An information sharing agreement is a legal document that to allows two or more parties to share, receive and use certain confidential information. These agreements are essential to protect intellectual property for all parties involved. A common reason these agreements are necessary is that one party may want the other party's knowledge of how they do things in their organization to improve efficiency.
The terms can include what type of information will be shared, who owns the Intellectual Property that results from this collaboration, and what each party agrees not to disclose about the partnership. Information sharing agreements also help avoid any potential issues with non-compete clauses by specifying that neither party will enter into similar collaborative relationships with third parties during or after termination without written consent.
Below is a list of common sections included in Information Sharing Agreements. These sections are linked to the below sample agreement for you to explore.
INFORMATION SHARING AND COOPERATION AGREEMENT
UROVANT SCIENCES LTD.,
ROIVANT SCIENCES LTD.
Dated as of July 9, 2018
TABLE OF CONTENTS
INFORMATION SHARING AND COOPERATION AGREEMENT
This INFORMATION SHARING AND COOPERATION AGREEMENT (this “ Agreement ”), dated as of July 9, 2018 (the “ Effective Date ”), is entered into between Urovant Sciences Ltd., a Bermuda exempted limited company (the “ Company ”) and Roivant Sciences Ltd., a Bermuda exempted limited company (“ Roivant ”), (with each of the Company and Roivant, a “ Party ” and together, the “ Parties ”).
WHEREAS, Roivant is the beneficial owner of all the issued and outstanding Common Shares of the Company;
WHEREAS, the parties hereto desire to enter into an agreement to provide for certain rights and obligations associated with Roivant’s ownership of Common Shares;
WHEREAS, the Parties intend that this Agreement shall set forth the principal arrangements between Roivant and the Company regarding the sharing of information and cooperation of the Parties in connection with the preparation of each Party’s financial statements and, to the extent applicable in the future, their respective reporting obligations under other circumstances, from and after the date of effectiveness of the Registration Statement for an IPO (the “ IPO Effective Date ”);
NOW, THEREFORE, in consideration of the covenants and agreements contained herein, the parties hereto agree as follows:
DEFINITIONS AND INTERPRETATION
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“ Affiliate ” means, with respect to any Person, any other Person that, directly or indirectly through one or more intermediaries, controls, is controlled by or is under common control with such Person, including any general partner, managing member, officer or director of such Person or any venture capital, private equity or other investment fund or account now or hereafter existing that is controlled by one or more general partners or managing members of, or shares the same management company or investment advisor with, such Person.
“ Applicable Money Laundering Laws ” means Laws applying to the Company and, in the case of each Subsidiary of the Company, the Laws applying to such Subsidiary, prohibiting money laundering.
“ Board ” means the Board of Directors of the Company.
“ Business Day ” means any day other than a Saturday or Sunday on which banks are open for business in New York, New York, London, United Kingdom, and Bermuda.
“ Bye-laws ” means the Amended and Restated Bye-laws of the Company, as the same may be amended from time to time.
“ Common Shares ” means the common shares of the Company.
“ Compliance Officer ” means, with respect to any Person, the individual on the senior management of such Person who has been delegated the responsibility for ensuring compliance with all Specified Laws.
“ Compliance Program ” means a quality and regulatory compliance program, overseen by the Compliance Oversight Committee, for ensuring compliance by the Company and its Subsidiaries with the Specified Laws.
“ Control ” means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of a person, whether through the ownership of voting securities, by contract or otherwise, with “Controlled” having a correlative meaning.
“ Data Privacy and Cybersecurity Rules and Regulations ” means, collectively, all of the following to the extent relating to data privacy, data protection or cybersecurity (including the collection, storage, use, maintenance, access, disclosure, processing, security, transfer, aggregation, confidentiality, integrity and availability) of Personal Information, and confidential, proprietary and/or business information: (i) all Laws, encompassing U.S. state and federal, regional and international data privacy and cybersecurity laws, regulations and guidance including but not limited to the Health Insurance Portability and Accountability Act, the Gramm-Leach-Bliley Act, the Federal Information Security Management Act, the Fair Credit Reporting Act, the Fair and Accurate Credit Transaction Act, the Federal Trade Commission Act, the Privacy Act of 1974, the CAN-SPAM Act, the Telephone Consumer Protection Act, the Telemarketing and Consumer Fraud and Abuse Prevention Act, Children’s Online Privacy Protection Act, the EU Data Protection Directive, the EU General Data Protection Regulation, the Canadian Personal Information Protection and Electronic Documents Act, the Swiss Federal Act on Data Protections, and U.S. state data privacy, cybersecurity and data breach notification laws, (ii) the Company’s own rules, policies, procedures and public statements (including all data protection and privacy policies and related notices, (iii) industry-recognized privacy and cybersecurity standards (such as NAI, ISO 27001, COBIT, NIST, HIPAA, PCI-DSS, ITAR, etc.), and (iv) contracts into which the Company has entered or by which it is otherwise bound.
“ Equity Securities ” means, without duplication, (a) the Common Shares, (b) any other class of equity security or equity-linked security issued by the Company or any corporate successor thereto and (c) any other securities convertible into or exchangeable or exercisable for, or options, warrants or other rights to acquire, Common Shares, or any other equity or equity-linked securities issued by the Company or any corporate successor thereto.
“ Exchange Act ” means the U.S. Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated from time to time thereunder.
“ FCPA ” means the U.S. Foreign Corrupt Practices Act of 1977, as amended.
“ FDA ” means the U.S. Food and Drug Administration.
“ GAAP ” means United States generally accepted accounting principles.
“ Government Official ” means (a) an officer or employee of any national, regional, local or other component of government, (b) a director, officer or employee of any entity in which a government or any component of a government possesses a majority or controlling interest; (c) a candidate for public office; (d) a political party or political party official; (e) an officer or employee of a public international organization (e.g., the European Commission or World Bank); and (f) any individual who is acting in an official capacity for any government, component of a government, political party or public international organization, even if such individual is acting in that capacity temporarily and without compensation.
“ Health-Related Requirements ” means (a) the federal Laws applicable to the activities of a pharmaceutical or biological product manufacturer, including but not limited to federal health care program and FDA requirements relating to research; development; interactions with health care professionals, patient advocacy or assistance organizations, charitable organizations, and professional societies; data integrity and security; labeling; marketing; sale; distribution; import; export; product pricing and reimbursement; Quality Management Systems; price, safety, and other reporting obligations; safety monitoring; or exclusion and debarment (collectively, “ manufacturer activities ”); (b) the U.S. anti-corruption Laws (e.g., the FCPA) applicable to manufacturer activities occurring outside the United States; and (c) non-U.S. laws that are equivalent to the requirements set forth in clauses (a) and (b) of this definition (e.g., the UKBA and any other applicable Laws prohibiting bribery and corruption).
“ IPO ” means the underwritten initial public offering of Equity Securities (it being understood that an IPO shall not include a registration effected solely to implement an employee benefit plan, a merger or other business combination or a registration on Form S-4, Form S-8 or any substantially equivalent or successor form thereto).
“ Law ” means any national, federal, state, provincial, local or foreign law, statute, code, ordinance, rule, regulation, order, judgment, writ, stipulation, award, injunction, decree or arbitration award or finding.
“ Local ABAC Laws ” means local Laws applying to the Company and, in the case of each Subsidiary of the Company, the Laws applying to such Subsidiary, prohibiting bribery and corruption.
“ Person ” means an individual, company, corporation, limited liability company, partnership, association, joint stock company, trust, joint venture, unincorporated organization or other entity or organization, including a governmental authority.
“ Quality Management Systems ” means those systems supporting the development and manufacture of pharmaceutical drug substances (i.e., active pharmaceutical ingredients (APIs)) and drug products, including biotechnology and biological products, throughout the product lifecycle.
“ Regulatory and Governance Requirements ” means all (a) ethics, conduct, conflict, insider trading and other internal policies and guidelines applicable generally to Roivant or any of its Representatives and (b) applicable regulatory, internal controls (including internal controls with
respect to financial reporting and remediation of any deficiencies), audit, compliance, record keeping, document retention, financial reporting, tax and legal requirements applicable to Roivant or any of its Representatives, in each case, as amended or updated from time to time.
“ Reportable Event ” means any event that may (a) represent a substantial deviation from applicable policies, procedures, systems or controls regarding Specified Laws; or (b) represent a violation of any Specified Law that could have a material compliance, regulatory, legal financial, reputational or safety impact on the Company, its Affiliates, and its or their stakeholders or patients, in each case, as reasonably determined by the Company.
“ Representatives ” means, with respect to a Person, such Person’s directors, officers, employees, agents, legal counsel, financial advisors and other representatives, including any appointed representative of such Person serving on the Board.
“ Sanctions ” means economic or financial sanctions or trade embargoes, including (a) United Nations sanctions imposed pursuant to any United Nations Security Council Resolution; (b) U.S. sanctions administered by the Office of Foreign Assets Control of the U.S. Department of the Treasury, the U.S. Department of State, the U.S. Department of Commerce or any other U.S. government authority or department; (c) EU restrictive measures implemented pursuant to any EU Council or Commission Regulation or Decision adopted pursuant to a Common Position in furtherance of the EU’s Common Foreign and Security Policy; (d) UK sanctions adopted by the Terrorist Asset-Freezing etc. Act 2010 or other legislation and statutory instruments enacted pursuant to the United Nations Act 1946 or the European Communities Act 1972 or enacted by or pursuant to other Laws; and (e) any other trade, economic or financial sanctions Laws, embargoes or restrictive measures administered, enacted or enforced by any authority, government or official institution as applicable to Company and each of its Subsidiaries or any transaction in which Company or each Subsidiary of the Company is engaged.
“ Sarbanes-Oxley Act ” means the Sarbanes-Oxley Act of 2002, as amended, and the rules and regulations promulgated from time to time thereunder.
“ SEC ” means the U.S. Securities and Exchange Commission.
“ Securities Act ” means the U.S. Securities Act of 1933, as amended, and the rules and regulations promulgated from time to time thereunder.
“ Specified Laws ” means (a) the UKBA or FCPA; (b) applicable trade, economic or financial sanctions Laws, embargoes or other restrictive measures, including (i) Local ABAC Laws, (ii) Applicable Money Laundering Laws, (iii) Sanctions and (iv) applicable Laws prohibiting fraud, tax evasion, insider dealing and market manipulation; (c) applicable Health-Related Requirements; (d) applicable securities Laws, including the Exchange Act, the Sarbanes-Oxley Act and the Securities Act; and (e) applicable Data Privacy and Cybersecurity Rules and Regulations (f) all other Laws of any jurisdiction that are similar to the Laws described in the foregoing clauses (a) – (e).
“ Subsidiary ” means, with respect to any specified Person, any other Person (a) Controlled by such first Person or (b) of which at least a majority of the securities or ownership interests having by their terms ordinary voting power to elect a majority of the board of directors or other
persons performing similar functions is directly or indirectly owned or controlled by such first Person and/or by one or more of its Subsidiaries.
“ Trigger Date ” has the meaning set forth in the Bye-laws.
“ UKBA ” means the UK Bribery Act 2010, as amended.
Section 1.02 Additional Defined Terms . Each of the following terms is defined in the Section set forth opposite such term:
Section 1.03 Other Definitional and Interpretive Matters . Unless otherwise expressly provided herein, for purposes of this Agreement, the following rules of interpretation shall apply:
(a) Calculation of Time . When calculating the period before which, within which or after which any act is to be done or step taken pursuant to this Agreement, the date that is the reference date in calculating such period shall be excluded. If the last day of such period is not a Business Day, the period in question shall end on the next succeeding Business Day.
| (b) | Dollars. Any reference in this Agreement to “$” means U.S. dollars. |
(c) Annexes/Exhibits/Schedules . The Annexes, Exhibits and Schedule to this Agreement are hereby incorporated and made a part hereof and are an integral part of this Agreement. Any capitalized terms used in any Annex, Exhibit or Schedule but not otherwise defined therein shall be defined as set forth in this Agreement.
(d) Gender and Number . Any reference in this Agreement to gender shall include all genders, and words imparting the singular number only shall include the plural and vice versa.
(e) Herein . The words “herein,” “hereof” and “hereunder” refer to this Agreement as a whole and not merely to a subdivision in which such words appear unless the context otherwise requires.
(f) Other . The words “include,” “includes” and “including” when used herein shall be deemed in each case to be followed by the words “without limitation.” The word “extent” in the phrase “to the extent” means the degree to which a subject or other thing extends, and such phrase does not mean simply “if.”
FINANCIAL REPORTING AND DISCLOSURE COVENANTS
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(a) Disclosure of Financial Controls . In connection with the filing of Roivant’s annual and quarterly reports under the Exchange Act or any investigations of prior periods, the Company shall cause its principal executive officer and principal financial officer to provide to Roivant and its Representatives (A) on a timely basis, if this provision is applicable by virtue of Section 2.01(B)(ii) (x) and (B) on a timely basis and if reasonably requested by Roivant, if this provision is applicable by virtue of Sections 2.01(B)(i) or (ii) (y) or (z), (1) certifications to Roivant corresponding to those required under Sections 302 and 906 of the Sarbanes-Oxley Act, (2) any certificate that may be reasonably necessary for Roivant to satisfy the requirements applicable to it under Section 404 of the Sarbanes-Oxley Act, (3) any certificates or other written information that the Company’s principal executive officer or principal financial officer received as support for the certificates provided to Roivant and (4) a reasonable opportunity to discuss with the Company’s principal financial officer and other appropriate officers and employees of the Company any issues reasonably related to the foregoing.
(b) Quarterly Financial Statements .
(i) As soon as reasonably practicable and no later than 15 days before the date by which Roivant is required to file a quarterly report on Form 10-Q if this provision is applicable by virtue of Section 2.01(B) (ii)(x) above or 10 days before the date by which Roivant is required to file a quarterly report on Form 10-Q if this provision is applicable by virtue of Section 2.01(B)(i) or (ii) (y) or (z) above, the Company will deliver to Roivant and its Representatives reasonably complete drafts of (A) the consolidated financial statements of the Company (and notes thereto) for the quarterly periods and for the period from the beginning of the current fiscal year to the end of such quarter, setting forth in each case in comparative form for each such fiscal quarter of the Company the consolidated
figures (and notes thereto) for the corresponding quarter and periods of the previous fiscal year prepared in accordance with Article 10 of Regulation S-X and GAAP and (B) a discussion and analysis by management of the Company’s financial condition and results of operations for such fiscal period, including, without limitation, an explanation of any material period-to-period change and any off-balance sheet transactions, prepared in accordance with Item 303(b) of Regulation S-K. The information set forth in (A) and (B) above is referred to in this Agreement as the “ Quarterly Financial Statements ”. As soon as reasonably possible and no later than 5 days before the date by which Roivant is required to file a quarterly report on Form 10-Q, the Company will deliver to Roivant and its Representatives the final form of the Quarterly Financial Statements; provided , however , that the Company may continue to revise such Quarterly Financial Statements prior to its filing thereof in order to make corrections, updates and changes, which corrections, updates and changes, if substantive, will be delivered by the Company to Roivant as soon as reasonably possible. At Roivant’s request, the Company’s Representatives will consult and discuss with Roivant’s Representatives any such corrections, updates and changes. To the extent that the fiscal year of Roivant is not the same as the fiscal year of the Company or Roivant is not subject to reporting obligations under Section 13(a) or 15(d) of the Exchange Act, the obligation to deliver Quarterly Financial Statements before the date by which Roivant is required to file its quarterly report on Form 10-Q shall be determined based on the date by which the Company is required to file its quarterly report on Form 10-Q.
(ii) As soon as reasonably practicable and no later than 45 days after the end of its fiscal year, the Company will deliver to Roivant and its Representatives its consolidated financial statements (and notes thereto) for the last quarter of its fiscal year, setting forth in each case in comparative form for such fiscal quarter of the Company the consolidated figures (and notes thereto) for the corresponding quarter of the previous fiscal year prepared in accordance with Article 10 of Regulation S-X and GAAP; provided , however , that the Company may continue to revise such financial statements in order to make corrections, updates and changes in connection with the preparation of its audited annual financial statements, which corrections, updates and changes, if substantive, will be delivered by the Company to Roivant as soon as reasonably possible.
(c) Annual Financial Statements . As soon as reasonably practicable and no later than 45 days after the end of its fiscal year if this provision is applicable by virtue of Section 2.01(B)(ii) (x) above or 55 days after the end of its fiscal year if this provision is applicable by virtue of Section 2.01(B)(i) or (ii) (y) or (z) above, the Company will deliver to Roivant and its Representatives reasonably complete drafts of (i) the consolidated financial statements of the Company (and notes thereto) for such year, setting forth in each case in comparative form the consolidated figures (and notes thereto) for the previous fiscal years, prepared in accordance with Article 10 of Regulation S-X and GAAP and (ii) a discussion and analysis by management of the Company’s financial condition and results of operations for such year, including, without limitation, an explanation of any material period-to-period changes and any off-balance sheet transactions, prepared in accordance with Item 303(a) and 305 of Regulation S-K. The information set forth in (i) and (ii) above is referred to in this Agreement as the “ Annual Financial Statements ”. As soon as reasonably possible and no later than 15 days before the date by which Roivant is required to file its annual report on Form 10-K if this provision is applicable by virtue of Section 2.01(B)(ii) (x) above or 10 days before the date by which Roivant is required to file its annual
report on Form 10-K if this provision is applicable by virtue of Section 2.01(B)(ii) (y) or (z) above, the Company will deliver to Roivant and its Representatives the final form of the Annual Financial Statements and an opinion on the Annual Financial Statements by the Company’s independent registered public accountants (the “ Company Auditors ”); provided , however , that the Company may, if necessary, continue to revise such Annual Financial Statements prior to the filing thereof in order to make corrections, updates and changes, which corrections, updates and changes, if substantive, will be delivered by the Company to Roivant as soon as reasonably possible. At Roivant’s request, the Company’s Representatives will consult and discuss with Roivant’s Representatives any such corrections, updates and changes. To the extent that the fiscal year of Roivant is not the same as the fiscal year of the Company or Roivant is not subject to reporting obligations under Section 13(a) or 15(d) of the Exchange Act, the obligation to deliver Annual Financial Statements before the date by which Roivant is required to file its annual report on Form 10-K shall be determined based on the date by which the Company is required to file its quarterly report on Form 10-K.
(d) Supplemental Information . Roivant may reasonably request, and within a reasonable period of time agreed to by Roivant and the Company following such request, the Company shall, at Roivant’s sole cost and expense, make available to Roivant and its Representatives other supplemental information on a monthly, quarterly or annual basis necessary or advisable in order to satisfy Roivant’s financial reporting requirements pursuant to 2.01(B)(ii) above, and other Regulatory and Governance Requirements, the form, substance and timing of such supplemental information to be agreed by Roivant and the Company in advance.
(e) Conformance of Financial Statements . Subject to the other terms in this Agreement, the Company shall not make or adopt any significant changes to its accounting estimates or accounting policies and principles from those in effect on the Effective Date to the extent that such changes would significantly impact Roivant’s financial statements. Notwithstanding the previous sentence, nothing in this Agreement shall prevent the Company making those changes to its accounting estimates or accounting policies and principles if such changes are required by GAAP or which the audit committee of the Company determines are necessary or appropriate for the proper presentation of the Company’s financial statements; provided , however , that the Company shall first consult with Roivant.
(f) Press Releases and Similar Information . The Company and Roivant will consult with each other as to the timing of their annual and quarterly earnings releases and any interim financial guidance for a current or future period and, to the extent reasonably possible. If the Company and Roivant are unable to agree as to such timing, then Roivant and the Company shall each make reasonable efforts to issue their respective annual and quarterly earnings releases at approximately the same time on the same date, which will include for these purposes during the same period of time beginning after the close of market on one day and ending just prior to the opening of market on the next day. Roivant and the Company agree to consult with each other as to the timing of their respective earnings release conference calls.
(g) Cooperation on Filings . The Company agrees to provide to Roivant and its Representatives, and to instruct the Company Auditors to provide to Roivant and its Representatives, all material information with respect to the Company that Roivant reasonably requires in connection with the preparation by Roivant of its Quarterly Reports on Form 10-Q,
Annual Reports to Shareholders, Annual Reports on Form 10-K, any Current Reports on Form 8-K and any registration statements, or other filings made by Roivant with the SEC, any national securities exchange or otherwise made publicly available with respect to the disclosures pertaining to the Company (collectively, the “ Roivant Public Filings ”). The Company and Roivant agree to reasonably cooperate with each other with respect to the requesting and furnishing of such required information in order to enable Roivant to file all Roivant Public Filings within the deadlines as required by applicable law. The Company will cause the Company Auditors (as defined below) to consent to any reference to them as experts in any Roivant Public Filings required under any law, rule or regulation. In addition, Roivant shall provide to the Company necessary and appropriate information that the Company reasonably requires, to the extent Roivant has such information and the Company does not, in connection with required filings made by the Company to a reasonably applicable governmental authority.
(h) Access to the Company Auditors . The Company will authorize the Company Auditors to make reasonably available to Roivant’s auditors both the personnel who performed, or are performing, the annual audit and quarterly reviews of the Company and work papers related to the annual audit and quarterly reviews of the Company, in all cases within a reasonable time prior to Roivant’s auditors opinion date, so that Roivant’s auditors are able to perform the procedures they consider necessary to take responsibility for the work of the Company Auditors as it relates to Roivant’s auditors report on Roivant’s statements.
(i) Access to Records . If Roivant determines in good faith that there may be a material inaccuracy in the Company’s financial statements or deficiency or inadequacy in the Company’s internal accounting controls or operations that could reasonably be expected to materially impact Roivant’s financial statements, and at Roivant’s request, the Company will provide Roivant’s internal auditors with reasonable access to the Company’s books and records so that Roivant may conduct reasonable audits relating to the financial statements provided by the Company under this Agreement, as well as to the internal accounting controls and operations of the Company.
(j) Tax Information . Each Party shall make available to the other and its Representatives all information relating to such Party or any of its Subsidiaries necessary or appropriate to enable the other Party to prepare its federal, state, local and foreign income tax returns; provided that Roivant and its Representatives shall have no obligation to provide information about (A) its directors or investors or (B) its Subsidiaries other than the Company and the Company’s subsidiaries. Such information shall be prepared by the Party making it available at its sole cost and expense, and each Party shall make such information available to the other Party and its Representatives with reasonable promptness in light of the timing applicable to the purpose for which such information is to be used.
(k) Compliance Inspection Rights . Without limiting the generality of the requirements of clause (m) of this Section 2.01 , the Company shall provide Roivant and its Representatives with the right to visit and inspect any of the offices and properties of the Company and its Subsidiaries and inspect the books and records of the Company and its Subsidiaries and controlled Affiliates as they relate to Specified Laws, as well as to review and make copies of correspondence and other documents, however sent or received, possessed by the Company and/or the Company’s Subsidiaries and controlled Affiliates pertaining to compliance with the Policies and Specified Laws, at such times as a Reportable Event has been communicated to the Company’s Board of
Directors for the purpose of verifying and evaluating the Company’s and its Subsidiaries’ compliance with the Company’s Compliance Program, and to make appropriate officers and directors of the Company and its Subsidiaries available at such times as reasonably requested by Roivant for consultation with Roivant and its Representatives with respect to matters relating to the Compliance Program.
(l) Shareholder Information Rights . The Company shall, and shall cause each of its Subsidiaries to, promptly, upon reasonable request, (A) make available to Roivant and its Representatives such information, documents and other materials, whether current, historical or prospective, relating to the business of Company or any of its Subsidiaries and in its possession and control (and subject to any Third Party confidentiality and use obligations) as Roivant may from time to time reasonably request, subject at all times to applicable law regarding the disclosure of any such information; and (B) give Roivant and its Representatives (x) the right to examine and make copies of or extracts from any records of the Company or any of its Subsidiaries for any reasonable purpose, (y) reasonable access to the Company’s and its Subsidiaries’ offices, properties, and employees, and (z) the reasonable opportunity to discuss any matters with the Company’s and its Subsidiaries’ senior management, in the case of each of clauses (A) and (B) in connection with any proper purpose. For the avoidance of doubt, proper purpose includes use by Roivant of any such information, data, documents or other materials for its own internal research purposes, including but not limited to, for purposes of analyzing, and/or deriving learnings from, clinical data provided by the Company to Roivant hereunder; provided that, except for such use rights, in no event does the provision of information hereunder grant Roivant any other rights or licenses under or to any of the Company’s intellectual property, compounds, products or programs.
(m) Provision of Information . The Company shall provide, or cause to be provided, to Roivant, as soon as reasonably practicable after request therefor, confirmation as to whether the Company is in possession of information that would reasonably be considered to be material nonpublic information with respect to the Company under applicable U.S. securities laws, and sufficient additional information as is necessary, in the reasonable judgment of Roivant and its counsel, to determine whether such information is material with respect to Roivant under applicable U.S. securities laws.
(n) Fiscal Year. The Company shall not change its fiscal year without the prior written consent of Roivant.
Section 2.02 Private Company Information Rights . If the Company is not subject to the requirements of Section 2 .01 (a), (b), (c), (f), and (g), then the Company shall make available to Roivant:
(i) consolidated annual financial statements, audited by an accounting firm of international standing and reputation, as soon as practicable, and in any event within 75 Business Days after the end of each fiscal year;
(ii) unaudited consolidated quarterly financial statements, as soon as practicable, and in any event within 40 Business Days after the end of each fiscal quarter;
(iii) an annual budget, as soon as practicable, and in any event at least 20 Business Days prior to the beginning of a fiscal year;
(iv) the Company’s, and each of its Subsidiaries’, capitalization table from time to time, and in any event at least once quarterly within 10 Business Days after the end of each fiscal quarter;
Notwithstanding the foregoing, documents required to be delivered under Section 2.02(i) and (ii), to the extent any such documents are included in materials otherwise filed with the SEC shall be deemed to have been delivered on the date on which the Company files such documents with the SEC and such documents are publicly available on the SEC’s EDGAR filing system or any successor thereto.
Section 3.01 Compliance . The Company shall observe the following requirements:
(a) Adoption of Policies . The Company shall adopt, implement and maintain at all times policies with respect to the Specified Laws as Roivant may from time to time direct, including with respect to regulatory, Quality Management Systems standards, internal controls (including with respect to financial reporting and remediation of deficiencies), audit, compliance, record keeping, document retention, financial reporting, tax and legal requirements (collectively, the “ Policies ”), that, in each case, are (x) applicable to the Company and its Subsidiaries and its and their respective Representatives, (y) consistent with, and no less restrictive than, the corresponding policies established by Roivant, as they may be updated from time to time, and (z) are otherwise satisfactory to Roivant. For the avoidance of doubt, to the extent that Roivant has not established a corresponding policy with respect to a requirement that the Company wishes to establish, which the Company must confirm with Roivant, the Company’s Policy will govern unless and until Roivant establishes a corresponding policy. After such time, the Company’s Policy may continue to govern only if it is no less restrictive than Roivant’s policy. In establishing its corresponding policies, Roivant shall in good faith consider any timely and reasonable requests or inputs from the Company. The Company shall provide Roivant with a copy of each of its Policies upon finalization and shall promptly notify the Company of any updates, amendments or changes thereto.
(b) Compliance Committee . Absent a waiver by Roivant, the Board shall at all times have a Compliance Oversight Committee (the “ Compliance Oversight Committee ”), whose composition, meetings and proceedings shall be subject to the requirements for any other committee of the Board pursuant to the Bye-laws, to oversee the Company’s and its Subsidiaries’ Compliance Program. In administering the Compliance Program, the Compliance Oversight Committee shall:
(i) appoint an individual on the senior management team of the Company (the “ Compliance Officer ”) who will be responsible for the management and administration of the Compliance Program; provided that, until the Compliance Oversight Committee shall
have appointed a Compliance Officer, the principal executive officer of the Company shall perform the duties of the Compliance Officer;
(ii) cause the Company and its Subsidiaries to implement a training and education plan to ensure that the Company’s employees receive adequate training regarding the Compliance Program; and
(iii) cause the Company to establish an internal reporting procedure that includes a confidential hot line mechanism to enable directors, officers, employees and agents of the Company and its Subsidiaries to report to the Compliance Officer (and/or such other person who is not in the reporting individual’s chain of command as the Compliance Oversight Committee may from time to time designate) any identified issues or questions associated with the Company’s policies, conduct, practices or procedures related to the Specified Laws.
(c) Compliance Officer . In administering the Compliance Program, the Compliance Officer shall:
(i) make periodic reports (but in any event at least quarterly) regarding the status of the Compliance Program directly to the Compliance Oversight Committee;
(ii) make reports regarding compliance matters directly to the Board at any time he or she considers appropriate;
(iii) annually certify to the Compliance Oversight Committee (together with the principal executive officer of the Company, if the principal executive officer is not acting as Compliance Officer) that to the best of his or her knowledge and after reasonable due diligence, except as otherwise described in the report, the Company and its Subsidiaries and their respective directors, officers, employees and agents are each in compliance with all Specified Laws applicable to the Company and its Affiliates; provided that, if either the Compliance Officer or the principal executive officer of the Company is unable to provide such a certification, he or she shall provide an explanation directly to the Compliance Oversight Committee of the reasons why he or she is unable to provide such certification; and
(iv) notify the Compliance Oversight Committee of (1) any actual or threatened investigation, regulatory or legal proceeding involving the Specified Laws or (2) any Reportable Event, in each case within 48 hours after discovery of the underlying facts or as soon thereafter as practicable.
(d) Compliance with Law .
(i) The Company shall not, and shall cause its Subsidiaries and its and their respective directors, officers, employees and agents not to, directly or indirectly, make, offer, promise or authorize any payment or transfer of any money or anything of value to or for the benefit of a Government Official or individual employed by another entity in the private sector that would violate either the UKBA or the FCPA or engage in any conduct
that would reasonably be expected to be deemed to violate the UKBA or the FCPA in any material respect.
(ii) The Company shall not, and shall cause its Subsidiaries and its and their respective directors, officers and employees not to, directly or indirectly, make, offer, promise or authorize any payment or transfer of any money or anything of value to or for the benefit of a Government Official or individual employed by another entity in the private sector that would violate Local ABAC Laws or engage in any conduct that would reasonably be expected to be deemed to violate Local ABAC Laws, Applicable Money Laundering Laws, Sanctions or applicable Laws prohibiting fraud, tax evasion, insider dealing and market manipulation in any material respect.
(iii) The Company shall, and shall cause each of its direct and indirect Subsidiaries to, keep and maintain books and records reflecting accurately and in reasonable detail transactions involving the Company and its direct and indirect Subsidiaries and to implement financial controls giving reasonable assurance that payments will be made by or on behalf of the Company and its direct and indirect Subsidiaries only in accordance with management instructions.
(iv) The Company shall, and shall cause its Subsidiaries and its and their respective directors, officers and employees to, otherwise comply in all material respects with all Specified Laws.
(e) Participation on Expert Councils . To facilitate collaboration and best practices amongst Roivant, the Company and other Affiliates of Roivant and the Company, Roivant may from time to time sponsor expert councils (the “ Expert Councils ”). The Company shall participate in such Expert Councils by appointing an individual with relevant expertise to each such Expert Council. No such Expert Council shall be convened on more than a semi-annual basis, unless urgent circumstances dictate otherwise. The objectives of the Expert Councils shall include facilitating discussion on changes in the applicable field of expertise, trends in the field and experiences, best practices and issues of a general nature. All proceedings of an Expert Council shall be subject to the terms of confidentiality set forth in Article 4 .
EXCHANGE OF INFORMATION; CONFIDENTIALITY