Reports and Other Information. (a) Notwithstanding that the Issuer may not be subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act or otherwise report on an annual and quarterly basis on forms provided for such annual and quarterly reporting pursuant to rules and regulations promulgated by the SEC, the Issuer shall furnish to the Trustee and Holders of the Notes (without exhibits) or post on its website (which may be password protected so long as the password is made promptly available by the Issuer to the Holders, research analysts and prospective purchasers upon request) no later than 15 days after the dates specified below: (1) within 90 days after the end of each fiscal year (beginning with the fiscal year ending after the Issue Date), annual reports containing substantially all of the information required to be contained in an Annual Report on Form 10-K if the Issuer had been a reporting company under the Exchange Act (but only to the extent similar information is included in the Offering Memorandum); provided, that the Issuer shall not be required to provide the information otherwise required to be presented by reporting companies under the Exchange Act pursuant to Part III of Form 10-K except for such information as would be required by Item 401 of Regulation S-K (other than the information required by subsections (c) and (g) of such item), Item 403(a) of Regulation S-K and Item 404 of Regulation S-K (assuming a transaction threshold of $2,500,000 rather than $120,000 and other than information with respect to employment and compensation arrangements and the information required by Item 404(b)); (2) within 45 days after the end of each of the first three fiscal quarters of each fiscal year, reports containing substantially all of the information required to be contained in a Quarterly Report on Form 10-Q if the Issuer had been a reporting company under the Exchange Act (but only to the extent similar information is included in the Offering Memorandum); and (3) within the later of 15 days after the occurrence of the specified event or within five (5) Business Days of the date on which an event would have been required to be reported on a Form 8-K (as in effect on the Issue Date), information pursuant to Items 1.01 (Entry into a Material Definitive Agreement), 1.02 (Termination of a Material Definitive Agreement), 1.03 (Bankruptcy or Receivership), 2.01 (Completion of Acquisition or Disposition of Assets), 2.04 (Triggering Events that Accelerate or Increase a Direct Financial Obligation or an Obligation under an Off-Balance Sheet Arrangement), 2.06 (Material Impairment), 4.01 (Changes in Registrant’s Certifying Accountants), 4.02 (Non-Reliance on Previously Issued Financial Statements or a Related Audit Report or Completed Interim Review), 5.01 (Changes in Control of Registrant), 5.02(a), (b) or (c) (Departure of Directors or Principal Officers; Election of Directors; Appointment of Principal Officers; Compensation Arrangements of Certain Officers) (other than any information relating to compensation arrangements with any directors or officers) and 9.01(a) (Financial Statements and Exhibits) (but only with respect to historical financial statements relating to transactions required to be reported pursuant to Item 2.01 and involving acquisitions of Persons that had revenues in excess of $500,000,000 for the last four completed fiscal quarters prior to the consummation of the acquisition) of a Current Report on Form 8-K (as in effect of the Issue Date); provided, that (a) no such report or information will be required to be so furnished if the Issuer determines in good faith that such event is not material to the Holders or the business, assets, operations or financial condition of the Issuer and its Restricted Subsidiaries, taken as a whole and (b) trade secrets and other confidential information that is competitively sensitive in the good faith and reasonable determination of the Issuer may be excluded from disclosures. (b) The reports required pursuant to clauses (1), (2) and (3) of Section 4.03(a) will not be required to comply with (i) Section 302, Section 404 or Section 906 of the Xxxxxxxx-Xxxxx Act of 2002, (ii) related Items 307 and 308 of Regulation S-K promulgated by the SEC, (iii) Item 10(e) of Regulation S-K (with respect to any non-GAAP financial measures contained therein) or any comparable successor provision and (iv) Regulation S-X Rule 3-10. (c) So long as any Notes are outstanding, the Issuer will also: (1) issue a press release to an internationally recognized wire service no fewer than three Business Days prior to the delivery or posting of the annual and quarterly reports required by clauses (1) and (2) of Section 4.03(a) announcing the date on which such reports will be made available to the Holders and directing Holders, research analysts and prospective purchasers to contact the investor relations office of the Issuer to obtain copies of such reports; (2) maintain a website (which may be password protected so long as the password is made promptly available by the Issuer to Holders, research analysts and prospective purchasers) to which all of the reports and press releases required by this Section 4.03 are posted; and (3) host and participate in customary quarterly conference calls (which may be a single conference call together with investors holding other securities of the Issuer and/or its Restricted Subsidiaries and/or any direct or indirect parent of the Issuer) to discuss operating results and related matters. The Issuer shall issue a press release which will provide the date and time of any such call and will direct Holders, prospective purchasers and research analysts to contact the investor relations office of the Issuer to obtain access to the conference call; provided, that the Issuer shall not be required to undertake the actions set forth in clauses (1), (2) and (3) of this Section 4.03(c) at any time that the Issuer or any direct or indirect parent thereof is otherwise undertaking similar actions on behalf of, and making similar information available to, investors holding other securities of the Issuer or any direct or indirect parent thereof; provided, further, that such information described in the immediately preceding proviso is made available to the Holders. (d) In addition, to the extent not satisfied by the foregoing, the Issuer will, for so long as any Notes are outstanding, furnish to Holders and to prospective purchasers, upon their request, the information required to be delivered pursuant to Rule 144A(d)(4) under the Securities Act. (e) The Issuer may satisfy its obligations in this Section 4.03 with respect to financial information relating to the Issuer by furnishing financial information relating to a direct or indirect parent company; provided that, if and for so long as such parent company shall have Independent Assets or Operations (as defined below), the same is accompanied by consolidating information that explains in reasonable detail the differences between the information relating to such parent company, on the one hand, and the information relating to the Issuer and its Restricted Subsidiaries on a stand-alone basis, on the other hand. “Independent Assets or Operations” means, with respect to any such parent company, that such parent company’s total assets, revenues, income from continuing operations before income taxes and cash flows from operating activities (excluding in each case amounts related to its investment in the Issuer and the Restricted Subsidiaries), determined in accordance with GAAP and as shown on the most recent balance sheet of such parent company, is more than 3.0% of such parent company’s corresponding consolidated amount.
Appears in 4 contracts
Samples: Indenture (Iqvia Holdings Inc.), Indenture (Iqvia Holdings Inc.), Indenture (Iqvia Holdings Inc.)
Reports and Other Information. (a) Notwithstanding that the Issuer Holdings III may not be subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act or that Holdings III does not otherwise report on an annual and quarterly basis on forms provided for such annual and quarterly reporting pursuant to rules and regulations promulgated by the SEC, Holdings III shall file with the Issuer shall furnish SEC (and make available to the Trustee and Holders of the Notes (without exhibits) or post on its website (which may be password protected so long as the password is made promptly available by the Issuer ), without cost to the Holdersany Holder, research analysts and prospective purchasers upon request) no later than within 15 days after it files them with the dates specified below:SEC) from and after the Issue Date,
(1) within 90 days (or any other time period then in effect under the rules and regulations of the Exchange Act with respect to the filing of a Form 10-K by a non-accelerated filer) after the end of each fiscal year (beginning with the fiscal year ending after the Issue Date)year, annual reports on Form 10-K, or any successor or comparable form, containing substantially all of the information required to be contained therein, or required in an Annual Report on Form 10-K if the Issuer had been a reporting company under the Exchange Act (but only to the extent similar information is included in the Offering Memorandum); provided, that the Issuer shall not be required to provide the information otherwise required to be presented by reporting companies under the Exchange Act pursuant to Part III of Form 10-K except for such information as would be required by Item 401 of Regulation S-K (other than the information required by subsections (c) and (g) of such item), Item 403(a) of Regulation S-K and Item 404 of Regulation S-K (assuming a transaction threshold of $2,500,000 rather than $120,000 and other than information with respect to employment and compensation arrangements and the information required by Item 404(b))successor or comparable form;
(2) within 45 days (or any other time period then in effect under the rules and regulations of the Exchange Act with respect to the filing of a Form 10-Q by a non-accelerated filer) after the end of each of the first three fiscal quarters of each fiscal year, reports on Form 10-Q containing substantially all of the quarterly information that would be required to be contained in a Quarterly Report on Form 10-Q if Q, or any successor or comparable form;
(3) promptly from time to time after the Issuer had been a reporting company under the Exchange Act (but only occurrence of an event required to the extent similar information is included in the Offering Memorandum)be therein reported, such other reports on Form 8-K, or any successor or comparable form; and
(34) within any other information, documents and other reports which Holdings III would be required to file with the later of 15 days after the occurrence SEC if it were subject to Section 13 or 15(d) of the Exchange Act; in each case, in a manner that complies in all material respects with the requirements specified event or within five in such form (5) Business Days of assuming Holdings III were a U.S. person with only unsecured debt registered under the date on which an event would have been required to be reported on a Form 8-K (as in effect on the Issue Date), information pursuant to Items 1.01 (Entry into a Material Definitive Agreement), 1.02 (Termination of a Material Definitive Agreement), 1.03 (Bankruptcy or Receivership), 2.01 (Completion of Acquisition or Disposition of Assets), 2.04 (Triggering Events that Accelerate or Increase a Direct Financial Obligation or an Obligation under an Off-Balance Sheet Arrangement), 2.06 (Material Impairment), 4.01 (Changes in Registrant’s Certifying Accountants), 4.02 (Non-Reliance on Previously Issued Financial Statements or a Related Audit Report or Completed Interim Review), 5.01 (Changes in Control of Registrant), 5.02(a), (b) or (c) (Departure of Directors or Principal Officers; Election of Directors; Appointment of Principal Officers; Compensation Arrangements of Certain Officers) (other than any information relating to compensation arrangements with any directors or officers) and 9.01(a) (Financial Statements and Exhibits) (but only with respect to historical financial statements relating to transactions required to be reported pursuant to Item 2.01 and involving acquisitions of Persons that had revenues in excess of $500,000,000 for the last four completed fiscal quarters prior to the consummation of the acquisition) of a Current Report on Form 8-K (as in effect of the Issue DateSecurities Act); provided, that (a) no Holdings III shall not be so obligated to file such report or reports with the SEC if the SEC does not permit such filing, in which event Holdings III will make available such information will to prospective purchasers of Notes, in addition to providing such information to the Trustee and the Holders of the Notes, in each case within 15 days after the time Holdings III would be required to be so furnished if the Issuer determines in good faith that file such event is not material to the Holders or the business, assets, operations or financial condition of the Issuer and its Restricted Subsidiaries, taken as a whole and (b) trade secrets and other confidential information that is competitively sensitive in the good faith and reasonable determination of the Issuer may be excluded from disclosures.
(b) The reports required pursuant to clauses (1), (2) and (3) of Section 4.03(a) will not be required to comply with (i) Section 302, Section 404 or Section 906 of the Xxxxxxxx-Xxxxx Act of 2002, (ii) related Items 307 and 308 of Regulation S-K promulgated by the SEC, (iii) Item 10(eif it were subject to Sections 13 or 15(d) of Regulation S-K (with respect to any non-GAAP financial measures contained therein) or any comparable successor provision and (iv) Regulation S-X Rule 3-10.
(c) So long as any Notes are outstanding, the Issuer will also:
(1) issue a press release to an internationally recognized wire service no fewer than three Business Days prior to the delivery or posting of the annual and quarterly reports required by clauses (1) and (2) of Section 4.03(a) announcing the date on which such reports will be made available to the Holders and directing Holders, research analysts and prospective purchasers to contact the investor relations office of the Issuer to obtain copies Exchange Act. Delivery of such reports;
, information and documents to the Trustee is for informational purposes only and the Trustee’s receipt of such shall not constitute constructive notice of any information contained therein, including compliance with any of the covenants hereunder (2) maintain a website (which may be password protected so long as the password is made promptly available by the Issuer to Holders, research analysts and prospective purchasers) to which all of the reports and press releases required by this Section 4.03 are posted; and
(3) host and participate in customary quarterly conference calls (which may be a single conference call together with investors holding other securities of the Issuer and/or its Restricted Subsidiaries and/or any direct or indirect parent of the Issuer) Trustee is entitled to discuss operating results and related mattersrely exclusively on Officer’s Certificates). The Issuer shall issue a press release which will provide the date and time of any such call and will direct Holders, prospective purchasers and research analysts to contact the investor relations office of the Issuer to obtain access to the conference call; provided, that the Issuer shall not be required to undertake the actions set forth in clauses (1), (2) and (3) of this Section 4.03(c) at any time that the Issuer or any direct or indirect parent thereof is otherwise undertaking similar actions on behalf of, and making similar information available to, investors holding other securities of the Issuer or any direct or indirect parent thereof; provided, further, that such information described in the immediately preceding proviso is made available to the Holders.
(d) In addition, to the extent not satisfied by the foregoing, the Issuer will, for so long as any Notes are outstanding, Holdings III shall furnish to Holders and to securities analysts and prospective purchasersinvestors, upon their request, the information required to be delivered pursuant to Rule 144A(d)(4) under the Securities Act.
(eb) The Issuer may For so long as Parent, Holdings II or any other direct or indirect parent company of Holdings III is a Guarantor, Holdings III shall be permitted to satisfy its obligations in under this Section 4.03 with respect to financial information relating to the Issuer Holdings III by furnishing financial information relating to a direct Parent, Holdings II or indirect parent companysuch other parent; provided that, if and for so long as such parent company shall have Independent Assets or Operations (as defined below), that the same is accompanied by consolidating information that explains in reasonable detail the differences between the information relating to Parent, Holdings II or such parent companyother parent, on the one hand, and the information relating to the Issuer Holdings III and its Restricted Subsidiaries on a stand-alone standalone basis, on the other hand. “Independent Assets or Operations” meanshand or, with respect to any such parent companyat Holdings III’s option, that such parent company’s total assets, revenues, income from continuing operations before income taxes and cash flows from operating activities (excluding in each case amounts related to its investment substantially in the Issuer form required by Rule 3-10(d) of Regulation S-X or any successor thereto. Notwithstanding anything in Section 4.03(a) to the contrary, Holdings III shall be deemed to have satisfied all its obligations under Section 4.03(a) without any further action so long as (i) the Company is a Guarantor, (ii) the shares of NXP Holdings are listed on a national securities exchange and (iii) NXP Holdings complies with all of its reporting obligations applicable to it under the Exchange Act within the time periods applicable pursuant to the Exchange Act.
(c) Holdings III will be deemed to have furnished reports required to be delivered under this Section 4.03 to the Trustee and the Restricted Subsidiaries)Holders if it has filed such reports with the SEC using the Xxxxx filing system and such reports are publicly available without charge.
(d) Notwithstanding anything herein to the contrary, determined in accordance Holdings III will not be deemed to have failed to comply with GAAP and as shown on any of its obligations under this Section 4.03 for purposes of clause (3) under Section 6.01 until 120 days after the most recent balance sheet of such parent company, date any report is more than 3.0% of such parent company’s corresponding consolidated amountdue under this Section 4.03.
Appears in 3 contracts
Samples: Indenture (NXP Semiconductors N.V.), Indenture (Freescale Semiconductor, Ltd.), First Supplemental Indenture (Freescale Semiconductor, Ltd.)
Reports and Other Information. (a) Notwithstanding that Following the Issuer may not be subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act or otherwise report on an annual Issue Date and quarterly basis on forms provided for such annual and quarterly reporting pursuant to rules and regulations promulgated by the SECso long as any Notes are outstanding, the Issuer shall furnish to the Trustee and Holders of the Notes (without exhibits) or post on its website (which may be password protected so long as the password is made promptly available by the Issuer to the Holders, research analysts and prospective purchasers upon request) no later than 15 days after the dates specified below:
(1) within 90 days after the end of each fiscal year (beginning with the fiscal year ending after the Issue Date), x) all annual reports containing and quarterly financial statements substantially all of the information in forms that would be required to be contained in an Annual Report a filing with the SEC on Form Forms 10-K and 10-Q of the Issuer, if the Issuer had been were required to file such forms, plus a reporting company under the Exchange Act “Management’s Discussion and Analysis of Financial Condition and Results of Operations,” (but only y) with respect to the extent similar information is included annual and quarterly information, a presentation of EBITDA and Consolidated EBITDA of the Issuer substantially consistent with the presentation thereof in the Offering Memorandum)Memorandum and derived from such financial information, and (z) with respect to the annual financial statements only, a report on the annual financial statements by the Issuer’s independent registered public accounting firm; providedand
(2) within 10 Business Days after the occurrence of an event required to be therein reported, such other information containing substantially the same information that the Issuer shall not would be required to provide be contained in filings with the SEC on Form 8-K under Items 1.01, 1.02, 1.03, 2.01 (which, with respect to acquisitions, shall be only with respect to acquisitions that are “significant” pursuant to clauses (1) and (2) of the definition of “Significant Subsidiary” under Rule 1-02 of Regulation S-X), 2.05, 2.06, 4.01, 4.02, 5.01 and 5.02(b) (only with respect to the principal executive officer, president, principal financial officer, principal accounting officer and principal operating officer) and 5.02(c) (other than with respect to information otherwise required to be presented by reporting companies under the Exchange Act pursuant to Part III of Form 10-K except for such information as would be required or contemplated by Item 401 402 of Regulation S-K promulgated by the SEC) as in effect on the Issue Date if the Issuer were required to file such reports; provided, however, that no such current report shall be required to include as an exhibit, or to include a summary of the terms of, any employment or compensatory arrangement agreement, plan or understanding between the Issuer (or any of its Subsidiaries) and any director, manager or executive officer, of the Issuer (or any of its Subsidiaries); provided, however, that (i) in no event shall such information or reports be required to comply with Rule 3-10 of Regulation S-X promulgated by the SEC or contain separate financial statements for the Issuer, the Guarantors or other than Subsidiaries the shares of which are pledged to secure the Notes or any Guarantee that would be required under (a) Section 3-09 of Regulation S-X to the extent that the Issuer determines in its good faith judgment that such information required by subsections would not be material to the Holders or the business, assets, operations, financial positions or prospects of the Issuer and its Restricted Subsidiaries, (b) Section 3-10 of Regulation S-X or (c) and Section 3-16 of Regulation S-X, respectively, promulgated by the SEC, (gii) of in no event shall such item), information or reports be required to comply with Regulation G under the Exchange Act or Item 403(a10(e) of Regulation S-K and Item 404 of Regulation S-K (assuming a transaction threshold of $2,500,000 rather than $120,000 and other than information promulgated by the SEC with respect to employment and compensation arrangements and the any non- GAAP financial measures contained therein, (iii) no such information required by Item 404(b));
or reports referenced under clause (2) within 45 days after the end of each of the first three fiscal quarters of each fiscal year, reports containing substantially all of the information required to be contained in a Quarterly Report on Form 10-Q if the Issuer had been a reporting company under the Exchange Act (but only to the extent similar information is included in the Offering Memorandum); and
(3) within the later of 15 days after the occurrence of the specified event or within five (5) Business Days of the date on which an event would have been required to be reported on a Form 8-K (as in effect on the Issue Date), information pursuant to Items 1.01 (Entry into a Material Definitive Agreement), 1.02 (Termination of a Material Definitive Agreement), 1.03 (Bankruptcy or Receivership), 2.01 (Completion of Acquisition or Disposition of Assets), 2.04 (Triggering Events that Accelerate or Increase a Direct Financial Obligation or an Obligation under an Off-Balance Sheet Arrangement), 2.06 (Material Impairment), 4.01 (Changes in Registrant’s Certifying Accountants), 4.02 (Non-Reliance on Previously Issued Financial Statements or a Related Audit Report or Completed Interim Review), 5.01 (Changes in Control of Registrant), 5.02(a), (b) or (c) (Departure of Directors or Principal Officers; Election of Directors; Appointment of Principal Officers; Compensation Arrangements of Certain Officers) (other than any information relating to compensation arrangements with any directors or officers) and 9.01(a) (Financial Statements and Exhibits) (but only with respect to historical financial statements relating to transactions required to be reported pursuant to Item 2.01 and involving acquisitions of Persons that had revenues in excess of $500,000,000 for the last four completed fiscal quarters prior to the consummation of the acquisition) of a Current Report on Form 8-K (as in effect of the Issue Date); provided, that (a) no such report or information will above shall be required to be so furnished if the Issuer determines in its good faith judgment that such event is not material to the Holders or the business, assets, operations or financial condition position of the Issuer and its Restricted Subsidiaries, taken as a whole and whole, (biv) trade secrets and other confidential in no event shall such information or reports be required to include any information that is competitively sensitive not otherwise similar to information currently included in the good faith Offering Memorandum, other than with respect to information or reports provided under clause (2) above and reasonable determination (v) in no event shall information or reports referenced in clause (2) above be required to include as an exhibit copies of any agreements, financial statements or other items that would be required to be filed as exhibits to a current report on Form 8-K except for (x) agreements evidencing material Indebtedness and (y) historical and pro forma financial statements to the extent reasonably available and, in any case with respect to pro forma financial statements, to include only pro forma revenues, Consolidated EBITDA and capital expenditures in lieu thereof. All such annual information and reports shall be furnished within 90 days after the end of the fiscal year to which they relate, and all such quarterly information and reports shall be furnished within 45 days after the end of the fiscal quarter to which they relate. At any time that any of the Issuer’s Subsidiaries are Unrestricted Subsidiaries and if any such Unrestricted Subsidiary or group of Unrestricted Subsidiaries, if taken together as one Subsidiary, would constitute a Significant Subsidiary of the Issuer, then the quarterly and annual financial information required by the preceding paragraph will include a reasonably detailed presentation, either on the face of the financial statements or in the footnotes thereto, in the “Management’s Discussion and Analysis of Financial Condition and Results of Operations” or other comparable section, of the financial condition and results of operations of the Issuer and Restricted Subsidiaries separate from the financial condition and results of operations of such Unrestricted Subsidiaries of the Issuer. The Issuer shall make available such information and such reports (as well as the details regarding the conference call described below) to any Holder and, upon request, to any beneficial owner of the Notes, in each case by posting such information and reports on its website, on Intralinks or any comparable password-protected online data system which shall require a confidentiality acknowledgment, and shall make such information and reports readily available to any Holder, any prospective investor in the Notes, any securities analyst (to the extent providing analysis of investment in the notes) or any market maker in the Notes who agrees to treat such information and reports as confidential or accesses such information and reports on Intralinks or any comparable password-protected online data system which shall require a confidentiality acknowledgment; provided that the Issuer shall post such information and reports thereon and make readily available any password or other login information to any such Holder, bona fide prospective investor, securities analyst or market maker; provided, further, however, that the Issuer may deny access to any competitively-sensitive information and reports otherwise to be excluded from disclosuresprovided pursuant to this paragraph to any such Holder, prospective investor, security analyst or market maker that is a competitor of the Issuer and its Subsidiaries to the extent that the Issuer determines in good faith that the provision of such information and reports to such Person would be competitively harmful to the Issuer and its Subsidiaries; and provided, further, that such Holders, prospective investors, security analysts or market makers shall agree to (i) treat all such reports (and the information contained therein) and information as confidential, (ii) not use such reports and the information contained therein for any purpose other than their investment or potential investment in the Notes and (iii) not publicly disclose any such reports (and the information contained therein). The Issuer (or a Parent Entity) shall hold a quarterly conference call for all Holders and securities analysts (to the extent providing analysis of investment in the Notes) to discuss such financial information (including a customary Q&A session) no later than ten Business Days after distribution of such financial information.
(b) The reports required pursuant Issuer shall provide S&P and Xxxxx’x (and their respective successors) with information on a periodic basis as S&P or Xxxxx’x, as the case may be, shall reasonably require in order to clauses (1), (2) and (3) of Section 4.03(a) will not be required to comply with (i) Section 302, Section 404 or Section 906 maintain public ratings of the Xxxxxxxx-Xxxxx Act of 2002, (ii) related Items 307 and 308 of Regulation S-K promulgated by the SEC, (iii) Item 10(e) of Regulation S-K (with respect to any non-GAAP financial measures contained therein) or any comparable successor provision and (iv) Regulation S-X Rule 3-10.
(c) So long as any Notes are outstanding, the Issuer will also:
(1) issue a press release to an internationally recognized wire service no fewer than three Business Days prior to the delivery or posting of the annual and quarterly reports required by clauses (1) and (2) of Section 4.03(a) announcing the date on which such reports will be made available to the Holders and directing Holders, research analysts and prospective purchasers to contact the investor relations office of the Issuer to obtain copies of such reports;
(2) maintain a website (which may be password protected so long as the password is made promptly available by the Issuer to Holders, research analysts and prospective purchasers) to which all of the reports and press releases required by this Section 4.03 are posted; and
(3) host and participate in customary quarterly conference calls (which may be a single conference call together with investors holding other securities of the Issuer and/or its Restricted Subsidiaries and/or any direct or indirect parent of the Issuer) to discuss operating results and related mattersNotes. The Issuer shall issue a press release which will provide the date and time of any such call and will direct Holders, prospective purchasers and research analysts to contact the investor relations office of the Issuer to obtain access to the conference call; provided, that the Issuer shall not be required to undertake the actions set forth in clauses (1), (2) and (3) of this Section 4.03(c) at any time that the Issuer or any direct or indirect parent thereof is otherwise undertaking similar actions on behalf of, and making similar information available to, investors holding other securities of the Issuer or any direct or indirect parent thereof; provided, further, that such information described in the immediately preceding proviso is made available to the Holders.
(d) In addition, to the extent not satisfied by the foregoing, the Issuer will, for so long as any Notes are outstanding, shall furnish to Holders and to prospective purchasersinvestors, upon their request, the any information required to be delivered pursuant to Rule 144A(d)(4) under the Securities Act so long as the Notes are not freely transferable under the Securities Act.
(ec) The Issuer may satisfy its obligations in under this Section 4.03 10.09 with respect to financial information relating to the Issuer by furnishing financial and other information relating to a any Parent Entity instead of the Issuer; provided that to the extent such Parent Entity holds assets (other than its direct or indirect parent company; provided thatinterest in the Issuer) that exceeds the lesser of (i) 1.0% of consolidated revenues of such Parent Entity and (ii) 1.0% of the total consolidated revenue for the preceding fiscal year of such Parent Entity, if and for so long as then such parent company information related to such Parent Entity shall have Independent Assets or Operations (as defined below), the same is be accompanied by consolidating information information, which may be unaudited, that explains in reasonable detail the differences between the information relating to of such parent companyParent Entity, on the one hand, and the information relating to the Issuer and its Restricted Subsidiaries on a stand-alone basis, on the other hand.
(d) The Issuer shall be deemed to have furnished the financial statements and other information referred to in Section 10.09(a)(1) and (2) if the Issuer or any Parent Entity has filed reports containing such information with the SEC. “Independent Assets or Operations” meansTo the extent any information is not provided within the time periods specified in this Section 10.09 and such information is subsequently provided, the Issuer shall be deemed to have satisfied its obligations with respect thereto at such time and any Default with respect thereto shall be deemed to any such parent company, that such parent company’s total assets, revenues, income from continuing operations before income taxes and cash flows from operating activities (excluding in each case amounts related have been cured. The Trustee shall have no responsibility to its investment in determine if the Issuer and has filed any statements or information with the Restricted Subsidiaries), determined in accordance with GAAP and as shown SEC or posted such statements or information on the most recent balance sheet of such parent company, is more than 3.0% of such parent company’s corresponding consolidated amountits website or Intralinks or any comparable password-protected online data system.
Appears in 3 contracts
Samples: Indenture (Mr. Cooper Group Inc.), Indenture (Mr. Cooper Group Inc.), Indenture (Mr. Cooper Group Inc.)
Reports and Other Information. (a) Notwithstanding that neither the Issuer nor Holdings may not be subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act or otherwise report on an annual and quarterly basis on forms provided for such annual and quarterly reporting pursuant to rules and regulations promulgated by the SEC, each of the Issuer and Holdings shall furnish to the Trustee and Holders of the Notes (without exhibits) or post on its website (which may be password protected so long as the password is made promptly available by the Issuer or Holdings, as applicable, to the Holders, research analysts and prospective purchasers upon request) no later than 15 days after the dates specified below:
(1) within 90 days after the end of each fiscal year (beginning with the fiscal year ending after the Issue Date), annual reports containing substantially all of the information required to be contained in an Annual Report on Form 10-K if the Issuer or Holdings had been a reporting company under the Exchange Act (but only to the extent similar information is included in the Offering Memorandum); provided, that neither the Issuer nor Holdings shall not be required to provide the information otherwise required to be presented by reporting companies under the Exchange Act pursuant to Part III of Form 10-K except for such information as would be required by Item 401 of Regulation S-K (other than the information required by subsections (c) and (g) of such item), Item 403(a) of Regulation S-K and Item 404 of Regulation S-K (assuming a transaction threshold of $2,500,000 rather than $120,000 and other than information with respect to employment and compensation arrangements and the information required by Item 404(b));
(2) within 45 days after the end of each of the first three fiscal quarters of each fiscal year, reports containing substantially all of the information required to be contained in a Quarterly Report on Form 10-Q if either the Issuer or Holdings had been a reporting company under the Exchange Act (but only to the extent similar information is included in the Offering Memorandum); and
(3) within the later of 15 days after the occurrence of the specified event or within five (5) Business Days of the date on which an event would have been required to be reported on a Form 8-K (as in effect on the Issue Date), information pursuant to Items 1.01 (Entry into a Material Definitive Agreement), 1.02 (Termination of a Material Definitive Agreement), 1.03 (Bankruptcy or Receivership), 2.01 (Completion of Acquisition or Disposition of Assets), 2.04 (Triggering Events that Accelerate or Increase a Direct Financial Obligation or an Obligation under an Off-Balance Sheet Arrangement), 2.06 (Material Impairment), 4.01 (Changes in Registrant’s Certifying Accountants), 4.02 (Non-Reliance on Previously Issued Financial Statements or a Related Audit Report or Completed Interim Review), 5.01 (Changes in Control of Registrant), 5.02(a), (b) or (c) (Departure of Directors or Principal Officers; Election of Directors; Appointment of Principal Officers; Compensation Arrangements of Certain Officers) (other than any information relating to compensation arrangements with any directors or officers) and 9.01(a) (Financial Statements and Exhibits) (but only with respect to historical financial statements relating to transactions required to be reported pursuant to Item 2.01 and involving acquisitions of Persons that had revenues in excess of $500,000,000 for the last four completed fiscal quarters prior to the consummation of the acquisition) of a Current Report on Form 8-K (as in effect of the Issue Date); provided, that (a) no such report or information will be required to be so furnished if the Issuer or Holdings, as applicable, determines in good faith that such event is not material to the Holders or the business, assets, operations or financial condition of the Issuer or Holdings, as applicable, and its such Person’s Restricted Subsidiaries, taken as a whole and (b) trade secrets and other confidential information that is competitively sensitive in the good faith and reasonable determination of the Issuer may be excluded from disclosures.
(b) The reports required pursuant to clauses (1), (2) and (3) of Section 4.03(a) will not be required to comply with (i) Section 302, Section 404 or Section 906 of the Xxxxxxxx-Xxxxx Act of 2002, (ii) related Items 307 and 308 of Regulation S-K promulgated by the SEC, (iii) Item 10(e) of Regulation S-K (with respect to any non-GAAP financial measures contained therein) or any comparable successor provision and (iv) Regulation S-X Rule 3-10.
(c) So long as any Notes are outstanding, the Issuer will also:
(1) issue a press release to an internationally recognized wire service no fewer than three Business Days prior to the delivery or posting of the annual and quarterly reports required by clauses (1) and (2) of Section 4.03(a) announcing the date on which such reports will be made available to the Holders and directing Holders, research analysts and prospective purchasers to contact the investor relations office of the Issuer to obtain copies of such reports;
(2) maintain a website (which may be password protected so long as the password is made promptly available by the Issuer to Holders, research analysts and prospective purchasers) to which all of the reports and press releases required by this Section 4.03 are posted; and
(3) host and participate in customary quarterly conference calls (which may be a single conference call together with investors holding other securities of the Issuer and/or its Restricted Subsidiaries and/or any direct or indirect parent of the Issuer) to discuss operating results and related matters. The Issuer shall issue a press release which will provide the date and time of any such call and will direct Holders, prospective purchasers and research analysts to contact the investor relations office of the Issuer to obtain access to the conference call; provided, that the Issuer shall not be required to undertake the actions set forth in clauses (1), (2) and (3) of this Section 4.03(c) at any time that the Issuer or any direct or indirect parent thereof is otherwise undertaking similar actions on behalf of, and making similar information available to, investors holding other securities of the Issuer or any direct or indirect parent thereof; provided, further, that such information described in the immediately preceding proviso is made available to the Holders.
(d) In addition, to the extent not satisfied by the foregoing, the Issuer will, for so long as any Notes are outstanding, furnish to Holders and to prospective purchasers, upon their request, the information required to be delivered pursuant to Rule 144A(d)(4) under the Securities ActAct and the Issuer shall also comply with the provisions of the Trust Indenture Act Section 314(a).
(e) The Each of the Issuer and Holdings may satisfy its obligations in this Section 4.03 with respect to financial information relating to the Issuer or Holdings, as applicable, by furnishing financial information relating to a direct or indirect parent company; provided that, if and for so long as such parent company shall have Independent Assets or Operations (as defined below), the same is accompanied by consolidating information that explains in reasonable detail the differences between the information relating to such parent company, on the one hand, and the information relating to the Issuer and its Restricted Subsidiaries on a stand-alone basis, on the other hand. “Independent Assets or Operations” means, with respect to any such parent company, that such parent company’s total assets, revenues, income from continuing operations before income taxes and cash flows from operating activities (excluding in each case amounts related to its investment in the Issuer and the Restricted Subsidiaries), determined in accordance with GAAP and as shown on the most recent balance sheet of such parent company, is more than 3.0% of such parent company’s corresponding consolidated amount.
Appears in 2 contracts
Samples: Indenture (Benefit Holding, Inc.), Indenture (Benefit Holding, Inc.)
Reports and Other Information. (a) Notwithstanding that the Issuer may not be subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act or otherwise report on an annual and quarterly basis on forms provided for such annual and quarterly reporting pursuant to rules and regulations promulgated by the SECSo long as any Notes are outstanding, the Issuer shall furnish to the Trustee and Holders of the Notes (without exhibits) or post on its website (which may be password protected so long as the password is made promptly available by the Issuer to the Holders, research analysts and prospective purchasers upon request) no later than 15 days after the dates specified below:
(1) within 90 days after the end of each fiscal year (beginning with the fiscal year ending after the Issue Date), x) all annual reports containing and quarterly financial statements substantially all of the information in forms that would be required to be contained in an Annual Report a filing with the SEC on Form Forms 10-K and 10-Q of the Issuer, if the Issuer had been were required to file such forms, plus a reporting company under the Exchange Act “Management’s Discussion and Analysis of Financial Condition and Results of Operations,” (but only y) with respect to the extent similar information is included annual and quarterly information, a presentation of Adjusted EBITDA of the Issuer substantially consistent with the presentation thereof in the Offering Memorandum)Circular and derived from such financial information, and (z) with respect to the annual financial statements only, a report on the annual financial statements by the Issuer’s independent registered public accounting firm; providedand
(2) within 10 Business Days after the occurrence of an event required to be therein reported, such other information containing substantially the same information that the Issuer shall not would be required to provide be contained in filings with the SEC on Form 8-K under Items 1.01, 1.02, 1.03, 2.01, 2.05, 2.06, 4.01, 4.02, 5.01 and 5.02(b) and (c) (other than with respect to information otherwise required to be presented by reporting companies under the Exchange Act pursuant to Part III of Form 10-K except for such information as would be required or contemplated by Item 401 402 of Regulation S-K promulgated by the SEC) as in effect on the Issue Date if the Issuer were required to file such reports; provided, however, that no such current report shall be required to include as an exhibit, or to include a summary of the terms of, any employment or compensatory arrangement agreement, plan or understanding between the Issuer (other than the information required by subsections (cor any of its Subsidiaries) and any director, member, partner, manager or executive officer, of the Issuer (gor any of its Subsidiaries); provided, however, that (i) in no event shall such financial statements or reports be required to comply with (x) Rule 3-10 of Regulation S-X promulgated by the SEC (or such itemother rule or regulation that amends, supplements or replaces such Rule 3-10, including for the avoidance of doubt, Rules 13-01 or 13-02 of Regulation S-X promulgated by the SEC), (x) Rule 3-09 of Regulation S-X (or such other rule or regulation that amends, supplements or replaces such Rule 3-09), (y) Rule 3-16 of Regulation S-X (or such other rule or regulation that amends, supplements or replaces such Rule 3-16 or (z) any requirement to otherwise include any schedules or separate financial statements of any of Subsidiaries of the Issuer or any Parent Entity, Affiliates or equity method investees, (ii) in no event shall such financial statements or reports be required to comply with Regulation G under the Exchange Act or Item 403(a10(e) of Regulation S-K and Item 404 of Regulation S-K (assuming a transaction threshold of $2,500,000 rather than $120,000 and other than information promulgated by the SEC with respect to employment and compensation arrangements and the information required by Item 404(b));
any non-GAAP financial measures contained therein, (2iii) within 45 days after the end of each of the first three fiscal quarters of each fiscal year, in no event shall such financial statements or reports containing substantially all of the information be required to be contained in a Quarterly Report on Form 10-Q if the Issuer had been a reporting company under the Exchange Act (but only include any information that is not otherwise similar to the extent similar information is currently included in the Offering Memorandum); and
(3) within the later of 15 days after the occurrence of the specified event or within five (5) Business Days of the date on which an event would have been required to be reported on a Form 8-K (as in effect on the Issue Date)Circular, information pursuant to Items 1.01 (Entry into a Material Definitive Agreement), 1.02 (Termination of a Material Definitive Agreement), 1.03 (Bankruptcy or Receivership), 2.01 (Completion of Acquisition or Disposition of Assets), 2.04 (Triggering Events that Accelerate or Increase a Direct Financial Obligation or an Obligation under an Off-Balance Sheet Arrangement), 2.06 (Material Impairment), 4.01 (Changes in Registrant’s Certifying Accountants), 4.02 (Non-Reliance on Previously Issued Financial Statements or a Related Audit Report or Completed Interim Review), 5.01 (Changes in Control of Registrant), 5.02(a), (b) or (c) (Departure of Directors or Principal Officers; Election of Directors; Appointment of Principal Officers; Compensation Arrangements of Certain Officers) (other than any information relating to compensation arrangements with any directors or officers) and 9.01(a) (Financial Statements and Exhibits) (but only with respect to historical financial statements relating to transactions required to be reported pursuant to Item 2.01 and involving acquisitions of Persons that had revenues in excess of $500,000,000 for the last four completed fiscal quarters prior to the consummation of the acquisitionreports provided under clause (2) of a Current Report on Form 8-K above, (as in effect of the Issue Date); provided, that (aiv) no such report or information will reports referenced under clause (2) above shall be required to be so furnished if the Issuer determines in its good faith judgment that such event is not material to the Holders or the business, assets, operations or financial condition position of the Issuer and its Restricted Subsidiaries, taken as a whole whole, and (bv) trade secrets in no event shall reports referenced in clause (2) above be required to include as an exhibit copies of any agreements, financial statements or other items that would be required to be filed as exhibits to a current report on Form 8-K except for (x) agreements evidencing material Indebtedness and other confidential (y) historical and pro forma financial information that is competitively sensitive to the extent reasonably available and, in the good faith any case with respect to such pro forma financial information, such pro forma financial information shall include only pro forma revenues, Consolidated EBITDA and reasonable determination of the Issuer may be excluded from disclosurescapital expenditures in lieu thereof.
(b) The All such annual reports shall be furnished within 90 days after the end of the fiscal year to which they relate, and all such quarterly reports shall be furnished within 45 days after the end of the fiscal quarter to which they relate.
(c) At any time that any of the Issuer’s Subsidiaries are Unrestricted Subsidiaries and if any such Unrestricted Subsidiary or group of Unrestricted Subsidiaries, if taken together as one Subsidiary, would constitute a Significant Subsidiary of the Issuer, then the quarterly and annual financial information required pursuant to clauses (1)by the preceding paragraph will include a reasonably detailed presentation, (2) and (3) of Section 4.03(a) will not be required to comply with either (i) Section 302, Section 404 or Section 906 on the face of the Xxxxxxxx-Xxxxx Act of 2002financial statements or in the footnotes thereto, (ii) related Items 307 in “Management’s Discussion and 308 Analysis of Regulation S-K promulgated by the SEC, Financial Condition and Results of Operations” or (iii) Item 10(ein any other comparable section, of the financial condition and results of operations of the Issuer and Restricted Subsidiaries separate from the financial condition and results of operations of such Unrestricted Subsidiaries of the Issuer.
(d) of Regulation S-K The Issuer shall make available such information and such reports (with respect as well as the details regarding the conference call described in Section 4.03(e)(1)) to any nonHolder and, upon request, to any beneficial owner of the Notes, in each case by posting such information on its website, on Intralinks or any comparable password-GAAP financial measures protected online data system which will require a confidentiality acknowledgment, and will make such information readily available to any Holder, any bona fide prospective investor in the Notes, any securities analyst (to the extent providing analysis of investment in the Notes) or any market maker in the Notes who agrees to treat such information as confidential or accesses such information on Intralinks or any comparable password-protected online data system which will require a confidentiality acknowledgment; provided that the Issuer shall post such information thereon and make readily available any password or other login information to any such Holder, bona fide prospective investor, securities analyst or market maker; provided, further, however, that the Issuer may deny access to any competitively-sensitive information otherwise to be provided pursuant to this Section 4.03 to any such Holder, prospective investor, security analyst or market maker that is a competitor of the Issuer and its Subsidiaries to the extent that the Issuer determines in good faith that the provision of such information to such Person would be competitively harmful to the Issuer and its Subsidiaries; and provided, further, that such Holders, bona fide prospective investors, security analysts or market makers shall agree to (i) treat all such reports (and the information contained therein) and information as confidential, (ii) not use such reports and the information contained therein for any purpose other than their investment or any comparable successor provision potential investment in the Notes and (iviii) Regulation S-X Rule 3-10not publicly disclose any such reports (and the information contained therein).
(ce) So long as any Notes are outstanding, the Issuer will (or a Parent Entity) shall also:
(1) as promptly as reasonably practicable after furnishing to the Trustee each annual and quarterly report required by clause (1) of Section 4.03(a) or such earlier time after the completion of such reporting period, hold a conference call to discuss the results of operations for the relevant reporting period (which conference call, for the avoidance of doubt, may be held prior to such time that the annual or quarterly financial statements required by the first paragraph of this “Reports and Other Information” covenant for such reporting period are furnished to Holders so long as an earnings release for the applicable period has been furnished or otherwise made available to the Holders prior to the conference call) and may be the same as any call for the Issuer’s or any Parent Entity’s equity holders; and
(2) issue a press release to an internationally the appropriate nationally recognized wire service no fewer than three Business Days services prior to the delivery or posting date of the annual and quarterly reports conference call required by clauses to be held in accordance with clause (1) and (2) of Section 4.03(a) announcing the date on which such reports will be made available to the Holders and directing Holders, research analysts and prospective purchasers to contact the investor relations office of the Issuer to obtain copies of such reports;
(2) maintain a website (which may be password protected so long as the password is made promptly available by the Issuer to Holders, research analysts and prospective purchasers) to which all of the reports and press releases required by this Section 4.03 are posted; and
(3) host and participate in customary quarterly conference calls (which may be a single conference call together with investors holding other securities of the Issuer and/or its Restricted Subsidiaries and/or any direct or indirect parent of the Issuer) to discuss operating results and related matters. The Issuer shall issue a press release which will provide the date and time of any such call and will direct Holders, prospective purchasers and research analysts to contact the investor relations office of the Issuer to obtain access to the conference call; provided, that the Issuer shall not be required to undertake the actions set forth in clauses (1), (2) and (3) of this Section 4.03(c) at any 4.03(e), announcing the time that and date of such conference call and either including all information necessary to access the Issuer call or any direct or indirect parent thereof is otherwise undertaking similar actions on behalf ofinforming Holders, beneficial owners, prospective investors, market makers and making similar information available to, investors holding other securities of the Issuer or any direct or indirect parent thereof; provided, further, that analysts how they can obtain such information described in the immediately preceding proviso is made available to the Holdersinformation.
(df) In addition, to the extent not satisfied by the foregoing, the Issuer will, for so long as any Notes are outstanding, shall furnish to Holders and to prospective purchasersinvestors, upon their request, the any information required to be delivered pursuant to Rule 144A(d)(4) under the Securities Act so long as the Notes are not freely transferable under the Securities Act.
(eg) The Issuer may satisfy its obligations in under this Section 4.03 with respect to financial information relating to the Issuer by furnishing financial and other information relating to a any Parent Entity instead of the Issuer; provided that to the extent such Parent Entity holds assets (other than its direct or indirect parent company; provided thatinterest in the Issuer) that exceeds the lesser of (i) 1.0% of revenues of such Parent Entity and (ii) 1.0% of the total revenue for the preceding fiscal year of such Parent Entity, if and for so long as then such parent company information related to such Parent Entity shall have Independent Assets or Operations (as defined below), the same is be accompanied by consolidating information information, which may be unaudited, that explains in reasonable detail the differences between the information relating to of such parent companyParent Entity, on the one hand, and the information relating to the Issuer and its Restricted Subsidiaries on a stand-alone basis, on the other hand. “Independent Assets Delivery of such reports, information and documents to the Trustee is for informational purposes only and the Trustee’s receipt of such shall not constitute actual or Operations” meansconstructive knowledge or notice of any information contained therein or determinable from information contained therein, including the Issuer’s compliance with respect any of its covenants hereunder (as to which the Trustee is entitled to rely exclusively on Officer’s Certificates).
(h) The Issuer will be deemed to have furnished the financial statements and other information referred to in clauses (1) and (2) of Section 4.03(a) if the Issuer or any Parent Entity has filed reports containing such information (or any such parent company, that such parent company’s total assets, revenues, income from continuing operations before income taxes and cash flows from operating activities (excluding in each case amounts related to its investment in the Issuer and the Restricted Subsidiaries), determined information of a Parent Entity in accordance with GAAP the immediately preceding paragraph) with the SEC.
(i) To the extent any information is not provided within the time periods specified in this Section 4.03 and as shown on such information is subsequently provided, the most recent balance sheet of Issuer will be deemed to have satisfied its obligations with respect thereto at such parent company, is more than 3.0% of such parent company’s corresponding consolidated amounttime and any Default with respect thereto shall be deemed to have been cured.
Appears in 2 contracts
Samples: Indenture (Avantor, Inc.), Indenture (Avantor, Inc.)
Reports and Other Information. (a) Notwithstanding that the Issuer may not be subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act or otherwise report on an annual and quarterly basis on forms provided for such annual and quarterly reporting pursuant to rules and regulations promulgated by the SEC, the Issuer shall furnish file with the SEC (and make available to the Trustee and Holders of the Notes (without exhibits) or post on its website (which may be password protected so long as the password is made promptly available by the Issuer ), without cost to the Holdersany Holder, research analysts and prospective purchasers upon request) no later than within 15 days after the dates specified below:Issuer files (or is otherwise required to file) them with the SEC) from and after the Issue Date,
(1) within 90 days (or any other time period then in effect under the rules and regulations of the Exchange Act with respect to the filing of a Form 10-K by a non-accelerated filer) after the end of each fiscal year (beginning with the fiscal year ending after the Issue Date)year, annual reports on Form 10-K, or any successor or comparable form, containing substantially all of the information required to be contained therein, or required in an Annual Report on Form 10-K if the Issuer had been a reporting company under the Exchange Act (but only to the extent similar information is included in the Offering Memorandum); provided, that the Issuer shall not be required to provide the information otherwise required to be presented by reporting companies under the Exchange Act pursuant to Part III of Form 10-K except for such information as would be required by Item 401 of Regulation S-K (other than the information required by subsections (c) and (g) of such item), Item 403(a) of Regulation S-K and Item 404 of Regulation S-K (assuming a transaction threshold of $2,500,000 rather than $120,000 and other than information with respect to employment and compensation arrangements and the information required by Item 404(b))successor or comparable form;
(2) within 45 days after the end of each of the first three fiscal quarters of each fiscal year, reports on Form 10-Q containing substantially all of the quarterly information that would be required to be contained in a Quarterly Report on Form 10-Q if the Issuer had been a reporting company under the Exchange Act (but only to the extent similar information is included in the Offering Memorandum)Q, or any successor or comparable form; and
(3) within the later of 15 days promptly from time to time after the occurrence of the specified event or within five (5) Business Days of the date on which an event would have been required to be reported on a Form 8-K (as in effect on the Issue Date)therein reported, information pursuant to Items 1.01 (Entry into a Material Definitive Agreement), 1.02 (Termination of a Material Definitive Agreement), 1.03 (Bankruptcy or Receivership), 2.01 (Completion of Acquisition or Disposition of Assets), 2.04 (Triggering Events that Accelerate or Increase a Direct Financial Obligation or an Obligation under an Off-Balance Sheet Arrangement), 2.06 (Material Impairment), 4.01 (Changes in Registrant’s Certifying Accountants), 4.02 (Non-Reliance on Previously Issued Financial Statements or a Related Audit Report or Completed Interim Review), 5.01 (Changes in Control of Registrant), 5.02(a), (b) or (c) (Departure of Directors or Principal Officers; Election of Directors; Appointment of Principal Officers; Compensation Arrangements of Certain Officers) (such other than any information relating to compensation arrangements with any directors or officers) and 9.01(a) (Financial Statements and Exhibits) (but only with respect to historical financial statements relating to transactions required to be reported pursuant to Item 2.01 and involving acquisitions of Persons that had revenues in excess of $500,000,000 for the last four completed fiscal quarters prior to the consummation of the acquisition) of a Current Report reports on Form 8-K (as in effect of the Issue Date); providedK, that (a) no such report or information will be required to be so furnished if the Issuer determines in good faith that such event is not material to the Holders or the business, assets, operations or financial condition of the Issuer and its Restricted Subsidiaries, taken as a whole and (b) trade secrets and other confidential information that is competitively sensitive in the good faith and reasonable determination of the Issuer may be excluded from disclosures.
(b) The reports required pursuant to clauses (1), (2) and (3) of Section 4.03(a) will not be required to comply with (i) Section 302, Section 404 or Section 906 of the Xxxxxxxx-Xxxxx Act of 2002, (ii) related Items 307 and 308 of Regulation S-K promulgated by the SEC, (iii) Item 10(e) of Regulation S-K (with respect to any non-GAAP financial measures contained therein) or any successor or comparable successor provision and (iv) Regulation S-X Rule 3-10.
(c) So long as any Notes are outstandingform, in each case, in a manner that complies in all material respects with the Issuer will also:
(1) issue a press release to an internationally recognized wire service no fewer than three Business Days prior to the delivery or posting of the annual and quarterly reports required by clauses (1) and (2) of Section 4.03(a) announcing the date on which requirements specified in such reports will be made available to the Holders and directing Holders, research analysts and prospective purchasers to contact the investor relations office of the Issuer to obtain copies of such reports;
(2) maintain a website (which may be password protected so long as the password is made promptly available by the Issuer to Holders, research analysts and prospective purchasers) to which all of the reports and press releases required by this Section 4.03 are postedform; and
(3) host and participate in customary quarterly conference calls (which may be a single conference call together with investors holding other securities of the Issuer and/or its Restricted Subsidiaries and/or any direct or indirect parent of the Issuer) to discuss operating results and related matters. The Issuer shall issue a press release which will provide the date and time of any such call and will direct Holders, prospective purchasers and research analysts to contact the investor relations office of the Issuer to obtain access to the conference call; provided, provided that the Issuer shall not be so obligated to file such reports with the SEC if the SEC does not permit such filing, in which event the Issuer shall make available such information to prospective purchasers of Notes, in addition to providing such information to the Trustee and the Holders of the Notes, in each case within 15 days after the time the Issuer would be required to undertake file such information with the actions set forth in clauses (1)SEC, (2) and (3if it were subject to Sections 15(d) of this Section 4.03(c) at any time that the Issuer or any direct or indirect parent thereof is otherwise undertaking similar actions on behalf of, and making similar information available to, investors holding other securities of the Issuer or any direct or indirect parent thereof; provided, further, that such information described in the immediately preceding proviso is made available to the Holders.
(d) Exchange Act. In addition, to the extent not satisfied by the foregoing, the Issuer will, for so long as any the Notes are outstanding, the Issuer shall furnish to Holders and to securities analysts and prospective purchasersinvestors, upon their request, the information required to be delivered pursuant to Rule 144A(d)(4) under the Securities Act.
(eb) The Notwithstanding the foregoing, the Issuer may satisfy its obligations in under this Section 4.03 with respect to financial information relating to the Issuer by furnishing financial information relating to a direct or indirect parent companythe Parent Guarantor; provided that, if and for so long as such parent company shall have Independent Assets or Operations (as defined below), that the same is accompanied by consolidating information that explains in reasonable detail the differences between the information relating to such parent companyparent, on the one hand, and the information relating to the Issuer and its Restricted Subsidiaries on a stand-alone standalone basis, on the other hand. “Independent Assets .
(c) The Issuer will be deemed to have furnished the reports required under this Section 4.03 if the Parent Guarantor has filed such reports with the SEC via the XXXXX (or Operations” meanssuccessor) filing system and such reports are publicly available.
(d) Notwithstanding anything herein to the contrary, the Issuer will not be deemed to have failed to comply with any of its agreements hereunder for purposes of clause (3) under Section 6.01 until 120 days after the date any report hereunder is required to be filed with the SEC pursuant to this Section 4.03.
(e) Delivery of such reports, information and documents to the Trustee is for informational purposes only, and the Trustee’s receipt of such shall not constitute constructive notice of any information contained therein or determinable from information contained therein, including the Issuer’s compliance with any of its covenants hereunder (as to which the Trustee is entitled to conclusively rely exclusively on an Officers’ Certificate).
(f) To the extent any information is not provided within the time period specified in this Section 4.03 and such information is subsequently provided, the Issuer will be deemed to have satisfied its delivery obligations with respect to its delay in delivery at such time and any such parent company, that such parent company’s total assets, revenues, income from continuing operations before income taxes and cash flows from operating activities (excluding in each case amounts related Default with respect thereto shall be deemed to its investment in the Issuer and the Restricted Subsidiaries), determined in accordance with GAAP and as shown on the most recent balance sheet of such parent company, is more than 3.0% of such parent company’s corresponding consolidated amounthave been cured.
Appears in 2 contracts
Samples: Indenture (Aramark), Indenture (Aramark)
Reports and Other Information. (a) Notwithstanding that the Issuer Holdings III may not be subject to the reporting requirements of Section 13 or 15(d15 (d) of the Exchange Act or that Holdings III does not otherwise report on an annual and quarterly basis on forms provided for such annual and quarterly reporting pursuant to rules and regulations promulgated by the SEC, Holdings III shall file with the Issuer shall furnish SEC (and make available to the Trustee and Holders of the Notes (without exhibits) or post on its website (which may be password protected so long as the password is made promptly available by the Issuer ), without cost to the Holdersany Holder, research analysts and prospective purchasers upon request) no later than within 15 days after it files them with the dates specified below:SEC) from and after the Issue Date,
(1) within 90 days (or any other time period then in effect under the rules and regulations of the Exchange Act with respect to the filing of a Form 10-K by a non-accelerated filer) after the end of each fiscal year (beginning with the fiscal year ending after the Issue Date)year, annual reports on Form 10-K, or any successor or comparable form, containing substantially all of the information required to be contained therein, or required in an Annual Report on Form 10-K if the Issuer had been a reporting company under the Exchange Act (but only to the extent similar information is included in the Offering Memorandum); provided, that the Issuer shall not be required to provide the information otherwise required to be presented by reporting companies under the Exchange Act pursuant to Part III of Form 10-K except for such information as would be required by Item 401 of Regulation S-K (other than the information required by subsections (c) and (g) of such item), Item 403(a) of Regulation S-K and Item 404 of Regulation S-K (assuming a transaction threshold of $2,500,000 rather than $120,000 and other than information with respect to employment and compensation arrangements and the information required by Item 404(b))successor or comparable form;
(2) within 45 days (or any other time period then in effect under the rules and regulations of the Exchange Act with respect to the filing of a Form 10-Q by a non-accelerated filer) after the end of each of the first three fiscal quarters of each fiscal year, reports on Form 10-Q containing substantially all of the quarterly information that would be required to be contained in a Quarterly Report on Form 10-Q if Q, or any successor or comparable form;
(3) promptly from time to time after the Issuer had been a reporting company under the Exchange Act (but only occurrence of an event required to the extent similar information is included in the Offering Memorandum)be therein reported, such other reports on Form 8-K, or any successor or comparable form; and
(34) within any other information, documents and other reports which Holdings III would be required to file with the later of 15 days after the occurrence SEC if it were subject to Section 13 or 15(d) of the Exchange Act; in each case, in a manner that complies in all material respects with the requirements specified event or within five in such form (5) Business Days of assuming Holdings III were a U.S. person with only unsecured debt registered under the date on which an event would have been required to be reported on a Form 8-K (as in effect on the Issue Date), information pursuant to Items 1.01 (Entry into a Material Definitive Agreement), 1.02 (Termination of a Material Definitive Agreement), 1.03 (Bankruptcy or Receivership), 2.01 (Completion of Acquisition or Disposition of Assets), 2.04 (Triggering Events that Accelerate or Increase a Direct Financial Obligation or an Obligation under an Off-Balance Sheet Arrangement), 2.06 (Material Impairment), 4.01 (Changes in Registrant’s Certifying Accountants), 4.02 (Non-Reliance on Previously Issued Financial Statements or a Related Audit Report or Completed Interim Review), 5.01 (Changes in Control of Registrant), 5.02(a), (b) or (c) (Departure of Directors or Principal Officers; Election of Directors; Appointment of Principal Officers; Compensation Arrangements of Certain Officers) (other than any information relating to compensation arrangements with any directors or officers) and 9.01(a) (Financial Statements and Exhibits) (but only with respect to historical financial statements relating to transactions required to be reported pursuant to Item 2.01 and involving acquisitions of Persons that had revenues in excess of $500,000,000 for the last four completed fiscal quarters prior to the consummation of the acquisition) of a Current Report on Form 8-K (as in effect of the Issue DateSecurities Act); provided, that (a) no Holdings III shall not be so obligated to file such report or reports with the SEC if the SEC does not permit such filing, in which event Holdings III will make available such information will to prospective purchasers of Notes, in addition to providing such information to the Trustee and the Holders of the Notes, in each case within 15 days after the time Holdings III would be required to be so furnished if the Issuer determines in good faith that file such event is not material to the Holders or the business, assets, operations or financial condition of the Issuer and its Restricted Subsidiaries, taken as a whole and (b) trade secrets and other confidential information that is competitively sensitive in the good faith and reasonable determination of the Issuer may be excluded from disclosures.
(b) The reports required pursuant to clauses (1), (2) and (3) of Section 4.03(a) will not be required to comply with (i) Section 302, Section 404 or Section 906 of the Xxxxxxxx-Xxxxx Act of 2002, (ii) related Items 307 and 308 of Regulation S-K promulgated by the SEC, (iii) Item 10(eif it were subject to Sections 13 or 15(d) of Regulation S-K (with respect to any non-GAAP financial measures contained therein) or any comparable successor provision and (iv) Regulation S-X Rule 3-10.
(c) So long as any Notes are outstanding, the Issuer will also:
(1) issue a press release to an internationally recognized wire service no fewer than three Business Days prior to the delivery or posting of the annual and quarterly reports required by clauses (1) and (2) of Section 4.03(a) announcing the date on which such reports will be made available to the Holders and directing Holders, research analysts and prospective purchasers to contact the investor relations office of the Issuer to obtain copies Exchange Act. Delivery of such reports;
, information and documents to the Trustee is for informational purposes only and the Trustee’s receipt of such shall not constitute constructive notice of any information contained therein, including compliance with any of the covenants hereunder (2) maintain a website (which may be password protected so long as the password is made promptly available by the Issuer to Holders, research analysts and prospective purchasers) to which all of the reports and press releases required by this Section 4.03 are posted; and
(3) host and participate in customary quarterly conference calls (which may be a single conference call together with investors holding other securities of the Issuer and/or its Restricted Subsidiaries and/or any direct or indirect parent of the Issuer) Trustee is entitled to discuss operating results and related mattersrely exclusively on Officer’s Certificates). The Issuer shall issue a press release which will provide the date and time of any such call and will direct Holders, prospective purchasers and research analysts to contact the investor relations office of the Issuer to obtain access to the conference call; provided, that the Issuer shall not be required to undertake the actions set forth in clauses (1), (2) and (3) of this Section 4.03(c) at any time that the Issuer or any direct or indirect parent thereof is otherwise undertaking similar actions on behalf of, and making similar information available to, investors holding other securities of the Issuer or any direct or indirect parent thereof; provided, further, that such information described in the immediately preceding proviso is made available to the Holders.
(d) In addition, to the extent not satisfied by the foregoing, the Issuer will, for so long as any Notes are outstanding, Holdings III shall furnish to Holders and to securities analysts and prospective purchasersinvestors, upon their request, the information required to be delivered pursuant to Rule 144A(d)(4) under the Securities Act.
(eb) The Issuer may For so long as Parent, Holdings II or any other direct or indirect parent company of Holdings III is a Guarantor, Holdings III shall be permitted to satisfy its obligations in under this Section 4.03 with respect to financial information relating to the Issuer Holdings III by furnishing financial information relating to a direct Parent, Holdings II or indirect parent companysuch other parent; provided that, if and for so long as such parent company shall have Independent Assets or Operations (as defined below), that the same is accompanied by consolidating information that explains in reasonable detail the differences between the information relating to Parent, Holdings II or such parent companyother parent, on the one hand, and the information relating to the Issuer Holdings III and its Restricted Subsidiaries on a stand-alone standalone basis, on the other hand. “Independent Assets or Operations” meanshand or, with respect to any such parent companyat Holdings III’s option, that such parent company’s total assets, revenues, income from continuing operations before income taxes and cash flows from operating activities (excluding in each case amounts related to its investment substantially in the Issuer form required by Rule 3-10(d) of Regulation S-X or any successor thereto. Notwithstanding anything in Section 4.03(a) to the contrary, Holdings III shall be deemed to have satisfied all its obligations under Section 4.03(a) without any further action so long as (i) the Company is a Guarantor, (ii) the shares of NXP Holdings are listed on a national securities exchange and (iii) NXP Holdings complies with all of its reporting obligations applicable to it under the Restricted Subsidiaries)Exchange Act within the time periods applicable pursuant to the Exchange Act.
(c) Notwithstanding anything herein to the contrary, determined in accordance Holdings III will not be deemed to have failed to comply with GAAP and as shown on any of its obligations under this Section 4.03 for purposes of clause (3) under Section 6.01 until 120 days after the most recent balance sheet of such parent company, date any report is more than 3.0% of such parent company’s corresponding consolidated amountdue under this Section 4.03.
Appears in 2 contracts
Samples: Indenture (Freescale Semiconductor, Ltd.), Indenture (NXP Semiconductors N.V.)
Reports and Other Information. (a) Notwithstanding that the Issuer may not be subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act or otherwise report on an annual and quarterly basis on forms provided for such annual and quarterly reporting pursuant to rules and regulations promulgated by the SEC, the Issuer shall furnish file with the SEC (and make available to the Trustee and Holders of the Notes (without exhibits) or post on its website (which may be password protected so long as the password is made promptly available by the Issuer ), without cost to the Holdersany Holder, research analysts and prospective purchasers upon request) no later than within 15 days after the dates specified below:Issuer files (or is otherwise required to file) them with the SEC) from and after the Issue Date,
(1) within 90 days (or any other time period then in effect under the rules and regulations of the Exchange Act with respect to the filing of a Form 10-K by a non-accelerated filer) after the end of each fiscal year (beginning with the fiscal year ending after the Issue Date)year, annual reports on Form 10-K, or any successor or comparable form, containing substantially all of the information required to be contained therein, or required in an Annual Report on Form 10-K if the Issuer had been a reporting company under the Exchange Act (but only to the extent similar information is included in the Offering Memorandum); provided, that the Issuer shall not be required to provide the information otherwise required to be presented by reporting companies under the Exchange Act pursuant to Part III of Form 10-K except for such information as would be required by Item 401 of Regulation S-K (other than the information required by subsections (c) and (g) of such item), Item 403(a) of Regulation S-K and Item 404 of Regulation S-K (assuming a transaction threshold of $2,500,000 rather than $120,000 and other than information with respect to employment and compensation arrangements and the information required by Item 404(b))successor or comparable form;
(2) within 45 days after the end of each of the first three fiscal quarters of each fiscal year, reports on Form 10-Q containing substantially all of the quarterly information that would be required to be contained in a Quarterly Report on Form 10-Q if the Issuer had been a reporting company under the Exchange Act (but only to the extent similar information is included in the Offering Memorandum)Q, or any successor or comparable form; and
(3) within the later of 15 days promptly from time to time after the occurrence of the specified event or within five (5) Business Days of the date on which an event would have been required to be reported on a Form 8-K (as in effect on the Issue Date)therein reported, information pursuant to Items 1.01 (Entry into a Material Definitive Agreement), 1.02 (Termination of a Material Definitive Agreement), 1.03 (Bankruptcy or Receivership), 2.01 (Completion of Acquisition or Disposition of Assets), 2.04 (Triggering Events that Accelerate or Increase a Direct Financial Obligation or an Obligation under an Off-Balance Sheet Arrangement), 2.06 (Material Impairment), 4.01 (Changes in Registrant’s Certifying Accountants), 4.02 (Non-Reliance on Previously Issued Financial Statements or a Related Audit Report or Completed Interim Review), 5.01 (Changes in Control of Registrant), 5.02(a), (b) or (c) (Departure of Directors or Principal Officers; Election of Directors; Appointment of Principal Officers; Compensation Arrangements of Certain Officers) (such other than any information relating to compensation arrangements with any directors or officers) and 9.01(a) (Financial Statements and Exhibits) (but only with respect to historical financial statements relating to transactions required to be reported pursuant to Item 2.01 and involving acquisitions of Persons that had revenues in excess of $500,000,000 for the last four completed fiscal quarters prior to the consummation of the acquisition) of a Current Report reports on Form 8-K (as in effect of the Issue Date); providedK, that (a) no such report or information will be required to be so furnished if the Issuer determines in good faith that such event is not material to the Holders or the business, assets, operations or financial condition of the Issuer and its Restricted Subsidiaries, taken as a whole and (b) trade secrets and other confidential information that is competitively sensitive in the good faith and reasonable determination of the Issuer may be excluded from disclosures.
(b) The reports required pursuant to clauses (1), (2) and (3) of Section 4.03(a) will not be required to comply with (i) Section 302, Section 404 or Section 906 of the Xxxxxxxx-Xxxxx Act of 2002, (ii) related Items 307 and 308 of Regulation S-K promulgated by the SEC, (iii) Item 10(e) of Regulation S-K (with respect to any non-GAAP financial measures contained therein) or any successor or comparable successor provision and (iv) Regulation S-X Rule 3-10.
(c) So long as any Notes are outstandingform, in each case, in a manner that complies in all material respects with the Issuer will also:
(1) issue a press release to an internationally recognized wire service no fewer than three Business Days prior to the delivery or posting of the annual and quarterly reports required by clauses (1) and (2) of Section 4.03(a) announcing the date on which requirements specified in such reports will be made available to the Holders and directing Holders, research analysts and prospective purchasers to contact the investor relations office of the Issuer to obtain copies of such reports;
(2) maintain a website (which may be password protected so long as the password is made promptly available by the Issuer to Holders, research analysts and prospective purchasers) to which all of the reports and press releases required by this Section 4.03 are postedform; and
(3) host and participate in customary quarterly conference calls (which may be a single conference call together with investors holding other securities of the Issuer and/or its Restricted Subsidiaries and/or any direct or indirect parent of the Issuer) to discuss operating results and related matters. The Issuer shall issue a press release which will provide the date and time of any such call and will direct Holders, prospective purchasers and research analysts to contact the investor relations office of the Issuer to obtain access to the conference call; provided, provided that the Issuer shall not be so obligated to file such reports with the SEC if the SEC does not permit such filing, in which event the Issuer shall make available such information to prospective purchasers of Notes, in addition to providing such information to the Trustee and the Holders of the Notes, in each case within 15 days after the time the Issuer would be required to undertake file such information with the actions set forth in clauses (1), (2) and (3SEC if it were subject to Section 15(d) of this Section 4.03(c) at any time that the Issuer or any direct or indirect parent thereof is otherwise undertaking similar actions on behalf of, and making similar information available to, investors holding other securities of the Issuer or any direct or indirect parent thereof; provided, further, that such information described in the immediately preceding proviso is made available to the Holders.
(d) Exchange Act. In addition, to the extent not satisfied by the foregoing, the Issuer will, for so long as any the Notes are outstanding, the Issuer shall furnish to Holders and to securities analysts and prospective purchasersinvestors, upon their request, the information required to be delivered pursuant to Rule 144A(d)(4) under the Securities Act.
(eb) The Notwithstanding the foregoing, the Issuer may satisfy its obligations in under this Section 4.03 with respect to financial information relating to the Issuer by furnishing financial information relating to a direct or indirect parent companythe Parent Guarantor; provided that, if and for so long as such parent company shall have Independent Assets or Operations (as defined below), that the same is accompanied by consolidating information that explains in reasonable detail the differences between the information relating to such parent companyparent, on the one hand, and the information relating to the Issuer and its Restricted Subsidiaries on a stand-alone standalone basis, on the other hand. “Independent Assets .
(c) The Issuer will be deemed to have furnished the reports required under this Section 4.03 if the Parent Guarantor has filed such reports with the SEC via the XXXXX (or Operations” meanssuccessor) filing system and such reports are publicly available.
(d) Notwithstanding anything herein to the contrary, the Issuer will not be deemed to have failed to comply with any of its agreements hereunder for purposes of clause (3) under Section 6.01 until 120 days after the date any report hereunder is required to be filed with the SEC pursuant to this Section 4.03.
(e) Delivery of such reports, information and documents to the Trustee is for informational purposes only, and the Trustee’s receipt of such shall not constitute constructive notice of any information contained therein or determinable from information contained therein, including the Issuer’s compliance with any of its covenants hereunder (as to which the Trustee is entitled to conclusively rely exclusively on an Officers’ Certificate).
(f) To the extent any information is not provided within the time periods specified in this Section 4.03 and such information is subsequently provided, the Issuer will be deemed to have satisfied its delivery obligations with respect to its delay in delivery at such time and any such parent company, that such parent company’s total assets, revenues, income from continuing operations before income taxes and cash flows from operating activities (excluding in each case amounts related Default with respect thereto shall be deemed to its investment in the Issuer and the Restricted Subsidiaries), determined in accordance with GAAP and as shown on the most recent balance sheet of such parent company, is more than 3.0% of such parent company’s corresponding consolidated amounthave been cured.
Appears in 2 contracts
Samples: Indenture (Aramark), Indenture (Aramark)
Reports and Other Information. (a) Notwithstanding that the Issuer may not be subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act or otherwise report on an annual and quarterly basis on forms provided for such annual and quarterly reporting pursuant to rules and regulations promulgated by the SEC, the Issuer The Issuers shall furnish make available to the Trustee and Holders of the Notes (without exhibits) or post on its website (which may be password protected so long as the password is made promptly available by the Issuer to the Holders, research analysts and prospective purchasers upon request) no later than 15 days after the dates specified below:):
(1i) within 90 days after the end of each fiscal year (beginning commencing with the fiscal year ending after the Issue DateJanuary 27, 2018), annual reports containing substantially all of the information required to be contained in an Annual Report on Form 10-K of J. Crew Group if the Issuer J. Crew Group had been a reporting company under the Exchange Act (but only to the extent similar information is included in the Offering Memorandum)Act; provided, that the Issuer foregoing shall not be required to provide require the provision of the information otherwise required to be presented by reporting companies under the Exchange Act pursuant to Part III of Form 10-K except for such information as would be required by Item 401 of Regulation S-K (other than the information required by subsections (c) and (g) of such item), Item 403(a) of Regulation S-K and Item 404 of Regulation S-K (assuming a transaction threshold of $2,500,000 2,000,000 rather than $120,000 and other than information with respect to employment and compensation arrangements and the information required by Item 404(b));
(2ii) within 45 days after the end of each of the first three fiscal quarters of each fiscal yearyear (commencing with the fiscal quarter ending July 29, 2017), reports containing substantially all of the information required to be contained in a Quarterly Report on Form 10-Q of J. Crew Group if the Issuer J. Crew Group had been a reporting company under the Exchange Act (but only to the extent similar information is included in the Offering Memorandum); andAct;
(3iii) within the later of 15 days after the occurrence of the specified event or within five (5) Business Days of the date on which an event would have been required to be reported on a Form 8-K (as in effect on the Issue Date), information with respect to J. Crew Group pursuant to Items 1.01 (Entry into a Material Definitive Agreement), 1.02 (Termination of a Material Definitive Agreement), 1.03 (Bankruptcy or Receivership), 2.01 (Completion of Acquisition or Disposition of Assets), 2.04 (Triggering Events that Accelerate or Increase a Direct Financial Obligation or an Obligation under an Off-Balance Sheet Arrangement), 2.06 (Material Impairment), 4.01 (Changes in Registrant’s Certifying Accountants), 4.02 (Non-Reliance on Previously Issued Financial Statements or a Related Audit Report or Completed Interim Review), 5.01 (Changes in Control of Registrant) 5.02(a),(b), 5.02(a), (b) or (c) (Departure of Directors or Principal Officers; Election of Directors; Appointment of Principal Officers; Compensation Arrangements of Certain Officers) (other than any information relating to compensation arrangements with any directors or officers) and 9.01(a) (Financial Statements and Exhibits) (, but only with respect to historical financial statements relating to transactions required to be reported pursuant to Item 2.01 and involving acquisitions of Persons that had revenues in excess of $500,000,000 for the last four completed fiscal quarters prior to the consummation of the acquisitionPersons) of a Current Report on Form 8-K (as in effect of the Issue Date); provided, however, that (a) no such report or information will be required to be so furnished delivered if either the LLC Issuer or the Parent Guarantor, as applicable, determines in good faith that such event is not material to the Holders or the business, assets, operations or financial condition of the Issuer Issuers and its Restricted Subsidiariesthe Guarantors, taken as a whole and (b) trade secrets and other confidential information that is competitively sensitive in the good faith and reasonable determination of the Issuer Issuers may be excluded from disclosures.;
(biv) The within 90 days after the end of each fiscal year of the Parent Guarantor ending after the Issue Date, the consolidated financial statements of the of the Parent Guarantor for such year prepared in accordance with GAAP, together with a report thereon by the Parent Guarantor’s independent auditors, or in lieu thereof, included within the audited financial statements included in the report referred to in clause (i) above, consolidating financial statements that separately present the consolidated financial income statement and balance sheet information of the Parent Guarantor and its subsidiaries; and
(v) within 45 days after the end of each of the first three fiscal quarters in each fiscal year of the Parent Guarantor, beginning with the first such fiscal quarter ending after the Issue Date, the consolidated financial statements of the Parent Guarantor for such quarter prepared in accordance with GAAP, or in lieu thereof, included within the unaudited quarterly financial statements included in the report referred to in clause (ii) above, consolidating financial statements that separately present the consolidated financial income statement and balance sheet information of the Parent Guarantor and its subsidiaries; in each case, in a manner that complies in all material respects with the requirements specified in such form; provided that the LLC Issuer and the Parent Guarantor shall make available such information to prospective purchasers of Notes, in addition to providing such information to the Trustee, including by posting such information on a password protected online data system requiring user identification or the website of the LLC Issuer or the Parent Guarantor or any of their direct or indirect parent companies (which may be password protected so long as the password is made promptly available by the Issuers to the Trustee, the Holders of the Notes and such prospective purchasers upon request); provided, further, that such reports required pursuant to clauses (1i), (2ii) and (3iii) of this Section 4.03(a) will (A) shall not be required to comply with (i) Section 302, Section 404 or Section 906 of the Xxxxxxxx-Xxxxx Act of 2002, (ii) as amended, or related Items 307 and 308 of Regulation S-K promulgated by the SEC, (iii) or Item 10(e) of Regulation S-K (with respect to any non-GAAP financial measures contained therein), (B) or any comparable successor provision and (iv) Regulation S-X Rule 3-10.
(c) So long as any Notes are outstanding, the Issuer will also:
(1) issue a press release to an internationally recognized wire service no fewer than three Business Days prior to the delivery or posting of the annual and quarterly reports required by clauses (1) and (2) of Section 4.03(a) announcing the date on which such reports will be made available to the Holders and directing Holders, research analysts and prospective purchasers to contact the investor relations office of the Issuer to obtain copies of such reports;
(2) maintain a website (which may be password protected so long as the password is made promptly available by the Issuer to Holders, research analysts and prospective purchasers) to which all of the reports and press releases required by this Section 4.03 are posted; and
(3) host and participate in customary quarterly conference calls (which may be a single conference call together with investors holding other securities of the Issuer and/or its Restricted Subsidiaries and/or any direct or indirect parent of the Issuer) to discuss operating results and related matters. The Issuer shall issue a press release which will provide the date and time of any such call and will direct Holders, prospective purchasers and research analysts to contact the investor relations office of the Issuer to obtain access to the conference call; provided, that the Issuer shall not be required to undertake comply with Items 402, 403, 406 and 407 of Regulation S-K promulgated by the actions set forth in clauses (1)SEC, (2C) shall not be required to comply with Rule 3-10 or Rule 3-16 of Regulation S-X promulgated by the SEC, (D) shall not be required to include any segment or business unit level financial information and (3E) shall not be required to include any exhibits that would have been required to be filed pursuant to Item 601 of this Section 4.03(c) at any time that Regulation S-K promulgated by the Issuer or any direct or indirect parent thereof is otherwise undertaking similar actions on behalf of, and making similar information available to, investors holding other securities of the Issuer or any direct or indirect parent thereof; provided, further, that such information described in the immediately preceding proviso is made available to the Holders.
(d) SEC. In addition, to the extent not satisfied by the foregoing, the Issuer willIssuers agree that, for so long as any Notes are outstanding, it will furnish to Holders and to securities analysts and prospective purchasersinvestors, upon their request, the information required to be delivered pursuant to Rule 144A(d)(4) under the Securities Act.
(b) [Reserved].
(c) [Reserved].
(d) [Reserved].
(e) The Issuer may satisfy its obligations To the extent any information is not provided within the time periods specified in this Section 4.03 and such information is subsequently provided, the Issuers will be deemed to have satisfied their obligations with respect thereto at such time and any Default with respect thereto shall be deemed to financial information relating to the Issuer by furnishing financial information relating to a direct or indirect parent company; provided that, if and for so long as such parent company have been cured.
(f) The Trustee shall have Independent Assets or Operations (as defined below), the same is accompanied by consolidating no responsibility to determine whether any information that explains in reasonable detail the differences between the information relating to such parent company, has been posted on the one hand, and the information relating to the Issuer and its Restricted Subsidiaries on a stand-alone basis, on the other hand. “Independent Assets or Operations” means, with respect to any such parent company, that such parent company’s total assets, revenues, income from continuing operations before income taxes and cash flows from operating activities (excluding in each case amounts related to its investment in the Issuer and the Restricted Subsidiaries), determined in accordance with GAAP and as shown on the most recent balance sheet of such parent company, is more than 3.0% of such parent company’s corresponding consolidated amountwebsite.
Appears in 2 contracts
Samples: Indenture (J Crew Group Inc), Indenture (J Crew Group Inc)
Reports and Other Information. (a) Notwithstanding that So long as any Notes are outstanding, the Issuer may not be subject Issuers will furnish to the reporting requirements of Section 13 or 15(dHolders (with a copy to the Trustee):
(1) of the Exchange Act or otherwise report on an (A) all annual and quarterly basis financial statements substantially in forms that would be required to be contained in a filing with the SEC on forms provided for Forms 10-K and 10-Q of the Com- pany, if the Company were required to file such forms, plus a “Management’s Discussion and Analysis of Financial Condition and Results of Operations,” (B) with respect to the annual and quarterly reporting pursuant information, a presentation of “Adjusted EBITDA” of the Company substantially con- sistent with the presentation thereof in the Offering Memorandum and derived from such xxxxx- cial information, and (C) with respect to rules the annual financial statements only, a report on the an- nual financial statements by the Company’s independent registered public accounting firm; and
(2) promptly after the occurrence of an event required to be therein reported, such other information containing substantially the same information that would be required to be con- tained in filings with the SEC on Form 8-K under Items 1.01, 1.02, 1.03, 2.01, 4.01, 4.02, 5.01 and regulations 5.02(b) and (c) (other than with respect to information otherwise required or contemplated by Item 402 of Regulation S-K promulgated by the SEC) as in effect on the Issue Date if the Com- pany were required to file such reports; provided, however, that no such current report will be re- quired to include as an exhibit, or to include a summary of the terms of, any employment or com- pensatory arrangement agreement, plan or understanding between the Company (or any of its Subsidiaries) and any director, manager or executive officer of the Company (or any of its Sub- sidiaries); provided, however, that (i) in no event shall such reports be required to comply with Rule 13-01 or 13-02 of Regulation S-X promulgated by the SEC or contain separate financial statements for the Issuers, the Guarantors or other Subsidiaries the shares of which are pledged to secure the Notes or any Guarantee that would be required under Rule 3-09, 13-01 or 13-02 of Regulation S-X, respectively, promulgated by the SEC, the Issuer (ii) in no event shall furnish to the Trustee and Holders of the Notes (without exhibits) or post on its website (which may such reports be password protected so long as the password is made promptly available by the Issuer to the Holders, research analysts and prospective purchasers upon request) no later than 15 days after the dates specified below:
(1) within 90 days after the end of each fiscal year (beginning with the fiscal year ending after the Issue Date), annual reports containing substantially all of the information required to be contained in an Annual Report on Form 10-K if the Issuer had been a reporting company comply with Regulation G under the Exchange Act (but only to the extent similar information is included in the Offering Memorandum); provided, that the Issuer shall not be required to provide the information otherwise required to be presented by reporting companies under the Exchange Act pursuant to Part III of Form 10-K except for such information as would be required by or Item 401 of Regulation S-K (other than the information required by subsections (c) and (g) of such item), Item 403(a10(e) of Regulation S-K and Item 404 of Regulation S-K (assuming a transaction threshold of $2,500,000 rather than $120,000 and other than information promulgated by the SEC with respect to employment and compensation arrangements and the information required by Item 404(b));
any non-GAAP financial measures contained therein, (iii) no such reports referenced under clause (2) within 45 days after the end of each of the first three fiscal quarters of each fiscal year, reports containing substantially all of the information required to be contained in a Quarterly Report on Form 10-Q if the Issuer had been a reporting company under the Exchange Act (but only to the extent similar information is included in the Offering Memorandum); and
(3) within the later of 15 days after the occurrence of the specified event or within five (5) Business Days of the date on which an event would have been required to be reported on a Form 8-K (as in effect on the Issue Date), information pursuant to Items 1.01 (Entry into a Material Definitive Agreement), 1.02 (Termination of a Material Definitive Agreement), 1.03 (Bankruptcy or Receivership), 2.01 (Completion of Acquisition or Disposition of Assets), 2.04 (Triggering Events that Accelerate or Increase a Direct Financial Obligation or an Obligation under an Off-Balance Sheet Arrangement), 2.06 (Material Impairment), 4.01 (Changes in Registrant’s Certifying Accountants), 4.02 (Non-Reliance on Previously Issued Financial Statements or a Related Audit Report or Completed Interim Review), 5.01 (Changes in Control of Registrant), 5.02(a), (b) or (c) (Departure of Directors or Principal Officers; Election of Directors; Appointment of Principal Officers; Compensation Arrangements of Certain Officers) (other than any information relating to compensation arrangements with any directors or officers) and 9.01(a) (Financial Statements and Exhibits) (but only with respect to historical financial statements relating to transactions required to be reported pursuant to Item 2.01 and involving acquisitions of Persons that had revenues in excess of $500,000,000 for the last four completed fiscal quarters prior to the consummation of the acquisition) of a Current Report on Form 8-K (as in effect of the Issue Date); provided, that (a) no such report or information will above shall be required to be so furnished if the Issuer Company determines in its good faith judgment that such event is not material to the Holders or the business, assets, operations or financial condition position of the Issuer Company and its Restricted SubsidiariesSubsid- iaries, taken as a whole and whole, (biv) trade secrets and other confidential in no event shall such reports be required to include any information that is competitively sensitive not otherwise similar to information included in the good faith Offering Memorandum, other than with respect to reports provided under clause (2) above and reasonable determination (v) in no event shall reports referenced in clause (2) above be required to include as an exhibit copies of any agreements, financial statements or other items that would be required to be filed as exhibits to a current report on Form 8-K except for (x) agreements evidencing material Indebtedness and (y) historical and pro forma financial statements to the extent reasonably avail- able and, in any case with respect to pro forma financial statements, to include only pro forma revenues, Consolidated EBITDA and Capital Expenditures in lieu thereof. All such annual reports shall be furnished within 90 days after the end of the Issuer may fiscal year to which they relate, and all such quarterly reports shall be excluded furnished within 45 days after the end of the fiscal quarter to which they relate. At any time that any of the Company’s Subsidiaries are Unrestricted Subsidiaries and if any such Unrestricted Subsidiary or group of Unrestricted Subsidiaries, if taken together as one Subsidi- ary, would constitute a Significant Subsidiary of an Issuer, then the quarterly and annual financial infor- mation required by the preceding paragraph will include a reasonably detailed presentation, either on the face of the financial statements or in the footnotes thereto, in the “Management’s Discussion and Analysis of Financial Condition and Results of Operations” or other comparable section, of the financial condition and results of operations of the Company and the Restricted Subsidiaries separate from disclosuresthe financial con- dition and results of operations of such Unrestricted Subsidiaries of the Company.
(b) The reports required pursuant to clauses (1), (2) and (3) of Section 4.03(a) will not be required to comply with (i) Section 302, Section 404 or Section 906 of the Xxxxxxxx-Xxxxx Act of 2002, (ii) related Items 307 and 308 of Regulation S-K promulgated by the SEC, (iii) Item 10(e) of Regulation S-K (with respect to any non-GAAP financial measures contained therein) or any comparable successor provision and (iv) Regulation S-X Rule 3-10.
(c) So long as any Notes are outstanding, the Issuer Issuers will also:
make available such infor- mation and such reports (1as well as the details regarding the conference call described below) issue to any Holder and, upon request, to any beneficial owner of the Notes, securities analysts providing analysis of investment in the Notes and market makers, in each case by posting such information on its website, on Intralinks or any comparable password-protected online data system which will require a press release confidentiality acknowledgment, and will make such information readily available to an internationally recognized wire service no fewer than three Business Days prior any Holder, beneficial owners of Notes, any prospective investor in the Notes, any securities analyst (to the delivery extent providing analysis of investment in the Notes) or posting of any market maker in the annual and quarterly reports required by clauses (1) and (2) of Section 4.03(a) announcing the date Notes who agrees to treat such information as confi- dential or accesses such information on which such reports will be made available to the Holders and directing Holders, research analysts and prospective purchasers to contact the investor relations office of the Issuer to obtain copies of such reports;
(2) maintain a website (which may be password Intralinks or any comparable password-protected so long as the password is made promptly available by the Issuer to Holders, research analysts and prospective purchasers) to which all of the reports and press releases required by this Section 4.03 are posted; and
(3) host and participate in customary quarterly conference calls (which may be a single conference call together with investors holding other securities of the Issuer and/or its Restricted Subsidiaries and/or any direct or indirect parent of the Issuer) to discuss operating results and related matters. The Issuer shall issue a press release online data sys- tem which will provide require a confidentiality acknowledgment; provided that the date Issuers shall post such infor- mation thereon and time of make readily available any password or other login information to any such call and will direct HoldersHolder, beneficial owner of Notes, prospective purchasers and research analysts to contact the investor relations office of the Issuer to obtain access to the conference call; providedinvestor, that the Issuer shall not be required to undertake the actions set forth in clauses (1), (2) and (3) of this Section 4.03(c) at any time that the Issuer securities analyst or any direct or indirect parent thereof is otherwise undertaking similar actions on behalf of, and making similar information available to, investors holding other securities of the Issuer or any direct or indirect parent thereof; provided, further, that such information described in the immediately preceding proviso is made available to the Holdersmarket maker.
(dc) In addition, to the extent not satisfied by the foregoingthis Section 4.03, the Issuer will, for so long as any Notes are outstanding, furnish to Holders and Issuers shall fur- nish to prospective purchasersinvestors, upon their request, the any information required to be delivered pursuant to Rule 144A(d)(4) under the Securities Act so long as the Notes are not freely transferable under the Secu- rities Act.
(ed) The Issuer Issuers may satisfy its their obligations in under this Section 4.03 with respect to financial information relating to the Issuer Company and its Subsidiaries by furnishing financial information relating re- lating to a direct or indirect parent companyany Parent Entity of the Company instead of the Company; provided thatthat to the extent financial information related to such Parent Entity is provided, if and for so long as such parent company shall have Independent Assets or Operations (as defined below), the same information is accompanied by consolidating information information, which may be unaudited, that explains in reasonable detail the any material differences between the information relating to of such parent companyParent Entity, on the one hand, and the information relating to the Issuer Company and its Restricted Subsidiaries on a stand-alone basis, on the other hand, which explanation may be qualitative if appro- priate or can indicate that there are no material differences if accurate.
(e) The Issuers shall be deemed to have furnished the reports referred to in Sections 4.03(a)(1) and (2) if the Company or any Parent Entity of the Company has filed reports containing such information with the SEC.
(f) Notwithstanding any provision to the contrary in this Indenture, to the extent any of the information required to be furnished pursuant to this Section 4.03 is not so furnished within the time periods specified herein and is subsequently furnished, the Issuers will be deemed to have satisfied their obligations with respect thereto at such time and any Default or Event of Default with respect thereto shall be deemed to have been cured.
(g) Notwithstanding anything to the contrary set forth in this Section 4.03, if at any time the Company or any Parent Entity of the Company has made a good faith determination to file a reg- istration statement with the SEC with respect to an initial public offering of such entity’s Capital Stock, the Issuers will not be required to disclose any information or take any actions that, in the good faith view of the Company, would violate applicable securities laws or the SEC’s “gun jumping” rules.
(h) Delivery of such reports, information and documents to the Trustee shall be for informational purposes only and the Trustee’s receipt of such shall not constitute actual or constructive notice of any information contained therein or determinable from information contained therein, including the Issuers’ compliance with any of the covenants under this Indenture or the Notes (as to which the Trus- tee shall have no duty to monitor and shall be entitled to rely exclusively on Officer’s Certificates). “Independent Assets Nei- ther the Trustee nor the Notes Collateral Agent shall be obligated to monitor or Operations” meansconfirm, on a continuing basis or otherwise, our compliance with the covenants or with respect to any such parent company, that such parent company’s total assets, revenues, income from continuing operations before income taxes and cash flows from operating activities (excluding reports or other documents filed with the SEC or participate in each case amounts related any conference calls. Neither the Trustee nor the Notes Collateral Agent shall have any responsibility whatsoever to its investment determine whether any filing or posting referred to in the Issuer and the Restricted Subsidiaries), determined in accordance with GAAP and as shown on the most recent balance sheet of such parent company, is more than 3.0% of such parent company’s corresponding consolidated amountthis Section 4.03 has occurred.
Appears in 1 contract
Reports and Other Information. (a) Notwithstanding that the Issuer may not be subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act or otherwise report on an annual and quarterly basis on forms provided for such annual and quarterly reporting pursuant to rules and regulations promulgated by the SEC, the Issuer shall furnish to the Trustee and Holders of the Notes (without exhibits) or post on its website (which may be password protected so long as the password is made promptly available by the Issuer to the Holders, research analysts and prospective purchasers upon request) no later than 15 days after the dates specified below:
(1) within 90 days after the end of each fiscal year (beginning with the fiscal year ending after the Issue Date), annual reports containing substantially all of the information required to be contained in an Annual Report on Form 10-K if the Issuer had been a reporting company under the Exchange Act (but only to the extent similar information is included in the Offering Memorandum); provided, that the Issuer shall not be required to provide the information otherwise required to be presented by reporting companies under the Exchange Act pursuant to Part III of Form 10-K except for such information as would be required by Item 401 of Regulation S-K (other than the information required by subsections (c) and (g) of such item), Item 403(a) of Regulation S-K and Item 404 of Regulation S-K (assuming a transaction threshold of $2,500,000 2,000,000 rather than $120,000 and other than information with respect to employment and compensation arrangements and the information required by Item 404(b));
(2) within 45 days after the end of each of the first three fiscal quarters of each fiscal year, reports containing substantially all of the information required to be contained in a Quarterly Report on Form 10-Q if the Issuer had been a reporting company under the Exchange Act (but only to the extent similar information is included in the Offering Memorandum); and
(3) within the later of 15 days after the occurrence of the specified event or within five (5) Business Days of the date on which an event would have been required to be reported on a Form 8-K (as in effect on the Issue Date), information pursuant to Items 1.01 (Entry into a Material Definitive Agreement), 1.02 (Termination of a Material Definitive Agreement), 1.03 (Bankruptcy or Receivership), 2.01 (Completion of Acquisition or Disposition of Assets), 2.04 (Triggering Events that Accelerate or Increase a Direct Financial Obligation or an Obligation under an Off-Balance Sheet Arrangement), 2.06 (Material Impairment), 4.01 (Changes in Registrant’s Certifying Accountants), 4.02 (Non-Reliance on Previously Issued Financial Statements or a Related Audit Report or Completed Interim Review), 5.01 (Changes in Control of Registrant), 5.02(a), (b) or (c) (Departure of Directors or Principal Officers; Election of Directors; Appointment of Principal Officers; Compensation Arrangements of Certain Officers) (other than any information relating to compensation arrangements with any directors or officers) and 9.01(a) (Financial Statements and Exhibits) (Exhibits but only with respect to historical financial statements relating to transactions required to be reported pursuant to Item 2.01 and involving acquisitions of Persons that had revenues in excess of $500,000,000 200,000,000 for the last four completed fiscal quarters prior to the consummation of the acquisition) of a Current Report on Form 8-K (as in effect of the Issue Date); provided, that (a) no such report or information will be required to be so furnished if the Issuer determines in good faith that such event is not material to the Holders or the business, assets, operations or financial condition of the Issuer and its Restricted Subsidiaries, taken as a whole and (b) trade secrets and other confidential information that is competitively sensitive in the good faith and reasonable determination of the Issuer may be excluded from disclosures.
(b) The reports required pursuant to clauses (1), (2) and (3) of Section 4.03(a) will not be required to comply with (i) Section 302, Section 404 or Section 906 of the Xxxxxxxx-Xxxxx Act of 2002, (ii) related Items 307 and 308 of Regulation S-K promulgated by the SEC, (iii) Item 10(e) of Regulation S-K (with respect to any non-GAAP financial measures contained therein) or any comparable successor provision and (iv) Regulation S-X Rule 3-10.
(c) So long as any Notes are outstanding, the Issuer will also:
(1) issue a press release to an internationally recognized wire service no fewer than three Business Days prior to the delivery or posting of the annual and quarterly reports required by clauses (1) and (2) of Section 4.03(a) announcing the date on which such reports will be made available to the Holders and directing Holders, research analysts and prospective purchasers to contact the investor relations office of the Issuer to obtain copies of such reports;
(2) maintain a website (which may be password protected so long as the password is made promptly available by the Issuer to Holders, research analysts and prospective purchasers) to which all of the reports and press releases required by this Section 4.03 are posted; and
(3) host and participate in customary quarterly conference calls (which may be a single conference call together with investors holding other securities of the Issuer and/or its Restricted Subsidiaries and/or any direct or indirect parent of the Issuer) to discuss operating results and related matters. The Issuer shall issue a press release which will provide the date and time of any such call and will direct Holders, prospective purchasers and research analysts to contact the investor relations office of the Issuer to obtain access to the conference call; provided, that the Issuer shall not be required to undertake the actions set forth in clauses (1), (2) and (3) of this Section 4.03(c) at any time that the Issuer or any direct or indirect parent thereof is otherwise undertaking similar actions on behalf of, and making similar information available to, investors holding other securities of the Issuer or any direct or indirect parent thereof; provided, further, that such information described in the immediately preceding proviso is made available to the Holders.
(d) The Issuer will make available copies of all reports required by clauses (1) through (3) of Section 4.03(a), if and for so long as the Notes are listed on the Official List of the Irish Stock Exchange and admitted for trading on the Global Exchange Market thereof and the rules of the Irish Stock Exchange so require, at the offices of the listing agent or, to the extent required and in the manner permitted by such rules, post such reports on the official website of the Irish Stock Exchange.
(e) In addition, to the extent not satisfied by the foregoing, the Issuer will, for so long as any Notes are outstanding, furnish to Holders and to prospective purchasers, upon their request, the information required to be delivered pursuant to Rule 144A(d)(4) under the Securities Act.
(ef) The Issuer may satisfy its obligations in this Section 4.03 with respect to financial information relating to the Issuer by furnishing financial information relating to a direct or indirect parent company; provided that, if and for so long as such parent company shall have Independent Assets or Operations (as defined below), the same is accompanied by consolidating information that explains in reasonable detail the differences between the information relating to such parent company, on the one hand, and the information relating to the Issuer and its Restricted Subsidiaries on a stand-alone basis, on the other hand. “Independent Assets or Operations” means, with respect to any such parent company, that such parent company’s total assets, revenues, income from continuing operations before income taxes and cash flows from operating activities (excluding in each case amounts related to its investment in the Issuer and the Restricted Subsidiaries), determined in accordance with GAAP and as shown on the most recent balance sheet of such parent company, is more than 3.0% of such parent company’s corresponding consolidated amount.
Appears in 1 contract
Reports and Other Information. (a) Notwithstanding that the Issuer Company may not be subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act or otherwise report on an annual and quarterly basis on forms provided for such annual and quarterly reporting pursuant to rules and regulations promulgated by the SEC, the Issuer Company shall furnish to file with the SEC (and provide the Trustee and Holders of the Notes (with copies thereof, without exhibits) or post on its website (which may be password protected so long as the password is made promptly available by the Issuer cost to the Holderseach Holder, research analysts and prospective purchasers upon request) no later than within 15 days after it files them with the dates specified below:
SEC), (1i) within 90 days after the end of each fiscal year (beginning with the fiscal year ending after the Issue Date)year, annual reports on Form 10- K (or any successor or comparable form) containing substantially all of the information required to be contained therein (or required in an Annual Report on Form 10-K if the Issuer had been a reporting company under the Exchange Act (but only to the extent similar information is included in the Offering Memorandum); provided, that the Issuer shall not be required to provide the information otherwise required to be presented by reporting companies under the Exchange Act pursuant to Part III of Form 10-K except for such information as would be required by Item 401 of Regulation S-K (other than the information required by subsections (c) and (g) of such itemsuccessor or comparable form), Item 403(a) of Regulation S-K and Item 404 of Regulation S-K (assuming a transaction threshold of $2,500,000 rather than $120,000 and other than information with respect to employment and compensation arrangements and the information required by Item 404(b));
(2ii) within 45 days after the end of each of the first three fiscal quarters of each fiscal year, reports containing substantially all of the information required to be contained in a Quarterly Report on Form 10-Q if the Issuer had been a reporting company under the Exchange Act (but only or any successor or comparable form), (iii) promptly from time to the extent similar information is included in the Offering Memorandum); and
(3) within the later of 15 days time after the occurrence of the specified event or within five (5) Business Days of the date on which an event would have been required to be reported on a Form 8-K (as in effect on the Issue Date)therein reported, information pursuant to Items 1.01 (Entry into a Material Definitive Agreement), 1.02 (Termination of a Material Definitive Agreement), 1.03 (Bankruptcy or Receivership), 2.01 (Completion of Acquisition or Disposition of Assets), 2.04 (Triggering Events that Accelerate or Increase a Direct Financial Obligation or an Obligation under an Off-Balance Sheet Arrangement), 2.06 (Material Impairment), 4.01 (Changes in Registrant’s Certifying Accountants), 4.02 (Non-Reliance on Previously Issued Financial Statements or a Related Audit Report or Completed Interim Review), 5.01 (Changes in Control of Registrant), 5.02(a), (b) or (c) (Departure of Directors or Principal Officers; Election of Directors; Appointment of Principal Officers; Compensation Arrangements of Certain Officers) (such other than any information relating to compensation arrangements with any directors or officers) and 9.01(a) (Financial Statements and Exhibits) (but only with respect to historical financial statements relating to transactions required to be reported pursuant to Item 2.01 and involving acquisitions of Persons that had revenues in excess of $500,000,000 for the last four completed fiscal quarters prior to the consummation of the acquisition) of a Current Report reports on Form 8-K (as in effect of the Issue Date); provided, that (a) no such report or information will be required to be so furnished if the Issuer determines in good faith that such event is not material to the Holders any successor or the business, assets, operations or financial condition of the Issuer and its Restricted Subsidiaries, taken as a whole and (b) trade secrets and other confidential information that is competitively sensitive in the good faith and reasonable determination of the Issuer may be excluded from disclosures.
(b) The reports required pursuant to clauses (1comparable form), (2) and (3) of Section 4.03(a) will not be required to comply with (i) Section 302, Section 404 or Section 906 of the Xxxxxxxx-Xxxxx Act of 2002, (ii) related Items 307 and 308 of Regulation S-K promulgated by the SEC, (iii) Item 10(e) of Regulation S-K (with respect to any non-GAAP financial measures contained therein) or any comparable successor provision and (iv) Regulation S-X Rule 3-10.
(cany other information, documents and other reports that the Company would be required to file with the SEC if it were subject to Section 13 or 15(d) So long as any Notes are outstanding, the Issuer will also:
(1) issue a press release to an internationally recognized wire service no fewer than three Business Days prior to the delivery or posting of the annual and quarterly reports required by clauses (1) and (2) of Section 4.03(a) announcing the date on which such reports will be made available to the Holders and directing Holders, research analysts and prospective purchasers to contact the investor relations office of the Issuer to obtain copies of such reports;
(2) maintain a website (which may be password protected so long as the password is made promptly available by the Issuer to Holders, research analysts and prospective purchasers) to which all of the reports and press releases required by this Section 4.03 are posted; and
(3) host and participate in customary quarterly conference calls (which may be a single conference call together with investors holding other securities of the Issuer and/or its Restricted Subsidiaries and/or any direct or indirect parent of the Issuer) to discuss operating results and related matters. The Issuer shall issue a press release which will provide the date and time of any such call and will direct Holders, prospective purchasers and research analysts to contact the investor relations office of the Issuer to obtain access to the conference callExchange Act; provided, that however, the Issuer Company shall not be required so obligated to undertake file such reports with the actions set forth SEC if the SEC does not permit such filing, in clauses (1), (2) and (3) of this Section 4.03(c) at any time that which event the Issuer or any direct or indirect parent thereof is otherwise undertaking similar actions on behalf of, and making similar information Company shall make available to, investors holding other securities of the Issuer or any direct or indirect parent thereof; provided, further, that such information described to prospective purchasers of Securities, in the immediately preceding proviso is made available addition to providing such information to the Holders.
(d) In addition, to the extent not satisfied by the foregoing, the Issuer will, for so long as any Notes are outstanding, furnish to Holders and to prospective purchasers, upon their request, the information required to be delivered pursuant to Rule 144A(d)(4) under the Securities Act.
(e) The Issuer may satisfy its obligations in this Section 4.03 with respect to financial information relating to the Issuer by furnishing financial information relating to a direct or indirect parent company; provided that, if and for so long as such parent company shall have Independent Assets or Operations (as defined below), the same is accompanied by consolidating information that explains in reasonable detail the differences between the information relating to such parent company, on the one hand, Trustee and the information relating to the Issuer and its Restricted Subsidiaries on a stand-alone basisHolders, on the other hand. “Independent Assets or Operations” means, with respect to any such parent company, that such parent company’s total assets, revenues, income from continuing operations before income taxes and cash flows from operating activities (excluding in each case amounts related within 15 days after the time the Company would be required to its investment in file such information with the Issuer and SEC if it were subject to Section 13 or 15(d) of the Restricted SubsidiariesExchange Act. The Company also shall comply with the other provisions of TIA ss. 314(a), determined in accordance with GAAP and as shown on the most recent balance sheet of such parent company, is more than 3.0% of such parent company’s corresponding consolidated amount.
Appears in 1 contract
Samples: Indenture (Imperial Home Decor Group Holdings I LTD)
Reports and Other Information. (a) Notwithstanding that the Issuer may not be subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act or otherwise report on an annual and quarterly basis on forms provided for such annual and quarterly reporting pursuant to rules and regulations promulgated by the SEC, the Issuer shall furnish to the Trustee and Holders of the Notes (without exhibits) or post on its website (which may be password protected so long as the password is made promptly available by the Issuer to the Holders, research analysts and prospective purchasers upon request) no later than 15 days after the dates specified below:
(1) within 90 days after the end of each fiscal year (beginning with the fiscal year ending after the Issue Date), annual reports containing substantially all of the information required to be contained in an Annual Report on Form 10-K if the Issuer had been a reporting company under the Exchange Act (but only to the extent similar information is included in the Offering Memorandum); provided, that the Issuer shall not be required to provide the information otherwise required to be presented by reporting companies under the Exchange Act pursuant to Part III of Form 10-K except for such information as would be required by Item 401 of Regulation S-K (other than the information required by subsections (c) and (g) of such item), Item 403(a) of Regulation S-K and Item 404 of Regulation S-K (assuming a transaction threshold of $2,500,000 rather than $120,000 and other than information with respect to employment and compensation arrangements and the information required by Item 404(b));
(2) within 45 days after the end of each of the first three fiscal quarters of each fiscal year, reports containing substantially all of the information required to be contained in a Quarterly Report on Form 10-Q if the Issuer had been a reporting company under the Exchange Act (but only to the extent similar information is included in the Offering Memorandum); and
(3) within the later of 15 days after the occurrence of the specified event or within five (5) Business Days of the date on which an event would have been required to be reported on a Form 8-K (as in effect on the Issue Date), information pursuant to Items 1.01 (Entry into a Material Definitive Agreement), 1.02 (Termination of a Material Definitive Agreement), 1.03 (Bankruptcy or Receivership), 2.01 (Completion of Acquisition or Disposition of Assets), 2.04 (Triggering Events that Accelerate or Increase a Direct Financial Obligation or an Obligation under an Off-Balance Sheet Arrangement), 2.06 (Material Impairment), 4.01 (Changes in Registrant’s Certifying Accountants), 4.02 (Non-Reliance on Previously Issued Financial Statements or a Related Audit Report or Completed Interim Review), 5.01 (Changes in Control of Registrant), 5.02(a), (b) or (c) (Departure of Directors or Principal Officers; Election of Directors; Appointment of Principal Officers; Compensation Arrangements of Certain Officers) (other than any information relating to compensation arrangements with any directors or officers) and 9.01(a) (Financial Statements and Exhibits) (but only with respect to historical financial statements relating to transactions required to be reported pursuant to Item 2.01 and involving acquisitions of Persons that had revenues in excess of $500,000,000 for the last four completed fiscal quarters prior to the consummation of the acquisition) of a Current Report on Form 8-K (as in effect of the Issue Date); provided, that (a) no such report or information will be required to be so furnished if the Issuer determines in good faith that such event is not material to the Holders or the business, assets, operations or financial condition of the Issuer and its Restricted Subsidiaries, taken as a whole and (b) trade secrets and other confidential information that is competitively sensitive in the good faith and reasonable determination of the Issuer may be excluded from disclosures.
(b) The reports required pursuant to clauses (1), (2) and (3) of Section 4.03(a) will not be required to comply with (i) Section 302, Section 404 or Section 906 of the Xxxxxxxx-Xxxxx Act of 2002, (ii) related Items 307 and 308 of Regulation S-K promulgated by the SEC, (iii) Item 10(e) of Regulation S-K (with respect to any non-GAAP financial measures contained therein) or any comparable successor provision and (iv) Regulation S-X Rule 3-10.
(c) So long as any Notes are outstanding, the Issuer will also:
(1) issue a press release to an internationally recognized wire service no fewer than three Business Days prior to the delivery or posting of the annual and quarterly reports required by clauses (1) and (2) of Section 4.03(a) announcing the date on which such reports will be made available to the Holders and directing Holders, research analysts and prospective purchasers to contact the investor relations office of the Issuer to obtain copies of such reports;
(2) maintain a website (which may be password protected so long as the password is made promptly available by the Issuer to Holders, research analysts and prospective purchasers) to which all of the reports and press releases required by this Section 4.03 are posted; and
(3) host and participate in customary quarterly conference calls (which may be a single conference call together with investors holding other securities of the Issuer and/or its Restricted Subsidiaries and/or any direct or indirect parent of the Issuer) to discuss operating results and related matters. The Issuer shall issue a press release which will provide the date and time of any such call and will direct Holders, prospective purchasers and research analysts to contact the investor relations office of the Issuer to obtain access to the conference call; provided, that the Issuer shall not be required to undertake the actions set forth in clauses (1), (2) and (3) of this Section 4.03(c) at any time that the Issuer or any direct or indirect parent thereof is otherwise undertaking similar actions on behalf of, and making similar information available to, investors holding other securities of the Issuer or any direct or indirect parent thereof; provided, further, that such information described in the immediately preceding proviso is made available to the Holders.
(d) The Issuer will make available copies of all reports required by clauses (1) through (3) of Section 4.03(a), if and so long as the applicable series of Notes is listed on the Official List of TISE and the rules of TISE so require, at the offices of the listing agent or, to the extent required and in the manner permitted by such rules, post such reports on the official website of TISE.
(e) In addition, to the extent not satisfied by the foregoing, the Issuer will, for so long as any Notes are outstanding, furnish to Holders and to prospective purchasers, upon their request, the information required to be delivered pursuant to Rule 144A(d)(4) under the Securities Act.
(ef) The Issuer may satisfy its obligations in this Section 4.03 with respect to financial information relating to the Issuer by furnishing financial information relating to a direct or indirect parent company; provided that, if and for so long as such parent company shall have Independent Assets or Operations (as defined below), the same is accompanied by consolidating information that explains in reasonable detail the differences between the information relating to such parent company, on the one hand, and the information relating to the Issuer and its Restricted Subsidiaries on a stand-alone basis, on the other hand. “Independent Assets or Operations” means, with respect to any such parent company, that such parent company’s total assets, revenues, income from continuing operations before income taxes and cash flows from operating activities (excluding in each case amounts related to its investment in the Issuer and the Restricted Subsidiaries), determined in accordance with GAAP and as shown on the most recent balance sheet of such parent company, is more than 3.0% of such parent company’s corresponding consolidated amount.
Appears in 1 contract
Samples: Indenture (Iqvia Holdings Inc.)
Reports and Other Information. (a) Notwithstanding that the Issuer may not be subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act or otherwise report on an annual and quarterly basis on forms provided for such annual and quarterly reporting pursuant to rules and regulations promulgated by the SEC, the Issuer shall furnish to the Trustee and Holders of the Notes (without exhibits) or post on its website (which may be password protected so long as the password is made promptly available by the Issuer to the Holders, research analysts and prospective purchasers upon request) no later than 15 days after the dates specified below:
(1) within 90 days after the end of each fiscal year (beginning with the fiscal year ending after the Issue Date), annual reports containing substantially all of the information required to be contained in an Annual Report on Form 10-K if the Issuer had been a reporting company under the Exchange Act (but only to the extent similar information is included in the Offering Memorandum); provided, that the Issuer shall not be required to provide the information otherwise required to be presented by reporting companies under the Exchange Act pursuant to Part III of Form 10-K except for such information as would be required by Item 401 of Regulation S-K (other than the information required by subsections (c) and (g) of such item), Item 403(a) of Regulation S-K and Item 404 of Regulation S-K (assuming a transaction threshold of $2,500,000 rather than $120,000 and other than information with respect to employment and compensation arrangements and the information required by Item 404(b));
(2) within 45 days after the end of each of the first three fiscal quarters of each fiscal year, reports containing substantially all of the information required to be contained in a Quarterly Report on Form 10-Q if the Issuer had been a reporting company under the Exchange Act (but only to the extent similar information is included in the Offering Memorandum); and
(3) within the later of 15 days after the occurrence of the specified event or within five (5) Business Days of the date on which an event would have been required to be reported on a Form 8-K (as in effect on the Issue Date), information pursuant to Items 1.01 (Entry into a Material Definitive Agreement), 1.02 (Termination of a Material Definitive Agreement), 1.03 (Bankruptcy or Receivership), 2.01 (Completion of Acquisition or Disposition of Assets), 2.04 (Triggering Events that Accelerate or Increase a Direct Financial Obligation or an Obligation under an Off-Balance Sheet Arrangement), 2.06 (Material Impairment), 4.01 (Changes in Registrant’s Certifying Accountants), 4.02 (Non-Reliance on Previously Issued Financial Statements or a Related Audit Report or Completed Interim Review), 5.01 (Changes in Control of Registrant), 5.02(a), (b) or (c) (Departure of Directors or Principal Officers; Election of Directors; Appointment of Principal Officers; Compensation Arrangements of Certain Officers) (other than any information relating to compensation arrangements with any directors or officers) and 9.01(a) (Financial Statements and Exhibits) (but only with respect to historical financial statements relating to transactions required to be reported pursuant to Item 2.01 and involving acquisitions of Persons that had revenues in excess of $500,000,000 for the last four completed fiscal quarters prior to the consummation of the acquisition) of a Current Report on Form 8-K (as in effect of the Issue Date); provided, that (a) no such report or information will be required to be so furnished if the Issuer determines in good faith that such event is not material to the Holders or the business, assets, operations or financial condition of the Issuer and its Restricted Subsidiaries, taken as a whole and (b) trade secrets and other confidential information that is competitively sensitive in the good faith and reasonable determination of the Issuer may be excluded from disclosures.
(b) The reports required pursuant to clauses (1), (2) and (3) of Section 4.03(a) will not be required to comply with (i) Section 302, Section 404 or Section 906 of the Xxxxxxxx-Xxxxx Act of 2002, (ii) related Items 307 and 308 of Regulation S-K promulgated by the SEC, (iii) Item 10(e) of Regulation S-K (with respect to any non-GAAP financial measures contained therein) or any comparable successor provision and (iv) Regulation S-X Rule 3-10.
(c) So long as any Notes are outstanding, the Lead Issuer will alsoshall have its annual consolidated financial statements audited by a nationally recognized firm of independent auditors. In addition, after the Issue Date, so long as any Notes are outstanding, the Lead Issuer shall furnish to the Holders of the Notes the following reports:
(1) issue (x) all annual and quarterly financial statements substantially in forms that would be required to be contained in a press release filing with the SEC on Forms 10-K and 10-Q of the Lead Issuer, if the Lead Issuer were required to an internationally recognized wire service no fewer than three Business Days prior file such forms, plus a “Management’s Discussion and Analysis of Financial Condition and Results of Operations” substantially consistent with the section in the Offering Memorandum; (y) with respect to the delivery or posting of the annual and quarterly reports information, a presentation of “Pro Forma Adjusted EBITDA” of the Lead Issuer substantially consistent with the presentation thereof in the Offering Memorandum and derived from such financial information; and (z) with respect to the annual financial statements only, a report on the annual financial statements by the Lead Issuer’s independent registered public accounting firm; and
(2) substantially the same information that would be required by to be contained in filings with the SEC on Form 8-K under Items 1.01, 1.02, 1.03, 2.01 (only with respect to acquisitions that are “significant” at the 20% or greater level pursuant to clauses (1) and (2) of Section 4.03(athe definition of “Significant Subsidiary” under Rule 1-02 of Regulation S-X only), 4.01, 4.02(a) announcing the date on which such reports will be made available and (b), 5.01 and 5.02
(b) (with respect to the Holders principal executive officer, president, principal financial officer, principal accounting officer and directing Holders, research analysts principal operating officer only) and prospective purchasers (c) (other than with respect to contact the investor relations office of the Issuer to obtain copies of such reports;
(2) maintain a website (which may be password protected so long as the password is made promptly available information otherwise required or contemplated by the Issuer to Holders, research analysts and prospective purchasers) to which all of the reports and press releases required by this Section 4.03 are posted; and
subclause (3) host and participate of such Item or by Item 402 of Regulation S-K) as in customary quarterly conference calls effect on the Issue Date if the Lead Issuer were required to file such re- ports; provided, however, that (which may A) no such report shall be required to include as an exhibit, or to include a single conference call together with investors holding other securities sum- xxxx of the terms of, any employment or compensatory arrangement, agreement, plan or understanding between the Lead Issuer and/or (or any of its Restricted Subsidiaries and/or any direct or indirect parent entities or its Subsidiaries) and any direc- tor, manager or officer, of the IssuerLead Issuer (or any of its direct or indirect parent entities or its Subsidiar- ies), (B) to discuss operating results and related matters. The Issuer shall issue a press release which will provide the date and time of any such call and will direct Holders, prospective purchasers and research analysts to contact the investor relations office of the Issuer to obtain access to the conference call; provided, that the Lead Issuer shall not be required to undertake make available any information regarding the actions occurrence of any of the events set forth in clauses (1), clause (2) above if the Lead Issuer determines in its good faith judgment that the event that would otherwise be required to be disclosed is not material to the Holders of the Notes or the business, assets, operations, financial positions or prospects of the Lead Issuer and its Restricted Subsidiaries taken as a whole, (C) no such report will be required to comply with Regulation G under the Exchange Act or Item 10(e) of Regulation S-K with respect to any “non-GAAP” financial information contained therein, (D) no such report shall be required to comply with Regulation S-X including, without limitation, Rules 3-05, 3-09, 3-10, 3-16, 13-01, 13-02 or Article 11 thereof, (E) no such report shall be required to provide any information that is not otherwise similar to information currently included in or incorporated by reference into the Offering Memorandum, (F) trade secrets and other information that could cause competitive harm to the Lead Issuer and its Restricted Subsidiaries may be excluded from any disclosures; and (3G) such financial statements and information may, at the election of the Lead Issuer, be prepared in accordance with U.S. GAAP or IFRS. All such annual reports shall be furnished within 90 days after the end of the fiscal year to which they relate; all such quarterly reports shall be furnished within 45 days after the end of the fiscal quarter to which they relate. The Lead Issuer will be deemed to have furnished the reports referred to in subclauses (1) and (2) of this Section 4.03(c4.03(a) at any time that the Issuer if Holdings or any other direct or indirect parent thereof is otherwise undertaking similar actions on behalf of, and making similar information available to, investors holding other securities entity of the Lead Issuer has filed reports containing such information (or any such information of a parent entity pursuant to the fourth suc- ceeding paragraph) with the SEC. If the Lead Issuer or any direct parent entity of the Lead Issuer does not file reports containing such in- formation with the SEC, then the Lead Issuer shall make available such information and such reports to any Holder of the Notes and to any beneficial owner of the Notes, in each case by posting such infor- mation on a password-protected website or indirect parent thereofonline data system which shall require a confidentiality ac- knowledgment, and shall make such information readily available to any bona fide prospective investor, any securities analyst (to the extent providing analysis of investment in the Notes) or any market maker in the Notes who agrees to treat such information as confidential; provided that the Lead Issuer shall post such information thereon and make readily available any password or other login information to any such bonda fide prospective investor, securities analyst or market maker; provided, however, that the Lead Is- xxxx may deny access to any competitively-sensitive information otherwise to be provided pursuant to this covenant to any such Holder, beneficial owner, bona fide prospective investor, securities analyst or mar- ket maker to the extent that the Lead Issuer determines in good faith that the provision of such infor- mation to such Person would be competitively harmful to the Lead Issuer and its Subsidiaries; and pro- vided, further, that such Holders, beneficial owners, bona fide prospective investors, securities analysts and market makers shall agree to (A) treat all such reports (and information described in the immediately preceding proviso is made available contained therein) as confi- dential, (B) not to the Holders.
use such reports (d) In addition, to the extent not satisfied by the foregoing, the Issuer will, for so long as any Notes are outstanding, furnish to Holders and to prospective purchasers, upon their request, the information required to be delivered pursuant to Rule 144A(d)(4) under the Securities Act.
(e) The Issuer may satisfy its obligations in this Section 4.03 with respect to financial information relating to the Issuer by furnishing financial information relating to a direct or indirect parent company; provided that, if and for so long as such parent company shall have Independent Assets or Operations (as defined below), the same is accompanied by consolidating information that explains in reasonable detail the differences between the information relating to such parent company, on the one hand, and the information relating to the Issuer and its Restricted Subsidiaries on a stand-alone basis, on the contained therein) for any purpose other hand. “Independent Assets than their investment or Operations” means, with respect to any such parent company, that such parent company’s total assets, revenues, income from continuing operations before income taxes and cash flows from operating activities (excluding in each case amounts related to its potential investment in the Issuer Notes and (C) not publicly disclose any such reports (and the Restricted Subsidiariesinformation contained therein), determined in accordance with GAAP and as shown on the most recent balance sheet of such parent company, is more than 3.0% of such parent company’s corresponding consolidated amount.
Appears in 1 contract
Samples: Indenture (CONDUENT Inc)
Reports and Other Information. (a) Notwithstanding For so long as the Company is subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act, the Company will file with the SEC (subject to the next sentence), and provide to the Trustee and holders of the Notes, within the time periods specified in such Sections:
(i) all quarterly and annual reports that would be required to be filed with the Issuer may SEC on Forms 10-Q and 10-K if the Company were required to file such reports; and
(ii) all current reports that would be required to be filed with the SEC on Form 8-K if the Company were required to file such reports. All such reports will be prepared in all material respects in accordance with the rules and regulations applicable to such reports. While the Company remains subject to the periodic reporting requirements of the Exchange Act, the Company agrees that it will not be take any action for the purpose of causing the SEC not to accept such filings.
(b) If, at any time, the Company is not subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act or otherwise report on an annual and quarterly basis on forms provided for such annual and quarterly reporting pursuant to rules and regulations promulgated by the SECany reason, the Issuer shall furnish to Company will nevertheless post the Trustee and Holders substance of the Notes reports specified in Section 4.01(a) (without exhibits) other than separate financial statements or post on its website (which may be password protected so long as the password is made promptly available by the Issuer to the Holders, research analysts and prospective purchasers upon request) no later than 15 days after the dates specified below:
(1) within 90 days after the end of each fiscal year (beginning with the fiscal year ending after the Issue Date), annual reports containing substantially all of the condensed consolidating financial information required to be contained in an Annual Report on Form 10by Rule 3-K if the Issuer had been a reporting company under the Exchange Act (but only to the extent similar information is included in the Offering Memorandum); provided, that the Issuer shall not be required to provide the information otherwise required to be presented by reporting companies under the Exchange Act pursuant to Part III of Form 1010 or 3-K except for such information as would be required by Item 401 16 of Regulation S-K (other than X) on its website and will provide those to the information required by subsections (c) and (g) of such item), Item 403(a) of Regulation S-K and Item 404 of Regulation S-K (assuming a transaction threshold of $2,500,000 rather than $120,000 and other than information with respect to employment and compensation arrangements and the information required by Item 404(b));
(2) within 45 days after the end of each of the first three fiscal quarters of each fiscal year, reports containing substantially all of the information required to be contained in a Quarterly Report on Form 10-Q if the Issuer had been a reporting company under the Exchange Act Trustee (but only to the extent similar information is included in the Offering Memorandum); and
(3) within the later of 15 days after the occurrence of the specified event or within five (5) Business Days of the date on which an event would have been required to be reported on a Form 8-K (as in effect on the Issue Date), information pursuant to Items 1.01 (Entry into a Material Definitive Agreement), 1.02 (Termination of a Material Definitive Agreement), 1.03 (Bankruptcy or Receivership), 2.01 (Completion of Acquisition or Disposition of Assets), 2.04 (Triggering Events that Accelerate or Increase a Direct Financial Obligation or an Obligation under an Off-Balance Sheet Arrangement), 2.06 (Material Impairment), 4.01 (Changes in Registrant’s Certifying Accountants), 4.02 (Non-Reliance on Previously Issued Financial Statements or a Related Audit Report or Completed Interim Review), 5.01 (Changes in Control of Registrant), 5.02(a), (b) or (c) (Departure of Directors or Principal Officers; Election of Directors; Appointment of Principal Officers; Compensation Arrangements of Certain Officers) (other than any information relating to compensation arrangements with any directors or officers) and 9.01(a) (Financial Statements and Exhibits) (but only with respect to historical financial statements relating to transactions required to be reported pursuant to Item 2.01 and involving acquisitions of Persons that had revenues in excess of $500,000,000 for the last four completed fiscal quarters prior to the consummation of the acquisition) of a Current Report on Form 8-K (as in effect of the Issue Date); provided, that (a) no such report or information will be required to be so furnished if the Issuer determines in good faith that such event is not material to the Holders or the business, assets, operations or financial condition of the Issuer and its Restricted Subsidiaries, taken as a whole and (b) trade secrets and other confidential information that is competitively sensitive in the good faith and reasonable determination of the Issuer may be excluded from disclosures.
(b) The reports required pursuant to clauses (1), (2) and (3) of Section 4.03(a) will not be required to comply file such reports with (i) Section 302the SEC), Section 404 or Section 906 of in each case within the Xxxxxxxx-Xxxxx Act of 2002time periods that would apply if the Company were required to file those reports with the SEC; provided that, (ii1) related Items 307 and 308 of Regulation S-K promulgated by the SEC, (iii) Item 10(e) of Regulation S-K (with respect to the quarter ended March 31, 2015, the Company may provide the information required by this Section 4.02(b) with respect to such quarter at any non-GAAP financial measures contained thereintime on or prior to June 30, 2015, including by means of an amendment to the Form 10, (2) with respect to the quarter ended June 30, 2015, if the separation and distribution have not occurred on or prior to August 14, 2015, the Company may provide the information required by this Section 4.02(b) with respect to such quarter at any comparable successor provision time on or prior to September 30, 2015, including by means of an amendment to the Form 10 and (iv3) Regulation S-X Rule 3-with respect to the quarter ended September 30, 2015, if the separation and distribution have not occurred on or prior to November 16, 2015, the Company may provide the information required by this Section 4.02(b) with respect to such quarter at any time on or prior to November 30, 2015, including by means of an amendment to the Form 10.
(c) So long as any Notes are outstanding, the Issuer will also:
(1) issue a press release to an internationally recognized wire service no fewer than three Business Days prior to the delivery or posting of the annual and quarterly reports required by clauses (1) and (2) of Section 4.03(a) announcing the date on which such reports will be made available to the Holders and directing Holders, research analysts and prospective purchasers to contact the investor relations office of the Issuer to obtain copies of such reports;
(2) maintain a website (which may be password protected so long as the password is made promptly available by the Issuer to Holders, research analysts and prospective purchasers) to which all of the reports and press releases required by this Section 4.03 are posted; and
(3) host and participate in customary quarterly conference calls (which may be a single conference call together with investors holding other securities of the Issuer and/or its Restricted Subsidiaries and/or any direct or indirect parent of the Issuer) to discuss operating results and related matters. The Issuer shall issue a press release which will provide the date and time of any such call and will direct Holders, prospective purchasers and research analysts to contact the investor relations office of the Issuer to obtain access to the conference call; provided, that the Issuer shall not be required to undertake the actions set forth in clauses (1), (2) and (3) For purposes of this Section 4.03(c) at any time that 4.02, the Issuer Company will be deemed to have provided a required report to the Trustee and holders of the Notes if it has timely filed such report with the SEC via the XXXXX filing system (or any direct or indirect parent thereof is otherwise undertaking similar actions on behalf of, and making similar information available to, investors holding other securities of the Issuer or any direct or indirect parent thereof; provided, further, that such information described in the immediately preceding proviso is made available to the Holderssuccessor system).
(d) In addition, At any time when the Company is not subject to the extent not satisfied by reporting requirements of Section 13 or 15(d) of the foregoingExchange Act, the Issuer will, for so long as any Notes are outstanding, Company will furnish to Holders the holders of the Notes and to prospective purchasersinvestors, upon their requestthe requests of such holders, the any information required to be delivered pursuant to Rule 144A(d)(4) under the Securities Act so long as the Notes are not freely transferable under the Securities Act.
(e) The Issuer Notwithstanding the foregoing, in the event that any direct or indirect parent company of the Company becomes a Guarantor, the Company may satisfy its obligations in pursuant to this Section 4.03 4.02 with respect to financial information relating to the Issuer Company by furnishing or filing the required financial information relating to a such direct or indirect parent company; provided .
(f) In addition, (i) the Trustee shall be entitled (but not obligated) and (ii) holders of not less than 25% of the aggregate principal amount of the then outstanding Notes of a series shall be entitled, each at any time, to request in writing that the Company provide to the Trustee, within 20 Business Days following such request, an Officer’s Certificate confirming whether or not the Company, as at the end of the most recently ended quarterly period, had designated any of its Subsidiaries to be Unrestricted Subsidiaries that, if alone or taken together, represented either (a) 10% or more of the total assets of the Company as at the end of the relevant period, (b) 10% or more of the consolidated net income of the Company for the relevant most recent consecutive four-quarter period, or (c) 10% or more of the consolidated earnings before interest, tax, depreciation and amortization of the Company for so long as the relevant most recent consecutive four- quarter period (the “Trustee Notice Requirement”). A copy of any such parent company request delivered by the relevant holders pursuant to clause (ii) above shall have Independent Assets or Operations (as defined below)be provided to the Trustee. If the Trustee Notice Requirement is satisfied, the same is accompanied by consolidating information that explains in reasonable detail Officer’s Certificate to be delivered pursuant to the differences between foregoing requirement shall specify (a) the information relating to such parent companyTotal Assets, on the one hand, Consolidated Net Income and the information relating to EBITDA of the Issuer Company and its Restricted Subsidiaries on a stand-alone basis, on and (b) the other hand. “Independent Assets or Operations” means, with respect to any such parent company, that such parent company’s total assets, revenues, the consolidated net income from continuing operations before income taxes and cash flows from operating activities (excluding in each case amounts related to its investment in the Issuer and the Restricted earnings before interest, tax, depreciation and amortization of the Unrestricted Subsidiaries. The Trustee shall deliver such Officer’s Certificate to the Holders of the Notes within five Business Days of the date of receipt by the Trustee of the Officer’s Certificate, and the Trustee shall not have any responsibility or liability for any information set forth in such Officer’s Certificate or for any analysis thereof.
(g) Delivery of reports, information and documents to the Trustee under this Section 4.02 is for informational purposes only, and the Trustee’s receipt of the foregoing shall not constitute constructive notice of any information contained therein or determinable from information contained therein, including the Company’s compliance with any of its covenants hereunder (as to which the Trustee is entitled to rely on Officer’s Certificates). The Trustee shall have no responsibility or liability for the content, determined in accordance with GAAP and filing or timeliness of any report to be issued or filed by the Company or Guarantors, as shown on the most recent balance sheet of such parent company, is more than 3.0% of such parent company’s corresponding consolidated amountapplicable.
Appears in 1 contract
Samples: Indenture (Chemours Co)
Reports and Other Information. (a) Notwithstanding that So long as any Notes are outstanding, the Issuer may not be subject Company shall furnish to the reporting requirements of Section 13 or 15(dHolders (with a copy to the Trustee):
(1) of the Exchange Act or otherwise report on an (A) all annual and quarterly basis financial statements substantially in forms that would be required to be contained in a filing with the SEC on forms provided Forms 10-K and 10-Q of the Company, if the Company were required to file such forms, plus a “Management’s Discussion and Analysis of Financial Condition and Results of Operations” and (B) with respect to the annual financial statements only, a report on the annual financial statements by the Company’s independent registered public accounting firm; and
(2) promptly after the occurrence of an event required to be therein reported, such other information containing substantially the same information that would be required to be contained in filings with the SEC on Form 8-K under Items 1.01, 1.02, 1.03, 2.01, 2.05, 2.06, 4.01, 4.02, 5.01 and 5.02(b) and (c) (other than with respect to information otherwise required or contemplated by Item 402 of Regulation S-K promulgated by the SEC) as in effect on the Effective Date if the Company were required to file such reports; provided, however, that no such current report will be required to include as an exhibit, or to include a summary of the terms of, any employment or compensatory arrangement agreement, plan or understanding between the Company (or any of its Subsidiaries) and any director, manager or executive officer of the Company (or any of its Subsidiaries); provided, however, that (i) in no event shall such reports be required to comply with Rule 3-10, 13-01 or 13-02 of Regulation S-X promulgated by the SEC or contain separate financial statements for such annual and quarterly reporting pursuant the Company, the Guarantors or other Subsidiaries the shares of which are pledged to rules and regulations secure the Notes or any Guarantee that would be required under Rule 3-09, 3-10, 3-16, 13-01 or 13-02 of Regulation S-X, respectively, promulgated by the SEC, the Issuer (ii) in no event shall furnish to the Trustee and Holders of the Notes (without exhibits) or post on its website (which may such reports be password protected so long as the password is made promptly available by the Issuer to the Holders, research analysts and prospective purchasers upon request) no later than 15 days after the dates specified below:
(1) within 90 days after the end of each fiscal year (beginning with the fiscal year ending after the Issue Date), annual reports containing substantially all of the information required to be contained in an Annual Report on Form 10-K if the Issuer had been a reporting company comply with Regulation G under the Exchange Act (but only to the extent similar information is included in the Offering Memorandum); provided, that the Issuer shall not be required to provide the information otherwise required to be presented by reporting companies under the Exchange Act pursuant to Part III of Form 10-K except for such information as would be required by or Item 401 of Regulation S-K (other than the information required by subsections (c) and (g) of such item), Item 403(a10(e) of Regulation S-K and Item 404 of Regulation S-K (assuming a transaction threshold of $2,500,000 rather than $120,000 and other than information promulgated by the SEC with respect to employment and compensation arrangements and the information required by Item 404(b));
any non-GAAP financial measures contained therein, (iii) no such reports referenced under clause (2) within 45 days after the end of each of the first three fiscal quarters of each fiscal year, reports containing substantially all of the information required to be contained in a Quarterly Report on Form 10-Q if the Issuer had been a reporting company under the Exchange Act (but only to the extent similar information is included in the Offering Memorandum); and
(3) within the later of 15 days after the occurrence of the specified event or within five (5) Business Days of the date on which an event would have been required to be reported on a Form 8-K (as in effect on the Issue Date), information pursuant to Items 1.01 (Entry into a Material Definitive Agreement), 1.02 (Termination of a Material Definitive Agreement), 1.03 (Bankruptcy or Receivership), 2.01 (Completion of Acquisition or Disposition of Assets), 2.04 (Triggering Events that Accelerate or Increase a Direct Financial Obligation or an Obligation under an Off-Balance Sheet Arrangement), 2.06 (Material Impairment), 4.01 (Changes in Registrant’s Certifying Accountants), 4.02 (Non-Reliance on Previously Issued Financial Statements or a Related Audit Report or Completed Interim Review), 5.01 (Changes in Control of Registrant), 5.02(a), (b) or (c) (Departure of Directors or Principal Officers; Election of Directors; Appointment of Principal Officers; Compensation Arrangements of Certain Officers) (other than any information relating to compensation arrangements with any directors or officers) and 9.01(a) (Financial Statements and Exhibits) (but only with respect to historical financial statements relating to transactions required to be reported pursuant to Item 2.01 and involving acquisitions of Persons that had revenues in excess of $500,000,000 for the last four completed fiscal quarters prior to the consummation of the acquisition) of a Current Report on Form 8-K (as in effect of the Issue Date); provided, that (a) no such report or information will above shall be required to be so furnished if the Issuer Company determines in its good faith judgment that such event is not material to the Holders or the business, assets, operations or financial condition position of the Issuer Company and its the Restricted Subsidiaries, taken as a whole and whole, (biv) trade secrets and other confidential in no event shall such reports be required to include any information that is competitively sensitive not otherwise similar to information included in the good faith Offering Circular, other than with respect to reports provided under clause (2) above and reasonable determination (v) in no event shall reports referenced in clause (2) above be required to include as an exhibit copies of any agreements, financial statements or other items that would be required to be filed as exhibits to a current report on Form 8-K except for (x) agreements evidencing material Indebtedness and (y) historical and pro forma financial statements to the extent reasonably available. All such annual reports shall be furnished within 120 days after the end of the Issuer may fiscal year to which they relate, and all such quarterly reports shall be excluded furnished within 60 days after the end of the fiscal quarter to which they relate. At any time that any of the Company’s Subsidiaries are Unrestricted Subsidiaries and if any such Unrestricted Subsidiary or group of Unrestricted Subsidiaries, if taken together as one Subsidiary, would constitute a Significant Subsidiary of the Company, then the quarterly and annual financial information required by the preceding paragraph will include a reasonably detailed presentation in the “Management’s Discussion and Analysis of Financial Condition and Results of Operations” or other comparable section, of the financial condition and results of operations of the Company and Restricted Subsidiaries separate from disclosuresthe financial condition and results of operations of such Unrestricted Subsidiaries of the Company. Notwithstanding any provision to the contrary in this Indenture, to the extent any of the information required to be furnished pursuant to Section 4.03(a) is not so furnished within the time periods specified above and is subsequently furnished, the Company will be deemed to have satisfied its obligations with respect thereto with effect from such time and any Default or Event of Default with respect thereto shall be deemed to have been cured with effect from such time.
(b) The reports required pursuant to clauses (1), (2) and (3) of Section 4.03(a) will not be required to comply with (i) Section 302, Section 404 or Section 906 of the Xxxxxxxx-Xxxxx Act of 2002, (ii) related Items 307 and 308 of Regulation S-K promulgated by the SEC, (iii) Item 10(e) of Regulation S-K (with respect to any non-GAAP financial measures contained therein) or any comparable successor provision and (iv) Regulation S-X Rule 3-10.
(c) So long as any Notes are outstanding, the Issuer Company shall also make available such information and such reports to any Holder and, upon request, to any beneficial owner of the Notes, securities analysts providing analysis of investment in the Notes and market makers, in each case by posting such information on its website, on Intralinks or any comparable password-protected online data system which will also:
require a confidentiality acknowledgment, and will make such information readily available to any Holder, beneficial owners of Notes, any prospective investor in the Notes, any securities analyst (1) issue a press release to an internationally recognized wire service no fewer than three Business Days prior to the delivery extent providing analysis of investment in the Notes) or posting of any market maker in the annual and quarterly reports required by clauses (1) and (2) of Section 4.03(a) announcing the date Notes who agrees to treat such information as confidential or accesses such information on which such reports will be made available to the Holders and directing Holders, research analysts and prospective purchasers to contact the investor relations office of the Issuer to obtain copies of such reports;
(2) maintain a website (which may be password Intralinks or any comparable password-protected so long as the password is made promptly available by the Issuer to Holders, research analysts and prospective purchasers) to which all of the reports and press releases required by this Section 4.03 are posted; and
(3) host and participate in customary quarterly conference calls (which may be a single conference call together with investors holding other securities of the Issuer and/or its Restricted Subsidiaries and/or any direct or indirect parent of the Issuer) to discuss operating results and related matters. The Issuer shall issue a press release online data system which will provide require a confidentiality acknowledgment; provided that the date Company shall post such information thereon and time of make readily available any password or other login information to any such call and will direct HoldersHolder, beneficial owner of Notes, prospective purchasers and research analysts to contact the investor relations office of the Issuer to obtain access to the conference call; providedinvestor, that the Issuer shall not be required to undertake the actions set forth in clauses (1), (2) and (3) of this Section 4.03(c) at any time that the Issuer securities analyst or any direct or indirect parent thereof is otherwise undertaking similar actions on behalf of, and making similar information available to, investors holding other securities of the Issuer or any direct or indirect parent thereofmarket maker; provided, further, however, the Company may deny access to any competitively-sensitive information otherwise to be provided pursuant to this paragraph to any such Holder, prospective investor, security analyst or market maker that is a competitor of the Company and its Subsidiaries to the extent that the Company determines in good faith that the provision of such information to such Person would be competitively harmful to the Company and its Subsidiaries; and provided, still further, that such Holders, prospective investors, security analysts or market makers shall agree to (i) treat all such reports (and the information described contained therein) and information as confidential, (ii) not use such reports and the information contained therein for any purpose other than their investment or potential investment in the immediately preceding proviso is made available Notes (but shall be authorized to trade the HoldersCompany’s securities) and (iii) not publicly disclose any such reports (and the information contained therein).
(dc) In addition, to To the extent not satisfied by the foregoingthis Section 4.03, the Issuer will, for so long as any Notes are outstanding, Company shall furnish to Holders and to prospective purchasersinvestors, upon their request, the any information required to be delivered pursuant to Rule 144A(d)(4) under the Securities Act so long as the Notes are not freely transferable under the Securities Act.
(ed) The Issuer Company may satisfy its obligations in under this Section 4.03 with respect to financial information relating to the Issuer Company by furnishing financial information relating to a direct or indirect parent companyany Parent Entity (including, for the avoidance of doubt, any financial statement predecessor of such Parent Entity, as applicable) instead of the Company; provided thatthat to the extent financial information related to such Parent Entity (or predecessor) is provided, if and for so long as such parent company shall have Independent Assets or Operations (as defined below), the same information is accompanied by consolidating information selected financial metrics that explains show certain differences (in reasonable detail the differences Company’s sole discretion), between the information relating to of such parent companyParent Entity (or predecessor), on the one hand, and the information relating to the Issuer Company and its Restricted Subsidiaries on a stand-alone basis, on the other hand.
(e) The Company shall be deemed to have furnished the reports referred to in Sections 4.03(a)(i) and (ii) if the Company or any Parent Entity has filed reports containing such information with the SEC.
(f) Delivery of information and documents provided for under this Section 4.03 to the Trustee is for informational purposes only and the Trustee’s receipt of such shall not constitute actual or constructive notice of any information contained therein or determinable from information contained therein, including the Company’s compliance with any of their covenants hereunder (as to which the Trustee is entitled to rely exclusively on Officer’s Certificates). “Independent Assets The Trustee shall have no responsibility whatsoever to determine whether any filing or Operations” meansposting referred to in this Section 4.03 has occurred.
(g) Notwithstanding anything to the contrary set forth in this Section 4.03, if at any time the Company or any Parent Entity has made a good faith determination to file a registration statement with the SEC with respect to any such parent companyequity or debt securities, that such parent company’s total assetsthe Company will not be required to disclose any information or take any actions that, revenues, income from continuing operations before income taxes and cash flows from operating activities (excluding in each case amounts related to its investment in the Issuer and good faith view of the Restricted Subsidiaries)Company, determined in accordance with GAAP and as shown on would violate applicable securities laws or the most recent balance sheet of such parent company, is more than 3.0% of such parent companySEC’s corresponding consolidated amount“gun jumping” rules.
Appears in 1 contract
Samples: Indenture (MultiPlan Corp)
Reports and Other Information. (a) Notwithstanding that the Issuer may Whether or not be Parent is subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act or otherwise report on an annual and quarterly basis on forms provided for such annual and quarterly reporting pursuant to rules and regulations promulgated by the SECAct, the Issuer so long as any Notes are outstanding, Parent shall furnish to the Trustee and Holders of the Notes (without exhibits) or post on its website (which may be password protected so long as the password is made promptly available by the Issuer to the Holders, research analysts and prospective purchasers upon request) no later than 15 days after the dates specified below:
Trustee: (1) within 90 days after the end of each fiscal year (beginning with the fiscal year ending after the Issue Date)end of Parent, annual reports containing substantially all of the financial information that would be required to be contained in an Annual Report annual report on Form 10-K if K, or any successor or comparable form, filed with the Issuer had been SEC, including a reporting company under “Management’s Discussion and Analysis of Financial Condition and Results of Operations” and a report on the Exchange Act (but only to the extent similar information is included in the Offering Memorandum)annual financial statements of Xxxxxx’s independent registered public accounting firm; provided, that the Issuer shall not be required to provide the information otherwise required to be presented by reporting companies under the Exchange Act pursuant to Part III of Form 10-K except for such information as would be required by Item 401 of Regulation S-K (other than the information required by subsections (c) and (g) of such item), Item 403(a) of Regulation S-K and Item 404 of Regulation S-K (assuming a transaction threshold of $2,500,000 rather than $120,000 and other than information with respect to employment and compensation arrangements and the information required by Item 404(b));
(2) within 45 days after the end of each of the first three fiscal quarters of each fiscal yearyear of Parent, reports containing substantially all of the financial information that would be required to be contained in a Quarterly Report quarterly report on Form 10-Q if Q, or any successor or comparable form, filed with the Issuer had been a reporting company under the Exchange Act (but only to the extent similar information is included in the Offering Memorandum)SEC; and
and (3) within the later of 15 days ten Business Days after the occurrence of such an event, the specified event or within five (5) Business Days of the date on which an event information that would have been be required to be reported on a Form 8-K (as contained in effect on filings with the Issue Date), information pursuant to Items 1.01 (Entry into a Material Definitive Agreement), 1.02 (Termination of a Material Definitive Agreement), 1.03 (Bankruptcy or Receivership), 2.01 (Completion of Acquisition or Disposition of Assets), 2.04 (Triggering Events that Accelerate or Increase a Direct Financial Obligation or an Obligation under an Off-Balance Sheet Arrangement), 2.06 (Material Impairment), 4.01 (Changes in Registrant’s Certifying Accountants), 4.02 (Non-Reliance on Previously Issued Financial Statements or a Related Audit Report or Completed Interim Review), 5.01 (Changes in Control of Registrant), 5.02(a), (b) or (c) (Departure of Directors or Principal Officers; Election of Directors; Appointment of Principal Officers; Compensation Arrangements of Certain Officers) (other than any information relating to compensation arrangements with any directors or officers) and 9.01(a) (Financial Statements and Exhibits) (but only with respect to historical financial statements relating to transactions required to be reported pursuant to Item 2.01 and involving acquisitions of Persons that had revenues in excess of $500,000,000 for the last four completed fiscal quarters prior to the consummation of the acquisition) of a Current Report SEC on Form 8-K under Items 1.01, 1.02, 1.03, 2.01, 2.05, 2.06, 4.01, 4.02, 5.01 and 5.02(b), 5.02(c) and 5.02(d) (as in effect other than with respect to information required or contemplated by Item 402 of the Issue Date)Regulation S-K) if Parent were required to file such reports; provided, however, that (a) no such current report or information will shall be required to be so furnished if the Issuer Parent determines in its good faith judgment that such event is not material to the Holders or the business, assets, operations operations, financial position or financial condition prospects of the Issuer Parent and its Restricted Subsidiaries, taken as a whole and (b) trade secrets and whole; provided further that the foregoing shall not obligate Parent to make available copies of any agreements, financial statements or other confidential information items that is competitively sensitive in the good faith and reasonable determination of the Issuer may would be excluded from disclosures.required to be filed as exhibits to a current report on Form 8-K.
(b) The reports required pursuant to clauses (1)Notwithstanding the foregoing, (2) and (3) of Section 4.03(a) Parent will not be required to comply with furnish any information, certificates or reports required by (i) Section 302, Section 404 or Section 906 of the Xxxxxxxx-Xxxxx Act of 2002, or related Items 307 or 308 of Regulation S-K, (ii) related Items 307 and 308 Regulation G or Item 10(e) of Regulation S-K promulgated by the SEC, (iii) Item 10(e) of Regulation S-K (SEC with respect to any non-GAAP generally accepted accounting principles financial measures contained thereintherein or (iii) or any comparable successor provision Rule 3-09 and (iv) 3-10 of Regulation S-X Rule 3-10.X.
(c) So long If Parent is not subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act, Parent shall deliver such information and such reports to any Holder of a Note and, upon request, to any beneficial owner of the Notes, in each case by posting such information on password-protected website which will require a confidentiality acknowledgment, and will make such information readily available to any prospective investor in the Notes that certifies that it is an eligible purchaser of the Notes, any securities analyst (to the extent providing analysis of investment in the Notes) or any market maker in the Notes, in each case who (i) agrees to treat such information as confidential or (ii) accesses such information on such password-protected website which will require a confidentiality acknowledgment; provided that Parent shall post such information thereon and make readily available any Notes are outstandingpassword or other login information to any such prospective investor in the Notes, securities analyst (to the Issuer extent providing analysis of investment in the Notes) or market maker in the Notes. Parent will also:
hold a quarterly conference call for all Holders and securities analysts (1to the extent providing analysis of investment in the Notes) issue a press release to an internationally recognized wire service no fewer than three discuss such financial information within ten Business Days prior to the delivery after distribution of such financial information or posting otherwise providing substantially comparable availability of the annual and quarterly reports required by clauses (1) and (2) of Section 4.03(a) announcing the date on which such reports will (as determined by Parent in good faith) (it being understood that, without limitation, making such reports available on Bloomberg or another private electronic information service shall constitute substantially comparable availability); it being understood that any customary quarterly earnings calls with public equity holders shall be made available deemed to the Holders and directing Holders, research analysts and prospective purchasers to contact the investor relations office of the Issuer to obtain copies of constitute such reports;
(2) maintain a website (which may be password protected so long as the password is made promptly available by the Issuer to Holders, research analysts and prospective purchasers) to which all of the reports and press releases required by this Section 4.03 are posted; and
(3) host and participate in customary quarterly conference calls (which may be a single conference call together with investors holding other for all Holders and such securities of the Issuer and/or its Restricted Subsidiaries and/or any direct or indirect parent of the Issuer) to discuss operating results and related matters. The Issuer shall issue a press release which will provide the date and time of any such call and will direct Holders, prospective purchasers and research analysts to contact the investor relations office of the Issuer to obtain access to the conference callanalysts; provided, however, that if Parent is subject to the Issuer shall reporting requirements of Section 13 or 15(d) of the Exchange Act and has timely filed all applicable periodic reports required thereby, Parent will not be required to undertake the actions set forth hold such a quarterly conference call so long as Parent makes one or more Officers available during normal business hours to answer any reasonable questions of Holders and security analysts in clauses (1), (2) and (3) respect of this Section 4.03(c) at any time that the Issuer or any direct or indirect parent thereof is otherwise undertaking similar actions on behalf of, and making similar information available to, investors holding other securities of the Issuer or any direct or indirect parent thereof; provided, further, that such information described in the immediately preceding proviso is made available to the Holdersfinancial information.
(d) In addition, to To the extent not satisfied by the foregoing, the Issuer will, for so long as any Notes are outstanding, Parent will also furnish to Holders Holders, securities analysts (to the extent providing analysis of investment in the Notes) and to prospective purchasers, investors in the Notes upon their request, request the information required to be delivered pursuant to Rule 144A(d)(4) under the Securities Act, so long as the Notes are not freely transferable under the Securities Act.
(e) The Issuer may satisfy If Parent has designated any of its obligations in Subsidiaries as an Unrestricted Subsidiary and if any such Unrestricted Subsidiary or group of Unrestricted Subsidiaries, if taken together as one Subsidiary, would constitute a Significant Subsidiary of Parent, then the annual and quarterly information required by clauses (a)(1) and (2) of this Section 4.03 with respect to financial information relating to the Issuer by furnishing financial information relating to 4.02 shall include a direct or indirect parent company; provided thatreasonably detailed presentation, if and for so long as such parent company shall have Independent Assets or Operations (as defined below), the same is accompanied by consolidating information that explains in reasonable detail the differences between the information relating to such parent company, either on the one handface of the financial statements or in the footnotes thereto, of the financial condition and the information relating to results of operations of the Issuer and its Restricted Subsidiaries on a stand-alone basis, on separate from the other handfinancial condition and results of operations of such Unrestricted Subsidiaries.
(f) Parent will be deemed to have furnished the reports referred to in Section 4.02(a) if Parent has filed reports containing such information with the SEC. “Independent Assets or Operations” means, with respect The Trustee shall have no duty to monitor whether any such parent companyfilings have been made.
(g) Delivery of such reports, that such parent company’s total assets, revenues, income from continuing operations before income taxes information and cash flows from operating activities (excluding in each case amounts related documents to its investment in the Issuer Trustee is for informational purposes only and the Restricted Subsidiaries), determined in accordance with GAAP and as shown on the most recent balance sheet Trustee’s receipt of such parent companyshall not constitute actual or constructive knowledge or notice of any information contained therein or determinable from information contained therein, including any default or the Issuer’s compliance with any of its covenants hereunder (as to which the Trustee is more than 3.0% of such parent companyentitled to rely exclusively on an Officer’s corresponding consolidated amountCertificate).
Appears in 1 contract
Reports and Other Information. (a) Notwithstanding that the Issuer may not be subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act or otherwise report on an annual and quarterly basis on forms provided for such annual and quarterly reporting pursuant to rules and regulations promulgated by the SECSo long as any Notes are Outstanding, the Issuer shall furnish to the Trustee and Holders of the Notes (without exhibits) or post on its website (which may be password protected so long as the password is made promptly available by the Issuer to the Holders, research analysts and prospective purchasers upon request) no later than 15 days after the dates specified below:
(1) within 90 days after the end of each fiscal year (beginning with the fiscal year ending after the Issue Date), x) all annual reports containing and quarterly financial statements substantially all of the information in forms that would be required to be contained in an Annual Report a filing with the SEC on Form Forms 10-K if and 10-Q of the Issuer, plus a “Management’s Discussion and Analysis of Financial Condition and Results of Operations” and (y) with respect to the annual financial statements only, a report on the annual financial statements by the Issuer’s independent registered public accounting firm; and
(2) promptly after the occurrence of an event required to be therein reported, such other information containing substantially the same information that would be required to be contained in filings with the SEC on Form 8-K under Items 1.01, 1.02, 1.03, 2.01, 2.03, 2.04, 2.05, 2.06, 3.01, 4.01, 4.02(a) and (b), 5.01 and 5.02; provided, however, that no such current report will be required to include as an exhibit, or to include a summary of the terms of, any employment or compensatory arrangement agreement, plan or understanding between the Issuer had been a reporting company (or any of its Subsidiaries) and any director, manager or executive officer, of the Issuer (or any of its Subsidiaries); provided, however, that (i) in no event shall such information and reports be required to comply with Rule 13-01 of Regulation S-X promulgated by the SEC or contain any financial statements of unconsolidated Subsidiaries or 50% or less owned Persons under Rule 3-09 of Regulation S-X or any schedules required by Regulation S-X or contain separate financial statements for the Issuer, the Guarantors or other Affiliates the shares of which are pledged to secure the Notes or any Note Guarantee that would be required under Rule 13-01 of Regulation S-X or Rule 13-02 of Regulation S-X promulgated by the SEC, (ii) in no event shall such information and reports be required to comply with Regulation G under the Exchange Act (but only to the extent similar information is included in the Offering Memorandum); provided, that the Issuer shall not be required to provide the information otherwise required to be presented by reporting companies under the Exchange Act pursuant to Part III of Form 10-K except for such information as would be required by or Item 401 of Regulation S-K (other than the information required by subsections (c) and (g) of such item), Item 403(a10(e) of Regulation S-K and Item 404 of Regulation S-K (assuming a transaction threshold of $2,500,000 rather than $120,000 and other than information promulgated by the SEC with respect to employment any non-GAAP financial measures contained therein, (iii) in no event shall such information and compensation arrangements and the information required by Item 404(b));
(2) within 45 days after the end of each of the first three fiscal quarters of each fiscal year, reports containing substantially all of the information be required to be contained in a Quarterly Report on Form 10-Q if the Issuer had been a reporting company under the Exchange Act (but only include any information that is not otherwise similar to the extent similar information is currently included in the Offering Memorandum); and
(3) within the later of 15 days after the occurrence of the specified event or within five (5) Business Days of the date on which an event would have been required to be reported on a Form 8-K (as in effect on the Issue Date), information pursuant to Items 1.01 (Entry into a Material Definitive Agreement), 1.02 (Termination of a Material Definitive Agreement), 1.03 (Bankruptcy or Receivership), 2.01 (Completion of Acquisition or Disposition of Assets), 2.04 (Triggering Events that Accelerate or Increase a Direct Financial Obligation or an Obligation under an Off-Balance Sheet Arrangement), 2.06 (Material Impairment), 4.01 (Changes in Registrant’s Certifying Accountants), 4.02 (Non-Reliance on Previously Issued Financial Statements or a Related Audit Report or Completed Interim Review), 5.01 (Changes in Control of Registrant), 5.02(a), (b) or (c) (Departure of Directors or Principal Officers; Election of Directors; Appointment of Principal Officers; Compensation Arrangements of Certain Officers) (other than any information relating to compensation arrangements with any directors or officers) and 9.01(a) (Financial Statements and Exhibits) (but only with respect to historical financial statements relating to transactions required to be reported pursuant to Item 2.01 reports provided under Section 10.09(a)(2) above and involving acquisitions of Persons that had revenues in excess of $500,000,000 for the last four completed fiscal quarters prior to the consummation of the acquisition) of a Current Report on Form 8-K (as in effect of the Issue Date); provided, that (aiv) no such report or information will and reports referenced under Section 10.09(a)(2) above shall be required to be so furnished if the Issuer determines in its good faith judgment that such event is not material to the Holders or the business, assets, operations or financial condition position of the Issuer and its Restricted Subsidiaries, taken as a whole whole. All such annual information and (b) trade secrets reports shall be furnished within 90 days after the end of the fiscal year to which they relate, and other confidential all such quarterly information shall be furnished within 45 days after the end of the fiscal quarter to which they relate. At any time that is competitively sensitive any of the Issuer’s Subsidiaries are Unrestricted Subsidiaries and if any such Unrestricted Subsidiary or group of Unrestricted Subsidiaries, if taken together as one Subsidiary, would hold in the good faith aggregate more than 5.0% of the Total Assets of the Issuer, then the quarterly and reasonable determination annual financial information required by the preceding paragraph will include a reasonably detailed presentation, either (i) on the face of the financial statements or in the footnotes thereto, (ii) in “Management’s Discussion and Analysis of Financial Condition and Results of Operations” or (iii) in any other comparable section, of the financial condition and results of operations of the Issuer and its Restricted Subsidiaries separate from the financial condition and results of operations of the Unrestricted Subsidiaries of the Issuer. The Issuer will make available such information and such reports (as well as the details regarding the conference call described below) to the Trustee under this Indenture, to any Holder of the Notes and, upon request, to any beneficial owner of the Notes, in each case by posting such information and reports on its website, on Intralinks or any comparable password-protected online data system which will require a confidentiality acknowledgment, and will make such information and reports readily available to any Holder of the Notes, any bona fide prospective investor in the Notes, any securities analyst (to the extent providing analysis of investment in the Notes) or any market maker in the Notes who agrees to treat such information as confidential or accesses such information and reports on Intralinks or any comparable password-protected online data system which will require a confidentiality acknowledgment; provided that the Issuer shall post such information and reports thereon and make readily available any password or other login information to any such Holder of the Notes, bona fide prospective investor, securities analyst or market maker; provided, further, that the Issuer may deny access to any competitively-sensitive information or reports otherwise to be excluded from disclosuresprovided pursuant to this paragraph to any such Holder, bona fide prospective investor, security analyst or market maker that is a competitor of the Issuer and its Subsidiaries to the extent that the Issuer determines in good faith that the provision of such information or reports to such Person would be competitively harmful to the Issuer and its Subsidiaries; and provided, further, that such Holders, bona fide prospective investors, security analysts or market makers shall agree to (i) treat all such reports (and the information contained therein) and information as confidential, (ii) not use such reports and the information contained therein for any purpose other than their investment or potential investment in the Notes and (iii) not publicly disclose any such reports (and the information contained therein).
(b) The reports required pursuant to clauses (1), (2) and (3) of Section 4.03(a) will not be required to comply with (i) Section 302, Section 404 or Section 906 of the Xxxxxxxx-Xxxxx Act of 2002, (ii) related Items 307 and 308 of Regulation S-K promulgated by the SEC, (iii) Item 10(e) of Regulation S-K (with respect to any non-GAAP financial measures contained therein) or any comparable successor provision and (iv) Regulation S-X Rule 3-10.
(c) So long as any Notes are outstandingOutstanding, the Issuer will shall also:
(1) after:
(A) furnishing to the Holders the annual and quarterly information and reports required by Section 10.09(a)(1), or
(B) furnishing to the Holders, at the option and in the sole discretion of the Issuer (who shall not be obligated to so furnish), summary condensed consolidated annual or quarterly income statement and balance sheet, as applicable, without notes thereto, and a summary discussion of the results of operations for the relevant reporting period, promptly hold a conference call to discuss such information and reports or summary information and the results of operations for the relevant reporting period (which conference call, for the avoidance of doubt, may be held prior to such time that the annual or quarterly information and reports required by Section 10.09(a)(1) are furnished to Holders); and
(2) issue a press release to an internationally the appropriate nationally recognized wire service no fewer than three Business Days services prior to the delivery or posting date of the annual and quarterly reports conference call required by clauses (1) and (2) of to be held in accordance with Section 4.03(a10.09(b)(1) announcing the time and date on which of such reports will be made available conference call and either including all information necessary to access the Holders and directing call or informing Holders, research bona fide prospective investors, market makers and securities analysts and prospective purchasers to contact the investor relations office of the Issuer to how they can obtain copies of such reports;
(2) maintain a website (which may be password protected so long as the password is made promptly available by the Issuer to Holders, research analysts and prospective purchasers) to which all of the reports and press releases required by this Section 4.03 are posted; and
(3) host and participate in customary quarterly conference calls (which may be a single conference call together with investors holding other securities of the Issuer and/or its Restricted Subsidiaries and/or any direct or indirect parent of the Issuer) to discuss operating results and related matters. The Issuer shall issue a press release which will provide the date and time of any such call and will direct Holders, prospective purchasers and research analysts to contact the investor relations office of the Issuer to obtain access to the conference call; provided, that the Issuer shall not be required to undertake the actions set forth in clauses (1), (2) and (3) of this Section 4.03(c) at any time that the Issuer or any direct or indirect parent thereof is otherwise undertaking similar actions on behalf of, and making similar information available to, investors holding other securities of the Issuer or any direct or indirect parent thereof; provided, further, that such information described in the immediately preceding proviso is made available to the Holdersinformation.
(dc) In addition, to the extent not satisfied by the foregoing, the Issuer will, for so long as any Notes are outstanding, shall furnish to Holders and to prospective purchasersinvestors, upon their request, the any information required to be delivered pursuant to Rule 144A(d)(4) under the Securities Act so long as the Notes are not freely transferable under the Securities Act.
(ed) The Issuer Any Parent Entity may satisfy its the Issuer’s obligations in under this Section 4.03 with respect to 10.09 by providing the requisite financial and other information relating of such Parent Entity instead of the Issuer; provided that to the Issuer by furnishing financial information relating to a extent such Parent Entity holds assets (other than its direct or indirect parent company; provided thatinterest in the Issuer) that exceeds the lesser of (i) 1% of the Total Assets of such Parent Entity and (ii) 1% of the total revenue for the preceding fiscal year of such Parent Entity, if and for so long as then such parent company information related to such Parent Entity shall have Independent Assets or Operations (as defined below), the same is be accompanied by consolidating information information, which may be unaudited, that explains in reasonable detail the differences between the information relating to of such parent companyParent Entity, on the one hand, and the information relating to the Issuer and its Restricted Subsidiaries on a stand-alone basis, on the other hand. “Independent Assets .
(e) The Issuer shall be deemed to have furnished the financial statements and other information referred to in Section 10.09(a) if the Issuer or Operations” means, with respect to any Parent Entity has filed reports containing such information (or any such parent company, that such parent company’s total assets, revenues, income from continuing operations before income taxes and cash flows from operating activities (excluding in each case amounts related to its investment in the Issuer and the Restricted Subsidiaries), determined information of a Parent Entity in accordance with GAAP Section 10.09(d)) with the SEC. To the extent any information is not provided within the time periods specified in this Section 10.09 and as shown on such information is subsequently provided, the most recent balance sheet of Issuer shall be deemed to have satisfied its obligations with respect thereto at such parent company, is more than 3.0% of such parent company’s corresponding consolidated amounttime and any Default with respect thereto shall be deemed to have been cured.
Appears in 1 contract
Samples: Indenture (Ww International, Inc.)
Reports and Other Information. (a) Notwithstanding that the Issuer may not be subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act or otherwise report on an annual and quarterly basis on forms provided for such annual and quarterly reporting pursuant to rules and regulations promulgated by the SEC, the Issuer The Issuers shall furnish make available to the Trustee and Holders of the Notes (without exhibits) or post on its website (which may be password protected so long as the password is made promptly available by the Issuer to the Holders, research analysts and prospective purchasers upon request) no later than 15 days after the dates specified below:):
(1i) within 90 days after the end of each fiscal year (beginning commencing with the fiscal year ending after the Issue DateJanuary 27, 2018), annual reports containing substantially all of the information required to be contained in an Annual Report on Form 10-K of J. Crew Group if the Issuer J. Crew Group had been a reporting company under the Exchange Act (but only to the extent similar information is included in the Offering Memorandum)Act; provided, that the Issuer foregoing shall not be required to provide require the provision of the information otherwise required to be presented by reporting companies under the Exchange Act pursuant to Part III of Form 10-K except for such information as would be required by Item 401 of Regulation S-K (other than the information required by subsections (c) and (g) of such item), Item 403(a) of Regulation S-K and Item 404 of Regulation S-K (assuming a transaction threshold of $2,500,000 2,000,000 rather than $120,000 and other than information with respect to employment and compensation arrangements and the information required by Item 404(b));
(2ii) within 45 days after the end of each of the first three fiscal quarters of each fiscal yearyear (commencing with the fiscal quarter ending July 29, 2017), reports containing substantially all of the information required to be contained in a Quarterly Report on Form 10-Q of J. Crew Group if the Issuer J. Crew Group had been a reporting company under the Exchange Act (but only to the extent similar information is included in the Offering Memorandum); andAct;
(3iii) within the later of 15 days after the occurrence of the specified event or within five (5) Business Days of the date on which an event would have been required to be reported on a Form 8-K (as in effect on the Issue Date), information with respect to J. Crew Group pursuant to Items 1.01 (Entry into a Material Definitive Agreement), 1.02 (Termination of a Material Definitive Agreement), 1.03 (Bankruptcy or Receivership), 2.01 (Completion of Acquisition or Disposition of Assets), 2.04 (Triggering Events that Accelerate or Increase a Direct Financial Obligation or an Obligation under an Off-Balance Sheet Arrangement), 2.06 (Material Impairment), 4.01 (Changes in Registrant’s Certifying Accountants), 4.02 (Non-Reliance on Previously Issued Financial Statements or a Related Audit Report or Completed Interim Review), 5.01 (Changes in Control of Registrant) 5.02(a),(b), 5.02(a), (b) or (c) (Departure of Directors or Principal Officers; Election of Directors; Appointment of Principal Officers; Compensation Arrangements of Certain Officers) (other than any information relating to compensation arrangements with any directors or officers) and 9.01(a) (Financial Statements and Exhibits) (, but only with respect to historical financial statements relating to transactions required to be reported pursuant to Item 2.01 and involving acquisitions of Persons that had revenues in excess of $500,000,000 for the last four completed fiscal quarters prior to the consummation of the acquisitionPersons) of a Current Report on Form 8-K (as in effect of the Issue Date); provided, however, that (a) no such report or information will be required to be so furnished delivered if either the LLC Issuer or the Parent Guarantor, as applicable, determines in good faith that such event is not material to the Holders or the business, assets, operations or financial condition of the Issuer Issuers and its Restricted Subsidiariesthe Guarantors, taken as a whole and and
(b) trade secrets and other confidential information that is competitively sensitive in the good faith and reasonable determination of the Issuer Issuers may be excluded from disclosures.
(b) The reports required pursuant to clauses (1), (2) and (3) of Section 4.03(a) will not be required to comply with (i) Section 302, Section 404 or Section 906 of the Xxxxxxxx-Xxxxx Act of 2002, (ii) related Items 307 and 308 of Regulation S-K promulgated by the SEC, (iii) Item 10(e) of Regulation S-K (with respect to any non-GAAP financial measures contained therein) or any comparable successor provision and (iv) Regulation S-X Rule 3-10.
(c) So long as any Notes are outstanding, the Issuer will also:
(1) issue a press release to an internationally recognized wire service no fewer than three Business Days prior to the delivery or posting of the annual and quarterly reports required by clauses (1) and (2) of Section 4.03(a) announcing the date on which such reports will be made available to the Holders and directing Holders, research analysts and prospective purchasers to contact the investor relations office of the Issuer to obtain copies of such reports;
(2) maintain a website (which may be password protected so long as the password is made promptly available by the Issuer to Holders, research analysts and prospective purchasers) to which all of the reports and press releases required by this Section 4.03 are posted; and
(3) host and participate in customary quarterly conference calls (which may be a single conference call together with investors holding other securities of the Issuer and/or its Restricted Subsidiaries and/or any direct or indirect parent of the Issuer) to discuss operating results and related matters. The Issuer shall issue a press release which will provide the date and time of any such call and will direct Holders, prospective purchasers and research analysts to contact the investor relations office of the Issuer to obtain access to the conference call; provided, that the Issuer shall not be required to undertake the actions set forth in clauses (1), (2) and (3) of this Section 4.03(c) at any time that the Issuer or any direct or indirect parent thereof is otherwise undertaking similar actions on behalf of, and making similar information available to, investors holding other securities of the Issuer or any direct or indirect parent thereof; provided, further, that such information described in the immediately preceding proviso is made available to the Holders.
(d) In addition, to the extent not satisfied by the foregoing, the Issuer will, for so long as any Notes are outstanding, furnish to Holders and to prospective purchasers, upon their request, the information required to be delivered pursuant to Rule 144A(d)(4) under the Securities Act.
(e) The Issuer may satisfy its obligations in this Section 4.03 with respect to financial information relating to the Issuer by furnishing financial information relating to a direct or indirect parent company; provided that, if and for so long as such parent company shall have Independent Assets or Operations (as defined below), the same is accompanied by consolidating information that explains in reasonable detail the differences between the information relating to such parent company, on the one hand, and the information relating to the Issuer and its Restricted Subsidiaries on a stand-alone basis, on the other hand. “Independent Assets or Operations” means, with respect to any such parent company, that such parent company’s total assets, revenues, income from continuing operations before income taxes and cash flows from operating activities (excluding in each case amounts related to its investment in the Issuer and the Restricted Subsidiaries), determined in accordance with GAAP and as shown on the most recent balance sheet of such parent company, is more than 3.0% of such parent company’s corresponding consolidated amount.
Appears in 1 contract
Reports and Other Information. (a) Notwithstanding that Whether or not required by the Issuer may not be subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act or otherwise report on an annual and quarterly basis on forms provided for such annual and quarterly reporting pursuant to rules and regulations promulgated by of the SEC, the Issuer shall furnish to the Trustee and Holders of the Notes (without exhibits) or post on its website (which may be password protected so long as the password is made promptly available by the Issuer to the Holders, research analysts and prospective purchasers upon request) no later than 15 days after the dates specified below:
(1) within 90 days after the end of each fiscal year (beginning with the fiscal year ending after the Issue Date), annual reports containing substantially all of the information required to be contained in an Annual Report on Form 10-K if the Issuer had been a reporting company under the Exchange Act (but only to the extent similar information is included in the Offering Memorandum); provided, that the Issuer shall not be required to provide the information otherwise required to be presented by reporting companies under the Exchange Act pursuant to Part III of Form 10-K except for such information as would be required by Item 401 of Regulation S-K (other than the information required by subsections (c) and (g) of such item), Item 403(a) of Regulation S-K and Item 404 of Regulation S-K (assuming a transaction threshold of $2,500,000 rather than $120,000 and other than information with respect to employment and compensation arrangements and the information required by Item 404(b));
(2) within 45 days after the end of each of the first three fiscal quarters of each fiscal year, reports containing substantially all of the information required to be contained in a Quarterly Report on Form 10-Q if the Issuer had been a reporting company under the Exchange Act (but only to the extent similar information is included in the Offering Memorandum); and
(3) within the later of 15 days after the occurrence of the specified event or within five (5) Business Days of the date on which an event would have been required to be reported on a Form 8-K (as in effect on the Issue Date), information pursuant to Items 1.01 (Entry into a Material Definitive Agreement), 1.02 (Termination of a Material Definitive Agreement), 1.03 (Bankruptcy or Receivership), 2.01 (Completion of Acquisition or Disposition of Assets), 2.04 (Triggering Events that Accelerate or Increase a Direct Financial Obligation or an Obligation under an Off-Balance Sheet Arrangement), 2.06 (Material Impairment), 4.01 (Changes in Registrant’s Certifying Accountants), 4.02 (Non-Reliance on Previously Issued Financial Statements or a Related Audit Report or Completed Interim Review), 5.01 (Changes in Control of Registrant), 5.02(a), (b) or (c) (Departure of Directors or Principal Officers; Election of Directors; Appointment of Principal Officers; Compensation Arrangements of Certain Officers) (other than any information relating to compensation arrangements with any directors or officers) and 9.01(a) (Financial Statements and Exhibits) (but only with respect to historical financial statements relating to transactions required to be reported pursuant to Item 2.01 and involving acquisitions of Persons that had revenues in excess of $500,000,000 for the last four completed fiscal quarters prior to the consummation of the acquisition) of a Current Report on Form 8-K (as in effect of the Issue Date); provided, that (a) no such report or information will be required to be so furnished if the Issuer determines in good faith that such event is not material to the Holders or the business, assets, operations or financial condition of the Issuer and its Restricted Subsidiaries, taken as a whole and (b) trade secrets and other confidential information that is competitively sensitive in the good faith and reasonable determination of the Issuer may be excluded from disclosures.
(b) The reports required pursuant to clauses (1), (2) and (3) of Section 4.03(a) will not be required to comply with (i) Section 302, Section 404 or Section 906 of the Xxxxxxxx-Xxxxx Act of 2002, (ii) related Items 307 and 308 of Regulation S-K promulgated by the SEC, (iii) Item 10(e) of Regulation S-K (with respect to any non-GAAP financial measures contained therein) or any comparable successor provision and (iv) Regulation S-X Rule 3-10.
(c) So long as any Notes are outstanding, the Issuer will also:furnish to the holders (with a copy to the Trustee), or file electronically with the SEC through the SEC’s Electronic Data Gathering, Analysis and Retrieval System (or any successor system) (“XXXXX”), within the time periods specified in the SEC’s rules and regulations that are then applicable to the Issuer (or if the Issuer is not then subject to the reporting requirements of the Exchange Act, then the time periods for filing applicable to a filer that is not an “accelerated filer” as defined in such rules and regulations) (in either case, including any extension as would be permitted by Rule 12b-25 under the Exchange Act):
(1i) issue all quarterly and annual information that would be required to be contained in reports on Forms 10-Q and 10-K (or any successor or comparable form) required to be filed with the SEC if the Issuer were required to file such reports, including a press release to an internationally recognized wire service no fewer than three Business Days prior “Management’s discussion and analysis of financial condition and results of operations” and, with respect to the delivery or posting of annual information only, a report on the annual and quarterly reports required by clauses (1) and (2) of Section 4.03(a) announcing the date on which such reports will be made available to the Holders and directing Holders, research analysts and prospective purchasers to contact the investor relations office of the Issuer to obtain copies of such reports;
(2) maintain a website (which may be password protected so long as the password is made promptly available financial statements by the Issuer to Holders, research analysts and prospective purchasers) to which all of the reports and press releases required by this Section 4.03 are postedIssuer’s independent registered public accounting firm; and
(ii) all current reports that would be required to be filed with the SEC on Form 8-K (or any successor or comparable form) if the Issuer were required to file such reports pursuant to (a) Item 1.01, (b) Item 1.02, (c) Item 1.03, (d) Item 2.01, (e) Item 2.03; (f) Item 2.04, (g) Item 4.01, (h) Item 4.02, (i) Item 5.01, (j) Item 5.02(b) and (k) Item 5.02(c). The financial information required by Section 4.02(a)(i) will not be required to include (a) separate financial statements of Guarantors, (b) a footnote presenting the condensed consolidating financial information specified in Rule 3-10 of Regulation S-X promulgated by the SEC (or any successor provisions) host or (c) summarized financial information regarding the Issuer and participate the Guarantors, on a combined basis, but will provide textual disclosure consistent with the disclosure in customary quarterly conference calls (which may the Offering Memorandum of the non-Guarantors whose results are required to be a single conference call together consolidated for the purposes of presentation in accordance with investors holding other securities GAAP of consolidated financial statements of the Issuer and/or and its Restricted Subsidiaries and/or subsidiaries, for any direct or indirect parent of the Issuer) periods presented in such financial information. If the Issuer does not file reports containing such information with the SEC, then the Issuer will deliver such information and reports to discuss operating results the Trustee and related matters. The Issuer shall issue a press release make available such information and such reports to any noteholders, bona fide prospective investors, market makers affiliated with any Initial Purchaser, and any bona fide securities analyst by posting such information on Intralinks or any comparable password-protected online data system which will provide the date and time of any such call require a confidentiality acknowledgment, and will direct Holdersmake such information readily available to any noteholders, bona fide prospective purchasers investors, market makers affiliated with any Initial Purchaser, and research analysts any bona fide securities analyst who (i) agrees to contact the investor relations office of the Issuer to obtain access to the conference calltreat such information as confidential or (ii) accesses such information on Intralinks or any comparable password-protected online data system which will require a confidentiality acknowledgment; provided, provided that the Issuer shall not post such information thereon and make readily available any password or other login information to any such noteholders, bona fide prospective investors, market makers affiliated with any Initial Purchaser and any bona fide securities analyst. The Issuer will hold a quarterly conference call for all noteholders, bona fide prospective investors, market makers affiliated with any Initial Purchaser and any bona fide securities analyst to discuss financial information within ten (10) Business Days after distribution of such financial information; provided that any customary quarterly earnings call with public equity holders shall be required deemed to undertake the actions set forth in clauses (1), (2) and (3) constitute such quarterly conference call for purposes of this Section 4.03(c) at any time that the Issuer or any direct or indirect parent thereof is otherwise undertaking similar actions on behalf of, and making similar information available to, investors holding other securities of the Issuer or any direct or indirect parent thereof; provided, further, that such information described in the immediately preceding proviso is made available to the HoldersIndenture.
(db) In addition, to the extent not satisfied by the foregoing, the Issuer willshall, for so long as any Notes are outstandingremain outstanding during any period when it is not subject to Section 13 or 15(d) of the Exchange Act, or otherwise permitted to furnish the SEC with the information required by this Section 4.02, furnish to Holders noteholders, bona fide prospective investors, market makers affiliated with any Initial Purchaser, and to prospective purchasersany bona fide securities analyst, upon their request, the information required to be delivered pursuant to Rule 144A(d)(4) under the Securities Act.
(e) . The Issuer may satisfy its obligation to furnish such information by making such information available electronically (including by posting to a non-public, password-protected website maintained by the Issuer or a third party) to any holder, bona fide prospective investor, market maker affiliated with any Initial Purchaser or bona fide securities analyst, in each case, who provides to the Issuer its email address, employer name and other information reasonably requested by the Issuer. For purposes of this Section 4.02, any prospective investor or securities analyst shall be deemed “bona fide” if it certifies it is “bona fide.”
(c) In the event that:
(i) the rules and regulations of the SEC permit the Issuer and any direct or indirect parent of the Issuer to report at such parent entity’s level on a consolidated basis and such parent entity is not engaged in any business in any material respect other than incidental to its ownership, directly or indirectly, of the capital stock of the Issuer; or
(ii) any direct or indirect parent of the Issuer is or becomes a Guarantor of the Notes; consolidating reporting at the parent entity’s level in a manner consistent with that described in this Section 4.02 for the Issuer will satisfy this Section 4.02, and the Issuer is permitted to satisfy its obligations in this Section 4.03 4.02 with respect to financial information relating to the Issuer by furnishing financial information relating to a such direct or indirect parent company; provided thatparent.
(d) Notwithstanding the foregoing, the Issuer will be deemed to have furnished the reports referred to in this Section 4.02 to the Trustee and the holders if the Issuer has filed such reports with the SEC via XXXXX and for so long as such parent company reports are publicly available, it being understood that the Trustee shall have Independent Assets no responsibility to determine if such information is publicly available. The Trustee shall not be obligated to monitor or Operations (as defined below)confirm, on a continuing basis or otherwise, the same is accompanied by consolidating information that explains in reasonable detail Issuer’s compliance with the differences between the information relating to such parent company, on the one hand, and the information relating to the Issuer and its Restricted Subsidiaries on a stand-alone basis, on the other hand. “Independent Assets covenants or Operations” means, with respect to any reports or other documents filed with the SEC or XXXXX or any website, or participate in any conference calls.
(e) Delivery of such parent companyreports, that such parent company’s total assetsinformation and documents to the Trustee pursuant to this Section 4.02 is for informational purposes only, revenues, income from continuing operations before income taxes and cash flows from operating activities (excluding in each case amounts related to its investment in the Issuer and the Restricted SubsidiariesTrustee’s receipt thereof shall not constitute constructive notice of any information contained therein or determinable from information contained therein, including the Issuer’s compliance with any of its covenants under this Indenture (as to which the Trustee is entitled to rely exclusively on Officer’s Certificates), determined in accordance with GAAP and as shown on the most recent balance sheet of such parent company, is more than 3.0% of such parent company’s corresponding consolidated amount.
Appears in 1 contract
Samples: Indenture (Trimas Corp)
Reports and Other Information. (a) Notwithstanding that Whether or not the Issuer may not be is subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act or otherwise report on an annual and quarterly basis on forms provided for such annual and quarterly reporting pursuant to rules and regulations promulgated by the SECAct, so long as any Securities are outstanding, the Issuer shall furnish to the Trustee Holders and Holders of the Notes Trustee: (without exhibitsi)(x) or post on its website (which may all annual and quarterly financial statements that would be password protected so long as the password is made promptly available by the Issuer to the Holders, research analysts and prospective purchasers upon request) no later than 15 days after the dates specified below:
(1) within 90 days after the end of each fiscal year (beginning with the fiscal year ending after the Issue Date), annual reports containing substantially all of the information required to be contained in an Annual Report a filing with the SEC on Form Forms 10-K and 10-Q of the Issuer, if the Issuer were required to file such forms, plus a “Management’s Discussion and Analysis of Financial Condition and Results of Operations”; (y) with respect to the annual and quarterly information, a presentation of Adjusted EBITDA of the Issuer (the foregoing financial information to be prepared on a basis substantially consistent with the presentation of non-GAAP financial measures included in the Offering Memorandum); and (z) with respect to the annual financial statements only, a report on the annual financial statements by the Issuer’s independent registered public accounting firm; it being understood that the Issuer shall not be required to include, except as otherwise provided in this Section 4.02(a), any other adjustment that would be required by any SEC rule, regulation or interpretation, including but not limited to any “push down” accounting adjustment; and (ii) all information that would be required to be contained in filings with the SEC on Form 8-K under Items 1.01, 1.02, 1.03, 2.01, 2.03, 2.04, 2.05, 2.06, 4.01, 4.02, 5.01 and 5.02(b) and (c)(1) (other than with respect to information otherwise required or contemplated by Item 402 of Regulation S-K) (but excluding, for the avoidance of doubt, financial statements and exhibits that would be required pursuant to Item 9.01 of Form 8-K other than financial statements and pro forma financial information required pursuant to clauses (a) and (b) of Item 9.01 of Form 8-K (in each case relating to transactions required to be reported pursuant to Item 2.01 of Form 8-K) to the extent available (as determined by the Issuer in good faith, which determination shall be conclusive)) if the Issuer had been a reporting company under the Exchange Act (but only to the extent similar information is included in the Offering Memorandum)Act; provided, that the Issuer shall not be required to provide the information otherwise required to be presented by reporting companies under the Exchange Act pursuant to Part III of Form 10-K except for such information as would be required by Item 401 of Regulation S-K (other than the information required by subsections (c) and (g) of such item), Item 403(a) of Regulation S-K and Item 404 of Regulation S-K (assuming a transaction threshold of $2,500,000 rather than $120,000 and other than information with respect to employment and compensation arrangements and the information required by Item 404(b));
(2) within 45 days after the end of each of the first three fiscal quarters of each fiscal year, reports containing substantially all of the information required to be contained in a Quarterly Report on Form 10-Q if the Issuer had been a reporting company under the Exchange Act (but only to the extent similar information is included in the Offering Memorandum); and
(3) within the later of 15 days after the occurrence of the specified event or within five (5) Business Days of the date on which an event would have been required to be reported on a Form 8-K (as in effect on the Issue Date), information pursuant to Items 1.01 (Entry into a Material Definitive Agreement), 1.02 (Termination of a Material Definitive Agreement), 1.03 (Bankruptcy or Receivership), 2.01 (Completion of Acquisition or Disposition of Assets), 2.04 (Triggering Events that Accelerate or Increase a Direct Financial Obligation or an Obligation under an Off-Balance Sheet Arrangement), 2.06 (Material Impairment), 4.01 (Changes in Registrant’s Certifying Accountants), 4.02 (Non-Reliance on Previously Issued Financial Statements or a Related Audit Report or Completed Interim Review), 5.01 (Changes in Control of Registrant), 5.02(a), (b) or (c) (Departure of Directors or Principal Officers; Election of Directors; Appointment of Principal Officers; Compensation Arrangements of Certain Officers) (other than any information relating to compensation arrangements with any directors or officers) and 9.01(a) (Financial Statements and Exhibits) (but only with respect to historical financial statements relating to transactions required to be reported pursuant to Item 2.01 and involving acquisitions of Persons that had revenues in excess of $500,000,000 for the last four completed fiscal quarters prior to the consummation of the acquisition) of a Current Report on Form 8-K (as in effect of the Issue Date); providedhowever, that (a) no such current report or information will be required to be so furnished if the Issuer determines in its good faith judgment that such event is not material to the Holders or the business, assets, operations operations, financial position or financial condition prospects of the Issuer and its Restricted Subsidiaries, taken as a whole whole, and (b) trade secrets and other confidential information that is competitively sensitive the Issuer may omit from such disclosure any terms of such event if the Issuer determines in the its good faith and reasonable determination judgment that disclosure of such terms would otherwise cause material competitive harm to the business, assets, operations, financial position or prospects of the Issuer may and its Restricted Subsidiaries, taken as a whole; provided, that such non-disclosure shall be excluded from disclosureslimited only to those specific provisions that would cause material competitive harm and not the occurrence of the event itself; provided, further, that no such current report will be required to include a summary of the terms of any employment or compensatory arrangement agreement, plan or understanding between the Issuer (or any of its Subsidiaries) and any director, manager or executive officer of the Issuer (or any of its Subsidiaries).
(b) The All such annual reports required pursuant shall be furnished within 90 days after the end of the fiscal year to clauses which they relate, and all such quarterly reports shall be furnished within 45 days after the end of the fiscal quarter to which they relate; provided that the annual report for the first fiscal year ending after the Issue Date shall be furnished within 120 days after the end of the fiscal year to which it relates and the quarterly report for the first two quarters ending after the Issue Date shall be furnished within 60 days after the end of the fiscal quarter to which it relates. All such current reports shall be furnished within the time periods specified in the SEC’s rules and regulations for reporting companies under the Exchange Act.
(1)c) Notwithstanding the foregoing, (2a) and (3) of Section 4.03(a) the Issuer will not be required to comply with furnish any information, certificates or reports required by (i) Section 302, Section 404 or Section 906 of the Xxxxxxxx-Xxxxx Act of 2002, or related Items 307 or 308 of Regulation S-K, (ii) related Items 307 and 308 Regulation G or Item 10(e) of Regulation S-K promulgated by the SEC, SEC with respect to any non-generally accepted accounting principles financial measures contained therein or (iii) Rule 3-05, 3-09 and 3-10 of Regulation S- X, (b) such reports shall not be required to present compensation or beneficial ownership information and (c) such reports shall not be required to include any exhibits that would have been required to be filed pursuant to Item 10(e) 601 of Regulation S-K (with respect to any non-GAAP financial measures contained therein) or any comparable successor provision and (iv) Regulation S-X Rule 3-10.
except this clause (c) So long as any Notes are outstanding, the Issuer will also:
(1) issue a press release to an internationally recognized wire service no fewer than three Business Days prior to the delivery or posting of the annual and quarterly reports required by clauses (1) and (2) of Section 4.03(a) announcing the date on which such reports will be made available to the Holders and directing Holders, research analysts and prospective purchasers to contact the investor relations office of the Issuer to obtain copies of such reports;
(2) maintain a website (which may be password protected so long as the password is made promptly available by the Issuer to Holders, research analysts and prospective purchasers) to which all of the reports and press releases required by this Section 4.03 are posted; and
(3) host and participate in customary quarterly conference calls (which may be a single conference call together with investors holding other securities of the Issuer and/or its Restricted Subsidiaries and/or any direct or indirect parent of the Issuer) to discuss operating results and related matters. The Issuer shall issue a press release which will provide the date and time of any such call and will direct Holders, prospective purchasers and research analysts to contact the investor relations office of the Issuer to obtain access to the conference call; provided, that the Issuer shall not be apply to any annual, quarterly or pro forma financial statements otherwise expressly required to undertake the actions set forth in clauses (1be provided under Section 4.02), (2) and (3) of this Section 4.03(c) at any time that the Issuer or any direct or indirect parent thereof is otherwise undertaking similar actions on behalf of, and making similar information available to, investors holding other securities of the Issuer or any direct or indirect parent thereof; provided, further, that such information described in the immediately preceding proviso is made available to the Holders.
(d) In additionThe Issuer shall (x) deliver such information and such reports (as well as the details regarding the conference call described below) to the Trustee under this Indenture to any Holder of the Securities and, upon request, to any beneficial owner of the Securities, in each case by posting such information on Intralinks or any comparable password-protected online data system which will require a confidentiality acknowledgment, and will make such information readily available to any prospective investor in the Securities that certifies to the reasonable satisfaction of the Issuer that it is an eligible purchaser of the Securities, any securities analyst (to the extent providing analysis of investment in the Securities) or any market maker in the Securities, in each case (i) who agrees to treat such information as confidential or (ii) accesses such information on Intralinks or any comparable password protected online data system which will require a confidentiality acknowledgment; provided that the Issuer shall post such information thereon and make readily available any password or other login information to any such prospective investor in the Securities, any such securities analyst (to the extent providing analysis of investment in the Securities) or any such market maker in the Securities or (y) otherwise provide substantially comparable availability of such reports (as determined by the Issuer in good faith) (it being understood that, without limitation, making such reports available on Bloomberg or another private electronic information service shall constitute substantially comparable availability). The Issuer will hold a quarterly conference call for all Holders and securities analysts (to the extent providing analysis of investment in the Securities) to discuss such financial information promptly after distribution of such financial information.
(e) To the extent not satisfied by the foregoing, the Issuer will, for so long as any Notes are outstanding, will also furnish to Holders Holders, securities analysts (to the extent providing analysis of investment in the Securities) and to prospective purchasers, investors in the Securities upon their request, request the information required to be delivered pursuant to Rule 144A(d)(4) under the Securities Act, so long as the Securities are not freely transferable under the Securities Act.
(ef) The Issuer may satisfy its obligations in this Section 4.03 with respect to financial information relating to If the Issuer has designated any of its Subsidiaries as an Unrestricted Subsidiary and if any such Unrestricted Subsidiary or group of Unrestricted Subsidiaries, if taken together as one Subsidiary, would constitute a Significant Subsidiary of the Issuer, then the annual and quarterly information required by furnishing clause (i) of Section 4.02(a) shall include a reasonably detailed presentation, either on the face of the financial statements or in the footnotes thereto, of the financial condition and results of operations of the Issuer and its Restricted Subsidiaries separate from the financial condition and results of operations of such Unrestricted Subsidiaries.
(g) Notwithstanding the foregoing, the financial statements, information relating and other documents required to a be provided as described above, may be those of (i) Holdings or Intermediate Holdings or (ii) any other direct or indirect parent companyof the Issuer; provided that, if and for the financial information so long as furnished relates to such direct or indirect parent company shall have Independent Assets or Operations (as defined below)of the Issuer, the same is accompanied by consolidating information that explains summarizes in reasonable detail the differences between the information relating to such parent companyparent, on the one hand, and the information relating to the Issuer and its Restricted Subsidiaries on a stand-alone standalone basis, on the other hand. “Independent Assets .
(h) The Issuer will be deemed to have furnished the reports referred to in Section 4.02(a) if the Issuer, Holdings or Operations” meansany direct or indirect parent has filed reports containing such information with the SEC.
(i) Delivery of such reports, information and documents to the Trustee is for informational purposes only and the Trustee’s receipt of such shall not constitute actual or constructive knowledge or notice of any information contained therein or determinable from information contained therein, including the Issuer’s compliance with any of its covenants hereunder (as to which the Trustee is entitled to rely exclusively on Officer’s Certificates with respect thereto). The Trustee will have no responsibility whatsoever to any monitor whether such parent company, that such parent company’s total assets, revenues, income from continuing operations before income taxes and cash flows from operating activities (excluding in each case amounts related to its investment in filing or posting has occurred or the Issuer and the Restricted Subsidiaries), determined in accordance with GAAP and as shown on the most recent balance sheet timeliness of such parent company, is more than 3.0% of such parent company’s corresponding consolidated amountfiling or posting.
Appears in 1 contract
Samples: Indenture (Hillman Companies Inc)
Reports and Other Information. (a) Notwithstanding that So long as any Notes are outstanding, the Issuer may not be subject will furnish to the reporting requirements of Section 13 or 15(dHolders:
(i) of the Exchange Act or otherwise report on an (A) all annual and quarterly basis on forms provided for such annual and quarterly reporting pursuant to rules and regulations promulgated by the SEC, financial statements of the Issuer shall furnish to substantially in the Trustee and Holders of the Notes (without exhibits) or post on its website (which may forms that would be password protected so long as the password is made promptly available by the Issuer to the Holders, research analysts and prospective purchasers upon request) no later than 15 days after the dates specified below:
(1) within 90 days after the end of each fiscal year (beginning with the fiscal year ending after the Issue Date), annual reports containing substantially all of the information required to be contained in an Annual Report a filing with the SEC on Form Forms 10-K if the Issuer had been a reporting company under the Exchange Act (but only to the extent similar information is included in the Offering Memorandum); provided, that the Issuer shall not be required to provide the information otherwise required to be presented by reporting companies under the Exchange Act pursuant to Part III of Form and 10-K except for such information as would be required by Item 401 of Regulation S-K Q (other than the information required by subsections (c) and (g) of such item), Item 403(a) of Regulation S-K and Item 404 of Regulation S-K (assuming a transaction threshold of $2,500,000 rather than $120,000 and other than information solely with respect to employment and compensation arrangements and the information required by Item 404(b));
(2) within 45 days after the end of each of the first three fiscal quarters of each fiscal year), reports if the Issuer were required to file such forms on the Issue Date, and a “Management’s Discussion and Analysis of Financial Condition and Results of Operations” and (B) with respect to the annual financial statements only, a report on the annual financial statements by the Issuer’s independent registered public accounting firm; and
(ii) promptly from time to time after the occurrence of an event required to be therein reported, such other information containing substantially all of the same information that would be required to be contained in a Quarterly Report filings with the SEC on Form 10-Q if the Issuer had been a reporting company under the Exchange Act (but only to the extent similar information is included in the Offering Memorandum); and
(3) within the later of 15 days after the occurrence of the specified event or within five (5) Business Days of the date on which an event would have been required to be reported on a Form 8-K (as in effect on the Issue Date), information pursuant to Items 1.01 (Entry into a Material Definitive Agreement), 1.02 (Termination of a Material Definitive Agreement), under Items: 1.03 (Bankruptcy or Receivership), ; 2.01 (Completion of Acquisition or Disposition of Assets), 2.04 ; 2.03 (Triggering Events that Accelerate or Increase Creation of a Direct Financial Obligation or an Obligation under an Off-Balance Sheet ArrangementArrangement of a Registrant), 2.06 (Material Impairment), 4.01 (Changes in Registrant’s Certifying Accountants), ; 4.02 (Non-Reliance on Previously Issued Financial Statements or a Related Audit Report or Completed Interim ReviewIssued
(a) (1) (Resignation of Director due to Disagreement with Registrant), 5.01 ; 5.02(c)(1) (Name and Position of Newly Appointed Officer and Date of Appointment); and 5.03(b) (Changes in Control of RegistrantFiscal Year), 5.02(aeach as in effect on the Issue Date if the Issuer were required to file such reports; provided, however,
(1) no such current report will be required to include as an exhibit or summary of terms of, any employment or compensatory arrangement agreement, plan or understanding between the Issuer (or any of its Subsidiaries or any Parent Company) and any director, manager or executive officer, of the Issuer (or any of its Subsidiaries or any Parent Company);
(2) in no event will such reports be required to comply with Section 302, Section 404 or Section 906 of the Xxxxxxxx-Xxxxx Act of 2002, or related Items 307, 308 and 308T of Regulation S-K;
(b3) in no event will such reports be required to comply with Rule 3-10 of Regulation S-X promulgated by the SEC or contain separate financial statements for the Issuer, the Guarantors or other Subsidiaries the shares of which may be pledged to secure the Notes or any Guarantee that would be required under (A) Section 3-09 of Regulation S-X or (cB) Section 3-16 of Regulation S-X, respectively, promulgated by the SEC;
(Departure 4) in no event will such reports be required to comply with Regulation G under the Exchange Act or Item 10(e) of Directors or Principal Officers; Election of Directors; Appointment of Principal Officers; Compensation Arrangements of Certain Officers) (other than any information relating to compensation arrangements with any directors or officers) and 9.01(a) (Financial Statements and Exhibits) (but only Regulation S-K promulgated by the SEC with respect to historical any non-GAAP financial statements relating to transactions required to be reported pursuant to Item 2.01 and involving acquisitions of Persons that had revenues in excess of $500,000,000 for the last four completed fiscal quarters prior to the consummation of the acquisition) of a Current Report on Form 8-K measures contained therein;
(as in effect of the Issue Date); provided, that (a5) no such report or information reports referenced under clause (ii) above will be required to be so furnished if the Issuer determines in its good faith judgment that such event is not material to the Holders or the business, assets, operations or financial condition position of the Issuer and its Restricted Subsidiaries, taken as a whole and whole;
(b6) in no event will reports referenced in clause (i) or (ii) above be required to include as an exhibit copies of any agreements, financial statements or other items that would be required to be filed as exhibits to an annual report on Form 10-K, a quarterly report on Form 10-Q or a current report on Form 8-K;
(7) in no event will reports delivered prior to the completion of the first full fiscal year following the Issue Date be required to comply with Regulation S-X of the SEC or give pro forma effect to the Refinancing Transactions;
(8) trade secrets and other confidential information that is competitively sensitive in the good faith and reasonable determination of the Issuer may be excluded from any disclosures; and
(9) if at any time the Issuer or any Parent Company of the Issuer or a Qualified Reporting Subsidiary has made a good faith determination to file a registration statement with the SEC with respect to an Equity Offering of such entity’s Equity Interests, the Issuer will still be required to provide reports pursuant to this Section 4.03 but the content of such reports will not be required to disclose any information that, in the good faith view of the Issuer or a Parent Company of the Issuer, would violate the securities laws or the SEC’s “gun jumping” rules or otherwise have an adverse effect on such Equity Offering.
(b) All such annual reports will be furnished within 120 days after the end of the fiscal year to which they relate, and all such quarterly reports will be furnished within 60 days after the end of the fiscal quarter to which they relate. The reports financial statements required to be provided under this Section 4.03 may be prepared pursuant to clauses (1), (2) and (3) of Section 4.03(a) will not be required GAAP as in effect from time to comply with (i) Section 302, Section 404 or Section 906 of the Xxxxxxxx-Xxxxx Act of 2002, (ii) related Items 307 and 308 of Regulation S-K promulgated by the SEC, (iii) Item 10(e) of Regulation S-K (with respect to any non-GAAP financial measures contained therein) or any comparable successor provision and (iv) Regulation S-X Rule 3-10time.
(c) So long as any Notes are outstandingNotwithstanding anything herein to the contrary, the Issuer will also:not be deemed to have failed to comply with any of its obligations under this Section 4.03 for purposes of Section 6.01(c) hereof until 180 days after the date any report is due under this Section 4.03.
(d) The Issuer will make available such information and such reports to the Trustee under this Indenture, to any Holder and, upon request, to any beneficial owner of the Notes, in each case by posting such information on the website of the Issuer or any Parent Company, on Intralinks or any comparable password-protected online data system that will require a confidentiality acknowledgment, and will make such information readily available to any Holder, any bona fide prospective investor in the Notes (which prospective investors will be limited to “qualified institutional buyers” within the meaning of Rule 144A of the Securities Act that certify their status as such to the reasonable satisfaction of the Issuer), any bona fide securities analyst (to the extent providing analysis of investment in the Notes to investors and prospective investors therein) or any bona fide market maker in the Notes who agrees to treat such information as confidential or accesses such information on Intralinks or any comparable password-protected online data system that will require a confidentiality acknowledgment; provided, the Issuer will post such information thereon and make readily available any password or other login information to any such Holder, prospective investor, securities analyst or market maker; provided, further, however, the Issuer may deny access to any competitively-sensitive information otherwise to be provided pursuant to this paragraph to any such Holder, prospective investor, security analyst or market maker that is a competitor of the Issuer and its Subsidiaries, or an affiliate of such a competitor (other than any affiliate that is a bona fide bank debt fund, distressed asset fund, hedge fund, mutual fund, insurance company, financial institution or investment vehicle engaged in the business of investing in, acquiring or trading commercial loans, bonds and similar extensions of credit in the ordinary course (and not organized primarily for the purpose of making equity investments)) to the extent that the Issuer determines in good faith that the provision of such information to such Person would be competitively harmful to the Issuer and its Subsidiaries; and provided, further, that such Holders, prospective investors, security analysts or market makers will agree to (1) issue a press release treat all such reports (and the information contained therein) and information as confidential, (2) not use such reports and the information contained therein for any purpose other than their investment or potential investment in the Notes and (3) not publicly disclose or distribute to an internationally recognized wire service no fewer than three Business Days prior any competitor any such reports (and the information contained therein).
(e) The Issuer will be deemed to have furnished the delivery or posting of the annual and quarterly reports required by clauses (1in Sections 4.03(a)(i) and (2ii) of Section 4.03(a) announcing if the date on which Issuer, any Qualified Reporting Subsidiary or any Parent Company has filed reports containing such reports will be made available to information with the Holders and directing Holders, research analysts and prospective purchasers to contact the investor relations office of the Issuer to obtain copies of such reports;SEC.
(2f) maintain a website (which may be password protected so long as To the password extent any information is made promptly available by not provided within the Issuer to Holders, research analysts and prospective purchasers) to which all of the reports and press releases required by time periods specified in this Section 4.03 are posted; andand such information is subsequently provided, the Issuer will be deemed to have satisfied its obligations with respect thereto at such time and any Default with respect thereto will be deemed to have been cured.
(3g) host and The Issuer shall use its commercially reasonable efforts, consistent with its judgment as to what is prudent at the time, to participate in customary quarterly conference calls (which may be a single conference call together with investors holding other securities or Indebtedness of the Issuer and/or its Restricted Subsidiaries and/or any direct or indirect parent Parent Company of the IssuerIssuer and may be held prior to such time that the annual or quarterly information and reports required by Section 4.03(a) are furnished to Holders) to discuss operating results and related matters. The Issuer shall issue a press release or post to the website of the Issuer or any Parent Company or on Intralinks or any comparable password protected online data system, which will provide the date and time of any such call and information on how to obtain access to the conference call or will direct Holders, prospective purchasers investors and research securities analysts to contact the investor relations office of the Issuer to obtain access to the conference call; provided.
(h) Notwithstanding the foregoing, that the Issuer shall not be financial statements, information, auditors’ reports and other documents and information required to undertake be provided pursuant to Section 4.03(a) may be, rather those of the actions set forth in clauses Issuer, those of (1), (2i) and (3) of this Section 4.03(c) at any time that the Issuer predecessor or any direct or indirect parent thereof is otherwise undertaking similar actions on behalf of, and making similar information available to, investors holding other securities successor of the Issuer or any direct entity meeting the requirements of Section 4.03(h)(ii) or indirect parent thereof; provided(iii), further, that such information described in the immediately preceding proviso is made available to the Holders.
(dii) In addition, to the extent not satisfied by the foregoing, any Wholly-Owned Restricted Subsidiary of the Issuer willthat, for so long as any Notes are outstandingtogether with its consolidated Subsidiaries, furnish to Holders and to prospective purchasers, upon their request, constitutes substantially all of the information required to be delivered pursuant to Rule 144A(d)(4) under the Securities Act.
(e) The Issuer may satisfy its obligations in this Section 4.03 with respect to financial information relating to assets of the Issuer by furnishing financial information relating to a direct and its consolidated Subsidiaries (“Qualified Reporting Subsidiary”) or indirect parent company(iii) any Parent Company of the Issuer; provided that, if and for so long as the financial information required to be provided pursuant to clause (i) or (ii) of Section 4.03(a) relates to such parent company shall have Qualified Reporting Subsidiary of the Issuer or such Parent Company of the Issuer that has Independent Assets and Operations and there are material differences between the financial information of the Issuer and such Qualified Reporting Subsidiary of the Issuer or Operations (as defined below)such Parent Company of the Issuer that has Independent Assets and Operations, the same is such financial information will be accompanied by consolidating information information, which may be posted to the website of the Issuer or any Parent Company or on Intralinks or any comparable password protected online data system or otherwise provided in accordance with Section 4.03(d), that explains in reasonable detail (in the good faith judgment of the Issuer) the material differences between the information relating to such parent companyQualified Reporting Subsidiary or such Parent Company (as the case may be), on the one hand, and the information relating to the Issuer and its Restricted Subsidiaries on a stand-alone standalone basis, on the other hand. “Independent Assets For the avoidance of doubt, the consolidating information referred to in the proviso in the preceding sentence need not be audited or Operations” meansreviewed.
(i) It is understood that the Trustee shall have no obligation whatsoever to determine whether or not such information, documents or reports have been posted on the Issuer’s website. The posting or delivery of any such information, documents and reports to the Trustee is for informational purposes only and the Trustee’s receipt of such information, documents and reports shall not constitute constructive notice of any information contained therein or determinable from information contained therein, including the Issuer’s compliance with any of the covenants under this Indenture (as to which the Trustee is entitled to rely exclusively on an Officer’s Certificate). The Trustee shall have no duty to review or analyze reports, information and documents delivered to it. Additionally, the Trustee shall not be obligated to monitor or confirm, on a continuing basis or otherwise, the Issuer’s compliance with the covenants or with respect to any such parent companyreports or other documents filed with any protected online data system, that such parent company’s total assets, revenues, income from continuing operations before income taxes and cash flows from operating activities (excluding in each case amounts related to its investment in the Issuer and the Restricted Subsidiaries), determined in accordance with GAAP and as shown or participate on the most recent balance sheet of such parent company, is more than 3.0% of such parent company’s corresponding consolidated amountany conference calls.
Appears in 1 contract
Reports and Other Information. (a) Notwithstanding that the Issuer may not be subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act or otherwise report on an annual and quarterly basis on forms provided for such annual and quarterly reporting pursuant to rules and regulations promulgated by the SEC, the Issuer shall furnish to the Trustee and Holders of the Notes (without exhibits) or post on its website (which may be password protected so long as the password is made promptly available by the Issuer to the Holders, research analysts and prospective purchasers upon request) no later than 15 days after the dates specified below:
(1) within 90 days after the end of each fiscal year (beginning with the fiscal year ending after the Issue Date), annual reports containing substantially all of the information required to be contained in an Annual Report on Form 10-K if the Issuer had been a reporting company under the Exchange Act (but only to the extent similar information is included in the Offering Memorandum); provided, that the Issuer shall not be required to provide the information otherwise required to be presented by reporting companies under the Exchange Act pursuant to Part III of Form 10-K except for such information as would be required by Item 401 of Regulation S-K (other than the information required by subsections (c) and (g) of such item), Item 403(a) of Regulation S-K and Item 404 of Regulation S-K (assuming a transaction threshold of $2,500,000 2,000,000 rather than $120,000 and other than information with respect to employment and compensation arrangements and the information required by Item 404(b));
(2) within 45 days after the end of each of the first three fiscal quarters of each fiscal year, reports containing substantially all of the information required to be contained in a Quarterly Report on Form 10-Q if the Issuer had been a reporting company under the Exchange Act (but only to the extent similar information is included in the Offering Memorandum); and
(3) within the later of 15 days after the occurrence of the specified event or within five (5) Business Days of the date on which an event would have been required to be reported on a Form 8-K (as in effect on the Issue Date), information pursuant to Items 1.01 (Entry into a Material Definitive Agreement), 1.02 (Termination of a Material Definitive Agreement), 1.03 (Bankruptcy or Receivership), 2.01 (Completion of Acquisition or Disposition of Assets), 2.04 (Triggering Events that Accelerate or Increase a Direct Financial Obligation or an Obligation under an Off-Balance Sheet Arrangement), 2.06 (Material Impairment), 4.01 (Changes in Registrant’s Certifying Accountants), 4.02 (Non-Reliance on Previously Issued Financial Statements or a Related Audit Report or Completed Interim Review), 5.01 (Changes in Control of Registrant) 5.02(a),(b), 5.02(a), (b) or (c) (Departure of Directors or Principal Officers; Election of Directors; Appointment of Principal Officers; Compensation Arrangements of Certain Officers) (other than any information relating to compensation arrangements with any directors or officers) and 9.01(a) (Financial Statements and Exhibits) (Exhibits but only with respect to historical financial statements relating to transactions required to be reported pursuant to Item 2.01 and involving acquisitions of Persons that had revenues in excess of $500,000,000 200,000,000 for the last four completed fiscal quarters prior to the consummation of the acquisition) of a Current Report on Form 8-K (as in effect of the Issue Date); provided, that (a) no such report or information will be required to be so furnished if the Issuer determines in good faith that such event is not material to the Holders or the business, assets, operations or financial condition of the Issuer and its Restricted Subsidiaries, taken as a whole and (b) trade secrets and other confidential information that is competitively sensitive in the good faith and reasonable determination of the Issuer may be excluded from disclosures.
(b) The reports required pursuant to clauses (1), (2) and (3) of Section 4.03(a) will not be required to comply with (i) Section 302, Section 404 or Section 906 of the XxxxxxxxSxxxxxxx-Xxxxx Act of 2002, (ii) related Items 307 and 308 of Regulation S-K promulgated by the SEC, (iii) Item 10(e) of Regulation S-K (with respect to any non-GAAP financial measures contained therein) or any comparable successor provision and (iv) Regulation S-X Rule 3-10.
; provided that if non-Guarantor Subsidiaries (con a consolidated basis) So long constitute more than 10% of the Issuer’s consolidated revenues, operating income, assets or debt for the last four quarters ended on, or as any Notes are outstandingof, as the case may be, the Issuer will also:
(1) issue a press release to an internationally recognized wire service no fewer than three Business Days prior to the delivery or posting date of the annual and quarterly any reports required by pursuant to clauses (1) and or (2) of Section 4.03(a) announcing the date on which such reports will be made available to the Holders and directing Holders), research analysts and prospective purchasers to contact the investor relations office of then the Issuer to obtain copies must provide supplemental unaudited disclosure of such reports;
(2) maintain a website (which may be password protected so long as the password is made promptly available by the Issuer to Holders, research analysts and prospective purchasers) to which all of the reports and press releases required by this Section 4.03 are posted; and
(3) host and participate in customary quarterly conference calls (which may be a single conference call together with investors holding other securities of the Issuer and/or its Restricted Subsidiaries and/or any direct or indirect parent of the Issuer) to discuss operating results and related matters. The Issuer shall issue a press release which will provide the date and time of any such call and will direct Holdersby geographic region, prospective purchasers and research analysts to contact the investor relations office of the Issuer to obtain access to the conference call; provided, that the Issuer shall not be required to undertake the actions set forth in clauses (1), (2) and (3) of this Section 4.03(c) at any time that the Issuer or any direct or indirect parent thereof is otherwise undertaking similar actions on behalf of, and making similar information available to, investors holding other securities of the Issuer or any direct or indirect parent thereof; provided, further, provided that such information described in the immediately preceding proviso is made available operating results shall also include disclosure of United States operating income and indebtedness for borrowed money payable to the Holders.
Persons (d) In addition, to the extent not satisfied by the foregoing, the Issuer will, for so long as any Notes are outstanding, furnish to Holders and to prospective purchasers, upon their request, the information required to be delivered pursuant to Rule 144A(d)(4) under the Securities Act.
(e) The Issuer may satisfy its obligations in this Section 4.03 with respect to financial information relating to the Issuer by furnishing financial information relating to a direct or indirect parent company; provided that, if and for so long as such parent company shall have Independent Assets or Operations (as defined below), the same is accompanied by consolidating information that explains in reasonable detail the differences between the information relating to such parent company, on the one hand, and the information relating to other than the Issuer and its Restricted Subsidiaries on a stand-alone basis, on the other hand. “Independent Assets or Operations” means, with respect to any such parent company, that such parent company’s total assets, revenues, income from continuing operations before income taxes and cash flows from operating activities (excluding in each case amounts related to its investment in the Issuer and the Restricted Subsidiaries), determined in accordance with GAAP and as shown on the most recent balance sheet of such parent company, is more than 3.0% of such parent company’s corresponding consolidated amount.
Appears in 1 contract
Reports and Other Information. (a) Notwithstanding that the Issuer may not be subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act or otherwise report on an annual and quarterly basis on forms provided for such annual and quarterly reporting pursuant to rules and regulations promulgated by the SECSo long as any Notes are outstanding, the Issuer shall furnish to the Trustee and Holders of the Notes (without exhibits) or post on its website (which may be password protected so long as the password is made promptly available by the Issuer to the Holders, research analysts and prospective purchasers upon request) no later than 15 days after the dates specified below:
(1) within 90 days after the end of each fiscal year (beginning with the fiscal year ending after the Issue Date), x) all annual reports containing and quarterly financial statements substantially all of the information in forms that would be required to be contained in an Annual Report a filing with the SEC on Form Forms 10-K and 10-Q of the Issuer, if the Issuer had been were required to file such forms, plus a reporting company under the Exchange Act “Management’s Discussion and Analysis of Financial Condition and Results of Operations,” (but only y) with respect to the extent similar information is included annual and quarterly information, a presentation of Adjusted EBITDA of the Issuer substantially consistent with the presentation thereof in the Offering Memorandum)Memorandum and derived from such financial information, and (z) with respect to the annual financial statements only, a report on the annual financial statements by the Issuer’s independent registered public accounting firm; providedand
(2) within 10 Business Days after the occurrence of an event required to be therein reported, such other information containing substantially the same information that the Issuer shall not would be required to provide be contained in filings with the SEC on Form 8-K under Items 1.01, 1.02, 1.03, 2.01, 2.05, 2.06, 4.01, 4.02, 5.01 and 5.02(b) and (c) (other than with respect to information otherwise required to be presented by reporting companies under the Exchange Act pursuant to Part III of Form 10-K except for such information as would be required or contemplated by Item 401 402 of Regulation S-K promulgated by the SEC) as in effect on the Issue Date if the Issuer were required to file such reports; provided, however, that no such current report shall be required to include as an exhibit, or to include a summary of the terms of, any employment or compensatory arrangement agreement, plan or understanding between the Issuer (other than the information required by subsections (cor any of its Subsidiaries) and any director, member, partner, manager or executive officer, of the Issuer (gor any of its Subsidiaries); provided, however, that (i) in no event shall such financial statements or reports be required to comply with (x) Rule 3-10 of Regulation S-X promulgated by the SEC (or such itemother rule or regulation that amends, supplements or replaces such Rule 3-10, including for the avoidance of doubt, Rules 13-01 or 13-02 of Regulation S-X promulgated by the SEC), (x) Rule 3-09 of Regulation S-X (or such other rule or regulation that amends, supplements or replaces such Rule 3-09), (y) Rule 3-16 of Regulation S-X (or such other rule or regulation that amends, supplements or replaces such Rule 3-16 or (z) any requirement to otherwise include any schedules or separate financial statements of any of Subsidiaries of the Issuer or any Parent Entity, Affiliates or equity method investees, (ii) in no event shall such financial statements or reports be required to comply with Regulation G under the Exchange Act or Item 403(a10(e) of Regulation S-K and Item 404 of Regulation S-K (assuming a transaction threshold of $2,500,000 rather than $120,000 and other than information promulgated by the SEC with respect to employment and compensation arrangements and the information required by Item 404(b));
any non-GAAP financial measures contained therein, (2iii) within 45 days after the end of each of the first three fiscal quarters of each fiscal year, in no event shall such financial statements or reports containing substantially all of the information be required to be contained in a Quarterly Report on Form 10-Q if the Issuer had been a reporting company under the Exchange Act (but only include any information that is not otherwise similar to the extent similar information is currently included in the Offering Memorandum); and
(3) within the later of 15 days after the occurrence of the specified event or within five (5) Business Days of the date on which an event would have been required to be reported on a Form 8-K (as in effect on the Issue Date), information pursuant to Items 1.01 (Entry into a Material Definitive Agreement), 1.02 (Termination of a Material Definitive Agreement), 1.03 (Bankruptcy or Receivership), 2.01 (Completion of Acquisition or Disposition of Assets), 2.04 (Triggering Events that Accelerate or Increase a Direct Financial Obligation or an Obligation under an Off-Balance Sheet Arrangement), 2.06 (Material Impairment), 4.01 (Changes in Registrant’s Certifying Accountants), 4.02 (Non-Reliance on Previously Issued Financial Statements or a Related Audit Report or Completed Interim Review), 5.01 (Changes in Control of Registrant), 5.02(a), (b) or (c) (Departure of Directors or Principal Officers; Election of Directors; Appointment of Principal Officers; Compensation Arrangements of Certain Officers) (other than any information relating to compensation arrangements with any directors or officers) and 9.01(a) (Financial Statements and Exhibits) (but only with respect to historical financial statements relating to transactions required to be reported pursuant to Item 2.01 and involving acquisitions of Persons that had revenues in excess of $500,000,000 for the last four completed fiscal quarters prior to the consummation of the acquisitionreports provided under clause (2) of a Current Report on Form 8-K above, (as in effect of the Issue Date); provided, that (aiv) no such report or information will reports referenced under clause (2) above shall be required to be so furnished if the Issuer determines in its good faith judgment that such event is not material to the Holders or the business, assets, operations or financial condition position of the Issuer and its Restricted Subsidiaries, taken as a whole whole, and (bv) trade secrets in no event shall reports referenced in clause (2) above be required to include as an exhibit copies of any agreements, financial statements or other items that would be required to be filed as exhibits to a current report on Form 8-K except for (x) agreements evidencing material Indebtedness and other confidential (y) historical and pro forma financial information that is competitively sensitive to the extent reasonably available and, in the good faith any case with respect to such pro forma financial information, such pro forma financial information shall include only pro forma revenues, Consolidated EBITDA and reasonable determination of the Issuer may be excluded from disclosurescapital expenditures in lieu thereof.
(b) The All such annual reports shall be furnished within 90 days after the end of the fiscal year to which they relate, and all such quarterly reports shall be furnished within 45 days after the end of the fiscal quarter to which they relate.
(c) At any time that any of the Issuer’s Subsidiaries are Unrestricted Subsidiaries and if any such Unrestricted Subsidiary or group of Unrestricted Subsidiaries, if taken together as one Subsidiary, would constitute a Significant Subsidiary of the Issuer, then the quarterly and annual financial information required pursuant to clauses (1)by the preceding paragraph will include a reasonably detailed presentation, (2) and (3) of Section 4.03(a) will not be required to comply with either (i) Section 302, Section 404 or Section 906 on the face of the Xxxxxxxx-Xxxxx Act of 2002financial statements or in the footnotes thereto, (ii) related Items 307 in “Management’s Discussion and 308 Analysis of Regulation S-K promulgated by the SEC, Financial Condition and Results of Operations” or (iii) Item 10(ein any other comparable section, of the financial condition and results of operations of the Issuer and Restricted Subsidiaries separate from the financial condition and results of operations of such Unrestricted Subsidiaries of the Issuer.
(d) of Regulation S-K The Issuer shall make available such information and such reports (with respect as well as the details regarding the conference call described in Section 4.03(e)(1)) to any nonHolder and, upon request, to any beneficial owner of the Notes, in each case by posting such information on its website, on Intralinks or any comparable password-GAAP financial measures protected online data system which will require a confidentiality acknowledgment, and will make such information readily available to any Holder, any bona fide prospective investor in the Notes, any securities analyst (to the extent providing analysis of investment in the Notes) or any market maker in the Notes who agrees to treat such information as confidential or accesses such information on Intralinks or any comparable password-protected online data system which will require a confidentiality acknowledgment; provided that the Issuer shall post such information thereon and make readily available any password or other login information to any such Holder, bona fide prospective investor, securities analyst or market maker; provided, further, however, that the Issuer may deny access to any competitively-sensitive information otherwise to be provided pursuant to this Section 4.03 to any such Holder, prospective investor, security analyst or market maker that is a competitor of the Issuer and its Subsidiaries to the extent that the Issuer determines in good faith that the provision of such information to such Person would be competitively harmful to the Issuer and its Subsidiaries; and provided, further, that such Holders, bona fide prospective investors, security analysts or market makers shall agree to (i) treat all such reports (and the information contained therein) and information as confidential, (ii) not use such reports and the information contained therein for any purpose other than their investment or any comparable successor provision potential investment in the Notes and (iviii) Regulation S-X Rule 3-10not publicly disclose any such reports (and the information contained therein).
(ce) So long as any Notes are outstanding, the Issuer will (or a Parent Entity) shall also:
(1) as promptly as reasonably practicable after furnishing to the Trustee each annual and quarterly report required by clause (1) of Section 4.03(a) or such earlier time after the completion of such reporting period, hold a conference call to discuss the results of operations for the relevant reporting period (which conference call, for the avoidance of doubt, may be held prior to such time that the annual or quarterly financial statements required by the first paragraph of this “Reports and Other Information” covenant for such reporting period are furnished to Holders so long as an earnings release for the applicable period has been furnished or otherwise made available to the Holders prior to the conference call) and may be the same as any call for the Issuer’s or any Parent Entity’s equity holders; and
(2) issue a press release to an internationally the appropriate nationally recognized wire service no fewer than three Business Days services prior to the delivery or posting date of the annual and quarterly reports conference call required by clauses to be held in accordance with clause (1) and (2) of Section 4.03(a) announcing the date on which such reports will be made available to the Holders and directing Holders, research analysts and prospective purchasers to contact the investor relations office of the Issuer to obtain copies of such reports;
(2) maintain a website (which may be password protected so long as the password is made promptly available by the Issuer to Holders, research analysts and prospective purchasers) to which all of the reports and press releases required by this Section 4.03 are posted; and
(3) host and participate in customary quarterly conference calls (which may be a single conference call together with investors holding other securities of the Issuer and/or its Restricted Subsidiaries and/or any direct or indirect parent of the Issuer) to discuss operating results and related matters. The Issuer shall issue a press release which will provide the date and time of any such call and will direct Holders, prospective purchasers and research analysts to contact the investor relations office of the Issuer to obtain access to the conference call; provided, that the Issuer shall not be required to undertake the actions set forth in clauses (1), (2) and (3) of this Section 4.03(c) at any 4.03(e), announcing the time that and date of such conference call and either including all information necessary to access the Issuer call or any direct or indirect parent thereof is otherwise undertaking similar actions on behalf ofinforming Holders, beneficial owners, prospective investors, market makers and making similar information available to, investors holding other securities of the Issuer or any direct or indirect parent thereof; provided, further, that analysts how they can obtain such information described in the immediately preceding proviso is made available to the Holdersinformation.
(df) In addition, to the extent not satisfied by the foregoing, the Issuer will, for so long as any Notes are outstanding, shall furnish to Holders and to prospective purchasersinvestors, upon their request, the any information required to be delivered pursuant to Rule 144A(d)(4) under the Securities Act so long as the Notes are not freely transferable under the Securities Act.
(eg) The Issuer may satisfy its obligations in under this Section 4.03 with respect to financial information relating to the Issuer by furnishing financial and other information relating to a any Parent Entity instead of the Issuer; provided that to the extent such Parent Entity holds assets (other than its direct or indirect parent company; provided thatinterest in the Issuer) that exceeds the lesser of (i) 1.0% of revenues of such Parent Entity and (ii) 1.0% of the total revenue for the preceding fiscal year of such Parent Entity, if and for so long as then such parent company information related to such Parent Entity shall have Independent Assets or Operations (as defined below), the same is be accompanied by consolidating information information, which may be unaudited, that explains in reasonable detail the differences between the information relating to of such parent companyParent Entity, on the one hand, and the information relating to the Issuer and its Restricted Subsidiaries on a stand-alone basis, on the other hand. “Independent Assets Delivery of such reports, information and documents to the Trustee is for informational purposes only and the Trustee’s receipt of such shall not constitute actual or Operations” meansconstructive knowledge or notice of any information contained therein or determinable from information contained therein, including the Issuer’s compliance with respect any of its covenants hereunder (as to which the Trustee is entitled to rely exclusively on Officer’s Certificates).
(h) The Issuer will be deemed to have furnished the financial statements and other information referred to in clauses (1) and (2) of Section 4.03(a) if the Issuer or any Parent Entity has filed reports containing such information (or any such parent company, that such parent company’s total assets, revenues, income from continuing operations before income taxes and cash flows from operating activities (excluding in each case amounts related to its investment in the Issuer and the Restricted Subsidiaries), determined information of a Parent Entity in accordance with GAAP the immediately preceding paragraph) with the SEC.
(i) To the extent any information is not provided within the time periods specified in this Section 4.03 and as shown on such information is subsequently provided, the most recent balance sheet of Issuer will be deemed to have satisfied its obligations with respect thereto at such parent company, is more than 3.0% of such parent company’s corresponding consolidated amounttime and any Default with respect thereto shall be deemed to have been cured.
Appears in 1 contract
Samples: Indenture (Avantor, Inc.)
Reports and Other Information. Deliver to the Administrative Agent for prompt further distribution by the Administrative Agent to each Lender (a) Notwithstanding that the Issuer may not be subject to the reporting requirements limitations on distribution of any such information to Public Lenders as described in Section 13 or 15(d6.02) each of the Exchange Act or otherwise report on an annual and quarterly basis on forms provided for such annual and quarterly reporting pursuant to rules and regulations promulgated by the SEC, the Issuer shall furnish to the Trustee and Holders of the Notes (without exhibits) or post on its website (which may be password protected so long as the password is made promptly available by the Issuer to the Holders, research analysts and prospective purchasers upon request) no later than 15 days after the dates specified belowfollowing:
(1) subject to the immediately succeeding proviso, within 90 days after the end of each fiscal year (beginning with the fiscal year ending after the Issue Date), annual reports containing substantially all of the information Borrower, all annual financial statements of the Borrower substantially in the form that would be required to be contained in an Annual Report a filing with the SEC on Form 10-K if K, in accordance with the Issuer had been a reporting company under the Exchange Act (but only to the extent similar information is included in the Offering Memorandum); provided, that the Issuer shall not be required to provide the information otherwise required to be presented by reporting companies under the Exchange Act pursuant to Part III requirements of such Form 10-K except for as of the Effective Date, if the Borrower were required to file such information as would be required form, together with a report thereon by Item 401 the Borrower’s independent registered public accounting firm, and a “Management’s Discussion and Analysis of Regulation S-K (other than the information required by subsections (c) Financial Condition and (g) Results of such item), Item 403(a) of Regulation S-K and Item 404 of Regulation S-K (assuming a transaction threshold of $2,500,000 rather than $120,000 and other than information with respect to employment and compensation arrangements and the information required by Item 404(b))Operations;”
(2) within 45 days after the end of each of the first three (3) fiscal quarters of each fiscal year, reports containing substantially all year of the information Borrower commencing with June 30, 2017, all quarterly financial statements of the Borrower substantially in the form that would be required to be contained in a Quarterly Report filing with the SEC on Form 10-Q if the Issuer had been a reporting company under the Exchange Act (but only to the extent similar information is was included in the Offering Memorandum); , in accordance with the requirements of such Form 10-Q as of the Closing Date (solely with respect to the first three fiscal quarters of each fiscal year), if the Borrower were required to file such form, and a “Management’s Discussion and Analysis of Financial Condition and Results of Operations;” and
(3) within the later of 15 days promptly from time to time after the occurrence of the specified event or within five (5) Business Days of the date on which an event would have been required to be reported therein reported, such other information containing substantially the same information that would be required to be contained in filings with the SEC on a Form 8-K, in accordance with the requirements of such Form 8-K (as in effect on of the Issue Closing Date), information pursuant to Items 1.01 (Entry into a Material Definitive Agreement), 1.02 (Termination of a Material Definitive Agreement), under Items: 1.03 (Bankruptcy or Receivership), ; 2.01 (Completion of Acquisition or Disposition of Assets), ; 2.04 (Triggering Events that Accelerate or Increase a Direct Financial Obligation or an Obligation under an Off-Balance Sheet Arrangement), 2.06 (Material Impairment), 4.01 (Changes in Registrant’s Certifying Accountants), ; 4.02 (Non-Reliance on Previously Issued Financial Statements or a Related Audit Report or Completed Interim Review), ; 5.01 (Changes in Control of Registrant), 5.02(a; 5.02
(a) (1) (Resignation of Director due to Disagreement with Registrant); 5.02(c)(1) (Name and Position of Newly Appointed Officer and Date of Appointment); and 5.03(b) (Changes in Fiscal Year), if the Borrower were required to file such reports; provided, however, that
(bA) no such reports referenced under clause (1) or (c2) above will be required to include as an exhibit or summary of terms of, any employment or compensatory arrangement agreement, plan or understanding between the Borrower (Departure or any of Directors or Principal Officers; Election of Directors; Appointment of Principal Officers; Compensation Arrangements of Certain Officers) (other than any information relating to compensation arrangements with any directors or officersits Subsidiaries) and 9.01(aany director, manager or executive officer, of the Borrower (or any of its Subsidiaries);
(B) in no event will such reports be required to comply with Section 302, Section 404 or Section 906 of the Xxxxxxxx-Xxxxx Act of 2002, or related Items 307 and 308 of Regulation S-K promulgated by the SEC;
(Financial Statements and ExhibitsC) in no event will such reports be required to comply with Item 302 of Regulation S-K promulgated by the SEC;
(but only D) in no event will such reports be required to comply with Rule 3-10 of Regulation S-X promulgated by the SEC or contain separate financial statements for the Borrower, the Guarantors or other Subsidiaries the shares of which may be pledged to secure the Loans or any Guarantee that would be required under (i) Section 3-09 of Regulation S-X or (ii) Section 3-16 of Regulation S-X, respectively, promulgated by the SEC;
(E) in no event will such reports be required to comply with Regulation G under the Exchange Act or Item 10(e) of Regulation S-K promulgated by the SEC with respect to historical any non-GAAP financial statements relating to transactions required to be reported pursuant to Item 2.01 and involving acquisitions of Persons that had revenues in excess of $500,000,000 for the last four completed fiscal quarters prior to the consummation of the acquisition) of a Current Report on Form 8-K measures contained therein;
(as in effect of the Issue Date); provided, that (aF) no such report reports referenced under clause (1) or information (2) above will be required to be so furnished if the Issuer Borrower determines in its good faith judgment that such event is not material to the Holders Lenders or the business, assets, operations or financial condition position of the Issuer Borrower and its Restricted Subsidiaries, taken as a whole and whole;
(bG) in no event will such reports be required to comply with Item 601 of Regulation S-K promulgated by the SEC (with respect to exhibits) or, with respect to reports referenced in clause (2) above, to include as an exhibit copies of any agreements, financial statements or other items that would be required to be filed as exhibits to a current report on Form 8-K, except for agreements evidencing material Indebtedness (excluding any schedules thereto);
(H) in no event will reports delivered prior to the completion of the first fiscal year following the Closing Date be required to comply with Regulation S-X of the SEC, give pro forma effect to the Transactions, or contain all purchase accounting adjustments relating to the Transactions to the extent it is not practicable to include any such adjustments in such report;
(I) in no event will comparisons to the financial statements of the corresponding period of the prior year be required until the delivery of financial statements for a period ending in 2018 unless such comparative data is provided to lenders under the Senior Credit Facilities;
(J) trade secrets and other confidential information that is competitively sensitive in the good faith and reasonable determination of the Issuer Borrower may be excluded from any disclosures.; and
(bK) The reports required pursuant to clauses (1), (2) and (3) of Section 4.03(a) such information will not be required to comply with (icontain any “segment reporting.” Notwithstanding the foregoing, the obligations referred to in Sections 6.01(1) Section 302, Section 404 or Section 906 of the Xxxxxxxx-Xxxxx Act of 2002, (iiand 6.01(2) related Items 307 and 308 of Regulation S-K promulgated by the SEC, (iii) Item 10(e) of Regulation S-K (may be satisfied with respect to any nonfinancial information of the Borrower and its Subsidiaries by furnishing the Borrower’s Form 10-GAAP financial measures contained thereinK or 10-Q, as applicable, filed with the SEC (and the public filing of such report with the SEC shall constitute delivery under this Section 6.01); provided that with respect to the preceding clause to the extent such information is in lieu of information required to be provided under Section 6.01(1) (it being understood that such information may be audited at the option of the Borrower), such materials are accompanied by a report and opinion of an independent registered public accounting firm of nationally recognized standing or any comparable successor provision and (iv) Regulation S-X Rule 3-10another accounting firm reasonably acceptable to the Administrative Agent.
(4) In addition, notwithstanding the foregoing, the financial statements, information, auditors’ reports and other documents and information required to be provided pursuant to this Section 6.01 may be, rather than those of the Borrower, those of (a) any predecessor or successor of the Borrower, (b) any Wholly-Owned Restricted Subsidiary of the Borrower that, together with its consolidated Subsidiaries, constitutes substantially all of the assets of the Borrower and its consolidated Subsidiaries (“Qualified Reporting Subsidiary”) or (c) So long as any Notes are outstanding, the Issuer will also:
(1) issue a press release to an internationally recognized wire service no fewer than three Business Days prior to the delivery direct or posting indirect parent of the annual and quarterly reports Borrower; provided that, if the financial information required by to be provided pursuant to clauses (1) and (2) above relates to such Qualified Reporting Subsidiary of Section 4.03(a) announcing the date on which Borrower, such reports financial information will be made available to the Holders and directing Holdersaccompanied by consolidating information (which need not be audited), research analysts and prospective purchasers to contact the investor relations office of the Issuer to obtain copies of such reports;
(2) maintain a website (which may be posted to the website of the Borrower or on Intralinks, SyndTrak, ClearPar or any comparable password protected so long as online data system, that explains in reasonable detail (in the password is made promptly available by the Issuer to Holders, research analysts and prospective purchasers) to which all good faith judgment of the reports Borrower) the differences between the information relating to such Qualified Reporting Subsidiary, on the one hand, and press releases the information relating to the Borrower and its Subsidiaries on a stand-alone basis, on the other hand.
(5) Any financial statements required by to be delivered pursuant to Sections 6.01(1) or 6.01(2) shall not be required to contain all purchase accounting adjustments relating to the Transactions or any other transaction(s) permitted hereunder to the extent it is not practicable to include any such adjustments in such financial statements.
(6) Notwithstanding anything herein to the contrary, the Borrower will not be deemed to have failed to comply with any of its obligations under this Section for purposes of Section 6.01(3) hereof until 180 days after the date any report is due under this Section 4.03.
(7) To the extent any information is not provided within the time periods specified in this Section 4.03 are posted; andand such information is subsequently provided, the Borrower will be deemed to have satisfied its obligations with respect thereto at such time and any Default with respect thereto will be deemed to have been cured.
(3) host and 8) The Borrower shall use its commercially reasonable efforts, consistent with its judgment as to what is prudent at the time, to participate in customary quarterly conference calls after the delivery of the information referred to in this Section (which may be a single conference call together with investors and lenders holding other securities or Indebtedness of the Issuer Borrower and/or its Restricted Subsidiaries and/or any direct or indirect parent of the IssuerSubsidiaries) to discuss operating results and related matters. The Issuer Borrower shall issue a press release which will provide the date and time of any such call and will direct Holders, prospective purchasers and research analysts Lenders to contact the investor relations office of the Issuer Borrower to obtain access to the conference call; provided, that the Issuer shall not be required to undertake the actions set forth in clauses (1), (2) and (3) of this Section 4.03(c) at any time that the Issuer or any direct or indirect parent thereof is otherwise undertaking similar actions on behalf of, and making similar information available to, investors holding other securities of the Issuer or any direct or indirect parent thereof; provided, further, that such information described in the immediately preceding proviso is made available to the Holders.
(d) In addition, to the extent not satisfied by the foregoing, the Issuer will, for so long as any Notes are outstanding, furnish to Holders and to prospective purchasers, upon their request, the information required to be delivered pursuant to Rule 144A(d)(4) under the Securities Act.
(e) The Issuer may satisfy its obligations in this Section 4.03 with respect to financial information relating to the Issuer by furnishing financial information relating to a direct or indirect parent company; provided that, if and for so long as such parent company shall have Independent Assets or Operations (as defined below), the same is accompanied by consolidating information that explains in reasonable detail the differences between the information relating to such parent company, on the one hand, and the information relating to the Issuer and its Restricted Subsidiaries on a stand-alone basis, on the other hand. “Independent Assets or Operations” means, with respect to any such parent company, that such parent company’s total assets, revenues, income from continuing operations before income taxes and cash flows from operating activities (excluding in each case amounts related to its investment in the Issuer and the Restricted Subsidiaries), determined in accordance with GAAP and as shown on the most recent balance sheet of such parent company, is more than 3.0% of such parent company’s corresponding consolidated amount.
Appears in 1 contract
Samples: Bridge Credit Agreement (Superior Industries International Inc)
Reports and Other Information. (a) Notwithstanding that the Issuer may not be subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act or otherwise report on an annual and quarterly basis on forms provided for such annual and quarterly reporting pursuant to rules and regulations promulgated by the SEC, the Issuer shall furnish to the Trustee and Holders of the Notes (without exhibits) or post on its website (which may be password protected so long as the password is made promptly available by the Issuer to the Holders, research analysts and prospective purchasers upon request) no later than 15 days after the dates specified below:
(1) within 90 days after the end of each fiscal year (beginning with the fiscal year ending after the Issue Date), annual reports containing substantially all of the information required to be contained in an Annual Report on Form 10-K if the Issuer had been a reporting company under the Exchange Act (but only to the extent similar information is included in the Offering Memorandum); provided, that the Issuer shall not be required to provide the information otherwise required to be presented by reporting companies under the Exchange Act pursuant to Part III of Form 10-K except for such information as would be required by Item 401 of Regulation S-K (other than the information required by subsections (c) and (g) of such item), Item 403(a) of Regulation S-K and Item 404 of Regulation S-K (assuming a transaction threshold of $2,500,000 2,000,000 rather than $120,000 and other than information with respect to employment and compensation arrangements and the information required by Item 404(b));
(2) within 45 days after the end of each of the first three fiscal quarters of each fiscal year, reports containing substantially all of the information required to be contained in a Quarterly Report on Form 10-Q if the Issuer had been a reporting company under the Exchange Act (but only to the extent similar information is included in the Offering Memorandum); and
(3) within the later of 15 days after the occurrence of the specified event or within five (5) Business Days of the date on which an event would have been required to be reported on a Form 8-K (as in effect on the Issue Date), information pursuant to Items 1.01 (Entry into a Material Definitive Agreement), 1.02 (Termination of a Material Definitive Agreement), 1.03 (Bankruptcy or Receivership), 2.01 (Completion of Acquisition or Disposition of Assets), 2.04 (Triggering Events that Accelerate or Increase a Direct Financial Obligation or an Obligation under an Off-Balance Sheet Arrangement), 2.06 (Material Impairment), 4.01 (Changes in Registrant’s Certifying Accountants), 4.02 (Non-Reliance on Previously Issued Financial Statements or a Related Audit Report or Completed Interim Review), 5.01 (Changes in Control of Registrant), 5.02(a), (b) or (c) (Departure of Directors or Principal Officers; Election of Directors; Appointment of Principal Officers; Compensation Arrangements of Certain Officers) (other than any information relating to compensation arrangements with any directors or officers) and 9.01(a) (Financial Statements and Exhibits) (but only with respect to historical financial statements relating to transactions required to be reported pursuant to Item 2.01 and involving acquisitions of Persons that had revenues in excess of $500,000,000 200,000,000 for the last four completed fiscal quarters prior to the consummation of the acquisition) of a Current Report on Form 8-K (as in effect of the Issue Date); provided, that (a) no such report or information will be required to be so furnished if the Issuer determines in good faith that such event is not material to the Holders or the business, assets, operations or financial condition of the Issuer and its Restricted Subsidiaries, taken as a whole and (b) trade secrets and other confidential information that is competitively sensitive in the good faith and reasonable determination of the Issuer may be excluded from disclosures.
(b) The reports required pursuant to clauses (1), (2) and (3) of Section 4.03(a) will not be required to comply with (i) Section 302, Section 404 or Section 906 of the Xxxxxxxx-Xxxxx Act of 2002, (ii) related Items 307 and 308 of Regulation S-K promulgated by the SEC, (iii) Item 10(e) of Regulation S-K (with respect to any non-GAAP financial measures contained therein) or any comparable successor provision and (iv) Regulation S-X Rule 3-10.
(c) So long as any Notes are outstanding, the Issuer will also:
(1) issue a press release to an internationally recognized wire service no fewer than three Business Days prior to the delivery or posting of the annual and quarterly reports required by clauses (1) and (2) of Section 4.03(a) announcing the date on which such reports will be made available to the Holders and directing Holders, research analysts and prospective purchasers to contact the investor relations office of the Issuer to obtain copies of such reports;
(2) maintain a website (which may be password protected so long as the password is made promptly available by the Issuer to Holders, research analysts and prospective purchasers) to which all of the reports and press releases required by this Section 4.03 are posted; and
(3) host and participate in customary quarterly conference calls (which may be a single conference call together with investors holding other securities of the Issuer and/or its Restricted Subsidiaries and/or any direct or indirect parent of the Issuer) to discuss operating results and related matters. The Issuer shall issue a press release which will provide the date and time of any such call and will direct Holders, prospective purchasers and research analysts to contact the investor relations office of the Issuer to obtain access to the conference call; provided, that the Issuer shall not be required to undertake the actions set forth in clauses (1), (2) and (3) of this Section 4.03(c) at any time that the Issuer or any direct or indirect parent thereof is otherwise undertaking similar actions on behalf of, and making similar information available to, investors holding other securities of the Issuer or any direct or indirect parent thereof; provided, further, that such information described in the immediately preceding proviso is made available to the Holders.
(d) The Issuer will make available copies of all reports required by clauses (1) through (3) of Section 4.03(a), if and for so long as the Notes are listed on the Official List of the Irish Stock Exchange and admitted for trading on the Global Exchange Market thereof and the rules of the Irish Stock Exchange so require, at the offices of the listing agent or, to the extent required and in the manner permitted by such rules, post such reports on the official website of the Irish Stock Exchange.
(e) In addition, to the extent not satisfied by the foregoing, the Issuer will, for so long as any Notes are outstanding, furnish to Holders and to prospective purchasers, upon their request, the information required to be delivered pursuant to Rule 144A(d)(4144A (d)(4) under the Securities Act.
(ef) The Issuer may satisfy its obligations in this Section 4.03 with respect to financial information relating to the Issuer by furnishing financial information relating to a direct or indirect parent company; provided that, if and for so long as such parent company shall have Independent Assets or Operations (as defined below), the same is accompanied by consolidating information that explains in reasonable detail the differences between the information relating to such parent company, on the one hand, and the information relating to the Issuer and its Restricted Subsidiaries on a stand-alone basis, on the other hand. “Independent Assets or Operations” means, with respect to any such parent company, that such parent company’s total assets, revenues, income from continuing operations before income taxes and cash flows from operating activities (excluding in each case amounts related to its investment in the Issuer and the Restricted Subsidiaries), determined in accordance with GAAP and as shown on the most recent balance sheet of such parent company, is more than 3.0% of such parent company’s corresponding consolidated amount.
Appears in 1 contract
Reports and Other Information. (a) Notwithstanding that the Issuer may not be subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act or otherwise report on an annual and quarterly basis on forms provided for such annual and quarterly reporting pursuant to rules and regulations promulgated by the SEC, the Issuer shall furnish to will file with the SEC (and provide the Trustee and Holders of the Notes (holders with copies thereof, without exhibits) or post on its website (which may be password protected so long as the password is made promptly available by the Issuer cost to the Holderseach holder, research analysts and prospective purchasers upon request) no later than within 15 days after it files them with the dates specified below:SEC):
(1i) within 90 days after the end of each fiscal year (beginning with time period specified in the fiscal year ending after the Issue Date)SEC’s rules and regulations for non-accelerated filers, annual reports on Form 10-K (or any successor or comparable form) containing substantially all of the information required to be contained therein (or required in an Annual Report such successor or comparable form), except to the extent permitted to be excluded by the SEC;
(ii) within the time period specified in the SEC’s rules and regulations for non-accelerated filers, reports on Form 10-K Q (or any successor or comparable form) containing the information required to be contained therein (or required in such successor or comparable form), except to the extent permitted to be excluded by the SEC;
(iii) within the time period specified in the SEC’s rules and regulations, all information that would be required to be contained in filings with the SEC on Form 8-K, but, prior to the consummation of the Registered Exchange Offer, only under Items 1.01 (including furnishing any material debt agreements that would be required to be described in such Form 8-K), 1.02, 1.03, 2.01, 2.05, 2.06, 4.01, 4.02, 5.01 and 5.02(b) and (c) (other than with respect to information otherwise required or contemplated by Item 402 of Regulation S-K) as in effect on the Issue Date if the Issuer had been were required to file such reports; provided, however, that no such current report will be required to include as an exhibit, or to include a reporting company under summary of the terms of, any employment or compensatory arrangement agreement, plan or understanding between the Issuer (or any of its Subsidiaries) and any director, manager or executive officer of the Issuer (or any of its Subsidiaries); and
(iv) subject to the foregoing, any other information, documents and other reports which the Issuer would be required to file with the SEC if it were subject to Section 13 or 15(d) of the Exchange Act (but only to the extent similar information is included in the Offering Memorandum)Act; provided, however, that the Issuer shall not be required so obligated to provide file such reports with the information otherwise required to be presented by reporting companies under SEC if the Exchange Act pursuant to Part III of Form 10-K except for SEC does not permit such filing, in which event the Issuer will make available such information as to prospective purchasers of Notes in addition to providing such information to the Trustee and the holders, in each case within 15 days after the time the Issuer would be required to file such information with the SEC if it were subject to Section 13 or 15(d) of the Exchange Act, subject, in the case of any such information, certificates or reports provided prior to the effectiveness of the Exchange Offer Registration Statement or Shelf Registration Statement, to exceptions and exclusions consistent with the presentation of financial and other information in the Offering Memorandum (including with respect to any periodic reports provided prior to effectiveness of the Exchange Offer Registration Statement or Shelf Registration Statement, the omission of financial information required by Item 401 of Rule 3-10 or Rule 3-16 under Regulation S-K X promulgated by the SEC (other than the information required by subsections (c) and (g) of such item), Item 403(a) of Regulation S-K and Item 404 of Regulation S-K (assuming a transaction threshold of $2,500,000 rather than $120,000 and other than information with respect to employment and compensation arrangements and the information required by Item 404(bor any successor provision));
(2) within 45 days after . In addition to providing such information to the end of each Trustee, the Issuer shall make available to the holders, prospective investors, market makers affiliated with any initial purchaser of the first three fiscal quarters of each fiscal year, reports containing substantially all of Notes and securities analysts the information required to be contained in a Quarterly Report provided pursuant to the foregoing clauses (i), (ii) or (iii), by posting such information to its website or on Form 10-Q if IntraLinks or any comparable online data system or website. If the Issuer had been has designated any of its Subsidiaries as an Unrestricted Subsidiary and if any such Unrestricted Subsidiary or group of Unrestricted Subsidiaries, if taken together as one Subsidiary, would constitute a reporting company under the Exchange Act (but only to the extent similar information is included in the Offering Memorandum); and
(3) within the later of 15 days after the occurrence Significant Subsidiary of the specified event or within five (5) Business Days of Issuer, then the date on which an event would have been annual and quarterly information required to be reported on provided by clauses (i) and (ii) of this Section 4.02(a) shall include a Form 8-K (as in effect reasonably detailed presentation, either on the Issue Date), information pursuant to Items 1.01 (Entry into a Material Definitive Agreement), 1.02 (Termination face of a Material Definitive Agreement), 1.03 (Bankruptcy or Receivership), 2.01 (Completion of Acquisition or Disposition of Assets), 2.04 (Triggering Events that Accelerate or Increase a Direct Financial Obligation or an Obligation under an Off-Balance Sheet Arrangement), 2.06 (Material Impairment), 4.01 (Changes in Registrant’s Certifying Accountants), 4.02 (Non-Reliance on Previously Issued Financial Statements or a Related Audit Report or Completed Interim Review), 5.01 (Changes in Control of Registrant), 5.02(a), (b) or (c) (Departure of Directors or Principal Officers; Election of Directors; Appointment of Principal Officers; Compensation Arrangements of Certain Officers) (other than any information relating to compensation arrangements with any directors or officers) and 9.01(a) (Financial Statements and Exhibits) (but only with respect to historical the financial statements relating to transactions required to be reported pursuant to Item 2.01 and involving acquisitions of Persons that had revenues or in excess of $500,000,000 for the last four completed fiscal quarters prior to the consummation footnotes thereto, of the acquisition) of a Current Report on Form 8-K (as in effect of the Issue Date); provided, that (a) no such report or information will be required to be so furnished if the Issuer determines in good faith that such event is not material to the Holders or the business, assets, operations or financial condition and results of operations of the Issuer and its Restricted Subsidiaries separate from the financial condition and results of operations of such Unrestricted Subsidiaries, taken as a whole and (b) trade secrets and other confidential information that is competitively sensitive in the good faith and reasonable determination of the Issuer may be excluded from disclosures.
(b) The reports required pursuant to clauses (1)Notwithstanding the foregoing, (2) and (3) of Section 4.03(a) the Issuer will not be required to comply with (i) Section 302furnish any information, Section 404 certificates or Section 906 of the Xxxxxxxx-Xxxxx Act of 2002, (ii) related reports required by Items 307 and or 308 of Regulation S-K promulgated by prior to the SECeffectiveness of the Exchange Offer Registration Statement or Shelf Registration Statement, (iii) Item 10(e) of Regulation S-K (with respect to any non-GAAP financial measures contained therein) or any comparable successor provision and (iv) Regulation S-X Rule 3-10as applicable.
(c) So long as any Notes are outstanding, In the Issuer will alsoevent that:
(1i) issue a press release to an internationally recognized wire service no fewer than three Business Days prior to the delivery or posting rules and regulations of the annual and quarterly reports required by clauses (1) and (2) of Section 4.03(a) announcing the date on which such reports will be made available to the Holders and directing Holders, research analysts and prospective purchasers to contact the investor relations office of SEC permit the Issuer to obtain copies of such reports;
(2) maintain a website (which may be password protected so long as the password is made promptly available by the Issuer to Holders, research analysts and prospective purchasers) to which all of the reports and press releases required by this Section 4.03 are posted; and
(3) host and participate in customary quarterly conference calls (which may be a single conference call together with investors holding other securities of the Issuer and/or its Restricted Subsidiaries and/or any direct or indirect parent of the Issuer) Issuer to discuss operating results report at such parent entity’s level on a consolidated basis and related matters. The Issuer shall issue a press release which will provide the date and time of such parent entity is not engaged in any such call and will direct Holdersbusiness in any material respect other than incidental to its ownership, prospective purchasers and research analysts to contact the investor relations office directly or indirectly, of the Issuer to obtain access to capital stock of the conference call; providedIssuer, that the Issuer shall not be required to undertake the actions set forth in clauses or
(1), (2ii) and (3) of this Section 4.03(c) at any time that the Issuer or any direct or indirect parent thereof is otherwise undertaking similar actions on behalf of, and making similar information available to, investors holding other securities of the Issuer is or any becomes a Guarantor of the Notes, consolidated reporting at such parent entity’s level in a manner consistent with that described in this Section 4.02 for the Issuer will satisfy this Section 4.02, and the Issuer is permitted to satisfy its obligations in this Section 4.02 with respect to financial information relating to the Issuer by furnishing financial information relating to such direct or indirect parent; provided that such financial information is accompanied by consolidating information that explains in reasonable detail the differences between the information relating to such direct or indirect parent thereof; providedand any of its Subsidiaries other than the Issuer and its Subsidiaries, furtheron the one hand, that and the information relating to the Issuer, the Subsidiary Guarantors and the other Subsidiaries of the Issuer on a standalone basis, on the other hand. In addition, the Issuer will make such information described in the immediately preceding proviso is made available to the Holdersprospective investors upon request.
(d) In addition, to the extent not satisfied by the foregoing, the Issuer willshall, for so long as any Notes are outstandingremain outstanding during any period when it is not subject to Section 13 or 15(d) of the Exchange Act, or otherwise permitted to furnish the SEC with certain information pursuant to Rule 12g3-2(b) of the Exchange Act, furnish to Holders the holders of the Notes and to prospective purchasersinvestors, upon their request, the information required to be delivered pursuant to Rule 144A(d)(4) under the Securities Act.
(e) The Notwithstanding the foregoing, the Issuer may satisfy its obligations will be deemed to have furnished the reports referred to in this Section 4.03 4.02 to the Trustee and the holders if the Issuer has filed such reports with respect the SEC via the XXXXX filing system and such reports are publicly available. In addition, the requirements of this Section 4.02 shall be deemed satisfied prior to financial information the commencement of the exchange offer contemplated by the Registration Rights Agreement relating to the Issuer Notes or the effectiveness of the Shelf Registration Statement by furnishing financial information relating to a direct or indirect parent company; provided that(1) the filing with the SEC of the Exchange Offer Registration Statement and/or Shelf Registration Statement in accordance with the provisions of such Registration Rights Agreement, and any amendments thereto, if and for so long as such parent company shall have Independent Assets or Operations registration statement and/or amendments thereto are filed at times that otherwise satisfy the time requirements set forth in Section 4.02(a) and/or (as defined below), 2) the same is accompanied by consolidating information posting of reports that explains in reasonable detail would be required to be provided to the differences between the information relating to such parent company, holders on the one handIssuer’s website (or that of any of the Issuer’s parent companies).
(f) Delivery of such reports, information and documents to the Trustee pursuant to this Section 4.02 is for informational purposes only, and the Trustee’s receipt thereof shall not constitute constructive notice of any information relating contained therein or determinable from information contained therein, including the Issuer’s compliance with any of its covenants under this Indenture (as to which the Issuer and its Restricted Subsidiaries Trustee is entitled to rely exclusively on a stand-alone basis, on the other hand. “Independent Assets or Operations” means, with respect to any such parent company, that such parent company’s total assets, revenues, income from continuing operations before income taxes and cash flows from operating activities (excluding in each case amounts related to its investment in the Issuer and the Restricted SubsidiariesOfficers’ Certificates), determined in accordance with GAAP and as shown on the most recent balance sheet of such parent company, is more than 3.0% of such parent company’s corresponding consolidated amount.
Appears in 1 contract
Reports and Other Information. (a) Notwithstanding that the Issuer Parent may not be subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act or otherwise report on an annual and quarterly basis on forms provided for such annual and quarterly reporting pursuant to rules and regulations promulgated by the SEC, the Issuer Parent shall furnish to the Trustee and Holders of the Notes (without exhibits) or post on its website (which may be password protected so long as the password is made promptly available by the Issuer to the HoldersTrustee, research analysts and prospective purchasers upon request) no later than within 15 days after the dates time periods specified below:
(1i) within 90 days after the end of each fiscal year (beginning with the fiscal year ending after the Issue Date)year, annual reports on Form 10-K, or any successor or comparable form, containing substantially all of the information required to be contained therein, or required in an Annual Report on Form 10-K if the Issuer had been a reporting company under the Exchange Act (but only to the extent similar information is included in the Offering Memorandum); provided, that the Issuer shall not be required to provide the information otherwise required to be presented by reporting companies under the Exchange Act pursuant to Part III of Form 10-K except for such information as would be required by Item 401 of Regulation S-K (other than the information required by subsections (c) and (g) of such item), Item 403(a) of Regulation S-K and Item 404 of Regulation S-K (assuming a transaction threshold of $2,500,000 rather than $120,000 and other than information with respect to employment and compensation arrangements and the information required by Item 404(b))successor or comparable form;
(2ii) within 45 days after the end of each of the first three fiscal quarters of each fiscal year, reports on Form 10-Q containing substantially all of the quarterly information that would be required to be contained in a Quarterly Report on Form 10-Q if the Issuer had been a reporting company under the Exchange Act (but only to the extent similar information is included in the Offering Memorandum); andQ, or any successor or comparable form;
(3iii) within the later of 15 days after the occurrence of the specified event or within five (5) Business Days of the date on which an event would have been required to be reported on a Form 8-K (as in effect on or any successor or comparable form if Parent had been a reporting company under the Issue Date)Exchange Act, information pursuant to Items 1.01 (Entry into a Material Definitive Agreement), 1.02 (Termination of a Material Definitive Agreement), 1.03 (Bankruptcy or Receivership), 2.01 (Completion of Acquisition or Disposition of Assets), 2.04 (Triggering Events that Accelerate or Increase a Direct Financial Obligation or an Obligation under an Off-Balance Sheet Arrangement), 2.06 (Material Impairment), 4.01 (Changes in Registrant’s Certifying Accountants), 4.02 (Non-Reliance on Previously Issued Financial Statements or a Related Audit Report or Completed Interim Review), 5.01 (Changes in Control of Registrant), 5.02(a), (b) or (c) (Departure of Directors or Principal Officers; Election of Directors; Appointment of Principal Officers; Compensation Arrangements of Certain Officers) (other than any information current report relating to compensation arrangements with any directors or officers) and 9.01(a) (Financial Statements and Exhibits) (but only with respect to historical financial statements relating to transactions required to be reported pursuant to Item 2.01 and involving acquisitions of Persons that had revenues in excess of $500,000,000 for the last four completed fiscal quarters prior to the consummation of the acquisition) of a Current Report such event on Form 8-K or any successor or comparable form; in each case, in a manner that complies in all material respects with the requirements specified in such form (except as described above or below and subject, in effect the case of required financial information, to exceptions consistent with the Issue Datepresentation of financial information in the Offering Memorandum, to the extent filed within the times specified above); provided, that (a) no such report or information will be required to be so furnished if the Issuer determines in good faith that such event is not material to the Holders or the business, assets, operations or financial condition of the Issuer and its Restricted Subsidiaries, taken as a whole and (b) trade secrets and other confidential information that is competitively sensitive in the good faith and reasonable determination of the Issuer may be excluded from disclosures.
(b) The reports required pursuant to clauses (1), (2) and (3) of Section 4.03(a) will Parent shall not be required to comply with provide (i) Section 302, Section 404 or Section 906 of the Xxxxxxxx-Xxxxx Act of 2002segment reporting, (ii) related Items 307 and 308 the type of information contemplated by Rules 3-05, 3-09, 3-10, 3-16 or 4-08 of Regulation S-K promulgated X or any schedules required by the SECRegulation S-X, or in each case, any successor provisions, (iii) information required by Regulation G under the Exchange Act or Item 10(e) 10, Item 302, Item 402 or Item 601 of Regulation S-K (with respect to any non-GAAP financial measures contained therein) or any comparable successor provision and provision), (iv) Regulation SXBRL exhibits, (v) earnings per share information, (vi) information regarding executive compensation and related party disclosure related to SEC Release Nos. 33-X Rule 38732A, 34-10.
54302A and IC-27444A, and (cvii) So long as other information customarily excluded from an offering memorandum, including any Notes are outstanding, information that is not otherwise of the Issuer will also:
(1) issue a press release to an internationally recognized wire service no fewer than three Business Days prior type and form currently included in the offering memorandum relating to the delivery or posting of the annual and quarterly reports required by clauses (1) and (2) of Section 4.03(a) announcing the date on which such reports will be made available to the Holders and directing Holders, research analysts and prospective purchasers to contact the investor relations office of the Issuer to obtain copies of such reports;
(2) maintain a website (which may be password protected so long as the password is made promptly available by the Issuer to Holders, research analysts and prospective purchasers) to which all of the reports and press releases required by this Section 4.03 are posted; and
(3) host and participate in customary quarterly conference calls (which may be a single conference call together with investors holding other securities of the Issuer and/or its Restricted Subsidiaries and/or any direct or indirect parent of the Issuer) to discuss operating results and related mattersNotes. The Issuer shall issue a press release which will provide the date and time of any such call and will direct Holders, prospective purchasers and research analysts to contact the investor relations office of the Issuer to obtain access to the conference call; provided, that the Issuer shall not be required to undertake the actions set forth in clauses (1), (2) and (3) of this Section 4.03(c) at any time that the Issuer or any direct or indirect parent thereof is otherwise undertaking similar actions on behalf of, and making similar information available to, investors holding other securities of the Issuer or any direct or indirect parent thereof; provided, further, that such information described in the immediately preceding proviso is made available to the Holders.
(d) In addition, to the extent not satisfied by the foregoing, the Issuer willParent agrees that, for so long as any Notes are outstanding, it will furnish to Holders and to securities analysts and prospective purchasersinvestors, upon their request, the information required to be delivered pursuant to Rule 144A(d)(4) under the Securities Act.
(eb) The Issuer may satisfy Notwithstanding anything herein to the contrary, Parent will not be deemed to have failed to comply with any of its obligations hereunder for purposes of Section 6.01(a)(iii) hereof until 90 days after the receipt of the written notice delivered thereunder. To the extent any information is not provided within the time periods specified in this Section 4.03 and such information is subsequently provided, Parent will be deemed to have satisfied its obligations with respect thereto at such time and any Default with respect thereto shall be deemed to have been cured. Notwithstanding anything to the contrary set forth above, if Parent has furnished the Holders of Notes or filed with the SEC the reports described in the preceding paragraphs with respect to financial information relating a parent entity of Parent (“Parent Entity”) that owns 100% of the common equity interests of Parent and unconditionally guarantees payment of the Notes, Parent shall be deemed to the Issuer by furnishing financial information relating to a direct or indirect parent companybe in compliance with this section 4.03; provided that, if and for the financial information so long as such parent company shall have Independent Assets or Operations (as defined below)furnished relates to any Parent Entity, the same is accompanied by consolidating information that explains in reasonable detail (including select quantitative metrics) the differences between the information relating to such parent companyParent Entity or Parent Entities, on the one hand, and the information relating to the Issuer and its Restricted Subsidiaries on a stand-alone standalone basis, on the other hand. “Independent Assets or Operations” meansFor the avoidance of doubt, with respect the consolidating information referred to any such parent company, that such parent company’s total assets, revenues, income from continuing operations before income taxes and cash flows from operating activities (excluding in each case amounts related to its investment in the Issuer and proviso in the Restricted Subsidiaries), determined in accordance with GAAP and as shown on the most recent balance sheet of such parent company, is more than 3.0% of such parent company’s corresponding consolidated amountpreceding sentence need not be audited.
Appears in 1 contract
Reports and Other Information. (a) Notwithstanding that So long as any Notes are outstanding, unless the Issuer may not be is subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act or otherwise report on an annual and quarterly basis on forms provided for complies with such annual and quarterly reporting pursuant to rules and regulations promulgated by the SECrequirements, the Issuer shall furnish without cost to each Holder of Notes and file with the Trustee and Holders of the Notes (without exhibits) or post on its website (which may be password protected so long as the password is made promptly available by the Issuer to the Holders, research analysts and prospective purchasers upon request) no later than 15 days after the dates specified belowTrustee:
(1) within 90 days after the end of each fiscal year (beginning with the fiscal year ending after the Issue Date), annual reports containing substantially all of the Issuer, all annual financial information that would be required to be contained in an Annual Report a filing with the SEC on Form 10-K if the Issuer had been were required to file such form, including a reporting company under “Management’s Discussion and Analysis of Financial Condition and Results of Operations” consistent with the Exchange Act (but only to the extent similar information is included presentation thereof in the Offering Memorandum); provided, that Memorandum and a report on the Issuer shall not be required to provide annual financial statements by the information otherwise required to be presented by reporting companies under the Exchange Act pursuant to Part III of Form 10-K except for such information as would be required by Item 401 of Regulation S-K (other than the information required by subsections (c) and (g) of such item), Item 403(a) of Regulation S-K and Item 404 of Regulation S-K (assuming a transaction threshold of $2,500,000 rather than $120,000 and other than information with respect to employment and compensation arrangements and the information required by Item 404(b))Issuer’s certified independent accountants;
(2) within 45 days after the end of each of the first three fiscal quarters of each fiscal year, reports containing substantially all year of the Issuer, all quarterly financial information that would be required to be contained in a Quarterly Report filing with the SEC on Form 10-Q if the Issuer had been were required to file such form, including a reporting company under “Management’s Discussion and Analysis of Financial Condition and Results of Operations consistent with the Exchange Act (but only to the extent similar information is included presentation thereof in the Offering Memorandum)this offering memorandum”; and
(3) within the later of 15 days after five Business Days following the occurrence of the specified event or within five (5) Business Days any of the date on which an events set forth in Items 1.03, 2.01 (provided that the Issuer will not be required to provide any pro forma or other financial information with respect to any acquisition or disposition), 2.03, 2.04, 4.01, 4.02 and 5.02(a) – (d) of Form 8-K, a description in reasonable detail of such event if such information regarding such event would have been be required to be reported on filed by an SEC registrant in a Form 8-K (as in effect on K. Notwithstanding the Issue Date)foregoing, information pursuant to Items 1.01 (Entry into a Material Definitive Agreement), 1.02 (Termination of a Material Definitive Agreement), 1.03 (Bankruptcy or Receivership), 2.01 (Completion of Acquisition or Disposition of Assets), 2.04 (Triggering Events that Accelerate or Increase a Direct Financial Obligation or an Obligation under an Off-Balance Sheet Arrangement), 2.06 (Material Impairment), 4.01 (Changes in Registrant’s Certifying Accountants), 4.02 (Non-Reliance on Previously Issued Financial Statements or a Related Audit Report or Completed Interim Review), 5.01 (Changes in Control of Registrant), 5.02(a), (b) or (c) (Departure of Directors or Principal Officers; Election of Directors; Appointment of Principal Officers; Compensation Arrangements of Certain Officers) (other than any information relating to compensation arrangements with any directors or officers) and 9.01(a) (Financial Statements and Exhibits) (but only with respect to historical financial statements relating to transactions required to be reported pursuant to Item 2.01 and involving acquisitions of Persons that had revenues in excess of $500,000,000 for the last four completed fiscal quarters prior to the consummation of the acquisition) of a Current Report on Form 8-K (as in effect of the Issue Date); provided, that (a) no such report or information will be required to be so furnished if the Issuer determines in good faith that such event is not material to the Holders or the business, assets, operations or financial condition of the Issuer and its Restricted Subsidiaries, taken as a whole and (b) trade secrets and other confidential information that is competitively sensitive in the good faith and reasonable determination of the Issuer may be excluded from disclosures.
(b) The reports required pursuant to clauses (1), (2) and (3) of Section 4.03(a) will not shall be required to comply with (ia) Section sections 302, Section 906 and 404 or Section 906 of the Xxxxxxxx-Xxxxx Act of 20022002 and Items 000, 000 xxx 000 xx Xxxxxxxxxx X-X, (iix) related Items 307 and 308 of Regulation S-K promulgated by G under the SEC, (iii) Exchange Act or Item 10(e) of Regulation S-K (with respect to any “non-GAAP GAAP” financial measures information contained thereintherein or (c) Rule 3-10 or any comparable successor provision and (iv) Rule 3-16 of Regulation S-X Rule 3-10.
(c) So X. For so long as any Notes are remain outstanding, the Issuer will also:
(1) issue a press release to an internationally recognized wire service no fewer than three Business Days prior to the delivery or posting of the annual and quarterly reports required by clauses (1) and (2) of Section 4.03(a) announcing the date on which such reports will be made available shall furnish to the Holders and directing Holdersto securities analysts, research analysts market makers and prospective purchasers investors that certify that they are qualified institutional buyers, upon their request, the information described above as well as all information required to contact be delivered pursuant to Rule 144A(d)(4) under the investor relations office of the Securities Act. The Issuer to obtain copies of such reports;
(2) shall maintain a website (which may be password protected so long as the password is made promptly available by the Issuer to Holders, research analysts and prospective purchasers) to which all of the reports and press releases required by this Section 4.03 are posted; and
posted or shall, at its option, file such information with the SEC (3) host and participate in customary quarterly conference calls (which may be a single conference call together with investors holding other securities there being no obligation of the Issuer and/or to file any information with the SEC). If the Issuer elects to file such information with the SEC it shall upon the filing of such information, be deemed to have satisfied its Restricted Subsidiaries and/or obligations under this Section 4.03. It shall be understood that for such purposes, the filing by any direct or indirect parent of the Issuer of such information shall constitute a filing by the Issuer) . The Issuer shall also hold a quarterly conference call to discuss operating the financial results and related mattersof the Issuer with Holders, beginning with a discussion of the quarter ending October 31, 2010. Such conference call may be part of or separate from any conference call relating to the financial results of Toys “R” Us Inc. or any of its Subsidiaries. The conference call shall not be later than five Business Days from the date on which the financial information of the Issuer is filed or otherwise made available to Holders in accordance with this Indenture. No fewer than two days prior to the conference call, the Issuer shall issue a press release which will provide to the appropriate wire services announcing the time, date and time access details of any such call and will direct Holders, prospective purchasers and research analysts to contact the investor relations office of the Issuer to obtain access to the conference call; provided, that the Issuer shall not be required to undertake the actions set forth in clauses (1), (2) and (3) of this Section 4.03(c) . If at any time that the Issuer or any direct or indirect parent thereof is otherwise undertaking similar actions on behalf of, and making similar information available to, investors holding other securities of the Issuer or becomes a Guarantor (there being no obligation of any direct or indirect such parent thereof; provided, further, that such information described in the immediately preceding proviso is made available to the Holders.
(d) In addition, to the extent not satisfied by the foregoingdo so), the Issuer willreports, for so long as any Notes are outstanding, furnish to Holders information and to prospective purchasers, upon their request, the information other documents required to be delivered furnished to Holders of the Notes pursuant to Rule 144A(d)(4) under the Securities Act.
(e) The Issuer may satisfy its obligations in this Section 4.03 with respect to financial information relating to may, at the Issuer option of the Issuer, be furnished by furnishing financial information relating to a direct or indirect and be those of such parent companyrather than the Issuer; provided that, if and for so long as such parent company shall have Independent Assets or Operations (as defined below), that the same is accompanied by consolidating information that explains in reasonable detail the differences between the information relating to such parent companyparent, on the one hand, and the information relating to the Issuer and its Restricted Subsidiaries on a stand-alone basisSubsidiaries, on the other hand. “Independent Assets or Operations” means, with respect to any such parent company, that such parent company’s total assets, revenues, income from continuing operations before income taxes and cash flows from operating activities (excluding in each case amounts related to its investment in the Issuer and the Restricted Subsidiaries), determined in accordance with GAAP and as shown on the most recent balance sheet of such parent company, is more than 3.0% of such parent company’s corresponding consolidated amount.
Appears in 1 contract
Samples: Indenture (Toys R Us Inc)
Reports and Other Information. (a) Notwithstanding that the Issuer may Whether or not be Parent is subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act or otherwise report on an annual and quarterly basis on forms provided for such annual and quarterly reporting pursuant to rules and regulations promulgated by the SECAct, the Issuer so long as any Notes are outstanding, Parent shall furnish to the Trustee and Holders of the Notes (without exhibits) or post on its website (which may be password protected so long as the password is made promptly available by the Issuer to the Holders, research analysts and prospective purchasers upon request) no later than 15 days after the dates specified below:
Trustee: (1) within 90 days after the end of each fiscal year (beginning with the fiscal year ending after the Issue Date)end of Parent, annual reports containing substantially all of the financial information that would be required to be contained in an Annual Report annual report on Form 10-K if K, or any successor or comparable form, filed with the Issuer had been SEC, including a reporting company under "Management's Discussion and Analysis of Financial Condition and Results of Operations" and a report on the Exchange Act (but only to the extent similar information is included in the Offering Memorandum)annual financial statements of Parent's independent registered public accounting firm; provided, that the Issuer shall not be required to provide the information otherwise required to be presented by reporting companies under the Exchange Act pursuant to Part III of Form 10-K except for such information as would be required by Item 401 of Regulation S-K (other than the information required by subsections (c) and (g) of such item), Item 403(a) of Regulation S-K and Item 404 of Regulation S-K (assuming a transaction threshold of $2,500,000 rather than $120,000 and other than information with respect to employment and compensation arrangements and the information required by Item 404(b));
(2) within 45 days after the end of each of the first three fiscal quarters of each fiscal yearyear of Parent, reports containing substantially all of the financial information that would be required to be contained in a Quarterly Report quarterly report on Form 10-Q if Q, or any successor or comparable form, filed with the Issuer had been a reporting company under the Exchange Act (but only to the extent similar information is included in the Offering Memorandum)SEC; and
and (3) within the later of 15 days ten Business Days after the occurrence of such an event, the specified event or within five (5) Business Days of the date on which an event information that would have been be required to be reported on a Form 8-K (as contained in effect on filings with the Issue Date), information pursuant to Items 1.01 (Entry into a Material Definitive Agreement), 1.02 (Termination of a Material Definitive Agreement), 1.03 (Bankruptcy or Receivership), 2.01 (Completion of Acquisition or Disposition of Assets), 2.04 (Triggering Events that Accelerate or Increase a Direct Financial Obligation or an Obligation under an Off-Balance Sheet Arrangement), 2.06 (Material Impairment), 4.01 (Changes in Registrant’s Certifying Accountants), 4.02 (Non-Reliance on Previously Issued Financial Statements or a Related Audit Report or Completed Interim Review), 5.01 (Changes in Control of Registrant), 5.02(a), (b) or (c) (Departure of Directors or Principal Officers; Election of Directors; Appointment of Principal Officers; Compensation Arrangements of Certain Officers) (other than any information relating to compensation arrangements with any directors or officers) and 9.01(a) (Financial Statements and Exhibits) (but only with respect to historical financial statements relating to transactions required to be reported pursuant to Item 2.01 and involving acquisitions of Persons that had revenues in excess of $500,000,000 for the last four completed fiscal quarters prior to the consummation of the acquisition) of a Current Report SEC on Form 8-K under Items 1.01, 1.02, 1.03, 2.01, 2.05, 2.06, 4.01, 4.02, 5.01 and 5.02(b), 5.02(c) and 5.02(d) (as in effect other than with respect to information required or contemplated by Item 402 of the Issue Date)Regulation S-K) if Parent were required to file such reports; provided, however, that (a) no such current report or information will shall be required to be so furnished if the Issuer Parent determines in its good faith judgment that such event is not material to the Holders or the business, assets, operations operations, financial position or financial condition prospects of the Issuer Parent and its Restricted Subsidiaries, taken as a whole and (b) trade secrets and whole; provided further that the foregoing shall not obligate Parent to make available copies of any agreements, financial statements or other confidential information items that is competitively sensitive in the good faith and reasonable determination of the Issuer may would be excluded from disclosures.required to be filed as exhibits to a current report on Form 8-K.
(b) The reports required pursuant to clauses (1)Notwithstanding the foregoing, (2) and (3) of Section 4.03(a) Parent will not be required to comply with furnish any information, certificates or reports required by (i) Section 302, Section 404 or Section 906 of the Xxxxxxxx-Xxxxx Act of 2002, or related Items 307 or 308 of Regulation S-K, (ii) related Items 307 and 308 Regulation G or Item 10(e) of Regulation S-K promulgated by the SEC, (iii) Item 10(e) of Regulation S-K (SEC with respect to any non-GAAP generally accepted accounting principles financial measures contained thereintherein or (iii) or any comparable successor provision Rule 3-09 and (iv) 3-10 of Regulation S-X Rule 3-10.X.
(c) So long If Parent is not subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act, Parent shall deliver such information and such reports to any Holder of a Note and, upon request, to any beneficial owner of the Notes, in each case by posting such information on password-protected website which will require a confidentiality acknowledgment, and will make such information readily available to any prospective investor in the Notes that certifies that it is an eligible purchaser of the Notes, any securities analyst (to the extent providing analysis of investment in the Notes) or any market maker in the Notes, in each case who (i) agrees to treat such information as confidential or (ii) accesses such information on such password-protected website which will require a confidentiality acknowledgment; provided that Parent shall post such information thereon and make readily available any Notes are outstandingpassword or other login information to any such prospective investor in the Notes, securities analyst (to the Issuer extent providing analysis of investment in the Notes) or market maker in the Notes. Parent will also:
hold a quarterly conference call for all Holders and securities analysts (1to the extent providing analysis of investment in the Notes) issue a press release to an internationally recognized wire service no fewer than three discuss such financial information within ten Business Days prior to the delivery after distribution of such financial information or posting otherwise providing substantially comparable availability of the annual and quarterly reports required by clauses (1) and (2) of Section 4.03(a) announcing the date on which such reports will (as determined by Parent in good faith) (it being understood that, without limitation, making such reports available on Bloomberg or another private electronic information service shall constitute substantially comparable availability); it being understood that any customary quarterly earnings calls with public equity holders shall be made available deemed to the Holders and directing Holders, research analysts and prospective purchasers to contact the investor relations office of the Issuer to obtain copies of constitute such reports;
(2) maintain a website (which may be password protected so long as the password is made promptly available by the Issuer to Holders, research analysts and prospective purchasers) to which all of the reports and press releases required by this Section 4.03 are posted; and
(3) host and participate in customary quarterly conference calls (which may be a single conference call together with investors holding other for all Holders and such securities of the Issuer and/or its Restricted Subsidiaries and/or any direct or indirect parent of the Issuer) to discuss operating results and related matters. The Issuer shall issue a press release which will provide the date and time of any such call and will direct Holders, prospective purchasers and research analysts to contact the investor relations office of the Issuer to obtain access to the conference callanalysts; provided, however, that if Parent is subject to the Issuer shall reporting requirements of Section 13 or 15(d) of the Exchange Act and has timely filed all applicable periodic reports required thereby, Parent will not be required to undertake the actions set forth hold such a quarterly conference call so long as Parent makes one or more Officers available during normal business hours to answer any reasonable questions of Holders and security analysts in clauses (1), (2) and (3) respect of this Section 4.03(c) at any time that the Issuer or any direct or indirect parent thereof is otherwise undertaking similar actions on behalf of, and making similar information available to, investors holding other securities of the Issuer or any direct or indirect parent thereof; provided, further, that such information described in the immediately preceding proviso is made available to the Holdersfinancial information.
(d) In addition, to To the extent not satisfied by the foregoing, the Issuer will, for so long as any Notes are outstanding, Parent will also furnish to Holders Holders, securities analysts (to the extent providing analysis of investment in the Notes) and to prospective purchasers, investors in the Notes upon their request, request the information required to be delivered pursuant to Rule 144A(d)(4) under the Securities Act, so long as the Notes are not freely transferable under the Securities Act.
(e) The Issuer may satisfy If Parent has designated any of its obligations in this Section 4.03 with respect to financial information relating to the Issuer by furnishing financial information relating to a direct Subsidiaries as an Unrestricted Subsidiary and if any such Unrestricted Subsidiary or indirect parent company; provided thatgroup of Unrestricted Subsidiaries, if taken together as one Subsidiary, would constitute a Significant Subsidiary of Parent, then the annual and for so long as such parent company quarterly information required by clauses (a)(1) and (2) of Section 4.02 shall have Independent Assets or Operations (as defined below)include a reasonably detailed presentation, the same is accompanied by consolidating information that explains in reasonable detail the differences between the information relating to such parent company, either on the one handface of the financial statements or in the footnotes thereto, of the financial condition and the information relating to results of operations of the Issuer and its Restricted Subsidiaries on a stand-alone basis, on separate from the other handfinancial condition and results of operations of such Unrestricted Subsidiaries.
(f) Parent will be deemed to have furnished the reports referred to in Section 4.02(a) if Parent has filed reports containing such information with the SEC. “Independent Assets or Operations” means, with respect The Trustee shall have no duty to monitor whether any such parent companyfilings have been made.
(g) Delivery of such reports, that such parent company’s total assets, revenues, income from continuing operations before income taxes information and cash flows from operating activities (excluding in each case amounts related documents to its investment in the Issuer Trustee is for informational purposes only and the Restricted Subsidiaries), determined in accordance with GAAP and as shown on the most recent balance sheet Trustee's receipt of such parent companyshall not constitute actual or constructive knowledge or notice of any information contained therein or determinable from information contained therein, including any default or the Issuer's compliance with any of its covenants hereunder (as to which the Trustee is more than 3.0% of such parent company’s corresponding consolidated amountentitled to rely exclusively on an Officer's Certificate).
Appears in 1 contract
Samples: Indenture (Kronos Worldwide Inc)
Reports and Other Information. (a) Notwithstanding that the Issuer may not be subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act or otherwise report on an annual and quarterly basis on forms provided for such annual and quarterly reporting pursuant to rules and regulations promulgated by the SECSo long as any Notes are outstanding, the Issuer shall will furnish to the Trustee and Holders of the Notes (without exhibits) or post on its website (which may be password protected so long as the password is made promptly available by the Issuer to the Holders, research analysts and prospective purchasers upon request) no later than 15 days after the dates specified below:
(1) within 120 days after the end of the initial fiscal year of the Issuer ending after the Issue Date, then within 90 days after the end of each subsequent fiscal year (beginning with the fiscal year ending after the Issue Date), annual reports containing substantially all of the information Issuer, all annual financial statements of the Issuer substantially in the form that would be required to be contained in an Annual Report a filing with the SEC on Form 10-K if the Issuer had been a reporting company under the Exchange Act (but only to the extent similar information is was included in the Offering MemorandumCircular); provided, that in accordance with the Issuer shall not be required to provide the information otherwise required to be presented by reporting companies under the Exchange Act pursuant to Part III requirements of such Form 10-K except for as of the Issue Date, if the Issuer were required to file such information as would be required form, together with a report thereon by Item 401 the Issuer’s independent registered public accounting firm, and a “Management’s Discussion and Analysis of Regulation S-K (other than the information required by subsections (c) Financial Condition and (g) Results of such item), Item 403(a) of Regulation S-K and Item 404 of Regulation S-K (assuming a transaction threshold of $2,500,000 rather than $120,000 and other than information with respect to employment and compensation arrangements and the information required by Item 404(b))Operations;”
(2) within 45 days after the end of each fiscal quarter of the Issuer ending after the Issue Date, all quarterly financial statements of the Issuer substantially in the form that would be required to be contained in a filing with the SEC on Form 10-Q (but only to the extent similar information was included in the Offering Circular), in accordance with the requirements of such Form 10-Q as of the Issue Date (solely with respect to the first three fiscal quarters of each fiscal year), reports if the Issuer were required to file such form, and a “Management’s Discussion and Analysis of Financial Condition and Results of Operations;” and
(3) promptly from time to time after the occurrence of an event required to be therein reported, such other information containing substantially all of the same information that would be required to be contained in a Quarterly Report filings with the SEC on Form 108-Q if K, in accordance with the Issuer had been a reporting company under the Exchange Act (but only to the extent similar information is included in the Offering Memorandum); and
(3) within the later requirements of 15 days after the occurrence of the specified event or within five (5) Business Days of the date on which an event would have been required to be reported on a such Form 8-K (as in effect on of the Issue Date), information pursuant to Items 1.01 (Entry into a Material Definitive Agreement), 1.02 (Termination of a Material Definitive Agreement), under Items: 1.03 (Bankruptcy or Receivership), ; 2.01 (Completion of Acquisition or Disposition of Assets), ; 2.03 (Creation of a Direct Financial Obligation or an Obligations under an Off-Balance Sheet Arrangement); 2.04 (Triggering Events that Accelerate or Increase a Direct Financial Obligation or an Obligation under an Off-Balance Sheet Arrangement), 2.06 (Material Impairment), 4.01 (Changes in Registrant’s Certifying Accountants), ; 4.02 (Non-Reliance on Previously Issued Financial Statements or a Related Audit Report or Completed Interim Review), ; 5.01 (Changes in Control of Registrant), 5.02(a; 5.02
(a) (1) (Resignation of Director due to Disagreement with Registrant); 5.02(c)(1) (Name and Position of Newly Appointed Officer and Date of Appointment); and 5.03(b) (Changes in Fiscal Year), if the Issuer were required to file such reports;
(bi) no such reports referenced under clause (3) above will be required to include as an exhibit or summary of terms of, any employment or compensatory arrangement agreement, plan or understanding between the Issuer (or any of its Subsidiaries or any Parent Company) and any director, manager or executive officer, of the Issuer (or any of its Subsidiaries or any Parent Company);
(ii) in no event will such reports be required to comply with Section 302, Section 404 or Section 906 of the Xxxxxxxx-Xxxxx Act of 2002, or related Items 307 and 308 of Regulation S-K promulgated by the SEC;
(iii) in no event will such reports be required to comply with Item 302 of Regulation S-K promulgated by the SEC;
(iv) in no event will such reports be required to comply with Rule 3-10 of Regulation S-X promulgated by the SEC or contain separate financial statements for the Issuer, the Co-Issuer, the Guarantors or other Subsidiaries the shares of which may be pledged to secure the Notes or any Guarantee that would be required under (x) Section 3-09 of Regulation S-X or (cy) Section 3-16 of Regulation S-X, respectively, promulgated by the SEC (Departure except for customary qualitative capsule financial statements and financial information);
(v) in no event will such reports be required to comply with Regulation G under the Exchange Act or Item 10(e) of Directors or Principal Officers; Election of Directors; Appointment of Principal Officers; Compensation Arrangements of Certain Officers) (other than any information relating to compensation arrangements with any directors or officers) and 9.01(a) (Financial Statements and Exhibits) (but only Regulation S-K promulgated by the SEC with respect to historical any non-GAAP financial statements relating to transactions required to be reported pursuant to Item 2.01 and involving acquisitions of Persons that had revenues in excess of $500,000,000 for the last four completed fiscal quarters prior to the consummation of the acquisition) of a Current Report on Form 8-K measures contained therein;
(as in effect of the Issue Date); provided, that (avi) no such report or information reports referenced under clause (3) above will be required to be so furnished if the Issuer determines in its good faith judgment that such event is not material to the Holders or the business, assets, operations or financial condition position of the Issuer and its Restricted Subsidiaries, taken as a whole and whole;
(bvii) in no event will such reports be required to comply with Item 601 of Regulation S-K promulgated by the SEC (with respect to exhibits) or, with respect to reports referenced in clause (3) above, to include as an exhibit copies of any agreements, financial statements or other items that would be required to be filed as exhibits to a current report on Form 8-K, except for agreements evidencing material Indebtedness (excluding any schedules thereto);
(viii) trade secrets and other confidential information that is competitively sensitive in the good faith and reasonable determination of the Issuer may be excluded from any disclosures.; and
(bix) The reports required pursuant to clauses (1), (2) and (3) of Section 4.03(a) such information will not be required to comply with (i) Section 302, Section 404 or Section 906 of the Xxxxxxxx-Xxxxx Act of 2002, (ii) related Items 307 and 308 of Regulation S-K promulgated by the SEC, (iii) Item 10(e) of Regulation S-K (with respect to contain any non-GAAP financial measures contained therein) or any comparable successor provision and (iv) Regulation S-X Rule 3-10“segment reporting.”
(c) So long as any Notes are outstanding, the Issuer will also:
(1) issue a press release to an internationally recognized wire service no fewer than three Business Days prior to the delivery or posting of the annual and quarterly reports required by clauses (1) and (2) of Section 4.03(a) announcing the date on which such reports will be made available to the Holders and directing Holders, research analysts and prospective purchasers to contact the investor relations office of the Issuer to obtain copies of such reports;
(2) maintain a website (which may be password protected so long as the password is made promptly available by the Issuer to Holders, research analysts and prospective purchasers) to which all of the reports and press releases required by this Section 4.03 are posted; and
(3) host and participate in customary quarterly conference calls (which may be a single conference call together with investors holding other securities of the Issuer and/or its Restricted Subsidiaries and/or any direct or indirect parent of the Issuer) to discuss operating results and related matters. The Issuer shall issue a press release which will provide the date and time of any such call and will direct Holders, prospective purchasers and research analysts to contact the investor relations office of the Issuer to obtain access to the conference call; provided, that the Issuer shall not be required to undertake the actions set forth in clauses (1), (2) and (3) of this Section 4.03(c) at any time that the Issuer or any direct or indirect parent thereof is otherwise undertaking similar actions on behalf of, and making similar information available to, investors holding other securities of the Issuer or any direct or indirect parent thereof; provided, further, that such information described in the immediately preceding proviso is made available to the Holders.
(d) In addition, to the extent not satisfied by the foregoing, the Issuer will, for so long as any Notes are outstanding, furnish to Holders and to prospective purchasers, upon their request, the information required to be delivered pursuant to Rule 144A(d)(4) under the Securities Act.
(eb) The Issuer may satisfy its obligations in this Section 4.03 with respect to financial information relating to the Issuer by furnishing financial information relating to a direct or indirect parent companyany Parent Company; provided that, that if and for so long as such parent company shall have Parent Company has Independent Assets or Operations (as defined below)Operations, the same is accompanied by consolidating information (which need not be audited) that explains in reasonable detail the differences between the information relating to such parent companyParent Company, on the one hand, and the information relating to the Issuer and its Restricted Subsidiaries on a stand-alone basis, on the other hand. .
(c) In addition, notwithstanding the foregoing, the financial statements, information, auditors’ reports and other documents and information required to be provided pursuant to Section 4.03(a) may be, rather than those of the Issuer, those of (1) any predecessor or successor of the Issuer, (2) any Wholly-Owned Restricted Subsidiary of the Issuer that, together with its consolidated Subsidiaries, constitutes substantially all of the assets of the Issuer and its consolidated Subsidiaries (“Independent Assets Qualified Reporting Subsidiary”) or Operations” means(3) any direct or indirect parent of the Issuer; provided that, if the financial information required to be provided pursuant to Section 4.03(a) relates to such Qualified Reporting Subsidiary of the Issuer or such Parent Company, such financial information will be accompanied by consolidating information (which need not be audited), that explains in reasonable detail (in the good faith judgment of the Issuer) the differences between the information relating to such Qualified Reporting Subsidiary or such Parent Company (as the case may be), on the one hand, and the information relating to the Issuer and its Subsidiaries on a stand-alone basis, on the other hand.
(d) Notwithstanding anything herein to the contrary, the Issuer will not be deemed to have failed to comply with respect any of its obligations under this Section 4.03 for purposes of Section 6.01(3) hereof until 45 days after the date any report is due under this Section 4.03.
(e) The Issuer will make available such information and such reports to any Holder and, upon request, to any beneficial owner of the Notes, in each case by posting such information on its website, on Intralinks, SyndTrak, ClearPar or any comparable password-protected online data system that will require a confidentiality acknowledgment, and will make such information readily available to any Holder, any bona fide prospective investor in the Notes, any bona fide securities analyst (to the extent providing analysis of investment in the Notes to investors and prospective investors therein) or any bona fide market maker in the Notes who agrees to treat such information as confidential or accesses such information on Intralinks, SyndTrak, ClearPar or any comparable password-protected online data system that will require a confidentiality acknowledgment; provided that the Issuer may deny access to any competitively-sensitive information otherwise to be provided pursuant to this covenant to any such parent Holder, prospective investor, security analyst or market maker that is a competitor of the Issuer and its Subsidiaries, or an affiliate of such a competitor (other than any affiliate that is a bona fide bank debt fund, distressed asset fund, hedge fund, mutual fund, insurance company, financial institution or investment vehicle engaged in the business of investing in, acquiring or trading commercial loans, bonds and similar extensions of credit in the ordinary course (and not organized primarily for the purpose of making equity investments)) to the extent that the Issuer determines in good faith that the provision of such information to such Person would be competitively harmful to the Issuer and its Subsidiaries; and provided, further that such parent company’s total assetsHolders, revenuesprospective investors, income from continuing operations before income taxes security analysts or market makers will agree to (1) treat all such reports (and cash flows from operating activities the information contained therein) and information as confidential, (excluding in each case amounts related to its 2) not use such reports and the information contained therein for any purpose other than their investment or potential investment in the Issuer Notes and (3) not publicly disclose or distribute any such reports (and the Restricted Subsidiariesinformation contained therein).
(f) In addition, determined to the extent not satisfied by the reports required under this Section 4.03 or otherwise made publicly-available by the Issuer, the Issuer will furnish to Holders thereof and prospective investors in accordance the Notes, upon their request, the information, if any, required to be delivered pursuant to Rule 144A(d)(4) (or any successor provision) under the Securities Act.
(g) The Issuer will be deemed to have furnished the reports in Sections 4.03(a) if the Issuer or any Parent Company has filed reports containing such information with GAAP and as shown on the most recent balance sheet of such parent company, is more than 3.0% of such parent company’s corresponding consolidated amountSEC.
Appears in 1 contract
Samples: Indenture (United States Steel Corp)
Reports and Other Information. (a) Notwithstanding that Whether or not the Issuer may not be Company is subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act or otherwise report on an annual Act, so long as any Securities are outstanding, from and quarterly basis on forms provided for such annual and quarterly reporting pursuant to rules and regulations promulgated by after the SEC, Effective Date the Issuer Company shall furnish to the Trustee Holders and Holders of the Notes Trustee: (without exhibitsi)(x) or post on its website (which may be password protected so long as the password is made promptly available by the Issuer to the Holders, research analysts all annual and prospective purchasers upon request) no later than 15 days after the dates specified below:
(1) within 90 days after the end of each fiscal year (beginning with the fiscal year ending after the Issue Date), annual reports containing substantially all of the information required to be contained in an Annual Report on Form 10-K if the Issuer had been a reporting company under the Exchange Act (but only to the extent similar information is included in the Offering Memorandum); provided, quarterly financial statements that the Issuer shall not be required to provide the information otherwise required to be presented by reporting companies under the Exchange Act pursuant to Part III of Form 10-K except for such information as would be required by Item 401 of Regulation S-K (other than the information required by subsections (c) and (g) of such item), Item 403(a) of Regulation S-K and Item 404 of Regulation S-K (assuming a transaction threshold of $2,500,000 rather than $120,000 and other than information with respect to employment and compensation arrangements and the information required by Item 404(b));
(2) within 45 days after the end of each of the first three fiscal quarters of each fiscal year, reports containing substantially all of the information required to be contained in a Quarterly Report filing with the SEC on Form Forms 10-K and 10-Q of the Company, if the Issuer had been Company were required to file such forms, plus a reporting company under the Exchange Act “Management’s Discussion and Analysis of Financial Condition and Results of Operations”; (but only y) with respect to the extent similar annual and quarterly information, a presentation of Adjusted EBITDA of the Company (the foregoing financial information is to be prepared on a basis substantially consistent with the presentation of non¬GAAP financial measures included in the Offering MemorandumCircular); and
and (3z) within with respect to the later of 15 days after annual financial statements only, a report on the occurrence of annual financial statements by the specified event Company’s independent registered public accounting firm; it being understood that the Company shall not be required to include, except as otherwise provided in this Section 4.02(a), any other adjustment that would be required by any SEC rule, regulation or within five interpretation, including but not limited to any “push down” accounting adjustment; and (5ii) Business Days of the date on which an event all information that would have been be required to be reported contained in filings with the SEC on a Form 8-K under Items 1.0 1, 1.02, 1.03, 2.01, 2.03, 2.04, 2.05, 2.06, 4.01, 4.02, 5.01 and 5.02(b) and (c)(1) (other than with respect to information otherwise required or contemplated by Item 402 of Regulation S-K) (but excluding, for the avoidance of doubt, financial statements and exhibits that would be required pursuant to Item 9.01 of Form 8-K other than financial statements and pro forma financial information required pursuant to clauses (a) and (b) of Item 9.01 of Form 8-K (as in effect on the Issue Date), information pursuant to Items 1.01 (Entry into a Material Definitive Agreement), 1.02 (Termination of a Material Definitive Agreement), 1.03 (Bankruptcy or Receivership), 2.01 (Completion of Acquisition or Disposition of Assets), 2.04 (Triggering Events that Accelerate or Increase a Direct Financial Obligation or an Obligation under an Off-Balance Sheet Arrangement), 2.06 (Material Impairment), 4.01 (Changes in Registrant’s Certifying Accountants), 4.02 (Non-Reliance on Previously Issued Financial Statements or a Related Audit Report or Completed Interim Review), 5.01 (Changes in Control of Registrant), 5.02(a), (b) or (c) (Departure of Directors or Principal Officers; Election of Directors; Appointment of Principal Officers; Compensation Arrangements of Certain Officers) (other than any information relating to compensation arrangements with any directors or officers) and 9.01(a) (Financial Statements and Exhibits) (but only with respect to historical financial statements each case relating to transactions required to be reported pursuant to Item 2.01 and involving acquisitions of Persons that had revenues in excess of $500,000,000 for the last four completed fiscal quarters prior to the consummation of the acquisition) of a Current Report on Form 8-K K) to the extent available (as determined by the Company in effect of good faith, which determination shall be conclusive)) if the Issue Date)Company had been a reporting company under the Exchange Act; provided, however, that (a) no such current report or information will be required to be so furnished if the Issuer Company determines in its good faith judgment that such event is not material to the Holders or the business, assets, operations operations, financial position or financial condition prospects of the Issuer Company and its Restricted Subsidiaries, taken as a whole whole, and (b) trade secrets and other confidential information that is competitively sensitive the Company may omit from such disclosure any terms of such event if the Company determines in the its good faith and reasonable determination judgment that disclosure of such terms would otherwise cause material competitive harm to the business, assets, operations, financial position or prospects of the Issuer may Company and its Restricted Subsidiaries, taken as a whole; provided, that such non-disclosure shall be excluded from disclosureslimited only to those specific provisions that would cause material competitive harm and not the occurrence of the event itself; provided, further, that no such current report will be required to include a summary of the terms of any employment or compensatory arrangement agreement, plan or understanding between the Company (or any of its Subsidiaries) and any director, manager or executive officer of the Company (or any of its Subsidiaries).
(b) All such annual reports shall be furnished within 90 days after the end of the fiscal year to which they relate, and all such quarterly reports shall be furnished within 45 days after the end of the fiscal quarter to which they relate; provided that the annual report for the fiscal year ending December 31, 2014 shall be furnished within 135 days after the end of the fiscal year to which it relates and the quarterly report for the first fiscal quarter ending after the Effective Date (commencing with the quarter ended March 31, 2015) shall be furnished within 75 days after the end of the fiscal quarter to which it relates. All such current reports shall be furnished within the time periods specified in the SEC’s rules and regulations for reporting companies under the Exchange Act. The reports required pursuant Company agrees to clauses use its commercially reasonable efforts to obtain internal financial accounting data for the Eco Services business for the quarter ended September 30, 2014 from Solvay in whatever format Solvay is able to provide no later than 75 days after the end of such quarter. If, and only if, Solvay provides such information to the Company, such data shall be provided to the Holders.
(1)c) Notwithstanding the foregoing, (2a) and (3) of Section 4.03(a) the Company will not be required to comply with furnish any information, certificates or reports required by (i) Section 302, Section 404 or Section 906 of the Xxxxxxxx-Xxxxx Act of 2002, or related Items 307 or 308 of Regulation S-K, (ii) related Items 307 and 308 Regulation G or Item 10(e) of Regulation S-K promulgated by the SEC, SEC with respect to any non-generally accepted accounting principles financial measures contained therein or (iii) Rule 3-05, 3-09 and 3-10 of Regulation S-X, (b) such reports shall not be required to present compensation or beneficial ownership information and (c) such reports shall not be required to include any exhibits that would have been required to be filed pursuant to Item 10(e) 601 of Regulation S-K (with respect to any non-GAAP financial measures contained therein) or any comparable successor provision and (iv) Regulation S-X Rule 3-10.
except this clause (c) So long as shall not apply to any Notes are outstandingannual, the Issuer will also:
(1) issue a press release quarterly or pro forma financial statements otherwise expressly required to an internationally recognized wire service no fewer than three Business Days prior to the delivery or posting of the annual and quarterly reports required by clauses (1) and (2) of Section 4.03(a) announcing the date on which such reports will be made available to the Holders and directing Holders, research analysts and prospective purchasers to contact the investor relations office of the Issuer to obtain copies of such reports;
(2) maintain a website (which may be password protected so long as the password is made promptly available by the Issuer to Holders, research analysts and prospective purchasers) to which all of the reports and press releases required by provided under this Section 4.03 are posted; and
(3) host and participate in customary quarterly conference calls (which may be a single conference call together with investors holding other securities of the Issuer and/or its Restricted Subsidiaries and/or any direct or indirect parent of the Issuer) to discuss operating results and related matters. The Issuer shall issue a press release which will provide the date and time of any such call and will direct Holders, prospective purchasers and research analysts to contact the investor relations office of the Issuer to obtain access to the conference call; provided, that the Issuer shall not be required to undertake the actions set forth in clauses (14.02), (2) and (3) of this Section 4.03(c) at any time that the Issuer or any direct or indirect parent thereof is otherwise undertaking similar actions on behalf of, and making similar information available to, investors holding other securities of the Issuer or any direct or indirect parent thereof; provided, further, that such information described in the immediately preceding proviso is made available to the Holders.
(d) In additionThe Company shall (x) deliver such information and such reports (as well as the details regarding the conference call described below) to any Holder and, upon request, to any beneficial owner of the Securities, in each case by posting such information on Intralinks or any comparable password-protected online data system which will require a confidentiality acknowledgment, and will make such information readily available to any prospective investor in the Securities that certifies to the reasonable satisfaction of the Company that it is an eligible purchaser of the Securities, any securities analyst (to the extent providing analysis of investment in the Securities) or any market maker in the Securities, in each case (i) who agrees to treat such information as confidential or (ii) accesses such information on Intralinks or any comparable password protected online data system which will require a confidentiality acknowledgment; provided that the Company shall post such information thereon and make readily available any password or other login information to any such prospective investor in the Securities, any such securities analyst (to the extent providing analysis of investment in the Securities) or any such market maker in the Securities or (y) otherwise provide substantially comparable availability of such reports (as determined by the Company in good faith) (it being understood that, without limitation, making such reports available on Bloomberg or another private electronic information service shall constitute substantially comparable availability). The Company will hold a quarterly conference call for all Holders and securities analysts (to the extent providing analysis of investment in the Securities) to discuss such financial information promptly after distribution of such financial information.
(e) To the extent not satisfied by the foregoing, the Issuer will, for so long as any Notes are outstanding, Company will also furnish to Holders Holders, securities analysts (to the extent providing analysis of investment in the Securities) and to prospective purchasers, investors in the Securities upon their request, request the information required to be delivered pursuant to Rule 144A(d)(4) under the Securities Act, so long as the Securities are not freely transferable under the Securities Act.
(ef) The Issuer If the Company has designated any of its Subsidiaries as an Unrestricted Subsidiary and if any such Unrestricted Subsidiary or group of Unrestricted Subsidiaries, if taken together as one Subsidiary, would constitute a Significant Subsidiary of the Company, then the annual and quarterly information required by clause (i) of Section 4.02(a) shall include a reasonably detailed presentation, either on the face of the financial statements or in the footnotes thereto, of the financial condition and results of operations of the Company and its Restricted Subsidiaries separate from the financial condition and results of operations of such Unrestricted Subsidiaries.
(g) Notwithstanding the foregoing, the financial statements, information and other documents required to be provided as described above, may satisfy its obligations in this Section 4.03 with respect to financial information relating to the Issuer by furnishing financial information relating to a be those of (i) Holdings or Intermediate Holdings or (ii) any other direct or indirect parent companyof the Company; provided that, if and for the financial information so long as furnished relates to such direct or indirect parent company shall have Independent Assets or Operations (as defined below)of the Company, the same is accompanied by consolidating information that explains summarizes in reasonable detail the differences between the information relating to such parent companyparent, on the one hand, and the information relating to the Issuer and its Restricted Subsidiaries Company on a stand-alone standalone basis, on the other hand. “Independent Assets .
(h) The Company will be deemed to have furnished the reports referred to in Section 4.02(a) if the Company, Holdings or Operations” meansany direct or indirect parent has filed reports containing such information with the SEC.
(i) Delivery of such reports, information and documents to the Trustee is for informational purposes only and the Trustee’s receipt of such shall not constitute actual or constructive knowledge or notice of any information contained therein or determinable from information contained therein, including the Company’s compliance with any of its covenants hereunder (as to which the Trustee is entitled to rely exclusively on an Officer’s Certificate of the Company with respect thereto). The Trustee will have no responsibility whatsoever to any monitor whether such parent company, that such parent company’s total assets, revenues, income from continuing operations before income taxes and cash flows from operating activities (excluding in each case amounts related to its investment in filing or posting has occurred or the Issuer and the Restricted Subsidiaries), determined in accordance with GAAP and as shown on the most recent balance sheet timeliness of such parent company, is more than 3.0% of such parent company’s corresponding consolidated amountfiling or posting.
Appears in 1 contract
Samples: Indenture (PQ Group Holdings Inc.)
Reports and Other Information. (a) Notwithstanding that Whether or not the Issuer may not be is subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act or otherwise report on an annual and quarterly basis on forms provided for such annual and quarterly reporting pursuant to rules and regulations promulgated by the SECAct, the Issuer shall furnish to the Trustee and Holders of the Notes (without exhibits) or post on its website (which may be password protected so long as the password is made promptly available by the Issuer to the Holders, research analysts and prospective purchasers upon request) no later than 15 days after the dates specified below:
(1) within 90 days after the end of each fiscal year (beginning with the fiscal year ending after the Issue Date), annual reports containing substantially all of the information required to be contained in an Annual Report on Form 10-K if the Issuer had been a reporting company under the Exchange Act (but only to the extent similar information is included in the Offering Memorandum); provided, that the Issuer shall not be required to provide the information otherwise required to be presented by reporting companies under the Exchange Act pursuant to Part III of Form 10-K except for such information as would be required by Item 401 of Regulation S-K (other than the information required by subsections (c) and (g) of such item), Item 403(a) of Regulation S-K and Item 404 of Regulation S-K (assuming a transaction threshold of $2,500,000 rather than $120,000 and other than information with respect to employment and compensation arrangements and the information required by Item 404(b));
(2) within 45 days after the end of each of the first three fiscal quarters of each fiscal year, reports containing substantially all of the information required to be contained in a Quarterly Report on Form 10-Q if the Issuer had been a reporting company under the Exchange Act (but only to the extent similar information is included in the Offering Memorandum); and
(3) within the later of 15 days after the occurrence of the specified event or within five (5) Business Days of the date on which an event would have been required to be reported on a Form 8-K (as in effect on the Issue Date), information pursuant to Items 1.01 (Entry into a Material Definitive Agreement), 1.02 (Termination of a Material Definitive Agreement), 1.03 (Bankruptcy or Receivership), 2.01 (Completion of Acquisition or Disposition of Assets), 2.04 (Triggering Events that Accelerate or Increase a Direct Financial Obligation or an Obligation under an Off-Balance Sheet Arrangement), 2.06 (Material Impairment), 4.01 (Changes in Registrant’s Certifying Accountants), 4.02 (Non-Reliance on Previously Issued Financial Statements or a Related Audit Report or Completed Interim Review), 5.01 (Changes in Control of Registrant), 5.02(a), (b) or (c) (Departure of Directors or Principal Officers; Election of Directors; Appointment of Principal Officers; Compensation Arrangements of Certain Officers) (other than any information relating to compensation arrangements with any directors or officers) and 9.01(a) (Financial Statements and Exhibits) (but only with respect to historical financial statements relating to transactions required to be reported pursuant to Item 2.01 and involving acquisitions of Persons that had revenues in excess of $500,000,000 for the last four completed fiscal quarters prior to the consummation of the acquisition) of a Current Report on Form 8-K (as in effect of the Issue Date); provided, that (a) no such report or information will be required to be so furnished if the Issuer determines in good faith that such event is not material to the Holders or the business, assets, operations or financial condition of the Issuer and its Restricted Subsidiaries, taken as a whole and (b) trade secrets and other confidential information that is competitively sensitive in the good faith and reasonable determination of the Issuer may be excluded from disclosures.
(b) The reports required pursuant to clauses (1), (2) and (3) of Section 4.03(a) will not be required to comply with (i) Section 302, Section 404 or Section 906 of the Xxxxxxxx-Xxxxx Act of 2002, (ii) related Items 307 and 308 of Regulation S-K promulgated by the SEC, (iii) Item 10(e) of Regulation S-K (with respect to any non-GAAP financial measures contained therein) or any comparable successor provision and (iv) Regulation S-X Rule 3-10.
(c) So long as any Notes are outstanding, the Issuer will also:furnish to the Holder, within the time periods specified in the SEC’s rules and regulations (as in effect on the Issue Date):
(1) issue a press release to an internationally recognized wire service no fewer than three Business Days prior to the delivery or posting of the (x) all annual and quarterly reports financial statements that would be required by clauses to be contained in a filing with the SEC on Forms 10-K and 10-Q (1or any successor or comparable forms) of the Issuer, if the Issuer were required to file such forms, plus a “Management’s Discussion and Analysis of Financial Condition and Results of Operations”; and (2y) of Section 4.03(a) announcing the date on which such reports will be made available with respect to the Holders and directing Holdersannual financial statements only, research analysts and prospective purchasers to contact a report on the investor relations office of annual financial statements by the Issuer to obtain copies of such reports;Issuer’s independent registered public accounting firm; and
(2) maintain a website all information that would be required to be contained in filings with the SEC on Form 8-K under Items 1.01 (which may including furnishing any material debt agreements that would be password protected so long required to be described in such Form 8-K), 1.02, 1.03, 2.01, 2.05, 2.06, 4.01, 4.02, 5.01 and 5.02(b) and (c) (other than with respect to information otherwise 73 required or contemplated by Item 402 of Regulation S-K) as in effect on the password is made promptly available by Issue Date if the Issuer were required to Holdersfile such reports; provided, research analysts and prospective purchasers) however, that no such current report shall be required to which all include as an exhibit, or to include a summary of the reports terms of, any employment or compensatory arrangement agreement, plan or understanding between the Issuer (or any of its Subsidiaries) and press releases required by this Section 4.03 are posted; and
(3) host and participate in customary quarterly conference calls (which may be a single conference call together with investors holding other securities any director, manager or executive officer, of the Issuer and/or (or any of its Restricted Subsidiaries and/or any direct or indirect parent Subsidiaries). All such annual reports shall be furnished within 90 days after the end of the Issuer) fiscal year to discuss operating results which they relate, and related mattersall such quarterly reports shall be furnished within 45 days after the end of the fiscal quarter to which they relate. All such current reports shall be furnished within the time periods specified in the SEC’s rules and regulations for reporting companies under the Exchange Act. The Issuer shall issue make available such information and such reports (as well as the details regarding the conference call described below) to the Trustee under this Indenture, to any Holder and, upon request, to any beneficial owner of the Notes, in each case, by (i) filing such reports with the SEC (and such reports are publicly available) or (ii) posting such reports on the Issuer’s website and issuing a press release which in respect thereof. The Issuer will provide the date hold a quarterly conference call for all Holders and time of any such call and will direct Holders, prospective purchasers and research securities analysts to contact the investor relations office of the Issuer to obtain access (to the conference call; provided, that the Issuer shall not be required to undertake the actions set forth in clauses (1), (2) and (3) extent providing analysis of this Section 4.03(c) at any time that the Issuer or any direct or indirect parent thereof is otherwise undertaking similar actions on behalf of, and making similar information available to, investors holding other securities of the Issuer or any direct or indirect parent thereof; provided, further, that such information described investment in the immediately preceding proviso is made available notes) to the Holdersdiscuss such financial information (including a customary Q&A session) no later than five (5) Business Days after distribution of such financial information.
(db) In additionThe Issuer shall provide S&P and Xxxxx’x (and their respective successors) with information on a periodic basis as S&P or Xxxxx’x, as the case may be, shall reasonably require in order to maintain public ratings of the Notes. To the extent not satisfied by the foregoing, the Issuer will, for so long as any Notes are outstanding, shall also furnish to Holders Holders, securities analysts (to the extent providing analysis of investment in the notes) and to prospective purchasers, investors in the Notes upon their request, request the information required to be delivered pursuant to Rule 144A(d)(4) under the Securities Act of 1933, as amended (the “Securities Act”), so long as the Notes are not freely transferable under the Securities Act.
(ec) The Issuer may satisfy its obligations in this Section 4.03 with respect to financial information relating to If the Issuer has designated any of its Subsidiaries as an Unrestricted Subsidiary and if any such Unrestricted Subsidiary or group of Unrestricted Subsidiaries, if taken together as one Subsidiary, would constitute a Significant Subsidiary of the Issuer, then the annual and quarterly information required by furnishing clause (1) of the first paragraph of this covenant shall include a reasonably detailed presentation, either on the face of the financial statements or in the footnotes thereto, of the financial condition and results of operations of the Issuer and its Restricted Subsidiaries separate from the financial condition and results of operations of such Unrestricted Subsidiaries.
(d) Notwithstanding the foregoing, the financial statements, information relating and other documents required to a be provided as described above, may be those of (i) the Issuer or (ii) any direct or indirect parent companyof the Issuer rather than those of the Issuer; provided that, if and for so long as such parent company shall have Independent Assets or Operations (as defined below), that the same is accompanied by consolidating information that explains in reasonable detail the differences between the information relating to such parent companyparent, on the one hand, and the information relating to the Issuer and its the Restricted Subsidiaries on a stand-alone standalone basis, on the other hand. “Independent Assets Delivery of reports, information and documents to the Trustee is for informational purposes only and its receipt of such reports shall not constitute constructive notice of any information contained therein or Operations” meansdeterminable from information contained therein, including our compliance with any of our covenants under this Indenture or the Notes (as to which the Trustee is entitled to rely exclusively on Officer’s Certificates). The Trustee has no obligation to review or confirm any reports, information or documents delivered to or received by the Trustee at any 74 time or from any source, or to notify any person of receipt or failure to receive any reports, information or documents. The Trustee shall not be obligated to monitor or confirm, on a continuing basis or otherwise, our compliance with the covenants or with respect to any such parent company, that such parent company’s total assets, revenues, income from continuing operations before income taxes and cash flows from operating activities (excluding in each case amounts related to its investment in reports or other documents filed with the Issuer and the Restricted Subsidiaries), determined in accordance with GAAP and as shown on the most recent balance sheet of such parent company, is more than 3.0% of such parent company’s corresponding consolidated amountSEC under this Indenture.
Appears in 1 contract
Reports and Other Information. (a) Notwithstanding that the Issuer may not be subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act or otherwise report on an annual and quarterly basis on forms provided for such annual and quarterly reporting pursuant to rules and regulations promulgated by the SECSo long as any Securities are outstanding, the Issuer shall will furnish to the Trustee and Holders of the Notes (without exhibits) or post on its website (which may be password protected so long as the password is made promptly available by the Issuer to the Holders, research analysts and prospective purchasers upon request) no later than within 15 days after each of the dates specified periods set forth below:
(1i) within 90 days after the end of each fiscal year or, solely in the case of the Fiscal Year ending December 31, 2023, on or before September 30, 2024 (beginning but, in each case, no later than the date the following items are delivered or are required to be delivered to lenders and/or lender-representatives in connection with the fiscal year ending after the Issue Dateother Indebtedness), annual reports containing substantially all of the information that would have been required to be contained in an Annual Report on Form 10-K under the Exchange Act of the Issuer, or any successor or comparable form, containing the information required to be contained therein, or required in such successor or comparable form as if the Issuer had been a reporting company under the Exchange Act (but only to the extent similar information is included in the Offering Memorandum); provided, that the Issuer shall not be required to provide the information otherwise required to be presented by reporting companies under the Exchange Act pursuant to Part III of Form 10-K except for such information as would be required by Item 401 period, including a “Management’s Discussion and Analysis of Regulation S-K (other than the information required by subsections (c) Financial Condition and (g) Results of such item), Item 403(a) of Regulation S-K and Item 404 of Regulation S-K (assuming a transaction threshold of $2,500,000 rather than $120,000 and other than information Operations” with respect to employment the periods presented and compensation arrangements and a report on the information required annual financial statements by Item 404(b))the Issuer’s independent registered public accounting firm;
(2ii) within 45 days after the end of each of the first three fiscal quarters of each fiscal yearyear (or 75 days in the case of the Fiscal Quarter ending September 30, 2023) commencing with the Fiscal Quarter ending September 30, 2023, quarterly reports containing substantially all of the information that would have been required to be contained in a Quarterly Report on Form 10-Q of the Issuer containing all quarterly information that would be required to be contained in Form 10-Q, or any successor or comparable form as if the Issuer had been a reporting company under the Exchange Act (but only for such period, including a “Management’s Discussion and Analysis of Financial Condition and Results of Operations,” subject to normal year-end adjustments and the extent similar information is included in the Offering Memorandum)absence of footnotes; and
(3iii) within the later of 15 days promptly from time to time after the occurrence of the specified event or within five (5) Business Days of the date on which an event would have been required to be reported therein reported, such other reports on a Form 8-K (as in effect on the Issue Date), information pursuant to Items 1.01 (Entry into a Material Definitive Agreement)1, 1.02 (Termination of a Material Definitive Agreement)2 and 4, 1.03 (Bankruptcy or Receivership), 2.01 (Completion of Acquisition or Disposition of Assets), 2.04 (Triggering Events that Accelerate or Increase a Direct Financial Obligation or an Obligation under an Off-Balance Sheet Arrangement), 2.06 (Material Impairment), 4.01 (Changes in Registrant’s Certifying Accountants), 4.02 (Non-Reliance on Previously Issued Financial Statements or a Related Audit Report or Completed Interim Review), 5.01 (Changes in Control of Registrant)Items 5.01, 5.02(a), (b) or and (c) (Departure and Item 5.03 of Directors or Principal Officers; Election of Directors; Appointment of Principal Officers; Compensation Arrangements of Certain Officers) (other than any information relating to compensation arrangements with any directors or officers) and 9.01(a) (Financial Statements and Exhibits) (but only with respect to historical financial statements relating to transactions required to be reported pursuant to Item 2.01 and involving acquisitions of Persons that had revenues in excess of $500,000,000 for the last four completed fiscal quarters prior to the consummation of the acquisition) of a Current Report on Form 8-K (K, or any successor or comparable form as in effect of if the Issue Date)Issuer had been a reporting company under the Exchange Act for such period; provided, however, that (a) no such report or information will be required to be so furnished if the Issuer determines in good faith that such event is not material to the Holders of the Securities or the business, assets, operations or financial condition of the Issuer and its Restricted Subsidiaries, taken as a whole and (b) trade secrets and other confidential information whole; in each case, in a manner that is competitively sensitive complies in all material respects with the good faith and reasonable determination of the Issuer may be excluded from disclosures.
(b) The requirements specified in such form, provided, that such reports required pursuant to clauses (1i), (2ii) and (3iii) of Section 4.03(aabove (a) will shall not be required to comply with (i) Section 302, Section 404 or Section 906 of the Xxxxxxxx-Xxxxx Act of 2002, (ii) as amended, or related Items 307 and 308 of Regulation S-K promulgated by the SEC, (iii) Regulation G or Item 10(e) of Regulation S-K (with respect to any non-GAAP financial measures contained therein), (b) or any comparable successor provision and (iv) Regulation S-X Rule 3-10.
(c) So long as any Notes are outstanding, the Issuer will also:
(1) issue a press release to an internationally recognized wire service no fewer than three Business Days prior to the delivery or posting of the annual and quarterly reports required by clauses (1) and (2) of Section 4.03(a) announcing the date on which such reports will be made available to the Holders and directing Holders, research analysts and prospective purchasers to contact the investor relations office of the Issuer to obtain copies of such reports;
(2) maintain a website (which may be password protected so long as the password is made promptly available by the Issuer to Holders, research analysts and prospective purchasers) to which all of the reports and press releases required by this Section 4.03 are posted; and
(3) host and participate in customary quarterly conference calls (which may be a single conference call together with investors holding other securities of the Issuer and/or its Restricted Subsidiaries and/or any direct or indirect parent of the Issuer) to discuss operating results and related matters. The Issuer shall issue a press release which will provide the date and time of any such call and will direct Holders, prospective purchasers and research analysts to contact the investor relations office of the Issuer to obtain access to the conference call; provided, that the Issuer shall not be required to undertake comply with Items 402, 403, 406 and 407 of Regulation S-K promulgated by the actions set forth in clauses (1)SEC, (2c) shall not be required to comply with Rule 3-05, Rule 3-09, Rule 3-10 or Rule 3-16 of Regulation S-X promulgated by the SEC, (d) shall not be required to include any exhibits that would have been required to be filed pursuant to Item 601 of Regulation S-K promulgated by the SEC, (e) shall not be required to comply with any conflict minerals rules of the SEC or similar rules and regulations of any other government agency, (f) shall not be required to present compensation, employment arrangements, related party or beneficial ownership information, (g) shall not be required to contain any segment reporting, (h) shall not be required to disclose any trade secrets and other proprietary information and (3i) of this Section 4.03(c) at any time that shall not be required to include financial statements in interactive data format using the Issuer or any direct or indirect parent thereof is otherwise undertaking similar actions on behalf of, and making similar information available to, investors holding other securities of the Issuer or any direct or indirect parent thereof; provided, further, that such information described in the immediately preceding proviso is made available to the HolderseXtensible Business Reporting Language.
(db) If the Issuer has designated any of its Subsidiaries as an Unrestricted Subsidiary and if any such Unrestricted Subsidiary or group of Unrestricted Subsidiaries, if taken together as one Subsidiary, would constitute a Significant Subsidiary of the Issuer, then the annual and quarterly information required above shall include a presentation of selected financial metrics (in the Issuer’s sole discretion) of such Unrestricted Subsidiaries as a group in the “Management’s Discussion and Analysis of Financial Condition and Results of Operations.”
(c) In addition, to the extent not satisfied by the foregoing, the Issuer willwill agree that, for so long as any Notes Securities are outstanding, it will furnish to Holders and to securities analysts and prospective purchasersinvestors, upon their request, the information required to be delivered pursuant to Rule 144A(d)(4) under the Securities Act.
(d) Delivery of such reports, information and documents to the Trustee is for informational purposes only and the Trustee’s receipt of such shall not constitute actual or constructive notice of any information contained therein or determinable from information contained therein, including the Issuer’s compliance with any of its covenants hereunder (as to which the Trustee is entitled to rely exclusively on Officer’s Certificates with respect thereto). The Trustee shall have no responsibility for the filing, timeliness or content of such reports. The Trustee shall have no obligation whatsoever to determine whether or not any information has been posted. Additionally, the Trustee shall not be obligated to monitor or confirm, on a continuing basis or otherwise, the Issuer’s compliance with the covenants or with respect to any reports or other documents filed with the SEC via the XXXXX (or a successor) filing system (if applicable) or any website or data site under this Indenture.
(e) The Issuer may satisfy its subsequent filing or making available of any materials required by Section 4.02(a) shall be deemed automatically to cure any Default or Event of Default resulting from the failure to file or make available such materials within the required time frame.
(f) The obligations in this Section 4.03 with respect to financial 4.02(a) may be satisfied by furnishing the information relating of the Issuer or any Parent Company of the Issuer, provided that to the Issuer by furnishing financial extent such information relating relates to a direct or indirect parent company; provided that, if and for so long as such parent company shall have Independent Assets or Operations (as defined below)the Parent Company, the same is financial statements shall be shall be accompanied by consolidating information that explains in reasonable detail the differences between the information relating to such parent companythe Parent Company, on the one hand, and the information relating to the Issuer and its Restricted Subsidiaries on a stand-alone standalone basis, on the other hand, which consolidating information may be unaudited.
(g) The Issuer will be deemed to have satisfied the reporting requirements of Section 4.02(a) if (i) at any time that the Issuer or any Parent Company is subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act or is a voluntary filer, the Issuer or any Parent Company has filed such reports containing such information with the SEC via the XXXXX (or a successor) filing system or (ii) at any time that the Issuer or any Parent Company does not file such reports with the SEC via the XXXXX (or a successor) filing system, the Issuer or any Parent Company posts such reports required by Section 4.02(a) on the Issuer’s website (or a password protected online data system). “Independent Assets Access to any such reports on the Issuer’s website (or Operations” meansa password protected online data system) may be password protected; provided that the Issuer or the Parent Company makes reasonable efforts to notify the Trustee and provide the Trustee with access, and, upon request, provides to bona fide securities analysts and bona fide prospective investors, the password and other information required to access such reports on its website (or a password protected online data system). Any Person who requests such information from the Issuer will be required to represent to and agree with the Issuer (and by accepting such information, such Person will be deemed to have represented to and agreed with the Issuer) to the Issuer’s good faith satisfaction that:
(i) it is a Holder, a bona fide prospective investor in the Securities, a bona fide market maker (or intended market maker) with respect to the Securities or a bona fide securities analyst, as applicable;
(ii) if it is a prospective purchaser of the Securities, it is (A) a “qualified institutional buyer,” within the meaning of Rule 144A, (B) a non-U.S. person, within the meaning of Regulation S, 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 securities laws or regulations;
(iv) it will not communicate the information to any Person and will keep the information confidential;
(v) it will use such parent company, that such parent company’s total assets, revenues, income from continuing operations before income taxes and cash flows from operating activities (excluding information only in each case amounts related to its connection with evaluating an investment in the Securities (or, if it is a bona fide market maker or intended market maker, only in connection with making a market in the Securities or, if it is a bona fide securities analyst, for preparing analysis for Holders and prospective purchasers of the Securities that otherwise have access to the information in compliance with this covenant); and
(vi) (A) will not use such information in any manner intended to compete with the business of the Issuer and (B) is not a Person (which includes such Person’s Affiliates, other than the Restricted Subsidiaries), determined Affiliates of a bona fide securities research analyst with whom such research analyst does not share such information) that is principally engaged in accordance with GAAP or derives a significant portion of its revenues from operating or owning a business which is substantially similar to the business engaged in by the Issuer and as shown its Subsidiaries on the most recent balance sheet of such parent company, is more than 3.0% of such parent company’s corresponding consolidated amountIssue Date.
Appears in 1 contract
Samples: Indenture (Party City Holdco Inc.)
Reports and Other Information. (a) Notwithstanding that the Issuer may not be subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act or otherwise report on an annual and quarterly basis on forms provided for such annual and quarterly reporting pursuant to rules and regulations promulgated by the SEC, the Issuer shall furnish to the Trustee and Holders of the Notes (without exhibits) or post on its website (which may be password protected so long as the password is made promptly available by the Issuer to the Holders, research analysts and prospective purchasers upon request) no later than 15 days after the dates specified below:
(1) within 90 days after the end of each fiscal year (beginning with the fiscal year ending after the Issue Date), annual reports containing substantially all of the information required to be contained in an Annual Report on Form 10-K if the Issuer had been a reporting company under the Exchange Act (but only to the extent similar information is included in the Offering Memorandum); provided, that the Issuer shall not be required to provide the information otherwise required to be presented by reporting companies under the Exchange Act pursuant to Part III of Form 10-K except for such information as would be required by Item 401 of Regulation S-K (other than the information required by subsections (c) and (g) of such item), Item 403(a) of Regulation S-K and Item 404 of Regulation S-K (assuming a transaction threshold of $2,500,000 rather than $120,000 and other than information with respect to employment and compensation arrangements and the information required by Item 404(b));
(2) within 45 days after the end of each of the first three fiscal quarters of each fiscal year, reports containing substantially all of the information required to be contained in a Quarterly Report on Form 10-Q if the Issuer had been a reporting company under the Exchange Act (but only to the extent similar information is included in the Offering Memorandum); and
(3) within the later of 15 days after the occurrence of the specified event or within five (5) Business Days of the date on which an event would have been required to be reported on a Form 8-K (as in effect on the Issue Date), information pursuant to Items 1.01 (Entry into a 84111084_1 Material Definitive Agreement), 1.02 (Termination of a Material Definitive Agreement), 1.03 (Bankruptcy or Receivership), 2.01 (Completion of Acquisition or Disposition of Assets), 2.04 (Triggering Events that Accelerate or Increase a Direct Financial Obligation or an Obligation under an Off-Balance Sheet Arrangement), 2.06 (Material Impairment), 4.01 (Changes in Registrant’s Certifying Accountants), 4.02 (Non-Reliance on Previously Issued Financial Statements or a Related Audit Report or Completed Interim Review), 5.01 (Changes in Control of Registrant), 5.02(a), (b) or (c) (Departure of Directors or Principal Officers; Election of Directors; Appointment of Principal Officers; Compensation Arrangements of Certain Officers) (other than any information relating to compensation arrangements with any directors or officers) and 9.01(a) (Financial Statements and Exhibits) (but only with respect to historical financial statements relating to transactions required to be reported pursuant to Item 2.01 and involving acquisitions of Persons that had revenues in excess of $500,000,000 for the last four completed fiscal quarters prior to the consummation of the acquisition) of a Current Report on Form 8-K (as in effect of the Issue Date); provided, that (a) no such report or information will be required to be so furnished if the Issuer determines in good faith that such event is not material to the Holders or the business, assets, operations or financial condition of the Issuer and its Restricted Subsidiaries, taken as a whole and (b) trade secrets and other confidential information that is competitively sensitive in the good faith and reasonable determination of the Issuer may be excluded from disclosures.
(b) The reports required pursuant to clauses (1), (2) and (3) of Section 4.03(a) will not be required to comply with (i) Section 302, Section 404 or Section 906 of the Xxxxxxxx-Xxxxx Act of 2002, (ii) related Items 307 and 308 of Regulation S-K promulgated by the SEC, (iii) Item 10(e) of Regulation S-K (with respect to any non-GAAP financial measures contained therein) or any comparable successor provision and (iv) Regulation S-X Rule 3-10.
(c) So long as any Notes are outstanding, the Issuer will also:
(1) issue a press release to an internationally recognized wire service no fewer than three Business Days prior to the delivery or posting of the annual and quarterly reports required by clauses (1) and (2) of Section 4.03(a) announcing the date on which such reports will be made available to the Holders and directing Holders, research analysts and prospective purchasers to contact the investor relations office of the Issuer to obtain copies of such reports;
(2) maintain a website (which may be password protected so long as the password is made promptly available by the Issuer to Holders, research analysts and prospective purchasers) to which all of the reports and press releases required by this Section 4.03 are posted; and
(3) host and participate in customary quarterly conference calls (which may be a single conference call together with investors holding other securities of the Issuer and/or its Restricted Subsidiaries and/or any direct or indirect parent of the Issuer) to discuss operating results and related matters. The Issuer shall issue a press release which will provide the date and time of any such call and will direct Holders, prospective purchasers and research analysts to contact the investor relations office of the Issuer to obtain access to the conference call; provided, that the Issuer shall not be required to undertake the actions set forth in clauses (1), (2) and (3) of this Section 4.03(c) at any time that the Issuer or any direct or indirect parent thereof is otherwise undertaking similar actions on behalf of, and making similar information available to, investors holding other securities of the Issuer or any direct or indirect parent thereof; provided, further, that such information described in the immediately preceding proviso is made available to the Holders. 84111084_1
(d) The Issuer will make available copies of all reports required by clauses (1) through (3) of Section 4.03(a), if and so long as the Notes are listed on the Official List of TISE and the rules of TISE so require, at the offices of the listing agent or, to the extent required and in the manner permitted by such rules, post such reports on the official website of TISE.
(de) In addition, to the extent not satisfied by the foregoing, the Issuer will, for so long as any Notes are outstanding, furnish to Holders and to prospective purchasers, upon their request, the information required to be delivered pursuant to Rule 144A(d)(4) under the Securities Act.
(ef) The Issuer may satisfy its obligations in this Section 4.03 with respect to financial information relating to the Issuer by furnishing financial information relating to a direct or indirect parent company; provided that, if and for so long as such parent company shall have Independent Assets or Operations (as defined below), the same is accompanied by consolidating information that explains in reasonable detail the differences between the information relating to such parent company, on the one hand, and the information relating to the Issuer and its Restricted Subsidiaries on a stand-alone basis, on the other hand. “Independent Assets or Operations” means, with respect to any such parent company, that such parent company’s total assets, revenues, income from continuing operations before income taxes and cash flows from operating activities (excluding in each case amounts related to its investment in the Issuer and the Restricted Subsidiaries), determined in accordance with GAAP and as shown on the most recent balance sheet of such parent company, is more than 3.0% of such parent company’s corresponding consolidated amount.
Appears in 1 contract
Samples: Indenture (Iqvia Holdings Inc.)
Reports and Other Information. (a) Notwithstanding that the Issuer may not be subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act or otherwise report on an annual and quarterly basis on forms provided for such annual and quarterly reporting pursuant to rules and regulations promulgated by the SEC, the Issuer shall furnish to the Trustee and Holders of the Notes (without exhibits) or post on its website (which may be password protected so long as the password is made promptly available by the Issuer to the Holders, research analysts and prospective purchasers upon request) no later than 15 days after the dates specified below:
(1) within 90 days after the end of each fiscal year (beginning with the fiscal year ending after the Issue Date), annual reports containing substantially all of the information required to be contained in an Annual Report on Form 10-K if the Issuer had been a reporting company under the Exchange Act (but only to the extent similar information is included in the Offering Memorandum); provided, that the Issuer shall not be required to provide the information otherwise required to be presented by reporting companies under the Exchange Act pursuant to Part III of Form 10-K except for such information as would be required by Item 401 of Regulation S-K (other than the information required by subsections (c) and (g) of such item), Item 403(a) of Regulation S-K and Item 404 of Regulation S-K (assuming a transaction threshold of $2,500,000 rather than $120,000 and other than information with respect to employment and compensation arrangements and the information required by Item 404(b));
(2) within 45 days after the end of each of the first three fiscal quarters of each fiscal year, reports containing substantially all of the information required to be contained in a Quarterly Report on Form 10-Q if the Issuer had been a reporting company under the Exchange Act (but only to the extent similar information is included in the Offering Memorandum); and
(3) within the later of 15 days after the occurrence of the specified event or within five (5) Business Days of the date on which an event would have been required to be reported on a Form 8-K (as in effect on the Issue Date), information pursuant to Items 1.01 (Entry into a Material Definitive Agreement), 1.02 (Termination of a Material Definitive Agreement), 1.03 (Bankruptcy or Receivership), 2.01 (Completion of Acquisition or Disposition of Assets), 2.04 (Triggering Events that Accelerate or Increase a Direct Financial Obligation or an Obligation under an Off-Balance Sheet Arrangement), 2.06 (Material Impairment), 4.01 (Changes in Registrant’s Certifying Accountants), 4.02 (Non-Reliance on Previously Issued Financial Statements or a Related Audit Report or Completed Interim Review), 5.01 (Changes in Control of Registrant), 5.02(a), (b) or (c) (Departure of Directors or Principal Officers; Election of Directors; Appointment of Principal Officers; Compensation Arrangements of Certain Officers) (other than any information relating to compensation arrangements with any directors or officers) and 9.01(a) (Financial Statements and Exhibits) (but only with respect to historical financial statements relating to transactions required to be reported pursuant to Item 2.01 and involving acquisitions of Persons that had revenues in excess of $500,000,000 for the last four completed fiscal quarters prior to the consummation of the acquisition) of a Current Report on Form 8-K (as in effect of the Issue Date); provided, that (a) no such report or information will be required to be so furnished if the Issuer determines in good faith that such event is not material to the Holders or the business, assets, operations or financial condition of the Issuer and its Restricted Subsidiaries, taken as a whole and (b) trade secrets and other confidential information that is competitively sensitive in the good faith and reasonable determination of the Issuer may be excluded from disclosures.
(b) The reports required pursuant to clauses (1), (2) and (3) of Section 4.03(a) will not be required to comply with (i) Section 302, Section 404 or Section 906 of the Xxxxxxxx-Xxxxx Act of 2002, (ii) related Items 307 and 308 of Regulation S-K promulgated by the SEC, (iii) Item 10(e) of Regulation S-K (with respect to any non-GAAP financial measures contained therein) or any comparable successor provision and (iv) Regulation S-X Rule 3-10.
(c) So long as any Notes are outstanding, the Issuer will also:
(1) issue a press release to an internationally recognized wire service no fewer than three Business Days prior to the delivery or posting of the annual and quarterly reports required by clauses (1) and (2) of Section 4.03(a) announcing the date on which such reports will be made available to the Holders and directing Holders, research analysts and prospective purchasers to contact the investor relations office of the Issuer to obtain copies of such reports;
(2) maintain a website (which may be password protected so long as the password is made promptly available by the Issuer to Holders, research analysts and prospective purchasers) to which all of the reports and press releases required by this Section 4.03 are posted; and
(3) host and participate in customary quarterly conference calls (which may be a single conference call together with investors holding other securities of the Issuer and/or its Restricted Subsidiaries and/or any direct or indirect parent of the Issuer) to discuss operating results and related matters. The Issuer shall issue a press release which will provide the date and time of any such call and will direct Holders, prospective purchasers and research analysts to contact the investor relations office of the Issuer to obtain access to the conference call; provided, that the Issuer shall not be required to undertake the actions set forth in clauses (1), (2) and (3) of this Section 4.03(c) at any time that the Issuer or any direct or indirect parent thereof is otherwise undertaking similar actions on behalf of, and making similar information available to, investors holding other securities of the Issuer or any direct or indirect parent thereof; provided, further, that such information described in the immediately preceding proviso is made available to the Holders.
(d) The Issuer will make available copies of all reports required by clauses (1) through (3) of Section 4.03(a), if and so long as the Notes are listed on the Official List of Euronext Dublin and admitted for trading on the Global Exchange Market thereof and the rules of Euronext Dublin so require, at the offices of the listing agent or, to the extent required and in the manner permitted by such rules, post such reports on the official website of Euronext Dublin.
(e) In addition, to the extent not satisfied by the foregoing, the Issuer will, for so long as any Notes are outstanding, furnish to Holders and to prospective purchasers, upon their request, the information required to be delivered pursuant to Rule 144A(d)(4) under the Securities Act.
(ef) The Issuer may satisfy its obligations in this Section 4.03 with respect to financial information relating to the Issuer by furnishing financial information relating to a direct or indirect parent company; provided that, if and for so long as such parent company shall have Independent Assets or Operations (as defined below), the same is accompanied by consolidating information that explains in reasonable detail the differences between the information relating to such parent company, on the one hand, and the information relating to the Issuer and its Restricted Subsidiaries on a stand-alone basis, on the other hand. “Independent Assets or Operations” means, with respect to any such parent company, that such parent company’s total assets, revenues, income from continuing operations before income taxes and cash flows from operating activities (excluding in each case amounts related to its investment in the Issuer and the Restricted Subsidiaries), determined in accordance with GAAP and as shown on the most recent balance sheet of such parent company, is more than 3.0% of such parent company’s corresponding consolidated amount.
Appears in 1 contract
Samples: Indenture (Iqvia Holdings Inc.)
Reports and Other Information. (a) Notwithstanding that the Issuer may not be subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act or otherwise report on an annual and quarterly basis on forms provided for such annual and quarterly reporting pursuant to rules and regulations promulgated by the SEC, the Issuer shall furnish to the Trustee and Holders of the Notes (without exhibits) or post on its website (which may be password protected so long as the password is made promptly available by the Issuer to the Holders, research analysts and prospective purchasers upon request) no later than 15 days after the dates specified below:
(1) within 90 days after the end of each fiscal year (beginning with the fiscal year ending after the Issue Date), annual reports reports, containing substantially all of the information required to be contained in an Annual Report on Form 10-K if the Issuer had been a reporting company under the Exchange Act (but only to the extent similar information is included in the Offering Memorandum); provided, that the Issuer shall not be required to provide the information otherwise required to be presented by reporting companies under the Exchange Act pursuant to Part III of Form 10-K except for such information as would be required by Item 401 of Regulation S-K (other than the information required by subsections (c) and (g) of such item), Item 403(a) of Regulation S-K and Item 404 of Regulation S-K (assuming a transaction threshold of $2,500,000 2,000,000 rather than $120,000 and other than information with respect to employment and compensation arrangements and the information required by Item 404(b));
(2) within 45 days after the end of each of the first three fiscal quarters of each fiscal year, reports containing substantially all of the information required to be contained in a Quarterly Report on Form 10-Q if the Issuer had been a reporting company under the Exchange Act (but only to the extent similar information is included in the Offering Memorandumthis offering memorandum); and
(3) within the later of 15 days after the occurrence of the specified event or within five (5) Business Days of the date on which an event would have been required to be reported on a Form 8-K (as in effect on the Issue Date), information pursuant to Items 1.01 (Entry into a Material Definitive Agreement), 1.02 (Termination of a Material Definitive Agreement), 1.03 (Bankruptcy or Receivership), 2.01 (Completion of Acquisition or Disposition of Assets), 2.04 (Triggering Events that Accelerate or Increase a Direct Financial Obligation or an Obligation under an Off-Balance Sheet Arrangement), 2.06 (Material Impairment), 4.01 (Changes in Registrant’s Certifying Accountants), 4.02 (Non-Reliance on Previously Issued Financial Statements or a Related Audit Report or Completed Interim Review), 5.01 (Changes in Control of Registrant) 5.02(a),(b), 5.02(a), (b) or (c) (Departure of Directors or Principal Officers; Election of Directors; Appointment of Principal Officers; Compensation Arrangements of Certain Officers) (other than any information relating to compensation arrangements with any directors or officers) and 9.01(a) (Financial Statements and Exhibits) (Exhibits but only with respect to historical financial statements relating to transactions required to be reported pursuant to Item 2.01 and involving acquisitions of Persons that had revenues in excess of $500,000,000 200,000,000 for the last four completed fiscal quarters prior to the consummation of the acquisition) of a Current Report on Form 8-K (as in effect of the Issue Date); provided, that (a) no such report or information will be required to be so furnished if the Issuer determines in good faith that such event is not material to the Holders or the business, assets, operations or financial condition of the Issuer and its Restricted Subsidiaries, taken as a whole and (b) trade secrets and other confidential information that is competitively sensitive in the good faith and reasonable determination of the Issuer may be excluded from disclosures.
(b) The reports required pursuant to clauses (1), (2) and (3) of Section 4.03(a) will not be required to comply with (i) Section 302, Section 404 or Section 906 of the Xxxxxxxx-Xxxxx Act of 2002, (ii) related Items 307 and 308 of Regulation S-K promulgated by the SEC, (iii) Item 10(e) of Regulation S-K (with respect to any non-GAAP financial measures contained therein) or any comparable successor provision and (iv) Regulation S-X Rule 3-10; provided that if non-Guarantor Subsidiaries (on a consolidated basis) constitute more than 10% of the Issuer’s consolidated revenues, operating income, assets or debt for the last four quarters ended on, or as of, as the case may be, the date of any reports required pursuant to clauses (1) or (2) of Section 4.03(a), then the Issuer must provide supplemental unaudited disclosure of its operating results by geographic region, provided that such operating results shall also include disclosure of United States operating income and indebtedness for borrowed money payable to Persons (other than the Issuer and its Restricted Subsidiaries).
(c) So long as any Notes are outstanding, the Issuer will also:
(1) issue a press release to an internationally recognized wire service no fewer than three Business Days prior to the delivery or posting of the annual and quarterly reports required by clauses (1) and (2) of Section 4.03(a) announcing the date on which such reports will be made available to the Holders and directing Holders, research analysts and prospective purchasers to contact the investor relations office of the Issuer to obtain copies of such reports;
(2) maintain a website (which may be password protected so long as the password is made promptly available by the Issuer to Holders, research analysts and prospective purchasers) to which all of the reports and press releases required by this Section 4.03 are posted; and
(3) host and participate in customary quarterly conference calls (which may be a single conference call together with investors holding other securities of the Issuer and/or its Restricted Subsidiaries and/or any direct or indirect parent of the Issuer) to discuss operating results and related matters. The Issuer shall issue a press release which will provide the date and time of any such call and will direct Holders, prospective purchasers and research analysts to contact the investor relations office of the Issuer to obtain access to the conference call; provided, that the Issuer shall not be required to undertake the actions set forth in clauses (1), (2) and (3) of this Section 4.03(c) at any time that the Issuer or any direct or indirect parent thereof is otherwise undertaking similar actions on behalf of, and making similar information available to, investors holding other securities of the Issuer or any direct or indirect parent thereof; provided, further, that such information described in the immediately preceding proviso is made available to the Holders.
(d) In addition, to the extent not satisfied by the foregoing, the Issuer will, for so long as any Notes are outstanding, furnish to Holders and to prospective purchasers, upon their request, the information required to be delivered pursuant to Rule 144A(d)(4) under the Securities Act.
(e) The In the event that any direct or indirect parent company of the Issuer becomes a Guarantor, the Issuer may satisfy its obligations in this Section 4.03 with respect to financial information relating to the Issuer by furnishing financial information relating to a direct or indirect such parent company; provided that, if and for so long as such parent company shall have Independent Assets or Operations (as defined below), the same is accompanied by consolidating information that explains in reasonable detail the differences between the information relating to such parent company, on the one hand, and the information relating to the Issuer and its Restricted Subsidiaries on a stand-alone basis, on the other hand. “Independent Assets or Operations” means, with respect to any such parent company, that such parent company’s total assets, revenues, income from continuing operations before income taxes and cash flows from operating activities (excluding in each case amounts related to its investment in the Issuer and the Restricted Subsidiaries), determined in accordance with GAAP and as shown on the most recent balance sheet of such parent company, is more than 3.0% of such parent company’s corresponding consolidated amount.
Appears in 1 contract
Reports and Other Information. (a) Notwithstanding that the Issuer Parent may not be subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act or otherwise report on an annual and quarterly basis on forms provided for such annual and quarterly reporting pursuant to rules and regulations promulgated by the SEC, the Issuer Parent shall furnish to the Trustee and Holders of the Notes (without exhibits) or post on its website (which may be password protected so long as the password is made promptly available by the Issuer to the HoldersTrustee, research analysts and prospective purchasers upon request) no later than within 15 days after the dates time periods specified below:
(1i) within 90 days after the end of each fiscal year (beginning with the fiscal year ending after the Issue Date)year, annual reports on Form 10-K, or any successor or comparable form, containing substantially all of the information required to be contained therein, or required in an Annual Report on Form 10-K if the Issuer had been a reporting company under the Exchange Act (but only to the extent similar information is included in the Offering Memorandum); provided, that the Issuer shall not be required to provide the information otherwise required to be presented by reporting companies under the Exchange Act pursuant to Part III of Form 10-K except for such information as would be required by Item 401 of Regulation S-K (other than the information required by subsections (c) and (g) of such item), Item 403(a) of Regulation S-K and Item 404 of Regulation S-K (assuming a transaction threshold of $2,500,000 rather than $120,000 and other than information with respect to employment and compensation arrangements and the information required by Item 404(b))successor or comparable form;
(2ii) within 45 days after the end of each of the first three fiscal quarters of each fiscal year, reports on Form 10-Q containing substantially all of the quarterly information that would be required to be contained in a Quarterly Report on Form 10-Q if the Issuer had been a reporting company under the Exchange Act (but only to the extent similar information is included in the Offering Memorandum)Q, or any successor or comparable form; and
(3iii) within the later of 15 days after the occurrence of the specified event or within five (5) Business Days of the date on which an event would have been required to be reported on a Form 8-K (as in effect on or any successor or comparable form if Parent had been a reporting company under the Issue Date)Exchange Act, information pursuant to Items 1.01 (Entry into a Material Definitive Agreement), 1.02 (Termination of a Material Definitive Agreement), 1.03 (Bankruptcy or Receivership), 2.01 (Completion of Acquisition or Disposition of Assets), 2.04 (Triggering Events that Accelerate or Increase a Direct Financial Obligation or an Obligation under an Off-Balance Sheet Arrangement), 2.06 (Material Impairment), 4.01 (Changes in Registrant’s Certifying Accountants), 4.02 (Non-Reliance on Previously Issued Financial Statements or a Related Audit Report or Completed Interim Review), 5.01 (Changes in Control of Registrant), 5.02(a), (b) or (c) (Departure of Directors or Principal Officers; Election of Directors; Appointment of Principal Officers; Compensation Arrangements of Certain Officers) (other than any information current report relating to compensation arrangements with any directors or officers) and 9.01(a) (Financial Statements and Exhibits) (but only with respect to historical financial statements relating to transactions required to be reported pursuant to Item 2.01 and involving acquisitions of Persons that had revenues in excess of $500,000,000 for the last four completed fiscal quarters prior to the consummation of the acquisition) of a Current Report such event on Form 8-K or any successor or comparable form; in each case, in a manner that complies in all material respects with the requirements specified in such form (except as described above or below and subject, in effect the case of required financial information, to exceptions consistent with the Issue Datepresentation of financial information in the Offering Memorandum, to the extent filed within the times specified above); provided, that (a) no such report or information will be required to be so furnished if the Issuer determines in good faith that such event is not material to the Holders or the business, assets, operations or financial condition of the Issuer and its Restricted Subsidiaries, taken as a whole and (b) trade secrets and other confidential information that is competitively sensitive in the good faith and reasonable determination of the Issuer may be excluded from disclosures.
(b) The reports required pursuant to clauses (1), (2) and (3) of Section 4.03(a) will Parent shall not be required to comply with provide (i) Section 302, Section 404 or Section 906 of the Xxxxxxxx-Xxxxx Act of 2002segment reporting, (ii) related Items 307 and 308 the type of information contemplated by Rules 3-05, 3-09, 3-10, 3-16 or 4-08 of Regulation S-K promulgated X or any schedules required by the SECRegulation S-X, or in each case, any successor provisions, (iii) information required by Regulation G under the Exchange Act or Item 10(e) 10, Item 302, Item 402 or Item 601 of Regulation S-K (with respect to any non-GAAP financial measures contained therein) or any comparable successor provision and provision), (iv) Regulation SXBRL exhibits, (v) earnings per share information, (vi) information regarding executive compensation and related party disclosure related to SEC Release Nos. 33-X Rule 38732A, 34-10.
54302A and IC-27444A, and (cvii) So long as other information customarily excluded from an offering memorandum, including any Notes are outstanding, information that is not otherwise of the Issuer will also:
(1) issue a press release to an internationally recognized wire service no fewer than three Business Days prior type and form currently included in the offering memorandum relating to the delivery or posting of the annual and quarterly reports required by clauses (1) and (2) of Section 4.03(a) announcing the date on which such reports will be made available to the Holders and directing Holders, research analysts and prospective purchasers to contact the investor relations office of the Issuer to obtain copies of such reports;
(2) maintain a website (which may be password protected so long as the password is made promptly available by the Issuer to Holders, research analysts and prospective purchasers) to which all of the reports and press releases required by this Section 4.03 are posted; and
(3) host and participate in customary quarterly conference calls (which may be a single conference call together with investors holding other securities of the Issuer and/or its Restricted Subsidiaries and/or any direct or indirect parent of the Issuer) to discuss operating results and related mattersNotes. The Issuer shall issue a press release which will provide the date and time of any such call and will direct Holders, prospective purchasers and research analysts to contact the investor relations office of the Issuer to obtain access to the conference call; provided, that the Issuer shall not be required to undertake the actions set forth in clauses (1), (2) and (3) of this Section 4.03(c) at any time that the Issuer or any direct or indirect parent thereof is otherwise undertaking similar actions on behalf of, and making similar information available to, investors holding other securities of the Issuer or any direct or indirect parent thereof; provided, further, that such information described in the immediately preceding proviso is made available to the Holders.
(d) In addition, to the extent not satisfied by the foregoing, the Issuer willParent agrees that, for so long as any Notes are outstanding, it will furnish to Holders and to securities analysts and prospective purchasersinvestors, upon their request, the information required to be delivered pursuant to Rule 144A(d)(4) under the Securities Act.
(eb) The Issuer may satisfy Notwithstanding anything herein to the contrary, Parent will not be deemed to have failed to comply with any of its obligations hereunder for purposes of Section 6.01(a)(iii) hereof until 180 days after the receipt of the written notice delivered thereunder. To the extent any information is not provided within the time periods specified in this Section 4.03 and such information is subsequently provided, Parent will be deemed to have satisfied its obligations with respect thereto at such time and any Default with respect thereto shall be deemed to have been cured. Notwithstanding anything to the contrary set forth above, if Parent has furnished the Holders of Notes or filed with the SEC the reports described in the preceding paragraphs with respect to financial information relating a parent entity of Parent (“Parent Entity”) that owns 100% of the common equity interests of Parent and unconditionally guarantees payment of the Notes, Parent shall be deemed to the Issuer by furnishing financial information relating to a direct or indirect parent companybe in compliance with this section 4.03; provided that, if and for the financial information so long as such parent company shall have Independent Assets or Operations (as defined below)furnished relates to any Parent Entity, the same is accompanied by consolidating information that explains in reasonable detail (including select quantitative metrics) the differences between the information relating to such parent companyParent Entity or Parent Entities, on the one hand, and the information relating to the Issuer and its Restricted Subsidiaries on a stand-alone standalone basis, on the other hand. “Independent Assets or Operations” meansFor the avoidance of doubt, with respect the consolidating information referred to any such parent company, that such parent company’s total assets, revenues, income from continuing operations before income taxes and cash flows from operating activities (excluding in each case amounts related to its investment in the Issuer and proviso in the Restricted Subsidiaries), determined in accordance with GAAP and as shown on the most recent balance sheet of such parent company, is more than 3.0% of such parent company’s corresponding consolidated amountpreceding sentence need not be audited.
Appears in 1 contract
Reports and Other Information. (a) Notwithstanding that the Issuer may Whether or not be Parent is subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act or otherwise report on an annual and quarterly basis on forms provided for such annual and quarterly reporting pursuant to rules and regulations promulgated by the SECAct, the Issuer so long as any Notes are outstanding, Parent shall furnish to the Trustee and Holders of the Notes (without exhibits) or post on its website (which may be password protected so long as the password is made promptly available by the Issuer to the Holders, research analysts and prospective purchasers upon request) no later than 15 days after the dates specified below:
Trustee: (1) within 90 days after the end of each fiscal year (beginning with the fiscal year ending after the Issue Date)end of Parent, annual reports containing substantially all of the financial information that would be required to be contained in an Annual Report annual report on Form 10-K if K, or any successor or comparable form, filed with the Issuer had been SEC, including a reporting company under “Management’s Discussion and Analysis of Financial Condition and Results of Operations” and a report on the Exchange Act (but only to the extent similar information is included in the Offering Memorandum)annual financial statements of Parent’s independent registered public accounting firm; provided, that the Issuer shall not be required to provide the information otherwise required to be presented by reporting companies under the Exchange Act pursuant to Part III of Form 10-K except for such information as would be required by Item 401 of Regulation S-K (other than the information required by subsections (c) and (g) of such item), Item 403(a) of Regulation S-K and Item 404 of Regulation S-K (assuming a transaction threshold of $2,500,000 rather than $120,000 and other than information with respect to employment and compensation arrangements and the information required by Item 404(b));
(2) within 45 days after the end of each of the first three fiscal quarters of each fiscal yearyear of Parent, reports containing substantially all of the financial information that would be required to be contained in a Quarterly Report quarterly report on Form 10-Q if Q, or any successor or comparable form, filed with the Issuer had been a reporting company under the Exchange Act (but only to the extent similar information is included in the Offering Memorandum)SEC; and
and (3) within the later of 15 days ten Business Days after the occurrence of such an event, the specified event or within five (5) Business Days of the date on which an event information that would have been be required to be reported on a Form 8-K (as contained in effect on filings with the Issue Date), information pursuant to Items 1.01 (Entry into a Material Definitive Agreement), 1.02 (Termination of a Material Definitive Agreement), 1.03 (Bankruptcy or Receivership), 2.01 (Completion of Acquisition or Disposition of Assets), 2.04 (Triggering Events that Accelerate or Increase a Direct Financial Obligation or an Obligation under an Off-Balance Sheet Arrangement), 2.06 (Material Impairment), 4.01 (Changes in Registrant’s Certifying Accountants), 4.02 (Non-Reliance on Previously Issued Financial Statements or a Related Audit Report or Completed Interim Review), 5.01 (Changes in Control of Registrant), 5.02(a), (b) or (c) (Departure of Directors or Principal Officers; Election of Directors; Appointment of Principal Officers; Compensation Arrangements of Certain Officers) (other than any information relating to compensation arrangements with any directors or officers) and 9.01(a) (Financial Statements and Exhibits) (but only with respect to historical financial statements relating to transactions required to be reported pursuant to Item 2.01 and involving acquisitions of Persons that had revenues in excess of $500,000,000 for the last four completed fiscal quarters prior to the consummation of the acquisition) of a Current Report SEC on Form 8-K under Items 1.01, 1.02, 1.03, 2.01, 2.05, 2.06, 4.01, 4.02, 5.01 and 5.02(b), 5.02(c) and 5.02(d) (as in effect other than with respect to information required or contemplated by Item 402 of the Issue Date)Regulation S-K) if Parent were required to file such reports; provided, however, that (a) no such current report or information will shall be required to be so furnished if the Issuer Parent determines in its good faith judgment that such event is not material to the Holders or the business, assets, operations operations, financial position or financial condition prospects of the Issuer Parent and its Restricted Subsidiaries, taken as a whole and (b) trade secrets and whole; provided further that the foregoing shall not obligate Parent to make available copies of any agreements, financial statements or other confidential information items that is competitively sensitive in the good faith and reasonable determination of the Issuer may would be excluded from disclosures.required to be filed as exhibits to a current report on Form 8-K.
(b) The reports required pursuant to clauses (1)Notwithstanding the foregoing, (2) and (3) of Section 4.03(a) Parent will not be required to comply with furnish any information, certificates or reports required by (i) Section 302, Section 404 or Section 906 of the Xxxxxxxx-Xxxxx Act of 2002, or related Items 307 or 308 of Regulation S-K, (ii) related Items 307 and 308 Regulation G or Item 10(e) of Regulation S-K promulgated by the SEC, (iii) Item 10(e) of Regulation S-K (SEC with respect to any non-GAAP generally accepted accounting principles financial measures contained thereintherein or (iii) or any comparable successor provision Rule 3-09 and (iv) 3-10 of Regulation S-X Rule 3-10.X.
(c) So long If Parent is not subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act, Parent shall deliver such information and such reports to any Holder of a Note and, upon request, to any beneficial owner of the Notes, in each case by posting such information on password-protected website which will require a confidentiality acknowledgment, and will make such information readily available to any prospective investor in the Notes that certifies that it is an eligible purchaser of the Notes, any securities analyst (to the extent providing analysis of investment in the Notes) or any market maker in the Notes, in each case who (i) agrees to treat such information as confidential or (ii) accesses such information on such password-protected website which will require a confidentiality acknowledgment; provided that Parent shall post such information thereon and make readily available any Notes are outstandingpassword or other login information to any such prospective investor in the Notes, securities analyst (to the Issuer extent providing analysis of investment in the Notes) or market maker in the Notes. Parent will also:
hold a quarterly conference call for all Holders and securities analysts (1to the extent providing analysis of investment in the Notes) issue a press release to an internationally recognized wire service no fewer than three discuss such financial information within ten Business Days prior to the delivery after distribution of such financial information or posting otherwise providing substantially comparable availability of the annual and quarterly reports required by clauses (1) and (2) of Section 4.03(a) announcing the date on which such reports will (as determined by Parent in good faith) (it being understood that, without limitation, making such reports available on Bloomberg or another private electronic information service shall constitute substantially comparable availability); it being understood that any customary quarterly earnings calls with public equity holders shall be made available deemed to the Holders and directing Holders, research analysts and prospective purchasers to contact the investor relations office of the Issuer to obtain copies of constitute such reports;
(2) maintain a website (which may be password protected so long as the password is made promptly available by the Issuer to Holders, research analysts and prospective purchasers) to which all of the reports and press releases required by this Section 4.03 are posted; and
(3) host and participate in customary quarterly conference calls (which may be a single conference call together with investors holding other for all Holders and such securities of the Issuer and/or its Restricted Subsidiaries and/or any direct or indirect parent of the Issuer) to discuss operating results and related matters. The Issuer shall issue a press release which will provide the date and time of any such call and will direct Holders, prospective purchasers and research analysts to contact the investor relations office of the Issuer to obtain access to the conference callanalysts; provided, however, that if Parent is subject to the Issuer shall reporting requirements of Section 13 or 15(d) of the Exchange Act and has timely filed all applicable periodic reports required thereby, Parent will not be required to undertake the actions set forth hold such a quarterly conference call so long as Parent makes one or more Officers available during normal business hours to answer any reasonable questions of Holders and security analysts in clauses (1), (2) and (3) respect of this Section 4.03(c) at any time that the Issuer or any direct or indirect parent thereof is otherwise undertaking similar actions on behalf of, and making similar information available to, investors holding other securities of the Issuer or any direct or indirect parent thereof; provided, further, that such information described in the immediately preceding proviso is made available to the Holdersfinancial information.
(d) In addition, to To the extent not satisfied by the foregoing, the Issuer will, for so long as any Notes are outstanding, Parent will also furnish to Holders Holders, securities analysts (to the extent providing analysis of investment in the Notes) and to prospective purchasers, investors in the Notes upon their request, request the information required to be delivered pursuant to Rule 144A(d)(4) under the Securities Act, so long as the Notes are not freely transferable under the Securities Act.
(e) The Issuer may satisfy If Parent has designated any of its obligations in Subsidiaries as an Unrestricted Subsidiary and if any such Unrestricted Subsidiary or group of Unrestricted Subsidiaries, if taken together as one Subsidiary, would constitute a Significant Subsidiary of Parent, then the annual and quarterly information required by clauses (a)(1) and (2) of this Section 4.03 with respect to financial information relating to the Issuer by furnishing financial information relating to 4.02 shall include a direct or indirect parent company; provided thatreasonably detailed presentation, if and for so long as such parent company shall have Independent Assets or Operations (as defined below), the same is accompanied by consolidating information that explains in reasonable detail the differences between the information relating to such parent company, either on the one handface of the financial statements or in the footnotes thereto, of the financial condition and the information relating to results of operations of the Issuer and its Restricted Subsidiaries on a stand-alone basis, on separate from the other handfinancial condition and results of operations of such Unrestricted Subsidiaries.
(f) Parent will be deemed to have furnished the reports referred to in Section 4.02(a) if Parent has filed reports containing such information with the SEC. “Independent Assets or Operations” means, with respect The Trustee shall have no duty to monitor whether any such parent companyfilings have been made.
(g) Delivery of such reports, that such parent company’s total assets, revenues, income from continuing operations before income taxes information and cash flows from operating activities (excluding in each case amounts related documents to its investment in the Issuer Trustee is for informational purposes only and the Restricted Subsidiaries), determined in accordance with GAAP and as shown on the most recent balance sheet Trustee’s receipt of such parent companyshall not constitute actual or constructive knowledge or notice of any information contained therein or determinable from information contained therein, including any default or the Issuer’s compliance with any of its covenants hereunder (as to which the Trustee is more than 3.0% of such parent companyentitled to rely exclusively on an Officer’s corresponding consolidated amountCertificate).
Appears in 1 contract
Samples: Indenture (Kronos Worldwide Inc)
Reports and Other Information. (a) Notwithstanding that Whether or not the Issuer may not be is subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act or otherwise report on an annual and quarterly basis on forms provided for such annual and quarterly reporting pursuant to rules and regulations promulgated by the SECAct, the Issuer shall furnish to the Trustee and Holders of the Notes (without exhibits) or post on its website (which may be password protected so long as the password is made promptly available by the Issuer to the Holders, research analysts and prospective purchasers upon request) no later than 15 days after the dates specified below:
(1) within 90 days after the end of each fiscal year (beginning with the fiscal year ending after the Issue Date), annual reports containing substantially all of the information required to be contained in an Annual Report on Form 10-K if the Issuer had been a reporting company under the Exchange Act (but only to the extent similar information is included in the Offering Memorandum); provided, that the Issuer shall not be required to provide the information otherwise required to be presented by reporting companies under the Exchange Act pursuant to Part III of Form 10-K except for such information as would be required by Item 401 of Regulation S-K (other than the information required by subsections (c) and (g) of such item), Item 403(a) of Regulation S-K and Item 404 of Regulation S-K (assuming a transaction threshold of $2,500,000 rather than $120,000 and other than information with respect to employment and compensation arrangements and the information required by Item 404(b));
(2) within 45 days after the end of each of the first three fiscal quarters of each fiscal year, reports containing substantially all of the information required to be contained in a Quarterly Report on Form 10-Q if the Issuer had been a reporting company under the Exchange Act (but only to the extent similar information is included in the Offering Memorandum); and
(3) within the later of 15 days after the occurrence of the specified event or within five (5) Business Days of the date on which an event would have been required to be reported on a Form 8-K (as in effect on the Issue Date), information pursuant to Items 1.01 (Entry into a Material Definitive Agreement), 1.02 (Termination of a Material Definitive Agreement), 1.03 (Bankruptcy or Receivership), 2.01 (Completion of Acquisition or Disposition of Assets), 2.04 (Triggering Events that Accelerate or Increase a Direct Financial Obligation or an Obligation under an Off-Balance Sheet Arrangement), 2.06 (Material Impairment), 4.01 (Changes in Registrant’s Certifying Accountants), 4.02 (Non-Reliance on Previously Issued Financial Statements or a Related Audit Report or Completed Interim Review), 5.01 (Changes in Control of Registrant), 5.02(a), (b) or (c) (Departure of Directors or Principal Officers; Election of Directors; Appointment of Principal Officers; Compensation Arrangements of Certain Officers) (other than any information relating to compensation arrangements with any directors or officers) and 9.01(a) (Financial Statements and Exhibits) (but only with respect to historical financial statements relating to transactions required to be reported pursuant to Item 2.01 and involving acquisitions of Persons that had revenues in excess of $500,000,000 for the last four completed fiscal quarters prior to the consummation of the acquisition) of a Current Report on Form 8-K (as in effect of the Issue Date); provided, that (a) no such report or information will be required to be so furnished if the Issuer determines in good faith that such event is not material to the Holders or the business, assets, operations or financial condition of the Issuer and its Restricted Subsidiaries, taken as a whole and (b) trade secrets and other confidential information that is competitively sensitive in the good faith and reasonable determination of the Issuer may be excluded from disclosures.
(b) The reports required pursuant to clauses (1), (2) and (3) of Section 4.03(a) will not be required to comply with (i) Section 302, Section 404 or Section 906 of the Xxxxxxxx-Xxxxx Act of 2002, (ii) related Items 307 and 308 of Regulation S-K promulgated by the SEC, (iii) Item 10(e) of Regulation S-K (with respect to any non-GAAP financial measures contained therein) or any comparable successor provision and (iv) Regulation S-X Rule 3-10.
(c) So long as any Notes are outstanding, the Issuer will also:furnish to the Holder, within the time periods specified in the SEC’s rules and regulations (as in effect on the Issue Date):
(1) issue a press release to an internationally recognized wire service no fewer than three Business Days prior to the delivery or posting of the (x) all annual and quarterly reports financial statements that would be required by clauses to be contained in a filing with the SEC on Forms 10-K and 10-Q (1or any successor or comparable forms) of the Issuer, if the Issuer were required to file such forms, plus a “Management’s Discussion and Analysis of Financial Condition and Results of Operations”; and (2y) of Section 4.03(a) announcing the date on which such reports will be made available with respect to the Holders and directing Holdersannual financial statements only, research analysts and prospective purchasers to contact a report on the investor relations office of annual financial statements by the Issuer to obtain copies of such reports;Issuer’s independent registered public accounting firm; and
(2) maintain a website all information that would be required to be contained in filings with the SEC on Form 8-K under Items 1.01 (which may including furnishing any material debt agreements that would be password protected so long required to be described in such Form 8-K), 1.02, 1.03, 2.01, 2.05, 2.06, 4.01, 4.02, 5.01 and 5.02(b) and (c) (other than with respect to information otherwise required or contemplated by Item 402 of Regulation S-K) as in effect on the password is made promptly available by Issue Date if the Issuer were required to Holdersfile such reports; provided, research analysts and prospective purchasers) however, that no such current report shall be required to which all include as an exhibit, or to include a summary of the reports terms of, any employment or compensatory arrangement agreement, plan or understanding between the Issuer (or any of its Subsidiaries) and press releases required by this Section 4.03 are posted; and
(3) host and participate in customary quarterly conference calls (which may be a single conference call together with investors holding other securities any director, manager or executive officer, of the Issuer and/or (or any of its Restricted Subsidiaries and/or any direct or indirect parent Subsidiaries). All such annual reports shall be furnished within 90 days after the end of the Issuer) fiscal year to discuss operating results which they relate, and related mattersall such quarterly reports shall be furnished within 45 days after the end of the fiscal quarter to which they relate. All such current reports shall be furnished within the time periods specified in the SEC’s rules and regulations for reporting companies under the Exchange Act. The Issuer shall issue make available such information and such reports (as well as the details regarding the conference call described below) to the Trustee under this Indenture, to any Holder and, upon request, to any beneficial owner of the Notes, in each case, by (i) filing such reports with the SEC (and such reports are publicly available) or (ii) posting such reports on the Issuer’s website and issuing a press release which in respect thereof. The Issuer will provide the date hold a quarterly conference call for all Holders and time of any such call and will direct Holders, prospective purchasers and research securities analysts to contact the investor relations office of the Issuer to obtain access (to the conference call; provided, that the Issuer shall not be required to undertake the actions set forth in clauses (1), (2) and (3) extent providing analysis of this Section 4.03(c) at any time that the Issuer or any direct or indirect parent thereof is otherwise undertaking similar actions on behalf of, and making similar information available to, investors holding other securities of the Issuer or any direct or indirect parent thereof; provided, further, that such information described investment in the immediately preceding proviso is made available notes) to the Holdersdiscuss such financial information (including a customary Q&A session) no later than five (5) Business Days after distribution of such financial information.
(db) In additionThe Issuer shall provide S&P and Xxxxx’x (and their respective successors) with information on a periodic basis as S&P or Xxxxx’x, as the case may be, shall reasonably require in order to maintain public ratings of the Notes. To the extent not satisfied by the foregoing, the Issuer will, for so long as any Notes are outstanding, shall also furnish to Holders Holders, securities analysts (to the extent providing analysis of investment in the notes) and to prospective purchasers, investors in the Notes upon their request, request the information required to be delivered pursuant to Rule 144A(d)(4) under the Securities Act of 1933, as amended (the “Securities Act”), so long as the Notes are not freely transferable under the Securities Act.
(ec) The Issuer may satisfy its obligations in this Section 4.03 with respect to financial information relating to If the Issuer has designated any of its Subsidiaries as an Unrestricted Subsidiary and if any such Unrestricted Subsidiary or group of Unrestricted Subsidiaries, if taken together as one Subsidiary, would constitute a Significant Subsidiary of the Issuer, then the annual and quarterly information required by furnishing clause (1) of the first paragraph of this covenant shall include a reasonably detailed presentation, either on the face of the financial statements or in the footnotes thereto, of the financial condition and results of operations of the Issuer and its Restricted Subsidiaries separate from the financial condition and results of operations of such Unrestricted Subsidiaries.
(d) Notwithstanding the foregoing, the financial statements, information relating and other documents required to a be provided as described above, may be those of (i) the Issuer or (ii) any direct or indirect parent companyof the Issuer rather than those of the Issuer; provided that, if and for so long as such parent company shall have Independent Assets or Operations (as defined below), that the same is accompanied by consolidating information that explains in reasonable detail the differences between the information relating to such parent companyparent, on the one hand, and the information relating to the Issuer and its the Restricted Subsidiaries on a stand-alone standalone basis, on the other hand. “Independent Assets Delivery of reports, information and documents to the Trustee is for informational purposes only and its receipt of such reports shall not constitute constructive notice of any information contained therein or Operations” meansdeterminable from information contained therein, including our compliance with any of our covenants under this Indenture or the Notes (as to which the Trustee is entitled to rely exclusively on Officer’s Certificates). The Trustee shall not be obligated to monitor or confirm, on a continuing basis or otherwise, our compliance with the covenants or with respect to any such parent company, that such parent company’s total assets, revenues, income from continuing operations before income taxes and cash flows from operating activities (excluding in each case amounts related to its investment in reports or other documents filed with the Issuer and the Restricted Subsidiaries), determined in accordance with GAAP and as shown on the most recent balance sheet of such parent company, is more than 3.0% of such parent company’s corresponding consolidated amountSEC under this Indenture.
Appears in 1 contract
Samples: Indenture (BWX Technologies, Inc.)
Reports and Other Information. (a) Notwithstanding that the Issuer may not be subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act or otherwise report on an annual and quarterly basis on forms provided for such annual and quarterly reporting pursuant to rules and regulations promulgated by the SEC, the Issuer shall furnish to the Trustee and Holders of the Notes (without exhibits) or post on its website (which may be password protected so long as the password is made promptly available by the Issuer to the Holders, research analysts and prospective purchasers upon request) no later than 15 days after the dates specified below:
(1) within 90 days after the end of each fiscal year (beginning with the fiscal year ending after the Issue Date), annual reports containing substantially all of the information required to be contained in an Annual Report on Form 10-K if the Issuer had been a reporting company under the Exchange Act (but only to the extent similar information is included in the Offering Memorandum); provided, that the Issuer shall not be required to provide the information otherwise required to be presented by reporting companies under the Exchange Act pursuant to Part III of Form 10-K except for such information as would be required by Item 401 of Regulation S-K (other than the information required by subsections (c) and (g) of such item), Item 403(a) of Regulation S-K and Item 404 of Regulation S-K (assuming a transaction threshold of $2,500,000 2,000,000 rather than $120,000 and other than information with respect to employment and compensation arrangements and the information required by Item 404(b));
(2) within 45 days after the end of each of the first three fiscal quarters of each fiscal yearyear (beginning with the fiscal quarter ending March 31, 2017), reports containing substantially all of the information required to be contained in a Quarterly Report on Form 10-Q if the Issuer had been a reporting company under the Exchange Act (but only to the extent similar information is included in the Offering Memorandum); and
(3) within the later of 15 days after the occurrence of the specified event or within five (5) Business Days of the date on which an event would have been required to be reported on a Form 8-K (as in effect on the Issue Date), information pursuant to Items 1.01 (Entry into a Material Definitive Agreement), 1.02 (Termination of a Material Definitive Agreement), 1.03 (Bankruptcy or Receivership), 2.01 (Completion of Acquisition or Disposition of Assets), 2.04 (Triggering Events that Accelerate or Increase a Direct Financial Obligation or an Obligation under an Off-Balance Sheet Arrangement), 2.06 (Material Impairment), 4.01 (Changes in Registrant’s Certifying Accountants), 4.02 (Non-Reliance on Previously Issued Financial Statements or a Related Audit Report or Completed Interim Review), 5.01 (Changes in Control of Registrant), ) 5.02(a), (b) or ), (c) (Departure of Directors or Principal Officers; Election of Directors; Appointment of Principal Officers; Compensation Arrangements of Certain Officers) (other than any information relating to compensation arrangements with any directors or officers) and 9.01(a) (Financial Statements and Exhibits) (Exhibits but only with respect to historical financial statements relating to transactions required to be reported pursuant to Item 2.01 and involving acquisitions of Persons that had revenues in excess of $500,000,000 200,000,000 for the last four completed fiscal quarters prior to the consummation of the acquisition) of a Current Report on Form 8-K (as in effect of the Issue Date); provided, that (a) no such report or information will be required to be so furnished if the Issuer determines in good faith that such event is not material to the Holders or the business, assets, operations or financial condition of the Issuer and its Restricted Subsidiaries, taken as a whole and (b) trade secrets and other confidential information that is competitively sensitive in the good faith and reasonable determination of the Issuer may be excluded from disclosures.
(b) The reports required pursuant to clauses (1), (2) and (3) of Section 4.03(a) will not be required to comply with (i) Section 302, Section 404 or Section 906 of the Xxxxxxxx-Xxxxx Act of 2002, (ii) related Items 307 and 308 of Regulation S-K promulgated by the SEC, (iii) Item 10(e) of Regulation S-K (with respect to any non-GAAP financial measures contained therein) or any comparable successor provision and (iv) Regulation S-X Rule 3-10.
(c) So long as any Notes are outstanding, the Issuer will also:
(1) issue a press release to an internationally recognized wire service no fewer than three Business Days prior to the delivery or posting of the annual and quarterly reports required by clauses (1) and (2) of Section 4.03(a) announcing the date on which such reports will be made available to the Holders and directing Holders, research analysts and prospective purchasers to contact the investor relations office of the Issuer to obtain copies of such reports;
(2) maintain a website (which may be password protected so long as the password is made promptly available by the Issuer to Holders, research analysts and prospective purchasers) to which all of the reports and press releases required by this Section 4.03 are posted; and
(3) host and participate in customary quarterly conference calls (which may be a single conference call together with investors holding other securities of the Issuer and/or its Restricted Subsidiaries and/or any direct or indirect parent of the Issuer) to discuss operating results and related matters. The Issuer shall issue a press release which will provide the date and time of any such call and will direct Holders, prospective purchasers and research analysts to contact the investor relations office of the Issuer to obtain access to the conference call; provided, that the Issuer shall not be required to undertake the actions set forth in clauses (1), (2) and (3) of this Section 4.03(c) at any time that the Issuer or any direct or indirect parent thereof is otherwise undertaking similar actions on behalf of, and making similar information available to, investors holding other securities of the Issuer or any direct or indirect parent thereof; provided, further, that such information described in the immediately preceding proviso is made available to the Holders.
(d) In addition, to the extent not satisfied by the foregoing, the Issuer will, for so long as any Notes are outstanding, furnish to Holders and to prospective purchasers, upon their request, the information required to be delivered pursuant to Rule 144A(d)(4) under the Securities Act.
(e) The Issuer may satisfy its obligations in this Section 4.03 with respect to financial information relating to the Issuer by furnishing financial information relating to a direct or indirect parent company; provided that, if and for so long as such parent company shall have Independent Assets or Operations (as defined below), the same is accompanied by consolidating information that explains in reasonable detail the differences between the information relating to such parent company, on the one hand, and the information relating to the Issuer and its Restricted Subsidiaries on a stand-alone basis, on the other hand. “Independent Assets or Operations” means, with respect to any such parent company, that such parent company’s total assets, revenues, income from continuing operations before income taxes and cash flows from operating activities (excluding in each case amounts related to its investment in the Issuer and the Restricted Subsidiaries), determined in accordance with GAAP and as shown on the most recent balance sheet of such parent company, is more than 3.0% of such parent company’s corresponding consolidated amount.
Appears in 1 contract
Reports and Other Information. (a) Notwithstanding that So long as any Notes are outstanding, the Issuer may not be subject Company shall furnish to the reporting requirements of Section 13 or 15(dHolders (with a copy to the Trustee):
(1) of the Exchange Act or otherwise report on an (A) all annual and quarterly basis financial statements substantially in forms that would be required to be contained in a filing with the SEC on forms provided Forms 10-K and 10-Q of the Company, if the Company were required to file such forms, plus a “Management’s Discussion and Analysis of Financial Condition and Results of Operations” and (B) with respect to the annual financial statements only, a report on the annual financial statements by the Company’s independent registered public accounting firm; and
(2) promptly after the occurrence of an event required to be therein reported, such other information containing substantially the same information that would be required to be contained in filings with the SEC on Form 8-K under Items 1.01, 1.02, 1.03, 2.01, 2.05, 2.06, 4.01, 4.02, 5.01 and 5.02(b) and (c) (other than with respect to information otherwise required or contemplated by Item 402 of Regulation S-K promulgated by the SEC) as in effect on the Effective Date if the Company were required to file such reports; provided, however, that no such current report will be required to include as an exhibit, or to include a summary of the terms of, any employment or compensatory arrangement agreement, plan or understanding between the Company (or any of its Subsidiaries) and any director, manager or executive officer of the Company (or any of its Subsidiaries); provided, however, that (i) in no event shall such reports be required to comply with Rule 3-10, 13-01 or 13-02 of Regulation S-X promulgated by the SEC or contain separate financial statements for such annual and quarterly reporting pursuant the Company, the Guarantors or other Subsidiaries the shares of which are pledged to rules and regulations secure the Notes or any Guarantee that would be required under Rule 3-09, 3-10, 3-16, 13-01 or 13-02 of Regulation S-X, respectively, promulgated by the SEC, the Issuer (ii) in no event shall furnish to the Trustee and Holders of the Notes (without exhibits) or post on its website (which may such reports be password protected so long as the password is made promptly available by the Issuer to the Holders, research analysts and prospective purchasers upon request) no later than 15 days after the dates specified below:
(1) within 90 days after the end of each fiscal year (beginning with the fiscal year ending after the Issue Date), annual reports containing substantially all of the information required to be contained in an Annual Report on Form 10-K if the Issuer had been a reporting company comply with Regulation G under the Exchange Act (but only to the extent similar information is included in the Offering Memorandum); provided, that the Issuer shall not be required to provide the information otherwise required to be presented by reporting companies under the Exchange Act pursuant to Part III of Form 10-K except for such information as would be required by or Item 401 of Regulation S-K (other than the information required by subsections (c) and (g) of such item), Item 403(a10(e) of Regulation S-K and Item 404 of Regulation S-K (assuming a transaction threshold of $2,500,000 rather than $120,000 and other than information promulgated by the SEC with respect to employment and compensation arrangements and the information required by Item 404(b));
any non-GAAP financial measures contained therein, (iii) no such reports referenced under clause (2) within 45 days after the end of each of the first three fiscal quarters of each fiscal year, reports containing substantially all of the information required to be contained in a Quarterly Report on Form 10-Q if the Issuer had been a reporting company under the Exchange Act (but only to the extent similar information is included in the Offering Memorandum); and
(3) within the later of 15 days after the occurrence of the specified event or within five (5) Business Days of the date on which an event would have been required to be reported on a Form 8-K (as in effect on the Issue Date), information pursuant to Items 1.01 (Entry into a Material Definitive Agreement), 1.02 (Termination of a Material Definitive Agreement), 1.03 (Bankruptcy or Receivership), 2.01 (Completion of Acquisition or Disposition of Assets), 2.04 (Triggering Events that Accelerate or Increase a Direct Financial Obligation or an Obligation under an Off-Balance Sheet Arrangement), 2.06 (Material Impairment), 4.01 (Changes in Registrant’s Certifying Accountants), 4.02 (Non-Reliance on Previously Issued Financial Statements or a Related Audit Report or Completed Interim Review), 5.01 (Changes in Control of Registrant), 5.02(a), (b) or (c) (Departure of Directors or Principal Officers; Election of Directors; Appointment of Principal Officers; Compensation Arrangements of Certain Officers) (other than any information relating to compensation arrangements with any directors or officers) and 9.01(a) (Financial Statements and Exhibits) (but only with respect to historical financial statements relating to transactions required to be reported pursuant to Item 2.01 and involving acquisitions of Persons that had revenues in excess of $500,000,000 for the last four completed fiscal quarters prior to the consummation of the acquisition) of a Current Report on Form 8-K (as in effect of the Issue Date); provided, that (a) no such report or information will above shall be required to be so furnished if the Issuer Company determines in its good faith judgment that such event is not material to the Holders or the business, assets, operations or financial condition position of the Issuer Company and its the Restricted Subsidiaries, taken as a whole and whole, (biv) trade secrets and other confidential in no event shall such reports be required to include any information that is competitively sensitive not otherwise similar to information included in the good faith Offering Circular, other than with respect to reports provided under clause (2) above and reasonable determination (v) in no event shall reports referenced in clause (2) above be required to include as an exhibit copies of any agreements, financial statements or other items that would be required to be filed as exhibits to a current report on Form 8-K except for (x) agreements evidencing material Indebtedness and (y) historical and pro forma financial statements to the extent reasonably available. All such annual reports shall be furnished within 120 days after the end of the Issuer may fiscal year to which they relate, and all such quarterly reports shall be excluded furnished within 60 days after the end of the fiscal quarter to which they relate. At any time that any of the Company’s Subsidiaries are Unrestricted Subsidiaries and if any such Unrestricted Subsidiary or group of Unrestricted Subsidiaries, if taken together as one Subsidiary, would constitute a Significant Subsidiary of the Company, then the quarterly and annual financial information required by the preceding paragraph will include a reasonably detailed presentation in the “Management’s Discussion and Analysis of Financial Condition and Results of Operations” or other comparable section, of the financial condition and results of operations of the Company and Restricted Subsidiaries separate from disclosuresthe financial condition and results of operations of such Unrestricted Subsidiaries of the Company. Notwithstanding any provision to the contrary in this Indenture, to the extent any of the information required to be furnished pursuant to Section 4.03(a) is not so furnished within the time periods specified above and is subsequently furnished, the Company will be deemed to have satisfied its obligations with respect thereto with effect from such time and any Default or Event of Default with respect thereto shall be deemed to have been cured with effect from such time.
(b) The reports required pursuant to clauses (1), (2) and (3) of Section 4.03(a) will not be required to comply with (i) Section 302, Section 404 or Section 906 of the Xxxxxxxx-Xxxxx Act of 2002, (ii) related Items 307 and 308 of Regulation S-K promulgated by the SEC, (iii) Item 10(e) of Regulation S-K (with respect to any non-GAAP financial measures contained therein) or any comparable successor provision and (iv) Regulation S-X Rule 3-10.
(c) So long as any Notes are outstanding, the Issuer Company shall also make available such information and such reports to any Holder and, upon request, to any beneficial owner of the Notes, securities analysts providing analysis of investment in the Notes and market makers, in each case by posting such information on its website, on Intralinks or any comparable password-protected online data system which will also:
require a confidentiality acknowledgment, and will make such information readily available to any Holder, beneficial owners of Notes, any prospective investor in the Notes, any securities analyst (1) issue a press release to an internationally recognized wire service no fewer than three Business Days prior to the delivery extent providing analysis of investment in the Notes) or posting of any market maker in the annual and quarterly reports required by clauses (1) and (2) of Section 4.03(a) announcing the date Notes who agrees to treat such information as confidential or accesses such information on which such reports will be made available to the Holders and directing Holders, research analysts and prospective purchasers to contact the investor relations office of the Issuer to obtain copies of such reports;
(2) maintain a website (which may be password Intralinks or any comparable password-protected so long as the password is made promptly available by the Issuer to Holders, research analysts and prospective purchasers) to which all of the reports and press releases required by this Section 4.03 are posted; and
(3) host and participate in customary quarterly conference calls (which may be a single conference call together with investors holding other securities of the Issuer and/or its Restricted Subsidiaries and/or any direct or indirect parent of the Issuer) to discuss operating results and related matters. The Issuer shall issue a press release online data system which will provide require a confidentiality acknowledgment; provided that the date Company shall post such information thereon and time of make readily available any password or other login information to any such call and will direct HoldersHolder, beneficial owner of Notes, prospective purchasers and research analysts to contact the investor relations office of the Issuer to obtain access to the conference callinvestor, securities analyst or market maker; provided, however, the Company may deny access to any competitively-sensitive information otherwise to be provided pursuant to this paragraph to any such Holder, prospective investor, security analyst or market maker that is a competitor of the Company and its Subsidiaries to the extent that the Issuer shall not be required to undertake the actions set forth Company determines in clauses (1), (2) and (3) of this Section 4.03(c) at any time good faith that the Issuer or any direct or indirect parent thereof is otherwise undertaking similar actions on behalf of, provision of such information to such Person would be competitively harmful to the Company and making similar information available to, investors holding other securities of the Issuer or any direct or indirect parent thereofits Subsidiaries; provided, further, that such Holders, prospective investors, security analysts or market makers shall agree to (i) treat all such reports (and the information described contained therein) and information as confidential, (ii) not use such reports and the information contained therein for any purpose other than their investment or potential investment in the immediately preceding proviso is made available Notes (but shall be authorized to trade the HoldersCompany’s securities) and (iii) not publicly disclose any such reports (and the information contained therein).
(dc) In addition, to To the extent not satisfied by the foregoingthis Section 4.03, the Issuer will, for so long as any Notes are outstanding, Company shall furnish to Holders and to prospective purchasersinvestors, upon their request, the any information required to be delivered pursuant to Rule 144A(d)(4) under the Securities Act so long as the Notes are not freely transferable under the Securities Act.
(ed) The Issuer Company may satisfy its obligations in under this Section 4.03 with respect to financial information relating to the Issuer Company by furnishing financial information relating to a direct or indirect parent companyany Parent Entity (including, for the avoidance of doubt, any financial statement predecessor of such Parent Entity, as applicable) instead of the Company; provided thatthat to the extent financial information related to such Parent Entity (or predecessor) is provided, if and for so long as such parent company shall have Independent Assets or Operations (as defined below), the same information is accompanied by consolidating information selected financial metrics that explains show certain differences (in reasonable detail the differences Company’s sole discretion), between the information relating to of such parent companyParent Entity (or predecessor), on the one hand, and the information relating to the Issuer Company and its Restricted Subsidiaries on a stand-alone basis, on the other hand.
(e) The Company shall be deemed to have furnished the reports referred to in Sections 4.03(a)(i) and (ii) if the Company or any Parent Entity has filed reports containing such information with the SEC.
(f) Delivery of information and documents provided for under this Section 4.03 to the Trustee is for informational purposes only and the Trustee’s receipt of such shall not constitute actual or constructive notice of any information contained therein or determinable from information contained therein, including the Company’s compliance with any of their covenants hereunder (as to which the Trustee is entitled to rely exclusively on Officer’s Certificates). “Independent Assets Neither the Trustee nor the Notes Collateral Agent shall have any responsibility whatsoever to determine whether any filing or Operations” meansposting referred to in this Section 4.03 has occurred. The Trustee shall have no obligation to furnish any such reports, information or documents to any other Person or to determine if and when the Company’s or any Parent Entity’s financial statements are available and accessible electronically.
(g) Notwithstanding anything to the contrary set forth in this Section 4.03, if at any time the Company or any Parent Entity has made a good faith determination to file a registration statement with the SEC with respect to any such parent companyequity or debt securities, that such parent company’s total assetsthe Company will not be required to disclose any information or take any actions that, revenues, income from continuing operations before income taxes and cash flows from operating activities (excluding in each case amounts related to its investment in the Issuer and good faith view of the Restricted Subsidiaries)Company, determined in accordance with GAAP and as shown on would violate applicable securities laws or the most recent balance sheet of such parent company, is more than 3.0% of such parent companySEC’s corresponding consolidated amount“gun jumping” rules.
Appears in 1 contract
Samples: Indenture (MultiPlan Corp)
Reports and Other Information. (a) Notwithstanding that the Issuer may not be subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act or otherwise report on an annual and quarterly basis on forms provided for such annual and quarterly reporting pursuant to rules and regulations promulgated by the SECSo long as any Notes are Outstanding, the Issuer shall furnish to the Trustee and Holders of the Notes (without exhibits) or post on its website (which may be password protected so long as the password is made promptly available by the Issuer to the Holders, research analysts and prospective purchasers upon request) no later than 15 days after the dates specified below:
(1) within 90 days after the end of each fiscal year (beginning with the fiscal year ending after the Issue Date), x) all annual reports containing and quarterly financial statements substantially all of the information in forms that would be required to be contained in an Annual Report a filing with the SEC on Form Forms 10-K if and 10-Q of the Issuer, plus a “Management’s Discussion and Analysis of Financial Condition and Results of Operations,” and (y) with respect to the annual financial statements only, a report on the annual financial statements by the Issuer’s independent registered public accounting firm; and
(2) promptly after the occurrence of an event required to be therein reported, such other information containing substantially the same information that would be required to be contained in filings with the SEC on Form 8-K under Items 1.01, 1.02, 1.03, 2.01, 2.03, 2.04, 2.05, 2.06, 3.01, 4.01, 4.02(a) and (b), 5.01 and 5.02; provided, however, that no such current report will be required to include as an exhibit, or to include a summary of the terms of, any employment or compensatory arrangement agreement, plan or understanding between the Issuer had been a reporting company (or any of its Subsidiaries) and any director, manager or executive officer, of the Issuer (or any of its Subsidiaries); provided, however, that (i) in no event shall such information and reports be required to comply with Rule 3-10 of Regulation S-X promulgated by the SEC or contain any financial statements of unconsolidated Subsidiaries or 50% or less owned Persons under Rule 3-09 of Regulation S-X or any schedules required by Regulation S-X or contain separate financial statements for the Issuer, the Guarantors or other Affiliates the shares of which are pledged to secure the Notes or any Note Guarantee that would be required under Rule 3-10 of Regulation S-X or Rule 3-16 of Regulation S-X promulgated by the SEC, (ii) in no event shall such information and reports be required to comply with Regulation G under the Exchange Act (but only to the extent similar information is included in the Offering Memorandum); provided, that the Issuer shall not be required to provide the information otherwise required to be presented by reporting companies under the Exchange Act pursuant to Part III of Form 10-K except for such information as would be required by or Item 401 of Regulation S-K (other than the information required by subsections (c) and (g) of such item), Item 403(a10(e) of Regulation S-K and Item 404 of Regulation S-K (assuming a transaction threshold of $2,500,000 rather than $120,000 and other than information promulgated by the SEC with respect to employment any non-GAAP financial measures contained therein, (iii) in no event shall such information and compensation arrangements and the information required by Item 404(b));
(2) within 45 days after the end of each of the first three fiscal quarters of each fiscal year, reports containing substantially all of the information be required to be contained in a Quarterly Report on Form 10-Q if the Issuer had been a reporting company under the Exchange Act (but only include any information that is not otherwise similar to the extent similar information is currently included in the Offering Memorandum); and
(3) within the later of 15 days after the occurrence of the specified event or within five (5) Business Days of the date on which an event would have been required to be reported on a Form 8-K (as in effect on the Issue Date), information pursuant to Items 1.01 (Entry into a Material Definitive Agreement), 1.02 (Termination of a Material Definitive Agreement), 1.03 (Bankruptcy or Receivership), 2.01 (Completion of Acquisition or Disposition of Assets), 2.04 (Triggering Events that Accelerate or Increase a Direct Financial Obligation or an Obligation under an Off-Balance Sheet Arrangement), 2.06 (Material Impairment), 4.01 (Changes in Registrant’s Certifying Accountants), 4.02 (Non-Reliance on Previously Issued Financial Statements or a Related Audit Report or Completed Interim Review), 5.01 (Changes in Control of Registrant), 5.02(a), (b) or (c) (Departure of Directors or Principal Officers; Election of Directors; Appointment of Principal Officers; Compensation Arrangements of Certain Officers) (other than any information relating to compensation arrangements with any directors or officers) and 9.01(a) (Financial Statements and Exhibits) (but only with respect to historical financial statements relating to transactions required to be reported pursuant to Item 2.01 reports provided under Section 10.09(a)(2) above, and involving acquisitions of Persons that had revenues in excess of $500,000,000 for the last four completed fiscal quarters prior to the consummation of the acquisition) of a Current Report on Form 8-K (as in effect of the Issue Date); provided, that (aiv) no such report or information will and reports referenced under Section 10.09(a)(2) above shall be required to be so furnished if the Issuer determines in its good faith judgment that such event is not material to the Holders or the business, assets, operations or financial condition position of the Issuer and its Restricted Subsidiaries, taken as a whole whole. All such annual information and (b) trade secrets reports shall be furnished within 90 days after the end of the fiscal year to which they relate, and other confidential all such quarterly information shall be furnished within 45 days after the end of the fiscal quarter to which they relate. At any time that is competitively sensitive any of the Issuer’s Subsidiaries are Unrestricted Subsidiaries and if any such Unrestricted Subsidiary or group of Unrestricted Subsidiaries, if taken together as one Subsidiary, would hold in the good faith aggregate more than 5.0% of the Total Assets of the Issuer, then the quarterly and reasonable determination annual financial information required by the preceding paragraph will include a reasonably detailed presentation, either (i) on the face of the financial statements or in the footnotes thereto, (ii) in “Management’s Discussion and Analysis of Financial Condition and Results of Operations” or (iii) in any other comparable section, of the financial condition and results of operations of the Issuer and its Restricted Subsidiaries separate from the financial condition and results of operations of the Unrestricted Subsidiaries of the Issuer. The Issuer will make available such information and such reports (as well as the details regarding the conference call described below) to the Trustee under this Indenture, to any Holder of the Notes and, upon request, to any beneficial owner of the Notes, in each case by posting such information and reports on its website, on Intralinks or any comparable password-protected online data system which will require a confidentiality acknowledgment, and will make such information and reports readily available to any Holder of the Notes, any bona fide prospective investor in the Notes, any securities analyst (to the extent providing analysis of investment in the Notes) or any market maker in the Notes who agrees to treat such information as confidential or accesses such information and reports on Intralinks or any comparable password-protected online data system which will require a confidentiality acknowledgment; provided that the Issuer shall post such information and reports thereon and make readily available any password or other login information to any such Holder of the Notes, bona fide prospective investor, securities analyst or market maker; provided, further, that the Issuer may deny access to any competitively-sensitive information or reports otherwise to be excluded from disclosuresprovided pursuant to this paragraph to any such Holder, bona fide prospective investor, security analyst or market maker that is a competitor of the Issuer and its Subsidiaries to the extent that the Issuer determines in good faith that the provision of such information or reports to such Person would be competitively harmful to the Issuer and its Subsidiaries; and provided, further, that such Holders, bona fide prospective investors, security analysts or market makers shall agree to (i) treat all such reports (and the information contained therein) and information as confidential, (ii) not use such reports and the information contained therein for any purpose other than their investment or potential investment in the Notes and (iii) not publicly disclose any such reports (and the information contained therein).
(b) The reports required pursuant to clauses (1), (2) and (3) of Section 4.03(a) will not be required to comply with (i) Section 302, Section 404 or Section 906 of the Xxxxxxxx-Xxxxx Act of 2002, (ii) related Items 307 and 308 of Regulation S-K promulgated by the SEC, (iii) Item 10(e) of Regulation S-K (with respect to any non-GAAP financial measures contained therein) or any comparable successor provision and (iv) Regulation S-X Rule 3-10.
(c) So long as any Notes are outstandingOutstanding, the Issuer will shall also:
(1) after:
(A) furnishing to the Holders the annual and quarterly information and reports required by Section 10.09(a)(1), or
(B) furnishing to the Holders, at the option and in the sole discretion of the Issuer (who shall not be obligated to so furnish), summary condensed consolidated annual or quarterly income statement and balance sheet, as applicable, without notes thereto, and a summary discussion of the results of operations for the relevant reporting period, promptly hold a conference call to discuss such information and reports or summary information and the results of operations for the relevant reporting period (which conference call, for the avoidance of doubt, may be held prior to such time that the annual or quarterly information and reports required by Section 10.09(a)(1) are furnished to Holders); and
(2) issue a press release to an internationally the appropriate nationally recognized wire service no fewer than three Business Days services prior to the delivery or posting date of the annual and quarterly reports conference call required by clauses (1) and (2) of to be held in accordance with Section 4.03(a10.09(b)(1) announcing the time and date on which of such reports will be made available conference call and either including all information necessary to access the Holders and directing call or informing Holders, research bona fide prospective investors, market makers and securities analysts and prospective purchasers to contact the investor relations office of the Issuer to how they can obtain copies of such reports;
(2) maintain a website (which may be password protected so long as the password is made promptly available by the Issuer to Holders, research analysts and prospective purchasers) to which all of the reports and press releases required by this Section 4.03 are posted; and
(3) host and participate in customary quarterly conference calls (which may be a single conference call together with investors holding other securities of the Issuer and/or its Restricted Subsidiaries and/or any direct or indirect parent of the Issuer) to discuss operating results and related matters. The Issuer shall issue a press release which will provide the date and time of any such call and will direct Holders, prospective purchasers and research analysts to contact the investor relations office of the Issuer to obtain access to the conference call; provided, that the Issuer shall not be required to undertake the actions set forth in clauses (1), (2) and (3) of this Section 4.03(c) at any time that the Issuer or any direct or indirect parent thereof is otherwise undertaking similar actions on behalf of, and making similar information available to, investors holding other securities of the Issuer or any direct or indirect parent thereof; provided, further, that such information described in the immediately preceding proviso is made available to the Holdersinformation.
(dc) In addition, to the extent not satisfied by the foregoing, the Issuer will, for so long as any Notes are outstanding, shall furnish to Holders and to prospective purchasersinvestors, upon their request, the any information required to be delivered pursuant to Rule 144A(d)(4) under the Securities Act so long as the Notes are not freely transferable under the Securities Act.
(ed) The Issuer Any Parent Entity may satisfy its the Issuer’s obligations in under this Section 4.03 with respect to 10.09 by providing the requisite financial and other information relating of such Parent Entity instead of the Issuer; provided that to the Issuer by furnishing financial information relating to a extent such Parent Entity holds assets (other than its direct or indirect parent company; provided thatinterest in the Issuer) that exceeds the lesser of (i) 1% of the Total Assets of such Parent Entity and (ii) 1% of the total revenue for the preceding fiscal year of such Parent Entity, if and for so long as then such parent company information related to such Parent Entity shall have Independent Assets or Operations (as defined below), the same is be accompanied by consolidating information information, which may be unaudited, that explains in reasonable detail the differences between the information relating to of such parent companyParent Entity, on the one hand, and the information relating to the Issuer and its Restricted Subsidiaries on a stand-alone basis, on the other hand. “Independent Assets .
(e) The Issuer shall be deemed to have furnished the financial statements and other information referred to in Section 10.09(a) if the Issuer or Operations” means, with respect to any Parent Entity has filed reports containing such information (or any such parent company, that such parent company’s total assets, revenues, income from continuing operations before income taxes and cash flows from operating activities (excluding in each case amounts related to its investment in the Issuer and the Restricted Subsidiaries), determined information of a Parent Entity in accordance with GAAP Section 10.09(d)) with the SEC. To the extent any information is not provided within the time periods specified in this Section 10.09 and as shown on such information is subsequently provided, the most recent balance sheet of Issuer shall be deemed to have satisfied its obligations with respect thereto at such parent company, is more than 3.0% of such parent company’s corresponding consolidated amounttime and any Default with respect thereto shall be deemed to have been cured.
Appears in 1 contract
Reports and Other Information. (a) Notwithstanding that For so long as any Securities are outstanding, the Issuer may not be subject Company shall deliver to the reporting requirements Trustee a copy of Section 13 or 15(d) all of the Exchange Act or otherwise report on an annual information and quarterly basis on forms provided for such annual and quarterly reporting pursuant reports referred to below (within the time periods specified in the SEC’s rules and regulations promulgated by that would apply if the Company were required to file with the SEC as a “non-accelerated filer”; provided that if the Reporting Entity (as defined below) is filing such information and reports with the SEC, within the Issuer shall furnish to time periods specified in the Trustee SEC rules and Holders of the Notes (without exhibits) or post on its website (which may be password protected so long as the password is made promptly available by the Issuer to the Holders, research analysts and prospective purchasers upon request) no later than 15 days after the dates specified below:regulations for such Reporting Entity):
(1) within 90 days after annual reports of the end of each Reporting Entity (as defined below) for such fiscal year (beginning with the fiscal year ending after the Issue Date), annual reports containing substantially all of the information that would have been required to be contained in an Annual Report annual report on Form 10-K (or any successor or comparable form) if the Issuer Reporting Entity had been a reporting company under the Exchange Act (but only Act, except to the extent similar information is included in the Offering Memorandum); provided, that the Issuer shall not be required to provide the information otherwise required permitted to be presented excluded by reporting companies under the Exchange Act pursuant to Part III of Form 10-K except for such information as would be required by Item 401 of Regulation S-K (other than the information required by subsections (c) and (g) of such item), Item 403(a) of Regulation S-K and Item 404 of Regulation S-K (assuming a transaction threshold of $2,500,000 rather than $120,000 and other than information with respect to employment and compensation arrangements and the information required by Item 404(b))SEC;
(2) within 45 days after quarterly reports of the end of Reporting Entity for each of the first three fiscal quarters of each fiscal year, reports year thereafter containing substantially all of the information that would have been required to be contained in a Quarterly Report quarterly report on Form 10-Q (or any successor or comparable form) if the Issuer Reporting Entity had been a reporting company under the Exchange Act (but only Act, except to the extent similar information is included in permitted to be excluded by the Offering Memorandum)SEC; and
(3) within the later of 15 days after the occurrence current reports of the specified event or within five (5) Business Days Reporting Entity containing substantially all of the date on which an event information that would have been be required to be reported filed in a current report on a Form 8-K (as in effect under the Exchange Act on the Issue Date), information Date pursuant to Sections 1, 2 and 4, Items 1.01 (Entry into a Material Definitive Agreement), 1.02 (Termination of a Material Definitive Agreement), 1.03 (Bankruptcy or Receivership), 2.01 (Completion of Acquisition or Disposition of Assets), 2.04 (Triggering Events that Accelerate or Increase a Direct Financial Obligation or an Obligation under an Off-Balance Sheet Arrangement), 2.06 (Material Impairment), 4.01 (Changes in Registrant’s Certifying Accountants), 4.02 (Non-Reliance on Previously Issued Financial Statements or a Related Audit Report or Completed Interim Review), 5.01 (Changes in Control of Registrant)5.01, 5.02(a), (b) or 4810-9980-1327 v49 -76- and (c) and Item 9.01(a) and (Departure of Directors or Principal Officers; Election of Directors; Appointment of Principal Officers; Compensation Arrangements of Certain Officersb) (other than any information only to the extent relating to compensation arrangements with any directors or officers) and 9.01(a) (Financial Statements and Exhibits) (but only with respect to historical financial statements relating to transactions required to be reported pursuant to Item 2.01 and involving acquisitions of Persons that had revenues in excess of $500,000,000 for the last four completed fiscal quarters prior to the consummation of the acquisitionforegoing) of a Current Report on Form 8-K (as in effect of if the Issue Date); providedReporting Entity had been a reporting company under the Exchange Act. In addition to providing such information to the Trustee, that (a) no such report or the Company shall make available to the Holders, prospective investors, bona fide market makers and securities analysts the information will be required to be so furnished if the Issuer determines in good faith that such event is not material provided pursuant to the Holders or the business, assets, operations or financial condition of the Issuer and its Restricted Subsidiaries, taken as a whole and (b) trade secrets and other confidential information that is competitively sensitive in the good faith and reasonable determination of the Issuer may be excluded from disclosures.
(b) The reports required pursuant to foregoing clauses (1), (2) and (3), by posting such information to its website (or the website of any of the Company’s parent companies, including the Reporting Entity) or on IntraLinks or any comparable online data system or website. Notwithstanding the foregoing, (A) neither the Company nor any Reporting Entity that is not subject to Section 13 or 15(d) of Section 4.03(a) the Exchange Act will not be required to comply with deliver any information, certificates or reports that would otherwise be required by (i) Section 302, 302 or Section 404 or Section 906 of the Xxxxxxxx-Xxxxx Act of 2002, (ii) or related Items 307 and or 308 of Regulation S-K promulgated by the SEC, or (iiiii) Item 10(e) of Regulation S-K (promulgated by the SEC with respect to any non-GAAP generally accepted accounting principles financial measures contained therein) or any comparable successor provision therein and (ivB) such reports will not be required to contain audited or unaudited condensed consolidating financial information in the notes to the audited or unaudited financial statements required by Rule 3-09, Rule 3-10 or Rule 3-16 of Regulation S-X Rule 3-10.
(c) So long as or include any Notes are outstanding, the Issuer will also:
(1) issue a press release to an internationally recognized wire service no fewer than three Business Days prior to the delivery exhibits or posting of the annual and quarterly reports certifications required by clauses Form 10-K, Form 10-Q or Form 8-K (1or any successor or comparable forms) and or related rules under Regulation S-K; provided that for the avoidance of doubt if the Reporting Entity is not the Company, such Reporting Entity will continue to be required to deliver the information described in clause (2) of Section 4.03(a4.12(b) announcing in either the date on which “Management’s Discussion and Analysis of Financial Condition and Results of Operations” section or other such reports will be made available to the Holders and directing Holders, research analysts and prospective purchasers to contact the investor relations office of the Issuer to obtain copies non-financial statement section of such reports;report or as otherwise permitted pursuant to clause (b) below.
(2b) maintain a website (which The financial statements, information and other documents required to be provided as described in this Section 4.12 may be password protected so long as those of (i) the password is made promptly available by the Issuer to Holders, research analysts and prospective purchasersCompany or (ii) to which all of the reports and press releases required by this Section 4.03 are posted; and
(3) host and participate in customary quarterly conference calls (which may be a single conference call together with investors holding other securities of the Issuer and/or its Restricted Subsidiaries and/or any direct or indirect parent of the Issuer) to discuss operating results and related matters. The Issuer shall issue a press release which will provide the date and time of Company (any such call and will direct Holdersentity described in clause (i) or (ii), prospective purchasers and research analysts to contact a “Reporting Entity”), so long as in the investor relations office case of the Issuer to obtain access to the conference call; provided, that the Issuer shall not be required to undertake the actions set forth in clauses clause (ii) either (1), (2) and (3) of this Section 4.03(c) at any time that the Issuer or any such direct or indirect parent thereof is otherwise undertaking similar actions on behalf of, and making similar information available to, investors holding other securities of the Issuer Company shall not conduct, transact or otherwise engage, or commit to conduct, transact or otherwise engage, in any business or operations other than its direct or indirect parent thereofownership of all of its equity interests in, and its management of, the Company or (2) if otherwise, the financial information so delivered shall be accompanied by (which may be included in a separate supplement that is not filed with the SEC so long as such supplement is made publicly available on the Company or the REIT’s website) a reasonably detailed description of the quantitative differences between the information relating to such parent, on the one hand, and the information relating to the Company and its Subsidiaries on a standalone basis, on the other hand, with such reasonably detailed description, including: (x) condensed consolidating financial information for the REIT, on an unconsolidated basis, the Operating Partnership, on an unconsolidated basis, the New Bank Claim Borrower and its Subsidiaries on a consolidated basis, the Company and its Subsidiaries on a consolidated basis, intercompany eliminations and consolidation entries and the REIT and its subsidiaries on a consolidated basis, (y) the portfolio level financial information by property category (including by malls, other and total) as contained on slide 31 of Exhibit 99.2 (Presentation to the Ad Hoc Group dated July 2020) to the Current Report on Form 8-K filed by the REIT and the Operating Partnership with the SEC on August 19, 2020 and (z) the occupancy rate and sales per square foot operating statistics by the same property categories used in the preceding clause (y); providedprovided that in case of clause (x), further, that no such information described shall be required to be provided for 4810-9980-1327 v49 -77- any periods ending prior to the Issue Date and in the immediately preceding proviso is made available to case of clauses (y) and (z), such information shall be provided initially for the Holders.
years ended January 1, 2019, 2020 and 2021 (d) In additionin each case, to the extent not satisfied by available) and thereafter for the foregoing, same interim financial statement periods and annual financial statement periods included in the Issuer willapplicable quarterly or annual report required to be provided pursuant to Section 4.12(a).
(c) The Company will make such information available electronically to prospective investors upon request. The Company shall, for so long as any Notes are outstandingSecurities remain outstanding during any period when it is not or any Reporting Entity is not subject to Section 13 or 15(d) of the Exchange Act, or otherwise permitted to furnish the SEC with certain information pursuant to Rule 12g3-2(b) of the Exchange Act, furnish to the Holders and to prospective purchasersinvestors, upon their request, the information required to be delivered pursuant to Rule 144A(d)(4) under the Securities Act.
(ed) The Issuer may satisfy its obligations Notwithstanding the foregoing, the Company will be deemed to have delivered such reports and information referred to in this Section 4.03 with respect to financial information relating 4.12 to the Issuer Holders, prospective investors, market makers, securities analysts and the Trustee for all purposes of this Indenture if the Company or another Reporting Entity has filed such reports with the SEC via the XXXXX filing system (or any successor system) and such reports are publicly available. In addition, the requirements of this Section 4.12 shall be deemed satisfied and the Company will be deemed to have delivered such reports and information referred to in this Section 4.12 to the Trustee, Holders, prospective investors, market makers and securities analysts for all purposes of this Indenture by furnishing financial the posting of reports and information relating that would be required to a direct be provided on the Company’s website (or indirect that of any of the Company’s parent company; provided thatcompanies, if and for so long as such parent company including the Reporting Entity). Notwithstanding the foregoing, the Trustee shall have Independent Assets no obligation to monitor or Operations (as defined below), the same is accompanied by consolidating information that explains in reasonable detail the differences between the information relating to such parent companyconfirm, on a continuing basis or otherwise, whether the one handCompany posts such reports, information and documents on the Company’s website (or that of any of the Company’s parent companies, including the Reporting Entity) or the SEC’s XXXXX service, or collect any such information from the Company’s (or any of the Company’s parent companies’) website or the SEC’s XXXXX service. The Trustee shall have no liability or responsibility for the content, filing or timeliness of any report delivered or filed under or in connection with this Indenture or the transactions contemplated thereunder.
(e) Delivery of such reports, information and documents to the Trustee pursuant to this Section 4.12 is for informational purposes only, and the Trustee’s receipt thereof shall not constitute constructive notice of any information relating contained therein or determinable from information contained therein, including the Company’s, any Subsidiary Guarantors’ or any other Person’s compliance with any of its covenants under this Indenture or the Securities (as to which the Issuer and its Restricted Subsidiaries on a stand-alone basis, Trustee is entitled to rely exclusively on the other handOfficer’s Certificates). “Independent Assets The Trustee is under no duty to examine such reports, information or Operations” means, documents to ensure compliance with respect the provision of this Indenture or to any such parent company, that such parent company’s total assets, revenues, income from continuing operations before income taxes and cash flows from operating activities (excluding in each case amounts related to its investment in ascertain the Issuer and correctness or otherwise of the Restricted Subsidiaries), determined in accordance with GAAP and as shown on information or the most recent balance sheet of such parent company, is more than 3.0% of such parent company’s corresponding consolidated amountstatements contained therein.
Appears in 1 contract
Samples: Indenture
Reports and Other Information. (a) Notwithstanding that the Issuer Company may not be subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act Act, or otherwise report on an annual and quarterly basis on forms provided for such annual and quarterly reporting pursuant to rules and regulations promulgated by the SECCommission, the Issuer Company shall furnish to the Trustee and Holders of the Notes (without exhibits) or post on its website (which may be password protected so long as the password is made promptly available by the Issuer provide to the Holders, research analysts and prospective purchasers upon request) no later than 15 days after without cost to each Holder, the dates specified belowfollowing information:
(1a) within 90 days after the end of each fiscal year (beginning year, commencing with the fiscal year ending after the Issue Date)ended December 31, 2005, annual reports containing substantially all of the financial information that would be required to be contained in an Annual Report a filing with the Commission on Form 10-K if the Issuer had been a reporting company under the Exchange Act (but only to the extent similar information is included in the Offering Memorandum); provided, that the Issuer shall not be required to provide the information otherwise required to be presented by reporting companies under the Exchange Act pursuant to Part III of Form 10-K except for such information as would be required by Item 401 of Regulation S-K (other than the information required by subsections (c) items 307 and (g) of such item), Item 403(a) 308 of Regulation S-K K) if the Company were required to file such a form, including (i) a “Management’s Discussion and Item 404 Analysis of Regulation S-K Financial Condition and Results of Operations” and (assuming ii) a transaction threshold of $2,500,000 rather than $120,000 and other than information with respect to employment and compensation arrangements and report on the information required annual financial statements by Item 404(b));the Company’s certified independent accountants, and
(2b) within 45 days after the end of each of the first three fiscal quarters of each fiscal yearyear commencing with the fiscal quarter ending March 31, reports containing substantially 2006, all of the quarterly information that would be required to be contained in a Quarterly Report filing with the Commission on Form 10-Q if the Issuer had been a reporting company under the Exchange Act (but only to the extent similar information is included in the Offering Memorandum); and
(3) within the later of 15 days after the occurrence of the specified event or within five (5) Business Days of the date on which an event would have been required to be reported on a Form 8-K (as in effect on the Issue Date), information pursuant to Items 1.01 (Entry into a Material Definitive Agreement), 1.02 (Termination of a Material Definitive Agreement), 1.03 (Bankruptcy or Receivership), 2.01 (Completion of Acquisition or Disposition of Assets), 2.04 (Triggering Events that Accelerate or Increase a Direct Financial Obligation or an Obligation under an Off-Balance Sheet Arrangement), 2.06 (Material Impairment), 4.01 (Changes in Registrant’s Certifying Accountants), 4.02 (Non-Reliance on Previously Issued Financial Statements or a Related Audit Report or Completed Interim Review), 5.01 (Changes in Control of Registrant), 5.02(a), (b) or (c) (Departure of Directors or Principal Officers; Election of Directors; Appointment of Principal Officers; Compensation Arrangements of Certain Officers) (other than any the information relating to compensation arrangements with any directors or officers) and 9.01(a) (Financial Statements and Exhibits) (but only with respect to historical financial statements relating to transactions required to be reported pursuant to Item 2.01 and involving acquisitions of Persons that had revenues in excess of $500,000,000 for the last four completed fiscal quarters prior to the consummation of the acquisition) of a Current Report on Form 8-K (as in effect of the Issue Date); provided, that (a) no such report or information will be required to be so furnished if the Issuer determines in good faith that such event is not material to the Holders or the business, assets, operations or financial condition of the Issuer and its Restricted Subsidiaries, taken as a whole and (b) trade secrets and other confidential information that is competitively sensitive in the good faith and reasonable determination of the Issuer may be excluded from disclosures.
(b) The reports required pursuant to clauses (1), (2) and (3) of Section 4.03(a) will not be required to comply with (i) Section 302, Section 404 or Section 906 of the Xxxxxxxx-Xxxxx Act of 2002, (ii) related Items by items 307 and 308 of Regulation S-K promulgated by K) if the SECCompany were required to file such a form, (iii) Item 10(e) including “Management’s Discussion and Analysis of Regulation S-K (with respect Financial Condition and Results of Operations”; and shall make available such information to any non-GAAP financial measures contained therein) or any comparable successor provision and (iv) Regulation S-X Rule 3-10.
(c) So long as any Notes are outstandingprospective investors upon request, the Issuer will also:
(1) issue a press release in addition to an internationally recognized wire service no fewer than three Business Days prior providing such information to the delivery or posting of the annual and quarterly reports required by clauses (1) and (2) of Section 4.03(a) announcing the date on which such reports will be made available to the Holders and directing Holders, research analysts and prospective purchasers to contact within 15 days after the investor relations office of time the Issuer to obtain copies of such reports;
(2) maintain a website (which may be password protected so long as the password is made promptly available by the Issuer to Holders, research analysts and prospective purchasers) to which all of the reports and press releases required by this Section 4.03 are posted; and
(3) host and participate in customary quarterly conference calls (which may be a single conference call together with investors holding other securities of the Issuer and/or its Restricted Subsidiaries and/or any direct or indirect parent of the Issuer) to discuss operating results and related matters. The Issuer shall issue a press release which will provide the date and time of any such call and will direct Holders, prospective purchasers and research analysts to contact the investor relations office of the Issuer to obtain access to the conference call; provided, that the Issuer shall not Company would be required to undertake file such information with the actions set forth in clauses (1), (2) and (3Commission if it were subject to Section 13 or 15(d) of this Section 4.03(c) at any time that the Issuer or any direct or indirect parent thereof is otherwise undertaking similar actions on behalf of, and making similar information available to, investors holding other securities of the Issuer or any direct or indirect parent thereof; provided, further, that such information described in the immediately preceding proviso is made available to the Holders.
(d) In addition, to the extent not satisfied by the foregoing, the Issuer will, for so long as any Notes are outstanding, Exchange Act. The Company shall also furnish to Holders and to prospective purchasers, investors upon their request, request the information required to be delivered pursuant to Rule 144A(d)(4) under the Securities Act.
(e) The Issuer may . Notwithstanding the foregoing, the availability of the foregoing materials on the Commission’s EXXXX service shall be deemed to satisfy its obligations in this Section 4.03 with respect to financial information relating the Company’s delivery obligation to the Issuer by furnishing financial information relating to a direct or indirect parent company; provided that, if and for so long as such parent company shall have Independent Assets or Operations (as defined below), the same is accompanied by consolidating information that explains in reasonable detail the differences between the information relating to such parent company, on the one hand, and the information relating to the Issuer and its Restricted Subsidiaries on a stand-alone basis, on the other hand. “Independent Assets or Operations” means, with respect to any such parent company, that such parent company’s total assets, revenues, income from continuing operations before income taxes and cash flows from operating activities (excluding in each case amounts related to its investment in the Issuer and the Restricted Subsidiaries), determined in accordance with GAAP and as shown on the most recent balance sheet of such parent company, is more than 3.0% of such parent company’s corresponding consolidated amountHolders.
Appears in 1 contract
Reports and Other Information. (a) Notwithstanding that the Issuer may not be subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act or otherwise report on an annual and quarterly basis on forms provided for such annual and quarterly reporting pursuant to rules and regulations promulgated by the SECSo long as any Notes are outstanding, the Issuer shall will furnish to the Trustee and the Holders of the Notes (without exhibits) or post on its website (which may be password protected so long as the password is made promptly available by the Issuer to the Holders, research analysts and prospective purchasers upon request) no later than within 15 days after each of the dates specified periods set forth below:
(1) within 90 days after the end of each fiscal year (beginning with of the fiscal year ending after the Issue Date)Issuer, annual reports containing substantially all of the information that would have been required to be contained in an Annual Report on Form 10-K if of the Issuer had been a reporting company under the Exchange Act (but only to the extent similar information is included in the Offering Memorandum); providedIssuer, that the Issuer shall not be required to provide the information otherwise required to be presented by reporting companies under the Exchange Act pursuant to Part III of Form 10-K except for such information as would be required by Item 401 of Regulation S-K (other than the information required by subsections (c) and (g) of such item), Item 403(a) of Regulation S-K and Item 404 of Regulation S-K (assuming a transaction threshold of $2,500,000 rather than $120,000 and other than information with respect to employment and compensation arrangements and the information required by Item 404(b))or any successor or comparable form;
(2) within 45 days after the end of each of the first three fiscal quarters of each fiscal yearyear of the Issuer, quarterly reports containing substantially all of the information that would have been required to be contained in a Quarterly Report on Form 10-Q if of the Issuer had been a reporting company under the Exchange Act (but only to the extent similar information is included in the Offering Memorandum)Issuer, or any successor or comparable form; and
(3) within the later of 15 days promptly from time to time after the occurrence of the specified event or within five (5) Business Days of the date on which an event would have been required to be reported therein reported, such other reports containing substantially the same information that would be required to be contained in filings with the SEC on a Form 8-K, in accordance with the requirements of such Form 8-K (as in effect on the Issue Date), information pursuant to Items 1.01 (Entry into a Material Definitive Agreement), 1.02 (Termination of a Material Definitive Agreement), 1.03 (Bankruptcy or Receivership), 2.01 (Completion of Acquisition or Disposition of Assets), 2.04 (Triggering Events that Accelerate or Increase a Direct Financial Obligation or an Obligation under an Off-Balance Sheet Arrangement), 2.06 (Material Impairment), 4.01 (Changes in Registrant’s Certifying Accountants), 4.02 (Non-Reliance on Previously Issued Financial Statements or a Related Audit Report or Completed Interim Review), 5.01 (Changes in Control of Registrant), 5.02(a), (b) or (c) (Departure of Directors or Principal Officers; Election of Directors; Appointment of Principal Officers; Compensation Arrangements of Certain Officers) (other than any information relating to compensation arrangements with any directors or officers) and 9.01(a) (Financial Statements and Exhibits) (but only with respect to historical financial statements relating to transactions required to be reported pursuant to Item 2.01 and involving acquisitions of Persons that had revenues in excess of $500,000,000 for the last four completed fiscal quarters prior to the consummation of the acquisition) of a Current Report on Form 8-K (as in effect of the Issue Date, subject to the exceptions
(a) (1) (Resignation of Director due to Disagreement with Registrant); 5.02(c)(1) (Name and Position of Newly Appointed Officer and Date of Appointment); and 5.03(b) (Changes in Fiscal Year), if the Issuer were required to file such reports; provided, that however,
(aA) no such report reports referenced under clause (3) above will be required to include as an exhibit or information summary of terms of, any employment or compensatory arrangement agreement, plan or understanding between the Issuer (or any of its Subsidiaries or any Parent Company) and any director, manager or executive officer, of the Issuer (or any of its Subsidiaries or any Parent Company);
(B) in no event will such reports be required to comply with Section 302, Section 404 or Section 906 of the Xxxxxxxx-Xxxxx Act of 2002, or related Items 307, 308 and 308T of Regulation S-K promulgated by the SEC;
(C) in no event will such reports be required to contain separate financial statements for the Issuer, the Guarantors or other Subsidiaries the shares of which may be pledged to secure the Notes or any Guarantee that would be required under (i) Section 3-09 of Regulation S-X or (ii) Section 3-16 of Regulation S-X, respectively, promulgated by the SEC;
(D) in no event will such reports be required to comply with Regulation G under the Exchange Act or Item 10(e) of Regulation S-K promulgated by the SEC with respect to any non-GAAP financial measures contained therein;
(E) no such reports referenced under clause (3) above will be required to be so furnished if the Issuer determines in its good faith judgment that such event is not material to the Holders or the business, assets, operations or financial condition position of the Issuer and its Restricted Subsidiaries, taken as a whole and whole;
(bF) in no event will such reports be required to comply with Item 601 of Regulation S-K promulgated by the SEC (with respect to exhibits) or, with respect to reports referenced in clause (3) above, to include as an exhibit copies of any agreements, financial statements or other items that would be required to be filed as exhibits to a current report on Form 8-K, except for agreements evidencing material Indebtedness (excluding any schedules thereto);
(G) trade secrets and other confidential information that is competitively sensitive in the good faith and reasonable determination of the Issuer may be excluded from any disclosures.; and
(bH) The reports required pursuant to clauses (1), (2) and (3) of Section 4.03(a) such information will not be required to comply with (i) Section 302, Section 404 or Section 906 of the Xxxxxxxx-Xxxxx Act of 2002, (ii) related Items 307 and 308 of Regulation S-K promulgated by the SEC, (iii) Item 10(e) of Regulation S-K (with respect to contain any non-GAAP financial measures contained therein) or any comparable successor provision and (iv) Regulation S-X Rule 3-10“segment reporting.”
(c) So long as any Notes are outstanding, the Issuer will also:
(1) issue a press release to an internationally recognized wire service no fewer than three Business Days prior to the delivery or posting of the annual and quarterly reports required by clauses (1) and (2) of Section 4.03(a) announcing the date on which such reports will be made available to the Holders and directing Holders, research analysts and prospective purchasers to contact the investor relations office of the Issuer to obtain copies of such reports;
(2) maintain a website (which may be password protected so long as the password is made promptly available by the Issuer to Holders, research analysts and prospective purchasers) to which all of the reports and press releases required by this Section 4.03 are posted; and
(3) host and participate in customary quarterly conference calls (which may be a single conference call together with investors holding other securities of the Issuer and/or its Restricted Subsidiaries and/or any direct or indirect parent of the Issuer) to discuss operating results and related matters. The Issuer shall issue a press release which will provide the date and time of any such call and will direct Holders, prospective purchasers and research analysts to contact the investor relations office of the Issuer to obtain access to the conference call; provided, that the Issuer shall not be required to undertake the actions set forth in clauses (1), (2) and (3) of this Section 4.03(c) at any time that the Issuer or any direct or indirect parent thereof is otherwise undertaking similar actions on behalf of, and making similar information available to, investors holding other securities of the Issuer or any direct or indirect parent thereof; provided, further, that such information described in the immediately preceding proviso is made available to the Holders.
(d) In addition, to the extent not satisfied by the foregoing, the Issuer will, for so long as any Notes are outstanding, furnish to Holders and to prospective purchasers, upon their request, the information required to be delivered pursuant to Rule 144A(d)(4) under the Securities Act.
(eb) The Issuer may satisfy its obligations in this Section 4.03 by furnishing financial or other information relating to any Parent Company; provided that if and so long as such Parent Company has Independent Assets or Operations, with respect to financial information relating to the Issuer by furnishing financial information relating to a direct or indirect parent company; provided that, if and for so long as such parent company shall have Independent Assets or Operations (as defined below)information, the same is accompanied by consolidating information (which need not be audited) that explains in reasonable detail the differences between the information relating to such parent companyParent Company, on the one hand, and the information relating to the Issuer and its Restricted Subsidiaries on a stand-alone basis, on the other hand. .
(c) In addition, notwithstanding the foregoing, the financial statements, information, auditors’ reports and other documents and information required to be provided pursuant to Section 4.03(a) may be, rather than those of the Issuer, those of (a) any predecessor or successor of the Issuer, (b) any Wholly-Owned Restricted Subsidiary of the Issuer that, together with its consolidated Subsidiaries, constitutes substantially all of the assets of the Issuer and its consolidated Subsidiaries (“Independent Assets Qualified Reporting Subsidiary”) or Operations” means(c) any direct or indirect parent of the Issuer; provided that, if the financial information required to be provided pursuant to clauses (1) and (2) of Section 4.03(a) relates to such Qualified Reporting Subsidiary of the Issuer or such Parent Company, such financial information will be accompanied by consolidating information (which need not be audited), which may be posted to the website of the Issuer or on Intralinks, SyndTrak, ClearPar or any comparable password protected online data system (or at the Issuer’s election, with respect the SEC), that explains in reasonable detail (in the good faith judgment of the Issuer) the differences between the information relating to such Qualified Reporting Subsidiary or such Parent Company (as the case may be), on the one hand, and the information relating to the Issuer and its Subsidiaries on a stand-alone basis, on the other hand.
(d) Notwithstanding anything herein to the contrary, the Issuer will not be deemed to have failed to comply with any of its obligations under this Section 4.03 for purposes of Section 6.01(3) hereof until 90 days after the date any report is due under this Section 4.03.
(e) The Issuer will make available such information and such reports to the Trustee and any Holder and, upon request, to any beneficial owner of the Notes, in each case by posting such information on its website, on Intralinks, SyndTrak, ClearPar or any comparable password‑protected online data system that will require a confidentiality acknowledgment, and will make such information readily available to any Holder, any bona fide prospective investor in the Notes, any bona fide securities analyst (to the extent providing analysis of investment in the Notes to investors and prospective investors therein) or any bona fide market maker in the Notes who agrees to treat such information as confidential or accesses such information on Intralinks, SyndTrak, ClearPar or any comparable password-protected online data system that will require a confidentiality acknowledgment; provided that the Issuer may deny access to any competitively‑sensitive information otherwise to be provided pursuant to this Section 4.03(e) to any such parent Holder, prospective investor, security analyst or market maker that is a competitor of the Issuer and its Subsidiaries, or an affiliate of such a competitor (other than any affiliate that is a bona fide bank debt fund, distressed asset fund, hedge fund, mutual fund, insurance company, financial institution or investment vehicle engaged in the business of investing in, acquiring or trading commercial loans, bonds and similar extensions of credit in the ordinary course (and not organized primarily for the purpose of making equity investments)) to the extent that the Issuer determines in good faith that the provision of such information to such Person would be competitively harmful to the Issuer and its Subsidiaries; and provided further that such parent company’s total assetsHolders, revenuesprospective investors, income from continuing operations before income taxes security analysts or market makers will agree to (1) treat all such reports (and cash flows from operating activities the information contained therein) and information as confidential, (excluding in each case amounts related to its 2) not use such reports and the information contained therein for any purpose other than their investment or potential investment in the Issuer Notes and (3) not publicly disclose or distribute any such reports (and the Restricted Subsidiariesinformation contained therein).
(f) In addition, determined to the extent not satisfied by the reports required under this Section 4.03 or otherwise made publicly-available by the Issuer, the Issuer will furnish to Holders thereof and prospective investors in accordance the Notes, upon their request, the information, if any, required to be delivered pursuant to Rule 144A(d)(4) (or any successor provision) of the Securities Act.
(g) The Issuer will be deemed to have furnished the reports in Sections 4.03(a) if the Issuer or any Parent Company has filed reports containing such information with GAAP the SEC.
(h) To the extent any information is not provided within the time periods specified in this Section 4.03 and as shown such information is subsequently provided, the Issuer will be deemed to have satisfied its obligations with respect thereto at such time and any Default with respect thereto will be deemed to have been cured.
(i) It is understood that the Trustee shall have no obligation whatsoever to determine whether or not such financial statements, auditors’ reports and other information, documents or reports have been posted on the most recent balance sheet Issuer’s website, on any online data system or filed with the SEC. The posting or delivery of any such financial statements, auditors’ reports and other reports, information and documents to the Trustee is for informational purposes only and the Trustee’s receipt of such parent companyshall not constitute actual or constructive knowledge or notice of any information contained therein or determinable from information contained therein, including the Issuer’s or any other Person’s compliance with any of the covenants under this Indenture or the Notes (as to which the Trustee is more than 3.0% of such parent companyentitled to rely exclusively on an Officer’s corresponding consolidated amountCertificate).
Appears in 1 contract
Samples: Indenture (Michaels Companies, Inc.)
Reports and Other Information. (a) Notwithstanding that So long as any Notes are outstanding following the Issuer may not be subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act or otherwise report on an annual and quarterly basis on forms provided for such annual and quarterly reporting pursuant to rules and regulations promulgated by the SECIssue Date, the Issuer shall furnish to the Trustee and Holders of the Notes (without exhibits) or post on its website (which may be password protected so long as the password is made promptly available by the Issuer to the Holders, research analysts and prospective purchasers upon request) no later than 15 days after the dates specified below:
(1A) all annual and quarterly financial statements substantially in forms that would be required to be contained in a filing with the SEC on Form 10-K and Form 10-Q of the Issuer, if the Issuer were required to file such forms, plus a “Management’s Discussion and Analysis of Financial Condition and Results of Operations,” and (B) with respect to the annual financial statements only, a report on the annual financial statements by the Issuer’s independent registered public accounting firm; and
(2) within 90 days ten Business Days after the end occurrence of each fiscal year (beginning an event required to be therein reported, such other information containing substantially the same information that would be required to be contained in filings with the fiscal year ending after SEC on Form 8-K as in effect on the Issue Date)Date if the Issuer were required to file such reports; provided, annual reports containing substantially all of the however, that no such current report or any information required to be contained in an Annual Report on Form 10-K if the Issuer had been a reporting company under the Exchange Act (but only to the extent similar information is included in the Offering Memorandum); provided, that the Issuer shall not be required to provide the information otherwise required to be presented by reporting companies under the Exchange Act pursuant to Part III of Form 10-K except for such information as would be required by Item 401 of Regulation S-K (other than the information required by subsections (c) and (g) of such item), Item 403(a) of Regulation S-K and Item 404 of Regulation S-K (assuming a transaction threshold of $2,500,000 rather than $120,000 and other than information with respect to employment and compensation arrangements and the information required by Item 404(b));
(2) within 45 days after the end of each of the first three fiscal quarters of each fiscal year, reports containing substantially all of the information required to be contained in a Quarterly Report on Form 10-Q if the Issuer had been a reporting company under the Exchange Act (but only to the extent similar information is included in the Offering Memorandum); and
(3) within the later of 15 days after the occurrence of the specified event or within five (5) Business Days of the date on which an event would have been required to be reported on a Form 8-K (as in effect on the Issue Date), information pursuant to Items 1.01 (Entry into a Material Definitive Agreement), 1.02 (Termination of a Material Definitive Agreement), 1.03 (Bankruptcy or Receivership), 2.01 (Completion of Acquisition or Disposition of Assets), 2.04 (Triggering Events that Accelerate or Increase a Direct Financial Obligation or an Obligation under an Off-Balance Sheet Arrangement), 2.06 (Material Impairment), 4.01 (Changes in Registrant’s Certifying Accountants), 4.02 (Non-Reliance on Previously Issued Financial Statements or a Related Audit Report or Completed Interim Review), 5.01 (Changes in Control of Registrant), 5.02(a), (b) or (c) (Departure of Directors or Principal Officers; Election of Directors; Appointment of Principal Officers; Compensation Arrangements of Certain Officers) (other than any information relating to compensation arrangements with any directors or officers) and 9.01(a) (Financial Statements and Exhibits) (but only with respect to historical financial statements relating to transactions required to be reported pursuant to Item 2.01 and involving acquisitions of Persons that had revenues in excess of $500,000,000 for the last four completed fiscal quarters prior to the consummation of the acquisition) of a Current Report on Form 8-K (as in effect of the Issue Date); provided, that (a) no such report or information will be required to be so furnished if the Issuer determines in its good faith judgment that such event, or any information with respect to such event which is not included in any report that is furnished, is not material to the Holders noteholders or the business, assets, operations operations, financial positions or financial condition prospects of the Issuer and its Restricted Subsidiaries, taken as a whole whole, or such current report relates solely to information required under Items 3.01, 3.02, 3.03, insofar as it relates to securities other than the Notes and (b) trade secrets and other confidential information that is competitively sensitive in the good faith and reasonable determination of the Issuer may be excluded from disclosures.
(b) The reports required pursuant to clauses (1)Guarantees, (2) and (3or 5.02(e) of Section 4.03(aForm 8-K or any successor provisions thereto; provided, however, that all such reports (A) will not be required to comply with (i) Section 302, 302 or Section 404 or Section 906 of the Xxxxxxxx-Xxxxx Act of 2002, (ii) or related Items 307 and 308 of Regulation S-K SK promulgated by the SEC, (iii) or Item 10(e) of Regulation S-K (with respect to any non-GAAP financial measures contained therein), (B) will not be required to contain the information required by Items 201, 402, 403, 405, 406, 407, 701 or any comparable successor provision 703 of Regulation S-K, and (ivC) will not be required to contain the separate financial information for Guarantors contemplated by Rule 3-10 of Regulation S-X Rule 3-10promulgated by the SEC.
(b) All such annual information and reports shall be furnished within 90 days after the end of the fiscal year to which they relate, and all such quarterly information and reports shall be furnished within 45 days after the end of the fiscal quarter to which they relate; provided that the annual information and report for the first fiscal year ending after the Issue Date shall be furnished within 120 days after the end of such fiscal year; and provided further that the quarterly information and reports for each of the fiscal quarter ending prior to and the first three fiscal quarters ending after the Issue Date shall be furnished within 60 days after the end of such applicable fiscal quarter.
(c) So long The Issuer shall make available such information and such reports (as well as the details regarding the conference call described below) to any Holder and, upon request, to any beneficial owner of the Notes, in each case by posting such information on its website, on Intralinks or any comparable password-protected online data system which will require a confidentiality acknowledgment, and shall make such information readily available to any Holder, any bona fide prospective investor in the Notes are outstanding(as determined in the Issuer’s sole discretion and which prospective investors shall, in any event, be limited to “qualified institutional buyers” within the Issuer will also:
(1) issue a press release to an internationally recognized wire service no fewer than three Business Days prior meaning of Rule 144A of the Securities Act or non-U.S. persons that certify their status as such to the delivery or posting of the annual and quarterly reports required by clauses (1) and (2) of Section 4.03(a) announcing the date on which such reports will be made available to the Holders and directing Holders, research analysts and prospective purchasers to contact the investor relations office of the Issuer to obtain copies of such reports;
(2) maintain a website (which may be password protected so long as the password is made promptly available by the Issuer to Holders, research analysts and prospective purchasers) to which all of the reports and press releases required by this Section 4.03 are posted; and
(3) host and participate in customary quarterly conference calls (which may be a single conference call together with investors holding other securities of the Issuer and/or its Restricted Subsidiaries and/or any direct or indirect parent reasonable satisfaction of the Issuer), any securities analyst (to the extent providing analysis of investment in the Notes) or any market maker in the Notes who agrees to discuss operating results and related matters. The treat such information as confidential or accesses such information on Intralinks or any comparable password-protected online data system which will require a confidentiality acknowledgment; provided that the Issuer shall issue a press release which will provide the date post such information thereon and time of make readily available any password or other login information to any such call and will direct HoldersHolder, bona fide prospective purchasers and research analysts to contact the investor relations office of the Issuer to obtain access to the conference callinvestor, securities analyst or market maker; provided, further, however, that the Issuer shall not may deny access to any competitively-sensitive information otherwise to be required provided pursuant to undertake the actions set forth in clauses (1), (2) and (3) of this Section 4.03(c10.09(c) at to any time such Holder, prospective investor, security analyst or market maker that is a competitor of the Issuer and its Subsidiaries to the extent that the Issuer or any direct or indirect parent thereof is otherwise undertaking similar actions on behalf of, and making similar determines in good faith that the provision of such information available to, investors holding other securities of to such Person would be competitively harmful to the Issuer or any direct or indirect parent thereofand its Subsidiaries; and provided, further, that such Holders, prospective investors, security analysts or market makers shall agree to (i) treat all such reports (and the information described contained therein) and information as confidential, (ii) not use such reports and the information contained therein for any purpose other than their investment or potential investment in the immediately preceding proviso is made available Notes, and (iii) not publicly disclose any such reports (and the information contained therein). The Issuer shall hold a quarterly conference call for all Holders and securities analysts (to the Holdersextent providing analysis of investment in the Notes) to discuss such financial information (including a customary Q&A session) no later than ten Business Days after distribution of such financial information.
(d) In additionThe Issuer shall be deemed to have furnished the financial statements and other information referred to in Section 10.09(a)(1), to the extent not satisfied by the foregoingSection 10.09(a)(2), Section 10.09(b), and Section 10.09(c) if the Issuer will, for so long as any Notes are outstanding, furnish to Holders and to prospective purchasers, upon their request, has filed reports containing such information with the information required to be delivered pursuant to Rule 144A(d)(4) under the Securities ActSEC.
(e) The Issuer may satisfy its obligations To the extent any information is not provided within the time periods specified in this Section 4.03 10.09 and such information is subsequently provided, the Issuer shall be deemed to have satisfied its obligations with respect thereto at such time and any Default with respect thereto shall be deemed to financial have been cured.
(f) To the extent the Issuer delivers such reports, information relating and documents to the Issuer by furnishing financial Trustee, such delivery shall be for informational purposes only and the Trustee’s receipt of such reports, information relating to a direct and documents shall not constitute actual or indirect parent company; provided thatconstructive notice of any information contained therein or determinable from information contained therein, if and for so long as such parent company shall have Independent Assets or Operations including the Issuer’s compliance with any of its covenants hereunder (as defined belowto which the Trustee is entitled to rely exclusively on Officer’s Certificates), the same is accompanied by consolidating information that explains in reasonable detail the differences between the information relating to such parent company, on the one hand, and the information relating to the Issuer and its Restricted Subsidiaries on a stand-alone basis, on the other hand. “Independent Assets or Operations” means, with respect to any such parent company, that such parent company’s total assets, revenues, income from continuing operations before income taxes and cash flows from operating activities (excluding in each case amounts related to its investment in the Issuer and the Restricted Subsidiaries), determined in accordance with GAAP and as shown on the most recent balance sheet of such parent company, is more than 3.0% of such parent company’s corresponding consolidated amount.
Appears in 1 contract
Reports and Other Information. (a) Notwithstanding that the Issuer may not be subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act or otherwise report on an annual and quarterly basis on forms provided for such annual and quarterly reporting pursuant to the rules and regulations promulgated by the SEC, from and after the Issue Date, the Issuer shall furnish to the Trustee and Holders of the Notes (without exhibits) or post on its website (which may be password protected so long as the password is made promptly available by the Issuer to the HoldersTrustee, research analysts and prospective purchasers upon request) no later than within 15 days after the dates time periods specified below:
(1i) within 90 days after the end of each fiscal year (beginning with the fiscal year ending after the Issue Date)year, annual reports containing substantially all of the information that would be required to be contained in an Annual Report annual report on Form 10-K if K, or any successor or comparable form, filed with the Issuer had been a reporting company under SEC as of the Exchange Act Issue Date (but only to the extent similar information is included in the Offering Memorandum); providedother than Part I, that the Issuer shall not be required to provide the information otherwise required to be presented by reporting companies under the Exchange Act pursuant to Item 4, Part III II, Items 5 and 9B, Part III, Items 11, 12 and 14 of Form 10-K except for K, any exhibits related to such information as would be Items and any exhibits required by paragraphs (11), (13), (22), (31), (32) and (95) of Item 401 601 of Regulation S-K (other than the information required by subsections (cor any such similar items and exhibits in any successor or comparable form) and (g) of such item), Item 403(a) of Regulation S-K and Item 404 of Regulation S-K (assuming a transaction threshold of $2,500,000 rather than $120,000 and other than information with respect to employment and compensation arrangements and report on the information required annual financial statements by Item 404(b))the Issuer’s independent registered public accounting firm;
(2ii) within 45 days after the end of each of the first three fiscal quarters of each fiscal year, reports containing substantially all of the information that would be required to be contained in a Quarterly Report quarterly report on Form 10-Q if Q, or any successor or comparable form, filed with the Issuer had been a reporting company under SEC as of the Exchange Act Issue Date (but only other than Part II, Items 2 and 4 of Form 10-Q, any exhibits related to the extent such Items and any exhibits required by paragraphs (11), (22), (31), (32) and (95) of Item 601 of Regulation S-K or any such similar information is included Items and exhibits in the Offering Memorandumany successor or comparable form); and
(3iii) within the later of 15 days after the occurrence of the time periods specified event or within five (5) Business Days of the date for filing current reports on which an event Form 8-K, all current reports that would have been be required to be reported on a Form 8-K (as in effect on filed with the Issue Date), information pursuant to Items 1.01 (Entry into a Material Definitive Agreement), 1.02 (Termination of a Material Definitive Agreement), 1.03 (Bankruptcy or Receivership), 2.01 (Completion of Acquisition or Disposition of Assets), 2.04 (Triggering Events that Accelerate or Increase a Direct Financial Obligation or an Obligation under an Off-Balance Sheet Arrangement), 2.06 (Material Impairment), 4.01 (Changes in Registrant’s Certifying Accountants), 4.02 (Non-Reliance on Previously Issued Financial Statements or a Related Audit Report or Completed Interim Review), 5.01 (Changes in Control of Registrant), 5.02(a), (b) or (c) (Departure of Directors or Principal Officers; Election of Directors; Appointment of Principal Officers; Compensation Arrangements of Certain Officers) (other than any information relating to compensation arrangements with any directors or officers) and 9.01(a) (Financial Statements and Exhibits) (but only with respect to historical financial statements relating to transactions required to be reported pursuant to Item 2.01 and involving acquisitions of Persons that had revenues in excess of $500,000,000 for the last four completed fiscal quarters prior to the consummation of the acquisition) of a Current Report SEC on Form 8-K (as in effect of the Issue DateDate if the Issuer were required to file such reports (other than reports related to Items 1.04, 2.05, 2.06, 3.01, 3.02, 3.03, 5.02(e), 5.04, 5.07 and 5.08 of Form 8-K and any exhibits related to such Items or any such similar Items in any successor or comparable form), in each case, in a manner that complies in all material respects with the requirements specified in such form; provided, however, that (a) no such report or information will the Issuer shall not be required to provide separate financial statements or other information contemplated by Rule 3-09 or Rule 3-16 of Regulation S-X, or, in each case, any successor provisions or any schedules required by Regulation S-X; provided further, that the financial statements required to be so furnished if provided for acquired businesses will be limited to the financial statements (in whatever form and whether or not audited) that the Issuer determines receives in good faith connection with the acquisition of such acquired businesses; provided further, that such event is not material to the Holders or the business, assets, operations or financial condition of the Issuer and its Restricted Subsidiaries, taken as a whole and (b) trade secrets shall be required to provide separate financial statements and other confidential information that is competitively sensitive in contemplated by Rule 3-10 of Regulation S-X, or any successor provisions or any schedules required by Regulation S-X. In addition, notwithstanding the good faith and reasonable determination of foregoing, the Issuer may be excluded from disclosures.
(b) The reports required pursuant to clauses (1), (2) and (3) of Section 4.03(a) will not be required to comply with (i) Section comply with Sections 302, Section 906 and 404 or Section 906 of the Xxxxxxxx-Xxxxx Act of 2002, as amended, or (ii) related otherwise furnish any information, certificates or reports required by Items 307 and or 308 of Regulation S-K promulgated by the SEC, (iii) Item 10(e) of Regulation S-K (with respect to any non-GAAP financial measures contained therein) or any comparable successor provision and (iv) Regulation S-X Rule 3-10.
(c) So long as any Notes are outstanding, the Issuer will also:
(1) issue a press release to an internationally recognized wire service no fewer than three Business Days prior to the delivery or posting of the annual and quarterly reports required by clauses (1) and (2) of Section 4.03(a) announcing the date on which such reports will be made available to the Holders and directing Holders, research analysts and prospective purchasers to contact the investor relations office of the Issuer to obtain copies of such reports;
(2) maintain a website (which may be password protected so long as the password is made promptly available by the Issuer to Holders, research analysts and prospective purchasers) to which all of the reports and press releases required by this Section 4.03 are posted; and
(3) host and participate in customary quarterly conference calls (which may be a single conference call together with investors holding other securities of the Issuer and/or its Restricted Subsidiaries and/or any direct or indirect parent of the Issuer) to discuss operating results and related matters. The Issuer shall issue a press release which will provide the date and time of any such call and will direct Holders, prospective purchasers and research analysts to contact the investor relations office of the Issuer to obtain access to the conference call; provided, that the Issuer shall not be required to undertake the actions set forth in clauses (1), (2) and (3) of this Section 4.03(c) at any time that the Issuer or any direct or indirect parent thereof is otherwise undertaking similar actions on behalf of, and making similar information available to, investors holding other securities of the Issuer or any direct or indirect parent thereof; provided, further, that such information described in the immediately preceding proviso is made available to the Holders.
(d) K. In addition, to the extent not satisfied by the foregoing, the Issuer will, foregoing and for so long as any Notes are outstanding, the Issuer shall furnish to Holders and to securities analysts and prospective purchasersinvestors, upon their request, the information required to be delivered pursuant to Rule 144A(d)(4) under the Securities Act.
(b) To the extent the information required by paragraph (a) above is not filed with the SEC, substantially concurrently with the furnishing or making such information available to the Trustee pursuant to paragraph (a) above, the Issuer shall also use its commercially reasonable efforts to post copies of such information required by paragraph (a) above on a website (which may be nonpublic and may be maintained by the Issuer or a third party) to which access will be given to Holders, prospective investors in the Notes (which prospective investors shall be limited to QIBs or Non-U.S. Persons that certify their status as such to the reasonable satisfaction of the Issuer), and securities analysts and market making financial institutions that are, in the case of securities analysts and market making financial institutions, reasonably satisfactory to the Issuer. To the extent the Issuer determines in good faith that it cannot make such reports available in the manner described in the preceding sentence after the use of its commercially reasonable efforts, the Issuer shall furnish such reports to the Holders of the Notes and upon request, such prospective investors in the Notes, securities analysts and market making financial institutions.
(c) The Issuer shall be deemed to have complied with the requirements of paragraph (a)(i), (a)(ii) or (a)(iii) above to the extent it files with the SEC an annual report on Form 10-K with respect to such fiscal year, a quarterly report on Form 10-Q with respect to such fiscal quarter or a current report on Form 8-K with respect to such event (respectively), in each case, complying with the rules of the SEC. Upon filing such report with the SEC, the Issuer shall also be deemed to have complied with the requirements of paragraph (b) with respect to such report.
(d) At the time of delivery of the reports provided pursuant to clauses (a)(i) and (ii) above, the Issuer shall also (i) deliver to the Trustee an Officers’ Certificate (A) certifying as to compliance or non-compliance with the Required Collateral Coverage Ratio for the related Collateral Coverage Ratio Test Period and (B) setting forth the calculations used to arrive at such determination of compliance or non-compliance (including a statement of the relevant cash balance), and (ii) provide on the Issuer’s website a presentation of Grantor EBITDA for the most recently completed four fiscal quarters.
(e) The In addition, no later than five Business Days after the date the earnings release related to the annual and quarterly financial information for the prior fiscal period, as applicable, have been filed or furnished pursuant to clause (a)(i) or (ii) above, the Issuer shall also hold live quarterly conference calls with the opportunity to ask questions of management. No fewer than five Business Days prior to the date such conference call is to be held, the Issuer shall issue a press release to the appropriate U.S. wire services announcing such quarterly conference call for the benefit of the Holders, beneficial owners of the Notes, prospective purchasers of the Notes and market making financial institutions, which press release shall contain the time and the date of such conference call and direct the recipients thereof to contact an individual at the Issuer (for whom contact information shall be provided in such notice) to obtain information on how to access such quarterly conference call.
(f) If the Issuer has designated any of its Subsidiaries as Unrestricted Subsidiaries and such Unrestricted Subsidiaries, either individually or collectively, would otherwise have been a Significant Subsidiary, then the annual and quarterly financial information required by the preceding paragraph shall include a reasonably detailed presentation, as determined in good faith by Senior Management of the Issuer, either on the face of the financial statements or in the footnotes to the financial statements and in the “Management’s discussion and analysis of financial condition and results of operations” section, of the financial condition and results of operations of the Issuer and its Restricted Subsidiaries separate from the financial condition and results of operations of the Unrestricted Subsidiaries.
(g) In the event that any direct or indirect parent company of the Issuer becomes a Guarantor of the Notes, the Issuer may satisfy its obligations in under this Section 4.03 with respect covenant to provide consolidated financial information of the Issuer by furnishing consolidated financial information relating to the Issuer by furnishing financial information relating to a direct or indirect parent companysuch parent; provided that, if and for so long as such parent company shall have Independent Assets or Operations (as defined below)Operations, the same is accompanied by consolidating information that explains in reasonable detail the differences between the information relating to such parent company, on the one hand, and the information relating to the Issuer and its Restricted Subsidiaries on a stand-alone basis, on the other hand. “Independent Assets or Operations” means, with respect to any such parent company, that such parent company’s total assets, assets or revenues, income from continuing operations before income taxes and cash flows from operating activities (excluding in each case amounts related to its investment in the Issuer and the Restricted Subsidiaries), determined in accordance with GAAP and as shown on the most recent balance sheet financial statements of such parent company, is more than 3.0% of the Issuer’s or such parent company’s corresponding consolidated amount.
Appears in 1 contract
Samples: Indenture (Unisys Corp)
