Provision Language
9. Required Reporting and Inspection Rights
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 ninety days after the end of the Company’s fiscal year during which the Foundation owns any portion of the Foundation’s Holdings, a certificate from the Company signed by an officer or director of the Company and substantially in the form attached to this Letter Agreement, certifying that the requirements of the BMGF Investment were met during the immediately preceding fiscal year, describing the use of the proceeds of the BMGF Investment, and evaluating the Company’s progress toward achieving the purposes of the BMGF Investment including, specifically, information regarding progress against the Global Access Commitments;
b. within ninety days after the end of the Company’s fiscal year during which the Foundation ceases to own any portion of the Foundation’s Holdings, a certificate from the Company signed by an officer or director of the Company and substantially in the form attached to this Letter Agreement, certifying that the requirements of the BMGF Investment were met during the term of the BMGF Investment, describing the use of the proceeds of the BMGF Investment, and evaluating the Company’s progress toward achieving the purposes of the BMGF Investment including, specifically, information regarding progress against the Global Access Commitments;
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, within the meaning of Sections 4945(d)(4) and 4945(h) of the Code, of the Foundation with respect to the BMGF Investment, and to otherwise monitor the charitable benefits intended to be served by the BMGF Investment (which shall be at the Foundation’s expense);
d. (i) within one hundred eighty days after the end of each fiscal year of the Company, the Company shall provide to the Foundation a balance sheet, income statement and statement of cash flows for such preceding fiscal year, all in reasonable detail and audited by independent certified public accountants selected by the Company (“Company’s Accountants“), and such financial statements shall be accompanied by a report and opinion thereon by the Company’s Accountants; (ii) within ninety days after the end of each fiscal year of the Company, the Company shall provide to the Foundation an unaudited balance sheet, income statement and statement of cash flows for such preceding fiscal year as prepared in accordance with generally accepted accounting principles; and (iii) within forty-five days after the end of each fiscal quarter of the Company, the Company shall provide to the Foundation an unaudited balance sheet, income statement and statement of cash flows for such quarter as prepared in accordance with generally accepted accounting principles; provided, however, that if the Company merges with, is acquired by or becomes, a reporting company under the Securities Exchange Act of 1934, as amended, the filing of quarterly and annual reports with the S.E.C. shall be deemed to satisfy the financial reporting obligations pursuant to this Section 3.d; and provided further that if, for any period, the Company has any subsidiary whose accounts are consolidated with those of the Company, then in respect of such period the financial statements delivered pursuant to the foregoing sections shall be the consolidated and consolidating financial statements of the Company and all such consolidated subsidiaries;
e. at least thirty days prior to the end of each fiscal year, a budget and business plan for the next fiscal year, approved by the Board of Directors of the Company, and prepared on a monthly basis, including balance sheets, income statements, and statements of cash flow for such months and, promptly after prepared, any other budgets or revised budgets prepared by the Company;
f. such other information relating to the financial condition, business, prospects, or corporate affairs of the Company as the Foundation may from time to time reasonably request; provided, however, that the Company shall not be obligated under this Section 3.f to provide information (i) that the Company reasonably determines in good faith to be a trade secret; or (ii) the disclosure of which would adversely affect the attorney-client privilege between the Company and its counsel;
g. all information, including the terms and conditions, in this Letter Agreement and provided in the future with respect to the commitments and performance of the Company hereunder shall be treated as confidential information and subject to the Mutual Nondisclosure Agreement dated March 18, 2012; provided that at all times the Foundation shall be permitted to disclose such information as may be required to satisfy its reporting requirements under the Code.
10. Access to Records and Facilities
The Company shall maintain books and records adequate to provide the information ordinarily required by commercial investors under similar circumstances, and provide the Foundation access to such books and records. Such reports shall be maintained for four years after the BMGF Investment has terminated. The Company shall permit the Foundation, at the Foundation’s expense and in connection with its rights under this Letter Agreement, to visit and inspect the Company’s properties; examine its books of account and records; and discuss the Company’s affairs, finances, and accounts with its officers, during normal business hours of the Company as may be reasonably requested by the Foundation.
11. Public Reports
The Foundation may include information about the Company in its periodic public reports to the extent such information is not confidential. The Company may include information about the Foundation in its periodic reports to the extent such information is not confidential, provided that if such disclosure is required by law, rule, regulation or administrative process, such confidentiality shall not prevent the Company from disclosing such information (solely to the extent required by such law, rule, regulation or administrative process).
