ACCOUNTANTS APPOINTED BY BVP, A CFC WITH RESPECT TO
THE SHARES HELD BY BVP, THE COMPANY SHALL AND THE FOUNDER SHALL PROCURE THAT THE
COMPANY SHALL USE REASONABLE ENDEAVOURS TO ENSURE THAT IT MINIMISES, TO THE
EXTENT PRACTICABLE, ANY SUBPART F INCOME;
(D)
THE COMPANY SHALL USE ITS REASONABLE
ENDEAVOURS TO AVOID BEING A PFIC.
THE COMPANY SHALL MAKE DUE INQUIRY WITH ITS
TAX ADVISORS ON AT LEAST AN ANNUAL BASIS REGARDING ITS STATUS AS A PFIC, AND IF
THE COMPANY IS INFORMED BY ITS TAX ADVISORS THAT IT HAS BECOME A PFIC, OR THAT
THERE IS A LIKELIHOOD OF THE COMPANY BEING CLASSIFIED AS A PFIC FOR ANY TAXABLE
YEAR, THE COMPANY SHALL PROMPTLY NOTIFY BVP OF SUCH STATUS OR RISK, AS THE CASE
MAY BE.
IN THE EVENT THAT BVP NOTIFIES THE COMPANY IN WRITING THAT IT HAS MADE
A QEF ELECTION, THE COMPANY SHALL AND THE FOUNDER SHALL PROCURE THAT THE COMPANY
SHALL:
(I)
AS SOON AS REASONABLY PRACTICABLE
FOLLOWING THE END OF EACH TAXABLE YEAR OF THE COMPANY (BUT IN NO EVENT LATER
THAN 90 DAYS FOLLOWING THE END OF EACH SUCH TAXABLE YEAR) PROVIDE TO BVP AN
ANNUAL PFIC INFORMATION STATEMENT; AND
(II)
DURING BUSINESS HOURS, PROVIDE ACCESS TO
BVP TO THE COMPANY'S BOOKS, RECORDS, DOCUMENTS, INFORMATION AND EMPLOYEES AS IS
REASONABLY REQUIRED BY BVP IN ORDER THAT IT MAY PREPARE AND FILE US FEDERAL
INCOME TAX RETURNS IN CONNECTION WITH SUCH QEF ELECTION;
(E)
THE COMPANY SHALL, AND THE FOUNDER SHALL
PROCURE THAT THE COMPANY SHALL, TAKE SUCH ACTION AS IS REASONABLY NECESSARY
INCLUDING, WITHOUT LIMITATION, MAKING AN ELECTION TO BE TREATED AS A CORPORATION
(FOR THE PURPOSES OF THE CODE) OR REFRAINING FROM MAKING AN ELECTION TO BE
TREATED AS A PARTNERSHIP (FOR THE PURPOSES OF THE CODE) AS MAY BE REASONABLY
REQUIRED BY BVP, ACTING ON THE ADVICE OF ITS COUNSEL OR ACCOUNTANTS, TO ENSURE
THAT THE COMPANY IS, AT ALL TIMES, TREATED AS A CORPORATION FOR UNITED STATES
FEDERAL INCOME TAX PURPOSES; AND
the Company shall make due inquiry with its tax advisors on at least an annual
basis regarding whether BVP's interest in the Company is subject to the
reporting requirements of either or both of Sections 6038 and 6038B of the Code
(and the Company shall duly inform BVP of the results of such determination),
and in the event that the Company's tax advisors or BVP's tax advisors determine
that BVP's
21
interest in Company is subject to such reporting requirements, Company agrees,
upon a request from BVP, to provide such information to BVP as may be necessary
to fulfil BVP's obligations thereunder.
16.2
IN ADDITION TO THE PREFERENTIAL DIVIDEND (AS
DEFINED IN THE ARTICLES) AND WITHOUT PREJUDICE TO THE ENTITLEMENT TO RECEIVE THE
PREFERENTIAL DIVIDEND IN ITS ENTIRETY, IF ANY MAJOR INVESTOR IS REQUIRED AS A
RESULT OF THE APPLICATION OF THE CFC RULES OR A QEF ELECTION TO THE COMPANY TO
INCLUDE ANY AMOUNT IN GROSS INCOME FOR UNITED STATES FEDERAL INCOME TAX
PURPOSES, THE INVESTOR