Common use of Financial Statements and Budget Clause in Contracts

Financial Statements and Budget. (a) Deliver to the Administrative Agent for prompt further distribution to each Lender, within 90 days after the end of each fiscal year (or 120 days for the first fiscal year ending after the Closing Date), a consolidated balance sheet of Borrower and its Subsidiaries as at the end of such fiscal year, and the related consolidated statements of income or operations, stockholders’ equity and cash flows for such fiscal year, setting forth in each case in comparative form the figures for the previous fiscal year, all in reasonable detail and prepared in accordance with GAAP, audited and accompanied by a report and opinion of BDO USA, LLP, or any other independent registered public accounting firm of nationally recognized standing, which report and opinion shall be prepared in accordance with generally accepted auditing standards and 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; (b) Deliver to the Administrative Agent for prompt further distribution to each Lender, within 45 days after the end of each of the first three fiscal quarters of each fiscal year of the Borrower (or 60 days for the first three fiscal quarters ending after the Closing Date), a consolidated balance sheet of Borrower and its Subsidiaries as at the end of such fiscal quarter and the related consolidated statements of income or operations for such fiscal quarter and the portion of the fiscal year then ended, setting forth in comparative form the figures for the corresponding fiscal quarter of the previous fiscal year and the corresponding portion of the previous fiscal year, and statements of stockholders’ equity for the current fiscal quarter and consolidated statement of cash flows for the portion of the fiscal year then ended, setting forth in each case in comparative form the figures for the corresponding portion of the previous fiscal year, all in reasonable detail and certified by a Responsible Officer of the Borrower as fairly presenting in all material respects the financial condition, results of operations, stockholders’ equity and cash flows of the Borrower and its Subsidiaries in accordance with GAAP, subject only to normal year-end audit adjustments and the absence of footnotes; and (c) As soon as available, and in any event within fifteen (15) days prior to (and no later than) the commencement of any Fiscal Year, an annual budget for the Borrower and its Subsidiaries for such Fiscal Year, prepared on a quarterly basis, including a reasonable estimate of the management fees and expenses expected to be incurred during such period. Each such annual budget for the Borrower and its Subsidiaries shall include, for the following year, estimated income and cash flow, projected usage of the Revolving Credit Commitments, and an explanation of the assumptions on which such forecasts are based. The annual budget shall be accompanied by a certificate of the Loan Parties certifying that such annual budget is based upon the Borrower’s good faith reasonable estimates. Notwithstanding the foregoing, the obligations in paragraphs (a) and (b) of this Section 6.01 may be satisfied with respect to financial information of Borrower and the Subsidiaries by furnishing (A) the applicable financial statements of Borrower or (B) Borrower’s Form 10-K or 10-Q, as applicable, filed with the SEC within the time periods provided above; provided that, to the extent such information is in lieu of information required to be provided under Section 6.01(a), such materials are accompanied by a report and opinion of BDO USA, LLP, or any other independent registered public accounting firm of nationally recognized standing, which report and opinion shall be prepared in accordance with generally accepted auditing standards and 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. Documents required to be delivered pursuant to Section 6.01 and Sections 6.02(b) and (c) may be delivered electronically and if so delivered, shall be deemed to have been delivered on the date (i) on which the Borrower posts such documents, or provides a link thereto on the website on the Internet at the Borrower’s website address listed on Schedule 10.02; or (ii) on which such documents are posted on the Borrower’s behalf on IntraLinks/IntraAgency or another relevant website, if any, to which each Lender and the Administrative Agent have access (whether a commercial, third-party website or whether sponsored by the Administrative Agent); provided that: (i) upon written request by the Administrative Agent, the Borrower shall deliver paper copies of such documents to the Administrative Agent for further distribution to each Lender until a written request to cease delivering paper copies is given by the Administrative Agent; and (ii) the Borrower shall notify (which may be by facsimile or electronic mail) the Administrative Agent of the posting of any such documents and, in the case of documents required to be delivered pursuant to Section 6.01, provide to the Administrative Agent by electronic mail electronic versions (i.e., soft copies) of such documents. Notwithstanding anything contained herein, in every instance the Borrower shall be required to provide paper copies of the Compliance Certificates required by Section 6.02(a) to the Administrative Agent; provided, however, that if such Compliance Certificate is first delivered by electronic means, the date of such delivery by electronic means shall constitute the date of delivery for purposes of compliance with Section 6.02(a). Each Lender shall be solely responsible for timely accessing posted documents or requesting delivery of paper copies of such documents from the Administrative Agent and maintaining its copies of such documents.

Financial Statements and Budget. The Company shall deliver to each Purchaser: (a) Deliver to the Administrative Agent for prompt further distribution to each Lender, within 90 120 days after the end of each fiscal year (or 120 days for of the first fiscal year ending after the Closing Date)Company, a consolidated an audited balance sheet of Borrower and its Subsidiaries the Company as at the end of such fiscal year, year and the related consolidated audited statements of income or operations, stockholders’ equity and of cash flows of the Company for such fiscal year, setting forth in each case in comparative form certified by certified public accountants of established regional or national reputation selected by the figures for the previous fiscal yearCompany, all in reasonable detail and prepared in accordance with GAAP, audited and accompanied by a report and opinion of BDO USA, LLP, or any other independent registered public accounting firm of nationally recognized standing, which report and opinion shall be prepared in accordance with generally accepted auditing standards and shall not be subject to any “going concern” or like qualification or exception or any qualification or exception as to the scope of such auditaccounting principles consistently applied; (b) Deliver to the Administrative Agent for prompt further distribution to each Lender, within 45 30 days after the end of each of the first three fiscal quarters of each fiscal year the Company and within 60 days after the end of the Borrower (or 60 days for fourth fiscal quarter of the first three fiscal quarters ending after the Closing Date)Company, a consolidated an unaudited balance sheet of Borrower and its Subsidiaries the Company as at the end of such fiscal quarter quarter, and the related consolidated unaudited statements of income or operations and of cash flows of the Company for such fiscal quarter and for the portion current fiscal year to the end of such fiscal quarter; (c) within 30 days after the end of each month (other than the last month of any fiscal quarter), an unaudited balance sheet of the Company as at the end of such month and unaudited statements of income and of cash flows of the Company for such month and for the current fiscal year then endedto the end of such month, setting forth in comparative form the figures Company’s projected financial statements for the corresponding periods for the current fiscal year; (d) at least 30 days prior to the commencement of each new fiscal year, a budget (the “Budget”) approved by the Board of Directors of the Company for such fiscal year; provided that any budget provided to Celgene may be revised to exclude any information that the Company reasonably believes would (i) identify parties to existing business transactions or business transactions under negotiation (provided that the budget shall retain information sufficient for Celgene to understand the impact of the budget on the Company’s financial condition) or (ii) reveal sensitive or strategic information related to a potential or existing conflict of interest between Celgene and the Company with respect to the Collaboration Agreement; and (e) promptly following the end of each fiscal quarter of the previous fiscal year and the corresponding portion Company, an updated capitalization table of the previous fiscal year, and statements of stockholders’ equity for Company certified by the current fiscal quarter and consolidated statement of cash flows for the portion Treasurer of the fiscal year then endedCompany. Upon the request of any Purchaser, setting forth the Company will use commercially reasonable efforts to advise such Purchaser if the Company believes there may be material non-public information about any other company that has any class of its equity securities traded publicly in each case in comparative form the figures for the corresponding portion any part of the previous fiscal year, all world in reasonable detail and certified by a Responsible Officer any of the Borrower as fairly presenting in all material respects the financial condition, results of operations, stockholders’ equity and cash flows of the Borrower and its Subsidiaries in accordance with GAAP, subject only materials provided to normal year-end audit adjustments and the absence of footnotes; and (c) As soon as available, and in any event within fifteen (15) days prior to (and no later than) the commencement of any Fiscal Year, an annual budget for the Borrower and its Subsidiaries for such Fiscal Year, prepared on a quarterly basis, including a reasonable estimate of the management fees and expenses expected to be incurred during such period. Each such annual budget for the Borrower and its Subsidiaries shall include, for the following year, estimated income and cash flow, projected usage of the Revolving Credit Commitments, and an explanation of the assumptions on which such forecasts are based. The annual budget shall be accompanied by a certificate of the Loan Parties certifying that such annual budget is based upon the Borrower’s good faith reasonable estimates. Notwithstanding the foregoing, the obligations in paragraphs (a) and (b) of Purchaser under this Section 6.01 may be satisfied with respect to financial information of Borrower and the Subsidiaries by furnishing (A) the applicable financial statements of Borrower or (B) Borrower’s Form 10-K or 10-Q, as applicable, filed with the SEC within the time periods provided above; provided that, to the extent such information is in lieu of information required to be provided under Section 6.01(a), such materials are accompanied by a report and opinion of BDO USA, LLP, or any other independent registered public accounting firm of nationally recognized standing, which report and opinion shall be prepared in accordance with generally accepted auditing standards and 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. Documents required to be delivered pursuant to Section 6.01 and Sections 6.02(b) and (c) may be delivered electronically and if so delivered, shall be deemed to have been delivered on the date (i) on which the Borrower posts such documents, or provides a link thereto on the website on the Internet at the Borrower’s website address listed on Schedule 10.02; or (ii) on which such documents are posted on the Borrower’s behalf on IntraLinks/IntraAgency or another relevant website, if any, to which each Lender and the Administrative Agent have access (whether a commercial, third-party website or whether sponsored by the Administrative Agent); provided that: (i) upon written request by the Administrative Agent, the Borrower shall deliver paper copies of such documents to the Administrative Agent for further distribution to each Lender until a written request to cease delivering paper copies is given by the Administrative Agent; and (ii) the Borrower shall notify (which may be by facsimile or electronic mail) the Administrative Agent of the posting of any such documents and, in the case of documents required to be delivered pursuant to Section 6.01, provide to the Administrative Agent by electronic mail electronic versions (i.e., soft copies) of such documents. Notwithstanding anything contained herein, in every instance the Borrower shall be required to provide paper copies of the Compliance Certificates required by Section 6.02(a) to the Administrative Agent; provided, however, that if such Compliance Certificate is first delivered by electronic means, the date of such delivery by electronic means shall constitute the date of delivery for purposes of compliance with Section 6.02(a). Each Lender shall be solely responsible for timely accessing posted documents or requesting delivery of paper copies of such documents from the Administrative Agent and maintaining its copies of such documents4.3.