Information Rights. (1) In order to facilitate (i) the Investors’ and their Affiliates’ compliance with legal and regulatory requirements applicable to the beneficial ownership by the Investors and their Affiliates of equity securities of Real, and (ii) the provision by the Investors and their Affiliates’ of financial and other strategic advice to the business and affairs of Real and its Subsidiaries and the taking of such other actions for the benefit of Real and its Subsidiaries in the “necessary course of business” in accordance with the interpretive guidance set out in NP 51-201, for so long as the Investors or their Affiliates hold any of the Purchased Securities, Real agrees promptly to provide the Investors with the following: (a) within 120 days after the end of each fiscal year of Real, (i) an audited, consolidated balance sheet of Real and its Subsidiaries as of the end of such fiscal year and (ii) audited, consolidated statements of income, comprehensive income, cash flows and changes in shareholders’ equity of Real and its Subsidiaries for such fiscal year, all such financial statements audited and certified by independent public accountants of recognized standing; provided that this requirement shall be deemed to have been satisfied if on or prior to such date Real files its audited annual financial statements with the applicable Canadian Securities Commissions pursuant to National Instrument 51-102 – Continuous Disclosure Obligations; (b) within 45 days after the end of each of the first three quarters of each fiscal year of Real, (i) an unaudited, consolidated balance sheet of Real and its Subsidiaries as of the end of such fiscal quarter and (ii) consolidated statements of income, comprehensive income and cash flows of Real and its Subsidiaries for such fiscal quarter, all prepared in accordance with IFRS; provided that this requirement shall be deemed to have been satisfied if on or prior to such date Real files its interim financial report with the applicable Canadian Securities Commissions pursuant to National Instrument 51-102 – Continuous Disclosure Obligations; and (c) (i) access to and consultation with appropriate officers, directors and management personnel of Real and its Subsidiaries at such times as reasonably requested by the Investors, in such manner as not to interfere unreasonably with the conduct of business of Real and its Subsidiaries, for consultation with the Investors with respect to matters relating to the business and affairs of the Issuer, and (ii) in connection with same, Real will furnish Investors with copies of any business plans, monthly financial reports, quarterly management reports, formal presentations to the Board, material documents provided to lenders of Real and such other financial and operating data and other information pertaining to Real; provided that in the case of (ii), such reports and information shall only be provided to the Investors to the extent they have been prepared by Real and made available to the Board and the lenders of Real, as applicable. (2) Promptly after the determination of Real’s annual budget for each calendar year, Real shall promptly notify the Investors in writing of the aggregate annual budgeted recurring capital expenditure of Real and its Subsidiaries. (3) Notwithstanding the foregoing, Real shall not be obligated to provide such access or materials set forth in this Section 4.6 if Real, acting in good faith, determines, in its reasonable judgment based on the advice of outside counsel of international standing, that doing so would (x) materially violate applicable securities Laws, (y) jeopardize the protection of an attorney-client privilege or attorney work product protection that could reasonably relate to the information or documents in question, or (z) expose Real to liability for disclosure of personal information; provided that, in the case of each of clauses (x) through (z), Real shall immediately disclose as much information as possible, and provide the Investors with redacted, substitute or aggregated and/or anonymized documents or information in the most permissive manner that would not result in, as applicable, Real violating the applicable Law in question, losing the ability to assert attorney-client privilege or attorney work product protection or exposing Real to the aforementioned liability. (4) Each party hereto acknowledges and agrees that the Investor Nominee may share any information concerning Real and its Subsidiaries received by him or her from or on behalf of Real or its designated representatives with the Investors and their Representatives (other than any Persons that are Representatives solely by virtue of being actual or potential sources of debt or equity financing) (subject to the obligation of the Investors and their Representatives to maintain the confidentiality of Confidential Information in accordance with Section 4.5). (5) Real and the Issuer shall, as the Investors may reasonably request from time to time, provide to the Investors, pursuant to a management rights letter, such management rights as may be necessary for the Investors’ investment in Real and the Issuer to continue to qualify as a “venture capital investment” for purposes of 29 C.F.R. § 2510.3-101.
Appears in 2 contracts
Samples: Investor Rights Agreement (Real Brokerage Inc), Securities Subscription Agreement (Real Brokerage Inc)
Information Rights. (1a) In order to facilitate The Company will furnish each of the ECP Funds and Dynegy, so long as each such Principal Unitholder holds any Units, as soon as available and in any event:
(i) within the Investors’ and their Affiliates’ compliance with legal and regulatory requirements applicable to the beneficial ownership by the Investors and their Affiliates later of equity securities of Real, and (iii) the provision by the Investors and their Affiliates’ of financial and other strategic advice to the business and affairs of Real and its Subsidiaries and the taking of such other actions for the benefit of Real and its Subsidiaries in the “necessary course of business” in accordance with the interpretive guidance set out in NP 51-201, for so long as the Investors or their Affiliates hold any of the Purchased Securities, Real agrees promptly to provide the Investors with the following:
ninety (a90) within 120 days after the end of each fiscal year of Realthe Company, and (iii) an auditedthe period of time provided in the Dynegy Parent Credit Agreement with respect to Dynegy Parent’s similar obligation therein (so long as the Dynegy Parent Credit Agreement is in effect), the consolidated balance sheet of Real the Company and its Subsidiaries as of at the end of each such fiscal year and (ii) audited, the consolidated statements of income, comprehensive income, cash flows and changes in shareholdersunitholders’ equity for such year of Real the Company and its Subsidiaries Subsidiaries, setting forth in each case in comparative form the figures for such the next preceding fiscal year, all such financial statements audited and accompanied by the report of independent certified by independent public accountants of recognized national standing; provided that this requirement shall be deemed , to the effect that, except as set forth therein, such consolidated financial statements have been satisfied if prepared in accordance with GAAP applied on or a basis consistent with prior to such date Real files years and fairly present in all material respects the financial condition of the Company and its audited annual financial statements with Subsidiaries at the applicable Canadian Securities Commissions pursuant to National Instrument 51-102 – Continuous Disclosure Obligationsdates thereof and the results of their operations and changes in their cash flows and unitholders’ equity for the periods covered thereby;
(bii) within 45 the later of (i) forty-five (45) days after the end of each of the first three quarters of quarterly accounting period in each fiscal year (other than the last fiscal quarter of Realthe fiscal year), and (iii) an unauditedthe period of time provided in the Dynegy Parent Credit Agreement with respect to Dynegy Parent’s similar obligation therein (so long as the Dynegy Parent Credit Agreement is in effect), unaudited consolidated balance sheet sheets of Real the Company and its Subsidiaries as of at the end of each such fiscal quarter and (ii) for the current fiscal year to date and unaudited consolidated statements of income, comprehensive income and cash flows of Real and its Subsidiaries changes in unitholders’ equity for such fiscal quarter and for the current fiscal year to date, in each case setting forth in comparative form the figures for the corresponding periods of the previous fiscal quarter, all in reasonable detail and all prepared in accordance with IFRS; provided that this requirement shall be deemed to have been satisfied if GAAP applied on or a basis consistent with prior to such date Real files years and fairly present in all material respects the financial condition of the Company and its interim financial report with Subsidiaries at the applicable Canadian Securities Commissions pursuant to National Instrument 51-102 – Continuous Disclosure Obligationsdates thereof and the results of their operations and changes in their cash flows and unitholders’ equity for the periods covered thereby and an update of material developments affecting the business and operations of the Company and its Subsidiaries; and
(iii) within forty five (45) days after the end of each monthly accounting period in each fiscal quarter (other than the last month of the fiscal quarter) the Monthly Management Plan for the applicable month (beginning with the first full calendar month during which this Agreement is executed).
(b) To the extent permitted by, and not inconsistent with, applicable Law, and without limiting the provisions of Section 7.03, regularly reported financial information and such other information as each of the ECP Funds and Dynegy, so long as such Principal Unitholder holds at least five percent (5%) of the issued and outstanding Units, may reasonably request or any other information that is delivered by the Company or the Board to any of the Principal Unitholders shall be made available to such Principal Unitholder.
(c) Without limiting the provisions of Section 7.03, upon the request of any of the ECP Funds or Dynegy, so long as such Principal Unitholder holds at least five percent (5%) of the issued and outstanding Units, such Principal Unitholder and any Representatives of such Principal Unitholder shall have (i) reasonable access (at reasonable times and upon reasonable notice) to all executive officers and consultation with appropriate officers, directors and management personnel accountants of Real the Company and its Subsidiaries at such times as reasonably requested by the Investors, in such manner as not to interfere unreasonably with the conduct of business of Real and its Subsidiaries, for consultation with the Investors with respect to matters relating to the business and affairs of the Issuer, and (ii) in connection with samereasonable access (at reasonable times and upon reasonable notice) to all premises, Real will furnish Investors with copies of any business plansproperties, monthly financial reportsbooks, quarterly management reportsrecords (including tax records), formal presentations to the Boardcontracts, material documents provided to lenders of Real and such other financial and operating data and other information and documents pertaining to Real; provided that in the case of (ii), such reports and information shall only be provided to the Investors to the extent they have been prepared by Real and made available to the Board and the lenders of Real, as applicable.
(2) Promptly after the determination of Real’s annual budget for each calendar year, Real shall promptly notify the Investors in writing of the aggregate annual budgeted recurring capital expenditure of Real and its Subsidiaries.
(3) Notwithstanding the foregoing, Real shall not be obligated to provide such access or materials set forth in this Section 4.6 if Real, acting in good faith, determines, in its reasonable judgment based on the advice of outside counsel of international standing, that doing so would (x) materially violate applicable securities Laws, (y) jeopardize the protection of an attorney-client privilege or attorney work product protection that could reasonably relate to the information or documents in question, or (z) expose Real to liability for disclosure of personal information; provided that, in the case of each of clauses (x) through (z), Real shall immediately disclose as much information as possible, and provide the Investors with redacted, substitute or aggregated and/or anonymized documents or information in the most permissive manner that would not result in, as applicable, Real violating the applicable Law in question, losing the ability to assert attorney-client privilege or attorney work product protection or exposing Real to the aforementioned liability.
(4) Each party hereto acknowledges and agrees that the Investor Nominee may share any information concerning Real Company and its Subsidiaries received by him or her from or on behalf and shall be entitled to make copies, at such Unitholder’s sole expense, of Real such books, records, contracts, data, information and documents as such Principal Unitholder or its designated representatives with the Investors and their Representatives (other than any Persons that are Representatives solely by virtue of being actual or potential sources of debt or equity financing) (subject to the obligation of the Investors and their Representatives to maintain the confidentiality of Confidential Information in accordance with Section 4.5).
(5) Real and the Issuer shall, as the Investors may reasonably request from time to time, provide to the Investors, pursuant to a management rights letter, such management rights as may be necessary for the Investors’ investment in Real and the Issuer to continue to qualify as a “venture capital investment” for purposes of 29 C.F.R. § 2510.3-101request.
Appears in 2 contracts
Samples: Interim Sponsors Agreement (Dynegy Inc.), Interim Sponsors Agreement (Dynegy Inc.)
Information Rights. (1a) In order GIC Investor and Enagas Investor, as applicable, shall be provided the following information regarding the Aggregator Group, the TGE Group, TGE GP, Secondary Acquiror and any Investor Aggregator on a consolidated and consolidating basis; provided, however, that prior to facilitate the GIC CFIUS Approval Date any such information provided to GIC Investor shall not include Material Non-Public Technical Information:
(i) within ten (10) Business Days after the Investors’ end of each month, unaudited consolidated financial statements of the TGE Group for such month and their Affiliates’ compliance information with legal and regulatory requirements applicable respect to changes in equity of the beneficial ownership by the Investors and their Affiliates of equity securities of RealTGE Group, and which shall be prepared in accordance with GAAP;
(ii) within ten (10) Business Days after the provision by end of each fiscal quarter, unaudited consolidated financial statements of the Investors and their Affiliates’ of financial and other strategic advice to the business and affairs of Real and its Subsidiaries and the taking of such other actions for the benefit of Real and its Subsidiaries in the “necessary course of business” TGE Group, which shall be prepared in accordance with GAAP;
(iii) five (5) days prior to the interpretive guidance set out in NP 51-201end of each fiscal quarter, for so long as the Investors an estimated consolidated profit or their Affiliates hold any loss statement of the Purchased SecuritiesTGE Group in accordance with GAAP, Real agrees promptly which statement shall provide details of net profit or loss attributable to provide TGE and net profit or loss attributable to non-controlling interests;
(iv) as soon as practicable after the Investors with delivery of the following:
monthly reports delivered pursuant to Section 3.1(a)(i), sufficient information for (a) the preparation of unaudited consolidated financial statements of Aggregator Group including the contributions to each of the Closing Silo Entities, Secondary Acquiror and any Investor Aggregator and (b) a reconciliation of such monthly reports to IFRS to the extent practicable;
(v) within 120 forty-five (45) days after the end of each fiscal year of Realyear, (i) an audited, audited consolidated balance sheet of Real and its Subsidiaries as financial statements of the end of such fiscal year and (ii) audited, consolidated statements of income, comprehensive income, cash flows and changes in shareholders’ equity of Real and its Subsidiaries TGE Group for such fiscal year, all such financial statements which shall be prepared in accordance with GAAP and shall be audited and by a firm of independent certified by independent public accountants of recognized international standing; provided that this requirement shall be deemed , and a reconciliation of such audited consolidated financial statements to have been satisfied if IFRS to the extent practicable;
(vi) on or prior to such date Real files its audited November 7th of each fiscal year, a proposed budget (showing profit and loss and cash flow) for the TGE Group, Aggregator Group, the Secondary Acquiror and any Investor Aggregator with unconsolidated information for each Closing Silo Entity, Secondary Acquiror and any Investor Aggregator for the subsequent fiscal year that includes information on a monthly basis; and during January of the following fiscal year an approved budget prepared on the same basis and sufficient information to prepare a budget reconciliation to IFRS to the extent practicable;
(vii) within five (5) days prior to the end of each fiscal quarter (other than the fiscal quarter ending December 31) for the TGE Group, Aggregator Group, the Secondary Acquiror and any Investor Aggregator with unconsolidated information for each Closing Silo Entity, Secondary Acquiror and any Investor Aggregator, (a) an annual forecast prepared on a monthly basis and sufficient information to prepare a forecast reconciliation to IFRS to the extent practicable; and
(viii) all tax, operating and financial statements reports prepared and presented to the Board, including copies of all budgets, management projections, quarterly updates and all amendments thereto. Enagas Investor shall bear all out of pocket costs and expenses associated with the applicable Canadian Securities Commissions pursuant any IFRS evaluation, implementation and reconciliation required to National Instrument 51-102 – Continuous Disclosure Obligations;satisfy Enagas Investor’s rights under this Article III.
(b) As soon as reasonably practicable after the Effective Date, Aggregator GP will perform or will cause to be performed an analysis of the accounting system of the Aggregator Group, the TGE Group, TGE GP, Secondary Acquiror or any Investor Aggregator in order to prepare an IFRS reporting template of Aggregator Group that will be used to deliver the information required to be delivered pursuant to Section 3.1(a).
(c) Following the Effective Date, GP Acquiror shall cause the TGE Group to prepare, maintain, and update on a regular basis (but not less than on a quarterly basis in April, July and October of each fiscal year and in connection with (and prior to) any financings or re-financings of more than $500 million of debt of any member of the TGE Group or any issuance of new Equity Interests of any member of the TGE Group or additional capital contributions) a business plan and financial, operating and tax model which includes no less than five (5) years of corporate projections, and GP Acquiror shall cause the TGE Group to distribute such business plan and model to GIC Investor and Enagas Investor promptly after any update thereof.
(d) Following the Effective Date, GP Acquiror shall use its reasonable best efforts to cause the TGE Group and Aggregator Group to provide the following information to Enagas Investor:
(i) within 45 twelve (12) days following the end of each fiscal quarter, a review/specific audit procedures to be performed by TGE’s auditor regarding the consolidated financial statements of Aggregator Group under IFRS necessary for Enagas Investor to comply with its audit procedures. Enagas Investor shall be responsible for all costs pursuant to the requirements of this Section 3.1(d)(i); and
(ii) in order to allow Enagas Investor and its Affiliates to satisfy any tax-related obligations, upon the reasonable request of Enagas Investor, any information relating to the TGE Group in a timely manner and in the form so requested.
(e) Following the Effective Date, and for so long as Enagas Investor owns at least 10% of the Equity Interests of GP Acquiror on a look-through basis, GP Acquiror shall provide Enagas reasonable advance notice of any public announcement relating to the TGE Group’s performance, earnings, investor guidance or any other material non-public information.
(f) Following the Effective Date, each of ECI Aggregator, Non-ECI Aggregator, Secondary Acquiror or any other aggregator through which such TGE Investor invests (“Investor Aggregator”) shall provide to Enagas Investor and GIC Investor within one hundred and twenty (120) days after the end of each fiscal year, a draft Form 1065, U.S. Return of Partnership Income, together with the draft K-1 delivered pursuant to the ECI Aggregator LPA, the Non-ECI Aggregator LPA, Secondary Acquiror or the governing documents of any other aggregator through which such TGE Investor invests, as the case may be, for the review and reasonable comment of Enagas Investor and GIC Investor. Any such draft K-1 shall include estimates of the information necessary to complete the recipient’s federal, state and local tax filings regarding the income of the respective partnership, including an estimate of state and local apportionment information.
(g) Following the Effective Date, each of Non-ECI Aggregator, Secondary Acquiror and any Investor Aggregator, shall provide to GIC Investor, quarterly capital statements with respect to such entity within forty five (45) days after the end of the first three fiscal quarters of each fiscal year of Real, and within sixty (i60) an unaudited, consolidated balance sheet of Real and its Subsidiaries as of days after the end of such the fourth fiscal quarter (and (ii) consolidated statements of incomeGP Acquiror shall provide the requisite information to Non-ECI Aggregator, comprehensive income and cash flows of Real and its Subsidiaries for such fiscal quarter, all prepared in accordance with IFRS; provided that this requirement shall be deemed to have been satisfied if on Secondary Acquiror or prior to such date Real files its interim financial report with the applicable Canadian Securities Commissions pursuant to National Instrument 51-102 – Continuous Disclosure Obligations; and
(c) (i) access to and consultation with appropriate officers, directors and management personnel of Real and its Subsidiaries at such times as reasonably requested by the Investors, in such manner as not to interfere unreasonably with the conduct of business of Real and its Subsidiaries, for consultation with the Investors with respect to matters relating to the business and affairs of the Issuer, and (ii) in connection with same, Real will furnish Investors with copies of any business plans, monthly financial reports, quarterly management reports, formal presentations to the Board, material documents provided to lenders of Real and such other financial and operating data and other information pertaining aggregator to Real; provided that in the case of (ii), fulfill such reports and information shall only be provided to the Investors to the extent they have been prepared by Real and made available to the Board and the lenders of Real, as applicable.
(2) Promptly after the determination of Real’s annual budget for each calendar year, Real shall promptly notify the Investors in writing of the aggregate annual budgeted recurring capital expenditure of Real and its Subsidiaries.
(3) Notwithstanding the foregoing, Real shall not be obligated to provide such access or materials set forth in this Section 4.6 if Real, acting in good faith, determines, in its reasonable judgment based on the advice of outside counsel of international standing, that doing so would (x) materially violate applicable securities Laws, (y) jeopardize the protection of an attorney-client privilege or attorney work product protection that could reasonably relate to the information or documents in question, or (z) expose Real to liability for disclosure of personal information; provided that, in the case of each of clauses (x) through (z), Real shall immediately disclose as much information as possible, and provide the Investors with redacted, substitute or aggregated and/or anonymized documents or information in the most permissive manner that would not result in, as applicable, Real violating the applicable Law in question, losing the ability to assert attorney-client privilege or attorney work product protection or exposing Real to the aforementioned liability.
(4) Each party hereto acknowledges and agrees that the Investor Nominee may share any information concerning Real and its Subsidiaries received by him or her from or on behalf of Real or its designated representatives with the Investors and their Representatives (other than any Persons that are Representatives solely by virtue of being actual or potential sources of debt or equity financing) (subject to the obligation of the Investors and their Representatives to maintain the confidentiality of Confidential Information in accordance with Section 4.5obligation).
(5h) Real Following the Effective Date, Non-ECI Aggregator and the Issuer shallECI Aggregator, as the Investors may reasonably request from time to time, Secondary Acquiror or Investor Aggregator shall each provide to Enagas Investor, and GP Acquiror shall provide the Investorsrequisite information to each of Non-ECI Aggregator, pursuant to a management rights letterECI Aggregator, such management rights as may be necessary for Secondary Acquiror or Investor Aggregator, within forty (45) days after the Investors’ investment in Real end of the first three fiscal quarters and within (60) days after the Issuer to continue to qualify as a “venture end of the fourth fiscal quarter, Non-ECI Aggregator’s, ECI Aggregator’s, Secondary Acquiror’s or Investor Aggregator quarterly capital investment” for purposes of 29 C.F.R. § 2510.3-101statements.
Appears in 2 contracts
Samples: Equityholders Agreement (GIC Private LTD), Equityholders Agreement (Enagas U.S.A. LLC)
Information Rights. (1) In Following the Closing and so long as the Fall-Away Event has not occurred, in order to facilitate (ix) the Investors’ and their Affiliates’ Investor’s compliance with legal and regulatory requirements applicable to the beneficial ownership by the Investors and their Affiliates Investor of equity securities of Real, the Company and (iiy) the provision by the Investors and their Affiliates’ Investor’s oversight of financial and other strategic advice to the business and affairs of Real and its Subsidiaries and the taking of such other actions for the benefit of Real and its Subsidiaries investment in the “necessary course of business” in accordance with Company, the interpretive guidance set out in NP 51-201, for so long as the Investors or their Affiliates hold any of the Purchased Securities, Real Company agrees promptly to provide the Investors Investor with the following:
(a) within 120 ninety (90) days after the end of each fiscal year of Realthe Company, (i) an audited, consolidated balance sheet of Real the Company and its Subsidiaries as of the end of such fiscal year, (ii) an audited, consolidated income statement of the Company and its Subsidiaries for such fiscal year and (iiiii) an audited, consolidated statements statement of income, comprehensive income, cash flows and changes in shareholders’ equity of Real the Company and its Subsidiaries for such fiscal year, all such financial statements audited and certified by independent public accountants of recognized standing; provided that this requirement shall be deemed to have been satisfied if on or prior to such date Real when the Company files its audited annual financial statements report on Form 10-K for the applicable fiscal year with the applicable Canadian Securities Commissions pursuant to National Instrument 51-102 – Continuous Disclosure Obligationsand Exchange Commission (the “SEC”) (regardless of whether such filing occurs within ninety (90) days after the end of such fiscal year);
(b) within 45 forty-five (45) days after the end of each of the first three (3) quarters of each fiscal year of Realthe Company, (i) an unaudited, consolidated balance sheet of Real the Company and its Subsidiaries as of the end of such fiscal quarter, (ii) an unaudited, consolidated income statement of the Company and its Subsidiaries for such fiscal quarter and (iiiii) an unaudited, consolidated statements statement of income, comprehensive income and cash flows of Real the Company and its Subsidiaries for such fiscal quarter, all prepared in accordance with IFRS; provided that this requirement shall be deemed to have been satisfied if on or prior to such date Real when the Company files its interim financial quarterly report on Form 10-Q for the applicable fiscal quarter with the applicable Canadian Securities Commissions pursuant to National Instrument 51SEC (regardless of whether such filing occurs within forty-102 – Continuous Disclosure Obligationsfive (45) days after the end of such fiscal quarter); and
(c) (i) access reasonable access, to and consultation with appropriate officers, directors and management personnel of Real and its Subsidiaries at such times as the extent reasonably requested by the InvestorsInvestor, to the offices and the properties of the Company and its Subsidiaries, including its and their books and records, and to discuss its and their affairs, finances and accounts with its and their officers, all upon reasonable notice and at such reasonable times and as often as the Investor may reasonably request; provided that any investigation pursuant to this Section 8 shall be conducted in such a manner as not to interfere unreasonably with the conduct of the business of Real the Company and its Subsidiaries, for consultation with the Investors with respect to matters relating to the business and affairs of the Issuer, and (ii) in connection with same, Real will furnish Investors with copies of any business plans, monthly financial reports, quarterly management reports, formal presentations to the Board, material documents provided to lenders of Real and such other financial and operating data and other information pertaining to Real; provided that in the case of (ii), such reports and information shall only be provided to the Investors to the extent they have been prepared by Real and made available to the Board and the lenders of Real, as applicable.
(2) Promptly after the determination of Real’s annual budget for each calendar year, Real shall promptly notify the Investors in writing of the aggregate annual budgeted recurring capital expenditure of Real and its Subsidiaries.
(3) Notwithstanding the foregoing, Real Company shall not be obligated to provide such access or materials set forth in this Section 4.6 if Real, acting in good faith, the Company determines, in its reasonable judgment based on the advice of outside counsel of international standingjudgment, that doing so would reasonably be expected to (xi) materially violate applicable securities LawsLaw or an applicable order, (yii) jeopardize the protection of an attorney-client privilege or privilege, attorney work product protection or other legal privilege (provided, however, that could reasonably relate the Company shall use reasonable efforts to provide alternative, redacted or substitute documents or information in a manner that would not result in the information loss of the ability to assert attorney-client privilege, attorney work product protection or documents in questionother legal privileges), or (ziii) expose Real the Company to liability for disclosure of personal information; provided thatprovided, in further, that the case of each of clauses (x) through (z), Real Parties shall immediately use their commercially reasonable efforts to disclose as much information as possible, and provide the Investors with redacted, substitute or aggregated and/or anonymized documents or such information in the most permissive a manner that would not result inviolate the foregoing. In addition, as applicable, Real violating the applicable Law in question, losing the ability to assert attorney-client privilege or attorney work product protection or exposing Real notwithstanding anything to the aforementioned liability.
(4) Each party hereto acknowledges and agrees that contrary contained herein, neither the Investor Nominee may share Company nor any of its Subsidiaries will be required to provide any information concerning Real or material that relate to, contain or reflect any analyses, studies, notes, memoranda and its Subsidiaries received by him other information related to or her from prepared in connection with any Transaction Document or on behalf of Real the transactions contemplated thereby or its designated representatives any matters relating thereto or any transactions with the Investors and their Representatives (other than any Persons that are Representatives solely by virtue of being actual or potential sources of debt or equity financing) (subject matters relating to the obligation of the Investors and their Representatives to maintain the confidentiality of Confidential Information in accordance with Section 4.5)Investor.
(5) Real and the Issuer shall, as the Investors may reasonably request from time to time, provide to the Investors, pursuant to a management rights letter, such management rights as may be necessary for the Investors’ investment in Real and the Issuer to continue to qualify as a “venture capital investment” for purposes of 29 C.F.R. § 2510.3-101.
Appears in 2 contracts
Samples: Investor Rights Agreement (ADT Inc.), Securities Purchase Agreement (ADT Inc.)
Information Rights. (1) In Following the Initial Closing and so long as the 25% Beneficial Ownership Requirement is satisfied, in order to facilitate (i) the Investors’ and their AffiliatesInvestor Parties’ compliance with legal and regulatory requirements applicable to the beneficial ownership by the Investors Investor Parties and their its Affiliates of equity securities of Real, the Company and (ii) the provision by Investor Representative’s oversight of the Investors and their AffiliatesInvestor Parties’ investment in the Company, the Company agrees to provide each of financial and other strategic advice to the business and affairs of Real and its Subsidiaries Investor Parties and the taking of such other actions for the benefit of Real and its Subsidiaries in the “necessary course of business” in accordance with the interpretive guidance set out in NP 51-201, for so long as the Investors or their Affiliates hold any of the Purchased Securities, Real agrees promptly to provide the Investors Investor Representative with the following:
(a) within 120 ninety (90) days after the end of each fiscal year of Realthe Company, (iA) an audited, consolidated balance sheet of Real the Company and its Subsidiaries as of the end of such fiscal year and year, (iiB) an audited, consolidated statements of incomeincome of the Company and its Subsidiaries for such fiscal year and (C) an audited, comprehensive income, consolidated statements of cash flows and changes in shareholders’ equity of Real the Company and its Subsidiaries for such fiscal year, all such financial statements audited and certified by independent public accountants of recognized standing; provided that this requirement shall be deemed to have been satisfied if on or prior to such date Real the Company files its audited annual financial statements report on Form 10-K for the applicable fiscal year with the applicable Canadian Securities Commissions pursuant to National Instrument 51-102 – Continuous Disclosure ObligationsSEC;
(b) within 45 forty-five (45) days after the end of each of the first three quarters of each fiscal year of Realthe Company, (iA) an unaudited, consolidated balance sheet of Real the Company and its Subsidiaries as of the end of such fiscal quarter, (B) an unaudited, consolidated statements of income of the Company and its Subsidiaries for such fiscal quarter and (iiC) an unaudited, consolidated statements statement of income, comprehensive income and cash flows of Real the Company and its Subsidiaries for such fiscal quarter, all prepared in accordance with IFRS; provided that this requirement shall be deemed to have been satisfied if on or prior to such date Real the Company files its interim financial quarterly report on Form 10-Q for the applicable fiscal year with the applicable Canadian Securities Commissions pursuant to National Instrument 51-102 – Continuous Disclosure ObligationsSEC; and
(c) (i) access reasonable access, to and consultation with appropriate officers, directors and management personnel of Real and its Subsidiaries at such times as the extent reasonably requested by the InvestorsInvestor Parties or the Investor Representative, to the Company’s books and records, and to the Company’s officers to discuss the Company’s affairs, finances and accounts with its officers, all upon reasonable notice and at such reasonable times as the Investor Parties and the Investor Representative may reasonably request; provided that any investigation pursuant to this Section 5.15 shall be conducted in such a manner as not to interfere unreasonably with the conduct of the business of Real the Company and its Subsidiaries; provided, for consultation with further that the Investors with respect to matters relating to the business and affairs of the Issuer, and (ii) in connection with same, Real will furnish Investors with copies of any business plans, monthly financial reports, quarterly management reports, formal presentations to the Board, material documents provided to lenders of Real and such other financial and operating data and other information pertaining to Real; provided that in the case of (ii), such reports and information shall only be provided to the Investors to the extent they have been prepared by Real and made available to the Board and the lenders of Real, as applicable.
(2) Promptly after the determination of Real’s annual budget for each calendar year, Real shall promptly notify the Investors in writing of the aggregate annual budgeted recurring capital expenditure of Real and its Subsidiaries.
(3) Notwithstanding the foregoing, Real Company shall not be obligated to provide such access or materials set forth in this Section 4.6 if Real, acting in good faith, the Company determines, in its reasonable judgment based on the advice of outside counsel of international standingjudgment, that doing so would reasonably be expected to (xi) materially result in the disclosure of trade secrets or competitively sensitive information to third parties (other than Investor Parties), (ii) violate applicable securities LawsLaw, an applicable Judgment or a Contract or obligation of confidentiality owed to a third party, (yiii) jeopardize the protection of an attorney-client privilege or privilege, attorney work product protection that could reasonably relate to the information or documents in questionother legal privilege, or (ziv) expose Real the Company to risk of liability for disclosure of personal information; provided that, in that the case of each of clauses (x) through (z), Real Parties shall immediately use their commercially reasonable efforts to disclose as much information as possible, and provide the Investors with redacted, substitute or aggregated and/or anonymized documents or such information in the most permissive a manner that would not result inviolate the foregoing. In addition, as applicable, Real violating the applicable Law in question, losing the ability to assert attorney-client privilege or attorney work product protection or exposing Real notwithstanding anything to the aforementioned liability.
(4) Each party hereto acknowledges contrary contained herein, neither the Company nor any of its Subsidiaries will be required to provide any information or material that relates to, contains or reflects any analyses, studies, notes, memoranda and agrees that other information related to or prepared in connection with any Transaction Document or the Transactions or any matters relating thereto or any transactions with or matters relating to the Investor Nominee may share Parties or any information concerning Real and its Subsidiaries received by him or her from or on behalf of Real or its designated representatives with the Investors and their Representatives (other than any Persons that are Representatives solely by virtue of being actual or potential sources of debt or equity financing) (subject to the obligation Affiliates of the Investors and their Representatives to maintain the confidentiality of Confidential Information in accordance with Section 4.5)Investor.
(5) Real and the Issuer shall, as the Investors may reasonably request from time to time, provide to the Investors, pursuant to a management rights letter, such management rights as may be necessary for the Investors’ investment in Real and the Issuer to continue to qualify as a “venture capital investment” for purposes of 29 C.F.R. § 2510.3-101.
Appears in 2 contracts
Samples: Investment Agreement (KAR Auction Services, Inc.), Investment Agreement (KAR Auction Services, Inc.)
Information Rights. (1a) In order MYT Holdco shall deliver to facilitate the Trustee:
(i) the Investors’ and their Affiliates’ compliance with legal and regulatory requirements applicable to the beneficial ownership by the Investors and their Affiliates earlier of equity securities of Real, and (iiA) the provision by the Investors and their Affiliates’ of financial and other strategic advice to the business and affairs of Real and its Subsidiaries and the taking of such other actions for the benefit of Real and its Subsidiaries in the “necessary course of business” in accordance with the interpretive guidance set out in NP 51-201, for so long as the Investors or their Affiliates hold any of the Purchased Securities, Real agrees promptly to provide the Investors with the following:
ninety (a90) within 120 days after the end of each fiscal year of Real, NM Group (ior such longer period as may be provided by the SEC if NM Group were then subject to SEC reporting requirements as a non-accelerated filer) an audited, consolidated balance sheet of Real and its Subsidiaries as of the end of such fiscal year and (iiB) audited, consolidated statements the date NM Group discloses to holders of income, comprehensive income, cash flows and changes in shareholders’ equity of Real and its Subsidiaries for such secured notes earnings information with respect to the corresponding fiscal year, all such financial statements audited and certified by independent public accountants of recognized standing; provided that this requirement shall be deemed to have been satisfied if on or prior to such date Real files its the audited annual financial statements of the MYT Operating Entities for the most recently ended fiscal year of the MYT Operating Entities (which currently ends prior to the corresponding fiscal year of NM Group), prepared in accordance with German GAAP, together with a qualitative or quantitative explanation of the material applicable Canadian Securities Commissions pursuant to National Instrument 51-102 – Continuous Disclosure Obligationsdifferences between German GAAP and GAAP;
(bii) within 45 by the earlier of (A) forty-five (45) days after the end of each of the first three fiscal quarters of each fiscal year of RealNM Group (or such longer period as may be provided by the SEC if NM Group were then subject to SEC reporting requirements as a non-accelerated filer) and (B) the date NM Group discloses to holders of its secured notes earnings information with respect to the corresponding fiscal quarter, unaudited quarterly financial statements of the MYT Operating Entities for the fiscal quarter most recently ended of the MYT Operating Entities (which currently ends prior to the corresponding fiscal quarter of NM Group) and, commencing with the MYT Operating Entities’ “fiscal quarter ending in March 2020, the corresponding fiscal quarter of the prior fiscal year, prepared in accordance with German GAAP, together with a qualitative or quantitative explanation of the material applicable differences between German GAAP and GAAP;
(iii) with each set of consolidated financial statements referred to in clauses (i) an unaudited, consolidated balance sheet of Real and its Subsidiaries as of the end of such fiscal quarter and (ii) consolidated of this Section 4.06(12)(a) above, a narrative discussion of the key financial information of the MYT Operating Entities consistent with those customarily provided with earnings press releases; and
(iv) within the time period specified for filing current reports on Form 8-K by the SEC as if such items were reportable on a Form 8-K, notice of any (a) issuances of equity interests (including any debt security that is convertible into, or exchangeable for, capital stock of MYT Holdco) by MYT Holdco that are junior to the Series A Preferred Stock, (b) issuances of Indebtedness other than in the ordinary course of business pursuant to the exceptions set forth in Section 4.06(2) above and (c) Permitted Investments.
(b) Notwithstanding the foregoing, the obligations in this Section 4.06(12) may be satisfied with respect to financial information of the MYT Operating Entities by furnishing the applicable financial statements of income, comprehensive income and cash flows MYT Holdco or any Subsidiary thereof that is the direct or indirect parent of Real and its Subsidiaries for such fiscal quarter, all prepared in accordance with IFRSNMG Germany GmbH; provided that such information is accompanied by consolidating information that explains in reasonable detail the material differences between the information relating to such parent, on the one hand, and the information relating to the MYT Operating Entities on a stand-alone basis, on the other hand; and provided further that such direct or indirect parent of NMG Germany GmbH shall not conduct, transact or otherwise engage in any business or operations other than relating to its direct or indirect ownership of all of the Equity Interests in, and management of, NMG Germany GmbH.
(c) MYT Holdco shall promptly furnish any information reasonably requested by Holders or beneficial holders of at least 5% of the outstanding Notes to confirm that MYT Holdco and its subsidiaries are in compliance with the covenants set forth under this requirement Section 4.06.
(d) Documents required to be delivered pursuant to this Section 4.06(12) may be delivered electronically and if so delivered, shall be deemed to have been satisfied if delivered on the date on which (i) (x) such documents become available on the SEC’s Electronic Data Gathering Analysis and Retrieval (“XXXXX”) website or prior (y) NMG Germany GmbH (or any direct or indirect parent of NMG Germany GmbH) posts such documents, or provides a link thereto on its website; or (ii) such documents are posted on NMG Germany GmbH’s behalf on IntraLinks/IntraAgency or another similar non-public, password protected datasite.
(e) Any Person seeking access to such date Real files its interim financial report datasite will be required to represent to and agree with the MYT Operating Entities and any such parent (and by accepting such financial information, such Person will be deemed to have so represented and agreed with the MYT Operating Entities and such parent) to the good faith satisfaction of the MYT Operating Entities or such parent that:
(i) it is a holder of a Note or a bona fide prospective investor in the Notes;
(ii) if it is a prospective purchaser of the Notes, it is (a) a “qualified institutional buyer” (as defined in Rule 144A under the Securities Act), (b) a “non U.S. Person” (as defined in Regulation S under the Securities Act) or (c) an institutional “accredited investor” as defined in Rule 501(a)(1), (2), (3) or (7) under the Securities Act;
(iii) it will not use the information in violation of applicable Canadian Securities Commissions pursuant securities laws or regulations;
(iv) it will not communicate the information to National Instrument 51-102 – Continuous Disclosure Obligationsany Person and will keep the information confidential;
(v) it will use such information only in connection with evaluating, monitoring or disposing of an investment in the Notes; and
(cvi) (i) access it will not use such information in any manner intended to and consultation with appropriate officers, directors and management personnel of Real and its Subsidiaries at such times as reasonably requested by the Investors, in such manner as not to interfere unreasonably compete with the conduct of business of Real and its Subsidiaries, for consultation with the Investors with respect to matters relating to the business and affairs of the Issuer, and (ii) in connection with same, Real will furnish Investors with copies of any business plans, monthly financial reports, quarterly management reports, formal presentations to the Board, material documents provided to lenders of Real and such other financial and operating data and other information pertaining to Real; provided that in the case of (ii), such reports and information shall only be provided to the Investors to the extent they have been prepared by Real and made available to the Board and the lenders of Real, as applicableMYT Operating Entities.
(2) Promptly after the determination of Real’s annual budget for each calendar year, Real shall promptly notify the Investors in writing of the aggregate annual budgeted recurring capital expenditure of Real and its Subsidiaries.
(3) Notwithstanding the foregoing, Real shall not be obligated to provide such access or materials set forth in this Section 4.6 if Real, acting in good faith, determines, in its reasonable judgment based on the advice of outside counsel of international standing, that doing so would (x) materially violate applicable securities Laws, (y) jeopardize the protection of an attorney-client privilege or attorney work product protection that could reasonably relate to the information or documents in question, or (z) expose Real to liability for disclosure of personal information; provided that, in the case of each of clauses (x) through (z), Real shall immediately disclose as much information as possible, and provide the Investors with redacted, substitute or aggregated and/or anonymized documents or information in the most permissive manner that would not result in, as applicable, Real violating the applicable Law in question, losing the ability to assert attorney-client privilege or attorney work product protection or exposing Real to the aforementioned liability.
(4) Each party hereto acknowledges and agrees that the Investor Nominee may share any information concerning Real and its Subsidiaries received by him or her from or on behalf of Real or its designated representatives with the Investors and their Representatives (other than any Persons that are Representatives solely by virtue of being actual or potential sources of debt or equity financing) (subject to the obligation of the Investors and their Representatives to maintain the confidentiality of Confidential Information in accordance with Section 4.5).
(5) Real and the Issuer shall, as the Investors may reasonably request from time to time, provide to the Investors, pursuant to a management rights letter, such management rights as may be necessary for the Investors’ investment in Real and the Issuer to continue to qualify as a “venture capital investment” for purposes of 29 C.F.R. § 2510.3-101.
Appears in 1 contract
Samples: Guarantee and Collateral Agreement (Neiman Marcus Group LTD LLC)
Information Rights. (1a) In order to facilitate (i) the Investors’ Investor’s and their its Affiliates’ compliance with legal and regulatory requirements applicable to the beneficial ownership by the Investors Investor and their its Affiliates of equity securities of RealTricon, and (ii) oversight of the provision by the Investors Investor’s and their its Affiliates’ of financial and other strategic advice to the business and affairs of Real and its Subsidiaries and the taking of such other actions for the benefit of Real and its Subsidiaries investment in the “necessary course of business” in accordance with the interpretive guidance set out in NP 51-201Tricon, for so long as the Investors or their Affiliates hold any of the Purchased SecuritiesBeneficial Ownership Requirement is met, Real Tricon agrees promptly to provide the Investors Investor with the following:
(ai) within 120 90 days after the end of each fiscal year of RealTricon, (i) an audited, consolidated balance sheet of Real Tricon and its Subsidiaries as of the end of such fiscal year and (ii) audited, consolidated statements of income, comprehensive income, cash flows and changes in shareholders’ equity of Real Tricon and its Subsidiaries for such fiscal year, all such financial statements audited and certified by independent public accountants of recognized standing; provided that this requirement shall be deemed to have been satisfied if on or prior to such date Real Tricon files its audited annual financial statements with the applicable Canadian Securities Commissions pursuant to National Instrument 51-102 – Continuous Disclosure Obligations;Obligations or with the SEC pursuant to the U.S. Exchange Act; and
(bii) within 45 days after the end of each of the first three quarters of each fiscal year of RealTricon, (i) an unaudited, consolidated balance sheet of Real Tricon and its Subsidiaries as of the end of such fiscal quarter and (ii) consolidated statements of income, comprehensive income and cash flows of Real Tricon and its Subsidiaries for such fiscal quarter, all prepared in accordance with IFRS; provided that this requirement shall be deemed to have been satisfied if on or prior to such date Real Tricon files its interim financial report with the applicable Canadian Securities Commissions pursuant to National Instrument 51-102 – Continuous Disclosure Obligations; and
(c) (i) access to and consultation with appropriate officers, directors and management personnel of Real and its Subsidiaries at such times as reasonably requested by the Investors, in such manner as not to interfere unreasonably Obligations or with the conduct of business of Real and its Subsidiaries, for consultation with the Investors with respect to matters relating SEC pursuant to the business and affairs of the Issuer, and (ii) in connection with same, Real will furnish Investors with copies of any business plans, monthly financial reports, quarterly management reports, formal presentations to the Board, material documents provided to lenders of Real and such other financial and operating data and other information pertaining to Real; provided that in the case of (ii), such reports and information shall only be provided to the Investors to the extent they have been prepared by Real and made available to the Board and the lenders of Real, as applicableU.S. Exchange Act.
(2b) Promptly after the determination of RealTricon’s annual budget for each calendar year, Real Tricon shall promptly notify the Investors Investor in writing of the aggregate annual budgeted recurring capital expenditure of Real Tricon and its SubsidiariesSubsidiaries as described in Item 15 of Schedule C to the LLC Agreement.
(3c) Notwithstanding the foregoing, Real Tricon shall not be obligated to provide such access or materials set forth in this Section 4.6 5.8 if Real, acting in good faith, Tricon determines, in its reasonable judgment based on the advice of outside counsel of international standingcounsel, that doing so would reasonably be expected to (x) materially violate applicable securities LawsLaw, (y) jeopardize the protection of an attorney-client privilege or privilege, attorney work product protection or other legal privilege (provided, however, that could reasonably relate Tricon shall use commercially reasonable efforts to provide alternative, redacted or substitute documents or information in a manner that would not result in the information loss of the ability to assert attorney-client privilege, attorney work product protection or documents in questionother legal privileges), or (z) expose Real Tricon to liability for disclosure of personal information; provided that, in the case of each of clauses (x) through (z), Real Tricon shall immediately use commercially reasonable efforts to disclose as much information as possible, and provide the Investors with redacted, substitute or aggregated and/or anonymized documents or such information in the most permissive a manner that would not result inviolate the foregoing; provided, as applicablefurther, Real violating the applicable Law in question, losing the ability to assert attorney-client privilege or attorney work product protection or exposing Real that Tricon shall cease providing information to the aforementioned liabilityInvestor pursuant to this Section 5.8 for any period for which Investor makes such request.
(4d) Each party hereto acknowledges and agrees that the Investor Nominee may share any information concerning Real Tricon and its Subsidiaries received by him or her from or on behalf of Real Tricon or its designated representatives with the Investors Investor and their its Representatives (other than any Persons that are Representatives solely by virtue of being actual or potential sources of debt or equity financing) (subject to the obligation of the Investors Investor and their its Representatives to maintain the confidentiality of Confidential Information in accordance with Section 4.55.7).
(5) Real and the Issuer shall, as the Investors may reasonably request from time to time, provide to the Investors, pursuant to a management rights letter, such management rights as may be necessary for the Investors’ investment in Real and the Issuer to continue to qualify as a “venture capital investment” for purposes of 29 C.F.R. § 2510.3-101.
Appears in 1 contract
Samples: Investor Rights Agreement (Tricon Residential Inc.)
Information Rights. So long as at least fifty percent (150%) In order of the Series A Preferred Stock remains outstanding and the Investors continue to facilitate own at least eighty percent (i80%) of the Investors’ and their Affiliates’ compliance with legal and regulatory requirements applicable to shares of such Series A Preferred Stock (or shares of common stock issued upon conversion of the beneficial ownership Series A Preferred Stock) held by the Investors and their Affiliates of equity securities of Real, and (ii) the provision by the Investors and their Affiliates’ of financial and other strategic advice to the business and affairs of Real and its Subsidiaries and the taking of such other actions for the benefit of Real and its Subsidiaries in the “necessary course of business” in accordance with the interpretive guidance set out in NP 51-201, for so long as the Investors or their Affiliates hold any of the Purchased Securitiesdate of this Agreement, Real agrees promptly the Company will furnish the following reports to provide the Investors with the followingany Investor:
(a) within 120 one hundred twenty (120) days after the end of each fiscal year of Realthe Company, (i) an audited, a consolidated balance sheet of Real the Company and its Subsidiaries subsidiaries, if any, as of at the end of such fiscal year year, and (ii) audited, consolidated statements of income, comprehensive income, income and cash flows and changes in shareholders’ equity of Real the Company and its Subsidiaries subsidiaries, if any, for such fiscal year, all such financial statements audited and prepared in accordance with generally accepted accounting principles in Japan consistently applied, certified by independent public accountants of recognized standing; provided that this requirement shall be deemed to have been satisfied if on or prior to such date Real files its audited annual financial statements with national standing selected by the applicable Canadian Securities Commissions pursuant to National Instrument 51-102 – Continuous Disclosure Obligations;Company.
(b) within 45 forty-five (45) days after the end of the first, second, and third quarterly accounting periods in each fiscal year of the Company, an unaudited consolidated balance sheet of the Company and its subsidiaries, if any, as of the end of each such quarterly period, and unaudited consolidated statements of income and cash flows of the Company and its subsidiaries, if any, for such period.
(c) within fifteen (15) days after the end of each of the first three quarters of each fiscal year of Realmonth, (i) an unaudited, unaudited consolidated balance sheet of Real the Company and its Subsidiaries subsidiaries, if any, as of the end of such fiscal quarter monthly period, and (ii) consolidated statements of income, comprehensive income and cash flows of Real the Company and its Subsidiaries subsidiaries, if any, for such period.
(d) within forty-five (45) days after the end of each fiscal quarter, an up-to-date capitalization table, including the names of each shareholder and option or warrant holder and the number of shares, options or warrants held by each such holder, certified by the management member chiefly responsible for the finances of the Company.
(e) at least thirty (30) days prior to the beginning of each fiscal year, an operating plan for such fiscal quarteryear, including consolidated capital and operating expense budgets, cash flow projections and income and loss projections for the Company and its subsidiaries in respect of such fiscal year, all itemized in reasonable detail and prepared in accordance with IFRS; provided that this requirement shall be deemed on a monthly basis, and, promptly after preparation, any revisions to have been satisfied if on or prior to such date Real files its interim financial report with the applicable Canadian Securities Commissions pursuant to National Instrument 51-102 – Continuous Disclosure Obligations; and
(c) (i) access to and consultation with appropriate officers, directors and management personnel of Real and its Subsidiaries at such times as reasonably requested by the Investors, in such manner as not to interfere unreasonably with the conduct of business of Real and its Subsidiaries, for consultation with the Investors with respect to matters relating to the business and affairs any of the Issuer, and (ii) in connection with same, Real will furnish Investors with copies of any business plans, monthly financial reports, quarterly management reports, formal presentations to the Board, material documents provided to lenders of Real and such other financial and operating data and other information pertaining to Real; provided that in the case of (ii), such reports and information shall only be provided to the Investors to the extent they have been prepared by Real and made available to the Board and the lenders of Real, as applicableforegoing.
(2) Promptly after the determination of Real’s annual budget for each calendar year, Real shall promptly notify the Investors in writing of the aggregate annual budgeted recurring capital expenditure of Real and its Subsidiaries.
(3) Notwithstanding the foregoing, Real shall not be obligated to provide such access or materials set forth in this Section 4.6 if Real, acting in good faith, determines, in its reasonable judgment based on the advice of outside counsel of international standing, that doing so would (x) materially violate applicable securities Laws, (y) jeopardize the protection of an attorney-client privilege or attorney work product protection that could reasonably relate to the information or documents in question, or (z) expose Real to liability for disclosure of personal information; provided that, in the case of each of clauses (x) through (z), Real shall immediately disclose as much information as possible, and provide the Investors with redacted, substitute or aggregated and/or anonymized documents or information in the most permissive manner that would not result in, as applicable, Real violating the applicable Law in question, losing the ability to assert attorney-client privilege or attorney work product protection or exposing Real to the aforementioned liability.
(4) Each party hereto acknowledges and agrees that the Investor Nominee may share any information concerning Real and its Subsidiaries received by him or her from or on behalf of Real or its designated representatives with the Investors and their Representatives (other than any Persons that are Representatives solely by virtue of being actual or potential sources of debt or equity financing) (subject to the obligation of the Investors and their Representatives to maintain the confidentiality of Confidential Information in accordance with Section 4.5).
(5) Real and the Issuer shall, as the Investors may reasonably request from time to time, provide to the Investors, pursuant to a management rights letter, such management rights as may be necessary for the Investors’ investment in Real and the Issuer to continue to qualify as a “venture capital investment” for purposes of 29 C.F.R. § 2510.3-101.
Appears in 1 contract
Samples: Investor Rights Agreement (Third Wave Technologies Inc /Wi)
Information Rights. (1) In order to facilitate (i) the Investors’ and their Affiliates’ compliance with legal and regulatory requirements applicable to the beneficial ownership by the Investors and their Affiliates of equity securities of Real, and (ii) the provision by the Investors and their Affiliates’ of financial and other strategic advice to the business and affairs of Real and its Subsidiaries and the taking of such other actions for the benefit of Real and its Subsidiaries in the “necessary course of business” in accordance with the interpretive guidance set out in NP 51-201, for so As long as a Qualified Public Offering has not been effected, the Investors or their Affiliates hold Company as well as any of its subsidiaries shall deliver to each Shareholder the Purchased Securities, Real agrees promptly to provide the Investors with the followingfollowing information:
(a) within 120 90 (ninety) days after the end of each fiscal year of Real, the respective company (i) an audited, a consolidated balance sheet audited financial statement of Real the Company and audited financial statements of any of its Subsidiaries subsidiaries as of the end of such each fiscal year and year, (ii) audited, the related consolidated statements of income, comprehensive income, cash flows and changes in shareholders’ equity of Real and its Subsidiaries cash flows for such the fiscal yearyear then ended, all such financial statements audited prepared in accordance with Austrian GAAP and restated in accordance with US-GAAP or IAS (as determined by the Supervisory Board) and both versions certified by a firm of independent public accountants of recognized standing; provided that this requirement shall be deemed to have been satisfied if on or international standing selected by the Shareholders Meeting (the Annual Financial Statement), and (iii) any related letters from such accounting firm. The Annual Financial Statement should also include comparative statements from the prior to such date Real files its audited annual financial statements with fiscal year and the applicable Canadian Securities Commissions most recent 12-month budget delivered by the respective company pursuant to National Instrument 51-102 – Continuous Disclosure Obligationsthis section 7.1 below;
(b) within 45 30 days (thirty) after the end of each of the first three quarters of each fiscal year of Real, the respective company (iother than the last quarter in each fiscal year) an unaudited, a consolidated balance sheet of Real the Company and an unconsolidated balance sheet of any of its subsidiaries and the related consolidated and unconsolidated statements of income, stockholders’ equity and cash flows, audited, unless otherwise approved by the Supervisory Board, and prepared in accordance with US-GAAP or IAS (in case of the consolidated documents) and Austrian-GAAP (in case of the unconsolidated documents) and certified by the management board of the respective company (the Quarterly Balance Sheet); The Quarterly Balance Sheet shall be accompanied by the quarterly management report describing the current status of the respective company and its Subsidiaries respective operations and prospects. The Quarterly Balance Sheet should be prepared as of the end of such fiscal quarter and (ii) with consolidated statements of income, comprehensive income and cash flows of Real and its Subsidiaries to be for such quarter and for the period from the beginning of the fiscal year to the end of such quarter, all prepared in accordance with IFRS; provided that this requirement shall be deemed to have been satisfied if on or prior to such date Real files its interim financial report with the applicable Canadian Securities Commissions pursuant to National Instrument 51-102 – Continuous Disclosure Obligations; and;
(c) within 20 (itwenty) access to and consultation with appropriate officers, directors and management personnel of Real and its Subsidiaries at such times as reasonably requested by the Investors, in such manner as not to interfere unreasonably with the conduct of business of Real and its Subsidiaries, for consultation with the Investors with respect to matters relating to the business and affairs of the Issuer, and (ii) in connection with same, Real will furnish Investors with copies of any business plans, monthly financial reports, quarterly management reports, formal presentations to the Board, material documents provided to lenders of Real and such other financial and operating data and other information pertaining to Real; provided that in the case of (ii), such reports and information shall only be provided to the Investors to the extent they have been prepared by Real and made available to the Board and the lenders of Real, as applicable.
(2) Promptly days after the determination end of Real’s annual budget for each calendar yearmonth a management report reflecting the key financial figures in regard to income/loss, Real shall promptly notify the Investors in writing of the aggregate annual budgeted recurring cash flow and capital expenditure of Real and its Subsidiaries.the respective company;
(3d) Notwithstanding no later than year end, consolidated and unconsolidated capital and operating expense budget, cash flow projections and income and loss projections for the respective company in respect of such fiscal year, all itemized in reasonable detail and prepared on a monthly basis, and, promptly after preparation, any revisions to any of the foregoing;
(e) promptly, Real shall not and in any event within five days after notice has been received by the respective company, of any material litigation or an adverse claim, dispute or any other developments which may be obligated deemed material to provide such access or materials set forth in this Section 4.6 if Realoperations, acting in good faith, determines, in its reasonable judgment based on the advice of outside counsel of international standing, that doing so would (x) materially violate applicable securities Laws, (y) jeopardize the protection of an attorney-client privilege or attorney work product protection that could reasonably relate to the information or documents in questionassets, or (z) expose Real to liability for disclosure properties of personal information; provided that, in the case of each of clauses (x) through (z), Real shall immediately disclose as much information as possible, and provide the Investors with redacted, substitute or aggregated and/or anonymized documents or information in the most permissive manner that would not result in, as applicable, Real violating the applicable Law in question, losing the ability to assert attorney-client privilege or attorney work product protection or exposing Real to the aforementioned liability.respective company;
(4f) Each party hereto acknowledges and agrees that the Investor Nominee may share any information concerning Real and its Subsidiaries received by him or her from or on behalf of Real or its designated representatives with the Investors and their Representatives (other than any Persons that are Representatives solely by virtue of being actual or potential sources of debt or equity financing) (subject to the obligation of the Investors and their Representatives to maintain the confidentiality of Confidential Information in accordance with Section 4.5).
(5) Real and the Issuer shallpromptly, as the Investors may reasonably request from time to time, provide to such other information regarding the Investorsbusiness, pursuant to prospects, financial condition, operations, property or affairs of the respective company that a management rights letter, such management rights as Shareholder reasonably may be necessary for request; and
(g) annual budgets after approval by the Investors’ investment in Real and Supervisory Board of the Issuer to continue to qualify as a “venture capital investment” for purposes of 29 C.F.R. § 2510.3-101respective company.
Appears in 1 contract
Information Rights. (1a) In order to facilitate The Company shall, and shall cause its Subsidiaries to, permit (i) the Investors’ and their Affiliates’ compliance with legal and regulatory requirements applicable to the beneficial ownership by the Investors and their Affiliates any holder of equity securities of Real, Senior Preferred Stock and (ii) the provision by the FRG Investors and their Affiliates’ of financial and other strategic advice to the business and affairs of Real and its Subsidiaries and the taking of such other actions for the benefit of Real and its Subsidiaries in the “necessary course of business” in accordance with the interpretive guidance set out in NP 51-201, for so long as any FRG Investor and/or an Affiliate thereof (and any Permitted Transferees thereof) Beneficially Own shares of Common Stock, in the aggregate, in excess of 10% of the Common Stock (on an as-converted basis) (clauses (i) and (ii) together, the “Information Rights Holders”), upon the reasonable request of any such Information Rights Holder to provide such Information Rights Holder and its authorized representatives with reasonable access during normal business hours, and upon reasonable advance written notice, to the books and records of the Company and its Subsidiaries.
(b) Without limiting the foregoing, the Company shall, and shall cause its Subsidiaries to, deliver to the FRG Investors or their Affiliates hold the following (provided that the public filing with the SEC of any of the Purchased Securities, Real agrees promptly following shall satisfy the delivery requirements to provide the FRG Investors with the following:set forth herein):
(ai) within 120 90 days after the end of each fiscal year of Realthe Company (or such later date as Form 10-K of the Company is required to be filed with the SEC), (i) an audited, its audited consolidated balance sheet and audited consolidated statements of Real operations, shareholders’ equity and its Subsidiaries cash flows as of the end of such fiscal year and (ii) audited, consolidated statements of income, comprehensive income, cash flows and changes in shareholders’ equity of Real and its Subsidiaries for such fiscal year, all such financial statements audited and certified related notes thereto, setting forth in each case in comparative form the figures for the previous fiscal year, prepared in accordance with generally accepted auditing standards and reported on by an independent public accountants of recognized standing; provided national standing to the effect that this requirement shall be deemed to have been satisfied if on or prior to such date Real files its audited annual financial statements with present fairly in all material respects the applicable Canadian Securities Commissions pursuant to National Instrument 51-102 – Continuous Disclosure Obligationsfinancial condition, results of operations and cash flow of the Company and its Subsidiaries on a consolidated basis as of the end of and for such fiscal year;
(bii) within 45 days after the end of each of the first three fiscal quarters of each fiscal year of Realthe Company (or such later date as Form 10-Q of the Company), (i) an unaudited, its unaudited consolidated balance sheet and unaudited consolidated statements of Real operations and its Subsidiaries cash flows as of the end of and for such fiscal quarter and (ii) consolidated statements of income, comprehensive income and cash flows of Real and its Subsidiaries for such fiscal quarter, all prepared in accordance with IFRS; provided that this requirement shall be deemed to have been satisfied if on or prior to such date Real files its interim financial report with the applicable Canadian Securities Commissions pursuant to National Instrument 51-102 – Continuous Disclosure Obligations; and
(c) (i) access to and consultation with appropriate officers, directors and management personnel of Real and its Subsidiaries at such times as reasonably requested by the Investors, in such manner as not to interfere unreasonably with the conduct of business of Real and its Subsidiaries, for consultation with the Investors with respect to matters relating to the business and affairs then elapsed portion of the Issuerfiscal year, and (ii) setting forth in connection with same, Real will furnish Investors with copies of any business plans, monthly financial reports, quarterly management reports, formal presentations to each case in comparative form the Board, material documents provided to lenders of Real and such other financial and operating data and other information pertaining to Real; provided that in figures for the case corresponding period or periods of (ii), such reports and information shall only be provided to the Investors to the extent they have been prepared by Real and made available to the Board and the lenders of Real, as applicable.
(2) Promptly after the determination of Real’s annual budget for each calendar year, Real shall promptly notify the Investors in writing of the aggregate annual budgeted recurring capital expenditure of Real and its Subsidiaries.
(3) Notwithstanding the foregoing, Real shall not be obligated to provide such access or materials set forth in this Section 4.6 if Real, acting in good faith, determines, in its reasonable judgment based on the advice of outside counsel of international standing, that doing so would (x) materially violate applicable securities Laws, (y) jeopardize the protection of an attorney-client privilege or attorney work product protection that could reasonably relate to the information or documents in question, or (z) expose Real to liability for disclosure of personal information; provided thator, in the case of the balance sheet, as of the end of) the previous fiscal year;
(iii) concurrently with the delivery thereof to BRF Finance Co., LLC, a Delaware limited liability, or otherwise promptly following a request therefor by an FRG Investor, in each case, in respect of clauses (x) through (z)any indebtedness of the Company or any Subsidiary under that certain Term Loan and Security Agreement, Real shall immediately disclose dated as much information of December 18, 2023, by and among the Company, as possibleparent and guarantor, Conn Appliances, Inc., a Texas corporation, Conn Credit I, LP, a Texas limited partnership, Conn Credit Corporation, Inc., a Texas corporation, and provide the Investors with redactedW.S. Badcock LLC, substitute or aggregated and/or anonymized documents or information in the most permissive manner that would not result ina Florida limited liability company, as applicableborrowers, Real violating the applicable Law in question, losing the ability to assert attorney-client privilege or attorney work product protection or exposing Real to the aforementioned liability.
(4) Each party hereto acknowledges and agrees that the Investor Nominee may share any information concerning Real and its Subsidiaries received by him or her from or on behalf of Real or its designated representatives with the Investors and their Representatives (other than any Persons that are Representatives solely by virtue of being actual or potential sources of debt or equity financing) (subject to the obligation of the Investors and their Representatives to maintain the confidentiality of Confidential Information in accordance with Section 4.5).
(5) Real and the Issuer shall, as the Investors may reasonably request financial institutions from time to timetime party thereto as lenders and BRF Finance Co., provide to the InvestorsLLC, pursuant to a management rights letter, such management rights as may be necessary administrative agent and collateral agent for the Investors’ investment lenders (the “BRF Facility”), copies of all documents, reports, information or other materials provided to (or that would needed to have been provided to) such lender under the BRF Facility as in Real effect on the date hereof and the Issuer irrespective of whether such indebtedness remains outstanding; and
(iv) promptly following a request therefor, all other documents, reports, information or other materials requested to continue satisfy any and all FRG Investor obligations to qualify as a “venture capital investment” for purposes of 29 C.F.R. § 2510.3-101any bank or lender thereof.
Appears in 1 contract
Information Rights. The Corporation will furnish to each Stockholder owning at least five percent (15%) In order to facilitate (i) the Investors’ and their Affiliates’ compliance with legal and regulatory requirements applicable to the beneficial ownership by the Investors and their Affiliates of equity securities of Real, and (ii) the provision by the Investors and their Affiliates’ of financial and other strategic advice to the business and affairs of Real and its Subsidiaries and the taking of such other actions for the benefit of Real and its Subsidiaries in the “necessary course of business” in accordance with the interpretive guidance set out in NP 51-201, for so long as the Investors or their Affiliates hold any of the Purchased Securities, Real agrees promptly to provide all issued and outstanding shares of Common Stock the Investors with the followingfollowing information:
(a) within 120 days after As soon as available, but no later than the end later of each fiscal year of Real, (i) an audited, consolidated balance sheet ninety (90) days following completion of Real and its Subsidiaries as of the end of such each fiscal year and (ii) auditedthe applicable filing deadline under Securities Exchange Commission (the “SEC”) rules, the audited consolidated balance sheet of the Corporation and its Subsidiaries as at the end of each such fiscal year and the audited consolidated statements of income, comprehensive income, cash flows and changes in shareholdersstockholders’ equity for such year of Real the Corporation and its Subsidiaries Subsidiaries, setting forth in each case in comparative form the figures for such the next preceding fiscal year, all such financial statements audited and accompanied by the report of independent certified by independent public accountants of recognized national standing; provided that this requirement shall be deemed to have been satisfied if if, on or prior to such date Real date, the Corporation files its audited annual financial statements report on Form 10-K for the applicable fiscal year with the applicable Canadian Securities Commissions pursuant to National Instrument 51-102 – Continuous Disclosure ObligationsSEC;
(b) within 45 As soon as available, but no later than the later of (i) forty-five (45) days after the end of each of the first three quarters following completion of each fiscal year of Realquarter (other than the fourth fiscal quarter) and (ii) the applicable filing deadlines under SEC rules, (i) an unaudited, the consolidated balance sheet of Real the Corporation and its Subsidiaries as of at the end of such fiscal quarter and (ii) the consolidated statements of income, comprehensive income and cash flows and changes in stockholders’ equity for such quarter and the portion of Real the fiscal year then ended of the Corporation and its Subsidiaries Subsidiaries, setting forth in each case the figures for such the corresponding periods of the previous fiscal quarter, all prepared year in accordance with IFRScomparative form; provided that this requirement shall be deemed to have been satisfied if if, on or prior to such date Real date, the Corporation files its interim financial quarterly report on Form 10-Q for the applicable fiscal quarter with the applicable Canadian Securities Commissions pursuant to National Instrument 51-102 – Continuous Disclosure Obligations; andSEC;
(c) Within ninety (i90) access days after the end of each fiscal year, such information that the Corporation then-has which is reasonably necessary for the preparation of such Stockholder’s income tax returns (whether federal, state or foreign);
(d) Reasonable access, to and consultation with appropriate officers, directors and management personnel of Real and its Subsidiaries at such times as the extent reasonably requested by the InvestorsStockholder, to the offices and the properties of the Corporation and its Subsidiaries, including its and their books and records, and to discuss its and their affairs, finances and accounts with its and their officers, all upon reasonable notice and at such reasonable times and as often as the Stockholder may reasonably request; provided that any investigation pursuant to this Section 7(c) shall be conducted in such a manner as not to interfere unreasonably with the conduct of the business of Real the Corporation and its Subsidiaries; provided, for consultation with that, in each case, the Investors with respect to matters relating to the business and affairs of the Issuer, and (ii) in connection with same, Real will furnish Investors with copies of any business plans, monthly financial reports, quarterly management reports, formal presentations to the Board, material documents provided to lenders of Real and such other financial and operating data and other information pertaining to Real; provided that in the case of (ii), such reports and information shall only be provided to the Investors to the extent they have been prepared by Real and made available to the Board and the lenders of Real, as applicable.
(2) Promptly after the determination of Real’s annual budget for each calendar year, Real shall promptly notify the Investors in writing of the aggregate annual budgeted recurring capital expenditure of Real and its Subsidiaries.
(3) Notwithstanding the foregoing, Real Corporation shall not be obligated to provide such access or materials set forth in this Section 4.6 if Real, acting in good faith, the Corporation determines, in its reasonable judgment based on the advice of outside counsel of international standingjudgment, that doing so would reasonably be expected to (xi) materially result in the disclosure of trade secrets or competitively sensitive information to third parties, (ii) violate applicable securities Lawslaw or any contractual or other obligation of confidentiality owing to a third party, (yiii) jeopardize the protection of an attorney-client privilege or privilege, attorney work product protection or other legal privilege (provided, however, that could reasonably relate the Corporation shall use reasonable efforts to the information provide alternative, redacted or documents in question, or (z) expose Real to liability for disclosure of personal information; provided that, in the case of each of clauses (x) through (z), Real shall immediately disclose as much information as possible, and provide the Investors with redacted, substitute or aggregated and/or anonymized documents or information in the most permissive a manner that would not result in, as applicable, Real violating in the applicable Law in question, losing loss of the ability to assert attorney-client privilege or privilege, attorney work product protection or exposing Real other legal privileges), or (iv) expose the Corporation to risk of liability for disclosure of personal information. In furtherance of the foregoing, each Stockholder agrees that it shall not (and shall cause its Subsidiaries not to) use or disclose any information or materials received pursuant to this Section 7 (or otherwise received from or in respect of the Corporation or its Subsidiaries or which is otherwise related to the aforementioned liability.
(4Corporation’s or its Subsidiaries’ business) Each party hereto acknowledges and agrees in a manner that would reasonably be expected to be adverse to the Corporation or its Subsidiaries or their respective businesses, except that the Investor Nominee may share foregoing shall not in any information concerning Real and its Subsidiaries received by him way limit, restrict or her from supersede in any respect any waiver of corporate opportunity doctrine or on behalf similar provision in favor of Real or its designated representatives with any Stockholder in any of the Investors and their Representatives Corporation’s Governing Documents (other than any Persons that are Representatives solely by virtue of being actual or potential sources of debt or equity financingincluding the Charter) (subject and in the event of any conflict between any such provision and this sentence with respect to the obligation of the Investors and their Representatives to maintain the confidentiality of Confidential Information in accordance with Section 4.5any Stockholder, such provision shall control).
(5) Real and the Issuer shall, as the Investors may reasonably request from time to time, provide to the Investors, pursuant to a management rights letter, such management rights as may be necessary for the Investors’ investment in Real and the Issuer to continue to qualify as a “venture capital investment” for purposes of 29 C.F.R. § 2510.3-101.
Appears in 1 contract
Information Rights. (1) In order to facilitate (i) the Investors’ and their AffiliatesPurchasers’ compliance with legal and regulatory requirements applicable to the beneficial ownership by the Investors Purchasers and their Affiliates of equity securities of Realthe Company, and (ii) oversight of the provision by the Investors and their AffiliatesPurchasers’ of financial and other strategic advice to the business and affairs of Real and its Subsidiaries and the taking of such other actions for the benefit of Real and its Subsidiaries investment in the “necessary course of business” in accordance with the interpretive guidance set out in NP 51-201Company, for so long as the Investors or their Affiliates hold any of Providence 25% Beneficial Holding Requirement is satisfied, with respect to the Purchased SecuritiesProvidence Purchasers, Real and so long as the Ares 25% Beneficial Holding Requirement is satisfied, with respect to the Ares Purchasers, the Company agrees promptly to provide the Investors Providence Purchasers and/or the Ares Purchasers, as the case may be, with the following:
: (a) within 120 90 days after the end of each fiscal year of Realthe Company, (i) an audited, consolidated balance sheet of Real the Company and its Subsidiaries as of the end of such fiscal year and (ii) audited, consolidated statements of income, comprehensive income, cash flows and changes in shareholdersstockholders’ equity of Real the Company and its Subsidiaries for such fiscal year, all such financial statements audited and certified by independent public accountants of recognized standing; provided that this requirement shall be deemed to have been satisfied if on or prior to such date Real (or such later date as may be permitted by the SEC pursuant to a widely-available extension) the Company files its audited annual financial statements report on Form 10-K for the applicable fiscal year with the applicable Canadian Securities Commissions pursuant to National Instrument 51-102 – Continuous Disclosure Obligations;
SEC; (b) within 45 days after the end of each of the first three quarters of each fiscal year of Realthe Company, (i) an unaudited, consolidated balance sheet of Real the Company and its Subsidiaries as of the end of such fiscal quarter and (ii) consolidated statements of income, comprehensive income and cash flows of Real the Company and its Subsidiaries for such fiscal quarter, all prepared in accordance with IFRS; provided that this requirement shall be deemed to have been satisfied if on or prior to such date Real (or such later date as may be permitted by the SEC pursuant to a widely-available extension) the Company files its interim financial quarterly report on Form 10-Q for the applicable fiscal quarter with the applicable Canadian Securities Commissions pursuant to National Instrument 51-102 – Continuous Disclosure ObligationsSEC; and
and (c) (i) access to and consultation with appropriate officers, directors and management personnel of Real and its Subsidiaries at such times as reasonably requested by the Investors, in such manner as not to interfere unreasonably with the conduct of business of Real and its Subsidiaries, for consultation with the Investors with respect to matters relating to the business and affairs of the Issuer, and (ii) in connection with same, Real will furnish Investors with copies of any all material, substantive materials (which may include monthly financial information, budget and business plans, monthly financial reports, quarterly management reports, formal presentations to the Board, material documents provided to lenders of Real and such other financial and operating data and other information pertaining creditors, among others) provided to Realthe Board at substantially the same time as provided to the Board; provided that in this requirement shall be deemed to have been satisfied with respect to (A) the case of (ii), Providence Purchasers if the Company provides such reports and information shall only be provided materials to the Investors Providence Director, or, to the extent they have been prepared by Real and made available to the Board and the lenders of Realthere is no Providence Director, as applicable.
(2) Promptly after the determination of Real’s annual budget for each calendar year, Real shall promptly notify the Investors one Person designated in writing by the Providence Purchasers to receive such materials, which shall be an Affiliate or Representative of the aggregate annual budgeted recurring capital expenditure Providence Purchasers and (B) the Ares Purchasers if the Company provides such materials to one Person designated in writing by the Ares Purchasers to receive such materials, which shall be an Affiliate or Representative of Real and its Subsidiaries.
(3) Notwithstanding the foregoingAres Purchasers; provided, Real further that the Company shall not be obligated to provide such access or materials set forth in this Section 4.6 5.13 if Real, acting in good faith, the Company determines, in its reasonable judgment based on the advice of outside counsel of international standingjudgment, that doing so would (w) result in the disclosure of trade secrets or competitively sensitive information to third parties (other than the Purchaser Parties), (x) materially violate applicable securities LawsLaw, (y) jeopardize the protection of an attorney-client privilege or privilege, attorney work product protection that could reasonably relate to the information or documents in questionother legal privilege, or (z) expose Real the Company to risk of liability for disclosure of personal information; provided that, in the case of each of clauses (x) through (z), Real shall immediately disclose as much information as possible, and provide the Investors with redacted, substitute or aggregated and/or anonymized documents or information in the most permissive manner that would not result in, as applicable, Real violating the applicable Law in question, losing the ability to assert attorney-client privilege or attorney work product protection or exposing Real to the aforementioned liability.
(4) Each party hereto acknowledges and agrees that the Investor Nominee may share any information concerning Real and its Subsidiaries received by him or her from or on behalf of Real or its designated representatives with the Investors and their Representatives (other than any Persons that are Representatives solely by virtue of being actual or potential sources of debt or equity financing) (subject to the obligation of the Investors and their Representatives to maintain the confidentiality of Confidential Information in accordance with Section 4.5).
(5) Real and the Issuer shall, as the Investors may reasonably request from time to time, provide to the Investors, pursuant to a management rights letter, such management rights as may be necessary for the Investors’ investment in Real and the Issuer to continue to qualify as a “venture capital investment” for purposes of 29 C.F.R. § 2510.3-101.
Appears in 1 contract
Information Rights. (1) In order to facilitate (i) the Investors’ and their Affiliates’ compliance with legal and regulatory requirements applicable to the beneficial ownership by the Investors and their Affiliates of equity securities of Real, and (ii) the provision by the Investors and their Affiliates’ of financial and other strategic advice to the business and affairs of Real and its Subsidiaries and the taking of such other actions for the benefit of Real and its Subsidiaries in the “necessary course of business” in accordance with the interpretive guidance set out in NP 51-201, for so So long as the Investors Wafra Management Subscribers collectively own any Ownership Interests, DCMH shall provide or their Affiliates hold any of make available to the Purchased Securities, Real agrees promptly to provide the Investors with Wafra Representative the following:
(a) as soon as practicable, and in any event within 120 one-hundred twenty (120) days after following the end of each fiscal year Fiscal Year, beginning with the end of Realthe Fiscal Year ending December 31, 2020, the (i) an auditedconsolidated audited financial statements of the Digital Colony Management Parties for such Fiscal Year, consolidated including a balance sheet of Real and its Subsidiaries as of the end of such fiscal year Fiscal Year and the related statements of operations, changes in member’s equity (deficit) and cash flows for such Fiscal Year, prepared in accordance with GAAP and certified by DCMH’s independent public accountants (which shall be a firm of nationally recognized independent accountants), consisting of statements of (x) the financial condition of the Digital Colony Management Parties and (iiy) audited, consolidated statements of income, comprehensive income, cash flows and changes in shareholdersmembers’ equity of Real and its Subsidiaries capital for such fiscal yearFiscal Year, all such and (ii) the audited financial statements audited of the Digital Colony Funds, if any, including a balance sheet as of the end of such Fiscal Year and the related statements of operations, changes in member’s equity (deficit) and cash flows for such Fiscal Year, prepared in accordance with GAAP, and certified by the Digital Colony Funds’ independent public accountants of recognized standing; provided that this requirement (which shall be deemed to have been satisfied if on or prior to such date Real files its audited annual financial statements with the applicable Canadian Securities Commissions pursuant to National Instrument 51-102 – Continuous Disclosure Obligationsa firm of nationally recognized independent accountants);
(b) as soon as practicable, and in any event within 45 sixty (60) days after following the end of each of the first three fiscal quarters of each fiscal year Fiscal Year of Realthe Digital Colony Management Parties, (i) an unauditedthe consolidated unaudited financial statements of the Digital Colony Management Parties for such fiscal quarter, consolidated prepared in accordance with GAAP, including a balance sheet of Real and its Subsidiaries as of the end of such fiscal quarter and the related statements of operations, changes in member’s equity (deficit) and cash flows for such fiscal quarter and (ii) consolidated the unaudited financial statements of income, comprehensive income and cash flows of Real and its Subsidiaries each Digital Colony Fund for such fiscal quarter, all prepared in accordance with IFRS; provided that this requirement shall be deemed to have been satisfied if on or prior to GAAP, including a balance sheet as of the end of such date Real files its interim financial report fiscal quarter and the related statements of operations, changes in member’s equity (deficit) and cash flows for such fiscal quarter, prepared in accordance with the applicable Canadian Securities Commissions pursuant to National Instrument 51-102 – Continuous Disclosure Obligations; andGAAP;
(c) on a quarterly basis, a summary describing, in reasonable detail, any Related Party Transactions that were entered into, modified or terminated in each such quarter and a true and correct list of each Person who has the right to receive Carried Interest from any Digital Colony Fund, together with the amount and/or percentage of such Carried Interest owned by each such Person, to the extent of any changes from the prior quarter; LA_LAN01:362977.13
(d) on a quarterly basis, a copy of the standard reporting package (including financial statements) made available to the investors in any Digital Colony Fund, at substantially the same time such package is generally distributed to such investors;
(e) on a quarterly basis, copies of investor letters and reports regarding Digital Colony Funds made generally available to investors, at substantially the same time such letters and reports are distributed to such investors;
(f) on a quarterly basis, a determination of the Available Cash of DCMH (including NFRE and Balance Sheet Management Proceeds and any calculations thereof or adjustments thereto, together with reasonable supporting detail with respect to such calculations), and such other information as may be reasonably requested by the Wafra Representative, in the form attached hereto as Exhibit C;
(g) no later than thirty (30) days following the end of each Fiscal Year, the Digital Colony Management Parties’ operating budget and business plan prepared with respect to the business of managing the Digital Colony Funds;
(h) no later than thirty (30) days following the end of each Fiscal Year, the Digital Colony Management Parties’ good faith estimate of projected exit proceeds from each portfolio investment;
(i) access to the extent not restricted by Law, notice as soon as reasonably practicable if the Digital Colony Companies or any Digital Colony Fund receives a non-routine letter from any U.S. or non-U.S. securities regulatory body, including the SEC, describing its findings from an examination conducted by such regulator that identifies any material deficiencies;
(j) prompt written notice (and consultation in any event not later than five (5) Business Days) after becoming aware of any action or proceeding or receiving notice of any investigation pending before any court or Governmental Authority, including, without limitation, the SEC or any state securities regulatory authority against the Digital Colony Companies or any of their Controlled Affiliates or senior officers of the Digital Colony Companies that claim or allege (x) any violation of any federal or state securities law, rule or regulation, or (y) any breach of fiduciary duties, in each case that would reasonably be expected to have an adverse effect on the Digital Colony Companies or any of the Digital Colony Funds;
(k) prompt notice of any other material issues that might arise in the Digital Colony Business from time to time, including any action or proceeding or receiving formal written notice of any investigation commenced against any partner of the Digital Colony Companies or any of their employees, directors, officers or partners or any Managing Director or Successor, and any other litigation with appropriate officersrespect to any partner of the Digital Colony Companies or any of its employees, directors directors, officers or partners or any Managing Director or Successor, in each case that may reasonably be expected to have a material adverse effect on the Digital Colony Companies or any of the Digital Colony Funds;
(l) copies of all materials prepared for the advisory committee of each Digital Colony Fund in which the Wafra Management Subscribers or other Wafra Entity directly or indirectly LA_LAN01:362977.13 is an investor, including, for the avoidance of doubt, any Digital Colony Fund in which any Wafra Entity is making, directly or indirectly, any Sponsor Commitment, contemporaneously with the distribution of such materials to the members of such advisory committee;
(m) copies of any material legal, operating, compliance, gift, entertainment and management personnel other policies and procedures of Real and its Subsidiaries at such times the Digital Colony Companies, including any material amendments relating thereto;
(n) information reasonably requested by the Wafra Representative in connection with any Wafra Consent, approval or other action required to be taken by the Wafra Representative or any other Wafra Entity under this Agreement or the Ancillary Agreements, including information reasonably necessary to confirm compliance with the obligations set forth herein or therein;
(o) as reasonably requested by the InvestorsWafra Representative, valuation materials regarding the reported net asset value of any of the Digital Colony Funds but only to the extent readily available;
(p) to the extent reasonably practicable, position level information regarding any Digital Colony Fund (and underlying portfolio investments) in such manner as not to interfere unreasonably with which the conduct of business of Real and its SubsidiariesWafra Management Subscriber or other Wafra Entity is directly or indirectly an investor, including, for consultation with the Investors avoidance of doubt, any Digital Colony Fund in which any Wafra Entity is making, directly or indirectly, any Sponsor Commitment, to the extent such position level information is reasonably requested to assist the Wafra Management Subscribers or any of their Affiliates in the monitoring and valuation of the Wafra Entities’ Interests other than material non-public information (unless it is legally permissible to be so provided) with respect to matters relating any securities traded on a national securities exchange;
(q) calculations provided to any lender in connection with the covenants in, and any reports delivered to any lender in accordance with, any credit agreements or credit facility of the Digital Colony Companies;
(r) as reasonably requested by the Wafra Representative, all Fund Documentation for the Digital Colony Funds and side letters pertaining thereto (in each case, including any amendments or changes thereto), except for redacted information to the business and affairs extent required to comply with applicable confidentiality requirements set forth therein;
(s) upon the reasonable request of the IssuerWafra Representative and to the extent reasonably practicable, such additional information regarding the status of the Digital Colony Business and its financial performance, the performance of each Digital Colony Management Party’s investment products, and legal, regulatory and compliance matters; and
(t) without limitation of the information and reports described in this Section 5.2, promptly upon request of the Wafra Representative, the Digital Colony Management Parties will provide the Wafra Representative with (i) copies of all materials provided generally to investors in the Digital Colony Funds and other investment products, including, for example, investment LA_LAN01:362977.13 letters and client and risk reports and (ii) in connection with same, Real will furnish Investors with copies of any business plans, monthly financial reports, quarterly management reports, formal presentations to the Board, material documents provided to lenders of Real and such other financial and operating data and other information pertaining reasonably necessary to Real; provided that in confirm compliance with the case of (ii), such reports and information shall only be provided to the Investors to the extent they have been prepared by Real and made available to the Board and the lenders of Real, as applicable.
(2) Promptly after the determination of Real’s annual budget for each calendar year, Real shall promptly notify the Investors in writing of the aggregate annual budgeted recurring capital expenditure of Real and its Subsidiaries.
(3) Notwithstanding the foregoing, Real shall not be obligated to provide such access or materials obligations set forth in this Section 4.6 if Real, acting in good faith, determines, in its reasonable judgment based on the advice of outside counsel of international standing, that doing so would (x) materially violate applicable securities Laws, (y) jeopardize the protection of an attorney-client privilege or attorney work product protection that could reasonably relate to the information or documents in question, or (z) expose Real to liability for disclosure of personal information; provided that, in the case of each of clauses (x) through (z), Real shall immediately disclose as much information as possible, and provide the Investors with redacted, substitute or aggregated and/or anonymized documents or information in the most permissive manner that would not result in, as applicable, Real violating the applicable Law in question, losing the ability to assert attorney-client privilege or attorney work product protection or exposing Real to the aforementioned liability.
(4) Each party hereto acknowledges and agrees that the Investor Nominee may share any information concerning Real and its Subsidiaries received by him or her from or on behalf of Real or its designated representatives with the Investors and their Representatives (other than any Persons that are Representatives solely by virtue of being actual or potential sources of debt or equity financing) (subject to the obligation of the Investors and their Representatives to maintain the confidentiality of Confidential Information in accordance with Section 4.5).
(5) Real Agreement and the Issuer shall, as the Investors may reasonably request from time to time, provide to the Investors, pursuant to a management rights letter, such management rights as may be necessary for the Investors’ investment in Real and the Issuer to continue to qualify as a “venture capital investment” for purposes of 29 C.F.R. § 2510.3-101other Ancillary Agreements.
Appears in 1 contract
Information Rights. (1) In order The Corporation will furnish to facilitate (i) the Investors’ and their Affiliates’ compliance with legal and regulatory requirements applicable to the beneficial ownership by the Investors and their Affiliates of equity securities of Real, and (ii) the provision by the Investors and their Affiliates’ of financial and other strategic advice to the business and affairs of Real and its Subsidiaries and the taking of such other actions for the benefit of Real and its Subsidiaries in the “necessary course of business” in accordance with the interpretive guidance set out in NP 51-201Sanken, for so long as Sanken and its Affiliates beneficially own, directly or indirectly, in the Investors or their Affiliates hold any aggregate at least ten percent (10%) of all issued and outstanding shares of Common Stock, the Purchased Securities, Real agrees promptly to provide the Investors with the followingfollowing information:
(a) within 120 days after as soon as available, but no later than the end later of each fiscal year of Real, (i) an audited, consolidated balance sheet ninety (90) days following completion of Real and its Subsidiaries as of the end of such each fiscal year and (ii) auditedthe applicable filing deadline under SEC rules, the audited consolidated balance sheet of the Corporation and its Subsidiaries as at the end of each such fiscal year and the audited consolidated statements of income, comprehensive income, cash flows and changes in shareholdersstockholders’ equity for such year of Real the Corporation and its Subsidiaries Subsidiaries, setting forth in each case in comparative form the figures for such the next preceding fiscal year, all such financial statements audited and accompanied by the report of independent certified by independent public accountants of recognized national standing; provided that this requirement shall be deemed to have been satisfied if if, on or prior to such date Real date, the Corporation files its audited annual financial statements report on Form 10-K for the applicable fiscal year with the applicable Canadian Securities Commissions pursuant to National Instrument 51-102 – Continuous Disclosure ObligationsSEC;
(b) within 45 as soon as available, but no later than the later of (i) forty-five (45) days after the end of each of the first three quarters following completion of each fiscal year of Realquarter (other than the fourth fiscal quarter) and (ii) the applicable filing deadlines under SEC rules, (i) an unaudited, the consolidated balance sheet of Real the Corporation and its Subsidiaries as of at the end of such fiscal quarter and (ii) the consolidated statements of income, comprehensive income and cash flows and changes in stockholders' equity for such quarter and the portion of Real the fiscal year then ended of the Corporation and its Subsidiaries Subsidiaries, setting forth in each case the figures for such the corresponding periods of the previous fiscal quarter, all prepared year in accordance with IFRScomparative form; provided that this requirement shall be deemed to have been satisfied if if, on or prior to such date Real date, the Corporation files its interim financial quarterly report on Form 10-Q for the applicable fiscal quarter with the applicable Canadian Securities Commissions pursuant to National Instrument 51-102 – Continuous Disclosure ObligationsSEC; and
(c) within ninety (i90) access to and consultation with appropriate officers, directors and management personnel days after the end of Real and its Subsidiaries at such times as reasonably requested by the Investors, in such manner as not to interfere unreasonably with the conduct of business of Real and its Subsidiaries, for consultation with the Investors with respect to matters relating to the business and affairs of the Issuer, and (ii) in connection with same, Real will furnish Investors with copies of any business plans, monthly financial reports, quarterly management reports, formal presentations to the Board, material documents provided to lenders of Real and such other financial and operating data and other information pertaining to Real; provided that in the case of (ii)each fiscal year, such reports and information shall only be provided to the Investors to the extent they have been prepared by Real and made available to the Board and the lenders of Real, as applicable.
(2) Promptly after the determination of Real’s annual budget for each calendar year, Real shall promptly notify the Investors in writing of the aggregate annual budgeted recurring capital expenditure of Real and its Subsidiaries.
(3) Notwithstanding the foregoing, Real shall not be obligated to provide such access or materials set forth in this Section 4.6 if Real, acting in good faith, determines, in its reasonable judgment based on the advice of outside counsel of international standing, that doing so would (x) materially violate applicable securities Laws, (y) jeopardize the protection of an attorney-client privilege or attorney work product protection that could reasonably relate to the information or documents in question, or (z) expose Real to liability for disclosure of personal information; provided that, in the case of each of clauses (x) through (z), Real shall immediately disclose as much information as possible, and provide the Investors with redacted, substitute or aggregated and/or anonymized documents or information in the most permissive manner that would not result in, as applicable, Real violating the applicable Law in question, losing the ability to assert attorney-client privilege or attorney work product protection or exposing Real to the aforementioned liability.
(4) Each party hereto acknowledges and agrees that the Investor Nominee may share any information concerning Real and its Subsidiaries received by him or her from or on behalf of Real or its designated representatives with the Investors and their Representatives (other than any Persons that are Representatives solely by virtue of being actual or potential sources of debt or equity financing) (subject to the obligation of the Investors and their Representatives to maintain the confidentiality of Confidential Information in accordance with Section 4.5).
(5) Real and the Issuer shall, as the Investors may Corporation then-has which is reasonably request from time to time, provide to the Investors, pursuant to a management rights letter, such management rights as may be necessary for the Investors’ investment in Real and the Issuer to continue to qualify as a “venture capital investment” for purposes preparation of 29 C.F.R. § 2510.3-101Sanken’s income tax returns (whether federal, state or foreign).
Appears in 1 contract
Samples: Stockholders Agreement (Allegro Microsystems, Inc.)
Information Rights. (1a) In order connection with the rights granted to facilitate and the obligations incurred by Cosi set forth in this Agreement, HoldCo hereby agrees to comply and to cause the Subsidiary to comply with the covenants set forth in this Section 9 until such time that any Closing is completed in accordance with Section 4.
(b) HoldCo and the Subsidiary shall at all times (i) the Investors’ maintain books and their Affiliates’ compliance records of account in which full and complete entries shall be made of all business transactions pursuant to a system of accounting established and administered in accordance with legal generally accepted accounting principles consistently applied, and regulatory requirements applicable to the beneficial ownership by the Investors set aside on its respective books all such proper accruals and their Affiliates of equity securities of Realreserves as shall be required under generally accepted accounting principles consistently applied, and (ii) the provision by the Investors and their Affiliates’ properly maintain records of financial and other strategic advice to the business and affairs its limited liability company affairs, including, without limitation, a minute book or similar record containing a complete summary of Real and all meetings of members and/or managers since its Subsidiaries and the taking time of such other actions for the benefit of Real and its Subsidiaries in the “necessary course of business” in accordance with the interpretive guidance set out in NP 51-201, for so long as the Investors or their Affiliates hold any of the Purchased Securities, Real agrees promptly to provide the Investors with the following:formation.
(ac) within 120 days As soon as practicable after the end of each fiscal year of Realyear, and in any event within ninety (i90) an auditeddays thereafter, HoldCo shall furnish to Cosi a consolidated balance sheet of Real each of HoldCo and its Subsidiaries the Subsidiary, as of the end of such fiscal year (and (ii) auditedthe prior fiscal year), and a consolidated statements statement of income, comprehensive income, a consolidated statement of cash flows and changes in shareholdersa statement of stockholders’ equity of Real each of HoldCo and its Subsidiaries the Subsidiary, for such year (and the prior fiscal year, all such financial statements audited and certified by independent public accountants of recognized standing; provided that this requirement shall be deemed to have been satisfied if on or prior to such date Real files its audited annual financial statements with the applicable Canadian Securities Commissions pursuant to National Instrument 51-102 – Continuous Disclosure Obligations;
(b) within 45 days after the end of each of the first three quarters of each fiscal year of Real, (i) an unaudited, consolidated balance sheet of Real and its Subsidiaries as of the end of such fiscal quarter and (ii) consolidated statements of income, comprehensive income and cash flows of Real and its Subsidiaries for such fiscal quarter), all prepared in accordance with IFRS; provided that this requirement generally accepted accounting principles consistently applied and setting forth in each case, in comparative form, the figures for the previous fiscal year, all in reasonable detail. Such financial statements shall be deemed accompanied by a report and opinion thereon by independent certified public accountants of national or regional standing selected by HoldCo and acceptable to have been satisfied if on Cosi.
(d) HoldCo and the Subsidiary shall furnish to Cosi, as soon as practicable after the end of each fiscal quarter, and in any event within thirty (30) days thereafter, a consolidated balance sheet of each of HoldCo and the Subsidiary as of the end of each such quarter (and the same quarter in the prior fiscal year), and a consolidated statement of income, a consolidated statement of cash flows and a statement of stockholders’ equity of each of HoldCo and the Subsidiary for such quarter (and the same quarter in the prior fiscal year) and for the current fiscal year to date, prepared in accordance with generally accepted accounting principles consistently applied and setting forth in each case, in comparative form, the corresponding figures for the corresponding period of the preceding fiscal year, all in reasonable detail.
(e) HoldCo and the Subsidiary shall furnish to Cosi, as soon as practicable after the end of each month, and in any event within twenty (20) days thereafter, the standard unaudited monthly financial statements of each of HoldCo and the Subsidiary, as of the end of the just completed month (consisting of at least a balance sheet, income statement and cash flow statement for the current period) or prior information showing actual monthly revenues, expenses, and cash output and balance of each of HoldCo and the Subsidiary versus budgeted revenues, expenses, and cash flow with balance.
(f) HoldCo and the Subsidiary shall furnish the following to Cosi:
(i) promptly upon receipt or publication thereof, any written reports submitted to either HoldCo or the Subsidiary by independent public accountants in connection with an annual or interim audit of the books of either HoldCo or the Subsidiary made by such accountants, and written reports prepared by either HoldCo or the Subsidiary to comply with any other investment or loan agreement;
(ii) promptly after the commencement thereof, notice of all actions, suits, litigation proceedings and other proceedings pending or, to the knowledge of HoldCo, threatened against either HoldCo or the Subsidiary affecting any of their respective material properties or assets, or against any officer, director, employee of either HoldCo or the Subsidiary relating to such date Real files its interim person’s performance of his or her duties or otherwise relating to the business of either HoldCo or the Subsidiary;
(iii) promptly upon sending, making available, or filing the same, such reports and financial report with statements as the applicable Canadian Securities Commissions pursuant HoldCo or the Subsidiary shall send or make available to National Instrument 51-102 – Continuous Disclosure Obligationsthe members or managers of either HoldCo or the Subsidiary; and
(civ) (i) access to and consultation with appropriate officers, directors and management personnel of Real and its Subsidiaries at such times as reasonably requested by the Investors, in such manner as not to interfere unreasonably with the conduct of business of Real and its Subsidiaries, for consultation with the Investors with respect to matters relating to the business and affairs of the Issuer, and (ii) in connection with same, Real will furnish Investors with copies of any business plans, monthly financial reports, quarterly management reports, formal presentations to the Board, material documents provided to lenders of Real and such other information respecting the business, properties or the condition or operations, financial and operating data and other information pertaining or other, of either HoldCo or the Subsidiary as Cosi may from time to Real; provided that in the case of (ii), such reports and information shall only be provided to the Investors to the extent they have been prepared by Real and made available to the Board and the lenders of Real, as applicabletime reasonably request.
(2v) Promptly after HoldCo shall permit Cosi, at Cosi’s expense and upon Cosi’s reasonable request, to visit and inspect the determination properties, examine the books of Real’s annual budget for account and records, and discuss the affairs, finances, and accounts of each calendar yearof HoldCo and the Subsidiary with the officers, Real managers and employees of HoldCo and/or the Subsidiary, as the case may be, during normal business hours; provided, however, that no person shall promptly notify the Investors in writing of the aggregate annual budgeted recurring capital expenditure of Real and its Subsidiaries.
(3) Notwithstanding the foregoing, Real shall not be obligated pursuant to this Section 9(f) to provide such access to any information that HoldCo or materials set forth in this Section 4.6 if Realthe Subsidiary reasonably considers to be a trade secret or confidential information HoldCo or the Subsidiary and which is not confidential or proprietary information of or trade secrets owned by Cosi, acting in good faithor data or other information deemed to be owned by Cosi, determines, in its reasonable judgment based on under the advice Franchise Agreements (unless covered by an enforceable confidentiality agreement) or the disclosure of outside counsel of international standing, that doing so which would (x) materially violate applicable securities Laws, (y) jeopardize adversely affect the protection of an attorney-client privilege between any holder of equity securities of HoldCo, HoldCo or attorney work product protection that could reasonably relate to the information or documents in question, or (z) expose Real to liability for disclosure of personal information; provided that, in the case of each of clauses (x) through (z), Real shall immediately disclose as much information as possible, and provide the Investors with redacted, substitute or aggregated and/or anonymized documents or information in the most permissive manner that would not result in, as applicable, Real violating the applicable Law in question, losing the ability to assert attorney-client privilege or attorney work product protection or exposing Real to the aforementioned liability.
(4) Each party hereto acknowledges and agrees that the Investor Nominee may share any information concerning Real Subsidiary and its Subsidiaries received by him or her from or on behalf of Real or its designated representatives with the Investors and their Representatives (other than any Persons that are Representatives solely by virtue of being actual or potential sources of debt or equity financing) (subject to the obligation of the Investors and their Representatives to maintain the confidentiality of Confidential Information in accordance with Section 4.5)counsel.
(5) Real and the Issuer shall, as the Investors may reasonably request from time to time, provide to the Investors, pursuant to a management rights letter, such management rights as may be necessary for the Investors’ investment in Real and the Issuer to continue to qualify as a “venture capital investment” for purposes of 29 C.F.R. § 2510.3-101.
Appears in 1 contract
Samples: Merger Agreement (Cosi Inc)
Information Rights. (1) In order to facilitate (i) the Investors’ and their Affiliates’ compliance with legal and regulatory requirements applicable to the beneficial ownership by the Investors and their Affiliates of So long as any Sponsor holds any equity securities of Realin SciQuest Holdings, and (ii) the provision by the Investors and their Affiliates’ of financial and other strategic advice SciQuest Holdings will deliver to the business and affairs of Real and its Subsidiaries and the taking of each such other actions for the benefit of Real and its Subsidiaries in the “necessary course of business” in accordance with the interpretive guidance set out in NP 51-201, for so long as the Investors or their Affiliates hold any of the Purchased Securities, Real agrees promptly to provide the Investors with the followingSponsor:
(a) As soon as practicable and in any event within 120 days after the end of each fiscal year of Real, (i) an audited, consolidated balance sheet of Real and its Subsidiaries as of the end of such fiscal year and (ii) audited, consolidated statements of income, comprehensive income, cash flows and changes in shareholders’ equity of Real and its Subsidiaries for such fiscal year, all such financial statements audited and certified by independent public accountants of recognized standing; provided that this requirement shall be deemed to have been satisfied if on or prior to such date Real files its audited annual financial statements with the applicable Canadian Securities Commissions pursuant to National Instrument 51-102 – Continuous Disclosure Obligations;
(b) within 45 60 days after the end of each of the first three fiscal quarters of each in any fiscal year of RealSciQuest Holdings, (i) an unaudited, consolidated consolidating balance sheet sheets of Real SciQuest Holdings and its Subsidiaries as of at the end of such fiscal quarter period and (ii) consolidated the related consolidating statements of income, comprehensive income stockholders’ equity and cash flows flow of Real SciQuest Holdings and its Subsidiaries for such fiscal quarter, setting forth in each case in comparative form the consolidated figures for the corresponding periods of the previous fiscal year, all prepared in reasonable detail, subject to normal quarter-end adjustments;
(b) As soon as practicable and in any event within 180 days after the end of each fiscal year of SciQuest Holdings commencing with the fiscal year ending December 31, 2004, consolidating balance sheets of SciQuest Holdings and its Subsidiaries as at the end of such fiscal year and the related consolidating statements of income, stockholders’ equity and cash flow of SciQuest Holdings and its Subsidiaries for such fiscal year, setting forth in each case, in comparative form, the consolidated figures for the previous year, all in reasonable detail, subject to normal adjustments, and accompanied by a report thereon of independent certified public accountants of recognized national standing satisfactory to the Board, which report will be unqualified as to going concern and scope of audit and will state that such consolidated financial statements present fairly and accurately the financial position of SciQuest Holdings and its Subsidiaries as at the dates indicated and the results of their operations and changes in their financial position for the periods indicated in conformity with generally accepted accounting principles applied on a basis consistent with prior years (except as otherwise stated therein) and that the examination by such accountants in connection with such consolidating financial statements has been made in accordance with IFRS; provided that this requirement shall be deemed to have been satisfied if on or prior to such date Real files its interim financial report with the applicable Canadian Securities Commissions pursuant to National Instrument 51-102 – Continuous Disclosure Obligations; andgenerally accepted auditing standards;
(c) As soon as practicable and in any event no later than 30 days after the end of each fiscal month of SciQuest Holdings, consolidated (ior consolidating, if available) access to and consultation with appropriate officers, directors and management personnel balance sheets of Real SciQuest Holdings and its Subsidiaries as at the end of such times as reasonably requested by month and the Investorsrelated consolidated (or consolidating, in such manner as not to interfere unreasonably with the conduct if available) statements of business income, stockholders’ equity and cash flow of Real SciQuest Holdings and its SubsidiariesSubsidiaries for such fiscal quarter, setting forth in each case in comparative form the consolidated figures for consultation with the Investors with respect corresponding periods of the previous fiscal year, all in reasonable detail, subject to matters relating normal month-end adjustments;
(d) Promptly upon receipt thereof, copies of all reports submitted to SciQuest Holdings by independent public accountants of recognized national standing satisfactory to the business and affairs of the Issuer, and (ii) Board in connection with sameeach annual, Real will furnish Investors interim or special audit of SciQuest Holdings’ financial statements made by such accountant, including, without limitation, the comment letter submitted by such accountants to management in connection with their annual audit; and,
(e) Promptly upon their becoming available, copies of all annual budgets, business plans and any business plans, monthly financial reports, quarterly management reports, formal presentations to the Board, material documents provided to lenders of Real and such other financial all written communication with auditors or advisors for SciQuest Holdings and operating data and other information pertaining to Real; provided that in the case of (ii), such reports and information shall only be provided to the Investors to the extent they have been prepared its Subsidiaries requested by Real and made available to the Board and the lenders of Reala Sponsor, as applicable.
(2) Promptly after the determination of Real’s annual budget for each calendar year, Real shall promptly notify the Investors in writing of the aggregate annual budgeted recurring capital expenditure of Real and its Subsidiaries.
(3) Notwithstanding the foregoing, Real shall not be obligated to provide such access or materials set forth in this Section 4.6 if Real, acting in good faith, determines, in its reasonable judgment based on the advice of outside counsel of international standing, that doing so would (x) materially violate applicable securities Laws, (y) jeopardize the protection of an attorney-client privilege or attorney work product protection that could reasonably relate to the information or documents in question, or (z) expose Real to liability for disclosure of personal information; provided that, in the case of each of clauses (x) through (z), Real shall immediately disclose as much information as possible, and provide the Investors with redacted, substitute or aggregated and/or anonymized documents or information in the most permissive manner that would not result in, as applicable, Real violating the applicable Law in question, losing the ability to assert attorney-client privilege or attorney work product protection or exposing Real to the aforementioned liability.
(4) Each party hereto acknowledges and agrees that the Investor Nominee may share any information concerning Real and its Subsidiaries received by him or her from or on behalf of Real or its designated representatives with the Investors and their Representatives (other than any Persons that are Representatives solely by virtue of being actual or potential sources of debt or equity financing) (subject to the obligation of the Investors and their Representatives to maintain the confidentiality of Confidential Information in accordance with Section 4.5).
(5) Real and the Issuer shall, as the Investors may reasonably request from time to time, provide to the Investors, pursuant to a management rights letter, such management rights as may be necessary for the Investors’ investment in Real and the Issuer to continue to qualify as a “venture capital investment” for purposes of 29 C.F.R. § 2510.3-101.
Appears in 1 contract
Samples: Shareholder Agreement (Sciquest Inc)
Information Rights. (1) In order to facilitate (ia) the Investors’ PSP Fund's and their Affiliates’ the Investor's compliance with legal and regulatory requirements applicable to the beneficial ownership by the Investors Investor and their its Affiliates of equity securities of Realthe Company, and (iib) oversight of the provision by the Investors and their Affiliates’ of financial and other strategic advice to the business and affairs of Real and its Subsidiaries PSP Fund's and the taking of such other actions for the benefit of Real and its Subsidiaries Investor's investment in the “necessary course of business” in accordance with the interpretive guidance set out in NP 51-201Company, for so long as the Investors or their Affiliates hold any of 10% Beneficial Holding Requirement continues to be satisfied, the Purchased Securities, Real Company agrees promptly to provide the Investors PSP Fund with the following:
: (ai) within 120 90 days after the end of each fiscal year of Realthe Company, (iA) an audited, consolidated balance sheet of Real the Company and its Subsidiaries as of the end of such fiscal year and (iiB) audited, consolidated statements of incomeincome (with comparison to prior year and, commencing in the calendar year 2021, budget), reconciliation of net income to adjusted EBITDA, comprehensive income, cash flows and changes in shareholders’ ' equity of Real the Company and its Subsidiaries for such fiscal year, all such financial statements audited and certified by independent public accountants of recognized standing; provided that this requirement shall be deemed to have been satisfied if on or prior to such date Real the Company files its audited annual financial statements report on Form 10-K for the applicable fiscal year with the applicable Canadian Securities Commissions pursuant to National Instrument 51-102 – Continuous Disclosure Obligations;
SEC; (bii) within 45 days after the end of each of the first three quarters of each fiscal year of Realthe Company, (iA) an unaudited, consolidated balance sheet of Real the Company and its Subsidiaries as of the end of such fiscal quarter and (iiB) consolidated statements of incomeincome (with comparison to prior year and, commencing in the calendar year 2021, budget), reconciliation of net income to adjusted EBITDA, comprehensive income and cash flows of Real the Company and its Subsidiaries for such fiscal quarter, all prepared in accordance with IFRS; provided that this requirement shall be deemed to have been satisfied if on or prior to such date Real the Company files its interim financial quarterly report on Form 10-Q for the applicable fiscal quarter with the applicable Canadian Securities Commissions pursuant SEC; (iii) within 15 Business Days after the end of each month, consolidated statements of pre-Tax income, adjusted EBITDA and capital expenditures (in each case, with a comparison to National Instrument 51-102 – Continuous Disclosure Obligations; prior year and
(c) (i) access to and consultation with appropriate officers, directors and management personnel commencing in 2021, budget), of Real the Company and its Subsidiaries at for such times as reasonably requested by month; (iv) within 45 days after the Investorsend of each fiscal quarter, in a quarterly reforecast budget (which will include detail on capital expenditures for such manner as not to interfere unreasonably with the conduct of business of Real and its Subsidiaries, for consultation with the Investors with respect to matters relating to the business and affairs of the Issuer, and quarter); (iiv) in connection with same, Real will furnish Investors with copies of any all material, substantive materials (which may include monthly financial information, budget and business plans, monthly financial reports, quarterly management reports, formal presentations to the Board, material documents provided to lenders of Real and such other financial and operating data and other information pertaining creditors, among others) provided to Realthe Board at substantially the same time as provided to the Board; provided that in the case of (ii), such reports and information shall only be provided to the Investors to the extent they have been prepared by Real and made available to the Board and the lenders of Real, as applicable.
(2) Promptly after the determination of Real’s annual budget for each calendar year, Real shall promptly notify the Investors in writing of the aggregate annual budgeted recurring capital expenditure of Real and its Subsidiaries.
(3) Notwithstanding the foregoing, Real Company shall not be obligated to provide such access or materials set forth in this Section 4.6 5.20 if Real, acting in good faith, the Company determines, in its reasonable judgment based on the advice of outside counsel of international standingjudgment, that doing so would could (w) result in the disclosure of trade secrets or competitively sensitive information to third parties, (x) materially violate applicable securities LawsLaw, (y) jeopardize the protection of an attorney-client privilege or privilege, attorney work product protection that could reasonably relate to the information or documents in questionother legal privilege, or (z) expose Real the Company to risk of liability for disclosure of personal information; provided that, in and (vi) the case of each of clauses (xinformation set forth on Section 5.20(v) through (z), Real shall immediately disclose as much information as possible, and provide the Investors with redacted, substitute or aggregated and/or anonymized documents or information in the most permissive manner that would not result in, as applicable, Real violating the applicable Law in question, losing the ability to assert attorney-client privilege or attorney work product protection or exposing Real to the aforementioned liability.
(4) Each party hereto acknowledges and agrees that the Investor Nominee may share any information concerning Real and its Subsidiaries received by him or her from or on behalf of Real or its designated representatives with the Investors and their Representatives (other than any Persons that are Representatives solely by virtue of being actual or potential sources of debt or equity financing) (subject to the obligation of the Investors and their Representatives to maintain the confidentiality of Confidential Information in accordance with Section 4.5)Company Disclosure Letter.
(5) Real and the Issuer shall, as the Investors may reasonably request from time to time, provide to the Investors, pursuant to a management rights letter, such management rights as may be necessary for the Investors’ investment in Real and the Issuer to continue to qualify as a “venture capital investment” for purposes of 29 C.F.R. § 2510.3-101.
Appears in 1 contract
Information Rights. (1) In order to facilitate (i) the InvestorsApax Funds’ and their Affiliates’ the Investor’s compliance with legal and regulatory requirements applicable to the beneficial ownership by the Investors Investor and their its Affiliates of equity securities of Realthe Company, and (ii) oversight of the provision by the Investors and their AffiliatesApax Funds’ of financial and other strategic advice to the business and affairs of Real and its Subsidiaries and the taking of such other actions for the benefit of Real and its Subsidiaries Investor’s investment in the “necessary course of business” in accordance with the interpretive guidance set out in NP 51-201Company, for so long as the Investors or their Affiliates hold any of 331⁄3% Beneficial Holding Requirement is satisfied by the Purchased SecuritiesInvestor Parties, Real the Company agrees promptly to provide the Investors Apax Funds with the following:
: (a) within 120 90 days after the end of each fiscal year of Realthe Company, (i) an audited, consolidated balance sheet of Real the Company and its Subsidiaries as of the end of such fiscal year and (ii) audited, consolidated statements of income, comprehensive income, cash flows and changes in shareholders’ equity of Real the Company and its Subsidiaries for such fiscal year, all such financial statements audited and certified by independent public accountants of recognized standing; provided that this requirement shall be deemed to have been satisfied if on or prior to such date Real the Company files its audited annual financial statements report on Form 10-K for the applicable fiscal year with the applicable Canadian Securities Commissions pursuant to National Instrument 51-102 – Continuous Disclosure Obligations;
SEC; (b) within 45 days after the end of each of the first three quarters of each fiscal year of Realthe Company, (i) an unaudited, consolidated balance sheet of Real the Company and its Subsidiaries as of the end of such fiscal quarter and (ii) consolidated statements of income, comprehensive income and cash flows of Real the Company and its Subsidiaries for such fiscal quarter, all prepared in accordance with IFRS; provided that this requirement shall be deemed to have been satisfied if on or prior to such date Real the Company files its interim financial quarterly report on Form 10-Q for the applicable fiscal quarter with the applicable Canadian Securities Commissions pursuant to National Instrument 51-102 – Continuous Disclosure ObligationsSEC; and
and (c) (i) access to and consultation with appropriate officers, directors and management personnel of Real and its Subsidiaries at such times as reasonably requested by the Investors, in such manner as not to interfere unreasonably with the conduct of business of Real and its Subsidiaries, for consultation with the Investors with respect to matters relating to the business and affairs of the Issuer, and (ii) in connection with same, Real will furnish Investors with copies of any all material, substantive materials (which may include monthly financial information, budget and business plans, monthly financial reports, quarterly management reports, formal presentations to the Board, material documents provided to lenders of Real and such other financial and operating data and other information pertaining creditors, among others) provided to Realthe Board at substantially the same time as provided to the Board; provided that in the case of (ii), such reports and information shall only be provided to the Investors to the extent they have been prepared by Real and made available to the Board and the lenders of Real, as applicable.
(2) Promptly after the determination of Real’s annual budget for each calendar year, Real shall promptly notify the Investors in writing of the aggregate annual budgeted recurring capital expenditure of Real and its Subsidiaries.
(3) Notwithstanding the foregoing, Real Company shall not be obligated to provide such access or materials set forth in this Section 4.6 5.17 if Real, acting in good faith, the Company determines, in its reasonable judgment based on the advice of outside counsel of international standingjudgment, that doing so would could (w) result in the disclosure of trade secrets or competitively sensitive information to third parties, (x) materially violate applicable securities LawsLaw, (y) jeopardize the protection of an attorney-client privilege or privilege, attorney work product protection that could reasonably relate to the information or documents in questionother legal privilege, or (z) expose Real the Company to risk of liability for disclosure of personal information; provided that, in the case of each of clauses (x) through (z), Real shall immediately disclose as much information as possible, and provide the Investors with redacted, substitute or aggregated and/or anonymized documents or information in the most permissive manner that would not result in, as applicable, Real violating the applicable Law in question, losing the ability to assert attorney-client privilege or attorney work product protection or exposing Real to the aforementioned liability.
(4) Each party hereto acknowledges and agrees that the Investor Nominee may share any information concerning Real and its Subsidiaries received by him or her from or on behalf of Real or its designated representatives with the Investors and their Representatives (other than any Persons that are Representatives solely by virtue of being actual or potential sources of debt or equity financing) (subject to the obligation of the Investors and their Representatives to maintain the confidentiality of Confidential Information in accordance with Section 4.5).
(5) Real and the Issuer shall, as the Investors may reasonably request from time to time, provide to the Investors, pursuant to a management rights letter, such management rights as may be necessary for the Investors’ investment in Real and the Issuer to continue to qualify as a “venture capital investment” for purposes of 29 C.F.R. § 2510.3-101.
Appears in 1 contract
Information Rights. (1) In order The Company will furnish to facilitate (i) the Investors’ and their Affiliates’ compliance with legal and regulatory requirements applicable to the beneficial ownership by the Investors and their Affiliates of equity securities of Real, and (ii) the provision by the Investors and their Affiliates’ of financial and other strategic advice to the business and affairs of Real and its Subsidiaries and the taking of such other actions for the benefit of Real and its Subsidiaries in the “necessary course of business” in accordance with the interpretive guidance set out in NP 51-201, for so long as the Investors or their Affiliates hold any of the Purchased Securities, Real agrees promptly to provide the Investors with the followingeach Significant Holder:
(a) within 120 90 days after the end of each fiscal year of Realthe Company, (i) an audited, its audited consolidated balance sheet and related statements of Real operations, stockholders' equity and its Subsidiaries cash flows as of the end of such fiscal year and (ii) audited, consolidated statements of income, comprehensive income, cash flows and changes in shareholders’ equity of Real and its Subsidiaries for such year, setting forth in each case in comparative form the figures for the previous fiscal year, all such financial statements audited and certified reported on by Arthxx Xxxexxxx XXX or other independent public accountants of recognized standing; provided national standing (without a "going concern" or like qualification or exception and without any qualification or exception as to the scope of such audit other than as to Unrestricted Subsidiaries (as defined in the Credit Agreement)) to the effect that this requirement shall be deemed to have been satisfied if on or prior to such date Real files its audited annual consolidated financial statements present fairly in all material respects the financial condition and results of operations of the Company and its consolidated Subsidiaries on a consolidated basis in accordance with the applicable Canadian Securities Commissions pursuant to National Instrument 51-102 – Continuous Disclosure ObligationsGAAP consistently applied;
(b) within 45 days after the end of each of the first three fiscal quarters of each fiscal year of Realthe Company, (i) an unaudited, its consolidated balance sheet and related statements of Real operations, stockholders' equity and its Subsidiaries cash flows as of the end of and for such fiscal quarter and (ii) consolidated statements of income, comprehensive income and cash flows of Real and its Subsidiaries for such fiscal quarter, all prepared in accordance with IFRS; provided that this requirement shall be deemed to have been satisfied if on or prior to such date Real files its interim financial report with the applicable Canadian Securities Commissions pursuant to National Instrument 51-102 – Continuous Disclosure Obligations; and
(c) (i) access to and consultation with appropriate officers, directors and management personnel of Real and its Subsidiaries at such times as reasonably requested by the Investors, in such manner as not to interfere unreasonably with the conduct of business of Real and its Subsidiaries, for consultation with the Investors with respect to matters relating to the business and affairs then elapsed portion of the Issuerfiscal year, and (ii) setting forth in connection with same, Real will furnish Investors with copies of any business plans, monthly financial reports, quarterly management reports, formal presentations to each case in comparative form the Board, material documents provided to lenders of Real and such other financial and operating data and other information pertaining to Real; provided that in figures for the case corresponding period or periods of (ii), such reports and information shall only be provided to the Investors to the extent they have been prepared by Real and made available to the Board and the lenders of Real, as applicable.
(2) Promptly after the determination of Real’s annual budget for each calendar year, Real shall promptly notify the Investors in writing of the aggregate annual budgeted recurring capital expenditure of Real and its Subsidiaries.
(3) Notwithstanding the foregoing, Real shall not be obligated to provide such access or materials set forth in this Section 4.6 if Real, acting in good faith, determines, in its reasonable judgment based on the advice of outside counsel of international standing, that doing so would (x) materially violate applicable securities Laws, (y) jeopardize the protection of an attorney-client privilege or attorney work product protection that could reasonably relate to the information or documents in question, or (z) expose Real to liability for disclosure of personal information; provided thator, in the case of each of clauses (x) through (z), Real shall immediately disclose as much information as possible, and provide the Investors with redacted, substitute or aggregated and/or anonymized documents or information in the most permissive manner that would not result inbalance sheet, as applicableof the end of) the previous fiscal year, Real violating all certified by one of its financial officers as presenting fairly in all material respects the applicable Law in question, losing financial condition and results of operations of the ability to assert attorney-client privilege or attorney work product protection or exposing Real to the aforementioned liability.
(4) Each party hereto acknowledges and agrees that the Investor Nominee may share any information concerning Real Company and its consolidated Subsidiaries received by him or her from or on behalf of Real or its designated representatives with the Investors and their Representatives (other than any Persons that are Representatives solely by virtue of being actual or potential sources of debt or equity financing) (subject to the obligation of the Investors and their Representatives to maintain the confidentiality of Confidential Information a consolidated basis in accordance with Section 4.5).GAAP consistently applied, subject to normal year-end audit adjustments and the absence of footnotes;
(5c) Real concurrently with any delivery of financial statements under clause (a) or (b) above, a certificate of a financial officer of the Company (i) certifying as to whether an Event of Non-Compliance (as defined in the Charter) has occurred, or a default or event of default has occurred under the New Notes Indenture or the Credit Agreement and, if an Event of Non-Compliance or a default or event of default has occurred, specifying the details thereof and any action taken or proposed to be taken with respect thereto and (ii) stating whether any change in GAAP or in the Issuer shallapplication thereof has occurred since December 31, as 2000 that has not been otherwise disclosed in a prior certificate and, if any such change has occurred, specifying the Investors may reasonably request from time to time, provide effect of such change on the financial statements accompanying such certificate;
(d) at least 30 days prior to the Investorscommencement of each fiscal year of the Borrower, pursuant a consolidated budget for such fiscal year (in the form provided to the Lenders (as defined in the Credit Agreement), including a management rights letterprojected consolidated balance sheet and related statements of projected operations and cash flow as of the end of and for such fiscal year) and, promptly when available, any significant revisions of such management rights as may be necessary for budget;
(e) promptly after the Investors’ investment in Real same become publicly available, copies of all periodic and other reports, proxy statements and other materials filed by the Issuer to continue to qualify as a “venture capital investment” for purposes of 29 C.F.R. § 2510.3-101.Company or
Appears in 1 contract
Samples: Securities Purchase Agreement (Uniplast Midwest Inc)
Information Rights. (1a) In order MYT Holdco shall deliver to facilitate the Trustees:
(i) the Investors’ and their Affiliates’ compliance with legal and regulatory requirements applicable to the beneficial ownership by the Investors and their Affiliates earlier of equity securities of Real, and (iiA) the provision by the Investors and their Affiliates’ of financial and other strategic advice to the business and affairs of Real and its Subsidiaries and the taking of such other actions for the benefit of Real and its Subsidiaries in the “necessary course of business” in accordance with the interpretive guidance set out in NP 51-201, for so long as the Investors or their Affiliates hold any of the Purchased Securities, Real agrees promptly to provide the Investors with the following:
ninety (a90) within 120 days after the end of each fiscal year of Real, NM Group (ior such longer period as may be provided by the SEC if NM Group were then subject to SEC reporting requirements as a non-accelerated filer) an audited, consolidated balance sheet of Real and its Subsidiaries as of the end of such fiscal year and (iiB) audited, consolidated statements the date NM Group discloses to holders of income, comprehensive income, cash flows and changes in shareholders’ equity of Real and its Subsidiaries for such secured notes earnings information with respect to the corresponding fiscal year, all such financial statements audited and certified by independent public accountants of recognized standing; provided that this requirement shall be deemed to have been satisfied if on or prior to such date Real files its the audited annual financial statements of the MYT Operating Entities for the most recently ended fiscal year of the MYT Operating Entities (which currently ends prior to the corresponding fiscal year of NM Group), prepared in accordance with German GAAP, together with a qualitative or quantitative explanation of the material applicable Canadian Securities Commissions pursuant to National Instrument 51-102 – Continuous Disclosure Obligationsdifferences between German GAAP and GAAP;
(bii) within 45 by the earlier of (A) forty-five (45) days after the end of each of the first three fiscal quarters of each fiscal year of Real, NM Group (ior such longer period as may be provided by the SEC if NM Group were then subject to SEC reporting requirements as a non-accelerated filer) an unaudited, consolidated balance sheet of Real and its Subsidiaries as of the end of such fiscal quarter and (iiB) consolidated statements the date NM Group discloses to holders of income, comprehensive income and cash flows of Real and its Subsidiaries for such secured notes earnings information with respect to the corresponding fiscal quarter, all unaudited quarterly financial statements of the MYT Operating Entities for the fiscal quarter most recently ended of the MYT Operating Entities (which currently ends prior to the corresponding fiscal quarter of NM Group) and, commencing with the MYT Operating Entities’ “fiscal quarter ending in March 2020, the corresponding fiscal quarter of the prior fiscal year, prepared in accordance with IFRSGerman GAAP, together with a qualitative or quantitative explanation of the material applicable differences between German GAAP and GAAP;
(iii) with each set of consolidated financial statements referred to in clauses (ii) and (iii) of this Section 3.03(12)(a) above, a narrative discussion of the key financial information of the MYT Operating Entities consistent with those customarily provided with earnings press releases; and
(iv) within the time period specified for filing current reports on Form 8-K by the SEC as if such items were reportable on a Form 8-K, notice of any (a) issuances of equity interests (including any debt security that is convertible into, or exchangeable for, capital stock of MYT Holdco) by MYT Holdco that are junior to the Series A Preferred Stock, (b) issuances of Indebtedness other than in the ordinary course of business pursuant to the exceptions set forth in Section 3.03(2) above and (c) Permitted Investments.
(b) Notwithstanding the foregoing, the obligations in this Section 3.03(12) may be satisfied with respect to financial information of the MYT Operating Entities by furnishing the applicable financial statements of MYT Holdco or any Subsidiary thereof that is the direct or indirect parent of NMG Germany GmbH; provided that such information is accompanied by consolidating information that explains in reasonable detail the material differences between the information relating to such parent, on the one hand, and the information relating to the MYT Operating Entities on a stand-alone basis, on the other hand; and provided further that such direct or indirect parent of NMG Germany GmbH shall not conduct, transact or otherwise engage in any business or operations other than relating to its direct or indirect ownership of all of the Equity Interests in, and management of, NMG Germany GmbH.
(c) MYT Holdco shall promptly furnish any information reasonably requested by holders or beneficial holders of at least 5% of the outstanding Notes to confirm that MYT Holdco and its subsidiaries are in compliance with the covenants set forth under this requirement Section 3.03.
(d) Documents required to be delivered pursuant to this Section 4.06(12) may be delivered electronically and if so delivered, shall be deemed to have been satisfied if delivered on the date on which (i) (x) such documents become available on the SEC’s Electronic Data Gathering Analysis and Retrieval (“XXXXX”) website or prior (y) NMG Germany GmbH (or any direct or indirect parent of NMG Germany GmbH) posts such documents, or provides a link thereto on its website; or (ii) such documents are posted on NMG Germany GmbH’s behalf on IntraLinks/IntraAgency or another similar non-public, password protected datasite. Notwithstanding the foregoing, no Trustee shall have any obligation to monitor or confirm, on a continuing basis or otherwise, whether MYT Holdco or NMG German GmbH (or any direct or indirect parent of NMG German GmbH) posts such reports, information and documents on any website or the SEC’s XXXXX service, or to collect any such information from MYT Holdco or NMG German GmbH (or any direct or indirect parent of NMG German GmbH) website or the SEC’s XXXXX service.
(e) Any Person seeking access to such date Real files its interim financial report datasite will be required to represent to and agree with the MYT Operating Entities and any such parent (and by accepting such financial information, such Person will be deemed to have so represented and agreed with the MYT Operating Entities and such parent) to the good faith satisfaction of the MYT Operating Entities or such parent that:
(i) it is a holder of a Note or a bona fide prospective investor in the Notes;
(ii) if it is a prospective purchaser of the Notes, it is (a) a “qualified institutional buyer” (as defined in Rule 144A of the Securities Act), (b) a “non U.S. Person” (as defined in Regulation S under the Securities Act) or (c) an institutional “accredited investor” as defined in Rule 501(a)(1), (2), (3) or (7) under the Securities Act;
(iii) it will not use the information in violation of applicable Canadian Securities Commissions pursuant securities laws or regulations;
(iv) it will not communicate the information to National Instrument 51-102 – Continuous Disclosure Obligationsany Person and will keep the information confidential;
(v) it will use such information only in connection with evaluating, monitoring or disposing of an investment in the Notes; and
(cvi) it will not use such information in any manner intended to compete with the business of the MYT Operating Entities.
(if) access Delivery of reports, information and documents to and consultation with appropriate officers, directors and management personnel of Real any Trustee is for informational purposes only and its Subsidiaries at receipt of such times as reasonably requested by reports, information and documents shall not constitute constructive notice of any information contained therein or determinable from information contained therein, including MYT Holdco’s, NMG German GmbH’s (or any direct or indirect parent of NMG German GmbH’s) or any other Person’s compliance with any of its covenants under this Agreement or the InvestorsNotes. No Trustee shall have any liability or responsibility for the content, in such manner as not to interfere unreasonably with the conduct filing or timeliness of business of Real and its Subsidiariesany report, for consultation with the Investors with respect to matters relating to the business and affairs of the Issuer, and (ii) information or document delivered or filed under or in connection with same, Real will furnish Investors with copies of any business plans, monthly financial reports, quarterly management reports, formal presentations to the Board, material documents provided to lenders of Real and such other financial and operating data and other information pertaining to Real; provided that in the case of (ii), such reports and information shall only be provided to the Investors to the extent they have been prepared by Real and made available to the Board and the lenders of Real, as applicablethis Agreement.
(2) Promptly after the determination of Real’s annual budget for each calendar year, Real shall promptly notify the Investors in writing of the aggregate annual budgeted recurring capital expenditure of Real and its Subsidiaries.
(3) Notwithstanding the foregoing, Real shall not be obligated to provide such access or materials set forth in this Section 4.6 if Real, acting in good faith, determines, in its reasonable judgment based on the advice of outside counsel of international standing, that doing so would (x) materially violate applicable securities Laws, (y) jeopardize the protection of an attorney-client privilege or attorney work product protection that could reasonably relate to the information or documents in question, or (z) expose Real to liability for disclosure of personal information; provided that, in the case of each of clauses (x) through (z), Real shall immediately disclose as much information as possible, and provide the Investors with redacted, substitute or aggregated and/or anonymized documents or information in the most permissive manner that would not result in, as applicable, Real violating the applicable Law in question, losing the ability to assert attorney-client privilege or attorney work product protection or exposing Real to the aforementioned liability.
(4) Each party hereto acknowledges and agrees that the Investor Nominee may share any information concerning Real and its Subsidiaries received by him or her from or on behalf of Real or its designated representatives with the Investors and their Representatives (other than any Persons that are Representatives solely by virtue of being actual or potential sources of debt or equity financing) (subject to the obligation of the Investors and their Representatives to maintain the confidentiality of Confidential Information in accordance with Section 4.5).
(5) Real and the Issuer shall, as the Investors may reasonably request from time to time, provide to the Investors, pursuant to a management rights letter, such management rights as may be necessary for the Investors’ investment in Real and the Issuer to continue to qualify as a “venture capital investment” for purposes of 29 C.F.R. § 2510.3-101.
Appears in 1 contract
Information Rights. (1) In order The Company will furnish to facilitate (i) the Investors’ and their Affiliates’ compliance with legal and regulatory requirements applicable to the beneficial ownership by the Investors and their Affiliates of equity securities of Real, and (ii) the provision by the Investors and their Affiliates’ of financial and other strategic advice to the business and affairs of Real and its Subsidiaries and the taking of such other actions for the benefit of Real and its Subsidiaries in the “necessary course of business” in accordance with the interpretive guidance set out in NP 51-201, for so long as the Investors or their Affiliates hold any of the Purchased Securities, Real agrees promptly to provide the Investors with the followingeach Purchaser:
(a) within 120 90 days after the end of each fiscal year of Realthe Company, (i) an audited, its audited consolidated balance sheet and related statements of Real operations, stockholders' equity and its Subsidiaries cash flows as of the end of such fiscal year and (ii) audited, consolidated statements of income, comprehensive income, cash flows and changes in shareholders’ equity of Real and its Subsidiaries for such year, setting forth in each case in comparative form the figures for the previous fiscal year, all such financial statements audited and certified reported on by Arthxx Xxxexxxx XXX or other independent public accountants of recognized standing; provided national standing (without a "going concern" or like qualification or exception and without any qualification or exception as to the scope of such audit other than as to Unrestricted Subsidiaries (as defined in the Credit Agreement)) to the effect that this requirement shall be deemed to have been satisfied if on or prior to such date Real files its audited annual consolidated financial statements present fairly in all material respects the financial condition and results of operations of the Company and its consolidated Subsidiaries on a consolidated basis in accordance with the applicable Canadian Securities Commissions pursuant to National Instrument 51-102 – Continuous Disclosure ObligationsGAAP consistently applied;
(b) within 45 days after the end of each of the first three fiscal quarters of each fiscal year of Realthe Company, (i) an unaudited, its consolidated balance sheet and related statements of Real operations, stockholders' equity and its Subsidiaries cash flows as of the end of and for such fiscal quarter and (ii) consolidated statements of income, comprehensive income and cash flows of Real and its Subsidiaries for such fiscal quarter, all prepared in accordance with IFRS; provided that this requirement shall be deemed to have been satisfied if on or prior to such date Real files its interim financial report with the applicable Canadian Securities Commissions pursuant to National Instrument 51-102 – Continuous Disclosure Obligations; and
(c) (i) access to and consultation with appropriate officers, directors and management personnel of Real and its Subsidiaries at such times as reasonably requested by the Investors, in such manner as not to interfere unreasonably with the conduct of business of Real and its Subsidiaries, for consultation with the Investors with respect to matters relating to the business and affairs then elapsed portion of the Issuerfiscal year, and (ii) setting forth in connection with same, Real will furnish Investors with copies of any business plans, monthly financial reports, quarterly management reports, formal presentations to each case in comparative form the Board, material documents provided to lenders of Real and such other financial and operating data and other information pertaining to Real; provided that in figures for the case corresponding period or periods of (ii), such reports and information shall only be provided to the Investors to the extent they have been prepared by Real and made available to the Board and the lenders of Real, as applicable.
(2) Promptly after the determination of Real’s annual budget for each calendar year, Real shall promptly notify the Investors in writing of the aggregate annual budgeted recurring capital expenditure of Real and its Subsidiaries.
(3) Notwithstanding the foregoing, Real shall not be obligated to provide such access or materials set forth in this Section 4.6 if Real, acting in good faith, determines, in its reasonable judgment based on the advice of outside counsel of international standing, that doing so would (x) materially violate applicable securities Laws, (y) jeopardize the protection of an attorney-client privilege or attorney work product protection that could reasonably relate to the information or documents in question, or (z) expose Real to liability for disclosure of personal information; provided thator, in the case of each the balance sheet, as of clauses the end of) the previous fiscal year, all certified by one of its financial officers as presenting fairly in all material respects the financial condition and results of operations of the Company and its consolidated Subsidiaries on a consolidated basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments and the absence of footnotes;
(xc) through concurrently with any delivery of financial statements under clause (z)a) or (b) above, Real shall immediately disclose a certificate of a financial officer of the Company (i) certifying as much information as possibleto whether an Event of Noncompliance has occurred, or a default or event of default has occurred under the New Notes Indenture or the Credit Agreement and, if an Event of Noncompliance or a default or event of default has occurred, specifying the details thereof and provide the Investors any action taken or proposed to be taken with redacted, substitute respect thereto and (ii) stating whether any change in GAAP or aggregated and/or anonymized documents or information in the most permissive manner that would not result inapplication thereof has occurred since the date of the Company's audited financial statements referred to in Section 3.8 and, as applicableif any such change has occurred, Real violating specifying the applicable Law in question, losing effect of such change on the ability to assert attorney-client privilege or attorney work product protection or exposing Real to the aforementioned liabilityfinancial statements accompanying such certificate.
(4d) Each party hereto acknowledges at least 30 days prior to the commencement of each fiscal year of the Borrower, a consolidated budget for such fiscal year (in the form provided to the Lenders (as defined in the Credit Agreement), including a projected consolidated balance sheet and agrees that related statements of projected operations and cash flow as of the Investor Nominee may share end of and for such fiscal year) and, promptly when available, any information concerning Real significant revisions of such budget;
(e) promptly after the same become publicly available, copies of all periodic and its Subsidiaries received other reports, proxy statements and other materials filed by him the Borrower or her from or on behalf of Real or its designated representatives any Subsidiary with the Investors and their Representatives (other than Commission or with any Persons that are Representatives solely by virtue of being actual or potential sources of debt or equity financing) (subject to the obligation of the Investors and their Representatives to maintain the confidentiality of Confidential Information in accordance with Section 4.5).
(5) Real and the Issuer shallnational securities exchange, as the Investors case may be;
(f) promptly following the commencement thereof, notice and description in reasonable detail of any litigation or proceeding to which the Company or any of its Subsidiaries is a party, except for any litigation or proceeding which could not reasonably be expected to result in a Material Adverse Effect;
(g) promptly following the occurrence thereof, notice and a description in reasonable detail of any Material Adverse Effect;
(h) as promptly as practicable (but in any event no earlier than required under the Credit Agreement or New Notes Indenture, as the case may be), notice of any Default (as defined in the Credit Agreement) under the Credit Agreement or an Event of Default (as defined in the New Notes Indenture) under the New Notes Indenture; and
(i) promptly following any request therefor, such other information regarding the operations, business affairs and financial condition of the Company or any Subsidiary, or compliance with the terms of any Document, as or any Purchaser may reasonably request from time to time, provide to the Investors, pursuant to a management rights letter, such management rights as may be necessary for the Investors’ investment in Real and the Issuer to continue to qualify as a “venture capital investment” for purposes of 29 C.F.R. § 2510.3-101request.
Appears in 1 contract
Samples: Securities Purchase Agreement (Huntsman Packaging of Canada LLC)
Information Rights. (1) In order to facilitate (i) the Investors’ and their Affiliates’ compliance with legal and regulatory requirements applicable to the beneficial ownership by the Investors and their Affiliates of equity securities of Real, and (ii) the provision by the Investors and their Affiliates’ of financial and other strategic advice to the business and affairs of Real and its Subsidiaries and the taking of such other actions for the benefit of Real and its Subsidiaries in the “necessary course of business” in accordance with the interpretive guidance set out in NP 51-201, for so So long as the Investors Wafra Participation Buyer owns any Ownership Interests, the Company shall provide or their Affiliates hold any of make available to the Purchased Securities, Real agrees promptly to provide the Investors with Wafra Representative the following:
(ai) as soon as practicable, and in any event within 120 one-hundred twenty (120) days after following the end of each fiscal year Fiscal Year, beginning with the end of Realthe Fiscal Year ending December 31, 2020, the (iA) an audited, consolidated balance sheet audited financial statements of Real the Company and its Subsidiaries for such Fiscal Year, including a balance sheet as of the end of such fiscal year Fiscal Year and the related statements of operations, changes in member’s equity (deficit) and cash flows for such Fiscal Year, prepared in accordance with GAAP and certified by the Company’s independent public accountants (which shall be a firm of nationally recognized independent accountants), consisting of statements of (x) the financial condition of the Company and its Subsidiaries and (iiy) audited, consolidated statements of income, comprehensive income, cash flows and changes in shareholdersmembers’ equity of Real and its Subsidiaries capital for such fiscal yearFiscal Year, all such and (B) the audited financial statements audited of the Digital Colony Funds, if any, including a balance sheet as of the end of such Fiscal Year and the related statements of operations, changes in member’s equity (deficit) and cash flows for such Fiscal Year, prepared in accordance with GAAP, and certified by the Digital Colony Funds’ independent public accountants of recognized standing; provided that this requirement (which shall be deemed to have been satisfied if on or prior to such date Real files its audited annual financial statements with the applicable Canadian Securities Commissions pursuant to National Instrument 51-102 – Continuous Disclosure Obligationsa firm of nationally recognized independent accountants);
(bii) as soon as practicable, and in any event within 45 sixty (60) days after following the end of each of the first three fiscal quarters of each fiscal year Fiscal Year of Realthe Company and its Subsidiaries, (i) an unaudited, the consolidated balance sheet unaudited financial statements of Real the Company and its Subsidiaries for such fiscal quarter, prepared in accordance with GAAP, including a balance sheet as of the end of such fiscal quarter and the related statements of operations, changes in member’s equity (deficit) and cash flows for such fiscal quarter and (ii) consolidated the unaudited financial statements of income, comprehensive income and cash flows of Real and its Subsidiaries each Digital Colony Fund for such fiscal quarter, all prepared in accordance with IFRSGAAP, including a balance sheet as of the end of such fiscal quarter and the related statements of operations, changes in member’s equity (deficit) and cash flows for such fiscal quarter, prepared in accordance with GAAP;
(iii) on a quarterly basis, a summary describing, in reasonable detail, any Related Party Transactions that were entered into, modified or terminated in each such quarter and a true and correct list of each Person who has the right to receive Carried Interest from any Digital Colony Fund, together with the amount and/or percentage of such Carried Interest owned by each such Person, to the extent of any changes from the prior quarter; provided -18- LA_LAN01:362817.14
(iv) on a quarterly basis, a copy of the standard reporting package (including financial statements) made available to the investors in any Digital Colony Fund, at substantially the same time such package is generally distributed to such investors;
(v) on a quarterly basis, copies of investor letters and reports regarding Digital Colony Funds made generally available to investors, at substantially the same time such letters and reports are distributed to such investors;
(vi) no later than thirty (30) days following the end of each Fiscal Year, the Company’s and its Subsidiaries’ good faith estimate of projected exit proceeds from each portfolio investment;
(vii) to the extent not restricted by Law, notice as soon as reasonably practicable if the Digital Colony Companies or any Digital Colony Fund receives a non-routine letter from any U.S. or non-U.S. securities regulatory body, including the SEC, describing its findings from an examination conducted by such regulator that this requirement shall identifies any material deficiencies;
(viii) prompt written notice (and in any event not later than five (5) Business Days) after becoming aware of any action or proceeding or receiving notice of any investigation pending before any court or Governmental Authority, including, without limitation, the SEC or any state securities regulatory authority against the Digital Colony Companies or any of their Controlled Affiliates or senior officers of the Digital Colony Companies that claim or allege (x) any violation of any federal or state securities law, rule or regulation, or (y) any breach of fiduciary duties, in each case that would reasonably be deemed expected to have been satisfied if an adverse effect on the Digital Colony Companies or prior any of the Digital Colony Funds;
(ix) prompt notice of any other material issues that might arise in the Digital Colony Business from time to such date Real files time, including any action or proceeding or receiving formal written notice of any investigation commenced against any partner of the Digital Colony Companies or any of their employees, directors, officers or partners or any Managing Director or Successor, and any other litigation with respect to any partner of the Digital Colony Companies or any of its interim financial report employees, directors, officers or partners or any Managing Director or Successor, in each case that may reasonably be expected to have a material adverse effect on the Digital Colony Companies or any of the Digital Colony Funds;
(x) copies of all materials prepared for the advisory committee of each Digital Colony Fund in which the Wafra Participation Buyers or other Wafra Entity directly or indirectly is an investor, including, for the avoidance of doubt, any Digital Colony Fund in which any Wafra Entity is making, directly or indirectly, any Sponsor Commitment, contemporaneously with the applicable Canadian Securities Commissions pursuant distribution of such materials to National Instrument 51-102 – Continuous Disclosure Obligations; andthe members of such advisory committee;
(cxi) copies of any material legal, operating, compliance, gift, entertainment and other policies and procedures of the Digital Colony Companies, including any material amendments relating thereto;
(ixii) access information reasonably requested by the Wafra Representative in connection with any Wafra Consent, approval or other action required to and consultation be taken by the Wafra Representative or any other Wafra Entity under this Agreement or the Ancillary Agreements, LA_LAN01:362817.14 including information reasonably necessary to confirm compliance with appropriate officers, directors and management personnel of Real and its Subsidiaries at such times the obligations set forth herein or therein;
(xiii) as reasonably requested by the InvestorsWafra Representative, valuation materials regarding the reported net asset value of any of the Digital Colony Funds but only to the extent readily available;
(xiv) to the extent reasonably practicable, position level information regarding any Digital Colony Fund (and underlying portfolio investments) in which the Wafra Participation Buyer or other Wafra Entity is directly or indirectly an investor, including, for the avoidance of doubt, any Digital Colony Fund in which any Wafra Entity is making, directly or indirectly, any Sponsor Commitment, to the extent such manner as not position level information is reasonably requested to interfere unreasonably assist the Wafra Participation Buyer or any of its Affiliates in the monitoring and valuation of the Wafra Entities’ Interests other than material non-public information (unless it is legally permissible to be so provided) with respect to any securities traded on a national securities exchange;
(xv) calculations provided to any lender in connection with the conduct covenants in, and any reports delivered to any lender in accordance with, any credit agreements or credit facility of business the Digital Colony Companies;
(xvi) as reasonably requested by the Wafra Representative, all Fund Documentation for the Digital Colony Funds and side letters pertaining thereto (in each case, including any amendments or changes thereto), except for redacted information to the extent required to comply with applicable confidentiality requirements set forth therein;
(xvii) upon the reasonable request of Real the Wafra Representative and to the extent reasonably practicable, such additional information regarding the status of the Digital Colony Business and its financial performance, the performance of each of the Company’s and its Subsidiaries’ investment products, and legal, regulatory and compliance matters; and
(xviii) without limitation of the information and reports described in this Section 6(a) promptly upon request of the Wafra Representative, the Company and its Subsidiaries will provide the Wafra Representative with (i) copies of all materials provided generally to investors in the Digital Colony Funds and other investment products, including, for consultation with the Investors with respect to matters relating to the business example, investment letters and affairs of the Issuer, client and risk reports and (ii) in connection with same, Real will furnish Investors with copies of any business plans, monthly financial reports, quarterly management reports, formal presentations to the Board, material documents provided to lenders of Real and such other financial and operating data and other information pertaining reasonably necessary to Real; provided that in confirm compliance with the case of (ii), such reports and information shall only be provided to the Investors to the extent they have been prepared by Real and made available to the Board and the lenders of Real, as applicable.
(2) Promptly after the determination of Real’s annual budget for each calendar year, Real shall promptly notify the Investors in writing of the aggregate annual budgeted recurring capital expenditure of Real and its Subsidiaries.
(3) Notwithstanding the foregoing, Real shall not be obligated to provide such access or materials obligations set forth in this Section 4.6 if Real, acting in good faith, determines, in its reasonable judgment based on the advice of outside counsel of international standing, that doing so would (x) materially violate applicable securities Laws, (y) jeopardize the protection of an attorney-client privilege or attorney work product protection that could reasonably relate to the information or documents in question, or (z) expose Real to liability for disclosure of personal information; provided that, in the case of each of clauses (x) through (z), Real shall immediately disclose as much information as possible, and provide the Investors with redacted, substitute or aggregated and/or anonymized documents or information in the most permissive manner that would not result in, as applicable, Real violating the applicable Law in question, losing the ability to assert attorney-client privilege or attorney work product protection or exposing Real to the aforementioned liability.
(4) Each party hereto acknowledges and agrees that the Investor Nominee may share any information concerning Real and its Subsidiaries received by him or her from or on behalf of Real or its designated representatives with the Investors and their Representatives (other than any Persons that are Representatives solely by virtue of being actual or potential sources of debt or equity financing) (subject to the obligation of the Investors and their Representatives to maintain the confidentiality of Confidential Information in accordance with Section 4.5).
(5) Real Agreement and the Issuer shall, as the Investors may reasonably request from time to time, provide to the Investors, pursuant to a management rights letter, such management rights as may be necessary for the Investors’ investment in Real and the Issuer to continue to qualify as a “venture capital investment” for purposes of 29 C.F.R. § 2510.3-101other Ancillary Agreements.
Appears in 1 contract
Samples: Carried Interest Participation Agreement (Colony Capital, Inc.)
Information Rights. (1) In Following the Closing and so long as the 50% Beneficial Ownership Requirement is satisfied, in order to facilitate (i) the Investors’ and their AffiliatesInvestor Parties’ compliance with legal and regulatory requirements applicable to the beneficial ownership by the Investors Investor Parties and their its Affiliates of equity securities of Real, the Company and (ii) the provision by Investor Representative’s oversight of the Investors and their AffiliatesInvestor Parties’ investment in the Company, the Company agrees to provide each of financial and other strategic advice to the business and affairs of Real and its Subsidiaries Investor Parties and the taking of such other actions for the benefit of Real and its Subsidiaries in the “necessary course of business” in accordance with the interpretive guidance set out in NP 51-201, for so long as the Investors or their Affiliates hold any of the Purchased Securities, Real agrees promptly to provide the Investors Investor Representative with the following:
(a) within 120 90 days after the end of each fiscal year of Realthe Company, (iA) an audited, consolidated balance sheet of Real the Company and its Subsidiaries as of the end of such fiscal year, (B) an audited, consolidated income statement of the Company and its Subsidiaries for such fiscal year and (iiC) an audited, consolidated statements statement of income, comprehensive income, cash flows and changes in shareholders’ equity of Real the Company and its Subsidiaries for such fiscal year, all such financial statements audited and certified by independent public accountants of recognized standing; provided that this requirement shall be deemed to have been satisfied if on or prior to such date Real the Company files its audited annual financial statements report on Form 10-K for the applicable fiscal year with the applicable Canadian Securities Commissions pursuant to National Instrument 51-102 – Continuous Disclosure ObligationsSEC;
(b) within 45 days after the end of each of the first three quarters of each fiscal year of Realthe Company, (iA) an unaudited, consolidated balance sheet of Real the Company and its Subsidiaries as of the end of such fiscal quarter, (B) an unaudited, consolidated income statement of the Company and its Subsidiaries for such fiscal quarter and (iiC) an unaudited, consolidated statements statement of income, comprehensive income and cash flows of Real the Company and its Subsidiaries for such fiscal quarter, all prepared in accordance with IFRS; provided that this requirement shall be deemed to have been satisfied if on or prior to such date Real the Company files its interim financial quarterly report on Form 10-Q for the applicable fiscal year with the applicable Canadian Securities Commissions pursuant to National Instrument 51-102 – Continuous Disclosure ObligationsSEC; and
(c) (i) access reasonable access, to and consultation with appropriate officers, directors and management personnel of Real and its Subsidiaries at such times as the extent reasonably requested by the InvestorsInvestor Parties or the Investor Representative, to the offices and the properties of the Company and its Subsidiaries, including its and their books and records, and to discuss its and their affairs, finances and accounts and matters related to capital structure and financing with its and their officers, all upon reasonable notice and at such reasonable times and as often as the Investor Parties and the Investor Representative may reasonably request and the Company and its Subsidiaries shall consider in such good faith any suggestions made by the Investor Parties with respect to the matters discussed, including with respect to the capital structure and financing of the Company and its Subsidiaries; provided that any investigation pursuant to this Section 5.15 shall be conducted in a manner as not to interfere unreasonably with the conduct of the business of Real the Company and its Subsidiaries, for consultation with the Investors with respect to matters relating to the business and affairs of the Issuer, and (ii) in connection with same, Real will furnish Investors with copies of any business plans, monthly financial reports, quarterly management reports, formal presentations to the Board, material documents provided to lenders of Real and such other financial and operating data and other information pertaining to Real; provided that in the case of (ii), such reports and information shall only be provided to the Investors to the extent they have been prepared by Real and made available to the Board and the lenders of Real, as applicable.
(2) Promptly after the determination of Real’s annual budget for each calendar year, Real shall promptly notify the Investors in writing of the aggregate annual budgeted recurring capital expenditure of Real and its Subsidiaries.
(3) Notwithstanding the foregoing, Real Company shall not be obligated to provide such access or materials set forth in this Section 4.6 if Real, acting in good faith, the Company determines, in its reasonable judgment based on the advice of outside counsel of international standingjudgment, that doing so would reasonably be expected to (xi) materially result in the disclosure of trade secrets or competitively sensitive information to third parties, (ii) violate applicable securities LawsLaw, an applicable Judgment or a Contract or obligation of confidentiality owing to a third party, (yiii) jeopardize the protection of an attorney-client privilege or privilege, attorney work product protection or other legal privilege (provided, however, that could reasonably relate the Company shall use reasonable efforts to provide alternative, redacted or substitute documents or information in a manner that would not result in the information loss of the ability to assert attorney-client privilege, attorney work product protection or documents in questionother legal privileges), or (ziv) expose Real the Company to risk of liability for disclosure of personal information; provided that, in that the case of each of clauses (x) through (z), Real parties shall immediately use their commercially reasonable efforts to disclose as much information as possible, and provide the Investors with redacted, substitute or aggregated and/or anonymized documents or such information in the most permissive a manner that would not result inviolate the foregoing. In addition, as applicable, Real violating the applicable Law in question, losing the ability to assert attorney-client privilege or attorney work product protection or exposing Real notwithstanding anything to the aforementioned liability.
(4) Each party hereto acknowledges contrary contained herein, neither the Company nor any of its Subsidiaries will be required to provide any information or material that relates to, contains or reflects any analyses, studies, notes, memoranda and agrees that other information related to or prepared in connection with any Transaction Document or the Transactions or any matters relating thereto or any transactions with or matters relating to the Investor Nominee may share Parties or any information concerning Real and its Subsidiaries received by him or her from or on behalf of Real or its designated representatives with the Investors and their Representatives (other than any Persons that are Representatives solely by virtue of being actual or potential sources of debt or equity financing) (subject to the obligation Affiliates of the Investors and their Representatives to maintain the confidentiality of Confidential Information in accordance with Section 4.5)Investor.
(5) Real and the Issuer shall, as the Investors may reasonably request from time to time, provide to the Investors, pursuant to a management rights letter, such management rights as may be necessary for the Investors’ investment in Real and the Issuer to continue to qualify as a “venture capital investment” for purposes of 29 C.F.R. § 2510.3-101.
Appears in 1 contract
Samples: Investment Agreement (Coty Inc.)
Information Rights. (1) In From and after the Closing and until the Fall-Away of Investor Rights, in order to facilitate (i) the Investors’ and their Affiliates’ Investor Parties’s compliance with legal and regulatory requirements applicable to the beneficial ownership by the Investors Investor Parties and their its Affiliates of equity securities of Realthe Company, and (ii) the provision by the Investors and their Affiliates’ of financial and other strategic advice Company shall provide to the business and affairs of Real and its Subsidiaries and the taking of such other actions for the benefit of Real and its Subsidiaries in the “necessary course of business” in accordance with the interpretive guidance set out in NP 51-201, for so long as the Investors or their Affiliates hold any of the Purchased Securities, Real agrees promptly to provide the Investors with the followingInvestor Parties:
(ai) within 120 ninety (90) days after the end of each fiscal year of Realthe Company, (iA) an audited, consolidated balance sheet of Real the Company and its Subsidiaries as of the end of such fiscal year, (B) an audited, consolidated income statement of the Company and its Subsidiaries for such fiscal year and (iiC) an audited, consolidated statements statement of income, comprehensive income, cash flows and changes in shareholders’ equity of Real the Company and its Subsidiaries for such fiscal year, all such financial statements audited and certified by independent public accountants of recognized standing; provided that this requirement shall be deemed to have been satisfied if on or prior to such date Real the Company files its audited annual financial statements report on Form 10-K for the applicable fiscal year with the applicable Canadian Securities Commissions pursuant to National Instrument 51-102 – Continuous Disclosure ObligationsSEC;
(bii) within 45 forty-five (45) days after the end of each of the first three (3) quarters of each fiscal year of Realthe Company, (iA) an unaudited, consolidated balance sheet of Real the Company and its Subsidiaries as of the end of such fiscal quarter, (B) an unaudited, consolidated income statement of the Company and its Subsidiaries for such fiscal quarter and (iiC) an unaudited, consolidated statements statement of income, comprehensive income and cash flows of Real the Company and its Subsidiaries for such fiscal quarter, all prepared in accordance with IFRS; provided that this requirement shall be deemed to have been satisfied if on or prior to such date Real the Company files its interim financial quarterly report on Form 10-Q for the applicable fiscal year with the applicable Canadian Securities Commissions pursuant to National Instrument 51-102 – Continuous Disclosure ObligationsSEC;
(iii) within seventy five (75) days after the end of each calendar year, the information set forth on Exhibit B; and
(civ) (i) access to at the request of Investor Parties, such other reports and consultation with appropriate officers, directors and management personnel of Real and its Subsidiaries at such times information as may be reasonably requested by Investor Parties; provided, that the Investors, in such manner as not to interfere unreasonably with the conduct of business of Real and its Subsidiaries, for consultation with the Investors with respect to matters relating to the business and affairs of the Issuer, and (ii) in connection with same, Real will furnish Investors with copies of any business plans, monthly financial reports, quarterly management reports, formal presentations to the Board, material documents provided to lenders of Real and such other financial and operating data and other information pertaining to Real; provided that in the case of (ii), such reports and information shall only be provided to the Investors to the extent they have been prepared by Real and made available to the Board and the lenders of Real, as applicable.
(2) Promptly after the determination of Real’s annual budget for each calendar year, Real shall promptly notify the Investors in writing of the aggregate annual budgeted recurring capital expenditure of Real and its Subsidiaries.
(3) Notwithstanding the foregoing, Real Company shall not be obligated to provide such access or materials set forth in this Section 4.6 if Real, acting in good faith, the Company determines, in its reasonable judgment based on the advice of outside counsel of international standingjudgment, that doing so would reasonably be expected to (x1) materially violate applicable securities LawsLaw, an applicable order or a contract or obligation of confidentiality owing to a third party or (y2) jeopardize the protection of an attorney-client privilege or privilege, attorney work product protection or other legal privilege (provided, however, that could reasonably relate the Company shall use reasonable efforts to the information provide alternative, redacted or documents in question, or (z) expose Real to liability for disclosure of personal information; provided that, in the case of each of clauses (x) through (z), Real shall immediately disclose as much information as possible, and provide the Investors with redacted, substitute or aggregated and/or anonymized documents or information in the most permissive a manner that would not result in, as applicable, Real violating in the applicable Law in question, losing loss of the ability to assert attorney-client privilege or privilege, attorney work product protection or exposing Real to the aforementioned liability.
(4) Each party hereto acknowledges and agrees other legal privileges); provided, further, that the Investor Nominee may share any Company shall use its commercially reasonable efforts to disclose such information concerning Real and its Subsidiaries received by him or her from or on behalf of Real or its designated representatives with in a manner that would not violate the Investors and their Representatives (other than any Persons that are Representatives solely by virtue of being actual or potential sources of debt or equity financing) (subject to the obligation of the Investors and their Representatives to maintain the confidentiality of Confidential Information in accordance with Section 4.5)foregoing.
(5) Real and the Issuer shall, as the Investors may reasonably request from time to time, provide to the Investors, pursuant to a management rights letter, such management rights as may be necessary for the Investors’ investment in Real and the Issuer to continue to qualify as a “venture capital investment” for purposes of 29 C.F.R. § 2510.3-101.
Appears in 1 contract
Samples: Investor Rights Agreement (Shenandoah Telecommunications Co/Va/)
Information Rights. (1) In order to facilitate (i) the Investors’ Investor’s and their its Affiliates’ compliance with legal and regulatory requirements applicable to the beneficial ownership by the Investors Investor and their its Affiliates of equity securities of Real, the Company and (ii) oversight of the provision by the Investors and their Affiliates’ of financial and other strategic advice to the business and affairs of Real and its Subsidiaries and the taking of such other actions for the benefit of Real and its Subsidiaries Investor’s investment in the “necessary course of business” in accordance with the interpretive guidance set out in NP 51-201Company, for so long as the Investors or their Affiliates hold any of Beneficial Ownership Requirement is met, the Purchased Securities, Real Company agrees promptly to provide the Investors Investor with the following, all of which shall be subject to Section 5.7:
(a) within 120 days after the end of each fiscal year of Realthe Company, (i) an audited, consolidated balance sheet of Real the Company and its Subsidiaries as of the end of such fiscal year and (ii) audited, consolidated statements of income, comprehensive income, cash flows and changes in shareholders’ equity of Real the Company and its Subsidiaries for such fiscal year, all such financial statements audited and certified by independent public accountants of recognized standing; provided that this requirement shall be deemed to have been satisfied if on or prior to such date Real the Company files its audited annual financial statements with the applicable Canadian Securities Commissions pursuant to National Instrument 51-102 – Continuous Disclosure Obligations;
(b) within 45 60 days after the end of each of the first three quarters of each fiscal year of Realthe Company, (i) an unaudited, consolidated balance sheet of Real the Company and its Subsidiaries as of the end of such fiscal quarter and (ii) consolidated statements of income, comprehensive income and cash flows of Real the Company and its Subsidiaries for such fiscal quarter, all prepared in accordance with IFRS; provided that this requirement shall be deemed to have been satisfied if on or prior to such date Real the Company files its interim financial report with the applicable Canadian Securities Commissions pursuant to National Instrument 51-102 – Continuous Disclosure Obligations;
(c) as promptly as practicable, a copy of the proposed annual budget for the Company and its Subsidiaries (as shared with the Board); and
(cd) (i) access to and consultation with appropriate officersas promptly as practicable following receipt thereof, directors and management personnel a copy of Real and its Subsidiaries at such times as reasonably requested by any written notice, letter, correspondence or other written communication from a Governmental Entity or any litigation proceedings or filings involving the Investors, in such manner as not to interfere unreasonably with the conduct Company or any of business of Real and its Subsidiaries, for consultation with the Investors with in each case, in respect to matters relating to the business and affairs of the IssuerCompany’s potential, and (ii) in connection with same, Real will furnish Investors with copies actual or alleged violation of any business plans, monthly financial reports, quarterly management reports, formal presentations to and all applicable Laws in any material respect and any written responses by the Board, material documents provided to lenders of Real and such other financial and operating data and other information pertaining to RealCompany in respect thereto; provided that in the case of (ii), such reports and information shall only be provided to the Investors to the extent they have been prepared by Real and made available to the Board and the lenders of Real, as applicable.
(2) Promptly after the determination of Real’s annual budget for each calendar year, Real shall promptly notify the Investors in writing of the aggregate annual budgeted recurring capital expenditure of Real and its Subsidiaries.
(3) Notwithstanding the foregoing, Real Company shall not be obligated required to provide furnish such access copies or materials set forth other information, the disclosure of which would reasonably be expected to result in this Section 4.6 if Real, acting in good faith, determines, in its reasonable judgment based on the advice loss or impairment of outside counsel of international standing, that doing so would (x) materially violate applicable securities Laws, (y) jeopardize the protection of an attorneysolicitor-client privilege or attorney work product protection that could reasonably relate to the information or documents in question, or (z) expose Real to liability for disclosure of personal information; provided that, in the case of each of clauses (x) through (z), Real shall immediately disclose as much information as possible, and provide the Investors with redacted, substitute or aggregated and/or anonymized documents or information in the most permissive manner that would not result in, as applicable, Real violating the applicable Law in question, losing the ability to assert attorney-client privilege or attorney work product protection or exposing Real to the aforementioned liabilityprivilege.
(4) Each party hereto acknowledges and agrees that the Investor Nominee may share any information concerning Real and its Subsidiaries received by him or her from or on behalf of Real or its designated representatives with the Investors and their Representatives (other than any Persons that are Representatives solely by virtue of being actual or potential sources of debt or equity financing) (subject to the obligation of the Investors and their Representatives to maintain the confidentiality of Confidential Information in accordance with Section 4.5).
(5) Real and the Issuer shall, as the Investors may reasonably request from time to time, provide to the Investors, pursuant to a management rights letter, such management rights as may be necessary for the Investors’ investment in Real and the Issuer to continue to qualify as a “venture capital investment” for purposes of 29 C.F.R. § 2510.3-101.
Appears in 1 contract
Samples: Investor Rights and Strategic Opportunities Agreement
Information Rights. (1a) In order Subject to facilitate Section 11.4(g), each Member shall be entitled to receive, and the Company shall make available, the following reports in a timely manner as described below:
(i) the Investors’ and their Affiliates’ compliance with legal and regulatory requirements applicable to the beneficial ownership by the Investors and their Affiliates of equity securities of Real, and (ii) the provision by the Investors and their Affiliates’ of financial and other strategic advice to the business and affairs of Real and its Subsidiaries and the taking of such other actions for the benefit of Real and its Subsidiaries in the “necessary course of business” in accordance with the interpretive guidance set out in NP 51-201, for so long as the Investors or their Affiliates hold any of the Purchased Securities, Real agrees promptly to provide the Investors with the following:
(a) within 120 Within ninety days after the end of each fiscal Fiscal Year (commencing with the Fiscal Year ending August 1, 2020, for which year such period shall be one hundred and twenty days, audited annual consolidated financial statements of Real, (i) an audited, consolidated balance sheet of Real the Company and its Subsidiaries Subsidiaries, certified by a national accounting firm and prepared in accordance with GAAP, along with a reasonably detailed management’s discussion and analysis in narrative form commenting on such financial statements (“MD&A”), which shall include such other information as determined in the discretion of the end Board of such fiscal year and Directors;
(ii) audited, consolidated statements of income, comprehensive income, cash flows and changes in shareholders’ equity of Real and its Subsidiaries for such fiscal year, all such financial statements audited and certified by independent public accountants of recognized standing; provided that this requirement shall be deemed to have been satisfied if on or prior to such date Real files its audited annual financial statements with the applicable Canadian Securities Commissions pursuant to National Instrument 51Within forty-102 – Continuous Disclosure Obligations;
(b) within 45 five days after the end of each of the first three fiscal quarters of each Fiscal Year (commencing with the fiscal year quarter ending October 31, 2020, for which fiscal quarter such period shall be seventy-five days), unaudited quarterly condensed consolidated financial statements of Real, (i) an unaudited, consolidated balance sheet of Real the Company and its Subsidiaries as of the end of such fiscal quarter and (ii) consolidated statements of incomeSubsidiaries, comprehensive income and cash flows of Real and its Subsidiaries for such fiscal quarter, all prepared in accordance with IFRS; provided that this requirement GAAP and with respect to which a national accounting firm has conducted customary procedures, along with an MD&A with respect thereto, which shall be deemed to have been satisfied if on or prior to include such date Real files its interim financial report with other information as determined in the applicable Canadian Securities Commissions pursuant to National Instrument 51-102 – Continuous Disclosure Obligationsdiscretion of the Board of Directors; and
(ciii) Whether or not the Company is subject to the reporting requirements of Section 13 or Section 15(d) of the Exchange Act, within 10 days from the occurrence of the relevant event, information substantially similar to the information that would have been required to be reported on a Current Report on Form 8-K if the Company were subject to the reporting requirements of Section 13 or Section 15(d) of the Exchange Act, for any of the following events: (iA) access “Creation of a Direct Financial Obligation or an Obligation under an Off-Balance Sheet Arrangement of a Registrant” pursuant to and consultation with appropriate officersItem 2.03 on Form 8-K, directors and management personnel of Real and its Subsidiaries at such times as reasonably requested (B) any significant acquisitions or dispositions by the Investors, in such manner as not to interfere unreasonably with the conduct Company or any of business of Real and its Subsidiaries, for consultation with (C) the Investors with respect to matters relating to the business and affairs bankruptcy of the IssuerCompany or any of its Subsidiaries, (D) the acceleration of any indebtedness of the Company or any of its Subsidiaries having a principal amount in excess of $15.0 million, (E) a change in the certifying independent auditor or the Company or any of its Subsidiaries, (F) the appointment or departure of the chief executive officer or chief financial officer (or persons fulfilling similar duties) of the Company or any of its Subsidiaries, (G) non-reliance on previously issued financial statements of the Company or any of its Subsidiaries, and (iiH) in connection the incurrence of costs associated with same, Real will furnish Investors with copies exit or disposal activities by the Company or any of any business plans, monthly financial reports, quarterly management reports, formal presentations to the Board, material documents provided to lenders of Real and such other financial and operating data and other information pertaining to Real; provided that in the case of (ii), such reports and information shall only be provided to the Investors to the extent they have been prepared by Real and made available to the Board and the lenders of Real, as applicable.
(2) Promptly after the determination of Real’s annual budget for each calendar year, Real shall promptly notify the Investors in writing of the aggregate annual budgeted recurring capital expenditure of Real and its Subsidiaries.
(3b) Notwithstanding The Company shall furnish to the foregoingMembers and, Real upon a Member’s request, to such Member’s prospective eligible Transferees, the information that would be required to be delivered pursuant to Rule 144A(d)(4) under the Securities Act; provided that the requirements of this Section 11.4(b) shall not terminate upon the earliest to occur of the following: (i) the first date on which no Common Units are outstanding and (ii) the Company becomes subject to the obligations of Section 13 or Section 15(d) of the Exchange Act or Rule 12g3-2(b) promulgated thereunder.
(c) The information and reports to be obligated provided pursuant to provide Section 11.4(a) shall, to the extent permitted, be made available to each Member and each of a Member’s qualifying prospective Transferees, as applicable, through an online data room maintained by the Company.
(d) Within ten Business Days of the date the required information for the prior fiscal period have been furnished pursuant to Sections 11.4(a)(i) and (a)(ii), as applicable, the Company shall hold a conference call, during normal business hours and upon no less than two Business Days’ notice to the Members, which shall be attended by such access or materials members of the Company’s senior management as determined by the Company, to which all Members will be invited, to discuss the Company’s business.
(e) Each Member acknowledges that the information made available pursuant to this Section 11.4, including on any conference call pursuant to Section 11.4(d), may include material non-public information concerning the Company and its Subsidiaries, and agrees that it will handle such information in accordance with applicable Law, including applicable securities Laws, and in accordance with Section 11.17 of this Agreement.
(f) Each Initial Member shall be permitted to transfer the information rights set forth in this Section 4.6 if Real, acting 11.4 to any transferee in good faith, determines, any Transfer of Units that is otherwise permitted under this Agreement (provided that the transferring Initial Member may also maintain its rights set forth in its reasonable judgment based on the advice of outside counsel of international standing, that doing so would (x) materially violate applicable securities Laws, (y) jeopardize the protection of an attorney-client privilege or attorney work product protection that could reasonably relate this Section 11.4 to the information or documents in question, or (z) expose Real extent that it continues to liability for disclosure of personal information; provided that, in the case of each of clauses (x) through (z), Real shall immediately disclose as much information as possible, and provide the Investors with redacted, substitute or aggregated and/or anonymized documents or information in the most permissive manner that would not result in, as applicable, Real violating the applicable Law in question, losing the ability to assert attorney-client privilege or attorney work product protection or exposing Real to the aforementioned liability.
(4) Each party hereto acknowledges and agrees that the Investor Nominee may share any information concerning Real and its Subsidiaries received by him or her from or on behalf of Real or its designated representatives with the Investors and their Representatives (other than any Persons that are Representatives solely by virtue of being actual or potential sources of debt or equity financing) (subject to the obligation of the Investors and their Representatives to maintain the confidentiality of Confidential Information in accordance with Section 4.5hold Common Units).
(5g) Real and the Issuer shall, as the Investors may reasonably request from time to time, provide to the Investors, The Company shall not have any obligations pursuant to this Section 11.4 to provide, furnish or give access to any information to any Competitor, except that this restriction shall not eliminate an obligation that the Company may otherwise have to provide information to a management rights letter, such management rights as may be necessary for the Investors’ investment in Real and the Issuer prospective Transferee pursuant to continue to qualify as a “venture capital investment” for purposes of 29 C.F.R. § 2510.3-101Section 11.4(b).
Appears in 1 contract
Samples: Limited Liability Company Agreement
Information Rights. The Corporation will furnish to each Stockholder owning at least five percent (15%) In order to facilitate (i) of all issued and outstanding shares of Common Stock the Investors’ and their Affiliates’ compliance with legal and regulatory requirements applicable to the beneficial ownership by the Investors and their Affiliates of equity securities of Real, and (ii) the provision by the Investors and their Affiliates’ of financial and other strategic advice to the business and affairs of Real and its Subsidiaries and the taking of such other actions for the benefit of Real and its Subsidiaries in the “necessary course of business” in accordance with the interpretive guidance set out in NP 51-201, for so long as the Investors or their Affiliates hold any of the Purchased Securities, Real agrees promptly to provide the Investors with the followingfollowing information:
(a) within 120 days after As soon as available, but no later than the end later of each fiscal year of Real, (i) an audited, consolidated balance sheet ninety (90) days following completion of Real and its Subsidiaries as of the end of such each fiscal year and (ii) auditedthe applicable filing deadline under SEC rules, the audited consolidated balance sheet of the Corporation and its Subsidiaries as at the end of each such fiscal year and the audited consolidated statements of income, comprehensive income, cash flows and changes in shareholders’ stockholders' equity for such year of Real the Corporation and its Subsidiaries Subsidiaries, setting forth in each case in comparative form the figures for such the next preceding fiscal year, all such financial statements audited and accompanied by the report of independent certified by independent public accountants of recognized national standing; provided that this requirement shall be deemed to have been satisfied if if, on or prior to such date Real date, the Corporation files its audited annual financial statements report on Form 10-K for the applicable fiscal year with the applicable Canadian Securities Commissions pursuant to National Instrument 51-102 – Continuous Disclosure ObligationsSEC;
(b) within 45 As soon as available, but no later than the later of (i) forty-five (45) days after the end of each of the first three quarters following completion of each fiscal year of Realquarter (other than the fourth fiscal quarter) and (ii) the applicable filing deadlines under SEC rules, (i) an unaudited, the consolidated balance sheet of Real the Corporation and its Subsidiaries as of at the end of such fiscal quarter and (ii) the consolidated statements of income, comprehensive income and cash flows and changes in stockholders' equity for such quarter and the portion of Real the fiscal year then ended of the Corporation and its Subsidiaries Subsidiaries, setting forth in each case the figures for such the corresponding periods of the previous fiscal quarter, all prepared year in accordance with IFRScomparative form; provided that this requirement shall be deemed to have been satisfied if if, on or prior to such date Real date, the Corporation files its interim financial quarterly report on Form 10-Q for the applicable fiscal quarter with the applicable Canadian Securities Commissions pursuant to National Instrument 51-102 – Continuous Disclosure Obligations; andSEC;
(c) Within ninety (i90) access days after the end of each fiscal year, such information that the Corporation then-has which is reasonably necessary for the preparation of such Stockholder's income tax returns (whether federal, state or foreign);
(d) Reasonable access, to and consultation with appropriate officers, directors and management personnel of Real and its Subsidiaries at such times as the extent reasonably requested by the InvestorsStockholder, to the offices and the properties of the Corporation and its Subsidiaries, including its and their books and records, and to discuss its and their affairs, finances and accounts with its and their officers, all upon reasonable notice and at such reasonable times and as often as the Stockholder may reasonably request; provided that any investigation pursuant to this Section 7(c) shall be conducted in such a manner as not to interfere unreasonably with the conduct of the business of Real the Corporation and its Subsidiaries; provided, for consultation with that, in each case, the Investors with respect to matters relating to the business and affairs of the Issuer, and (ii) in connection with same, Real will furnish Investors with copies of any business plans, monthly financial reports, quarterly management reports, formal presentations to the Board, material documents provided to lenders of Real and such other financial and operating data and other information pertaining to Real; provided that in the case of (ii), such reports and information shall only be provided to the Investors to the extent they have been prepared by Real and made available to the Board and the lenders of Real, as applicable.
(2) Promptly after the determination of Real’s annual budget for each calendar year, Real shall promptly notify the Investors in writing of the aggregate annual budgeted recurring capital expenditure of Real and its Subsidiaries.
(3) Notwithstanding the foregoing, Real Corporation shall not be obligated to provide such access or materials set forth in this Section 4.6 if Real, acting in good faith, the Corporation determines, in its reasonable judgment based on the advice of outside counsel of international standingjudgment, that doing so would reasonably be expected to (xi) materially result in the disclosure of trade secrets or competitively sensitive information to third parties, (ii) violate applicable securities Lawslaw or any contractual or other obligation of confidentiality owing to a third party, (yiii) jeopardize the protection of an attorney-client privilege or privilege, attorney work product protection or other legal privilege (provided, however, that could reasonably relate the Corporation shall use reasonable efforts to the information provide alternative, redacted or documents in question, or (z) expose Real to liability for disclosure of personal information; provided that, in the case of each of clauses (x) through (z), Real shall immediately disclose as much information as possible, and provide the Investors with redacted, substitute or aggregated and/or anonymized documents or information in the most permissive a manner that would not result in, as applicable, Real violating in the applicable Law in question, losing loss of the ability to assert attorney-client privilege or privilege, attorney work product protection or exposing Real other legal privileges), or (iv) expose the Corporation to risk of liability for disclosure of personal information. In furtherance of the foregoing, each Stockholder agrees that it shall not (and shall cause its Subsidiaries not to) use or disclose any information or materials received pursuant to this Section 7 (or otherwise received from or in respect of the Corporation or its Subsidiaries or which is otherwise related to the aforementioned liability.
(4Corporation’s or its Subsidiaries’ business) Each party hereto acknowledges and agrees in a manner that would reasonably be expected to be adverse to the Corporation or its Subsidiaries or their respective businesses, except that the Investor Nominee may share foregoing shall not in any information concerning Real and its Subsidiaries received by him way limit, restrict or her from supersede in any respect any waiver of corporate opportunity doctrine or on behalf similar provision in favor of Real or its designated representatives with any Stockholder in any of the Investors and their Representatives Corporation’s Governing Documents (other than any Persons that are Representatives solely by virtue of being actual or potential sources of debt or equity financingincluding the Charter) (subject and in the event of any conflict between any such provision and this sentence with respect to the obligation of the Investors and their Representatives to maintain the confidentiality of Confidential Information in accordance with Section 4.5any Stockholder, such provision shall control).
(5) Real and the Issuer shall, as the Investors may reasonably request from time to time, provide to the Investors, pursuant to a management rights letter, such management rights as may be necessary for the Investors’ investment in Real and the Issuer to continue to qualify as a “venture capital investment” for purposes of 29 C.F.R. § 2510.3-101.
Appears in 1 contract
Samples: Stockholders Agreement (Allegro Microsystems, Inc.)
Information Rights. (1) In order 10.1. The Company shall deliver to facilitate (i) each Preferred Shareholder the Investors’ following documents and their Affiliates’ compliance information of each Group Company provided that with legal and regulatory requirements applicable respect to the beneficial ownership by Series A Shareholders, the Investors Series B Shareholders and their Affiliates of equity securities of RealSeries C Shareholders, and (ii) the provision by the Investors and their Affiliates’ of financial and other strategic advice to the business and affairs of Real such Preferred Shareholder and its Subsidiaries and the taking of such other actions for the benefit of Real and its Subsidiaries in the “necessary course of business” in accordance with the interpretive guidance set out in NP 51-201, for so long as the Investors or their Affiliates hold any Associates own not less than three percent (3%) of the Purchased Securities, Real agrees promptly to provide issued and outstanding Equity Securities of the Investors with the following:Company (on an as-converted basis):
(a) audited annual consolidated financial statements, including a separate balance sheet, income statement, statement of cash flows and other customary financial statements, within 120 sixty (60) days after the end of each fiscal year of Real, (i) an audited, consolidated balance sheet of Real and its Subsidiaries as of the end of such fiscal year and (ii) audited, consolidated statements of income, comprehensive income, cash flows and changes in shareholders’ equity of Real and its Subsidiaries for such fiscal year, all such financial statements audited and certified by independent public accountants a “Big 4” accounting firm or any other reputable, internationally recognized accounting firm, prepared in accordance with IFRS, and all certified as true, correct and not misleading by the chief financial officer of recognized standing; provided that this requirement shall be deemed to have been satisfied if on or prior to such date Real files its audited annual financial statements with the applicable Canadian Securities Commissions pursuant to National Instrument 51-102 – Continuous Disclosure ObligationsCompany;
(b) unaudited quarterly consolidated financial statements, including a separate balance sheet, income statement, statement of cash flows and other customary financial statements, for such quarter within 45 thirty (30) days after the end of each of the first three quarters of each fiscal year of Realquarters, (i) an unaudited, consolidated balance sheet of Real and its Subsidiaries as of the end of such fiscal quarter and (ii) consolidated statements of income, comprehensive income and cash flows of Real and its Subsidiaries for such fiscal quarter, all prepared in accordance with IFRS; , and all certified as true, correct and not misleading by the chief financial officer of the Company;
(c) unaudited monthly consolidated financial statements, including a separate balance sheet, income statement, statement of cash flows and other customary financial statements, within fifteen (15) days after the end of each month, prepared in accordance with IFRS, and all certified as true, correct and not misleading by the chief financial officer of the Company;
(d) a draft annual consolidated operating budget and business plan for the approval of the Board at least thirty (30) days prior to the beginning of each fiscal year, provided that this requirement the final budget shall be deemed approved by the Board (including approval of the Preferred Directors Majority) and subject to have been satisfied if on Section 4;
(e) as soon as practicable, any other information (including monthly or prior to such date Real files its interim financial report other periodic operating metrics (with the applicable Canadian Securities Commissions pursuant to National Instrument 51-102 – Continuous Disclosure Obligationsinitial operating metrics set forth on Schedule 3 attached hereto)) reasonably requested by any Preferred Shareholder; and
(cf) copies of all documents or other information sent to other Shareholders and any reports publicly filed by the Company with any relevant securities exchange, regulatory authority or governmental agency, no later than five (5) calendar days after such documents or information are filed by the Company. The audited financial statements referred to in this Section 10.1 shall be prepared in accordance with IFRS by a “Big 4” accounting firm or any other internationally recognized, reputable accounting firm selected by the Board (including affirmative votes of the Preferred Directors Majority) and API.
10.2. Each Preferred Shareholder shall have the following rights during normal business hours with reasonable prior notice to the Company, provided that with respect to the Series A Shareholders, the Series B Shareholders and Series C Shareholders, such Preferred Shareholder and its Associates own not less than three percent (3%) of the issued and outstanding Equity Securities of the Company (on an as-converted basis): (i) access the right to inspect the books and consultation with appropriate officers, directors and management personnel records (including without limitation financial records) of Real and its Subsidiaries at such times as reasonably requested by the Investors, in such manner as not to interfere unreasonably with the conduct of business of Real and its Subsidiaries, for consultation with the Investors with respect to matters relating to the business and affairs of the Issuer, and all Group Companies; (ii) the right to inspect the plant, equipment, stock in connection with same, Real will furnish Investors with copies trade and facilities of any business plansGroup Companies and (iii) the right to discuss the business, monthly financial reports, quarterly operations and management reports, formal presentations to the Board, material documents provided to lenders of Real and such other financial and operating data and other information pertaining to Real; matters of any Group Companies with their respective directors, officers, employees, accountants, auditors, financial advisors, legal counsel and investment bankers, provided that in the case of (ii), no event shall such reports and information shall only be provided to the Investors to the extent they have been prepared by Real and made available to the Board and the lenders of Real, as applicable.
(2) Promptly after the determination of Real’s annual budget for each calendar year, Real shall promptly notify the Investors in writing exercise of the aggregate annual budgeted recurring capital expenditure of Real and its Subsidiaries.
(3) Notwithstanding inspection rights materially impair the foregoing, Real shall not be obligated to provide such access or materials set forth in this Section 4.6 if Real, acting in good faith, determines, in its reasonable judgment based on the advice of outside counsel of international standing, that doing so would (x) materially violate applicable securities Laws, (y) jeopardize the protection of an attorney-client privilege or attorney work product protection that could reasonably relate to the information or documents in question, or (z) expose Real to liability for disclosure of personal information; provided that, in the case of each of clauses (x) through (z), Real shall immediately disclose as much information as possible, and provide the Investors with redacted, substitute or aggregated and/or anonymized documents or information in the most permissive manner that would not result in, as applicable, Real violating the applicable Law in question, losing the ability to assert attorney-client privilege or attorney work product protection or exposing Real to the aforementioned liability.
(4) Each party hereto acknowledges and agrees that the Investor Nominee may share any information concerning Real and its Subsidiaries received by him or her from or on behalf of Real or its designated representatives with the Investors and their Representatives (other than any Persons that are Representatives solely by virtue of being actual or potential sources of debt or equity financing) (subject to the obligation normal business operations of the Investors and their Representatives to maintain the confidentiality of Confidential Information in accordance with Section 4.5)Group Companies.
(5) Real and the Issuer shall, as the Investors may reasonably request from time to time, provide to the Investors, pursuant to a management rights letter, such management rights as may be necessary for the Investors’ investment in Real and the Issuer to continue to qualify as a “venture capital investment” for purposes of 29 C.F.R. § 2510.3-101.
Appears in 1 contract
Samples: Shareholders Agreement (Qudian Inc.)
Information Rights. (1) In From and after the Closing and until the Fall-Away of Investor Rights, in order to facilitate (i) the Investors’ and their AffiliatesInvestor Parties’ compliance with legal and regulatory requirements applicable to the beneficial ownership by the Investors Investor Parties and their Affiliates of equity securities of Real, and (ii) the provision by the Investors and their Affiliates’ of financial and other strategic advice to the business and affairs of Real and its Subsidiaries Parent and the taking of such other actions for the benefit of Real and its Subsidiaries in the “necessary course of business” in accordance with the interpretive guidance set out in NP 51-201Company, for so long as the Investors or their Affiliates hold any of the Purchased Securities, Real agrees promptly Parent shall provide to provide the Investors with the followingeach Investor Party:
(a) within 120 ninety (90) days after the end of each fiscal year of RealParent, (iA) an audited, consolidated balance sheet of Real Parent and its Subsidiaries as of the end of such fiscal year, (B) an audited, consolidated income statement of Parent and its Subsidiaries for such fiscal year and (iiC) an audited, consolidated statements statement of income, comprehensive income, cash flows and changes in shareholders’ equity of Real Parent and its Subsidiaries for such fiscal year, all such financial statements audited and certified by independent public accountants of recognized standing; provided that this requirement shall be deemed to have been satisfied if on or prior to such date Real Parent files its audited annual financial statements report on Form 10-K for the applicable fiscal year with the applicable Canadian Securities Commissions pursuant to National Instrument 51-102 – Continuous Disclosure ObligationsSEC;
(b) within 45 forty-five (45) days after the end of each of the first three (3) quarters of each fiscal year of RealParent, (i) an unaudited, consolidated balance sheet of Real Parent and its Subsidiaries as of the end of such fiscal quarter, (ii) an unaudited, consolidated income statement of Parent and its Subsidiaries for such fiscal quarter and (iiiii) an unaudited, consolidated statements statement of income, comprehensive income and cash flows of Real Parent and its Subsidiaries for such fiscal quarter, all prepared in accordance with IFRS; provided that this requirement shall be deemed to have been satisfied if on or prior to such date Real Parent files its interim financial quarterly report on Form 10-Q for the applicable fiscal year with the applicable Canadian Securities Commissions pursuant SEC;
(c) at the request of such Investor Party, annual budgets, monthly financial operating and capital expenditure reports;
(d) at the request of such Investor Party, any “Environmental, Social and Governance”-related information pertaining to National Instrument 51-102 – Continuous Disclosure ObligationsParent and its Subsidiaries as may be reasonably necessary to such Investor Party’s compliance, reporting and investor communications obligations or practices, in each case, to the extent such information would not be unreasonably burdensome for Parent and its Subsidiaries to produce; and
(ce) (i) access to at the request of such Investor Party, such other reports and consultation with appropriate officers, directors and management personnel of Real and its Subsidiaries at such times information as may be reasonably requested by the Investorssuch Investor Party; provided, in such manner as not to interfere unreasonably with the conduct of business of Real and its Subsidiaries, for consultation with the Investors with respect to matters relating to the business and affairs of the Issuer, and (ii) in connection with same, Real will furnish Investors with copies of any business plans, monthly financial reports, quarterly management reports, formal presentations to the Board, material documents provided to lenders of Real and such other financial and operating data and other information pertaining to Real; provided that in the case of (ii), such reports and information shall only be provided to the Investors to the extent they have been prepared by Real and made available to the Board and the lenders of Real, as applicable.
(2) Promptly after the determination of Real’s annual budget for each calendar year, Real shall promptly notify the Investors in writing of the aggregate annual budgeted recurring capital expenditure of Real and its Subsidiaries.
(3) Notwithstanding the foregoing, Real Parent shall not be obligated to provide such access or materials set forth in this Section 4.6 if Real, acting in good faith, Parent determines, in its reasonable judgment based on the advice of outside counsel of international standingjudgment, that doing so would reasonably be expected to (xi) materially violate applicable securities LawsLaw, an applicable order or a Contract or obligation of confidentiality owing to a third party or (yii) jeopardize the protection of an attorney-client privilege or privilege, attorney work product protection or other legal privilege (provided, however, that could reasonably relate Parent shall use reasonable efforts to the information provide alternative, redacted or documents in question, or (z) expose Real to liability for disclosure of personal information; provided that, in the case of each of clauses (x) through (z), Real shall immediately disclose as much information as possible, and provide the Investors with redacted, substitute or aggregated and/or anonymized documents or information in the most permissive a manner that would not result in, as applicable, Real violating in the applicable Law in question, losing loss of the ability to assert attorney-client privilege or privilege, attorney work product protection or exposing Real other legal privileges); provided, further, that Parent shall use its commercially reasonable efforts to disclose such information in a manner that would not violate the aforementioned liabilityforegoing.
(4) Each party hereto acknowledges and agrees that the Investor Nominee may share any information concerning Real and its Subsidiaries received by him or her from or on behalf of Real or its designated representatives with the Investors and their Representatives (other than any Persons that are Representatives solely by virtue of being actual or potential sources of debt or equity financing) (subject to the obligation of the Investors and their Representatives to maintain the confidentiality of Confidential Information in accordance with Section 4.5).
(5) Real and the Issuer shall, as the Investors may reasonably request from time to time, provide to the Investors, pursuant to a management rights letter, such management rights as may be necessary for the Investors’ investment in Real and the Issuer to continue to qualify as a “venture capital investment” for purposes of 29 C.F.R. § 2510.3-101.
Appears in 1 contract
Samples: Investment Agreement (Shenandoah Telecommunications Co/Va/)
Information Rights. (1) In order to facilitate (i) the Investors’ and their Affiliates’ compliance with legal and regulatory requirements applicable to the beneficial ownership by the Investors and their Affiliates of equity securities of Real, and (ii) the provision by the Investors and their Affiliates’ of financial and other strategic advice to the business and affairs of Real and its Subsidiaries and the taking of such other actions for the benefit of Real and its Subsidiaries in the “necessary course of business” in accordance with the interpretive guidance set out in NP 51-201, for For so long as the Investors or their Affiliates hold any Holder holds more than 25% of the Purchased SecuritiesSenior Note Warrants outstanding as of the Original Issue Date, Real agrees promptly the Holder shall be entitled to receive from the Company, and the Company shall, upon such Holder’s written request, provide the Investors with the followingto such Holder:
(a) as soon as available but in any event within 30 days after the end of each quarterly accounting period in each Fiscal Year, unaudited consolidated statements of income and cash flows of the Company and its Subsidiaries for such quarterly period and for the period from the beginning of the Fiscal Year to the end of such quarter, and consolidated balance sheets of the Company and its Subsidiaries as of the end of such quarterly period, all prepared in accordance with GAAP, subject to the absence of footnote disclosures and to normal year-end adjustments;
(b) within 120 days after the end of each fiscal year Fiscal Year, consolidating and consolidated statements of Realincome and cash flows of the Company and its Subsidiaries for such Fiscal Year, (i) an audited, and consolidating and consolidated balance sheet sheets of Real the Company and its Subsidiaries as of the end of such fiscal year Fiscal Year, setting forth in each case comparisons to the annual budget and (ii) audited, consolidated statements of income, comprehensive income, cash flows and changes in shareholders’ equity of Real and its Subsidiaries for such fiscal year, all such financial statements audited and certified by independent public accountants of recognized standing; provided that this requirement shall be deemed to have been satisfied if on or prior to such date Real files its audited annual financial statements with the applicable Canadian Securities Commissions pursuant to National Instrument 51-102 – Continuous Disclosure Obligations;
(b) within 45 days after the end of each of the first three quarters of each fiscal year of Real, (i) an unaudited, consolidated balance sheet of Real and its Subsidiaries as of the end of such fiscal quarter and (ii) consolidated statements of income, comprehensive income and cash flows of Real and its Subsidiaries for such fiscal quarterpreceding Fiscal Year, all prepared in accordance with IFRS; provided that this requirement shall be deemed GAAP and accompanied by (i) with respect to have been satisfied if on the consolidated portions of such statements, an opinion containing no exceptions or prior qualifications (except for qualifications regarding specified contingent liabilities) of an independent accounting firm of recognized national standing and (ii) a copy of such accounting firm’s annual management letter to such date Real files its interim financial report with the applicable Canadian Securities Commissions pursuant to National Instrument 51-102 – Continuous Disclosure ObligationsBoard; and
(c) (i) access to and consultation with appropriate officers, directors and management personnel of Real and its Subsidiaries at such times as reasonably requested by the Investors, in such manner as not to interfere unreasonably with the conduct of business of Real and its Subsidiaries, for consultation with the Investors with respect to matters relating to the business and affairs of the Issuer, and (ii) in connection with same, Real will furnish Investors with copies of any business plans, monthly financial reports, quarterly management reports, formal presentations materials distributed to the Board; provided, material documents provided to lenders of Real however, that the Holder shall maintain and such other financial treat as privileged (if applicable) and operating data and other information pertaining to Real; provided that in the case of (ii), such reports and information shall only be confidential any materials provided to the Investors Holder pursuant to this Section 8(c) and the Board may omit or withhold any such materials if it determines in good faith that furnishing such materials would jeopardize any attorney-client privilege, violate applicable law or result in significant anti-trust or other risk or detriment to the extent they have been prepared by Real and made available to the Board and the lenders of Real, as applicable.
(2) Promptly after the determination of Real’s annual budget for each calendar year, Real shall promptly notify the Investors in writing of the aggregate annual budgeted recurring capital expenditure of Real and Company or its Subsidiaries.
(3) Notwithstanding the foregoing, Real shall not be obligated to provide such access or materials set forth in this Section 4.6 if Real, acting in good faith, determines, in its reasonable judgment based on the advice of outside counsel of international standing, that doing so would (x) materially violate applicable securities Laws, (y) jeopardize the protection of an attorney-client privilege or attorney work product protection that could reasonably relate to the information or documents in question, or (z) expose Real to liability for disclosure of personal information; provided that, in the case of each of clauses (x) through (z), Real shall immediately disclose as much information as possible, and provide the Investors with redacted, substitute or aggregated and/or anonymized documents or information in the most permissive manner that would not result in, as applicable, Real violating the applicable Law in question, losing the ability to assert attorney-client privilege or attorney work product protection or exposing Real to the aforementioned liability.
(4) Each party hereto acknowledges and agrees that the Investor Nominee may share any information concerning Real and its Subsidiaries received by him or her from or on behalf of Real or its designated representatives with the Investors and their Representatives (other than any Persons that are Representatives solely by virtue of being actual or potential sources of debt or equity financing) (subject to the obligation of the Investors and their Representatives to maintain the confidentiality of Confidential Information in accordance with Section 4.5).
(5) Real and the Issuer shall, as the Investors may reasonably request from time to time, provide to the Investors, pursuant to a management rights letter, such management rights as may be necessary for the Investors’ investment in Real and the Issuer to continue to qualify as a “venture capital investment” for purposes of 29 C.F.R. § 2510.3-101.
Appears in 1 contract
Samples: Warrant Agreement (Aurora Diagnostics Holdings LLC)
Information Rights. (1) In order The Company covenants and agrees that, commencing on the date of this Agreement, the Company will deliver to facilitate each of the Preferred Holders:
(i) the Investors’ and their Affiliates’ compliance with legal and regulatory requirements applicable to the beneficial ownership by the Investors and their Affiliates of equity securities of Realaudited annual consolidated financial statements, and within ninety (ii90) the provision by the Investors and their Affiliates’ of financial and other strategic advice to the business and affairs of Real and its Subsidiaries and the taking of such other actions for the benefit of Real and its Subsidiaries in the “necessary course of business” in accordance with the interpretive guidance set out in NP 51-201, for so long as the Investors or their Affiliates hold any of the Purchased Securities, Real agrees promptly to provide the Investors with the following:
(a) within 120 days after the end of each fiscal year year, and audited by one of Realthe Big Four Accounting Firms or any other qualified accounting firm chosen by the Company acceptable to the Preferred Majority (as defined below), and management accounts;
(iii) an auditedunaudited quarterly consolidated financial statements and management accounts, consolidated balance sheet of Real and its Subsidiaries as within thirty (30) days of the end of such each fiscal year and (ii) audited, consolidated statements of income, comprehensive income, cash flows and changes in shareholders’ equity of Real and its Subsidiaries for such fiscal year, all such financial statements audited and certified by independent public accountants of recognized standing; provided that this requirement shall be deemed to have been satisfied if on or prior to such date Real files its audited annual financial statements with the applicable Canadian Securities Commissions pursuant to National Instrument 51-102 – Continuous Disclosure Obligationsquarter;
(biii) unaudited monthly consolidated financial statements and management accounts within 45 fifteen (15) days after of the end of each of month;
(iv) an annual consolidated budget (including without limitation the first three quarters fix-assets investment amount, operation budget and business strategy) for the next fiscal year, within forty-five (45) days prior to the end of each fiscal year year;
(v) copies of Realany reports filed by the Company with any relevant securities exchange, regulatory authority or governmental agency.
(ivi) an unaudited, consolidated balance sheet copies of Real and its Subsidiaries as all documents or other information sent to any shareholder of the end of such fiscal quarter and (ii) consolidated statements of income, comprehensive income and cash flows of Real and its Subsidiaries for such fiscal quarter, all prepared in accordance with IFRS; provided that this requirement shall be deemed to have been satisfied if on or prior to such date Real files its interim financial report with the applicable Canadian Securities Commissions pursuant to National Instrument 51-102 – Continuous Disclosure ObligationsCompany; and
(cvii) (i) access to the consolidated financial statements shall include all Group Companies and consultation with appropriate officers, directors and management personnel of Real and its Subsidiaries at such times as reasonably requested if for any period the Company shall have any other subsidiary or entity directly or indirectly controlled by the InvestorsCompany whose accounts are consolidated with those of the Company, then in respect of such manner as not to interfere unreasonably with period the conduct of business of Real and its Subsidiaries, for consultation with the Investors with respect to matters relating financial statements delivered pursuant to the business foregoing sections shall be the consolidated and affairs consolidating financial statements of the Issuer, Company and (ii) in connection with same, Real will furnish Investors with copies of any business plans, monthly all such consolidated subsidiaries and entities. All financial reports, quarterly management reports, formal presentations statements to the Board, material documents provided to lenders of Real and such other financial and operating data and other information pertaining to Real; provided that in the case of (ii), such reports and information shall only be provided to the Investors Preferred Holders pursuant to the extent they have been prepared by Real and made available to the Board and the lenders of Real, as applicable.
(2) Promptly after the determination of Real’s annual budget for each calendar year, Real shall promptly notify the Investors in writing of the aggregate annual budgeted recurring capital expenditure of Real and its Subsidiaries.
(3) Notwithstanding the foregoing, Real shall not be obligated to provide such access or materials set forth in this Section 4.6 if Real1.1 shall be prepared in conformance with the PRC generally accepted accounting principles, acting in good faiththe International Financial Reporting Standards, determinesthe United States generally accepted accounting principles or any other accounting principles approved by the Preferred Majority. All management accounts shall include a comparison of financial results with the corresponding annual, in its reasonable judgment based on the advice of outside counsel of international standing, that doing so would (x) materially violate applicable securities Laws, (y) jeopardize the protection of an attorney-client privilege or attorney work product protection that could reasonably relate quarterly and monthly budgets. The rights to have access to the information or documents set out in question, or (z) expose Real to liability for disclosure of personal information; provided that, in the case of each of clauses (x) through (z), Real Section 1.1 shall immediately disclose as much information as possible, and provide the Investors with redacted, substitute or aggregated and/or anonymized documents or information in the most permissive manner that would not result in, as applicable, Real violating the applicable Law in question, losing the ability to assert attorney-client privilege or attorney work product protection or exposing Real to the aforementioned liability.
(4) Each party hereto acknowledges and agrees that the Investor Nominee may share any information concerning Real and its Subsidiaries received by him or her from or on behalf of Real or its designated representatives with the Investors and their Representatives (other than any Persons that are Representatives solely by virtue of being actual or potential sources of debt or equity financing) (subject to the obligation of the Investors and their Representatives to maintain the confidentiality of Confidential Information in accordance with Section 4.5).
(5) Real and the Issuer shall, be referred hereinafter as the Investors may reasonably request from time to time, provide to the Investors, pursuant to a management rights letter, such management rights as may be necessary for the Investors’ investment in Real and the Issuer to continue to qualify as a “venture capital investment” for purposes of 29 C.F.R. § 2510.3-101Information Rights”.
Appears in 1 contract
