, and subject to changes resulting from year-end audit adjustments), all in reasonable detail and all certified by the Chief Financial Officer of the Company;
(d) within three quarters (3) business days after the end of each week, an unaudited consolidated statement of revenues for such week and the fiscal year to date, prepared in accordance with GAAP (other than for accompanying notes, and subject to changes resulting from year-end audit adjustments), all in reasonable detail and all certified by the Chief Financial Officer of the Company;
(e) together with each of the financial statements described in paragraphs 2.1(a), 2.1(b) and 2.1(c), a corresponding narrative statement describing the Company's operations on (i) a division or operating unit basis and (ii) a consolidated basis and setting forth in comparative form such operations relative to (i) the comparable period or periods for the prior year and (ii) the budgeted figures for such period or periods;
(f) at least thirty (30) days prior to the commencement of each fiscal year of the Company, an unaudited a budget for such fiscal year, including a projected balance sheet of the Company and its Subsidiaries, if any, as of the end of such quarter year and the related unaudited projected statements of income and members’ equity and of cash flows of the Company for the period commencing at the end of the previous fiscal year and ending with the end of such quarter, setting forth in each case in comparative form the corresponding figures for the corresponding period of the preceding fiscal year and the budget flow for such current year, all in reasonable detail and prepared in accordance with GAAP (subject to year-end audit adjustments and not including all footnotes thereto that may be required in accordance with GAAP);period; and
(cg) Upon request (but not more frequently than the delivery of the financial statements described in Sections 7.2(a) and 7.2(b)), a statement showing the number of Units of each class and series of membership interests (including Profits Interests) and securities convertible into or exercisable for Units outstanding at the end of the applicable period, the Junior Units issuable upon conversion or exercise of any outstanding securities convertible or exercisable for Junior Units and the exchange ratio or exercise price applicable thereto, and the number of Units not yet issued but reserved for issuance under the Equity Incentive Plan, if any, all in sufficient detail as to permit the Preferred Unit Holders to calculate their respective percentage equity ownership in the Company;
(d) As soon as available and in any event within thirty (30) days after the end of each calendar month, a statement of recognized revenue, bookings and retained earnings on a monthly basis, compared against the corresponding figures from such month letter from the preceding fiscal year and the budget for such current year; and
(e) Not later than sixty (60) days after December 31 of each year, an annual budget and quarterly and monthly operating budgets for such fiscal year in a form and with such detail as may be acceptable to a majority Chief Executive Officer of the DirectorsCompany identifying key Company operational and financial events that occurred during such month.
Appears in 1 contract
Samples: Investor Rights Agreement (Meridian Usa Holdings Inc)
Financial Information. The Company will furnish to each Major Holder the information set forth in this Section 7.2; provided, that the Company shall not be required to furnish such information to a Major Holder if the Board determines in good faith that such Major Holder is a competitor Furnish to the Company (provided that in no event shall Kinnevik (or its Affiliates) or Oak (or its Affiliates) be deemed to be a competitor to the Company and that, as of the Effective Date, Walgreens (and its Affiliates) is deemed to not be a competitor to the Company):Lender:
(a) As as soon as practicable available, but in any event within one hundred eighty (180) days after the end of each fiscal year of the CompanyBorrower, commencing with the fiscal year ended March 31, 2024 and in any event within one hundred fifty (150) days continuing for each fiscal year thereafter, a copy (i) the audited consolidated balance sheet of the annual audited financial statements for such fiscal year for the Company and its Subsidiaries, if any, including therein balance sheets of the Company and its Subsidiaries, if any, Borrower as of at the end of such fiscal year and the related consolidated statements of income income, cash flows and changes in members’ equity and of cash flows of the Company (or comparable statement) for such fiscal yearyear as contained in the annual report to the Investors of Borrower and notes thereto, setting forth in each case in comparative form the corresponding figures for the preceding fiscal previous year, all prepared in accordance with generally accepted accounting principles consistently applied (“GAAP”), all such consolidated statements to be duly accompanied by an unqualified report and opinion thereon of independent certified by such independent public accountants of recognized national standing approved by acceptable to the Board to prepare such reportsLender;
(b) As as soon as available and available, but in any event within forty-five sixty (4560) days after the end of each of fiscal quarter commencing with the first three quarters of fiscal quarter ended March 31, 2024 and continuing for each fiscal year of the Companyquarter thereafter, an unaudited consolidated balance sheet of the Company and its Subsidiaries, if any, Borrower as of at the end of such fiscal quarter and the related unaudited consolidated statements of income and members’ equity and of income, cash flows and changes in shareholder equity (or comparable statement) for such fiscal quarter setting forth the fair market value, number, and volume of holdings of all underlying investments, certified by the chief financial officer, controller or other appropriate financial officer of the Company for Borrower reasonably satisfactory to the period commencing at Lender as fairly presenting the end financial condition of the previous fiscal year Borrower and ending with the end its results of such quarteroperation, setting forth cash flow and changes in each case in comparative form the corresponding figures for the corresponding period of the preceding fiscal year and the budget for such current year, all in reasonable detail and prepared in accordance with GAAP financial position (subject to year-end audit adjustments adjustments), with all of the financial statements in the foregoing clauses (a) and not including (b) to be complete and correct in all footnotes thereto that may material respects and to be required prepared in reasonable detail acceptable to the Lender and in accordance with GAAP);
(c) Upon request (but not more frequently than the together with each delivery of the financial statements described in Sections 7.2(apursuant to clause (b) above, (i) a Compliance Certificate certifying as to the matters set forth therein and 7.2(b)), (ii) a statement showing the number summary of Units performance of each class Underlying Fund and series Permitted Investment, including (A) each Permitted Investment’s Net Asset Value and all distributions and other payments made by such Underlying Fund or any other issuer of membership interests any Permitted Investment, and (including Profits InterestsB) all Underlying Funds and securities convertible into or exercisable for Units outstanding at the end of other Permitted Investments acquired during the applicable periodmonth, the Junior Units issuable upon conversion or exercise of any outstanding securities convertible or exercisable for Junior Units and the exchange ratio or exercise price applicable thereto, and the number of Units not yet issued but reserved for issuance under the Equity Incentive Plan, if any, all in sufficient detail as to permit the Preferred Unit Holders to calculate their respective percentage equity ownership in the Companyapplicable;
(d) As soon as available promptly upon Xxxxxx’s written request, a current, correct and complete (i) internally prepared schedule of all Permitted Investments of the Loan Parties and (ii) chart of the Loan Parties’ Deposit Accounts, Securities Accounts and Commodity Accounts in substantially the form provided by the Borrower to the Lender prior to the Closing Date;
(e) promptly upon receipt thereof, copies of all financial statements, reports and other material information and other material correspondence sent to or received by the Borrower or any event within thirty other Loan Party from any Underlying Fund or any other issuer of any Permitted Investment, including notices of default, or the Borrower’s or any other Loan Party’s funding obligation to or its rights under any Underlying Fund or any other issuer of any Permitted Investment and any notice containing a reference to any alleged misconduct of the Borrower, any other Loan Party, the Investment Advisor or any of their respective Subsidiaries;
(30f) days promptly after the end execution thereof, copies of each calendar monthall material amendments or other material changes to the Prospectus or the Fund Policies, a statement of recognized revenuethe Distribution Agreement, bookings the Investment Management Agreement, any Investment Sub-Advisory Agreement, and retained earnings on a monthly basis, compared against any new investment advisory contract entered into after the corresponding figures from such month from the preceding fiscal year and the budget for such current yearClosing Date; and
(eg) Not later than sixty (60) days after December 31 of each yearpromptly upon Xxxxxx’s written request, an annual budget and quarterly and monthly operating budgets for such fiscal year in a form and any other financial statements, reports or information with such detail as may be acceptable respect to a majority of any Loan Party reasonably requested by the DirectorsLender.
Appears in 1 contract
Financial Information. The Company will furnish Subject to each Major Holder the information set forth in this Section 7.2; provided3.7, that the Company shall not be required furnish the following reports to furnish such information to a Major Holder if the Board determines in good faith that such Major Holder is a competitor to the Company (provided that in no event shall Kinnevik (or its Affiliates) or Oak (or its Affiliates) be deemed to be a competitor to the Company and that, as of the Effective Date, Walgreens (and its Affiliates) is deemed to not be a competitor to the Company):each Investor:
(a) As soon as practicable (and in any event within 90 days) after the end of each fiscal year of the Company, and in any event within one hundred fifty Company (150i) days thereafter, a copy statement of the annual audited financial statements for such fiscal year for the Company and its Subsidiaries, if any, including therein balance sheets of the Company and its Subsidiaries, if any, as of the end of such fiscal year and statements of income and membersstockholders’ equity and of cash flows of the Company for such fiscal year, setting forth in each case in comparative form the corresponding figures for the preceding fiscal year, all prepared in accordance with generally accepted accounting principles consistently applied (“GAAP”), all such ii) a consolidated statements to be duly certified by such independent public accountants of recognized national standing approved by the Board to prepare such reports;
(b) As soon as available and in any event within forty-five (45) days after the end of each of the first three quarters of each fiscal year of the Company, an unaudited balance sheet of the Company and its Subsidiaries, if any, as of the end of such quarter fiscal year, and the related unaudited consolidated statements of income and members’ equity and of cash flows of the Company and its Subsidiaries, if any, for the period commencing at the end of the previous fiscal year such year, prepared in accordance with GAAP and ending with the end of such quarter, setting forth in each case in comparative form the corresponding figures for the corresponding period of the preceding previous fiscal year and the budget for such current year, all in reasonable detail audited and prepared in accordance with GAAP (subject to year-end audit adjustments and not including all footnotes thereto that may be required in accordance with GAAP);certified by independent public accountants of nationally recognized standing selected by the Company.
(c) Upon request (but not more frequently than the delivery of the financial statements described in Sections 7.2(a) and 7.2(b)), a statement showing the number of Units of each class and series of membership interests (including Profits Interests) and securities convertible into or exercisable for Units outstanding at the end of the applicable period, the Junior Units issuable upon conversion or exercise of any outstanding securities convertible or exercisable for Junior Units and the exchange ratio or exercise price applicable thereto, and the number of Units not yet issued but reserved for issuance under the Equity Incentive Plan, if any, all in sufficient detail as to permit the Preferred Unit Holders to calculate their respective percentage equity ownership in the Company;
(db) As soon as available practicable (and in any event within thirty 45 days) after the end of the first, second and third quarterly accounting periods in each fiscal year of the Company (30i) days a statement of stockholders’ equity and (ii) an unaudited consolidated balance sheet of the Company and its Subsidiaries, if any, as of the end of each such quarterly period and consolidated statements of income and cash flows of the Company and its Subsidiaries, if any, for such period and for the current fiscal year to date, prepared in accordance with GAAP, subject to changes resulting from normal year-end audit adjustments, except that such financial statements need not contain the notes required by GAAP, and setting forth in comparative form the figures for the corresponding periods of the previous fiscal year and to the Company’s operating budget then in effect, all in reasonable detail and certified by the principal financial or accounting officer of the Company.
(c) As soon as practicable (and in any event within 30 days) after the end of each calendar month, (i) a statement of recognized revenuestockholders’ equity and (ii) an unaudited consolidated balance sheet of the Company and its Subsidiaries, bookings if any, as of the end of each such monthly period and retained earnings on a monthly basisunaudited consolidated statements of income and cash flows of the Company and its Subsidiaries, compared against if any, for such period and for the current fiscal year to date, in each case prepared in accordance with GAAP and setting forth in comparative form the figures for the corresponding figures from such month from periods of the preceding previous fiscal year and year.
(d) As soon as available, but in any event not later than 45 days prior to the beginning of each new fiscal year, an operating budget for such current year; andfiscal year approved by the Board.
(e) Not later than sixty As soon as practicable (60and in any event within 30 days) days after December 31 the end of each quarter of each fiscal year, an annual budget and quarterly and monthly operating budgets for such fiscal year in a form and with such detail as may be acceptable to a majority current capitalization table of the DirectorsCompany certified by the principal financial or accounting officer of the Company.
(f) With reasonable promptness, such other notices, information and data with respect to the Company and its Subsidiaries, if any, as the Company delivers to the holders of Common Stock and such other financial and accounting information and data as an Investor may from time to time reasonably request. If, for any period, the Company has any Subsidiary whose accounts are consolidated with those of the Company, then, in respect of such period, the financial statements delivered pursuant to the foregoing sections shall be the consolidated and consolidating financial statements of the Company and all such consolidated Subsidiaries.
Appears in 1 contract
Financial Information. The Company will Corporation covenants and agrees to --------------------- furnish to each Major Holder the information set forth Preferred Shareholders (other than (A) holders of Series E Preferred Stock that purchased less than $1.0 million in this Section 7.2; provided, that the Company shall not be required to furnish such information to a Major Holder if the Board determines in good faith that such Major Holder is a competitor to the Company (provided that in no event shall Kinnevik (or its Affiliates) or Oak (or its Affiliates) be deemed to be a competitor to the Company and that, shares of Series E Preferred Stock as of the Effective Datedate of such purchase, Walgreens (and its AffiliatesB) is deemed holders of Series F Preferred Stock that have purchased less than $1.0 million in shares of Series F Preferred Stock on the date hereof, (C) any holder of Series D Preferred Stock if such holder fails at any time to not be a competitor own at least 50% of the Series D Preferred Stock purchased by such holder pursuant to the Company):
February 1, 1999 Investment Agreement, (aD) As any holder of Series E Preferred Stock if such holder fails at any time to own at least 50% of the Series E Preferred Stock purchased by such holder pursuant to the September 1999 Agreement, or (E) any holder of Series F Preferred Stock if such holder fails at any time to own at least 50% of the Series F Preferred Stock purchased by such holder pursuant to the Investment Agreement) as soon as practicable and in any event (i) within 120 days after the end of each fiscal year of the CompanyCorporation, and in any event within one hundred fifty (150) days thereafter, a copy the audited balance sheet of the annual audited financial statements for such fiscal year for the Company and its Subsidiaries, if any, including therein balance sheets of the Company and its Subsidiaries, if any, Corporation as of at the end of such fiscal year and the related statements of income income, retained earnings and members’ equity and of cash flows of the Company changes in financial position for such fiscal year, setting forth in the each case in comparative form (for each year other than the first fiscal year) corresponding figures for from the preceding fiscal yearannual audit, all prepared in accordance with generally accepted accounting principles consistently applied (“GAAP”), all such consolidated statements to be duly and certified by such independent public accountants of recognized national standing approved selected by the Board to prepare such reports;
Corporation and (bii) As soon as available and in any event within forty-five (45) 45 days after the end of each fiscal quarter of the first three quarters of each fiscal year of Corporation, the Company, an unaudited balance sheet of the Company and its Subsidiaries, if any, Corporation as of at the end of such quarter fiscal period and the related unaudited statements of income income, retained earnings and members’ equity changes in financial position for such fiscal quarterly period and of cash flows for the elapsed portion of the Company for the period commencing at the end of the previous fiscal year and ending ended with the end last day of such quarterquarterly period, setting forth and in each case in setting forth comparative form the corresponding figures for the corresponding period of related periods in the preceding prior fiscal year and the budget for such current year, all in reasonable detail and of which shall be prepared in accordance with GAAP (generally accepted accounting principles, consistently applied, subject to normal year-end audit adjustments adjustments. The Preferred Shareholders agree that this Section 8 supersedes and not including all footnotes thereto that may be required replaces in accordance with GAAP);
(c) Upon request (but not more frequently than their entirety the delivery obligations of the financial statements described Corporation contained in Sections 7.2(a) and 7.2(b)), a statement showing the number of Units of each class and series of membership interests (including Profits Interests) and securities convertible into or exercisable for Units outstanding at the end Section 6.3.1 of the applicable periodAugust 1998 Agreement, Section 6.2.1 of the Junior Units issuable upon conversion or exercise June 1998 Agreement, Section 7.2.1 of any outstanding securities convertible or exercisable for Junior Units the December 1997 Agreement, and Section 6.2 of the February 1, 1999 Investment Agreement, and such sections of the August 1998 Agreement, June 1998 Agreement, December 1997 Agreement, February 1999 Agreement and the exchange ratio September 1999 Agreement shall have no further force or exercise price applicable thereto, and effect subsequent to the number date hereof."
10. The first sentence of Units not yet issued but reserved for issuance under the Equity Incentive Plan, if any, all in sufficient detail as to permit the Preferred Unit Holders to calculate their respective percentage equity ownership in the Company;
(d) As soon as available and in any event within thirty (30) days after the end of each calendar month, a statement of recognized revenue, bookings and retained earnings on a monthly basis, compared against the corresponding figures from such month from the preceding fiscal year and the budget for such current year; and
(e) Not later than sixty (60) days after December 31 of each year, an annual budget and quarterly and monthly operating budgets for such fiscal year in a form and with such detail as may be acceptable to a majority Section 9.1 of the DirectorsAgreement shall be deleted and replaced with the following: "The Corporation hereby grants to each Series D Investor, each Series E Investor and each Series F Investor that holds at least 100,000 Shares (each an "Investor") the right of first offer to purchase such Investor's pro rata share ("Pro Rata Share") of New Securities (as defined in Section 9.2) that the Corporation may, from time to time, propose to sell and issue."
Appears in 1 contract
Samples: Shareholder Agreements (Greenwich Technology Partners Inc)
Financial Information. The Company Borrower will furnish deliver to each Major Holder the information set forth in this Section 7.2; provided, that the Company shall not be required Administrative Agent (with sufficient copies to furnish such information distribute to a Major Holder if the Board determines in good faith that such Major Holder is a competitor to the Company (provided that in no event shall Kinnevik (or its Affiliates) or Oak (or its Affiliates) be deemed to be a competitor to the Company and that, as all of the Effective Date, Walgreens (and its Affiliates) is deemed to not be a competitor to the CompanyBanks):
(a) As as soon as practicable available, but in no event later than ninety-five (95) days after the end of each fiscal year Fiscal Year of the CompanyBorrower, and in any event within one hundred fifty (150) days thereafter, a copy an audited consolidated balance sheet of the annual audited financial statements for such fiscal year for the Company Borrower and its Subsidiaries, if any, including therein balance sheets of the Company and its Subsidiaries, if any, Consolidated Subsidiaries as of the end of such fiscal year Fiscal Year and the related consolidated statements of income Borrower's operations and members’ equity and consolidated statements of Borrower's cash flows of the Company flow for such fiscal year, Fiscal Year setting forth in each case in comparative form the corresponding figures figure for the preceding fiscal yearprevious Fiscal Year, all prepared in accordance with generally accepted accounting principles consistently applied (“GAAP”), all such consolidated statements to be duly certified reported on by such Ernst & Young LLP or other independent public accountants of nationally recognized national standing approved by the Board to prepare such reportsstanding;
(b) As as soon as available available, but in no event later than sixty (60) days after the end of each of the first three Fiscal Quarters of the Borrower, (i) a consolidated balance sheet of the Borrower and in its Consolidated Subsidiaries as of the end of such quarter and the related consolidated statements of Borrower's operations and consolidated statements of Borrower's cash flow for such Fiscal Quarter and for the portion of the Borrower's Fiscal Year ended at the end of such Fiscal Quarter, all reported on by Ernst & Young LLP or their independent public accountants of nationally recognized standing, and (ii) such other information reasonably requested by the Administrative Agent or any event Bank;
(c) within forty-five (45) days after the end of each Fiscal Quarter, a certificate in the form of Exhibit D attached hereto of the chief financial officer or the chief accounting officer of the Borrower or its general partner (the "Certifying Officer") (i) setting forth in reasonable detail the calculations required to establish whether the Borrower was in compliance with the requirements of Section 5.9 on the date of such financial statements; (ii) certifying (x) that such financial statements fairly present the financial condition and the results of operations of the Borrower on the dates and for the periods indicated, on the basis of GAAP, with respect to the Borrower subject, in the case of interim financial statements, to normally recurring year-end adjustments, and (y) that such officer has reviewed the terms of the Loan Documents and has made, or caused to be made under his or her supervision, a review in reasonable detail of the business and condition of the Borrower during the period beginning on the date through which the last such review was made pursuant to this Section 5. 1 (c) (or, in the case of the first three quarters certification pursuant to this Section 5. 1 (c), the Closing Date) and ending on a date not more than ten (10) Domestic Business Days prior to the date of each fiscal year such delivery and that
(1) on the basis of such financial statements and such review of the CompanyLoan Documents, an unaudited balance sheet no Event of Default existed under Section 6. 1 (b) with respect to Sections 5.9 and 5. 10 at or as of the Company date of said financial statements, and its Subsidiaries(2) on the basis of such review of the Loan Documents and the business and condition of the Borrower, if anyto the best knowledge of such officer, as of the end of such quarter and the related unaudited statements of income and members’ equity and of cash flows last day of the Company period covered by such certificate no Default or Event of Default under any other provision of Section 6.1 occurred and is continuing or, if any such Default or Event of Default has occurred and is continuing, specifying the nature and extent thereof and, the action the Borrower proposes to take in respect thereof. Such certificate shall set forth the calculations required to establish the matters described in clause (1) above and shall attach as exhibits thereto the following: escrow closing statements, certified by the Certifying Officer, for each Qualifying Unencumbered Property which was acquired during the period commencing at the end of the previous fiscal year and ending with the end of such quarter, preceding Fiscal Quarter; an occupancy report setting forth in the average Occupancy Rate for each case in comparative form the corresponding figures for the corresponding period of Qualifying Unencumbered Property during the preceding fiscal year Fiscal Quarter; and a report stating the budget Net Operating Income for such current year, all in each Qualifying Unencumbered Property during the preceding Fiscal Quarter with reasonable detail and prepared in accordance with GAAP (subject to year-end audit adjustments and not including all footnotes thereto that may be required in accordance with GAAP);
(c) Upon request (but not more frequently than the delivery of the financial statements described in Sections 7.2(a) and 7.2(b)), a statement showing the number of Units of each class and series of membership interests (including Profits Interests) and securities convertible into or exercisable for Units outstanding at the end of the applicable period, the Junior Units issuable upon conversion or exercise of any outstanding securities convertible or exercisable for Junior Units and the exchange ratio or exercise price applicable thereto, and the number of Units not yet issued but reserved for issuance under the Equity Incentive Plan, if any, all in sufficient detail as to permit the Preferred Unit Holders to calculate their respective percentage equity ownership in the Company;all property expenses and capital expenditures.
(d) As soon as available not less frequently than annually, and in any event within thirty fifteen (3015) days after adoption by Borrower's Board of Directors, the end of each calendar monthBorrower's business plan, any subsequent material revisions thereto, and a statement of recognized revenue, bookings and retained earnings on a monthly basis, compared against the corresponding figures from such month from the preceding fiscal year and the budget for such current year; and
(e) Not later than sixty (60) days after December 31 of each year, an annual budget and quarterly and monthly operating budgets for such fiscal year in a form and with such detail as may be acceptable to a majority projected cash flow of the DirectorsBorrower and its Consolidated Subsidiaries for the twelve (12) month period following the date of such Business Plan.
Appears in 1 contract
Financial Information. The Company will furnish to each Major Holder the information set forth in this Section 7.2; provided, that the Company shall not be required Corporation covenants and agrees to furnish such information to a Major Holder if the Board determines in good faith that such Major Holder is a competitor --------------------- to the Company Preferred Shareholders (provided other than (A) holders of Series E Preferred Stock that have purchased less than $1.0 million in no event shall Kinnevik shares of Series E Preferred Stock on the date hereof, or (or its AffiliatesB) or Oak (or its Affiliates) be deemed any holder of Series D Preferred Stock if such holder fails at any time to be a competitor own less than 50% of the Series D Preferred Stock purchased by such holder pursuant to the Company and thatFebruary 1, as 1999 Investment Agreement, or (C) any holder of Series E Preferred Stock if such holder fails at any time to own less than 50% of the Effective Date, Walgreens (and its Affiliates) is deemed to not be a competitor Series E Preferred Stock purchased by such holder pursuant to the Company):
(aInvestment Agreement) As as soon as practicable and in any event (i) within 120 days after the end of each fiscal year of the CompanyCorporation, and in any event within one hundred fifty (150) days thereafter, a copy the audited balance sheet of the annual audited financial statements for such fiscal year for the Company and its Subsidiaries, if any, including therein balance sheets of the Company and its Subsidiaries, if any, Corporation as of at the end of such fiscal year and the related statements of income income, retained earnings and members’ equity and of cash flows of the Company changes in financial position for such fiscal year, setting forth in the each case in comparative form (for each year other than the first fiscal year) corresponding figures for from the preceding fiscal yearannual audit, all prepared in accordance with generally accepted accounting principles consistently applied (“GAAP”), all such consolidated statements to be duly and certified by such independent public accountants of recognized national standing approved selected by the Board to prepare such reports;
Corporation and (bii) As soon as available and in any event within forty-five (45) 45 days after the end of each fiscal quarter of the first three quarters of each fiscal year of Corporation, the Company, an unaudited balance sheet of the Company and its Subsidiaries, if any, Corporation as of at the end of such quarter fiscal period and the related unaudited statements of income income, retained earnings and members’ equity changes in financial position for such fiscal quarterly period and of cash flows for the elapsed portion of the Company for the period commencing at the end of the previous fiscal year and ending ended with the end last day of such quarterquarterly period, setting forth and in each case in setting forth comparative form the corresponding figures for the corresponding period of related periods in the preceding prior fiscal year and the budget for such current year, all in reasonable detail and of which shall be prepared in accordance with GAAP (generally accepted accounting principles, consistently applied, subject to normal year-end audit adjustments adjustments. The Preferred Shareholders agree that this Section 8 supersedes and not including all footnotes thereto that may be required replaces in accordance with GAAP);
(c) Upon request (but not more frequently than their entirety the delivery obligations of the financial statements described Corporation contained in Sections 7.2(a) and 7.2(b)), a statement showing the number of Units of each class and series of membership interests (including Profits Interests) and securities convertible into or exercisable for Units outstanding at the end Section 6.3.1 of the applicable periodAugust 1998 Agreement, Section 6.2.1 of the Junior Units issuable upon conversion or exercise June 1998 Agreement, Section 7.2.1 of any outstanding securities convertible or exercisable for Junior Units and the exchange ratio or exercise price applicable theretoDecember 1997 Agreement, and the number of Units not yet issued but reserved for issuance under the Equity Incentive Plan, if any, all in sufficient detail as to permit the Preferred Unit Holders to calculate their respective percentage equity ownership in the Company;
(d) As soon as available and in any event within thirty (30) days after the end of each calendar month, a statement of recognized revenue, bookings and retained earnings on a monthly basis, compared against the corresponding figures from such month from the preceding fiscal year and the budget for such current year; and
(e) Not later than sixty (60) days after December 31 of each year, an annual budget and quarterly and monthly operating budgets for such fiscal year in a form and with such detail as may be acceptable to a majority Section 6.2 of the DirectorsFebruary 1, 1999 Investment Agreement, and such sections of the August 1998 Agreement, June 1998 Agreement, December 1997 Agreement and February 1, 1999 Investment Agreement shall have no further force or effect subsequent to the date hereof.
Appears in 1 contract
Samples: Shareholder Agreements (Greenwich Technology Partners Inc)
Financial Information. The Company will furnish Except to each Major Holder the extent such materials are available to the public through the SEC’s Electronic Data Gathering, Analysis, and Retrieval system (also known as “EXXXX”) or its Interactive Data Electronic Applications information set forth in this Section 7.2; providedportal (also known as “IDEA”) or through Bloomberg (or other similar financial information service provider) at the relevant time, that the Company shall not be required agrees to furnish such information to a Major Holder if the Board determines in good faith that such Major Holder is a competitor provide to the Company (provided that in no event shall Kinnevik (or its Affiliates) or Oak (or its Affiliates) be deemed to be a competitor to the Company and that, as of the Effective Date, Walgreens (and its Affiliates) is deemed to not be a competitor to the Company):Investors:
(ai) As as soon as practicable practicable, but in any event within one hundred and twenty (120) days after the end of each fiscal year of the Company, consolidated and in any event within one hundred fifty (150) days thereafter, a copy consolidating income statements and statements of the annual audited financial statements for such fiscal year cash flows for the Company and its Subsidiaries, if any, including therein Subsidiaries for such fiscal year and consolidated and consolidating balance sheets of and accounts receivable aging reports for the Company and its Subsidiaries, if any, Subsidiaries as of the end of such fiscal year and statements of income and members’ equity and of cash flows of the Company for such fiscal year, setting forth in each case in comparative form comparisons to the corresponding figures for Annual Budget and to the preceding fiscal year, all prepared in accordance with generally accepted accounting principles U.S. GAAP, consistently applied (“GAAP”)applied, all such consolidated statements to be duly and audited and certified by the Company’s auditors and accompanied by a copy of such independent public accountants of recognized national standing approved by auditing firm's annual management letter to the Board to prepare such reportsBoard;
(bii) As as soon as available and practicable, but in any event within forty-five (45) days after the end of each fiscal quarter, unaudited financial statements of the first three quarters Company and its Subsidiaries for such fiscal quarter, including unaudited consolidated and consolidating balance sheets of the Company and its Subsidiaries as at the end of such fiscal quarter and the related consolidated and consolidating statements of income and cash flows for such fiscal quarter and for the period from the beginning of the then-current fiscal year to the end of such fiscal quarter, setting forth in each case comparisons to the Annual Budget and to the corresponding period in the preceding fiscal year, all prepared in accordance with U.S. GAAP, consistently applied, subject to changes resulting from audit and normal year-end adjustments made in accordance with U.S. GAAP, consistently applied;
(iii) as soon as practicable, but in any event within fourteen (14) days after the end of each monthly accounting period in each fiscal year, unaudited financial statements of the Company and its Subsidiaries for such monthly period, including unaudited consolidated and consolidating required balance sheet items of the Company and its Subsidiaries as at the end of such monthly period and the related consolidated and consolidating management accounts, required cash flow items and statements of income for such monthly period and for the period from the beginning of the then-current fiscal year to the end of such monthly period, setting forth in each case comparisons to the Annual Budget and to the corresponding period in the preceding fiscal year, all prepared in accordance with U.S. GAAP, consistently applied, subject to changes resulting from audit and normal year-end adjustments made in accordance with U.S. GAAP, consistently applied;
(iv) within thirty (30) days prior to the beginning of each fiscal year of the Company, an unaudited balance sheet Annual Budget in respect of such upcoming fiscal year, to be approved by the Board;
(v) promptly upon receipt thereof, any additional reports, management letters or other detailed information concerning significant aspects of the Company’s or its Subsidiaries’ operations or financial affairs given to the Company by its independent accountants (and not otherwise contained in other materials provided hereunder);
(vi) as soon as available, copies of any communications, or reports or statements furnished to or filed by the Company (other than such information covered under sub clauses (i), (ii) and (iii) above), with the SEC or any securities exchange on which any class of Equity Securities of the Company may be listed;
(vii) promptly (but in any event within five Business Days) after the discovery or receipt of notice of any Event of Default (as such term is defined in its respective 2019 Note), any default under any material agreement to which it or any of its Subsidiaries is a party, any condition or event which is reasonably likely to result in any material adverse effect affecting the Company or any Subsidiary (including, without limitation, the filing of any material litigation against the Company or any Subsidiary or the existence of any dispute with any Person which involves a reasonable likelihood of such litigation being commenced), a certificate from an officer of the Company specifying the nature and period of existence thereof and what actions the Company and its Subsidiaries, if any, as of the end of such quarter Subsidiaries have taken and the related unaudited statements of income and members’ equity and of cash flows of the Company for the period commencing at the end of the previous fiscal year and ending propose to take with the end of such quarter, setting forth in each case in comparative form the corresponding figures for the corresponding period of the preceding fiscal year and the budget for such current year, all in reasonable detail and prepared in accordance with GAAP (subject to year-end audit adjustments and not including all footnotes thereto that may be required in accordance with GAAP);
(c) Upon request (but not more frequently than the delivery of the financial statements described in Sections 7.2(a) and 7.2(b)), a statement showing the number of Units of each class and series of membership interests (including Profits Interests) and securities convertible into or exercisable for Units outstanding at the end of the applicable period, the Junior Units issuable upon conversion or exercise of any outstanding securities convertible or exercisable for Junior Units and the exchange ratio or exercise price applicable respect thereto, and the number of Units not yet issued but reserved for issuance under the Equity Incentive Plan, if any, all in sufficient detail as to permit the Preferred Unit Holders to calculate their respective percentage equity ownership in the Company;
(d) As soon as available and in any event within thirty (30) days after the end of each calendar month, a statement of recognized revenue, bookings and retained earnings on a monthly basis, compared against the corresponding figures from such month from the preceding fiscal year and the budget for such current year; and
(eviii) Not later than sixty (60) days after December 31 of each yearas soon as practicable, an annual budget such other information and quarterly financial data concerning the Company and monthly operating budgets for such fiscal year in a form and with such detail its Subsidiaries as the Investors may be acceptable to a majority of the Directorsreasonably request.
Appears in 1 contract
Financial Information. The Company will furnish (i) to each Major Holder the information set forth in this Section 7.27.2 and (ii) to each Summit Class A Member who is an investment fund, or an Affiliate of an investment fund, the information set forth in Sections 7.2(a) and 7.2(b); provided, that the Company shall not be required to furnish such information to a Major Holder or Summit Class A Member if the Board determines in good faith that such Major Holder Person is a competitor to the Company (provided that in no event shall Kinnevik (or its Affiliates) or Oak (or its Affiliates) be deemed to be a competitor to the Company and that, as of the Effective Date, Walgreens and Cigna (and its their respective Affiliates) is are each deemed to not be a competitor to the Company):
(a) As soon as practicable after the end of each fiscal year of the Company, and in any event within one hundred fifty (150) days thereafter, a copy of the annual audited financial statements for such fiscal year for the Company and its Subsidiaries, if any, including therein balance sheets of the Company and its Subsidiaries, if any, as of the end of such fiscal year and statements of income and members’ equity and of cash flows of the Company for such fiscal year, setting forth in each case in comparative form the corresponding figures for the preceding fiscal year, all prepared in accordance with generally accepted accounting principles consistently applied (“GAAP”), all such consolidated statements to be duly certified by such independent public accountants of recognized national standing approved by the Board to prepare such reports;
(b) As soon as available and in any event within forty-five (45) days after the end of each of the first three quarters of each fiscal year of the Company, an unaudited balance sheet of the Company and its Subsidiaries, if any, as of the end of such quarter and the related unaudited statements of income and members’ equity and of cash flows of the Company for the period commencing at the end of the previous fiscal year and ending with the end of such quarter, setting forth in each case in comparative form the corresponding figures for the corresponding period of the preceding fiscal year and the budget for such current year, all in reasonable detail and prepared in accordance with GAAP (subject to year-end audit adjustments and not including all footnotes thereto that may be required in accordance with GAAP);
(c) Upon request (but not more frequently than the delivery of the financial statements described in Sections 7.2(a) and 7.2(b)), a statement showing the number of Units of each class and series of membership interests (including Profits Interests) and securities convertible into or exercisable for Units outstanding at the end of the applicable period, the Junior Units issuable upon conversion or exercise of any outstanding securities convertible or exercisable for Junior Units and the exchange ratio or exercise price applicable thereto, and the number of Units not yet issued but reserved for issuance under the Equity Incentive Plan, if any, all in sufficient detail as to permit the Preferred Unit Holders to calculate their respective percentage equity ownership in the Company;
(d) As soon as available and in any event within thirty (30) days after the end of each calendar month, a statement of recognized revenue, bookings and retained earnings on a monthly basis, compared against the corresponding figures from such month from the preceding fiscal year and the budget for such current year; and
(e) Not later than sixty (60) days after December 31 of each year, an annual budget and quarterly and monthly operating budgets for such fiscal year in a form and with such detail as may be acceptable to a majority of the Directors.
Appears in 1 contract
Samples: Limited Liability Company Agreement (Walgreens Boots Alliance, Inc.)
Financial Information. As soon as practicable after the end of each fiscal year, and in any event within one hundred twenty (120) days thereafter, the Company will furnish to each Holder, or transferee thereof under Section 1.14, consolidated balance sheets of the Company and its subsidiaries, if any, as of the end of such fiscal year, and consolidated statements of income and cash flows of the Company and its subsidiaries, if any, for such year, prepared in accordance with generally accepted accounting principles applied on a consistent basis and setting forth in each case in comparative form the figures for the previous fiscal year, all in reasonable detail and audited by independent public accountants of national standing selected by the Company and approved by the Board. The Company will furnish to each Major Holder under Section 1.14 the information set forth in this Section 7.2; provided, that the Company shall not be required to furnish such information to a Major Holder if the Board determines in good faith that such Major Holder is a competitor to the Company (provided that in no event shall Kinnevik (or its Affiliates) or Oak (or its Affiliates) be deemed to be a competitor to the Company and that, as of the Effective Date, Walgreens (and its Affiliates) is deemed to not be a competitor to the Company):following reports:
(a) As soon as practicable after the end of each fiscal year of the Companyquarter, and in any event within one hundred fifty (150) days thereafter, a copy of the annual audited financial statements for such fiscal year for the Company and its Subsidiaries, if any, including therein balance sheets of the Company and its Subsidiaries, if any, as of the end of such fiscal year and statements of income and members’ equity and of cash flows of the Company for such fiscal year, setting forth in each case in comparative form the corresponding figures for the preceding fiscal year, all prepared in accordance with generally accepted accounting principles consistently applied (“GAAP”), all such consolidated statements to be duly certified by such independent public accountants of recognized national standing approved by the Board to prepare such reports;
(b) As soon as available and in any event within forty-five (45) days after thereafter (other than the end of each of the first three quarters last calendar month of each fiscal year of the Companyyear), an unaudited consolidated balance sheet sheets of the Company and its Subsidiariessubsidiaries, if any, as of the end of such quarter the quarter, and the related unaudited consolidated statements of income and members’ equity and of cash flows of the Company and its subsidiaries, if any, for the period commencing at the end of the previous fiscal year and ending with the end of such quarter, prepared in accordance with generally accepted accounting principles applied on a consistent basis and setting forth in each case in comparative form the corresponding figures for the corresponding period of the preceding fiscal same quarter one year earlier; provided that footnotes and the budget for such current yearschedule disclosure appearing in audited financial statements shall not be required, all in reasonable detail (in a form acceptable to the Major Holders) and signed by the principal financial or accounting officer of the Company;
(b) As soon as practicable after the end of each month, and in any event within forty-five (45) days thereafter (other than the last calendar month of each fiscal year), unaudited consolidated balance sheets of the Company and its subsidiaries, if any, as of the end of the month, and unaudited consolidated statements of income and cash flows of the Company and its subsidiaries, if any, for such month, prepared in accordance with GAAP generally accepted accounting principles applied on a consistent basis and setting forth in each case in comparative form the figures for the same month one year earlier; provided that footnotes and schedule disclosure appearing in audited financial statements shall not be required, all in reasonable detail (subject in a form acceptable to year-end audit adjustments the Major Holders) and not including all footnotes thereto that may be required in accordance with GAAP)signed by the principal financial or accounting officer of the Company;
(c) Upon request (but not more frequently than the delivery of the financial statements described in Sections 7.2(a) and 7.2(b)), a statement showing the number of Units of each class and series of membership interests (including Profits Interests) and securities convertible into or exercisable for Units outstanding at the end of the applicable period, the Junior Units issuable upon conversion or exercise of any outstanding securities convertible or exercisable for Junior Units and the exchange ratio or exercise price applicable thereto, and the number of Units not yet issued but reserved for issuance under the Equity Incentive Plan, if any, all in sufficient detail as to permit the Preferred Unit Holders to calculate their respective percentage equity ownership in the Company;
(d) As soon as available and practicable, but in any event within thirty sixty (3060) days after prior to the end beginning of each calendar monthfiscal year, a statement of recognized revenuecomprehensive operating budget forecasting the Company’s revenues, bookings expenses and retained earnings cash position on a month-to-month basis for the upcoming fiscal year, prepared on a monthly basis, compared against the corresponding figures from such month from the preceding fiscal year and the budget for such current year; and
(e) Not later than sixty (60) days after December 31 of each year, an annual budget and quarterly and monthly operating as soon as prepared, any other updated or revised budgets for such fiscal year in a form prepared by the Company and with such detail as may be acceptable to a majority of approved by the DirectorsBoard.
Appears in 1 contract
Samples: Investors’ Rights Agreement (Aldeyra Therapeutics, Inc.)
Financial Information. The Until the consummation by the Company of --------------------- a firm commitment public offering of securities with gross proceeds to the Company of $20,000,000 or more and at a price per share equal to $10.00 or higher, the Company will furnish to each Major Holder the information set forth in this Section 7.2; providedPurchaser, that the Company shall not be required to furnish so long as such information to a Major Holder if the Board determines in good faith that such Major Holder is a competitor to the Company (provided that in no event shall Kinnevik (Purchaser or its Affiliatespermitted transferees (as described in Section 4.1(d)) or Oak (or its Affiliates) be deemed to be a competitor to the Company and that, as own any of the Effective Date, Walgreens (and its Affiliates) is deemed to not be a competitor to Preferred Shares or Common Shares issued upon conversion of the Company):Preferred Shares:
(ai) As as soon as practicable after the end of each fiscal year of the Companyyear, and in any event within one hundred fifty (150) 90 days thereafter, a copy of the annual audited financial statements for such fiscal year for the Company and its Subsidiaries, if any, including therein consolidated balance sheets of the Company and its Subsidiariessubsidiaries, if any, as at the end of such fiscal year, and consolidated statements of operations and consolidated statements of changes in financial position (or equivalent cash flow statements if required by the Financial Accounting Standards Board) of the Company and its subsidiaries, if any, for such year, prepared in accordance with generally accepted accounting principles, all in reasonable detail and certified by independent public accountants of recognized national standing selected by the Company, and
(ii) as soon as practicable after the end of each month (except the last month of the fiscal year), and in any event within 20 days thereafter, consolidated balance sheets of the Company and its subsidiaries, if any, as of the end of such fiscal year month; and consolidated statements of income and members’ equity and of (or equivalent cash flows of flow statements if required by the Company Financial Accounting Standards Board), for such fiscal year, setting forth in each case in comparative form the corresponding figures month and for the preceding current fiscal yearyear to date, all prepared in accordance with generally accepted accounting principles consistently applied (“GAAP”except for required footnotes), all such consolidated statements to be duly certified by such independent public accountants of recognized national standing approved by the Board to prepare such reports;
(b) As soon as available and in any event within forty-five (45) days after the end of each of the first three quarters of each fiscal year of the Company, an unaudited balance sheet of the Company and its Subsidiaries, if any, as of the end of such quarter and the related unaudited statements of income and members’ equity and of cash flows of the Company for the period commencing at the end of the previous fiscal year and ending with the end of such quarter, setting forth in each case in comparative form the corresponding figures for the corresponding period of the preceding fiscal year and the budget for such current year, all in reasonable detail and prepared in accordance with GAAP (signed, subject to changes resulting from year-end audit adjustments and not including all footnotes thereto that may be required in accordance with GAAP);adjustments, by the principal financial officer or chief executive officer of the Company, and
(ciii) Upon request (as soon as practicable, but not more frequently in no event later than 30 days prior to the delivery commencement of the financial statements described in Sections 7.2(a) such fiscal year, an annual plan for each fiscal year which shall include monthly capital and 7.2(b))operating expense budgets, a statement showing the number of Units of cash flow statements, projected balance sheets and profit and loss projections for each class such month and series of membership interests (including Profits Interests) and securities convertible into or exercisable for Units outstanding at the end of the applicable period, the Junior Units issuable upon conversion or exercise of any outstanding securities convertible or exercisable for Junior Units and the exchange ratio or exercise price applicable thereto, and the number of Units not yet issued but reserved for issuance under the Equity Incentive Plan, if any, all in sufficient detail as to permit the Preferred Unit Holders to calculate their respective percentage equity ownership in the Company;
(d) As soon as available and in any event within thirty (30) days after the end of each calendar month, a statement of recognized revenue, bookings and retained earnings on a monthly basis, compared against the corresponding figures from such month from the preceding fiscal year and the budget for such current year; and
(e) Not later than sixty (60) days after December 31 of each year, an annual budget and quarterly and monthly operating budgets for such fiscal year itemized in a form and with such detail as the Board of Directors may be acceptable to a majority of the Directorsreasonably determine.
Appears in 1 contract
Financial Information. The Company will furnish Furnish to each Major Holder the information set forth in this Section 7.2; provided, that the Company shall not be required to furnish such information to a Major Holder if the Board determines in good faith that such Major Holder is a competitor to the Company (provided that in no event shall Kinnevik (or its Affiliates) or Oak (or its Affiliates) be deemed to be a competitor to the Company and that, as of the Effective Date, Walgreens (and its Affiliates) is deemed to not be a competitor to the Company):Bank:
(ai) As as soon as practicable available, but in any event within 120 days after the end of each fiscal year of the Company, and in any event within one hundred fifty (150) days thereafterBorrower, a copy of the annual audited financial statements for such fiscal year for the Company Borrower's consolidated balance sheet of itself and its Subsidiaries, if any, including therein balance sheets of the Company and its Subsidiaries, if any, Consolidated Subsidiaries as of at the end of such each fiscal year and the related consolidated statements of income income, stockholders' equity, and members’ equity and statement of cash flows of the Company for such fiscal year, setting forth in each case in comparative form the corresponding figures for the preceding fiscal previous year, all prepared in accordance with generally accepted accounting principles consistently applied (“GAAP”), all such consolidated statements to be duly accompanied by an unqualified report and opinion thereon of Ernst & Young or other independent certified by such independent public accountants of recognized national standing approved by the Board acceptable to prepare such reportsBank;
(bii) As as soon as available and available, but in any event within forty-five (45) 60 days after the end of each of the first three quarters of each Borrower's fiscal year of the Companyquarters, an Borrower's unaudited consolidated balance sheet of the Company itself and its Subsidiaries, if any, Consolidated Subsidiaries as of at the end of such quarter period and the related unaudited consolidated statements of income income, stockholders' equity, and members’ equity and statement of cash flows of the Company for the such period commencing at the end of the previous fiscal and year and ending with the end of such quarterto date, setting forth in each case in comparative form the corresponding figures for the corresponding period of the preceding fiscal year and the budget for such current year, all in reasonable detail and prepared in accordance with GAAP (subject to year-end audit adjustments and not including all footnotes thereto that may be required in accordance with GAAP);
(c) Upon request (but not more frequently than the delivery of the financial statements described in Sections 7.2(a) and 7.2(b)), a statement showing the number of Units of each class and series of membership interests (including Profits Interests) and securities convertible into or exercisable for Units outstanding as at the end of the applicable period, previous fiscal year as to the Junior Units issuable upon conversion or exercise of any outstanding securities convertible or exercisable for Junior Units balance sheet and the exchange ratio or exercise price applicable thereto, and figures for the number of Units not yet issued but reserved for issuance under the Equity Incentive Plan, if any, all in sufficient detail previous corresponding period as to permit the Preferred Unit Holders other statements, certified by a duly authorized officer of Borrower as being fairly stated in all material respects subject to calculate their respective percentage equity ownership year end adjustments; all such financial statements to be complete and correct in the Company;all material respects and to be prepared in reasonable detail acceptable to Bank and in accordance with GAAP
(diii) As soon as available together with each delivery of financial statements of Borrower and its Consolidated Subsidiaries pursuant to subdivisions (i) and (ii) above, (A) an officer's certificate stating that the signers have reviewed the terms of the Loan Documents and have made, or caused to be made under their supervision, a review in any event within thirty (30) days after reasonable detail of the transactions and condition of Borrower and its Consolidated Subsidiaries during the accounting period covered by such financial statements and that such review has not disclosed the existence during or at the end of each calendar monthsuch accounting period, and that the signers do not have knowledge of the existence as at the date of the officers' certificate, of any existing condition or event which constitutes an Event of Default or Potential Event of Default, or, if any such condition or event existed or exists, specifying the nature and period of existence thereof and what action Borrower has taken, is taking and proposes to take with respect thereto; and (B) a statement compliance certificate, in form and substance satisfactory to Bank, setting forth in such detail as Bank may request the calculation of recognized revenuethe ratios and amounts necessary to determine Borrower's compliance with Sections 6.2(a), bookings 6.2(b), 6.2(c), 6.2(e), and retained earnings on a monthly basis6.2(j) hereof for the accounting period covered by such financial statements, compared against the corresponding figures from such month from the preceding fiscal year and the budget for such current yearcertified by Borrower's chief executive officer or chief financial officer; and
(eiv) Not later than sixty (60) days after December 31 as soon as available, copies of each yearall reports which Borrower sends to any of its security holders, an annual budget and quarterly copies of all reports and monthly operating budgets for such fiscal year in a form registration statements which Borrower or any Subsidiary files with the S.E.C. or any national securities exchange, including, but not limited to: Form 8-K Current Report, Form 10-K Annual Report, Form 10-Q Quarterly Report, Annual Report to Shareholders, Proxy Statements, and with such detail as may be acceptable to a majority of the DirectorsRegistration Statements.
Appears in 1 contract
Samples: Credit Agreement (Komag Inc /De/)
Financial Information. The Company will furnish to each Major Holder the information set forth in this Section 7.2; provided, that the Company shall not be required to furnish such information to a Major Holder if the Board determines in good faith that such Major Holder is a competitor to the Company (provided that in no event shall Kinnevik (or its Affiliates) or Oak (or its Affiliates) be deemed to be a competitor to the Company and that, For so long as AOBO still owns more than 20% of the Effective Dateoutstanding Common Stock of CAXG, Walgreens (and its Affiliates) is deemed CAXG shall send the following reports and/or notices to not be a competitor to the Company):AOBO:
(ai) As soon as practicable after the end of each fiscal year of the Company, and in any event within one hundred fifty (150A) days thereafter, a copy of the annual audited financial statements for such fiscal year for the Company and its Subsidiaries, if any, including therein balance sheets of the Company and its Subsidiaries, if any, as of the end of such fiscal year and statements of income and members’ equity and of cash flows of the Company for such fiscal year, setting forth in each case in comparative form the corresponding figures for the preceding fiscal year, all prepared in accordance with generally accepted accounting principles consistently applied (“GAAP”), all such consolidated statements to be duly certified by such independent public accountants of recognized national standing approved by the Board to prepare such reports;
(b) As soon as available and in any event within forty-five (45) days after the end of each of the first three quarters of each fiscal year of the Company, an unaudited balance sheet of the Company and its Subsidiaries, if any, as of the end of such quarter and the related unaudited statements of income and members’ equity and of cash flows of the Company for the period commencing at the end of the previous fiscal year and ending with the end of such quarter, setting forth in each case in comparative form the corresponding figures for the corresponding period of the preceding fiscal year and the budget for such current year, all in reasonable detail and prepared in accordance with GAAP (subject to year-end audit adjustments and not including all footnotes thereto that may be required in accordance with GAAP);
(c) Upon request (but not more frequently than the delivery of the financial statements described in Sections 7.2(a) and 7.2(b)), a statement showing the number of Units of each class and series of membership interests (including Profits Interests) and securities convertible into or exercisable for Units outstanding at the end of the applicable period, the Junior Units issuable upon conversion or exercise of any outstanding securities convertible or exercisable for Junior Units and the exchange ratio or exercise price applicable thereto, and the number of Units not yet issued but reserved for issuance under the Equity Incentive Plan, if any, all in sufficient detail as to permit the Preferred Unit Holders to calculate their respective percentage equity ownership in the Company;
(d) As soon as available and in any event within thirty (30) days after the end of each calendar monthof the fiscal years, a statement of recognized revenue, bookings and retained earnings on a monthly basis, compared against the corresponding figures from consolidated audited balance sheet for such month from the preceding fiscal year and the budget for such current year; and
(e) Not later than sixty (60) days after December 31 of each immediately preceding fiscal year, an annual budget and quarterly and monthly operating budgets a consolidated income statement for such fiscal year in and the immediately preceding two fiscal years, a form consolidated cash flow statement for such fiscal year and with the immediately preceding two fiscals year and a consolidated shareholders’ equity statement for such detail as may be acceptable to a majority fiscal year and the immediately preceding two fiscals year, (B) within ten (10) days after the end of each of the Directorsfiscal quarters (other than a fiscal quarter which is also the end of the Issuer’s fiscal year) a consolidated unaudited balance sheet for such fiscal quarter, a consolidated income statement for such fiscal quarter and a consolidated cash flow statement for such fiscal quarter, in each case all in accordance with GAAP, or generally accepted accounting principles, and each certified by the Chief Executive Officer and Chief Financial Officer as fairly presenting, in all material respects, the financial condition of the companies being reported on and their results of operations, subject to, in the case of unaudited financial statements, changes resulting from normal audit adjustments; and,
(ii) promptly upon their becoming available, one copy of (A) each report, notice or proxy statement sent by the Issuer or its Subsidiaries to securities holders generally, and (B) each registration statement, and each prospectus and all amendments thereto filed by the Issuer or its Subsidiaries with the SEC, provided, however, if any such document is available on the SEC’s XXXXX Filing System then the Issuer need not deliver a hard copy of such document to Investor.
Appears in 1 contract
Samples: Joint Strategic Alliance and Securities Purchase Agreement (American Oriental Bioengineering Inc)
Financial Information. The Company will furnish to each Major Holder the information set forth in this Section 7.2; provided, that the Company shall not be required to furnish such information to a Major Holder if the Board determines in good faith that such Major Holder is a competitor to the Company (provided that in no event shall Kinnevik (or its Affiliates) or Oak (or its Affiliates) be deemed to be a competitor to the Company and that, as of the Effective Date, Walgreens (and its Affiliates) is deemed to not be a competitor to the Company):
(a) As Until the consummation of an Initial --------------------- Public Offering, the Company will deliver to each holder of the Preferred Shares: (a) as soon as practicable and in any event within 90 days after the end close of each fiscal year of the Company, and in any event within one hundred fifty copies of (150i) days thereafter, a copy of the annual audited financial statements for such fiscal year for the Company and its Subsidiaries, if any, including therein balance sheets sheet of the Company and its Subsidiaries, if any, as of the end of such fiscal year and year, (ii) audited statements of income operations of the Company for such fiscal year, and members’ equity and (iii) audited statements of cash flows flow of the Company for such fiscal year, setting forth in each case in comparative form the corresponding figures of the previous annual period and the most recent annual operating budget for the preceding fiscal yearCompany, containing a budget of profit and loss and cash flow (the "Budget"), all in reasonable detail, prepared ------ in accordance with generally accepted accounting principles GAAP consistently applied (“GAAP”)throughout the periods involved and, all such consolidated statements except for the comparison to be duly the most recent Budget, together with the report of a firm of independent certified by such independent public accountants of recognized national standing approved by the Board to prepare such reportsstanding;
(b) As as soon as available practicable, and in any event within forty-five (45) 45 days after the end of each of the first three fiscal quarters of each fiscal year of the Company, an unaudited balance sheet of the Company and its Subsidiaries, if any, as of the end of such quarter and the related unaudited statements of income and members’ equity and of cash flows of the Company for the period commencing at the end of the previous each such fiscal year quarter and ending with the end unaudited statements of operations, shareholders' equity and cash flow for such fiscal quarter, setting forth in each case in comparative form the corresponding figures for the corresponding period of the preceding year's respective fiscal year quarter and the budget for such current yearmost recent Budget, all in reasonable detail and detail, prepared in accordance with GAAP consistently applied throughout the periods involved and certified as being correct and complete and fairly presenting the results of operations of the Company for the quarter indicated (subject to normal year-end audit adjustments and not including all footnotes thereto that may be required in accordance with GAAPthe absence of footnotes), by the principal financial officer of the Company;
(c) Upon request for each calendar month, as soon as practicable and in any event within 25 days after the close of such month, copies of (but not more frequently than i) the delivery balance sheet of the financial statements described in Sections 7.2(a) and 7.2(b)), a statement showing the number Company as of Units of each class and series of membership interests (including Profits Interests) and securities convertible into or exercisable for Units outstanding at the end of such month, (ii) statements of operations of the applicable period, the Junior Units issuable upon conversion or exercise of any outstanding securities convertible or exercisable Company for Junior Units and the exchange ratio or exercise price applicable theretosuch month, and (iii) statements of cash flow of the number of Units not yet issued but reserved Company for issuance under the Equity Incentive Plan, if anysuch month, all in sufficient detail reasonable detail, prepared in accordance with GAAP consistently applied throughout the periods involved and certified as being correct and complete and fairly presenting the results of operations of the Company for the month indicated, subject to permit normal recurring year-end audit adjustments, by the Preferred Unit Holders to calculate their respective percentage equity ownership in principal financial officer of the Company;
(d) As as soon as available practicable and in any event within thirty (30) not less than 30 days after prior to the end of each calendar monthfiscal year of the Company, a statement of recognized revenue, bookings and retained earnings on a monthly basis, compared against the corresponding figures from such month from the preceding fiscal year and the budget for such current yearBudget; and
(e) Not later than sixty such other reports and financial and other information as any holder of at least 5% of the Preferred Shares shall reasonably request; and
(60f) days after December 31 concurrently with the furnishing of each yearthe report pursuant to Section 6.3(a) and (b) hereof, an annual budget officer's certificate stating that the Company is not in default under, and quarterly has not breached, any material agreements or obligations, including, without limitation, this Agreement, or if any such default or breach exists, specifying the nature thereof and monthly operating budgets what actions the Company has taken and proposes to take with respect thereto. If for any period the Company shall have any Subsidiary or Subsidiaries whose accounts are consolidated with those of the Company, then the financial statements delivered for such fiscal year in a form period pursuant to the foregoing clauses (a), (b) and with such detail as may (c) of this Section 6.3 shall be acceptable to a majority the consolidated and consolidating financial statements of the DirectorsCompany and all such consolidated Subsidiaries and, if such Subsidiary or Subsidiaries are not consolidated with those of the Company, separate financial statements for such Subsidiary or Subsidiaries shall be provided.
Appears in 1 contract
Financial Information. (a) The Company will furnish to each Major Holder or transferee thereof under Section 2.14 the information set forth in this Section 7.2; provided, that the Company shall not be required to furnish such information to a Major Holder if the Board determines in good faith that such Major Holder is a competitor to the Company (provided that in no event shall Kinnevik (or its Affiliates) or Oak (or its Affiliates) be deemed to be a competitor to the Company and that, as of the Effective Date, Walgreens (and its Affiliates) is deemed to not be a competitor to the Company):
(a) following reports: As soon as practicable after the end of each fiscal year of the Companyyear, and in any event within one two hundred fifty seventy (150270) days thereafter, a copy of the annual audited financial statements for such fiscal year for the Company and its Subsidiaries, if any, including therein consolidated balance sheets of the Company and its Subsidiariessubsidiaries, if any, as of the end of such fiscal year year, and consolidated statements of income and members’ equity and of cash flows of the Company and its subsidiaries, if any, for such fiscal year, prepared in accordance with generally accepted accounting principles applied on a consistent basis and setting forth in each case in comparative form the corresponding figures for the preceding previous fiscal year, all prepared in accordance with generally accepted accounting principles consistently applied (“GAAP”), all such consolidated statements to be duly certified reasonable detail and audited by such independent public accountants of recognized national standing selected by the Company and approved by the Board to prepare such reportsBoard;
(b) As soon as available practicable after the end of each quarter, and in any event within forty-five (45) days after thereafter (other than the end of each of the first three quarters last calendar month of each fiscal year of the Companyyear), an unaudited consolidated balance sheet sheets of the Company and its Subsidiariessubsidiaries, if any, as of the end of such quarter the quarter, and the related unaudited consolidated statements of income and members’ equity and of cash flows of the Company and its subsidiaries, if any, for the period commencing at the end of the previous fiscal year and ending with the end of such quarter, prepared in accordance with generally accepted accounting principles applied on a consistent basis and setting forth in each case in comparative form the corresponding figures for the corresponding period of the preceding fiscal same quarter one year earlier; provided that footnotes and the budget for such current yearschedule disclosure appearing in audited financial statements shall not be required, all in reasonable detail and prepared in accordance with GAAP (subject to year-end audit adjustments and not including all footnotes thereto that may be required in accordance with GAAP)signed by the principal financial or accounting officer of the Company;
(c) Upon request (but not more frequently than the delivery of the financial statements described in Sections 7.2(a) and 7.2(b)), a statement showing the number of Units of each class and series of membership interests (including Profits Interests) and securities convertible into or exercisable for Units outstanding at As soon as practicable after the end of the applicable periodeach month, the Junior Units issuable upon conversion or exercise of any outstanding securities convertible or exercisable for Junior Units and the exchange ratio or exercise price applicable thereto, and the number of Units not yet issued but reserved for issuance under the Equity Incentive Plan, if any, all in sufficient detail as to permit the Preferred Unit Holders to calculate their respective percentage equity ownership in the Company;
(d) As soon as available and in any event within thirty (30) days after thereafter (other than the last calendar month of each fiscal year), unaudited consolidated balance sheets of the Company and its subsidiaries, if any, as of the end of the month, and unaudited consolidated statements of income and cash flows of the Company and its subsidiaries, if any, for such month, prepared in accordance with generally accepted accounting principles applied on a consistent basis and setting forth in each case in comparative form the figures for the same month one year earlier; provided that footnotes and schedule disclosure appearing in audited financial statements shall not be required, all in reasonable detail and signed by the principal financial or accounting officer of the Company; and
(d) As soon as practicable, but in any event thirty (30) days prior to the end of each calendar monthfiscal year, a statement of recognized revenuebudget for the next fiscal year, bookings and retained earnings prepared on a monthly basis, compared against the corresponding figures from such month from the preceding fiscal year and the budget for such current year; and
(e) Not later than sixty (60) days after December 31 of each year, an annual budget and quarterly and monthly operating as soon as prepared, any other updated or revised budgets for such fiscal year in a form prepared by the Company and with such detail as may be acceptable to a majority of approved by the DirectorsBoard.
Appears in 1 contract
Samples: Investors’ Rights Agreement (Syndax Pharmaceuticals Inc)
Financial Information. The Company In furtherance of the foregoing, Borrowers will furnish to each Major Holder the information set forth in this Section 7.2; provided, that the Company shall not be required to furnish such information to a Major Holder if the Board determines in good faith that such Major Holder is a competitor to the Company (provided that in no event shall Kinnevik Agent (or its Affiliates) or Oak (or its Affiliates) be deemed cause to be a competitor furnished to Agent) the Company following financial information and thatreports with respect to each Borrower, Guarantor each Project and/or each Operating Tenant (as of the Effective Dateapplicable), Walgreens (in each case in form and format and providing information satisfactory to Agent in its Affiliates) is deemed to not be a competitor to the Company):discretion:
(ai) As soon as practicable Within ninety (90) days after the end of each fiscal year year, Borrowers shall deliver or cause to be delivered to Agent a balance sheet and financial statements of the Companyeach Borrower and Operating Tenant, certified as true and correct in all respects, and in any event within one hundred fifty (150) days thereafter, a copy of the annual audited financial statements for such fiscal year for the Company and its Subsidiaries, if any, including therein balance sheets of the Company and its Subsidiaries, if any, as of the end of such fiscal year and statements of income and members’ equity and of cash flows of the Company for such fiscal year, setting forth in each case in comparative form the corresponding figures for the preceding fiscal year, all prepared in accordance with generally accepted accounting principles consistently applied (“GAAP”), all such consolidated statements Accounting Standards and fairly presenting the financial condition(s) of the person(s) referred to be duly certified by such independent public accountants therein as of recognized national standing approved by the Board to prepare such reportsdate(s) indicated;
(bii) As soon as available and in any event within forty-five Within sixty (4560) days after the end of each of the first three (3) fiscal quarters and within ninety (90) days after the end of the fourth fiscal quarter of each fiscal year of the Companyyear, an unaudited Borrowers shall deliver or cause to be delivered to Agent a balance sheet of the Company and its Subsidiaries, if any, Borrowers as of the end of such quarter fiscal quarter, and the related unaudited consolidated statements of income and membersearnings, partners’ equity and of cash flows for each of the Company for the period commencing at the end of the previous fiscal year and ending with the end of such quarter, setting forth in each case in comparative form the corresponding figures for the corresponding period of the preceding fiscal year and the budget for such current year, all in reasonable detail three prior months and prepared in accordance with GAAP (subject Accounting Standards and fairly presenting the financial condition(s) of the person(s) referred to year-end audit adjustments and not including all footnotes thereto that may be required in accordance with GAAP)therein as of the date(s) indicated;
(ciii) Upon request (but not more frequently than the delivery of the financial statements described in Sections 7.2(a) and 7.2(b)), a statement showing the number of Units of each class and series of membership interests (including Profits Interests) and securities convertible into or exercisable for Units outstanding at the end of the applicable period, the Junior Units issuable upon conversion or exercise of any outstanding securities convertible or exercisable for Junior Units and the exchange ratio or exercise price applicable thereto, and the number of Units not yet issued but reserved for issuance under the Equity Incentive Plan, if any, all in sufficient detail as to permit the Preferred Unit Holders to calculate their respective percentage equity ownership in the Company;
(d) As soon as available and available, but in any event within thirty sixty (3060) days after the end of each calendar monthfiscal quarter, a statement of recognized revenue, bookings with respect to the statements and retained earnings on a monthly basis, compared against the corresponding figures from such month calculations from the preceding fiscal year and the budget respective Operating Tenants for such current year; and
(e) Not later than sixty (60) days after December 31 of each year, an annual budget and quarterly and monthly operating budgets for such fiscal year in a form and with such detail as may be acceptable to a majority of the Directors.Projects for the prior fiscal quarter, the information under the headings “Quarterly Financial Reporting,” “Annual Financial Reporting,” “Reports of Regulatory Violations”, “Annual Budgets” and upon request of Agent, “Regulatory Reports with respect to each Facility” as set forth on Exhibit D of the Master Lease and required to be delivered to Borrowers and such other material reports and information reasonably requested by the Agent;
Appears in 1 contract
Financial Information. The Company will shall furnish the following reports to each Major Holder the information set forth in this Section 7.2; provided, that the Company shall not be required to furnish such information to a Major Holder if the Board determines in good faith that such Major Holder is a competitor to the Company (provided that in no event shall Kinnevik (or its Affiliates) or Oak (or its Affiliates) be deemed to be a competitor to the Company and that, as of the Effective Date, Walgreens (and its Affiliates) is deemed to not be a competitor to the Company):Purchaser:
(ai) As as soon as practicable after the end of each fiscal year of quarter (except the Companyfourth quarter), and in any event within one hundred fifty (150) 45 days thereafter, a copy an unaudited income statement and statement of the annual audited financial statements cash flows for such fiscal year for the Company quarter and its Subsidiaries, if any, including therein an unaudited balance sheets of the Company and its Subsidiaries, if any, sheet as of the end of such fiscal year quarter, in each case prepared, to the extent consolidation is required under generally accepted accounting principles applied on a consistent basis, on a consolidated and a consolidating basis for the Company, GMH and any subsidiaries hereafter existing; within 30 days after the end of each month, an unaudited monthly income statement, statement of cash flows and balance sheet, in each case prepared, to the extent consolidation is required under generally accepted accounting principles applied on a consistent basis, on a consolidated and a consolidating basis for the Company, GMH and any subsidiaries hereafter existing, subject to normal, non- recurring year-end adjustments; and an annual budget (including projected monthly consolidated and consolidating income statements, balance sheets and statements of cash flow) at least 15 days prior to the beginning of each fiscal year. The monthly financial statements shall include comparisons to the then applicable annual budget and summaries of financial plans of the Company, GMH and any Subsidiaries.
(ii) as soon as practicable after the end of each fiscal year, and in any event within 90 days thereafter, an income statement and members’ equity and statement of cash flows of the Company for such fiscal year, setting forth a balance sheet of the Company, GMH and their subsidiaries prepared on a consolidated basis as of the end of such fiscal year, and a statement of changes in each case in comparative form the corresponding figures financial condition for the preceding such fiscal year, all prepared in accordance with generally accepted accounting principles consistently applied (“GAAP”), all such consolidated statements to be duly certified by such independent public accountants of recognized national standing approved selected by the Board to prepare such reports;Company.
(biii) As as soon as available and available, but in any event event: (i) within forty-five (45) 30 days after the end of each of the first three quarters beginning of each fiscal year of the CompanyGMH Companies, an unaudited balance sheet a copy of the Company plan and its Subsidiariesforecast (including a projected closing balance sheets, if any, as income statements and funds flow statements) of the end of such quarter and the related unaudited statements of income and members’ equity and of cash flows of the Company for the period commencing at the end of the previous fiscal year and ending with the end of such quarter, setting forth in each case in comparative form the corresponding figures for the corresponding period of the preceding fiscal year and the budget GMH Companies for such current fiscal year, all in reasonable detail ; and prepared in accordance with GAAP (subject to year-end audit adjustments and not including all footnotes thereto that may be required in accordance with GAAP);
(cii) Upon request (but not more frequently than the delivery of the financial statements described in Sections 7.2(a) and 7.2(b)), a statement showing the number of Units of each class and series of membership interests (including Profits Interests) and securities convertible into or exercisable for Units outstanding at the end of the applicable period, the Junior Units issuable upon conversion or exercise of any outstanding securities convertible or exercisable for Junior Units and the exchange ratio or exercise price applicable thereto, and the number of Units not yet issued but reserved for issuance under the Equity Incentive Plan, if any, all in sufficient detail as to permit the Preferred Unit Holders to calculate their respective percentage equity ownership in the Company;
(d) As soon as available and in any event within thirty (30) 30 days after the end of the second fiscal quarter of the GMH Companies in each calendar month, a statement of recognized revenue, bookings and retained earnings on a monthly basis, compared against the corresponding figures from such month from the preceding fiscal year and the budget for such current year; and
(e) Not later than sixty (60) days after December 31 of each year, an annual budget update of each plan and quarterly and monthly operating budgets for such forecast delivered with respect to the fiscal year in which such fiscal quarter occurs, to the extent there are any material changes in such plan resulting from actual and then anticipated results and forecasts.
(iv) Promptly upon the filing or making thereof, copies of each filing and report made by the GMH Companies with or to any securities exchange or to the Securities and Exchange Commission and of each written communication from the GMH Companies to its shareholders generally.
(v) as and when provided to the Senior Subordinated Lender, any reports furnished to the Senior Subordinated Lender. All financial statements provided for above shall be prepared in accordance with general accepted accounting principles, applied on a form and with consistent basis (except that such detail as unaudited financial statements may be acceptable prepared without footnotes and will be subject to a majority of the Directorsnormal, non-recurring year-end audit adjustments).
Appears in 1 contract
Samples: Securities Purchase Agreement (General Housing Inc)
Financial Information. The Company will Holdings shall furnish to each Major Holder the information set forth in this Section 7.2; provided, that Agent (and the Company shall not be required Agent agrees to furnish such information to a Major Holder if the Board determines in good faith that such Major Holder is a competitor promptly deliver or make available to the Company (provided that in no event shall Kinnevik (or its Affiliates) or Oak (or its Affiliates) be deemed to be a competitor to the Company and that, as of the Effective Date, Walgreens (and its Affiliates) is deemed to not be a competitor to the CompanyLenders):
(a) As soon as practicable after the end of each fiscal year of the Companyavailable, and but in any event within one hundred fifty not later than 90 days after the close of each Fiscal Year (150) days thereaftercommencing with the Fiscal Year ending December 31, a copy of the annual 2022), audited financial statements for such fiscal year for the Company and its Subsidiaries, if any, including therein consolidated balance sheets of the Company Consolidated Parties, as at the end of such Fiscal Year, and its Subsidiariesthe related consolidated statements of operations, if anyshareholders’ equity and cash flows, setting forth, in each case, in comparative form the figures for and as of the end of the previous Fiscal Year, plus a customary narrative review for such fiscal year Fiscal Year, fairly presenting in all material respects the financial position and statements the results of income and members’ equity and of cash flows operations of the Company for such fiscal year, setting forth in each case in comparative form Consolidated Parties as at the corresponding figures date thereof and for the preceding fiscal yearFiscal Year then ended, all and prepared in accordance with generally accepted accounting principles consistently applied (“GAAP”), GAAP in all such material respects. Such consolidated statements to shall be duly certified reported on by such independent public accountants of recognized national standing approved by (without a “going concern” or like qualification or exception, or qualification arising out of the Board scope of the audit unless such qualification or exception is solely with respect to, or resulting solely from, (i) an upcoming maturity date of any material Indebtedness that is scheduled to prepare occur within one year from the date such reportsreport is delivered or (ii) any potential inability to satisfy any financial maintenance covenant included in any Indebtedness of Holdings or any Subsidiary on a future date or in a future period);
(b) As soon as available and available, but in any event within forty-five (45) not later than 45 days after the end of each of the first three quarters Fiscal Quarters of each fiscal year Fiscal Year (commencing with the Fiscal Quarter ending June 30, 2022), unaudited consolidated balance sheets of the Company, an unaudited balance sheet of the Company and its Subsidiaries, if anyConsolidated Parties, as of at the end of such quarter Fiscal Quarter, and the related unaudited consolidated statements of operations and comprehensive income and members’ equity and of cash flows of the Company Consolidated Parties for such Fiscal Quarter and for the period commencing at from the end beginning of the previous fiscal year and ending with Fiscal Year to the end of such quarterFiscal Quarter, setting forth forth, in each case case, in reasonable detail, in comparative form form, the corresponding figures for and as of the corresponding period of in the preceding fiscal year and the budget for such current yearprior Fiscal Year, all in reasonable detail and prepared in accordance all material respects in conformity with GAAP (GAAP, subject to normal year-end audit adjustments and not including the absence of footnotes, and certified by a Responsible Officer of Holdings as being prepared in all footnotes thereto that may be required material respects in accordance conformity with GAAP);
(c) Upon request (but not more frequently than GAAP and fairly presenting in all material respects the delivery of the Consolidated Parties’ financial statements described in Sections 7.2(a) and 7.2(b)), a statement showing the number of Units of each class and series of membership interests (including Profits Interests) and securities convertible into or exercisable for Units outstanding position as at the dates thereof and their results of operations for the periods then ended, subject to normal year-end of the applicable period, the Junior Units issuable upon conversion or exercise of any outstanding securities convertible or exercisable for Junior Units adjustments and the exchange ratio or exercise price applicable thereto, and the number absence of Units not yet issued but reserved for issuance under the Equity Incentive Plan, if any, all in sufficient detail as to permit the Preferred Unit Holders to calculate their respective percentage equity ownership in the Company;
footnotes; (d) As soon as available and in any event within thirty (30) days after the end of each calendar month, a statement of recognized revenue, bookings and retained earnings on a monthly basis, compared against the corresponding figures from such month from the preceding fiscal year and the budget for such current year; and
(e) Not later than sixty (60) days after December 31 of each year, an annual budget and quarterly and monthly operating budgets for such fiscal year in a form and with such detail as may be acceptable to a majority of the Directors.
Appears in 1 contract
Samples: Credit Agreement (United Rentals North America Inc)
Financial Information. The Company will furnish Furnish to each Major Holder Guarantied Party:
(i) as soon as available, but in any event within fifteen days of the information set forth Closing Date, unaudited financial statements of Guarantor and its Subsidiaries as at January 31, 2005, consisting of a balance sheet and the related consolidated statements of income, stockholders’ equity and cash flows for the one-month period ending on such date, all in this Section 7.2; provided, reasonable detail and certified by the chief financial officer of Guarantor that they fairly present the Company shall not be required to furnish such information to a Major Holder if the Board determines in good faith that such Major Holder is a competitor to the Company (provided that in no event shall Kinnevik (or financial condition of Guarantor and its Affiliates) or Oak (or its Affiliates) be deemed to be a competitor to the Company and that, Subsidiaries as of the Effective Date, Walgreens (and its Affiliates) is deemed to not be a competitor to the Company):dates indicated.
(aii) As as soon as practicable available, but in any event within ninety (90) days after the end of each fiscal year of the Company, and in any event within one hundred fifty (150) days thereafterGuarantor, a copy of the annual audited financial statements for such fiscal year for the Company consolidated balance sheet of Guarantor and its Subsidiaries, if any, including therein balance sheets of the Company and its Subsidiaries, if any, consolidated Subsidiaries as of at the end of such each fiscal year and the related consolidated statements of income and members’ equity retained earnings (or comparable statement) employed in the business and of changes in financial position and cash flows of the Company flow for such fiscal year, setting forth in each case in comparative form the corresponding figures for the preceding fiscal previous year, all prepared in accordance with generally accepted accounting principles consistently applied (“GAAP”), all such consolidated statements to be duly accompanied by a report and opinion thereon of independent certified by such independent public accountants of recognized national standing approved by the Board acceptable to prepare such reportsGuarantied Party;
(biii) As as soon as available and available, but in any event within forty-five (45) days after the end of each of the first three fiscal quarters of each fiscal year of the CompanyGuarantor, an the Guarantor’s unaudited consolidated balance sheet of the Company itself and its Subsidiaries, if any, consolidated Subsidiaries as of at the end of such quarter period and the related unaudited consolidated statements of income and members’ equity retained earnings (or comparable statement) and of changes in financial position and cash flows of the Company flow for the such period commencing at the end of the previous fiscal and year and ending with the end of such quarterto date, setting forth in each case in comparative form the corresponding figures for the corresponding period of the preceding fiscal year and the budget for such current year, all in reasonable detail and prepared in accordance with GAAP (subject to year-end audit adjustments and not including all footnotes thereto that may be required in accordance with GAAP);
(c) Upon request (but not more frequently than the delivery of the financial statements described in Sections 7.2(a) and 7.2(b)), a statement showing the number of Units of each class and series of membership interests (including Profits Interests) and securities convertible into or exercisable for Units outstanding as at the end of the applicable period, previous fiscal year as to the Junior Units issuable upon conversion or exercise of any outstanding securities convertible or exercisable for Junior Units balance sheet and the exchange ratio or exercise price applicable thereto, and figures for the number of Units not yet issued but reserved for issuance under the Equity Incentive Plan, if any, all in sufficient detail previous corresponding period as to permit the Preferred Unit Holders other statements, certified by a duly authorized officer of the Guarantor as being fairly stated in all material respects subject to calculate their respective percentage equity ownership year end adjustments; and all such financial statements to be complete and correct in the Companyall material respects and to be prepared in reasonable detail acceptable to Guarantied Party and in accordance with GAAP;
(div) As soon as available together with each delivery of financial statements of Guarantor and its Subsidiaries pursuant to subdivisions (ii) and (iii) above, an officers’ certificate stating that the signers have reviewed the terms of the Indenture, the Loan Documents and the Station Agreements to which Guarantor is a party, and have made, or caused to be made under their supervision, a review in any event within thirty (30) days after reasonable detail of the transactions and condition of Guarantor and its Subsidiaries during the accounting period covered by such financial statements and that such review has not disclosed the existence during or at the end of each calendar monthsuch accounting period, a statement of recognized revenue, bookings and retained earnings on a monthly basis, compared against that the corresponding figures from such month from the preceding fiscal year and the budget for such current year; and
(e) Not later than sixty (60) days after December 31 of each year, an annual budget and quarterly and monthly operating budgets for such fiscal year in a form and with such detail as may be acceptable to a majority signers do not have knowledge of the Directorsexistence as at the date of the officers’ certificate, of any condition or event which constitutes an event of default under the Indenture, the Loan Documents or the Station Documents to which it is a party, or, if any such condition or event existed or exists, specifying the nature and period of existence thereof and what action Guarantor has taken, is taking and proposes to take with respect thereto.
Appears in 1 contract
Samples: Guaranty (Granite Broadcasting Corp)
Financial Information. The Company will Holdings shall furnish to each Major Holder the information set forth in this Section 7.2; provided, that Agent (and the Company shall not be required Agent agrees to furnish such information to a Major Holder if the Board determines in good faith that such Major Holder is a competitor promptly deliver or make available to the Company (provided that in no event shall Kinnevik (or its Affiliates) or Oak (or its Affiliates) be deemed to be a competitor to the Company and that, as of the Effective Date, Walgreens (and its Affiliates) is deemed to not be a competitor to the CompanyLenders):
(a) As soon as practicable after the end of each fiscal year of the Companyavailable, and but in any event within one hundred fifty not later than ninety (15090) days thereafterafter the close of each Fiscal Year (commencing with the Fiscal Year ending December 31, a copy of the annual 2015), audited financial statements for such fiscal year for the Company and its Subsidiaries, if any, including therein consolidated balance sheets of the Company Consolidated Parties, as at the end of such Fiscal Year, and its Subsidiariesthe related consolidated statements of operations, if anyshareholders’ equity and cash flows, setting forth, in each case, in comparative form the figures for and as of the end of the previous Fiscal Year, plus a customary narrative review for such fiscal year Fiscal Year, fairly presenting in all material respects the financial position and statements the results of income and members’ equity and of cash flows operations of the Company for such fiscal year, setting forth in each case in comparative form Consolidated Parties as at the corresponding figures date thereof and for the preceding fiscal yearFiscal Year then ended, all and prepared in accordance with generally accepted accounting principles consistently applied (“GAAP”), GAAP in all such material respects. Such consolidated statements to shall be duly certified reported on by such independent public accountants of recognized national standing approved by (without a “going concern” or like qualification or exception, or qualification arising out of the Board scope of the audit unless such qualification or exception is solely with respect to, or resulting solely from (x) an upcoming maturity date of any material Indebtedness that is scheduled to prepare occur within one year from the date such reports;report is delivered or (y) any potential inability to satisfy any financial maintenance covenant included in any Indebtedness of Holdings or any Subsidiary on a future date or in a future period),
(b) As soon as available and available, but in any event within not later than forty-five (45) days after the end of each of the first three quarters Fiscal Quarters of each fiscal year Fiscal Year (commencing with the Fiscal Quarter ending March 31, 2015), unaudited consolidated balance sheets of the Company, an unaudited balance sheet of the Company and its Subsidiaries, if anyConsolidated Parties, as of at the end of such quarter Fiscal Quarter, and the related unaudited consolidated statements of operations and comprehensive income and members’ equity and of cash flows of the Company Consolidated Parties for such Fiscal Quarter and for the period commencing at from the end beginning of the previous fiscal year and ending with Fiscal Year to the end of such quarterFiscal Quarter, setting forth forth, in each case case, in reasonable detail, in comparative form form, the corresponding figures for and as of the corresponding period of in the preceding fiscal year and the budget for such current yearprior Fiscal Year, all in reasonable detail and prepared in accordance all material respects in conformity with GAAP (GAAP, subject to normal year-end audit adjustments and not including the absence of footnotes and certified by a Responsible Officer of Holdings as being prepared in all footnotes thereto that may be required material respects in accordance conformity with GAAP);GAAP and fairly presenting in all material respects the Consolidated Parties’ financial position as at the dates thereof and their results of operations for the periods then ended, subject to normal year-end adjustments and the absence of footnotes.
(c) Upon request (but not more frequently than the delivery of the financial statements described in Sections 7.2(a) and 7.2(b)), a statement showing the number of Units of each class and series of membership interests (including Profits Interests) and securities convertible into or exercisable for Units outstanding at the end of the applicable period, the Junior Units issuable upon conversion or exercise of any outstanding securities convertible or exercisable for Junior Units and the exchange ratio or exercise price applicable thereto, and the number of Units not yet issued but reserved for issuance under the Equity Incentive Plan, if any, all in sufficient detail as to permit the Preferred Unit Holders to calculate their respective percentage equity ownership in the Company;
(d) As soon as available and available, but in any event within thirty (30) days after the end of each calendar month, a statement of recognized revenue, bookings and retained earnings on a monthly basis, compared against the corresponding figures from such month from the preceding fiscal year and the budget for such current year; and
(e) Not not later than sixty (60) days after December 31 the beginning of each yearFiscal Year, an annual budget forecasts (to include forecasted consolidated balance sheets, and the related forecasted consolidated statements of operations, shareholders’ equity and cash flows, and U.S. Borrowing Base, Canadian Borrowing Base, U.S. Availability and Canadian Availability projections) for the Consolidated Parties as at the end of and for each fiscal quarter of such Fiscal Year.
(d) Concurrently with the delivery of the annual audited Financial Statements pursuant to Section 7.2(a) and the quarterly Financial Statements pursuant to Section 7.2(b), a duly completed Compliance Certificate signed by a Responsible Officer of Holdings.
(e) Such additional information as the Agent on its own behalf or on behalf of any Lender (acting through the Agent) may from time to time reasonably request regarding the financial and monthly operating budgets for business affairs of any Obligor or any of its Subsidiaries. Documents required to be delivered pursuant to Section 7.2(a) or (b) (to the extent any such fiscal year documents are included in a form and materials otherwise filed with such detail as the SEC) may be acceptable delivered electronically and if so delivered, shall be deemed to have been delivered on the date on which such documents are posted on Holdings’ behalf on an Internet or intranet website, if any, to which each Lender and the Agent have access (whether a majority commercial, third-party website or whether sponsored by the Agent); provided that Holdings shall notify the Agent (which shall notify each Lender) of the Directorsposting of any such documents.
Appears in 1 contract
Samples: Credit Agreement (United Rentals North America Inc)
Financial Information. The Company will furnish (a) Borrower shall deliver to each Major Holder the information set forth in this Section 7.2; providedAdministrative Agent, that the Company shall not be required to furnish such information to a Major Holder if the Board determines in good faith that such Major Holder is a competitor to the Company (provided that as soon as available, but in no event shall Kinnevik later than ninety (or its Affiliates90) or Oak days, with respect to Ryman Guarantor, and one hundred twenty (or its Affiliates120) be deemed days, with respect to be a competitor to the Company Borrower, Operating Lessee and thatRida Guarantor, as of the Effective Date, Walgreens after (and its Affiliatesi) is deemed to not be a competitor to the Company):
(a) As soon as practicable after the end of each fiscal year of the CompanyBorrower, Operating Lessee and in any event within one hundred fifty (150) days thereafterRyman Guarantor, a copy of the annual audited financial statements for such fiscal year for the Company Financial Statements of Borrower, Operating Lessee and its SubsidiariesRyman Guarantor, if any, including therein balance sheets of the Company and its Subsidiaries, if anyas applicable, as of the end of such fiscal year year, together with all supporting information and statements property schedules as Administrative Agent may reasonably request, accompanied by an opinion of income and members’ equity and a nationally recognized independent certified public accountant which report shall state that such Financial Statements present fairly, in all material respects, the financial position of cash flows Borrower, Operating Lessee or Ryman Guarantor, as applicable, as of the Company for last day of such entity’s fiscal year, setting forth in ; and (ii) the end of each case in comparative form the corresponding figures for the preceding fiscal calendar year, a copy of the certified Financial Statements of Rida Guarantor as at the end of such calendar year, together with all prepared in accordance with generally accepted accounting principles consistently applied (“GAAP”), all such consolidated statements to be duly certified by such independent public accountants of recognized national standing approved by the Board to prepare such reports;supporting information and property schedules as Administrative Agent may reasonably request.
(b) As Borrower shall deliver to Administrative Agent, as soon as available and available, but in any no event within later than (i) forty-five (45) days after the end of each of the first three fiscal quarters of each the fiscal year of the CompanyRyman Guarantor, an unaudited balance sheet a copy of the Company and its Subsidiaries, if any, unaudited Financial Statements of Ryman Guarantor as of the end of such quarter fiscal quarter, together with all supporting information and the related unaudited statements of income property schedules as Administrative Agent may reasonably request; and members’ equity (ii) each February 1 and of cash flows August 1, a copy of the Company for the period commencing at the end unaudited, semi-annual Financial Statements of the previous fiscal year Rida Guarantor, together with all supporting information and ending with the end of such quarter, setting forth in each case in comparative form the corresponding figures for the corresponding period of the preceding fiscal year and the budget for such current year, all in reasonable detail and prepared in accordance with GAAP (subject to year-end audit adjustments and not including all footnotes thereto that property schedules as Administrative Agent may be required in accordance with GAAP);
(c) Upon request (but not more frequently than the delivery of the financial statements described in Sections 7.2(a) and 7.2(b)), a statement showing the number of Units of each class and series of membership interests (including Profits Interests) and securities convertible into or exercisable for Units outstanding at the end of the applicable period, the Junior Units issuable upon conversion or exercise of any outstanding securities convertible or exercisable for Junior Units and the exchange ratio or exercise price applicable thereto, and the number of Units not yet issued but reserved for issuance under the Equity Incentive Plan, if any, all in sufficient detail as to permit the Preferred Unit Holders to calculate their respective percentage equity ownership in the Company;
(d) As soon as available and in any event within thirty (30) days after the end of each calendar month, a statement of recognized revenue, bookings and retained earnings on a monthly basis, compared against the corresponding figures from such month from the preceding fiscal year and the budget for such current year; and
(e) Not later than sixty (60) days after December 31 of each year, an annual budget and quarterly and monthly operating budgets for such fiscal year in a form and with such detail as may be acceptable to a majority of the Directorsreasonably request.
Appears in 1 contract
Samples: Loan Agreement (Ryman Hospitality Properties, Inc.)
Financial Information. The Company will furnish the following information as set forth in (a) to (f) to each Major Holder Shareholder, and will furnish the following information as set forth in this Section 7.2; provided, that the Company shall not be required (a) to furnish such information to a Major Holder if the Board determines in good faith that such Major Holder is a competitor (c) to the Company (provided that in no event shall Kinnevik (or its Affiliates) or Oak (or its Affiliates) be deemed to be a competitor to the Company and that, as of the Effective Date, Walgreens (and its Affiliates) is deemed to not be a competitor to the Company):Significant Shareholder:
(a) As soon as practicable after the end of each fiscal year of the Companyyear, and in any event within one hundred fifty ninety (15090) days thereafter, a copy of the annual audited financial statements for such fiscal year for the Company and its Subsidiaries, if any, including therein consolidated balance sheets sheet of the Company and its Subsidiaries, if anythe Group Entities, as of the end of such fiscal year year, and consolidated statements of income and members’ equity and of cash flows of the Company and the Group Entities, for such fiscal year, prepared in English in accordance with US GAAP and setting forth in each case in comparative form the corresponding applicable figures from the Company’s operating plan for such year and the figures for the preceding previous fiscal year, all prepared in reasonable detail and audited by one of the Big Four which is registered with the Public Company Accounting Oversight Board and selected by the Company in accordance with generally accepted accounting principles consistently applied (“GAAP”), all such consolidated statements to be duly certified by such independent public accountants the terms of recognized national standing approved by this Agreement and the Board to prepare such reportsSeventh Restated Articles;
(b) As soon as available practicable after the end of each fiscal year, and in any event within ninety (90) days thereafter, the Budget of the next fiscal year;
(c) As soon as practicable after the end of each fiscal quarter, and in any event within forty-five (45) days after the end of each of the first three quarters of each fiscal year of the Companythereafter, an unaudited a consolidated balance sheet of the Company and its Subsidiaries, if any, the Group Entities as of the end of such quarter fiscal quarter, and the related unaudited consolidated statements of income and members’ equity and of cash flows for such period, prepared in English in accordance with US GAAP, and quarterly management accounts containing key operating indicators and setting forth in comparative form the figures from the Company’s operating plan for the corresponding period;
(d) As soon as practicable after the end of each calendar month, and in any event within twenty (20) days thereafter, a consolidated balance sheet of the Company for and the period commencing at the end Group Entities as of the previous fiscal year and ending with the end of such quartercalendar month, and consolidated statements of income and cash flows for such period, prepared in English in accordance with US GAAP and setting forth in each case in comparative form the corresponding figures from the Company’s operating plan for the corresponding period of the preceding fiscal year and the budget for such current year, all in reasonable detail and prepared in accordance with GAAP (subject to year-end audit adjustments and not including all footnotes thereto that may be required in accordance with GAAP)period;
(c) Upon request (but not more frequently than the delivery of the financial statements described in Sections 7.2(a) and 7.2(b)), a statement showing the number of Units of each class and series of membership interests (including Profits Interests) and securities convertible into or exercisable for Units outstanding at the end of the applicable period, the Junior Units issuable upon conversion or exercise of any outstanding securities convertible or exercisable for Junior Units and the exchange ratio or exercise price applicable thereto, and the number of Units not yet issued but reserved for issuance under the Equity Incentive Plan, if any, all in sufficient detail as to permit the Preferred Unit Holders to calculate their respective percentage equity ownership in the Company;
(de) As soon as available and practicable, but in any event within thirty five (305) days Business Days after the end filing or submission of each calendar monthany material reports or other material documents by the Company or any Group Entity with any Governmental Authority or securities exchange, a statement copies of recognized revenue, bookings and retained earnings on a monthly basis, compared against the corresponding figures from any such month from the preceding fiscal year and the budget for such current yearreports or documents so filed or submitted; and
(ef) Not later than sixty As soon as practicable, but in any event within three (603) days Business Days after December 31 providing such information to all holders of each yearCapital Stock of a Group Entity, an annual budget as applicable, copies of all such documents or other information sent to such holders. Notwithstanding the foregoing, the Series G Preferred Shareholders acknowledge that the Company is a material Subsidiary of Baidu, Inc. whose financial statements are consolidated with those of Baidu, Inc. and quarterly that the material financial and monthly operating budgets for such fiscal year in a form and with such detail as may be acceptable to a majority business conditions of the DirectorsCompany are disclosed in the annual reports of Baidu, Inc. The Series G Preferred Shareholders shall have the right to obtain such information with respect to the Company as disclosed in the annual reports of Baidu, Inc. In the event that any Series G Preferred Shareholder requests from the Company any information that is not disclosed in the annual reports of Baidu, Inc., the Company shall not be obligated to furnish such information to such Series G Preferred Shareholder if the Company determines in good faith that such information is confidential or proprietary or is not otherwise suitable for disclosure to such Series G Preferred Shareholder.
Appears in 1 contract
Samples: Shareholder Agreement (iQIYI, Inc.)
Financial Information. (a) The Company will furnish maintain, and cause each Subsidiary to each Major Holder the information set forth maintain, a system of accounting established and administered in this Section 7.2; providedaccordance with sound business practices to permit preparation of financial statements in accordance with GAAP.
(b) So long as at least 20,000 Shares are outstanding, that the Company shall not be required will deliver to furnish such information to a Major Holder if (I) the Board determines in good faith that such Major Holder is a competitor to Fleming Holders and (II) each Permitted Transferee, the Company (provided that in no event shall Kinnevik (or its Affiliates) or Oak (or its Affiliates) be deemed to be a competitor to the Company and that, as of the Effective Date, Walgreens (and its Affiliates) is deemed to not be a competitor to the Company):following:
(ai) As as soon as practicable but not later than five (5) Business Days after their issuance, and in any event within ninety (90) days after the end close of each fiscal year of the Company, and in any event within one hundred fifty (150A) days thereafter, a copy of the annual audited financial statements for such fiscal year for the Company and its Subsidiaries, if any, including therein consolidated balance sheets sheet of the Company and its Subsidiaries, if any, Subsidiaries as of the end of such fiscal year and (B) consolidated statements of income and members’ operations, stockholders' equity and of cash flows of the Company and its Subsidiaries for such fiscal year, setting forth in each case setting forth in comparative form the corresponding figures for the preceding fiscal year, all prepared in accordance with generally accepted accounting principles consistently applied (“GAAP”), all such consolidated balance sheets and statements to be duly in reasonable detail and certified without qualification by Ernst & Young LLP or any other "Big Five" independent public accounting firm selected by the Company, and such statements shall be accompanied by a management analysis of any material differences between the results for such fiscal year and the corresponding figures for the preceding year; the Company's Annual Report on Form 10-K shall satisfy such requirement provided that it is in compliance with all applicable requirements of the SEC and is certified by such independent public accountants of recognized national standing approved by the Board to prepare such reportsa "Big Five" accounting firm;
(bii) As as soon as available practicable, copies (A) of all financial statements, proxy material or reports sent to the Company's or any Subsidiary's stockholders, (B) of any public press releases and (C) of all reports or registration statements filed with the Commission pursuant to the Securities Act or the Securities Exchange Act;
(iii) as soon as practicable and in any event within forty-five (45) days after the end close of each of the first three (3) fiscal quarters of each fiscal year of the Company, an unaudited (A) a consolidated balance sheet of the Company and its Subsidiaries, if any, Subsidiaries as of the end of such quarter and the related unaudited fiscal quarter, (B) consolidated statements of income and members’ operations, stockholders' equity and of cash flows of the Company and its Subsidiaries for the period commencing at the end portion of the previous fiscal year and ending ended with the end of such quarter, in each case in reasonable detail, certified by (I) the Chief Financial Officer, (II) the Chief Executive Officer or (III) the President of the Company and setting forth in comparative form the corresponding figures for the comparable period one year prior thereto (subject to normal year-end adjustments), together with a management analysis of any material differences between such results and the corresponding figures for such prior period and (C) a certificate of (I) the Chief Financial Officer, (II) the Chief Executive Officer or (III) the President certifying the Company's compliance with the covenants contained in Section 9 of this Agreement; the Company's Quarterly Report on Form 10-Q shall satisfy such requirement provided that it is in compliance with all applicable requirements of the SEC;
(iv) as soon as practicable but not later than thirty (30) days after the end of each month other than the final month of the Company's fiscal year, (A) an unaudited consolidated balance sheet of the Company and its Subsidiaries as at the end of such month and (B) unaudited consolidated statements of operations, stockholders' equity and cash flows of the Company and its Subsidiaries for the portion of the fiscal year ended with the end of such month, in each case in reasonable detail, setting forth in comparative form the corresponding figures for the corresponding period one year prior thereto (subject to normal year-end adjustments);
(v) as soon as practicable and without duplication of any of the preceding fiscal year above items, any other materials furnished to the Company's Board of Directors or to holders of the Company's capital stock or Indebtedness, including, without limitation, any compliance certificates furnished in respect of such Indebtedness, which shall be delivered to the Fleming Designee(s) and the Transferee Designee(s); and
(vi) as soon as practicable, such other information as may reasonably be requested by (I) the Fleming Holders or (II) any Permitted Transferee.
(x) Xhe Company will deliver to each member of the Company's Board of Directors and each observer to the Company's Board of Directors appointed pursuant to Section 3(a) of the Stockholders' Agreement, as soon as practicable (and in the case of (iii), prior to the end of each fiscal year) and without duplication of any of the items listed below, the following:
(i) copies of any annual, special or interim audit reports or management or comment letters with respect to the Company or its Subsidiaries or their operations submitted to the Company by independent public accountants;
(ii) copies of summary financial information prepared on a quarterly basis regarding the Company on a consolidated basis as presented to the Board and any other summary financial information otherwise prepared;
(iii) copies of the annual budget and business plan for the next fiscal year;
(iv) copies of all formal communications, from time to time, to directors of the Company (including without limitation all information furnished to such current yeardirectors in connection with such communications), and copies of minutes of meetings of the Board of Directors (and of any executive committees thereof) of the Company;
(v) notice of default under any material agreement, contract or other instrument to which the Company or any of its Subsidiaries is a party or by which any of them is bound;
(vi) notice of any action or proceeding which has been commenced or threatened against the Company or any of its Subsidiaries and which, if adversely determined, would have, individually or in the aggregate, a material adverse effect on the assets, properties, liabilities, business, affairs, results of operations, condition (financial or otherwise) or prospects of the Company on a consolidated basis; and
(vii) copies of all filings made with the Commission.
(d) All such financial statements referred to in reasonable detail and this Section 7.1 shall be prepared in accordance with GAAP (except for any change in accounting principles specified in the accompanying certificate, in the financial statements themselves or required by GAAP, and except that any interim financial statements may omit notes and may be subject to normal year-end audit adjustments and not including all footnotes thereto that may be required in accordance with GAAPadjustments);
(c) Upon request (but not more frequently than the delivery of the financial statements described in Sections 7.2(a) and 7.2(b)), a statement showing the number of Units of each class and series of membership interests (including Profits Interests) and securities convertible into or exercisable for Units outstanding at the end of the applicable period, the Junior Units issuable upon conversion or exercise of any outstanding securities convertible or exercisable for Junior Units and the exchange ratio or exercise price applicable thereto, and the number of Units not yet issued but reserved for issuance under the Equity Incentive Plan, if any, all in sufficient detail as to permit the Preferred Unit Holders to calculate their respective percentage equity ownership in the Company;
(d) As soon as available and in any event within thirty (30) days after the end of each calendar month, a statement of recognized revenue, bookings and retained earnings on a monthly basis, compared against the corresponding figures from such month from the preceding fiscal year and the budget for such current year; and.
(e) Not later than sixty Without limiting the foregoing provisions of this Section 7.1, the Company agrees that, if requested in writing by any holder of Shares, it will not deliver to such holder (60until otherwise instructed by such holder) days after December 31 (x) any non-public information or non-public materials regarding the Company or any Subsidiary (whether described in this Section 7.1 or otherwise) and (y) any information (whether or not included in clause (x)) which such holder specifies that it does not want to receive. The Company shall comply with any such request with respect to each person entitled to information hereunder, until instructed otherwise by the then holder of each year, an annual budget and quarterly and monthly operating budgets for such fiscal year in a form and with such detail as may be acceptable to a majority of the DirectorsShares.
Appears in 1 contract
Samples: Preferred Stock Purchase Agreement (Caliber Learning Network Inc)
Financial Information. The Company will furnish to each Major Holder the information set forth in this Section 7.2; provided, that the Company Borrower shall not be required to furnish such information to a Major Holder if the Board determines in good faith that such Major Holder is a competitor deliver to the Company (provided that Administrative Agent, in no event shall Kinnevik (or its Affiliates) or Oak (or its Affiliates) be deemed to be a competitor form and detail reasonably satisfactory to the Company and that, as of the Effective Date, Walgreens (and its Affiliates) is deemed to not be a competitor to the Company):Administrative Agent:
(a) As as soon as practicable available, but in any event within 90 days after the end of each fiscal year of the CompanyBorrower (commencing with the fiscal year ended December 31, and in any event within one hundred fifty (150) days thereafter2007), a copy consolidated balance sheet of the annual audited financial statements for such fiscal year for the Company Borrower and its Subsidiaries, if any, including therein balance sheets of the Company and its Subsidiaries, if any, Subsidiaries as of at the end of such fiscal year year, and the related consolidated statements of income and membersor operations, shareholders’ equity and of cash flows of the Company for such fiscal year, setting forth in each case in comparative form the corresponding figures for the preceding fiscal year, all prepared in accordance with generally accepted accounting principles consistently applied (“GAAP”), all such consolidated statements to be duly certified by such independent public accountants of recognized national standing approved by the Board to prepare such reports;
(b) As soon as available and in any event within forty-five (45) days after the end of each of the first three quarters of each fiscal year of the Company, an unaudited balance sheet of the Company and its Subsidiaries, if any, as of the end of such quarter and the related unaudited statements of income and members’ equity and of cash flows of the Company for the period commencing at the end of the previous fiscal year and ending with the end of such quarter, setting forth in each case in comparative form the corresponding figures for the corresponding period of the preceding fiscal year and the budget for such current year, all in reasonable detail and prepared in accordance with GAAP GAAP, audited and accompanied by a report and opinion of an independent certified public accountant of nationally recognized standing reasonably acceptable to the Administrative Agent, which report and opinion (i) shall be prepared in accordance with generally accepted auditing standards, (ii) shall not be subject to any “going concern” or like qualification or exception or any qualification or exception as to the scope of such audit, and (iii) shall include in the footnotes thereto information regarding any Default that has occurred and is continuing, including the nature and status of such Default, that such independent certified public accountants obtained knowledge of during the course of their examination; and
(b) as soon as available, but in any event within 60 days after the end of each of the first three fiscal quarters of each fiscal year of the Borrower (commencing with the fiscal quarter ending September 30, 2007), a consolidated balance sheet of the Borrower and its Subsidiaries as at the end of such fiscal quarter, and the related consolidated statements of income or operations, shareholders’ equity and cash flows for such fiscal quarter and for the portion of the Borrower’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 and the corresponding portion of the previous fiscal year, all in reasonable detail, certified by the chief executive officer, chief financial officer, treasurer or controller of the Borrower as fairly presenting the financial condition, results of operations, shareholders’ equity and cash flows of the Borrower and its Subsidiaries in accordance with GAAP, subject only to normal year-end audit adjustments and not including all footnotes thereto that may be required in accordance with GAAP);the absence of footnotes.
(c) Upon request (but not more frequently than the delivery of the financial statements described in Sections 7.2(a) and 7.2(b)), a statement showing the number of Units of each class and series of membership interests (including Profits Interests) and securities convertible into or exercisable for Units outstanding at the end of the applicable period, the Junior Units issuable upon conversion or exercise of any outstanding securities convertible or exercisable for Junior Units and the exchange ratio or exercise price applicable thereto, and the number of Units not yet issued but reserved for issuance under the Equity Incentive Plan, if any, all in sufficient detail as to permit the Preferred Unit Holders to calculate their respective percentage equity ownership in the Company;
(d) As soon as available and in any event within Within thirty (30) days after the end of each calendar monthwritten request by Administrative Agent, a statement of recognized revenueany other financial information including, bookings and retained earnings on a monthly basiswithout limitation, compared against the corresponding figures from such month from the preceding fiscal year and the budget for such current year; and
(e) Not later than sixty (60) days after December 31 of each yearquarterly financial statements, an annual budget financial statements, cash flow projections and quarterly and monthly operating budgets statements requested by Administrative Agent for the Borrower or any of its Subsidiaries. Except as otherwise agreed to by Administrative Agent, all such fiscal year financial information shall be prepared in a form and accordance with such detail as may be acceptable to a majority of the DirectorsGAAP consistently applied.
Appears in 1 contract
Financial Information. The Company will furnish to provide each Investor the following reports for so long as the Investor is a holder of a minimum of 250,000 Registrable Securities or an equivalent amount of Conversion Stock or of an equivalent combination of Shares and Conversion Stock (as adjusted for stock splits, stock dividends, reorganizations, recapitalizations and other similar transactions) or at least 5% of the Company's securities (on a fully diluted basis) (a "Major Holder the information set forth in Investor"), including for purposes of this Section 7.2; provided, that the Company shall not be required to furnish 4 any such information Shares which have been transferred to a Major Holder if the Board determines in good faith that such Major Holder is a competitor to the Company (provided that in no event shall Kinnevik (or its Affiliates) or Oak (or its Affiliates) be deemed to be a competitor to the Company and that, as constituent partner of the Effective Date, Walgreens (and its Affiliates) is deemed to not be a competitor to the Company):an Investor:
(a) As soon as practicable after the end of each fiscal year of the Companyyear, and in any event within one hundred fifty (150) 90 days thereafter, a copy of the annual audited financial statements for such fiscal year for the Company and its Subsidiaries, if any, including therein consolidated balance sheets of the Company and its Subsidiariessubsidiaries, if any, as of the end of such fiscal year year, and consolidated statements of income and members’ income, stockholders' equity and of cash flows of the Company and its subsidiaries, if any, for such fiscal year, prepared in accordance with generally accepted accounting principles on a basis consistent with prior years and setting forth in each case in comparative form the corresponding figures for the preceding previous fiscal year, all in reasonable detail and audited by an independent public accountants of national standing selected by the Company and reasonably acceptable to the Investors.
(b) As soon as practicable after the end of each quarter, and in any event within 20 days thereafter, a consolidated balance sheet of the Company and its subsidiaries, if any, as of the end of each such quarter, consolidated statements of income, consolidated statements of changes in financial condition, and a consolidated statement of cash flow of the Company and its subsidiaries for such period and for the current fiscal year to date, and setting forth in each case in comparative form the figures for corresponding periods in the previous fiscal year, and setting forth in comparative form the budgeted figures for such period and for the current fiscal year then reported, prepared in accordance with generally accepted accounting principles (other than for accompanying notes), subject to changes resulting from year-end audit adjustments, all in reasonable detail and certified by the principal financial or accounting officer of the Company as having been prepared in compliance with this paragraph.
(c) At least thirty (30) days prior to the beginning of each fiscal year an annual budget and operating plans for such fiscal year (and as soon as available, any subsequent revisions thereto); and
(d) As soon as practicable after the end of each month, and in any event within twenty (20) days thereafter, a consolidated balance sheet of the Company as of the end of each such month, and a consolidated statement of income and a consolidated statement of cash flows of the Company for such month and for the current fiscal year to date, including a comparison to plan figures for such period, prepared in accordance with generally accepted accounting principles consistently applied (“GAAP”)applied, all such consolidated statements to be duly certified by such independent public accountants of recognized national standing approved by the Board to prepare such reports;
(b) As soon as available and in any event within forty-five (45) days after the end of each of the first three quarters of each fiscal year of the Company, an unaudited balance sheet of the Company and its Subsidiaries, if any, as of the end of such quarter and the related unaudited statements of income and members’ equity and of cash flows of the Company for the period commencing at the end of the previous fiscal year and ending with the exception that no notes need be attached to such statements and year-end of such quarter, setting forth in each case in comparative form the corresponding figures for the corresponding period of the preceding fiscal year and the budget for such current yearaudit adjustments need not have been made, all in reasonable detail and prepared in accordance with GAAP (subject to year-end audit adjustments and not including all footnotes thereto that may be required in accordance with GAAP);certified by the Company's chief financial officer.
(ce) Upon request Promptly upon receipt thereof (but not more frequently than the delivery of the financial statements described in Sections 7.2(a) and 7.2(b)), a statement showing the number of Units of each class and series of membership interests (including Profits Interests) and securities convertible into or exercisable for Units outstanding at the end of the applicable period, the Junior Units issuable upon conversion or exercise of any outstanding securities convertible or exercisable for Junior Units and the exchange ratio or exercise price applicable thereto, and the number of Units not yet issued but reserved for issuance under the Equity Incentive Plan, if any, all in sufficient detail as to permit the Preferred Unit Holders to calculate their respective percentage equity ownership in the Company;
(d) As soon as available and in any event within thirty (30) five business days after thereafter), the end Company shall deliver to each Major Investor holding copies of each calendar monthall management letters and reports submitted to the Company by independent certified public accountants in connection with any annual, a statement of recognized revenue, bookings and retained earnings on a monthly basis, compared against the corresponding figures from such month from the preceding fiscal year and the budget for such current year; and
(e) Not later than sixty (60) days after December 31 of each year, an annual budget and quarterly and monthly operating budgets for such fiscal year in a form and with such detail as may be acceptable to a majority interim or special audit of the DirectorsCompany made by such accountants.
Appears in 1 contract
Financial Information. The Company will furnish Corporation undertakes toward the Shareholders to each Major Holder the information set forth in this Section 7.2; provided, that the Company shall not be required to furnish such information to a Major Holder if the Board determines in good faith that such Major Holder is a competitor remit to the Company latter the following documents:
15.1.1 within ninety (provided that in no event shall Kinnevik (or its Affiliates90) or Oak (or its Affiliates) be deemed to be a competitor to the Company and that, as of the Effective Date, Walgreens (and its Affiliates) is deemed to not be a competitor to the Company):
(a) As soon as practicable days after the end of each fiscal year of the Company, and in any event within one hundred fifty (150) days thereafteryear, a copy of the annual audited financial statements for such fiscal year for the Company and its Subsidiaries, if any, including therein balance sheets sheet of the Company and its Subsidiaries, if any, Corporation as of at the end of such fiscal year and year, together with statements of income earnings, shareholders' equity, statement of changes in financial position and members’ equity and of cash flows flow of the Company Corporation for such fiscal year, setting forth in each case in comparative form the corresponding figures for the preceding fiscal year, all in reasonable detail and duly certified by the Auditors. These financial statements shall be prepared in accordance with Canadian generally accepted accounting principles consistently applied (“GAAP”), all such consolidated statements to be duly certified by such independent public accountants of recognized national standing approved by the Board to prepare such reportson a consistent basis;
15.1.2 within twenty (b) As soon as available and in any event within forty-five (4520) days after the end of each of the first three (3) fiscal quarters of during each fiscal year of the Companyyear, an unaudited a balance sheet of the Company and its Subsidiaries, if any, Corporation as of the end of such fiscal quarter and the related unaudited statements of income earnings, shareholders' equity, statement of changes in financial position and members’ equity cash flow for such quarter and of cash flows of the Company for the period commencing at from the end beginning of the previous then current fiscal year and ending with to the end of such quarter, setting forth in each case in comparative form the corresponding figures for the corresponding period of the preceding fiscal year and the budget for such current year, all in reasonable detail and prepared in accordance with GAAP (subject detail. The financial statements delivered pursuant to year-end audit adjustments and this subsection need not including all footnotes thereto that may be required in accordance with GAAP)audited;
15.1.3 within the twenty (c20) Upon request (but not more frequently than the delivery of the financial statements described in Sections 7.2(a) and 7.2(b)), a statement showing the number of Units of each class and series of membership interests (including Profits Interests) and securities convertible into or exercisable for Units outstanding at days following the end of each month, complete unaudited monthly financial statements, including the applicable balance sheet, the income statement and the statement of changes in financial position as well as a comparison with the budgets established for the same period, the Junior Units issuable upon conversion or exercise containing a detailed explanation of any outstanding securities convertible or exercisable for Junior Units and the exchange ratio or exercise price applicable thereto, and the number of Units not yet issued but reserved for issuance under the Equity Incentive Plan, if any, all in sufficient detail as to permit the Preferred Unit Holders to calculate their respective percentage equity ownership in the Companyvariations;
(d) As soon as available and in any event within 15.1.4 at least thirty (30) days after prior to the commencement of a fiscal year, an annual operating budget, pro forma cash flow and pro forma income statement for the Corporation;
15.1.5 promptly following the receipt thereof, any written report, "management letter" and any other communication submitted to the Corporation by its independent chartered accountants relating to the business, prospects or financial condition of the Corporation; and
15.1.6 within ninety (90) days of the end of each calendar monthfiscal year of the Corporation, a statement of recognized revenue, bookings report prepared by the Auditors describing all transactions between the Corporation and retained earnings on a monthly basis, compared against Persons not dealing at Arm's Length with the corresponding figures from such month from Corporation during the preceding fiscal year and the budget for such current year; and
(e) Not later than sixty (60) days after December 31 of each year, an annual budget and quarterly and monthly operating budgets for such fiscal year in a form and with such detail as may be acceptable to a majority of the Directors.
Appears in 1 contract