Common use of Five-Year Business Plan Clause in Contracts

Five-Year Business Plan. Concurrently with the preparation of the Annual Business Plan for each Fiscal Year, the President shall cause to be prepared and shall present to the Board a five (5) year rolling business plan (the “Rolling Business Plan”) of which the first year shall be the Annual Business Plan for such Fiscal Year. Each Rolling Business Plan shall contain, inter alia, (a) pro forma financial statements (projected profit and loss, balance sheet, and changes in financial position) for the succeeding five (5) Fiscal Year period, (b) projected expenditures (expense and capital) for the succeeding five (5) Fiscal Year period, (c) financing plans, cash requirements, loan commitments and Capital Contribution commitments for the succeeding five (5) Fiscal Year period, (d) projected distributions for the succeeding five (5) Fiscal Year period, (e) the amount of money to be spent by the Company on research and development and Intellectual Property development activities for each Fiscal Year in the succeeding five (5) Fiscal Year period, and (f) such other relevant reports and topics as are set forth in the initial Rolling Business Plan (as may be modified, amended or supplemented by the Members in accordance with this Agreement, the “Initial Rolling Business Plan”). The Members shall be obligated to fund (i) (A) the loan commitments scheduled to occur during the first thirty-six (36) months in the Initial Rolling Business Plan and (B) the loan commitments scheduled to occur during the first three (3) Fiscal Years in each other Rolling Business Plan approved by Majority Consent of the Board (each such loan, a “Three-Year Business Plan Loan Commitment”) and (ii) (A) the Capital Contribution commitments scheduled to occur during the first thirty-six (36) months in the Initial Rolling Business Plan and (B) the Capital Contribution commitments scheduled to occur during the first three (3) Fiscal Years in each other Rolling Business Plan approved by Majority Consent of the Board (each such Capital Contribution, a “Three-Year Business Plan Capital Contribution Commitment”), in the case of each of clauses (i) and (ii), in proportion to their respective Percentage Interests at the time such loan or Capital Contribution is required to be funded by such Rolling Business Plan, except to the extent the Board determines by Majority Consent such Three-Year Business Plan Loan Commitments or Three-Year Business Plan Capital Contribution Commitments shall be funded in a different proportion. Other than with regard to the Initial Rolling Business Plan adopted by the Parties concurrent with the execution of this Agreement, each Rolling Business Plan shall be subject to the approval of the Board upon Majority Consent. If the Board fails to adopt a new Rolling Business Plan upon Majority Consent prior to the first day of the five (5) Fiscal Year period to be covered by such Rolling Business Plan, the Company shall continue operating under the Rolling Business Plan most recently approved by the Board upon Majority Consent (i.e., the existing Rolling Business Plan shall continue as a four (4) year rolling business plan, with the first year being deemed (but not for purposes of determining whether a Company Deadlock exists with respect to Section 5.13.1 or for purposes of Section 21.2.5(a)) to be the Annual Business Plan, and so forth for subsequent years), it being understood that only the funding amounts for the first thirty-six (36) months of a Rolling Business Plan will be binding on the Members. Any approved Rolling Business Plan shall not be changed, except upon Majority Consent of the Board. The Parties have heretofore agreed to the Initial Rolling Business Plan (covering the period from the Effective Date until October 31, 2013). The Parties agree and acknowledge that although the Initial Rolling Business Plan covers both the remaining portion of the 2009 Fiscal Year and the succeeding four (4) Fiscal Year period ending on October 31, 2013, all subsequent Rolling Business Plans shall cover five (5) full Fiscal Year periods. For the avoidance of doubt, the Members shall be obligated to fund the loan commitments and the Capital Contribution commitments set forth in the Initial Rolling Business Plan for the period from the Effective Date through the date that is thirty-six (36) months after the Effective Date.

Five-Year Business Plan. Concurrently with the preparation of the Annual Business Plan for each Fiscal Year, the President shall cause to be prepared and shall present to the Board a five (5) year rolling business plan (the “Rolling Business Plan”) of which the first year shall be the Annual Business Plan for such Fiscal Year. Each Rolling Business Plan shall contain, inter alia, (a) pro forma financial statements (projected profit and loss, balance sheet, and changes in financial position) for the succeeding five (5) Fiscal Year period, (b) projected expenditures (expense and capital) for the succeeding five (5) Fiscal Year period, (c) financing plans, cash requirements, loan commitments and Capital Contribution commitments for the succeeding five (5) Fiscal Year period, (d) projected distributions for the succeeding five (5) Fiscal Year period, (e) the amount of money to be spent by the Company on research and development and Intellectual Property development activities for each Fiscal Year in the succeeding five (5) Fiscal Year period, and (f) such other relevant reports and topics as are set forth in the initial Rolling Business Plan (as may be modified, amended or supplemented by the Members in accordance with this Agreement, the “Initial Rolling Business Plan”). The Members shall be obligated to fund (i) (A) the loan commitments scheduled to occur during the first thirty-six (36) months in the Initial Rolling Business Plan and (B) the loan commitments scheduled to occur during the first three (3) Fiscal Years in each other Rolling Business Plan approved by Majority Consent of the Board (each such loan, a “Three-Year Business Plan Loan Commitment”) and (ii) (A) the Capital Contribution commitments scheduled to occur during the first thirty-six (36) months in the Initial Rolling Business Plan and (B) the Capital Contribution commitments scheduled to occur during the first three (3) Fiscal Years in each other Rolling Business Plan approved by Majority Consent of the Board (each such Capital Contribution, a “Three-Year Business Plan Capital Contribution Commitment”), in the case of each of clauses (i) and (ii), in proportion to their respective Percentage Interests at the time such loan or Capital Contribution is required to be funded by such Rolling Business Plan, except to the extent the Board determines by Majority Consent such Three-Year Business Plan Loan Commitments or Three-Year Business Plan Capital Contribution Commitments shall be funded in a different proportion. Other than with regard to the Initial Rolling Business Plan adopted by the Parties concurrent with the execution of this Agreement, each Rolling Business Plan shall be subject to the approval of the Board upon Majority Consent. If the Board fails to adopt a new Rolling Business Plan upon Majority Consent prior to the first day of the five (5) Fiscal Year period to be covered by such Rolling Business Plan, the Company shall continue operating under the Rolling Business Plan most recently approved by the Board upon Majority Consent (i.e., the existing Rolling Business Plan shall continue as a four (4) year rolling business plan, with the first year being deemed (but not for purposes of determining whether a Company Deadlock exists with respect to Section 5.13.1 or for purposes of Section 21.2.5(a)) to be the Annual Business Plan, and so forth for subsequent years), it being understood that only the funding amounts for the first thirty-six (36) months of a Rolling Business Plan will be binding on the Members. Any approved Rolling Business Plan shall not be changed, except upon Majority Consent of the Board. The Parties have heretofore agreed to the Initial Rolling Business Plan (covering the period from the Effective Date until October 31, 2013). The Parties agree and acknowledge that although the Initial Rolling Business Plan covers both the remaining portion of the 2009 Fiscal Year and the succeeding four (4) Fiscal Year period ending on October 31, 2013, all subsequent Rolling Business Plans shall cover five (5) full Fiscal Year periods. For the avoidance of doubt, the Members shall be obligated to fund the loan commitments and the Capital Contribution commitments set forth in the Initial Rolling Business Plan for the period from the Effective Date through the date that is thirty-six (36) months after the Effective Date.