Provision Language
12. Prohibited Uses
The Company shall not expend any proceeds of the BMGF Investment to carry on propaganda or otherwise to attempt to influence legislation, to influence the outcome of any specific public election or to carry on, directly or indirectly, any voter registration drive, or to participate or intervene in any political campaign on behalf of or in opposition to any candidate for public office within the meaning of Section 4945(d) of the Code. The proceeds of the BMGF Investment shall not (i) be earmarked to be used for any activity, appearance or communication associated with the activities described in the foregoing sentence nor (ii) be intended for benefit, and will not benefit, any person having a personal or private interest in the Foundation, including without limitation, descendants of the founders of the Foundation, or persons related to or controlled by, directly or indirectly, such private interests.
13. Disqualified Person
Neither the Company nor (to the best knowledge of the Company) any shareholder of the Company is a “disqualified person” with respect to the Foundation (as the term “disqualified person” is defined in Section 4946(a) of the Code). The Foundation does not, and one or more disqualified persons with respect to the Foundation do not, directly or indirectly, control the Company.
14. Promotion of Terrorist Activities
In compliance with the provisions of the Patriot Act and Executive Order 13224, the Company represents that it will not promote or support terrorist activities and that it will not provide any proceeds of the BMGF Investment to any entity or individual that promotes or engages in such activities.
19. Additional Company Representations and Warranties
The Company hereby represents and warrants to the Foundation that, as of the date of this Letter Agreement, the representations and warranties set forth in Section 3 of the Purchase Agreement are true and correct in all material respects as of the date hereof, except to extent of any disclosures by the Company as set forth in the Schedule of Exceptions delivered by the Company in connection with the Closing (as defined in the Purchase Agreement) or in the Schedules attached hereto. In addition, except as set forth in the Schedules attached hereto, the Company hereby represents and warrants to the Foundation, as of the date hereof, as follows:
a. Changes. Since the Statement Date (as defined in the Purchase Agreement), there has not been:
i. any material change to a material contract or agreement by which the Company or any of its assets is bound or subject;
ii. any (x) material change in any compensation arrangement or agreement with any employee, officer, director or stockholder or (y) resignation or termination of employment of any officer or key employee of the Company; or (z) loans or guarantees made by the Company to or for the benefit of its employees, officers or directors, or any members of their immediate families, other than travel advances and other advances made in the ordinary course of its business;
iii. any mortgage, pledge, transfer of a security interest in, or lien, created by the Company, with respect to any of its material properties or assets, except liens for taxes not yet due or payable and liens that arise in the ordinary course of business and do not materially impair the Company’s ownership or use of such property or assets;
iv. other than repurchases of Common Stock that are unvested or exercises by the Company of its right of first refusal (each, a “Permitted Distribution”), any declaration, setting aside or payment or other distribution in respect of any of the Company’s capital stock, or any direct or indirect redemption, purchase, or other acquisition of any of such stock by the Company;
v. receipt of notice that there has been a loss of, or material order cancellation by, any major customer of the Company; or
vi. any arrangement or commitment by the Company to do any of the things described in this Section 19.a.
b. Agreements; Actions
i. Except for the Related Agreements (as defined in the Purchase Agreement) or as described in the Memorandum (as defined in the Purchase Agreement), there are no agreements, understandings, instruments, contracts or proposed transactions to which the Company is a party or by which it is bound that involve (A) obligations (contingent or otherwise) of, or payments to, the Company in excess of $500,000, or (B) the grant of rights to manufacture, produce, assemble, license, market, or sell its products to any other person that limit the Company’s exclusive right to develop, manufacture, assemble, distribute, market or sell its products.
ii. Since the Statement Date, the Company has not (A) declared or paid any dividends, or authorized or made any distribution upon or with respect to any class or series of its capital stock in each case other than any Permitted Distribution, (B) made any loans or advances to any person, other than ordinary advances for travel expenses, or (C) other than in the ordinary course of business sold, exchanged or otherwise disposed of any of its assets or rights the sale, exchange or other disposition of which would have or would reasonably be likely to have a Material Adverse Effect.
iii. The Company is not a guarantor or indemnitor of any indebtedness of any other person.
c. Employees. To its knowledge, the Company has complied in all material respects with all applicable state and federal equal employment opportunity laws and with other laws related to employment, including those related to wages, hours, worker classification and collective bargaining. Except as required by law, upon termination of the employment of any such employees, no severance or other payments will become due.
d. Foreign Corrupt Practices Act. Neither the Company nor, to its knowledge, any of the Company’s directors, officers, employees or agents have, directly or, to the Company’s knowledge, indirectly, made, offered, promised or authorized any payment or gift of any money or anything of value to or for the benefit of any “foreign official” (as such term is defined in the U.S. Foreign Corrupt Practices Act of 1977, as amended (the “FCPA“)), foreign political party or official thereof or candidate for foreign political office for the purpose of (i) influencing any official act or decision of such official, party or candidate, (ii) inducing such official, party or candidate to use his, her or its influence to affect any act or decision of a foreign governmental authority, or (iii) securing any improper advantage, in the case of (i), (ii) and (iii) above in order to assist the Company or any of its affiliates in obtaining or retaining business for or with, or directing business to, any person. Neither the Company nor, to the Company’s knowledge, any of its directors, officers, employees or agents have made or, to the Company’s knowledge, authorized any bribe, rebate, payoff, influence payment, kickback or other unlawful payment of funds or received or retained any funds in violation of any law, rule or regulation. To the Company’s knowledge, neither the Company nor any of its officers, directors or employees is the subject of any allegation, voluntary disclosure, investigation, prosecution or other enforcement action related to the FCPA or any other anti-corruption law.
For purposes of this Section 19, “Company” shall include the Company’s wholly-owned subsidiary, Atreca Pte. Ltd, a limited company organized under the laws of Singapore.
