Provision Language
Definitions
“Project Commencement Period” means the period ending on the 10–year anniversary of this Agreement.
3. Global Access Commitments
(b) Access to Project Data and Information. Subject to Existing Agreements, the Company will [*****] to: […]
(ii) Promptly provide to the Foundation from time to time, upon the Foundation’s request and with the agreement of the relevant Foundation–supported Entity (as appropriate), access to data and information regarding each Project, subject to the conclusion of a confidential disclosure agreement among the Foundation, the Company and, as necessary and appropriate and only upon the Company’s prior written consent (not to be unreasonably withheld or delayed) the relevant Foundation–supported Entity.
(iii) Promptly provide to the Foundation from time to time, upon the Foundation’s request, rights to share data and information developed in connection with each Project, with due regard to the need to protect confidential information and to avoid untimely public disclosures that may bar access to patent protection or public disclosures that may undermine trade secret protection.
[…]
(f) The Company will provide to the Foundation the reports regarding program–related investments and such other reports as may be agreed upon between the Company and the Foundation and reasonable audit rights regarding the Company’s Compliance with the use of the Foundation’s funds and the Global Access Commitments.
9. Required Reporting
In addition to any and all reports required to be delivered to the Foundation under the Investment Documents, the Company shall furnish, or cause to be furnished, to the Foundation the following reports and certifications:
(a) Within [*****] after the end of the Company’s fiscal year during which the Foundation owns any shares of stock of the Company, a certificate from the Company signed by an officer or director of the Company and substantially in the form attached to this Agreement as Appendix 6, certifying that the requirements of the Foundation Investment were met during the immediately preceding fiscal year, describing the use of the proceeds of the Foundation Investment and evaluating the Company’s development of the Platform Technology and use of the Platform Technology to advance drug and vaccine candidates in support of the Foundation’s Charitable Purpose, and progress on the New Facility, and the Projects including, specifically, information regarding progress against the Global Access Commitments;
(b) Within [*****] after the end of the Company’s fiscal year during which the Foundation ceases to own any shares of stock of theCompany, a certificate from the Company signed by an officer or director of the Company and substantially in the form attached to this Agreement as Appendix 7, certifying that the requirements of the Foundation Investment were met during the term of the Foundation Investment, describing the use of proceeds of the Foundation Investment and evaluating the Company’s development of the Platform Technology and use of the Platform Technology to advance drug and vaccine candidates in support of the Foundation’s Charitable Purpose, and progress on the New Facility, and the Projects including, specifically, information regarding progress against the Global Access Commitments;
For the avoidance of doubt, if the Company has provided timely reports pursuant to Sections 9(a) and 9(b) that contain information sufficient to enable the Foundation to discharge any expenditure responsibility of the Foundation, within the meaning of Sections 4945(d)(4) and 4945(h) of the Code, with respect to the Foundation Investment, the Company will not be liable for a Charitability Default pursuant to Sections 9(a) or 9(b).
(c) Any other information respecting the operations, activities and financial condition of the Company as the Foundation may from time to time request to discharge any expenditure responsibility of the Foundation, within the meaning of Sections 4945(d)(4) and 4945(h) of the Code, with respect to the Foundation Investment, and to otherwise monitor the charitable benefits intended to be served by the Foundation Investment (the Foundation will pay the reasonable costs associated with preparing such information at its request);
(d) At least [*****], full and complete financial reports of the type ordinarily required by commercial investors under similar circumstances; and
(e) During the Project Commencement Period, within [*****] of the end of each calendar quarter, Company will (A) provide the Foundation with written reports in form and detail reasonably satisfactory to the Foundation and confer with the Foundation (by teleconference or in scheduled site visits as appropriate) regarding progress with respect to the Projects including information regarding progress against the Global Access Commitments and (B) coordinate with the Foundation to determine reasonable times for the Foundation’s representatives to make site visits to the Company’s facilities and to conduct any inspections with respect to the Projects. Such site visits may be conducted in [*****] by a consultant selected by the Foundation and approved by the Company (such approval not to be unreasonably withheld or delayed) who is subject to a confidentiality agreement that is reasonably acceptable to the Company and the Foundation.
11. Access to Records
The Company shall maintain books and records adequate to provide information ordinarily required by commercial investors under similar circumstances. The Company shall provide the Foundation or its designee(s) access at reasonable times to such books and records pertaining to the period during which the Foundation owned any shares of stock of the Company and continuing for a period of [*****]after the later of: (a) the date on which the Foundation no longer owns any shares of stock of the Company or (b)the date on which this Agreement is no longer in effect. Notwithstanding the foregoing, as long as the funds from the Foundation Investment are fully expended prior to the [*****] anniversary of the Effective Date, the Company shall not be required to maintain or provide the Foundation access to such books and records for more than [*****] from generation of the individual information. For the avoidance of doubt, the Foundation’s access to records under this Section shall not be dependent upon the Foundation’s percentage ownership in the Company.
Appendix 6: [OFFICER’S/DIRECTOR’S] CERTIFICATE, CUREVAC GMBH
This certificate is being delivered by CureVac GmbH is a private, for–profit company having its business address at Paul–Ehrlich–Str. 15, 72076 Tübingen (the “Company”), pursuant to Section 9(a) of the Global Access Commitments Agreement between the Company and the Bill & Melinda Gates Foundation dated as of [ ](the “Agreement”). Capitalized terms used but not otherwise defined herein shall have the meanings ascribed to them in the Agreement.
The Company certifies as follows:
1. During the fiscal year ended [DATE], the Company met the requirements of the Foundation Investment as set forth in the Agreement that were required to be complied with or performed by the Company during such time period.
2. Attached as Exhibit A to this certificate is a description of the Company’s use of proceeds of the FoundationInvestment during the fiscal year ended [DATE].
3. Attached as Exhibit B to this certificate is the Company’s evaluation of the Company’s development of the Platform Technology and use of the Platform Technology to advance drug and vaccine candidates in support of the Foundation’s Charitable Purpose, and progress with respect to the New Facility and Projects, including information regarding progress against the Global Access Commitments (as set forth in the Investment Documents) during the fiscal year ended [DATE].
IN WITNESS WHEREOF, the undersigned has executed this certificate and has caused this certificate to be delivered on the date first above written.
Appendix 7: [OFFICER’S/DIRECTOR’S]CERTIFICATE, CUREVAC GMBH
This certificate is being delivered by CureVac GmbH is a private, for–profit company having its business address at Paul–Ehrlich–Str. 15, 72076 Tübingen (the “Company”), pursuant to Section 9(b) of the Global Access Commitments Agreement between theCompany and the Bill & Melinda Gates Foundation dated as of [ ] (the “Agreement”). Capitalized terms used but not otherwise defined herein shall have the meanings ascribed to them in the Agreement.
The Company certifies as follows:
1. During the term of the Foundation Investment, the Company met the requirements of the Foundation Investment asset forth in the Agreement that were required to be complied with or performed by the Company during such time period.
2. Attached as Exhibit A to this certificate is a description of the Company’s use of proceeds of the FoundationInvestment during the term of the Foundation Investment.
3. Attached as Exhibit B to this certificate is the Company’s evaluation of the Company’s development of the Platform Technology and use of the Platform Technology to advance drug and vaccine candidates in support of the Foundation’s Charitable Purpose, and progress with respect to the New Facility and Projects, including information regarding progress against the Global Access Commitments (as set forth in the Investment Documents) during the term of the Foundation Investment.
IN WITNESS WHEREOF, the undersigned has executed this certificate and has caused this certificate to be delivered on the date first above written.