1. Charitable Purposes and Use of Funds
In addition, the Company agrees to use a minimum of $[**] specifically to fund the development of [**] protein and potential vaccines and therapeutics (the “[**] Program”) as outlined in Appendix 1, attached hereto, which may include vaccines and therapeutics under development by Foundation partners, to the extent mutually agreed by the Company, the Foundation and such partners. The scope of work for the [**] Program will be as specified in Appendix 1. Within [**] months following the delivery by the Foundation of each Tranche, the Company agrees to provide a report to the Foundation detailing the progress achieved to date on the [**] Program certifying as to the costs and expenses incurred by the Company for the [**] Program for such [**] month period (the “[**] Program Report”). The Company is not required to segregate the proceeds of the Foundation’s investment from other Company funds.
2. Global Access Commitments
(a) Unfunded Development Programs:
The Foundation will notify the Company in writing if it desires to receive Disease Information. The Company will provide such Disease Information promptly to the Foundation and in a form and format to be mutually agreed. In the event the Company reasonably determines, in its good faith judgment, that any such Disease Information is confidential information of the Company, it shall be eligible for protection as provided for in a confidentiality agreement to be negotiated between the Company and the Foundation.
5. 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 ninety days after the end of the Company’s fiscal year during which the Foundation owns any shares in the Company, 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 Foundation Investment set forth in this Letter Agreement were met during the immediately preceding fiscal year, describing the use of the proceeds of the Foundation Investment and evaluating the Company’s progress toward achieving the Global Access Commitments and, if applicable for the period, the [**] Program Report;
b. Within ninety days after the end of the Company’s fiscal year during which the Foundation ceases to own any shares in the Company, 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 Foundation Investment set forth in this Letter Agreement were met during the term of the Foundation Investment, describing the use of the proceeds of the Foundation Investment and evaluating the Company’s progress toward achieving the Global Access Commitments and, if applicable for the period, the [**] Program Report;
c. Any other information respecting the operations, activities and financial condition of the Company as the Foundation may from time to time reasonably 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 Foundation Investment, and to otherwise monitor the charitable benefits intended to be served by the Foundation Investment (which shall be at the Foundation’s expense); and
d. Full and complete financial reports of the type ordinarily required by commercial investors under similar circumstances, which requirement may be satisfied by the Company by delivery to the Foundation of the audits and reports specified in Section 6 of the Series A Stock Purchase Agreement (as it may be amended or restated). 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 these financial reporting obligations. Notwithstanding the lead-in paragraph of Section 6.1 of the Series A Stock Purchase Agreement, so long as the Foundation owns any shares in the Company, the Company shall provide and deliver to the Foundation copies of the reports and audits specified in Section 6 of the Series A Stock Purchase Agreement.
All information included in the foregoing reports shall constitute the confidential information of the Company and shall be eligible for protection as provided for in a confidentiality agreement to be negotiated between the Company and the Foundation, subject to the right of the Foundation to disclose such information as may be required to satisfy its reporting requirements under the Code.
7. Public Reports
The Foundation may include information about the Company in its periodic public reports to the extent such information is not confidential.
11. Use of Name
The Foundation may include information on this investment in its periodic public reports and may make the investment public at any time on its web page and as part of press releases, public reports, speeches, newsletters and other public documents. Any announcement of the Foundation Investment by any other party, including the Company, its representatives, directors, stockholders and agents, or any investor, will require the Foundation’s prior written approval. Such parties shall also obtain the Foundation’s prior written approval for any other use of the Foundation’s name or logo in any respect; provided, however, that the Company may use the Foundation’s name for any uses that have been pre- approved in writing by the Foundation. Notwithstanding the foregoing, the Foundation’s name and logo will not be used by any party in any manner to market, sell or otherwise promote the Company, its products, services and/or business.